text:
    FORFEITURE OF STREET RAILWAY GRANTS.
    [Circuit Court of Lucas County.]
    The City of Toledo v. The Toledo Railway & Light Co.
    Decided, October 3, 1903.

      Street Railways — Franchise for — Time Limit for Building the Road —Conditions Precedent and Subsequent — What Constitutes Completion of a “Fill” — Forfeiture of Grant— Sujt for, Must be Based Upon Acton of Council — Provisions for, Strictly Construed Against the Municipality — Waiver of Conditions for — Damages—Injunction.

    A street railway grant provided that the road should be built and in operation within six months from the time the city had completed certain grading; otherwise all rights and privileges thereby granted should be forfeited. A large part of the road was built and put in operation. Ten years later the city caused the stipulated grading to be done, which was immediately accepted and paid for. During the winter months following the “fill” thus made settled from six inches to one foot. It was leveled up, and the construction of the road begun, when work was stopped by the mayor and police on the ground that the time limit had expired, and suit was brought to enjoin further work and forfeit the franchise as to this part of the route. Held:

    1. That the completion of the grading contemplated by the ordinance granting the franchise should date, not from the acceptance of and payment for the work, but from the date of its being put in such condition that a street railway- could safely be built upon it.
    2. The rule requiring that forfeitures be strictly construed against those for whose benefit they are provided, together with the entire failure of the city to show that any damages have been suffered by reason of the delay, and the further fact that if any part of the franchise is to be forfeited, it must be forfeited as a whole, including the portion of the road which was built ten years before the city did the stipulated grading, forbids the granting of the relief asked.
    3. Moreover a suit for the forfeiture of such a franchise will not lie, unless based upon a determination by the city council that a forfeiture should be declared.
    Hull, J.; Haynes, 'J., and Parker, J., concur.
   This action comes into this court on appeal. It was brought by the City of Toledo to enjoin the defendant from constructing a piece of railroad track, about a quarter of a mile long, on Central avenue in this city, and to have declared a forfeiture of all the rights, franchises and privileges of the street railway company in that street, for the purpose of building, maintaining and operating a street railroad. The claim of the plaintiff is, as set forth in the petition, that on the 14th day of December, 1901,' the common council of the City of Toledo passed an ordinance giving and granting to The Metropolitan Street Railway Company, its successors or assigns (of which the defendant in this action is the successor), the right to construct, maintain and operate the same over Central avenue from Cherry street to the westerly limits of the City of Toledo, being a distance of about one mile, and running between Cherry street and Collingwood avenue a portion of the way. The ordinance, as set, forth in the petition, required that the street railway company should complete the construction of the street railroad and have it in operation by September 1, 1902; but it contained further provision that the City of Toledo was to grade and fill in that portion of the route that lay between Cherry street and Collingwood avenue — which was lower than the grade line, there being a ravine at that point which it was necessary to fill in and grade before the street railroad could be properly constructed. And it is set forth in the petition that the ordinance provided that the city was to do this work of filling in and grading Central avenue, and that if the city did not complete the work of grading and filling in within the time limited, to-wit, by the first of September, 1902, the time limit for the building of the street railroad, then that the railroad should be built and its operation commenced within six months after the city completed the filling and grading of this portion of the route. And the petition sets forth and complains that the street railway company did not build its track on this part of the route lying between Cherry street and Collingwood avenue, within six months after the city had completed its fillings in and grading, but that on the 7th day of July, 1901, it had commenced the work of laying its tracks and building a street railroad over this part of its route, the petition alleging that the city had completed its work of filling in and grading more than six months prior to the first day of July, 1901; and therefore it is claimed by the city in its petition that the street railway company has forfeited all of its rights and franchises in this portion of the route lying between Cherry street and Collingwood avenue, and the petition asks that such forfeiture be declared and asks that the street railway company be enjoined from building and constructing said railroad at that point.

The ordinance passed by the City of Toledo on the 14th day of December, 1891, contained substantially the provisions set forth in the petition, and, that I may be exact, I will quote from the ordinance this provision:

“Section 4. The work of the construction of said extension of said street railway shall be under the direction of the city civil engineer, and shall be commenced as soon as practicable after the passage of this ordinance, and shall be completed and in operation on or before September 1,1892; Provided, that work thereon shall not be required until after said Central avenue is graded to the established grade between Cherry street and Collingwood avenue, and in ease the same is not graded and the road herein authorized to be constructed is not completed within the date named, then said extension shall be constructed and put in operation within six months from the completion of said grading. ’ ’

And Section 6 of said ordinance provides:

“Section 6. If said company, its successors or assigns, shall fail or refuse to comply with the conditions of this ordinance, or with an ordinance entitled ‘An ordinance to grant to the Metropolitan Street Railway Company the right to reconstruct its tracks and extend its charter,’ passed March 11th, 1889, or the general ordinances of the city of Toledo regulating the operation of street railways, and amendments existing or hereafter made thereto, so far as the same are applicable and not inconsistent with the conditions of this ordinance, the rights and privileges hereby granted shall be deemed forfeited and the City of Toledo shall have the right to re-enter and take possession of the same to the exclusion of said company. Passed December 14, 1891.”

The grading of this portion of the street was not done by the city for nearly ten years after the passage of the ordinance, but was let by contract in the year 1901, and the work was , accepted by the city council on the 11th day of November, 1901, by formal resolution of the council, and the contractor ordered paid. So that more than six months had expired from the time this work was accepted by the city when the street railway company began its work of constructing the street railroad on this part of the route, to-wit, on or about the 7th of July in the following year, 1902. It is claimed by the city that on account of this failure to comply with this provision of the ordinance, that the whole of this road or route — about one mile in length-should be completed and in operation within six months after this filling and grading had been done; that all of the company’s rights as to this part of the road have been forfeited.

It is claimed by the defense that this is not true as a matter of law or fact; and, further, that no forfeiture has ever been declared by the city; also as a matter of fact, notwithstanding its acceptance by the council, that this work of filling and grading was not done by the city and finished and completed within six months before the commencement of this work by the railway company. Evidence was offered, both by the city and by the defendant.

It seems that prior to July, 1902, the street railway company had built and completed and had under operation about three-fourths of this entire route — about three-quarters of a mile. The company had not waited for the city to do this filling and grading before commencing the building of the street railroad, and, within probably six months after the ordinance was passed, the entire route as contemplated by this ordinance had been built, except that portion which could not be built on account of the condition of this grading, and cars had been maintained and operated upon this portion of the road for nearly ten years before this grading was done by the city. After the grading had been completed and finished, which the railway company claims was in fact early in the spring of 1902, the company, in the fore part of July, commenced the work of building the street railway at this point, but were stopped by the mayor of the city and the police, and the work of building a railroad there was prevented by policemen on the ground, for a period of about ten days, until this action was commenced by the city solicitor, to have determined in a court of equity the rights of the respective parties.

Ah issue of fact, then, in the case is: whether the city had finished and completed its work of filling and grading as contemplated by this ordinance, more than six months before the work was commenced by the street railway company over this part of the route f

Several witnesses were called by the plaintiff, and some by the defendant. The Assistant City Engineer, Mr. Ridenour, was called by the city, and testified that it was necessary after such work as this had been done that it be given considerable time to settle before it would be leasable to lay a pavement upon the street, or to build a street railroad upon it. This grading was accepted by the city in November, 1901. He testified that as a rule they gave some six months for settling before they did such a thing as to pave a street, and that it should be allowed an entire winter for settling, in his judgment, and that before a street railroad should be built there should be a solid substructure.

Mr.' Miller, who was an inspector in the employ of the city ' during a portion of the time that this grading was going on, testified that he saw it in the spring of 1902; that there were holes in it and that it had settled in spots. It was shown on the part of the defense that complaints were made by some of the citizens who resided upon the line of the street, that the grading had not been properly done.

Mr. Sheehan, the contractor who did the work for the city, was called as a witness and testified that he filled in with almost anything that he could get — sand, quicksand, and the roots of trees, rubbish, street sweepings — and anything that would fill a hole; that when the engineer, or the proper officer, pronounced the work up to grade it was accepted by the council and he got his pay, but that the grading had no sooner got up to the grade line than it began to settle, and it settled from one foot to two feet at various places during the winter months, and he testified that it was a usual and ordinary thing for such work to settle in the six months that follow the doing of the work, so that it was necessary to go over it again and bring it up to the grade line, and lie testified that the street commissioner did work upon this street during the winter, filling it up here and there as it settled ; and, after it had been accepted by the council, he testified that he went back and filled in at places, and did work in that way in the latter part of November; and he says that the commissioner filled in some late in the winter; that it had settled at the sewer connection points, and he says that the street was at that time below grade probably from six inches to fifteen inches at different places, and that in the spring of that year it was from six inches to one foot below grade.

There was other testimony on this question, and we find that the overwhelming weight of the evidence is that this work of grading in question was not completed and finished as contemplated by this ordinance, until the spring of 1902, a short time before this work was commenced by the street railroad company.

