park around courthouse, conveyed determinable | be lost by mere nonuser, no matter how long
fee, and not a technical easement, where there that nonuser may continue, and it may be lost
was nothing in deed to show that anything but by abandonment only when the intention to
determinable fee was intended.-Board of abandon clearly appears.-Parker v. Swętt, 180
Com'rs of El Paso County v. City of Colorado P. 351.
Springs, 180 P. 301.

3(2) (Cal.App.) Deed to plaintiffs, reserving
to grantor, as an easement in favor of the tract
owned by him, perpetual right of way over and
across strip of land conveyed, constituting north-
erly 30 feet across width of his tract, consti-
tuted and reserved only easement appurtenant
to tract of which strip was the northerly por-
tion, and not an easement in gross.-Nilson v.
Wahlstrom, 180 P. 358.

32 (Or.) A right of way by necessity can
be destroyed only by adverse possession suffi-
cient to create a prescriptive right, and is un-
affected where possession was only for 12
years.-Tucker v. Nuding, 180 P. 903.

36(1) (Or.) Where tract conveyed is sur-
rounded, at least in part, by other lands of
grantor, there is a presumption of fact that
a way of necessity is impliedly granted across
grantor's property when no other adequate
means of access is available.-Tucker v. Nuding,
180 P. 903.

3 (2) (Cal.App.) Where an owner of land
severs it and conveys part thereof, expressly re-
serving a right of way, the easement is ap-36(3) (Cal.App.) In order for the statute of
purtenant to the land retained, in view of Civ. limitations to run against the right of the holder
Code, § 1069, requiring reservations in a deed of an easement, there must be definite and posi-
to be construed most favorably to the grantor, tive evidence of an adverse claim and an ad-
and passes by transfer of the land itself, with- verse holding.-Parker v. Swett, 180 P. 351.
out particular reference thereto, in view of sec-
tion 1084.-Nay v. Bernard, 180 P. 827.

8(2, 3) (Cal.App.) Express recognition of
the rights of plaintiff as the owner of the domi-
nant estate in deeds to the servient estate con-
taining reservations thereof is contrary to any
claim of adverse possession to such easements.
-Parker v. Swett, 180 P. 351.

II. EXTENT OF RIGHT, USE, AND
OBSTRUCTION.

42 (Cal.App.) Where plaintiff and defendant
acquired land through parties who had divided
it, easements in favor of one reserved in the
partition deed cannot be held as against a parcel
8(2, 3) (Cal.App.) A right of way by ad- of land adjoining that divided which was ac
verse user or prescription cannot be based up-quired by the servient owner after the parti-
on a permissive use of the road.-Nay v. Ber- tion deeds were made; Civ. Code, § 1106, re-
nard, 180 P. 827.
lating to subsequently acquired title passing
by operation of law, being without application
thereto.-Parker v. Swett, 180 P. 351.

14(2) (Cal.App.) An easement for a right of
way reserved by the grantor upon the severance
of the estate and the conveyance of part there-61(8) (Or.) A right of way by necessity
of is not affected by an express reservation of held described in complaint with sufficient defi-
another right of way for another purpose, es- niteness by reference to a roadway.-Tucker
pecially if the latter reservation was for a right v. Nuding, 180 P. 903.
of way for a future use.-Nay v. Bernard, 18071 (Cal.App.) Where the grantor of land
conveyed part thereof, reserving a right of
way, a subsequent grantee of the land retained
was not entitled to judgment in a suit to es-
tablish the right of way as appurtenant to his
land, in the absence of findings that the road
existed prior to the conveyance severing the
estate.-Nay v. Bernard, 180 P. 827.

P. 827.

17(5) (Cal.App.) Where the owner of land
severs it and sells a part after the establishment
of a road across the land conveyed, a quasi ease-
ment is created in favor of and as an appurte-
nance to the land retained by the grantor; the
easement being obviously apparent and the
parties having knowledge thereof at the time of
the grant.-Nay v. Bernard, 180 P. 827.

18(3) (Cal.App.) The owner of land border-
ing a county road who has constructed a road

180 P. 827.

EJECTMENT.

