WATERS AND WATER RIGHTS (Continued).

the relative rights of the parties to that water, and stipulate that the rights thereto may be determined in another action, subject to the claim that the first action is res adjudicata with relation thereto, the rights of the parties in and to the water must be determined in a subsequent case, as far as the statute of limitations is concerned, by the same rules that would have obtained had the first suit not been brought. (Id.)

4. APPROPRIATION OF WATERS FOR PUBLIC USE-COMPENSATION · LACHES OF RIPARIAN OWNER.-Where the five-year period of limitation has been allowed to elapse without any affirmative action by the riparian owner who claims that his water has been appropriated for public use, he is guilty of laches, and should not be permitted to assert his right to compensation after the lapse of that period, as against the public or the appropriator for a public use. (Id.)

5. RIPARIAN LAND- UNITING OF ADJOINING LAND IN

OWNERSHIP

-CHARACTER UNCHANGED.-Land adjoining riparian land does not by becoming united therewith in ownership become itself riparian, even though it may be accessible to, susceptible of irrigation thereby, and situate within the watershed of the stream. (Id.) 6. INJUNCTION-CONSTRUCTION OF GRANT.-In this action for an injunction prohibiting and restraining the defendant from taking from a canal owned by the plaintiff any water in excess of a stated amount, it is held the evidence sustains the finding that under the terms of the grant made to defendant by plaintiff's predecessor, which was of a right to water arising on certain lands, the right was not restricted to water having its source specified tract which had never in fact furnished any water, and that the grant had never been so construed or acted upon by the parties until shortly before the commencement of the action. (Gage Canal Co. v. East Riverside W. Co., 204.)

on

7. VERBAL AGREEMENT FOR DITCH-AGENCY FOR OWNERS EVIDENCE In this action to prevent defendant from interfering with a ditch running through his land and which furnishes water for irrigation of plaintiffs' lands, it is held from an inspection of the typewritten transcripts, the findings, and the opinion of the trial court that the third parties who entered into a verbal agreement with defendant's predecessor and plaintiffs for rights of way for the ditch were the agents of all the parties, securing from said predecessor the right to construct the ditch and supply water to the lands below, and communicated that consent to the owners of such lands, who, for the purpose of securing the benefits promised, joined in the construction and gave the right of way through their respective premises. (Service v. Bedros, 519.)

WATERS AND WATER RIGHTS (Continued).

8. TRESPASS CHANGING OF COURSE OF SEASONAL WATERS -ERECTION OF WOODEN STRUCTURE-CASTING OF WATERS UPON LANDS OF OTHERS COMMON ENEMY RULE INAPPLICABLE. The rule applicable to waters which are a "common enemy" cannot be invoked in favor of land owners who to prevent injury to their lands from seasonal waters from a canyon erected a wooden structure which turned the waters on to the lands of others, since the water not being in any sense flood water, the changing of its course and casting it upon other lands amounted to a trespass. (Thomson v. La Fetra, 771.)

9. COMMON ENEMY WATERS-APPLICATION OF RULE-The rule applicable to waters which are a "common enemy" has application only to flood waters in the strict sense, that is to say, to waters escaping because of their height from the confinement of a stream and running over the adjacent country. (Id.)

1. TIME OF TAKING EFFECT-GENERAL RULE.-Ordinarily a will speaks as of the time of the death of the testator or testatrix. (Estate of Rounds, 386.)

2. LEGACY TO SISTERS AND BROTHER "LIVING"-CONSTRUCTION-EVI

DENCE LEGATEES LIVING AT TIME OF DEATH. On this appeal wherein the whole question presented turned upon the interpretation of the word "living" as used in the clause of a will giving "To each of my sisters and brother living five hundred ($500) dollars," it is held the evidence does not indicate the intention of the testatrix to use the word "living" as of the date of the execution of the will.

(Id.)

3. WORDS OF SURVIVORSHIP-RELATION TO TIME OF DEATH.-Words in a will referring to survivorship, simply, relate to the time of the testator's death. (Id.)

