of my estate, making such improvements from time to time as the business seems to warrant and require, and paying" the annuities to the societies named, and the balance of the net annual income from the property to the wife annually during life. By the death of the widow she has ceased to be derstood that the statute de donis was in insured and in good repair, paying all taxes force in this state, and that estates tail and claims against said property, includmight be created; but in 1837 it was helding any deficiency arising in the settlement that the statute had been impliedly repealed by the state statutes relating to the descent and devise of property, and consequently that such estates no longer exist here. Jewell v. Warner, 35 N. H. 176; Crockett v. Robinson, 46 N. H. 454. A statute was passed in 1837 enabling a tenant in fee tail to convey the land by deed, and thereby bara beneficiary under the trust. No suggestion all remainders and reversions expectant on the estate tail. Laws 1837, chap. 340, § 1, p. 316. This provision was continued in the Revised Statutes (chap. 129, § 1), but was dropped upon the enactment of the General Statutes in 1867, no doubt because of the intervening decisions above cited. The policy of the state, now well established, is that real estate shall not be tied up indefinitely by entailment. Attempts to do so in a case like this result in the transmission of an estate in fee, instead of in tail. Crockett v. Robinson, supra. A primary object of the testator in this case appears to have been to insure the payment to the three societies named of the annuities given to them. As will be seen later on, this object is not defeated, nor is its fulfilment imperiled, by following the policy of the state in the in-charges appears to have been made for the terpretation of this devise. It follows, also, from what has been said, that there was no remainder or reversion for the devise over to the societies to operate upon, in case of the failure of the testator's issue. has been made that there are any claims outstanding against the property or the testator's estate. Apparently the only beneficiaries of the trust now left are the three societies. They and the plaintiffs are the only parties interested in the property. It clearly appears that the testator's intention was that the annuities should be paid from the income of the property, not from the property itself. This appears from the fact that, after making provision for the payment of the taxes, insurance, and other incidental charges against the property, and the annuities to the three societies, the testator provides that "the balance of the net annual income" shall be paid to his wife annually during life. The provision for the payment of taxes and other incidental purpose of preserving the body of the property to produce income to meet the payments to the annuitants and the widow. The presence of this idea in his mind is also shown by the devise over of the property, should Further than this, it is plain that the fail- the time ever come when there is no lineal ure of issue referred to was not a failure at descendant to occupy and care for the propthe death of the first taker, but a failure at erty as directed. The annuities are charged some indefinite time in the future. The upon the income, and not upon the corpus of language is, "Should my heirs and their the property. Nudd v. Powers, 136 Mass. heirs cease to exist, and the time ever come 273; Delaney v. Van Aulen, 84 N. Y. 16; when there was no lineal descendant," etc. | Irwin v. Wollpert, 128 Ill. 527, 21 N. E. This language removes all doubt on this 501; DeHaven v. Sherman, 131 Ill. 115, 6 point. The devise over to the societies, be- L. R. A. 745, 22 N. E. 711; Baker v. Baker, ing limited upon an indefinite failure of is- 6 H. L. Cas. 616. The duty is placed upon sue, conflicts with the public policy above the plaintiffs and their successors in the lementioned, and is void for remoteness. gal title to the property to pay the taxes and Downing v. Wherrin, 19 N. H. 9, 49 Am. other incidental charges upon it for the Dec. 139; Hall v. Chaffee, 14 N. H. 215, 221; time being, and to pay from its net income Pinkham v. Blair, 57 N. H. 226; Edgerly v. the annuities, whether the income be derived Barker, 66 N. H. 434, 459, 28 L. R. A. 328, from tenants or from use of the property by 31 Atl. 900. The estate which the four chil- themselves. So long as they faithfully perdren got by the devise "to them and their form this duty, the primary object of the heirs, forever," was an estate in fee, notwith-testator is fulfilled. The personal interests standing the subsequent provision in the of those in whom the legal title to the propwill above considered. But the four chil- erty is lodged for the time being (they being dren, and all others who succeed them in entitled to the income of the property, extitle to the property, are charged by impli- cept the sum required to pay the annuities) cation with a trust in respect to it, to a cer- operate as a guaranty that the taxes and tain extent. New Parish v. Odiorne, 1 N. other incidental charges will be seasonably H. 232, 236; Hutchins v. Heywood, 50 N. H. paid and that the property will be proper491, 496; Tappan's Appeal, 55 N. H. 320, ly improved. But, should they fail to per321. The devise "to them and their heirs, form the duty in any particular, and the inforever," is "by their keeping the buildings terests of the societies be affected or pre 2. A prescriptive right te water cannot be acquired by merely accepting and using it when it is allowed to flew into one's