he claims the right to purchase. Page v. Hobbs, 27 Cal. 483; Quinn v. Kenyon, 38 Cal. 499; Schiefferly v. Tapia (Cal.) 8 Pac. 878; Stewart v. Altstock, 22 Or. 182, 29 Pac. 553. Counsel for appellant, however, stoutly contends that a full compliance with the laws regulating the purchase of tide lands was conceded by the board, and that, having entered an order upon its minutes accepting the application of plaintiff, and by a like order offered to sell the lands to him at the price fixed, and to convey the same by a quitclaim deed, "without prejudice to the rights of any person," it is estopped from demanding the performance of the conditions precedent; and further, that by these acts it had exercised its discretion, and, the execution of the deed being a duty in its nature merely ministerial, it ought now to be required by the court to execute the same. But this contention is not tenable, because the sale was incomplete until the deed was made and delivered; and hence, if the board saw fit to recede from its acts on account of the plaintiff not having complied with some of the statutory requirements, it is believed there exists no reason why it should not exercise such power, and withhold the deed until such requirements were observed. The board suspended the execution of the deeds until the applicant should show that the lands were actually tide lands, and that no previous deed therefor had been issued by the state. Such an act was undoubtedly within its discretion, for, if the lands were not tide lands, or the state had formerly executed deeds to the same lands, it was the duty of the board to withhold the deeds required by plaintiff. The inquiry is judicial in its nature, and one which the board had a perfect right to make. Nor did it waive the right to make such inquiry, or a further investigation, by the acceptance of plaintiff's offer, and the entry of an order in its minutes directing the execution of a deed. These acts of the board being discretionary, its directions and decisions will not be reviewed by the courts. Corpe . Brooks, 8 Or. 222. These considerations sustain the conclusions of the court below, and the judgment is therefore affirmed.

(27 Or. 104)

ASTORIA EXCH. CO. v. SHIVELY.1 (Supreme Court of Oregon. March 4, 1895.) NAVIGABLE WATERS-DONATION CLAIM-CONSTITUTIONAL LAW.

A donation land claim bounded by the Columbia river includes no title or right in the land below high-water mark; and the statutes of Oregon providing for the sale of such lands to private parties, and giving the riparian proprietors the first right to purchase (Laws 1872, p. 129; Laws 1874, p. 76), are a constitutional and legal exercise by the state of Oregon of its dominion over the lands under navigable waters. Shively v. Bowlby, 14 Sup. Ct. 548, followed.

Appeal from circuit court, Clatsop county; E. J. Taylor, Judge.

For opinion on rehearing, see 40 Pac. 92.

Action by the Astoria Exchange Company against Charles W. Shively to determine riparian rights. Judgment for plaintiff. Defendant appeals. Affirmed.

Sidney Dell, for appellant.

PER CURIAM. The facts of this case are similar in all their controlling features to the case of Bowlby v. Shively, decided by this court June 18, 1892 (22 Or. 410, 30 Pac. 154), and affirmed on writ of error by the supreme court of the United States (see Shively v. Bowlby, 14 Sup. Ct. 548). After a most careful consideration of the case at bar, we are satisfied that all the points and principles of law arising therein were involved and ably and exhaustively considered in the case of Bowlby v. Shively, supra, and fully and comprehensively settled. We must therefore regard the decision of the latter case as decisive of this. The complaint herein was filed upon the same date as that of Bowlby v. Shively, and the issues, so far as they were concluded, were formulated about the same time. The Bowlby Case was first brought on for hearing as a test case upon the assumption that the same conclusion must necessarily be reached in both cases, but now it is claimed that this case contains other points for our consideration not passed upon in that. With this contention we are unable to concur. It could accomplish no good purpose for us at this time to reconsider the doctrine of that case, as the reasoning and conclusions reached are in full accord with the present views of the court. Hence the judgment of the court below is affirmed.

On trial of two persons for larceny of a horse, it appeared that defendants had possession of the horse a couple of days after he was stolen. There was evidence of conflicting statements by one of the defendants as to how he obtained the horse. Held, that it was error to charge that, if defendants had made conflicting statements as to the possession of the animal, such fact might be considered as tending to show that their possession was unlawful. Appeal from circuit court, Wasco county; W. L. Bradshaw, Judge.

Daniel Maloney and Charles Snelling were convicted of larceny, and they appeal. Reversed.

