author: HAYNES, J.

text:
    DEATH — EVIDENCE—NEGLIGENCE.
    [Fulton (6th) Circuit Court,
    May 29, 1907.]
    Haynes, Parker and Wildman, JJ.
    Geneveve Smith, Estate of, v. Frank J. Curtis.
    "What Amounts to a Scintilla op Evidence.
    Scintilla of evidence sufficient to warrant the sending of the questions in issue to the jury, in an action for the recovery of damages for the death by wrongful act, may be circumstantial; but it must be of such a nature as to show a reasonable probability that the injury complained of was the direct result of the alleged negligence.
    [For other cases in point, see 4 Cyc. Dig., “Evidence,” §§ 3787-3800; 6 Cyc. Dig., “Negligence,” §§ 666-680. — Ed.]
    [Syllabus approved by the court.]
    Error to Fulton common pleas court.
    A. H. Coldham and Cornell Schreiber, for plaintiff in error.
    Files & Paxson, for defendant in error.
   HAYNES, J.

This case comes into this court upon a petition in error to reverse the action of the court of common pleas in directing a verdict for the defendant at the conclusion of the plaintiff’s testimony.

The ease has been very earnestly argued by counsel for plaintiff in error, and we have endeavored to give it very careful consideration and have discussed it at some length. I shall not, however, go into an ■extended discussion of the testimony, but content myself with speaking ■of the leading points in the case.

It may be premised at the outset that it involves a close question under the system of practice in this state. It seems* that on a certain day last November Mrs. Smith was injured by the explosion of a can of ■oil or a mixture of oil and gasoline. She lingered for a period of nine days before she died. Her evidence, of course, is not taken, and under the rules of law statements made by her could not be given in evidence in this case, so that what she had to say in regard to the occurrence is a closed book. The case before the court rests largely upon the testimony ■of the defendant Curtis and the husband of Mrs. Smith and her daughter, her daughter being about thirteen years of age.

The injuries or burns received by Mrs. Smith were severe and were confined largely to points above the waist and to the face.

The contention of the plaintiff is, that this daughter of Mrs. Smith, went to the store of the defendant and asked for coal oil, and it is claimed that the defendant gave her oil that was mixed with gasoline. It is stated in the testimony of Mr. Curtis that he had received a barrel of gasoline the day before and that his clerk, in pumping it into another receptacle, had put it in with certain coal oil by mistake, and that he had ascertained that fact a short time before this young girl came in to-inquire for the coal oil, and he claims, in his testimony, that he directed his clerk to draw the oil from a coal oil receptacle that contained oil that was sold at a price of sixteen cents a gallon and sell it to her at eleven cents, being the price of the oil that she usually purchased and the price of the oil that had been mixed with the gasoline. And he claims that after giving the order he followed the clerk to the room where the oil was kept and saw him drawing it out of the receptacle, and that he knows he drew it from the receptacle which contained the sixteen cent oil.

The girl testifies that, after she had inquired for the oil, some conversation occurred between Mr. Curtis and his clerk in regard to the matter of oil, but what it was she could not state or repeat even the substance of it, but she cláims that Mr. Curtis remained in the part of the store which is denominated the dry goods store or dry goods part. of the store and that he was not where he could see the clerk when he drew the oil and that he did not go, as I understand her testimony, near that part of the room.

The oil was taken home and the girl filled the lamps from it that, evening, and a portion of it remained in the can, which is a half-gallon can, I believe, and it was set down a distance of about eight or nine feet from the stove, and remained there until the next afternoon; the time differs, but it would seem until about five o ’clock in the afternoon. This was in the month of November. The girl was working at the hotel and was not at home much of the time. At the time Mrs. Smith was burned nobody seems to have heard any explosion. The alarm was given, and certain men who were working in the vicinity ran to the building, and one of them testifies. Her husband was telephoned to and came home in a few minutes and found his wife at a neighbor’s. Everything-at that time was, of course, in confusion. The fire had been put out and the stove, it was said, was deluged with water which had been poured in.

It was claimed on behalf of the plaintiff that there was an odor of gasoline detected about the fluid that had been used in the coal oil lamps. It was claimed that there was a burn in the corner of the room where the can had been placed-and that the ceiling there was burned. At the time when the can was picked up, it was in front of the stove some five or six feet. The bottom was gone, but it was otherwise in its natural condition. The can is in evidence. It is a small can. .The bottom is off, as stated. The top that screws on is on the can, and it seems that there is in the nozzle through which the fluid is poured out a little ball, that, whenever the oil is poured out, falls down into the orifice and is supposed to restrain any odor or gases from escaping from the oil into the room.

These are the leading outlines of the case. After this testimony had been given, the court stated its reasons for giving the decision it did, but the fact was, it directed a verdict by the jury for the defendant, and the sole question for us is, whether or not he erred in doing so, or whether there was sufficient evidence to constitute what is sometimes called a scintilla of evidence to go to the jury, upon which the jury could have been called upon to pass.

It is urged here by counsel for plaintiff in error that a case may be proved by circumstantial evidence. We do not doubt that. But there are rules in regard to that binding upon the court and upon which courts act. The evidence must be such that the court'can act from established facts to well-defined conclusions. They are not allowed to conjecture nor to speculate. They are not permitted to theorize about the matter, excepting when they have definite facts that are well established they may reach from those to conclusions in regard to the cause of the accident, and it is required by the Supreme Court of Ohio that they should be definite and well fixed, and they have held in a case that has been cited to us, Lake Shore & M. S. Ry. v. Andrews, 58 Ohio St. 426 [51 N. E. Rep. 26] ; Bailway v. Andrews, 64 Ohio St. 614, in what appeared to be a pretty conclusive case of circumstantial evidence, that the facts did not prove or authorize the jury to draw the conclusions that they did draw from them.

Now, there is, of course, this contradiction between the defendant in error and this young woman here testifying. It is claimed that that, is a matter which should go to the jury and there is some force in the-""estion. But that is not the whole case. The weakness of the case-chat there was not sufficient evidence to enable the court to say, as-a cieuuction from the facts, that the accident happened by the explosion of the gasoline in this can by being ignited from the fire in the stove. Ti[ie evidence given in relation to the position of the can, the location of the burns on the body of Mrs. Smith, and all these matters, were all before the jury and are all before the court, and from them all the court. ■has to be able to point out a definite conclusion sustained by the facts ■and by a logical sequence. And after we get through reading this record ■and sit down to talk about it we are still in the land of conjecture; the •cause of the accident may have been one of a number of things. Before •a man can recover of another for alleged negligence, he must show that the negligence of the party caused the injury, and we think that the •court was right in its conclusions that the evidence submitted to him lacked this quality, that it lacked certainty or reasonable probability that the accident occurred in the manner in which it is claimed by the plaintiff, and that therefore the plaintiff’s claims should fail. It was .a sad accident, but in finding who shall be liable civilly for the results •of that accident, we must pay attention to the rules of evidence and the law of the case. We therefore affirm the judgment of the court of com.mon pleas.

Parker and Wildman, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CRIMINAL LAW — OFFICE AND OFFICERS — TRIAL.
    [Wood (6th) Circuit Court,
    March 4, 1907.]
    Haynes, Parker and Wildman, JJ
    Elmer L. Spafford v. State of Ohio.
    1. Effect of Comment on Matters not in Evidence.
    Where a prosecuting attorney, in his closing argument to the jury' in a case where the guilt of the defendant of the offense of which he is convicted is not free from doubt, refers to a paper he supposed had been put in evidence but on objection and investigation it was found not to have been so introduced, and his remarks are such, when taken in connection with contents of the document, as woúld tend to create ■ such an impression on the minds of the jury of the guilt of the defendant as would not likely be removed by a mere charge by the court and a request by the prosecutor himself, to disregard the incident, the conviction should be set aside and a new trial granted.
    2. County Surveyor Cannot Charge Extra Time for His Services.
    A county surveyor performing services for the county does not come within the purview of Lan. Rev. Stat. 7306 (B. 4364-62a) fixing a day’s work for mechanics and laborers at eight hours, and when on a calendar day he devotes more than eight hours to such service he may not charge the county for such excess in addition to his regular per diem, or as hours of another day.
    [For other cases in point, see 3 Cyc. Dig., “Counties,” §§ 137, 138; 7 Cyc. Dig., “Surveyor,” §§ 7-11 — Ed.]
    3. Surveyor May Charge Fuel Rate Per Diem for Deputies.
    ' Such surveyor is entitled to payment at the rate of four dollars per day for all the days of service of his deputies, though he may not have been required to pay his deputies at that rate or for all their days of service.
    4. Actuat. Service, not Estimates Per Mile, Control Surveyor’s Compensation.
    A county surveyor is not authorized to estimate and charge the county for the days of his services upon a given ditch or other improvement upon the basis of a certain number of days or hours per mile, but his charges must be based upon the days of actual service.
    [For other cases in point, see 7 Cyc. Dig., “Trial,” §§ 255-278. — Ed.]
    [Syllabus approved by the court.]
    ERROR to Wood common pleas court.
    Baldwin & Harrington, for plaintiff in error.
    J. E. Ladd, for defendant in error.
   PER CURIAM.

