text:
    ASSESSMENT OF DAMAGES ON ACCOUNT OF CHANGE OF GRADE.
    Circuit Court of Lucas County.
    The City of Toledo v. Elizabeth K. Meinert.
    Decided, February 29, 1908.

      Municipal Corporations — Change of Grade of Street — Action by Abutting Owner for Recovery of Damages — Objection to Failure to Allege Filing of a Claim for Damages and the Delaying of Suit for —Required Time Thereafter — Evidence—Competency of Ordinance Repealing Previous Ordinance Establishing Grade — Charge of Court —Dncontradiated Facts Distinguished from Admitted Facts— Proper Test as Amount of Damage which May Be Recovered — Items Entering Into the Calculation — Sections 1536-214 and 1536-279.
    1. In an action against a municipality for damages on account of a change of grade, compliance with' the statutory requirement as to the filing of a claim for damages more than two weeks before the commencement of the suit is sufficiently shown, in the absence of direct evidence offered in chief, by testimony drawn out by the city, although introduced by the city for an entirely different purpose.
    2. In such a case evidence as to the value of the property before and after the change of grade was made, while not admissible on the theory that is affords a proper measure or damages, yet because of *he necessity of permitting such an inquiry to take a wide range, such evidence is not necessarily prejudicial where properly taken care'of in the charge to the jury.
    3. An ordinance, repealing a former ordinance establishing the grade of a street, is competent in an action for damages to abutting property on account of the change of grade, but such an'ordinance is not conclusive as to the liability of the city on account of such change of grade.
    4! Where the plaintiff testified that the improvements were made to conform to the grade originally established, and on cross-examination testified that she received this information from her father, it is prejudicial error not to withdraw the testimony so given from the jury.
    5. Failure on the part of the municipality to contradict allegations as to construction of the buildings to conform with the grade previously established and a subsequent change of the grade by .the municipality in sucli a manner as to impair the value of the improvements so made, does not amount to an admission of these facts by the municipality; and a charge to the jury which states that these facts were uncontroverted and had' been established, and that the sole question to be submitted to the jury was the amount of damage, if any, suffered by the plaintiff, is prejudicial error.
    6. In fixing the amount of damages to be awarded to an abutting owner on account of a change of grade, the test to be applied'is the effect of the change upon the value of the improvements and not of the property, but this does not mean that the damages awarded must be . limited to the expense of adjusting the improvements to the new grade.
    7. There can be no allowance made for damages to the lot in its natural state, unless an unreasonable grade has been established; but where improvements have been made in reliance upon a previously established grade, or if none has been established with reference to a grade which might be reasonably anticipated, allowance may be made for filling the lot up to the new level around the house, and also for the cost of such changes in the building as a prudent man would make in restoring it to as good condition with reference to the new grade as it was with respect to the old, adding thereto any diminution in the value of the building after restoration, 'or subtracting therefrom any increase in value after restoration, general benefits not considered, but special benefits may be deducted where in excess of the amount which the property owner will be compelled to pay for by way of assessments.

      Charles S. Norlhup, City Solicitor, and John P. Mantón, Assistant City Solicitor, for plaintiff in error.

      Marshall & Frazer, contra.
    Parker, J.; Wildman, J., and Kinkade, J., concur.
   Suit was brought in the court of common pleas by Elizabeth K. Meinert against the city of Toledo. The petition alleges that the plaintiff was the owner of certain lots on Woodruff avenue in the city; that on February 1st, 1859, the city duly established the grade of said East Woodruff avenue at all points between Canton street and Cherry street; and that plaintiff’s lots were between these points; that thereafter plaintiff erected certain buildings and other improvements upon said lots in accordance with the grade of said street so as aforesaid established, and this remained the grade of said street during the time of the making of said improvements and until the 13th day of June, 1904, when the city changed and re-established the grade of said East Woodruff avenue between Cherry street and Canton street, along and in front of plaintiff’s lots, much higher than the grade before established and in accordance with which said plaintiff had constructed her said improvements; that in pursuance of this new grade, the street was filled up with dirt in such manner as to leave a-bank of dirt and mud in front of her lots, about eight feet above the surface of the lots, and about eight feet above the grade of the street as established in 1859. She says that this resulted in great damage to her property, and.sets forth specifically that it injured the ingress to said lots and said property and the egress from said lots to said street so that the same have been rendered difficult and dangerous to plaintiff and others using said property, and that the*value of said lots has been greatly diminished in many other ways, through imperfect drainage and the situation of said lots, buildings and improvements far below the surface of said street. Then follows this averment to which I will give some attention:

‘‘ That said city of Toledo did, more than sixty days prior to the commencement of this action, at request of plaintiff, and after having due notice of the claims and demands of this plaintiff make a thorough investigation of the damages to the property of plaintiff, but has utterly failed to settle or adjust the same although plaintiff has been ready and willing at all times to receive compensation for her said damages, ’ ’

and she puts her damages at two thousand dollars.

The city answering admits certain allegations as to the location of her lots, as to her ownership thereof, as to the established grade in 1859 on East Woodruff avenue between Canton street and Cherry street, and “denies each and every allegation and part of allegation” in plaintiff’s petition which is not expressly admitted to be true. The city further says:

“Answering further, defendant says that on the 25th day of May, 1865, the common council of the city of Toledo, by ordinance duly passed, repealed and revoked the grade theretofore established on the 1st day of February, 1859, for said East Woodruff avenue between Allen street (now Canton street) and Cherry street, and that thereafter until the 13th day of June, 1904, there was no. established grade for said East Wood-ruff avenue between said points.”

The defendant admits the re-establishment of the grade between these points on the 13th day of June, 1904, and sets forth how the grade was fixed, that is tp say, the height above the datum line; it sets forth a resolution adopted by the council providing for the improvement of this street by filling it up to the grade; it says the plaintiff was duly served with a copy of said resolution, and that on or about the 28th day of September, 1904, and in and by said notice in writing, required 'plaintiff to file with the clerk of the council in writing her claims for whatsoever damages she might consider would be caused to her said lot by said improvement; and defendant further says that said plaintiff did not file with the clerk of council nor with this defendant within the time required by law for filing such claim, any claim for damages or injury to her said lot which might be caused by die making of said improvement, and said defendant proceeded to make said improvement in the manner hereinafter set out, relying upon plaintiff’s waiver of damages for injury that might be caused to her said lots from said improvements. Then there are averments as to further proceedings taken by the council to máke the improvement.

The trial resulted in a verdict and judgment in favor of the plaintiff for five hundred dollars and interest. A motion for a new trial was overruled; and error is prosecuted in this court and a number of things are complained of that we feel required to mention.

It is said by counsel for the city that when the trial was entered upon an objection was made to the admission of any evidence on the ground that the petition does not state a cause of action, the specific reason being that the petition does not state, as claimed by the city solicitor, that plaintiff filed her claim for damages and that she had delayed her suit for sixty days after filing such claim as required by Section 1536-279, R. S.

We entertain some doubts as to whether this question was presented, in time. It is a question, as we understand it, which must be presented at once, before any testimony is received. No material ‘testimony had been adduced before this motion was interposed; but the trial was begun and was proceeding; the record shows fully a page of examination of a witness before the motion was interposed. But waiving this question, we conclude that the paragraph which I have read, beginning with the words ‘‘ the said city of Toledo more than sixty days prior to the commencement of this action,” etc., is intended to and does meet this requirement of the statute sufficiently to make the petition good as against this motion. Perhaps, if a motion had been interposed in due time to require the plaintiff to make her petition definite and certain, something different in the way of averment would have been required. It may be that a more critical view should be required if a demurrer had been interposed before the parties had entered upon the trial. But as against this motion, no mere lack of proper regard for the art of pleading can be regarded — I mean the fact that it is not artistically stated in view of the rules of pleadings. The purpose of this averment seems to us to be apparent; we do not see how it could have been intended otherwise than as an averment to meet the requirements of this section.

There is another section of the statute (1536-214,’ R. S.), on the subject of filing claims for damages, that seems to have a different purpose in view, that is, to provide that unless the claim for damages is filed within two weeks after a certain notice, it shall be deemed waived; it amounts to a bar if it is not complied with; it is a notice under a kind of statute of limitations. Section 1536-279, R. S., is intended to give a municipality an opportunity to investigate, and if it pleases to settle the claim before it shall be subjected to suit and costs of suit, and therefore it is provided that no person shall commence a suit against the corporation upon his claim until he files it with the clerk of the corporation and ‘sixty days elapse thereafter, to enable the corporation to adjust the claim.

It is apparent that a compliance with Section 1536-279, might not or would not necessarily fulfill the requirements of Section 1536-214, In other words, Section 1536-279 might be complied with at the time of the filing of the claim for damages, and yet a claim might be filed and still prevent the bar provided for in Section 1536-214. But if the claim is filed in compliance with Section 1536-214, R. S., .that is to say, so as to meet its requirements, we can not see why that does not fully comply with the requirements of 1536-279, R. S., in so far as the filing of the claim is required. Then, of course, remains the other consideration whether the plaintiff has waited sixty days before bringing-suit upon the claim.

