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    LITTORAL RIGHTS ON LAKE ERIE.
    Court of Appeals for Cuyahoga County.
    State of Ohio v. The Cleveland-Pittsburg Railway Company et al.
    Decided, December 7, 1914.

      Riparian Owners on Lake Front — May Wharf Out and Make Land to the Line of Navigation — Title of the -State in Lake Waters and the Soil Thereunder — Government Control of Navigation and Fishery— Prevalence of the Common Law in Ohio — Review of the Holdings of Courts of the Various States as to Littoral Rights.

    1. The state of Ohio holds the title to the soil under Lake Erie, within its boundaries, as it does to the waters thereof over said soil, in trust, however, for the purposes of navigation and fishing.
    2. The United States Government has the paramount right to fix the line of navigation in said lake, but within that line so fixed by it and between it and the shore the state has the right to regulate navigation and fishing, so long as it does nothing to conflict with the regulations of the general government, or the access of the riparian owner to navigable water.
    3. Until the state otherwise determines by appropriate legislation, it will be held to have acquiesced in the line of navigation fixed by , the United States, and the owner of land fronting on Lake Erie has the right to wharf out and make land to the line of navigability sc fixed, and this right pertains to every foot of the shore property.

      T. tí. Hogan, Attorney-General, and Ii. M. Morgan, for plaintiff in error.

      Squire, Sanders c6 Dempsey and S. H. West, contra.
    Winci-i, P. J'.; Meals, J., and Grant, J., concur.
    Error to the court of common pleas.
   This is a proceeding to review the judgment of the common pleas court in dismissing an action brought by the state to enjoin the defendant from further filling in the shallow waters of Lake Erie on which their lands front and to require them to remove material already filled in and restore the waters to their former condition at the original shore line.

From the record it appears that defendants in error own various parcels of land having a frontage of about 1400 feet on the shore of Lake Erie, just west of the government pier on the west of the Cuyahoga river, said" frontage being about one-third of the water front in the west basin of the artificial harbor of Cleveland created by the construction of the government breakwater.

A portion of the shallow waters in front of the defendants’ lands has been filled in by them. In 1910 the United States Government, acting through.its War Department, established a harbor line about 900 feet out from the shore. Beyond that harbor line and between it and the breakwater built by the government, is a basin or waterway with water from 22 to 24 feet in depth, Avhich is requisite to afford wharfage to the vessels engaged in commercial navigation on the Great Lakes.

The work of filling in the shallow waters of Cleveland harbor and wharfing out to navigable water has been going on for many years. Millions of dollars have been expended on portions of the filled lands and upon them have been erected expensive devices for the unloading and transshipment of iron ore.

The .railroads owning lake frontage, the city of Cleveland and various manufacturing establishments and other littoral proprietors have made extensive fills and wharfs.

The theory of the state in the prosecution of this suit is that the general common law has always prevailed in Ohio; that under the rules of the common law, a littoral proprietor on Lake Erie has no right to wharf or fill out beyond Ihe shoie line; that the title of the state of Ohio to the waters of Lake Erie and the soil beneath is that of a real proprietor, subject only to the superior control of Congress under the Federal Constitution and subject to the public easements of navigation and fishery.

The defendants admit that the title to the subaqueous land is in the state of Ohio, not, however, as a private owner or absolute proprietor, but in trust for the protection of navigation and fishery. They claim that the so-called common law rule relied upon by the state is obsolete and does not prevail in Ohio, its courts having so decided. They also claim that the establishment of a harbor line by the federal government defines the line of navigation and that waters lying between the upland and the line of navigation are not used, nor capable of being used, for either navigation or fishery; that the establishing-of a harbor line creates a right in the riparian owner to move forward to that line, and that, therefore, the filling in complained of was an exercise of the property right incident to littoral or riparian ownership and is lawful.

We do not think that the claim that the shallow waters now being filled in are not capable of any use for navigation or fishery is sustained by any evidence, but it is agreed by all parties 1hat there has been no state legislation fixing a harbor line or regulating harbor or fishing facilities in the Cleveland harbor.

The state, seems to assume that the “general common law,” by that meaning the common law of England from the earliest date down to tile,' organization of the state of Ohio, and including all the decisions of the courts of England upon matters not regulated by statute, has always prevailed in this state, whether suitable to our institutions or not.

That is a mistake, as has frequently been held.

Tn the first volume of reported cases in this state it is said:

“Tt has been repeatedly determined by the courts of-this state that they will adopt the principles of the common law as the rules of decision, so far only as those principles are adapted to our circumstances, state of society, and form of government.” Lessee of Lindsley v. Coats, 1 Ohio, 243, 245.

The spirit of that decision was followed in the case of Carey v. Commissioners of Montgomery County, 19 Ohio, 245, see page 281, and it was said by the “old Roman,” Judge Thurman, in the case of Bloom v. Richards, 2 O. S., 387:

“The English common law, so far as it is reasonable in itself, stdtable to the condition and business of our people, and consistent with the letter and spirit of our federal and state constitutions and statutes, has been and is followed by our courts, and may be said to constitute a part of the common law of Ohio. But where it has been found wanting in either of these requisites, our courts have not hesitated to modify it to suit our 'circumstances, or, if necessary, to wholly depart from it.”

Another great jurist of this state, Judge Ranney, in the case of Railroad Co. v. Keary, 3 O. S., 202, used the following language:

“We profess to administer the common law of England, in so far as its principles are not inconsistent with the agencies and spirit of our own institutions, or opposed to the settled habits, or customs, and policy of the people of this state, thereby rendering it inapplicable to our situation and circumstances.”

Then stating his view of the law .applicable to the case in hand and that it was very confidently claimed that that view was at variance with all the adjudged cases in England and in this country, he said:

“We entertain the highest respect for these courts, and their undivided opinion upon any question arising upon the principles of the common law would cause us to hesitate long before we differed from them. But even upon such a question, we should be compelled to follow the dictates of our own understandings; and the more especially should we feel at perfect liberty to do so, when they did not profess to base their decisions upon any settled principle of law, but undertook to declare a new rule for their action. ” .

Many cases might be cited in which the Supreme Court of this state has found the common law of England inapplicable to the customs, business and condition of our people and refused to apply it. A notable ease of that kind, involving- a matter kindred to the subject here to be considered'’, is Lembeck v. Nye, 47 O. S., 336, where it was held that a non-navigable inland lake is the subject of private ownership and an owner of adjacent lands whose deed makes the lake one of his boundaries, takes to the center of the lake. Commenting upon the fact that in some of the states and in England, the rule is to limit the operation of the conveyance to the water edge and that the numerical weight of authority supports that rule, Judge P>radbury says:

“In this conflict of authority we are at liberty to adopt such rule on the subject as best comports with the presumed intention of the parties, or sound public policy, and the analogy of the rules in force in the state respecting boundaries upon running streams. ’ ’

The rule as to running streams was laid down in Gavit v. Chambers, 3 Ohio, 495, and if there is any analogy between that case and the instant case, it is in favor of the defendants.

The next assumption of counsel for the state is that under the rules of the common law a littoral proprietor on Lake Erie has no right to wharf out or fill in' beyond the shoreline.

Such is not the law in England today. See Duke of Buccleuch v. Metropolitan Board of Works, L. R., 5 H. of L., 418; Lyon v. Fishmonger Company, L R., 1 App. Cases, 662; Attorney-General v. Wemyss, L. R., 13 App. Cases, 192; North Shore Railway Co. v. Pion, L. R., 14 App. Cases, 612.

That it was once the law of England may be conceded, but when and under what circumstances and by whom was it so declared to be the law?

On this subject we have recourse to a recent book by Frederick R. Coudert, an eminent lawyer of the New York bar, who was counsel in the Brookhaven case which will hereafter be cited. The title of this book is “Certainty and Justice” and the eighth chapter of it is entitled “Perversion of Precedent — stare Decisis —History Misinterpreted. ” It is upon the subject here in hand and shows a thorough knowledge of the subject, citing the authorities.

