text:
    SUFFICIENCY OF PLEA IN BAR..
    [Circuit Court of Lucas County.]
    Ed. Horner v. The State of Ohio.
    Decided, June 16, 1906.

      Criminal Law—Plea in Bar—Sufficiency of, a Question of Law—Defective Indictment—Variance—Section 7258.
    1. A plea in bar to a criminal charge does not present an issue solely for the jury; such a plea may be examined by the court as to its sufficiency, and if it be found that it is insufficient as a matter of law it may be so adjudged, and the jury discharged without prejudice to a further prosecution for the same offense.
    2. ' A plea in bar which merely sets forth that the defendant has been previously put upon trial on an accusation of the same offense, and does not set forth the indictment on which he was tried, or even allege that it was a valid indictment, is insufficient in law and presents no issue for the jury.
    3. Inasmuch as it can not be said that a second indictment charges the same offense as a previous indictment under which the defendant was properly tried before a jury, the court in the second prosecution can not take judicial notice of what took place at the first trial.
    4. A substantial variance is presented where an indictment charges ' the theft of property belonging to John W. E-, and a subsequent . indictment charges the theft of property belonging to Joseph W. E--, and a conviction or acquittal under the first indictment is not a bar to prosecution under the second indictment.
    Wildman, J. ■ Parker, J., and Haynes, J., concur.
    In this ease, plaintiff in error was indicted, tried and convicted, upon a charge of stealing money from one Joseph W. Emery. The indictment asserted the sum of money stolen to be $128 and the jury, by its verdict, found him guilty of stealing the sum of $100. The only claim of error is involved in the assertion of a former acquittal under a plea in bar by the defendant below and the action of the court thereon. The defendant filed the following plea in bar:
    ‘ ‘ The said Ed. ■ Horner, in his own proper- person, comes into court, and having heard the said indictment read, says that the said state of Ohio ought not to further prosecute the said indictment against him, the said Ed. Horner, because, he says, that heretofore, to-wit, at a term of the court of common pleas, in and for the county of Lucas, in the state of Ohio, of the January Term of 1906 [which, I should say, was a term prior to the one in which the indictment upon which he was tried and convicted was found], the grand jurors of said county, duly impanneled and sworn, presented their indictment against him for the same offense as is charged in the present indictment; that said defendant was duly arraigned in said court, on said indictment and pleaded not guilty thereto. That in the April, 1906, term of court, said cause was set for trial, and thereupon a jury was duly impanneled and sworn, in said cause, in said court, and the state adduced all its evidence against said defendant and rested its case. And the court, thereupon, of its own motion, and without the consent of the defendant, and without finding a sufficient reason therefor, discharged said jury and remanded said defendant to jail. The larceny set forth in said indictment is the same larceny as that set forth in the present indictment and the offense in the former indictment is the same identical offense as that set forth in the present indictment. Defendant has therefore been acquitted of said charge. The said defendant, therefore, prays that he may be dismissed and discharged from the premises in the present indictment specified.”
    To this plea the state replied, sayirig, “there is no record of any acquittal of the said defendant for the offense charged in the indictment herein.” There follows a general denial of each and every allegation of the defendant’s plea.
    In our code of criminal procedure the statute as to pleas in bar is embodied in Section 7258, which reads:
    “The accused may then offer a plea in bar to the indictment, that he has before had judgment of acquittal, or has been convicted or pardoned for the same offense; to this plea the prosecuting attorney may reply that there is no record of such-acquittal or conviction, or that there has been no pardon; the issue thus made shall be tried to a jury, and on such trial the accused must produce the record of such conviction or acquittal, or the pardon, and prove that he is the same person charged in the record or mentioned in the pardon; and he shall be permitted to adduce such other evidence as may be necessary to establish the identity of the offense.”
    The plea in bar and the replication having been filed, a hearing was had, as stated in the journal of the court:

      “This cause came on for hearing upon the plea in bar of the defendant, Ed. Horner, to the indictment herein and the replication of the prosecuting attorney thereto, and was argued by counsel and submitted to the court. And upon consideration thereof, the court doth find the said plea to be insufficient, and the allegations thereof not shown to be true, and doth overrule the same; to which action of the court the defendant, by his ' counsel, then and there excepted. And thereupon the said defendant, being present in court with his attorney, waived the reading of the indictment against him and pleaded not guilty to the said indictment. Thereupon a jury was impannelecl and sworn, a stenographer was ordered to report the evidence herein, at the request of both sides, and the trial began.”
    And the entry further recites the fact of the trial and the rendition of a verdict.
    At first blush it might appear that the issue presented by the plea in bar was one solely for the jury, and that no statutory . power was given to the court to pass upon the sufficiency of the plea. But while no provision is found in the criminal code for either demurrer to the plea or any other method of obtaining the judgment of the court upon its sufficiency, it is distinctly held, in the case of Hurley v. Stale, 6 Ohio Reports, 399, that a court did not err in sustaining a demurrer to a special plea in bar in a criminal case, where the court deemed the plea insufficient, and where it was in fact so. And in the case of Gormlcy v. State, 37 O. S., 120, it was held:
    “A plea of former conviction, which is insufficient in matter of substance, does not raise an issue for a jury, but may be adjudged insufficient on demurrer.”
    It is the policy of the law to take cognizance of the defects in an indictment, whether a demurrer is filed thereto or not, if those defects are such as to1 render the indictment insufficient, as not charging a crime. Of course, as to mere matters of indefiniteness, where the statute provides that to fail to file certain motions, a defendant shall be deemed to have waived his rights, the court coiild not, on the trial of the case, stop the introduction of evidence, or instruct the jury to find a verdict for the defendant, because of such defective indictment. It is analogous to the conditions that arise under the code of civil procedure, Questions as to jurisdiction of the subject-matter and the sufficiency of the facts to constitute a cause of action may be raised at any stage of the trial, or even in arrest of judgment; whereas, matters of mere form can not so be presented, but they must be called to the attention of the court in due season. If this plea in bar was insufficient, and if the court could so have adjudged it on demurrer, we have no doubt that the court would be equally justified, if the question were submitted to the court as to the sufficiency of the pleadings, .in determining it without a demurrer; that is, in examining it to ascertain whether there was any proper issue to. go to the jury.
    Examining this plea in bar, we find that it alleges that the defendant had been put upon trial at a former action upon an accusation of the same offense. But it is not alleged that the charge was made in proper terms of law so that a conviction could have been had. The plea says that an indictment was found; it does not say that it was a valid indictment—that it was sufficient in its terms as charging an offense properly, nor does it embody the indictment in the plea so as to apprise the court of its terms. The plea further says that the court discharged the jury without sufficient cause, but what the cause was is not stated. Now, to hold that it was the duty of the court to send such issues as these to a jury, would be to require the court to instruct the jury to pass upon the sufficiency of the court’s' action and upon the validity of the former indictment. As to the identifying of the offense, a question of fact might be presented ; but the sufficiency of the indictment, or its insufficiency, would be a question of law, to be determined by the court, and the sufficiency, or insufficiency, of the court’s reason for discharging the jury, after it had been impanneled and sworn would be a question of law, to be addressed to the court, rather than to the jury.
    Now, in order that the court might be apprised of the exact condition of the former record, the plea in bar should be so explicit that the court could pass upon the matter. Possibly in this case everything was shown to the court to enable the court to do it when'the plea in bar and the reply thereto were submitted to the court for its action; there is no bill of exceptions to show what was shown to the court. There is nothing to show of what the court took cognizance in passing upon the sufficiency of the plea. The court either had the former record or the court did not have it at the time when the court adjudged the plea in bar to be insufficient. Assuming, for a moment, that it was not produced—as it does not appear in the plea—we must examine, some of the authorities to determine whether it was requisite that it should be shown to the court.
    • In the case of Foster v. Slate, 39 Alabama, 229, it was held:
    “In a plea of former conviction or acquittal, it is necessary to set out the record, or at least the indictment. ’ ’ * * *

