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8. PRACTICE.—THE FINDING that a person who had occupied
the relation of a surety, had offered to pay the debt for the pur-
pose of proceeding against his cosureties, and that such offer
was refused by the creditor, and that such person at the trial offered
to prove the solvency of the cosureties at the time or making such
offer and their subsequent insolvency, and that the evidence was ex.
cluded, is equivalent to a finding that they were so solvent, and sub-
sequently became insolvent. (O'Conor v. Morse, 155.)

See Appeal; Contempt, 4, 5; Instructions.

TROVER.
TROVER-CONVERSION.-If one buys personal property of
which symbolical delivery has been made, a third person's refusal to
allow the property to be removed, and a subsequent sale and deliv.
ery thereof by such third person, whereby the purchaser loses the
property, are wrongful acts, and constitute a conversion. (Kellogg
Newspaper Co. v. Peterson, 300.)

TRUST FUND.
See Corporations, 13.

TRUSTS.
1. TRUSTS-WHAT WORDS WILL CREATE.-A gift in a deed,
expressed to be for the “use and benefit" of another, is sufficient to
fasten a trust upon the conscience of the trust donee. (Randolph v.
East Birmingham Land Co., 64.)

2. POWERS OR TRUSTS must, in all cases, be construed accord.
ing to the intention of the parties, to be gathered from the whole
instrument. (Randolph v. East Birmingham Land Co., 64.)

3. TRUSTS-CONSTRUCTION OF, AS TO POWERS.-A court
of equity will never favor a construction that confers upon a trustee
absolute and uncontrollable powers. (Randolph v. East Birmingham
Land Co., 64.)

4. TRUSTS – DISCRETIONARY POWERS. -COURTS WILL
NOT INTERFERE with the exercise of discretionary powers by
trustees, where they are acting in good faith, without fraud or collu-
sion, and without selfish, corrupt, or improper motives; but they will
interfere where the exercise of discretion by trustees is infected with
fraud or misbehavior, or is mischievously and ruinously exercised,
or where they decline to undertake the duty of exercising discretion.
(Randolph v. East Birmingham Land Co., 64.)

5. TRUSTS-FAILURE OF COURTS WILL NOT ALLOW
clear trust to fail for want of a trustee; nor will they allow a trust
to fail by reason of any act or omission of the trustee. (Randolph v.
East Birmingham Land Co., 64.)

6. TRUSTS-DEED TO FATHER IN TRUST FOR JUS SON.-
Il a father purchases land for the "use and benefit” of his minor
son, and joins in the execution of a conveyance of the property,
made to himself as trustee for his son, which conveyance gives the
father power to manage and control the trust estate until the son
is twenty-one vears old, and, in the meantime, to use and appropriato
the rents, profits, and income therefrom; to lease, mortgage, or sell
the same; and to reinvest the proceeds in such a manner as he may
think best for his son's use and benefit, the father becomes a trustee
for the son, assuming the same responsibilities and obligations that
a third person would, if the land were conveyed to him by a deed
creating the same trust. The powers so conferred are not purely
discretionary, but create a trust, coupled with an interest, requiring

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the trustee to perform active duties, and a court of equity will
Interfere to prevent a wrongful exercise of such duties. (Randolph
v. East Birmingham Land Co., 64.)

7. TRUSTS-INVESTMENTS.-If there are no directions in ad
instrument of trust, or rules of court, or statutory provisions in rela.
tion to investments, they must be governed by sound discretion and
good faith. In the absence of statutory direction, or specific author-
ity, trustees are not permitted to invest trust funds in the stock
or shares of any private corporation, although the stock is cousidered
good by discreet business men who evince their confidence by invest-
ing their own funds therein; and no court can sanction such invest.
ments where they are against the policy of the state and expressly
forbidden by its laws. (Randolph v. East Birmingham Land Co., 64.)

8. TRUSTS_INVALID SALE OF LAND-INVESTMENT.-A
trustee having authority to lease, mortgage, or sell land held in
trust, and to reinvest the proceeds, but who is not authorized by the
trust deed to invest the trust funds in stock or shares of private
corporations, cannot sell the land so held in trust to a land company
and take in payment therefor stock of such company, especially
where such investments, by trustees, are forbidden by the laws of
the state. Such a sale is a violation of good faith on the part of
the trustee, and is void. (Randolph v. East Birmingham Land Co.,
64.)

9. TRUSTS-INVALID SALE OF LAND-TITLE-BONA FIDE
PURCHASERS WITHOUT NOTICE.-If a trustee sells land to a
private corporation in violation of his trust, and such land is after-
ward sold at a judicial sale to persons who had knowledge of the
conditions of the trust and of the illegal sale to their vendor, such
parties are not bona fide purchasers for value without notice, and,
as against the cestui que trust, acquire no right to the land. (Ran-
dolph v. East Birmingham Land Co., 64.)

See Chattel Mortgages, 3; Powers.

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VENDOR AND PURCHASER.
1. VENDOR AND VENDEE-CONTRACT TO CONVEY-SUB-
SEQUENT PURCHASERS.-Persons acquiring title to land with
notice of a pre-existing contract of sale made by their vendor are
bound thereby to the same extent as such vendor. (Tate v. Pensacola
Gulf etc. Co., 251.)