We quote as follows:

“The theory of the kingly ownership of the foreshore was invented by an ingenious Grown lawyer, one Thomas Diggs, in the reign of Elizabeth. His claim was that the foreshore belonged to the Crown, not as other royal property, but as part of the royal prerogative, and he supported it in a learned thesis on the subject, based upon an assumption of a state gf facts of which there is no proof, and the reverse of which almost certainly exists. Before the reign of Queen Elizabeth the true presumption of fact with regard to the ownership of the foreshore should have been the exact reverse, namely, that it was in the riparian owner rather than in the Crown. It appears that during the reigns of Elizabeth and of James I, in a number of cases, the Crown claim to foreshore ownership was made by astute lawyers, filled with zeal to enlarge the royal jurisdiction; but all these cases seem to have been unsuccessful until the famous ease of Attorney-General v. Philpot, in 1628, which, we may say in passing, is mentioned in the dissenting opinion in the Brookhaven case as the leading English case establishing that doctrine. That case does not appear to be reported, but Mr. Moore has found the manuscript record, and gives it in extenso in his exhaustive work (History and Law of the Foreshore and Seashore). It is extraordinary .that it should be the foundation of a rule of property law, which until 1907 was the law in the state of New York, when we reflect that the case was decided by judges, some of whom sat in the famous Ship Money case, and upon whom history has placed a heavy load of obloquy. The decision was apparently procured, as the Ship Money judgment had been, by the personal pressure of Charles I for the purpose of obtaining for the Crown properties and revenues to which it had no just title. The claim, says Mr. Moore, ‘was founded in untruth and injustice, 'and the too great insistence upon it by Charles I unquestionably was one. of the causes of the great Revolution.
‘ ‘ Sir Thomas Townsend, writing to a friend as to the Philpot case, intimates that it will be properly disposed of ‘when some of the barons have received directions from the King. ’ The case itself seems to have been a moot ease, contrived by the Stuart monarch for the purpose of obtaining a decision which- might bring him needed revenues. The Crown lawyers raised the question by making a lease of a piece of foreshore to one Cornelius Vanderbilt, with a view to establishing legal title by an action. * " *
“The ‘Grand Remonstrance’ of 1641 is almost as noteworthy a landmark in the history of English liberty and constitutional law as the Grand Charter itself, yet how many judges who have learnedly considered these questions have had in mind the Twenty-sixth Article of that mémorable document, charging the King with ‘taking away of men’s rights under color of the King’s title to land between high and low-water mark?’
‘ ‘ After the downfall of the Stuart tyranny the claim seems to have been abandoned, or at least not pressed for many years, and the judgment in the Philpot case itself was apparently never executed, owing doubtless to the advent of the Revolution. There were, as there had been before, numerous cases relating to interference with the jtis publicum, but we must wait many years before we find another precedent for the Stuart doctrine of jus privatum. It has always been admitted that the jus publicum was inalienable, and in examining the early cases care must be taken to distinguish between the two.”

Johnson v. Barret, 3 Aleyn K. B. Reports, 10, decided in 1647, generally cited as upholding tihe doctrine of the Philpot case, upon examination of the subsequent history of the litigation, appears to have concerned an obstruction to navigation, or nuisance.

Sir Mathew Hale, who died in 1676, wrote a treatise, De Portibus Maids, which is found in Hargreave’s Law Tracts, and on page 85 is found the following much quoted statement:

“Indeed, where the soil is the King’s the building below the high-water, mark is a purpresture, an enroac’hment, and intrusion upon the King’s soil, which he may either demolish or seize or arent at his pleasure; but it is not ipso facto a common nuisance, unless, indeed, it be a damage to the port and navigation.”

Lord Hale is the weightiest authority in favor of the common law doctrine contended for by the state, but he does not seem to have believed that historically the King was the owner of the foreshore, but only that there was a presumption of law to that effect in the absence of proof to the contrary.

In 1795 the case of Attorney-General v. Richards (2 Anstruther, 602), was decided. The action was to abate a wharf and the court held that it was a purpresture and that it was immaterial whether or not it was an actual nuisance. Regarding the Philpot case the court say:

“It is objected that this case was in the time of Charles I; but it must be remembered that Lord Hale determined some of them, and approved the rest.”

Parmenter v. Gibbs (10 Price, 412), decided by tlie House of Lords in 1822, adopts the law as laid down in the Richards case.

Now these are the authorities which fixed the law in England, until it was modified by the recent decisions to which reference has been made.

There is no decision of the state of Ohio adopting the doctrine of these cases, and it has been departed from repeatedly by the courts of the various states of the Union and modified by legislation in some of them.

In New York state we find the question finally settled by the case of Town of Brookhaven v. Smith, 188 N. Y., 74, decided in 1907. The first paragraph of the syllabus of that case is as follows:

“A riparian owner whose land is bounded by navigable waters has the right of access thereto from the front of his lot, and such right includes the construction of a pier on the land under water, beyond high-water mark, for his own use or for the use of the public, subject to such general rules and regulations as Congress or the state Legislature may prescribe for the protection of the rights of the public, although under the common law of England such structure is regarded as a purpresture or an unlawful encroachment upon the rights of .the sovereign, and subject to removal at his pleasure. The fact that in the absence of statutory enactment the courts of this state are ordinarily bound by the rules of the common law does not compel them to incorporate into our system of jurisprudence principles which are inapplicable to our circumstances, and which are inconsistent with what a just consideration of those circumstances demand. Where no vested rights are actually eonerned, the application of common-law rules depends upon the extent to which they are reasonable and in accord with public policy and sentiment; and in a state like this, with its numerous large navigable bodies of water, in bays, rivers and inland lakes, and where so many riparian owners have made their easement or right of access practical and available by the construction of docks, piers and wharves, and have done so without interference by the state when superior public rights have not been obstructed, such a rule would be without justification and will not, therefore, be established by the courts. ’ ’

Judge Gray, who wrote the majority opinion in that case, to show that the common law of England was not applicable to the circumstances of the people of New York, uses the folio-wing language:

“We have but to consider the position of Great Britain, as an island, with short rivers, navigable only as far as the tide flows and ebbs, and a reason for the rigidity of the rule early asserted as to the rights attaching to riparian ownership may appear, in the apprehension of the ‘straightening of the port by building too far into the water.’ (From Hale’s de Portibus Maris.) Our position is different, physically and governmentally.
“The jus privatum of the Crown, by which the English king was deemed to own the soil of the sea and of navigable rivers, in his own right, rather than as a sovereign holding it in trust for his people, however applicable to the conditions in Great Britain, were totally inapplicable to the situation of the colonists of this country. In Gould on Waters, the author remarks, as to this, that ‘there is no evidence that the jus privatum * * * w as ever asserted in the colony as the right of the Crown, or that it has, until recently, been claimed by the states; but there is, on the contrary, in my opinion, the strongest evidence that this right has been abandoned to the proprietors of the land from the first settlement of the province and exercised by them to the present day, so as to have become a common right and thus the common law.’ (3d ed., Sec. 32.)
“I may observe, in passing, that in England the common law rule, which left the riparian owner without any remedy, when his light of access was destroyed by public works, has been modified, within recent years. (See Buccleuch v. Metrop. B’d of Works, L. R. (5 Eng & Ir. App., 418.)
“ It is a matter of general observation, of which judicial notice, may wisely- be taken, that riparian owners everywhere upon the numerous navigable bodies of waters within the territorial limits of this state have made their easement, or right of access, practical and available by the construction of,docks, piers, or wharfs and. have done so without interference by the state, where superior public rights have not been obstructed. These interests must be very large and if we shall hold with the English common-law doctrine, that they are purprestures, or unlawful encroachments upon the proprietary rights of the state, as would follow., if we affirm this judgment, and that they are removable at pleasure, it would result in causing a very grave- loss. Such a decision would be to ignore wdiat has been believed to be a common right, within numerous adjudications of our court.”

For much the .same reasons it vras held in Connecticut that though the title of a riparian owner terminates at ordinary high-water mark, he has the exclusive right to wharf out below the low water mark to navigable waters, or to dig channels from his uplands to navigable waters, so long as he does not interfere with free navigation. Prior v. Schwartz, 62 Conn., 132.

In this connection it is well to advert to a suggestion made by the state in the trial of this case, upon which it offered evidence which was rejected, that the defendants could secure access to deep water more cheaply by dredging in to their own shore line than by filling in' the territory between the shore line and the harbor line. This seems to yield the whole question .here involved in favor of the defendants. If the state owns the sub-aqueous soil as & proprietor, what difference is there between the trespass of digging a hole in it, or piling dirt on top of it ?

Of course there is no difference, and the real question remains, does either digging a channel or wharfing out interfere with navigation or fishery, as regulated by the state?

The right of the riparian owner to wharf out to navigable waters in New Hkmpshire is placed upon the grounds of usage or custom. Clement v. Burns, 43 N. H., 609; Concord Co. v. Robertson, 66 N. H., 1.

The right to wharf out in Maine was established by colonial ordinance in 1641 (Deering v. Proprietor’s Long Wharf, 25 Me., 51; State v. Wilson, 42 Me., 9); and in Massachusetts this early colonial statute, later repealed but considered as part of the common law, gave the riparian owner the right to wharf out 100 rods beyond high water mark. Bradford v. McQuestion, 182 Mass., 80.

In Rhode Island this right, from the earliest time, was considered inseparable from- the ownership of the upland. Providence Steam Engine Co. v. Providence, etc., Steamship Co., 12 R. I., 348; Folsom v. Freeborn, 13 R. I., 200.

In New Jersey the courts hold that by custom the shore owner can reclaim the land between high and low water marks, but such privilege is a mere license which the Legislature may revoke at any time, before execution. Bell v. Gough, 23 N. J. Law, 614; Stevens v. R. R. Co., 34 N. J. Law, 532; Heiney v. Nolan, 75 N. J. Law, 397.

