text:
    ADVERSE POSSESSION — QUIET TITLE.
    [Licking (5th) Circuit Court,
    October Term, 1908.]
    Craine, Taggart and Donahue, JJ.

       Wilson et al. v. Wilson, Admr.
    1. Known Heirs oe Owner oe Lands Presumed to be Dead not Barred by Proceedings to Quiet Title against “Unknown Heirs.”
    A proceeding to quiet title to land against the “unknown heirs” of a former owner who is presumed from long absence to be dead and against him if living, in which service is had by publication and decree rendered quieting the title of plaintiffs against such' defendants, does not affect the title of heirs whose names and places of residence in Ohio, though known' to plaintiff, are not named as parties nor served with summons therein, and who have no actual notice thereof; hence, such known heirs are not barred thereby from asserting their interest in such land.

      2. Suit to Quiet Title against Cotenants Having no Notice of Such Adverse Claim does not Start Statute of Limitations Running.
    The statute of limitations does not run between cotenants until the performance of some overt act of unequivocal character which clearly indicates an assertion of ownership to the exclusion of the right of a cotenant. Hence, a suit to quiet title against infant cotenants of which they had no actual notice does not charge them with any such adverse claim as will start the statute running against their interests in the land.
    [Syllabus approved by the court.]
    Error to Licking common pleas court.
    Flory & Flory and R. M. Ochiltree, for plaintiffs in error:
    Action to quiet title against “unknown heirs” does not affect the title of known heirs. Archer v. Brockschmidt, 5 Dee. 348 (5 N. P. 349) ; TJihlein v. Gladieux, 74 Ohio St. 232 [78 N. E. Rep. 363]; Lamb v. Boyd, 2 Circ. Dec. 672 (4 R. 499); 24 Am. & Eng. Ene. Law 718, 719, 724, 734, 736, 737; Youngs v. Heffner, 36 Ohio St. 232; Kings-borough v. Tousley, 56 Ohio St. 450 [47 N. E. Rep. 541]; Greene v. Railway, 62 Ohio' St. 67 [56 N. E. Rep. 642]; Spoors v. Coen, 44 Ohio St. 497 [9 N. E. Rep. 132] ; Webster v. Reid, 52 U. S. (11 How.) 437 [13 L. Ed. 761],
    Statutes of limitation do not run between cotenants. Gill v. Fletcher, 74 Ohio St. 295 [78 N. E. Rep. 433; 113-Am. St. Rep. 962]; Farmer’s & Merck. Nat. Bank v. Wallace, 45 Ohio St. 165 [12 N. E. Rep. 439] ; Youngs v. Heffner, 36 Ohio St. 232; Hogg v. Beerman, 41 Ohio St. 81 [52 Am. Rep. 71]; Freeman, Co-tenancy Sec. 230; Wood, Limitations, 568, 571, 574, 576, 620; Culver v. Rhodes, 87 N. Y. 348; Chambers v. Wilcox, 15 Dec. 629 (3 N. S. 269).
    Proceedings to quiet title did not charge cotenants with any adverse claim of cotenants. Irvin v. Smith, 17 Ohio 226, 239; Gill v. Fletcher, 74 Ohio St. 295 [78 N. E. Rep. 433; 113 Am. St. Rep. 962]; Benton v. Shaffer, 47 Ohio St. 117 [24 N. E. Rep. 197; 7 L. R. A. 812] ; Gibler v. Trimble, 14 Ohio 323; Holliger v. Bates,. 43 Ohio St. 437 [2 N. E. Rep. 841],
    Notice of adverse claim did not occur until disability of infancy ceased. Thompson v. Green, 4 Ohio St. 218; Westlake v. Youngstown, 62 Ohio St. 249 [56 N. E. Rep. 873],
    Kibler & Montgomery, for defendants in error:
    The statute of limitations runs against one cotenant, where the possession of the one cotenant is hostile to that of the other. Barr v. ' Chapman, 11 Dee. Re. 862 (30 Bull. 264) ; Schulte v. Beineke, 6 Dec. 529 (4 N. P. 207); Veazie v. McCugin, 40 Ohio St. 365.

      A judgment in an action to quiet title is final and conclusive. Wabash By. v. Elevator Go. 1 Dec. 415 (7 N. P. 198) ; Desnoyers v. Dennison, 10 Circ. Dec. 430 (19 R.' 320); Swensen v. Cresop, 28 Ohio St. 668; Balt. & O. By. v. Smith, 54 Ohio St. 562 [44 N. E. Rep. 240]; Covington & Cin. Bridge Co. v. Sargent, 27 Ohio St. 233; Gill v. Fletcher, 74 Ohio St. 295 [78 N. E. Rep. 433; 113 Am. St. Rep. 962]; Youngs v. Heffner, 36 Ohio St. 232.
    The judgment of 1884 cannot be collaterally attacked. Bank of Wooster v. Stevens, 1 Ohio St. 233 [59 Am. Dec. 619]; Boswell v. Sharp, 15 Ohio 447; Irvin v. Smith, 17 Ohio 226; Newnam v. Cincinnati, 18 Ohio 323; Morgan v. Burnet, 18 Ohio 546; Fowler v. White-man, 2 Ohio St. 270; Kingsborough v. Tousley, 56 Ohio St. 450 [47 N. E. Rep. 541],
    A judgment must be void to render it subject to collateral attack. Gaw v. Glass Co. 11 Circ. Dec. 32 (20 R. 416); Moore v. Bobison, 6 Ohio St. 302; Weyer v. Zane, 3 Ohio 305.
    As to the jurisdiction of the probate court. Doan v. Biteley, 49 Ohio St. 588 [32 N. E. Rep. 600]; Dalton v. Davis, 6 Circ. Dec. 133 (18 R. 878).

      Reversing Wilson v. Wilson, 18 Dec. 711 (6 N. S. 489),

   CRAINE, J.

(Orally.)