4. ESTATES OF DECEASED PERSONS-WORDS IMPOSING CONDITION UPON BEQUEST-ADDRESS TO PARTICULAR PERSON UNNECESSARY.-Where words are used which dispose of property or impose a condition upon a bequest given elsewhere in a will, they need not be addressed to anyone. It is enough that they show the intent and will of the testatrix regarding the property or legacy. (Estate of Shirley, 400.)

5. FORFEITURE CLAUSE-WORDS NOT AFFECTING CLEAR BEQUEST-RULE INAPPLICABLE. The rule that a clear and distinct bequest in a will cannot be affected by any other words not equally clear and distinct in another part of the will, is not applicable to a provision in a will wherein the words are entirely clear and distinct as an expression of the will of the testatrix that if any legatee or

WILLS (Continued).

devisee shall undertake to contest the will the legacy given to such person shall be thereby forfeited. (Id.)

6. CONSTRUCTION OF FORFEITURE CLAUSE DISPOSITIVE PROVISION.A clause in a will following the residuary bequest providing that "Should any one to whom I have made a bequest of any portion of my Estate undertake to break my Will I desire such persons bequest becomes void and be set aside," is a dispositive provision of the will, and not a mere expression of the wish or desire of the testatrix, and a violation of the condition works a forfeiture of the bequest.

(Id.)

7. ESTATES OF DECEASED PERSONS-CONTINGENCY OF DEATH PRIOR TO TESTATRIX-INTESTACY.-A will entirely written, dated, and signed by the hand of the testatrix and almost entirely written in the Danish language requesting that in the event of her death the will be sent to her brother, and that should he be dead, then her brother's daughter and her deceased sister's daughter should together sell all the property of the testatrix and divide it equally between the children of her deceased sister, and then providing for two specific money bequests to a niece and to a friend, makes the division of the property among the children of the deceased sister conditional upon the death of the brother before the death of the testatrix, and where the brother survived the testatrix the two specific bequests constituted the only effective disposition made by the will and as to the remainder of the estate the testatrix died intestate. (Estate of Hoytema, 430.)

8. CONSTRUCTION OF WILLS-INTESTACY NOT FAVORED.-Constructions of wills leading to intestacy, total or partial, are not favored and will be rejected when the language used reasonably admits of a construction that renders the will effective as to all the property of the decedent. (Id.)

9. INTENT OF TESTATOR-LANGUAGE OF WILL.-While the language used in a will must be liberally construed with a view to carrying into effect what the will as a whole shows was the real intent of the testator, this intent must be found in the language, taking into view in cases of uncertainty arising upon its face the cir cumstances under which it was made. (Id.)

10. CONSTRUCTION BASED ON CONJECTURE PROHIBITED.-Courts are not permitted, in order to avoid a conclusion of intestacy, to adopt a construction based on conjecture as to what the testator may have intended, although not expressed. (Id.)

11. TIME OF TAKING EFFECT.-Wills generally speak as of the date of the death of their makers. (Estate of Duffill, 748.)

12. PROVISION IN RESTRAINT OF MARRIAGE MARRIAGE BEFORE DEATH OF TESTATRIX-VOID PROVISION.-A provision in a will that in

WILLS (Continued).

case the son of the testatrix marries a certain woman, the trustee named in the will shall pay to him thereafter annually a less sum than the amount therein before named, operated only upon the trustee, and where the son married such woman before the death of the testatrix, the contingency upon which such inhibition was to become effective was removed.

(Id.)

13. ESTATES OF DECEASED PERSONS-TRUST UNDER WILL-ACCUMULATION OF INCOME BEYOND MINORITY-VOID PROVISION-GIFT OF INCOME VALID.-Direction in a trust created under a will for accumulations of income from the trust estate beyond the age of minority of the beneficiary is void under section 723 of the Civil Code, but the gift of the income is valid under section 733 of such code. (Id.)

See Estates of Deceased Persons, 3, 6, 15, 17.

WORKMEN'S COMPENSATION ACT.

