author: WINCH, J.

text:
    MARRIAGE LICENSES — PERJURY—STATUTES.
    [Cuyahoga (8th) Circuit Court,
    January 21, 1907.]
    Marvin, Winch and Henry, JJ.
    George Field v. State of Ohio.
    1. False Statement in Application fob Maebiage License is Perjury.
    Revised Statute 6390 (Lan. 9966) provides that applicants for marriagia licenses shall state, under oath, certain enumerated things, and ther proceeds “and shall also state,” among other things, the number of times either party has previously been married. By such act it is intended that all of the statements given by the applicant shall be under oath, and when one falsely states that he has not been previously married he is guilty of perjury.
    [For other cases in point, see 6 Cyc. Dig., “Perjury,” §§ 1-19. — Ed.]
    [Proof of this decision and syllabus was submitted to Judge Winch and corrected. — Ed.]
    Error to Cuyahoga common pleas court.
    G. N. Shaver, for plaintiff;
    J. P. Mooney, for defendant.,
   WINCH, J.

At the last term of the common pleas court the plaintiff in error was convicted of perjury, and now brings this action to reverse the judgment of said court.

It appears that plaintiff in error had been twice married and divorced, when, on March 6, 1905, he applied to the probate judge of Cuyahoga county for a license, so that he might be married a third time, and made answer to certain questions propounded to him. in writing, one of which questions was as follows: “Number of times previously married?” His answer to this question was: “None.” It is conceded that this answer was untrue. Some claim is made that Field did not make the statement in his application under oath, but as we are of opinion that the bill of exceptions does not bear out this claim, and that the jury was warranted in finding that he did swear to his application, no further consideration will be given to this claim.

However, by proper exceptions, plaintiff! in error has brought before this eoürt his further claims that the law does not require that the particular question he answered falsely should be answered under oath, and that if it does, the fact falsely stated was not material, and therefore, no ground for conviction under the statute on perjury.

These claims are based upon a literal reading of the statute regulating the issuance of marriage licenses, which seems to give color to such claims.

The law referred to is Rev. Stat. 6390 (Lan. 9966), and was enacted April 25, 1898 (93 O. L. 309), as an amendment of the former act found in 82 O. L. 202.

The present law, in the parts material to this case, reads as follows:

“Every person applying for a marriage license as aforesaid, shall state upon oath, the name, age, residence, place of birth, occupation, father’s name, if known, and the mother’s maiden name, of each of the parties to such contemplated marriage, and shall also state, the number of times either party has been previously married, and in case the bride is a widow, or a divorced woman, her married name shall also be stated, and in addition the name of the person who is expected to solemnize the marriage shall be stated, and if the judge shall be satisfied there is no legal impediment thereto, then he shall grant such marriage license. * * * if any of the persons intending to marry shall be under age, and shall not have had a former wife or husband, the consent of the parents or guardian shall be personally given before the judge, * * * and the judge is hereby authorized to administer any oath [herein] required, and thereupon' issue and sign such license * * *; if any judge shall, in any other manner, issue or sign any marriage license, he shall forfeit,and pay a sum not exceeding one thousand dollars, to and for the use of the party aggrieved.”

Because the law says the applicant shall state under oath certain things, enumerating them, and then proceeds, “and shall also state” certain other things, among them, the number of times either party has been previously married, it is urged that the things he “shall also state,” need not be “under oath,” because those words are not repeated in the latter clause of the statute.

This point is one which an astute lawyer would make, while it would not occur to the casual reader, and thus arises an ambiguity in the statute, which requires construction.

A primary rule in construction and interpretation of statutes is, that the intention of the lawmakers must be ascertained. Where there is ambiguity in any part of the law, the intent must be derived from the whole, and as aids in this search, we may consider repealed statutes. Lewis’ Sutherland, Stat. Constr. Par. 452.

Let us look at the former repealed law, 82 O. L. 202. That started out as follows:

“The probate judge, as aforesaid, may inquire of the party applying for [a] marriage license, as aforesaid, upon oath, relative to the legality of such contemplated marriage; and if the judge shall be satisfied there is no legal impediment thereto, then he shall grant such marriage license,” etc.

Manifestly, under the former law, the probate judge was not required 'to put the applicant upon oath, nor was it provided what inquiries he should make of him. Doubtless, if he did ask the applicant to answer certain questions under oath, and relying upon the answers so given, issued a license, he would’ be protected from the penalty which then, as now, he was liable to, if he issued a license to one not entitled to it. But how would the case be if a legal impediment existed to the marriage, and the probate judge neglected to make any inquiry on that point?

The present law specifically requires certain statements to be made. One of those statements is as to whether the applicant has been previously married. If the applicant is under age, the consent of his parents is required, but, if the applicant .is a minor who has been previously married, such consent is not required. How is the probate judge to ascertain the fact. He takes the statement of the applicant. If that statement is under oath, the probate judge may act upon it, for the statute now reads:

“The judge is hereby authorized to administer any oath [herein] required, and thereupon issue and sign such license.”

If he issues a license to a minor, who has never been married before, without the consent of his parents, he is liable to the penalty provided by tbe statutes. . But doubtless there would be no irregularity in issuing a marriage license to a minor who had been previously married, and if this statute authorizes such fact to be-elucidated by the oath of the applicant, then the probate judge need inquire no further.

Such, we think, was the intention of the legislature, and so we hold that Bev. Stat. 6390 (Lan.. 9966) requires all the statements therein mentiond to be made upon oath.

We also hold that the statement as to the number of times the applicant had been previously married is material.

The legislature having required the statement to be made, leaves no discretion in the probate judge as to submitting it, no matter what the answers to other questions might be.

Again, suppose the applicant should state that he had been married before. That would put the probate judge upon inquiry to ascertain whether such former wife was dead or divorced, and as to these further matters, there is no statute which authorizes the probate judge to rely upon the oath of the applicant, but the judge must still determine whether there is a legal impediment to the marriage. Suppose the applicant says, “I have been married, but am now divorced.” That he is now divorced is a legal conclusion and a careful probate judge would then answer:

“Bring in a certificate to that effect from the court which divorced you, and I will then issue a license to you.'”

Further, it is material that the probate judge be advised as to the number of times the applicant had been married previously, for otherwise he might evasively answer that he had been married before and been divorced, which might be true as to one previous marriage, but not as to another.

Judgment affirmed.


source: Caselaw Access Project

author: PARKER, J.

license: Public Domain

text:
    ADVERSE POSSESSION — LIMITATIONS OF ACTIONS.
    [Huron (6th) Circuit Court,
    1906.]
    Haynes, Parker and Winch, JJ.
    (Judge Winch of the eight circuit, sitting in place of Judge Wildman.)
    Norwalk (City) v. Frances Blatz.
    1. Limitation on Actions iron Damages Caused by Flooding Land.
    For injuries caused by flooding of land with water from sewers and washing away bridges and soil, damages can be recovered for a period of four years only preceding the bringing of the action.
    [For other cases in point, see 5 Cyc. Dig., “Limitation of Actions,” §§ 357-361, 388-390. — Ed.]
    2. Pbesckiptive Right to Flood Lands.
    Recovery from a city cannot'be had by a landowner for such damage causa 1 by flooding plaintiff’s land with water from sewers constructed by the city, when such right has been enjoyed by the city for the prescriptive period, and such damages are the natural consequences of the exercise of such right by the city.
    [Syllabus approved by the court.]
    ERROR to Huron common pleas court.
    Sherman Culp and S. M. Young, for plaintiff.
    E. G. Martin and A. V. Andrews, for defendant.
   PARKER, J.

The action in the court- below was by Frances Blatz against the city of Norwalk. In her petition, she set forth that she was the owner of a tract of land of about seven acres in -the suburbs of the city; that she had been the owner of this land for more than six years, and that over and across this land from time immemorial there had been and then was a natural water course, and until the action upon the part of the city of which she complains, this water course supplied the land with pure and wholesome water sufficient in quantity and quality for all domestic and agricultural purposes. She charges that the defendant has constructed, or caused to be constructed, sewers’in, through and along many of the streets and avenues of said city, — naming them, —and that without any right or authority the city made this water course the outlet for these sewers, and that these sewers carry away from the city the contents of privy vaults and all sorts of offal such as usually go into sewers. She also says that the city has so constructed its drains' and sewers as to throw down-upon these premises and into this water course a greater quantity of water than would naturally flow there, and that this has resulted, in times of freshet, in floods that have carried away bridges upon her premises overspanning this water course, and has resulted in washing away the soil, and in widening the channel, whereby a part of her land has been permanently lost to her. And she says that the offensive matter that has been brought down in the sewers has been thrown upon her lands, destroying the herbage; thát the air has been contaminated and made foul-smelling, disagreeable and unhealthful, and her land rendered unfit for occupancy for dwelling purposes, and for farming and grazing, and that these wrongs have continued during the period of six years next prior to the beginning of the action; and for ■these wrongs she claims damages in the sum of $1,500.

