text:
    STATUS OF UNBORN CHILD NOT AFFECTED BY DIVORCE OF ITS PARENTS.
    Court of Appeals for Greene County.
    Reamy A. Wilson v. De Etta Wilson et al.
    Decided, November, 1917.

      Descent — Not Bastardized Thereby — But Becomes an Heir to His Father’s Estate — May Sue to Contest His Father’s Will — Plea in Abatement in a Will Contest.

    1. The legitimacy of a child is not affected by the fact that it was begotten before the marriage and born after the divorce of its parents, and such a child is, therefore, an heir-at-law of its father and as such has an interest in the contest of his father’s will.
    2. Notwithstanding all the defendants have answered to the merits in an action to contest a will, a motion in the nature of a plea in abatement, denying the heirship of plaintiff and his interest in the subject-matter of the suit, is properly determinable before the issue as to, the validity of the will is submitted.

      Marcus Shoup and W. L. Miller, for plaintiff in error.

      M. J. Hartley and C. L. Darlington, contra.
   Kunkle, J.

Plaintiff in error (plaintiff in the lower court) brings an action to contest the will of William M. Wilson.

Plaintiff in error claims that he is the only child and heir at law of said William M. Wilson.

The legatees, devisees and the executor named in the said will are made parties defendant in this case.

Defendants below filed an answer consisting of a general denial of all the facts contained in the petition except as to the death of William M. Wilson; the fact that he left surviving him his wife, De Etta Wilson; that his will has been duly proved as such; that the said De Etta Wilson is his executrix and that the persons named in the petition are devisees and legatees thereunder. ¡I ■ 1

■Subsequent to the filing of said answer, two of the defendants, namely, Nellie Yantlorn Moorehead and Mary YanTIorn Smith Dare, filed a plea in abatement in which they deny that plaintiff in error is a child or heir at law of William M. Wilson, deceased, and further state that the plaintiff in error is not related to said William M. Wilson, and has no interest whatever in the subject-matter of the suit. '

Thereupon the ease came on for hearing upon the said plea-in abatement, and was submitted to the court upon such plea and the evidence.

The trial court found that the plaintiff in’ error was not an heir at law of William M. Wilson, deceased, and had no interest in his estate and had no right to maintain this action.

The plea in abatement was therefore sustained and the petition dismissed.

From such judgment, plaintiff in error prosecutes error to this court.

We have carefully read the record in this case and considered the various authorities cited in the briefs oí counsel. We shall not, however, attempt to discuss either the evidence ox the authorities in detail, but will merely announce the conclusion at which we have arrived after a careful examination of the record and authorities cited.

In brief, however, it appears from the record-that the said William M. Wilson was married to Ida J. Dawes on January 10, 1876, at Rogansport, Indiana; that at the time of said marriage, the said Ida J. Dawes was pregnant and that a child was born to her June 23, 1876, at Cincinnati, Ohio.

The testimony tends to show that Shortly prior to the marriage of the said William M. Wilson and Ida J. Dawes the said Wilson attempted to induce Ida J. Dawes to go to Dayton, Ohio, for the purpose of having an abortion committed, and that her refusal to do so angered the said Wilson; that he did induce her, however, to go to Cincinnati for the same purpose; that she went to the hospital of Dr. Reamy at Cincinnati, where the said Wilson had arranged for her treatment. The record discloses that in the meantime the family of Ida J. Dawes became alarmed and sought put the said William M. Wilson and demanded that he disclose the whereabouts of the said Ida J. Dawes.

It appears that as a result of these efforts, Ida J. Dawes was brought back to Logansport, Indiana, the home of herself and also of the said Wilson.

A family conference was held with the said Wilson, which resulted in his agreeing to marry the said Ida J. Dawes. The mother of Ida J. Dawes insisted upon the marriage for the purpose of, giving the expected child a name. The following appears on page 5 of the record, namely:

“He (meaning the said AVilson) said he would marry her but he would not live with her. He wasn’t going to be disgraced and would not have this thing made public but he would marry her. And my mother said she simply asked for a name for the child. He was willing and brought his license and the minister — an Episcopal minister.”

The marriage ceremony was performed at the home of Ida J. Dawes in the presence of members of her family and John C. Nelson, a friend of the said Wilson, the said Nelson, who testifies in this ease, being invited by Mr. Wilson to accompany him.

Immediately after the marriage, the testator left his said wife and did not subsequently live with her.

Shortly after the marriage of the said parties and before the birth of the said child, the said parties were divorced by the Circuit Court of Cass County, Indiana. The wife secured the divorce and also an allowance for alimony.

In her complaint for divorce she asked for alimony for the support of herself and to pay the expenses of her expected sickness and also asked for the custody of her unborn child.

The court found the facts stated in the complaint to be true; granted the divorce; awarded her alimony and also the custody of the unborn child.

Among other things, it is urged by counsel for plaintiff in error that the trial court erred in hearing and considering the special plea in abatement which was filed by two of the defendants after they had joined with the other defendants in filing an answer to the merits of the case.

Counsel for plaintiff in error concede that their client’s right to maintain an action to contest the will may be properly raised and determined on a motion in the nature of a plea in abatement but they insist that such plea was waived in the case at bar by reason of the fact that all of the defendants filed .an answer to the merits of the case.

In a suit to contest a will, the statute requires that an issue be made up and tried as to whether the paper writing in question is or is not the valid last will and testament of the testator. This, therefore, is the only issue contemplated in the final submission of the case to the jury.

The question of plaintiff’s interest or right to maintain the suit should therefore be made by a special plea and should be tried and determined before the trial upon the issue as to the validity of the will. The answer which was filed in this case is in substance a general denial and is therefore not inconsistent with a plea in abatement for the reason that such plea also denies the allegations of the petition as to the heirship of plaintiff in error.

If the plaintiff in error is not an heir of the decedent, then he has no interest in the subject-matter and can not maintain this action. '

We think the trial court properly heard the case upon the plea in abatement.

Upon the question of the heirship of plaintiff in error, after a careful consideration of the record and especially of the acts and the conduct of the said William M. Wilson, we are of opinion that the evidence establishes the fact that the said William M.Wilson was the father of plaintiff in error and that the marriage in question, under the circumstances, disclosed by the record, was an acknowledgment upon the part of William M. Wilson of the paternity of this child.

Upon the marriage of the said Wilson and Ida J. Dawes, the unborn child became legitimate and was capable of inheriting from the father under the common law.

In the case of Miller v. Anderson, 43 Ohio St., 473, the opinion of Judge Atherton contains a general discussion of the common law rule in respect to the legitimacy of children.

We think this discussion applies to heirship and the right of inheritance, although the issue in that case was limited to proceedings under the bastardy statutes..

Among the authorities discussed by Judge Atherton in the decision above referred to is the case reported in Tioga Co. v. South Creek (Tp.) 75 Pa. St., 453, in which the following language is used:

“That the parents should be permitted to bastardize the child is a proposition which shocks our sense of right and decency and hence the rule of law forbids it. ’ ’

Further mention is also made by Judge Atherton of the following rule, viz:

“This doctrine is recognized in Parker v. Way, 15 N. H., 45; Davis v. Houston, 2 Yeates (Pa.), 289; Page v. Dennison, 1 Grants Cases, 377; S. C., 29 Pa. St., 420, in which case the court in addition hold that: ‘Whether the child is begotten in or out of wedlock, if marriage precedes the birth, the presumption of paternity is the same, and it can only be bastardized by proof of non access. ’ ’ ’

There is also discussed in this decision the case of State v. Romaine, 58 Iowa, 46, 48, wherein the rule is announced that:

“If a woman be pregnant at the time of the marriage and if pregnancy be known to the husband, he should be conclusively presumed to be the father.”

Reference is also made therein to the case of State v. Herman, 35 N. C. (13 Ired.), 502, wherein the Supreme Court of North Carolina holds, that:

“A child born in wedlock, though born within a month or day after marriage, is legitimate by presumption of law and where the mother was visably pregnant at the marriage it is a presumption Juris et de pire that the child was the offspring of the husband.”

Without further citing authorities, we think the rules above announced are well established.

Under the .common law, the child was considered as being in legal existence and capable of inheriting as a legitimate child from the date of the marriage between the natural father .and mother, irrespective of the shortness of the time of the birth of the child after such marriage.

If the unborn child is legitimatized by the act of marriage, then in our opinion the child can not thereafter be bastardized nor rendered illegitimate by any subsequent act of either of its parents.

It is in effect conceded by counsel for defendants in error that if the decree for divorce between the father and mother of this child had been, withheld until after the birth of the said child, that the child would then be legitimate a¡s it would have been born during actual wedlock.

Under the statutes of our state, ias well as at common law, we are of opinion that a decree for divorce between the parties does not effect the status of children. "We think this rule would include children en ventre as well as those actually born.

It appears from the record that the decree for the divorce in question does not undertake to bastardize the unborn child, but recognizes it as a feature of the marriage and fixes its custody.

The law favors the legitimacy of children and it would be a harsh rule which would permit a decree for divorce between the parents to so operate as to bastardize an ^unborn child which would be considered legitimate had the entry of divorce been withheld a day, a week, or for any period of time after the birth of the child.

We think a holding to the effect that a decree for divorce can operate to change the status of an unborn child is contrary to the humane policy of the law.

We 'have considered this case as one arising under the Ohio law for the reason that the law of Indiana, to which reference is made, is not plead nor proven, and the presumption is that the law of the forum controls the rights of the parties. Erie Ry. v. Welsh, 89 Ohio St., 81; Coffinberry v. Blakeslee, 22 C.C.(N.S.), 34 (38 O.C.C., 462); Wettstein v. Bank, 20 C.C.(N.S.), 201, 204 (38 O.O.C., 472, 475.)