clusive use of it whenever he chooses to ditch by the original owner, who makes exdo so. Ditch-right of way. judiced thereby, the court of equity, in the Same-prescriptive right exercise of its powers relating to trusts, will afford the beneficiaries an adequate remedy. It does not appear, other than from the very general description of the property giv en in the case, what its income producing capacity is. As described, the property is quite extensive in quantity, and appears to 3. An easement, and not a fee, is acbe favorably located for business purposes,quired by a ditch company by a rule of and to have acquired a particular business court in compliance with its petition for a character by prior use. It would seem prob- right of way under a statute providing able that its net income will be sufficient at that, upon the entry of such rule, the comall times to pay the annuities and something pany shall become seised in fee, or shall have the exclusive right, title, and possesto the general owners. It is unnecessary to consider at this time what would be the sion of such lands described in the rule as required to be taken. effect upon the annuitants in case the net Same-right of fee owner to cross. income should be insufficient at any time to 4. An owner of land across which an pay them in full,—a question that may never easement has been acquired for a right of arise. An annuity may be perpetual, or for way for a ditch has a right, in subordination life, or for a period of years. A gift of an to such easement, to cross it with a pipe annuity to a person, without a limitation line to utilize, on one side of the ditch, or qualification as to duration, would gener- water developed on the other side. ally be understood as designed to continue during the life of the annuitant. 2 Story, Eq. Jur. § 1065a, and notes; Bates v. Barry, 125 Mass. 83, 28 Am. Rep. 207; Yates v. Maddan, 3 Macn. & G. 532; Blight v. Hartnoll, L. R. 19 Ch. Div. 294. Here the annuitants are corporations, and all the evidence tends to show that the intention was that each annuity should continue so long as the corporation to which it is given exists and fulfills the purposes designed by the corporation's charter. That it may continue perpetually does not affect its validity. Charitable trusts are not within the rule against perpetuities. Rolfe & R. Asylum v. Lefebre, 69 N. H. 238, 45 Atl. 1087. Case discharged. All concur. COLORADO SUPREME COURT. (November 6, 1905.) APPEAL by plaintiff from a decree of the The facts are stated in the opinion. Crescent Min. Co. v. Silver King Min. Co. 17 Utah, 444, 70 Am. St. Rep. 810, 54 Pac. 244; Willow Creek Irrig. Co. v. Michaelson, 21 Utah, 248, 51 L.R.A. 280, 81 Am. St. Rep. 687, 60 Pac. 943; Hanson v. McCue, 42 Cal. 303, 10 Am. Rep. 299; Painter v. Pasadena Land & Water Co. 91 Cal. 82, 27 Pac. 539; Southern P. R. Co. v. Dufour, 95 Cal. 615, 19 L.R.A. 92, 30 Pac. 783; Mosier v. Caldwell, 7 Nev. 363; Strait v. Brown, 16 Nev. SMITH CANAL OR DITCH COMPANY, 317, 40 Am. Rep. 497; New Albany & S. R. Appt., V. Co. v. Peterson, 14 Ind. 114, 77 Am. Dec. 60; Greencastle v. Hazelett, 23 Ind. 186; COLORADO ICE & STORAGE COMPANY Frazier v. Brown, 12 Ohio St. 294; Clark v. Case Note. Although the ruling in the as irrigation ditches is concerned, the rul above case as to the right of the fee ownering is well supported by decisions in analoto make use of the land in subordination to gous cases. Thus, in regard to drainage a right of way for an irrigation ditch ap-ditches it has been held that no greater title pears to be one of first impression so far passes to the owner of the right of way than Const. art. 16, &$ 510 et seq.; Willow | strip of land to conduct the water of the Creek Irrig. Co. v. Michaelson, and Bruening springs? v. Dorr, supra. The condemning company took an easement merely. Mobile & O. R. Co. v. Postal Teleg. Cable Co. 76 Miss. 731, 45 L.R.A. 223, 26 So. 370; Gulf, C. & S. F. R. Co. v. Southwestern Teleg. & Teleph. Co. (Tex. Civ. App.) 52 S. W. 86; Southwestern Teleg. & Teleph. Co. v. Gulf, C. & S. F. R. Co. (Tex. Civ. App.) 52 S. W. 106; Chicago, B. & Q. R. Co. v. Chicago, 149 Ill. 459, 37 N. E. 78; Mobile & O. R. Co. v. Postal Teleg. Cable Co. 101 Tenn. 62, 41 L.R.A. 403, 46 S. W. 572; Crescent Min. Co. v. Silver King Min. Co. supra. Campbell, J., delivered the opinion of the court: or artificial 1. As to the first question, plaintiff's case as made by the complaint, to which its evidence was directed, was that by appropriation and use the waters of natural springs arising upon its own lands, which in welldefined natural surface channels flow into its canal, now belong to it as such owner, and that defendants were wrongfully trying Deto divert the same to their own use. fendant's case, both by pleading and evidence, is that these waters did not constitute springs or natural water courses, but percolated through, and by artificial means had been collected into bodies springs on defendant Baker's own land, which by artificial surface channels flowed into plaintiff's canal, and was, with his consent, used by plaintiff only when he did not choose to use the same for his own lawful purposes, which he often did. The object for which the plaintiff company was formed is not stated in the complaint, though it appears from the record that it constructed a canal across the 40-acre tract of land then owned by defendant Baker's grantor, and thus diverted and carried water from a natural stream (Platte river), and used it as motive power to propel the machinery of a mill. No part of the water thus taken from the river is involved