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VENDOR AND PURCHASER- Continued.
That, even if the title to the fish could have been shown to be in dispute
the plaintiff would have had his action at law, and could not go into equity
and obtain the extraordinary remedy of an injunction.
2. Title by adverse possession· - a purchaser bound to accept it-Code of
Civil Procedure secs. 368, 369.] A good title by adverse possession is made out
by force of sections 368 and 369 of the Code of Civil Procedure, as against a
prior outstanding title in a grantee who has died leaving no infant heirs, by
one who, having entered into possession under a written instrument purport-
ing to be a conveyance of the premises, has been in actual continuous posses-
sion thereof for more than twenty years under such instrument under one
claim of title, and while in possession has erected and maintained buildings
and otherwise improved the land under claim of title.
Such adverse possession comes within the exception stated in section 368
of the Code of Civil Procedure, to the rule therein laid down, that mere pos-
session is presumed to be under the legal title, and that occupation by another
is deemed to have been in subordination to the legal title, "unless the premises
have been held and possessed adversely to the legal title for twenty years
before the commencement of the action.
A title thus acquired by adverse possession must be accepted by a purchaser
under a contract which provides that "the party of the second part shall not
refuse to take title to said premises by reason of the party of the first part
having, or claiming to have, title by adverse possession, unless that the party
of the first part does not hold a good title by adverse possession."
FREUND v. OSTRANDER...
Mortgage assumed by a grantee of premises the land is primarily liable -
payment by the grantee does not discharge the mortgage when it retains its lien.
See HUNTLEY v. RE VOIR.....
Deed given for $1,000 and a lease by the grantee giving a right to a recon-
veyance on its repayment constitute a mortgage-forfeiture is not favored -
Partition suit — merchantable title-what constitutes a release of a
dower right—an erroneous description· - amendment · an insufficient notice to
See DOREMUS v. DOREMUS....
Evidence of an oral agreement that land conveyed should revert to the
grantor is not rendered competent by the claim that such agreement formed the
consideration for the deed.
See HENNING v. MILLER...
omission of necessary parties interested in remainder · what
is not a merchantable title.
See CAMPBELL v. STOKES...
Foreclosure-a conditional sale-when it is not a mortgage.
See BOWERY SAVINGS BANK v. BELT..
VENUE-Actions against the city of New York place of trial of change
See MUNICIPAL CORPORATIONS.
(Look, also, under the name of the particular city.)
WAIVER Stipulation in a policy providing that in the case of a creditor it
should be void beyond his bona fide indebtedness, waived by the company by its
payment of the whole sum into court.
See ELSBERG v. SEWARDS......
Fire insurance. knowledge imparted to an agent at or before the issu-
ance of the policy, imputed to the company - waiver of a condition in a policy.
See FORWARD v. CONTINENTAL INS. Co....
Accident insurance— reinstatement of lapsed policy — remittance of pre-
mium by mail.
See COLVIN v. U. S. MUT. ACCIDENT ASSN..
WATER-COURSES — Injunction to prevent its diversion — not dependent
upon damage being shown by the riparian owner.] In an action brought by a
mill owner to recover damages for the diversion of water from the stream
upon which the mill is situated, and for an injunction to restrain the defend-
ant from continuing to divert the waters of the stream, the court may
properly refuse to submit to the jury the question whether the defendant,
by such diversion of the waters of the stream, essentially diminishes the
supply of water necessary for the use of the plaintiff's water-power and mill.
The right to the whole natural flow of the stream, whether used or not, is
a right guaranteed him by law, which the riparian owner cannot be divested
of, except by voluntary relinquishment on his part, or by condemnation
thereof, under the exercise of the right of eminent domain.
Semble, that the rights of riparian owners do not depend upon the use that
they may make of the water at any given time, and it does not lie with one
who invades those rights to say that the riparian owner has water enough
left, or would have enough, if he properly controlled or secured. it, for his
uses and purposes. GILZINGER v. SAUGERTIES WATER CO......
Dock owner-liability of, under an agreement that the water should be
of a certain depth neglect to ascertain its depth-— injury to a vessel coming to
the dock bow-on.
Municipal corporation — liability of, to a riparian neighbor for damages
resulting from the diversion of a stream.
See ORDWAY v. VILLAGE OF CANISTEO..
WATER SUPPLY- Water supplied by a stock company to an unincor-
porated village — pipes and hydrants in streets — rights of an abutting owner to
compel their removal.] The laying of pipes by an incorporated stock company,
under the provisions of chapter 566 of the Laws of 1890 (chap. 40 of the Gen-
eral Laws), to supply water to an unincorporated village, is, as well as in the
case of incorporated villages, for a public use or purpose; and this is so,
although no contract may have been made with the public authorities to supply
the village with water.
The streets of a populous uuincorporated village are to be deemed urban
streets and not ordinary rural highways, in respect to the extent of the ease-
ment which the necessities of the public may impose upon them.
A street in an unincorporated village is subject to use for the purpose of sup-
plying water to the inhabitants of the village; and the placing of pipes and
hydrants therein, under a permit from the town authorities, as provided by
sections 80 and 82 of chapter 566 of the Laws of 1890, by an incorporated
water-works company, required, under section 81 of that act, to furnish water
at reasonable rates to all consumers who may use the same, does not impose
an additional burden upon the fee of the street, although the water is not in
actual use under any contract with the public authorities, but only by indi-
vidual residents of the village who have contracted with the company.