Upon a careful consideration of the entire record and the authorities cited, we are forced to the conclusion that the judgment of the trial court is contrary to the evidence. Such judgment will therefore be reversed and the cause remanded for further proceedings.

Judgment reversed.

Allread, J., ,and Ferneding, J., concur..


source: Caselaw Access Project

author: By the Court

license: Public Domain

text:
    EXEMPTION FROM JURY SERVICE.
    Court of Appeals for Franklin County.
    State of Ohio, on the Relation of James O. Cutler and Simeon Nash, v. John B. Miles, as Clerk of the Common Pleas Court of Franklin County.
    Decided, May 17, 1917.

      Constitutional Law — Validity of Amended Section 5211, Relating to Exemption from Military Service.

    Section 5195 of the revised and recodified military laws of, the state (107 O. L., 387), providing that contributing members of the Ohio National Guard shall be exempt from jury service, is not open to the objection which rendered this provision invalid as it stood in its original form (Section 5211, G. C.), nor is it in conflict with any other constitutional provision but is valid and en-forcible.
    Turney, Olds & Sipe and Simeon Nash, for plaintiff.

      Robert P. Duncan, contra.
   By the Court

(Kunkle, Allread and Ferneding, JJi, concurring) .

This case is submitted to this court upon a demurrer to the petition of the plaintiffs.

. The action involves the constitutionality of the provisions of ■Section 5211, General Code, providing that contributing members to the Ohio National Guard shall be exempt from service as jurors.

We have carefully considered the authorities cited in the very exhaustive briefs which have been filed by counsel. We shall not, undertake to discuss in detail these authorities so cited, but will merely announce the conclusion at which we have arrived after a consideration of such authorities. We shall adopt this course for the reason that this case can, and doubtless will, be taken to the Supreme Court where it can be authoritatively reported.

A former act embodying some of the features of the act under consideration was before our Supreme Court in the ease of Eamann v. Heekin, 88 O. S., p. 207, wherein such former act was held unconstitutional.

We have carefully examined the present act in connection with the case above referred to, and are of opinion that the present act does not come within any of the objections made by the Supreme' Court to the former act, nor do we think it conflicts with any provision or limitation of the Constitution.

We appreciate the suggestion of counsel for defendant as to, the wisdom of the exemptions from jury duty provided in this act, but that is a question for consideration by the Legislature rather than by the courts.

Demurrer overruled.


author: Jones (E. H.), J.

text:
    DETERMINATION AS TO COMPARATIVE NEGLIGENCE.
    Court of Appeals for Hamilton County.
    The Cincinnati & Columbus Traction Co. et al v. Murphy, Administrator.

    Decided, February 12, 1914.

      Degree of Negligence and of Freedom from Negligence — Presumption as to Freedom of Both Parties from Negligence — Course of Employment and Scope of Duties — Employee Electrocuted dy Wires Near Machine at which He Had Been Placed for Work.

    1. When the evidence establishes the negligence of an employer, and the circumstances of the death of an employee shows negligence on the part of the deceased, the question of the degree of negligence of each becomes one for the jury under proper instructions' from the court.

      2. Where an employee reported for duty at the usual time, was at the place where during working hours his work for the day was to he performed, and came in contact with the wires which caused his death by electrocution within less than ten feet of the machine upon which he was to work as soon as the foreman finished his breakfast, it can not be said as a matter of law that he was not acting at the time within the scope of his employment. The question is one of fact to be submitted to the jury under proper instructions from the court.
    3. In a suit by an administrator of a deceased employee for damages on account of the alleged negligence of the employer, which negligence it is charged caused such death, the law presumes at the outset of the case that both parties are free from negligence.

      C. B. Matthews and Harry Klein, for plaintiffs in error.

      Daniel W. Murphy and Thomas L. Michie, contra.

      Motion to certify record in this case overruled by the Supreme Court, May, 1914.

   Jones (E. H.), J.

This action was brought in the court of common pleas by defendant in error, Daniel W. Murphy, as administrator of the estate of Otto Smith, deceased, for damages on account of the death of the intestate, caused, as alleged in the petition, by the negligence of the plaintiff in error, the Cincinnati & Columbus Traction Company, of which company the decedent was at the time of his death an employee. He had been called from his usual work as a bridge carpenter in the employ of said company to assist in the repair of the generator of said company at its sub-station at Madeira — a station on the line of said company’s road. The machinery of this sub-station had been burned out during a storm, by reason of which an emergency had arisen requiring an extra number of men to string wires and do other work necessary to restore normal conditions so that the cars could be operated over the road.

The petition alleges that while so employed .at said time and place the plaintiff’s said intestate was electrocuted, and that his death was caused 'by physical contact of both his hands with two wires which the defendant then had at its said station and which were used to charge its generator.

The facts as shown by the evidence are, that the storm which resulted in the damage took place on a certain Saturday evening, and that during the whole of the following day, Sunday, the decedent, together with the other employees called upon, was engaged in stringing wires at the said place; that he worked until the evening of said day; and that he then went to his home and returned on the following morning at about the usual hour of beginning work to resume his labors at said sub-station. His foreman, at the time of or shortly after decedent’s arrival, went to the second floor of the building in which the power machinery was located to eat his breakfast with the family of the station agent, who occupied said floor as his home. The work on the previous day consisted in part in stringing wires from a bos car some little distance away from the sub-station, in which a generator had been temporarily placed, to the machinery in the first floor of this sub-station. These wires were taken into the building at or near one of the windows in the second story and were carried down to the first floor along the wall upon one side of the stairway leading to the rooms above. It was while waiting for the foreman to finish his breakfast that the decedent in some manner came in contact with these wires, and by reason thereof came to his death.

The negligence complained of in the petition is that the defendant company left said wires without any insulation, and unguarded, that the intestate had no knowledge that they were charged with an electric current and no warning was given him of the danger, and that he was not aware nor had he any means of knowing of such danger.

The trial below resulted in a verdict for the plaintiff, defendant in error here, upon which judgment was afterwards rendered, and it is to reverse that judgment that this proceeding in error is prosecuted.

It is contended in the brief for plaintiff in error, first, that the decedent’s death was the result of his own willful and deliberate act; in other words, due solely to his own negligence.

The evidence in the case fully establishes the negligence of the traction company. The evidence shows that when the intestate quit his work on Sunday evening and left fomhis.hpme the current, was not turned on agdc%ese ¿wires, There is some little conflict upon this point, 'but the evidence iñ favor of this view greatly preponderates. In fact, about the only evidence to the contrary is that of Mr. Charles E. Smith, the foreman above referred to, whose testimony is on .page 57 of the bill of exceptions ‘ '

‘ ‘ Question. Can you say whether Otto Smith knew .that those, wires were charged on Monday morning or not?
‘ ‘ Answer. He should have known it; he knew that they would have to be charged to run the road of to run the rotary, and he knew that they were charged on Sunday evening before he left-there, because we started .up the machinery .'before he. left.”

But the same witness (bill of exceptions, page 48) had previously stated:

“Answer. No, sir, there was no current in those wires- on Sunday.”

The negligence of the defendant company having been proven, and granting that-the circumstances of the death showed negligence on the part of decedent, the question of the degree of negligence of each became one for the jury, by the provisions of Section 6245-1, General Code, under proper instructions from the court.

The charge of the court seems to us to contain a full and clear explanation to "the jury of the rule with reference to the' doctrine of comparative negligence. Such being the case, we have no authority to disturb the A'erdict of the jury even though the evidence might tend to show negligence on the part of the plaintiff’s intestate.

Another point urged by counsel for plaintiff in error in argument is that at the time of''the accident the decedent was not acting for the defendant traction company within the course of his employment or the scope of his duties. The evidence bearing upon this point has been summed up- in what was said above -with reference to the time of the accident .and the place where it occurred. The decedent came in contact with the wires which caused his death within less than ten feet of the machine upon Avhieh he was to work as soon as the foreman finished his breakfast. The lips of the decedent having been instantly sealed by death, no one knows or ever will know just why he was upon the stairway at the time, and no satisfactory inference can ibe drawn. He may have been on his way to ask his foreman some question with reference to his work, or it is possible that he expected to rest upon the steps while waiting. In either event we think the jury would be justified in finding that he was acting within the scope of his employment; and plaintiff having shown that decedent had reported for duty at the usual time, and that he was at the place where during working hours his work for the day was to be performed, we think it can not be said as a matter of law that he was not acting, at the time, within the scope of his employment, and was not about his master’s business. The Supreme Court of Ohio, in the case uf Lima Ry. Co. v. Little, 67 Ohio St., 91, has held that this question is one of fact to be submitted to the jury under proper instructions from the court.

The third point urged in the brief, namely, that the jury and court can not guess as to the liability of the defendant, is disposed of by what has been said above; There was ample evidence tending to show negligence on the part of defendant. The law presumes at the outset of the case that both parties are free from negligence, and the plaintiff below as well as the defendant had the benefit of this presumption. There having been evidence of negligence on the part of defendant, and assuming that the jury would be warranted in finding that the plaintiff’s intestate was also negligent, and the relation of master and servant or employer and employee having been shown, the case was one for submission to the jury under the authority of the section of the General Code above referred to.

We find no error in the proceedings in the court below, and believe that substantial justice has been done.

Judgment affirmed.

Jones (Oliver B.), J., concurs. Swing, J., not participating.


author: Jones (Oliver B.), J.

text:
    DISTRIBUTION OF UNDETERMINED PORTIONS UNDER. A WILL.
    Court of Appeals for Hamilton County.
    Broermann, Jr., v. Kessling et al.
    Decided, May 14, 1914.

      Witts-t — Undeter mined Portions of an Estate — Distributed Per Capita for Salce of Equality — Division Among Grandchildren.

    1. As a general rule, where a testator has left undetermined the proportions in which his beneficiaries are to take, .the courts, favoring equality, will direct the distribution to be per capita rather than per stirpes.

