author: COOK, J.

text:
    PROCEEDINGS IN AID OF EXECUTION..
    [Lake (7th) Circuit Court,
    January Term, 1906.]
    Cook, Burrows and Laubie, JJ.
    Wesley Sweet v. W. C. Barnum & Co.
    Pabol Evidence that Claim was bob Necessabies Competent in Pboceedings int Aid off Execution.
    Under proceedings in aid of execution it may be shown by parol evidence* that the claim upon which the judgment was rendered was for necessaries,, and ten per cent of the earnings of-the judgment debtor subjected to the payment of the claim of the judgment creditor.
    [Syllabus by the court.]
    EbboR to Lake common pleas court.
    E. F. Blakley, for plaintiff in error:
    The original claim has by being sued upon and merged in the judgment, lost its vitality and expended its force and effect. 2 Black, Judgments Sec. 674; Freeman, Judgments Sec. 215.
    Parol evidence is not admissible to show that a judgment was founded upon matters not presented by the pleadings. 2 Black, Judgments Sec. 626.
    The legal effect of a judgment cannot be varied by proof, outside the record. Wool/worth v. Brinker, 11 Ohio St. 593; Sargent v. Sargent, 11 Dec. 218 (8 N. P..238).
    A claim for necessaries reduced to judgment cannot be basis of proceedings in aid of execution under 10 per cent law. Boiler v. Esman, 15-Dee. 579; Salisbury v. Souse, 15 Dec. 584; Brown v. West, 73 Me. 23; Oran v. Houdlette, 36 Me. 15; Bioknell v. Trickey, 34 Me. 273; Bangs v. Watson, 75 Mass. (9 Gray) 211.
    B. C. Shepherd, for defendant in error:
    The proper time for the debtor to claim his exemption, is when the officer is about to levy. Sears v. Hanks, 14 Ohio St. 298 [84 Am. Dec. 378],
    It is the privilege of the debtor, not the duty of the justice", to claim exemptions. Bempe v. Bavens, 68 Ohio St. 113 [67 N. E. Rep. 282] ; Constable v. White, 12 Dec. Re. 18 (1 Handy 44).
    The words “claim, debt or demand” cannot be construed to mean or to refer to the judgment on the account. Porter v. Wagner, 36 Ohio St. 471; Shirland v. Bank, 65 Iowa 96 [21 N. W. Rep. 200]; Lake Shore & M. S. By. v. Hutchins, 37 O. S. 282.
    When the proceedings in aid of execution were instituted under favor of Rev. Stat. 6680-1 (Lan. 10264) et seq., it brought the parties into the same relation as though garnishment proceedings had been, instituted.

      Kerruish v. Meyers, 11 Circ. Dec. 666 (21 R. 434),'having filed the proceedings in aid, his counter affidavit denying that the goods were necessaries and that 10 p'er cent of his wages were liable to the payment of the account, Barnum & Co. should have been allowed to show that the statements made in the counter affidavit were not true and that the claim, debt or demand was for necessaries. Kirk v. Stevenson, 59 Ohio St. 556 [53 N. E. Rep. 49]; Goston v. Paige, 9 Ohio St. 397; Bradley v. Wacker, 7 Circ. Dee. 565 (13 R. 530).
    The introduction of this evidence would not have varied the terms of the original judgment on the account, as the proceedings were a separate and distinct action.' Tlarñson v. King, 9 Ohio St. 388; Young v. Gerdes, 42 Ohio St. 102; Burkham v. Cooper, 1 Circ. Dec. 371 (2 R. 77) ; Trout v. Marvin, 24 O. C. C. 333; Barbour v. Boyce, 8 Dee. 548 (5 N. P.273).
    The provision of the statutes making 10 per cent of the personal earnings of a debtor liable to seizure for a “claim, debt or demand for necessaries” cannot be construed to mean that the words “claim, debt , or demand” are identical with or refer to the judgment on the account; the judgment is the mere evidence of the debt. Latham v. Blake, 77 Cal. 646 [18 Pac. Rep. 150],
   COOK, J.

Barnum & Co. filed a bill of particulars against Wesley Sweet before a justice of the peace of this county, claiming there was a certain amount due them on account of goods sold and delivered. The claim as a matter of fact was for necessaries, but it was not so stated in the bill of particulars. Sweet made no defense and judgment was obtained by default for the full amount against him.

Some time afterwards Barnum & Go. commenced proceedings against Sweet under the statute in aid of execution, and alleged in their affidavit that the Baltimore and Ohio Railroad Company was indebted to Sweet for wages, and sought to have 10 per cent of such wages appropriated to the payment of their claim, upon which the judgment was obtained, averring in their affidavit that the claim was for necessaries furnished Sweet.

