text:
    MUNICIPALITIES WITHOUT POWER TO FIX TELEPHONE CHARGES.
    [Circuit Court of Hancock County.]
    Charles H. Macklin, for Himself et al, v. The Home Telephone Company et al.
    Decided, December Term, 1902.

      Rights of Telephone Companies in Streets — Conferred Directly by Legislative Enactment — Municipalities Can Not Fix Prices for Telephone Service — Their Authority Limited to Mode of Use of Streets —Artifice by Company in Securing Franchise — Contract—Injunction — Estoppel.
    1. The right of a telephone or telegraph company to occupy and use the streets and alleys of a municipality with the fixtures and appliances necessary in the carrying on of its business is derived directly from the sovereign state by legislative grant, contained in Sections 3454 et seq. This right is absolute, and subject only to the right of the public to use the same public ways for public purposes, and to the manner of use agreed upon between the municipal authorities and the company, or prescribed by the probate court. The power of the municipality in that behalf is exhausted when it agrees upon such mode of use.
    2. In Ohio a municipality has no valuable right to confer upon a telephone company — nothing that the law will regard as a consideration either good or valuable to support a contract between the municipality and such a company, fixing a rate of charge for telephone service; and if a rate stipulated is to be enforced, it must be on some theory of estoppel rather than of contract.
    3. The H. T. Co. secured by a ruse the passage by an unwilling city council of an ordinance fixing the mode of its occupation of the streets. The artifice consisted in the incorporation into the ordinance. of an invalid provision fixing the rate of charge for residence telephones at $12 per year. Subsequently the company repudiated its agreement as to price, and refused to install its plant, unless eight hundred contracts were secured at $18 per year. Held: That in view of the fact that the company secured no more than its legal rights and the city parted with nothing of value, the company is not estopped from maintaining a charge of $18 per year, and injunction against such charge will not lie.

      Day, J.; Mooney, J., and Morris, J., concur.
    Appeal from Court of Common Pleas of Hancock County.
   The plaintiff, Charles H. Macklin, brings this suit in his own name, for himself and numerous other persons similarly situated and having like interests with himself. The Home Telephone Company of Findlay and the'city of Findlay are made defendants; and the action is to enjoin the telephone company, which is a corporation owning and operating a telephone plant in said city, from charging plaintiff and others a rate of more than one dollar per month for residence phones, and from removing phones from the residences of plaintiff and others because of their refusal to pay more than a rate of one dollar per month for such service; that sum, $12.00 per year, being the maximum rate of charge for residence phone service permitted to said company by the provisions of an ordinance duly enacted and published by the council of said city; the provisions of which ordinance it is averred were accepted by the said company and acted upon in the construction of it's said plant, the transaction constituting a solemn contract between the said city and said company, valid and binding on said company.

The right to an injunction in the case is based on the averments that the said company is demanding payment for such telephone service at a rate of $18.00 per year, or $1.50 per month, and is threatening to and will remove phones from the residences of plaintiff and others, and will refuse them telephone service altogether, unless they will'pay at the rate of $1.50 per month for each phone, and will deprive them entirely of telephone service, although they are willing and have offered to pay therefor one dollar per month as provided by said ordinance. It is also alleged that the said company is discriminating between plaintiff and others and against plaintiff -by charging others only $12 per year and refusing such rate to plaintiffs, to their great damage. The prayer is that said company be enjoined from discontinuing telephone service, from removing said phones from plaintiffs’ residences and from charging more than twelve dollars per phone 'per annum.

The city of Findlay, named as defendant, takes np the cudgel for the plaintiff and has filed an answer and cross-petition adopting all and singular the averments -of the petition as true, and then proceeds with particularity to show that the said telephone ■company was organized for the purpose of constructing and operating a telephone exchange for the city of Findlay; that it made .application to the city for a franchise for that purpose and by -its .agents prepared and presented to the city council the ordinance which was later passed, and procured its passage, granting to the ¡said company the right to construct such exchange by setting poles and stringing wires and occupying the streets and public places of the city for the purpose of building and equipping such •exchange; that it was expressly agreed by said company, as a condition of the passage of said ordinance, that the price for residence telephone service for regular patrons residing in the city should .not exceed $12 per year, and such stipulation and agreement was by said company incorporated into and made Section 3 of •said ordinance; that said ordinance was accepted and all. its terms agreed to by said company and the said exchange was •constructed with special reference to said ordinance and agreement as to rate of charges; and all this under such circumstances •of inducement as estops the said telephone company to deny or refuse to perform its contract'; that contrary to and in violation •of said ordinance and agreement the said company is charging many of its patrons $18 per year and has removed phones from the residences of many patrons, residents of said city, for refusal to pay said rate, and are thereby depriving many residents of said •city of residence telephone service on the sole ground that they ■decline to pay therefor more than $12 per year. The city prays .an order that the telephone company specifically perform its ■contract, and also injunction as prayed by the plaintiff.

The telephone company makes answer t:o the petition of plaintiff •and the cross-petition of the city of Findlay admitting many things alleged and denying many others. It also makes some ¡statements of fact in avoidance or rather defensive to the statements made against it, all of which .are put in issue by a reply. ‘The compamy especially denies that it has or proposes to diserimimate against any member of the public in favor of any other member, in the rate of charges for its telephone service; denies that it has threatened or is now threatening to refuse to perform and fulfill any or all of its contracts with individuals, firms or corporations for telephone service, and asserts the contrary; denies that it accepted the provisions of the ordinance 'as to the rates for telephone service fixed therein, especially as to the rate of $12 per annum fixed for residence telephone service; avers that said rate is unfair, unjust and unreasonably low, and that such service can not be supplied at said rate without loss to the company; avers that the said city has and had no right or power to fix the price the defendant company may demand and receive for its telephone service in said city; denies that it made any contract or agreement with, the city, or with patrons and residents of the city, for the supplying of telephone service at $12 per annum that it has not and will not fully perform, and denies all claim of estoppel.

The conceded and established facts as developed on trial arc-substantially as follows: The company was incorporated and organized for the sole purpose of constructing -and operating a telephone exchange in the city of Findlay. It applied to the proper city authorities for leave to occupy the public places, streets, etc., of the city for the purposes of its plant, and requested an agreement fixing the manner of use of said streets and public places. The council for a number of weeks omitted to do this, defeating an ordinance for that' purpose by a two-thirds vote on three different occasions, -and until a provision fixing a maximum price for telephone service to be charged by the said company was incorporated into the ordinance, when it was passed into law and fixed the manner of use of the streets of the said city by the defendant telephone company. This last-named ordinance was prepared -and presented to the city council by -an agent or agents of the telephone company, -and it's enactment urged by such agents; and under the provisions of that -ordinance the said telephone exchange was constructed and the streets, alleys and public places of the city occupied 'and used by the company. Some two hundred contracts for residence telephone service were made with residents at the rate of $12 per annum as- fixed by the said ordinance.

After all this the said telephone company determined not to construct a plant as originally intended and made a change in its plans and in it's system necessitating a greatly increased expense in construction and in operating, and determined not to build a plant at all unless it could procure not less than 800 contracts of patrons for residence telephone service at a rate of not less than $18 per annum per phone. The determination not to construct a plant, except upon the conditions named was published throughout the city and the result was that some 800 residents of the city entered into contracts -with the company for residence phones at the rate of $18 per year, and the telephone plant was thereupon constructed in the mode, as to- the occupancy of the streets and public ways, provided by the ordinance, with the improved and more expensive appliances last determined on by the company, and especially upon the consideration of the eight hundred contracts of resident patrons to pay $18 per year for residence phone service. The contracts for $12 per year, and as well the contracts 'at $18 per year, have been and are being carried out strictly. However, as fast as the $12 contracts expire by their own terms, and as to- all new contracts for residence telephone service -offered, the company 'declines to contract for or f-urnish such service a-t -a less rate than $18 per year, or $1.50 per month.

The difference in the sum charged for residence telephone service on the two hundred $12 contracts and the eight hundred $18 contracts constitutes the only discrimination between patrons that has been practiced by the defendant company.

The facts appearing would seem to relieve the defendant telephone company from the charge of willful wrongdoing -and contemplated and threatened wrongdoing to the damage of the plaintiffs and the city- of Findlay contained in the petition and the cross-petition of the city, unless the provisions of the ordinance settling the manner of use of the public -ways of the city, which fixes a price for residence telephone service at not more than $12 per year, was authorized by law and was, therefore, the proper and valid exercise of power by the city council; or, unless the said provisions fixing the maximum rate -of charge for such service at $12 per year was procured by the defendant company under such circumstances and upon such considerations as make it a valid and enforceable contract between the city and telephone company which the company is estopped t'o deny.

As to the first proposition — The power of a municipality to fix the price of telephone service:

The franchise or right of a telegraph or telephone company to occupy the public streets and alleys of a municipality and use the same for the purposes of “constructing lines from point to point, by the erection of the necessary fixtures, including posts, piers and abutments necessary for the wires,” is derived directly from the sovereign state by legislative grant contained in Section 3454, Rev. Stat., et seq., to be found in Title 2, Chap. 4, under heading, “Magnetic Telegraph 'Companies.” This right of use is absolute and subject' only to the easement or right of the public to use the same public ways for public purposes, and the mode or manner of use by the company must be agreed upon between the municipal authorities and the company, and failing, that “the probate court •shall direct in what mode a line shall be constructed along such street, alley, or public way, so as not to incommode the public in the use of the same,” etc. (see Section 3461, Rev. Stat.) The right of use of the streets and public ways by the telephone company is wholly beside and independent of the municipality, and, of course, is to be enjoyed like my other right, without let or hindrance from the municipality, except in the proper exercise of its police power and the efficient discharge of the duty imposed upon it by the provisions of Section 2640, Rev. Stat., to “keep, the streets, avenues, alleys, sidewalks, public grounds and bridges within the corporation open and in repair, and free from nuisance.” Power to discharge the duty imposed by Section 2640, Rev. Stat., in connection with the construction of a telegraph or telephone plant is given by Section 3461,.Rev. Stat., and is expressly limited to am agreement fixing the mode of use of the streets and public ways; and it would seem that the city’s whole duty, in connection with the building of a telephone plant, is performed and its power in that behalf is exhausted when it allows the company to use and occupy the public ways of the city with its “posts, piers and abutments” and other necessary appliances in the construction of its plant in a mode of use agreed upon between the city and such company. No further or additional power is expressly given the council in this connection; nor do we think other power is clearly implied or in any sense necessary to the proper exercise of the power of police or the duty to keep the streets open, in repair and free from nuisance. There appears to be nothing in the Constitution or the laws made in pursuance thereof that confers upon the council of the city power to fix the price of telephone service in the city of Findlay. We think the city, under the law of this state, has no more right or power to set a price on telephone service than it has to regulate and fix the price of dry goods, groceries or other commodifies in the same city. Perhaps the Legislature of Ohio might confer such power on a municipality, but it has not done so, and the city is destitute of power in that respect.

