from the government, are transferred by delivery of possession without deed or other writing. Nevada Ditch Co. v. Bennett, 30 Ore. 59 (45 Pac. Rep. 472; 60 Am. St. Rep. 777). The rights of the lessor to the use of an irrigation ditch constructed and maintained by him in common with others pass to his lessee. Stevens v. Wadleigh, Rep. 70).

Ariz.

(46 Pac.

Sec. 419. Appropriation of waters-Statutes of Idaho construed. Construing and applying Idaho Const., Art. 15, §§ 1-6; Laws 1895, p. 174, it is held that the waters of the state are subject to appropriation for rental, sale or distribution; that when so appropriated and taken out, the said waters become a public use and are dedicated to the public; that the owners of canals and ditches are entitled to a reasonable compensation for appropriating and delivering said water; that those owning or controlling lands under said ditches or canals are entitled to the use of such waters therein, upon paying or tendering to the owners of such canals a reasonable compensation for such use; and when such waters are so used for one year, or a term of years, the right to such use becomes perpetual, unless limited by contract; and the district court is authorized by the statute to determine, under all circumstances, what is a reasonable compensation, and what are rea sonable terms, for the use of water, either annually, or for a term of years; and mandamus does not lie until a rate is fixed. Wilterding v. Green, Idaho (45 Pac. Rep. 134).

Sec. 420. Construction of statutes. Cal. Stat. 1887, p. 40, construed and applied-irrigation district-assessment of contiguous lots-levy by board of directors. Cooper v. Miller, 113 Cal. 238 (45 Pac. Rep. 325). Cal. Stat. 1891, p. 147, § 15, construed and applied-irrigation districts-issuance of bonds-basis of estimate. Cullen v. Glendora Water Co., 113 Cal. 503 (45 Pac. Rep. 822). Construing Mont. Comp. Stat., § 1240, subd. 5, which confers upon any person, corporation or company, owning or holding lands without available water facilities upon the same, an absolute right of way over the lands of others, for the purpose of constructing ditches, by which to appropiate water rights, it is held that

before such a right can be exercised it must be definitely ascertained by a proper proceeding in eminent domain. Emerson v. Eldorado Ditch Co., 18 Mont. 247 (44 Pac. Rep. 969). Wyo. Rev. Stat., § 1317; Act Mar. 11, 1886, construed and applied-irrigation rights of persons owning lands bordering on a stream-filing of statement of appropriating claims. Moyer v. Preston, Wyo. (44 Pac. Rep. 845). Wash. Act Mar. 22, 1895, concerning irrigation districts, held unconstitutional. Percival v. Cowychee & Wild Hollow Irr. Dist., 15 Wash. 480 (46 Pac. Rep. 1035. Under the Colorado statute governing the appropriation of water rights for the purposes of irrigation, a party waives his right to have the damages assessed by commissioners by proceeding to trial before a jury. In a proceeding to condemn land covered by water, where there is no question respecting the title to the water itself other than that which comes from the ownership of the land beneath, there is no recoverable damage other than the value of the land taken, and the resulting damage to the balance of what may be owned by the respondent. All waters of this state are now subject to appropriation, whether they be running waters or waters coming from springs or derived from seepage. Siedler v. Seely, 8 Colo. App. 499 (46 Pac. Rep. 848).

Sec. 421. Actions and adjudications concerning water rights-Judgments-Power of court. One who has appropriated and used water in a uniform manner for more than twenty years is entitled to have a judgment confirming his rights in the water. Santa Paula Waterworks v. Peralta, 113 Cal. 38 (45 Pac. Rep. 168). Where the rights of appropriators of water have been fixed by a judicial decree under the terms of which all parties have acted for a period of years, they are estopped to question its validity, and are bound by the same. Colo. Gen. Stat. 1883, § 1797, applied. Boulder & Weld Ditch Co. v. Lower Boulder Ditch Co., 22 Colo. 115 (43 Pac. Rep. 540). In an action to determine water rights the judgment should fix the extent of the superior right definitely, designating the quantity of water to be allowed to the party whose claim is paramount, and a judgment which fails to do this or is not supported by the plead

ings is erroneous. Riverside Water Co. v. Sargent, 112 Cal. 230 (44 Pac. Rep. 560). In fixing the rights of riparian owners to use the water of a stream for irrigation a court of equity may make an apportionment of the flow of a stream by periods of time rather than by a division of its quantity so that upper and lower proprietors may each have the full flow for designated periods instead of a portion of the flow for all the time, when such apportionments would best secure the rights of the parties; and such apportionment may be extended to the use of the water for domestic purposes, when necessary. Wig. gins v. Muscupiabe Land & Water Co., 113 Cal. 182 (45 Pac. Rep. 160; 54 Am. St. Rep. 337; 32 L. R. A. 667). Colo. Const., Art. 6, § 11; Laws 1879, p. 99, § 19; Laws 1881, p. 159, § 34, construed and applied-jurisdiction of district court to adjudicate irrigation rights. Louden Irr. Canal Co. v. Handy Ditch Co., 22 Colo. 102 (43 Pac. Rep. 535). Colo. Gen. Stats., § 1766, construed and applied-adjudication of interests in irrigation ditch-practice. Putnam v. Curtis,

