author: JONES, J. (Orally.)

text:
    WILLS.
    [Jackson (4th) Circuit Court,
    June 7, 1906.]
    Jones, Walters and ' Cherrington, JJ.
    M. T. Ridenour v. Mary E. Callahan et al.
    JL. Doctrine of Implied Revocation does 'not Obtain as to After-Acquired Property.
    The doctrine of implied revocation that existed at common law prior to the English wills act of 1837, does not obtain in Ohio as to after-ac-guired property devised by will; or to devised specific property conveyed ^by a testator after the execution of the will and reconveyed to him before his death.
    [For other cases in point, see 7 Cyc. Dig., “Wills,” §§ 698-703. — Ed.]
    2. Rule Applied.
    Where R made a will in 1900, devising specific real estate, and thereafter conveyed such real estate to another, and later and before the death of R the same was reconveyed to the testatrix, said devise passes under the original will and is not revoked. ■
    3. Same.
    Under the facts stated in the second proposition of the syllabus, said will is construed, as to such devise, to speak from the death of the testatrix.
    [For other cases in point, see 7 Cyc. Dig., “Wills,” §§ 1077, 1078. — Ed.]
    [Syllabus by the court.]
    Error to Jackson common pleas court.
    J. O. Yates, for plaintiff in error:
    E. C. Powell, for Mary Callahan and Mary Callahan, guardian:
    S. F. White and R. L. Grimes, for J. S. Ridenour, administrator with the will annexed of Eliza B. Ridenour, deceased:
    John Harper, for Frank Ridenour:
   JONES, J. (Orally.)

This was an action in partition begun in the court of common pleas of this county.

Several of the defendants filed demurrers alleging that the petition did not state a cause of action; the court of common pleas sustained the demurrers, and proceedings in error have been instituted in this court to reverse the judgment of the court of common pleas.

The petition in the case is filed by one of the children of Eliza B. Ridenour asking for partition. He has made parties defendant in the ease, the heirs of Eliza B. Ridenour, together with the guardian of one of the imbecile children, and the administrator with the will annexed of Eliza B. Ridenour who is also a son of the testatrix.

The plaintiff sets forth the various interests of these heirs or children, of whom there were five, and claims that he has a one-fifth interest as tenant in common in the two tracts of land described in the petition. The petition alleges that on November 20, 1900, Eliza B. Ridenour, the testatrix, being then seized of the real estate described, executed a will, in which she provided that her imbecile child, Charles E., was to have a home and care, etc., and that her daughter Mary was to furnish this -home, care and provision for her imbecile brother, and for that, she was to have the property described in the petition for life. If Charles survived Mary, the plaintiff in error here, who is one of the testatrix’s children, was to look after Charles’s welfare.

Upon the death of both Charles and Mary, all the balance of the property remaining unconsumed was devised to her other three' children, M. T. Ridenour, James Ridenour and W. D. Ridenour.

On June 2, 1904, the testatrix executed a deed to Mary E. Callahan, her daughter, for the first tract named in the petition which I will call the “Bridge street” property.. This deed was executed for the nominal consideration of one dollar, and the further consideration of the care of herself and Charles for their respective lives, and to pay their funeral expenses, taxes, and certain other debts that she mentioned in the deed.

And on the same day she also executed a deed to one of her sons, James S. Ridenour, for the second tract, or the farm property, for the nominal consideration of one dollar and love and affection, and to make him even with the balance of the children; she, however, reserving to herself for life the profits out of this farm property after the payment of repairs and taxes thereon.

The petition further alleges that on June 25, 1904, for the purpose of having all of this property equally divided among them, that all the children except the imbecile, entered into a written agreement that these two tracts of property should be reconveyed to the testatrix, and that the expenses for the care of the mother, the testatrix, and of Charles, the imbecile, and William D should be borne equally by all of the five children.

The petition alleges that while the testatrix was a party to the written agreement she did not sign it.

The property thereupon was reeonveyed by the two children, Mary and James S, and the petition alleges the testatrix accepted this conveyance in pursuance of the agreement. On September 27, 1904, the testatrix died.

The contention in this case which counsel upon both sides have presented is this: After a testator has devised specific property to another, and between the date of the execution of the will and the time of the testator’s áeath has conveyed the specific property, and later has had the property reconveyed to him, whether the aforesaid devise will pass the property under the original will, or whether by reason of that conveyance by the testator there has been an implied revocation of the will as to that property.

It will be observed that the will was executed in November, 1900. She made the deeds to the property in 1904, and before her death on September 27, 1904, the property that she so deeded after the execution of her will, was reconveyed to the testatrix.

Under the old English law, at least prior to July 3, 1837, when the wills statute was passed, there was no question but that if, after the execution of a will by a testator, he devised any of that property, a conveyance would abrogate the will pro tanto so far as that property was; concerned, and a reconveyance would not reinvest him with the property so he could devise it by will unless he would change the will.

The question is, whether that applies now, — whether the doctrine of implied revocation as it existed prior to 1837 exists at this date in Ohio.

Now in Ohio a will cannot be revoked Orally. We have a statute which provides for the manner in which a will can be revoked, and it can only be revoked in the manner provided by Rev. Stat. 5953 (Lan. 9491), and that is by the testator’s tearing, canceling, obliterating or destroying the same, or by a new will or codicil executed in writing under the same solemnities as the old will.

So under that section, that is the only method of revoking a will in this state, except it may still be revoked under the doctrine of implied revocation.

The latter part of Rev. Stat. 5953 (Lan. 9491) provides, in reference to the method in which wills may be revoked, as follows:

“But nothing herein contained shall prevent the revocation implied by law, from subsequent changes in the condition or circumstances of the testator.”

So that we still have in Ohio the doctrine of implied revocation.

Then the question is, Has this will been revoked pro tanto as to this property by a conveyance thereof by the testatrix during her lifetime 1

There is no question but, that at the time the case of Brush v. Brush, 11 Ohio 287, was decided this would have been an implied revocation, and since our present will statutes in Ohio were not in force in 1842 when that case was decided, that the testatrix would not be reinvested with the property so as to make this property pass under the will.

The position of plaintiff in error perhaps is better stated in Page, Wills Sec. 278; and counsel can see why in the early years of the English laws the doctrine of implied revocation applied with so much strictness as it did then. But prior to 1837, as I have stated, the will took effect at the date of its execution, and if a testator during that time devised property, no after-acquired property, whether such was the same property or other property, would pass by that will. It was only property that he had possession of at the date of the execution of the will and of which he had continuous seizin at the time of his death, that passed under the will at that period.

“This rule at common law rested upon the principle that testator by a devise of his property could dispose only of the real property then owned by him; while after-acquired property could not be devised, but passed to the heirs. As we have seen, this was the result of the common-law theories of seizin. Hence, if testator after making his will altered his estate in such a way as to devest himself of the seizin, even for a short time, his new estate in the property was looked upon as an after-acquired estate, and could not pass by will. To make a valid devise, testator had to be seized at his death of the same estate that he was seized of at the date of the will.” Page, Wills Sec. 278.

Now then the doctrine of implied revocation of the will did obtain on that date. What does it mean? Some of the authorities call it “implied revocation;” others “presumed revocation.” That is, there is merely a presumed revocation, because if after the time the will took effect, the property were conveyed, it would leave nothing for the will to operate upon. It was not a revocation arising from any expressed intention of the testator, but was a revocation arising under the legal maxim, “Ex necessitate rei.”

But how has it been since the enactment of the Victorian statute on July 3, 1837, which is substantially in force in nearly all the American states ?

Section 23 of the English wills act referred to, similar in effect to Rev. Stat. 5956 (Lan. 9494), reads as follows:

“And be it further enacted, that no conveyance or other act made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an act by which such will shall be revoked as aforesaid, shall prevent'the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of by will at the time of his death. ’ ’

Then it changes the old common law as to when the will shall speak in Sec. 24: “Be it further enacted, that every will shall be construed, witb reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.”

Now that is the doctrine in Ohio, and in fact found substantially in Rev. Stat. 5969 (Lan. 9508) but not in.the exact language of Sec. 24 of the Victorian statutes.

Revised Statute 5969 (Lan. 9508) provides that, “Property acquired by the testator after the making of his will, shall pass thereby, in like manner as if held or possessed at the time of making the will, if such shall clearly and manifestly appear by the will to have been the intention of the testator.” .

This section means nothing more or less than the will must be construed to -speak from the death of the testator, for the statute here passes property acquired after the will’s execution.

Now, in determining whether or not the old doctrine (the common-law doctrine of implied revocation of the will) applies to the facts in this case, we must take into consideration these two sections of the statute of Ohio. The main question is, "What is the law of Ohio as to when a will speaks? But before I come to that, I want to refer to the reason why the old rule was changed, and I will read very briefly from various authorities.

Page,. Wills 279, refers to the old doctrine:

“The subject of revocation by alteration of estate is practically obsolete at modern law. Nearly all the jurisdictions in which common law is in force have passed statutes to the effect that no alteration in the estate of testator in property devised or bequeathed shall effect a revocation of his will as to such, unless he is wholly divested of his interest therein, or unless in the instrument by which such alteration is made he declares his intention that it shall operate as a revocation of such previous devise.”

In 2 Woerner, American Law of Administration Sec. 419, p. *885, it reads:

“Under a technical rule of the common law, no real estate could pass by a will of which the testator was not the owner at the time of its execution. This rule has been severely criticised, as calculated to mislead and defeat the intention of testators, and is now abolished by statute in England, as well as in most, if not all of the states of the Union, providing, substantially, .that wills shall be construed, in respect of both real and personal estate, as if executed immediately before the testator’s death, or directing real estate acquired by the testator after the date of the will to pass thereby, if such appear to have been intended.” And tbe authorities cited embrace Ohio as one of the American states which have provided for such a statute, and that section is Rev. Stat. 5969 (Lan. 9508).

