author: Laubie, J.

text:
    (Seventh Circuit — Mahoning Co., O., Circuit Court
    Oct. Term, 1885.)
    Before Judges Raubte, Frazier and Woodburv.
    N. Y., P. & O. R. R. Co. v. Margaret R. Parmelee et al.
    By virtue of the decree of ouster by the Supreme Court of the right of the Ohio & Pennsylvania Canal Company, to, and its privilege in maintaining the Ohio & Pennsylvania Canal, and its right to be a corporation of the State, (23 O. S., 121) there was a forfeiture of the easement of the canal company, and the land reverted to the devisees of the original owner of the. title freed from the incumbrance and burden of the easement.
   Laubie, J.

This case is an error proceeding from the common pleas ' court of this county.

The original action was brought by the plaintiff in error against the defendants, for the purpose of determining whether the plaintiff or the defendants are the owners of, or rather entitled to, the fund of $13,200, condemnation money arising in a proceeding for the appropriation of property in this county.

That was a proceeding commenced by the Cleveland & Ma-honing Valley Railway Co., against the parties to this case, plaintiff in error and defendants in error, for the purpose of appropriating property for the railroad track.

The condemnation money being claimed by each of the parties, was certified to and deposited in the common pleas court under the statute; and thereupon this plaintiff in error filed its petition in the court of common pleas to settle and determine the question.

■'The plaintiff in error claimed to be the owner of the lands appropriated, and therefore entitled to this fund. And the same claim was made upon the part of the defendant in error.

The property, appropriated was the canal-bed, tow-path and berme-bank of what wa| known as the Ohio & Pennsylvania Canal, and this the plaintiffs in error claimed to own by virtue of the fact of the ouster on the part of the supreme court ' of this State of the right of the Ohio & Pennsylvania Canal Co. to, and its privilege in maintaining this canal, and its right to be" a corporation of the State; the appointment by that court of trustees under the statute, to take possession of the property of the dissolved corporation, to sell it and wind up its affairs; and the fact that these trustees did sell at public sale these lands, canal bed, tow-path, berme bank and appurtenant land of the Canal Company to the Cleveland & Mahoning Valley Railway Co., which company bought it for the purpose of constructing its road, through the counties of Trumbull and Mahoning, to the State line ; that subsequently, or before the railroad was constructed over these lands, that company leased its line of road and con-, veyed its rights in these lands tg the Atlantic & Great Western Railway Co. and that the N. Y., P. & O. R. R. Co., the plain-tiff in error, is the successor of the Atlantic & Great Westera. Railway Co., and that it claimed by virtue of the proceedings here set out, to have been the owner of these lands and entitled-to this fund.

On the other hand, the defendant- claims that by virtue of the decree of ouster by the supreme court, there was a forfeiture of the right to maintain this canal, a forfeiture of the easement of the canal company, and that the land reverted to them as the devisees of the original owner of the title, freed from the encumbrance and burden of easement.

It appears that at the time of the construction of the canal over .these lands, the ancestor of these defendants owned the title; that there is no record of any conveyance by him to the Canal Company, nor is there any record of any appropriation of the lands by the Canal Company, and so far as it is known in the case, the Canal Company took possession of the land by the tacit assent" of the owner of the fee, and constructed its line of the canal across the lands, and thereafter kept possession and maintained its line of canal over and across the lands, the same as if it had acquired that right by appropriation proceedings. ,

It will thus be seen that the question to be determined between these parties is, what force and effect shall the decree of the supreme court have in determining the question of the right to maintain this easement after that decree.

It is said on the part of the plaintiff in error, that this easement was a perpetual one in the Ohio & Pennsylvania Canal Co., and belongs to it as the successor of the Ohio & Pennsylvania Canal Co., and equals for the purposes of easement, the fee, or has the same effect, for the disposition of this case, as if they had taken a fee; and they say that this easement could be lost by the Canal Company only in one of two ways: either by release of the easement, or an abandonment of it, and that it could not be lost or taken away from the Canal Company by this decree of forfeiture.

Conceding for the moment that this is true that it could be lost only by release or abandonment, it would bring us to the question of whether or not there was an abandonment of the right-of-way or easement of -the Ohio & Pennsylvania Canal Company. t ‘ *

Now, abandonment is a forfeiture of the right to property ; or it arises from the non-use of the right with reference to the property. And the effect of the decree of the supreme court was to declare that the Ohio & Pennsylvania Canal Co. had abandoned its line; and for that reason declared a forfeiture. The special charter of the Ohio & Pennsylvania Canal Co. provided, that in case in the space or period of one year at any one time the Canal Co. should neglect to keep its line of canal in repair, it should be deemed an act of forfeiture, and upon that provision of its charter, it was that the supreme court declared an ouster and forfeiture.

That case in the supreme court was commenced in March, 1869, and it found as a fact, that the Canal Company had for more than one year prior to the commencement of that proceeding neglected- to keep its line of canal in repair as required by the charter, and that the state having demanded the forfeiture under and by virtue of this provision of the charter, the court was compelled to decree the forfeiture or dissolution of the corporation, so that the decree itself of forfeiture was based squarely upon the negligence of the Canal Company in keeping its line of canal in repair.

In other words, that the Canal Company, substantially, had abandoned its line of canal. That is, the legislature had fixed in the charter what would be deemed an abandonment, the neglect to keep in repair for the space of twelve months at one time, and that was carried into the decree and declared to be a forfeiture by the provisions of the charter. So that, even looking at it as claimed by the plaintiff, that this easement might be lost by the Canal Company only by release or abandonment, this act or provision of the legislature, or provision of its charter I should say, was a declaring in effect what should constitute an abandonment by the company. But, aside from that proposition, and whether it be true or not, -there is another one about which there can be, we think, no dispute.

The decree was a decree of forfeiture of the rights, powers, privileges and franchises of the Ohio' & Pennsylvania Canal Companju

Now, among these rights are two very prominent ones. First, the right to be a corporation. Secondly, the right to operate and maintain a line'of canal. These are two of the leading rights and privileges of this corporation, one of which it could sell, and the other it could not sell. It could not sell or dispose of its right to be a corporation, nor could that be done by legislative enactment or judicial sale in this state, for the reason that it would be in contravention of a provision of the constitution, which provides for the individual liability of the stockholders; and if, even by legislative enactment, this right to be a corporation in the state of Ohio should be sold, or transferred, it could not in that act create a new corporation, whose stockholders were not and could not be made liable under the statute on their individual account as provided in the constitution, as stockholders of private corporations are liable.

And the supreme court of the state has so settled and fixed that for us, so that so far as the right to be a corporation is concerned, it could not sell or dispose of that.

Now, the other, the right to operate and maintain a line of canal, the company might sell or dispose of. And individuals, private individuals, might perform the act; that is, they might, as a business, operate and maintain a line of canal, and it is not necessary for that purpose that they should be incorporated.

And it has been held, that in this state this right to operate and maintain a line of communication like this may be sold and transferred.to private individuals.

Now, what is this right to operate and maintain a line of canal? It is a right acquired under its charter through the powers of eminent domain, to the right-of-way or the easement of the company. They are substantially synonymous terms. A conveyance of the line of right-of-way conveys to the purchaser a right to operate and maintain the canal. A conveyance of the line of easement does the same. And one term embraces as a description all which may be considered and held to be within the purview of the right-of-way or eSement for the canal.

It is the right to operate and maintain a canal across the lands of others in the state of Ohio.

Now, it is provided in the statute in regard to dissolved corporations, that its property shall vest in trustees to be appointed, as WcS done in the quo warranto case; and the title to real estate belonging to the company it is provided shall vest in the trustees, and shall be disposed of by these trustees for the purpose of paying the debts and winding up the affairs of the company, and that they shall convey a good and sufficient title to those lands.

Now, let us reflect a moment and see what would pass to the trustees. The Canal Company was entitled to purchase lands in fee by virtue of their charter; and they were entitled to condemn lands by appropriation proceedings by virtue of the power of eminent domain, vested in them by the sovereign power of the state.

These lands in question were not purchased in fee. They are to be regarded as lands taken under appropriation; so that we are relieved of the question to that extent. If there was any title in a fee vested in the Canal Company, as to all such lands belonging, as the statute says, to the company, undoubtedly the title, upon its dissolution, passed to the trustees.

And what title’ could pass to the trustees of the right to operate and maintain a line of canal through this state ?

The forfeiture declared, is a forfeiture of the rights, powers, privileges and franchises of the corporation. It is therefore a forfeiture of the right to be a corporation, and not the less is it a forfeiture of the right to operate and maintain a line of canal. Now, that latter right, being nothing b'ut the right to hold an easement in the lands of others, being forfeited at the very moment of the declaration of the dissolution of the corporation by reason of the forfeiture, it ceased to be the owner of the right to operate and maintain a line of canal through this state.

It was not, then, at the time of dissolution, as claimed by the plaintiff in error, the owner of these easements over the lands of others; it was not the owner of aright to operate and maintain a line of canal; it therefore had no property of that character which it could transfer, and which could be transferred to the trustees, and consequently the trustees acquired no such property which they could sell. In other words, they could sell no greater right or title than they took, and if they took none, they had none to convey, although they may have attempted to convey it.