In December, 1906, an application was made to two members of this court on behalf of the plaintiff in error for a stay of execution of the sentence herein requiring his imprisonment in the Ohio penitentiary, so that said sentence might not be carried into effect pending the hear- " ing of the cause by the court at its next session, to wit, in April, 1907.

After bearing and considering tbe statements of counsel as to tbe alleged-’ error's- and the questions involved in tbe record, it seemed to the two judges that tbe questions were so important and their proper solution so doubtful that it would not be expedient or just to permit sentence to be carried into execution until the eoprt could have an opportunity to hear full argument and give careful examination to the questions involved, and, therefore, the usual order in such cases, C e.r for a stay of execution, was made.

Since then the prosecuting attorney has applied to the full membership of this court for an order setting aside said order of ¡suspension, and we have been asked to make such full investigation of the case as is usual upon final hearing, to the end that the prosecuting attorney may have the advantage of our views upon certain questions involved, in the prosecution of other cases, civil and criminal, pending in the court of common pleas of Wood county, Ohio; and, upon his suggestion; that it may be of assistance to him in expediting said business if we will express our views upon such questions now, instead of waiting until April, we have acceded to this request and have made a careful examination of the record, and have given consideration to the arguments of counsel and the authorities by them cited, besides many other 'authorities bearing upon the questions argued, and other questions that seem to be involved in the case. We can take no action in the way of either affirming or reversing the judgment herein, until the circuit court as such, sits in April, but we may foreshadow the action that it now seems to us we will be required to take at that time, though the. opinion now expressed is not final, but we will hold ourselves at liberty to change or modify the same if persuaded that we .should do so upon further argument.

We shall not now discuss all of the questions presented or examined, but it may be understood that we have found nothing in this record that seems to us to require- a reversal of the judgment, except as herein specifically pointed out. It is made apparent by the result of the trial that one of the important questions of fact, if not the chief question that was submitted to the jury .for its determination, of which a proper solution was doubtful, was, whether the plaintiff in error, Spafford, had knowingly and corruptly made excessive charges for the services of himself and his assistants as engineers upon a certain ditch, to wit: The Hutson joint ditch, an improvement promoted by Wood and Hancock counties, upon which Spafford, county surveyor of Wood county, was employed as engineer.

The prosecution was under Rev. Stat. 7075 (Lan. 10807), and the specific charge in the indictment was, in substance, that Spafford had made out and presented for allowance a bill wbieb included a charge for the services of his assistant, W. H. Wood, for 21 days at the rate of $4 per day, making $84, whereas Wood had served but 11 days, on account of which Spafford was entitled to $44 and no more, so that his bill was excessive and fraudulent to the extent of 10 days or $40. It appears that the same bill in which the aforesaid charge was made on account of the services of Wood upon this ditch, contained a charge for 45 days at $4 per day, for services performed by Spafford, and 45' days at $4 per day for services of another assistant (all upon the same ditch), so that the whole charge was for 111 days, or $444.

By the testimony of Wood; it was shown that he had kept a private memorandum of the time of his service upon this ditch, and that while he had worked on fifteen calendar days thereon, he had reckoned some of said days as fractional, or parts of days, whereby the total number of days of service, or working days, were by him computed as 11 days only. Within the period comprised in this service, i. e., between November 25, 1903, and January 12, 1904, Wood performed other service» of like character for Spafford, but on other jobs or improvements, and early in December, 1903, he made a report to Spafford of the days he had worked on different jobs in November, 1903; and likewise early in January, 1904, he made a report for December, 1903, but it is not clear from the testimony of Wood, nor from any evidence in the case, that by any accounts, reports, statements, settlements or other means, Wood made it plain to Spafford, before said account was presented by Spafford, that any one of the 15 calendar days he reported that he had worked on this ditch were reckoned by him, or should be computed a» fractions, of days instead of full days, or that he reported the number of hours that he worked on any of the so-called fractional days. The importance of this will be pointed out farther on. It is shown by the undisputed testimony of several witnesses that while at work, on the Hutson1 ditch, Spafford and his assistants were crowded and hurried by their work,, so that they often started out upon their work quite early in the morning and did not quit until late in the evening, and sometimes would not reach home until long after nightfall, and, besides, they felt obliged to, and did work thereon Sundays and nights, so that if Spafford might lawfully reckon the days of service of himself and his assistants according to the statutory rule provided for laborers and mechanics, that is, at eight hours for a day (as his counsel contended he might properly do) many of the calendar days upon which they were so employed would have yielded from one and a fourth to one and three-fourths of such work days; and it is not apparent that by such method of computation less than 111 days were so devoted to this work by Spafford an<3 bis assistants. Again, it was contended on behalf of Spafford that in employment of the character of that in which he was so engaged, the law reckons as a full day every calendar day upon which he performed any service, even though 'the number of hours of such service might not equal those required to make up a full work day in the case of a common laborer or a mechanic; and there was testimony tending to show that there was a custom among surveyors and engineers to charge on that basis, and we have been cited to some authority tending to support that view of the law. Again, it was testified by Spafford that on works of the character of the Hutson ditch, it has been the custom of the office for many years to reckon the time of the engineer thereon at a certain number of days per mile, a rule and method which he claimed resulted in a fair average, and which was made necessary by the impossibility of keeping an exact account of the time employed •on any certain improvement, especially in the office work, because of the constant interruptions to which the engineer and his assistants were subjected in being required to drop one job or improvement to take up another for a time; and it appears that, charging according to such alleged custom (as he says he did) the charge for 111 days was not excessive. Spafford also testified (and in this he was supported by other witnesses) that the work on account of which the 111 days were charged was not all completed on January 12, 1904, when the bill was presented, but that a large part thereof was performed subsequently to said date; and he says that at the time 'the bill was presented it was made known to the commissioners that it covered not only the services already performed but an estimate of the time that would be required to complete the necessary preliminary engineering work for the ditch; and( he declares that though too many of the 111 days may have been attributed to Wood in his account and estimate, this érror was immaterial, since 111 days were not excessive or an overcharge for the services of himself and his two assistants engaged upon the work, even though the rule as to a certain number of days per mile were not applied. All these claims and contentions on behalf of Spafford were disputed by the state, and evidence was introduced by the state in opposition thereto, and all .were properly submitted to the jury upon the question whether the charges were in fact excessive and unauthorized.

The court refused to charge the jury that the statutory rule of eight hours constituting a day applied to the engineer or his assistants, but charged them that any custom in that behalf shown by the evidence to prevail amongst engineers and surveyors, should control. Upon this subject we have to say generally that we find no error in the statement of the law by the trial judge; and we cannot say that the jury was not fairly warranted in finding SpafEord guilty of knowingly making charges in some degree excessive and unauthorized, and therefore fraudulent; but, as the evidence stood at its conclusion, it is apparent that there was room for honest doubt in the minds of the jury as to whether SpafEord had willfully perpetrated the fraud and crime charged, and, if so, whether he had presented a bill that was known to him to be excessive, and which was, therefore, fraudulent, for as much as $40, or for as much as $35.

We think it probable that the jury was brought to resolve this doubt against the accused by either or both of two circumstances, to wit: First, a failure of the jury to appreciate the importance of determining the exact amount for which the bill might be deemed fraudulent, and therefore to note the uncertainty of the evidence before mentioned as to the information possessed by SpafEord of the number of working days devoted to this work by Wood at the time SpafEord presented his bill; and, secondly, by an unfortunate reference of the prosecuting attorney in his closing argument, to matter not in evidence, but which the prosecutor apparently supposed was in evidence. It is to be remembered that the guilt of the accused must be shown by the evidence produced at the trial, and the evidence must show guilt so clearly as to-produce in the minds of the triers a moral certainty of guilt admitting of no reasonable doubt thereof. While, as before státed, we are not.persuaded that the proofs in the case do not meet these requirements so as to warrant the con'clusion of SpafEord’s guilt of some offense, we are persuaded that they do not warrant his conviction of knowingly presenting a bill that was excessive to the extent of $40, or for as great an amount as $35.

