text:
    CARRIERS — STREET RAILWAYS
    [Cuyahoga (8th) Circuit Court,
    March 15, 1904.]
    Hale, Marvin and Winch, JJ.
    Elle Schroeder v. Cleveland Electric Ry.
    1. Carrier Bound by Known Impending Intervening and Independent Danger to Exercise Care Toward Passenger.
    A carrier of passengers is not liable for the act of an intervening independent agency; but when there is a known impending danger from a source for which the carrier is not responsible, then the law imposes upon the carrier a degree of care in respect to such impending danger; however, the degree of care in such case depends upon the conditions and circumstances of the particular instance, varying with those conditions, and is not that absolute degree of care which a carrier owes to its passengers under ordinary conditions.
    2. Care Exercised by Carrier to Passenger During Strike.
    The law requires of a carrier of passengers operating its care while a strike is in progress and while known dangers exist, the highest degree of care practicable for the safety of its passengers in view of the existing and known conditions, consistent with the practical operation of and management of its cars.
    3. Carrier not Liable for Injuries from Explosive Placed on Track During Strike.
    When passengers upon a street car are injured by the explosion of an explosive placed on the tracks by some miscreant, at a time when a strike of the employes of the street-railway company is in progress and after numerous other similar explosions had occurred, the company is not liable unless the conditions existing at the time were of such a nature that it had reason to expect damage to its cars and injury to its passengers from explosives, and therefore should have adopted extraordinary precautions to avoid such damages and injuries and failed so to do.
    Error.
   HALE, J.

The defendant is a corporation owning and operating a street railroad in the city of Cleveland.

On August 30, 1899, the plaintiff, while a passenger upon the defendant’s road, was most seriously injured by an explosion of some kind, which nearly demolished the car on which she was riding. The exact nature of the explosion the plaintiff alleges she is unable to state, but does allege that her injuries were caused by the negligence of the company and without any fault upon her part. She alleges that the company was negligent in not providing for a proper inspection of the cars, machinery, dynamos and apparatus in use by it; that the company was also negligent in not providing a proper inspection of the tracks upon which the ears were run; that the servants and employes of the company were negligent in not keeping a proper lookout for obstructions upon the track; further, that the company was negligent in not notifying the plaintiff of the dangers incident upon the riding upon the ear at the time, also negligent in the appointment of incompetent servants, particularly the motorman in charge of the car upon which the plaintiff was riding; that the motorman was negligent in the management of its car; that he neglected to apply the brake at the proper time, of all of which the plaintiff had no knowledge. These allegations of negligence, considered independent of the peculiar conditions existing at the time, as further alleged in the petition, were in no sense sustained by the evidence.

Following these allegations, it is alleged that in the month of July, 1899, difference arose between the company and its employes, resulting in a strike by the employes, causing troubles and dangers incident to the same.

It is further averred in the petition that several other explosions had occurred in other parts of the city upon the defendant’s track prior to the one which caused the injuries to the plaintiff, and that by reason of said explosions prior to the date of the plaintiff’s injuries the defendant was aware and well knew that attempts were being made to place explosives of some kind or description, unknown to this plaintiff, upon the tracks of the defendant; that, notwithstanding this knowledge which the defendant had, it still continued to run and operate its cars and thereby invited the public to ride on said cars; that it took no measures or precautions to prevent such explosions or concussions; that it failed to patrol its track on which'it ran its cars, either by persons on horseback or by men on bicycles or otherwise, which it might easily have done; that it negligently failed to equip its cars in front of the forward wheels with brushes or other appliances which might have been placed thereon; that it failed utterly to take any precautions to discover whether explosives were placed upon its tracks or not; that it adopted no means to protect its track and protect the public who were traveling in its ears by direct and implied invitation; that tbe headlights upon its cars were placed upon the top of the ear, and that the headlight upon the car in which the plaintiff was riding at the time she was injured was upon the top of the car; that said headlight was insufficiently furnished with an illuminant or light that would enable the motorman, who had charge of the ear upon which this plaintiff was riding, to see ahead far enough safely to stop the ear in case he saw anything upon the track, and that the defendant was guilty of negligence and careless in failing to supply or equip its said car with a proper headlight; and such a headlight as would enable the motorman operating the car to see whether any obstruction had been placed upon the track or not, the company well knowing, as this plaintiff alleges it did, that obstructions were being placed upon its tracks at that time. ,

‘ ‘ The plaintiff further says that the defendant employed no persons on horses or on wheels, or on foot, to patrol said tracks and see that the same were free from obstructions, that is, the tracks on Wilson avenue; that it was guilty of recklessness, carelessness and negligence in not so doing, well knowing that obstructions and explosives were being placed on its tracks at that time, especially on said Wilson avenue; that instead of protecting its tracks or taking any measures to prevent explosion.under its cars on said Wilson avenue, it published cards and interviews in the newspapers inviting the public to ride upon its cars and did say to the public that it was safe for the public so to do; that before the grievances hereinbefore set forth were committed, the president of the said defendant corporation, speaking for the defendant company, told the state board of arbitration, which bad met in the city of Cleveland for the purpose of adjusting the difference between the defendant and its former employes, that ‘The company fully appreciating the sincerity of your desire to bring about a readjustment with former employes, begs to say that the men who went out on Monday last, July 18, 1899, are not in the company’s employ, and there is nothing to negotiate about or arbitrate.’ That is thereby carelessly and negligently assumed that the persons it had'then in its employ were fully competent to operate, manage and run cars, and by said assumption publicly made, informed the public that the men who had been hired to take the place of its former employes were competent to care for, manage and run its ears, although the defendant knew, or ought to have known the facts to be otherwise.
“Plaintiff further says that the agents and servants of the defendant on said occasion were guilty of carelessness and negligence in this, that just prior to the happening of said accident said car was being negligently and carelessly run and operated at a high and dangerous rate of speed, and at such a rate of speed as rendered a proper and careful lookout by the motorman in charge of said car difficult; that is, at such a rate of speed as partially prevented a careful and proper lookout upon the tracks in front of said car; and that said agents and servants of the defendant in the management, conduct and control of said car and in the operation of the same, were guilty of carelessness and negligence upon said occasion and just prior thereto.”

These allegations of negligence last quoted are connected with the allegations of the dangerous condition existing at the time, and the alleged acts of commission and omission on the part of the company are negligent acts, if at all, because of the alleged condition then existing in the city.

Issue was taken upon these allegations of the petition by answer.

Much evidence was produced upon the trial tending to sustain the claim of the respective parties. The trial consumed four weeks of time. There was no direct evidence of the size, nature or character of the explosives; much time was consumed in the examination of witnesses called as experts to establish such fact.

Numerous errors of the trial court are insisted upon as a ground for the reversal of this judgment. It will be noted that the .explosive which caused these injuries was unlawfully placed upon the track by some miscreant for whose act the company was not responsible. The company, however, was charged with the duty of protecting its passengers from the dangers resulting from such act. It was not responsible for placing the explosive upon the track. Respecting this part of the case, the trial court said to the jury:

“As I have said, there had been a strike; the employes of the company had gone off; others had taken their places. There had been some explosions of some kind of explosive on the tracks of this company; they had been numerous; I think thirty or forty, the evidence tends to show; a few of them had been dangerous, but had evidently been intended simply to frighten people and prevent them from traveling on the road. It is claimed that the company had knowledge of this condition of things. They were operating their road impliedly inviting the public to travel on it; that persons were traveling upon it; they were operating their road carrying passengers, and that the company did not take proper measures to protect its passengers from this impending danger for which they were not, in the first instance, responsible. Now, that is the nature of this plaintiff’s claims; that is the nature of this case.

Again, in the charge, he says:

“Did the company have reason on August 30, 1899, to expect danger to its passengers on "Wilson avenue, from explosives on its tracks 1 If it did not have reason to expect such danger at such time, there can be no recovery in this case. The burden is upon the plaintiff to prove by a preponderance of the evidence, that the company did then have reason to expect such danger, and if, upon consideration of all the evidence bearing upon this question, you do not find that it has been proved that the company .had reason, at that time, to expect such danger, that will end your consideration of the case, and you should return a verdict for the defendant.”

Again, it is stated:

“There is evidence tending to show that at this time about the full number of cars were being operated, and the public confidence had been restored to such degree that travel had increased to such extent as the evidence shows it had increased.
“Now, in view of these considerations; in the light of whatever else the evidence shows, bearing upon this question in view of whatever might, in the nature of the situation, reasonably be expected or not expected; what should this company have expected as to a recurrence of the dangerous explosions ?
1 ‘ If, upon full consideration of this question, you do not find it proved that the company had reason, at that time, to expect danger to its passengers from explosives placed on its tracks, you should return a verdict for the defendant, without further consideration.
“If, on the contrary, you find it proved that the company had reason at that time to expect such danger to its passengers, then you will inquire further, and determine whether it has been proved that the company was negligent in any of the respects charged in the petition.”

The jury were thus instructed that the alleged negligent acts were not such unless the conditions existing at the time were of such a nature that the company had reason to expect damage to its cars and injury to its passengers from explosives, and therefore should have adopted extraordinary precautions to avoid such damages and injuries. The omission to employ by the company the agencies which it is alleged they omitted to employ became negligence only because of the fact of the dangers incident to the strike which the company was bound to guard against. If it be true that the conditions growing out of the strike were such that the company had reason to anticipate danger from explosives, then such omission may have been negligence on its part, but if the omission to employ such agencies can be characterized as negligence only when it is found that the conditions were such that the company had reason to anticipate danger from explosives, or by the exercise of due care should be charged with knowledge of such danger, then the court correctly charged the jury. We are of the opinion that a proper construction of the pleadings and proper application of the evidence to the issues fully justifies such charge and that there was no error in it.

