author: WILDMAN, J.

text:
    EVIDENCE — INTOXICATING LIQUORS.
    [Fulton (6th) Circuit Court,
    November 11, 1911.]
    Wildman, Kinkade and Richards, JJ.

      Benjamin E. Hinz v. State of Ohio.
    Conviction for Soliciting Orders for Intoxicating Liquors not Set Aside on Review if Inference of Guilt not Rebutted by Accused.
    The inference may reasonably be drawn that the manager or person in charge of an office, from which emanate letters or circulars soliciting trade, has knowledge of such solicitation . and is responsible therefor; and where such an inference as to the solicitation by mail in “dry” territory of orders for intoxicating liquors was not modified or rebutted by evidence, and the defendant remained silent when confronted by evidence of that character, a reviewing court is not justified in holding that a finding of guilty by the court below was so clearly against the weight of the evidence as to require a reversal of the judgment.
    [Syllabus by the court.]
    Error to common pleas court.

      Ben W. Johnson, for plaintiff in error:
    Failure of proof, Uayner v. State, 83 Ohio St. 178 [93 N. E. Rep. 900] ; Moore v. State, 2 Ohio St. 500.
    Errors and irregularities, Tate v. State, 76 Ohio St. 537 [81 N. E. Rep. 973; 10 Ann. Cas. 949]; Methard v. State, 19
      Ohio St. 363; Kappe-s v. State, 26 O. C. O. Ill (5 N. S. 183) ; Fike v. State, 25 O. C. C. 554 (4 N. S. 81); Carey v. State, 70 Ohio St. 121 [70 N. E. Rep. 955] ; Beaker v. State, 18 Dec. 44 (5 N. S. 364); Garrison v. State, 17 Dec. 159 (4 N. S. 277); Volk v. Westerville, 17 Dec. 776 (3 N. S. 241); Ford v. Osborn-e, 45 Ohio St. 1 [12 N. E. Rep. 451; 4 Am. St. Rep. 507] ; Olinger v. McGuffey, 55 Ohio St. 661; Shutters v. Toledo, 57 Ohio St. 667; Stewart v. Gordon, 60 Ohio St. 170 [53 N. E. Rep. 797] ; Toledo F. & F. By. v. Bailway, 79 Ohio St. 136 [86 N. E. Rep. 515]; Potter v. Potter,,27 Ohio St. 84; Farrer v. State, 2<irOhio Ohio St. 54.
    Insufficiency of affidavit, Fouts v. State, 8 Ohio St. 98; Hagan v. State, 10 Ohio St. 459; Greene, In re, 7 O. P. D. 345 [52 Fed. Rep. 104]; Groenland v. State, 6 Dec. 313 (4 N. P. 122), affirmed, no op., State v. Groenland, 57 Ohio St. 653; Aylmore v. State, 11 Dec. Re. 900 (30 Bull. 376); 2 Woollen and Thornton, Int. Liq. Secs. 860, 861; Hayner v. State, 83 Ohio St. 178 [93 N. E. Rep. 900] ; Lake Shore & M. S. By. v. Reynolds, 11 Circ. Dec. 701 (21 R. 403); Adams v. Stdte, 25 Ohio St. 584; Newport <& C. Bridge Co. v. Jutte, 27 O. C. C. 541 (6 N. S. 189); Uihlein v. Gladieux, 74 Ohio St. 232 [78 N. E. Rep. 363] ; Anderson v. State, 22 Ohio St. 307.
    Accused not guilty even as aider and abetter, State v. Munson, 25 Ohio St. 383; Hartshorn v. State, 29 Ohio St. 636.
    Mere knowledge and consent not sufficient, State v. Tally, 102 Ala. 125 [15 So. Rep. 722] ; State v. Jones, 115 la. 113 [88 N. W. Rep. 196]: United States v. Gooding, 25 V. S. (12 Wall.) 460 [6 L. Ed. 693] ; Omer v. Commonwealth, 95 Ky. 353 [25 S. W. Rep. 594] ; Warden v. State, 24 Ohio St. 146; Baker v. State, 12 Ohio St. 214; State v. Munson, 25 Ohio St. 383; State v. Snell, 5 Dec. 670 (2 N. P. 55) ; Watha v. State, 34 O. C. C. 60; Connatighty v. State, 1 Wis. 159 [60 Am. Dee. 370]; Spear v. Hiles, 67 Wis. 361 [30 N. W. Rep. 511] ; State v. Douglas, 44 Kan. 618 [26 Pac. Rep. 476] ; White v. People, 81 111. 333; Drury v. Territory, 9 Old. 398 [60 Pac. Rep. 101] ; Jones v. People, 166 111. 264 [46 N. E. Rep. 723] ; True v. Com

      monwealth, 90 Ky. 651 [14 S. W. Rep. 684}; Clem- v. State, 33 Ind. 418; Plummer v. Commonwealth, 64 Ky. (1 Bush) 76.
    Evidence of guilty participation, Parker v. State, 4 Ohio St. 563; State v. Fuller, 32 O. C. C. 465 (13 N. S. 405); Schultz v. State, 32 Ohio St. 277; State v. Berry, 32 O. C. O. 250 (13 N. S. 206).
    Arbitrary disregard of undisputed testimony, Sexton v. Todd, Wri. 316.
    No judicial notice of local option elections, Geisse v. State, 32 O. C. C. 560 (13 N. S. 385) ; Combs v. State, 81 Ga. 780 [8 S. E. Rep. 318] ; Jones v. State, 67 Md. 256 [10 Atl. Rep. 216] ; Puckett v. State, 71 Miss. 192 [14 So. Rep. 452] ; Crigler v. Commonwealth, 120 Ky. 512 [87 S. W. Rep. 276]; Wilson v. State, 35 Ark. 414; People v. Adams, 95 Mich. 541 [55 N. W. Rep. 461] ; People v. Bates, 61 App. Div. 559 [71 N. Y. Supp. 323] ; Slate v. Chambers, 93 N. G. 600; State v. Searcy, 111 Mo. 236 [20 S. W. Rep. 186] ; Long v. State, 165 Ala. 101 [51 So. Rep. 636]; Randall v. Tillis, 43 Fla. 43 [29 So. Rep. 540] ; Stale v. Van Vliet, 92 la. 476 [61 N. W. Rep. 241] ; Gay v. Eugene, 53 Ore. 289 [100 Pac. Rep. 306] ; Brown v. State, 11 Ohio 276; Pittsburgh, C. & St. L. Iiy. v. Moore, 33 Ohio St. 384 [31 Am. Rep. 543]; •Urmsion v. State, 73 Ind. 175; Herr, mann v. Cincinnati, 6 Gire. Dec. 151 (9 R. 357); affirmed, no op., Herrmann v. Cincinnati, 52 Ohio St. 676; Bolton v. Cleveland, 35 Ohio St. 319; Massa v. Stale, 2 Circ. Dee. 6 (3 R. 9) ; Nelson v. Berea, 12 Circ. Dec. 329 (21 R. 781); affirmed, no op., Nelson v. Berea, 66 Ohio St. 668; Toledo v. Libbie, 8 Circ. Dec. 589 (19 R. 704), affirmed, no op., Toledo v. Libbie, 51 Ohio St. 562.

      Chittenden v. Columbus, 26 O. O. C. 531 (5 N. S. 84), affirmed, no op., Chittenden v. Columbus, 71 Ohio St. 516; Smith y. Lothschultz, 20 Dee. 390 (10 N. S. 257); Joyce, Int. Liq. Sec. 418; 2 Woollen & Thornton, Int. Liq. Secs. 860, 861; Stick v. State, 13-23 O. C. C. 392 (3 N. S. 611).
    The Ilayner case not an authority to sustain the present affidavit, Ilayner v. State, 83 Ohio St. 178 [93 N. E. Rep. 900] ; State v. Messenger, 63 Ohio St. 398 [59 N. E. Rep. 105] ; State-
      v. Smiley, 8 Circ. Dee. 117 (14 E. 660); State v. Pugh, 43 Ohio St. 98 [1 N. E. Eep. 439].

      J. B. Templeton, Pros. Atty., and J. A. White, for defendant in error:
    Mail orders from dry counties, Hayner v.. State, 83 Ohio St. 178 [93 N. E. Eep. 900]; State v. Mattingly, 79 Ohio St. 79 [86 N. E. Eep. 353] ; Lynch v. State, 31 O. G. C. 352 (12 N. S. 330); State v. Hinkelman, 32 O: C. C. 1 (13 N. S. 321); Stale v. Berry, 32 O: C. O. 250 (13 N. S. 206) ; Weamr v. State, 74 Ohio St. 53 [77 N. E. Eep. 273]; Geisse v. State, 32 O. G. G. 560 (13 N. S. 385); McKelvey, Evidence 330; State v. MulUn, 78 Ohio St. 358 [85 N. E. Eep. 556] ; Delamater v. Dakota, 205 U. S. 93 [51 L. Ed. 724] ; Dailey, v. State, 4 Ohio St. 57; Eldredge v. State, 37 Ohio St. 191; State v. Bailey, 50 Ohio St. 636 [36 N. E. Eep. 233] ; Carey v. State, 70 Ohio St. 121 [70 N. E. Eep. 955] ; Schultz v. State, 32 Ohio St. 276; State v. Fuller, 32 O. C. C. 465 (13 N. S.- 405); Scheu v. State, 83 Ohio St. 146 [93 N. E. Eep. 969] ; State v. Walder, 83 Ohio St. 68 [93 N. E. Eep. 531]; Carmack v. State, 32 O. C. C. 46 (13 N. S. 362).
    Disturbing of verdict, Dean v. King, 22 Ohio St. 118; McGatrick v. Wason, 4 Ohio St. 566; French v. Millard, 2 Ohio St. 53; Muhlenberg v. Florence, 5 Ohio 245; Lewis v. Bank, 12 Ohio 151 [40 Am. Dec. 469] ; Stewart v. State,' 1 O. S. 66; Tate'Y. Stale, 76 Ohio St. 537 [81 N. É. Eep. 973; 10 Ann. Gas. 949]; Hess v. Stale, 5 Ohio 5 [22 Am. Dec. 767] ; Simon V. Mooney, 12 Circ. Dec. 73- (22 E. 271); Price v. Coblitz, 12 Circ. Dec. 34 (21 E. 732) ; Lake Shore <& M. S. By. v. Goodwin, 12 Circ. Dec. 537; Gebaur v. Vesper, 10 Circ. Dec. 820 (20 E. 711); Andreivs v. Watson, 12 Circ. Dec. 692; Blaney v. State, 9 Gire. Dec. 616 (17 E. 486) ; Breese v. State, 12 Ohio St. 146 [80 Am. Dec. 340] ; Neifeld v. State, 13-23 O. C. C. 246 (3 N. S. 551); Evans v. State, 13-23 O. C. C. 103 (3 N. S. 23), affirmed, no op., Evans v. State, 68 Ohio St. 700; Baum v. State, 27 O. G. C. 569 (6 N, S. 515).

      Afiirmed, no op., Hinz v. State, 86 O. S. 348.

   WILDMAN, J.

The plaintiff in error, Benjamin E. Hinz, was convicted before George B. ITeise, mayor of the village of Wauseon in this county, after a trial before him, of soliciting orders for the sale of intoxicating liquors within said county by means of a communication sent by mail by the said Benjamin E. Hinz from Toledo, Ohio, to one J. C. Paxson, the complaining witness, on or about March-29, 1911, the sale of intoxicating liquors as a beverage being at th'at time prohibited and unlawful in said county. The prosecution and conviction were under Gen. Code 13223 of Ohio. Said conviction and the sentence of said mayor thereon were affirmed by the court of common pleas in -proceedings in error instituted therein. To reverse the judgment of affirmance this proceeding is pending before us.

