CONTINUING NUISANCE-POLLUTION OF WELL-MEASURE OF DAMAGES.the pollution of a well causes permanent and irremediable damage to plaintiff's land he is entitled in one action to all damages, present or prospective; but if temporary in character, and capable of being avoided in the future, he can recover damages only up to the commencement of the action, as the contamination is then in the nature of a continuing nuisance. Beatrice Gas Co. v. Thomas, 711. 5. POLLUTION OF WELL-DAMAGES.-One who collects injurious or offensive matter upon his premises, which, by percolation, transmission through subterranean streams, or otherwise, pollutes his neighbor's well, is liable for the damages sustained. Beatrice Gas Co. v. Thomas, 711. See MUNICIPAL CORPORATIONS, 5, 6; WATERS, 12. OBSTRUCTIONS. OFFICERS. L PUBLIC OFFICE. THE TITLE TO A PUBLIC OFFICE may be tried in proceed. ings against a person claiming to be entitled to such office, though he has not yet taken possession of it, if the statute declares that, when several persons claim to be entitled to the same office or franchise, a petition may be filed against all, or any portion of them, in order to try their respective rights thereto. State v. Van Beek, 397. 2 PUBLIC OFFICE. AN ALIEN IS NOT ENTITLED to hold a public office, though there is no constitutional or statutory provision expressly excluding him from such right. State v. Van Beek, 397. 3. PUBLIC OFFICE.-AN ALIEN ELECTED TO A PUBLIC OFFICE is, on subse quently, and before the time when he is required to qualify for the office, becoming a naturalized citizen, entitled to hold such office and discharge the duties thereof, if there is no constitutional or statutory provision expressly requiring him to be qualified therefor at the time of his election. State v. Van Beek, 397. ESTOPPEL TO DENY OFFICIAL CAPACITY.-If, under the provisions of law, the office of county attorney is the same as that of prosecuting attorney, one who, though elected as county attorney, assumes the duties of the office of prosecuting attorney, and collects delinquent taxes as such officer, is estopped to deny that he is filling that office in an action against him by the county to recover for taxes so collected by him. County of Spokane v. Allen, 830. 5. ATTORNEY FEES FOR COLLECTING TAXES-EXTRA COMPENSATION-Attorney fees paid by delinquent taxpayers upon tax collections made by a county attorney whose duty it is to collect such taxes and whose salary is fixed by law cannot be retained by him as compensation for duties extrinsic to his office. The retention of such fees by him is extra compensation, and contrary to a constitutional prohibition upon the increase of the compensation of a public officer during his term of office. County of Spokane v. Allen, 830. PUBLIC OFFICE. THE RIGHT TO A PUBLIC OFFICE IS NOT FORFEITED by the failure to qualify at the time designated in the statute, if such qualification was prevented by an injunction or other proceeding by which the right or power to qualify was temporarily suspended. State v. Van Beek, 397. 7. OFFICIAL BONDS - LIABILITY OF SURETIES. —Sureties on an official bond are presumed to take notice of the fact that changes may be made concerning the duties of their principal, and when these changes are made in matters of minor importance, which as a whole do not substantially increase their liabilities, they are not exonerated nor released by such changes. County of Spokane v. Allen, 830. 8. OFFICIAL BONDS - LIABILity of Sureties. -If an entirely new and distinct class of duties, not germane to the office, are imposed upon a public officer, his sureties are not liable to answer for the faithful performance of the added responsibilities. County of Spokane ▼. Allen, 830. 9. OFFICIAL BONDS-LIABILITY OF SURETIES FOR ADDITIONAL DUTIES IMPOSED ON OFFICER.-If, after a county attorney has been elected, given an official hond, and has assumed the duties of the office, a statute is enacted imposing upon him the new and additional duties of collecting and accounting for delinquent taxes, such duties are not ger. mane to his original office, and the sureties on his official bond are not liable for the nonperformance by him of the new and additional duties thus imposed. County of Spokane v. Allen, 830. See EQUITY, 3; Legislature; STATES, 14; SURETYSHIP, 1-3; TRespass, 1. ORDINANCES. See MUNICIPAL CORPORATIONS, 10. PARENT AND CHILD. 1. RIGHT TO CUSTODY.