St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1896-01-25
SALTWATER GAS COMPANY APP
PEALS TO THE SUPREME COURT
IN VAIN.
HEAVY OUTPUT OF DECISIONS.
SEVERAL IMPORTANT RULINGS
ARE FOUND AMONG THOSE
FILED YESTERDAY.
a ST. LOUIS COUNTY TAX CASE.
People Failed to File Their O0jec-
tions Within the Time Spcci-
fed by Law.

Judges Mitchell and Buck both con-
tributed to the output of decisions in
the supreme court yesterday, the de-
-cision of widest interest, perhaps, be-
ing Judge Mitchells finding in the
case of James Matthews against the
Saltwater Gas company, involving the
smoke and SCOT nuisance. The decis-
ion is in favor of the plaintiff and may
necessitate the removal Of the gas
works. The following is the syllabus:
James Matthews. respondent, Saltwater
Gas and Electric Light Company, appel
liant.
Action to enioin the maintenance of nui-
sance caused by the escape Of nauseous and
offensive gases from gas plant, and smoke,
cinders and scot from an electric light plant
owned and operated by defendant into and
upon the adjacent premises of the plaintiff.
That part of the plant constituting the gas
works had been operated by defendant for
fifteen years, but had been enlarged and the
mode Of making gas changed within that
time. That part of the plant constituting the
electric light works had only been built and
operated about eight years
The plaintiff did not object to the construc-
ton of the works while they were being
built but ever since they have been oper
ated has continuously objected to and
monstrated against the acts creating the nui-
sance.
Held, that the plaintiff is not estopped by
his conduct from Directing to the continu-
ance of the nuisance.
Also. that defendant has not acquired a
right by prescription to maintain the nui-
sance.
To constitute adverse use requisite to
sustain a right by prescription to maintain
nuisance the nuisance must have been
continued in substantially the same way and
with equally injurious results for the entire
statutory period. Judgment affirmed
Mitchell ].
Tn ie.iA
cides the West Duluth tax cases in
favor of st Louis county. The test
case was brought by Martha H. Nor
ton, AS eXecutriX of an estate which
had been taxed for public improve
ments, under the law of 1894, providing
property fronting on such improve
ments or benefited by them shall be
assessed without regard to cash valu-
alton. The parties assessed made no
objection to the assessment until the
county auditor applied for Judgment
2 against the property, nearly two years
after the assessments had been con-
frmed and the bonds issued. The SUI
preme court now holds that the objec-
ton came too late, and the parties
having failed to file their objections
within the time specified by law, they
were concluded by the proceedings
against them. 1t is also held that the
same penalties may be added for the
non payment of taxes for special i'm
provements as for the taxes levied for
general purposes. Following is the
syllabus:
In the matter of the PROCEEDINGS tn enforce
payment OF taxes, ETC., in St Louis county
VS.. Martha H. Norton, executrix, ETC., de-
PENDANT.
General Statutes 1894 section 1887. author
ICES certain municipal corporations to levy
assessments for local improvements upon the
property fronting upon such improvements or
ia p6 hu
improvements without regard to cash vaua-
ton. Pursuant to this power the municipal
authorities of the Village of West Duluth
leVied an assessment against certain prop
erty therein situate, for the purpose of MAX
Ing improvements, and gave due notice of
the time and place when such assessment
would be confirmed, and also that it was
proposed to issue bonds chargeable to the
real estate tic be benefited by such improve
ment to any such assessment and that the
property owners affected by such assessments
might then and there appear and file their
Jections, nor did they appeal from such con-
1irmation to the district court as provided
by law. Gen. st. 1894, sec. 1343. reads in
mentioned in such notice or at such time
and place as they may adjourn to, said village
council shall meet and review and confirm
such assessment which confirmation shall
be final except as hereinafter provided. And
no omission. informality or irregularity in or
preliminary to the making of any special
assessment for any local Improvement shall
after such confirmation affect the validity
of such assessment unless objection specify
ing the ground thereof shall have been made
In writing and duly filed with the village
recorder on or before the date of such con-
frmation."
General Statutes 1894 section 1896 reads
as follows: mo action shall be maintained
to avoid any of the special assessments of
taxes levied pursuant to this chapter after
bonds have been issued covering such special
assessments and said bonds shall be concu-
sive proof of all the proceeding on which
the same are based
dc nh,
duly issued and no action commenced to
avoid the assessment. When the county au-
ditor applied for Judgment against the prop
erty under General Statutes 1894 chapter
IL, more than two years after the issuance
of the bonds. the defendant interposed various
objections to the validity of the assessment
and to the confirmation thereof.
Held, that the property owners had
failed to interpose their objections within
the time allowed by law, they were con-
cluded by the proceedings had against them.
Held, also, that in of the non-payment
OF taxes levied by municipal corporation
for the purpose of making improvements,
penalties may be added in the same manner
and to the same extent as In case of non
payment of taxes levied for general purposes
Alhrmeo. Buck, ].
The syllabi in the other cases follow:
Anna Leonard, as Administrative, respond
ent, VS.. Minneapolis st. Paul G sault Ste
Marie Railway Company, appellant
Where the evidence is conflicting or is I'M
certain as to the existence of negligence OF
contributary negligence, the question is not
one OF law but of fact, and should be settled
by the jury, and this is so whether the evil
dence is conflicting uncertain or because
the facts being undisputed fair-minded men
might honestly draw different conclusions from
them.
The deceased, brakeman in the defendants
employ, undertook to couple an engine and a
nat car, with what is known as a "piot con-
ping, and while doing was crushed be-
tween the bumper of each and killed. Held
that the question of the negligence of the en-
gineer in charge of the engine in handling
1t, and that of the contributory negligence
on the part of the deceased were properly sub
mitted to the jury. Order affirmed
Buck, ].
J. ]. Young respondent, VS.. The Grand Coun
ell of the Ancient Order of Aztecs appellant.
The grand council of the Ancient Order of
Aztecs issued its certificate to member of
one of its subordinate councils, wherein it
was provided that the order should paw such
member weekly indemnity of SIS per week.
In case of his disability arising from acct
dent or sickness, and one of the rules Of the
order was follows:
at shall be the duty Of every claimant for
disability to give notice at once upon the dis
ability arising, to either the commander or
secretary of the council, and the council re-
lief committee shall thereafter make a thor
ough investigation of the case by personal
visitation, by at least two of said COMMITTEES
GAZING upon the applicant at different times
during each and every week of the disability
and certifying upon the proof from such per,
sonal visitation as to the bona fides OF the
Instability and its continuance for full weeks
Shall also see the applicant personally at least
once for each week. NJ Disability ond oo,t:rs