The Saint Paul globe., January 03, 1901, Page 6, Image 7

About The Saint Paul globe. (St. Paul, Minn.) 1896-1905

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1118 UK II!
ji'UGK i.ocunK.v KIKES HIS DECIS
ION I.V A SI IT IXVO^VIXG
MILLIONS
BOTH SIDES HAVE RIGHTS
Trloßrniih Company Onus tlie Lines,
I'olpr, Kin.'. Subject to Orisr
liuil Agrcemrnl With
•he Railroad.
.In.lpe Lochren, of the [Tinted States
circuit court yesterday Bled his decision
In the long fought ease of the St. Paul,
.Minneapolis & Manitoba Railway com
pany (now the Great Northern) aga'nst
the Western Union Telegraph c< ospany
and the Northwestern Telegraph com
pany. The question i". the case involved
the ownership of the telegraph system
ulong- the complainant company's rail
way.
Judge Lochren delivered a lengthy oral
decision from ;he bench. The be-1 of
the derision is as follows:
United State-, Ci.ei.t Court District or
Minnesota—Third Division. J:i Equity.
The St. Paul, Minneapolis & Manitob.i
Railway Company vs. The Western
ITnton Telegraph Company ct al. 0.i,
--inal Bill.
The Western Union Telegraph Cotnpany
vh. The Bt. Pauli Minneapolis it Man
itoba Railway Company el al »
The Northwestern Telegiaph Company
vs. Th< St. Paul. Minneapolis ,v Man
luba Railway Company et ai., Cross
}U1).
jioclirenT .1. (O~;illy): Tiii; is an impor
tant ta.se, iuvi«>:r.-: a large auii/unt of
property and valuable interests. I should
be clad, if I bad the time.to take he case
under advisement, and examine the con
tracts carefully and the evident c. and
Ihe cases which have been .--lYvred to by
counsel, find those oil their bile's, which
tor want of limp have no! ben .■•! . i d
to if: the argument. i->ut, ihe p..-.sMir o.
business upon me is such tlial T CAnn t
in justice to other matters give to tae
.-a*.' the time I would be glad to give to
it 1 apprehend there is less necessity
for his . because on account of the large
Interests involved, my decision will doubt
less be reviewed by Judges who will have
;!).• tim< to give it more careful consid
eration.
i i us say, howeve , tbat,;the7ca.S3 has
j-.e^i! , i fully and fully argued by coun
sel, nbl« counsel on both fljc'3, and 1
am, perhaps, as well able to "determine it
now. as .1 shall In ii 1 p.ivo ti it tur.usr
time. "> ■"■■■
Tin Question ie as to which company it
j>t th present time the owner of. the
telegraph system and appliances; includ
ing thu telgiaph right-of-way along
.nilv.'.'y ol the complainant; company in
the state of Minnesota and westward to
the P:\ciJie ca&st. Ard -thi? ■ «l;pon;,.«
mainly upon the contracts whi:h liav*
been produced in evidence. There i- con
siderable testimony in the case, 1 judge,
from the piinted books, which hag not
been brought to my attention; very likely
because it ia deemed immaterial, or that
the facts which are proven by the evi
dence li.-ive. ceased to be matters of dl:
--]„ v between counsel.
The complainants rights relate back to
the rights derived from the land grant |
act of rongress of March -i, JS>7, andithe j
: .-, of the legislature of the state of Mm- j
nesota incorporat.ng tli3 Minnesota i>
Paeittc Railroad company which gave ii
a pan of that land grant. The name of
that railroad was subsequently changed
to the St. Paul .v Pacific Railroad com
i'Miny, and somewhere about in.< year
iSiii," the First division of the St. Paul &■.
Pacific company was formed and through
a mortgage made by one of the last two
named companies, and its foreclosure, the
tit!-: -.:. '.'..•.: j-ai'voiid .in m.v -oil its
franchises passed to the present com
plainant.
These charter provisions gave the rail
way company not only •'•■■ power r • I"']'}
Hn ,l r^rw-"*^ is I'u.inoua, UU>. ci...-j tO build
Hiid maintain a telegraph along the rail
way line. The telegraph had become well"
Known to be an appliance as necsssary
for the operation of a railroad and the
transaction of railroad business with
safety to passengers, and with safety as
regards the appliances and rolling stock
of the railroad itself, as any other con
struction connected with a railroad. 1
have no doubt that the authority to build
and operate a railroad would
authorize the railroad company
to construct a telegraph to
insure safety In its operation and do
any business which would be for the
convenience of the public by the use
of such telegraph; and it might, trans
mit commercial messages or private mes
sages, and would not be confined simply
to railroad business, even if there v,> re
no express authority given. The au
thority to construct and build a tele
graph line expressly given as in this in
stance would include, the authority to
use it for all purposes that were not un- '•
lawful, and especially ror all purposes
convenient to the public and to 'he trans-!
hcUoii of business generally. 1 have no
doubt either that under the authority
to build and maintain a telegraph; it
would have the right to contract with
another party or corporation authorized
• to construct telegraph lines, if it saw
Jit to do so; and as far as defendant's
duty to maintain such telegraph is
concerned, that could be performed by
and through another corporation au
thorized to build and operate the tele
graph.
Now, :i appears, by the testimony, that
on Sept. -i. 1863, and before any railroad
was built In the state, at any rate, any
railroad of the predecessor of this com
pany (and T think the: predecessor of this
complainant built the llrst'railroad that
■was built in tho state), a contract was
made between Smith & Simmons and the
.Sr. Paul & Pacific Railroad company,
by which Smith <s- Simmons agreed to
•huild a telegraph line from St.'Paul to
Watab, upon terms which are described
In thai contract. There is no need of
referring to all of its provisions; it
required the payment of a certain
mount per mile by the railroad com
pany, and there was an agreement v.ith
reference to the free trasportation of
An Excellent Combination.
The pleasant method ami beneficial
effects of the well known remedy,
BYiiur of Figs, manufactured by the
California Fig Syrup Co., illustrate
the value of obtaining 1 the liquid laxa
tive principles of plants known to be
" medicinally laxative and presenting
'] them in the form most refreshing to the
taste and acceptable to the system. It
is. the one perfect strengthening laxa
tive, cleansing the system effectually,
dispelling colds, headaches and fevers
gently .vet promptly and enabling one
to overcome habitual constipation per
manently. Its perfect freedom from
:■ every objectionable, quality and sub
stance, and its acting on trie kidneys,
liver and bowels, without weakening
• or irritating them, make it the ideal
:- laxative.