This action was brought in the probate court by Isaac N. Wilson, as administrator of the estates of Cynthia Jane Wilson and Sarah Ann Wilson, asking for an order to sell certain real estate (lots 512 and 513 in the city of Newark, Ohio), for the purpose of paying the debts of the decedents. Charles O. Wilson, William Wilson, Pauline Wilson and James William Gillies were made defendants. Charles O. Wilson and William Wilson in their answer allege that they are the owners of a one-sixth interest in lots 512 and 513; that they were eotenants of the decedents at the time of their death. James W. Gillies files the same kind of an answer, claiming to be the owner in fee simple of an undivided one-sixth, and they pray judgment for their share.

A reply was filed by the administrator to these answers, denying certain matters and setting up as an affirmative defense that these claimed heirs were barred by an adjudication of the court of common pleas; and also claiming a prescriptive right.

The probate court and the common pleas court held that they were barred by the statute of limitations, twenty-one years having run against them. The case is brought to this court to review the judgment of the court of common pleas. A history of the case is somewhat as follows:

John D. Wilson, who was a single man, left this country for California about 1850, and nothing has been heard from him since. The presumption is that he died. Cynthia Jane Wilson and Sarah Ann Wilson were sisters of John D. Wilson, and inherited one-sixth each; James William Gillies inherited one-sixth through his mother, who inherited from John D. Wilson; Charles O. and William Wilson claim to inherit from their father, John O. Wilson; who, in turn, inherited from his father, Joseph Wilson; who, in turn, inherited from John D. Wilson, who went to California.

The principal contention of the parties is, whether or not Charles O. Wilson, William Wilson and James Gillies were barred by the proceedings in the court of common pleas, brought in 1884. In that year Cynthia Jane Wilson and Sarah Ann Wilson brought an action in the common pleas court of this county against John D. Wilson (the man who went to California) if living, and if dead then against the unknown heirs.of John D. Wilson. An,affidavit was made, which reads:

“Cynthia Jane Wilson, being sworn, says that she is about to commence suit against the unknown heirs of John D. Wilson, deceased, and against the said Wilson if living, the object and prayer of which is to quiet the title of herself and coplaintiff, Sarah Ann Wilson, to lots 512 and 513 in the city of Newark, Ohio, against any claim or interest therein of the unknown heirs of John D. Wilson, deceased, or of the. said John D. Wilson if living, and that the said defendants claim or may claim an interest therein adverse to the interest of the plaintiffs who are the owners of and in possession of said realty.”

It is said that this affidavit is not sufficient. We have examined the statutes in force at that time, arid we find that the affidavit was. drawn strictly in conformity to the statutes that were then in force. It will be noticed, however, from this affidavit that she wants to bring an action against John D. Wilson, if living, to foreclose his rights. If he is not living, then she wants to bring it against his unknown heirs. She does not bring the action against the heirs of John D. Wilson but against the unknown heirs of John D. Wilson. I emphasize that because of what may be said hereafter, in view of the fact that the court' is not in entire harmony in this case.

Publication was made, and a decree was entered:

“It is therefore ordered, adjudged and decreed that the title and possession of the said Sarah Ann Wilson and Cynthia Jane Wilson to all and singular the premises in the petition described, to wit: situate in the county of Licking and state of Ohio, and in the city of Newark, and being lots numbers 512 and 513 in said city, be, and the same hereby are quieted as against the defendants, and each and every one of them, and all persons claiming under them.”

Who were the defendants? John D. Wilson and the unknown heirs of John D. Wilson. The action was to quiet the title against the unknown heirs of John D. Wilson.

We think, in a case like this, where an attempt is made to quiet title against parties, nobody’s title ought to be quieted who is not made .a party. Were Charles O. Wilson, William Wilson and James W. Gillies unknown heirs of John D. Wilson? The majority of the court, at least, think not. We think the evidence s in this case shows that the plaintiff knew of Charles O. Wilson, William Wilson and James W. Gillies. In 1882 she presented this book (indicating) to Charles O. Wilson and William Wilson. They were residents of this state; they •were minors, one being about eleven and the other fifteen years of age. We think that this decree operates no further than its terms import, .and a majority of the court think that this decree did not quiet the title against Charles O. Wilson, William Wilson and James William Gillies, because they were not within the class named as unknown heirs. There is no place where the evidence shows that they were in that ■class. They were the known heirs, and not the tmknown heirs, and to preclude them there must be some evidence to show that they fell within the class of unknown heirs.

Another question is raised: that of the statute of limitations; that title was acquired by adverse possession.

Charles O. Wilson, William Wilson and James William Gillies were cotenants; that is, they were seized of an undivided one-sixth; two ■of them had the one-sixth jointly; and James S. Gillies had one-sixth to himself. Now, were they barred by the statute of limitations ? That is the next question. In Youngs v. Heffner, 36 Ohio St. 232, we find the syllabus reads as follows:

“The statute of limitations does not run in favor of a tenant in ■common in the occupancy of the premises, against his cotenant, until ■some overt act of an unequivocal character, clearly indicating an assertion of ownership of the entire premises, to the exclusion of the right of the cotenant.

"The legal presumption of death which arises from, the absence of •one from his home for the period of seven years, and w;ho in the meantime is not heard of, is but prima facie evidence of the fact, and may be rebutted by counter-proof.”

In Hogg v. Beerman, 41 Ohio St. 81 [52 Am. Rep. 71], a portion of the syllabus reads as follows:

“Wien a grantee enters under a deed describing his estate as a tenancy in common with others, his possession will be presumed to be not adverse to the owners of the other undivided interests, until, by unmistakable acts or declarations, of which his cotenants had, or ought to have taken, notice, he claims the entire ownership.”

So that where-there are tenants in common and any one or more of the tenants undertake to set the statute of limitations running against the other eotenants who are not in possession, there must be some overt act, unequivocal in its character — plain' and decisive — so as to inform the person that the tenant in possession is claiming it adversely.

