eration of the mill. The answer denies the material averments of the complaint, and alleges that defendant's predecessors in title and interest made a prior appropriation of the water of the river, at a place above plaintiffs' dam, whereby 400 inches, miner's measurement, was diverted and has been constantly used under a claim of right for more than 10 years prior to the commencement of this suit, adversely to all persons. The reply put in issue the averments of new matter in the answer, and, the cause having been tried, findings of fact and of law were made conformable to the averments of the answer, except that defendant was entitled to only 150 inches of the water as a prior right, and, a decree having been given in accordance therewith, the plaintiffs appeal.

R. R. Johnson (Carey & Kerr, Harrison Allen, R. R. Johnson, and Frederick Steiwer, on the brief), for appellants. J. H. Raley (Raley & Raley, on the brief), for respondent.

MOORE, J. (after stating the facts as above). The testimony shows that plaintiffs' predecessor in title, J. H. Koontz, in 1883 built a dam across the Umatilla river near the southeast corner of the S. W. 4 of section 22, in township 3 N., of range 29 E., in Umatilla county, and dug a ditch part of the way and constructed a flume the remainder of the distance of about two miles northwesterly, on the east side of the river, to Echo, where, in 1885, he built a flourmill, the motive power of which was furnished by water flowing in the ditch and flume. The mill was destroyed by fire in 1889, but was rebuilt the next year. The United States reclamation service occupied for a short period the line of the mill race, but at all other times since the mill was originally built it was operated, and the land lying under the ditch has been irrigated when there was sufficient water for that purpose. From October 1st of any year, until July or August of the next year, there is an abundance of water in the river to supply all reasonable demands; but between August and October of each year that quantity diminishes, and contests ensue for the use of water.

The title to the land owned by Cuhna and his alleged right to appropriate water for irrigation from the river at places above the plaintiffs' dam were derived as follows: John Dickey was the owner of 160 acres of land lying on the west side of the stream and above the line where the dam now diverting water into the mill race was subsequently placed, and in 1879 he commenced near the southeast corner of his land to dig a ditch from a slough, following the foot of a rock bluff, northwesterly across his premises, in which undertaking he was assisted by James Taylor, who extended the ditch to and upon his lands, four 40-acre tracts of which lie west and two 40-acre pieces are situate north

was thereby diverted and used for irrigation. Dickey conveyed his premises to Taylor, who in 1887 dug a new ditch, commencing below the old ditch, but above the dam now owned by plaintiffs, and extended the conduit across his lands, using the water flowing therein for irrigation, and thereafter abandoned the old ditch. Taylor died, and his widow, having remarried, conveyed the Taylor and Dickey lands to Cuhna, who continued to use water through the new ditch for irrigating such premises.

Koontz secured, from persons who owned lands bordering on or through which the Umatilla river flows, quitclaim deeds conveying the right to divert from the natural channel of that stream, between the places of intake and the termination of the mill race, such quantity of water as might be necessary for irrigation along the line of the that he, or his heirs or assigns, might erect ditch and flume, and also to propel any mill at or near Echo. Taylor, being owner of 80 acres of riparian land situate below the line of the dam built by Koontz, granted to the latter December 21, 1883, the right to divert from such premises and appropriate water by the mill race. At that time it will be remembered that Taylor and Dickey had an old ditch that tapped a slough on the west side of the river some distance above the dam built by Koontz. Taylor's deed conveyed only the right to divert water affecting his lands lying below the intake of the mill race, and did not diminish his right to take water by the old ditch for irrigation, nor prevent him from moving his place of diversion to that of the new ditch.

It is maintained by plaintiffs' counsel that the old ditch referred to was dug by Taylor and Dickey to drain their lands, and that no water flowing in that conduit had ever been used for irrigation. The fact thus asserted to have been established is deduced from testimony which shows that levees were built by Dickey and Taylor to keep the freshets caused by melting snow from overflowing their lands. Two sons of John Dickey testified that in 1871 their father and Taylor built levees along the slough to protect the lands from overflow, but that in 1879 the old ditch was dug through such embankment.

[1] We think it satisfactorily appears that after the sudden floods subsided, and the river reached its ordinary stage, water was diverted from the slough by the old ditch and used for irrigation; the quantity being annually increased as the lands were leveled and put in cultivation, the limit of which area has been reached by Cuhna. His claim to the use of the water by the new ditch is prior to plaintiffs' appropriation, and therefore superior to their right, and the only question remaining is the quantity of water to which he is reasonably entitled.

