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About The Sunday Oregonian. (Portland, Ore.) 1881-current | View Entire Issue (Jan. 10, 1909)
TIIE SUNDAY OREGOXIAX. PORTLAND, 'JANUARY 10, 1909. MAXINE ELLIOTT STEPS INTO FRONT RANK VITH THEATER OF HER OWN New Play, "The Chaperon," Produced, and Opening Night Is Occasion for Merriment, Jollity and Good Peeling. , .15 pi M-m a c -l n 'Hi vzir aj mjisr . - V J . - - -1 . Mr ;;v:v.;f; . - - I i v?vv pss .... . : I m ; p 'to i 1 . i . . -' 1 vl j t: i 4 i ""-v I I y f r ' v , It i fisaff G&LVJ? OfiZEA- NEW YOrtK. Jan. 4. i Social Corrp apondence.) Just bcforo the dawn of i:"9 Mailr.f Kiliott rpenoil liT now thea tf r. It has long ben Known that this well known actres has her own virws of con '"iliiinns and thines. ar.J that she should have d!lrfl to own her theater has long been no a-cret. SIIss Kiliott proved tlint she was riuite able to take commanJ of things when on Wedscflay afternoon tlie made l:er appearance at the theater and Kave ord.-rs here and there to keep the workmen up to the mark. She was detr irlned that the tliater should open on a.-hedule time, and If she had to put her jthoulder to the wheel the shoulder was ready. Tlie "Maxlr.e Elliott.- as it Is called, is partly owned by the Siiuberts. an.I Is one of the prettiest playhouses In New York. It Is fn the heart of the theater district on Thirty-ninth street, be tween Itroadway and Pixth avenue, one bhx-k st of the Jletropolltan Opera Hons, and almost opposite the Casino. That New Y'ork is able to support so many theaters need not be dUcussed at thin moment; we may leave that for thie who wander around from one popular theater to another on Saturday night or on a holiday In Ui vain attonipt to Bain admittance. The color scheme of t le Maxine Kiliott is old ivory, with sea grern reliefs. It Is beautifully decorated, and is extremely comfortable. It opened on "Wednesday nleht with sueh distinguished guests in the boxes as Mary Anlerson-le Navarro In one box. Geraldine Karrar in another and Charles ratia Clibson as another spe cfl attraction on this side of the foot lirhta. On the otlier side Misc Kiliott was en In a new rfay. entitled "The Chap eron." by Marion Kairfux. It la of the lightest and most frail texture as far as material Is concerned, but there was mer riment, Joility and good feeling In the houso on Wednesday, and this may be taken as auspicious, even though tli play left something to t desired in virility and in logic, not neceesarily because the playwright Is a woman, but because this playwright has essentially feminine quali ties which she allows to dominate her otherwise excellent ideas. The story Is of ilr. and Mr. Coombes. who are suddenly called away from their Adirondack cot tage and also from their daughter, who has a number of desirable and undesirable uitora, who at any time may put the de cisive question. A chaperon must be pro vided upon the Instant, and they accord lirly telephone to friends in the neigh borhood. The friend cannot come, but (ends a, substitute, the Countess van Tuyie. an Araerican woman trying to es cape from her Austrian husband, title and all. It evolves) that she has loved before, and her husband finds letters and photo graphs wihch aid him in recopnizins Jim Ocden when they are cast together on an Island, the husband coming upon his wifo and her id friend all supposedly quite ty accident. The husband is willing to ! aettle for a consideration, but weanwhlle the lovo story of the young girl Is work ing Itself out. The chaperon objects to their intended canoe ride, but Invites them all to dinner, where the play works Itself to the Inevitable conclusion. The cast is a follows: Marv MIsa Ads Oilman Betty Coomba Miss Oia TValdrop 3Mr. Rlrhnrd Coombs. .... Mr. J. R. Crauford Alio Coombi U! Suianne Terry Mr. Coonib Jllss All Wilson Kitty Keiilnc Mm Rene Kelly rounttM Van Tuyle il:s Maxine Elliott Footman Mr. Mahlon Hamilton ilr Hrminway Mr?. Loulsn Rial A'ithia do Moreloa. . . Mian Oerjia O'Riiniey Tom Harklna Mr. Theodore M Morria YA Miller Mr. William Harrigan Bert I'artiuglon Mr. Albert Meyer Jim Ofcden Mr. Jullnn L.,KTranire Count Van Toyle Mr. Thumbs Thome A native Mr. Oraut Mitchell There ia Intense gloom at the opera houses here as there are a large num ber of artists who have their fumllies in the afflicted part of Italy. Jjaxge bene fit performances are planned and it la certain that great amount will be netted in this manner for the sufferers. I'erson ally. however, without waiting for con certed action Honcl sent his check for tyyo. the day after the news arrived here. The same is true of Caruso, whose home la in the south of Italy. Fam mareo received news from his family that they were terribly frightened but unharmed. Mr. Hnmmerstein has set January 17 for the date of a special con cert in which many of the artists wl!l participate who have not appeared be fore in the coneerta At the Metropolitan the concert for the Italian aufferers -wlil be given Janu ary 10. when artists will aing who re serve themselves for operatic perform ances only. Jane Nor'.a. the prima donna who W3 engaged for Palermo as leading singer, was to have sailed on Thursday, but she Is awaiting adv..re from the spot, as it Is r.ot unlikely that oo lavish an open Ing - was expected can cow be made. She was to have appeared as Isolde and she war to have cr. nted a new role in an opera entitled "Venex.a.' Mme. Xo ria. who Is In private life Mrs. Centoninl. was In New York for a few months with her husband prior to fulfilling the en gagement at 1'alermo. Sr.e is also en gaged . for the Spring season at the Opera Comlque. at I'arU. and it Is un derstood that she will