The right to wharf out to the limit of navigability is recognized in Delaware. H. & H. Co. v. Parschall, 6 Del. Ch., 435.

In Maryland the matter is regulated by statute (Gautier v. Baltimore, 53 Md., 422; Baltimore v. Steamboat Co., 104 Md., 485) ; and the same is true in Florida. Alden v. Pinnney, 12 Fla. 348; Sullivan v. Mereno, 19 Fla., 200.

In North Carolina, by statute, a riparian owner has the exclusive right to a grant from the state of the right to wharf out to the line-of navigation (Gregory v. Forbes, 96 N. C., 77) ; and without any such grant from the state he has the same right, subject, however, to such general regulation as the Legislature may prescribe for the protection of the public’s interests (Bond v. Wood, 107 N. C., 139). This” is also true in Georgia. Mayor, etc., of Savannah v. Georgia, 4 Ga., 26.

The right to wharf out in Alabama is based by its courts upon immemorial usage and is recognized by statute. Turner v. City of Mobile, 135 Ala., 73.

The act of the Republic of Texas regulating such matters has been construed to give the riparian owner the right to wharf out, the court basing this conclusion upon the necessity of the ease, in order to make wharves useful. Galveston v. Mennard, 23 Texas, 349.

The states on the Pacific slope have adopted the old English rule (San Francisco Sav. Union v. R. G. R. Petroleum Co., 144 Cal., 134; State v. Sturtevant, 76 Wash., 158; Pacific Elevator Co. v. Portland, 65 Or., 349); and the United States Supreme Court has administered the law accordingly, in those states, holding that the question of title to the foreshore, and soil under navigable waters depends upon the law of the state where the question arises. Shively v. Bowlby, 152 U. S., 1.

On the Great Lakes we have seen what is the law of New York (Brookhaven v. Smith, 188 N. Y., 74), and we apprehend that decision is ajiplicable to Lake Ontario; see also Thousand Islands Steamboat Co. v. Visger, 179 N. Y., 206.

In Pennsylvania the rights of the riparian proprietor are said to end at the water’s edge, in the absence of legislative authority extending them. Tinicum Fishing Co. v. Carter, 61 Pa. St., 21.

In Michigan we find the case of Lincoln v. Davis, 53 Mich., 375, where it is said:

“In England, Where the common law had its origin, there were no great inland seas, such as our great lakes, and consequently no precedent can be found in the jurisprudence of that country which determines the applicability of the common law doctrine of riparian rights to the question under consideration.
‘1 The paramount rights of the public to be preserved are those of navigation and fishery, and this is best accomplished by limiting the grants of lands bordering on the great lakes to low-water mark. It does not follow, however, that the owner of lands thus bounded has no right to the use of the water or soil beneath it. It is well settled in this country that where the law is that the owner is limited by either high or low-water mark, he has the right to construct warehouses, wharves or piers in the water in front of his land, in aid of and not obstructing navigation.” Citing many eases.

Thomas M. Cooley, Chief Justice of the Supreme Court of Michigan, sat in this case and concurred in the judgment. In his work on Constitutional Limitations, 5th Edition, page 675, is a note Which reads as follows:

“In the recent ease of Railway Co. v. Renick, 102 U. S., 180, it is decided expressly that the land under the water in front of a riparian proprietor and beyond the line of private ownership, can not be taken and appropriated to a public purpose without making compensation to the riparian proprietor. This is a very sensible and just decision.”

In Wisconsin it has been held that, “riparian rights proper rest upon the title to the bank of the water, and are the same whether the riparian owner owns the soil under the water or not,” and that such riparian owner “unless prohibited by local law, has a right to construct in shoal water, in front of his land, proper wharves or piers, in aid of navigation, and at his peril of obstructing navigation, through the water far enough to reach actually navigable waters.” Diedrich v. Railway Co., 42 Wis., 248.

To the same effect are the decisions of the state of Minnesota, and the reasons for so holding are given at length and seem persuasive. It would be profitable to quote from the decisions of that state, but time forbids. They are as follows: Union Depot Co. v. Brunswick, 31 Minn., 297; Lake Superior Land Co. v. Emerson, 38 Minn., 406; Miller v. Mendenhall, 43 Minn., 95; Hanford v. Railroad Co., 43 Minn., 104.

In Illinois the old common law rule prevails. Revell v. People, 177 Ill., 468; Commissioners v. Fahrney, 250 Ill., 256.

The decisions of the Supreme Court of the United States are not in entire harmony. In Yates v. Milwaukee, 10 Wall., 497, Mr. Justice Miller said:

1 ‘ Whether the title of the owner of such a lot extends beyond the dry land or not, he is certainly entitled to the rights of a riparian proprietor whose land is bounded by a navigable stream; and among those rights are access to the navigable part of the river, from the front of his lot, the right to make a landing, wharf or pier for his own use or for the use of the public, subject to such general rules and regulations as the Legislature may see proper to impose for the protection of the rights of the public, whatever those may be. * * * This riparian right is property, and is valuable, and, though it must be enjoyed in due subjection to.the rights of the public, it can not be arbitrarily or capriciously destroyed or impaired. It is a right of which, when once vested, the owner can only be deprived in accordance with established law, and, if necessary that it be taken for the public good, upon due compensation. ’ ’

In Shively v. Bowlby, supra, Mr. Justice Gray adopts Lord Hale’s conclusion, and this authority fully sustains the claim of the state in this case, but the decision merely administers the law of Oregon, conceding that the rule is different in some of the states.

In the later case of Scranton v. Wheeler, 179 U. S., 141, the' court thus stated the law:

“If the riparian owner can not .enjoy access to navigability because of the improvement of navigation by the construction, away from the shore line, of works in a public navigable river or water, and if such right of access ceases alone for that reason to be of value, there is not, within the meaning of the Constitution, a taking of private property for public use, but only a consequential injury to a right which must be enjoyed, as was said in the Yates case, in due subjection to the rights of the public— an injury resulting incidentally from the exercise of a governmental power for the benefit of the general public, and from which no duty arises to make or secure compensation to the riparian owner. The riparian owner acquired the right of access to navigability subject to the contingency that such right might become valueless in consequence of the erection under competent authority of structures on the submerged lands in front of his property for the purpose of improving navigation.”

This is a declaration that the riparian owner holds his right to reach the line of navigation subject to the state’s right to regulate navigation and fix the line; no question of ownership by the state of the foreshore was necessarily involved.

We now come to the decisions of Ohio, having in mind that there has been no legislation upon the subject by the state (except, perhaps, the act of March 29, 18'67, 64 O. L., 87, repealed April 30, 1868, 65 O. L., 115, and unless the act of May 10, 1910, 101 O. L., 236, is a recognition of the mile that “made or submerged land” in front of a riparian owner’s property belongs to him), and also having in mind that the riparian owner’s rights have been established as to navigable rivers (Gavit v. Chambers, 3 Ohio, 496), and as to non-navigable inland lakes (Lembeck v. Nye, 47 O. S., 336).

The case of Sloan v. Biemiller, 34 O. S., 492, decided in 1878, involved only the right of fishing in Lake Erie and its bays, and the court held that such right is not limited to the proprietors of the shores, but is as public as if they were subject to the ebb and flow of the tide. This holding wás based upon the proposition that the rule of the English common law that the owners of land situate on the banks of non-tidal streams, though navigable in fact, are owners of the beds of the rivers to the middle of the stream, is not applicable to the owners of land bounding on Lake Erie. The fourth paragraph of the syllabus of the case is as follows:

“Where no question arises in regard to the right of a riparian owner to build out beyond his strict boundary line, for the purpose of affording such convenient wharves and landing places as do not obstruct navigation, the boundary of land, in a conveyance calling for Lake Erie and Sandusky bay, extends to the line at which the water usually stands when free from disturbing causes.”

Tims we see that the Sloan ease expressly reserves the question here involved, where the question does arise as to the right of a riparian owner to build out beyond his strict boundary line.

The opinion in the case, written by Judge White, puts it this way:

“We are not required in this ease to consider any question in regard to the right of a riparian owner to build out beyond his strict boundary line, for the purpose of affording such convenient wharves and landing places in aid of commerce as do not obstruct navigation. It was held in Dutton v. Strong that these rights of the riparian owner apply to the lakes as well as to tide waters (1 Black., 23). See also Austin v. Rutland R. R. Co., supra, 25 Vt., 215.”

Here is a clear intimation that if the question we now have before us had then been before the Supreme Court, it would' have followed the rule laid down in the cases cited. Let us therefore examine said cases.