Now, when the right to the use is taken away, the use itself ceases and falls with it.

It would be a farce, a judicial and legislative farce, if for reasons like these, the supreme court of the state should declare a forfeiture of the rights, powers, privileges and franchises of the corporation, dissolve that corporation, declare that it had no longer corporate life and existence, and declare that it could no longer have a corporate right to operate and maintain a line of canal through this state, and yet, at the same time, by the decree, transfer that right to trustees to be sold, and those rights immediately sold perchance to the same individuals composing the old corporation, they to hold'it then forever, in perpetuity, freed from any liability of any further forfeiture.

It would be a farce to say that the Ohio &. Pennsylvania Canal Co. is not vested of these rights any longer; that it had forfeited.them, and yet at the same time, say that they might sell or dispose of them to others, and those others, as I have said, might be the very parties who constituted and composed the Ohio & Pennsylvania Canal Co., and that these private individuals, acquiring that right, might maintain it forever.

Now, this question was undoubtedly in the mind of the supreme court when it dissolved this corporation.

This case is reported in the 28 Ohio St., page 121. In delivering the opinion of the court, Mcllvaine, Judge, refers to the claim made upon the part of the corporation that it.would work great injury to the people of the state that such a line, a great line of canal like this, should be forfeited and closed. And it is commented upon by the court as unfortunate that it should be lost to the.public, and regret is expressed that the state had not adopted measures to secure permanently to the public the advantages of this public work.

Looking squarely to the fact that the forfeiture declared by the court and the decree of ouster, forever closed that canal as a canal. That the right to operate and maintain it had ceased.

Now, it is oply by virtue of the provisions of the statute that any such transfer to the trustees, or the keeping alive on any such right, could be claimed to exist.

By the provisions of the common law, upon the dissolution of the corporation by forfeiture, it would lose such property ; it would be forfeited forever ; no one would claim for an instant that by the-provisions of the common law as.to forfeiture, this right to operate and maintain this line of canal could pass to anybody.

L. A. Pursell (of Cleveland), for plaintiff in error.

A. W. Jones (of Youngstown), for defendant in error.

It is only, therefore, by virtue of the statute of the state that these rights may be saved.

The statute, as I have said, provides that the title to the real estate belonging to the corporation shall pass to the trustees ; that they shall convey good and sufficient titles. But it looks solely to that which the corporation owns in fee. It no moie looks to the mere easement, to the right of way to operate and maintain its line, than it looks to the conveyance of the right to be a corporation.

There is, in our opinion, no right shown here on the part of the plaintiff in error to any portion of this fund. It belongs to the defendant, as heirs and devisees of Rayen, the original owner of the fee, who take the lands freed of the easement, and the judgment is affirmed.


source: Caselaw Access Project

author: Cox, J.

license: Public Domain

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Dec. Term, 1885.)
    Before Judges Cox, Smith and. Swing.
    Columbia & Cincinnati Street Railway Co. v. S. V. Wiseman.
    1. The superintendent of a railroad company, unless invested with special authority for that purpose, has no power to employ a physician and bind the company for payment therefor, in attending to a passenger inj ured on the road.
    2. Such authority may, however, be implied from all the facts and circumstances of the ease, but it is not necessarily inferred from the fact that he bears the title of superintendent. It is a question to be determined by the jury on the whole case.
    This is a petition in error to reverse the judgment of the court of common pleas. Wiseman, a physician, brought suit against the Columbia Street Railroad Compa'ny, to recover five hundred dollars for medical and surgical services rendered to one Charles Grossclaus, injured while a passenger of •the defendant, being run over by the defendant’s car.
    It is claimed on the part of the plaintiff below, that Grossclaus, on the 4th day of July, 1883, was a passenger on the Mount Lookout Dummy, and that he fell off and had his foot injured by the wheel of the ear; that one J. J. Henderson, who was the superintendent of the road, employed the plaintiff to take charge of him, and that the company, by reason of said employment, was responsible to the plaintiff for the services rendered.
    It was proven on the trial that Henderson was the superintendent of the road, had authority to employ conductors and brakeman, to keep the road in repair, see that the engines and cars were in proper condition ^nd ran at proper times, and to attend to the time table.
    The defendant denies, first, that Henderson had employed Wiseman; second, that he had the authority to so employ him. The testimony upon the authority of the employment was“ conflicting. Two policemen testified that they took Grossclaus to the post-office, and Henderson, who was the superintendent of the railroad company, told them to get Dr. Stark and Dr. Carver, who were the physicians of the railroad company, and that not finding either of them, they called in Dr. Wiseman ; and that Henderson ordered a carriage and directed Dr. Wiseman to take Grossclaus to Newport, Kentucky, where he lived, and that he would pay the bill.
    Henderson denied any employment of Dr. Wiseman, and said that he simply had the carriage called and Grossclaus taken home — not by virtue of his authority as superintendent —but as a mere matter of humanity. And upon the question of his authority to employ a physician, that was expressly denied by himself, and- also by the Vice-President of the road, who had the authority to employ the superintendent, and to invest him with such authority as he had.
    It was claimed on the part of the plaintiff below that, being superintendent, he had a right to employ a physician in this case, by virtue of his office as superintendent. This was denied on the opposite side.
   Cox, J.

As to the question of law in this case, a superintendent of a railroad, unless invested with special authority for that purpose, has no power to employ a physician and bind the company for his services, to attend to a passenger who is injured on the road. This has been settled in. numerous cases. (30 Law Reports; 3 Ex. Rep., 268; 2 Duer, N. Y., 341; 28 Mich., 293; 42 Conn., 586; 80 Ky. Rep., 167; 75 Mo. Rep., 492; 67 Mo., 122; 54 Mo., 177.)

The authority of a superintendent to employ a physician may, however, be implied from all the facts and circumstances of the case, .but is not necessarily inferred from the fact that he bears'the title of superintendent. It is a question of fact for the jury upon the whole case.

It is contended, however, upon the part of the plaintiff, that, being a superintendent of the road, having the management of it, he had such authority, and could so bind the company,; and we are cited to a number of cases, which, it is claimed, support that proposition. (2 Law Reports, 2 Ex., 228; 47 Ill., 188; 28 Mich., 300; 50 Ill., 26; 18 Kansas, 458; 19 Kansas; 24 Kansas, 228; 82 Ill., 73.)

But all these cases go to the point that where the injured person is an employe of the company, the superintendent has the right to bind the company by employing a physician or surgeon to attend him. They draw a distinction between the passenger and the employe, on the ground that the employe is necessary in the management of the affairs of the company, and that the company, for its own protection, and for the protection of the employes, owes a duty to them which it does not owe to the passenger.

A number of exceptions were taken by the defendant to the charge of the court as given, and to the refusal of the court to give others as asked. Upon an examination of the charge of the court, we think it can fairly be inferred that he left it to the jury to consider upon all the testimony in the case, whether the superintendent had the authority to bind the company, and that it was a question of fact for them to determine. And we think that that was a proper charge. The charge was lengthy, and some parts of it were, perhaps, confusing to the jury; but taken as a whole, the propositions laid before them were so stated as that they could understand them.

The testimony, however, clearly showed, we think, that the superintendent had no such authority ; and it was not made to appear, by a preponderance of the testimony, even that he had employed the plaintiff to perform the services for which he sought to recover.

Wallace Burch, for plaintiff in error.

Campbell, Bates & Bettman, for defendant in error. -

We think, therefore, that the judgment was against the weight of the evidence, and that the court erred in not granting a new trial. The judgment will be reversed and the cause remanded to the court of common pleas for further proceedings.


author: Woodbury, J.

text:
    (Seventh Circuit — Noble County, O., Circuit Court
    Dec. Term, 1885.)
    Before Judges Laubie, Frazier and Woodbury.
    Trustees of Noble Township v. G. A. Way.
    Trustees of township may, in a proper case, afford public relief to persons in a condition requiring the same, without waiting for the notice provided for in Sec. 1494.
    Error to the Court of Common Pleas of Noble County.
   Woodbury, J.

Dr. Way brought an action against the Trustees of Noble Township, to recover the value of medical and surgical services rendered by him to John Smith, a pauper, resident in said township. .

The petition further alleges that Smith, at the time, was in a condition requiring the services of a physician and surgeon; that he was a bona fide resident of said township, and that Dr. Way was a practicing physician and surgeon. “ That prior to the rendering of said services and furnishing said medicines, notice according to law was given to the trustees of said township, and said plaintiff was directed' and instructed by the trustees of said township to treat John Smith for his then sickness and ailment, which medicines and services were thereafter rendered and furnished in pursuance of said directions and instructions.” That said account was just and reasonable, and that payment of any part had been refused by the trustees.

To this petition the defendant demurred, which was overruled, and plaintiff had judgment below.

The overruling of that demurrer is assigned for error.

It is insisted by counsel for plaintiff in error, that the liability of the township is fixed by section 1494 of revised statutes, and that the extent of that liability is such amount as the trustees determine to be just and reasonable. That the award of the trustees is the sole, final and exclusive remedy for a claimant such as this.

