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24. Extent of appropriation a question for jury. Nevada Water Co. v. Powell,

4, 254

4, 673

25. Rights of subsequent appropriators of water. Proctor v. Jennings, 4, 285; Barnes v. Sabron,

26. Conflicting mining and water claims—Prior appropriation controls. Jennison v. Kirk,

4, 504

27. Prior appropriation.-If the ditch owner divert the natural water of the stream as well as that brought into it by him, then the prior appropriator would have a cause of complaint. Hoffman v. Stone,

4, 520 28. Subsequent locators above and below. Hill v. King, 4, 533 29. In subordination to prior rights, subsequent appropriators may make such use of the channel of the stream as they think proper, and they may mingle its waters with other waters, and divert an equal quantity as often as they choose. Butte Co. v. Vaughn,

4,553

30. The right secured by priority of appropriation should be regarded as perfect as if secured by prescription or express grant; the exercise of the right does not depend on the source of the right. Kidd v. Laird,

31.

Change in use or place of user. Davis v. Gale,

4, 571 4, 604

32. Prior appropriation-Ditch and mining claim.-The case of conflict between a ditch and a mining claim is peculiar. The rule of prior appropriation can not be strictly applied. The governing maxim is rather sic utere tuo ut alienum non lædas. And it may be doubted whether a ditch, although recognized as real estate, is to be regarded with the same favor by a court of equity. Clark v. Willett, 4, 629 33. Insufficient diligence in constructing ditch lets in interveners. Ophir Co. v. Carpenter,

4, 640

34. Facts not amounting to reasonable diligence. Id. 35. Date of appropriation, where the work of appropriation is not prosecuted with diligence, although finally completed, is from the completion, and not from the original commencement of the enterprise. Id.

36. Measurement of water appropriated is to be made in the ditch or flume at its point of smallest capacity. Ophir Co. v. Carpenter, 4, 653 Test of ditch capacity. Barnes v. Sabron,

37.

4,673 38. Division of water by intervals of time.-If A has appropriated water during certain days in the week, or during a certain number of days in the month, B may appropriate it and become entitled to its use on the other days of the week or month. Id.

39. Liberal construction.-Notices of the appropriation of water are to be liberally construed. Osgood v. El Dorado M. Co., 5, 37 40. Second notice of appropriation is no abandonment of first.— Such posting is an assertion of the claim. Id.

41. Presumption of grant to first appropriator.-In determining controversies for the possession of mining claims, water privileges and the like, the court proceeds upon the presumption of a grant from the government to the first appropriator of such claims and this presumption is held absolute in all such controversies. Coryell v. Cain, 5, 226

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42. The right of the miner is based on appropriation, and the appropriator of the ledge is entitled to the rock broken from it, whether on or below the surface. Brown v. '49 and '56 Mining Co.,

9, 600

43. Extent of title of appropriator.—A prior appropriation of the public domain establishes a quasi private proprietorship, which entitles the owner to be protected in its quiet enjoyment against all the world but the true owner, except in the case of agricultural and grazing lands, as against the privileges granted to miners. Tartar v. Spring Creek Co., 14, 371

44. Mining claim subject to prior vested water rights. Irwin v. Phillips, 15,179

See DITCHES; WATER.

APPURTENANCES.

1. Miners' houses are ordinary and proper appurtenants to coal mines, and when on the premises and included in the lease, are part of the estate, and all the remedies of a landlord attach to them, even without express stipulation. Spencer v. Kunkle,

2, 18

2. Description.-A sheriff's deed purported to convey certain property, known as the "Monitor claims," together with appurtenances: Held, that the mere fact that the Monitor company purchased the Ohio Water Ditch and the water rights appurtenant thereto, would not constitute them appurtenances of the "Monitor claims." Quirk v. Falk, 2, 19

3. Ore banks passed as appurtenances. Grubb v. Grubb, 7, 226 4. Omission of "appurtenances."-Enumeration of incidents of real property which pass without the word. Wright v. Chestnut Co., 12, 528 5. A right of way can be used by the owner of the dominant tenement only to land to which it is appurtenant. Coleman's Appeal, ARBITRATION.