The acceptance of the work by the city council, by resolution, and the direction to pay the contractor, would not bind the street railway company, the other party to the contract made by by the ordinance. The ordinance imposed upon the city the duty and the burden of filling this in to the grade line and completing it, and it gave the street railway company the privilege of waiting six months after that filling was completed, or waiting so long as they pleased, so that the railroad was completed and in operation within six months after the grading was finished by the city, the ordinance providing “that work thereon shall not be required until after said Central avenue is graded to the established grade between Cherry street and Collingwood avenue, and in case the same is not graded and the road herein authorized is not completed within the date named, then said extension shall be constructed and put in operation within six months after the completion of said grading. ’ ’

We hold that that language in the ordinance requiring the city to complete this grading, means that it shall be in fact completed — not that it shall be accepted by the city council, but that it shall be put in such condition as that it would be proper and safe to build a street railroad upon it. This was part of the work which the city was to perform in the construction of this improvement and means of travel in the city, and for which the street railway company had been given this grant by the ordinance. The city was required to do this filling in such a way that it would be safe and practicable to construct a street railroad upon it, and when the filling was done with quicksand and roots and street sweepings, and with any rubbish, as the contractor testified that he could get, the city had not finished the work as contemplated by the ordiance, and it began to settle immediately, and settled from six inches to a foot and two feet, in different places, as shown by the evidence. It was conclusively shown that this part of the street on Central avenue between Cherry street and Collingwood avenue was not in a fit condition to build and construct a railroad upon in the fall or winter of 1901-2, and it was not in such condition until the spring of 1902, a very short time before the work of building the railroad was commenced by the street railway company.

To warrant a court in declaring a forfeiture of the rights and privileges granted to a company under an ordinance of this kind, the evidence must be clear and conclusive that the company has violated the provisions of the ordinance in such a manner as to warrant a forfeiture; a court would not forfeit the privileges so granted or take from the company the right to build or finish building a street railroad upon any doubtful case. The authorities upon this question are numerous.

It should be noted that the city does not ask for the forfeiture of this entire grant and of the rights and privileges extending along this entire route, but only of a portion of the line. There is no provision in the ordinance for a forfeiture of a portion of the grant — the only provision is for a forfeiture of all the rights and franchises. The city has no authority under this ordinance to select such a portion of the route as it sees fit and ask to have a forfeiture declared upon it; if it is entitled to a forfeiture, it is for all. Provisions of forfeiture are to be strictly construed, and have been from time immemorial — from Shyloek’s ease and before, down to the present time.

There is no provision in the ordinance for a partial forfeiture. Forfeitures are not favored by courts, and especially where it appears that the provision of forfeiture is put into a contract, agreement or franchise only to secure the performance of the work, and forfeiture' of the property or of the rights of a. person, natural or artificial, because of a slight failure to perforin all the provisions of the contract, is'not favored by the courts, and where- compensation may be had in lieu of forfeiture, a court of equity will grant that instead. As the Supreme Court of this state has said in 33 O. S., 459 (The Union Central Life Ins. Co. v. Pottker):

“Foi’feitures are odious, and there must be no cast of management or trickery to intrap a party into a forfeiture.”

And in 53 O. S., 558 (Webster et al v. Dwelling House Ins. Co.):

“Provisions for forfeiture are to receive, where the intent is doubtful, a strict construction against those for whose benefit they are introduced.
“If it be left in doubt, in view of the terms of the instrument and the relation of the contracting parties, whether given words were used in an enlarged or a restricted sense, other things being equal, that construction will be adopted which is most beneficial to the promisee. ’ ’

And on page 563 of the opinion:

“Relief against forfeitures is matter of equitable cognizance; but rules applicable to the subject are resorted to in courts of law, and there seems no’ good reason why the principles which govern courts of equity should not be available in a suit at law where the facts make such cognizance necessary to the ends of justice.
“A primal rule is that forfeitures are not favored either in equity or at law; indeed, it is declared as a universal rule that courts of equity will not lend their aid to enforce a forfeiture. Following as a corollary from this, provisions for forfeitures are to receive, when the intent is doubtful, a strict construction against those for whose benefit they are introduced. ’ ’

It has been held by some courts that where there is in an ordinance a condition precedent, where something is required to be done before a right can vest, that the courts can not relieve against that. But it has been held by the Supreme Court of this state that a condition of the bind involved here is to be regarded as a condition subsequent. The right to build the road was vested in the company when the ordinance was passed; it had built its road upon three-quarters of the route and was operating it, and this condition should be regarded as a condition subsequent. The Supreme Court say in 43 O. S., 46 (State, ex rel Silsbee, v. Boyce):

“Where the conditions of the ordinance do not clearly appear to be conditions precedent, they will be regarded as conditions subsequent. ’ ’

No action has ever been taken by the city council to declare a forfeiture, or by any other duly authorized officer of the city. The city never complained that the railway company had not completed this part of the work within the time limit, until this suit was commenced, and not then until after the work was stopped by the mayor and police force. The city council has never authorized or directed the city solicitor to commence this action and ask that a forfeiture be declared. Whether the city solicitor had authority to begin such an action without a resolution passed by the city council, we need not now determine; but I speak of this fact as in line with what I have said — that the city has not done anything to indicate a desire for the forfeiture of these rights of the railway company. In the case in the 43 O. S. (supra), the court say, on page 52:

“The solicitor is a public officer elected by the people, and when required so to do by resolution of the council, he shall prosecute or defend for and in behalf of the corporation, except in certain cases.” (Rev. Stats., 1777).

On the question of forfeitures, in Pomeroy’s Equity Jurisprudence, Section 381, Vol. 1, the author says, on page 415:

‘ ‘ The general doctrine was finally settled that wherever a penalty or forfeiture is inserted merely to secure the payment of money, or the performance of some act, or the enjoyment of some right or benefit, equity regards such payment, performance, or enjoyment, as the real and principal intent of the instxniment, and the penalty or forfeiture as merely an accessory, and will therefore relieve the debtor party from such penalty or forfeiture whenever the actual damages sustained by the creditor party caxx be adequately compensated. The application of the principle in such cases, and the relief against penalties or forfeitures, must always depend upon the question whether compensation can or can not be made. ’ ’

In this case there is no complaint that the city is damaged. If it were true that a few weeks had gone by beyond the time limit in the ordinance, there is no claim made that the city has been damaged in the slightest respect by this failure on the part of the street railway company to complete this work within the exact time limit. There is no complaint made by any citizen of the city of Toledo that he has been damaged. No one is requesting that any officer of the city, the city solicitor or the council, or any other body or officer, go into court and ask to have a forfeiture declared. The purpose and object of the city council and the railway company in entering into this contract by ordinance, was to have a railroad built in the streets of the city for the benefit of the street railroad company and also of the people of the city, in order that they might have additional transportation facilities throughout the city. The purpose was not to get hold of and destroy the property of the street railway company, and the fact that the road was not completed exactly within the time fixed, if that were true, does not materially affect the rights of the city or damage in any appreciable amount the city or any of the citizens thereof. The city had delayed for ten years the completion of this work of grading. The street railway company had built the rest of the road between nine and ten years before they were required to build it and it would be clearly contrary to both law and equity and a violation of the fundamental principles of right and justice to declare a forfeiture of this small portion of the route, on the ground that it was not completed within the exact time fixed in the ordinance.

A case in Illinois is in point, 73 Ills., 541 (The Chicago City Railway Company v. The People, ex rel Allan C. Story), where the Supreme Court of Illinois say:

"Where a railway company was authorized by its charter to construct and maintain a railway in a certain part of the city of Chicago, over and along such streets, etc., as the common council had or might authorize, in such manner and upon such terms and conditions as the common council had or might contract with the company, and, by ordinance of the city, license was given to lay a single track along a certain street half the way within the time required: Held: That the common council had the right and power to waive the condition as to the time for completing the same, it being a provision in favor of the city to secure the public interests.1 ’

And on page 549 of the opinion, xne court say:

‘ ‘ Courts proceed with great caution in proceedings which have for their object the forfeiture of corporate franchises. It is not every non-performance of the condition in the act of incorporation, or every misuser, that will forfeit the grant. A substantial performance according to the intent of the charter is all that is required.”

Another ease upon the proposition that the city had the ' power to waive this provision of the ordinance, is found in 5 Ohio Circuit Court Reports, page 319 (The Hamilton Street Ry. & Electric Co. v. The Hamilton, etc., Transit Co.), the Circuit Court of Hamilton County. The opinion is by Judge Smith, in which, speaking for the court, he said:

“Nor do we think that we should in this case, at the instance of the defendants, determine or adjudicate whether for any reason the plaintiff company has forfeited the right given to it by the ordinance, to construct and operate its road. This also, in the first instance, is a matter for the consideration and decision of the city council which (if the forfeiture has occurred) may insist upon or waive it.”

