author: WINCH, J.

text:
    RIPARIAN OWNERS.
    [Cuyahoga (8th) Court of Appeals,
    December 7, 1914.]
    Winch, Meals and Grant, JJ.

      State of Ohio v. Cleveland-Pittsburg Ry., et al.
    1. State Holds Title in Trust to Waters of Lake Erie and Soil Thereunder Within State Boundaries.
    The state of Ohio holds the title to the soil under Lake Erie, within its boundaries, as it does to the waters thereof over said soil, in trust, however, for the purposes of navigation and fishing.
    2. Right of State to Regulate Navigation and Fishing Subject to Federal Navigation Regulations.
    The United States government has the paramount right to fix the line of navigation in said lake, hut within that line so fixed by it and between it and the shore the state has the right to regulate navigation and fishing, so long as it does nothing to conflict with the regulations of the federal government, or the access of the riparian owner to navigable water.
    3. Riparian Municipal Owner has Right'to Wharf Out and Make Land to Line of Navigability.
    Until the state otherwise determines by appropriate legislation, it will be held to have acquiesced in the line of navigation fixed by the United States, and the owner of land fronting on Lake Erie has the right to wharf out and make land to the line of navigability so fixed, and this right pertains to every foot of the shore -property.
    [Syllabus by the court.]

      Error.

      T. 8. Hogan, Atty. Gen., and B. M. Morgm, for plaintiff in error.

      Squire, Sanders & Dempsey and 8. H. West, for defendants in error.

      Motion to certify record to Supreme Court allowed, State v. Railway, 60 Bull. 176.

   WINCH, J.

This is a proceeding to review the judgment of the common pleas court in dismissing an action brought by the state to enjoin the defendant from further filling in the shallow waters of Lake Erie on which their lands front and to require them to remove material already filled in and restore the waters to their former condition at the original shore line.

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

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

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

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

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

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

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

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

That is a mistake, as has frequently been held.

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

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

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

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

Another great jurist of this state, Judge Ranney, in the case of Cleveland, C. & C. Ry. v. Keary, 3 Ohio St. 202, used the following language:

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

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

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

Many cases might be cited in which the Supreme Court of this state has found the common law of England inapplicable to the customs, business and condition of our people and refused to apply it. A notable case of that kind, involving a matter kindred to the subject here to be considered, is Lembeck v. Nye, 47 Ohio St. 336 [24 N. E. Rep. 686; 8 L. R. A. 578; 21 Am. St Rep. 828], where it was held that a nonnavigable inland lake is the subject of private ownership and an owner of adjacent lands whose deed makes the lake one of his boundaries, takes to the center of the lake. Commenting upon the fact that in some of the states and in England, the rule is to limit the operation of the conveyance to the water edge and that the numerical weight of authority supports that rule, Judge Bradbury says:

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

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

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

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

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

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

We quote as follows:

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

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

Sir Mathew Hale, who died in 1676, wrote a treatise, De Portibus Maris, which is found in Hargreave, Law Tracts, p. 85 is found the following much quoted statement:

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

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

In 1795 the case of Attorney-General v. Richards, 2 Anst. 602, was decided. The action was to abate a wharf and the ■court held that it was a purpresture and that it was immaterial whether or not it was an actual nuisance. Regarding the Phil-pot case the court says:

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

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

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

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

In New York state we find the question finally settled by the case of Brookhaven v. Smith, 188 N. Y. 74 [80 N. E. Rep. 665; 9 L. R. A. (N. S.) 326], decided in 1907. The first paragraph of the syllabus of that case is as follows :

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

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

“We have but to consider the position of Great Britain, as an island, with short rivers, navigable only as far as the tide flows and ebbs, and a reason for the rigidity of the rule early asserted as to the rights attaching to riparian ownership may appear, in the apprehension of the ‘straightening of the port by building too far into the water. ’ (From Hale's De Portibus Maris.)

Our position is different, physically and governmentally.

“The jus privatum of the Crown, by which the English king was deemed to own the soil of the sea and of navigable rivers, in his own right, rather than as a sovereign holding it in trust for his people, however applicable to the conditions in Great Britain, were totally inapplicable to the situation of the colonists of this country. In Gould on Waters, the author remarks, as to this, that ‘there is no evidence that the jus privatum * * * was ever asserted in the colony as the right of the Crown, or that it has, until recently, been claimed by the state; but there is, on the contrary, in my opinion, the strongest evidence that this right has been abandoned to the proprietors of the adjoining land from the first settlement of the province and exercised by them to the present day, so as to have become a common right and thus the common law.’ (3 ed., Sec. 32.)
“I may observe, in passing, that in England the common law rule, which left the riparian owner without any remedy, when his right of access was destroyed by public works, has been modified, within recent years. See Buccleugh v. Board of Works, L. R., 5 H. L. 418.
“It is a matter of general observation, of which judicial notice may wisely be taken, that riparian owners everywhere upon the numerous navigable bodies of waters within the territorial limits of this state have made their easement, or right of access, practical and available by the construction of docks, piers, or wharfs and have done so without interference by the state, where superior public rights have not been obstructed These interests must be very large and if we shall hold with the English common-law doctrine, that they are purprestures, or unlawful encroachments upon the proprietary rights of the state, as would follow, if we affirm this judgment, and that they are removable at pleasure, it would result in causing a very grave loss. Such a decision would be to ignore what has been beleived to be a common right, within numerous adjudications of our court.”

For much the same reasons it was held in Connecticut that though the title of a riparian owner terminates at ordinary high water mark, he has the exclusive right to wharf out below the low water mark to navigable waters, or to dig channels from his uplands to navigable waters, so long as he does not interfere with free navigation. Prior v. Schwartz, 62 Conn. 132 [25 Atl. Rep. 398; 18 L. R. A. 668; 36 Am. St. Rep. 333].

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

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

The right of the riparian owner to wharf out to navigable waters in New Hampshire is placed upon the grounds Of usage or custom. Clement v. Burns, 43 N. H. 609; Concord Mfg. Co. v. Robertson, 66 N. H. 1 [25 Atl. Rep. 718; 18 L. R. A. 679].

The right to wharf out in Maine was established by colonial ordinance in 1641, Deering v. Long Wharf, 25 Me. 51; State v. Wilson, 42 Me. 9; and in Massachusetts this early colonial statute, later repealed but considered as part of the common law, gave the riparian owner the right to wharf out 100 rods beyond high water mark. Bradford v. McQueston, 182 Mass. 80 [64 N. E. Rep. 688].

In Rhode Island this right, from the earliest time, was considered inseparable from the ownership of the upland. Providence Steam Engine Co. v. Steamship Co. 12 R. I. 348 [34 Am. Rep. 652] ; Folsom v. Freeborn, 13 R. I. 200.

