text:
    RAILWAY AND INTERURBAN CROSSINCS.
    [Circuit Court of Logan County.]
    C., C., C. & St. L. Ry. Co. v. Urbana, B. & N. Ry. Co.
    Decided, October Term, 1903.

      Railways — Right of Way Subject to Eminent Domain — Street Use and Railroad Use of Same Land — New Servitudes — Compensation—Use of Street by Street Railway an Ordinary Use — Interurbans may Construct Extensions and Branches — Street and Steam Railway Crossings at Grade — Grant of Franchise to Street Railway not Subject to Review, When — Amendments of Sections 2502, 3437 and 3439, Unconstitutional — Sections 2501 to 2505 and 3437 Construed —Notice Under 2502 Required, When.

    1. The title of a railroad company in land not used as needed for railroad purposes is wholly extinguished by the establishing of a street thereon; hut if the land is used for railroad purposes, such use is not thereby superseded, and in so far as interfered with presents a question of compensation only, which will he deemed to have been adjusted in the proceeding wherein the consistency of the two uses was determined.
    2. Compensation paid by a municipality to a railroad company in a proceeding for the extension of a street over its tracks, by way of damages on account of interference with the company’s use of the land by reason of its being subjected to street purposes, will be held to include all ordinary street uses, but not new servitudes.
    3. Laws relating to grants of street railway franchises- and routes established by municipalities must have uniform, operation throughout the state, which renders unconstitutional the amendments to Sections 3437 and 3439, and also the amendment to Section 2502.
    4. In case of conflict as to municipal lines or extensions, the general provisions of Section 3437 et seq. must yield to the m'ore specific provisions of Section 2505 et seq.

      5. A steam railroad company in an action to enjoin a street railway company from constructing and operating a street railway over its tracks may raise the question whether the notice provided by Section 2502 (repealed, 96 O. L., 96) is a condition precedent to a municipal grant to such street railway company. But an extension of an interurban electric railway into or through a munici- . pality is an original line, and. the notice provided for in Section 2502, and also required by Section 3739 as a condition precedent to tbe granting of a franchise over the streets of the municipality, must be given.
    6. Interurban electric railways may acquire the right from the proper local authorities for the construction of extensions or branches, in accordance with the laws governing street railways.
    7. An interurban electric railway rightfully occupying a street can not be enjoined from crossing a steam railroad at grade, where by so doing the street will not be subjected to other than its ordinary use.
    8. The action of the council of a municipality in granting to street . railway company a franchise in a street which crosses a steam railroad at grade, is not the subject of judicial'review, where it does not appear that in so doing council exceeded its power, or that its action was induced by fraud. Nor would a review be authorized by a showing to the effect that a safer crossing could be made on another street
    Appeal from Logan' County Common Pleas Court.
    Plaintiff is a steam railroad company and owns and operates two lines of railway both of which pass through the city of Bellefontaine and cross Columbus avenue, a street of said city, at grade. These crossings of said street and railroad lines are in the immediate vicinity of the passenger and freight stations, the railway yards, the roundhouse and the extensive machine and repair shops of plaintiff. Beside the necessary use of these railway tracks across said street in shifting cars and making up trains, more than twenty-five regular trains of plaintiff pass over said crossing every twenty-four hours. Some of these trains transport United States mails and others of them are engaged in the business of interstate commerce. The roadway of Columbus avenue, as it approaches these lines of railroad, descends at quite a rate from a higher elevation or grade to the level of said railroad tracks and somewhat abruptly ascends at and from the other side thereof. The private grounds abutting upon ‘and adjacent to said avenue and railroad at these crossings are several feet higher than the surface of either the avenue or the railroad tracks and are built upon. By reason of such condition the view of the street from a train on plaintiff’s railroad approaching said crossing and the view of the railroad track from a vehicle approaching the same, is obstructed until a point is reached, within a short distance of the point of crossing. Sandusky avenue is a public street of said city running parallel with Columbus avenue, about 450 feet distant therefrom, and crossing plaintiff’s said tracks by mean® of bridges or overhead crossings.
    Plaintiff or its predecessor in title was the owner in fee of the land now included between the lines of Columbus avenue and near its said track and upon which its tracks are now located, prior to the establishment of Columbus avenue as a public street, and plaintiff now claims to be such owner “subject only to the right if persons, animals and vehicles to pass along said avenue and over said tracks.”
    Plaintiff and its predecessor in title have maintained said railroad tracks in their present location' for more than fifty years prior to May 6, 1903, when this action was commenced.
    Defendant is an Ohio corporation and its charter purports to authorize it to build, maintain and operate a street railway with single or double tracks and all necessary and convenient branches and all other appurtenances using.electricity as a motive power for the transportation of passengers, baggage, express matter, United States mail and freight, the termini being the cities of Urbana and Toledo, Ohio, and the road passing through this county and into or through certain other named counties of this state. By ordinance passed April 23, 1901, the provisions of Sections 2501 and 2504, Revised Statutes, inclusive, being strictly observed, the city council of this city granted authority to defendant to construct ‘and operate a line of street railway along and upon Main street in this city. This ordinance has since remained unrepealed, and defendant has claimed under it, at all times since its passage, and has since constructed and is now operating said Main street line in accordance with the terms of said ordinance. Said Main street crosses Columbus avenue at right angles 'and extends north and south in the general direction of a line from Urbana to Toledo.
    October 21, 1902, the requisite “consents” of property owners first having been obtained, but without any notice as provided by Section 2502, Revised Statutes, having been given, the city council of this city passed an ordinance and thereby in form granted to defendant the right to construct a line of street railway connecting with and branching from said Main street line at the intersection of Main street and Columbus avenue and extending thence on and along Columbus avenue to the west line of said city. This Columbus avenue line, if constructed in accordance with the terms and conditions of said ordinance, will cross plaintiff’s railroad tracks at grade, and in the construction of the crossing, it will be necessary to remove a section of plaintiff’s tracks and substitute therefor devices known as frog connections and crossings. These devices will not constitute as perfect a track for plaintiff’s railroad as the continuous rail now in use. Defendant intends, unless enjoined, to construct said Columbus avenue line in accordance with the terms of said ordinance, but intends to use frog connections and crossing of the “most approved patterns and materials.” Defendant has never acquired the right to pass along said avenue and across said tracks by condemnation or contract with plaintiff.
    To construct its principal line from the termini of its Main street line is deemed by defendant, that for just and sufficient reasons, to be impracticable, and defendant has mo franchise to construct any line of street railway on any other street or streets of said city except upon Main street and Columbus avenue, and only upon these as heretofore stated. Upon these facts, some of which are admitted by demurrer to a certain cause of action, plaintiff seeks an injunction against the construction of said grade crossing. The following distinct grounds are urged by plaintiff: First, plaintiff owns the land sought to be taken by defendant and the right so to take has not been acquired by defendant; second, the statutes under which the city council passed the ordinance of October 21, 1902, are unconstitutional and void; third, if said statutes are valid, the ordinance is nevertheless void because no notice was given as required by Section 2502, Revised Statutes; fourth, defendant has by law no power to construct branches, notwithstanding the terms of its charter; and fifth, the proposed crossings- are so dangerous to plaintiff’s property and to the travelling public and the proposed use will so impede the movement of plaintiff’s trains and so interfere with plaintiff’s transaction of interstate commerce and transportation of United States mails, that a court of equity should interfere by injunction for these reasons alone.
    Mooney, J.; Day, J., and Norris, J., concur.
   It will be convenient to consider the asserted grounds for an injunction in this case in the order heretofore stated.

“More than fifty years” before the commencement oi this action, general power was conferred upon cities and villages to lay off and establish streets (50 O. L., 223). This power has ever since existed. Land held by a railroad corporation, whether acquired by it by purchase or appropriation, Which is not employed in nor needed for the proper exercise of its corporate franchises, can be taken for a public use, the same as the lands of any other owner. Railway Co. v. Village of Belle Centre, 48 Ohio St., 273.

