WATCHES. § 44. Though the right of a riparian proprietor or an appropriator of water for irrigation is Liability of innkeeper for loss, see Innkeepers, limited to use for a beneficial purpose, he may § 11. WATERS AND WATER COURSES. See Drains. increase the use required to irrigate his land.-Redwater Land & Canal Co. v. Reed (S. D.) 702. $48. Where a riparian proprietor's date of settlement was earlier than plaintiff's appropriation, the proprietor's priority of right to use the water was not affected by the fact that priation.-Redwater Land & Canal Co. v. Reed (S. D.) 702. I. APPROPRIATION OF RIGHTS IN his actual use was later than plaintiff's approPUBLIC LANDS. § 18. Riparian rights of a pre-emptor attach as of the date of settlement, and not as of the date of patent.-Lone Tree Ditch Co. v. Cyclone Ditch Co. (S. D.) 596. § 23. Riparian rights vested by entry on public land prior to the enactment of the water right law of 1881 (Laws Dak. 1881, c. 142) held not taken away or destroyed by that act.-Lone Tree Ditch Co. v. Cyclone Ditch Co. (S. D.) 596. II. NATURAL WATER COURSES. (A) Riparian Rights in General. $40. The riparian law recognizes no riparian rights as gained through prior settlement or appropriation.-Lone Tree Ditch Co. v. Cyclone Ditch Co. (S. D.) 596. § 40. Owners of land who can connect their title to a settlement made prior to plaintiff's water right appropriation held entitled to use all the water required for domestic purposes, and for the proper irrigation of all their cultivable riparian land, as against plaintiff.-Redwater Land & Canal Co. v. Reed (S. D.) 702. § 40. Riparian rights depend on location of land, and not on the method employed to use the water.-Redwater Land & Canal Co. v. Reed (S. D.) 702. $ 40. Riparian rights exist by relation from the date of the settlement of the land.-Redwater Land & Canal Co. v. Reed (S. D.) 702. § 40. Where a riparian owner entered on Indian land, and was residing thereon when it was opened for settlement, his riparian rights dated from that event.-Redwater Land & Canal Co. v. Reed (S. D.) 702. § 42. Rights of riparian owners to the use of water for ordinary and for artificial purposes, stated.-Lone Tree Ditch Co. v. Cyclone Ditch Co. (S. D.) 596. § 44. A riparian owner at common law was entitled to use the water for irrigation as well as for domestic purposes.-Lone Tree Ditch Co. v. Cyclone Ditch Co. (S. D.) 596. 44. The amount of water that a riparian owner may be entitled to for irrigation varies according to the volume of water in the stream, the amount of land that has been settled upon, etc.Lone Tree Ditch Co. v. Cyclone Ditch Co. (S. D.) 596. § 44. A riparian proprietor under Civ. Code, § 278, held not bound as against lower riparian proprietors to divert water for irrigation within his own land; the point of diversion being immaterial as long as more water was not taken than he was entitled to use.-Redwater Land & Canal Co. v. Reed (S. D.) 702. VIII. ARTIFICIAL PONDS, RESERVOIRS, AND CHANNELS, DAMS, AND FLOWAGE. § 160. A town acquiring a prescriptive right to a highway by user along the bank of a river held to acquire it concurrently with the right to the use of the river for power purposes.-Town of Lawrence v. American Writing Paper Co. (Wis.) 440. § 160. A town which had recognized the right of one to maintain a power dam in a river held not entitled to enjoin a purchaser of the dam from maintaining and using it in substantially the same condition.-Town of Lawrence v. American Writing Paper Co. (Wis.) 440. § 162. Where flowage rights are established, such right, nor interfere or meddle with the terthe owner of the servient estate cannot impair ritory so as to diminish its capacity for storage. Lepper v. Wisconsin Sugar Co. (Wis.) 54. $167. An owner of a water power held entitled to use during the whole year the stream and the banks below ordinary high-water mark, subject to a reasonable use thereof by other owners of power and of riparian rights.-Town of Lawrence v. American Writing Paper Co. (Wis.) 440. § 172. A dam must be sufficiently strong to § 44. A riparian right to use water for ir- resist, not only ordinary freshets, but extraorrigation is limited to riparian land and to the dinary floods which may reasonably be anticiactual needs of the proprietor thereof.-Red-pated.-City Water Power Co. v. City of Fergus water Land & Canal Co. v. Reed (S. D.) 702. § 44. In a suit to determine water rights, the decree should not award the parties entitled to priority a specified number of inches of water, but should provide that they were entitled to such a quantity as would properly irrigate the crops then growing and would serve domestic purposes.