USURY.

1. USURY LAW, CONSTRUCTION OF.-It is the province of the law-making power to determine what rate of interest on money will best secure and promote the public good, and therefore it is the duty of the courts to construe and administer such a law with a view to effect its objects and to promote justice. In re Pittock, 416.

2. PROHIBITION and Penalty.-Where a statute contains both a prohibition and a penalty, a contract or transaction contrary thereto is absolutely illegal and void, unless it appears, upon a consideration of the whole act, that the legislature did not so intend. Id.

3. PROHIBITORY ACT, CONSTRUCTION OF.--Where an act to regulate the rate of interest on money contains an unqualified prohibition against taking or receiving a greater interest than therein prescribed, and in a certain contingency also provides for the forfeiture of the entire usurious debt, the reasonable inference is that the legislature intended to make all acts and contracts in contravention thereof absolutely illegal and void. Id. 4. USURIOUS INTEREST.--Section two of the interest act of Oregon (Or. Code, 755), provides that "No person shall receive any greater sum or value for the loan or use of money" than in such act prescribed: Held, that it is not necessary that this "greater sum or value" should be contracted for or received at the time of making the loan, to bring the transaction within the prohibition; but if it is received at any time for or on account of such loan or use of money, it is within such prohibition, and the whole contract or transaction becomes illegal and void. Id.

VERDICT.
See JURY.

VOID SALE.

1. PAID JUDGMENT--SALE.-A sale of lands under an execution issued upon a judgment which had been fully paid, is void. Lee v. Rogers, 549.

VOTING.

See CITIZENSHIP, 1-6; CRIMINAL LAW, 6-13.

WATER COURSES AND WATER RIGHTS.

1. PUBLIC LAND--TITLE OF GOVERNMENT TO.-The government of the United States has a perfect title to the public land and an absolute and unqualified right of disposal. Neither State nor Territorial legislation can, in any manner, modify, or affect the right which the government has to the primary disposal of the public land. Union Mill and Mining Company v. Ferris, 176.

2. RUNNING WATER-A stream of running water is part and parcel of the land through which it flows, inseparably annexed to the soil, and the use of it as an incident of the soil passes to the patentee of the land. Id. 3. PROPERTY OF GOVERNMENT IN STREAM.-The government as proprietor of land through which a stream flows has the same property and right in the stream that any other proprietor would have. Id.

4. APPROPRIATION OF WATER ON PUBLIC LAND.---The appropriation of water flowing through the public land confers no right on the appropriator, either against the government or its grantee, in the absence of congressional legislation qualifying the effect of the government patent. And this is so althongh the customs, laws and decisions of the courts of the State wherein the land lies, recognize and enforce rights acquired by prior appropriation in controversies between occupants of the public lands without title from the government. Id.

5. STATUTES OF LIMITATION-ADVERSE USE.-Statutes of limitation do not run against the United States. So long as the title to land, through which a stream of water flows, remains in the United States, there can be no use or enjoyment of the waters of the stream, which will avail the person so using, as a foundation for title by prescription against the grantee of the government. In order that such use may ripen into a prescriptive title, it must continue for the full period required by the statute of limitations, after the title to the land has passed from the United States. Id.

6. PRESUMPTIVE GRANT.-If a proprietor below on a stream has, by reason of an adverse use by a proprietor above, presumptively granted to the upper proprietor, a right to use the water of the stream in a particular manner, such grant affects only the property owned by the proprietor below at the time the presumptive grant must have had its origin, and he may afterwards purchase other lands on the stream, and will hold the latter unaffected by such presumed grant. Id.

7. STATUTORY CONSTRUCTION.-The act of congress of July 26, 1866, (14 Stat. 253), is prospective in its operation, and does not in any manner qualify or limit the effect of a patent issued before its passage. Id.

8. IDEM.-If, when the act was passed, the defendant had acquired such a right, by priority of possession, as the act contemplates, that right is confirmed in him, as against one claiming, as riparian proprietor merely through a patent subsequently issued, and when no right had vested in the patentee before the act became a law. Id.

9. ADVERSE USE OF WATER.-The use of water by a riparian proprietor does not become adverse until it amounts to an actionable invasion of another's right. Id.

10. RIGHT OF IRRIGATION.-A riparian proprietor may lawfully divert the water of a stream, for the purpose of irrigating his land, to a reasonable extent. But in no case may he do this so as to destroy or render useless, or materially affect the application of the water by other riparian proprietors. Id.

11. IRRIGATION NOT NATURAL WANT.-Water for irrigation is not a natural want in the same sense that water for quenching thirst is, which a riparian proprietor may satisfy without regard to the rights and needs of proprietors below. Id.

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12. REASONABLE USE. Every proprietor of land by or through which a stream of water naturally flows, may make a reasonable use of the water for any useful purpose. What is a reasonable use depends upon the circumstances of each case. ld.

13. IDEM.-Elements which may enter into the inquiry of reasonable use stated. Id.

14. IDEM.-It seems that a riparian proprietor is only entitled to take the water from the stream on his own land, and must return the surplus to the stream before it leaves his land. At all events, the fact that a proprietor took the water at some distance above, and returned the surplus at some distance below, his land, would have an important bearing upon the question of reasonable use. ld.

15. WATER RIGHTS-ADVERSE USE.-No presumption of a grant arises from an adverse use of water, unless the use has been peaceable, and to be peaceable it must have been with the acquiescence of the owner of the servient tenement. U. M. & M. Co. v. Dangberg, 450.

16. IDEM.-If, during the time of alleged use, the plaintiff, the owner of the servient tenement, denied the right of the defendant, the owner of the dominant tenement, to use the water for irrigation to its injury, and remonstrated against such use, this is enough to show that the use was not acquiesced in, and to prevent the presumption of a grant of the right to so use the water from arising. Id.

17. IDEM-ACTIONABLE INJURY.-There may be an invasion of the right which will justify an action, although actual damage is not shown. But a distinction must be taken between those uses of water which are the exercise of the riparian proprietors' natural right and those which are not; in the former case actual damage must be shown, but need not be in the latter. Id.

18. RIPARIAN RIGHTS OF PURCHASER BEFORE PATENT.-One who has entered and paid for land and received a certificate of purchase, has the equitable title, and is entitled to riparian rights, although he has not received his patent. Id.

19. IDEM-HOMESTEAD ACT.-One who has entered land under the homestead act, and continues to reside thereon, is entitled to use water as other riparian proprietors may. Id.

20. ACT OF JULY 26, 1866-ENTRY BEFORE PASSAGE OF.--A person who entered and paid for his land before the passage of that act, holds the land unaffected by it, since his patent when issued will relate to the date of his entry, the inception of his title. Id.

21. WATER-TEST OF REASONABLE USE.-The true test as to a reasonable use is whether the use works actual, material and substantial damage to the common right; not to an exclusive right to all the water in its natural state, but to the right which each proprietor has as limited and qualified by the precisely equal right of every other riparian proprietor. Id. 22. IDEM.---In the exercise of his common right every proprietor may con

sume so much water as is necessary for his household and domestic purposes and for watering his stock. Id.

WITNESS.

See COSTS, 2, 4.