acquired by another cotenant to the property, on account of his violating the fiduciary relation. Saladin v. Kraayvanger, 96 Wis. 180 (70 N. W. Rep. 1113).

STATUTORY PROVISIONS.

[In Vol. V, §§ 841-888, will be found a compilation of the statutory provisions of the several states and territories concerning the limitations of the various actions affecting real estate. Below we give such amendments, changes and additional constructions as have been made.]

Sec. 866. Arkansas. (See Vol. 5, § 843.) Sand. & H. Dig., § 4818, does not apply to an action to remove a cloud from the title to land sold for taxes. Streett v. Reynolds, 63 Ark. 1(38 S. W. Rep. 150). A tax sale is not a judicial sale within the meaning of the statute prescribing the limitation upon an action to recover lands from a purchaser at a judicial sale. Worthern v. Fletcher, 64 Ark. 662 (42 S. W. Rep. 900). Sand. & H. Ark. Dig., § 4815, construed and applied-disability of married woman. Rowland v. McGuire, 64 Ark. 412 (42 S. W. Rep. 1068). Sand. & H. Ark. Dig., §§ 5094, 5095, prescribing the same period of limitations for an action to foreclose a mortgage as would bar an action on the debt secured, and providing that payments on the debt shall not extend the time for enforcing the mortgage unless a memorandum thereof is endorsed on the record by the mortgagee, is constitutional and the statute is applicable to mortgages with power of sale, and deeds of trust, when sought to be foreclosed by trustee's sale or an action of ejectment by the trustee. Hill v. Gregory, 64 Ark. 317 (42 S. W. Rep. 408); American Mortg. Co. v. Milam, 64 Ark. 305 (42 S. W. Rep. 417. The provision of the statute in regard to making record memoranda of payments applies to payments made only after the passage of the act. Fayetteville B. & L. Assn'n v. Bowlin, 63 Ark. 573 (39 S. W. Rep. 1046).

Sec. 867. California. (See Vol. V. § 844.) An action by one having full knowledge of all the facts to establish against another an implied trust, is barred in four years from the date of the act creating the trust. Cal. Code Civ. Proc., § 343, applied. Nougues v. Newlands, 118 Cal. 102 (50 Pac. Rep. 386).

Sec. 868. Florida. (See Vol. V, § 848.) The statute of limitations against an action by a former owner to recover land sold for taxes, begins to run from the execution and delivery of the tax deed. Fla. Laws 1887, ch. 3681, § 60, construed and applied. Spaulding v. Ellsworth, 39 Fla. 76 (21 So. Rep. 812.)

Sec. 869. Indiana. (See Vol. V, § 852.) Rev. Stat. 1894, § 294. which prohibits an action for the recovery of real property sold on execution, by the execution debtor or any person claiming under him after

ten years, applies to sales irregular or absolutely void from defective descriptions or other causes. Marley v. State, 147 Ind. 145 (46 N. E. Rep. 466). Under Ind. Rev. Stat. 1894, § 2487, a proceeding by an administrator to sell lands fraudulently conveyed by his decedent, must be brought within five years after the decedent's death. Galentine v. Brubaker, 147 Ind. 458 (46 N. E. Rep. 903).

Under Code Civ.

Sec. 870. Kansas. (See Vol. V, § 854.) Proc., § 16,an action brought to recover lands sold for taxes by one claiming under a tax deed, must be brought within two years after his cause of action accrues. Coale v. Campbell, 58 Kan. 480 (49 Pac. Rep. 604).

Sec. 871. Louisania. (See Vol. V, § 856.) In a petitory action brought by the parties claiming to own individual interests in an immovable, against parties possessing and claiming to hold in indivision the whole immovable, defendants are entitled to plead the prescription of ten years, although an action by partition is only barred by thirty years. Under such a condition, arts. 1304, 1305, Rev. Civ. Code, regulating prescription and possession between coheirs and coowners do not govern. Ogden v. Leland University, 49 La. 190 (21 So. Rep. 685).