-Redwater Land & Canal Co. v. Reed (S. D.) 702. Falls (Minn.) 817. § 176. An owner of a water power in a river held not liable for damages to a highway along a bank of the river.-Town of Lawrence V. American Writing Paper Co. (Wis.) 440. § 179. In action for injuries caused by breaking of defendant's dam, plaintiff must allege negligence on defendant's part.-City Water Power Co. v. City of Fergus Falls (Minn.) 817. § 179. In an action to restrain the owners of a milldam from maintaining it and increasing its height, thereby overflowing plaintiff's land, evidence held insufficient to establish that the damage to the land was caused by defendant's act.-Steufer v. West Point Milling Co. (Neb.) 508. $179. Injunction to restrain owners of milldam from increasing its height will be denied where it is doubtful whether such height was the cause of the injury to plaintiff or not. Steufer v. West Point Milling Co. (Neb.) 508. IX. PUBLIC WATER SUPPLY. (A) Domestic and Municipal Purposes. $ 200. A city held not estopped to assert the invalidity of an ordinance.-Antigo Water Co. v. City of Antigo (Wis.) 888. § 203. In an action by a water company against a city for hydrant rentals, burden of proof held to be upon the company throughout the trial to establish its claim by a preponderance of evidence.-Antigo Water Co. v. City of Antigo (Wis.) 888. $203. Under an ordinance embracing a contract between a city and a water company and providing for hydrant rental, held a condition precedent to the recovery of such rental, that the company show a compliance with a certain test required.-Antigo Water Co. v. City of Antigo (Wis.) 888. (B) Irrigation and Other Agricultural Purposes. Certiorari to review filing of petition for license to appropriate water for irrigation, see Certiorari, § 27. Mandamus to compel supply of water, see Mandamus, § 133. § 230. An innocent holder for value of bonds of an irrigation district delivered as a consideration for the sale of an uncompleted ditch by another corporation to the district held, under certain facts, authorized to enforce payment thereof.-Wyman v. Searle (Neb.) 801. § 230. Authority given directors of an irrigation district by Laws 1895, c. 70, § 10 (Comp. St. 1897, c. 93a, art. 3, § 10), to exchange its bonds at par for work on irrigation ditches, etc., held not limited by section 14.Wyman v. Searle (Neb.) 801. § 230. Laws 1895, c. 70, § 59 et seq., (Comp. St. 1897, c. 93a. art. 3, § 59 et seq.), providing for the confirmation of proceedings for issuing bonds of irrigation districts, does not authorize the court to confirm the exchange of such bonds for property.-Wyman v. Searle (Neb.) 801. § 231. An owner of land in an irrigation district held not estopped from denying illegality of taxes levied thereon to pay for an irrigation ditch.-Wyman v. Searle (Neb.) 801. § 231. Mistake of a treasurer in accepting payment for taxes not authorized by Laws 1895 c. 70, § 19 (Comp. St. 1897, c. 93a, art. 3, § 19), nor by Laws 1899, c. 78, § 1. amending the previous section, held not to deprive the public of its right to collect such taxes, and such payment not to subrogate the tax purchaser to the rights of the district.-Wyman v. Searle (Neb.) 801. $231. Prior to Act March 31, 1899 (Laws 1899, c. 78), § 2, amending Comp. St. 1897. c. 93a, art. 3, c. 70, § 24 (Laws 1895, c. 70, § 24), held, that directors of an irrigation district could not obligate the district to pay for construction work until they had first created a construction fund.-Wyman v. Searle (Neb.) 801. $238. An irrigation company held a mutual irrigation company within Cobbey's Ann. St. 1909. § 6845.-Swanger v. Porter (Neb.) 516. I. NATURE AND EXTENT OF TESTAMENTARY POWER. Restrictions on creation of perpetuities, see Perpetuities. II. TESTAMENTARY CAPACITY. Competency of physician as witness as to testamentary capacity, see Witnesses, § 211. Opinion evidence as to mental capacity, see Evidence, § 471, 501. $ 50. To be competent to make a will, a testator should possess a mind capable of exercising judgment and of understanding the consequences of his actions.-In re Walker's Will (Iowa) 386. § 50. "Mental competency" in a will contest held to include ability of testatrix to understand the meaning and effect of the residuary clause of the will.-Cooper v. Harlow (Mich.) 259. § 52. The presumption is that a testator was of sound mind; but, if this be overthrown by evidence, the burden of proving testamentary capacity is on the proponent of the will.-In re Walker's Will (Iowa) 386. § 53. Evidence that a son received nothing for caring for his father's property was competent as tending to rebut inferences from the father's declarations that his son would use up all the property before his death.