2. VENDOR AND VENDEE.-ACTUAL POSSESSION is notice
to all the world of whatever rights the occupant really has in the
premises, and a vendor cannot convey to any other person without
affecting him with such notice. Actual knowledge of such posses-
sion on the part of those sought to be charged with such notice is
not necessary.

Notice in such cases a legal deduction from the
fact of possession. (Tate v. Pensacola Gulf etc. Co., 251.)

3. VENDOR AND VENDEE-PURCHASER'S DUTY TO IN-
QUIRE INTO TITLE.-If a party other than the grantor is in pos-
session of land, it is the purchaser's duty to inquire into the title
thereto, and the presumption of law is, that upon such inquiry he
ascertains the true state of the title. (Tate v. Pensacola Gult etc.
Co., 251.)

See Notice; Specific Performance.

VENIRE.
See Forgery, 2

VERDICT.
See Appeal, 14-16; Indictment.

VIADUCTS.
Soo Mandamus; Municipal Corporations, 21-23; Police Powa, k

VICE-PRINCIPAL.
See Master and Servant, en

WAIVER.
Boe Attachment, 10; Insurance, 4, 5, 8-18, 20-27; Landlord and Trece

ant, 10.

WAREHOUSEMEN.

See Carriers, 10.

WARRANTY.
See Damages, 6; Sales, 6, 6, A

WATER COMPANIES.

See Statutes, 18.

WATERS.
1. WATERS AND WATERCOURSES.-A watercourse consists of
water flowing in a certain direction by a regular channel having a
well-defined and substantial existence, but the water need not flow
continually—the stream may be dry at times. (Tampa Water Works
Co. v. Cline, 262.)

2. WATER AND WATERCOURSES.-NAVIGABLE STREAMS
include all those wbich afford a channel for useful commerce, and
such streams are public highways by common right. (Farmers' etc.
Mfg. Co, V, Albemarle etc. R. R. Co., 606.)

3. WATER AND WATERCOURSES-NAVIGABLE STREAMS
-OBSTRUCTION-DAMAGES.-If a navigable stream is obstructed
by being crossed by a bridge without a draw therein for the passage
of boats, the damage to a boatowner who is compelled to unload his
cargo, but who, instead of procuring another conveyance, leaves the
cargo exposed to the elements, is the value of the boat for the time
It is delayed, and reasonable wages paid to the crew, but he is not
entitled to recover for injury to the cargo from exposure, or for the
cost of unloading or loading it. (Farmers' etc. Mfg. Co. V. Albemarle
etc. R. R. Co., 606.)

4. WATERS AND WATERCOURSES-OBSTRUCTION OF NAV.
IGABLE STREAM-SPECIAL INJURY-DAMAGES.-The obstruc-
tion of a navigable stream by the construction of a bridge across It
without any draw to permit the passage of boats renders the wrong.
doer liable to a boatowner whose business requires him to pass the
bridge with his boat, and it is immaterial whether such boat is
licensed, or does business as a common carrier, or whether other in.
dividuals own boats engaged in navigating the stream. (Farmers'
etc. Mfg. Co. v. Albemarle etc. R. R. Co., 606.)

5. WATERSAND WATERCOURSES-NAVIGABLE STREAMS.
A fresh water stream above tide water is navigable and a publlo
highway only when it is susceptible of being used in ordinary con-

dition, for a highway of commerce, over which there may be trade,

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travel, transportation, or valuable floutage for a season or consider-
able portion of the year. All fresh water streams which have the
requisite volume of water only occasionally and for brief periods,
as the result of freshets, are unnavigable and private property. (Bay.
zer v. McMillan Mill Co., 133.)

6. WATERSAND WATERCOURSES_NAVIGABLE STREAMS.
A fresh water creek above tide water not declared public by law,
not navigated by boats, keels, or lighters of any kind, and not
utilized for any kind of transportation of commodities, except saw.
logs and lumber, and for this only at spasmodic and occasional
periods in the winter or spring as the result of freshets, is not a
navigable stream, but is private property, which may be obstructed
without liability for damages. (Bayzer v. McMillan, 133.)

7. WATERS, NAVIGABLE-STATE CONTROL OVER SUB-
MERGED LANDS.-In this country, each state, subject to the limi.
tations of the federal constitution, has absolute control of all navi.
gable waters, within its limits. The disposition of lands lying under
such waters is a question for the several states to determine for
themselves; and each state has power to convey lands so submerged,
and held by the state, when the conveyance will not impair the re-
maining public interest in the lands and waters. (People v. Kirk,
277.)

8. WATERS-NAVIGABLE LAKES-LEGISLATIVE RIGHT
TO EXTEND DRIVEWAY.-Under the legislation of Illinois, a
board of park commissioners is authorized to extend a driveway over
and upon the waters of Lake Michigan, where the rights of pariga-
tion, of commerce, and of fishery are not taken away, or materially
infringed, but remain substantially in the public as before. (People
V. Kirk, 277.)

