Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1907-04-21
SUPREME COURT SYLLABl

1855. Chicago, burlington & quincy RAN
road company against Sevcek. Error from
! Howard. on reheaTing. former judgment
Of this court vacated and set asldei judg-
ment of the district court reversed. Letton,
j. Sedgwick, c. j., and Barnes, j., concur
/. The intent Of the statute requiring
railroad company to erect and maintain
fences and cattle guards along its line of
road is to compel the complete enclosure
OF, the track, except in cities towns anu
same at all points except public crossings
and necessary station grounds.
para graphs of the syllabus in former opin-
! ion, lOl n. W., ISL, adhered to.
8, Fourth paragraph Of syllabus TO
! former opinion set aside.
1891 stehr against Mason City & Fort
Dodge Railroad Company. Appeal from
| Douglas Affirmed, Letton, J.
J. Under the constitutional provision
| that the property of no person shall be
taken or damaged for public use without
| has been a disturbance Of right which
| the owner Of real estate possesses in con-
nection with his estate and when gives
| to it an additional value, by reason OF which
disturbance he sustains special damages In
/ respect to such property in excess OF mat
sustained by the public at large he Is en-
| titled to recover damages
2 In such case the damages recoverable
properly include all damages arising from
the exercise of eminent domain which
causes a dininution in the value of the
property.
3, Where an ordnance Is passed grant
ing the use Of public streets to a railroad,
company for the construction and opera
ton of its road, an abutting property owner
cannot be prevented from recovering from
the railroad company damages TO his prop
erty caused by the construction of the
railroad in and across the streets by In
serting in such ordinance a provision va
eating the portions Of the streets TO be
30 used ny the railroad company:
1876. Creighton against Mcdonald. Error
from Douglas On rehearing, former Judg-
ment Of this court vacated and judgment
Of district court affirmed. Barnes, J.
/. The estate of a decedent Is not ordi-
narily liable to an attorney for services
rendered by him for and at the request of
a legatee under decedents Will in contest
thereof. Atkinson against Mays estate, 50
? Former opinion. Neb. 1O7 N. W. s79.
1922. Younlxin against ROCKFORD. Error
from Douglas On rehearing, former opin-
ion adhered to. Barnes J.
l. master is not responsible Tor the
tortuous or wrongful acts Of his servant
when such acts are not directly authorized
by him nor done in the course OF .Wlthlh
the scope Of the servants employment.
2 Former opinion, Neb. lO7 N. W. &S,
1889 Hoye against Diehs. Appeal from
Dodge. Affirmed. Epporson' e., Division
~ 4 commissioner appointed to examine
into the eNpediency Of proposed road
should upon recommending establishment
cause il to be surveyed and plainly marked
II the precise location cannot otherwise be
b An irreguIarity in the report Of a road
commissioner, such as an indefinite de-
scription, Is waived by the filing of claim
for damages on account of the establish
a An Injunction cannot be maintained to
prevent the establishment of highway by
one who has filed claim for damages on
account of the establishment thereof.
1870 Vermillion against State eX rel,
Englehardt. Error from Merrick. Reversed
and Eemanded. puhie. c., Division No; z
l, School boards are, by section llO9,
Cobbey's statutes, authorized TO suspend or
expel a pupil from the public schools OF
this state for gross misdemeanorB or per-
sstent disobedience and this without no
any formal trial.
procedure in obtaining information or eVt-
dence Of the conduct OF the pupil which II
against its members TO procure the rein
statement OF the pupil his misconduct can
only be shown by witnesses cognlzant OF
8. If the relator in an action for writ
OF mandamus refuses 70 produce evidences
ia support OF the allegations Of his petition
on the case being called for trial. the case
on motion OF the respondent should be dis
missed, but the respondent 9y assuming
port OF his defense valves the error and
the case must then be determined on the
evidence. u. p. Ry. Co. against Mertes, 80
' iii54 stuIl VS.. Reddeo. Error from Har-
Ian. Affirmed. Dufie, C.. Division No.
l. one who collects rents as the agent Of
another is acting In a hduciary capacity
and holds the amount so collected In trust
for his principal, OF, IN, without authority
so 10 do he collects rents due his employer
and converts the same, he becomes indebted
TO his employer 10 the amount OF the rents
collected and the debt 50 created Is fraud
ulently contracted In either event dis
charge IN bankruptcy does not release HIM
from the debt 50 contracted
2. The plaintiffs took out an execution
on judgment in their favor against one
BeddeO and the sheriff levied on property
OF BeddeO sufficient TO satisfy the same.
Beddeo thereupOn obtained an Injunction =.
against the enforcement Of the Judgment
and one Means became his surety on the
Injunction bond. Within four months from
the levy Of the execution Beddeo was on
proceedings duly instituted in the district
court Of the United States, by hts creditors
declared a bankrupt and subsequently duly
discharged. The trustee appointed IN the
bankruptcy proceedings took possession %
the property levied on by the sheriff and
administered the same as part on the
bankrupt estate. The Injunction action in
sututed by HeddeO was dismlssed ana the
Injunction dissolved An action was
brought on the injunction bond In which II
was sought 10 recover the fun amount OF
the judgment enioined by Beddeo and other
damages alleged IN consequence OF the
wrongful issue Of the Injunction. Held,
that as the sale under Stul Brothers eH-
ccution would have taken place prior 10
the institution Of bankruptcy proceedings
against Beddeo, the injunction issued
against the sale the direct cause OF
Stull Brothers inability 10 collect their
judgment and the amount OF that Judgment
q proper element OF DAMAGES N 4 suit on
the Injunction bond