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more than one child, one third descends to the husband and two thirds in equal shares to the children: Beck v. Soward, 76 Cal. 527. If no homestead was declared in community property during the existence of the community, the community property will vest according to section 1402 of the Civil Code, subject, however, to its temporary use as a homestead under the order of the probate court, which may set it apart for that purpose: In re Gilmore, 81 Cal. 240; In re Armstrong, 80 Cal. 71. When the law under which a homestead was created is amended before the death of one of the spouses, the right of survivorship is governed by the amended law: Tyrrell v. Baldwin, 78 Cal. 470; Threat v. Moody, 87 Tenn. 143. Under the Texas statute existing in 1863, the homestead vested absolutely in the widow of the deceased husband, where he dies insolvent, exempt from any claims by his heirs or creditors: Watson v. Rainey, 69 Tex. 319; Childers v. Henderson, 76 Tex. 664. See also Kite v. Kite, 79 Iowa, 491, for the rule in Lowa.
HOMESTEAD-EFFECT OF DEATH OF HUSBAND OR WIFE. Effect of the death of the wife upon the homestead: Revalk v. Kraemer, 8 Cal. 66; 68 Am. Dec. 304, and particularly note 309. In Arkansas, the minor children and the widow of one who has died are entitled to his homestead: Winters v. Davis, 51 Ark. 335; Sansom v. Harrell, 51 Ark. 429: Stayton v. Halpern, 50 Ark. 329; Nichols v. Shearon, 49 Ark. 75.
Under the Iowa statute, the widow may elect to occupy and enjoy her de ceased husband's homestead during her natural life, or to take a distributive share of one third in fee-simple of the realty of which the husband was seised at his death: McDonald v. McDonald, 76 Iowa, 137. Compare Nicholas v. Purcell, 21 Iowa, 265; 89 Am. Dec. 572, and note. Upon the death of either spouse, there cannot be thereafter any abandonment of the homestead on the part of the survivor, if the title was in the deceased, except by an actual setting off of the distributive share to such survivor under his or her election to that effect: Darrah v. Cunningham, 72 Iowa, 123.
In Minnesota, under the statute of 1876, a surviving spouse was entitled to a life estate in homestead realty independent of the rights of the minor children: McCarthy v. Van der Mey, 42 Minn. 190. But where a homestead right has been lost by a failure to comply with the requirements of the law, the premises do not pass to the surviving spouse: Baillif v. Gerhard, 40 Minn. 172.
Under the Mississippi code, the surviving husband takes the homestead owned by his deceased wife, only when she died intestate, leaving no issue: Kelly v. Alred, 65 Miss. 495.
In Missouri, however, a husband is not able by his will to deprive his wife and minor children of their rights in the homestead owned by him at his decease: Rockhey v. Rockhey, 97 Mo. 76; and after all the children have attained their majority, the widow is entitled to the exclusive use and occupancy of the homestead: Rockhey v. Rockhey, 97 Mo. 76. For the home. stead right of each child expires when it attains its majority: Quinn v. Kinyon, 100 Mo. 551.
In North Carolina, in Tucker v. Tucker, 103 N. C. 170, it was decided that a homestead, whether laid off to the husband in his lifetime, or to his surviving wife after his decease, leaving no children, cannot be divested in favor of the heir by the release or satisfaction of the deceased man's debts.
Under the Texas constitution, a homestead is not subject to partition, when the party receiving it in partition would be entitled to possess it against others, so long as the surviving spouse elects to occupy it, or so long as the guardian of the minor children is permitted to occupy it by a court of
competent jurisdiction: Hudgins v. Sansom, 72 Tox. 229. For the homestead is not lost by the death of the wife, if the husband continues to make it his residence: Taylor v. Boulware, 17 Tex. 74; 67 Am. Deo. 642. A surviving husband may sell the homestead to satisfy an indebtedness of the community property out of which it was carved, even though the wife left a child surviving her: Fagan v. McWhirter, 71 Tex. 567.
The Virginia code provides that after the husband's death the homestead shall continue for the benefit of the widow and minor children, but when she has married and the children have attained their majorities, the homestead may be subjected to the payment of the deceased husband's debts; Hanby v. Henritz, 85 Va. 177.
