1479, authorized the issuance of a patent to a specified Indian for his allotment. Under Rev. Civ. Code, § 947, subd. 4, where one purports by proper instrument to convey land in fee simple, any subsequently acquired title passes to the grantee. Held, that the Indian's warranty deed dated May 31, 1905, and recorded June 2d, was valid, and passed title, as against his deed of July 10th, recorded the same day, though the patent was not issued until June 29th, the act of March 3d impliedly repealing said provision of the allotment act as to the particular land; and the deed of May 31st imparting constructive notice to the subsequent grantee that title acquired by the Indian under his patent would pass to the prior grantee. 2. APPEAL AND ERROR-REVIEW-FINDINGS.

That in an action involving land the trial court made no finding as to a deed under which, plaintiff claims does not preclude the Supreme Court on defendant's appeal from a judgment for plaintiff from considering such deed, since the finding that plaintiff was the owner necessarily includes any deed in evidence conveying title to him.

Appeal from Circuit Court, Roberts County. Action by E. J. Simonson against Otto Monson. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

Chester L. Caldwell and Howard Babcock, for appellant. Frank McNulty, for respondent.

CORSON, J. This is an action to determine conflicting claims to a tract of land in Roberts county. The complaint is in the usual form, and alleges that the plaintiff is the owner in fee and in possession of the premises. The answer is a general denial; admits plaintiff's possession; and alleges ownership as an affirmative defense, and ownership as a counterclaim. Both parties claim title under Henry A. Quinn, an Indian allottee, under the act of Congress approved Feb. 8, 1887, 24 Stat. 388, c. 119, generally known as the "Indian Allotment Act." By act of Congress approved March 3, 1905, 33 Stat. 1067, c. 1479, the Secretary of the Interior was authorized to issue a patent in fee to said Quinn, and said final patent was issued June 29, 1905. Prior to the last date and on the 31st day of May, 1905, plaintiff obtained from said Henry A. Quinn a warranty deed dated and acknowledged May 31, 1905, which he had recorded in the office of the register of deeds of Roberts county on the 2d day of June, 1905. On the trial the plaintiff introduced in evidence the patent from the United States to said Quinn which was admitted without objection. He then offered in evidence the deed executed May 31, 1905, by Henry A. Quinn to himself bearing date of May 31, 1905, and recorded June 2, 1905. This deed was objected to on the ground that the deed was incompetent and irrelevant for any purpose, and as being absolutely void under the statutes of the United States, being apparently executed, acknowledged, and recorded long prior to the issuance of the patent to the said Henry A. Quinn. This objection was overruled,

and the defendant excepted. The plaintiff also introduced in evidence the deed executed by the said Quinn to the plaintiff purporting to be executed the 30th day of May, 1905, and acknowledged on the 3d day of July, 1905, but not recorded. The admission of this deed in evidence was also objected to on the ground that it appears to have been executed on May 30, 1905, long prior to the issuance of the patent in fee to said Quinn, and on the further ground that said deed had not been recorded. This objection was overruled, the deed admitted, and the defendant duly excepted. The defendant in support of his title offered in evidence a deed purporting to be executed by the said Quinn to himself bearing date of the 10th day of July, 1905, and acknowledged and recorded on the same day for the same premises. The defendant then offered in evidence chapter 119 of volume 24 of the United States Statutes at Large, which was received in evidence over plaintiff's objection. This statute is set out in the abstract, and will be subsequently referred to. The defendant then offered in evidence the act of March 3, 1905, which was admitted without objection.

It is contended by the defendant and appellant that the deed purporting to be executed on May 31st by said Quinn to the plaintiff and recorded on June 2d was void, for the reason that it was executed prior to the issuance of the patent; that the second deed purported to be executed by Quinn to the plaintiff on May 30th and acknowledged on July 3d not being recorded was ineffectual as against the appellant, who had no actual notice of the execution of said deed, and no constructive notice of the same, and that therefore the appellant acquired a good title to the said premises as against the plaintiff by his deed of July 10, 1905.

The plaintiff and respondent contends (1) that the deed executed May 31st, and recorded June 2d, was a valid deed, as it was executed subsequently to the act of March 3, 1905, notwithstanding it was executed prior to the issuance of the patent; that if said deed executed May 31st, and recorded June 2d, was not valid and did not convey the premises then the deed bearing date of May 30th and acknowledged July 3d, and delivered to the plaintiff by said Quinn on that day, being a full warranty deed was good as against the appellant's deed which was simply a quitclaim deed; that the possession of the plaintiff of the premises in controversy constituted constructive notice to the defendant of respondent's ownership of the property, and that such deed was therefore good and valid as against the defendant's quitclaim deed, and that the court was therefore right in making its finding and entering judgment in favor of the plaintiff.

