4. In determining the situs of personal property for taxation, the legislature must regard the constitutional requirement of uniformity. Id.
5. The valuation and assessment of the property of a railway company, by one assessing body, as an entirety, and the dis- tribution of the value thus ascertained upon a mileage basis over the entire line of such railway, as provided by statute, do not op- erate as a changing of the situs of the prop- erty assessed. State ex rel. Morton v. Back (Neb.) 447 6. In the assessment of railway property for taxation, it is competent for the legis lature to classify such property, and pro- vide for the assessment of the same as per- sonalty, and to fix the situs of the property assessed by providing for the valuation of the property as an entirety, and the dis- tribution of the total value to each taxing district according to the number of miles of main track located therein. Id. Mode of assessment; valuation and equalization.
Due Process in Assessing Railroad Property, see CONSTITUTIONAL LAW, 8.
10. The proportional share of railway property as valued and assessed by the state board of equalization under a statute requiring railway property to be assessed as a unit, and the aggregate value to be distributed to the different counties, cities, and towns through which the road runs, on a mileage basis, belonging to and situated in a city and subject to taxation for munic- ipal purposes, may be equalized by the proper authorities of such city by lowering or raising the values of the same as thus ascertained, so as to bring about uniformity of valuation in respect of all property sub- ject to taxation within the municipality.
Taxes; situs, for taxing purposes, of tan- 7. The assessment, for municipal pur-gible personal property of domestic corpo- poscs, of railroad property according to the rations in the United States:-(I.) Scope plan prescribed by a statute requiring the of note; (II.) essentials of jurisdiction; valuation and assessment of railroad prop; (III.) localization of corporations; (IV.) erty by one assessing body as a unit, and the distribution of the aggregate value on principal office as domicil: (a) in general; a mileage basis for all purposes of taxation) of railroads; (V.) effect of certificate to the various counties, cities, and towns through which the road runs, does not vio- late the provisions of the fundamental law requiring uniformity and equality in the valuation and assessment of property for the purpose of taxation.
8. It is competent for the legislature to provide for the valuation and assessment of the property of railway companies, such as is required to be listed and scheduled with the auditor of public accounts by Neb. Comp. Stat. 1901, chap. 77, art. 1, §§ 39, 40, by one assessing body, and for ascertaining the value of the whole of such property of any one railway corporation subject to tax-
ation in the state as a unit or as an en- tirety and for distributing the value as thus found over the main line or track of such railway company and to the different taxing districts, municipalities, etc., on a mileage basis.
9. In the assessment for municipal pur- poses of railway property situated in cities of the metropolitan class, such as is re- quired to be listed with and assessed by the state board of equalization for general rev- enue purposes, under the provisions of Neb.
cil; (VI.) legislative power to fix the situs of incorporation on the question of domi- of property for taxation; (VII.) personal property physically present in the taxing side the state; (IX.) particular classes of jurisdiction; (VIII.) tangible property out- property: (a) railroad rolling stock; (b) water craft; (X.) conclusion. 431
Constitutional requirement of uniform- ity; power of legislature to change rail- road company's real estate into personalty and shift location for purposes of taxation; statute requiring assessment of railroad as a unit, and distribution on mileage basis to 449 the various taxing districts.
Levy of tax or assessment confined to pub- lic purpose; for public improvements. 807 Effect of tax sale to create encumbrance, rather than to devest title. TELEGRAPHS.
Law Governing Contract and Damages for Breach, see CONFLICT OF LAWS, 1.
Measure of Damages for Failure to De-
liver, see DAMAGES, 12.
Burden of Proving Loss from Delay in Delivering, see EVIDENCE, 7.
the elements of advertence with that of in- advertence and ordinary negligence with gross negligence, and the attention of the trial court is called thereto, though not in the most approved manner, it should com- pel the plaintiff to proceed upon one theory or the other, if both theories can be reason- ably spelled out of the pleadings, or give such permissible construction to the plead- ings as to confine plaintiff's claim to one species of wrongdoing. Rideout v. Winne- bago Traction Co., (Wis.). Questions for jury.
railroad terminal, and of the negligence of a passenger injured by attempting to use a stile over a wire fence for that purpose, are for the jury, where the evidence shows that there was an opening through the fence 40 rods away, and another 400 or 500 feet away, not in sight, which might have been closed on the day of the accident. Cotant v. Boone Suburban R. Co. (Iowa) 982
8. The question of the contributory negli- gence of a brakeman injured in attempting to couple two cars loaded with lumber so placed that the ends projected over the ends of the cars, so that he could not enter
between the cars in an erect position, but was compelled to do so in a stooping position, is for the jury. Schus v. Powers Simpson Co. (Minn.)