In the process of manufacturing figs
. arc- used, as they are pleasant to the
taste, bat the medicinal qualities of the
remedy are obtained from senna and
father aromatic plants, by a method
•known to the California Fig Stbttp
• Co. only.. In.order, to get its beneficial
(effects and to avoid imitations, please
U remember the nil name of the Company
-; printed on the front of every package.
i CALIFORNIA FIG SYRUP CO.
'.^•'"..:.: »AN FRANCISCO. OA£.
LOUISVILLE. XT. YOBK, N. T.
f■ • IVreaie by allDruirgists.—Pricesoc. per bottle.
material and the persons eonh acting *;? c
telegraph lines and the free v <<!v* ( 'c
telegraph by the railroad company 1 -.?
carry messages; and alto a grant of the
light of way to Bxs!*lj ?: Sirssion^ upon
the Jin* described; for i!j<: Uacs -..«! i<uj
pofes of the lino 01 telegraph; and in
the eleventh paragraph there S3 a furth
er provision that as the St. Paul &
Pacific Railroad company shn!l further
extend, construct and operate its raid
road, the said Smith & Simmons may ;.nd
shall continue the name lino <•* telegraph
along the extended lines of said read
ioc:: ■i., ••; '::::"". •■nd conditionsvas
tii* j ehibefc:; ;:.■* tiv»c<i.
• T( seems to me that this is a grant
of a perpetual easement or right to
establish, contract an.l continue i.) the
operation of a . line of telegraph along
the line specified In the contract, ana
along such further linos of railroad as
shall b3 constructed by the St. Paul &
Pacific! Railroad company, and thf»t ii
became a vested property right at the
time. ■■•■■".". ■■.-.
It is not perhaps necessary to refer
to tin: contract that was made between
Farley as receiver and the Northwestern
Telegraph company. It appears that
prior to the time of that contract. Smith
& Simmons, or at least Simmons, and
persons named therein as successors to
Smith, by a somewhat Informal writ-
Ing, assumed to transfer all the Interest
of Smith & Simmons In that contract
to the Northwestern Telegraph company.
The Northwestern company had a lino
of telegraph constructed between St.
Paul and watab or. between St. Paul and
St. Cloud, prior to the time of the com
mencement of the foreclosure of the rail
way company's mortgage in which fore
closure Farley was appointed receiver.
How much more was then constructed,
I do not know, but it extended ns far
as the railroad was then built. It was
stated by Judge Young in his argument
that the pleadings in the case admit
that all of this construction of telegraph
was done, up to July 1, JSB2, under the
contract called Contract "A." <>■; Oct.
In, 1879. But it appears that there was
this line of telegraph in operation mi
all extensions of the railroad prior to
the contract entered into by Mr. Farley
with the Northwestern Telegraph com
pany on April 16, 187 S. which contract
has been read in evidence, and was acted
uprii during- the administration of Mr.
Farley; during which time a consider
able portion of the line was built from
some point near Breckenridge to St. Vin
cent, in order to save the land grant,
tor reasons explained in the argument.
A line of telegraph was also constructed
by the Northwestern company at the
. a;iv. r time along this ncr,- extension of
the railway by iV; receiver, and operat
ed by the [Northwestern company under
I the Farley eonact
! It seems: to ire. that the light <>; way
! for the telegraph along this extension
i constructed by Farley was conveyed be
i i'tre to' ihe predecessors o£ the North
i festr-rn company in the Smith & Sim
i mons contract, for reasons which I will
i ofer to later. »
<( On Oct. 15, 1879, after the formation of
the Manitoba company, the present com
plainant, a contract was entered into be
tween that company and the North
western Telephone company, which then
operated and claimed to own the tele
graph lines ■as far as they were con
structed; which contract provided tli3
terms on which that operation should be
carried on. and hi respect to the further
expense of construction, and of the
maintenance of the lines;, and the con
tract itself.: assumed to grant the right
of way. It says "That said telegraph
company slv.ll have the right of way on
and along the line of the railroads of the
said railway company for the construc
tion and use of telegraph lines for com
mercial business or public uses and
business, and the railway company
covenants that it will not transport upon
its railroads any men or material for
competing lines, except at the usual
rates. Although that clause doe* not
employ the technical language thai is
ordinarily used in a deed of land or in
a grant of any easement of land, still
the language used, if fairly interpreted
conveys this easement. It does not fix
any future time when it shall go into
operation, and although the words used
| are in the future tense, still it seems to
me it would take effect Immediately in
the nearest instant of the future after
it was executed. But that language does
not appear to me to be more than • v
further assurance of the title that the
Northwestern ■ Telegraph company had
already obtained through the Smith &
Simmons contract. Without »•«* ■-:..-.- io
whether the. right, ois-—**" was conveyed
in a to--;, Wanner, in this contract or
manned lhl?; il w as conveyed In such ; ,
manner a s to show that the other party
tr! e I cof ract ' the Manitoba company,
St Pa UV U «? ed tO the rlghts of the
Ti V* l t & Pa'-i!i" company, recognised
the Northwestern Telegraph conmanyas
authorize,! to build, maintain an™ P Op^rate
t2 S rJ^ es ,of telegraph. The grant of
hi t££«f O/'^ for lines of telegraphy
by the St. Paul & Pacific Railroad com
pany to Smith & Simmon, by the sevemh
;md eleventh paragraphs of the contract
or sept, p, S(?' was a then present
and vested grant; covering not only the
line then particularly described but
equally the right of way along the rail
,vfnv lhereaf i- to be built by that com-
This grant was effective, although the
>O« atVT } n t], le f uture would be lived
A*iwK? ly by lhe locations of the railroad;
All this gram of right of way was prior
to the mortgage and not disturbed by the
foreclosure, to which neither Smith &
Simmong nor the Northwestern Tel*
graph company were parlies; and thesa
rights appear to have been recognized by
the court and the receiver during the
foreclosureV and by the Manitoba com!
