BANKS AND BANKING-DISCOUNT OF NEGOTIABLE PAPER.-A bank which
discounts a draft at a rate of interest equal to twelve per cent per an-
num in violation of a statute providing that "any banker who discounts
any note, bill of exchange, or draft at a higher rate of interest than eight
per cent per annum, not including the difference of exchange, is guilty of
a misdemeanor," and cannot recover on the draft, as it is void in its hands
as being acquired under an unlawful and criminal contract. Youngblood
▼. Birmingham Trust etc. Co., 245.
1. AN OPTION TO PURCHASE REAL PROPERTY IS A SUBSTANTIAL INTEREST
IN LAND, and when the option is exercised the purchaser is considered
as the owner ab initio. Peoples etc. Ry. Co. v. Spencer, 22.
2 IF AN OPTION IS GIVEN TO PURCHASE REAL PROPERTY UPON WHICH AN
INSURANCE AGAINST LOSS BY FIRE exists or is subsequently effected, and
the loss occurs, after which the option is exercised and a conveyance of
the property made, the purchaser is entitled to the moneys due upon
such insurance. Peoples etc. Ry. Co. v. Spencer, 22.
See AGENCY, 11; Contracts, 8, 9; DEEDS; EVIDENCE, 1; PRivate Ways
See ELECTRIC LIGHT COMPANIES; STATUTES, 13.
See APPEAL, 1; DEEDS, 6; HIGHWAYS, 4; INSURANCE, 8; JURISDICTION, 7)
LANDLORD AND Tenant, 3; PLEADING, 2; REPLEVIN.
SELLING GOODS ON COMMISSION, LIABILITY OF.—
-A mortgagee of goods can-
not maintain an action for conversion against a public warehouseman
who receives a portion of those goods from the apparent owner, in the
usual way and without any notice, either actual or constructive, of an
adverse claim, and sells them on commission at a public sale in the reg.
ular course of business, without asserting any interest or right hostile
to such mortgagee. Abernathy v. Wheeler, 593.
1. WHAT ARE.-To constitute a watercourse, it is not necessary that there
should be a continual flow of water, but there must be a stream, which
usually flows in a particular direction, in a well-defined channel, having
a bed and sides or banks. Such a stream, so long as it can be traced by
the existence of such a channel, wherever the ground is suitable for
cutting one, and does not lose its identity as the same stream, does
not cease to be a watercourse because it spreads out at some points into
marshes and swamps. Case v. Hoffman, 937.
2 SURFACE Waters, What ARE.-Surface waters are such as lie upon or
spread over the surface, or percolate the soil, as in swamps, and do not
flow in a particular direction. Case v. Hoffman, 937.
& ACTION TO ENJOIN DIVERSION-PLEADING.-A complaint in an action
to establish rights in an alleged watercourse, and to enjoin the diver.
sion thereof, is not demurrable on the ground of misjoinder of causes
of action, when it also asks for the specific performance of a contract
made by the plaintiff with the defendant's grantors, by virtue of which
it is averred that, even if the waters in question do not technically con
stitute a watercourse, the plaintiff is entitled to have the use of them
for irrigating his land. Case v. Hoffman, 937.
4. Right to When a Freehold.—A perpetual right to have a certain quan.
tity of water flow through an irrigation ditch is an easement therein,
and an incorporeal hereditament descendible by inheritance, hence
freehold estate. Wyatt v. Larimer Irr. Co., 280.
5. RIPARIAN RIGHTS OF MUNICIPALITIES. -Dwellers in towns and villages,
through which a stream passes, may use the water thereof to the same
extent as any other riparian proprietors, provided they can reach the
stream by a public highway, or secure a right of way over the lands of
others. Barre Water Co. v. Carnes, 891.
6. USE OF STREAM FOR SUPPLY OF MUNICPALITY, WHEN NOT ENJOINED.-A
riparian municipality which has obtained legislative authority to build a
a dam and lay pipes, with a view to obtaining, for domestic, fire, and
sanitary purposes, a reasonable supply of water from a stream on which
it is situated, cannot be enjoined from so using the water at the suit of
a municipality lower down the same stream, which has never acquired,
by purchase or otherwise, the rights of the riparian proprietors above it.
Barre Water Co. v. Carnes, 891.