The act approved February 8, 1887, known as the "Allotment Act," provides, among

other things, that where, by treaty or stipulation, the Indians occupy a reservation the same may be surveyed and allotted in severalty to the Indians occupying the same. By section 5 of the act it is provided "that upon the approval of the allotment provided for in this by the Secretary of the Interior, he shall cause patents to issue in the name of the allottees which patent shall be of the legal effect, and declare that the United States does and will hold the land thus allotted, for a period of twenty-five years in trust for the sole use and benefit of the InIdian to whom such allotment shall have been made and that at the expiration of such period the United States will convey the same by patent to said Indian or his heirs as aforesaid in fee discharged of such trust and free of all charge or incumbrance whatsoever. Provided that the President of the United States may in any case in his discretion extend the period. And if any conveyance shall be made of the land set apart and allotted as herein provided or any contract made touching the same, before the expiration of the time above mentioned such conveyance or contract shall be absolutely null and void."

By the act of March 3, 1905, it is provided "That the Secretary of the Interior is hereby authorized and empowered to issue a patent to Henry A. Quinn" for the premises in controversy in this action.

We are of the opinion that the deed executed by Quinn to the respondent bearing date of May 31st and recorded June 2d was a valid deed, notwithstanding the inhibition contained in the act of 1887 before quoted, the same having been executed after the act of March 3, 1905, which in effect repealed by implication the clause in the act of 1887 making any conveyance or contract before the expiration of the 25 years absolutely "null and void" so far as the premises in controversy are involved, and that the court properly overruled the defendant's objection to its admission in evidence.

Subdivision 4 of section 947 of our Revised Civil Code provides: "Where a person purports by proper instrument to grant real property in fee simple, and subsequently acquires any title or claim of title thereto, the same passes by operation of law to the grantee or his successors." The deed executed by said Quinn to the plaintiff bearing date of May 31, 1905, acknowledged on the same day, and recorded on June 2d, is a full warranty deed, purporting to grant the property in fee simple to the plaintiff, and therefore by it the title acquired by Quinn under his patent issued on June 29th passed upon the issuance of the patent by operation of law to the plaintiff under and by virtue of the provisions of the statute above quoted. The act of March 3, 1905, had the effect of leaving Quinn free to convey the premises,

and hence his conveyance, though made prior to the issuance of the patent, had the effect of transferring to the plaintiff the title acquired by him under his patent.

Plaintiff's warranty deed of May 31st having been duly acknowledged and recorded imparted constructive notice to the defendant of plaintiff's right to the property, and that any title that might be acquired by Quinn under his patent would pass by operation of law to the plaintiff. Bernardy v. Mortgage Company, 17 S. D. 637, 98 N. W. 166, 106 Am. St. Rep. 791; Same v. Same (S. D.) 105 N. W. 737; Zerfing v. Seeling, 12 S. D. 25, 80 N. W. 140; State v. Kemmerer, 14 S. D. 169, 84 N. W. 771.

The contention of the appellant that the court made no finding as to the deed of May 31st and recorded June 2, 1905, and therefore that deed is not properly before the court, is untenable, as the court finds that the plaintiff is the owner of the property and entitled to its possession, and this finding necessarily includes any deed introduced in and admitted in evidence conveying to the plaintiff the title.

The views herein expressed render unnecessary the consideration or discussion of the nature and character of the plaintiff's possession and the nature and character of the deed from Quinn to the defendant, and also render unnecessary any consideration or discussion of the rulings of the court on the motion for a new trial, based upon the grounds of newly discovered evidence, and the other questions presented by the record in this case.

The judgment of the circuit court and order denying a new trial are affirmed.

DRISKILL et al. v. REBBE et al. (Supreme Court of South Dakota. July 8, 1908.)

1. PLEADING - AMENDMENTS BEFORE TRIALDISCRETION.

The only limitation on the power of the court to permit amendments to pleadings is that an amendment made at, or after, the trial so as to conform to facts proven, or facts in support of which proof is offered, must not change the cause of action or defense, but within reasonable limits any amendment may be permitted before trial, though it changes the cause of action or defense.

[Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 686-709.]

2. WATERS AND WATER COURSES-ACTIONS TO DETERMINE RIGHTS - PLEADING - AMENDMENT.

Where plaintiffs in their original complaint claimed that defendants were only entitled to sufficient water to irrigate 15 acres under a contract pleaded, it was not an improper exercise of discretion for the court before trial to permit plaintiffs to amend the complaint so as to allege that they were owners of a certain water right and were entitled to the amount of water designated in the notices of location therein.