    2. A testator devised certain real estate “to the children of Elizabeth Boewer and the children of Marianna Broermann and Frederick Broermann, all said children being my grandchildren, to have and to hold the same for the said grandchildren, their heirs and assigns forever.” On the death of the wife of the testator, who was given a life estate in the real estate in question, there were, surviving her, two children of Elizabeth Boewer and twelve children of Marianna Broermann and Frederick Broermann. Held: That each of the fourteen grandchildren takes an undivided one-fourteenth of the real estate in question.

      Wm. Jerome Kuertz, for plaintiff.

      Badger & Ulrey, C. A. Leach, William J. Creed, Fred P. Muhlhauser and Samuel B. Hammel, contra.
   Jones (Oliver B.), J.

This is an action for partition, heard on appeal from the court of common pleas. It is sought to partition real estate devised under clause 1 of item 3 of the will of John B. Cook, deceased. The only question in the ease is whether the devisees named in that clause take per capita or per stirpes.

After first giving a life estate in all of his real estate to his wife by item 3 of his will, he disposes of it after her death by separate clauses in the same item, devising different parcels of real estate to different relatives. The language in clause 1 is as follows:

“I give and dévise to the children of Elizabeth Boewer, and the children of Marianna Broermann and Frederick Broermann, all said children being my grandchildren, the following real estate, to-wit: [here follows description of property] to have and to hold the same for the said grandchildren, their heirs and assigns forever.”

The widow, Mary E. Cook, died in January, 1913, two children of Elizabeth Boewer and twelve children of Marianna Broermann and Frederick Broermann surviving her. The question is whether the Boewer children each take one-fourth of this property and the Broermann each one twenty-fourth, or whether each of the fourteen children take one-fourteenth.

No provision was made in the will for testator’s daughters, Elizabeth Boewer and Marianna Broermann, and the latter at least is still surviving, and as stated at the trial both were in life at the time of the making of the will .and probably at the death of the testator.

As a general rule, where the testator has left undetermined the. proportions in which his beneficiaries are to take, the courts, favoring equality, will direct the distribution to be per capita rather than per stirpes. Thus where a devise is to the children of several persons, whether it be to the children of A and B, or to the children of A .and the children of B, they take per capita and not per stirpes. Beach on Wills, 504, Section 304, and 2 Jarman on Wills (6th Ed., Bigelow), 204 (1050).

Where all the persons entitled to share stand in the same degree of kin to the decedent, as, for instance, all grandchildren, and claim directly from him in their own right, and not through some intermediate relation, they take per capita. 1 Schouler on Wills (5th Ed.), Section 538.

Wherever as a class the beneficiaries are individually named, or are designated by their relationship to some ancestor living at the date of a will, whether to the testator or some one else, they share per capita and not per stirpes, and especially if they are all of the same degree. 1 Schouler on Wills (5th Ed.), Section 540, and Page on Wills, Section 558, page 648.

In Hill, Admr., v. Bowers, 120 Mass., 135, Chief Justice Gray, in the opinion of the court, says at page 136 :

“The general rule is that by a bequest to the children of A and to the children of B, the children take per capita and not per stirpes, in the absence of words indicating a different intention. There are no such words in this will. ’ ’

In the case at bar we fail to see any words indicating any intention different from the general rule as .above stated. The language of the will reduces the beneficiaries to a single class, that that of grandchildren, in the words “all said children being my grandchildren,” and also, after description of the property, by repetition, in the use of the words “to have and to hold the same for the said grandchildren their heirs and assigns forever.” While these grandchildren are designated not by individual names, but by the fact of their parentage, they take nothing under a devise from the parent or as representatives of the parent; they take directly as grandchildren of the testator, and, being all of the same class, the general rule must apply and they must take equally or under the per capita, rule.

In 40 Cyc., 1490, the following language is used:

“As a general rule the devisees or legatees of a will will if possible be construed to take per capita rather than per stirpes, unless the will shows a contrary intention on the part of the testator, as where the beneficiaries are to take substitutionally; and in ease of doubt the statutes of descent and distribution should be followed as nearly as possible.”

If it were necessary under this rule to refer to our statutes, a reading of Sections 8580 to 8583, inclusive, General Code, would convince us that if the parents of these grandchildren were his only children and had predeceased their grandfather, then these grandchildren 'being of the same class would under the terms of Section 8581 take by inheritance equal shares. Thus we see that the per capita rule would accord with the statutes of Ohio.

It is, however, argued properly that the entire will must be read in order to put a proper construction upon any ambiguous clause, and it is urged by counsel.for the Boewers that the other three clauses in item 3 indicate an intention on the part of the testator to divide the estate equally among the original children or their representatives. The fact that Mrs. Broermann, if not Mrs. Boewer also, are still living and take nothing under the will negatives any such argument. McIntire v. McIntire, 192 U. S., 116, and Blackler v. Webb, 2 P. Wms., 383.

The argument that clauses 2, 3 and 4 indicate a purpose on the part of testator to equalize the division of his property among the representatives of his eight children is not borne out by a consideration of those clauses. The second clause gives a piece of real estate to his sons George and Bernard, and the fourth clause gives two pieces of real estate and certain chattel property to two other sons, Louis and William, and the third clause gives to two grandchildren, each being a daughter of a deceased daughter of the testator, another piece of real estate and certain street railway stock. There is nothing in the record to show that these parcels of real estate are of equal value. The usual presumption would be that they are not of equal value. The testator, however, desired to so divide his property, and we are not at liberty to speculate upon his reasons for so doing; but the fact that he did so does not in any way aid us in the construction of the language employed in the first clause of the same item. It happens that Marie Catherine Funk and Louisa Eberling, the two deceased daughters named in item 3, clause 3, each had a single child surviving the life tenant, and that neither of said children being mentioned by name in said item each would take one-half; but that can not be used as an argument that they take by representation.

Two of the eases cited by counsel for the Boewers which uphold a division-per stirpes, to-wit, Bool et al v. Mix, 17 Wend., 119, and Houghton v. Kendall et al, 7 Allen (89 Mass.), 72, 77, are cases where an estate for life was given to the child, with the remainder over to the grandchildren, in such a way as to show an intention on the part of the testator to have the grandchildren take as representatives of their respective parents. But in all of the remaining eases cited by counsel, without exception, there have been kinsmen in different degrees of consanguinity, which would require those of the more remote relationship to take as representatives of their parents who would have ¡been in the same class.

These cases therefore can not control the court in the construction of the case at bar where all of the beneficiaries are grandchildren who take directly as such and not in the right of their respective parents.

A decree will therefore be entered finding that each of the' fourteen grandchildren who are parties to the proceeding is entitled to an undivided one-fourteenth of the real estate described in the petition, and partition had accordingly.

Judgment accordingly.

Swing, J., and Jones (E. H.), J., concur.


author: Houck, J.

text:
    REVERSALS ON WEIGHT OF THE EVIDENCE.
    Court of Appeals for Muskingum County.
    McDonald & Frazier v. Herb Schervish.

    Decided, May 5, 1918.

      Reviewing Coivrt — Not at Liberty to Reverse a Second Time on Weight of the Evidence — Notwithstanding Adherence to the Correctness of Its Former Action — Not Error to Refuse to Give Special Instructions to the Jury, When.

    1. A reviewing court is without authority to reverse a second time on the weight of the evidence a judgment against the same party and based on the same evidence, notwithstanding the court adheres to its former opinion that the judgment is one which ought to be reversed.
    2. It is not error for a trial judge to decline to submit to the jury special written propositions of law upon request of counsel after argument to the jury, where the law necessary for determination of the issues involved has been given in clear, plain and unambigious language applicable to the case as made by the proof.

      E. R. Meyer and A. A. George, for plaintiff in error.

      John C. Bassett, contra.

      For previous opinion in this case, see 26 C.C. (N.S.), 394.

   Houck, J.

The case now before us for judicial determination is one in error and coinés from the Common Pleas Court of Muskingum County. The parties here stand in this court in the same relation to each other as in the court below.

The suit of plaintiff was based on a promissory note on which it claimed judgment for $152 with interest at six per cent, from April 9, 1914. The petition set forth that said note was executed by the defendant, payable to McDonald & Wagner, and bore the date of February 9, 1914, falling due in two months with interest at six per cent, after maturity; and that plaintiff was the successor of the firm of McDonald & Wagner and was, at the time of filing suit, the owner and holder of said note and entitled to recover on same.

The answer of defendant set up the following defenses:

1. That there was no consideration for the note.

2. That the note was given without interest until after due, which was done for the purpose of inducing the defendant to take an insurance policy on his life, for which the note in question was given in settlement of the first year’s premium.

3. That the defendant was induced to take said insurance’ by reason of certain false and fraudulent statements made to him by McDonald & Wagner, namely, that said policy, at its maturity, which was twenty years, would yield in cash about $5,000, providing the annual premiums were paid as provided in the policy; that said representations and statements were false and known to be so by the original payees at the time they were made and at the time of the execution and delivery of said note.

Plaintiff filed a reply to the answer, being, in effect, a general denial of all the material averments in the answer.

Trial was had to a jury and a verdict returned for the defendant. The usual motion for a new trial was filed and overruled by the court and judgment entered accordingly. The errors complained of, and for which a reversal of the judgment is sought, are two:

1. That the verdict and judgment are against the manifest weight of the evidence.

2. That the trial judge erred in his refusal to submit to the jury, after counsel had argued the case to the jury, certain written propositions of law, as requested on the part of plaintiff.

As to the first alleged error, we will state that this is the second time this case has been before us for review.* The first time we reversed it for the reason that the verdict of the jury was clearly against the manifest weight of the evidence.

We have made a careful examination of the record now before us and find that the verdict of the jury was based upon the same evidence and proven facts as the verdict in the former ease, and if we were not precluded, by the statute, from so doing, and the decisions of our courts thereon, we would reverse it a second time for the same reason as in the first instance.