7. SUFFICIENCY OF COMPLAINT IN ACTION TO ESTABLISH RIGHTS IN A
WATERCOURSE.-A complaint in an action to establish certain rights
in a watercourse, alleged to have been diverted, is not demurrable on
the ground that the stream described is not a watercourse, when it
alleges that "there were always, and are yet, living springs, which
continuously flow and discharge their waters by a well-defined stream
into a natural lake of about sixty acres in extent, known as 'Big
lake'"; that "the waters so gathered flowed, under natural condi
tions, upon the surface and beneath the surface of the lands lying
to the southeast of said lake to and across the said lands of the
plaintiff, and thence easterly, until they discharged themselves and
were again collected in a stream known as 'Beaver creek '"; that
"the said natural flow or stream of water from the lake was well defined
and established, and, in places, one of which was upon the land of
the plaintiff, had made for itself a distinct and plainly marked channel,
pointing and showing the natural flow of the water" and that "said
stream was known and commonly called by the name of the 'West
branch' of 'Beaver creek.'" The fact that such complaint also shows
that the stream spread over wide reaches of marsh and swamp lands,
and percolated the soil in many or most places between the 'Big lake'
and 'Beaver creek,' therein referred to, does not affect its sufficiency.
Case v. Hoffman, 937.
8. PROPERTY RIGHTS IN.-The water of every natural stream in Colorado
is the property of the public. Private ownership therein is not recog.
nized, but the right to divert water therefrom and apply it to beneficial
uses is expressly guaranteed by the constitution. Fort Morgan Land
etc. Co. v. South Platte Ditch Co., 259.
9. APPROPRIATION, WHAT CONSTITUTES.-A priority of right to the water
of a natural stream can be legally acquired only by the application of
such water to a beneficial use. Hence, there must not only be a di
version of the water from the stream, but an actual application of it
to the soil, to constitute a constitutional appropriation for irrigation.
Fort Morgan Land etc. Co. v. South Platte Ditch Co., 259.
10. APPROPRIATION OF.-By the diversion and use of the waters of a natural
stream, a priority of right to such use may be acquired, and, when so
acquired, such priority is a property right, subject to sale and transfer.
Fort Morgan Land etc. Co. v. South Platte Ditch Co., 259.
11. APPROPRIATION, WHEN COMPLETE.-An appropriation of the water of
a natural stream is complete only when some open, physical demon-
stration indicates an intent to take, for a valuable or beneficial use,
and such intent is followed by taking and applying the water to the
use designed. Fort Morgan Land etc. Co. v. South Platte Ditch Co., 259.
12. APPROPRIATION — PRIORITIES.—Awarding priorities to several ditches
in excess of the amount of water actually appropriated at the time the
decree is rendered is error. A prior diversion and promised future use
do not support such decree. Fort Morgan Land etc. Co. v. South Platte
Ditch Co., 259.
Bee CONTRACTS, 4, 5; Equity, 2; IRRIGATION COMPANIES; JURISDICTION, 6;
LANDLORD AND TENANT, 8-10; PLEADING, 1; RAILROADS, 1-9; WHARVES.
1. RIPARIAN PROPRIETOR'S RIGHT TO WHARFAGE. -A proprietor of lands
fronting upon navigable waters has the right to connect himself there.
with by means of wharves or channels extending from his uplands out
to navigable water, so long as he does nothing to interfere with the free
navigation of such water. Prior v. Swartz, 333.
2. NAVIGABLE WATERS-CONFLICT BETWEEN RIGHT TO PLANT OYSTERS AND
THE RIGHT TO CONSTRUCT WHARVES.-The right of a riparian proprietor,
by wharves and channels, to connect his upland with the navigable
water in front thereof is paramount to any right in others to plant or
cultivate oysters on the land covered by such wharves or channels.
Prior v. Swartz, 333.
1. DIFFERENT PAPERS EXECUTED AT DIFFERENT DATES AS ONE WILL,
A testamentary paper executed by a testatrix in execution of a testa.
mentary power conferred on her by her deceased husband is not revoked
by the execution of a later will and codicil containing substantially the
same provisions as the first paper, but without referring to it, and the
two instruments, when taken together, constitute the last will of the
testatrix. Knox v. Knox, 235.
1 CONSTRUCTION OF.-IF THE SAME TRACT OF LAND IS DEVISED IN Two
DIFFERENT CLAUSES of a will to different persons, such clauses are not
regarded as repugnant, but are treated as manifesting an intention that
the devisees shall hold as cotenants. Day v. Wallace, 424.
UNEQUAL BEQUESTS-PRESUMPTION-BURDEN OF PROOF.-Although a
testator may not in his will dispose of his property equally to his next
of kin, that fact alone does not raise a presumption of mental incapacity
or undue influence, but must be considered with other facts in deter-
mining that issue. Such fact does not shift the burden of proof upon
the proponent or beneficiaries under the will, and require him to show
a sound mind and freedom of will on the part of the testator at the time
of its execution. Knox v. Knox, 235.
