ment for defendants, plaintiff appeals. Affirmed.

This is an action in ejectment to recover possession of certain described real property, being, as stated in the complaint, "inclosed by a boom for catching and holding logs, and timber, and lying and being in the navigable water of the Coquille river in front of lot 2 in section 7, and lots 6 and 7 in section 18, all in township 28, south of range 12, west of Willamette river, and known as the 'Gilman Boom.'" The answer denies plaintiff's alleged ownership of the fee and right to the possession thereof, and avers that defendants are the owners, and of what their title consists, and that they are entitled to the possession. Upon a trial being had, a verdict was rendered in favor of defendants, upon which judgment was entered, and from which plaintiff appeals.

Walter Sinclair, for appellant. A. J. Sherwood, for respondents.

SLATER, C. (after stating the facts as above). At the close of the testimony plaintiff moved for a directed verdict in his favor, which was denied by the court, and this is assigned as the principal error upon which a reversal of the judgment is sought. Plaintiff was not able to show any paper title in itself, but relied upon title by adverse possession, not only as against defendants, but as against the state. But there are two reasons why it cannot maintain its position in this action: (1) Because it is estopped from denying that defendants' grantors ever had any right to construct and maintain a boom abutting upon their property, or to grant such right to another; and (2) because whatever right, if any, it has therein, or to the possession thereof, is not such a title or right that could be the basis of an action in ejectment. The premises, the possession of which is sought to be recovered, are, as stated in the complaint, the bed of the Coquille river, a navigable stream, the title to which is prima facie in the state. Bowlby v. Shively, 22 Or. 410, 30 Pac. 154; Hume v. Rogue River Packing Co. (Or.) 92 Pac. 1065. Plaintiff deraigns such title as it has from one James A. Lyons, who, it claims, built the boom in 1889, and that ever since then, and to at least 1903, he and his successors in interest occupied, used, and maintained an open, notorious, and exclusive possession thereof under a claim of ownership, so that the fee-simple title to the bed of the stream became divested out of the state and lodged in Lyons. But the record shows that, at and prior to the construction of the boom, John Gilman was the owner, by mesne conveyance from Wm. P. Bushnell, of 143.20 acres of land, which was patented to him by the general government on December 20, 1869. This land abutted upon the Coquille river, adjacent to and opposite the location of the boom, and it is admitted in the pleadings that the river

at that point is a navigable stream, and by virtue of the act of October 21, 1876, of the legislative assembly of this state (Sess. Laws 1876, p. 69) Gilman's title was extended to low-water mark. On October 10, 1889, Gilman executed, in favor of A. J. Smith, an instrument termed a "lease," which purports to grant to the latter "the right and privilege of putting in and maintaining a boom for holding logs and timber along the line of the premises of the said Gilman where the same adjoins the Coquille river in Coos county, state of Oregon, being along the river front, and is to be built and constructed so as to do as little injury to the bank as practicable and to the approval of Albert Gilman." As a consideration therefor, Smith agreed to pay the tax thereafter levied and assessed on the land of the said Gilman, which he then owned, and which adjoins said Coquille river where said privilege of putting in a boom was granted. It was further stipulated in the agreement that, in case Smith, his heirs, executors, administrators, or assigns shall fail to pay such tax and allow the same to become delinquent, then the agreement and the privilege of maintaining the boom shall cease and determine. In the fall of 1889 Smith and Lyons constructed a boom in the river adjacent to and along the shore of Gilman's land, by driving piling into the bed of the river, about 120 to 130 feet from the bank and parallel therewith, in sets or dolphins of three piles, at considerable distances apart. These dolphins were joined by logs or boom sticks fastened to them by means of cleats. The upper and lower ends of the boom were joined to the bank or shore by logs attached to piling driven in the shore at about low-water mark, the bank forming one side of the inclosure. It is shown that Smith and Lyons used this boom for the purposes for which it was designed until July 19, 1894, when Smith assigned to Lyons this instrument, termed in the assignment an "agreement" or "lease," as well as all his interest thereunder. Lyons and his successors in interest continued in the use and possession of the boom, claiming to own it, until in the year 1902, when William Jess, who had succeeded to all the rights of Gilman in the abutting lands, conveyed a one-half interest therein to defendant Johnson, who thereafter took from Jess a lease of the remaining one-half interest in the boom and claiming that, by failure of Smith and his assigns to pay the taxes upon the land, the lease to Smith was subject to annulment, Johnson took possession of the boom in 1903, and thereafter excluded plaintiff from the occupation and use thereof. Hence this action to recover from Johnson the possession of the boom.