It is claimed for defendant in error, that under section 1494 the trustees must determine a just and reasonable sum; that the trustees cannot determine nothing to be a reasonable compensation. </

The view we take of this case renders it unnecessary to consider the conflicting claims of counsel as to the proper construction of that section. The general liability of the township is fixed, not by section 1494, but by section 1491. That section provides that the trustees of each township shall afford, at the expense of their townships, public relief to all persons therein, who may be in a condition requiring the same, subject to the conditions, provisions and limitations thereafter following. The next two sections provide who shall be entitled to relief, and how a person’s settlement is to be determined. The next section (1494) then provides, that when a person is in a condition requiring relief, or the services of a physician or surgeon, complaint thereof shall be forthwith made to the trustees, and if medical services are required, the physician called shall immediately notify the trustees in writing, and thereupon the township shall be liable only in such amount as the trustees determine to be just and reasonable.

It will be observed, that if a person desires to charge the trustees with the relief of a pauper, without their consent, that it can be done only by giving notice under section 1494. And when notice has been given in a proper case, the township becomes liable. But this section is simply a limitation upon section 1491, and the petition in this case makes a different case from that provided for in the former section. The petition charges that the trustees directed and instructed plaintiff to treat Smith, and that he thereafter rendered said services in pursuance of said direction and instruction.

It is not the case of a physician treating a pauper, who immediately after entering upon the service notifies the trustees of that fact; but it is the case of the trustees, having a person on their hands in a condition requiring public relief, directing and instructing a physician to furnish the relief, who thereafter does so.

McGinniss & Weems, for plaintiff in error.

D. S. Spriggs, for defendant in error.

The provision of section 1494 is not exclusive.

The trustees, in a proper case, under section 1491, may furnish the relief, and if the trustees take the initiative and solicit a person to furnish the relief in a proper case, the township becomes liable for its reasonable value. The township is liable generally for relief under the first section; hut is liable only in tbe manner pointed out in the subsequent sections, where the relief was furnished in pursuance of them.

The trustees are not liable because he notified them after entering on the service, but because they notified him to render the service, which he thereafter did. The demurrer was properly overruled.

Judgment affirmed.


author: Haynes, J.

text:
    (Sixth Circuit — Lorain County, O., Circuit Court
    Dec. Term, 1885.)
    Before Judges Upson, Baldwin and Haynes.
    Jeremiah Buckley v. The Commissioners of Lorain Co.
    In an action to enjoin the county commissioners from apportioning to plaintiff’s land, any portion of the cost of locating and constructing a proposed ditch, the court, having found there was no error in the record of the proceedings locating the ditch, may, upon the final hearing of the ease, under section 4491, Revised Statutes, hear oral testimony as to the justice of the apportionment, and if the testimony produced upon said hearing, shows that the land of plaintiff will not he benefited by the proposed ditch, may perpetually enjoin the said commissioners from apportioning or assessing any portion of the cost or expense of said proposed ditch upon land of plaintiff.
    This is an action originally brought to enjoin tbe Commissioners of Lorain County, from constructing a proposed ditch across the lands of plaintiff, or assessing his lands with any portion of the cost of the same, upon the ground that the proceedings of said commissioners, in locating said proposed ditch, are illegal and void, and that said ditch will, if constructed, be of no benefit to the lands of the plaintiff, for the reason that said lands already have abundant natural drainage. The case came on for hearing upon the records of the proceedings of the commissioners in locating said ditch, and the court having held said proceedings regular and valid, the same was then, upon final hearing, submitted to the court upon oral testimony, taken subject to exception, as to whether the proposed ditch, if constructed, will be of any benefit to the lands of the plaintiff.
    The testimony showed that the proposed ditch is intended to drain a marsh of some twenty-five or thirty acres in extent, by opening certain watercourses, one to the east and one to the west, called main ditches, and that from these main ditches lateral ditches were projected across the plaintiff’s land.
    The marsh is situated in a basin, and plaintiff’s land is upland, some third of a mile from the marsh, and at least twenty-five or thirty feet above it.
    Across plaintiff’s land is a depression or run, being a natural water channel, along which all the water, accumulating bn his farm, or coming from beyond’ it, runs down across the intervening lands into the marsh, and fully drains said land of plaintiff.
    Upon making the apportionment of work to be done upon both the main and lateral ditches, a greater amount per acre was assessed by the engineer and commissioners upon the lands of plaintiff, then upon the lands of the owner of the marsh lands.
    This was done upon the theory entertained by these officers, that owners of the upland are bound in law to take care of the water falling or coming upon the upland, and riot permit it to run down into the marsh, even though it should run in natural water channels; and as the owner of the upland did permit such water to run down into the marsh, that they should pay the greater part of the cost and expense of draining the same from the marsh.
   Haynes, J.

In this ease we find from the evidence, that the proposed ditches will, if constructed, be of no practicable benefit to plaintiff’s land; that his land is already sufficiently drained by the natural water course across it.

Question is made:

Whether we can hear oral evidence to show that the plaintiff’s land is not benefited by the proposed ditch ?

Whether the finding of the commissioners is not conclusive upon that question ?

Section 4491, Revised Statutes, provides that, “ without finding error the court may correct any gross injustice in the apportionment made by the commissioners ; the court, on final hearing, shall make such order in the premises as shall be just and equitable * * may perpetually enjoin such tax or assessment.”

We have heretofore found that there is no error in the proceedings in locating the proposed ditch.

The fundamental principle which should govern the commissioners in making apportionment and assessment of cost and expenses of the work to be done, is briefly stated in Sec. 4455, Rev. Stats., wherein it is directed that the apportiohment to each lot or tract of land shall be “ according to the benefits which will result to each from the improvement.”

This provision of the statute will be more clearly understood by reference to some decision. of the Supreme Court of this State, discussing and defining the nature and character of local assessments.

It may be premised that assessments made by municipal corporations for improvement of streets and construction of sewers are of the same nature as assessments by township officers and commissioners of counties for constructing ditches of the kind in question.

In Hill v. Higdon, 5 Ohio St., 243, the question of the constitutionality of laws authorizing municipal corporate authorities to levy special assessments upon property particularly benefited was raised, and fully discussed, and the court held: “ Legislation authorizing cities and villages to levy special assessments, for the purpose of improving streets, upon real estate particularly and specially benefited, and in proportion to such benfit, is not repugnant to any provision of the constitution.”

In. Reeves v. Treasurer of Wood County et al., 8 Ohio St., 338, the same question was raised in regard to the right of trustees of townships to locate ditches and assess the cost of same upon lands benefited, and it was held that the right existed.

In each of these cases discussion is had of the character of assessments as compared with ordinary taxes, and in each it is said, “taxes are impositions for purposes of general revenue.”

“ Assessments are special and local impositions upon property in the immediate vicinity of an improvement, for the public welfare, which are necessary to pay for the improvement, and laid with reference to the special benefit which such property derives from the expenditure.”

In Chamberlain v. The City of Cleveland, 34 Ohio St., 551, it is said by the court:

“ To enable a municipal corporation to pay for a local public improvement, it may, by assessment, take from an individual whose lands are subject to assessment, such a portion of the cost thereof as is the equivalent, but not in excess, of the special benefits conferrred thereby.”

2. “ The whole amount of the assessment must be apportioned amongst the several lots and “parcels of land specially benefited, in the proportion that the special benefits to each lot or parcel bears to the0 whole special benefits conferred by the improvement.”

At page 561, in delivering the opinion of the court, Judge Gillmore says:

“ The right that gives to municipal corporations the privilege of resorting to this mode of taxation is not like the right of general taxation in the state founded on necessity; on the contrary, the right of a municipal corporation to assess private property to pay for a local public improvement is not founded on necessity, but upon principles of justice, by which the public may take from an individual, whose lands owing to their proximity to it are specifically benefited by the improvement, such a portion of the cost thereof as is the equivalent, but not in excess of the special benefits conferred by the improvement; and this principle of justice in itself impliedly furnishes the measure; and limits the extént of the right.”

And .at page 562, “ But when the property has paid the value of the special benefits so conferred, its owners stand in the same relation to any residue of the cost of the improvement remaining unpaid, that other members of the public do, and all must bear the burden of paying such residue by general taxation. If a sum be exacted in any instance in excess of the value of the special benefits conferred, it is as to such excess, in that instance, private property unjustly taken for public use without compensation to the owner.”

Enough has been cited to show-the nature and character of an assessment and the foundation upon which it stands.

It was further held in the Chamberlain pase cited above, by a majority of the court, “ that when the city council determines that the amount of the assessment does not exceed the benefits conferred, its judgment in the premises in the absence of fraud is final and conclusive; but when the municipal authorities do not undertake to determine the amount of the special benefits conferred, either in respect to the amount assessed or in the apportionment of the burden, the assessment may be enjoined; and in an action for that purpose, parol evidence may be introduced to show that the authorities did not act upon the proper basis.

The judge dissenting held, that in this State courts may interfere in matters of this sort when great injustice is done, even though fraud be not shown.