Section 11577, General Codé, reads:

“The same court shall not grant more than one new trial on the weight of the evidence against the same party in the same ease, nor shall the same court grant more than one judgment of reversal on the weight of the evidence against the same party in the same ease.”

This court as now constituted has passed upon this question ,and construed the above statute in the case of Fruit Dispatch Co. v. Lisey & Co., 22 C.C.(N.S.), page 7. The Supreme Court of our state has also passed upon the same question and construed this statute, as appears in Vol. 93 O. S., page 61, Mahoning Valley Ry. Co. v. Santoro, Admr., where the court say:

“The sole and exclusive purpose of Section 11577, General Code, is to limit the number of reversals on the weight of the evidence by the same reviewing court. By the Constitution, it is said three must concur before you can reverse on the weight of the evidence. By the statute, it is provided that you can thus reverse on the weight of the evidence but once. In this view of the case, the constitutional provision and the statutory section are not only fairly reconcilable by a fair course of reasoning, but, on the contrary, there is no semblance of conflict or repugnancy between them.”

It is apparent from what we have already said, that by statutory enactment and judicial decision the same court shall grant no more than one new trial on the weight of the evidence against the same party, and but one judgment of reversal on the weight of the evidence against the same party in the same case. It therefore follows that we are wholly without authority of law to reverse the judgment in the present case upon the ground that it is against the manifest weight of the evidence.

Coming now to a discussion of the second ground of alleged error, we think the rule is well settled that all of the parties to a lawsuit are entitled to have the law, necessary for a proper, determination of the issues presented, given to the jury in clear, plain, and unambiguous language applicable to the case made by the proofs. And where the trial judge fully complies with this rule in his general charge to the jury, it is not error to refuse to give, after argument of counsel, special charges, if -.the substance of such charges is given in the court’s general charge.

From our examination of the general charge of the trial judge, in the case at bar, we are convinced that he fully and completely submitted to the jury every proposition of law essential to the case, as raised by the pleadings and facts, necessary for a correct and proper determination of the rights of the parties to the case under review.

Further discussion of the errors complained of seems unnecessary. The record presents no errors prejudicial to the rights of plaintiff in error, and for that reason the judgment below is affirmed.

Powell, J., and Shields, J., concur.


author: Ferneding, J.

text:
    DISCRETION IN THE MATTER OF TUBERCULOSIS HOSPITALS.
    Court of Appeals for Montgomery* County.
    State, ex rel Woolery et al, v. Brenner et al.

    Decided, June 20, 1916.

      Constitutional Law — Validity of the Tuberculosis Hospital Act — Joint Board Not Subject to Control by the Courts — Appropriation—Owner of Lands About to be Tahen May Enjoin Proceedings, When.

    1. The district tuberculosis hospital act is constitutional.
    2. The joint board created by such act is invested with a discretion which can not be controlled by the courts, at least in the absence of fraud or gross abuse of discretion.
    3. The location and construction of a tuberculosis hospital building does not constitute a nuisance per se.

    4. An owner whose lands are about to be taken for any public purpose, without such owner being made a party to the condemnation proceedings and without compensation first being made, is entitled to have relief by way of injunction to protect his property.

      J. A. Kerr and J. A. Sharts, for plaintiffs.

      D. W. Iddings, Robert C. Patterson, P. A. Saylor and Robert R. Nevin, contra.

      Judgment affirmed on the authority of Drissel v. State, 87 Ohio State, 154.

   Ferneding, J.

This case is presented on demurrer to the second amended petition. The case involves important questions which have been thoroughly and ably argued by counsel on both sides. Some questions have been presented involving procedure, but we have gone to the merits of the case as presented by the petition.

We do not consider it necessary to go into detail, but will content ourselves with merely announcing our conclusions upon the controlling questions of the case.

In respect to the constitutionality of the law, we feel bound by the decision of the Supreme Court in the case of Brissel et al v. State, ex rel, 87 Ohio St., 154, and other cases which the Supreme Court has had occasion to consider .and in which it has been held that the Tuberculosis Hospital Act is constitutional.

The counsel for plaintiffs refer to the exemption of municipalities containing a tuberculosis hospital, but we think that even if this question was not in the former cases presented to the Supreme Court, there would be .a sufficient reason for the exemption of municipalities which had already provided a tuberculosis hospital. Whether tuberculosis patients of a municipality could find their way, by the process described in argument, through the county infirmary into the district hospital, we are not called upon to express an opinion at this time.

In any event, as we are advised, this provision exempting municipalities having a tuberculosis hospital was introduced by amendment passed April 17, 1913 (103 O. L., 492, 494), and if that feature is unconstitutional, it would go to the validity of the amendment rather than to the validity of the entire act.

We therefore hold that the act, so far as involved in the present case, is constitutional.

We are also of opinion that the joint county board is invested with a discretion which can not be controlled by the courts, at least in the absence of fraud or gross abuse of discretion, and we do not consider that the facts stated in the second amended petition are such as to constitute either fraud or gross abuse of discretion.

The statutes have expressly authorized the location and construction of tuberculosis hospitals, and we do not think that we are justified, even under the averments of the second amended petition, in holding that the location and construction of the hospital building constitute a nuisance per se. The nuisance, if any, contemplated by the second .amended petition, must be held to be one growing out of the operation of the hospital and the question is, therefore, premature at this time. If the hospital should be operated in the manner shown by the averments of the petition, it would be ample time for a court to enjoin when, such careless and negligent operation of the hospital should be demonstrated.

In respect to the contention that there is no money in the treasury available for the purchase of the property, we think this is insufficient for two reasons: First, the petition does not show that there is any money in process of collection, and, second, the statute would .apply at the time when the joint board condemned the property and is about to expend the county funds for the purpose of paying the purchase price. The property can not be taken until the compensation is actually paid.

There are other objections, made in the first and second causes of action, to the condemnation of the property and the location .and construction of the tuberculosis hospital, but we think none of these are sufficient to sustain an injunction.

The third cause of action seeks to prevent the joint board of trustees from appropriating certain real estate, in which the plaintiff has an interest, for a right-of-way and easement, without making or allowing plaintiffs to be made partiess to the condemnation ease and without first making compensation therefor.

Counsel for defendants claim the fact to be that both Woolery and Ratcliff are made parties defendant in the condemnation case; but we are bound by the .averments of the petition. While the plaintiff Woolery does not very clearly assert that he and Ratcliff were not parties, yet the inference to that effect from the petition is sufficiently clear.

The petition avers that the right-of-way in controversy “Is sought to be appropriated by said condemnation proceedings without making or .allowing this plaintiff or said Alonzo Ratcliff to be made parties thereto.”

There is a further averment that:

“Plaintiff has heretofore applied to said court of common pleas to have Alonzo Ratcliff made a party to the condemnation proceedings and said court overruled said motion and refused to allow plaintiff to plead therein.”

We think the necessary inference from these averments is that neither the plaintiff nor said Alonzo Ratcliff is a party to the condemnation proceedings. The case is, therefore, according to the petition, one in which the joint board of trustees are about to appropriate a certain right-of-way over the lands of the plaintiff, without his being made party to the condemnation proceedings and without first making compensation to plaintiff for his interests in the property about to be taken.

We think it is familiar law that an owner whose lands are about to be taken for any public purpose, without such owner being made a party to the condemnation proceedings and without compensation first being made, is entitled to have relief by way of injunction to protect his property.

It therefore follows that the demurrer to the first and second causes of action should be sustained and to the third cause of action overruled.

Decree ,accordingly.

Kunkle, J., and Allread, J., concur.


text:
    LIABILITY FOR. COST OF CHANGING LOCATION OF A GAS MAIN.
    Court of Appeals for Hamilton County.
    The Cincinnati, New Orleans & Texas Pacific Railway Co. v. The Union Gas & Electric Co.
    Decided, March 6, 1916.

      Grade of Street Changed After Vacation — Necessitating Relocation of Gas Main — Abutting Owner Not Liable for Expenses of Change.

    When a city street in which a gas main has been placed with the consent of the city is vacated by order of court at .the petition of the owner of all the abutting real estate, upon the condition that such owner will at all times permit the company owning the gas main to enter upon the vacated street for the purpose of laying, keeping in repair, changing or removing its main, and such owner thereafter finds it necessary to change the grade of the vacated street, the owner is not liable to the company owning the gas main for the cost of changing the location of the main to conform to the new grade.

      Harmon, Colston, Goldsmith & Hoadly, for plaintiff in error.

      Miller Outcalt, contra.
   Jones (E. H.), J.

This action was 'brought by the Union Gas & Electric Company to recover from the Cincinnati, New Orleans & Texas Pacific Railway Company the sum of $2,169.12 expended by it (the gas company), in lowering or changing the location of its large gas main in the yards of the railway company.

Prior to May 18, 1892, there was a street in Cincinnati known as Dalton avenue; and in the year 1894 the gas company, with the consent of said city, laid a 24-inch gas main in that street. On May 18, 1892, plaintiff in error, being the owner by virtue of perpetual leases with privilege of purchase of all the property abutting on both sides of Dalton avenue between Hopkins and Kenner streets, filed a petition in the court of common pleas for the vacation of Dalton avenue between Hopkins and Kenner streets. The prayer of the petition was granted by said court on November 26, 1902. The court, as a condition upon which the order of vacation would be made, required the plaintiff in error to agree that it would ‘ ‘ at all times permit the Cincinnati G-as Light & Coke Company, its successors and .assigns, to enter upon the said vacated street or vacated parts of streets for the purpose of laying, keeping in repair, changing or removing its system of gas mains and pipes, in the streets or parts of streets vacated.”

