Opinion of the Court-Belknap, J. the theory of facts which will support the ruling of the district court, and we must, therefore, assume that no water was lost to the plaintiff by the flume company's diversion. If this be so, why should the flume company have been a party to the litigation? The suit was brought upon the hypothesis that defendants had interrupted plaintiff's enjoyment of the waters of the creek. The object in making the flume company a party to the suit was to show that the grievances complained of were produced by its, instead of defendant's, diversion of the waters. But, as the diversion by the flume company did not diminish the volume of water at plaintiff's land, his failure to receive water could not. have been attributable to its acts. It was not, therefore, a necessary party to the suit. Defendants conceded upon the trial that plaintiff' was the owner, in his own right, of a portion of the land described in the complaint. Other tracts of land were conveyed to him immediately prior to the commencement of this suit by grantors claiming to have acquired rights, by appropriation, to the waters of the creek, in connection with their ownership of the land. There was an oral agreement between grantors and grantee that upon the termination of the litigation the lands should be reconveyed to the grantors, respectively. Upon these facts appellant contends that plaintiff, as to the lands so conveyed, and the water rights appurtenant thereto, is not the real party in interest. The objection is founded upon the provision of the civil practice act (sec. 1067, Comp. Laws), which requires that "every action shall be prosecuted in the name of the real party in interest. * * If the transactions between the plaintiff and his grantors created any trust, it was an express trust, and the trustee of an express trust may sue without joining with him the person or persons for whose benefit the action is prosecuted. But the evidence introduced at the trial was incompetent to establish an express trust. Section 55 of the act concerning conveyances, requires such a trust to be established by deed or conveyance in writing. The statute is as follows: "No estate or interest in lands, Opinion of the Court-Belknap, J. other than for leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by his lawful agent thereunto authorized in writing." (Sec. 283, Comp. Laws.) Again, the objection may be satisfactorily decided upon the ground that the pleadings do not tender the issue whether the plaintiff holds the property in his own right or that of another. True, the answer denies the plaintiff's ownership, but it does not set forth a state of facts requiring the district court to exercise its equitable jurisdiction, and examine into the relations of trust existing between the plaintiff and his grantors. This suit is founded upon the legal title, and when plaintiff showed that title to be in himself, he fully answered the issue of ownership presented, and there was no necessity for further evidence upon that point. The next point made is based upon the delay of the district court in making additional findings of facts. The findings and decree were entered upon the thirty-first day of July. Upon the fifth day of August following, appellant requested the court to make certain additional findings. The record recites the fact that upon the said fifth day of August the court failed and refused to make any additional findings, and thereupon appellants filed their exceptions to the action of the court. Afterwards and upon the fifteenth day of August the court made its findings upon the issues covered by the exceptions. It is claimed that the court erred in failing to make the additional findings within the time required by law. The statute relating to defective and insufficient findings provides: "Sec. 1669. In cases tried by the court without a jury, no judgment shall be reversed for want of a finding, or for a defective finding, of the facts, unless exceptions be made in the court below to the findings, or to the want of a finding; and in case of a defective finding, the particular de VOL. XVIII-20 Opinion of the Court-Belknap, J. fects shall be specifically and particularly designated; and upon failure of the court to remedy the alleged error, the party moving shall be entitled to his exceptions, and the same shall be settled by the judge as in other cases; provided, that such exceptions to the finding, or want of a finding, shall be filed in the court within five days after the making of the finding or decision to which exception is made. The exceptions required to be filed in the court within five days are the exceptions of the party dissatisfied with the findings. Thereafter the court may "remedy the alleged error," but it will be observed that the statute does not prescribe the time within which the court must act. If any error could have occurred in this regard, the defendants could not have been prejudiced thereby, as all of the additional findings were favorable to them. Appellant assigns as error the failure of the district court to award defendant Logan the right to use sufficient water to irrigate the twenty-acre