208 



THE IRRIGATION AGE. 



Artesian wells are causing great changes in the ag- 

 ricultural prospects of Queensland and New South 

 Wales, Australia. Large tracts of land have become 

 valuable since the hidden reservoirs of water were 

 tapped. 



The Western Society of Engineers has undertaken 

 to make its library the nucleus of a central technical 

 library of reference of all divisions of engineering 

 and allied subjects. 



Recognizing the importance, both present and pro- 

 spective, of the irrigation interests of this country, it 

 is desired to make the literature of irrigation a spec- 

 ial feature of this library, the library to be accessible 

 under liberal rules to persons seeking technical in- 

 formation. 



To this end the society invites contributions to its 

 library of books and other publications, maps, draw- 

 ings, photographs, etc., pertaining to irrigation and 

 irrigation interests in all parts of the world. 



It is hoped this invitation will be generously re- 

 sponded to, and a valuable library on irrigation and 

 kindred subjects be built up in this city. Address 

 the Librarian, Charles J. Roney, 51 Lakeside build- 

 ing, Chicago. 



RECENT LEGAL DECISIONS. 



Assignment for the Benefit of Creditors. The assignment 

 law was not intended to affect or touch the general right of a 

 debtor to prefer creditors, but was destined for cases where the 

 debtor professedly did not desire or intend to make preferences, 

 but desires to convey it all to a trustee for a ratable payment to 

 all, a simple and convenient means to effectuate such purpose is 

 thus provided. It then provides that a debtor so professing to 

 turn over all his property for the benefit, proportionately, of all 

 his creditors, cannot use such assignment to accomplish an in- 

 consistent purpose. He cannot professedly use the Taw and the 

 assignment for one purpose, but actually use for it another; not 

 because he has no right to prefer particular creditors, but be- 

 cause to do so under such circumstances would be a fraud upon 

 the law. He may make a general assignment or not, as he 

 chooses, but if he uses the law at all he must do it in good faith, 

 and conform to its terms and requirements. He must "use as 

 not abusing " it. Of course it is not indispensable that in making 

 such assignment the debtor use the very terms of the statute, but 

 it is indispensable that his acts be such as to indicate his inten- 

 tion to take advantage of, and put himself and his property 

 under protection of, the statute permitting and regulating a gen- 

 eral assignment by a debtor for the benefit of his creditors; and 

 any judicial construction which, against the debtor's will and 

 design, forces his property within the range of the general as- 

 signment law, and compels its disposition thereunder, would 

 reverse the policy of the law, and make the assignment an invol- 

 untary instead of a voluntary one. 



Sandwich Manf'g Co. v. Max. (Supreme Court of South Da- 

 kota.) 58 N. W. Rep. 14. 



Creation of Easement by Flo-wage of Water. When a lot 

 owner constructs a ditch, by which water, which before has run 

 upon and over his land, is conducted to a pond in the rear part of 

 the lot, in order to relieve the front part of the lot from the flow 

 of water, he creates an easement in favor of the front part of the 

 lot and imposes a servitude on the rear part; and on the pur- 

 chase of the rear and front parts by different persons, with notice 

 of such easement and servitude, the grantee of the rear part 

 cannot obstruct the ditch so as back the water upon the front 

 part. 



Sharpe v. Scheible. (Supreme Court of Pennsylvania,) 29 At. 

 Rep. 736. 



The Supreme Court of Oregon holds that a prior appropriator 

 of water for irrigation purposes abandons his right to increase 

 the appropriation by failing for thirteen years to increase the 

 area cultivated, during which time subsequent rights have accrued. 

 The right of appropriation depends upon the application of the 

 water to the intended use, and not upon the capacity of the irri- 

 gating ditch. An appropriation of tne waters of a stream to a 

 beneficial use is an appropriation of its tributaries. 



Low v. Rizor. 37 Pac. Rep. 82. 



Liabilities of Express Companies. The agent of an express 

 company induced a Dank by fraud to send money to fictitious 

 firm in another city, and the express company received and re- 

 ceipted for the money, and shipped it to such city where the 



agent embezzled it. The money sent was constructively in the 

 hands of the express company, and could be recovered from it by 

 the bank. 



Southern Express Company v. Jasper Trust Company. (Su- 

 preme Court of Alabama.) 14 So. Rep. 546. 