The first question to be determined is, What right, if any, has a riparian owner to con struct, in navigable water adjacent to his property, a boom to store logs, and is such right assignable? Plaintiff claims that the riparian owner has no such right, and relies

to some extent upon a statement made by us in the opinion in Hume v. Rogue River Packing Co. (Or.) 92 Pac. 1065, recently decided, to the effect that the owner of upland bordering upon navigable water has no title in the adjoining lands below high-water mark, nor any rights in or over the adjoining waters as appurtenant thereto. But that statement was confined to the rights of an upland owner, as distinguished from a tideland owner or one who owns to low-water mark, which was Gilman's situation. But "riparian owners upon navigable fresh rivers and lakes may construct, in the shoal water in front of their land, wharves, piers, landings, and booms, in aid of and not obstructing navigation. This is a riparian right, being dependent upon title to the bank, and not upon title to the bed of the river. Its exercise may be regulated or prohibited by the state; but, so long as not prohibited, it is a private right, derived from a passive or implied license by the public. As it does not depend upon title to the soil under water, it is equally valid in those states in which the river beds are held to be public property and in those states in which they are held to belong to the riparian proprietors usque ad filum aquæ." 2 Gould on Waters (2d Ed.) § 179; Montgomery v. Shaver, 40 Or. 244, 66 Pac, 923; Stevens Point Boom Co. v. Reilly, 44 Wis. 295; River Co. v. Patterson, 98 U. S. 403, 25 L. Ed. 206. Such right, however, is a mere franchise (2 Gould, § 179), and is distinguished from appropriation and occupation of the soil under the water. Deidrich v. N. W. N. Ry. Co., 42 Wis. 248, 24 Am. Rep. 399. It is not personal to the shore owner, so that it must be exercised by him alone, or not at all, but is the subject of grant, and may be severed from the soil. Montgomery v. Shaver, 40 Or. 244, 66 Pac. 923. No statute has ever been enacted by this state, at least none has been brought to our attention, regulating or prohibiting the construction and operation of booms; and hence, on October 10, 1889, Gilman, the shore owner, possessed this right, which he might lawfully grant to another. Smith and Lyons having constructed the boom under a license from Gilman, they and their privies are thereafter estopped from denying his right, or that of any one claiming under him. And when a tenancy is once shown to exist, in order to set the statute of limitations running in favor of the tenant desiring to avail himself of it, to acquire title by adverse possession he must openly and explicitly disclaim and disavow any and all holding under his former landlord; and, further, he must unreservedly and steadily assert that he himself is the owner of the true title, all of which must be brought home to the knowledge of the rightful owner. Nessley v. Ladd, 29 Or. 354, 45 Pac. 904. Neither of these necessary things has plaintiff attempted to show. On the contrary, the record discloses that for a number of years Lyons paid Gilman's taxes in accordance with