Sweet filed a motion to dismiss the proceeding upon the ground that Barnum & Co. having filed a bill of particulars averring that his claim was upon an account for goods sold and delivered and taken judgment upon the same, they cannot in the proceeding in aid of execution set up that the claim was for necessaries

The justice of the peace sustained the motion of Sweet and.dismissed the proceeding. Error was taken to the common pleas court; that court reversed tbe judgment of tbe justice; set tbe case down for trial; rendered judgment ordering the Baltimore and Ohio Railroad Company to pay 10 per cent of tbe wages due Sweet into court to be applied upon tbe judgment of Barnum & Co.; and tbe case is now before this court upon error to reverse that judgment.

Tbe claim of plaintiff in error before us, as it was below, is that tbe claim of Barnum & Co. in tbe proceeding in aid of execution is upon a judgment rendered upon a bill of particulars upon an account for goods sold and delivered, and is in no way a claim for necessaries. Tbe claim of plaintiff in error is twofold. First, that parol evidence cannot be introduced to explain the bill of particulars, and second, that the judgment of tbe court merged the claim, whatever it was, into the judgment, and that a judgment is not a claim for necessaries.

Tbe defense, to say tbe least, is ingenious and what is more has the-support of judges of two common pleas courts of tbe state, for whom we have the highest respect, and also would seem to have tbe support of the courts of tbe highest resort of several of tbe states. Roller v. Esman, 15 Dec. 579; Salisbury v. House, 15 Dec. 584; Brown v. West, 73 Me. 23; Bangs v. Watson, 75 Mass. (9 Gray) 211.

We think the difficulty arises from a proper construction of Rev. Stat. 5430 (Lan. 8958) respecting the words “claim, debt or demand.” When we take all the sections of the statute together, it is apparent that these words are not restricted to the claim, debt or demand upon which the proceeding in aid of execution was based, but upon the claim, debt or demand which went into the judgment.

There is no doubt but what the original claim is usually merged into the judgment, and for most purposes is wiped'out by the judgment.

“The cause of action, though it may be examined to aid in interpreting the judgment, can never again become the basis of a suit between the same parties. It has lost its vitality; it has expended its force and effect. All its power to sustain rights and enforce liabilities has terminated in the judgment and decree. It is drowned in the judgment and must henceforth be regarded as functus officio.”

Rreeman, Judgments See. 215.

That is true of the judgment when the judgment is involved, d„u the subjection of the property of a debtor to the payment of a claim is entirely different. Exemptions cannot be claimed until the property is sought to be executed. Conditions then surrounding the parties alone are inquired into. The judgment has no force and effect save that the claim of the creditor is made certain, and it is necessary to permit execution, but as to what property is exempt and how exempt depends upon' tbe conditions pertaining, at tbe time tbe debt is contracted, and tbe execution is sought to be enforced. As against many claims no exemptions are allowed at all, although judgments are rendered upon tbe claim. Judgments upon mechanics’ liens; under tbe liquor laws; for taxes, and many others that might be mentioned.

It seems to us that what is denominated in Rev. Stat. 5441 (Lan. 8970) by “claim, debt or demand for the payment of which it is sought to subject such personal earnings is one for necessaries furnished to the debtor, his wife or family; — then only 90 per centum of such personal earnings — of the debtor shall be exempt,” means the original claim, debt or demand. Any other interpretation would make the provisions wholly ineffective. No execution could be issued until judgment is obtained; no action upon the judgment could be instituted until judgment was obtained; no proceeding in aid of execution could be instituted until judgment, and indeed no order can be made in attachment in favor of the creditor as to disposition of property or the turning over to him the amount. claimed due from garnishee under Rev Stat. 6501 (Lan. 10078) upon which so much reliance is placed until judgment is obtained; and if after judgment and before order as to the claim garnished, the debtor interposes that the judgment merges the original claim and the judgment is not for necessaries, the creditor is entirely foiled in his attachment próeeeding; of course, if he does not or cannot proceed in attachment, he is entirely remediless as to the 10 per cent provision. Such a holding as contended for by plaintiff in error would make the provision of the statutes wholly nugatory and the action of the legislature wholly inconsistent with its design.

Having seen that under our statute the judgment does not so merge the claim as to preclude the showing as to of what it consisted, it necessarily follows that it may be done by parol.