pany Immediately afterwards and thence
forward And while there might have
been a right on the part of Smith & Sim
mons, or whoever represented then? to
question the informal transfer to the
Northwestern company, I think aftar
such a recognition by the Manitoba com
pany and expenditures by building- and
maintenance of the lines ofttelegraphyh hv
the Northwestern company, that as lone
as no one else questioned' the right of
the Northwestern Telegraph company to
build and operate these lines, the rall
rT|ht. S COmpa"y couM not <l«estlon its
of Oct. 15, 15,9, was \ his contract the
?L ■ 15 ' IS'^' was In operation, the
lease was made by the Northwestern
company to the other defendant here the
Nov,- that instrument on its face nur
ports to.be a lease; It does not purport
to be a sale of the property It has ail
the attributes of a lease. It has a ter
mination; it provides at the end of tha
term tor the. return of the property, hav
ing at the same time a provision that
the property shall be kept up, and hat
the contracts shall be carried out" the
contracts being transferred for the pur
pose of being carrieJ out; and also that
the improvements and replacements
shall remain during the term of the
lease, and the property returned in as
good condition at the end of the lease *h
at the time the devise took eeffectlt i«i
made upon a valuable consideration- in
\vl^\ n has° f? d am Ple consideration"
AVhen we consider the mortgage which
the lessee was required to. take care of
as far as interest upon the bonds veal
concerned, and the divicends to be paid
to the stoctoholdera during the term and
the linal payment of the* principal of th
mortgage debt, there was a lar|e amo u v
of continued periodical payments to be
made upon this lease; with the riei-t of
re-entry in case of default S
Now, whether the Northwestern Te- !
graph company:had the right to assign
Its contracts with the railroad cornS
OT not, the lease and the assignment
the contracts came to the knowledge ox
tno complainant here, the Manffoba
company and it dealt with the WeLtern
ii,p °v Lw elesril, ]i comPany as entitled to
o jhf v SS? bb und*und by the obligations
of the Northwestern company it r
quired the Western Union Telegraph
had with v the Northwestern Telegranh
Had A\ith the Northwestern Telegraph
r h UV)' tO g°,, On and bum the tele
giaph lines on the new railroad exten
sions, and it proceeded to deal with it
•,m" resV ls .the lesEee of that com!
pany, or at least as having authority
to manage the constructed ] m s and build
and manage, as far as new lines were
concerned, the lines of. telegraph along
this railway, as far as the railroad had
been built or was being extended. That
was the condition of things up to the
time when the contract of July l jgs"
was entered into; and one principal ques
tion in the case is>' what was the effect
of that contract? The claim on the part
of. the complainant Is that If was sub
stituted instead of the previous con
tracts, expressly substituted 'instead- of
the contract immediately preceding it of
Oct. 15, lb»7, and also in general terms,
instead of all the previous contracts
with the telegraph company or any of
its predecessors. ■ .-.-*, -
"What was the • effect of that con
tract, supposing, such to be its • pur
port, Is one serious Question now to be
determined.. ...
- If the' effect of the contract of July 1
li>S2, was to leave the defendant, the tele
graph company, without any property or
rights, at the expiration of the ten years
it would seem to be a hard contract. It
would leave the.Western Union company
Still saddled with its obligations -to the
Northwestern company to pay the accru
ing interest on the mortgage bonds, and
the bonds at maturity, and-the stipu
lated dividends of stockholders, and re
turn the leased: property to the lessor,
with all additions at the end of the term
THE ST. PAUL GLOBE, THURSDAY, JANUARY 3, 1001
of ninety-nine years, and compel the
Western. .. Union- company auring the
term Qf ten years to build at it-; own
"co»! telegraph lines along- all ex*«nsiOiia
of. tTie-^rHrondF, a largo ainou«it of
-..inch vab a'Ot."ally bul.t but a very
short time before too c-vi::.*•-- of t*:c
term, when, according [... ■/: cluliil of
the complainant, all the telegraph prop
erty. would i»asa immediately to the com
plainant by reason of the lapse of there
contracts, and of the rights of the tele
"frar-h ?ou^-?.r>y un^cr them at th? end of
the ten years. S^gi -\--':
But. supposing that on July 1, 1882, in
stead of entering into the contract of
that date, the parties had Simply by a
writing-, under seal of the two companies;
abrogated p.'! c6"trP^-ts JytTocn the Vv
tie;?. nn-1 enlefed"intc no nsw or fii;tl:er
coritfftct What would be the condition
In which that would leave each of thc:o
parties in respect to the right of proper
ty In these telegraph lines? Would they
Immediately pass to the railroad com
pany, or would the telegraph company
remain the owner of the "lines? The
lines were built by the telegraph com
pany, or by its lessors, and the rai'roai
company had perhaps some rights In re
spect to wires strung by it for its sepa
rate use under the contracts. The tele
graph lines were built upon the right of
way which was granted by *!ie railroad
company and its predecessors to t;.e
predecessors of the telegraph company.
That right of way is an interest in land.
Abrogating the contracts would not be a
reconveyance of the t tie. which had b?en
granted to the telegraph companies, it
seems to me that the only effect of such
abrogation would be to put an end to tbe
particular stipulations in relation to re
pairs and to the cost of construction of
new telegraph lines, and In relation to
the use of the telegraph as between the
companies. Th railroad would be no
longer obliged to carry free the_ mate)lll
or the men required for the building of
Hi*- telegraph lines; or to supply labor in
the repair of them, and the telegraph
company would be no longer obliged to
send messages free for the raiho?d com
pany. None of those executory provi
sions would remain obligatory after the
contract was abrogated. Bat the abroga
tion of the contract would not affc-t tne
provisions which had been execute! a"d
which had already vested property right.
in tho one party or the other go that my
impression it; that it would leave tMe
ownership ...f the right of way of the
telegraph lines in the telegraph com
panies It does not matter whether the
title would ba In the Northwestern com
pany or the Western TJn'on com
pany, as there. Is no contest re
twee!! those two companies. Besides tne
Western L'nion company could not by any
contract affect the property right of its
lessors, the Northwestern company.
It docs not seem to me. therefore that
I need consider the effect of the acts of
congress with lespect to the rights of the
railway and telegraph companies neither
the act of July 24, 1866, or any other of
the acts of congress referred to on the
argument The oase may be disposed of
fimply upon the contracts between the
parties themselves.