[2] The defendant's attorney, invoking the

548, 32 Pac. 508, that the capacity of the ditch at the smallest place affords the measure of the right, insists that the quantity of water awarded by the decree was a just distribution. The principle announced in the case referred to is not now controlling, when more careful methods of irrigation have been discovered, so that water is not wasted, and a larger area of land is adequately moistened, thereby promoting a greater and better development of the country. The adaptability of arid lands to the growth of particular crops by careful irrigation furnishes the test of the quantity of water reasonably necessary for that purpose. The number of acres of such land that is susceptible to cultivation, the degree of sterility of the premises, the most profitable crops that can be raised by artificial application of moisture, and the quantity of water reasonably necessary to produce the harvest on an acre by careful husbandry, are elements to be considered in determining the measure of an appropriation.

[3] Keeping this rule in view, the testimony will be examined as to the area of the defendant's cultivable land that can be irrigated by his ditch. L. M. Canfield, a surveyor, as plaintiffs' witness, stated upon oath that he accurately measured such lands, to determine the acreage and topography of the premises, and from the notes of such survey and a plane table sheet he made a map, which was received in evidence. He was then directed as follows: "You may take up this Cuhna land section by section in your own way, and tell the court how much alfalfa land, orchard land, grain land, irrigated and nonirrigated land, you found in making your survey of the same." He replied: "The S. E. 14 of the S. E. 4 of section 21; I will say all of this land of Joseph Cuhna's is in township 3 N., range 29 E. of the Willamette meridian. In section 21 there are 10.46 acres grain. There is no alfalfa and no orchards. In the S. W. 4 of the S. W. 4 of section 22 there is .54 acres of alfalfa, no orchard, and 55.5 acres of grain; that being all the land in 22. In the N. E. 4 of the N. E. 4 of section 28, there is 2.70 acres of alfalfa, no orchard, and 9.36 acres of grain; this being all the land in section 28 that is irrigated by the Joseph Cuhna ditch and land in cultivation. In section 27, the N. W. 4 of the N. W. 4, there is 32.96 acres, and there is 2.12 acres of orchard, and .9 acres of grain, and 1.29 acres being leveled. In the S. W. 14 of the N. W. 4 of section 27 there is 2.6 acres of alfalfa, no orchard, no grain. In the N. E. 4 of the N. W. 14 of section 27 there is 1.20 acres of alfalfa, 2.20 acres of orchard, and 9.91 acres being leveled at this time. In the S. E. 4 of the N. W. of section 27 there is 15.47 acres in alfalfa, no orchard, or no grain. In the S. W. 4 of the N. E. 4 of section 27 there is 7.2 acres

of alfalfa, no orchard, or no grain; this being all the land that is under the Joseph Cuhna ditches, or that is in cultivation."

It will be observed that Canfield's testimony as taken and reported by the stenographer makes him say, respecting the irrigable land in the S. W. 4 of the S. W. 4 of section 22: "There is .54 acres of alfalfa, no orchard, and 55.5 acres of grain." As the area thus noted would make a 40-acre tract contain 56.04 acres, it is very evident the stenographer made a mistake in the decimal point. The sum of the areas of the irrigable land on the various tracts as noted is 154.23 acres. In awarding to defendant 150 inches of water, it is believed the trial court took the area thus computed as the basis of the quantity reasonably required for irrigation. By moving the decimal point one integer to the left, changes the 55.5 acres to 5.55, thereby reducing the irrigable land to 104.28 acres as the proper sum of the several tracts. This view is confirmed by an examination of the map prepared by Canfield from his measurements of the land, which shows a very small part of the 40-acre tract referred to as susceptible to irrigation.

Predicated upon the award made by the court as applicable to 154.23 acres, the actual area would be entitled to 101.41 inches, and we believe 100 inches is sufficient properly to irrigate the defendant's land.

The determination of the lower court will therefore be modified, and 100 inches of water will be given as the measure of the defendant's right; but in all other respects the decree is affirmed.

BEAN, J., took no part at the hearing, or in the consideration of this cause on appeal.

(60 Or. 609)

WILLIAM HANLEY CO. v. COMBS. (Supreme Court of Oregon. Dec. 12, 1911.) 1. SALES (§§ 103, 104*)-CONTRACTS-RESCIS

SION.

Where defendant, contracting to deliver to plaintiff 600 head of cattle of a kind and quality described, presented about 500 head of cattle, a portion of which were not up to the stand225 head, defendant could not rescind the conard of the contract, and plaintiff accepted only tract and keep the money advanced by plaintiff, without showing a disposition to substantially comply with the contract by producing the required number of cattle for inspection and passing.

[Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 269-273; Dec. Dig. §§ 103, 104.*] 2. APPEAL AND ERROR (§ 1195*)-LAW OF THE CASE.