the original agreement, and in the chain of its title each transfer is of the Gilman boom privilege, a distinct recognition of the original right under which the boom was built. Nor has there been any showing made by plaintiff, that, while it and its predecessors in interest were in possession of the boom, any claim was made, by any of them, of an ownership adverse either to Gilman and his grantees, respecting a right to maintain the boom, or to the state in respect to the soil under the water. It is true it has shown possession of the boom, "but it is not possession alone, but the possession accompanied with the claim of the fee, that gives this effect, by construction of law, to the acts of the party. Possession, per se, evidences no more than the mere act of present occupation by right, for the law will not presume a wrong; and that possession is just as consistent with a present interest, under a lease for years or for life, as in fee. From the very nature of the case, therefore, it must depend upon the collateral circumstances what is the quality and extent of the interest claimed by the party; and to that extent, and that only, will the presumption of law go in his favor." Rickord v. Williams, 20 U. S. 59-105, 5 L. Ed. 398. Now the proof that plaintiff and its predecessors in interest, while using and occupying this boom, claimed to own it is not inconsistent with the fact that it was built and operated under a license from the shore owner, for it was not a boom already constructed and ready for use that Gilman leased to Smith, but a license to build a boom at a particular place, adjacent and abutting upon his shore. Smith and Lyons did in fact own the boom, but maintained it by license of the owner of the abutting property. Plaintiff has indeed shown possession of the boom and a claim of ownership thereof, but nothing independent of such possession which is qualified by their own acts and declarations. Nor is such claim adverse to the ownership by the state of the fee to the bed of the stream. As we have shown, the inception of this claim was under a license by the shore owner, whose right is subordinate to the paramount ownership of the fee by the state. The two rights exist together, not in antagonism to one another, but one is superior to the other; and a shore owner, or one by his license occupying and using a portion of a navigable stream adjacent to the shore for booming logs, must be presumed to do so under his riparian right, and not as one claiming to be the owner of the bed of the stream. Until it is shown, then, that one owning and operating a boom for holding and storing logs in front of the property of a shore owner has explicitly and openly disclaimed any and all holding under the presumed riparian right, and has unequivocally asserted ownership of the bed of the stream, and brought some notice to the state of that claim, the statute could not begin to run against it so as to divest it of its title, if indeed in any event it

could be divested of the title to the bed of a navigable stream by adverse possession, which has recently been doubted by this court. Trullinger v. Howe (Or.) 97 Pac. 548.

This conclusion reduces the matter attempted to be litigated to the right to the continued enjoyment of a franchise, granted by an abutting owner to another, to operate a boom in a navigable stream adjacent to his property, which right, as a thing distinguished from appropriation and occupation of the soil under the water, is an incorporeal hereditament, for the possession of which an action in ejectment will not lie. 15 Cyc. 16; Parker v. West Coast Packing Co., 17 Or. 510, 21 Pac. 822, 5 L. R. A. 61.

This conclusion renders it unnecessary that we should consider any of the other errors assigned, and calls for an affirmation of the judgment.

(52 Or. 572)

STATE v. HORSEMAN. (Supreme Court of Oregon. Nov. 24, 1908.) 1. CRIMINAL LAW (§ 423*)—EVIDENCE—ACTS OF CONSPIRATORS.

When the fact of a conspiracy has been established, the acts and declarations of one conspirator in furtherance of, or made with reference to, the common design, are admissible in evidence against his associates.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 989; Dec. Dig. § 423.*] 2. HOMICIDE (§ 190*)-EVIDENCE-SELF-DETHREATS-ADMISSIBILITY-REASON

FENSE

FOR.

Evidence of threats is relevant because it tends to illustrate the feeling of the person killed, injured, or alleged to have been making an attack on accused, and proof of the communication of the menace is admissible in a prosecution for the homicide or for the assault, for that it serves to show that the defendant, being aware of such feeling, was justified in action with reference to it.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 399-413; Dec. Dig. § 190.*] 3. HOMICIDE (§ 187*) — EVIDENCE-Self-DeFENSE-THREATS BY A THIRD PERSON.

In a prosecution for homicide, in which it was shown that the killing occurred after an altercation in which defendant was severely beaten by deceased in the presence of a third person, and while deceased and the third person were advancing upon the defendant in a threatening manner, evidence of threats by the third person at a previous time, which had been communicated to the defendant before the killing, is admissible on the issue of self-defense, though no conspiracy was proven between the deceased and the third person.