The city denies that it has committed these wrongs, and denies that it has east any more water upon her premises than naturally would flow there; but the city goes further and claims that even if it has by sewers or drains, carried down any more water than would naturally flow upon the premises, it has exercised this right for such a period of time, exceeding twenty-one years, under claim of right, that it has acquired the absolute right to do it, and that the plaintiff has no longer any right to object to or oppose it. This is denied by the plaintiff.

The case was submitted to a jury which brought in a verdict in favor of the plaintiff below for $300. The city filed a motion for a new trial upon various grounds, which motion was overruled; and in its petition in error here it sets forth the various grounds upon which it claims this judgment should be reversed; but in the brief filed by counsel for plaintiff in error the grounds really relied upon are stated, and in discussing the cases, we will follow those assignments of error. They are five in number, and the fourth and fifth we may as well dismiss at once. The fourth is:

“The court erred in the admission and rejection of testimony.”

We find no error in this respect, unless such' as may be covered by another assignment of error involving the subject of the statute of limitations; and that subject will be discussed further on and will not be given attention under this assignment.

Fifth. “The attorney for the plaintiff was guilty of misconduct in his final argument to the jury, as stated in the affidavits filed in support of the motion for new trial.”

We do not find that the affidavits have been made part of the bill of exceptions; therefore, they cannot be considered; and nothing on the subject is otherwise shown.

Going back to the first:

“The verdict of the jury was against the weight of the evidence concerning the right of the city by prescription to maintain its sewage across the premises in question.”

We are not prepared to say that that is so as to the sewage; but it seems clear to us that as to the alleged flooding of the premises by an excessive quantity of water, which was one of the matters submitted to the jury, and presumably one of the things taken into consideration in making up their verdict, the verdict is against the weight of the evidence. That is to say, the casting of water upon these premises in the quantities shown has been continued by the city for so long a period that it has acquired a right to this use, and the land has become subject to this servitude; and this requires a reversal of the judgment; for we cannot tell how iquch of the $300 was allowed on this account, or how much upon the claim which the evidence supports.

A part of the damage was claimed for the washing of the banks and a part for the washing away of bridges. If the city acquired a right to carry down that quantity of water, then the plaintiff’s land was subject to all the natural consequences of the water flowing thereon, and if it washed away some of the banks, or if it carried away bridges that were not constructed so as to withstand floods, that would be one of the burdens the servient land would have to bear; so it follows (since we have found that the verdict as to the right' of the city to convey water down in that way was against the weight of the evidence) that so much of the verdict as is founded upon the loss of bridges and the loss of soil and washing away of the soil is unsupported by the evidence.

, The second assignment is: “ That the verdict of the jury was excessive and could not have been arrived at in any legitimate way, and was. evidently the result of passion and prejudice.”

We find that it was probably excessive on account of the jury adopting such wrong basis for its estimate of the damages, but not because of any passion or prejudice apparent in the record.

One of the questions much debated and apparently carefully considered by the trial judge was as to the statute of limitations applicable to these claims, and to certain elements of damage; and, a retrial being probable, we deem it expedient to discuss this question.

The plaintiff in error complains of the refusal of the court to charge upon this subject as requested, and of the charge as given. The requests refused on account of which complaint is made, are numbers 12 and 17; number 12 reads:

“You should in no case, even if you find for the plaintiff, award any damages for the claimed washing away of bridges, or parts of bridges, which occurred before four years next preceding the beginning of this action. ’ ’

That was refused; number 17 reads:

“In no case is the plaintiff entitled to damage against the defendant on account of the washing away of the banks of the stream or water course in question, which occurred prior to June 19, 1897.”

That would carry it back of the period of four years, and that was refused.

The court charged the jury upon this subject as follows:

“The injuries alleged by -the plaintiff are of two classes — those of a temporary character affecting, as claimed, the value of the use of the premises owned by the plaintiff, and those more permanent in their nature and alleged to have affected permanently the value, of said premises. The claimed temporary injuries can afford a basis of recovery so far only as they occurred within a period of four years just prior to the beginning of this action, the date of which beginning, as I have told you, was June 19, 1901. The measure of damages for any such temporary, injury would be the depreciation, if any, in the rental value of the property while so affected, during said period. As to alleged permanent injuries to the real estate by the washing away of banks of the claimed water course and widening its channel, and by the destruction of any bridge or. bridges, the plaintiff alleges that this occurred within the period of six years just prior to the same date, June 19, 1901, and if she is entitled to a verdict for such permanent injuries, it cannot be enhanced by reason of other injuries caused and occurring prior to the beginning of said period of six years. The measure of such permanent damage would be the depreciation in the permanent market value of the premises affected during the six years. ’ ’

Now, we understand that the court did not charge that the recovery, with-respect to these permanent injuries, would be limited to six years, because the six years limitation under the statute would be applicable, but upon the theory that the twenty-one years limitation would be applicable, and that the plaintiff could not go back more than six years, because she had limited herself in her petition to six years. So that we have to consider whether four years or twenty-one years is the true limitation in a case of this character.

This is clearly an action for trespass, — trespass on the case, or nuisance, — and the statute of limitations applicable is Rev. Stat. 4982 (Lan. 8497), and not Rev. Stat. 4977 (Lan. 8492), which applies to an action for the recovery of title or possession of real property; and it is conceded, we believe, by all, that Rev. Stat. 4982 (Lan. 8497) applies generally, though it is urged by defendant in error, and seems to have been the opinion of the court below, that there are certain exceptional circumstances, even in actions of trespass, where Rev. Stat. 4977 (Lan. 8492) may apply.

Revised Statute 4979 (Lan. 8494) reads:

“Civil actions other than for the recovery of real property can only be brought within the following periods, after the cause of the action accrues. ’ ’

Revised Statute 4982 (Lan. 8497) reads:

“Within four years:'
“An action for trespass upon real property, but in an action for trespass under ground or injury to mines, the action shall not be deemed to have accrued until the wrongdoer is discovered. ’ ’

This section -covers several other classes of actions, the second clause covering actions for relief on the ground of fraud, and the next to the last clause, “An action for an inj.ury to the rights of the plaintiff not arising on contract and not hereinafter enumerated.”

We think this class of actions comes specifically under the first clause read; and, if not, certainly the last clause would cover it. I read the first clause only of Rev. Stat. 4977 (Lan. 8492), because that is all that is applicable here:

“An action for the recovery of the title or possession of real property, can only be brought within twenty:one years after the cause of such action accrues.”

We need not consider what the limitation would have been if plaintiff had elected, as she might have done, to pursue some other remedy; though it may be suggested that if she had proceeded under Rev. Stat. 6448 (Lan. 10025), to compel an appropriation of the property, or the right to cast water and sewage upon her land, the limitation would have been twenty-one years from the time the city began to impose such servitude; and it may be that in such case different rules of limitation as to temporary as well as permanent damage, and as to the measure of damages, would obtain. See cases of Fries v. Railway, 56 Ohio St. 135 [46 N. E. Rep. 516]; Railway v. O’Hara, 48 Ohio St. 343 [28 N. E. Rep. 175] ; Pitts. & W. Ry. v. Perkins, 49 Ohio St. 326 [31 N. E. Rep. 350], where it is held that the twenty-one years limitation applies under Rev. Stat. 6448 (Lan. 10025). We are advised that the action of the court below upon this subject was influenced, and that the court was practically guided by the case of Little Miami Ry. v. Hambleton, 40 Ohio St. 496, a decision by the Supreme Court commission, wherein something is said about the twenty-one years ’ limitation to which I shall refer later.

We think the true rule upon the subject is stated in the case of Mansfield v. Hunt, 10 Circ. Dec. 567 (19 R. 488), in the third clause of the syllabus:

“When a municipal corporation or an individual commits a nuisance or an act of trespass upon the lands of another, and thereby injures such other, and to the full extent that such act will ever injure him, such municipal corporation or individual is liable at once for «uch act and its effects, and the time of the statute of limitations runs from the time of such commission of the nuisance or act of trespass. But where the wrong complained of is a continuing nuisance or trespass, until such continued nuisance or trespass by adverse use ripens into a presumptive right and estate in the wrongdoer, the injured party may bring his action.”