In the year 1903 the plaintiff in error graded that part of Dalton avenue which had been vacated, and laid tracks across it. These tracks were laid in close proximity to the top of the gas main above described. In fact, the rails of one of the tracks were resting on said main. This condition so remained until August, 1910|, when defendant in error made discovery thereof and made a demand on the plaintiff in error to change the location of the pipes. This the plaintiff in error refused to do; and the gas company then did the work it deemed necessary and demanded that the railway company pay the expenses thereof. This was refused, and this suit was filed in the court below on February 15, 1912, to recover the expenses of doing that work.

There were two defenses set out in the answer, the first admitting certain allegations of the petition, and then making general denial of the remaining .allegations; the second setting up the four-years statute of limitations.

Prior to the vacation of this portion of Dalton avenue, while it was still under the control of the city, there could have been no' question about the right of the city to change the grade of the avenue, and, likewise, no question but that the gas company would have had to bear all expenses of removing, lowering or raising its pipes, made necessary by such change in the grade of the street. See Columbus Gas Light & Coke Co. v. Columbus, 50 Ohio St., 65. We quote from proposition 2 of the syllabus:

“A gas company laying its pipes in the streets of the city, under a grant from the city, in conformity with an established grade¿ does so subject to the right of the city to change the grade of the street whenever the necessities of the public require it, and, in the absence of wantonness or negligence on the part of the city, the company can not maintain an action for damages occasioned by the necessity of taking up and relaying its pipes in order to accommodate them to the new grade.”

It follows that had the grade of Dalton avenue been charged by the city of Cincinnati before the decree for vacation, the gas company would have been compelled to change the location of its pipes and to bear the expense thereof.

By the terms of the court’s decree vacating the avenue the right to maintain the pipe therein is made secure; without such provision in the entry, said right would have then terminated. The manifest purpose of the court was to protect as f.ar as possible such rights as the gas company then had. It was powerless to do more. There was no attempt on the part of the court to enlarge the rights of the gas company, and it is not claimed that any additional right followed the decree or inured to defendant in error under favor of statutory provision or by operation of law. The railway company being the owner of all the property abutting on both sides of .the vacated street became the owner and was entitled to the possession of the part vacated, with the right to use for yard purposes in the same manner and as completely as it could use its contiguous property, subject only to the rights of the gas company as they then and theretofore existed.

No question enters this case as to the necessity or reasonableness of the grading done by the railway company. The presumption to which it is entitled — that its plans were - adopted in good faith and the work carefully done — has not been .assailed in any way.

Neither is there any question in this case but that the gas company was justified in looking upon the proximity of the rails to its pipe, and the operation of locomotives and cars over same, as a menace to its business, its patrons and the public. But this condition was brought about by reason of a necessary change of grade, and a rightful, lawful use of its property by plaintiff in error, and we know of no rule of law that would compel the railway company, in the absence of an agreement, to bear the expense incurred in changing the location of the pipe.

The question of the statute of limitations is discussed in the briefs. It is claimed by the railway company that this action accrued in 1903 when the track was laid, which if true would be a bar. The gas company claims that the operation of the cars over the tracks as laid constituted a continuing trespass and that the statute did not begin to run until the change was made in the location of the pipe and the cost of same ascertained and paid.

Having found that no cause of action ever arose, we do not deem it necessary to determine this question. From such consideration as we have given the matter we are inclined to think that the action is barred.

For the reasons stated the judgment of the court below is reversed, and the judgment which that court should have rendered will be entered here.

Judgment reversed, and judgment for plaintiff in error.

Jones (Oliver B.), J., and Gorman, J., concur.


text:
    TECHNICAL PRECISION NOT REQUIRED OF COUNTY COMMISSIONERS.
    Court of Appeals for Butler County.
    State, ex rel Landis, v. Board of Commissioners of Butler County et al.

    Decided, March 13, 1916.

      County Commissioners — Legitimate Discretion of, Will Not he Interfered with hy the Courts — Clerk of a Board of County Commissioners Not a County Officer.

    1. In construing the records of county commissioners, acting within the scope of their authority, to ascertain whether or not they have followed certain statutory requirements, technical precision will not be required. It will be sufficient if it appear, though informally, from a reasonable construction of the whole transcript of the proceedings, that these requirements have been observed.
    2. It is not a proper exercise of the judicial powers of a court to interfere by injunction with the legitimate discretion of county commissioners, so long as that discretion is being honestly exercised by them in good faith within the limts of the powers conferred by statute.
    3. The duties of the clerk of the county commissioners, appointed under the provisions of Section 2409, General Code, are purely clerical in their nature, and not of a character that would require independent official action such as would constitute the clerk a county officer under the provisions of the Constitution of Ohio.

      Andrews & Andrews, for plaintiff.

      Ben. A. Bickley, Prosecuting Attorney, and W. C. Shepherd, contra.

       Affirmed by the Supreme Court, State, ex rel Landis, v. Commissioners of Butler County et al, 95 Ohio State, 157.

   Jones (Oliver B.), J.

This is a tax-payer’s suit to enjoin the board of county-commissioners from employing William W. Crawford as clerk of such board, and from the payment of any money. to him for salary under such employment, and to order the return and restoration to the auditor’s office of the books .and’ records of the board-of county commissioners.

The relator, Samuel C. Landis, states in his supplemental petition and the amendment thereto the following reasons why such employment and expenditure of money would be unlawful:

“1. That it is not necessary for the clerk of said board to devote his entire time to the discharge of the duties of such position. ■
“2. That said board of county commissioners did not by said resolution resolve that it was necessary for the clerk to devote his entire time to the discharge of the duties of such position. ■
“3. It does not require .more than a few hours per week to perform the duties as clerk of said board.
“4. To carry out said contract would require the expenditure of $1,500 per annum of the public money for services which can be easily performed by the auditor of said county without .any cost to the county.
“5. That said services as clerk of said board have always heretofore for many years been performed by the auditor of said county without any cost to the county, and there is no reason why the same can not hereafter be so performed.
“6. Said board of county commissioners did not investigate the facts, and did not sit as a board of inquiry on the facts and on the necessity for the employment of said clerk.
“7. Said board of county commissioners did,not find it was necessary for the employment of such clerk,- and made no finding whatever on- the subject. - , - •
“8. That said board of county commissioners did not find that it was necessary for the clerk to devote his entire time to the duties of his position.
“That the statute under which said commissioners made such appointment of said clerk is unconstitutional.”

Provision is made in Section 2566, General Code, that the county auditor shall be the secretary of the county commissioners. Said section is as follows:

“By virtue of his office, the county auditor shall be the secretary of the county commissioners, except as otherwise provided by law. When so-requested, he shall .aid them in the performance of their duties. He shall keep an accurate record of their proceedings, and carefully preserve all documents, books, records, maps and papers required to be deposited and kept in his office.”

'This' same section was formerly Section 10 of the act prescribing the duties of county auditors, passed April 4, 1859 (56 O. L., 128; 1 S. & C., 97). In this original form it reads as follows:

‘ ‘ The county auditor shall by virtue of his office, be clerk to the board-of county commissioners of his county, and shall keep an accurate record of their corporate proceedings, and shall carefully preserve all the documents, books, records, maps, and other papers, required to be deposited or kept in his office.”

Authority is given the commissioners to appoint a clerk under Section 2409, General Code, which is as follows:

- “If such board finds it necessary for the clerk to devote his entire time to the discharge of the duties of such position, it may appoint a .clerk in place Of the county auditor and such necessary assistants to such clerk as the board deems necessary. Such clerk .hall perform the duties required by law and by the board.”

Certain duties are prescribed by statute for the clerk, some of them being set out in Sections 2406, 2407, 2522 and 2531, General Code.

The resolution under which the employment objected to was made was adopted by the board of county commissioners at its meeting September 20, 1915, by a vote of two yeas and one no. The vote not being unanimous, under the provision of .Section 2414, General Code, the resolution - was again- voted on at the meeting of October 16, 1915, at which time the following resolution was adopted by the yea vote of each of the three commissioners: • 'i! ji

“Resolved, by the Board of County Commissioners of Butler County, -Ohio, That the resolution adopted-by this board September 20, 1915, be amended to read as follows:
“That; Whereas, The Board of County Commissioners of Butler County,' Ohio, deems it necessary to have a clerk who can devote his entire time to the discharge of the duties of such position,
“Therefore, Be it Resolved, by the Board of County Commissioners of Butler County, Ohio, that commencing October 18, 1915, W. W. Crawford be and is hereby employed as clerk of this board at a salary of $125 per month, payable monthly. Such clerk shall perform the duties required by law and the board.”

It is contended by relator that the board of county commissioners did not by this resolution, or by any other action, find that it was necessary for the clerk to devote his entire time to the discharge of such position, and counsel argue that without such finding no power exists under the law for the appointment of a clerk.

The criticism made by counsel for relator is well taken in that the language employed in the preamble of the resolution as passed is not in its effect the same as the finding required under Section 2409 before an appointment of clerk can be made. In other words, it is not the same “to have a clerk who can devote his entire time” as it is “for the clerk to devote his entire time. ’ ’

It is further insisted by counsel that the record itself must show that the board upon full consideration, and possibly on hearing evidence, or ,at least after considerable experience had by each member in the performance of his official duty, must make an official finding of the necessity for the clerk to devote his entire time to the discharge of the duties of the position before any appointment can be made.

It is insisted that the word “finds” has a technical meaning which requires personal experience, or something equivalent to the hearing of evidence .and a judicial consideration of the necessity, and the arrival at a judgment or judicial decision in the matter; and that the word ‘ ‘ deems, ’ ’ which is used in the commissioners’ resolution and found in Sections 2410, 2411 and 2412, means somthing different from the word “finds” as used in Section 2409. Counsel have submitted dictionary definitions of these two words, one of the definitions given for "deem” being "to hold in * * * opinion; decide as a conclusion; consider, regard, believe”; among those for "find,” "to discover through the perceptions or feelings; learn by experience; perceive; ascertain. To decide after judicial investigation.” It will be seen, therefore, that there is no substantial difference in the meaning of the two terms as used in the section referred to, and that what was necessary for the board of commissioners, in order to act under Section 2409, was to become convinced after proper inquiry and consideration in good faith that the necessity existed for the employment of such clerk.