9. The court will not, as a matter of law, say that it is negligence for one driving a team to attempt to cross a street car track at a public crossing, after looking along the track 244 feet without seeing a car when he is only 20 feet from the track; but the question is for the jury. Marden v. Portsmouth, K. & Y. Street R. Co. (Me.) 300
10. Whether or not a savings bank is negligent in failing to preserve the signa- tures of depositors for comparison, in pay ing money on forged orders without com- paring the signatures, and in issuing a duplicate book without requiring adequate proof of the destruction of the original one, are questions for the jury. Chase v. Water- bury Sav. Bank (Conn.) Instructions.
11. An instruction contained in the gen- eral charge need not, at the instance of the parties, be repeated in special instructions. State v. Coleman (Mo.) 381
16. An instruction by the court that the jury must not consider the failure of the defendant to become a witness in his own behalf, in arriving at a verdict, is not erroneous. State v. Currie (N. D.) 405
17. A charge to the jury that in a de- cision on one branch of the case on trial
the supreme court had held that plaintiff's petition set forth a cause of action is er- roneous. Central of Ga. R. Co. v. Augusta Brokerage Co. (Ga.) 119
18. Where a complaint has a double as- pect rendering it indefinite and uncertain, because it charges both gross negligence and ordinary negligence, it is error to sub- mit the cause to the jury upon both as- pects; and, in case error is committed in that regard, resulting in a verdict in favor of the plaintiff upon the ground of gross negligence and ordinary negligence as well, it is error to render judgment thereon be- cause of inconsistency in the findings. Rideout v. Winnebago Traction Co. (Wis.) 601
19. It is misleading to charge that mu- nicipal ordinances do not justify the shoot- ing of a person by an officer in attempting to arrest him for their violation, in con- nection with a charge that the ordinances are admissible to prove the good faith of the officer in attempting to effect the ar- rest. State v. Coleman (Mo.) 381 Direction of verdict.
20. It is error to direct a verdict for de- fendant in an action by a servant against his master to recover damages for personal injuries, where there is some evidence tend- ing to show that the injury was caused by defective machinery. Dill v. Marmon (Ind.)
12. A plea of guilty of the theft to com- mit which a burglary is alleged to have been committed does not, where the fact of 21. The court may properly refuse to re- burglary itself depends on circumstantial quire the jury to return to their room and evidence, relieve the court of the necessity insert specified facts in their special ver- of instructing the jury as to the law gov-dict; but the remedy, if any, is by motion erning convictions on circumstantial evi- for a new trial. Pittsburgh, C. C. & St. L. dence. Beason v. State (Tex. Crim. App.) R. Co. v. Montgomery (Ind.)
13. The jury should not be instructed as to the law upon abstract propositions wholly disconnected with the issues of fact they are called on to determine. Central of
Trial; necessity of instruction as to law circumstantial evidence:-(I.) Intro-
Ga. R. Co. v. Augusta Brokerage Co. (Ga.) ductory; (II.) when evidence is entirely
circumstantial: (a) in general: (1) homi- cide; (2) larceny; (3) burglary; (4) other crimes; (b) possession of stolen property: (III.) when the evidence of guilt of accused is direct: (a) by positive testimony: (1) homicide; (2) larceny; (3) robbery; (4) rape; (5) other crimes; (b) by proof of the confession of accused: (1) homicide; (2)
larceny; (3) burglary; (4) other crimes; I trustee because of strained relations with (c) plea of insanity; (IV.) where evidence cestui que trust; because of strained rela- is both direct and circumstantial; (V.)tions with cotrustee; renunciation of trust; where instruction, or request to charge, effect of election by widow named in will as simply states abstract proposition; (VI.) trustee for benefit of testator's daughter to testimony of accomplice; (VII.) necessity take dower rights in opposition to will; in- of request for instruction; or exception; terference with testator's judgment in ap- (VIII.) refusal of request, the substance of pointing trustee. which is elsewhere charged; (IX.) accused in juxtaposition to main or inculpatory fact; (X.) as to question of intent; (XI.) miscellaneous cases. Of criminal case; impropriety of prose- cuting attorney or court appealing to prejudice of jury to obtain conviction; court intimating opinion as to guilt; judge's duty to construct charge so as to place burden of proof on state.