Reading from pages 571 to 572, a part of the opinion of the court:

“It is alleged in the petition, and the record shows, that the city has caused its sewage to be discharged into said stream continuously for twelve years next preceding the time of the bringing of this action, to the special and substantial injury of the plaintiff; and that it has ever since in the same way and' manner continued to corrupt -the waters of said stream to his damage.”

It will be noted that the plaintiff undertook to recover for injuries covering a period of twelve years.

“We, therefore, hold that suit could be brought for such injury at any time within twenty-one years from the completion of said act of nuisance or trespass, causing such injury; but damages could only be ' recovered for injuries resulting therefrom within a period of four years next preceding the bringing of the action. To this extent, such damages would not be barred by Sec. 4982 [Lan. 8497] Rev. Stat. ”

The case of Little Miami Ry. v. Hambleton, supra, seems to us to be confusing. But it must be borne in mind that in that ease the railroad company had been so long in possession of the street in question that it had acquired the right to remain there, and it is doubtful if the plaintiff had any remedy under Rev. Stat. 6448 (Lan. 10025), for the additional burdens amounting to invasion of his rights, such additional burden by the railroad company consisting of a raising of the grade some twenty inches, and putting in an additional track, thereby increasing the servitude. At all events, the plaintiff recognized the right of the railroad company to occupy the street, and sought no remedy but compensation for additional damages, but sought permanent damages on the theory that the railroad company would permanently impose such additional burdens. The judgment doubtless put an end to the right of the plaintiff to seek further remedy by way of damage.

A consideration of this condition will aid us, we think, in determining what was intended by the court in the use of the term “permanent injuries.” It was said in that case — reading the second clause of the syllabus:

“2. That the plaintiff may recover for permanent injury to his property, resulting from a change of grade, or for the additional track, at any time before the right to maintain the track at the' raised grade and the additional track, was complete.
“3. That the right to recover for temporary injury resulting from a change of grade, or for the additional track, is limited to four years prior to the commencement of an action for the same. ’ ’

This syllabus leaves room for the inference that the right to recover for permanent injury might reach back of the period of four years. In the opinion by Judge McCauley, it is said, page 503 :

“As to the temporary injury resulting from the raised track before the lease, the Little Miami Company alone would be liable for that. And this is so because the injury is not continuing in its nature, and having occurred before the lease, the lessee had no connection with it. As to the temporary injury after the lease, both companies might be liable for it. If the lessor without right to do so, created that which at times caused damage, as by overflow of water or any injury merely temporary, and the lessee continued the cause of such injury, both should be liable.
The charge of the court on the trial below was correct, so far as the causes of damages were affected by limitation; that is, that for permanent injury the limitation would be twenty-one years, the whole period during which the acts of the defendants in continuing the cause of such injury was without legal right. And that for temporary injury the plaintiff would be limited to four years before his action for the same.”

The court does not say what it means by “permanent injury” and what was meant is not apparent from a reading of the ease. The case does not disclose what, if anything, was allowed by the jury to the plaintiff for so-called “permanent injuries,” or of what those so-called permanent injuries consisted; we are left very much in the dark on that subject, except that the court treats the overflow of water, or consequences of the overflow of water, as injuries of a temporary character. The injuries, as shown by the proof, were of two kinds, first, those resulting from the overflow of water on the premises of the plaintiff, and consequent injuries of a temporary kind, and, second, injury in its nature permanent, resulting mainly from a change of grade of the railroad, whereby the relative level of the property of the plaintiff and the railroad was changed, and whereby permanent changes in the buildings and improvements on the plaintiff’s property were made necessary, and in consequence of which his property was permanently damaged.

It seems to us that the real ground upon which the court may have made, and, we assume, did make, the distinction between temporary and permanent injury — the real classification — is indicated in the brief of counsel for defendant in error. The counsel were, IToadly, Johnston & Colston. I read a part of that brief:

“Statute of limitations. Within what time was the action barred? The answer to this question depends upon the character of the act or acts forming the basis of the cause of action. If that which is done amounts to a permanent destruction or modification of the lot owner’s easement or right of property in the street, the lot owner’s action therefor will not be barred until the usurpation has continued for a length of time necessary to create a right by prescription, which in Ohio is twenty-one years. But if that which is done be not continuous in its nature or effect, but merely occasional or intermittent, causing specific damage, then each of said acts is a distinct and separate trespass, and an action therefor should be brought within four years. The latter is a mere tort, while the former is the assertion, by disseizin, of title to an incorporeal hereditament belonging to the lot owner. This distinction exists in the present ease.”

And we think that the raising of the grade and requiring a change in, and’a modification of the plaintiff’s buildings, thereby increasing the servitude, or — putting it the other way — affecting the plaintiff’s easement in the street, was the thing referred to by Judge McCauley when he spoke of the relative level of the property of the plaintiff and- the railroad company being broken up and destroyed, and permanent changes and improvements in the buildings of the plaintiff being made necessary.

This made a case of permanent modification of an easement or right of property in a street, a usurpation that would ripen into a right of property in twenty-one years. Therefore, any act tending to the establishment of such permanent right was an act calculated to create permanent injury. The permanent injury referred to is the imposition of a continuing and permanent burden upon the estate of the plaintiff, in the nature of an easement on the one hand and a servitude on the other.

In any case where the permanency of such a burden will be fixed by a judgment, and the plaintiff obtains satisfaction therefor, as in appropriation proceedings, or suit for full compensation for property taken, it is manifest that the damages resulting therefrom should be taken into account; but where the rights of parties are not to be thus fixed and determined, as in a suit for damages for trespass, it is not apparent to us that such damages should be allowed to the plaintiff. This principle was recognized by the court in the case at bar when it limited the plaintiff’s right of recovery for such alleged invasion of her right, amounting to an exercise of an easement, to the temporary effect — that is, the effect upon the rental value of the premises. Manifestly, this is right; otherwise the plaintiff might recover full compensation for a permanent injury resulting from the assertion of an easement or permanent right, and then sue for and recover damages again and again for resulting temporary injuries, or even enjoin the exercise of the right acquired by the full compensation awarded for permanent injuries. This rule is stated in the fourth clause of the syllabus in,the case of Mansfield v. Hunt, supra:

“When the nuisance complained of is of such a character as can be removed by removing the cause thereof, or for the continuance of which a second or third action may be maintained, or which may be abated by the order of a competent court, and the injury to the premises already inflicted is not of a permanent nature, the rule that, in actions for nuisance, the measure of damages is the difference between the market value of the land before and after the occurrence of the injury, is not the rule for assessing damages.”

When it is said in Little Miami Ry. v. Hambleton, supra, that the plaintiff may recover for permanent injury to his property, resulting from a change of grade, or for the additional track, at any time before the right to maintain the raised grade and thé additional track was complete, — that is, at 'any time before twenty-one years adverse exercise of the right, — we do not understand that anything more is meant than that as to such continuing trespass and continuing and permanent results, the four years statute shall not apply, even though the initial step and successive steps of such wrongdoing occurred long "prior to such four-years period; that the trespass being of a continuing nature, so long as it was continued there was constantly arising a fresh wrong and. fresh damage from such continuation of the act.

By the statute the limitation is the same, — that is. four years,— whether the injury from trespass is temporary or permanent; but in the case of permanent injury resulting and flowing continuously s from a continuing trespass, the act causing the injury is necessarily of such a nature that the four-years limitation has no effect upon it or its results so long as the trespass is continued, except to limit the recovery; to damages resulting within four years of the bringing of suit.

This is illustrated by the case of Valley Ry. v. Franz, 43 Ohio St. 623 [4 N. E. Rep. 88], A question was presented in that case as to the statute of limitations. A stream was diverted and its course was so changed — wrongfully, as claimed by the plaintiff below — that it washed the banks of his land to his injury. He brought an action against the railroad company for this wrong. It appeared from his petition that the diversion of this stream had occurred more than four years before the action was begun, and the railroad company interposed by demurrer the bar of this statute. It was also disclosed by the petition that the washing was continuous, because the diverted stream or' current was continuous in its flow; and the court treats it as a continuing trespass, and the injury as a continuing injury. I read the syllabus:

“A railway company, like an individual, may, on its own land and for its own benefit, lawfully cut a new channel * * * if thereby no damage is caused to another; but when it so controls and directs the course of the stream that, as the stream leaves the company’s premises and control, the water is thus thrown across the old channel and against and upon the land of another, and thereby causes damage to such other, the company is liable for such damage; and while the company, after thus causing great damage,, and promising to repair the damage done and stop future damage, continues so to control and direct the stream, and the stream continues to cause additional damage, the company becomes liable for the additional damage, and will continue so to become liable until the company acquires a right to cause such damage; and, until such right is acquired by the company, the four-years statute of limitations will not bar a proper recovery for damages.”