Numerous questions were raised in the trial court by the defendant there, and'exceptions taken to rulings, but the ^contentions of vital importance and the ones calling for most careful and serious consideration by us are those relating to the guilt or innocence of the defendant of the matters involved in the accusation against him. There seems no question under the evidence submitted to the trial court that the section referred to had been violated by the distribution of printed matter in the village of Wauseon while the sale of intoxicating liquors as a beverage was unlawful; but that the defendant was implicated in such soliciting, either directly or indirectly, is disputed, and upon the issue so raised evidence was offered in the trial court by both state and defendant. It is earnestly urged by the plaintiff in error that the finding by the mayor is so clearly against the weight of the evidence that it should not stand.

The evidence is largely circumstantial. The testimony of Mr. Paxson discloses the receipt by him from the post office at Wauseon of a printed circular letter, over the printed signature of the Schlitz Brewing Company, soliciting orders for beer manufactured or furnished by said company. By instruction in this letter, orders, if given, were to -be sent to a street address in the city of Toledo, nt which address, as the testimony discloses, was an office of said brewing company, occupied and conducted by said Hinz as the manager thereof or local agent of said company, there being no evidence indicating that said company had any other office or place of business in said city of Toledo. The communication so received, by Mr. Paxson enclosed, a price list of beer manufactured by said company, and order blank directed to said company at its said office in Toledo, from which address any orders were to be filled. The envelope containing this communication bore the Toledo postmark. Soon after the defendant’s arrest and while in charge of the sheriff, Fred Grandy, of Fulton county, he volunteered certain statements to Grandy, as testified to on the trial by the latter, with, reference to the soliciting of business in so-called dry territory. I will not attempt to detail the language said to have been used by him, but in substance he stated, as asserted by Grandy, that be had refused personally to solicit business in sporting houses or territory where the sale of liquor was prohibited or to send men into such territory or to such places, but that he had consented to the sending to some persons, whose names he does not appear to have disclosed, of ' solicitations for business' in dry territory. Other evidence was offered upon both sides, but I .will not attempt its review.

In view of all the facts disclosed, whatever might be our conclusions as 'to the guilt or innocence of the defendant, were we sitting as a trial court, we do feel justified in holding that the finding of the mayor is so clearly against the evidence or its weight as to justify a reversal. As a general inference, reasonably to be drawn from our observation of the conduct of business, we think it may fairly be said that the manager or person in charge of an office through which passes or from which emanates letters or circulars soliciting trade, has knowledge of such solicitation and is responsible therefor. This inference is, of course, open to qualification os. rebuttal by evidence, but in the absence of evidence which the trial court was bound to believe a finding in accordance with such principle would be justified under the facts in this case. "While there was evidence offered by the defendant in a deposition of one Abrams, a manager of agencies for the brewing company, it contained so many reservations of facts, the witness declining to answer upon the ground as given that the answer Fight tend to criminate himself, and the statements were in other respects, many of them, .so vague and general, that we cannot say that the trial court was not justified in disbelieving the testimony of said witness and rejecting it from consideration. Iiinz himself attempted no other or further explanation of the matter involved in the charge against him than as I have already stated. While no presumption can be drawn against him from the fact that he did not testify upon the witness stand while on trial, the fullest .opportunity was apparently afforded him to enter into any desired explanation or detail as to the matter of accusation against him when in the conversation with the sheriff. In view ■of this fact we see no reason why the ordinary principle should not apply, that inferences may be legitimately drawn against ■one from his silence or unreasonable or inadequate statements when called upon, by circumstances or questions, to explain his conduct. A like inference is properly drawn from the refusal or neglect to produce in court evidence available to one in his defense.

A not inapt illustration of this general principle is found in the rule asserted in Mothard v. State, 19 Ohio St. 363, and repeatedly announced in other adjudications in this and other states, that an inference of guilt may be drawn from the unexplained possession of stolen goods soon after the commission of the larceny. Such a presumption or inference is, of course, not indisputable, but one which may fairly be applied under proper circumstances in the absence of adequate rebutting or explanatory evidence.

As to the various other matters urged by counsel for plaintiff in error as ground for reversal, we deem it sufficient to say that we find no errors in the record justifying the setting .aside of the evidence of the trial court and the reversal of the ¡sentence. The judgments of the mayor and the common pleas ..court are affirmed.

Kinkade and Richards, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    RAILROADS.
    [Lucas (6th) Circuit Court,
    November 9, 1907.]
    Hayues, Parker and Wildman, JJ.

      Wheeling & Lake Erie Ry. v. Toledo Railway & Terminal Co.
    1. Railroad Not Required to Avoid Grade Crossings Unless Reasonable and Practicable.
    While one of the purposes of the grade crossings act, 97 O. L. 648 (Gen. Code 8834 et seq.), is to conserve the public safety, railway companies will not be required to avoid such crossings unless it is reasonable and practicable so to do.
    2. Preventive Application of Grade Crossings Statute not Required if Interlocking Device Successfully Used for Several Years Reasonably Operates.
    An interlocking device having been in use at a grade crossing for a considerable period, with favorable results from its operation and comparatively little interruption to the trains of either road, and to avoid the grade crossing would involve heavy expenses and other hardships to the railway companies, a case is not presented requiring the preventive application of the statute.
    [Syllabus approved by the court.]

      Seiders & Duncan, for plaintiff.

      King & Tracy, for defendant.

       Affirmed, no op., Wheeling & Lake Erie Ry. v. Railway & Term. Co. 81 O. S. 540, 550.

   WILDMAN, J.

For an understanding of the issues before us on the present hearing and the facts involved,' recourse may be had to the recitals in the hearing of the same case before the Supreme Court of Ohio as reported in Wheeling & Lake Erie Ry. v. Railway & Term. Co. 72 Ohio St. 368, 369 [74 N. E. Rep. 209], on a proceeding in error to reverse the former judgment in this court. The case was treated by the Supreme Court as involving an application for the ascertainment of a mode of crossing the Wheeling & Lake Erie Railroad Company track by the Terminal Company and was remanded to this court for the purpose of such ascertainment. The crossing of the plaintiff’s tracks not having been enjoined, the Terminal Company proceeded with its construction across the plaintiff’s roadway and has been in continuous operation of its line at that point for about four years. The issues, so far as concern our present inquiry, are based upon the original act as to grade crossings, 95 O. L. 530 (Gen. Code 8834), which was passed and took effect May 10, 1902.

The amendatory act of May 3, 1904, 97 O. L. 548, is prevented by R. S. 79 (Gen. Code 26) from affecting a pending proceeding, but it may have use as indicative of the tendency of the legislature to protect the future interests of any younger company -in two important respects: first, by providing that no grade is to be required to exceed the established maximum or ruling grade of such company; and, second, that the initial expense of construction and the expense of maintenance are to be equitably apportioned between the companies.

It is doubtful whether under the original act which governs the present case, the court would have power to impose any part of such expense on the older company. Such was the view of the supreme court of Pennsylvania in Chester Trac. Co. v. Railway, 188 Pa. St. 105, 114 [41 Atl. Rep. 449], in which it was said: “The courts have no power * # * equitably to apportion the expenses among those interested.” The provision as to not exceeding the ruling grade, however, indicates that in 1904 the legislature deemed it not so imperatively necessary to avoid a grade crossing as to justify imposing a burden on the crossing company which would destroy the effectual operation of its road; in other words, that so to require would not be reasonably within the contemplation of the law when applied to the junior road. Both the original and amendatory statutes provide that: “If in the judgment of such court or the judge thereof it is reasonably practicable to avoid a grade crossing, it shall by process prevent a crossing at grade.” It is argued by counsel for the plaintiff that the term “reasonable and practicable” as embodied in our Ohio statutes, is synonymous with the term “reasonably practicable,” as found in the Pennsylvania statute. It is said that the Ohio legislators have" adopted the legislation of the older state and that the phraseology of the Pennsylvania statute had received interpretation by the courts, of that state which was presumably adopted with the enactment of our statute.

Before considering this contention, but assuming the general correctness of the principle claimed, which is recognized by the courts of Ohio in numerous cases, let us examine the phrase as used in the Ohio statute, comparing it with the one of Pennsylvania, in an effort to ascertain whether or not they are equivalent. The word “practicable” in either state may properly be defined as “feasible” or, in other words, “possible of accomplishment.” The word “reasonable” as we find it in the Ohio statute has been treated as substantially synonymous with the word “fair” in Jones v. Angell, 95 Ind. 376, 382; with “impartial,” in Thompson v. Rubber Co. 56 Conn. 493, 498 [16 Atl. Rep. 554] ; with “just,” Opinion of the Justice, 4 N. H. 565; and by Webster with the words “just,” “honest,” “equitable” and “fair.” Substitute any one of these alternative words for “reasonable” in our statute, and we have a phrase signifying that a grade crossing will not be prevented unless it can be justly, honestly, equitably or fairly done, having due regard to the rights and interests' of both parties.

To the extent that the senior company has improved its right of way by its structures and expended its money, the companies do not stand on an equal footing; and the statute, both in its original form and as amended, wisely attempts to protect as far as possible the rights acquired by such use. It might be unavoidable for a crossing company to- injure or destroy property in crossing, and under the principle enunciated in Lake Shore & M. S. Ry. v. Railway, 30 Ohio St. 604, 605, even this would be permissible if demanded by the public welfare. The statute under which we. are proceeding does not prohibit injury to property rights of the occupying company, but requires that in crossing,' the least practical (that is, substantial) injury shall be inflicted. The implication is irresistible that some injury may be unavoidable if the junior company is permitted to cross at all. Therefore, if none other than a grade crossing is reasonable, that is to say, just, fair and equitable to both parties, the court will permit such mode of crossing, although it might be practicable, so far as mechanical conditions are concerned, to cross in some other way. For whatever injury to property is sustained by the older company, just compensation should be awarded in any proceeding to appropriate a right of way across its line. But it is not the policy pf the law, while seeking to protect the just rights of the companies and protect property and persons from unnecessary injury, to place insurmountable obstacles in the way of improved means of conveyance or transportation. It is the benefit which flows to the public from such better transportation which justifies the exercise of the right of eminent domain in behalf of private corporations.

It is unquestionably the policy of our state, as indicated by the legislation of which the acts already referred to form a part, to protect lives and property as far as it can practically and reasonably be done, and without prohibitive interference with lawful and beneficent enterprises, by preventing crossings at grade. With the qualifications stated, the requirement of the statute is mandatory. It is urged in behalf of the .■ plaintiff company that, in view of the construction placed upon the prior enactment of the state of Pennsylvania by the courts of that state, the phrase “reasonable and practicable” embodied in the Ohio law will not bear the interpretation which I have given to it. We are not informed, other than by the general similarity of phraseology and the fact that the Pennsylvania statute was enacted many years before that of Ohio, that the one is a copy of the other; but, assuming it to be so — and it is highly probable that the claim of counsel in that respect is correct — we think that the very fact that the copy departs from thq original in the respect to which reference has been made, is a fact of importance as suggesting the intention of our legislature. If the framers of our statute had before them that oí Pennsylvania, it is manifest that either by inadvertence or designedly, the term “reasonably practicable” was not adopted.. In the Pennsylvania statute the word “practicable” is qualified by the adverb “reasonably”; not so in the Ohio enactment, but two qualifications are made to the direction to the court to prevent a grade crossing, by its process; the one is, when it is not practicable to avoid such crossing, and the other, when it is not reasonable.

