Omaha daily bee., 1909-08-28
SUPREME COURT SYLLABl

heAli ftthhin- REVERSED ana reulahued
Wlth direction. Letton, ].
l. Ordinary the measure Of damages for
the destruction OF growtng crops Is their
value at the time and place OF destruction,
but in case Of a permanent OF perennial
crop such As alfalfa, the messureSof DAM
Of the land before and after the DESTRUCTION
1ssSI 7Sts against Rakow. Appeal,
Ehsyenne Affirmed. Rarhes J. Reese
L Ordinarily the question as TO whether
a petition contains ayerments sufficient to
state a cause OF action, will not be con-
sidered on a CHALLENGES to the Jurisdiction
p But where an action Is brought against
q defendant I'm q county other han that
which is served upon him, e. arrested 70
and Is served by the sheriff OF the county
q his residence a challenge to the juris-
diotion requires the court to examine the
petition in order 70 ascertain whether me
action Is one which can only be maintained
10 tne eonP'y from which the summons
3 II, upon such examination. II appears
that the petition is insufficient to state
such q cause Of action, the court is with
out jurisdiction and the objection should
1850. Rscine-satuey company against
Hansen. Appeal. Cedar. Affirmed, Faw-
"a condition In the contract Of sale
whereby the tile Is to remain in the ven
dor until the full amount Of the contract
and judgment creditors Of the vendee in
actual possession, unless reduced to writ
ing, signed by tahe vsndee, aud a copy
thereof filed with the cOunty clerk or
register Of deeds of the proper county
Johns a Sandy against Reed, n Neb. 492. ,
opinion, held sufficient to sustain the YER
diet Of the Jury and judEment Of the court.
l9eSs Clague agains Trt.State Land Com
Affirmed Root, j. {
l. A statement in an answer tina n a
contract was executed by q corporation Il
. void because ultra wires, Ia an adm ssion
that the contract was made notwithstand-
Ing a general denial In another paragraph
q A contract for the use Of wa4er made
Tor a valuable consideration with a COR
porauon organized for the purpose OF sup
not when made oontravene the laws OF
parties or their successors in interest be
enforced, subject 70 all reasonable regula-
water users are not thereby unlawfuliy
curtailed.
3 t. %sOrRoEstion snEeged 2 the bust.
for the irrigation Of arid or semi-arid lands
p%nlswfuly and arbitrarily prevents the
G GstaS' Water Ss sP' for o. he T ifTisat fon'T q q f fSIa
o. gEoyins Potatiss. 1t is liable to the i'm
T. In such 4 case the measure Of dam
sses y me value to plainuff OF the usS Of
tSeITeof and 1rIt1is r. nInate p pr6s me Is deprived
cry rs the value Of the crop at the time
| hHN TeNAN W ahhh 0NA " eaiN NNhhil Will
the right to irrlgate II from that time on
70 the end Of the season, less the value OF
from that time until the end Of the sea-
less IL 6s SSSr 10 Ei pisin aP2shS on iQ2sSt e stSo
defSSHdant'' Specially e s Z T X hd RreI TeSSestS sG
6. In proving damages in such a case
considerable latitude should be given in
ment viii not be- TeveFsed Because ut tSe
court refused to strike out an answer not
entirely responsive TO an interrogatory, and
70 that extent not competent, where there
Is an abundance Of other competent evil
aence In the record to support the verdict
tenlion upon the en-, Ire record is the amount
OF the recovery.
Douglas, Affirmed. Reese, G. ].
y A and b caused a three-story and
attc building to be constructed. Above
the building was devoted was for college
amo i0oge room purposes, The STRUCTURE
was planned with that intention. TheV
leased the third floor for use of an or
sanitation composed of men and women
which lheld it's lodge sessions once each
purpose OF a gymnasium. They Afterwards
sold and transferred the property to the
c. b, company, a corporation, of which
they, together with one S. owned the
capital stock, and the three were made the
directors and managers. At asubsequent
portion Of the piastering fell, striking one
of the lady members and inflicting an in
Jury from which she died. In a suit by
J damages caused by the injury and her
death, held, that in the construction of the
nullG1lns A, ana d. were NOT the agents OF
improperly constructed and constituted a
menace to the life and limb of those right
! fully occupying It, the c. b. company hav-
ing approved the lease and continued the
use Of the building, was chargeable with
knowledge OF It's dangerous condition and
u W. I'D ha Hahla far thA AaRaan go nnottlftpn
from the injury, there being no contributory
negligence shown on the part Of the de-
/: 2, At the trial the principal Issue was as
: to the averments of the unsafe and faulty
J construction Of the building and its con-
q was inflicted On this subject the evidence
was conflicting, the plaintiff contending
a that by the use Of the fourth or attic floor
as a gymnasium the building was caused
? to vibratS and shake. the neoF and ceiling
, to spring up and down and that thereby
4 piled to the celing and wall, the plaster
! was caused TO fall while the defense was
! that the building was properly planned;
Held, that these questions Of fact were for
. g. instructions submitting the case to
2 the jury on the principles Of law above
? outlined held properly given,
? Bros. q Kelly Company. Appeal from Ian
q easter. Affirmed. Barnes, j. Rose, j.,
= not blllllbs
n l. Where the written contract for the
sale OF q horse, entered into without fraud
= misrepresentation or deceit of any Kind,
I contains all OF the agreement between the
= parties thereto, including the remedy Of
u the vendee in case the horse should fall
to reach a certain standard as a foal get
n ter, the court should not by Implication
n extend to him another remedy or make
, for the parties another and different con-
q q Where the only remedy provided by
the contract In case OF failure Is the right
n 70 return the horse and receive another In
n his place Of equal value, the death OF the
n horse, Without fault on the part Of the
n vendor, before there Is any offer to re-
turn him or demand that he be replaced
BY another Of equal value does not entitle
= the Vendee to maintain An action on the
n contract for dam4ges for an implied breach
: OF warranty.
n 1866. Hotchkiss against Keck. Appeal
u from Saunders. Affirmed. Dean, ].
l. Under the facts stated and dtseVased
q In the opinion Injunction will not lis 30
test the rlght OF rival claimants to the
n possession Of a public elective office.
2 The extraordinary writ OF Injunction
n Is one OF the last resorts Of the litigant
and It's aid should not be invoked unless
n IL clearly appears there Is no adequate rem
edy at law.
n g. Where the aid OF an Injunction writ
Is sought to be invoked to prevent the COM
mission Of an Unlawful act, facts must be
' In1n0AaA wwkNak aNNFraa. H.-.1 -. - -.