Omaha daily bee., 1911-11-08

1897. Gwin against Freese. Appeal from
Antelope. Affirmed. Barnes, J.
]. In an action to foreclose a lien for
taxes, when the action is against the
land Itself, and the petition duly verified
contains the alteration that the owner OF
the land Is unknown. the court will not
be without jurisdiction for want OF such
publication.
decree Of foreclosure after II has been
examined and confirmed by the coupt
which rendered the decree Is not subject
70 collateral attack for irregularity.
1882; Walker against Anderson. Appeal,
from Dundy. Reversed and remanded with
directions to district court to enter decree
granting perpetual injunction az prayed
N p5isalntlf petition. Fawcett. j. Root,
l. in a suit to enjon proceedings insti-
luted by one land owner to construct a
Hiteh TOT irrigation purposes across the
anus or an adjoining owner, which are
already traversed by another ditch the
luesuon Is not whether the first ditch
rs then In a sufficient state of repair or
IN 2 condition to answer the purpose for
Which the second ditch is desired or in
tendedi the question Is can the first ditch
De made to answer such purpose? IL so,
ditch. '-'' w 'he Seeoru
2, Nor, In such a case can any such
right be given by the State Board Of
manner than that pointed out in section
art J. ch. eSa. Comp, ST. 1909, viz; by
the written consent and agreement Of
the owner of the land.
3. Where "a Institutes proceedings to
condemn the lands of 'B" Nor the pur-
pose ~ GSonstruetiing an IRRIGATION ditch
Ever Eve. lanos OF which are already
extended to the line Of "A's" land, in
junction Is the proper remedy for "B,"
and in such suit the burden is upon
A to show that the first ditch cannot
be made to answer the purpose for which
the second ditch is desired or intended.
1856; Tacoma Mil company against
peal from Buffalo. Affirmed, Root, j..
Fawcett, j., not sitting
1. In an action to recover a money
Judgment the pleadings should be liber-
ally construed in the interest of Justice.
z. A petition to recover for the buyer
preach OF an executory contract of sale
VII not be held bad on general demurrer
because the pleader did not use the words
damage" or damaged"
3. Where buyer wrongfully neglects
or refuses to accept and pay for goods
uhder an executory contract for sale
tne seller may maintain an action against
him for damages, and the measure of
damages is the loss directly and natur-
ally resulting In the ordinary course of
events from the breach of the contract
Ordinarily It is the difference between
the contract price and the market price
AZ the time and place where the goods
ought to have been accepted" Trini-
dad Asphalt Manufacturing company
against Buckstall Bros. Manufacturing
company, Sc Neb., 623.
1870. sneller against Hall. Appeal
from York. Reversed. Lection, j. Sedg-
wick j.. not sitting.
l. The measure of damages for
preach OF covenant In a lease to put
n possession is the difference between
the rental value of the premises and the
rent reserved in the lease. The lessee
may also recover such special damages
as he pleads and proves to have neces-
sarily resulted from the breach OF the
q Arleased certain premises to b. who
took possession. Afterwards he leased
the same premises to c for the same
term. c attempted to take possession,
but failed. b brought an action for dam
ages against c, based upon C's acts in
attempting to take possession, the ma
ture Of which is not disclosed, and re-
covered judgment. A was notified by
G Of the, tendency of this suit and re-
quested to- assist. Held that the judg-
ment in the attorneys fees, costs and
loss OF time OF In defending that action
are not proper elements of damage in an
Action against A on the covenants in the
lease to put in possession and for quiet
enjoyment,
1875. County of Cunning against Ban
croft drainage district. Appeal from
Cunning. Affirmed. Reese, c. J.
4: Under the provisions of the act of
1901 Qaws 1907. chapter 1881 implied au-
thorfty Is given to apportion to the high
ways within drainage district their
due proportion of the cost OF drainage.
appottioned to whole road by It's record
nllmber instead, OF to that portion only
or the ROAD TO be benefited would not
render the apportionment void so long
he the apportionment is limited to actual
benefits '-f--- ~
tCsS Pendergast against Royal High
landers. Appeal from Clay Reversed
and yremanded, Rose, j.
Where member of a fraternal bene-
ficiary association forfets his rights to
participate in the benefit funds of the
Ill
oupation, assurer does not assume the
hazards thereof by accepting dues upon
the condition that the insurance, II
restored, shall extend only to the risks
1889. Kane against Chicago, Burlington
4 Quincy Railroad company. Appeal,
from Douglas Affirmed; Root, j.
Barnes and Fawcett, ]. J. dissent.
I. A railway night swltchman becoming
color blind during his employment, Is
thereby disabled by sickness within the
II VIII pay him sick benefits for a
limited period while he is disabled by
sickness or accidental injury provided the
tact be established by proof OF acute or
2. A statement in letter written and
sent TO the plaintiff by the defendants
s s. ,s.,st Of employment that the
service, IS not of itself competent evil
dence against tho plaintiff of such
resignation.
8, Nor is the traInmaster's statement
that had the medical examiner found the
plaintiff to have been afflicted with color
blindness, the physician would have re-
ported that fact 10 the witness, competent
evidence to dlsproVe the plaintiffs con-
tention that he is color blind.
l6isv, Blake against West Appeal
Douglas. Affirmed. Barnes, j.. Sedgwick,
j., not sitting.
'l.-.Where tine possession OF real estate
IS the result OF an entry upon the prem
Uses by permission of the legal owner
such possession VIII not become adverse
until some act is committed by the oc-
pupant rendering II 80, and notice thereof
Is Drought home to the owner OF the
legal title, 4.t.t. ...,
=. One who enters into the occupancy
OF rehl estate, under an oral contract to-
purchase II, cannot afterwards obtain
titie theret0 by adverse possession without
showing that his occupancy had assumed
an adverse character, and continued as
such during the statutory period.
l6B6o. Clarence against State. Error
Cass. Sentence reduced TO two years ana
as thus modified affirmed at costs OF
plaintiff In error. Reese, c. J..
l. "A motion for a change of venue in
a criminal prosecution rs addressed to the
sound discretion Of the trial court. and,
unless there has been an abuse thereof,
Its ruling on the motion cannot be dis
turbed.h Sweet against state, IS Neb.,
268, los ~ w. 81.
2. Tho erroneous admission of evidence
offered by the state In a criminal prose-
cqtiop which. can have no preiudicial
effect upon the rights OF the defendant
Will not as general rule require the
reversal OF a Judgment of conviction.
g. y. Tho, Information charged the COM