It is not an unfamiliar principle of statutory construction, and one which appeals to our common intelligence, that where one act is copied or amended with any material change of phraseology, the inference is to be drawn that the change was intended. The case of Bloom v. Richards, 2 Ohio St. 387, 388. 402, is an instance. Judge Thurman in that case used these words: “It is a general presumption that every word in a statute was inserted for some purpose”; and again, “When a considerable change is made in the phraseology of a former law, the inference is reasonable that a change of meaning was also intended. ’ ’

Referring again to this argument of counsel for plaintiff, that the adoption of the Pennsylvania statute carries with it the construction placed upon that statute by the Pennsylvania court, we are cited to a long line of eases, beginning with Pittsburgh & C. Ry. v. Railway, 77 Pa. St. 173, 184, and including Baltimore & O. Ry. v. Railway, 207 Pa. St. 406 [56 Atl. Rep. 959]. Two of the cases cited, Smithport Ry. v. Railway, 203 Pa. St. 176 [52 Atl. Rep. 88], and Baltimore & O. Ry. v. Railway, supra, were decided by the supreme court of Pennsylvania after the enactment of our statute, and, manifestly, cannot have •been adopted by our legislatilre. It is, however, clear that the tendency of the Pennsylvania court from its. first expression in application of the statute of that state to the present time, has been to enforce more and more strictly the mandatory requirements of the statute. In the earliest of the cases cited it was said, in substance, that it was the policy' of the law to discourage grade ¡crossings; in Perry Co. Ry. Extension Co. v. Railway, 150 Pa. St. 193, 194 [24 Atl. Rep. 709], that courts should prevent such crossings, except in case of manifest, imperative necessity; in Pittsburg & L. E. Ry. v. Lawrence, 198 Pa. St. 1 [47 Atl. Rep. 955], that they should do so except in cases of “unavoidable necessity”; but whatever may have been the construction placed upon the act from time to time, it was always based upon the phraseology peculiar to the Pennsylvania statute and adopted only in part by our own. •

Another use has been made of this argument by counsel for the plaintiff, 'to wit, that by following the Pennsylvania legislation in our statute under consideration, the principles enunciated in Lake Shore & M. S. Ry. v. Railway, supra, have been abandoned. It is said, and correctly, that the act as to crossings does not leave the two companies on an equality as to. rights; that the senior road is preferred to the junior; but we think that this is so only in the manner and to the extent already stated. The easement first acquired by the plaintiff is as much a qualified title as it was before the act of 1902.

The importance of this fact is apparent when we consider the emphasis placed by counsel for plaintiff in error upon their claim that at the time when the Terminal Company instituted its proceedings for the appropriation of a right to cross, the plaintiff had in contemplation certain plans of development and use of its property which will be substantially destroyed by permitting a grade crossing. It is claimed that this may not legally be done, and some reliance is placed upon the Pennsylvania decisions, including Smithport Ry. v. Railway, supra. A reference to that decision discloses the fact that it was argued in the Supreme Court on May 5, 1902, five, days before the enactment of the Ohio law, but the decision of the court as announced in the opinion of one of its judges on page 182, bears date May 19, 1902, nine days after the passage of the Ohio statute. The case may be useful as a precedent but it is not authoritative and would not be followed in any conflict with the principles established in our own court. We are not clear that it is necessarily so in conflict. It is to be read in connection with the other cases decided by that court and in construction of the Pennsylvania statute.

The evidence submitted to us on the trial of this ease has impressed us with the view that inquiries of this character might more 'wisely be left to the determination of a body of expert engineers, as has been done in some of the states. The ease is one of great importance and of great difficulty. It has become manifest that either to permit or to prevent a crossing at grade will be attended with much inconvenience and financial loss to one or the other of these companies. We may, however, form, some idea as to the extent of such inconvenience and loss to the plaintiff company by a crossing at grade from the fact that such a crossing has now been maintained for a period of about four years. In obedience to another Ohio statute, an interlocking device has been established and maintained with the result that up to the present time no collisions have occurred between trains of the two companies. A witness whose duty calls him to continuous observation of the passage of engines and trains at the point of crossing, testifies that there has been but very slight interference with the movements of such engines and trains of the plaintiff company; that ordinarily m the operation of the interlocker the tracks of the plaintiff company are kept free for the passage of its trains. That there has been some inconvenience and delay, there can be no doubt, but has it been of such a character and extent as to justify the imposing upon the defendant company the burden of an overhead crossing? It is conceded that the crossing must be either at grade or above. The ruling or maximum grade of the defendant company is sixty-five hundredths of one per cent, and while ' the amendatory statute of 1904 cannot be applicable to the present proceedings as a governing factor, they may suggest what in the judgment of the legislature might be a reasonable requirement in a crossing company under the original law. To construct ,an overhead crossing at the grade mentioned would entail an expense, as claimed by the defendant company, of upwards of $240,000. The estimate of experts called by the plaintiff is considerably lower, but the precise amount is not important; it suffices that, upon either estimate, the expense would be very great. The defendant contends that a crossing -at any higher grade would not only be unreasonable, in view of other difficulties to be encountered, but would be impracticable. Experts for tbe plaintiff have suggested a construction of a one and one-half per cent grade at an estimated cost of $76,000 and no cheaper plan has been proposed by either side. Several substantial objections are made to a one and \one-half per cent grade by counsel for the defendant. They are in part as follows:

That it is a grade known as a “momentum grade,” requiring for the passage of heavy trains over it a speed of at least twenty-six miles an hour, while the engines used by the Terminal Company have a maximum speed of only twenty miles an hour. These engines cannot go faster, with safety, and engines of a different character would be unsuitable to the requirements of the defendant’s business. The terminal is a belt line, engaged in the work of transferring trains to and from various railroads entering the city of Toledo and taking and delivering freight at various industrial plants along its line. To require an entire change of its motive power would, it is claimed, interfere with the purposes of the company to a far greater extent than interference would be or has been caused to the plaintiff company by the crossing at grade. In response to a suggestion that the necessity for high speed to overcome such grade might be obviated by the use of a pusher-engine, evidence is offered that the maintenance of one such engine at the crossing would involve an- expense of $60 for every twenty-four hours, an aggregate of more than $20,000 a year.

Various other difficulties are suggested, which I will not enumerate, in the way of the adoption of this suggested grade of one and one-half per cent. We have concluded, in view of all the circumstances before us, that while the consummation of the plan might be within the bounds of feasibility, the expense of its construction and maintenance and the hazard and inconvenience attendant upon its use, coupled with the dangers which might arise from the suggested speed at street crossings, and possible municipal regulations as to such speed, all render the adoption of the plan -one that it would be unreasonable to require.

As to the other plan, or a 65 per cent grade, we think that the great cost may fairly be, taken into account. In nearly all if the Pennsylvania cases cited, the element of expense received consideration from the court and wherever a crossing at grade was prevented the action of the court seems to have been based partly upon the fact that the expense was moderate. In this connection it should not be overlooked that our original statute contains no provision for an equitable apportionment of the expense between the two companies. If the crossing should involve a cost of from $200,000 to $240,000 the plaintiff would, unquestionably, insist that it should be entirely borne by the defendant. I have already quoted language from the case in Pennsylvania Ry. v. Railway, supra, which might be used to sustain such contention. The adoption of a 65 per cent grade — which is the highest grade conceded by defendant to be feasible — would necessitate a change of the established grade of certain streets of the city of Toledo and would, it is claimed, cut off convenient access to industrial plants, to .the great injury of defendant’s business. Upon this point, as upon the other, it would not be profitable .to go into a review of the evidence.

We are of the opinion that although this statute can by its terms be invoked only by one of the corporations interested, one of the purposes of the statute was to conserve- and protect the interests of the public. Grade crossings, in the interest of safety, are to be avoided if it is reasonable and practicable so to do, but considering the uses made of these tracks by both companies, the results of their long experience with the interlocking device, the comparatively slight interruption of the trains of either, the expense and other difficulties attendant upon the construction of any suggested overhead crossing, we are unanimously of the opinion that the case is not one requiring the preventive application of the statute. We feel that to require an overhead crossing is not so imperatively demanded in the interest of public safety as to justify the placing of this heavy burden on the defendant. The public has an interest in the continued prosperity and development of the enterprises inaugurated by both companies and the court should not adopt a harsh construction of the law and application of the evidence resulting in seriously affecting such prosperity and development. Any operation of a railroad is attended with some danger to persons engaged in such operation and others, but in spite of such danger, in view of the great benefits derived by the public, the enierprises are fostered and encouraged. It is our judgment that the petition of the plaintiff be dismissed.

Haynes and Parker, JJ., concur.


author: HENRY, J.

text:
    ATTORNEY AND CLIENT — LIBEL.
    [Cuyahoga (8th) Circuit Court,
    June 18, 1909.]
    Marvin, Winch and Henry, JJ.

      Herman Preusser v. F. V. Faulhaber.
    1. Charges for Disbarment of Attorney, improperly Instituted, not Basis for Libel Action, Being Privileged.
    The privileged character of language used in judicial proceedings is absolute; hence, an attempt to institute disbarment proceedings, by preferring written charges and filing them in the office of clerk of courts, having failed because not conforming to the order of procedure prescribed by R. S. 563 (Gen. Code 1707) cannot be made the basis of an action for libel in that such charges were not filed with any judge.
    2. Knowledge Brought to Judge of Disbarring Acts by Written Charges Filed with Clerk of Courts.
    Knowledge of probable guilt of an attorney, upon which disbarment proceedings may be instituted under R. S. 563 (Gen. Code 1707), is properly brought to the judge by the complainant’s putting the charges in writing and depositing them with the clerk (preferably, sealed to be delivered) for such action thereon as the judge may take; it is neither necessary nor desirable that such charges should be whispered orally to the judge called to act upon them.
    [Proof of this decision was submitted to Judge Henry and corrected. — Ed.]
    Error to common pleas court.

      Herman Preusser, for plaintiff in error.

      M. P. Mooney, for defendant in error.

      Affirmed, no op., Preusser v. Faulhaber, 82 O. S. 466.

   HENRY, J.

The parties stand related^ here as they stood below. There the plaintiff in error brought action for an alleged libel contained in certain written charges against him as an attorney at law filed in the office of the clerk of the court of common pleas by the defendant in error. The charges so filed were acted upon by that court and sustained; but, upon review in this court, we held that though by R. S. 563 (Gen. Code 1707), “•Judges of such courts are required to cause proceedings to be instituted against any attorney at law, when it in any manner comes to the knowledge of any judge in whose court such attorney practices, that such attorney is probably guilty of any of the causes of suspension or removal,” and “before any attorney is suspendel or removed, written charges must be filed against him,” the statutory order of procedure had not been followed. That order is in brief, so far as it is pertinent to the present cause:

1. Knowledge coming to a judge of the probable guilt of an attorney.

2. Proceedings caused by the judge to be instituted against the attorney by the appointment of a person or persons to file and prosecute charges.

3. The filing of written charges, etc. Manifestly, therefore, the charges filed by Faulhaber against Preusser did not of themselves amount to the institution of a disbarment proceeding. A judge of the court in the office of whose clerk the charges were filed might, -in his discretion, have treated them' as bringing to his knowledge the probable guilt of the accused; whereupon it would have become his duty to cause proceedings to be instituted. But he could not proceed to try charges which were filed without previous authority from him.

After we so held the disbarment proceedings to have been irregular and the judgment of suspension from practice therein pronounced by the court below to have been without jurisdiction, a libel suit was begun by Preusser, in which he merely alleged that the said libelous charges against him were published by Faulhaber, and omitted to mention the eircumstances above set forth. When that ease came before us, we ’# held that the charges quoted bore internal evidence of having 'i been filed in a disbarment proceeding; and' without any aver- < ment that such proceeding was a mere cloak maliciously employed to make the publication a privileged one, the alleged libel was not actionable.

Thereupon Preusser began a second action for libel, based upon the same charges; although the record here does not dis: close that any prior action for said libel was ever commenced or decided. In this new action, he discloses' all the circumstam ces, and adds other averments which he relies on to escape the application of the principles announced in the former case. Tie relies mainly upon the fact that the so-called charges were ■ filed not with any judge, but in the office of the clerk of the court of common pleas, — the publication counted and relied on being to a certain deputy clerk.

We do not concur in the distinction thus attempted to be made. In our view, the proper way to bring charges in such cases to the attention of a judge is by putting them in writing and depositing them with the clerk of the court for such action thereon as the judge must take, in case he finds the accused attorney “probably guilty.” It might be more delicate if the accusation so deposited with the clerk were left sealed for delivery to the judge or judges, as in .the ease of Wilson v. Whitacre, 2 Circ. Dec. 392 (4 R. 15); but it is neither necessary nor desirable that such charges should be whispered orally into the ear of a judge who is called to act judicially upon them.