In Dutton v. Strong, at page 31, it is said:

“Bridge piers and landing places, as well as wharves and permanent piers, are frequently constructed by the riparian proprietor on the shores of navigable rivers, bays, and arms of the sea, as well as on the lakes; and where they conform to the regulations of the state, and do not extend below low water mark, it lias never been held that they weré a nuisance, unless it appeared that they were an obstruction to the paramount right of navigation. Whether a nuisance or not is a question of fact; and where they are confined to the shore, no positive law or regulation was violated in their erection, the presumption is that they are not an obstruction, and he who alleges the contrary must prove it. Wharves, quays, piers and landing-places, for the loading and unloading of vessels were constructed in the-navigable waters of the Atlantic states by riparian proprietors at a very early period in colonial times; and, in point of fact, the right to build such erections, subject to the limitations before mentioned, has been claimed and exercised by the owner of the adjacent land from the first settlement of the country to the present time. (Ang. on Tide Wat., p. 196.)
“Our ancestors, when they immigrated here, undoubtedly brought the common law with them, as part of their inheritance; but they soon found it indispensable, in order to secure these con's eniences, to sanction the appropriation of the soil between high and low water mark to the accomplishment of these objects. Different states adopted different regulations upon the subject; and, in some, the right of the riparian proprietor rests upon immemorial local usage. No reason is perceived why the same general principle should not be applicable to the lakes, although those waters are not affected by ebb and flow of the tide; and, consequently, the terms ‘high and low water mark,’ are not strictly applicable. But the lakes are not navigable, in any proper sense, at least in certain places, for a considerable distance from the margin of the water. Wherever the water of the shore, so to speak, is too shoal to be navigable, there is the same necessity for such erection as in the bays and arms of the sea; and where that necessity exists, it is difficult to see any reason for denying to the adjacent owner the right to supply it; but the right must be understood as terminating at the point of navigability, where the necessity for such erections -ordinarily ceases.”

To the same effect is the Vermont case.

The next case in Ohio is Hogg v. Beerman, 41 O. S., 81, where it was held that land covered by the water of a navigable landlocked bay, or harbor, connected with Lake Erie, may be held by private, ownership, subject to Hie public rights of navigation and fishery.

In coming to this conclusion the court quotes with approval Hie case of Lorman v. Benson, 8 Mich., 32, where Judge Campbell, speaking of the Detroit river, said:

“Applying the principles of the common law to the tideless stream in question, we do not conceive what public interests would be subserved by placing it on the footing of tide-waters, when fhe rules applying to public fresh water streams provide amply for every common easement. The right of navigation, to which all others are subservient, is in no way injured or abridged by this holding, and the necessities of wharves, and other conveniences, which could not be made available at all in such a stream as this, unless owned by the riparian proprietor (because not accessible except over his grounds), would be an inducement to modify the common law, were it otherwise, rather than change it as it is now. ® And we have no difficulty in holding 11 at the plaintiff is entitled to every beneficial use of the property in question which can be exercised with a due regard to the common easement. The cutting of ice is the exercise of a valuable privilege, in securing that which has become stationary on the freehold, and we conceive of no reason which would justify a denial of it.”

The Detroit river is but a part of the Great Lakes and the language quoted is given for the purpose of showing the interdependence of the rights of navigation and wharfage.

We come now to the first case squarely involving the questions here at issue. It is the case of White v. Cleveland, 14 C.C. (N. S.), 369, decided by the Circuit Court of Cuyahoga County in 1911 and affirmed by the Supreme Court without report, 87 O. S., 482.

The eases considered by the circuit court involved the title to made land in the Cleveland harbor east of the government pier at the mouth of the Cuyahoga river, while the case now before us involves the title to lands similarly situated west of that river. - Tn 1872 the city of Cleveland condemned the premises in question fronting on the lake for park purposes. Thereafter it filled in and made land and built piers in front of this park, called Lake View Park, out to the line of navigation established by the United States Government. Taking advantage of certain enabling statutes passed for its benefit it was proposing to appropriate the fee in this made land for the purpose of acquiring the reversionary rights of the owners from whom it had appropriated, in order to have a fee simple title so that it could convey part of the made land, as well as part of the upland of the park, 1o certain railroads for depot purposes and lease other parts and piers to a steamboat company for wharf purposes.

, To enjoin the appropriation proceedings and the lease to the steamboat company the suits in question were brought.

The whole contention of the reversioners was that, subject to park uses, they were entitled to the right to wharf out, as riparian proprietors. The city claimed the same right as proprietor for park uses. The steamboat company’s lease depended upon the validity of the city’s right to wharf out, as well as the validity of the enabling legislation referred to. The whole case depended upon the right to wharf out, and required the settlement of that question before other matters should be considered.

Because of the difficulty of elucidation of the other questions in the case, for the sake of brevity alone, and because the common pleas judge who first tried the case had fully covered the point, his opinion being published (White v. Cleveland, 12 N.P. [N.S.], 225), the question now under consideration was shortly disposed-of as follows:

‘ ‘ The claim of plaintiffs in all four suits is that by the appropriation proceedings of 1872, the city acquired only an easement for park purposes in Lake View Park, including the uplands; that by appropriating an easement for park purposes in the shore, it at the same time appropriated for park purposes the riparian rights which were appurtenant to the shore; that these riparian rights included the right to wharf out, to make land to the limit of navigability, unless prevented by the state; that the city appropriated this right for park purposes; and having made land by the exercise of this riparian right without interference by the state, the made land was affected by the same easement for park purposes with which the upland was affected; that the piers are but a pprtion of the made land. Having the right to fill out the entire land to the harbor line, unless prevented by the state, the city had the right to fill out as much of it as it desired for this purpose, and its rights were neither lessened nor increased by the fact that it did not fill it out uniformly, but made part into piers and left part water.
“For the reasons and upon the authorities cited by counsel For plaintiff in his brief, we conclude that the above recited claims are well founded.”

It is true that the state of Ohio was not a party to that ease, so the question there determined can not be considered res adjudicata as to it, but it furnishes the rule of law applicable to this case, as determined by the courts of this state and invokes the rule of stare decisis, for most of the vast improvements started by defendant in this case, involving the expenditure of great sums of money, have been made since and in reliance upon the decision in the White case. We consider the White case lays down a rule of property upon which the defendants had a right to rely.

Having considered the trend of authority upon the subject, let us now view the matter in the light of reason.

Between the shore of Lake Erie and navigable waters in it is a stretch of shallow waler not suitable for navigation. The state of.Ohio owns all the waters of Lake Erie and the soil under it within its boundary, but charged with the trust of holding the same for all the people to be used in common by them for the purposes of navigation and fishing.

The riparian proprietor, whose title stops at the shore line, owns in fee to that line. There can be no passing from the water upon his land without his consent, yet he, as one of the public, at least, if not as a riparian proprietor, has the right to pass from his land upon the water for navigation or fishing.

The shallow water referred to is an obstacle to navigation in that it prevents the landing of vessels. There can be no commerce by ships without landing places, and the construction of landing places is manifestly in aid of navigation. Wharfs are as necessary to commerce by water as depots are to commerce on land by rail — more necessary, in fact, as was pointed out in the White case.

The state, owning the subaqueous land, can erect no dock or wharf in front of the riparian proprietor which will interfere with his access to the water. By the nature of his position, fronting upon the water, he has the right of access to it as he has to a street or highway in front of the land upon which his property may front. These are valuable rights which should not be taken from him without compensation.

On the other hand his immemorial right has always been to prevent the public coming upon his private property without his consent, either from a highway or the water.

IIow are these rights of the state, charged with a trust for the people for navigation and fishing, to be reconciled with, the private rights of the riparian owner?

Manifestly the state, in subordination to the authority of the ■ general government over such matters, can fix the line of navigation, beyond which the riparian proprietor shall not pass with any devices intended to aid him in reaching navigable waters, but it should not forbid him to construct any aids to navigation. Piers, docks and wharfs, no matter how constructed, whether of piling, stone, concrete or filled in earth, are assuredly aids to navigation. They are then in aid of the trust with which 1he state is charged and not in derogation of it.

Such being the case, common sense dictates that they should not be forbidden. Generally, they have hot been forbidden, as we have seen by the authorities cited.

Custom in this state, as shown by the evidence and within the judicial knowledge of this court, has recognized this right of the riparian owner to wharf out to the line of navigability in the waters of Lake Erie.

For over one hundred years the people of this state," through its Legislature, has in nowise interfered with this practice of riparian owners.

The federal government has recognized the right by fixing a line of navigation and granting licenses to fill in to that line, without prejudice, however, to the rights of the state.

• .Upon reason and authority, therefore, we conclude as follows:

1. The state o£ Ohio holds the title to the soil under Lake Erie within its boundaries as it does to the waters thereof over said soil, in trust, however, for the purposes of navigation and fishing.

2. The United States Government has the paramount light to fix the line of navigation in said lake, but within that line so fixed by it and between it and the shore, the state has the right to regulate navigation and fishing, so long as it does nothing to conflict with the regulations of the general government, or the access of the riparian owner to navigable water.

