the disposition a legacy, and nugatory, because not executed as a will. Grymes v. Hone, 49 N. Y. 17, 10 Am. Rep. 313. To the same purpose are Devol v. Dye, supra; Sessions v. Moseley, supra; Wells v. Tucker, 3 Bin. 366; Pierce v. Bank, 129 Mass. 425, 37 Am. Rep. 371.

Now, the effect of the findings of fact of the trial court is that Edward Graupner, on the day previous to his death, in the presence of certain persons named, declared that he gave H. V. Helms everything he had; that Helms should care for him as long as he lived, so that he could have all that was necessary, and after his death pay all charges, pay himself liberally, and send what remained to Graupner's sister in Germany; and that Helms assented thereto, and agreed to comply with the conditions imposed. There was an immediate indorsement of the certificate of deposit of the $2,000, and delivery thereof to Helms, which, being symbolical, constituted a present transfer of that portion of the funds into the possession of Helms, who subsequently and on the same day actually possessed himself of the money by receiving it from the bank upon presentation of the certificate. The remaining $200 was actually delivered to him by Judge Neil under the express directions of the donor. So that here the donor dispossessed himself of the property absolutely, parting with all control and dominion over it, and died on the following day. It is clearly manifest from what he said and did that it was his present purpose to part with the title to the money, and bestow it upon his sister, after the payment of the specified expenses and charges, which he directed Helms to see to. The directions were without reservation, and their performance depended upon no conditions. It may be assumed that the charges referred to were to be satisfied, and the balance remaining of the fund paid to his sister after his death; but this is no objection to the gift, there being a present transfer of dominion with the intent and purpose of devesting himself of title and conferring it upon another. The sister in Germany was constituted the real beneficiary or donee, and Helms a trustee for her, to execute the trust reposed in him.

It is further urged that gifts causa mortis are not favored by law, because of the opportunity afforded for the perpetration of fraud upon the estate of deceased persons through false swearing. Even if this be true, the case at bar is made so full and plain as to leave no doubt touching the real purpose of the deceased. We are not left to inference or presumption, but are dependent upon the findings of the trial court, which are clear, and leave no room for two opinions. Such a gift is not contrary to public policy, and will be upheld when established. Ellis v. Secor, 31 Mich. 185, 18 Am. Rep. 178. It is not sought to defeat the gift on account of any existing indebtedness of deceased, but recovery is predicated solely upon plaintiff's right,

as administrator, to the possession of the funds for administrative purposes; but the same, having been disposed of in Graupner's lifetime by valid gift, are not assets of the estate, and plaintiff is therefore not entitled to them. Affirmed.

(42 Or. 147)

CARTER v. WAKEMAN.* (Supreme Court of Oregon. Oct. 27, 1902.) WATERS-APPROPRIATION-EASEMENT-OBSTRUCTION-PLEADING.

1. A complaint for obstruction of an easement need only state plaintiff's ownership thereof, describing it, without stating how it was acquired.

2. A complaint alleged that water was taken and appropriated from a creek to a point on defendant's land, through a ditch constructed by plaintiff and defendant, and from thence extended by plaintiff to her land; that for more than 20 years plaintiff has contributed to its maintenance to the point of extension, and from thence has wholly maintained it; that the creek furnishes more water than is needed for use of plaintiff and defendant, and that the ditch was of sufficient capacity to carry all the water required by both; that for more than 20 years plaintiff has continuously used all waters on her land so conveyed from the creek, and flowing through the extension; that during all said time plaintiff has continuously so appropriated and used all the water flowing in the ditch from the point of extension, flowing and conveying it from the creek through the part of the ditch constructed by plaintiff and defendant, and has so used the water and the ditch, through which it has been conveyed from the creek, continuously and adversely, under an honest claim of right; that such longcontinued and uninterrupted use of the water and ditch has become an easement, and secured to plaintiff the permanent right to use the water and all of said ditch, and to convey it from the creek to her laud, and the defendant has broken the ditch from the point where plaintiff was taking the water, and turned the water into a gulch, taking it back to the creek. Held, that the complaint not only stated insufficient facts to show any title or right of use by appropriation, an intent to appropriate to a beneficial use, followed by a diversion and application to the use in a reasonable time, not being alleged,-but does not with sufficient definiteness describe and define the easement alleged to be obstructed.

Appeal from circuit court, Jackson county; H. K. Hanna, Judge.

Action by Nancy Carter against Miles S. Wakeman. Judgment for defendant. Plaintiff appeals.

Affirmed.

