1887.] Opinion of the Court-Deady, J. company," under the name of "The Wallamet Woolen Manufacturing Company." As a matter of law this association was nothing but a partnership doing business under this name, as it lawfully might. The grant was made to Williams and Watt, two of the partners, and Reynolds, for the use of the company, and soon after the persons constituting the same were by the legislature "declared a body politic and corporate," with the organization and name then in use by them. The natural persons constituting this association, partnership, or company, and calling themselves collectively The Willamette Woolen Manufacturing Company, were in existence at the date of the deed and capable of taking the beneficiary interest in the grant. The description of them as stockholders in a certain "joint stock company" was a sufficient designation of them. (Friedman v. Goodwin, McAll. 149.) But if this were otherwise, and there was no cestui que trust or use in existence at the date of the deed, nor until the actual incorporation of the Woolen Company in the December following, the objection is not well taken. Mr. Washburn (2 Wash. Real Prop. 3d ed. 173), after a careful review of the authorities, says: "It may be laid down as a general proposition that it is not necessary in order to create a trust estate, that a cestui que trust should be named, who is in being." And again (2 Wash. Real Prop. 3d ed. 198), he says: "A trust may be valid and effectual, where a trust is named, although the cestui que trust may not then be in esse, provided such cestui qui trust subsequently came into being." (See, also, on this point, Ashurst v. Given, 5 Watts & S. 328; Urket v. Coryell, 5 Watts & S. 60.) Counsel for the defendants set out the deed in his brief as it should have been in the bill, from which it appears that the consideration for the deed was four hundred dollars, and that thereby Porter and wife did "release and quit claim" to the trustees therein named the easement in question to the use of the Woolen Company "alone"; and that the word "assigns" is not used therein, or any other word or phrase indicating an intention on the part of the grantors that any assignee or successor in interest of the company should have or exercise the rights and privileges thereby granted. Opinion of the Court-Deady, J. [December, The term "assigns" is not necessary in a deed, either as a word of limitation denoting the quantity of the estate granted, or to give the grantee authority to dispose of the same. When the Woolen Company acquired the easement in question it took the same with the rights to dispose of it at pleasure, unless restrained by some express provision in the deed or for lack of authority as a corporation. The deed contains no such provision, and the act, as we have seen, conferred on the company an unqualified power of disposal. The necessity of using the word "alone" in this connection is not apparent. But the only effect that can be given to it with any show of sense or reason is that the trustees named in the deed took the right and privilege thereby granted, not for themselves, but solely for the use and benefit of the Woolen Company; and this is no restraint on the disposing power of the latter. And a voluntary sale of the right and privilege by the company, or one made on legal process to satisfy its debts, would so far be a disposition to the "alone" or sole use of the company. If Porter and wife had sold their donation outright to these three trustees, to the use of the Woolen Company "alone," the result would have been the same. The company being the owner of the property could dispose of it when and to whom it pleased. And lastly, it is objected that this right is an easement in gross and therefore not assignable by the grantee, the Woolen Company. In support of this conclusion, it is claimed that there is no land or estate described in the deed in connection with which the water taken from the Santiam was to be used. It is common learning that a right or easement in or upon the land of another, to be used by the grantee generally and not in connection with or dependent upon any other land or estate, is not assignable. It is called a right in gross, in bulk. It belongs to the person and dies with him. But an easement, such as a right of way over the land of another or to take water therefrom, is said to be appurtenant or appendant when the grant thereof is made with reference to other land, whereon or in connection wherewith it is to be used or enjoyed. The land which is burdened with the way or from which the water is taken is called the servient estate, while that which is benefited by the 1887.] Opinion of the Court-Deady, J. easement is called the dominant estate. The easement is said to be appendant or appurtenant to the dominant estate, and passes with it as an incident thereof. (3 Wash. Real Prop. 340; Wash. Ease. 2, 18.) An easement appurtenant, as against one in gross, is favored in the law, and courts will not construe a grant of an easement to be a mere personal right, unless such intent plainly appears. Mr. Washburn (Wash. Ease. 45) says: "Though an easement, like a right of way, may be created by grant in gross, as it is called, or attached to the person of the grantee, this is never presumed when it can fairly be construed to be appurtenant to some other estate, and if it is in gross it cannot extend beyond the life of the grantee." The deed of April 3, 1856, provides that the canal to be cut through the grantors' land shall be "sufficiently large to admit the flow of any amount of water required by said company for their purposes at Salem, and agree to allow them all the rights and privileges necessary for the construction, use, and preservation of said canal." It is manifest from the deed, and the circumstances attending its execution, that the grant to the Woolen Company was made and received with the intent and purpose that the water of the Santiam would be taken from and through the Porter donation and conducted by the company to or near Salem, and there used, at least to