Omaha daily bee., 1909-10-30

other than those acquired In said proceed
inFs.
4 In a contest between upper riparian
owners and the proprietor OF a mill site
over the latter's right 70 reconstruct a dam
that has been washed away. the question
OF whether or not there has been a nom
user OF a privilege acquired by condemna-
tion proceedings FOR such a length OF time
as to amount to an Abandonment OF the
right OF flowage Is one Of fact TO be de-
termined IN each particular case upon the
evidence before the court.
8 In such an action the district court
was Justified In finding that the Owner or
the mill site had abandoned his right to
flow the lands Of the upper riparian owners
for the purpose OF maintaining a public
grist mill, where II appeared from the evil
dence that the principal mill had been dis
mantled, and with its machinery, removed
from the mill site ten years next preceding
the institution Of the suit; that for eight
OF those years an occasional grist Of a few
bushels OF buckwheat, rye, corn or oats
had been ground in an ancient building on
the premises; that the public was not served
by the operation yut said mtl, which Tor
months at a time was not used az all; that
the owner OF the mill site maintained the
mill pond principally to procure Ice there
from, and that two years before the COM
menccment OF the suit the dam was washed
and no steps whatever had been taken
during that time to reconstruct H.
& II was error, however, Tor the court to
absolutely enjoin the owner OF the mill site
from constructing said dam, but the injunc-
ton should continue only until by ad quad
uhIAlluAh. DInEtEulNkE AH0 NnN ~ NANAlN bA
damages assessed therein he had estab-
lished his right t. construct and maintain
the dam.
1874. Vrana against vrans. Appeal from
Saunders county. Appeal dismissed. Dean,
~ Reese c. j., not sitting.
l. An appeal will be dismissed where the
record does not disclose the rendition of a
final order OF judgment.
q A judgment awarding partition and APP
portionment of shares OF the respective
parties is not a final order or Judgment
from which an appeal my be prosecuted.
3. Where an appeal Is partition is prose-
cuted to this court before the trial court
has acted on the report Of the referee, such
appeal will be dismissed.
1881. Johnson against Peterson. Appeal,
Valley. Affirmed. Root, u Reese, C. j.,
not sitting.
l. Private property in Nebraska cannot
be taken or damaged for public use with
out Just compensation therefor, and this
rule appeals to public authorities exercising
the right of eminent domain in establishing
and opening public highways.
q II a road oveFseer attempts 10 enter
upon the real estate OF an individual To
prepare a highway thereon for the use OF
the public, ane the owners damages Tor
the appropriation Of said land for that pur-
pose have not been heretofore ascertained,
and payment made or provided therefor,
the land owner is entitled to an Injunction
restraining the overseer until such damages
have been ascertained and paid or payment
provided for In accordance with law.
1852. Bassett against +. g. NJ. ms. Co.
Appeal, Otoe. Reversed and remanded,
Root, j.: Reese, c. j., not sitting.
1. "a contract OF insurance Is a contract
Of indemnity and any person attempting to
enforce a claim under such a contract
must show an interest in the subject matter
Of the contract" Stanislcs against Hart
ford Fire ms. Co, Of Hartford, -,Neb,@
z. In 1905. a husband by virtue Of the
marital relation only, had no insurahle in
terest in his wife's real estate.
1876. Westlake against Murphy. Appeal,
Lancaster. Reversed and remanded.
Barnes, j.: Reese c. j., and FRwcett j.
/. Workmen engaged in the ordinary o.
cupation of unloading a railroad car under
the direction Of q common overseer, are
fellow servants within the rule announced
In G. B. q O.. r. r. Co. against Kellogg,
"a Neb., 127; and the master is not liable
for any injury to one engaged In such 1oo-
cupation caused by the negligence of a
competent fellow servant.
2. A servant assumes ordinary risks and
dangers of the employment upon which
ne enters, so far as they are known to him,
and so far as they would have been known
to one OF his age. experience and capacity
by the use of ordinary care; and he Is
bound to take notice Of the ordinary opera
ton of the familiar laws OF gravltation
and assume the risks necessarily incident
thereto.
s, An air pump while being unIoaded from
a railroad car, and which Is to he set up
for use In a plant to be erected for the
purpose of preparing material for street
paving, is not an appliance within the
/ HltGillIh QI kH6 Ute NUlA tNhIGD NAp
master to exercise reasonable care in fur
nishing his servants with reasonably safe
appliances with which to carry on the mas
ter'S business. A
1873. Jones against state. Error from
Wayne. Affirmed. Lection, ],
l. Questions of fact are for the jury. and
a verdict or finding by them on a question
Of fact, where the testimony is conflict
ing, will not be reviewed.
1915. Sennett against Melville. Appeal
from Custer. Affirmed. Root, j.
l. A written offer to sell real estate
does not become a binding contract until
the vendee accepts the tender according
to its terms; nor will an offer to purchase
real property bind the owner Of the land
involved, unless he Internationally accepts
the bid.
force a specific performance OF Q con-
tract. Such applications are addressed
to the sound legal discretion of the court
and II will be governed to a great extent
by the facts and merits Of each" Morgan
against Hardy. Is Neb. 427.
1921, Pennington County Bank against
versed and reminded Fawcett, j,
/. A judgment In replevin determines
the right Of possession at the time OF the
commencement of the action, and 1t Is not
Inconsistent with the right of the party
defeated to afterwards assert a right or
possession under changed conditions
2. In an action OF repleving where Judg-
ment is rendered in favor of the defend
ant solely upon the ground that PLAINTIFFS
petition does not state a cause OF action.
k@@AA 1&kHE ~ -. HAAN
quent proceeding by the plaintiff therein
to establish his right Of property or right
Of possession, or to establish any lien ne
may have upon the property In controversy.
1927. Rieger against Schaible. Appeal
from Richardson. Affirmed. Fawcett, j.
/. THE determination Of questions pre-
sented 70 the supreme court In an appellate
proceeding becomes the law OF the case,
and ordinarily will not be re-eXamined when
the cause is again brought up for review"
LeaVitt against Bell, SO Neb. b95.
/ 2. n new trial viii not be granted a hu-
ant on the ground of newly discovered evil
denee when II appears that such evidence
was not produced at the trial OF the case
because the litigant had forgotten its exist
ence." Upton against Levy, 80 Neb. S3l.
3. ITO entitle a party TO a new trial on
account OF newly discovered evidence, IL Is
not enough that tine evidence is material
and not cumulative. 1t must further APP
pear that the applicant for the new trial
could not, by the exercise OF reasonable
diligence, nave discovered and produced
such evidence at the trial" Smith against
Hitchcock, Ss Neb. los.
4, "WheTe the evidence Is conflicting, and
the Judgment Is supported by competent
evidence, 1t will not be disturbed, even
though a different conclusion might haYo
been reached" Burwell against Lashmett
90 Neb. COS,
1887. Humphrey against Hays. Appeal
from Antelope. Affirmed. Barnes, j.
/. A decree foreclosing a TAX lien based
upon service by publication where the
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