The theory that we adopt is fully sustained by the supreme court of Rhode Island in Thompson v. Roach, 15 R. I. 417 [6 Atl. Rep. 790]. The syllabus of that case is:

“Pub. St. R. I. 209, Sec. 4, cl. 12, exempts from attachment wages not exceeding $10, except when the cause of action is for necessaries. Upon action in debt upon judgment recovered against defendant in action in assumpsit for necessaries, held, that the cause of action is as much for necessaries in the action in debt upon the judgment as in the action in assumpsit.”

Judgment of common pleas affirmed.

Burrows and Laubie, JJ., concur.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    FEES — MUNICIPAL CORPORATIONS.
    [Scioto (4th) Circuit Court,
    May 8, 1906.]
    Jones, Walters, and Cherrington, JJ.
    Portsmouth (City) v. Cread Milstead. Portsmouth (City) v. James A. Baucus.
    1. Fees Payable into City Treasury Limited to Municipal Fees Only.
    The provisions of 96 O. L. 61, Sec. 126 (Rev. Stat. 1536-633; Lan. 3228) requiring “that all fees pertaining to any office shall he paid into the .city treasury” has reference to municipal fees solely, or such fees as may be fixed by municipal authority. ,
    2. Fees in State Criminal Cases Exempted.
    Said section does not authorize cities to interfere with the fees of mayors or chiefs of police in state criminal eases- whether such authority can be delegated to municipalities, quaere.

    [Syllabus by the court.]
    Error to Scioto common pleas court.
    G. M. Osborne, for plaintiff in error:
    On demurrer to amended petition, cited and commented on the following authorities: Revised Statutes 621a et, seq. (Lan. 987 et seq.)-, Hart v. Murray, 48 O. S. 605 [29 N. E. Rep. 576]; Clark v. Lucas Co. (Comrs.) 58 Ohio St. 107 [50 N. E. Rep. 356] ; Piqua v. Cron, 14 Dee. 500; Cambridge v. Smallwood, 27 O. C. C. 302; Hatch v. Cincinnati, 17 Ohio St. 48; Beliefontaine v. Haviland, 15 Dec. 482; Rev. Stat. 1744 (Lan. 3256; B. 1536-773) et seq.

    Henry Bannon, for defendants in error:
    To sustain demurrer, cited and commented on the foliowing authorities: Revised Statutes 1745, 1822, 1850 (Lan. 3257, 3355, 3383; B. 1536-774, 1536-783, 1536-863) ; Canton v. Nist, 9 Ohio St. 439; Thompson v. Mt. Vernon, 11 Ohio St. 688; Piqua v. Cron, 14 Dec. 500.
   JONES, J.

In the common pleas court, the city of Portsmouth, whose corporate limits are coextensive with Wayne township, brought an action against its former mayor, Cread Milstead, seeking to recover certain fees in criminal prosecutions known as state cases.

The amended petition contains three causes of action; the first seeking to recover fees drawn by the mayor from the county treasury, the second for sums drawn and collected from the common pleas court in felony cases, and the third for fees collected by him directly from defendants in cases of misdemeanor.

The amended petition alleges as a basis of recovery, the passage of an •ordinance whereby the city had fixed his salary as mayor in the sum of $1,500 per annum, and provided in such ordinance that such salary should be “in full yearly payment for all the services rendered and duties performed by him in his official capacity as such mayor of the •city, judge of the police court and ex officio justice of the peace and all fees received and collected by him as such official shall be paid into the ■city treasury weekly.”

In the second case, the action was brought against Baucus for fees nf a similar character, drawn by him as chief of police, and is otherwise ■similar to the former action, except that the ordinance in the latter ease provides a salary of $1,200 per annum in full yearly payment for services performed by him in his “official capacity as such .chief and ex officio constable, and all the fees heretofore pertaining to said office (i. ■e.), that of city marshal shall be paid weekly into the city treasury.”

The common pleas court sustained a demurrer to the amended petition in each case.

Counsel for the mayor denies the power of the general assembly to ■delegate to city councils the authority to legislate upon subjects that are nonmunieipal; it is insisted that municipal corporations may pass ordinances touching subjects only that are clearly of local and municipal ■character, but that fees in state cases not being of such character, the power of legislation and control thereof is reserved in the state.

The fees sought to be recovered by the city in the first and second •causes of action were those levied by general taxation and paid out of the ' ■county and state treasuries respectively, and it would seem that this was •an indirect method of recouping the city, from those treasuries, for the payment of salaries to its municipal officers.

This, together with the- fact that fees and costs made in the performance of duties wholly under state control and which are no part •of the’ functions of city government might well raise the quaere whether ■such authority and control over fees in state criminal cases can be •delegated to municipal councils. But whether it can be so delegated, it is not necessary for us to decide.

Assuming that such power of delegation does exist, then the question .arises whether it has been conferred.