As I have said in this ease there has been no act of the council looking towards a forfeiture of this franchise. The question is still open whether the city desires to. forfeit it, and before the property of the railroad company is declared forfeited and taken from it and its tracks torn form the streets, the company has a right to be heard before the council.

In a case found in 13 Ohio Federal Decisions, pages 307-312, opinion by Judge Taft, this is said:

“The ordinance would seem to vest in the village the power to act ,and remove the tracks from the streets if the council concluded that the conditions had not been complied with.” Stewart v. Ashtabula, 13 Ohio Fed. Dec., 307-312 (98 Fed. Rep., 516, 520).

Smith & Baker, for defendant.

It seems to us very clear that the city council is the proper body to determine whether the city desires that these rights and privileges shall be forfeited or not, or whether a slight failure on the part of the street railroad company in the matter of time in doing this work shall be waived. We are very clear that under the evidence offered here no court of equity would declare a forfeiture of these rights or enjoin the street railroad company from building and constructing its road upon this street. On the contrary, we find from the evidence in the case that the street railroad company has complied with the conditions imposed upon it; that it commenced the work within the time fixed and was proceeding properly and in order and according to law to fulfill its part of the ordinance when it was stopped.

The petition of the plaintiff will be dismissed at its cost, and injunction denied.


source: Caselaw Access Project

license: Public Domain

text:
    LIABILITY OF MUNICIPALITY FOR. DEFECTIVE SIDEWALK.
    [Circuit Court of Lucas County.]
    Adelia Bloom v. The City of Toledo.
    Decided, October 3, 1903.

      Sidewalks — Rendered Unsafe by Snow and Ice — City Liable "Where Ice Accumulates as a Result of a Defect in the Walk.

    For the presence of snow and ice upon the sidewalk, which, comes today and is gone tomorrow, the municipality is not liable; but when the danger to those using the walk arises from a defect in the walk itself, as from a sunken stone where water collects and freezes, the rule is different, and liability for an injury on account of such' defect arises. 19 C. C., 418, followed and approved.
    Haynes, J.; Hull, J., and Parker, J., concur.
   In this ease a petition in error is filed to reverse the action of the court of common pleas. It is a case in which Adelia Bloom is plaintiff and the City of Toledo defendant. It appears from the evidence in the case — briefly—that there existed at the time of the occurrences complained of, in the sidewalk upon the easterly or northeasterly side of Lagrange street, at or near the junction of that .street with Erie street in this city, a depression in the sidewalk, wherein in times of rain or melting snows water would accumulate and stand, and was liable to and did become frozen and slippery, and that this state of affairs had existed for a considerable time prior to the 1st of February, 1902, at which time, in the evening, the plaintiff in passing along that street, with her husband, stepped upon this icy spot, slipped and fell, 'receiving severe injuries from which she was laid up for a long time, and from which she was for a long time disabled.

Upon the trial of the case, testimony having been given to establish these facts, the court directed a verdict for defendant, the city of Toledo, and thereupon a petition in error is prosecuted to this court for the purpose of reversing the action of the court below.

The testimony upon the' trial showed that there was this depression. It seemed that at one end of the stone it had become sunken lower than the rest of the sidewalk, and therefore it retained the water which fell during rains, or the water which came from the melting of snows, or the water which ran into it from the adjacent property.

We suppose the theory of the trial court was that this obstruction was of such a nature that the city was not liable, and the line of argument is, that in regard to these minor obstructions, arising from snow and ice upon the street — liable to come today and be gone tomorrow, that there can be.no liability upon the part of the city. I do not propose to go into a discussion of all the eases that have been cited in regard to the matter, but I simply point out this fact, that in all these eases it would seem that the court confines its decisions — in cases where there are no defects in the sidewalks, along ordinary sidewalks there may become, by reason of snow storms or sleet storms, ice in a very few minutes, and there may be accumulations of water that follow a rain or from snow that has melted within a very short time — and the courts have held that, in cases of that kind, that the city is not liable. But when cases arise from defect in a sidewalk, and the sidewalk itself becomes the source of the evil, the rule is different — and we think it should be different. It is true that this unevenness covered a very small space; but it is in the sidewalk — which is not more than four or five feet wide — and it is certain that it was large enough so that a person could receive a very severe injury by stepping upon a spot of that kind, and it certainly should be looked after and remedied just as much as though half of a plank were gone; it is just that class of defects which require the attention of the city, and too often, I fear, just that class of cases which are overlooked by the officers of the city.

Peter Emslie, for plaintiff.

M. B. Brailey, for the defendant.

After a full discussion of this case we refer to the ease of Russell v. The City of Toledo, decided in the January Term, 1899, by this court, in which Judge King delivered the opinion, and in which he discusses these questions very fully and very clearly. This opinion will be found in the 19 Circuit Court Reports, page 418. I will simply say that in deciding this case we follow the law as laid down in the decision of that case and affirm it and abide by it. The question whether this defect was a matter which was dangerous, or not, is a matter which should have been submitted to a jury and is not a question of law that the court, under the circumstances, should take from the jury. The verdict will be set aside and the judgment reversed and the cause remanded for a new trial.


text:
    NUISANCES.
    [Circuit Court of Cuyahoga County.]
    The Standard Bag & Paper Company v. The City of Cleveland.
    Decided, November 30, 1903.

      Jurisdiction in Equity — Action Does Not Abate Upon Transfer of Plaintiff’s Title, When — Knowledge of Plans and Silence Alone not Such Laches as to Estop — Public Nuisance by Plaintiff No Answer to Private Nuisance by Defendant, When — Prescription as Defense in Nuisance Case — No Joint Liability for Several Nuisances — When Damages Computed to, in Equitable Action.

    1. In an action to restrain the commission of a nuisance and to recover damages therefor, equity has jurisdiction and damages may be awarded, even if the court for some reason considers that it will not grant an injunction.
    2. Such action does not abate upon transfer after suit brought of plaintiff’s title to the property damaged by continuance of the nuisance, if plaintiff’s grantee participates in the trial and ratifies its prosecution.
    3. Mere knowledge that a city is constructing a system of sewers at large expense which may cast filth upon one’s land, and failure to protest, when it does not appear that the plaintiff in any way encouraged the adoption of the system, or induced the city to so direct its sewers, do not work an estoppel or constitute such laches as to bar a recovery in an action against the city for maintaining a nuisance.
    4. In an action against a city by the proprietor of land within it through which runs a stream, to restrain the city from polluting the stream to his special damage, it is no defense that the proprietor also pollutes the stream, contributing to a public nuisance, no special damage to the city as a lower riparian proprietor being shown.
    5. Prescriptive right to flow sewage into a stream can be maintained as a defense only for the quantity of sewage originating the right, and not for any increase thereof.
    6. Where a city and individuals are casting filth into a stream to the damage of a lower riparian proprietor, the city can be held liable only for the quantum of pollution caused by itself, and not for that caused by individuals though they are situated within the limits of the city.

      7. In an equitable action to enjoin a nuisance and for damages, the damages if allowed should he computed to the first day of the trial term.
    Winch, J.; Hake, J., and Marvin, J., concur.
    Appeal by defendant.
   This is an action tried to the court on appeal from the common pleas court, the plaintiff alleging that it has been specially damaged in its business of making paper, by the acts of the city of Cleveland in emptying certain sewers into Kingsbury run, a natural water-course flowing through plaintiff’s premises.

The petition sets forth that plaintiff in its business formerly used the water from the run in large quantities, but that in 1898 the pollution of the stream from said sewers became so great that it was compelled to largely discontinue the use of said water and to purchase it from the city, whereby it was greatly damaged, and for which damages it asks judgment, and further prays for an injunction restraining the city from continuing to discharge its sewers into said run.

The city has interposed certain defenses which are hereinafter considered.

A preliminary inquiry must be made as to whether this action can be maintained in equity.

It is well settled in Ohio that a municipal corporation which causes its sewage to be emptied into a natural water-course, thereby creating a nuisance inflicting special and substantial damages to a riparian proprietor, is liable in an action for the damages so sustained. City of Mansfield v. Ballieti, 65 O. S., 451; City of Mansfield v. Hunt, 19 C. C., 488; Rhodes v. City of Cleveland, 10 Ohio, 160.

The jurisdiction of courts of law over cases of private nuisance is not, however, exclusive.

It was said in the case of Fox v. City of Fostoria, 14 C. C., 471, 481:

“It may be conceded plaintiff might bring and maintain suits for damages in every instance where he suffers damages and might recover. But inasmuch as the obstruction here is permanent, entailing damages continuously and necessitating frequent and continuous litigation with uncertain results and certain costs, expense and trouble, we suggest that the remedy at law is not adequate.”

While equity has assumed jurisdiction of nuisance cases for many reasons, among which may be mentioned the following: because compensatory relief is insufficient and preventative remedy is necessary to the ends of justice; because the cause of action is continuous and the nature of the damage is such as not to be susceptible of proper assessment by a jury; and because the damages are too small to warrant a judgment — per- ' haps the principal reason why equity takes jurisdiction in cases of continuing nuisance is because thereby multiplicity of suits is avoided.