•As to the question of privilege, we need not again discuss the eases, that were cited in our former opinion. Suffice it to say that we do not feel warranted in qualifying the privileged character of language used in judicial proceedings unless and until the Supreme. Court shall decide that that privilege is not absolute.

The judgment is affirmed.

Marvin and Winch, JJ., concur.


text:
    ATTORNEY AND CLIENT — LIBEL.
    [Lorain (8th) Circuit Court,
    December 28, 1909.]
    Marvin, Winch and Henry, JJ.

      Fritz Rudin v. Lou Fauver.
    Statements by Attorneys Relative to Matters in Court not Libelous.
    Statements made in court by attorneys and others relative to matters in litigation therein are privileged and cannot be made the basis of an action for libel.
    [Proof of this decision was submitted to Judge Henry and cor- . rected. — Ed.]
    Error to common pleas court.

      Fritz Iiudin, for plaintiff in error.

      Stroup c£ Fauver, for defendant in error.

      Affirmed, no op., Rudin v. Fauver, 83 O. S. 168.

   HENRY, J.

This proceeding in error is brought to reverse a judgment rendered by the court below upon sustaining a demurrer to the petition in an action of libel, and the parties, therefore, stand as they stood below. The alleged libel consists of allegations of fraud and corruption on the part of the plaintiff in error contained in a petition filed by the defendants in error as attorneys in a preceding case in the court of common pleas. It is charged that these allegations were maliciously and gratuitously made, without any necessity arising in the nature of the relief prayed for, to make the plaintiff in error a party or to allege anything about him, and that the allegations in question were wholly false.

It is unnecessary to go into the question of materiality of the allegations, constituting the alleged libel, to the cause wherein they were .made, further than to say that they have no such obvious irrelevancy or utter want of relation to the action as to put them entirely out of the pale of privilege. The real question that we have is whether all statements made by attorneys and others in court, in relation to matters in litigation therein, are the subject of an absolute or only a qualified privilege. This question seems never to have been directly decided by the Supreme Court of Ohio. It was found unnecessary to decide it in the case of Lanning v. Christy, 30 Ohio St. 115 [27 Am. Rep. 431], and Liles v. Gaster, 42 Ohio St. 631. There is an obiter dictum in the case of the Post Publishing Co. v. Maloney, 50 Ohio St. 71, 84 [33 N. E. Rep. 921], that:

“In such cases the privilege constitutes an absolute bar to the action.”

Assuming that such is the law in this state, the demurrer below was properly sustained. We are unable to say that this was error, and the judgment is therefore affirmed.

Marvin and Winch, JJ., concur.


author: SMITH, J.

text:
    EVIDENCE — TRIAL.
    [Hamilton (1st) Circuit Court,
    January, 1911.]
    Giffen, Smith, and Swing, JJ.
    Alva Green v. C., L. & A. Traction Co.
    Variance in Plaintiff's Testimony Insufficient Ground for an Instructed Verdict.
    Variance in the testimony of plaintiff in an action for personal injuries on direct and cross-examination Hs not, taken alone, sufficient ground for a nonsuit.

      T. B. Snyder and L. T. Michie, for plaintiff in error.

      Stanley Shaffer; for defendant in error.
   SMITH, J.

While the evidence of the plaintiff in error upon the direct examination was in variance with that given by him upon his cross-examination, yet we do not think this discrepancy would entitle defendant in error to a nonsuit.

“A motion to arrest the testimony from the jury and render a judgment against the party on whom the burden of proof rests, involves an admission of all the facts which the evidence tends to prove, and presents only a question of law for the court; but if there is evidence tending to prove each material fact put in issue, and indispensable to a recovery, it should be submitted to the jury under proper instructions.” Dick v. Railway, 38 Ohio St. 389.

So long as there is evidence tending to prove the whole issue the case should be submitted to the jury. Ellis v. Insurance & Tr. Co. 4 Ohio St. 628 [64 Am. Dec. 610].

As the court therefore erred in instructing the jury to return a verdict for the defendant in error at the close of plaintiff in error’s testimony, the judgment thereon is reversed and a new trial awarded.

Giffen and Swing, JJ., concur.


author: WINCH, J.

text:
    EMINENT DOMAIN — MUNICIPAL CORPORATIONS.
    [Cuyahoga (8th) Circuit Court,
    November 27, 1911.]
    Marvin, Winch and Henry, JJ.

      John G. White et al. v. Cleveland (City). John G. White v. Cleveland (City) et al. C. & P. Ry. and Pennsylvania Co. v. Cleveland (City) et al.
    1. Statute Giving Municipalities Power to Appropriate Fee in Lands Condemned for Other Uses is Valid.
    Act 98 O. L. 164 (Gen. Code 3679-3681, 3690-3692, 3699-3702), giving municipalities the right to appropriate the fee of previously condemned lands for public uses- and contract the same for depot and wharf purposes, is a valid enactment.
    2. Statute Giving Municipalities Additional Power to Lease to Navigation Companies Wharf Property Belonging to Corporation Held Valid.
    Act 101 O. L. 236 (Gen. Code 3699-1), giving municipalities additional power to lease wharf property belonging to the city to navigation companies, is valid, being for a public purpose, one that might be appropriated by any such company itself; nor does the fact that such landing places must be first located and acquired by the city invalidate the act.

      3. Passing Ordinance to Appropriate Property for One Public Use not Fraudulent if Intention was Present to Devote Property Taken to Another Püblic Use.
    A municipal council, passing ordinances to sell public land to railroads for depot purposes and to lease landing places to navigation companies, commits no fraud of indirection to appropriate reversioners’ rights for park purposes, growing out of the intention of councilmen to sell and lease such property as stated.
    [Syllabus approved by the court.]
    Appeal from common pleas court.

      White, Johnson & Gannon, Squire, Sanders & Dempsey and A, H. Fiebach, for plaintiffs:
    The plaintiff has a right to show the real purpose of the appropriation proceedings, and to do this by parol, and for this purpose all evidence is .competent. P. G. C. <& St. L. By. y. Greenville, 69 Ohio St. 487 [69 N. E. Rep. 976] ; Giesy y. Railway, 4'Ohio St. 308; Bliss v. Kraus, 16 Ohio St. 54; State y. Gas, Light & Coke Co. 18 Ohio St. 262; Iron Railway v. Ironton, 19 Ohio St. 299; State v. Gas Co. 37 Ohio St. 45; Morehouse v. Norwalk, 8 Dec. Re. 199 (6 Bull. 267) ; Kansas y. .Hyde, 196 Mo. 498 [96 N. W. Rep. 201; 7 L. R. A. (N. S.) 639; 113 Am. St. Rep. 766]; Jenkins v. Railway, 4 Ont. 593; Ligare v. Chicago, 139 111. 46 [28 N. E. Rep. 934; 32 Am. St. Rep. 179] ; Corcoran v. Railway, 149 111. 291 [37 N. E. Rep. 68] ; Chicago & N. W. Ry. v. Galt, 133 111. 657 [23 N. E. Rep. 425] ; Strahan v. Malvern, 77 la. 454 [42 N. W. Rep. 369]; Farist Steel Co. v. Bridgeport, 60 Conn. 278 [22 Atl. Rep. 561; 13 L. R. A. 590] ; South Haven v. Van Burén, 140 Mich. 117 [103 N. W. Rep. 521] ; San Mateo County v. Coburn, 130 Cal. 631 [63 Paci Rep. 78, 621] ; Trombley v. Humphrey, 23 Mich. 471 '[9 Am. Rep. 94] ; Darlington v. United States, 82 Pa. St. 382 [22 Am. Rep. 766] ; Kohl v. United States, 91 U.. S. 367 [23 L. Ed. 449] ; Weidenfeld v. Railway, 48 Fed. Rep. 615; Edgewood v. Railivay, 79 Pa. St. 257; Deemer v. Railway, 212 Pa. St. 491 [61 Atl. Rep. 1014]; Johnston v. Railway, 58 la. 537 [12 N. E. Rep. 576]; Niagara Falls & W. Ry. In re, 108 N. Y. 375 [15 N. E. Rep. 429]; Chicago & E. I. Ry. v. Wiltse, 116 111. 449 [6 N. E. Rep. 49] ; Bridal Veil Lumbering Co. y.

      Johnson, 30 Ore. 205 [46 Pac. Rep. 790; 34 L. R. A. 368; 60 Am. St. Rep. 818] ; Apex Transp. Co. v. Carbade, 32 Ore. 582 [52 Pac. Rep. 573; 62 L. R. A. 513]; Sholl v. Coal Co. 118 111. 427 [10 N. E. Rep. 199; 59 Am. Rep. 379]; New Orleans Term. Co. v. Teller, 113 La. 733 [37 So. Rep. 624] ; Bridivell v. Terminal Co. 127 Oa. 520 [56 S. E. Rep. 624; 10 L. R. A. (N. S.) 909] ; Ulmer v. Railway, 98 Me. 579 [57 Atl. Rep. 1001; 66 L. R. A. 387]; Brown v. Gerald, 100 Me. 351 [61 Atl. Rep. 785; 70 L. R. A. 472; 109. Am. St. Rep. 526] ; McDaniel v. Columbus, 91 Ga. 462 [17 S. E. Rep. 1011] ; Hodgerson v. Railway, 160 111. 430 [43 N. E. Rep. 614] ; Thom v. Public Service Co. 128 Ga. 187 [57 S. E. Rep. 75]; HopMnton v. Win-ship, 35 N. H. 209; State v. Railway, 42 Wash. 632 [85 Pae. Rep. 344; 7 L. R. A. (N. S.) 198] ; Dunham v. Williams, 36 Barb. (N. Y.) 316; Lynch v. Forbes, 161 Mass. 302 [37 N. E. Rep. 437; 42 Am. St. Rep. 402] ; Forney v. Railway, 23 Neb. 465 [36 N. E. Rep. 806] ; Smedley v. Erwin, 51 Pa. St. 445; Jacobs v. Water Supply Co. 220 Pa. St. 388 [69 Atl. Rep. 870; 21 L. R. A. (N. S.) 410] ; I-Iam v. Levee Commissioners, 83 Miss. 534 [35 So. Rep. 943]; Caretta Ry. v. Coal Co. 62 W. Ya. 185 [57 S. E. Rep. 401] ; Santa Ana v. Brunner, 132 Cal. 234-[64 Pac. Rep. 287] ; Richland School Tp. v. Overmyer, 164 Ind. 382 [73 N. E. Rep. 811] ; Kansas & T. Coal Ry. v. Coal & Min. Co. 161 Mo. 288 [61 S. AY. Rep. 684; 51 L. R. A. 936; 84 Am. St. Rep. 717]; Kansas City v. Hyde, 196 Mo. 498 [96 S. W. Rep. 201; 7 L. R. A. (N. S.) 639; 113 Am. St. Rep. 766] ; Connolly v. Woods, 13 Idaho 591 [92 Pac. Rep. 573].
    That the city acquired only an easement for park purposes is, we think, established by the statute. The authorities all agree that unless the statute expressly, or by necessary or clear intendment, authorizes the taking of a fee, only an easement can be taken. Vought v. Railway, 58 Ohio St. 123 [50 N. E. Rep. 442]; 2 Lewis, Em. Domain 541; McCombs v. Stewart, 40 Ohio St. 647; Newton v. Railway, 115 Fed. Rep. 781 [53 C. C. A. 599] ; Reed v. Park (Comrs.) 100 Minn. 167 [110 N. W. Rep. 1119] ; Devine v. Lord, 175 Mass. 384 [56 N. E. Rep. 570]

