Page:North Dakota Reports (vol. 1).pdf/574



Intention of Parties to Conveyance}}.

Whether deed with separate agreement to reconvey is a mortgage or sale with option to repurchase is question of fact. Devore v. Woodruff, 143.

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When writ of, will be issued by supreme court in exercise of its original jurisdiction. State v. Nelson Co., 88.

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In an action for damages caused by a fire which escaped from one of defendant’s trains, and ignited upon defendant's right of way, and which spread over adjoining land, and finally destroyed plaintiff's property, held, that whether the fire started by the defendant was the proximate cause of the injury complained of, or whether such injury was the result of another and independent cause, were, under the evidence, questions of fact for the jury, and the court did not err in submitting such question to the jury, with proper directions as to the law. This is true where the wind shifts or increases in violence after the fire starts, and before the damage is done. Gram v. N. P. R. R. Co., 252.

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Where the undisputed evidence shows that the fire which consumed plaintiff's property started on defendant's right of way, about one rod to leeward of the railroad track, and that such fire sprang up immediately after a train passed the point where the fire original and there was no other visible cause for the fire; and no other agency likely to set fires observed in that immediate locality where the fire started, held, that the evidence was sufficient to justify the jury in finding the primary fact that defendant’s train threw out and started the fire in question. Id.

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Where the answer admits that the defendant at the time in question owned and operated the railroad in question, and where the only question at issue was as to the width of the right of way of such railroad, held, that oral evidence was properly introduced to show the width of the strip of land upon each side of the track which defendant was occupying and using for right of way purposes, at or just prior to the date of the fire in question. Held, further, that defendant would be responsible for any act of negligence committed by it on the right of way which it was in possession of, and actually using for right of way purposes, whether it was or was not at the time seized of the title of such right of way, or whether it had or had not the right to the possession thereof. Id.

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The defendant requested the trial court to give the jury the following instruction: “If you find from the evidence that the defendant