[Ed. Note. For other cases, see Homicide, Dec. Dig. § 187.*]

Appeal from Circuit Court, Umatilla County; H. J. Bean, Judge.

George L. Horseman was convicted of manslaughter, and appeals. Reversed, and new trial ordered.

James H. Raley and James A. Fee, for appellant. G. W. Phelps, Dist. Atty., and A. M. Crawford, Atty. Gen., for the State.

MOORE, J. The defendant, George L. Horseman, was convicted of the crime of manslaughter, alleged to have been commited in Umatilla county, May 11, 1907, by shooting at and killing Clarence McBroom, and he appeals from the judgment which followed. His counsel assert that the killing was done in self-defense, and contend that errors were committed in refusing to receive evidence of threats made against Horseman's life by William Curtwright, who, at the time of the homicide, was also advancing, it is maintained, in a threatening manner towards and near the defendant; and in refusing to charge, as requested, in relation to such threats and to the concert of action.

As tending to show a mutuality of purpose on the part of McBroom and Curtwright to molest the defendant, it is deemed essential to state with some degree of particularity the latter's theory of the case as developed by him and his witnesses at the trial. The testimony shows that in December, 1906, pursuant to a written request from the county judge of Umatilla county, the defendant notified McBroom to remove some of his wire fencing which had fallen in the public highway. Because Horseman was not the road supervisor, this request made McBroom very angry, and he applied to the defendant vile and opprobrious epithets, ordered him to get off the horse he was riding, and threatened to beat him. Horseman rode away, and McBroom, mounting a horse, followed him about 75 yards, when he met Curtwright, to whom he, referring to the defendant, said: "If you will go with me, I will catch him, pull him off his horse, and beat him to death." The next day, while the defendant was watering stock near a fence, he heard a horse coming, and, looking up, saw McBroom, who, with an oath and vile words, said, "I have got you now," and, dismounting, he approached the fence, but was prevented from climbing over it by demonstrations made by Horseman with a pocketknife. McBroom then got upon his horse and rode away, saying he would kill the defendant, and soon thereafter Curtwright passed the place carrying a rifle. From that time until the homicide, whenever Horseman saw McBroom passing along the highway, he avoided him.

The defendant and nearly all the witnesses who appeared at the trial herein are stock raisers, and at a meeting of men engaged in that business, held at Heppner in February, 1907, to secure from an agent of the general government permission to pasture stock on a forest reserve, Curtwright, in the presence of others, made threats against Horseman, the language of which was not permitted to be given in evidence, on the ground that no conspiracy had been established between him and McBroom; but, for the purpose of showing Curtwright's hostility as a witness, the court allowed testimony

to be introduced to the effect that he had made threats as asserted. The defendant's counsel thereupon stated that, if the witnesses were permitted to answer the questions propounded to them, they would testify that at the Heppner meeting, in which Horseman took an active part, Curtwright said in their presence: "If my cattle do not go on that range, it is Horseman that is to blame for it, and he will never see the Potts again"-meaning thereby the neighborhood near which the defendant lived. This offer was rejected, and an exception saved. The threat so imputed to Curtwright was communicated to the defendant prior to the homicide. Horseman circulated a petition in the vicinity of the Potts, calling a meeting to be held at the Gurdane schoolhouse, May 11, 1907, for the purpose of employing men to ride after and care for their stock that season, and of dividing the range between the stock and the sheepmen. McBroom, on March 28, 1907, in conversing with George Taylor, had said of Horseman, "I will kill the son of a b before the summer is over with," and about the same time had told Frank Hinkle that he was going to whip the defendant. On May 10th of that year, he informed Anthony Corley that he expected to attend the stock raisers' meeting, to be held the following day, and then, referring to Horseman, said: "I am going to give him a licking and a Gd d- -d good one." It does not appear that either of these threats was communicated to the defendant before the shooting.