Under the general authority to establish streets, a city or village may establish streets across íands which are subject to the franchises of a railroad corporation, provided the second use for which the land is taken is, in the circumstances of the particular ease, reasonably consistent with the former use. The land may, in such case, be subjected to the additional use, but the former use may not thereby be wholly defeated. Little Miami Ry. Co. v. Dayton, 23 Ohio St., 510.

“By the extension of the street, the land is subjected to an additional use, but the former use is not superseded; and, in so far as it is interfered with, the question becomes one simply of compensation.” Little Miami Ry. Co. v. Dayton, supra, p. 519.

Columbus avenue has been established as a public street across lands owned by plaintiff, some of which land then was and some was not used or needed'for railroad purposes. Plaintiff’s title in the land not so used or needed was absolutely extinguished by establishing the street. In the proceeding to establish the street, the consistency of the use of the lands occupied and used by the tracks for both railroad and ordinary. street purposes was determined, and any interference with the railroad company’s use of the land for railroad purposes, by reason of the use of the land for ordinary street purposes being “simply a question of compensation” must be deemed to have been adjusted in that proceeding. This compensation, while including all use of the land for street purposes, would not cover new servitudes upon the land taken. The construction of a line of street railway along a street is an ordinary street use and is not a new servitude entitling the owner of abutting property, or of the fee of the street subject to the street easement, to further compensation.

“So far as the carrying of passengers by this mode is concerned, it differs in nothing from the exercise of the common right of carrying them by coaches and omnibuses; and everything needing a grant,. or the further authority of law, is the right to place and maintain in the highway, the necessary conveniences for this neiw description of carriages.” C. & S. G. Ave. St. Ry. Co. v. Cumminsville, 14 Ohio St., 523, 545.

Moreover, plaintiff expressly states in its petition that its asserted title and ownership is subject to the “right and use of persons, animals and vehicles traveling upon or passing along the said avenue as a public street and highway.” A street car, propelled by electricity is, within this admission, a vehicle, (Cincinnati St. Ry. Co. v. Snell, 54 Ohio St., 197). See generally as a full and correct statement of the law of this branch of the case C. & H. Elec. St. Ry. Co. v. Railway Co., 21 C. C., 391 (affirmed without report, Ralway Co. v. Railway Co., 64 Ohio St., 550). Plaintiff, then, has no such ownership of, or title to, the lands in question as requires defendant to proceed by appropriation, or otherwise acquire the right from plaintiff as a condition precedent to the construction of the proposed line of street railway.

The ordinance of October 21, 1902, depends for its validity upon Section 2505, Revised Statutes. This section refers to Sections 3437 to 3443, Revised Statutes, inclusive, and requires proceedings thereunder. Sections 3438 and 3439, Revised Statutes, were last amended and in the present form enacted April 18, 1883 (80 O. L., 173). It is asserted by plaintiff that the act is unconstitutional and void, and the ordinance in question is therefore invalid. By Section 26, Article II, of the Constitution “all laws of a- general nature are required to have a uniform operation throughout the state.”

“Whenever a law of a general nature having a uniform operation throughout the state can be made fully to cover and provide for any given subject-matter, the legislation, as to such subject-matter, must be by general laws, and local or special laws can not be constitutionally enacted as to such subject-matter.” State v. Spellmire, 67 Ohio St., 77.

The grant of street railway franchises by municipalities or other public agencies, and the establishment of street railway routes by them, can be covered and provided for by general laws. The possibility is demonstrated by the fact that it has - been done. It is provided in the act of April 18, 1883, “that this act shall not apply to any county containing a city of the second grade of the second class.” This proviso except Montgomery county from the operation of the amended sections. If the proviso is to be taken as an integral part of the act, there can be,, we think, no doubt that this enactment of a general nature is not valid law, because it does not have uniform operation throughout the state. Now the proviso equally with the other terms of the act is expressive of the legislative will. On the one hand the Legislature wills and declares that the existing statutes shall be altered and amended so far as eighty-seven counties of the state are concerned, and on the other hand it wills and declares that the existing statutes shall remain in force unaltered and unamended so far as Montgomery county is concerned. The act voted upon was intended no less to accomplish one purpose than the other, and both purposes were intended to be carried into effect by the act.. The Constitution prevents not only the accomplishment of the one purpose, but also of the other and of both together.

In State v. Buckley, 60 Ohio St., 273, it was held:

“1. When an act of the General Assembly, required to have uniform operation throughout the state, expressly excepts from its operation one or more' cities or counties, such act by reason of such exception is unconstitutional and void.
“2. Such an exception can not be held invalid and thereby extend the act over the excepted territory, because in such ease the General Assembly never enacted the statute in such territory, and the court has no power to enact it therein.”

"What is true of Section 1 of the act referred to is equally true of Section 2 thereof — the repealing section. The Legislature never declared its intention to repeal said sections as to the whole state, but only as to certain counties (less than all), leaving the former statutes in force in one county.

. To permit such partial repeal would indirectly accomplish the very purpose which the constitutional provisions were designated absolutely to prevent. The repealing section is therefore void also. The general rule that “where a repeal of prior laws is inserted in an act in order to secure the unobstructed operation of such act and it is held unconstitutional, the incidental provision of prior laws will fall with it,” also sustains the invalidity of the repealing section. State v. Heffner, 59 Ohio St., 368; State v. Buckley, 60 Ohio St., 273; State v. Hall, 67 Ohio St., 303.

The act of April 18, 1883 (80 O. L., 173), is void, and because of its invalidity Sections 3438 and 3439, as they appear in the Revised Statutes of 1880, are unamended and are still in force. Section 2502, Revised Statutes, as sought to be amended by said act, was subsequently amended to be free from any constitutional infirmity. The subsequent amendment of the section (88 O. L., 389) is invalid for reasons heretofore stated. This state of the laws leads to the next ground for relief urged by plaintiff.

Was notice as provided by Section 2502, Revised Statutes, necessary ás a condition precedent to the passage of the ordinance of October 21, 1902? No such notice was given, and since plaintiff will suffer some inconvenience from the construction as well as operation of the street railway, plaintiff is a proper party and in this action has the right to raise the question.

To answer the question will require a brief review of the street railway legislation of this state. Prior to March 3, 1860, all street railways in this state were constructed either by individuals or by corporations organized under special legislative charters passed before the present Constitution was adopted, or by corporations organized under the general corporation act passed May 1, 1852. No express power or authority was conferred upon municipalities to grant the use of the streets to any such company or individual prior to March 3, 1860, and the right of such use and occupancy if derived from municipal authority, must 'have been granted under the general authority to control the streets. On the date last mentioned there was passed “An act relating to cities of the first class having a population exceeding 80,000 inhabitants” (57 O. L., 16). In Sections 15 and 16 of this act, power to grant the use of the streets for street railway purposes and to prescribe by ordinance the terms and conditions of such occupancy is given with the requirement of “consents,” notice of applications and bids, and it is prudently provided that “all reductions of the rates of fare shall inure to the benefit of the passengers carried.”

April 10, 1861 (58 O. L., 66), an act entitled “An act to provide for and regulate street railroad companies” was passed. Section 5 of this act requires the consent of the council or corporate authorites of the city, town, or village wherein such railroad is to be constructed before such road is constructed or commenced, and said company may agree as to terms and conditions upon which' the streets are used and the road operated. Cities of 80,000 population are excepted from the operation of the act. Section 7 provides that street railways may be located and constructed in part within, and in part without, the limits of any city, town or village, and any railroad constructed within the limits' of any city, town or village, may be extended without the limits thereof. Provided, that before so extended, the company, or public officer or public authorities owning or having charge of any road, street, avenue, public way or grounds without such limits shall agree upon the terms and conditions upon which the same shall be occupied or used.

March 27, 1866 (63 O. L., 55), an act supplementary to the foregoing was passed by Section 6, of which Sections 15 and 16 of the act of 1860 and Section 5 of the act of 1861 were expressly repealed. This act relates only to the construction of street railways within municipalities. Section 1 requires consent of the council. Secton 2 requires the council to prescribe terms and conditions of use, public notice of intent to make the grant, and that no such grant shall be made except to the individual company or corporation that will agree to carry at the lowest rates of fare. Section 3 requires the consents, in writing, of a majority of the owners of abutting lots, to be filed with the council and the council shall so declare, by resolution or ordinance, before the road is constructed, unless by Section 4, by proper proceedings, the damages of the persons "not consenting and waiving damages, are determined, and the rights of such persons acquired in and by appropriation proceedings. Section 5 regulates the procedure.

