Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1906-02-10
ancaster. Reversed and remanded. Let

Lancaster. Reversed and remanded. Let
ton, G; Division No: ].
of team Of horses by bailee, and
pleads the execution of bill of sale by
him to the bailee for such team upon the
agreement of the .bailee to. pay fixed and
definite amount therefor, he cannot after
wards. If unsuccessful in this action. in
horses never passed from him, and that
they Were killed by the negligence of the
bailee. He had the right to elect as to
whether he would treat the title to the
property as having passed and sue in
assumpsit upon the promise or he had
never passed, to sue for the wrong; he did
not have the right to do both.
2. The doctrine of election OF remedies
applies when a party who actually has at
hand two inconsistent remedies. with full
knowledge Of such fact, proceeds to enforce
one of these remedies Pekin Pillow Co.
against Wilson. 66 Neb., 100.
1920 Roe against Howard county. APP
peal from Howard. Affirmed. Dufie. c.
Division No. 2
l. In appeals in equity cases this court
will examine the evidence and arrive at an
opinion of the facts established uninfluenced
by the conclusion arrived at by the trial
court except insofar as presumption in
support of such conclusions is derived from
the opportunity which the trial judge has
of seeing and hearing the witnesses and
OF judging their candor, their knowledge
of the facts, their intelligence and bias or
partially, If any is exhibited.
.. Where water. be II surface water, the
result of rain or snow. or the water OF
springs, flows in a well defined course, be
it ditch or swale or draw in its primitive
condition. and seeks its discharge in n
neighborng stream, its flow cannot be ar
rested or interfeTed with by a land owner
to the injury OF the nelghboring proprietors,
and what private proprietor may not do
neither can the public authorities.
g. The court will not presume that the
commissioners appointed to assess damages
10 the owners Of land over which II runs,
considered IL necessary, in the proper con-
struction of the road, to divert the water
r-sn11 ms lot In hraKH a
conduct It in an artificial ditch along the
highway for a mile or more and there
discharge il In such manner that IL dam
aged the land of the plaintiff or that plain
tiff was allowed damage for such DISPOSE
ton of the water.
4. An easement by prescription can be
acquired only by an adverse user for ten
years, and the commencement of the time
required for the prescription TO ripen dates
from the time when the party was dam
aged or had cause of action arising from
the adverse user.
1906 Ames against Ames. Error from
Washington. Affirmed. Albert, {. Divi-
/. Where a petition filed in the district
court states facts sufficient 10 entitle plain,
tiff TO both legal and equitable relief, and
prays relief a part of which only can be
had at law. but all of which can be had I'm
equity, the peader will be held to have
intended thereby 10 invoke the chancery
and not the common law powers OF the
court.
2. After filing a petition of that character
but TO do so he should manifest his elec,
tion by some uneQuivocal act which COM
mits him 10 theory that he has abandoned
his claim TO equitable relief.
g. A mere demand for a jury TO try the
issues of fact is not such an act as would
warrant the court in assuming that the
plaintiff has abandoned his claim TO epuit-
able relief, because where the relief sought
is equitable, a court I'm It's discretion may
submit the issues of fact to Jury
a. In a suit by one of the representa-
tivcs OF a deceased person to set aside a
conveyance made by the deceased On the
ground that he was mentally incompetent
TO execute such conveyance an ansWer
dled by the deceased in a suit pending in
mis- lifetime in which he aveTred that at
the time of executing the contract then
I'm suit he suffering from mental and
physical prostration and non compos
mentis, is inadmissibe in evidence On the
question of the mental capacity OF the
gIantor.
s. on the trial of the cause nolexpert
witness was asked 10 state whether the
grantor was able to converse intelliRently
on any particular subject Tor any length
of time. Held. that the witness having
given the conversations and described the
conduct OF thel grantor. II was for the
court 70 draw differences therefrom as TO
his inability 10 converse intelligently.
G. The fact that the attending physi-
clan prescribed certain drugs for a pa