3. Until the state otherwise determines by appropriate legis■lat-ion, it will be held to have, acquiesced in the line of navigation ■fixed by the United States, and thé owner of land fronting on T.ake Erie has the right to wharf out and make land to the line of navigability so fixed, and this right pertains to every foot of the shore property.

In conclusion it may be well to state that we have declared the law as we have found it, without consideration of those questions of public policy urged by the Attorney-General, which should more properly be addressed to the Legislature.

If it is wise for the state or the municipalities upon the shore of Lake Erie to acquire, construct, and control and perhaps lease, public docks and wharves upon the lake front, the matter can be properly legislated upon, having due regard to the rights of the shore owners, taking from them no property rights without due compensation therefor, pursuant to the mandate of the Constitution and consonant with common honesty.

The judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    INCOMPETENCY OF EVIDENCE RELATING TO A PROPOSED COMPROMISE.
    Court of Appeals for Hamilton County.
    The City of Cincinnati v. August J. Henkel & Brother.
    Decided, July 16, 1914.

      Controversy as to Amount Due Under a Contract for a Street Improvement — Compromise of Claim which Was Not Carried'Out — Error in Admission of Evidence Relating Thereto.

    In a controversy as to the amount due to the plaintiff, it is prejudicial error to admit evidence which on its face shows that it related entirely to a proposed compromise settlement.

      Alfred Bettman, City Solicitor, and Stanley W. M err ell and" Mitchell Willy, Assistant City Solicitors, and Geoffrey Goldsmith, for plaintiff in error.

      Bolle, Taylor & O’Donnell, contra.
    Jones, O. B., J.; Swung, J., and Jones. E. H., J., concur.
   This action was brought by plaintiff below under a contract for grading and macadamizing G-randin road from Madison road to its southeastern terminus. In the contract,' in which the plaintiff was described as the “party of the second part,” the following provision wras made as to the computation of the amount of -work done:

‘‘D. The said party of the second part further agrees that that the certificate of the chief engineer of the board of administration, or of one of the assistant engineers of said board, to be appointed by the said board to survey the work, shall-be the account by which the amount of work done shall be computed. ’ ’

The contract provided that the city was to pay plaintiff the sum of $1.95 per cubic yard for all broken stone placed in position.

"When the work was completed the engineer made calculations and prepared an estimate. The original figures showing that 1,920 cubic yards of broken stone had been - furnished and placed, and the contractors complaining as to this quantity the engineer made further allowances because of mud which had existed upon parts of the road when the preliminary cross section was taken and because of an error in the cross section levels, and increased this estimate to 2,228 cubic yards, which was the figure giveh in the final estimate and certificate accepting the work.

Plaintiff below complained to the board of public service, but the engineer declined to change his figures, and. the estimate was paid as thus made. The board of public service, however, appointed a committee which recommended that: "the road be accepted by this board as complete; that the contractor be paid upon the basis of the engineer ’s estimate, and that in addition thereto he be allowed the sum of $500 as a compromise to settle the differences at issue; payment to be made in the usual manner upon the .presentation of properly approved voucher.”

This report was adopted by the majority vote of the board, three members voting for it and one against it, and the compromise was accepted by the contractor in -a letter, as follows:

"We accept your offer of compromise for the amount due us for the improvement of Grandin road from Madison pike to eastern terminus, and agree upon payment to us of the estimate of your engineer and the sum of $500 that the same shall be in full of all claims and demand which we have against the city of Cincinnati under our contract with it for the improvement of such roadway.”

After which action of the board, at its meeting one week later the engineer submitted final estimate voucher for resurfacing Grandin road, amounting to $7,034.15, which contained 2,228 cubic yards of stone and which was approved and ordered paid by the majority of the board, and the clerk submitted an additional voucher in favor of the plaintiff in the sum of $500, ‘authorized by the resolution of this board on Aug. 19, 1904, in settlement of claim of said contractors for stone furnished in contract for resurfacing Grandin road, from Madison road tosoutheastern terminus, being in excess of final estimate for work done as submitted by the engineer.”

This voucher was approved and ordered paid; by a majority vote of said board.

The final estimate as prepared by the engineer and ordered paid, amounting to $7,034.15, was-duly paid by the city, but the additional voucher in settlement of claim of A. J. Henkel & Brother “being in excess of final estimate for work done as submitted by the engineer ’ ’ amounting to $500, on being presented to the city auditor for payment was refused by him and never paid by the city.

This action was therefore brought to recover $2,090.40, being for 1072 cubic yards of broken stone which plaintiff below claimed to have been furnished in excess of the amount as computed by the city engineer, and said plaintiff claimed that the engineer did negligently, arbitrarily, unreasonably and in bad faith certify that the amount of broken stone was 2,228 cubic yards, when plaintiff had actually furnished 3300 cubic yards.

The defendant denies bad faith or mistakes on the part of the engineer, and asserts that the amount certified was the correct amount of broken stone furnished, and pleads full payment in accordance with the final estimate, and sets up the contract provision which provided that the certificate of the engineer shall be the account by which the amount of work done should be computed.

In the trial of the case plaintiff was permitted to offer in evidence the unpaid voucher for $500 which had been prepared and allowed by the board of public service in favor of the plaintiff below by way of compromise, as well as the extract from the minutes of the board of public service showing its action in regard to the proposed compromise. This evidence was admitted over the. objection of the defendant and its exception noted.

There can be no question, under the rule laid down in Sherer v. Piper & Yenney, 26 O. S., 476, that this evidence which on its face is shown to be entirely a matter of compromise and settlement, was incompetent, and it‘could not be otherwise than prejudicial.- Defendant in error, however, contends that it was offered only to show a declaration against interest on the part of the city and was competent for that purpose. We do not understand under what rule this claim could be upheld. It is the action of one board, on behalf of the city, and it does not appear to be authorized by the contract itself, and on its face shows that it is entirely by way of compromise. There is no finding by the board that the estimate of the engineer was in any way incorrect or improper, but on the contrary it was approved and confirmed by the board and the payment ordered under it, the additional payment being, as shown on its face, to settle, an additional claim made by the contractor. If the board had intended to find that more stone had been delivered than were included in the engineer’s estimate, they should have so stated, or should have ordered a remeasurement and computation.

The attempt made by the trial judge to limit the effect of this improper evidence in his general charge to the jury, does not in our opinion cure the error of its admission.

Judgment below is therefore reversed and cause remanded for a ne'w trial.


text:
    AGREEMENT BETWEEN PUBLISHERS UPHELD.
    Court of Appeals for Coshocton County.
    The Age Publishing Co. v. The Times Publishing Co.
    Decided, 1914.

      Contracts — Not in Restraint of Trade, When — Newspaper Publisher Withdraws From the Evening Field for a Consideration.

    An agreement was entered into between two corporations owning newspapers, both published in the evening in the same city, that in consideration of a sum of money specified and to be paid in due course one of said publications should be changed from an evening to a morning paper, and further that for a period named the said company would not again enter the evening newspaper field in that city. ' )

      Held: That the contract was not in restraint of trade, and an action lies for damages on account of its breach.

      C. B. Bell, for plaintiff in error.

      W. 8. M err ell, contra.
    Shields, J.; Voorhees, J., and Powell, J., concur.
   This case comes into this court upon a petition in error and a cross-petition in error on the part of the defendant in error. The plaintiff! in error complains because the court below erred in dismissing its petition, and the defendant in error complains because said court erred in'refusing to grant the relief prayed for in its cross-petition.

In its petition filed in the court below the plaintiff alleged, m substance, that both it and the defendant at the time of the commencement of the proceedings herein were engaged in publishing evening newspapers in the city of Coschocton, Ohio — the newspaper published by the plaintiff being known as the Coshocton Age, and the newspaper.published by the defendant being known as the Coshocton Times-, that both the plaintiff and defendant are corporations under the laws of Ohio, doing business in the city of Coshocton, Ohio; that on the 28th day of March, 1912, said companies entered into a certain contract in writing whereby the defendant in error, defendant below, for a valuable consideration to be paid it by the plaintiff in error, plaintiff below, agreed that not later than April 16, 1912, it would cease to publish its said newspaper as an evening newspaper and would publish it as a morning newspaper, and that it would not return to the evening field or publish its said newspaper as an evening newspaper for a period of at least two years; that the defendant failed to carry out the terms of said contract and committed a breach thereof in returning to the evening field and publishing the said Coshocton Times as an evening newspaper on or about January 1, 1913, contrary to the terms of said contract, and ever since said time the said the Coshocton Times has continued to be published as said evening newspaper, to the damage of the plaintiff in the sum of $1,000; for which said sum judgment is prayed for against the defendant.

To this petition the defendant filed an answer and cross-petition, and for answer admits that said companies on March 28, 1912, were engaged in publishing newspapers in Coshocton, Ohio, as set forth in said petition; that on said date said companies entered into a contract in writing whereby the defendant for a valuable consideration to be paid to it by plaintiff agreed that it would commence not later than April 16, 1912, to issue its daily newspaper in the morning instead of in the evening,- and would uot return to the evening field before at least two years from the date of said contract, and it denies all the other allegations of said petition.

