New York Lawyer WS
New York Layer, law dictionary, legal dictionary, dictionary online, word search, lawyer search, law and order, attorney, law school    
 
Google
 
Web new-york-lawyer.ws
 
W

WATER. That liquid substance of which the sea, the rivers, and creeks are composed.

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 b.

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. 212.

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. Vide River.

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 Ordeal.

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 each thereafter.

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, 16.

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 one-sixth grains.

5. A short account of the French weights and measures is given under the article Measure.

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. 2, 2.

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 injured.

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.

 
 
 
Copyright © 2004 New-York-Lawyer .WS