The views and conclusions here indicated are supported and enforced by a number of decisions of courts of last resort, in several states, where, as in this state, the right of occupancy and use of the public ways of a municipality is conferred directly by legislative grant, aside from and independent of the municipality. Notably so in Wisconsin (State v. Sheboygan, 86 N. W. Rep., 657 [111 Wis., 23]; Marshfield v. Telephone Co., 78 N. W. Rep., 735 [102 Wis., 604]).

The remaining question, Did the defendant company enter into a contract with the city, providing for residence telephone service within the city at a rate of $12 per year, under such circumstances and upon considerations that makes it a valid enforceable contract,, estopping the company to deny or avoid it, is one of more difSeulty.

There is a line of cases, and they are not at all uncommon, in which it is held, and no doubt correctly, on the facts and conditions present, that where a municipality by ordinance duly enacted has granted to a telegraph or telephone company the right to occupy and use its streets and public ways, and has fixed and settled the manner of such occupancy and use, and the privileges thereunder granted are accepted by the company and acted upon, the grant and acceptance becomes a binding contract between such company and the municipality, the obligations of which cam. ■not be avoided or impaired. (Kansas City v. Corrigan, 86 Mo., 67; People v. Telephone Co., 61 N E. Rep., 428 [192 Ill., 307]; Allegheny v. Railway Co., 28 Atl. Rep., 202 [159 Pa. St., 411]; Mutual Union Tel. Co. v. Chicago, 16 Fed. Rep., 309, and others). These holdings, however, are in cases and under state laws, where the sovereign powers of the state have, in a large sense, been delegated to municipalities, granting them general power over and almost absolute control of their streets, alleys and public ways; and the adjudications are, therefore, not even of persuasive authority in this state, but are rather to be regarded as a fairly strong argument to the contrary. In the cases last named, the municipality by virtue of delegated powers and legislative grant of general control over its streets, had something to confer — the right to use its- streets — which would answer as a consideration for an agreement of the company to give telephone service at a stipulated price. As is said in one case:

“In such cases the municipal corporation is to be regarded as a subordinate agency of government for the administration of local affairs, which the Legislature in its discretion has invested with the powers and prerogatives necessary to a complete government of its own affairs.”

In such case -the rights obtained from such municipality by a telegraph or telephone company would be very valuable and would likely be a good consideration for any reasonable promise or agreement as to rates to be charged for telephone or telegraph service, or in other regards, that such company might make. Not so, however, in this state, or in any state where the right of use of the public ways is given directly to the company from the sovereign by express legislative grant and there is only given to the municipality the power of police and the right to agree upon and fix the manner of such use, which right is not exclusive but is shared by the probate court, and is only in furtherance of the municipality’s plain duty to keep the public ways “open, in repair and free from nuisance.” Neither the police power nor the right to fix the manner of use is the subject-matter of barter, and both must be exercised exclusively in the interests of the public, for the public good and public welfare, and not' for public gain, and most certainly not for such financial advantage as might arise and inure to only a small portion of the public. So, if we are correct thus far, it would seem to follow that in Ohio a municipality has no yaluable right t'o confer on a telephone company; nothing, in fact, that the law would regard as a consideration either valuable or good, to support a contract between the telephone company and the city, fixing a rate of charge for telephone service, and if the rate stipulated is to be sustained and enforced, it must be upon considerations other than the conferring of a valuable right upon the telephone company to occupy and use the streets and alleys of the city; and upon some theory or doctrine of estoppel rather than contract.

It is likely if the defendant telephone company by indirection and deceit acquired some valuable concessions not belonging to it as matter of right, the city authorities being misled and induced to grant such concessions by the company’s agreement and promise to give telephone service 'at the low rate of $12 per year, such promise and agreement, might, with propriety, he enforced on the ground that the telephone company having profited by its wrong,is estopped to deny the wrong, or omit to perform the promise by which it secured a- benefit to itself.

If such condition and promise is made apparent from the facts adduced, the court will not be reluctant or slow in enforcing the agreement or in requiring full performance of the promise; for it is not believed to be good policy for the courts to decline to take notice in: such case and thereby allow a wrongdoer to realize a profit from wrongdoing. But in- this case, from a careful examination and analysis of the facts appearing, we are compelled to the conclusion that the claim of deception and misleading of the city authorities to its injury and to the benefit of the telephone company is not well founded, and that there is scarcely an element of equitable estoppel, or estoppel by conduct, suggested by anj1, evidence to which our attention -has been directed, but somewhat to the contrary. . ■

If, as we have seen, the telephone company had the right to use the streets, alleys and public places of the city direct' from the state, and independent from the city, then, on request of the company, it -become the duty of the city in the interests of the public and the requirements of Section 2640, Eev. Stat., “to keep the streets open and free of nuisance”; to promptly settle and fix the manner of such use. The city authorities did not do this promptly, or at all, until induced thereto by the telephone company by artifice. The city council procrastinated and delayed the matter unreasonably. An ordinance defining and fixing the manner of use, but without a provision fixing a rate of charges for residence telephone service, was defeated with emphasis on three different occasions, causing a delay of several months. In this situation, and being unable to agree on the manner of use, the telephone company could have taken the matter into the probate court and had the method of use fixed there, and thus got away from the council entirely. It, however, did not see proper to do this; but instead adopted and resorted to a different scheme or device. It prepared an ordinance not only fixng the mode or manner of use, but also fixing a rate of charge for telephone service for residences of $12 per year, and procured its passage by the council into a law. The conduct of the company’s representatives in the transaction was such as to leave the impression that they were willing to mislead the council, and so accomplish their purpose by indirection. The company does not appear to be altogether innocent and artless in the matter, and its attitude and conduct is not to be commended or approved; neither is it to be utterly condemned as wholly indefensible. I suppose, on occasion, innocent artifice may, to an extent, be indulged in, if the only purpose is to procure from an official body the prompt discharge of a palpably plain duty, and there is no ulterior motive involved and no misleading of such body to the loss or injury of the public or to the undue benefit of the party employing such artifice. In such case the results being good may be availed of, while we must deplore the means by which the results were obtained. In this case it was to the interest of the public that the council fix the mode of use of the streets by the defendant telephone company in such way as to least encumber and obstruct the free use thereof by the public; and it was the duty of the council to so fix the mode of use without recompense or subsidy, and a proper discharge of that duty seems to be all that was accomplished by the telephone company’s ruse.

Reed Metzler, for plaintiffs and the city of Findlay.

John Poe, J. B. Wright and W. L. Gary, Jr., for the Home Telephone' Co.

The provisions of the ordinance were not formally accepted by the company even as to the manner of use, although in that, respect the provisions were in fact accepted; but as to the provision fixing a rate of charges that was never accepted or acted upon, but was distinctly repudiated. Indeed, in that regard, it is made to appear by the evidence that the defendant company retired from the conference and determined not to construct a telephone plant at all unless allowed to charge a rate of $18 per year for residence telephone service and unless it could secure at least 800 contracts at that rate. This determination was proclaimed throughout the city and was generally known to the people of the city, and must have been known to at least some of the city officials; and was acquiesced in and assented to. Eight hundred contracts for yearly service at $18 per year were obtained from citizens, whereupon the construction of a plant was proceeded with and not before. This fact makes in favor of the telephone company and relieves it, in some measure, from the opprobrium, if any there was, attaching to its conduct in connection with the passage of the ordinance fixing the mode of use and a rate of $12 per year.

So, upon a consideration of the whole case, and inasmuch as neither plaintiffs nor the city parted with anything of value and were not induced to place themselves in a position involving loss or expense to relieve the situation, and the defendant company did not secure more than its legal rights, we do not perceive any elements of estoppel, either equitable or by contract in the case, and so conclude there is no merit in the contention of the plaintiffs or the city of Eindlay, and the petition and cross-petition are dismissed at costs to the plaintiffs and the city.

Judgment may be entered in accordance with the views herein indicated.


source: Caselaw Access Project

license: Public Domain

text:
    EASEMENTS IN STREETS AND PUBLIC GROUNDS.
    [Circuit Court of Cuyahoga County.]
    Bernhard Kuhn v. The City of Cleveland.
    Decided, July 27, 1903.

      Statute of Limitations — Laches of an Abutting Property Owner — A Municipality Trustee of its Streets and Public Grounds for All the People — Whether an Abutter Sued for the Benefit of Himself or the Public Determined, How.

      1. The individual rights of an abutter upon a street or public grounds in a municipal corporation, to have the same kept open and free from obstruction to his light, and ingress and egress to his property, may be barred by the lapse of time.
    2. Whether .an abutter brings suit for his own benefit alone, or in behalf of the public, will be determined from the allegations of his petition.
    Winch, J.; Marvin, J., and Laubie, J., concur.
    Heard on appeal.
   It appears from the pleadings and the agreed statement of facts in this ease that in 1837 a large tract of land, which was then in Ohio City, was platted and subdivided into what is known as the Willeyville Allottment, a map of which is recorded in Yol. 2 of Maps, page 16, of Cuyahoga county records.