III. PLEADING AND EVIDENCE.

over such land to the county road cannot claim86(3) (Mont.) In ejectment, plaintiff having
a right of way by necessity over the land of an- shown legal title in himself, the burden is on
other to another county road.-Nay v. Bernard, defendant to establish his claim of title by ad-
18(3) (Or.) A grantee is not precluded from
verse possession by clear and convincing proof.
claiming right of way by necessity over remain--Shinors v. Joslin, 180 P. 574.
ing lands of his grantor by fact that granted
land was partly surrounded by public domain
over which grantee had a license to pass, re-
vokable by entry under federal land laws.
Tucker v. Nuding, 180 P. 903,

18 (6) (Or.) Ordinarily, no right of way by
necessity pertains to land which borders, and
to which there is adequate access, upon the sea.
-Tucker v. Nuding, 180 P. 903.

24 (Cal.App.) An easement appurtenant to
a particular tract of land was not like an ease-
ment in gross, which the owner could have con-
veyed away apart from the land.-Nilson v.
Wahlstrom, 180 P. 35S.

24 (Or.) Where owner of estate imposes on
one part an obvious and reasonably necessary
servitude in favor of another part, the servi-
tude passes with a conveyance of dominant por-
tion by implied grant.—Tucker v. Nuding, 180
P. 903.

26(3) (Or.) A right of way by necessity ex-
ists only while person claiming it has no other
adequate means of access.-Tucker v. Nuding,
180 P. 903.

30(2) (Cal.App.) Although plaintiff and his
predecessors have neglected for 25 years to ex-
ercise their right to lay a pipe line upon a
right of way, they have not lost such right,

ELECTION OF REMEDIES.

See Appeal and Error, 12; Pleading,
369.

3 (2) (Colo.) An action for breach of con-
tract is inconsistent with an action for damages
from fraudulently having been induced to enter
into it; and, when one has been instituted
and followed to judgment, plaintiff has elected,
and cannot thereafter have the benefit of the
other remedy.-McKay v. Fleming, 180 P. 747.

3(3) (Nev.) Where plaintiff wife, defend-
ant in divorce suit, instead of bringing action
for husband's breach of contract whereby he
agreed to pay her a specified sum in consid-
eration of her agreement not to demand a di-
vision of community property, or ask for suit
money, instituted proceedings to set aside di-
vorce decree in his favor, held, she cannot
maintain suit on the contract; the remedies
being inconsistent, and she having made an
election.-Robertson v. Robertson, 180 P. 122.

ELECTIONS.

See Appeal and Error, 781; Grand Jury,
39; Mandamus, 74; Perjury. :

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

ELECTRICITY.

See Municipal Corporations, 254; Negli-
gence, 39.

3909, relating to appeals from decisions of coun-
ty commissioners to superior courts; no such
right of appeal being given by sections 9322-
9438.-Duncan Tp. v. Stayr, 180 P. 476.

17 (Kan.) A telephone company is not lia-238 (6) (Wash.) Under Rem. Code 1915, §
ble for death of 13-year old trespasser, who
climbed its pole equipped with steps for climb-
ing and was killed at top by contact with over-
head electric light wire placed and maintained
by city over which company had no control.-
Edwards v. Kansas City, 180 P. 271.

19(2) (Kan.) Petition, alleging that city
knew, or by proper diligence should have
known, that boys were in habit of climbing a
telephone pole equipped with steps, that a boy
who climbed to its top was killed by contact
with overhead, uninsulated electric light wire
negligently placed and maintained by city, stat-
ed cause of action against city.-Edwards v.
Kansas City, 180 P. 271.

ELEVATORS.

See Carriers, 235, 280, 320; Commerce,
58; Contracts, 10.

EMBEZZLEMENT.

See Criminal Law, 369; Insurance,
665.

38 (Wash.) In a prosecution for grand lar-
ceny, accused being charged with converting
specific funds entrusted to him for a certain
purpose, held proper to exclude canceled
checks, bank statements, inventories, and
books of account showing in detail the busi-
ness relations between the prosecuting witness
and the accused, which could only serve to
confuse and befog the issue.-State v. Beaton,
180 P. 146.

EMINENT DOMAIN.

See Constitutional Law, 24; Covenants,
x 8.

II. COMPENSATION.

5663, providing that upon legalization of road
"the board may increase, diminish or refuse to
allow any damages, to which order the parties
may appeal within three months," the appeal
so authorized can in no event bring into the
superior court any other question than that of
the amount of damages which some property
owner might suffer by reason of the legaliza-
tion of the road.-Duncan Tp. v. Stayr, 180 P.
476.

