WATER. That liquid substance of which the sea, the rivers, and creeks
2. A pool of water, or a stream or water course, is considered as part of the
land, hence a pool of twenty acres, would pass by the grant of twenty acres of
land, without mentioning the water. 2 Bl. Com. 18; 2 N. H. Rep. 255; 1, Wend. R.
255; 5 Paige, R. 141; 2 N. H. Rep. 371; 2 Brownl. 142; 5 Cowen, R. 216; 5 Conn.
R. 497; 1 Wend. R. 237. A mere grant of water passes only a fishery. Co. Lit. 4
3. Like land, water is distinguishable into different parts, as the sea, (q.
v.) rivers, (q. v.) docks, (q. v.) canals, (q. v.) ponds, q v.) and sewers, (q.
v.) and to these may be added at water course. (q. v.) Vide 4 Mason, R. 397
River; Water course.
WATER BAILIFF, English law. An officer appointed to search ships in
ports. 10 H. vii., 30.
WATER COURSE. This term is applied to the flow or movement of the
water in rivers, creeks, and other streams.
2. In a legal sense, property In a water course is comprehended under the
general name of land; so that a grant of land conveys to the grantee not only
fields, meadows, and the like, but also all the rivers and streams, which
naturally pass over the surface of the land. 1 Co. Lit. 4; 2 Brownl. 142; 2 N.
Hamp. Rep. 255; 5 Wend. Rep. 128.
3. Those who own land bounding upon a water course, are denominated by the
civilians riparian proprietors, and this convenient term has been adopted by
judges and writers on the common law. Ang. on Water Courses, 3; 3 Kent, Com.
354; 4 Mason's R. 397.
4. Every proprietor of lands on the banks of a river has naturally an equal
right to the use of the water which flows in the stream adjacent to his lands,
as it was wont to run (currere solebat) without diminution or alteration.
5. No proprietor has a right to use the water to the prejudice of other
proprietors, above or below him, unless he has a prior right to divert it, or a
title to some exclusive enjoyment. He has no property in the water itself, but a
simple usufruct as it passes along. Agua currit et debet currere, is the
language of the law. 3 Rawle, Rep. 84; 9 Co. 57, b.
6. Though he may use the water while it runs over his lands, he cannot
unreasonably detain it or give it another direction, and he must return it to
its ordinary channel when it leaves his estate. Without the consent of the
adjoining proprietors, he cannot divert or diminish the quantity of the water,
which would otherwise descend to the proprietor below, nor throw the water back
upon the proprietor above, without a grant, or an uninterrupted enjoyment of
twenty years, which is evidence of it. 3 Kent, Com. 353; 1 Wils. R. 178; 6 East,
203; 1 Simon & Stuart, 190; 2 John. Ch R. 162, 463; 4 Mass. R. 401 17 John.
R. 321; 5 Ohio R. 822; 3 Fairf. R. 407; 8 Greenl. R. 268; 16 Pick. Rep. 247; 1
Coxes Rep, 460; Dig. 39, 3, 4, and 10; Pothier, Traite du Contrat de Societe, 2e
app. n. 236, 237; Bell's Law of Scotland, 691; Ang. on' Water Courses, 12; 2
Conn. R. 584.
7. When there are two opposite riparian proprietors, each owns that portion
of the bed of the river which is adjoining his land usque ad filum aquae; or, in
other words, to the thread or central line of the stream; Harg. Tracts, 5;
Holt's Rep. 499; and if hydraulic works be erected on both banks, each is
entitled to an equal share of the water. 1 Paige's Chanc. Rep. 448.
8. The water can only be used by each as an entire stream, in its natural
channel; for of the property in the water there can be no severance. 13 John. R.