In the course of the opinion by Judge Follett some illustrations are given- from other cases and decisions that I will quote, pages 625, 626:

“When-a man commits an act of trespass upon another’s land, and thereby injures such other at once and to the full extent that such act will ever injure him, he is liable at once for this one act and all its effects; and the time of the statute of limitations runs from the time of such act of trespass. To this extent only is the case of Kansas Pacific Ry. v. Mihlman, 17 Kan. 224, cited here, as the court found that the trespass upon complainant’s land was a single completed act. And the same is true of the case of Williams v. Coal Co. 37 Ohio St. 583.
“But where the act of trespass is a permanent trespass, as the erection of buttresses to support a turnpike road (as in Holmes v. Wilson, 10 Ad. & El. 503), or the erection and maintenance of a permanent building (as in Thompson v. Gibson, 7 M. & W. 456), it may be said to be a continuing trespass or nuisance for which a cause of action-ac-cines, and may be brought at any time until, by adverse use or possession, the trespasser has enforced an adverse claim that has ripened, and has become a presumptive right or a valid estate. ‘Where the trustees of a turnpike road built buttresses to support it oh the land of A, and A thereupon sued them and their workmen in trespass for such erection, and accepted money paid into court in full satisfaction of the trespass: Held, that after notice to defendants to remove the buttresses, and a refusal to do so, A might bring another action of trespass against them for keeping and continuing the buttresses on the land, to which the former recovery was no bar. ’ Holmes v. Wilson, supra.
‘‘ ‘The defendants were liable for continuing the nuisance, although they had no right to enter upon the land to remove it, and that the action was therefore maintainable.’ Thompson v. Gibson, supra.
“An owner of land can rightly do, on his own land, any act that does not interfere with another’s rights; and such act is not illegal. But whenever such act causes injury to another, such owner is liable for the damage so caused, and the cause of action accrues at the time of such damage, and not before. * * *
“And when the owner of land rightly and lawfully does an act entirely on his own land, and by means of such act puts in action, or directs a force against, or upon, or that affects another’s land, without such other’s consent or permission, such owner and actor is liable to such other for the damages thereby so caused the latter, and at once a cause of action accrues for such damages; and such force, if so continued, is continued by the act of such owner and actor, and it may be regarded as a continuing trespass or nuisance; and each additional damage thereby caused is caused by him and is an additional cause of action; and until such continued trespass or nuisance by adverse use ripens into and becomes a presumptive right and estate in the former, the latter may bring his action. ’ ’

It is a cause of action that arises at the time the injury is done. It is, however, subject to the rule that suit upon it must be brought within four years of the time the cause of action accrues. The cause of action does not come under the twenty-one years’ statute. It is not an action for the recovery of land, or for the recovery of compensation for land, but it is an action for recovery on account of injury to land; which cause of action may accrue and be enforced at any time before the right is taken away by the twenty-one years limitation, the particular claim for damages being subject also to the four years limitation; i. e., such damages must have been sustained within four years.

I quote further from this case, page 628:

“In Whitehouse v. Fellows, 100 Eng. C. L. 765, the court held: ‘If the cause of action be, not the doing of the thing, but the resulting of damage only, the period of limitation is to be computed from the time when the plaintiff sustained the injury.’ ”

There are more illustrations to be found in this opinion. We regard it as significant that Valley Ry. v. Franz, supra, decided by the Supreme Court in 1885, takes no account or notice of the case of Little Miami Ry. v. Hambleton, supra, decided by the Supreme Court commission in 1884. If the Supreme Court had understood the rule to be as the court below, in the ease at bar relying upon this earlier authority, seemed to understand it, it need not have pursued this course of reasoning nor cited these authorities to show that the plaintiff’s cause of action was not barred, but might have followed the earlier case. The diversion of the stream was on November 4, 1874, and the action was commenced on August 27, 1881, a period of nearly seven years. The court might have said at once that under the authority of the case of Little Miami Ry. v. Hambleton, supra, since the washing away of the banks and the taking away of the soil was a permanent injury to the premises, the twenty-one years statute of limitations applied; but there is no such suggestion in the case. The petition is sustained upon the. ground that it is a continuing trespass, and that the injury by the washing away of the banks occurred within the four-years period'.

An injury that is transient, like that of a flood, — here to-day and gone tomorrow, doing damage for a time to the soil, or creating bad odors that do not endure, or are not constant, — the effect of which disappears with the cause, and the future recurrence of which may be prevented by the cessation of the trespass or nuisance; so long at least as the right to continue the same has not accrued, may be regarded as in a sense a temporary injury.

It is conceded that ordinarily it is only temporary effects of this character that can be taken into account further back than four years from the bringing of the suit. But here we have the washing away of the banks, and the widening of the channel, and the destruction of bridges, classed by the court below as permanent injuries, on account of which plaintiff may go back any time short of twenty-one years. They are permanent in the sense that, in measuring the damages, the lessened value of the real estate is to be considered, because these things are not restored ’ by the cessation of the trespass or the nuisance; but is the fact that they are not so restored a criterion for determining their permanency, in the sense that the term is applied in Little Miami Ry. v. Hambleton, supra, in giving effect to the statute of limitations? We think not. If it were so, why should not the limitation for permanent injuries in all cases of trespass be fixed at twenty-one years? Why apply it to cases of continuing trespass? What authority can be found in the statute for this distinction? We can find none whatever. If applicable to such eases, what rule could be applied where a trespass has been continued for twenty years and then discontinued so that it is no longer a continuing trespass, and where an action is brought by the person injured for such injuries as the taking away of a bridge, or the taking away of a part of the soil, or the chopping down of his fruit trees, or shade trees, or the like, occurring twenty years before the action is planted?

If the nature of the trespass, as being continuing, has the effect af modifying the statute of limitations, making the twenty-one years statute apply, rather than the four years statute, then it should apply, we think, as well to the case where the trespass is discontinued before suit as to a case where it is continued up to the time suit is brought. The discontinuing of the trespass cannot have the effect of instantly bringing a different statute of limitation into operation upon the cause of action already accrued.

If I go to a neighbor’s land and move away or destroy his bridge, or take away a part of his soil, doing it forcibly, — a simple ordinary trespass — of course it is entirely clear that, notwithstanding the permanency of that injury, in the sense that my ceasing from my depredation will not restore the property, the cause of action would be barred in four years. If I should flood his land and continue to flood it from day to day, or from year to year, trespassing in the manner that is called a continuing trespass, what authority can be found in the statutes for saying that the same rule of limitation upon an action for trespass shall not apply? The statute covers all actions of trespass of all sorts natures and kinds.

Holding this view of the matter, we conclude that the court erred in refusing to charge as requested upon the subject of the statute of limitations, and in charging as it did.

There was one other request to charge that we think was in harmony with the law as we laid it down in the case of the shade trees, which has been before this court some two or three times.

“You are not permitted to arrive at values or conclusions in the absence of evidence either direct or circumstantial. If you are entirely unable to separate and distinguish, under the evidence and the reasonable inference to be drawn therefrom, the extent of, and damage from, the claimed washing of the banks of the stream in question, caused by flood water which would drain through said stream during freshets without regard to any claimed act of the defendant, from the washing, if any, caused by the claimed acts of the city of Norwalk, you should not consider that element. The law will not permit a jury to arrive at a conclusion from mere conjecture or guess.”

We think that is good law and should have been given. Because of the error pointed out, the judgment of the court of common' pleas will be reversed.

Haynes and Winch, JJ., concur.


text:
    FALSE IMPRISONMENT.
    [Summit (8th) Circuit Court,
    September Term, 1905.]
    Marvin, Winch and Henry, JJ.