EMPLOYERS' LIABILITY ACTS.
See Master and Servant, 204, 205, 217, 347,
361, 371.

(A) Original Bill.

134 (Colo.) Any cause of action by a share.
holder against the corporation for its transfer
of her certificates indorsed in blank and pay-
ment of dividends thereon to the transferees,
based on the alleged violation of her instruc-
tions by the person presenting the certificates
(D) Persons Entitled and Payment.
for transfer was lost by her delay in assert-
165 (Cal.App.) Code Civ. Proc. § 1248, pro- the stock had become valuable and the com-
ing her rights for 21⁄2 years, during which time
viding that, upon condemnation of land incum-
bered by a mortgage or other lien securing in- ferees.-Valley View Consol. Gold Mining Co.
pany had paid large dividends to such trans-
debtedness not due at time of entry of judgv. Whitehead, 180 P. 737.
ment, the amount of indebtedness may, at plain-
tiff's option, be deducted from the judgment,
does not give plaintiff the right to recover such

ERROR, WRIT OF.

indebtedness after payment of judgment in full See Appeal and Error.

and neglect to retain amount of indebtedness.-
Marin Municipal Water Dist. v. North Coast
Water Co., 180 P. 620.

ESCAPE.

ESCROWS.
426.

See Corporations,

Municipal water district, having secured pos- See Criminal Law, 1131, 1217.
session of property it had condemned by order
of court in a proceeding in invitum under Code
Civ. Proc. § 1254, cannot recover from owner
taxes due and constituting lien upon land, but
not delinquent, at time of transfer of land,5 (Mont.) In ascertaining whether escrow
notwithstanding Civ. Code, § 1712; owner be- agreement provided for passing of title upon
ing under no obligation to remove lien of taxes
execution or
at time of transfer.-Id.
upon full compliance with its
terms and delivery of deed in accordance there-
with, intention of parties will be ascertained
from language used in the contract under rules
of construction provided for by Rev. Codes, $$
5025-5028, and 5030.-Knapp v. Andrus, 180
P. 908.

III. PROCEEDINGS TO TAKE PROP-
ERTY AND ASSESS COM-
PENSATION.

167(2) (Wash.) Under Const. art. 1, § 16,
providing for taking private property, a statute
which purports to provide for the determina-
tion of the question of damages resulting from
the exercise of the powers of eminent domain
other than by a judicial proceeding in a court
of record, wherein owners of property are
brought into court by an appropriate original
process, is unconstitutional.-Duncan Tp. v.
Stayr, 180 P. 476.

238(2) (Wash.) Under Rem. Code 1915, §§
5659-5664, relating to legalization of roads, or-
der of supervisors of township legalizing es-
tablishment of public road is not appealable to
the superior court, notwithstanding section

12 (Mont.) In view of Rev. Codes, § 4599,
where land contract provided for deposit of
deed with bank in escrow to be delivered to
purchaser "upon completion of the payments so
agreed upon," purchaser was not entitled to
delivery of deed, and did not receive title until
full compliance with the contract.-Knapp v.
Andrus, 180 P. 908.

14(1) (Colo.) Where deed, given to real es-
tate agent by grantor to be delivered after con-
summation of exchange of lands, was recorded
by the agent without awaiting such consum-
mation and without actual delivery to the other
party to the exchange, and without the au-

thority and against the instructions of the
grantor, there was no delivery, and the instru-
ment was not a deed, and conveyed nothing.
Weghorst v. Clark, 180 P. 742.

14(2) (Colo.) Unauthorized delivery of a
deed may be ratified.-Weghorst v. Clark, 180
P. 742.

ESTATES.

See Descent and Distribution; Dower; Ease-
ments, 1; Executors and Administrators;
Tenancy in Common; Trusts, 203; Wills.

ESTOPPEL.

110 (Colo.) For the grantee of the grantee
of a recorded andelivered deed to claim against
the grantor of such deed estoppel in pais
through the grantor's neglect to take immediate
measures to recover his land so as not to
leave an apparently good title shown by the
record, such estoppel must be pleaded.-Weg-
horst v. Clark, 180 P. 742.
755,116 (Colo.) One claiming by estoppel has
13; the burden of showing he was misled to his
hurt.-Weghorst v. Clark, 180 P. 742.

