*533Decided 12 November, 1900.
On Motion for Rehearing.
Mr. Justice Mooredelivered the opinion of the court.
7. A petition for a rehearing of this cause having been filed, it is insisted that inasmuch as the complaint does not allege that Mattis claimed any right to the use of the water of Foot’s Creek by appropriation, either by himself or those with whom he was in privity, an error was committed in awarding him, for mining purposes, an undivided one-half of the water diverted from that stream, or flowing from any source into the ditch in question. The plaintiff and the defendant predicate their respective claims to the use of the water upon an adverse right, and neither alleges an appropriation as the foundation of his claim, notwithstanding which the cause was tried upon the theory that Lance appropriated the water of the stream to the irrigation of the land conveyed by him to Hosmer, who took the use of the water as an appurtenant thereto, so that if it had been necessary to allege in the complaint that plaintiff’s predecessor appropriated the water to the beneficial use to which it was applied, and to state the quantity of water thus used, it is now'too late to question its sufficiency on that ground.
8. It is claimed that the appropriation of water can be made for use upon public land only ; that the transcript contains no evidence tending to show that Weare, plaintiff’s predecessor, ever appropriated the water from Foot’s Creek to any use upon government land, and, this being so, no presumption should be indulged to that effect. We think the testimony fairly shows that Weare and Hand, in 1868, were engaged in operating a placer mine on public land at the head of the ditch in question, using water therefrom to extract the gold; that about 1873 Weare made a homestead entry on the land upon *534which he had thus been mining ; and that from 1868 to 1878, when he made final proof of his settlement upon and cultivation of this land, he used the water, as testified’to by George W. Bailey, more or less every year for mining purposes. 'And, these facts having been established by uncontradicted testimony, no necessity exists for. indulging in a presumption that the land upon which Weare mined and thereafter entered under the homestead la;ws of the United States, whereby he secured a title from the government, was, at the time he appropriated the water.thereon, public.
9. The defendant’s counsel, invoking the rule announced in the case of Hindman v. Rizor, 21 Or. 112 (27 Pac. 13), contend that an error was committed in concluding that the transfer from ’Weare to Draper of his interest in the' ditch and' water right was void because it was not evidenced by any writing. The statute in force at the time it is claimed such transfer was made presented the anomalous condition of treating a placer claim as personal property, and providing that it might be granted, sold, and conveyed by bill of sale and delivery of possession, but declaring that ditches used for mining purposes were to be regarded as re'al estate during the time they were used for that purpose, and in their sale and transfer governed by the law applicable to that class of property : Hill’s Ann. Laws, §§ 3833, 3834. The ditch in controversy in the case referred to was used for conducting water from Alder Creek to be used in irrigating government land, and not for mining purposes, and hence the r.ule announced in that case, and followed in Low v. Schuffer, 24 Or. 239 (33 Pac. 678), Nevada Ditch Co. v. Bennett, 30 Or. 59 (60 Am. St. Rep. 777, 45 Pac. 472), and Turner v. Cole, 31 Or. 154 (49 Pac 971), has no application whatever to the case at bar, in, which the evidence conclusively shows that the ditch was constructed, and at *535the time of the alleged transfer was being used, for mining purposes. In the enactment of such statute it was probably assumed that the transfer of a ditch used for mining purposes implied a change in its location, or the appropriation of the water to other premises or to different uses, thereby necessitating a severance of the easement from the servient estate, to accomplish which it was provided that the evidence of such conveyance should be more formal than in cases of the transfer of placer mines, which was effected by a bill of sale or a delivery of the possession, thereby carrying the ditch used in operating the mine as an appurtenant thereto. By giving to the statute such construction, we reached the conclusion that Orme secured an undivided one-half interest in the ditch 'and water right from John Dick and Silas Draper, and that Hosmer succeeded to Orme’s interest therein by securing his possessory right to a tract of public land across which the ditch had been constructed, and to which it was appurtenant. When Orme took possession of the ditch and used the water, he supposed he had secured the entire interest therein; but as he took under Dick and Draper, who, the evidence shows, each had an undivided one-fourth interest therein, he secured no greater interest than they possessed. If it had appeared that Weare had abandoned the ditch, and for a year thereafter failed to exercise ownership over the same, or had removed from the state with intent to change his residence, and remained absent one year, without having exercised any ownership over the ditch or water right, his right thereto would have been deemed lost: Hill’s Ann. Laws, § 3833. The evidence shows, however, that he used the water for mining purposes more or less every year until he conveyed the premises to Mattis, who testifies that Weare informed him that he was the sole owner of the ditch and water right, which passed to him by the deed, as an ap*536purtenant to the land. There is nothing but hearsay evidence to show that Draper ever owned more than an undivided one-fourth interest in the ditch, and it has not been established that he transferred a greater interest to Orme. These considerations compel us to deny the petition. Rehearing Denied.