This -.contract of July 1, ISB2. While ii
purports to supersede all previous con
tracts, and cancel especially the contract
or Oct. IS, 18,79, does not seem to contain
any provision that can affect the rights
of property as they were vested at that
time and before that laatfcontract was
entered into. There is no conveyance
and there Is do provision that there shall
Ik- any t:hnnge of title or/possession at
the end of the ten yea!- term: There is' a
provision which grants the telegraph com
pany during the existence of that con-'
tract for those ten years, an exclusive
nght ol way on, along and upon or un
der lines and bridge,; of the railway, and
on any -extensions or branches thereof
during that ten year term; but that does
net-seem to be inconsistent with the fact
tr.nj n hud a right of. way before or that
its^essp-r had a. rigiit of way not exeli>
sive |>efore. 'J'his grant is something ad
a.'tional and not inconsistent with the oth
er; and as both would be of the
benefit to. tho grantee, it would be •-.re
sumed that It would retain both of them
i h( re Is nowhere in thai, contract any i-r •
vision that at the. end of ten years the
telegraph company shall abandon the lino
of tekgpaph, or its use, or turn bv&r tlie
pestession of it to the railway company
Now. looking at that contract caivfuliy
it seems to me that it only abrc?n»l
the cpeiT.t'ng and executory provisions < f
the previous contracts; and that must i>,
its oiily effev, unless it operates as a
-.. <.\;.,:,, v. „i property rights; and tlrat
" ires, not do. There are no words in
it from which any such intention ea.i 1. ■
in:err.jd, nor can it be from anything
t..:u appears outside of the contract
V.hen we consider tho situation of the
parties, and their interests, there ■-v
Pears to be nothing, either in the lanztKiira
of the contract or in the surrounding- eh-
cumstances from which that intention can
be infoned; and as I have suid before!
there is '^provision that at the end of
the term tho existing rlglhts of property
shall not continue. This particular con
tract authorises thnbuil3:ng of extension
and the ration of th'> same by the tele
graph company like the telegraph lines
before constructed, and as part of the c-er^
era] system of the telegraph company.
omu.erab.o changes are made in Us nro
visions from those contained in the pro
vloiis contracts as to many other matters;
This contract gives tho railroad company
the right to use he entire telegraph sys
tern of the Western Union " company, a
system \.-h;ch extends, according to" the
statement or counsel, throughout all 'he
states, or at my rate, far beyond the
imits or these telegraph lines that were
being built in connection with this rail
road. It relieves the railroad company
from paying hall of the cost or expenses
of building the extensions of tbe Hue* o f
telegraph that were to be- constructed
!~0, this contract for its term of ten
years, while it contains some conditions
that are more favorable to the tele
graph company than those contained in
the; previous contract, leads me to think
that the changes are far more consider
ably ni favor ,of the lailroad company
than oi the telegraph company, and that
it contains nothing that can 'be regard
ed as a consideration for the giving up
or the abandonment of this valuable
The facts that under the last contract
the telegraph lines were operated sub
stantially as before, while tho entire cost
or all how construction was to be borne
by the telegraph company, and that the
contract contains no language lroin which
the Intention now claimed by the com
plainant can be inferred, load me to the
conclusion that the telegraph companies
Mill own the telegraph property the same
as they did before the contract was
made; and l;a\v the same interests in
that ' property which they had fit any
prior time; and the railroad company
has the same interests therein which it
had before that contract was made, an d
no greater. -. . . -.
A decree may bo drawn to conform
with the conclusions indicated. This
seems to have bt-en an amicable fiction
commenced with the consent of ill the
parties and for the purpose of determin
ing the rights of the parties; and there
fore it is U.V. action in which no costs
should bo allowed, I think that perhaps
I have stated enough -to enable counsel
to draw the proper decree in the case.
Its terms if not r.gre-eu to may be se-tiled
upon two 6ajs' notice.
The Tvrentlotl! Century.
VTe now stand at the threshold of the
twentieth century, and the nineteenh is
a thing of the past. It will, however,
be known a« the century of invention
and discovery, and among some of th«
greatest of these, we can truthfully
mention Hostetter's Stomach Bitters the
celebrated remedy for all ailments aris
ing. from a weak or disordered stomach
such as dyspepsia, indigestion, fiatulencv'
constipation and biliousness
VENEZUELAN REVOLT.
iy»I'RGBKTS REPORTED ACTIVE J>
T"W"O DISTRICT*.
BANT JTTAN DE PORTO RICO, Jan.2.—
Passengers* who arrived there today on
the Red "D" line stumer Philadelphia
from LaGuayra, Dec. 30, sa-y a serious
revolution has broken out in the Mar
acaibc district of Venezuela. They add
that the government troops have de
feated the rebels and arrested twenty
of. the leaders. Another rising is reported
to have occurred in the vicinity of the
Oronico. The United States auxiliary
crusier Scorpion left here yesterday to
join the Hartford at La Guayra
WASHINGTON, Jan. Loom
is, at Caracas, has advised the state de
partment that the impending trouble
over the conflicting asphalt concessions
has been thwarted for the present.
There are no details in the minister's
dispatch, but tt is gathered that he has
induced the Venezuela authorities to sus
pend arbitrary action looking towards
the ejectment of some of the conces
sionaries untill there can be a calm ii-
dicial determination of the merits of the
conflicting claims?.
It is probable that the arrival or the
gunboat Scorpion at La Guayra ha»
btjen a potent influence in bringing about
this present stay of proceedings.
I MR IE IIS
-< PREME COURT MODIFIES THE
AMARU MADE TO MRS.
SI.VRY f/AMMFiSs
NUH2MANN WINS HIS SUIT
Suiireuie Court for n S«M'ninl Time
t Declare* Ills Claim a Valid
One \«ihisi GerninntH
Company.
Justice Colling, of the state, supreme
court, yesterday filed a sextet -of decis
ions, In two of which the decisions of
the trial eotots were reversed. One of
; these was in the action brought by Mary
hammers jie.tUhst the Great Northern for
damages for Injuries received in the collis
ion of a train with a rig in Which she was
riding at Baub Center. The supreme court
holds that tte award of 'damages; $1,000,
was excessive, and should b3 cut down
to $2,600. The syllabus follows:
Mary Lamuienj, respondent, vs. Great
Northern Railway Co.. appellant:
,-,,; in a personal injury case arising
cut of .-.: collision at a street crossing be
tween i ne cf defendant's passenger trains
and a pair of horses attached to" a wagon
in which plaintiff vas riding, her hiwba id
being the ..river and In control of Lite
noises, ii 13. hold that on the question of
the negligence of defendant's servant-, in
running the train at an excessive rate
of speed, a case was made for the jury
ana that the] court did not err in it's
charge upc-n .this point. ]t i:; also held
that the case was for the jury upon the
question of plaintiffs contributory ueir-
Ugencc. .... . .-. . • . . .
