Omaha daily bee., 1885-08-15
SUPREME COURT DECISIONS.
nuNnRRRn AUGUST u. 1885.

htNbhhhD hSNlDl ~ iOOOs
State ex. rel. NATION, ys. Republican Valley
Railroad company. Mandamus; writ al
lowed. Opinion by Cobb, Oh. j.
1. The common law rule, requiring
common carriers, by land, TO mako per-
sonal delivery to the consignee, has bean
60 far relaxed as regards railways from
necessity as in most cases TO substitute In
place of personal delivery, q delivery at
the warehouse of the company. But this
Is upon ths ground that a railway has no
means Of delivery bsyond it, own lines.
Vincent We. The Chicago 81 Alton Rail
road company. 40 Ill. 50.
2. In consequence of such relaxation,
and In conside.atio thereof, the co-rela-
tive duty devolves upon railways as COM
mon carriers, to furnish aud maintain
suitable warehouses or 6epots, at all ap-
propriate points on their lines, for the
receipt and discharge of passengers and
freight.
8. The right to build and operate o
railroad, and to charge and take tolls and
fares is a %prerogativs granted by the
state. Public utility Ia the oonsidera-
ton for such grant. Although in the
hands of a private corporation, it Is still
a sovereign franchise and must be used
and treated as such; it must be held In
trust for the general good. Ia the uss
of such franchise, all citiz ,ns have an
equal interest and equal right, and all
must under the same circumstances, be
treated alike, without unjust diacrimina-
tlon.
4. The duty thus imposed, growing
out of aud resting upon the principles of
the common law, may be enforced in the
Absence of statutory requirement.
Real vs.. HOLSTER, error from Fillmorecounty.
Affirmed. Opinion by Reese, j.
L. In an action upon the covenants OF
a warranty deed for a breach of warranty,
proof that the real estate conveyed was a
farm recently before the execution Of the
deed purchased from the owner In pos
session and soon afterwards sold and con.
veyed to another person there being no
adverse claimant CT assertion of adverse
title, by any one, the absolute right,
title and possession being conceded In
the grantor to the last conveyance. Held
to be sufficient proof Of possession by the
grantor, prima facie, to justify the trial
court In finding that at rhe time of the
execution of the conveyance the grantors
were In possession of the land and the
covenants of warranty contained in the
deed, run with the land.
2. Where on the Oath day of June, 1879
upon the sale of real estate the convey.
auca Was by deed den omi 1atsd" warranty
deed upon Its face, bat which deed was
Of a form in common uss in some of the
as q warranty deed, but not of the
form used in this state where on the 14th
day of February, 1880, the grantor exc.
cuted and delivered to the grantee a
deed of conveyance of the form and kind
in common use In this state containing
full covenants of warranty, 1t was held
that such facts were sufficient to justify
the trial court in sn action commenced
on the 9:h day of December 1883, in
finding that the second deed was execut-
ed for the purpose of correcting the ap-
parent omission In the frat one, and that
the covenants of warranty of title run
with the land and would convey to the
grantee the right of the grantor to the
covenants of his grantor.
3. Where In an action against two do
PENDANTS charging them with the making
sHe DASoSh VI q UNIV Whtianhy Al thC
sale aud conveyance of real estate the
evidence Ia sufficient as to the other de-
PENDANT, the verdict and judgment being
against both, aud the m against whom
the evidence was insufficient made no
motion for q new trial as to himself
the Judgment vii, not be dis
4 Under the the provisions of the
a,t of the legislature of 1871, commonly
known as THE married womsn's act"
STATE. Oh. 53), a married woman
Ia liable upon her covenants of warranty
In the sale of the real estate which Is her
separate property whether she be joined
by her husband In Euch conveyance or
not, section 48 Of chapter 70 Complied
Statutes having been passed in 1866,
being by said &C; abrogAted.
o. Where In action upon the covenants
Of warranty of title contained Ia o deed of
conveyance OF real estate il Il shown that
! decree in equity has bsen entered
.gainst the grantee, aud plaintiff, setting
side his title and declaring tbat he held
- trustee for the plaintiff in that action |
nd requiring a conveyance to such plain
III, and whsra after Euch decree the
In the action conveys the land to |
third marty who In an action ne eiect- 4