Beach on Wills perhaps has a better statement of this doctrine than any of the authorities cited.

3each, Wills (Pony edition) See. 67 is as follows:

“Under the old law it was essential to the validity of a devise of freehold lands that the testator should be seized thereof at the making of the will, and that he should continue so seized without interruption until his decease. If, therefore, a testator, subsequently to his will, by deed aliened lands which he had disposed of by such will, and afterwards acquired a new freehold estate in .the same lands, such newly acquired estate did not pass by the devise, which was necessarily void. And the devise of a freehold lease, which was renewed by the testator after making his will, could not take effect under it.”

Why? Because a devise made after the execution of the will must have reference to property only that he was seized of at the daie of his will, and if he acquired property under this rule after that, the devise would not pass for the reason he did not have it at the date of the execution. The same authority goes, on to say :

“But the revocation of devises by an alteration of estate, is placed on an entirely new footing by the statute of I Victoria, Chap. 26, which provides: ‘No will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances; and that no conveyance or real or personal property previously devised, shall act as a revocation as to the estate or interest therein, which the testator may have the right to dispose of by will at the time of his death. In several of the united American states, similar statutes are to be found, providing in substance that no conveyance or alteration of estate which does not wholly divest the testator of all interest in the property mentioned in the will, shall prevent the operation of the instrument with respect to that which the testator may have power to dispose of at the time of his death. Such provisions are contained in the statutes of the Vir-ginias, Kentucky, Ohio, etc.’ ”

So also is to the same effect 1 Jairman, Wills Sec. 147-162.

We can very easily see how and why these various textbooks seem to differ, for the reason that under the old law only such real estate passed as the testator had when he executed the will.

Now under our wills act, whatever real estate the testator has, whether at the execution of his will or at his death, whether such be after-acquired property, or, as in this ease, property he had conveyed, and later become reinvested with as after-acquired property, since the will speaks from the date of the testator’s death, such property passes thereunder, and that is the reason why the old rule has been.modified.

In 30 Am. & Eng. Ene. Law (2 ed.) 654, that reason is set forth:

“It was formerly essential' to the validity of a devise of freehold lands that the testator should be seized thereof at the making of the will, and that he should continue so seized without interruption until his decease. If, therefore, the testator aliened lands which he had previously devised, but afterwards acquired a new freehold estate in the lands, such newly acquired estate did not pass by the devise, which was necessarily void. ’ ’

The text plants the proposition upon the fact that it was necessarily so because he had to be invested with the title at the time of the will. Then the author says:

“By virtue of statutes, however, which now exist generally and which provide in substance that a will shall be construed to speak and take effect as if it had been executed immediately before the death o£ the testator, unless a contrary intention appears therein, a conveyance by the testator of land which has been devised by him does not revoke such devise if subsequently, and before his death, the title to the land conveyed revests in him.”

It cites a number of authorities, and one of them is the case of Woolery v. Woolery, 48 Ind. 523, where Jarman, Wills *147, states the case as follows:

“It was held in Indiana- where real estate was owned by the testator at the time of making the will, and was some years later conveyed by the testator, and, one year after such conveyance by him, re-conveyed to the testator, that the will was not, therefore, revoked by implication, but that its operation -was restored as to this real estate.”

Beach also, on pages 152 and 155, distinguishes and applies the doctrine to the laws as they now exist and as they existed prior to the enactment of the Victorian statute:

“The corresponding English statute regulating this matter enacts that every will ‘shall be construed wdth reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. The effect of this statute and of those of the American statutes which follow its phraseology, is to raise the presumption of an intention to pass the after-acquired estate, unless the contrary be shown, throwing the burden of proving the contrary upon the heirs.’ ”

And on page 155 fhe author says:

“At common law, a specific bequest was supposed to refer to the property answering the description at the date of the will. Hence, subsequent changes in property so given operated as an ademption thereof. But under the modern statutes by which wills are construed as to the real and personal estate, to speak from the death of the testator, a bequest of a leasehold is not adeemed by the expiration and renewal of the lease; and a subsequently acquired fee in the same property, although described as held for a term of years, passes under the bequest.”

The reason for the rule is given) as I have stated, — that it depends entirely upon when the will speaks.

The 13 Am. & Eng. Ene. Law (1 ed.) 100, 101, 102, and the note thereunder I think, treats briefly and well the question I am now discussing, and much better than the second edition does.

The text is as follows:

“Where a testator in his lifetime makes a conveyance of land specifically devised, the devise is thereby adeemed or revoked. If the whole estate is conveyed, the ademption is complete; if only part, the devise may still take effect on the residue. At common law, a devise so adeemed was not revived by reconveyance; whether' statutes providing that the will shall speak from the testator’s death would in themselves have that effect is, at least, doubtful; but under such act taken in connection with acts providing that no alteration of estate shall work a revocation, the lands reconveyed pass under the original description.”

And here it cites in the note, among others, Brown v. Brown, 16 Barb. 569, where it held that lands reeonveyed were held to pass under the original description. .

We have not before us the New York or Indiana wills statutes, but .1 assume they are substantially very similar to the Yictorian statute as those of Ohio are.

Beading the statutes of Ohio in that connection here (and when these statutes, Rev. Stat. 5956, 5957; Lan. 9494, 9495, speak of alteration or inconsistencies they refer to such alteration or inconsistencies in an instrument or conveyances that may exist at the death of the testator, not as at‘common law as they may exist at the time of the execution of the will; and “at the death of the testator” might be read into these statutes for the purpose of this construction) we have .the application of Jhe foregoing text.

Bevised Statute 5956 (Lan. 9494) provides that,

“A conveyance, settlement, deed, or other act of the testator, by which his estate or interest in property previously devised or bequeathed by him, shall be altered, but not wholly divested, shall not be deemed a revocation of the devise or bequest of such property, but such devise or bequest shall pass to the devisee or legatee, the actual estate or interest of tbe testator, which would otherwise descend to his heirs, * * * shall pass” * * *. When? At the time of the death of the testator.

In other words, under this statute all that the jurist must necessarily do is to take the conveyance that is outstanding and say whether at that time (the testator’s death) there is an alteration of the estate.

And the next section provides for revocation in certain contingencies when the instrument shall be inconsistent with the devise in the will.

’ When inconsistent? At some time before the- will takes effect? That would be reduciio ad absurdum.

Reading this section:

“But if the provisions of the instrument by which such alteration is made, are wholly inconsistent with the terms and nature of such previous devise or bequest, such instrument shall operate as a revocation thereof, unless such provisions depend on a condition or contingency, and such condition be not performed, or such contingency do not happen.”

There is no instrument in this case by which it can be compared. It has lost its vitality. The estate provided therein has gone back to the testatrix, and this statute must be construed so that this inconsistency be shown at the time the will speaks.

Revised Statute 5969 (Lan. 9508) provides that after-acquired estate shall pass under the will as if held at the time of its execution.

In other words, it provides that the will speaks from the date of the testator’s death.

These will statutes of Ohio entirely change the law of implied revocation of devises as it existed prior to 1837.

Think of it! I'f the law prior to 1837 should obtain to-day and the testator should make a will, and between that time and his death he should deed a portion of his property to some person for a period of forty-nine years, it would be impossible for the testator to obtain a reconveyance of that property to pass it under the description of the will.

He would have to make a new will to govern; a man would have to make a new will every time he acquired property that he had previously owned and devised.

That isn’t the intention, we think, of these will statutes as they have existed from 1837 up to the present time.

It seems to us that there can be no doubt that the revocation that is complained of by counsel for the plaintiff in error does not apply -to a case of this kind.

A query might arise whether, on the pleadings, the judgment should not be affirmed for the reason that the plaintiff’s amended petition does not definitely state that the testatrix was seized of the real estate in question when the will was executed.

As the main question is a new one and of considerable importance in this state, and was also argued very fully by counsel, we have deemed it best to decide the case on the lines stated.

The result of the judgment will be, that the judgment will have to be affirmed and the cause remanded.

Exceptions will be noted in -behalf of plaintiff in error.

Walters, J., concurs.

Cherrington, J., dissents.


source: Caselaw Access Project

author: PARKER, J.

license: Public Domain

text:
    HIGHWAYS — MUNICIPAL CORPORATIONS — SEWERS.
    [Lucas (6th) Circuit Court,
    October 18, 1906.]
    Haynes, Parker and Wildman, JJ.
    Alice M. Whitney et al. v. Toledo (City) et al.
    1 Public Highway Outside City may be Used for Storm Water Sewer to Drain Streets of City Adjacent Thereto, not Additional Burden.
    The construction of a sewer along a street in a city and out on a public highway beyond the municipal corporate limits, designed as a storm and surface water sewer to drain the streets and public ways of the city in the sewer district adjacent thereto and to empty into a creek on land just outside the corporate limits, is such a use of the public highway as was in law contemplated by the original proprietors of the adjacent land when they dedicated the land in the highway to the public use. Such construction will not be enjoined at the instance of an adjacent proprietor as being burden in addition to the regular public easement in the highway.
    [Por other cases in point, see 6 Cyc. Dig., “Municipal Corporations,” §§ 1176-1182, 2033-2043. — Ed.]
    2. Storm and Surface Water Sewer -along Highway and Emptying into Creek may not be Used also for Sewerage Purposes without Appropriating Right from Adjacent Owners.
    While a sewer designed to drain the streets and public ways of a city in the adjacent sewer district and extending along a public highway beyond the city limits may lawfully be constructed in such highway, it may not lawfully be used for sewerage purposes to the injury of private property adjacent to its outlet until the city constructing such sewer has acquired the necessary right by appropriation proceedings. Such use for sewerage purposes will be enjoined at the instance of a private owner injured thereby until such right has been lawfully acquired.
    [For other cases in point, see 5 Cyc. Dig., “Injunction,” §§ 256-268. — Ed.]
    [Syllabus approved by the court.]
    E. M. Beard, for plaintiffs.
    G. N. Fell, for Toledo.
    W. H. McLellan, for Breymann and- O’Neill.
   PARKER, J.