We think the clause in section 4491, that gives the courts power to correct gross injustice in apportionment made by the commissioners, was put in the statute to meet and obviate the very objection made herein; to-wit, that the finding of the commissioners is conclusive, and that the court in order to act intelligently, must hear evidence as in other cases. We think,'therefore, that the objection to the admission of oral evidence is not well taken, and that the court has the power to grant injunction as prayed.

That the apportionment is grossly unjust we have no doubt from the evidence.

It has arisen, not from any intentional wrong on the part of the commissioners or officers making the apportionment, but in part from mistaken ideas as to the duty of the owners of the upland in regard to water upon their lands, and in part we think, from lack of a correct idea of the nature and character of an apportionment and assessment, and of the true principles that should govern in making the same.

That they were mistaken in their views of the duties of the owners of the upland,, will appear from the statement of the supreme court in a case that went up from this county ; in the case of Butler v. Peck, 16 Ohio St., 334, the court say, per Judge Brinkerhoff, at page 342: ‘

“ The principle seems to be established and indisputable, that where two parcels of land belonging to different owners lie adjacent to each other, and one parcel lies lower than the other, the lower one owes- a servitute to the upper to receive the water which naturally runs from it, provided the industry of man has not been used to create the servitute.” And to the same effect is Tootle v. Clifton, 22 Ohio St., 247.

We are of the opinion that the plaintiff is entitled to the relief prayer. It is therefore ordered, that the defendants be enjoined from apportioning or assessing any portion of the cost or expenses of the said ditch against the land of the plain tiff. t


author: Follett, J.

text:
    (Seventh Circuit — Guernsey County, O., Circuit Court
    June Term, 1885.)
    Before Judges Laubie, Woodbury and Fobbett. (Judge Follett of the Fifth Circuit, talcing the place of Judge Frazier.)
    James A. Elder v. The Bellaire, Zanesville & Cincinnati Railway Company.
    Where a donation was made of a sum of money to a railway company, payable “ at any time within two years ” that said line may be constructed and operated between given points, •' provided the depot at C. is permanently located not farther east than the centre of C.” held :

    That the proviso in relation to the location of the depot is a condition precedent to the right to collect the amount of the donation.
    Error to the Court of Common Pleas of Guernsey County.
    The case is stated in the opinion.

      Steele & Bosemond, for plaintiff in error:
    The note sued on was an offer by Elder to do a certain thing, was a unilateral promise; and did not become, and has not become a contract, because the company has not accepted it. Pollock on Contracts, 160, note b ; 180, note f; 1 Addison on Contracts, 82, Sec. 17; Chitty on Contracts, 9,15; 1 Parsons on Contracts, 374-5.
    Performance, if it had been made in compliance with the térms of the offer, would have been an acceptance. Authorities supra.

    The performance alleged in the petition is not such performance, and therefore did not constitute an acceptance.
    This question was raised in R. R. Co. v. Brown, 26 O. S., 223, and in Same v. Stout, ib., 241, and in Warner v. Callender, 20 O. S., 190, but was not passed on because in those cases there was no pretense that the performance was not made. Those cases, too, were cases of subscriptions to the stock, not donations.

    The principles in the Chamberlain case, 15 O. S., 225, settle this case in favor of Elder, although applied to a different state of facts in that case. The facts in that case differ materially from this:
    1. Elder is not a subscriber to the stock, and the reasons given why Chamberlain should pay what he didn’t want to are not reasons why Elder should pay what he didn’t agree to. 2. A principal reason given why Chamberlain should be held was that to construe his subscription literally, a depot was to be built before the track was laid, while in this case the road is to be “ constructed ” and “ cars run ” before the depot is “permanently located.” 3. Elder offers to give upon condition. 4. Elder has done nothing to give this contract a different construction by b is conduct. 5. In the Chamberlain case it was apparent on the face of the contract that the subscription was to be used in constructing the road. It was to be paid in installments as the directors might require. In this case the road is first built, and that fact is pleaded as a performance.
    Elder had the right to hamper his offer to give with such conditions as he saw fit.
    In construing a paper partly printed and partly written, especial attention should be given the part in writing, because the attention of the maker, it will be presumed, was particularly drawn to that part.

      W. F. Hunter, for defendant in error :
    Cited, 2 Parsons on Contracts, 527 and 527, note r ; Pierce on Railroads, 62-3; Chamberlain v. R. R. Co., 15 O. S., 225, 243; Warner v. Callender, 20 O. S., 190, 197; M. C. & L. M. R. R. v. Stout, 26 O. S., 254; Kane v. Stone Co., 39 O. S., 1, 10,-11.
   Follett, J.

The petition by the company alleges, that James A. Elder executed and delivered to it his written obligation in the following words and figures:

“|25.00. Cumberland, Ohio, Nov. 25, 1882.
Eor and in consideration of the undertaking by the Bellaire, Zanesville and Cincinnati Railway Company, to construct a railway under their certificate of incorporation, and of the pecuniary advantages and benefits thereby accruing to me, I promise to donate, and hereby agree to pay to the Bellaire, Zanesville & Cincinnati Railway Company, or order, twenty-five dollars, and pay the same at any time within two years that said line of railway may be constructed from the Burnt Mills to Cumberland, so that the ears can pass over the same: Provided, the depot or station-house for Cumberland is permanently located not further east than the centre of said town. James A,. Elder.”

It appears from the exhibit attached to the petition, that all that part subsequent to the words “ pay the same ” is written, while that preceding is an ordinary printed blank, with blanks filled in with pen.

The petition further alleges, that said’eompany did construct its .road from Burnt Mills to Cumberland; that the cars could and did pass over the same, and said railway is in operation between said points; that after so complying with said contract, said company, which still owns and holds said contract, demanded payment. That in complying with said contract plaintiff expended large sums of money, and did great labor, to the knowledge, at the time, of Elder, and upon the faith of of his promise. . ‘

To this petition Elder demurs. That raises the question as to the sufficiency of the alleged performance, and the further question whether the proviso contained in the obligation of Elder is a condition precedent or subsequent, or stipulation merely, for the failure to comply with which, by the company, Elder might recover.

In the light of the principles laid down in the Ohio cases, and especially the case of Chamberlain v. The R. R. Co., 15 O. S., 225, we are of opinion that the petition is insufficient. Elder is not a subscriber to the stock, nor does the language of his donation indicate an obligation in praesenti. He promises to make a donation at any time after certain things are done. It was not in contemplation of the parties that Elder’s donation was to be used in constructing the road. We think it clear that Elder’s agreement is to give the company $25.00, upon the condition that it shall first construct its road and permanently locate its depot at a certain point. Both provisions are written in at the bottom of the blank. It seems manifest that they did not intend one to be a condition precedent and the other a condition subsequent.

In Chamberlain’s case the road was* to be permanently located, and a freight house, by a separate clause, was to be erected. White, J., says, p. 244 : “ If the party intended that the building of both should concur before his rights and liability as a stockholder should attach, it seems to us he would have applied the same or similar language to both.” In this case he does: “at any time * * that said line .* be constructed ; provided the depot * * is permanently located, etc.”

Of these conditions there is no objection to a subscriber inserting as many as he may chose, says White, J., supra, and until they are performed, the relation of the subscriber to the company as a stockholder does not arise. Much less would the obligation of a stranger become fixed.

The petition is insufficient without an allegation that the depot has been permanently located as provided in the promise. The demurrer should be sustained.

Judgment reversed.


author: Albaugh, J.

text:
    Fifth Circuit — Ashland Co., O., Circuit Court
    October Term, 1885.
    Before Judges Abbaugh, Jenner and Follett.
    Gaar, Scoot & Company v. George Snook.
    S. purchased a steam saw mill and attachment of G. S. & Co., who warranted that “the saws were free from seams and flaws and as true as saws can be made; ” said mill and saws to be delivered at a certain time. In an action to recover the purchase price, S. claimed damages resulting from a loss occasioned by the failure of G. S. & Co. to furnish suitable saws according to the terms of said warranty, wherby S. was prevented from fulfilling a contract, made after the delivery of said mill, for the sawing of a lot of logs, and was deprived of the profits thereof.