be one of the ar tists at the Metropolitan next season. The time Is approaching when Mme. Senibrlch wlil make her final appear ances in opora. and even now every time sho sings there is special Interest mani fested. With Bond in her support noth ing more perfect In the way of sing ing Is heard, and It Is a loss Inestimable In Its seriousness that such an artist ever must leave the stage. Mme. Sembriih had tust returned from a rehearsal at the J tropolitan, which she attended upon lur return from Phil adelphia, and she was - as fresh as thougu she had never heard of rehears als, sandwich lunches and such things when I saw her nt the Hotel Savoy, where for many years she has occu pied her suite during ber visits to thla coon try. "You ray this is not a very nice way to celebrate my :5th anniversary in Now York.'" said Mme. Senibrlch. with a smile less gay tjian usual. "Perhaps you are right. I did not think of it un til I began to realize what It would MENTAL TELEGRAPHY IS NOT YET PROVEN The Present Status Is That It Is Not a Formidable Candidate for Distinction Among Scientists. BY H. K. BARGKNT. THR marvelous and unusual have a natural fascination for mankind. The tendency to believe In the mys tical and the occult was dominant in primitive philosophy and it exists with us today to a surprising degree. To the sav age tho supernatural was a part of his daily experiences. His shadow was his spirit, his dreams were realities, and the echo of his voice was his other self; and it is the tendency of even intelligent peo ple of tho present day not only to accept but to cherish the mystical and the occult rather than the natural and the scientific. I apprehend, therefore,. that what 1 have here to say about so-calh'd mental teleg raphy, or telepathy, will not meet with the approval of a large number cf the readers of your paper. But however that may be, certain state ments recently made lu a lecture on telep athy delivered in this city are so utterly contrary to what I understand to be the facts that I find myself impelled to call the stntementa in question, even at the ri.ik of displeasing thos who dlsliko to have their ictieh called in question. The lecture was delivered on the eve ning of rvoember S'nh at the Women of Woodcraft Hall. The Epcaker stuted that telepathy had been scientifically proven by laboratory tests and was recognized as a scientific fact. It was very clearly announced that the term "telepathy" was used In tho Feiise of a form of communi cation occasionally going on between mind and mind apart from the recognized' chan nels of sensation. This undoubtedly is the proper use of the term, for it was coined by the members of the Society for Psychical Research: "Wo venture to In troduce the words telaesthesia and telep athy to cover all cases of .impression re ceived at a distance without the normal operation of the recognized eense-organs." Taken In this sense. I do not find that telepathy has been scientifically proven by laboratory tests or that it is recog nized as a scientific fact. On the con trary as Is stated by the New Interna tional Encyclopedia (1ift.1i. "the verdict of science Is still "not proven.' " (See article on telepathy.) Joseph Jastrow. professor uf psychology In tho University of Wisconsin, and who may be said to represent the opinion of the leading psychologists and physiolo gists of this country, says: "If thern really exists this extra-normal, fitful and occasional, uncertain and sporadic form of communication, and If it cau be con ceived of In psychological terms, it forms an Interesting, possibly even momentous contribution to our knowledge of mental processes. Tti the preecnt status of al leged conditions of operations of telep athy, it will hardly modify seriously the direction or scope of the development of psychology. ... It may be sufficient to observe that up to the present there exisw no decided prospect either of the demonstration of the renlity of this pro cess or of its psychological formulation: and far leas either of its Inclusion within the science of psychology or of its prac tical utilization. ... If nvw facts, ade quately established, make necrtwary a re vision of current generalities, no scien tist and m science will protewt. The pres ent flatus of telepathy is simply not a j i mean not to get Into my costume and mv wig and my make-up and to 'know that all my dear New York audience was anxious for my success as I was my elf. . "Onlv when I saw in print the news that I authorized did I realize what the renunciation would mean. I know now why artists sometimes remain too long on the stage, and this was what I wanted to avoid. They must not all be accused of staying" for monetary rea sons or on account of vanity, but no one can understand what it means to give up a cublic which one loves. "It Is like giving up one's family. You see, we idealize a public Just as much as the public idealizes u. It is near us with its affection and lis admira- j tion: it Is far from us In the small ! things and in the disagreeable events of dally life, just as from the stage they do not see the human weaknesses from which we all puffer." Mme. Senibrlch turned to her husband. Dr. Stengel, for a confirmation of her statement, hut he seemed to agree In this particular with the opinion of this public which for 12 consecutive years has lavished nothing but affection upon the diva. This confidential relation between Mme. Sembrlch end her husband brought to mind the old rumor that was current at the time Du Maurier wrote "Trilby," that the author had in mind the case of formidable candidate for this distinction." (Fact and Fable in Psychology, page 73.) J. Mark Baldwin, of Princeton Univer sity, one of the leadimr rsyc-ricdofiii-ts of the world, says that the senses give the mind its material to work upon, "and it gets no material in the first instance from any other source." (Story of the GREAT GERMAN SOPRANO V :- i t MME. JOIIA. 