The whole charge and the only charge against the plaintiff in error, and the only matter the jury had a right to consider, was that respecting the 21 days on account of the services of Wood on this particular ditch, and as set forth in the particular account wherein it appears. Whatever other offenses of like character on the part of SpafEord the testimony may show him to have committed, and however much the amounts involved therein, no part thereof could properly be added to the amount that was fraudulent in the bill of January 12, 1904, or could have been considered legitimately in this case, except as the same may have reflected light upon the knowledge, motive or intent of Spaf-ford in making up and presenting this bill. Looking at the evidence bearing on this subject, we find, as before stated, that Wood worked on the ditch on 15 different calendar days; that he so reported to SpafEord, but we fail to find that he reported to SpafEord that some of these days were but fractional work days, or that he had not worked enough hours 031 any of said days to justify tbeir being reckoned as whole work days. It might be fair to infer that Wood did make this known to Spafford if this were a civil action, and the probability that he .did so, in such a .case, might be strong enough to support a verdict based thereon; but that he did so, is not shown with the degree of certainty required to support a conviction in a criminal case.

A significant thing noticeable in the testimony of Wood, to which allusion has been made, is the fact that while he states that he reckoned his services on some of these calendar days at a half a day, three-fourths of a day, etc., he does not in any instance state how many hours he devoted to the work for which he made the charge of only a partial day, ¡but he seems to be quite unable to do so; and for’aught that appears, ¡he may have worked enough hours on every one of those so-called fractional days to have justified a charge therefor as full days. As was properly held by the trial judge, how much, or how little, Woód charged to or received from Spafford for his services, is wholly immaterial and aside from the real question; for Spafford was authorized to charge $4 per day for the services of Wood even if he was required to pay less per day to Wood; and likewise, Spafford was authorized to charge at that rate for what amounted to a day even if Wood reckoned it at less than a day and charged accordingly. The importance of care and exactness in fixing the amount, if any, for which the bill should be found to be fraudulent, may not have been, and it seems to us probably was not, understood and appreciated by the jury; and it may have been, and probably was, regarded as a matter of 'indifference. As a matter of fact, it involved in this case all the difference between a felony, punishable by imprisonment in the Ohio penitentiary, and a misdemeanor punishable by a fine and imprisonment in the county jail for a limited period, or both. No emphasis was by the charge of the court placed upon the importance of determining the exact sum that might be ■deemed fraudulent.. The record discloses that, the jury, after about two ¡hours deliberation, returned a verdict of guilty, but in their verdict they stated no sum, and that upon being informed by the trial judge that the verdict was therefore imperfect and that they must again retire and insert the amount for which they found the bill fraudulent (but without any suggestion of the importance of this matter, or that different amounts might involve different consequences) thereupon they again retired,, and in a very few minutes, returned into court with the full amount stated in the indictment, to wit, $40 inserted in the verdict.

We do not criticize the action of the court herein, but merely call attention to what occurred as something suggesting the thought and the apprehension that the question of the amount involved may not have received the careful consideration at the hands of the jury that its. importance merits, or that it would have received had the jury appreciated the consequences. However this may be, we repeat that we are of the opinion that the evidence does not make it sufficiently certain that Spaf-ford knew that the work done by Wood on the 15 days reported was not .sufficient to justify a charge for 15 full days; and if he proceeded upon the assumption or belief that there were 15 full days, or that the time of service by Wood exceeded twelve and a quarter days,, or that the. work comprehended enough time to justify a charge for so many days, (assumptions not irreconcilable with the evidence) he could not have been guilty of making and presenting a bill that was false to an amount as great as eight and three quarter days, or $35, and therefore he could have been guilty of no' more than a misdemeanor. To repeat, as at present advised, we are of the opinion that a conviction of a felony cannot be said to be supported by the evidence with that degree of positiveness required in criminal eases; and as it is not in our power to amend the verdict or reduce the penalty, we feel bound to reverse the judgment and remand the case for a new trial, unless, on further argument, we shall be brought to a different view of the matter.

In this connection we again call attention to the statements of the prosecuting attorney made to the jury in his closing argument. The record recites the incident as follows: ■ ,

“Thereupon counsel proceeded to argue said cause to the jury, and •the prosecuting attorney in his closing argument and near the conclusion thereof made the following statement to the jury: ‘That the bills presented by the defendant were false and fraudulent is shown by the fact that he paid $626 back into the county treasury.’
“Mr. Baldwin interrupting, said to the court: ‘We object to this •statement of the prosecutor. There is no such evidence in the case.’
“The prosecuting attorney replied: ‘There’is such evidence,’ and he thereupon took from the trial table a paper which had been identified by the witness George Spencer and marked ‘exhibit B-3’ and held the .same in his hands before the jury, and further said ‘Here it is.’
“Mr. Baldwin said: ‘That'paper was not admitted in evidence.’
“The prosecuting attorney replied: ‘It was and was sworn to by George Spencer.’
“The court then said: ‘I don’t think that paper was admitted in •evidence, or that anything was testified to relating to the refunding of .any money.’
“The prosecuting attorney replied: ‘I am very certain it was, and •it will be so.found in the stenographer’s notes.’
“Thereupon the court directed the stenographer to examine the-notes. This the stenographer did, occupying several minutes during which time no other proceedings were had. And after such examination the stenographer reported to the court that said paper marked ‘exhibit B-3’ had not been admitted in evidence.
“Thereupon the court instructed the jury as follows: ‘The statement made by the prosecuting attorney to the effect that the defendant, paid a certain sum of money back into the county treasury was improper, no such evidence is before the jury, and you are instructed to> disregard that statement. ’
“The prosecuting attorney resuming his argument said to the-jury: ‘I thought that paper was in evidence. It seems I was mistaken-about it. You may disregard what I said about it. ’ Thereupon the defendant excepted.”

We are assured that the prosecuting attorney made the statement-in entire good faith believing that this matter had been properly brought before the jury, and we see no reason to doubt this. Nor do we see what more could well have been done by him, or the court, to correct the-' mischief probably done by his unwarranted statement; but whether-what he did was done in good faith or from improper motives, is not a question of so much importance as the question whether his action had! a damaging effect upon the cause of the prisoner; and this involves the-further question, whether such effect was merely temporary and was. dissipated by the admonition of the court and the request of the prosecuting attorney that the jury should disregard what he had said. The vital question is, not “Did the prosecuting attorney wilfully commit, a fault,” but, was something done that prevented the accused from-having a fair trial. It has already been pointed out that the whole-question of the guilt or innocence of the accused as presented to and considered by the jury, probably turned upon their decision as to-Whether he acted in good faith in presenting the bill in question. That, being true, and the evidence bearing thereon not being free from doubt, it is not only conceivable, but' altogether probable that a statement to> the effect that he had acknowledged his bad faith in the transaction by paying back part of what he had thus obtained from the county, together wjth the exhibition of a paper in which it was said this acknowledgment of his guilt appeared, would sink deep into the minds of the jury and would tend to resolve all doubts on that question against the-prisoner. The prisoner, or his counsel, had no means of defense against the alleged evidence thus produced and exhibited, though, if the paper-had been regularly offered and admitted in evidence, it might have been, explained so as to make it quite harmless. Under the circumstances, eoun-sel for the prisoner could only protest and object to the court, and the-court could only say to the jury that the paper and statements were to be-disregarded. But, after all, it seems to us that the jury would naturally reflect that the existence of such a paper was manifest, and that counsel for the prisoner had simply succeeded in preventing them from examining it, and in procuring a direction of the court that they' should not give it consideration, and that the failure to bring it properly before them must have been due to some oversight upon the part of the prosecuting attorney. Is it not probable that such direction to the jury was entirely fruitless; that the mischief was of a character that could not be corrected by such means ? If so, it is manifest that the prisoner did not have a fair trial, and that he should be granted a new trial without respect to the question whether the prosecutor acted in good) faith or bad faith.