In New Jersey the' courts hold that by custom the shore owner can reclaim the land between high and low water marks, but such privilege is a mere license which the legislature may revoke at any time, before execution. Bell v. Gough, 23 N. J. Law 624; Stevens v. Railway, 34 N. J. Law 532 [3 Am. Rep. 269] ; Heiney v. Nolan, 75 N. J. Law 397 [67 Atl. Rep. 1008].

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

In Maryland the matter is regulated by statute, Garitee v. Baltimore, 53 Md. 422; Baltimore v. Steamboat Co. 104 Md. 485 [65 Atl. Rep. 353] ; and the same is true in Florida. Alden v. Pinney, 12 Fla. 348; Sullivan v. Moreno, 19 Fla. 200.

In North Carolina, by statute, a riparian owner has the exclusive right to a grant from the state of the right to wharf out to the line of navigation, Gregory v. Forbes, 96 N. C. 77 [1 S. E. Rep. 541] ; and without any such grant from the state he has the same right, subject, however, to such general regulation as the legislature may prescribe for the protection of the public’s interests, Bond v. Wool, 107 N. C. 139 [12 S. E. Rep. 281]. This is also true in Georgia, Savannah v. Georgia, 4 Ga. 26.

The right to wharf out in Alabama is based by its courts upon' immemorial usage and is recognized by statute. Turner v. Mobile, 135 Ala. 73 [33 So. Rep. 132].

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

The states on the Pacific slope have adopted the old English rule, San Francisco Sav. Union v. Petroleum Co. 144 Cal. 134 [77 Pac. Rep. 823; 66 L. R. A. 242; 103 Am. St. Rep. 72] ; State v. Sturtevant, 76 Wash. 158 [135 Pac. Rep. 1035] ; Pacific Elevator Co. v. Portland, 65 Ore. 349 [133 Pac. Rep. 72] ; and the United States Supreme Court has administered the law accordingly, in those states, holding that the question of title to the foreshore and soil under navigable waters depends upon the law of the state where the question arises. Shively v. Bowlby, 152 U. S. 1 [14 Sup. Ct. Rep. 548; 38 L. Ed. 331].

On the Great Lakes we have seen what is the law of New York, Bookhaven v. Smith, 188 N. Y. 74 [80 N. E. Rep. 665; 9 L. R. A. (N. S.) 326: 11 Ann. Cas. 1], and we apprehend that decision is applicable to Lake Ontario; see also Thousand Island Steamboat Co. v. Visger, 179 N. Y. 206 [71 N. E. Rep. 764].

In Pennsylvania the rights of the riparian proprietor are said to end at the water’s edge, in the absence of legislative authority extending them. Tinicum Fishing Co. v. Carter, 61 Pa. St. 21 [100 Am. DeC. 597].

In Michigan we find the case of Lincoln v. Davis, 53 Mich. 375 [51 Am. Rep. 116], where it is said:

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

Thomas M. Cooley, chief justice of the supreme court of Michigan, sat in this ease and concurred in the judgment. In Cooley, Const. Lim. (5 ed.) p. 675, is a note which reads as follows:

“In the recent case of Davenport & N. W. Ry. v. Renwick, 102 U. S. 180 [26 L. Ed. 51], it is decided expressly that the land under the water in front of a riparian proprietor and beyond the line of private ownership, can not be taken and appropriated to a public purpose without making compensation to the riparian proprietor. This is a very sensible and just decision.”

In Wisconsin it has been held that “riparian rights proper rest upon the title to the bank of the water, and are the same whether tbe riparian owner owns the soil under the water or not,” and that such riparian owner “unless prohibited by local law, has a right to construct in shoal water, in front of his land, proper wharves or piers, in aid of navigation, and at his peril of obstructing navigation, through the water far enough to reach actually' navigable waters.” Diedrich v. Railway, 42 Wis. 248 [24 Am. Rep. 399].

To the same effect are the decisions of the state of Minnesota, and the reasons for so holding are given at length and seem persuasive. It would be profitable to quote from the decisions of that state, but time forbids. They are as follows: Union Depot Co. v. Brunswick, 31 Minn. 297 [17 N. W. Rep. 626; 47 Am. Rep. 789]; Lake Superior Land Co. v. Emerson, 38 Minn. 406 [38 N. W. Rep. 200; 8 Am. St. Rep. 679]; Miller v. Mendenhall, 43 Minn. 95 [44 N. W. Rep. 1141; 8 L. R. A. 89; 95 Am. St. Rep. 219] ; Hanford v. Railway, 43 Minn. 104 [44 N.. W. Rep. 1144].

In 'Illinois the old common law rule prevails. Revell v. People, 177 Ill. 468 [52 N. E. Rep. 1052; 43 L. R. A. 790; 69 Am. St. Rep. 257] ; Lincoln Park (Comrs.) v. Fahrney, 250 Ill. 256 [95 N. E. Rep. 194].

The decisions of the Supreme Court of the United States are not in entire harmony. In Yates v. Milwaukee, 77 U. S. (10 Wall.) 497 [19 L. Ed. 984], Mr. Justice Miller said:

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

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

In the later case of Scranton v. Wheeler, 179 U. S. 141 [21 Sup. Ct. Rep. 48; 45 L. Ed. 126], the court thus stated the law:

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

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

We now come to the decisions of Ohio, having in mind that there has been no legislation upon the subject by the state (except, perhaps, the act of March 29, 1867, 64 O. L. 87, repealed April 30, 1868, 65 O. L. 115, and unless the act of May 10, 1910, 101. O. L. 236, is a recognition of the. rule that “made or submerged land” in front'of a riparian owner’s property belongs to him), and also having in mind that the riparian owner’s rights have been established as to navigable rivers, Oavit v. Chambers,'3 Ohio 496, and as to nonnavigable inland lakes, Lembeck v. Nye, 47 Ohio St. 336 [24 N. E. Rep. 686; 8 L. R. A. 578; 21 Am. St. Rep. 828]

The case of Sloan v. Biemiller, 34 Ohio St. 492, decided lie 1878, involved only the right of fishing in Lake Erie and its; bays, and the court held that such right is not limited to the' proprietors of the shores, but is as public as if they were subject to the ebb and flow of the tide. This holding was based upon the proposition-that the rule of the English common law7 that the owners of land situate on the banks of nontida! streams, though navigable in fact, are owners of the beds of the rivers to the middle of the streám, is not applicable to the owners of land bounding on Lake Erie. The fourth paragraph, of the syllabus of the case is as follows:

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

Thus we see that Sloan v. Biemiller, supra, expressly reserves the question here involved, where the question does arise-as to the right of a riparian owner to build out beyond his; strict boundary line.