The prevention of a multiplicity of suits is a very favored object with courts of equity and perhaps more favored in Ohio than in many other states. The extent to which the doctrine has been carried is illustrated by the case of Blair v. Newbegin, 65 O. S., 425.

Plaintiff’s petition and proof bring it squarely within this equity jurisdiction. We have in this ease a continuing nuisance which is causing special damage to the plaintiff in its business; as often as a suit at law may be brought to assess such damages a new cause of action arises out of the same relation of the parties and continues until another such suit may be brought. Hence arises a multiplicity of suits. Again, compensatory relief under the circumstances of this ease is certainly insufficient and preventive relief is prayed for; whether or not, in view of the situation of the defendant, preventive relief will be granted, does not affect the jurisdiction of the court. Such is the doctrine laid down by Pomeroy on Remedies and Remedial Rights, Section 78:

“When the plaintiff possesses or supposes himself to possess primary rights, both legal and equitable, arising from the same subject matter or transaction, and avers the necessary facts in his pleadings and prays for both the remedies corresponding to the different rights, but on the trial fails to establish his equitable cause of action, his action should not therefore be dismissed.”

This doctrine was followed in the case of Lynch v. Elevated R. R., 129 N. Y., 274, and many similar cases might be cited, so that we conclude that in an action to restrain the commission of a nuisance and to recover damages therefor, equity has jurisdiction and damages may be awarded even if the court for some reason considers that it will not grant an injunction.

Without reciting all the facts in this case, which would be more properly set out in a finding of facts than in an opinion, the general rules above set forth, unless there is such merit it is sufficient to say that plaintiff has made out a case under in one or more of the several special defenses interposed by the city as to preclude any relief for plaintiff.

Let us examine these special defenses.

1. It is admitted that after the commencement of this action in the court below, plaintiff parted with its title and the possession of its property on Kingsbury run, and from this fact it is argued that it thereby divested this court of jurisdiction of this cause, and that plaintiff must be remitted to its action at law; that equity can not raise its arm to protect a party in the enjoyment of something that party has lost by its own voluntary act.

In this court, however, as well as in the court below, the grantee of plaintiff and present owner of the property appeared at the trial of the case, ratified its prosecution by the plaintiff and participated in the trial.

Plaintiff claims that Section 5012, Revised Statutes, applies, and that no duty rests upon it to have any affirmative entry made by the court regarding the transfer of title. That the suit is Us pendens and its determination binds the actual owner. That if the defendant for any reason desires substitution or joinder, it should ask for it.

We think plaintiff is right.

Section 5012, Revised Statutes, after providing that actions shall not abate on account of the marriage of a female party or upon the disability of a party, reads:

“And upon any other transfer of interest the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted for him.”

We think this action may continúe in the name of the original party. Of course, the new owner of the property will be bound by any order made in this case, though it has made no application for substitution. The statute fits the case exactly, and in this conclusion we are not without authority to sustain us.

In the case of Stufflebeem v. Adelsbach, 135 Cal., 221, being an injunction suit to restrain interference with a ditch, a similar statute was similarly applied.

In the case of McGean v. M. R. R. Co., 133 N. Y., 9, an action to restrain the operation and maintenance of defendant’s elevated railway on a street in front of plaintiff’s premises and to recover damages, a similar construction was put upon a similar statute.

2. From the fact that the evidence shows that the president of the plaintiff company was present and had knowledge of the system of sewers which was being constructed by the city at large expense, at the time of their construction; that he at that time made no protest; that he made no inquiry at the city hall to ascertain the extent of the contemplated discharge of sewage and was silent, it is argued that by his conduct he acquiesced in the construction of said sewers, and that therefore plaintiff should be estopped from maintaining this action.

We do not think the facts in the case warrant the application of the doctrine of estoppel. In the language of the opinion in Chapman v. Rochester, 110 N. Y., 273:

“It does not appear that the plaintiff in any way encouraged the adoption of that system or by any act or word induced the city authorities to so direct the sewers that the flow from them should reach his premises. ’ ’

See also Cilly v. City of Cincinnati (Hamilton Co. District Court), 2 W. L. B., 135, and Fox v. City of Fostoria, 14 C. C., 471.

3. The defense of laches pleaded, in the second amended answer is based upon the same facts as the defense of estoppel, and fails for the same reason that that defense fails.

4. Defendant urges that plaintiff should have no standing, in a court of equity because for twenty years it has been doing the very thing which it complains that the city is doing — in other words, that plaintiff’s hands are not clean.

It was shown in the evidence that below the place where plaintiff has been drawing water from Kingsbury run it has an effluent that carries back into the run a large volume of water holding in suspension and solution the dirt, coloring matter and chemicals coming from the working of rags and paper used in its business, and also some sewage. The city says ir. has a right to make this defense because it is itself a lower riparian proprietor as well as an upper proprietor, and the subject matter of this suit is the pollution of Kingsbury run.

■While the city may be a lower riparian proprietor, it does not appear that it has ever complained of the acts of plaintiff in polluting the stream, nor has it shown or attempted to show any damage to it therefrom. The subject of this suit is not alone the polluting of Kingsbury run but the special damage resulting therefrom.

It is not a public nuisance which plaintiff, as one of the public, seeks to abate, but a private nuisance causing it special damage. The defendant city may complain that plaintiff is causing a public nuisance but that matter is not an issue in this ease.

5. Defendant pleads a prescriptive right to use Kingsbury run for sewage purposes. This would be a good defense if proved, subject to the limitations usually put upon such prescriptive rights by the courts and set forth in 21 Am. & Eng. Enc. of Law, 735, as follows:

“The right of prescription is restricted to and measured by the adverse user'that'originates it;'it must be shown that the user, during the entire period by which the right is fixed, has produced an injury of the same grade and character as that complained of. For any increased user causing material injury the right of prescription can not be set up as a defense.”

The facts in this ease show that for more than twenty-one years defendant has used Kingsbury run for the disposal of a certain amount of sewage, but that such use has increased materially in the last few years. The amount of sewage that defendant has thus proved its right to throw into Kingsbury run can be ascertained from the facts and the matter will be again, adverted to when we come to the question of whether or not plaintiff has proved that it has been substantially damaged as claimed by it.

6. Defendant claims that plaintiff has not shown by a fair preponderance of the evidence that the city of Cleveland has caused the pollution that has rendered impossible the use of Kingsbury run in the manner that plaintiff was using it for mechanical purposes, but that it is just as fairly deducible from the evidence that others may have caused it, and that therefore defendant is not liable.

To sustain this proposition defendant’s counsel cite as follows:

In 77 N. Y., 51, the Court of Appeals of the State of New York declared this rule (syllabus):

“Where different parties pollute a stream by the discharge of sewerage thrown by each from his own premises, and each acting separately and independently of the others, one of the number is not liable for all the injury sustained by another because of the nuisance thus created; each is liable only to the extent of the wrong committed by him.”

On page 53, the court said:

“The liability commences with the act of the defendant upon his own premises, and this act was separate and independent of and without any regard to the act of others. The defendant’s act being several when it was committed, can not be made joint because of the consequences which followed in connection with others who had done the same or a similar act. It is true that it is difficult to separate the injury; but that furnishes no reason why one tort feasor should be liable for the act of others who have no association and do not act in concert with him. If the law was otherwise, the one who did, the least might be made liable for damages of others far exceeding the amount for which he really was chargeable, without any means to enforce contribution or to adjust the amount among the different parties. So also proof of an act committed by one person would entitle the plaintiff to recover for all the damages sustained by the acts of others who severally and independently may have contributed to the injury. Such a rule can not be upheld by any sound principle of law. The fact that it is difficult to separate the injury done by each one from the others • furnishes no reason for .holding that one tort feasor should be liable for the acts of others with whom he is not acting in concert.”

In 57 Penn St., 142, the court said:

“True, it may be difficult to determine how much dirt came from each colliery, but the relative proportions thrown in by each may form some guide, and a jury in a case of such difficulty caused by the party himself, would measure the injury of each with a liberal hand. But the difficulty of separating the injury of each from the others would be no reason that one man should be held to be liable for the torts of others without concert. It would be simply to say, because the plaintiff fails to prove the injury one man does him, he may therefore recover from that one all the injuries that others do. This is bad logic and hard law. Without concert of action no just suit could be brought against the owners of all the collieries, and clearly this must be the test.”

From these authorities we gather the rule to be that while one tort feasor is not liable for the acts of others who have no association and do not act in concert with him, he is liable for his own acts. Whether in this case from the evidence we can determine the quantum of pollution caused by the city, is another matter to be taken up when we come to the question of damages. We agree with counsel for the city that for such quantum alone can the city be held liable.

7. Having come to the conclusion that plaintiff has proved its case and that defendant has shown no good reason why plaintiff should not recover, it remains to inquire whether, in fact, plaintiff has been materially damaged by the acts of the defendant, and if so, to what extent.

