tion), knows the existence of any fact concerning the things sold which would, to his knowledge destroy the buyer's inducement to buy.

If one sells, or agrees to sell, an article of his own manufacture, he thereby warrants it to be free from any latent defect, not disclosed to the buyer, arising from the process of manufacture; and also that neither he nor his agent in such manufacture has knowingly used improper materials in it. If an article was manufactured under an order for a particular purpose, the manufacture in selling it, warrants that it is reasonably fit for such purpose. If one sells, or agrees to sell, merchandise inaccessible to the examination of the buyer, he thereby warrants that it is sound and merchantable. One who sells, or agrees to sell, any article to which there is affixed or attached a trade-mark, thereby warrants that mark to be genuine and lawfully used. One who sells, or agrees to sell, an instrument purporting to bind any one to the performance of an act, thereby warrants that he has no knowledge of any facts which tend to prove it worthless, such as the insolvency of any of the parties to it (where that is material), the extinction of its obligations, or its invalidity for any cause. One who makes a business of selling provisions for domestic use, when selling them to one who buys for actual consumption, warrants that they are sound and wholesome. One who sells the good will of a business thereby warrants that he will not endeavor to draw off any of the customers.

Upon a judicial sale, the only warranty implied is that the seller does not know that the sale will not pass a good title to the property. A general warranty does not extend to defects inconsistent with it, of which the buyer was then aware, or which were then easily discernable by him without the exercise of proper skill; but it extends to all other defects.

A buyer must pay the price of the thing sold on its delivery, and must take it away within a reasonable time after the seller offers to deliver it. On an agreement for sale, with warranty, the buyer has the right to inspect the thing sold, at a reasonable time, before accepting it; and may rescind the contract if the seller refuses to permit him to do so. See Rescission. The breach of a warranty entitles the buyer to rescind an agreement for sale, but not an executed sale, unless the warranty was intended by the parties to operate as a condition. The following expressions have been decided

to be warrantys— “in good order"; 1911 auto sold for 1912; the following are not: "all right"; "30 h. p. engine"; "30 h. p. simple engine traction"; "goods first class."

Warranty Deed: See Deeds.

Waste: See Artesian Wells; Landlord and Tenant; Real Estate. Water Law: See Real Estate; Artesian Wells; Waste. This State contains so many conditions of water supply, that at first glance it would appear that there was a set of laws for each variety of these conditions, namely-appropriation, riparian, percolating, tunnels, springs, subterranean waters, water courses which sink during the dry season, underground streams, underground lakes; but upon more careful examination of the subject, it will be found that the laws divide themselves into three parts; those in relation to appropriation, to riparian rights, and to all others.

The standard miner's inch of water shall be equivalent to one and one-half cubic feet of water per minute, measured through any aperture or orifice.

Water boundaries are as follows (unless otherwise specified in the deed): (1) When bordering on tide water-then to the ordinary high tide mark. This means the limit reached by those tides which happen between the full and change of the moon twice in every 24 hours. The owner of such land has the right of access to the ocean, and could even build a wharf across the lands of the state, preventing a stranger from doing the same thing. (2) When bordering upon a navigable stream or lake, where there is no tide, then to the edge of it, at low water mark. (3) Upon any other water, then to the middle of the lake or stream. (See Riparian.)

Where two parcels of land belonging to different owners are adjacent to each other, and one is lower than the other, and the surface water from the higher tract has been accustomed by a natural flow to pass off over the lower tract-the owner of the upper tract has an easement to have the water flow over the land below-since every landowner must bear the burden of receiving on his land the surface water naturally falling upon land above it, and naturally flowing from it on to the lower land. The owner of the higher land has no right (even for his own relief) either to divert surface or storm waters from his lands on to the lands of another-over which they would not naturally have flowed; nor has he the right by accumulating the surface waters upon his own

lands (in ditches or other artificial channels) to precipitate them upon his neighbor's land in larger quantities, or in a different form from that which they would have taken in the course of

nature.

APPROPRIATION:

All water or the use of water within the State of California is the property of the people of the State of California, but the right to the use of running water flowing in a river or stream or down a canyon or ravine may be acquired by appropriation; provided, that no water for the generation of electricity or electrical or other power may be appropriated for a longer period than twenty-five years, except by a municipal corporation, other than an irrigation district or a lighting district, or by an irrigation district when such electricity, electrical or other power is for use and distribution only within its own limits, and as subsidiary to and mainly for the purpose of serving and carrying out irrigation, or by a lighting district when such electricity, electrical or other power is for use and distribution only within its own limits. The appropriation must be for some useful or beneficial purpose and when the appropriator or his successor in interest ceases to use it for such purposes, the right ceases. The person entitled to the use may change the place of diversion if others are not injured by the change, and may extend the ditch, flume, pipe, or acqueduct by which the diversion is made to places beyond that where the first use was made. The water appropriated may be turned into the channel of another stream and mingled with its water, and then reclaimed; but in reclaiming it the water already appropriated by another must not be diminished. As between appropriators, the one first in time is the first in right, but he may take only that quantity necessary for use on his own lands. An appropriator's right is limited to such quantity (not exceeding the capacity of the ditch), as he may put to a useful purpose upon his land within a reasonable time, by use of reasonable diligence. He cannot waste. If there is any surplus over and above the water necessary for his beneficial use, he must restore it to its accustomed flow in the stream.

APPROPRIATION BY STORAGE.

Section 1. The storing of water underground by the owner of the right to the use of it, and the damming of streams and the flowing of water on lands necessary to the accomplishment of such storage, if the water is to be later withdrawn by pumps, tunnels, or

other suitable means for irrigation, domestic or other beneficial uses within the territory served by the owners of the water right, with water for irrigation, domestic or other beneficial uses are hereby declared to be reasonable, economic, and beneficial methods of taking and applying such water, if the water so taken is from time to time being put to the beneficial uses for which it was appropriated.

Sec. 3. None of the provisions hereof shall apply to the use of artesian well water or affect riparian rights in any way.

RIPARIAN: One who owns land which borders a running stream is called a riparian owner, and his rights in the waters of the stream are said to be “riparian” rights. He is entitled to the land covered with water, in front of his bank to the center of the watercourse, and to the use of the water flowing over that land in its natural current, without diminution or obstruction. This watercourse need not flow constantly but should be expected at some season of the year; it must have a source independent of that fitful and occasional character which comes from melting snow or falling rain; it must be a stream flowing in a definite channel, with a bed and banks or sides and may be partly above the surface and partly beneath, or some times above and some times below. As long as running water continues in its natural course it cannot be made subject to private ownership.

The riparian owner does not own the water. He has the right to use the water in a reasonable quantity for domestic and irrigation purposes, and must return the surplus to the stream within the boundary of his land, that it may pass on to a lower riparian owner. He has the right to insist that this water shall not be polluted before it reaches his land, nor diminished from use by other riparian owners so as to deprive him of his just portion. If the needs of a riparian owner do not prompt him to make use of the water, he still has the right to have them flow onto and along, and over, lands in the usual way-except as may be changed by act of God, or as the amount of it may be decreased by the reasonableness of upper riparian owners. But none of his rights to put the water to legitimate use are lost because he does not use them. These rights are attached to the soil and pass with it, and may be lost only by grant, condemnation or proscription.

Lands situated beyond the natural watershed of a stream, which are not drained by it cannot be considered as riparian, even though they

form part of a tract owned in one body; and such owner, under his riparian claim—and to the injury of another riparian owner-cannot take the waters beyond its natural watershed, for any purpose; even for manufacturing, when it would practically return. An upper riparian owner is limited in his right to the use of water upon his land within the watershed of the stream. He may take his proportion of the water. The surplus must be returned to the channel of the river at the lower boundary of his land. After he has thus used his legitimate part of the water, he cannot object to its diversion to any beneficial use by a lower riparian owner, or their successors-even though they might take it out of the watershed.

The right to take water, as against a riparian owner, may be acquired by proscription, but lower riparian owners using their water cannot acquire title to them by proscription against upper riparian owners on the same stream who do not use the water. There can be no prescriptive right to divert the waters of a stream, as against an upper riparian owner, at a point below his land-by reason of his long acquiescence in such diversion and use. There can be no title by proscription where the acts making the adverse claim of use are not sufficient. A riparian right is not destroyed by the acquisition of an easement for a highway, canal, or road along the shore. In all actions which may be hereafter brought when an injunction or restraining order may be applied for to prevent the diversion, diminution or increase of the flow of water in its natural channels, to the ordinary flow of which the plaintiff claims to be entitled, the court shall first require due notice of the application to be served upon the defendant, unless it shall appear from the verified complaint or affidavits upon which the application therefor is made, that, within ten days before the time of such application, the plaintiff has been in the peaceable possession of the flow of such water, and that, within such time, said plaintiff has been deprived of the flow of it by the wrongful diversion of such flow by the defendant, or that the plaintiff, at the time of such application, is, and for ten days before has been, in possession of the flow of said water, and that the defendant threatens to divert the flow of such water.

PERCOLATING WATERS: The doctrine that the owner of the soil was the absolute owner of the water percolating in it, and could extract the waters at will, regardless of its effect on other lands— is unsuited to our conditions. Outside of underground waters con