1. FLAGMAN EMPLOYED BY TWO RAILROAD COMPANIES-RELATIONSHIP OF EMPLOYER AND EMPLOYEE AS TO EACH COMPANY.-Where one railroad carrier engaged indistinguishably in intrastate and suburban traffic employed a flagman at a crossing, and another rail. road carrier engaged solely in intrastate commerce and operating its road on parallel tracks paid one-half of the monthly salary of such flagman, the flagman acting for both carriers, the relation of employer and employee existed between each carrier and the flagman, within the meaning of the terms as defined in the Workmen's Compensation, Insurance and Safety Act. (Terminal Rys. v. Industrial Acc. Com., 121.)

- RIGHT TO

2. KILLING OF FLAGMAN JURISDICTION OF COMMISSION AWARD COMPENSATION AGAINST INTRASTATE CARRIER. Where a flagman thus employed was. killed by a train of the interstate carrier at a time when a train of the intrastate carrier was also arriving, the jurisdiction of the Industrial Accident Commission to award compensation was not lost as to the intrastate carrier by reason of the federal employer's liability law, which excluded the jurisdiction of the commission to award compensation against the interstate carrier.

(Id.)

3. JURISDICTION OF COMMISSION-EXCLUSION BY FEDERAL EMPLOYERS' LIABILITY LAW-EXTENT OF.-The jurisdiction of the Industrial Accident Commission is excluded by the federal employers' liability law only as to such matters as are covered by the act, and necessarily the federal act cannot be held to affect the rights under the state law of an employee of a common carrier by railroad in no way engaged in interstate commerce, or the rights of his dependents in the event of his death, to obtain compensation under such state law on account of injuries or death occurring in the

WORKMEN'S COMPENSATION ACT (Continued).

.

course of his employment by such carrier, and arising out of such employment. (Id.)

4. RELEASE OF INTERSTATE CARRIER-RIGHT TO COMPENSATION UNDER STATE ACT.-A written release executed by the surviving wife of a flagman thus employed to the interstate carrier releasing it from all claims and causes of action on account of the death of her husband, is invalid, in so far as any claim under the Workmen's Compensation Act is concerned, where it did not provide for the payment of full compensation in accordance with the provisions of the act, and was never approved by the commission. (Id.) 5. HEARING BEFORE REFEREE OF COMMISSION-NOTICE AND REPRESEN TATION-RIGHT OF INSURANCE CARRIER.-Where a proceeding for compensation under the Workmen's Compensation Act is heard before a referee of the commission without notice to the insurance carrier and without its being represented, and at the hearing testimony directly controverting the contention of the carrier is presented without any opportunity for cross-examination, the commission should reopen the case to permit such cross-examination and the introduction of counter-testimony, unless there is no possibility of such examination or testimony changing the result. (Ocean A. & G. Corp. v. Industrial Acc. Com., 389.)

6. ATTEMPT TO RESCUE CHILD-BACKING OF AUTOMOBILE INJURY IN COURSE OF EMPLOYMENT. Under the Workmen's Compensation Act, an employee was injured in the course of his employment, where he, at the time of the accident, was at his employer's barn stabling horses in the course of his employment, and was injured in an attempt to rescue a child that was in danger of being run down on his employer's premises by an automobile driven by the president of his employer, who was there on the employer's business. (Id.)

7. HEARING WITHOUT NOTICE TO CARRIER - REOPENING OF CASEPROPER REFUSAL.-An insurance carrier who was not present or represented or given an opportunity to be present or represented at a hearing before a referee of the commission, at which evidence was introduced, is not entitled to an annulment of the commission's award in order to reopen the matter and permit the carrier to controvert such evidence, where a rehearing before the commission was not asked for that purpose. (Id.)

8. DEPOSITION OF PHYSICIAN-EXTENT OF INJURIES—ADMISSIBILITY AGAINST EMPLOYER AND CARRIER.-Under section 60, subdivision (a), of the Workmen's Compensation Act of 1917 (Stats. 1917, p. 831), providing no award shall be invalidated because of the admission of any evidence not admissible under the common law or statutory rules of evidence and procedure, a deposition taken in an action at law to which neither the employer or insur