for their collection, and he has unreasonably refused so to do. Guilford
▼. Minneapolis etc. R'y Co., 694.
BEQUESTS; CREDITOR'S SUIT; DEEDS, 10; DEVISE; ESTOPPEL; FRAUDU-
LENT CONVEYANCES, 2; Insurance, 5; REAL PROPERTY, 1; RECEIVERS,
4; Statutes, 16; VENDOR and PURCHASER, 4.
ULTRA VIRES.
See CORPORATIONS, 1, 13,
UNDUE INFLUENCE.
See WILLS, 1-6.
See EVIDENCE, 4; Insurance, 10.
1. THOUGH A Contract of Sale was SignED BY THE VENDOR ONLY, and he,
for that reason, could not have maintained an action for the balance of
the purchase price, yet he may be compelled to accept such balance, and
thereupon to make a conveyance, and therefore such part of the pur-
chase price as has been paid is not without consideration, and cannot
be recovered by the vendee. Bradford v. Parkhurst, 189.
2 JUDGMENTS-BONA FIDE PURCHASER UNDER. — A judgment creditor
who levies upon land and then takes a deed therefor from his judgment
debtor, crediting the price of the land upon the judgment, but not re-
leasing the lien of his levy, is not a bona fide purchaser, but takes only
such title to the land as is possessed by the judgment debtor, and there-
fore subject to any prior conveyance thereof made by him. Bonner v.
Grigsby, 48.
& BONA FIDE PURCHASER, DOCTRINE OF, APPLICABLE TO PURCHASER OF
LEGAL TITLE ONLY. The doctrine which protects a bona fide purchaser
without notice is applicable solely to purchasers of a legal title; the pur
chaser of an equitable interest purchases at his peril, and acquires the
property burdened with every prior equity charged upon it. Where,
therefore, a party, having, at most, an equitable estate in lands the legal
title to which is in a trustee for a syndicate, mortgages such lands, the
mortgage is void. Shoufe v. Griffiths, 910.
4. TRUSTEE, PURCHASER FROM. - If a conveyance is made by one who, in an
action begun after it was executed, is adjudged to have held the prop-
erty in trust, the grantee is not bound to assume the burden of proving
that he was a purchaser in good faith and for a valuable consideration,
in a contest with the holder of title acquired under the judgment in
such action. The grantee not being a party to the action, it could not
affect him, nor establish against him that his grantor held the property
in trust. Warnock v. Harlow, 209.
5. ENTIRE CONTRACT ILLEGAL IN PART. — If an oral agreement is made for
the sale of land, one part of which the vendor had filed upon under the
desert-land act, while to the residue he had a perfect title, and such
agreement is afterwards consummated by a conveyance of the land to
which the title was perfect, and the delivery of possession of the whole
tract, and a further agreement is made that as soon as title can be pro-
cured for the other tracts they will also be conveyed, and a note and
mortgage are given for the balance due, the contract is entire, and, being
partly founded upon an illegal agreement for the conveyance of the lands
to be acquired, is, by the code of California, wholly void, and the note
and mortgage cannot be enforced, though the mortgagee, after their ex-
ecution, acquired title to the whole property. Moffatt v. Bulson, 192.
6. FAILURE OF THE Vendor to TENDER A CONVEYANCE when the purchase
price became due, or according to the terms of the contract of sale, does
not show that there has been a mutual abandonment and rescission of
the contract. Bradford v. Parkhurst, 189.
7. RESCISSION. —IT A VENDOR INDUCES THE PURCHASE OF REAL PROPERTY
BY REPRESENTING that he will do certain acts, and discontinues those
acts, but the vendees remain in possession of the property, and make
further payments thereon, ask extensions of time in which to make other
payments, it is too late for them to rescind their contract of purchase,
Delano v. Jacoby, 201.
8. RIGHT OF FORMER TO RATIFY Transfer. — A vendee cannot escape
from the obligation to pay notes given by him for the purchase price of
real property on the ground that the conveyance to him was made by a
person acting for the vendor without previous authority, if the vendor,
after knowledge of such conveyance, ratifies it, and the vendee has taken
and held possession for several years under the conveyance to him,
which he claims was not authorized. Delano v. Jacoby, 201.
9. VENDEE CANNOT, AT HIS ELECTION, ABANDON HIS CONTRACT OF PURCHASE,
signed by the vendor alone, and recover moneys paid thereon, though
the contract declared that if the balance of the purchase price were not
paid by a day designated, it should become null and void, and all pay.
ments made thereon should be forfeited, and the vendor did not ten-
der a conveyance, nor make a demand for payment, until after that day
passed. Bradford v. Parkhurst, 189.
See DEEDS; LICENSE, 3; MECHANIO'S LIEN, 4; Pleading, 7.