Williams v. Schmidt,

14, 222

1. Action by part of the board. 2, 23 2. Notice to parties such that they can be heard is essential to the regularity and validity of the action of arbitrators, even where the body of arbitrators is organized according to the agreement of the parties. Id.

3. Arbitration clauses in deeds are not binding on the parties, so as to oust the jurisdiction of the court. Mexborough v. Bower, ASSAY.

Weist v. Grant,

1. Mines sold on report of assayer. 2. Ore contract construed as to test of assay value. Schwartz,

2, 92

2, 28

Kennedy v. 2, 679

3. Difference in assays.—A refusal by defendant to adjust a difference in the assays as provided in the contract, would justify the court in adopting the plaintiff's assay if found to be correct. Neither party ought to reap a benefit by a failure to comply with the terms of the contract. Id.

4. Assays subsequent to location tend to prove vein to have been discovered prior to location. Southern M. Co. v. Europa M. Co.,

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5. Ore contract calling for battery assay to fix value of ore.-Incorrectness of assay may be shown by any competent testimony to true value of ore. Phipps v. Hully,

15, 350

6. The object of an assay is to give the true value of the ore, and the assay called for in the contract may be shown to be erroneous by assays otherwise taken, and by the clean-up. Id.

7. But if the assay be correct it controls the clean-up on a percentage contract. Id.

ASSESSMENT.

1. Forfeiture of stock-Ejectment no remedy. Smith v. Maine Boys' Tunnel Co.,

See PERSONAL LIABILITY; STOCK. ASSIGNMENT.

13, 460

1. Sale of chose in action.-The owner of slag can not sell and transfer a good title to it, when it is adversely possessed by another. While the subject of action it can not be sold. McGoon v. Ankeny, 2. Assignment to escape contribution. Mexican Co., In re,

1,9 2,36

3. Status of assignor, to the contract, after assignment. Myers v. South Feather Riv. Co.,

2, 541

4. Effect of assignment of contract, as collateral. Id. 5. Payment to assignee.—The holder of a contract assigned generally to him as collateral for a debt may receive the payments on the same; and the payments are not limited to the amount secured; any further payment becomes a debt from the assignee to the assignor. Myers v. South Feather R. W. Co.,

4,566

6. Assignee may elect if the contract allows election. Id. 7. Assignment before garnishment.-The assignee of the fund has precedence. Walling v. Miller,

7, 166 8. A claim for trespass is assignable and the assignee may sue in his own name under section 4 of the Practice Act. More v. Massini, 7, 455 9. An insolvent corporation may make an assignment by its directors, for the benefit of creditors. Ardesco Oil Co. v. North American Co., 8, 590 Beatty

10. An assignee is bound by the knowledge of his assignor. v. Gregory,

9, 234

11. An assignment after suit brought, in aid of a less formal assignment made before suit, is inadmissible. Skryme v. Occidental M. Co., 9, 371

12. Judgment and assignment distinguished.-An assignment is the act of the party, a judgment the act of the law. A judgment by confession can not affect a statute which provides for an equal distribution among all creditors in cases of assignments. Breading v. Boggs, 11, 236 13. Assignment of account by partner.-The assignee can not sue the company or attach its property if the partner could not. Bullard v. Kinney,

11, 343

14. A right of action growing out of fraud by the defendants is assignable.

Woodbury v. Deloss,

12, 144

ASSIGNMENT. Continued.

15. Right to damages does not pass by assignment of lease. Mine Hill Co. v. Lippincott,

12, 555

16. Suit by assignee of chose in action.-Can be prosecuted if founded in tort, without regard to the citizenship of the assignor. Van Bokkelen v. Cook,

ASSUMPSIT.

13, 421

party to satisfy the debt of another may be Cook ads. Linn,

1. Money paid by one recovered in assumpsit. 2, 49 2. Special agreement must be declared on.-" Ore tickets" as evidence.

Id.