9. But it seems that when an island is on the side of a river, so as to give
the riparian owner on that side one-fourth of the water, the other is entitled
to the whole of the three-fourths of the river. 10 Wend. Rep. 260. See, also, 13
Mass. Rep. 507; 2 Caines' Cas. 87; 9 Pick. R. 528; 3 Kent, Com. 344, 345; 3
Rawle's R. 84; 2 Watts, R. 327; 8 Greenl. R. 138, 253; 9 Pick. Rep. 59; 10 Pick.
R. 348; 10 Wend. R. 167; Com. Dig. Action for Nuisance, A; 4 D. & R. 583; S.
C. 2 B. & C. 910; 1 Campb. R. 463; 6 East, R. 208; 1 Wils. Rep. 174;; 1 B.
& A. 258; 5 Taunt. R. 454; 2 Esp. R. 679; 2 Hill. Abr. c. 14, 16, 17; Ham.
N. P. 199; 1 Vin. Ab. 557 22 Vin. Abr. 525; 2 Chit. Bl. 403, n. 7; 3 Roll. 140,
l. 40; Lois des Bat. part 1, c. 3, sed. 1, art. 3; Crabb on R. P. §398 to 443.
WATER ORDEAL. An ancient form of trial, now abolished, by which the
accused, tied band and foot, were cast into cold water, and if they did not sink
they were deemed innocent or they were compelled to plunge their limbs into hot
water, and if they came out unhurt they were considered innocent. Vide
WAVESON. This name is given to such goods as after shipwreck appear
upon the waves. Jacob, Law Dict. h. t.
WAY, estates. A passage, street or road. A right of way is a privilege
which an individual or a particular description of persons, such as the
inhabitants of a particular place, or the owners or occupiers of such place may
have, of going over another person's ground.
2. It is an incorporeal hereditament of a real nature, a mere easement,
entirely different from public or private roads.
3. A right of way may arise, 1. By prescription and immemorial usage. 2
McCord, 447 5 Har. & John. 474; Co. Litt. 113, b; Br. Chem. 2; 1 Roll. Ab.
936. 2. By grant. 3 Lev. 305; 1 Ld. Raym. 75; 17 Mass. 416; Crabb on R. P. §366.
3. By reservation 4. By custom. 5. By acts of the legislature. 6. From
necessity, when a man's ground is enclosed and completely blocked up, so that he
cannot, without passing over his neighbor's land, reach the public road. For
example, should A grant a piece of land to B, surrounded by land belonging to A;
a right of way over A's land passes of necessity to B, otherwise he could not
derive any benefit from the acquisition. Vide 3 Rawle, 495; 2 Fairf. R. 1,56; 2
Mass. 203; 2 McCord, 448; 3 McCord, 139; 2 Pick. 577; 14 Mass. 56; 2 Hill, S. C.
R. 641; and Necessity. The way is to be taken where it will be least injurious
to the owner. 4 Kent, Com. 338. 4. Lord Coke, adopting the civil law, says there
are three kinds of ways. 1. A foot-way, called iter. 2. A foot-way and
horse-way, called adus. 3. A cart-way, which contains the other two, called via.
Co. Lit. 56, a; Pothier, Pandectae, lib. 8, t. 3, §1; Dig. 8, 3; 1 Bro. Civ.
Law, 177. Vide Yelv. 142, n; Id. 164; Woodf. Landl. & Ten. 544; 4 Kent, Com.
337; Ayl. Pand. 307; Cruise's Dig. tit. 24; 1 Taunt. R. 279; R. & M. 151; 1
Bail. R. 58; 2 Hill. Abr. c. 6; Crabb on Real Prop. §360 to 397; Bouv. Inst.
Index, h. t.; Easement; Servitude.
WAY BILL, contracts. A writing in which is set down the names of
passengers, who are carried in a public conveyance, or the description of goods
sent with a common carrier by land; when the goods are carried by water, the
instrument is called a bill of lading. (q. v.)
WAY GOING CROP. In Pennsylvania, by the custom of the, country, a
tenant for a term certain is entitled after the expiration of his Iease, to
enter and take away the crop of grain which he had put into the ground the
preceding fall. This is called the way going crop. 5 Binn. R. 289; 2 S. & R.