It is contended here on behalf of the city that this matter required by Section 1536-279 is not only averred in the petition, but that it is unnecessary for the plaintiff to prove it, as well as to aver it; and that she has failed to prove it.

At the close of the plaintiff’s case, a motion was made to withdraw the ease from the consideration of the jury. At the time the plaintiff closed her case in chief, she had not introduced any evidence in support of the allegation that she had filed this claim for damages, or in support of her other allegation, which may be adduced from this allegation I have mentioned, that she had delayed suit upon her claim for sixty days after she had filed it; but immediately upon entering upon its case, the city put the plaintiff upon the witness stand and she was inquired of whether she had filed a claim for her damages with the city, and it obtained from her the admission that she had filed such a claim. It seems that the city had tried to draw this out upon her .cross-examination but was prevented from doing this by the court; ■perhaps upon the ground that it was a part of the defense of the city that the city was attempting to enter upon prematurely. It is evident that the city by pleading the bar under Section 1536-214, R. S., that is to say, that plaintiff had not filed her claim within two weeks after having been served with notice, was undertaking to use this evidence as to the time she had filed her claim for one purpose, .that is in support of their plea in bar; but we think the evidence here served another purpose, it served the purpose of the plaintiff, for it showed the filing of the claim. The city did not sustain its plea in bar because it failed to show the service of the notice and a delay of- two weeks after the service of the notice; it only showed the fact that claims in writing were filed (and they were exhibited to plaintiff and identified as Exhibits 2 and 3) ; that these claims were filed on.October 12th, 1904, and that taken in connection with the file-mark upon the petition discloses that suit was begun April 3d, 1906, a matter of which, for the purposes of the trial, the court was bound to take judicial notice and a fact that the jury had a right to consider. Those two things tak§n together discloses the fact that the claim was filed and that suit was not begun upon it until sixty days after it was filed.

The city complains of error in the admission of evidence touching the value of the whole property before and- after the change of grade in 1904. We are of the opinion that evidence upon this subject is not admissible on the theory that this is the measure of damages; but a wide range must be permitted in the admission of evidence on this subject, especially upon cross-examination. The test of values, etc., may be made by many inquiries aside from those embodying the facts constituting the exact test in fixing the measure of damages. Perhaps the plaintiff, in chief, should not go into this matter as she did; but she seems to have been driven to this course by the objection of counsel on behalf of the city; and in view of this, we can not find that error or at least prejudicial error occurred in the admission of this evidence. The whole matter should be taken care of and we think was taken care of by the charge of the court when he came to give the jury the rules, to guide them in ascertaining and fixing the damages.

It has been seen that the city denied that the ordinance fixing the grade of East Woodruff avenue at this point adopted in 1859 remained in force until 1904; and besides, the city alleges affirmatively that this grade ordinance, in so far as it affected this part of the street, was repealed in 1866. The city, in support of this allegation undertook to introduce in evidence an ordinance passed by the council May 25th, 1866, and on objection of the plaintiff this ordinance was excluded.

It is urged by counsel for the defendant that in so far as it purports to abolish this grade at this point the council blundered; that it was a mistake; that it was never so intended; but we do not .see how we or the trial court can assume any such thing. The ordinance fixes the grade of East Woodruff avenue between Allen street and Adams, fixing the height of the grade above the datum line at all the street intersections at Union, Wakeman, Putnam, Territorial road and Adams street, and provides that the grade of the street between the above mentioned points shall be an inclined plane. Nothing is said in this part of the ordinance about the grade of East Yfoodruff between Allen or what is now known as Canton street and Cherry street; but Section 5 of the ordinance repeals certain ordinances theretofore passed to establish the grade of certain streets, including the ordinance of 1859 establishing the grade of streets and alleys in Woodruff’s Addition to Toledo, and by its plain language it seems to disestablish or repeal the ordinance establishing the grade of East Woodruff avenue, between Cherry street and Franklin avenue, which would cover the part of East Woodruff avenue between Canton street and Cherry street.

Now we are not prepared to say that this ordinance is conclusive evidence in favor of the city that the grade established by the ordinance of 1859 was then and thereafter to be disregarded by the city. We are of the opinion that under the authority of Nolte v. City of Cincinnati, 3 C. C., 503, such action might be taken by the city notwithstanding the repeal of this grade ordinance, as would make it liable for an actual change of grade; but it is entirely clear to us that this repealing ordinance is competent evidence on behalf of the city, and should have been admitted, and that it was prejudicial error upon the part of the court to refuse to admit it. It is for the jury to consider in connection with the fact that the grades at the intersections of Woodruff avenue with Cherry street and Canton street were not altered by this ordinance,'and that the grading between the different streets must be inclined planes; together with any work on this part of the street that might have been done or permitted By the city in the way of bringing the level of the street up to the level of the grade fixed by the ordinance of 1859, the setting of stakes for improvements, the fixing of curbs, or anything else that may have been done or shown to have been done by the city in addition to or in connection with the ordinance of 1866.

The plaintiff in the course of her testimony in answer to a question stated that the improvements upon these lots (which consisted of two dwelling-houses) were made to conform to the grade established by the ordinance of 1859, and upon cross-examination she said that she had this information from her father. A motion was made to withdraw her answer from the jury, which motion was overruled. It seems to us that her testimony upon this point was mere hearsay, and that the motion should have been sustained. If she meant to testify to the fact that the building conformed- to the actual grade of the street, rather than to the grade established by ordinance, that they were made to conform to the level of the grade -actually built upon the ground, this would be competent, provided she knew the fact and did not have it as mere matter of information from others. We think that in this the court committed error prejudicial to the city.

At the close of the evidence and the arguments, counsel on behalf of the city asked the court to charge four several propositions, which appear in the record and which are as follows:

Before the jury can find for the plaintiff in this case, it must appear by a preponderance of the evidence that the buildings -on the land described in the petition of plaintiff were erected or constructed to a grade previously fixed and established for such street by the city of Toledo, and that the City of Toledo, after such buildings had been erected, changed the grade of the street so as to impair or render less convenient the means of ingress to or egress from, such buildings.

Plaintiff is entitled to recover only for the injury to the means of ingress and egress from the improvements on the said lots, and if the jury find that plaintiff is entitled to recover damages from the defendant, under the instruction which I have just given, they will then consider the matter of damages. Plaintiff is entitled to recover only such sum of money as damages as she will be required, to expend to adjust the said improvements on her lots to the changed grade of the street.

Before plaintiff can recover in this action she must establish by a preponderance of the evidence the following facts, to-wit: That the buildings on her said lots were erected or placed thereon to the grade of said street which the city of Toledo had previously established; that the said city of Toledo changed such grade after the said buildings had been erected or placed on said lots, and that such change of grade of said street impaired or rendered less convenient the means of ingress to or egress from said buildings from said street. Plaintiff is required to show by competent evidence the cost of adjusting the improvements or buildings upon said lots to the changed grade, and plaintiff can recover in this action only such sum as would be required to make such means of ingress and egress to and from said buildings as convenient as it was prior to the change of the grade of the street.

If the jury should find from the evidence that plaintiff’s said property was worth as much immediately after the street was graded up to the grade established in 1904, as it was immediately before the grade of the street was changed, and that the change of the grade of the street caused no depreciation in the value of plaintiff’s property, then I say to you that your verdict should be for the defendant.

We think it entirely, clear that the court was not required to charge requests numbered 2, 3 or 4; not required to charge No. 2 because the plaintiff might be entitled to recover more than the mere expense of readjusting her improvements to the new grade; not required to give No. 3 for the same reason; not required to give No. 4, because the test there to be submitted was as to the effect upon the plaintiff’s property, whereas the court was confined to the matter or test of the effect upon the value of the improvements only, not to the whole property; and some of these requests seem to authorize the setting off of general benefits, which we think was not allowable.

The substance of the first request should have been given. It is calling the attention of the jury to the fact that there were certain issues of fact to be considered and resolved, both as to whether or not the buildings were erected or constructed to a grade previously fixed and established upon the street by the city of Toledo, and as to whether the grade was afterwards changed by the city of Toledo so as to impair the value of the improvements thus made.

We are not prepared to say that the court would be required to give this in the exact language submitted; but we call attention to it to emphasize another question made as to the charge given by the court, to show that counsel for the city had not waived any right arising under these issues of fact; that the city was not conceding that it had been established that the improvement had been made to conform to the grade established in 1859. Of this part of the charge the counsel for the city complains. I read it:

‘ ‘ It is admitted by the parties in the pleadings which they have filed in this case, and established by the uncontroverted testimony, that the city of Toledo is a municipal corporation; that East Woodruff avenue is a public street in said city; that the plaintiff, Elizabeth K. Meinert,' is the owner of the east 25 feet of lot 134 and lot .135 of Woodruff’s Addition to the city of Toledo, and that said lots have a frontage of 75 feet on East Woodruff avenue between Canton street and Cherry street in this city. That on the first day of February, 1859, the city of Toledo, by ordinance duly passed, established the grade of said East Woodruff avenue.”