It: is uniformly held that municipal powers are strictly limited. They have only those powers that are expressly granted or are clearly implied, as essential to carry into effect such powers expressly granted, and in cases of doubt, the court should be resolved against the city. Ravenna v. Pennsylvania Co. 45 Ohio St. 118, 121 [12 N. E. Rep. 445] Bloom v. Xenia, 82 Ohio St. 461, 465.

It would seem that the framers of the ordinance in question doubted the purport of the act granting them authority to retain the fees of officers in state cases, for the terms of the ordinance manifestly widens the-scope of the act.

Section 126, 96 O. L. 61 (Rev. Stat. 1536-633; Lan. 3228), provides that “council shall fix the salaries of all officers, clerks and employes in the city government, except as otherwise provided in this act, and, except as otherwise provided in this act, all fees pertaining to any office shall be paid into the city treasury.”

When the legislature provided that all fees “pertaining to any office” shall be paid into the city treasury, did it intend more than the fees pertaining to the office of the mayor, and such as arose from duties purely municipal ?

The city council, by the terms of its ordinance, resolved any doubt in its favor by broadening the scope of the act, and providing that his salary should be in full for all of the services and duties performed by him in his official capacity as such mayor of.the city, judge of the police court, and ex officio justice of the peace, etc.

The general scope of 96 0. L. 1, now commonly known as the municipal code was for the sole purpose of providing for the organization of municipal corporations and conferring upon such clearly defined municipal powers and duties.

By Sec. 129 of the code the mayor has been constituted the chief conservator of the peace within the corporation; this section clothes him with municipal duties only; and it is fairly inferable that the legislature, in revising the statutes giving him compensation, intended such compensation for municipal duties solely.

The state fixes and controls the amount and character of fees in state cases, and has delegated to municipal councils authority to fix the fees for violation of its municipal laws. The scheme of legislation recognizes the distinction between the jurisdiction, powers and duties of the mayor, and such as he exercises as an ex officio justice of the peace.

In addition to the municipal' duties imposed upon the mayor by Sec. 129 of the municipal code, he is clothed by certain statutes, which were-not incorporated in the act of October 22, 1902, with jurisdiction in felonies and other criminal proceedings, concurrent with justice of the-peace throughout the county; and in certain classes of misdemeanors his; jurisdiction is final and coextensive with the county.

Under Rev. Stat. 1745 (Lan. 3257; B. 1536-774), he “is entitled to receive the same fees that are or may be allowed justices of the peace for similar services.”

This section has not been repealed by the municipal code, unless the blanket repealing' clause effects its repeal by providing that “this act. shall supersede all acts or parts of acts not herein expressly repealed, which are inconsistent herewith.” But Sec. 126 of the code is not. necessarily inconsistent with Rev. Stat. 1745 (Lan. 3257; B. 1536-774) or if doubt arises in the construction of these two sections, such doubt, must be resolved against the delegation of power to the city. !

It would seem therefore, that Sees. 126,128 and 129 of the municipal code sought to deal only with municipal organization, municipal duties and municipal fees; and that “all fees pertaining to any office,” under the rule established in Ravenna v. Pennsylvania Co. supra, refers to municipal fees or such that may be fixed and controlled by municipal authority.

What has been said above applies to the case of the city against James A. Baucus as chief of police, except that the chief of police is more strongly intrenched behind an ordinance which only required the fees “pertaining to said office,” i. e., that of city marshal to be paid into the city treasury.

The court below properly sustained the demurrers to the several amended petitions, and in each ease the judgment will be affirmed.

Walters and Cherrington, JJ., concur.


author: TAGGART, J.