'A GADSKI. The coming of Mme. Gadski, January 29. will beyond ali t;estion be as imporant aa event musically as the present season will offer. In Europe, as in this country, Gadaki takes rank with the greatest of operatic sopranos, her more recent appearances particularly at the Wagner Festival in Munich having brought her unusual honors. "What praise can do Justice to Gadski?" exclaimed the Cologne Tage blatt. commenting upon her triumph as the Countess in "The Marriage of Figaro." "She is the most sensational feature of the Festival. She possesses an absolutely wonderful voice, which, in spite of its true soprano timbre, has a wide range extending to the darker colors, but devoid at all times of shrillness or edge. Her method Is splendid, her legisters even, and her tones strung with unvarying uniformity." Gadskl's tour is under the direction of Iois Steois-Wynn Coman, who have directed her concert work for several seasons. Mme. Senibrlch and Dr. Stengel. It was Mme. Scmbrich's husband who answered the question about this. "Well," ha said, "that may have been because I have always felt that Mme. Sembrlch was rather my child than my wife, and she has never let me cease to be her teacher. She came to me when she k was very young, anu ms mc mu-i talented child I have ever met. What she knows of the piar.o would astonish any one even today, and she was nearly as good a violinist. "After she finished her piano study with me and went to Vienna, it was Liszt who advised her to become a sinser. and still If was my advice that she wanted, that sho depended upon, and this lias con tinued throughout our lives." "Yew." said Mme. Semurich. "there can not be a day without study for one who professes a great art. I shall study harder than ever when I am .away from the stage. There is an enormous reper tory of songs waiting for me, and I shall find my happin-ss in the belief that I am bearing messages of musical truths, espe cially to those who study, as I shall ex tend my field for concert work through the entire musical world, and I know that I can still be of use." I was moved to ask whether Mme. Sem brlch really believed her us.-fulness on the stage Was over. She laughed and ?a!d: "No. I am not so modest, but it will be easier for mo to retire now than it would have been a few years aso, be cause the day is different. We are pass ing out from the necessity of an art such n mine. "There Is no need..; Indeed there is liardly room, for the bel canto, and the modern composers have done It. There are many great In the art of today who are able to give as much pleasure as I can give with the pure old art of sing ing. And, do npt misunderstand me. I am fight with tho times, and I admire the modern music as much as any one. I only deplore that the attempt is not made to combine the old with the new. and to keep to tho principles of pure singing instead of renouncing them for a sort of musical declamation. "It were much better if it should take the form of pure declamation to the back ground of the orchestra, as this would save the vocal art. There is no question that the old method will come back: it must come back. Tho only danger is that this condition will last so long that both teachers, and especiaflv- traditions, will be lost. "It Is not only in music that the mod ern spirit of realism and of sensation prevails, but at least in painting there always remain those wonderful old can vases to make their mute appeal in be half of art, the art that ennobles and up lifts, the art that takes you out of the turmoil and strain of earthly things, the art that raises you into a world of beauty and of prayer. But the years as they pass take with them even those who remember what tho real art of singing was, and when the world will want it. will long for it. where will it be found?" Mme. Sombrich said that the attitude of the composer of today might be un derstood from, the following Incident, which occurred in Dresden Just before the first production of J5chard Strauss' Salome," which was being rehearsed by Ernest von Sehuch. This great conduct or, in whom the Italian principles of art were strong, kept down the orchestra of 135 so that the singer might, not be drowned completely. When Strauss came for the final rehearsal he called a halt, and said. "Louder, louder: bring out all there is in the orchestra." Von Schuch remonstrated, saying: "But the singer, the singer what about the singer?" "I don't care for the singer, answered Strauss. "What's the difference?" Mme. Sembrlch said that the most serious thing which the modern singer encounters is the fact that to begin a stage career is fraught with such hardships, and that only a long period of . success could rec ompense an artist for the early struggles. Under present vocal conditions a voice cannot last more than five or six years at the outside so that liardly pays for the struggle to get a standing. . Mme. Sombrich has Just bought a su perb home in Ouchv. on Lake Geneva, about -0 minutes' r3e from Paderew skv's home, and there, with Dr. Stengel and one son. she will enjoy some of the family life which has been denied her through these years of a wonderful ca reer. She will sail February 10, and she will make "guest" farewell appearances in all the great opera-houses of Europe where she lias standing engagements. EMILIE FRANCES BAUER. i Mind, pago 10.) This, as I find It. is the verdict of science. Telepathy has not been scientifically demonstrated by laboratory testis and Is not likely to be. It is con sidered by sejence as a mere gratuitous nd unnecessary assumption. But what is the scientific explanation of the data offered in evidence of telep- SOON TO SING IN PORTLAND. j I J ;.y "' v''0t '?V;."v .''