text:
    EFFORT TO RESTRICT USE OF DRIVEWAY.
    Circuit Court of Cuyahoga County.
    May R. Remington v. The Fire Proof Warehouse Company et al.

    Decided, December 27, 1910.

      Easements — Character of Use of Driveway — Land to Which Appurtenant.

    1. The use of a driveway provided for in a deed by general language can not be restricted to residence purposes, as distinguished from commercial purposes, though at the time the use was charged upon the land all the premises were used for residence purposes only.
    2. One who buys land, to which is annexed the use of a driveway over another’s land, will nót be enjoined from using said driveway for access to his own land, even though he has added a small additional parcel of land to his original parcel, which additional parcel is also in some small degree benefited by the use of such driveway.

      Remington Locker and Hills é Van Derveer, for plaintiff in error.

      Henderson, Quail & Siddall, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.

       Affirmed without opinion, Remington v. Fire Proof Warehouse Co., 87 Ohio State, 523.

   The plaintiff in this appealed action seeks to enjoin the use of her premises as a driveway by the defendant, the Eire Proof Warehouse Company. Said premises were conveyed by A. G-. Hutchinson, in March, 1899, to the plaintiff, and they consist of sixty-three feet a little northerly of Euclid avenue on' the east side of 115tli street (formerly Rosedale), in the city of Cleveland. The deed of conveyance contained the following clauses:

“Subject to the reservation by the grantor himself, his heirs and assigns, of the driveway use of a strip of land 10 feet wide from front to rear off the southerly side of said premises herein conveyed.
“Free from incumbrances, except the right of driveway heretofore granted by deed of A. G. Hutchinson to R. IT. Fetterman, dated September 4, 1891, and recorded in Yolume 501, page 384, of Cuyahoga county records.”

The deed to Fetterman contains the following clauses:

“Beginning at the northwesterly corner of land in said lot, déeded by us to R. H. Fetterman by deed in Yolume 462, page 593, Cuyahoga county records; thence northerly along the line of our land to the south line of a ten foot wide private driveway about 48 feet to a point therein intersected by a line continued northerly from the northeasterly corner -of land deeded by us to Fetterman and upon the same course as his easterly line; thence southerly in said extended line to the northeast corner of land deeded by us to Fetterman about 16 and 8-12 feet; thence westerly to the place of beginning about 48 feet; also there is granted herein and hereby a use in common by the said grantees, their heirs and assigns, with the grantors, their heirs and assigns, of said private driveway for their joint use and benefit for driving to and from said above described land over said driveway to Rosedale avenue and for no other purpose. The use of said driveway by said grantee to extend no more than 15 feet easterly from the westerly line of land above deeded.”

The previous deed from Hutchinson to Fetterman mentioned in the foregoing quotation conveys the land described therein as “being a part of the parcel of land deeded by Thomas Wilson and wife to A. G. Hutchinson, July 15, 1889.”

The deed from Wilson to Hutchinson includes the major part of the land fronting on Euclid avenue, now owned by the defendant, the Fire Proof Warehouse Company. Plaintiff’s and defendants’ lands fronting respectively on 115th street and Euclid avenue come into contact with each other at right angles in the rear, and the driveway on plaintff’s premises, the use of which by defendants is here sought to be enjoined, is thus physically appurtenant to defendants’ premises. The language of the deed from Hutchinson to plaintiff, by following up the chain of references therein noted, creates an easement appurtenant to the lands retained by the grantor, and said easement is, by appropriate words, expressly made a hereditament, reserved “by the grantor to himself, his heirs and assigns.”

The grounds of plaintiff’s claim to an injunction are these:

First. That at the time she acquired her premises, subject to her grantor’s easement therein of a driveway use, 115th street was, and it still is, an exclusively residence locality, as was also Euclid avenue in the vicinity of its intersection with said street, and the use of said driveway was then confined in fact, and in the contemplation of the parties to the deed of conveyance from Hutchinson to plaintiff, to such driveway purposes as are ordinarily incident to land so used; whereas the defendant’s use of the driveway is for commercial purposes.

Secooidly. It is claimed that the defendant, the Fire Proof Warehouse Company, is now using the said driveway not only for the commercial purposes incident to the altered use of the premises as the site of a storage warehouse, but that said warehouse occupies ten feet more land on Euclid avenue than Hutchinson owned at the time said easement was reserved by him, so that plaintiff’s premises are in fact being subjected to an additional servitude in connection with the use of land to which the driveway use was never intended to be appurtenant.

Upon the first point we are of opinion that the language of plaintiff’s deed concerning the easement in controversy, is not ambiguous and does not admit of the introduction of oral evidence to explain or qualify it. The driveway use indicated by the language used is general and not qualified.

On the second point we hold that although the easement in question is not appurtenant to the easterly ten feet of the Fire Proof Warehouse Company’s property, the additional burden from this cause is relatively so trifling as not to warrant the injunction which plaintiff prays. In so far as the use of the driveway appurtenant to said ten feet is concerned, no substantial use is shown by the evidence. If the defendant should enlarge its warehouse so as to include other land, a different case would undoubtedly be presented. As tbe matter now stands, the plaintiff’s petition will be dismissed, but the defendant will be charged with the costs.


source: Caselaw Access Project

license: Public Domain

text:
    RIGHTS OF CROSS-PETITIONING DEFENDANT ON APPEAL.
    Circuit Court of Cuyahoga County.
    The Cleveland Trust Co. v. John Hartness Brown et al.
    Decided, December 27, 1910.

      Appeal of Case Dismissed After Demurrer to Petition Sustained — • Oross-Petitioning Defendant Brought up by Appeal.

    1. In a proper case appeal may be taken' from a judgment of the common pleas court sustaining a demurrer to a petition and dismissing the same upon the statement of the plaintiff that he does not desire to plead further.
    2. The dismissal of a case after sustaining a demurrer to the petition carries with it the dismissal of a cross-petition setting up a tax lien on the premises involved in the proceedings, and an appeal thereafter by the plaintiff brings up the whole case, including the rights of the cross-petitioning defendant.

      Henderson, Quail As Siddall, for plaintiff in error.

      Hidy, Klein As Harris and A. B. Bernstein, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The defendant Brown moves here for the dismissal-of this appeal upon the grounds that the judgment appealed from is not a final order, in that the dismissal of the petition was voluntarily submitted to by the plaintiff; and also in that the issues tendered by the cross-petition of the defendant, C. S. Horner, trustee, were not disposed of, although a final determination of the cause required their adjudication.

The action was commenced to foreclose a contract lien asserted by plaintiff upon real estate of the defendant Brown. The order appealed from reads:

‘ ‘ October 27, 1910. To Court: The demurrer of the defendant, John Hartness Brown, to the petition, having heretofore been sustained as to the second ground thereof, and the plaintiff not desiring to amend or further plead, it is ordered and adjudged that said petition be, and the same is hereby dismissed, and that the defendants, John Hartness Brown and C. D. Horner, trustee, recover from the plaintiff their costs of this suit. Judgment is rendered against the plaintiff for its costs herein. The amount of the bond for appeal is fixed at $200. ”

We do not deem it necessary to re-examine or to vindicate the grounds of the established practice of the circuit courts of this state to recognize the appealability of actions after judgment rendered upon demurrer to the petition in this matter. We have frequently sustained it; and that, too, despite the suggestion that this practice may permit the bringing of a cause into this court for trial upon the facts, where such trial was shunned below. What hazard, if any, to the parties may result from tacties of this sort, where leave to amend is first sought here, after demurrer sustained below, is another question, and one which has no proper bearing upon their right to appeal.

Upon the remaining ground of the motion, it is true that such issues as were tendered by the cross-petition of Horner, trustee, were not adjudicated. He alleges “that he is the owner and holder of a certain tax certificate No. 82, given by the Auditor of Cuyahoga County for the taxes and penalty for the year 1906, and also for the simple tax for the year 1907, paid on said sub-lot No. 31, described in plaintiff’s petition;” and tha.t there is due him thereon $632.64, with interest and he therefore prays for the sale of said property; that he. be found to have a first lien thereon, and that he be paid out of the proceeds of such sale, after payment of costs, the amount of said lien as aforesaid.