Sec. 872. Michigan. (See Vol. V, § 860.) No action for the recovery of any estate sold by a trustee under the provisions of Act No. 253, Laws 1899, “shall be maintained by any beneficiary of the trust, or other persons claiming under him, unless it is commenced within five years next after the sale. This section shall not apply to persons out of the State, nor to minors, or others under any legal disability to sue, at the time when the right of action shall first accrue; but all such persons may commence such action at any time within three years after the removal of the disability, or their return to this State." Laws 1899, No. 253, § 16

Sec. 873, Minnesota. (See Vol. V, § 861.) Minn. Laws 1889, ch. 91 (Gen. Stat. 1894, § 5134), reducing the time within which an action for the recovery of real estate may be brought from twenty to fifteen years, was constitutionally passed. Kelly v. Gallup, 67 Minn. 169 (69 N. W. Rep. 812). Under Gen. Stat. 1894, § 5136, subd. 6, an action by a creditor to set aside a conveyance as fraudulent is barred in six years from the discovery of the facts constituting the fraud; and when such an action is brought more than six years after the commission of the acts constituting the fraud, it is held incumbent on the plaintiff to allege and prove that he did not discover the fraud until within six years of the commencement of the action. Duxbury v. Boice, 70 Minn. 113 (72 N. W. Rep. 838).

Sec. 874. Mississippi.

See Vol. V, § 862.) Under Code 1892, § 2763, a mortgagee remaining in possession for ten years after condition broken, acquires a perfect title by limitation. Tuteur v. Brown, 74 Miss. 774 (21 So. Rep. 748).

Sec. 875. Missouri. (See Vol. V, § 863.) Mo. Rev. Stat. 1889, § 6770, construed and applied-limitation of action against one in lawful possession for ten years under equitable title emanating from the government. Shumate v. Snyder, 140 Mo. 77 (41 S. W. Rep. 781); Howell v. Jump, 140 Mo. 441 (41 S. W. Rep. 976).

Sec. 876. Nebraska. (See Vol. V, § 865.) "An action for the recovery of the title or possession of lands, tenements or hereditaments can only be brought within ten years after the cause of such action shall have accrued. This section shall be construed to apply also to mortgages. Provided, however, that there shall be no limitation to the time within which any county, city, town, village or other municipal corporation may begin an action for the recovery of the title or possession of any public road, street, alley or other public grounds or city or town lots." Laws 1899, p. 335. One who has been in the open, notorious, exclusive, adverse possession of real property for ten years, becomes vested with a valid title to the same. City of Florence v. White, 50 Neb. 516 (70 N. W. Rep. 50). The statute of limitations runs against a married woman the same as if she were unmarried. Murphy v. J. H. Evans City Steam Laundry Co., 52 Neb. 593 (72 N. W. Rep. 960). Under Neb.Code Civ. Proc., § 10 an action upon a covenant in a deed must be brought within five years after the cause of action accrued. Bellamy v. Chambers, 50 Neb. 146 (69 N. W. Rep. 770).

Sec. 877. New Mexico, (See Vol. V, § 869.) Comp. Laws (1897), § 2938, has been amended so that persons under disability have one year only after the removal of the disability for bringing an action to recover land. Laws 1899, p. 133.

Sec. 878. North Carolina. (See Vol. V, § 871.) A married woman is not prevented from claiming the benefit of Code, § 148, giving three years in which to commence an action for the recovery of real property after discoverture, by the fact that she was previously under guardianship, where it appears that the guardian had no title to the land and was not liable for failure to sue in reference thereto. Cross v. Craven, 120 N. C. 331 (26 S. E. Rep. 940). The disability of coverture is abolished, and "in all actions commenced after the ratification of this act by married women heretofore protected by sub-sections four of sections one hundred and forty-eight and one hundred and sixty-three of the Code in which the defense of adverse possession shall be relied upon, the time computed as constituting such adverse possession shall not include any possession had against such married woman prior to the passage of this act." Ratified Feb. 13, 1899. Laws 1899, p. 209, ch. 78.

Sec. 879. North Dakota. (See Vol. V, § 872.) Unknown minor heirs against whom a judgment quieting title has been taken, may be allowed to defend the action at any time within two years from the day of their becoming of age. Laws 1899, p. 229.

Sec. 880. Oregon. (See Vol. V, § 875.) Construing Hill's Ann. Or. Laws, § 4, which provides that no action shall be maintained for the recovery of real property or for the possession thereof, unless it appears that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises in question, within ten years before the commencement of such action, in connection with § 519, that the time within which an act is to be done shall be computed by excluding the first day and including the last, it is held that where a plaintiff's predecessor in title died April 30, 1884, an action for the recovery of the real estate commenced April 30, 1894, was not barred. Grant v. Paddock, 30 Or. 312 (47 Pac. Rep. 712).