♦/;,>, fleld~" '"'at 1)le damages": awarded,
j4,otjo, arc excessive and must hi reduced
to $2,50-1. Order modified: . OoCHns, J.
The secondr,reversal was in a suit In
volving the liability of subscriber.* to a
creamery for the expenses of ocnsti tion
The syllabus is as follows:
Geniish & Company, appellant. vs. John
>■■ West, .1 01., .i,f, idants, John 77.
west, it al: .respondent?
l. A contract for the construction of i
creamery executed by plaintiff: an 'ntttfio
lirst part ami by all but two of the ...
-fen«aHt*ubsoilbers r as °'' the second part
.A,. 1' !(£?" of ,tht wibFCiibera limited
their liahfllty by lixing th« amount, of
their sweral «übsspttn.tlons ;:i all n.7ofto();
Eleven cid not fix. f..is amount The ' it o
lated contract price was $3,000.0!) "
t Held—Thai Sic liability of the olevon
ast ntePtioneJ is several, .not joint,
Sfw.oo '"' b? iincl io ■ pai' llM|-eIIJV ntil <"■
'-m 1 ?:Ctio, n to obtain a judgmont
f" d, to enforce .;' Hen "Yon tW property
that the eoSplaint -stated a caiise of ■-■
uon asrt:install of the defendants. 1' - r
Order >x-\Aa. : r Collins; J. ;
I'"<"' the s&^ii ,-time the court de'cTdia
m favor offl.^,ialiitiff i,, a'.juite celeb
rate.i loca^,cafe, that. of Louis Nutz
mann 5 ng:dii3u"U 0 Guruiania iLife Insur
anoe eomp a |j^t lt.r'an elevator a ■ i !onl
The «yi'abi.# :
Ijouia • Nutariaißn, respondcnl v= -Th-»
O*"P«nla M 3 Insurance Company of
New \.-VK, l.J.;f, f ;!j;nii. ' . j
; Syllabus- I Ax a second trial of th!*
action forjp^>nal • inj^irtea alleged «<>
have been , {^,s«, by ati in Ompetsnt fa]
low servant^ iti? mai'i facts as sljown by
the evidence'- faid= not differ mater ally i
from those -eShbli^ed at the Rrst trial
■'- 81 N W. R. 518. There was, however '
a quantity 0 iexpert testimony .- s to tb.'
amount of instraelion and <;xp-ri-no
s^cessary to render a man of ordinary
•;•■■"««;■■ ■ i ;.i.«Jiii.- i 1 to operate an eleva
tor. Held, that, upon all the evidence
"' question whether defendant exercised •
?. riV,V Try i"" d " reasonable rare when se-I
lecting theS.servant whose . nec-lisence :
y.nen operaungr an elevator caused th<»
injuries, was for the jury.
-2. It whs ailes-ed i n the complaint that '
the operator suddenly and violently start- I
•ir l ir '■•:; W!|;"' upward with great force
ana rapidity by reason of which platet.fl. 1
.. ; - -r>"; i.=^ . " V '-Xj, ■
Farmer? Do yen ho th 1 oldest in th' famllv*
Hoy-No; father's the oldest. lamuy?
was unable, to enter the same and then
carelessly and negligently stopped an"
suddenly lowered li a short distance. Tfc«
proof was that after being stopped it was
again move?! upward- lowcred--with
great rapidity. Held, that/ this varla,e"
between the allegation and th* proof a^
to the movement of the elevator after it
was Urst stopped was immaterial and
'court proj)erly • •^regarded by the trial
3. The claim is made by defendant's
counsel, upon appeal, that from the evi
dence it.conclusively 'appears that when
the accident happened the plaintiff and
the elevator man were not acting within
the scope of their employment, but were
using the elevator without autho itv and
for their own convenience simply, -i.l"
that the claim is without h«rit. :Judsr.i
ment affirmed. ' . — Collins, J.
..The St. Paul Bethel association wina
the suit brought against' it by Mark lii
schoff, who was -working and was scald
ed while. working on the fctjilers. The
court says: ...
Mark r.Jsehofi*. appellant, vs. St. Paul
Bethel Association, respondent .
'SyllalniE— in a personal injury ac
lion that on plaintiffs own testimony he
was conclusively shewn to be guilty of
contributory negligence, v.liiyn. conced
ing defendant's nesli^once', wou'd pre
clude' a recoA-ery. Order affirmed.
- . __ —Collins, J. ■
Other decisions of ;y e£ teraay wore: \ ]
Alphonsine l-a J>;;d.\ respondent, v.-. I
; George- ■W. . Peak. and..: Thomas E |
. Adams, appellants... . " '
Syllabus-Pmihtiit was lining- horseback
m a public street. From some unknown
cause the- horse >r )r ,k fright- and backed
some thirty .or- forty feet unt;i he step- i
ped into a -JfHgm way. -which, extending:
into the street; 'ana been made by defend
ants for tJie : purpose of moving earth
from a cellar wliicii they were excavat
ing- on the* .lots • up to the . street sur
face. The-plaintiff then All or. jumped
oft and wasjpusned into the cellar by the
horse:' ■ Thegwafcon may. and the cellar
were . not- ijpajwled -or enclose! at the
point where: the accident occurred.
i Held, that: the fright of the horse and
not the failure?.Jto guard or enclose the
excavation was the proximate cause, of
plaintiffs iHJuries. - Judame'nt. reversed.
r■■ .££*'££ ,-..:,.: ......V —Collins, J.
Lloyd Barber, appellant, - vs. Thomas
Robinson, Tresptondent. ; - - •
Syllabus—*J! Upon a second appeal in
this action of ; ejectment, see 60 N. W. It.