We think this cross-petition does not state an independent cause of action. Even if it alleges facts sufficient to show the lien provided for by Section 2880, Revised Statutes, no such independent mode of enforcing the lien of a purchaser at a delinquent tax sale is there given, as Section 2910, Revised Statutes, gives to a purchaser at a sale of forefeited lands; nor do we know of any precedent for the maintenance of an independent action to foreclose such lien.

We hold that the judgment appealed from is a final order to .which an appeal lies; that the dismissal of the petition necessarily carried with it the cross-petition also, so that nothing remained to be disposed of below; and that the appeal brings up the entire cause.

The motion is overruled.


text:
    CALCULATION OF DIVIDEND ON CERTIFICATE OF DEPOSIT IN INSOLVENT BANK.
    Circuit Court of Cuyahoga County.
    The Mutual Bank v. The Cleveland Trust Company, Assignee et al; Two Cases.
    Decided, January 5, 1911.

      Insolvent Sstatc — Dividend on Collateral Deposited with Another.

    A certificate of deposit in a bank which afterwards became insolvent, was deposited with another bank as collateral security for a debt due it; upon declaration of a dividend by the assignee of the insolvent bank. Held: That it should be computed upon' the full amount of said certificate of deposit, notwithstanding that meanwhile the debt to which it had been pledged as collateral had been reduced, but not below the amount of such dividend, .

      Stearns, Chamberlain & Boyan, for plaintiff.

      Blandin, Bice (& Ginn, contra.
    TIenry, J.; Winch, J., and Marvin, J., concur.
   This action was brought by the Mutual Bank, a corporation organized under the laws of the state of Illinois, against the Cleveland Trust Company, as assignee in insolvency of the Euclid Avenue Trust Company, to require the allowance by said assignee of plaintiff’s claim against the insolvent’s estate.

The Assets Realization Company was subsequently given leave to become a party defendant, while this case was pending in the court of common pleas, and shows by its answer that it has, with the approval of the insolvency court, purchased all the assets of the insolvent’s estate for a sum equivalent to fifty per cent, of all claims that are or may be allowed in the settlement of the trust.

The grounds of defense alleged by the defendants respectively, will appear in the further statement of the case.

The facts, as shown in evidence, are substantially as follows:

Early in 1908 the Euclid Avenue Trust Company was called upon by the Cleveland Clearing House Association to meet certain demands imposed by said association, as a condition of its continuing to enjoy the privileges of the clearing house. To enable it to meet these demands, R. S. Thomas, the treasurer of the Euclid Avenue Trust Company, while in New York, issued to P. J. Keiran, a certificate of deposit, in words and figures as follows:

“$50,000.00 Cleveland, O., Feby. 21st, 1908.
P. J. Keiran has deposited with
The Euclid Avenue Trust Company, fifty thousand dollars, payable December 1st after date, in current funds to the order of himself, on the return of this certificate properly endorsed. . Interest 4% per annum.
“(Signed) R. S. Thomas,
“Treasurer.”
Said certificate of deposit is endorsed as follows:
“P. J. Keiran.”

On returning to Cleveland the treasurer informed his associates in the trust company of what he had done, and minuted the fact of issuance of the certificate in the trust company’s register of its certificates of deposit issued.

In co-operation with Mr. Keiran, the treasurer had made arrangements with Mr. Clifford Ladd, of New York, by which the latter had agreed to accept and pay a draft for $50,000 upon himself, in exchange for this certificate of deposit, and the certificate was given to Keiran to be delivered to Ladd on payment of said draft.

The arrangement with Ladd having fallen through, Keiran told Thomas that he could obtain the $50,000 in Chicago, whither he then took the certificate of deposit, requesting Thomas to wait his return in New York. Returning to New York, Keiran advised Thomas that he had negotiated the certificate with the Mutual Bank and that the money would be in Cleveland upon his arrival. Mr. Thomas thereupon went back to Cleveland and on the morning of March 16th received a letter from the Mutual Bank stating that the certificate of deposit had been offered to it as security for a loan, and requesting advices as to its regularity. To this letter Thomas replied on the same day assuring the Mutual Bank that the certificate would be paid by the trust company at maturity. Keiran had in fact negotiated the certificate with the Mutual Bank, which had already made a loan or loans on 'the security thereof and of other collateral, to the Benedictine Sisters, of Nauvoo, Illinois, and the proceeds of the loan, by reason of Keiran’s breach of trust, never reached the trust company. Except that the statutes of Illinois prohibit corporations of the class to which the Mutual Bank belonged from making any loans in excess of ten per cent, of their paid-up capital, the limit, thus fixed, being in the case of the Mutual Bank, $25,000, the loan which it made upon this certificate was negotiated in the regular and usual course of business. The loan' was .evidenced by three notes, executed by Keiran and others, who furnished the collateral, and directed the amount of the loan to be credited to the Benedictine Sisters. Before the fraud was discovered the amount so credited had all been drawn out and the notes renewed, upon the assurance, as aforesaid, that the certificate of deposit would be paid at maturity. Since then the makers, other than Keiran, have paid $25,000 of the loan, leaving an equal amount unpaid; as security for the payment of which the Mutual Bank still holds the original collateral, including the certificate of deposit for $50,000. It now seeks to have the certificate of deposit allowed at its face by the assignee of the Euclid Avenue Trust Company. If this is done, it will receive by way of the fifty per cent, dividend payable to all the creditors of the Euclid Avenue Trust Company, an amount almost exactly equivalent to the total amount of the remaining debt secured by said certificate.

The defendants, however, insist that the loan having been made in violation of the Illinois statute, the collateral pledged as security therefor can not be enforced, in view especially of the fact that the certificate was issued wholly without consideration by and negotiated in fraud of, the Euclid Avenue Trust Company; and they further urge that even if the claim should be allowed, there should first be deducted therefrom, under authority of Bank v. Esterly, 69 Ohio St., 24, the amount already paid upon the loan.

Regarding the-first of these defenses, it must be observed that the Mutual Bank can not be affected by Keiran’s fraud. He was authorized by the Euclid Avenue Trust Company to negotiate the certificate,, and his fraud consisted only in the misapplication of the proceeds. The circumstances under which the loan was negotiated are not such as to charge the Mutual Bank with any notice of, or responsibility for, Keiran’s subsequent conduct. If the loan was ultra vires, the settled law in this country is that no advantage thereof can be taken by the debtor. Whatever the form of action or theory of recovery in different jurisdictions may be, the fact remains that this certificate secures the debt and is likewise enforceable. Bank v. Mathews, 98 U. S., 621.

Concerning the other defense founded upon the rule of The State National Bank v. Esterly, supra, and upon General Code, Sections 11134 and 11141, it should be noted that the construction and application of this decision a^nd these statutes as here invoked, would always defeat the very purpose in view when an ample margin of security has been exacted for a loan and where, to meet an unpaid balance thereof, resort to the security is had after its value is impaired by insolvency. We do not so interpret the statutes in question nor so apply the Esterly case.

The syllabus of that decision is as follows:

“When the property of an insolvent debtor, by order of court, is placed in the hands of a receiver to. be administered upon for the payment of the insolvent’s debts, a creditor who holds col-laterals taken as security for his claim, and upon which he has realized before a dividend is declared, is entitled to a dividend on only so much of his debt as remains after deducting the proceeds of the collaterals, and this sum may be ascertained at the time the dividend is declared, although the claim had formerly been proven and allowed for the full amount. ’ ’

Here it is not a residue of the principal debt which is sought to be enforced against an insolvent debtor. The purpose here is rather to subject to the payment of the residue of the principal debt the collateral pledged as security therefor. No reason appears why the stipulated margin of security, depreciated as it is, should now be wiped out because a part of the original debt has been paid. The plaintiff’s claim, -we hold, should be allowed at its face, and on distribution it should be paid in the same proportion that the other claims are paid, not exceeding the debt secured. The appeal of the Assets Realization Company will be consolidated with that of the Cleveland Trust Company and judgment rendered as in the court below. In this form of action the judgment can not ordinarily embrace other matters than the allowance; and we make no order concerning interest or the equities, if any, arising from the fact that other collateral was also pledged for this debt.


text:
    VARIANCE BETWEEN JUDGMENT AND ISSUES RAISED.
    Circuit Court of Cuyahoga County.
    Mike C. Ancin et al v. John Ksenick et al.
    Decided, February 14, 1911.

      Judgment Not Warranted l)y Pleadings.

    A judgment not in accordance witii the allegations of the pleadings, the issues therein raised, or the prayers therein contained, will be reversed and the cause remanded for a new trial.