14; 1 P. R. 224.
WAYS AND MEANS. In legislative assemblies there is usually appointed a
committee whose duties are to inquire into, and propose to the house, the ways
and means to be adopted to raise funds for the use of the government. This body
is called the committee of ways and means.
WEAR. A great dam made across a river, accommodated for the taking of
fish, or to convey a stream to a mill. Jacob's Law Dict. h. t. Vide Dam.
WED. A covenant or agreement; whence a wedded husband.
WEEK. Seven days of time.
2. The week commences immediately after twelve o'clock, on the night between
Saturday and Sunday, and ends at twelve o'clock, seven days of twenty-four hours
3. The first day of the week is called Sunday; (q. v.) the second, Monday;
the third, Tuesday; the, fourth, Wednesday; the fifth, Thursday; the sixth,
Friday; and the seventh, Saturday. Vide 4 Pet. S. C. Rep. 361.
WEIGHAGE, mer. law. In the English law it is a duty or toll paid for
weighing merchandise; it is called tronage, (q. v.) for weighing wool at the
king's beam, or pesage, for weighing other avoirdupois goods. 2 Chit. Com: Law,
WEIGHT. A quality in natural bodies, by which they tend towards the
centre of the earth.
2. Under the article Measure, (q. v.) it is said that by the constitution
congress possesses the power "to fix the standard of weights and measures," and
that this power has not been exercised.
3. The weights now generally used in the United States, are the same as those
of England; they are of two kinds:
1. AVOIRDUPOIS WEIGHT.
1st. Used in almost all commercial transactions,
and in the comwon dealings of life.
27 1/3 1/2 grains = 1 dram
16 drams = 1 ounce
16 ounces = 1 pound, (lb.)
28 pounds = 1 quarter, (qr.)
4 quarters = 1 hundred weight, (cwt.)
20 hundred weight = 1 ton.
2d. Used for meat and fish.
8 pounds = 1 stone
3d. Used in the wool trade.
Cwt. qr. lb.
7 pounds = 1 clove
14 pounds = 1 stone = 0 0 14
2 stones = 1 tod = 0 1 0
6 1/2 tods = 1 wey = 1 2 14
2 weys = 1 sack = 3 1 0
12 sacks = 1 last = 39 0 0
4th. Used for butter and cheese.
8 pounds = 1 clove
56 pounds = 1 firkin.
2. TROY WEIGHT.
24 grams = 1 pennyweight
20 pennyweights = 1 ounce
12 ounces = 1 pound.
4. These are the denominations of troy weight, when used for weighing gold,
silver and precious stones, except diamonds. Troy weight is also used by
apo-thecaries in compounding medicines; and by them the ounce is divided into
eight drams, and the drain into three scruples, so that the latter is equal to
twenty grains. For scientific purposes, the grain only is used, and sets of
weights are constructed in decimal progression, from 10,000 grains downward to
one-hundredth of a grain. The caret, used for weighing diamonds, is three and
5. A short account of the French weights and measures is given under the
WEIGHT OF EVIDENCE. This phrase is used to signify that the proof on
one side, of a cause is greater than on the other.
2. When a verdict has been rendered against the weight of the evidence, the
court may, on this ground, grant a new trial, but the court will exercise this
power not merely with a cautious, but a strict and sure judgment, before they
send the case to a second jury.
3. The general rule under such circumstances is, that the verdict once found
shall stand: the setting aside is the exception, and ought to be an exception,
of rare and almost singular occurrence. A new trial will be granted on this
ground for either party; the evidence, however, is not to be weighed in golden
scales. 2 Hodg. R. 125; S. C. 3 Bingh. N. C. 109; Gilp. 356; 4 Yeates, 437; 3
Greenl. 276; 8 Pick. 122; 5 Wend. 595; 7 Wend. 380; 2 Vir. Cas. 235.
