text:
    (First Circuit — Butler Co., O., Circuit Court,
    Oct. Term, 1898.)
    Before Smith and Swing, JJ.
    THE BECKETT PAPER CO. v. THE HAMILTON & ROSSVILLE HYDRAULIC CO. THE NILES TOOL WORKS v. THE HAMILTON & ROSSVILLE HYDRAULIC CO.

      Contract for use of water power of land owner with Hydraulic Co. — Failure to supply powei — Remedy provided in contract to be followed—

    (1.) Where it appears that about fifty years ago, the defendant, The Hydraulic Company, executed to Riley and others, then the owners of certain real estate situate on the hydraulic race of the defendant company, certain indentures or contracts in writing, signed and executed by all the parties thereto as re- ' ' quired by law in the case of deeds for real estate, and whereby said Hydraulic Company contracted to furnish to said lessees, their heirs and assigns forever, a stipulated quantity of water power, to be furnished- on said real estate then owned by said lessees, at a certain stipulated rental, of so much per year, payable one half on January 1, and the other half on July 1, of each year, and there was no express stipulation therein that the heirs or assignees of such original lessees were to be liable for said rental, but the payment thereof was secured by said indenture by which said original lessees conveyed said real estate to the Hydraulic Company by way' of mortgage, the conveyance to be void on the punctual payment of said rental, and which conveyance was duly recorded in the mortgage records of said county of Butler; and of which lands and of all the rights of the original lessees, the plaintiff is the owner, subject to said mortgage, by assignment from the original lessees. And where it further .-appears, that for several years past there has been a substantial failure on the part of the defendant company to comply ■with the provisions of said leases or indentures in furnishing the stipulated amount of water power to the plaintiff company, the assignee of the original lessees, and in the manner ■provided for, to its substantial injury, but that said leases or indentures contained explicit provisions as to the manner in ■which the original lessees, their heirs or assigns shall be compensated for a failure on the part of the Hydraulic Company to furnish the stipulated power, in the manner provided for for more than ten days in any one year, vis.: First, by a deduction to be made from the rent for the time over and above ten days in any year during which the company shall not supply the proper quantity of water according to the contract, and second, in case the Hydraulic Company shall fail to use reasonable diligence to keep their worKS in order, and thereby the proper quantity of water is not furnished, the said company is to be liable for the damage, over and above the rents to be deducted, as said lessees, their heirs and assigns shall sustain by reason of such negligence and want of reasonable diligence. And it further appearing that settlements of such damages have been made by the parties up to January 1, 1896, or July 1, 1896.
    Held: First. That on this state of fact, the plaintiff having notified the defendant company that it elected to put an end to said contract as of January 1, 1896, and that after that date it would no longer receive or pay for such water power, and that it requested that said contract be cancelled and held for naught, which the said defeudant refused to do, and asserted that said contract was perpetual; and thereupon plaintiff filed its petition praying the court to decree the contract at an end,-it is not entitled to the ruling sought, and the petition should be dismissed.
    (2.) The contract under which the plaintiff claims, having pointed out the manner in which the claims of the plaintiff for damages for a failure to comply with the provisions of the contract as to furnishing water power was tobe adjusted and those claims having been adjusted as therein provided, plaintiff can not in addition now call upon a court of equity to cancel such contract on account of such failure.
    (3) . As between the parties to this suit such indentures or leases, are not leases at will,and are not terminable at the election of the assignee of the original leases.
    (4) . Whether the plaintiff company as the assignee of the origin inal lessee is personally .liable for the yearly rental is not decided. The reat estate so mortgaged by the original lessors is liable for tne rent that may become due under the terms of the contract.
    (5) . Under the charter of the Hydraulic Company as amended, it had the authority to make perpetual leases of this character.
    Appeal from Court of Common Pleas of Butler county.
   Smith, J.

These two cases involve substantially the same question, and were beard together. The petition in the first of the two cases avers that it is a corporation, and that the defendant is also a corporation, organized under the act of the general assembly passed March 25, 1841,and claims to possess and still exercises the privileges, franchises and powers conferred upon it by said act and an act amendatory thereto, passed March 12, 1845. That within a few years after its organization the said defendant constructed a hydraulic system consisting of the dam across the Miami river, reservoirs, canals, races and water ways,and has been supplying water power to various persons and corporations.

For a first cause of action the Beckett Paper Co. ayers in substance,that in 1848,one Calvin Biley entered into a certain indenture or contract in writing with the defendant company whereby said defendant assuming the authority in law to do so, leased and let to said Biley, his heirs and assigns, forever water for twelve mill stone powers, being a flow of 260-884 cubic feet of water per minute to each mill stone power, amounting for the twelve mill stone powers, to 3184.6 cubic feet of water per minute over a fall of thirteen feet to be used on lots Nos. 22 and 27 in the hydraulic addition to the town of Hamilton, for which said Biley for himself consented and agreed to pay to said defendant or its assigns the yearly rent of $1560, payable in semi-annual payments on the first day of January and July in each year.

That said indenture or written contract provided that it was made and executed upon certain conditions and covenants therein specified to be kept, observed and full filed by said parties as follows:

“First. Said defendant bound and obligated itself forever to use proper care and diligence to keep the main canals, reservoirs and embankments and the dam over the Miami river at the head of the main canal, and necessary water way and gates and other works necessary for the protection and security of the main canals, embankments and reservoirs in good order and repair.
“Second. That said Riley, his heirs and assigns, were to construct and forever keep in repair the aqueduct and forebay conveying the water from the head race of the hydraulic company to the wheels and works of Riley, the tail race, the bridge over said aqueduct and a good substantial gate at the junction of the forebay and head race.
“Third. That said Riley, his heirs and assigns,' was not to use more water than granted in said indenture, or permit water to be wasted for want of necessary repairs or by deficiency of forebay, gates, wheels or other works or machinery, or by suffering the gates to remain open when not using the water, or otherwise, and was not to obstruct the free flowing of water through the canals or reservoirs, the tumbies or races, or allow any offal or other material to pass or be thrown from their mills or works into any of the races of the company,or in any manner to interfere with or injure or destroy any of the gates, works or fixtures of the company.”

That it was also provided in said indenture or written contract that the said defendant should have a lien on said real estate to secure to it the payment of said annual rental for water,and to secure the performance on the part of said Riley, his heirs, executors, administrators or assigns,of the covenants and stipulations specified on their part to be fulfilled and kept. That this indenture was on March 14, 1860, duly recorded in the Mortgage Records of Butler county, and appears of record as a lien on said real estate and a cloud upon the title thereof.

That this plaintiff is now and has been ever since then, the owner and seized in fee simple of said real estate as the grantee of said Riley, and ever since and until January 1, 1896, the plaintiff has paid to said defendant and settled with it for said annual rental of $1660.

But that the plaintiff never became a party to said indenture, and is not bound thereby.