Sewer district No. 27 of the city of Toledo, is located in the west part of the city. A main or trunk sewer has been projected by the city, extending through said district, for a distance of something over a mile along certain streets and alleys, coming out upon Monroe street, within a few hundred feet of Ottawa creek; thence traversing Monroe street to the creek, where it is designed to empty.-

Breymann and O’Neill are the contractors who are to build this sewer.

Within about 150 feet, or thereabouts, of where the sewer empties, it crosses the city line, and for the remainder of the distance, traverses or continues in Monroe street, which is known, I believe, as the Monroe road, outside of the boundaries of the municipality.

The plaintiffs own a tract' of eighty acres of land, joining the west line of the city, lying upon both sides of the Monroe road at this point, and upon both sides of Ottawa river, sometimes called Ten Mile creek. This is to be a covered sewer of brick construction. For the distance between the city line and the mouth of the sewer, the sewer will be upon the northerly side of the road.

Plaintiffs’ land is used and occupied 'for farming, grazing and dairy purposes. The cattle upon the place — and the same is true of adjoining tracts of land — habitually frequent this creek and drink from its waters; and the waters at this point appear to us to be fit for such use.

The evidence tends to show that, there are sewers emptying into the creek lower down; but none so far up the creek as this proposed sewer.

Plaintiffs seek to enjoin the construction of this sewer on the ground that its use will pollute the waters of the stream; and upon the further ground that even ■ if they do not so pollute the waters of the stream, this use of the highway is unauthorized and may not be made, unless the right thus to use it shall have been acquired by appropriation proceedings.

There seems to us to be no question but that the city has a right to construct the sewer and to carry it beyond the city limits. But this, of course, leaves unsettled the right of the city as against the private right asserted by the proprietor of these lands. . In other words, the city has the authority thus to proceed, provided it acquires the tights of private proprietors; and it seems to us clear from the evidence that the sewer is needed; that it is a public necessity; that the board of health of the state has authorized its construction, and the emptying of it into this creek at this point; and that the county commissioners, insofar as they have authority over the public road outside of the city limits, have consented to its location in the public road.

But insofar as the construction of the sewer may infringe upon the private rights of the plaintiffs, of course the authority exercised by the council or received from the state board of health, or from the county commissioners, cannot affect such private right.

It appears to us from the evidence 'that though this sewer is designed for storm water, or surface water, and sewage as well, in all probability it will be some time before the sewage emptying into this sewer will be of a quantity to affect injuriously in a marked degree the water in the creek; and yet, should it affect it injuriously to any extent, we think that to that extent the plaintiffs have a right to. complain, and to that extent it would be laying burden upon the plaintiff’s land in addition to that of the public easement in the road for road purposes.

The rights of the contractors here can rise no higher than those of the city. But we are of the opinion that the rights of the city and of the contractors as well, to construct this sewer and to use it for 'the drainage of surface or storm water are clear under the law. Not so however of the right to use. it for sewage purposes.

Without expressing any opinion as to what the public authorities might do in the way of using a public thoroughfare or highway, or the channel of a stream, for the location of a«sewer to carry water away from private land, we think that the right so to use the same for the purpose of draining roads, streets, highways and the adjacent territory necessary to the preservation or improvement of the public highways is entirely clear under the law; and that this right in this instance extends, not only to the drainage of the Monroe road and Monroe street, but to the drainage of any other roads and streets in that locality that may be drained through and over Monroe street and the Monroe road.

Though the propxdetors of these lands who originally dedicated the part which is now called the Moproe road, may not have actually contemplated the filling up of this adjacent territory with houses and dwellings by the growth of the city, yet we think that by the law he must be held to have contemplated that, and that no matter how extensive or how numerous the streets, roads and highways laid out in that vicinity, either within the corporate limits or outside the corporate limits, the part of this territory in question known as the Monroe road, lying between the' city limits and the creek, ,has become subservient to the right and easement of the public in the drainage of all such public ways. And insofar as this sewer may be designed for such use, we hold that its location therein is an entirely lawful use of the highway.

It does not appear to us from the testimony that there will be in the construction of this sewer any injury to the plaintiff’s premises in the way of hindering the access thereto, or m any other way. It seems that the construction will be rather an improvement in that respect than otherwise. Nor does it appear that by the casting of additional fresh water upon the premises at the outlet of this sewer, there will be any injury to the plaintiff’s premises. Indeed it is not claimed that it would be, by the plaintiffs or their counsel. The creek at this point in dry seasons becomes nearly dry; at some times the current of the stream stops entirely; and an additional flow of fresh and pure water would be rather ■ a benefit to the plaintiffs ’ premises than otherwise; so that so long as it is used as a drain for surface water or clear water, or such water as naturally flows from the streets and highways, — that of course is not., entirely pure water, but is fluid of an entirely different character from sewage, — we hold that it may be lawfully so used. ¡

, But we are of the opinion that it may not be. lawfully used for sewage purposes until the right so to. use, it has been acquired by appropriation proceedings, and that the emptying of sewage should be forbidden without waiting for any material damage to the plaintiffs’ premises. It would be an infringement on the plaintiffs’ rights to require them to submit to the use of this sewer for sewage purposes, in ' ever so small a degree, until the right thus to use it had been acquired. Under Sec. 19 of the bill of rights, such use of plaintiffs’ premises in ever so small a degree would be a taking of their property, and this taking may not be done until the right is first acquired and paid-for.

The decree of the court will be, that the petition will be dismissed as to the contractors, Breymann and O’Neill. They will be permitted to construct this sewer. The city will be permitted to use it for the drainage of the streets and highways which it traverses and the streets and highways within the district. But the city will not be permitted to connect any private residences with this sewer, or any buildings or any places that would empty sewage into it until it has acquired the right by appropriation proceedings. We think that the plaintiffs have not proceeded prematurely here; but that they were quite fight in proceeding to enjoin this threatened injury of their premises; and it is apparent from the attitude of the city here that the city was going ahead to make this — that we regard as an unlawful use of the premises— without first appropriating the right therefor. The costs of the proceeding will be adjudged against the city.

No costs will be adjudged against Breymann and O’Neill. There have been no costs of any consequence made by adding the contractors as parties, and we think that for the sake of conformity they should have been and were properly made parties defendant.

Haynes and Wildman, JJ., concur.


author: GIFFEN, J.

text:
    LANDLORD AND TENANT — PARTITION—VENDOR AND ?UR= CHASER.
    [Hamilton (1st) Circuit Court,
    May 21, 1904.]
    Jelke, Swing and Giffen, JJ.
    Albert W. Schwartz, Exr., v. Katurah M. Williamson et al.
    Right to Possession oe Premises Sold on Partition between Sale and Confirmation of Sale.
    The lessee of land sold on partition is liable for rent for the occupation of the premises for the period from the sale to the confirmation and execution of the deed, and the purchaser not being entitled to possession for that period is not bound to pay rent for such period.
    [For other cases in point, see 7 Cyc. Dig., “Vendor and Purchaser,” §§ 192-195. — Ed.]
    Error to Hamilton common pleas court.
    A. L. Herrlimger, for plaintiff in error.
    Harlan Cleveland, for defendants in error.
   GIFFEN, J.

The original action in Albert W. Schwartz, executor of the estate of Lewis Freeman, deceased, v. Katurah M. Williamson et al., was commenced to recover quarterly installments of rent from the tenant of an undivided one-sixth interest of certain leasehold premises from July 1, 1898, to January 1, 1900. The defense was, that in partition proceedings between the tenants in common, of the leasehold premises, the sale was had on June 30, 1898, which was confirmed at the January term, 1900, and a deed, executed by the sheriff in pursuance thereof; that a confirmation of the sale and the deed by relation divested the defendant of all title as of the date of the sale; that having paid the rent up to the day of the sale there was no liability for rent thereafter. The defendant below was in possession, not as an original lessee, but through mean conveyances from him. Judgment was rendered in favor of the plaintiff, and the defendant prosecutes error.

The liability of the assignee of a lease is limited to the rent accruing during the continuance of his interest, and ceases with his right of possession. The question, therefore, is whether confirmation of the sale and execution of the deed by relation divested the tenant of all interest in the leasehold estate as of the date of the sale.

The general rule is, that confirmation of a judicial sale relates back to the day of sale and passes title as of that day, and the deed executed pursuant thereto takes effect as of that day. But there would seem to be a modification of this rule by Rev. Stat. 6600 (Lan. 10182), which provides that a suit in forcible entry and detainer may be brought in ease of sale on partition, where any of the parties to the petition were in possession at the commencement of the suit, after such sale, so made on execution or otherwise, shall have been examined by the proper court, and the same by said court adjudged legal.

It may fairly be implied from this provision that the purchaser at the partition sale is not entitled to possession until the sale is confirmed and that the tenant is entitled to hold possession until that time. It would be manifestly unjust to the purchaser to require him to pay rent when not entitled to possession of the premises, and to relieve the tenant who was entitled to such possession. In the case of Baltimore City v. Peat, 93 Md. 696 [50 Atl. Rep. 152, 698], relied upon by counsel for plaintiff in error, the sale was confirmed within a few days after made, while the deed was not executed until a long time thereafter. In this case the confirmation of the sale and execution of the deed were about of the same date, both being subsequent to the period for which a recovery of rent is sought. See, also, Thomas v. Connell, 5 Pa. St. 13; Wood v. Ferguson, 7 Ohio St. 288, 289 and 292.