      Under the Ohio statute relating to the appropriation of land for park purposes, only an easement and not a fee is taken. Newton v. Railway, 115 Fed. Rep. 781 [53 C. C. A. 599] ; Reed v. Parle (Comrs.) 100 Minn. 167 [110 N. W. Rep. 1119].
    The law officer could not extend the appropriation beyond what was authorized by the resolution; and second, neither the law officer nor the city could take more than the statute authorized. This is true even, although the property owner might consent that the city might take more than the statute authoi’ized. Brooklyn Park (Comrs.) v. Armstrong, 45 N. Y. 239; Newton v. Railway, 115 Fed. Rep. 781 [53 C. C. A. 599].
    The state held title to the soil under water only in trust for the general public, for protecting rights of navigation and fisheries. Sloan v. Biemiller, 34 Ohio St. 492; Duke of Buccleugh v. Board of Public Works, L. R. 5, House of L. 418; Lyon v. Fishmongers Co. L. R. 1 App. Cas. 662; Attorney General v. Wemyss, L. R. 13 App. Cas. 192; Brookhaven v. Smith, 188 N. Y. 74 [80 N. E. Rep. 665; 9 L. R. A. (N. S.) 326; 11 Ann. Cas. 1]; Dutton v. Strong, 66 U. S. 23 [17 L. Ed. 29] ; Yates v. Milwaukee, 77 U. S. (10 Wall.) 497 [19 L. Ed. 984]; Hobart v. Hall, 174 Fed. Rep. 433; Illinois Cent. Ry. v. Illinois, 146 U. S. ’387 [13 Sup. Ct. Rep. 110; 36 L. Ed. 1018] ; Dalton v. Hazelet, 182 Fed. Rep. 561 [105 C. C. A. 99J ; Union Depot Co. v. Brunswick, 31 Minn. 297 [17 N. W. Rep. 626; 47 Am. Rep. 789] ; Miller v. Mendenhall, 43 Minn. 95 [44 N. W. Rep. 1141; 8 L. R. A. 89; 19 Am. St. Rep. 219]; Hanford v. Railway, 43 Minn. 104 [44 N. W. Rep. 1144] ; Gilbert v. Elckidge, 47 Minn. 210 [49 N. W. Rep. 679; 13 L. R. A. 411]; Lamprey v. State, 52 Minn. 181 [53 N. W. Rep. 1139; 18 L. R. A. 670; 38 Am. St. Rep. 541]; 1 Farnham, Waters pp. 511, 534; Sullivan Timber Co. v. Mobile, 110 Fed. Rep. 186; People v. Mould, 37 App. Div. 35 [55 N. Y. Supp. 453],
    It is entirely immaterial in these actions to enjoin the appropriation proceedings, whether or not the use to which the city intends to put the land is a public use, or whether or not the city might appropriate for that use. Eureka Basin

      Warehouse & Mfg. Co., In re, 96 N. Y. 42; Waterloo Presbyterian Soc. (Tr.) v. Bailway, 3 Hill (N. Y.) 567; Hatch v. Bailway, 18 Ohio St. 92; Junction By. v. Buggies, 7 Ohio St. 1; Voughl v. Bai'kvay, 58 Ohio St. 123 [50 N. E. Rep. 442] ; Schaaf v. Bailway,. 66 Ohio St. 215 [64 N. E. Rep. 145] ; Callen v. Electric L. Co. 66 Ohio St. 166 [64 N. E. Rep. 14; 58 L. R. A. 782],

      X. D. Baker, Luther Bay, Gottlder, Holding & Hasten and Frank E. Stevens, for defendants:
    The city of Cleveland had the power to execute the lease made by it to the two transportation companies, Malone v. Toledo, 28 Ohio St. 643; Hatch v. Bailway, 18 Ohio St. 92; Little Miami v. Dayton, 23 Ohio St. 510; Hickok v. Hine, 23 Ohio St. 523 [13 Am. Rep. 255] ; Cincinnati, S. & C. By. v. Belle Centre, 48 Ohio St. 273 [27 N. E. Rep. 464] ; Vought v. Bailway, 58 Ohio St. 123 [50 N. E. Rep. 442] ; Pittsburgh & W. By. v. Gar-' lick, 11 Circ. Dec. 337 (20 R. 561); Garlick v. Bailway, (no op.) 66 Ohio St. 688; Newton v. Bailway, 115 Fed. Rep. 781 [53 C. C. A. 599] ; Giesy v. Bailway, 4 Ohio St. 308; Platt v. Bailway, 43 Ohio St. 228 [1 N. E. Rep. 228] ; Chagrin Falls & C. Plk. Bd. Co. v. Cane, 2 Ohio St. 419; Day v. Bailway, 44 Ohio St. 406 [7 N. E. Rep. 528] ; Boston Water Power Co. v. Bailway, 40 Mass. (23 Pick.) 360; 15 Cyc. 614.
    The use to which the lands of Lake View Park will be put under .the terms of the lease is a public use. Mayor of Neiu York, In re, 135 N. Y. 253 [31 N. E. Rep. 1043; 31 Am. St. Rep. 825]; Belcher Sugar Befining Co. v. Elevator Co. 101 Mo. 192 [13 S. W. Rep. 822; 8 L. R. A. 801] ; Ferry v. Hankie, 31 Md. 346; Pacific Coast S. S. Co. v. Kimball, 114 Cal. 414 [46 Pac. Rep. 275] ; Hecker v. Dock Co. 24 Baíb. (N. Y.) 215.
    The Cleveland & Pittsburgh Railway Company, by the appropriation proceedings of 1872, received the full market value of its land and is estopped from asserting any further interest therein; Pittsburgh, C. C. & St. L. By. v. Greenville, 69 Ohio St. 487 [69 N. E. Rep. 976] ; Hatch v. Bailway, 18 Ohio St. 92; Pittsburgh & W. By. v. Garlick, 11 Circ. Dec. 337 (20 R. 561), affirmed, (no op.) Garlick v. Railivay, 66 Ohio St. 688; Giesy v. Railway, 4 Ohio St. 330; Detroit City Ry. v. Mills, 85 Mich. 634 [48 N. W. Rep. 1007]; Chase v. Manufacturing Go. 58 Mass. (4 Cush.) 152; McCombs v. Stewart, 40 Ohio St. 647; Corwin v. Cowan, 12 Ohio St. 629; Malone v. Toledo, 28 Ohio St. 643; Vought v. Railway, 58 Ohio St. 123 [50 N. E. Rep. 442]; Newton v. Railway, 115 Fed. Rep. 781 [53 C. C. A. 599].
    The mere fact that a change of use is made in the lands appropriated does not impose an additional burden thereon, but the plaintiff must go further and show that by the performance of the lease, he will suffer damage to his property to an extent appreciable in character and amount, Vought v. Railway, 58 Ohio St. 123 [50 N. E. Rep. 442] ; Federal Gas & Fuel Co. v. Townsend, 14 Dec. 5 (1 N. S. 289); Manigault v. Springs, 199 ü. S. 473 [26 Sup. Ct. Rep. 127; 50 L. Ed. 274] ; Consolidated Canal Co. v. Canal Co. 177 U. S. 296 [20 Sup. Ct. Rep. 628; 44 L. Ed. 777] ; Morgan v. Binghampton, 102 N. Y. 500 [7 N. E. Rep. 424] ; Gray v. Railway, 128 N. Y. 499 [28 N. E. Rep. 498] ; Western Ry. v. Railway, 96 Ala. 272 [11 So. Rep. 483; 17 L. R. A. 474]; O’Reilly v. Railway, 148 N. Y. 347 [42 N. E. Rep: 1063; 31 L. R. A. 407] ; High, Injunction Secs. 740, 742.
    No additional burden will be imposed upon the upland of the plaintiff by the performance of the lease, Malone v. Toledo, 28 Ohio St. 643; Brooklyn Park (Comrs.) v. Armstrong, 45 N. Y. 234 [6 Am. Rep. 70],
    The new made land belongs to the state of Ohio and the Cleveland & Pittsburgh Railway Company has no interest in it as owner thereof, Sloan v. Biemiller, 34 Ohio St. 492; Seaman v. Smith-, 24 111. 521; Revell v. People, 177 111. 468 [52 N. E. Rep. 1052; 43 L. R. A. 790] ; Delaplaine v. Railway, 42 Wis. 214; Fletcher v. Phelps, 28 Vt. 257; C.& St. L. Ry. v. Valentine, 19 Barb. (N. Y.) 489; Wood v. Kelley, 30 Me. 47; United States v. Pache Co. 69 U. S. (2 Wall.) 587 [17 L. Ed. 865]; Rice v. Rudáiman, 10 Mich. 125; Shively v. Bowlby, 152 U. S. 1 [14 Sup. Ct. Rep. 548; 38 L. Ed. 331] ; Barney v. Keokuk 94 U. S. 324 [24 L. Ed. 224] ; McGilvra v. Boss, 215 U. S. 70 [30 Sup. Ct. Rep. 27; 54 L. Ed. 95] ; Hardin v. Jordan, 140 U. S. 371 [11 Sup. Ct. Rep. 808, 838; 35 L. Ed. 428] ; Manchester v. Massachusetts, 139 U. S. 240 [11 Sup. Ct. Rep. 559; 35 L. Ed. 159]; Smith v. Maryland, 59 U. S. (18 How.) 71 [15 L. Ed. 269] ; McCready v. Virginia, 94 U. S. 391 [24 L. Ed. 248]; Martin v. Waddell, 41 U. S. (16 Pet.) 367 [10 L. Ed. 997]; Den v. Jersey Co. 56 IT. S. (15 How.) 426 [14 L. Ed. 757] ; Illinois v. Railway, 146 U. S. 387 [13 Sup. Ct. Rep. 110; 36 L. Ed.. 1018]; Hoboken v. Railway, 124 U. S. 656 [8 Sup. Ct. Rep\-643; 31 L. Ed. 543]; Scranton v. Wheeler, 57 Fed. Rep. 803; Kenyon v. Knipe, 46 Fed. Rep. 309; Home for Aged Women v. Commonwealth, 202 Mass. 422 [89 N. E. Rep. 124; 24 L. R. A. (N. S.) 79] ; Sage v. New York, 154 N. Y. 61 [47 N. E. Rep. 1096; 38 L. R. A. 606; 61 Am. St. Rep. 592] ; Cobb v. Lincoln Park (Comrs.), 202 111. 4.27 [67 N. E..Rep. 5; 63 L. R. A. 264; 95 Am. St. Rep. 258]; Saunders v. llailway, 144 N. Y. 75 [38 N. E. Rep. 992; 26 L. R. A. 378; 43 Am. St. Rep. 729]; St. Anthony Falls Water Potcer Co. v. Commissioners, 168 U. S. 349 [18 Sup. Ct. Rep. 157; 42 L. Ed. 497]; Packer v. Bird, 137 IT. S. 661 [11 Sup. Ct. Rep. 230; 34 L. Ed. 819] ; St. Louis v. Buts, 138 U. S. 226 [11 Sup. Ct. Rep. 337; 34 L. Ed. 941] ; Mann v. Tacoma Land Co. 153 IT. S. 273 [14 Sup. Ct. Rep. 820; 38 L. Ed. 714]; St. Louis v. Myers, 113 U. S. 566 [5 Sup. Ct. Rep. 640; 28 L. Ed. 1131] ; Atlee v. Packet Co. 88 U. S. (21 Wall.) 389 [22 L. Ed. 619] ; Illionis Steel Co. v. Bilot, 109 Wis. 418 [85 N. W. Rep. 402; 83 Am. St. Rep. 905] ; Dana v. Wharf Co. 31 Cal. 118 [89 Am. Dec. 164] ; Coburn v. Ames, 52 Cal. 385 [28 Am. Rep. 634].
    The fight of access to navigable water in the plaintiff cannot possibly vest in it a fee simple title to the new made land, Dutton v. Strong, 66 U. S. (1 Black.) 1 [17 L. Ed. 29] ; Yates v. Milwaukee, 77 U. S. (10 Wall.) 497 [19 L. Ed. 984] ; Illinois C. By. v. Illinois, 146 U. S. 387 [13 Sup. Ct. Rep. 110; 36 L. Ed. 1018],
    The performance of the lease made by the city of Cleveland to the two transportation companies does not impose any additional burden upon the riparian rights of the plaintiff, Brooklyn Park (Comrs.) v. Armstrong, 45 N. Y. 234 [6 Am. Eep. 70]; Scranton v. Wheeler, 113 Mich. 565 [71 N. W. Eep. 1091; 67 Am. St. Eep. 484] ; Gibson v. United States, 166 U. S. 269 [17 Sup. Ct. Eep. 578; 41 L. Ed. 996]; Hawkins Point Lighthouse Case, 39 Fed. Eep. 77; Wilson v. Marsh Co. 27 U. S. (2 Pet.) 245 [7 L. Ed. 412]; Gilman v. Philadelphia, 70 U. S. (3 Wall.) 713 [18 L. Ed. 96] ; Pound v. Turck, 95 U. S. 459 [24 L. Ed. 525]; Wisconsin v. Duluth, 96 TJ. S. 379 [24 L. Ed. 668] ; South Carolina v. Georgia, 93 U. S. 4 [23 L. Ed. 782]; Stockton v. Railway, 32 Fed. Eep. 9; Hoboken v. Steam Packet Co. 124 U. S. 656 [8 Sup. Ct. Eep. ' 613] ; Winifrede Coal Co. v. Railway & Bridge Co. 11 Dec. Ee. 35 <24 Bull. 173); Mulilker v. Railway, 197 U. S. 544 [25 Sup. Ct. Eep. 522]; Hatch v. Railway, 18 Ohio St. 92; Pollock v. Shipbuilding Co. 56 Ohio St. 655 [47 N. E. Eep. 582] ; Yates v. Milwaukee, 77 ü. S. (10 Wall.) 497 [19 L. Ed. 984]; Illinois •C. Ry. v. Illinois, 146 U. S. 387 [13 Sup. Ct. Eep. 110; 36 L. Ed. 1018]; Lyon v. Fishmongers Co. 1 L. E. H. L. 662; Shively v. Bowlby, 152 U. S. 1 [14 Sup. Ct. Eep. 548; 38 L. Ed. 331] ; St. Paul & P. Ry. v. Schurmeier, 74 U. S. (7 Wall.) 272 [19 L. Ed. 74] ; Linthicum v. Ray, 76 U. S. (9 Wall.) 241 [74 U. S. 657]; Wetmore v. Gaslight Co. 42 N. Y. 384; Harrington v. Edwards, 17 Wis. 604; Johnson v. Barret, Aleyn 10; Jones v. Pettibone, 2 Wis. 225; Walker v. Shepardson, 2 Wis. 282; Barnes v. Racine, 4 Wis. 474; Mariner v. Schulte, 13 Wis. 692; Arnold v. Elmore, 16 Wis. 536; Olson v. Merrill, 42 Wis. 203; Norcross v. Griffiths, 65 Wis. 599 [56 Am. Eep. 642] ; Yates v. Judd, 18 Wis. 126; Scranton v. Wheeler, 179 U. S. 141 [21 Sup. Ct. Eep. 48; 45 L. Ed. 126] ; Revel v. People, 177 111. 795 [52 N. E. Eep. 1052].
    l' The new made land.is not a part of Lake View Park, Shively v. Bowlby, 152 U. S. 36 [14 Sup. Ct. Eep. 548; 38 L. Ed. 331]; Chicago v. Ward, 169 111. 392 [48 N. E. Eep. 927; 38 L. E. A. 849] ; Bliss v. Ward, 198 111. 104 [64 N. E. Eep. 705]; Ward v. Field Museum, 241 111. 496 [89 N. E. Eep. 731],
    There can be no claim in the ease at bar that there has been an abandonment in the lands of Lake View Park so as to cause them to revert to the original owners. Hatch v. Raihvay,
      18 Ohio St. 92; Junction Ry. v. Ruggles, 7 Ohio St. 1; Vought v. Railway, 58 Ohio St. 123 [50 N. E. Rep. 442] ; Corwin v. Cowan, 12 Ohio St. 629; Malone v. Toledo, 28 Ohio St. 643; Railway v. Belle Centre, 48 Ohio St. 273 [27 N. E. Rep. 464] ; Street Ry. v. Raihvay, 50 Ohio St. 603 [36 N. E. Rep. 312] ; Colby v. Toledo, 12 Circ. Dec. 347 (22 R. 732) ; Little Miami Ry. v. Dayton, 23 Ohio St. 510; Newton v. Railway, 115 Fed. Rep. 781 [53 C. C. A. 599].
    The court, if it grants any order of injunction at the instance of the plaintiff as a reversionary owner, should only enjoin the performance of the lease made by the city of Cleveland to the two transportation companies until compensation is made to the plaintiff for any additional burden imposed by the terms thereof, Cincinnati & S. C. Ave. St. Ry. v. Cumminsville, 14 Ohio St. 523; Scioto Val. Ry. v. Lawrence, 38 Ohio St. 41 [43 Am. Rep. 419]; Vought v. Railway, 66 Ohio St. 215 [50 N. E. Rep. 442] ; Gorrill v. Railivay, 2 Circ. Dec. 617 (4 R. 398); Travis County v. Trogdon, 20 S. W. Rep. 46 (Tex. Ct. App.) ; McGhee Irrigation Ditch Co. v. Hudson, 85 Tex. 587 [22 S. W. Rep.’ 398].

