author: Pollock, J.

text:
    GRANT OF USE OF A PRIVATE RIGHT-OF-WAY HELD TO INCLUDE USE FOR ALL PURPOSES.
    Court of Appeals for Lake County.
    Realty Title & Investment Co. v. Fairport, Painesville & Eastern Ry. Co. et al.
    Decided, September 17, 1919.

      ■Easements — Uses Acquired in a Private Right-Of-Way Appurtenant to the Lot Conveyed — Right to Lay a Pipe Line Across such Right-of Way.

    1. The conveyance by deed of a lot in an allotment, which deed contains a grant as an appurtenance to said lot of a perpetual right to the grantee, his heirs and assigns, to use and enjoy but in common with the owners of the residue of said allotment, a private way for pleasure, recreation, amusement, health, and travel, conférs on tlie owner of said lot the right to use said private way as a means of ingress and egress for any and all purposes to which said lot may be adapted.
    2. The owner of such a lot has the right to lay pipe lines across such a private way, beneath the surface, for the purpose of mining and removing any mineral product that may be discovered thereon, provided such use of said private way is reasonably necessary in min-. ing and transporting the mineral discovered thereon, and does not unreasonably interfere with the use and enjoyment of said way by the owners of the residue.

      Harry T. Nolan, for plaintiff.

      Harry E. Hammcur, for defendants.
   Pollock, J.

This action comes into this court .on appeal, and was submitted on the pleadings, testimony and argument of counsel.

In 1899 plaintiff owned a tract of land lying between the Fairport public road and Lake Erie, in Painesville township, Lake county, and east of the village of Fairport. Some time during that year the plaintiff platted this land into lots and tracts of land, making a private way forty feet wide, extending from the Fairport road to Lake Erie, through the center of this tract, and some wide ways intersecting this main way. This plat was recorded in the recorder’s office of Lake county. Lot or tract number nineteen was on the east side of this center way, and lot or tract number eighteen was on the west side. The company, after this allotment was made, sold the lots therein by a deed containing a condition regarding the use of this-private way, which will be referred to hereafter, retaining in itself the legal title to this way. The Fairport, Painesville & Eastern Railroad Company, some time prior to the commencement of these proceedings, became the owner of lot number nineteen, and also of a strip of land extending along the north side of lot number eighteen to this center right of way, and obtained from the plaintiff a grant to build and operate its railway over this center right of way.

The Diamond Alkali Company, defendant in error, was for some time prior to the commencement of these proceedings engaged in the manufacture of alkali products, its plant being situated on the west side of this allotment. It obtains its product by drilling deep wells down to the salt or alkali mineral, and water is conveyed to these wells and forced down into them for the purpose of making a brine of the alkali mineral or salt, and that is pumped out of the wells and transported in pipe lines to its plant and manufactured into alkali products.

Prior to the bringing of this action the alkali company had obtained a lease or a conveyance from the defendant railroad company of lot number nineteen for the purpose of drilling and producing alkali salt from wells which it intended to open on this lot, and was proceeding to lay a pipe line through the strip of ground acquired by the railroad company along the north side of lot number eighteen and across this center way, the legal title to which was retained by the realty company, to wells which it drilled on lot number nineteen, and also to lay a pipe line from the wells across this same center way to its alkali plant on the west side of this allotment. It was intending to lay these pipes in trenches below the surface across this center way. This action was brought to enjoin the alkali company from laying its pipes across this strip of land.

The Diamond Alkali company admits its inteneion of laying the pipe lines as alleged in the petition, but claims it has a right to do so under the deed made to its predecessor in title by the plaintiff in this action. All the subsequent conveyances from that time down to the conveyance to the railroad company contained like conditions in regard to the use of this center private right of way.

At the time this allotment was made by the plaintiff the purpose was supposed to be, or the object intended at that time was, to make or develop a summer resort. The supposition was that the lots would be built on for residences, either permanent or summer residences for the owners themselves, or for boarding and rooming houses for the people who might visit there during the summer season. It also appears that since this alkali product was discovered on this property and in the adjoining neighborhood the property has ceased to be used as a summer resort. The condition in the deed of the plaintiff in regard to this center private way extending from the Fairport road to Lake Erie reads as follows:

“To have and to hold the same, together with all appurtenances, privileges and easements hereinafter mentioned, forever, and the said grantor, in consideration of the premises and the mutual covenants herein mentioned, does hereby give and grant unto the said grantee, his heirs and assigns, a perpetual right to use and enjoy, but in common, notwithstanding, with the owners of the residue of said allotment, so much of the bank and 'beach bordering on the lake described on plat of said allotment as Reserve ‘B’ as lies east of the west line of the north and south center road extended to the lake, together with the use of the private ways and drives in said plat described as lies east of the west line of said north and south center road, reference to which is hereby made; said reserve, ways, and drives to be used for the pleasure, recreation, amusement, health and travel of the owners of said allotment and for no other purposes.”

This strip of ground, under the above conditions, was to be used by the owners of the several lots for pleasure, recreation, amusement, health and travel, and for no other purpose. The present owners of the lot could convey to the alkali company no greater right to use this center way than it possessed by reason of this condition. It is claimed on the part of the alkali company, but strenuously denied by the plaintiff, that this condition gives to the company the right to transport water across this private way on this lot for the purpose of producing this alkali salt and to transfer the salt brine off of this lot by means of pipes under the ground.

This provision in the deed, taking into consideration what the parties evidently had in their minds at the time this allotment was made and these deeds given, gave to the owner of the lot the right to use this private way as ingress and egress to his property. Every use of this private way as a means of ingress and egress, to the full and free enjoyment of the lot sold, passed to the grantees of the several lots conveyed by the deeds containing the condition referred to. It is true that all the words characterizing the use of this lot were indicative of a pleasure resore, except the last two, which provide for health and travel, but the last word, “travel,” if the others do not convey that meaning, clearly shows the intention of the parties to the several deeds that the way was intended as a means of ingress and egress to the property for its full enjoyment. This especially appears when we consider that this wajr, and the other crossways which were subject to the same conditions, were the only means of ingress and egress to these lots. This deed gave to the owners of the lots the right to use this way to carry off whatever products might be raised or produced on the lots, whether they were products which the parties had in mind when they contracted, or products the result of new uses to which the lots had been subjected. They would have a right also to transport over this right of way whatever might be needed either for the owner’s enjoyment while on the lot, or for use in producing whatever he might desire to produce on his property. When a party grants rights over his property for ingress and egress to the property of another, he not only contracts with reference to the then use but to any future use that the owner of the dominant estate may deem profitable or desirable. This is referred to in the case of Arnold v. Fee, 148 N. Y., 214 (42 N. E. 588), as follows:

“A deed to a lot bounded on an alley recited, after the description of the. premises, that the conveyance was with the privilege of the main alley leading to the “Palace Stables,” so called, as an easement for ingress and egress along the north line or alley line on the premises hereby deeded, for the distance of 98 feet west from Franklin street, and no more, and for no other purpose.” Held: that the right of way was for ingress and egress necessary for any business which the grantee might conduct on the premises, and was not extinguished by the change in the use of the premises.”

So that the parties owning lot number nineteen had a right to use this right of way to carry away from said lot anything produced thereon, whether such products were, in the minds of the parties..at the time of the conveyance or not, .and they have the right in the ordinary way to carry on to the lot over said way whatever might be necessary for the enjoyment or business which the owner might be conducting thereon. Such grants are not made for present use alone, but involve modern discoveries and development in the world’s progress. Years past, when we were using horse-drwan vehicles, rights of way were granted by one party to another across his property. The parties had in mind at that time that such use would be made of the way granted, but since that time automobiles and motor trucks have come into use and there is no question that the owner of the dominant estate has a right to travel over these ways with this new means of transportation.

It is claimed that because the alkali company is intending to take, through pipe lines laid across this strip, necessary water to mine the mineral that has-been discovered since the conveyance of this property by the plaintiff, and then take this mined mineral through pipe lines across this strip of ground, it is exceeding the use conveyed by plaintiff to its predecessor in title, under the provision referred to. We think that the provision referred to did give the owner of the lot the right to mine and transport this mineral across this strip, in the ordinary way such mineral products are mined and transported. It is not claimed the way that the alkali company proposes to use this strip would interfere with any use which the plaintiff is noAV making of this strip, or any use that it could make under the conditions in the deed conveying the lot; neither is it claimed it will interfere with any rights that the adjoining lot owners may have in this strip. All the plaintiff claims is that such use is an invasion of its legal right in the strip.

The proof shows that this is the usual and only practical way of mining and transporting this mineral to the alkali plant.

The New York court of appeals, in the case of Marvin v. Brewster Iron Mining Co., 55 N. Y., 538, said in the opinion, at page 551:

‘ ‘ The necessity which .is to govern is not fixed and .unvarying. The right may be exercised in a manner suitable to .the business to be carried on. Such is the principle of' the' decision in the analogous case of Gayford v. Moffatt. (Law Rep. [4 Ch. App], 133), where it is held that a lessee of an inner close, becomes entitled to a right of way through an outer close, and that the way afforded to him must be suitable to the business to be carried on by him, on the premises demised. And what is, perhaps, but an expansion of the last proposition, the exercise of the right is not to be confined to the modes in vogue when it was first acquired. The owner of the mine may keep paeé with the progress of invention and ingenuity, so far as is necessary to a profitable working of his property in competition with rivals.” ...

