Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-03-19
SUPREME COURT.
DECISIONS OF CASES FILED JESTER
DAY.

George Wcnt,eorth and John .NcIr.tosh late
partners as Wentworth d; Mcintosh, Appel-
lants, Us. Chancey ". Griggs. James J. Hill
and George S. Aeker, late partners as Hill,
G,iggs d Co., Respondents
SYLLABUS.
Costs allowed party on a motion may be
inserted in the costs allowed him, when he is
entitled to costs, and entered in the judgment.
Upon dismissal of and action the defendant
Is entitled to have allowed. as a disbursement,
the expenses of copies of papers, material to
MS defense. and actually and necessarily pro-
cured by him for that purpose. The party en-
t1tleo TO costs should be allowed what the serv-
Ices OF notary, in taking dispositions in an
other State, are worth, not exceeding what the
party has actually paid received But he
should not be allowed for taking two deposi
lions OF the same witness in another State.
unless the necessity of taking both appears.
Judgment modified by striking out FIVE dol
lars.
OPINION.
The defendants costs aud disbursements.
upon dismissal of the action having been
adjusted by the court below, upon an appeal
from the taxation by the clerk, and Judgment
having been entered for the amount of the
items allowed, the plaintiffs appeal to this
court.
The various items objected to by appellants,
are: First, an item of ten dollars which had
been allowed to defendants upon denial of a
motion made by plaintiffs. We can see no OBJ
lection to this being inserted in the Judgment
In favor of defendants. Second these copies
chattel mortgages, $500. If these were ma
terlal to the defence, and were as is stated in
the affidavit procured by defendants for that
purpose, it was proper to allow the expenses of
procuring them.
Whether they Were material the court below
could determine, while not, for it had
the answer before it, and we have not it's de-
clslon on the items, is affirmed. And So in
| regard to the item for i've afidavits. 1t could
determine, from it's files, the number used; we
have no means of determining. Third, for at
tendance and mileage of several witnesses:
The fact of the materiality of the witnesses,
their attendance for specified number of
days, and the miles travelled, stated in the
affidavit to the disbursements, and there is
| nothing In the character of the charge cir
CumStances OF the case, to throw suspicion
upon the charge nor to make more specific
affidavit necessary. Fourth, the court below
allowed 1928 in one instance, and $500 in
each of two other instances for compensation
| paid by defendants to notaries public in other
States for taking the dispositions of defendants
| witnesses. 1t is objected that this is more
than is allowed by the statutes of this State
or of the States where the dispositions were
| taken to notaries public for such services. The
| statute of this State does not fix the compensa.
| ton of officers acting in other State, and in
executing commission from this State, such
an officer is not acting under the laws of his
| own State. So that neither statute fixes the
| compensation in such case, and the only rule
| to act upon IS that adopted by the court below
to witt to allow what the services were worth
not exceeding the amount paid by the party.
/ But two of these items of $500 each were al
| fnrf IN n tNrn e
witness, and there is no necessity suggested in
the affidavit to the disbursements nor appar-
ent from the record, nor the nature of the case
for taking two dispositions of the same witness
without necessity for it appearing, both items
! should not be allowed.
The Judgment must be modified by striking
out one of these items for $500, and affirmed
as to the remainder without costs to either
party.
.1nson Bartlett, respondent Us. John !Sinsons md
| Ch0uncey II. Poyne appellants.
SYLLABUS.
continucr of nuisance, who is entitled to
notice before suit against him to abate it,
when sued with the creditor of the nuisance,
valves his right to insist upon such notice if
he joins in answer with his co defendant
solely upon grounds other than want of notice
and proceeds, till after the proofs are closed to
try the cause upon suck grounds of defence,
without any reference to the question of notice.
OPINION.
This Is an action to abate private nuisance.
The complaint states that Simons and one
Nichols, in 1872 constructed on their land a
dam, across the Blue Earth river which raised
| the water as to set back and flow the lands
of plaintiff, afterwards Nichols conveyed his
interest to Wallace and Wallace conveyed to
/ the defendant Payne
In 1874 after Payne acquired his interest
he and Simons raised the dam about a
foot higher than it then was, which increased
the overflow upon plaintiffs land. 1t alleges
| that those acts were wrongful and caused dam
age, inconvenience and annoyance to plaintiff
and 1t asks Judgment for an abatement of the
dam and FOR damages The defendants join in
an answer in which they deny that the dam sets
the water back or in any way operates to the
prejudice of plaintiff, and allege that by pro-
ceedings had prior to the commencement of the
suit they had acquired the right to maintain
the dam, and plead the statute of limitations.
There is no suggestion of any defense or ex-
emption from suit peculiar to either of the de-
PENDANTS, but the joint answer eventually pro-
ceeds on the theory that the rights and liabili-
ties of both defendants are the same and we
conclude from the findings of the court that the
| trial proceeded upon that theory till after the
evidence was closed and the parties came to sum
| up the cause
u uieic CoutllueT Oh d nuisance 1S entitled
| before suit is brought to abate it, to a notice
and opportunity to him to remove it by his own
act. Want of notice, however, does not make
the existence of the nuisance rightful. Such
notice IS merely preliminary to the bringing
of an action to abate. There lis no question
that a continuer of nuisance may waive his
| right to insist upon this notice, and we think
he does SO when he joins in answer with one
who cannot claim it and distinctly bases his
defense solely upon grounds other than the
want of notice, AID proceeds till after the
proofs are closed to try the solely upon the
defenses set up in the answer. and without any
reference to the question of notice.
| Judgment affirmed.
| Edn,nd Rice, Ho,uce Thomson unA Samuel j.
| Iilden, Trustees, Respondents, rs. The First
Division Of N,e ST. Paul d; Pac;fc ,oil,'oud
| company md George l.. Becker, appellants, I'M
| pleaded nth William e. Hoehead, Henry
| Hale and Tunes E. Sossthporth rs t,.us
| tess,and -Hnrtin Farraat, John D. GYuy, Augus
tbs hooe''s, Peters. LeClaire, Charles Heyecood,
James j. Ca,tletlge and Frank L. Honore
SYLLABUS.
Edn,u,M Rice, Horace Thompson and Samuel
H. Tizden trustees, Respoaoe,,ts, u.s. The First
Dirision of the st. Paul d Pacifc ,uHroad
company. ana George L. Becler, mp1euded
NTH The ST. Paul d; Pocitic yuilroad com-
loay, William G. Noreleud anil George
z. II. Darts, trustees, Martin Fo,1unt, Pete,.
S. LeCtaife, John D. G1uy, augustus lNooe,,s,
Charles Hey,rood, James j. Cartledge ai.d
Frank L. Horno1e, appellants.
SYLLABUS.