In the mating up of a jury for the trial of a criminal ease extreme care is taken to procure for such service, men who have minds free from impressions supposed to be produced iby talking with witnesses about the facts of the case. Why is this done and required if it may be supposed to be possible to remove such impressions by a simple request that the jury shall disregard what they have so heard? And if such impressions cannot be thus obliterated, why should it be thought that like impressions made by the solemn assertions of the state’s representative, who is supposed to stand for the protection of the prisoner against wrong as well as for the enforcement of the‘rights of the state, can be effaced by the mere request of them to banish the matter from their minds, though (as here) the statements stand unrefuted ? In many cases, perhaps in most cases, it is held by the reviewing courts that it will be presumed that such admonitions to disregard matters coming to the attention of the jury by improper admission of evidence afterwards ruled out, by improper statements, and the like, have been regarded by the jury and have Been effective; but it is not always so held;'and where a statement as damaging as this would naturally be, is made by the prosecuting attorney in his closing argument, and upon a point so vital to an issue of fact, the proper solution whereof is left in so much doubt by the legitimate evidence in the case, we* think it would be unsafe to assume that the mischief has been cured by the cautionary remarks of the court, and that such assumption would not be supported by the experience of mankind. As said by Judge Smith, in the first circuit, in the course of an opinion in the case of McGuire v. State, 2 Circ. Dec. 318 (3 R. 551):

“We can readily see that the introduction of some kinds of incompetent evidence might be of such a character as greatly to prejudice a defendant, and that in such cases its withdrawal would not rectify the injury done, and that it would be proper for a new trial to be granted under such circumstances.”

In Scripps v. Reilly, 35 Mich. 371 [24 Am. Rep. 575], an action for libel, the judge at the trial permitted counsel in closing the case, to read, against objection, papers not admissible in evidence, and. which were not afterwards offered in evidence. This was held to be such an abuse of discretion as to require the granting of a new trial; and it was further held, that the error was not cured by a subsequent instruction to the jury to disregard said papers.

In Martin v. Orndorf, 22 Iowa 504, the counsel were permitted to read and comment upon testimony taken at the former trial between the same parties; and this was held to be error sufficient to call for a re-, versal, and that the error was not cured by a charge to the jury not to consider such testimony.

The statutes of Ohio, and many other states, permitting a defendant in a criminal case to testify on his own behalf, provide that, if he does not do so, no reference to such failure to testify shall be made by the prosecuting attorney; and it is held in many eases that such prohibited reference to "the failure of the prisoner to testify, constitutes error requiring a reversal, and that such error cannot be cured by any admonition of the court to the jury to disregard such reference.

Many other illustrations might be given of matters improperly, or even accidentally brought to the attention of a jury during the course of a trial, or during their deliberations, resulting in .a mistrial, even where no person connected with the trial could be said to be in fault.

In the case of Angelo v. People, 96 Ill. 209 [36 Am. Rep. 132], counsel for the people commented on the omission of the defendant to' testify in his own behalf, and it was held that that was ground for a new trial, although the counsel was stopped by the court and the jury were instructed to disregard such comments; and in the course of the opinion, this was said:

“It is true, that when stopped by the court, he said it was inadvertently done, and the jury were directed by the court to disregard that portion of his argument. Notwithstanding what he said, and the direction of the .court to disregard it, who can know what effect it may have had on the jury in forming their verdict? * * * Where such things are done, whether intentionally or inadvertently, it may make an impression on the minds of the jury that nothing can remove. And who can say that this inadvertence may not have produced the verdict of guilty?
“We think the plaintiff in error has not had a fair trial, and the judgment of the court below must be reversed and tbe whole cause remanded.”

And in the case of Smith v. State, 44 Tex. Cr. App. 137 [68 S. W. Rep. 995; 100 Am. St. Rep. 849], counsel for the state, in his closing speech to the jury, commented upon the atrocious character of the crime and declared that while he did not believe in mob law as a rule, that its enforcement in a case like this would be justifiable, and continued: “I will be doing my duty as a citizen and a father if I can induce this .jury to hang the defendant as high as Haman and then go home and tell my wife what I have done, and hear her remark, ‘Well done, thou good and faithful servant, you have performed your duty.’ ”

These remarks were objected to at the time and the court reprimanded counsel and instructed him to desist from any further remarks upon that subject, which he did, and the court at the request of the .appellant, instructed the jury not to regard said remarks; but the reviewing court, while recognizing the rule that, ordinarily, a charge of the court instructing the jury to disregard improper remarks made in ■argument will cure the error, declared that this was a''ease where the rule would not apply, because it seemed to the court that the admonition of the trial judge to the jury to disregard such remarks, could hardly eradicate from the minds of the jury the effect of such appeal made to them by counsel for the state.

But illustrations need not be multiplied. If the evidence were so clear as to compel the belief, beyond a reasonable doubt, of the bad faith of Spafford in presenting the bill, we would be disinclined to regard this episode as one probably resulting in prejudice to his rights, and we are not prepared to say that, in any event, standing alone, it would require a granting of a new trial. But, under the circumstances of this case, we believe the trial judge should have regarded and given weight to it on the motion for a new trial as a circumstance that probably had some influence in producing the verdict of guilty.

It seems to us that the trial judge was more confident than the circumstances warranted that his direction to the jury, that they should disregard what the prosecutor had said about the exhibit not in evidence, was effective, and eradicated the impression made by the action aid remarks of the prosecutor. In our opinion the uncertainty in the evidence touching the information possessed by Spafford of the number of work days devoted by Wood to the Hutson joint ditch at the time the bill in question was made out and presented, coupled with the probability that such remarks by the prosecutor had a damaging effect, prejudicial to the cause of the accused, and the further fact .that the conviction was of a felony, instead of a misdemeanor, requires the reversal of this judgment and the granting of a new trial; and holding these views, of course the motion to set aside the order suspending the-execution of sentence should be, and accordingly is, overruled.

Later, to wit: April 27, 1907, in the same case, before the same court, Judge Parker stated as follows:

“The case of Spafford v. State of Ohio has been submitted to this, court upon the briefs formerly filed with and considered by the court at-the time a motion was submitted by the prosecuting attorney to set, aside the order suspending the execution of sentence, and we have been furnished with no further light from counsel either in the way of briefs or oral argument, so that we assume that if they are not content with our decision made at that time they are at least not prepared to point out any new considerations that should influence the court to-change the views then entertained and expressed.
“We examined the case very carefully at that time and we have had no reason since upon reflection or upon any suggestion that has been made to us to doubt the correctness of our views then expressed, and therefore the judgment of the court of common pleas will be reversed upon the-grounds stated fully in the opinion handed down at that time.”'


author: PARKER, J.

text:
    ASSESSMENTS — DRAINS AND DITCHES.
    [Wood (6th) Circuit Court,
    April 27, 1907.]
    Parker, Wildman and Haynes, JJ.
    William H. Millikin v. George W. Fearnside, Treas.
    1. Acquiescence to Ditch Improvement by Silence.
    Where an open county ditch, running through the land of plaintiff, is constructed into a brick sewer, thereby changing it from an open ditch to a closed sewer — and such change being a benefit to the property— one joint owner, after having silently stood by and allowed his land to be so benefited without objection, cannot resist the collection of the assessment therefor, because of irregularity of the proceedings.
    [For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 544-599. — Ed.] ft. Power or Joint Owner to Bind Others por Ditch Improvement.
    One of five joint owners of a tract of land within a municipality, and who has the actual management and control thereof, may bind his cotenants to a proposed improvement of a county ditch running through the premises by signing a petition therefor.
    [Si'' abus approved by the court.]
    Appeal from Wood common pleas court.
    James & Kelly, for plaintiffs.
    J. E. Ladd and E. G. McClelland, for defendant.
   PARKER, J.

The case of Millikin v. Fearnside, Treas., is in this court on appeal from the common pleas court of Wood county, in which court the action was brought to restrain the collection of a ditch assessment. It appears that the commissioners of Wood county, upon the petition of one Frank Griffin and others, caused a ditch, originally constructed as a county ditch known as the “Gorrill ditch No. 1133” — to be made by constructing therein a brick sewer, whereby it was substantially changed from an open ditch to a sewer, and whether the whole Gorrill ditch as originally constructed is within the limits of the city of Bowling Green or not is not certain, but we regard it as immaterial.

The lands of the plaintiff, consisting of a large number of city lots located in what is known as the Gorrill addition to the city of Bowling Green were assessed according to benefits for the making of this improvement. A part of this assessment has gone upon the tax duplicate of the county for collection, and this action is brought to enjoin the treasurer from making the collection, and it is alleged that the mayor of the city was not authorized by the council to sign a peti-t-ion for this improvement, and tbat be did not sign the petition; that, no notice of the improvement was served upon the mayor or the municipal authorities as such, and that, in short, no steps were taken in pursuance of Rev. Stat. 4483, 4484, 4485 (Lan. 7667, 7668, 7669) to' obtain the co-operation of the city in moving,for this improvement or to proceed against the city as such, and it is contended on behalf of the plaintiff that this renders the proceedings so irregular as to make it entirely null and., void, and to render the assessment wholly invalid.