No doubt when this deed was made by the plaintiff neither of the parties thereto thought that such a product would ever be found on this property, or such a use would be made of this right of' way, but it is a discovery of a new' value of the lot which requires á new way of developing and transporting the product.

The case of the New York Carbonic Acid Gas Co. v. Geyser Natural Carbonic Acid Gas Co., 72 N. Y. Supp., 354, contains an issue somewhat similar. The plaintiff had a right of way over the defendant’s premises, and he was seeking to transport by pipe line some kind of mineral water to a plant on his property across this right of way for the purpose of marketing this mineral water. The court there held:

“Where plaintiff has acquired a right of way to certain lands upon which a spring was located, it had a right to lay a pipe for conducting gas from such spring on the. whole right of way on 'the surface, or sink it below the frost line.”

In the opinion, on page 357, the court refers to the right to use such a way by laying pipes thereon as follows:

“It is strongly urged by the defendant’s counsel that the privilege of passage means purely a passage over the lauds and broken road, and does not extend to the laying of pipes within the protection of the soil. It would seem that a two-inch pipe, placed out of sight, would not in the slightest degree vex or disturb the defendant in the use it makes of its own land, and that an occupation by horses and drags with heavy loads would be to the defendant a matter of more serious disturbance. But I can not agree with the position taken by the defendant in this respect. The right of passage to transport commodities is a right which is adapted to a reasonable use under the varying conditions of business life, and is not measured by the exact form of the transporting vehicle, or the number of times it is used. Such an easement is a grant of practical benefit so far as is consistent with the purpose of the thing granted, and not destructive to the rights of the owner of the servient tenement.”

The supreme court of Alabama, in the case of Williams v. Gibson, 84 Ala., 228 (4 So. 350), in speaking of the rights of a mine owner against the owner of the overburden or superstructure, say at page 234:

"But he is not limited, as we have already said, to such appliances as were in existence when the grant was made, but may keep pace with the progress of society and of modern invention. ’ ’

We think the principle is universally applied to such grants of ways over one’s property that the contract is made with a view of future developments and discoveries upon the property conveyed, and that the party has a right to use the way granted as may be necessary for the new use to which he has subjected his property. We think the alkali company has a right to use this private way as intended by it, and plaintiff’s petition will be dismissed.

Metcalfe and Farr, JJ., concur.


source: Caselaw Access Project

author: Hamilton, J.

license: Public Domain

text:
    LEASE OF CANAL LANDS CONSTRUED AS AN EASEMENT.
    Court of Appeals for Hamilton County.
    Clifton Springs Distilling Co. et al. v. State.
    Decided, July 7, 1919.

      Canals — Right of ~Way Through Municipality — Leaased to City for Street and Other Purposes — Right Thus Conveyed Held to 6e an Easement, the Fee Title Remaining in the State. . . : '

    The state of Ohio leased to the- city of Cincinnati certain canal lands - located within said city, the lease being executed under authority of a special act of the Legislature, entitled “An act to -provide for leasing a part of the Miami and Brie canal to the city of Cincinnati as a public street or boulevard and for sewerage and subway purposes” found in 102 O. L., 168. The act provided that the city could improve and occupy the canal lands as a public street or boulevard and for sewage, conduit and subway purposes, conditioned that the city should construct suitable works" for a convenient outlet for the discharge of water from the canal at a specified point so as not to obstruct the flow of water through the remaining part of the canal or destroy the present supply of water for commercial purposes, and further that the city should construct works for supplying water to lessee users along the portion of the canal to be abandoned in order that the state might carry out its existing contract obligations with lessee users of said water. The City paid all installments of rent due under the lease, but never entered upon or improved the lands or complied with any of the. conditions of the lease. Under such facts the lease granted only an easement to the city, the fee title remaining in the state. The construction by the city of improvements, the giving of the bojid and the filing of the plans and specifications .contemplated by.the act were conditions precedent to taking possession, .and until such conditions are performed the city acquires no right to rentals for navigation, to the exclusion of the state.

      Maxwell & Ramsey, for Clifton Springs Distilling Có.

      Saul Zielonha, City Solicitor, and Harry R. Weber, Asst. City ..Solicitor, for city of Cincinnati. .
    - George T.- Poor, .special-• counsel; and Simeon M: Johnsoli, special counsel, for the state of Ohio.
   Hamilton, J.

Heard on error.

The statement of the case, the claims under the petition, the position assumed by the distilling company in its answer, and the claims of the city of Cincinnati in its petition, are correctly and fully set forth in the agreed statement of facts, which is incorporated in the bill of exceptions as follows:

Agreed Statement oe Facts.

‘ ‘ In the petition plaintiff claimed from the defendant $1,361.33 for the use of part of the canal system of the state of Ohio by the defendant for carrying goods and merchandise in canal boats from October 1, 1912, to August 31, 1917, at the rate of 15 cents per mile, so traveled by the canal boats as used by the defendant.
“The defendant filed an answer admitting the- amount claimed and stating that without collusion with it, the city of Cincinnati claimed said sum and had notified said defendant not to pay the same. The city’s claim arose under a lease of said eanal from the state of Ohio under certain acts of the legislature. The defendant, Clifton Springs Distilling Co., was permitted to pay the above sum of money into court under its claim of interpleader. AVhereupon the city of Cincinnati was made a party defendant and filed its answer. The state of Ohio then filed a reply. The question for decision is which of these two is entitled to the above fund now in.the hands of the, clerk of this court. .The agreed facts are as follows:
“The city of Cincinnati is a municipal corporation under the laws of Ohio. The statement of the petition as to the sum of $1,361.33 being due from the original defendant as above set out, is also admitted. The Clifton Springs Distilling Co.’s place of business is situated on the canal on Ludlow Avenue and the Baltimore & O. S. A¥. Ry. The governor of the state of Ohio executed and delivered to the city of Cincinnati on August 29, 1912, and on January 6, 1917, the leases attached to the answer of the defendant, The city of Cincinnati. The city of Cincinnati paid all installments of rental under said leases up to April 1, 1918, the last semi-annual payment of the city being made in advance on October 11, 1918.
“The city of Cincinnati never entered upon, improved or occupied as a public street or boulevard, or for sewerage, conduit or for any other purpose or. purposes, all or any part of the Miami and Erie Canal described in the leases to the defendant. or in any acts of the general assembly under which said leases were made. No plans and specifications were ever drawn or approved by the state engineer for a convenient outlet for the discharge of the water of the said Miami and Erie .Canal at a point 300 feet north of Mitchell avenue., or at any other point so as not to obstruct the flow of water through the remaining part of the canal, or so as not to destroy or injure the present supply of water for mechanical or commercial purposes. No bond in any amount has been prescribed by the state board of public works or approved by the attorney-general of Ohio for the faithful performance of said work or given by the city of Cincinnati for such performance. The city of Cincinnati has never constructed or caused to be constructed suitable and .sufficient works for a convenient outlet for the discharge of the water of said Miami and Erie Canal at any point so as not to obstruct the flow of water through the remaining part of said canal and so as not to destroy or injure the supply of water as it existed at the date of the passage of the several legislative acts of 1911, for mechanical or commercial purposes. Said city has never adopted or constructed, either under said acts or at all, appropriate works-, or any works, for the purpose of supplying water to the lessee users of said water of the Miami and Erie Canal along that portion of said canal to be abandoned in order to enable and for the purpose of enabling the state of Ohio fully, or in any other way to carry out and discharge the obligations resting upon it by virtue of certain contracts subsisting at the passage of the act of 1911, to and in force between the state of Ohio and said lessee water users during the remainder of the terms of said contracts in the same quantity and under the same conditions and at the same rate of rental provided for in said contracts.
“The state of Ohio for many years prior to May 15, 1911, and continuously ever since, has been in possession of all that portion of the Miami Canal described in all the foregoing acts, and of the property described in the leases attached to the answer of the. defendant, the city of Cincinnati, using said canal as a navigable stream, flowing the waters through said portion of the canal for navigation and public purposes and that such portion of said canal, and particularly that portion thereof for navigation of which tolls were charged to the original defendant herein and for which this action was brought, always have been and were during the period for which said tolls were charged used for navigation and for public purposes by the state of Ohio and the people of the state during all the time aforesaid. In this behalf and regard said plaintiff, state of Ohio, during all the time aforesaid, maintained all of said property, including the banks and bed of the canal, as well as all other parts thereof, and exercised care and supervision over all said property during all the time aforesaid and which it still continues to do, through its state officers, servants, agents and employes, at all times at expense and outlay to the plaintiff, the state of Ohio, expending for the purposes aforesaid since July, 1917, the sum of not less than $3,464.25.”