-V:,V?S,'. "'- - ': -".' -vS ;-"K'.-'-' V',"- ' V' rV -' -rS-'-V'l-. . J LEGAL ASPECTS OF WATER RIGHTS DECISION Declaration of the Oregon Supreme Court on 73 Points Relating to the Subject of Riparian and Irrigation Rights. SALEM. Or., Jan. 9.-r-( Special.) Al most the whole field of the law of ap propiation of water for Irrigation was covered by the decision of the Supreme Court In the Hough-Porter case, de cided bv the Supreme Court last Tues day. There were 73 points of law de clared, though not all of them were new. Because of the Importance-' of the1 subject of irrigation and the wide effect of this decision, the following synopsis of the points of law set forth In the decision Is given: 1 The act of Coimreas of JSHrt relative to the aporoprlatlon of ate-.- was nierelj. a recognition of rlthls existing at the tima raiher than the creation of a new one. J. The tula to an act of Conxrc-s is not roulre"rt to embrai all it" provisions, for which reaon It Is necesaary to look to the body of the act to ascertain the Intention thereof. . :i It la necessary to th-s procurement or title to lands undjr the desert land art that the inception of the title to the water lo cated for such purposes depend upon a Bona ndo prior appropriation. 4 A dedication is the devotion or ElMng of property for some proper object and in such manlier as to conclude the owner. 5 A reservation Is sometl-lns extracted frtm the whole res covered by the general terms of the grant, lessening the thins granted from what It would otherwise liava been. tl. In order to determine the extent, under the law. of a title included in a conveyance from the Government whether by grant, patent, or otherwise, wo must tiike into consideration all acts In force at the tlm afffctlnir the public domain. In order to ."certain what int.roata remain subject to transfer. , , 7. A reservation of any interest in lands by a le(tilative enactment is kj effective, as a matter of law. as if expressly stated in the grant, patent, or Instrument through which title may be assorted. S. Our form of government necessarily gives rise to rights and privileges unknown to the common law and accordli.gly not covered bv the terms in general us under it. for which, reason it Ii not important by what lorm such reserved interests in land HlF.v be desiKliatd. i. The Government cannot, by legislation, determine for anv state, after its admis sion, what Its leatslaiion ralatlve to ri parian or other water rights shall be. but mav dispose of its oublic lands and all rights incident thereto, in such manner, as It may deem best, and either at the same time, or hv separate acts, make such reser vations therefrom, by grant, dedication, or otherwise as it inny see nt. 10. The water rowing over "tlie publu: domain is a part thereof and the National Government niav grant or otherwise dispose of Its riparlaiu'tntcrest separate from tho rest of the estate. 11. Knder the desert land act no limit is fixed as to the lime a right to the acquire ment of a water right may be exercised, except that he who first diverts and applies it to a beneficial use is given the better right thereto. 1". Anv one acquiring title to any part of the public domain subsequent to the date of the act of Congress of March :l. 177. accepted It with title thereto with full knowledge of the !aiv In force at the time and subject to the full Import thereof. 111. Acta bv which reservations or dedlca tloi.s. by lenislative enactments are required to bo expressly stated in the instrument of conveyance are supplementary only and, while convenient for record aods noming to the legal etfect of such reservatb-ns theroln. 14. Like any other grantor the Federal Government can convey no f,rater title than it has. . 1.1. Hie extent and legal effect of a dedi cation, as well as the manner in which ihe recipient of the benefits to accrue therefrom shall exercise the rights bestowed must be determined from the Instrument malting sut b dedications by construing such act in conjunction with the conditions then exist ing which give rise to the dedoaton. 16. The leal effect of the ltinitcago in the Act of Congress of March o. 1S77. namely: "there shall be and remain and be held free for the appropriation and use of the public for Irrigation." etc.. constitute a reservation ai.d dedication to the puhllo of nil interests riparian or -otherwise held at the, time by the National Government so far as audi Interests affect the uses for Irrigation and other purposes, there enumerated. 17. At the tlm of the passage of the defiert lai.rt act the manner of .slng the waters of streams and other sources of waler supply for the purposes there enumer sied. was a matter of common knowledge; hence, the use by the public as there re served and dedicated, when construed in the light of the then existing condition, nec essarily had reference to the usual mode of making appropriation for the uses speci fied, makin? the methods, then in common use. by implication, a part of the act. 18. In construing legislative acts respect ing the disposal of public lunds it must be presumed that the best possible results for all concerned was Inlended by the legislative tody and where practicable such construc tion should be applied as makes such intent effective. 