Again, it is insisted that the jury were mislead by the charge of the court upon the subject of the degree of care which the defendant was bound to exercise toward its passengers, and attention is called to some expressions in the charge giving some support to this claim. The court said, among other things, upon this subject:

‘ ‘ The law imposes upon the carrier of passengers a high degree of care for their safety, the highest practicable degree of care — I am now speaking of passengers ordinarily — not in this particular instance — as to acts or omission of things under its control. A common carrier of passengers is required, by the law, to exercise the utmost care and diligence for their safety, and is responsible for injury resulting from the slightest neglect of such care. There is more or less danger from any means of rapid transit, however careful the carrier may be, and whatever risk there is, when the carrier has been as careful as he ought to be, the passenger assumes.”

It is insisted by counsel for the plaintiff that here the jury were given to understand that the rule laid down applicable to the duties of common carriers did not apply to the case then on trial; but when the court charged the jury upon the responsibility of the defendant in this particular case, the true rule, we think, was stated. The court said:

“A carrier or, passenger is not liable for the act of an intervening independent agency. But where there is a known impending danger from a source for which the carrier is not responsible, then the law imposes upon the carrier a degree of care in respect to such impending danger; but the degree of care in such case depends upon the condition and circumstances of the particular instance, varying with those conditions, and is not that absolute degree of care which I have stated the carrier owes to its passengers under ordinary conditions. ’ ’

Again the court say:

“On August 30, 1899, this defendant had the right, and it owed the duty to the public to operate its several lines of street railway, and to carry such persons as chose to ride in its cars. It was not obliged, and it is not claimed here that it was obliged to cease to operate its road. This being so, you can plainly see that the degree of care which it could be required to exercise for the safety of its passengers must be consistent with the reasonable operation of its road; and this is the requirement of the law. Under the circumstances of this case, the law required of this defendant company the exercise of the highest degree of care practicable for the safety of its passengers, in view of the existing and known conditions, consistent with the practical operation and management of its street railway system. Failure to do this would be negligence on its part.”

More is said upon this subject in other parts of the charge and in comments upon the requests made, but we think the above fairly states the law applicable to this case.

Again, complaint is made that the trial court took from the consideration of the jury the alleged negligence of the motorman in failing to keep a proper lookout. We have carefully read the record, and fail to find any evidence whatever tending to support said allegation. The same may be said of the failure of the motorman to stop the car by proper application of the brakes. The brakes were disabled by the effect of the concussion or explosion, and all was done that could be done after the explosion took place. And, generally, it may be said of the allegations of negligence, relied upon, that unless the company had reason to apprehend danger from explosions, no duty was imposed upon it to adopt extraordinary measures to guard against the danger from such explosions. In such case, a failure to patrol its tracks, or to equip its cars in front of the forward wheels with brushes to remove the explosives from the track, or to provide more efficient headlights than were in or4inary use, or to employ extraordinary vigilance to discover such explosives upon the track— its failure to do so in any of these respects would not be negligence on the part of the company unless it was found that it had reason to apprehend such dangers.

Again, it is said the plaintiff was not awarded a fair trial by reason of certain rulings of the court in the admission and exclusion of evidence, and comments made in the presence of the jury during the trial. The most serious objection made under this complaint 'is of the rulings and comment of the court as appears on page 385, and following of the record. The plaintiff sought to show by a witness the speed at which the car was going at the time of the accident. An objection was interposed by the defendant to the testimony offered. Under a recent holding of the circuit court sitting in Licking county, approved by the Supreme Court, this testimony was competent. The trial court commented very freely upon this decision and, among other things, said:

“I know the holding of the circuit court of Licking county is not the law, if I know anything about such things, and yet here is the affirmance of that judgment by the Supreme Court. If you want to take the chance, this witness may answer the * question.”

Plaintiff’s counsel then said: “We take the chances.”- The law upon this particular subject had been settled by the decision of the highest court of the state and, therefore, was the law of the forum in which this case was tried; and the evidence should either have been excluded, or permitted to go to the jury without the condemnation of the trial court.

Again, it is said the charge of the court to the jury was misleading and, therefore, erroneous. A considerable portion of the charge, it is.true, deals with general propositions of law applicable to this class of eases, and it is possible that the jury would have been better aided in their consideration of the evidence of the case by a shorter and less learned charge. The case was a peculiar one and so out of the ordinary as to present many difficulties and to require careful discrimination of the trial court. We believe tbat tbe true theory of tbe ease and tbe ground of responsibility of tbe defendant company to tbe plaintiff was adopted by tbe trial court and tbat tbat theory was so enforced upon tbe jury by tbe trial court tbat they could not have misunderstood tbe charge. We conclude that tbe correct result was reached; that the judgment is tbe only one tbat was authorized by tbe evidence'and tbe law applicable to tbe facts, and tbat there is no error apparent upon this record for which tbe judgment should be reversed.

Tbe judgment of tbe court of common pleas is affirmed.

Winch, J., concurs.

Marvin, J., dissents.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    BUILDINGS — MUNICIPAL CORPORATIONS — OFFICERS
    [Cuyahoga (8th) Circuit Court,
    May 16, 1904.]
    Hale, Marvin and Winch, JJ.
    John G. Bruggeman v. Cleveland (City).
    1. Acts of De Facto Officers Valid.
    The acts of a de facto officer acting under a law, which at the time had not been declared unconstitutional, are valid.
    2. Power of Municipalities to Raze Dangerous Buildings.
    The state in the exercise of its police power may delegate to municipalities the right to raze buildings which become dangerous to life or property.

      George A. Groot, for plaintiff in error.

      N. D. Baker and C. J. Estep, for defendant in error.
   WINCH, J.

Tbe petition in this case alleges tbat Mr. Bruggeman was tbe owner of a certain parcel of land improved with a frame building; tbat on August 14,1900, tbe city of Cleveland, through its agents, officers and servants, without any right whatever, entered upon said premises and tore down and destroyed said building, and be prays judgment for $1,000.

Tbe answer admits tbe plaintiff’s ownership and says tbat R. J. Harks was, for more than a year preceding August 14, 1900, duly appointed, authorized and acting inspector of buildings in tbe city of Cleveland; tbat it was part of tbe duty of Harks to inspect the construction of new buildings, and to require old structures within the city to be maintained in safe and proper condition or torn down. It alleges that on August 14, the timbers of the building upon plaintiff’s premises were rotten; that said building was liable to collapse at any time, and was so unsafe as to endanger life; that prior to that date, on March 17, 1900, and at other times, the said Harks, as building inspector, served upon the plaintiff written notice requiring him to tear down said building, for the reason that it was dangerous and unsafe; that the plaintiff failed and refused to comply with said notice; that the public safety required immediate action, and that, therefore, on August 14, 1900, said Harks caused said unsafe and dangerous structure to be torn down.

The reply filed by the plaintiff admits that Harks was occupying a position called “Inspector of Buildings” in the city of Cleveland, but denies that he had any power or authority to tear down buildings, and asserts that whatever he did in that behalf was done in violation of the rights of the plaintiff, and without authority of law. The reply further asserts that the defendant, the city of Cleveland, had no right to destroy the plaintiff’s building, whatever its condition was, for the reason that the law and ordinance under which the plaintiff destroyed said property, and which purported to confer authority upon the defendant to destroy and tear down property in said city, are unconstitutional and void.

The reply also contains the following:

“He denies all and singular the statements set forth in the defendant’s answer inconsistent with the statements set forth in plaintiff’s petition.”

At the trial of the case an objection was made to the introduction of any testimony under the pleadings. This objection was sustained and a verdict for defendant directed. Such action of the trial court amounted to granting judgment on the pleadings, and a review of this, case requires only an examination of the pleadings.

The petition, we think, states a cause of action.

Were there no reply to the answer, the question whether it sets forth a good defense would be one of law, to be determined by the court; but material allegations of fact in the answer are controverted by the reply, unless the judgment of the city as to the advisability of tearing down the building is not reviewable.

It is claimed by counsel for defendant in error that this reply contains only conclusions of law; that it is argumentative and does not squarely deny the allegations of the answer that the timbers of plaintiff’s building were rotten, that the building was unsafe and liable to collapse, that plaintiff was notified to take the building down, failed to comply and that the public safety required immediate action.

There is much merit in this criticism of the reply, but applying the rule that pleadings are to be liberally construed in favor of the pleader — stretching that rule, perhaps, to its utmost — we are dispdsed to say that the allegations of the petition that the city destroyed the building “without any right whatever,” taken in connection with the denial in the reply of “all and singular the statements set forth in the defendant’s answer inconsistent with the statements set forth in the plaintiff’s petition,” together were intended as a denial of the facts pleaded in the answer to which attention has been drawn.

So holding, it remains to determine whether the city acted under authority of law and whether the judgment of the city as to the facts and its discretion in the matter are reviewable.