That afterwards, on November 8, 1848, it was mutually agreed by and between said Hydraulic Co. and said Riley that the flow of water should be 276 928 cubic feet of water per minute for each mill stone power amounting in all to 3323 cubic feet for the twelve mill stone powers mentioned in said indenture,instead of the number of cubic feet therein stated, and that the same might be used on any lot adjoining said lots 22 and 27, and that any lot on which the water should be so used should be subject to the same lien provided in said lease on said lots 22 and 27, and thereupon copies of said indenture and subsequent agreement are atlached to the petition. Then follows a second cause of action setting up a like contract made by the ' Hydraulic Co. with William Beckett, F. I). Rigdon and Adam Laurie, October 25, 1859, for leasing of water for five mill stone powers at a rental of $1000 per year, payable semi-annually oh the 1st day of January and July of each year.

The terms of this indenture are substanifally similar to the others, and by it the lessee also conveys said lots 22 and 27 to the company with the condition of defeasance as appears in the other. It may be said here that both of these indentures were duly executed by the parties thereto as required by law of deeds conveying real estate.

Then follows other averments relating to both causes of action to-wit:

“That under the original act incorporating the defendant company it was authorized and created for a limited number of years, to-wit, thirty years, and authorized to make Leases or contracts with other -parties for supplying them with water for a limited time, and that power to exist beyond said thirty years and to make leases or contracts for water power except for limited times was not conferred on said corporation by said amendment of March 12, 1845, or by any act of the general assembly,and that said indenture contains no covenant or agreement whatever on part of assigns of Beckett and others to receive and pay for ■ said water power, and that the same only amounts to a lease or tenancy from year to year. It also proceeds to allege that the defendant company has not fulfilled the covenants and obligations on its part in said indenture, but has broken the same in a good many ways, stating them — among others that it has not used proper care and diligence to keep the main canals, reservoirs, embankments and dam across the Miami river and the necessary water ways, gates and other works in good order and repair. That for many years it has misappropriated the revenues and income and squandered them to the neglect of its duties toward plaintiff and other grantees of water power, and has carslessly and negligently permitted and suffered the dam across the Miami river necessary for supplying water to fall into disrepair and become broken down and full of holes and leaks,so that it no longer supplies the water necessary to maintain said system of hydraulic power or afford the plaintiff the power contracted for in said lease. That about 1887 the defendant for pay caused to be driven a large number of piles in said canals, races and water ways and caused' other obstructions to be placed therein so as greatly to impede the flow of the water and' deprive plaintiff of water power contracted for. That it did not have a fall of thirteen feet as provided for. That by reason of said carelessness, negligence and failure the hydraulic system has fallen into disrepair, and plaintiff has been deprived of said power, and has been compelled at great expense to supply the power which the defendant company had contracted to furnish, and by reason thereof the payment by plaintiff of the rental has for many years been burdensome, inequitable and unjust and without any return to it or without any-consideration therefor on the part of the defendant, and that said indenture is a cloud on the plaintiff’s title to said real estate.
“That by reason of the premises the plaintiff has a right to terminate said indenture or lease, and that it desires and has determined and decided so to do and that on January, 1896, the plaintiff duly notified the defendant that it elected and decided to put an end to said tenancy and that it would no longer receive or pay for any of said water power, and notified and requested defendant to cease to supply any water fbnpower purposes to this plaintiff and to make demands upon it for said annual rental, and has notified and requested the defendant to cancel said indenture or written contract, which it refused to do,and wrongfully asserts that it has a right to continue perpetually said contract and exact and extort the payment of said annual rental.
“Whereupon it prays that the court will order and decree the relation of lessor and lessee between the defendant and the plaintiff to be at an end, and by decree forever bar said defendant from exacting of the plaintiff said annual rental, and will order the cancellation of said contracts, and grant such other relief as the plaintiff may be entitled to.”

By an amendment to the petition the plaintiff further avers that on the real estate described in the petition is a large and valuable paper mill, and that the plaintiff has expended $100,000. or $150,000, in the construction and equipment thereof relying upon the water power which defendant has agreed, and by said indentuje has contracted to furnish. That in the operation of said mills and in the manufacture of paper for which purpose the mills were erected, there was and is quite a high grade of power required, constant, continuous and reliable at all times, so that the operation of manufacturing paper can be carried on with regularity without interruption and with expedition,

The plaintiff and its grantors have been deprived of said water power by said negligence and carelessness of defendant, and could not rely upon the same, and have been compelled to make other arrangements and at great expense to them, to put in steam boilers to generate power and operate said mills and carry on said manufacture with steam power, and in that way to supply the power which defendant had bound itself to supply.

It again alleges that no time was fixed by said contract, and therefore that it is a lessee or tenant at will or from year to year, and therefore is not bound to receive or pay for said water longer than it desires to and does receive it.

“That when said lease was executed it was done in view of conditions then prevailing; that there was then abundance of water, and defendant then had large reservoirs and large quantities of water, and was able to furnish sufficient water power for operating the mills and factories supplied by it. But that for a number of years past the water in the river and under defendant’s control has almost entirely failed,and defendant has no longer large reservoirs and large quantities of water, and is unable to furnish sufficient water and power for the purposes aforesaid, and that it was the intention of the parties and of the true construction of said indenture and written contract, that the same are leases from year to year and should not continue in force perpetually, but only for a reasonable time and during the existence of conditions prevailing at the time, and only while the said hydraulic system waB adapted to answer the demands of manufacturing purposes.
“That since said defendant constructed its system it has been paid by its lessees and patrons large sums of money so that it has been paid over and over again a fair and reasonable return upon its investment, and in addition thereto it has been paid over and over again the cost of its investment and the value of its property, and that it is inequitable and unjust for defendant longer to extort said rental,
“That there have been such changes in the business of manufacturing and in the machinery and mechanism necessary for carrying-on that business, and in the demand for modern improvements and for a high grade of constant, well regulated, reliable and uninterrupted power for the purpose of operating paper mills and manufacturing paper; that defendant’s hydraulic system has become obsolete and no longer supplies such constant, regular, reliable and efficient power, but is unreliable, detrimental and useless for such purpose, That consequently plaintiff cannot compete with others by the use of said system, and have been compelled to adopt steam boilers, engines and apparatus,
“That it was also the intention of the parties to said contract, and it is the true construction, thereof, that the same are leases from year to year, not perpetual, but only for a rasonable time and until in the march of events there was a necessity for different power. That said annual rental is without consideration, and without advantage or value to the plaintiff, and if the same is continued as a fixed charge upon said real estate,it will be totally destructive of any and all value of said property,and be a confiscation of $100,000. or $150,000, in said paper mill property.”

The defendant by its answer admits its corporate capacity as alleged, and the construction of its hydraulic system, and that it has since then been engaged in furnishing water power as alleged. It further admits the making of the contract as therein stated, and that plaintiff is the owner of said lots 22 and 27, together with said lease and modification by written conveyance from said Riley. That Riley and his subsequent grantees, including plaintiff, have regularly paid the water rent as stipulated in the leases and in pursuance thereof, from the date of the original lease to January 5, 1896, and since commencement of this suit, have paid said water-rent as therein provided to July 1, 1896, and has fully settled with defendant said annual rental after proper deductions in pursuance of the leases of said term for loss of water.

