come into existence between the lands then called tidelands and the river. A further contention on the evidence is that by gradual accretion Tide Island was extended downstream in front of the lands originally conveyed by the state, as noted above, and hence cut off plaintiffs' holdings from access to the river.

3. In the first place, as regards the tide-lands, the deeds conveyed to the grantor of plaintiffs all the tideland in front of the lots mentioned. This extended the holdings under those deeds to low-water mark, wherever the same might be then or afterward. Applying this principle, Mr. Justice EAKIN, in Grant v. Oregon Navigation Co., 49 Or. 324 (90 Pac. 179, 1099), as quoted by Mr. Justice BEAN in Pacific Elevator Co. v. Portland, 65 Or. 349, 399 (133 Pac. 72, 82, 46 L. R. A. (N. S.) 363), said:

"By the legislative acts of 1872 and 1874 * * the upland owner was given the preference right to purchase the tide-land, and upon such purchase, if not already vested in another under Section 4042, B. & C. Comp., he thereby acquired also the exclusive wharfage right to deep water, and also all accretions to his tide-land and the right to fill up the shallows or flats, so long as he does not impede navigation or interfere with commerce over the same."

4. The rule is that the purchaser of tide-land takes to the low-water mark, that afterward he is entitled to follow that line to the utmost of its recession, and that he acquires title to the accretions which gradually form upon his original grant: Caulfield v. Smyth, 69 Or. 41 (138 Pac. 227). The plaintiffs are therefore entitled to the accretions joining their land in front thereof to the present low-water line on the Siuslaw River, when considered as a pure addition by imperceptible degrees to that holding.

A careful reading of the testimony impresses us with the belief that the contention of the defendant that the accretion is part of Tide Island is not well founded. The evidence goes no further than to show that in former times there was a channel between Tide Island and the tide-lands included in the conveyances from the state, through which passage rowboats could be taken in any stage of water, but that now at low water all the lands in that vicinity are uncovered, including the bed of the channel. It is practically without dispute, however, that substantially along the east line of the premises claimed by the plaintiffs a depression exists, which some witnesses say contains water at all stages, and which those most favorable to the defendant admit has water in it at quarter tide. It seems clear to us that that depression is the small remainder of the former channel between the original tide-lands and Tide Island, showing that the accretions which extend from plaintiffs' grant to the present lowwater mark are not part of Tide Island, but natural additions by imperceptible degrees to their holdings.

We conclude that as the suit involves the right of access to the navigable water, for which ejectment will not lie, a court of equity has jurisdiction, because the action of ejectment would not afford complete relief for the grievances of which the plaintiffs complain, although incidentally the title to the tide-lands is involved. We think, also, upon the merits of the case, the testimony shows that the accretions in front of and annexed to the lands of the plaintiffs cannot be attributed to an extension of Tide Island, but belong essentially to the original grant from the state to the predecessor of plaintiffs.

The decree of the Circuit Court is reversed and one here entered according to the prayer of the complaint. REVERSED. DECREE RENDERED. RENdered.

MR. CHIEF JUSTICE MOORE, MR. JUSTICE MCBRIDE and MR. JUSTICE BENSON Concur.

Motion to dismiss appeal filed July 12, conditionally allowed July 27,

1915.

On the merits argued October 19, modified October 22, 1915.

SUTTON v. SUTTON.

(150 Pac. 1025; 152 Pac. 271.)

Appeal and Error-Undertaking-Sufficiency.

1. Under Section 551, L. O. L., providing that the undertaking of the appellant shall be that appellant will pay all damages, costs and disbursements awarded against him, an undertaking, which limited the surety's liability to $100 is insufficient.

Appeal and Error-Undertakings—Amendment.

2. Under Section 550, L. O. L., as amended by Laws of 1913, page 617, so as to provide that, when a party in good faith gives due notice of an appeal, and thereafter omits through mistake to do anything, including the filing of an undertaking, the appellate court may permit an amendment, an appellant who in good faith tendered an undertaking which was insufficient should be allowed to amend and furnish the good undertaking.

Equity-Trial-Exclusion of Evidence.

