10. Although an appropriator of water upon government lands retains his right when the land passes into private ownership, under Stat. at L. 253, 16 Stat. at L. 218, and may

Voters and elections; construction of ballot change the point of diversion to another place, law; marking on ballots.

228

By husband on land held by entireties. 309 WATERS. See also ESTOPPEL, 3; MANDA MUS; MUNICIPAL CORPORATIONS, 11-13; STATE, 1, 2.

he cannot make such change arbitrarily, but only when required to enable him to take the amount of water to which he is entitled, and then, under Cal. Civ. Code, § 1412, only when others are not injured by the change.

Id.

11. The provision in the act of Congress of or damage, in the construction of a ditch or July 26, 1866, that a party committing injury public domain, shall be liable to the party incanal, to the possession of any settler on the jured, does not grant any rights to enter on the possession of a homestead claimant for the diversion of water already appropriated. Mo purpose of materially changing the point of Guire v. Brown (Cal.)

384

1. A riparian proprietor has no right to go upon another's land, and restore to the old channel the water which has been suddenly diverted by the act of God so as to flow else. 12. The privilege of changing the point of where. Wholey v. Caldwell (Cal.) 820 diversion of water to which a right has been 2. A grant by a riparian proprietor of land obtained by prior appropriation, under Cal. bordering on the stream below that retained Civ. Code, § 1412, does not extend to materiby him, and of the "waters accustomed to flow ally changing the point of diversion and makin the stream," will not entitle the grantee to going new ditches on land lawfully held under a homestead claim. upon the grantor's land to return to the stream waters suddenly diverted by an extraordinary freshet. Id.

Id.

13. The prior appropriator of water has no right to enter upon the homestead claim of a settler, for the purpose of materially changing the point of diversion and constructing new waterways through the land, although the settler has not made final proof of residence and cultivation, or obtained a patent to the land, but has made an entry and has actual posses

sion.

Abandonment.

Id.

15. The rights of the locators of a ditch for

irrigation, to the use of waste water after supplying prior appropriators, are lost by permitting the exclusive possession, management, and beneficial use of the waste water ditch to be en

6. The operation of a flouring mill is one of joyed during the season of irrigation, for more the purposes for which water can be appropri- than the statutory period of limitation, as part ated under the customary law of mining of an older system, without any use of water regions, adopted by the act of Congress of therefrom by such locators except what is dis Id.tributed to them by virtue of their ownership of shares in the older ditch. Hewett v. Story (C. C. App. 9th C.)

1866.

7. An appropriator of water upon the public domain acquires, under the confirmatory acts of Congress, no rights superior to the riparian rights which have attached to land held at the time of the appropriation in private ownership. Hargrave v. Cook (Cal.)

390

17. Rights in a ditch location lost by nonuser cannot be reasserted so as to acquire any right therein, except by continued and adverse use for the statutory period of prescription or by a new and valid appropriation.

Public supply.

Id.

18. Rules adopted by a water company with respect to its service must be lawful and just and free from discrimination, in order to be valid and enforceable. American Waterworks Co. v. State, Walker (Neb.) 447 19. A private corporation supplying water to a municipality under a franchise is affected with a public use and assumes a public duty. which is to furnish all the inhabitants with water at reasonable rates and without unjust discrimination. Id. 20. A rule of a water company to make a charge of $1 in addition to all back rents for turning the water off and on, made a condition

1. An inadvertent mistake by a witness to a will, in writing testator's surname with his own initials when attempting to sign his name under a statute requiring witnesses to the will. as a witness, makes his signature insufficient Re Walker's Estate (Cal.)

460

2. The right to "attest by his mark provided he can swear to the same," given to a subscribing witness to a will by Ga. Code, § 2415, does his mark at the time the will is offered for not depend on his ability to swear to or identify precedent to turning on the water after a per-attest by his mark as one of the competent witprobate, but such a witness is competent to

son has become in default for water rents, is unreasonable, discriminatory, and void, since compensation for turning off and on the water is included in the water rents.

ld.

21. The imposition of water rents by a mu nicipal corporation for the use of water does not show that the waterworks system is operated by the corporation in its private corporate character, but is only a mode of taxation and part of the general scheme of raising revenue to carry on the work of government. Springfield F. & M. Ins. Co. v. Keeseville (N. 660

NOTES AND BRIEFS.

nesses required by § 2414, if he is under no legal disability to testify as a witness. Gillis v. Gillis (Ga.)

143

3. Any competent witness, although not a subscribing witness to a will, may testify to will or the testator's capacity, if the subscribfacts as to the attestation or execution of the ing witnesses deny these facts or, from want of memory or other cause, are unable or unId. willing to testify thereto.

4. A moiety of a residuary estate descends to testator's heirs on the death, during bis life, of one of two persons to whom the residue is given in equal shares. Robinson's Appeal

Waters; appropriation of percolating waters (Me.) on public lands. 186

Abandonment or loss of rights of prior appropriators of:-In general; effect of nonuser; attempt to change use; abandonment prevented by use; decisions under statutes. 265

Change of use or channel of water appropriated:-In general; rights subsequently vested cannot be infringed; priority not lost by change; right may be sold; right to change mill location.

NOTES AND Briefs.

384

Right of prior appropriation of water:-(I.) Right at common law; (II.) right under special statutes or customs: (a) mill acts; (b) cus toms: (1) general doctrine in mining states; (2) source of right of appropriation; (3) against whom available; (4) extent and limitation of right; (5) for what purpose appropriation permissible; (6) who may be an appropriator; (7) what is an appropriation and when complete; (8) determination of priority; (9) interference with and protection of right; (10) second appropriation; (11) riparian rights; (12) statutes affecting: (13) transmission of right; (c) act of Congress of 1866; (d) statutes abolishing ripa rian rights. 665

Rights in water of stream as affected by act of God or natural change of course. 820 30 L. R. A.

NOTES AND BRIEFS.

Wills; mistake in signature to.
WITNESSES. See also WILLS, 3.

331

400

The trial judge may, in the exercise of his discretion, interrogate witnesses to aid in eliciting material matter suggested by the evidence. DeFord v. Painter (Okla.)

722

NOTES AND BRIEFS. Witnesses; husband and wife as, in action 529 for wife's libel or slander. WRIT AND PROCESS.

1. Jurisdiction of an infant defendant may be acquired by the service of summons in the same manner as upon defendants who are sui juris. Levystein v. O'Brien (Ala.)

707