      On demurrer to this defense by G. S. & Co., Held, that the claim for damages was in its nature for the loss of future profits, and of such remote and uncertain character as would not authorize a recovery.
    ERRor to the Court of Common Pleas of Ashland County.
    The plaintiffs brought suit upon four promissory notes, each calling for the sum of $108.00 executed by the defendant, dated January 20th, 1881 and payable in three, six, nine, and twelve months respectively, with interest, and to foreclose a chattel mortgage given to secure the payment of said notes upon a steam saw mill and attachments.
    The defendant filed his answer, and in the first defense admitted the execution of the notes and chattel mortgage, and avers that said notes were given as part consideration for a steam saw mill, including saws, purchased of the plaintiffs about the 20th of January, 1881; that at the time of said purchase the plaintiffs warranted in writing “ all saws free from seams and flaws and true as saws can be made.” That the the plaintiffs agreed to deliver said mill at the railroad depot at Ashland, O., January 20, 1881, fully equipped with saws ready for use. That the plaintiffs failed to deliver said mill until the 19th day of February, 1881, during all of which time the defendant was unemployed and at the expense of paying hands engaged by him to operate said mill.
    That after said mill was received, the defendant could not operate the same because of th'e defective manner in which said saws were made, by reason of which loss of time and expense the defendant claimed damages.
    As the second defense the defendant avers, that between the 20th day of January, and the 1st day of April, 1881, he had contracted with sundry parties in Ashland county to saw for said parties 850 logs, depending and relying on the contract with the plaintiffs, by the. terms of which they were to furnish him with said saw mill fully equipped with saws and attachments to do said work. That said parties depended and relied upon him to do said work, said logs having been drawn together ready for that purpose; bui in consequence of said plaintiffs not furnishing said defendant with a mill and saws as they had agreed to do, and in consequence of their failure to make good their said contract with the defendant, he lost the sawing of said logs, wherefore he claims damage in the sum of $250.
    To the second defense in the answer the plaintiffs demurred. The court overruled the demurrer, and plaintiffs excepted and filed their reply thereto. The case was tried to a jury and a verdict rendered for the defendant upon his claim for damages.
    A motion was made for a new trial and overruled,and a bill of exceptions taken; a petition in error is now filed in this court to reverse the judgment of the court of common pleas.
    It is assigned as error that the court erred in overruling the-demurrer to the second defense of the defendant’s answer.
    2. In admitting certain evidence offered by defendant against the plaintiffs’ objection, and excluding evidence offered by the plaintiffs. And also in the charge to the jury.
   Albaugh, J.

The decision of the question raised by the demurrer to the second defense in the answer of the defendant, disposes of the other assignments of error in this case, for the reason that they all relate to that defense.

The claim here made for damages is based upon the failure of the plaintiffs to furnish a saw for said mill that corresponded with the terms of the warranty given at the time of the purchase, and that by the breach of the contract of warranty, the defendant was deprived of the profits he would have realized in sawing the lot of logs which he says he had contracted with certain parties to do.

It is claimed on behalf of the plaintiffs that the claim is in the nature of special ór consequential damages, of such remote and uncertain character that no rule could be-established with certainty to authorize a recovery ; that if there was a breach of contract in this respect, that it was not the proximate cause of the damages claimed.

The question presented is: can the defendant recover more than the damages arising directly from such breach, such as would make him whole, and give him as good machinery as he contracted for, or its equivalent, or has he a right to go further and recover for such damages as he claims to have sustained by reason of contracts made with other parties, for whom he agreed to do sawing and which he was prevented from doing by. reason of the breach of contract on the part of the plan tiffs?

There is no claim that'the sale of this mill was made with reference to any particular contract which the defendant had made with others for sawing, or that the plaintiffs knew that any such contract had been made or would be made, or that the mill was sold to do any particular job of work. It was a general sale for a specific price, with warranty that the saws should be of a certain kind and quality.

The injury complained of is the loss of profits which the defendant expected to realize from his contract to saw this lot of logs. “It is not a primary rule, but is a mere deduction from that more general and fundamental rule, which requires that the damages claimed should in all cases be shown by satisfactory evidence to’ have been actually sustained ; and it is a well established rule that the damages to be recovered from a breach of contract must be shown with certainty, and not left to mere speculation or conjecture. And it is under this rule that profits are excluded from the estimate of damages in such cases. An allowance of damages upon the basis of the calculation' of profits would be in the highest degree unfavorble to the interests of the community. The calculation would proceed upon contingencies and conjectures, and not upon facts.” Ex parte Schooner Lively, 11 Gall., 315.

In Blanchard v. Ely, 21 Wend., 342, the court say: In general the parties are deemed to have contemplated only the damages and injury which result from the non-performance of the obligation in respect to the particular thing which is the object of it, and not such as may have been accidentally occasioned thereby in respect to his own other affairs. This rule applies to cases when by reason of special circumstances, having no necessary connection with the contract broken, damages are sustained which would not ordinarily or naturally flow from such breach; as where a party is prevented by the breach of one contract from availing himself of some other collateral and independent contract entered into with other parties, or from performing some act in relation to his own business not necessarily connected with the agreement; in such cases the damages sustained are disallowed, not alone because they are uncertain, nor because they are merely consequential or remote, but because they cannot be fairly considered as .having been within the contemplation of the parties at the time of entering into the contract.”

Also in the case of Griffin v. Colan, 16 N. Y., it was held that the damages must be such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract; that is must be such as might naturally be expected to follow its violation; and they must be certain, both in their nature in respect to the cause from which they proceed, and they must be not the remote, but the proximate consequence of such breach, and must not be speculative or contingent.

In Rhodes v. Baird, 16 O. S., 573, an action was brought' on a contract by which the defendant agreed to make a lease for a term of years to the plaintiff of certain lands, on which to plant and cultivate a peach orchard. The breach consisted in the failure of defendant to make the lease, and in his causing the plaintiff within two years from his taking possession • to be evicted from the premises; — but after the peach trees were planted. On the trial, the plaintiff'was permitted to give evidence of the probable profits that night in the future be realized from the orchard. It was held that the evidence as to probable future profits was incompetent as furnishing a basis for the assessment of damages, such evidence being uncertain and speculative in its nature, and in a great degree conjectural.

In Masterton v. Mayor of Brooklyn, 7 Hill, 61, it is said: When the books and cases speak of the profits anticipated from a good bargain as matters too remote and uncertain to be taken into the account in ascertaining the measure of damages, they usually have relation to dependent and collateral engagements entered into on the faith and in expectation of the performance of the principal contract. The performance or nonperformance of the latter may, and often doubtless does exert a material influence-upon the collateral enterprises of the party, and the same may be said as to his general affairs and business transactions; but this influence is altogether too remote and subtle to be reached by legal proof or judicial investigation. But profits or advantages which are the direct and immediate fruits of the contract entered into between the parties, stand upon a different footing. These are part and parcel of the contract itself, entering into and constituting a portion of its very elements, something stipulated for, the right to the enjoyment of which is just as clear and plain as the fulfillment of any other stipulation. They are presumed to have been taken into cousideration and deliberated upon at the time the contract was made,, and formed perhaps the only inducement to the arrangement.”

In Fleming v. Beck, 48 Penn. St., 309, it was also said that “ a very small part of the machinery of a mill or factory may be so essential to its running, that the want of it will stop operating until this part be amended or replaced, causing a large loss by suspension ; but who has ever supposed that the mill-right or mechanic, who undertakes to repair or replace it and whose compensation may be only a few dollars, by his implied contract to do his work in a workmanlike manner to be held liable for the losses of the mill being idle ? But few men could be found to do work at a risk so great for a compensation so inadequate; but when by the terms of a special contract, or the facts brought in view at the time, the attention of the party is called to the fact that the risk is to be his, and he enters into the contract with this consequence in his mind, he may be held to another measure of compensation.”

By the terms of this contract the plaintiffs were bound to furnish the saw mill in complete running order with saws, corresponding to the terms contained in the warranty, and in case they failed in this, they would be liable only for the direct consequences of their omission to do so, and not for damages arising from the collateral engagements of the defendant with other parties, in which the plaintiffs could in no way participate. The contract can not be interpreted so that it may be inferred that the damages of this kind were within the- contemplation of the parties when it was executed. The law does not hold one liable for all the consequences that may follow the breach of his contract; if it were so, his liability would be without limit, for it would continue as far as the consequences of his act could be traced. But the law wisely limits liability to the direct and immediate effects of the breach of a contract. The damages claimed in this defense are not of,that character. They resulted remotely from the fact that the, plaintiffs failed to furnish the mill according to the contract, and are not the natural and proximate consequence of the breach of the contract.

J. W. and George B. Smith, for plaintiffs.

Campbell and Grosscup, for defendant.

We are of the opinion that the demurrer should have been sustained. The judgment is, therefore, reversed.


author: Swing, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    October Term, 1885.)
    Before Judges Cox, Smith and Swing.
    State of Ohio, on the Relation of John Wentzell, v. Philip C. Fosdick et al.
    When a question of law has been directly decided by one, of the circuit courts of Ohio, it should be followed by the other circuits, unless it clearly appears to the court that the decision is wrong.

      State ex rel. Dent v. Balloway, 1 Circuit Court Reports, 157, followed.
    Action in quo warranto.
   Swing, J.

This action is brought on the relation of Wentzell in the name of the state, under sections beginning with No. 6760, of the Revised Statutes, which provide for proceedings in quo warranto.

The allegations of plaintiff’s petition in substance are, that the defendants unlawfully usurp, hold and exercise the office of directors of the extension of the Lower River Road Turnpike Company.; that said defendants were not legally elected to said office, but on the contrary, that he, the relator, was-elected a director of said company, and thereupon he sets out the number of shares voted and the manner in which they were‘voted at the last election for directors of said company. The plaintiff bases his case on the claim, that section 3245, of the Revised Statutes, provides for what is known as cumulative voting. The section referred to is as follows: “ At the time and place appointed, directors shall be chosen by ballot by the stockholders who attend for that purpose, either in person or by lawful proxies; each share shall entitle the owner to as many votes as there are directors to be elected.” Shortly after the case was argued, the Law Bulletin contained a note saying that this question had been passed upon by the judges of the seventh circuit, and that the opinion would be published. It is now published and will be found in the Law Bulletin, Vol. XIV., p. 157 Circuit Court Reports. In this opinion the court hold that this sectiop does not authorize cumulative voting, and further, that if it did, it would only apply to the first election of directors.