It appears -that this improvement extends- in a direction substantially from a point beginning at about the southern limits of this Gor-rill addition and extending through if, passing across a large number of lots and then diagonally across the addition, thereby cutting several of the lots in a diagonal way, then leaving the addition and passing fur•ther towards the north. The course of the original ditch was substam tially the same. The result of the improvement is that the open ditch crossing these premises no longer remains, but instead, they have a covered sewer.

There is no question made as to the improvement being a valuable-improvement for this addition. It is not contended nor pretended that, the assessment upon these lots exceeds the benefits to the lots, indeed a, witness on behalf of the plaintiff, who is a part owner of the premises,, testifies very candidly, that' he favored the improvement because he-regarded it as a benefit to the property, and it is apparent that it is a benefit to the property; but the whole objection, the whole contention is based upon the ground that the county commissioners were without, authority or jurisdiction in the premises and that therefore the proceedings are null and void.

Now it should be remarked that the county commissioners are not without jurisdiction of the subject-matter; in other words the county commissioners are authorized in cases of this kind to construct improvements of this character within the limits of a municipal corporation provided they observe the requirements of the sections of the statute to which I have referred. Those sections are a part of Chap. 6, title 1, •Rev. Stat. devoted to county ditches, so it appears to be a case if there was a lack of jurisdiction, it was a lack of jurisdiction over the parties, treating the municipality, the city, as a party, as an entirety as this statute does, in proceedings of this character, and treating the owners of the lots as parties over whom jurisdiction is obtained through the action of the municipal authority, under and in pursuance of the proceedings of these sections of the statute, so it presents a question widely different from that where public authorities act without jurisdiction over the subject-matter. In such a case, that is to say, where there is no jurisdiction over the subject-matter, the action is generally not only utterly void but incurably so, whereas if the authorities have jurisdiction over the subject-matter but there is some irregularity in the proceedings even to the extent of having to obtain jurisdiction over persons, it is not necessarily true that the action taken by the authorities is so far invalid that it may be disregarded altogether.

As I have stated, the petition for this improvement was signed by Frank Griffin, and others. This Gorrill addition was owned by five persons — for convenience, the legal title had been taken by the plaintiff William H. Millikin, but he held it as trustee for the five. Charles EL Draper was one of the five owners; he was also the agent and general manager for the five; the five being called, by themselves at least, ‘ ‘ The Gorrill Syndicate.” Upon being applied to sign this petition, Mr. Draper signed it as follows: “Charles H. Draper agent' for the Gorrill Syndicate.” Whether he as agent was authorized to sign this petition may be very doubtful — I think it is — but being a part owner, one of the tenants in common, he seems to have been practically in possession and control and having the management of the affairs of this Gorrill' addition syndicate, we think he might sign the petition and bind his-cotenants. It is conceded too that notice of the improvement was duly served in pursuance of the statute upon Mr. Millikin by leaving a copv at his residence in this city, and that all of the five owners had knowledge of the progress of the work of this improvement as it was being performed over and across their premises, the Gorrill addition. Whether Mr. Draper was authorized to sign and bind his cotenants or those he represented, and whether legal notice was duly served upon the' five or upon Mr. Millikin who had the legal title to this tract, we regard as not very important; the validity of the proceedings, in our' view of the matter, does not depend upon that, the validity of the assessment does, not depend upon that. That they had knowledge of the-progress of the work over and across their premises, is not disputed. Even if the petition had been duly signed or service duly made, it is-doubtful whether that would give the county commissioners sufficient jurisdiction in the premises to proceed within the limits of the municipality, but the important fact is that these owners of those premises knew of the progress of this improvement, and therefore we think that they are bound by this assessment and may not be heard to question it, notwithstanding there may have been the irregularity and notwithstanding there was the irregularity shown with respect to the failure to properly bring in the city as such. We think they are bound by the principle annunciated by the Supreme Court in the ease of Kellogg v. Ely, 15 Ohio St. 64. This is a leading case upon -the question involved and it has been followed by the courts in a great many eases in Ohio, both in the supreme and lower courts and its authority has never been questioned.

The syllabus is:

“Where county commissioners, acting ostensibly under the provisions of the act of March 24, 1859, ‘to provide for locating, establishing, .and constructing ditches, drains, and water courses,’ have established and constructed a ditch, and, to pay for the same, have levied an assessment on the lands of persons benefited thereby: Held, that where a party on whose lands such ditch has been wholly or in part, constructed, ias stood by and failed to resort to any remedy, legal or equitable, until after the ditch was made, a court of equity will not interfere by injunction to prevent the collection of such assessments, even if it be assumed that the proceedings of the commissioners have so far failed to conform to the provisions of said statute as to render them wholly illegal and void in law.”

It will be observed that this is limited to cases where improvements are made upon lands of persons assessed. The same principle does not .apply at all if they are assessed for an improvement that is not upon their lands even though it may be beneficial to their lands. But they -could not allow their lands to be benefited by a public improvement and sit by without objection, and afterwards resist the assessment, no matter how irregular or void in law the proceedings may be, and upon the authority of this decision our finding and judgment will be in favor of the defendant, dismissing the petition at the costs of the petitioner.

Wildman and Haynes, JJ., concur,


author: WILDMAN, J. PARKER, J.,

text:
    ASSESSMENTS — COUNTIES—DRAINS AND DITCHES.
    [Fulton (6th) Circuit Court,
    1907.]
    Haynes, Parker and Wildman, JJ.
    John R. Mason et al. v. Fulton Co. (Comrs.) et al.
    1. Powee of Commissioners in Ditch Proceedings.
    The county commissioners have power to improve a watercourse partly natural and partly artificial, by deepening, widening, straightening and otherwise improving the same. Distinguishing Greene Go. (Gomrs.) v. Bar-Une, 74 Ohio St. 318 [78 N. E. Rep. 521].
    [For other cases in point, see 1 Supp. Dig., “Drains and Ditches,” § 1. — Ed.]
    '2. Watercourse Established by Prescription.
    Although Rev. Stat. 4500 (Lan. 7681) provides that the uninterrupted use of an established ditch for seven years constitutes a natural watercourse, notwithstanding errors, defects or irregularities in the location, establishment or construction of the same, it was not designed to take away rights which the public had acquired over it as a ditch or drain.
    [For other cases in point, see 3 Cyc. Dig., “Easements,” §§ 64-65. — Ed.]
    :3. Commissioners may Locate Ditch in Valley of Living Stream.
    The county commissioners may locate a ditch substantially along the line of the channel of or adjacent to, or in the valley of, a living stream or watercourse, though they have no power to convert a living stream of water into a ditch by proceedings for the location and construction of a ditch.
    [For other cases in point, see 1 Supp. Dig., “Drains and Ditches,” § 1. — Ed.]
    4. Plaintiff in an Action to Enjoin a Ditch Assessment Estopped, 'when.
    Plaintiffs are estopped to question the right of the commissioners to establish and maintain a ditch or watercourse, which has existed for a great many years, and which has been improved, upon several occasions, by proceedings instituted by the county commissioners, and where the plaintiffs have in some of these proceedings paid the assessments without objection.
    [For other cases in point, see 4 Cyc. Dig., “Estoppel,” §§ 521-530. — Ed.]
    ;5. Apportionment of Expense in a Ditch Improvement.
    Where plaintiffs, by reason of artificial improvements on their own lands above, have helped to make it necessary for the protection of the lands below to make contemplated improvements in a ditch or watercourse, they should contribute to their payment.
    [For other cases in point, see 3 Cyc. Dig., “Drains and Ditches,” §§ 165-170.— Ed.]
    6. Finding of Commissioners in Ditch Improvement Final, when.
    Unless injustice is apparent, in the assessment of the expense incurred in ditch improvement proceedings, a court of equity will not disturb the findings of the county commissioners.
    [For other cases in point, see 3 Cyc. Dig., “Drains and Ditches,” §§ 76-79.— Ed.]
    7. Defects in Ditch Improvement Proceedings not Fatal, when.
    Under Rev. Stat. 4490, 4491 (Lan. 7674, 7675), the failure of the commissioners to find affirmatively and enter upon their docket that the ditch Improvement is conducive to the public health, convenience and welfare, is an irregularity that may be disregarded or cured, and is not necessarily fatal to the validity of the .proceedings.
    [Syllabus approved by the court.]
    MotioN to dismiss action, made at close of evidence on behalf of plaintiff.
    C. L. Newcomer, for plaintiffs.
    Handy & Wolf, for defendants.
   WILDMAN, J.

