The court say:

insured, by sale, transfer, or conveyance, without the consent of the insurer, the policy shall become void, is not invalidated by the making of a mortgage. The words "title or "possession," as here used, mean an actual change in law and equity, and the word "interest" means a change in the insurable interest of the owner of the property, neither of which is affected by the execution of a mortgage. Sun Fire Office v. Clark, 53 O. St. 414 (42 N. E. Rep. 248). "It seems well settled in this state and elsewhere that the making of a mortgage does not violate a provision in a policy of insurance that any change in the title, interest, or possession of the assured in the property, without the assent of the insurer, shall avoid the policy. The mortgage being simply a security for the debt, is extinguished by its payment, without any reconveyance. The mortgage of itself does not make the mortgagee a freeholder, and a judgment recovered against him does not become a lien on the land, nor is it liable to the dower rights of his wife. It has none of the incidents of a legal or equitable title."

Sec. 394. Change in title-Deed to secure debts. Georgia Code, § 1969, provides in substance, that a deed to secure debts shall operate as an absolute conveyance with a right reserved only in the vendor to have the property reconveyed to him upon payment of the debt secured. Under this statute it is held that a deed to secure debts is an alienation of the property, operates to pass the title to the property conveyed, and is not a mere incumbrance thereon. Hence where a policy of insurance covering a building on the premises is issued, containing a condition that the policy should be void "if the property should be sold, or the title or possession of the property, or any part thereof, transferred or changed, whether by legal process, judicial decree, conveyance, or otherwise;" and where, pending such insurance, the holder of the policy thus conveys the property insured-the policy is thereby rendered void, and in case of loss the assured cannot maintain thereon an action against the insurer. Phoenix Ins. Co. v. Asberry, 95 Ga. 792 (22 S. E. Rep. 717).

Sec. 395. Insurance for benefit of another-Mortgages. A third person to whom a policy is made payable "as

his interests may appear" need not then have an insurable interest in the property; but in order for such person to maintain an action on the policy he must be entitled to the entire insurance. Donaldson v. Sun Mut. Ins. Co., 95 Tenn. 280 (32 S. W. Rep. 251). Where an insurance policy issued to the owner is made payable to the assignee of the mortgagee (naming the assignee), "as interest may appear" in case the assignee assigns his interest after the loss, the owner and such third party may maintain an action on the policy. Ermentrout v. Amer. F. Ins. Co., 60 Minn. 418 (62 N. W. Rep. 543). Where property is insured for the benefit of the mortgagee, as its interest may appear and the mortgage has been duly foreclosed prior to the time of such insurance and the premium paid by the mortgagee, but the time for redemption not having expired until a period subsequent to the insurance, it is held that non-redemption from the mortgage sale by the owner of the premises did not work an alienation of the property, so as to defeat the policy, but that an action might be maintained in case of loss without notice to the insurance company of such non-redemption, and a notation thereof made on the policy, notwithstanding the policy provided that the mortgagee should notify the company of any change of ownership in the property insured, and that it be so noted on the policy. Washburn Mill Co. v. Fire Ass'n, 60 Minn. 63 (61 N. W. Rep. 828; 51 Am. St. Rep. 500).

IRRIGATION.

Sec. 396.

EPITOME OF CASES.

Right to appropriate water-Priorities. A riparian owner does not lose his right to the use of water by mere nonuser, as against a lower appropriator. Hargrave v. Cook, 108 Cal. 72 (41 Pac. Rep. 18; 30 L. R. A. 390). A prior appropriator has no right to affect an exclusive appropriation of the water of a stream, to the injury of a subsequent appropriator, by selling the water he does not need for his

own use to another. Creek v. Bozeman Water Works Co., 15 Mont. 121 (38 Pac. Rep. 459). A prior appropriator cannot maintain an injunction against a subsequent upper appropriator to compel him to return the water into the natural channel where it appears that instead of doing this he has returned the water into the ditch of the lower appropriator who gets the same use and benefit of it that he would were it turned into the original channel. Austin v. Chandler, Ariz. (42 Pac. Rep. 483). Where the first appropriator files no plat or declaration of intention to extend his appropriation his rights under a second appropriation are subject to the rights of others acquired in the interim, where it appears that such enlargement was not prosecuted within a reasonable time. Taughenbaugh v. Clark, 6 Colo. App. 235 (40 Pac. Rep. 153). A party appropriating who has lost his rights by failure to apply the water to a beneficial use may reacquire them by a subsequent reentry for that purpose if intervening rights have not attached. Beaver Brook Res. Co. v. St. Vrain Res. Co., 6 Colo. App. 130 (40 Pac. Rep. 1066). Where the title to water has been obtained by prior appropriation, a decree enjoining one from wrongly diverting it is not erroneous merely because the party so enjoined owns the land through which the water naturally flows. Ronnow v. Delmue, Nev. (41 Pac. Rep. 1074). Particular fact case in which the question of priorities as between appropriators is determined. Wold v. May, 10 Wash. St. 157 (38 Pac. Rep. 875).