It will be seen that the claim of the city of Cincinnati is based largely upon the construction of the lease executed and delivered to it by the governor of the state of Ohio on August 29, 1912, which lease was dated from October 1, 1912, for the term of 99 years, renewable forever, and was executed under the authority of an act of the general assembly of Ohio, found in 102 O. L., 168-171, entitled “An act to provide for leasing a part of the Miami and Erie canal to the city of Cincinnati as a public street or boulevard, and for sewerage and subway purposes.”

The plaintiff in error, city of Cincinnati, bases its strongest argument for its rights in the matter upon the terms of the lease, urging that a fair interpretation of the lease gives it the right to the rentals for the use of that section of the canal leased to it. We are of opinion that the rights of the parties must be determined from the act itself, authorizing the lease, and that no rights accrue under the terms of the lease which are not duly authorized by the act.

In the case of Roseberry v. Hollister, 4 Ohio St., 297, the court say at page 308:

“The state can only act by its agents, duly authorized by law; and where such agents, being mere ministerial officers, transcend their authority, their acts are void, or at least voidable by the state.”

Again in the case of State v. Cincinnati Central Ry., 37 Ohio St., 157, the court say at page 178:

“It is for the legislature, and not its subordinate agents, * * * to authorize such additional public use and to confer such authority.”

'Without determining whether or not the lease contains any power or authority not contemplated by the act, it is clear that if it does it would be but a transcending of authority on the part of the state’s agents, and would be without effect in so far as it exceeded the authority granted by the act. The act, under which the lease was made, is as follows:

“An act to provide for leasing a part of the Miami and Erie canal to the city of Cincinnati as a public street or boulevard and for sewerage and subway purposes.
“Be it enacted by the General Assembly of the State of Ohio:
“Section 1. Permission shall be given to the city of Cincinnati, in the manner hereinafter provided, to enter upon, improve and occupy forever, as a public street or boulevard, and for sewerage, conduit and if desired for subway purposes, all of that part of the Miami and Erie canal which extends from a point three hundred feet north of Mitchell avenue to the east side of Broadway in said city, including the width thereof, as owned or held by the state, but such permission shall be granted subject to all outstanding rights or claims, if any, with which it may conflict, and upon the further terms' and conditions of this act.
“Section 2. Such permission shall be granted upon the further condition that said city, in the uses aforesaid of all or any portion herein mentioned of such canal, shall construct or cause to be constructed suitable and sufficient works for a convenient outlet for the discharge of the water of said canal, at a point three hundred feet north of Mitchell avenue, so as not to obstruct the flow of wnater through the remaining part of such canal, nor destroy nor injure the present supply of water for mechanical or commercial purposes. Such outlet shall be constructed in accordance with plans and specifications to be drawn or approved by the state engineer, and the city of Cincinnati shall give bond in such sum as shall be prescribed by the state board of public works, to be approved by the attorney general for the faithful performance of the work.
“And such permission shall be granted upon the further condition that said city shall adopt and construct appropriate works for the purpose of supplying water to the lessee osers of said water along that portion of the canal to be abandoned in order to and for the purpose of enabling the state fully to carry out and discharge the obligations now resting upon it by virtue of certain contracts now subsisting and in force between it and said lessee water users, during the remainder of the terms of said contracts, in the same -quantity and under the same conditions and at the same rate of rental provided for in said contracts, and provided further that during the period of construction of a street or subway or of appropriate works for the purpose of supplying water to the lessee usetas of said water, as herein provided, said city of Cincinnati shall cause no cessation or diminution of the supply of water to the said lessee water users to which they are entitled under their respective contracts or leases with the state of Ohio, except in so far as such cessation or diminution of such supply of water may be absolutely necessary.
“ Section 3. Upon the passage of this act the governor shall appoint three (3) arbitrators, none of whom shall be residents of Hamilton county, who shall, whenever the council of said city decided that such canal be used for all the purposes mentioned in section one (1) hereof, proceed to act as provided in section four (4) of this act.
“Section 4. The arbitrators thus selected shall constitute a board of arbitration whose duty it shall be, without reasonable delay, to ascertain and fix the actual value of the property of the state specified in section one hereof. The annual rental to be paid by the city of Cincinnati to the state for the use of such property shall be a sum equal to four (4) per cent, of such valuation so ascertained and fixed. Such board of arbitrators shall report the valuation as above provided for in writing to the governor and the council of such city i’espectively. And such board of arbitration shall have authority to hear the testimony of witnesses as to the fair value of sueb canal so to be taken by said city,'to employ such assistants as it may deem necessary, and to fix their compensation, and >o incur the expenses incident to its work. Each arbitrator shall receive for his services no.t exceeding twenty-five dollars a day for the period of time actually employed in the work of acting as arbitrator on such board; and all such expenses and such compensation shall be paid by said eitv, one-half of the amount so paid to be a credit upon the first installment of rent payable under the lease that may be entered into pursuant to this aet. In ease of any vacancy occurring in such hoard from any cause, such vacancy shall be filled in the same manner in which the appointment so becoming vacant was made. Provided that all rentals accruing to the state under this aet shall be paid into the state treasury to the credit of the general revenue fund.
“Section 5. Upon approval by resolution of the council of said city of the amount of' such valuation as fixed by such board of arbitration or a majority of them, and upon the governor being satisfied that the interests of the state are fully protected and that the valuation placed upon such property is adequate, which fact shall be endorsed upon such lease by the governor, he shall execute and .deliver to the city of Cincinnati a lease for ninety-nine years, renewable forever, which lease shall not be assignable, of such canal so to be taken by the said city of Cincinnati for the uses and purposes before mentioned, and upon the terms and conditions specified in this act; and such lease shall contain covenants on the part of said city for payment of said rental to the.state in equal semi-annual payments during such term of such lease, and for compliance with this aet, and on the part of the state for quiet enjoyment by said city of Cincinnati of the demised premises, and the attorney general shall prepare such lease, and such lease shall contain the further provision that if said city of Cincinnati fails, neglects or refuses to perform all or any of the terms and conditions of said lease or fails, neglects or refuses to comply with each and every one of the terms and provisions of this aet, the said lease shall become null and void and said city and the users and occupiers of said property shall forfeit all rights in said lease and in the property located upon the land therein described and such other covenants and provisions as, in the judgment of the attorney general, will protect the interests of the state.
“In case the state of Ohio shall at any time build a canal of not less than nine-foot guage from Lake Erie to the Ohio river at Cincinnati, the city of Cincinnati shall reimburse the state for the amount of its expenditure in procuring right of way either by purchase or condemnation ,or both, for said canal, from a point three hundred feet north of Mitchell avenue, through the Mill Creek valley, to the Ohio river.
‘.‘Section 6. The.surface of such street or boulevard when completed shall not be occupied or used for the purpose of any street, steam, electric, elevated or other kind of railroad whatsoever, nor shall any rights by way of appropriation be exercised or permitted as against such property; but nothing herein shall prevent the construction by said city or its grantee., of a subway beneath such street or boulevard, for use of a street, electric, suburban or interurban railway; provided, however, that the right to construct such subway or to use the same when constructed for any street, electric, suburban or interurban railway thereunder, shall never be granted or permitted to any person, persons or corporation other than said city, except on terms that shall provide for competitive bidding for the right to construct or use the same as aforesaid and on terms that shall secure to street, electric, suburban, interurban or underground electric railways the right to use the subway, all tracks, appliances, services and electric current in and incident thereto, on equal and proportionate terms, said terms to be determined on the basis of the total cost of operation and a reasonable return on the investment; provided further, that any street, electric, suburban or interurban railway using such subway shall permit the use of its tracks by any other electric, suburban or interurban railway for a reasonable compensation for such distance as is necessary to secure entrance to such subway, and provided further that should a gauge other than standard guage be established for the tracks of said suibway, a standard guage shall likewise- be provided for the tracks therein and for such tracks as are necessary to secure entrance thereto.
“Any grant or franchise made to any person, Arm or corporation to construct or. operate a subway under the property mentioned in section one hereof, shall be subject to all the provisions of Sections 9147, 9148 and 9149 of the General Code relating to underground railroads.”
‘ ‘ Section 7. All laws and parts of laws inconsistent herewith are hereby repealed.
Section 8. If any section or portion of this act shall for any reason be declared to be unconstitutional, such invalidity shall not affect any other section or portion hereof.”
Section 1 of the act provides that permission shall be given to the city of Cincinnati in the manner hereinafter provided to enter upon, improve and occupy forever, as a public street or boulevard, and for sewerage, conduit, and, if so desired, for subway purposes, that section of the canal described in the act and in the lease itself. Section 1 further provides that such permission shall be granted subject to all outstanding rights or claims, if any, with which it may conflict, and upon the further terms and conditions of the act.

A careful reading of the act shows clearly that some of its provisions look to the rights and interests of the state, such as the saving of the revenues, and the flow of the water from above the section leased through the sewers or outlet to be provided for by the city. None of these reservations or conditions contemplates the future use by the state of that part of the canal leased for the purpose of navigation — but do contemplate regulation for the purpose of giving a free flow from above and furnishing a supply to the users along the canal. This grant and the construction by the city of the improvement authorized would render it impossible to use the section of the canal leased for the purpose of navigation, and would be an abandonment for such purpose by the state of its incidental powers to sell the surplus water, or for navigation purposes, unless expressly saved 'by the reservations and conditions of the act.