3. PLEADING

· AMENDMENT OF PLEADINGS WAIVER OF OBJECTIONS.

Defendants, by answering an amended complaint without objection, waived their objection to the amendment.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 1408-1412.]

4. APPEAL AND ERROR-FINDINGS-CONFLICTING EVIDENCE-REVIEW.

Findings of fact by the trial court on conflicting evidence will not be set aside on appeal, where the Supreme Court is unable to say that the preponderance of the evidence is against them.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 3983-3989.]

5. WATERS AND WATER COURSES RIGHTS-IRRIGATION-PRIORITY.

WATER

Where the water rights under which plaintiffs claimed title were located prior to any settlement on the lands by defendant's grantors, plaintiffs were entitled to priority, both under Rev. St. §§ 2339, 2340 (U. S. Comp. St. 1901, p. 1437), securing and preserving such priority of location, and under the custom in force in the territory.

Where a deed of trust vested in the trustee no power of sale in case of default, but the beneficiaries were required through the trustee to apply to the court by a bill in equity for a foreclosure decree, the deed was in fact a mortgage constituting only a lien on the property, leaving the title in the grantors.

7. SAME-ACTIONS FOR POSSESSION OF PROP

ERTY-PARTIES-INTEREST.

Plaintiffs were not deprived of the right to sue to protect their alleged water rights appurtenant to certain land by having given a deed of trust thereon, which was in fact a mortgage.

8. EVIDENCE RECORDS - PUBLIC

DUTY OF SETTLEMENT OR ENTRY.

LANDS

Where, in a suit to determine water rights, the decree necessarily fixed the amount to which plaintiffs were entitled as the carrying capacity of a certain ditch and from the excess awarded to defendants 30 inches, and declared that plaintiffs were not entitled to take any water from the source of supply to another ditch until defendants' 30 inches were supplied to her, the decree was not vague and uncertain as to the amount of water plaintiffs were entitled to as against defendants.

Appeal from Circuit Court, Lawrence County.

Action by William D. Driskill and another against Elizabeth Rebbe and others. From a decree for complainants, and from an order denying defendants' motion for a new trial, they appeal. Affirmed.

A. J. Plowman, for appellants. John R. Wilson and Martin & Mason, for respondents.

CORSON, J. This action was instituted by the plaintiffs to restrain the defendants from diverting the waters of Crow creek so as to interfere with the rights of the plaintiffs to the use of the same. Findings and judgment being in favor of the plaintiffs, the defend

ant Elizabeth Rebbe has appealed. The original complaint was drawn upon the theory that there was an existing contract between the defendants Rebbe and wife and the grantors of these plaintiffs whereby the defendants Rebbe had a right to the use of sufficient of the water of Crow creek for the irrigation of 15 acres of their land underlying plaintiffs' ditches. The defendant Rebbe answered, admitting the execution of the contract as alleged in the plaintiffs' complaint, but denied that he had any authority to do so, and alleged that his wife owned the land referred to. The defendant Elizabeth Rebbe answered denying all of the allegations of the complaint. Subsequently and before the trial the plaintiffs obtained leave to file and serve an amended complaint, which was thereupon served and filed. The defendants separately answered the amended complaint without objection thereto. At the beginning of the trial the defendants objected to the introduction of any evidence on the part of the plaintiffs for the reason that the amendment to plaintiffs' complaint entirely changed the character of the action to an action for damages for conversion of water. This objection was overruled, and the appellants contend that the court erred in permitting the plaintiffs to offer evidence under the said amended complaint.

It is contended by the appellants that the amendment is not within the discretion of the court, as it changes the character of the action even though such amendment was made some five months before the trial, and that the amendment in question did change the plaintiffs' cause of action.

It is contended by the respondents that an amendment made prior to the trial may change substantially the claim or defense, and that the only limitation upon the power of the court to allow amendments is that an amendment made at or after the trial so as to conform to facts proven, or facts in support of which proof is offered, must not substantially change the cause of action or defense. We are of the opinion that under the decision made by this court in the case of Murphy v. Plankinton Bank, 18 S. D. 317, 100 N. W. 617, the respondents are right in their contention. In that case after a careful review of the authorities this court reached the conclusion that the limitation prescribed in the statute only applied to amendments made on or after the trial, and hence that an amendment which changed the nature of the action could be made before the trial within reasonable limits. It is true the plaintiffs in their original complaint claimed that the defendants were only entitled to sufficient water to irrigate 15 acres under a contract set out in the complaint, and that in their amended complaint they allege that they are the owners of a certain water right, and are entitled to the amount of water designated in the notices of location therein.