The rule for the construction of the records of inferior tribunals such as county commissioners has been laid down in the first paragraph of the syllabus of Lewis et al v. Laylin et al, 46 Ohio St., 663, as follows:

‘ ‘ In construing the records of inferior tribunals, acting within the scope of their authority, to ascertain whether or not they have followed certain statutory requirements, technical precision will not be required; it will be sufficient if it appear, though informally, from a reasonable construction of the whole transcript of the proceedings, that these requisites have been observed. ’ ’

With this rule in mind, a fair construction of the resolution as adopted, taken in connection with the evidence set out in the record, convinces the court that the members of the board of commissioners did fairly consider the necessity for a clerk to devote his entire time to the discharge of the duties of the position, and that their intention in the passage of the resolution was to record such finding. There is evidence to show that one member of the board had served in that capacity at least one year, and the other two members had by personal inquiry and observation informed themselves in regard to their duties in this matter. There seems to be no more reason why members should be required to have months of experience, to pass upon a question such as this, than that similar experience should be required to exercise other official duties devolving upon them. '

The evidence shows that there is, as might be supposed, a difference of opinion as to the necessity and wisdom of the employment of such a clerk. It discloses, however, that there is sufficient work to occupy the entire time of a clerk for the benefit of the county, whether that clerk be one employed directly by the board, or the county .auditor in person, or one of his deputies; and, while the auditor himself would receive no additional compensation by reason of his duties as such clerk, if he performed that service, it is shown by the evidence that in practice it has been customary while he was the secretary of the board for the actual work to be done by one or more of his deputies, so that in any event the cost of the work would be paid from the public treasury.

In this case there is no charge made of fraud or bad faith upon the part of the commissioners. The most that can be claimed for the petition is a charge of abuse of discretion or mistaken judgment on their part. Relator practically asks the court to substitute its judgment and official discretion, as to the necessity for this employment and expenditure for that of the commissioners.

No matter what the personal view of the judges composing this court might be, it would not be a proper exercise of the judicial powers of the court to interfere by injunction with the legitimate discretion of the county commissioners so long as that discretion is being honestly exercised by them in good faith within the limits of the powers conferred by statute. Mechem on Public Officers, Sections 990, 991.

No such .abuse of discretion or lack of good faith appears in the record as would require interference by the court.

It is contended, however, that Section 2409, General Code, is unconstitutional, inasmuch as the duties imposed by law upon the clerk of the county commissioners are of such a nature that he is necessarily a county officer. Numerous cases are cited in the briefs of counsel as to the difference between an officer and an employee. A careful consideration of the duties of this clerk, as set out in the statutes, shows that they are purely clerical in their nature, and not of a character that would require independent official action such as would constitute the clerk a county officer under the provisions of the Constitution.

In Kloeb, Auditor, v. Mercer County Commissioners, 4 C.C. (N.S.), 565, it was held that the county auditor is a public officer, and that he is in no respect a mere clerk of the board of county .commissioners, thus making the plain inference that such clerk is not an officer.

That part of old Section 845, Revised Statutes, which provided for legal counsel, was held unconstitutional in State, ex rel Cline, v. Cannon et al, 12 C.C.(N.S.), 103, and in Ireton et al v. State, ex rel Hunt., Id., 202, for the reason that official discretion was attempted to be vested in legal counsel, mere appointees of the commissioners, who were thus, as to all civil matters, given the full authority conferred by law upon prosecuting attorneys. There are numerous cases in Ohio illustrating the .difference between ,an officer and an employee, which it is not necessary to review. Among the many citations given by counsel are 29 Cyc., 1361; State, ex rel Armstrong, v. Halliday, Auditor, 61 Ohio St., 171; State, ex rel, v. Brennan, 49 Ohio St., 33, and State, ex rel Atty. Genl., v. Jennings et al, 57 Ohio St., 415.

In our opinion Section 2409 is constitutional.

The only other matter to be considered is as to the custody of the records of the county commissioners.

Section 2405, General Code, provides that the meetings of the board shall be “at the office of the auditor, or the usual office of the commissioners,” and Section 2407, General Code, provides that “When the board is not in session, the record book shall be kept in the auditor’s office, and open at all times to public inspection. ’ ’ A careful examination of the numerous laws in regard to the meetings of the county commissioners, and the experience of the different counties in the state, would indicate that at least in the smaller counties the auditor’s office is the office used by the commissioners. The statute requires that the commissioners shall furnish an office for the auditor. In many counties there are several rooms provided. In Hamilton county, we are informed, all of the rooms that are occupied by the commissioners for the board meetings, and for the engineer’s offices and road records, all of which are apart from those of the auditor, are designated by resolution on the minutes as part of the auditor’s office, so that a literal compliance may be had with the statute.

In the opinion of the court these statutes are at best directory. The purpose of the law is that the records should be safely'kept, and that they should be accessible to the public as public records open for inspection at reasonable times. There is nothing in the record of this case to show that the spirit of- the law has been violated in that respect, and, if it should be deemed necessary, in order to comply literally with the statute, it is a simple matter for. the commissioners to designate as a part of the auditor’s office the rooms in which they may find it necessary to have their records stored. When the commissioners’ office is open at the same hours as the auditor’s office, with a clerk present to answer questions and furnish information, and opportunity afforded any tax-payer who may desire to inspect the minutes and other records, it would appear to be entirely unnecessary for him to carry the books from the commissioners’ room to the auditor’s room and place the burden upon the auditor or one of his clerks or deputies to care for them and furnish information in regard to them.

The record fails to show any reason why this court should intervene by injunction to interfere with the proper custody of its records by a board -of county commissioners.

The petition will therefore be dismissed a± the costs of the relator.

Jones (E. H.), J., and Gorman, J., concur.


author: Kunkle, J.

text:
    GIST OF THE OFFENSE WHERE SALES ARE MADE CONTRARY TO THE PURE FOOD LAW.
    Court of Appeals for Shelby County.
    Charles J. Yunker v. State of Ohio.
    Decided, December 15, 1917.

      Pure Pood Law — Prosecution for Violation of — Granting of Application to Take Depositions Within Discretion of the Court — Illegal Sale, Not Identity of Purchaser, Constitutes the Offense.

    1. Discretion to grant a commission to take depositions in a criminal prosecution, is reposed in the trial court, and unless it clearly appears of record that the trial court abused its discretion in refusing an application for such commission a reviewing court will not reverse the order below.
    2. An application for a commission to take depositions in criminal prosecutions is limited by Section 13668, G. C., to issues of fact joined upon indictment, and a justice of the peace in a prosecution for violation of the pure food laws, and not instituted upon indictment, properly overrules such application.
    3. The gist of the offense in a prosecution for selling improperly labeled imitation extracts is the illegal sale, -and the identity of the purchaser is not an essential element of the offense.

      Charles C. Hall, for plaintiff in error.

      Joseph McGhee, Attorney-General of Ohio, and S. L. Connors, contra.
   Kunkle, J.

Plaintiff in error was charged, tried and convicted before C. R. Hess, justice of the peace of Clinton township, Shelby county, Ohio, with selling to Stanley. Bryan- a certain quantity of an imitation vanilla extract for which no standard exists, and which was not labeled “artificial” or “imitation” and the formula printed in the manner provided for the labeling of “compounds” or “mixtures” and their formula, in this, to-wit: The word “ artificial ” and the formula were not printed upon the package as required by law.

Error was prosecuted from the judgment of said justice of the peace to the court of common pleas and the judgment of the justice of the peace was affirmed.

Error is now prosecuted to this court from the judgment of the court of common pleas affirming the judgment of the justice of the peace.

Various errors are assigned in the petition- in error but the ones which are chiefly relied upon are:

■ (1). That the trial court erred in refusing to issue a commission upon the application of plaintiff in error, to take the testimony of Joseph O. Dea in the state of New York.

Section 10, Article I, of the Constitution in brief specifies that provision may- be made by law for the taking of the deposition by the accused or by the state, to be -used for or against the accused, of any witness whose attendance can not be had at the trial, always securing to the accused the means and opportunity to be present in person and with counsel at the taking of such depositions.

The above constitutional provision merely authorizes the Legislature to make provision for the taking of a deposition.

' It' is optional with the Legislature to make such provision.

By virtue of this provision the Legislature of this state adopted Section 13668 of the General Code. This section provides that .when an issue of fact is joined upon an indictment and a material witness for the defendant or for the state resides out of ■the state or, residing within the state, is sick or infirm or about to leave the state or is confined in prison, such defendant, or-the prosecuting attorney may apply, in writing, to the court or a .judge thereof in vacation, for a commission to take the deposition of such witness or witnesses. The court or judge may grant such commission and make an order stating in what manner and .for what length of. time notice shall be given to the prosecuting witness or to the defendant, before such witness or- witnesses shall be examined,-

■ It appears from a reading of this section that even when an issue of fact is joined upon an indictment a discretion is reposed in the trial court as to whether such application should or should not be granted.

A reviewing court would therefore not be justified in reversing the ruling of the trial court thereon unless it clearly appeared from the record that the trial court had abused its discretion in refusing such request.

The record in this case does not disclose such a state of facts.

It being optional with the Legislature to make provision for the taking of such depositions the trial court could grant such application only in the cases specified by the Legislature. •

The Legislature by Section 13668 limited the court’s authority to grant such application in cases,wherein an issue of fact'was joined upon an indictment.

No indictment was returned in this case. No indictment could be returned before a justice of the peace.