April 10, 1867 (64 O. L., 122), Section 7 of the act of April 10, 1861, was amended and the original section repealed. The extent of the amendment is not here material.

April 28, 1868 (65 O. L., 112), Section 3 of the act of March 27, 1866, was amended so as to require the filing of written consents by a majority in interest as a condition to granting the franchise.

May 7, 1869 (66 O. L., 149), the municipal code was passed. Sections 411 to 414 of this code regulate street railroads. These sections, in order, to provide that, upon written application by a company, the council may grant permission to construct such railway and prescribe terms and conditions upon which, and the manner im which the same shall be operated; that no such ordinance shall be passed until notice of the application has been given, and no such grant shall be given except to the company, etc., that will agree to carry at lowest rates of fare. The remaining sections relate to the grade of the streets and paving between the rails. Sections 1 and 2 of the act of March 27, 1866, were repealed by this code. On the same day that the municipal code was passed, and Sections 1 and 2 of said act repealed, there was passed another act (66 O. L., 140) as follows :

“It shall be lawful for the council of any city or incorporated village to grant permission by ordinance to any person or company, owning or having the right to construct any street railroad, to extend their tracks, subject to the provisions of Sections 4 and 5 of said act passed March 27, 1866, on any street or streets where the said council shall deem such extension beneficial to the public. And when any such extension shall be made, the charge for carrying passengers on any street railroad so extended, and its connections made with any other road or roads, by consolidation under existing laws, shall not be increased by. reason of such extension or consolidation; said sum shall include the government tax. ’ ’

February 19, 1870 (67 O. L., 10), the act of April 10, 1867, amending Section 7 of the act of April 10, 1861, was amended in part as follows: ‘ ‘ Street or horse railroads may be located and constructed, part within, part without, or wholly without the limits of any city, town or village; and any such road heretofore or hereafter constructed within, or part within, or wholly without the limits of any city, town or village, * # * may be so constructed or extended along or under the National road, or any other road, street, avenue, turnpike, public way or ground, in accordance with the provisions of an act entitled ‘an act to' provide for and regulate street railroad companies, passed April 10, 1861; provided, that, before such construction or extension, the company, public officer or public authorities, .owning or having charge of any such road, * * * shall agree with such railroad company upon the manner, terms and conditions upon which the same shall be occupied or used;” and in case the national road is used the board "of public works of the state shall so agree. In this state of the law the Revised Statutes were passed as a single act. Sections 411, 412, 413 and 414 of the Municipal Code with some amendments became Sections 2501, 2502, 2503 and 2504, Revised Statutes.

The act (66 O. L., 112), was amended to read as follows:

“No such grant shall be made until there is produced to council, or the commissioners, as the case may be, the written consents of the owners of more than one-half of the feet front of the lots and lands abutting on the street or public way along which it is proposed to construct such railway or extension thereof; and the provision of Sections 2501 and 2503 to 2505, Revised Statutes, inclusive, so far as they are applicable, shall be observed in all respects, whether the railway proposed is an extension of an old or the granting of a new route. ’ ’

This amendment became Section 3439, Revised Statutes.

March 9, 1880, Section 2505, Revised Statutes, was amended so as to make the extension therein provided for, subject to Sections 3437 to 3443, Revised Statutes, inclusive, instead of subject to Sections 4 and 5 of the act of March 27, 1866, as theretofore therein provided. It will be noted that now Section 2505, Revised Statutes, makes extensions within municipalities subject to Section 3439, Revised Statutes, et seq., and Section 3439, Revised Statutes, is subject to Section 2505, Revised Statutes, et seq., whenever the same shall be applicable.

It is very evident that Sections 2501 to 2505, Revised Statutes, inclusive, standing alone, relate to street railway lines located and extended wholly within municipalities, while Section 3437, Revised Statutes, et seq., relate to all lines and extensions wherever located. In case of conflict as to city lines or extensions, the more general provisions of Section 3437, Revised Statutes, et seq., must yield to the more specific provisions of Sections 2501, Revised Statutes, et seq. ■ Section 2505, Revised Statutes, relates expressly and exclusively to extensions within a city of original city lines. It is evident as this section was first enacted and as the same was first carried into the Revised Statutes of 1880, no notice was required to be given of an application for an extension. The act being made expressly subject to Sections 4 and 5 of the act of May 27, 1866, it will not be presumed that it was subject to other sections of the same act not specified. Nor will the fact that it was placed by the codifiers after Sections 2501 to 2504, Revised Statutes, have the effect to alter its construction or meaning. Allen v. Russell, 39 Ohio St., 336, 337; State v. Auditor of Darke Co., 43 Ohio St., 311, 315; State v. Stockley, 45 Ohio St., 304, 308, 309.

When Section 2505, Revised Statutes, was last amended, if it was desired to make the same subject to Section 2502, Revised Statutes, as to notice, the arrangement of the sections would certainly have 'suggested a direct reference to Sections 2502, Revised Statutes, in terms. Instead of this, the operation of the section is expressly made subject as stated to Section 3439, Revised Statutes, et seq., and Section 3439, Revised Statutes, requires that the provisions of Section 2502, as well as Section 2505, Revised Statutes, shall be observed in extensions or new routes granted.

Since Section 3439, Revised Statutes, refers to new routes, and Sections 2501 to 2504, Revised Statutes, relate to new routes, and the same section (Section 3439, Revised Statutes) refers to extensions, and Section 2505, Revised Statutes relates to extensions, it would seem that the fair rendering of Section 3439, Revised Statutes, upon the point now under consideration, is the same as though the concluding clause were, “and the provisions of Sections 2501 to 2504, Revised Statutes, inclusive, in the granting of a new route, and Section 2505 in granting an extension, so far as said sections are applicable shall be observed in all respects.” The history of the legislation, as well as the language of Section 3438, Revised Statutes, shows that an extension from without, into or through a municipality, is, as to the part of the line within the municipality, a new route. At the very must it can not be contended that Section 3439, Revised Statutes, requires the observance of Section 2502, Revised Statutes, et seq., only when the same are applicable. They are not applicable in all cases covered by Section 3439, Revised Statutes, to-wit, a line constructed wholly without a municipality or an extension of such line not into or through a municipality. In such case municipal officers would have no duty in the premises and the sections only enjoin duties upon such officers. In still other cases of extensions the provisions of Section 2502, Revised Statutes, should be held to apply only if the case is within the reason of each section. Section 2505, Revised Statutes, relates only to extensions and these may be granted. An extension can only be predicated of an existing line or a present right to construct a line — a person to apply for an extension must be the owner of a line or have a present right to construct a line. The statute does not make the right to grant an extension depend upon the fact that there are two or more owners of existing lines or of two or more ■present rights to construct lines in- the municipality.

The notice required by Section 2502, Revised Statutes is a means to secure reduced fares by competitive bidding. To bidding there must be at least two qualified bidders. In the case at bar there is neither pleading nor proof that when the ordinance of October 21, 1902, was passed, there was any person, persons or corporations other than defendant that could make application for the Columbus avenue extension or could receive a grant of it as an extension. Again, if there were two or more such corporations or persons, their lines existing or proposed would not be identical.

By Section 2505, Revised Statutes, a trip for a single fare over the original line and over the extension is contemplated. If notice were given and bids received each company would bid for a trip over its own line, plus the extension proposed. Since each original line would be different, the bidders would submit their proposal not with reference to the same but a different service. In such case it would be impossible to determine whose bid was “the lowest.” But Section 2505, Revised Statutes, does not omit reference to fare, nor omit a means by which the charge is to be fixed. It has an express provision upon the subject:

“The charge for carrying passengera on any street railway so extended * * * shall not be increased by reason of such extension. ’ ’

In the absence of all regulation such company could exact a reasonable fare. The function of legislation is to limit. When regulation is attempted, and a specified charge prohibited, or a limit fixed, any charge within the limit or not prohibited may be exacted. Hence, the provision quoted, that the rate of fare fixed for the original line, shall not be increased upon the line as extended, is by construction tantamount to a provision that the former charge need not be reduced by reason of the extension.