The action complained of occurred on August 14, 1900, prior to the adjudication of the infirmity in the so-called “federal plan law” of the city of Cleveland. At that time Sec. 1545, sub-divisions 49 to 53, were in full force and effect. By Sec. 1545-53 R. S. it is provided that the director of fire service shall appoint an inspector of buildings who shall be an architect or builder, and who shall have all the power, perform all the duties and receive the same salary prescribed for the inspector of buildings by an act passed April 15, 1888, as amended April 11, 1890, entitled “An act to regulate the construction of buildings within any city of the first class and second grade,” etc. Section 1545-49 gave to the fire department of the city of Cleveland the control and management of the inspection of buildings. At that time there likewise existed upon the statute books the so-called building code for the city of Cleveland, See. 2575, 1 to 52, being the same law as is referred to in Sec. 1545-53, where the powers of the building inspector are set forth. Among' the powers and duties prescribed by this building code, in Section 2575-48, is the following:

‘ ‘ The owner or other party having an interest in any building, staging or other structure or any thing attached to or connected with a building or other structure which shall be unsafe, so as to endanger life, shall immediately, upon notice received from the inspector, cause the same to be made safe and secure, or taken down, and where the public safety requires immediate action, the inspector may enter upon the premises with such assistants as may be necessary, and cause the said structure to be secured or taken down without delay, and the passersby to be protected at the expense of such owner or party interested. ’ ’

Among the general powers of municipalities at this time were those conferred by Sec. 1692 R. S., (Sec. 3615 G. C. et seq.) 1 of which provides that municipalities shall have power, and council may provide by ordinance for the exercise and enforcement thereof “to preserve peace and good order, and protect the property of the municipal corporation and its inhabitants.” Sub-section 17 includes, among the enumerated powers, the power to guard against injuries by fire; Sub-section 27, the power to regulate the erection of buildings, fences and other structures within the corporate limits; Sub-section 30, to organize and maintain a fire department, erect necessary buildings therefor, etc.

It is admitted by the pleadings that H. J. Harks was inspector o£ buildings in the city of Cleveland, and in destroying plaintiff’s building, acted in behalf of defendant.

All the statutes above referred to have since August 14, 1900, been repealed, and in their stead the Ohio Municipal Code has been enacted.

Plaintiff claims that the statutes above referred to are unconstitutional, being special legislation. Such is the case, but we hold that the acts of Harks in the premises were the acts of a de facto officer, acting under a law which had not at the time been declared unconstitutional, and that his official acts while so acting are valid. State v. Bingham, 7 Circ. Dec. 522 (14 R. 245); Heck v. the Findlay Window Glass Co., 8 Circ. Dec. 757 (16 R. 111); State v. Gardner, 54 Ohio St. 24 [42 N. E. 999; 31 L. R. A. 660].

It is further claimed by plaintiff that the law is in contravention of the constitutional provision that private property shall ever be held inviolate, and shall not be taken for public use without compensation therefor being first made in money.

"We think not; the statute is in exercise of the police power of the state. Upon this subject see Dillon, Municipal Corporations, Secs. 141, 379, 955; Evansville v. Miller, 146 Ind. 613 [45 N. E. 1054; 38 L. R. A., 161].

The above authorities dispose of the contention by plaintiff that the city had no authority to tear down his building no matter what its condition, but they all recognize the rule that if the public good did not require the act to be done — if the act was not apparently and reasonably necessary, the actors can not justify, and would be responsible.

We think the plaintiff attempted to raise the latter issue, i. e., that the public good did not require the tearing down of his building; that such tearing down was not apparently and reasonably necessary; and on this issue he should have been permitted to go to the jury.

For this reason it was error for the trial judge to sustain the defendant’s objection to the introduction of any evidence by the plaintiff and to direct a verdict for the defendant, and for said error the judgment is reversed.


author: HALE, J.

text:
    BENEFICIAL ASSOCIATIONS — WILLS
    [Cuyahoga (8th) Circuit Court,
    June 6, 1904.]
    Hale, Marvin and Winch, JJ.
    F. Dhonau, Jr., v. Susan Clare Striebinger et al.
    1. Step-Children may be Beneficiaries as “Members of Family.”
    When step-children, taken into the home at a tender age are reared as children of the step-father and after marriage one of them remains in the home of the step-father, they can be designated as beneficiaries of a member in a mutual benefit association, whose constitution requires that beneficiaries shall be members of the family or someone related to the member by blood.
    2. Designation by Will of Beneficiaries by Member of Benefit Association.

      The designation of the beneficiaries of a member of a mutual benefit association may be made by will so long'as those designated belong to the class from which they are to be selected.

      Albert Mendelson and McKeney '& Belville, for plaintiff in error.

      E. K. Wilcox and F. G. Friend, for defendants in error.
   HALE, J.

The issues tried and determined in the trial court relate to the disposition of the benefits of a deceased member of a benefit association.

In 1881, Robert Jaite became a member of the Ancient Order of United Workmen and continued a member of that order until his death, which occurred on January 2, 1900. He fulfilled all his obligations to the order while thus a member. In the certificate issued to him, his wife Elizabeth was named as the beneficiary. She died on the 2d day of December, 1899, just one month prior to the death of her husband. After the death of his wife, no other beneficiary was designated, unless such designation was made by him in his will, which was executed on the 2d day of December, 1899, just a few days before his death. The clause of the will which, it is claimed, made such designation reads as follows:

“Fifth. I give, devise and bequeath to Susan Clara Striebinger and Marie Van Camp my life insurance of $2,000 made payable to my wife, now deceased, each $1,000 and further, to Marie Van Camp my fire insurance business, and my household furniture shall be divided between said Susan Clara Striebinger and Marie Van Camp. My horse, buggy and tools I give to George Van Camp.”

The provision regarding the designation of the beneficiary in this order is contained in Sec. 46 of the constitution, and reads:

“Beneficiaries. — Each member shall designate the person or persons to whom the Beneficiary Fund due at his death shall be paid, who shall, in every instance, be one or more members of his family, or some one related to him by blood, or his affianced wife, who shall be dependent upon him.”

The object of the order, as expressed in its by-laws and constitution, is:

‘ ‘ To pledge the members to the payment of a stipulated sum to such beneficiaries as a deceased member may have designated, while living, under such restrictions and upon such conditions as the laws of the order may prescribe.”

There are several errors alleged for which it is claimed the judgment should be reversed, but chiefly three are relied on:

1. That the defendants in error, Mrs. Striebinger and Mrs. Van Camp, are not of the class which the member was authorized to designate as a beneficiary, and therefore their designation is entirely nugatory.

2. That the designation of a beneficiary could not be made by will, and is therefore inoperative.

3. That the will does not sufficiently designate in terms the defendants in error as the beneficiaries, and, further, that it does not so definitely designate the benefits under the term “insurance” that it should be operative.

Now, as to the first point, whether these parties belong to that class that might be designated: Mr. Jaite shortly before becoming a member of this order, was married to his wife, Eliza-_ beth, designated in the certificate. The wife at that time had two daughters, one three years of age and the other six, now Mrs. Striebinger and Mrs. Van Camp. They were taken into the family of Jaite and educated, clothed, fed and treated entirely and absolutely as his own children, he calling them his children and they calling him father. In 1893, -perhaps, one of the daughters was married, Mrs. Striebinger; later Mrs. Van Camp was married. Both of these stepdaughters have looked to their father’s home as their home, as children look to the old home after they have left. Later Mrs. Van Camp’s husband met with reverses and misfortune came upon that family. She and her husband were taken into the family of Mr. Jaite, provided for and looked after until his death. Some three years prior to his death they became absolutely members of his family and dependent upon him. Mrs. Striebinger, as I have said, has gone back and forth to the old homestead. Now under the circumstances of this particular case, we hold that these parties did come within the class that might have been designated by Mr. Jaite as the beneficiaries under the will.

■ It is said that this designation could not be made by will. Let it be borne in mind that this is a case in which the beneficiary has died and no other beneficiary named in her place. The rules of the order, See. 47, provide:

“If one or more of the beneficiaries shall die during the lifetime of the member, the surviving beneficiary or beneficiaries shall be entitled to the share of such decedent, equally, unless otherwise provided in the beneficiary certificate; and if all the beneficiaries shall die during the lifetime of the member, and he shall have made no other direction in his beneficiary certificate, the benefit shall be paid to his widow; if he leave no widow, then said benefit shall be paid, share and share alike, to his children; his grandchildren, living at the time of his death, to take the share to which their deceased parent would be entitled if living; if there be no children nor grandchildren of the deceased member living at the time of his death, then said benefit shall be paid to his mother if living, and if she be dead at the time of his death, then to his father if living, and should there be no one living at the death of the member entitled to said benefit under the provisions of See. 46, then the same shall revert to the beneficiary fund of the grand lodge.”

It will be borne in mind that this is a controversy between the benefciaries named and the grand lodge. No other beneficiary is disputing the claim; the benefits go to the grand lodge only, if there be no one under See. 46 entitled to its benefits. Now, this section that I have read named certain parties — the widow, children, grandchildren, the mother, the father — but there are others named in Sec. 46 who are entitled to these benefits before it goes to the grand lodge. How shall they be designated? It does not name them. The language of the section reads:

“Each member shall designate the person or persons to whom the beneficiary fund due at his death shall be paid, who shall, in every instance, be one or more members of his family, or some one related to him by blood. ’ ’

It may be his father, his mother, brother or sister are entitled to the benefits. It may be some of those specifically enumerated or otherwise. No designation is made in Sec. 47 as to the dependent party taking. We find there was neither widow, children, grandchildren, father or mother. The order says it may go to “one or more members of Ms family,” a dependent, and if there is any one under Sec. 46 who can take, then the grand lodge does not take it. Clearly in this case there was not the slightest excuse for this order refusing the payment to Mrs. Van Camp. She was a member of Mr. Jaite’s family; she was dependent upon him. Neither the constitution and by-laws of the order nor' the statutes designate any way in which the members shall designate the beneficiary as a member of his family, or as a dependent, and we are of opinion that it may be done by will.

The statute itself contemplates that it may not be done m the lifetime of the member. How shall it be done? Manifestly, only in the way it was done here. At all events, we hold that it was a sufficient designation.