CASTOR IA
For Infants and Children.
the Kind You Have Always Bought
Signature of (*Zt&ffi&fa£b44
th^ offiM^; that ? finclltl = Of fact to
cm effect that a certain fence was built
M? on 1 0"0'0 the tracts of land in
dispute and in part upon the other, in
the. year 1882 and subsequent to the se
curing of claim eo!or of title to both
I ,m CnnJ Jyi «>« ;t vi.iul1?? of the fence was
supported by the evidence —- -
riVw person who enters upon land i
claiming the right so to do under a con
veyanve which elves him color of title
py'l v^CCiV'r^s seizin by his entry, cx-
di'-h fclziji to tie wIICK Jraei
conveyed there by "his entry, extends t ueh
seizin to the whole tract conveyed, there
wav no actual adverse possession in the
„?• Various assignments of error dispos
ed of. Judgment affirmed. —Collins, J.
U IN I IB
Continued Vnim First l'age.
if was deemed inadvisable at this stase
of the criminal prosecution.s, resulting
from Air. Lawshe's Investigations, to
make public the data upon which they
are based. The secretary saM he hail
lalktKl v.ith KPveral senators on the sub
ject and they understood perfectly a
compliance with the terms of the resolu
tion %\:is Inexpedient at this time. He
did not regard the mat for us of much im
portance and had no idea, that it would
be made an issue between tho seriate
and tho war department. The course
usually followed in such cases would be
adopted in this matter and it would hs
allowed to drop from consideration for
the present.
COINAGE IN I960!
The yearly coinage statement cf ih->
director of the mint shows that the total
coinage of the mints of the United States I
was $137,599,40.1, as follows:
Gold, $»,272,942; .silver. $36,295,321 ' minor
coins, .$2.03], 137. ; .. • -, • • ■ •
Of iiio silver coined $24,560 f 912 v.as in
standard dollars. . - •■
The December coinage amounted to 57,
--758,550, of which $4.57K,(;97 Was gold, $2,
--850,555 silver and $301,328 minor coins.
UNCLE SAM'S CASH ACCOUNT.
The comparative statement of the re
ceipts and expenditures of the United
States--, issued by the treasury depart
ment today shows" that for the month of
December, 1900, the total receipts were
$46,846,508, 1 an increase as comparid with
December, ISSP, of J57.404. I
The receipts from the several sources I
of revenue' are given as follows:
Customs, ?lSi-186,634; a decrease of JG2-J,- !
250. .-'-•' . ...... |
Internal revenue, $25,200,093, increase
$185,119. \c-C~' V; I'---"■-'- • :
Miscellaneous, $3,089,179. increase $3:0,
--rsi. .
The expenaituree for the month were
$40,204,-622, which leaves a surplus for the •
month of $6,641,886. ...
■ The • following are the items of exp:n
dltur«: • ■ %
Civil and miscellaneous, $9,624,821," in
crease $1,918,432. •
War, $10,940,100, decrease $i€ 9,010.
•Navy, $4,478,514. decrease 5156.560."."- "
Indians, $1,045,995, increase ?£64,400.
Pensions, $10,803,<155, increase
Interest, $3,233,145, decrease SI, 175,543. ■
During the last six months the receipts
amounted to $291,841 as against $284,793,
--4H4 for the corresponding period last 'yiiiri*
The expenditures during" the last six
months aggregated $273,094,155, as against
$263,763,560 for the corresponding period
in ISB9. '.' ■■ ',?•.-;
.The net surplus during: the last h;x
months was $18,747,700. :• ' -
FOREIGN NEWS NOTES.
i.i.i.-ii.i' Queen Victoria lias-*appointsd
the Duke or York commander-in-chlef
of the Royal Marines.
Bumios Ayres—The new Argentine-
Chile.in protocol in connected with ihe
frontier settlenient has been -signed and
the president oi" Argentine and Chile
have exchanged telegrams or congratu
lation.
p L-ondon—The Spanieh steamer Olcota,
i from Genoa, Deo. 10, for X.-v> Orleans.
, has arrived at Las Palmas, having burst
her main steam pipes. The chief engineer
was killed by the explosion. She will bo
overhauled.
Weimar The condition of tha Grand
puke of Saxe-VTtimar, who is suffering
from influenza] complicated with inflam
mation of the lungs, la very serious
Phe action of hia heart i 3 gravely wsakl
ening. Mis illness is palnlc-ss, but th«
worst is feared.
, London-Tim Marquis of Dufferin and
Ava has withdrawn his resignation of
J 1, 6'chairmanship of the London aril
m ° » r, T'N 11? o'', corporation, limited, : and
postponed his departure for South Africa:
.oiiß^'ih 0 me?s, the shareholders .ana
consider the position of the company.
BrV's^lE— The' Ktoile Bc-lgile announces
that the health of 9 uoen .Mario Henri
etta hw-boen impaired, and that she
surfers constantly from bronchitis. The
queen a quiie weak and she does not leave
each day r ■"??"? tha" a COUpa. °^hourl
London—There was .anunimportant fail
3?'"oTiiv" c Stk ex-hii:'S"e, that of G. R.
Stockholm— TorkUi-sen lias written
a strong article which is published inthe
Norwegian papers urging members O f An
I, ii- 'i n )rlhiri;? to puss a law oom
iP^teay.^"i° llve >ix m °nths yeaili
borne, Tslo of Wight-It is ' officially
I announced that Queen Victoria has (fetid
sd; unless something unforseeh happens
| £ ,«-""'«■ ?, n the south of EYance
in jMsieh or April. '
i"L a °» n n ° f 7 Ti\ e Diil" News, it is reported,
Is about to change hands. The new pro
prietors have not yet been disclosed but
the. paper will continue Liberal, probably
without imperialistic tendencies.' Hen'y
W.. Mc.£Eingham, formerly editor of the
CSS^^ h< lhe nw **&*
Pan Juan de Porto Rico-Thousand 3 ■of
people Tuesday witnessed the starting of
the new trolley system. the island's first
road of that cleicription; The people wero
mucli asiorJsbed. •■ - ;-V.j:"V .- .
Cleveland—James 11. Hardy, • a well
known Attorney and veal estate dealer
of Ibis city, filed a petition in bankruptcy".
His liabilities are placed at $243,851; as
sets, :$12,400. Hardy built a number of
business blocks and at one time was pres
ident of the Superior Street Railway com
pany. • -..v.:,"- ;•-■■■"■
PhilstleJphia—The directors of inc.- Xew
Tcrk, Philadelphia & Norfolk railway,
in special meeting, declared a dividend
of 2 per cent preferred capital stock of
the company. This is the first dividend
ever paid in the history of the company;
The capitalization is $3,714,375.
New York—The two-year-old .son of Mrs.