      Eli E. Dosier and Lindley Eogg, for plaintiff in error.

      Palda <& Svaro, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   The parties to this proceeding in error stand here in the relation opposite to that in which they stood below. There Esenick and wife commenced their action against Ancin and others to recover damages for removal of lateral support. The plaintiffs alleged that they own part of sub-lot 65 in William Slade Jr’s, allotment of part of original Brooklyn township lot 87, fronting on West Seventh street, in the city of Cleveland, and that the defendants own a contiguous part of sub-lot 62 in the same allotment; so that the line between their properties is the common boundary line of said sub-lots.

The answer and cross-petition admits “that plaintiffs and defendants are owners of certain property on West Seventh street, Cleveland, Ohio, substantially as stated in petition of plaintiffs,” and allege that plaintiffs’ building enroach upon defendants’ property. The reply denies such encroachment. The court below found for the plaintiffs upon both issues, awarding them damages for the removal of lateral support, and holding that their buildings do not encroach upon the defendants’ land.

But these conclusions are obviously predicated and dependent, in part at least, upon the court’s further finding “that the northerly boundary of plaintiffs’ premises, as fixed by occupation for the statutory period,” is not coincident with the boundary line between said sub-lots, and falls within the limits of sub-lot 62, to which the defendants seem to have the paper title. This finding is utterly at variance with the allegations of the petition and the admission of the answer to the effect ■ that the common boundary line of the two-sublots is also, the ■boundary line of the two properties. Nor is there anything in the averments or the prayer of the pleading of either party to ■ warrant such a judgment. It is quite possible that the evidence would sustain a judgment of this sort, if it could properly be rendered upon the issues tendered by the pleadings. If the* plaintiff claimed such ownership by adverse possession of any land in lot 62, he should have alleged the facts in support of his claim and permit issue to be joined thereon. As the pleadings stand the judgment in this behalf is not only not responsive to any issue joined, but is irreconcilably repugnant to the facts as averred in the pleadings. The judgment thus contrary to law, is reversed, and the parties may, if they so please join issue on this matter and try their ease accordingly in the court of common pleas where the cause is remanded.


text:
    ACTION FOR. CARE OF THE HELPLESS WIFE OF ONE MENTALLY INCOMPETENT.
    Court of Appeals for Wayne County.
    Perry F. Badger and Ira Badger, as Administrators with the Will Annexed of Michael Badger, Deceased, v. Maud V. Orr.
    Decided, March, 1913.

      Limitation of Actions Against Administrators — E¶ect of the Revolting of the Letters Testamentary — Action May he Maintained hy a Married Woman in Her Own Name for Services Rendered in Her Own Household, When — Liability of Estate of an Insane Husband for Necessaries for His Wife Not Contracted for hy His Guardian— Section 10753.
    1. Where the appointment of an administrator is revoked by the probate court, but on appeal the administrator is restored to his ■ office and duties, the period during' which he was suspended from his office is to be deducted in fixing the two years limitation for the bringing of an action against him as such administrator.
    2. A married woman living with her husband may maintain an action in her own name for services in giving special care and attention to an invalid for whose board and lodging in their home her husband has already received compensation.
    3. The liability of a husband for necessaries or care furnished to his wife is not affected by the fact that he is insane or mentally incompetent to transact business, -and an action for recovery for services or necessaries so furnished may be maintained against the administrator of such husband notwithstanding the indebtedness was incurred during the lifetime of the husband and was not approved by his guardian.
    Error to the Court of Common Pleas of Wayne County, Ohio.
    The plaintiff’s cause of action in the court below was founded upon a promise for the payment for services rendered by the plaintiff for the said Keziah Badger, at the request off Michael Badger, her husbaind, from April, 1906, until January, 1909. The claim was presented, duly verified, to the administrators, March 14, 1911, and was rejected March 25th, 1911. Suit was commenced in the court of common pleas June 21st, 1911.

      On September 1st, 1911, the defendants filed an amended answer setting np four defenses. For a first defense the defendants admit that they are the administrators with the will annexed of Michael Badger, deceased, but they do not allege when they were appointed such administrators nor is the date of their appointment alleged in the petition. In this defense it is alleged that the claim of the plaintiff was rejected on the 25th day of March, 1911. It does not appear on the face of the answer in this defense that the claim is barred either by the six months statute or by the two years statute, the limitations for bringing suits against the administrators of an estate of two years after their appointment and giving notice.
    In the second defense the defendants allege that more than two years next before the commencement of this suit, to-wit, on the fifth day of March, 1909, defendants were, by the probate court of said county, duly appointed and qualified as administrators with the will annexed of said Michael Badger, deceased, at which time they gave bond as administrators, and after-wards, within three months after the giving of said bond, they caused notice of their appointment to be published in a newspaper of general circulation in said county for three consecutive weeks. It is further alleged in said second defense that Michael Badger died January 10th, 1909, and that the plaintiff’s cause of action, if it ever did accrue, accrued prior to the said 5th day of March, 1909.
    For a third defense,, defendants aver that during the period of thirty-two months from April, 1906, to January, 1909, said Michael Badger was incapable of transacting any business on account of his weak mental condition and during said time was an imbecile and did not.have mental capacity to transact any business and make any contracts, that during the time from May, 1906, to the time of his decease he was under guardianship and had a guardian of his person and estate, which guardian was duly appointed by the probate court of said county and such guardian transacted all business for said Michael Badger, all of which was known to the plaintiff, and said guardian took care and charge of and provided for all the wants and necessaries of said Keziah Badger.

      For a fourth defense, defendants deny that the plaintiff performed services and work to the extent and amount and of the kind and value mentioned in the petition, and aver that whatever services were rendered and work performed for said Keziah Badger, by plaintiff, during the time mentioned in said petition was rendered and performed by said plaintiff at the special instance and request of the guardian of Michael Badger, who was the guardian of the person and estate' of said Michael Badger during said period; which services- and work was performed by said plaintiff under and by virtue of a contract wifh said guardian; for all of which services and work rendered by said plaintiff for said Keziah Badger full payment has been made by said guardian to the plaintiff, and nothing whatever is now due said plaintiff from said defendants for any service or work performed for said Keziah Badger.
    Defendants further say that during the period from April, 1906, to January, 1909, said plaintiff was married and was-living with her husband, Willis H. Orr, and said plaintiff and her said husband constituted the family at whose home the services were rendered and work performed for said Keziah Badger by plaintiff and that whenever payment was made to said plaintiff by said guardian for such work and services as above mentioned, receipts were given by said plaintiff as evidence of full payment for services mentioned in said receipts, but, in giving such receipts, plaintiff signed her said husband’s name, which receipts of payment of all services and work performed by said plaintiff for the full-satisfaction of said plaintiff.
    To this amended answer the plaintiff files- reply to the second defense, in which she admits that the defendants were appointed and qualified as administrators of the estate of Michael Badger, and gave bond as such administrators and caused notice of such appointment to be published as alleged in said amended answer. She admits that Michael Badger died on the 10th day of January, 1909; but the plaintiff says that the appointment of such administrators was revoked by the Probate Court of Wayne County, on August 19, 1909, and Corwin D. Swan was by said court duly appointed and qualified as special administrator of said estate and acted as such from said date until the 19th day of February, 1910, when he was removed and the defendants were reappointed as administrators with the will annexed of said estate.
    For reply to the third defense, plaintiff says said Michael Badger, before said adjudication of imbecility and the appointment of said guardian, brought the said Keziah Badger to the home of Willis Ii. Orr, husband of the plaintiff; that the said Keziah Badger was a paralytic and was in a helpless condition. She remained in the home of said Willis H. Orr until after the death of the said Michael Badger. Plaintiff further says that the services so rendered by the plaintiff were necessary for the care, well-being and comfort of the said Keziah Badger and were not a part of, but were additional, to her household duties as the wife of Willis H. Orr. The guardian had full knowledge of the character of the services and that they were being rendered by the plaintiff and said guardian never paid the plaintiff for said services.
    For reply to the fourth defense plaintiff says that the services she rendered for the said Keziah Badger were not included in any contract with said guardian for which full payment has been made the plaintiff. She denies that any payment Was made to her for any of said services, and she denies that any receipts were given by her to said guardian for said services or that any receipts given by her under her husband’s name were intended to be, or in fact were, payments in full for said services or in satisfaction thereof, or that she ever gave said guardian the receipts therefor.
    The ease was tried to a jury upon issues made up by the petition, the amended answer, and the reply to the amended answer, as shown above, resulting in a verdict in favor of the plaintiff for $1,178.38. The motion for a new trial was filed and upon consideration thereof the court directed a remittitur of all in excess of $700, otherwise a new trial would be granted. Ten days were given for the plaintiff to determine as to the remittitur, which was consented to, and the judgment entered accordingly.