3. Under Section 405, L. O. L., providing, relative to suits in equity that where evidence is offered and excluded, the party offering it shall be entitled to have it taken down in like manner as the testimony admitted, and that he shall be required to pay for taking it, unless the court on appeal holds it competent, where the court refused to hear evidence as to certain matters, but, when counsel stated that they had two witnesses who would not take over five minutes apiece, directed them to be called, and the party offering the testimony did not request permission to take any testimony over the ruling of the court, or offer to pay for the recording of such testimony, there was no error.

[As to mode of preserving for review oral evidence in equity case, see note in Ann. Cas. 1913A, 283.]

Divorce Decree Conformity to Pleadings and Proof.

4. In a suit for divorce the ownership of a photograph of a deceased child of the parties was not made an issue by the pleadings or

mentioned in the evidence, but just prior to the close of the trial the husband's attorney stated that the wife had two identical large photographs, one of which was the husband's property, and asked that the decree require her to turn one of them over to the husband. The wife's attorney admitted that the wife had possession of such photographs, and stated that he would advise her to turn one of them over to the husband, and that he did not deem it necessary to insert a provision in the decree. On the settlement of the findings and conclusions the wife's attorney stated that the wife refused to turn over either of the photographs to the husband. Held, that the court was without authority to provide in the decree that the wife should deliver one of such photographs to the husband, as, assuming that her attorney had a right to bind her by an admission, he made no admission as to the husband's ownership, and, moreover, ample notice of the wife's position was given before the formal decision and decree were entered.

Divorce Alimony-Agreements of Parties-Effect.

5. In a divorce suit the husband, pursuant to an agreement, stipulated to transfer his personal property and convey his real estate to a trustee, who was empowered to sell it according to his own judg ment, pay a mortgage thereon, satisfy certain debts of the husband, and deliver the balance, if any, to the wife. The mortgage was foreclosed, so that the trustee was practically shorn of his power, and the wife derived no benefit from the transfer to the trustee. Held, that she was not barred by the agreement from claiming alimony.

[As to power of court to modify decree for alimony based on agreements of parties, see note in Ann. Cas. 1912C, 446.] From Multnomah: CALVIN U. GANTENBEIN, Judge. This is a suit by Rosa B. Sutton against James N. Sutton for divorce, in which defendant filed a crosscomplaint. From a decree in favor of defendant, plaintiff appeals. Respondent moves to dismiss appeal. CONDITIONALLY ALLOWED.

Mr. Frederick H. Drake, for the motion.

Mr. H. E. Collier, contra.

In Banc. MR. JUSTICE MCBRIDE delivered the opinion of the court.

The plaintiff brought a suit against defendant for divorce, who answered with a cross-complaint, asking that he be decreed a divorce from plaintiff. Upon the trial there was a decree in favor of defendant, from

which plaintiff appeals. The undertaking given by plaintiff complied in form and substance with the statute, except that by a clerical error the undertaking provided that:

Appellant will pay all damages, costs, and disbursements which may be awarded against the defendant on the appeal."

1, 2. Defendant's counsel filed a motion to dismiss the appeal on account of the insufficiency of the undertaking, but subsequently consented that plaintiff might file a new undertaking, and one was filed conditioned that plaintiff would pay all damages, costs and disbursements which might be adjudged against her on the appeal, "not to exceed $100." Defendant's counsel moved to dismiss this appeal on account of the limitation as to the amount of the penalty. Plaintiff presents a cross-motion for leave to file a new undertaking, and presents an undertaking complete in every respect, except that the affidavit omits these words required by statute: "That I am not a counselor or attorney at law, clerk of any court, or any other officer of any court"-which renders it insufficient. Section 551, L. O. L., provides:

"The undertaking of the appellant shall be given to the effect that the appellant will pay all damages, costs, and disbursements which may be awarded. against him on the appeal."

The undertaking, having specifically limited the liability of the surety to $100, was therefore insufficient: State v. McKinmore, 8 Or. 207; Sanborn v. Fitzpatrick, 51 Or. 459 (91 Pac. 540). Section 550, L. O. L., as amended by Chapter 319, General Laws of 1913, provides: