text:
    DAMAGES — ELEVATORS—NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    February 4, 1910.]
    Giffen, Smith and Swing, JJ.
    Cincinnati Traction Co. v. Edward Wm. George.
    1. Giving Jury Substance of Statute Declaratory of General Principle of Negligence in Operation of Defective Machinery, Notwithstanding Rule of Fellow Servant not Interposed Held not Erroneous.
    Where the block and pulley connected with the operation of an elevator are fastened in place by nails only, a finding by the jury that the insecure fastening was the proximate cause of the falling of the appliance, and injury to the plaintiff employed underneath, will not be disturbed.
    2. Finding that Insecure Fastening of Elevator Block, Secured only by Nails was Proximate Cause of Injury not Disturbed.
    Gen. Code 6242 (R. S. 4238o) is declaratory of the general principle of the law of negligence in the operation of defective machinery and appliances, and it is not error to give to the jury ,the substance of this section as the law of the case, notwithstanding the defense of negligence on the part of a fellow servant was not interposed.
    3. Verdict of $8,000 Remitted to $5,000.
    A verdict of $8,000 for injuries to an employe receiving only $1.75 per day at the time of an accident, who some months thereafter returned to work at $8 a week, and two years later was advanced to $10 a week, and four years after the accident was again receiving his old pay of $1.75 a day, is excessive and is reduced to $5,000.
    Error to common pleas court. '

      Joseph Wilby and George P. Stimson, for plaintiff in error.

      Cogan & Williams and Thos. L. Michie, for defendant in error.
   GIFFEN, P. J.

The particular negligence relied upon at the trial is charged in the petition as follows:

“That the block which held the pulley connected with the operation of the said elevator, which was fastened to a beam above the second floor of the said factory building, in the said elevator shaft, was carelessly and negligently attached to said beam by nails which were liable to rust and to work out and that. the same should have been bolted so as to secure the said pulley safely and prevent it from falling, and that the defendant wrongfully, willfully and negligently, caused, suffered and permitted the said elevator to become worn and defective, and unfit and unsafe to be used by continuing to use the said elevator with its pulley nailed instead of bolted as hereinbefore alleged, and by failing to inspect the condition of said pulley and the nails which supported it, and that such inspection, if properly made, would, have disclosed that the said nails were not sufficient to keep the said pulley in place and prevent it from falling; and that the defendant was negligent in allowing the said elevator to be used when the said pulley was nailed as aforesaid, and was not secured in its position by bolts, and in continuing the jise of the said elevator when the said pulley was nailed as aforesaid, and that by reason of the aforesaid negligence of the defendant the.said pulley fell as hereinbefore alleged, and struck the plaintiff.”

There is an averment also of knowledge on the part <)f the defendant of such defective appliance or the means of knowing; but no averment of want of knowledge or of equal means of knowing of the defect on the part of the plaintiff.

Soon after the trial ‘began the court permitted an amendment of the petition supplying this omission. This is clearly sanctioned by R. S. 5114 (Gen. Code 11363), and the only ground of complaint by the defendant was the refusal of the court to withdraw a juror and continue the case. It does not appear that the defendant was taken by surprise or otherwise unprepared to meet the issue tendered by the amendment, hence there could be no prejudice.

The error, if any, in refusing to give the seeond and fourth special instructions requested by the defendant, is cured by the last special instruction given at the request of the defendant before argument to the jury, because it' pertains to the same subject-matter and presents it to the jury in language more appropriate to the evidence.

The court in its general charge submitted to the jury certain issues which, although raised by the pleadings, were eliminated from the case not only by the undisputed evidence, but by the special instructions given before argument. A careful consideration of the whole charge convinces us that the jury were not misled thereby. In one instance, at least, counsel for de-' fendant invited the error by requesting the court to charge upon the question of negligence in the construction of the block and pulley when the undisputed evidence was that they were originally constructed, not by the defendant, but by -its predecessors.

The reference by the court to the “negligent operation” of the elevator by the defendant, was evidently intended to apply, not to the manner of using it at the time of the accident, but toils continued use, without repair, after being aware of the defect.

The most serious objection urged is the refusal of the court to instruct the jury .to return a verdict for the defendant, it being contended that the failure to fasten to the post with bolts the wooden block, holding the pulley, was not the proximate-cause of the same falling; but that the only cause was the unusual strain on the/ shifting cable resulting from the sudden fall of the south end of the platform (which was over thirty-one feet in length) to the floor below. This theory of the case receives less support from the defendant’s evidence than from that of plaintiff, because it proved not only that the shifting cable was not attached to the platform of the elevator, but that, its own superintendent of the mechanical department was, after a full investigation, unable to tell what caused the platform or the sheave wheel to fall.

The testimony offered by plaintiff tended to prove that the-block of wood was fastened to the upright timber by four or five wire nails, ten-penny in size, and that they were insufficient for the purpose. It is significant that the iron frame of the pulley was not severed from the wooden block to which it was fastened by two lag screws, but that the block parted front the timber to which it was fastened by the nails. It is true-that the lag screws extended into the post also about three inches, and it may be that the inferior quality of the timber-prevented it from holding securely either the nails or the lag screws, in- which ease there would be all the more reason for-using bolts. The defendant would not have performed its duty toward plaintiff by maintaining the pulley, directly over his head, at the minimum of safety. To afford security from accident, it is customary to estimate the working load as only one-third, one-fourth, or in some cases, only one-tenth part what would be required to produce fracture, because the material of whatever kind is liable to be imperfect. Besides, the strain, although slight in each operation of the elevator, would after years of continued use tend to loosen the nails until an ordinary pull would draw them out. The motion was properly overruled. Under the instructions given to the jury it is evident that they found the proximate cause of the accident to be, not the dropping of the south end of the elevator, but the defective manner in which the block and pulley were -attached and maintained. We are not prepared to hold that the jury were wrong in this finding.

It is claimed that the court erred in giving to the jury as the law of the case what in substance is Gen. Code 6242 (R. S. ■4238o), because there was no defense made of negligence of a fellow-servant. While this section was intended to avoid such a defense, it is declaratory also of a general principle of the law of negligence, which is applicable to this case, and the court did not err in stating it to the jury.

' Although-a jury has twice fixed plaintiff’s damages at $8,000, we think the amount excessive. He was receiving as wages at the time of the accident $1.75 per day. He lost seven months’ time, then commenced work at $8 per week, and continued for about two years, then received $10 per week until the fall of 1907, when he received and at the time of trial was receiving the same wages he did of the defendant. The evidence of any permanent disability to perform manual or mental labor or of any continuous pain and suffering is uncertain and speculative. We think the sum of $5,000 will afford ample compensation for injury, suffering and expenses incurred as well as time lost, and unless the plaintiff will consent to a remittitur of $3,000 the judgment will be reversed.

. Smith and Swing, JJ., concur.


source: Caselaw Access Project

author: GIFFEN,, P. J.

license: Public Domain

text:
    AUTOMOBILES — NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    November 13, 1909.]
    Giffen, Smith and Swing, JJ.

      Citizens’ Motor Car Co. v. Joseph Hamilton.
    1. Pedestrian Crossing Street in Front of Street Car without Ascertaining Imminence of Automobile Concealed by It is' not Guilty of Negligence per se.
    To cross a street in front of a street car without first ascertaining whether an automobile or other vehicle, proceeding in the same direction as the car and concealed by it, is running at a great and unlawful rate of speed is not negligence per se.

    2. Choice of Wrong Course by Pedestrian in Moment of Peril of Collision with Street Car or Automobile or Standing Still.
    A pedestrian, after having passed safely in front of a car, being confronted by an automobile running at great speed and but a few feet distant, is not to be held to the exercise of the same care in the choice of a way of escape that prudent persons would exercise were there no danger present; hence an instruction to the jury that a plaintiff thus situated could be charged with ordinary care only is relevant and free from error.
    Error to common pleas court.

      Robert Ramsey, for plaintiff in error.

      Theodore Horstman, for defendant in error.

      Affirmed, no op., Citizens Motor Car Co. v. Hamilton, 83 O. S. 450.

   GIFFEN,, P. J.

The plaintiff, Hamilton, could and did pass in safety over the street railway in front of a moving ear, and he was not negligent per se in thus crossing without first ascertaining whether an automobile or other vehicle was moving in the same direction with and on the other side of the street car at a dangerous and unlawful rate of speed. He had a right to assume that any such vehicle was running, if at all, at a lawful rate of speed.

When he reached the other side of the street railway he saw the automobile approaching at a dangerous and excessive rate of speed. Three alternatives were presented to him: either to stand still, retreat in front of the moving street car or attempt to pass beyond the automobile, any one and all of which were apparently dangerous, although had he remained standing-he would probably have avoided injury.

In such a situation of peril the rule stated in the third proposition of the syllabus of the case of Pennsylvania Ry. v. Snyder, 55 Ohio St. 342 [45 N. E. Rep. 559; 60 Am. St. Rep. 700], applies and the court so charged the jury; but it is claimed that the charge was not relevant to any issue tendered.

The plaintiff was required to exercise ordinary care, and the-instruction given was merely a definition of ordinary care on the part of a plaintiff, who, without his fault, was in a situation of unusual peril. He had reasonable grounds for believing that the course pursued would be the safest, and should not be charged with the consequences of error of judgment resulting-from the excitement and confusion of the moment. Iron Ry. v. Mowery, 36 Ohio St. 418 [38 Am. Rep. 597]; Pennsylvania Co. v. Langendorf, 48 Ohio St. 316 [28 N. E. Rep. 172; 29 Am. St. Rep. 553].

The judgment should be affirmed.

Smith and Swing, JJ., concur.


author: TAGGART, J.

text:
    COSTS AND FEES — POLICE.
    [Delaware (5th) Circuit Court,
    1909.]
    Taggart, Donahue and Shields, JJ.

      Delaware (City) v. W. B. Mathews.
    Chief of Police Cannot Collect Service Pees in State Cases.
    A chief of police, in the absence of a statute authorizing it, is-not entitled to payment for service of process issued by a mayor in state cases. Hence, costs collected for such services by such officer are not recoverable by him when turned over to-the city.
    [Syllabus approved by the court.]
    Error to common pleas court.

      —E. S. Owen, city solicitor, and F. A. Owen, for plaintiff in error.

      Marriott & Freshwater and Jewell <& Benton, for defendant in error.

      Affirmed, no op., Mathews v. Delaware, 82 Ohio St. 423.

   TAGGART, J.

The plaintiff in error, by its petition, seeks to reverse the judgment of the court of common pleas wherein a judgment was entered against it in -favor of the defendant in error. The principal question made in the case is that the judgment of the court of common pleas is contrary to law, and the said judgment should have been given for the plaintiff in error when the same was given for the defendant in error.

The action in the court of common pleas was one in which the defendant in error sought to recover from the city of Delaware the sum of $541.61, the amount of fees which he claims had been assessed, collected and turned into the treasury of the city of Delaware, being costs which had been assessed in cases of the state of Ohio against various defendants in the mayor’s court of the city of Delaware.

The plaintiff claims that he presented an itemized, statement and account of said fees claimed to be due him, and requested, through the city council, that the same be paid him, but the council rejected said claim and refused to allow the same.

The city by its answer admits that the plaintiff was the duly appointed, qualified and acting chief of police of said city; admits that he presented and filed with the city clerk an itemized statement and account of said fees claimed to be due him; admits that his claim was rejected; admits the corporate'capacity of the city, and denies all the other allegations, in the plaintiff’s petition.

From the record we learn that these fees were collected from various parties, and, with the knowledge and acquiescence of the plaintiff, were turned into the treasury -of the city of Delaware. The question in the case is: “ Can he now recover these fees?”

In the enactment of the municipal code in the year 1902„ the office of marshal in cities in the state of Ohio was abolished, and instead thereof the office of the chief of police was created. Instead of being an office for a fixed term and elected by the people, it was an office which was to be filled by appointment by the mayor.

i The legislature, in the municipal code, provided that the mayor of a city, when exercising the duties of a magistrate, both in a civil and criminal capacity, is to receive like fees as are allowed justices of the peace, E. S. 1745 (Gen. Code 4550). The chief of police, in cities having a police court, was to receive like fees as constables and sheriffs in the probate court and before justices of the peace. The marshal of a village, in executing processes issued to him by the mayor of the village, was likewise to receive the same fees as are taxed for a constable executing a process of a justice of the peace, E. S. 1850 (Gen. Code 4387), but there is no section of the statute which, in express terms, directs the payment to a chief of police of fees for the executing of any process issued to him by the mayor of the city in this class of cases. Whether this was through inadvertence of the legislature it is not necessary to conjecture. It is certain that no section of the statute is called to our attention, neither have we been able to discover any section of the municipal code which authorizes the payment to the chief of police of fees for executing such processes issued to him from the mayor of the city.

So that this record presents this state of facts: Fees were taxed for the execution of processes issued to this chief of police, and collected and paid by the parties against whom the costs were assessed, and were deposited in the treasury of the city of Delaware.

As this court vie\Vs the case, there was no right or authority for so taxing costs or collecting the same; and there was no right or authority for the plaintiff, as chief of police, receiving the same. But, as these costs and fees are in the city treasury, the plaintiff must recover by the strength of his right to the same, rather than- by showing that the city of Delaware has no right to hold and retain the same.

Our attention is called to the cases of Portsmouth v. Millstead, 28 O. C. C. 384 (8 N. S. 114). We think this case was properly determined, but not decisive of this case. This case simply decides the question that the chief of police, having received these fees or costs taxed and collected in his favor, the city of Portsmouth can not recover the same from him. If the plaintiff herein had collected these fees and the city of Delaware was seeking to recover the same, we would be 'dearly of the opinion that no cause of action existed in it? favor, and that it could not recover the fees. So, likewise, we are of the opinion that these costs, so collected and in the treasury of the city of Delaware, whether there rightfully or wrongfully, give no right of action to the plaintiff herein, even though they were taxed as costs and paid by the several parties, for there is no law or authority for so taxing or collecting the same from the several parties from whom they were collected.

It will, perhaps, be urged that there is . a construction of the statute, E-. S. 1837 (Gen. Code 4549), which ought to be given, which will sustain the judgment of the court of common pleas, that processes issuing out of the mayor’s court are to be directed to the chief of police or other police officer, and that, when he is called on to perform these duties, there is at least an implication that he should receive compensation therefor. But it has been repeatedly held that, where services for the benefit of the public are required by law and no provision for its payment is made, it must be regarded as gratuitous and no claim for compensation can be enforced.

We do not think this principle can now be seriously controverted, and, as we are unable to find any provision of law for the payment of this class of services, we think it must necessarily be held that the same was gratuitous.

There is no section of the statute to be construed. The legislature, in respect to chiefs of police in cities having a police court, has authoritatively spoken; so, also, in respect to marshals of villages; so, also, in respect to mayors when acting as magistrates; but the legislature has made no provision for the payment for the service of process by the chief of police, when issued by the mayor of the city in state cases. Whether this was an oversight of the legislature or whether it was intentionally omitted, it is not for us to guess.

In the case of Hough v. Manufacturing Co. 66 Ohio St. 427 [64 N. E. Rep. 521], in passing upon the attachment law of the state, the court employs some very pertinent and instructive language as to courts attempting to legislate something into a statute that has not been enacted by the-legislature.

We call attention to the case of Slingluff v. Weaver, 66 Ohio St. 621 [64 N. E. Rep. 574]:

“The object of judicial investigation in the construction of a statute is to ascertain and give effect to the intent of the law-making body which enacted it. And where its provisions are ambiguous, and its meaning doubtful, the history of legislation on the subject, and the consequences of a literal interpretation of the language may be considered; punctuation may be changed or disregarded; words transposed, or those necessary to a clear understanding and, as shown by the context manifestly intended, inserted.
“But the intent of the lawmakers is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the lawmaking body, there is no occasion to resort to other means of interpretation. The question is not, what did the general assembly intend to enact, but what is the meaning of that which it did enact? That body should be held to mean what it has plainly expressed and hence no room is left for construction.”

This was a case in which the legislature of'the state sought to enlarge the jurisdiction, of the Supreme Court, but, by its enactment, practically robbed it of all its jurisdiction except in extraordinary matters, and the court, in passing upon the Royer act, held that there was no place for judicial interpretation. ,,

So in this case, we think this is a matter that must be remedied by the legislature and not by judicial legislation.

Holding to these views, we think the judgment of the court ■of' common pleas was erroneous, being contrary to law; that the judgment should have been for the plaintiff in error and not for the defendant in error. For this reason, the judgment of the court of common pleas is reversed and remanded with costs. Exceptions noted. ^

Donahue and Shields, JJ., concur.


author: giffen' p. j.

text:
    PLEADING — STREET RAILWAYS.
    [Hamilton (1st) Circuit Court,
    July 3, 1909.]
    Giffen, Smith and Swing, JJ.
    Cincinnati Trac. Co. v. Marie Sanders.
    1. Negligence of Rider in Vehicle in Failing to Warn Driver of Approach of Street Car at Street Intersection Defeats Recovery Unless Defendant’s Motorman Saw the Peril in Time to Avoid Collision.
    In an action for personal injuries sustained in a collision between an electric car and a wagon at the intersection of two streets, an admission of plaintiff who was seated with the,driver that she saw the car coming nearly half a square away, but she made no attempt to warn the driver, raises a presumption of negligence on her part which would entitle the street railway company to an instructed verdict in its favor, in the absence of testimony that the motorman saw the peril of the plaintiff and failed to exercise proper care to avoid a collision.
    3. Ordinary Care of Street Railway to Driver of Vehicle is Only Required.
    Proper care on the part of a motorman meeting vehicles at street intersections is not “to do all he can to avoid a collision,” but merely to exercise ordinary care.
    3. Under General Denial Allegation of Plaintiff’s Negligence is ’ Misleading.
    Where a defense in an action for negligence is a general denial, an allegation that the accident was due solely to the negligence of the plaintiff serves no good purpose and is misleading.
    Error to common pleas court.
    The defendant in error was riding in a one-horse wagon with a driver, and in crossing Broadway at Eighth street a car coming from the north on Broadway collided with the-wagon and she was thrown ffom the wagon and injured.

      Kinkead, Rogers & Ellis, for plaintiff in error.

      Orville K. Jones and J. W. 0 ’Hara, for defendant in error.
   giffen' p. j.

The admission of plaintiff that while sitting on the seat with the driver she saw the approaching car nearly half a, square away, in the absence of any attempt to warn the driver,, raises a presumption of negligence on the part of plaintiff' which was not removed and entitled the defendant to an instructed verdict, unless there was testimony tending to prove that the motorman as alleged in the petition saw plaintiff’s: peril and failed to exercise ordinary care to avoid a collision. There was some such testimony and the motion was properly overruled. Upon that issue the negligence of the motorman was. the more proximate cause.

It was not his duty, however, as stated in the general charge, “to do all he could to avoid such collision.” He was required, to exercise a proper degree of care under the circumstances, to wit, ordinary care.

The charge of the court on the subject of burden of proof was misleading as the jury may well have inferred that the defendant was required to prove that the accident was due .solely to the negligence of the plaintiff or the driver as averred in its answer, although it denied all negligence on its part. Such an answer is itself misleading and serves no good purpose when the defense relied upon is a general denial.

, In view of negligence of plaintiff and the want of sufficient, evidence of negligence of the motorman after he became aware of the plaintiff’s peril, the motion for a new trial should have been granted; also on the ground that the verdict was not sustained by sufficient evidence.

Judgment reversed and cause remanded for a new trial.

Smith and Swing, JJ., concur.


author: VOORHEES, J.

text:
    DAMAGES — HIGHWAYS—INJUNCTION—LEVEES.
    [Fairfield (5th) Circuit Court,
    January Term, 1911.]
    Taggart, Powell and Voorhees, JJ.

      John C. Hoshor v. Fairfield Co. (Comrs.).
    1. Raising Grade of Public Highway to Prevent Overflow Cannot be Enjoined.
    The raising of the grade of a public highway which is subject to overflow in times of flood, cannot be enjoined by an adjacent property owner on the ground that the road was long ago improved to a definite and fixed grade and no steps have been taken by the county commissioners to appropriate the land which will be damaged thereby or to make compensation to the owner.
    2. Measure of Damages for Raising Grade of Highway to Prevent Overflow is Difference in Value of Land Before and After Improvement.
    In such a case the owner of the lands damaged by the improvement has an adequate remedy at law, the damage being complete at the time the improvement is complete and measured by the difference in the value of the lands before the improvement was made and afterward.
    [Syllabus by the court.]
    Demurrer.

      M. A. Daugherty, for plaintiff.

      T. T. Gourtright, Pros. Atty., W. H. Lane, for defendant.

      Affirmed, no op., Hoshor v. Fairfield Co. (Comrs.) 84 O. S. 503.

   VOORHEES, J.

This action is brought by the plaintiff against the county commissioners of Fairfield county, Ohio, to enjoin them from making certain improvements upon a public roadway. The object of the suit is to enjoin the county commissioners from making the improvements mentioned and described in his amended petition.

To the amended petition a general demurrer was filed. The demurrer was sustained and the plaintiff not desiring to further plead, the petition was dismissed at the cost of plaintiff; an appeal was taken and the cause comes into this court on appeal, and is heard on the demurrer to the amended petition.

It is contended by the plaintiff in support of his amended petition that the improvement contemplated by the commissioners, and which the plaintiff seeks to enjoin, is authorized by statute in 101 O. L. 139, Sec. 6778, which reads as follows:

“When found to.be conducive to the public health, convenience, or welfare, the county commissioners may cause to be located, established and constructed as hereinafter provided, a levee within the county, along or near a stream, watercourse, lake or body of water, for the protection of land from overflow. ’ ’

Gen. Code 7483 provides when county commissioners shall build embankments, etc.,

“When a principal public road in a county, except a turnpike road over which tolls are collected, is subject to overflow or inundation so as to render it, at any time, unfit for public travel, or hinder free and necessary transportation, the commissioners of such county may repair or reconstruct such road by changing the beds of small streams to avoid crossing, changing roads to avoid bridges when, the public travel would be better accommodated, or build an embankment or levee sufficiently elevated above all such overflows or inundation. The expense of such embankment, changes or levee shall be paid out of the money in the county treasury raised by taxation for road or bridge purposes."

It is under favor of Gen. Code 7483, that the proposed improvement by the county commissioners of Fairfield county was being made, that plaintiff seeks to enjoin in this action. The improvement is upon a public roadway which has been in existence many years; and the improvement proposed was to elevate the roadbed above high watermark. That is the object and purpose of the proceeding the commissioners had in contemplation in making the improvement mentioned and referred to in the plaintiff’s amended petition.

On the other hand, it is contended by the plaintiff that the improvement was such a one as is contemplated by 101 O. L. 139, Sec. 6778.

The contention of the plaintiff is that by making this change or embankment described in the amended petition, it will and does interfere wdth the flow of the waters of certain natural watercourses described in the petition, and by interfering with the natural flow of said waters the lands of the plaintiff are and will be damaged, and to avoid such damage this action was brought to restrain and enjoin the commissioners from further proceeding to carry out their plans and purposes in making the. improvement contemplated. '

There is no question about the road referred to being a public highway. There is no question from the allegations of the petition that the road is subject to overflow at times of high water in the streams described in the amended petition.

The contention of the plaintiff is that this public highway for sixty years at least, has been improved on a level with the surface of the ground, that it was so laid out and improved; a grade was established and when so laid out and graded, and ever since, it has been subject to overflow, the overflow perhaps ranging from five feet or more in times of freshet.

The claim of the plaintiff is that the road having been thus improved with a definite and fixed grade, the county commissioners, under neither of the sections of the statute or the General Code referred to, would have the right to make this improvement, if by so doing it would do substantial damage to the plaintiff, the owner of the land, without first taking’ steps to appropriate the land-or make provision for due compensation to the owner; and until this is done the plaintiff would have the right to proceed in a court of equity to enjoin the action of the county commissioners.

That seems to be the real controversy in this case, viz., whether this action can be maintained in a court of equity for the purpose of getting relief by injunction, the plaintiff having an adequate remedy at law.

If the action is one for injunction or equitable relief, then this demurrer should be overruled, but if the action is an action at law or one in which damages would afford the plaintiff a complete and adequate remedy, then this action could not be maintained as an equitable action for injunction.

Taking the view of the case that the court does — and I wish that the court may be clearly understood in the holding that it makes under the facts alleged in the amended petition, if true— ' we think the plaintiff would have a right of action for damages; and there is nothing appearing in the petition that such an action would not be an adequate remedy and afford the plaintiff complete relief.

This improvement is in the nature of a permanent improvement, just as much so as the building of an embankment for a. railroad. The damage to the plaintiff’s lands is complete when the improvement is completed. It is not a case or such action that the injury could be abated unless the road itself could be vacated and removed.

We recognize the rule that in certain actions where the damage is not complete when the improvement is made and finished, or ivhere the-injury can be abated by removing the cause, in such case the rule of damages is different from what it would be in this case; while we do not desire to lay down an inflexible-rule now as to the damages, we think it is proper for us to say, that in our judgment the rule of damages in a case like this would be the difference between the value of these lands before the improvement is made and their value afterwards; therefore,, we think the rule of damages is certain and easily ascertained.

Then, the question is presented, Is it such an action that the-plaintiff would have an adequate remedy at law? If the flood waters of these natural watercourses are interfered with by making this improvement upon the road, thereby changing the grade —counsel for the defendants criticises the claim of plaintiff that there was or could be an established grade in this or any public-highway. Perhaps it is not an established grade in the sense-that an established grade is made in an incorporated village or city, but, when a public road is laid out, established, opened and used, we think that that is an establishment of a grade of said road, and if it is afterwards changed, or it becomes necessary to change it by raising its bed or lowering it, or making substantial changes in the road, and by reason thereof damage results to an adjacent landoivner, he would have a right of action against the commissioners of the county. We do not agree with the contention of counsel that the damages allowed in the establishment of the road originally by the viewers in laying it out contemplates or covers all changes that may be made after-wards in that highway.

In this case, when this road was laid out and established, it was on a level with the surface of the land and did not interfere with the flow of the waters of these streams in ordinary flood. There was nothing to interfere with the flow of the-waters by reason of the road as established. Therefore, there was no damage resulting from that cause, but in the judgment of the commissioners they had decided that under Gen. Code 7483 there should be a change made by filling and raising the roadbed, or, in other words, a change of the grade of the road. It is a substantial change that has been made or about to be made, raising of the roadbed from four to five feet so as to put it beyond the flood waters of these streams in ordinary flood.

Now, the claim of the plaintiff is that when this is done substantial and material injury will result to his land. First, it will destroy about three acres of land, and about one hundred acres of land will be affected seriously and materially by reason of this improvement that the commissioners are contemplating. If that be true, there would certainly be a right of action in the plaintiff for damages against the county if such change were made.

We think the commissioners have the right to make the improvement contemplated and they cannot be enjoined from making it; but if substantial damage result to the plaintiff and his lands by reason of that change, the county must answer to the plaintiff in damages therefor; and' the fact that there were or may have been damages allowed in the original appropriation does not interfere with the plaintiff’s right to maintain this action for damages occasioned by this contemplated improvement.

The general principle, we think, is very well settled in actions of this kind in Goodall v. Crofton, 33 Ohio St. 271 [31 Am. Rep. 535], where the court lays down the rule and remedy to be followed. There is nothing appearing in this ease but what the remedy at law would be a complete and adequate one. There is no allegation here that the damages would be irreparable or an action at law inadequate.

We think this question is really settled in Ohio by Smith v. Wayne Co. (Comrs.) 50 Ohio St. 628 [35 N. E. Rep. 796; 40 Am. St. Rep. 699]. The allegations in the amended petition bring the case within the principle there recognized.

If it were necessary for the benefit of the public to have this embankment made when by so doing the right of the plaintiff to have the water of these streams flow in their natural course will be interfered with to his damage, the county will be liable and would be required to make him whole for whatever injury is done him by reason of the change in the grade of this road.

Reading simply from the syllabus of the case, Smith v. Wayne Co. (Comrs.) supra:

“Where the grade of a public road has been established, and the owner of abutting land has improved the same by erecting and maintaining buildings thereon with reference to-such established grade, and with reasonable reference to the prospective improvement of the road and its future enjoyment, •by the public, and where the board of county commissioners has improved the road by changing such established grade, an action for damages will lie in favor of the owner against the board of county commissioners, where, by such change of grade, the owner’s free and safe passage from the road to and from his land and buildings thereon has been obstructed or impaired. ’ ’

In the case, Smith v. Wayne Co. (Comrs.), supra, the injuries arose from interference with the plaintiff’s ingress and egress to his premises. We do not think there would be any difference in principle from that case than the one at bar. By changing the grade of this road the result is or will be that the flood waters of these streams before the improvement was made did no damage to the plaintiff’s land, but since the change the plaintiff’s land has been and will continue to be materially injured by the interference of the natural flow of the flood waters of these natural watercourses.

We think there is no question but the commissioners have the right to make the change or make the improvement, but they cannot do it to the injury of plaintiff without answering in damages.

When they make the change for the benefit of the public, the public or county must answer in damages to the landowner whatever that may be. This case, Smith v. Wayne Co. (Comrs.), supra, we think, is useful and really determines the whole question as to the law of the ease here involved.

There is a further principle recognized in this case that is useful, found in the concluding portion of the opinion at page 635, and is as follows:

“But it is urged in behalf of the defendants, that the petition in the case sets forth a tort, and that, therefore, the action is not maintainable against the board of county commissioners in their quasi corporate capacity. County commissioners have power ,to improve any state, county or township road, or any part thereof, by grading, paving, graveling, planking or macadamizing the same. R. ,S. 4829. Having exercised the power granted by statute of changing the grade of the road or highway, for the purpose of improving the same, there is no claim that the work was done in a careless manner, and no question, consequently, arises of negligence in the discharge by the defendants of their official function. In their official capacity, as the representatives of the county, having improved the road for the public benefit *by changing its grade, the sole question involved, viz., that of compensation, by the county, to the owner of the adjacent lands, gives rise to the inquiry as to any personal wrong, neglect, or default on the part of the commissioners. ’ ’

The suit, Smith v. Wayne Co. (Comrs.) supra, was a suit for damages, and the principle of law there recognized is in harmony with the case in Wrightsel v. Fee, 76 Ohio St. 529 [81 N. E. Rep. 975; 13 L. R. A. (N. S.) 233], and as is held in Vermillion v. Myers, 82 Ohio St. 414:

“A road supervisor and those working upon the rbad under his directions are, without regard to the motive which prompts them, liable in compensatory damages' for the diversion of water from its natural course casting it upon the lands of another, no right to make such diversion having been acquired by the public.”

Taking the view of the law we do in this case, we think the county commissioners in making this improvement, which is, or is supposed to- be, for the benefit of the public, if they have changed the established grade of this highway whereby the flood waters are thrown in a different way and manner upon die plaintiff's lands, and thereby have substantially injured the plaintiff, he has a right of action at law for damages, and we think his right of action would be an adequate one, that lie would be entitled to recover the full damage that he has sustained by reason of this act of the county commissioners; although it may be necessary, in the interest of the public, that it should be done, yet it cannot be done to the injury of the plaintiff without answering to him in damages.

Therefore, believing there is an adequate remedy at law, ' the demurrer to the amended petition will be sustained, and if the plaintiff does not desire further to plead, the petition will be dismissed at the cost of plaintiff. Excepitons.

Taggart and Powell, JJ., concur.


author: POLLOCK, J.

text:
    DEFECT IN SIDEWALK.
    [Trumbull (7th) Circuit Court,
    March 9, 1911.]
    Pollock, Metcalfe and Norris, JJ.
    Mildred Gibbs v. Girard (Vil.).
    Liability of Municipalities for Defects in Sidewalks Does not In- " clude Slight Depressions of not More than Two Inches.
    Reasonable care is all a municipal corporation is charged with in the maintenance of its sidewalks, and it is not liable for slight depressions not exceeding two inches, unless there be something in the condition of the depression specially calculated to cause an injury.
    [Syllabus by the court.]
    Error to common pleas court.

      Pierson & Casey, for plaintiff in error:
    Duty and responsibility of city, Cardington (Vil.) v. P’redericks, 46 Ohio St. 447 [21 N. E. Rep. 766] ; Wood, Nuisances Sec. 307; Shearman & Redfield, Negligence Sec. 350; Hewison v. New Haven, 34 Conn. 136; 28 Cyc. 1341; Dayton v. Glaser, 76 Ohio St. 471 [81 N. E. Rep. 991; 12 L. R. A. (N. S.) '916].
    Condition of walk, and liability to cause injury, question of fact for the jury. 15 Am. & Eng. Enc. Law 440, 441; Shearman & Redfield, Negligence Sec. 350; Goodfellow v. New York, 100 N. Y. 15 [2 N. E. Rep. 462] ; Bullock v. New York (City), 99 N. Y. 654 [2 N. E. Rep. 1] ; Heckman v. Evenson, 7 N. D. 173 [73 N. W. Rep. 427] ; Williams v. West Bay City, 126 Mich. 156 [85 N. W. Rep. 458] ; Fordham v. Gouverneur (Vil.), 160 N. Y. 541 [55 N. E. Rep. 290]; Lawrence (City) v. Lift ell, 9 Kan. App. 130 [58 Pac. Rep. 495] ; Osage (City) v. Brown, 27 Kan. 74; Laurie v. Ballard (City), 25 Wash. 127 [64 Pac. Rep. 906] ; Keen v. Havre de Grace (City), 93 Md. 34 [48 Atl. Rep. 444]; Ladrick v. Green Island, 103 App. Div. 71 [92 N. Y. Supp. 622] ; Dickerman v. Weeks, 108 App. Div. 257 [95 N. Y. Supp. 714; Corson v. New York (City), 113 App. Div. 679 [99 N. Y. Supp. 921] ; Saivyer v. Newburyport (City), 157 Mass. 430 [32 N. E. Rep. 653] ; Bullock v. New York, 99 N. Y. 654 [2 N. E. Rep. 1] ; Glantz v. South Bend, 106 Ind. 305 [6 N. E. Rep. 632] ; JJrtel v. Flint City, 122 Mich. 65 ¡ SO N. W. Rep. 991] ; Bhyner v. Menasha (City), 107 Wis. 201 [83 N. W. Rep. 303]; Baxter v. Cedar Bapicls, 103 Iowa 599 [72 N. W. Rep. 790] ; Aurora_(Ciiy) v. Cox, 43 Neb. 727 [62 N. W. Rep. 66] ; Wilkins v. Flint City, 128 Mich. 262 [87 N. W. Rep. 195] ; Patterson v. Council Bluffs. 91 Iowa 732 [59 N. W. Rep. 63] ; Wedderburn v. Detroit, 144 Mich. 684 [108 N. W. Rep. 102]; Loan v. Boston, 106 Mass. 450; McLean v. Boston, 180 Mass. 69 [61 N. E. Rep. 758] ; Lamb v. Worcester, 177 Mass. 82 [58 N. E. Rep. 474] ; Bedford v. Woburn {City), 176 Mass. 520 [57 N. E. Rep. 100b] ; Welsh v. Amesbury, 170 Mass. 437 [49 N. E. Rep. 735]; Watertown v. Greaves, 112 Fed. Rep. 183 [50 C. C. A. 172],
    The city was, under the circumstances, chargeable with notice of the condition of this sidewalk. 'Denver v. Hyatt, 28 Colo. 129 [63 ’Pac. Rep. 403 J ; Turner v. Newbury, 109 N. Y. 301 [16 N. E. Rep. 344; 4 Am. St. Rep. 453] ; Mathews v. Toledo, 11 Circ. Dec. 375 (21 R. 69); affirmed, no op., Toledo v. Mathews, 65 Ohio St. 561; Cincinnati v. Frazer, 9 Circ. Dec. 487 (18 R. 50); Alliance v. Campbell, 6 Circ. Dec. 762 (17 R. 595); affirmed, no op., Alliance v. Campbell, 53 Ohio St. 650; Eunz v. Troy, 104 N. Y. 344 [10 N. E. Rep. 442 ; 58 Am. Rep. 508] ; Weed v. Ballston (Vil.), 76 N. Y. 329; Hodges v. Waterloo, 109 .Towa 444 [80 N. W. Rep. 523]; Crumlich v. Harrisburg, 162 Pa. St. 624 [29 Atl. Rep. 707] ; Lambert v. Pembroke, 66 N. H.' 280 [23 Atl. Rep. 81] ; Uriel v. Flint, 122 Mich. 65 [80 N. W. Rep. 99.1]; Padelford v. Eagle Grove, 117 Iowa 116 [91 N. W. Rep. 889] ; Carroll v. Allen, 20 R. I. 144 [37 Atl. Rep. 704] ; Downs v. Smyrna (Comrs.), 2 Penn. (Del.) 132 [45 Atl. Rep. 717] ; Lord v. Mobile, 113 Ala. 360 [21 So. Rep. 366],
    . Gillmer & Gillmer and Wade R. Deemer, for defendant in error.
   POLLOCK, J.

This case is in this court on petition in error to reverse the judgment of the court of common pleas of this county.

The plaintiff in error brought suit in the court below to recover damages for a personal injury she claims to have sustained by reason of a defective sidewalk in the streets of defendant. village.

She claims that after night, on August 7, 1909, she was going north on the west side of State street in said village, at a point between Elm and Cherry streets, and in stepping over a depression of about two inches in the pavement she fell and was injured.

She further says that her injury was caused by the negligence of the defendant in permitting this depression to be and remain in said sidewalk.

To this petition the defendant’s answer is a denial that the street was in this condition, and a denial of any act of negligence on the part of defendant, and also alleges contributory negligence on the part of plaintiff.

To the latter defense plaintiff filed a reply denying contributory negligence.

In the trial of the case in the court below, at the close of plaintiff’s testimony, on motion of defendant the court direeted a verdict in favor of defendant, and the sustaining of this motion is assigned as error in this court.

The testimony in this ease tends to show that at the point claimed in the petition, as you go north, you pass over a concrete pavement, and just north of the concrete pavement is a flagstone pavement; that at the time of the injury claimed the flagstone pavement was two inches lower than the concrete; that this depression in the pavement had existed for a long time, at least a year or more; that the plaintiff was a stranger in the village of Girard, and had no knowledge of this depression except what she had or should have had by passing south over it a short time before the accident. That plaintiff, in walking, turned her toes out more than is usually done. That on this night between nine and ten o’clock she was going north over this pavement, and in stepping from the concrete pavement on to the flagstone she fell and was injured. That at the time of the injury it was dark at this point, either because the street lights were not burning, or from some other cause.

There was also testimony tending to show that at least two other persons, prior to this suit, had stumbled ovep this depression, and that one person had fallen.

Now, these are substantially the facts in this case, and a motion to direct a verdict for the defendant was insisted upon in the court below, and is insisted on here, for three reasons:

First. That the plaintiff by her own testimony has raised a presumption of - contributory negligence on her part..

We think, so far as the contributory negligence on plaintiff’s part is concerned, there was not such a presumption as would have justified a trial court in directing a verdict.

Second. It is urged that the testimony in this ease fails to show any express or implied, notice to this defendant of the condition of the sidewalk.

We think the testimony shows that the depression had existed for such a length of time that it was at least a question for the jury to determine whether or not the village had constructive notice of the condition of the sidewalk.

Third. That the defect in-the sidewalk, as shown by the testimony, is, as a matter of law, not such a defect that plaintiff can recover, and that the court was authorized, as a matter of law, to say that the village was not negligent in permitting such a defect in the street.

This is the real question in this case. Is a court authorized to say, as a matter of law, that a village is not negligent in permitting a depression of two inches in its sidewalk?

It is a duty imposed upon a municipality by statute to keep the sidewalks within a corporation open, in repair, and free from nuisance. Whether permitting a particular defects in a sidewalk constitutes negligence on the part of a village is a question for the jury, unless the court can say that the defect causing the injury to one using the sidewalk in an ordinary way, could not reasonably have been anticipated from its existence. The law imposes upon a municipality the duty only of using ordinary care to see that its streets and sidewalks are safe for travel, and if it uses this care it is not liable.

“A' municipal corporation is charged with the duty of keeping its streets free from nuisance and in a reasonably safe condition for travel in the usual modes, but It is not an insurer of the safety of persons using them, and when they are in that condition it is not chargeable with negligence, although an accident happens in the use of the streets.” Dayton v. Glaser, 76 Ohio St. 471 [81 N. E. Rep. 991; 12 L. R. A. (N. S.) 916].

This was an action seeking to recover damages against the city of Dayton caused to one riding in a vehicle in a driveway on the street, by the wheels of the vehicle dropping into ruts that had been worn in the pavement. The trial court, at the close of plaintiff’s testimony, made the same order as was made in the case at bar, and such judgment of the trial court was ■affirmed by the Supreme Court.

In the opinion in that case the court cite and quote from the case of Beltz v. Yonkers, 148 N. Y. 67 [42 N. E. Rep. 401], which holds that the city was not liable for an accident which happened on a sidewalk where the depression in the sidewalk was two and one-half inches deep.

They also cite the ease of Grant v. Enfield, 11 App. Div. 358 [42 N. Y. Supp. 107], where the court reversed a judgment for error in denying a nonsuit where the depression was only three or four inches deep.

They further cite Morgan v. Lewiston, 91 Me. 566 [40 Atl. Rep. 545], where the court held, as a matter of law, that a sidewalk was in reasonably safe condition where at the junction of two sidewalks at the intersection of two streets there was a depression of five or six inches.

In this case counsel on both sides have been very diligent in citing authorities bearing upon this question. Authorities have been cited where municipalities have been held for defects in sidewalks of less than two inches; others have been pointed out where the defect has been much greater, and it would be impossible to reconcile all of these cases.

In the ease of Terry v. Perry, 199 N. Y. 79 [92 N. E. Rep. 91], they lay down a rule which in a measure tends to distinguish these cases, or at least distinguish the New York cases.

“A municipality is not as a matter of law responsible for injuries arising from slight depressions or difference in grade in sidewalks, except when the depression is peculiar and specially calculated to result in injury to pedestrians.”

We think this is the true rule which should govern in •cases of. this kind.- Reasonable care does not require the authorities of a municipality to anticipate that injury will occur "to persons walking on the sidewalk, from a slight depression of two inches, unless there be something in the depression peculiarly; calculated to cause an injury.

The law does not require perfectly smooth sidewalks, and that the sidewalk be free from every inequality. Such a degree of care would be beyond the reasonable requirements on the part of a village, and common observation teaches us that it does not obtain on the sidewalks in any village.

In this. case there was nothing peculiar or special about this depression.. The only condition out of the ordinary was that the testimony showed that it was dark on the pavement, at this point.

When the question is debatable whether or' not a claimed defect is negligence, evidence of prior accidents may be received for the purpose of showing that by actual experience the depression was calculated to cause the accident; but the evidence of prior accidents cannot be sufficient of itself to sustain a charge of negligence, and to lay the foundation for damages, because of the maintenance or mere peculiar construction of the pavement or sidewalk. There must be evidence of such a fundamental condition of things as will at least permit the inference that the party complained of has failed to discharge’ the duties reasonably and fairly imposed upon him by law. Gastel v. New York, 194 N. Y. 15 [86 N. E. Rep. 833; 128 Am. St. Rep. 540]; Terry v. Perry, supra.

In this case the depression was ih a public street. There-was nothing peculiar or special about it. At the north edge of' the concrete pavement the flag pavement had either been laid or sunk two inches lower. It was a public street where there was much travel every day, and it had been there for sometime. The mere fact that three persons, prior to this accident, had stumbled or fallen would not be sufficient to draw the inference that it was peculiarly dangerous.

The court below held as a matter of law that this sidewalk was in a reasonably safe condition, and in so holding we-And no error.

Metcalfe and Norris, JJ., concur.


author: SMITH, J.

text:
    STREET RAILWAYS.
    [Hamilton (1st) Circuit Court,
    July 24, 1909.]
    Giffen, Smith and Swing, JJ.
    Interurban Ry. & Term. Co. v. Frederick J. Treuheit.
    Motorman Leaving Scheduled Meeting Point Before Arrival of Car He was to Meet cannot Absolve Himself from Neglect by Assuming Arrival of Car by Presence of Regular Crew Thereat.
    A motorman leaving a scheduled meeting point for cars upon seeing the regular crew of the car he was to meet, assuming that the car had arrived, whereas such car was approaching in charge of another crew which was not an uncommon occurrence, cannot absolve himself from negligence and recover for injuries sustained in the collision resulting therefrom, especially since, in going up a grade at the rate of six miles per hour he could see the roof of the approaching car some distance ahead of him, but failed to give attention to the movement of the car.
    Error to common pleas court.
    The defendant in error, plaintiff below, while employed as a motorman by the railway company, was severely injured in a collision, due to the fact that he left the car barn under the impression that the car which he was scheduled to meet at that point had arrived, whereas the regular crew on the approaching car, whom he saw at the car barn, were not on that run on that day. The jury gave him a verdict of $3,500

      Frank F. Dinsmore, for plaintiff in error.

      G. 3. Schneider and James E. Robinson, for defendant in error.
   SMITH, J.

The main ground of error urged and relied upon in the above case is that the verdict and judgment of the trial court is pot sustained by sufficient evidence.

¥e are of the opinion that his objection is well taken and that the judgment should be set aside.

Treuheit was due at Coney Island barn at 7 :20 A.-M. on the morning of the accident, where he was to wait, meet and pass run No. 1, the ear from Bethel, which reached the barn at 7:22.

It therefore made no difference to him, as was testified, whether the car upon which Thornton and Baker were motorman and conductor, was an extra car or not. The schedule in this regard had not been changed, and while the evidence is con,.fiicting as to the matter of orders between the / dispatcher and the conductor, yet under rule 27 issued by the company it was the duty of the motorman to be vigilant and cautious and not depend entirely upon the signals, brakes, or rules of the company for safety, and therefore we do not think that he could or should have relied upon the fact that he saw Purcell and Newton, who usually had this run, at the barn, to absolve himself from his own neglect, if in leaving the barn before the ear from Bethel arrived, he afterwards- collided with it. The evidence shows that crews are often changed and new men placed upon runs, and it would seem that the schedule as adopted by the company should control.

Further, we are of the opinion that after leaving the Coney Island barn the testimony shows that by the exercise of ordinary care and prudence he could and ought to have discovered the presence of the car from Bethel in time to have avoided the collision. He was going on an up grade at about six miles an hour and saw the roof of the approaching car some distance ahead of him but failed, as we think the evidence discloses, to have exercised the ordinary care and prudence he should, for while he testifies he reversed the motor, yet there is strong evidence that he was not giving the attention he should to the movement of the car, and that after the accident an examination of the controller showed the reverse handle was in the position of going ahead, running east.

It is unnecessary m this view of the case to consider other errors assigned, and as the judgment of the court below is not sustained by sufficient evidence the same is reversed.

Qiffen and Swing, JJ., concur.


author: PER CURIAM.

text:
    CANALS — PARKS—STATE.
    [Licking (5th) Circuit Court,
    March, 1910.]
    Taggart, Donahue and Voorhees, JJ)
    Columbus, Newark & Zanesville Elec. Ry. et al. v. John Nelson et al.
    1. Fee to Land Used for Canal Reservoir Becomes Appropriated by State’s Occupation, Regardless of Owner’s Failure to Obtain Compensation.
    A reservoir used as a feeder for an Ohio canal became a part of the canal system of the state, and the occupation of the land by the state for such a purpose amounted to an appropriation of the land, the fee simple title passing to the state regardless of failure on the part of the owner to make application for compensation therefor.
    2. Land does not Revert by Abandonment of Canal.
    The abandonment of a canal does not cause the title to the land belonging thereto to revert to the original owners, their heirs or devisees, but the title remains in the state until granted out by proper conveyance.
    3. Banks of Canal Belong to State, Abutter’s Use is by Sufferance Only. ■
    The banks of a canal, and of its feeders and reservoirs, constituted a necessary part of the canal, and in the absence of an agreement to the contrary formed a part of the original appropriation by the state; and the continued use of this land to the water’s edge by the abutting owners was not a matter of right, but of sufferance on the part of the state.
    4. Extent of Land Banks of CIanal Reservoir Comprise Storage Level and Right of Way Around.
    The appropriation of land for the banks of a canal reservoir included a space of a sufficient -width to hold the waters up to the storage level and protect surrounding 'property and afford the agents of the state a right of way over and around the property for purposes of maintenance.
    5. State Board of Public Works cannot Lease, for Building Purposes, Bank of Canal Reservoir Devoted to Public Park Purposes.
    The general assembly having set apart the Licking reservoir as a public park and pleasure resort for the people of the state generally, the state board of public works is without authority to grant a lease of its banks for building purposes that will interfere with the free and uninterrupted use thereof by .the people and the agents of the state.
    [Syllabus by the court.]

      Error to common pleas court.

      Fitzgibbon & Montgomery, W. B. Pomerene and Durban <& King, for plaintiffs in error.

      Flory & Flory, for defendants in error.
   PER CURIAM.

The Columbus, Newark & Zanesville Electric Railway Company and the Ohio Electric Railway Company filed their joint-petition in the common pleas court of this county against John Nelson and Lena Nelson and asked that said defendants be enjoined from bringing building material upon certain real estate described in the petition and from digging up, cutting or destroying the ground or soil thereof, and from erecting thereon buildings, constructions or frameworks of any kind, and averring that the plaintiffs are the owners of said ground upon which the defendants purpose to erect such buildings and structures, said land having been conveyed to said plaintiffs by Lindsay Bounds and others, and that it constitutes a part of what is now commonly known as Buckeye Lake Park.

To this petition Lena Nelson filed an answer and cross petition admitting that the plaintiff, the Columbus, Newark & Zanesville Electric Railway Co., is a corporation and owns certain real estate known as Buckeye Lake Park, located in Buckeye Lake, admitting that the Ohio Electric Railway Company is a corporation, and denying all the other averments of the petition, and particularly that the plaintiffs or either of them have any interest' in or to -the land described in the petition upon which she was conducting building operations, and averring the deed from Lindsay Bounds and others did not convey said lands to said plaintiff, but on the contrary expressly and definitely excepted the same therefrom in the following language, to wit, “Excepting from the above real estate any right, title or interest that the said state of Ohio may have acquired in or to the second parcel herein by reason of the location of the Licking reservoir thereon; excepting also from said covenants whatever right or title the state of phio has in the first parcel abbve said water line herein mentioned for retaining banks of the waters of said reservoir”; and further averring that she is the owner by lease from the state of Ohio of the premises in dispute so excepted from the operations of said deed. And for cross petition the said defendant avers that Buckeye lake, formerly known as the Licking reservoir, constitutes a part of the canal system of the state and that said body of water and lands covered by said waters and the lands adjacent thereto, are all owned by the state of Ohio and under the management of the state board of public works. That by recent legislation said Buckeye lake and lands adjacent thereto have been dedicated to the public as public parks for pleasure resort, fishing, boating and other recreations, and that the said board of public works has executed a lease to this defendant for the property so owned by it, and that it is upon this land and not other land that she had started the construction of the same and had largely accomplished said construction when the plaintiffs with a large force of workmen by force and violence entered upon these premises, tore up the platform of the pier, pulling up the tiling and stakes which constitutes the lower part and support of the pier, destroying the lumber out of which it was constructed and carried the same away and converted it to their own use, and tore the cottage and boat house from their foundations and moved the same from the land of this defendant to lands owned by the plaintiffs. And that the plaintiffs threaten and will unless restrained by the court again enter upon the lands of this defendant and destroy any buildings or piers she may erect thereon, and thereby deprive her of the use and profits of the same to her irreparable injury, for which she has no adequate remedy at law, and prays for a perpetual injunction and for a decree quieting her title in said premises.

To this cross petition the plaintiff filed an answer averring the ownership of these premises in plaintiffs and denying that defendants have any right, title or interest'thereto. The cause was heard upon evidence in the court of common pleas and now comes to this court upon appeal, and has been submitted upon the' transcript of the evidence taken in the common pleas court with all the exhibits and such additional evidence as parties desired to offer.

It appears from the evidence that the state of Ohio commenced about the year 1828 and completed about 1832 the Licking reservoir as a feeder to the canal system under the authority of an act of the general assembly of Ohio, passed April 4, 1825. By the provisions of Sec. 8 of that act, it appears that the state might lawfully enter upon and take possession of and use all and singular any lands or water, streams or materials necessary for its canal system, for the purpose of making any and all such canals, feeders, locks, dams, etc., and that where such property taken should not be given or granted to the state that it should be the duty of the canal commissioners on application by the owners of said lands, waters, streams and materials to appoint a board of appraisers to make a just and equitable appraisal of the loss and damages to such private owners, and it was made the duty of said appraisers to enter an apt and sufficient description of the premises appropriated for the purposes aforesaid in a book to be provided for that purpose. It further provided that the fee simple of said premises should pass to and be vested in the state.

In the case of State v. Railway, 53 Ohio St. 189 [41 N. E. Rep. 205], it is held that by force and provisions of Sec. 8, above referred to, that wherever the state actually occupied a parcel of land for canal purposes, a fee simple title thereto at once and by virtue alone of such occupancy, vested in the state. It is said, however, by counsel for the plaintiff, that this reservoir is not a canal, and therefore it is not within the provision of this legislation, but Sec. 8 hot only provides for canals, but for feeders, dikes, locks, dams and such other works and devices as the canal commissioners may think proper. So that this reservoir being used as a feeder of the canal becomes a part of the canal system of Ohio, and the occupation of said land by the state of Ohio for such purposes is an appropriation of the land, and the fee simple passed to the state with the right only in the original owner to make application for damages and compensation therefor, and his failure to make such application for damages and compensation would in no wise affect the title of the state thereto. It is suggested, however, that before such title could pass to the( state that there must be an apt and sufficient description of the premises, but the statute does not so provide. The statute provides that the canal commissioners and each of them or any superintendent, agent or engineer employed by them might enter upon and take possession of lands, waters, streams and materials necessary for canal purposes and does not seem to provide that a description thereof shall be given, and nothing further is required beyond the actual occupation of the same, but where damages and compensation have been demanded and the board of appraisers have considered such claims then it becomes the -duty of such board of appraisers to make an apt and sufficient description of the premises in a book to be provided for that purpose.

So that unless the owners of this property actually apply to the state for compensation and damages there would not be any description of the land as a matter of necessity, but only such description as the canal commission might have for its own use and convenience. The appropriation consists in the taking possession of the land and the mere fact of taking possession for the purpose mentioned in the statutes passed the fee simple title to the state, and a later abandonment of the-canals would not revest the title in the original owner or divest the state of its title thereto. The fee simple having once lodged in the state remains there until it be granted out of the state by proper conveyance-.

Another contention is that actual occupancy and actual taking is required in order to vest the title in the state, and therefore the adjacent banks which confine the waters in the canal were not actually or physically in possession of the state, and the title did not pass to the state and it can claim no more than the lands actually covered by the waters.

In the case of Hatch v. Railway, 18 Ohio St. 92, the Supreme Court of Ohio held in the case of a private canal company that an appropriation of land by a canal company for the purpose of a canal in the absence of any contract or statute to the contrary will be presumed to have included land for a berme bank as well as a tow path and the exclusive power of the company over the land necessary for such bank is the same whether it consists of a natural or artificial deposit of earth. It would seem to us that the power to appropriate land upon which to store water without carrying with it the right to the retaining banks would be a useless grant of power. In the case of Hatch v. Railway, supra, the Supreme Court, page 125, says:

“A berme bank for the canal was necessary for the uses of a canal; and whether it consisted of a natural or artificial deposit of earth can make no difference. It must have formed a part of the original appropriation by the canal, unless there were a special agreement to the contrary. * * * The plaintiff had full opportunity to show a special agreement to the contrary, if such existed; and if, during the existence of the canal, without such contract, he had the use of the land up to the water’s edge, it was as a matter of sufferance and not of right.”

In the case of Carpenter v. State, 12 Ohio St. 457, it is held that no record or writing is necessary to show the appropriation of such berme bank by the state; on the contrary, it is presumed in the appropriation of land for canal purpose. It is claimed that this is not a canal proper, but only a reservoir, and was not intended at the time of the appropriation to be used for navigation but for supply water only. The statute, however, included feeders as well as the canal proper; and feeders or reservoirs equally require retaining banks— otherwise the appropriation is useless.

We are of the opinion that this appropriation by the state only the land actually . covered by these waters but also a berme bank of sufficient- width not only for the purpose of retaining the waters but for such other legitimate purposes for which it may be used, including not only the duty to protect adjacent land owners, but also to protect the reservoir from invasion from adjoining proprietors from any natural cause that might affect the same, and also for the purpose of affording a light of way to the agent of the state over and around this property for the purpose of proper maintenance thereof.

We are of the opinion that this appropriation by the state of lands for reservoirs or feeders for the canals included berme banks, and that they would necessarily be included in ascertaining the compensation and damages that might be allowed therefor.

It is hard for this court to determine from the evidence before it what the actual width of this berme bank is. The survey the state made under the provisions of R. S. 218-223 is of no value whatever. The state at this time can not arbitrarily determine how much land was originally appropriated. If the surveys had been made at the time of the appropriation, then the landowners could have obtained compensation and damages therefor and such surveys might control, but at this, time the court must determine as best it can from the evidence, considering the nature and extent of the improvement and requirements of the state, the minimum amount of land that would necessarily be included in the appropriation for berme bank purposes. It does appear from the evidence that the original provision for berme bank for canal purposes was never less than 12.12 feet, and it would seem reasonable to conclude that this minimum must have been recognized then as the amount necessarily included for this purpose, -and in view of the purpose to be served that amount is not excessive. This reservoir was built for the storing of large quantities of water, and wherever it was necessary to construct an artificial berme bank the state did construct such a bank of this or greater width, and this alone ought to have been sufficient notice to the landowners that the state was claiming that a bank of this, width was necessary for its purpose. Undoubtedly the owner eould have recovered compensation and damage for that extent of bank in addition to the land' actually covered by the water, if such application had. been made to the board of appraisers.

