dissenting.
Defendant has appealed from a decree declaring plaintiff to be the owner of a certain canal or irrigating ditch built by him across defendant’s lands-, under an irrevocable license, the right to the uninterrupted use and enjoyment of the same for the purpose of conveying water to his lands for irrigation, and perpetually enjoining defend*195ant from interfering with such ditches. Plaintiff alleged that he obtained from Proffitt and his predecessors in interest the right, consent, permission, and license to excavate, use, and maintain a main ditch, called his “upper ditch,” which, as originally constructed, was 4% feet in width at the top and from 1 % to 3 feet in depth and to use a certain canyon or gulch, leading from his main ditch on the west side of defendant’s land easterly to a lateral or part of the “lower ditch,” first excavated by him, and leading to the S. W. 14 of section 33, an isolated portion of his lands. The decree was in plaintiff’s favor as to the upper ditch, but against him as to the right to use the said canyon or gulch.
The facts appear to be that in 1895 plaintiff owned in Powder River Valley, Union County, about 1,400 acres of dry, arid land, including the N. 14 of section 32 (except the S. E. % the N. E. 14), the S. W. 1/4 of section 33 and the E. 14 and N. E. 14 of N. W. 1/4 of section 31, all in township 5 S., range 39 E., of Willamette Meridian. This land was covered with sagebrush and bunch grass, and without the aid of artificial irrigation would produce little or no crops, but with sufficient water would bring forth abundant crops of hay and grain. The water supply available for irrigating these lands was Wolf Creek, some 12 miles distant from the N. 14 of section 32, and Anthony Creek, about 6 or 8 miles further off. To bring this water to the plaintiff’s lands, it was necessary to cross sections 5 and 6 in township 6 south, lying immediately south of the plaintiff’s, lands. At that time these sections were open, uninclosed lands, apparently a part of the public domain. Plaintiff, not knowing to whom they belonged, if any one besides the State or the United States, for the purpose of bringing this water to his lands, commenced and completed in the fall of 1895 the excavation of about 2*4 miles of ditch, which began upon his own land and *196extended southerly approximately through the middle of section 32, and about to the center of section 5, intending later on to extend the ditch to Wolf Creek, the source of supply. The following spring he began at Wolf Creek, and constructed the ditch towards his place, crossing the south line of section 6, township 6 S., at about the middle of the S. W. % of the S. E. % thereof, and continuing northerly through the E. % of that section; thence in a northeasterly direction to the junction with the piece of ditch first constructed. Because of an erroneous survey, establishing the grade, water would not flow through the part first dug. He therefore dug a new ditch upon a lower grade (which, with its laterals, is known and designated in the record as plaintiff’s “lower ditch”), beginning about three-eighths of a mile north of the center of section 5, and running northerly in the same general direction a short distance to the east of the abandoned ditch. This ditch branched near the center of section 32, one branch extending southeasterly to the S. W. % of section 33, and the other branch extending northerly onto section 32. But, when completed, it was found that the northerly branch was too low to carry water into a large reservoir, constructed by plaintiff at the northwest corner of section 32 for storing water for use after the natural flow had ceased. This could be remedied only by going up the ditch about 2% or 3 miles onto the N. W. *4 of the S. E. i/i, of section 6, and making a diversion from the main ditch at a point near the south line of that 40-acre tract, and meandering thence westerly about a quarter of a mile; thence northeasterly through section 6, and along the section line between sections 5 and 6 and 31 and 32, to plaintiff’s reservoir, the general course of the ditch being upon higher land and around the heads of dry gulches, which extended downward easterly through the defendant’s lands. At and prior to the time plaintiff dug these ditches he was uninformed as to the owner of these lands, *197which were wild and uncultivated, and of the same arid character as plaintiff’s lands. However, before excavating the ditch now in controversy, which is called plaintiff’s “upper ditch,” he learned that one Jesse Failing, then living at Pendleton, some 100 miles distant, was the owner, to whom, in August, 1899, plaintiff wrote a letter, asking him for a right of way for an irrigating ditch across his lands. This letter was not introduced in evidence, but, the nonproduction thereof being explained to the court’s satisfaction, oral testimony of its contents was received. Under date of August 31st Failing answered as follows: “I have just returned after an absence of a