We are unable to perceive in what respect the defendants were injured or prejudiced by the amendment. It is not suggested that any defense of the bar of the statute of limitations would be cut off by the amendment, or that the defendants would be subjected to more expense or inconvenience in proving their defense in case the amendment was allowed than they would in case the original action was dismissed and a new action commenced. It seems to be the policy of our Code to have all matters of litigation determined so far as possible in one action, and the whole theory of the Code is opposed to a multiplicity of actions. We are of the opinion, therefore, that the trial court did not abuse its discretion in permitting the amendment to the complaint. Wolfinger v. Thomas (S. D.) 115 N. W. 100; Levy v. Chittenden, 120 Ind. 40, 22 N. E. 92; Burr v. Mendenhall, 49 Ind. 496. We are of the opinion, also, that the defendants having answered the amended complaint without objection in effect waived any objection thereto. 1 Ency. Plead. & Prac. 573.

The plaintiffs claimed title (1) to the waters of Crow creek by the appropriation and diversion of the waters of said Crow creek and by means of two ditches known as the "Stotts" and "Miller & Mulholland" ditches prior to the settlement upon the lands by the defendant or her grantors, and the ownership of said ditches by them; (2) that for more than 20 years prior to the institution of this action they and their grantors were in sole, continuous, and exclusive possession of, claiming the right to the waters of, Crow creek flowing through said Stotts ditch.

The defendant and appellant claims the right to the waters of Crow creek (1) by reason of the settlement thereon as riparian owners by her grantors, Willis E. Young and Lilly A. Walker, prior to the location of any valid water rights acquired by the grantors of the plaintiffs by means of their said appropriation and diversion of the waters of said Crow creek; (2) that at the time of the appropriation and diversion of the waters of Crow creek by the grantors of the plaintiffs. the said locators of the said water rights were trespassers upon the lands located and claimed by the said Willis W. Young and Lilly A. Walker; (3) that if George W. Stotts located the Stotts ditch water right, he conveyed his interest therein to one of the grantors of the defendant; (4) that the Stotts water right was in fact located by Samuel and John Stotts, who conveyed their interest to the defendant prior to the commencement of this action; (5) that the plaintiffs and their grantors were not in the exclusive, open, and notorious possession of the said so-called Stotts ditch for 20 years prior to the commencement of this action; (6) that the title to the lands located by Willis E. Young and Lilly A. Walker remained in the United States until patents were issued therefor, and that said patents were not is

sued 20 years prior to the commencement of this action; (7) defendant also contends that the court erred in excluding certain evidence and proceedings in the United States Land Office, and to which rulings of the court in excluding the same the defendant duly excepted; (8) that the court's findings of fact, except findings 23 and 24, are not supported by the evidence, and that the court's conclusions from its findings are erroneous, and that the decree of the court is vague and uncertain as to the amount of water the defendant is permitted to take from Crow creek for the purpose of irrigating her said lands.

It will be observed that the principal questions involved in this case are questions of fact as to the priority of the location of the water rights and ditches, under which the plaintiffs claim the waters of said Crow creek and the entries made upon the lands riparian to said creek made by the grantors of the defendant.

The court in its findings of fact, among other things, found, in substance, that on February 20, 1880, Elliel Miller and Thomas Mulholland entered upon the vacant and unoccupied public lands of the United States and made a water right location, claiming the right to divert the waters of Crow creek for irrigation, domestic, and other uses to the extent of 320 inches, miners' measurement, and that they perfected their water right location, and that one-half interest in the same was by means of mesne conveyances vested in the plaintiffs. The court further finds that on the 1st day of February, 1880, one George W. Stotts settled upon a tract of land on Crow creek and that prior thereto the said George W. Stotts, by means of a head gate and ditch connected therewith, diverted the waters of Crow creek for the purpose of irrigating said land for domestic and other purposes, claiming 150 inches of the waters of said creek; that said Stotts perfected his location and irrigated at least 120 acres of his land by means of said ditch and water right, and that in May, 1886, he and his wife conveyed the lands and water right to the grantors of the plaintiffs, and that the grantors of the plaintiffs and the plaintiffs have ever since remained in possession of the water right and ditch. The court further finds that in April, 1880, Willis E. Young, one of the grantors of the defendant, settled upon a tract of land riparian to Crow creek, and that Willis E. Young and wife conveyed the said premises to the defendant Elizabeth Rebbe; that in June, 1880, Lilly A. Walker, one of the grantors of the defendant, settled upon a quarter section of land on Crow creek; that she died in February, 1882; that thereafter, in 1887, a patent was issued to her heirs, and that subsequently in 1892. the defendant became the owner of the same. The court in its findings 23 and 24 finds that Samuel Stotts and John Stotts located what is known as the "Stotts" ditch in 1878, and that prior to

the commencement of this action they conveyed their interest therein to the defendant.