McBroom lived on a homestead about a half of a mile northeast of the schoolhouse mentioned, and Curtwright, whose brother married a sister of McBroom, lived near the latter. McBroom and Curtwright on May 11, 1907, passed the schoolhouse at an early hour, and went southwesterly, to the homes of Daniel Hicks and of James Hall, who were McBroom's brothers-in-law, and these four men went in company across the fields to the schoolhouse, to attend the meeting. The defendant reached the place of assembly prior to their arrival, however, and, the morning being cool, he assisted in building a fire in the stove. Thereafter he went outside of the building, the door of which is in the east end, and, as he was shaking hands with a neighbor, he was, without any notice or warning, struck a violent blow under the ear by a person whom he found out to be McBroom, who, with Curtwright, Hicks, and Hall, came around the southeast corner of the house. Horseman is past middle life, and at the time of the encounter was ill, while McBroom was only 23 years old, weighed about 180 pounds, and was quite vigorous. McBroom severely bit the defendant's thumb, struck him in the face with his fists, threw him, and continued the castigation. Horseman, at the beginning of the attack, and repeatedly while it was in progress, urged the men who witnessed it to take Mc

Broom away, and one of them attempted to comply with the request, but was prevented from doing so by Hall, who said of his brother-in-law, "Let him beat him up awhile." Finally, one of the men present said to Hall, in referring to McBroom, “If you don't take him off, I'll kick him off," and thereupon Hall told his brother-in-law to get up, which order he obeyed. The injury inflicted upon Horseman was two teeth knocked loose, his lip nearly cut in two, his nose slightly broken, his thumb and hand lacerated, and a contusion made on his back in the region of his kidneys, as a result of which, on several occasions immediately thereafter, he passed bloody urine. After the attack, McBroom went into the schoolhouse, and, while Horseman was washing the blood from the bruises on his face, Curtwright walked back and forth behind the de fendant, abusing and cursing him-calling him all kinds of vile and opprobrious names— and, referring to the beating which he had received, said: "You

you haven't got half what you will get." He further observed that, if he caught the defendant driving his cattle again, he would never drive any other person's stock. McBroom remained in the building about 10 minutes, when discovering that in the encounter he had lost a pocketknife, he went outside to look for it. He and Curtwright, each cursing and abusing Horseman, advanced toward him, one on the right and the other on the left, when Curtwright, alluding to a weapon which he knew the defendant carried, said, "You Gd dd son of a b- I will shove that gun up you," and McBroom, alluding to the firearm, remarked, "I will make you eat it." As they advanced, Curtwright assumed a threatening attitude, and it appeared, as detailed by a witness, that he was going to attack the defendant, who then stepped back two or three paces and told them to stay away from him. McBroom, as another wit`ness declared, acted as if he were going to make a run upon the defendant. At that time McBroom had his hand in his pocket, and, as he attempted to withdraw it, Horseman, fearing from the severe beating which he had received, and from the threats of his assailants which had been communicated to him, that his life was in danger, fired at and immediately killed McBroom.

The foregoing is believed to be a fair synopsis of the material testimony illustrating the defendant's theory of the case. The evidence offered by the state, however, tended to show that, after the first encounter, as McBroom was leaving the school grounds for his home, Horseman, smarting under the punishment which he had received, and instigated by the taunts as to his cowardliness in respect to the use of a deadly weapon, drew his gun and pointed it at McBroom's back, whereupon Hicks, observing the movement, shouted to the defendant: "Don't do that, George! Don't do that!" Upon hear

ing which McBroom turned toward Horseman just in time to receive the shot in the face.