-In re Walker's Will (Iowa) 386. § 53. In a suit involving testamentary ca pacity, evidence that the testator had offered to transfer his property to his son in return for | undue influence and testamentary capacity.care and support is competent.-In re Walker's Cooper v. Harlow (Mich.) 259. Will (Iowa) 386. $ 53. Opinion evidence based on conversations only a few years prior to the making of a will is admissible in a suit which involves testamentary capacity.-In re Walker's Will (Iowa) 386. $53. Where it appeared that testator had suffered from senile dementia for several years, evidence of his incapacity to realize the value of notes held admissible, although the transaction occurred four years before the making of the will.-In re Walker's Will (Iowa) 386. $53. On an issue of testamentary capacity, it was proper to show the age, physical and mental condition of testatrix.-Cooper v. Harlow (Mich.) 259. $53. In a will contest, evidence of the financial condition and health of certain excluded cousins of testatrix, held inadmissible on issue of testamentary capacity.-Cooper v. Harlow (Mich.) 259. $324. The weight of a presumption of undue influence by a beneficiary making a will for testatrix was for the jury.-Cooper v. Harlow (Mich.) 259. § 324. In a will contest, evidence held to justify the withdrawal of the issue of undue influence from the jury.-In re Du Bois (Mich.) 1092. $329. A request to charge that the jury should not consider the provisions of a will standing alone as tending to show undue influence or fraud by proponent held properly refused.-Cooper v. Harlow (Mich.) 259. § 329. In a will contest, an instruction on undue influence held objectionable for failure to charge that if the jury was not convinced that the provisions of the will favorable to proponent were the result of fraudulent contrivance or undue influence, and if testatrix was competent, it should be allowed.-Cooper v. Harlow (Mich.) 259. § 332. Nature and scope of testamentary ca § 53. In an action to contest a will for want of testamentary capacity, it was error to ex-pacity stated.-Auld v. Cathro (N. D.) 1025. clude evidence to prove that reasons existed known to testatrix for making no other provision than she did for certain of her nephews. -Cooper v. Harlow (Mich.) 259. § 53. In an action to contest a will for want of testamentary capacity, evidence that testatrix's nephew had intended to study hypnotism to hypnotize her to make a will in his favor held properly excluded.-Cooper v. Harlow (Mich.) 259. IV. REQUISITES AND VALIDITY. (F) Mistake, Undue Influence, and Fraud. Admissions as to undue influence, see Evidence, § 201. $155. Undue influence in the execution of a will may be exerted to prevent the detection of fraud, and may amount to fraud, if strong enough to secure the provisions desired.-Cooper v. Harlow (Mich.) 259. § 164. In a will contest, evidence of the financial condition and health of certain excluded cousins of testatrix held inadmissible on issue of undue influence.-Cooper v. Harlow (Mich.) 259. § 164. In an action to contest a will for undue influence, it was error to exclude evidence to prove that reasons existed known to testatrix for making no other provision than she did for certain of her nephews.-Cooper v. Harlow (Mich.) 259. $164. In an action to contest a will for undue influence, evidence that testatrix's nephew had intended to study hypnotism to hypotize her to make a will in his favor held properly excluded.-Cooper v. Harlow (Mich.) 259. § 164. On an issue of undue influence, it was proper to show the age, physical and mental condition of testatrix.-Cooper v. Harlow (Mich.) 239. V. PROBATE, ESTABLISHMENT, (E) Jurisdiction, Limitations, and Laches. (H) Evidence. VI. CONSTRUCTION. (A) General Rules. ered from the will, when its language is plain § 440. The intent of testator must be gathand unambiguous.-In re Moor's Estate (Mich.) 198. $440. The intention of testator held required to be gathered from the whole will taken together.-Maxcy v. City of Oshkosh (Wis.) 899. § 441. A will must be interpreted as far as possible from the standpoint of testator, and the attendant circumstances ought to be considered when the language of the will is not plain.Maxcy v. City of Oshkosh (Wis.) 899. $446. Where a will is reasonably susceptible of two constructions, one of which will defeat and the other sustain it, the doubt will be resolved in favor of the construction which will give effect to the will.-Maxcy v. City of Oshkosh (Wis.) 899. $487. Testimony of the condition of the parties and of declarations of testator held inadmissible, when his intention can be determined from the words of the will.