against any suit, loss, damage or expense by reason of any negli
gence or default, want of skill or care on the part of the contractor,
and requiring him to guarantee and keep in repair such pavement
for one year, and retaining ten per cent of the total amount of such
contract for one year, such requirement does not cut off full and
free competition in bidding, nor does it render the contract void
as tending to cause the contractor to increase the amount of his bid,
and thus increase the burden on the taxpayers. (S. C.) Dillingham
v. City Council of Spartanburg, 917.
8. MUNICIPAL CORPORATIONS-Contracts for Street Paving
-Patented Material.-A city may legally advertise for bids and
contract for paving streets with patented material if all the com-
petition is permitted of which the situation allows. If a city ex-
ercising its power to make public improvements in good faith de-
cides to contract for the use of patented articles, there is created
no monopoly and no abatement in competition beyond what neces-
sarily results from the rights and privileges given the patentee un-
der his patent. (S. C.) Dillingham v. City Council of Spartanburg,
9. MUNICIPAL CORPORATIONS-Waterworks Contracts.-A
municipal corporation has incidental power to contract for the con-
struction and operation of a system of waterworks for public and
private use, and the making of such a contract is not a delegation
of a governmental function, but an exercise by the city of its busi-
ness or proprietary powers. (Ala.) City of Gadsden v. Mitchell, 20.
10. MUNICIPAL CORPORATIONS—Waterworks Contracts -
Period of Franchise.-If no limit is fixed by constitution or statute
as to the length of time for which a contract made by a city for the
construction and operation of a system of waterworks for public and
private use shall remain in force, it cannot be said that such con-
tract providing that it shall remain in force for thirty years is un-
reasonable. (Ala.) City of Gadsden v. Mitchell, 20.
11. MUNICIPAL CORPORATIONS-Waterworks Contract-
Designation of Streets to be Piped-Injunction.-A contract entered
into by a city for the construction of a waterworks system which
does not prescribe the order in which the work of constructing such
water plant shall be begun, is not a condition precedent to main-
taining a bill for a mandatory injunction to require the city to desig.
nate the streets in which pipes shall be laid and hydrants located,
that the complainants shall have purchased material, located water
towers and pumping stations, or otherwise have begun to perform their
part of the contract. (Ala.) City of Gadsden v. Mitchell, 20.
See Elections, 1; Waters and Watercourses, 7-8.
Municipal Courts, contempt, power of to punish, 955, 956.
1. NAVIGABLE STREAMS-Boundaries.-If a Change in the
Position of a navigable river dividing the territory of two states is
by gradual and imperceptible encroachment, or insensible recession,
so that the process cannot be detected, the boundary follows the
shifting thread of the stream; but if from a flood and ice gorge, or
other violent natural cause, there is a sudden, visible irruption of the
water, whereby the land upon one side is degraded or submerged, or
a new channel is cut for the stream, the boundary remains stationary
at its former location, and the boundaries of the riparian owners whose
lands have been affected remain unchanged. (Kan.) Fowler v.
Wood, 534.
2. NAVIGABLE STREAMS-Avulsion-Reappearance of Sub-
merged Land.-If a navigable river suddenly encroaches upon ad-
joining private land, the title to the submerged portion remains in the
former owner. When thereafter such land rises to the surface,
whether by the deposit of alluvion or by a change in the channel of
the stream, dominion reattaches thereto as if never suspended, and
whatever accretions may have been added to the tract belong to its
proprietor, as in ordinary cases. (Kan.) Fowler v. Wood, 534.
3. NAVIGABLE RIVERS-Avulsion-Reappearance of Sub-
merged Land After Partition.-If a navigable river suddenly sub.
merges a portion of a tract of land owned by tenants in common, and
the remainder is then, by judicial proceedings, partitioned under the
supposition that the submergence is permanent, the allottees whose
shares border on the stream cannot, when the submerged land reap-
pears, claim it to the exclusion of those whose shares do not touch
water. The owners are entitled, on the equitable ground of mistake,
to a partition of the reclaimed soil with its accretions, if excluded
from the former partition. (Kan.) Fowler v. Wood, 534.
4. NAVIGABLE RIVERS-Boundaries.-When a Private Grantor
bounds the land generally on a river, the presumption is that he does
not intend to reserve any land between the upland and the stream
and that the grant will carry title as far as he owns.