By way of cross-petition the defendant set forth therein a copy of said contract by the terms of which the plaintiff agreed to pay the defendant for said change in the publishing of its newspaper from an evening to a morning publication the sum of $1,000, of which said sum the sum of .$83.33 was to be paid on the execution of said contract, and $83.33 was to be paid on the first day of each of the succeeding eleven months until said full sum of $1,000 was paid, said installments not to bear interest until due, and all payments to be made at the Coshocton National Bank in Coshocton, Ohio; that the defendant on the said 16th day of April, 1912, commenced to issue its newspaper in the morning instead of the evening and so continued until December 9, .1912, when it sold all of its property and assets, except accounts and contracts, to Edward Compton and John W. McDowell, and since that time it has not published any newspaper of any kind, and the defendant says it has thereby fully complied with all the terms and conditions of said contract on its part to be performed; that the plaintiff has paid on said contract the sum of $666.64, leaving due and .unpaid thereon the sum of $333136, payable in four separate monthly installments of $83.33 each, with interest as set forth in said cross-petition, and asked judgment therefor.

A demurrer was filed to the second defense and cross-petition of the defendant set up in its answer, for the reason that the same does not state facts sufficient to constitute a defense in law. This demurrer searches the record and of course reaches back and tests the sufficiency of the petition.

The view we take of this case renders it unnecessary to consume much time in disposing of it on demurrer. Considering the allegations of the petition in connection with the manifest object of the two companies entering into said contract, as disclosed by the terms of said contract, we are at a loss to see wherein said contract is in general restraint of trade within the intent and meaning of the anti-trnst law. Under the terms of said contract said publications were to be and were issued daily as theretofore as long as the Coshocton Times continued to be published by the defendant in error with no diminution to its patrons in the matter of advertisement or otherwise. True, under the contract made, no interest in or good will of this publication passed to the Age Publishing Company, the sole object of said contract being that the Coshocton Age retained the. evening field and the Coshocton Times occupied the morning field, the object and effect being in no wise to stifle competition, but simply to enhance the business interest of each publication. "While contracts in general restraint of trade are to be regarded as contrary to public policy and therefore void, we are not prepared to say that the contract made between the parties hereto is of that character, and we therefore hold that the court below erred in holding that said petition was demurrable. This view of the case also disposes of the demurrer to the cross-petition.

' The judgment of the court below in sustaining said demurrer is reversed and said cause is remanded to said court for further proceedings according to law. Plaintiff will be granted leave, to file a reply in thirty days from this date. Exceptions may be noted on behalf of both parties hereto.


text:
    CONVEYANCE IN FRAUD OF CREDITORS.
    Circuit Court of Cuyahoga County.
    John H. Lees v. Frank H. Kennedy et al.
    Decided, November 10, 1905.

      Equity — Courts Will Not Decree a Vain Thing.

    In an action to set aside a conveyance, alleged to be in fraud of creditors, a decree will not be granted .where it appears that the interest of the judgment debtor in the property does not exceed the amount to which he would be entitled in lieu of a homestead, and where the only result of such a decree would be to increase the costs in the case.

      D. B. Carpenter, for plaintiff.

      F. B. Bruml, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   Lees tbe plaintiff, is a judgment creditor of Frank H. Kennedy. He is unable to obtain anything to satisfy his judgment upon execution, and he seeks to have certain conveyances of real estate set aside, to have such real estate decreed to be the property of said Frank B. Kennedy, and that such orders may be made as will subject it to the payment of his judgment.

We find as a fact that before the 26th day of December, 1898, Frank and his wife jointly owned a parcel of real estate known as 84 Walnut street, in the city of Cleveland, worth about $5,000 on which was a mortgage of $3,000. Most of the purchase money for this property was furnished by Frank, though a small part was furnished by the wife. When the deed was taken to the two, Frank was not in debt and had a perfect right to have it deeded in all or part, to his wife as he saw fit.

On the date last named Frank deeded his one-half interest in this property to his wife for the nominal consideration of five dollars, but in fact without any valuable consideration whatever. Before this last, conveyance was made the plaintiff had obtained the judgment which is'the basis of his present action.

In April, 1899, Prank and his wife deeded this Walnut street property to the Curtis-Ambler Company, receiving as consideration the assumption by the Curtis-Ambler Company of- the mortgage debt already mentioned and the conveyance to Mrs. Kennedy of seven lots of land on the west side of the river in this city. These lots were immediately thereafter mortgaged by Kennedy and his wife for the sum of $2,000 for a loan of that amount made to them.

This was all the money ever obtained by them for said lots, they having been afterwards subjected by foreclosure proceedings to the payment of such mortgage. Of said sum of $2,000 so obtained on said mortgage loan, one-half was the property of Prank and one-half the property of the wife. Frank took $800 of this $2,000 so received on the mortgage and used it for the payment of debts which he owed; Mrs. Kennedy deposited $1,200 of the said $2,000 in the bank; $1,000 of this was hers;.$200 of it was Frank’s.

This sum of $1,200 Mrs. Kennedy put with money of their son Arthur Kennedy in purchasing a lot and building a house where the family now live, on North Perry street, in Cleveland. The title to this is in Arthur. We find these facts from the testimony produced to us, and the witnesses impress us as telling the truth. Their story is a natural one. Frank had become involved; his son Arthur from the time he was sixteen (he is now 24 or 25) has been earning money and living with his parents, saving his money and putting it in with that his mother had in the bank for the purpose of procuring this home. The evidence shows that the father was consulted about the lot before the purchase; $200 of his money went into the purchase; indeed, it was the most natural thing in the world that the father should have been consulted about the purchase of the lot. The evidence shows that this property, encumbered as it is, is worth only about what it cost. The title to it is in Arthur. Frank has an equity of not more than $200 in this property. At the outside his equity can not exceed $300. He is a resident of Ohio and is a husband living with his wife. He has no homestead other than his equity in this property He makes claim of exemption in lieu of homestead.

Were we to appoint a trustee under the statute to work out the rights of the parties in this property, it is clear that there would be nothing which the plaintiff could get toward the payment of his claim. We should aid nobody; we should increase the costs needlessly, without any benefit to the plaintiff.

We feel that to appoint such a trustee would be a vain thing, which we are not called upon to do.

The petition of the plaintiff is dismissed. I have not talked with my associates about the question of costs. Before the entry is made, I will do so. The entire case was considered by us, but the question of costs was not.


text:
    AMBIGUOUS WORDS IN A WRITTEN CONTRACT.
    Circuit Court of Cuyahoga County.
    Reuben Aronson v. The Frankfort Chair Co.
    Decided, October 27, 1905.

      Parol Evidence — Ambiguous Words May be Explained by Parol Evidence.

    1. Ambiguous words used in a written contract may be explained by parol evidence as to what was said at the time the words claimed to be ambiguous were used.
    2. When a printed order form provides that orders will be filled at the earliest possible date, writing on the order “ship at once,” “rush,” indicates a special agreement as to shipment and creates ambiguity.

      R. A. Castner, for plaintiff in error.

      White, Johnson, McCaslin Cannon, contra.
    Marvin, J. (orally); Winch, J., and Henry, J., concur.
   The defendant in error, hereinafter spoken of as the plaintiff, brought suit before a justice of the peace against the plaintiff in error, hereinafter spoken of as the defendant. After trial before the justice of the peace the case was appealed to and tried in the court of common pleas. The petition sets forth that the plaintiff is a corporation; that the defendant was doing business as “Auction Storage & Loan Co.” and that he was indebted to said plaintiff on an account, a copy of which is attached to and made a part of the petition, and prays for judgment for the amount of said account. The account reads:

“Frankfort, Ky., Oct. 1st, 1901.
“Auction Storage & Loan Co., Cleveland, Ohio.
“In account with
“Frankfort Chair Co.
“6 doz. 5436 chairs
¡Í1 doz. 165 chairs $46.75.”

The defendant answers, admitting that he was doing business as “Auction Storage & Loan Co.,” and denying all other allegations of the petition, except that the ease came into the common pleas court by appeal from the judgment of the justice of the peace.

On the trial the plaintiff offered in evidence, among other things, the deposition of one Augustus F. Boshe, from which it appears that he took an order for goods from the defendant on the 18th of September, 1901; that he mailed the same to the Frankfort Chair Company on the morning of the 19th. Though it is made probable from his testimony that he took an order in writing from the defendant, it is not distinctly said so by him. In any event the plaintiff did not offer any such writing in evidence, nor does the witness anywhere stat.^ that the goods ordered are those charged for in this account. He says he shipped all .the goods ordered e.xeept one-ha'lf dozen rockers, which the plaintiff did not have in stock and for which no charge is made, and that the shipment was made on the 1st of October, 1901.

