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WARRANTY:

In application for insurance, see INSURANCE, 4-10.

On sale of goods, see SALES, 6, 7, 9.

WATERS AND WATER COURSES:

See CANALS.

Exercise of power of eminent domain, see EMINENT DOMAIN, 2, 4,
12, 13.

Waters capable of navigation as public highways, see NAVIGABLE
WATERS.

Liability of water company for injuries to traveler by reason of
excavation across public highway, see NEGLIGENCE, 2.

1.

3.

2.

SAME RIPARIAN RIGHTS-NEW SPRINGS. No riparian rights can
be claimed by a lower proprietor in or to the waters of a new spring
that breaks out upon the lands of another and flows therefrom across
his land, riparian rights attaching only to streams that are wont
to flow from time immemorial. Mason v. Yearwood ... .... 276

4.

WATERS AND WATER COURSES-APPROPRIATION-RIPARIAN RIGHTS.
The right to waters by a prior appropriation thereof obtains only
in the case of waters upon public lands, and not to waters upon land
where the title from the government had been obtained or initiated;
since the common law doctrine of riparian rights prevails in this
state and would attach to lands acquired from the government, pre-
venting appropriation thereof. Mason v. Yearwood

276

WATERS AND WATER COURSES-RIPARIAN RIGHTS. An upper riparian
owner may not impound all the waters of a natural water course for
fourteen hours out of every twenty-four without the consent of
lower proprietors or the condemnation of their rights. Tacoma
Eastern R. Co. v. Smithgall

445

WATERS AND WATER COURSES-DIVERSION-DAMAGES-EVIDENCE-
SUFFICIENCY. In an action against a city for the wrongful diver-
sion of the waters of a creek, the fact that riparian owners were
also diverting the waters is no defense, where they were using only
the amount to which they were entitled and no material damage
would have resulted to plaintiff but for the substantial diversion
made by the city. Dement Brothers Co. v. Walla Walla

60

5. SAME MEASURE OF DAMAGE. The measure of damages for di-
verting water from a mill power, where electrical machinery was
installed to operate the mill, is the cost of operating the same.
Dement Brothers Co. v. Walla Walla
60

6.

SAME

DIVERSION-DAMAGES-EVIDENCE-SUFFICIENCY.

An owner

of a mill may recover damages for the diversion of the waters of a
stream used for power purposes, although the mill formerly shut
down during the dry season because of insufficient water to run the
mill, where it appears that while there was a general shortage

WATERS AND WATER COURSES-CONTINUED.

through the winter months, even during the dry season there had
been power enough to elevate and clean grain and run a feed mill.
Dement Brothers Co. v. Walla Walla

8.

60
7. SAME DIVENSION STREAMS CHANNELS. Where springs, the
principal source of a city supply, are fed by waters diverted by the
city from a stream, so that the diverted waters can be traced as a
part of the surface flow, a lower proprietor on the stream may
recover his damages caused by the diversion. Dement Brothers Co.

v. Walla Walla

60

9.

....

SAME-WATER RIGHTS-PRESCRIPTION-ADVERSE USE — EXTENT—
EASEMENTS. Where new springs broke out upon the defendant's
land, and the flow constantly increased from year to year, an ad-
joining owner, who for twenty-five years diverted and continuously
used water from the springs, acquired a prescriptive right to the
use of so much of the water as she had adversely used during the
statutory period of ten years immediately preceding defendant's ob-
struction thereof; since easements may be acquired by adverse use;
but the plaintiff could not enjoin the defendant's use and diversion
of the increased flow not diverted and adversely used by the plaintiff
ten years previously. Mason v. Yearwood

.. 276

WILLS:

WATERS AND WATER COURSES-POLLUTION OF STREAM-RIPARIAN
RIGHTS EQUITY—INJUNCTION. Equity will restrain a logging com-
pany from polluting a stream constituting a city water supply, by
the use of a bridge which had settled into the water, where the
bridge could be raised and the injury obviated at slight expense,
even though the logging operations were carried on in the usual
manner; since (1) each riparian owner's rights is qualified by the
reasonable rights of the other, and (2) the pollution was due to im-
proper use of the land and not of the waters of the stream. Aber-
deen v. Lytle Logging & Mercantile Co. ...
368

WAYS:

Injury to traveler invited to use private way, see NEGLIGENCE, 1-4.