The presump
tion is rebuttable, the question being purely one of intention; and
when the intention is ascertainable from the face of the instrument or
a record, other evidence is not admissible. (Kan.) Fowler v. Wood,
5. NAVIGABLE RIVERS — Avulsion-Reappearance of Sub-
merged Land After Conveyance.-If the owner of a tract of land, a
part of which has suddenly been submerged by an adjoining navi
gable stream, conveys the upland only, the purchaser, upon the reap-
pearance of the submerged portion, can include it within his boundary
only by the process of accretion or reliction. (Kan.) Fowler v.
Wood, 534.
6. NAVIGABLE RIVER-Rights of Riparian Owners-Deflection
of Stream. The owner of land bounded by a navigable river has the
right to secure his soil against inroads of the water, to secure aeere-
tions which form against his bank, and to erect improvements to
promote commerce and other uses of the stream as navigable water,
but he has no right to deflect the stream into a new channel by plac-
ing obstructions across the main current. (Kan.) Fowler v. Wood,
534.
7. NAVIGABLE RIVERS Formation of Islands-Accretion-
New formations arising from the bed of a navigable river belong
to the owner of the bed, and new formations added to the island
or bar by the process of accretion or reliction belong to the owner
of the bar or island, although by such growth it extends inward until
it reaches the shore. (Kan.) Fowler v. Wood, 534.
8. NAVIGABLE RIVERS-Formations by Accretion or reliction
must be made to the contiguous land so as to change the portion of
the water's margin or edge. (Kan.) Fowler v. Wood, 534.
9. NAVIGABLE RIVER-Accretion.-If the Space Between the
Mainland and an Island is reduced to a slough which fills up in such
a manner that the two bodies of land join, the respective owners are
entitled to the accretions to their shores; and if the slough fills up
from the bottom, and the accretions do not begin at the sides, the
boundary is the center of the slough, as it was before the water left
it. (Kan.) Fowler v. Wood, 534.
NEGLIGENCE-Invasion of Province of Jury.-In cases in-
volving negligence, where the facts are undisputed and the infer-
ences which may be drawn from them are not equivocal, and can lead
to but one conclusion, the court may adjudge as matter of law that
there is or is not negligence, and may so instruct the jury. (Ind.)
McIntyre v. Orner, 359.
NEGLIGENCE-Conflict of Evidence-Question for Jury.-If
a servant sues his master for damages for personal injury alleged to
have been caused by the master's negligence, and the facts are con-
troverted and the evidence conflicting, both the question of negligence
and of contributory negligence must be submitted to the jury for de-
termination. (Ind. App.) Columbian Enameling etc. Co. v. Burke,
NEGLIGENCE_Contributory-Sudden Peril.-One who does
an act under an impulse, or upon a belief created by a sudden peril
attributable to another's negligence, is not to be regarded as guilty
of contributory negligence, even though the act would be negligent
if performed under circumstances not indicating sudden danger.
(Ind.) McIntyre v. Orner, 359.
4. NEGLIGENCE of Parent.-When not Imputed to Child.-
Though parents are guilty of negligence, such negligence is not im-
puted to their child, if it exercises such care as is required of an
adult under similar circumstance. (N. Y.) Serano v. New York
Cent. R. R. etc. Co., 833.
Operation of Steam Shovel near Highway.
5. NEGLIGENCE-Operation of Steam Shovel.-A railway com-
pany operating a steam shovel on its right of way, and near a high-
way crossing, is bound to use the shovel, whether within the limits of
the highway or not, so as not to unreasonably interfere with the rights
of the traveling public. (Iowa) Heinmiller v. Winston Brothers,
6. NEGLIGENCE-Operation of Steam Shovel.-If a steam shovel
belonging to a railway company and operated upon its right of way
near a highway crossing is naturally calculated to frighten horses of
ordinary gentleness, it is the duty of the company to exercise ordinary
care in the use of the shovel so as not to unnecessarily endanger per-
sons lawfully upon the highway. (Iowa) Heinmiller v. Winston
Brothers, 405.
7. NEGLIGENCE Operation of Steam Shovel.-The question as
to whether the operation of a steam shovel owned by a railway com-
pany, and in use near a public highway, requires the company to warn
travelers of the danger from its operation, is for the jury to determine
under all the circumstances proved. (Iowa) Heinmiller v. Winston
Bros., 405.
8. NEGLIGENCE-Fall of Awning-Res Ipsa Loquitur.-The lia-
bility of the owner of a building for damages to a traveler upon the
highway caused by the falling of an awning attached to such build-
ing is to be determined upon the principle of negligence in accord-
ance with the maxim "res ipsa loquitur," and not upon the doctrine
of insurance of safety, when there is no issue as to nuisance in the
case. (Minn.) Waller v. Ross, 661.
9. NEGLIGENCE-Fall of Awning.-If a traveler upon the high-
way is injured by the fall of an awning attached to a building, the
owner of such building is prima facie, guilty of negligence. (Minn.)
