[6] The defendant city next claims the right to the use of the land as a street by prescription or adverse use by the public continuously for the statutory period of limitation. To establish a highway by prescription there must be an actual adverse public use, general, uninterrupted, continued for the period of the statute of limitations under a claim of right. Where this is established for the statutory period, the right is deemed perfected and a permanent one. Wood v. Hurd, 34 N. J. Law, 87; Marion v. Skillman, 127 Ind. 130, 26 N. E. 676, 11 L. R. A. 55, 58. It was held in Smith v. Gardner, 12 Or. 226, 6 Pac. 771, 53 Am. Rep. 342, that mere user of a highway, however long continued and uninterrupted by the public, is not sufficient to give a right in the public; but such user must be accompanied by acts, such as working the road, keeping it up by the public, repairing it or removing obstructions, etc.,

showing the use to have been made under a claim of right, and not merely by permission of the landowner. A permissive use of a way by certain portions of the community constitutes a license and not a dedication, and is ordinarily something that may be revoked. And it was held in Bayard v. Standard Oil Co., 38 Or. 438, 445, 63 Pac. 614, that user by the general public, under a claim of right, adversely, and not by mere permission of the owner, for the period prescribed by the statute as a limitation beyond which actions for the recovery of real property cannot be maintained, will establish an easement in the public.

The adverse use which will give title by prescription to an easement is substantially the same in quality and characteristics as the adverse possession which will give title to real estate. As in the case of adverse possession, it must be continued for a long period; it must be adverse, under a claim of right, exclusive, continuous, uninterrupted, and with the knowledge and acquiescence of the owner of the estate out of which the easement is claimed. 22 Am. & Eng. Ency. Law (2d Ed.) 1192; Coburn v. San Mateo County (C. C.) 75 Fed. 520; Shellhouse v. State, 110 Ind. 509, 11 N. E. 484; City of Topeka v. Cowee, 48 Kan. 345, 29 Pac. 560, 563. Where the use is merely permissive, and not adverse, there is no basis on which a right of way by prescription may rest. Elliott (2d Ed.) § 175; Engle v. Hunt, 50 Neb. 358, 69

[7] The use made of the property in question by those traveling over it does not appear from the evidence to have been at any time either adverse to the owner or under a claim of right. It does not appear that an action could have been maintained at any time by Stewart or his successors in interest for any act of the city, or of any one else, relating to the land. But, rather, the use appears as a neighborly concession. Any one was allowed to travel over the tract for convenience, as is often the case with a vacant lot, as it did no harm, and the use was apparently permissive in its very nature, and would not set the statute running. Altschul v. O'Neill, 35 Or. 202, 211, 58 Pac. 95; Trump v. McDonnell, 120 Ala. 200, 24 South.

353.

[8] The receipt by the city of taxes paid by the owner is inconsistent with the claim of the city to have held the same land, on which the taxes were paid, by prescription during the same years it received taxes thereon. Elliott (2d Ed.) § 167; Illinois Cent. R. Co. v. City of Bloomington, 167 Ill. 9, 47 N. E. 318; Niles v. City of Los Angeles, 125

Cal. 572, 58 Pac. 190; Hesse v. Strode, 10

Idaho, 250, 77 Pac. 634.

Stewart or subsequent owners to have done All that would have been necessary for would have been to inclose the land. This to have changed the condition as to travel would not have conflicted with any authority exercised or claimed by the municipal authorities. The city has not made out a case coming within the well-defined rules governing a prescriptive easement as announced and adhered to by this court. This disposes of the second contention of defendant.

[9] As to the conveyance by Stewart and wife to the Standard Oil Company of a tract of land west of the railroad together with a right of way over the land in dispute to be used in connection therewith, when the Standard Oil Company conveyed the lot west of the railroad, together with its appurtenances, to Stuchell on July 12, 1909, which deed was duly recorded, this right of way, being appurtenant to the tract described in the conveyance, passed to the grantee without specific mention. George v. Cox, 114 Mass. 382, 387; Spaulding v. Abbot, 55 N. H. 423; Brown v. Thissell, 60 Mass. (6 Cush.) 254, 258. Therefore the deed executed by the Standard Oil Company to the city of Baker on April 24, 1912, describing the right of way over the land in controversy, conveyed no right thereto, as that company then had nothing to convey, and the city obtained no benefit by virtue of such deed.