    In the case of Smith v. Stale, 52 Alabama, 407, it was held:
    “A plea of former acquittal interposed as to one offense, based on an acquittal on a trial for another charge, must set forth among other things, the indictment on which such trial was had.” * * *
    In the case of Evans v. State, 54 Arkansas, 227 (15 Southwestern Rep., 360), the court held:
    “A plea of former conviction is insufficient which does not verify the alleged conviction by the record, nor allege that it was for the same offense the second prosecution was intended to punish. ’ ’
    The plea here does allege that it was for the same offense, but it does not verify the statement by any production of the record.
    In the case of Washington v. State, 35 Tex. Crim. App., 156, (32 S. W. Rep., 694), it appears that:
    “Appellant was convicted of assault with intent to murder, and given two years’ confinement in the penitentiary, from which conviction he prosecutes this appeal. It appears from the record that appellant shot at one Edwards, missed him afid killed one Bláck. Appellant was tried and convicted of the murder of Black. Tie was then placed on trial under this indictment for an assault with intent to kill and murder Edwards. He attempted to plead in bar of this prosecution the judgment of conviction for the murder of Black.
    “If the plea had been in proper-form, containing what the law requires, it would have been a good plea in bar to the prosecution for this assault to murder, because everything that was done by the defendant, all of the unlawful intents and purposes which went to make up a case of assault to murder, were utilize-3 in the murder case. The state excepted to the sufficiency of the plea, and the court sustained the exception. It is well settled that a plea of former conviction or acquittal must contain the indictment, the verdict of the jury, and the judgment of the court. This record does not contain the indictment, nor the conviction and judgment, and there was no error in sustaining the demurrer to the plea. ’ ’
    And the court add, a little lower:
    “This record, as above stated, does not contain in any part thereof the indictment nor the judgment in the murder case, and we can not determine from this record whether the conviction was had upon a valid indictment, or whether judgment was even rendered upon that conviction.”
    In further support of this position reference should be made to the citation of counsel for the state: 1st Bishop New Criminal Procedure, Sections 809 and 810, Subdivision 2, page 474; and also Bishop’s Directions and Forms, Section 1043, page 593. “ITow is a record fact to be alleged?” Section 93, page 43.
    It is said by counsel that Laning’s Form Book has a form of plea in bar like the one in the present case, We have not had access to that. It is proper to note that these forms should be taken in both of these works for just what they are worth, as the opinions of compilers or book-makers; but, after all, they 'must be based upon correct principles and be properly supported by authority, to justify their use as authority to the court.
    Our judgment is that this plea in bar should have contained the indictment; but whether it should have contained also a copy of the journal, to show the action of the court on a former trial in discharging the jury from a further consideration of the case; whether that journal would have disclosed a sufficient reason therefor, it is unnecessary for us at present to consider. It is enough to say that the plea in bar should have set forth the indictment upon which the former partial trial was had.
    There is a case in Massachusetts (Commonwealth v. Bosworih, 113 Mass., 200), which, at first glance, would seem to run counter to the decisions to which I have made reference. The holding, as disclosed by the syllabus, is:

      “When an inferior court has jurisdiction of an offense upon property, if the value of the property does not exceed a specified sum, a plea of a former acquittal of such offense in the inferior court is a good bar to an indictment for it in a superior court, although the value of the property is alleged in the indictment to be a sum exceeding the jurisdiction of the inferior court.”
    It seems from an examination of the case that the indictment or the complaint was not embodied in the plea in bar in the second ease; but a further examination, and a more critical one, shows also that a plea in bar, in Massachusetts, without containing the indictment, is sufficient by reason of the statutory form of the plea in bar in that state provided. Judge Gray says, page 468:
    “The defendant’s plea in bar of a former acquittal before the Municipal Court of Taunton, of the same offense for which he now stands indicted in the superior court, is in the form prescribed by St. 164, c. 250, Section 4, and is therefore sufficient in form, without more fully setting out the record of that acquittal or the facts relied on to prove the identity of the former offense against him.”
    It might be urged, with an apparent slight show of authority, that the court should take judicial cognizance upon the latter trial of what previously took place under an accusation of the same character and which the plea in fact has alleged to be for the same offense, although upon an indictment rendered át a former term. There is a case in Texas (Foster v. State, 25 Tex. App., 543 [8 S. W. Reports, 664]), in which it was held:
    “Although a plea of former jeopardy and former conviction omits to set out the indictment and judgment referred to, and would therefore be fatally defective if both trials had been in different courts, such defect will not bar the defense of jeopardy and former conviction when both trials were in the same court, since the court takes judicial cognizance of previous proceedings in the case.”
    An examination, however, of the cases cited shows that the two trials were both upon the same indictment, so that the record of all the legal proceedings with reference to the indictment would apprise the court fully of all that had taken place upon the first trial. I will not stop to read from the ease any further than I have done.

      We think that where a defendant has been tried before one jury, upon one indictment, is again indicted and is tried upon the second indictment, it can not be said to be the same case; nor can the court in the second prosecution take judicial cognizance of the proceedings in the first.
    ' It is claimed that the statute of Ohio relieves the defendant from inserting in his plea in bar the indictment, or any portion of the record under which the former conviction or acquittal occurred. The statute, Section 7258, says:
    “The accused may then offer a plea in bar to the indictment, that he has before had judgment of acquittal, or has been convicted or pardoned, for the same offense.”
    But we are not of opinion that in the use of this general phraseology the Legislature contemplated the omission of the ordinary requirements of a plea in bar. It, was simply placing in the statute a provision as to a plea already recognized in criminal law, merely providing that one accused may properly set up a former acquittal, or a former conviction, in bar of a prosecution for the same offense. There is no attempt apparent in the section to define what shall be the proper form of such plea. We have found in Gormley v. State, 37 O. S., 120, and Harley v. Stale, 6 0., 399, the two"eases to which I have made reference, that it was the duty of the court to pass upon the legal sufficiency of the plea in bar. The court in this case did so, and announced its decision, and thereupon, it is said, overruled the plea. The defendant then entered a plea of not guilty, and the jury being impanneled, the case proceeded to trial, and a conviction was had, as heretofore stated.'
    Now, if counsel are correct in their contention, that this plea in bar, and the reply thereto, presented an issue for a jury, an that it was the duty of the court to send the whole matter to the jury to determine the issues of law as well as the issues of fact, a question might still be urged as to whether some further duty did not devolve upon the defendant in order to preserve his rights under the plea. In Section 7258, to which I have already referred, in the latter part of the section, it is provided:
    “The issue thus made shall be tried to a jury, and on such trial the accused must produce the record of- such conviction or acquittal, or the pardon, and prove that he is the same .person charged in the record, or mentioned in the pardon; and he shall be permitted to adduce such other evidence as may be necessary to establish the identity of the offense.”
    We have here no bill of exceptions showing what evidence was offered to that jury which was impanneled and sworn. There is no statement in the record that the'jury was impanneled and sworn simply to try the defendant upon the issue as to whether he was or.was not guilty as charged in the indictment, and our judgment is that even if it was the duty of the court—which we do not find—to send any matter concerning the former trial to the jury for its consideration, after the court had considered the plea to be insufficient, under those circumstances we think that in order to further preserve his rights the defendant should have followed the requirements of this section of the statute and produced the record of the former claimed acquittal and should have offered proof that he was the same person charged in the record; and then he might have introduced such other evidence as would have been proper, in order to establish -the identity of the offense, all this being denied by the reply.
    It is said in the petition in error that -“Said court erred in not submitting the issues joined on said plea in bar and replication of defendant in error to a jury.” We find no request that the court should do so, and no exception to the court’s not doing it. Presumably, if it was a proper issue to go to the jury, the court, if the request had been made, would have granted the request and have submitted the issue to a jury. All the presumptions are in favor of the correctness of the rulings of the court below, and in the absence of any showing of what was done by counsel or by the court, further than is disclosed by the journal entry before us, we are unable to say that the court did not have sufficient ground for the action which was taken in holding, in the first place, that the plea was insufficient, and in the second place, in submitting the case generally to a jury for its consideration. No instruction was requested from the court that the jury should find first as to whether or not the claims made in the plea in bar were true. There is nothing expressed in this statute that the same jury may not try both issues—it may or may not. It is not necessary, in our view of the case, to enter upon an inquiry as to the legal scope of the jury’s duty. But, as I have already said, there is nothing in the record or the statute to show that this jury was charged with the sole duty of determining the guilt or innocence of the defendant.
    We might go still further and examine the record which has been handed up, and consider the statements of counsel upon both sides as to what took place upon the former trial. We do not think that the record of the former trial has any proper place here, but the plaintiff in error has seen fit to submit it for our consideration, and under those circumstances we have examined it. We have listened to the statements of counsel, that the first indictment charged the stealing of money of one John W. Emery, instead of that of Joseph W. Emery, as in the second indictment. The written record does not fully apprise us as to whether it was a mere mistake as to the name of a person who was really sought to be described as the owner of the money stolen, or whether it was a mistake in charging the wrong person as the owner, but we are informed by counsel that there were, in fact, two men—one named John W., and the other Joseph W., and that in the first indictment the charge was really of stealing the property of John, while in the second indictment it was for the stealing of the property of another man —Joseph. Now, if all that be so, we think that an acquittal or conviction upon the charge for the stealing of the property of one would not be a bar to a subsequent prosecution for the stealing of the property of the other. It would require different proof; it would require different evidence as to ownership; and, having' these views, we think the judge upon the first trial was justified in taking the action which he did when it was discovered that the ownership was not in the person who had been named in the indictment as the owner. We think that a proper case arose for the application of Section 7303 of the Revised Statutes:
    “If it would appear at any time before verdict that a mistake has been made in charging the proper offense in the indictment, the jury may be discharged without prejudice to the prosecution, and the accused, if there is good cause to detain him, may be recognized to appear at the next term of the court, or, in default thereof, committed to jail; and in such case the court may recognize the witnesses for the state to appear at the same time and testify. ’ ’
    The case in 42 O. S., 383 (Mitchell v. Stale), we think, does not apply to this case, because there a conviction of the offense of an assault could have been shown by evidence adduced on either trial, or under either indictment. It was not so here. The finding of a person guilty under one indictment would not be equivalent to finding him guilty under the other, unless the variance was a more immaterial one—one not tending to the prejudice of the defendant—a variance as to names but not as tp persons. The court, on the former trial, found that it did tend to prejudice the defendant. The defendant was urging the mistake in the indictment as a ground for his discharge, and the court would not have been justified in discharging the jury on the former trial if it were an immaterial variance and one that did not tend to his prejudice. The court must have found that it was a material variance, and, so finding, deemed it a case for the application of this statute. There was an attempt to charge a proper offense but there was a mistake in charging it, because it was charged to be committed against another person than the real owner of the money. Ownership was a material fact in the indictment. Under such circumstances the statute should be applied in order to prevent a failure of justice. If the contention of counsel is correct, that the jury, instead of being discharged, should have been instructed to acquit, then on the assertion of such a mistake as this, there would be no possibility of convicting a man for a proper offense.
    We think, in view of all the circumstances of the case, and all the considerations urged by counsel, in argument, that it can not justly be said that this defendant has been twice placed in jeopardy for the same offense.
    Having fully considered the questions presented and naturally arising in the case, our conclusion is that the judgment of the court below should be, and it therefore is, affirmed.