111. While the legal effect of the desert land act was to abrogate the modified doc trine of riparian rights as to all lands to which titlo has been acquired after the en- athy? For it mifcst be remembered that tiiero are volumes upon volumes contain ing facts and reputed facts, experiments and illustrations, 'which are advanced in proof of this hypothesis. The Society for i-syeno logical Kcsearch alone has pub lished over 30 large volumes on this and kindred subjects. The answer. In brief. Is that the phe nomenon presents "a complex conglom erate," in which imperfectly recognized modes of 5en6e-actlon, chance, collusion. similarity of mental processes, an ex pectant interest in presentiments and a belief in their significance, nervousness. Ill-health, illusions of memory, hallucina tion, suggestion, and other elements enter into the composition; while defective ob servation, falsification of memory, for getfulness of details, bias and preposition, suggestion from others. lack of training and of a proper investigative tempera ment further invalidate and confuse tho records of what is supposed to have been observed. Many of the reported farts are not facts at oil; others are too deficiently reported to ba either intelligible or sug gestive: some arc accurately observed and properly recorded and often contain a suggestion of their natural explanation; some, perhap. mut be left for the time unexplained. To rail this absence of ex planation telepathy Is to employ the phil osophy of the savage. See the chapter on "The L-ogle of Mental Telegraphy' in Professor Jastrow'ts work above cited. Surely there questions should be left to those having the necessary intellectual training and requirements and who are familiar with the marvelous complexity and almost unfathomable subtlety of men tal processes. That the layman and the pseudo-scfontist are not competent to cope with these abstruse and technical prob lems seems obvious, and for them to do so seems presumptuous: yet they have always done so and will continue to do so, to the delight and edification of the lovers of the marvelous, the mystical and the occult. rerils of a Missouri ' Courtship. Memphis (Mo.) Democrat. One of our budding young gallants called on a maiden a few nights ago and valiantly offered to brave the dark nes of the backyard to bring a bucket of water. lie reached the yard, set tho bucket down and turned a crank vigorously for several minutes. His efforts met with failure, and ho re turned to the house with the state ment that the pump "was out of fix." On inspection It was found that he had sot the bucket down by a wash tub and had been busy turning the clothes wringer. I'eter Jones. Xw York TIms. Sh-a yielded to her mother harsh com , mands f Ambitious parents are auch thorns to me) And gave, not heart, but iuy little hands To Sir John Scragssby, Bart., a K. C. B. To pratlfy a parent's seinei pride She broke her heart and that of Peter J otios. Poor liter's honest, nobta love denied, He blackened up and went through life as "Bones." I saw him at a minstrel show last nipht. The end man, asking questions of the hour; And oh! the flendishness of his delight Wiien of wlws" moihers he made visage sour. Alas! the world of fashion oft can tell Of perjured vows and honest love denied! And when the great asbestos curtain fell. For Ptr Jones. the Bones,'' I softly cried. aetment thereof, it does not g- so far as to affect the rigiits originally giving rise to the doctrine of Hperian rights, that la, .or domestic and stock requirements. I'o. All lands setihtd upon and to whiHi title has been "inquired. i--tt se quent to the art of Congress of Mareli 3, 1377. were accepted with full knowledge, and v Ith tli implied understanding that th j flrt t di vert and apply tii water f streams. '.r other sources of water supply t herein. f'" the purposes ppeelfled In the art shall have the superior right thereto to the extent in tended and actually applied. I'l. Everv riparian owner, therefor.;. r Kaidless of the date or settlement is -n-.tltied to thq quantity -f water reasonably essential to his domestic us and fr ihe watering of his stock, including stifTU'lt-nt. supply for the proper irrigation of sucU garden produce ae may be essential to the proper sustenance of his famliy. 22. tietttement upon land bordering upon or through which a stream may How, or to which a natural source of ..vater supply mav be adjacent, or upon which It may be situated Is. in Itself, notice that sufficient water for domestic uses, and requirements incident thereto are and will cci tlnue to be demanded, but to constitute an appropria tion for mining. Irrigation or power pur posts, some steps toward? a diversion there of, or other good and sufficient noticu Is necesyarv. 23. The references in tho code to riparian rights constitute a "recognition of whatever riiarian rights the landed proprietor may hare; but does not attempt to dettne nor to in any manner establish any rula respect ing, such interests. 24. The case of Sturr vs. Bock. 13.1 I 041. together with Oregon crises examined and held not in conflict with thu conclusions hero reached. 2.". decisional of an Appellute Court are j.recdent3 onlv to the extent t.f-the iolmi presented to the court and considered ana there determined by it. 20. After high water channels are arti ficially opened, and thy. together with the cuts dug connect' r.g tbeiv. with the nut m stream, after having been jsert. by ttie parties opening them nnd by their suces sors in interest and such use laequiewedt In and recognized hh branch of the main creek, bv others on the nmin stream, its tributaiies and branches, for tnt- period prescribed by the statute of limitations, they boci me nrturil channels ami owners of lands adjacent I hereto arc in law. entitled to the same consideration and to tho Mime rignts as are those on the main and unquestioned channel. 