upon real property, and need not be commenced in the county where the land is situated. Beach v. Hodgdon et al. Cal. 610.

4. ACTION TO ENFORCE TRUST ON REAL AND PERSONAL ESTATE-PLACE OF TRIAL.— An action to enforce a trust on both real and personal estate, is not based on a lien, nor is it a suit to enforce a lien. Such action may be brought and prosecuted in the county in which the trustee resides, although the real estate subject to the trust is situated in another county. Le Breton, adm'r, etc. v. Superior Court. Cal. 142. 5. CHANGE OF VENUE-CONVENIENCE OF WITNESSES-DISCRETION OF COURT.-The ruling of the trial court on a motion for a change of venue on account of the convenience of witnesses, when the motion is contested on the same ground, will not be interfered with unless there has been an abuse of discretion. Bean v. Gregg. Col. 241.

6. CHANGE OF VENUE-TIME FOR FILING AFFIDAVIT OF MERITS AND DEMAND. -In an application for a change of venue the affidavit of merits and demand that the trial be had in the proper manner, filed by the defendant before he answers or demurs, are of no avail. Such affidavit and demand must be filed when the defendant appears and answers or demurs. Nicoll v. Nicoll. Cal. 219.

7. THE SAME-AFFIDAVITS OF MERITS MADE BY ATTORNEY.-Such affidavit may be made by the attorney for the defendant if it states a sufficient reason for the defendant's not making it. Id.

8. CHANGE OF VENUE When Defendants RESIDE IN DIFFERENT COUNTIES.-A change of the place of trial of an action, to the county in which most of the defendants reside, may be had, when all of the defendants who were served or have appeared unite in a demand for a change. Rathgeb v. Tiscornia et al. Cal. 375.

9. THE SAME-DISQUALIFICATION OF JUDGE AS AFFECTING RIGHT TO CHANGE.-The disqualification of the judge of the county, to which such change is demanded, to try the case, does not affect the right of the defendants to have it transferred to such county for trial. Id.

10. DEMAND FOR CHANGE OF VENUE-AUTHORITY OF ATTORNEY TO MAKE.-An attorney has authority, at the time he appears for the defendants, to sign a demand for a change of the place of trial. People ex rel. etc., v. Larue et al. Cal. 697. 11. CHANGE OF VENUE-AFFIDAVIT OF MERITS, WHAT MUST STATE.-An affidavit of merits, for use on a motion for a change of the place of trial, must aver that the affiant has fully stated the case to his counsel. An averment that he had fully stated his case and the facts constituting his defense in the action, is not sufficient. Id. 12. CHANGE OF VENUE-PREJUDICE OF JUDGE-AFFIDAVIT OF. —An affidavit for a change of venue on the ground of prejudice of the judge and of the inhabitants of the county, must state the facts showing such prejudice. A mere averment of preju dice is not enough. De Walt v. Hartzell. Col. 572.

VERIFICATION.

See CONTEMPT, 1.

WAIVER.

See INSURANCE, 4; Tender, 1.

WARD.

See GUARDIAN AND WARD.

WARRANTY.

1. BREACH OF WARRANTY OF TITLE-MEASURE OF DAMAGES.-The measure of damages in an action for breach of warranty of title to real estate is the value of the property at the time of sale, to be ascertained by the purchase price, with interest thereon and reasonable costs, if any were expended in defense of the title by the plaintiff. Hoffman v. Bosch. Nev. 36.

See SALE, 3.

WATER RIGHTS.

1. RIGHTS OF GRANTEE IN NATURAL STREAMS AT COMMON LAW IN CALIFORNIA.-Whatever limitations there may be upon the right which the grantee of a parcel of land acquires in a natural stream of water running over it, it is well settled, both by the

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common law and in this state, that the right itself is incident to the property in the land, and passes by a grant thereof, as an incorporeal hereditament. Lux et al. v. Haggin et al. Cal. 256, 275.

2. THE SAME-APPROPRIATION OF WATER-CONSTRUCTION OF CODE AND UNITED STATES STATUTES.-One who purchases land from the United States, or from this state, after the whole or some part of the water of a natural water-course, running through such land, has been appropriated by some one else, under the act of Congress of July 26th, 1866, or under the provisions of title VIII of the civil code of this state, takes such land subject to the rights acquired by such prior appropriator. Such provisions of the civil code only affect water flowing over lands owned by this state or by the United States. They do not affect the rights of riparian proprietors, (1) because it is expressly declared that they shall not; and (2) because an owner of land cannot be divested of any interest which he has acquired therein, except for a public use, and not then until just compensation has been made. Id.