In this ease, these parties were in possession of the property by reason of being heirs of John D. Wilson; that is, because they owned the two-thirds interest. Now, ordinarily, possession of itself is notice of an adverse claim, but they had a right to that possession. What act did they do that notified these two infants that they were claiming adversely ? It is said that there was a deed made and put upon record, but it does not appear that these heirs were informed of that. It is also said that the bringing of the suit to quiet title was notice to them. We are cited to the ease of Broderick’s Wills, In re (Kieley v. McGlynn), 88 U. S. (21 Wall.) 503 [22 L. Ed. 599], I believe. That case we do not think is similar to the one at bar, because in that case the co-tenants had been made parties, and the claim there was that there was a defect in the judgment. We do not think that the act of bringing the suit in this court to quiet title was of such a public nature that it would put these children, who were infants at that time, upon their guard and inform them of the fact that these people were claiming adversely; and the majority of -the court feel that, under the evidence in this case, these heirs had no actual or constructive notice of an adverse claim, and that the claim as to adverse possession has not been established. And for that reason the judgment of the common pleas court will be reversed.

Donahue, J., concurs.

Taggart, J., dissents as to the last syllabus, and to the judgment of the court that the record does not show an adverse holding by the tenants in common for more than twenty-one years, and to the reversal of the judgment.


source: Caselaw Access Project

author: SWING, J.

license: Public Domain

text:
    ERROR — TRUSTS AND TRUSTEES.
    [Hamilton (1st) Circuit Court,
    December 5, 1908.]
    Swing, Giffen and Smith, JJ.
    Tedtmann v. Tedtmann et al.
    Ereob Proceedings to Confirmation of Reference foe an Accounting of a Trust, do not Permit Review of Prior Decree Declaring Trust.
    The final decree, in a suit to (1) declare a trust in lands and (2) for an accounting of rents and profits, to which error may be prosecuted to review the question as to whether the land was held in trust or in fee is that in which the controversy as to title was determined; hence, such question cannot be reviewed on error to a subsequent decree confirming.-the report of the referee fixing .the amount of rents and profits
    [Syllabus approved by the court.]
    Error to Hamilton common pleas court.
    E. Á. Hafner, for plaintiff in error.
    Burch & Johnson, for defendant in error
   SWING, J.

This was an action in the court of common pleas by the heirs of Martin Tedtmann, Sr., against Martin Tedtmann, Jr.,'wherein it was alleged that Martin Tedtmann, Sr., had purchased certain real estate in the city of Cincinnati and placed the same in the name of his son, Martin Tedtmann, Jr. That Martin Tedtmann, Sr., occupied and improved said property until the time of his death, in 1903. That since his death said Martin Tedtmann, Jr., has occupied said property and claims to own the same.

The court was asked to find that said property was held by said Martin Tedtmann, Jr., in trust for himself and his brothers and sisters, and account for rents .and profits, and for the sale of the property and for equitable relief. Martin Tedtmann, Jr., denied the claim -of plaintiffs and claimed to be the owner in fee simple of the premises. On September 10, 1906, the court rendered judgment in the case, stating its finding of fact and law separately. It found the issues in favor -of the plaintiffs. That they were the owners of the premises and that the defendant held the legal title to the premises in trust for the plaintiffs. The court ordered the property sold and appointed a referee to .ascertain the amount of the rents and profits for which Martin.Tedtmann, Jr., was liable. To this decree Martin Tedtmann, Jr., prosecuted error in this court, the petition being filed May 7, 1907, and the ease numbered 4406. On June 3, 1907, this court struck the petition from the files for the reason that the petition was not filed within the time for which error might be prosecuted and therefore the court had no jurisdiction of the subject-matter.

Afterwards the referee made his report. The parties agreed as. to the amount of the rents and profits and on this the referee made his report and this report was confirmed by the court on July 23, 1907, and a petition in error was filed in this case in this court November-20, 1907, although the bill of exceptions was not signed until December 21, 1907, being more than four months after the judgment confirming the referee’s report.

There is no contention in this case that the report of the referee-was wrong in any particular; his finding was conceded to be correct if the -judgment of the court rendered September 10, 1906, was correct. And what Martin Tedtmann, Jr., seeks to set aside in this court is. the decree of September 10, 1906, wherein it was found that he held the premises in question as a trustee for himself and his brothers and sisters, and he claims that the final judgment to which he has a right to prosecute error is the judgment of July 23, 1907, confirming the referee’s report, and that the decree of the court rendered September-10, 1906, was merely interlocutory and it is brought up by the final decree of July 23, 1907, confirming the referee’s report.

We are of the opinion- the final decree to which error could have been prosecuted so as to bring before this court the question as to-whether Martin Tedtmann, Jr., held this property in trust or in fee-was the decree of September 10, 1906, wherein the court decided this controversy. .Of course he could prosecute error to the judgment confirming the referee’s report, but there is no claim that there is any error in the finding of the referee. McRoberts v. Lockwood, 49 Ohio St. 374 [34 N. E. Rep. 734].

Judgment affirmed.

Oiffen and Smith, JJ., concur.


author: SMITH, J.

text:
    CORPORATIONS — MORTGAGES.
    [Hamilton (1st) Circuit Court,
    May 23, 1908.]
    Swing, Giffen and Smith, JJ.
    Fritsch Manufacturing Co. v. Elmont Building & Saving Co.
    Mortgage Executed by Corporation not Invalid fob Want of Record in Minutes of Certificate of Authority.
    The certificate of authority for the signing of a mortgage b'y officers of a corporation will not be held insufficient because the certificate does, not appear to have been recorded in the minutes of the company, where-there is evidence that a certificate was authorized by the board of directors and both parties to the mortgage relied on its correctness. Boesch. v. Display Horse Oo. 7 Circ. Dec. 374 (14 R. 289), followed.
    Error to Hamilton common pleas court.
    L. J. DoIIe and W. C. Taylor, for plaintiff in error.
    R. A. Powell, for defendant in error.
   SMITH, J.

From an examination of the evidence in the above case we are of' the opinion that the judgment of the court below should be affirmed. While the testimony discloses loose conduct upon the part of the president and treasurer of the plaintiff in error company, who also was treasurer of the defendant in error company, yet the fact remains, fairly established that the Clara Fritsch mortgage was assumed by the Fritsch Company and, when the new mortgage was executed in October, 1894, Fritsch, as treasurer of the building association, had cash in his hands which, with the refunding of the balance due on the first mortgage, was within a few hundred dollars sufficient to make the $10,000-loan, and also pay quite a sum to other parties.