27. Where the water spreads, having no welt denned current, aa luu a marsh, t cannot be deemed a water course, and ac eordjrgly does not cine within any rule permitting a claim thereto as a riparian owner. 25. Where a channel has been closed, arti ficial v or otherwise, and atr diverted therefrom during the low water season of each vear. for ' year?, it. loses Its riparian character for that" portion of each year for which the obstuetton and deprlvixilun of th9 waters thereof occurred. 2i. Evidence examined and held thai while the relative rights of the parties for irrigation purposes -are to be awarded 1" accordance with the respective date of appropriation for Irrigation purposes, these rights are subject to the right of each of the riparian proprietors to insist upon a continuous flow of sufficient water to meet their domestic demands, together with such additional supply for the . watering of reasonable number of stock ior each, tho depletion or which stream shall not be sufficient that it may become stagnant or Injurious to the health of those or their stock using It. 80. Where the testimony before the Ap pellate Court is not amide for a determina tion nf fh ntiartitv to he left in the streim properly to supply tho domestic and other natural wants and uecessury requirements of the riparian owners along the contro verted stream, the Appellate rourt may determine other points upon wnicit tne tes timonv I adequate for the purpose and re mand the cause to the court below witn permission to take further evidence und to enter a supplemental decree determining the continuous flow necessary to the full protection of the riparian Interests of the parties to the suit. ai. The surplus waters remaining after the domestic and stock demand vt riparian owners on nil iMtids entered subsequent to March a, 1S77. are subject to appropriation and rights thereto vett In the order of time in which the water has been diverted and aDDiled to a beneficial use. ;t2 Testimony as to duty of water ex amined and held that from one-third to two-thirds of an inch per acre, est una tea on basis of 40 inches to one "second foot." ample for the irrigation of the lands in- No certain method Is essential to a valid appropriation of water. A n effective diversion may be made without ditches, by con? true tion of dams In the slough, or other channels, thereby subirrigatlng tho lands or by overflowing them, or by any process which may result In the successiui application of the water to a beneficial use. 4. The water must bo used in such man ner and such economical methods must ho adopted in its application to uses desired as will secure the greatest duty available, even though it becomes necessary to change at considerable expense the old methods which had their origin when there was but little demand and the supply correspond ingly abundant. Beneficial use by. and needs of, the appropriator. and not the quantity origi nally diverted nor tho capacity at ditches constructed for the purpose, determines the limit of his rights. ;t6. The right of an appropriator of water cannot be tacked to that of a more squatter upon nubile lands, who, while no may tiav applied the water in the Irrigation of the land sulsequently owned by uch subse quent appropriator. has abandoned it. "7. But a incro squatter upon public lands may acquire such an interest hi the right to the nossession thereof that he may even, by parol, transfer his rights therein to another, fn which event the rights of th purchaser thereof, claiming under the doc trine of prior appropriation, re!ate back to the time of the original diversion- 3fi. A mere claim of riiiht to the land held by a- squatter, if acoompanled by a diversion and application of the water In the reclamation thereof, is sufficient to enti tle him to convey to another his Interest In the water rieht. together with such interest as he may have in the land to which the wster may be appurtenant. .11). The fact that lands may have origi nally been swamp lands and reclaimed and title acquired thereto as such, does not preclude the owner from acquiring a water right for the Irrigation thereof. 40. When lands are shown to be swamp and reclaimed as juch. it will be presumed that r-t ior to its reclame f ion no Irrigation thereof was necessary, but when once re claimed, if In an arid district, it comes within the same rule arid the same hi w respecting Irrigation and riparian rights aj applies to other agricultural lands In the vicinity. 41. A party claiming as an approprlntor cannot, for the purpose of establishing a risrbt ;rior to another, avail himself of ditch constructed for drainage, unless it appears that such ditch wan at the time of and prior ro the Inception of other rights, intended for irrigation purposes as ell. 42. Where person fiie on la nil under tho desert land a t and makes the affidavit required to the effect That the lands ore desert in character and unreclaimed, he will notbe perm it ted o assert a nr. ht to water for the Irrigation a having been Initiated prior to the date of such entry. 4::. Where an npproprintor fulls to uie the full amount of water diverted, and for an unreasonable time delays Increasing his uso. any subsequent Increase in either a di version or use thereof is made subject to the intervening rights. 44. Where water has been appropriated and applied In the Irrigation of a tract of land and after, and during, a long period of use in a certain manner In a certain lo cality, other rights In the stream attach such a chance In the appropriation may not he made, either of the point of diversion or - of the place of it use where to make such change will substantially prejudice the interests of such other appropriators. 