Howard MeCormick, who is a daughter
of John D. Re ":efcHer, died in .Tarry town
of scarlet lever. . Another'child :of Mrs.'
McCormick h: also dangerously ill from
the ■ fever. . s ■:.....•
■ New York— Charles W. Wes.terYelt, for
mer cashier .for the. Dime 'Savings Insti
tution, of Newark, N. J., entered a plea of
i guilty to two indictments for forgery and
■a—MM^
!SJ W ASBHvBtf 9b By (irnflcfcrv of
BwbShmß^jfiy no ttS^MJatU Ah icfijLgFj kt^jsi^gss.l cures is ruord
n M could endure, and it is g
h OURED BY I no wonder that women B '
H «n| • ja. — h show the effects of work fcf
arm Green®-s ™d n r nT- J .
|| 11 Thousands of women B
jyf &**£& B^y K&S* J§& m offices, shops, and fae
fwtoiirl p wbbJ'w* tories break down in
■ M ' health under the fctrain B
g ■ll**l"iaß^Hl^^™™**VlllllLlUJ l r<aß^B^mnwn*wrti and become weak, tired, I
E I nervous, and debilitated, tortured with female complaints, or racked ft
1 I by headache, neuralgia, backache, and kidney trouble. B
I Here lies the great strain upon the nervous systems of women. y
I I They have little or no rest; their life is one continual round of work, H
I I duties here, duties there, duties without number. What wonder that ||
I such women go to bed at night fatigued, and wake tired and un- ■
I I refreshed in the morning 1 mi i M|lllll ■■iwnn niiiimininrwn r-ff
I - What women need is that :'-
I I great strength ener and in vigor- B^B* &B SPS 3* £>#>#> *St
I I ator of womankind, Dr. Greene's aa m **" ******** «p :
I I Nervura blood and nerve remedy &IB§*'8& A
I I —that remedy which rebuilds mm^mlTu W %£***+
I health and strength, purifies and FQR THE BLOOD ANO
I I enriches the blood, gives strength mamtftTG
■ I and vigor to the nerves, and the NEnVESm
■ strong vitality and energy to the ->|—^^^^^^^^^^
I I system which will enable women
I I to do their work and yet keep strong and well. It is this great mcdi- 11
I I cine they need. Nothing elße in the world can do its work. ||
MRS. M. D. PERKINS, of 100 O St., So. Boston, i"las«., *ay* : 1 1
I . " I was completely run down and could not eat, for the sight of food mad* 11
I I me sick. I did not sleep at night and was as tired in the morning as when I B
I I retired at night. My head and back ached all the time. I was completely ex- B
j I haustad if 1 tried to do my housework, p.nd could not walk without being dizzy. B
m ■ I was excessively nervous aud very weak. 9
Then I began to take Dr. Greene's Nervnra blood and nerve remedy, and I B
v 1 nanuoti say enough in its praise. I have not felt so well for years as Ido at th« ||
I present time, thanks to this splendid remedy. B
"I can now eat and sleep soundly, waking mornings Strong and refreshed. j
I Ido my housework, which is now a pleasure instead of a burden as formerly. V
I My weight has In- X
I creased about twelve WIWBBWWWiWgWBHBBCTMBBBBWBWWBpiBWWMi^M'"
I not guilty to two indictments for embez
zlement. The amount he is charged with
embezzling is $30,500. lie will be sen
tenced oext week.
Boston—The 322 nd great an 3 K«moral
court of Massachusetts was convened:
11 the senate Rufus A. Soule was elected
president, and in the houre J. J. Myers
v.'as chc-s-en speaker.
j Concord, N. 11.- The 107Ui session of the
I New Hamprhire legislature was opened
; The senate elected Bertram Ellis presi
dent: the bouse elected Cyrus 11; f.ini
for speaker. The election of a United
States senator will be held next week.
TEIEGRAPHIC BREVITIES
j Washington Secretary Hay is again.in
disposed and was confined to his home;
Washington- Word ' was' received at the
v.iv department today thai the trans
perl Meade-which carried a largo amount
of specie from San Francisco arrived at
Manila on the b'ist in-..
Washington—lTnited . States Consul
Wildmam, at Kbrigrkong; has been grant
ed a leave of absence and wil Iretnrri
to the United States immediately .>
--the benefit of his health.
Pensacola, Fla.— large Russian
ship Bjorkland, bound for Mobile, went
ashore on the outside beach, thirty miles
lViiJi Penaacola. Her crew was rescued,
I'm it Is feared the vessel will be a
total- loss.
Albany, ■X. V.—Mr. AVu Ting Fang will
be the guest of the State Bar associa
tion hero on Jan; 15-16, during its an
nual meeting. He is to speak before the
association on the subject ■.■/ "Chinese
Jurisprudence."
Abingdon, Va.—Gen. .Tamen A. Walker,
Hepublican candidate for congress, win
was defeated on the face of the' returns
by Congressman AY. F. Rhea, of the
Ninth congressional district of Virginia
has filed notice of a contest.
St. Louis, Mo.- All records of the St.
liOuis clearing house we're broken
Wednesday, the reports showing clear
ance of $10.r,57,5H. This is the greatest
total over shown . by. the clearing house
in any one day. i
Kansas City, Mo.— Twenty-five thousand
tons of common salt purchased in Port
ugal have been contracted for by a pack
ins; company of this city. The company
says the salt trust's h^n prices forced
it to buy abroad.
New Orleans—Five trainmen were kill
ed and one was badly injured in the head-;
collision • between two freight trains re
ported on (be Yazoc & Mississippi Valley
railroad at Melton, Misr?., Tuesday night
Both engines and several ears were de
molished. "
Kansas City; Mo.— was announced
that MiSs Celeste Fine', daughter of Mr.
;>nd Mrs. :B. F. Pine, of Virslriia City,
Mont., and Mr. Wilson S. Webb., cashier
of i the Missouri-Savings bank, of Kansas
City, were married here Tuesday. Mr
Flne is a member of the Montana leg
islature and" is senator AA". A. Clark's
tight hand n:ai). . •
New York—The American Sugar Refining
company has reduced the prices of aB
grades ,'' reflned sugar ten points, and
he National Sugar '■ Refining company
has made a cut of five points, making
the prices of both companies the same
The Arbuckles have reduced ■ the price
of granulated sugars.'. This puts all the
companies on the same basis.