Section 2 of the act provides:

“Section 2. Such permission shall be granted upon the further condition that said city, in the uses aforesaid of all or any portion herein mentioned of such canal, shall construct or cause to be constructed suitable and sufficient works for a convenient outlet for the discharge of the water of said canal, at a point three hundred feet north of Mitchell avenue, so as not to obstruct the flow of water through the remaining part of such canal, nor destroy nor injure the present supply of water for mechanical or commercial purposes. Such outlet shall be constructed in accordance with plans and specifications to be drawn or approved by the state engineer, and the city of Cincinnati shall give bond in such sum as shall be prescribed by the state board of public works, to be approved by the attorney general for the faithful performance of the work.
“And such permission shall be granted upon the further condition that said city shall adopt and construct appropriate works for the purpose of supplying water to the lessee users of said water along that portion of the canal to be abandoued, in order to and for the purpose of enabling the state fully to carry out and discharge the obligations now resting upon it by virtue of certain contracts now subsisting and in force between it and said lessee water users, during the remainder of the term of said contracts, in the same quantity and under the same conditions and at the same rate of rental provided for in said contracts, and provided further that during the period of construction of a street or subway or of appropriate works for the purpose of supplying water to the lessee users of said water, as herein provided, said city of Cincinnati shall cause no cessation or diminution of the supply of water to the said lessee water users to which they are entitled under their respective contracts or leases with the state of Ohio except insofar as such cessation or diminution of such supply of water may be absolutely necessary. ’ ’

The only right granted to the city under the act and the lease executed by the governor pursuant thereto was an easement, the fee title to the lands remaining in the state, subject only to the use by the city for the purposes named in the act. The grant was a right to occupy and improve as a public street or boulevard, and for sewerage, conduit and subway purposes, the section of the canal described, the fee remaining in the state. No other state’s right or interest was granted or intended to be granted than that just recited.

In the ease of State v. Pittsburgh, C., C., & St. L. Ry., 53 Ohio St., 189, the fourth proposition of the syllabus is as follows:

“By the act of March 24, 1863, 60 O. L., and the conveyance afterwards executed by the governor pursuant thereto, the only right granted to the city of Cincinnati was to enter upon, improve and occupy the land described therein forever as a public highway and for sewerage purposes, the title to the lands remaining in the state subjected only to such use.”

It is true that in the case of Little Miami Elevator Co. v. Cincinnati, 30 Ohio St., 629, the court held that the permission granted to the city to enter upon, improve and occupy forever as a public highway and for sewerage purposes was an abandonment of that part of the canal as a canal, and that such improvement and new use of it by the city rendered impossible any future use of it as a canal, and that if any future use was. reserved such reservation would be inconsistent with the grant. It will be noted that the proposition there was that the-improvement and new use were inconsistent with the grant, and the fifth proposition of the syllabus of that case holds:

1 ‘ This grant and the construction by the city of an avenue and sewer along the line of the land, upon a plan of improvement, approved by the board of public works, in such manner that the canal could no longer be used for purposes of navigation was an abandonment of it by the state for the public uses for which it was held. ’ ’

The grant alone does not constitute an abandonment of the section of the canal granted. There must be the construction by the city of the improvements contemplated by the act, and, until said improvements are constructed, there is nothing inconsistent with the use by the state of the section granted for the purposes of navigation or the furnishing of a water supply. Further, we are of the opinion that the construction of a suitable outlet, as provided by the act, and the giving of a bond, as therein provided, constitute conditions precedent to the taking possession of the section of the canal leased, to the exclusion of the state from the uses to which it was entitled as a public highway.

In the case of State v. George, 34 Ohio St., 657. the court say in the first paragraph of the syllabus;

“The execution and delivery of the bond required by the act of April 6, 1876 (73 O. L., 275), and the supplementary act of April 24, 1877 (74 O. L., 466), are conditions precedent to the right to exercise the powers which said act were designed to confer.”

That was a grant to the city of Hamilton to fill up the canal basin, and the act required the execution of a bond, and the court held, as above stated, that the execution and delivery of the bond was a condition precedent to the right to exercise the powers conferred. In that case the act did not in terms provided that the deposit of the bond with the governor should precede the exercise by the city of the authority to fill up the basin. The court held that the deposit of the bond as a condition precedent was intended by the act.

In the instant case the act provides that such permission should be granted upon certain conditions, to-wit: The construction of the outlet for the discharge of the water from above, approved by the state engineer of the plans and specifications therefor, the execution of a bond, and further, upon conditions as to the protection of the supply of water to lessees. The agreed statement qf facts shows none of these conditions to have been performed by the city. It is claimed by the city of Cincinnati that it has paid full rental value during the period covered by the lease, and that this alone gives it the right claimed. The answer to that is that the city possessed the right to proceed at once, upon the taking effect of the lease, to do the things provided in the act and to perform the conditions required. It may be stated further that the rentals had been paid in the case of State v. George, supra; but the court did not consider that in passing upon the case.

The authorities are uniform that both the execution of the grant and the construction of the improvement by the city must take place before the abandonment is complete. We therefor? hold that the city acquired no right to rentals for navigation, having failed to perform the conditions precedent required under Section 2 of the act; that the use by the state as a high way. for navigation purposes, until the improvement is made by the city, is not inconsistent with the grant; and that the state of Ohio. is entitled to the money in question.

Shohl and Cushing, JJ., concur.


author: Allrbad, J.'

text:
    CONSTRUCTION OF A TRUST DEED.
    Court of Appeals for Pickaway County.
    Allread, Ferneding and Kunkle, Judges of the Second Judicial District, sitting by designation.
    Pierson, Trustee, v. Mitchell, et al.
    Decided, March 31, 1920.

      Trust Deed, Conveys and Equitable Estate to the Beneficiary. When— Power to Remove Trustee — Jurisdiction to Require an Accounting.

    1. A deed for certain lands to “a trustee, his successor, heirs, and assigns forever,” to manage and control the land conveyed for a certain beneficiary, to pay the beneficiary the net rents and profits and such part of the principal sum as said beneficiary may from time to time desire to use, with power to sell or mortgage for such purpose, conveys an equitable estate in fee to the beneficiary.
    2. The probate court has power to remove the said trustee and appoint his successor.
    3. A clause in the deed that the trustee “shall not be required to render any account of his trusteeship to any court hut a settlement between the parties shall be final and conclusive,” does not supersede the jurisdiction of the probate court over the accounting in case no settlement has -been made between the parties.

      I. N. Abernathy, for plaintiff.

      Milt Morris and Barton Walters for heirs of David H. Dennis. Fred P. Griner, for Eli A. Leist, mortgagee.

      Charles Dresbach, for the children of Sarah Jane Mitchell. H. B. Weaver, for Wm. Taylor Dennis and Samantha Hill.
   Allrbad, J.'

Heard on appeal.

The rights of all parties are founded upon a deed executed on January 13, 1905,. by David H. Dennis to David G. Dennis, trustee for Sarah Jane Mitchell. David H. Dennis at the date of the executon of said deed was 79 years -if age, and had six children, one of whom was Sarah Jane Mitchell. There were contemporaneous and prior deeds to other children, but we think the deed in question may be construed by its four, corners.

The consideration was “$1.00 and other valuable considerations paid by David G-. Dennis, Trustee for Sarah Jane Mitchell.”

The granting clause was “Unto the said David G. Dennis, Trustee for Sarah Jane Mitchell, his successors, heirs and assigns forever.” ' '

The habendum clause was “Unto the said David G. Dennis, Trustee for Sarah Jane Mitchell, his successors, heirs and assigns forever. ’ ’

The warranty clause was “Unto the said David G. Dennis, Trustee for Sarah Jane Mitchell, his successors, heirs and assigns except a mortgage of $3,000.00, of which the said David G. Dennis, Trustee for Sarah Jane Mitchell, assumes and agrees to pay $400.00 thereof as the consideration.”

The deed also contains the following recital:

“The said David G. Dennis is to manage and control the said lands as trustee for said Sarah Jane Mitchell, and is to pay to the said Sarah Jane Mitchell the net rent and profits thereof and such part of the principal sum as she may from time to time desire to use, and for this purpose, the said i-rustee is hereby authorized to sell or encumber by mortgage, the whole or any part of said land,.as he may, in his judgment, deem best, and he shall not be required to render any account of his trusteeship to any court, but a settlement between said parties shall be final and conclusive.”

The said David G. Dennis accepted the said trust and' performed the duties thereof until about April 7, 1909, when he was removed by the probate court of Pickaway county .and Frank T. Sehleieh was appointed as his successor. Ou April 14, 1913, Sehleieh resigned and Robert Pherson was appointed his successor.

David II. Dennis, the grantor, died July 24, 1907. ' Sarah Jane Mitchell, the beneficiary of the.deed, died July 10. 19IS, leaving children.