All questions which could have been raised and adjudicated on appeal are deemed adjudicated, and on a subsequent trial a motion for judgment on the pleadings comes too late; the pleadings being in the same condition as they were on the first appeal.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4661-4665; Dec. Dig. § 1195.*]

Appeal from Circuit Court, Grant County Geo. E. Davis, Judge.

Action by the William Hanley Company against J. B. Combs. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.

See, also, 48 Or. 409, 87 Pac. 143.

M. D. Clifford (Clifford & Correll, on the brief), for appellant. A. A. Smith (Cattanach & Wood, on the brief), for respondent.

MCBRIDE, J. [1] The evidence does not show or tend to show any abandonment of the contract by Hanley, plaintiff's agent. Combs was to present to Hanley at Bear Valley 600 head of steers of the kind and quality described in the contract. He presented something over 500 head, and a portion of these confessedly not the proper age and quality, and when he and Hanley disagreed as to the number that came up to the standard of the contract defendant declared the contract rescinded, and proposed to keep all the money advanced. Before defendant could rescind the contract and keep the money advanced, he should have shown a disposition to substantially comply with the contract, and have offered to comply by producing the required number of cattle for inspection and passing. He admits that his actual damages were less than $500, and yet claims that because plaintiff's agent refused to pass more than 225 head of the 578 presented that he is entitled to rescind the contract and keep all the money advanced. There is nothing in the evidence which tends to show that Hanley intended to substantially abandon the contract. In fact, he signified a willingness to take 225 head, which he claimed came up to the contract standard, but defendant was determined that he should be governed by the judgment of himself and his hired men as to the quality of the stock. Under the circumstances, defendant could not rescind the contract without returning the money advanced.

[2] The motion for judgment on the pleadings came too late to avail plaintiff any thing. As to the matters raised by the motion, the pleadings are in the same condition now as they were on the first appeal, and if they are defective now they were defective then. All questions which could have been raised and adjudicated on that appeal are res adjudicata. 3 Cyc. 398; Smith v. Seattle, 20 Wash. 613, 56 Pac. 389; Smyth v. Neff, 123 Ill. 310, 17 N. E. 702; Dilworth v. Curts, 139 Ill. 508, 29 N. E. 861.

The general principles of law applicable to this case are so well settled in the former able opinion of Mr. Justice Bean that it is unnecessary to discuss this case further. To permit the judgment to stand would be a gross injustice, and it is therefore reversed, and a new trial ordered.

[Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. § 97; Dec. Dig. § 38.*] 2. APPEAL AND ERROR (§ 194*)-OBJECTIONS NOT MADE AT TRIAL-ANSWER.

In a suit to determine adverse claims to a mining location, plaintiff could not object for dence that any work was done subsequent to the first time on appeal, in the absence of evithe date specified and prior to defendants' location, that the answer did not charge a forfeiture for failure to do assessment work for a certain year.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1241-1246; Dec. Dig. § 194;* Pleading, Cent. Dig. §§ 1375-1394.] 3. MINES And Minerals (§ 38*)-ASSESSMENT WORK-BURDEN OF PROOF.

defendants established that no work had been done on the claim in controversy in the year 1907 prior to defendants' location which was admitted by plaintiff, the burden was shifted to plaintiff to establish that work done outside the claim was for the benefit of such location. Minerals, Cent. Dig. § 101; Dec. Dig. § 38.*] 4. MINES AND MINERALS (§ 23*)-ASSESSMENT WORK-EMPLOYMENT OF WATCHMAN.

Where, in a suit to settle adverse claims,

[Ed. Note. For other cases, see Mines and

Whether the employment of a watchman and the payment of services as such constituted annual assessment work on a mining claim dewhether the expense was sufficient to satisfy pends on the necessity of a watchman, and the required amount.

[Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. §§ 51-59; Dec. Dig. § 23.*]

5. MINES AND MINERALS (§ 23*)-ASSESSMENT WORK-SERVICES OF WATCHMAN.

Where, on the termination of a work of a corporation on a mining location, they leave the superintendent in charge as watchman, the corporation was not entitled to charge the latter's salary as superintendent and the value of the services of his wife as cook and of his son as assessment work for the ensuing year, but could at most charge the value of his services as watchman.

[Ed. Note.-For other cases, see Mines and Minerals, Dec. Dig. § 23.*]

Appeal from Circuit Court, Grant County; Geo. E. Davis, Judge.

Action by the Merchants' National Bank against David A. McKeown and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Wm H. Packwood, Jr. (John L. Rand, on the brief), for appellant. J. E. Marks (Hicks & Marks, on the brief), for respondents.