-A charitable corporation having no legal right to the custody of a minor child cannot retain such custody as against its parents, no matter whether they are proper custodians or not. Lovell v. House of the Good Shepherd, 839. 2. RIGHT OF PARent to Custody.-Before parents can be deprived of the custody or comfort of their minor child a case must be made which is sufficiently extravagant, singular, and wrong to meet the condemnation of all decent and law-abiding people, without regard to religious belief or social standing. Lovell v. House of the Good Shepherd, 839. 8. RIGHT OF PARENT TO CUSTODY.-The fact that the mother of a minor child is a passionate, coarse, vulgar, and pugnacious woman, and that the father is addicted to the excessive use of intoxicants, and has other debasing habits, is not sufficient to deprive them of the custody of the child. Lovell v. House af the Good Shepherd, 839. 4. RIGHT TO CUSTODY-ESTOPPEL.-If a charitable corporation has no legal right to the custody of children placed in its charge a mother who has placed her minor child in charge of such institution, under a promise that the child should remain there until eighteen years of age, is not estopped to assert her right to the custody and control of the child at any time before it arrives at such age. Lovell v. House of the Good Shepherd, 839. See DAMAGES, 4. PAROL See EVIDENCE, 10. PARTIES. See SPECIFIC PERFORMANCE, 5. PARTITION. ESTATES BY ENTIRETY ARE DISSOLVED BY DIVORCE; they then become tenancies in common, and may be partitioned. Russell v. Russell, 581. PARTNERSHIP. 1. WHAT CONSTITUTES.-Parties having a community of interest in the capital employed in, and in the profits derived from, a business are partners as to third persons. Webster v. Clark, 217. 2 AGREEMENT FOR-WHAT CONSTITUTES.-A written agreement disclosing a transaction in which the parties thereto have a community of interest in the capital employed, as well as a community of interest in the profits arising therefrom, constitutes them partners as to third persons, and liable as such, notwithstanding the fact that the transac tion is sought to be concealed under the guise of a lease. Webster v. Clark, 217. 8. WHAT CONSTITUTES.-A trade arrangement entered into upon such basis that the parties thereto have a community of interest in the capital stock engaged therein, and a community of interest in the profits resulting therefrom, constitutes a partnership and the parties thereto partners. Webster v. Clark, 217. 4 AGREEMENT FOR.-If an agreement under which a business arrangement is carried on, and which is claimed to be a partnership, is in writing, free from ambiguity or doubt, its legal effect must be determined, as a matter of law, and the intention of the parties gathered therefrom; but, if the language employed leaves the true meaning in doubt, the construction put upon the contract by the parties thereto may be looked to in determining its legal effect. Webster v. Clark, 217. 5. LIABILITY OF ONE HELD OUT AS PARTNER.-One who is not actually a partner, and who has no interest in a partnership, cannot by reason of having held himself out to the world as a partner be held liable as such on a contract made by the partnership with one who has no knowledge of the holding out. Webster v. Clark, 217. LIABILITY OF ONE HELD OUT AS PARTNER.-Except when one allows the public or individual dealers to be deceived by the appearances of partnership when none exists he is never to be charged as a partner, unless, by contract and with intent, he has formed a relation in which the elements of a partnership are to be found. Webster v. Clark. 217. 7. A MORTGAGE MADE BY THE MEMBERS OF A PARTNERSHIP on the firm property to secure the individual debt of one of its members is not fraudulent as against creditors of the firm, and they are not entitled to have it vacated because its enforcement will prevent the firm property from being applied to the satisfaction of the firm obligations. Smith v. Smith, 359. THE RIGHT OF FIRM CREDITORS TO PAYMENT OUT OF FIRM ASSETS.The creditors of a firm have no lien on, or equity in, the partnership property. Therefore, with the consent of the partners, it may be ap. plied to the payment of their individual debts, though the firm is then insolvent. The partnership creditors are not entitled to set aside such payment as fraudulent as against them. Smith v. Smith, 359. JUDGMENTS AGAINST PArtners-DESIGNATION OF PARTIES. ment describing the parties against whom it is rendered by their part A judg nership name is valid, although in the action in which the judgment is rendered they are sued as individuals composing a partnership and as joint debtors, and designated by their individual names in the pleadings, including the caption to the judgment entry itself. Olson v. Veazie, 855. See INSURANCE, 5; TRADEMARKS, 6. PATENTS. 