This is an action at law to recover damages resulting from the alleged obstruction of an easement claimed by plaintiff. The complaint is lengthy and prolix, and we give it in substance, condensing it as much as possible without obscuring the sense. It sets forth that plaintiff is now, and has been for more than 16 years last past, in the lawful and quiet possession of a certain tract of land, containing 160 acres (particularly describing it), with the exclusive right to its use, together with all water rights, easements, and appurtenances thereto belonging

1. See Easements, vol. 17, Cent. Dig. § 141. *Rehearing denied December 8, 1902.

or in any wise appertaining; that plaintiff and Ler husband, her predecessor in interest, have for more than 20 years last past been using the premises for agricultural purposes, and have irrigated the crops produced and the berries and orchard thereon each year with water conveyed to and upon the premises through a ditch constructed across defendant's land; that said water has been taken and appropriated from Pleasant creek, a stream flowing through both the lands of the defendant and plaintiff, the ditch having been constructed to a point on defendant's land partly by him and partly by plaintiff's husband, who is now deceased,-having died in the year 1883,-and from said point extended by her said husband through and across defendant's land to and upon the premises occupied by plaintiff; that ever since the construction of said ditch plaintiff's husband and plaintiff have continuously contributed toward maintaining and keeping it in repair to the point of extension, from whence plaintiff and her predecessor solely maintained and kept it in repair; that Pleasant creek, at the head of said ditch, afforded more water each year than was required for properly irrigating defendant's land and the premises occupied by plaintiff; that the ditch was constructed with sufficient capacity to convey water in ample volume to properly irrigate all the land of the defendant susceptible of irrigation, and to furnish besides all the water that plaintiff and her predecessor in interest required; that for more than 20 years last past plaintiff and her predecessor have continuously, each year, during the entire irrigating season, conveyed to and used all the water upon their said land from the point of extension, flowing and conveying the same through that portion of said ditch constructed by plaintiff's said husband and defendant, and the water so used has been sufficient in quantity to properly irrigate each and all their crops, berries, and orchard; that plaintiff and her predecessor in interest, for more than 20 years last past, continuously, each year, during the irrigating season, so appropriated and used all the flowing water in said ditch from the point of extension, and have used the same and the said ditch, through which it has been conveyed from Pleasant creek, continuously, under an honest, bona fide claim of ownership and right to the use thereof and to said ditch, and have so claimed and used the said water and ditch openly, notoriously, and adversely to all the world, and to said defendant in particular; that for more than 16 years last past plaintiff has taken and solely used the water from said ditch and stream in the same way, and for the same purpose, and in the same amount as heretofore taken and used by her husband, under an honest, bona fide claim of right and ownership, and in her sole and separate right used said water and all of said ditch continuously, openly, notoriously, and adversely to all the world,

and the defendant in particular; that the long-continued and uninterrupted use of said water and said ditch by plaintiff and her husband has long since, and before 1901, ripened into and become an easement, appurtenant to said tract of land in possession of plaintiff, and that long-continued and uninterrupted use thereof by plaintiff since the death of her husband has long since, and before the year 1901, created and secured to plaintiff a separate, personal, and permanent right to the use of said water and all of said ditch, and to convey said water from Pleasant creek to said premises free from the interference of defendant. Following this, it is alleged that in the spring of 1901 plaintiff planted certain crops upon her premises; that on or about the day of May, 1901, defendant, without color or right, willfully and unlawfully, for the sole purpose of vexing and injuring the plaintiff and preventing her crops from maturing, broke the ditch on his land at the point from where plaintiff was taking the water, and turned all the water flowing in said ditch into a gulch, thus conducting it back into Pleasant creek and away from plaintiff's premises; that plaintiff repaired said ditch, and the defendant again turned the water back into the gulch, and forbade her making further re pairs, by reason whereof plaintiff has been damaged in certain specified sums, aggregating $725. To this complaint a general demurrer was interposed, which, after consideration, was sustained, and, judgment having been entered dismissing the action, the plaintiff appeals.

E. B. Dufur, for appellant. Wm. M. Colvig, for respondent.

WOLVERTON, J. (after stating the facts). The action is simple in its nature, the plaintiff being only required by her complaint to state her ownership of the easement by appropriate averments; describing it so it may be readily discerned of what it consists, the invasion or obstruction thereof, and the damages, specified or general, ensuing, as may be adapted to the exigencies of the case. It is altogether unnecessary, in an action of this character, to set out or to show the particular manner in which or from whom the easement was acquired. 7 Enc. Pl. & Prac. 258. Any person in possession of premises to which the easement is appurtenant may maintain the action (7 Enc. Pl. & Prae. 256), but, if the plaintiff is also the owner of an estate in or title to the premises forming the basis of his possession and right thereto, it would be safer, perhaps, to allege such ownership also. If, however, plaintiff has gathered into her complaint sufficient facts by which to establish an easement appurtenant to premises in her rightful occupancy, or of which she is the owner, and to further show a wrongful obstruction or hindrance to her use, by which she is damaged, it may be sustained, as against the test of

general demurrer, notwithstanding it may consist in setting up minutely and with much detail the manner of her acquirement of such easement. In such a case, as in the ordinary one, the pleading is construed most strongly against the pleader.