By the intersection of Lorain, Abbey and Brainard (now Gehring) streets, as shown on this plat, a triangle is formed and the triangular space at the center of the intersection of these streets, and not within the designated width of said streets were the side lines thereof produced through this space, contains about one-eighth of an acre. No lines are drawn through this space; the only boundaries shown on the map are the outside lines of the three streets named. There are no monuments shown defining the corners of this inner triangle.

The certificate attached to the plat reads as follows:

“The name, bearing and width in feet of each street is entered within its respective lines. The width of each alley is entered with figures and within it's respective line representing its width in feet and inches. The number of each lot is entered with red figures in the center of its respective lot, and the length of each lot-line is entered with black figures upon its respective line representing its length in feet and inches. As to the public ground more than what is contained in the streets will be seen by inspection of the plat ”

There are eight or nine other triangular spaces at the intersections of streets and alleys similar to the one described; no other spaces not contained in streets, alleys or lots appear on the plat .and there are no premises marked “public ground.”

In 1848, pursuant to legislation of the council of Ohio City, a building was erected upon the triangular piece of ground in •controversy and used with the necessary fire-extinguishing apparatus as appurtenant to the fire department of Ohio City. The •council of said Ohio City again, in 1851, authorized the construction of an engine house on said land and the organization and maintenance of a fire company therein. The building was erected, •equipped and maintained as a part of the fire department of Ohio City until its annexation to the city of Cleveland in 1854. Since said annexation the city of Cleveland has maintained a fire engine house there. In 1858 a brick engine house was built upon said •site and in 1869 and again in 1872, the city of Cleveland made additions thereto.

It is admitted that' from 1848 down to the present time, Ohio City and its successor, the city of Cleveland, have been in the ■continuous, exclusive and notorious occupancy of said triangular piece of ground, maintaining thereon a fire-engine house with the '¡necessary equipment, as part of the city fire department.

The city is about to make extensive alterations in said engine louse which amount practically to a re-building thereof.

The plaintiff is the owner of a large brick apartment dwelling .and business block situated on Abbey street, diagonally opposite from the engine house and he has filed his petition, claiming that the land upon which the engine house is situated is part of the highway and is public ground; that the engine house is an obstruction thereto and, therefore, a nuisance, and praying:

“That a temporary restraining order may be allowed by this •court restraining defendant from proceeding to contract and expend money for any alteration of and rebuilding of said building on said highway and public ground, and that on the final hearing of this case an order and decree may issue requiring said defendant to abstain from the further obstruction of said highway and public ground, and from the further maintenance upon the same of the said building, and from the use of the same, and that the defendant be further ordered and directed t'o abate the nuisance thereby occasioned, and to remove from said highway and public ground said building and all obstructions in and about the same or used in connection therewith, and to restore such portion of said highway and public ground so occupied by said building to such condition as will enable said highway and public ground so occupied by said building to- be used by this plaintiff and by the public generally as and for highway and public ground, and for such further relief as equity may require.”

The city, as one of its defenses, pleads the lapse of time; for over fifty years the general public h'as acquiesced in its use of this triangular piece of land, and plaintiff himself has acquiesced for at least twenty-five years.

Plaintiff, however, urges that lapse of time will not bar the public; that the city by the dedication contained in the plat and acceptance thereof became a trustee of said land under a subsisting and continuing trust for the uses and purposes for which said lands were dedicated. That the city is trustee for all the people of the state and time never runs against the state.

In this view of the case it is material to examine the petition and determine whether plaintiff has brought suit for his own benefit alone or in behalf of the public. Williams v. Presbyterian Society of Cincinnati, 1 O. S., 478, 508, 510.

It is true that' plaintiff alleges that he requested the city director of law to bring this action and that he refused to do so. But the plaintiff does not allege that upon such refusal he instituted this suit in his own name, on behalf of the corporation, as provided in Section 1778, R,. S. O.

This court in the market house case (Herrick v. City of Cleveland, 7 C. C., 470) held that compliance with Sections 1777 and 1778 of the statutes was necessary only when the plaintiff brought his action in behalf of the public generally, and that one who has been damaged in his own property rights by a failure of the city to perform its legal duty or to carry out a trust as to streets, may sue the city to enjoin such continuing injury to him, and to enforce such trust, without first requesting the city solicitor to bring the action, providing the injury to him is different from that done t'o the public generally. So it seems that the nature of -the injuries complained of, whether they affect the plaintiff peculiarly, or the public generally, determine the character of the action.

What are the allegations of the petition in this respect?

First we notice an absence of any allegation that the plaintiff institutes suit in his own name on behalf of the corporation and we find no allegation that plaintiff brings his action in behalf of the public. He does say, however, that “he is and for twenty-five years has been the owner in fee simple of land adjacent to and abutting upon said highway and public ground, which said land of plaintiff is occupied by him with a large brick apartment dwelling and business block, the value 'and use of which and of his said land are greatly and especially enhanced by reason of their abutting upon said highway and public ground, thereby rendering access to, egress 'and outlook from, and the use of plaintiff’s said premises more commodious, better and inore advantageous; and such public ground and highway, by reason of the fact that by law it is to be, and plaintiff is entitled to have it forever, open and free -from buildings, obstructions and all permanent occupancy, is therefore useful and beneficial to plaintiff and his said land and improvements far exceeding its usefulness and benefit to the public generally and for the same reason the possession and occupancy thereof by defendant hereinafter set forth is especially, peculiarly, and irreparably injurious to plaintiff and his rights and interests far beyond the injury caused to the public generally.”

Describing the engine house plaintiff says: “The said obstruction and occupancy interferes with the uses of and constantly diminishes the natural value of plaintiff’s said property as aforesaid.”

Denominating the engine house a public nuisance the plaintiff continues: “except for the relief herein prayed for, this plaintiff, suffering constant and daily injury to his said property, wholly irreparable at law, is and would be without remedy unless restrained by this court.”

Riley & McQuigg, for plaintiff.

Director of Law, for defendant.

Enough has been quoted from the petition t'o show that plaintiff ■has not sued in behalf of the public, but' only for redress of injuries to his private property. The statute runs against him.

“The right to a public easement may be lost by an adverse possession, just as a private right may be. We do not, of course, speak of easements belonging to the state.” Williams v. The First Presbyterian Society, 1 O. S., 478, 510; Cincinnati v. The First Presbyterian Society, 8 Ohio, 298; Cincinnati v. Evans, 5 O. S., 594.

If the statute of limitations runs in favor of the private rights ,of an individual against the city, we do not see why it does not run in favor of the city against the private rights of an individual. Such is the case here. We are asked to protect private rights and not the rights of the public, and we hold that by the laches of the plaintiff he is barred.

This view of the case makes it unnecessary to determine the meaning of the dedicatory language used on the plat and whether the engine house site was intended to be dedicated as part of the public highway or as public grounds; and if the latter, whether the use of it for fire department purposes is lawful. A careful and exhaustive opinion on this branch of the case was delivered by the learned judge who tried this case in the court below. We concur in his conclusions, but prefer to determine the case upon the grounds stated.


text:
    DAMAGES FOR. ASSAULT AND BATTERY.
    [Circuit Court of Wood County.]
    Michael Henning v. John J. Bartz.
    Decided, April Term, 1903.

      Assault and Battery — Testimony in Civil Actions as to Reputation— Damages so Small as to Warrant a Reversal — Affidavits on Motion for New Trial.

    1. A reviewing court can not take notice of affidavits offered on a motion for a new trial, unless they are incorporated In a bill of exceptions.
    2. In an action for damages for assault and battery, where the defense of self-defense is set up, testimony as to the general reputation and character of the plaintiff as a fighting and quarrelsome man, and of specific instances of assault is competent, if such reputation or instances- have come to the knowledge of the defendant.
    3. A judgment which is so small as to be clearly contrary to the weight of the evidence, considering the injury sustained, may be reversed on that ground.
    Hull, J.; Parker, J., 'and Haynes, J., concur.
    Error to the Court of Common Pleas of Wood County.
   This action was brought in the court of common pleas by Michael Hecming, plaintiff in error, against John J. Bartz, to recover damages for 'an assault and battery which he claims, was made upon him by the defendant. The parties stand here the same as in. the court below,, plaintiff 'and defendant. The plaintiff asked for damages in his petition in the sum of five thousand dollars.

The defendant in his answer sets up that the plaintiff assaulted and struck him, and that what he did, he did in self-defense. The ease was tried and a verdict returned in favor of the plaintiff for the sum of one dollar, and the plaintiff prosecutes error to reverse the judgment which was entered upon that verdict, claiming, that although the verdict was in his favor, that it was m an amount so small as to be contrary to the weight of the evidence and contrary to law. One of the claims made by the plaintiff is that he was prejudiced by the absence of a witness upon the trial of the case, and this was made one of the grounds for a new trial in the court of common pleas upon the motion, -amd affidavits were filed. It was stated -in the argument that this witness had been subpoenaed and that he had promised to be present, and that the affidavits showed that’ his testimony was material. It was also stated that upon the trial of the case, counsel for the plaintiff stated to the trial judge that this witness had been subpoenaed amid that plaintiff expected him to be present; he did not appear, but no application was made for a continuance of the case nor for a postponement at any time during the trial of the action on this account. It is claimed that the testimony of the witness was important; and it is argued that the court of common pleas should have granted a new trial for that reason. The bill of exceptions, however, does not disclose any of these facts as occurring, either upon the trial of the case or after the trial upon the motion for a new trial; the affidavits are not attached to the bill .of exceptions, and no bill of exceptions was made upon the action of the court in overruling the motion for a new trial upon this ground.