Now this far, we do not know that any complaint can be made of what the court said as to what had been established; for while these things may not have been established by uncontroverted evidence, we think the truth is they are established by the averments and admissions of the pleadings. Then the court continues:

“That after the establishment of the grade of the street in 1859, and in accordance therewith, the plaintiff constructed certain buildings and made other improvements upon the said lots. That on the 13th day of June, 1904, the city of Toledo changed and re-established the grade of the said street between Cherry and Canton streets and in front of the said lots at points higher than the gradé before established; that thereafter the street was graded to the grade established on the 13th day of June, 1904.”

And then the court continues:

“The plaintiff claims in her petition that by reason of the change, in the grade of the street, she has suffered the damages of which she complains.
“The sole question of fact which you are asked to determine is what, if any, damages the plaintiff has suffered by reason of the change of the grade of the street in accordance with the grade established in 1904. ’ ’

Now if the ordinance of 1866 had been admitted there would have been more room for controversy as to the evidence upon which the plaintiff relied, and as to the truth of certain of these alleged matters which the court says have been established by uncontroverted evidence. .We think that that ordinance should have been admitted; but even without that ordinance in evidence, the issue was made by the pleadings, as to whether these buildings had been constructed to conform to an established grade, even if as the case stood it might be fairly said that the grade of 1859 was established, it was not for the court to say, and the court was not authorized to say that it had also been established that the buildings had been constructed to conform to this grade. It matters not that the evidence, consisting of the testimony of certain witnesses, tended to esablish that fact; it matters not that the evidence may have been of a character so persuasive as to convince the ordinary mind that the testimony was true that the buildings were constructed to conform to that grade; the issue had been made by the pleadings, no evidence upon the subject that was conclusive in law had been submitted, the issue had not been waived by the city, the city was insisting upon the submission of this issue, as shown by the first request to charge. The issue should have been submitted to the jury. Some of us remember an expression of Judge Shauck in a case recently decided by the Supreme Court (we have not been able to lay our hands upon it), to the effect that uncontradicted facts are not admitted facts; that because certain ' witnesses testify to facts and the witnesses are not contradicted, that does not-amount to an admission of these facts by the adverse party. The jurors are not bound to believe the testimony of these witnesses; they may not believe them; they may be fully persuaded that the witnesses are either falsifying or that they are utterly mistaken; and so, notwithstanding the fact that there may be testimony tending to support a certain state of facts, not controverted by other witnesses or other evidence, the jury may disbelieve the testimony and may find the facts to be different from what the witnesses have testified to. The party insisting upon having the issues submitted to the jury has that right; and we think that in stating to the jury that these facts were uncontroverted or established and in following that statement with further statement that the sole question of fact to be submitted to them was the amount of damages, if any, the plaintiff suffered, prejudicial error was committed.

That I believe disposes of all the questions submitted, save that as to the measure of damages; and counsel for the city have asked us to say something upon that question. Of course we are not required to say more than that we find no error in the general charge upon this subject that would justify a reversal of the judgment. We think that in the main the charge upon the subject is correct; that it is correct as far as it goes, though we think that the court might have made the charge somewhat fuller and thereby made it somewhat clearer; but there was no request to charge further upon the subject. We call attention to a few of the authorities that have reference to the rule that the damages recoverable consist of the diminished value of the improvements — improvements that are made in reliance upon a grade that has been established, or if none had been established, a level the establishment "whereof might reasonably expected as a reasonable grade. The law upon the subject is discussed in the ease of Cincinnati v. Williams, 8 Ohio Nisi Prius, 561, in the charge and in a note appended thereto by Hon. F. M. Coppock, of the Cincinnati- bar. We think that in the main the statements made by Judge Avery and by Mr. Coppock are correet statements of the law upon the subject. No damage to the lot in its natural state is allowable, unless an unreasonable grade shall be established; then the law seems to allow for damages to the property; but that we have not considered here — I mean damage to the naked lot. Ordinarily damages are not allowed because of the diminution in the value of naked unimproved property. It is only to be allowed on account of the improvements that the proprietor has made in reliance upon an established grade or one reasonably to be anticipated; therefore, where damages for improvements are allowed, care should be taken to not include damages to the lot considered independent of the improvements. Here the claim is that the grade was raised about eight feet and a half. The question for the jury was how did the raising of the grade by the city affect the value of the houses, assuming that it had been established, that there was a grade and that the houses were built in conformity thereto. What were the houses worth as they stood upon these lots immediately before the change of grade and what were they worth immediately thereafter; not what did the house cost, nor what they would be worth situated elsewhere, for sometimes improvements are inappropriate to the location; sometimes it turns out to be a waste of money to put a residence of a certain value in a certain place, or to put up a business house in a certain place, because the building is inappropriate to such place. This change of value the jury have a right to consider; the cost of making the houses convenient of access, if they have been rendered inconvenient of access by the improvement, to restore them as far as possible to their condition of convenience of access by such means as would be deemed reasonable and expedient by the jury. Of course such expenditures as would be deemed imprudent under the circumstances are not to be considered by the jury. The city is not bound to pay the cost of' rendering the property as convenient of access as possible, or as it was before, if such cost would be wholly disproportionate to the advantage resulting therefrom. Sometimes with a dwelling-house upon a small lot, in order to make it fairly convenient of access it would be neccessary to fill up the lot to the grade of the street. Suppose the ease of a lot upon which there were an inexpensive house, a large lot requiring a great deal of filling, the house, we will say, worth five hundred dollars, and the expense of filling more than five hundred dollars, perhaps one thousand dollars, of course the jury would not be authorized to take into consideration the expense of filling up the lot to the level of the house; because the city would be entitled to discharge its obligation by paying the whole cost of the house which it has rendered wholly useless and worthless; and the same rule may be applied to any other alterations and changes made necessary by the change of 'grade. The city could not in any event be required to pay more than the value of the improvements destroyed or rendered worthless by the improvement. General benefits to the lot are not to be considered to set off against this depreciation. What are general benefits and what are special benefits, as they are often called, is often a different question.

That the property may have been made more valuable as a business property by the city improving the street, or that it could be made more valuable by being otherwise improved and used than as designed, and as used by the owner, is, we think, wholly immaterial. The owner has a right to improve and use his property as he may please. It may please him to use as a place of residence a lot that he could use much more profitably for a business house; but that is his right; and the question for the jury is as to the diminution, if any, of the value of the particular improvement upon the lot — such diminution as may have resulted from the change of grade.

As I have said, general benefits are not to be considered, such benefits as may have resulted to all property in the neighborhood; but special benefits, not to this lot as such, not to this lot considered with respect to its availability for other uses; but special benefits resulting to those improvements as they stand, or as prudence may require them to be changed. Such special benefit are to be considered. If, for instance, it is found to be prudent to raise the dwelling-houses up to the new level of the street, .as against the expense of so changing the house, the expense of filling up to the houses may be considered, any special benefits found to result from the houses being placed where they may have basements that they could not have before; any special benefits arising from increasing or improving the facilities for drainage, sanitary or otherwise — I mention these things simply as an illustration. In considering drainage, however, of course the jury should take into consideration such benefits as the lot may be required to pay for fully by assessments; but only such benefits as would result from these particular improvements in excess of what the proprietor may have been required to pay for.

As we have said we think the charge is substantially correct as far as it goes, and as no more specific charge upon this subject was desired or requested, we find nothing in the charge justifying a reversal, except as to the Issue of fact.

In this note of Mr. Coppoek’s on page 573, he extracts and states certain rules of law which we think are well settled; state the law correctly and may be applicable to this ease. I read them :

“1. If after the changes which a prudent man would make to restore the premises to as good condition with respect to the new grade as they were with reference to the old, they are of the same value as before the change of grade, the reasonable costs of* such restoration would be what the owner is entitled to recover.
“2. If under like circumstances, they are less valuable when restored, than before the change of grade, the amount of this diminution in value should be added to the costs of restoration, as the amount of recovery.
. “3. If under like circumstances, they are more valuable when restored than they were before the change of grade, there should be a recovery for the difference between the costs of restoration and this increase of value if less than the costs of restoration, but no recovery, if more.”

The judgment of the court below will be reversed, and the cause remanded, .because of the error in excluding the ordinance and of error in declining to rule out the answer of the plaintiff before referred to, and the error in the statement in the charge as to xmeontfadicted facts.


source: Caselaw Access Project

license: Public Domain

text:
    APPLICATION OF A RECENT CONSTITUTIONAL AMENDMENT.
    Court of Appeals for Morrow County.
    John C. Morrow v. State of Ohio.
    Decided, June 26, 1913.

      Criminal Law — Amendment Permitting Prosecutor to Comment Upon Failure of Prosecuting Witness to Take the Stand — Not Applicable to a Case Begun in December Last — Must Said Amendment be Supplemented by Legislative Actionf — Competency of Evidence — Section 13661.
    1. A conversation between a jail prisoner and an acquaintance, which was overheard by the sheriff who had concealed himself for that purpose and during which the prisoner made certain inculpatory statements, is admissible in evidence at his trial.
    2. It is not error, in a criminal trial, for the court to refuse to instruct the jury before argument upon matters of law. '4 C. C., 378, followed.
    3. The case of one arrested and examined before a justice of the peace in December, 1912, the transcript of which proceedings was filed in the common pleas court before the end of that month, was pending prior to January 1, 1913, and falls within the saving provision of the constitutional amendment which permits the prosecuting attorney to comment upon the fact that the accused failed to take the stand in his own behalf and the court to make reference thereto in the charge to the jury.

