defendant at the time was fully cognizant of every item going to make up the amount. He says in his letter that since coming from Tillamook, where the plaintiff lives and does business, he has made a careful study of their matters, and concluded to make an offer to give his note for $549.57, with interest at 8 per cent, and mortgage to secure the payment of the same, the plaintiff to give his "good deed" to the premises; and we find that, although the plaintiff insisted upon different terms, more advantageous to himself, the defendant had his own way, and the settlement was made in accordance with his written proposition. Defendant admits that the bonuses, as he styles them, aggregating $120 or $130, were included in the settlement, thus indicating effectually that he had perfect knowledge of them and of the Coats judgment at the time; and finally he says that the settlement was consented to by him because he was not in circumstances to go into a lawsuit at that time, his business being in such a state that he could not well contest the matter then. This is tantamount to an admission of the settlement touching these two claims, which, it is alleged, were fraudulently included therein without his knowledge, and, at the last, defendant seems to rest his defense upon the idea of coercion, which is not satisfactorily shown to be the case. Upon the whole, we are convinced that the settlement was entered into with a full knowledge upon defendant's part of all the items going to make up the amount finally agreed upon between him and the plaintiff, and that he was not deceived or misled respecting any of them; and, the note in suit having been the result of such settlement, he is now precluded from controverting its regularity and binding effect in any particular.

Some usurious items may have been included in the settlement, and it looks very much as if such was the case, which would not in themselves support the note; but, as we have previously had occasion to observe, the pleadings set out no such defense, and we are therefore powerless to help the defendant, even on account of such demands. If there exists at the time of the compromise and settlement a mutual, bona fide difference or dispute between the parties touching claims honestly and in

good faith asserted, not arising as a matter of law, but from facts equally within the knowledge of both parties, so that neither has exercised an undue advantage over the other, then is the compromise and settlement final and conclusive between them as to all matters included therein. Of course, it is no compromise where one party knows that he has no claim, but deceives the other into believing he has, for, if one has no claim and knows it, the other party being deceived, he has conceded nothing by way of compromise; but, as has been aptly said, "he has cheated." So, also, if there was a mutual mistake or imposition through fraud, so that there has been included in the settlement an item or items for which no fair consideration in fact exists, the settlement ought to be held void pro tanto, the issue being properly presented for adjudication. In the absence of fraud or mistake, however, the compromise of bona fide claims equally within the knowledge of the parties concerned must be held final and conclusive of all matters going to make up the settlement: Smith v. Farra, 21 Or. 395 (28 Pac. 241, 20 L. R. A. 115); McGlynn v. Scott, 4 N. D. 18 (58 N. W. 460); Prince v. Prince, 67 Ala. 565; Thompson v. Hudgins, 116 Ala. 93 (22 South. 632) ; Creutz v. Heil, 89 Ky. 429 (12 S. W. 926). So we conclude in this case that defendant is bound by his settlement and compromise with the plaintiff, and that his defenses set up by his separate answers are without merit. The decree of the circuit court will therefore be affirmed. AFFIRMED.

Decided 18 July, 1904; modified 28 August, 1905.

HARRINGTON . DEMARIS.

77 Pac. 603, 82 Pac. 14,

.... L. R. A.

.....

ADVERSE USE-LIMITATION OF ACTION.

1. A riparian owner claiming a right to use part of the water of a stream cannot assert an adverse right to any water as against an upper proprietor whose use has not been curtailed so that he has been called upon to notice the claim of the lower owner.

ADVERSE USE OF UNCLAIMED WATER.

2. The use by an upper riparian proprietor of water from a spring which is not tributary to the stream is not adverse to the rights of a lower owner on the same stream.

ARTIFICIAL CHANGE OF WATER COURSE-RIPARIAN RIGHTS.

3. Where the respective owners of different tracts of land, by a concert of action, remove a dam, and permit water from the springs of a swamp to run into a stream which the water from the springs had never run into

before, they thereby make the springs tributary to the stream and subject to the rules of law applicable to riparian ownership.

EVIDENCE REVIEWED.

4. In this suit the evidence seems to sustain the finding of the trial court as to the amount of water to which plaintiff is entitled.

WATER RIGHTS-REMOVING INTERFERENCE.

5. Though a dam maintained by defendant interrupts the flow of water to which plaintiff is entitled, defendant need not remove it, where the water would then injure his land, so long as he adopts other means to bring the water to plaintiff's lands.

From Umatilla: WILLIAM R. ELLIS, Judge.

Statement by MR. CHIEF JUSTICE MOORE.