month and found your letter of the 19th inst., asking for a right of way through my land in Powder River Valley. Would say, go ahead, the more ditches you build the better it will suit me.” At that time Failing owned, and had owned since 1884, all of section 5, and the E. 1/2 of section 6. His wife, M. C. Failing, owned the S. W. 14 of section 6, all in township 6 south, and Edith Failing, his daughter, owned the S VI of section 32, in township 5 south. Plaintiff received this letter, and thereafter, in the fall of that year, or the spring of 1900, began the excavation of his upper ditch, but dug only about one-quarter of a mile, beginning on the N. W. 14 of S. E. j/j„ section 6, near the middle of the southern boundary thereof, and extended the ditch westerly and southwesterly onto the S. W. 14 of that section. He then ceased digging for the time, allowing the water to flow from the end of the ditch so extended down a natural depression or dry gulch, until it reached the lower level of plaintiff’s former ditch, through which it passed onto his land, where it was used for irrigation purposes. This system was employed without further change until in 1902, in the early part of which year, Jesse Failing contracted to sell these lands, including the lands in his wife’s and daughter’s names, to James Russell and the defendant jointly, who were engaged in the *198butcher business and desired the land for pasturing beef cattle. Before purchasing, these parties visited the land, saw plaintiff’s ditches thereon, but made no inquiry of him as to the extent of his rights. On April 25, 1902, Mrs. Failing and her daughter conveyed their lands to Jesse Failing, and on the same date the latter conveyed his land, and that conveyed to him by his wife and daughter, to Russell and defendant Proffitt. In the month of May following, Russell, who seems to have arranged for the purchase of these lands for himself and defendant, and generally to have been managing their joint business enterprises, visited the premises and rode over the land, in company with plaintiff, for the purpose of viewing the lines between their respective lands. At that time plaintiff explained to Russell the character' and purpose of the ditches, and the failure of the “lower ditch” to accomplish the purpose desired; that he wished to complete the “upper ditch,” so that it would be high enough to deliver the water into the reservoir at the northwest corner of section 32; that he had a right of way from Failing, but had not had time to dig the ditch. Plaintiff testifies that Russell said in response: “I don’t see that it will make any difference any more than the higher up the gulch it is the better it will make the grass.” Russell admits he had such a conversation with defendant. The result of that conversation, however, does not appear, nor could Russell remember whether he afterwards had any conversation with plaintiff. On cross-examination he testifies that, when plaintiff said he had a right of way from Failing, he understood reference was made to the old ditches; that plaintiff wished permission to change the location from the lower to the upper ditch, and would abandon the lower ditches, which witness and his co-tenant could use for irrigating their own land, by making a reservoir a mile or a mile and a half back of their place distinct and separate from plaintiff’s system. The feasibility of this *199plan was suggested to Russell by one Chenault at that time in the employ of Russell and Proffitt, and who was present and took part in the conversation. On redirect examination Russell states that he does not remember whether in the conversation he had with plaintiff in May, plaintiff made the statement that he had a right of way from Failing, but says:
“He (plaintiff) told me later on he had a right from Failing, and he may have told me at that time. I don’t know.”
From this evidence it may be plainly inferred that Russell had two conversations with plaintiff about his right to dig the ditch across defendant’s lands, and that probably one of these conversations was subsequent to the time Russell conveyed to Proffitt the substance of his conversation with plaintiff. The defendant makes no denial that he had a conversation with his co-tenant, Russell, concerning plaintiff’s ditches. Immediately after having purchased the land in 1902, Russell and Proffitt caused the same to be fenced, and thereafter used it for pasturing beef cattle, keeping from 200 to 300 head thereon. On June 8, 1904, Russell sold and conveyed to defendant his interest in the land, which thereafter was occupied and used by defendant for the same purpose. Plaintiff, relying upon his supposed right of way from Failing and the assent of Russell, if not also that of defendant, completed in 1902 his upper ditch to his reservoir, and thereafter conveyed water through the same to his reservoir and lands, irrigating and cultivating something over 600 acres, and at the time this suit was brought his land was highly improved and productive.
