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.
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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
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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.