3. THE SAME-APPROPRIATION OF WATER ON PUBLIC LAnd after DatE OF PURCHASE. — The right of a purchaser of public lands of this state to have a natural stream of water flowing thereon, at the date of his purchase, continue to flow currere solebat, is not affected by an appropriation of the waters of such stream, made subsequent to the date of his purchase, but prior to the date of his patent. Id.

4. RIGHTS OF RIPARIAN PROPRIETORS, AS BETWEEN THEMSELVES AND OTHERS.—A riparian proprieter has a right to the reasonable use of water, flowing in a natural stream over his land. What is a reasonable use, in any given case, depends upon But it is only as between riparian prothe facts and circumstances of that case. prietors that the question can ever arise. One, not a riparian proprietor, has no right to interfere, in any way, with the natural flow of a stream of water over a riparian proprietor's land. Id.

5. THE SAME ESTOPPEL IN PAIS-WHAT AMOUNTS TO.-A riparian proprietor is not estopped from disputing the validity of an appropriation of the waters of a stream flowing through his land, by the mere fact that he knew of the intention of the appropriator to divert such water before any was diverted, and of the construction of works for such purpose, but made no objection thereto before bringing an Id. action to prevent the same.

6. APPROPRIATION OF WATER-RIGHTS OF APPROPRIATORS.-As between two appropriators of the waters of the same stream, the one whose appropriation was first made, has the prior right to the use of such water. Simpson v. Williams. Nev. 580. WHICH APPROPRIATOR IS ENTITLED.-The 7. THE SAME AMOUNT OF WATER TO Id. amount of water to which a prior appropriator is entitled, is limited to the amount actually applied to the purpose for which the appropriation was made.

8. APPROPRIATION OF WATER-RIGHT OF, WHEN BEGINS RELATION.-In determining the time when a right to water by appropriation commences, the law does not restrict the appropriator to the date of his use of the water. The right to the use of the water relates back to the time when the appropriator begins his dam, ditch, flume, or other appliance, by means of which the appropriation is effected; provided, the enterprise is prosecuted with reasonable diligence. Under the circumstances of this case, a delay for one season, in using the water, was not unreason. able. Irwin v. Strait et al. Nev. 582.

See LARCENY, 7.

WILLS.

1. WILL CONSTRUED-TRUSTS-RECOMMENDATION AND REQUEST.-The will of David
D. Colton contains this provision: "I give and bequeath to my said wife, Ellen M.
Colton, all my estate, real and personal, of which I shall die seized, or possessed or
entitled to. I recommend to her the care and protection of my mother and sister,
and request her to make such gift and provision for them as in her judgment will
be best." Held, that this provision is not an absolute gift or bequest in trust for
the mother and sister of the testator—that is, not an imperative command to make
the provision for their support, but only a recommendation and request, leaving the
matter to the judgment and discretion of his surviving wife. Colton v. Colton.
(U. S. Cir. Ct.) Čal. 11, 18.

2. TRUSTS ARISING FROM PRECATORY WORDS IN WILLS.-The conditions necessary to
raise a trust from words of recommendation and request in a will discussed. Id.
3. RULES FOR CONSTRUCTION OF WILLS under the civil code of California stated and
applied.

Id.

4. DEVISE-CONSTRUCTION OF-Sale, and REPURCHASE of Land Devised.--A testator devises to his son "all that portion of real estate he has enclosed and now has in his possession, supposed to contain one hundred and forty acres, more or less." By other provisions of the will an intention was manifested to dispose of all the property the testator possessed. Subsequent to the date of the will he sold a portion of the land devised, and afterward bought the same back. Held, that the portion so sold and bought back passed to the son under the foregoing devise. In re Estate of Hopper. Cal. 368.

5. IDENTIFICATION OF LAND DEVISED EVIDENCE TO SHOW.-In an action by a devisee to recover the value of a tract of land distributed to him, but which had been lost to the estate of the testator by the inexcusable negligence of an executor, extrinsic evidence is admissible to identify the land described in the complaint by metes and bounds, with that described in the inventory and decree of distribution. Wheeler v. Bolton. Cal. 370.

6. JUDGMENT AFFIRMED for the reasons given in the opinion of the department, reported in 3 West Coast Rep., 426. Dunne et al. v. Dunne. Cal. 523.

WITNESSES.

1. IMPEACHMENT OF WITNESS-CONVICTION, HOW PROVED.-Under section 2051 of the code of civil procedure, a witness may be impeached by asking him if he has been convicted of a felony. The conviction of a misdemeanor, however, must be proved by the record of conviction. People v. Schenick. Cal. 77.

See NEW TRIAL, 4.

WRIT OF REVIEW.

See CERTIORARI.

DIGEST OF CASES

REPORTED IN

VOLUMES 1, 2, 3, 4.

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