in this case, but only certain water which, as shown by the uncontradicted evidence, rises on defendant Baker's lands, and therefrom flows, either in a natural or artificial channel, and which is either percolating water proper, as defendants assert, or, as claimed by plaintiff, water flowing in a well-defined channel from natural springs down into plaintiff's canal, and at a point below its head gate. The trial court found, in accordance with the defendants' claim, that these waters originally existed as percolating waters in defendant Baker's land, and by artificial means were developed and collected by him into artificial basins in the semblance of springs, and as such, therefore, belonged to him, as an integral part of his own land, which ownership has never been devested. It also found that, if these waters are diverted from plaintiff's canal by fee has a right to use the land in any way not inconsistent with the exercise of the easement taken, and may even erect buildFarnham, Wa-ings over the drain if he can do so without interfering with the reasonable rights of the public (Ibid.); Palmer v. Persse, Ir. Rep. 11 Eq. 616); but it has been held that, where a brook is converted into a sewer under statutory authority, with nothing to limit it to a covered sewer, abutting owners may be restrained from placing buildings over it which will make the care of it more difficult (Melrose v. Cutter, 159 Mass. 461, 34 N. E. 695). In order to carry to its ice plant water from springs situate on defendant Baker's land, the defendant ice company, under an agreement with its codefendant, dug a trench and therein laid a pipe, which traversed the lands between the springs and the ice plant, including a strip 40 feet wide which plaintiff had theretofore acquired as a right of way for its canal. To this the plaintiff canal company objected, claiming as its own exclusive property the water of the springs by appropriation and from long-continued use, and the strip of land in fee resulting from a condemnation thereof for ditch purposes, while defendant Baker claimed exclusive ownership of the water as an essential part of his own land, and from use thereof, and an easement or right of way across the 40-foot Just bestrip for transporting the same. fore the defendant ice company had finished the trench and laid the pipe, plaintiff applied for, without notice, and received, a temporary restraining order against any further attempts to divert these waters or to carry them across its premises. On the final hearing the court found the issues of fact and law for defendants, dissolved the injunction, and dismissed the action. There are two distinct branches of the case: First, Which party owns the waters of the springs? Second, Has defendant Baker an easement or right of way over the the needs of the public require, so that the ters, 1063; Wilson v. Scranton, 141 Pa. 621, are defendants, it would not substantially inter- some way known to the law. We wish to refere with the operation of plaintiff's mill,| peat that plaintiff's rights, if any, are not to as the supply from the river is, so far as the be measured by rules which determine the evidence shows, adequate for that purpose. rights of the three classes just mentioned. The plaintiff insists that these findings Its claim, as stated, is that as a canal and not supported by the evidence, which, mill owner it is now entitled, as the result it claims, shows that these waters have, ever of appropriation and adverse use, to waters since its canal was dug, flowed in well-de- which originally belonged to another. The fined surface channels from natural springs very claim that plaintiff is the owner of into its artificial waterway, and by appro- these waters as the result of an appropriapriation and use thereof for many years it tion and adverse use necessarily implies that has acquired title thereto. If the common- originally they belonged to another, and not law doctrine as to ownership of percolating to the plaintiff; for, if the waters are an inwaters prevails without qualification in this tegral part of lands which the plaintiff state, and if the character of the waters in owned, they were already his property, and dispute is the sole test of the rights of the were not, by him, the subject of appropriaparties, then the decree for defendants must tion or acquisition by use as the property of stand, because the trial court's findings, another. So, then, the question before us, which are binding upon us, were in favor of on the answer to which the rights of the partheir contention that these are the percolat- ties hinge, is whether the plaintiff has, by ing waters of their own land artificially col- appropriation or adverse use, acquired the lected thereon. Though the judgment of the waters in dispute, which originally belonged trial court for the defendants was based to Baker. And it is of no consequence here upon this proposition, and both parties ap- whether they are natural springs arising parently proceeded upon the same presump-on the defendant's lands or have been intertion, we think the decision of the case should be put on another ground. We must not be understood, however, as intimating The doctrine of appropriation, as underthat under the qualified doctrine pertaining stood in the arid states, may or may not to percolating waters, as recently announced under the facts of the case, apply to thes by the supreme court of California in the waters. That we need not decide, for it is cases referred to at a later place in the opin- clear that, according to the findings, the ion, the defendants would not