A part of the consideration of the mortgage in suit was the cancellation of the Clara Fritsch mortgage, and it is apparent from all the; evidence that the Fritsch Company received the benefit of the loan in question and the consideration therefor.

The certificate of authority to the officers to sign the mortgage under the evidence in the case, we think is sufficient. It is a proper-certificate, and while it may not appear recorded in the minutes of the company, yet this would not justify its rejection, where there is evidence' that such action was taken by the board of directors, and that both companies acted and relied upon its correctness.

Parties dealing with officers of a corporation are not bound to know that, every formality required of such officer has been performed. Bosche v. Display Horse Co. 7 Circ. Dec. 374 (14 R. 289).

The form of the mortgage also would not affect the right to recover for the reason as already stated, the Fritsch Company received the benefits of the transaction.

. We, therefore, think the equities of the ease are with the defendant in error, and the judgment below will be affirmed.

Swing and Giffen, JJ., concur.


author: GIFFEN, J.

text:
    ATTACHMENT AND GARNISHMENT.
    [Hamilton (1st) Circuit Court,
    June 6, 1908.]
    Swing, Giffen and Smith, JJ.
    Brandt et al. v. Rabenstein et al.
    Money Garnished in a Void Proceeding Returned to Garnishee.
    Where it has been adjudged on review of a suit in attachment that the. justice of the peace was without jurisdiction, any order which the justice may have made as to payment of the money is void and it becomes his duty to return it to the garnishee, notwithstanding the dismissal of the petition by the reviewing court may have been, erroneous.
    Error to Hamilton common pleas court.
    O. H. Fisk, for plaintiff in error.
    G. C. Wilson, for defendant in error.
   GIFFEN, J.

While there is some confusion in the petition as to what order or judgment of the justice of the peace was reversed by the common pleas court, it is made definite and certain by reference to the number of the ease in the latter court, the essential averment being that the common pleas court dismissed the action pending before the justice, and that judgment being affirmed by the circuit court remains unreversed. The motion upon which the judgment is founded was not merely to discharge the attachment, but to dismiss the action for want of jurisdiction of the person of the defendant, and is almost identical with that considered in the case of Smith v. Hoover, 39 Ohio St. 249. The judgment of reversal and final judgment of dismissal speak as of the date of the judgment reversed. Rupp v. Phillips, 1 Circ. Dee. 65 (1 R. 108).

Even if it be conceded that the courts erred in dismissing the action, and that it was still pending before the justice, it being adjudged that the justice was .without jurisdiction, any order he made disposing of the money otherwise than by payment to the garnishee was null and void; and the omission of the judgment debtor to give an undertaking for a stay of execution did not relieve the justice of the obligation to return the money to the garnishee, who, although not the absolute owner, had paid it to the justice upon his order and was liable to account to the real owner.

We find no prejudicial error in the record and the judgment will be affirmed.

Swing and Smith, JJ., concur.


text:
    LANDLORD AND TENANT — NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    July 3, 1908.]
    Swing, Giffen and Smith, JJ.
    Jacob Mueller v. Margaret Busch.
    1. Wife of Tenant Plaintiff in Suit for Negligence against Landlord not Material Variance.
    In an action against a landlord on account of injuries to a tenant due to a defective step, tbe fact that proof discloses the plaintiff to be the wife of one of the tenants of the building, does not present a material variance.
    2. Burden of Proving Knowledge of Defects on Plaintiff.
    Where the averment is that the landlord had knowledge of the defect and the plaintiff did not, and the landlord negligently permitted the defect to continue, the plaintiff assumes the burden of proving these allegations; and, upon request therefor, the landlord is entitled to special instructions delivered to the jury before argument embodying the law with reference to such knowledge and negligence.
    3. Refusing Special Instructions before Argument not Cured by Like Instructions in General Charge.
    Error in refusing to give special instructions before argument, where of a proper character and correctly expressed, is not cured by the giving of like instructions in the general charge.
    Error to Hamilton common pleas court.

      C. W. Baker and Thorne Baker, for plaintiff in. error.
    A. C. Ross and Smith & Hawke, for defendant in error.
   GIFFEN, J.

The plaintiff avers in her' second amended petition that she was at the time of her injury the tenant of the defendant, but the proof shows that she was the wife of one of the tenants. - This variance is not material in view of the averment that the defective steps causing the injury were a part of a common passageway used by plaintiff and other tenants, and that there was a covenant on the part of defendant to make repairs. The rule in such case is stated in Jones, Landl. & Ten. See. 614, as follows:

“The prevailing rule seems to be that a landlord who leases separate portions of the same building to different tenants, and retains exclusive control, for the purpose of repairs and construction, of the porches, galleries and stairways, used in common by all the tenants, is under an implied obligation to use reasonable diligence to keep such reserved parts (in a safe condition for the use of a tenant occupying a part of the premises and for the members of his family. For failure to perform that duty the law attaches to him liability for injury to such tenant or to a member of his family.”

The particular defect of the steps is not stated, but plaintiff avers, that defendant had knowledge of the defect and negligently permitted it to continue, and that she had no knowledge of it. She thereby assumed the burden of proving that the defendant had knowledge, or by the exercise of ordinary care would have known of the defect; and that-she did not know, nor by the exercise of ordinary care could have known that the steps were out of order, or knowing it gave notice to the landlord.

These propositions were fairly embraced in the first and last special instructions requested by the defendant to be given to the jury before argument, and refused by the court. The error in refusing to give such instructions before argument, was not cured by giving like instructions in the general charge and was prejudicial.

Judgment reversed and cause remanded.

Swing and Smith, JJ., concur.


text:
    STREET RAILWAYS.
    [Hamilton (1st) Circuit Court,
    1908.]
    Swing, Giffen and Smith, JJ.
    Spring Grove Cem. Proprs. v. Cincinnati St. Ry. et al.
    Operation of Street Railway under Permit to Maintain Loop on Private Land.
    An agreement for the maintenance of a street railway loop on private property for a period not exceeding twenty-five years, for a consideration of one dollar per year while so maintained, and upon the cessation of the use thereof it shall be removed upon demand of the owner of the land at the expense of the street railway company, is a mere permit or license for a period not exceeding that named and the owner of the land cannot insist on the operation of cars over the loop in the face of an ordinance providing for a different route.
    Lawrence Maxwell, for plaintiff.
    Paxton & Warrington and Kittredge & Wilby, for defendant.
   SMITH, J.