A reviewing court can not take notice of affidavits offered on a motion for a new trial, unless they are incorporated- in a bill of exceptions. There is no certificate of the court below here that these affidavits were the evidence offered upon the motion for a new trial — no certificate that' this was all the evidence offered upon the motion; therefore that question is not properly before us. It may be said, however, in passing, that it is conceded in argument that the testimony of this witness Henry, would be cumulative only; his testimony being of a character similar to that of the plaintiff below, he claiming that Henry was present at the time of the, occurrence.

One of the chief claims of error is the admission of certain testimony on the trial of the case bearing upon the -character of the plaintiff and his disposition, and upon the knowledge that the defendant had of that at the time of the alleged assault, that is, bearing up-omi the character of the plaintiff as to being a fighting man or of a quarrelsome disposition. The record shows that these men met upon the morning of the day in question and had a struggle, and each one claimed the other struck the first blow; the defendant claiming that the plaintiff struck first, and that' what he did was in self-defense.

The defendant claims that they met at or near a livery stable, and had some words in regard to a small bill which the defendant had against plaintiff for work; the plaintiff refused to pay it and charged him with stealing sand, and claims that thereupon, after some words, the plaintiff struck him and attacked him, and that to protect himself, he being a shorter man than the plaintiff, he clinched him, and being unable to use his hands as he claimed, he butted him, and that they finally fell, the defendant falling on top of the plaintiff. The testimony is somewhat conflicting as to what occurred after they fell; the plaintiff claiming defendant struck him several times after he fell, and the defendant being uncertain as to how many times he struck him; the defendant claiming all the time that what he did, he did in self-defense. He said he was afraid of the plaintiff and was afraid that he would injure him, and when he was asked why he was afraid of him, he answered because he had “licked so many men.” This testimony was objected to as incompetent — his statement that he .was afraid of the plaintiff because he had “licked so many men.” Prior to that' a witness had been called and asked as to the reputation of the plaintiff for being a fighting, quarrelsome man. An objection to the question was sustained by the court, and an offer was made to prove that he was of a quarrelsome, fighting disposition. After that a witness by the name of Knoke was called and testified as shown by the record on page 41 that he saw plaintiff hit a man by name of Slaughter-back and also some other man. Objection was made to that, and the question was asked: “What do you know of his fighting, if anything?” Objection was made, overruled and exception taken, and he answered “I saw him hit Sam Slaughferback.” Then he was asked another question: “Who else have you seen him hit, if anyone?” And he gave the name of the other man.

No objection was made to that question and no exception taken. The testimony of the' defendant and perhaps of the plaintiff tended to show that the defendant, Bartz, had knowledge of the fact, that Henning had fought, or struck, or'whipped Slaughter-back.. After the fight, it was testified that Bartz said, ‘Til have. you to understand that' I am no Slaughterbaek,” and some other remarles were made showing he had knowledge of plaintiff having had trouble with Slaughterback, so that these objections raise the question as to whether in an action of this kind it is competent to show the character and disposition of the plaintiff — competent to show that the plaintiff had assaulted and whipped other men, and that the defendant, at the time of the fight or the assault, had knowledge of this.

If is claimed by the plaintiff in error that the general character of the parties in a civil action is not in issue, and that it is not. competent to show what the character or reputation of the parties is. In a case of assault and battery it is claimed that the character of the plaintiff for peaceableness or otherwise is not in issue, and this is the general rule in civil actions; but there is in this ease the element of self-diefense, the defendant claiming that he acted in self-defense, and claiming that under the circumstances, in view of the-character of the plaintiff, and in view of his knowledge of his character, he had a right to do what he did, and had good reason to-suppose that he was, at the time, in danger. It is true that the plaintiff in this case denies that he assaulted the defendant, but if the testimony is competent' upon the claim of the defendant that what he did, he -did m self-defense, then it was properly admitted. There seems to be no doubt that in a criminal case testimony of this kind is competent where the defense is self-defense; the state of mind of the defendant 'being one of the things to be considered, on the question as to whether he believed, and had good reason to believe, that he- was in danger; and the Supreme Court has said in the 26th Ohio St., in the case of Marts v. The State of Ohio:

“On the trial of an indictment for murder, the prisoner may, for the purpose of showing that the homieidie was justifiable on the ground of self-defense, prove that the deceased was a person of violent, vicious and dangerous character, and that that character was known to the prisoner at the time of the reoontre between them.
“Homicide is justifiable on the ground of self-defense, where the slayer in the careful and proper use of his faculties, bona fide believes, and has reasonable ground to believe, that he is in immident danger of death or great bodily harm, and that his only means of escape from such danger will be by taking tbe life of his assailant, although in fact he is mistaken 'as,to the existence or imminence of the danger.”

That was an indictment for murder, but the same principle applies here. This question is discussed in the opinion in the above case and it is laid down there as the law that in a case where self-defense is claimed, the general character of an alleged assailant may be shown, and -his general reputation, upon the theory that if he had the reputation of being a dangerous man, it probably had come to the knowledge of the defendant.

If you may show what the general reputation and character of an alleged assailant is, we think it is also competent and proper to show specific cases of assault — specific instances which have evinced the character of the party and which have come to the knowledge of the defendant; and the rule in a criminal case, should, we think, be the rule in civil eases; 'and it has'been held in a case reported in the 43d N. W. Reporter, page 368, that in a civil case testimony of this kind is competent. The case is Gully v. Welheen, decided by the Supreme Court of Michigan (80 Mich., 443). In the syllabus the court say:

“The defendant testified that he knew plaintiff to be a powerful and dangerous man, and that he was afraid of him, and that he had previously seen a fight between him and a policeman, in which the plaintiff was the aggressor. Held: That the testimony of the policeman as to what occurred on that occasion was competent.
“3. In an action for assault 'and battery, evidence as to the quarrelsome character of the plaintiff is inadmissible unless such fact was known to the defendant before the assault.”

And in the opinion, the court say:

“The defendant gave testimony in his own behalf, and testified that he knew the plaintiff; that he was a powerful man and quarrelsome; that he had seen a fight between plaintiff and a policeman on another occasion ‘and he detailed- what he saw when the policeman tried to arrest him, and that he stood in fear of him; that plaintiff was the aggressor, and what he did was simply in self-defense.”

This was ruled out by the trial court and1 this the Supreme Court of Michigan held to be error. They say on page 369:

“The court excluded the testimony. It' should, have been admitted for the purpose of showing to the jury the disposition and strength of the man. It would have some tendency to show whether his conduct on that occasion was calculated to inspire terror in the mind of the defendant, amid to stand in fear of him as a dangerous main-.”

In the 5th C. C. Repts., at page 538, is a case that bears somewhat on this subject—Turner v. The State of Ohio—where the Circuit Court of Hamilton County held that evidence of a former assault that came to the knowledge of the defendant' in a criminal case, was competent. They say in the syllabus:

“The evidence was competent and should have been received. If mo.t strictly a part of the res gestae (which it' probably was), it was admissible to show that the deceased bad a knife shortly before his death, and also as tending to show the character of the deceased as a vicious and dangerous man, and that the defendant knew this.” •’

It seems to be clear from the authorities that testimony of this kind tending to show the character of the plaintiff in such a case, if if came to1 the knowledge of the defendant, is competent; and it must be competent, for it will appear upon a moment’s consideration that if this man was assaulted as he claims he was, he would take into consideration the character of the man who assaulted1 him in considering whether he was in danger or not, and the amount and force he shouldruse in defending himself; and there is evidence in this record tending to show that Bartz had knowledge of the character that he claimed the plaintiff had. He testified that he was afraid of him because he had whipped so many men, and he had heard of it, and other testimony tended to show that he had heard of this assault upon Slaughterbaek.

We are not entirely clear that testimony as to the character of the party in a civil action for assault where it had not come to the knowledge of the defendant is competent, but it is not necessary to decide that in this case. The Supreme Court of the United States, however, and this court in following that court and others, have held that in a murder ease, where threats of violence were made against the defendant by the deceased and where the defense was self-defense, that testimony 'as to such threats 'was competent although the threats had not been communicated to the defendant, upon the ground, as put ’by the Supreme Court’ of the United States, that the defendant had a right to "have the jury know the feeling which the deceased had towards him as bearing upon the question whether or not the deceased made the attack upon the defendant in the manner he claimed he did. This kind of testimony the Supreme Court of the United States say is admissible in a homicide case where the defense is self-defense.

We therefore 'hold, both upon principle and upon authority, that' this testimony of the general reputation, and -character of the plaintiff as a fighting and quarrelsome maat, as admitted on the trial of this case, was competent. The evidence as to whether Bartz knew of these particular former assaults is not as clear as it might be, and yet there is testimony which tends to. show that he had heard of this assault -upon- Sluughterback. find .had. heard of various assaults.

Objection is made -to the charge of the court, or to the refusal to give certain charges requested. They were not asked to be given before argument, and we think the court covered the requests substantially in its charge. The court charged upon the effect of _the testimony just referred to, and we think there was no error in what the court said upon that subject. The court limited the effect of that testimony very carefully, and we think strictly within -the law; at least the plaintiff in error can not complain.

One other question was objected to. The defendant was asked if he was afraid of plaintiff and he said he was, and he was asked why, and that was objected to, and he said that he had heard of his “licking so many men.” That testimony is ini line with the testimony already discussed, and we think it was admissible.