H. C. Secrist, for plaintiff.

Logan & Slattery, for defendant.

This case is, so far as we know, the only case in Ohio in which this section has been construed. Without going into a consideration oí the question as to the correctness of this decision, we may say, that while, as to some of the court, we are not without doubt as to the correctness of this decision, as to the section conferring cumulative voting, still we think that we should follow it, and in doing so desire to say, that we think that unless it clearly appears to the court that the decision is wrong, that it should be followed.

One of the reasons that operated strongly to bring the circuit court into existence, was to provide a uniform administration of the law throughout the state, in this intermediate court. The constitution provides that such judge shall be competent to exercise his judicial power in any circuit, and section 451, of the Revised Statutes, provides, that a majority of said judges may make and publish uniform rules of practice for all the circuits. These provisions clearly show, as far as they go, that a uniform administration of the laws by this court is-intended.

And while these decisions should not have the binding authority on the other circuits that a decision of our supreme-court has, still they should have an authority beyond those decisions which are authority merely in proportion to the weight of the reason that they contain, and especially should this be true as to a construction of our statutes. As to this part of the case, we therefore follow this decision. The petition will, therefore, be dismissed.


author: Shauck, J.

text:
    (Second Circuit — Franklin Co., O., Circuit Court
    January Term, 1886.)
    Befóse Williams, C. J., and .Stewart and Shauck, J. J.
    Columbus, Hocking Valley & Toledo Railway Co. v. Celley, Adm’r, etc.
    1. One entering tlie service of a railroad company in the capacity of conductor of a train, has a right to exact from the company such care in the inspection of the cars composing his train as is usual among those engaged in the operation of railroads, and no more.
    2. In an action against a railroad company for negligently causing the death of an employe, it is incumbent upon the plaintiff to show negligence on the part of the company presumedly causing the death.
   Shauck, J.

In this case the plaintiff in error seeks a reversal of the judgment rendered against it in the court of common pleas, upon the sole ground that the verdict and judgment there are against the manifest weight of the evidence.

The following facts are not controverted :

That on the 20th day of October, 1883, and for about two years prior thereto, the defendant’s intestate, Nathan F. Celley, was employed by the plaintiff as conductor of a freight train; that on the morning of that day he was sent with an engine and crew to bring a train of thirty loaded ears with a caboose attached from the village of Nelsonville, sixty miles distant, to the city of Columbus; that upon his return, when within a few miles of the city, and while the train was descending a grade of about a mile in length, the brakes were set upon the rear car, as is customary for the purpose of keeping the train taut; that upon reaching Walnut creek at the foot of the grade, one of the wheels in the rear truck of the rear car — that immediately in front of the caboose in which Celley was riding —broke, and caused the caboose to be precipitated into the creek, a distance of some thirty feet; that Celley was caught in the broken timbers of the caboose and killed; that the accident which resulted in Celley’s death, was caused by the breaking of the wheel, which was due — as was subsequently discovered — to a crack or flaw in the wheel, whereby it was insufficient to resist the expansion occasioned by the heat generated by the continued application of the brakes; that the company had exercised due care in the purchase and selection of the wheel; that it had no actual previous knowledge of the defect referred to, and that Celley was guilty of no negligence contributing to the accident which resulted in his death.

The definite subject of controversy is, whether the wheel, after being put intoone.of its cars, was subject to such inspection as would fill the measure of the company’s duty to its employe; and we are to determine whether the record contains such evidence as would warrant the jury, guided by instructions that are admitted to have been correct, in finding that the company failed of its duty in this respect.

The rules by which the duties and liabilities of employer and employe are to be deterimened in a case of this character, are firmly settled in Ohio. Those rules, so far as they are pertinent here, are as follows:

1. Within the scope of a railroad company’s duty to an employe engaged in the management of its train, it is bound to use' reasonable care in the employment of careful and competent inspectors of cars, and the means of repairing defects in those to be used in its trains.

2. A railroad company is not liable for an injury sustained by one of its servants which was caused by the negligence of a fellow servant engaged in the same employment.

8. Inspectors of cars in the yards of the company, and employes engaged in the management of its trains, are to be regarded as fellow servants engaged in a common service.

4. Although the conductor of a train of railway cars undertakes his engagement in view of the nature and hazards of his employment, he has reason to expect and a right to exact that reasonable care and diligence on the part of his employer, in furnishing such safe and sufficient cars and machinery for the train and such provisions for the inspection thereof, as is most common and usual in the business of railroad companies; and being presumed to contract in contemplation of this, he can require no more.

5. It is incumbent upon a plaintiff asserting a right of action founded upon the negligence of the defendant, to prove affirmatively negligence causing the injury of which he complains. The presumption of law is, that neither party was guilty of negligence, and such presumption must prevail until overcome by proof. Railroad Co. v. Webb, 12 O. S., 475; Railroad Co. v. Fitzpatrick, 42 O. S., 318; Railroad Co. v. Barber, 5 O. S., 541; Railroad Co. v. Crawford, 24 O. S., 631.

From the rules furnished by these decisions, another that is pertinent to this controversy, is plainly deducible, viz.:

Within the scope of the company’s duty to its employes engaged in the management of its trains, it is bound to employ such number of competent inspectors as may be necessary, in view of the extent of its business, to make such careful inspection of the cars composing its trains, as is common and usual in the transaction of the business of railroad companies.

The employer’s duty in this respect cannot be fulfilled by a mere ceremony of inspection, even though it be performed by competent inspectors, if it have knowledge of the fact that they are insufficient in number to perform their duties prop"erly. In this respect the employe is entitled to such immunity from danger, as would be secured to him by such actual inspection of the cars as is usually made by those engaged in operating railroads; subject, however, to the qualification that the company is not liable for the negligence of his fellow-servant.

The plaintiff below did not undertake to show that the company’s inspectors were incompetent, and she wholly failed to show that the system or mode of inspection was not approved by the general usage of railroad companies with respect to their freight trains.

The evidence offered by the company cle’arly shows that its inspectors were competent, and that its mode of inspection was that usually applied by railroad companies to their freight trains.

The claim made in support of the judgment below is, that admitting the competency of the inspectors and the propriety of the mode of inspection, the evidence shows that at . the company’s yard in the City of Columbus’, the number of inspector’s was wholly inadequate to the proper performance of their duties, and that inspections were in fact hurriedly and imperfectly made. The evidence tends very strongly to support this claim; and if it was competent for the jury to exercise their own judgment upon this subject, we cannot say that their conclusion is not supported by the evidence. For the standard by which the performance of the company’s duty in this respect is to be determined, we have but to refer to the rules already stated. The contract of employment was not made with reference to such care and diligence on the part of the employer, as a jury, exercising its own judgment, might deem due and reasonable. It was made with reference to such care and diligence on the part of the employer as is usual among those engaged in the operation of railroads. It was not the province of the jury upon the trial, nor is it ours upon a review of the evidence, to change the standard of performance. The question for the jury was, whether the employer had exercised the care and diligence which were usual among railroads in the inspection of freight trains. There was'no evidence whatever before the jury Avhich would support a negative answer to that question.

The evidence of the plaintiff below was confined to the mode of conducting inspections at the company’s yard in Columbus. For all that appears in the evidence offered by her, there may have been elsewhere such inspection as it was the employer’s duty to make.

The evidence offered by the defendant below shows that according to the rules of the company, this car was inspected at Nelsonville before leaving for Columbus on the day of the accident; that competent inspectors were stationed there, and that the company’s rules required them to inspect all' cars with care, and to permit only those that were road-worthy to leave the yard. ' No witness testifies that even .in his own judgment this last inspection was imperfect, or that the inspectors stationed there were not competent to properly perform the duties imposed upon then. Their competency in all respects being admitted, their negligence, if they were negligent, was that of fellow-servants,Ofor which the employer is not liable.

In view of these controverted facts, a previous negligént inspection of the car at Columbus, even if shown, could not properly be regarded as the immediate cause of the accident. Of however long standing the flaw in the wheel may have béen, it could not have diminished in size between the two inspections. If it defied detection upon the proper inspection which we must assume to have been made at Nelsonville upon the day of the accident, there is no warrant for the inference that it would have been detected by a like inspection upon an earlier day at Columbus.

J. A. Wilcox, for plaintiff.

L. J. Critchfield and Marriott & Hughes, for defendant.

We do not feel called upon to determine any question involing the credibility of witnesses or the weight of the evidence. A'majority are of the opinion that the verdict and judgment below resulted from a misapplication of thelaw to the evidence, and that in the substantial respects indicated, the plaintiff there failed to show a liability on the part of the employer.

Judgment reversed, with costs, and cause remanded.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Oct. Term, 1885.)
    Before Judges Cox, Smith and Swing.
    Hannah F. Forsha v. Joseph Longworth’s Ex’rs et al.
    F. being the owner of real estate on which his wife held, a judgment lien (they having separated), to-gether with his wife deeded said real estate to McC. At the time McC. leased back the real estate to F. with privilege of purchase at the end of the lease. Afterwards F. executed a mortgage on the property to trustees to secure former judgment to wife. McC. and F. subsequently deeded the property to L.