During the administration of the trust certain mortgages were executed by the trustee upon the real estate described in the deed and the consideration thereof was received by Sarah Jane Mitchell.

There are also certain debts and expenses outstanding against the estate of Sarah Jane Mitchell.

The controlling questions relate, first, to the jurisdiction of the probate court to remove the original trustee named in the deed and appoint his successor; second, to the construction of the deed and the interest conveyed thereby.

We think under See. 11029 G. C., et seq., the probate court had jurisdiction to remove the trustee named in the deed and appoint his successor. •

It is true that the trust created by the deed express^ provided that the trustee should not be required to render any account of his trusteeship to any court and that a settlement between said parties should be final and conclusive. Nevertheless, in the absence of a settlement between the parties, the probate court would be the appropriate forum to exercise jurisdiction over the trust, and, by clear' implication, if not by express authority, the probate court would have jurisdiction to remove the trustee and appoint his successor.

We think it clear that David G-. Dennis, the trustee named in the deed, took no interest under the deed except as trustee for Sarah Jane Mitchell. The grant to him, his successors and heirs and assigns was not intended to create a personal interest, but only to facilitate the execution of the trust.

David G- Dennis having no individual interest in the title, his removal and the appointment of his successor would ipso facto vest the equitable title to the land, together with the duties and responsibility Of the trust, in his successor.

The question which has given us most concern is between the claim of the heirs of David H. Dennis and the claim of the heirs of Sarah Jane Mitchell. Counsel for the heirs of David II. Dennis rely upon the case of Broadup v. Woodman, 27 Ohio St. 553.

We think, however, there is a vital distinction between the trust created in the Broadup case and the one in the case at bar. Woodman was the trustee in the case cited, and the terms of his trust were stated in a certain answer filed in a former case. According to the admissions of said answer Woodman’s trust wras limited to the payment of certain debts of the grantor and provision for the support and maintenance of grantor’s wife and the support, maintenance and education of his child. It was held that after full performance of the trust the remainder reverted to the grantor’s heirs. The trust in the case at bar is not limited as in the Broadup case. The title is granted in the broadest possible terms to the said trustee of Sarah Jane Mitchell. The terms of the trust required the said trustee to manage and control the said land as trustee for the said 'Sarah Jane Mitchell and to pay her “the net rents or profits and such part of the principal sum as she may from time to time desire to use.” “Such part” would include the whole and would give its beneficiary the' right to receive it in partial payments or installments.

Sarah Jane Mitchell was not only made beneficiary of the legal title, but the terms of the trust place the income as well as the principal absolutely at her disposal. The trustee’s authority was confined to the management and control of the land for her benefit with the right to sell or encumber the property in the management of the trust. The trustee in the management 'and control of the land was invested with authority to make repairs and also such improvements as were necessary and proper. Whether the expenditures made were proper should be determined by the probate court. We are, therefore, led to the conclusion that Sarah Jane Mitchell became the equitable owner in fee of the real estate and that subject to the- execution of the trust and the payment of valid encumbrances and debts the interest in said real estate and the proceeds thereof passed upon her death to her heirs.

The deed will be so construed. The details- of accounting will be left to the probate court.

Ferneding and Ktinkle, JJ., concur.


text:
    QUESTION AS TO WHETHER A CONTRACT WAS BREACHED.
    Court of Appeals for Hamilton County.
    Mal-Gra Castings Co. v. National Brass Manufacturing Company.
    Decided, March 15, 1920

      Contracts — Purchase of a Fixed Amount of Castings at a Specified Rate —No Stipulation as to Manner or Time of Payment — Hfféci of War Conditions, Railway Congestion and Failure to Pay One Installment Become Questions for the Jury.

    Plaintiff and defendant entered into a contract whereby defendant was to make for plaintiff 400,000 specified castings at nine cents per pound, f. o. to., deliveries to be made as early as possible after January 2, 1917, nothing being said as to manner or time of payment. Defendant began deliveries of the castings which were accepted and paid for by plaintiff. The last installment, the value of which was $20.82, was delivered toy defendant to the carrier' March 20, 1917, but never received or paid for by the plaintiff. Plaintiff later complained of nondelivery of the remaining installments and demanded immediate delivery, whereupon defendant ’ replied that it would be unable to make any deliveries before January 1, 1918'. In an action by plaintiff for breach of contract, Held:

    1. By the language of the contract and conduct of the parties it was the intention to make deliveries by installments, and by virtue of Section 8422, General Code, delivery and payment are concurrent. Under paragraph 2, Section 8425, General Code, whether the failure to make payment for the last installment was such a breach as to justify defendant to refuse to proceed further is a mixed question of law and fact to be submitted to the jury under proper instructions. ;
    2. Defendant having denied a breach on its part, and alleged its willingness to proceed with deliveries under the contract, it was error for the court to charge as a matter of law that the statement of the defendant that it could not resume deliveries before January 1, 1918, was a breach of the contract by the defendant.
    '3. Under Section 8423, General Code, the question whether the offer to deliver 'January 1, 1918, was an unreasonable time under the terms of the contract was for the jury.

      4. What is reasonable time must be considered in the light of the surrounding circumstances, and it was error for the court to exclude evidence offered by defendant tending to show that after March, 1917, war conditions made it impossible to get necessary labor and materials; that defendant was hampered by shipping conditions,that the plant which furnished defendant power broke down; and that strikes and wages interfered with shipments.

      Andrews & Andrews and Ben B. Nelson, for plaintiff in error.
    Hunt, Bennett &■ Utter, for defendant in error.
   Hamilton, J.

Heard on error.

The petition in error seeks to reverse a judgment obtained in the court of common pleas of Hamilton county, Ohio, claiming as ground for reversal error in giving the special charges requested by defendant in error, error in the general charge to the jury, error in the exclusion of evidence offered by plaintiff in error, and that the verdict and judgment are against the weight of the evidence and not sustained by sufficient evidence.

The case was heard on the amended petition, the answer thereto, and the reply. The action was one for breach of contract.

The plaintiff below, The National Brass Manufacturing Co., entered into a contract with the defendant, The Mal-G-ra Castings Co., under which the defendant agreed to make for plaintiff 100,000, No. 16, and 300,000, No. 81, foot castings, at a price of nine cents per pound f. o. b. Cambridge City, Indiana. The contract provided that deliveries were to be made as early as possible after January 2, 1917.

It is claimed that of the amount of eastings contracted for, the defendant has only delivered to the plaintiff 9,414 pieces, and that the defendant now refuses to make further delivery of any eastings whatsoever, although demand therefor has been made by the plaintiff. The plaintiff alleged it had duly performed all the conditions on its part to be performed, and asked damages.

The' answer admitted the contract and the amount delivered, but denied each and every other allegation in the amended petition,' and .averred that defendant had been ready and willing to manufacture the other castings, undelivered; that plaintiff refused to pay for a consignment of eastings; and that defendant thereupon declined to make further • eastings until the amount owing was paid. The answer further alleged thát Subsequent to the refusal to pay, although defendant was 'willing and is now willing to manufacture the balance ■ of the castings, pursuant to the contract, the plaintiff withdrew'from'the defendant all patterns! necessary for the manufacture of the castings, and that’ by reason thereof the defendant was- pré^ vented from completing their manufacture, although it 'was ready and willing to do so. Defendant claimed a breaeh-'of the contract on the part of the plaintiff. To this answer' the plaintiff filed a general denial.

The following is a copy of the contract involved in the case:

November 25th, 1916.

¡VIal-G-ra Castings Co.,

Cambridge City, Indiana.

Gentlemen :—

We hereby confirm order given Messrs. Moesta and Ruehrwein a few days ago for:—

100.000 ' No. 16 feet castings.

300.000 No. 81 feet castings.

Price: $.09 per pound F. O. B. Cambridge City, Ind.

All gates to be ground.

Deliveries to be made as early as possible after January 2nd, 1917.

We also reserve the right to return defective castings to you monthly.

Yours respectfully,

The National Brass Mfg. Co...

Accepted:— Per S. M. Lawson.'

The Mal-Gra Castings Co., '

Per J. W. Brown, Sec.

It appears that the eastings company, pursuant to the .contract, began delivery of castings in installments, which were accepted and paid for by the brass company. The last installment of the amount admitted to have been delivered was der livered to the carrier at Cambridge City, Indiana, on March 20, 1917, and the invoice therefor sent to the brass company. No further deliveries were made after this date. It appears that the brass company did not receive this last installment, the value of which as shown by the invoice was $20.82. At the request of the castings company the invoice was returned, and they undertook to trace the shipment from Cambridge City, the place where the shipment was delivered to the carrier. Nothing further was done by the eastings company with reference to the deliveries of the goods contracted for, although shipments were urged by the brass company. ¡

It appears that on August 13, 1917, the brass company wrote a letter, which is in evidence, to the eastings company, complaining of nondelivery and demanding immediate delivery. On August 16 the castings company replied to that letter stating that it would not be able to make any deliveries until January 1, following. The brass company thereupon went into the market and purchased the castings elsewhere, andj on September 17, 1917, filed this action in the court below for damages for breach of contract by the eastings company.