      J. P. Crawford, for plaintiff in error.

      L. W. Wachenheimer, Prosecuting'Attorney, for defendant in error.


source: Caselaw Access Project

license: Public Domain

text:
    RIGHTS OF LESSOR. AND LESSEE IN FUND DERIVED FROM LAND WHICH HAS BEEN APPROPRIATED.
    [Circuit Court of Hamilton County.]
    Henry J. Good v. Charles F. Droste.
    Decided, July, 1906.

      Appropriation—Properly under Lease—Subsisting Liability of Lessee for Rent—Interest of Lessee and Lessor in the Award.

    Land under lease with privilege of renewal was condemned for railway purposes, and a jury fixed tile value of tile part taken with damages to tlie residue, and in answer to a special interrogatory found that $15 of the monthly rental of $315 was taken by reason of the appropriation. Thereupon the court, in, the order of distribution, impounded $1,200 of the share of the verdict awarded by the jury to the lessee for payment of rent during the additional term in the event the lease was renewed, or to be paid in full to the lessor in the event the lease was not renewed. Held: That this was error, and that the court should have determined the conflicting claims of the lessor and the lessee in the award.
    Giefen, J.; Jelke, P. J., and Swing, J. concur.
    This controversy arises upon the distribution of a fund awarded by the jury in proceedings to appropriate property commenced by the Trustees of the Cincinnati Southern Railroad.
    The defendant in error Droste, leased to the plaintiff in error, Good, two lots, one on the west side and the other on tlie east side of Carr'street in the City of Cincinnati, for a term of ten years from August 1, 1903, with the privilege of renewal for an additional term of ten years, at a yearly rental of $1,380, payable in monthly installments of $115.
    The trustees appropriated a strip of ground forty feet in width across the middle of the lot on the east side of Carr street. The jury awarded damages as follows:
    First. For the strip of land taken ............ $1,693,71
    Second. Value of the building ......• •.......... 1,800.00
    Third. Damages to the residue of the property.... 1,143.79
    Total $4,637.50

      and apportioned the same as follows: To Iienry J. Gobd, $2,864.50; to C. F. Droste, the owner, $1,773.
    In answer to a special interrogatory, the jury found that fifteen dollars of the monthly rental of one hundred and fifteen dollars was taken by reason of the appropriation.
    The court on motion of Droste impounded twelve hundred dollars of the sum awarded to Good to provide for the payment of rent during the additional term of ten years in the event the lease was renewed or to be paid in full to Droste in the event the lease was not renewed.
    It is held in the case of Foote v. The City of Cincinnati, 11 Ohio, 408, that the liability of a lessee to pay rent subsists, notwithstanding the leasehold has been appropriated for a street; but we see no good reason why the lessee should be held for rent during the renewal period before his election to renew. While the jury apparently allowed Good the full amount- of the rent at $15 per month for the additional term -of ten years, yet an analysis of the apportionment made by the jury will show this ^not to be the fact'. The present value of the annual rental of $180 for the balance of the original term, to-wit, eight years, upon a basis of five per cent, is according to the annuity tables, $1,156.17, which sum or its equivalent in monthly installments must be paid by the lessee to the lessor, and adding this sum to the amount awarded to the lessor, it amounts to $2,929.17, being $91.67 more than the jury awarded for the entire premises exclusive of the value of the building. Deduct the sum of $1,156.17 from the amount awarded to Good, and it leaves $1,708.33, which represents the sum awarded- to Good, as the value of his interest in the building; while the $91.67 represents the sum awarded to Droste for his interest in the building.
    Neither the jury nor the court found in terms the respective interests of the lessor and lessee in the building. It is contended by counsel for Good that he furnished substantially the entire sum. If this be true, then the apportionment made by the jury should be confirmed by the court; otherwise it should ascertain from the evidence the interest of each in the building for which the jury awarded the sum of $1,800, and render judgment accordingly. We think the court is authorized under the statute to determine the conflicting claims of the lessor and lessee. Slcerret v. Presbyterian Society, 41 O. S., 606.
    The judgment will be reversed and cause remanded for further proceedings.

      John C. llealy and Kelley & Ilaaclc, for Good, plaintiff in error.

      Charles F. Droste, for defendant in error.


text:
    DISCHARGE OF PRISONER FROM PENITENTIARY.
    [Circuit Court of Franklin County.]
    In the Matter of Application of Ira Bailus.

    Decided, June, 1906.

      Meaning of Hie Words “Period of Imprisonment”—Discharge of Prisoner—Restoration to Citizenship—Ministerial Acts—Section 7388-8.
    Wilson, J.; Sullivan, J., and Dustin, J., concur.
    The term “period of imprisonment” as used in Section 7388-8, of the Revised Statutes, means the term of sentence, less the time which, under the rules of the penitentiary, may be deducted for good conduct.
    The discharge of a prisoner by the warden of the penitentiary, and the restoration to citizenship by the certificate of the governor, under the provisions of said section, are ministerial acts and, to be effective, must be in compliance with law.
    The acts in this case were not in compliance of law and were a nullity. Otherwise these officers could discharge a prisoner at will.
    The original commitment was authority for the retaking of the prisoner.
    Judgment affirmed.

      Affirmed by the Supreme Court without report, 74 O, S., —


text:
    LOCATION OF DIVIDING LINE.
    [Circuit Court of Hamilton County.]
    August Puntt v. John Zimmer.
    Decided, June 9, 1906.

      Adverse Possession-^-Mistalce in Description—Title—Meaning of Phrase “With Half Section Line”—Injunction.