text:
    DAMAGES — MINES AND MINING.
    [Perry (5th) Circuit Court,
    November 29, 1905.]
    McCarty, Taggart and Norris, JJ.
    (Judge Norris, of the third circuit, sitting in place of Judge Donahue.)
    Upson Coal & Mining Co. v. John E. Williams.
    1. Measure of Damages by Wash from Mines — Distinction between Damages for Permanent Injury and for One Carabee of Repair.
    The measure of damages to a riparian owner, caused by wash from mines poured into the stream above him, is dependent upon the nature and extent, of the injury complained of. If the damage is permanent and irreparable, the true measure is the difference in value before and after the injury. If the land may be restored the true measure is the rental value during the time the owner has been deprived of the use together with the reasonable cost of restoration. But if the latter exceeds the difference in value before and after the injury, then that difference becomes the true measure.
    2. Damage Caused by Wash from Several Mines, Acting Independently, not to be Divided Equally.
    Where an injury to the land of a riparian owner by the wash from mines poured into the stream above his land, is caused by the action of several mine owners acting independently, and in an action against one of them there is no effort by the defendant to prove’the amount contributed by the other mines to the injury, or to show the jury the actual injury for which the defendant alone is responsible, the jury cannot be required to divide the amount of the injury equally among them, and return a verdict against the defendant for only its aliquot part thereof.
    3. Jury Presumed to have Understood and Applied Charge Correctly — Intf.rest may be Awarded on Permanent Injury to Land.
    The presumption obtains that the jury understood the charge of the court and applied it correctly; and where a jury finds in a case, involving a species of appropriation, that the plaintiff’s land was substantially taken from him, it is consonant with right and justice for the court to charge, and the jury to award, interest on the amount of damages assessed in his favor, at least from the time he demanded redress.
    [Syllabus approved by the court.]
    ERROR to Perry common pleas court.
    J. B. Jones, for plaintiff in error. ,
    T. D. Price and Donohue & Spencer, for defendant in error:
    Liability of joint tort feasors, Boyd v. Watt, 27 Ohio St. 259-, Bants v. Barnes, 40 Ohio St. 43; 1 Chitty’s Pleadings 86; Kir diner y. Myers, 35 Ohio St. 85, 91 [35 Am. Eep. 598].
    Measure and rule of damages in nuisance. Stroth Brewing Go. y. Schmitt, 25 O. C. C. 231; Cincinnati y. Wright, 14 Dee. 600; Smith v. Railway, 23 W. Va. 451-453; 2 Wood, Railroads (Minor’s Ed.) 1087, mote 2; Cincinnati v. Whetstone, 47 Ohio St. 196 [24 N. E. Rep. 409]; Jjawrence By. v. Cobb, 35 Ohio St. 94; Hogg v. Canal & Mfg. Co. 5 Ohio 410; Bailway v. Schultz, 43 Ohio St. 270-275 [1 N. E. Rep. 324; 54 Am. St. Rep. 805]; Norton v. Parker, 8 Circ. Dec. 572 (17 R. 715) ; Toledo v. Qrasser, 6 Circ. Dec. 782 (12 R. 520); Parrott v. Ice Go. 46 N. Y. 361.
    Impeachment o£ verdict. Holman v. Biddle, 8 Ohio St. 384; Hulet v. Barnett, 10 Ohio 459; Janes v. Hoehn, 2 Circ. Dec. 245 (3 R. 433): Parker v. Blackwelder, 3 Circ. Dec. 700 (7 R. 140); Goins v. State, 46 Ohio St. 457 [21 N. E. Rep. 476]; Barrer v. State, 2 Ohio St. 54; Kent v. State, 42 Ohio St. 426.
   TAGGART, J.

John E. Williams brought his action against the Upson Coal & Mining Company to recover for damages to his farm, in the court of common pleas of the county. He sets forth in his petition that the stream which flows through the same furnished an abundance of good water for his stock and farm; that the channel thereof was of sufficient capacity to carry the water without inundating the adjoining fields; that the defendant was the owner and operating mines located some distance above and on a stream or ravine that found its outlet through plaintiff’s lands; that the slack and refuse of the mines were so placed that in times of rains or freshets this slack and refuse was carried down and filled the channel of the stream through his lands, and caused it to overflow and deposit this refuse on his lands, and to such an extent as to destroy many acres of his farm; that in consequence the water became foul and unfit for use. For the injuries complained of he asks damages in the sum of $2,000.

The only defenses in the answer of the defendant, that it is necessary to refer to, are the “first” and “third.” The “first” is a general denial'. In the “third” the defendant, after averring that if coal slack and refuse was deposited on plaintiff’s lands, within the time mentioned, the same did not come from defendant’s mines, but the same was washed into the stream flowing through plaintiff’s land, by its tributaries. That there are on said tributaries eight mines, each of which acting for itself contributed to causing said slack to find its way into said stream on plaintiff’s lands. It is not necessary to refer more •particularly to the pleadings herein. A yerdiet was returned for the sum of $1,017.95, in favor of the plaintiff. Judgment was entered on the verdict, and proceedings in error are now prosecuted to reverse this judgment.

The first error complained of by plaintiff in error is the admission of evidence. The following fairly exhibits the evidence -which was admitted and which it is claimed was erroneous and prejudicial:

‘ ‘ Q. Now, tell us what was the fair reasonable market value of your land as it was, up until the fourth day of February, 1898 ?
“A. Well, it was worth in my opinion about $2,100, the whole thing.
“Q. Now, Mr. Williams, tell us what in your opinion was the fair reasonable market value of that same land at the time you commenced this action (February 4, 1902) í
“A. Well, I cannot say that it was worth more than $700.
“By Mr. Jones: I move that the answers fixing values be excluded from the record, for the reason that they are not consistent with the rule of the measure of damages.
“ (Motion overruled by the court, to which ruling of the court the defendant at the time excepted.)”