We are of opinion that all the letters, reports, dealings, negotiations, etc., had between the plaintiff and the defendant, the Cincinnati Street Railway Company, relative to the subject-matter in dispute in this case culminated in the written agreement under date of April 21, 1898. All matters, therefore, extrinsic of this agreement are eliminated, and the rights of the parties are to be determined under the terms and conditions thereof.

By the terms of the contract, the plaintiff granted to the defendant, the Cincinnati Street Railway Company, the right to maintain a loop or part of its railway on Gray road upon the property of plaintiff; to erect and place thereon certain poles, wires and other appurtenances necessary in the construction and operation of its railroad; and to construct and maintain a waiting room upon its said property, all in consideration of one dollar a year for a period not exceeding twenty-five years from April 21, 1898, while said track, appurtenances, waiting room, etc., should remain on the plaintiff’s property; and that upon cessation of the use of either said track or said waiting room, both, at the demand of the plaintiff, should be removed by the defendant at its own charge and expense, and the property of the plaintiff should be restored.

It was further agreed that at the expiration of said twenty-five years the said defendant would remove said track, appurtenances and waiting room from the property of plaintiff, and would restore said property to as good order and condition as the other property of the plaintiff adjacent thereto. The contract also provided, that if the defendant failed to perform any of the agreements it had entered into for twenty days after any complaint made by the plaintiff the license and agreement entered into, between the parties, at the option of the plaintiff, should be terminated, and plaintiff would have a right to remove the track with its appurtenances and waiting room, and to restore the ground whereon they stood as to the good order and condition of the adjacent property of the plaintiff at the expense of the defendant.

In accordance with this agreement said defendant built and operated through itself and its lessee said railway until May 10, 1903, when it is claimed said railway company abandoned the operation of its line on W-inton and Gray roads north of Epworth avenue, except on Sunday, on which day it ran a car from the intersection of Epworth avenue and Winton road. It appears that this abandonment was under the provision of an ordinance, No. 414, passed February 10, 1903, by the council of Winton Place to provide for the extension of Route No. 1 of Winton Place Street Railway as established by ordinance, passed November 2, 1894, which gave to the Cincinnati Traction Company, lessee of the Cincinnati Street Railway Company, the right, whenever it saw fit, to abandon the operation of so much of its street railroad as lay within the village, on Winton road, north of Epworth avenue and on Gray road, and to remove the rails, poles, fixtures and appliances on that portion of Winton and Gray roads upon said abandonment; but, until it so determined to abandon this portion of its road, it should have the right to operate cars over the same at such times and upon such days as it might see fit.

The ordinance has heretofore been held by the Supreme Court to be valid and binding as between the village and the street railroad company, and when the contract of April 21, 1898, was made, the parties thereto must be held in contemplation of law to have entered into the same under and with the knowledge of the law of the'state and their rights thereunder. A contract such as in this case could only be made subject to the laws relating to the control of and granting of franchises to street railway companies by the council of villages, as municipalities upon whose streets said railway was to be built and operated, and unless there is something in the contract itself which the plaintiff could enforce against the defendant company, notwithstanding the ordinance permitting the defendant company to abandon the operation of its road, to compel it to so operate for a period of twenty-five years, we are inclined to the opinion that plaintiff eonld not insist upon the operation of the railroad by the defendant company in the face of the ordinance in question.

Upon an examination of the contract we fail to find any such provision. The contract is merely a license or permit to the defendant to use for a period not exceeding twenty-five years the property of the plaintiff for street railway purposes.

It seems to contemplate just such a course as has happened in this ease, for it provides what shall take place upon cessation of the use of the railroad track, for the payment of one dollar per year while said track, appurtenances, etc., should be upon the property of the plaintiff, and it also provides what shall take place upon the failure of the defendant to perform any of its agreements for twenty days after complaint made by the plaintiffs. Nowhere in the agreement does the defendant bind itself to build, maintain and operate a railroad upon Gray road and Winton road for a period of twenty-five years, but rather a license or permission is given the defendant to use the property of plaintiff as specified in the agreement for a term not longer than twenty-five years, evidently meaning or contemplating thereby that the defendant might maintain and. operate its track with its appurtenances for a shorter period. We think, therefore, that the equities of the case are with defendants, and the relief prayed for in the petition will be denied.

Swing and Giffen, JJ., concur.


author: PER CURIAM.

text:
    MECHANICS’ LIENS — PARTIES.
    [Hamilton (1st) Circuit Court,
    November, 1907.]
    Swing, Giffen and Smith, JJ.
    Alex. M. Hazelgreen et al. v. Cincinnati & Ind. W. Ry. et al.
    Making New Parties for Purpose of Distribution to Material Men.
    In an action by a contractor against a railway company for damages for breach of contract it is not error, where judgment has been obtained by the contractor, to permit the railway company to mate material men and others asserting claims against the contractor parties to the action for the purpose of distribution.
    Error to Hamilton common pleas court.

      L. W. Goss, for plaintiff in error.
    J. W. Peck,.for defendant in error.
   PER CURIAM.

The court is of the opinion that there is no error in this case. The petition below was filed by Henry S. Hazelgreen, doing business as H. S. Hazelgreen & Co., against the Cincinnati, Indiana & Western Eailroad Company to recover for a breach of contract. The railroad, company filed its answer and cross petition asking judgment in a certain sum against said plaintiffs. These two questions were submitted to a jury who found in favor of the plaintiffs against the defendant in the sum of $1,231.91. Thereupon the railroad company made various persons, claiming to have performed labor, furnished supplies, food, board, etc., to the contractor, parties defendant, and asked'that said sum so recovered against it be distributed among said laborers and material men.

It cannot be. claimed that the amount found by the jury as due the plaintiffs, was outside and above the other sums that the defendant railroad company owed for labor and supplies furnished, and that these amounts were deducted from the entire sum due. The verdict returned fixed- the- entire amount that was owing from the railroad to plaintiff,/ and in this amount the various laborers and material men were interested. We see no error in having them made parties to the action for purposes of distribution.