Waller v. Ross, 661.
Injury to Children in Street.
10. NUISANCE-Private Sewer Across Public Street-Liability of
Constructor. If a sewer constructed in a public alley without the con-
sent of the city, by the owner of a lot adjoining such alley for his
own convenience, is by him allowed to become in such a defective
condition as to constitute a nuisance, he, and not the city, is liable
for an injury to a child caused by her jumping from a pile of lumber
and breaking into such sewer. In such case it is the duty of the con-
structor of the sewer or his successor in interest to keep it in a safe
condition for those who are entitled to use the alleyway. (Ky.)
Covington Sawmill and Mfg. Co. v. Drexilius, 593.
11. STREETS-Rights of Children-Negligence.-The fact that a
child was playing in a public alleyway when injured through the
negligence of another is no defense to an action to recover for the
injury. (Ky.) Covington Sawmill and Mfg. Co. v. Drexilius, 593.
12. NEGLIGENCE-Parent and Child.-It is not Negligence, as a
Matter of Law, for parents to permit a child, six years of age, to go
unattended on a public street which is crossed by two lines of tracks
of a steam railway running nearly at a right angle to the street.
(N. Y.) Serano v. New York Cent. etc. R. R. Co., 833.
13. NEGLIGENCE.-A Child of Tender Years is not Required to
Exercise the Same Degree of Care and Prudence in the presence of
danger which is expected of an adult under like circumstances, but
she should exercise such care and prudence as is commensurate with
one of her age and intelligence. (N. Y.) Serano v. New York Cent.
NEW TRIAL-Weight of Evidence.-A motion for a new trial
on the ground of insufficiency of the evidence sufficiently presents the
question of the weight of the evidence on appeal. (Ind. App.) Un-
ger v. Mellinger, 348.
Notaries Public, contempt, power of to punish, 958.
1. NUISANCE-Noise of Dogs-Injunction.-The annoyance and
inconvenience arising from the barking and howling of dogs and the
whining of puppies to such an extent as to greatly annoy and break
the rest and sleep of an adjoining family, and seriously disturb them
in the reasonable use and enjoyment of their home, constitutes a
nuisance which may be enjoined, although a town ordinance may
afford an easy and expeditious remedy at law for the inconvenience
suffered by such family. (Va.) Herring v. Wilton, 997.
2. NUISANCE-Smoke, Cinders, and Soot.-People residing in
cities are entitled to enjoy their homes free from the damaging re-
sults of smoke, soot and cinders, if sufficient to depreciate the value
of their property and render its occupancy uncomfortable. (Miss.)
King v. Vicksburg Ry. etc. Co., 749.
3. NUISANCE-Damages-Ownership.-If damage to private
property, resulting from noise, smoke and cinders, was done by an
electric plant before it was acquired by the owner against whom suit
is brought, and there has been no continuing cause of damage main-
taining a depreciation of value, such owner is not liable, but he is
liable if the damage was done during a former ownership, and the
cause of it is continuing and a restoration of value prevented.
(Miss.) King v. Vicksburg Ry. etc. Co., 749.
1. OFFICERS DE FACTO-Acts of-Collateral Attack.-If a
notary public accepts the office of deputy district attorney, and after
the expiration of the latter office swears the prosecuting witness to
an affidavit charging a person with the commission of a crime, such
official act, whether de jure or de facto, cannot be attacked collater-
ally. (Ind. App.) McNulty v. State, 344.
2. OFFICERS-De Facto and De Jure-Payment of Salary.—A
municipality which has paid the salary of an officer de facto when it
was due and he was in possession of the office, is not liable to the
officer de jure for such salary, upon his establishing his right to the
office. (Wash.) Samuels v. Town of Harrington, 1075.
OFFICERS De Facto and De Jure-Collection of Salary-Elec-
tion of Remedies.-An officer de jure who has recovered judgment
against an officer de facto for salary of the office paid to the latter
has elected his remedy, and cannot recover the amount of such salary
from the municipality, on failure to collect such judgment. (Wash.)
Samuels v. Town of Harrington, 1075.
Contracts against Public Policy.
4. OFFICERS Contracts Against Public Policy.-Any contract
by a public officer binding himself to violate his duty to the public,
or placing him in a position inconsistent with his duty to the public,
and which has a tendency to induce him to violate such duty, is
against public policy, and clearly illegal and void. (Ind.) Cheney
v. Unroe, 391.
5. OFFICERS Contracts Against Public Policy.-A contract by
a highway superintendent to labor for the contractors engaged to con-
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