Terms implied from the express terms of a statute are as much a part of the statute as the express terms themselves. By the terms express and implied of Section 2505, Revised Statues, the rate of fare is fixed for the extended line. And for this as well as the other reasons heretofore stated, it results - that to give notice of the application for an extension in the ease at bar, would be a vain thing. The observance of Section 2502, Revised Statutes, as to notice is then not required by Section 3439, Revised Statutes, in the case at bar, because it is not in any degree .applicable. If the extension were from an original line wholly without the municipality, into or through the municipalty, such extension would be, as to such municipality, an original line or new route, and in such case, Section 2502, Revised Statutes, and the other sections would apply. But that is not this case. 91 O. L., 285, Section 6.

As to the right to construct branches: Defendant’s charter constitutes it an interurban electric railway.

“An interurban electric railroad is classed as a street railroad by the statutes of this state.” C., L. & A. Elec. St. Ry. Co. v. Lohe, 68 Ohio St., 101.

“Suburban and interurban railroads, * * * having been classified by the Legislature of the state of Ohio with street railroads, are governed by the laws relating to street railroads. ’ ’ C. & H. Elec. St. Ry. Co. v. Railway Co., 21 C. C., 391.

A street railroad company may construct an extension of its lines even beyond the termini specified in its charter (Sims v. Railway Co., 37 Ohio St., 556). Hence defendant, after securing the right to do so, as required by law, from the proper local authorities, can construct extensions, and.there may very well be, and most generally are, branches from its main line.

The danger of these proposed grade crossings as a ground of equitable relief.

This ground for an injunction as set out in plaintiff’s pleadings involved two questions: one of fact as to the danger of the proposed crossings; the other of law as to the effect of the dangerous nature of the crossings, if either of them be in fact dangerous.

We find, as matter of fact, that there is nothing in the location of these crossings, or either of them, or in the grades at which the tracks of plaintiff are approached by the said street, or in the proposed construction or manner of operation of defendant’s street railroad, that will render either of the proposed crossings in any degree more dangerous than a grade crossing of a street railroad with a steam railroad at a convenient grade in a city must ordinarily and necessarily be. On the other hand, by reason of the proximity of plaintiff’s depots and the usual stopping places of its trains-, the use of its railroad yards in the near vicinity, the existence and operation of plaintiff’s block system and the resulting present control which plaintiff will and must have over the movement of its trains at these points — all these render the proposed crossings much less dangerous than such grade crossings ordinarily are.

If the fact were otherwise, the result in law in this state would not be different.

“In the absence of statutes regulating the place and manner of crossing, and when the rights- of the public or one or other of the intersecting (steam railroad) lines will be materially injured, a court of equity may enjoin a grade crossing.”

This rule does not apply to street crossings with steam railroads, and if it does not apply to streets in general, it does not apply to the use in all ordinary ways of such street, and as we have seen, the use of the streets for street railway purposes is an ordinary use. In Railway Co. v. Defiance, 52 Ohio St., 262, it was held that “the comparative dangers in the use of grade and overhead crossings, and the relative public benefits and private disadvantages that may result from a contemplated improvement of the streets, are matters for the consideration of the members of the council, who are the sole judges of the propriety, as well as the necessity of the improvement; and their decision, when not transcending their powers, nor induced by fraud, is not subject to judicial revision”; and in the same case, on error to the Supreme Court of this state, it was held by the United States Supreme Court in Wabash Ry. Co. v. Defiance, 167 U. S., 88:

“It is within the discretion of the common council to determine whether the public exigencies require that the grade of a street be so changed as to cross a railroad at a level.”

And in the opinion by Mr. Justice Brown, on page 491 it is said:

“While the modern policy of railway engineering usually tends to the abolition of grade crossings, there is no hard and fast rule upon the subject, and it may well be that the exigencies of a certain street or locality may demand that travel shall descend to the level of the railway rather than ascend to a bridge built over the track. But however this may be,'we are not at liberty to inquire whether the discretion vested in the common council in determining this question was wisely exercised; * * * or whether the crossing so improved was burdensome to the railroad company; or made unsafe to persons crossing the track. These were considerations which might properly be urged upon the common council as arguments against the proposed change; but it is beyond the province of the courts either to praise the wisdom or criticise the unwisdom of such action.”

The case before that court was one in which the council of the city of Defiance had resolved to abolish an overhead crossing and establish a grade crossing in its stead. Yet the court said: “The question before us- is simply whether the council had the power to make the change, and of this we have no doubt.” The cases cited announce and determine the questions arising u-pon this last branch of the case at bar as far as the law of Ohio is concerned; and whether the railroad company complainant be one lying wholly within this state or extends into other states, and whether engaged in state or in interstate commerce.

The suggestion that Sandusky avenue can be used as a highway upon which a safer and better crossing can be constructed is met by the fact that defendant has no present right to use that street, and since to acquire it defendant must first obtain the necessary consents of a majority in feet front of the owners of abutting lots (consents which such lot-owners may grant or refuse as they freely choose), and after these consents are obtained the right is further dependent upon the voluntary action of the council, it can not be assumed that defendant will ever acquire any right to use that street.

We are of opinion that the equities of the case are with defendant. The temporary injunction is dissolved and plaintiff’s petition is dismissed. Costs to plaintiff. Judgment for costs and execution awarded and the cause is remanded to the court of common pleas for execution.

West & West and L. J. Hackney, for plaintiff.

A. J. Miller and Pomerene <& Pomerene, for defendant.


source: Caselaw Access Project

license: Public Domain

text:
    PARTITION PROCEEDINGS PREMATURELY BROUGHT.
    [Circuit Court of Hamilton County.]
    Henry W. Steinman v. Anthony G. Steinman et al
    Decided, February 16, 1905.

      TWills — Provision for Postponement of Division of Estate — Suit for Partition and Other Relief Prematurely Brought — Jurisdiction Attaches, How — And Once Having Attached, is Retained for all Purposes.

    1. The provision of a will wherein the testator advises that a division of his real estate be postponed for two years after the death of his wife, to whom it was devised for life, is a valid provision; and a suit for partition brought before the expiration of the two years is prematurely brought and can not be maintained.
    2. But where a suit for partition in such a case includes a prayer for an accounting and other equitable relief, the action may be maintained for such other purposes, and the court having thus acquired jurisdiction, will retain it for all purposes, and decree partition after the expiration of the two years.
    Swing, J.; Jelke, J., and Gieeen, J., concur.
    This was an action for an account of rents and profits and other equitable relief, including partition of certain real estate. The petition was filed May 20, 1903. The real estate in question formerly belonged to Louis E. Steinman, who died in 1896 testate. By his will, said Steinman devised said real estate to his wife for life with remainder to his children. The widow of said Steinman died July 22, 1902.
   The ninth clause of the will is as follows:

“It is my desire that my estate be kept intact and undivided .for' a period of two years from and after the death of my said' wife, or in the event that she do not survive me, then for a period of two years, from the date of my decease; I do not intend, however, that this desire shall operate to prevent any sale or other disposition of any part of my estate which all my children should deem advantageous or desirable during the period of two years above specified, but simply advise that no haste be exercised in the closing up of the estate, leaving the ultimate division of the same until the termination of the period of two years aforesaid. During said period of two years I hereby direct, authorize and empower my two sons, Anton Gottlieb and Edward Frederick to collect and receive all rents and other income from my estate, accounting therefor in a proper manner to the parties legally entitled thereto.”

Plaintiff alleged in his petition that he is entitled to the one-fifth part of the real estate left by his father and that the defendants, his two brothers and two sisters, are each entitled to the one-fifth part thereof. He further alleged that none of the defendants object to a partition of the property before the expiration of the two years mentioned in said item nine of said will. This allegation of the petition, however, was denied by Amelia M. Wicker, one of the children of said Louis E. Steinman, and one of the defendants in the action. So that the question was directly raised by this answer as to the right of the plaintiff to file a petition asking for partition before the expiration of the two years from the death of the widow, Marie C. Steinman.