It is admitted by the defendant that annually for four or five years prior to 1908, he cut plaintiff’s ditch and took water therefrom for his own use without the consent and against the objections of plaintiff. About the month of July, 1908, when plaintiff’s tenant was irrigating his crop *200on the N. W. *4 of section 33, by taking the water out of the main ditch, on the west line of section 32, and allowing it to run down a dry gulch or canyon to the plaintiff’s lower ditch, thence through the easterly branch thereof to said land, the defendant caused his tenant to take all the water flowing down through the said natural water course and to turn it into a reservoir on his own lands, about the center of the S. % of section 32, which he had constructed, and used for conserving a supply of water for the use of his stock when the water should cease flowing through plaintiff’s ditch in the dry season. Although defendant testifies that he at different times cut plaintiff’s main ditch, allowing the water to flow down on his own lands, not for the purpose of using the water, but for the purpose of disputing the plaintiff’s right to maintain the ditch, we are satisfied the evidence clearly establishes, even by defendant’s own witnesses, that he and Russell, while they were joint tenants, and the defendant afterwards, depended upon the water in plaintiff’s main ditch to supply the stock feeding in his inclosure, and that there was not during the dry season of the year sufficient natural water on the defendant’s lands to supply any considerable part of the needs of his stock, and that before Russell conveyed to the defendant they caused to be constructed on their own land two reservoirs, which from time to time, without plaintiff’s consent, they filled with water by cutting plaintiff’s ditch, and allowing the water to flow down the otherwise dry gulches to such reservoirs, and that they did this for the purpose of being sure of a supply of drinking water for their stock, after the natural flow of water in the irrigating ditches should cease. Prior to 1905, plaintiff procured his supply of water solely from Wolf Creek, but his rights thereto were subject to the prior rights of others, and hence his supply frequently failed as early as July. In that year, still relying upon his supposed *201right to maintain his main ditch on the defendant’s lands, he extended his main ditch from Wolf Creek on to Anthony Creek, a distance of some eight miles, where he procured an additional supply, and thereafter he had water in his ditches sufficient for his needs, until as late as August 25th. Plaintiff’s ditch upon defendant’s land was not so inclosed as to prevent access thereto by the cattle, which, so long as water was flowing in the ditch, were at liberty to drink therefrom. This must necessarily be of considerable benefit to defendant’s pasture lands, and he has profited thereby. We are satisfied such benefit was contemplated by Failing when writing to plaintiff, and by defendant and Russell, when they fenced their land and permitted plaintiff to proceed with the completion of his ditch.
1. It is strenuously urged by defendant’s counsel that, under the pleadings in this case, plaintiff stands on a bare parol license, which he claims to have obtained from the defendant and his predecessors in interest and that, therefore, plaintiff is precluded from obtaining the full effect of his evidence. We do not agree with such restricted interpretation of the language found in the complaint. It is averred that plaintiff obtained the “right” as well as the “consent, permission and license of defendant and his predecessors.” The word “right” denotes, among other things, “property,” “interest,” “power,” “prerogative,” “immunity,” and “privilege,” and in law is most frequently applied to property in its restricted sense. As an enforceable legal right, it means that which one has a legal right to do. 7 Words & Phrases, 6220.
2. It is therefore sufficiently comprehensive in meaning to admit evidence of an easement, or any right legal or equitable, greater than a mere, naked license. It is claimed, however, that there is no evidence other than what would be sufficient to sustain proof of the mere parol license from Jesse Failing as to his own lands, which *202license, not being based on any consideration paid by the licensee, is revocable by the licensor at his pleasure, and was, in fact, revoked by his conveyance of the legal title to Russell and Proffitt: Stevens v. Stevens, 11 Metc. (Mass.) 251 (45 Am. Dec. 203) ; Kamphouse v. Gaffner, 73 Ill. 453; Eckerson v. Crippen, 110 N. Y. 585 (18 N. E. 443: 1 L. R. A. 487). This would be true, it is claimed, even though plaintiff may have expended money and labor in executing the license: Lavery v. Arnold, 36 Or. 84 (57 Pac. 906: 58 Pac. 524) ; Ewing v. Rhea, 37 Or. 583, 586 (62 Pac. 790: 52 L. R. A. 140: 82 Am. St. Rep. 783).