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

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

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

In Dutton v. Strong, 66 U. S. (1 Black.) 1 [17 L. Ed. 32], at page 31, it is said:

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

To the same effect is the Vermont case.

The next case in Ohio is Hogg v. Beerman, 41 Ohio St. 81 [52 Am. Rep. 71], where it was held that land covered by the water of a navigable landlocked bay, or harbor, connected with Lake Brie, may be held by private ownership, subject to the public rights of navigation and fishery.

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

“Applying the principles of the common law to the tideless stream in question, we do not perceive what public interests would be subserved by placing it on the footing of tide-waters, when the rules applying to public fresh water streams provide amply for every common easement. The right of navigation, 1o which all others are subservient, is in no way injured or abridged by this holding, and the necessities of wharves, and other conveniences, which could not be made available at all in such a stream as this, unless owned by the riparian proprietor (because not accessible except over his grounds), would be an inducement to modify the common law, were it otherwise, rather than change it as it is now. * * * And we have no difficulty in holding that the plaintiff is entitled to every beneficial use of the property in question which can be exercised with a due regard to the common easement. The cutting of ice is the exercise of a valuable privilege, in securing that which has become stationary on the freehold, and we can conceive of no reason which would justify a denial of it.”

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

We come now to the first ease squarely involving the questions here at issue. It is the case of White v. Cleveland, 33 O. C. C. 317 (14 N. S. 369), decided by the circuit court of Cuyahoga county in 1911 and affirmed by the Supreme Court, White v. Cleveland, no op., 87 Ohio St. 482.

The cases considered by the circuit court involved the title to made land in the Cleveland harbor east of the government pier at the mouth of the Cuyahoga river, while the case now before us involves the title to lands similarly situated west of that river.

In 1872 the city of Cleveland condemned the premises in question fronting on the lake for park purposes. Thereafter it filled in and made land and built piers in front of this park, called Lake View Park, out to the line of navigation established by the United States government. Taking advantage of certain enabling statutes passed for its benefit it was proposing to appropriate the fee in this made land for the purpose of acquiring the reversionary rights of the owners from whom it had appropriated, in order to have a fee simple title so that it could convey part of the made land, as well as part of the upland of the park, to certain railroads for depot purposes and lease other parts and piers to a steamboat company for wharf purposes.

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

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

Because of the difficulty of elucidation of the other questions in the case, for the sake of brevity alone, and because the common pleas judge who first tried the case had fully covered the point, his opinion being published, White v. Cleveland, 21 Dec. 311 (12 N. S. 225), the question now under consideration was shortly disposed of as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Meals and Grant, JJ., concur.


source: Caselaw Access Project

author: RICHARDS, J.

license: Public Domain

text:
    PARTIES — WILLS.
    [Wood (6th) Circuit Court,
    December 12, 1912.]
    Wildman, Kinkade and Richards, JJ.

      Ida May Wallace et al. v. Franklin Ludwig et al.
    Grandchildren, Beneficiaries, Born After Filing Action to Control Willi Necessary Parties to Trial.
    All persons interested in a will are indispensable parties to an action brought to set the instrument aside, and where grandchildren who are beneficiaries under a will are born after the-filing of such an action but before trial is had, failure to make them parties by proper procedure requires that the judgment obtained in such proceeding be reversed.
    Error to common pleas court.

      N. B. Barrington, for plaintiff in error.

      F. M. Fries, for defendant in error.

      Reversed by the Supreme Court.

   RICHARDS, J.

The action out of which this proceeding in error grows was brought in the common pleas court by Franklin Ludwig and others to contest the will , of one Isaac Ludwig, deceased. The-will was executed on August 23, 1905, at which time Isaac Ludwig was more than 86 years of age. He died in February, 1906, and the will was probated on April 23, of that year. At the time the will was executed and also at the time of his death he had several living children and many grandchildren. The will provides in substance that his executor shall divide one-half of the proceeds of his estate among such of his grandchildren as shall be living at the expiration of ten years from testator’s death, and that the remaining half of his property shall be distributed by the executor at the expiration of twenty years from testator’s death among such of testator’s great-grandchildren as shall then be living.

The petition was filed in the common pleas court on March 6, 190S, and all the devisees, legatees and other interested persons then living were made parties to the action, the number of defendants being about eighty. The case was not tried in the common pleas court until May of 1912 and the four years elapsing between the commencement of the action and its trial were very fruitful, numerous additional grand-children being born during that period. The grand-children born after the commencement of the action were not made parties. The trial in the common pleas resulted in a verdict finding that the paper writing was not the last will and testament of Isaac Ludwig deceased, and upon that verdict judgment has been entered.

The vital'and controlling question in this case is that made by counsel for plaintiffs in error that all of the grandchildren living at the time the case was tried were not made parties defendant, and that they are indispensable parties. We think this claim is in accordance with the law of Ohio. The language of Sec. 12080 G. C. appears to be broad enough to apply as well to legatees who are born pending the action as to those who were living at the time the action was brought. The code provides in Sec. 11262 G. C. that when an action cannot be determined without the presence of other parties, the court may order them to be brought in or dismiss the action without prejudice. The only issue in a case brought to contest a will is whether the paper writing is the last will and testament of the decedent. All the grand-children and great-grandchildren living at the time of the trial had an interest by the terms of the will contingent on their surviving to the periods named in the will and were indispensable parties to a determination of the issue. In order that there may be an end of litigation, it is requisite that all necessary parties be brought into the case. -The right and power and duty to make necessary parties exists after suit brought as well as at the time of filing the petition. An interesting ease shedding some light on the question at bar is Holt v. Lamb, 17 Ohio St. 375. That case has been often cited with approval and is cited by the Supreme Court in Reformed Presbyterian Church v. Nelson; 35 Ohio St. 638. In announcing the opinion in the latter ease, White, judge, speaking for the court says:

“The effect of the decree setting aside the will was drawn in question, in a collateral suit. And it was there held that the parties to the suit in which the decree was rendered were bound by the decree, that it was not void as to them; but that as to all other persons in interest the decree was void. No question arose in that case as to the decree being reversible on error. But as it was held to be void as to some of the persons in interest and binding as to others, in respect to the same property, it would seem to be necessarily erroneous as to the parties to the suit.”

Reference may be made also to McArthur v. Scott, 5 O. F. D. 357 (113 U. S. 340), and to Selden v. Bank, 239 Ill. 67 [87 N. E. Rep. 860; 130 Am. St. Rep. 180]. An extensive note beginning on the latter page contains an interesting discussion of •questions similar to the one now under consideration.