It is claimed by the defendant in error that the fact that the verdict was so small can not be a ground of error. We think it. can be, although that is not one of the grounds mentioned in the new trial statute; but if the verdict is so small as to be clearly contrary to the weight of the evidence eonsidtering the injury sustained, we think that -a judgment might be reversed on that, ground. If a man had lost an -arm or a leg or suffered some great-injury by a malicious attack, -amid a jury should return a verdict for a half a dollar or a .dollar, we think such a verdict would be against the weight of the evidence and contrary to law and it should be set aside; and it is claimed that this verdict is against the weight of the evidence. It is not necessary to discuss the evidence any further; as to who began the assault, the evidence is conflicting, and the question was properly submitted to the jury, and if, as the defendant claims the plaintiff began the assault, then the plaintiff can not complain if he received punishment by way of defense, and the law will not' measure very nicely the defense a man makes against one who assaults him. In the struggle it seems that they fell, and according to the testimony of the plaintiff, Bartz struck Henning after he was down; struck him once at least after hostilities had ceased, and when apparently there was no reason for striking him, but it does not appear that any serious injury was received on account of that blow, and the jury returned a nominal sum for damages, as they had a right to do.

There are some things in the testimony of the plaintiff that indicate that this was a fight rather than an assault. The plaintiff testifies that after the trouble had proceeded a while, he said to Bartz, “I have enough, and I want you to get off,” and he said Bartz stopped when he said that. Such an expression as that would tend to indicate that Henning did at the time regard it as a fight rather than anything else; that he was in a fight rather than being assaulted maliciously. He said he had enough and asked Bartz to get off, and the testimony shows that immediately after that the battle ended.

We do not feel that we would be justified in reversing this judgment on the ground that the verdict was against the weight of the evidence. After the fight, or the trouble was over, the plaintiff met a witness who testified that he said to him, “I would have whipped him if he -had not fouled me,” which, if true, has a very strong tendency to show the view that Henning took of the affair at the time. It does not appear that he received any very serious injury; he was bruised amid cut some possibly, but was about town as usual, soon after. We have been shown a photograph, which is attached t'o the bill of exceptions, which shows plaintiff to be a strong, heavy man, with a facial expression -which would indicate that if he was in a fight, he would in all probability try to make his antagonist remember it and endeavor to avoid trouble with him in the future. The evidence tends to show that the plaintiff was a larger man than Bart'z and considerably taller, and that was a thing that Bartz had a right to take into consideration. This is one of those cases peculiarly for a jury, and we find no error in the case prejudicial to the plaintiff. The judgment of the court of common pleas will therefore be affirmed.

N. R. Harrington, W. H. McMillan and 8. P. Harrison, for plaintiff.

James O. Troup and Allen J. Seney, for defendant.


text:
    MORTGAGE COVERING HUSBAND’S PROPERTY AND WIFE’S SEPARATE PROPERTY.
    [Circuit Court of Hamilton County.]
    Insurance Company of North America v. I. J. Miller et al.
    Decided, February 14, 1903.

      Husband and Wife — Separate Property of Wife — Included in Mortgage Securing Husband’s Debt — Relation of Surety to Said Debt — Mortgage also Covered Husband’s Property — Purchaser at Foreclosure Put on Inquiry — Dower—Subrogation—Estoppel—Burden of Proof —Bad Faith.

    1. Where it appears from the record that the wife’s separate property has been mortgaged to secure the husband’s note, it is evidence tending to show that her property sustains the relation of surety to his debt.
    2. Where the mortgage covers both the wife’s separate property and property of the husband, the fact that the mortgage secures the husband’s note is sufficient to put any one dealing with husband’s property covered by said mortgage on inquiry as to the true relation sustained by the wife’s property, and to put the burden of proof on the one dealing with such property of the husband to show that the true relation of the wife’s property is different from that indicated by the record.
    3. The foregoing is especially true as to one who purchases such property of the husband, where the only consideration is the husband’s past due indebtedness.
    4. While fraud or bad faith is not essential to estoppel, it is a necessary ingredient in misrepresentation by passivity.
    5. Innocent silence does not estop.
    Jelke, J.; Swing, J., and G-ieeen, J., concur.
   Wc found before (Court Index, June 19, 1902), that the relation which Mrs. Miller’s property bore to Mr. Miller’s debt was that of suretyship, and that the insurance company was both constructively put on inquiry by the face of the record, and had actual knowledge from the passage of the checks and the things which were done at the time the loan from the insurance company was substituted for that from the' savings society.

Mrs. Caldwell in 1896, was chargeable with what the record disclosed, but had no othei knowledge of the facts. Mrs. Miller in 1896, probably did not know the légal'efliect of what' had been done or the true legal status of her property toward Mr. Miller’s debt and his creditor, the insurance company.

It is claimed on behalf of Mrs. Caldwell that, at the time the bargain was made between Mr. Miller and Mr. Caldwell, which resulted in the deed to Mrs. Caldwell in which Mrs. Miller joined as grantor, Mrs. Miller by her conduct' estopped herself from setting up her relation of suretyship as 'against Mrs. Caldwell.

We disregard the question of release as against the insurance company, because if Mrs. Caldwell’s claim is good it would be good whether or not there was 'a release by the insurance company. The evidence relied on to establish this estoppel is as follows:

“Q. What time <did she buy it ?
“A. On the 23d day of June, 1896.
“Q. The transaction was through you?
“A. Yes, sir; it was through me.
“Q. Have you the deed ?
‘‘A. I have.
"Q. Refer to that deed and fix the time as ne'ar as you can?
“A. It was after the 23d of June, 1896. Some time after that in the same year.
“Q. Now state what Mrs. Miller said?
“A. I made the remark that I think if I get out of the work house, that I could build on that lot; that it would be a nice place to live, but I could not build as long as there was a mortgage on it. The statement of Mrs. Miller was, that they had got the street railroad there then, and she thought it would not be long until they could sell property enough to pay the mortgage off.
“Q. Was the question discussed as to any loss you might suffer by reason of the mortgage?
“A. No, I think it was only discussed that the mortgage was only ten thousand dollars, wh'ile the property was a great deal more valuable.
“By The Court—
“Q. Who 'discussed that?
“A. If I recollect Mrs. Miller made the statement; of course the property was worth a great deal more than the amount of the mortgage.
“Mr. Kaufman—
“Q. Did she speak of the property specifically; did she say what property she referred to ?
“A. She spoke of it as our property.
“Q. This property owned by Mr. Miller and Mrs. Miller is one continuous piece ?
"A. Yes, six.
“Q. There is no fence between?
“A. No.
“Q. Mr. Miller’s property adjoins Mrs. Miller’s property?
“A. I think it runs right nearly to the house.
"Q. And it is used as one piece; there is a grass plot over the two pieces ?
. “A. Yes, sir.” (Record, pp. 24 and 25.)

Counsel for Mts. Caldwell invoke the benefit of the law as stated in Smiley v. Wright, 2 Ohio, 506:

“Widow entitled to dower, present at the sale under order of court, and asserts that the sale may be made free from dower, in consequence of which the price is increased, is thereby barred of dower, although the purchaser was not ignorant of her title.”

This is a clear case of estoppel by misleading conduct as to the material fact:

“Mrs. Smiley was standing at the door, the auctioneer being on the -step, when it was struck off. That he heard the auctioneer frequently state that the sale was free of dower, while she was in a situation she must have heard him; and on one occasion replied to him she had no claim to dower.”

It was said in Rosenthal v. Mayhugh, 33 O. S., 155:

“It is not necessary to constitute such equitable estoppel that a party should design to mislead; it is enough if the act or declaration was calculated to and did in fact mislead another, who acted in good faith and with reasonable diligence.”

Counsel for both sides of this issue cite the case of Neimcwicz v. Gahn, 3 Paige, 613, affirmed in the Court of Errors, 11 Wendell, 312. As between the wife whose separate property was pledged as surety for her husband’s debt and his general creditors, Cowen V. C., below, said, on page 621:

“Since the execution of the mortgage several judgments have been obtained against Gahn, which operate to encumber his interest jure uxoris. The judgment creditors are made parties, and one of the defendant’s points is that, in respect' to the charge upon her land as surety, she shall be preferred to the judgment creditors; in other words, that she may fake the place of the complainant, and have the husband’s interest jure uxoris applied to satisfy her as surety in the mortgage. This is right, provided it be attainable in this suit. She is entitled to what is called subrogation; i. e., to come round and be herself the mortgagee in place of the complainant. And holding that place, she of course takes preference to the subsequent encumbrancers. This is a familiar and perfectly well settled chancery rule; and Aguilar v. Aguilar (5 Mad. Rep., 414) is this case precisely, only substituting judgment creditor for annuitant.”

And on this point the court above, per Mr. Justice Nelson, said on page 318:

“Generally so far as the interest of the mortgagee is concerned in these cases, he knows that the debt was the husband’s and that the separate interest of the wife would be in no way responsible for it, until she pledged it as- security; 'at all events, without such knowledge he would not be affected by her character as surety, and •with it I see no objection to the operation of the principles applicable to it; and if she is obliged to pay the debt, why should she be postponed to 'all other creditors? Their debts were not contracted upon the faith of her property, and the law has already vested in the husband a portion of it which it must have deemed a fair equivalent for his obligation to support amid maintain her.”

Counsel for Mrs. Caldwell cites this same case on the proposition that—

“It is not enough that it be known to him that the property mortgaged is the inheritance of the wife, and that the security was given for money loaned to the husband; for, as the money may have been obtained for the benefit of the wife’s estate, or with a view of a gift to the husband, the fact of suretyship should be affirmatively established.”

And claims that the record is not enough to charge Mrs. Caldwell with knowledge of the suretyship. But what was there said was said as between the wife ‘and the mortgagee, and we have heretofore found that the insurance company knew the relation.