We are of the opinion that this provision of the will is valid, and that it prohibited a partition of the real estate left by testator until two years after the decease of his widow, Marie C. Steinman; and following the case of Hill v. Jones, 65 Ala., 214, we are inclined to the opinion that any suit brought to partition the real estate before the expiration of said two years could not be maintained, for- the reason that the same was prematurely brought, and that plaintiff had no subsisting cause of action.

But the petition of the plaintiff in this ease was something more than a suit for partition. It was a suit for an accounting and other equitable relief, and also for a partition at the earliest possible time It is true that in the decree in the court of common pleas only a decree for piartition was entered, but all other matters were retained for the further decree of the court.

We see no reason to question the right of the plaintiff to maintain his action for an accounting and the other equitable relief asked, nor do we see any reason to question the right of the court to grant the equitable relief asked by the executors in said action upon the answer and cross-petition filed by them. Therefore the action of plaintiff was properly brought, and applying the principle that when a court of equity once gets jurisdiction of a subject matter it will afford complete relief, we are of the opinion that the court of common pleas had the right in this action, after the expiration of two years, to order a 'decree of partition.

This doctrine of equity is thus spoken of by Van Zille, in Equity Pleading Practice, at page 630:

“But where a court of equity has obtained jurisdiction of the cause upon some clear, equitable ground of jurisdiction, it will retain the cause irrespective of the question of ouster or adverse possession, and do complete justice, though it may involve partitioning the property. This is but following out the theory that obtains in every equity cause; a court having once obtained jurisdiction will retain it until the whole controversy at issue between the parties is settled.”

In Freeman on Co-tenancy and Partition, page 598, it is said:

“Hence, when a suit is rightfully in equity, and from the adjudication there made it appears that the parties are co-owners and entitled to partition, a decree for such partition may be made irrespective of the question whether the plaintiff is seized or disseized. Thus, where the defendants were in possession claiming under a will, and the complainants filed a bill to have the will construed, and for an accounting and partition, the court held that having acquired jurisdiction for the purpose of construing of the will, it had authority to do complete justice between the parties by compelling an accounting and partition.”

And further says:

“When the questions are such as belong to a court of equity, there can be no reason for suspending the proceedings short of complete justice between the parties.”

Chas. J. Hunt and O. W. Bennett, for the appellants.

Tugman & Baker, for the appellees.

The same author, on page 599, in discussing “partition’•’ adds this general remark:

“In truth, the limitations attending proceedings in partition are constantly weakening, and the tendency to do full and complete justice to the parties in one action is becoming irresistible.”

In the case of Scott v. Guernsey, 60 Barb., the court say at page 178:

“There can be no doubt that the accounting ordered between these tenants in common was proper in this case. This is not the statutory proceeding for partition, but a suit in equity; and therefore, as the court has jurisdction of the subject matter and the parties in interest, it is in accordance with a well established rule that it should do complete justice between the parties by disposing of all questions between them in relation to the land and its use. In the language of Judge Story, ‘the jurisdiction having once rightfully attached, it shall be made effectual for the purpose of complete relief.’ Besides, this action is brought for a partition and account, and in such case the latter will be'decreed.”

To the same effect is the language of the court in Hosford v. Merwin, 5 Barb., page 52, where it is said:

“A court of equity will not entertain a bill for partition when the legal title is disputed or doubtful; because a court of law is the proper tribunal to determine such questions. But when the questions are such as belong to a court of equity, it will not suspend the proceedings without doing complete justice between the parties.”

Partition will be decreed.


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    TITLE TO LAND SOLD FOR DELINQUENT TAXES.
    [Circuit Court of Lucas County.]
    James M. Wolcott v. Elizabeth Holland et al.
    Decided, October 17, 1904.

      Delinquent Tax Sales- — Statute of Limitations Runs Against Purchaser —From the Date He was Entitled to Receive a Deed — Auditor’s Deed not Prima Facie Evidence of Valid Title — Regularity of Proceedings must Be Shown.

    1. The statute of limitations begins to run against the purchaser at delinquent sale from the day he was entitled to present his certificate to the county auditor and receive a deed, that is, two years after the date of the sale; and after twenty-one years from the time the statute begins to run, without having demanded such deed, an action of ejectment by the purchaser against the delinr quent tax owner is barred, although the legal title to the land sold at delinquent tax sale does not vest in the purchaser until the auditor’s deed is in fact executed.
    2. The auditor’s deed to a purchaser at delinquent tax sale is not prima facie evidence of a good and valid title, as provided in Section 2827, unless it appear that the preliminary proceedings on the part of the county auditor and treasurer were regular and in conformity with the statutes governing such sales.
    Hull, J.; Haynes, J., and Parker, J., concur.
    Error to Lucas County Common Pleas Court.
   This is an action in ejectment, and a jury having been waived, it was tried to the court of common pleas without a jury, and a finding made in favor of the defendants, upon which a judgment was entered and the petition dismissed. It is to reverse that judgment that a petition in error was filed in this court.

The defense made was that the action was barred by the statute of limitations; that the plaintiff’s cause of action had accrued more than twenty-one years prior to the commencement of the action, and therefore, was barred under Revised Statutes, 4977.

The plaintiff claims title under a tax deed of land sold at delinquent tax sale, under Revised Statutes, 2877. The case was tried on an agreed statement of facts; m> other evidence was ■offered by either party. It appears from that that the land was sold for delinquent taxes at the courthouse in Toledo, on January 19, 1860, to V. H. Keteham, and the tax certificate showing his purchase was. issued to him as provided by law; • that Keteham assigned the certificate for a valuable consideration and delivered it to J. T. Newton, anti that Newton' assigned and delivered it to plaintiff. It appears further from the agreed statement of facts that on December 14, 1882, the plaintiff presented his tax certificate to the auditor of Lucas county, who, at the request of the plaintiff, executed and delivered to him a tax deed for the property; that that was filed with the recorder the next day and was) duly recorded; that neither Keteham, nor Newton, nor the plaintiff, nor any of them has ever occupied or been in possession of the property, or paid any taxes or assessments thereon, except the amount paid by Keteham to the treasurer of Lucas county for said tax certificate. That prior to January 9, 1860, which was the date of the sale, one W. W. Wolcott owned the property in fee simple and was in possession and occupation of it; and that he continued in the possession, occupation and control of it until June 18, 1868, when he sold the property by warranty deed to George Holland.

This deed was duly recorded and said George Holland occupied and was in possession and control of the property and paid all the taxes and assessments upon it from the date of his purchase until his death in .the year 1902, and from that time the defendants, who are his heirs at law, have been in possession and control of and have occupied the premises and paid all taxes and assessments upon them down to the time of the commencement of this suit. This action was commenced by the service of summons on June 5, 1903, which was a few months less than twenty-one years from the time the tax deed was executed and delivered by the auditor to the plaintiff.

Under Revised Statutes, 2876, the plaintiff or his predecessor was entitled to a deed two years after the date of the purchase on January 9, 1862, so that this suit was commenced a few months more than forty-one years after the time the parties were entitled to have a deed executed by the auditor, upon the presentation of the tax certificate. So that it appears from this statements of facts that twenty-one years had not elapsed by a few months from the time that the deed was executed to the plaintiff and before the commencement of this suit.

It is claimed by the plaintiff that his cause of action did not accrue until the deed was executed to him by the auditor; and that therefore his claim had not been barred at the time of the commencement of this action.

It is claimed by the defendants, through their counsel, that the statute of limitations began to run against the plaintiffs at the time he or his predecessor might have had the deed executed by the auditor, to-wit, two years after the sale, which would be January 9, 1862; and that the statute- of limitations began to run upon that day, or the next day, although no deed was in fact executed until twenty years later; and therefore it is claimed that at the time this action was commenced in June, 1903, the statute of limitations had been running over forty years, and that as a consequence of that, the plaintiff’s claim was barred.

The plaintiff in error cites the- case of State v. Godfrey, 62 Ohio St., 18, to sustain his claim that the cause of action did not accrue until the deed was executed. The first paragraph of the syllabus is:

“A sale of land at a delinquent tax sale does not vest in the holder of a certificate- of purchase at such sale the title to the property so sold; but the'holder of such certificate acquires a right to be invested with the title to such land at the expiration of two years from the sale, if not redeemed.”