Implied Covenants of Title. Where one leased lands on which 

 were springs, the water from which flowed on the land W., who 

 had the sole title to the water by original appropriation for irriga- 

 tion. It was held that the general covenant of title implied l)y 

 the words "lease and demise," used in the lease, was limited by 

 a covenant that the lessee should quietly keep the premises 

 "without hindrance or molestation from the said lessor, or any- 

 body claiming by, or through, or under it," and that he could not 

 recover for the loss of the use of the water, as W. did not claim 

 by. through, or under it. 



Groome v. Ogden City. (Supreme Court of Utah.) 37 Pac. 

 Rep. 90. 



Trover Against Landlord by Tenant. Where, during the term 

 of a lease, the landlord enters and takes possession of the prem- 

 ises, and converts to his own use removable trade fixtures erected 

 by the tenant for his business, the tenant may bring trover against 

 the landlord, unless he has surrendered the premises and aban- 

 doned the term. 



Rosenau v. Syring. (Supreme Court of Oregon.) 35 Pac. Rep. 

 844. 



Validity of Assignment of Pledge. An assignment of his in- 

 terest in a mortgage and notes pledged as security for a loan by 

 the executor of the pledgee is valid, and not a fraud upon the 

 pledgor, though payment is not first demanded of the pledgor, 

 nor notice given him that such assignment is to be made, as it 

 does not affect his position or right to redeem. 



Drake v. Cloonan (Supreme Court of Michigan.) 57 N. W. 

 Rep. 1098. 



Liability of Common Carriers. A bona fide purchaser of a 

 false bill of lading from the person to whom it was issued by the 

 railroad company, may hold the company liable to the extent of 

 advances made upon it, under the statute which provides that 

 any carrier which issues a bill of lading as if property had been 

 received, shall be liable to any person injured thereby. 



Jaspar Trust Co. v. Kansas City, M. & B. R. Co. (Supreme 

 Court of Alabama.) 14 So. Rep. 546. 



Validity of Deed of Trust. The statute providing that every 

 assignment by a debtor in trust for his creditors, shall be for the 

 benefit of all the creditors, and that provisions for prefeiential 

 payments shall be void, and all debts (including judgments by 

 confession thirty days previous to such assignment) shall be paid 

 fro rata from the assets thereof, does not prevent an insolvent 

 debtor from pledging property for the security of part of his 

 creditors only. Toe fact that a chattel deed of trust, made to 

 secure notes to part only of the grantor's creditors, empowers the 

 trustee to take possession of the property and sell it at a private 

 sale, and hold the proceeds until the maturity of all the notes 

 secured, does not make it a general assignment. 



Jaffray v. Matthews. (Supreme Court of Missouri.) 25 S. W. 

 Rep. 187. 



When a Levy is Invalid. Where an officer, in whose hands 

 an attachment is placed, does not seize the property sought to be 

 attached, nor assume possession or control thereof, but merely 

 makes a verbal agreement with the attachment debtor, that the 

 attaching creditor shall take charge of it as receiptor, and there 

 is no apparent change of possession, the levy is invalid as against 

 a subsequent levy of another attachment on the same property. 



Mahon v. Kennedy. (Supreme Court of Wisconsin.) 57 N. W. 

 Rep. 1108. 



AN IMPORTANT DECISION. 



The Supreme Court of California has given an important irri- 

 gation district ruling in the case of Quint v. Graham, involving 

 actions of directors of the Central Irrigation District in making 

 an assessment levy during 1892. In passing on the matter the 

 Court says: 



"This Board of Directors is a creature of the statute, and it 

 can do nothing unless authorized by the statute. It exceeded its 

 power in making this levy. The statute says it had the power 

 and it was its duty to levy an assessment sufficient to pay the 

 annual interest. But here it exceeded its power by levying an 

 assessment largely in excess of that amount. By this section of 

 the act certain burdens could only be cast upon the land of the 

 tax-payers of the district, and they had they double right to insist 

 upon a rigid compliant within this proviso of the statute. The 

 Board has no right to assume that the tax upon any particular 

 tract of land will not be paid either by the owner or by a sale of 

 the land itself. The question of the amount to be raised is not 

 one of discretion, but of pure legal right. It cannot be held that 

 a judicial discretion is vested in the Board of Directors to fix the 

 levy at any rate which it might deem sufficient to raise the amount 

 necessary to pay the annual interest." 