Judgment affirmed.

Jeike and Swing, JJ., concur.


text:
    INJUNCTION — TRESPASS.
    [Hamilton (1st) Circuit Court,
    June 28, 1904.]
    Jeike, Swing and G-iffen, JJ.
    George W. Harding v. Lyman Perin, Jr., et al.
    Right to Injunctioh to Permit Trespass by Persons Claimixg Titee to Premises.
    A person in possession and claiming title to an estate which the defendant also claims and is threatening acts which will amount to a destruction of the estate may enjoin such defendant from doing such acts until the disputed title to the premises can he determined.
    [For other cases in point, see 5 Cyc. Dig., “Injunction,” §§ 430-436; 7 Cyc. Dig., “Trespass,” §§ 54-60. — Ed.]
   GIFFEN, J.

The plaintiff claims to be the owner and in possession of a lot of ground situated in the city of Cincinnati, on which there is a brick building and warehouse, and that the defendants threaten to take possession of the west wall thereof, remove the support of the roof, and thereby cause the entire roof to fall to the ground, all to the great and irreparable injury of the plaintiff. The defendants claim title to the premises, but admit that the plaintiff is in possession. The only question to be determined is whether the plaintiff is entitled to an injunction until the disputed question of title can be determined at- law. In High, Injunctions 698, it is said:

“Where the party aggrieved is in possession, he will be allowed to restrain such trespasses as would result in irreparable damage in the event of refusing the relief.”

And in the case of Ross v. Page, 6 Ohio 166, cited by counsel for the defendant, the same doctrine is-recognized. The court say:

“Where the trespass amounts to waste, going to the destruction of the estate, and producing an injury for which pecuniary compensation cannot be made, chancery may be called upon for its aid to stay the mischief by injunction.”

In Lownds v. Bettle, 33 L. J. Ch. 451, the distinction between the acts done by.a stranger and by one claiming title is clearly set forth as follows:

“Where, therefore, the plaintiff is in possession, and the person doing the acts complained of is an utter stranger, not claiming under color of right, the tendency of the court is not to grant an injunction, unless there are special circumstances, but to leave the plaintiff to his. remedy at law, though where the acts tend to the destruction of the estate, the court will grant it. But where the party in possession seeks to restrain one who claims by adverse title, there the tendency will be to grant the injunction, at least where the acts done either did or might tend to the destruction of the estate.”

In the case before us, the plaintiff is in possession; the defendants claim by adverse title, and the acts threatened will tend to the destruction of the estate. The defendants have a remedy by ejectment, and until they establish their title by an action at law, we are of the opinion that the tearing down of the building and the destruction of the estate should be enjoined.

Jelke and Swing-, JJ., concur.


text:
    ASSESSM ENTS — DAM AGES — ESTOPPEL.
    [Hamilton (1st) Circuit Court,
    March 10, 1906.]
    Jelke, Swing and Giffen, JJ.
    Robert Carlisle et al. v. Cincinnati (City).
    1. Damages for Appropriating Property and Costs Cannot be Included in Assessment for Improvement.
    An assessment for a street improvement insofar as it includes damages awarded to the property owners, the costs of the suit to assess compen- ■ sation therefor, or the cost of grading or lowering the street to the new grade is illegal and may he enjoined.
    [For other cases in point, see 4 Cyc. Dig., “Eminent Domain,” §§ 436-438; 6 Cyc. Dig., “Municipal Corporations,” §§ 1639-1645. — Ed.]
    2. Incidental Benefits Blended with Incidental Injuries Considered bt Jury.
    In an action to assess damages to abutting property on account of a proposed street improvement, the jury, while disregarding the general benefits which may result to the property, may consider an incidental benefit which is blended with an incidental injury, for the purpose of arriving at the extent of the injury sustained by the property.
    [For other cases in point, see 6 Cyc. Dig., “Municipal Corporations,” § 1449 et seq. — Ed.]
    3. Signer of Original Petition not Estopped from Contesting Assessment for Improvement on Subsequent Petition not Signed by Him.
    The signing by an abutting owner, of a petition for improvement of a street to a certain grade, does not estop him from. contesting the legality of the assessment, where the original petition was referred back to the property owners with the direction to file a new petition for an improvement at a different grade, and the second petition was not signed by the contesting owner.
    [For other cases in point, see 4 Cyc. Dig., “Estoppel,” §§ 45-60; 6 Cyc. Dig., “Municipal Corporations,” §§ 1213-1216, 1279. — Ed.]
    [Syllabus approved by the court.]
    INJUNCTION.
    Herman Merrell, for plaintiffs.
    G'eo. H. Kattenhorn, for defendant.
   GIFFEN, J.

The questions involved in this ease are stated in the brief of counsel for plaintiff's, as follows:

1. Is the assessment legal insofar as it includes the damages awarded to property owners and the ■ costs in the suit to assess compensation'to the plaintiffs and others for injuries caused by the improvement.

2. Is-the assessment legal insofar as it includes the cost of grading or lowering the street to the new grade?

- 3. "What is the effect of the verdict and judgment in the proceeding to assess compensation to plaintiffs, upon the right of the city to make any assessment against plaintiffs’ property for the surface improvement ?

4./ What-is the effect of the signing by plaintiffs of the first-petition for improvement of the street?

The first question is answered in the negative by the case of Cincinnati, L. & N. Ry. v. Cincinnati, 62 Ohio St. 465 [57 N. E. Rep. 229].

The second question is answered in the negative, also, by the case of Thale v. Cincinnati, Court Index, Feb. 4, 1902.

As to the third proposition, the right of an owner of a lot, bounding or abutting upon a proposed improvement, to recover damages by reason of such improvement, is guaranteed by Sec. 19, Art. 1 of the constitution, which provides that, “Such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.” In an action brought by a municipal corporation to assess damages which an abutting lot owner claims he will sustain by reason of a proposed street improvement, the jurj1- may not take into account, in estimating the amount of compensation to be paid to the owner, the general benefits resulting from the surface improvement of the street, yet where an incidental benefit to the lot is blended or connected with an incidental injury to such lot, the benefit may be considered in fixing the compensation to be paid the owner, not by way of deduction from the compensation, but of showing the extent of the injury done the value of the lot. Cleveland & P. Ry. v. Ball, 5 Ohio St. 568.

Fourth. 'Where the abutting lot owners petition for the improvement of a street at an established grade, and the petition is by the municipal authorities referred back to the property. owners, with directions to file a new petition, which is accordingly done, asking for the improvement at a different grade, a lot owner, not signing the latter petition according to the terms of which the improvement was made, is not estopped to contest the validity of the assessment, although he signed the original petition. Hayes v. Cincinnati, 62 Ohio St. 116 [5G N. E. Rep. 658].

It follows that the collection of the assessment so far as it include; damages assessed in favor of the plaintiffs and also the cost of excavation to the new grade, should be enjoined, and the balance sustained.

Jelke and Swing, JJ., concur.


author: HUR1N, J.

text:
    DAMAGES — MASTER AND SERVANT — WORK AND LABOR.
    [Allen (3rd) Circuit Court,
    April Term, 1905.]
    Norris, Vollrath and Hurin, JJ.
    Lake Erie & W. Ry. v. William Tierney.
    1. Dismissal of Negligence Suit is Sufficient Consideration for Contract for Future Employment.
    The dismissal -of a suit for damages, brought by an injured employe of a railroad company, is a sufficient consideration for a contract for his future employment so long as his services are satisfactory.
    [For other eases in point, see 2 Cyc. Dig., “Contracts,” § '444. — Ed.]
    2. Dissatisfaction must bf. Reasonable to Effect Discharge.
    Dissatisfaction with such services, such as to justify a discharge, must be a reasonable dissatisfaction and not an arbitrary one.
    3. Discharge of Employe for Unsatisfactory Services.
    The good faith of the company in claiming such services to be unsatisfactory will not alone justify the discharge, if the services rendered were, in fact, such as ought to have been satisfactory to a reasonable employer.
    [For other cases in point, see 6 Cyc. Dig., “Master and Servant,” §§ 36-39. —Ed.]
    4. Measure of Damages for Breach of Employment Contract.
    The measure of damages for the breach of such contract for employment is the amount of money which the employe would have earned at the stipulated salary from the time of his discharge to the time of the trial, together with the amount he could in future earn in the time during which he could reasonably be expected to serve, taking into account his age and state of health, and deducting whatever amounts he could reasonably have earned at other employment since his discharge, and what he might so earn in the future by reasonable diligence.
    [For other cases in point, see 3 Cyc. Dig., “Damages,” §§ 938, 939, 944, 946. —Ed.]
    [Syllabus by the court.]
    ERROR to Allen common pleas court.
    W. B. Richie and W. H. Leete, for plaintiff in error:
    When a contract is clear and unambiguous there is no reason for a construction. 2 Parsons,' Contracts 500; Beach, Contracts 854; Laivler v. Burt, 7 Ohio St. 350.
    There can be no recognized standard of satisfaction for personal services. Beach, Contracts 130.
    The employer is to be the sole judge. Sax v. Railway, 125 Mich. 252 [84 N. W. Rep. 314; 84 Am. St. Rep. 572]; Barrett v. Goal & G. Go. 51 W. Va.. 416 [41 S. E. Rep. 220; 90 Am. St. Rep. 802]; Adams

