from the defendant; but the effect of an order annulling this portion of the decree would be to vacate and set aside that portion of the court's adjudication, and leave the decree as if the court had omitted to make any provision for her support, and the parties would thereupon be in the position presented in Howell v. Howell, 104 Cal. 45, [43 Am. St. Rep. 70, 37 Pac. 770); whereas, the only authority given to the court by section 139 is to modify this portion of the decree "from time to time" as the court may deem just in view of any changed circumstances of the parties. The closing paragraph of the order by which the court orders that the defendant be "wholly released and exempted" from the payment of alimony “until the further order of the court” is inconsistent with the provision of the order annulling that portion of the decree which provides for the payment of alimony, but is in accordance with the provisions of section 139 and in direct harmony with the findings of the court.

7. The appellant has assigned as error many of the rulings of the court upon the admission of evidence at the hearing, but we are of the opinion that the appellant suffered no prejudice thereby, and that the conclusion of the court was in no respect affected by its rulings on such objections.

The cause is therefore remanded to the superior court, and that court is directed to modify its order by eliminating therefrom all the provisions purporting to annul any portion of the original decree of December 19, 1896, and as so modified the said order shall stand affirmed. Each party to pay its costs incurred upon this appeal.

Hall, J., and Cooper, J., concurred.

[Civ. No. 291. Second Appellato District.—July 12, 1906.]

J. W. FREEMAN, Respondent, v. ROBERT A. BROWN,

Appellant. NEW TRIAL STATEMENT—EXCUSABLE OMISSION OF SPECIFICATION—RE

FUSAL OF LEAVE TO AMEND-APPEALABLE ORDER.—An order deny. ing a motion under section 473 of the Code of Civil Procedure for leave to amend a statement on motion for new trial by inserting specifications excusably omitted therefrom is appealable, and a motion to dismiss the appeal therefrom must be denied.

APPEAL from an order of the Superior Court of Los Angeles County denying a motion for leave to amend a statement on motion for a new trial. Walter Bordwell, Judge.

Motion to dismiss appeal.

The facts are stated in the opinion of the court.

George L. Keefer, and Walter L. Bowers, for Appellant.

H. M. Barstow, and Barstow & Variel, for Respondent.

The COURT.-This is an appeal from an order denying the defendant's motion to amend his statement on motion for a new trial by inserting specifications therein. The plaintiff moves to dismiss the appeal on the ground that the order is not appealable.

Appellant by his motion and application sought relief under section 473, Code of Civil Procedure. The order deny. ing such relief is appealable. (Murphy v. Stelling, 138 Cal. 642, (72 Pac. 176] ; Kaltschmidt v. Weber, 136 Cal. 675, (69 Pac. 497].)

Motion to dismiss is denied.

SMITH, J., Concurring.–I concur in the order denying the motion to dismiss the appeal in this case, and also in the opinion that the decision in Murphy v. Stelling, 138 Cal. 642, [72 Pac. 176), is directly in point. But I regard that case as merely an application of the more general principle that

all orders made in proceedings for a new trial which have the effect of finally disposing of the motion are special orders made after final judgment, and therefore appealable. (Hayne on New Trial, sec. 146; Calderwood v. Peyser, 42 Cal. 115, and cases cited; McDonald v. McConkey, 57 Cal. 326; Clark v. Crane, 57 Cal. 633; Griess v. State Investment Co., 93 Cal. 411, [28 Pac. 1041]; Stonesifer v. Kilburn, 94 Cal. 42, [29 Pac. 332]; Sutton v. Symons, 97 Cal. 476, [32 Pac. 588]; same case, 100 Cal. 576, [35 Pac. 158]; Symons v. Bunnell, 101 Cal. 223, [35 Pac. 770]; Kaltschmidt v. Weber, 136 Cal. 675, [69 Pac. 497]; Murphy v. Stelling, 138 Cal. 641, [72 Pac. 176].) This, however, as said in the case last cited, will not apply to a mere refusal of the court to settle the statement in cases where the moving party is by law entitled to have it settled. In such a case there is no order, and, therefore, the only remedy is mandamus.

[Civ. No. 215. Third Appellate District.-July 16, 1906.]

WILLIAM BREE, Appellant, v. LEWIS WHEELER, Respondent.

WATER RIGHTS-ADVERSE POSSESSION-INTERRUPTION OF USER-SETTLEMENT. In an action to determine water rights, where it appears that up to a certain date plaintiff was the owner of the water in dispute when a settlement was made between him and the defendant and defendant relied upon adverse possession, but it appears that plaintiff annually interrupted the defendant's use, no title by adverse possession could accrue in defendant's favor, and his rights must depend entirely upon the effect of the compromise agreement or settlement between them.