The same exception is taken in other places in the record, to this class of testimony.

The claim of counsel for plaintiff in error is, that the true rule of ' the measure of damages is not the difference in the market value before the injuries, and the market value after the injuries, have been sustained. But'the recovery is limited to the rental value of the property for the period between said two dates.

The same question is made in the request to charge the jury. Request No. 5, which was refused, is as follows:

“The court says to you that it is not the rule for the measure of damages in this case to take the value of the land just before February 4, 1898, and its value just after February 4, 1902, and find the difference in these values, as the amount that plaintiff should recover; but the true rule for the measure of such damages is the rental value of the injured land for the period between said two dates.”

That the plaintiff is entitled to recover in this kind of a case, for the class of injuries complained of, we have the authority of the case of Columbus & H. Coal & Iron Co. v. Tucker, 48 Ohio St. 41 [26 N. E. Rep. 630].

But this case does not instruct us as to the true rule of the amount of recovery. 'It is not stated whether the plaintiff is entitled to recover, as if the land was taken by an appropriation proceeding, should the proof show that the injury was permanent,- and the plaintiff shows that he is deprived of any use of the land, and consequent injury to the remainder of his lands; or, whether the plaintiff, not being deprived of ■ the title of any portion of his lands, but only the beneficial use of some of his land, can only recover for the loss of the use of the lands, or the fair rental. If the former is the correct rule, then the admission of the evidence was right, and the refusal to charge was proper. If the latter is the rule, then the trial court was in error in both respects. There is proof in the record tending to show that the injury to plaintiff’s property is permanent; that he is permanently deprived of the use and enjoyment of a portion of his lands. The following are some •of the authorities which point out the distinction between a recovery ■of the rental value, and the permanent injury or difference in values:

“In an action to recover damages by the overflow of ,land, whereby the owner of the land has been deprived of its use, the measure of damages is the fair rental value of the land.” City of Chicago v. Huernerbein, 85 Ill. 594 [28 Am. Rep. 626]; see Spilman v. Navigation Co. 74 N. C. 675.
“If the overflow caused permanent injury to the premises, such injury may also be considered in connection with the rental value.” South Bend v. Paxon, 67 Ind. 228; Willey v. Hunter, 57 Vt. 479.
“In an action to recover damages for the unlawful excavation and removal of soil from the premises of plaintiff, the measure of damages is the diminution of the value of the property and not the cost of refilling.” Kant v. Railway, 22 Minn. 118.
“Where injury is done to property, the measure of damages is not the cost of restoring it to its original condition, where such cost may •exceed its value or the actual damage sustained by its owner. ’ ’ Harvey v. Mining Co. 1 Nev. 539 [90 Am. Dec. 510].
“The true measure of damages in case of permanent injury to the soil, is the difference in the value of the land immediately before the injury and its value immediately after.” Fort Worth & D. City Ry. v. Hogsett, 67 Tex. 685, 687.
“In an action for damages to real property, testimony is admissible to show the exact character of the injury suffered — whether of a permanent or irreparable nature, or of a sort susceptible of repair so that the property may be restored to its original condition. If the testimony shows the former to be the nature of the injury the measure of damages is the difference in values of the property before and after the injury. If an injury susceptible of repair has been done, the measure of the damages is the reasonable cost of restoration * * * plus the reasonable compensation for any loss of use of the property between the times of injury and restoration, unless such cost of restoration exceeds the difference in values of the property before and after dhe injury, in which case the difference in values becomes the measure. ’ ’ Cincinnati v. Wright, 14 Dec. 600; Stroth Brew. Co. v. Schmitt, 25 O. C. C. 231.

It was contended on behalf of the plaintiff, that the injury to his land was permanent and that much of his land was rendered useless and destroyed for any useful purpose. This was denied by the defendant, and testimony was addressed to their respective claims. The court gave the jury the following instructions respecting this branch of the case:

“If you find from the evidence that the plaintiff is entitled to recover, then you should go further and ascertain from the evidence, if you can, whether the injury to plaintiff’s premises is permanent and irreparable1, or of a sort susceptible of repair, so that the property may be restored to its original condition; and if you believe from the evidence that the injury is permanent and irreparable, then the true measure of damages for the permanent injury is the difference in values of the property before and after the injury.
“But if you Believe from the evidence that the injury to plaintiff’s property is of a sort susceptible of repair, so that the property may be restored to its original condition, then the true measure of damages is the reasonable cost of restoration of the property to its original condition, plus a reasonable compensation for any loss of use of the property during the time actually and necessarily required to repair the injury and restore the land to its original condition.
“But if you believe from the evidence, that the reasonable cost of restoring the premises to their original condition would exceed the difference in value of the property before and after the injury, then in that case the difference in values- of the injury becomes the true measure of plaintiff’s damage.”