“Defendant denies that plaintiff never became a party to said indenture or the modification thereof, but avers that said Riley and all of its intermediate grantees have while owning the property been parties to said leases and used water under the same, and were bound by the stipulations therein contained, and that said lots 22 and 27 were bound for the payment of said rent, and that during all the time said leases and modifications were part and parcel of said real estate and appurtenant thereto, and passed to each on© of the grantees, including the plaintiff, and each was bound by the terms of said water leases and accepted the deed with full knowledge of the same. That during all the time said water power has been used in propelling machinery on lots 22 and 27, said water rent was a lien thereon, and tüat defendant has always to the present time fully complied with all the stipulations above of said contract to be performed by it, and has made Bemi-annual settlements with said Riley and with said several grantees from time to time, including the plaintiff,up to July 1, 1896,and that said Riley and his -said grantees, including the plaintiff, have during all that period fully acquiesced in the terms of said lease and modifications, and with the performance of the terms of said contract by defendant and has approved and ratified the same, and defendant says that it is still ready, willing and anxious to further comply with the terms of said lease and its ratification while the lease exists. ”

The answer then makes the same allegations and denials as to the second cause of action as to the lease to Beckett, Higdon é¿ Laurie, as applicable to both causes of action. The answer claims that by the amendatory act of March 12th, 1845, the legislature repealed so much of the former act as limited the duration of the company, and conferred upon it full power to make permanent leases of water, and such leases as were made to plaintiff's grantors. It denies the allegation that the assigns of the original lessees were not by said agreement bound to receive, and pay for the water power, and that they were only lessees from year to year. It avers that said original lessees and all of their assigns and said real estate, fixtures and appurtances were bound by the leases of said lessees and to pay the rent therefor so long as the defendant complied substantially with the terms of said leases, which it avers it has done.

It denies all the allegations as to carelessness and negligence, and avers that it has fully complied with its obligation, It admits the notice to the company that plaintiff has-elected to terminate the contracts, and that it refuses to comply with plaintiff’s request. Defendant further avers that plaintiff and each of its grantees have at all times acquiesced in the performance by defendants of the terms of said leases, and have approved and ratified the action of the defendant and the terms and conditions and binding force of the said leases. That it has expended many hundred thousand dollars in making and keeping up said hydraulic system, to the full knowledge of plaintiff and its grantors, .and if the relief asked for is granted, that it will amount to the absolute destruction of the system,which is of the value of more than $150,000.

The new matter in the answer is denied by the reply.

On the issues thus presented we heard a great deal of testimony, and we state the conclusions at which we have arrived as briefly as possible.

First. We are of the opinion that the evidence clearly establishes the fact that for quite a number of years immediately prior to 1896 there was a failure on part of the defendant, the Hydraulic Company, to furnish to the plaintiff the stipulated amount of water power in the manner pointed out in the several contracts, and this to the substantial injury of the plaintiff, That thqre has been a failure on part of the defendant to keep its canals and other works in good order and repair, and particularly that the large reservoir, used originally for the storage of water, has been allowed to fill up with earth, mud, etc. so that the hydraulic system is not so good in this respect as it was when the contract was entered into. But it seems to us that the great objection to the contract of the defendant is that it has leased and agreed to furnish a much greater amount of water power than it is able to furnish, and that many of the contracts made by it to furnish power were entered into long after those made with the plaintiff, and the consequence has been that in attempting to supply all the water power contracted for, they have failed to comply with the agreement under which the plaintiff claims. The consequence has been, that for a considerable part of the time, the power stipulated for has not been furnished as it should have been; that the supply varied greatly from time to time, even on the same day, that it was frequently the case that in the early morning when a head of water had accumulated during the night (when the various mills were not running), in the dams and storage reservoirs, the mills of the plaintiff would start with the stipulated power agreed to be furnished, but as this head of water decreased by the use of it by the various mills using the same, less and less power would be furnished to plaintiff, and much less than the quantity agreed to be furnished under the leases. Necessarily this was very much to the injury of the plaintiff. Its plant was a very large one requiring for its successful operation more power than the defendant had bound itself to furnish to it, and therefore they had been compelled to supplement the water power with steam power, and the effort was made to use them together, but owing to the fact that for the reasons indicated, the quantity of water power furnished by the defendant company was so irregular and for so much of the time was less than the amount stipulated to be furnished, the steam and water power did not work well together, and according to the weight of the evidence, very considerable injury to the interests of the plaintiff continually resulted.

But it is clear under those contracts that it was the bounden duty of the defendant to the plaintiff to furnish the stipulated water power regularly and constantly, and not in the varying and irregular manner described, and we have no question but that it is shown by the evidence that there has been for years past a substantial breach of the contract in the particulars mentioned, on the part of the defendant company, to the substantial prejudice of the plaintiff.

The question then arises (and it is one not free from doubt): What is the result of this — does it give to the plaintiff the right to repudiate the contract entirely, and call upon a court of equity to cancel and annul the contract under which the parties have so long operated, and wholly release them from their obligations under the same? Properly to determine this question it is necessary that we should examine the provisions of the contracts themselves and some provisions therein which were not mentioned in the pleadings of the parties, though the contracts themselves were referred to, and attached to the petition, and the originals offered in evidence.

As has been stated, those indentures, contracts, or leaaes are in substance the same, and I quote some portions from one of them in substance:

In subdivision one of the contract specifying and setting out what the Hydraulic Company shall do, it is provided that

“said company and their heirs and assigns shall forever keep the main canal, reservoirs and embankments and the dam over the Miami river at the head of the main canal, and the necessary water ways and gates, and such other works as are necessary for the protection and security of the main canal, embankments and reservoirs, in good order and repair. ”
Second. “If the said company shall not keep the main canal, embankments, gates and other works necessary for their protection and security in good repair, and the proper quantity of water shall not be furnished to said Calvin Eiley, his heirs or assigns,as hereinbefore provided, for more than ten days in any one year, by which he shall suffer loss and damage, a deduction shall be made from the rent to be paid by him as aforesaid for the time over and above ten days during which said company shall not supply the proper quantity of water according to their contract as aforesaid, but no deduction shall be made if the? time during which the water shall not be supplied as aforesaid shall net exceed ten days in any one year — Said company expressly reserving ten days of each and every year for the purpose of drawing off the wster should they deem it necessary, and making additions and repairs, for which time no deduction is to be made from the rents as aforesaid; but if the said company shall not use reasonable diligence to keep their main canal, embankments, gates and other works necessary for their protection and security in good repair, so that the proper quantity of water shall not be supplied to Calvin Eiley, his heirs and assigns, as hereinbefore provided, the said company shall be liable for such damage over and above the rents to be deducted, as said Eiley his heirs or assigns shall sustain by reason of such negligence and want of reasonable diligence.”

Does not this provision of the contract between the parties, clearly and explicitly point out the remedy given to Riley,his heirs and assigns, (and therefore to the plaintiff), in case of a breach of the contract on the part of the defendant company on failure to furnish the water power which it has stipulated to furnish?