On September 29 the castings company wrote the brass company calling their attention to the unpaid installment of $20.82, stating that they were ready to commence immediate deliveries, but refusing to do so until the unpaid installment of money was paid. Without paying the installment, the brass company withdrew its patterns from the castings company.

At the close of all the evidence counsel for the defendant castings company moved the court to direct the jury to return a verdict for the defendant, and for judgment in its favor, which motions the court overruled. The plaintiff did not move for judgment, nor for a directed verdict. The matter was thereupon submitted to the jury.

Plaintiff, before argument, requested the following special charges:

“No. 1. The fact that the plaintiff, the National Brass Manufacturing Company, did not pay for one of the shipments of castings made by the defendant, The Mal-Gra Castings Company, did not excuse the Mal-Gra Castings Company from performing their agreement to make the eastings called for by the contract. ’1
“No. 2. The refusal on August 16th, 1917, by the defendant, The Mal-Gra Castings Company to make any further deliveries upon their contract with the plaintiff, The National Brass Manufacturing Company before .January 1, 1918, was the breaking by the Mal-Gra Castings Company of the' contract between the plaintiff and defendant.”

Both of these charges were given as requested, over the objection of defendant, and exception taken thereto.

The giving of these special charges presents a question as to whether or not the failure to pay for the installment of March 20, 1917, and the refusal to make further deliveries before January 1, 1918, as stated in the letter of the castings' company of August 16, 1917, were questions of law for the court or questions of fact for the jury.

It is urged by counsel for defendant in error that the nonpayment of $20.82, the small installment of March 20, being such a paltry sum in consideration of the entire amount involved, would not constitute a breach. While it is true that the law does not regard trifles (Hallet & Davis Piano Co. v. Starr Piano Co., 85 Ohio St., 196, the amount in question, although small, is the invoice price of one whole installment. Section 8425 G. C. (Sales Act), paragraph 2, provides:

“When * * * the buyer neglects or refuses to make delivery of or pay for one or more installments, it depends in each ease on the terms of the contract and the circumstances of the case, whether the breach of contract is so material as to justify the injured party in refusing to proceed further.”

There is no time fixed by the contract for the payment of the goods. Section 8422 G. C., provides:

“Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions,”

Delivery in installments had been made and accepted by the brass company, and they had made payments therefor on the installments invoices. The language of the contract and the conduct of the parties thereunder indicated clearly that it was the intention to make delivery in installments, and, under the provision of Sec. 8422, “delivery and. payment were concurrent. ’ ’ Failure to make the payment for the installment, therefore, brings this question under See. 8425, paragraph 2. 'Whether'or not the nonpayment is such a breach of the contract, or is so material as to justify the castings company in refusing to proceed further, depends on the terms of the contract and the circumstances of the ease. This presents a mixed question of law and fact, and the facts and circumstances should have been left to the jury, under proper instructions of the court.

In the second special charge of plaintiff, above quoted, the court, in effect, charged as a matter of law that the statement of the eastings company that it could not begin deliveries before January 1, 1918, was the breaking of the contract by the castings company. This was error. In the amended petition', plaintiff alleged a breach of contract which was met by way of general denial by the defendant, and defendant further alleged its willingness to proceed with the deliveries under the contract. This directly raised the question as to whether or not deliveries to begin January 1, 1918, .were within a reasonable time under the terms of the contract, no time for completion having been specified. Seetoin 8423 G-. C., paragraph 2, provides-

“When by a contract to sell or a sale the seller is bound to send the goods to the' buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time.”

Paragraph 4 provides:

“Demand or tender of delivery may be treated as ineffectual unless made at a reasonable hour. What is a reasonable hour is a question of fact.”

- It is conceded that what is a reasonable time is a question of fact for the jury, but it is urged by the defendant in error that the allegation in the answer did not raisé the question. As we have above observed, the question is made by the general denial of the breach. While it is the law that if a breach is admitted, facts to relieve against a breach must toe pleaded, that is not the question here. The breach itself is denied and the willingness to perform is alleged, and, under the law and See. 8423 G. C., the fact as to whether the offer to deliver January 1, 1918, was or was not an unreasonable time was a question for the jury. If the time was unreasonable, the letter would constitute an anticipatory breach.

.

In its general charge, the court charged the jury that the only question for the jury to consider was the amount of damage. In view of our holding, on the question of the submission of plaintiff’s special charges, Nos. 1 and 2, it becomes apparent that this was error. The court should have submitted to the jury the question of reasonable time and whether or not under all the circumstances of the case the failure to pay the installment of $20.82 was a material breach.

The defendant proffered evidence tending to show that after March, 1917, owing to war conditions, it was impossible to obtain necessary labor and material, and that it was hampered and inconvenienced by shipping conditions; that the electric light plant of Cambridge City, which furnished the defendant with power, broke down, which made it impossible to operate the foundry, that the town was small and the labor market limited, and that questions arose involving strikes and wages of the laborers, all of which interfered with deliveries. The trial court refused to admit this evidence, and this refusal is urged as a ground of error.

We are of opinion that it was error to exclude this evidence. In view of the general denial of the allegations of the petition, to entitle it to recover, the plaintiff was bound to establish the breach by showing nonperformance within a reasonable time. The defendant was thereupon entitled to introduce any evidence which tended to controvert that fact.

The time that is reasonable for performance means reasonable in view of all the existing facts and circumstances, ordinary and extraordinary, legitimately bearing upon that question at the time of performance. Time that is reasonable under ordinary circumstances may be unreasonable under extraordinary circumstances, or conversely, and applying to the instant case, extraordinary circumstances may make a time of performance reasonable which under ordinary circumstances would be unreasonable. Empire Transportation Co. v. Philadelphia & Reading Coal & Iron Co, 77 Fed. 919, [35 L. R. A. 623]; Corrigan v. Iroquois Furnace Co., 100 Fed. 870; Acme Transit Co. v. 133,000 Bushels of Wheat, 243 Fed. 970; Eppens, Smith & Wiemann Co. v. Littlejohn, 164 N. Y., 187 [58 N. E. 19; 52 L. R. A. 811], and Richland S. S. Co. v. Buffalo Dry Dock Co., 254 Fed. 668.

The evidence proffered would tend to show extraordinary circumstances arising during the time of performanse, and what was reasonable time must be considered in the light of these surrounding circumstances.

The evidence was admissible as bearing on the question of reasonable time, and the defendant was entitled to have the consideration of the jury upon this evidence.

For the_ errors above stated the judgment will be reversed and the cause remanded for a new trial.

Shohl and Cushing, JJ., concur.


author: Lieghley, J.

text:
    LIABILITY FOR INJURY TO MINOR INVITED TO ASSIST BY EMPLOYEE CONTRARY TO RULE.
    Court of Appeals for Cuyahoga County.
    The Delivery Co. v. Callachan, by etc.

    Decided, July 2, 1917.

      Master and, Servant — Contrary to Rule Truck Driver Invites Minor to Assist — Minor Injured — Employer Liable — Failure to Request Special Instruction to the Jury — Charge Limited by Answer, When.

    1. Where an employee of a company engaged in delivering special packages invites a minor to ride on the truck and deliver packages for him, promising to pay the minor for such services, and the minor is injured through the negligence of the employee, the company is liable for such injury, notwithstanding it had a rule that employees were to allow none other than authorized employees to be and remain on such trucks.
    2. Error can not be predicated with reference to the failure of the court to charge with reference to one phase of a case in the absence of a request to charge with reference thereto.
    3. Where the answer contains a general charge of contributory negligence followed by specifications of contributory negligence, the court should limit the jury in its consideration of contributory negligence to the question whether or not plaintiff was negligent in the particular charged in the answer.

      Gage, Bay, Wilkin & Wachner, for plaintiff in error.

      Chapman, Howland, Niman- & Waite and Geo. C. Hafley, for defendant in error.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, October 9, 1917.

   Lieghley, J.

Heard on error.

The parties stood in reverse order in the court below, and for convenience will be so named herein.

The plaintiff,- Charles M. Callachan, a minor, filed his petition in the court below stating that he was a minor; that on the 29th day of October, 1915, he received certain personal injuries through the carelessness and negligence of the defendant, for which he prayed for damages; that the denfendant company was engaged in the business of delivering packages for various concerns in the city of Cleveland by means of an automobile truck then and there in charge of one Stephan; that on the 26th day of October, 1915, the said Stephan was operating said truck in delivering packages at and near East 40th street and Payne avenue, where he met plaintiff and invited him on the truck and invited him to act asa“ jumper ’ ’ for him in delivering packages to customers, and promised to pay him for his services; that he did pay him; that this proceeding continued for four successive days, and that on the fourth day, through the carelessness and negligence of said Stephan i: the operation of said auto truck, plaintiff was injured; that plaintiff was not an employee of the defendant company; and that said defendant company, through its agent and servant, Stephan, was negligent in the following particulars:

1. By said Stephan operating said automobile in such a manner as to cause the same to suddenly jerk and throw plaintiff therefrom.