E. B. Dufur, for appellants. Geo. E Chamberlain, Atty. Gen., for the State.

BEAN, C. J. The defendants were tried and convicted upon an indictment against them for the larceny of a horse, the property of one Michael Doyle, and from the judgment thereon bring this appeal. The evidence tended to show that the horse was stolen from the pasture of the owner, a few miles from The Dalles, sometime between

Friday evening and Monday morning, and was found in the possession of the defendants on the following Wednesday evening. At the trial evidence on the part of the state was given, showing that the defendant Maloney stated, in explanation of his possession of the property, that he bought it and another horse from an Indian on Monday morning, between 10 and 11 o'clock, giving in exchange therefor three ponies and ten dollars in money,-eight dollars of his own, and two dollars borrowed from his codefendant. An affidavit made by Maloney on his preliminary examination was also submitted in evidence, in which it is stated that he purchased the horse from an Indian, giving three ponies and eight dollars in money therefor. From this last statement the word "ten," as originally written, had been crossed out, and the word "eight" interlined, but the evidence was conflicting as to whether the change was made before or after the affidavit was filed. The state also called one Dufur as a witness, who testified that Maloney told him that he made the trade for the horse about noon, or a little after, on Monday, but the witness was not very certain as to the exact time.

There was no evidence whatever that the defendant Snelling had made any statements, conflicting or otherwise, as to how he came into possession of the property, nor did the evidence show any statements by Maloney other than as detailed above. Upon this state of the testimony the court instructed the jury, at the request of the prosecution, that: "If you find from the evidence that the defendants have made conflicting statements as to how they came into possession of the animal in question, this fact may be considered by you as tending to show that their possession was unlawful." This instruction, it seems to us, was erroneous. The manifest effect of it, under the evidence, was that, though the defendant Maloney had made no contradictory statements as to the party from whom he received the property, or as to how he came into possession thereof, yet if at one time he said he paid therefor ten dollars, in addition to three ponies, and at another time only eight dollars, and at one time said he made the trade between 10 and 11 o'clock in the morning, and, at another time, about noon, such statements would tend, as a matter of law, to show, not only that his possession was unlawful, but likewise the possession of his codefendant, who had made no statements whatever concerning the matter. False and contradictory statements by a defendant in explanation of his possession of stolen property are competent evidence against him, but the effect and value thereof, and what they tend to prove, is for the jury, not the court. The competency of such evidence is one thing, and what it shows or tends to show is another, and quite a different, thing. The former is a question for the court, and

the latter exclusively for the jury. In this case any contradiction or discrepancy in the various statements made by Maloney as to how he acquired possession of the property was competent evidence to be weighed by the jury, along with all the other evidence in the case, in determining his guilt or innocence, but it was error in the court to instruct them that it tended to show guilt or unlawful possession. The inference, if any, to be drawn from such evidence, and the weight to be given to it, was for the jury; and the court could not, by way of instruction, tell them that any particular inference was warranted from such testimony. False or contradictory statements do not, as a matter of law, tend to show guilt, but the inference or presumption to be drawn therefrom is one of fact, for the jury. Where the law fixes the weight or effect of evidence, the court may declare it to the jury; but where the guilt of the defendant is sought to be proven, not directly by the facts shown, but by inferences therefrom, the court cannot select out a particular item of evidence, and instruct the jury that it tends to prove or disprove the main fact, without invading the province of the jury, whose duty it is to give such facts or circumstances the weight they are entitled to, in the light of all the evidence in the case. The instruction as given was, we think, error, and for this reason the case must be reversed, and a new trial ordered.

There are numerous other assignments of error in the record, but the only one relied on for a reversal is the definition of a "reasonable doubt," which is perhaps subject to some verbal criticism. Whether, however, it contains reversible error, is unnecessary to consider, in view of a new trial, and what was said about the better practice in such cases in State v. Morey, 25 Or. 255, 257, 35 Pac. 655, and 36 Pac. 573. Judgment reversed, and new trial ordered.

PLEADINGS-AMENDMENT-INJUNCTION.

1. The only issue in a case being the width of a tract subject to a right of way, it is not an abuse of discretion to refuse an amendment as to the name of the person from whom it was obtained.

2. One is not entitled to have his pleadings amended to conform to the proof, where objection was made to the introduction of the evidence for which the amendment is desired.

3. Injunction will lie to prevent the widening of a ditch for a water course through plaintiff's land, and the erection of a dam which would destroy plaintiff's ford, defendant having no legal right to do either.

Appeal from circuit court, Linn county; George H. Burnett, Judge.