      J. W. Barry and T. B. Mateer, for plaintiff in error.

      Benjamin Olds and J. C. Williamson, contra.
    Shields, J.; Voorhees, J., and Pollock, J. (sitting in place of Powell, J.), concur.
   At tbe February (1913) term of the Court of Common Pleas of Morrow County, Ohio, an indictment was returned by the grand jury of said county against the plaintiff in error for the crime of murder in the first degree. A motion to quash said indictment, and a demurrer thereto, were overruled, to which exceptions were taken. Thereupon the plaintiff in error entered a plea of not guilty to said indictment, and at said term of court he was put upon trial on said indictment and was convicted of the crime of murder in the second degree. A motion for a new trial was overruled to which exceptions were taken, and the plaintiff in error was thereupon sentenced by said court to imprisonment in the Ohio penitentiary for life. A bill of exceptions was taken containing the evidence upon said trial, including the charge of said court, and a petition in error is filed in this court for the review and reversal of said judgment of conviction and sentence of the said court of common pleas, and the grounds of error alleged therein are as follows:

“1. The court erred in overruling the motion of plaintiff in error for a new trial.
“2. The court erred in overruling the motion of the defendant at the close of the testimony of the state, to direct the jury to return a verdict for the defendant, which motion was renewed by defendant after the close of the testimony' on the part of the defense.
“3. For misconduct of counsel on the part of the state in his closing argument, in this, to-wit: In commenting on the failure of the defendant for not going upon the witness stand in his own behalf.
“4. The court erred in charging the jury that the failure of the defendant to testify in his own behalf was a circumstance that the juty might consider in arriving at a verdict.
‘ ‘ 5. The court erred in refusing to charge the jury in writing before argument as requested by defendant.
“6. The court erred in his charge to the jury.
“7. The court erred in the admission of testimony offered by state and.at the time objected to by defendant.
‘'8. The court erred in rejecting the testimony offered by the defendant and at the time excepted to by the defendant.
“9. Because the state failed to show by testimony that any crime had been committed.
“10. The verdict of the jury is not supported by the evidence.
“11. The verdict of the jury is contrary to law.
“12. The verdict of the jury is contrary to law and the evidence.
‘ ‘ 13. The verdict of the jury seems to have been procured through prejudice and partiality.
“14. The verdict of the jury is not supported by any evidence.
“15. The verdict of the jury should have been for the defendant.
“16. Other, errors'occurring at the trial appearing upon the record. ’ ’

We will consider the assignment of the alleged errors in the order in which they were presented to this court. The first is that the court below erred in admitting any testimony under said indictment for the reason that said indictment does not specifically allege intent. An examination of said indictment shows that it expressly charges intent, thus meeting the requirements of a valid indictment in this respect. Hence the demurrer filed challenging the sufficiency of said indictment was properly overruled, and the action of the court below in overruling the same affords no ground of error.

At the close of the evidence offered upon the part of the state, a motion was submitted by the defendant below, which said motion was renewed at the close of the evidence offered upon the part of the defense, that the court instruct the jury to return a verdict for the said defendant, which was overruled. Suffice it to say that the action of the court in overruling said motion was well justified in the face of the record in this case.

Objection was made to the admission and rejection of certain testimony offered upon said trial. Among others, one Harry Brookens testified as a witness for the state. The record shows that a conversation was had between said witness and the accused soon after the alleged crime, and before the arrest of the accused, in which the accused made certain inquiries of the witness. In a talk concerning the death of the decedent, the witness testified on page 139 of the record that the accused made the following inquiries:

“Q. Did he ask you anything relative to the sentiment in the community?
“Objection. Overruled. Exception.
“A. Yes, he asked me how the people felt about it.”

A motion was made by the plaintiff in error that the latter answer be withdrawn from the jury, which was overruled, to which the plaintiff in error excepted, and which action of the court below is assigned as error. The plaintiff in error having made such inquiries upon his own volition, related as they were to the charge afterwards made against him, the state was clearly entitled to make proof of such conversation, and the action of the court in admitting it was proper.

Objection was also made by the plaintiff in error to the introduction of the testimony of Marian E. Piatt, a witness for the state, as the same appears on page 286 of the record, in relation to the pillow-slip alleged to have been found in the bed upon which the decedent was lying with its head imbedded therein, which objection was overruled by the court and to which the plaintiff in error excepted. The overruling of such objection is claimed to be error upon the part of the court. Without setting out such testimony, we are of the opinion that it was only a narrative of facts forming a part of the discovery and location of the body of the decedent, and therefore such testimony was competent.

It is contended by the plaintiff in error that the court below erred in the admission of certain conversations alleged to have been had between the said witness, Marian E. Piatt, and one C. B. Chilcote with the accused after his arrest and after he was placed in the jail of said county. The record shows that the said Marian E. Piatt is the mother of the decedent and the said C. B. Chilcote was at the time the.sheriff of said Morrow county. The record also shows that the testimony of the latter witness offered by the state as to the first conversation alleged to have been had between said witness and the accused was excluded from the jury, but it insisted that the subsequent conversation alleged to have occurred between the witness Marian E. Piatt and the accused, at said jail, when it appears that the. witness, C. B. Chilcote, so concealed his presence that the accused did not know that he was within hearing distance, but who overheard said conversation, was inadmissible, because of inducements alleged to have been offered to the accused by said witness in said conversation to make certain statements in the nature of a confession of having committed said alleged crime. It appears that the witness, Marian E. Piatt, was well known to the accused, he having lived in her family for a considerable time prior to his incarceration in said jail, and expressed a desire to see and talk with him, and it appears that the said sheriff permitted her to enter said jail for that purpose, but upon the express condition that he (the sheriff) hear any conversation had between them, and with the caution given to the witness by the sheriff that she should act discreetly and avoid holding out any promises of favor or otherwise to induce the accused to make any disclosures concerning his relation to the alleged crime. It appears that the witness, Marian E. Piatt, entered the jail and h'ad a conversation with ihe accused (the shei-iff being stationed on the bath room steps, without the knowledge of the accused, so that he could and did hear said conversation), during which conversation the accused is alleged to have made certain inculpatory statements of the suffocation of the decedent by him. Objection was made by the plaintiff in error to the introduction of this testimony, which it is claimed was in the nature of a confession, and that the statements alleged to have been made by .the accused in said conversation were not voluntarily made, which objection was overruled by the court below and to which exception was taken.

In this State, at least, it is the recognized rule that before any confession can be received in evidence in a criminal case, it must appear that it was voluntarily made, and that a confession induced by hope or fear, excited in the mind by the representations or threats of any one, is not to be considered voluntary. Quoting from the opinion in the ease of Rufer et al v. State, 25 Ohio St., 470, the learned judge announcing the opinion in that ease, says:

“Whilst voluntary confessions are always admissible against a prisoner on trial, it is well settled that confessions of guilt made through the influence of hopes or fears, induced by promises or threats of temporal benefit or disadvantage, are wholly inadmissible. . There is no presumption of law, however, that such confessions are induced by improper representations made to the prisoner, but, on the contrary, like every other act of the human hand or head, they are presumed to be voluntarily until the contrary is shown. Hence the burden of showing that such confessions were involuntary, rests upon the accused.” See also Spears v. State, 2 Ohio St., 583.

Tested by this rule, what is the status of the case at bar? Looking to the record, can it be said that the witness failed to observe the caution given by the sheriff by making representations to the accused that- inspired him with the hope of favor to induce him to make the declarations attributed to him? Were such representations the means of producing such alleged declarations? If they were, it could not be claimed- that they were voluntarily made, although made to one not having any authority or control over the prosecution of the accused, Or of his custody, for the presence of the sheriff im the jail was not then known to the accused. Under the preliminary examination made of the witness to determine the admissibility of this conversation by the court, showing as it does the circumstances under which it was given, we are of the opinion that such conversation, and the statements made by the accused at that time, were not made under the provocation of any threats, or through the influence of any hopes or fears, induced by any representations of the witness, and that the court below therefore did not err in admitting said conversation.

Referring to the expert testimony offered upon the part of the plaintiff in error, objection was made and exception taken to the action of the court below in sustaining the motion to strike out a portion of the testimony of one Doctor Spear, a witness for the plaintiff in error, as the same appears on page 505 of the record. Said witness testified as- follows:

“Q. I will ask you, Doctor, whether or not you have ever had any experience in cases of suffocation? A. Yes sir, L recall one case.
“Q. Where was that, Doctor ? A. That was at Edison, while I was coroner. The woman had an epileptic seizure with her face buried in the pillow.
“Prosecuting Attorney: I ask that that be ruled out.
“By the Court: He said at Edison, Ohio. That’s an answer to the question; the other will be ruled out.” To which ruling the defendant excepted at the time.