It was held in Rockwell v. Blaney, 18 Dec. 436 (5 N. S. 580), that only such persons as were interested in a will at the time of its probate are proper parties. The reasoning of the court in this case was commended to our attention by counsel for defendants in error but the ease appears to have been reversed by the circuit court. See Heimrich v. Dechant, 21 Dec. 107 (11 N. S. 511).

Guardians ad litem were appointed for several of the minor defendants in the trial court and filed ans-wers denying the averments of the petition. Some of these minor defendants joined in an answer in which they personally admitted the allegations of the petition filed by the plaintiff. This answer of the minors was called to the attention of the jury by counsel for the plaintiffs during the trial. The trial court declined on motion to strike the answer from the files, but did direct the jury that the defense of an infant must be made by his guardian, and that they should not be influenced by any answer which may have been filed by the minors themselves.

We do not And any prejudicial error in regard to this matter but think it improper for counsel to have called the attention of the jury to the contents of this answer and on retrial the incident should not be repeated. Under the statutes, the duty rests on the party to make his case unaided by any admissions contained in an answer filed by minors, as the defense of minors must be made solely through the guardian ad litem, and even an admission in the answer of the guardian ad litem would be ineffective as an aid to the opposite party. See Massie v. Donaldson, 8 Ohio 377, cited with approval, Mills v. Dennis, 3 Johns Ch. (N. Y.) 367.

All legatees living at the time of the trial were indispensable parties and because of the failure to make them parties, the judgment will be reversed and the case remanded for further proceedings.

Wildman and Kinkade, JJ., concur.


author: FERNEDING, J.

text:
    MASTER AND SERVANT.
    [Preble (2nd) Court of Appeals,
    June 1, 1914.]
    Allread, Perneding and Kunkle, JJ.

      Dayton & Union Ry. v. Edward C. Bunger.
    Assumption of Risk in. Force under Federal Employers' Liability Act.
    The common law doctrine of assumption of risk remains in force under the federal employers’ liability act and applies to causes of action in force prior to the taking effect of Sec. 4 of the act.
    Error.
    This is a suit for damages on account of personal injuries. The defendant in error was an engineer in the employ of the plaintiff in error company and had been in the employ of said company for about six years; three years of said time as fireman and about three years as engineer. He received the injuries complained of while he was getting in his capacity as engineer for the plaintiff in error company, hauling a freight train and being at the time engaged in interstate commerce.
    Plaintiff in error in its answer (as defendant in the court below) set up as a third defense the fact that the defendant in error (plaintiff below) well knew of the defects of which he complained and that he had known of them for a long time prior to the accident, and that he therefore, in doing as he did, with knowledge of such defect, assumed all the risks arising from the acts of the defendant of which he complained. The defendant in error demurred in the court below to this third defense, and the common pleas court sustained said demurrers on the ground that under the ■ federal employers ’ liability act of April 22, 1908 (35 U. S. Stat. at L. 65; Chap. 149; Supplement to Comp. Stat. 1911, page 1322), the defense of the assumption of risk had been entirely abolished and could no longer be pleaded. It was admitted that the said federal employers’ liability act controlled this case, and also, that there was no violation of the federal safety appliance act.
    Upon trial a verdict was rendered in favor of the defendant in error, motion for a new trial argued, overruled, and the case taken on error to the court of appeals. At the close of the evidence, and before argument, plaintiff in error submitted a number of special charges to the common pleas court, some of which were refused; among others refused were the following:
    Special Charge No. 14: “I charge you as the law that the plaintiff cannot recover from the defendant on account of his injuries, if you find from the evidence that the defects of which he complains were known to the plaintiff, no matter how negligent the defendant- may have been. Under these circumstances the plaintiff assumes the risk and if injured cannot recover.”
    Special Charge No. 18: “I charge you that an employee assumes the risk of the ordinary dangers of his occupation and also those risks which are known to him or are so clearly observable that he may be presumed to know them. And so if you find from all the evidence in this case that the plaintiff was injured while in the discharge of a duty involving the ordinary dangers of his occupation, or if in the discharge of that duty he voluntarily placed himself in a position of danger which was known to him or which was clearly observable by him, or in the exercise of ordinary care should have been clearly observable by him, he assumes the risk of his act and cannot recover damages from the defendant.

      M. R. Waite, Nevin & Kalbfus and Fisher & Crisler, for plaintiff in error.
    Cited and commented upon the following authorities: Bowers v. Railway, 10 Ga. App. 367; Hall v. Railway, 169 111. App. 12, 17, 19; Barker v. Railway, 88 Kan. 767 [129 Pac. Rep. 1151]; Freeman v. Powell, 144 S. W. Rep. 1033 (Tex. Civ. App.); Neal v. Railway, 22 Idaho 74 [125 Pac. Rep. 331] ; Seaboard Air Line Ry. v. Horton, decided April 27, 1914, U. S. Supreme Court.

      Matthews & Matthews and Reisinger & Reisinger, for defendant in error.
    Cited and commented upon the following authorities: Philadelphia, B. & W. Ry. v. Tucker, 35 App. D. C. 123; Wright, v. Railway, 197 Fed. Rep. 94; De Alley v. Railway, 201 Fed. Rep. 591; Northern Pac. Ry. v. Maerkl, 198 Fed. Rep. 1; Doherty, Railroads.

      Reversing, Bunger v. Railway, 23 Dec. 619.

   FERNEDING, J.

This action -was brought under the federal employers’ liability act of 1908. The federal safety appliance act contemplated by Sec. 4 of the federal employers’ liability act had not become effective at the time of the injury complained of. The trial court adopted the view that the common law defense of assumption of risk was abolished by See. 1 of the federal employers’ liability act. Accordingly, the demurrer was sustained to the third defense embodying such defense, and such defense was not allowed to be considered in favor of the railway company during the conduct of the trial.

If we were called upon originally to construe Sec. 1 of the federal employers’ liability act we would strongly be inclined to hold the same view; but since the case has come into this court the Supreme Court of the United States, which is the highest authority upon the federal question involved here, has authoritatively decided that the common law doctrine of assumption of risk remains in force except as provided in Sec. 4 of the federal employers’ liability act. Upon the authority of the Seaboard Air Line Ry. v. Horton, decided April 27, 1914, by the Supreme Court of the United States, we hold that the trial court erred in sustaining said demurrer to the third defense. We are also of the opinion that the trial court erred in its refusal to give charges Nos. 14 and 18, requested to be given to the jury before argument by the defendant, to which refusal proper exceptions were noted.

The judgment of the common pleas court is, therefore, reversed and the cause is remanded to that court with instructions to overrule the demurrer to the third defense of the answer, and for further proceedings.

Decree accordingly.