It seems to us that such is the case, viz: That defendant has no right to collect the stipulated rent for the time over ten days in any one year that the hydraulic company has failed to supply the water, as contracted for, and that in addition to this, that if such failure is occasioned by the want of reasonable diligence in the maintenance of the system (which is the allegation made against the defendant here),then it is to be liable for all damage occurring to said Riley, his heirs or assigns, by reason thereof.

How, then,can the plaintiff without a resort to the remedy expressly given to them by the contract itself, ignore this right and resort to a court of equity and call upon it to declare the contract or lease forfeited, when a legal right is given to it by the contract itself by proper proceedings to obtain equitable redress for this breach of the contract by the defendant company ? And especially is this so in view of the fact, which is abundantly established by the evidence, that various claims on the part of said lessees against the Hydraulic Company for failure to furnish them power in accordance with said contracts have been presented and allowed, and that all of said claims up to January 1, 1896, have been fully compromised and adjusted by the parties themselves.

We are of the opinion that this cannot be done, and for the additional reason, that, as held by this court in the case of Adams v. Parnell, 11 C. C., 567, a court of equity will not enforce forfeitures unless under very peculiar circumstances.

Second. We are further of the opinion that the claim of the plaintiff that the leases in question are void and not binding upon them for the reason that the charter of the hydraulic company did not give to such company the right to make permanent leases of this character, is not well founded. It is true, that by the original charter, passed March 25th, 1841, the life of the corporation was limited to thirty years, and the company had the right to lease water power “for a limited time”, probably not longer than the life of the corporation. But by the amendment of March 12th, 1845, the provisions limiting the duration of the company to thirty years and restraining the company from making permanent leases, were repealed. And we think that thereafter the company had the right to make leases like those in controversy.

Third. A considerable portion of the argument in this case has been directed to the question whether on the provisions of these indentures, contracts or leases, there is any liability whatever on the part of the plaintiff as assignee of the original contracts made with Riley, and with Becket, Rigdon & Laurie for the payment of the rent stipulated to be paid by those to whom the leases were originally made. Such liability on the part of the assignees being denied by the counsel for plaintiff, the claim being that nowhere in these contracts is there any stipulation that in case of the assignment of a lease the assignee is to be bound to pay the same, but only the original lessee, and such does seem to be the language of the agreement. For while they expressly stipulate that the water power agreed upon shall be furnished to said original lessees, their heirs and assigns, forever, said original lessee simply stipulates and agrees to pay to the Hydraulic Company or its assigns, the yearly rent therefor in the manner provided for, and we are of the opinion that by the terms of this contract, though no statement is made therein as to how long these payments were to be made, that it was to be for so long as the water was furnished and the. contract complied with, which the company obligates itself to do forever. There being then no express stipulation that the assignee of the leasejshould pay such rent, is there any personal liability on him to do so? So long as an assignee of the lease continues in the possession of the demised property, under the decision in the case of Sutliff v. Atwood, 15 Ohio St., 186,there would seem to be no question as to his personal liability for the rent accruing while thus in his possession and occupancy, and without any personal agreement on his part to pay the same, and the assignor is also secondarily liable therefor, and the question might arise in this case whether the plaintiffs were not still in possession of the property so as to render them personally liable therefor, for they are in possession of and claim the title to the real estate on which the water power is to be used. And it is also a question in view of the conveyance of this land by the original lessees to the hydraulic company to secure the payment of the rent, whether this does not make the agreement to pay the rent one which runs with the land,

But in view of the provision to which we have referred, viz: that in this indenture, and by express terms there is a conveyance by the original lessees to the hydraulic company of the fee simple of the land now owned by plaintiffs and. on which the water power is to be used, to secure the payment of the rent which may become due,it seems to us that the question referred to is not of any great importance in the determination of this cause. Riley as the original lessee in the one-case, and Beckett, Rigdon & Laurie in the other, were in our judgment liable for the payment of this water rent, even after the assignment by them of their leases to the plaintiff. They gave a mortgage on the land to secure this rent — the land was conveyed to the plaintiff subject to said lease, and we see no way in which the lien can- be discharged except by payment, so long as the contract remains in force.

We would not be understood as holding that there might not be such a violation and breach of this contract on the pari of the hydraulic company as would justify a court in holding that the contract should be cancelled and held for naught — -we think this might be done. All that we now decide on this point is that no facts are shown which would justify such action now. That by the contract itself a remedy is given to the plaintiff for the breach thereof on the part of the hydraulic company, and until the plaintiffs have availed themselves of the remedy thus provided and established their rights at law, .and it appears conclusively that the defendant cannot or will not comply with the provisions of the contract, the relief now sought must be denied. The petitions therefore will be dismissed, but under all the circumstances we think each of the parties must pay his own costs.

Morey, Andrews & Morey, Attorneys for Plaintiffs.

Millikin, Shotts & Millikin, and Mr. Petticord, Attorney for Hydraulic Co.


source: Caselaw Access Project

author: Voorhees, J.

license: Public Domain

text:
    First Circuit — Hamilton Co., O., Circuit Court
    January Term, 1899.
    Before Adams, Douglass and Voorhees, JJ. (of the Fifth Circuit, sitting in the E irst Circuit.)
    THE MILL CREEK VALLEY STREET RAILWAY COMPANY, A CORPORATION v. THE VILLAGE OF CARTHAGE, ET AL.

      Contract ultra vires — Power of legislature to validate—
    (1) . The legislature may by a subsequent law validate acts and contracts made ultra vires by municipal corporations, if the defect sought to be removed or made harmless be something which the legislature by a prior law might have authorized or made immaterial.

      Later judgment on same subject, when invalidates former contrary judgment—
    (2) . Where a party has obtained a judgment or decree in his favor, and afterwards becomes a party to another action in which such prior judgment or decree was or could have been plead as a bar to the second action, but either fails to make the plea, or making it, the plea was overruled for any reason, and a contrary judgment or decree is entered in the second case, the latter judgment will govern, and the former judgment or decree will be in effect annulbd.

      Sale of Str. Railroad — Franchise—Former judgment superseded by later—
    (3). A purchaser of a line of street railway under a decree of a United States court in foreclosure, holding that a previous decision of the state supreme court is not conclusive as to the corporate capacity of the defendant mortgagor to acquire the line of railway, has a right to look to such decree as a source of title, and will take a good title to the right of way and franchise of the mortgagor therein held to be valid.

      Subrogation of purchaser to rights of mortgagor Co.—

    (á). The purchaser at a sale made for the enforcement of a mork gage or other lien, is subrogated to the rights of the original lien holder even though the proceedings were invalid and his purchase avoided.

      Street Railroad — Power of village to declare a nuisance—
    (5) . A village or municipality, which was not a party to the suit in the United States court, can abate said railway as a nuisance in its streets, if at all, only by due process of law; and threats of tearing up the tracks by the municipality gives the railway company a right of action against the village by injunction.

      Action of council granting franchise to Str. R’y — When can not be annulled later—
    (6) . Where a village, through its council, invited and induced a street railway company to enter its corporate limits, and occupy its streets with tracks for the purpose of operating a street railway, and the company thereupon built and equipped a railway in its streets, and made large expenditure in so doing, the village cannot thereafter repudiate the action of its council on the ground that their proceedings were irregular.
    Appeal from the Court of Common Pleas of Hamilton county.
   Voorhees, J.