We think, from the authorities cited and others to which attention might be called, that the court stated the rules substantially correct. If so, it was material on behalf of the plaintiff to show the nature and extent of the injuries complained of, and the amount of loss sustained. We hold, therefore, that this class of testimony, was properly admitted, and the instruction asked by the defendant was properly refused.

The defendant in the “third” defense of its answer alleges that if injury was caused by coal slack and refuse from coal mines to plaintiff’s land, that then at least eight mines besides the mine of the defendant, each one of said mines acting for itself and independent of the others, contributed toward said damage to plaintiff’s land; that in any event said defendant is not liable for more than one-ninth of any such damage since February 4, 1898.

At the close of the testimony, the defendant requested the court to give to the jury a series of instructions, all of which were refused. We have regarded these instructions as separate requests or such of them as can be so regarded. The following are requests Nos. 1, 2, 3:

First Request. “In case the jury should find from the evidence that the lands of plaintiff described in the petition herein, have Keen damaged by coal slack and coal refuse, from the mines of defendant any time after February 4, 1898, and before February 4, 1902, the court instructs you that the true rule of the measure of such damages is the plaintiff’s loss of the use of said premises for said period, being the rental value of the same, provided the entire use is destroyed, but in case it is only partially destroyed then it is your duty to ascertain what has been the amount of loss sustained by said plaintiff, caused by the descent from defendant’s mine of such refuse upon said premises. ’ ’ ^

Second Request. “Should the jury find from the evidence that the lands of plaintiff from February 4, 1898, to February 4, 1902, have been damaged by the descent of coal slack and coal refuse upon them from the several mines located and operated on Monday Creek and Shawnee Run, and their tributaries, then the court instructs you to ascertain from the evidence, the number of mines, acting independently and each for itself, which contributed to cause said injury to plaintiff’s land, and the court further says to you that in the absence of proof as to what part of the damages was caused by defendant’s mine, the law infers that all the mines contributing to said injury contributed equally.”

Third Request. “In view of the foregoing rules of the law which the court gives you, it will be your duty to ascertain from the evidence whether plaintiff’s lands, set out in this petition, were damaged by the descent of coal slack and coal refuse from February 4, 1898, to February 1, 1902, from the mines located and operated on Shawnee Run and Monday Creek, and their tributaries, and if so damaged you will find from the evidence the amount of such damage by the rule of damage the court has already given, and then divide said sum, the amount of-such damages, into as many parts as the ffumber of mines that contributed to produce said injury and damages, and the quotient will be the damage that said defendant caused.”

We do not think this series of requests or either of them embody the law in this case. Our attention is directed to the cases of Blaisdell v. Stephens, 14 Nev. 17 [33 Am. Rep. 523] and Chipman v. Palmer, 77 N. Y. 51 [33 Am. Rep. 566], and also to the extensive note in Mississippi Mills Co. v. Smith, 30 Am. St. Rep. 555 [69 Miss. 299; 11 So. Rep. 26], and other cases, to the effect, that in a suit at law one mine owner is not liable for tbe injury inflicted by another mine acting separately and wholly independent, to a riparian owner whose lands may have been injured by the descent of slack and mine refuse from the mines.

It is urged -that this trespass falls within the rule of trespassing animals owned by different persons wherein it is announced that each owner is liable for the acts of his own animals and not liable for the injuries of all the animals.

An examination of the authorities cited in Mississippi Mills Co. v. Smith, supra, distinctly hold, that the mine owners may be jointly restrained from continuing the acts which occasion the injury. The cases do not disclose whether there is anything in the procedure in the states of Pennsylvania and Colorado which would limit the remedy to a bill in equity enjoining and restraining the act which caused the injury. But it would seem that justice at least requires that the wrong of an innocent sufferer shall be redressed without reference to the character of the action prosecuted under our reformed procedure.

Besides the principle involved is not of universal acceptation.

The supreme court of Indiana in the case of Brady v. Ball, 14 Ind. 317, followed the rule adopted by the trial court in this case in his charge to the jury.

In the case of Wilber v. Hubbard, 35 Barb. 303, the court says that in cases of trespassing animals belonging to different persons — and it is impossible to show the exact injury done by each — the jury have the right to find that the larger and more powerful animals did the most damage.