9. WATERS_NAVIGABLE LAKES-LEGISLATIVE RIGHT
TO APPROPRIATE SUBMERGED LANDS.-After a board of park
commissioners has, under statutory authority, lawfully extended a
driveway over and upon the waters of Lake Michigan, the sub-
merged lands lying between the shore and the inner line of such ex.
tension shall be appropriated, as directed by the statute, to paying
for the improvement, and to this end, the board is authorized to sell
and convey such lands. (People v. Kirk, 277.)

10. WATERS-NAVIGABLE LAKES-SALE OF SUBMERGED
LANDS WITHIN LINE OF IMPROVEMENT.-Under a statute au-
thorizing a board of park commissioners to extend a driveway over a
navigable lake, to appropriate the submerged lands lying between
the shore and the inner line of such extension toward defraying the
cost of the improvement, and to sell and convey such lands to ac.
complish that end, the board is not bound to sell such lands for
cash, but has power to convey them directly to shore owners, who
have performed work on the improvement, 1f the board thereby re-
ceives their full value. (People v. Kirk, 277.)

11. WATERS-TITLE TO LAND UNDER NAVIGABLE LAKES.
The title to, and right of dominion over, lands covered by Lake Michi.
gan, within the boundaries of the state of Illinois, is held by the
state, in its sovereign capacity, in trust for the people of the entire
state, for the purposes of navigation and fishery; and the govern.
mental powers of the state over such lands cannot be relinquished or
given away. (People v. Kirk, 277.)

12. WATERS-LEGISLATIVE POWER OVER NAVIGABLE
LAKES.-The legislature, which represents not only the state, that
holds the title to land under navigable lakes, but also the people,
for whose use the title is held, possesses the sovereign power of par.
llament over the waters of such lakes and the submerged lands cop.
ered by the same. (People v. Kirk, 277.)

13. WATERS AND WATERCOURSES–RIPARIAN RIGHTS.-A lower proprietor or owner of land bordering on a surface stream of water flowing in a well-defined channel has, in the absence of any modification of relative rights by contract or prescription, no right to throw the water back on him above, and is subject to the burdeu of receiving it from the proprietor above substantially undiminished in quantity and uncorrupted in quality, and this right arises, not from any supposed grant or from prescription, but ex jure naturae and as an incident to the soil. (Tampa Water Works Co. v. Cline, 262.)

14. WATERS AND WATERCOURSES–RIPARIAN RIGHTS.The rigbt to the benefit and advantage of the water flowing in a welldefined channel past one owner's land is subject to similar rights of all the proprietors on the bank of the stream to the reasonable enjoyment of the natural bounty, and it is therefore only for an upauthorized and unreasonable use of the common benefit that any one owner has a just cause to complain. (Tampa Water Works Co. 1. Cline, 262.)

15. WATERS AND WATERCOURSES. RIPARIAN RIGHTS of an owner to the ordinary use of water flowing in a well-defined nat. ural channel past his land, extends to the supplying of natural wants, including the use of the water for domestic purposes of home or farm. (Tampa Water Works Co. v. Cline, 262.)

16. WATER AND WATERCCOURSES – RIGHT OF APPRO. PRIATION.—The fact that an individual or a corporation has a contract with a city to supply its inhabitants with water, and has ex. pended large sums of money in the erection of a plant, does not confer any additional rights to appropriate water flowing in a natural and well-defined channel through the lands of different owners. (Tampa Water Works Co. v. Cline, 262.)

17. WATER AND WATERCOURSES-RIGHT OF LANDOWNER-POLLUTION.-An owner has the right to take rock out of, or otherwise use, his own land as he desires, provided that, in so doing he does not divert or pollute a natural stream of water flowing through his land. (Tampa Water Works Co. v. Cline, 262.)

18. WATER AND WATERCOURSES SUBTERRANEAN STREAMS.-In the absence of affirmative proof that subsurface wa. ter is supplied by a definite flowing stream, the presumption is that it comes from ordinary percolations. (Tampa Water Works Co. v. Cline, 262.)

19. WATER AND WATERCOURSES-SURFACE AND SUBTERRANEAN STREAMS.--The only difference in the application of the law to surface and subterranean streams is in ascertaining the character of the streams, and if underground currents of water flow in defined and known channels, the rules of law which govern the use of similar streams flowing upon the surface are applicable to them, but if it does not appear that the waters which come to the surface are supplied by a definite flowing stream, they are presumed to be formed by the ordinary percolations of water in the soil. (Tampa Water Works Co. v. Cline, 262.)

20. WATERS AND WATERCOURSES-RIGHT TO PERCOLATING WATER.-The owner of land through which subsurface water, without any distinct, definite, and known channel, percolates or filters to the land of another, is not prohibited from digging into his land and approprlating the water to any useful purpose of his own, though by so doing the water may be entirely diverted from the land to which it would otherwise naturally pass, but if such subterranean water has assumed the proportions of a well-defined and constant stream, the owner of the land through which it flows is not authorized to divert it, or improperly use it, any more than if the stream ran upon the surface. (Tampa Water Works Co. v. Cline, 262.)

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