It will be sufficient for the exposition of the law applicable to this case, to state the following facts:

The petition avers the corporate capacity of the plaintiff, its ownership and possession of the electric street railway, which passed through the defendant village. It recites the source of title to -the railway property now vested in the plaintiff company; that the road was constructed, maintained and operated at great cost and expense upon the faith of .certain acts of the defendant village, through its council and officers, who invited and induced the plaintiff’s predecessor in title_and occupancy, to construct in its streets said railroad, and who consented and acquiesced in the construction and operation of said railway at the time the same was built, and up to about July 1st, 1898.

About July 1st, 1898, the council of said village of Carthage, without authority of law, and without the consent of plaintiff company, passed an ordinance tending to impair the rights of the plain tiff, and threatening to destroy the railway tracks and property of the plaintiff within said village of Carthage.

Plaintiff prays for an injunction to prevent the commission of such threatened acts cf violence.

By amendment to the petition facts are set up of proceedings leading up to the sale of the railway property, under a decree in the federal court, under which proceedings it is alleged the property was sold; and it was alleged that by an arrangement, the purchaser, one Kilgour, was to lease a portion and sell the rest of the railway to plaintiff. The title of plaintiff as obtained through and under said decree in the federal court was set up in the amendment to the petition.

By its answer, the defendant village raised the question of corporate capacity in the defendant village to grant an extension of a railway, constructed by a corporation, organized under the act of May 1st, 1852, and of the capacity of the Inclined Plane Company, the former owner of the railway, to accept such a grant, or to make an extension of its lines.

Plaintiff by reply takes issue with the answer as to want of corporate capacity in said village, or in the Inclined Railway Company, to do the acts claimed by the plaintiff company to have been done by them or by it, in extending its tracks as a street railway, or in accepting the same.

The issue thus presented by the üleadings is principally •one of corporate capacity, and raises a question of law rather .than of fact.

The material facts bearing upon the issue so presented may be summarized, as follows:

The Inclined Railway Company was incorporated April 31st, 1871, under the act of May 1st, 1852, for the purpose of constructing a railroad, the termini of which were to be in the city of Cincinnati and the village of Avondale, Hamilton county. On February 23rd, 1889, the terminus of the road was extended from its northern terminus at the Zoological Garden, in Avandale, to the village of Glendale, the company constructing an incline from Main street to Locust street on the top of the hill. This was done under an ordinance of the city of Cincinnati, passed June IGtb, 1871.

The city of Cincinnati, by ordinance passed December, 1871, granted to the railway company the right to construct a railway from Main to Liberty streeet, and on Liberty to Walnut street; thence on other designated streets to the foot of the incline. October 2th, 1875, said city granted the company the right for thirty years to occupy with double tracks Locust street, commencing at the top of the incline; thence in a described route to the Zoological Garden.

On March 30th, 1877, the legislature of Ohio passed an act ratifying and validating the grants embraced within the ordinances above referred to. (O. L., vol. 74, page 66.)

In 1885, permission was granted to the Inclined Plane Company by the city of Cincinnati, to use electricity as a motive power in the operation of its road. The county commissioners of Hamilton county, having control over the Carthage turnpike, extending from Ludlow avenue to its northern terminus in the village of Carthage, granted to the Inclined Plane Company the right to construct and maintain an exterision of its railway in said pike, in consideration of the company paying into the county treasury on January 1st, 1891, $500.00, and other designated amounts at fixed periods so long as the pike remained under the control of the commissioners.

The village of Carthage passed a resolution requesting the commissioners to grant the right of way to said Cincinnati Inclined Plane Railway Company to construct an electric street railway over said Carthage pike.

Without going into unnecessary detail as to the various intermediate acts and proceedings touching the title of plaintiff company, it may be further stated that: On August 7th, 1894, the village council of Carthage regularly passed an ordinance providing for the extension of the Cincinnati Inclined Plane Railway Company from the northern terminus of the Carthage pike over Main street and Lockland avenue to the north corporation line of the village of Carthage, By this ordinance the right to construct the extension to the northern line of the village was provided for.

For the purposes of this opinion, it will not be necessary to refer to the ordinance or its provisions further than to say, the company accepted this grant, and in 1894, constructed the extension to the northern corporation line of said village, and thence northwardly under grants from other municipal authorities to Lockland and Reading; and it paid annually, until the commencement of this action, to the village of Carthage, the sum of $50.00, as prescribed in said ordinance.

December 12th, 1890, the city of Cincinnati commenced an action against the Cincinnati Inclined Plane Railway Company, in the superior court of that city, praying, among other things, that the Inclined Plane Railway Company might be enjoined from maintaining more than one track over Auburn avenue, between Mason and Vine streets, and be enjoined from maintaining a track on Main street over what is known as route eight, to Fifth street as described therein.

A decree was entered at the general term of the superior court, finding that said railway company was unlawfully maintaining and operating a street railway by double track, on certain designated streets in said city mentioned in said decree, and perpetually enjoined it. from maintaining any of its tracks in Main street, and from maintaining and opearting more than one street railway track on Auburn avenue between Mason and Vine streets.

March 6th, 1895, the Louisville Trust Company (a foreign corporation), commenced an action against the city of Cincinnati in the circuit court of the United States, alleging the execution of a mortgage to it upon this property of the Inclined Plane Railway Company on January 1st, 1889, to secure $500,000 of the bonds of said company, setting forth in its petition the grants by the city to said railway compan) of privileges, etc., and of the construction by the company of its road, and that the city threatened to remove the tracks of the railway company from the streets, and praying for an injunction to restrain the city from such threatened action.

The city answered, and among other things, set forth all the ordinances that had been passed; and also plead the action of the city in the superior court, and the judgment therein, and the affirmance of the same by the supreme court of Ohio.

Such proceedings were had in said action in the United States circuit court of appeals, that it was decreed, that said ordinances were validated by the act of the legislature of Ohio, of March 30th, 1877, and that the city should be enjoined from interfering with the company in the maintenance and operation of so much of its road, as had been construed under the ordinances of December 1st, 1871, and October 27th, 1875. The decision in this action was affirmed by the supreme court of the United States, and remains in full force and effect.

Such proceedings were fuitherhadin the trust company’s said action, that a decree was entered for the sale of said railway in two divisions: One part being the portion lying south of the Zoological Garden, and the other being that portion lying north of the last named point, and extending to the villages of Lockland and Reading. Sale was bad, and through its agent, one Charles H. Kilgour, the plaintiff company became the purchaser of that part of the road extending from the Zoological Garden northwardly, for $187,500. The sale was confirmed and proper deeds were executed to said Kilgour, who subsequently conveyed the same to plaintiff company, and it, on June 4th, 1898, entered into possession and commenced the operation of said railway. August 4th, 1898, it commenced this action.