We think the evidence fully shows:

“That the plaintiff’s mill was located forty years ago on the banks of the stream known as Kingsbury run in the city of Cleveland, and has ever since continuously been devoted to the manufacture of paper; that the mill site contains about nine acres of land; that the mill was operated up to April 20, 1898, under the ownership of The Cleveland Paper Company. From April 20, 1898, to February 1, 1903, under the ownership of The Standard Bag & Paper Company; and since February 1, 1903, the Cleveland-Akron Bag Company, grantee of the present plaintiff; that the capacity of the mill has greatly increased, there having been a one-tenth increase in its out-put since April 20, 1898; that the improvements on the property consists of extensive buildings, complicated and valuable machinery, requiring about 450 horse power now furnished by an engine of the compound condensing type, but prior to November, 1900, by three engines, one of which of about 300 horse power, was of the simple condensing type; that it required about the same amount of water for the condensation in the old engine that it does in the new; that the process of manufacture in the mill is the customary one requiring the free use of water for washing, beating and the preparation of raw material ; that water is required for the operation of the paper machines, for use in the boilers and in the condenser; that the total requirements and actual use since 1898 have been one million gallons daily; that the owners have taken unusual pains to procure water adapted to their purpose from springs and other sources more or less permanent, and more or less remote from their manufacturing site, piping water for distances of one-half to two-thirds of a mile from their sources; that the plaintiff has available for use in its mill from springs and other sources of supply which do not involve a great expense, about four hundred thousand gallons of water daily, a portion of which is furnished them permissively and might be withdrawn at any time; that they are under the necessity of obtaining about six hundred thousand gallons of water daily from other sources; that in 1891, under a change of management, the demand for water for the first time was so increased beyond the former sources of supply as to necessitate procuring it elsewhere; the only available sources of supply were the water furnished by the city of Cleveland through its water works system, and the water flowing through the plaintiff’s premises in the bed of Kingsbury run. An intake was then constructed from Kingsbury run, protected with a strainer and equipped with a filtration plant, and the water was conducted from the run into the pump and condenser of the engine. The X>roduet of the engine condenser was pumped into a tank on the hill side, being at a temperature of about 114 deg., Fah., and from there was all drawn down into the mill and used in the usual process of manufacture. These processes are such as to require the heating of the water. Prior to the year 1898 the plaintiff had found it necessary to occasionally clean filth from their screen at the intake and to take out and renew the filter and remove from it filth which had accumulated therein. This accumulation of filth both on the screen and in the. filter and evidence of its existence in the water as used in the mill, rapidly increased during the year 1898, until in the fall of that year in November it became impossible to so remove from the water taken from Kingsbury run the foreign matter in it as to permit of its use. Since that time the product of the condenser has of necessity been largely wasted, only one-sixth of it being available for the manufacture of paper, and that only in the earlier process for washing of extremely dirty material. The plaintiff was then, obliged to and did heat the water in its washers and beaters by the induction thereto of live steam, and was obliged to and did use a larger amount of water from the only other reasonably available source of supply, namely, the water works of the city of Cleveland.
“It appears that the waste by the necessity of discharging and throwing away five-sixths of this heated water causes a direct money loss to the plaintiff, which has been ascertained to a reasonable certainty by the testimony of experts in the employ of the city and otherwise.”

Prom the evidence we are also able to determine with reasonable certainty the. quantity of sewage which the defendant has established its prescriptive right to carry into the. run.

As to the quantum of pollution caused by others, including slaughter houses, oil refineries, rolling mills, foundries and other manufacturing establishments, some twenty-one in number, and about one hundred private water closets, all located near Kings-bury run, and emptying into it, the proof is not so definite, but we are able to estimate it with some degree of certainty.

Deducting from plaintiff’s total damage occasioned by the necessity of throwing away five-sixths of its heated water, on account of the pollution of the water in the run, that portion of said damage resulting from prescriptive pollution, if it may be so called, and the pollution occasioned by others than the city, there remains the damage specially and directly caused by the city and for which it is liable. This damage we have computed and averaged by the month, beginning the computation April 20, 1898.

Defendant claims that damages should be computed only to the filing of the petition, July 6, 1900. Plaintiff contends that it is entitled to damages down to the day of trial in November, 1903.

It appears that in law cases for damages only, defendant is right, but it would seem to be otherwise where the damages are to be ascertained by a court of equity. As we have heretofore stated, one of the reasons why equity retains control of suits involving damages by trespass and nuisance, though preventive relief may be denied, is for the purpose of avoiding a multiplicity of suits and computation of damages to the trial day, is within the spirit of that purpose. Webb’s Pollock on Torts, 519; People v. Mould, 37 Hun., 38; Lynch v. Elevated R. R., 129 N. Y., 274.

Decree for plaintiff.

Norton T. Eorr, for plaintiff.

Newton D. Baker, for defendant.

In this state interest begins to run on judgments from the first day of the term at which they are rendered, and for that reason in this ease we compute the damages to the first day of this term, October 19, 1903, instead of to the day of trial, and for the period of sixty-six months intervening between April 20, 1898, and the first day of this term of court, we find that by the acts of defendant the plaintiff has been damaged in the manner claimed by it in the sum of $6,600.

An injunction, however, is refused. The granting of an injunction is always largely in the discretion of the court and the results to the public at large, now using the sewers we are asked to abate, must be considered. It appears from the proof that many private houses and manufacturing and mercantile establishments in the city of Cleveland are now connected with these sewers, which have been built at large expense. The health, as well as comfort and convenience, of thousands of citizens depends upon maintaining an outlet for the sewers, and no other outlet is practical or can be obtained under the present system of sewage disposal in use in the city.

Again, an injunction should restrain the city from emptying only part of said sewage into Kingsbury run, because the city has shown its prescriptive right to flow a certain amount of sewage thereinto and such a partial abatement would be impracticable and difficult to enforce.

Speaking for myself alone, I think the city should be compelled to install at the mouths of all sewers running into Kings-bury run and other runs, and thence into the Cuyahoga river, modern and scientific sanitary plants for the interception and reduction of all polluting matter effluent from such sewers, but the court is unwilling to put the city to such expense at this time.


text:
    INNOCENT ALTERATION OF A PROMISSORY NOTE.
    [Circuit Court of Lucas County.]
    Charles E. Tucker v. John Hendricks.
    Decided, October 31, 1903.

      Promissory Note — Whether the Giving of, Constitutes Payment of a Claim — Is a Question for the Jury — Innocent Alteration of Note— Without Knowledge or Consent of the Payee — Does Not Defeat Action on the Original Claim — -Testimony as to Intention.

    1. Where a debtor attempts to satisfy a claim by the giving of his note for the amount thereof, which note was taken by the creditor, it is a question for the jury whether'the note was accepted in payment of the claim.
    2. Where intent is material, it is proper to ask a witness what his intention was with reference to the matter in hand.
    3. A note drawing six per cent., given in satisfaction of a claim, was deposited by the payee in bank and placed to his credit. Some officer of the bank, with the understanding that between the bank and the payee the note was to draw eight per cent., the payee having obtained a loan from the bank at that rate, innocently wrote the words “8 per cent.” upon the note. At maturity, payment of the note was refused because of the alteration, and suit was brought against the maker by the payee upon the original claim. Held: That the note having been innocently altered, without the knowledge or consent of the plaintiff, he had a right to pay the bank the amount of the note, take it back and bring an action upon the original claim.
    Hull, J.; Haynes, J., and Parker, J., concur.
   This action was brought by the defendant in error, plaintiff below, against C. E. Tucker, plaintiff in error, to recover $550, which the plaintiff claimed was due and owing to him for services that he had performed in and about the oil business in which Tucker was engaged. The defendant below by way of defense claimed that he had had a settlement with plaintiff and had given him his note for $550 in full payment of this claim. The plaintiff admitted that he had taken this note for $550 but averred that the Pemberville Banking Company, where he had deposited the note as collateral, without any fraudulent intent, altered the note by writing this in it: “Int. 8 per cent.,” and that the defendant having refused to pay the note on account of its having been so altered when presented to him for collection by the bank; that the plaintiff paid the bank the amount of this note and took it back and brought suit against Tucker on his original indebtedness. Plaintiff claimed and averred that this alteration was made by the bank without any fraudulent intent or purpose, but inadvertently; that therefore his claim was in full force and effect although the note had been so altered that it could not be sued upon. The action against Tucker was tried to a court and jury and a verdict returned in favor ox Hendricks for the full amount of his claim and judgment entered on the verdict, and this action was brought to reverse that judgment.