Suit by Ella H. Mendenhall against the

Harrisburgh Water-Power Company. Decree for plaintiff. Defendant appeals. Affirmed. This is a suit to enjoin the defendant from taking possession of land belonging to the plaintiff and cutting timber and enlarging a ditch thereon, without first having it condemned for that purpose. The facts show: That one Jaso). S. Clark, in 1852 and the year following, buit a dam in a branch of the Willamette "ver, and dug a ditch therefrom across the pads now owned by the plaintiff, and concreted water therein to operate his mill, and on October 12, 1857, conveyed said promises to one John A. Kendall by a deed containing the following reservation: "The said Clark reserves the right of one rod in width, where his mill race is now dug, running through said tract of land, forever, in his own title, with all the appurtenances." That the legal title to said premises so conveyed to Kendall has, by mesne conveyances, become vested in the plaintiff, and the easement so reserved in one W. S. Ladd, under whom the defendant obtained possession. That the defendant commenced the construc tion of a new dam across said branch of the river, of about 250 feet below the site of the old one, placing the north end of it upon the plaintiff's land, and the south end upon that of her husband, which, if completed, will destroy a ford used by the plaintiff and her husband in crossing to and from their respective lands. That, the ditch having become shallow and much widened, the defendant set stakes along its banks, intending to widen it to 30 feet, and throw the dirt therefrom upon the adjacent land, and had entered thereon, and cut down and burned some small timber and brush which grew along the banks of the ditch. The plaintiff alleges that the defendant is a corporation organized with the object, among others, of digging a canal from a branch of the Willamette river, and conducting water therefrom for the use of the citizens of Harrisburgh, in Linn county; that it had a right of way across her land, and the right to the use of a ditch thereon of the width of from 12 to 15 feet, and no more; that the defendant, without having obtained her license or consent, and without paying for the land, or having it condemned, entered upon her premises, commenced building a dam partly thereon, cut valuable timber therefrom, and intended to, and would, unless restrained, widen the ditch to 30 feet,-and prays for a decree perpetually enjoining it from erecting or maintaining said dam, or otherwise trespassing upon her land. The defendant, after denying the material allegations of the complaint, except the existence of the ditch, for a separate defense, alleges that one W. M. Ladd was the owner of a right of way and ditch thereon from 15 to 20 feet in width, which he leased to defendant, and licensed it to enter upon and construct a canal for the purposes indicated in its charter, and that its acts, of which the plaintiff complains, consisted in deepening the canal

within the limits of the right of way. A reply having put in issue the allegations of new matter contained in the answer, the cause was referred to J. C. Powell, Esq., who took and reported the evidence, with his findings of fact and law thereon. After the defendant's evidence had been taken, it asked leave, by its counsel, to file an amended answer, based upon the affidavit of one of its attorneys, which showed that he supposed, and so alleged, that W. M. Ladd was the owner of the ditch and right of way, and did not know that W. S. Ladd was the owner until the contract entered into between him and the defendant was offered in evidence; that it also appeared from said affidavit that the defendant and those under whom it claims title had for many years exercised the right of going upon plaintiff's premises to repair the ditch, and that he believed it was material and necessary to a proper defense that the answer should be amended so as to make the allegations conform to the evidence. The defendant tendered with said affidavit an amended answer alleging that W. S. Ladd became the owner of certain mill property, to which said ditch and right of way were appurtenant, but that the deed therefor had been executed to one W. M. Ladd, who took the title thereto in trust for W. S. Ladd, from whom it secured the right to enter upon said premises and appurtenances thereto to repair the dam and ditch; that the ditch was from 15 to 30 feet in width, and the excavation complained of was confined to deepening it within the limits of the right of way; that Ladd and his grantors had been in the open, notorious, and adverse possession of said right of way for more than 40 years, and a prescriptive right had thereby been acquired to enter upon plaintiff's premises to repair the ditch; that the defendant has, with plaintiff's knowledge, expended large sums of money in constructing the canal over most of plaintiff's land, and in building the dam, without any objection upon her part until the commencement of this suit; that defendant is solvent, and able and willing to pay plaintiff any damage which she may sustain by reason of the matters alleged in her complaint. The motion for leave to file the amended answer having been denied, the referee found for the plaintiff upon all the issues, except that the right of way was 161⁄2 feet in width, the use of which could not be enjoyed without the right of defendant to enter upon plaintiff's land 15 feet outside of the right of way for the purpose of making necessary repairs, and, as conclusions of law therefrom, found that plaintiff was entitled to an injunction perpetually restraining the defendant from widening the ditch beyond 161⁄21⁄2 feet, from trespassing upon or destroying any tim ber upon plaintiff's land, or throwing any earth or other material thereon, except along said ditch, and within 15 feet of the banks thereof, on either side, and from building of maintaining the dam at any other place thar

Geo. E. Chamberlain, for appellant. D. R. N. Blackburn, for respondent.