Even the case cited by counsel for plaintiff in error does not support, the requests as made.

In an action by a landowner against an upper owner to recover for the pollution of a natural stream and for injury arising from a deposit of debris on his land, the upper owner may prove that another upper owner contributed to the injury independent of his own acts, and thus limit the amount of recovery against himself for the actual injury inflicted by him. Tennessee Coal, Iron & Ry. Co. v. Hamilton, 100 Ala. 252 [14 So. Rep. 167; 46 Am. St. Rep. 48].

It will be noted that the “third” defense simply pleads the facts of there being eight other mines contributing to the injury, if any, and further claims that the defendant is liáble for only a certain aliquot part of the damages, to wit, the one-ninth part.

The requests are along the same line. There was no effort made by the defendant to prove the amount that the other mines contributed to the injury, or to show to the jury the actual injury for which the defendant alone was responsible. The extent of the operations of the defendant’s mine were partially disclosed on cross-examination of some of the defendant’s witnesses. But the defendant remained content, after proving that there were eight other mines which probably did a'dd to the volume of debris east on plaintiff's lands. This would have been ■sufficient if the position of counsel in this court is correct, and he had taken the same position in the court of common pleas.

There was no request by counsel to the court to instruct the jury that there could be no recovery for the injuries inflicted by the other mines, or that the recovery was limited to the actual injury inflicted by the defendant, but the requests proceeded on the idea that the jury shall ascertain the amount of recovery and then divide this amount so ascertained by the number contributing to the injury and the quotient should be the amount to be returned by the jury as their verdict.

We find no authority thus stating the rule. If the defendant claimed that there could be no recovery under the rule involved, such instructions should have been requested and a general exception to the charge is not sufficient. Columbus Ry. v. Ritter, 67 Ohio St. 53-64 [65 N. E. Rep. 613].

But the principle contended for by counsel for plaintiff in error has not received the approval of the courts of this state. In the case of Boyd v. Watt, 27 Ohio St. 259, 269, the Supreme Court sanctions the following as a correct statement of the law:

“It is the fact that they all united in the wrongful act, or set on foot or put in motion the agency by which it was committed, that renders them jointly liable to the person injured. * * *
“Persons who co-operate in an act directly causing injury are jointly liable for its consequences, if they act in concert, or unite in causing a single injury even though acting independently of each other. ’ ’

The instructions of the trial judge clearly followed the rules laid down in this case and we think they are applicable and correctly given in his charge to the jury. The -requests as asked were properly refused.

The trial judge in his charge gave the following:

“If you find from the evidence that the plaintiff is entitled to recover in this action, he is entitled to receive such a sum as will fairly and reasonably compensate him fully for the damages that the evidence shows that he has sustained (by reason of the acts of the defendant, not exceeding, however, the amount asked for in the petition) under tbe rules given you in these instructions, with interest thereon, from the date of the filing of plaintiff’s petition.”

At the hearing of a motion for a new trial, the defendant produced the foreman of the jury and offered to prove by him that the amount of the recovery for actual damages sustained by the plaintiff as found by the jury was $850, and that the remainder of the verdict as returned,, to wit, '$167.95, was interest. An objection being made the court excluded this evidence and the plaintiff in error complains of this action by the court.

We are of the opinion that the exclusion of this testimony, even if erroneous, was not prejudicial. The presumption obtains that the jury understood the charge and applied it. Blashfield, Instructions to Juries See. 376; Davis v. State, 25 Ohio St. 369.

There was no necessity for making 'this proof. If the charge as given to the jury, as to interest, was wrong, the question is saved to the defendant by the exception to the charge.

In the authorities cited herein will be found the grounds of recovery in this class’ of cases. Where the injury is permanent, the courts say that it is a species of appropriation, in that it deprives the owner of all beneficial use of his land. If the plaintiff was deprived of his property, if his property was substantially taken from him, it would seem consonant with right and justice that he should have interest at least from the time he demanded redress. And we think the courts even accorded him more than this.

The charge is justified in the following cases: Cincinnati v. Whetstone, 47 Ohio St. 196 [24 N. E. Rep. 409]; Lawrence Ry. v. Cobb, 35 Ohio St. 94; Railway v. Schultz, 43 Ohio St. 270-275 [1 N. E. Rep. 324; 54 Am. Rep. 805].

Finding no error in the record to the prejudice of the plaintiff in error, the judgment of the court of common pleas will he affirmed at the cost of the plaintiff in error. Judgment for costs; cause remanded for execution; exceptions on behalf of plaintiff in error will be entered.

Norris and McCarty, JJ., concur.