It is claimed by the plaintiff in error that the note having been altered by the bank in this manner after being deposited with it by the plaintiff, that no recovery can be had either upon the note or upon the original indebtedness. The evidence fairly shows that the plaintiff took the note to the bank and deposited it and it was placed to his credit in his account; that he at that time obtained a loan of about this amount from the bank, but the proceeds of this note went into his account in the bank, and it might perhaps be regarded as a discounted note, but just what the transaction ought to be called the witnesses disagree upon. The note as drawn drew six per cent, interest and ran for three months. The bank was not in the habit of loaning money at less than eight per cent, and made an arrangement with Hendricks whereby this note as between themselves was to draw eight per cent, interest, and thus make up the other two per cent., and some officer of the bank, it does not appear clearly who, knowing about' this arrangement, wrote on the face of the note “Int. 8 per cent.,” so as to have a memorandum of this contract, the officer of the bank being under the impression evidently that the note was, so far as they were concerned, to be regarded as an eight per cent. note. When the note became due the bank had it presented to Mr. Tucker and he refused to pay it on the ground that it had been altered. It was sent back to the bank and the bank notified Mr. Hendricks and he immediately took the note up, waiving any defense that he might have or any complaint that he might have made that the bank had altered the note so that it could not be collected.

Tucker makes no claim that he has paid this claim; he admits that he owes $550 for work and labor done for him in the oil fields. There is no pretense that that has been paid or extinguished in any way unless it was by the act of the person in the bank inadvertently writing a few letters upon his note.

We are of the opinion that the judgment of the court of common pleas was correct. The cashier of the bank testifies that it was altered without any fraudulent intent on his part, if he did it, and so far as his knowledge goes, without any fraudulent intent on the part of any officer of the bank. The whole transaction occurred in the way I have stated and appears to have been perfectly honest and without any intent to defraud Mr. Tucker in any manner whatever, but this was written on the face of the note, clearly with the impression that the bank had a right to make this memorandum. There was no intent to make an alteration against Mr. Tucker, or to enforce more than six per cent, against him.

The question involved is fully discussed in two cases found in the 4th O. S., the first one at page 60 (Merrick v. Boury) :

“It is only by force of an agreement of the parties that the giving of an unsealed note by the debtor will be payment of a precedent debt. The burden of proof is upon the debtor, who must establish the agreement clearly; and the question whether there was such an agreement is one of fact to be determined by the jury.
“A vendee of goods, subsequently to the purchase, gave his note for the price, but it was not received as payment. Afterward the vendors, to whom it was payable, without any fraudulent purpose, and under an honest mistake of right, materially altered it. Held: That such alteration did not preclude a recovery upon the original cause of action, the precedent indebtedness.”

In the case at bar the claim was made that this note had been taken in payment. Plaintiff denied that it was taken in payment; and that was a question to submit to the jury, and it was found by them that it was not taken in payment. There is no conflict among the authorities that there must be an agreement that the note was taken in. payment or something equivalent to that, otherwise it will not be held to have been so taken in payment.

Another case in 4 O. S. is found at page 530 (Fullerton v. Sturges) where the court say in the syllabus :

“The material alteration of a written instrument, made by a stranger, will not avoid it.”

The alteration in the case at bar was made by a stranger. But it is insisted by the plaintiff in error that the plaintiff below had sold and transferred the note to the bank and had no right to take it up. It may be true that the bank could not have compelled him to pay this note and take it up, the bank having altered it though innocently. He might have made that objection; he might have made that defense perhaps to any action which the bank might have brought against him; but he had a right to waive this and pay it, and if he took the note back Tucker can not complain; Tucker still owes the debt and it is incumbent upon him to pay it, and neither the defendant nor the bank have been guilty of any fraudulent act or have done anything with intent to injure Tucker in regard to this note.

One of the alleged errors complained of is that the court permitted the cashier to testify whether he had any intention to defraud or whether any of the officers of the bank, so far as he knew, had any intent to defraud in what was done. The question was asked him: “What is the fact as to whether there was any intention upon the part of your bank or of the officers to defraud any person in this matter, so far as you know?” Objection was made to that and overruled and exception taken. The answer of the witness was: “There was none.” It is always proper to ask a person what his intention was where that is material. There can be no fraud without intent. So far as any other officer of the bank was concerned, he simply testified that so far as he knew there was no fraudulent intent. This note having been altered without the knowledge or consent of the plaintiff and. innocently altered, he had a right to bring his action upon the original indebtedness, which he properly did.

Gilbert Harmon, for plaintiff in error.

Shefler & Campbell, for defendant in error.

There were no errors committed upon the trial to the prejudice of defendant below; the verdict and judgment were correct and will be affirmed.


text:
    NEGLIGENCE.
    [Circuit Court of Cuyahoga County.]
    City of Cleveland v. Michael Wolf.
    Decided, November 23, 1903.

      Peremptory Order and Assumed Risk.

    In a negligence case a general charge that: “If you find from the testimony that the plaintiff was ordered by one of the defendant’s foremen to go into the trench at the time he was injured, he would not be negligent by reason of obeying such order, unless the danger of so doing was so obvious that a man of ordinary prudence would not have exposed himself to it,” is misleading because it fails to define the kind of order which would relieve the plaintiff from the thought, care and scrutiny which he is bound to exercise while engaged in his ordinary duties, and a verdict for plaintiff following such charge should be set aside, where there was no evidence showing any peremptory order.
    Winch, J.; Hale, J., and Marvin, J., concur.
    Error to court of common pleas.
   On tbe 15th day of November, 1899, the City of Cleveland was engaged in laying water pipes on Kirtland street, in said city, which pipes were lowered into a trench dug for that purpose, by means of a derrick placed over said trench. Michael Wolf was on that day in the employ of said city, his duty being to assist in putting the pipes in proper position after they were lowered in said trench, and to make the joints water tight. While he was at the bottom of said trench engaged in the performance of his duties, he was injured by a portion of the west wall of said trench falling in upon him.

He brought suit against the city, alleging the weak and unsafe condition of said west wall at the particular place where lie was injured where stood a telegraph pole, which he says the city knew, or by the exercise of ordinary care ought to have known, but which was to him unknown; the failure of the city to brace or timber said trench so as to prevent said wall from caving in; the failure of the city to notify him of the danger to which he was exposing himself while performing his duty. Another allegation of the petition I will give in its exact language :

“The defendant’s foreman then in charge of the work, and whose orders and commands plaintiff was bound to obey, peremptorily ordered plaintiff to descend into said trench; * # # in obedience to defendant’s order, by its agents and servants whom he was bound to obey, and not knowing the weak and dangerous condition of said trench wall at or near said pole, and having neither time nor opportunity to examine said wall before going into the trench, he descended into said trench at or near the socket end of the pipe, to which the pipe lowered as aforesaid was to be joined, and where plaintiff was to perform his duty; the trench near said socket was apparently in safe condition,” etc.

The city answered, denying all averments of negligence on its part, and alleging contributory negligence on the part of Wolf.

Trial upon the issues resulted in a verdict and judgment for the plaintiff.

To reverse this judgment, petition in error has been filed in this court, alleging, among other things, that the charge of the trial judge was erroneous. Attention is called to the following part of the charge:

“It was the duty of the plaintiff in this action to exercise ordinary and reasonable care for his own safety, and if he failed to do so he would be negligent, and if such negligence on his part directly contributed to cause the injuries complained of, he can not recover in this action. But I say to you, that if you find from the testimony that the plaintiff was ordered by one of the defendant’s foremen to go into the trench at the time he was injured, he would not be negligent by reason of obeying such order, unless the danger of so doing was so obvious that a man of ordinary prudence would not have exposed himself to it; and I further say to you, that unless the plaintiff knew, or by the exercise of ordinary care ought to have known, that by reason of the character of the soil where the trench was dug, or by reason of the proximity of the telegraph pole to the ditch, there ivas danger of earth falling upon persons who might be in said trench, he is not chargeable with negligence in going into said trench at the time he went therein.” '

This part of the charge was warranted by the allegations of the petition above quoted ( Van Duzen Gas & Gasoline Engine Co. v. Schelies, 61 O. S., 298), but it was not applicable under the evidence produced at the trial, and was, therefore, misleading.

There was no evidence produced showing that Wolf was peremptorily ordered into the trench at the time he was hurt. He himself says, upon cross-examination, that he always knew his duty and went down into the trench without being told, and that the pipe was put in the trench that day in the same way and in the usual manner of putting pipes in trenches.' Wolf had worked for the city twelve or thirteen years, the first five or six years in digging water pipe trenches, and the remainder of the time in putting water pipes in position at the bottom of the trench and connecting them together, the very things he started to do when he was injured. While he says that one •Henry Benedig, assistant foreman on the job, told him to go down into the trench, it appears Benedig preceded Wolf therein, and Wolf descended into the ditch at the proper time, in the usual manner, and to perform his usual and ordinary duties. It is apparent that Wolf, at the time he was injured, went into the ditch pursuant to the general orders all servants may be said to receive from their masters that they do their work at the proper time and place, and not pursuant to any special or peremptory orders given him at the time, or any orders different from the orders he had received many times a day for many years.

The reason the charge is misleading is because the trial judge failed to define the kind of order which would relieve Wolf from the thought, care and scrutiny which he was bound to exercise while engaged in his ordinary duties in an occupation which had in it certain elements of danger which he assumed when he engaged in it. It permitted the jury, having found that Wolf had general orders to go into the trench each time a pipe was lowered into it, to conclude that “he would not be negligent by reason of obeying such orders, unless the danger of so doing was so obvious that a man of ordinary prudence would not have exposed himself to it.” Such can not be the law; it ignores the rule of assumed risk.