It is

MOORE, J. (after stating the facts). contended that the court, by refusing to allow the defendant to file its amended answer, abused its discretion. The plaintiff alleged in her complaint that the defendant had a right of way across her lands, and the use of the ditch thereon, which was admitted in the answer. The only issue upon the question was as to the width of the tract subject to the right, and hence it was immaterial from whom the defendant obtain ed it. The transcript shows that objection was made to the introduction of evidence tending to show an adverse user outside of the reserved right of way, or an estoppel by the plaintiff's seeming acquiescence in the construction of the dam or excavation of the ditch. "When," says Lord, J., in Cook v. Croisan, 25 Or. 475, 36 Pac. 532, "the parties proceed with a trial, and evidence is received, without objection, supporting material matters, which are not set out in the pleadings, the court may permit the pleadings to be amended to conform with the proofs." The right to amend a pleading so as to make it conform to the proof proceeds upon the theory that it presented the issues sought to be established by the evidence introduced and admitted without objection, but that some material allegation had been inadvertently omitted therefrom. In such cases it is the duty of the court, after the evidence upon the supposed issue has been introduced without objection, to permit the amendment; but, when objection has been made to its introduction, the court has no authority to allow such an amendment, as this would have a tendency to invert the orderly mode of trial prescribed by statute, and lead to the practice of settling issues after, instead of before, trial, thereby returning to primitive methods. The plaintiff having made objection to the introduction of this evidence, there was no abuse of discretion in denying leave to the defendant to file its amended answer.

It is contended that equity will not relieve against a trespass when the injury is not irreparable, but susceptible of pecuniary compensation. "The practice," says Lord, J., in Smith v. Gardner, 12 Or. 221, 6 Pac. 771, "of granting injunctions in cases of trespass, is of comparatively modern origin, and is a jurisdiction sparingly indulged, and only upon a state of facts which show that the injury would be irreparable, and the remedy at law inadequate to redress the wrong or injury complained of. When the v.39p.no.4-26

sarily lead to oppressive litigation or a multiplicity of suits, or the injury goes to the destruction of the estate, in the character in which it is enjoyed, or the trespass cannot be adequately compensated in damages, and the remedy at law is plainly inadequate, a court of equity, in such or like cases, is authorized to interfere and grant relief by injunction." In the case at bar the evidence shows that the defendant threatened to widen the ditch beyond the limits of its right of way, and throw the material taken therefrom upon plaintiff's land; to construct and maintain a dam, the backwater from which would destroy the ford used by the plaintiff and her husband; and to cut and destroy timber growing along the banks of the ditch, outside of the right of way. The injury complained of is more than a mere trespass, and goes to the destruction of plaintiff's estate. If the defendant could widen its ditch, and encroach upon and excavate the plaintiff's land, without having it condemned, then the limits of its right would be bounded, not by its necessity, but by its desires, and financial ability to accomplish them. Ever since the feudal ages, the title to and possession of real property has been considered a valuable right, and courts of equity, since their organization, have used their power to protect this right, and, by injunction, have prevented encroachments upon such property which tend to diminish the owner's estate therein. Commenting upon a similar contention in the case of Railway Co. v. Porter, 72 Iowa, 426, 34 N. W. 286, Rothrock, J., said: "It is further claimed that injunction is not the proper remedy; that the action should have been at law, for damages. We do not think this position is well taken. There can be no doubt that equity will enjoin encroachments upon land by making excaVations, erecting permanent buildings, and the like." The threatened destruction of the ford by the erection of the new dam would be an injury to a private easement appurtenant to plaintiff's land, which equity will enjoin. Washb. Easem. 670. The injury complained of having threatened the destruction of plaintiff's estate and private easement, and the defendant not having shown any legal right to widen the ditch beyond 161⁄2 feet, or to erect the dam, exert upon the old site, it follows that the decree mast be affirmeu, and it is so ordered.

WOLVERTON, J., having been engaged in this case in the court below, took no part in the trial here.

(27 Or. 45)

MARX et al. v. LA ROCQUE et al. (Supreme Court of Oregon. March 4, 1895.) PARTITION-WHO MAY MAINTAIN.

The grantee in a deed of an undivided interest in lands, intended as a mortgage, cannot maintain partition.

Appeal from circuit court, Marion county; George H. Burnett, Judge.

Action of partition by D. Marx and A. C. Jorgensen against A. E. La Rocque, M. H. Gilbertson, and the State Insurance Company. From a judgment dismissing the action, plaintiffs appeal. Affirmed.