And it is clear, as stated in this decision of the Supreme Court that the legal title to the property does not vest in the purchaser until the deed is in fact executed.

But the plaintiff could not, by his own act, put off the running of the statute of limitations for this long length of time, or indefinitely, by neglecting to go to the county auditor and request that a deed be executed to him, which he had the right to do two years after the date of the sale, and authorities are cited by the defendants in error which sustain that proposition, especially some Iowa cases. The case of LaRue v. King, 74 Iowa, 288 (37 N. W. Rep., 374), is one of them, and in the second paragraph of the syllabus this is found:

“The statute of limitations begins to run against a purchaser at a tax sale at the time he might obtain a deed, i. e., three years after the date of sale; and after five years from the time it begins to run, not only is the tax title extinguished, but all rights which are depending upon it.”

The case of Hintrager v. Hennessy, 46 Iowa, 600, is in point:

“An action by the purchaser at tax sale to recover possession of the property sold for delinquent taxes is barred after the expiration of five years from the time he is entitled to a deed. ’r

The court say on page 602 of the opinion:

“We have no hesitation in holding that as to the purchaser the sale becomes complete whenever his right to a deed becomes perfect, and that the statute- as to him began to run at that time, if not before. In other words, he can not by his own act or laches prevent the running of the statute. It would be unjust or unreasonable to hold otherwise, for if the purchaser may delay taking a deed for five years, why not for ten, or such other period of time when he feels satisfied the owner could not, owing to the lapse of time, death of witnesses, or destruction of records prove the sale fraudulent or void.”

The contention of the defendant in error is correct; the statute of limitations did begin to run against the purchaser of this property at tax sale on the day that he was entitled to present his certificate and have executed to him a deed, to-wit, on January 9, 1862. Tie could not by his own act or failure or neglect to present his certificate postpone for twenty years the running of the statute. If he might postpone it for twenty years, he could for thirty years or for forty. On the day that he became entitled to have the deed executed to him, when he was by law entitled to have the legal title vested in him, so far as it affects the statute of limitations, it must be held that he then became the owner of the property and that his cause- of action then accrued. We think that this is sustained by the authorities generally. The ease of Palmer v. Palmer, 36 Mich., 487 (24 Am. Rep., 605), is in point. The' court say in the last paragraph of the syllabus:

“Whatever may have been the prejudice formerly against statutes of limitations, they are now regarded as just and entitled to be fairly construed; and the cause of action should be held to accrue for the purpose of setting the statute in motion, at least where no delay is contemplated, as soon, as the creditor by his own act and in spite of the debtor can make the demand payable. ’ ’

On page 494 of the opinion, 'the court says:

“We can not but think this to be sound doctrine; whatever may have been the ancient prejudice against statutes of limitation they are now regarded as just and entitled to be fairly construed. If a creditor has the means at all times of making his cause of action perfect, it would be unjust and oppressive to hold that he could postpone indefinitely the time for enforcing his claim by failing to present it. He is really and in fact, able at any time to bring an action, when he can by his own act fix the time of payment. It is no stretch of language to hold that a cause of action accrues for the purpose of setting the statute in motion as soon as the creditor by his own act, and in spite of the debtor, can make the demand payable. It may be otherwise, possibly, where delay is contemplated by the express terms of the contract, and where a speedy demand would manifestly violate its intent. But where no delay is contemplated the rule is just and unreasonable; and the presentment should be reasonably prompt, or the creditor should be subjected to the operation of the statute'. ’ ’

In the case at bar, the plaintiff or his predecessor, at any time after January 9, 1862, could have demanded of the auditor the deed to which he was entitled, and have invested himself with the legal title to this property. Parties saw fit not to ask for this deed for some reason- for more than eighteen years after they were entitled to it, and we think the case comes within the rule- of law laid down in this Michigan case, that at the time when a party could by his own act have perfected his title, it must be held that then the statute of limitations commenced to run- The record does not show what the fact is, but it might be, for aught that appears here, that these defendants or their predecessors have put valuable improvements upon this property; they have occupied it — the defendants-, and their predecessors — over forty years, standing by during all that time, bringing no action to oust them from possession. I say, they may have put valuable buildings, or other valuable improvements upon the land, and it would seem a hard rule that after this long lapse of time, the plaintiff waiting these many years before procuring his deed that he might eject the defendants from their possession at the end of forty years.

In 19 Am. & Eng. Enc. Law (2d Ed.), 193 and 194, this, is stated as the general rule:

“Where, however, it is the right or duty of the claimant to comply with certain conditions in order to render his right of action absolute, or where the performance of the condition is within his power, such performance must be accomplished within a reasonable time, and the statute will begin to run, not from the time of actual performance, but from -the time when it was reasonably practicable.”

A large number of authorities are cited to sustain the proposition that the statute will begin to run, not from the time of the actual performance of this condition, but from the time when it was reasonably practicable; and the time in this case was, of course, when parties might have demanded this deed. There is nothing to excuse the delay. If the record disclosed anything that prevented delivery, -a different question might arise; but nothing of that kind appears; and in the absence of anything of that kind, the statute of limitations, in our judgment,' would begin to run on the day that the right accrued to demand the deed. It seems to us that this is the only fair and just rule. Statutes of limitations were anciently held in disfavor somewhat by the courts; but this is no longer true and they are now regarded rather as statutes of repose; and where a case comes fairly within the limitation laid down by the statute, it should be enforced by the courts. Such statutes are for the purpose of .cutting off stale claims and preventing parties from standing by for forty or fifty years and then undertaking to assert their claims, after it has become impossible on account of the death of witnesses or for other cause to make a defense.

In our judgment, therefore, this claim was barred by the statute of limitations at the time of the commencement of this action.

We are of the opinion further that the plaintiff was not entitled to recover in this case for another reason. The finding of fact shows the date of the sale and the day that the. certificate was presented to the auditor and the deed delivered, but there is no finding and no evidence as to the preliminary steps required by the statute before the sale for delinquent taxes could be legally made. The introduction of the tax deed itself under Revised Statutes, 2877, does not make a prima facie case, and is not sufficient to establish a good title in the plaintiff. The statute is as follows:

“The deed so made by the auditor shall vest in the grantee, his, or their heirs and assigns a good and valid title both in law and in equity, and shall be received in all courts as prima facie evidence of a good and valid title in said grantee, his heirs and assigns.”

In our judgment a deed executed under this statute does not make a prima facie showing of a good and valid title, unless it is also shown that the proceedings prior to that time on the part of the auditor and -treasurer have been regular and in conformity with the statutes governing tax sales; and that, therefore, there being no showing made in this case as to the regularity of the proceedings, no title was proven; not even a prima facie showing of title in the plaintiff was made in the case. In the case of forfeited lands for non-payment of taxes where they have been sold at treasurer’s sale the language of the statute is different, and there the deed itself makes a prima facie case. The statute (Revised Statutes, 2877) says: “The deed so made by the auditor shall vest in the grantee,” etc., and it has been held by the Supreme Court that the phrase, “so made,” is to be interpreted as mad© according to the provisions of the preceding section, governing the sale of land for taxes and providing in what cases the auditor shall have the power and authority to make a deed, and what steps must be taken before he has the authority to make a deed to a purchaser at tax sale, etc.

In the case of Jones v. Devore, 8 Ohio St., 430, the Supreme Court in the syllabus say:

“A valid sale and conveyance of lands by the county auditor for the non-payment of taxes, bars all pre-existing rights of dower, inchoate or perfect.
“Section 39 of the act of March 23, 1840 (38 O. L., 77), ‘prescribing the duties of county auditors’ does not make the deed of the’ county auditor prima facie evidence of a valid title, unless it be shown to have been made in pursuance of authority given by law. Lessee of Carlisle v. Longworth, 5 Ohio, 369, followed. ’ ’

The court say on page 432 (in this case the tax sale was set up in the answer) :

“No state of facts is averred in the pleading which would authorize the county auditor to sell and convey the premises. It is not alleged that a tax was legally assessed upon the premises, that a delinquency occurred in the payment of taxes, or that notice of the sale was given by advertisement.”