See Injunction, 245; Insurance,
756, 763; Limitation of Actions,
Mortgages, 414, 528; Municipal Corpo-
rations, 365.

III. EQUITABLE ESTOPPEL.
(B) Grounds of Estoppel.
68(1) (Colo.) Where in a former action, in-
volving the same subject-matter and between
the same parties, plaintiff invoked the jurisdic-
tion of every court which determined the cause,
and, upon the defendant's raising the question
in the county court, insisted that the court had
jurisdiction, he cannot raise the question of ju-
risdiction in a later case.-Whipple v. Wessels,
180 P. 309.

68(1) (Mont.) Where motion to transfer
cause after affidavit under Rev. Codes, § 7962,
subd. 32, disqualifying judge, asked that cause
be transferred to court of adjoining county to
judge of which court like objection does not
exist, movant is estopped to file disqualifying
affidavit to judge of adjoining court.-Stair v.
Lunke, 180 P. 569.

72 (Cal.App.) Where depositor left blank
note with cashier, with instructions to fill in
note, charge to his personal account, and credit
proceeds to account of corporation, of which
he was head, and cashier, after charging note,
abstracted proceeds thereof, without crediting
proceeds to corporation's account, depositor
is not liable on note under the rule that, where
one of two innocent parties must suffer by the
act of the third, the loss must fall upon the
first negligent actor.-National Bank of San
Mateo v. Whitney, 180 P. 845.

EVIDENCE.

See Continuance, 47: Costs, 61; Crim-
inal Law, 304-564; New Trial, 70,
72, 102, 105; Pleading. 377; Waters and
Water Courses, 225; Witnesses.
For evidence as to particular facts or issues
or in particular actions or proceedings, see
also the various specific topics.

For review of rulings relating to evidence, see
Appeal and Error.
Reception at trial, see Criminal Law, ~680-
681; Trial, ~45-105.

I. JUDICIAL NOTICE.

10(1) (Or.) The Supreme Court cannot take
judicial notice of the former existence or re-
spective locations of a certain schoolhouse and
church or old meetinghouse, or of a certain tav-
10(2) (Wash.) Courts will take notice of
ern.-Burch v. City of Amity, 180 P. 312.
geographical position and location of cities and
towns within their jurisdictions.-Schmidt v.
Powell, 180 P. 892.

The superior court for Yakima county should
take judicial notice of the fact that Wapato,
mentioned in a broker's agreement, is a town
located in that county.-Id.

10(4) (Wash.) The superior court for Yaki-
scription of property in a broker's agreement,
ma county should take judicial notice that de-
locating it 21⁄2 miles south of Wapato, deter-
mined the property to be within the bounds of
Yakima county.-Schmidt v. Powell, 180 P.
892.

72 (Okl.) When one of two innocent per-
sons must suffer by acts of a third, the one
who enables third person to occasion the loss
must sustain it, and what one induces another 14 (Cal.App.) The court may not take ju-
to regard as true is the truth between them if dicial notice that gonococcus infection is not
the other has been misled thereby.-Magnolia communicable except by actual contact.-Ex
Petroleum Co. v. Saylor, 180 P. 861.
parte Johnston, 180 P. 644.
Where original lessee in an oil and gas lease 16 (Wash.) The courts recognize ordinary
made an alteration without lessor's authority,
the lessor could not close her eyes and fail
to examine duplicate in her possession for
over one year, especially where her attention
was specifically called to altered rental amount
and she receipted for rent from innocent as-
signee, she would be estopped to have lease can-
celed.-Id.

74(1) (Colo.) The only way, if any, in which
a grantee of a grantee of a recorded undeliv-
ered deed can claim anything against the gran-
tor in such deed is by estoppel in pais through
the grantor's neglect to take immediate meas-
ures to recover his land, thus leaving an ap-
parently good title shown by the record.-Weg-
horst v. Clark, 180 P. 742.

78(2) (Kan.) Where fidelity bond recited
that person whose fidelity was guaranteed was
an agent or employé of insured, and where,
in contract between plaintiff and such other, he
was designated as an agent, and where in-
surer's answer in action on bond described
him as an agent, the insurer's recital and ad-
missions estopped it to deny that he was an
agent or employé.-Vilm Milling Co. v. Kan-
sas Casualty & Surety Co., 180 P. 782.