       Affirming, White v. Cleveland, 21 Dec. 311; affirmed, no op., 87 O S. 000; 57 Bull. 472.

   WINCH, J.

In these cases we are asked to enjoin the city of Cleveland from appropriating certain so-called reversionary interests in the lands of Lake View Park for the ostensible purpose of perfecting its title in fee simple to said lands for park uses, but really for the purpose, as is claimed, of selling about thirty-five acres of said lands to the railroads for depot purposes, and from leasing a pier or dock in front of said park, near the extension of East Ninth street, to the navigation companies.

For these purposes, four suits were originally brought in the court of common pleas, two by taxpayers, one addressed against the appropriation proceedings, and one against the lease of the pier, and two by owners of reversionary rights, one against the appropriation proceedings and one against the lease of the pier.

By separate appeals of various parties interested, these four common pleas cases have become six cases in this court.

The lands of Lake View Park, originally appropriated in 1872, lie on the side hill fronting Lake Brie, for a distance of over 2,000 feet, between Erie, now East Ninth street on' the east, and'’Seneca, now West Third street, on the west, and extending from Summit avenue on the top of the hill at the south, to the right of way of the Cleveland and Pittsburgh Railroad Company at the bottom of the hill on the north, an area of about nine acres, which, in these proceedings, have been called the uplands;'next north of the Cleveland and Pittsburgh right of way is the right of way of the Lake Shore Railroad Company, at that time nearly at the water’s edge, and by the same proceedings all the property north of the Lake Shore right of way was appropriated, it being then a narrow strip of land, but a few feet in width. In 1894 the city of Cleveland put in a row of sheet piling and bulk heads parallel to the shore in front of the park and over 1,000 feet out in the lake, and established a public dumping ground there so that since said date the same has been filled in, and there are now about ninety-nine acres of made land in front of the upland.

In front of this made land, as an extension of East Ninth street, the city has built a pier 100 feet wide, extending out 713 feet to the harbor line established by the United States Government in 1898. Two hundred feet west of this pier is another pier of the same dimensions, which is the pier the city has undertaken to lease to the navigation companies.

The claims of plaintiffs with reference to the rights and title of the city in the premises, a¡s acquired by the appropriation proceedings of 1872, are as follows:

‘ ‘ The claim of plaintiffs in all four suits is that by the appropriation proceedings of 1872, the city acquired only, an easement .for park purposes in Lake View Park, including the uplands; that by appropriating an easement for park purposes in the shore, it at the same time appropriated for park purposes the riparian rights which were appurtenant to the shore; that these riparian rights included the right to wharf out, or make land to the limit of navigability, unless prevented by the state; that the city appropriated this right for park purposes; and having made land by the exercise of this riparian right without interference by the state, the made land was affected by the same easement for park purposes with which the upland was affected; that the piers are but a portion of the made land. Having the right to fill out the entire land to the harbor line, unless prevented by the state, the city had the right to fill out so much of it as it desired for this purpose, and its rights were neither lessened nor increased by the fact that it did not fill out-uniformly, but made part into piers and left part water.”

For the reasons and upon the authorities cited by counsel, for plaintiff in his brief, we conclude that the above recited claims are well founded.

As to the rights in the property which were not taken by the appropriation, and which in these cases are represented by the so-called reversioners, their claims are that “the word ‘easement’ presupposes an underlying right of property in somebody else than the owner of the easement. What is the nature of that property, whether it is to a reverter or a right to additional compensation in case of change of use, or only a right to prevent the change of use, is immaterial.”

The city, by procuring an amendment to the appropriation laws in 1906, recognized that as the law stood in 1872, it acquired only an easement for park purposes in the lands appropriated, and that if its title to the lands was to be enlarged, additional compensation would have to be made to the owner of the “underlying right of property.”

The amendment referred to is found in 98 O. L. 164, and as the city is proposing to proceed under that apt, to perfect in itself a title in fee simple, and its appropriation proceedings thereunder are the proceedings here sought to be enjoined, it is necessary to examine the purpose and effect of the said amendment.

The law, as amended, is now found in Gen. Code 3679, 3680, 3681, 3690, 3691, 3692, 3699, 3700, 3701 and 3702.

Said act reads as follows:

‘ ‘ Section 1. That sections 12, 13, 18 and 24 of an act passed October 22, 1902, entitled, ‘An act to provide for the organiza-. tion of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit so as to prevent the abuse of such power as is required by the constitution of Ohio, and to repeal all sections of the Revised Statutes inconsistent herewith/ be amended to read as follows:
“Sec. 12. Whenever it is deemed necessary to appropriate property, council shall pass a resolution, declaring such intent, defining the purpose of the appropriation, and setting forth a pertinent description of the land, and the estate or interest therein desired to be appropriated; and for waterworks purposes the council may appropriate such property as it may determine to be necessary; and immediately upon the passage of such resolution, declaring such intent, for which but one reading shall be necessary, the mayor shall cause written notice thereof to be given to the owner, person in possession thereof, or having an interest of record in, every piece of property sought to be appropriated, or to his authorized agent, and such notice shall be served by a person designated for that purpose, and return made in the manner provided by law for the service and return of summons in civil actions, and in case said owner, persons or their agents, cannot be found, notice shall be given by publication once a week for three consecutive weeks in a newspaper of general circulation in the corporation, and council may thereupon pass an ordinance by the votes of two-thirds of all members elected thereto', directing said appropriation to proceed.
“Sec. 13. Upon the passage of the aforesaid ordinance, the solicitor shall make application to the court of common pleas or to a judge in vacation, to the probate court, or to the insolvency court, in the county in which the land sought to be taken is located, which application shall describe as correctly as possible the land .to be appropriated, the interest or estate therein to he taken, the object proposed, and the name of the owner of each lot or parcel thereof.
“See. 18. The court shall make such order as to payment, deposit or distribution of the amounts assessed as may seem proper, may require adverse claimants to all or any part of the money or property to interplead and fully determine their rights in the same proceeding and may direct the time and manner in which possession of the property condemned shall be taken or delivered, and may, if necessary, enforce any order giving possession; and upon the payment or deposit, by the corporation, of the amount assessed, as ordered by the court, an absolute estate in fee simple shall be vested in said corpora-, tion, unless a lesser estate or interest is ashed for in the application, in which case such lesser estate or interest as is so ashed for shall be vested; and any municipal corporation shall have the power to again appropriate, in conformity with' the provisions of this act, any real estate which it has previously, lawfully appropriated, in order to perfect, in it, a title in fee simple absolute to such previously appropriated real estate.
"See. 24. No contract for the sale or lease of any real estate shall be made unless authorized by an ordinance, approved by the votes of two-thirds of all members elected to the council, and by the board or officer having supervision or management of such real estate, and when such contract is so authorized, it shall be made in writing by the board or officer having such supervision or management and only with the highest bidder, after advertisement once a week for five (5) consecutive weeks in a newpaper of general circulation within the corporation, provided that such board or officer may reject any or all bids and readvertise until all such real estate is sold or leased, as the case may be; provided, that whenever any city owns real estate suitable for the location of a passenger rcdlroad station, and cou-ncil shall by ordinance declare that it- is necessary that such land be devoted to such %ise, it shall be competent for such city to sell or lease or exchange such land to such railroad or railroads for such purpose in the folloiving manner. An ordinance authorizing and directing the mayor of the city to deed or lease the land shall be passed; council shall fix in such ordinance by metes and bounds the amount of land to be sold, leased or exchanged, the quantity of interest sold, leased or exchanged, and the consideration to be paid or ex changed therefor hy such railroad or railroads, and in such ordinance shall call thereon a special election, to he held upon a day fixed hy said ordinance not less than thirty (30) days from the passage thereof, and a majority of all the votes cast on such proposition shall he necessary to its ratification, and when so ratified, said ordinance shall he e/fecUv'e, and the mayor shall proceed to execute a deed of conveyaoice or lease of said property as therein provided, and in holding such special election, the provisions of section 2837, Revised Statutes, shall apply.
“Section 2. That said original sections 12, 13, 18 and 24 be and the same are hereby repealed. ’ ’

The amendment .consisted in inserting the words given in italics.