Allread and Kunkle, JJ., concur,


author: SHIELDS, J.

text:
    STREET RAILWAYS.
    [Delaware (5th) Court of Appeals,
    May Term, 1915.]
    Houck, Shields and Powell, JJ.
    Eli M. West, Receiver v. Walter H. Gillette, Admr.
    1. Presumption of Control of Street Car at Street Intersection on Slippery Track and Down Grade.
    One approaching street car tracks at' a street intersection, driving a horse and carriage, seeing a street car at the summit of a steep grade, more than 300 feet distant, and having been first at the crossing, might properly rely upon the presumption that the car was traveling at proper speed when running down grade and under control; or if such driver were negligent in driving upon such crossing at the time and under the circumstances stated, the motorman, plainly 'seeing the horse and vehicle at the top of the slope and seeing the peril of the driver and his failure to heed the warnings sounded, had time, opportunity to avoid a collision by checking the speed or stopping the car and neglected to do so, the street car company would be liable for injuries so sustained, and the fact that the tracks were slippery would not excuse but demands increased vigilance, all of which being facts for the jury, a judgment for plaintiff will not be reversed.
    2, Last Chance Doctrine Applies to Collisions between Street Cars and Vehicles at Street Intersections.
    The “last chance” doctrine applies in an action for injuries resulting from a collision between a street car and horse and vehicle at a street crossing, where plaintiff avers that when decedent reached the tracks the street car was more than 300 feet away and that the motorman had ample time after seeing the peril of decedent regardless of contributory negligence of the driver, to check the fast speed of the car thereby to have avoided the collision; hence an instruction given the jury upon a request by the jury for repetition thereof; that “the car must be in the power of the motorman to such an extent as that when he saw the horse and buggy on the track * * * he would stop his car within a reasonable time and distance so as to avoid, if possible, the collision, correctly states the law, especially since there was uncontradicted proof that the vehicle and horse were in plain view of the motorman from the summit down.
    3. Motion to Direct Verdict Refused if Evidence Tends to Prove Material Allegations of Pleadings.
    In a negligence case, on motion to direct a verdict for nonsuit, there being evidence tending to prove the material allegations charged in the petition, the case should be submitted to the jury.
    Error.

      Harry F. West and Hough <& Jones, for plaintiff in error.

      Marriott, Freshwater & Wickham and George C. Snyder, for defendant in error.
   SHIELDS, J.

This was an action brought in the court of common pleas of Delaware county, Ohio, by Albert N. Gillette’s administrator to recover damages against Eli M. West, as receiver of the Columbus, Delaware & Marion Railway Company, for the death of the said Albert N. Gillette, alleged to have been caused by the negligence of the said railway company while the said Albert N. Gillette was on January 11, 1913, driving his horse attached to a buggy upon and over the crossing of Olentangy avenue and Sandusky street within the corporate limits of the city of Delaware, Ohio.

The negligence charged in the plaintiff’s petition filed in the court below was, in substance, that the motorman in charge of one of the interurban cars of said railway company, in operating the same between the said city of Delaware and the city of Columbus, Ohio, in the afternoon of said day, when approaching said crossing at down grade from the summit of an elevation some 300 feet distant therefrom, and when in full view of the said Albert N. Gillette while driving on said Olen-tangy avenue up to and upon said crossing and in an effort to cross the same, carelessly, negligently and unlawfully run said car at a high, reckless and dangerous rate of speed in utter disregard of the rights of the said Albert N. Gillette upon said crossing, without giving warning by whistle or otherwise of the approach of said car to said crossing, which said car struck the horse and carriage of the said Albert N. Gillette, with great force and violence when upon said crossing, throwing him out of said carriage upon the ground, causing concussion of the brain and great internal injuries, from the effects of which he died. Other averments of negligence in connection with the killing of the said Albert N. Gillette at said time and place were contained in said petition, which appear in the discussion of the facts in this opinion. Damages in the sum of $10,000 were prayed for.

Tn his answer to said petition said receiver admits that the said Albert N. Gillette collided with one of the cars operated by the defendant as receiver, at the time and' place stated, and that he died shortly thereafter, but denies all the other allegations of said petition. He further avers that if upon the trial it should appear that the defendant was guilty of negligence as charged in said petition, that the decedent was guilty of negligence directly contributing to his injury and death, in that he started to cross the tracks of the defendant at the point of the collision without first exercising care to discover the approach of the car of the defendant.

For reply to the second defense in said answer the plaintiff denied all the allegations therein charging negligence directly contributing to the injury of the said decedent.

Trial was had upon the issues thus made resulting in a verdict and judgment for the plaintiff. A petition in error with a bill of exceptions containing the evidence taken upon the trial, including the charge of the trial court to the jury, was filed in this court for a reversal of said judgment.

Numerous assignments of error are contained in said petition in error, but we will consider more particularly such as were urged upon the attention of this court and upon which the plaintiff in error relied.

It was urged that the court below erred, in overruling the motion of the plaintiff in error for an instructed verdict in its favor at the conclusion of the evidence introduced in behalf of the plaintiff below and again renewed at the close of all the evidence in the case. We think the law is well settled in this state as to the duty of the trial court where a motion is interposed in a case to direct a verdict, or for nonsuit, the authorities holding with practical unanimity that where there is evidence tending to prove negligence of one party or the other, the case should be submitted to the jury.

In Stockstill v. Railway, 24 Ohio St. 83, it is held that:

“If the evidence tends to prove all. the facts which it is incumbent on the plaintiff to establish in order to maintain his action, he has a right to have the weight and sufficiency of the evidence passed upon by the jury, and it is error for the court to grant the motion and render a judgment against him.’’

In Dick v. Railway, 38 Ohio St. 389, it is held that:

“A motion to arrest the testimony from the jury and render a judgment against the party on whom the burden of proof rests, .involves an admission of all the facts which the evidence tends to prove, and presents only a question of law for the court; but if there is evidence tending to prove each material fact put in issue, and indispensable to a recovery, it should be submitted to the jury under proper instructions.”

In Gibbs v. Girard, 88 Ohio St. 34 [Ann. Cas. 1914c, 1082], it is held that:

“'A cause of action for damages'brought against a village for negligence in the care of its sidewalks, by reason of which it is claimed plaintiff was injured, presents a jury issue if there is some evidence tending to prove every essential fact necessary to entitle plaintiff to recover; and, an order of the trial judge at the close of the plaintiff’s ease directing a verdict in favor of defendant over the objection of such plaintiff is a denial and violation of the right of trial by jury and therefore reversible , error. ’ ’

And Judge Wanamaker speaking for the court in said case, on page 47, says:

“So long as the trial by jury is a part of our system of jurisprudence its constitutional integrity and importance should be jealously safeguarded. The right of trial by jury should be as inviolate in the working of our courts as it is in the wording of our constitutions.”