      John E. Washer et al. v. Harry Iler.
    1. Error in Exercise of Judicial Functions no Defense fob Acts of Mayor BEYOND HIS JURISDICTION.
    A mayor’s court -is one of inferior jurisdiction and the mayor must keep within his jurisdiction. Hence, a mayor, continuing for more than the four days prescribed by Rev. Stat. 7143 (Lan. 10896) the preliminary hearing of one arrested for cutting another with intent to wound,' and committing him to the city prison without mittimus during such period, cannot shield himself from an action for false imprisonment, upon the ground of error in the exercise of judicial functions.
    2, Mayor, Chief of Police and Keeper of Prison Equally Liable for False IMPRISONMENT.
    Imprisonment in a city prison by the keeper thereof, upon order of the chief of police, for five days, upon the continuance of the hearing for seven days, of one brought before a mayor for examination, charged with cutting with intent to wound, is illegal because he was unlawfully detained for more than four days and in a place other than the county jail, without written order of the mayor, designating the city prison" as the place of confinement, contrary to Rev. Stat. 7143 (Lan. 10896); and the mayor, chief of police and keeper of the prison were all concerned in the false imprisonment and are equally liable to respond in damages therefor.
    [For other cases in point, see 4 Cyc. Dig., “False Imprisonment,” §§ 15-27.— Ed.]
    [Proof of this decision and syllabus was submitted to Judge Winch and corrected. — Ed.]
    Error to Summit common pleas court.
    Rogers, Rowley & Rockwell," for plaintiffs in error.
    Holloway & Chamberlain, for defendant in error.

       Affirmed by Supreme Court, without report, Washer v. Iler, 52 Bull. 67; 75 Ohio St. 000.

   WINCH, J.

Plaintiffs in error are the mayor of Akron, its chief of police and the keeper of the city prison, against whom defendant in error recovered a judgment for false imprisonment, from which judgment, error is prosecuted to this court, the only error relied upon being that the petition does not state a cause of action.

It appears that Iler was arrested for cutting with intent to wound and taken before the mayor for examination. The mayor continued the hearing for seven days, and verbally ordered Iler confined in the city prison unti] the hearing, but made out no mittimus or other order for his detention therein. The chief of police ordered the prison keeper to carry out the order of the mayor, and Iler was confined for five days, until he was released on a writ of habeas corpus.

He claims that his confinement was unlawful and in violation of Rev. Stat. 7143 (Lan. 10896), in two respects: First, because he was committed and confined for more than four days; and, second, because he was detained in a place other than the jail of the county, to wit, tin-city prison, without the written order of the mayor, designating that, place of confinement.

It must be conceded that for these reasons the confinement of Iler was unlawful; and it must be further conceded that all three of the plaintiffs in error were concerned in the false imprisonment and all equally liable to respond in damages therefor, under the decision in the case of Leger v. Warren, 62 Ohio St. 500 [57 N. E. Rep. 506; 78 Am. St. Rep. 738], unless the mayor’alone may shield himself from liability by a claim which he makes that he erred only in the exercise of judicial functions, for which he is not answerable. This claim made on behalf of the mayor is not an open question in. Ohio. The mayor’s court is one of inferior jurisdiction, and the mayor must keep within his jurisdiction at his peril. Truesdell v. Combs, 33 Ohio St. 186; Truman v. Walton, 59 Ohio St. 517, 529, 530 [53 N. E. Rep. 57].

Judgment affirmed.

Marvin and Henry, JJ., concur.


author: LAUBIE, J.

text:
    AGENCY — CORPORATIONS.
    [Cuyahoga (8th) Circuit Court,
    July 13, 1904.]
    Marvin, Winch and Lauhie, JJ. ■
    (Judge Lauhie of the seventh circuit, sitting in place of Judge Hale.)

      George H. Worthington v. Cleveland City Ry.
    1. Admissibility of Personal Declarations of an Agent against the Principal.
    Declarations of an agent are not admissible against the principal unless-made in performing the business of the principal; hence when the transfer agent of a consolidated company to secure a personal loan to himself, or other interests which he represents, transfers shares of stock in one of the constituent companies and promises to exchange such shares for shares in the consolidated corporation, such promise is not admissible against the consolidated corporation in an action to compel such exchange.
    [Por other cas-es in point, see 4 Cyc. Dig., “Evidence,” §§ 2292-2298. — Ed.]
    2. Bona Fide Purchaser of Spurious Corporate Stock.
    Stock issued by a company after the consolidation of the company has been completed is spurious and a person who was a stockholder of one of the constituent companies and had his stock transferred into stock of the consolidated company, is presumed to be acquainted with all the facts, and when acting as agent for another person he obtains stoqk so issued, his principal cannot be held to be an innocent bona fide purchaser of such stock. ' •
    [Proof of this decision and syllabus was submitted to Judge Laubie and corrected. — Ed.]
    Appeal from Cuyahoga common pleas court.
    W. W. Boynton, for plaintiff:
    A constituent company remains in existence with the right to transfer stock from one owner to another, until floating indebtedness is paid off, although the consolidated company is organized and in operation as a' railroad company. Compton v. Bailway, 45 Ohio St. 592 [16 N. E. Rep. 110] ; Baüway v. Garrett, 50 Ohio St. 405 [34 N. E. Rep. 493]; Cincinnati, N. 0. & T. P. By. V. Bank, 56 Ohio St. 351 [47 N. E. Rep. 249; 43 L. R. A. 777]; Edison Elec.' Light Co. v. Electric Co. 35 Fed. Rep. 233; Buell v. Báilway, 39 App. Div. 236 [57 N. Y. Supp. Ill] ; Utica Nat. Brew. Co. In re, 154 N. Y. 268 [48 N. E. Rep. 521] ; Bishop v. Brainerd, 28 Conn. 289; Chicago, S. F. & C. By. v. Ash-ling, 160 Ill. 373 [43 N. E. Rep. 373]; 10 Cyc. 302; Noyes, Intercorpo-rate Relations Secs. 58, 59, 62; Killiwell, Stock & Stockholders 383.

      Transfer agent’s duties, and liability of the consolidated company for his false representations. Griswold v. Haven, £5 N. Y. 595 [82 Am. Dec. 380] ; New York & N. H. Ry'. v. Schuyler, 34 N. Y. 30; Farmers <& M. Bank v. Bank, 16 N. Y. 125 [69 Am. Dee. 678]; Armour v. Railway, 65 N. Y. Ill [22 Am. Rep. 603]; Parker v. Saratoga Co. (Supvrs.) 106 N. Y. 392 [13 N. E. Rep. 308]; Railway v. Bank, 56 Ohio St. 351 [47 N. E. Rep. 249 ; 43 L. R. A. 777]; Combes v. Chandler, 33 Ohio St. 178; McNeil v. Bank, 46 N. Y. 325 [ 7 Am. Rep. 341]; Moore v. Bank, 55 N. Y. 41 [14 Am. Rep. 173]; Pomeroy, Leg. Rem. 156-163; Citizens' Sav. Bank V. Blakesley, 42 Ohio St. 645; Pittsburgh, C. C. & St. L. Ry. y. Lynde, 55 Ohio St. 23 [44 N. E. Rep. 596]; Stranahan Bros. Catering Co. v. Coit, 55 Ohio St. 398 [45 N. E. Rep. 634] ; Cincinnati, N. O. <& T. P. Ry. v. Bank, 56 Ohio St. 351 [47 N. E. Rep. 249; 43 L. R. A. 777]; Lickbarrow v. Mason, 2 Term 63; North River Bank v. Aymar, 3 Hill (N. Y.) 262; Bank of Batavia v. Railway, 106 N. Y. 195 [12 N. E. Rep. 433; 60 Am. Rep. 440]; Bridgeport Bank v. Railway, 30 Conn. 231; Meehem, Agency Sec. 739; Story, Agency Sec. 452; Beach, Priv. Corp. Sec. 488; Story, Partnership par. 108.
    The case falls directly within the rule of equitable estoppel, that where one of two innocent persons must suffer from the wrongful act of another, he must bear the loss that placed it in the power of such other to do the wrong. McKenzie v. Steele, 18 Ohio St. 38; Citizens’ Sav. Bank v. Blakesley, 42 Ohio St. 645; Ensel v. Levy, 46 Ohio St. 255 [19 N. E. Rep. 597]; Pittsburgh, C. C. & St. L. Ry. v. Lynde, 55 Ohio St. 23 [44 N. E. Rep. 596]; Schurtz v. Calvin, 55 Ohio St. 274 [45 N. E. Rep. 527]; Stranahan Bros. Catering Co. v. Coit, 55 Ohio St. 398 [45 N. E. Rep. 634]; Cincinnati, N. O. & T. P. Ry. v. Bank, 56 Ohio St. 351 [47 N. E. Rep. 249 ; 43 L. R. A. 777] ; Dezell v. Odell, 3 Hill (N. Y.) 215 [38 Am. Dec. 628] ; Griswold v. Haven, 25 N. Y. 595 [82 Am. Dec. 380]; Farmers & M. Bank v. Bank, 16 N. Y. 125 [69 Am. Dec.. 678]; New York & N. H. Ry. v. Schuyler, 34 N. Y. 30; Continental Nat. Bank v. Bank, 50 N. Y. 575; Titus v. Turnpike Road, 61 N. Y. 237; People v. Bank, 75 N. Y. 547; Fifth Ave. Bank v. Railway, 137 N. Y. 231 [33 N. E. Rep. 378; 19 L. R. A. 331; 33 Am. St. Rep. 712] ; Allen v. Railway, 150 Mass. 200 [22 N. E. Rep. 917; 5 L. R. A. 716; 15 Am. St. Rep. 185]; 11 Am. & Eng. Enc. Law (2 ed.) 422.
    Squire, Sanders and Dempsey, for defendant.