      Error is prosecuted to this court by Perry F. Badger and Ira Badger, administrators with the will annexed of Michael Badger, deceased, as plaintiff in error vs Maud Y. Orr, defendant in error.
    Yoori-iees, J.; Shields, J., and Marriott, J., concur.
   Seventeen grounds of error are set forth in the petition in error as reasons for the reversal of the judgment. All the grounds of error set forth in the petition in error are not urged upon our consideration in presenting the case, but several of the grounds are insisted upon as reasons for a reversal of the judgment. One of the principal grounds relied upon by the plaintiffs in error is that the action of the. plaintiff below, the defendant in error, was barred by the statute of limitations as to time of bringing suit against administrators, namely within two years from the time of the appointment of said administrators and the giving of bond by said administrators.

Section 10746, General Oode of Ohio, among other things, provides:

“That no executor or administrator shall be held to answer to suit of any creditor of the deceased, unless it be commenced within eighteen months from the time of his giving bond except as hereinafter provided. A creditor whose cause of action accrues after the expiration of eighteen months from the time the executor or administrator gave bond, according to law, and before such estate is fully administered, may begin and prosecute such action within six months after the accruing of such cause and before the estate is fully administered. No cause of action against an executor or administrator shall be barred by lapse of time until the expiration of six months from the time it accrued.”

It is contended in this case that the plaintiffs in error were appointed administrators with the will annexed of Michael Badger, deceased, on March 5, 1909, and gave their bond and notice of their appointment within three months of the time of their appointment. On the 14th day of March, l9ll, the claim of the defendant in error was presented, duly verified, for an allowance, and on the 25th day of March, 1911, the claim was rejected by said administrators and tbeir rejection thereof endorsed thereon. As we have seen, on the 21st day of June, 1911, suit was brought by the defendant in error against said administrators. It is contended by the defendant in error that this statute of limitations does not control in this case.

The plaintiffs in error were appointed administrators with the will annexed of Michael Badger, deceased, but the appointment of such administrators was revoked by the probate court of said county on August 19th, 1909, and one Corwin D. Swan was, by said court, duly appointed and qualified as special administrator of said estate and acted as such from said date until the 19th day of February, 1910, when he was removed and the plaintiffs in error were reappointed, as administrators with the will annexed of said estate, and it is contended by the plaintiffs in error that the proceedings in the probate court for the removal and revoking of the appointment of said administrators upon -the appeal of the cause to the court of common pleas, only suspended the office of administrator so held by them and upon the reappointment of said administrators by the court of common pleas, they were restored to their office and duties as such administrators, and that during the interim between the time of the removal and the reappointment, the statute of limitations, requiring the presenting of claims against the estate to the administrator, was not suspended but remained in full force.

We can not agree with this contention or construction of the statute, but rather think that Section 10753, General Code, does control, which provides that “when an executor or administrator dies, resigns, is removed or his letters are revoked or his powers have ceased, without having fully administered the goods and estate of the deceased, and a new administrator of the same estate is appointed, the time allowed to the creditors for bringing their action shall be enlarged as follows, to so much of the eighteen months provided for the limitation of the action as expired while the former executor or administrator continued in office, must be added so much time after the appointment of the new administrator as will make two years in all.”

According to this statute the time intervening between the revoking of the letters of administration and the removal of said administrators from office by the probate court and their subsequent reappointment by the court of common pleas would be deducted from the time allowed by the statute of limitations for bringing suit. That is to say, that the plaintiffs in error were appointed March 5th, 1909, and duly qualified as such administrators, but the probate court on August 19th, 1909, revoked said appointment and removed said administrators from their said office and appointed a special administrator. Upon appeal of the case to the court of common pleas, that<court on the 19th day of February, 1910, removed said special administrator and reappointed said plaintiffs in error. Now, adding the time they had served before their removal (which is five months and fourteen days) to the time they served after their reappointment, and before the bringing of this action, and adding thereto the time of suspension between their removal and the time of the reappointment, the period of time elapsing would be two years and nine days; but, deducting the nineteen days of suspension, the action was brought within the two years allowed by Section 10753, General Code. And therefore, the contention of the plaintiffs in error is not sustained as to the time of bringing the action.

It is also contended by plaintiffs in error that the plaintiff below, being a married woman, living with her husband, at whose home the services were rendered and the work performed for said Keziah Badger,, can not maintain said action, and they cite the case of Spayne v. King, 7 O. D., page 158, in support of this contention. But on the contrary, from the facts in this case it is very clear that the services rendered by the defendant in error in this case were not such services as are contemplated by the duties of a wife in the discharge of her domestic duties as wife and housekeeper, referred to in the case of Spayne v. King, supra, or in the authorities cited from New York, relating to the domestic relations of husband and wife. Therefore, we hold that the defendant in error was entitled to maintain this action in her own name, and that the facts disclosed in the record fully sustain her in her cause of action.

It is contended by the plaintiffs in error that at the time the alleged contract was made by Michael Badger with the defendant in error and her hnsband, that he, Michael Badger, was insane and mentally incompetent to transact any business. A husband is liable for necessaries furnished a wife although he may be insane or incompetent to transact ordinary business (Sections 7997 to 8003, General Code; Beach on Contracts, Section 1408, Clark on Contracts, 778). Therefore, the contention of the plaintiffs in error that Michael Badger was not liable for the support of his wife and for necessaries furnished her can not be sustained.

It is further contended by the plaintiffs in error that for the services rendered by the defendant in eftror she has been fully paid, and in support of this contention a number of receipts have been produced and are attached to the bill of exceptions as evidence of this contention. Upon an examination of the receipts themselves, they do not sustain this contention, and taken in connection with oral evidence that was properly introduced in the case in the way of explanation of the receipts, it is shown beyond all question that the contention of the plaintiffs in error that the defendant in error was paid for her services, for which this action was brought, is not sustained.

It is further contended, by the plaintiffs in error that the verdict of the jury in this case is not sustained by the evidence, but is manifestly contrary thereto. In this contention we do not agree with counsel, but on the contrary, after a careful examination of the record, we are unanimous in the opinion that the evidence supports the verdict of the jury and that there is no error in the finding of the jury as to the facts in favor of the defendant in error, in support of her claim. We have examined the records with a view of determining whether or not any of the alleged grounds of error set forth in plaintiff’s petition in error are well taken and we are unanimous in the opinion that they are not.

Therefore, we find no error in the record and the judgment, with the remittitur allowed, is affirmed, with costs, without penalty.


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    ASSESSMENT UNDER PETITION FOR IMPROVEMENT OF COUNTY ROAD.
    Circuit Court of Cuyahoga County.
    Samuel J. Gibbs v. The Board of Commissioners et al.
    Decided, February 14, 1911.

      Improvement of County Road — Discretion of Commissioners — Two Petitions Can Not he Consolidated.

    1. Proceedings under a petition to the county commissioners “to improve said portion of said road by grading, draining and macadamizing the same for a width of sixteen feet, or by such other method, or with such other materials named in the statute hereinafter referred to, at a cost not to exceed $12,000 per mile, as your honorable board shall deem best,” petitioners agreeing that 25 per cent, of the cost and expense may be assessed against them, will not be enjoined though the improvement is made half again as wide, nearly twice as costly and 40 per cent, assessment is levied against the petitioners.
    2. Two separate petitions for the improvement of different sections of a state or county road, can not be consolidated by the county commissioners and heard as one for a single improvement, where there is nothing to indicate that they were so intended by the petitioners.

      Thompson Hiñe, H. J. Doolittle and J. A. Ford, for plaintiff in error.

      Walter D. Meals and John A. Gime, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   This action tried here on appeal was commenced by an abutter upon that part of the Kinsman road, which extends from the easterly limits of the city of Cleveland to the center of Warrens-ville township, to enjoin the. unpaid installments of an assessment levied on all the lands abutting on said portion of Kinsman road to pay for its improvement. The improvement as made was half again as wide and nearly as costly as that petitioned for, and forty per cent, of its cost was assessed upon adjoining property instead of only twenty-five per cent, as prayed for. Though some attempt is made to reconcile the width of the improvement with the width as petitioned for, it is evident that it is not the sixteen feet asked for, bnt less or more than that width, according to the view to be adopted as to what the improvement properly includes.