From the foregoing and from numerous other like decisions by the courts of this state, it will be seen that the duty of the trial court is made clear in a case on a motion to direct a verdict wherein the evidence tends to support the material allegations charged in the petition. Applying this rule of law to the facts in the case at bar, was the action of the trial court in overruling said motion within the limitations of said rule? An examination of the record shows there was no little conflict in the evidence in reference to at least some of the material facts put in issue, namely, the rate of speed at which the car in question was being operated, the gait at which the horse of the decedent was being driven, and the location of the horse and carriage at the time of the aceident, all of which were material and important facts as affecting the right of recovery by the defendant in error, and in the light of the foregoing citations we are of the opinion that the action of the court below in overruling said motions was proper.

It was also urged that the verdict of the jury is clearly against the weight of the evidence, because it was contended that the decedent’s death was the result of his own negligence ■and was not wholly due to the negligent act or acts of the motorman in charge of said car. Not unlike most cases of this character, the liability of this company here, if any, depends upon a very few controlling physical facts in the case, and the law when applied to such facts ought not to render the case difficult of solution. An examination of the evidence contained in the bill of exceptions shows that as one of the defendant’s interurban cars reached the summit of the elevation north of the intersection of Olentangy avenue and Sandusky street at said crossing, a distance of about 325 feet, the motorman in charge of said ear saw the decedent’s horse and carriage, with the curtains on said carriage and a rain-apron fastened in front of the seat of said carriage, through which said apron was an opening for the handling of the lines upon said horse, approaching the tracks of said railway, on said avenue, and while in the act of crossing said railway tracks said car collided with said horse and carriage resulting in the death of said Albert N. Gillette. The motorman testified that as said car left the summit of said elevation and descended towards said crossing said horse was walking on said avenue and was about fifty feet distant from said railway tracks on said crossing, that said car was then running from eight to ten miles an hour, that upon sounding the whistle on said car and noticing that no apparent heed was being given to it, he sounded further danger warnings, and when said car was about one hundred and fifty feet from said crossing, acting upon what he assumed to be a checking or stopping of the horse “just as he was about to cross the tracks, ’ ’ he released the air and as said car passed, over said crossing it collided with said horse and carriage. That a drizzling rain was falling on said day which rendered the surface of the tracks of said railwáy company wet and slippery. He further testified that he was familiar with the surroundings at said crossing, that he pássed over said crossing some six times daily in making his runs to and from Columbus, that he knew there was a hedge fence on the north side of the traveled portion of said Olentangy avenue and that said crossing was known to be dangerous. That the whistle on said ear was sounded substantially as claimed by the motorman does not seem to be disputed, nor is the distance that said decedent was seen to be traveling toward and near to said crossing with said horse and carriage as said car descended said hill or elevation seriously in dispute, although the testimony of the motorman in this respect is not wholly borne out by persons aboard said car as passengers, especially as to the distance of said car from said crossing when the last danger signal was given and the position of the horse and carriage at that time, the main conflict of testimony being as to the rate of speed said car traveled from the summit of said elevation to and over said crossing. Joshua Stickney, a witness for the plaintiff, who was a passenger on said car, testified, in substance, that when said car descended said elevation from the summit thereof to said crossing it was running twenty miles an hour or more, that there was no change in the rate of speed traveled by said car during said distance. That when said ear was within seventy-five feet of said crossing there was a sharp shrill whistle blown when he jumped up from his seat, that he looked out through a window and saw the carriage about seventy-five feet from the crossing. That the horse was then jogging on a trot and when he again looked out, the carriage was then from twenty to twenty-five feet from the crossing and that it was about this time that the car seemed to strike it. Other witnesses testified in support of the- contentions of both the plaintiff and defendant. The undisputed testimony was that the right hind leg of the horse was broken, that the carriage was demolished, that the body of the decedent was hurled some thirty feet from the crossing, and that he thereafter died from the injuries received in said collision. Was said verdict returned clearly against the weight of the evidence given upon the trial? The plaintiff in error vigorously contended that the evidence fully justified their contention that the decedent’s death was wholly due to his own negligence in attempting to pass over said crossing without exercising that degree of care necessary to avoid danger. The rule that a party about to cross a known place of danger is called upon to exercise his senses of sight and hearing and to do everything that a prudent man would do under similar circumstances to avoid being injured, is held in Cleveland, C. C. & I. Ry. v. Elliott, 28 Ohio St. 340, and in numerous other authorities that might be cited to the same effect, but the last pronouncement by our Supreme Court on this subject in Steubenville & W. Trac. Co. v. Brandon, 87 Ohio St. 187 [100 N. E. Rep. 325], is that the omission to look before going upon a crossing is not negligence in all cases as matter of law. For aught that appears here it may be that the decedent looked before going upon said crossing, and in the absence of proof to the contrary the presumption is that he did so look, Interurban Ry. & Term. Co. v. Hines, 32 O C. C. 355 (13 N. S. 170); Continental Improvement Co. v. Stead, 95 U. S. 161 [24 L. Ed. 403]; Texas & Pac. Ry. v. Gentry, 163 U. S. 353 [16 Sup. Ct. Rep. 1104; 41 L. Ed. 186], and observing the ear at such distance as that he supposed and believed that he could safely pass over said crossing, and attempted to cross, if he did, this would not be negligence, or observing said car at the summit of said elevation and his horse and carriage being plainly visible to the motorman in charge of said car, and being first at said crossing, he may have relied upon h'is right to cross over said crossing before said car, even though the motorman was called upon to slacken the speed of said car, or, if necessary, to stop the same to avoid a collision. The first at said crossing under the facts stated, had the right to cross, for a street ear company must operate its cars with reference to the rights of others traveling on a street and over street crossings. The motorman testified that he saw this horse and carriage ap-proaehing said crossing when some 300 feet distant therefrom, and it seems that he saw them plainly, too, for he testified that he even saw the opening in the rain-apron for the lines, and if this is true, did he not have ample time and opportunity to get his ear under control before reaching said crossing as to have avoided the injury that followed said collision? Having seen the horse and carriage approaching said crossing at such distance, and about to cross, and on the crossing at the time of the collision, in the face of testimony that there was no change in the speed of the car from the summit of said elevation to said crossing, even in view of the claim of the motorman that the ear was running but eight or ten miles an hour and that the horse apparently halted, as claimed, what was left for the jury to do under proper instructions? Concerning the relative rights of the public and traction companies at street crossings, in Toledo Elec. St. Ry. v. Westenhuber, 12 Circ. Dec. 22 (22 R. 67), the circuit court of Lucas county held, in a collision case between a street ear and a carriage crossing the tracks of a street railway at the intersection of two streets that:

“1. It is negligence in the motorman of an electric street car when the car is from 150 to 200 feet from a street crossing, and he sees a wagon about to cross the track, not to try to stop or slacken the speed of the car until almost at the crossing, when by so doing the collision which ensued might have been' - avoided.
“2. It is not negligence in the driver of a wagon to attempt to drive across a street ear track ahead of an approaching electric ear, when the ear is so far away that by the exercise of reasonable care it might be stopped before reaching the place of crossing.”