45. When for the purpose of diverting water for a beneficial use a ditch is com menced, and within a reasonable time the work thereon Is prosecuted to completion, water turned into It and applied to the use therein, the rirht to tho appropriation, to the extent of the quanity diverted and applied, relates back to the commencement of the wo: 4 4rt. When parties calm their right .i through the same diversion and from tho same ditch through which the appropriation waj originally madii by hem or by their predecessors In interest, they are tenants tn rnrnmnn, and where, in a suit with others on the stream Involving; rights thereon no issues are framed between such tenants !n common, their relative rights may h lert undetermined and only their rights as against others to the suit will be decreed. 47. when tenants In common claim a water right by reason of the construction of a canal, and subsequently the water Is permitted to flow down the channel and Is elsewhere diverted, the inception, as well as the limit, of their rights as aealnst in tervening appropriators are determined hv the capacity of the canal men'.Ioned, and not by any subsequent diversion, cither In pl-i"e r In time. 47. Parties owning the right to the use of water may sv-nnnwe tne met n on ro m-ivev lng It to the point of use if steh change does not materially prejudice others rights, and In doing so any dry ravine, gulch or hol low, as well as the natural channel of a stream, may be used by the appropriator of wster In its transmission tn the p!ae of use. 4S. Where water is conveyed through any natural channel or water course, he user or users mav, when practicable to do so with out substantial prejudice to others' rights, let the waters tho? diverted commingle and take It out at some ot her point. 49. Where a right to the use of water Is acquired through and by the construction of a ditch tnpf.ing anv source of water ftujd. and the users theieafte,- decT to take the water thus diverted from other points on the stream due allowance must be made for loss by evaporation, including such -oss us may occur under different met hods of use and distribution, which lou-4 must, so far as practicable of ascertainment, be 'cduct'-d from the quantity awarded under the orig inal diversion and method of ue. utt. A bona, tide intention to devote water to a beneficial use may comprehend the use to be made bv r througii other persons and upon lands other than those vZ -he appro priator. r.l. Hights to the use of water may be Ini tiated though a ditch heading; upon and tupping the source of water supply upon the iands of another as to whom no ease ment has been acquired but which may by the ouner of such land be revocable. .".2. Where a right to the use of waiter la asserted through a ditch which crosses th lands or another, for which no perpetual easement has been acquired, none but t he owi.er of t lie premises across which the ditch Is constructed are in a position ti com plain, and where such owner makes no issue nnd offers no proof thereon, tills feature will be disregarded. r:t. Where water is claimed as the "waste" waters from tho farm of an adjacent water ueer, all the water in excess of that cauted by ami resulting from seepage is but the quantity diverted by such near-by apnro priator In excess of his needr- and accord -Jngiy in excels of the quantity to whie'h he may be entitled, and the person receiving and applying the excess to a beneficial use acquires a vested right therein, as .ould ari at l ropriator of any other surplus water, the Inception of which right, like that of nny othf-r appropriator. dates from the Ilrst step? taken to provide for its use. I. T'nder a pica of title by adverse user, a showing uf continuous application of t he water lor a beneficial use . by an upper pro prietor for more than ten years makos a prima facie showing under such claim, to deteat which it Is incumbent upon the pci Sv.r. questioning such right by competent evi dence to overcome the showing thus mad'. .1,". Where a prima facie claim ly adverse, user Is : s;ab 11 shed by continuous u-e ami application for tho required time prior euit. t ho ouus thus thrown upon tho party contesting such claim If fully n.et by proof that within the btatutory period the siioit ago In the water supply below the adverse claimant was not sultlcient to substantially prejudice thu interests of other approprlhtr ficm the source of water supply irom wliicii the appropriation Is mud'. ."ot. Adverse possession and prior appropri ation are not Inconsistent defenses and both may be asst-rted Ln the same pleading. .7. Where t ho pleader r-.-lles on ail erse possession only and in his proof frills to sustain such defense, and the evidence ot -fei-ed is sufficient to es. ablush an npproprl ati'ii. it may be concider.-d and h.'s rights u n tier the doctrine of ;nor approunathm may be established In accordance with the showing thus made. &s. The riff'U to the use of water cannot te deemed forfeited on account of non-user Rich short of the period prescribed by the statute of limitations for real actions. 