1. AS EVIDENCE.-In an action of ejectment based upon a government patent to land regular upon its face, the patent is at least prima facie evidence of a good conveyance, and, in the absence of any thing to impeach it, should be admitted in evidence. Johnson v. Drew, 172. 2. Validity—EJECTMENT.-A patent to land not under the control of, nor subject to disposition by, the general-land office is void. Its invalidity may be shown in an action of ejectment to recover the land. In such a case plea setting up equitable grounds of defense cannot be filed. Johnson v. Drew, 172. & VALIDITY-PRESUMPTION.-A patent in due form of law, sufficient on its face to convey the title to the land therein described, and purporting to have been issued by the proper officers of the government, is prima facie valid in an action at law. Johnson v. Drew, 172. 4 MERE OCCUPANT OF LAND CANNOT QUESTION.-A mere occupier of public land without any paper title, or any right of entry, or any authority of law, is a trespasser, and has no right to question the legality of a patent to the land issued by the general land-office. Johnson v. Drew, 172. 5. ATTACK UPON VALIDITY OF.—A patent to public land issued by the general land-office, and not void upon its face, cannot be questioned, either directly or collaterally, by persons who do not show themselves to be in privity with a common or paramount source of title. Johnson v. Drew, 172. 6. VALIDITY COLLATERAL ATTACK. The action of the general land. office in issuing a patent for any of the public land subject to sale is conclusive at law of the legal title, until set aside by proper direct proceedings, and cannot be collaterally attacked. Such patent is also con. clusive in equity until set aside in a proper proceeding on the ground that the land officers have misconstrued the law, or that their judg. ment has been so affected by misrepresentation or fraud as to deprive a party of his just rights. Johnson v. Drew, 172. 7. VALIDITY-ATTACK UPON.-Patents to land purporting to have been issued under authority of the general government, but shown to have been issued without authority of law, as when the land undertaken to be conveyed has never been subject to the control and disposition of the government, or, if so, was withdrawn from sale when the patent issued, or in fact never belonged to the government, are void, and their invalidity may be shown as a defense in an action at law for the possession of the land. Johnson v. Drew, 172, PAYMENT. See INSURANCr, 1. PENALTY. See CORPORATIONS, 18, 19, DAMAGES, 6–8. PERSONAL PROPERTY. 1 FIXTURES-BUILDINGS ON ANOTHER'S LAND.-It is entirely competent for parties to agree that buildings shall remain the personal property of him who erects them, and such an agreement may be either express or implied from the circumstances under which the buildings are erected. Merchants' Nat. Bank v. Stanton, 491. 2. FIXTURES - BUILDINGS ON ANOTHER'S LAND.-If buildings are constructed on land by one having no estate therein, and hence no interest in enhancing its value, by the permission or license of the owner, an agreement that the structures shall remain the property of the person erecting them will be implied, in the absence of any facts or circumstances tending to show a different intention. Merchants' Nat. Bank v. Stanton, 491. PLATS. PLEADING. MISJOINDER OF CAUSES OF ACTION-DEMURRER.-If a complaint contains a statement of one good cause of action, and an attempted statement of another calling for a species of relief which cannot be granted un. der any state of the pleadings, a demurrer for misjoinder of causes of action does not lie, provided the complaint contains a continuous statement of facts and is not divided into separate counts or causes of action. Times Publishing Co. v. City of Everett, 865. See CARRIERS, 2; EJECTMENT, 1; FRAUDULENT CONVEYANCES, 5; MUNI CIPAL CORPORATIONS, 1; NEGLIGENCE, 1. POWER OF ATTORNEY. POLLUTION. See NUISANCE; WATERS, 12 PREFERENCES. Bee AiSIGNMENT FOR THE BENEFIT OF CREDITORS, 3-7; CORPORATIONS, 14◄ 16; FRAUDULENT CONVEYANCES, 3, PRESENTMENT. PRESUMPTION. Bee EVIDENCE, 8; PATENTS, 3; STATUTES, 6; WILLS, & PRINCIPAL AND AGENT. PRINCIPAL AND SURETY. PRIORITY. See MECHANIC'S LIEN, 7. |