    1. Where the description contained in a deed reads “north with the half section line,” the phrase denotes direction and not necessarily that the line intended is identical with the half section line, and the line connecting the corners and not the half section liné must bo taken as the dividing line.
    2. But where it was believed by the grantor and the grantee that the corners were located in the half section' line, and both have acted on that belief, the grantee acquires title by adverse possession to the strip lying between the half section line and the true line. -
    Giffen, J.; Jelke, P. J., and Swing, J., concur.
    The plaintiff commenced this action to enjoin the defendant from trespassing upon or using his land as a driveway, and from erecting and maintaining a fence on or across his property.
    The road in controversy is located in the southwest quarter of Section 22, Town. 4, Range 1, in the Miami Purchase. The land described in the petition' and also in the deed offered in support of the plaintiff’s ownership, is east of and adjoining Section 22, no part of the same being within the boundaries of such section. The description of the plaintiff’s land begins evidently by mistake at the southeast corner of the section instead of the southwest corner. It is manifest, therefore, that the plaintiff has failed to make out a case and his petition must be dismissed.
    The defendant by answer, asks affirmative relief and prays that his title to said roadway, which was defined, by occupancy and user, and by the deeds conveying the same, be quieted against any and all claims of the plaintiff. The deed under which he claims title to the premises in controversy, contains the following description:
    “ Lying and being in County of Plamilton, State of Ohio, Township 4, Range 1, Section 22 in the Miami Purchase, beginning at the northwest corner of Joseph Nicholas land; thence north with the half section line 264 feet to common corner of Dorkholtz and’Denmons; thence west 20 feet on the line between Dorkholtz and Denmons; thence south parallel with the former line 264 feet or to the center of the County Road; thence east 20 feet to the place of beginning. ’ ’
    When the two corners called for in the deed are ascertained the line joining them will be the east line of the tract conveyed independent of the half section line, the words “with the half section line” denoting nearness or in the same direction as the half section line and not necessarily upon or along such line.
    The testimony, however, tends ■ to show that these corners were intended and understood to be upon the half section line, and the difficulty arises in the fact that at the time the deed for the strip of ground twenty feet in width was made, the commonly accepted half section line was about twenty feet west of the true half section line, and was so understood and recognized by all the adjacent land owners from 1874, the date of the deed, until 1902, when the plaintiff acquired title to his land. The defendant and his predecessors in title have been in adverse possession during all this time, believing that the accepted half section line was the true line, and have therefore acquired title by adverse possession. Yetzer v. Thomcm, 17 0. S., 130.
    A decree may be entered quieting the title of the defendant against all claims of the plaintiff for the strip of ground twenty feet in width so used and accepted by the defendant, each party to pay one-half of costs.

      Reemelin (& Ilosbrooh, for plaintiff.

      Schorr & Wesselmcm, for defendant.


text:
    PROXIMATE CAUSE OF INJURY FROM FALLING INTO EXPOSED MACHINERY.
    [Circuit Court of Lucas County.]
    Herman Bresewski, an Infant, etc., v. The Royal Brush & Broom Company.
    Decided, November 6, 1905.

      Negligence—Master and Servant—Proximate Cause—Where One Pell into an Unguarded Machine—Section 4364-890.
    Where an employe in stumbling over a block of wood falls into an unguarded machine, and is injured by having his arm drawn into the machine, it is not competent to separate the occurrence into two parts, and say that the block of wood was the proximate cause and the machine merely the physical agency which caused the accident but the case should be submitted to the jury as a whole to determine whether or not under all the circumstances the defendant might have anticipated an accident of that character resulting from leaving the machine exposed.
    Parker, J.; Haynes, J., and Windman, J., concur.
    This is an action to recover damages on account of personal injury to this infant. He was a boy fourteen years of age; he was empoyed by the Royal Brush & Broom Company, and while in their employ working in their factory in this city he fell, and, as he fell, his hand and arm went into part of the machinery and was caught by an unguarded belt and pulley or wheel, and was drawn into it and injured. It is averred in the petition that the company was negligent in that it allowed a certain block or piece of wood to remain upon the floor where he was at work, and that he stumbled over this and fell; and, further, that the company was negligent in that it did not keep the machinery guarded as required by the statute, and that this unguarded machinery was one of the causes of the physical injury he sustained.
    At the close of the plaintiff’s evidence, on motion of the defendant, the jury was directed, to return a verdict for the defendant, which was done, and judgment was entered upon it; and it is on account of this action that the plaintiff in error prosecutes error here. It was said by the judge of the court below, in passing upon this motion, that there was no evidence tending to show that the defendant was in fault in the matter of allowing the block of wood to remain upon the floor, and it fairly appears from the evidence that the floor was kept clean and in good condition, and that if this block of wood was on the floor, as charged by the plaintiff, that it had been there but a few moments, not more than five minutes, and it did not appear that the attention of the defendant had been called to it, or that by the exercise of ordinary care it would have been drawn to it within that time.
    It did appear, however, that this machinery was unguarded, that is to say, this belt and the wheel or pulley around which it revolved. The plaintiff below attempted to prove that it would have been practicable to guard it as provided by statute, but he was not permitted to do this, and no weight or consideration was given to the fact of the machinery being unguarded, because of the view this court entertained, that the fact that the machinery was unguarded was not a proximate cause of the injury.
    We are favored with the opinion of the judge of the court below and we observe that when he comes to discuss this matter fully and carefully upon the motion for a new trial, he states that the questions are two: First, was the defendant negligent in not enclosing the belt and pulley? and, second, if so, was that negligence the proximate cause of the accident? And, he continues:
    “As to the first question, Section 4364-89c, of the Revised Statutes, among other things, provides that the owners and operators of factories shall enclose all exposed cog wheels, fly wheels, band wheels, all main belts transmitting power from engine and dynamo, or other kind of machinery”—and then a hiatus on account of part of the statute not applicable—-“with substantial railing.”
    Section 4 of the act 4364-89c of the statutes mgkes a violation thereof a- misdemeanor 5 therefore the act is penal in its nafjiw, ]3tH; wliflihet' 1f Hhonh.l be HfrietJ/or Wmúlf twfcwcj is, in my opinion, of no importance, for -the reason that the provision above quoted states a rule of evidence, and nothing more' can be claimed for it. There is no evidence that the belt with which the plaintiff came in contact was a main belt, and the word pulley is not to be found in that portion of the statute, to which I have referred. That the omission of the word pulley was intentional and its apparent distinction between a pulley and a band wheel or fly wheel is evidenced by the fact that provision is made therefor by the subsequent portion of the section.
    Now, it seems to us, upon looking at this record, that tjhe learned judge must have been under some misapprehension as to the evidence that had been adduced. He says, “It will be observed that there was no evidence that the belt with which the plaintiff came in contact was a main belt. ’ ’ But one Charles A. Bassett was a witness for the plaintiff. According to his testimony, he was a man of experience in machinery and with machinery of this character, and in the course of his examination he is asked this question:
    “I will ask you how that machine was operated?” (I may say here that the machine in question on which the boy was hurt is technically called a sticker, it is a wood working machine).
    “ Q. I will ask you how that machine is operated ?
    “A. It is operated—do you mean driven?
    “Q. Yes, driven: how does it get its power?
    “A. It is driven by means of a belt over a line shaft very near over the machine, going to a countershaft to the machine. ’ ’ (I understand that to mean a counter-shaft which was part of the machine, a countershaft of the machine).
    “Q. Around what did the belt pass?
    “A. Around the pulleys, a large pulley on the main shaft and tight and loose pulley with the drive pulley of the machine.
    “Q. Those pulleys, what other terms or names is there for them—wheels?
    “A. Yes, sir; they are sometimes called wheels.”
    Then the court inquires:
    “Q. Do you mean a band wheel?
    ‘ ‘ A. Not in this case.

