The Minneapolis journal. [volume] (Minneapolis, Minn.) 1888-1939, 1905-11-10
SUPREME COURT

county, respondent.
The law regulating criminal procedure
Of a municipality provided that when an
offender was in custody he should be
brought before the court without process,
and the clerk should enter upon the rec
ords OF the court a brief statement OF the
offense with which he was charged, the
statement to-. stand in place Of COM
plant Relator having been arrested
without warrant, was taken before the
court charged with drunkenness and dis
orderly conduct, and the record of the
is as follows: The city Of
Duluth VS.. Joseph Sheehy. Being drunk
and disorderly. Sept. 81, 1904, on COM
plant of Officer Wilcox, defendant
(Joseph sheehy), being in court pleads
not guilty. Trial set for II o'clock am.
today. Bail fixed at $3.50, in default Of
Sept. 81, 1904, II am. Case called. De-
PENDANT in court. Frank Wilcox, James
Dingwall James Rockwell and Walter
Lloyd, called, sworn and testified for the |
city City rests. Joseph Sheehy, Bert |
Sommerfield, Norman Balm and Peter
Quinn, called, sworn and testify for the
defendant Defendant rests. Thereupon |
the court ad1udges the defendant Guilty
and sentences him to be committed to the
county Jail for a period Of sixty (6O) days
at labor Defendant committed"
Held: The court did not acquire juris-
diction of relator for the reason that the
complaint failed to state public offense,
Relator discharged. Lewis, ].
Security Trust company, appellant, VS..
Frank H. Joesting ct al. respondents.
Ffrst-The sole office Of the rules of
judicial construction is to ascertain and
declare the intention of the parties as
made apparent and evidenced by the Ian
guage or the instrument construed, taken
in it's entirety, and particular forms of
expression, technical legal phraseology
and rules OF grammatical analyzation,
are not conclusive. The writing is taken
as whole and the various provisions
thereof, If incongruous and inconsistent,
made to harmonic and unite in a. con-
sistent agreement in cOnsonance with the
intention of the parties.
second-A deed of real property con-
veyed to the grantee "a perpetual ease
ment for the purpose OF public levee OF
street only over and upon lots numbered
two in block "A and lots three. four and
ave IN block &C. in Robert
sons addition to West st. Paul, accord
ing to the recorded plat thereof and also
lots mum ered five and six In block two
in Marshalrs addition to West St. Paul.
80 Held, that a perpetual ease
ment only was transferred and conveyed
by the deed, not only to the lots in Rob
ertson's addition, but also to those in
e@AAA
upon" Immediately preceding the de-
scription of the lots in Robertson's addi-
ton must, to effectuate the intention Of
the parties, be supplied by intendment
Immediately preceding the description of
the lots in Marshall's addition. ~
Order reversed. 5. Brown, J.
Lewis Ellington, as administrator of
the estate of Hans Hermand Arneson, de-
ceased, appellant, VS.. Great Northern
! Railway company, respondent.
First-To render a railroad company
liable for injuries resulting from the OPP
Grafton Of it's trains Or other conduct of
| it's business and affairs, it must appear
| that the company failed in the perform
ance Of some duty 1t owed to the injured
! party.
second-A railroad company, as gen.
eral rule, owes no duty to trespasser
| upon it's premises, child or adult, except
| to refrain from wantonly Or wilfully in
| juring him. ag 81
Third-On the facts disclosed by the
record, which are stated in the opinion,
it is held that plaintiffs interstate was,
at the time of the injury resulting In his
death, to recover for which this action
was brought, a. trespasser upon defend
ants premises, and defendant owed him
| no duty to discover his presence thereon
before moving the cars which ran upon
| and killed him. The general rule that
railroad company is under no legal obli-
CATION to keep a lookout for trespassers
upon its premises, adults or children, ex7
cept to avoid injury to them after dis
covering their presence, applies.
Fourth-A fence constructed in ae-
cordance with the provision Of G. S.
1894, sec. 2055, is a sufficient compliance
with the statutes requiring a railroad
company to fence its right of way, even
tho the road so fenced extends parallel
| to and within 100 feet of public high
way. 49,
F1ft1l-G. s. 1894, sec. 269S, requiring
| every railroad company to fence its line
| Of road, when operated along and w1thln
| 100 feet OF q public highway, with a
| suitable and substantial post-and-board
| or stone fence, was repealed by impllca-
ton by the statutory enactments referred
to In the opinion. ~.
| sixth-The failure Of railroad COM
| pany to fence its road, as required by
statute, is prina facie but not conclusive
evidence of negligence. When not FENCED
the question whether a properly con-
structed fence would have prevented 9
child of tender years from going upon the
right Of way, is a question of fact. e..
Order affirmed. Brown, ).
| Bryan O'Rourke, appellant, VS.. The
German Insurance company Of Freeport
ILL.,. respondent. -
| F1rst-If a. referee nominated by thu
insurer to adjust a fire loss arbltrarllS
and unfairly refuses to cooperate will
his associate in selecting a third referet
/ and refuses to further act as a referee
| such conduct will constitute a waiver. by
the insurer of its rights to have the los
adjusted by referees, If it authorizes o.
approves directly or Indirectly the actor
| Of it's referee. %. II
second-f the insurer does not SO au
thorize or approve the action Of its ref
cree, but upon being advised thereof,
refuses to agree to the selection Of othe
referees it thereby valves it's right to al
appraisal of the loss.
/ Third-Evidence considered and held t,
sustain the verdict to the effect that tn
| defendant waived It's right to Appraisal
Of the loss here in question.
II Order reversed. Start, G. J.
Maggie J. Helms, as executrix ct al
| respondents, VS.. board of county com
missioners Of Renville county, ct al, de
PENDANTS; board Of county commissioner
\ of Renville county, appellant
In this, an action to determine ad
verse claims to real estate, it is he'll
following Phillips VS. Mo, and former de
cisions Of this court, that the defendan
was not entitled to q second trial OF tn
action by virtue Of G. s., 1894, SEE
5S45.
II Order affirmed. Start c. j.
II Warren Brothers Company, respondent
VS.. George R. King, appellant.
IL The rule that a pleading when assaile
on general demurrer is entitled to lib
eral construction, applied, and the com
plant in an action for damages for
breach of contract, held to state