Manifestly the purpose and intent of this legislation was to change the law of the state, as theretofore announced by the courts, and to provide that instead of the municipality acquiring only an easement when it appropriates property for a particular purpose, it shall acquire an absolute estate in fee simple, unless a lesser estate or interest is ashed for in the application.

That the legislature has a right to change the law upon this subject, in so far as it applies to proceedings thereafter to be brought, there can be no doubt.

But, it is said, that the city of Cleveland, having once appropriated the lands in question for park purposes, has the full and complete use and enjoyment of the same for said purposes and has no need to appropriate for the same purpose the underlying rights of plaintiff reversioners. (It should be remarked here that the proceedings sought to be enjoined are for the appropriation of the reversioners’ rights, as stated in the resolution and application therefor, “for park purposes.”)-

This brings us to 'a consideration of the purpose and effect of that part of the last section of the act, now found as Gen. Code 3700, 3701 and 3702.

The whole act must be construed together and so construing it, it is perfectly apparent that the legislature intended that appropriation should be authorized for the purpose defined in the resolution and the object proposed in the application, phis the right to sell, lease or exchange the lands appropriated to a railroad or railroads, for depot purposes, if the same should be suitable for the location of' a passenger railroad station.

This gives a specific or good reason or purpose for the pending appropriation, although it is not required by the statute to be stated in the resolution or application, for the power to sell, lease or exchange is found in the chapter of the municipal code referring to the sale or lease of property, while the provisions regarding appropriation proceedings are found in the preceding chapter, yet, the municipality has a right under the act quoted, to appropriate for any of the purposes expressed in Gen. Code 3677, with the implied right of dominion over the property after its acquisition set forth in Gen. Code 3700, 3701 and 3702.

In other words, the last three sections may be read into Gen. Code 3677. It was not placed. there by the legislature, because it applies not- only to property appropriated, but to that acquired in other ways.

A, study of the act of 1906 confirms the suggestion of counsel for plaintiff that its enactment was procured by the city of Cleveland for the very purpose of getting rid of the rights of reversioners in Lake Yiew Park, or acquiring them, so that the city might dispose of part of said park to the railroads for depot purposes.

Was there anything unlawful in this legislation, or prohibited by the constitution ?

As already stated, one purpose of the legislature was to change the law with regard to the nature of the title vested in the city by appropriation and to make it a fee simple. So far, as this 'affects property thereafter appropriated it is a valid enactment.

Another purpose was to perfect or complete the title to land already held under appropriation; this was brought within the constitution by providing compensation to the owners of the underlying rights.

Another purpose was to authorize cities owning the fee simple title to real estate suitable for the location of a depot to declare the necessity that such land be devoted to such use, and to sell, lease or exchange it for such purpose.

The use here stated is for a public purpose. Railroads and depot companies are authorized to appropriate lands for such purposes. The great efforts required and immense sums of money expended in providing suitable terminal and depot facilities, in our large cities, testify to the public importance of such conveniences.

The record of these cases is full of a recognition of the public importance of a new depot in Cleveland by the city council and executive officials and civic organizations. General Manager Moon, of the Lake Shore Railroad, with the shrewd insight of a business man, spoke of “such a station as apparently the people want and the railroads think is quite beyond the railroad’s necessities.”

By reason of the large amount of land now needed for such purposes in large cities, and the convenience of having depots as near the center of the city as possible, it is manifest that sites for such depots can rarely be acquired without including therein public property; property of the city at an earlier date naturally devoted to some other public purpose, but, by reason of the city’s and the railroads’ growth, now peculiarly adapted to depot purposes.

It will be noticed that Gen. Code 3700 limits the use of the land sold to a public purpose; this is a dedication to that use; “the municipality may sell, lease or exchange such land to such railroad or railroads for stick purpose.”

A long line of cases in Ohio recognize the right of the legislature to authorize a change of use in land already appropriated for a public purpose, and the exercise of such right can be delegated by the legislature to a municipal or a private corporation. The only question raised in such cases has been as to the rights of the owners of “the underlying rights of property,” where the title has not been held in fee.

Malone v. Toledo, 28 Ohio St. 643; Vought v. Railway, 58 Ohio St. 123 [50 N. E. Rep. 442]; Newton v. Railway, 115 Fed. Rep. 781 [53 C. C. A. 599].

We find no infirmity in the legislation of 1906, and have treated of the matter at length because of the reason assigned for the alleged infirmity in the couneilmanie proceedings regarding the' pending appropriation proceedings. .

If there is no infirmity in the law, how can there be any in the couneilmanie proceedings?

The law authorizes the completion of the title to the park property for the purpose of turning over part of it for depot purposes. What taint of fraud is there in the proceedings if the eouneilmen had all this in their minds wdien they voted for the resolution upon which the proceedings depend?

What are they trying to accomplish by indirection when they follow'' the express language of the .statute ?

We find no answers to these questions which require us to grant the prayer of the petitions, either of the taxpayer or of the reversioners for an injunction against said' appropriation proceedings, so far as the depot use is contemplated.

Turning now to a consideration of the lease of the pier in question attempted to be made by the city to the navigation companies.

This lease was authorized by an ordinance passed in November, 1909.

May 10, 1910, the legislature.passed the following act, 101 O. L. 236:

‘ ‘ Sec. 3699-1. All municipal corporations shall have power to construct, maintain, use and lease, or grant the right to construct, maintain and. use, any pier, dock, wharf or landing for use by passenger or freight carriers, with buildings and appurtenances necessary to such use, on any land belonging to the corporation, and on and over any made or submerged land, wdiose title is in the corporation or the state of Ohio, in front of land belonging to the corporation. All municipal corporations shall also have power to construct, maintain, use and lease, or grant the right to construct, maintain and use, on and over any land belonging to the corporation and such made or submerged land, any steam, electric or street railroad tracks and appurtenances, necessary for the use of any pier, dock, wharf or landing as aforesaid. Such lease or grant may be made by the passage of an ordinance fixing its terms and conditions and by the acceptance thereof by the lessee or grantee. Land belonging to the corporation shall be construed to include also any land heretofore or hereafter appropriated or held by the corporation for streets, parks or other public purposes; but this .section shall not be construed to authorize the taking of reversionary or other property rights without such compensation •and proceedings as are authorized by law.”

May 31, 19.10, another ordinance was passed confirming the original lease. It is claimed that the legislative act quoted authorized and made good the lease in question, for its terms are within the wording of said act.

The same line of reasoning as that which led to a conclusion that the city may be authorized to perfect its title to the park property so as to enable it to sell part thereof for depot purpose, leáds to the conclusion that the ant of May, 1910, is a valid enactment.

This act, by its sectional numbering, is inserted between the old and new part of the last section of the act of 1906. We .treat it therefore as if it were a part of said act.

Had it been enacted in 1906, as part of said law, the only additional question to be determined would be: Is the use of the city’s property for piers, docks, wharfs or landing places for passenger and freight carriers a public use of said property ?

It is conceded that if exercised by the people for the benefit of all the people, .it would be a public use. Indeed, if only pleasure crafts were permitted to land, it might be termed a park use.

Is it lawful, however, for the city to lease or grant to the navigation companies the right to construct, maintain and use the pier with buildings and. appurtenances necessary to its ose as a landing place for the passenger and freight carriers of .the defendant companies only?

One objection to it raised by counsel is that the navigation companies have no power of eminent domain. A very slight inquiry into the nature of the business carried on by the navigation companies removes this objection.

Like the railroads, the navigation companies serve the public, the one on the land and the other on the water. Their business in other respects is identical.

For the use and convenience of the public they require a wharf and proper buildings as much as the railroads require a de'pot; nay more, they cannot deliver passengers at all, without a fixed landing place, while a railroad train can stop at any place where the track runs, whether there is a depot there, or not. There is more than a public interest in the steamboat’s landing place; there is a public use of it.

It would seem, therefore, that there is no good reason why navigation companies should not be directly granted the right of eminent domain, to the end that they may better serve the public by providing proper and convenient landing-places, landing-places proper and convenient for the people, as Mr. Moon said of the depot.

The legislature appears to have authorized that 'such landing places be first located and acquired by the city, and then leased or granted to navigation companies. If we are right in our conclusion that a public use is thus subserved, there can be no invalidity in the law because the city is given this oversight over the choice of location for such landing places. There appears to be a good reason for the exercise by the legislature of its discretion in thus indirectly granting to navigation companies what it has a right to, but has neglected to grant them directly.

Such being the ease, as was said of the depot proposition, there was no fraud or indirection in the passage of the ordinance to appropriate the reversioners’ rights for park purposes, growing out of the intention in the minds of the eouneilmen to lease the pier to the navigation companies.

'Having examined, all objections to the appropriation proceedings, for the reasons stated, the petitions praying that they be enjoined are dismissed.

It does not follow, however, that the lease already entered into is valid. The act of May 10, 1910, itself says: “this section shall not be construed to authorize the taking of reversionary or other property rights without such compensation and proceedings as are authorized by law.”

We interpret this as meaning that the lease cannot be entered into until the reversionary interests have been condemned.

Without reciting the terms of the lease, it is sufficient to say that it grants to the navigation companies the full and exclusive use. of the pier, with the right to construct thereon a passenger station, ticket office, and freight warehouses. The lease is for a term of forty years, revocable, it is true, on terms, and grants and. provides certain railroad switch rights over the made land which, with the pier, we have found belong to the city only in easement, the underlying right belonging to the reversioners. This is placing an increased burden upon the property rights of the reversioners. It cannot be placed there, under the constitution, until they are first compensated in money therefor.

The prayer of the petition of thfe reversioners against the lease is granted.

So in the taxpayer’s suit, seeking an injunction against the lease. The city not owning the premises in fee, cannot lease or grant the entire estate therein to another, which it is seeking to do. To sustain the attempt to do so, would not only involve the city in needless complications, but probably result in pecuniary loss to the city. Nobody would give the full value for such a title. To permit this lease to stand would be to permit an abuse of corporate powers.

For this reason the defendants are enjoined from carrying out the terms of the lease in question.

After the city has acquired the underlying rights, this judgment will not interfere with any valid lease thereafter enured into.

Judgment in the several cases will be entered a's indicated.

Marvin and Henry, JJ., concur.


author: FERNEDING, J.

text:
    ADOPTION — WILLS.
    [Greene (2nd) Circuit Court,
    1912.]
    Dustin, Allread and Ferneding, JJ.
    Charles H. Moon, Admr. v. Jennie Harness et al.
    1. Devise Making Granddaughters Equal Heirs with Children of Testatrix is Dispositive.
    A devise making “my two granddaughters,” naming them, “each equal heirs with my own children” is dispositive and evidences an intention of testatrix to devise her property in equal shares to such grandchildren and her children.
    [Syllabus approved by the court.]
    Appeal from common pleas court.

