St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1893-05-12
PLAINTIFF NOT IN IT.
The Supreme Court Reverses a
Peculiar Railroad
Suit.
Divided in the Decis-
ions.

The most interesting case decided by
the supreme court yesterday was that
of Daniel Brown, respondent, against
The Winona 81 Southwestern Railway
Company, appellants.
1t is related that Daniel Brown
brought suit against the railway to re-
cover damages from ~over1owage. The
railway company constructed its road
running across the village of Utica, and
in doing so raised an embankment,
taking the earth from each side of the
track, making on each side what is
termed in railway parlance a borrow
pit" The surface waters, from rains
and melting SHOWS, formerly flowed in
a direction opposite that which they are
forced to flow by reason of the embank-
ment, so that the waters now flow upon
the plaintiffs lot. Formerly they
flowed through a culvert and into a
stream. The court below held that the
plaintiff was entitled to recover.
The opinion of the supreme court is
voluminouS and exhaustive. and the
syllabus of Chief Justice Gilillan's de-
cision ~recites.
The rule stated in O'Brien VS.. City of
st. Paul, % MINI. Sd, that IAN owner
may improve his land for the purpose
for which such land is ordinarily used,
and may do what is necessary for that
purpose. he may build upon it. or
raise, or lower its surface, even though
the effect may be 10 prevent surface
water, which before flowed upon it, from
coming upon it, or to draw from adjoin-
ing land surface water which would
otherwise remain there, or to shed sur
face water over land OH which it would
not otherwise 60" followed and held
that it makes no difference under the
rule that the water shed over other land
passed to it in a stream instead of in a
diifuSed tanner.
In the matter of arbitration between North
western Guaranty Loan company and
Charles &. Channell. Northwestern Guar
anty Loan Company, appellant, VS.. Charles
b.. CHANNEL, respondent. Order affirmed.
GILFILLAN, G. j.
An agreement to submit certain mat
tiers to a%rbitratOrS under the statute is of
no effect If the names of tie arbitratOrs
are not in it when it is acknowledged.
They cannot be inserted afterwards.
The statutory rule for computing time
does not apply TO ascertain the day, or
the last day, on which a thing may be
done, where such a day is expressed by
its date.
Everett Hammons, appellant, VS.. Great
Northern Railway Company. respondent.
Order affirmed. GILFILLAN, G. j.
A lien cannot be created upon a mere
right of action for a personal tort.
John Lundberg VS.. S. 4. Palm Ell al, Ole
BANNER, respondent; David A. Corey. ap-
pellant. Order reversed.
GLFILLAN, c. j..
III an action to foreclOSe a mechanics
lien the fact that it was not commenced
within II year after the date of the
plaintiffs last item, by reasOn of which
he cannot recover, will not prevent a
recovery by a lien-claiming defendant
whose answer is filed within a year after
the date of his last item.
knowledge i'll an agent authorized
only TO sell real estate, that a building
is being constructed on it, is not knoWl-
edge in the owner for the purposes of
Laws 1889, chapter 200, section ).
Evidence held insufficient to sustain
a finding of fact.
NJ. j. O'COnnOr, respondent, VS.. Martin De-
laney. appellant. Order ana judgment af-
tirmed. G|ILFLLAN, c.. j.
Evidence held sufficient to sustain
findings of fact. Variance between
pleadingS and proofs held to have been
waived.
Where one coztenant Of real estate
rents his share to the other for a term
at a specified rent, and the latter re-
mains in exclusive possession after the
term, he will be held 10 do 50 in his
character of tenant, and the same rule
as to rent will apply as in case of any
tenant holding over.
Wilbur S. Reynolds. appellant. VS.. Sydney II.
Curtiss ell al, respondents. Order affirmed.
GILFnLAN, Z. j.
Evidence held insufficient TO sustain
a finding of fact.
Stephen c.. England, as administrator of the
estate of Anna Brooks, deceased. appellant,
VS.. LauritZ TOllefSOn ct al. respondents.
Order reversed. GILFuLLAN, c.. j.
A charge held because it
might miSlead the jury to suppose they
could, from the evidence. find a certain
fact, there being no evidence OF such fact.
William Mics, respondent, VS.. Walter II.
Thompson, Appellant. Order affirmed.
GILFHLAN, c. j.
Service upon an attorney at his office,
he being absent, can be made by leaY-
ing the paper i'll a conspicuous place in
the office only when there is in the
Office no clerk Of his or person having
charge thereof.
Charles c. Boyd. appellant. VS.. Luther Men
denhall ct al. respondents. Order reversed.
GHFILLAN, c. j.
When information is given one upon
which he institutes a criminal prOSecu-
ton, and he at the time knows that
upon inquiry of certain persons it may
be ascertained that no OffenSe has been
committed, and there is no difficulty i'll
making, nor other reasons for not max
ing such inquiry, he is to be charged, on
the question of probable cause, with
knowledge of such facts as he would
have learned had he made the inquiry.
State of Minnesota, ex rel. Charles E. Shan
non ct al, REALTORS, VS.. Judge District
Court of Eleventh judicial District ct al,
respondents. Former decision adhered TO.
GILFILLAN, e. j.
The decision of the last October term
to the effect that by the charter Of the
city of Duluth a permanent grade for a
street must be established before pro-
ceedings can be begun to permanently
improve the street at the expense of the
property, adhered to on Teargument.
The following cases were considered
by the supreme court yesterday:
Elizabeth l.. Willis, respondent, VS..
st. Paul Sanitation Company ct al, de-
PENDANTS, and E. l.. Mabon, appellant;
submitted on briefs.
st. Paul d Duluth Railway Company,
appellant, VS.. Village of Hinckley, re
spondents; argued and submitted.
Edward w. Brown, appellant, VS..
William E. Haskell, respondent; argued
and submitted.
Frank Mullen, respondent, VS.. North
ern Mill Company, appellants; ordered
that appellants application for reargu-
ment be and the same is denied, and
stay of proceedings vacated.
BUSINESS AND PLEASURE.