See CRIMINAL LAW, 7; MALICIOUS PROSECUTION, 3, 4; TRIAL, 11, 12
VERIFICATION.
See PLEADING, 10.
VESTED RIGHTS.
See RECORDS.
See MASTER And Servant, 3–8; RAILROADS, 23–25,
VIEWING PREMISES.
See TRIAL, 5, 6.
See INSURANCE, 3, 4; PLEADING, 5.
1. WHEN PURCHASER, AND LIABLE FOR GOODS IN STORE.
delivered to a warehouseman for storage, under an agreement that he
may sell all or any part of it, and either return the corn on demand or
pay for it at the market price when its return is demanded, and he sells
so much of the corn in his warehouse that there is not enough remaining
to replace all the corn so delivered to him at the time his warehouse and
its contents are destroyed by fire, he is liable for the value of all corn
so stored with him, because the transaction amounts to a sale, and not
a bailment, although he has made advances on the grain so stored.
Cloke v. Shafroth, 375.
2 POWER TO EXCHANGE GRAIN IN STORE - LIABILITY FOR Loss. A ware.
houseman as bailee of the grain of others, in store in his warehouse, has
no power to transfer it or any part of it to another in exchange for the
grain of the latter which such warehouseman has sold as his own. In
case of the destruction of his warehouse and its contents by fire, he
will be liable for the value of the grain thus sold by him. Oloke v.
Shafroth, 374.
WARRANT.
See FALSE IMPRISONMENT.
WARRANT OF ATTORNEY.
See SURETYSHIp, 1.
See ESTATES; NEGOTIABLE INSTRUMENTS, 6.
1. SURFACE WATERS. IT IS NOT TRUE THAT A LAND-OWNER OR A MUNI-
CIPAL CORPORATION may lawfully collect surface water into an artificial
channel and pour it on another's land. Patoka Township v. Hopkins, 417.
2. SURFACE WATERS. IF A PUBLIC CORPORATION by its acts makes neces-
sary an outlet for the escape of water collected by it into artificial water-
ways, it must provide that outlet. Otherwise it is guilty of an actionable
wrong. Patoka Township v. Hopkins, 417.
3. HIGHWAYS-SURFACE WATERS FROM. - If surface waters are collected
in ditches at the sides of a public highway, and those ditches are then
united and their waters thrown on the land of a private proprietor, ren-
dering it wet and untillable, he is entitled to maintain an action against
the township under whose authority the injury was inflicted, to enjoin
its continuance. Patoka Township v. Hopkins, 417.
4. RIPARIAN OWNER'S RIGHT TO WATER-POWER. A riparian owner on
navigable river has no right to the water-power either above or below
low-water mark, and cannot recover for its loss from obstruction and
diversion by an adjoining owner. Williams v. Fulmer, 767.
5. RIPARIAN OWNER - DAMAGES FOR DIVERSION OF STREAM. — A riparian
owner on a navigable river is entitled to recover, as against another ri.
parian owner, for a diversion of the stream by the latter from its natural
channel. If the wrong is done without malice, he must restore the
stream to its natural channel, or make compensation for the loss; but
if malice is shown, exemplary damages may be recovered against him.
Williams v. Fulmer, 767.
& DIVERSION OF WATER without applying it to a beneficial use within a rea-
sonable time is not an appropriation thereof, but is unconstitutional and
unlawful. Combs v. Agricultural Ditch Co., 275.
7. WATERS CANNOT be Diverted FOR PURPOSES OF SPECULATION, but only
for purposes truly beneficial in their nature. Combs v. Agricultural
Ditch Co., 275.
8. PRIOR APPROPRIATOR NOT ENTITLED TO EXCESSIVE DIVERSION. —A prior
appropriation of water by a person for irrigation purposes does not en-
title him to receive more water than is necessary for his actual use.
An excessive diversion of water is not a diversion to a beneficial use.
Combs v. Agricultural Ditch Co., 275.
9. RIGHTS OF PRIOR APPROPRIATOR against DIVERSION — JOINDER Of Par-
TIES. A party who is entitled, by right of prior appropriation, to the
use of the water from a natural stream is entitled to have such prior.
ity protected against the acts of junior appropriators to his injury,
whether such acts are joint or several, and for that purpose he is en-
titled, if necessary, to join them all as defendants in one action. Saint
Guerrerio, 320.
10. RIGHTS OF PRIOR APPROPRIAtor against DiveRSION. —A party entitled
to the prior right to use the water of a stream cannot identify certain
specific water as his while running in the stream, unless he can show
that he is entitled to all of such water. So long as he is able to secure
the full amount of water to which he is entitled, he cannot complain
that some other person, higher up the stream, is diverting its waters.