      Manus Shoup. for plaintiff:
    Cited and commented upon by the following authorities: Williamson, In re, 6 Dec. 505 (5 N. P. 1) ; Crane v. Doty, 1 Ohio St. 282; Page, Wills Sees. 2, 45, 48; Coffman v. Coffman, 85 Ya. 459 [8 S. E. Rep. 672; 2 L. R. A. 848; 17 Am. St. Rep. 69] ; 1 Rockel, Sec. 1013; Baker v. Baker, 51 Ohio St. 222 [37 N. E. Rep. 125] ; Mathews v. Krisher, 59 Ohio St. 562 [53 N. E. Rep. 52] ; Bane v. Wick, 14 Ohio St. 508; Gibson y. McNeely, 11 Ohio St. 152; 2 Jarman, Wills 741; Needles v. Needles, 7 Ohio St. 445 [70 Am. Dee. 85]; Gano v. Fisk, 43 Ohio St. 469 [3 N. E. Rep. 532; 54 Am. Rep. 819]; Phipps v. Hope, 16 Ohio St. 586; Carter v. Beddish, 32 Ohio St. 12; Beinhard v. Bein

      hard, 15 Dec. 741 (3 N. S. 280) ; Remsen, Wills 343; Cotton v. Cotton, 127 U. S. 310 [8- Sup. Ct. Rep. 1164; 32 L. Ed. 138] ; Mader v. Apple, 18 Dec. 801 (6 N. S. 592) ; Sears v. Sears, 77 Ohio St. 104 [82 N. E. Rep. 1067; 17 L. R. A. (N. S.) 353] ; Townsend v. Townsend, 25 Ohio St. 477 [1 N. E. Rep. 594]; McEelvey v. McEelvey, 43 Ohio St. 217 [1 N. E. Rep. 594]; Young, In re, 123 Oal. 338 [55 Pac. Rep. 1011] ; Sturgis v. Work, 122 Ind. 134 [22 N. E. Rep. 996; 17 Am. St. Rep. 349]; Burke v. Lee, 76 Ya. 386; Bailey v. Bailey, 59 Mass. (5 Cush.) 245; Coon v. DeMoore, 25 O. C. C. 776 (2 N. S. 444); Stewart, In re, 147 Pa. St. 383 [23 Atl. Rep. 599] ; Wilkins v. Allen, 59 U. S. (18 How.) 385 [15 L. Ed. 396]; Walker v. Parker, 38 U. S. (13 Pet.) 166 [10 L. Ed. 109] ; Pendleton v. Larrabee, 62 Conn. 393; Bill v. Payne, 62 Conn. 140; Downing v. Bane, 24 Ga. 372; Wilder v. Holland, 102 Ga. 44 [29 S. E. Rep. 134] ; Andrews v. Harron, 59 Kan. 771 [51 Pac. Rep. 885] ; Howard v. Peace Society. 49 Me. 288; Mullarky y. Sullivan, 136 N. Y. 227 [32 , N. E. Rep. 762}; McIntyre v. Ramsey, 23 Pa. St. 317; Hoover v. Gregory, 18 Tenn. (10 Yerg.) 444; Wootion v. Redd, 53 Ya. (12 Gratt) 196; Bell, In re, 147 Pa. St. 389 [23 Atl. Rep. 577] ; Barnilz v. Casey, 11 U. S. 454 [3 L. Ed. 403] ; Davis v. Davis, 62 Ohio St. 411 [57 N. E. Rep. 317; 78 Am. St, Rep. 725] ; Geery v. SkeldAng, 62 Conn. 499 [27 Atl. Rep. 77]; Fahnestock, In re, 147 Pa. St. 327 [23 Atl. Rep. 573]; Linlon v. Laycock, 33 Ohio St. 129; Brush v. Ware, 40 U. S. (15 Pet.) 93 [10 L. Ed. 672] ; Denn ex Dem v. Gaskin, 2 Cowper 329.

      Wiliam S. Howard, for appellants:
    Cited and commented upon by the following authorities: Page, Wills Secs. 43, 44, 45, 48, 49; Smith v. Bell, 31 U. S. (6 Pet.) 68 L8 L. Ed. 322] ; Townsend v. Townsend, 25 Ohio St. 477; King v. Beck, 15 Ohio 561; Woodruff v. Woodruff, 13-23 O. C. C. 408 (3 N. S. 616) ; American Tract Soc. v. AUuater, 30 Ohio St.. 77 [27 Am. Rep. 422]; Gates v. Pond, 5 Circ. Dec. 297; Jones v. Lloyd, 33 Ohio St. 572; Stevenson v. Evans, 10 Ohio St. 310; Carter v. Reddish, 32 Ohio St. 1; Bane v. Wick, 19 Ohio 328; Williamson, In re, 8 Dec. 47 (6 N. P. 79); Robi~

      son v. Orphan Asylum, 123 TJ. S. 702 [8 Sup. Ct. Rep. 327; 31 L. Ed. 293]; Metcalf v. Framingham Parish, 128 Mass. 370; Colton v. Colton, 127 U. S. 309 [8 Sup. Ct. Rep. 1164; 32 L. Ed. 138] ; Shaw v. Hoard, 18 Ohio St. 277; Tilley v. Collyer, 3 Keg. 589; 2 Jarman, "Wills 109; Crane v. Doty, 1 Ohio St. 279; Bane v. Wich, 14 Ohio St. 508; McDonald, hi re, 4 Dee. 396 [2 N. P. 232].
   FERNEDING, J.

(Orally.)

The question for the consideration of the court in this ease is the construction of the last will and testament of Clara Moon, deceased, particularly item two thereof which reads as follows:

!‘I hereby make my two granddaughters, Lulu Stewart and Ella Breakfield, each equal heirs with my own children. ’ ’

In the will, which was duly probated, one Frank Stewart was named as executor, but he declined to serve, and the court thereupon appointed Charles Moon, the plaintiff, as the administrator with the will annexed, and it is he, as said administrator, wrho brings this action under authority of Gen. Code 10587, to have said will construed. Under provisions of Gen. Code 10503, a person of full age, of sound mind and memory, and not under restraint, who has property or an interest therein, may give and bequeath it by last will and testament lawfully executed.

Gen. Code 8598, provides the method by which a person can designate an heir at law, and is as follows:

“A person of sound mind and memory may appear before the probate judge of his county, and in the presence of such judge and two disinterested persons of his or her acquaintance, file a written declaration, subscribed by him, which must be attested by such persons, declaring that, as his or her free and voluntary act, he or she did designate and appoint another, naming and stating the place of residence of such persons specifically, to stand toward him in the relation of an heir at lawr in the event of his or her death. If satisfied that such declarant is of sound mind and memory, and free from restraint, the judge thereupon shall enter that fact upon his journal, and make a complete record of such proceedings. Thenceforward the person thus designated will stand in the same relation, for all purposes, to such declarant as he or she could, if a child born in lawful wedlock. The rules of inheritance will be the same, between him and the relations by blood of the declarant, as if so bom; and a certified copy of such record will be prima facie evidence of the fact stated therein, and conclusive evidence, unless impeached for actual fraud, or undue influence.”

It is the contention of the defendants, the appellees,

First, that the will in designating Lulu Stewart and Ella Breakfield as “equal heirs with my own children,” was not in compliance with the foregoing statute quoted, which defines the procedure necessary for'such adoption, and, therefore, without avail.

Second, that said will not being dispositive in character as to said grandchildren, they are denied participation in the estate.

As to the first, we hold to the view it is not necessary to formally adopt under the statute to constitute an heir. One may designate by will who shall receive his property as by right of heirship.

As to the second, we think the will is dispositive and that • the manifest intention of the testatrix is to make her two grandchildren equal heirs with her own children in the distribution of the estate.

The court below in deciding the case seemed to rely largely upon the case of Crane v. Doty, 1 Ohio St. 279.

This ease holds that mere words of exclusion are not sufficient to direct the disposition of other persons not included. The present will, in our opinion, goes farther than the case of Crane v. Doty, supra, and shows an intention to dispose of the property to the persons named.

We are not without authority in holding this will to be dispositive. In the case, Williamson, In re, 8 Dec. 47, 48 (6 N. P. 79), the paper which was presented for probate was as follows:

“I, the undersigned, George H. Williamson, citizen of the United States of America and of the state of Ohio, legally
domiciled in the city of Cincinnati, Ohio, hut sojourning at present in Paris, France, 182 Boulevard Saint Germain, for^ reasons of health, sick in body but of sound mind, at the moment of appearing before God, do solemnly declare that I have always intended to return to my country and that the bad state of my health has prevented me from doing so. I declare that I am still a citizen of the state of Ohio and subject to its laws. I further solemnly declare, that the two persons who live, and have always lived* with me and with their mother, under the names of Georgette and Henriette Williamson, are my ligitimate daughters, living with me at 182 Boulevard, Saint Germain, Paris. I declare further that I expressly revoke all testamentary dispositions that I have made up to this day.
In testimony whereof I have signed and sealed these presents this fourth day of December, 1896.”

This instrument was properly signed and witnessed according to law, and it was held in the lower court, in Williamson, In re, 6 Dec. 505 (5 N. P. 1), not to be a paper of a testamentary character. The common pleas court held, however, that it was, and even if they were in dctabt about that matter, that being & paper properly executed, it should have been admitted to probate.

In the case of Benchley v. Lynn, 2 Rob. Ecc. 441, the language of the document in question was as follows:

“ Whereas I am desirous of revoking and making void my said will and disposition aforesaid, and to die intestate in order that all my property, both real and personal may go to and devolve upon my heirs or next of kin,
Now, Therefore, I, the said Elizabeth Lynn, do by this instrument in writing revoke, annul and make void my said will in hoto, so that I may die intestate, both as to my real and personal estate. It was held that this instrument is not merely revocatory. It is dispositive as well as revocatory. I consider it to contain a bequest of the property and to the next of kin; it would have defeated any limitation to other persons, if such had been appointed by Mrs. Minnett’s will. Undoubtedly Mrs. Benchley takes the property under this paper as a legatee and must pay duty as a legatee; I can not see how she could possibly take the oath as in case of intestacy. * * * Intestacy can only arise when a person dies without legally bequeathing his property, that is, without a will. If a man by will declares he dies intestate and that his property shall go in case of intestacy, such paper does not constitute an intestacy, but a bequest of the property to personae designatae designated by the statute as it might be by any other description. The property in the present instance goes not in virkue of the statute, but in virtue of the will, exactly as if the ultimate limitation in Mrs. Minnett’s will had been to A B and not to the next of kin. That the property would go by the statute in the same direction as by the will, can not divest it of the character of being property bequeathed by will.”

In the case of Bailey v. Bailey, 59 Mass. (5 Cush.) 245, we find the following:

“The term ‘will’ under the statute of 1843, Chap. 92, including every kind of testamentary act taking effect from the mind of the testator and manifested by an instrumént in writing. ’ ’

An inhabitant of this state while in the city of New York on a visit, being sick and in apprehension of death, executed an instrument in the presence of two witnesses, who attested it at his request, in the following terms:

‘It is my wish that the will that I made be destroyed and my estate settled according to law.’

Before signing his name thereto, the paper was read aloud to the testator and he was asked if it would answer, to which he replied that it would. Held, That this instrument was executed in the manner and with the formalities prescribed by law to admit it to probate in the state of New York, as a testamentary instrument or codicil, and that, therefore, under the statute of 1843, Chap. 92, Par. 1, it might be proved, recorded and proceeded in as such in this state.”'

It is held in the case of Townsend v. Townsend, 25 Ohio St. 477, in the first, second, third and fourth syllabi, as follows:

1. “In the construction of a will, the sole purpose of the court should be to. ascertain and carry out the intention of the testator.
2. “Such intention must be ascertained from the words contained in the will.
3. “The words contained in the will, if technical, must be taken in their technical sense, and if not technical, in their ordinary sense, unless it appear from the context that they were used by the testator in some secondary sense.
4. “All the parts of the will must be construed together, and effect, if possible, given to every word contained in it.”

In the case at bar we are of the opinion that the will is dispositive. It shows an intention on the part of the testatrix that her property should go equally to the persons referred to as devisees therein.

Decree accordingly.

Dustin and Allread, JJ., concur.