-In re Moor's Estate (Mich.) 198. (E) Nature of Estates and Interests Cre ated. § 616. A will construed, and held to vest in testator's wife an estate for life only.-In re Moor's Estate (Mich.) 198. (H) Estates in Trust and Powers. Creation of powers in general, see Powers, § 10. Management and disposal of trust property in general, see Trusts, §§ 206-236. Restrictions on creation of perpetuities, see Perpetuities. $ 680. A testamentary trust held valid.Ward v. Ward (Mich.) 761. § 689. Testator devising a life estate held authorized to grant a power to sell subject to the order of the court.-Hamilton v. Hamilton (Iowa) 380. § 691. Where a power is given by will, the rules governing the construction of wills are applied, and the intent of testator controls. Cross-examination of proponent, see Witnesses, Hamilton v. Hamilton (Iowa) 380. § 275. § 693. A devise for life with power to sell, (I) Hearing or Trial. transfer, and dispose of the real estate held to $324. In a will contest, evidence held to give the devisee the right to mortgage the proprequire submission to the jury of the issues oferty.-Hamilton v. Hamilton (Iowa) 380. 8693. A devise with power to sell held to | Testimony of accomplices, see Criminal Law, § give to the devisee the right to sell without first 511. obtaining the consent of the court.-Hamilton v. Hamilton (Iowa) 380. I. ATTENDANCE, PRODUCTION OF PENSATION. Absence of witness, ground for continuance, see Fees as items of costs, see Costs, § 184. § 21. A witness failing to obey a subpoena held guilty of contempt under Code, §§ 4664, 4665, though the subpoena was not read to him, where he expressly waived such reading.Coutts v. District Court in and for Poweshiek County (Iowa) 362. § 21. Guilt of one charged with contempt in failing to obey a subpoena held not affected by the validity of an unverified return.-Coutts v. District Court in and for Poweshiek County $749. An action to require devisees and leg-|(Iowa) 362. atees in a will to convey the property described to plaintiff is premature if brought before probate of will.-Brown v. Webster (Neb.) 635. (C) Advancements, Ademption, Satisfaction, and Lapse. Advancements to heirs and distributees, see Descent and Distribution, §§ 99-109. (D) Election. $782. A wife, to whom her husband's will gave all his real estate so long as she should remain his widow, held not required, under the statute then in force, to elect between her distributive share of the real estate and the provision of the will.-Archer v. Barnes (Iowa) 969. § 792. Under a devise to a wife of all her husband's real estate to be held as long as she should remain his widow, her use of the property, leasing it, and receiving the rents thereof for more than 25 years, held not inconsistent with her right to a distributive share therein, so as to prevent her from asserting it.-Archer v. Barnes (Iowa) 969. § 21. In proceedings for contempt against a witness for disobeying a subpoena, an affidavit showing the nature of the transaction held not necessary under Code, § 4464.-Coutts v. District Court in and for Poweshiek County (Iowa) 362. § 28. A county surveyor testifying as to results of a survey and examination of a prior survey held entitled to additional compensation under Code, § 4661.-Keller v. Harrison (Iowa) 851. 91. Testimony of Parties or Persons In terested, for or against Representatives, Survivors, or Successors in Title or Interest of Persons Deceased or Incompetent. § 793. As expressly provided by Code 1873, § 2452, a widow's share cannot be affected by Admissibility of depositions, see Depositions, § her husband's will unless she consents thereto in six months after notice to her of its provisions by other parties interested in the_estate and such consent is recorded.-Archer v. Barnes (Iowa) 969. § 800. A wife, who accepted the provision of her husband's will giving her all his real estate so long as she should remain his widow, and for many years managed the estate and enjoyed the rents and profits thereof without claiming her distributive share, held not estopped from claiming it; no one having been misled to his prejudice.-Archer v. Barnes (Iowa) 969. WIRES. § 141. Under Comp. Laws, 8 10,212, as amended by Pub. Acts 1901, No. 239, the husband of one suing an administratrix and heirs to subject land of decedent to a trust held not competent to testify to an agreement made by him, as agent for the wife, with decedent.Brown v. Brown (Mich.) 196. § 166. Under Comp. Laws, § 10,212, one suing an administratrix and heirs to subject land of decedent to a trust held not competent to testify to matters equally within the knowledge of decedent.