Again, it is said that the language of the will is not a sufficient designation. Certainly it is clearly a designation of the parties. They are named by name, and they are the daughters of his wife, and there can be no doubt that he intended this benefit under the term “insurance.” He refers to the fact that his wife.was named as beneficiary, hence we hold that the designation by will could be made, and that designation is sufficient.

We reach the same conclusion that was reached by the trial court. We think this judgment was not only right but rests upon a good, solid, legal foundation. The judgment of the court of common pleas is affirmed.

Marvin and Winch, JJ., concur.


text:
    INSURANCE
    [Cuyahoga (8th) Circuit Court,
    December, 1903.]
    Hale, Marvin and Winch, JJ.
    Ohio Moulding Mfg. Co. v. Standard L. and A. Ins. Co.
    Defending Action Brought Against Insured, not a Waiver of Conditions in Policy.
    In an action against a casualty insurance company to recover the amount of a judgment for personal injuries secured against the holder of a policy by one of his employes, the fact that the insurance company defended the action in which the judgment was secured against the assured, does not amount to an estoppel, nor is it a waiver of conditions in the policy that it shall not cover loss from liability for any injuries caused by failure of the assured to comply with the requirements of any law respecting the safety of persons, nor to injuries resulting through the employment of a child.

      Smith & Taft, for plaintiff in error.

      Hoyt, Dustim & Kelley, for defendant in error.
   HALE, J.

On May 12, 1897, the defendant made and issued to the plaintiff, who was then engaged in the manufacture of mouldings, doors, sash and blinds, in the city of Cleveland, its policy of insurance , by the terms of which it insured the plaintiff against damages on account of any injuries to its employees caused by accident for twelve months from said date. A copy of the policy is attached to the petition and made a part thereof. The action was prosecuted by the plaintiff against the defendant in the court of common pleas to enforce the provisions of this policy.

The following facts appear from the record:

On October 13, 1897, during the life of the policy, Martin Uhas, an employ of the plaintiff, was injured while engaged in said employment. His injuries, were caused by accident within the terms of the policy. Immediate notice was given to the insurance company by the plaintiff of such injuries. Uhas claims that his injuries were caused by the negligence of the plaintiff, and brought an action against it to recover compensation for such injuries.

The defense in this action was conducted by the insurance company, as, by the terms of its policy, it was bound to do.

The action resulted in a judgment in favor of Uhas against the plaintiff, which, after a review and affirmance in the circuit court, the plaintiff paid. The total amount of the judgment and costs paid by plaintiff to Uhas was $756.56.

The plaintiff sought in this action to recover of the insurance company the amount of the judgment and costs so paid to Uhas, and all allegations are made in the petition necessary to entitle the plaintiff to a judgment for such sum.

The defendant denied any liability under this policy, and alleged that the policy contained these two clauses:

“1. This policy does not cover loss from liability for any injuries caused by the failure of tbe assured to comply with the requirements of any law or ordinance respecting the safety of persons.
“2. This policy does not cover loss from liability for injuries to any child employed contrary to law, nor to any child under fourteen years of age, nor does this policy cover any injury due wholly or in part to the employment of any such child.1 ’

It is then alleged that Uhas tvas employed by the plaintiff contrary to law, and reference is made to the act of April 8, 1890, wherein it is provided that no child under the age of sixteen years shall be employed by any person, firm or corporation in this state at employment where its life or limb is in danger, or its morals may be depraved by such employment.

It alleged further that Martin Uhas, at the time of his employment and of his injuries, was a child under sixteen years of age, and that the employment was of a dangerous character whereby his life and limbs were in danger, specifying that the employment was about a rapidly-moving circular rip saw.

The reply took issue with this defense, and alleged that the defendant waived all rights it had to such defense and is es-topped from asserting the same by the facts specifically set forth by said reply, the chief of which is that the defendant, with such knowledge as it had of the fact's of the case, by taking the burden of the defense of the original action, is estopped.

1. It is claimed that the court erred in the exclusion of evidence offered by the plaintiff in support of the claim made by it that the defendant had waived all rights to insist upon this defense. This evidence consisted mainly of conversations had between the attorney of the insurance company and Philip Decumbe, the general manager of the plaintiff company, and were to the effect that Mr. Wilcox, as attorney for the insurance company, had objected to the plaintiff making any settlement with Mr. Uhas. The policy provides that the assured “Shall not settle any claim except at his own costs, nor incur any expense, nor interfere with any negotiations for settlement in any legal proceeding without the consent of the company given in writing, but he may provide at the time of the accident such immediate surgical relief as is imperative.” In view of this provision of the policy the plaintiff’s testimony was wholly immaterial. If the insurance company did, by an authorized agent, object to any settlement made by the moulding company, it only did what it had a right to do under the terms of the policy, and such evidence would have no tendency in support of a waiver of the condition of the policy relied on by the insurance company. We think there was no error in any of the rulings upon the exclusion or admission of testimony.

It is claimed that the trial court erred in holding as a matter of law that under the evidence submitted on the trial of the case the insurance company had not waived its right to insist upon the defense made in its answer. We think the court correctly ruled upon this proposition. There was no evidence offered either by plaintiff or defendant upon which a finding of the jury in favor of such waiver could be sustained, unless the mere fact that the insurance company took charge of the defense in the original action against the plaintiff by Uhas was in law such waiver; but we hold that the mere fact that that defense was conducted by the insurance company as by the terms of the policy it was hound to do, was not and could not operate as a waiver of its rights under the policy. It would hardly be claimed, if the insurance company, without any knowledge whatever that the boy Uhas was under sixteen years of age at the time of his employment and injuries, conducted said defense and subsequently learned the facts as to the age of the boy, that it would be estopped from enforcing the provisions of this policy, or had in any way waived such .provisions. The most that can be said of the evidence in this case on behalf of the plaintiff is that Uhas, from the inception of his ease against the plaintiff, was claiming his age to be under sixteen years, but that the plaintiff was at all times insisting that he was more than sixteen years at the time of his employment and of his injuries. Statements to that effect were made to the attorney for the insurance company, and it can not rightfully be claimed that because the insurance company, under the assurance by the plaintiff that the boy was more than sixteen years of age at the time of his employment, entered upon and conducted said defense, it waived its right to insist upon the terms of the policy. It was the duty of the insurance company to conduct said defense. It had so contracted in the policy, and it could not be justified in disregarding its contract because Uhas or his guardian claimed him to be less than sixteen years of age, while the assured was insisting that he was of greater age.

The issue was fairly made by the pleadings, whether the employment of Uhas was in violation of the statute above quoted, and therefore any accident to him not within the terms of the policy. The court refused to submit this issue to the jury, but said to the jury that the employment of the boy, if under sixteen years of age, to work in the place he was injured was unlawful. In so charging the jury it is claimed that the court erred. It is true that a question of fact was raised by this issue, and it probably would have been better to have submitted that issue to the jury for determination, but, after a careful consideration of all the testimony bearing upon that issue it, is made certain that the jury must have found the employment to have been unlawful. Any other conclusion than that reached by the jury would not have been permitted to stand. We are, therefore, of opinion that this judgment should not be reversed for this alleged error.

There was some conflict in the evidence offered upon the trial as to the age of the boy at the time of his employment and injuries. That issue was properly submitted to the jury and there was a finding by the jury that the boy was under the age of sixteen years at the time of the injuries.

If we are right in our determination of these several propositions, there is no error for which this judgment should be reversed.

The judgment of the court of common pleas is, therefore, affirmed.

Marvin and Winch, JJ., concur.


text:
    EXECUTORS AND ADMINISTRATORS
    [Cuyahoga (8th) Circuit Court,
    February 29, 1904.]
    Hale, Marvin and Winch, JJ.
    Edward Madden, Admr., v. Edward M. McGillin, Admr.
    Special Compensation Allowed Administrator of Administrator’s Estate.
    Under circumstances warranting it, the probate court has authority to allow special compensation and attorney fees to the administrator of the estate of an administrator of another estate, for extra services performed by the last administrator and his attorneys in and about the filing of the final account of the deceased administrator of the first estate.
    Error.
   WINCH, J.

It appears that Sarah McGuire died in this county, leaving an estate of which Mary McGillin was appointed administratrix, and when Mary McGillin died, Edward M. McGillin was appointed her administrator, and filed a final account that should have been filed by Mary McGillin as administratrix on the estate of Sarah McGuire, claiming special compensation and attorney fees for extra services rendered in and for the filing of that final account, which were allowed by the probate court in the sum of one hundred dollars for extra compensation to the administrator, and seventy-five dollars attorney fees.

The matter went to the common pleas court and the common pleas court allowed the attorney fees, but reversed the probate court on the allowance to the administrator for extra compensation.

We hold, that under circumstances warranting it, the probate court has authority to allow special compensation and attorney fees to the administrator of the estate of an administrator of another estate, for extra services performed by the last administrator and his attorneys in and about the filing of the final account of the deceased administrator of the first estate.

And so, upon the review of this case, we find that attorney fees were properly allowed, and owing to the fact that the account itself is not before us or attached to the record or bill of exceptions, we are unable to determine whether the extra compensation should have been allowed the administrator, or not, and therefore affirm the common pleas court in the reversal of the probate court.

The judgment of the court of common pleas is affirmed in that regard.

Both the petition of the plaintiff in error and the cross-petition of the defendant in error are dismissed.

