WARRANTY. 80. PARTITION, 2, 3; SALES, 24 WASTE See MORTGAGES, 13, WATERS. 1 APPROPRIATION-RIGHT TO MAINTAIN DAM.-An upper and prior owner of a dam in a natural stream cannot be enjoined by a lower dam-owner from penning back the water and raising a sufficient pond to supply his mill with water to run the machinery therein, although such use at times holds back the water so as to deprive the lower owner of a suffi. cient supply thereof. Mumpower v. City of Bristol, 902. 2. RIGHT OF DRAINAGE.-The right of the upper landowner to discharge water on lower lands is a general right of flowage, only in the natu ral ways, and in natural quantities. If he alters the natural condi. tions, so as to change the course of the water, or concentrate it at a particular point, or by artificial means, to increase its volume, he be comes liable for any injury caused thereby. Pfeiffer v. Brown, 660. & DRAINAGE AND LIABILITY THEREFOR.-A landowner who concentrates the water on his land, and by artificial means increases its volume and discharges it upon the land of a lower owner, is liable for the injury inflicted, unless it cannot be avoided by reasonable care and expenditure. If the expense of preventing damage practically counterbalances the expected profit then it is clearly unreasonable and beyond what the upper owner could be justly called upon to assume. If the expense, however large in amount, is small in proportion to the gain, he must pay it to prevent the damage, or make compensation for the injury done. Between these extremes the cases must stand upon their own facts under the general rule that if the expense required would so detract from the purpose and benefit of the contemplated act as to be a substantial deprivation of the right to use one's own property, then the upper owner is not liable for the injury inflicted, and, if the drainage can be prevented short of this, it is an injury for which damages may be recovered. Pfeiffer v. Brown, 660. DRAINAGE AND LIABILITY THEREFOR.—If a person, by drilling a well and pumping, increases the aggregate quantity of water discharged, concentrates it at an artificial point of flow, and changes its character from fresh to salt, whereby it becomes more injurious to the lower owner upon whose land it is discharged, he is liable for the injury if it could have been avoided by reasonable care and expenditure. Pfeiffer v. Brown, 660. WILLS. 1 CONSTRUCTION OF-CHILDREN, WHO ARE. - Part of a will provided as follows: "I give, devise, and bequeath all the remainder of my es tate, real and personal, in equal shares, to my children who may be liv. ing at the time of my decease, during their respective natural lives, and, after their respective deaths, in equal shares to their respective chil dren; and if any child shall have died previous to my decease, leaving children, the share of such child shall go to his or her children in equal shares; provided, that if any of my said children shall die after my decease, without children, the share of such child shall be cqually divided among my other children in the same manner as my other estate." This was construed to let in the grandson of one of the testator's daughters so that he took the share of his grandmother upon her decease, although his mother had died before the making of the will, and his grandmother had no other children. Douglas v. James, 817. 2. CONSTRUCTION-RIGHT OF Survivor to TaKE. —Under a will directing that testator's property be divided equally between two daughters, each to take upon arriving at a certain age, and that, if either died before arriving at that age, her children should inherit her share, but, if she left no issue, then the survivor of the daughters to take such share, does not give the surviving daughter any right to take the share of her sister who has died without issue after arriving at the age designated in the will. Keepers v. Fidelity Title etc. Co., 397. & UNDUE INFLUENCE to invalidate a will must be such as to control the mental operations of the testator, and amount to a substitution of the will of the dominant over the weaker mind. Fry v. Jones, 206. ▲ Whether UNDUE INFLUENCE HAS BEEN EXERCISED over a testator to the extent of producing a will in which the mind and purpose of another have been exercised must be left to the determination of the jury. They may not, it is true, determine it without evidence, but the courts will hesitate to declare that there is no evidence of such influence when the jury have found that it was present. If it appears that the contestant of her father's will had been regarded as a favorite daughter, until, in his old age, he was stricken with paralysis, and was left in the exclusive care and control of another daughter and her hus band; that out of their presence the father was kind and affectionate to the contesting daughter, but in their presence constrained and silent, and that on seeking to visit him she was by them excluded from his presence, and that they, in his presence, talked of her in a harsh and prejudicial manner, the verdict of a jury finding the existence of undue influence will not be set aside by the court. Fry v. Jones, 206. 