The remark made by the court in passing upon this question is so self-explanatory as not to require further comment. The motion was properly sustained. On page 418 of the record it appears that Professor Howard was called as a witness for the state and on cross-examination, at pgae 420, he testified as follows:

‘ ‘ Q. Doctor, from your experience and observation would you be qualified to tell the jury how long that food had been in the stomach before death ensued? A. I don’t think I would be able to give any valuable testimony as compared with the physicians.
“Q. Give it to us, Doctor, from your observation and experience as near as you can ?
“Objected to.
“By the Court: You have no experience as a doctor? A. No, sir.
“Attorney Barry: He has had experience in examining stomachs, that he would know whether death occurred about the time.
“By the Court: Objection sustained. Exception.”

Evidently the question was a proper one to put to the witness, in view of the subject under consideration, namely, the condition of the stomach of the decedent, but had not the witness practically answered this inquiry in a prior question asked? We think so. Again, if he had not so answered, had the witness properly qualified to make such answer to such question? We think not. The question was one involving a scientific opinion, was the witness shown to possess the peculiar knowledge called for by the question asked? The preliminary questions asked of the witness seem to furnish the answer (2 Ohio St., 452). Said exception is therefore held not to have been well taken.

Exceptions w'ere also taken to the exclusion of certain other expert testimony offered upon said trial, but we do not regard the action of the court in excluding such testimony as ground of reversible error.

Before the court below charged the jury in said case, certain written requests were submitted to said court upon the part of the plaintiff in error to be given to the jury before argument, some of which were given and others were refused. To such as were not so given the plaintiff in error excepted. An examination of the charge of the court shows that all the requests not so given to the jury before argument, were given to the jury in substance in said court’s general charge. While the practice with courts in giving to the jury written requests, in criminal eases, before argument, has not' been entirely uniform in the former circuit courts in this state, the practice in this district is now and has been to follow the rule laid down in the case of Umbenauer v. State, reported in 4 Circuit Court Reports, 378, wherein it is held that:

“Upon the trial of a criminal ease it is not error for the court to refuse to instruct the jury, at the request of the defendant, upon matters of law before the argument begins.”

This ease was carried to the Supreme Court and affirmed, and has not been overruled. In. refusing to give said requests to the jury before argument, we hold that the court below did not err.

Error is also assigned because the prosecuting attorney in his argument to the jury referred to the fact that the plaintiff in error did not take the witness stand and testify in his own behalf, and that the court below in its charge to the jury referred to such fact. In other words, the plaintiff in error charges misconduct on the part of the prosecuting attorney in his argument to the jury and error in said court’s charge to the jury. Ordinarily it is in the discretion of the trial court to control the argument of counsel in all matters relating to the conduct of trials, and it is only in cases where the court refuses to exercise its powers, or where its discretion is manifestly abused by permitting prejudicial matters to be discussed in argument before the jury that appellate courts will interfere, but where the constitutional rights of a party defendant on trial are invaded and assailed in argument, it is contended that it iá the imperative duty of such courts to intervene, especially in eases where the liberty of a person is involved. Without stopping to theorize on the universality of the law which contemplates giving to every person charged with the commission of crime a fair and impartial trial, let us proceed direct to the consideration of the error here assigned, and in the consideration of such alleged error we will treat the alleged misconduct of the prosecuting attorney and the alleged error of said court together, because they both involve the investigation and determination of the same question.

In his argument to the jury the record shows that the prosecuting attorney in addressing the jury referred to and commented on the fact that the plaintiff in error did not take the witness stand in his own defense. In submitting the case to the jury, the court below charged the jury as follows:

“The failure of the defendant to take the stand in his own behalf is a circumstance which you may take into consideration in connection with all the evidence and circumstances of the ease, to determine whether he is guilty of the crime charged. But if upon a consideration of all the evidence and circumstances of the case, including that of his failure to testify, you entertain a reasonable doubt of defendant’s guilt, then the mere fact that he failed to testify should not operate to the prejudice of defendant.”

'Authority to refer to and comment on the failure of the accused to take the witness stand in his own behalf is claimed to have been conferred by the late constitutional amendment, Section 10, Article I, which became effective January 1, 1913. The view we take of this question renders it unnecessary to determine whether or not said amendment acts automatically, or that said amendment must be supplemented by legislative action to give it effect.

Before the adoption and taking effect of said constitutional amendment the statute in force regulating the procedure of criminal trials for crimes and offenses committed before that time, except as hereinafter stated, in respect to the right of the accused to take the witness stand in his own behalf was Section 13661, General Code, passed in conformity with the provisions of Section 10, Article I. of the Bill of Rights, which provided that:

“On the trial of indictments, complaints, and other proceedings against a person charged with an offense, such person at his own request shall be a competent witness. The neglect or refusal of such person to testify shall not create a presumption against him, nor shall reference be made to, nor comment made upon such neglect or refusal.”

Under this section the accused was a competent witness in his own behalf, if he elected to testify; but if not, such fact was not allowed to be made the subject of comment, and all reference thereto was forbidden, and a violation of this statute has frequently been held by the courts as affording ground for a new trial.

It is claimed that the foregoing statute has been superseded by such constitutional amendment, Section 10, Article I, and which in part is as follows:

“No person shall be compelled, in any criminal case, to be a witness against himself; but his failure to testify may be considered by the court and jury and may be made the subject of comment by counsel.”

It is by virtue of this amendment that the state claimed authority to comment on the failure of the accused to take the witness stand in his own behalf, and the court to call attention to it as appears in said charge, while the plaintiff in error denied such right or authority and contended that the provision of said Section 13661, General Code, governed the procedure of said trial. *

It appears that the death of Marian Estella Piatt occurred November 27, 1912; that the accused was arrested and charged with said crime December 12, 1912, before one J. M. Griffis, a justice of the peace in said Morrow county; that on the'14th day of December, 1912, the accused waived examination and was committed to jail on said charge; that on the 14th day of February, 1913, the accused was indicted by the grand jury of Morrow county for said crime, and on the 10th day of April, 1913, he was found not guilty of murder in the first degree but guilty of murder in the second degree.

In the schedule to the several amendments to the Constitution which became effective January 1, 1913, it is provided that:

“The several amendments passed and submitted by this convention when adopted at the election shall take effect on the first day of January, 1913, except as otherwise specifically provided by the schedule attached to any of said amendments. All laws then in force, not inconsistent therewith, shall continue in force until amended or repealed; provided that all cases pending in the courts on the first day of January, 1913, shall be heard and tried in the same manner and by the same procedure as is now authorized by law. ’ ’

That said Section 13661 is inconsistent with the provisions of said constitutional amendment, Section 10, Article I, is apparent,'and the question then arises, under the facts stated in relation to the time of the arrest and commitment of the accused on said charge, whether or not the case at bar was pending January 1, 1913, and is included in the exceptions to said amendment as contained in said schedule. If the ease falls within such exceptions, then the contention made by the plaintiff in error is well taken, otherwise it is not. The inquiry is, then, what is meant by “cases pending in the courts”? When can it be said that a case is pending? A criminal case ready for trial, for instance, not only consists of an indictment,'but the indictment may be only one of many stages of proceedings had before the case is ready for trial. This is especially true where the accused is arrested and a preliminary examination is had before the indictment is returned by a grand jury. Consulting the text-writers upon this subject, we find that in Wharton’s Criminal Pleading and Practice, 9th Edition, Section 1, it is laid down that:

‘ ‘ The usual commencement of a criminal procedure is a preliminary oath before a magistrate, upon which, if it appear on the face of such oath that a criminal offense has been committed by the defendant within the magistrate’s jurisdiction, a warrant may issue.”

In Bishop’s Criminal Procedure, Sections 28 and 29, it is also laid down:

‘ ‘ That the successive steps in a criminal cause are: 1. The steps which precede the indictment or information. 2. What follows down to the finding upon the facts. 3. From the finding of guilty to the complete execution of the sentence. ’ ’

In the case of Hartnett v. State, 42 Ohio St., 568, it is laid down that:

"The first step, the arrest, the examination and commitment, the presentment by the grand jury of the written accusation of the crime, which becomes the indictment, the arraignment, plea, trial, verdict, sentence and execution, are regarded as successive steps in a criminal cause or prosecution.”

And in the same case it is likewise held that:

"When a person is arrested and duly committed for a crime, for which he is thereafter indicted, the prosecution for that crime is pending, within the meaning of Revised Statutes, Section 79, as soon as he is arrested and committed.”

Hence we think it follows that the arrest and commitment of the accused before the said justice of the peace in December, 1912, and the further fact that the transcript of the proceedings had against the accused before said justice of the peace was duly certified to the clerk of courts of said Morrow county and filed in his office December 17, 1912, must be deemed to be a commencement of the ease, and was then a pending case, in contemplation of law. If we are correct in this view, if the case was one that was pending before January 1, 1913, then does it not fall within the express words of the saving clause contained in said schedule? Respecting repeals and amendments of statutes, Section 26, General Code, provides that:

"Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed, nor shall any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.”