The judgment therefore will be affirmed.


author: <jIFFEN, J.

text:
    INTOXICATING LIQUORS.
    [Hamilton (1st) Circuit Court,
    May 23, 1908.]
    Swing, Giffen and Smith, JJ.

      Petition to Prohibit Sale of Intoxicating Liquors (Winton Place).
    1. Jones Law Petition not Pbima Facie Evidence of Sufficiency.
    A petition under the Jones local option law (98 O. L. 68) cannot be taken as prima facie evidence of the facts necessary to decide upon its sufficiency, except in the absence of a request upon the part of any .elector to be heard.

      2. Burden of Proof.
    The burden of proving the facts alleged in the petition rests upon the petitioners; and the burden of proving that a signature was procured through fraud or misrepresentation rests upon the party who alleges that he was misled and is asking for the withdrawal of his name from the petition.
    3. Number of Signatures Essential.
    The number of signatures to the petition must equal a majority of the votes cast at the last regular municipal election.
    4. Judicial Knowledge of Politics of Newspapers.
    The court may take judicial knowledge of politics of newspapers in its jurisdiction in which notice of hearing on Jones law petition is published.
    Yeatman & Yeatman, for the petition.
    J. D. Creed and F. P. Muhlhauser, contra.

      Affirming Jones Law, In re Petition, 53 Bull. 9 (5 O. L. R. 517).

   <jIFFEN, J.

Under the act of May 15, 1906 (98 O. L. 68), the provision that "the mayor or judge shall examine the petition at a public hearing” requires a trial or investigation of the facts necessary to decide upon the sufficiency of the petition and in no event shall the petition be taken as prima facie evidence of such facts, except upon failure of any person or persons, who are electors of the district, to ask to be heard thereon.

The burden of proving such facts rests upon the petitioners; but if any elector wishes to withdraw his own or authorized signature from the petition, the burden falls upon him to prove to the mayor or judge that it was secured through fraud or misrepresentation.

The petition must be signed or authorized to be signed by as many •qualified electors as equal a majority of the votes cast at the last regular municipal election in such residence district.

It is common knowledge in this jurisdiction that the two newspapers known as "The Cincinnati Daily Enquirer” and "The Cincinnati Daily Commercial Tribune” are of opposite party politics, hence the court will take judicial notice of that fact.

Of the thirty-eight petitioners who sought to withdraw their names from the petition upon the ground of misrepresentation that the liquor dealers intended to establish a saloon upon a lot near a church in such residence district, only fifteen were induced, according to their own testimony, to sign such petition by any misrepresentation of a present intention on the part of such dealers to locate a saloon near a church..

The statements made to the other twenty-three petitioners related to facts, the truth or falsity of which could be ascertained by reading the petition. Many of the petitioners did not, according to their own testimbny, rely upon such statements, and none had a right to so rely.

We deem it unnecessary to weigh the evidence in rebuttal on the question of misrepresentations, because if we should find that the fifteen names were improperly counted, there were still enough remaining to equal a majority- of the votes cast at the last regular municipal election.

The fifteen names above referred to are as follows:

Isaac J. Fieler, W. J. Williams, Chris. Seibert, James Finn, Adolph Lukens, Fred Schillins, George Maffey, Harry E. Shaffer, Peter Heuel, John Doberrer, Jr., Fred Goetz, Clifford Campbell, George Huber and Philip Kuntz.

While the depositions taken during the progress of the trial were not and could not be filed in accordance with See. 5282 Rev. Stat., yet it appears from the whole record which is before us that no prejudice resulted to the plaintiff in error on that account.

The judgment will therefore be affirmed.

Swing and Smith, JJ„ concur.


text:
    TAXATION.
    [Hamilton (1st) Circuit. Court,
    May 16, 1908.]
    Swing, Giffen and Smith, JJ.
    James E. Mooney, Tr. v. Charles C. Richardson, Aud. et al.
    1. Essential that Complaint be Made by One Interested in New Equalization.
    A hoard of review, sitting as an annual board of equalization obtains jurisdiction only by a complaint of an owner of real estate interested in a new equalization.
    2. Equalization Exercised over all Real Estate in Municipality.
    Equalization, while ordinarily confined to lots or lands in the immediate vicinity of the lots complained of, may be exercised over real estate within municipal limits though not in the same locality or district; but it cannot be exercised to effect a general revaluation.
    Appeal.
    Burch & Johnson, for plaintiff.
    L. A. Ireton, W.. R. Collins, W. M. Schoenle and G. T. Poor, for defendant.
   GIFFEN, J.

In order to give the board of review, sitting as an annual board of equalization, jurisdiction over the property of plaintiff, it was not, necessary that a complaint be filed against the valuation of his property, but only by an owner of real estate interested in a new equalization. Davies v. Land Invest. Co. 76 Ohio St. 407 [81 N. E. Rep. 755].

The land of such owner may be grossly overvalued as compared with a large number of lots in the same locality or district which are relatively uniform in value, and yet the amount deducted from the valuation of the former may be distributed over the latter so as to, make the entire group uniform in valuation. It is this process of equalization that - makes the number of parcels of land acted upon so disproportionate to the number of complaints entertained and extends and enlarges the inquiry by the board.

Ordinarily the equalization should be confined to lots or lands in the immediate vicinity of the lots complained of, but as the power of' the board is coextensive with the boundaries of the municipal corporation it may, in a proper case, be exercised over lots or land not in the same locality or district but within the corporation. It may not, however, be exercised for the purpose of a general revaluation of the real estate in any locality or district, and where the additions are largely in excess of the reductions such purpose will be inferred. There is. nothing in the evidence to show that the action of the board was unjust or arbitrary to the extent at least of adding to his lot a proportionate amount of the reductions made in the valuation of other lots. Indeed the statement filed by him with the board before action taken shows, “our views as to increase” are substantially the same as those finally adopted by the board.