The cause comes into this court on appeal from the common pleas. It has been ably argued on both sides by counsel by briefs as well as by oral arguments. In the short time this court has had to consider the questions involved, and to assign reasons for its conclusions, it cannot be expected that we will go into much detail in stating our conclusions. Some of our conclusions of law will need be dogmatically stated, for want of time to give reasons therefor,

The first question to wh'ich attention will be directed is: What effect had the act of the legislature of Ohio, of March 30th, 1877, toward validating the ordinances of the city of Cincinnati, theretofore passed on June 16th, 1871, December 1st, 1871, and October 27th, 1875, granting to the Cincinnati Inclined Plane Railway Company (which company was organized under the act of May 1st, 1852),the right to construct a railway in certain designated streets in said city, and to occupy for a period of thirty years with double tracks certain streets, and with single track other named streets in said city. This act of the legislature of March 30th, 1877, being an enabling and curative act,is to be construed as such. Its object and purpose was to give power to corporations theretofore as well as those thereafter to be organized under the act of 1852, the right to hold, lease or purchase, and maintain and operate such portion of any street railroad leading to or connected with the in-dined plane as may be necessary for the convenient dispatch of its business, upon the same terms and conditions ,on which it holds, maintains, and operates its incline plane; provided, that no other motive power than animals shall be used on the public highways occupied by such street railway company without the consent of the board of public works in any city having such a board, and the common council or the public authority or company having charge or owning any other highway in which such street railroad may be laid; and, provided, that no inclined plane railway or railroad company shall construct any track or tracks in any street or highway without first obtaining the written consent of a majority of the property holders on the line of such proposed track or tracks, represented by the feet front of lots abutting on the street or highway along which such track or tracks are proposed to be constructed.

No such purchase or lease shall be made without the consent of the holders of the stock in the company purchasing or leasing, and in the company leasing or selling such street railroad or the owners thereof.

It is contended that the legislature could not validate the grants that had been made by the ciiy to the Inclined Plane Company, under the said ordinance of 1871, and 1875, for the reason that the act could not have a retroactive effect, The rule in regard to the effect of curative statutes is,

i‘If the irregularity consists in doing some set, or doing it in the mode which the legislature might have authorized or made immaterial by prior law, it may do so by a subsequent one,”

On this principle the legislature may validate contracts made ultra vires by municipal corporations, Sutherland on Statutory Construction, section 483.

The most important question to be considered now is: Has the plaintiff company a legal title to the property involved, namely, the line of street railway described in its petition, and the right to maintain, occupy and operate the same?

Under the proceedings in the United States circuit court to which the city of Cincinnati was a party — although the defendant village'was not a party — the property,said street railway, was sold on foreclosure of mortgages described in that suit, and in which action the validity of the ordinance in question were involved,

The effect of .the decree of the superior court, affirmed by the supreme court of the state, came under review, and it was in said action held and determined, that the ordinances in question were validated by the act of the legislature of March 30th, 1877; and thereupon it was ordered that the city of Cincinnati be and it was enjoined from interfering vith the railway company in the maintenance and operation of its road, and under that decree the property was sold. The purchaser at such sale became and is subrogated to all the rights that the mortgagees had or could have under their mortgages, and the sale so made passes the title of the mortgagor so validated by this decree to the purchaser.

The title of the Inclined Railway Company was directly put in issue by the city in the action of the said, the Louis'ville Trust Company, in the United States circuit court; not only was its title involved, but the city in said action pleaded the judgment of the superior court as affirmed by the supreme court of the state of Ohio in support of its contention, as a bar to any inquiry into the corporate capacity of the railway company to receive or hold these grants, The federal court had jurisdiction of the subject matter, and of the parties, namely, the city of Cincinnati,' the mortgagor, the Inclned Plane Railway Company, and the mortgagee — said trust company — 'and the validity of the mortgagees were necessarily involved, as well as the rights, of said mortgagor,the Inclined Plane Railway Company,under said ordinances.

The United States circuit court having such jurisdiction, its decree determined and settled the title of the mortgagor, as well as of the mortgagees under their mortgages, and by holding that the judgment of the superior court as affirmed by the supreme court, was not conclusive as to the corporate capacity of the Inclined Plane Company to acquire its property,the purchaser at said sale had the right to look to and rely upon the decision of the circuit court as a source of title to the property of the plaintiff. We understand the rule of law to be, that where a party has obtained judgment in his favor, as did the city of Cincinnati, in the superior court, and afterwards becomes a party to another action in which such prior judgment was, or could be pleaded as a bar, but either failed to make the plea, or having made it, the plea was overruled for any reason, and a contrary judgment was entered in the latter case; the last judgment will govern, and the former judgment is, in effect annulled. Freeman on Judgments (4th Ed.), vol. 1, sec. 332; Semple v. Wright, 32 Cal., 659, 669; Semple v. Ware, 42 Cal., 619-621.

“Of two decrees rendered by the same court upon the sams/ rights, between the same parties, the latter decree is binding.’’

Cooley v. Brayton, 16 Iowa, 10; Bateman v. Grand Rapids & I. R. Co., 96 Mich., 441.

The plaintiff company having acquired its title under the decree of the United States court, and being in privity with the rights so adjudicated in favor of the mortgagee, it is entitled to be subrogated and to have and enjoy the rights, privileges and powers which were settled and established by that judgment and decree in favor of said Inclined Plane Company through said mortgagees.

“The purchaser at a sale made for the enforcement of a mortgage or other lien, is subrogated to the rights of the original lien holder, even though the proceedings were invalid and his purchase has been avoided. Unless he secures a title under his purchase, the sale is treated as an equitable assignment of the mortgage to him, and his grantee takes the same right.”

Sheldon on Subrogation, section 31, and authorities cited in notes, 5, 6, and 7.

In Brobst v. Brock, 10 Wallace, 519, at page 534, the court say:

“It is enough that an irregular or void judicial sale, made at the instance of a mortgagee, passes to the purchaser all the rights the mortgagee as such had. For this authority is hardly needed. We may however, refer to' Gilbert v. Cooly, Walker’s Chancery (Mich.), 494; where it was held that though a statutory foreclosure of a mortgage be irregular, and no bar to the equity of redemption, yet the purchaser at the sale succeeds to all the interests of the mortgagee.”

This brings us to the question of the effect of the judgment of the circuit court of the United States, which was affirmed by the supreme court, in the case of the Louisville Trust Company, supra. The trust company was a foreign corporation, and the city of Cincinnati was a defendant, which gave the circuit court in this state jurisdiction of the action. United States constitution, article 3, section 2. The state courts of this state also had jurisdiction to • determine the controversy between-the trust company and the city of Cincinnati involved in the action, In other words, the circuit court of the United States and the courts of this state had concurrent jurisdiction to determine whether the mortgage of the trust company was valid, and whether the corporate capacity and power of the Inclined Plane Company were extended and validated by the act of the legislature of March, 30th, 1877, and the adjudication of either court would have been conclusive upon the other. The judgment of the circuit court of the United States must be given the same force and effect by the courts of this state, as is given to the judgment of the state court. Crescent City Live Stock Company v. Butcher’s Union, 120 United States, 141; 2 Black on Judgments, section 938.