I approach the consideration of the case, the title of which I have just given, with considerable misgiving and with an appreciation of the .great importance of the issues involved and the magnitude of -the investigation that would be required to apprise the court of the precise character and condition of every tract of land involved in the inquiry, with a view to the ascertainment of the equity or inequity of the assessments made on such lands.

We have before us a proceeding to enjoin the collection of assessments for an improvement under the county ditch law. I will not go-into any elaborate recital of the facts which have been disclosed to us. by the evidence. The petition is brought by one John E. Mason in behalf of himself and -some three hundred or more others who, he informs us,, are interested in like manner with himself in the restraining of the collection of the assessments upon the lands assessed for said improvement.

The ditch or watercourse sought to be enlarged, widened and deepened by the proceedings of the county commissioners seems to be of a somewhat double character. The proceedings are described as the improvement of what is known as “the Sean Creek Improvement”, and also ‘ ‘ Chesterfield No. 2. ’ ’ The claimed watercourse extends from a point in the northerly line of the county of Fulton southwesterly until it strikes the line of Williams county, and its entire extent is said to be some twenty-five miles. It is supposed to drain a large section of territory the precise acreage of which it is not essential to state, but it runs well up into the thousands, something over 75,000 aeres, I believe, if we consider the land which the persons favoring the improvement claim to b,e benefited by it.

The first question which confronts us — not the one first stated in-argument or brief, but the one which seems of vital consequence to the-whole inquiry — is as to the jurisdictional power of the county commissioners to make the sort of improvement which is described in this proceeding and to make it by the procedure which has been adopted. We-are confronted with a recent decision of the Supreme Court of this state, that of Greene Co. (Comrs.) v. Harbine, 74 Ohio St. 318 [78 N. E. Rep. 521], which for the first time, so far as we are aware,, attempts to add to the statutory definition of the word “watercourse,”", as used in the county ditch law. The statute, Rev. Stat. 4447 (Lan 7628), provides, substantially, for two things, which will be noted as 31-read the section:

“The commissioners of any county, at any regular or called session,, may, in the manner provided in this chapter, when the same is necessary to drain any lots, lands, public or corporate road or railroad, and will be conducive to public health, convenience, or welfare, cause to be located and constructed, straightened, widened, altered, deepened, boxed,, or tiled, any ditch, drain, or watercourse, or box or tile any portion' thereof. ’ ’

That is the first sort of improvement to which I referred, and the provision following the word “or” which I now read constitutes the: second kind of improvement to which I have made reference—

“Or cause the channel of all or any part of any river, creek, or run,, within such county, to be improved by straightening, widening, deepening, or changing the same, or by removing from adjacent lands any timber, brush, trees, or other substance liable to form obstruction therein. ’ ’

The first part of the section provides for the improving of a diteh- or drain, the second part for the improving of a natural watercourse-, comprised within the terms “river, creek or run.”

In Rev. Stat. 4448 (Lan. 7629) we have the statutory definition of the word “ditch” as follows:

“The word ‘ditch’ as used in this chapter shall be held to include a drain or watercourse.”

The Supreme Court, having this section before it, after discussion by counsel for the litigants in the case cited, gave a construction of its own, which I read in the syllabus, on page 318:

“The word ‘watercourse’ as used in the county ditch law, Title 6, Chap. 1, Bev. Stat., is synonymous with the word ‘drain,’ and the county commissioners are without authority to convert a living stream of water into a ditch by proceedings for the locating and constructing of a'ditch.”

In the ease before the Supreme Court, it was contended by the owner of a certain milldam that the object of a contemplated improvement of a stream by the county commissioners was to destroy his mill-dam and to do it without recourse to another section of, our statutes which I need not stop to read, under which the county commissioners are authorized to proceed for the removal of a milldam from a watercourse. This was denied by the defendants in the ease, but it was not denied that the stream in which the milldam was maintained was a natural watercourse; that it was such a stream as would not come under the ordinary definition of the term ditch. It was contended, however, by counsel who were seeking to collect the assessment that the statutory definition which I have read in Rev. Stat. 4448 (Lan. 7629) so enlarged the term “ditch” as to make it include not only a watercourse which had been constructed by artificial means, but also a natural stream such as has the character of a river. . The Supreme Court, however, did not adopt this contention and came to the conclusion which is embodied in the syllabus which I have read. And this latest announcement of the Supreme Court upon the subject would seem to dispose of the question of the present power of the. county commissioners to change a living stream having a natural flow of water within banks, such as we know to be a river, or creek, or brook, into a ditch or drain.

There is no qualification, however, in this decision, of the power of the commissioners to remove obstructions from a river or cause the channel of a river, creek or run to be improved in the other ways specified in Rev. Stat. 4447 (Lan. 7628), to wit, by widening, deepening or changing the same.

The petition before us and upon which the plaintiff bases his claims to equitable relief on behalf of himself and other persons affected, recites that the petition which was theretofore filed with the commissioners prayed for the deepening, widening, straightening and otherwise improving a certain watercourse, partly natural and partly artificial, known js Bean Creek, with its branches in said county.

Without tarrying long upon this particular branch of the ease, important as it is, we have arrived at a conclusion from an examination of the evidence offered on behalf of the plaintiff. I should have said, perhaps, in my statement of the present status of the case, that at the close of the plaintiff’s evidence, a motion was made to us by the defendants for a judgment upon the ground that the evidence offered by the plaintiff would not justify the equitable interposition of the court. The evidence clearly discloses that from a very early period in the history of this county a watercourse has been maintained along the greater part of the line of the proposed improvement. It has perhaps been extended from time to time, and it has certainly been improved at different times in the course of years, and assessments have been made upon property owners near and remote for the cost of such improvements. Up to the present time, so far as we are informed, no contention has been made by anyone that this had not become a drain or watercourse subject to the jurisdiction of the county commissioners under the statutes as to ditches, drains and watercourses.

Now, we have one section of the ditch law which may have some incidental bearing upon the effect of this long recognition of the so-called Bean Creek Improvement as a county ditch. It is Rev Stat. 4500 (Lan. 7681). I read it:

“When a ditch has been established and constructed for the public health, convenience, or welfare, either by private agreement between two or more individuals, whose real property has been affected thereby, or by a hoard of township trustees, or by a board of county commissioners, and such ditch has been used for the purpose of drainage of private lands or public highways for seven years or more, without obstruction or interruption, the same shall be, and hereby is declared to be, a public watercourse, notwithstanding errors, defects, or irregularities in the location, establishment, or construction of' the same, and such public watercourse shall, in all respects, be considered and treated as a natural watercourse, and the public shall have and possess, in and to such public watercourse, the same rights and privileges which pertain and relate to natural watercourses.”

The last clauses of this section are somewhat peculiar and at first reading might seem to throw some obscurity upon the construction of the section. It can hardly be contended, however, that it was the intention of the legislators that after the uninterrupted use of an established ditch for seven years, even if it had been erroneously or irregularly located, it should become a public watercourse and that thereupon the commissioners should lose their jurisdiction over it to improve by deepening or enlarging or straightening its channel. We think that this is rather a statutory limitation against claims of error and irregularity in the original construction, and that, although the section says that it shall be treated as a natural watercourse and the public shall have and possess in and to it the same rights and privileges which pertain and relate to natural watercourses, it was not designed to take away any rights which the public had acquired over it as a ditch or drain.

Now, the principal error, which it is claimed is a jurisdictional one, is, substantially this, although not stated, perhaps, in precisely these words, that the county commissioners in the original location of this ditch and in their location of the contemplated -improvement, are placing it along the line of the channel of a living stream or watercourse, and that that sort of a location is one which the law will not permit, and it is contended that the decision in Greene Co. (Comrs.) v. Harbine, supra, substantially so asserts. Tbe Harbine case says that the county commissioners are without authority to convert a living stream of water into a ditch by proceedings for the locating and constructing of a diteh. It does not say that the commissioners may not locate a -ditch substantially along the line of one, or adjacent to, or in the valley of, a living stream or watercourse. But if they could or not, the error would be one in locating the ditch where they had no jurisdictional or proper power to locate it. But here we have a construction which in -,the petition is described as partly natural and partly artificial, and which has existed for I know not how many years, but certainly a good many, and which has been improved upon several different occasions by proceedings instituted before the county commissioners. In some of these proceedings some of the very lands now sought to be assessed and owned or managed by some of these claimants said to be represented iby Mr. Mason, the plaintiff, were assessed to pay for those former improvements, and no objection seems to have been raised.