We are of the opinion, therefore, that the plaintiff is entitled to an injunction restraining the collection of the excess over his proportionate share of the additions rendered necessary by the reductions of $- made by the board.

The taxes paid. voluntarily cannot be recovered; but the taxes paid for the first half of 1906 may be applied to the payment of the legal tax for the whole year. Cincinnati v. James, 55 Ohio St. 180 [44 N. E. Rep. 925].

Decree accordingly.

Swing and Smith, JJ., concur.


text:
    BRIDGES — EASEMENTS—MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Circuit Court,
    February 29, 1908.]
    Swing, Giffen and Smith, JJ.

      Catherine Offutt, ex rel. Cincinnati v. John Roth Packing Co. et al.
    3. Authority to Suspend Private Bridge Across Street.
    An ordinance granting a packing company the right to maintain a bridge across, twenty feet above, and no part of it placed upon the surface of, a street, does not contravene Sec. 28 of the Munic. Code of 1902 (Lan. Rev. Stat. 3923; B. 1536-131), providing that streets shall be kept open, in repair and free from nuisance.
    2. No Prescriptive Rights of- Light, Ant and View in Street Exist against Private Owners.
    Injunction does not lie against maintaining a private bridge across a street as impairing the easement of light, air and view of a private abutting owner.
    3. Injunction Does not Lie against Connecting Bridge Over Street not Impairing Ingress and Egress.
    Injunction will not lie at the suit of a property owner against the connecting of buildings on opposite sides of the street by a bridge twenty feet above the pavement, where. the ingress and egress of the plaintiff is in nowise impaired, and the injury which he will sustain, if any, is not different in kind from-that suffered by the public at large.
    Error to Hamilton common pleas court.
    J. T. Harrison, for plaintiff in error.
    Geoffrey Goldsmith, for the city.
    D. F. Cash, for the Roth Packing Company.

      Right to suspend private bridge across street approved by Supreme Court in Kellogg v. Traction Co. 80 Ohio St. 331.

   SMITH, J.

We are of the opinion that the ordinance passed by. the council of the city of Cincinnati, granting to the defendant, the John Roth Packing Company, the right to maintain a bridge across Oehler street, is valid. It does not contravene Sec. 28 of the municipal code, which provides as to streets that council “shall cause the same to be kept open and in repair and free from nuisance.” The ordinance provides that said bridge shall be twenty feet above the street. No part of it is placed upon the surface of the street, and the city can still keep the street ©pen, in repair and free from nuisance. Nor do we think the ordinance unreasonable, exclusive' or indefinite.

The plaintiff seeks an injunction against maintaining this bridge, on the ground that it is an impairment of her easement of light, air and view. Such an eásement does not exist, we think, in Ohio by prescription against-a private owner. Mullen v. Stricker, 19 Ohio St. 135 [2 Am. Rep. 379] ; Letts v. Kessler, 54 Ohio St. 73 [42 N. E. Rep. 765; 40 L. R. A. 177]. And we do not think it exists against a municipality.

Nowhere in the petition does plaintiff complain of any obstruction to the ingress and egress of her lot. Her property is some distance removed from the property of the defendant, the Roth Packing Company, and the bridge in question, and does not nor can it, under the allegations of the petition, abut upon the portion of the street which she claims is obstructed. The injury, if she suffers any at all, is not different in kind from that of the general public. The access to her property is not impaired or destroyed, and as we have already stated, of this she does not ■complain. We do not think, therefore, that the construction of the bridge in question is such an obstruction of the street, under the allega-' tions of the petition, to the injury of the plaintiff, as would entitle her to the relief sought.

The judgment of the court below will be affirmed.

Swing and Giffen, JJ., concur.


text:
    CONSTITUTIONAL LAW — LEGISLATURE.
    [Hamilton (1st) Circuit Court,
    1908.]
    Swing, Giffen and Smith, JJ.
    State ex rel. Hiram M. Rulison v. Benjamin F. Gayman et al.
    1. Cincinnati Probe Commission Unconstitutional as Conferring Judicial Power.
    The joint resolution passed by the general assembly at its recent session, February 14, 1908 (99 O. I». 621), providing for the appointment of a comm if'ee to investigate charges of corruption in the government of the city of Cincinnati and county of Hamilton, is an exercise of judicial power not expressly conferred by the constitution, and a gross violation of Art. 2, Sec. 32 thereof, unless it can be justified on the ground. of seeking information in aid of intended legislation.
    2. Intemperate Language, etc., Indicates Other than Additional Legislative Purpose to Remedy Defects in Law.
    But the intemperate language used in the resolution and the liéense and the revolutionary procedure proposed, together with the declaration that all laws are being violated by an organized band which no one dares to oppose, make it clear that hope is not based on additional legislation which obviously could not be rendered effective under such circumstances, and cause it to be evident that the resolution was not adopted in good faith for the purpose of providing remedial laws, and places it. beyond the pale of the constitution.
    3. Adjournment Sine Die of Legislature Renders Remedial Legislation Impossible.
    And were this not true, the fact that the general assembly has adjourned sine die renders it impossible that information which might be obtained by such an investigation shall be used by the body seeking it for the purpose proposed, or that it will be so used by a body over which the recent general assembly will have any control, and therefore deprives, the investigation of the purpose announced, and. leaves the matter in the same situation as though no purpose had been declared by the. resolution.
    Appeal from Hamilton common pleas court.
    H. M. Rtilison and F. F. Dinsmore, for plaintiff.
    Theodore Horstmam, for defendant.
   GIFFEN, J.

The pleadings in this case raise the question of the validity of a. joint resolution of the general assembly and of the power of the committee appointed thereunder to investigate charges of corruption existing in the government of the city of Cincinnati and the county of' Hamilton.

The preamble recites the appointment of a former committee for-the same purpose, which disclosed many abuses subversive of government by the people, one of which was corrected by a subsequent act, of the legislature; charges in general terms of usurpation of power belonging to the people, bribery, corruption in office, wholesale election frauds and other forms of misgovernment. The resolution provides, for the appointment of a committee of six, three from each house, with full power to investigate all said matters and charges and all matters. and things in any way pertaining thereto; empowers the committee to-compel the production before it of any books and records, letters or documentary evidence of any character, which, in the judgment of the committee or a majority thereof, pertains to any matter or thing under-investigation and wherever found, and also to compel the attendance of any witnesses; and directs the committee to make report to the general assembly if in session, and if not to the governor for transmission to the succeeding general assembly, of its proceedings with full transcript, of testimony taken by it together with its findings in writing with such recommendations for future legislation and amendment to existing legislation as the disclosures of said committee may warrant.