3. An action for money had and received may be maintained where defendant has obtained money of the plaintiff which in equity and good conscience he ought not to retain; nor need he have received such money as the plaintiff's agent. Alderson v. Ennor,

8, 526 4. Title to realty disputed.—Assumpsit for money had and received will not lie for the price of sand taken and sold from a sand bar to which both plaintiff and defendant claim title. Baker v. Howell,

12, 73

5. Indebitatus assumpsit will not lie by a person claiming title against one who enters on land as a trespasser, to recover the issues and profits received by him. Irvine v. Hanlin,

14, 241

6. The tort, in the conversion of ore, may be waived, and assumpsit brought. Randolph Co. v. Elliott, ATTACHMENT.

3, 63

1. Garnishment-Uncertain interest.-W. was garnishee in a foreign attachment against H. Held, it being a fair presumption from the facts that H. was equally interested with others in the contract, that there could be a recovery, without first proving his exact interest. Weist v. Grant,

ATTORNEY AT LAW.

2,28

1. Attorney and client-Purchase by the former from the latter pendente lite can not be upheld in equity where it appears that the attorney, while negotiating for the purchase was, at the same time, and as part of the negotiation, advising his client as to the probable outcome of the litigation concerning it. Rogers v. R. E. Lee Co.,

2, 71

2. To sustain a sale from client to attorney, the burden is upon the latter, and he must show that he has protected the client's interests as he would have done in the case of his client dealing with a stranger. Id.

3. Attorney purchasing from client must make full disclosure to the latter of the names of all persons interested with him in the purchase, especially when some of the persons so interested are partners of the client in the subject-matter of the litigation. Id.

4. Parties interested with the attorney in such purchase.--If the sale is void as to the attorney, it is also void as to those interested with him as such partners. Id.

5. Attorney's contract with corporation-Power of officers--Presumptions. Hillyer v. Overman M. Co.,

VOL. XVI-21

3, 44

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6. Power of courts to pass upon authority of attorney. Clark v. Willett,

4, 628 7. Attorney's fee in an amicable partition proceeding may be taxed as a part of the costs. Stenger v. Edwards,

9, 3CS

8. Champertous contract not preventing recovery.-Plaintiff agreed with a solicitor to give him a portion of the profits arising from the successful prosecution of his suit to recover certain coal mines, upon being indemnified against costs: Held, that the contract amounted to champerty and maintenance, but that the plaintiff was not disqualified from suing where his title was vested in him before he entered into such contract. Hilton v. Woods,

10, 110 9. If the solicitor had sued in such case upon a title derived under such a contract, the bill would have been dismissed. Id. ATTORNEY IN FACT.

1. A verbal power is sufficient to authorize an agent to sign the name of the grantor to a bill of sale, where the grantor has first agreed in person with the grantee upon the terms. Patterson v. Keystone M. Co.,

See AGENT.

BAILMENT.

13, 171

1. Pledge of stuck held in trust-Quasi negotiability of stock. Thompson v. Toland,

2,77 2. Sale of pledge without notice not void as to strangers. Id. 3. Bailee without hire is not liable for goods carried free, if he exercises ordinary care. Fay v. Steamer New World, 2, 417

4. Facts of the case-Gold dust.-Where a merchant was in the habit of having gold dust carried gratuitously, the carriers refusing to carry it for hire or to become liable as common carriers, and a quantity of gold dust was stolen without their neglect or fault: Held, that the defendant was not liable therefor. Id.

5. Bailor has ordinarily the right to ratify, and demand the proceeds of the sale if bailee sells personal property without authority. Atkins v. Gamble,

13, 514

6. General rule as to remedy of bailor for conversion.-The owner of personal property which has been wrongfully converted, is ordinarily entitled to recover his specific property, or its value, and can not be compelled to accept other property of the same kind and equal in value in lieu of that which was converted. Id.

BARRIERS.

1. Barriers not required to support canal or prevent drainage therefrom. Wyrley Co. v. Bradley, 2,89 2. Case against lessee for removing barriers.-Case, in the nature of waste, will lie against a lessee of a mine for an injury to the reversion by the removal of coal barriers between it and an adjoining mine, although the act complained of might also be the subject of an action for a breach of an express covenant. Marker v. Kenrick, 3. Right of action in both lessor and lessee.—Bannon v. Mitchell, 2, 108

2,98

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