Pleasant creek flows through both the lands of the plaintiff and the defendant, the latter's being above those of the former. Now, as we read the complaint, it is alleged that the water was taken and appropriated through a ditch constructed from Pleasant creek to a point on defendant's land partly by defendant and partly by plaintiff's husband, and from thence to and upon plaintiff's lands wholly by her husband; that continuously ever since its construction, being more than 20 years, plaintiff and her husband contributed to the maintenance of said ditch down to the initial point of such extension, and from thence they have wholly maintained it; that Pleasant creek affords more water than is needed for the use of both plaintiff and defendant, and that said ditch was constructed of sufficient capacity | to carry all the water required by both; that for more than 20 years plaintiff and her predecessor have continuously, each year, during the irrigating season, used all the water upon their land so conveyed from said Pleasant creek, and flowing through said extension; that during all of said time plaintiff and her predecessor have continuously, each year throughout the irrigating season, so appropriated and used all the water flowing in said ditch from the point on defendant's land before mentioned, flowing and conveying the same from Pleasant creek through said portion of said ditch constructed by plaintiff's said husband and the defendant, and have so used said water and the ditch, through which the same has been conveyed from Pleasant creek, continuously and adversely, under an honest claim of right, etc. A like allegation is made as to plaintiff individually, showing a continuous use for more than 16 years last past, her husband having died in 1883. From these allegations it is deduced by the pleader that the long, continuous, and uninterrupted use of said water and ditch has ripened into and become an easement appurtenant to the lands occupied by plaintiff. We are not sure whether the pleader intends to rely upon an appropriation from Pleasant creek, and to base ownership of the easement upon the right, or upon a right by prescription acquired from long, continuous, and adverse user as against the defendant. The facts alleged fall short of stating any title or right of use by appropriation. True, it is averred at the outset that the water was taken and appropriated through the ditch constructed in the manner designated: and a little further on, that plaintiff has for more than 20 years continuously appropriated and used all the water from the point whence the extension was made solely by plaintiff's husband.

But these averments, with such others as may aid them, are so vague and indefinite that they cannot by any reasonable construction or legal intendment be held to show an appropriation either by defendant or plaintiff of any water from Pleasant creek. To constitute an appropriation, there must be an appropriator, with the intent to appropriate to some beneficial use. This must be followed by a diversion and application to the use within a reasonable time, but the complaint contains no sufficient statement of these essentials. The allegation that plaintiff and her husband appropriated from the point where the husband made the extension refers, by all reasonable intendment, to the surplus water after defendant's use; and, standing alone, it would be but a conclusion of law, and could not be sufficient upon which to base an original appropriation. There is conjoined with this averment, however, another that they used all the water from that point, continuously flowing the same through the ditch from its source; and, coupled with what follows, an intention to set up a prescriptive right, and not an appropriation, may be inferred. If such is the purpose, the right is so illy defined that it cannot be determined of what it consists. Is it a right produced by adverse user as against the defendant, extending to the surplus water allowed by him to pass down the ditch to the point of extension, or does it comprise a right to take water in amount equal to such surplus from Pleasant creek, and flow it through the entire length of the ditch, and apply it to plaintiff's necessities upon her premises? We are unable to determine which, from what is stated. And again, no definite quantity of water is named, to the use of which plaintiff has become entitled by her alleged prescription. This is perhaps important as descriptive of the right. Without entering further into detail touching the sufficiency of the complaint, suflice it to say that it does not with sufficient definiteness describe and define the easement which it is alleged the defendant obstructed, nor is plaintiff's ownership thereof indicated by appropriate and apt allegations. The demurrer was therefore properly sustained.

Another question arose subsequent to the entry of judgment dismissing the action. Plaintiff filed a second amended complaint under an impression that she had leave of the court so to do, and moved for judgment for want of an answer, which was denied, and the action of the court in this particular was assigned as error. An examination of such complaint shows it to be in all material respects, save one, the same as the complaint to which the demurrer was interposed and sustained; the difference being that the latter contains an allegatior that plaintiff is the owner in fee of the premises in her possession. This alone, however, did not make it a good complaint, and the judgment must be affirmed.