And that is true of the case at bar-, no allegations of that kind appear in the petition and no statement of that kind appears in the statement of facts. The court proceeds:

“In short, neither the authority of the officer, nor the acts done under it, are shown; and courts will not raise a presumption in behalf of an officer intrusted with the power to sell and for the non-payment of taxes, to cover any radical defect in his proceedings.”

Farther along in the opinion on this subject the court cited with approval the ease of Carlisle v. Longworth, 5 Ohio, 368, 369, and say:

“Where it was held that a deed from the county auditor for lands sold for taxes can not be received in evidence without transcripts of the various records of the proceedings upon which the sale was founded.
“The act of 1825, to which, in this case, the court gave a construction, after specifying the preliminary proceedings which should authorize the making of a deed, proceeded, in Section 9, to declare the effect of the deed so made, in the following terms: ‘The deed made by the county auditor as hereinbefore specified, sba.ll be received in all the courts as prima facie evidence of a good and valid title in the purchaser/ etc. In regard to the effect of this section, the court said: ‘ The Legislature does not say that a deed; made by the county auditor shall be received as prima facie evidence of a good and valid title, but, ‘ ‘ the deed, ’ ’ “as hereinbefore specified.” ’ In other words the deed made by the auditor in pursuance of this act. This is the manifest intention. ’ ’

On page 434 in discussing this act, the act as it was when this decision was rendered and as it -is noiv, the court say:

“But, it is probable from an auditor’s deed which we find among the papers of the case (and which bears date May 12, 1851, and purports to be founded on a sale made on account of the taxes of 1841 and 1842), that the defendant’s title was acquired under the act of 1840.”

Our act.as it is now:

“So far as the effect of the auditor’s deed is concerned, the terms of this act are quite similar to those of the act of 1825. The act of 1840, ‘prescribing the duties of county auditors/ (Swan, New Ed., 62), after specifying the preliminary acts to be done, and how, when, and under what circumstances the deed shall be made by the auditor, thus declares the deed.”

The court then quotes the statute and continues:

“Here it is apparent that the deed which is to be ‘received in all cases as prima facie evidence of a good and valid title’ is one which shall vest in the grantee, his or her heirs or assigns, a good and valid title, both in law and equity. It could not have been intended to give such effect to a deed made by a county auditor without authority. The language is, ‘the deed so made by the auditor, shall vest/ etc. The abverb ‘so’ in this connection, can only mean ‘as hereinbefore specified’ which was the exact language of the act of 1825. The construction which was given to this latter act in 1832, was known to the Legislature of 1840, and it is to be presumed that that body, in using terms of precisely the same import, intended them to receive a similar construction. We hold, therefore, that by the act of 1840, the deed of the county auditor neither vests a good and valid title in the grantee, nor is it prima facie evidence of such valid title, unless it be shown to have been made in pursuance of authority given by law. And as the answer in this case does not state facts sufficient to show such authority, the plaintiff’s demurrer must be sustained.”

In 35 Ohio State Reports are three cases bearing upon the question. In Rhodes v. Gunn, 35 Ohio St., 387, the court say in the syllabus, fourth paragraph:

“A tax deed executed under the act of March 23, 1840 (1 Curwen, 630), is not, without other evidence than the deed itself, prima facie evidence of the validity of the tax sale; nor will the destruction of the records in the office of the county auditor relating to such sale warrant the presumption: of its validity. ’ ’

On page 395 of the opinion, the court cite with approval Jones v. Devore, 8 Ohio St., 430, and say:

“That a tax deed, executed under the act in question is not, of itself, prima facie evidence of the validity of the sale, was decided in Jones v. Devore, 8 Ohio St., 430.”

Speaking of the case then under consideration, the court says a little farther along on the same page:

“No evidence was given to show a compliance with these provisions of the statute. The destruction of the records in the office of the county auditor did not destroy the evidence to be found in the office of the auditor of state, and in the newspaper in which the delinquent list and notice were published, if such application was made. Nor was it shown that such evidence was not attainable.”

This was a holding in short that it was necessary, notwithstanding the deed, to show that the preliminary steps had been regular and according to law. We do not think that Revised Statutes, 2880, which was referred to by counsel in their brief, applies to this question. That provides in case the title is defective the purchaser shall not lose what he has1 paid out at the tax sale, but shall have his purchase money back, with interest and penalty. But in this case there is no- evidence as to the amount of the purchase price and, in fact, no relief is asked along that line, no equitable relief is asked, and by the judgment of the court below the -title of the defendants was quieted as against the plaintiff, as we observe from the decree.

G. P. Thompson and F. A. Baldwin, for plaintiff in error.

King & Tracy and H. W. Lloyd, for defendants in error.

We think that under these authorities it is clear that a deed executed under Revised Statutes, 2877, does not make a prima facie case of title; as the Supreme Court say, it is only the deed “so made,” to-wit, the deed made according to the provisions of the preceding section. A showing must be made that the taxes assessed were- properly assessed and properly advertised for sale; that they were sold according to law; that all of the other steps were taken necessary to make a valid sale. No showing of that kind whatever was made in this case, but simply the fact that the deed was- delivered to the plaintiff. The record does not show title to the property in the plaintiff. And for this reason, as well as that the action is barred by the statute of limitations, the judgment of the court of common pleas against the plaintiff and in favor of the defendants was correct, ■and will be affirmed.


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    INJURY RESULTING FROM A DEFECTIVE BOAR.D WALK.
    [Circuit Court of Huron County.]
    Jennie Peat v. City of Norwalk.
    Decided, November 13, 1903.

      Negligence — Charge of Court — Where Testimony Tends to Show Contributory Negligence — Defective Sidewalk.

    1. In an action for damages on account of an injury resulting from negligence, it is not error to charge the jury that to entitle the plaintiff to- recover the jury must find from, a preponderance of the evidence that the plaintiff was without fault, where evidence has been introduced tending to show contributory negligence.
    2. A presumption of negligence does not arise under a petition which alleges that the plaintiff was injured while walking upon a sidewalk which was- out of repair.
    3. The plaintiff, while walking upon a board sidewalk, was tripped and fell and was injured by the flying up of a loose board, upon the opposite end, of which her companion had stepped. Held; That it was not error to charge in such a case, that “if you find from the evidence that the sidewalk at the place where the plaintiff claims to have fallen was out of repair and unsafe and dangerous, and so appeared to persons of ordinary intelligence passing along or over the same, it was the duty of plaintiff to exercise ordinary care to avoid injury, and in that case the burden is upon her to show by a preponderance of the evidence that she exercised such care.”
    Hull, J.; Parker, J., and Haynes, J., concur.
    Error to Court of Common Pleas of Huron County.
   This case comes into tbis court on petition in error to reverse tbe judgment of the court of common pleas. No complete transcript of the evidence is brought into this court, but it asked that the judgment be reversed because of error committed by the court in charge to the jury.

The plaintiff brought her action against the city of Norwalk to recover for personal injuries she sustained, as she claims, on account of a defective sidewalk. She avers in her petition that the sidewalk led out to the cemetery and was out of repair in that the stringers were rotten and the nails thereby had become loosened, and that as she was walking upon it one afternoon with another lady, her companion stepped upon the end of one of the loose planks and it tipped up and the plaintiff was thrown down and fell upon the sidewalk and was injured.

The jury returned a verdict in favor of the city. The bill of exceptions cites that on the trial of the cause, the plaintiff and defendant having each offered evidence to the jury tending to prove all the issues on their respective parts to be maintained, but not sufficient to authorize the court to determine that the evidence raised a presumption of the plaintiff’s contributory negligence, the plaintiff, in writing, asked the court before argument to give to the jury certain instructions, etc., and this is all we have as to' the evidence.

The plaintiff alleges in her petition that she was ignorant of the fact that the sidewalk was out of repair when she walked upon it, that she had no knowledge of its being out of repair.

The defendant averred in its answer, among other things, that the plaintiff was guilty of contributory negligence which caused the injury; and according to the bill of exceptions there was evidence tending to sustain this claim on the part of the city, as the bill recites that each party offered evidence tending to prove all the issues on their respective parts to be maintained, but not sufficient evidence to warrant the court in holding, as a matter of law, that there was a presumption raised that plaintiff was guilty of contributory negligence.

