St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1885-05-13
THE COURTS.
Supreme Court.

At yesterdays session OF the supreme
court all the justices were present and the
following business was transacted:
The City Bank, respondent, VS.. Jacob
Dali, appellant; argued and submitted.
In the matter of the application Of D. NJ
Robbins and the Northwestern Elevator
company to vacate certain lots, &C., appel
ants, VS.. Allie Hewitt ct al, respondents;
argued and submitted.
George A. Camp, appellant, VS.. City of
Minneapolis, respondent; argued and sub
mitted.
Adjourned to $3.50 a. m. to-day.
OPINIONS.
A. K. Barnum, Allie Hewitt, D. III. Hunt,
D. A. j. Baker, Daniel Baker, Walter
Hewitt, James B. Hewitt, j. B. Spen-
Ger and S. W. Searles, appellants, VS..
The Minnesota Transfer Railway Com
pany, respondents.
Syllabus-Plaintiffs, who own lands abut-
ting on a public street, are not entitled to
an action for a nuisance caused by the OBJ
Struction of another portion OF the same
street not on opposite their lands, and by
which access to such lands is not cut off.
(Shoubut VS.. Railroad, 21 Minnesota, SOP. }
The remedy must be one prosecuted in
behalf of the public, and the order sus-
tanning the demurrer should be affirmed.
VANDERBURGH, j.
Berry absent and took no part in the de-
ciSiOn.
James Clarke, respondent, vs.. The Chicago,
ST. Paul, Minneapolis & Omaha Railway
company, appellant, and Joseph living
Ter, respondent VS.. the same.
Syllabus egligence may be imputed to
a defendant railway company by jury
from evidence that cOmbustlble materials
have been allowed to accumulate and re-
main upon its land liable to be ignited by
sparks from its engines and to communicate
fire to property npon adjoining lands.
Evidence considered and held sufficient
to support the verdict.
New trial awarded. DICKINSON, j.
DISSENTING OPINION.
think that the verdict should be set
aside. The special findings of the jury to the
effect that the locomotive was effectively
constructed, and out of repair, are erroneous.
The evidence conclusively shows that the
facts in these particulars were not as found.
1t is not apparent that these erroneous
findings of the jury did not enter into and
affect their further conclusion, that there
was negligence in allowing colnbustible
ma tier upon the premises adjacent to the
track. The finding of negligence in this
latter particular was made by the jury, as
must be assumed, in the contemplation of
the circumstances, expressed in their find
ings, but which is contrary to the
evidence, that an engine in defec-
tive condition, as respects the escape
of fire. was being run over the road.
If the peculiar danger to be apprehended
from the running of a defective engine over
the premises had been eliminated from the
consideration of the jury, it is not clear that
they would have deemed the defendant
negligent in respect to the combustible mat
ter along the side of the road. The proper
measure of carefulness is to be determined
with regard to the nature and the degree of
danger to be apprehended. The case, there
fore, shows error which it is reasonable to
suppose may have affected the result. /
know no exception to the rule that in such
a case a new trial must be awarded.
DICKINSON, j.
Price Jones, respondent, VS., George Blake,
appellant
Syllabus Where a conveyance Of real
estate absolute in form is made, merely as
security for loan, it is to be deemed a
mortgage and the subsequent surrender of