operate the mill or mills of the grantee then or thereafter to be built at that place. There being no limit to the time when the grantee should commence to take and conduct this water to Salem, or the quantity it may take and use, and as the grant is in fee and assignable with the dominant estate, in my judgment the owner of such estate, or its successors in interest, may continue to take this water from the Santiam and conduct it to Salem, and there use it to operate any mill or machinery owned by them, no matter when erected. And under power given to the Woolen Company, by its act of incorporation, to dispose of the water at pleasure, it and its successors in interest in the dominant estate, and this easement and appurtenances thereto, may conduct and deliver this water at Salem for hydraulic purposes to others on such terms and Opinion of the Court-Deady, J. [December, conditions as may be agreed on. Of course the legislature could not confer on the company any right to enter on the land of the Porters and take this water without their consent, or the payment of damages therefor. But the deed of Porter and wife practically gives the company the right to take out of the river, on the Porter donation, all the water it wants for its purposes at Salem; and the disposition of it, when there, as authorized by the act, cannot work any prejudice or wrong to the grantors or their assigns, by a subsequent grant or conveyance, such as these defendants claim to be. The right to relief in equity under the circumstances is clear. The remedy at law is utterly inadequate. The interference of the defendants with the prolongation of the plaintiff's ditch, and the flow of water therein, is a continuous trespass, and an injunction will be allowed to prevent it, at least on the ground of preventing a multiplicity of suits. The remedy by an action at law for each act or each day the trespass is repeated is altogether inadequate. (3 Pom. Eq. Jur. sec. 1357; Coulson v. City of Portland, 1 Deady, 494.) Counsel for the defendants in his brief refers to an action of ejectment pending in this court by the plaintiff against these defendants for the possession of the prolongation of this ditch. But the result of the action will not determine the right of the defendants to take water therefrom, nor prevent the defendants from lowering the willow dam which they have constructed below the old dam of the plaintiff's which they have partially removed, by which means they can draw off all the water that enters said prolongation and not allow any of it to enter the ditch leading to Mill Creek. The demurrer is overruled." 1887.] Opinion of the Court-Sawyer, C. J. HAMILTON v. SOUTHERN NEVADA GOLD AND SILVER MINING COMPANY. CIRCUIT COURT, DISTRICT Of Nevada. DECEMBER 23, 1887. 1. MINES AND MINING-LOCATION OF-RIGHTS UNDER. -The locator of mining ground under the United States Revised Statutes, prior to the actual payment of the purchase money, and the reception by him of the receipt therefor, issued by the register and receiver of the proper land office, possesses a mere privilege to purchase the property, and a constable's sale of the mine before payment only passes that privilege. If the sale is valid, the purchaser can only step into the shoes of the execution debtor, and thereby obtain a right to go on, perform the necessary acts, pay the purchase money, contest the rights of other adverse claimants, and make the entry and receive the certificate of purchase himself. If the judgment debtor subsequently performs these acts and receives the title from the government, a new and further title becomes vested in the judgment debtor, which does not pass by virtue of the officer's deed. 2. PUBLIC LANDS-TITLE TO — -PAYMENT-RECEIPT.-A party having paid the purchase money, and received the certificate of purchase, is the owner of the land. The United States has ceased to have any pecuniary interest in it. It holds the naked, dry, legal title for the holder of the certificate. 3. SAME.-Such a certificate of purchase cannot be collaterally assailed. 4. LIMITATIONS OF ACTIONS-MINING CLAIM-ADVERSE POSSESSION. - Possession of a mining claim, in order to vest a title under the statute of limitations, must be open, notorious, exclusive, and continuous; and not a loose, uncertain, scrambling, and mixed possession. 5. MINES AND MINING-ADVERSE CLAIMS-PUBLICATION OF NOTICE. - Under an application for a patent for mining ground, under sections 2325 and 2326, Revised Statutes, unless adverse claims are filed with the register and receiver of the proper land office within sixty days after the first publication of the notice, such adverse claims are waived, and the applicant is entitled to a patent upon the payment to the proper officer of the statutory fees and costs, and it shall thereafter be assumed that no adverse claim exists; and thereafter no objection from third parties to the issue of the patent shall be heard, except that it be shown that the applicant has failed to comply with the terms of the statute. 6. SAME.-The interest or title obtained by a purchaser at a constable's sale prior to the expiration of the publication of the notice is an adverse claim, which, unless filed as the statute provides, is waived. 7. SAME.-The statute makes such a proceeding regularly prosecuted when the period of notice is completed, without the presentation of an adverse claim absolutely conclusive against adverse claims. The proceeding is in the nature of a proceeding in rem, and is binding upon all the world, so far as any unpresented adverse claims are concerned. 8. JUDICIAL SALE-TITLE OF PURCHASER.-The purchaser at a judicial sale acquires only the present interest of the judgment debtor. No after-acquired title is affected by such a sale. The sheriff's deed can, at most, only have the operation of a quit-claim deed in the strictest sense. 9. EQUITY-MASTER- OBJECTIONS BEFORE.-The general objection, "irrelevant and incompetent," made before the master in an equity case, is not sufficiently specific to be entitled to consideration upon the hearing. XIII. SAWY.-8. |