“To make the mortgagee chargeable with the equitable rights of the wife, as surety for her husband, it must appear that he had notice of this relation. Such notice can not be inferred merely from the fact that the money was paid to the husband, because he may have acted as his wife’s agent in the transaction. But if the mortgage be made to secure a pre-existing debt of the husband’s, the creditor is affected with notice of the wife’s equity as surety, and in his dealings with the husband is bound by this knowledge.”
“A husband and wife joined in executing two mortgages, accompanying his two bonds; all being given for the same debt. This was in part a pre-existing debt of the husband’s, and in part money advanced to him at the time. One mortgage was on his own lands, the other was on the wife’s inheritance. Held: 1. That' the husband’s lands were the primary fund for the payment of the mortgages, 'and the wife’s became the secondary or auxiliary fund for that purpose. She became the surety for her husband in respect of the latter. 2. That the suretyship is made out in such a case, by showing that it' was the husband’s debt, or that he received the money advanced. If the money were used for the benefit of the wife or her property or any circumstance exist which will defeat her claim to be regarded ‘as a surety, it must be proved by the party alleging such fact.” (Loomer v. Wheelwright, 3 Sandford Ch., 135.)

An examination of the records by Mrs. Caldwell would have disclosed that the mortgage given to the insurance company was to secure a pre-existing debt of Mr. Miller, i. e., to the savings society, but only a debt -of the same character. The record, discloses that the five thousand dollars, the consideration named in the deed, consisted of -old debts of Mr. Miller to Mr. and Mrs. Caldwell, with accrued interest. The Caldwells gave up ehoses in action for the property; they surrendered no security. The change in Mr. Miller’s responsibility is an incident to a lapse of time which was in no way contracted for.

In the case of Lewis v. Anderson, 20 O. S., at page 286, the court quotes the following:

“ ‘As a general rule,’ says the Chancellor in Padgett v. Lawrence (10 Paige, 180), ‘a purchaser of the legal title who receives a conveyance merely in consideration of a prior indebtedness, is not entitled to protection, because he has lost nothing by the purchase. But the relinquishment of a valid security, which he before held for the debt, and which can not be revived so as to place him in the same situation substantially as to security as he was in prior to the purchase, may of itself be sufficient to entitle him to protection as a bona fide purchaser.’ Willard’s Eq., 256.”

We see no reason why Mrs. Caldwell should stand in any better relation toward Mrs. Miller’s property than either Mr. Miller or the insurance company, unless Mrs. Miller has made it so either by deed or estoppel in pais.

Mrs. Miller joined the granting clause and released dower in the testatum clause of the deed to Mts. Caldwell of this piece of Mr. Miller’s property. Now it is claimed that Mrs. Miller not only conveyed her dower, but whatever interests she may have had in this piece of property because her own property was surety for her husband’s debt. It is difficult to see how Mrs. Caldwell can say this when she especially claims that as against her Mrs. Miller’s property was not surety for Mr. Miller’s debt.

Either Mrs. Miller’s property was surety or it was not. If it were not', then this particular interest did not exist and could not have been conveyed. If it were, then the interest growing out of this relation Mrs. Miller had in Mr. Miller’s property vanished long prior to the deed in 1896, when the release was worked in 1893, and this was so whether Mrs. Miller and Mrs. Caldwell or either- of them knew it or not.

Further, whatever interest Mrs. Miller might at any time have had in Mr. Miller’s land, growing out of this transaction, in addition to her dower, would have its origin in principles-of subrogation, and it is extremely doubtful whether it' is such 'a real interest in land as would pass by deed.

And again, there is no equity in Mts. Caldwell complaining because she did not get what under the evidence she could not have expected to get.

We conclude that Mrs. Caldwell took no superior rights on this issue by her deed.

We find 'as a matter of fact that in the conversation detailed by Mr. Caldwell in the testimony above set out, nobody present had this matter of suretyship in -mind. That legal concept had its origin -only after Mrs. Miller had consulted counsel. It was nevertheless imbedded in the facts and the law. That whole talk was J)ut the expression of sanguine hope borne to all present by the accomplishment of things long planned and struggled for. Nobody then supposed that recourse would be necessary even to Mrs. Miller’s property. To say that the idea of suretyship was present would be fatal to Mrs. Caldwell’s case. On this subject Mrs. Miller’s conduct is to be eharaeerized as “innocent silence.”

Herein is the -difference between the ease at bar and the case of Rosenthal v. Mayhugh, 33 O. S., 155. On this point the discussion of “Misrepresentation by Passive Assistance” by John S. Ewart in his work on Estoppel, is so able and apt that we would spoil it to talk about it', and as it is too long to copy into this opinion' we adopt it by reference, beginning on page 88, to the bottom of page 92. Likewise his discussion of the case of Pickard v. Sears, 6 Adolphus & Ellis, 469, cited and relied on by Mrs. Caldwell’s counsel, on pages 92 and 93 of the same work, showing how the principle of that case is not exactly -applicable to cases like the one at bar.

We, therefore, see no reason why we should vary as to Mrs. Caldwell’s property the conclusion we'came to as against the insurance company.

Hiram D. Peck, for Mrs. Caldwell.

Charles B. ~Wilby, for Mrs. Miller.

Henry P. Kaufman, for the Insurance Company of North America.

Decree accordingly.


text:
    CLAIMS BY GRANT AND BY PRESCRIPTION TO GROUND FOR. AN ALLEYWAY.
    [Circuit Court of Cuyahoga County].
    Adam Schaeffer v. Joseph Clauda and Lena Clauda.
    Decided, May 26, 1903.

      Reservation of Alleyway in Deeds — Claim of Right to Use by Grant — Claim by Prescription.

    1. A bar arises against the claim by grant to the right to use a certain strip of ground as an alleyway where the one making the claim has built upon that part of the strip extending through his own ground.
    2. A claim by prescription of a right of way is not defeated by the fact that the plaintiff’s use of the strip was not daily, but only occasional it sufficiently appearing that such use was continuous.
    Winch, J.; Hale, J., and Marvin, J., concur.
    Appeal by plaintiff.
   Plaintiff is the owner of the northerly half of sub-lot number 16, in Robertson’s subdivision of part of original lots numbers 329 and 332 in the city of Cleveland, Cuyahoga county, Ohio, and defendants own the southerly half of said .lot.

Said lot number 16 is on the northwesterly corner of Pier and Beaver streets, and. is about 165 feet deep, so that the defendants own the corner lot and plaintiff has the inside lot. He claims a right of way over the rear 12 feet of defendant’s premises to the rear portion of his lot, with the right at all times to pass and re-pass through 'and over the same on foot and with teams.

Plaintiff bases his claims upon two grounds: first, by grant, and second, by prescription.

As tending to prove his claim by grant plaintiff traced the title to both parts of the lot from a common owner and showed that on the 10th day of June, 1872, one Sanford L. Kennedy was the owner of the whole lot and on said day contracted in writing to sell it to Adam Burghardt and Adam Schaeffer, it being stipulated in the contract that “the said Kennedy is to make deeds to said parties of the second part, when the conditions of this contract have been complied with as follows, to-wit: Adam Burghardt is to have the south one-half of said lot No. 16 and Adam Schaeffer the north one-half of said lot, and the parties of the second part hereby agree to open an alley twelve feet wide in the rear of said lot.”

The parties went into possession under this contract and on January 20, 1873, deed was made to plaintiff of his half of the ot, containing the clause: “The grantee hereby agrees to open an Bley twelve feet wide in the rear of said lot.” .

A deed to the corner lot containing the same agreement coneemmg an alley was made to Adam Burghardt, and he built a house upon his lot in 1873 and a coal-shed and out-buildings upon the .'.rear part of his lot, leaving thirteen feet in the fear thereof; that is, he built nothing upon the twelve feet which he had agreed to bpen as an alley.

On Beaver street he built a fence’back to his coal-shed and in ‘the rear of his coal-shed he placed a gate, closing the twelve-foot istrip which was to be opened as an alley.

Plaintiff built a house the following year (1874), so constructing it as to leave no driveway from Pier street on either side of bis lot. He built a coal-shed upon the extreme rear of his lot Opening to the alley-way or twelve-foot strip in the rear of Burg/hardt’s lot. The gateway on Beaver street and the coal-shed on the plaintiff’s lot have continued down to the present day, so that it is apparent that no “alley twelve feet wide,” has ever been opened.

May 4, 1874,-Burghardt sold the comer lot to-Neal, inserting in the deed the same clause about opening an alley; and on March 7, 1883, Neal sold to defendants, but the last deed contained no clause about the alley.

The agreement to open a twelve-foot alley contained in the several. deeds referred to must' mean a public alley, yet from the beginning the owners of both.lots have uniformly denied the public any rights in said twelve-foot strip of land.

Jones on the Law of Real Property in Conveyancing, Sec. 530, says:

“A reservation expressed to be in favor of the public confers no rights in- favor .-of any one except the grantor, though there are intimations in some eases that such a reservation is valid in favor of the public. The reservation in such case may operate as an exception from the grant, and as notice to the grantee of adverse claims or rights as to the thing reserved.”

The plaintiff has not sued as one of the public for the opening of this alley. By his own -acts -in building upon that part of th alley which he agreed to open upon his own lot he has barred himself from claiming the twelve feet to be a public alley, and applying the rule laid down by Jones, ahove referred to, the condition, reservation or exception contained in the deeds to the comer lot confer no rights in favor of t'he plaintiff. It thus appears that so far as he rests his claim upon a grant, the plaintiff must fail.

To establish his rights by prescription, plaintiff must prove that the use and enjoyment of what is claimed as an easement was “adverse, under a claim of right, exclusive, continuous and uninterrupted, besides being within the knowledge and with the acquiescence of the owner of the estate over which the easement is claimed.”

Cleveland, etc., Ry. Co. v. Huddleston, 21 Ind. App., 621; Paine v. Skinner, 6 Ohio, 159; McNeely v. Langan, 22 O. S., 32-37; Pavey v. Vance, 56 O. S., 162.