TESTAMENTARY
a testator has
mind and memory sufficient to recall and remember the property he is
about to bequeath, the objects of his bounty, the disposition which he
wishes to make, and to know and understand the nature and conse.
quences of the business to be performed, and to discern the simple and
obvious relation of its elements to each other, he has in contemplation
of law a sound mind and testamentary capacity. Knox v. Knox, 235.
TESTAMENTARY CAPACITY.-If a testator has mind and memory sufficient
to recollect the property he is about to bequeath, the persons to whom he
wishes to bequeath it, and the manner in which he wishes it disposed
of, and to know and understand the business he is engaged in, then, in
contemplation of law, he has a sound and disposing mind; and great
age, bodily infirmity, or even an impaired mind, will not vitiate his
will. Eustis v. Montgomery, 227.
6. TESTAMENTARY CAPACITY-BURDEN OF PROOF.-Testamentary inca
pacity to invalidate a will must exist at the time of its execution.
The presumption of capacity is always indulged, and the burden of
proof is upon the party contesting the will to show incapacity. This
burden can be shifted to the proponent only by showing prior habitual
or fixed insanity, or actual insanity, or other incapacity of the testator,
at the date of the execution of the will. Eustis v. Montgomery, 227.
7. UNDUE INFLUENCE SUFFICIENT to avoid a will must amount to
coercion or fraud, and must be an influence tantamount to force or fear,
destroying the free agency of the party, and constraining him to do
what is against his will. Mere persuasion or argument addressed to
the judgment or affections, in which there is no fraud or deceit, does
not constitute undue influence. Knox v. Knox, 235.
& EVIDENCE OF UNDUE INFLUENCE OR MENTAL INCAPACITY.-When a
will is contested on the ground of mental incapacity or undue influence,
the real issue is as to the condition of the mind, or the operation and
effect of the undue influence, at the particular time of the execution of
the will, but all prior facts and circumstances tending to elucidate the
condition of the mind of the testator at that particular time are admis-
sible in evidence. Knox v. Knox, 235.
UNDUR INFLUENCE EVIDENCE that a son of testatrix, who was her
general business agent, signed her name to a bond for title to land sold
by her, is inadmissible to show undue influence exercised by him over
her.
Eastis v. Montgomery, 227.
10. UNDUE INFLUENCE-EVIDENCE-If a will is contested on the ground
of undue influence exercised by the proponent, and evidence is admitted
to show that certain grandchildren omitted from the will maintained
AM ST. REP., VOL. XXXVI. — 67
friendly and affectionate relations with the testatrix, the proponent may prove that such children had some considerable property in their own right. Bastis v. Montgomery, 227. 11. UNDUR INFLUENCE-BURDEN OF PROOF.-Although the proponent of a will is one of the executors and chief beneficiaries named therein, and was the general business agent of the testatrix, his mother, his activity, not of his own motion or prompted by personal motives, but exercised in behalf of the testatrix at her request, and in furtherance of her purposes in assisting her about the execution of the will, does not, combined with such confidential relations, shift the burden of proof as to undue influence upon him. Eastis v. Montgomery, 227.
12 UNDUE INFLUENCE-INSTRUCTIONS.—An instruction that "the conduct of one in vigorous health toward one feeble in body, even though not unsound in mind, may be such as to excite terror or dread, and to make him execute as his will an instrument which, if he had been free from such influence, he would not have executed, imaginary terrors may have been created sufficient to deprive him of his free agency," is properly refused as abstract and argumentative. Eastis v. Montgomery, 227. 18. UNDUE INFLUENCE-WHAT SUFFICIENT TO VITIATE WILL.-Unless the will in contest was obtained by moral coercion, or by importunity which could not be resisted by the testator, the will must stand. Bastis v. Montgomery, 227.
14. UNDUE INFLUENCE-INSTRUCTIONS.-When a will is contested on the ground of undue influence, an instruction that a controlling agency exercised by the proponents or beneficiaries under it in procuring its execution “is a very suspicious circumstance requiring the fullest explanation," requires too high a degree of proof, and is properly refused. Evidence of any fact sufficient to reasonably satisfy the minds of the jury is all that is required in civil cases. Knox v. Knox, 235.
See CONTRACTS, 17; DEVISE; ESTATES, 2, 3; EVIDENCE, 2; TREATIES, 3.
VERACITY EVIDENCE IS ADMISSIBLE TO SHOW the reputation of a witness for truth and veracity. State v. Burpee, 775.
See APPEAL, 3, 5; EVIDENCE, &
WRITS OF ERROR.
See BILLS OF REVIEW, 2
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