Plaintiff also took the deposition of one Charles W. ITinnan, who testifies that he is manager of the shipping department of the Frankfort Chair Co. He says he received the defendant’s order in his department September 30, 1901, and shipped the chairs ordered, except one-half dozen rockers, on October 1st. He nowhere says that he shipped the goods charged for in the account sued upon.

The bill of exceptions does not set out all of the evidence, but states that in addition to the two depositions already mentioned, evidence was given on the part of the plaintiff tending to show that the defendant had admitted the claim of the plaintiff, and that evidence was given on the part of defendant tending to disprove such admission. Of course, with the bill in this condition, the court can not say that the verdict is not supported by the evidence, though such incompetent evidence as appears in the deposition is certainly very weak.

The plaintiff rested its case without introducing, as has already been said, any written order given by the defendant for goods.

To make the defendant’s case, both he and his wife went upon the stand, and before the written order was introduced by anybody, and when there had been no evidence introduced about it, except as shown by the deposition to Boshe who took the order, it was sought to show by each of them what was said between the parties at the time the order was given. Boshe had testified, that he took the order and mailed it to the plaintiff and that the goods were shipped in accordance with the order, except that one-half dozen chairs had not been sent because the plaintiff did not have them in stock, that the goods were shipped as promptly as possible and as promptly as is the custom with such orders in the trade. Then this question had been asked of Boshe:

. “Was there any request made by the defendant out of the ordinary at the time he made this order in regard to getting the chairs to him, and* did you understand from him that, if he got the chairs in the regular manner and in the regular course of business that that was all he demanded?”

To that Boshe answered :

“No extraordinary request was made and he understood that, the chairs would be shipped to him as quickly as possible.”

For the purpose of showing that the goods ordered were for a particular purpose and .that the agent who took the order agreed to deliver them within one^veek, this question was asked the defendant when he was on-fthe witness stand:

“What was said by you at the time the order was given, to the agent who took the order for the chairs, as to the time when they should be shipped ? ’ ’

This was objected to, the objection sustained and a proper exception taken.

When the defendant’s wife was upon the stand she testified that she was present when the order for the goods was given; that she heard all the conversation pertaining to such order, and plaintiff offered then to prove by her that defendant’s agent agreed to have the chairs in Cleveland within one week; that defendant told him that the chairs were to fill a contract made by defendant with one M. M. Rahy, who was about to open a restaurant and that they must be ready for delivery to Rahy before the 28th day of September, 1901, or the order should not be taken. To this end she ivas asked by counsel for plaintiff the following question:

“What was said by the defendant to th.e agent of plaintiff at the time the order was given as to the time when the order should be delivered in Cleveland ? ”

Objection to this question was made by plaintiff, and sustained, and proper exception taken. Bearing in mind that up to this time no written order had been offered by either party and that plaintiff’s agent had answered that no extraordinary request was made, we are unable to discover any ground upon which the objection made to the testimony of either of these witnesses should have been sustained. The plaintiff was not relying upon any writing but upon oral testimony as to having received an order and having complied with it. The defendant undertook by the same kind of evidence to show that what was said at the time the order was made varied the order from that which the plaintiff claimed. The ease was argued, here, however, upon the theory that the written order was already in evidence, though it had not then been offered, but immediately thereafter it was put in evidence and is on a printed form evidently prepared by the plaintiff, and rods as follows:

At the top of the order appeared the words in print “Frankfort Chair Co., Frankfort, Ky.” Printed on the left hand side of tbe paper are words “Order No.” Under that “Ship to,”; under that the word “When” and under that the word “Terms.” Then further down and across the order from left to right and so separated as to indicate that columns are to be filled in under the several headings, the following words appear in print:

“Doz. Number.....White or Wood finish ...., K. D. or S. U., Per Doz...... Amount..... Description.....”

Then there appears in writing these.words: “Cleveland, 0., Sept. 10, 1901. ’ ’ Extending along the line of the printed words “ship to” appear in writing the words “Auction Storage & Loan Co., 187 Ontario St.” Then after the printed word “Address” is written “Cleveland Ohio.” Then on the line with “When” in writing “At once,” and then in parenthesis the word “Rush” in writing. Then after the word “Terms” is written the terms of payment that were made. Then under the printed words “Numbers” and “Wood” are words indicating the number and kinds of chairs that were ordered.

Then at the bottom of the order in printing are these words:

“Unless otherwise constituted, all balance orders will be filled at the earliest possible date. Will make no freight allowance or allowance for breakage on goods in transit, as we hold transportation company’s receipt that chairs will be delivered in good order. ’ ’

As has already been stated, the ease was argued to us as though that writing 'had already been introduced in. evidence, and then it was urged that any testimony which could be given by this husband or wife as to what was said at the time the order was received would be to permit evidence to contradict or vary the terms of the written contract.

It is said that there is nothing in this contract that is ambiguous or requires any explanation. It is recognized by lawyers that parol evidence will not be received to vary the terms of a written contract, hut a written contract, the terms of which are ambiguous, may be explained by the circumstances under which the writing was made. It is said, as I have already said, tliat there is nothing ambiguous in any of the words used here, and it is said that all of the words have a meaning distinctly understood in the trade.and so well understood by everybody that they must have known, if they had this writing, just what they meant. After “When” are the written words “At once.” But it is said the Avords “At once” have a fixed meaning among business men in an order for goods, and that they mean, with all convenient speed; they mean, AAÚthin a reasonable time. As used in this order, is it possible that they meant that? If so, they need not have Avritten them in at all. “Unless otherwise, constituted all balance orders will be filled at the earliest possible date.” If they didn’t mean to change that at all the writing of the words “at once” was entirely unnecessary. But it must be assumed that they wrote them in there for. some purpose. They didn’t need to write them in to indicate that goods Avould be furnished at the earliest possible date, for they had alalready said that in print. But that is not all. Then follows the Avord “Rush.” That has a fixed meaning in business. I find by the dictionary that word means: “with great haste and violence.” It has other meanings. • It clearly did not mean that here, but it has meant something or they would not have Avritten it in. Noav, AA'hat do these words mean as used by the parties at the time this order was made? If we can find just Avhat was said at the time, and if that was said which it is claimed was said would be shown .by the answer of this defendant and his AA'ife, that Avould have aided very materially in determining what was meant.

The authorities are uniform that you may introduce parol evidence to explain ambiguous words, and you may introduce such evidence to show the circumstances under Avhich the ambiguous words are used. Burrett v. Allen, 10 Ohio, 426; Elliott on Evidence, 597; Leonard v. Stickney, 131 Mass., 539; Tuttle v. Burgett, 53 O. S., 498; Becker v. Jordon, 3 O. S., 439; Wigmore on Evidence, pp. 2430-2465.

The ease of Quarry Co. v. Clements, 38 O. S., 587, is especially in point in this case, where what was said by the parties at the time the words were used which- it is claimed were ambiguous Avas affirmed.

For error in sustaining the objection to the question put to defendant below and the question put to his wife, the judgment is reversed and the .case remanded to the court of common pleas.


text:
    SPECIFIC PERFORMANCE REFUSED.
    Circuit Court of Cuyahoga County.
    Felix Kamarsic v. J. A. Smith, Trustee.
    Decided, November 10, 1905.

      Contracts — M-ust be a Meeting of Minds.

    In an action for specific performance, where the evidence discloses that there was no meeting of the minds as to the amount of the purchase price, specific performance will be refused, but the court will decree the repayment of the purchase money already received - by the vendor.

      H. Remington, for plaintiff.

      Smith & Taft, contra.
    Marvin, J. (orally); Winch, J., and Henry, J., concur.
   Suit was' brought by Kamarsic against Smith, as trustee, setting out that the plaintiff had purchased two certain lots belonging to Van DeBoe, Haeger & Co., and that Smith was the trustee in whom the title stands; that plaintiff has performed all that he was to do except to pay $18 which he tenders, and he asks for a specific performance of the contract.

The case has given us no small amount of difficulty. The plaintiff testifies that prior to the making of the written contract, which was finally made between the parties on the 9th day of June, 1902, he went upon the property accompanied by a man who is now in the penitentiary, whose name I do not remember, and by a Mr. Shimman, an agent’ of Van DeBoe, Haeger & Co.; that the price then fixed upon the two lots was $165. He produces, also, as a witness one Martin Locan, who says he was present, and that the price fixed for one lot was $80 and for the other, $85.

That this last witness is very likely to be mistaken as to the price fixed is manifest from the fact that he failed to remember the numbers of the lots. He says they, were 124 and 125, whereas they were 624 and 625. It is not at all remarkable that he should have forgotten those numbers or misunderstood them, but it is no more remarkable that he should have misunderstood the amount of money; that he understood $165 when $265 was mentioned.