"We think that, applying the general principles as to the acquiring of easements by prescription, and also the principles embodied in Rev. Stat. 4500 (Lan. 7681), it is too late now to question the right of the commissioners to the establishment and maintenance of what is known as the Bean Creek Improvement. That rights are acquired not only by individuals by long use, but that the public may also acquire such irights is a doctrine which needs no support by citation of authority, jit would not be hard to find numerous adjudications in support of the position. In a ease which happens to have been cited for another purpose I have found some authority which would entirely justify, I think, ihe holding that the public have established by long, public and undisputed use the character of this improvement. The case to which I refer is Cleveland v. Bag & Paper Co. 72 Ohio St. 324 [74 N. E. Rep. 206; 106 Am. St. Rep. 613]. It was cited, perhaps, by counsel for the purpose of showing the acquisition by long use of a right by a private individual, but the principle of the case applies just as clearly in favor of the public where there has been a like uninterrupted and undisputed public use. '

This improvement is said by the plaintiff to be partly natural and partly artificial, or, rather, that it is the deepening, widening, straightening and otherwise improving of a certain watercourse, partly natural and partly artificial, known as Bean Creek, etc. And the question presents itself as to what are the rights of the landowners along the line of such a watercourse, or landowners near to such watercourse and who drain toward it and ultimately into it.

It is urged with very much force and after industrious research •among the authorities and unquestionably industrious examination of -the facts involved in this ease, that lands owned by the plaintiffs here and lying, some of them, miles from the proposed improvement, are not benefited within the meaning of the law so- as to justify the imposition upon them of any part of the cost of the improvement. And it is also insisted as an incident to this claim, that these landowners have a right to discharge the surface water from their lands or to drain their lands by tiling in such wise as even to increase the flow of streams running into Bean Creek. It is said that where there is a natural watercourse— .a living stream — the owners, in the first place, have a right to the natural •drainage of their lands; that when they bought their lands they bought the lands with the right attached to them as an incident, and that the lower lands over which the waters might flow owe a service -to the land •above. Authority has been cited in support 'Of the contention, and we think that some of it goes the full length of the claim made by counsel for plaintiff. But is this the law recognized in Ohio ? Is it in harmony with the principles which have been established or suggested in the •adjudications which have reached our court of last resort?

In a case much relied on and often quoted in the progress of the case, Blue v. Wentz, 54 Ohio St. 247 [43 N. E. Rep. 493], the Supreme Court held that certain lands were not liable to assessment for the cost of a ditch improvement, and in arriving at this conclusion laid down certain principles to which we may justly look for guidance in the determination of the rights of the present litigants. I read from page 247 (this language is in |he syllabus) :

“A lower tenement is under-a natural servitude to a higher one to receive from it all the surface water, accumulating from falling rains •and melting snows, or from natural springs, that naturally flow from it to and upon the lower one. This advantage of the higher tenement is a part of the property of the owner in it, and he is not indebted to the lower tenement therefor.
“In making an assessment on lands, benefited by artificial drainage, the extent of their watershed is not the proper rule, but the amount of surface water for which artificial drainage is required to make them cultivable, and the benefits that will accrue to the lands from such drainage. However much water may fall on them or arise from natural springs, if, by reason of their situation, they have adequate natural •drainage therefor, they are not liable for the cost of artificial drainage to other lands. ’ ’

On pages 254 and 255 Judge Minshall, who announced the opinion for the court, very carefully guarded the rule which he was laying down to cover this class of cases. He says (using a portion of the language which we find embodied in the syllabus- and with other phraseology qualifying the doctrine) :

“It is a principle of property well recognized in many of the-states, and particularly in Ohio, that, where lands are situated as above-supposed, the lower tenement is under what is called a natural servitude to receive such waters as flow to and upon it from a higher one, provided the industry of man has not been used to create the servitude. The right which the higher tenement has to require the lower one to receive from it the surface water that naturally drains to and upon it, is a right incident to the higher tenement, and a part of the property of the owner in it; and for any invasion of this right the law will afford him a remedy.”

Several authorities are cited in support of the doctrine, among-them Washburn, Easements, from which several quotations have been read by counsel for plaintiff.

Among the cases cited in support of the qualification of this doctrine is the case of Butler v. Peck, 16 Ohio St. 334 [88 Am. Dec. 452], holding that where upon the lands of B there is a marshy basin, from which, in times of high water, a portion of the water contained in the basin overflows its rim and naturally finds its way through a swale to- and upon the lands of P, while the remaining portion of the water of the basin has no outlet, and is dissipated by evaporation, B cannot rightfully, by an artificial drain, conduct the water that has no natural outlet from the basin, and along said swale, so as to cause them 'to flow upon the lands' of P to his damage.

Of course, there is nó suggestion in that case as to riparian rights; that is, the right to increase the drainage from land by artificial means, so as to accelerate or increase the flow in a natural watercourse — a stream or river; a swale is mentioned in the decision. But after all, the general principle seems to be enunciated that a person has certain. natural rights which he may maintain with regard to the discharge of water from his land and he is not liable for damages arising therefrom; but in this case as in the other, the doctrine seems to be qualified by the feature that when he increases or changes the natural course of events by his own industry, or by artificial means, then he becomes, to a certain extent, responsible for the results.

There is no claim in the present suit for damages. There is no suit brought against these upper landowners upon the theory that they have damaged some one below, bnt it seems to be a. conceded fact that, as to. a number of persons who are said to be represented by the plaintiff, they have treated their lands artificially; that they have improved the drainage of their lands into the various tributaries to Bean Creek, and that they may thereby have increased or accelerated the flow of water in Bean Creek. Even if no more water flowed into Bean Creek by reason of this artificial drainage than flowed before, still the constant or more' rapid accumulation of the waters by artificial drainage might cause such injurious results below as would call for the more rapid taking away of the water from the lower part of the stream. But it cannot be said that there will be no increase in the actual aggregate discharge of water during a season by reason of artificial drainage, because the water which is permitted to stand upon the surface of the lands will oftentimes by gradual evaporation pass off in another direction, instead of taking the course by rivulet, brooklet or creek, and so finding its way down to the larger streams.

The county commissioners deemed these upper lands benefited in greater or less degree by reason of the improvement of what we have called the Bean Creek Improvement and Chesterfield No. 2. It is not now altogether a question as to the extent to which the lands above have been artificially drained. If, by reason of the improvement of Bean Creek Improvement and Chesterfield No. 2, facility is given to the carrying away of water which may be brought down by future artificial drainage from above, we think that it is a matter which has to be taken into consideration, and we have the evidence of several witnesses who have apparently permitted Mr. Mason to represent them as their agent in the bringing of this suit, that they have actually tiled to a considerable extent their lands, both upland and lowland, which are said by the commissioners to be benefited and which are sought to be assessed. Mr. Ely so testified with regard to his land, Mr. James-Randel as to his, Mr. E. H. Butler, Mr. A. M. Rogers, Mr. J. M. Keesy, Mr. W. M. Griffin, and perhaps others. This is but illustrative of the fact that many of these people deem it beneficial to their lands to drain them by artificial means; they are not satisfied to let the water flow away by merely natural means.

Tootle v. Clifton, 22 Ohio St. 247 [10 Am. Rep. 732], was a case of damage caused by the increased flow of water from upper land upon lower. It was held that the erection of an embankment upon one’s own land, whereby the surface water on the adjoining land of another is. prevented from flowing in its natural course, and caused to flow off in a different direction over the land of the latter, is a nuisance for which. an action may be maintained without showing any actual damage, and for which nominal damages, at least, may be recovered. In that case it was also held that title by prescription may be acquired by twenty-■one years’ adverse enjoyment of an easement. In Washburn’s work on Basements I think there is, to a certain extent, a recognition of the same idea as to the increase of the flow of water by artificial means, and that it is not treated as a right to which protection will be afforded in the way claimed by counsel here.

In Blue v. Wentz, supra, the court lay down another rule exactly in line with the idea which I am endeavoring to express. On page 255, it is said:

“But if the lands of the plaintiff were subject to assessment, the rule adopted for making the apportionment, would still be open to objection. The benefits for which an assessment may be made, must relate to the betterment of the land for the purposes to which it may reasonably be put. It is difficult to see how this may be done by simply establishing the amount of its watershed. It is not the rain that falls on the land that determines its need of drainage — rain is necessary to its fertility — but it is the amount that falls on it for which artificial drainage is needed. This, from the natural situation of the land, may be little or nothing; and where it is nothing, there can be no ground for an assessment upon it for the purposes of drainage, however much rain may fall on it. The situation of lands with respect to drainage is a controlling factor in their value; the purchaser pays for this advantage in acquiring his property; and there is no principle of justice upon which others, less favorably situated, can compel him to contribute toward making their lands as good as his in the matter of drainage. Each owner has the right to enjoy his property with its advantages and he cannot be deprived of his advantages for the benefit of others upon some fictitious notion of benefits conferred.”