59. To constitute an abandonment of a water right there must be a cum-urreiien of the in ten lion to abandon and an actual failure lu its use. 00. Involuntary abandonment of real prop erty tunnot work a forfeiture ot any ater righ ts previously init la ted in L i'iiuectiou therewith. til. Water rights Initiated in the reclama tion of Ir.nds lost to another, who had in augurated a right to water for irrigate n. cannot change the ue t hereof to ot her lauds, but v ill be treated as having aban doi.nd such right where not to do so w,uid work to the prejudice of other approprlatori. tiJ. When one of the parties to tho suit has not offered proof as. to hia rights and it does not appear that he is claiming a right to the ue aa against others whose Interests ::re involved, t he court :n.iy, ln its discretion, dismiss without prejudice to him. .. Where the trial court properly order all claiming an Interest in matter before It to be made parties and they appear. It may. In tho exercise of its sound dlscret lou, re fuse to grant a motion for nonsuit. In which event their failure to further proceed ina result ln a decree against them, on the merits ; Init the court may, if It derm proper, grant such motion, nnd If granted their rights will not be d'termined. 64. While it is the general rule that to the Interest of the parties t- a suit In eqult y w ho do not appeal, a decree more favorable than entered in the trial court will not be entered, such general rule may not always be Invoked where their appear ance is not voluntary in the firs: instance, but made In' response to an order of the court requiring all interested In the imb.toi.t matter of the suit to be made parties. O.'i. As between the part ies who righ' are adjudicated, at all times that the water In eonrovHi-sv i-n not required by one or more, it should, when needed by others, re main uninterrupted and subject to their tit". tit; All water rights are limited in t heir application to the number of acres, and to the land for which acquired, except w hen tho increase In the acreage or change in place of ueo wl!! not work to the material prejudice of others Interests in the stream diverted. ('7. Where the statute gives to the trial court the power to require all Interested in the result of tho litigation before it to be made parties, U carries with It all the power essential to the making of sn4.i1 order 'ef fective. 6-i. Where under Section 41, r. and C Comp.. the court directs all Interested to bt made parties and pursuant thereto summon Is ser ed upon parties who, disregarding the summons, fail to appear, or plead, it i not necessary that Inquiry be made Into their interests, but a decree mav be entered against thorn in favor of a!l partie appear ing therein. '!. Water suits are sul generis concerning which ail questions "nf praeib-e are not pro vided for either by sr itute or precedent, for which reason courts of equity are nor nec essarily bound in alt cases by the rules of practice usual) v imoked, and where partie are served with summons and by order of the court required to interplead with refer ence to each otlier and any of them, di rectly or indirectly, net in disregard of the spirit of tho order, the court in the exer cise of Its sound discretion, may either en ter a decree affecting their interests or not, as It may deem Just and equitable. 70. If In violation 0 the spirit of the court's order, requiring all Interested to be ma ile parties, for the purpose of avoldlr.tr the effect of such order, neglect to frame Issues, or in framing them between them selves, make admissions In their pleading whieh to recognize and to follow mnkes a decree Impracticable of enforcement, t ho pleadings may be deemed amended to con form to the proof and thereby being within the general purview of the order of the court and al! admissions not In harnmnv. with the proof and inimical to the enforce ment of a decree may he disregarded. 71. iSince under the code suits in equity are tried do novo on appeal, the court, ex cept where limited by the statute, has the same discretionary power In reference there to as the trial court. 72. Oiving to the difficulties usually en countered In tiie enforcement of decr where there are many conflicting Interest, In water sui's, the trial court has the powr when deemed advisable to enter such sup plemental decree, pot In consist eut with the decree of the Appellate Court, as may b necessary to make the decree of the Appel late i-ottrt effective. 7:1. Where it Is clear from the evMeni e that a suit was made necessary by know ingly wrongful acts of one of the prtl. com should bo taxed against him in favor of the parties directly injured thereby : but where It appears that parties to the proceeding are benefited bv the general rt sult arising front an adjustment of alt con flicting claims on the stream, the court may. ln tho exercl-e of Its discretionary powers under the code In such matters. ad Judge that en-'h pav bis own costs. Just Curiou;. Catholic Standard and Times. Tourist What's that crowd down at tho courthouse? Native Oh. they're tryiu th eat- T Soni Johnson, sun. Tourist Sam Johnson! Why. th.it wns tho man that was lynched yesterday, wasn't (t? Nntive Tan. uh: hut to-day some ' tho hoysjs .got to feclln' rur'mis to know whethah he was Innocent or guilty, stih. Bright Boy. "itcato News. Our child. I think. Is very bright: His saiugs make me swo:i with pruie Afford mo natural delirht. He gets that on his father's side. But with it he seems somewhat vain. And vanity's a thing- I hate; Yet that is easy to explain It's quite a marked maternal trait. tie's amiable as can be And sweet, that cannot be denied. The reason it- Is plain to see He gets that on his father's tide. He can be pretty stubborn, though. Which fact I sadly contemplate, . But stubbornness he's bound to show It's unite a marked maternal trait. It's strange, but when his temper's bad. Or when he's swiped the jam o lied, My wife remarks: "I'ror lit tie lad ! lie gets that on his father's side." If any mischief he has done J That It's my fault she'll -Intimate WhuL I've transmuted to my sou. It's quite a marked maternal trait.