Sec. 881. South Carolina. (See Vol. V, § 878.) Where a mortgage security bond has been satisfied of record, an action on the bond is barred in six years from the date of such satisfaction. Newell v. Neal, 50 S. C. 68 (27 S. E. Rep. 560). South Carolina Code 1870, §§ 98–109, construed and applied-tacking possessions. Garrett v. Weinberg, 48 S. C. 28 (26 S. E. Rep. 3).

Sec. 882. Texas. (See Vol. V, § 881.) Construing and applying Tex. Rev. Stat. 1895, arts. 3358, 3369, it is held that an action to cancel a deed on account of being procured by fraud of a deceased person, may be brought any time within five years from the discovery of the fraud. Groesbeeck v. Crow, 91 Tex. 74 (40 S. W. Rep. 1028).

Sec. 883. Virginia. (See Vol. V, § 884.) Under Code, § 2915, an action to recover land is barred in fifteen years and the same period will bar a suit in equity for land. Drumright v. Hite, Va. (26 S. E. Rep. 583). Code 1887, § 2938, applied-limitation of action to enforce a decree for owelty. Jameson v. Rixey, 94 Va. 342 (26 S. E. Rep. 861; 64 Am. St. Rep. 726). For a particular case as to the application of the statute of limitations to a trust deed, see Bell v. Wood, 94 Va. 677 (27 S. E. Rep. 504). Where a right of action accrues "against a person who, by departing without this state or by absconding or concealing himself or by continuing to reside without the state, or by any other direct way or means, shall obstruct the prosecution of such right, the time that such obstruction may have continued shall not be computed as any part of the time in which the said right might or ought to have been prosecuted." Va. Laws 1897-98, p. 441, amending Code 1887, § 2933.

Sec. 884. West Virginia. (See Vol. V, § 886.) A creditor cannot set aside a voluntary conveyance after five years from the making thereof, without proof of actual fraud, participated in by the parties to the transaction. Scraggs v. Hill, 43 W. Va. 162 (27 S. E. Rep. 310).

Sec. 885. Wisconsin. (See Vol. V, § 887.) Rev. Stat. 1898, § 1189a, has been so amended that an action to annul or set aside a tax deed or quiet title to the land conveyed may be brought in "three

years" instead of "nine months," and the provision as to tax deeds recorded after Dec. 1, 1895, has been stricken out. Laws 1899, p. 652, § 21. Rev. Stat., § 4221, has been amended so as to extend the period six months, as to actions for the recovery of damages for flowing lands, resulting from dams constructed, used or maintained for the purpose of facilitating the driving or handling of saw logs on the Chippewa, Menomonee or Eau Claire rivers or any tributary of either of them, where the ten years have already expired. Laws 1899, ch. 285. Sales of real estate by an executor, administrator or guardian which have been made and confirmed by the county court of the county in which the land lies for more than thirty years can not be set aside for irregularities. Wis. Laws 1899, ch. 185.

SURFACE WATER.

Sec. 886.

EPITOME OF CASES.

What constitutes surface water-Flood water of a stream. The flood water of a stream extending beyond its ordinary bounds will not be treated as surface water. Chicago, B. & 2. R. Co. v. Emmert, 53 Neb. 237 (73 N. W. Rep. 540). Citing, Crawford v. Rambo, 44 O. St. 282 (7 N. E. Rep. 431), from which case the court quotes approvingly as follows: "It is difficult to see upon what principle the flood waters of a river can be likened to surface water. When it is said that a river is out of its banks, no more is implied than that its volume then exceeds what it ordinarily is. Whether high or low, the entire volume at any one time constitutes the water of the river at such time; and the land over which its current flows must be regarded as its channel; so that when, swollen by rains and melting snows, it extends and flows over the bottoms along its course, that is its flood channel, and when, by drouth, it is reduced to its minimum, it is then in its low-water channel. Surface water is that which is diffused over the surface of the ground, derived from falling rains and melting snows, and continues to be such until it reaches some well-defined channel in which it is accustomed to and does flow with other waters, whether derived from the surface or springs; and it then becomes the running water of a stream, and ceases to be surface water.”