It is further insisted that this appropriation was made by the state at the time the United States owned the land and therefore eould not be operative as against sovereignty, but when the United States conveyed by patent deed to the original predecessor in title to the plaintiff such predecessor in. title then had the right to make his application for compensation and damages, for at least the right of the state to appropriate would then obtain, and the state at that time was in possession of this property and has ever since remained in possession; the fact that he may have used or pastured this land to the water’s edge is not important.; as said in the case of Hatch v. Railway, supra, if he did so do it was by mere sufferance and not of right.

Another question of considerable importance is the question as to the' extent or line of appropriation. It is insisted on the one hand that, if there was an appropriation at all, that .appropriation can not extend beyond the low water line and that if any berme bank is to be added to that, the measurement therefor must be from that line. It is contended on the other hand that the measurement of this bank should commence at the flood water line. "We can not agree with either •of these contentions. This reservoir was built for a feeder to the canals, a place in which to store water in wet seasons to maintain the level of the canals in dry seasons. That being true, the reservoir would be useless if it could only be maintained to a low water line. Undoubtedly in season of continued drought, water would be drawn from this reservoir to the level of the water in the canal and if that were all the land that the state acquired, then it would be useless as a storage reservoir. On the other hand, when by heavy floods it is filled beyond the capacity of the reservoir and above the level of the waste weir so that these flood waters- would waste until the level of its storage capacity is reached, the state could have no need or interest in such flood water only to the extent which the state had prepared to hold and retain the same for the nse of the canals. Therefore it is the storage level that must ■obtain.

We have reached the conclusion first, that the state has-•the title in fee simple to not only the land covered by these waters¡ but also to a berme bank around the same to the width •of 12.12 feet; that this measurement of this berme bank commences at the water line at a stage of water to the limit of the •storage capacity of the reservoir. The exact location of this level is one of the most difficult questions presented in this case. ‘There seems to be no record of that level, and it maybe said here that it is not important as to the level that is maintained at this time; it is the level which was originally established that marks and defines the appropriation by the state by which title in fee passed to the state, for the title being once vested it becomes absolute, and even the abandonment of the canal system or of this reservoir would not affect it.

The data, however, from which the engineer of the board of public works has attempted to establish this level is fairly satisfactory. It seems to us that in the absence of evidence to the contrary, that must be accepted as the best evidence of which the case is now susceptible. This evidence was given in the common pleas court many months ago, affording the plaintiff sufficient opportunity to further investigate and determine its reliability and if possible furnish better data to establish the storage level.

It is insisted that the evidence is too uncertain and unreliable to be adopted by the court in determining this controversy, but in view of the purpose for which this reservoir was built and the needs it was designed to serve, it seems to us that the result reached by the engineer is at least reasonable, and for lack of testimony in conflict therewith we were compelled to accept the same for the purpose of this case. It would further' appear that the purpose for which the berme bank was acquired by the state originally as well as its present needs not only for the board of public works, their agents and employes, and in view of the rights of the public therein under the act of legislature establishing this as a public park and pleasure resort for all the people of the state, that the board of public works has no authority whatever to grant a lease of this berme bank for building purposes or for the purpose of placing any obstruction thereon that would interfere with the free and uninterrupted use thereof either by the people or by the state and its agents.

Having reached the foregoing conclusion, it follows that the petition of' the plaintiff must be dismissed with costs of this suit, that the prayer of the defendant’s cross petition must be granted as to all that portion of the property leased by,her from the state not included in the limits of the berme bank, but as to that portion she is enjoined from constructing any building or other structures thereon that would in any wise interfere with the free and uninterrupted use of the same.


text:
    BASIS OF ADDITIONAL COMPENSATION TO COMMON PLEAS JUDGES.
    [Morrow (5th) Circuit Court,
    June, 1911.]
    Voorhees, Shields and Crow, JJ.
    (Judge Crow of the 3rd circuit sitting in place of Judge Powell.)
    State ex rel. Mansfield v. Clifton Sipes, Aud.
    Statutory Regulation as to Salaries op Common Pleas Judges Based-upon Population Because Litigation is in Proportion to Population — Regard may be Had por Consideration op Injustice in Construing a Statute which is Ambiguous.
    A judge of the court of common pleas in a judicial subdivision containing more than one county, whose term of office began before the adoption of the present code, is entitled under R. S. 1284a (Qen. Code 2252), to extra compensation calculated on the basis of the population of the subdivision, rather than on the basis of the population of the county where he happens-to reside.
    [Syllabus by the court.]
    Mandamus.

      Edwin Mansfield, for relator. •

      J. G. Williamson, Pros. Atty., for respondent.
   VOORHEES, J.

The relator, Edwin Mansfield, represents to this court that on November 6, 1906, he was elected judge of the court of common pleas in and for the second subdivision of the sixth judicial district of the state of Ohio, for the term of six years from February 9, 1907; and that he duly qualified and entered upon his duties as such judge and has ever since said date, and now is one of the judges of the court of common pleas, of said subdivision and district.

That the defendant, Clifton Sipes, is now and at the time of the grievance hereinafter recited was the duly elected, qualified and acting auditor of the county of Morrow and state of Ohio.

That said second subdivision of said judicial district at the time of relator’s election and qualification as such judge, as aforesaid, was and now is composed of the following counties in said state of Ohio, to wit: Ashland, Richland and Morrow.

That said counties by the last federal census preceding the election and qualification of relator, to wit, the census of 1900, had the following population, to wit:

Ashland county ............21,184
Richland county ............44,289
Morrow county .............17,879
Total ..................83,352

That said relator at the time of his election and qualification as aforesaid, was and now is a resident of said Richland county. At the time of relator’s election and qualification as such judge the statutes.of Ohio then in force, R. S. 1284 (Gen. Code 2248), fixed the salary of common pleas judges each at $3,000. R. S. 1284a (Gen. Code 2252) provided that each judge of the court of common pleas shall receive in addition to the salary allowed by R. S. 1284, as annual salary, equal to $16 per thousand for each one thousand population of the county in which he resided at the time of his election or appointment, as ascertained by the federal census next preceding his assuming the duties of his office, payable quarterly out of the treasury of the county of which he is a resident as aforesaid, if said county is a separate judicial subdivision, upon the warrant of the county auditor of said county, or if he- resides in a judicial subdivision comprising more than one county, out of the treasuries of the several counties comprising said judicial subdivision, in proportion to the population of the several counties of said judicial subdivision, ascertained as aforesaid upon the warrant of the county auditor of said counties.

That on November 9, 1910, there was -due to your relator, as judge of said court of common pleas in and for said subdivision from the county of Morrow, the sum of $68, for the quarter ending on November 9, 1910; that your relator has made a demand upon said defendant for said sum of $68 for the payment of the same, but the defendant has neglected and refused to issue his warrant to your relator in payment of the same.

"Whereupon your relator prays that a writ of mandamus commanding the said auditor of Morrow county to issue a voucher to relator for said sum of $68 and interest from November 9, 1910, and commanding said Clifton Sipes, the auditor aforesaid, to deliver his warrant on the treasurer of Morrow county in favor of relator for said amount.

. The prosecuting attorney of said Morrow county demurred to said petition on the ground that the petition does not state facts sufficient to constitute a cause of action.

The cause was submitted to this court at its May term, 1911, upon the petition and the demurrer thereto.

A solution of this question involves a construction and interpretation of the sections of the statutes referred to, being R. S. 1284 and 1284a, the terms,, of which are substantially set forth in the petition. Although R. S. 1284a has been changed somewhat in its language, form and punctuation by Gen. Code 2252, but it does not materially affect the question we have here, as the relator’s term of office began before the adoption of the code, but it may be useful, as reflecting the legislative intent, to notice Gen. Code 2252. It will be observed that the section last named is logically divisible into two parts, the first making provision for the additional salary of common pleas judges where the county of his residence comprises an entire subdivision of a district; the second where the county of his residence is one of two or more counties comprising a subdivision.

The statute provides that each judge shall receive an annual salary equal to $16 for each one thousand population of the county in which he resided when elected'or appointed, if in a separate judicial subdivision.

In the latter clause it provides that if he resides in a judicial subdivision comprising more than one county such salary shall be paid from tbe treasuries of tbe several counties of the subdivision in proportion to such population thereof.

Where the subdivision comprises but a single county the statute has specifically fixed the basis of the judge’s salary at $16 per thousand inhabitants. Where the subdivision comprises more than one county the statute is silent as to the basis of the salary, providing only for division of the same proportionately among the counties.; hence the basis for fixing the salary is left to the intendment of the statute.

In fixing the salary in the former case, the legislature has chosen the population of the county as the equitable basis, on the theory that the more people in the subdivision the more labor would be required. Hence, in fixing the salary for the latter class, the rational deduction would be that the population of the subdivision would be the proper basis.

This basis of fixing salaries in the second class of subdivisions gives to all the judges in a subdivision (who are supposed to apportion the work equitably between them) the same salary and follows the distinction made by the legislature between populous and sparsely settled subdivisions.

There are certain facts, circumstances and conditions concerning the work and compensation of the common pleas judges in the state, and the various judicial subdivisions, that courts should and can of right take judicial notice of in considering a question of construction such as we have here. It may be assumed that:

The amount of labor of common pleas judges is in proportion to the population of the counties or subdivisions of the district over which the judges have jurisdiction, and that the amount of litigation bears a reasonable proportion to the population of the county or subdivision in which the judge resides. This fact furnished a reason for the statute creating the difference in the amount of compensation of common pleas judges.