ID. REAL PROPERTY-STATUTE OF FRAUDS-GENERAL RULE ORAL EQUITABLE TRANSFER.-Water rights are classed as real property, and under the general rule any agreement relating thereto must be in writing, unless an executed oral agreement is shown transferring an equity therein by possession. ID.-AGREEMENT TO SETTLE DISPUTE-DIVISION OF WATER-EXECUTED ORAL AGREEMENT PROTECTION OF EQUITABLE TITLE.-Where, prior to the date of the settlement, each of the parties was claiming the water in dispute, and defendant was using it for irrigation, against plaintiff's protest, and it was orally agreed, to avoid litigation and in

settlement of their respective rights to the use of the water, that they should divide it, each using one-half thereof, and the oral agreement was executed by such party being placed in possession of one-half of the use of the water, each thereby acquired a perfect equity, entitling him to a deed from the other and the equitable title

of each to one-half thereof will be protected. ID.-EXECUTED ORAL DIVISION BETWEEN OWNERS OF LAND.-The doc

trine that an oral agreement fixing a disputed line between owners of land, when it is carried into execution and possession is entered into in accordance with it, is not within the statute of frauds, is based upon the right of parties to adjust their differences in respect of law by mutual agreement, which when executed is binding as to each, and is equally applicable to an executed oral agreement settling disputed water rights, immediately carried into ef

fect, and acquiesced in for a considerable period of time. LD.-SUBSEQUENT REPUDIATION BY ONE PARTY NOT ALLOWABLE.—Though

both parties by mutual agreement may change or set aside an executed oral agreement of division, neither alone can subsequently re

pudiate it or destroy its effect. ID.-POLICY OF LAW TO ENCOURAGE SETTLEMENT.--It is the fixed pol.

icy of the law to encourage the settlement of disputes and the prevention of litigation, and when such settlement has been made, acted upon and acquiesced in, parties will not be permitted to violate the

compact, unless circumstances of fraud or undue influence are shown. [D.—CONSISTENCY OF FINDINGS-SUPPORT OF JUDGMENT.- Findings in ef

foct that plaintiff had an original right to the whole of the water, which was impaired only by his voluntary act in entering into and effectuating the compromise agreement which vested in defendant the right to one-half thereof are not inconsistent, and do not entitle the plaintiff to recover the whole of the water, but entitle the defendant who pleaded and proved the executed compromise agreement to a judgment in his favor for one-half thereof.

APPEAL from a judgment of the Superior Court of Nevada County. F. T. Nilon, Judge.

The facts are stated in the opinion of the court in the present case, and upon the former appeal (129 Cal. 146).

Charles W. Kitts, and Thomas S. Ford, for Appellant.

J. M. Walling, for Respondent.

MCLAUGHLIN, J.—This is the second appeal in this case-Bree v. Wheeler, 129 Cal. 146, (61 Pac. 782). Upon the second trial, had on amended pleadings, the facts found show that up to 1885, plaintiff was the owner of all the water in dispute and that defendant did not acquire title thereto by adverse possession, or otherwise, unless an agreement, affirmatively pleaded in the amended answer and found by the court, operated to give him the right to one-half of the water.

Plaintiff, who is appellant here, contends that, upon the findings the court should have adjudged him the owner of all of said water instead of decreeing that each of the parties owned one-half thereof. The finding relating to the agreement above mentioned is in substantial accord with the averment of the amended: answer in that behalf, and in substance is as follows: In 1885, each of the parties hereto was claiming the water in question, and defendant was using it for irrigating his land, against the protest of plaintiff. They talked the matter over, and it was orally agreed, to avoid litigation and in settlement of their respective rights to the use of the water, that they should divide it, the plaintiff taking it during the night and the defendant during the daytime. This method of division continued for two seasons, whereupon, plaintiff being dissatisfied, the manner of divi. sion was changed by mutual consent, and a measuring box was put in the stream which equitably and fairly divided the water, each party taking one-half thereof both day and night. This method continued for two seasons, but in 1889 plaintiff again became dissatisfied, and wrongfully tore out the measuring box. Then a board was placed in the stream by defendant, at his own expense, at a level, with two holes of equal size, to divide the water equally, and plaintiff removed this appliance. The defendant then took all the water, leaving none for plaintiff. After the recital of the foregoing facts, the finding reads as follows:“Defendant continued to divide the water as long as plaintiff would permit him to do so. In order to divide the same it was necessary that a measuring box or other suitable appliance be maintained at the point of diversion. Unless such means of divi. sion was maintained, defendant could not divide the water. This condition of affairs continued from 1889 until the commencement of this action.”

As the plaintiff interrupted the defendant's use annually, no title by adverse possession could accrue, and hence the