      Radiator & B. Whs. Co. v. Schnader, 155 Pa. St. '394 [26 Atl. Rep. 745] ; 7 Words &‘Phrases, Judicially Defined 629; Koehler v. Buhl, 94 Mich. 496 [54 N. W. Rep. 157] ; Plano Mfg. Co. v. Ellis, 68 Mich. 101 [35 N. W. Rep. 841] ; SUsby Mfg. Co. v. Chico, 24 Fed. Rep. 893; McCarren v. McNulty, 73 Mass. (7 Gray) 139; Brown v. Foster, 113 Mass. 136 [18 Am. Rep. 463]; Zaleshi v. Clark, 44 Conn. 218 [26 Am. Rep. 446]; Gibson v. Cranage, 39 Mich. 49 [33 Am. Rep. 351]; Gray v.-Railway, 11 Hun (N. Y.) 70; Hoffman v. Gallaher, 6 Daly 42.
    Measure of damages. 8 Am. & Eng. Ene. of Law (2 ed.) 554.
    A contract of employment in no stipulated capacity, for no stated period, except such as may be satisfactory to the employer, and for no designated wages, does not imply mutuality. Bowers v. Railway, 26 O. C. C. 519; Bolles v. Sachs, 37 Minn. 315 [33 N. W. Rep. 862] ; East Line & Red R. Ry. v. Scott, 72 Tex. 70 [10 S. W. Rep. 99; 13 Am. St. Rep. 758, 767]; Rhoades v. Railway, 49 W. Ya. 494 [39 S. E. Rep. 209; 55 L. R. A. 170; 87 Am. St. Rep. 826, 833],
    Edwin Blank and Cable & Parmenter, for defendant in error:
    The word “satisfactory” does not necessarily mean to the satisfaction of the railroad company. Adams Radiator & B. Whs. Co. v. Schnader, 155 Pa. St. 394 [26 Atl. Rep. 745]; Wood Reaper & M. 'M. Co. v. Smith, 50 Mich. 565 [15 N. W. Rep. 906; 45 Am. Rep. 57]; Pope Iron & M. Co. v. Best, 14 Mo. App. 502; Beach, Contracts Sec. 104; Folliard v. Wallace, 2 Johns. 395; Logan v. Berkshire, 18 N. Y. Supp. 164.
    Mutuality of contract. •Smith v. Railway, 60 Minn. 330 [62 N. W. Rep. 392]; Rhoades v. Railway, 49 W. Ya. 494 [39 S. E. Rep. 209; 55 L. R. A. 170; 87 Am. St. Rep. 826, 831] ; Beach, Contracts Sec. 457.
    The contract in the case at bar should be construed in view of the surroundings of the parties and not as contended for by plaintiff in error, where some material thing is to be furnished to satisfy the taste of the purchaser. 24 Am. & Eng. Enc. Law (2 ed.) 1237; Duplex Safety Boiler Co. v. Garden, 101 N. Y. 387 [4- N. E. Rep. 749; 54 Am. Rep. 709]; Russell v. Allerton, 108 N. Y. 288 [15 N. E. Rep. 391]; Doll v. Noble, 116 N. Y..230 [22 N. E. Rep. 406; 5 L. R. A. 554; 15 Am. St. Rep. 398]; Daggett v. Johnson, 49 Yt. 345.
    Measure of damages. Cosiigan v. Railway, 2 Denio 609 [43 Am. Dee. 758]; Stearns v. Railway, 112 Mich. 651 [71 N. W. Rep. 148] ; James v. Allen Co. (Comrs.) 44 Ohio St. 226 [6 N. E. 'Rep. 246]; Howard v. Daly, 61 N. Y. 362 [19 Am. Rep. 285] ; East Tennessee Val. & G. Ry. v. Staub, 75 Tenn. (7 Lea) 397; 3 Rapalje & Mack’s Dig. of Ry. Law 705: 1 Redfield. Railways 631, 632; 2 Sedgwick, Damages Sec. 666; Elsas v. Meyer, 10 Dec. Re. 518 (21 Bull. 346.) ; Graveson v. Life Assn. 11 Dec. Re. 369 (26 Bull. 183) ; Pierce v. Coal, Iron & By. Co. 173 U. S. 1 [19 Sup. Ct. Rep. 385; 43 L. Ed. 591]; Decamp v. Hewitt, 11 Rob. (La.) 290 [43 Am. Dec. 204],
    The court fully and completely stated the rules of law governing the ease in the general charge. East Tenn. Val. & G. By. v. Staub, 75 Tenn. (7 Lea) 397; Pierce v. Bailway, 173 U. S. 1 [19 Sup. Ct. Rep. 335: 43 L. Ed. 591]; Bhoades v. Bailway, 49 W. Va. 494 [39 S. E. Rep. 209; 55 L. R. A. 170; 87 Am. St. Rep. 826]; Pennsylvania!Co. v. Dolan, 6 Ind. App. 109 [32 N. E. Rep. 802; 51 Am. St. Rep. 289].
   HUR1N, J.

AYilliam Tierney, an employe of the Lake Erie & Western Railroad Company, some years ago sustained an injury through the alleged negligence of the railroad company, which resulted in the loss of a leg. He brought suit against the railroad company for $30,000 damages. That case was compromised and the suit dismissed, Tierney at that time signing a written instrument whereby, for a nominal consideration of one dollar, he released and discharged the railroad company from all claims, demands, suits, actions and causes of action, etc;, for any injuries to his person. The instrument contained this clause: “Said company to employ me so long as my services are satisfactory.” This agreement was dated October 31, 1892.. In pursuance of this agreement Tierney was employed by the railroad company as an assistant in the freight office at a salary of $40 or $45 per month. This employment continued nearly a year. He was then transferred to the South Main street crossing in Lima as flagman at $25 dollars per month. He accepted this employment and continued to serve as flagman at that point until October 27, 1899, when he was discharged for alleged misconduct, including negligence, absence from his post and drunkenness.

He thereupon commenced this action against the railroad company, alleging that his discharge was without cause; that the company had refused and still refused to furnish him employment; that he had in all respects fulfilled his agreement with the railroad company, to wit: the dismissal of the action for damages previously referred to; and that his services rendered the company were of a nature that should have been satisfactory to the defendant. For this breach of its contract of employment he asks damages against said company in the sum of $10,000.

The company answered, admitting the. dismissal of the former suit by Tierney, the contract of employment, the employment of Tierney in accordance with that contract, and his subsequent dismissal; and averring that his services were not satisfactory to defendant and that he was for that reason discharged. The case has twice been tried and the jury at the second trial returned a verdict in favor of the plaintiff;- for $3,000. Judgment was entered on the verdict, a new trial being refused.

This judgment we are now asked to reverse. The case seems to have been fairly tried and we have discovered no prejudicial errors in the admission or rejection of evidence. But strenuous objection is made to the verdict as against the weight of the evidence, and to "the charge of the court to the jury; and especially to the refusal of the court to charge the jury as requested.

It is claimed, and the court was asked to charge, that the contract furnishes no practical basis on which the amount of damages can be ascertained — that it is therefore void for uncertainty and want of mutuality.

That it is a difficult problem to determine the exact amount of damages recoverable in such a ease must be admitted. The uncertainty of life, of health, of continuing ability ahd disposition to render satisfactory services, combine to make a computation difficult. But the contract does furnish a basis for the computation and a practical one. That basis was well defined by the trial judge in his charge to the jury as full compensation in dollars and cents for all injuries arising from the breach of the contract. The details of the problem will be referred to later, but this is the basis of the computation and the defendant having made the contract, having received the consideration therefor — the dismissal of a $30,000 damage suit — cannot be heard to-complain that the contract is void for want of mutuality or for uncertainty, when the uncertainty consists merely in a difficulty of computation.

The court was asked to charge the jury that the company was to be the sole judge of the services rendered, and, if in good faith, it decided that his services were unsatisfactory, it had the right to discharge the plaintiff at any time.

This does not fairly state the case. The defendant may have been dissatisfied and may have thought that it had reason for dissatisfaction, and may have acted in good faith and so discharged plaintiff, and yet it may have been requiring unreasonable things; it may have been misinformed as to* his conduct and so may have become dissatisfied without good cause, yet in perfect good faith. This contract should not be construed from one side alone, and the court properly refused to do so in this respect. Each party had his rights and obligations. The obligations as well as rights of each must be considered. The charge as requested did not, in our judgment, meet this test.

Decisions of courts in other states, ignoring this mutuality of obligation and right, are cited by counsel for plaintiff in error; but, where they are applicable at all, we think them not within sound reason as applied to cases such as the one at bar.

The court was also asked to charge that even though the services may have been such as should have been satisfactory up to the time of the discharge, yet the jury is not authorized to presume that the services would have continued to be satisfactory to the defendant for any definite time.

It was in evidence that for seven years this plaintiff had rendered services sufficiently satisfactory to the defendant to secure his retention in its service. There would seem to be a strong presumption from that fact as to his continuing to do so, unless this was destroyed by evidence as to his past conduct or present want of capability. Of this evidence and of its weight the jury was the judge. It had a right to make such a presumption, if the evidence warranted it.

The court was also asked to say to the jury:

‘‘The jury cannot speculate as to the probabilities of further employment on the part of Tierney. ’ ’

This, we think, was properly refused, and it brings us to the consideration of the true rule for estimating the amount of recovery, if any, on the basis of injuries, received from the alleged breach of contract.

In the case of Stearns v. Railway, 112 Mich. 651 [71 N. W. Rep. 148], this rule is stated:

“For .the employer’s breach of a contract of employment at a specified salary during k person’s natural life or his ability to do the work, the measure of damages is the amount which the employe would have earned up to the time of trial at the contract salary, and the present worth of what he would be able to earn in the future, so long as he would be hble, in the ordinary course of events, to perform the service, less any sums which' he would be able to earn in other employment by the exercise of reasonable diligence.”