It is further claimed that no license whatever was shown to have been acquired from either Mrs. Failing or her daughter, neither of whom had any knowledge, until this suit was brought, of the receipt of plaintiff’s letter by Mr. Failing, of the answer returned by him, or that plaintiff had, in fact dug any ditches on their land. It was held in the earlier Oregon cases, following the doctrine of the leading case of Rerick v. Kern, 14 Serg. & R. (Pa.) 267 (16 Am. Dec. 497), that a license is irrevocable after the expenditure of money, or the erection of improvements in reliance thereon by the licensee: Curtis v. La Grande Hydraulic Water Co., 20 Or. 34 (23 Pac. 808: 25 Pac. 378: 10 L. R. A. 484) ; McBroom v. Thompson, 25 Or. 559 (37 Pac. 57: 42 Am. St. Rep. 806) ; Garrett v. Bishop, 27 Or. 349 (41 Pac. 10) ; Bowman v. Bowman, 35 Or. 279 (57 Pac. 546). Later cases, however, qualify this rule, by declaring that the license relied -on must be an express agreement, and not a mere passive acquiescence, amounting at most to an implied license, without consideration or benefit inuring to the licensee, and that such passive acquiescence will not raise an estoppel, and that the license may be revoked, if not allowed to stand until the statute of limitations has constituted a bar: Lavery v. Arnold, 36 Or. 84 (57 Pac. 906: 58 Pac. 524) ; Hallock v. Suitor, 37 Or. 9 (60 Pac. 384) ; *203Ewing v. Rhea, 37 Or. 583 (62 Pac. 790: 52 L. R. A. 140: 82 Am. St. Rep. 783), overruling on this point: Curtis v. La Grande Hydraulic Water Co., 20 Or. 34 (23 Pac. 808: 25 Pac. 378: 10 L. R. A. 484) ; McPhee v. Kelsey, 44 Or. 193 (74 Pac. 401: 75 Pac. 713) ; Bolter v. Garrett, 44 Or. 304 (75 Pac. 142). It was held in Lavery v. Arnold, 36 Or. 84 (57 Pac. 906: 58 Pac. 524), although not necessary to the decision of the case, that a license to be irrevocable must result from some consideration paid by the licensee, or some benefit accruing to the licensor. This case was cited with approval in Ewing v. Rhea, 37 Or. 583 (62 Pac. 790: 52 L. R. A. 140: 82 Am. St. Rep. 783), and in Bolter v. Garrett, 44 Or. 304 (75 Pac. 142). In at least two of the case holding licenses to be irrevocable the decision seems to have been based mainly on the fact that' a benefit by way of payment or other advantage had accrued to the licensor: Baldock v. Atwood, 21 Or. 73 (26 Pac. 1058) ; McPhee v. Kelsey, 44 Or. 193 (74 Pac. 401: 75 Pac. 713).
3. In the case at bar, however, the correspondence between plaintiff and Failing, antedating the construction of the main ditch, amounts to something more than a mere parol license. It will be remembered that plaintiff requested of Failing “a right of way” for an irrigating ditch across his lands. A right of way is an easement of perpetual use, a charge or burden upon the land of one for the benefit of another. 34 Cyc. 1767; Blake v. Boye, 38 Colo. 55 (88 Pac. 470: 8 L. R. A. (N. S.) 418).
4. That is what the parties must have had in contemplation, and understood, when they used the term in dealing with each other. Failing, by his answer, clearly conveyed to plaintiff his intention to grant him a right of way, although nothing was expressly said about a deed or conveyance, for he uses the term “right of way” in his letter, and assents to plaintiff’s request by *204telling him to “Go ahead. The more ditches you build, the better it will suit me.” We think, also, that his letter shows that Failing made this promise, contemplating that he would receive sufficient benefit from the construction of the ditch to justify the granting of the right of way without payment or other consideration. He anticipated that his land would be benefited by the construction of the ditches, and that was the consideration for which he impliedly promised to grant a right of way; for, when testifying for the plaintiff, he says that he considered the ditch proposed to be dug a benefit to the land, and on cross-examination, when asked by defendant’s counsel whether Shaw paid him any consideration for going across his land with the ditch, he answered: “No; if there had been any consideration, it would have been the other way I think.”
5. The consideration necessary to support a contract to grant an easement or an irrevocable license is not confined to something paid by the licensee or grantee, but includes some benefit accruing to the licensor: Baldock v. Atwood, 21 Or. 73 (26 Pac. 1058) ; McPhee v. Kelsey, 44 Or. 193 (74 Pac. 401: 75 Pac. 713) ; Lavery v. Arnold 36 Or. 84 (57 Pac. 906: 58 Pac. 524).
In his argument defendant’s counsel has closely followed the reasoning of Mr. Farnham in his valuable work on Waters and Water Rights. We find at page 2335, volume 3, thereof, this statement of the law:
“If the expenditures are made for the benefit of or at the request of the licensor, there is a sufficient consideration to form a contract, so that, if it is partly executed, equity will compel its complete performance. And, if the improvement is for the benefit of the licensor, or if it is undertaken at his solicitation, so that the licensee can be regarded as having made the expenditure at his request, there will be sufficient consideration to uphold the contract.”