The filing of a petition by abutting land owners is of course jurisdictional, as the first step in proceedings by county commissioners to improve a state or county road, under the act “to supplement Sections 2824 and 4637 of the Revised Statutes of Ohio.” 94 Ohio Laws, 364; 95 Id, 535.

The plaintiff here insists that the petitioners for this improvement imposed conditions as to its width and cost and the per cent, to be assessed, and that these conditions are likewise jurisdictional as limitations upon the authority of the commissioners. The petitioners prayed the commissioners “to improve said portion of said road, by grading, draining and macadamizing the same for a width of sixteen feet or by such other method or with such other materials named in the statute hereinafter referred to, at a cost not to exceed $12,000 per mile, as your honorable board shall deem best. Said petitioners hereby agreeing that your honorable board shall 'assess one-fourth of the cost and expense of such improvement upon the land abutting upon said road within the above named limits,” etc.

In Wamelink v. City of Cleveland, 40 Ohio St., 381, somewhat similar language contained in two petitions for the' improvement of a part of Woodland avenue in said city was construed by the court. One petition prayed to have the roadway of said avenue paved with eight feet of stone on each side and twenty-four feet of wood between the stone; and the other prayed that the same portion of the same avenue “be paved with not less than thirty-two feet wood center treated with the Thilmany process, and balance stone, because it is very probable that a street railroad track will be laid in said avenue, and in that ease a less width of wood center, would destroy the driving on wood, as illustrated on Superior street above Erie street.” The improvement was made as prayed in the first petition; but jurisdiction to make the improvement was asquired only by counting both sets of petitioners.

In considering Wamelinb’s claim that not enough had petitioned for the improvement, as made, to authorize the assessment therefor to be levied, the court, by Dickman, J., said at page 385:

“It is contended, in behalf of the plaintiffs in error, that the minority petition was coupled with an indispensable condition, that the pavement should be laid with the designated material in certain quantities, and not otherwise. We do not so understand the language or intention of the petitioners. The gist of their petition was, that stone and wood treated with the Thilmany process should be used in paving the avenue; and the petitioners indicated a preference for a pavement with ‘not less than thirty-two feet wood center.’ But they certainly did not, either expressly or by implication, design to convey the impression, that if their preference was not followed, they desired to be no longer regarded in the light of petitioners for a wood and stone pavement of any kind. Their language was addressed to the council rather by way of suggestion than as a condition, as is manifest from their endeavor to enforce their choice by the argument, that a street railroad track would probably be laid in the avenue, and in that case, the effect of a less width of wood center than thirty-two feet, would be to destory the driving on the wooden part of the road way. The effort to thus lead the judgment of the council was a virtual acknowledgment, to determine between the two methods respectively asked for by the signers of the majority and minority petitioners. ’ ’

The language of the petition in the case before us is of the same character, embracing recommendations, rather than conditions, concerning the width and cost of the improvement and the percentage of the cost to be assessed.

There is, however, as suggested during the argument, a grave defect in the proeeedings; that is not distinctly raised by the pleadings. The right to make this improvement and to levy the assessment therefor is predicated upon two petitions for the improvement respectively of two sections of the Kinsman road. One covers the portion extending from the easterly limit of the city of Cleveland to the westerly limit of Warrensville township. The other covers the portion extending from the westerly limit of Warrensville to the center of said township. Neither petition contains any reference to the other or any suggestion that the improvement prayed for is to connect with or Pecóme a part of any other or larger improvement. The record of the commissioners’ proceedings fails to show that the two petitions were considered jointly or that they were formally consolidated. They appear to have been tacitly treated as constituting but one petition. The proceedings from time to time are sometimes entitled “In re the petition of Thomas C. Skinner and others,” and sometimes “In re the petition of Charles Palmer and others.” A parenthetical comment in the transcript of the commissioners ’ record, which is in evidence here, reads as follows: “Note: The Skinner petition and the Palmer petition'are the same.” In fact they are different petitions, and for different improvements; but they were together treated as one petition for one continuous improvement. We find no authority in the statutes for this procedure. Manifestly it might entail the most inequitable results. • If the improvement of one of these sections of the Kinsman road were proportionately more expensive than the improvement of the other, by reason of inequalities in the nature and levels of the ground, or otherwise, an assessment for the cost of both sections levied either according to frontage or benefits upon the lands abutting thereon, will be more burdensome to some abutters' than if the improvement for which they are assessed had been confined to their own section of the road, according to the petition filed therefor.

In other words, the commissioners were without authority thus to combine the two improvements and to confuse the burdens of the two sets of abutters. The plaintiff may therefore take leave to amend his petition so as to allege these facts distinctly, and take a decree enjoining the collection of the installments of said assessment that are still unpaid.


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    PAROL EVIDENCE SHOWING FOR. WHOSE BENEFIT PROMISSORY NOTE WAS MADE.
    Court of Appeals of Hamilton County.
    In the Matter of the Liquidation of the Metropolitan Bank & Trust Company.
    Decided, July 12, 1913.

      Promissory Notes — Competency of Evidence Showing for Whose Benefit Note was Made — Technical Defense to Note Held Insufficient.

    Where á bank borrows money on a note signed by some of its officers and others signing individually, and the defense is set Up in an action on the note by the State Bank Examiner who has been called upon to liquidate the bank that the claim should not be charged against the bank for the reason that the name of the bank does not appear on the note, the minutes of the directors meeting which authorized the loan, and parol testimony as to the identity of “H. H. Friend, Cashier,” one of the signers of the note, become competent evidence with reference to the purpose in executing the note and the object for which it was used.

      Robert A. Black, resisting the claim.

      Peck, Shaffer & Peck, for claim.
    Jones, E. H., J.; Swing, J., and Jones, O. B., J., concur.
   This cause comes to this court on appeal from the common pleas court upon a judgment entered in favor of the Second National Bank ,of Cincinnati, Ohio, on its intervening petition. Said intervening petition states that said bank is the owner and holder of a certain promissory note, setting out a copy thereof, signed as follows:

"Chas. Herbert Jones, Leslie Webb, John A. Ringgold, H. H. Friend, cashier, T. F. McClure, trustee, T. F. McClure, C. W. Bruns, John J.'Bruce.”

There are twelve endorsements showing interest paid upon said note, which interest the evidence shows was paid by the Metropolitan Bank. The intervening petition then proceeds as follows:

“This intervenor says that on or about the 29th day of August, 1908, the Metropolitan Bank & Trust Company desired to borrow from the Second National Bank of Cincinnati, the sum of $20,000 and presented .to said Second National Bank the note above set forth as its note. That this applicant received said note as the note of the said Metropolitan Bank & Trust Company, and paid to said company said sum of $20,000. That said company has paid the interest on said note at the times shown by the endorsements thereon.”

The petition then states that said Metropolitan Bank is now in liquidation; that upon a certain date the applicant presented to the superintendent of banks a duly authenticated and verified statement of sgid claim, and asked that said claim be allowed as a valid claim against the Metropolitan Bank & Trust Company; and that the same was rejected: The petitioner then prays that the court “may adjudge said claim to be a valid claim against the Metropolitan Bank & Trust Company, and order said Frank E. Baxiter as such superintendent of banks in charge of the assets of1 said company to allow the same as a valid claim, entitled to dividends from the assets of said company, and for all other relief proper in the premises. ’ ’

By agreement the cause was submitted to this court upon a transcript made of the testimony given in the court of common pleas. Objection is made to the admission of all the evidence contained in said transcript which tended to explain the official character of the signers of said note and their relation to the Metropolitan Bank & Trust Company, as well as to the minutes of the meetings of the directors of said bank showing authority for the borrowing of the $20,000 represented by the note in controversy. Counsel for the state banking department in resisting the allowance of this note and in support of his objection to said evidence argued with great force and ability that the note speaks for itself; that under our negotiable instrument laws no one can be held liable-upon a note as maker whose name does not 'appear thereon. For this reason he claims all extraneous evidence to be inadmissible and irrelevant, and argues that inasmuch as the name of the Metropolitan Bank does not appear upon said note, it can not be held liable,

We are not inclined to think that the court would be justified in excluding the evidence objected to. The intervening petition alleges and the notes show that one of the signatures thereon was that of “H. II. Friend, Cashier”; another signature is that of ‘ ‘ T. F. McClure, Trustee”; the remaining signatures seemed to be individual signatures. We are' of opinion that the signature of Mr. Friend as cashier may be explained by parol evidence; and that the minutes of the directors’ meetings may be offered for that purpose^ Upon that ground, therefore, a great deal of the evidence objected to becomes admissible.

