Omaha daily bee., 1903-05-02

was occupying the right Of way without any
lawful right to do SO. The district court
sided with the Independents and the other
company appealed to the supreme court.
In discussing the matter the court says
that II cannot give assent TO the claim Of
the Bell people that the statute giving
telephone companies the right Of way for
pole lines along the public roads Of the
state permits them to put up their wires
in the streets and alleys OF towns and VIII
lagos. The usual and common understand
ing OF public road is rural highway. The
legislature undoubtedly had this in mind
when 1t mentioned public roads in the act,
the popular distinction between public
roads and streets and alleys and used the
former in the sense generally used and
not In the generic sence. Had It regarded
the right Of way for telegraph and tele-
phone poles on the streets and alleys of
municipalities of such transcendent i'm
portance to the public, says the court, as
to Justify the legislature to grant 1t, 1t Is
not probable that at the same time It would
have clothed the municipalities with ex-
press authority to do so.
The court holds that the occupation by
the old company of the streets and alleys
of Louisville is without lawful authority,
an unauthorized obstruction OF the public
thoroughfare as to constitute a nuisance
at common law and punishable as such.
The plaintiff invokes the equity powers
Of the court to protect it in the main
tenance of a public nuisance and In doing
an act punishable under the laws. This
court knows of no instance where a court
Of equity lent its aid to such ends" con-
cludes the opinion.
Reverses Damage Case.
The damage case Of George Holmes, jr.,
administrator of the estate Of one Oakleaf,
was reversed because Of erroneous evil
dence, that was not testimony but conclu-
sion, admitted by the lower court. The
Rock Island Railroad company was the de-
PENDANT. Oakleaf was a Union Pacific
switchman and while at work coupling
some cars a Rock Island engine bumped
a string Of cars down against the one he
was at. The accident occurred on an In
cline, where a small push would send the
cars down the hill. .Oakleaf had tried to
make a coupling twice and went between
the cars to see what was the matter. Then
the thing happened. The company claims
that he was negligent in that he ought not
to have gone in between the drawheads
at all. as that was unnecessary, and that
at any rate he should not have turned his
back on the point where danger lay.
Big Sum is Involved.
The Tustler estate case was finally de-
cided at this sitting. This has been some
what famous as a lawsuit, as IL involved
a very large estate, Dituated in Dane county,
Wisconsin, Omaha and Wyoming. DR.. Fox
was the executor Of the will of Mr.. Tustler
and later acted as administrator Of his
Widows estate after her death. The heirs
did not like his management and there has
been considerable litigation over II. They
insisted that certain sums he asked credit
for should not be allowed, and in the county
court Of Douglas county for Judgment
against Fox for &ss, ss1.74. Fox appealed
to the district court. Here he secured
judgment for $445.65 against the estate. The
court ordered him to file q remittitur Of
$455, and the case really came to the SUI
preme court upon an appeal from this 90
cents judgment in the Douglas county dis
trict court.
The supreme court upholds Fox In the
matter in every particular, and while as
sorting the belief that he ought to have
had judgment for more than no got. az
firms the judgment OF the lower court. Fox
claimed $500 as due him.
Ex-Secretary Of the Interior William r.
Villas came to Nebraska several months ago
to argue the case on behalf Of For. and the
victory Is his.
Doctor Must Pay for M~aIpraetice.
The Judgment of s1.14o obtained BY g. H.
IACroix in the district court Of Wayne
county against DR.. H. G. Leisenring for
malpractice will stand says the supreme
court.
other Suits Decided.
The attempt of william LeIl OF Holt
county to have set aside as fraudulent spd
void a Judgment for t116 In the court Of
Justice Westermann Of Lincoln failed. lei
owed ]. A. Hudelson of Lincoln on a note
He said Hudelson transferred It to Hess a
Salisbury and they sued Hudelson and LeII
The latter insisted he had a perfect defens,
to the note and that II was all a scheme II
get jurisdiction over him in Lancaster
county far from his home. The suprem,
court says 1t cannot give him any relief be.
cause ne ned an adequate remedy at law
In that he could have made a speciaI an.
p~earance and defeated the action brt =,
neglected this, and 1t Is all day with hin
now.
The trouble over the estate OF Andsr.o,
d. Whitcomb Of Saline county. who a.,
In May, 1900, is sent back By the sunreu,
court for settlement In accordance with A.,
III III
ideas. Whiteomb directed in his win the
the estate be divided between hts 6y
children, but that the advances to william
and Walter be deducted and the amour
due them placed in a fund for their ma
during their natural life. A dauRb,e
asked for a partition and a number OF le1a
questions were at once involved becaus
Of the trust provision. The court direct
that the decree be amended SO that IN,
trust Is carried out and not brusquely a.
aside, as the district court did.
In the case OF Story against Oammeu
|, from Burt county. the supreme court saw
that. even though the papers have passe,
to an innocent purchaser, a eontrao
wherein a mutual mistake was made ma
be reformed. The plaintiff, II saws. wa
/ grievously wronged through the mistake q
G. W. Conkling, in writing down that
note should bear 10 per cent instead Of
per cent, as agreed upon, and affords tn
relief prayed for.
Attorney Must Pay.
Thomas B. Garrison will get his sbo
which he paid TO Attorney A. Norman I
settle up the estate OF the grandparents @