Omaha daily bee., 1895-09-19
SUPREME COURT PROCEEDINGS.
Arguments OF Attorneys I'm the Omaha
Canal Cnsc Concluded.
ME


LINCOLN, Sept. 1s.-(Special.)-The at
torneys engaged in the Omaha canal case
completed their arguments before the SUI
preme court today and submitted it. Attor-
ney Kennedy, representing the canal trustees,
gave notice that he would file a reply brief
the first Of next week covering a number Of
points omitted in the original brief. Attor-
ney ofutt made an extended argument at
lacking the constitutionality Of the bill. He
also urged that 1t was legally and funda-
mentally wrong to permit a district court
to name canal trustees. It conferred on the
judiciary a power that belonged exclusively
to the executive branches of government. He
cited an incident which, he said, occurred In
Omaha, wherein a prominent citizen while at
lunch with a district Judge asked outright
for an appointment on the canal commission.
Mr.. Kennedy replied vigorously and the case
was submitted.
The Dodge county supervisor case was ar
gued today before the supreme court and
submitted. Judge Maxwell and Attorney
Hollenbeck appeared for the old board for
the purpose of testing the constltutionality
of the new law passed last winter, which re-
duces the lumber Of supervisors In any
county In the state to seven. j. Il. Frick
and County Attorney Abbott appeared for
the new board organized under the new law.
This case has created considerable excite
ment in Fremont and has been the subject
Of widespread controversy. A similar case
from Adams county was also submitted on
an application for a supersedeas of the judg-
ment of the lower court, which held the new
law constitutional.
WATER MAY BE TAKEN.
An appeal from the decree of the district
court for Furnas county, perpetually restrain
ing the Cambridge and Arapahoe Irriga-
ton and Improvement company from divert
ing the waters of the Republican river for
the purpose OF irrigation, was sustained and
the decree Of the lower court reversed and
the action dismissed. The opinion was writ
ten by Justice Post and is one of the most
important before the court this term. Fol-
lowing is the syllabus:
Clark against the Cambridge and Arapa-
hoe Irrigation and Improvement company,
ct al. Appeal from Furnas county. Re
versed. Opinion by Justice Post.
The courts of this country have not as a
rule adopted the common law definition of
the term navigable waters, which here in
clude those waters only which afford a
channel for useful commerce. whether the
beds thereof are public or private prop
erty, and without regard to the influence of
2. The courts of this state take notice
without proof that the Republican river is
unnavigable.
3. Except as abrogated or modified by
statute, the common law doctrine with re-
spect to the rights of private riparian pro-
p~rietors prevails in this country.
A. The right of a riparian proprietor as as
pa vi w WAY - ~ 'NN'N
of the general public, upon full compensa-
ton and in accordance with established
law.
5. The provision of the irrigation law of
1889 and the act of 1893 amendatory thereof,
abolishing riparian rights in all streams
over twenty feet in width, is a clear inva-
sion of private property and within the
prohibitive features of the constitution.
G. A sutton who has by his laches made II
impossible to prevent the completion or use
of public works without great injury to his
adversary, or inconvenience to the public, is
not entitled to the preventive remedy of in
junction.. but will be confined to the relief
obtainable by ordinary means in a court OF
law.
Opinions of the supreme court filed today
Robert Hare, plaintiff in error, against e
W. MY MURPHY, defe nd ReYepsed and re
" Hiram G oS McMil! eS , Saseiss r befcrest Rich
ards. Judgment of lower court reattirmed
Opinion by Chief Justice Norval.
w; A. Pollock, plaintiff in error, agains
lower court affirmed. Opinion by Commits
sioner Raglan.
George Graves, plaintiff in error, agalns
Norfolk, National bank, defendant. Judg
Commissioner Ryan.
The Kilpatrick-Koch Dry Goods company
plaintiff in error. against Strauss, Uhlmai
& Guthman. defendant. Reversed. Opinion
by Justice Post.
SOME SYLLABI.
syllabi of decisions given yesterday, save
Scott-Percival alleged contempt cases (al
ready published):
Muller against Plue ct al. Appeal from
Lircoln county. Reversed and remanded
Opinion by Chief Justice Norval.
In an action before a justice of the peac,
record must show that legal service of tn,