Again, this is not an action at law. There is no prayer for a money judgment and the case is not one triable by jury. If it were, there would be no right to appeal. Under the allegation of the petition that the Metropolitan Bank desired to borrow from the Second National Bank this sum of money, and that said bank did borrow said sum and paid the interest thereon, -and that the Second National Bank took said note as the note of said Metropolitan Bank & Trust Company, and the same being proper averments, we are of the opinion that the evidence was properly received below, and should be considered here. Having so ruled, there is but one conclusion to be reached from this evidence, and that is the conclusion reached by the court below when passing upon it; the evidence shows clearly that the proper officers of the Metropolitan Bank authorized the borrowing of this sum of money from the Second National Bank; that the note given the latter bank was intended as an obligation of the Metropolitan Bank; and that whether it was so intended or not the money, as the petition avers, was received from the Second National Bank by the Metropolitan Bank, placed with its fund and used by it. The defense interposed to the allowance of this claim is therefore a purely technical one. The obligation was recognized over and over again by the payment of the twelve installments of interest.

Upon the evidence therefore we think the claim must be allowed, and the prayer of the intervenor will be granted.


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    ARBITRATION BETWEEN LANDLORD AND TENANT.
    Circuit Court of Cuyahoga County.
    The Caldwell Piano Company v. The Garfield Realty Company.
    Decided, February 14, 1911.

      Arbitration — Immaterial Variations From Submission.

    An award of arbitrators will not be considered void because not final or responsive to the submission, if all the items in dispute between the parties are embraced in it, with only a few immaterial exceptions, and a time is fixed by the arbitrators for the completion 1 of everything directed by them to be done.

      H. W. Bell and Eorr & Lowenthal, for plaintiff in error.

      B. E. McKisson, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   This action tried in this court upon appeal from the court of common pleas was there commenced by the Caldwell Piano Company, as lessee, against the Garfield Realty Company, as lessor, for an accounting and injunction.

The plaintiff leased from the defendant the corner store room in the defendant’s block, the Anisfield, located at the corner of East Ninth street and Huron road in the city of Cleveland, for a term of years commencing May 1, 1910. At that date and for some time afterwards the building in question was still unfinished, and on July 12, 1910, the parties entered into a written contract by which the landlord agreed to perform certain items of work, so as to fit the premises for occupation by July 15th, 1910; failing which, the sum of $41 per day was to be forfeited by the landlord to the tenant for each day that the work should remain uncompleted after said date. The landlord also agreed to pay three items of $100, $310 and $115, respectively, for specified extra work performed by the tenant in fitting up said store room. The landlord further agreed to remit all claims for rent up to August 1,1910, and to refund to the tenant the sum of $416.17 previously deposited by the tenant as a guaranty. The tenant agreed to pay rent from August 1, 1910, at the rate of $1,250 per month in advance. It was understood that the tenant might meanwhile enter into partial occupancy of the premises, and that its acceptance of keys to said storeroom should not constitute an acceptance under the lease, pending completion of the items of work to be done, a schedule of which was attached to the agreement.

On the following day the parties appointed H. C. Robinson and W. W. Davies “as referees to superintend and determine the manner of finishing the improvements under said agreement; also the amount of rebate, if any, to - be allowed under said agreement, and in all questions pertaining to the final adjustment of the lease now existing between” the parties. They, on their part, agreed to abide by the decision of these arbitrators.

Messrs. Robinson and Davies accepted this commission, and on August 5, 1910, rendered the following decision:

“In reference to the contract between the Garfield Realty Company and the Caldwell Piano Company, dated July 12, 1910, under the terms of which we are to act as arbitrators, it is our' conclusion as such arbitrators, that the interior of the premises in question became tenantable July 27*h, 1910, and therefore the Caldwell Piano Company is entitled to a rebate from the Garfield Realty Company of four hundred and ninety-two dollars ($492), (twelve days at $41 per day) as per the conditions of said contract.
“We also concluded that the Garfield Realty Company is obliged to make such connections to the heating system in said premises as are necessary in order to furnish the Caldwell Piano Company with heat throughout the entire year. It is also obligated to repair the sidewalk lights in such a manner that same will be free at all times from leakage of tar and water. This work of changing the heating system and repairing the sidewalk lights shall be done within a reasonable time after the demand of the Caldwell Piano Company.
“Our attention has been called to the unsafe condition of the glass store front facing East 9th street. It is our conclusion that this front ought to be put in a safe condition and at the expense of the Garfield Realty Company. The plans have been prepared by Mr. Wolf, architect .for the Caldwell Piano Company, showing how the front can be repaired to put same in a safe condition and at the same time strengthen the frame work of the front sufficiently to support an awning. These plans portraying the change have been O.K.d by Mr. Caldwell on behalf of the Caldwell Piano Company for the purpose of indicating to us that if the changes proposed, as set forth in the said plans, are made, the same will be satisfactory to the Caldweil Piano Company. We are also in receipt of a communication from John Anisfield, representing the Garfield Realty Company, authorizing us to employ Geo. A. Rutherford & Company to make said changes in accordance with said plans at his expense. As such ’ arbitrators we have authorized Rutherford & Company to make the proposed changes and have their agreement that said work will be completed on the evening of Tuesday, August 9th, 1910. We further conclude that if said work of changing said front is not completed on the evening of- Tuesday, August 9th, 1910, then the Caldwell Piano Company shall be entitled to a rebate from the Garfield Realty Company of twenty-five dollars ($25) per day for every day from and after said time that said alterations remain unfinished.”

Meanwhile, the tenant paid the August rent in advance, but because of delays in the completion of the work, which the arbitrators’ decision provided should thereafter be done, the tenant refused to pay the September rent and began this action. A preliminary restraining order was obtained to prevent the tenant’s dispossession for non-payment of the September rent, and since then the rent has been paid monthly into court, to await the conclusion of the litigation.

The. plaintiff claims that the award is void because it is not final, or responsive to the submission, in that it leaves two things open to future controversy, viz., the repair of the store front, so as to make it safe, and the repair of the sidewalk lights, and furthermore, in that it fixes July 27th, 1910, as the date when the premises become ‘‘tenantable,” and when, “therefore,” the forefeiture of $11 per day terminated.

From our examination of the evidence it appears that, .at the time of the award the' sidewalk lights had been so repaired that they no longer leaked, but the arbitrators were apprehensive that they might thereafter develop leaks, and deeming it their. duty to provide against this contingency, they decided that such repairs as might become necessary in this behalf should be promptly made at the expense of the landlord.

In regard to the East Ninth street front it appears that the submission contains no specific reference to this item of work to be done, but the safety of the glass front having been called in question, the opinion of an expert was sought and obtained by the arbitrators to the effect that it was- .probably not unsafe, but might properly, for the sake of due precaution, be further strengthened. ' At this juncture the question of providing some means of attaching awnings to the East Ninth street front arose for the first time, and thereupon the arbitrators sought and obtained the assent of their principals to an enlargement of the scope of their arbitration, so as to include this matter, and dispose of it in connection with the matter of the East Ninth street glass front. By consent of the principals, the arbitrators, as indicated in their award, employed George A. Rutherford & Company to perform the work in question, according to plans procured by the tenant and approved by the landlord.

This supplemental submission was partly oral and partly written, and we hold that the award is responsive thereto, notwithstanding the fact that the work was not fully completed at time the award was made.

Rutherford & Company were one day late in completing the work in the first instance, and the landlord admits a liability of $25 to the tenant on this account. The tenant, however, claims and shows that the work as thus completed, was not satisfactory, and that it was some two weeks more before it was left in workmanlike shape.

On the remaining question we hold that notwithstanding the use of the words ‘ ‘ tenantable July 27, 1910, ’ ’ by the arbitrators in their award, the evidence fails to show any items of work specified in the schedule attached to the original agreement of the parties which remained undone on that date, excepting the items already discussed and disposed of.

