St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1896-01-30
LOCAL CASES in. THE LIST.
ONE INVOLVING TIE LOWERING
APARTMENT HOUSE ON SELBY
AVENUE.
NEWS FROM THE OTHER COURTS.
GrOccrs Win Victory in the Test
OF the Retail License
" Law.


ing that involving the Lowering apart
ment house on the hill, in which the
decision Of the lower court is affirmed.
The following are the syllabi:
Farmers National Bank. OF owatonha. re-
spordent, VS.. Hiram Backus ct al. defend
= ants, c. w. Burdic appellant.
!. In an action to foreclose mortgage the
insolvency of the mortgagor. the inadeQuacy
of the security and the failure to apply the
rents OF the mortgaged premises In keeping
W the security by paying delinquent taxes
and interest past due the prior mortgage
is a sufficient ground for the appointment Of
receiver pendente lite to collect the rents
and apply them.
2. That the mortgagor at the time of max
Ing the first mortgage gave the mortgage
therein named written assignment Of these
rents, cannot be urged by the mortgagor as
reason why receiver should not be ap-
pointed.
3. Held the court below after giving the
parties ample opportunity to present afhdaYits
on the motion did not abuse its discretion in
refusing tG near any more afidavits not pre-
scented al the proper time.
l. Held the appellant, who was not origf-
nally party to the action, voluntarily ap-
peared and became party by appearing and
opposing the motion on the merits and sub
uniting TO and complying with an order then
anc there made making him party, not
withstanding his claim that he appear
ing specially only Order affirmed.
-Canty, ].
Becker Syendson, appellant. VS.. State Bank,
Of Duluth, respondent
When banker has in his hands funds OF
a deposstor for the purpose OF paying the de-
pusitor checks and the depositOr is trader
or merchant and his check is dishonored By
the banker and returned to the payee for the
alleged reason that he has not sufficient
funds OF the maker in his hands to pay the
same, when he il fact has. it amounts to a
SANDER OF the merchant or trader in his
business, and he is entitled to recover gen.
eral compensatory damages in action
against the banker. Order reversed.
CAVITY ].
Frank s CoIvin ct al, appellants, VS.. John
B. Weimer ct al, defendants, Virginia Iron
company ct al, respondents.
General Statutes 1894, sec. $3.50, provides
that whoever performs labor, etc, for grad
ing, filling in or eXcavating any land" etc.,
shall have lien upon the land for the price
nj his labor.
Held, that hole drilled In the ground
solely for the purpose OF ascertaining wheth-
Ell there is ore underneath, and, IL So wheth-
ar it exists in paying quantities is not an eX-
caVetion Of the land for which the statute
gives Isn: that the statute only refers to
excavations made for the purpose and in the
progress OF making improvements upon the
land Judgment affirmed
------- Mitchell, ].
John Is. Gillian, respondent vs. Anton
Schmidt ct al, appellants.
The lands OF the defendants were situated
Immediately north Of those of the plaintiff,
those OF both parties sloping to the south at
n grade OF nine feet to the mile The north
part OF defendants lands formed water
ihed, the surface waters from which natu-
rally drained into large pond or marsh
(which was fed entirely by surface water.
r his pond or marsh had a natural outlet at
ats south end whence in the wet seasons OF
Rhe year its waters flowed through a fairly
well defined channel waterway southerly
to and across plaintiffs land into a small
kake and thence into Lake Minnetonka. This
- as the natural and only feasible drainage
u defendants lands. In wet seasons the
POND marsh on defendants lands filled
with surface waters from the surrounding
watershed, covering thirty or forty acres, but
At other seasons ran of, evaporated was
absorbed by the soil until the water only COW
cred a few acres to the depth of from two or
three feet down to only few inches. Much
Of the adjacent land, although wet and
marshy, was susceptible of valuable improve
ment by drainage, but the waters stood
them SO late in the season to render them
,PalueleSS. About fifteen years ago the de-
PENDANTS, for the purpose Of draining these
lands, deepened the outlet of this pond or
marsh and the natural waterway thence south
towards plaintiffs land about two feet, thus
draining and reclaiming much land which
would otherwise be valueless. They did not
divert any of the water from its natural
course, but merely aided the natural system
OF drainage. Neither have they done any:
thing more than necessary in the inter-
ests of good husbandry: In July, 1892, there
a very unusually heavy rainfall which
filed up the pond or marsh on defendants
lands from which the waters flowed IN great
volumes through the outlet and channel
reached the north side of plaintiffs land
large quantities of this water left it's natural
course and Overfiowed in another direction
upon plaintiffs meadows, greatly damaging
his crop of hay. There is no evidence that
the water has thus overlooked either before
or since, that it is likely ever to occur
except under exceptional circumstances in
case of unusual rainfalls. Assuming that
this overflow caused by defendants deep
ening the natural lire of drainage it does
not appear that plaintiff cannot protect him
self against its recurrence at small expense
compared with the benefits resulting to the
defendants by reason of the improved drain
age of their lands Held:
l. That the evidence does not justify the
conclusion that the overflow and consequent
damage to plaintiff caused by the acts
of the defendants in deepening the natural
outlet and way for these waters.
g But even if such acts will in case of I'M
usually heavy rains render the water more
liable to overflow or to cause greater quanti-
ties of it to overflow upon plaintiffs mead
ows, yet under the modified common law
rule as to the disposition OF surface waters
adopted in this state and within the rules
laid down in Sheehan V. Flynn, 81 NJ W.
Rep. 1852, the defendants had a right to do
what they did in the reasonable Improvement
of their own lands Order reversed.
Mitchell, ].
Stephen Schip, appellant vs. Pabst Brew
ing Company respondent.
The owner of an old building which had
= become dangerous by reason of decay en-
gagged an independent contractor to tear it
down. The work was dangerous and the con-
tractor was incompetent personally to super
intend the same, all of which the owner knew
when he let the contract. BY reason of the
contractors incompetency his servant was
injured while employed in the work
Held The owner is not liable to the servant
Order affirmed. -Canty, j.