Disposal of property and right of succession by alien heirs, see
TREATIES.

AND

1. WILLS-PROBATE-CONTEST-COSTS--ALLOWANCE-EXECUTORS
ADMINISTRATORS-CLAIMS AGAINST ESTATE. The costs and expenses
incurred for attorney's fees in contesting the probate of a will are
not a claim against the estate of the deceased which must be pre-
sented to the administrator for allowance, and they are properly
allowed, when the will is held void, as a judgment against the estate,
under Rem. & Bal. Code, § 1313, after a citation to the adminis-
trator and a hearing before the court. In re Statler's Estate. 199

WILLS-CONTINUED.
2. SAME-PROCEEDINGS-Costs—SECURITY FOR. A proceeding against

an administrator by citation, to secure allowance of costs for con-
testing the probate of a will, is but a continuation of the probate
contest, and a bond for security for costs by nonresident contestants
cannot be required. In re Statler's Estate

199
3. SAME-Costs—PARTIES ENTITLED—"BENEFIT" TO ESTATE. Costs

and attorney's fees for contesting the probate of a will may be
allowed as a “benefit" to the estate, where the contestants were
successful and the expenses when allowed reduce their residuary
share in the estate. In re Statler's Estate.....

... 199
4. SAME-AMOUNT OF Costs. Costs and attorney's fees for contest-

ing the probate of a will are not confined to the costs allowed by
the general statutes, Rem. & Bal. Code, $ 481; but are governed by
the special statute, Id., $ 1313, in which no limitation is fixed. In
re Statler's Estate

199

WITNESSES:

Fees as costs, see Costs, 2.
Opinions, see EVIDENCE, 8-14.
Competency of expert witnesses in civil actions, see EVIDENCE, 14.
Dying declarations, see HOMICIDE, 2.

1. WITNESSES-COMPETENCY-TRANSACTIONS WITH DECEASED.

In an
action against an estate by a former partner of the deceased, plaintiff
is disqualified from testifying as to any transactions had with the
deceased. Shaw v. Lobe

... 219
2. WITNESSES-Cross-EXAMINATION-DISCRETION. Where the defend-

ant had testified as to the rate of speed he had been in the habit of
running his automobile, it is discretionary for the trial court to
allow cross-examination as to the speed he had run on a specified
occasion, for the purpose of testing his accuracy of recollection.
Buckles v. Reynolds

485
3. WITNESSES-IMPEACHMENT. In an action by an experienced rip

sawyer to recover for injuries sustained by reason of a defect in the
saw of which he had no notice, after the mill superintendent had
testified on cross-examination that he would not put a green hand
to work upon a ripsaw without instructions, it is not competent to
impeach the witness in this respect, as the matter is collateral to
the issue and the party is concluded by the answer of the witness.
Wharton v. Tacoma Fir Door Co.

124
4. WITNESSES-IMPEACHMENT-COLLATERAL MATTERS. In an action

for assault in the ejection of a passenger from a street car, the
motorman cannot be impeached in regard to testimony as to his
age, drawn out on cross-examination, as it was a collateral matter.
Kirk v. Seattle Electric Co.

283

1

WITNESSES CONTINUED.

5.

WITNESSES-IMPEACHMENT-EXPERTS-REPUTATION. It is not error
to permit a medical expert to be impeached upon his general reputa-
tion for truth and veracity, the same as in the case of any other
witness. State v. Newcomb

414

WORK AND LABOR:

Liens for work and materials, see MECHANICS' LIENS.

WRITINGS:

Province of court in construing written order and acceptance, see

CONTRACTS, 2.

Parol evidence to vary or explain, see EVIDENCE, 5-7.

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