Hale and Marvin, JJ., concur.


author: GORMAN, J.

text:
    RAILROADS
    [Hamilton (1st) Court of Appeals,
    December 6, 1915.]
    Jones, Jones and Gorman, JJ.
    Cincinnati (City) v. Pittsburgh, C. C. & St. L. Ry.
    1. Occupation of Street by Five Railway Tracks, Unreasonable.
    There is no power or authority in a municipal council to grant the right to a railway company, either by ordinance or agreement with the company, to occupy, incumber and use a street by crossing it with five tracks connecting with a railway yard and in reality becoming a part of the yard, particularly where access to the yard can be had without thus occupying the street; nor could the right so to do be acquired by appropriation.
    2. City Solicitor m(ay Enjoin Unreasonable Occupation of Streets with Railway Tracks.
    There is ample authority in Sec. 4311 G. C. for the bringing by the city solicitor of injunction proceedings against the unreasonable occupation of a street with railway tracks, regardless of failure on the part of council to authorize him so to do.
    Appeal.

      Walter M. Schoenle and Constant South-worth, city solicitors, for plaintiff.

      Lmvrence Maxwell and Joseph Gra/ydon, for defendant.
   GORMAN, J.

Tbe plaintiff brought this action in the common pleas court to enjoin the defendant from laying railroad tracks across Ludlow street, one of the dedicated and improved streets of the city, and from obstructing said street; and it also asked for a mandatory injunction requiring the defendant company to restore said Ludlow street, its sidewalks and gutters, to their former condition. The cause is here on an appeal from a judgment of the common pleas court.

It is claimed by plaintiff in its petition that the defendant is proceeding to lay four or five tracks and switches across and in Ludlow street from east to west between Front street and the Ohio river, and has in furtherance of said work torn up the boulders in the street, changed the grade of some portions of the street, destroyed the sidewalks and the west gutter and partly destroyed the east gutter of said street, and piled on said street large quantities of earth and other debris, thereby obstructing the street and rendering it unfit for public travel, and has otherwise damaged said street and materially interfered with and impaired its usefulness; and that this has been done and is being done without legal right or authority and in violation of the rights of plaintiff and the public in and to said Ludlow street.

The defendant by an amended answer denies that it has unlawfully occupied said street; but says that its occupation of said street and its right to lay tracks across the same is lawful by virtue of certain ordinances and resolutions of the council of the city of Cincinnati adopted January 1, 1864; May 16, 1879; April 23, 1906, and especially by virtue of an ordinance adopted July 17,1905, number 984, which ordinance in substance granted permission to defendant company to construct and maintain three tracks and switch leads for two additional tracks across Ludlow street south of Front street, said three tracks and the leads running from three separate points from the west side of said Ludlow street and converging towards a common point at the southeast corner of Front and Ludlow streets and connecting with the track at present laid in the center of Front street at a point one hundred and fifty feet east of Ludlow.

Defendant avers that it accepted said ordinance August 11, 1905, and has complied with and is now ready and prepared to comply with the provisions thereof.

By reply the plaintiff challenges the validity of said ordinance and denies that it is binding upon the city of Cincinnati, and denies the power or authority of its council to grant the defendant the right to lay said tracks.

The evidence adduced on the hearing in this court shows that the tracks to be laid across Ludlow street are to connect certain yards of defendant with a connection track in Front street, which has been laid in said street for more than forty years. While the ordinance purports to grant the right to lay five tracks across the street — three tracks and two leads — it is claimed that but four tracks are intended to be laid at this time. Á plat offered in evidence shows that not only will these four tracks be laid across the street, but there will also be placed in the street two switches whereby cars may be switched or shunted from any one of these four tracks onto any one of the other three. It also appears that just west of Ludlow street and to be connected with these four tracks across the street, is located a railroad yard of the defendant occupying a whole block, from Ludlow on the east, to Broadway on the west, and from Front street on the north to Giffin street on the south; that there are at present four tracks in said yards, and the purpose of extending these four tracks into Ludlow street and constructing switches therein is to utilize all of the space in said yard for storage tracks, instead of placing switches within the yard limits. If these four tracks and the two switches can not be laid in Ludlow street then in order to use said yard provision must be made within the limits of the yard property for switches and leads, thereby curtailing the capacity of defendant’s yard. Indeed, it is manifest that these tracks and switches proposed to be laid in Ludlow street are but a continuation of the four tracks in defendant’s yard, and if permitted to be laid the entire width of Ludlow street will become as much a part of defendant’s yard as that portion thereof west of Ludlow street in which its four tracks are laid; so that under whatever guise the grant to lay these tracks was made, they are really intended to be used for and as a part of defendant’s yard. The switching and shunting of cars into this yard and upon the four tracks now therein must necessarily take place more or less in Ludlow street and east of the street, and if this should be done to any considerable extent the use of the street at this point will be very materially impaired.

It was shown by the evidence that Ludlow street is one of the main arteries of travel leading to the river. In the past, when a ferry line plied between Cincinnati and Newport, the boats landed at the foot of Ludlow and there was a great deal more traffic on this street than now, bnt now there is' considerable traffic in the street south of Front street, and likely to be much more in the future if the street can be kept open, clear and free from obstructions, because of the fact that the government of the United States proposes to maintain at all times a nine-foot stage of water along the entire river front of Cincinnati and the river at the foot of Ludlow street is a desirable and unusually advantageous place to tie up boats for loading and unloading and for repairs. It further appears that there is no access to the river by any street east of Ludlow for a distance of about two miles, and that an impairment of the use of this street would be a material hindrance to river traffic.

It is claimed by the city solicitor that the council had no power or authority to grant, by ordinance or otherwise, the right to defendant to lay these tracks, and that being the only claim of right which the defendant asserts, if this contention be sound, then the defendant company is a trespasser in this street when it undertakes to lay these tracks under no other claim of right than is given by this ordinance.

It is further claimed by the city’s council that even if the council had the authority or power to grant permission to lay these tracks, nevertheless the use proposed to be made of'the street by means of these tracks is such as to practically exclude therefrom the traveling public and renders such use unreasonable and therefore not permissible. If the council had the power to grant this permission to lay these tracks, it must be by virtue of some statute, for it is a well settled principle of law that municipal corporations (and of necessity their councils) have such powers and only such as are expressly granted or which are necessarily implied in order to enable them to carry into effect the express grants of power.

By the provisions of Sec. 3714 G. C., the council shall have the care, supervision and control of public highways, streets, etc., and shall cause them to be kept open, in repair and free from nuisance. But this grant of power to council does not carry with it the power to grant a right to a railroad company to occupy or incumber and use the streets of a municipality.

Louisville & N. Ry. v. Cincinnati, 76 Ohio St. 481 [81 N. E. 983]. As was said by Summers, J., in deciding this case, on page 497:

“Public streets, squares, landings and grounds are held in trust for the public, and being so held they are, for the uses for which they were dedicated or acquired and subject to the property rights of abutting owners, under the absolute control of the legislative power of the state. In this state the care, supervision and control of public highways, streets and grounds in cities is delegated to the council, but notwithstanding this delegation of general power over them, the state, now and since 1852, has in express terms delegated to cities the power to grant to railroad companies the right to occupy or incumber and use them, or in express terms has made the right subject to agreeing with the municipal authorities as to the manner in which they are to be occupied, so that the general power of care, supervision and control, that has been delegated does not carry with it the power to grant such right, and a grant by the council of a city of permission to occupy the streets and public grounds does not confer such right.”

Counsel for defendant has failed to point out any statute which authorizes council to grant permission to lay these tracks, and since such permission can not be granted under Sec. 3714 G. C., we are compelled to examine further to see if there exists any statute which authorized council to make this grant.

If power has been conferred' on council to grant permission to lay tracks in a street or across a street, or to agree upon the terms and conditions upon which this may be done, it appears to us it must be sought for in the provisions of Secs. 8763 to 8766 G. C. (formerly Sec. 3283 R. S.) In substance these sections provide that if in the location of any part of a railroad, etc., it be necessary to occupy with a surface or elevated track, etc., any public road, street, etc., the municipal corporation or public officers owning or having charge thereof, and the company, may agree upon the manner, terms and conditions upon which it can be used and occupied. If the parties are unable to agree thereon, etc., the company may appropriate so much thereof as is necessary for the purposes of its road, in the manner and upon the terms provided for the appropriation of the property of individuals.

In the case of Rockport v. Cleveland, C. C. & St. L. Ry., 85 Ohio St. 73 [97 N. E. 133], the Supreme Court held that under the above sections in the words of Judge Donahue, announcing the opinion of the court, on page 82:

“It necessarily follows that the railway company can acquire no further rights by appropriation than the village council could grant by ordinance or contract. ’ ’

Furthermore, the court in this case just cited said on pages 84, 85 and 86, in so many words, that a railroad company is not authorized to appropriate a part of a street, for all of its purposes, but that under the above cited sections, its right to appropriate a portion of a street is limited to the location of any part of the railroad itself, not for the purposes of a yard or approaches to a yard. On this point the court uses this language on the pages above referred to:

“Sec. 3283 R. S.” (now Secs. 8763 to 8766, G. C., inclusive), “under favor of which these proceedings were brought, does not authorize the appropriation of streets for any and all purposes incident to the operation of a railroad, but only for the location of any part of the railroad itself. In this respect it differs materially from Sec. 3281” (now Secs. 8759-8760 G. C.), “authorizing the appropriation of private property for depots, workshops, roundhouses and water stations. In the construction and location of the main line of road a railroad company can not but meet with conditions that are beyond its control, as, for instance, the crossing of streets and highways, and, therefore, notwithstanding that the crossing of these streets and highways may interfere somewhat with the public travel by foot passengers and ordinary road vehicles, yet the Legislature has recognized the fact that of necessity the railroad company must be given the right to cross the same, not merely because it also furnishes a mode of public travel, but because it would be impossible to construct railroads if such rights were not granted. But in the location and establishment of its yards, depots, workshops, roundhouses and water stations, the railroad company can largely guard against these contingencies and it is very evident that Sec. 3283 E. S. intends to require that it should do so, otherwise the language of that section would not be different from the language found in Sec. 3281, R. S.” (Sec. 8759-60, G. C., “Sec. 3283 does not in terms authorize a railroad company to condemn or appropriate public streets or roads for these purposes, and all statutes granting to corporations the right of eminent domain, which is an attribute of sovereignty, must be strictly construed. Currier v. Marietta & C. Ry., 11 Ohio, St., 228; Atkinson v. M. & C. Ry., 15 Ohio St., 21; Platt v. Pennsylvania Co., 43 Ohio St. 228 [1 N. E. 420] ; Ravenna v. Pennsylvania Co., 45 Ohio St. 118, [2 N. E. 445], Without recourse to this rule of construction it clearly appears that Sec. 3283 applies only to the railroad itself if it should be found necessary in the location of the same or any part thereof. All these other things that are incident to and undoubtedly absolutely necessary to be maintained by a railroad company for the purposes of operating its road are not included in the term railroad as used in this section; for if depots, workshops, roundhouses and water stations could be constructed upon public streets, it would amount to an absolute abandonment and destruction of the public rights therein. It is equally clear that railroad yards are not within the contemplation of this statute, and that it is not intended thereby to authorize a railroad company to construct its yard over and across or along streets and highways, either with the consent of the municipal authorities or by appropriation of the same.”

In this cáse from which we have quoted at length the court had under consideration the question of the power of a railroad company to appropriate by condemnation proceedings the right to lay, maintain and operate, in addition to its two main tracks then constructed and maintained thereover, five additional sidetracks or turn-outs along, upon and across Settlement road and Linndale road, two streets of the village of Rockport, Ohio, at the place where said roads intersect. In the' trial court it was shown that these additional five tracks were to be used for egress and ingress to the railroad company’s yards for the purpose of switching cars from one track to another, for making-up and separating trains of cars and for the storage of ears. The trial court on the preliminary hearing found that the appropriation sought to be made was an unreasonable interference with the rights of the public in the use of the highways and would be destructive of the public use of said highways, and that the appropriation was not necessary for the purpose of plaintiff’s rail.road, and thereupon dismissed the railroad company’s petition to appropriate. The judgment of the trial court in thus disposing of the railroad company’s petition was sustained by the Supreme Court, which in doing so employed the language above quoted.

Now, if we apply the principles enunciated in this case to the facts in the case at bar, we have a situation almost identical with the Rockport ease, with these differences: In the Rockport case the railroad company already had two main tracks upon and across the streets, which tracks were a part of it>4 main railroad line, and it was seeking an easement for five additional tracks on the streets on what it claimed to be its right-of-way, whereas in the case at bar the railroad company has a main track, being the Front street connection track, across Ludlow street, and is seeking the right to lay these four or five additional tracks so as to be able to reach its yards west of Ludlow street, and to switch in the street, and to make up and break up trains in the yard and on this street. In other words, these tracks are to be used solely as a part of the railroad company’s Front street yard.

If there be any difference between this case and the Rock-port case it would appear that there is less need for an easement across Ludlow street than there was across the streets in the Rockport case. The tracks are to be used in connection with the Front street yard and not as a part of the main lime as was said in the Rockport case.

We are therefore clearly of the opinion, following this Rock-port case, that the railroad company has not the power or authority to appropriate an easement for these tracks across Ludlow street for the purposes for which they are intended to be used. Nor could the railroad company acquire by agreement with the city council through an ordinance or otherwise that which it could not acquire by condemnation proceedings, for, as was said by the court on page 82 of the Rockport case:

“The property (the street) having been devoted to a public purpose, the principle obtains that the public use is the dominant interest in the street, and the village authorities could not grant any right to the railroad company under the provision of Sec. 3283 B. S., that would be destructive of these rights or amount to a material or substantial interference with the same,” etc,

In Wabash Ry. v. Defiance, 52 Ohio St. 262 [40 N. E. 89], the Supreme Court in discussing the powers of council to grant a right to lay tracks in or across a street under Sec. 3283 R. S. says (p. 309) :

“The object of the appropriation is to acquire such use of the street, etc.,, as could have been granted by agreement; and no greater use can be obtained in the one mode than in the other; the right acquired in either is limited to the use of so much of the street as may be necessary for the purposes ‘of the railroad.’ ”

To the same effect are: Lake Shore & M. S. Ry. v. Elyria, 69 Ohio St. 414 [69 N. E. 738] ; Ravenna v. Pennsylvania Railway, 45 Ohio St. 118 [12 N. E. 445]; Louisville & N. Ry. v. Cincinnati, 76 Ohio St. 481 [81 N. E. 983].

It is also manifest from the evidence in this case that the proposed use of Ludlow street for these switches and tracks would constitute a material interference with the public use of the street, on account of the number of these tracks and switches and the movement of cars thereon; and in view of the fact that access to the railroad company’s yard can be had from Front street, as shown by the evidence, we conclude that this proposed use is so unreasonable that even if there were power to appropriate or to grant the use by council, a court, hearing an application to permit these tracks to be laid, or an objection by the city authorities to prevent the laying thereof under an alleged grant from the council, should restrain the laying thereof.

It is urged by defendant’s counsel that the city solicitor had no authority to bring this action without being authorized so to do by the legislative body (the council) of the city. It is extremely unlikely that the city council, after endeavoring to give away the city’s street to the defendant company, would call upon the solicitor to take legal steps to prevent the doing of that which it had given permission to do. We think Sec. 4311 G. C., affords ample authority for the solicitor to bring this action regardless of the will or wishes of the council, and that in so doing he is exercising the high prerogative lodged in him by the Legislature to restrain the abuse of. the corporate powers of the city and to prevent the execution or performance of an alleged contract in contravention of the laws.

These proceedings were brought in the same manner and under like circumstances shown to have existed in the case of Louisville & N. Ry. v. Cincinnati, Supra, where no question was made of the solicitor’s right to bring the action on behalf of the city.

We are satisfied that a mandatory injunction is the proper remedy to restore Ludlow street to its former condition.

The judgment of this court is that the prayer of the petition be granted at the costs of the defendant.

Jones (E. H.) and Jones (O. B.) JJ., concur.


text:
    MUNICIPAL CORPORATIONS
    [Hamilton (1st) Court of Appeals,
    January 17, 1916.]
    Jones, Jones and Gorman, JJ.

      John Schrenk, Jr., v. Cincinnati (City).
    Appropriation for Park Purposes by One Municipality of Hand in Another Corporation.
    A municipality may enlarge its part area by appropriating contiguous lands notwithstanding they lie wholly within the limits of another municipality.

      Michael G. Heints, for plaintiff in error.

      Walter M. Schoenle and Saul Zielonka, for defendant in error.

       Affirming Cincinnati v. Ziegler 26 Dec. 79:

   GORMAN, J.

The defendant in error brought proceedings in the court of insolvency against the plaintiff in error and others to appropriate property for the extension of the Bloody Run boulevard for park purposes between the cities of Cincinnati and Norwood, and to fix the value thereof.

A part of the property of plaintiff in error, lying outside of but contiguous to the city of Cincinnati and within the limits of the city of Norwood, was appropriated. A jury was impanneled which, after a hearing, assessed the damages for the property taken and damages to the residue at $7,080, and a judgment was entered upon the verdict awarding the property to defendant in error upon the payment of the condemnation money. Error is prosecuted to this judgment.

It is claimed, first, that the verdict is against the weight of the evidence in that the amount of compensation assessed is totally insufficient.

The record fails to show that the verdict is so manifestly against the weight of the evidence as to warrant a reviewing court in setting it aside. The verdict appears to us to represent a fair’ value of the property taken and damages to the residue; in fact, the jury might well have returned a much smaller verdict and it would have done justice to plaintiff in error under the evidence adduced.

Secondly, it is claimed that the city of Cincinnati had no power or authority under the law to appropriate this property (which lies wholly within the city of Norwood, although contiguous to the city of Cincinnati) for parkway and boulevard purposes.

Sec. 3677 G. C., among other things, confers special power upon municipal corporations to appropriate, enter upon and hold real estate within their corporate limits.

“2. For parks, park entrances, boulevards, market places, and children’s playgrounds.”

It further provides that such power shall be exercised for the purposes and in the manner provided in Secs. 3677 to 3697 G. C., relating to the appropriation of property by municipalities.

Section 3678 provides that in the appropriation of property for any of the purposes named in Sec. 3677 the corporation ‘ may, when reasonably necessary, acquire property outside the limits of the corporation.

It will therefore be seen that the power and authority to acquire by appropriation proceedings property for park and boulevard purposes outside the municipality, when the same is reasonably necessary, is expressly granted.

But it is contended that the construction to be given to these two sections should be that the property outside the municipality which may be appropriated is property not within the limits of another municipality, but only such property as is wholly outside the limits of any municipality.

Such a construction would in effect read into Sec. 3678 language not therein, and would in effect constitute judicial legislation and a usurpation by the court of the functions of the legislature.

The legislature has created all municipal corporations either by special laws under the Constitution of 1802 or by general laws under the Constitution of 1851; and it is elementary that the creator can destroy. It, the legislature, may, unless there be constitutional inhibitions, merge two or more municipalities, transfer the territory or a part thereof from one municipality to another, abolish all the officers of a city or. village, or create new or additional officers; in fact, it can add to or take from municipalities their political rights and functions almost at will. State v. Cincinnati, 52 Ohio St. 419 [40 N. E. 508; 27 L. R. A. 737].