The court charged the jury as follows, which it is claimed was error:

“To entitle the plaintiff to a verdict, you must find from a preponderance of the evidence that the injury received by her ' was caused by some negligence, that is, some lack of ordinary care on the part of some of the city’s officers or agents, whose duty it was to care for the sidewalk in question in this case, and that such lack of ordinary care was the proximate cause of the plaintiff’s injury, and that the plaintiff herself was without fault.”

The case was not argued very fully, but we understand it is claimed that by this instruction the jury were instructed that the burden was on the plaintiff to show by a preponderance of the evidence that she was not negligent. We do not think that this instruction should be so construed.

It starts' out by saying, “To entitle the plaintiff to a verdict, you must find from a preponderance of the evidence that the injury was received on account of some negligence on the part of the city,” etc., and then it closes with the expression, “and that the plaintiff herself was without fault.” That is, you must find “from a preponderance of the evidence that the plaintiff was without fault.”

There had been evidence introduced on both sides on this issue, and it was to be determined by a preponderance of the evidence like any other issue in the ease, and the court said in another part of the charge that the burden was on the city, unless plaintiff came within the exception, to show that plaintiff was guilty of contributory negligence.

The court said to the jury:

“The burden is upon the plaintiff in the first instance to show the defendant’s negligence in the respect and with the result alleged in the petition. To show the plaintiff’s contributory negligence the burden is on the defendant, unless from the evidence of the plaintiff, a presumption of her negligence arises, in which event the burden is on the plaintiff to remove that presumption.”

This is according to the rule laid down by the Supreme Court of this state, and considering that in connection with the instruction complained of, we are of the opinion that there was no error in the charge of the court as far as this point is concerned to the prejudice of the plaintiff below. A charge must be considered as a whole and not in fragments.

This instruction is. also complained of:

‘ ‘ If you find from the evidence that the sidewalk at the place where the plaintiff claims to have fallen was out of repair and unsafe or dangerous and so appeared to persons of ordinary intelligence in passing along or over the same, it was the duty of the plaintiff to exercise ordinary care to avoid injury, and in that case the burden of proof is upon her to show by a preponderance of the evidence that she exercised such care.”

It is complained that this imposed upon the plaintiff the burden of showing that she exercised ordinary care, or the burden of showing that she was not guilty of contributory negligence.

It is claimed by counsel for the defendant that under the petition the presumption arises that she was guilty of contributory negligence because she alleged that she was walking upon this walk and that it was out of repair.

We do not think, however, that the petition, as drawn, raises the presumption that she was guilty of contributory negligence. She was not bound to allege that she was without- fault or negligence, as stated by the Supreme Court (Brumbaugh v. Chapman, 45 Ohio St., 368, 376). We are of the opinion that this instruction was not erroneous.

The plaintiff averred in her peition that .she was walking upon this sidewalk, that it was out of repair, and that a board flew up as the other lady stepped upon it and she was tripped and fell down. According to this allegation she must of course have been walking upon the walk when injured.

The court said to the jury that it was the duty of the plaintiff to exercise ordinary care to avoid injury. There can be no objection taken to that. The court further said:

Sherman Gulp and G. P. & L. W. Wickham, for plaintiff in error.

E. G. MarMn, City Solicitor, and McKnight & Thomas, for defendant in error.

“If you find from the evidence that the sidewalk at the place where the plaintiff claims to have fallen was out of repair and unsafe or dangerous and so appeared to persons of ordinary intelligence passing along or over the same, it was the duty of the plaintiff to exercise ordinary care to avoid injury, and in that case the burden of proof is upon her to show by a preponderance of the evidence that she exercised such care.”

In our judgment this was correct.

We think that if plaintiff went upon a walk that was plainly out of repair and dangerous, and appeared so to persons of ordinary intelligence, which would be presumed to include her, if she went deliberately upon a walk that was so out of repair and dangerous, that then the burden was upon her to show that- she exercised ordinary care not only while she was walking upon such a sidewalk where she 'had put herself, but that she exercised ordinary care in going upon such walk in the first place.

If the circumstances and surroundings were such as mentioned in Schaefler v. Sandusky, 33 Ohio St., 246, so that she might have easily avoided this piece of dangerous walk, it was her duty to go around it and not go upon the walk, and if a person walking upon a street in the daytime, as in this case, deliberately goes upon a piece of walk that is palpably and apparently dangerous and out of repair, the burden is upon him to show that in so doing, he exercised ordinary care.

In Schaefler v. Sandusky, supra, the Supreme Court say:

“A person who voluntarily attempts to pass over a sidewalk of a city, which he knows to be dangerous by reason of ice upon it which he might easily avoid, can not be regarded as exercising ordinary prudence, and, therefore, can not maintain an action against the city to recover for injuries sustained by falling upon the ice, even if the city would otherwise have been liable.”

We think that the charge of the court was as favorable .to the plaintiff as she was entitled to, and finding no error in the record the judgment will be affirmed.


text:
    APPLICATION OF CHARGE TO THE TESTIMONY.
    [Hamilton County Circuit Court.]
    Ada Wuest, a minor, by Charles Wuest, her next friend, v. The Baltimore & Ohio Southwestern Railroad Co. and The Cincinnati Traction Co.
    Decided, February 13, 1905.

      Charge of Court — Variation of Statement of the Testimony — Reversible Error, When — Verdict Assessing Inadequate Damages.

    Tbe fact that juries are alert to catch the least note from the presiding judge as to his view of the dominant questions in the case, renders it of first importance where the judge undertakes to state the testimony in his charge, that he state it correctly; a substantial variation in his statement as to the testimony relating to a controlling issue is ground for reversal.
    Giffen, J.; Jelke, J., and Swing, J., concur.
    It seems too bad to have to reverse a case which has been so carefully and for the most part correctly tried below. The trial judge in overruling the motion for a new trial seems to have been impressed as we are, that the recovery is very small, probably too small, for the injury received.
   It was manifest, from the amount of the verdict, that the jury found that the hernia from which Ada Wuest, the plaintiff, was suffering, was congenital, and not caused by the accident. This is one of the most strenuously fought issues of fact in the case.

In the course of -his charge, on page 371 of the record, the trial judge said:

“There has been testimony as to the nature of the rupture complained of in this particular case; testimony tending to show that it is what the experts call congenital, by which the experts for the defendants, who have all testified that it was in their opinion congenital ntpture, mean that it was a rupture existing at the time of the birth of the child, or that the child was born with a predisposition to just such a rupture in that place, that part of the body. I need not go into the details of the testimony on that subject, but I charge you that if you should find that it was not congenital in that sense that the rupture, an actual rupture, did not exist at the time of the birth, and that there was not a predisposition to such rupture at the birth of the child, and should find from the greater weight of the evidence-that the rupture was caused by that accident, you will award to the plaintiff such damage as would seem to you to be reasonable compensation to her for such an injury.”

Theodore Horstman, for plaintiff in error.

X. W. Goldsmith and Miller Outcalt, contra.

It is not only proper, but it is the duty of the trial judge to apply his charge to the testimony of the witnesses. This is a _delicate task and one hard to perform without giving undue prominence to part of the testimony, and without indicating to the jury the view of the court on that particular issue of fact.

We know that juries are alert to catch the least note from the presiding judge as to his view on important issues; hence the importance can not be exaggerated of a correct statement of the testimony where the court undertakes to state the same in the course of its charge.

The statement above referred to, that all the experts had testified that it was in their opinion congenial rupture, slightly overstates the testimony, as disclosed by the record in this regard.

Dr. Bonnifield, one of the experts, expressly testified that he could not tell, and yet, the trend of his testimony might well lead one to infer that the balance of his judgment was that way.

It is unfortunate that this slight inaccuracy occurred on a matter so vital in the trial of the case, but we think it constituted sufficient prejudicial error to require a reversal. We are reassured in our conclusion by the general impression that the recovery was inadequate and trust that a reasonable addition to the amount named in the verdict will end this litigation.