Where minor children survive both parents, they take the entire estate in an uncompleted homestead entry, to the exclusion of adult children: Bernier v. Bernier, 72 Mich. 43. When upon the death of the owner of a homestead no constituent of the family survives, the exemption ceases: Childers v. Henderson, 76 Tex. 664.
HOMESTEAD - EXCESS OF AMOUNT ALLOWED BY LAW.-Although homestead is in excess of the statutory value, the levy of an execution thereon merely lays the foundation for proceedings for the admeasurement of the excess in value: Lubbock v. McMann, 82 Cal. 226; 16 Am. St. Rep. 108. That a homestead exceeds the statutory value does not prevent the premises from becoming a valid homestead, nor does it subject the whole premises to sale under execution: Hargadene v. Whitfield, 71 Tex. 482. In the absence of fraud the amount of money expended upon a homestead cannot be considered in determining whether it should be subjected to the debts of the owner: First Nat. Bank v. Hollinsworth, 78 Iowa, 575. Where & homestead exceeds the statutory limit in value, the sheriff, under an execution, cannot sell a part of it, but must proceed under the provisions of the statute to set apart the exemption before selling the part not decided exempt by the freeholders: Rhyne v. Guevara, 67 Miss. 139; Stone v. McCann, 79 Cal. 460; Meyer v. Nickerson, 100 Mo. 599. See extended note to Blue v. Blue, 87 Am. Dec. 273-281, for the law relating to sales of homesteads under execution, wherein are discussed cases in which the homestead claimed exceeds the value or quantity allowed by statute. In Illinois, where the homestead laimed exceeds in value one thousand dollars, the excess is liable to the same liens, and may be alienated in like manner as other property owned by the householder: Watson v. Doyle, 130 Ill. 415.
PARKER V. LARSEN.
[86 CALIFORNIA, 236.]
WATER FROM ARTESIAN WELLS - LIABILITY FOR PERCOLATION. — One hav. ing artesian wells upon his land, and so using them that the water therefrom forms in a pool and thence percolates beneath the surface so as to injure the lands of an adjacent proprietor, is answerable in damages for the injuries thus occasioned.
C. D. Wright, for the appellant.
T. H. Laine, for the respondent.
BELCHER, C. C. This is an action for damages and an injunction. The court below gave judgment for the plaintiff, and the defendant appeals on the judgment roll. The facts found are, in substance, as follows: The plaintiff and defendant own adjoining tracts of land in Santa Clara County, the plaintiff's tract lying north of defendant's. Both tracts are adapted to and are used for agricultural purposes. They are nearly level, but there is sufficient slope so that water will flow from the land of defendant to and upon the land of plaintiff. The defendant raises alfalfa on his tract, and in order to do so, it is necessary that the ground be irrigated two or three times during the summer. He has two artesian wells upon the upper end of the tract, which are so capped that the water can be shut off or permitted to flow, at his pleasure. He has also excavated along the north side of his land, and two or three feet from the plaintiff's south line, a shallow ditch, which is several hundred feet long, and has no outlet or drain from either end. In excavating this ditch, the earth was thrown up on the north side thereof, that is, between the ditch and the plaintiff's line. When he wishes to irrigate his land, he removes the caps and lets the water flow over the surface for ten days or two weeks, and when it is sufficiently irrigated, the wells are again closed. The excess of water not absorbed and held by the soil flows into the ditch above mentioned, and forms a pool some two or three hundred feet in length and some six or ten inches in depth, and remains there for abou a week, and until taken up by evaporation and percolation. Upon the west side of defendant's tract is a lane, and upon the side of it a ditch, much lower than his land, into which, at a very small expense, and with little inconvenience, he could drain the water from his ditch, and probably prevent any injury to plaintiff.
During the last two or three years, and two or three times each summer, defendant has irrigated his land in the manner above described, and on each of these occasions the water has accumulated, as above stated, and has slowly percolated beneath the surface, and through the embankment, into the plaintiff's land, and has saturated the soil to a considerable distance, and to the extent of three acres, which has thereby been made wholly useless for any purpose of ordinary hus bandry. And during this period, upon one or more occasions, the water from these wells has flowed over the top of the ebankment, and thence upon the surface of the plaintiff's field.