We can see no reason why the Legislature might not provide in specific terms that one municipality may appropriate property within the limits of another municipality, provided the property to be appropriated is for authorized public purposes such as parks and boulevards. While the statute, Sec. 3678, does not in specific terms provide that the appropriation of property within the limits of another municipality may be made, it does provide that property outside the municipality may be appropriated, and in the appropriation the municipality exercising the power of eminent domain is not limited to the taking of property wholly outside of any other municipality.

This right, to appropriate property for public purposes by one municipality, within the limits of another, was upheld in the case of New York, In re, 99 N. Y. 569 [2 N. E. 642], and in the case of Flatbush, In re, 60 N. Y. 398. In the last case the city of Brooklyn appropriated lands for park purposes within the corporate limits of the towns of Flatbush and Newlots, and its right so to do was upheld by the court of appeals.

The plaintiff in error has had a fair and impartial trial of his' cause, and has had the benefit of the judgment of twelve jurors and the trial court as to the fair market value of his property taken and damages to the residue. The power and authority of the city of Cincinnati to appropriate this property is undoubted, and we find no errors in the record of the trial prejudicial to plaintiff in error.

The judgment of the court of insolvency is therefore affirmed.

Jones (E. H.) and Jones (O. B.) JJ., concur.


text:
    EMINENT DOMAIN — MUNICIPAL CORPORATIONS
    [Hamilton (1st) Court of Appeals,
    March 29, 1915]
    Jones, Jones and Gorman, JJ.

      Cincinnati (City) et al v. Frances D. Jones et al.
    1. Title of Condemned Property Passes on Payment.
    In an appropriation of property by a municipality title does not pass until full compensation has been paid or secured to be paid.
    2. Taxes may be deducted from Compensation Awarded on Condemnation.
    A lien for taxes is not divested by condemnation proceedings, and taxes which have become a lien on the property appropriated on the date the title passes may be deducted from the compensation awarded.
    3. County Treasurer not Party in Condemnation Proceeding Because of Tax Lien.
    A county treasurer is a mere ministerial officer charged with the duty of receiving taxes, and is in no way a necessary party to an appropriation proceeding.

      Walter M. Schoenle, and John V. Campbell, for plaintiffs in error.

      DeCamip é Sutphin, for defendants in error.

      Motion to certify overruled by Supreme Court, July 2, 1915.

   GORMAN, J.

This is a proceeding to reverse a judgment of the court of insolvency of Hamilton county.

On December 11, 1911, the council of the city of Cincinnati duly passed a resolution declaring its intention to appropriate certain real estate of the defendants in error on Burnet avenue in said city, to public use for hospital purposes, and thereafter the said council passed the necessary ordinance directing the appropriation of said property to proceed. Thereafter, an application was filed in the insolvency court of Hamilton county, on January 27, 1912, to assess the compensation for said property, and such proceedings were thereafter had that on June 10, 1912, the jury returned a verdict assessing the value of the property of defendant appropriated at $28,200. On this verdict a judgment was duly entered September 28, 1912, finding the proceedings regular and according to law and that the defendants, Frances D. Jones and Frank J. Jones, were the owners of said real estate and the several interests therein, subject to such claims of the auditor and treasurer of Hamilton county, for taxes * * # as may be finally adjudged payable out of the compensation adjudged therefor; the verdict was confirmed, and the city of Cincinnati was ordered to pay the clerk of the court, or to said defendants or their attorney the amount of the compensation assessed for the use of said Frances D. Jones and Frank J. Jones, and to the treasurer of Hamilton county and the auditor of Cincinnati the taxes which were unpaid and a lien on the property; and that upon payment as aforesaid the city of Cincinnati shall be entitled to all the interest and estate in and to the possession of said lots and lands, and that an order issue to the sheriff to put the city of Cincinnati in possession of said property and said interests. The city was adjudged to pay the costs. Thereupon, on the same day, September 28, 1912, the city paid to Frances D. Jones and Frank J. Jones $27,700 of the compensation money, and $500 it paid to the clerk of the court to await the order of the court as to the payment of the taxes on the property for the year 1912. On final hearing on the question of the payment of the taxes for the year 1912, the court of insolvency held that no part thereof should be paid out of the compensation money awarded for the property, and that on distribution the treasurer of Hamilton county was not entitled to receive any sum on account of the taxes on said property for the year 1912 and which amounted to $357.50, but that the entire compensation awarded by the jury and the court should be paid to the defendants in error.

To this judgment on distribution the city of Cincinnati and the treasurer of Hamilton county excepted, and have brought the case into this court claiming that said judgment or order of distribution was erroneous, and that the court should have ordered said taxes for the year 1912 paid out of the sum awarded for the property.

The right of the municipality to take or appropriate private property for public purposes is derived from the provisions of the Ohio Constitution, Art. 1, Sec. 19, which among other things provides that for private property taken for public use, when not taken in time of war or other public exigency imperatively requiring its immediate seizure, or for the purpose of making or repairing roads, etc., a compensation shall first be made in money or secured by a deposit in money.

The case under consideration, therefore, required compensation to be either paid or secured in money before the property could be taken or appropriated.

The legislation authorizing council to proceed to appropriate the property is found in Secs. 3677 to 3697 G. C. The property was not appropriated by the adoption of the resolution declaring the intention to appropriate, nor by the adoption of the ordinance directing the appropriation to proceed. A reference to Secs. 3679 and 3680 G. C., discloses that council is thereunder authorized to declare the intent to appropriate and not to appropriate ; and the ordinance to be passed is one directing the appropriation to proceed.

We are of the opinion that no appropriation can be made or fully completed, such as the one made in the case at bar, until there has been full compensation paid or secured to be paid for the property. In this case the appropriation was not completed until September 28, 1912, when the money was paid over by the city. Up to that date the title to the property vested in the defendants in error, and did not pass to the city or vest in it until September 12, 1912. Sec. 3691 G. C.; Wagner v. Railway, 38 Ohio St. 32, 36; Garvin v. Columbus, 5 Dec. 333 (5 N. P. 236).

This conclusion would appear to be unquestioned, if we consider that by the provisions of Sec. 3697 G. C., the municipality has six months within which to decide whether or not it will take the property at the valuation fixed by the jury. If it fails to pay the assessed value or to take possession of the property within six months from the date of the assessment of the value, its right to make the appropriation on the terms of the assessment shall cease, and the judgment and order of the court shall cease to be of any effect, except as to costs, which must be paid by the municipality whether it takes the property or not. The defendants then, being the owners of the property and having the title thereto up to September 28, 1912, were they liable for the taxes for the year 1912, and were these taxes a lien on this property on that date when the city became vested with the title thereto ?

Under Sec. 5671 G. C., the lien of the state for taxes levied for all purposes, in each .year, shall attach to all real property subject to taxation on the day preceding the second Monday of April, annually.

If this property on the day preceding the second Monday of April, 1912, was the private property of the defendants in error, as we have found that it was, then there appears nothing in the record to indicate that it was not subject to taxation. It was not exempted from the payment of taxes. But did the lien attach on that date for county, city and school taxes, as well as for taxes purely for state purposes? We think the question must be answered in the affirmative, under the decision of the Supreme Court in State v. Roose, 90 Ohio St. 345 [107 N. E. 760]. On page 351 the court says:

“It is further insisted on behalf of respondent that by reason of the provisions of Sec. 5671 G. C., this tax cannot be legally levied for the year 1913, because that section provides that ‘ The lien of the state for taxes levied for all purposes, in each year, shall attach to all real property subject to such taxes, on the day preceding the second Monday of April, annually. ’ This same objection would apply with equal force to all tax levies for state and local purposes made after the date preceding the second Monday of April each year. The fact is that practically all levies, especially those for local purposes, are made after this date. Section 5627 G. C. directs the county commissioners at their March or June session to determine the amount to be raised by taxes. Sec. 5646 G. C., directs the township trustees to determine on or before the 15th day of May annually the amount of taxes necessary for all township purposes, and Sec. 5649-3a G. C., directs that on or before the first Monday in June of each year the county commissioners of each county, the council of each municipal corporation, the trustees of each township, each board of education and all other boards or officers authorized to levy taxes within a county, except taxes for state purposes, shall submit or cause to be submitted to the county auditor an annual budget; and under the provisions of Sec. 5649-3b, as amended February 16, 1914, the budget commissioners are not required to complete their work until the third Monday of August. While Sec. 5671 G. C., fixes the date in each year that the lien of the states for taxes shall attach, yet it by no means follows that this requires that the tax levy shall be made on or before that date. In fact, all the legislation upon that subject is in direct conflict with such a construction. On the contrary it is clear that the amount of taxes is to be determined subsequently and the assessment then relates back to the date at which the taxes became a lien. This question is fully discussed and the correct conclusion reached in the case of Loomis v. Von Puhl et al, 15 Dec. 37, (2 N. S. 423.)”

The decision referred to by the Supreme Court and approved by it was rendered by Judge Hollister when on the common pleas bench of this county, and an examination of the decision will disclose that it does fully discuss the question under consideration and the conclusion reached is in accord with the opinion of the Supreme Court in the above entitled case.

But it is claimed by counsel for the defendants in error that the rule applicable to judicial sales is the proper rule to apply in condemnation proceedings in making an order as to the payment of taxes, and the cases of Hoglen v. Cohan, 30 Ohio St. 436; Markley v. Whitmore, 61 Ohio St. 587 [56 N. E. 461], are cited in support of their contention. These decisions were rendered under a construction of Sec. 5692, G. C., which provides that when land, held by tenants in common, is sold upon proceedings in partition, or real estate is sold at judicial sale, or by administrators, executors, guardians or trustees, the court shall order the taxes and penalties and the interest thereon against such lands, to be discharged out of the proceeds of such sale.

