not be Done. The heirs of a decedent can not by agreement among themselves to settle an estate without administration where there are creditors, deprive such creditors of the right to take letters, or to procure others to take them. Letters having once been properly granted, the person to whom such grant is made acquires the right to fully administer the estate.

Ib.

22. Same.-Appointment of Administrator.-Presumption as to.-Assailing Appointment.-Burden of Proof. Where the court has granted letters of administration, the legal presumption exists that the action of the court was right, and the burden is upon those assailing the right of appointment to prove that there was no necessity for administration.

DEDICATION.
See EASEMENT, 6.
DEED.

Ib.

1. Warranty. Estoppel. Subsequently Acquired Title.- Any subsequently acquired title by a grantor in a warranty deed to the premises conveyed by him inures to the benefit of the grantee, and such grantor is estopped to claim title thereto. Neely v. Boyce, 1

2. Condition Subsequent.-Sufficiency to Defeat Estate.-Aiding.-A condition subsequent that will defeat an estate created by a deed must be fairly expressed in the deed itself. The words used must create the condition. The court will not supply it, if the parties fail to express Sumner v. Darnell, 38

it.

3. Same.-Condition must be Clearly Stated.-A condition may be created by any words which show clear, unmistakable, intention on the part of a grantor to create an estate, or condition, regard being had to the whole of the deed in which they occur. The word "condition need not be used, but words importing a condition must be used, or plainly inferred from the instrument and the existing facts.

Ib.

4. Same.-County Seat.-Removal. - Reversion of Land Conveyed to Secure Location of--In 1816 the Legislature moved the county-seat of Wayne county from Salisbury to Centreville, where it remained until 1874, when it was removed to Richmond. In 1819 the owner of certain land situated in Centreville, in consideration of the seat of justice having been permanently established in Centreville, and for no other consideration, conveyed it to A, B, and C, by name, the commissioners of the county, "and their successors in office, for the use of said county.".

Held, that this was, in effect, a conveyance to the county, and not to them as trustees for the county; that the grantor had received a sufficient consideration for the conveyance from the presumed benefit he derived from the location of the county seat at Centreville from 1819 to 1874, and that the land conveyed did not revert to the grantor or his heirs when the county-seat was removed to Richmond. Ib. 5. Parol Evidence to Show Consideration.-Where the consideration of a deed is stated in general terms, as for love and affection, the true consideration may be shown by parol evidence in an action to set aside the conveyance as fraudulent. Nichols, Shepard & Co. v. Burch, 324 6. Description of Land.-How Construed. That part of a deed which undertakes to describe the premises conveyed is always construed with great liberality, and a deed is never to be so construed as to render it void, if any other construction can be given it. Grigsby v. Akin, 591 DEFALCATION.

See OFFICE And Officer, 1.

DELIVERY.
See GIFT, 2.

DESCENTS.

See DECEDENTS' ESTATES, 9.

DESCRIPTION OF LAND.

See DEED, 6; MECHANIC'S LIEN, 1; TAXES, 14.

DESERTION.

See HUSBAND AND WIFE.

DITCH.

See DRAINAGE.

DIVORCE.

1. Custody of Child.-Status Fixed by Decree.-How Status May be Changed.— The decree in a divorce suit awarding the custody of a child to one of the parties, fixes the status of the child as beween the parties until modified or set aside for cause shown by some subsequent, or supplemental, proceeding in the same cause. Leming v. Sale, 317 2. Alimony.--Evidence.--Pension.--For the purpose of determining the amount of alimony to be given, the wife may testify as to the amount of pension money the husband is receiving. Hedrick v. Hedrick, 522 3. Same.--Alimony.-- When Not Excessive.--An allowance of $1,100 as alimony is not excessive where the custody of two small children is given to the wife, the three remaining children of the family being able to care for themselves, and the husband is the owner of real estate worth two thousand dollars, in the purchase of which three hundred dollars of the wife's money was used. Ib. 4. Same.-Custody of Children.--Discretion of Trial Court.--Supreme Court.-The Supreme Court will not disturb an order of the trial court awarding the custody of the children, unless it appears that the court has abused its discretion. Ib.

DRAINAGE.