       Affirmed, without report, Worthington v. Railway, 52 Bull 35; 75 Ohio St. 000.

   LAUBIE, J.

The case of George IT. Worthington against the Cleveland City Railway Company is here on appeal. The action is for the purpose of compelling the defendant to issue a number of shares of stock to the plaintiff in exchange for stock of the Cleveland City Cable Company, or, if the court finds that that cannot be ordered done, he asks for judgment for the value of the stock which he claims to hold.

The claim is based upon the fact that the Woodland Avenue & West Side Railroad Company and the Cleveland City Cable Company had consolidated in 1893, and that provision was made by which shares in certain proportion were to be issued ■ to the stockholders of each company by the consolidated company in exchange for the stock of the constituent companies; that after the consolidation the plaintiff obtained these certificates or shares of stock in the cable company from John J. Shipherd, as security upon certain bonds that he had loaned, to John J. Shipherd, doing business under the name of Charles IT. Potter- & Company, and who was also the transfer agent of the consolidated, company, defendant; and that he is entitled, therefore, to have the stock of this constituent company transferred into shares of stock of the consolidated company.

It seems to be assumed on both sides, and, indeed the action of the plaintiff is founded upon the assumption, that this consolidation was authorized by, and subject to, the conditions of Rev. Stat. 3384 (Lan. 5452), which provides for the consolidation of railroad companies, and we, therefore, assume the same.

Now, the plaintiff does not seek such relief, or to recover by reason of any act done by John J. Shipherd for the defendant as its transfer agent, but upon declarations he made at the time he delivered such stock certificates to plaintiff. Shipherd, as the transfer agent, was authorized, when the question as to the amount of stock that a stockholder in the Cleveland City Cable Company was to receive, and the amount of money he was to pay had been determined by the board, to accept and cancel the stock of the Cleveland City Cable Company and to issue to the stockholder the requisite number of shares of the stock of the Consolidated Company to which he was entitled, and blank certificates of stock, signed by the proper officers, were in his possession. The facts are as follows:

Worthington was loaning to Shipherd certain bonds of the Columbus City Railroad Company for the purpose of aiding that company in the discharge of its floating debt, Shipherd being the president of that company; and, as security therefor, and for the return of these bonds, Shipherd delivered to him these certificates of stock in the • Cleveland City Cable Company, — stock which apparently, on its face, belonged to John J. Shipherd himself, and which the defendant claims was spurious. Mr. Worthington did not himself make this contract, but he did it through Mr. Painter. Painter testifies that when this stock was offered to him as security he objected; that he asked Shipherd to transfer it into stock of the Cleveland City Railway Company, the defendant, and that Mr. Shipherd said, no, he could not do that because he didn’t have the money required to pay his proportionate share of the floating debt of that company, referring to the terms of the contract of consolidation which provided that each stockholder of the cable company was to stand his proportionate share of the floating debt of that company, which was to be paid before he could receive his proportionate shares of stock in the new company, and said to Painter, “you take the stock and you can pay it, and I will issue to you the stock of the new company in lieu thereof, ’ ’ or words to that effect. Relying on this promise, Painter took the stock of the cable company for Mr. Worthington as security for the bonds loaned to Shipherd in the name of Charles H. Potter & Company.

It is clear, therefore, that the transfer agent, Shipherd, was not performing or doing any act for either of these companies; he was simply acting for himself in his individual capacity and for his personal benefit, or for the benefit of the company that he represented, located in Columbus, and how can the Cleveland City Railway Company, the defendant, be responsible for that declaration, and be compelled to issue stock in lieu of such cable company stock, or to pay its value.

Under what circumstances would the declaration of Mr. Shipherd as its transfer agent bind the defendant company? It would only bind the company in ease he was acting for it, so as to constitute the declaration a part of the res gestae — a part of the act itself. •

This rule is stated in the brief of the eminent counsel for the plaintiff in this case. In his brief he refers to the case of Union Cent. Life Ins. Co. v. Cheever, 36 Ohio St. 201, 208, and to the opinion delivered by himself while he was a distinguished member of the Supreme Court of this state, as follows:

“It is because the declaration of an agent is a verbal act and part of the res gestae, that it is admissible, and whenever what he did is admitted in evidence then it is competent to prove what he said about the act while he was doing it.”

In that case it was held that Cheever was not acting for his wife at the time he made the declaration, and, therefore, his declaration did not bind her and was not admissible against her. Well, let us apply that rule here. What was Shipherd doing for the defendant company? If he was acting solely for himself, endeavoring to make a contract with Worthington for his own benefit, or the benefit of the Columbus City Railroad Company, how is. his declaration a part of the res gestae of any act done for the defendant, and admissible against it? He must have been acting for the defendant at the time, doing some act for it, transacting its business, or his declarations are not admissible against it. The universal rule is, The declarations of an agent are only admissible against the principal when made in performing the business of the principal, or professing to act for the principal in the doing of some act within the apparent scope of his authority.

Now, in this case, Mr. Worthington, or Mr Painter, as representing him, did not go to either the office of the defendant or the agent of the defendant for the purpose of obtaining information upon which he might rely in the making of a contract with some third party in regard to this stock. He went to find John J. Shipherd, who in the contract, as appears from the testimony, represented the Columbus City Railway Company, if he represented anyone but himself, for the purpose of loaning to Shipherd, or to the Columbus City Railway Company, these bonds, and receive in security therefor whatever Mr. Ship-herd might offer. Shipherd offered stock of another company first, and subsequently offered this stock of the Cleveland City Cable Railway Company, and this declaration was made simply to induce Mr. Painter to enter into a personal contract with him, John J. Shipherd.

That declaration therefore is not admissible as testimony against the defendant, as it had no relation to any act that Shipherd was performing for the defendant, and could not be any part of the res gestae of an act done for the defendant.

But aside from this there is still another complete objection to plaintiff’s action.

In cases where the declaration of an agent is sought to be used to bind a principal, it can only be used in favor' of an innocent Iona fide party or purchaser. Was Worthington of that character of person or party? He was Chargeable with whatever knowledge the party to whom he turned over his business to transact for him had— chargeable with whatever knowledge Mr. Painter had, who was to transact the business for him, whom he authorized to loan the bonds and to select and approve the security. Was he, therefore a bona fide innocent party ?

Under such circumstances a purchaser is not an innocent bona fide party entitled to rely upon statements made, when the facts known to his agent would put him upon inquiry, and still more so, if such facts would make it apparent that the stock offered to him was spurious. How was it in this case? Painter had knowledge of all the conditions surrounding the transaction; he not only knew that the consolidation had taken place in June, 1893, and was perfected by the election of directors in January, 1894 — he not only knew that, — but he was a stockholder of one of the constituent companies, the Woodland Avenue & West Side Company, and he had had his stock transferred immediately after the consolidation. He knew all the circumstances and the conditions of this contract of consolidation. He knexv when the directors were elected; he was a stockholder in the new company at that time, and undoubtedly voted at such election. He is chargeable with all the knowledge which the law would give him, of the effect of such consolidation; and plaintiff cannot escape that, as the knowledge of such an agent is imputed to his principal.