      “Q. These wheels, are they wheels pertaining to the machinery ? '■
    “A. Yes, sir.”
    So it will be observed that the witness testifies distinctly that the belt in question was a main belt; he also says that this was not a band wheel, or at all events, he answers, when asked if he means a band wheel, “No, sir; not in this case. ” I am bound to say that we do not understand this answer of the witness. It seems to us from an examination of the photographs, and from the little knowledge we have of machinery and from the description of the witness as already given of this machine, that the wheel in question was in fact a band wheel. There must have been, we think, some misapprehension upon the part of the witness when he gave this answer, or he did not mean what the answer wuuld seem upon its face to import. The wheel in question on the machine was what is called a tight and loose pulley, part of the wheel being tight to the shaft rim or face, the other part, perhaps half of the wheel being loose, s.o that when the belt connected with the main shaft is put over upon the part that is tight, it causes the machine to operate, but when it is moved over into' the part of the wheel which is loose, of course the wheel simply goes round and round on the shaft and the machine does not operate.
    Now, the statute on this subject is Section 4364-89c, and it provides in part as I have read from the opinion of the judge of the court below. 1 It will be noticed that it mentions among other things to be protected, “exposed cog wheels, Ay wheels, band wheels, all main belts transmitting power from engine to dynamo, or other kinds of machinery,” etc. And we understand that a band wheel mentioned in this connection is such a wheel as is under consideration here, a wheel that is otherwise described as a pulley. The judge below thought not, because he says that, in another part of the section, pulleys are specifically mentioned and provision is made therefore. But the only other provision in the section where pulleys are mentioned is this, “the guarding of all saws and other wood cutting and wood shaping machinery, providing shifters for shifting belts, and poles and other appliances for removing and replacing belts on single pulleys, and adjusting runways and staging used for oiling and other purposes, more than five feet from floors with hand railing and providing eountershafting with tight and loose pulleys, or such other suitable appliances, in each room separate from the engine room,” etc. There is no. other provision for the guarding of pulleys unless it is to be found in this provision, and we think it is. The judge speaks of fly wheels and band wheels as if they were similar parts of the machine; but we understand that they are quite different, that a fly wheel is not a band wheel and a band wheel is not a fly wheel; that a pulley upon a machine over which a belt or band passes, by which the machine is operated, is a band wheel; that it can not well be'anything else.— the very name of. the wheel implies that. I read from the Standard dictionary the definition of pulley—one of the definitions, ‘ ‘ pulley, a wheel usually flat faced, or nearly so, driving, carrying or being driven by a leather belt or the like; sometimes called a belt pulley.”. And from Webster’s Dictionary, under the head of pulley, “A wheel with a broad rim or grooved rim for transmitting power or imparting power to the different parts of mach'inei’y or for. changing the direction of machinery by means of .a flat belt or round cord or loop. ’ ’ And we all know that the danger in and about a belt and pulley is the fact that the belt may draw one into the pulley, and that it is by reason of being drawn between the belt and pulley that injuries frequently occur; and we have no doubt but what it was the purpose of the Legislature to guard against accidents of this character. And they could not enclose this kind of a wheel or guard the belt without at the same time guarding the pulley. It is sufficient, however, for the purposes of this case upon this point to say that there is evidence in the record tending to show that this is a main belt, and that a main belt must be guarded is clear from the statute.
    The fact that this main belt was not guarded clearly appears; there is no dispute about it. If an injury resulted to this boy in 'consequence of the belt not being guarded, or the pulley and belt, the condition of it affords some evidence of actionable negligence. What degree of evidence under the decisions of this state, we are not prepared to say; we do not feel called upon to say. It is sufficient for the purposes of this case to furnish some evidence. In some jurisdictions it is evidence of itself per se negligence; in some jurisdictions it raises a presumption of negligence; in others the term prima facie case of negligence is used. But certainly it furnishes a scintilla of evidence upon which a case, so far as that feature is concerned, should go to the jury. For rules on the subject and citations and decisions of different states, I cite Section 13, Shearman & Redfield on the Law of Negligence. There have been some holdings along this line by the circuit courts and other courts inferior to the Supreme Court of the state; but our attention has not been drawn to any declaration by the the Supreme Court.
    That leaves, then, for consideration, we think, only the question which the learned judge has mentioned as the second question in'the case. We think in deciding what he called'the first question, that he must have overlooked the statement of the witness that this belt was a main belt. „
    Now, this young man was working at this machinery; there were many machines on the floor; it was a large factory, a large floor. ITe was engaged in carrying blocks of wood from one side of the building part way across the building, down a broad aisle to another machine called a shaper. He had been carrying during the forenoon of the day from a certain corner of the room, which did not require him to go very near to this machine, called the sticker, where he was afterward injured. The blocks had all been carried from that part; he was required to go to a place near the wall immediately in the rear of this machine; and' his direct way to carry these blocks over to the shaper where he was required to carry them was to use the alley way between this sticker and another machine, a broad, comfortable, safe place, apparently, something like five feet six inches in the clear; but as he was passing through there with his first load of blocks, which appears to have interfered somewhat with his seeing—for the blocks were piled up as high as his nose, as he testifies—he came to the vicinity of this machine and fell; he either stumbled or slipped or his ankle turned or something happened that he fell, and as he fell, this machine being to the right of him, he threw out his arm in some vfay; the machine was in operation and his arm was caught be'ween the belt and the pulley and wrenched and injured.
    The.court below was o£ the opinion that the fact that the pulley was not guarded was not a proxii (ate cause of the injury, and the same line of argument is purs led by counsel for the defendant in error, that the proximate cause of the accident was this block of wood which caused tl e boy to fall, that the proximate cause of the injury, the physical injury to the boy may have been the failure to guard the machine; but that the failure to guard the machine was not the proximate cause of the accident. By this course of reasoning the so-called accident is divided for purposes of analysis into the accident of falling and the result of the accident, to-wit, the getting of his hand and arm into the machine and thereby injuring it. It seems to us that this division is not allowal le, and is not warranted; that the whole occurrence comes within the description of the accident; that it was a cohtinuoús series of events, following one upon the other, the natural sequence of each succeeding event being dependent upon that which preceded it; and that the accident consisted not only in slipping and falling towards the machine, but in falling into the machine and in having the arm drawn into the machine and injured; and that while the falling or stumbling over the blocks may have been a sufficient and effective cause of the first part of the accident or falling toward the machine, the fact that the machine was not guarded and that the boy’s hand and arm were thrown into it, whereby it was injured, was a proximate cause of that part of the aech dent.
    The purpose of this statute, as we understand it, was and is to prevent just such occurrences and guard against them; that was the purpose of a great many of the provisions that we find in the statute relating to the guarding of machinery and the management of factories, and we suppose that there may be many cases where the primary movement, which results in an injury from such a machine, may be a pure accident or an inadvertence, and that the companies not observing this statute, the employer not observing this statute may be liable for the consequences of such accidents. It is intended to guard against accidents and injuries resulting from one making a misstep,, making a false move as he is at work about these dangerous machines, and if the employer can in all cases escape liability by showing that there was some other cause of the first primary movement, the initial movement, leading up to the ultimate accident and injury, then it is quite evident that the statute has served its purpose. By way of illustration, the statute on tho subject of building may be mentioned, the statute that certain counter-floors shall be placed in buildings as they are in process of construction, Section 4238-20, which requires that:
    “Whoever being the owner, lessee, agent, factor, architect, or contractor being engaged in and having supervision and charge of the building, erection or construction of any block, building or structure of more than two stories in height, who shall neglect or refuse to place or have placed upon the joists of each and every story of such block, building or structure above the second, as soon as the joists are in position, counter-floors of such -quality and strength to render them perfectly safe the going to and fro thereon of all mechanics, laborers and other persons engaged upon the work of construction or the supervising the same, or in the building or placing of materials therefor, shall be deemed guilty of a misdemeanor, and upon conviction thereof in any court of competent jurisdiction, shall be fined, ’ ’ etc.
    Now, it can be imagined in a case of that kind, where one is working upon part of the building that is not floored as the statute requires, he may fall, and by reason of the floor not being below where he falls, he goes on down through. lie is not injured by the fall, for the floor is not there. He is not injured, it may be said, by the absence of the floor, that is to say, not precisely that—he is injured by coming to a sudden stop upon something beneath. It would be like the story we have heard of a workman upon a building falling down some thirty or forty feet. He said he was not injured by the fall, but he was jarred considerably by the sudden stop he made when he reached the ground. Now, we suppose that in a case of that kind, although one may inadvertently fall through the space’ where the floor should be, although he may step upon something whereby his ankle turns, he suddenly falls, that liability can not be escaped from ■ on the ground or theory that the primary cause of the accident was some inadvertent or accidental movement that he made, which caused him to fall.
    In a case like this one at bar, to be sure if one keeps away, from the machine at a safe distance, he will be safe, he will not be hurt, the machine will not travel to him, it will keep its place; but it is to be anticipated that a man will go near these machines and a sudden gust of wind will draw his clothes into the machine. Of course, if a person gets into a machine by a movement that is negligent on his part, that would be a defense; but if he is not negligent, if by mere inadvertence, when he is going about his work, by pure accident he falls into the machine, we are of the opinion that liability can not be escaped upon the theory that there was something lying back of the fall that brought him in contact with the machine; that that thing lying back, that primary cause is not only the proximate cause, but the only proximate cause of the injury.
    We had occasion to consider this subject with some care in the case of Ziehr v. The Maumee Paper Company, 7 C. C.—N. S., 144. That was an accident in many respects like this. In that case there were unguarded cogs. Ziehr was working in the .vicinity of them. The floor was slippery. There appeared to be no negligence upon the part of the defendant in having the floor slippery; that seemed to be unavoidable in the kind of work they were doing. But Ziehr slipped and threw out his hand for protection, and he came in contact with these cogs and was injured. We held in that case that the fact that the cogs were unguarded was a proximate cause of the injury, although the primary cause, and one of the proximate causes, was the slipping upon the floor, on account of which there would be no liability. And in the course of the opinion, by Judge Hull, in that case, a number of decisions are cited and some of them are commented upon, and in the course of that opinion reference was made to the ease of BlicMey v. The Milner Company, a case in which Mr. Blickley, while passing along the sidewalk in Jefferson street, fell into the area way by the side of the Milner building and-was injured. It was unguarded; the. area way was in the sidewalk, the place where an elevator was constructed to take goods into the cellar and out of the cellar; and although the primary cause of that accident was the slipping upon the icy sidewalk, yet we held that one of the proximate causes of the injury was the failure of the Milner Company to guard this area way. Our decision in that case was reversed by the Supreme Court; there were two grounds urged for a reversal, one that we were in the wrong upon the doctrine of proximate cause, the other that the record disclosed that Bliekley was guilty of contributory negligence. The decision of the Supreme Court was not reported, and we are, therefore, in ignorance of the real grounds upon which the Supreme Court decided the case. Rut until we are better informed, we feel like adhering to that doctrine. We feel that we were right in that case, and that we were right in the case of Ziehr v. The Maumee Paper Company, which is now pending in the Supreme Court; and upon the authority of these cases we feel that this ease, so much like them, especially so much like the case of Ziehr v. The Maumee Paper Company, must be decided in the same way, at least until we are better informed. Therefore, the judgment of this court will be that the judgment of the court below be reversed and the case remanded.
    We do not mean to hold that the failure to guard the machine was, under the circumstances, as .a matter of law, a proximate cause; but simply that it was a question to be submitted to the jury to say whether or not, under all the circumstances, the company might have reasonably anticipated an accident of this character resulting from this exposed machinery.