It follows that the provision of the submission in this behalf are fully responded to by the provisions' of the award that “the Caldwell Piano Company is entitled to a rebate from the Garfield Realty Company of four hundred and ninety-two dollars ($492), (twelve days at $41 per day) as per the conditions of said contract.”

This language embraces an adjudication of all the items in dispute between the parties with the immaterial exceptions hereinbefore mentioned.

We have examined the decree rendered in the court below and find it so exactly in accordance with our own views that we enter a similar judgment here.


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    THE BUILDING OF VIADUCTS BY COUNTY COMMISSIONERS.
    Circuit Court of Cuyahoga County.
    The State of Ohio, ex rel William Howells, a Tax-payer, v. W. F. Eirick et al, Commissioners of Cuyahoga County, Ohio, and John J. Fitzgerald et al, as the Board of Deputy State Supervisors.

    Decided, February 27, 1911.

      Roads — Authority of County Commissioners to Build Viaducts — Old Road Persists Although There is a New Route of Travel — Adequacy of an Existing Bridge — Appropriation by County Commissioners.

    1. Sections 2421 and 7557, General Code, authorize the county commis•sioners to erect high level bridges or viaducts in proper cases, on state and county roads, both within and without cities and villages.
    2. Any disused portion of the highway, if utterly abandoned, becomes vacated by operation of law, but the state or county road, as such, persists despite the new route of travel.
    3. Although a state or county road may, for a time, have been under the exclusive jurisdiction of a plank road company, and later, of municipal authorities, it continues to exist as a state or county road, within the intendment of General Code, Sections 2421 and 7557.
    4. Whether an existing bridge or viaduct on a state or county road is adequate for public travel, is a question for the discretion of the county commissioners.

      5. County commissioners have ample power to appropriate whatever property may he necessary as a site for a bridge, and to expend money in that behalf, without a vote of the electors, except as such authority may be required and given by the vote upon the question of erecting the bridge itself,

      William Howell and Burton & Bake, for plaintiff.

      Walter B. Meals and John A. Cline, contra.
    Henry, J.; Marvin, J., concurs; Winch, J., not participating.

       Affirmed without report, State, ex rel, v. EiricJo et al, 84 Ohio State, 503.

   This action, commenced in the court of common pleas and appealed to this court, is a tax-payer’s action -to enjoin the building by the county commissioners of Cuyahoga county of a county high level bridge over the Cuyahoga river upon the Cleveland Milan road between Detroit and Superior avenues in the city of Cleveland; said Cleveland Milan road being a state road, ’ ’ according to the language of the preliminary resolution adopted by the county commissioners July 13, 1910.

Pending this action the question of building such a bridge has been submitted to and approved by the electors of said county, as involving an expense far in excess of the statutory limitation of eighteen thousand dollars, making necessary such approval by the electors.

The amended and supplemental petition alleges “that the Cuyahoga river .valley at the point referred to in said resolution is about one-half mile in width, occupied by numerous streets of the city of Cleveland, railroad tracks and buildings, and that on either side of said valley the banks rise to a height of from 75 to 100 feet to the general level of. the land on either side of said valley; that the Cuyahoga river occupies a channel in said valley about 200 feet in width, and that said high level bridge is “to extend the entire distance across said river valley, and to be carried on arches or trestle work, so as to connect the level land at the top of the bank on either side of said valley, and to span the railroad tracks, public streets of the city of Cleveland, buildings, said river channel, and all intervening space between the banks of said river'valley, so as to connect Detroit avenue on the westerly bank of said valley with Superior avenue on the easterly bank, and form a practically level elevated roadway across said entire valley.”

The petition further alleges “that there is not at the place of said proposed structure any state or county road, free turnpike, improved road, abandoned turnpike, or plank road, and no such road in common use at or near the place of said proposed structure.” The petition also alleges, “That there is at the place aforesaid a viaduct spanning said river valley connecting Detroit and Superior avenues in the city of Cleveland and forming an elevated and level roadway about 50 or 60 feet in width and about one-half mile, in length, which viaduct was built and erected by the city of Cleveland about the year of 1874, at great expense,” etc.

The petition contains other allegations tending to show that the proposed high level bridge will so interfere with said existing viaduct as to constitute an unlawful invasion by the county commissioners of the exclusive jurisdiction of the city over the present route of travel; that the original county road in and as a part of which said high level bridge is proposed to be erected, has long since ceased to extend, if indeed it ever did extend, across the Cuyahoga river; that the existing viaduct affords a convenient route of travel, which has long been the exclusive route across said Cuyahoga river valley, and that the high level’bridge proposed to be erected departs not only from the existing, but also and more widely from the ancient route of travel, in such wise as to touch said route or routes only at the terminal of the proposed improvement, and there only approximately. Relator denies that the improvement is a bridge, properly so-called ; • denies that it is necessary, and denies that its location is on any county road of which the county commissioners have jurisdiction, or which is in common public use; all of which the answer puts in issue.

The county commissioners derive their authority, if any, in the premises, from General Code, Sections 2421 and 7557, as follows:

“Section 2421. The commissioners shall construct and keep in repair necessary bridges over streams and public canals on state and county roads, free turnpikes, improved roads, abandoned turnpikes and plank roads in common public use, except only such bridges as are wholly in cities and villages having by law the right to demand, and do demand and receive part of the bridge fund levied upon property therein. If they do not demand and receive a portion of the bridge tax, the commissioners shall construct and keep in repair all bridges in such cities and villages, the granting of the demand, made by any city or village for its portion of the bridge tax, shall be optional with the board of commissioners.
“Section 7557. The county commissioners shall cause to be constructed and kept in repair, as provided by law, all necessary bridges in villages and citizens not having the right to demand and receive a portion of the bridge fund levied upon property within such corporations, on all state and county roads, free turnpikes, improved roads, ,transferred and abandoned turnpikes and plankroads, which are of general and public utility, running into or through such village or city. ’ ’

The evidence, including the agreed statement of facts, shows that the Cleveland and Milan road was laid out in (1827, “beginning at the east end of Superior lane at the center thereof, in Cleveland, and running south 72 degrees west 14 chains 65 links to a post on the west bank of Cuyahoga river, bearing south 41 degrees east of the south corner of Alonzo Carter’s red house, and occupied by Joseph Mason, distant 90 links; thence south 57 degrees, west 1 chain 16 links; south 29 degrees west 13 chains 00 links; south 33 degrees 15 minutes W. 15 chains 50 links to the top of Cuyahoga Hill, ’ ’ and so on to Milan in Huron county. The map which is put in evidence to show the locations of the road thus laid out, of the existing viaduct, and of the proposed high level bridge, discloses that the termini of the proposed improvement are substantially within the limits of the original highway, but that the new structure, as a whole, will span the valley in an air line, and stand to the route of the ancient highway in the relation, roughly speaking, of the cord to the curve of an are. The existing viaduct runs at a somewhat lower level between the two.

Paragraphs 3 and 4 of the agreed statement of facts are as follows:

“(3). That Superior avenue is a public street of the city of Cleveland, with the westerly terminus at the east end of Water street in said city, and connects at said point with Superior lane, being the point of beginning of the Cleveland and Milan road, and as set forth in the report above referred to.
“ (4). That the Cleveland and Milan road above referred to, from Pearl street westerly to Rocky river, followed the line of what is now called Detroit avenue. That about 1848, the Rockport Plank Road Company was chartered under Ohio laws (46 Ohio Laws, 152). Said corporation duly organized and took possession of and constructed a plank road over said Detroit street from Pearl street as far west as Rocky river, a distance of five or six miles; and said plank road company erected and maintained toll gates thereon, and in 1869, the said limits of the city of Cleveland having been extended so as to embrace so much of said road as lies between Pearl street- and Gordon avenue, the said plank road company, by an agreement with the city of Cleveland, and in consideration of $900 paid by the city of Cleveland, executed and delivered to said city of Cleveland a conveyance of that portion of its road between Gordon avenue and Pearl street; a copy of said deed is hererto attached as Exhibit A.”