The issue of fact was joined upon an affidavit, not an indictment, and we are of Opinion that the juátice of the peace for this reason did not err in overruling the application for the commission.

(2) . It is also claimed by counsel for plaintiff in error that the affidavit in question should have charged that the sale was made to the Venus Chocolate Company, instead of to Stanley Bryan, the agent and employee of the Venus Chocolate Company.

From an examination of the Ohio authorities cited in the brief of counsel for defendant in error we are clearly of opinion that the offense in question consisted of making the illegal sale.

The identity of the purehasér is therefore not an essential element of the offense and we do not think a material variance exists as claimed by counsel for plaintiff in error.

(3) .' It is further claimed that the article in question was sold to the Venus Chocolate Company as imitation vanilla;-that said company knew exactly what they were securing; that the record fails to show that the proper label was not on this package when the same arrived in Sidney, .and that therefore .the judgment in this case is clearly against the weight of the evidence/ "

We have carefully read, the record in this case insofar as it relates to the grounds of error urged by counsel for plaintiff in error.

We shall not undertake to discuss the testimony in detail, as counsel are familiár with the same, but from an examination of the record we would not feel justified in finding that the judgment is against the manifest weight of the evidence.

After a careful consideration of the record and authorities, we find no error in the record which we consider prejudicial to plaintiff in error and the judgment of the court of common pleas will be affirmed and cause remanded for execution.

Allread, J., and Ferneding, J., concur.


text:
    MECHANICS’ LIEN MAY COVER MACHINE.
    Court of Appeals for Hamilton County.
    Rule v. The Automatic News Distributing Co.
    Decided, July 19, 1915.

      Mechanic’s Liens — Attaches to Machines — Where Not Permanently Attached to Land or Building — But Sold and Used on the Premises.

    1. It is not necessary in order for a mechanic’s lien to be effective that there must be real estate of the lien debtor to which it can attach.
    2. Where machines are sold for and used in erecting, altering or repairing a manufactory of the purchaser, and such machines are not attached or fastened to the building or land in such a way as to make them permanent fixtures, the seller has a mechanic’s lien upon such machines.

      Gatch & McLaughlin, for the E. A. Kinsey Company.

      Overbeck, Kattenhorn & Park, for Jos. W. Conroy, Receiver.
   Jones (E. H.), J.

The question this court is called upon to decide pertains to the validity of a mechanic’s lien held and sought to be enforced herein by the E. A. Kinsey Company. The claim secured by the lien amounts to about $972, with interest, which sum represents the value of two machines furnished by the E. A. Kinsey Company to the Automatic News Distributing Company, for which .a receiver was appointed after the purchase of the machines.

It appears that the machinery in question has been sold by the receiver, and the proceeds are held under stipulation, subject to the determination of the question arising on said lien. This question of the validity of the lien arises in the action originally brought for the appointment of the receiver, upon the intervening petition of the E. A. Kinsey Company seeking the enforcement of its lien.'

The questions involved and discussed in the able briefs of counsel are important. We regret that time will not permit a reference to and discussion of the cases cited by counsel in support of their respective contentions.

The main question is of much importance and merits careful consideration, which it has received at our hands. It involves the construction of Section 8308, General Code, which is as follows : 1Í . “ •

“Every person who does work or labor upon or furnishes machinery, material or fuel for constructing, altering, or repairing a boat, vessel, or other water craft, or for erecting, altering, repairing or removing a house, mill, manufactory, or any furnace or furnace material therein, or other building, appurtenance, fixture, bridge, or other structure, or for digging, drilling, boring, operating, completing or the repairing of any gas well, oil well, or other well, or performs labor in altering, repairing, or constructing any oil derrick, oil tank, oil or gas pipe line, or furnishes tile for the drainage of any lot or land by virtue of a contract, express or implied, with the owner, part owner or lessee, of any interest in real estate or the authorized agent of the owner, part owner, or lessee of any interest in real estate, shall have a lien to secure payment thereof upon such boat, vessel, or other water craft, or upon such house, mill, manufactory, furnace, or other building, or appurtenance, fixture, bridge, or other structure, or upon such gas well, oil well, or other well, or upon such' oil derrick, oil tank, oil'or gas pipe line, and upon the material or machinery so furnished, and upon the interest, leasehold or otherwise, of the owner, part owner, or lessee in the lot or land upon which they may stand, or to which they may be removed.” - ■ - -

The machines'furnished by the E. A. Kinsey Company to the Automatic News Distributing Company were placed, in a factory used, for making vending machines. The space occupied by said factory was part of a factory building owned by the M. A. Hunt Company, and such space ,was leased by the Automatic Machine Manufacturing Company, by written lease duly.re: corded, prior to the purchase of the machines by the Automatic News Distributing Company from the E. A. Kinsey Company. .These machines, it is admitted, form no part of the realty, and were not attached or fastened to the-building or land in such á way .as to make them permanent fixtures. In fact, .one of the machines at the time the receiver was appointed had never been psed. The question is: Does Section 8308, General Code, above quqtedr authorize a lien upon-this machinery, in fay,or of. the EV A. Kinsey Company ? It .is contended by the receiver that inasmuch as the lease was held by the machine company,, ipstead of by the news company (which latter company, as will be!borne in mind, purchased the machines), there can be no lien-'that in order for the-lien to be effective there must be soipe real estate of the’lien, debtor to. which it can attach; and that .this lease being held by another company makes it impossible for the E. A. Kinsey Company to acquire any rights as against.,the lessee. ■ . • . ’ . •. \ r • /. ” ■

There' is some question raised by 'the'evidence and the admitted facts -as to whether .these 'two companies were Teally' different, or were, in fact, one company,operating,under twdsepa1 rate names. Under the view we' take of this case this, question ber comes ■ unimportant. The news company was without question operating-this factory. Its name appeared ovér the door, The machine' company had formerly operated a factory on'Fourth street,; the news company had taken over. its machinery .and equipment'-and removed it to the present location.., Under-these circumstances, .there can be-no doubt but that-the.'news company, the purchaser of these machines, was operating the plant. That there w,as a lease for the real estate on record, to some one else, does not change this fact.

It will be noticed that Section 8308, using only the words thereof that are applicable to this case, says:

■ “Every person who * * * furnishes machinery * * * for erecting, altering, repairing or removing * * * a * * manufactory * '* * shall have a lien to seettr'e1 páymerit thereof upon such ^ * *' manufactory ' ■* * and upon the material or machinery so furnished, and upon’the interest* leasehold or otherwise, of .the owner,.-part owner,; or lessee,in the lot or land upon which they may stand or to which they may be removed.”

We have examined the eases cited in the briefs, as1 well as other authorities, and, after all, feel that we must be controlled by the provisions of the law of our state, so far as that law applies to the case before us. A mechanic’s lien is purely a ereatbre of the statute, and in every case involving a mechanic’s lien the. main question must necessarily be, What does the statute provide? We have asked ourselves that question in this case, and will answer it by saying that we believe Section 8308, General Code, gives the E. A. Kinsey Company a right of lien upon the two machines furnished by it, and which were used in erecting, altering or repairing the manufactory of the person with whom it contracted for the sale of the machines.

Authorities ,are cited,' and are numerous, in support of the proposition that a lien could not have been secured upon these machines, or upon other machines placed as these were in a factory, by some one who had furnished labor or material for the construction of the building wherein the factory was located. It is obvious that in such a case a mechanic’s lien could only be obtained upon the building and such machinery as was a part of it under the law relating to fixtures.

The question here presented is not such a question as is discussed in those cases. The E. A. Kinsey Company only claims a lien upon the two machines which it sold ,and which went into and became a part of tbe factory. They were machines that were necessary, and that greatly added to the output and efficiency of the factory.

By its intervening petition the lien holder does not seek to enforce a lien upon the real estate, the leasehold, or any property, real or personal, except these two machines. The statute, under a fair construction, as we think, gives it the lien which it seeks to enforce. In support of this construction we refer to the case of E. A. Kinsey Co. v. Heckermann, Trustee, 224 Fed. Rep., 308, 139 C. C. A., 544. By reference to that decision it will be found that the learned judge so construed Section 8308 of the General Code of Ohio as to uphold the lien contended for by the E. A. Kinsey Company in this case.

The prayer of the intervening petition will therefore be granted.

Judgment accordingly.

Jones (Oliver B.), J., ,and Gorman, J., concur.


author: Jones (E. H.), P. J.

text:
    VALIDITY OF ORDINANCE AGAINST LOITERING.
    Court of Appeals for Hamilton County.
    In re Baldridge (Bader, Superintendent, v. McCartin).
    Decided, May 10, 1915.

      Loitering — May be Punished Under the Act Relating to Vagrancy— Habeas Oorptis for Release of One Pound Guilty of Loitering — ■ Section 3664.
    While cities are without authority to punish loiterers as such, they have ample authority to punish vagrants, and an ordinance passed in the exercise of such power is not invalid because the word ' "loitering” is used in defining the offense, and in creating the class of vagrants contemplated.

      Walter M. Schoenle, City Solicitor, and E. S. Morrissey, Prosecuting Attorney of Municipal Court, for plaintiff in error, Ferd Bader, superintendent of the Cincinnati workhouse..

      Jas. J. McCartin, in propria persona and for John Baldridge.
   Jones (E. H.), P. J.

John Baldridge was convicted of a violation of Section 907 of the ordinances of Cincinnati, which we reproduce below.

Baldridge was discharged from prison by the insolvency court on a writ of habeas corpus, on the ground that said ordinance is invalid. In so deciding, it appears that the learned judge felt bound by the decision of the circuit court in In re Opal Howard, 15 C.C.(N.S.), 171. The court in that case held that the ordinance upon which that prosecution was based was invalid for the reason that the state of Ohio through its General Assembly had not delegated to the city the power to pass such an ordinance.