      Ashion Coldham, for plaintiff in error.

      King & Tracy and II. W. Lloyd, for defendant in error.


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    DOMINION OVER. CHATTELS CONSTITUTING CONVERSION.
    [Circuit Court of Hamilton County.]
    H. L. Mackey, Doing Business as the Cincinnati Mortgage Loan Company, v. The George W. McAlpin Company.
    Decided, March 17, 1906.

      Conversion—Facts Constituting•—■Where Chattels are ¡Seized by Mortgagee—Holding Prior Lien.

    The taking possession hy a mortgagee of chattel property upon which another holds a prior lien affords ground for an action for conversion.
    Swing, J.; Jelke, P. J., and Swing, J., concur.
    This action comes into this court on error to the judgment of the court of common pleas. In that court, the George W. McAlpin Company brought suit against the plaintiff in error for the sum of $272, being the alleged value of a certain piano, which the said George W. McAlpin Company claim was their property, and which was wrongfully converted by the said plaintiff in error. In that court the case was tried to the court without the intervention of a jury, and the court rendered judgment in favor of the plaintiff in error for the full amount claimed.
    The principal error relied upon by plaintiff in error in this court is that the judgment of the court was not sustained by sufficient evidence. In the case of Railroad Company v. O’Donnel, 49th O. S., page 489, the following statement is made in the second proposition of the syllabus:
    “Any wrongful exercise of dominion over chattels in exclusion of the rights of the owner or withholding of them from his possession under a claim inconsistent with his rights, constitutes a conversion.”
    The evidence in this ease shows that the McAlpin Company had a mortgage on the property for the amount claimed. It also shows that the plaintiff in error had a mortgage on the property in the sum of $34.50; that the mortgage of the MeAl-pin Company was prior in date to the mortgage of the plaintiff in error. One Mr. Berry was a general owner of the piano, having purchased the same from the George W. McAlpin Company, and said Berry had possession of the property. He moved out of the building in which he resided and in which he had the piano, leaving the piano, without notifying either the Mc-Alpin Company or the plaintiff in error. Thereupon plaintiff in error took possession of the piano and removed the same from the building, and stored the same with one Pagels. It fairly appears from the evidence that at the time plaintiff in error took possession of the property, he had no personal knowledge of the prior lien of the McAlpin Company, but shortly after he took possession of the piano, he was informed by the attorney of the McAlpin Company that the McAlpin Company had a prior lien; that the mortgage was on record.
    Some time after this, the McAlpin Company made demands on plaintiff in error for the property, with which demand plaintiff in error refused to comply. He not only refused to comply with the demand for the return of the property but also refused to inform the McAlpin Company where the piano was. More than a month after the piano was taken possession of, the McAlpin Company brought this suit as for a conversion.
    It seems to us that these facts clearly bring the case within the rule of law as announced in the-case above referred to. While the evidence does not disclose that at the time the plaintiff in error took possession of the property, there was any intention to assert any dominion over the property to the exclusion of the McAlpin Company, yet such really was the fact, because the McAlpin Company had the prior claim to the property, and it seems to us that if plaintiff in error intended to disavow its taking upon the discovery of the fact, even if he was not chargeable by the facts as disclosed in the record, it was incumbent upon the plaintiff in error to have disavowed the claim and to have tendered to the McAlpin Company the piano. But instead of doing this, he still persisted in exercising dominion over the property in defiance of the claim of the McAlpin Company, and thereafter the McAlpin Company were justified in treating the act as one of conversion as far as they were concerned.

      Judgment will therefore be affirmed.

      Phares, Gusweiler & Rosenberg, for plaintiff in error.

      D. P). Woodmansee, for defendant in error.


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    INJURIES UPON A PASSENGER INFLICTED BY A CONDUCTOR,
    [Circuit Court of Fairfield County.]
    The Scioto Valley Traction Company v. Jacob Graybill.
    Decided, September 21, 1906.

      Tort—Master and Servant—Electric Railways—Liability of Company for Injuries to a Passenger—Ejected from Car Maliciously and Without Justification—Scope of Conductor’s Employment—Punitive Damages.

    1. It is within the scope of employment of the conductor of a trolley car to control and manage the car and to eject a passenger when necessary to preserve peace and order in the car, and where in so doing a malicious assault is committed the company is liable ' therefor.
    2. Where one who became intoxicated before entering a car, but conducted himself with moderation after the relation of passenger was established, was subjected to an unjustifiable and unprovoked assault and ejectment, a verdict in his favor will not be set aside because for a substantial sum and> out of proportion to the physical injuries which he sustained.
    Taggart, J.; Donahue, J., concurs; McCarty, J., not sitting.
    • In this ease 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 cars 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 ear, dragged him off the car, wounding and cutting his face, 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 the 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 on the trial of said case.
    The complaint as to the charge of the court and the right of the plaintiff to recover in this ease, 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 it could not be held for punitive damages in ease the testimony shows that the assault was malicious, willful and unprovoked.
    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 car 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 willfully committed the acts complained of the company is liable.
    The ease of The Nelson Business Gollege Company v. Lloyd, 60 O. S., 448, distinctly holds that: “an employer is liable for the willful and malicious acts of his servant done in the course of the servant’s employment.”
    2. “When the 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 fl. question for the jury to determine upon a copñklmit.ioii of fill tile tiiTunifihiuwM mUlitfTt! in i'Y'KkWi" ¥c 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 ear, and that if he added thereto any willful wrong, the company became liable.
    But it is contended that the company can not be held for punitive damages in this class of cases. We think this question is answered by the Supreme Court in the case of The Western Union Telegraph Company v. Smith, 64 O. S., at page 117, 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 tortious damages.”
    As to the question that this verdict is excessive, it is urged upon our attention that not much injury was done to the 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 deliction 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 on to weigh with golden scales and adjust with great exactness the injuries resulting from an unjustifiable and unprovoked assault and ejectment from the ear 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.

      Dcmglmiy $ Tockk for plaintiff In orror,
    W, Mx>(ikwii ami M, ,1, íh pvjw,


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    BENEFITS FROM STREET IMPROVEMENT.
    [Circuit Court of Hamilton County.]
    George W. Lanfersiek v. City of Cincinnati et al.
    Decided, June 20, 1904.

      Street—Improvement of, Which Benefits the Public Rather Than the Abutting Owner—Building not Erected for Corner Lot Purposes— Increased Light and Air.

    Increased light and air resulting from a street improvement can not be considered as a “benefit” arising from the improvement.
    Giffen, P. J.; Jelke, J., and Swing, J., concur.
    The plaintiff is the owner of a lot fronting on Jefferson avenue and abutting 150 feet on Nixon street, which was assessed for the improvement of the street by grading, setting curbs and crossings, flagging and paving gutters, macadamizing the roadway, and constructing the necessary culverts, drains and retaining walls. Five annual installments have been paid, and the plaintiff now seeks to enjoin the collection of the remaining five installments, on the ground that the property received no special benefits in excess of the amount paid. ■
    The dwelling-house which is situated on this lot was built before Nixon street was opened, and was not designed for use and occupancy upon a‘corner lot. The approach to the premises from the side street is made difficult and inconvenient by reason of the steep grade. The chief benefit to the property consists in the improved appearance of the surroundings rather than any additional use appurtenant to the land. The real benefit from the improvement is derived by the public, and not the abutting owner.
    Much of the testimony that the premises had been increased in value by reason of the improvement was based on the theory that the added light and air was a substantial benefit. But this was assured without the improvement, and can not therefore be considered. We are of the opinion that the special benefits received do not exceed the installments paid, and that the collection of those remaining should be enjoined.