The defendant's counsel requested the court to give the following instructions: "In determining whether the defendant acted as a reaonable man, and whether he had reasonable ground to apprehend death or great bodily harm at the hands of the deceased at the time he fired, I instruct you: You have a right to take into consideration the threats made by (Curtwright and) the deceased, if any, against the defendant [and communicated to the defendant], the assault made upon him by the deceased, the language, attitude, and bearing of (Curtwright and) McBroom at the time the shot was fired, and all the other facts and circumstances known to, (or) [and] believed by, the defendant at that time, touching the danger in which he believed himself at that time to be placed. Mere threats will not justify a killing in self-defense, and if the jury find from the evidence that (both Curtwright and) McBroom had made threats against the life of the defendant prior to the shooting of the deceased, and you further find that these threats had been communicated to the defendant, and if you further find that (at the time of the killing McBroom and Curtwright were acting together, and that) McBroom, a short time prior to the killing, had made a violent assault upon the defendant, and that (they were) [he was] using violent, abusive, and threatening language towards the defendant, but the evidence leaves the jury in doubt as to what the acts of the deceased were at the instant the shot was fired, or as to what the defendant might properly apprehend in respect to the intentions of the deceased, the jury are entitled to consider the threats in connection with other evidence in determining what apprehension might reasonably arise in the mind of the defendant from the conduct of the deceased (and what the motive of the deceased and of Curtwright was in making the attack, if any)." The court declined to give the requested charges, but, striking out the words included within the parentheses, and inserting those contained in the brackets, as above indicated, instructed the jury in the language as revised, and an exception was reserved. The court, by eliminating from the requested instuctions all reference to the threats imputed to Curtwright and to the conduct attributed to him that might be directed against or injurious to Horseman, pursued the order of practice adopted when evidence of the threats, alleged to have been made at Heppner, were first sought to be introduced, basing its action on the doctrine that the testimony offered did not establish a conspiracy between Curtwright and McBroom to molest the defendant. As the exceptions thus taken practically present but one question, the action of the court complained of will be treated as a single alleged error.

The legal principle which the court evidently invoked in the case at bar finds expression in the following language: "When the fact of a conspiracy has been proved or established by reasonable inference, the acts and declarations of one conspirator in furtherance of, or made with reference to, the common design, are admissible in evidence against his associates." 6 Am. & Eng. Ency. Law (2d Ed.) 866. If the purpose of producing testimony relating to the threats alleged to have been made by Curtwright at Heppner against the life of Horseman was to impute such menace to McBroom, so as to justify shooting him, upon his making a hostile demonstration towards the defendant, in the absence of Curtwright, the action of the court in excluding the evidence offered, and in refusing to charge the jury as requested, might be upheld. We do not understand that evidence of the threats alleged to have been made at Heppner was put forward for that purpose, but solely to explain Curtwright's animus in making advances in a threatening attitude towards Horseman, and to ascertain, if possible, the reasonable apprehension which the defendant entertained when he, with knowledge of such threats, saw Curtwright approaching. Evidence of threats is relevant, because it tends to illustrate the feeling towards the defendant of the person killed, injured, or alleged to have been making an attack upon the accused, and proof of the communication of the menace is admissible in a prosecution for the homicide or for the assault, for that it serves to show that the defendant, being aware of such feeling, was justified in acting with reference to it. State v. Nelson, 68 Kan. 566, 75 Pac. 505, 1 Am. & Eng. Ann. Cas. 468.

It is possible Curtwright knew, when he went to the schoolhouse' on the day of the homicide, that Horseman was to be punished severely, because, assuming to act as road supervisor, he requested McBroom to remove his wire fencing from the public highway. The latter was not alone at the time he was shot; nor was he, so far as disclosed by the testimony herein, acting for, or as the agent of, Curtwright, so as to require any proof whatever of a conspiracy existing between them before evidence of the threats alleged to have been made by Curtwright was admissible. Curtwright was not the agent of McBroom, but a principal acting for himself when advancing in a threatening manner upon the defendant at the time the fatal shot was fired, and, if Curtwright had been the victim, his communicated threats, made against the defendant, would unquestionably have been admissible in evidence so as to discover, if possible, the latter's reasonable apprehensions when he saw his adversary approaching. It may be that Curtwright was a conspirator and had agreed to aid McBroom in administering to Horseman a violent chas