Now,- what was the' effect of the consolidation? Counsel on both sides refer to Rev. Stat. 3384 (Lan. 5452), which all parties agree and claim applies to and governs the consolidation of street railroads, and it provides:

“Upon the election of the first board of directors of the company created by the agreement of consolidation, all and singular, the rights, privileges, and franchises of each of the companies to the agreement, and all the property, real, personal and mixed, and debts due on account of subscriptions of stock, or other things in action, shall be deemed to be transferred to and vested in such new company, without further act or deed; all property, rights of way, and other interests, shall be as effectually the property of the new company as they were of the companies parties to the agreement; the title to real estate, either by deed, gift, grant, or by appropriations under the laws of this state, shall not be deemed to revert or be impaired by reason of the consolidation; but all rights of creditors, and all liens upon the property of either of such companies, shall be preserved unimpaired, and the respective companies may be deemed to be in existence to preserve the same.”

It is only, therefor, as to creditors that the constituent companies remain alive. The rights, privileges and franchises of each were transferred to, and vested in, the consolidated or new company, and consequently were forever gone from those constituent companies, and the constituent companies remained in existence only so far as their creditors were concerned, and to preserve unimpaired liens upon their property.

In State v. Sherman, 22 Ohio St. 412, it was held, in the third head of the syllabus:

“Where a corporation, in pursuance of an act of the legislature, transfers or conveys its franchise to be a corporation to others, the transaction, in legal effect, is a surrender or abandonment of its charter by the corporation, and a grant by xhe legislature of a similar charter to the transferees or purchasers; and the charter so granted is subject to all the provisions of the constitution existing at the time it is so granted. ’ ’

So that beyond doubt, vdien the first board of directors of the new company was elected and installed, from that moment every right, power, privilege and franchise of the constituent companies was abandoned, and their charters surrendered to the new company, and their existence terminated, save only so far as the rights of creditors were concerned.

Mr. Worthington, through his agent, therefore, knew that the cable company had transferred and surrendered its charter and corporate power in January, 1894, and from that time on, the power to issue stock by the Cleveland City Cable Company had been surrendered and transferred along with all of its other franchises to the consolidated company. Yet, through Mr. Painter, he received certificates of stock which he now seeks to enforce against this defendant company, that purport on their face to have been issued by the Cleveland City Cable Company to John J. Shipherd from a year to a year and a half after the election of this board of directors, and after the surrender of its franchise and powers and rights to the new company.

Upon the face of these "certificates, therefore, it was apparent that the stock was spurious. What inquiry did he make in regard to it ? All the inquiry Painter testified he made, was to go to a certain bank to find out whether the bank had received some of the Cleveland City Cable Company stock as security, and finding that the bank had taken some stock of that company as security, he took this. He never even asked Shipherd, “How does it come, Mr. Shipherd, that, a year and a half after this consolidation and election of directors, this cable company can issue stock? Of this stock you are offering me, one part is dated January, 1895, and the other along in October and November, 1895, from a year to a year and a half after the election of these directors — ■ how does it come that it issued this stock? How is that valid?” He made no inquiry in that regard. All he did, was to inquire at some bank if it had received as collateral, stock of the cable company. Plaintiff was not, therefore, an innocent and 'bona fide purchaser.

For these reasons, the judgment will be in favor of the defendant, and the petition of the plaintiff dismissed.


author: COOK, J.

text:
    ENJOINING NUISANCE.
    [Carroll (7th) Circuit Court,
    October Term, 1905.]
    Cook, Burrows, and Laubie, JJ.
    Angeline Downs v. Greer Beatty Clay Co.

      X. What is Nuisance Depends on Particular Pacts.
    The business of burning brick is a lawful one, and whether or not it is a private nuisance, depends upon the circumstances of each particular case.
    [Por other cases in point, see- 6 Cyc. Dig., .“Nuisance,” §§ 32-40. — -Ed.]
    2. When Lawful Business will be Enjoined as a Nuisance.
    A court of equity will not ordinarily grant an injunction to restrain the prosecution of a lawful business on the ground that it is a private nuisance until the plaintiff has established his right by an action at law.
    [Por other cases in point, see 6 Cyc. Dig., “Nuisance,” §§ 104-109. — Ed.]
    3. Effect of Adequate Remedy at Law.
    Where a business complained of as a nuisance is a permanent one and the damages to adjoining property can be ascertained with reasonable certainty and assessed in solido to the complaining party, such business will not be enjoined where an injunction would be ruinous to the business of the defendant and of small benefit to the plaintiff.
    [For other cases in point, see 5 Cyc. Dig., “Injunction,” §§ 36-45; 6 Cyc. Dig., “Nuisance,” §§ 97-103. — Ed.]
    [Syllabus by the court.]
    Appeal from Carroll common pleas court.
    Hart & Koehler, for plaintiff:
    The conversations between the officers of the defendant company and John Downs now deceased, husband of the plaintiff, not in the presence of the plaintiff, and the lease made by him, waiving damages, while he was owner of the property in question, and before his death, not signed by plaintiff as his wife, are not admissible to bind the plaintiff who now holds the property by assignment of dower. 14 Cyc. 292; Gove v. Gather, 23 Ill. 634 [76 Am. Dec. 711]; Hart v. Mc-Collum, 28 Ga. 478; McArthur v. Franklin, 16 Ohio St. 193; Derush v. Brown, 8 Ohio 412; Tibbetts v. Manufacturing Go. 12 S. C. 465.
    The plaintiff is not estopped to maintain this action to restrain a nuisance interfering with the occupation of premises set off to her as her dower right, after the death of her husband, in property upon which he had individually given a mining lease, waiving damages, by reason of the fact that she received rents and royalties accruing under said lease, between the death of her husband and the assignment of her dower in lieu of her dower right for such period. Viele v. Judson, 82 N. Y. 32; Williamson v. Jones, 43 W. Va. 562 [27 S. E. Rep. 411; 38 L. R. A. 694;. 64 Am. St. Rep. 891] ; Hunt v. Reilly, 24 R. I. 68 [52 Atl. Rep. 681; 59 L. R. A. 206; 96 Am. St. Rep. 707] ; 14 Cyc. 931.

      The easting of smoke and gas upon the property of another to the annoyance and damage of the owner is a nuisance. Susquehanna Fertilizer Co. v. Malone, 73 Md. 268 [20 Atl. Rep. 900; 9 L. R. A. 737; 25 Am. St. Rep. 595]; Kinkead, Torts Sees. 436, 653; Boss v. Butler, 19 N. J. Eq. 294 [97 Am. Dec. 654] ; Cooper v. Hall, 5 Ohio 320; Columbus Gas L. & C. Co. v. Freeland, 12 Ohio St. 392; Norcross v. Thoms, 51 Me. 503 [81 Am. Dec. 588]; Pennsylvania Lead Co.’s Appeal, 96 Pa. St. 116 [42 Am. Rep. 534]; Pennoyer v. Allen, 56 Wis. 502 [14 N. W. Rep. 609; 43 Am. Rep. 728] ; Bohan v.- Gas-Light Co. 122 N. Y. 18 [25 N. E. Rep. 246; 9 L. R. A. 711]; Munk v. Sanitary Wks. Co. 5 Dec. 548 (7 N. P. 542); Metzger v. Hochrein, 107 Wis. 267 [83 N. W. Rep. 308; 50 L. R. A. 305; 81 Am. St. Rep. 841] ; Boss v. Butler, 19 N. J. Eq. 294 [97 Am. Dec. 654] ; McClung'v. Coal & Coke Co. 1 Dec. 247 (31 Bull. 9).
    Care and skill in conducting the business is no defense. Susquehanna Fertilizer Co. v. Spangler, 86 Md. 562 [39 Atl. Rep. 270; 63 Am. St. Rep. 533]; Frost v. Phosphate Co. 42 S. C. 402 [20 S. E. Rep. 280; 26 L. R. A. 693; 46 Am. St. Rep. 736]; Laflin & Band Powder Co\ v. Tearney, 131 Ill. 322 [23 N. E. Rep. 389; 7 L. R. A. 262; 19 Am. St. Rep. 34]; Hurlbut v. McKone, 55 Conn. 31 [10 Atl. Rep. 164; 3 Am. St. Rep. 17] ; Bodenhausen v. Craven, 141 Pa. St. 546 [21 Atl. Rep. 774; 23 Am. St. Rep. 306] ; Columbus & H. Coal & Iron Co. v. Tucker, 48 Ohio St. 41 [26 N. E. Rep. 630; 12 L. R. A. 577; 29 Am. St. Rep. 528]; Fitzpatrick v. Montgomery, 20 Mont. 181 [50 Pac. Rep. 416; 63 Am. St. Rep. 622],
    Injury from other causes also will not defeat the action of the injured party. Frost v. Phosphate Co. 42 S. C. 402 [20 S. E. Rep. 280; 26 L. R. A. 693; 46 Am. St. Rep. 736],
    The fact that the business is a lawful and proper one is no defense. Hauck v. Pipe Line Co. 153 Pa. St. 366 [26 Atl. Rep. 644; 20 L. R. A. 642; 34 Am. St. Rep. 710]; Norcross v. Thoms, 51 Maine 503 [81 Am. Dec. 588],
    The fact that the offensive premises and works are of great value will not defeat the injured party from restraining its operation. Mc-Clung v. Coal & Coke Co. 6 Cire. Dec. 243 (9 R. 259).
    Injunction will lie .especially where the nuisance affects the residence or home of the complainant. Boss v. Butler, 19 N. J. Eq. 294 [97 Am. Dec. 654]; Collins v. Cleveland, 2 Dee. 380.
    Locality of property will not deprive the injured party of remedy. Susquehanna Fertilizer Co. v. Spangler, 86 Md. 562 [39 Atl. Rep. 270; 63 Am. St. Rep. 533].