      Charles E. Tenney, for the plaintiff.

      City Solicitors, contra.


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    DISPUTED TITLE.
    [Circuit Court of Lucas County.]
    George Challen v. John V. Martin et al.
    Decided, November 25, 1905.

      Deeds—Ambiguity in—Giving liise to Uncertainty as to Dividing Line— Agreed Line Becomes the Established, Linet When—Not Contrary to the Statute of Frauds—Erroneous Lines Distingttished from Uncertain Lines.

    In a suit in equity, where the parties on both sides are seeking to quiet their title to a strip of intervening land, and the court is confident from the evidence that the purpose of the original grantor was to give to his two sons-in-law equal portions of the disputed strip, and it was so understood by them, and a line midway .of the strip was acquiesced in by them as the dividing line, and the occupation has not been of such a character as to give title by prescription, a decree will be granted making such line the established boundary between subsequent grantees and heirs, notwithstanding an ambiguity in the original deeds gives color to the claim of the plaintiff to a legal title in the whole strip.
    Parker, J.; Haynes, J., and. Wildman, J., concur.
    The case of George Challen v. John Y. Martin et al is in this court by way -of appeal. ■ I can not do better, perhaps, than by reading- the pleadings.
    The petition states that the plaintiff is the owner in fee simple of the northwest quarter of Section No. 19, town three north, of range No. 9 east, in Jackson township, Wood county, Ohio; that said northeast quarter contains one hundred and seventy-nine acres, and that each of the defendants as widow and heirs at law of Robert M. C. Martin, deceased, claims some estate and interest adverse to plaintiff in and to east nineteen acres of said northwest quarter; but plaintiff avers that each of said defendants had no estate or interest whatever in and to said quarter section, or in and to any part thereof. Wherefore, plaintiff prays that he may be adjudged the owner in fee simple of said premises,’ freed from all claims or estate or interest therein of said defendants and each of them, and that he may have all other relief to which, in equity, he may be entitled.

      The defendants, for answer to the petition of the plaintiff, say, that John V. Martin, Fannie Helper, Charles E. Martin, Eliza E. Sargent, Isaac Martin, Annie C. Derr, Jennie Lease, and Samuel Martin are the only heirs at law of Robert M. 0. Martin, deceased, and that the defendant, Barbara Martin, is his widow; that on the 27th day of October, 1862, Abraham Kagy, who was then the owner in fee simple of the north half of Section No. 19, township three north, range .nine east, containing three hundred and thirty-eight acres of land, deeded to Daniel Spitler the northwest quarter of said section, which said deed set forth as containing one hundred and sixty-eight and 86-100 acres of land, to Robert M. C. Martin, the northeast quarter of said section, which said deed set forth as containing one hundred and sixty-nine, and 45-100 acres, intending thereby to divide said half-section equally between said Daniel Spitler and Robert M. C. Martin; that said deeds to Daniel Spitler and to Robert M. C. Martin were recorded on October 27th, 1861, and were recorded in Volume “T,” pages 404 and 405, of the records of Wood county, Ohio; that the said Daniel Spitler and Robert M. C. Martin, ascertaining that the north and south quarter-section line did not divide said north half of said quarter section in two equal parts, and that the northwest quarter of said section contained one hundred and seventy-eight acres of land, and that the northeast quarter contained one hundred and sixty acres, entered into an agreement to have a line established dividing said half-section into two equal parts, and that the said Robert M. G. Martin should be the owner in fee simple of the land in said half-section lying east of said line, and that the said Daniel Spitler that lying west of said line; that thereafter, in the year 1879, in pursuance of said agreement, the said Daniel Spitler caused said line to be established and the corners of said two tracts of land were set 2.36 chains west of the west line of the northeast quarter of said section; that the survey establishing said line is recorded in the records of the surveyor of Wood county, Ohio, as survey number 776; that said Daniel Spitler was the grantor, through his heirs, to the plaintiff herein, of said northwest quarter of section number nineteen, township three north, range nine east; that since the year 1879 they have had open, notorious and adverse possession of nine and 45-100 acres off the east side of the northwest quarter of said section east of the line as established as aforesaid; that since the date of the conveyance of the northeast quarter of said section to Robert M. C. Martin, the said Robert M. C. Martin and his heirs have paid the taxes on the said nine and 45-100 acres off the east side of the northwest quarter of said section, amounting with interest to the sum of $—; that said defendants are the owners of said strip of land off the east side of the northwest quarter of said section 2.36 chains wide, containing nine and 45-100 acres of land.
    And the defendants allege that before the plaintiff parted with any valuable consideration for the said northwest quarter of said section, the plaintiff had knowledge and notice of the defendants’ claim to said premises. The defendants deny each and every allegation in the petition contained, not expressly admitted herein. And for further answer to the petition the defendants say, that in the year 1903 the plaintiff rented of the defendants the said strip of land off the northwest quarter of said section, 2.36 chains wide, containing nine and 45-100 acres of land, and that the possession of said plaintiff of said premises is the possession of the defendants. Wherefore, the defendants pray that they may be adjudged to be the owners in fee simple of said strip of land off of the east side of the northwest quarter of Section No. 19, township three north, range nine east, 2.36 chains in width, containing nine and 45-100 acres of land, free from all claims or estate of the plaintiff, that the title of the defendants thereto may be quieted as against the plaintiff, and to all relief to which, in equity, they may be entitled.
    For reply to the answer and cross-petition of the defendants the plaintiff represents and says to the court: That he admits that the parties named in said answer are the only heirs at law of Robert M. C. Martin, deceased; admits that on the 20th day of October, 1850, Abraham Kagy, by deeds duly executed, and who was then the owner in fee simple of the north half of Section No. 19, town three north, range nine east, deeded to Daniel Spitler the northwest quarter of said section, and to Robert M. O. Martin the northeast quarter of said section; admits that said deeds so executed were recorded in Volume “T, ” pages 404 and 405 respectively, of the records of deeds of Wood county, Ohio; admits that Daniel Spitler, through his heirs, was the grantor to plaintiff herein of the northwest quarter of said Section No. 19, township three north, range nine east, but denies each and every other allegation in said answer and cross-petition made, set forth and contained and not herein specifically admitted. And for further reply herein plaintiff says, that in the original survey of the north half of Section No. 19, the excess therein over and above eighty acres for each half quarter section in said north half of said Section No. 18, contained under said original survey ninety-eight acres of land; and since the time of said original survey no change has been made therein. Wherefore, plaintiff prays as in his petition herein.
    It appears from the pleadings, as well as from the evidence, which we have here, that the controversy' is about a strip of land containing about nine acres, lying along a part of the east side and off a part of the northwest quarter of section nineteen in Jackson township. The action is brought by the' plaintiff to quiet his title to this strip of land. The defendants on the other hand assert their ownership to the strip, and they desire to have their title quieted. It appears that this land was conveyed by the United States government to Andrew Iiite by two patents of the date of August 10, 1837, the patents conveying to him all the north half of that section; the one patent covering the north half of the northwest quarter, and the north half of the northeast quarter, containing one hundred and - sixty-nine and forty-two-hundredths of an acre; the other patent covering the south half of the northwest quarter, containing eighty-nine acres and forty-four hundredths of an acre, and the south half of the. northeast quarter, containing eighty acres. It appears from these patents that the amount of land contained in these tracts was about a hundred and sixty-nine acres. In one it is mentioned as 169 and 44-100 and the other 169 and 42-100, but in this discussion I will omit the fractions because they are not essential. I shall only say that what is said about them in the description confirms the view that we take as to what was intended b,t the parties.