      Held, that as between L. and the wife of F., L. took the property free from equities between F. and wife ; that F’s possession was not notice to L. of title inconsistent with his deed to McC.; that the mortgage to wife by F. could only be notice of the title F. held, which was a leasehold.
   Swing, J.

Tbis cause comes here by appeal from the Hamilton county common pleas.

The plaintiff, in her petition, which was filed December 26, 1882, alleges that on November 13,1871, she was the wife of Samuel W. Forsha, and that she now is his widow, he having died in the year 1877; that on the 13th of November, 1871, Samuel W. Forsha was the owner in fee simple of a certain lot of land situated on the south side of Fifth, between Smith and Cutter streets.

The testimony relevant to the issues raised in this case shows, that on November 13,1871, the plaintiff was the wife of Forsha, although they had separated and a deed of separation had been recorded, and that previous to that time she had recovered a decree against him for alimony in the sum of $3,500, which Was a lien on Forsha’s real estate in Hamilton county; that at that time Forsha was the owner of a valuable lot on Fifth street in this city. On that day, Forsha and wife deeded in fee simple said lot to William McCammon, in consideration of $15,000. On the same day McCammon executed a lease to Forsha, for the same premises, for a period of five years, at an annual rental of $1,400, with the privilege of purchase within the last quarter at $15,000. On November 29th, 1871, Forsha executed a mortgage oh said lot to trustees for his wife, to secure said judgment for alimony. This mortgage is in the ordinary form of a mortgage. It conveys the property in fee simple, with covenants of warranty that he is the owner, and that the title is free, clear and unincumbered.

The testimony shows that there is no doubt but that Long-worth, when he purchased from McCammon and Forsha, acted in the matter in entire good faith, believing that McCammon held the fee and Forsha the leasehold; they told him that they owned these respective interests. And McCammon gave him his abstract of title showing his title a good one.

Longworth had no knowledge of the mortgage by Forsha to Mrs. Forsha’s trustees. He took deeds from McCammon and Forsha, paying McCammon $15,800, $800 being due McCammon on account of back rent, and Forsha $2,200 for his part with the privilege of purchase. Longworth then gave Forsha a perpetual lease on the property. This transaction was on the 22d day of March, 1875. At that time the lease of Forsha had one .year and eight months to run.

Now Longworth says, I am a bona fide purchaser for value without notice. If this is true, his defense is complete, for he holds the legal title — for when the equities are equal, the law will prevail.

As against McCammon, the decree in favor of Mrs. Forsha could not be asserted, whether the transaction between Forsha and wife and McCammon was a deed or a mortgage. Neither could it be asserted against McCammon’s grantee, or if a mort-. gage, his assignee — but on the face of the transaction, it is, without question, a deed in fee simple with covenants of warranty. If on the other hand Longworth had notice, either actual or constructive, his defense is not good against the claims of Mrs. Forsha, for, as between them, her equity would be superior, and if the transaction between Forsha and himself and McCammon was in fact a mortgage, she can set it up.

First, then, did Longworth have notice? He had no actual notice. Did he have constructive notice ? It is claimed by Mrs. Forsha that he-bad; that the deed to McCammon and lease to Forsha, with a covenant to deed back at the end of five years, was enough to notify him that it was in fact a mortgage. Manifestly this position is not maintainable; the declarations of the parties were that it was a deed'and lease, and the notice it gives to the world is that what it says is true. It is further claimed thát Forsha’s remaining in possession was notice of every claim that he had against the property.

As a general proposition, possession is notice of the possessor’s title, whatever it may be; but in the case of a vendor remaining in possession, his possession will not be notice that he holds any interest in the property inconsistent with the declarations contained in his deed — although (it would be as to all rights obtained subsequent to his deed. “ So far as the purchaser is concerned, the vendor’s deed is conclusive upon that subject; having declared by his conveyance that he makes no reservation, he is estopped from setting up any secret arrangement by which his grant is impaired; ” but the record discloses to Longworth that Forsha held possession by virtue of a lease from McCammon. This is a declaration on the part of Forsha as to how he holds his title, and the purchaser had a right to rely on the truthfulness of his statements. We think, therefore, that Forsha’s possession was not notice to Longworth.

But it is claimed further, that the mortgage given by Forsha to Mrs. Forsha, after they had deeded to McCammon, was notice to Longworth.

I can not see how a purchaser is chargeable in equity with constructive notice of anything which does not lie within the course of bis title. While a purchaser could not, as against the enforcement of a legal right, set up the fact that the right was outside of the course of his title, and that he had no notice of it, it would seem unreasonable to charge him with notice of an equity which was outside of the line of his title. In this case McCammon had the fee and Forsha the lease, and Longworth is chargeable with notice of any disposition that they may have made of the interests which they respectively held, McCammon of the fee and Forsha of the lease.

Longworth had no actual knowledge of the mortgage to Mrs. Forsha’s trustees; but even if he had, we are of the opinion that it is not notice of any right in Forsha and wife inconsistent with the declarations contained in their deed to McCammon. The reasons given why Forsha’s possession was not notice, are equally,applicable here; the mortgage is referable to his leasehold, and not - to a fee contradictory to their declarations.

•If we are correct in these conclusions, it follows that Long-worth was a bona fide purchaser for value without notice, and therefore, Mrs. Forsha can not, as against him, have this deed to McCammon declared a mortgage.

And having arrived at this conclusion, it is unnecessary for us to consider any other questions in this case, except the question as to what is the legal right of Mrs. Forsha against the property, or equitable right against Longworth.

As against Longworth, we have held that the only legal right she had against this property was granted by Forsha in his mortgage on the interest he had in the property, which was a leasehold; but she never asserted any right against this during the life of the lease'. It is long since expired, and she has no legal right- to be enforced either in a court of law or equity now. What equitable claim can she have against Longworth? It is claimed that even if her mortgage was a mortgage on the leasehold and not on the fee, that Longworth paid to Forsha $2,200 for the leasehold, and that that, should have gone to Mrs. Forsha. If in doing that he did not destroy her rights or get- that which was hers, I can not see how she would have any claim against Longworth. He had a right to pay Forsha any sum that he saw fit, and this would not prevent her from asserting her rights against the property; and against the assertion of her right, Longworth could not have set up what he paid Forsha as a defense. Certainly a mortgagee can have no claim against a purchaser from a mortgagor for money paid the mortgagor. The mortgagor has a right to sell subject to the rights of the mortgagee, and it matters nothing to the mortgagee whether the purchaser paj’s more or less than the value of the thing purchased. He has no personal right against the purchaser; his right is against the property and the mortgagor. So in this case, Mrs. Forsha had no right against Longworth; her right was against the property and against Forsha. Furthermore, if she had any right against Longworth, it was an equitable right. This right had accrued to her nearly seven years before .she .asserted it. No reason is given for this delay, and we think that the maxim of equity that delay defeats equity, should be applied here. Judgment will be entered in accordance with thé opinion.

J. IT. Olemmer and Mallon & Coffey, for Forsha.

Thomas McDougall, contra.