be entitled to plaintiff has not made a valid appropriation. the waters here in dispute. No such ques- Certainly it took no affirmative or positive tions as were decided in those cases are be- steps with that end in view, and its passive fore us, and, for the reasons hereinafter giv-acceptance of the waters that flowed into en, we should withhold opinion until a case is presented requiring it. cepted as percolating waters and artificially collected. verse use has been established, for the findings were that whenever defendant Baker wished to use these waters for his own do mestic purposes, for irrigating lands, or for filling fish ponds, or for sale as merchandise, or otherwise, he did so under claim of ownership. We think the trial court was right, under the evidence, in holding that defendant Baker had never abandoned these waters, and that the plaintiff had never acquired them by appropriation, prescription, or ad its canal, which was acquiesced in by the original owner when he did not wish to use The controversy here is not between ownit for purposes of his own, does not constiers of the overlying lands, the percolating tute a valid appropriation. It is also equalwaters beneath which have been interceptedly clear that no right by phrescription or ador collected by one to the injury of the other; nor is it a dispute between a senior and junior appropriator of water from a natural stream, where the senior complains of a diversion of water, which, flowing in a well-defined channel, or by percolation, reaches the common source of supply. Neither is the question one between the appropriator of water from a natural stream and the owner of land constituting a part of its natural watershed, who intercepts, as his own percolating waters, those which otherwise would ultimately reach the channel or supporting bed of the stream. All questions, therefore, as to whether the water is percolating water or water of a natural spring are immaterial. The law, under the facts, makes these waters, arising, as they do, on defendant Baker's lands, whether they be artificially collected percolating waters or the waters of a natural flowing stream or spring, his property, as against the plaintiff in this case, unless the latter has acquired them in verse use. In order that there may be no misapprehension as to what is decided in this action, it is not inappropriate again to say that herein are in no wise involved the rights of either of the three classes of claimants above mentioned. Bruening v. Dorr, 23 Colo. 195, 35 L.R.A. 640, 47 Pac. 290; Platte Valley Irrig. Co. v. Buckers Irrig. Mill. & Improv. Co. 25 Colo. 77, 53 Pac. 334; Buckers Irrig. Mill & Improv. Co. v. Farmers' Independent Ditch Co. 31 Colo. 62, 72 Pac. The it; the larger part lying to the west. 49; and Wilson v. Ward, 26 Colo. 39, 56 Pac. 573,-cited and relied on by both parties, are not in point, even if the kind of water here was material. The law of percolating waters was not involved in any of them. The questions were between senior and junior appropriators of waters of a natural stream, which were attempted to be withdrawn directly therefrom, or from springs which formed their tributaries. The law regulating ownership of percolating waters in the arid states is now of great-as time passes will be of still greater-importance; and, until a proper case is presented calling for it, we decline to announce the rule applicable to our local conditions. We make this observation in view of the fact that, after the briefs on this appeal were in, the supreme court of California, in a series of cases, has considered this important question, and established for that jurisdiction the rule that the right of an owner of land to use water percolating therein is the right only to a reasonable use thereof for the benefit and enjoyment of his land. To what extent, if at all, the common-law doctrine of ownership of percolating water shall be modified, was held to depend upon the particular facts of the case; but in any controversy of this nature the general doctrine cujus solum might be, the court said, qualified by the maxim, Sic utere tuo, etc. Katz v. Walkinshaw, 141 Cal. 116, 64 L.R.A. 236, 99 Am. St. Rep. 35, 70 Pac. 663, 74 Pac. 766; McClintock v. Hudson, 141 Cal. 275, 74 Pac. 849; Cohen v. La Canada Land & Water Co. 142 Cal. 437, 76 Pac. 47; Montecito Valley Water Co. v. Santa Barbara, 144 Cal. 578, 77 Pac. 1113. In these California cases the controversy was between owners of overlying lands, one of whom complained that waters naturally percolating in his own soil had been unlaw-bate judge, and the amount of the award, if fully intercepted by another owner, or be tween appropriators of water from a natural stream, or between them and adjacent or riparian landowners who had intercepted percolating waters which naturally reached and formed part of the stream itself. But here, as already stated, the controversy is between an owner of water, either percolating or from springs, and which comes to the surface on his lands, and the owner of an artificial water way, who claims as the direct appropriator and by adverse use thereof. 2. The second specific question for determination is whether defendants have the right to build the trench and lay the pipe line across the strip of land for the purpose of carrying water to the ice plant. This depends upon whether defendant Baker has a right of way across this strip for utilizing the tract of land across which the canal was built. The canal was dug in such a way as to leave part of the tract on either side of any, properly deposited to the credit of the |