In Harris v. Railway, decided by the court of appeals for Cuyahoga county, and reported in 36 O. C. C. 17 (21 N. S. 209), it is held that:

“A street car company has only equal rights with the driver of a horse, or a pedestrian, at a street crossing, and therefore it is the duty of the motorman as he approaches the street crossing to have his car under control and to keep a constant lookout, not only ahead, but also to the right and left, so as to discover persons upon the track or approaching it without noticing or heeding the approaching car, so that he may allow them to pass over in safety. ’ ’

In Greve v. Traction Co. 36 O. C. C. 26 (21 N. S. 331), the court of appeals for Hamilton county held that:

“In an action by a driver who was thrown from his seat and injured in a collision between a traction car and his vehicle, it is error to direct a verdict for the traction company where the evidence tends to show that the vehicle could have been clearly seen by the motorman, crossing from one side of the street to the other, in time for him to have avoided the accident by stopping or cheeking the speed of the ear.”

In Lake Shore & M. S. Ry. v. Schade, 8 Circ. Dec. 316 (15 R. 424), it is held that:

“If the decedent in this case was negligent in going upon the track in the manner and at the time he did, yet if the engineer in charge of the train ought, by the exercise of ordinary care, to have seen the decedent in his perilous position, and could, by the exercise of ordinary' care, have stopped or checked the speed of the train so as to avoid a collision, and failed to do so, it was negligence for which the company is liable, notwithstanding the negligence of the decedent in going upon the track.
“If the decedent was negligent in going upon the track as he did, yet if after such negligence the persons in charge of the train, by the exercise of ordinary care, could have seen the decedent in his dangerous position and stopped or cheeked the speed of the train and avoided the injury, and they failed to do so, they were guilty of negligence, and such negligence is the proximate cause of the injury, and the railroad company is liable.”

The same rule was also followed by the circuit court in this district in the case of Mansfield Ry. L. & P. Co. v. Kiner, 35 O. C. C. 175 (17 N. S. 175), which was affirmed by the Suprpme court.

And in Steubenville & W. Trac. Co. v. Brandon, supra, p. 196:

“It is not negligence in the driver of a vehicle to attempt to cross a street ear track ahead of an approaching car so far away that by the exercise of reasonable vigilance on the part of the motorman it might be stopped or checked before reaching the crossing.”

It would seem that the foregoing adjudications ought to be decisive of the rights of the public and street ear companies at street crossings, but it is contended that the evidence shows that the death of the said Albert N. (lillette was caused by .his own negligence — that his negligence contributed to his injuries and consequent death. As already stated, when about to enter upon said crossing he may have relied on the presumption of said ear being at such distance, and under control of the motorman, especially when running down grade, as that he could safely pass over it, or, having been first at said crossing and said ear being, some 300 feet distant and presumably traveling at such speed as that the motorman would not be unmindful of the rights of the public at said crossing, he attempted to cross, or he may even have been guilty of negligence in driving upon said crossing, but if the motorman after having seen the horse and carriage at the place and in the condition stated by him, and if after having seen the peril of the decedent, if he did, and he then had time and opportunity to avoid a collision between said ear and said horse and carriage by checking or even stopping said car, and he neglected to do so, would not such neglect be actionable-negligence 'and be regarded as the proximate cause of the said Albert N. Gillette’s death? If guilty of such neglect, we think a liability would follow from the rule laid down in Steubenville & W. Trac. Co. v. Brandon, supra, which appears to have been followed by the trial court in its instructions to the jury. It was urged on the part of the plaintiff in error that it was impossible for the motorman to avoid said collision because of the close approach of said car to said crossing and because of the slippery condition of the surface of the tracks of said railway after the apparent halting of said horse and after the motorman released the air of said ear.

The inquiry naturally arises that if the tracks were slippery, would not such fact require increased vigilance on the part of the motorman to see to it that the ear be kept under safe control? Such inquiry would seem pertinent when it is considered that said ear was running down grade according to the testimony of engineer Core, just prior to reaching said crossing. In commenting upon the necessity of a motorman keeping a ear under control when descending a grade, 2 Thompson, Negligence Sec. 1395, says:

“Upon the question what rate of speed is to be deemed unreasonable or dangerous, no exact definition can be made; biit the obvious conclusion of reason is that a rate of speed which prevents the motorman from maintaining control of his car so as to stop it within a reasonable distance upon an appearance of danger to others, falls within this category, and, on the other hand, that a rate of speed which, although greater than usual, does not prevent the motorman from keeping his car well in hand, and does not endanger persons using the street with reasonable care for their own safety, is not negligent or blameworthy. The true view is that the railway company must not adopt such a rate of speed as will prevent its motorman from keeping control of the ear, especially upon a down grade, and if a car can. not otherwise be kept under control, the sanding of the tracks may be regarded as a reasonable means to be adopted for that purpose, the failure to resort to which may be negligence.”

But as we view it, this was a question of fact, including the conduct of the motorman in respect' to the speed at which he was operating said car between the summit of said elevation and said crossing as tending to show whether or not he was exercising reasonable care in the management of said car, and including also the circumstances under which said decedent drove upon said crossing for the purpose of passing over the same, all of which were questions of fact as bearing upon the alleged negligence of the defendant, or contributory negligence of the decedent, which were to be submitted to and determined by the jury under proper instructions. Gibbs v. Girard, supra. Upon a review of this record we are of the opinion that said verdict is not clearly against the weight of the evidence, nor is the same unsupported by evidence sufficient to warrant said verdict.

It was urged that the court below erred in its instructions upon the law to the jury, and upon a request made for further instructions that said court further erred in repeating such erroneous instruction to the jury. It appears that after said court had instructed said jury and after they had retired for deliberation they requested further instructions by said court, as appears by the following on page 115 of the record: ,

“Thereupon at 10 A. M. the jury retired to their room for deliberation, and at 1:30 P. M. the jury returned into court and asked for further instructions.