The testimony is uncontradieted that plaintiff from the time he built his coal-shed in 1874, down until t'he defendants purchased in 1883, claimed the right to and did use the alley-wav in order to put in his coal; his milkman and others delivering goods to him used it. Both he and his wife testify that they had a key to the gate on Beaver street, which was the only key to it, although defendants say the gate was never locked after they purchased the comer lot until 1899. This use was not only adverse, hut was acquiesced in by Burghardt, who first owned the comer lot, as shown by the manner in which he located his coal-shed and' out'-buildings, leaving thirteen feet in the rear of them leading to plaintiff’s coal-shed.

Plaintiff’s use of the alley-way can not be referred to a claim ■on his part that the premises in dispute was a public alley. Such inference is rebutted by the maintenance of the gate and location •of plaintiff’s coal-shed.

The defendants testify that a day or two after they moved onto -the comer lot in 1883 they observed the plaintiff using the alley for access to his coal-shed. They say that they asked him why he was doing it and he replied that he had a right to — that it was in his deed. They replied that' it was not in their deed, but so long as the plaintiff was neighborly he might use the alley. All this conversation was denied by plaintiff and his wife; but assuming that it took place, it shows that plaintiff then claimed the right t'o use the alley and defendants acquiesced in it. It does not show that plaintiff for one moment admitted that he had no right to use the alley, or sought, desired or accepted the permission ■of defendants to use it. He so stood upon his rights that, defendants say, they consulted their lawyer, who looked up former •deeds in their chain of title and gave them actual knowledge of the agreement for an 'alley contained in the deed to Burghardt .and others, of which the law held them 'to have constructive notice. They had notice of plaintiff’s claim before they purchased, for 'they must have observed the location of his house and coal-shed, with no access to the latter from Pier street; the location of the ■coal-shed and other buildings on their own tot, leaving an alleyway leading directly to plaintiff’s coal-shed and necessarily showing signs of travel to it from Beaver street. They do not state that plaintiff made any reply to them when they told him he might use the alley so long as he was neighborly.

J. H. Hardy, W. T. Clark, for plaintiff.

T. H. Johnson, for defendants.

Plaintiff continued to use the alley without objection from the defendants until November 7, 1899, and we find from the evidence that plaintiff’s use of the alley for the purpose of putting coal into his coal-shed for a period of twenty-five years was “adverse, under a chain of right, exclusive, continuous and uninterrupted, besides being within the knowledge and with the acquiclaimed,” within the rules laid down in the authorities above referred to, and that his prescriptive right to such use is established.

It can not be claimed that because t'he use of the alley was not d'aily, but only occasional, it was not continuous.

“If the claimant of an easement in real property needs its use from time to time, and so uses it, there is a sufficiently continuous use t'o be adverse, although it is not constant.”

Swan v. Munich, 65 Minn., 500.

Hesperian L. & W. Co. v. Royers, 83 Cal., 10.

It appears that on November 7, 1899, defendants completely obstructed said way by moving a barn thereon, which prevents plaintiff from using said way for access to his coal-shed. It is the order of the court that said barn be so moved as to restore to plaintiff reasonable access to his coal-shed, and defendants are enjoined from interfering with plaintiff’s use of said twelve-foot strip of land in the rear of their lot for access to his said coal-shed.


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    INJURIES TO PUBLIC HIGHWAYS.
    [Circuit Court of Trumbull County.]
    Board of County Commissioners of Trumbull County v. Pennsylvania Company.
    Decided, February Term, 1903.

      Highways — Obstructions in and Injuries to — County Commissioners Can Hot Unjoin — The Remedy — Section 863 — Damages—Injunction.
    County commissioners have only such jurisdiction over public highways as is provided by statute, and are without power to maintain a suit to-enjoin injury to a county road; their remedy is in an action for damages, under the provisions of Section 863.
    Cook, J.; Laubie, J., and Burrows, J., concur.
    Heard on appeal.
   The action of plaintiff is to obtain an injunction against defendant to restrain it from wrongfully causing water to flow from its right of way upon the county road. There is no doubt from the testimony but that the defendant by recently making a deep cut' upon its right of way is draining a much larger amount of land than previously and that the accumulated water, large in quantity, is permitted to run upon the public highway with great force, causing deep cuts and holes in the road and at times overflowing it and making it impassable. It further appears by the evidence that the defendant has a practicable and indeed convenient manner, with little expense, of running this accumulated water along its own right of way a short distance to a natural water course, and by so doing avoid all injury to the road.

Under these circumstances has the plaintiff the right to maintain its action for an injunction? We think not.

Public highways belong to the state and are under its control and boards of county commissioners have only such jurisdiction over them as is provided by statute (Commissioners of Gallia County v. Holcomb, 7 Ohio [pt. 1], 232; Raynolds v. Cleveland, 24 O. C. C., 215). In the former case it was held:

“The commissioners -of the county can not maintain an action in their capacity as commissioners against individuals who may carelessly or willfully destroy roads or bridges.”

And in the latter case it is held:

“Municipal corporations have no inherent power to regulate and control streets therein, for streets and highways belonging to the state are under its control.”

Obstructions in public highways and injuries to the same constitute a nuisance, and full power is conferred upon the state by its attorney-general on his own behalf, or upon the relation of a ' party in interest, to invoke the equity powers of the court to have such obstructions removed or the injuries repaired and the highway restored to its former condition of usefulness (Little Miami Ry. Co. v. Greene Co. [Comrs.], 31 Ohio St., 338; State v. Railway Co., 36 Ohio St., 434). In the latter ease, White, J., in delivering the opinion, says:

“That courts of equity exercise jurisdiction in cases of purpresture and ¡nuisance, of encroachments upon the public right's, as upon highways, rivers, and streets of towns, is well settled. The jurisdiction is predicated upon the broad ground of preventing irreparable injury, interminable litigation, a multiplicity of suits, and. the protection of rights (Putnam v. Valentine, 5 Ohio, 187; Law of Nuisance, by Wood, Section 769, and notes). Under the system of equity pleading prior to the adoption of the code, the proper remedy in cases of nuisances purely public was by information or bill in the name of the attorney-general, or of the government, instituted by him (Law of Nuisance, supra, Section 811; Story Eq. Jur., Section 923; Story Eq. Pl., Section 8). That the attorney-general was authorized to institute such suits in behalf of the public is abundantly shown by the authorities (Attorney-General v. Johnson, Mayor, Commonalty and Citizens of London, Wilson Ch. Reports, Vol. 2, pt. 1, p. 87; People v. Vanderbilt, 26 N. Y., 287; People v. Davidson, 30 Cal., 379; Attorney-General v. Stewart, 21 N. J. Eq., 340; Attorney-General v. Forbes, 2 Mylne & C., 123). When the suit did not immediately concern the rights of the crown or government, its officers depended on the relation of some person whose name was inserted in the information as the relator. A relator, however, in such cases was by no means indispensable.”

It is claimed however that the act of March 7, 1873 (Section 863, Rev. Stat.), affords such right of action for an injunction. The purpose of this act was to furnish an additional remedy to . that possessed by the state in cases of injuries to public highways, and, being such additional remedy, it must appear from the wording of the act, or at least by a fair intendment, that the remedy by injunction already possessed by the state is given to the board of county commissioners.

The act provides when any injury is done to a county road, “rendering the same less convenient or useful than it had been previously, by any person or corporation, such person or corporation shall be subject to an action for damages, and the board of commissioners of the proper county is authorized to sue for and recover of such person or corporation so causing or having caused such injury or impairment such damages as have occurred by reason thereof, or such as are necessary to remove the obstruction or repair the injury.”

It will be observed that by the express provision of the act the remedy furnished the commissioners is an “action for damages,” for a money judgment, and the parties no doubt would be entitled to a trial -by jury. Furthermore t'he act furnishes an adequate and complete remedy by such action at law. Not only does it provide for the removal of the obstruction and repairment of the injury, but further injuries may be provided against by such order as the court may make. It therefore furnishes a final remedy and prevente multiplicity of suits as effectually as a court of equity could do by injunction. The act sets forth:

“The money so recovered shall, when so collected by the proper officer, be paid into the treasury of the proper county 'and shall be appropriated by the commissioners thereof in repairing such bridge, building or road or removing such -obstruction as the case may be, or to reimburse the county for expenditures in that behalf; and the court may in case of recovery make such order as is deemed necessary to repair the injury or remove the obstruction complained of.”

In this case there can be no doubt but that upon a recovery of a money judgment the commissioners would not only have the right to repair the road out of the money recovered, but that the court would have the power to require the defendant company, by proper order, not to wrongfully permit the water to flow from its right of way upon the road in such manner as to injure it and impair its usefulness. In State v. Railway Company, supra, in the opinion on page 442, it is said:

E. E. Roberts, for plaintiff.

E. E. Stewart and J. R. Carey, for defendant.

“Counsel for defendant relies on the act of March 7, 1873 (70 O. L., 53), amending the act establishing boards of county commissioners, as furnishing the only remedy in cases of the obstruction of a state or county road. That' act authorizes an action to be' brought to recover damages by the county commissioners. We regard the act as merely cumulative and not in any way affecting the right of the state to maintain the present action (Darling v. Peck, 15 Ohio, 71; People v. Vanderbilt, 26 N. Y., 294, 295).”

State v. Railway Co. supra, as we have seen, was a suit on behalf of the state for an injunction to restrain the railroad company from injuring a public highway.

Petition of plaintiff is dismissed at its cost.


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    EXEMPTIONS IN FIRE RISKS OF LOSS FROM RIOT.
    [Circuit Court of Summit County.]
    The Michigan Fire & Marine Insurance Company v. J. P. Whitelaw, Hanni Whitelaw and H. B. Plumer.
    Decided, October 2, 1903.

      Fire Insurance — Exemption from Loss — On Account of Riot — On Account of Fire During Riot — Building Involved Not the One Fired by the Mob — Construction of Policy.