In the case cited, the court said:

“And their (the judges of the .circuit court) judgment or decree when rendered is binding and perfect between the parties until reversed, without regard to any adverse opinion or judgment of any other court of merely concurrent jurisdiction. Its integrity, its validity and its effect are complete in all respects between all parties in every suit and in every forum where it is legitimately produced as the foundation of an action, or of a defense either by plea, or in proof, as it would be in any other circumstances. While it remains in force, it determines the rights of the parties between themselves, and may be carried into execution in due course of law to its full extent, furnishing a complete protection to all who act in compliance with its mandate,’’

The plaintiff company having acquired its title under the decree of the United States court, and it being in privity with the rights so adjudicated in favor of the' mortgagees, it is entitled to have and to enjoy the rights, privileges and powers which were established by that judgment through the Inclined Plane Company, the mortgagor, and in favor ofjthe Louisville Trust Company, the mortgagee.

The conclusion therefore is, that the plaintiff company has a good title to its right of way and the franchises granted by the city of Cincinnati under and by virtue of the ordinances of 1871 and 1875.

The plaintiff company having such title, our next inquiry will be: How, if at all, can the defendant village deprive it of these rights, or prevent the plaintiff from"operating or using its road?

The contention is, that the defendant village was not a party to the suit in the United States circuit court, and therefore is not bound by its decree, and that it has the right by ordinance or otherwise, to abate the railway of plaintiff by removing its railway tracks and destroying the same, or, as prayed for in its amended answer and cross-petition, by decree of the court have a mandatory injunction, requiring the plaintiff to remove its rails from the Carthage pike and other streets in the village of Carthage.

This presents two questions:

First — Can the defendant village abate the railroad as a nuisance by ordinance?

Second — Can it abate the railroad by proceedings in equity by injunction?

As to the first proposition. The questions of nuisance or obstruction must be determined by general and fixed rules of law, and it is not to be tolerated that the local municipal authorities of a city can declare aDy particular business or structure a nuisance in such a summary mode, and enforce its decision at its own pleasure.

By section 2640, Revised Statutes of Ohio, the council of an incorporated village has the supervision and control of all public highways, streets, etc., within the corporation, and shall cause the same to be kept open and in repair and free from nuisances. But the provision does not authorize a village or city council by mere declaration to determine that a certain structure is a nuisance unless it, in fact, has that character.

Justice Miller in Yates v. Milwaukee, 10 Wallace, 497-505, says:

“It is a doctrine not to be tolerated in this counjtry, that & municipal corporation, without any general laws either of the city, or of the state, within which a given structure can be shown to be a nuisance, can, by its mere declaration that it is one, subject it to removal by any person supposed to be aggrieved, or even by the city itself.”

In the process of abating a nuisance there are limitations, both in respect to the agency which may be employed, and as to what may be done in execution of the remedy. The general proposition has been asserted in text books and repeated in judicial opinions, that any person may abate a public nuisance, But the best considered authorities in this country and England hold, that a public nuisance can only be abated by an individual when it obstructs his private rights or. interferes at the time with his enjoyment of a right common to many, as the right of passage upon the public highway, and he thereby sustains a special injury, The public remedy is ordinarily by indictment for the punishment of the offender, wherein, on judgment of conviction, the removal or destruction of the thing constituting the nuisance,if physical and tangible, may be adjudged, or by bill in equity filed in behalf of the people. The plain reason of the rule is, that due process of law requires a hearing and trial before punishment, or before forfeiture of property can be adjudged for the owner’s misconduct. Lawton v. Steele, 119 N. Y., 226; s. c., 16 Am. St. Rep., 813.

Therefore, when the village of Carthage was threatening to destroy the tracks and property of the plaintiff within the village, it gave the plaintiff its right of action against the village, to enjoin it from committing such violence,

Has the village of Carthage the right to resort to its action in equity, as claimed in its cross petition, namely, for an injunction restraining the plaintiff company from operating its railroad in and through the streets of said defendant village?

It may be stated as a fact, not disputed, that the occupancy of the street and turnpike was not only with the consent of the village, but through its council the road was located, extended and double tracked at its special instance and request; or, in other words, briefly stated,'we have a case where a municipal corporation, through its council,invites a company or corporation to come into its corporate limits and to occupy its streets with railroad tracks for the purpose of operating a street railway, and upon such action on the part of the village, the corporation does enter and expends money, equips a line of railroad at great expense, and does other acts and expends large sums of money in equipping its road for use and operation in connection with its line so constructed, by inducements so held out to it by the village.

After such action on the part of the village, suppose it to have acted irregularly in the matter, so far as its municipal action through its council is concerned, can it afterwards repudiate its action, and by a suit in equity or otherwise, revoke its action and destroy the rights and property so acquired by the railway company? We think not. Coming thus into a court of equity the village must come without fault, end its action must be free from taint.

And this brings us to the. consideration of the second proposition that we deem necessary to consider, namely, is the village estopped?

The village of Carthage did more than to stand by and silently see the corporation, the predecessors of the plaintiff in the chain of title, construct a street railroad in and upon its streets. It, by resolution and by solemn acts of its council, urged and encouraged it to do so. How can that same village be heard to saythat the action of its council was wrong, unauthorized, and that it had no power to give the privileges or make the grants it attempted to do? We think this is a question the village is not in a position to raise in a court of equity. The village is in the same position of a party who stands by and sees a public enterprise, such as a railroad, constructed in its streets at great expense with other valuable interests attached thereto. It is then too late for it, after the enterprise is consummated and large sums of money have been expended on the strength of their action and active encouragement, to seek by induction or otherwise to deny the right of the company making the improvements or its successors to use the property. Goodin v. Cincinnati Whitewater Canal Company et al., 18 Ohio St., 169, 179; Pennsylvania Company v. Platt et al., 47 Ohio St., 366-381.

In the case of City Railway v. Citizens Railway, 166 United States, Justice Brown, at page 566, says:

“All that is necessary to create an estoppel in pais is to show that upon the faith of a certain action upon the part, of the city, which it had power to take, the company incurred a new liability, as for example, by the negotiation of a new loan and the issue of new bonds and mortgage to secure the same,”

The doctrine of estoppel in pais applies the same to municipal corporations as to individuals. Board of Supervisors, Logan Co., v. The City of Lincoln, 81 Ill., 156; Thd Union Depot Company v. The City of St. Louis, 76 Mo., 393; Grant v. City of Davenport, 18 Iowa, 180, 187, 188; The City of Atlanta v. The Gate City Gas and Light Co., 71 Ga., 106; Bigelow on Estoppel, 376; Athens v. Georgia R. R. Co., 72 Ga, page 80; Oshkosh Common Council v. State, 59 Wis., 425; Chicago & Northwestern R. R. Co. v. People, 91 Ill., 251; Rio Grande R. R. Co. v. Bromelle, 4 Tex., 88; Herman on Estoppel (1st Ed.,) page 527, section 563; Tone v. Columbus, 39 Ohio St., 281-310; Lane v. Kennedy et al., 13 Ohio St., 42-49; Elster v. Springfield, 49 Ohio St., page 82-98.

