tion after the date of said lot not effected by said degree. Ansonia vs. Cooper, et al, 64 Conn. 543. The subsequent delivery of a deed by said company covering said lot to E. J. Dick, attorney for said Brown, shows what the intention of the company was, and accords with said ratification resolution. If Ponca City Land and Improvement Company were to institute an action against Brown for the possession of the portion of said lot that he is in the actual possession of, would not said ratification operate as an estoppel at least against said company? Sheehan H. B. Co. vs. Eichmeyer H. B. U. Co., 90 N. Y. 607; McCeady vs. Pearson, 31 Kan. 451. Hence we conclude that the legal title was in the plaintiff, and such title as would entitle him to judgment for possession under defendant had such an agreement with the party in whom was vested the legal title or had authority to act, as would give him a right to enforce specific performance. There is no proof to show that the oral agreement with the Dalton, the vice-president of the company, as construed by the defendant, was ratified acquiesced in such a way as to create an estoppel, by its Board of Directors, which would certainly have been necessary before defendant would be entitled to have such contract performed in equity. Wilson's Revised Statutes, vol. 1, sec. 780; Union Pac. Ry. Co. vs. McAlpine, 129 U. S. 305, L. Ed., 673. The next contention is that at the time of the execution and delivery of the deed from Lynch to Brown and Knapp that Jennings was in such adverse possession of the lot as to render the said deed void. Sec. 2111 of Wilson's Revised statutes, vol. 1, is in haec verba: "Every person who takes any conveyance of any lands or tenements, or of any interest or estate therein, from any person not being in the possession thereof, while such lands or tenements are the subject of controversy, by suit in any court, knowing the pendency of such suit, and that the grantor was not in possession of such lands or tenements, is guilty of a misdemeanor." In this record there is nothing to indicate that Brown and Knapp, or either of them, knew anything of the pendency of such suit. And in the absence of a record of conviction under said section or evidence proving such knowledge of the pendency of such suit, the presumption is that they had no such knowledge. Sec. 2112 of Wilson's Rev. Stat., vol. 1, is as follows: "Every person who buys or sells, or in any manner procures, or makes or takes any promise or covenant to convey any pretended right or title to any lands or tenements, unless the grantors thereof, or the persons making such promise or covenant has been in possession of the same, or of the reversion and remainder thereof, or have taken the rents and profits thereof, for the space of one year before such grant, conveyance, sale, promise or covenant made, is guilty of a misdemeanor." The question arises now as to whether or not Lynch had been in possession of said lot for the space of one year at the time Lynch conveyed to Brown and Knapp. Long-Bell Lumber Co. vs. Martin, 11 Okla 192; Houston vs. Webb decided by this court at this term. Had there been any adverse possession to Lynch and said. company whatever, much less under color of title? x x x the possession of a vendee holding under a parol executed contract of purchase is not adverse to that of this vendor until he has performed the conditions therein or repudiated the latters title." Cyc. vol. 1, p. 1044. The occupancy of said lot by Jennings under his own showing was neither adverse to the company nor to Lynch. Brown vs. Huey, 103 Ga. 448,30 S. E., 430; Kirk vs. Tyler, 8 B. Mon. (Ky.) 267., Gamble vs. Hamilton, 31 Fla. 401, 12 So. 230; Lucas vs. Brooks, 18 Wall. 436, 21 L. Ed., 779; Kirk vs. Smith, 9 Wheat (U. S.) 241, 6 L. Ed., 18; Warvelle on Vendors, vol. 1, p. 201. Verbal permission by the vendor of land to the purchaser, to take possession at anytime is a mere license, revocable at pleasure, so long as the terms of the sale are unfilled. Gault vs. Stormont, 51 Mich. 637. The plaintiff at the time of the institution of this action being vested with title, and defendant's contract not being enforceable either against the company or Lynch to the extent of establishing title in himself, and there being no adverse possession under color of title the judgment of the court below should be affirmed, and it is so ordered. J. D. COLE, Plaintff in Error, VS. MISSOURI, KANSAS & OKLA. R. R. No. 2023. (Supreme Court of the State of Oklahoma.) Filed Feb. 18th, 1908. Error from District Court of Oklahoma County. B. F. Burwell, Trial Judge. Reversed. 1. Where water flows from the lands drained by a watercourse, into the water course, and the water course becomes obstructed by reason of a railway company constructing its roadbed and changing the channel of the water course in such a way that at times of ordinary frechets, the water thus obstructed accumulates until it exceeds the banks of the water course and spreads out over the low lands adjacent to the water course, the water thus accumulated is not surface water. If the water thus obstructed and accumulated Ereks the bounds that confine it and flows on or across the lands of the lower riparian owner in greater volume, with more violence or by a different course or manner than it would if permitted to flow to him in its natur al state, and he is thereby injuried, the railway company is liable in damages for the detriment thus caused. 2. When there is any evidence introduced at the trial of a cause reasonably tending to establish the allegations of plaintiff's petition, it is error for the court to sustain a demurrer to such evidence and render judgment in favor of the defendant. (Syllabus by the Court.) Marshall Fulton Attorney for plaintiff in error. Clifford L. Jackson, John E. DuMars, S. A. Calhoun and Horace Speed. Attorneys for the defendant in error. NOTEWORTHY CRIMINAL CASES. An instruction that de Burton vs. State, (- Ark.-.) Instructions-Self-defense. cedent assaulted the accused with a gun, and accused succeeded in getting hold of it before decedent had an opportunity to discharge it, and accused had reason to believe that he might take the gun from decedent, it was his duty to do all that was reasonable in his power to prevent decedent from shooting him, and, if accused failed to do so and killed deceased, he was guilty of murder in the second degree if he acted with malice, or voluutary manslaughter if he acted without malice, was erroneous because it made the guilt of defendant on the existence of reasonable grounds to believe that he might take away the gun from decedent, regardless of how it appeared to accused or his belief of his power to do so. 2. Same. Where the court charged that, where one is threatened with loss of life, he is compelled to act on appearance, an determine from the circumstances the course to pursue to protect himself, and apparent danger is as effectual for his justification as real danger, an instruction making the guilt or innocence of accused defendant on the existence of reasonable grounds to believe that he might do a certain act to protect himself from decedent, regardless of or how it appeared to accused, or his belief of his power to protect himself, was contradictory of the first instruction, and misleading. Case Reversed and Remanded. 106 S. W. 942. State vs. Vickers, (-Mo.-—.) Venue-Prejudice of Inhabitants.-Evidence in support of an application to change venue for prejudice of inhabitants of the county held insufficient to establish such a prejudice as would prevent defendant from obtaining a fair trial in that county. 2. Same. Evidence.-On an issue of prejudice of inhabitants of a county against accused in support of an application for change of venue, a witness, asked to state the purport of a conversation he had heard with reference to defendants guilt or innocence, should have been permitted to testify that "the sentiment was against the man" and the people highly incensed at the time. 3 Same. Harmless Error.-Where an application. for a change of venue, a witness was permitted to testify that his neighbors said accused was a bad man and came from the West to the county, and was a member of a gang of desperadoes, accused was not prejudiced by the striking of other answers that the people were highly incensed at the time and that the sentiment was against him. 4. Same. Opinion.-On an application for a change of venue because of prejudice of the inhabitants. the court should not have permitted witnesses to testify that defendant could have a fair trial in the county where the offense was committed. 5. Same. Prejudiced.-Accused was not prejudiced by evidence of witness on an application for a change of venue that accused could have a fair trial in the county where the offense was committed; such evidence |