And in the case of Pierce v. Coal, Iron & Ry. Co. 173 U. S. 1 [19 Sup. Ct. Rep. 335; 43 L. Ed. 591], the Supreme Court lay down this rule:

“Where the railroad company after a time abandoned the contract and discharged the employe without cause, the latter may maintain an action, once for all, as for a total breach of the entire contract, and may recover all be would have received in the future, as well as in the past, if the contract had been kept, deducting any sum he might have earned in the past or might earn in the future and any loss the company had sustained by loss of his services without its fault. ’ ’

To the same effect is the case of East Tennessee Valley & G. Ry. v. Staub, 75 Tenn. (7 Lea) 397, where it is said that,

“The difficulty of ascertaining the damages by reason of the uncertain and contingent events upon which they depend, as the duration of pláintiff’s life, is no objection to the action.”

We must conclude then that the requests to charge, complained of as not given, were properly refused; that a practical basis for damages is afforded by the contract and that the court properly instructed the jury in the charge as given.

Was the verdict justified by the facts proven, and under the charge as given ? To have found as it did, the jury must have found from the evidence that plaintiff was discharged without justifying cause and that the amount of injury that he sustained by that discharge, measured by what he would have earned up to the time of the trial and by the length of time he could reasonably be expected to serve in the future, taking into account his age and state of health, and deducting what he could reasonably have earned since his discharge, and might earn in the future, in other employment, equalled $3,000.

There was much evidence tending to show that plaintiff’s discharge was justifiable; that he drank too freely for one on whom such grave responsibility rested; that he was careless and negligent in warning people of the approach of trains; that he frequently absented himself from his post, and that in other ways he was unfit for his position; and, that too, through his own fault. All this was denied by plaintiff’s witnesses, who testified to the contrary.

The jury had the testimony before it. It was a question of fact to be determined by the jury. We cannot say that their conclusion in this regard was against the weight of the evidence.

As to the amount of the verdict, while it seems to have been a liberal amount, it is not so excessive in our judgment as to justify a reversal. It is interesting to note in this connection, that at the rate of wages which Tierney was earning at the time of his discharge, his earnings from that day to this would have amounted to just $1,700— considerably more than half the verdict. At his time of life it seems altogether possible that he may live and retain his health long enough to have fully earned the balance of the judgment. But this merely in passing.

Finding no error, the judgment of the court of common pleas must be affirmed. Judgment against plaintiff in error- for costs for which execution is awarded, and cause remanded for.execution.

Norris and Vollrath, JJ., concur.

         Affirmed without report, Lake Erie & W. Ry. v. Tierney, 51 Bull. 377; 75 Ohio St. 000.


author: COOK, J.

text:
    REMOVAL OF TRADE FIXTURES.
    [Columbiana (7th) Circuit Court,
    October Term, 1906.]
    Cook, Burrows and Laubie, JJ.
    Byron S. Ambler v. Erie Ry. Co.
    Trade Fixtures Erected under Contract with Lessee Removable.
    Where a railroad company puts down side tracks, at the request of a coal company upon its leasehold estate, for the purpose of removing the coal, the lease providing that, upon an abandonment of the premises upon the part of such coal company, it shall have the right to remove the mining appliances, such railroad company has a right to remove such side tracks, upon the abandonment of the premises by the coal company, over the objection of'the lessor, provided it does so without doing substantial injury to the freehold, and before such abandonment takes place.
    [For other cases in point, see 4 Cyc. Dig., “Fixtures,” §§ 53-55; 5 Cyc. Dig., “Landlord and Tenant,” §§ 375-392. — Ed.]
    [Syllabus approved by the court.]
    Carey & Mullins, for plaintiff -.
    Billingsley, DeFord & Clark, for defendant:
    The burden of proof is upon the plaintiff not only to establish that he was the owner of the land upon which these tracks were placed at the time they were taken up, but that they were placed there as permanent additions to the real estate. Tewff v. Hewitt, 1 Ohio St. 511 [59 Am. Dec. 634],
    Plaintiff had no title to the ground on which the tracks were located. Day v. Railway, 41 Ohio St. 392; Goodin v. Canal Co. 18 Ohio St. 169 [98 Am. Dee. 95]; Cincinnati & I. Ry. v. Zinn, 18 Ohio St. 417; Preston v. Railway, 70 Tex. 375 [7 S. W. Rep. 825]; Justice v. Railway, 87 Pa. St. 28; Oregon Ry. <& Nav. Co. v. Mosier, 14 Ore. 519 [13 Pac. Rep. 300; 58 Am. Rep. 321]; Cohen v. Railway, 34 Kan. 158 [8 Pac. Rep. 138; 55 Am. .Rep. 242] ; Toledo, A. A. & G. T. Ry. v. Dunlap, 47 Mich. 456 [11 N. W. Rep. 271]; Lyon v. Railway, 42 Wis. 538-; Daniels v. Railway, 41 Iowa 52.

      The railroad company had a right to put down and remove the tracks. 13 Am. & Eng. Enc. Law (2 ed.) 644; Wiggins Ferry Co. v. Railway, 142 U. S. 396 [12 Sup. Ct. Rep. 188; 35 L. Ed. 1055]; Northern C. Ry. v. Canton Co. 30 Md. 347; Webster Lumber Co. v. Lumber & Mining Co. 51 W. Ya. 545 [42 S. E. Rep. 632; 66 L. R. A. 33, 41n] : Wagner v. Railway, 22 Ohio St. 563 [10 Am. Rep. 770]; Wittenmeyer v. Brooklyn (Bd. of Ed.),' 6 Circ. Dee. 258 (10 R. 119); Skinner v, Railway, 99 Fed. Rep. 465.
   COOK, J.

John' MeClymonds was the owner of a farm in this county. Many years ago the predecessors of the Erie Railroad Company, to whose rights the Erie Railroad Company succeeds,, secured a right of way for railroad purposes for a double track railroad sixty feet wide. If there was any deficiency in the railroad company’s rights in its in-cipiency, it has been cured by occupation under the statute of limitations, and such right has been conclusively settled.

MeClymonds’s heirs made a lease to Byron S. Ambler1 and William Dunn, for the coal underlying the farm. This lease was duly assigned and transferred by Byron S. Ambler and William Dunn to Frank M. Osborne who now holds the sáme in his own right for the Lisbon Coal Company.

Afterwards Byron S. Ambler purchased this farm from the Mc-Clymonds heirs, subject to the rights of the Erie Railroad Company, and also subject to the rights of Frank M. Osborne and his assignees under his lease.

The lease provided that the lessees should have the right to use so much of the surface as was necessary for buildings, tramways, tipples, tracks, and other appliances necessary to mine and market the coal. The lease further' provided that whenever the lessees or their assigns should find it unprofitable to mine for coal on the premises, they might abandon the same, by giving thirty days’ notice to the lessor or their assigns, and after such abandonment, they might remove all appliances put there for mining and removing coal from the premises, if done within ninety days from the date of abandonment. Afterwards, by an agreement in settlement of a law suit between the plaintiff and the Lisbon Coal Company, the lessees through Osborne, this time was extended, and notice given to the railroad company by the Lisbon Coal Company, of such extension.

The railroad company had, at the request of the Lisbon Coal Company, put down four side tracks to be used in the transportation of the coal of th? coal company by the Erie Railroad Company. One of the tracks was upon the right of way of the railroad company which was the one nearest the main track, and the other three were upon the surface of the lands of the lessors.

Previous to the expiration of the time for removing the appliances by the agreement of the Lisbon Coal Company and plaintiff in the settlement of the lawsuit, the railroad company had removed the three side tracks, situated upon the land then owned by plaintiff, as grantee of the MeClymonds heirs, and after the expiration of such time was proceeding to remove the side track upon its right of way; when this action was instituted by plaintiff to enjoin the railroad company from removing the last track, and also from carrying away the rails taken up from the other three tracks which were still upon his premises.

Two reasons are assigned by plaintiff why the railroad company has no right to take the last track up and remove the rails taken up from the other three tracks:

First, that under the lease the lessor’s right to take them up was within thirty days from the abandonment of the premises, and that the extension granted by the plaintiff under the settlement of the litigation between him and the Lisbon Coal Company did not enure to the benefit of the railroad company; and, second, that their tracks were such a permanent attachment to the surface that, upon the abandonment, they became absolutely the property of plaintiff. .

As to the first question: These tracks were put down by the railroad company at the special request of the coal company. Three of them were upon the lands of the MeClymonds heirs, but they were placed there under the provisions of the lease to the plaintiff as he well knew, he being the original lessee.

AVe see no reason why these side tracks should not be governed by the same principles as the tipples, tracks and other appliances used by the coal company and placed there by it directly, and that when the plaintiff extended the time of removal, such extension extended to the tracks of the railroad company, as well as to the appliances constructed directly by the coal company.

As to the second question, it is contended that in the reservation in the lease it was never intended that it should apply to such a permanent construction as the railroad tracks placed there for the purpose of transporting the coal. As to this question, we are of opinion that if there had been no provision in the lease that tracks could be removed, yet, there being a provision that the premises might be abandoned, the railroad company would have the right to remove its tracks when the abandonment took place.

The abandonment was a termination of the lease, and wonld give to the lessee and those claiming under him the right to remove any appliance used as a trade fixture.

What is a trade fixture depends very much upon the intention of the parties. Teaff v. Hewitt, 1 Ohio St. 511.

