ing existing between the parties interested. Larimer & Weld Irr. Co. v. Wyatt, 23 Colo. 480 (48 Pac. Rep. 528). Under Mont. Const., art. 3, § 15, the act of March 6, 1891, authorizing the condemnation of a right of way for a ditch to convey water to irrigate land or work a mine, though owned by a single individual, is constitutional. Ellinghouse v. Taylor, 19 Mont. 462 (48 Pac. Rep. 757). Wash. Laws 1873, p. 520, regulating irrigation and water rights in the county of Yakima, Washington territory, does not abrogate existing common law riparian rights. Benton v. Johncox, 17 Wash. 277 (49 Pac. Rep. 495; 61 Am. St. Rep. 912; 39 L. R. A. 107). Wyoming Laws 1890-1891, ch. 8, §§ 27-30-decision of state board of control as to amount and priority of water appropriations— appeal-notice. Daley v. Anderson, Wyo. (48 Pac. Rep. 839). Mont. Comp. Stat. 1887, div. 5, ch. 74; Civ. Code 1895, § 1888,construed and applied-posting and filing notice of location. Murray v. Tingley, 20 Mont. 260 (50 Pac. Rep.723).

Sec. 440. Actions and adjudications concerning water rights-Statutes construed. A water company may litigate its water rights for the benefit of its stockholders and consumers without joining them as parties. Montrose Canal Co. v. Loutsenhizer Ditch Co., 23 Colo. 233 (48 Pac. Rep. 532). In an action for the diversion of water, as against one showing no better right, it is sufficient proof of title for plaintiff to show that he was in the actual and peaceable enjoyment and possession of the waters at the date of defendant's diversion. Cardoza v. Calkins, 117 Cal. 106 (48 Pac. Rep. 1010). In an action by a lower appropriator to quiet his title to the waters of a stream, as against an upper appropriator and riparian owner, it is held that an answer pleading a prior appropriation, but which fails to allege that the defendant is entitled as a riparian owner to any definite quantity of water, or what proportion of the waters of the stream he could reasonably exhaust for that purpose is insufficient to raise an issue as to the extent of defendant's right as a mere riparian proprietor. San Luis Water Co v. Estrada, 117 Cal. 168 (48 Pac. Rep. 1075). For cases determining particular questions of pleading and evidence, see Arnold v. Passavant, 19 Mont. 575 (49 Pac. Rep. 400); Water-supply & Storage Co. v. Tenney, 24

Colo.344 (51 Pac. Rep. 505). Particular findings and decree in an action to determine water rights held to be so uncertain as to require modification. Nephi Irrigation Co. v. Vickers, 15 Utah 874 (49 Pac. Rep. 301). Cal. Stat. 1887, p. 35, § 14, construed and applied-power of irrigation district to maintain and defend actions. Boehmer v. Big Rock Creek Irr. Dist., 117 Cal. 19 (48 Pac. Rep. 908). Mills' Ann. Colo. Stat., § 2434, does not authorize parties whose water rights have been previously adjudicated to relocate the waters involved in such decree. Montrose Canal Co. v. Loutsenhizer Ditch Co., 23 Colo. 233 (48 Pac. Rep. 532). Mills' Ann. Colo. Stat., § 2403, construed and applied-proceedings to determine priorities of water rights-construction of decree. Water-Supply & Storage Co. v. Larimer & Weld Irr. Co., 24 Colo. 322 (51 Pac. Rep. 496). For construction of particular decree as to the right to use reservoirs, see Water-Supply & Storage Co. v. Tenney, 24 Colo. 314 (51 Pac. Rep. 505), construing and applying Mills' Ann. Colo Stat., § 2270. Mont. Comp. Stat. 1887, div. 5, ch. 74, § 1260, construed and applied -power of court to determine all rights in one decree-allowing amendments. Murray v. Tingley, 20 Mont. 260 (50 Pac. Rep. 723).

Sec. 441. Miscellaneous notes. Adverse possession of a water right does not begin unless there has been an actual use of the water. Senior v. Anderson, 115 Cal. 496 (47 Pac. Rep. 454). Where there is a conflict between the interests of navigation and agriculture in relation to a stream, the use of which for navigation would be difficult and impracticable, the right to use it for irrigation will prevail, where to deny such right would destroy large agricultural interests. United States v. Rio Grande Dam & Irr. Co., N. M. (51 Pac. Rep. 674). The owner of an irrigating ditch is liable for damages caused by seepage and leakage through its banks, and the doctrine of contributory negligence does not apply where such owner has knowledge of the defects in his ditch and could have prevented the injury. Shields v. Orr Extension Ditch Co., 23 Nev. 349 (47 Pac. Rep. 194). Citing, McCarty v. Canal Co., 2 Idaho 225 (10 Pac. Rep. 623); Richardson v. Kier, 34 Cal. 63 (91 Am. Rep. 681).