Now it will be observed that condemnation proceedings do not come under the provisions of this section, and we do not feel that we would be warranted in extending the provisions of this section to condemnation proceedings. Such proceedings are purely statutory, and it can not be said that appropriation proceedings involve the judicial sale of lands. There is no sale by order of court in condemnation proceedings and it would amount to judicial legislation to hold that by analogy the provisions for the payment of taxes in cases of judicial sales should be applied to proceedings to appropriate lands for public uses. Therefore, we are of the opinion that the rules laid down in these eases cited by counsel for defendants in error do not apply.

As to the point that the county treasurer was not made a party to the proceedings until after the money was paid over, we are of the opinion that it was not necessary that the county treasurer should have been made a party at any stage of the proceedings. He was simply the ministerial agent of the state to receive the taxes, and it was the duty of the court to see that the state taxes were paid out of the proceeds on distribution, and the lien for taxes is not divested by condemnation proceedings. Lewis, Eminent Domain, (3d ed.) Sec. 524; State v. Railway, 75 Neb. 4 [105 N. W. 983] ; State v. Godfrey, 10 Circ. Dec. 316 (20 R. 649).

The city of Cincinnati was entitled to have the property appropriated clear and free of all encumbrances including the lien for taxes which had attached when it took possession of the property. It was entitled to have what it bargained for under its proceedings to appropriate — an absolute fee simple title, clear and free of liens and encumbrances. Sleeper, In re, 62 N. J. Law, 67.

If it were required to pay the taxes in addition to the condemnation money, then it would be paying for the property more than the amount awarded to the owners by the verdict of the jury. The property could not be placed on the exempted list when the city acquired it on September 28, 1912, until it had first satisfied the then existing lien for the taxes for the year 1912.

We are therefore of the opinion that the court of insolvency erred in not ordering the taxes for the year 1912 to be paid out of the funds in the hands of the clerk held to determine the question of the payment of the taxes; and for such error the judgment is reversed and the judgment which that court should have rendered will be entered in this court.

Jones (E. H.) and Jones (O. B.), J., concur.


author: POWELL, J.

text:
    POSSESSION
    [Licking (5th) Court of Appeals,
    October Term, 1915.]
    Houck, Shields and Powell, JJ.
    Harry H. Baird v. Jewett Car Co.
    Ownership of Land Taken in Name of Attorney of Corporation Which Entered into Possession.
    A purchase of land by one who in other matters was acting as the attorney and agent of a corporation which at once took possession of the land, will be regarded as having been made for the corporation notwithstanding title was taken by the attorney in his own name, where the corporation thereafter issued stock to the attorney in an amount in face value somewhat exceeding the price of the land and remained in undisputed possession for more than ten years without any claim having been made by the said attorney on account of the land or any attempt to collect rent for its use; and an action to recover possession of the land, brought by one to whom it was conveyed by the said attorney and who had full knowledge of all the circumstances surrounding its purchase by the attorney will be dismissed and title established in the corporation.
    Appeal.

      Fitzgibbon, Montgomery & Black, for plaintiff.

      Kibler & Kibler and Flory & Flory, for defendant.
   POWELL, J.

The plaintiff filed his petition in that court alleging that he was the owner of certain described lands in fee simple, and entitled to the possession thereof, and that the defendant, which is a corporation organized under the laws of "West Virginia, unlawfully keeps him out of possession thereof.

Plaintiff prays judgment for the recovery of possession of said lands, and all other proper relief.

To this petition an answer and cross-petition was filed in which the defendant admits that it is a corporation under the laws of West Virginia, and in possession of the real estate in the petition described, and denies each and every other allegation therein contained.

For cross-petition the defendant alleges that in December, 1901, it employed one Frederic M. Black, as its attorney and agent, to purchase for it the real estate described in the petition, which was then owned by one Samuel F. Van Voorhis, and furnished him with the sum of $2,500 of the capital stock of defendant, with which he was to purchase said lands, and which he received for that purpose; that with the said stock or the proceeds of the sale of same, said Black purchased the said real estate of said Yan Yoorhis for the price of $2,300; that, without the knowledge or consent of defendant, he caused the legal title to said real estate to be taken in his own name; that on the date of the conveyance from Yan Yoorhis to Black, viz., on or about October 23, 1903, it obtained possession of said real estate, and ever since then it has had sole and exclusive possession of the same under said transaction and contract of purchase, and has used the same as a part of its manufacturing plant.

It is alleged that $1,000 of the $2,500 of capital stock of defendant so furnished said Black, was issued by it, at Black’s request, to the plaintiff Baird to reimburse him for money furnished at the request of said Black towards the purchase of said real estate, and it avers that there was no other consideration for the sale and delivery of said stock to the plaintiff Baird, and the residue of said stock, in the sum of $1,500, was issued by defendant to said Black on or about the said time on account of said transactions, and on no other account. It is further alleged that Black and wife, on December 4, 1911, conveyed said real estate to plaintiff for the pretended consideration of $1, but it avers that plaintiff, at the time, had full notice and knowledge of the rights of this defendant in the premises, that it was in possession under claim of full title thereto in equity, and that Black had no title, and that plaintiff acquired no title under said deed, and is not entitled to possession of said real estate as averred in the petition, but that on the contrary it was entitled to have the deed for said real estate from Black to Baird canceled and set aside, and its title thereto quieted against any right, title o'r interest that plaintiff might have therein, and prays accordingly.

For a second cross-petition defendant adopts all the allegations and averments of its first cross-petition, and alleges that there was no consideration for the execution of the said deed from Black to plaintiff, which is recorded in Yol. 218 of the deed records of this county, at page 309, and further alleges that it has performed all the conditions on its part to be performed in the purchase of said real estate, and is entitled to a conveyance therefor.

For reply to the two cross-petitions, plaintiff admits that defendant is in possession of said real estate, and that on December 4, 1911, Black and wife executed a deed to plaintiff for said real estate and denies each and every other allegation in said two cross-petitions contained, and prays judgment as in the petition.

Trial was had on the issues thus joined and an appeal taken to this court, where the cause was heard on a transcript of the evidence offered in the court of common pleas, supplemented by some additional oral testimony.

It will be observed that the issue and the only issue presented for determination is the ownership of the lands described. Black’s rights are not before the court in any way save as his testimony tends to throw light on the question in controversy. The evidence offered is very conflicting in many particulars, but there is such a preponderance in the main evidentiary facts as to convince the court with practical unanimity of the correctness of the conclusion reached.

To state the claims of the parties a little more concisely than they are stated in the pleadings, we have the plaintiff with the legal title to the lands in controversy, by warranty deed from Frederic Black and wife of date of December 4, 1911, and claiming the right to immediate possession of the same.

The defendant is ip. possession of said lands and had been so in possession some eight or ten years when the petition was filed. It claims to own the lands in controversy by an equitable title, arising from the fact that it furnished the purchase price of the same to the said Frederic M. Black as its agent, to purchase said lands in its name and for its benefit; that said lands were so purchased by Black for its benefit from Samuel F. Van Voorhis, who is stipulated to be the common source of title to both parties, and that Black took the legal title in his own name, without its knowledge or consent. The purchase price claimed to have been advanced by defendant was $2,500 of its capital stock at its par value, $1,500 of which was issued to Black individually and $1,000 to plaintiff at Black’s direction, to credit upon money-advanced by him at Black’s request on tbe purchase price of said lands from Yan Yoorhis. Both parties claim to own the lands in dispute, and are contesting to determine which of their respective claims is the stronger, as a party claiming disputed lands must rely on the strength of his own title and not on the weakness of his adversary. Black’s own claims are probably the most important in the whole transaction, but they are not before the court, only as they become competent and relevant as testimony throwing light on the subject of dispute between the parties to this action.

Black admits the receipt of the $1,500 of stock and the issue of $1,000 more to Baird, that was not paid for in any other way than by credit to him on money advanced on the purchase price of said lands from Yan Yoorhis, but he claims that the issue of $1,500 to him was on his own account, and in payment of an account held by him against the defendant, and that he had subscribed for the said stock with the distinct understanding and agreement that it was to be paid for by credit upon the account due him from the car company for services rendered. This is denied by the defendant.

The whole controversy grows out of the double agency, or dual relationship of Mr. Black to this transaction.

The undisputed evidence shows that Black was, at the time possession of the land was taken by defendant, its general agent and attorney. His account for services, and the testimony generally shows this to be true. Possession of said lands was taken by defendant almost immediately after the execution of the deeds by Yan Yoorhis, and has been retained by it ever since that date without objection by Black or claim by him for rents.

This is the most significant and determinative fact in the whole record, and is the principal basic fact for the conclusion reached by the court. “Possession is nine points of the law” in eases of this kind. Without pursuing the discussion further, it will be sufficient to say that, from the whole evidence, we find that Black acted as the agent of defendant in the purchase of the lands in controversy; that his purchase was for its use and benefit, and that defendant is the owner in equity of the same, and entitled to tbe relief prayed for in its cross-petitions. We find also tbat tbe plaintiff took title to tbe premises witb full knowledge of tbe facts in relation thereto, and in addition to tbis be was bound, as a matter of law, to know tbe rights of tbe party in possession at tbe time be so took title to tbe premises in dispute.

Tbe petition will be dismissed and a decree entered for defendant on its answer and cross-petitions as prayed for. Exceptions may be noted.

Houck and Shields, JJ., concur.