It will thus be seen that the Miller and Mulholland water right, under which the plaintiffs claim title, was located prior to the settlement made upon Crow creek by either Willis E. Young or Lilly A. Walker, the grantors of the defendant, and that the Stotts ditch and water right, as located by George W. Stotts, was located prior to the settlement of either of defendant's grantors. The evidence in regard to the time of these locations of the water rights and the settlements upon the lands by defendant's grantors is sharply conflicting, and this court, after a careful examination of the same, is unable to say that there was a preponderance of evidence in favor of the settlements of the grantors of the defendant, prior to the location of the water rights, under which the plaintiffs claim the right to the said waters of Crow creek.

The evidence is very voluminous, extending over several hundred pages of printed abstract, and no useful purpose would be served in reproducing the same in this opinion, and its reproduction would extend this opinion to an unreasonable length. The rule is too well settled in this jurisdiction to require the citation of authorities that the findings of the court are presumptively correct, and, unless there is a clear preponderance of evidence against the findings of the trial court, such findings will not be disturbed by this court. Assuming therefore that the court's findings are correct and that the water rights, under which the plaintiffs claim title, were located prior to any settlement upon the lands by the grantors of the defendant, the plaintiffs were clearly entitled to a decree in their favor, as under the law as it then existed the right to locate the waters of any creek or water course flowing through the public domain was fully recognized both by law and custom, in force in this territory.

Section 2339 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 1437) provides that: "Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same. And section 2340 (U. S. Comp. St. 1901, p. 1437) provides: "All patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the preceding section."

On Scott v. Toomey, 8 S. D. 639, 67 N. W. 838, after quoting the above sections, this court says: "This has been the law in the Black

Hills country, by custom and the decision of the courts, since February 28, 1877." The rights of the parties must therefore be determined by priority of location as between the water right of the defendant and the pre-emption right of the plaintiffs' grantor. Sturr v. Beck, 6 Dak. 71, 50 N. W. 486; Same v. Same, 133 U. S. 541, 10 Sup. Ct. 350, 33 L. Ed. 761.

The Supreme Court of the United States in Atchison v. Peterson, 20 Wall. (U. S.) 507, 22 L. Ed. 414, in discussing a similar question said: "This equality of right among all the proprietors on the same stream would have been incompatible with any extended diversion of the water by one proprietor. But the government being the sole proprietor of all the public lands, whether bordering on streams or otherwise, there was no occasion for the application of the common-law doctrine of riparian proprietorship with respect to the waters of those streams."

There seems to be a conflict in the findings of the court as to the parties locating the Stotts ditch and the date of this location, but in the view we take of the case this conflict in the findings is not very material, as the court's findings as to the location of the so-called Stotts ditch by Samuel and John Stotts does not definitely find that their location was perfected, or that the waters of Crow creek were duly appropriated by the purported location of the same. We shall therefore assume for the purpose of this decision that the court's findings as to the location of the Stotts ditch by George W. Stotts became vested in the plaintiffs' grantors.

The court concludes as a matter of law "(1) that the plaintiffs are the owners of an undivided one-half interest in the Miller and Mulholland ditch and water right, and are entitled to the prior and exclusive right by reason thereof to divert the waters of Crow creek to the extent necessary and proper for domestic uses, and the irrigation of from one hundred and twenty-five to one hundred and thirty acres of land, not exceeding, however, an undivided one-half of the present capacity of the said Miller and Mulholland ditch, with the right to go upon the lands over and across which the said ditch and headgate are located for the purpose of maintaining and operating the same; (2) that the defendant Elizabeth Rebbe is entitled, as a riparian owner, to divert from the waters of Crow creek, or the springs connected with and adjacent thereto, such water as may remain in said creek after supplying the Miller and Mulholland water right as herein provided, to the extent that may be necessary and proper for the irrigation of her land riparian to said Crow creek, hereinbefore described; but not exceeding in the aggregate more than thirty (30) inches, miner's meas urement, of the said water; (3) that the plaintiffs are owners by prescription of the Stotts ditch and water right, and entitled to