text:
    (Second Circuit — Clarke Co., O., Circuit Court
    October Term, 1885.)
    Before Williams, C. J., and Shauck and Stewart, J. J.
    Columbus & Xenia R’y Co., P., C. & St. L., and Little Miami R’y Co. v. The Ohio Southern R’y Co.
    1. A court of equity will not decree the specific performance of a contract whose terms are so vague and indefinite as to require evidence aliunde to determine the duty which such a decree would impose upon the defendant.
    2. Nor where, from the inequitable nature of the contract, and from the circumstances, it appears that the party against whom the decree is , sought did not enter into the contract understandingly.
    The circuit court, after stating the issue as made by the petition and answer and demurrer — a reply having been understood to have been filed to the answer, — and reading the contract between the plaintiffs and the S., J. & P. R. R. Co., which was the subject matter of the controversy, (which contract provided that the S., J. & P. R. R. Co. should forever erect and maintain at its own expense the crossing— target watchman’s house, required under section 3333, and pay all expenses of the watchman, and repairs of target-house, crossing, etc.), then read the agreed statement of facts, which was as follows:
    “ It is agreed between the parties to this action, for the purposes of this suit and the issues made therein, that the following statement is to be considered as true, to-wit:
    “ That the Springfield, Jackson & Pomeroy Railroad was located as a narrow-guage railroad between Springfield, in Clark county, Ohio, and Jackson, in Jackson county, Ohio, in 1877, and completed as such in the latter part of the year 1878; that on the-day of July, 1877, the Springfield, Jackson & Pomeroy R. R. Co., a body corporate, entered .into.an agreement with the plaintiffs, also bodies corporate, — a copy of which is hereunto annexed, and marked • Exhibit A,’ and made part hereof. That pursuant to said agreement, the Springfield, Jackson & Pomeroy R. R. Co. constructed its railroad track at .grade in said village of South'Charleston across the right-of-way and track of the plaintiffs at right angles, within distance from the regular stopping station of the plaintiffs, and 365 feet distant from its own stopping station. That there was no other consideration for .the use of the plaintiff’s right-of-way, being a strip of ground 100 feet in width, and its track, which is a standard guage, by the Springfield, Jackson & Pomeroy R. R. Co., than the conditions to be performed by it, as set forth in said agreement; and that there has been no performance of said conditions either, by the Springfield, Jackson & Pomeroy R. R. Co., or any of its successors, including the defendant. That said agreement was never recorded. That the said Springfield, Jackson & Pomeroy R. R. Co. acquired no other right to the use of said strip of ground from any other source than as shown by said agreement. That on the 1-day of--, 1879, the common pleas court appointed a receiver of said narrow-guage road at the instance of the trustees for the bondholders thereof, and who continued to operate skid road under the order of the court until the-day of November, when said road, its franchises, rights, privileges, real estate, rights-of-way, the super-structure thereon, and all other appurtenances thereunto belonging, were sold at judicial sale at the door of the court house in Springfield, Ohio, to Samuel Thomas for $450,000 ; but that the'plaintiffs were not parties to said action. The on the 3d day of November, 1879, Samuel Thomas conveyed same to Oliver S. Kelly, who, on the 15th day of December, 1879, conveyed the same to the Springfield Southern R. R. Co. for a consideration of $1,000,000, a body corporate, and which, by a decree of said court of common pleas, on the-day of--, changed its name to that of the Ohio Southern R. R. Co., and which is the defendant in this action. That from the date of the completion of said narrow-guage road, it has been in continuous operation, running from eight to twelve trains daily over the same, and that ever since the execution of the agreement the Pittsburgh, Cincinnati & St. Louis R. R. Co., then and now operating the said Columbus & Xenia R. R. under lease, has run on its railroad over said crossing daily twenty regular trains and a large number of extra and special trains. That in the month of November, 1879, the track of said railroad was widened to that of a standard guage road. That from the time of the completion of said narrow-guage road until the present time there has been at said crossing neither a target, nor a watchman, nor a watchman’s house, nor any other structures, fixtures or equipments. That after the defendant became the owner of said road, and about the-day of February, 1884, its attention was called to said agreement, and on the-day of March, 1884, it refused to recognize said agreement as obligatory upon it, but has always been and is ready and willing to join with the plaintiffs in the erection and maintenance of a target, watchman’s house, watchman, etc., at the joint expense of the companies owning or operating said several roads. That the cost of constructing and erecting a target and watchman’s house would be for the former $225, and for the latter $110, — a blue print showing the character and dimensions of which is hereunto attached and marked 1 Exhibit B.’ And the annual cost of maintaining said crossing would be from $650 to $1,000. (This statement as to the annual cost of maintaining'said crossing is agreed upon, subject to the right of the plaintiff’s to object to it as being irrelevant and incompetent.) It is further agreed that said defendant, The Ohio Southern R. R. Co., had no actual notice of the existence of said agreement ‘ Exhibit A,’ prior to the J-day of February, 1884.”
   Shauck, J.

This case is fruitful of questions. We do not deem it necessary to pass upon all that have been suggested by counsel. There are many of these questions, with respect to which we are inclined to views which we ought to regard rather as impressions, than conclusions reached in the case. It is first claimed on behalf of the defendant, that the contract which I have just read is void, as being against the public policy of the state, as that policy is defined in section 3838 of the statutes, which provides that in a case of this character, when two railroads cross each other at a common grade, crossings shall be made and kept in repair, and watchmen maintained thereat, at the joint expense of the companies owning the tracks, — and it further provides with respect to the management of the crossing, the approach of trains, etc. In support of the contract in this respect, it is claimed that the parties here have not undertaken to abate the precautions against accidents which, from public considerations, the statute provides for; that the contract contemplates the full compliance with the provisions of the statute as to the employment of a watchman, in which it is admitted the public are interested; but that it seeks only to charge upon one company the payment of t'he expense, and in that payment, it is said, the public are not interested. The statute enjoins this as an immediate duty upon both roads. In the prompt performance of that duty the public confessedly have an interest. Whether a court of equity, after the parties have failed for eight years to perform this plain duty thus solemnly imposed upon them by the statute, ought to hear the plaintiff assert that the duty was by the contract wholly shifted to the defendant, is a question which we shall not undertake to answer unless the answer is suggested by the question itself. It is further claimed by the defendant* that in this contract the senior company untertook to negotiate with the junior company with the reference only to what it already had by law, and which it did not itself possess, and that there is, therefore, a failure of consideration. The provisions of the contract in this respect, as in many others, are vague and uncertain. The grant is in these words, “ That said party of the second part shall have right to construct and use its railroad as now located across the railroad and right-of-way of the party of the first part.” The right thus granted, if the instrument be strictly construed, according to the decision of the supreme court in Railway v. Railway, 30 Ohio St., 615, passed from the state to the junior road by the grant of its charter. The proper determination of this case is the only duty enjoined upon us, and it is not necessary for us to determine whether for all purpCses the language of this contract ought to be construed into a grant of the right-of-way. But we are not persuaded that the plaintiffs are entitled to such liberality of construction when they seek affirmative relief with respect to this contract. We are all agreed that an obvious ground for the determination of this case is found in the continuing personal nature of some of the stipulations of this contract,, and in the vague and indefinite character of others. The first and second of these conditions are that the junior road shall construct and put in at is own proper expense, said crossing, and also at its own proper expense construct the target, without specification as to the character of the target, watchman’s house, or the other structures, fixtures, and equipments, without any designation of the character of the improvements that are named here, and without any designation as to what other improvements may by the parties to this contract be deemed necessary, and the same to be done to the perfect satisfaction of the party operating said Columbus & Xenia R. R. and in all respects suitable and proper for the place. And also to keep and maintain at its own expense such crossing, and all structures and fixtures appertaining thereto, in good repair and condition, and in a manner satisfactory to the party operating the said Columbus & Xenia R. R. And also at his own expense to make additions and improvements such as the business of the parties may require; and, still further, to keep a watchman, who shall be satisfactory to the corporation operating the Columbus &- Xenia R. R. and to remove upon its request any watchman and to furnish another suitable perrson in his stead.

Now in the light of the stipulations of this contract, a decision of the supreme court in 13th Ohio St., in the case of the Port Clinton R. R. Co. v. Columbus & Toledo R. R. Co., it seems to us is conclusive of the rights of the parties with respect to the relief here prayed for. This also was a suit for specific performance, and in passing upon it the court have collected some authorities which I find it more convenient to read than to collect them otherwise. (The court here read from vol. 13 Ohio State Reports, page 549 and page 551.) Applying these rules to the case in hand; we have no authority to determine what would be a proper target or. a proper watchman’s house, or what other fixtures are necessary or their character. If we should decree their construction according to the diagrams submitted, we should plainly add to the stipulations of the parties in this case, as they have not contracted with reference to them.. And if we should decree specific performance without some definite instruction, we could never determine, except by evidence aliunde, whether the decree had been obeyed. Specific performance cannot be decreed because the contract does not itself furnish a standard by which performance is to be determined.

Another equally safe ground of decision is found in the unconsionable character of this contract. While we have sought to abstain from the expression of an opinion as to whether anything passes, to the junior company by this agreement, it is determined by the supreme court in the 30 Ohio State, that the senior company had nothing to give except what, according to that case, was found to be worth only $60, and what in this case would certainly be worth but little, if any more. We are asked to decree, as compensation for this, the payment and expenditure of the one-half of from $1,200. to $1,500. in the first year, and thereafter of the one-half of from $650. to $1,000. annually during the joint use of the crossing. We are not advised of any other case in which a court has been asked to decree the specific performance of so unjust and inequitable a contract. Cases much less striking in this respect have elicited from courts of equity such expressions as “Equity will not decree a specific performance if there is inequality or hardship in the contract,” or “ where there is reason to doubt whether the defendant entered into the contract understandingiy; ” equity will not promote injustice; ” “ equity will not decree a specific performance of hard and unconscionable bargains,” and many other forms of expression used to convey the prevailing rule that equity will interfere only for the promotion of equity. While the delay of the plaintiff to sue for the specific performance of this contract might not of itself be sufficient reason for refusing the relief, it is a considerable circumstance under the rule as stated by Story, that if a party applies for relief of this character after a long lapse of time, unexplained by equitable circumstances, his bill will be dismissed.” ■ In this case there is no explanation whatever for the delay, and in the-m eantime the defendant acquired its rights in the junior road for a valuable consideration, and without notice of the rights now claimed by the plaintiffs. With respect to specific performance as to other branches of equitable jurisdiction, the rule is that equity will not interfere where legal remedies are adequate. The petition in this case is defective, because it fails to show any necessity for the exercise of such jurisdiction. What the legal remedy might be, we need not determine; if it should be found to be compensation for the value of the right-of-way as in proceedings to appropriate, as held by the supreme court in 43 Ohio State, it would be exactly adjusted to the plaintiff’s right. There are other reasons' why the relief prayed for should be denied, but those stated are sufficient. The petition will, be dismissed and defendant will have judgment for costs,

Charles Darlington, for plaintiffs.

Oscar T. Martin, for defendant.