By the court: Gentlemen of the jury, the bailiff has instructed the court that the jurors have requested the court to give them further instructions on the law of this case. Is that correct, Mr. Foreman? Mr. Foreman (Mr. Willis): The jury merely wish to ask the court to read the part of the charge referring to a similar case where negligence may be found on both sides. It was not understood by all of the jurors, whether deficient ears or memory we don’t know.

By the Court: I will read it to you, gentlemen, having it in pencil form before me, that .part of the charge which has been requested by your foreman:
“In other words gentlemen of the jury, the decedent, Albert N. Gillette, may have been guilty of negligence in driving upon this track as he did, yet such negligence will not defeat the right of the plaintiff to recover, if the motorman saw the danger in which he was placed in time to have avoided colliding with him by the exercise of reasonable care and by the use of all of the means at his command, and negligently failed to exercise such reasonable care. That is, if you find that there was negligence upon the part of the railway company, and negligence upon the part of Gillette, in driving upon this track in front of an approaching car, then you will proceed and examine the conduct of the motorman after he had discovered, or by the exercise of ordinary care ought to have discovered, the danger in which the said Albert N. Gillette was at the time. As we have said, it was the duty of the motorman. to have his car under control; that is, the car must be in the power of the motorman to such an extent as that when he saw this horse and buggy on the track, or when by ordinary care in his duty of looking for vehicles he ought to have seen this horse and buggy on the track, he could stop his car within a reasonable time and distance so as to avoid, if possible, the collision.’ •
Do you desire the court to read any further?
Mr. Foreman: I guess that is sufficient, as far as I am concerned.
Court: You may retire.”

The foregoing instruction is claimed to be not only erroneous but prejudically erroneous for which the judgment below should be reversed. It is claimed by the plaintiff in error that the trial court in giving said instruction sought to introduce and apply the rule of liability under what is known as the “last chance” doctrine when the allegations of the petition of the plaintiff below do not warrant the application of such rule, and that the facts of the case are such as to defeat the right of said plaintiff to recover. What, then, is understood to be the doctrine of the “last chance”? In 2 Thompson, Negligence See. 1629, we find it defined as follows:

“Although a person goes upon a track negligently, yet if the servants of the railway company, after they see Ms danger, can avoid injuring him, they are bound to do so. And, according to the better view with reference to injuries to travelers at highway crossings, as distinguished from injuries to trespassers and bare licensees upon railway tracks at places where they have no legal right to be, the servants of the railway company are bound to keep a vigilant lookout in front of advancing engines or trains, to the end of discovering persons exposed to, danger on highway crossings; and the railway company will be liable for running over them if, by maintaining such a lookout and by using reasonable care and exertion to check or stop its train, it could avoid injury to them. ’ ’

This definition appears to have been adopted in Drown v. Traction Co. 76 Ohio St. 234 [81 N. E. Rep. 326; 10 L. R. A. (N. S.) 421; 118 Am. St. Rep. 844].

Looking at the averments of the petition of the plaintiff below we find that after averring that said decedent approached said tracks to cross the same, and while in the exercise of due care, said car approached said crossing at a high and dangerous rate of speed, it is averred that:

‘ When the said decedent started across the track of the defendants railroad, the motorman in charge of the said car could see the decedent starting across or upon the track with his said horse and buggy more than 300 feet away, and that said motorman knew that at the speed he was running the car, it would strike said horse and buggy before it could cross said track; but plaintiff avers that the decedent did not know the speed of the ear and could not learn its speed from his position, and avers that decedent reached the track when the car was at least 300 feet away, and had a right to cross said track, and that the agents, servants and employes of the defendant had ample time after seeing as they did the decedent crossing the track, to cheek the speed of the car and stop it and thereby have prevented the collision, and the plaintiff says that the agents, servants and employes of the defendant in charge of said car, negligently, recklessly and wilfully approached said crossing at a high rate of speed and ran against the horse and buggy of said decedent with great force and violence and thereby hurled him from the buggy to the ground.”

These averments, in our judgment, brought the ease within the rule stated and warranted the trial court in submitting said case to the jury under instructions embodying said rule of law. In giving said instructions the trial court appears to have followed the instructions in the case of Cincinnati Trac. Co. v. Jennings, 19 Dec. 338 (7 N. S. 462), affirmed, no op., Cincinnati Trac. Co. v. Jennings, 79 Ohio St. 435, wherein it is held that:

“It is not error to charge that where the jury have found that both the plaintiff (driver of a cab) and the motorman of the car which collided with the cab were negligent, they may then take into consideration whether the motorman had his car under control to such an extent that he could have avoided the accident after he saw, or by the exercise of ordinary care could have seen, the vehicle on the track.
“Nor is it error to charge that ‘it is not negligence in the driver of a vehicle to attempt to cross a street ear track ahead of an approaching car, when the ear is so far away that by the exercise of reasonable care it might have been stopped before reaching the place of the crossing,’ where the circumstances of the ease render such a charge appropriate.”

We are not unmindful of the contention made by the plaintiff in error as to the finding of the court on the rehearing of said case, but the Supreme Court held that the instruction given to the jury on the alleged negligence of the traction company and that of the decedent was a correct statement of the law.

Upon an examination of the facts in the case of Drown v. Traction Co. supra, we find the facts stated in that case to be entirely different from the facts stated in the case at bar. Here it is admitted that the motorman plainly saw said horse and carriage at all times from the time said car reached the top of said elevation to the time it descended said elevation and reached said crossing, and likewise saw, or by'the exercise of ordinary care could have seen, the peril of said decedent in said carriage, and neglecting and disregarding the rights of said decedent when upon said crossing in said carriage, carelessly and recklessly ran said ear upon and against said horse and carriage throwing said decedent out of said carriage and hurling his body some thirty feet and more distant, resulting in his death, while the former case involved a charge of negligence by the traction company for a violation of a city ordinance in failing to give warning of the approach of one of its cars on its tracks to one driving on such tracks in a street going in the same direction as said ear. It was not in any sense a street' crossing case and the holding made was made with reference to the particular facts in said case. In the matter of the elements of negligence laid as the bases of said actions, we are of the opinion that the cases are essentially different, and we are further of the opinion that the instruction given by the trial court to the jury was proper, that it contained a correct statement of the law as applied to the facts in the case, and that it fairly and impartially presented said case under the issues to the jury.

We have examined the other specifications of error in said petition in error and find no such error in the record as justifies a reversal of the judgment of the court below.

Upon an examination of the entire record, notwithstanding the errors complained of, we are unanimously of the opinion that the case is one in which substantial justice has been done between the parties hereto, that no substantial right of the plaintiff in error has been prejudically affected by the judgment herein and that said judgment ought to be and the same is affirmed, at the costs of the plaintiff in error. Said case will be remanded for execution.

Houck and PoweiJ, JJ., concur.