The distrust of our institutions, laws and men expressed by the legislature in this resolution is unbounded and deplorable, extending; ven to its own ability to provide a remedy, as it imposes tbe burden upon its successors. The very nature of the power granted as well as the persistence in asserting it after the decision of the case of State v. Guilbert, 75 Ohio St. 1 [78 N. E. Rep. 931], calls for a determination of the question whether the right to exercise it exists at any time independent of the adjournment of the legislature.

The claim is made first that the power conferred is judicial and not legislative, the exercise of which would contravene Art. 2, See. 32 of the constitution, providing,

“The general assembly shall grant no divorce, nor exercise any judicial power not herein expressly conferred.”

The power to subpoena' witnesses, to send for boobs and papers, to hear and determine charges of crime, is certainly judicial in its nature; but whether so in the sense of this constitutional inhibition is not as clear. If the right to punish were added the power would be complete and embrace every act that could be done by the courts; but the very absence of this power shows how barren of good results such proceedings would be, and on the other hand no one can measure the harm that would follow.

The general assembly had, prior to the adoption of the present constitution, not only assumed power not delegated to them, but had usurped a power expressly conferred upon the judiciary, by granting divorces. Bingham v. Miller, 17 Ohio 445 [49 Am. Dec. 471].

This abuse of power, existing for a period of more than forty years, was the occasion of emphasizing the inhibition against granting divorces, and in no sense lessens the force of or in any way qualifies the general provision against the exercise of judicial power not expressly •conferred.

The special as well as the general inhibition existed by implication from the distribution of the powers of the state, by the constitution, to the three departments of government, Zanesville v. Telegraph & Tel. Co. 64 Ohio St. 67 [59 N. E. Rep. 781; 52 L. R. A. 150; 83 Am. St. Rep. 725], but owing to the growing temptations to exercise power not conferred it was deemed wise to deny the right in positive terms. The resolution empowers the committee in effect to frame indictments, hear ex parte evidence, and determine the guilt or innocence of the accused, who would thereby be exposed to all the censure and disgrace attending a legal trial without the privilege of making a defense, and without exempting them from subsequent trial for the same offense. It was intended to avoid such confusion of power and protect the personal and property rights of the citizen by adopting this provision of the constitution, and unless this investigation can be justified upon the ground of seeking information in aid of intended legislation it is a gross violation of such provision. Kilbourn v. Thompson, 103 U. S. 168 [26 L. Ed. 377].

This brings us to an inquiry of the purpose the legislature had in granting such extraordinary power to a special committee — not the expressed, but the real purpose. The resolution declares the purpose to be “for further legislation and amendment to existing legislation as the disclosures of said committeé may warrant;” but the constitutional rights of citizens of this state cannot be invaded by either branch of the government upon a mere declaration of good faith. A present intention to do an act in the future, when brought in question can only be determined by existing conditions. In this case the conditions, relied on are expressed in the preamble to the resolution and are little short of anarchy itself. There is no suggestion of any defect in the criminal statutes thus violated, either in definition or penalty; but the chief complaint is that an organized band of law breakers are defying all laws and no one dare restrain them.

What legislation is proposed to meet a situation like this if found to exist? None whatever, and none could under such conditions be suggested that would be more effective than the present statutes. The efficiency of all law and. especially criminal law lies in the certainty of its enforcement, and it would be a fruitless task to pass numerous, criminal statutes when existing statutes upon the same subjects with ample penalties are violated with impunity. We might with propriety ■suggest the mode of procedure under the constitution and the statutes, were it not that the resolution as a whole forecloses every avenue of escape from the dire calamity by declaring all the instruments for the enforcement of law to be tainted with corruption. Such charges might not be unexpected from irresponsible agitators in the heat and excitement of a political campaign, but so far as we are advised have no pree-, edent in any adjudged case or even in any legislative body.

The language of the preamble is intemperate, illtimed and revolutionary. If sanctioned by the courts the dominant political party will be licensed to prefer, at each recurring election, charges of crime' against the citizens of any community of which its adversary has control and to hear and determine the same.

We are persuaded that however gross may be the abuse óf power, and however flagrant may be the violation of law, the people are not. ready nor willing to abandon orderly and legal procedure in the exposure, conviction and punishment of crime-, and that even the authors of this injustice will, when released from political strife and turmoil, condemn their own production.' We are of opinion therefore that the resolution itself shows that it was not, in good faith, passed for the purpose of remedial legislation, and that an attempt was made to exercise judicial power contrary to the constitution.

If we are wrong in this conclusion the question still arises whether the committee can act after the final adjournment of the general assembly. The right to investigate and gather information in the manner here proposed exists, if at all, as an incident of and by implication, from the power to legislate conferred by the constitution. .An act duly passed by the general assembly is a complete exercise of the power to legislate; but a resolution to investigate for the purpose of further legislation, passed by the same body, is the exercise of a right incident to that power, and if the power itself be surrendered the incidental right goes with it.

When the general assembly adjourned sine die its purpose to use the information in aid of legislation could no longer be carried out; and while it could order the information to be transmitted to its successor, it could not form or express a purpose for nor impose its own upon its successor. The latter would use.the information as it saw fit, without regard to the intention of the former.

It is the same as if no purpose were expressed, and the result is, that an investigation is proposed, without any legislative purpose or any other acknowledged purpose, with authority in the committee t© roam over the entire field of governmental functions and report its discoveries to the next general assembly fresh from the people who alone have power to instruct. Such power to investigate is not conferred by the constitution in express terms nor by implication. Cushing, Law & Prac. of Leg. Assemblies Sec. 496; Pacific Ry., In re, 32 Fed. Rep. 241.

Demurrer to answers sustained.

Swing and Smith, JJ., concur.