92(2) (Okl.) To defeat a liability, a party

abbreviations customarily used and generally
understood, such as "S. 1⁄2 of S. E. 27-11-19."
which, therefore, sufficiently describes the south
half of the southeast quarter of section 27,
township 11, range 19.-Schmidt v. Powell, 180
P. 892.

23(2) (Wash.) The courts will take judicial
notice of the manner of survey and location of
base and meridian lines, they having been lo-
cated by virtue of acts of Congress.-Schmidt
v. Powell, 180 P. 892.

The court takes notice that townships are
numbered north and south from base lines, and
that the base line from which they are num-
bered in Washington is the Willamette base
line, and that ranges are located east and west
of meridians, and that the meridian from which
they are located in Washington is the Willa-
mette meridian, and that the Willamette base
line intersects the Willamette meridian near the
city of Portland, Or., and that there are 40
townships south of the base line and 41 north
thereof.-Id.

The courts judicially know that in Washing-
ton there can be no range 19 west of the Wil-
lamette meridian, and that such a description
would call for a location in the Pacific Ocean,

For cases in Dec.Dig. & Am,Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

numbered 19 must refer to range 19 east of the
Willamette meridian.-Id.

The court judicially knows that there are no
townships south of the base line in the state of
Washington, and therefore township 11 must
be north.-Id.

32 (Cal.App.) Courts of record do not take
judicial notice of municipal ordinances.-Church
v. Grady, 180 P. 548.

82 (Kan.) Where, after judgment was open-
ed under Code Civ. Proc. § 83 (Gen. St. 1915,
§ 6974), and cause was tried, files were de-
stroyed by fire, it will be presumed, on files re- 271 (16) (Cal.App.) In broker's action for
produced from recollection of parties and attor- commissions for sale of land, evidence offered
neys and affidavits of defendants' attorneys and by defendants as to statements by owner after
of trial judge, that statutory requirements were consummation of sale, and just previous to own-
fully complied with.-Wyatt v. Collins, 180 P. er's death, that broker had nothing to do in
789.
effecting sale, was inadmissible, being self-serv-
ing declarations.-Roth v. Thomson, 180 P. 656.

318(2) (Cal.) A letter written to witness'
brother by witness' mother was inadmissible
upon cross-examination of witness, although it
contained some alleged statements of witness at
variance with his testimony, such evidence be-
181 (Utah) In action for wrongful execu-ing hearsay.-Campbell v. Genshlea, 180 P. 336.
tion sale, a copy of the execution is inadmissi-
ble, where no foundation was laid for the re-
ceiving of secondary evidence.-Larsen v. Ryan,
180 P. 178.

identified by an official of the bank as the only
one kept for that purpose.-Bundy v. Wilson, | (A)
180 P. 740.

359(1) (Utah) In an action by an infant to
recover the value of a pony, harness, and buggy

which he had delivered to defendant in ex-
change for certain stock after his offer to re-
turn the stock and his alleged disaffirmance of
the contract, a properly identified photograph
showing the pony, harness and buggy at time
of trade was admissible as bearing on their
value. Blake v. Harding, 180 P. 172.

XII. OPINION EVIDENCE.
Conclusions and Opinions of Wit-
nesses in General.

474 (11) (Cal.App.) A machinist who had
personally observed facts connected with opera-
tion of an engine on day that its flywheel broke,
and had been working on it all day and up to a
few moments of the accident, and who had been
making similar tests of engines for the defend-
ant for about a month, and gave facts connected
with the operation and testing of the engine,
359(3) (Or.) There being evidence tending was qualified to give his opinion as to what
to show that condition of the premises photo-caused the flywheel to break.-Lemley v. Doak
graphed was substantially the same as on the 477(1) (Kan.) In action against a surgeon
Gas Engine Co., 180 P. 671.
day of the fire in question, there was no error
in admitting the photographs.-Northwest Door
Co. v. Lewis Inv. Co., 180 P. 495.

for malpractice, nonexpert witnesses may tes-
tify to external appearances and manifest con-
ditions observable by any one.-Paulich v. Nip-
ple, 180 P. 771.

481(1) (Kan.) Whether a surgical operation
was performed with a reasonable degree of skill,
knowledge, and care, and whether patient was
thereafter skillfully and properly treated, can-
not be established by testimony of those with-
out special learning and skill as to such opera-
tions and practice.-Paulich v. Nipple, 180 P.
771.

