Omaha daily bee., 1908-12-27
customer to ship such excess to other
parties named by said agent.

customer to ship such excess to other
parties named by said agent.
4. Although an instruction given to the
jury may be somewhat broader than the
pleadings, it is not error to give it, If it
be in harmony with the theory upon which
both parties have tried the case.
8. Evidence examined and set out in the
opinion. Held. sufficient to sustain the
verdict Of the jury.
1923. Chicago, Rock Island * Pacific
Railroad company against Welch. Appeal
from Lancaster. Affirmed. Root, j.
l. In 1890 plaintiff purchased a tract OF
land 100 feet in width on the north side
and 200, feet on the south side Of the center
line of its proposed railway, but did not
record It's deed until January, 1904. II con-
Shortly subsequent to the making OF said
deed the g%rantors therein laid out a town
site and plated the land south of the
tract thus sold to plaintiff, SO as to over
lap plaintiffs land 100 feet. This plat was
duly recorded in 1891. Plaintiff has oper-
eted a line of railroad since 1890 over said
tract of real estate. The land in dispute
was sold to defendant In 1891 and Is located
more than 100 but less than 200 feet from
the center line of plaintiffs railroad. De-
PENDANT thereafter Immediately constructed
buildings upon the parcel of land purchased
by i'm and has had actual and continuous
possession thereof ever since. Defendant
recorded his deed In 1891. At no time pre-
ceding the service of notice on defendant
to quit said land did plaintiff perform any
visible act other than to operate it's rail-
way, TO indicate that 1t claimed any land
south OF a line 100 feet south OF its railway.
CIV Tia OAAdNA AA1 hAAA6 NV y
PENDENT was protected In his title to sad
real estate.
2. In essctment II defendant denies plainF
t:ffs title he may prove any defense thNt
will cefeat the action.
1855. Dunkin against Blust. Appeal from
Buffalo. Judgment Of district court modr-
fled and affirmed. Calkins. c. Division
No. 2
1. The power OF a village to build a Jail
J is necessarily and fairly implied. and Incl
dent to the power expressly granted the
village to enforce its ordinances by fine
and Imprisonment.
2. A village jail properly constructed and
suitably situated Is not per SO a nuisance.
8. The making and publication of the
estimate OF expenses required by section
81. chapter IL, article 1, compiled statutes,
should precede the appropriation of money
for village purposes, and the village board
Will be restrained from proceeding with an
expenditure without such estimate upon
the timely application of a taxpayer.
1887. Ververka against Fullmers. APP
peal from Jefferson. Affirmed. Duffie, @.
Division No. l.
1. Courts are not organized to determine
mere distractions and will ordinarily re-
fuse on their own motion to proceed in a
case which Involves only a right which has
I ceased to exist. In the instant case In view
OF the fact that this court has heretofore
entertained and determined appeals taken
by the parties I'm interest. from the tudg-
fusing for the sale Of Intoxicating liquor,
we have ignored the rule above referred
to and examined the record and briefs OF
the several parties and the evidence con-
tanned in the bill of exceptions and find
no legal questions presented not hereto
fore determined and the Judgment Of the
court fully supported by the evidence.
1894. Chicago. Rock Island & Pacific
Railway Company against Welch. Appeal
from Lancaster. Affirmed. Root, ].