      By certain conveyances the title to all this north half of the section was vested in one Abram Kagy about the middle of the last century. Kagy was the assignee of all this north half of the section, and by two deeds of a certain date, October 27, 1852, he conveyed all of this north half of the section to his sons-in-law, Spitler and Martin. To Spitler he conveyed the northwest quarter of the section, and to Martin he conveyed ■the northeast quarter of the section. It seems that he was aware of the fact that there was in this half section more than three hundred and twenty acres; that it overrun about eighteen acres. His purpose seems to have been, however, to divide the tract evenly between his two sons-in-law. It would appear from the deeds that they were purchasers and paid equal consideration for the amount conveyed to them; so he describes the amount conveyed to one as being one hundred and sixty-nine acres, or about that, and the amount conveyed to the other as a hundred and sixty-nine acres, or about that. As a matter of fact, the government survey, which was shown to us and is in evidence, discloses signs of this overplus to the west eighty acres of this half-section, and perhaps if there was no more in these deeds than a description of these subdivisions of the survey, the part deeded to Spitler would have carried the whole overplus of eighteen acres, and the deed to Martin would have carried the hundred and sixty acres; and perhaps it is true that even with what appears in the deeds in addition to the description of these subdivisions that legal title to no more than one hundred and sixty acres was 'conveyed to Martin and that legal title to one hundred and sixty acres and that additional eighteen acres was conveyed to Spitler, but we have to consider here more than the bare naked legal title of the parties; it is a suit in equity and the equitable, action of the court is invoked and required.
    Notwithstanding what may have been the result with respect to the legal title, we are entirely confident from the evidence that the purpose of Mr. Kagy was to give to each of his sons-in-law an equal portion of this tract of land and that it was so understood by grantor and grantees. The plaintiff in the case has, by conveyances, become the owner of the portion conveyed to Spitler; the defendants in the case are the owners of the northeast quarter of the portion conveyed to Martin. Mr. Challen, the plaintiff, became the owner of the northwest quarter some two years ago. In 1879 Martin and Spitler came together and took to their aid a surveyor and undertook to divide this property up in accordance, apparently, with their understanding of their rights in their respective deeds. They knew where the government survey located the line-between these quarter sections; they knew where that line was, that was used as a starting point from which to determine a new line to divide their two tracts of land, and a new survey was made locating the line about eight rods west of the line of the government survey. The width of the strip, I believe, is 2.36 chains.
    It does not appear to us from the evidence that there has been any adverse possession of this disputed strip, which is the east, nine rods, since that time; that is to say, we do not find the grantors of the plaintiff have occupied it at any time in an adversary way. Nor do we find that the grantors of the defendants or the defendants have occupied it in such a way that they could have acquired a title to it by prescription. That part of the territory has, during most of these years, been undeveloped, uncleared, and woodland, and in no fit condition for cultivation. A little strip upon the north part was cleared up some twenty or twenty-two years ago, but the most of it has during most of these years since the survey was made been woodland. There has been no fence run between the lines since this survey was fixed by stones set. What was done suggesting any adverse claim appears to have been done by mistake of the occupiers or by acquiescence. The intention of the parties was to fix this line between them and to claim up to the line ever since, and this has been done by each and has been done by acquiescence of the other in each case. There has been no dispute about that. The mutual intent and purpose has been quite manifest.
    It has been urged on behalf of the plaintiff that this has not been effective to transfer the title of these nine acres to the defendants ; that this is not a question of fixing a disputed boundary; not a question of fixing a boundary line at all, but it is a question of an attempt to transfer the title to nine acres of land from one to another.

      We do not take that view of it. We think there is enough in the deeds from Nagy to give rise to the doubt of the ownership of this strip of land; that the description of the number of acres in the deed was enough to give rise to an ambiguity, that the fact that these parts were described as subdivisions of the section is not enough to vest with absolute certainty so that there can be no doubt about the line between the tracts, and whenever there is such uncertainty, the authorities are clear that the parties can fix the line, and this would not be contrary to the statute of frauds. It seems to us from the consideration of certain cases cited to us that even if this were not so, even if it were a matter of admitting of uncertainty, that still the parties might agree upon the line of demarkation between their respective tracts, and holding up to such line for twenty-one years would fix the title of the parties up to the line.
    I can not take time to review the authorities that have been cited. I will say that the cases cited will be found in 7 O. S., 99; 21 O. S., 258; 21 O. S., 115; 16 N. Y., 354; 128 U. S., 691; 35 Pa. St., 409; 30 O. S., 417; 17 O. S., 130. We have examined these cases and other case's. In the case of McAfferty v. Conover, in 7 O. S., 99, which was an action in ejectment,. Judge Swan, in starting out in his opinion, says:
    “No doubt the rights of these parties could be readily adjusted, and upon just principles in a court of equity. Our inquiry now is: What are their rights at law ? ’ ’
    And so he proceeds to inquire into that question, and, reading from page 106:
    II Thus where the true lines are in fact unquestionable, and parties, by mistake, agree upon an erroneous line as their boundary ' line, and suppose the line agreed upon to be their true line and fence to it, their acts and declarations do not operate in the nature of- an estoppel. A party will not forfeit his estate by a mere mistake; nor can the statute of frauds be thus evaded. Something more is required to transfer the title. If there has been acquiescence, adverse possession, and improvements made in accordance with such erroneous line, under such circumstances as that the owner is chargeable with gross negligence amounting to fraud, .an estoppel in pms may probably permanently establish the erroneous line. ’ ’

      Well, that is not in this ease. It is not a ease of an erroneous line being agreed upon by mistake of the parties. The parties with their eyes wide open agreed upon these lines. Judge Swan, continuing, says:
    “There is another class of cases where the line between the owners of land can not with certainty be ascertained; and because uncertain, they agree upon and establish the line. Such agreement settles the line; not by estoppel, but by agreement. ’ ’
    A case very near like the kind of a case referred to by Judge Swan, is that of Bobo v. Richmond, found in 25 O. S., 115, and yet the case differs in this that there was not an uncertainty about the true line. It is similar to the case at bar in other respects; that is to say, there was not an uncertainty as to the true line of survey of these quarters. Nevertheless, the court held in that case where parties agreed upon a line and held up to it that that should determine their rights. I shall not take time to read from this decision, but I will call attention to the dissenting opinion of Judge Mcllvaine, emphasizing the point that was decided in court. On page 126, he says:
    . “The grounds of dissent will readily appear from the above statement of the case. It will be observed that the ease, as presented to us upon the record, as I understand it does not involve any question under the statute of limitations. The defense of twenty-one years of adverse possession must be regarded as having been abandoned by the defendant. Such was the effect of his disclaimer made in open court, at the trial. Nor does the judgment rest upon the doctrine of ‘an agreed line.’ There is no pretense that there was doubt or dispute, at any time, as to the location of the true line between the east and west halves of the quarter section.”
    Judge Mcllvaine seems to have entertained the idea that is urged by counsel for plaintiff, that in order that the doctrine of “an agreed line” shall take effect, there must be doubt, dispute and uncertainty. We think that there was ground for doubt here, but we do not deem that essential in view of this decision of the Supreme Court.
    The equities of this ease, it seems to us, are very clearly with the defendants. The 'plaintiff bought with the understanding that he was only receiving a hundred and sixty-nine acres, and he paid a certain price per acre, and only paid for a hundred and sixty-nine acres.
    Soon after he bought this land- he conceived the idea that he had .title to this strip. If he had' the legal title to it, it was purely technical. The equities are against him, and our view of the matter is, to conclude without further discussion, that the petition should be dismissed, prayer denied, and decree in favor of the defendants upon the cross-petition.

      Edward B overstock, for plaintiff.

      James 0. Troup and F. P. Riegle, for defendants.


text:
    TITLE BY ADVERSE POSSESSION.
    [Circuit Court of Fairfield County.]
    Charles W. McCleery v. Henry F. Alton.
    Decided, September 21, 1906.

      Adverse Possession—Evidence as to Line of Old Pence—And of the True Dividing Line—Injunction against Maintainance of a Structure—Will Not Lie, When—Ripening of Rights Through the Erection of a Permanent Structure Without Protest—Title—Evidence.

    1. In the' absence of a license which precludes .the possibility of a claim of adverse possession, or the execution of an agreement in accordance with law granting the right of occupancy for a fixed period, the placing of a permanent structure on the land of another constitutes adverse and hostile possession under which title may be claimed after twenty-one years.
    2. Moreover, if the trespasser is permitted to expend a large sum of money in the erection of a permanent building without protest from the owner of the land, or any attempt by the owner to assert his rights for a long period, equity will not favor a late assertion of such stale rights by injunction, but will leave the parties to their remedy at law, or if estoppel is pleaded will lean favorably toward such a defense.
    3. The right to maintain the projection of the eaves of a building over the land of another becomes absolute at the end of twenty-one year, equally with the right to maintain a foundation or superstructure.

      Donahue, J.; Taggart, J., concurs.
    This case comes into this court on appeal; and the petition and answer thereto simply raises 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, or 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 Lwenty-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 his 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 case, 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 ease 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 as easily settled, nor are we so certain in our conclusions, for there is ¿ 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 not 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 it 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 atttention 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 wás putting it on the line of the old fence, then was his time to make such contention. 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 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 defendant 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 factoiy is probably a few inches west of the east line of the old-. We can not understand how it could be constructed in the manner it was constructed ívithout at least getting a few inches to the west, but upon the whole evidence, we think that the distance is very trilling and not more than two or three inches at best.
    Upon the whole contention, therefore, we have reached the conclusion that a very small portidn 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.
    Wie 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.

      M. A. Daugherty and F. M. Acton, for plaintiff.

      William Davidson and W. T. McClenaghan, for defendant.