Newton D. Baker and C. J. Estep, for plaintiff in error.

Hermann Preusser, for defendant in error.

The proper rule in eases like this is set forth by the Supreme Court in the recent case of The Northern Ohio Ry. Co. v. Seth Rigby, Ohio Law Reporter, January 11, 1904, page 755. The latter ease distinguishes the Van Luzen case above referred to, 61 O. S., 298.

Judgment reversed.


text:
    LEASE.
    [Circuit Court of Cuyahoga County.]
    Oscar J. Campbell et al v. Mary Luck et al.
    Decided, December 7, 1903.

      Tenant Gan Not Offset Cost of Repairs Against Rent, When.

    Under a demise of lands containing no express covenant that they are suitable for the purpose, or to put and keep them in repair, upon a subsequent destruction of part of the premises by flood or the acts of third persons, the lessee can not recover of the lessor the cost of repairs made by the former.
    Winch, J.; Hale, J., and Marvin, J., concur.
    Error to the court of common pleas.
   The action in the court below was brought by Mary Luck and others as lessors, to recover from Hiram M. Brown, as lessee, and Oscar J. Campbell as his surety, for rent and taxes claimed to be due under a written lease.

A joint answer was filed by the lessee and his surety setting up two defenses.

The first defense was that as to the claim for the taxes the action was prematurely brought, being commenced on May 28, 1902, the last half of the taxes for 1901 not being due until 'June 20, 1902.

The second defense is in the nature of a counter-claim, it being alleged that during the term of the lease a fire occurred on the premises and water from the city fire engines present at the time washed away part of the demised premises, leaving a gorge about sixty feet wide and thirty feet deep across the front thereof, rendering the same inaccessible and useless to the lessee. That thereupon the lessee notified his landlord and demanded a cancellation of the lease, which was refused; that he then demanded that the landlord cause said gorge to be filled up and the lot put in a tenantable condition, which was likewise refused; that finally the tenant filled the gorge himself, and paid the cost thereof, for which amount judgment is asked against the landlord.

A demurrer to both of these defenses was sustained by the common pleas court, and defendants not desiring to plead further, the court took the account and rendered judgment in favor of plaintiffs, to all of which defendants below excepted and filed their petition in error bringing before this court for review the sole question of the sufficiency of the defenses in the answer.

We think the trial court was right in sustaining the demurrer to both defenses.

1. The lease provided that the lessee should pay all taxes and assessments levied or assessed upon the demised premises during the term of the lease, “all payable at 816 Scranton avenue, Cleveland, Ohio,” the office of the lessors. It was not provided that the lessee should pay the taxes to the county treasurer.

The petition alleges that the lessors paid all the taxes for 1901 on February 11, 1902.

These taxes were charged on the duplicate and were payable under Section 1091, Revised Statutes, which reads:

“Each person charged with taxes on a tax duplicate, in the hands of a county treasurer, may pay the full amount of such taxes on or before the twentieth day of December, or one-half thereof on or before the twentieth day of December, and the remaining half thereof on or before the twentieth day of June next ensuing;” etc.

The lessor therefore had the option of paying all the taxes for 1901 at the December collection; he did not elect to wait until the following June for the payment of the last half; having so elected to pay all the taxes for the year at one time and having so paid them, under the terms of the lease the entire amount of said taxes for the full year was due him from the lessee.

2. Plaintiffs in error claim that the demised premises having been practically destroyed by the gorge, they are either relieved from the payment of rent, or entitled to maintain their counter-claim under the rule laid down in 7 Am. & Eng. Enc. of Law, 147:

“Executory agreements ordinarily are made on the implied condition that the performance of the agreement should not be rendered impossible by the intervention of some accidental and uncontrollable superior agency.”

This rule does not apply to the case of an executed lease of lands or tenements in the absence of express covenants to that effect.

In the first place the tenant did not surrender the demised premises; again the contract was not executory, but wholly executed so far as the lessor is concerned, and the damage to the premises occurred during the term; finally, there was no intervention of an accidental or uncontrollable superior agency, not were the premises destroyed — they were only impaired as to access.

It is well settled that in the absence of express covenants or conditions in the lease, where there is no fraud or concealment, there is no implied warranty on the part of the lessor that the leased premises are fit or suitable for the purpose for which they are rented, and no implied covenant to put or keep them in repair. Linn v. Ross & Co., 10 Ohio, 412; Shindelbeck v. Moon, 32 O. S., 264; Hilliard v. Gas Coal Co., 41 O. S., 662; Shinkle v. Birney, 68 O. S., 328.

The case of Linn v. Ross & Co. involved the destruction of a leased building by fire, and subsequently the Legislature passed the following act (Section 4113, Revised Statutes):

W. C. ’Ong, O. J. Campbell, for plaintiffs in error.

Beavis & Johnson, for defendants in error.

“The lessee of any building which, without any fault or neglect on his part, is destroyed or so injured by the elements, or other cause, as to be unfit for occupancy, shall not be liable to pay rent to the lessor or owner thereof, after such destruction or injury, unless otherwise expressly provided by written agreement or covenant; and the lessee shall thereupon surrender possession of the premises so leased. ’ ’

But it was held in the case of Gay v. Davey, 47 O. S., 396, that a surrender of the lease is necessary to obtain the benefit of this section, and .in Avery v. House, 2 C. C., 246, that it applies only to the building and so much of the premises as are necessary to its enjoyment. It is not claimed that the statute applies in this ease, but it is cited to indicate the' only exception to the general rule above set forth.

From the general rule it follows that, in the absence of any agreement on the part of the landlord to repair, a tenant can not recover from the landlord the cost of repairs made by him 18 Am. & Eng. Enc. of Law, 216.

In the ease of Mumford v. Brown, 6 Cowen, 475, Savage, C. J., says:

“It was not in the power of a tenant to make repairs at the expense of his landlord, unless there be a special agreement between them authorizing him to do this. The tenant takes the premises for better and for worse, and can not involve his landlord in expense for repairs, without his consent”

In the case of Ward v. Fagin, 101 Mo., 669, it was held that any injury to the leased premises, and through them to the tenant, caused by the negligent act of third persons, can not create or cast on the landlord a liability which, prior to such act, did not exist.

The case of Polack v. Pioche, 35 Cal., 416, is interesting, the facts in the case being similar to the facts in this case.

’Judgment affirmed.


text:
    VIOLATION OF SUNDAY CLOSING LAW.
    [Circuit Court of Cuyahoga County.]
    Louis Kubach v. The State of Ohio, and Fred. Gittings v. The State of Ohio.
    Decided, January 8, 1904.

      Jurisdiction of Mayor of Tillage — Section 1824, Revised Statutes, Constitutional — Second Offense Must Be Charged as Such — Aggregate Penalties May Exceed Limit of One — Information Not Required.

    1. Under Section 1824, Revised Statutes, mayors of villages have final jurisdiction in misdemeanor cases in which, under the Constitution, there is no right to trial by jury, and such jurisdiction extends throughout the county.
    2. Said Section 1824, Revised Statutes, is not in conflict with Section . 10, Article IV of the Constitution.
    8. In order that a person charged in one affidavit with selling liquor contrary to the statute on more than one occasion, may be entitled to a jury or punished as for a second offense, the affidavit must show a former conviction and that a particular sale is charged as a second or repeated offense.
    4. Several charges of distinct sales of liquor contrary to the statute may be made in one affidavit and a fine assessed for each offense, even though the aggregate of such fines exceeds the limit of punishment for one offense.
    5. Misdemeanor cases may be instituted and tried before justices of the peace and mayors, upon the filing of an affidavit, and it is not necessary that an information be lodged with the magistrate.
    "Winch, J.; Hale, J., and Marvin, J., concur.
   There are eight cases before this court bearing the above numbers, on error- to the court of common pleas.

In the Kubach cases, numbered 3134, 3135 and 3136, and in the Gittings eases, numbered 3139, 3140 and 3141, the plaintiffs in error were convicted before Reuben Osborn, Mayor of the Village of Bay, in this county, of violations of the Sunday Closing Law, being Section 4364-20 of the Revised Statutes.

In the Gittings cases, numbered 3137 and 3138, plaintiff in error was convicted before said mayor of suffering gaming, contrary to the provisions of Section 6933 of the Revised Statutes.

The defendants thereupon prosecuted error to the court of common pleas, where the convictions were affirmed, and error is prosecuted in this court to reverse the judgment of the common pleas affirming the judgments of the mayor.

In the cases for the violations of Section 4364-20, each of the affidavits contained several counts alleging distinct sales of intoxicating liquor, and also charging that the defendant, on the day in question, kept his place open, contrary to the provisions of the statute.