1. Cleaning Out Ditch.-Assessment by County Surveyor.—Collection of.—Action to Enjoin. When Injunction will Lie.-Proper Remedy.-Appeal.-Under the act of April 6th, 1885 (Acts 1885, p. 141), investing the county surveyor with the power to clean out ditches, and restore them to their original dimensions, and to assess the costs against the lands originally assessed for the construction of the ditch, etc., and providing for an appeal from the decision of the surveyor by any party aggrieved, an action will not lie to enjoin the collection of an assessment made by the county surveyor, unless it be affirmatively shown that the acts of the surveyor are not merely erroneous, but absolutely void, and without any authority. The surveyor being invested by statute with power to make the repairs and assessments, the only remedy of persons aggrieved by reason of an erroneous assessment is by appeal, and the assessment can not be attacked collaterally in a proceeding for injunction. Terre Haute, etc., R. R. Co. v. Soice, 105 2. Same.- When Injunction will not Lie.-Complaint.— Demurrer.—Where it does not appear in the complaint in an action to enjoin the collection of an assessment made by the county surveyor under the above section, that the amount is not assessed against the particular property owned by the plaintiff which is liable for the payment of such assessment, nor that the defendant will collect or attempt to collect the same by distress and sale of any other property of the appellant, the complaint is bad on demurrer. Ib. 3. Establishment of Ditch.- Verdict.-Sufficiency of.—In a proceeding to es

tablish a public ditch, a verdict reading: "We, the jury, find for the
petitioner that the proposed ditch will be of public benefit and utility;
that the assessments for its construction are in proportion to its bene-
fits; and that the route thereof is practicable," fills the requirements
of section 4294, R. S. 1881, and is sufficient where no objection is made
by remonstrance or otherwise in the commissioners' court.
Budd v. Reidelbach, 145

4. Sume.-Appeal from Commissioners.- Questions Triable in Circuit Court.— On appeal to the circuit court from the order of the commissioners establishing a ditch, only such objections can be relied on as were appropriately presented to the board of commissioners. Ib.

5. No Notice.-Collateral Attack.-An order made establishing a ditch without notice to those interested is void; but if only part have been notified, it is void as to all those who have not received notice. Those who have not received notice may attack the proceeding collaterally. McCollum v. Uhl, 304 6. Same.-Collateral Attack for Want of Notice.-Pleading.-The person who collaterally attacks an order establishing a ditch and the assessments incident thereto, because of lack of notice, must aver in his complaint, fully and specifically, that no notice was given.

Ib.

7. Same.-Notice.-Presumption as to Giving, and as to the Order Establishing the Drain.--In a collateral attack upon an order establishing a ditch, and making an assessment, it will be presumed that the court establishing the ditch found, as a jurisdictional fact, that a notice was duly given before it entered the order. Ib. 8. Same.-Priority of Tax and Ditch Lien.-The lien of the State for taxes is paramount and superior to the lien of a ditch assessment. Ib. 9. Same.-Redemption from Tax Sale by Holder of Ditch Lien.-The holder of a ditch lien has a right to redeem from a sale of the land for taxes. Ib. 10. Same.-Foreclosure of Tax Lien-Parties to Ditch Proceeding.-Party Acquiring Ditch Lien.-The holder of a tax lien seeking to foreclose it after a ditch is established, and before its construction is let, should make parties to his petition all who were parties to, and affected by the ditch proceedings; and any person acquiring the ditch lien, or any part of it, by reason of his having constructed the ditch, after the commencement of the proceeding to foreclose the tax lien, will not be bound thereby, unless the parties to the ditch proceedings are made parties to the tax lien foreclosure proceedings. Ib.

11. Appeal.-Parties.-Judgment for Costs.-Collateral Attack.-Under the drainage law of 1875 (Acts 1875, p. 97) an appeal from the board of county commissioners transfers the entire cause to the circuit court for trial de novo, and all the persons who were parties to the cause before such board are parties in the circuit court, and are bound by the judgment for costs rendered, and they can not attack it by an injunction to restrain its collection. Their remedy is by appeal.

Mills v. Hardy, 311 12. Repair of Ditches.-Surveyor's Assessment - Remedy of Aggrieved Person.The remedy of a land-owner who complains of an assessment made by the county surveyor, under Elliott's Supp., section 1193 (Acts 1885, p. 141), to reimburse the county treasury for money expended in repairing a ditch, is by appeal to the circuit court from such assessment, and not by a suit to restrain the treasurer of the county from collecting it. Goff v. McGee, 394 13. Straightening Watercourse.-Drainage Commissioners.—Jurisdiction.-Under the statutes of this State, authority is given to drainage commissioners to alter or change the channel of watercourses only when,

as expressed in the act, it is a "method of drainage." Acts 1885,
p. 129.
The primary object of the statute is the reclamation of
wet lands, and the power to alter and straighten watercourses is a
mere incident, and only to be exercised when it becomes necessary
to promote drainage. A proceeding to establish a drain where the pri-
mary purpose is to straighten a watercourse, and the drainage a
mere incident, is not within the jurisdiction conferred upon the cir-
cuit court by the above act.
Scruggs v. Reese, 399

DRAINAGE COMMISSIONERS.
See DRAINAGE, 13; MANDAMUS, 2.

DUPLICITY.

See CRIMINAL LAW, 2, 5.

EASEMENT.

See QUIETING TITLE.