The prices that had been fixed upon these lots was $140 for the corner lot and $125' for the other lot, making $265. But we are not satisfied that that was said at the time they were upon the property. This was in April, 1902. Afterwards, in June, a written contract prepared by the vendor was signed by the two parties. That reads in words: ‘ ‘ The said party of the first part agrees to pay for said lands the sum of two hundred and sixty-five dollars,” and then immediately follows, “$165.”

A book was given to the plaintiff, a pass-book, I suppose it is called, which he was to take with him and again produce at the office of the Van DeBoe, Haeger Co. when he made his payments. On that book, on the outside and at the top of the book wherein the payments were to be made are the figures $165. The plaintiff could read figures; he could not read words.

We are of the opinion that there never was a meeting of minds of these parties on the price of the lots. When the contract was signed the vendor supposed that the price was $265 as written in words, and the vendee that it was $165 as appears in figures. That being true, there never was a contract, and that being true, then the plaintiff is entitled to have repaid to him all he had paid, together with interest on such payments from the time of the payment up to the time when it is repaid, and the costs of this proceeding are assessed one-half against the plaintiff and one-half against the defendant.


text:
    FORGED CHECK OF DEPOSITOR. SIGNED BY “HIS MARK.”
    Court of Appeals for Hamilton County.
    The Peoples Bank & Savings Company v. Jon Cereguti (also spelled Ceregut).

    Decided, March 31, 1914.

      Banks and Banking — Identification of One Who Signs by Mark — Pro Forma Witnessing of the Making of the Mark Does Not Protect the Bank Holding the Deposit.

    The burden of justifying payment of a check or draft is on the de fendant bank, and where the signature is by mark and the signature card requires that a signer by mark shall be identified the identifying witness must know the man who made the mark, and an identification by one who does not know personally the man making the mark does not protect the bank paying the draft so signed.

      Cohen, Mach (& Hurtig and Maxivell ¿t' Ramsey, for plaintiff in error.

      Galvin & Bauer, contra.

    Jones, O. B., J.; Swing, J., and Jones. E. II., J., concur.

      Affirming Cereguti v. Peoples Bank & Savings Co., 12 N.P.(N.S.), 159.

   The defendant in error, who was plaintiff below and whose correct name- is Jon Ceregut but whose name was written Jon Cereguti in the second pass book hereinafter referred to and in the original petition, brought this action against the plaintiff in. error, who was defendant below, to recover from it the sum of $1,600 deposited in its savings department, which had accumulated from deposits made from time to time, no part of which had at any time been withdrawn, and also to recover the accrued interest thereon in the sum of $22.43.

The defendant below admitted that it conducted a commercial and.savings bank and that the deposits were made in its savings department pursuant to certain rules and regulations among which were the following:

“4. Deposits and the interest thereon may be withdrawn by the depositor in person, or by written order, bnt in either ease, the pass book must be presented that such payments may be entered therein.
“5. As the officers of the company may be unable to identify every depositor, the company will not. be responsible for loss sustained where a depositor has not given notice of his or her book being stolen or lost, if such book be paid in whole or in part on presentation.
116. In all cases the payment upon presentation of a deposit book shall be a discharge to the company for the amount paid.”

On June 11, 1908, an account was opened by plaintiff, in the name of Jon C'eregut, who gave his address as 1979 Central avenue, and pass book 2507 containing its rules and regulations in its usual form was issued and delivered by defendant to him, and deposits were made and entered in said pass book from time to time, and interest credited thereon, and on August 11, 1909, the total credits in such pass book amounted to $1,622.43.

At the time of the making of the first deposit the depositor signed a signature card by making his X mark thereon, his name and the words “his mark” having been written on the line opposite the printed word “signature,” together with a statement “ to be paid when witnessed by one witness. ’ ’

The rules of the company provide that the depositor by signing the signature card thereby assents to th'e rules and regulations of the company. While the proof fails to show that all of these rules and regulations were made known to or explained to him, he would no doubt be held to be bound by them so far as would an ordinary depositor who could read and write.

No part of this deposit was drawn out until August 11, 1909, when a draft in favor of the Capital National Bank of Indianapolis, for $1,600, purporting to be signed on its face by Jon Ceregut, his X mark, and endorsed on the back “Witness to mark G. F. Patterson,” together with a collection form slip from said Capital National Bank accompanied by said pass book Number 2507, were received by the defendant, apparently in the ordinary course of business. The defendant, believing that said signature by mark, to the draft, was genuine, because it was attested by the signature of a person who was then shown in the bank directory to be the cashier of said bank, and supposing that the officer of the Capital Bank who signed as a witness to the mark had satisfied himself as to the identity of the maker of the draft, and relying upon this without further investigation, paid the draft, issuing its draft on a New York bank and sending same to .said Capital National Bank. It claims that this payment was made in accordance with its rules and regulations and in the exercise of good faith’ and reasonable care on its part, and that it was in no way negligent in performing its duty to its depositor.

It appears that the plaintiff below was a foreigner, a native of; Roumania, who was extremely illiterate, could not speak or understand English, but only Roumanian and a little German, and was unable to either read or write the German or the English language; that he was introduced at the bank at the time he made this deposit by one of its own officers named Landesco, with whom he had become acquainted, and that the initial deposit in this bank was a withdrawal from another bank. It appears that he was in the habit of keeping his pass book locked up in his trunk in the room in which he slept, which was also occupied by at least three other foreigners. It also appears that on August 5,1909, a pass book, No. 3534, was issued by the defendant below, in the name of Jon Cereguti, in which was credited a deposit of $2; that this pass book came into the possession of plaintiff and that on December 26,1909, a deposit of $271; and on January 10. 1910, a deposit of $30, were all credited in this book. It was not until January, 1910, that plaintiff below learned that the amounts credited to him in pass book No. 2507 had been paid out by the bank. It seems that he desired to again transfer his account from the bank of the defendant company below and deposit it in another bank with which Landesco had become associated, having left defendant’s bank. Ceregut then discovered for the first time that pass book No. 3534 did not represent his entire deposit with the defendant bank and that the bank denied that it was still liable to him for the first $1,600 deposited. His testimony indicates that he thought either that he never had but one pass book and that it was the one 'then in his possession, pass book 3534, and that it contained all of his deposits, or else that the original boob, pass book 2507, had been retained by the bank when his deposit amounted to $1,600 and that the bank had then furnished him the second book. Ceregut’s testimony was given through an interpreter and is not quite clear as to his ideas, whether he knew he had handled two books or whether he realized that the second book did not contain all the deposits made in the first and thought that for some proper reason the bank saw fit to retain the first book and allow him to continue to deposit in the second. It is clear, however, that he did not suspect or believe that his pass book showing the $1,600 credit had been stolen or lost until after he had been advised by the bank that this money had been paid out by it.

The case was tried to a jury and resulted in a verdict for the plaintiff, upon which verdict a judgment was afterwards entered by the court.

The principles of law involved in this case are laid down and decided in the ease of Hough Avenue Savings Bank Co. v. Andersson, 78 O. S., 341, which is practically decisive of this case. It was there held that the fact of negligence by the bank was properly submitted to, and found by the' jury. We think that is true in this case. There is no question that the money was not paid either to plaintiff or by his order, and that he was in no way responsible for its payment to another person by defendant. The law making a bank responsible for payments made by it upon forged checks or drafts is well settled in Ohio. Dodge v. Nat’l Exch. Bank, 20 O. S., 234; Armstrong v. Nat’l Bank, 46 O. S., 512.

The draft, the payment of which defendant relies upon, was signed by mark. G-. F. Patterson, who witnessed the mark, admits that he made no investigation as to the identity of the man, who was simply introduced to him by a man of whom he knew nothing. The signature card containing plaintiff’s mark, held by the bank, contained the express provision requiring his signature by mark to be identified by one witness. That certainly meant that the identifying witness must be one who knew the identity of the man who made the mark, otherwise there would be no security in having a witness at all.

The genuineness of the signature must be proved (Greenleaf on Evidence, Section 558). And one who alleges a signature by mark has the burden of proof (Abbott’s Trial Brief, 2d Ed., 461). Under the conditions of the deposit in this case it was essential to .the validity of the signature by mark that it be witnessed by a person knowing the identity of the man signing, and a signature by mark must be proved as any other signature. 36 Cyc., 455, and cases cited.

In this ease there is no question of the fact that plaintiff deposited his money in the bank, and no question of the amount. Evidently the officers of the bank relied entirely upon the action of their correspondent, the Capital Bank. If it was at fault in failing to identify the maker of the draft, the plaintiff in this case can not in any way be held responsible. The burden of justifying the payment is on the defendant. Robinson & Sons v. Upton, 12 C.C.(N.S.), 314.

In our opinion the answers made to the interrogatories, by the jury, are supported by the evidence. We find no error in the refusal by the court of the special charges relied upon by the defendant, and we do not believe that the record shows any prejudicial error in the statements made by counsel for plaintiff which are claimed by defendant to have constituted misconduct on his part.

A careful review of the record fails to show any prejudicial error, and the judgment is affirmed.