      Clark & Clark and William Lynch, for defendant.
   COOK, J.

This action is before ns on appeal. The défendant, the Greer Beatty Clay Company, is engaged in the manufacture of hollow ware and glazed brick in the Sandy valley in this country. The Sandy valley was one of the richest and most beautiful valleys for agricultural purposes in Ohio, but unfortunately, possibly, under the hills which enclose it on both sides is an inexhaustible bed of the finest fire clay, overlaid with a vein of the best bituminous coal. A score of years ago this clay and coal began to be developed, and numerous brick, hollow ware and sewer pipe works were erected; among the rest the works of the defendant, of ten kilns costing many thousands of dollars, were built in 1902-3.

In the twenty miles of this valley situated in this county there are many large factories engaged in this business.

In the manufacture of this ware it is necessary to use coal containing some sulphur in the burning, and salt in the glazing process, the consequence of which is, that sulphuric acid gas and hydrochloric acid gas mingle with the smoke from the smoke stacks and spread over the contiguous territory.

The plaintiff has a life interest in fifty acres of land and a large dwelling house, old but in fair condition, as -a country home, with flower and vegetable gardens connected with it. This homestead and grounds were set off to her as her dower interest in her husband’s estate at her special request, soon after the factory of defendant was built. The works of defendant are situated about six hundred feet away from the house and garden, and the evidence shows that at times the smoke from the stacks reaches the premises of the plaintiff to the injury of the shrubbery and crops, and to some extent interferes with the comfort of-the inmates of the house; but the evidence does not show that the health of the occupants is affected, or that the smoke is a serious annoyance.

This action- is to enjoin defendant from operating its works in such manner as to permit the smoke and gases to enter upon the premises of plaintiff as herein set forth.

It is conceded by plaintiff that the factory of defendant is of the most improved character; that the appliances used are fully up to the latest standard; that the manufacture of glazed brick and hollow ware is a large industry and conducted in all parts of the country; and that the use of bituminous coal and salt are absolutely necessary and that there are no known means by which smoke from the stacks to some extent charged with these gases can be kept from spreading, at times, over a large extent of territory, doing some injury to herbage and causing some discomfort.

Under these circumstances is plaintiff entitled to an injunction as prayed for ?

The manufacture of glazed brick, hollow ware and sewer pipe has for many years been one of the most extensive industries, and is a lawful business, never having been classed among those trades that are held to be a nuisance per se.

That the industry may be a nuisance depending upon its location, the manner of conducting it, and other circumstances there can be no question; and each ease must depend, therefore, upon its own circumstances. Wood, Nuisances Sec. 515, etc.; 21 Am. & Eng. Ency. of Law (2 ed.) 692. There are many localities where such manufactories would not be considered a nuisance while there are others where it would be a nuisance. A person or corporation would not be permitted to carry on such a business with its attendant vapors and smoke in a residence portion of the city while in other parts of the same city it would be perfectly legal to do so. Another matterAf importance is the conduct of the party complaining. Was the brick yard built close to the residence of the complaining party or did he place his residence contiguous to the brick yard ? Who occupied the territory first ? This may not be of much importance in an action for damages but is of importance when an injunction is sought.

This factory was not situated in or adjoining a city, but was in a country district where other manufactories of a similar character were situated previous to its location. While the dwelling was there previous to its location, yet plaintiff saw fit to select it as her dower interest with full knowledge of the location, character and effect of the business. She not only asks damages for injury to her premises but also seeks an injunction to restrain the prosecution of this business. Under such circumstances, should a court of equity hold that a business lawful in itself is a nuisance against this plaintiff?

The granting of an injunction in eases of alleged nuisance, is governed by fixed principles. The right must be clearly made out; the nuisance must be clearly established, and that the complaining party in his person or property is affected to a substantial degree.

Furthermore the mischief to the plaintiff or right in his property must be irreparable, in the sense that he has no adequate remedy at law’.

In the case of McCord v. Iker, 12 Ohio 388, it is said, although the restraining of an established nuisance “is an admitted ground of equity jurisprudence, courts of chancery will carefully abstain from interference, where the injury will support an action at law, unless the party seeking such aid brings himself within the clearest principles of equitable relief.1 ’

In the case of Goodall v. Crofton, 33 Ohio St. 271 [31 Am. Rep. 535], it is held:

“On the petition of a. landowner, complaining that certain steam power and machinery operated by another on adjoining land, is a nuisance, and injunction should not be granted unless a clear case of nuisance and irreparable injury be made out.
“When a party who complains that a business, lawful per se, is a nuisance, and affects his property injuriously by reason of the manner in which it is conducted, has an adequate remedy in an action for damages, he must establish his right to relief at law, before equity will interfere by injunction.’1

In the opinion, page 274, it is said:

“It would b'e almost impossible to enumerate the cases in which courts of equity, in this and other countries, have interfered or refused to interfere in cases of alleged nuisance, public or private. It will suffice to say, the result of all these cases seems to be, that when the right is clearly made out, and the nuisance established, a court of equity, in ease of private nuisance, will interfere to prevent that which violates the rights of another in his property in an essential degree.
“In this state, however, we understand the^ rule to be, that a court of equity will only interfere to restrain an alleged nuisance, when the mischief to the plaintiff’s property, or rights in his property, are irreparable, and there is no adequate remedy at law to make reparation. Although the restraint of an established nuisance ‘is an admitted ground of equity jurisdiction,’ that branch of the law ‘will carefully abstain from interference where the injury will support an action at law, unless the party seeking such aid brings himself within the clearest principles of equitable relief.’ McCord v. Iker, 12 Ohio 388. To the end that right may be done and injury prevented, courts having jurisdiction in equity will ■ determine each case, as it arises, upon its own facts and circumstances. When, from the nature of the ease, and the right claimed to be infringed, no adequate remedy can be had in the courts of law, equity will entertain the action; where the thing sought to be prohibited is not a nuisance per se, but may, under some circumstances, prove so, the court will not interfere without a previous trial at law. 1 Grant’s Cases, 412; 19 Eng. L. & E. 639.”

Considering the character of this industry, its location, the fact that it was there before the plaintiff selected the homestead as her dower interest, the nature of the injury and the other circumstances, can it be said a clear case of nuisance is made out? Columbus Gas Light & Coke Co. v. Freeland, 12 Ohio St. 392; Gilbert v. Showerman, 23 Mich. 448.

Again, is the injury irreparable? If the plaintiff has an adequate remedy at law then her injury is not irreparable. What difficulty would there be in assessing plaintiff adequate and reasonably certain damages in an action at law ? The injury to her premises are easily ascertainable. Diminution of annual rental is always a proper subject of inquiry, and we think in a ease of this character when the business is permanent the plaintiff might recover for the depreciation of her interest in the premises.

But it is*said the injury being a continuous one, the remedy by injunction is necessary to prevent a multiplicity of suits.

As we have seen, the injury, if. any exists, is a permanent one and damages could be assessed in solido. Story, Equity Sec. 5529b; Goodall v. Crofton, supra.

There is another circumstance that always appeals to a court of equity in eases of this character, and that is, what would be the relative effect upon the parties. Would the granting of the injunction entail much more injury upon the defendant than benefit to the plaintiff ? If so, then the injunction should be refused and the parties left to their action at law.

The injunction in this case is, refused and as the plaintiff has a claim in her petition for damages, the cause will be remanded to the court of common pleas to determine whether or not her petition states a good cause of action at law, and for further proceedings.

Burrows and Laubie, JJ„ concur.