Sec. 397. Extent of appropriation-Abandonment. In the recent case of Wimer v. Simmons, 27 Ore. 1 (39 Pac. Rep. 6; 50 Am. St. Rep. 685), the supreme court of Oregon say: "It is the policy of the law that water of a stream shall be appropriated to the extent only that it is put to or designed for some useful or beneficial purpose. This is the measure of the appropriation. The entire appropriation may not be utilized at once for the purposes designed. In such case a reasonable time is allowed within which to make the application to such purposes, and the surroundings and circumstances of each particular case are elements for consideration in determining what is a reasonable time within which to complete

and fix the extent of the appropriation. Hindman v. Rizor, 21 Ore. 112 (27 Pac. Rep. 13); Simmons v. Winters, 21 Ore. 35 (27 Pac. Rep. 7; 28 Am. St. Rep. 727); Low v. Rizor, 25 Ore. 556 (37 Pac. Rep. 82); Cole v. Logan, 24 Ore. 304 (33 Pac. Rep. 568); Sieber v. Frink, 7 Colo. 154 (2 Pac. Rep. 901). A prior appropriator, having the exclusive right to the use of part or all the water of a stream, may lose the same by abandonment. When abandoned the water becomes publici juris, and subsequent appropriators are entitled to it, according to their respective priorities. The abandonment may be express and immediate, as by the intentional act of the owner and possessor of the right, or it may be implied from his neglect, failure of application to the purpose designed within a reasonable time, nonuser, and the like. Kin. Irr., § 253; Black's Pom. Water Rights, § 96. The right of a prior appropriator may also be lost by the adverse possession of another. Nonuser by the owner of the right and adverse user of it by another for a time equal to the period fixed as the limitation of actions for the recovery of real property is necessary in this state to work a forfeiture through this method. Id., § 98; Dodge v. Marden, 7 Ore. 458; Water Co. v. Crary, 25 Cal. 508.

The party claiming an abandonment has the burden of proving it, and must establish the fact by clear and unequivocal evidence. Beaver Brook Res. Co. v. St. Vrain Res. Co., 6 Colo. App. 130 (40 Pac. Rep. 1066). Where a mere appropriator of water abandons its use it becomes subject to a new appropriation. Smith v. Green, 109 Cal. 228 (41 Pac. Rep. 1022). Particular facts held sufficient to constitute an abandonment of water rights. New Mercer Ditch Co. v. Armstrong, 21 Colo. 357 (40 Pac. Rep. 989). Particular facts held insufficient to show an abandonment of one's rights in an irrigation ditch constructed jointly with another. Moss v. Rose, 27 Ore. 595 (41 Pac. Rep. 666; 50 Am. St. Rep. 743.)

Sec. 398. Appropriation of water on public lands. In the case of Utt v. Frey, 106 Cal. 392 (39 Pac. Rep. 807), the supreme court of California.say: "One who, in California, desires to appropriate the water of a stream upon the vacant and unappropriated public lands of the United States

for a useful purpose may do so by the construction of a ditch or other medium of conduit, and actually appropriating the water and conducting it to some point where it can be utilized in fulfillment of such useful purpose; and by so doing he acquires, as against all subsequent appropriators and riparian proprietors acquiring title from the United States subsequent to such appropriation, the right to the quantity of water thus appropriated, and an easement of right of way into and over the public land traversed by his ditch or conduit so constructed and used for such purpose. If one animated by a like desire to appropriate water under like circumstances finds a ditch already constructed to hand, takes peaceable possession thereof, and appropriates the water for a like or similar useful purpose, he thereby acquires a like right as against all the world, except the true owner, or those holding under or through him. If nature or art has furnished the medium of appropriation, he may avail himself of the gift or labor without being held liable to those having no interest therein, and in no wise connected therewith. To the owner of a ditch thus possessed and used such appropriator must account until his possession and user ripens into a title by prescription or adverse user. His right in such case will depend for priority, as against other appropriators of water from the same stream, upon the date of his possession and appropriation, and not upon the date of the original construction of the ditch and appropriation by some other person under whom he does not hold, and between whom and himself there is no privity of estate. His appropriation in such a case is a new and independent one, and must stand or fall upon its own merits."

The right of prior appropriation of water from streams on public lands for mining and irrigation purposes existed as a part of the laws and customs of that portion of the state of Washington east of the Cascade mountains, and was taken notice of judicially by the courts, prior to the Act Cong. July 26, 1866; that act did not create the right but simply recognized existing rights. Isaacs v. Barber, 10 Wash. St. 124 (38 Pac. Rep. 871; 45 Am. St. Rep. 772; 30 L. R. A. 665). See Public Lands.