This calls for a comparison of the ordinances to see whether or not the' present ordinance bears the infirmity which was pointed out in the ordinance involved in the Howard case. That ordinance reads as follows;: •

‘ ‘ Section 907. If * * # any person shall be found loitering about any common barroom, dram shop, gambling house or house of ill-fame, or wandering about the streets either by night or day without any lawful means of support,” etc., such person shall be fined, etc.

The agreed statement of facts embodied in the bill of exceptions herein states that Baldridge “was arrested and prosecuted by virtue of Section 907 of the Code of Ordinances of the city of Cincinnati, passed February 4, 1913, which section reads as follows:

“ ‘Be it ordained by the Council of the City of Cincinnati, State of Ohio.
“ ‘Section 1. That Section 90Í7 of the Code of Ordinances be .amended to read as follows: Section 907. Loitering — Any person found loitering about any street, alley, avenue, park or public or private place within the city of Cincinnati without legal means of support, who being -able to work for the support of himself or herself at honest industry, intentionally lives idly and without endeavoring in good faith to obtain lawful' work or employment, shall be deemed a vagrant and, on conviction thereof, shall be fined not less than one or more than fifty ($50) dollars for each offense.’
“That the said John Baldridge.was tried on or about the 23d day of February, 1915, and convicted of said offense!”

Some question was raised in oral argument about the affidávit upon which Baldridge was arrested, and the claim was made that it did not state -facts sufficient to constitute an offense under the present ordinance.

The papers in the ease in the municipal court were not in evidence in this case. No documents are attached to the bill of exceptions, and it contains copies of none. This case was submitted to the insolvency court on an agreed statement of facts, to which reference has been heretofore made. That statement of facts contains no reference to the affidavit for arrest .and^ it can not be regarded as part of the record in the case under review.

The record here presents but one question, i. e., the validity of the ordinance.of February 4, 1913. It shows that Baldridge was arrested, prosecuted and convicted for its violation. This ordinance defines “vagrancy” and fixes a penalty therefor.

Section 3664, General Code, authorizes such legislation by a municipality:

“Section 3664. To provide for the punishment of persons disturbing the good order and quiet of the corporation, by clamor and noise in the night season, by intoxication, drunkenness, fighting, using obscene or profane language in the streets and other public places to the annoyance of the citizens, or otherwise violating the public peace by indecent and disorderly conduct, or by lewd or lascivious behavior. In like .manner to provide for the punishment of any vagrant, common street beggar, common prostitute, habitual disturber of the peace, known pickpocket, gambler, burglar, thief, watch-stuffer, ballgame player, a person who practices ,any trick, game or device with intent to swindle, a person who abuses his family, and any suspicious person who can not give a reasonable account of himself.”

The former ordinance which was declared invalid in In re Opal Howard differed from this in that it prohibited “loitering” only, and made no mention of “vagrant” or “vagrancy.”

"While the statute gives authority to punish all vagrants, the ordinance only embraces by its terms a class of vagrants described therein, and in this respect the lawmaking body of the city has not exercised all the power granted to it. By the former ordinance it was sought to punish loiterers, not all loiterers, blit only such as were described therein. But it was invalid, and so decreed, because of the lack of any authority in cities to punish “loiterers,” as such. There is given ample authority to punish vagrants, and this ordinance passed in the exercise of such power is not to be overthrown because the word “loitering” is used in defining the offense," and in creating the class of vagrants contemplated.

We are of the opinion, therefore, that the city acted entirely within the power delegated by said Section 3664, General Code, in passing the existing ordinance, and that it is a valid enactment.

Judgment reversed.

Jones (Oliver B.), J., and Gorman, J., concur.


author: Powell, J.

text:
    AS TO THE RUNNING OF THE STATUTE OF LIMITATIONS IN CASE OF TRESPASS.
    Court of Appeals for Stark County.
    The Louisville Brick & Tile Co. v. Calmelat et al.
    Decided, March 24, 1917.

      Trespass — Application of the Statute of Limitations to a Continuing Trespass or Nuisance — Emission of Smohe, Soot and Gas Upon the Lands of Another.

    1. Under the doctrine of permanent trespass or nuisance, for which but one action lies, and for which damages may be awarded in solido, when a man commits an act of trespass upon another’s land, and thereby injures such other at once and to the full extent that such act will ever injure him, he is liable at once for this one act and all its effects; and the time of the statute of limitations runs from the time of such act of trespass.
    2. When an owner of land Tightly and lawfully does an act entirety on his own land, and by means of such act puts in action, or directs a force against, or upon, or that affects, another’s land, without such other’s consent or permission, such owner or actor is liable to such other for the damages thereby so caused the latter, and at once the cause of action accrues for such damages; and such force, if so continued, is continued by an act of such owner or actor, and may be regarded as a continuing trespass or nuisance; and each additional damage thereby caused is caused by him and is an additional cause of action; and until such continued trespass or nuisance by adverse use ripens into and becomes a presumptive right and estate in the former, the latter may bring his action.

      A. M. McCarty and John C. Welty, for plaintiff in error.

      Hart & Koehler, contra.
   Powell, J.

The parties stand in this court in the inverse order to -that in which they stood in the court below, the plaintiff in error being defendant in that court, and the defendants in error, plaintiffs. We will refer to them in this opinion in the order in which they stood in the trial court.

The plaintiffs are the owners of a tract of land described' in the petition. The defendant is a manufacturer of brick, tile and other clay products. Its plant is located immediately west of the premises of plaintiffs. It owns and operates continuously sixteen tile or brick kilns, and had so owned and operated said plant for more than four years immediately preceding the commencement of this action. In the manufacture of its products it is alleged that large quantities of smoke, soot, cinders and gas constantly emanate from'its kilns, and the same are east over and upon plaintiffs’ said lands, the comfort of plaintiffs interfered with, and said lands depreciated in rental value by reason-thereof, to plaintiffs’ damage in the sum of $2,000, for which they ask judgment.

On the trial of the action in the court below, plaintiffs recovered judgment. Defendant seeks a reversal in this coart.

The principal contention of the parties is as to the application of the statute of limitations, which is pleaded as a defense. The first kilns of the defendant were built in 1892. There were eight of them. In the year 1900 the plant was destroyed by fire. It was then rebuilt and eight more kilns added, and it has been operated continuously from 1901 until the present time with sixteen kilns. The proper judgment to be rendered depends on the character of the trespass complained of. If it is what, in law, is known as a permanent nuisance, then a cause of action arose in favor of plaintiffs when the first eight kilns were constructed in 1892, and any right of recovery was barred 'by the statute of limitations at the commencement of this action,

“When a man commits an act of trespass upon another’s land, and thereby injures such other at once and to the full extent that such act will ever injure him, he is liable at once^ for this one act and all its effects; and the time of the statute of limitations runs from the time of such act of trespass.” Valley Ry. v. Franz, 43 Ohio St., 623, 625.

This is the doctrine of permanent trespass or nuisance, for which but one action lies, and for which damages may be awarded in solido. It is wholly an action for trespass. Williams v. Pomeroy Coal Co., 37 Ohio St., 583; P. Ballcmtine & Sons v. Pub. Service Corp., 86 N. J. L., 331, L. R. A., 1915A., 369, and Downs v. Greer Beatty Clay Co., 9 C.C.(N.S.), 345.

A private or continuing nuisance is defined to ;be:

“Anything done to the hurt or annoyance of the lands, tenements or hereditaments of another, and not amounting to a trespass.” 3 Stephen’s Commentaries (1st Ed.), 499, and Goodall v. Crofton, 33 Ohio St., 271.
“The business of burning brick is .a lawful one, and whether or not it is a private nuisance depends upon the circumstances' of each particular case.” Downs v. Clay Co., supra, 345.
“And when the owner of land rightly and lawfully does act entirely on his own land, and by means of such act puts in action, or directs a force against, or upon, or that affects another’s land, without such other’s consent or permission, such owner or actor is liable to such other for the damages thereby so caused the latter, and at once .a cause of action accrues' for such damages; and such force, if so continued, is continued by the act of such owner and actor, and it may be regarded as a continuing trespass or nuisance; and each additional damage thereby caused is caused by him and is an additional cause of action; and until such continued trespass or nuisance by adverse use ripens into and becomes a presumptive right and estate in the former, the latter may bring his action.” Valley Ry. Co. v. Franz, 43 Ohio St., 623, 627, and City of Mansfield v. Hunt, 19 C. C., 488.

There are numerous authorities in Ohio and elsewhere supporting the doctrines above laid down. The court in the instant ease is required to decide which of the two kinds of action is presented by the record.

The petition alleges that the defendant, by reason of the smoke, soot, cinders and gas emitted from defendant’s kilns and cast upon plaintiffs’ lands, “has injured the vegetation, crops and shrubbery growing upon plaintiffs’ premises” within the four years immediately preceding the commencement of the action.

It further alleges “that by reason of the soot, cinders and offensive gases so cast upon and about the premises of plaintiffs, the comfort of the plaintiffs has been interfered with, said premises rendered uncomfortable for habitation, and greatly de^ preeiated in rental value, for said period 'of four years, all to ■the injury and damage of the plaintiffs in the sum of two thousand dollars.”

The complaint last above quoted is certainly of the character of a permanent trespass or nuisance, for which but one action for damages can be maintained, ,and that action is barred by the four-year statute of limitations.

The charge first above quoted for damages to "vegetation, crops and shrubbery” of plaintiffs is as plainly a continuing trespass, for which an action will lie, as the other is a permanent trespass, and upon this charge alone the court finds plaintiffs were entitled to recover in this action; and there being no other error prejudicial to the rights of the plaintiff in error complained of, or shown by the record, the court has arrived at the conclusion that said judgment should be affirmed.

Judgment affirmed.

Shields, J., and Houck, J., concur.