tract of land heretofore referred to. Plaintiff Smith and defendant Logan each endeavored to purchase this tract from the railroad company. In the year 1880 the company entered into a contract of sale with Logan. Prior thereto Smith had occupied and irrigated the land, and appellant now claims that the waters of the stream had become appurtenant to the land, and went with it when Smith lost and Logan acquired it. We cannot admit this claim. Smith, as to the true owner of the land, Logan has not connected himself with Smith's right to the use of the water, and he could have changed its use to other lands. was a trespasser. Objection is made to the apportionment of the waters of the stream established by the decree. The findings show that from the year 1861 until 1867 inclusive, Logan irrigated from ten to thirty-five acres of land. During the years 1868, 1869 and 1870 he made no use of the waters, and in 1871 and 1872 he irrigated but five acres. During these five years plaintiff and his predecessors in interest used the waters of the creek under Argument for Appellant. their appropriations adversely to Logan. They, therefore, acquired the right to so much of the waters appropriated by Logan as he failed to use during the period limited by the statute of limitations. But Logan did not lose his right to all of the waters appropriated by him, because in 1871 he resumed possession of sufficient water to irrigate five acres of land and thereafter maintained it. The decree fails to preserve this right to Logan under his appropriation in 1861 and it must be modified accordingly. The cause must, therefore, be remanded to the district court with instructions to modify its decree in this respect. It is so ordered. Appellant to recover his costs upon appeal. [No. 1159.] CHARLES SACALARIS, RESPONDENT, v. EUREKA AND PALISADE RAILROAD COMPANY, APPELLANT. AGENTS RAILWAY CORPORATIONS JUDICIAL NOTICE OF AUTHORITY-RECEIPT OF CORDWOOD.-Courts will take judicial notice of the authority of the managing agents of a railroad corporation, and, in the absence of any evidence upon the subject, will presume that its superintendent is empowered to conduct its ordinary business transactions, such as the reception of cordwood. IDEM.-An agent having the oversight and charge, with the power to direct, has a general and discretionary power within the scope of his agency. IDEM-DECLARATIONS OF AGENT-WHEN ADMISSIBLE.-Declarations of an agent made in the course of the transaction out of which the action arose are admissible in evidence against his principal. CONFLICT OF EVIDENCE.-Where the evidence, in regard to a fact in issue, is conflicting, it is the duty of the jury to decide such fact, and the court will not interfere with their determination of it. APPEAL from the District Court of the Sixth Judicial District, Eureka County. The facts are sufficiently stated in the opinion. Wren & Cheney, for Appellant: I. The evidence is sufficient to justify a verdict for plaint Argument for Appellant. iff. Paquin was the agent of Sacalaris, with authority to sell the wood in controversy. Sacalaris, by permitting Paquin to take possession of the wood and haul it to Eureka, with power to sell an unmarked, and, to third persons, undistinguishable half, and by knowingly permitting and authorizing him to sell and dispose of a half, with knowledge that the whole was being placed upon the ground of a party to whom Paquin was delivering and selling his portion, and at a place where the whole was being sent for the purposes of sale, and at a time and place where the defendant was buying and receiving wood from Paquin, so clothed Paquin with the indicia of ownership and apparent authority to sell and dispose of the whole of the wood, that defendant had the right to believe that Paquin was the owner of the whole of the wood, or had full power as agent to sell it. Plaintiff by his conduct clothed Paquin with implied authority to sell the wood in controversy to the defendant, notwithstanding any secret instructions or understanding that may have been given or had between plaintiff and Paquin, the rule being that where one has clothed another with the indicia of ownership and permitted him to assume the control of property with the apparent power of sale, the apparent authority is the real authority, and the person so holding out another as having authority is bound by the acts of the agent within the scope of the authority which the principal by his acts or silence has warranted third persons in believing the agent possesses. (Wright v. Solomon, 19 Cal. 64; Saltus v. Everett, 20 Wend. 267; Thompson v. Blanchard, 4 Comst. N. Y. 303; Gass v. Hampton, 16 Nev. 185; Rice v. Groffman, 56 Mo. 434; Stone v. Marye, 14 Nev. 362; Lumley v. Corbett, 18 Cal. 494; Hostler v. Hayes, 3 Cal. 302; Dunning v. Roberts, 35 Barb. 467; Bridenbecker v. Lowell, 32 Barb. 9; Johnson v. Jones, 4 Barb. 369, 373; Calias Steamboat Co. v. Van Pelt, 2 Black. U. S. 372; Pickering v. Busk, 15 East R. 38, 43; Gregg v. Wells, 10 Ad. & E. 90; Dyer v. Pearson, 3 Barn. & Cres. 38, 42; Storey on Agency, 93, 127, 136.) Plaintiff is estopped from denying that Paquin had authority to sell |