WELCH MORTGAGE, Eng. law, contracts. A species of security which
partakes of the nature of a mortgage, as there is a debt due, and an estate is
given as a security for the repayment, but differs from it in the circumstances
that the rents and profits are to be received without account till the principal
money is paid off, and there is no remedy to enforce payment, while the
mortgagor has a perpetual power of redemption.
2. It is a species of vivum vadium. Strictly, however, there is this
distinction between a Welch mortgage and a vivum vadium. In the latter the rents
and profits of the estate are applied to the discharge of the principal, after
paying the interest; while in the former the rents and profits are received in
satisfaction of his interest only. 1 Pow. Mortg. 373, a.
WELL. A hole dug in the earth in order to obtain water.
2. The owner of the estate has a right to dig in his own ground, at such a
distance as is permitted by law, from his neighbor's land; he is not restric-ted
as to the size or depth, and is not liable to any action for rendering the well
of his neighbor useless by so doing. Lois des Bat. part. 1, c. 3, sect. 2, art.
WELL KNOWING. These words are used in a declaration when the plaintiff
sues for an injury which is not immediate and with force, and the act or
nonfea-sance complained of was not prima facie actionable, not only the injury,
but the circumstances under which it was committed, ought to be stated, as where
the injury was done by an animal. In such case, the plaintiff after stating the
injury, continues, the defendant well knowing the mischievous propensity of his
dog, permitted him to go at large. Vide Scienter.
WERE. The name of a fine among the Saxons imposed upon a murderer.
2. The life of every man, not excepting that of the king himself, was
esti-mated at a certain price, which was called the were, or vestimatio capitis.
The amount varied according to the dignity of the person murdered. The price of
wounds was also varied according to the nature of the wound, or the member
WERGILD, or WEREGILD, old Eng. law. The price which in a barbarous
age, a person guilty of homicide or other enormous offence was required to pay,
instead of receiving other punishment. 4 Bl. Com. 188. See, for the etymology of
this word, and a tariff which was paid for the murder of the different classes
of men, Guizot, Essais sur l'Histoire de France, Essai 4eme, c. 2, §2.
WETHER. A castrated ram, at least one year old in ark indictment it
may be called a sheep. 4 Car. & Payne, 216; 19 Eng. Com. Law Rep. 351.
WHALER, mar. law. A vessel employed in the whale fishery.
2. It is usual for the owner of the vessel, the captain and crew, to divide
the profits in just proportions, under an agreement similar to the contract Di
Colonna. (q. v.)
WHARF. A space of ground artificially prepared for the reception of
merchan-dise from a ship or vessel, so as to promote the convenient loading and
discharge of such vessel.
WHARFAGE. The money paid for landing goods upon, or loading them from
a wharf. Dane's Ab. Index, h. t.
WHARFINGER. One who owns or keeps a wharf, for the purpose of
receiving and shipping merchandise to or from it, for hire.
2. Like a warehouseman, (q.v.) a wharfinger is responsible for ordinary
neglect, and is therefore required to take ordinary, care of goods entrusted to
him as such. The responsibility of a wharfinger begins when he acquires, and
ends when he ceases to have the custody of the goods in that capacity.
3. When he begins and ceases to have such custody depends generally upon the
usages of trade and of the business. When goods are delivered at a wharf, and
the wharfinger has agreed, expressly or by implication, to take the custody of
them, his responsibility commences; but a mere delivery at the wharf, without
such assent, does not make him liable. 3 Campb. R. 414; 4 Campb. R. 72; 6 Cowen,
R. 757. When goods are in the wharfinger's possession to be sent on board of a
vessel for a voyage, as soon as he delivers the possession and the care of them
to the proper officers of the vessel, although they are not actually removed, he
is, by the usages of trade, deemed exonerated from any further responsibility. 5
Esp. R. 41; Story, Bailm. §453 Abbott on Shipp. 226; Molloy, B. 2. 2, s. 2;
Roccus, Not. 88; Dig. 9, 4, 3.