2. By said Stephan failing to guide and control said aid mobile so as to avoid running against and over plaintiff’s leg.

3. By said Stephan not stopping said automobile for plaintiff to alight therefrom.

. 4. By said Stephan ordering plaintiff to jump from said automobile while in motion.

Trial was had in the court below, which resulted in a verdict and judgment for plaintiff, from which judgment error is prosecuted in this court to reverse the same.

It is urged that the judgment is contrary to law. It is conceded that the doctrine announced in the case of Cleveland, Terminal & Valley Rd. Co. v. Marsh, 63 Ohio St., 236, is controlling, unless the fact that the defendant company promulgated a rule expressly instructing employees to permit none other than authorized employees to be and remain on the truck requires the above case to be distinguished from the ease at bar.

Quoting from the syllabus in Railroad Co. v. Marsh, supra.

“3. One who is invited by a servant of a corporation in charge of its work or service to assist him therein, and does so with some purpose or benefit to be subserved in his own behalf in addition to the purpose of so assisting, is not a volunteer, and is entitled while so assisting, to be protected against the negligence of the servants of the company.”

Quoting from the opinion, at page 245:

“Where a person at the request of a servant of a corporation, assists such servant in the performance of his work without any purpose or benefit of his own to be served by such assistance, he is regarded as a mere volunteer, and the requests to charge would be applicable to such a case. But where he has a purpose or benefit of his own to be served by such assistance, in addition to the purpose of assisting the servant, he is regarded as acting in his own behalf, with at least acquiescence of the company. A trespasser who is upon the company’s premises wrongfully, and a mere volunteer, stand upon substantially the same footing, and are entitled to recover only for such negligence as occurs after the servants of the company discover their perilous situation, that is for wilful or intentional injury. But there is a class between mere volunteers and trespassers and partaking somewhat of the characteristics of each, that is where the person assists the servant at his request, not only for the purpose of assisting in the work of the master, but also for a purpose and benefit of his own. In such cases it can not be said that he is wrongfully upon the premises, because he is invited by the servant in charge. The master may not have assented, but neither has he dissented, and being there upon the invitation of the servant in charge and there being no dissent of the master, he is regarded as being there by sufferance. And being there by sufferance he is rightfully there for the double purpose of aiding the servant, and thereby furthering the interests of the master, and of furthering his own private interests in his own behalf and for his own purposes and benefits. In such cases the person so assisting cannot be held to thereby become a servant of the master, because the servant inviting such assistance has no power or authority to employ other servants, and therefore the law of fellow-servants is not applicable. As such assistant is not a trespasser, and not a fellow-servant, and not a mere volunteer, the law assigns to him without name the position of one, who, being upon the premises of another by the sufferance of such other, performing labor or service for his own purpose and benefit in his own behalf, is entitled of right to be protected against the negligence of the owner of the premises or his servants. The case of Street Railway Co. v. Bolton, 43 Ohio St., 224, was decided upon this principle, although the principle is not very clearly stated in the report of the case.”

It is claimed that the promulgation of the rule amounted to a dissent on the part of the defendant. The plaintiff claims that he was a “licensee with an interest” under the rule in the above case. Does the rule — of which the plaintiff knew nothing, so far as the record shows — have the effect of changing the status of the plaintiff from that of a licensee with an interest to that of a trespasser or volunteer ? In this case it is conceded that the plaintiff was in the employ of -Stephan, and while so employed both were engaged in furthering the business of the master. We know of no authority for the doctrine that the promulgation of a rule for the direction and control of employees will excuse the master for the tort of the servant which results in injury to a third person, relieving the master of responsibility therefor. It seems to us that the authorities are to the contrary.

In the case of Harriman v. Railway Co., 45 Ohio St., 11, the court says at page 38 bf the opinion:

“ So it may be said in this case, that at most it appears that the defendant’s servants, while acting in its business and within the scope of their employment, deviated from the line of their duty to the defendant and disobeyed its instructions. Nevertheless, while so deviating and disregarding their instructions, they were still doing their employer’s work, though not according to their instructions. And see Quinn v. Power, 87 N. Y. 535.”

We quote from the syllabus in the ease of Barrett, Gdn., v. Railway Co., 106 Minn., 51, 18 L. R. A. (N. S.), 416:

“A master is responsible for tbe torts of his servant, done in the course of his employment with a view to the furtherance of his master’s business, and not for a purpose personal to himself, whether the same be done wilfully, but within the scope of his agency, or in excess of his authority, or contrary to the express instructions of the master.”

In a note appended to the last-mentioned report are cited many authorities in support of this doctrine.

It is our opinion, therefore, that the judgment is not' contrary to law under the doctrine announced in the Marsh case above referred to, and we are not disposed to depart from that doctrine, as urged upon us by counsel.

It is further urged that tbe judgment is against tbe weight of the evidence. We have examined the testimony of plaintiff and Stephan, the driver, and as we view it the circumstances developed by their testimony were such as to warrant the trial' eourt in submitting the ease to the jury. The jury resolved all the issues in favor of the plaintiff, and we think there is proof in the record to support that finding.

It is further claimed that the court erred in submitting to the jury the second, third and fourth specifications of negligence, respectively. From an examination of the proof we can not say that there was no evidence to support one or more of these specifications. Our disposition is that in the state of the record it is not material that some of the charges are not upheld by evidence, if others are, under the general principle announced in Sites v. Haverstick et al., 23 Ohio St., 626; Beecher v. Dunlap et al, 52 Ohio St., 64; McAllister v. Hartzel, 60 Ohio St., 69, and State, ex rel. Lattanner, v. Hills, 94 Ohio St., 171.

It is further claimed that the court erred in its failure to charge the jury as to the duty of the plaintiff in the event his own evidence raised a presumption of negligence. It was admitted that no request was submitted to the court to charge upon this subject, and in the absence of a request no prejudicial error can be successfully claimed for a failure so to do. State v. Schiller, 70 Ohio St., 1, 8, and State v. McCoy, 88 Ohio St., 447, 453.

It is further urged that the court erred in its charge on the subject of contributory negligence. The answer of the defendant contains a general charge of contributory negligence, followed by a specification to the effect that the plaintiff jumped, etc. The court in its charge limited the jury in a consideration of contributory negligence to a determination of the question of whether or not the plaintiff was negligent in the particuJ lar charged in the answer. We think the court was right. N. Y., C. & St. L. Rd. Co. v. Kistler, 66 Ohio St., 326, 333.

It is further urged that the court erred in refusing to give defendant’s request No. 7. This request required the jury to confine its deliberation upon the ease to a consideration of specification of negligence No. 1. In the view we have of the cáse, as before stated, we think it would have been error in the court to have given the same.

We find no error in the record prejudicial to the rights of the defendant, and the judgment of the court below is affirmed, with costs assessed against plaintiff in error.

Judgment affirmed.

Grant and Carpenter, JJ., concur.


author: Shohl, P. J.

text:
    PROOF IN PROSECUTION FOR ARSON OF VALUE OF PROPERTY DESTROYED.
    Court of Appeals for Cuyahoga County.
    Weisenberg v. State of Ohio.
    Decided, January 23, 1920.

      Arson — Prosecution for — Certificate of Appraisers Incompetent as to Value of Property Destroyed.

    1. Tbe actual value of insured property being important to show criminal intent necessary to establish the offense in a prosecution for arson on an indictment charging defendant with burning certain 'household goods with intent to prejudice the insurer, it is prejudicial error to prove the value of the property by the written eertiácate of appraisers, not sworn as witnesses, to the effect that in their opinion the value was a certain amount.
    2. If the certificate of appraisers was competent, secondary evidence of its contents was not admissible, without accounting for its absence, and proof of a diligent search to produce it at the trial.

      Rogers, Klein & Harris, for plaintiff in error.
   Shohl, P. J.

Heard on error.

Plaintiff in error, Louis Weisenberg, was convicted of arson on an indictment charging him with burning certain household goods with intent to prejudice the insurer.

The defendant, accompanied by his brother-in-law, left his residence in Cleveland at about 2 p. m. on the day of the fire. He went to Massillon - to attend a celebration, leaving Cleveland on the five-o ’clock train. At 8 ¡4-5 of that evening a fire broke out at the house in which he lived. It appeared that he had a policy of insurance in the sum of $500, and after, the fire, he made a claim against the company for the .full amount thereof, filing proof of loss aggregating $656.50.. The prosecution contended that the value of the insured property was less than $500, and that the actual loss was under $300. These elements were important to show the criminal intent necessary to establish the offense. It was proved in the following manner:

At the trial one Frank C. Carroll, a fire insurance adjuster, testified, over the objection of defendant, that an award, had been made by appraisers stating that in their judgment the actual loss was $287.50, and that the value of the property before the fire was $400. The award itself was not produced and the witness stated that to the best of his recollection it was in the hands of the attorney for the insurance company at Columbus.

The admission of the foregoing testimony constituted prejudicial error. It was not proper to prove the value of the goods by the written certificate of some person not sworn as a witness, to the effect that in his opinion the value was a certain amount. Such evidence is mere heresay and subject to all the infirmities thereof.