That said constitutional amendment would be paramount to and work a repeal of said Section 13661, in the absence of the saving clause referred to, is not open to question, and said Section 26 provides “that such repeal * * * shall in no wise affect pending prosecutions, unless otherwise expressly provided in the repealing act.” In said schedule it is expressly provided “that all eases pending in the courts January 1, 1913, shall be heard and tried in the same manner and by the same procedure as is now authorized by law.” Here is an express provision saving “all cases pending” at the time mentioned. Palmer v. State, 42 Ohio St., 596; Bergin v. State, 31 Ohio St., 111; State v. Lawrence, 74 Ohio St., 38; Bevitt v. Diehl, 12 Ohio Decisions, 315.

As before indicated, we are of the opinion that the case at bar falls within the saving clause of the schedule to said amendment, that the mode of procedure governing the trial of this case was according to the law in force prior to the adoption and taking effect of the said constitutional amendment, and that the conduct of the prosecuting attorney in his argument to the jury in referring to the accused as not having taken the witness stand in his own defense, as well as the court in its charge to the jury in making reference to the same, was error for which this case should be reversed.

At the expense of no little time and care we have examined the voluminous record herein with especial reference to the contention of counsel for the plaintiff in error that the verdict of the jury is against the manifest weight of the evidence, and is not supported by any evidence, and we are unable to agree with counsel in such contention. We have also examined the other assignments of error in the petition in error of the plaintiff in error, not herein specifically referred to, and we find 'no substantial or prejudicial error in said record for which this case should be reversed, except the sole error hereinbefore referred to.

A cross-petition in error is filed herein by the prosecuting attorney wherein this court is requested to pass upon certain questions involving the admissibility of evidence sought to be introduced by the state on the trial of the case below, to the introduction of which evidence the defendant objected and the state excepted. Section 13681, General Code, provides:

“That the prosecuting attorney or the Attorney-General may except to a decision of the court and may present a bill of exceptions thereto, which the court shall sign, and it shall be made a part of the record. ’ ’

We apprehend this section relates to error proceedings prosecuted in the Supreme Court. However that may be, we are of the opinion that until the pending case is terminated and a final judgment is rendered therein, the interests of the state will not suffer. The application made will be denied on the authority of State v. Dickerson, 73 Ohio St., 193.

For the reasons hereinbefore stated, the judgment of the court of common pleas will be reversed and said cause is remanded to said court for further proceedings according to law. Exceptions noted.


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    PROCEEDINGS IN BASTARDY.
    Circuit Court of Hamilton County.
    John Campbell v. State, ex rel Elva J. Cain.

    Decided, June 3, 1911.

      Order of Trial in a Bastardy Case — Discretion of Court as to Order of Admitting Evidence — Error—Section 12122.

    In the trial of a bastardy case, failure to read before complainant rests the transcript of the evidence given by the complainant before the magistrate, does not constitute prejudicial error where the reading of the transcript occurred before the defendant was placed on the witness stand.

      Thomas H. Kelley, for plaintiff in error.

      Jos. T. Harrison, contra.
    Jones, J.; Smith, P. J., and Swing, J., concur.

       Affirmed by the Supreme Court without opinion, Campbell v. State, ex rel, 88 Ohio State.

   The jury found the defendant below guilty as charged in the complaint after hearing the evidence adduced and proper instructions by the court.

We think the failure of plaintiff below to read the transcript of complainant’s evidence, as given before the magistrate, at the proper time is not prejudicial error.

The transcript was referred to in the trial by counsel before plaintiff rested and'it was within the discretion of the court to permit it to be read later, especially as it was read before defendant placed a witness on the stand.

The evidence is conflicting, as it always is in eases of this nature. The jury heard it with full opportunity to note the interest and demeanor of the witnesses and were the sole judges of the reliability and credibility of the.testimony offered.-

Finding no error the judgment will be affirmed.


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    ACTION TO RECOVER FOR LIFE LOST IN A BURNING BUILDING.
    Court of Appeals for Hamilton County.
    John J. Henderson, Administrator, v. Moses Ruskin.
    Decided, March 1, 1913.

      Landlord and Tenant — Responsibility for Protecting from Fire Occupants of Buildings Under Lease.

    The duty of providing convenient exits in case of fire, from a building-more than two stories high, used as a factory, tenement, inn, or public house, is not placed by Section 4658, General Code, upon the owner of the fee, where all the floors above the first are leased to a tenant who is in possession and control thereof.

      Jackson (& Woodward, for plaintiff in error.

      J. Louis Kohl, contra.
    The decedent lost her life in a fire in December, 1909, in a building on Third street, owned by Mr. Ruskin, who was in possession of the first floor but had leased the three upper floors to one Wilson as a tenement house. The action was .for damages, and at the hearing below a demurrer to the petition was sustained.

      Jones, E. IT., J.; Swing, J., and Jones, O. B., J., concur.
   We are of the opinion that the construction to be placed upon the word “owner” as used in Section 4658 of the General Code is not affected by legislation enacted since the decision in Lee v. Smith, 42 O. S., 458. The syllabus in that case reads :

“Section 2573 of the Revised Statutes, as amended April 19, 1883, does not impose upon any owner in fee of a building more than two stories high, the duty to provide a convenient exit from the different upper stories of said building when such owner is not in possession or control thereof, although his tenant in possession ond control or the building may use the same as a factory or workshop.”

Upon the authority of that case the demurrer to the amended petition was properly sustained by the court below and the judgment is affirmed.

We may add that the decision in Rose v. King, 49 O. S., 213, cited by plaintiff in error, in view of above holding, is of no avail as against this defendant.


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    REVOCABILITY OF INTERURBAN FRANCHISES.
    Court of Appeals of Stark County,
    State of Ohio, ex rel Charles Krichbaum, Prosecuting Attorney of Stark County, Ohio, v. The Northern Ohio Traction & Light Company.
    Decided, January Term, 1913.

      Grants to Railways for Use of Highways — Franchise for Such Use is a Contract — Runs xoith the Land or Sxibject of the Contract — And is Irrevocable by County Commissioners, When- — Complaints as to Excessive Rates of Fare — Not Ground for Forfeitxire of Franchise— But Should Go to the Railroad Commission — Proceedings for Ouster —Application of the Statutes of Limitation- — Sections 9101 and 12340.
    1. A resolution adopted by a board of county commissioners, granting to the person named therein the right to 'locate, construct, maintain and operate an electric railway along a public highway, is not any the less a continuing contract because of the omission of terms in the grant which authorize a transfer to others of the rights therein granted; but the covenant in such a case must be regarded as a grant which runs with the land or subject-matter of the contract, and the addition of the word “assignee” or “assigns” is not necessary to make the covenant effective to all persons to whom the property or rights may pass.
    2. When a franchise or contract rights have been granted by an exercise of power duly conferred and such rights have become vested, no amendment or alteration of the charter or contract can take away the property or rights so vesting; and where the grant is without a time limit, and there are no limitations upon the powers of the commissioners making the grant, the rights so conferred are not a mere grant at will, but are indeterminate or perpetual, and can not be terminated by the commissioners, nor can such rights always be revoked by the General Assembly.
    3. Where there is no complaint against a company, occupying a public highway with an electric railway line, or omission to do any act stipulated to be done or violation of any of the privileges granted, and the only allegation upon which it is sought to revoke the grant is the charging of excessive rates of fare, the relators have no standing in court, but must seek relief before the state railroad commission.
    4. Moreover, where the grant contains no express condition of forfeiture, no implied condition can be read into the contract which would deprive successors of the original grantee of the right to exercise the privileges so granted.
    5. But demurrer does not lie against a petition to oust a corporation from its franchise, where the petition does not allege that the action was commenced within five years after the act complained of was done or committed, or that the company has exercised the franchise for twenty years, exclusive of the time it was enjoyed by predecessors in title.

      Hubert G. Pontius and Franldin M. Sweitzer, for plaintiff.
    Welly• & Albaugh, contra.
    Vooriiees, J.; Powell, J., concurs; Shields, J., dissents.
   This is a proceeding in quo luarranto instituted under favor of Section 12340, General Code of Ohio, in which it is provided "that nothing in this chapter shall authorize an action against a corporation for forfeiture of charter unless it be commenced within five years after the act complained of was done or committed; nor shall an action be brought against a corporation for the exercise of the power or .franchise under its charter which it has used and exercised for a term of twenty years; nor shall an action be brought against an officer to oust him from his office unless within three years after the cause of such ouster or the right to hold the office arose.”