The first contention of the relator is that the proposed structure is not a bridge within the meaning of the sections above quoted, but is, in contradistinction thereto, a viaduct. It is pointed out that the Legislature has itself recognized this distinction in Section 10, of the municipal code, where the language “construct or repair viaducts, bridges and culverts,” is used. To the same point the ease of Board of Commissioners of Carroll County v. Bailey, 122 Ind., 46, is cited, the syllabus of which is as follows;

“A structure, or culvert, over a ravine, made by filling in the depression with earth and gravel, there being in the center under the highway an archway of stone masonary covered by a parapet, which was erected for the purpose merely of draining surface water off the public highway, is not a bridge, within the meaning of the statute, which requires the board of commissioners of each county to cause all the bridges therein to be kept in repair.
“The term ‘bridge,’ in its common law meaning, the sense employed by the statute, denotes a structure erected over a river, creek, pond, lake, or stream of water flowing in a channel, between banks more or less defined, although such channel may be occasionally dry, in order to facilitate public passage over the same.”

In the opinion of the court, at page 49, it is pointed out, however, that the Legislature of Indiana had in terms “restricted the authority of the county commissioners to the erection and repair of bridges over streams or water-courses,” and that no such stream or water-course existed in that case.

In the matter of Freeholders of Irondequqoit, 68 New York, 376, which is also cited, the first paragraph'of the syllabus discloses a similar basis of distinction, as follows :o

“The act of 1857 (Chap. 639 Laws of 1857) providing for the building and repairing of bridges over streams dividing adjoining towns, confers no authority as to bridges over bays, lakes or other bodies of water not ‘streams’ or as to causeways or bridges over marshes between two towns.”

There are, indeed, some authorities which seem somewhat to limit the broad meaning of the term bridge, but our own Legislature has often used the word in the widest sense; notably in acts providing for overhead bridges across the Mahoning river, considered in State, ex rel, v. Davis, 55 O. S., 15, though these acts were there held to be unconstitutional because they were special legislation. So, also, our Supreme Court has expressly declined to narrow the significance of the term, in Smith Bridge Co. v. Bowman, 41 Ohio St., 37, holding that a railroad bridge is within the meaning of the word as used in the mechanic’s lien statute. The dissenting opinion in that case is based upon an attempt to narrow the construction of the term. The word as defined in 1 Bouvier’s Law Dictionary, 265, is as follows:

“A bridge is a structure erected over a river, creek, stream, ditch, ravine or other place to facilitate the passage thereof, including by the term both arches and abutments.”

That the term “bridge” includes viaduct is expressly held in City of Argentine v. Atchison, T. & S. F. Railway Co., 55 Kansas, 730; State v. Inhabitants of Gorham, 37 Maine, 461; Whitelaw v. Freeholder of Gloucester County, 40 New Jersey Law, 302; Funk v. St. Paul City Railroad Co., 61 Minn., 435.

In State, ex rel, v. Commissioners, 49 Ohio State, 301, it was sought to mandamus the county commissioners of Hamilton county to erect a structure similar to the one proposed in the case at bar, under the authority of Section 4938, Revised Statutes, now General Code, Section 7557, above quoted, and though the court declined to interfere with the administrative discretion of the county commissioners, it is nowhere suggested in the opinion that the commissioners were without authority, under- this section, should they choose to avail themselves of it, to build the structure in question. We have, therefore, no doubt that the section of the General Code, above cited authorizes the construction of a high level bridge or viaduct in proper cases.

The relator contends secondly, that the power of the commissioners does not extend to building bridges within the limits of a city, upon which general power has been conferred for that purpose. But it is expressly held in Lewis et al v. Laying et al, 46 Ohio St., 663, that county commissioners have authority to improve a state, county, or township road, although the improvement embraces that part of the highway which lies within the limits of a municipal corporation. It is moreover distinctly intimated in City of Piqua v. Geist, a Minor, 59 Ohio St., 163, that the same rule applies to the creation of county bridges within the limits of municipalities.

Whatever ambiguity may have existed in the sections of the Revised Statutes corresponding to the sections’ of the General Code, above quoted, is here immaterial because the proceedings looked to the improvement now proposed have been taken since the present codification of the statutes came into force. It may be true that the exception embraced in General Code, Section 2421, namely, ‘ ‘ except only such bridges as are wholly in cities and villages having by law the right to demand and do demand and receive part of the bridge fund levied' upon property therein,” is deprived of its force because of the circumstances that the only laws providing for such division of funds are apparently special laws and therefore unconstitutional; yet the fact remains that the same section now expressly provides that, “If they do not demand and receive a portion of the bridge tax, the commissioners shall construct and keep in repair all bridges in such cities and villages,” which are otherwise within, their jurisdiction.

The relator further contends that, if the proposed structure is properly a bridge and the commissioners have authority to build in cities, “they can not build in the location decided upon, because there is no state road or other road in common public use on which to build it, and it is not necessary. ’ ’

The diversion of the route of travel over the lines of the original highway to the present viaduct have not operated a discontinuance of the county road as such. Any disused portion of the highway, if utterly abandoned, is no doubt vacated by operation of law; but the county road, as such, persists despite the new route of travel (Steubenville v. King, 23 Ohio St., 610; Silverthorne et al v. Parsons et al, 60 Ohio St., 331). It continues, in the language of the statutes, to be a road “in common public use, ” or “ of general public utility. ’ ’ Nor do we think the extinguishment of the county road is implied by the interest or action of the Rockport Plank Road Company either before or when it gave its deed to the city of Cleveland, September 4, 1869, and did thereby “absolutely dispose of, release and abandon to the said city for the purposes of a public street all of that part of the plank road of said company which lies within the limits of said city and all the right and title of the said company therein and thereunto.”

In Plank Road Co. v. King, 2 Ohio St., 419, it was held that:

“The interest of the public in such roads consisting of a perpetual easement in the land covered by them for all actual uses and purposes of public travel, may, at the discretion of the General Assembly, be transferred without any pecuniary equivalent, to a plank road company; such plank road still remaining a public highway, and subject to the’ same uses and purposes as before.”

Although this part of the Cleveland and Milan road was for a time under the exclusive jurisdiction of a plank road company, and although it has since been de facto under the exclusive jurisdiction of the city of Cleveland, the county road, within the meaning of the statutes here relied upon, continues to exist.

As to the necessity of the new bridge, we can not, as a matter of law say that the existing viaduct, which was deemed adequate at the time of its construction in 1874, and which still continues to be the main route of public travel upon this road, is now, after the lapse of more than-a third of a century, adequate and convenient to the use of the vastly increased population in the midst of which it is located. That question lies wholly within the discretion of the county commissioners, so long as that discretion is not abused. State, ex rel, v. Commissioners, 49 Ohio St., 301.

It is further contended that “the proposed structure, as located by the commissioners, is not on the Cleveland and Milan road, and no authority has been voted to expend the public funds for a site for a bridge there,, ’ ’ whatever may have been the meaning of Section 2825, Revised Statutes, that section was superseded, prior to the commencement of the proceedings of the commissioners for the proposed improvement, by Section 5628, General Code, which imposes no limitation upon the county commissioners in respect to levying a tax for a bridge site. The section does make a specific mention of sites for county buildings, but in connection with the building of county bridges the subject of sites is ignored. The county commissioners have ample power, under the statutes, to appropriate whatever property may be necessary for the purpose in question, and to expend money in that behalf, without a vote of the electors, except as such authority may be required and given by the vote upon the question of erecting a bridge itself, and the question of site is left by the Legislature incident to the main question of erecting the bridge.

As already mentioned, the agreed facts in this ease show that the termini of the proposed improvement are located substantially within the limits of the Cleveland and Milan road. That the roadway, as elevated above the valley by the proposed improvement, is not in a vertical line above the old roadway, is of no importance. The obvious and proper way to erect a high level bridge across a valley is to erect it in a straight line. This necessarily involves a departure from the circuitous roadway required for the descent to the bottom of the valley as the highway was originally surveyed. The same condition obtained with regard to the Rocky River bridge. Silverthorne et al v. Parsons et al, 60 Ohio St., 331,

We have examined all the points made by the plaintiff in argument and in his brief without finding any sufficient reason to enjoin the proposed improvement as being beyond the authority of the county commissioners to make, or as involving any such irregularity of procedure as to render the expenditure of money therefor illegal.

Our Brother Winch has refrained from participating in our deliberations, and the other members of the court have independently reached the conclusions thus indicated. He is a resident and property owner in a part of the city which will receive a material advantage from the proposed improvement, and he wishes it to be understood that his personal opinion has in no wise contributed to the conclusions reached.

The petition will be dismissed.