J. M. Gearin, for appellants. W. M. Kaiser, for respondents.

BEAN, C. J. This is a suit for partition of real property. The complaint is in the usual form, setting forth the interests of the respective parties in the land sought to be partitioned as claimed by the plaintiffs, and averring that they and the defendants are the owners and in possession thereof as tenants in common. The answer denies the allegations of the complaint, and affirmatively alleges that the defendant Gilbertson is the owner in fee, and in the open and exclusive possession, of 50 acres of the land described in the complaint, and that the defendant La Rocque is the owner in fee, and in the open, notorious, and exclusive possession, of the remainder. The reply put in issue the allegations of the answer, and, upon the issues thus joined, the cause was tried, resulting in a decree dismissing the suit, from which plaintiffs appeal.

The facts, briefly, are: That on March 20, 1883, one George C. La Rocque was the owner of an undivided one-twentieth interest in the real property sought to be partitioned, and, being indebted to one F. B. Harrington, conveyed such interest to him by deed absolute in form, but intended as a mortgage, to secure said indebtedness, as the evidence, in our opinion, abundantly shows. Afterwards La Rocque confessed judgment in favor of Harrington on the indebtedness secured by the deed, or a portion thereof; and Harrington subsequently assigned the judgment, and conveyed the land in question to the plaintiffs, by a deed absolute in form, to secure his indebtedness to them. Two or three years afterwards La Rocque paid the Harrington judgment in full to plaintiffs, and the same was satisfied of record; and on the 25th day of August, 1886, he, the said George C. La Rocque, sold and conveyed the premises in question to the defendant Alphonso La Rocque, who immediately entered into possession. Whether the judgment against La Rocque in favor of Harrington included all the indebtedness intended to be secured by the deed of March 20, 1883, is a disputed question in the case, but, as we understand the law, its consideration is immaterial at this time.

It is conceded that plaintiffs have no title in the premises sought to be partitioned, unless they acquired it under the deed from Harrington, which is admitted by all parties to have been intended as a mortgage. The principal question, then, remaining for consideration, is whether a grantee in such a

deed can maintain a sult for partition, and this, we think, must be answered in the negative. The statute (regulating the partition of real property) applicable to this case provides that when several persons hold and are in possession of real property as tenants in common, in which one or more have an estate of inheritance or for life or years, any one or more of them may maintain a suit for partition. Hill's Ann. Laws, § 423. It is necessary, therefore, that plaintiffs show both a legal estate in and possession of the premises sought to be partitioned; and it is the settled law of this state that a deed, though absolute in form, if intended by the parties as a security for a debt, is to be treated as a mortgage, as much so as if it contained a condition that the estate should revert to the grantor upon payment of the debt, and that it vests no title or right to the possession in the grantee, but simply creates a lien or incumbrance on the land. Anderson v. Baxter, 4 Or. 105; Hurford v. Harned, 6 Or. 363; Sellwood v. Gray, 11 Or. 534, 5 Pac. 196; Thompson v. Marshall, 21 Or. 171, 27 Pac. 957; Adair v. Adair, 22 Or. 115, 29 Pac. 193. In such case the court looks beyond the terms of the instrument to the real transaction, and, when that is shown, will give effect to the contract of the parties; and, whatever may be the form of the instrument, if it was executed as security for a debt it will be treated merely as a mortgage, and the title and right to possession will remain in the mortgagor until foreclosure and sale. Odell v. Montross, 68 N. Y. 499; Shattuck v. Bascom, 105 N. Y. 39, 12 N. E. 283; Barry v. Insurance Co., 110 N. Y. 1, 17 N. E. 405. From this it necessarily follows that plaintiffs have no legal estate in or right to the possession of the land sought to be partitioned, and cannot maintain a suit for that purpose. The alleged transfer of Harrington to Freeland, and of Freeland to the plaintiffs, of any interest in the premises which might have remained in Harrington after the execution of the deed by him, was wholly ineffectual to transfer title-First, because Harrington had no title which he could convey; and, second, if he had, it could not be conveyed by parol. Peugh v. Davis, 96 U. S. 332; Marshall v. Williams, 21 Or. 268, 28 Pac. 137.

It was urged that, in case the court should reach the conclusion that plaintiffs did not have such a title to the property as would enable them to maintain this suit, the court should, nevertheless, retain the cause and enforce plaintiffs' lien upon the property if it should be of the opinion that the debt to secure which the property was conveyed had not been fully paid. A sufficient answer to this position is found in the fact that the complaint contains no allegations upon which such a proceeding could be based. It is in the form used in partition suits, and alleges that plaintiffs are the owners and in possession of the property, and that is the only