It is also judicially known that the population of the counties composing a judicial subdivision are not always equal, and the judge of the common pleas court is not exclusively a judge in the county where he may reside. He is a judge for the whole district, for that matter, and by R. S. 648 (Gen. /Code 1853), the work of the district shall be divided and apportioned among the judges as nearly as practicable. As heretofore observed, judicial districts of the state and the subdivisions therein are not all equal in population or in the volume of business to be transacted, or that is expected to come before the court. A judge of a district or subdivision is subject to be assigned, or may be required to hold court in any county in the subdivision or district.

Now, that being so, is it, or would it be fair, just or reasonable that a judge residing in a small county should be required to serve in a county in his district or subdivision where the volume of business is much larger and requires more time in the discharge thereof, than in his own county? Yet when the state comes to pay him, his compensation is to be measured by the population of his county, while his more fortunate associates who reside in the more populous county, who are not required or expected to do any more work than he does, receives several hundred dollars more compensation.

It may be urged in answer to this unjust interpretation of the law that it is an argument that should be addressed xu the legislature and not to the court. That is doubtless true as an abstract legal proposition, as it is the province of courts to simply construe and enforce, but not to make a statute. Considerations of injustice, inconvenience and absurdity must be addressed to the legislature, and if the legislative intent is clear it must prevail; but where it is ambiguous and susceptible of two constructions the courts will give that construction which best comports with principles of reason, justice and convenience.

Now, we know from experience and from the history of the practice in the state, under this statute, that in many subdivisions and districts, the practice is to compute the extra compensation of the common pleas judges on the basis of the population of the subdivision and not the county where the judge may reside. This being true, it shows that this statute is not clear in its terms and the legislative intent is subject to two constructions; therefore, the courts should give the statute that construction which best comports with the principles of reason and justice. It is presumed that the legislature intended the law to operate justly.

It may be urged that the construction that has been given in some of the subdivisions as to the interpretation of the statute as to the population of a subdivision being the basis of the extra compensation rather than the county where the judge resides, is not binding on this court, yet it is strongly persuasive, especially when it seems so manifestly just that such construction should be considered as the legislative intent.

Therefore, we hold that the relator is entitled to have a writ of mandamus issued in this case as prayed for in his petition.

The principle and rule of construction contended for in this opinion finds support in many decisions of the Supreme Court of the United States, as shown by 11 Enc. U. S. Sup. Ct. Rep. 151, Subd. 11, and authorities cited in notes 97, 98 and 99; as well as the Supreme Court of our own state; among the latter may be cited, Moore v. Given, 39 Ohio St. 661; Kearny v. Buttles, 1 Ohio St. 365; Babbett v. Morgan, 31 Ohio St. 285, and cases outside of our state cited in the opinion of State v. Brewster, 39 Ohio St. 658.

The demurrer to the petition in this case is overruled and the writ of mandamus ordered to be issued as aforesaid, exceptions.

Shields, J., concurs.

Crow, J., dissents.


text:
    CONTRACTS — EVIDENCE.
    [Hamilton (1st) Circuit Court,
    January 11, 1909.]
    Giffen, Smith and Swing, JJ.
    Mathew Ryan v. August Schardt.
    1. Recovert Had on Contract not Rigidly Performed.
    A contractor may recover notwithstanding his contract has not been rigidly performed.
    '2. Preponderance not a Question of Degree.
    There are no degrees of preponderance; if the evidence preponderates at all, however slightly, it is sufficient.

      Error to common pleas court.

      Charles F. ’Williams and Horace A. Reeve, for plaintiff in error.

      Gloss & Luebbert, for defendant in error.
   SMITH, J.

We do not think the judgment of the trial court should be reversed on the ground that the verdict is not sustained by sufficient proof nor do we find error in the trial court refusing the special charges asked for by plaintiff in error. The rigid rule contended for in these charges has been relaxed and where formerly no recovery could be had on a contract like the one in suit unless the agreement was strictly performed, yet now where the contractor acts in good faith there may be such a recovery although the contract may not have been literally performed. Kane v. Stone Co. 39 Ohio St. 1.

There is error, however, in the general charge of the court in this: .The court does not definitely or clearly define to the jury the meaning of the burden of proof or the preponderance of the evidence. Also in those portions of the charge where the court speaks of the drain as one which an ordinarily reasonable and prudent man would have had constructed through his property. This was not the question for the jury but the action was upon a written contract, the performance of which was disputed. Also in charging the jury that the defendant must show that the sewer or drain as built by the plaintiff does not comply with, the terms of the agreement. This burden was upon the plaintiff to show that it did so comply, and it was also error to charge that the burden of proof should be established by a fair preponderance of the evidence. There are no degrees in preponderance; if the evidence preponderates at all, however slightly, this is sufficient. Russell v. Russell, 3 Circ. Dec. 460 (6 R. 294).

No other errors appearing in the record, for the above reasons the judgment of the trial court is reversed.

Giffen and Swing, JJ., concur.


author: GIFFEN, P. J.

text:
    ERROR — PLEADING—TRIAL.
    [Hamilton (1st) Circuit Court,
    April 10, 1909.]
    Giffen, Smith, and Swing, JJ.
    Estella B. Hieatt v. Susan W. Simpson et al.
    1. On Remand Reversing Order Overruling Demurrer Court Below may Permit Amendment to Demurred Pleading.
    The circuit court, upon the Supreme Court’s having sustained a demurrer and remanding the case for further proceedings, may, under R. S. 5116 (Gen. Code 11365), allow an amendment to the pleading to which demurrer is sustained.
    2. Payment of Taxes under Mistake of Law with Knowledge of the Facts is Voluntary.
    The payment of taxes under a mistake of law with full knowledge of the facts, cannot, when made voluntarily, be recovered; hence, where an amendment to an answer contains facts sufficient to show a forfeiture by the life tenant, under R. S. 2852 (Gen. Code 5688) it is unnecessary to show how much taxes were so paid or whether other real efetate was forfeited to the remainderman so long as such amended answer states a good, though partial, defense.
    Error to common pleas court.

      W. T. Porter, for plaintiff in error:
    Cited and commented upon tbe following authorities: Witte v. Lockwood, 39 Ohio St. 141; New York Life Ins. Co. v. Bangs, 103 U. S. 780 [26 L. Ed. 608] ; Buegger v. Bailway, 103 111. 449; Tuttle v. Harrill, 85 N. C. 456; Kunneke v. Mapel, 60 Ohio St. 1 [53 N. E. Rep. 259]; Ewing v. McNairy, 20 Ohio St. 315; Covington & C. Bridge Co. v. Sargent, 27 Ohio St. 233; McCoy v. Jones, 61 Ohio St. 119 [55 N. E. Rep. 219] ; Hackworth v. Zollars, 30 Iowa 433; Hites v. Irvine, 13 Ohio St. 283; Le Guen v. Gouverneur, 1 Johns. Cas. 436 [1 Am. Dec. 121] ; Gray v. Dougherty, 25 Cal. 266; Allen v. McCoy, 8 Ohio 418; Crockett v. Crockett, 2 Ohio St. 180; Jenks v. Langdon, 21 Ohio St. 362; Kent v. Bentley, 6 Circ. Dee. 457 (10 R. 132); Johnson v. Pettit, 13 Dec. Re. 394 (1 C. S. C.' 25) ; Chaffee v. Foster, 2 Ohio St. 358 [39 N. E. Rep. 947]; Estahrook v. Boy on, 52 Ohio St. 318 [39 N. E. Rep. 808; 32 L. R. A. 805]; Thompson v, Thompson, 1.8 Ohio St. 73; Mays v. Cin

      cinnati, 1 Ohio St. 268; Marietta v. Slocomb, 6 Ohio St. 471; Valley By. v. Iron Co. 46 Ohio St. 44 [18 N. E. Rep. 486; 1 L. R. A. 412] ; Cincinnati v. Gas Light & Coke Co. 53 Ohio St.' 278 [41 N. E. Rep. 239] ; Phillips v. McConica, 59 Ohio St. 1 [51 N. E. Rep. 445; 69 Am. St. Rep. 753] ; Vindicator Print.Co. v. State, 68 Ohio St. 362 [67 N. E. Rep. 733].

      Worthington & Strong and Outcalt & Hickenlooper, for defendant in error.
   GIFFEN, P. J.

The Supreme Court [Hieatt v. Simpson, 78 Ohio St. 446] having rendered the judgment that this court should have rendered [Hieatt v. Simpson, 28 O. C. C. 590 (4 O. L. R. 136)], to wit, sustained the demurrer to the answer, and remanded the cause to this court for further proceedings according to law, the authority to allow an amendment to the answer, under R. S. 5116 (Gen. Code 11365), is the same as if this court had, instead of overruling the demurrer, sustained the same. The case of Covington & Cin. Bridge Co. v. Sargent, 27 Ohio St. 233, and other like cases, apply only where final judgment has been rendered.

The amendment to the answer presented contains facts sufficient to show a forfeiture under R. S. 2852 (Gen. Code 5688), of at least the ten and one-half acres of land sold to Van Tress.

The payment of taxes under a mistake of law with full knowledge of the facts, can not, when made voluntarily, be recovered.

It is unnecessary to now determine how much, if any, was so paid, or whether the other real estate was forfeited to the persons next entitled thereto in remainder, so long as the proposed amendment states a good though partial defense. If counsel for defendants elect to accept the offer of plaintiff to allow a lien for taxes paid by them there will be no difficulty in entering a decree to that effect after proper pleadings are filed.

Leave to file amendment granted.

Smith and Swing, JJ., concur.