Tt is a fundamental principle that in a criminal prosecution the accused has not only the right to be heard by himself or counsel, but to meet the witnesses face to face, and to require the testimony against him to be under the sanction of an oath: and the witnesses must be subject to proper cross-examination. The admission of the contents of the certificate of award was in substance granting the state the benefit of the testimony of the appraisers without giving the accused the foregoing rights. 1 Greenleaf, Evidence (16 ed.), Secs. 99 and 99A; Farrington v. State, 10 Ohio, 354, and Hanley v. State, 12 C. C. 534; 5 Cir. Dec., 488.

But, even if the certificate was competent, secondary evidence of its contents was not admissible, without accounting for its absence and without proof that reasonable diligence had been exercised to secure its production at the trial. See Simpson & Co., v. Dall, 70 U. S. (3 Wall.), 460, 475; Brown v. Harkins, 131 Fed. 63; Kearney v. New York (Mayor), 92 N. Y., 617; 1 Greenleaf, Evidence (16 ed.), Sec. 563B; Clark v. Longworth, Wright, 189, and Cochran v. State, 25 C. C. (N. S.), 430.

If the document was in the hands of the insurance company at Columbus, the state had power to produce it.

In view of the foregoing it will not be necessary to consider the weight or sufficiency of the evidence.

The judgment will be reversed.

Hamilton and Cushing, JJ., concur.


author: Cushing, J.

text:
    FAILURE OF AN OFFICIAL TO PAY MONEY INTO THE TREASURY.
    Court of Appeals for Butler County.
    Theiss v. the State of Ohio.

    Decided, May 26, 1919.

      Embezzlement — Official Retains Public Money for Several Months — His Bailure to Pay it into the Gounty Treasury to be Gonsicterecl as Bearing on the Question of Intent — Section 289.
    1. Intent is a necessary ingredient in the crime of embezzlement.
    2. The holding of public money by an official and his failure to pay the same into the treasury every twenty-four hours, as required by •Section 289, General Code, are facts to be considered by the jury as evidence of an intention to convert such money to his own use and thereby embezzle it; and under Section 13674, General Code, the failure to pay over such money constitutes pruna facie evidence of its embezzlement.
    3. On the trial of a public official whose duty it was to pay public funds ■ received by him into the treasury each twenty-four hours, it is prejudicial error to charge the jury that the mere keeping of public ■money in such custodian’s house for a period of time, thus depriving the county of the use of such money, would be a conversion thereof and constitute embezzlement under Section 12873, General Code.
    W. C. Shepherd and John B. Connaughton, for plaintiff in error.

      Ben A. Bichley and Andrews & Andrews, for defendant in error.

       Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, November 11, 1919.

   Cushing, J.

Heard on error.

The indictment in this case charges that Jacob Theiss, being the superintendent of the infirmary of Butler county, Ohio, and being charged as such superintendent with the receipt of public money in the sum of $903.80, belonging to said county, did unlawfully and fraudulently embezzle and convert to his own use said money, which had then and there come into the possession and custody of the said Jacob Theiss by virtue of his said office, employment and position, and in his discharge of the duties thereof, and so that the said Jacob Theiss is guilty in the manner aforesaid of the crime of embezzlement of public money, so as aforesaid by him converted and used.

The facts developed at the trial were that Theiss sold produce from the infirmary farm, of which he -was superintendent, -about October, 1917, collected the money for same, but had not paid it into the county treasury, at the date of the indictment, May, 1918. Theiss admitted the sale of the produce and the collection of the money, but claimed and testified that on receipt of the money he turned it over to his wife for safekeeping; that she placed it in envelopes and locked them in a trunk in the house occupied by them on the infirmary farm; that he intended to pay the same into the treasury; that he did not loan, deposit or. use the same; and that he at no time intended to use or appropriate it to his own use or deprive the county of the money. On these facts the court charged the jury:

“The court therefore says to you that if Jacob Theiss did sell products of the infirmary farm and did not pay the money into the treasury as the law requires, as I have pointed out to you, but on the other hand knowingly and purposely kept the money in his' house from on or about October, 1917, until the date of this indictment in May, 1918, keeping it in his house in envelopes placed in a trunk therein, or keeping it elsewhere therein, that he had no lawful right to do so, and if he did so knowingly and purposely and wilfully and thus deprived the county of the use and benefit of said money during said period, that would be exercising dominion over that property in exclusion of the rights of the owner, which is Butler county. He wmuld be exercising an act of dominion over that money inconsistent with the right of the owmer, Butler county; he would be doing an unauthorized act depriving Butler county of said money for said time, and that w^ould be a conversion on his part of the money so kept and held by him, and if that state of facts has been proved or admitted, then the state has proved this averment of the indictment, to-wit: that he did convert the money so kept and held by him. This is true even though he intended to finally pay it into the treasury of Butler county, and even though he be now ready and willing to pay it into the county treasury.”

After the jury retired to consider the case, it returned and requested further instructions. ‘The record shows the following:

The Eoreman: ‘ ‘ There is a question in the minds of some of the jurymen as to what constitutes intent.”
The Court: “Can you make that question any clearer?”
The Foreman: “If Mr. Theiss held the money, whether he used it for diis own personal expenditures, or for himself, or whether he simply kept it, the question arises did he do that with the intention of defrauding the county? That is the point.”
The Court: “Now, Gentlemen, answering your question, if the state has proved beyond all reasonable doubt that the defendant knowingly, intentionally, and purposely used the money described in the indictment, or any part of it, for his own private use, that would be a conversion of it, and that would be embezzlement, provided the other elements of the crime are proved; even though he had no intent at the time to defraud the county out of the money.
“So I say to you further that if the State has proved.beyond all reasonable doubt that the defendant knowdngly, intentionally, and purposely, kept the money in his house from about October, we will say, until the date of this indictment, and thus deprived the county of the use of that money, that would be a conversion and embezzlement, even though he had at the time no intent to defraud the county out of the money, and intended to later on pay the money into the treasury, provided, of course, the other elements of the crime are proved.
“You may now retire, Gentlemen.”

The indictment charges that Theiss embezzled and converted to his own use money belonging to the county. The court charged the jury when it returned for instructions that if he kept the money in his own house and deprived the county of the use of that money, that would be a conversion and embezzlement, even though he had at the time no intention to defraud the county out of the money and intended to later on pay the money into the county treasury.

Section 289, General Code, requires the custodian of such funds to pay the same into the treasury each twenty-four hours. There is no penalty provided in this statute for failure to so do, neither does Section 12873 make it an offense to hold such public money.

Section 12873 specifies five a&ts which are defined as punishable offenses — embezzlement on the part of one charged with the -collection, receipt, safe-keeping, and disbursement of such public money:

1. To convert to his own use.

2. To convert to the use of any other person, etc.

3. To use by way of investment, etc.

4. To loan with or without interest, etc.

5. To deposit with a company, etc.

In its charge, above quoted, the court instructed the jury that the keeping of the money in his house, thus depriving the county of the use of that money, would be a conversion and embezzlement. This was error.

In the case of The State of Ohio v. Baxter, 89 Ohio St., 269, Baxter took the money, used it to pay his own debt, and later put other money of equal value in its place. The conversion and embezzlement of the money was completed as soon as Baxter used it for his own purpose.

In The State of Ohio v. Cameron et al., 91 Ohio St., 50, the court says, at page 56, referring to the Baxter cases

“We held that (1) the temporary appropriation of the public money by an officer to his own use, with the intention of restoring it, is -a -conversion within the meaning of that statute; (2) that he thereby violates that statute though he be not a defaulter, and (3) the return of the money will not expunge the guilt.”

In The State of Ohio v. Gross, 91 Ohio St., 161, the court uses this language at page 165:

“It is sufficient to say, however, that there was ample evidence to go before the jury upon this issue of fact as to when the intention to appropriate was formed. Like the question of agency, the question of intent is purely a question of fact, with which the courts have nothing whatsoever to do in the trial of a criminal cause. Such questions are to be determined by juries.”

A necessary ingredient in the crime of embezzlement is the intent or animus furandi to be determined by the jury.

“Still we may infer from the authorities, and from the reasons inherent in the question, that if the servant intentionally does with the property under his control what one must intend to do with property taken to commit larceny of it, he embezzles it, while nothing else is sufficient.” State v. Baxter, supra, at 273.

Had the court instructed the jury that holding of the money by Theiss from October to May, and his failure to pay it into the treasury as required by law could be considered evidence Of his intention to convert the money to his own use and thereby embezzle it, and that under Section 13674, General Code, the failure to pay over the money constituted prima facie evidence of its embezzlement, these things to be considered in connection with the fact that within the time stated he had collected and paid into the treasury other money collected by him, that would have left for the determination of the jury the question of fact as to whether or not Theiss had appropriated, or converted the money to his own use. But, to say to the jury that keeping the money in his house, thereby depriving the county of its use, was a conversion and embezzlement of it, took from the jury the right to determine the question of fact as to whether or not he intended to convert and embezzle it. That was erroneous and prejudicial.

The judgment and verdict of the court below, will be reversed and the cause remanded for a new trial.

;Shohl, P. J., and Hamilton, J., concur.