Such a water-works company, not having a contract with the public author-
ities to supply the village with water, cannot exercise the right of eminent
domain ( 84, chap. 566 of 1890); but its right to use the streets of the village
for its pipes is based, not upon its right to condemn property, but upon the
doctrine applicable to the use of urban streets for such purposes.
As no additional burden is imposed upon the fee of the street by such use a
private owner of the fee in such a village street, subject to the public easement
therein, cannot maintain an action to compel the removal of water pipes and
hydrants so placed in the street in front of his premises without his consent.
WITCHER . HOLLAND WATER WORKS Co..
WHARVES - Dock owner - liability of, under an agreement that the water
should be of a certain depth — neglect to ascertain its depth—injury to a vessel
coming to the dock bow-on.
Mutual benefit association · who are the beneficiaries of a death
fund on a failure of designation —“legal heirs" construed — wife of deceased
right of, to dower.
-When a remainder, in the absence of words of present gift, does not
vest.] 1. Joseph Benjamin, by his will, directed that his residuary estate
should be divided into three parts, the income of one of which he gave to his
daughter for life, and of another to his son until he arrived at the age of thirty
years, when the testator gave him one half of his share absolutely, and the
income of the remaining half was given to the son until he reached the age of
forty, when he was to receive the principal thereof. The will made special
provision in the event that the son should die before his share had vested in
him, partially or wholly.
The remaining third of the residuary estate was given to the testator's wife
for life; and it was directed that, after her death, her share should be equally
divided, and one-half thereof should be added to the share of the son and one-
half to the share of the daughter, the share of each to be governed by the
same provisions as were contained in his will respecting the shares of the son
and of the daughter.
The son, who lived to be over forty years of age, but died before his mother,
had assigned, before his death, his interest in his mother's share of the estate
to C. Godfrey Patterson, who, upon her death, claimed an absolute right to
one-half of the mother's share.
In an action brought to obtain a construction of the will:
Held, that Patterson did not obtain any right because the son's interest in his
mother's share, which was controlled by the provisions regarding his own
share, gave to the son a contingent and not a vested interest.
That there were no words of present gift to the son, nor any words imply-
ing such a gift.
That the general intention of the will was that his share was not to vest
until he was entitled to receive the principal.
That, in order that his share should vest in him, it was necessary not only
that he should reach the age of forty but also that he should survive his
mother. DIMMICK . PATTERSON..
An unambiguous devise of a life estate not enlarged to a fee by other
provisions.] A testator, by his will, provided as follows: "I give and bequeath
to my four boys (naming them) the residue of my estate, share and share alike,
to have and to hold the same so long as they shall live, after paying my debts
and funeral expenses."
Held, that this provision of the will disclosed, in clear and unambiguous
terms, an intent to give life estates only to the sons.
That such life estates were not enlarged to an estate in fee by the use,
preceding portion of the same paragraph of the will, of the words "it is my
wish that all my property, both real and personal, shall be divided among my
children in the following manner."
That the two expressions were not inconsistent, it being possible to give full
force and effect to the part of the will preceding the limitation, and also to the
That the intent to give a life estate was so plainly expressed that the devise
could not be aided by the application of the provisions of the Revised Statutes
that the use of the word "heirs," or other words of inheritance, are not requisite
to create an estate in fee, and that a devise will pass all the estate or interest of
the testator, unless the intent to pass a less estate or interest appears by express
terms, or is necessarily implied in the terms of the grant.
3. Norby charging the devisee with payment of debts and funeral expenses.]
That an intent to give more than a life estate could not be inferred from
a provision attached to the devise requiring the devisees to pay the testator's
debts and funeral expenses. Id.
4. A devise to one for life, and after her death" to the children which she
now has, or may hereafter have living at the time of her death.”] Elias Smith
died leaving a will, by the fourth clause of which he gave to his daughter,
Phebe T. Lawrence, certain lands for life; and by a subsequent clause he
devised these lands, after her decease, "to the children which she now has,
or may hereafter have living at the time of her death, as tenants in common,
to them, their heirs and assigns forever."
When the testator died Phebe T. Lawrence was living and had three
children. She survived them all, but left grandchildren.
In an action of partition affecting the premises in question:
Held, that the grandchildren took the share of Phebe T. Lawrence.
That the testator contemplated a gift over to two classes of his daughter's
children: First. To those already in being who were to take in any event.
Second. To those born subsequently, and who, in order to take, must survive
their mother. SMITH . LAWRENCE...
5. Vesting of the estate.] That the remainders to the first class vested
when the life estate vested in Phebe T. Lawrence, and upon the death of those
in the first class passed to their children. Id.
Declaration of trust — effect of a reference thereto in a will — violation
of the statute against perpetuities.
Construction of a devise to a wife for life, and at her death to the testator's
heirs and wife's heirs, share and share alike.
See BISSON . WEST SHORE R. R. Co....
A definite devise in lieu of dower is not destroyed by a subsequent ambiguous
expression claim of dower in real estate devised to the dowercss.
Duty of the appellate court to order a jury trial on the reversal of a sur-
rogate's decree. what evidence is insufficient to raise a question of fact-evidence
as to mental capacity.
When the power of alienation is not suspended.
WITNESS-Sales — implied warranty — invisible defect—when not covered
by the warranty — expert testimony.
Evidence- — a witness must give the language of a conversation, not his
Indictment of a witness for the people by the same grand jury before which
he testified-immunity afforded him by section 79 of the Penal Code.
See PEOPLE v. SPENCER
Will—what evidence is insufficient to raise a question of fact — evidence