6. TESTAMENTARY CAPACITY. - PARTIAL INSANITY sufficient to defeat a will is not some intermediate stage in the development of mental derangement, but a disturbance at some particular point of the mind not involving it at any other point. Such insanity is termed a delusion, and a will made under the influence thereof should not be admitted to probate. Taylor v. Trich, 679. 6. TESTAMENTARY CAPACITY.-DELUSION sufficient to avoid a will is a creation purely of the imagination such as no sane man could believea belief in the existence of something that does not exist; and the proof of the existence and influence of a delusion in any particular case may be found in the surrender of the will to imaginary directions regarded by the victim as the directions of God, or of spirits speaking to him from another world, or to the control of an impulse due to an imaginary state of facts. Taylor v. Trich, 679. 7. TESTAMENTARY CAPACITY. — PARTIAL INSANITY sufficient to avoid a a will is a derangement of one or more faculties of the mind which prevents freedom of action, and the question to be determined in any given case is whether the act under investigation was done upon con. sideration of existing facts, or under influence of a delusion that controlled the will of the testator and destroyed his freedom of action. Taylor v. Trich, 679. & TESTAMENTARY CAPACITY-DELUSIONS-EVIDENCE. If, in an action contesting the validity of a will, on the ground that the testator was laboring under a delusion at the time of its execution, but was other wise sane, the evidence should be confined to the issue as to the exist ence of such delusion, and evidence of the testator's general insanity, as to whether he was generally competent to make a will or was sane or insane, is incompetent and inadmissible. Taylor v. Trich, 679. 9. TESTAMENTARY CAPACITY-DELUSIONS.-If, upon the contest of a will, it is claimed that the testator was subject to a delusion, the question for the jury to determine is not the soundness of the peculiar views entertained by the testator, but whether they so impressed his mind, and were so incorporated into his mental constitution, as to control his judgment in regard to the use and disposition of his property so as to prevent him from perceiving or appreciating the ordinary duty he owes to his family, or their claims upon him as a father in that respect. Taylor v. Trich, 679. See DEEDS, 2; Devise: DistribUTION; ESTOPPEL, 3; EVIDENCE, 5. WITNESSES. 1. PRODUCTION OF WHEN WITNESS IS IN ANOTHER STATE.—That a witness is beyond the jurisdiction of the state is error in admitting his evidence given upon a former trial of the same generally a sufficient cause for not producing him. Hence, there is no case when it appears that, after such trial, he went to another state.. The question as to whether he is "inaccessible," within the meaning of the statute, is, under all the cir cumstances of the case, a question for determination by the trial court in the exercise of a sound discretion. Atlanta etc. Ry. Co. v. Gravitt, 145. 2 IMPEACHMENT OF WHEN HE DID NOT TESTIFY TO ANY MATERIAL FACT. — One who places a witness on the stand cannot complain that subse quently testimony was received to impeach such witness, though the fact that he testified to was not material. Davis v. Commonwealth, 201. IMPEACHING.-THE BAD CHARACTER OF THE WITNESS TWO YEARS BEFORE the time at which he testifies is admissible, because it may tend to throw light on his reputation at the time of the trial. Davis V. Commonwealth, 201. TRIAL-JURY MAY FIND STATE'S EVIDENCE TO BE TRUE IN PART and FALSE IN PART.—In a joint prosecution for burglary, where two of the defendants turn state's evidence, it is not for the jury to give full credence to all of their testimony or to wholly reject it. They may well find, upon a consideration of all the evidence, that a part of such testimony is true and the rest false. State v. Harrison, 864. 6. EXPERT EVIDENCE.-A PRACTICING PHYSICIAN is a competent witness to express an opinion as an expert touching the probable effect of wounds such as other witnesses have described, with reference to their adequacy and tendency to produce death, though he has never seen or examined the wounds himself. Von Pollnitz v. State, 72. RAILROAD COMPANIES-EVIDENCE AS TO CHECKING SPEED OF TRAIN.The mere opinion of a locomotive engineer that a heavy passenger train, made up of a locomotive and six cars, and running on a down grade at the rate of forty-five miles an hour, could be stopped within a distance of one hundred yards, is not sufficient to overcome the positive and uncontradicted evidence of the engineer and fireman upon the identical train that every thing was done which possibly could be done to stop it, and that, notwithstanding such efforts, it was not stopped within a distance of over four hundred yards, especially where such evidenos was strongly corroborated by that of experts in such matters. Atlanta de Ry. Co., v. Gravitt, 145. See DEPOSITIONS; HOMICIDE, 19; Trusta, & WRIT OF ERROR. 3851 * |