This is a suit by S. F. Harrington against A. L. Demaris to enjoin interference with the flow of water in the channel of a creek to plaintiff's premises. It is alleged in the amended complaint, in substance, that until August, 1900, a natural stream of water, consisting of about 480 inches, had its source from time immemorial in certain springs arising in and issuing from the land of one R. M. Dorothy, in Umatilla County, and flowed westward through defendant's land, thence across plaintiff's premises, and through the lands of "other persons," whereby plaintiff's premises were subirrigated, and he and his predecessors in interest had used such water for a beneficial purpose; that more than thirty-five years prior to the bringing of this suit his grantor dug a ditch from the channel of the stream, diverting therefrom 120 inches of water, which was conducted to the land now owned by him, and there continuously used adversely to the defendant and to all other persons for more than ten years prior to August, 1900, in irrigating crops and an orchard; that after such diversion and appropriation there remained in the channel of the stream 360 inches of water, which continued to flow across plaintiff's premises, "and on and to the lands of other persons," and which plaintiff used for stock and domestic purposes, and claims the right to have such quantity continually to flow across his land; and that in August, 1900, the defendant unlawfully placed a dam in the bed of the stream, and prevented the water from flowing to plaintiff's premises, thereby injuring the grass, crops, and fruit trees growing thereon, to his damage in the sum of $2,000.

The answer denies the material allegations of the complaint, and, for a separate defense, avers, in effect, that water originally collecting in a swamp on Dorothy's land never reached plaintiff's premises by any channel having a bed or banks, but that during the rainy season, when the accumulation was greatest, the overflow found its way westward on the surface to defendant's land, where it sunk in the ground and was lost, and another part found its way northward, emptying into an old channel of the Walla Walla River; that about fifteen years ago Dorothy caused the swamp to be drained by digging one ditch northward to such old channel, and another westward to the boundary of his land, where defendant appropriated the water flowing therein, and also extended the latter ditch northward to the old channel, in which he placed a dam, and, by means of another ditch, conducted all the water flowing from the swamp, in the irrigating season, to his premises, where it was appropriated to a beneficial purpose, and ever since has been used adversely to the plaintiff and to all other persons. For a further defense, it is alleged that from time immemorial the stream mentioned in the complaint has had its only source in a spring of water issuing from defendant's land, which, augmented by the flow of water from other springs on his premises, originally consisted of a volume twelve inches wide and of the same depth, two thirds of which for more than twenty-five years has been adversely used by him and his predecessors in interest in irrigating crops, the remainder being permitted to flow to plaintiff's premises; that from natural causes the volume of water originally flowing in this stream has gradually diminished, and the surplus, after supplying the defendant's use, sinks into the porous soil before reaching plaintiff's land; that in April, 1900, defendant built a new dam in the stream to take the place of an old one therein, but diverts no more water thereby than formerly, "and that defendant's diversion and use of the water of said stream has at all times been, and now is, a right which belongs to him absolutely, as appurtenant to the land by him owned." It is also alleged that, in the fall of 1875 or 1876, defendant's predecessor in interest diverted and appropriated to a beneficial purpose two thirds of

all the water flowing from springs on defendant's land, and ever since that time such water has been used adversely to plaintiff and to all other persons, and that during the last five years, owing to the diminution by natural causes of water flowing from these springs, the quantity now used by defendant is less than that originally appropriated by his predecessors. The reply having put in issue the allegations of new matter in the answer, a trial was had before the court, which found the facts, in substance, as alleged in the complaint, and, as conclusions of law deducible therefrom, that plaintiff was entitled to have all obstructions placed in the stream removed, so as to permit one half the water arising from the springs on Dorothy's lands, not exceeding sixty inches, to flow in the channel to his premises, where he could divert forty-eight inches into his ditch, and permit twelve inches to flow in the bed of the stream through his land, but in no event to take more than one half the entire flow, and that the defendant was entitled to use the remaining quantity after supplying that given to plaintiff, who was awarded damages in the sum of $700 by reason of his deprivation of the use of the water; and, having given a decree in accordance therewith, the defendant appeals. MODIFIED.

For appellant there was a brief over the names of Henry J. Bean, Stephen A. Lowell and Thomas G. Hailey, with an oral argument by Mr. Bean and Mr. Lowell.

For respondent there was a brief over the name of Carter & Raley, with an oral argument by Mr. James H. Raley.

MR. CHIEF JUSTICE MOORE delivered the opinion.

An examination of the pleadings, the substance of which is hereinbefore set out, shows that the controversy involved in this suit relates to the use of water from a stream by riparian proprietors; and, though appropriations of water are mentioned in the complaint and answer, no priority of possession of public land is alleged by either party as a foundation for a vested and accrued right to the use of such water (Rev. Stat. U. S. § 2339, U. S. Comp. St. 1901, p. 1437), nor is it averred by either party that, after the necessary demands of a prior appropriator had