Colo. App. (43 Pac. Rep. 1056). An action for mandamus to compel the delivery of water for irrigation should be dismissed where it appears from the evidence that the object of the action is to construe a contract and establish the title of the petitioner to a water right. Farmers' High Line Canal & Res. Co. v. People, 8 Colo. App. 246 (45 Pac. Rep. 543). Action against irrigation corporation to compel the furnishing of water-defenses. Cal. Const., Art. 14, § 1; Civ. Code, § 552, construed and applied. Merrill v. Southside Irr. Co., 112 Cal. 426 (44 Pac. Rep. 720). Action for damages against an irrigation company for refusal to supply water -demand-sufficiency of evidence-measure of damagesright to preference. Colo. Gen. Stat. 1883, § 1740, applied. Watt v. Nevada Cent. R. Co., 23 Nev. 154 (44 Pac. Rep. 423; 62 Am. St. Rep. 772). Action against irrigation corporation for negligence in the care of its ditches-customevidence. Jenkins v. Hooper Irr. Co., 13 Utah 100 (44 Pac. Rep. 829).

Sec. 422. Water rights on public lands. Where three persons desirous of fitting a body of public land for habitation by their families and others, enter thereon, give the customary

notice of an appropriation of a certain amount of water from a public stream, survey their ditches and prosecute the work of irrigation with due diligence, the priority of the appropriation will be protected for the benefit of those completing the work and is unaffected by the dropping out of one of the originators of the plan. Nevada Ditch Co. v. Bennett, 30 Ore. 59 (45 Pac. Rep. 472; 60 Am. St. Rep. 777). One who derives title through a patent from the government, "subject to any vested and accrued water rights," is estopped from claiming as an appurtenance an appropriation of water from a public stream which had been used by the government as against any persons who had acquired rights as appropriators, prior to the issuance of the patent. Nevada Ditch Co. v. Bennett, 30 Ore. 59 (45 Pac. Rep. 472; 60 Am. St. Rep. 777). U. S. Rev. Stat., §§ 2339, 2340, construed and applied-location and maintenance of water right on unoccupied public lands-estoppel. Scott v. Toomey 8 S. Dak. 639 (67 N. W. Rep. 838). For further construction of these sections in reference to lands granted to the Pacific railroads, see Tynon v. Despain, 22 Colo. 240 (43 Pac. Rep. 1039). For construction of these sections in connection with Colo. Gen. Stat. 1883, § 1720, as amended by Sess. Laws 1887, p. 314, in reference to the time the right of way for ditches and canals becomes vested and has priority, see Jarvis v. State Bank, 22 Colo. 309 (45 Pac. Rep. 505; 55 Am. St. Rep. 129).

Sec. 423. Miscellaneous notes. The appropriation of water by an alien in California in 1865 was held valid. Santa Paula Waterworks v. Peralta, 113 Cal. 38 (45 Pac. Rep. 168). After a parol license to construct and maintain an irrigating ditch over the land of the licensor has been executed by the construction of the ditch, it is not revocable. Tynon v. Despain, 22 Colo. 240 (43 Pac. Rep. 1039). For particular fact case as to the cancellation of the grant of a right of way for an irrigation ditch on the ground of false representations, see Barfield v. Southside Irrigation Co., 111 Cal. 118 (43 Pac. Rep. 406). For construction of particular irrigation contract, see Brighton & N. P. Irr Co. v. Little, 14 Utah 42 (46 Pac. Rep. 268).

JUDICIAL SALES.

EPITOME OF CASES.

Sec. 424. Appraisement.

Objections to the appraisement should be made, and, with a motion to vacate the appraisement, be filed, in the cause in which the sale is about to be effected, before the sale. Overall v. McShane, 49 Neb. 64 (68 N. W. Rep. 383). Appraisers in judicial sales act judicially, and the parties, including the purchaser, are, in collateral proceedings, bound by the appraisement. Where a lien junior to that foreclosed was erroneously by the appraisers treated as a senior lien, and its amount deducted from the value of the property in making the appraisement, the purchaser bidding only two-thirds of the appraised value after deducting such lien, and the holder of such junior lien not being a party to the suit, such purchaser cannot be heard, in a subsequent suit to foreclose such lien, to say that it was junior to that under which he bought. Nye & Schneider Co. v. Fahrenholz, 49 Neb. 276 (68 N. W. Rep. 498; 59 Am. St. Rep. 540).

A decree

Sec. 425. Confirmation and conveyance. of sale ordering that the purchaser be put in possession before the confirmation of the sale is erroneous. Adler v. Meyer, 73 Miss. 863 (19 So. Rep. 893). It is the duty of the court to confirm a judicial sale regularly made in compliance with all the provisions of the statute, no objection being made thereto, and it cannot arbitrarily refuse such confirmation and set the sale aside. Roberts v. Robinson, 49 Neb. 717 (68 N. W. Rep. 1035; 59 Am. St. Rep. 567). The title of a purchaser at a judicial sale void for the want of confirmation cannot be aided by lapse of time, acquiescence or ratification, as against the true owner in possession. Greer v. Anderson, 62 Ark. 213 (35 S. W. Rep. 215). Neb. Code of Civ. Proc., § 498; Sess. Lews 1875, p. 38, construed-jurisdiction of district judges to