TO LAY UP THE WHEELING.
Molili-au Will Take Her Place—
'J'rainluH,- Ship for AnunpollN.
TA.SJ^TNGTOX, Jan. 2.— The navy ue
partment announced today that the gun
boat-Wheeling la to be put out of com
mission, .and be replaced by the Mohican,
which like the Wheeling has been staton
ed at the Mare Island navy yards. The
Wheeling is to undergo extensive repairs.
Capt. Couden &m\ her entire crew are to
be transferred to the Mohican when that
vessel is commanded.
■ The board of naval construction today
decided to recommend to congress the con
struction of a 3,00) ton training ship for
the naval academy in accordance with
the plans of Supt. Wainwrigfot. It was
decided that the Chesapeake is too small
for the accommodation of the cadets.
&9S.PJJH! 1 s,0 1 * Rl° COFFEE gLr»^VejßiP& J 23! .
«wm b'° 1 ma"(Hi l1i; pound or J pounds for «1.CO; line Java and Mocha Flavored lor l»o a Jb. or 0 [to. for
f« ■"-♦. #*n » * "i"? Mocha flavored roosted coffee, 10c grade, for2sc a pound «r4 pound* r»7c.
.n^ D«f m 1 /7. >« " °." r 2,Pa .f ? liril-e lißt ir yon livo Ollt of town- »*J-ythlnß in the grocery line and Hums- >jr f
•nds 0f... ber artk-les priced in this price list at. wholesale prices to consume™. It win tell you What you (hoaM j/;
»ai»Blie Jr v? "end for," at O1"'a- ALSO TAKE tDVAVI'KiK OK TIIF. ABOVE PRICES. BUILDINC
PAPERS. V-»! ( .m a complete line.of alihlndsof bulMinirand roofing papers. Send forfi-Mimmitesaiui
our Prices. \,esol!comi.gitea iron and all kinds of steel ehlinirs and rooniiKs at wlmlp-.alo prlt^L fcond us
Epe-jhlcotlonßof your wants and we will send you net prices, v Sendl for ouc Furnltuie catalogue •
T. M. Roberts* Supply House, Minneapolis, Minnesota.
WEATHER FOR TODAY.
■ For Minnesota- Fair Thursday anl 5-\.
ciay: warmer, with easterly winds, l'hiirs.
day.
For Wisconsin- Generally fair Thiiiv
and Friday; warmer Thursday; winds
becoming easterly; fresh to brisk <>•• the
la kef.
For North Dakota- Generally far
Thursday and Friday; colder in Western
portion Thursday; w.nds beaming north
westerly.
For South Dakota—Generally fair
; Thursday and Friday; colder in' Kortß
; west portion Thursday; winds hezoiair.tr
' northwesterly.
For Montana—Occasional snow Thurs
day: colder: wljhlh becoming northwest
erly; Friday fair.
ST. PAUL*
Yesterday's observations, taken by t;,e
United States weather buieau, St. j'aul,
i i*. F. Lyons, observer, for the twent>
i four hours ended at 7 o'clock !tu<t night.
—Barometer corrected for temperature
and elevation. ;•- ;
Highest temperature z
Lowest temperature .'. —jo
Daily range ....'.. j;;
Average tenjpeiature '. -i
Barometsr .....'l'.lss (-.■■
Humidity «.'«
Precipitation .'^':\ ,'.
7p. in., temperature ,*'.' g
7 p. m., weather, clear; wind, soutlil.-ast:
YESTERDAY'S TEMPEKATuia 1??!
P.m-Highl ■ -'], ..; )•:,;,
Battli ford .-li ■ 12 Cheyenne :'i ■■',
Bismarck — 0 i>; Chicago y> \i
Calgary ....--132 —10 Cincinnati;V-"Vj •'<
Duluth ......-H 5 Cleveland .'.V.20 +*
Edmonton .. Hi -8 Galreston. .44 44
sa.vre — * 4 Jacksonville."tfi
Helena i 22 Marquette <• 4
Huron .......20 :•; Montgomery 41
Medicine Hat 9 2 Montreal ... „ „,
Minncdosa .-1C -33 Nashville .. *) ':•;
o-;- 1 T. 1 ■—?. ■i 6 X"w Orleaiwi-i «
8: Cm-tin? ■-» ~t Philadelphia iso %
8. <„r nt ••~li ~'-> pittsbur/i ....;- %
Wiili.«ton ... -l .} st. rx)uis :::i;i »
Wmnipeg „-m o Sail Lake V.M :g
Buffalo .. .'-16 *i gte. Marie .. 1 4
- Below zero.
__nyashinKton time (7 p. m. St. Paul).
TO DEFINE HIS AUTHORITY.
<;«.,..,•„„,..„, <«, Appeal Case in It*
Forest Reservation*.
WASHINGTON, Jan. 2.-The govern
ment proposes to appeal to the Unite -
States supreme court from the decision
°f..rhe I nited States district court of
California in the ease affecting the right
of congress to delegate Its- authority (■»
the secretary of the interior to raak«
rules and regulations as to grazing upon
forest reservations and to grant permit*
and to fix penalties.
The commissioner of the general land
office, while holding the authority given
to the secretary of the interior to be am
ple without further legislation, believe*
it would be well to settle the disputed .
Question as ' recommended to ' congress
by the secretary. This recommendation
is thai the should be a special act pass
ed which shall definitely determine the
question and define the rights of the
public upon the United States forest res
ervations and as to the conditions un
der which the secretary may issue per
mits for grazing purposes when the tax
may justify.
California Via the "Sunshine Itoate"
(C, M. & St. P. ny.).
Every Wednesday. a fine Pullman tour
ist sleeper leaves Twin Cities (3L Paul
S:ls a. m.. Minneapolis 8:05 a. m.) via
C. M. & St. P. Ry., and run through
to Lios Angeles, arriving there every
Sunday morning. -..-"'• ; *
Frlce of double berth in tbls tar $6 (V>.
Before making your arrangements for
California get particulars as to "Sun- -
thine Route."
Hundreds of Northwestern people pat
tronlze this popular servic? «>verv ben
son—it traverses one of the most interest
ing portions of America. -—..
For comfort and ease it Is not eur
passed. '.'•'■ '■'
Cheapest rates are obtainable via thi.i
route. Inquire of ticket agents, or writ*
J. T. Conley. Asst. Gen. Pass Aifent