An entirely different rule applies as to tenants, and persons having a permanent interest in the premises. The tenant owns the property but for a limited time; his tenure usually is short; hence the law is very lenient to him and usually permits him to remove any improvement except those the removal of which would be attended by a substantial injury to the freehold estate.

In this case it was anticipated, as showp by the lease, that the lessee might abandon the premises and thereby terminate the lease.

The case of Wiggins Ferry Co. v. Railway, 142 U. S. 396 [12 Sup. Ct. Rep. 188; 35 L. Ed. 1055], is directly in point, indeed stronger than the case at bar, as it was an action at law for. compensation. The railroad company laid its tracks upon the premises of the ferry company with the ferry company’s consent and afterwards abandoned the same.

In that case it was said:

“We agree with the court below that the petitioner is not entitled to recover the value of the rails removed by the receiver from the premises upon Bloody Island. They were laid there under a mere easement granted by the petitioner, and obviously with no intention that they should become part of the realty. As between landlord and tenant, or one in temporary possession of lands under any agreement whatever for the use of the same, the law is extremely indulgent to the latter with respect to the fixtures annexed for a purpose connected with such temporary possession. It is incredible that it could have been the intention of the parties that the rails and switches laid upon this ground by the railroad company should become tjie property of the landlord, when, by the terms of the contract, the ferry company had the right to put an end to it at any time upon six months ’ notice. In Van Ness v. Pacard, 27 U. S. (2 Pet.) 137 [7 L. Ed. 374], it was held that a house built by a tenant upon land, primarily for the purpose of a dairy, and incidentally for a dwelling house for the family, did not pass with the land. The earlier authorities are reviewed in that case by Mr. Justice Story, and the conclusion reached, that whatever is affixed to the land by the lessee for the purpose of trade, whether it be made of brick or wood, is removable at the end of the term. Indeed, it is difficult to conceive that any fixture however solid,' permanent, and closely attached to the realty, placed there for the mere purposes of trade, may not be removed at the end of the term. In the case of Wagner v. Railway, 22 Ohio St. 563, it was held that stone piers built by a railroad company as part of its road on lands over which it had acquired the right of way, did not, though firmly imbedded in the earth, become the property of the owner of the land, as part of the realty; and that, upon the abandonment of the road, the company might remove such structures as personal property.
“So in Northern Central Ry. v. Canton Co. 30 Md. 347, it was held that the rails fastened to the roadbed of a railroad, as well as the depots and other building's, might, under certain circumstances, be treated as trade fixtures, and removable by the company, if the surrounding circumstances showed that at the time the rails were laid upon the land it was not intended that they should be merged in the freehold. In that case the road was built upon land under a license and permission of the owner. It is entirely clear that the rails in the case under consideration did not become part of the realty, and that the receiver was not guilty of waste in removing them from the land.”

The petition of plaintiff will be dismissed at his costs.

Burrows and Laubie, JJ., concur.


text:
    EVIDENCE — SLANDER.
    [Columbiana (7th) Circuit Court,
    October Term, 1906.]
    Cook, Burrows and Laubie, JJ.
    H. Mitchell Lambright v. State of Ohio.
    Evidence of Specific Act of Unciiastity Admissible in Prosecution fob Slander.
    Under Rev. Stat. 6828 (Lan. 10431), an indictment charging that the accused used, uttered and published a false and malicious slander of and concerning a female of good repute, with intent to cause it to be believed that such female was unchaste, evidence offered by the accused, of specific acts of illicit carnal intercourse on the part of the female, which came to his knowledge immediately before the speaking of the words, is admissible.
    [For other cases in point, see 5 Cyc. Dig., “Libel and Slander,’’ §§ 287-295. — Ed.]
    [Syllabus by the court.]
    ErroR to Columbiana common pleas court.
    J. Q. Moore and G. E. Davidson, for plaintiff in error.
    M. J. McGarry, prosecuting attorney, for defendant in error.
   COOK, J.

H. Mitchell Lambright was indicted and convicted of the crime of using, uttering and publishing a false and malicious slander of and concerning a female of good repute, with intern to cause it to be believed that she was unchaste under Rev.'Stat. 6828 (Lan. 10431).

The statute reads as follows:

“Whoever writes, prints or publishes any false or malicious libel of, or concerning another, or verbally uses, utters or publishes any false or malicious slander of or concerning any female of good repute, with intent to cause it to be believed that such female is unchaste, shall be fined not more than five hundred dollars, or imprisoned not more than six months, or both, but nothing written or printed shall be deemed a libel unless there is a publication thereof.”

During the trial the defendant offered to prove specific acts of illicit carnal intercourse on the part of the prosecutrix, which came to his knowledge immediately before the speaking of the words. This offer was rejected by the court on the ground that only the general reputation of the female for chastity could be attacked. In this we think the court erred.

Reliance is placed upon the case of Bowers v. State, 29 Ohio St. 542. That decision was made under Rev. Stat. 7022 (Lan. 10735), which is entirely different from the statute upon which the indictment was based in this -case.

Revised Statutes 6828 (Lan. 10431) provides that whoever “verbally uses, utters, or publishes any false or malicious slander of, or concerning any female of good repute,” etc.

In order to make the using, uttering and publishing of the words criminal, the words must be false or malicious. In this case they are averred to be both false and malicious. These averments, if necessary in charging the offense, must be proved.

The falsity of the words spoken raises a presumption of malice, and proof of their truth would tend to rebut the charge of malice. Evidence, therefore, showing that the female was, in fact, unchaste at the time of the speaking of the words was competent, as tending to disprove both charges in the indictment.

In an action for damages in a civil action for slander under a plea of justification, the defendant may prove that the words spoken were true and it will be a complete defense.. The plea of not guilty puts in issue every material averment of the indictment; and we, therefore, hold that the evidence rejected was relevant and competent, and its rejection prejudicial error.

The judgment will be reversed and a new trial ordered.

Burrows and Laubie, JJ., concur.


author: TAGGART, J.

text:
    CARRIERS — DAMAGES—STREET RAILWAYS.
    [Fairfield (5th) Circuit Court,
    September 21, 1906.]
    Donahue an.d Taggart, JJ.
    (Judge McCarty not sitting.)
    Scioto Valley Trac. Co. v. Jacob Craybill.
    Street Railway Company Liable for Conductor's Wilfully and Maliciously EJECTING PASSENGER' — PUNITIVE DAMAGES MAY BE ASSESSED.
    It is the duty of the conductor of a traction car to control and manage said car, and, if necessary to preserve peace and order, to eject a passenger from said car, but 'if the conductor, while in the line of his duty and while engaged in said employment, acts in a wilful and malicious manner toward a passenger, his employer, the traction company, is liable in damages. Such damages may be punitiye, as a corporation may be liable in punitive damages for an act of its employe under circumstances which would render a natural person liable in the same way if the same acts were committed by him acting for himself.
    [Syllabus approved by the court.]
    ERROR to Fairfield common pleas court.
    Daugherty & Todd, for plaintiff in error.
    C. W. McCIeery and M. A. Daugherty, for defendant in error.
   TAGGART, J.

In this case the defendant in error filed his petition in the common pleas court of this county, alleging that he had been wrongfully ejected from one of the ears of the plaintiff in error by the conductor, then being in the employ of said traction company, and that said conductor threw him on the floor of the car and dragged him off the car, wounding and cutting his face and bruising his person and otherwise injuring him. There are other averments in this petition which tend to set forth the complaint of the defendant in error, the plaintiff below.

The traction company files its answer and admits that at the time alleged the plaintiff boarded the car and delivered to this conductor a ticket which had theretofore been purchased from the company’s agent as a token of his right to a passage on said car. The answer further admits the averment that the plaintiff was ejected from the car by the conductor and claims that it was necessary to eject him by reason of the fact that he was' intoxicated and using profane and indecent language and that.no more force was used than was reasonably necessary to accomplish that purpose. The case proceeded to trial and judgment and a motion for a new trial was filed on behalf of the company.

But two questions are presented for our consideration:

1. That the verdict is excessive.

2. That the court was in error in its charge to the jury in the trial of said case.

The complaint as to the charge of the court and the right of the plaintiff to recover in this case rests upon the contention that the conductor was not engaged in the scope of his employment when he committed the assault upon the plaintiff, and that consequently the company is not liable for the unprovoked and unjustifiable assault of the conductor. The second question is a sequence to this — in that the company claims that they could not be held for punitive damages in c:n> the testimony shows that the assault was malicious, wilful and unpio-voked.

We think it clear from the record in this case that it was the duty of the conductor to control and manage said car and if necessary to eject a passenger from said ear for the purpose of preserving peace and order, and that if the conductor in the line of his duty and while engaged in this employment maliciously and wilfully committed^ the acts complained of, the company is liable.

The case of the Nelson Business College Co. v. Lloyd, 60 Ohio St. 448 [54 N. E. Rep. 471; 46 L. R. A. 314; 71 Am. St. Rep. 729], distinctly holds that,

“An employer is liable for the wilful and malicious acts of his servant done in the course of the servant’s employment.”
2. “When th® act complained of may or may not be, from its nature, in the course of the servant’s employment, and this depends upon the real motive or purpose of the servant in doing the act, it is a question for the jury to determine upon a consideration of all the circumstances adduced in evidence.”

We think it is clear in this case that the conductor was simply obeying the orders of the master when he undertook to eject an intoxicated man from the car and that if he added thereto any wilful wrong, the company became liable.