66

Sec. 442. Statutes amended and new statutes. Colorado Laws 1899, p. 235, provides for special proceedings by any person desirous of changing the point of diversion of his right to use water from any of the streams" of the state, and authorizes the exchange or loan of a water right. Idaho Laws 1899, p. 369, amends Act Mar. 6, 1897, concerning the distribution of waters where the same have been alloted by decree of court, and enlarges the powers and duties of water-masters. Idaho Laws 1899, p. 280, provides for the appropriation and distribution of water; the condemnation of lands for canals, ditches and conduits, and empowers the boards of county commissioners to establish a maximum rate for the use of water. Idaho Laws 1899, p. 405, amends Rev. Stat., §§ 935, 968, concerning the building and maintaining of bridges across irrigation canals or ditches crossing highways. Idaho Laws 1899, pp. 408-428, is a new and comprehensive statute providing for the organization and government of irrigation districts and for their acquisition of water and other property and for the distribution of water thereby for irrigation purposes. Kan. Laws 1898 p. 316, provides for the condemnation of lands for the storage of water, by any irrigation, canal or reservoir company. Mont. Laws 1899, pp. 52, 53, amend Pol. Code, part 3, tit. 8, art. 2, creating the State Arid Land Grant Commission and defining its powers and duties, by adding §§ 3533a, 3536a, 3546a. Mont. Laws 1899, p. 136, "authorizes the appointment of a commissioner for the measurement and division of water under decrees of courts in certain cases." Laws 1899, p. 51, amends act approved Mar. 23, 1891, providing for organization and government of irrigation and water storage districts, the acquistion of water and property thereby and for the distribution of water for irrigation purposes. Nev. Laws 1899, p. 64,provides for turning water stored for irrigation or other beneficial purposes into the channel of any stream and for reclaiming the same. Nev. Laws 1899, p. 81, authorizes Washoe county to purchase reservoir sites for the storage of water. Nev. Laws 1899, pp. 115-119, is an "act to define and preserve existing water rights, provide for the storage of surplus water, and regulate the mode of using and acquiring the use of water in the future." Wash. Laws 1899, pp. 164168, provides for the dissolution of irrigation districts and the

Nev.

liquidation of their indebtedness. Wash. Laws 1899, p. 261, provides proceedings for the condemnation of a right of way for irrigating ditches, canals, and flumes for agricultural and mining purposes.

JUDICIAL SALES.

EPITOME OF CASES.

Sec. 443. Who may make-Adjournment. In Nebraska the district court has power to appoint a person, other than the sheriff of the county, special master, to make a sale of real estate ordered to be sold in pursuance of its decree. As a special master is not an officer within the meaning of Neb. Comp. Stat. 1895, ch. 10, § 1, there is no statute requiring him to take and file an oath or to give a bond; but the court may and should require this of him. Omaha Loan & T. Co. v. Bertrand, 51 Neb. 508 (70 N. W. Rep. 1120). Where a sale was opened at the time and place designated in the statutory notice, it is not rendered invalid by an adjournment of it to a building about 600 feet distant, rendered necessary by the inclemency of the weather, all persons in attendance going to such building where the sale was completed. Morrissey v. Dean, 97 Wis. 302 (72 N. W. Rep. 873). Citing, Longworthy v. Featherston, 65 Ga. 165; Patterson v. Reynolds, 19 Ind. 148.

Sec.444. Sale in parcels or in solido. In Arkansas it is held that objections to a sale on account of failure to sell in forty-acre tracts, or failure to give the proper notice, or fraudulent conduct between the parties making the sale, must be made before confirmation, where the facts are known or accessible to the party in time to make the objections. Waldo v. Thweatt, 64 Ark. 126 (40 S. W. Rep. 782). Where a sheriff is commanded by an order of sale to sell disconnected tracts of land, it is his duty to offer and sell them separately, unless there be some valid reason for doing differently; but where no request is made by the debtor to have the lands offered in separate parcels, and where the order of sale directs that all

of the parcels be sold subject to a prior mortgage covering them all, a sale of the whole property en masse should be confirmed. Geuda Springs Town & Water Co. v. Lombard, 57 Kan. 625 (47 Pac. Rep. 532).

Sec. 445. Confirmation. A judicial sale is not complete or conclusive until the decree of confirmation. Thompson v. Cox, 42 W. Va. 566 (26 S. E. Rep. 189). Upon appeal, objections to the confirmation of a sale which were not presented to the court below, will not be considered. Nebraska Land Stock-Growing & Inv. Co. v. McKinley-Lanning Loan & T. Co., 51 Neb. 647 (71 N. W. Rep. 312). Confirmation of a sale made upon terms different from those prescribed in the decree, cures the irregularity. Robertson v. Smith, 94 Va. 250 (26 S. E. Rep. 579; 64 Am. St. Rep. 723). Neb. Code Civ. Proc., § 498, applied-sufficiency of order of confirmation. Nebraska Land Stock-Growing & Inv. Co. v. McKinley- Lanning Loan & T. Co., 51 Neb. 647 (71 N. W. Rep. 312).

Sec. 446. Title and rights of purchaser. Where a decree of confirmation stipulates that title is to be vested in the purchaser "upon payment of the purchase money," he does not acquire any title until he complies with this condition. Blair v. Blair, Tenn. (41 S. W. Rep. 1078). Trees growing on the land at the time of its seizure which are cut down by a trespasser pending the same, are not to be classed as "fruits " 66 " or revenues of the land, and if they are still upon the land at the time of the judicial sale thereof, not having been specially withdrawn from falling under the operation of the sale nor made the subject of a special, separate adjudication, they pass to the purchaser of the land as a part of the purchase. Frank v. Magee, 49 La. 1250 (22 Sɔ. Rep. 739). The title of the purchaser, where there is an appeal from the order of confirmation, relates back on affirmance at least as far as that order, and he may not deduct from the amount of his bid sums which he has paid on account of taxes becoming liens on the property, and interest accruing on a senior mortgage subject to which he bought, between the time of confirmation and the time of affirmance or dismissal of