There is no hint or suggestion in these Ohio cases that the criterion of assessability upon plaintiffs’ lands is to find, if we can, whether the waters below in- the improvement will back up upon the plaintiffs’ lands. I find no suggestion of that kind. Counsel, however, seem to have entertained the view that if with perfect facility the plaintiffs may discharge the water from their lands by either natural or artificial means .and if those waters cannot get back to them, that then they will not be benefited by any improvement below. We think that this is not a just rule nor the rule contemplated by the law. We think that if, by reason of the artificial improving of their own lands above, the plaintiffs have .helped to make it necessary for the protection of the lands below to make these contemplated improvements, then they should equitably help to pay for them. Surely, there is.nothing unjust in that; if they have necessitated this expense, they should contribute to its payment. "We are not inclined to think that by the present contemplated improvement or improvements, in time of flood or freshet the waters, will be prevented from backing up upon the lands of the plaintiffs. We are entirely in harmony with the contention of the plaintiff» in that regard; but our judgment is, that that is not the determining principle here. The question is, will they be benefited by having conferred upon- them the right to pour this water out from their lands in such wise that it will increase the flow in the improvement below ? If they are assessed for this benefit or claimed benefit, it is by reason of this principle.

The case of Winters v. Fangboner, 30 O. C. C. 000, is, in this respect, quite analogous to the present ease and the same conclusion was reached by the court.

There are some incidental matters involved, here. I think- that I have sufficiently discussed the- two leading questions which have been presented to make clear the. views entertained by the court. There are certain minor questions which, perhaps, should not be forgotten, and to which I will briefly refer.

It is claimed that the assessments made are inequitable; that they -were .not made upon a careful examination of each tract of land; that the commissioners did not go upon all. of these premises and view them; and that, therefore, there ought to be a readjustment and reapportionment, if the assessments .are permitted to stand at all. The burden is upon the-plaintiff to show the inequity of the apportionment, and we are not satisfied that there is anything substantially inequitable in the principles upon which the commissioners have made the assessments. We do not think that the law requires them to go upon each individual tract of land. The law does require that they shall go along the line of the contemplated improvement; that they shall do it with a view of determining the necessity for it, and, of course, they should avail themselves of all proper means to make a just estimate of the benefit to each tract of land by reason of the contemplated improvement. This, we think, they have sought to do, and the presumption is, that their judgment is .not at fault. We cannot presume error in this regard, and the law indeed does not permit us to disturb the assessments which they have made except for gross inequity or injustice. Such has not been disclosed, to us. There is another matter to which I wish to refer before I end what I have t-o say, and that is the sort of doubtful position occupied by.the plaintiff here in the representative capacity in which he brings this suit, and also the incidental question, raised by the demurrer. Demurrers were filed by the auditor, treasurer and county commissioners, setting up different grounds of claimed insufficiency in the petition. One was, that there was a misjoinder of causes of action; another, that there was a misjoinder of plaintiffs. There is but one plaintiff in fact, although he seeks to sue for the benefit of all.

We think that there is- much force in the contention of counsel for defendants, that, even if these three hundred or more persons were all nominal plaintiffs, after we got past the question of jurisdiction to establish fhe improvement, they are not precisely upon the same footing. The interests of the so-called plaintiffs are identical in claiming that this is a natural watercourse and that the commissioners have no right to make the improvement with regard to it which they seek to make. We have disposed of that question. But when it comes to an adjustment of the assessments, no one landowner is interested in having the assessment upon any other landowner decreased; he is interested in having the assessment upon his own land decreased, and that might very naturally result in an increase of the assessments upon others. Their rights do not lie along the same line; they are rather antagonistic than harmonious. It is to the financial interest of each landowner to place the assessment upon others rather than himself, if the burden is to be borne by assessment at 'all; and while each individual landowner might have a claim for a reduction of the assessment upon him, or to the setting of it aside altogether, we fail to see that he has any such interest in the assessments made upon others as would justify the joining of them in one action. Perhaps I ought not to say that we fail to see that this could be done. What I mean to say is, that we think, as I said at the outset of this particular branch of the inquiry, that there is much force in the contention of the defendants, and if we found it necessary to touch that question and if these persons were all plaintiffs, we should, perhaps, hold the demurrer upon the ground of misjoinder of claims well taken.

The real plaintiff is John It. Mason, suing in his own behalf and m behalf of others. So far as his land is concerned, his assessment is trivial, and he says himself that it is more a matter of principle than of money; it makes no difference whether the assessment is fifty cents or whether it is five dollars, or whether it is any other sum, he is contending for a principle rather than to be saved from an expenditure of money. Courts do not .sit to decide abstractions; there are too many substantial matters constantly pressing upon the courts for their consideration to permit the spending of very much time in the considera“tion of abstract principles. It ?g true, however, that courts will decide •questions of right and will maintain the right of a party to litigate, ■although they may render judgment foi nominal damages, when ¡going with the awarding of nominal damages is the settling of some ■principle which may be important to him in the future. A trespass case, .for instance, will be maintained, where one-is trespassing upon land under claim of right or title, for which the courts will award nominal ■damages, although he may have done no mischief, because there is involved the determination of whether his right to enter and persist in ■entering can be maintained.

I will not tarry longer upon the question of the right of Mr. Mason to sue, except to make a mere reference to the case of Quinlan v. Myers, 29 Ohio St. 500, which holds, in substance* that if the nominal plaintiff, who sues not only in his own behalf but in behalf of others* fails to maintain his individual action, the whole case will' fall, and to refer to the statement made by Mr. Mason, in evidence, that along in the year 1905, I think it was, he wanted the ditch improvement below him, ex-' tended to his place, or else that he should'not be assessed, implying a concession that, if that improvement were extended to his land or upon 'his land, then the assessment might be made. I do not know that we should place very great weight upon such- concession, but it bears upon his right to question the legality of these improvements: it is a question whether there has not been an acquiescence upon his part in. some of these improvements that have been established in years past.

I have not time to refer to the other discussion incidental to these main questions, which I have treated somewhat briefly, perhaps hastily, •and it suffices to say that it is the judgment of the court that this im-' portant improvement, which, we believe, from all the indications of the evidence-, is one demanded by the public welfare and convenience, should not be stayed by any action of ours in disturbing the assessments which have been made upon these landowners. We think that the commissioners have sought to* make a just distribution of the cost of the improvement. The- setting aside of their first estimate and the adoption ■of an improvement costing little more* than, half the first, against which remonstrances had been filed, indicates an intention on their part to deal fairly with, the people in this corner of the county. No intimation has been made, indeed, of any intentional injustice or favoritism. It is said, to be- sure, that one of the commissioners owned land' lying upon, or ■adjacent to, this improvement, subject to assessment; but, without comment upon authorities or making citations, it is enough to say that we do not think that a sufficient ground is thereby afforded for interference with tbe action of tbe commissioners or disturbance of these assessments.. Indeed, after as careful an examination as we have been able to make-of the whole field of inquiry, we have been unable to arrive at the conclusion that, plaintiff’s petition should be sustained.

Our judgment is, that neither Mr. Mason nor the other persons associated with him and whom he seeks to represent have any claim to-the equitable interposition of the court to set aside the assessments. , which have been made upon them, and for this reason the finding- of the-court- will be in favor of the defendants upon the motion which has been made for a -judgment of dismissal of the plaintiff’s petition.

Haynes, J:, concurs.

PARKER, J.,

concurring.

Judge Haynes calls my attention to the fact that in the course of his opinion Judge Wildman did not mention the contention respecting the failure of the commissioners to find affirmatively and enter upon their docket that this improvement was conducive to the public health, convenience and welfare. If he mentioned the contention; he failed to mention certain sections of the statutes that we think bear upon that question. Under Rev. Stat. 4490, 4491 (Lan. 7674, 7675), we think that an error of that kind may be disregarded or, in effect, cured; that, where an application for injunction, like this, is made to the court, it. is not necessarily fatal to the validity of the proceedings. I read a part, of it: ' .

“* * *■ The court in which any such proceedings are begun shall, allow parol proof that said improvement is necessary and will be-conducive to the public health, convenience, or welfare, and that any steps requited by law for any improvement have been substantially complied with, notwithstanding the record .required to be kept by any board or officer.”