St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1894-01-31
NO PRIVATE RAILROAD.
THEODORE HMM DEFEATED IN THE
SUPREME COURT.



Property-City Has No Power
to Pass an Ordinance Grant
ing Such Right-Private Rail-
roads Have No Standing. q "a
| The supreme court yesterday handed
down thirteen decisions, eight of which
were written by Chief Justice Gilfillah,
and the remaining five by Judge Mitch
ell. One of the latter was the case Of
Charles neutrality-suspicious. VS.. Thee
dore Hamm, respondent, in which tile
appellant disputes Mr.. Hamm's right to
build private railroad across the street
in front OF another MANS property, or
rather the right of the city to grant him
that privilege by ordinance. The court
holds that the city has no right to grant
a license to operate a purely private
railroad across public streets, and the
decision of the lower court is modified
by holding that Gustafson should be
granted a continuance restricting order
prohibiting the operation of the
road. Justice Canty dissents from
the opinion of the majority of the court.
and atfirms the decision of the lower
court, that the owner of the property
may lind remedy in separate damage
suits, but that he has no right to draw a
| 1.-The which on the earth may be oper-
ated i'll the nature of Chinese wall
The case will be remanded. and an
action restraining Hamm from operat-
ing the road maintained. The road
crosses Fauquier street in a triangular
manner, aud it is claimed that the
smoke and cinders from the loco
motives injure the property. The fol-
| lowing is The syllabus:
Charles Gustafson appellant vs. Theodore
Hamm, respondent Judgment modified
MITCHELL j.
The city council of ST. Paul has nc
authority either under g. S. 1878. CHI. 81,
sec. Al or S. l.. 1889. CHI. 81 to grant a
license to construct and operate purely
private railroad upon or across public
streets. These statutes have references
to railroads which perform the duties
of common carriers, and are therefore
public or quasi-public in their charac-
| acter.
AS the owner of lot abutting on a
street has, as appurtenant 10 the lot
and Independently of the ownership of
the fee of street, an easement in the
street, to its full width, in front of his
lot tor the purposes of access, light and
and air, which constitutes property,
therefore the maintenance and opera
ton of railroad on any part of the
street IN front of his lot so as to pollute
the air and thus depreciate the rental
value OF the premises constitute posi-
tive invasion of property rights for
which the owner may maintain pri-
vate action. And where his legal right
is clear and the nuisance or treSpaSS-a
continuing one he may malntain an
action to enjOin it.
The syllabi in the other opinions
handed down are as follows:
ners as Allen, Moon & Co. appellants, VS..
| z. W: Mcintyre, respondent. Order at
frmed. MITCHELL j.
Evidence held sufficient to Justify the
court i'll setting aside Acknowledgements
OH the ground that the summons mad
not been served on the defendant.
a. NJ Lawton ct al, respondents VS.. St Paul
permanent Loan Company. appellant
Judgment affirmed MITCHELL, j.
The defendant made loan to one l.
of $4,000, secured by a real estate mort
gage containing covenants of title.
There being certain tax titles OIL the
premises defendant and l., as part of
the transaction, executed written
agreement by which defendant was to
retain $500 from the amount of the5loan.
the $500 to be paid to plaintiffs when
ever the title of the mortgaged premises
was freed from all claims arising under
the tax titles, OF upon payment Of the
mortgage in full, and until the occur
renee of one Ofthese events the $500 TO
be retained as security for the payment
OF the mortgage debt.
The title to the premises has never
been freed from the tax .title, but upon
default liz the condition of the mortgage
uebt, the defendant, under a power, sold
the mortgaged premises, itself bidding
them in for the full amount of the debt
$1,000 and interest.
In an action by the plaintiffs to re-
cover the $500. claiming that the mort
gage has been paid IN full by the tore
closure sale, held that the writing was
a contract, and not mere receipt, and.
that although plaintiffs were not party
to 1t. vet being the basis and measure
of their right of recovery, the rule that
written instrument cannot be varied
by parole is applicable.
Held also that the $500 stood as addi-
tional security for the payment of the
mortgage debt, aud not as security for
the performance of the covenants of
title in the mortgage, and hence did not
pass to the defendant as purchaser at
the mortgage sale; that what defendant
bought at the sale and for which il made
its bid was the land as warranted by the
covenants without reference to other
securities held by it for the payment Of
the mortgage debt.
Sarah j Galloway. respondent VS.. Chicago
Milwaukee x st. Paul Railway Company
appellant Order affirmed.
MITCHELL J.
While railway company has no right
to interfere with United States mail
agent in the discharge of his official
duties, yet it has the right, and il is its
duty. to prevent him, while on it's
trains, from continuing any dangerous
practice of which it has notice which is
liable to cause injury to passengers and
others lawfully on its premises; and it
the practice is one from which such
injury might be reasonably anticipated,
it is not necessary III order to charge
the company with this duty that on
some former occasion like injury had
occurred.
Evidence considered and held suffi-:
cient to justify the jury in finding that
the mail agents on defendants trains
had been SO long and SO frequently in
the habit of throwing mail sacks FROM
moving trains upon the station plat.
form, used and occupied by the passeus
gers and others lawfully there, as to
charge the defendant with notice of the
fact; also the finding that this practice
was one from which such injuries as
those sustained by the plaintiff by being
struck by mail sack might have been
reasonably anticipated; also in finding
that the part Of the platform where the
injury was sustained was one which
was in the habit of being used by pas.
sengers and others by the license or
implied invitation of the company.
He'll also that tho DAMAGES
are not So large as to warrant this court
in setting aside the verdict as excessive.
Walter Cox. appellant, VS.. Anna F. Marvel.
respondent. Judgment reversed. e
MITCHELL j.
Opinion on former appeal go Minn.,
81 adhered to.
A statutory guardian is subject to the
| a; IL