*205In support of this declaration, the learned author cites the facts and the law as held in Southwestern R. Co. v. Mitchell, 69 Ga. 114. In that case a landowner gave a parol license to another to erect a milldam on and overflow a part of his land, in view of benefiting his own estate, and it was held that, after the licensee had expended large sums of money in the execution of the license, and had built a dam and mill, useless without the right to flow the land, the licensor could not revoke and annul the license at will or without any remuneration. See, also, Adams v. Patrick, 30 Vt. 516, and Hodgson v. Jeffries, 52 Ind. 334, and other cases cited in footnote number five to the above quotation from Mr. Farnham. The case from Indiana, last above cited, appears to be specially in point to the case at bar. A parol license was given by a landowner to the owner of adjoining land to construct and perpetually use a ditch over the former’s land to a natural stream in consideration of the benefits to his land from drainage, upon the faith of which the adjoining owner constructed such ditch, and a system of lateral ditches on his own land leading thereto, and used the same for many years with the knowledge and consent of the licensor. It was held that the license was irrevocable by the grantee of the licensor, although unforeseen injuries resulted from the construction of the ditch to the land of the servient estate.
6. It is claimed that Mrs. Failing and her daughter, Edith, were not bound by the agreement of Mr. Failing to give or grant a right of way, and therefore the license did not attach to the land of either. Perhaps they were not personally bound, but it is not material to consider them at all. This agreement was binding on Mr. Failing, who was dealing with the land standing in the names of his wife and daughter, as owner of such lands. At the time of the negotiations, plaintiff understood Mr. Failing was the owner of all the lands, and the latter testifies that *206when he used the words “my land,” in the letter addressed to plaintiff, he meant all the land then standing in the names of his wife and daughter, as well as that standing in his own name, because he had been looking after and controlling all of the land,- and he after-wards dealt with it as his own by contracting to sell, and did sell, their land as his own, but, before consummating such sale, the title thereto was vested absolutely in him, and it then became subject to his personal contract with plaintiff. Before the title became vested in defendant Proffitt and his co-tenant, Russell, plaintiff had dug about one-fourth of a mile of his main ditch, mostly on the land which Failing then owned, but partly on the land then standing in his wife’s name.
7. If we should consider the agreement between Failing and plaintiff to be a parol contract merely, then there was sufficient part performance to vest in plaintiff an equitable right, entitling him to proceed with the completion of the ditch, and to maintain it for the uses contemplated in the original agreement.
8. The attitude of Russell and defendant Proffitt towards plaintiff, and his right to construct and maintain the ditch, while they held the title to the land in common, and of Proffitt, after he became the sole owner, tends to confirm plaintiff’s rights as we have adjudged them. At no time did they attempt to deny his'right to construct the ditch or to maintain and use it, nor did they, by any notice to cease flowing water through it, or not to enter upon defendant’s premises to repair such ditch, attempt to revoke what defendant now insists was a mere license, although it is now argued that it was revoked by the conveyance of the title to them. On the contrary, the evidence shows that plaintiff was requested by the defendant and his employees to repair the ditch, and at one time assistance was rendered by one of defendant’s employees to plaintiff in repairing the ditch, *207although it is said that this was done without defendant’s knowledge, but it was afterwards brought to his notice. The only fair inference that can be drawn from the defendant’s acts, regarding the use and maintenance of this ditch, is that he and his co-tenant, Russell, were at all times willing that plaintiff should spend his money and labor in digging this ditch, and in bringing water therein some sixteen or seventeen miles to and across their lands, but assumed the right to take water therefrom, and to interrupt plaintiff’s use thereof, wherever and at whatever time they might wish, and apply it to their own use, upon their own land, even for a time to the taking of all. There is no law or equitable rule justifying such summary action by the defendant, even had the plaintiff only a revocable license. Plaintiff’s title to the water flowing in the ditch could not be, and was not, disputed by the defendant, although the right to maintain the ditch might have been, for the water had been segregated by plaintiff from the general supply, was impounded in his ditch, and was intended to be appropriated to his own use. It was under his control and had become his property. 2 Farnham, Waters and Water Rights, § 462, p. 1568.
9. The defendant’s answer admits the cutting of the ditch and the taking of the water, but denies that any such acts were wrongful or without right. There is no plea or evidence of a previous revocation, and the acts of the defendant in thus appropriating plaintiff’s property was clearly a trespass, which the defendant expressly manifests his intention to continue, and should therefore be enjoined from the continuance of such invasion. However, we are clearly of the opinion that the correspondence between plaintiff and defendant’s predecessors in interest amounts to an agreement in writing, based on sufficient consideration to grant a right of way for the ditch; that it was executed by plaintiff, without objection *208being made by defendant; and that the latter has. received the consideration contemplated in the making of the agreement, and cannot now, under any view of the case, rightfully object to the maintenance and use of the ditch.
The decree is, therefore affirmed. Affirmed.