Charles Krichbaum, as prosecuting attorney of Stark county, Ohio, on the 13th day of August' 1912, filed a petition in the Circuit Court of Stark County, Ohio, alleging in substance that the Northern Ohio Traction & Light Company is a corporation duly organized under the laws of the state of Ohio, and engaged in operating an interurban electric railroad in Stark county, in the state of Ohio, on a public road or highway known as the Canton-Massillon road between the cities of Massillon and Canton. The defendant is operating said interurban electric railway by virtue of the authority and right which it claims to have, as assignee or transferee under a certain resolution passed by the commissioners of Stark county on or about February 22, 1892, and recorded on pages 17, 18 and 19 of Volume 8, commissioner’s journal of Stark county, and which resolution is set out in full in said petition. In said resolution it is resolved, that the right ■is thereby granted to William A. Lynch-,- and to such railroad company as he may cause to be incorporated for that purpose, to locate, construct, maintain and operate an electric railroad along either side of said road running between Canton and Massillon between the line of the Canton street railway and the corporate limits of the city of Massillon. Then the petition proceeds to describe the manner of constructing said railway under said resolution and the condition that said William A. Lynch, or the railroad c'ompanj, before commencing any part of said wo-rk should enter into a bond in the sum of ten thousand dollars, conditioned for the faithful performance of the conditions enjoined upon them by said resolution; it being- further understood and provided that said William A. Lynch, or the railroad company, before commencing any part of said work, should enter into bond in the sum of five thousand dollars, conditioned that said William A. Lynch or said railroad company should keep said county and said board perfectly harmless from any and all liability to abutting property owners, growing out of the construction of said road. Said resolution was adopted and entered under the minutes of February 22, 1892.

On the margin of page 18 of said commissioners’ record is written, with red ink, “Transferred to. Canton-Akron Ry. Co. July 2, 1902. W. M. Reed, Auditor.”

Plaintiff avers that said resolution under which defendant is operating its electric interurban railway is silent as to duration, and is indeterminate, and exists only so long .as the parties thereto mutually agree. That the board of commissioners, being the same authority originally granting said resolution under which defendant is operating its electric interurban railway, on or about March 27th, 1912, adopted by' a unanimous vote of the members of said board, a resolution which is set out fully in the petition. Said resolution, among other things, provided that whereas an electric railroad is being operated on the public highway between Canton and Massillon by the Northern Ohio Traction & Light Company, under the right conferred by a former board of county commissioners by virtue of a resolution passed February 22, 1892, in favor of William A. Lynch, and such railroad company as he might cause to be incorporated, said electric railroad is not being operated under any regular franchise. The fare charged by said company at the present time is twenty-five cents- per round trip, between Canton and Massillon, or fifteen cents one way, and no transfers are given for transportation on either of the city lines in Canton or Massillon in' connection with said above mentioned fare. It is declared in said resolution that in the opinion of said board of commissioners the sum of ten cents for the fare one way between said cities of Canton and Massillon, with the privilege of a transfer on all lines operated'by said company in either of the cities of Canton or Massillon, would be a fair compensation for transporting people the distance of eight miles between the two cities, and that the sum of five cents for the fare one way from-Reedurban or any intermediate points to either the city of Canton or the city of Massillon, with the privilege of similar transfer as mentioned above would be a fair compensation for transporting the ■people said distance. Therefore said board resolves that unless said the Northern Ohio Traction & Light Company comply with the above mentioned matters of reduction of the amount of fare charged for transporting people between the cities of Canton and Massillon and their intermediate points, together with a transfer on the city lines of Canton and Massillon, on or before the 27th day of April, 1912, the said grant given to said William A. Lynch, on February 22, 1892, to operate an electric railroad between said cities of Canton and Massillon, is hereby declared terminated and the prosecuting attorney of this county is hereby instructed to take such legal proceedings as may be necessary to have said grant made null and void, and the said electric railway removed from said public highway between said cities of Canton and Massillon.

Immediately upon the adoption of said resolution said board notified said defendant company of its election to terminate said franchise unless certain conditions, in said resolution and notice contained, were complied with by said defendant by the 27th dajr of April, 1912. It is averred that said defendant company failed to comply with the conditions named in the notice and resolution by the 27th day of April, 1912, and that said election to terminate the right of the defendant to operate said interurban railway became operative on said 27th day of April, 1912. It is further averred that the defendant has wholly refused, and still refuses and fails to comply with the conditions; of said resolution and notice. It is further averred that on or about the — day of April, 1912, said board of commissioners reaffirmed its election to terminate said franchise and the right of defendant to operate its electric interurban railway between Massillon and Canton, by adopting, by a unanimous vote of the members of said board, a resolution which, among other things, provided that, a proposition is submitted to said board on the 26th day of April, 1912, at 3:40 o’clock p. m., by Mr. Charles Currie, general manager of the Northern Ohio Traction & Light Company, that the public highway between the cities of Canton and Massillon be widened from the width of 66 feet to the width of 100 feet; and further provided that a franchise be given the defendant company for a double track electric railway to be constructed in the center of the highway, with center pole construction, with the further provision that said franchise extend for a period of twenty-five years, and that the cities of Massillon and Canton extend their franchises to said company so as to expire at the, same time as the said proposed twenty-five year county franchise expires. If said proposition were accepted by said board of commissioners said company further proposed certain terms to be incorporated in said proposed twenty year franchise. It is further averred that a majority of the owners of land lying along said public highway are opposed to any widening of said road and it would be a useless and extravagant expenditure of the public funds of the county and would be doing a wrong to the taxpayers over the entire county for said board to pay one cent towards said widening of said public highway for the purpose of giving said defendant company a double track on said highway. And it further averred that whereas said board had formerly passed a resolution on March 27th, 1912, which provided that unless the said company meet the demands of said board in regard to the question of fare, etc., a former resolution passed in February, 1892, whereby said company was given the right to construct and operate said electric railway, as at present operated, would be annulled and rescinded. Therefore the said proposition as submitted by the said defendant company was rejected. It is further averred that whereas, in consideration of the fact that the defendant company is operating an electric railway on the public highway between the cities of Canton and Massillon, "and since submitting the above proposition has made no statement or agreement to the effect that the demands of this board, as set forth in a resolution passed March 27th, 1912, would be complied with, therefore that in the event that said demands of the board are not met by said company on or before the time mentioned in' said resolution of March 27th, 1912, the prosecuting attorney be and is hereby instructed to immediately proceed to have injunction proceedings filed against said company restraining said company from operating said electric railway on said public highway between the cities of Canton and Massillon or running oars thereon, and to further compel said defendant company to remove said railway from said public highway. It is further averred that said resolution provided that the same be contingent upon and in accordance with the conditions of said resolution passed by said board on March 27th, 1912. It is further averred that shortly after the passing of said resolution of said commissioners, recorded in Volume 8, commissioners’ journal aforesaid, that the Canton-Massillon Electric Railway Company, an Ohio corporation, was organized by William A. Lynch under the terms of said grant, and it did operate on said franchise and grant. The plaintiff further avers that the rights and privileges contained in said grant were personal to said William A. Lynch, the grantee, and the Canton-Massillon Electric Railway Company, organized by said William A. Lynch, for operating under said grant and franchise could not be assigned under the terms and conditions of said grant without the consent and authority, and additional action of said board of commissioners. It is further averred that at the time of the assignment to the Canton-Akron Railroad Company said consent was not granted.

The plaintiff therefore contends and asks that, by reason of the matters and things set forth in the petition, the defendant company be required and compelled to answer by what warrant it claims to have the use of and to enjoy the rights, privileges and franchises used and exercised by it on the operation of its said -interurban electric railroad between the cities of Canton and Massillon; and that it be ousted from exercising the same and be compelled to remove its tracks and switches from said road between said cities.

To this petition, upon leave granted to the defendant, it filed a special and also a general demurrer to said petition, setting forth in the special demurrer that: ■

1. That this action was not brought within the time limited for the commencing of the same.

2. That this action is barred by laws of Ohio, and was not commenced within the time prescribed and provided for therein, and is therefore barred by the statute of limitations placed upon such action.

For its general demurrer the defendant sets forth five grounds, namely:

1. That the petition does not state facts sufficient to constitute a cause of action against the defendant.

2. That the petition does not state facts sufficient to entitle the plaintiff to the relief prayed for.

3. That this court has not jurisdiction to hear and determine this action or to grant the relief prayed for therein.

4. That this action is barred by the statute of limitations.

5. That the-plaintiff has no legal capacity to try or to bring suit. • ■ •

This cause was submitted to this court on the demurrers of the defendant.

The plaintiff sets out at great length the various proceedings had by the commissioners of this county in regard to the occupancy of said road by said defendant company.

The action is a very important one, not only as to the property rights involved but also as to the interests of the general public therein. The case has been ably argued, both by written briefs and in oral argument. In the short time that the court has had to consider the questions submitted on the demurrers, it can not be expected that the court will- enter into • extended reasons for the conclusions it has reached, but its conclusions will have to be in many respects dogmatically announced for want of time to give the reasons therefor. In stating the facts set forth in- the petition we have epitomized on analysis of the petition in order to present the material questions raised by the demurrers in the case.

It is contended by the plaintiff that the resolution adopted by the board of commissioners on February 22, 1892, granted to William A. Lynch and to such railroad company as he might' cause to be incorporated for that purpose the right to locate, construct, maintain and operate an electric railroad along said highway running between the cities of Canton and Massillon.