-Brown v. Brown (Mich.) 196. Of electric light or power companies, see Elec- deceased person, against whose estate a claim tricity. § 166. The rule excluding testimony concerning matters equally within the knowledge of a is sought to be established, does not apply to matters arising after his death out of which the claim arose.-Linton v. Howard (Mich.) 793. (D) Confidential Relations and Privileged Communications. § 188. A self-incriminating letter written by accused to his wife, but not received by her, held not privileged.-People v. Dunnigan (Mica. 180. since deceased and her attorney held privileged § 198. Communications between the donor and inadmissible as between the donee and the donor's administrator on the issue of the validity of the gift.-Dickson v. Bills (Wis.) 868. § 211. A physician held a competent witness as to testamentary capacity of his patient, despite Code, § 4608, which provides that com munications between physician and patient are privileged. In re Walker's Will (Iowa) 386. (A) In General. § 328. It was not error to exclude a question $211. In a will contest case, testimony and whether witness had not mistaken the exploopinion of decedent's attending physician as to sion of an automobile engine muffler or tire for her mental capacity, based on information de-a revolver report, and whether he had known of rived from her statement, held properly exclud- other people making like mistakes.-Hedger v. ed, under Rev. Codes 1905, § 7304, subd. 3.-State (Wis.) 80. Auld v. Cathro (N. D.) 1025. III. EXAMINATION. Of expert witnesses, see Evidence, § 558. Of nonexpert witnesses as to opinions, see Evidence, 501. Review of rulings, see Appeal and Error, $8 971, 1048. (A) Taking Testimony in General. Abuse of discretion in examination by court as ground for new trial, see Criminal Law, 8 918. $237. The allowance of answers to questions which assume facts not proved is discretionary with trial judges.-State v. Empting (N. D.) 1119. $240. Question to a witness whether stories told by testator were reasonably connected stories held not objectionable as leading.-In re Du Bois (Mich.) 1092. $ 240. The allowance of answers to leading questions is discretionary with trial judges.State v. Empting (N. D.) 1119. § 255. A witness held entitled to refer to memoranda made by him at the time of the matters testified to.-State v. Hassan (Iowa) 960. § 330. The extent to which a party may be interrogated as to matters not relevant, to affect his credibility, rests in the discretion of the trial court.-State v. McCoy (Minn.) 465. ас (B) Character and Conduct of Witness. $337. Matters held properly shown on cused's cross-examination as affecting his credibility.-Parb v. State (Wis.) 65. (D) Inconsistent Statements by Witness. $ 388. Rights of a party as a witness on crossexamination, stated where it is sought to lay a foundation for impeachment.-Blair v. Kingman Implement Co. (Neb.) 632. § 396. In an action for rape, held proper to ask witness whether she had ever been a witness in a trial before.-Smith v. Hendrix (Iowa) 360. (E) Contradiction and Corroboration of Corroboration of testimony of accomplices, see § 414. The time-table of a carrier held inadmissible as bearing on the credibility of its ticket agent.-Hayes v. Wabash R. Co. (Mich.) 217. WOMEN. Act limiting hours of employment of females as WOODS AND FORESTS. $ 268. The court held authorized in its discretion to permit cross-examination of accused as to the nature of the libel for which he had See Logs and Logging. been previously convicted.-People V. Yund (Mich.) 742. § 268. In an action by the plaintiff for the recovery of damages for personal injuries received from the explosion of a dynamite charge, a question to a witness, who had testified as to the good condition of the fuses sold to defendant, held proper on cross-examination.-Gibson v. Milwaukee Light, Heat & Traction Co. (Wis.) 877. § 275. In a suit for injuries, a certain crossexamination of plaintiff held proper.-Cummings v. Detroit United Ry. (Mich.) 206. § 275. Contestants held entitled to subject proponent to certain cross-examination concerning the facts and circumstances under which the will was prepared.-Cooper v. Harlow (Mich.) 259. $275. In a will contest, proponent held properly required to state on cross-examination that he knew of no reason why testatrix made the provisions she did for him.-Cooper v. Harlow (Mich.) 259. WORDS AND PHRASES. "Abuse of discretion."-Root v. Bingham (S. "Article of silver or gold manufacture."-Wead- 173. "Completed."-Maxcy v. City of Oshkosh (Wis.) 899. "Contract."-Antigo Water Co. v. City of An- "Conveyance."-Shutz v. Tidrick (S. D.) 811. "Criminal proceeding."-Orr v. Jackson (Iowa) "Destitute."-State v. Weyant (Iowa) 839. |