380 (Utah) Before a photograph of a pony,
harness, and buggy was admissible to show its
value at the time of a trade therefor, it must
be shown that it is substantially a true and
correct picture, though it need not show the
minutest details.-Blake v. Harding, 180 P. 172.
383 (7) (Cal.) To show against trustor or 481(3) (Mont.) In action against railroad
other person in possession that the trustee's for death of boy on track, involving question
grantee has succeeded to such title and right of of whether trainmen saw boy in perilous posi-
possession as the trustor had when he made tion, court properly refused to permit witness
the deed of trust, trustee's deed, made pursuant to testify that in his opinion engineer could see
to the trust deed, providing for conclusiveness person on track 9 feet from west end of ten-
of recitals in trustee's deed, as to default, no- der, where witness had not shown himself qual-
tice of sale, sale, and receipt of purchase money, ified to give opinion evidence on such question.
is competent and sufficient.-Roberts v. Colyear, McIntyre v. Northern Pac. Ry. Co., 180 P.
180 P. 937.
971.

XI. PAROL OR EXTRINSIC EVI-
DENCE AFFECTING WRIT-
INGS.

(A) Contradicting, Varying, or Adding to
Terms of Written Instrument.
397(2) (Kan.) Where parties after negotia-
tions commit their agreements to an unambig-
uous writing, it is to be presumed that every
stipulation and material matter has been in-
cluded therein, and parol evidence of preceding
conversations or negotiations in conflict with
written contract are inadmissible.-Hudson v.
Riley, 180 P. 198.

(B) Invalidating Written Instrument.

(B) Subjects of Expert Testimony.
506 (Cal.App.) An expert witness may give
an opinion on the very issue which a jury is to
decide.-Lemley v. Doak Gas Engine Co., 180
P. 671.

523 (Okl.) Expert testimony as to the value
of legal service rendered is not necessary, when
there is evidence of the services rendered, the
character of the litigation, and results obtain-
ed sufficient to form a basis for determining
value of such services.-McClintock v. Parish,
180 P. 689.

(C) Competency of Experts.

538 (Kan.) Whether a surgical operation
was performed with a reasonable degree of skill,
knowledge, and care, and whether patient was
thereafter skillfully and properly treated are
questions of science, to be established by testi-
mony of witnesses of special skill and experi-
ence.-Paulich v. Nipple, 180 P. 771.

433(8) (Cal.) In an action involving writ-
ings evidencing an exchange of real property,
the objection to the parol proof to alter and
vary terms cannot stand, where the writings
themselves, through mistake, do not express the
intention of the parties or one of them.-Mc-545 (Or.) Preliminary testimony of a wit-
Combs v. Church, 180 P. 535.

ness, tending to show that she had considerable
knowledge of the market prices of the machin-
ery, held to render her competent to testify as
an expert as to the value of machinery de-
Inv. Co., 180 P. 495.
stroyed by fire.-Northwest Door Co. v. Lewis

546 (Or.) The determination of the quali-
fication of a witness to testify as an expert is
within the sound discretion of trial court.—
Northwest Door Co. v. Lewis Inv. Co., 180 P.

495.

(D) Examination of Experts.

461(1) (Cal.App.) Where a guaranty is sus-
ceptible either of the interpretation that it is,
or that it is not, continuing, in determining in- 554 (Cal.App.) Hypothetical statement of
tention of the parties, the ambiguity may be the data need not be made in giving an expert
explained by parol evidence of the situation and opinion, except by witnesses not having person-
surroundings of the parties, and the guaranty al observation of the data for their opinion, and
interpreted in the light of such circumstances. in such case opposing party may bring out facts
-R. N. Nason & Co. v. Kennedy, 180 P. 349. on cross-examination.-Lemley v. Doak Gas En-
~461(4) (Cal.App.) Where the owner of land gine Co., 180 P. 671.
severs it and retains an easement, whether such 558(9) (Cal.App.) Hypothetical
easement is in gross or appurtenant to the
dominant estate may be shown by facts aliunde
the deed, notwithstanding that no description
of the dominant estate is included in the grant
of the servient tenement.-Nay v. Bernard, 180

statement

of the data need not be made in giving an ex-
pert opinion, except by witnesses not having
personal observation of the data for their opin-
ion, and in such case opposing party may bring
out facts on cross-examination.-Lemley v.