But it is contended that the company cannot b'e held for punitive damages in this class of eases. We think this question is answered by the Supreme Court in the case of Western Union Tel. Co. v. Smith, 64 Ohio St. 106, 117 [59 N. E. Rep. 890], wherein the court quotes with approval the following:

“That ‘a corporation may be subjected to- exemplary or punitive damages for tortious acts of its agents or servants done within the scope of their employment, in all cases where natural persons, acting for themselves, if guilty of like tortious acts, would be liable for such damages.’ ”

As to the question that this verdict was excessive, it is urged upon our attention that not much injury was done to t'he person of the plaintiff, that if the elements which constitute compensatory damages were alone regarded, the sum given by the jury in its verdict is outrageously excessive; and that the element of punitive damages must necessarily have entered into this verdict. This contention does not appeal strongly to this court. While this plaintiff may have been guilty of moral delietion before he entered the car of the company, yet the record does disclose that he conducted himself with moderation after the relation of passenger .and carrier had obtained. The jury was not called upon to weigh with golden scales and adjust with great exactness the injuries resulting from an unjustifiable and unprovoked assault and ejectment from the car in the manner in which this plaintiff was ejected by the servant of the company. The jury in their sound discretion were entitled to return such an amount as in their judgment seemed proper. And it does not seem to us that the verdict was rendered under the influence of passion and prejudice. The case was very ably tried and the trial judge was exceedingly careful in giving proper cautions and instructions to the jury, and his instructions to the jury were as favorable to the defendant company as it could claim it was entitled to have.

Judgment affirmed.

Donahue, J., concurs.


author: DONAHUE, J.

text:
    ADVERSE POSSESSION — EASEMENTS—EVIDENCE.
    [Fairfield (5th) Circuit Court,
    September 21, 1906.]
    Donahue and Taggart, JJ:
    Charles W. McCleery v. Henry F. Alton
    1. Building or Permanent Structure on Another’s Land Is Notice of Claim of Ownership — Owner Permitting such Erection without Asserting his Rights Left to i-iis Remedy at Law.
    The building of a permanent structure on another man’s land is notice of a claim of ownership and the occupancy of this- real estate with such an improvement is hostile and adverse possession, unless it be by virtue of a contract duly executed. Nor need this occupancy continue for the full twenty-one years, for if the landowner permit such building without protest or warning and without promptly asserting his right" he will be left to his remedy at law.

      2. Doubt as to Location oip Old Fence Resolved against the One Who has DESTROYED It WITHOUT CONSULTING ADJACENT OWNER.
    In an action brought to dispossess one who has built a new line fence over on plaintiff’s land from the strip thus acquired, the question whether the new fence has heen placed on the line of the old one will be resolved in favor of the plaintiff on evidence that defendant told plaintiff and one witness, on his attention being called to the location of the new fence -off from the old line, that the new fence was on the proper line as established by a recent survey, and made no claim that it was placed on the old line, as then was the proper time for him to assert the claim on which he later relied. Having destroyed the old fence without consulting the adjacent proprietor and- having removed the evidence of the location thereof, defendant will have all doubt resolved against him in such a dispute.
    8. Right to Maintain Projecting Eave Becomes Absolute after Twenty-one Years.
    The right to maintain an eave projecting over and above an adjacent owner’s land becomes absolute after twenty-one years’ enjoyment the same as the right to maintain a foundation or the rest of the superstructure.
    [Syllabus approved by the court.]
    Appeal from Fairfield common pleas court. .
    M. A. Daugherty and F. C. Acton, for plaintiff.
    William Davidson and W. T. McClenaghan, for defendant.
   DONAHUE, J.

This case comes into this court on appeal, and the petition and answer thereto simply raise the question as to the location of the old fence between the lots of plaintiff and defendant. The cross petition of defendant, however, raises the question as to the true line between these properties, at least as to that portion thereof corresponding to the length of the kitchen on plaintiff’s premises. Upon this cross petition it is sufficient to say that the evidence without conflict shows that this building has been erected for more than twenty-one years prior to the commencement of this action. A building of a permanent structure upon another man’s real estate is an adverse and hostile possession unless it be shown that it was under a contract and agreement executed under the laws of our state by which the right to do so was granted for a certain definite time, dr by mere license that precludes the possibility of claim of adverse possession. So that upon this cross petition the defendant must fail without reference to where the true lot line is. Indeed, it is not necessary that a structure of this kind should occupy for twenty-one years in order that a court of equity would refuse to interfere by injunction compelling its removal. For if the owner of a lot permits his neighbor to expend large sums of money in the erection of permanent buildings upon his property without protest or warning of any kind whatever, or without taking early and prompt action to assert bis rights, equity will not favor a late assertion of such stale rights and will leave the parties to their remedy at law, or where estoppel is pleaded will lean favorably to such defense.

In this ease, however, no such defense is interposed. The defense is placed solely upon occupancy for twenty-one years which at law or equity is a good and sufficient defense. So that upon this branch of the case the court has little difficulty.

Coming now to the principal issue joined between these parties— that is, as to the location of the old fence — the matter is not so easily settled, nor are we so certain in our conclusions, for there is a mass of conflicting evidence here that is hard to reconcile.

It is insisted in argument that even if the old fence were where plaintiff claims it was that the mere occupancy of the property up to> that line by plaintiff or his tenants without claim of right would nob prevent the placing of the fence at this time on the true line. In other words that the possession must be adverse, exclusive and hostile and under claim of right, but we do not find that issue made in the pleadings. The answer of the defendant insists that he is the owner of that property, not only because it is the true lot line where the fence now stands, but because he. and his predecessors in title have used and occupied it up to that place for more than twenty-one years, to wit: about forty years. Nor does he deny that the plaintiff used and occupied on the other- side of the fence up to where it stood prior to the change for an equal number of years. In fact both parties rest their contention upon their conflicting claims as to the location of the former fence. The evidence offered by plaintiff is clear, positive and convincing that the end of the fence at the southwest corner of the kitchen was at least fourteen inches to the west of its present construction. From that point to the rear of the lot the evidence is not so satisfactory.

It is true that there is evidence by the defense, disputing this location at the north end of this fence,- but the majority of plaintiff’s witnesses have more recent acquaintance with this fence and their memory therefore ought to be better. True, some of the witnesses who built this fence say that they knew at the time that, it was placed exactly upon the location of the old fence. That is very strong proof and but for some circumstances, we would not say that the plaintiff had furnished any preponderance of evidence upon this point. The first important circumstance to our minds is found in the evidence of Mr. Nixon who says that at the time this fence was being erected, he called defendant’s attention to the fact that it was not being placed on the line of the old fence, as he had agreed to place it and the defendant then insisted that he was putting it on the true line as established by the Wolfe survey, and at that time made no claim whatever that he was putting it on the line of the old fence. If he thought he was putting it on the line of the old fence, then was his time to make such con* tention. Again, when Mr. McCleery came upon the premises, he made the same complaint that Nixon had made to defendant, — that is, that it was not being placed on the line of the old fence, — and again defendant failed to make any claim that it was being so placed, but insisted to him that he was putting it on the true line as established by the Wolfe survey, and that he had the right to place it on the true lot line. This evidence is undisputed and to our minds it is of controlling effect, for that was the time that the evidence of the location of the old fence existed and that was the time for the defendant to make the claim upon which he relied. So we are forced to the conclusion that he then relied upon the true line and not upon the belief that he was establishing it on the line of the old fence.

And there is another circumstance of material aid, and that is that the defendant volunteered to disturb and replace that portion of the old fence then existing without consultation with the owner of the other lot or without there being any duty or obligation resting upon him so to do, and if in doing this he did so obliterate the line of the old fence that witnesses now disagree as to its exact location, justice and equity require that any doubt shall be resolved against him, for he is the responsible party in destroying the evidence upon which the court might have reached an absolutely correct conclusion as to the exact location of this fence.

On the other hand the defendant has offered some strong evidence as to the location of the old fence adjacent to his factory. We have taken the trouble to go upon the premises and examine what the defendant says is a remnant of an old post on the line of the old fence and also some holes that would indicate that they were some post holes of this old fence and undoubtedly there is much weight in his claim that this remnant of the old post was a part- of the old fence, and that the only difference now is, that the boards are nailed upon the opposite side of the post; but even conceding that to be the fact he had no right to go upon plaintiff’s premises to erect such a fence, but if he determined to erect that fence on his own responsibility, he must put it wholly upon his own premises. It is only where parties agree to a partition fence and join in its construction that it may be placed half and half upon the property of each.

There is also some pretty strong evidence offered in this case that the east side or end of the factory is now further to the west than the same side of the old factory, but from the transcript of the evidence, taken in the common pleas court in this case, it does appear that he testified positively that these lines were identical and that the new factory extended to the east side just as far as the old, and that being true it clearly appears that the old fence was not the same distance east of the old factory that the present fence is east of the, new. We are inclined, however, to believe that this new factory is probably a few inches west of the east line of the old. We cannot understand how it could be constructed in the maimer it was constructed without at least getting a few inches to the west, but upon the whole evidence, we think that the distance is very trifling and not more than two or three inches at best.

Upon the whole contention, therefore, we have reached the conclusion that a veiy small portion of the projecting eave at the southwest corner of the kitchen projects over defendant’s land, but that as we have already said, he is entitled to continue and maintain because of the fact that he has already occupied that space with this building for more than twenty-one years, and the right to maintain the projection becomes absolute, equally with the right to maintain a foundation or the rest of the superstructure.

We further think that the old fence throughout its entire length was fully fourteen inches to the west of its present location, and that the same finding and judgment may be entered here as was entered in the common pleas court.

The motion of the defendant for a new trial will be overruled and twenty days given for a separate finding of fact and conclusions of law and the statutory time for the filing of a bill of exceptions. Exceptions of defendant are noted as to each and every finding and ruling of this court herein and cause remanded to the common pleas court for execution.

Taggart, J., concurs.