Saint v. Guerrerio, 320.
11. RIGHTS TO, how DetermINED. — Mathematical exactness in measuring
the flow of water is impracticable, and cannot be attained; but a reason.
able approximation to substantial accuracy should be aimed at in deter-
mining controversies relating to water supply. Combs v. Agricultural
Ditch Co., 275.
12. RIGHTS OF PRIOR APPROPRIATORS AS AGAINST DITCH COMPANY. - A
company may organize for the purpose of constructing an irrigation
ditch and divert the unappropriated water of a natural stream, either by
or without incorporation; but neither the company nor any stockholder
therein can thus withhold the water from beneficial use, nor reserve it
for future use by junior appropriators, to the prejudice of prior appro
priators, nor to the exclusion of those who, in the mean time, undertake,
in good faith, to make a valid appropriation thereof. Combs v. Agricul
tural Ditch Co., 275.
13. APPROPRIATION - RIGHT OF WAY. — In an action involving a contest
between water appropriators as to priority of right to the use of water,
the court may determine who is entitled to a right of way for the car.
riage of water through a ditch already constructed, although the action
is not brought to condemn a right of way under the act of eminent do-
main. Saint v. Guerrerio, 320.
A ditch company carrying water for general
purposes of irrigation cannot arbitrarily refuse to supply water to an
actual and bona fide consumer making seasonable application, and offer-
ing proper compensation. Combs v. Agricultural Ditch Co., 275.
15. CONSUMER'S RIGHT CANNOT BE REGULATED BY WATER COMPANY.
The right of individual consumers, upon tender of the carriage fee, to
water diverted by an irrigation company, and not already applied to a
beneficial use, can no more be evaded or qualified by a regulation of
the company compelling the purchase of stock as a condition precedent
to use, than it can by a regulation fixing a sum in excess of the price
charged for carriage to be thus paid for the use of water. Combs ▼.
Agricultural Ditch Co., 275.
16. OWNERSHIP OF STOCK IN IRRIGATION COMPANY NOT APPROPRIATION. —
Priority of appropriation of water cannot be secured by the mere ac-
quisition of stock in an irrigation company without applying the water
to a beneficial use. The life of a prior right to water is actual user,
and the owner of irrigation stock cannot carry prior rights to the use of
water in his pocket for an indefinite and unreasonable time, and thereby
prevent others from acquiring a bona fide priority by actual use. Combs
v. Agricultural Ditch Co., 275.
17. OWNERSHIP OF WATER STOCK, WHEN GIVES PRIOR RIGHT. —A stock-
holder in an irrigation company who makes an actual application of water
from the company's ditch to a beneficial use may, by means of such use,
acquire a prior right thereto; but his title to the stock without such use
gives him no title to the priority. He may transfer his stock to any
one, but he can only transfer his priority to one who will and does con-
tinue to so use the water. Combs v. Agricultural Ditch Co., 275.
18. RIGHTS OF DITCH-OWNERS TO. - Those who construct ditches and divert
water for general purposes of irrigation must, within a reasonable time,
apply the water to a beneficial use, or upon proper application, and for
proper consideration, they must dispose of it to those who are ready to
make a beneficial use of it. Combs v. Agricultural Ditch Co., 275.
19. RIGHTS OF DITCH-OWNERS TO. Those who, by labor or the payment of
money, actually construct an irrigation ditch may thereby acquire a
prior right to the water diverted therein, provided they apply such water
to some beneficial use, within a reasonable time after diversion; but they
cannot postpone the exercise of such right for an unreasonable time,
so as to prevent others from acquiring a right to the water; nor can they
thus acquire a right to dispose of the water to the prejudice of prior ap-
propriators. Combs v. Agricultural Ditch Co., 275.
See MANDAMUS, 1; Real PropERTY, 4.
MINENT DOMAIN-PUBLIC DUTY TO PROVIDE FOR NECESSITIES OF COM-
MERCE PUBLIC USE. To minister to the necessities of commerce by
providing suitable places in a seaport, where ships can be loaded and un-
loaded, with all proper facilities, is a public duty owing by the state, and,
through it, by the municipality which governs and controls the port,
and the necessities of the business are the only standard by which to
judge of the extent of this duty. If a permanent pier and an exclusive
right to its use be a necessity of large steamship lines, without which
business cannot be properly transacted, the duty rests upon the state or
the municipality to furnish such accommodations, or to permit the steam-
ship companies to obtain them from private owners; and when the state
has imposed upon the municipality the performance of this duty, all
appropriate acts done by it in such performance are for a public pur.
pose. Lands needed by a municipality bound to perform such a duty
for the construction of piers and wharves are therefore required for a
public use, and may be taken in the exercise of the right of eminent
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