The decree of the lower court was right, and it is affirmed.

(65 Or. 263)

In re HART'S WILL. PRATHER et al. v. FERGUSON et al. (Supreme Court of Oregon. May 27, 1913.) 1. WILLS (§ 50*) - "TESTAMENTARY CAPACITY."

For other definitions, see Words and Phrases, vol. 8, pp. 6929-6931.]

2. WILLS (8 163*)-PROBATE-UNDUE INFLU

will of December 24th, claiming that it revoked the will of July 7th; that said will had never been republished and was therefore revoked; and that its execution was procured by fraud and misrepresentation. It was alleged that, upon the making of the will of December 31st, the will of December 24th was destroyed. It does not appear from the transcript nor from the abstract whether it was sought to re-probate the will of December 31st or to have admitted to probate the will of December 24th as a lost or destroyed will; nor is it deemed material to the con

Proceedings by Effie Ferguson and others for the probate of the will of Mrs. Hart, deceased, in which James M. Prather and others appeared as contestants. From a judgment admitting the will to probate, contestants appeal. Affirmed.

the county court decreed the will of July 7th to be the last will and testament of deceased, and decreed the wills of December 24th and 31st to be void for want of mental The capacity on her part to make a will. contestant Prather and others appeal.

A. A. Smith, John L. Rand, and Wm. H. Packwood, Jr., all of Baker, for appellants. J. W. McCulloch and A. N. Soliss, both of Ontario (McCulloch, Soliss & Duncan, of Ontario, on the brief), for respondents.

MCBRIDE, C. J. (after stating the facts as above). [1] There is little dispute as to the law governing cases of this character, and the dispute narrows down to a single question of fact, namely, was the testatrix at the time the wills were executed in December, 1910, in a condition to understand what she was doing, to recall what property she owned, and to intelligently select the objects of her bounty? Buren's Will, 47 Or. 307, 83 Pac. 530; Pickett's Will, 49 Or. 127, 89 Pac. 377. The determination of this question has necessitated a careful scrutiny of the voluminous testimony offered at the trial. We have carefully read and weighed the testimony of all the witnesses and are clearly of the opinion that it shows the deceased was not on December 24th or 31st in such a mental condition as to be able to select the objects of her bounty nor to know what she was doing, but that by reason of disease her mind was in such a condition that these wills were the offspring of insanity and did not proceed from a sound and disposing mind.

This is an appeal from a decree of the circuit court for Malheur county sustaining the validity of a will executed by deceased on July 7, 1910, and declaring invalid a will alleged to have been executed by her on December 24, 1910. The contest arises out of the following state of facts: On July 7, 1910, deceased, then being in poor health and suffering from diabetes, but being, so far as the testimony discloses, of sound mind, employed one J. D. Fairman to prepare her will, which he did, and it was duly signed, published, and witnessed. It is not questioned that it was at the time a valid will, but is conceded that, unless revoked by one or the other of two alleged wills made subsequently on December 24 and December 31, 1910, it is the last will and testament of deceased and entitled to probate as such. Mrs. Hart died March 3, 1911, and on the 9th day of March, 1911, the contestant, a brother of deceased, presented to the county court of Malheur county a writing purporting to be her last will and testament, and it was admitted to probate as such. Subsequently a petition verified by George R. Hart, one of the legatees, under the will of July 7, 1910, was filed, praying that the probate of the will of December 31st be set aside on account of undue influence and want of testamentary capacity on the part of the testatrix, and praying that the will of July 7th be admitted to probate. Upon issue joined the court found that the will of December 31st was void by reason of testamentary incapacity on the part of the testatrix at the time of its execution, set aside

[2] On the other hand, the will of July 7th was made under circumstances indicating a sound mind and memory, and its disposition of the property was substantially in accordance with a long-contemplated and often-expressed design to share the property equally with her own and her husband's rel

J. N. Hart, of Portland (J. Le Roy Smith, of Portland, on the brief), for appellants. E. B. Dufur, of Portland, for respondent.