1. Parol License.- When Irrevocable.-A naked parol license to enjoy an
easement over land is revocable by the licensor at any time while
it remains executory, but an executed parol license to use another's
land, granted upon a consideration, or upon the faith of which money
has been expended, can not be revoked. Messick v. Midland R. W.Co.,81
2. Way of Necessity.-The owner of a twenty-acre tract of land, bounded
on the north by a public highway, the only highway adjoining his
land, used as a roadway a strip of ground along the east side of the
tract to reach the public highway on the north. The owner died,
and, upon partition, five acres on the north end of the twenty-acre
tract were set off to his widow, and the remaining fifteen acres sold
to the plaintiff. The widow sold the five acres to the defendant, who
denied the right of the plaintiff to use the same in passing from his
land to the public highway.

Held, that the plaintiff was entitled to an easement over the defendant's
land.
Ellis v. Bassett, 118

3. Same.-Partition Among Heirs.-A partition of real estate among heirs
carries with it, by implication, the same right of way from one part
to and over the other as had been plainly and obviously enjoyed by
the common ancestor, in so far as it is reasonably necessary for the
enjoyment of each part.
Ib.

4. Same-Where the owner of an estate imposes upon one part an ap-
parent and obvious servitude in favor of another, and at the time of
the severance of ownership such servitude is in
use, and is reason-
ably necessary for the fair enjoyment of the other, then, whether the
severance is by voluntary alienation or by judicial proceedings, the
use is continued by operation of law.

Ib.

5. Same.-Notice to Purchaser.-Where the facts show that the way was a
way of necessity, that it was open and visible, and had been used
continuously for many years, this constitutes sufficient notice to a
purchaser of the existence of the easement.

Ib.

6. Implied Dedication. The implied dedication by the owner of land
platted for a town site of a strip of land fronting a river, to the pub-
lic as a common, for the purpose of a landing, and for access to the
river, does not vest in the town, or in the public, the fee of the land,
but the fee remains in the grantor, subject to the easement.
Town of Freedom v. Norris, 377

7. Same.-Alluvial Accretions.-Such easement attaches to alluvial addi-
tions caused by changes in the course of the river, and the public
has the right to pass over such additions for the purpose intended by
the dedication.

16.

8. Same.-Abandonment of Landing.-Non- User of Easement.-A non userof the easement, for the purpose intended, for a period of thirty years, due to an abandonment of commerce upon the stream, will be taken as an abandonment of the easement.

ELECTIONS.

See CONSTITUTIONAL LAW, 1 to 3.

Ib.

1. Contest.-Limitation of Time for Trial Before County Commissioners.– Continuance. The provision of section 4761, R. S. 1881, limiting to twenty days the duration of a session of the board of county commissioners when convened to try a contested election case, is mandatory, and the limitation applies to the entire proceeding, and not merely to the hearing of testimony. Where, therefore, the contestor before the expiration of the term obtains a postponement which carries the cause beyond the time limited, he thereby discontinues his English v. Dickey, 174

contest.

2. Same.-Computation of Time.-Section 1280, R. S. 1881, applies in computing the time, and Sundays are excluded only as provided by that section. Ib.

3. Same-Discontinuance.-Costs.-Where an election case is discontinued the costs should be taxed against the contestant. Section 4765, R. S. 1881. Ib.

ELECTRIC LIGHT.

See MUNICIPAL CORPORATION, 5.

EMANCIPATION.

See PARENT AND CHILD.

EMINENT DOMAIN.

1. Condemnation Proceedings.-Measure of Damages.-Assessment of Damages. -The rule in condemnation proceedings is that all damages present or prospective, that are the natural or reasonable incident of the improvement to be made, or work to be constructed, not including such as may arise from negligence or unskilfulness, or from the wrongful act of those engaged in the work, must be assessed. Damages are assessed once for all, and the measure should be the entire loss sustained by the owner, including in one assessment all injuries resulting from the appropriation. Chicago, etc., R. W. Co. v. Hunter, 213 2. Same.--Damages. What May be Considered in Estimating.-Railroad.— In an action for the appropriation of lands by a railroad company, it was proper to instruct the jury that they might consider the manner in which the land would be divided by the line of the railroad as affecting the size and shape of the fields, the access of stock to water, the passage from one part of the farm to another, the possible danger from fire emitted from the locomotives, etc. Ib.

Lien

EMPLOYER AND EMPLOYEE.

See INSTRUCTIONS TO JURY, 2, 3; Master and SERVANT.

EQUITY.

See PRINCIPAL AND SURETY, 2, 3.

upon Real Estate.-Foreclosure of-Equity Jurisdiction.-How Determined. Where a lien upon real estate is to be foreclosed, the equity power of the court is called into exercise, and the entire issue is for trial by the court. Where a specific decree is required there is an exercise of equity jurisdiction, and as the main feature of the case is equitable, it controls the incidents. Brighton v. White, 320