1. Where, on prosecution for larceny, a motion for verdict of not guilty was based merely on the insufficiency of the evidence, it could not be urged for the first time on appeal that it was error to overrule the motion because there was no evidence that the taking was without the owner's consent.

2. Where the theory of the defense on prosecution for larceny was that defendant took the animal under the belief that it belonged to his father, and that he had authority to take it, an instruction that "the intent to convert the animal to his own use, knowing it was not his, is the gist of this offense," was not prejudicially erroneous, in connection with the preceding instruction defining larceny as the felonious taking, stealing, and carrying away of the property of another, and an instruction following, exonerating defendant if the jury believed the theory of defense.

3. On prosecution for larceny of a steer, testimony as to the brand on the hide of an animal killed by defendant was harmless, in view of the fact that the hide was admitted for the inspection of the jury.

4. There was no error in refusing instruc tions covered by the general charge.

5. Where the defense for larceny of a steer was that defendant took it believing it to be the property of his father, an instruction that, while possession of property recently stolen, if unexplained, is a circumstance tending to show guilt, yet if the jury believed that defendant came honestly in possession, or that it was unconnected with any suspicious circumstances of guilt, this would remove every presumption of guilt, was as favorable as defendant was entitled to: and it was not error to refuse an instruction that, if the possession was reasonably and credibly explained, the presumption of guilt arising therefrom was overcome.

6. If the instruction given was an invasion of the province of the jury, the error was in defendant's favor, and he could not complain.

7. Where defendant, convicted of larceny, moved for new trial and in arrest of judgment, it was not reversible error to omit to ask him immediately before sentence if he had anything to say why sentence should not be pronounced.

Appeal from circuit court, Baker county; Robert Eakin, Judge.

William Sally was convicted of larceny, and appeals. Affirmed.

George J. Bentley, for appellant. D. R. N. Blackburn, Atty. Gen., and Samuel White, Dist. Atty., for the State.

BEAN, J. The defendant was tried for and convicted of the crime of larceny by stealing a steer, the property of one E. H. Powers. From the judgment which followed he appeals on the ground that the court erred in overruling his motion to direct a verdict of acquittal, in the admission of testimony, and the giving and refusing of certain instructions to the jury. From the evidence it appears that on the afternoon of October 26, 1901, the defendant butchered an animal alleged by the prosecution to have been

5. See Larceny, vol. 32, Cent. Dig. §§ 170, 171, 181, 199, 200.

a steer belonging to Mr. Powers; that he cut the hide into four or five pieces, and on the following morning put it in a water hole some 50 or 60 feet distant from his residence, where it was subsequently found by an officer of the law. The defendant admitted the killing of the animal and putting its hide in the water hole as charged, but insisted that it was a helfer, and belonged to his father, who had given him permission to kill it, and that the hide was placed in the water hole for the purpose of keeping it soft and green. Powers was called as a witness for the state, and testified, among other things, that the hide in question had his brand thereon; that he had not sold or disposed of the animal to any one, nor had he authorized the defendant or any one else to butcher it. But he did not testify directly, nor was he asked, whether he had consented to the taking of it by the defendant.

At the close of the testimony for the prosecution, the defendant moved the court to direct a verdict of not guilty, for the reason that the evidence was not sufficient to justify a conviction; and it is now insisted that this motion should have been sustained, because Powers did not testify directly that the animal was taken by the defendant without his consent. The evidence on this point is perhaps sufficient, but, whether it is or not, the objection made cannot be urged for the first time on appeal. Under the practice long established, if there was a failure of proof in this particular, it should have been specified in the motion for an order to acquit. Such is the rule laid down in State v. Tamler, 19 Or. 528, 25 Pac. 71, 9 L. R. A. 853, where it is said: "In a motion asking the court to direct an acquittal, where it is claimed that the evidence is insufficient to prove the crime charged, it ought to specify the particulars in which it is claimed the evidence is insufficient, unless there is a total failure of proof; otherwise the attention of the trial court will be directed to the evidence as a whole,-that is, whether there is any evidence upon which a verdict may be founded, and wholly omit to consider the particular matter in which the alleged insufficiency consists, and which is relied upon in this court, and perhaps subsequent research may have suggested." This same doctrine has been reaffirmed in State v. Pomeroy, 30 Or. 16, 46 Pac. 797; State v. Robinson, 32 Or. 43, 48 Pac. 357; State v. Fie ster, 32 Or. 254, 50 Pac. 561; State v. Schuman, 36 Or. 16, 58 Pac. 661, 47 L. R. A. 153, 78 Am. St. Rep. 754.