BEAN, J. (after stating the facts as above). [1] The rights claimed by the plaintiff and the defendant company are inceptive in their nature. Both claim as appropriators. It is only necessary to determine such rights as between the parties. No actual appropriation of the water has been made by either party. The extent of the right, if any, that may eventually be obtained cannot be measured or adjusted by this decision.

Plaintiff gave notice of its appropriation, and conformed to the requirements of section 6528, L. O. L., and also section 6555, Id., which are alike in their essentials. The different statutes providing for the appropriation of the water of the lakes and streams of the state of Oregon declare the use thereof, for irrigation and domestic consumption, for the development of the mineral resources of the state, and for furnishing electrical power (sections 6525, 6551, L. O. L.), to be a public and beneficial use and public necessity, and the right to divert the surplus waters of such lakes and streams for such beneficial purposes is thereby granted. In the case of Grande Ronde Elec. Co. v. Drake, 46 Or. 243, 78 Pac. 1031, it was held that where plaintiff had complied with the provisions of the statute as to posting notices, etc., it had such a right as would enable it to exercise the right of eminent domain, and obtain a right of way for its ditch or canal.

[2] The various statutes providing for the manner of appropriating the surplus waters of this state are not intended as a means for the infringement of any right to such waters, obtained before such enactments.

Section 6594, L. O. L., being a part of the act under which the defendant company asserts its right, provides that, subject to existing rights, all waters within the state may be appropriated for beneficial use, as herein provided; but nothing herein contained shall be so construed as to take away the vested right of any person, firm, corporation, or association to any water.

Subdivision 3, § 6595 (Act of 1909), by which vested rights are preserved, is as follows: "And where any riparian proprietor, or under authority of any riparian proprietor or his or its predecessor in interest, any person or corporation shall, at the time this act is filed in the office of the Secretary of State, be engaged in good faith in the construction of works for the application of water to a beneficial use, the right to take and use such

Subdivison 5 of the same section is to the tion, or corporation to take and use water effect that the right of any person, associashall not be impaired or affected by any of the provisions of this act, where appropriations have been initiated prior to the filing of this act, and such appropriators, their heirs, successors or assigns, shall, in good faith, and in compliance with laws existing at the time this act takes effect, commence the construction of works for the application of the water so appropriated to a beneficial use, and thereafter prosecute such work diligently and continuously to completion.

[3] The main question to be determined in this case is: Had the plaintiff's right lapsed or been abandoned? "Abandonment," as applied to water appropriation, is an intentional relinquishment of a known right. Such intention must be ascertained from both the conduct and declaration of the appropriation in regard thereto. Dodge v. Marden, 7 Or. 456; Oviatt v. Big Four Mining Co., 39 Or. 118, 65 Pac. 811; Sloan v. Glancy, 19 Mont. 70, 47 Pac. 334; 1 Weil (3d Ed.) 567, 576.

[4] An appropriator must prosecute the construction work with reasonable diligence. 1 Weil (3d Ed.) § 382. What constitutes reasonable diligence must be determined from the facts of each case. Diligence requires such constancy and steadiness of purpose or of labor as is usual with men engaged in like enterprises. Weil (3d Ed.) § 383; Ophir Company v. Carpenter, 4 Nev. 534, 97 Am. Dec. 550; Oviatt v. Big Four Co., supra.

In Wishon v. Globe, etc., Co., 158 Cal. 137, 110 Pac. 290, it was held that delay caused by the forest service of three years is not lack of diligence, being protected by the Civil Code.

[5] As to abandonment, section 6571, L. O. L., enacts that the right to appropriate water hereby granted may be lost by abandonment, and if any person, company, or corporation constructing a ditch, canal, flume, or pipe line, under the provisions of this act, shall fail or neglect to use the same for a period of two years at any time, it shall be taken to have abandoned its appropriation, and the water shall revert to the public, and shall be subject to other appropriations in order of priority; but the question of abandonment shall be one of fact, to be tried and determined as other questions of fact. Such right may be extinguished by any act showing an intent to surrender or abandon the right, after which, if the person having the right ceases its use, for the statutory period for abandonment his interest is lost. Hough v. Porter, 51 Or. 318, 95 Pac. 732, 98 Pac. 1083, 102 Pac. 728.