In ease No. 3135 there are four counts, three alleging separate sales of intoxicating liquors to the persons named, on the 26th day of July, 1902, and the fourth count alleging that the place was kept open on that day.

In case No. 3134 there are three counts, two alleging sales to different persons on July 19th, and the third count alleging the keeping open on that date.

In case No. 3136 the affidavit contained three counts charging two sales on August 2d, and the keeping open of the place on that date.

In case No. 3139 one sale is alleged, and the keeping open of the place on August 2d.

In ease No. 3140 there are three counts, alleging two sales and the keeping open of the place on July 19th.

In case No. 3141, there are three counts, alleging two sales and the keeping open of the place on July 26th.

In the Kubach case he was found guilty of all the sales alleged, but not guilty on each count of keeping open, and in the Gittings cases, he was found guilty of every count charged against him. In each the mayor imposed a fine on each count on which the defendants were found guilty, so that in cáse No. 3135, above referred to, the defendant was fined $150, being $50 each on the first, second and third counts of the affidavit.

In the Gittings ease, No. 3137, he was found guilty of suffering gaming by means of a gaming device, to-wit, a slot machine, on July 18th, contrary to the statute referred to, and in case No. 3138 he was found guilty of a like offense committed on July 19th. In each of these eases he was fined $50 and costs.

On behalf of the plaintiffs in error there are several objections made to the proceedings below. The jurisdiction of the mayor is challenged for two reasons: First, it is said that the mayor of the village of Bay has no jurisdiction to try any cases for the violation of the state law for offenses committed outside of the village of Bay; and, second, that on the face of the record which is before this court, the defendants are charged with second and subsequent offenses, and are, therefore, entitled to a trial by jury, which was denied them. The questions were raised before the mayor in various ways, so that they are properly before this court.

On the first branch of this question, we find that by Section 1824 of the Revised Statutes, the mayor of the village has final jurisdiction in misdemeanor cases in which, under the Constitution, there is no right to a trial by jury, and that this jurisdiction extends throughout the county. Such was the holding of this court in an unreported case which was before it at the last term of court. The ease was that of The State of Ohio, ex rel Carey, v. Metzger, as Mayor of the Village of Bedford. The relator in that case sought a writ of prohibition to prohibit Metzger, as mayor of the village of Bedford, from proceeding to try the relator for a violation of the Beal Local Option Law, alleged to have been committed in the village of Lakewood in this county. In that ease this court held that Section 1824 confers jurisdiction upon a village mayor to try misdemeanor eases in which the defendant is not entifled to a jury trial, arising anywhere in the county. The writ asked for in that case was denied, and the petition dismissed. This court also made the same holding in the unreported case of Joseph Roth v. P. D. Metzger et al, where Roth brought suit against Metzger for damages for false imprisonment, in that Metzger, as mayor of Bedford, tried Roth at Bedford for violating Section 4364-20 at "Warrensville. It was claimed the mayor had no jurisdiction outside his village. This court held the jurisdiction under Section 1824 extends throughout the county, and affirmed the ruling of the court of common pleas in sustaining a demurrer to the petition. We follow those holdings in this case, and hold that the statute confers jurisdiction on the mayor throughout the county.

It was further urged in argument that the grant of jurisdiction to a village mayor throughout the county is repugnant to the Constitution, and that jurisdiction could be lawfully conferred upon the mayor only for the village in which he had been elected. In the argument in this case, no particular part of the Constitution was referred to, which it is claimed this statute violates, but in the case of Stale, ex rel Carey, v. Metzger, referred to above, it was claimed that Section 1824 was in conflict with the provisions of Section 10 of Article IV of the Constitution. In that case, this court held, that no such conflict existed, and that that section of the Constitution in no way prevents the grant of such power. We are still of that opinion, and no suggestion having been made that Section 1824 violates any other provision of the Constitution, we hold that Section 1824 is a constitutional and valid enactment.

It is urged, as an additional reason why the mayor is without jurisdiction in these cases, that on the face of the record the defendant is being prosecuted for a second or subsequent offense by reason of the fact that the affidavit, as in case No. 3135, contains four separate charges of distinct offenses. We are cited to a recent decision of our Supreme Court which seems to us conclusive on this point. We refer to the case of The State of Ohio, ex rel Smith, v. Smith, decided by the Supreme Court on October 17th, 1903, and reported in the 69 O. S. The opinion in the case will be found in The Ohio Law Reporter ef Do-’ cember 28th, 1903, at page 722. In that case the second paragraph of the syllabus reads as follows:

“Unless such affidavit charges the particular sale to be the second or subsequent offense, imprisonment can not be imposed as a part of the punishment, and a justice of the peace with whom the affidavit is filed has jurisdiction to try the accused without the intervention of a jury.”

The case under consideration in State, ex rel Smith, v. Smith was for a violation of the pure food law, and like the statute under consideration here, authorized the imposition of imprisonment as a penalty for a second or subsequent violation of the statute, but did uot authorize the imposition of imprisonment for a first offense.

On the authority of that ease and the following cases, Larney v. Cleveland, 34 O. S., 599, and Inwood v. State, 42 O. S., 186, we hold that as none of the affidavits in these cases contained any allegation that the offense in question was a second or repeated offense, the defendants were properly prosecuted on all the counts as for a first offense.

We also hold that the affidavit must allege not only a previous offense, but also a former conviction of that offense, in order to justify the increased punishment. To prove a second offense the State must prove a first offense and the proof of one must be as clear and certain as the proof of the other. Any proof of such first offense that falls short of the proof necessary for a conviction therefor would be inadequate. Such being the ease, if the accused is charged with and being tried for a second offense only, a first offense should be proved by a conviction therefor; otherwise the accused would be put upon his defense of two charges when being tried upon but one. In none of the eases before us was there any allegation of any previous conviction, nor was there any allegation that the defendants were being prosecuted otherwise than for the first offense, and we therefore hold that the court had no authority on any count of any one of the affidavits under consideration to punish the defendants otherwise than as for a first offense. Imprisonment, therefore, could not be a part of the punishment in any of these cases, and the mayor properly tried the defendants without the intervention of a jury.

Objection is also made to what may be termed the cumulative penalty in these cases, and attention is called to the case in which the mayor imposed a fine of $150, being a fine of $50 each on three separate counts for a violation of the Sunday law. The highest penalty that can be inflicted for a single offense under this statute, when the defendant is prosecuted for a first offense, is $100, and it is claimed that there is error in this action of the mayor.

Bishop’s New Criminal Procedure, Section 452, contains the following:

“By the practice everywhere, distinct misdemeanors may be joined in separate counts of one indictment, to be followed by one trial for all, and by one conviction for each, the same as though all were charged in separate indictments, subject to practical limitations from judicial discretion. So, in liquor selling, when made by statute a misdemeanor with a fine for each sale, several counts for distinct sales may be combined in one indictment and the accumulated penalty imposed.”

This clearly justifies the joinder of several counts for distinct offenses in one affidavit in misdemeanor cases where imprisonment is not part of the punishment, to be followed, by one trial on all of the charges and a fine upon each, with one sentence for the whole amount of the fine assessed upon the several counts in one affidavit, even though the accumulated penalty exceeds the maximum amount authorized to be assessed upon a single violation of the statute. Such is the general holding of the authorities upon this proposition, and the courts of this state are in accord with such holding. We refer to the following cases: Bailey v. State, 4 O. S., 441; Boose v. State, 10 O. S., 576; Eldredge v. State, 37 O. S., 191.

It is urged on behalf of the plaintiff in error* that in misdemeanor cases, prosecuted on behalf of the State where an indictment is not required, it is necessary that the filing of the affidavit be followed by the filing of an information setting forth the offense in the manner usual in informations in criminal cases.

We are not cited to any statute of this state which requires that an information be filed in the mayor’s court, nor are we cited to any holding in this state that such information is necessary. It is true the courts of this state have held that in cases where an information is proper, the information must be supported by an affidavit, and will quash the information unless an affidavit has been filed. State v. State, 3 O. S., 293; Eichenlaub v. State, 36 O. S., 140.

But no court has ever held, to our knowledge, that an information is essential to support an affidavit in cases of this character. The long established practice before justices of the peace and mayors in misdemeanor cases in this state has been to proceed upon affidavit and not upon information.

Hart, Canfield é Crolce and James M. Williams, for plaintiffs in error.

Albert V. Taylor, for defendant in error.

Sections 7131 and 7133 authorize certain magistrates, including mayors of villages, to issue warrants for the arrest of any person charged with an offense, upon the filing of an affidavit with such magistrate. There is no requirement in this body of the law, nor elsewhere that we have been able to discover, that with such affidavit an information shall be filed. After the arrest of the defendant, the provisions found in the Municipal Code confer jurisdiction upon the mayor to try the defendant. In this case that jurisdiction is found in Section 1824,

The foregoing disposes of all objections urged by the plaintiffs in error against the validity of the judgments below, and, finding no errors, the judgments of the court of common pleas affirming the judgments of the mayor of the village of Bay in the eight cases before us, are affirmed.