The damage and injury to plaintiff's land, from these percolations, is one hundred dollars. The defendant, in so running and using said water, and permitting it to accumulate upon the north line of his field, was not actuated by any malice or desire to injure plaintiff, but it was done for the purpose of fully utilizing the whole of his field in growing the crop of alfalfa. And, as conclusions of law, the court found that the plaintiff was entitled to a judgment for one hundred dollars damages, and to an injunction restraining the defendant from permitting the water from his wells to flow to and accumulate in the ditch along the north line of his land. And judgment was so entered. From the foregoing statement of the facts, it is manifest that the plaintiff was entitled to the relief which he obtained. The water which did the injury to plaintiff was not a natural stream flowing across defendant's land, but was brought upon the land by artificial means. And the rule is general, that, where one brings a foreign substance on his land, he must take care of it, and not permit it to injure his neighbor. The law upon the subject is tersely expressed in the maxim, Sic utere tuo ut alienum non lædas. We think the judgment should be affirmed, and so advise.
VANOLIEF, C., and HAYNE, C., concurred.
The COURT. For the reasons given in the foregoing opinion, the judgment is affirmed.
MAXIMS-SIO UTERE TUO UT ALIENUM NON LÆDAS.
the application of the maxim, Sic utere tuo ut alienum non lædas, see Pittsburg etc. R. R. Co. v. Gilleland, 56 Pa. St. 445; 94 Am. Dec. 98; Hill v. Portland etc. R. R. Co., 55 Me. 438; 92 Am. Dec. 601; Stinson v. New York etc. R. R. Co., 32 N. Y. 333; 88 Am. Dec. 332; Radcliff v. Mayor, 4 N. Y. 195; 53 Am. Dec. 357; Carson v. Godley, 26 Pa. St. 111; 67 Am. Dec. 404. WATERS. - An owner cannot, by artificial means, discharge upon another's lands percolating water which has collected upon his premises; nor can he allow water to so collect and percolate as to injure the cellar, etc., of his neighbor's house: Note to Wheatley v. Baugh, 64 Am. Deo. 728, 729.
JOSHUA HENDY MACHINE WORKS v. AMERICAN STEAM BOILER INSURANCE COMPANY.
[86 CALIFORNIA, 248.]
INSURANCE-RIGHT OF ASSURed to SurrenDER POLICY AND COMPEL RETURN OF PREMIUMS. — If an insurance has been effected, and the perils insured against exist for any period of time, however short, the assured is not entitled to insist that the policy be canceled and part of the premium returned to him, by the common law, nor under a statute declaring that he is entitled to a return of the premium, when no part of his interest in the thing insured is exposed to the perils insured against, or that when insurance is made for a definite time, and he surrenders his policy before the expiration of that time, he shall be entitled to such proportion of the premium as corresponds with the unexpired time.
T. C. Van Ness, Haggin, Van Ness, and Dibble, and F. V. Bell, for the appellant.
J. N. E. Wilson and James M. Trout, for the respondent.
WORKS, J. This action was brought to cancel a policy of insurance, and to recover $194.46 as the ratable proportion of a premium paid thereon. Defendant's demurrer, on the ground of insufficiency of the facts stated in the complaint, was overruled, with leave to answer, which it failed to do. Judgment for plaintiff was thereupon entered, from which the defendant appeals. The defendant, on June 2, 1887, in consideration of a three-hundred-dollar premium paid by plaintiff, issued to the latter its policy of insurance, duly countersigned by its agents at San Francisco, whereby it insured plaintiff to the amount of twenty thousand dollars, for a period of three years from June 1, 1887, against loss or damage to property, whether owned by plaintiff or not, or for which plaintiff might be liable, in case of loss or damage resulting from the explosion of either or both of two steam-boilers situate on certain premises in San Francisco; and also against loss of human life or injury to person, resulting from the explosion of either or both of said boilers, for which plaintiff might be liable. Subsequently, on August 22, 1887, and prior to any loss or damage of any kind covered by the policy, plaintiff presented it to the defendant for surrender and cancellation, and requested defendant to accept the surrender of and cancel it. At the same time, plaintiff demanded the return of such proportion of the premium as corresponded with the unexpired term of the policy after deducting thirty per cent. The de
AM. ST. REP., VOL. XXI.-3