    1. The exemption clause in a policy of fire insurance, providing absolute indemnity from loss by fire, except that the company “shall not he liable for loss caused directly or indirectly by riot,” exempts from all loss due to riot, whether from fire or otherwise.
    2. Hence the loss sustained by W. from the burning of a building in 1 the city of A. by a fire-which.hadjapreacL-from.another building set . on fire by rioters,-is-not..covered by a policy containing such an exemption clause.
    Hale, J.; Marvin, J., and Winci-i, J., concur.
    Error to the Court of -Common Pleas of Summit County.
   Plaintiff in error by its policy of insurance, dated October 10, 1899, insured defendants in error against loss or damage by fire to property specifically described in said policy to the amount of $700. The property insured was a frame building located on Main street in Akron, and the second building from the city hall or city building. On August 23, 1900, and while this policy was in force, there was a serious riot in the city of Akron. The rioters set fire to the city building, which was wholly destroyed by fire. The fire was communicated to an adjoining building (or originally commenced in the adjoining building), and thence communicated to the building of the defendant in error, which was wholly destroyed.

It is stipulated in the policy that the company “does insure the insured against all direct' loss and damage by fire, except as hereinafter provided”; and among the numerous provisions thereinafter provided is the following:

“This company shall not be liable for loss caused directly or indirectly by invasion, insurrection, riot, civil war or commotion, or military or usurped power,-,pr by order of any civil 'authority; or by theft; or by neglect.-of the insured to use all-reasonable -means to save and preserve the property at -and- after a fire or when the property is endangered by fire in neighboring premises; or (unless fire ensues, and, in that event, for the damages by fire only) by explosion of any kind, or lightning; but liability for direct damages by lightning may be assumed by specific agreement hereon.
“If a building or any part thereof fall, except as the result- of fire, all insurance by this policy on such building or its contents shall immediately cease.”

In due time and form proof of loss was made by the insured and the payment by the company refused on the ground that the loss was not within the terms of the policy, but exempted by the clause which I have read. An action was commenced by the insured against the company and issues joined; -trial had; a verdict and judgment in favor of the defendant in error.

Under the issues the defendant's in error claimed the loss was within the terms of the policy, while the plaintiff in error asserted that the loss 'fell within the exception -above quoted, and was a loss for which the company was not liable.

The trial court construed this policy in the charge to the jury, and said: ' -

“If, on the night when the property insured by this policy was destroyed by fire, three or more persons had assembled together on Main street to do an unlawful act, namely, to take the prisoner by force -and violence from the city building, and the persons so assembled there together were then and there doing an unlawful act, and that while they were so engaged in their unlawful .proceeding, a fire was communicated, by the persons so engaged, to the Columbia rink and to the city building, and that it then spread in a southerly direction, so that the flames, or sparks from flames, communicated with the building of the plaintiffs, whereby such building was wholly, destroyed by fire, such loss, under such circumstances, would not' be within the exceptions of this policy.”

The correctness of this construction is challenged. While it is true that a contract of insurance should be liberally construed in favor of the insured, it is, nevertheless, true that the contract should receive a reasonable interpretation consonant with the apparent object and plain intent of the parties. The company insured the defendant in error against all direct loss or damage by fire, except as provided in the exceptions. Leaving out all the intervening clauses except the one here invoked, it provides for an absolute indemnity against loss by fire, except for loss caused by riot, etc. The language is “shall not be liable for loss caused directly or indirectly by riot.”

In argument it was conceded that the rule applicable here is precisely the same as it would have been had the rioters set fire to the city building, and the insurance been on that building. In other words, it is not contended that this loss was not caused by riot, but the contention on the part of the insured is that this only exempted the company from loss caused by riot other than by fire; that loss by fire is not intended to be excepted, otherwise the policy would have specified that the company should not be liable for loss by. fire caused by riot. Certainly the language employed is sufficient to indicate and include all loss caused by riot. If we are to employ the ordinary rules of interpretation t'o this contract, the insertion of the words <fby fire” would be wholly superfluous. The indemnity is only against loss by fire. The two together read, “Does insure against all direct' loss or damage by fire, except loss caused directly or indirectly by riot,” etc. The exception limits the risk which was otherwise assumed — an exception from a fire loss. Insurance against loss by fire except loss caused by riot surely means but one thing, and that is that the company does not assume loss of any kind caused by riot. This is very much strengthened by the language of the latter part of the clause quoted. After the proviso ¡relating t'o invasion, riot, etc., which we have been considering, the exception is further extended as follows:

“Or (unless fire ensues, and, in that event, for the damage by fire only) by explosion of any kind, or lightning; but damage by lightning may be assumed by specific agreement hereon.”

Different kinds of losses may follow an explosion — the destruction of a building without fire, or the destruction of a building by fire, or the partial destruction of a building by explosion and a completion of the destruction by fire. In the first clause the loss and damage resulting from a cause is unlimited; they shall not be liable for loss or damage caused by riot; and in another clause limited to the destruction of this property other than by' fire. Certainly no interpretation of the contract is permissible which leads to the conclusion that there must be read into the first clause of this exception the same limitation that is expressed in the second clause. It seems clear to us that this contract will not bear the interpretation given it by the trial court. We hold that under the facts assumed in this charge there was no liability on the part of the company for the loss.

An examination of the eases cited leads to the conclusion that the liability of the insurance company in each case turned upon a proper interpretation given to the peculiar wording of the policy under consideration by the court. We find nothing in any of the cases that would require or justify a different holding from that here intimated.

In the case of The United Life, Fire and Marine Insurance Company v. Foote et al (22 O. S., 340), there was a ¡direct insurance against loss by fire to the extent of $5,000.00. Then this exception was contained in the policy:

“This company is not liable for loss or damage by lightning or tornado, unless expressly mentioned or insured against; but will be responsible for loss or damage to property consumed by fire occasioned by lightning. Nor will this company be responsible for any loss or damage to property consumed by fire happening by reason of, or occasioned by any invasion, insurrection, riot or civil eommo’Hon., or of any military or usurped power, nor where the loss is occasioned or superinduced by fraud, dishonesty or criminal conduct of the insured, nor to any loss or damage occasioned by or resulting from any explosion whatever, whether of steam, gunpowder, camphene,- coal-oil, gas, nitro-glycexine or any explosive article or substance, unless expressly insured-against, and special premium paid therefor.”

It will be noticed that in the clause relating to riot, the company will not be responsible for any loss -or damage to property consumed by fire, and then is added the clause exempting the company for loss from explosion, in which the term “by fire” is omitted; and in the argument of the case- Judge Mellvaine, in speaking for the court, quoting that clause relating to explosion, says:

“Unless there is something in the subject matter of this clause that indicates that' the words ‘by fire’ were omitted for the purpose of showing a design to- adhere to and continue t'he general risk in case an explosion should result in a fire, we think that they or their equivalent should be° supplied by implication or construction.”

This cash- is not in accord with many other cases, some of them more recent, but it was -under review shortly after the ease was reported in 23 O. S., page 85 (Boatman’s F. & M. Ins. Co. v. Parker), in which a different conclusion was reached upon a differently worded policy, but in the syllabus of the case it is said the two cases are to be distinguished.

I will not take the time to- review the many cases cited, but will refer to the case of Commercial Insurance Company v. Robinson, (64 Ill., 265), found in 16 Am., 557. That action was upon a policy insuring against loss by fire, which provided that t'he company should not be liable for any loss or damage by fire caused by means of an invasion, insurrection, riot, civil commotion, military or usurped- power, nor for any loss caused by the explosion of gunpowder, camphene, or any explosive substance, or explosion of any kind. It will be-noticed then in the first clause of this exception relating t;o riot, the company shall not be liable for loss by fire, and in the last clause relating to explosion the .words “by fire” are omitted. It is very similar to the clause to which I have referred in the 22 O. S. The court, in disposing of this case, in the -argument, say:

“It will be observed that, in a clause of the policy preceding the one under consideration, the company stipulated that it should not be ‘liable’ for any loss or damage by fire caused by means of an ‘invasion, insurrection,’ etc. Here exemption is specially secured •against liability for losses by fire caused in a certain manner, but the clause under consideration leaves’ out the words d>y fire.’ It •secures the exemption from liability for losses caused by explosion, but not from liability for losses by fire caused by explosion. The difference in the phraseology between the two clauses is so marked, that, when we consider their connection with each other, we can not resist the conclusion that the difference was intended.’'

So that because the first clause specifically exempted the company from losses by fire, followed by a clause exempting the company from losses by explosion, omitting the words “by fire,” that court held that under the latter clause losses by fire were not included.

It will be noticed that the policy that we have is differently worded from that considered in either of these cases. Here the ■contract of indemnity is against all loss by fire, except for loss •caused directly or indirectly by invasion, riot, etc., omitting the words ifby fire,” followed by the clause relating to explosion, which reads, “unless fire ensued, and, in that' event, for damages by fire •only,” continuing the liability of the company under the policy for losses by fire in case of explosion, and limiting the exception to loss or damage by explosion other than by fire. So that in the Illinois case there were brought together in the exception two clauses, one relating to loss or damage by riot, etc., and the other relating to •an explosion. The first clause in the exception used the term, “by fire,” the second did not, and the court said, because of the different wording of these two clauses, a different construction should be given.

The two clauses in the exception in the policy that we have before us are differently worded, that relating to loss or damage by riot, etc., and the other to losses by an explosion — that relating to ami explosion follows the other; the first is general in its terms, and the second, lest it should be held to be general, provides that the company shall not be exempt for loss by fire. We are asked to give the same construction to these two clauses as supported by the Illinois case, but in the Illinois case a different construction was .given to the two clauses because they were differently worded. It •does not support the plaintiff’s claim.

We are clear that no other reasonable construction can be given to this policy than that it was the intent and agreement of t'he parties that loss caused by riot should be exempted from its operation.

Allen, Waters & Andress and B. M. Wanamalcer, for plaintiff in error.

Musser & Kohler, for defendants in error.

The judgment of the court of common pleas is reversed and the cause remanded for further proceedings.