It is next insisted that the court erred in instructing the jury that "the intent to convert the animal to his own use, knowing that it was not his, is the gist of this offense." It is argued that this instruction is erroneous, because the defendant admitted the taking of the animal with the intent to convert it to his own use, knowing that it did not be long to him, but believing that it belonged

Imme

to his father, and that he had authority and permission to take it. The instruction complained of, standing alone, might be open to some criticism; but it is a part of the general charge, and must be construed in connection with other portions thereof. diately before giving this instruction, and in the same connection, the court charged the jury that larceny consists in the felonious taking, stealing, and carrying away of the property of another, and, immediately thereafter, that if they believed from the evidence that defendant killed the animal which he is charged with stealing, "honestly believing, had reason to believe, and did believe it to be the property of William A. Sally, Senior, then the defendant would not be guilty as charged, and should be acquitted," and that it was incumbent upon the state to establish to the satisfaction of the jury, beyond a reasonable doubt, "that the defendant took the same with felonious intent, and unless such facts are established to your satisfaction, beyond a reasonable doubt, you will find the defendant not guilty." Taking the particular part of the instruction complained of in connection with the other portions referred to, it is perfectly apparent what the court intended, and what the jury must have understood, and that no injury could have resulted to the defendant therefrom.

The hide which it is admitted was taken from the animal killed by the defendant was produced and offered in evidence. During the trial the court permitted witnesses, over the defendant's objection, to testify as to the brand thereon, and error is based upon this ruling. If the admission of this testimony was error at all, it was harmless, because the hide was in evidence, and the jury could and did inspect it.

The defendant requested the court to charge the jury, among other things, that if he took the animal, honestly believing that he had a right to take it, and acted wholly upon that belief, he should be acquitted, and that if he took it under a claim of right, honestly entertained, and afterward discovered his mistake, a subsequently formed intent to appropriate it to his own use would not constitute the crime charged. These instructions were substantially covered by the general charge already alluded to, and there was no error in refusing to give them.

The defendant also requested the court to charge the jury that while the possession of property recently stolen is a circumstance which they might take into consideration as tending to show guilt, yet, if that possession is reasonably and credibly explained, the presumption of guilt arising therefrom

is overcome. This was refused, but the court charged that, while the recent possession of stolen property, if unexplained, is a circumstance tending to show the guilt of the prisoner, yet, if the jury believed from the evidence that the defendant came honestly into the possession of the property, or that it is unconnected with any suspicious circumstance of guilt, this would be a satisfactory account of his possession, and would remove every presumption of guilt growing out of the same. This instruction seems, in substance, the same as that requested, and is certainly as favorable to the defendant as he could reasonably expect. The presumption arising from the possession of stolen property is one of fact, and not of law. It is a circumstance in the case from which the jury may infer guilt, but no legal presumption of guilt arises therefrom. State v. Hale, 12 Or. 352, 7 Pac. 523. The weight and value of such testimony are exclusively for the jury, and it may well be questioned whether the court, in instructing them as to what would overcome the presumption, did not invade their province. State v. Maloney, 27 Or. 53, 39 Pac. 398. But if so, it was an error favorable to the defendant, of which he cannot complain.

And finally it is asserted that the court erred in sentencing the defendant without asking him at the time whether he had anything to say why sentence should not be pronounced. At common law, it was essential in all capital offenses that it should appear of record that the defendant was asked before sentence if he had anything to say why it should not be pronounced. Whart. Cr. Pl. (8th Ed.) § 906; Ball v. U. S., 140 U. S. 118, 129, 11 Sup. Ct. 761, 35 L. Ed. 377. But it is not believed that this rule applies to minor felonies. Bressler v. People, 117 Ill. 422, 8 N. E. 62; 19 Enc. Pl. & Prac. 457. But if it does, it was substantially complied with in. this case. The defendant moved for a new trial and in arrest of judgment, both of which motions were overruled at the time, or immediately prior to the sentence. This shows that he was accorded practically all that the common-law rule was intended to secure. State v. Johnson, 67 N. C. 55. And in the words of Mr. Justice Stone in Spigner v. State, 58 Ala. 421, 424: "It would look like child's play to remand this cause, when the only effect could be to propound the question to the prisoner, receive his answer that he had nothing further to offer, and then pronounce the sentence of the law on the verdict of guilty heretofore rendered by the jury, and which is free from error." The judgment will be affirmed.