It is contended that this resolution, if it is to be considered as a contract, is only personal to William A. Lynch, and therefore could not be transferred or assigned by him to any other person or corporation, for the reason that it lacked terms in the grant that would authorize the transfer by him of said privileges granted to him by the resolution of February 22, 1892. In other words, the omission of the words “successors or assigns” made the contract or grant only personal to said William A. Lynch and an assignment or transfer of the grant by him to any person or corporation would be void.

The covenant or grant given by the county commissioners to said William A. Lynch, and to such railroad company as he might cause to be incorporated to locate, etc., an electric railroad on said road or highway, was authorized by a statute in force at the time the grant was given, said' statute being Section 3438, Revised Statutes,'now Section 910T, General Code of Ohio, and is a covenant or grant that runs with the land or subject-matter of the contract, and the word “assignee” or the word “assigns” is not necessary to make the covenant effective as to all persons to whom the property or rights pass.

In 1 Smith’s Leading Gases, 208, it is said:

“It may be observed that the question of whether it is necessary to covenant for assigns as to anything not in esse at the time of the covenant discussed in the first and second resolutions of the leading case, has generally been passed over lightly in this country, and the use of the word ‘assigns’ considered of little importance, if an intention that the covenant run can be gathered from the whole instrument.”

In Masury v. Southworth et al, 9 O. S., 352, the Supreme Court, in passing upon the question as to the necessity of the use of the word “assigns” in connection with the covenant which runs with the land, said:

“The important consideration is whether the covenant is annexed to the estate and runs with the land. If this be so the rights- and liabilities of those who take the estate and possess the land during the term, flow from a privity of estate and not from any assignment of right or contract. If the covenant does not run with the land, no words of assignment can create a privity of estate; if a privity of estate be created no words of assignment are necessary.”

The language of the grant given to William A. Lynch in the resolution of February 22, 1892, granted to him and to such railroad company as he might cause to be incorporated, the right to locate, construct, etc., an electric road on said public highway. We are of the opinion that it was not a mere personal grant to Mr. Lynch to be confined to his rights under the grant, but that the grant in this case, under this resolution, was a grant securing to Mr. Lynch the right to transfer the same to a third person or to a corporation.

There being no conditional limitations upon the powers of the commissioners granting the franchise, they could grant privileges which were perpetual or for a definite period which might extend beyond the corporate life of the grantee. Since in this grant there was no time limit the privileges are perpetual. When under power in a franchise or contract rights have been acquired and become vested, no amendment or alteration of charter or contract can take away the property or rights vested under the legitimate exercise of the powers granted.

‘‘Property rights acquired under and by,virtue of franchises thus granted are perpetual, unless otherwise limited in the grant; and there was no limit in this case, and this franchise is not void, as a consequence thereof.” Booth on Street Railroad#, Section 17, and authorities there cited.

It is further contended that the grant to Mr. Lynch was without a time limit and therefore a mere grant at will, and that the commissioners could terminate the same at any time they saw proper to do so.

In support of this contention on the part of the plaintiff, we are cited to the 81st O. S., pages 33 and 53, as sustaining this contention.

We are of the opinion that the case of East Ohio Gas Company v. City of Akron, 81 O. S., supra, does- not apply in this case. That a corporation like the corporation in the 81st O. S., is of a different nature than a corporation for public service, such as a railroad company or an electric railroad company, and therefore the principles announced in the 81st O. S., do not apply, but rather the principle recognized in the case of State, ex rel Taylor, v. The Columbus Railway Company, 1 C.C.(N.S.), page 145, does apply in this case. In that case it is held, that a franchise or privilege to construct and operate said railway granted and consented to without limitation of time, is perpetual, subject only to be terminated by the General Assembly, under Section 2, Article I, or Sections 1 and 2 of Article XIII, of the Constitution of the state. Consent given without limitation of time to a corporation is not always revocable even by legislative authority. The case of City of Detroit v. Detroit & F. Plankroad Company, 43 Mich., 140, we cite, in which Judge Cooley says:

“It can not be necessary at this date to enter upon a discussion in denial of the right of the government to take from either individuals or corporations any property which they may rightly have acquired.”

The commissioners in this case, having granted to William A. Lynch the right to occupy said public highway, fixing no time limit for its occupancy and permitting improvements to be -made with reference thereto, are without authority to revoke said right and the grant is indeterminate.

The only complaint made by the commissioners against the defendant company is that it charges an excessive rate of fare between Canton and Massillon for a round trip, and for a single trip, and no privilege of transfers is given. In other words-, there is no complaint by the commissioners of any violation of any privilege or grant given to Mr. Lynch or a corporation to be organized by him, or its successors, as to any act done by it, or the omission of any act to be done by it, but the complaint is as to the excessive charges for fare complained of in the resolution of March 27th, 1912.

As a relief for this complaint, the Legislature has provided, we believe, the exclusive remedy for such complaint, and that is to apply to the Railroad Commission under favor of the act of the Legislature found in Volume 102 Ohio Laws, pages 553, 556 and 557, and if we are right in this conclusion the plaintiffs have no standing in this court and are not entitled to the relief prayed for in their petition.

But, if we are wrong in this conclusion there is another reason why the plaintiff is not entitled to the relief asked for in his petition, and that is for a forfeiture of the charter and grant under which said defendant is operating said railroad. Under the resolution of February 22, 1892, there is no provision or condition of forfeiture contained in said resolution, and the resolution, being a contract between the parties, unless it provided an express condition of forfeiture, no condition of forfeiture by implication can be exercised by the board of commissioners. If the contract made with the commissioners and Mr. Lynch, by resolution of February 22, 1892,-is to be considered as a contract of lease, and makes no provision for forfeiture for failure to comply with any express condition, it can not exercise the right of forfeiture by any implied covenant or condition not expressed in the resolution or contract. As no conditions of forfeiture are expressed in the resolution or contract none can be implied. There is no implied or express covenant in the resolution of February 22', 1892, for a forfeiture of said grant for a breach of any covenant contained therein. Therefore, we hold that there is no ground for a forfeiture of the grant secured by Mr. Lynch or enjoyed by said defendant company as his successor or assign, but even assuming that the board of commissioners has the authority to declare a forfeiture of said grant, have they so declared? You can search the various resolutions adopted by the board of commissioners at different periods but you will fail to find any unconditional declaration of forfeiture of said grant, but what they have done has been conditional and uncertain as to forfeiture, and as their pleading is to be tested by the facts alleged in the petition, let the facts not alleged be as they may, they are to be construed most strongly against the pleader. Therefore the fact not being alleged that there has been a forfeiture, in testing it on the demurrer it is to be construed most strongly against the plaintiff, and therefore it is to be construed as though the allegation was that there was no forfeiture on the part of the ’ plaintiff; That being so, the petition does not state facts sufficient to constitute a cause of action in this case.

It is contended by the defendant that the plaintiff’s cause of action is barred by the statute of limitations and our attention has been called to Section 12340 of the General Code of Ohio, in support of this contention.

Upon a careful reading of this section it will be noticed that nothing contained in the chapter in quo warranto shall authorize an action against a corporation for forfeiture of charter, unless it be commenced within five years after the act complained of was done or committed. As we have seen the only complaint made in the petition upon which a forfeiture could be based is the excessive fare charged by the defendant company, but just when said company commenced to charge its excessive rate of fare is not declared by the petition,‘and as the ground of demurrer for limitation must appear on the face of the petition, it does not clearly appear in this ease as to when the defendant company commenced to charge this excessive rate of fare. Therefore, the ground of demurrer as to the statute of limitations is not well taken. For that reason the same is overruled, as the statute for forfeiture .in such case would require the action to be commenced within five years after the act complained of was done or committed.

It is contended by the defendant that the action is barred by said section on the ground that the twenty year statute bars the action. The time in which the defendant company has exercised the franchise has not been twenty years, unless the time that the defendant company has enjoyed said franchise can be tacked on to the time exercised by its predecessors in title.

We are of the opinion that this can not be done. . That period must embrace the time that the defendant company has enjoyed said franchise independent of the time enjoyed by its predecessors in title.

“The general rule is that possession can not be tacked on to make.out title by prescription, where the deed under which the last occupant claimed title does not include the land in dispute. It must clearly appear in the deed that the particular premises were embraced in the deed or transfer'in whatever form it may have been made. ’ ’ 1 Enc. Law and Procedure, 1007.

In other words, where the party occupying is not claiming under any color of title, but simply by occupancy, such party must be iu possession during the required period of limitation. Therefore, it not appearing in the petition that the defendant company has been in possession twenty years without tacking on to the possession of its predecessor in title, namely, Mr. Lynch and his successors, the defendant is not entitled to the contention that this action is barred by the twenty years limitation provided for in Section 12340.

Therefore, the demurrer as to the statute of limitations is overruled; but we hold that the general demurrer is well taken, and that the plaintiff has no cause of action and that the plaintiff has not the legal capacity to bring this action. Therefore, the general demurrer is sustained on the ground that the petition does not state facts sufficient to constitute a cause of action, and the special demurrer that the plaintiff has not the capacity to bring the action is also sustained.

In the event that the plaintiff does not desire to plead further by amendment, the petition of the plaintiff will be dismissed at the cost of the plaintiff.' Exceptions may be noted.