194 Question of proximate cause for court or jury. 246
Question of due care of plaintiff in action for personal injury as one for jury; ques- tion of negligence of defendant, and wheth- er it was proximate cause of injury, for jury. 301
Question for jury as to safety of appli- ances furnished by master; where testi- mony is conflicting; duty to submit ques- tion of master's negligence to jury. 798 Question for jury as to negligence of en- gineer in moving engine while coupling is being made. 888 Propriety of motion to strike out answer as method of testing sufficiency of mat- ters of defense presented. 969
By Building and Loan Association, see BUILDING AND LOAN ASSOCIATIONS,
VENDOR AND PURCHASER. Defect of Title as Defense Pro Tanto to Purchase-Money Note, see BILLS AND NOTES, 3.
Measure of Damages for Breach of Covenant of Seisin, see DAMAGES,
2. A title is not unmarketable so as to entitle a vendee to rescind his contract and recover back the earnest money paid, where no question of fact is involved, but only one 1. Mere unfriendliness of a cestui que of law, arising exclusively upon the con- trust toward a trustee is not sufficient struction of a record muniment of title, and ground for the removal of the latter. Polk all parties interested are before the court, v. Linthicum (Md.) 920 so that its decision will be a final de- termination of the matter. Id.
2. The removal of the widow as trustee of a fund provided for the benefit of tes- tator's daughter is required, where she elected to take her dower rights in opposi- tion to the will, thereby depleting the trust estate, and destroying a very important part of the scheme of the testator, remar- ried within a short time, became estranged from the cestui que trust and her cotrustees so that no intercourse could subsist be tween them, and kept the estate in needless litigation.
NOTES AND BRIEFS. Trusts; duty of trustee;
3. A doubt as to the construction of a
decree of distribution by a probate court, which is conclusive upon all parties inter- ested in the estate, does not render a title unmarketable so as to entitle a vendee to rescind his contract and recover back the Id. earnest money paid.
4. Payment of the money cannot be en- forced under a contract to purchase real estate which stipulates that the property shall be clear of all encumbrances, if the title has not been accepted, and there is an existing right on the part of a municipality to open a platted street over the property, removal of which will destroy the buildings without
VOTERS AND ELECTIONS.
A statute permitting the use of a voting machine which assures secrecy, free choice of candidates, a correct record of the vote, and a correct record and announcement of the total vote given for each candidate, does not contravene a constitutional requirement that all votes at elections shall be given by ballot. People ex rel. Detroit v. Board of Inspectors (Mich.) 184
Voters and elections; meaning of word "ballot" in Constitution requiring votes at election to be by ballot; validity of statute permitting use of voting machines. 184
VOTING MACHINES.
Constitutionality of Statute Permitting Use of, see VOTERS AND ELECTIONS.
Of Right to Have Entire Damages for Taking of Land Assessed, see EMI- NENT DOMAIN, 11.
1. Surface waters which by drainage collect in a natural basin or de- pression upon the premises of a dominant tenement, and escape therefrom only by percolation or evaporation, forming thereby a lake or pond permanent in its character, when so collected and coming to rest lose the character of surface water, and may not by artificial means, other than that inci- dent to the cultivation of the soil, be drained to the damage of a servient tene- ment, without liability in damages for such act. Davis v. Fry (Okla.) 460
2. Owners of improved property located adjacent to an adequate sewer or drainage system in a city are required to connect therewith the water gutters and spouts upon their buildings, and not to permit the rain water to collect and discharge at a point in a public alley, where, by reason of the volume and force thus attained, it enters adjoining premises, provided such connection with the drainage system can
By Insurance Company, see INSURANCE, reasonably be made. Ginter v. St. Mark's
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