Considerations of public policy as well as recognized principles of justice between parties, require that we should hold in this case that the property of the plaintiff cannot be interfered with by the village of Carthage; nor can it now revoke the action of its council whereby it granted the right to occupy its streets for the plaintiff’s street railway.

The cross-petition of the defendant village is dismissed and the injunction of the plaintiff is made perpetual; defendant to pay the costs of this action.

E. W. Kittredge and John W. Warrington, for Plaintiff.

Samuel S. Hammel and John R. Sayler, for Defendant.

Adams and Douglass, JJ., concurred


author: Smith, J.

text:
    (First Circuit — Ham. County Ohio Circuit Court
    Jan. Term, 1899.)
    Before Smith, Swing and Cox, JJ.
    CLARA T. WILDER ET AL. v. ALEXANDER McDONALD ET AL.

      Bill of Exceptions — From when the fifty days run—
    The time within which a petition in error mav be filed begins to run from the date of the rendition and entry of the judgment, notwithstanding the trial court on a subsequent date overruled a motion for a new trial and made separate findings of fact and conclusions of law.
   Smith, J.

We see no reason to change the opinion heretofore expressed on the motion to strike from the files the petition in error in this case on the ground that it was not filed within six months from the day of the rendition and entry of the judgment which is sought to be reversed.

On the 26th day of June, 1897, the case was tried to the court, and a judgment entered dismissing the petition at the costs of the plaintiffs, to which they excepted. On the 29th of June, a motion to set aside the judgment and for a new trial was filed. At a subsequent term, viz., on October 13th, the court entered an order, making a separate finding of facts and its conclusions of law, and overruled the motion for a new trial, but no entry was ever made by the court in any other respect modifying or vacating the original judgment of June 26th, nor was there any other judgment entered on Octobér 13th.other than that overruling the motion for a new trial.

S. T. Crawford, for Plaintiff in Error.

Maxwell & Ramsey, contra

The petition in error was not filed until April 13, 1898, which was much more than six months from the entry of the judgment in the case, viz., June 26th, but was within six months from the overruling of the motion for a new trial and the entry of the finding of' facte.

This question, we, think, is- conclusively settled by the decisions of the supreme court in the cases of Young v. Shellenberger, 53 Ohio St., 291-9, and Dowty v. Popple, 58 Ohio St., 395. If the court had in any way, by the entry of October 13th, modified or set aside the judgment entered on June 26th, there might have been some ground to believe that the petition in error might be filed within six months from that date; but this was not done, and if the plaintiff below allowed the six months from June 29th to run without filing his petition in error, he can not do so afterwards.


author: Norris, J.

text:
    (Third Circuit — Hancock Co., O. Circuit Court
    Dec. Term, 1898.)
    Before Price, C. J., Day and Norris, JJ.
    JOSEPH REDFERN v. THE BOARD OF COUNTY COMMISSIONERS OF HANCOCK COUNTY.

      Ditch fr,om upper to lower county — Power of upper county to enlarge, etc. —Arrangement with lower county required■—
    (1). Through parts of the counties of Hancock and Wood is a joint county ditch, located and constructed by the joint action of the Boards of Commissioners of said counties, as provided by law. Hancock county is the “upper county”. The Board of Commissioners of Hancock county, upon petition for that purpose filed with the auditor of said county, order that the portion of said ditch serving in Hancock county, be enlarged by deepening and widening, thereby accelerating the flow of water, and taxing the outlet in Wood county as originally constructed far beyond its capacity; and all this without notice to, agreement with, or the consent of, the Board of Commissioners of Wood county. Held, that such action of the Commissioners of Hancock county is not warranted by the statute, and that their order made in that behalf is inoperative and void.

      Same — Injunction granted adjacent land-owner— When proper—
    (2). That the plaintiff, whose lands will be damaged by the enlargement of said ditch and its effect, inasmuch as it does not appear from any information imparted by the record that the action of Baid defendant commissioners is irregular,he may have remedy by injunction.
   Norris, J.

In the year 1878, a joint county ditch was constructed through the plaintiff’s land by the joint action of the commissioners of Wood and Hancock counties, .and the plaintiff’s land was assessed for the cost of location and construction of said ditch. Said land is situated in Hancock county,and lies on the Wood county line.

On the 29th day of January, 1893, a petition was filed with the auditor of Hancock county by Sarah J. Pepple, praying for the cleaning out, deepening and widening and straightening where necessary, of this joint county ditch in the county of Hancock. Such action was taken and such proceedings were had by said commissioners that an order was made by them that said ditch be cleaned out and deepened from the head of the ditch to the county line, and plaintiff’s land was assessed therefor. Under this order the ditch is to be deepened below the bottom of the old ditch to an extent of one foot and forty-five hundredths through plaintiff’s land, and a corresponding depth through its course in this county. The plaintiff claims that thereby the flow of water will be greatly increased from above, down upon his land, and that for this increased flow of water no sufficient outlet is provided or exists, and that he will thereby suffer great and irreparable damages. That no outlet has been provided for and no arrangements made with the commissioners of Wood county therefor; nothing to them paid or arranged to be paid for the benefit of an outlet, and that the ditch as now in Wood county is insufficient to take care of,the increased flow of water. That the ditch in Wood conuty is filled up and obstructed and needs deepening and widening. That the plaintiff receives no benefit, and that unless the ditch is deepened and widened in Wood county, the deepening and widening in this county will be of no use, and greatly injure and damage the plaintiff, and overflow his land, and he asks that the defendants be enjoined from cleaning out and deepening and widening said ditch as contemplated.

The answer admits the location and construction of the ditch as a joint county ditch; admits the action of the commissioners of this county, and that they are about to cause said ditch to be cleaned, deepened and widened, and that plaintiff's land was and is assessed as he alleges, and that it lies on the Wood county line, and the defendants deny all of the other allegations of the petition.

Upon the issues as thus tendered and the evidence, the common pleas found in favor of the defendants, and the case is here submitted upon the pleadings and the evidence on.appeal.

It is conceded that the ditch here in controversy was established and constructed in 1878, under the laws governing the construction of ditches in more than one county. In that proceeding, it is conceded that the commissioners of Hancock and Wood county agreed as to the necessity of the improvement and amount to be paid by the upper county, which is this county, to the lower county, Wood, for the benefit of the outlet thus obtained in Wood county. And in that proceeding, and for that purpose, this land of the plaintiff was assessed. The statute provides what action shall be taken by the commissioners of adjoining cunties when a ditch is caused to be constructed, enlarged or repaired where the water flows from one county over into and finds an outlet in the adjoining county, and makes provisions to reimburse the lower county for any burden cast upon.it as the water way for the upper county. And when the work is for the benefit of the upper county, the amount to be paid by the upper to the lower county must be determined before any work is commenced on the improvement in the upper county. This is^'to be settled by the joint boards of the two counties at a joint meeting of such boards.

The statute also provides what may be done when the boards do not agree, or, when the upper county refuses to pay at all to the lower county for the burden of the outlet,

The purpose of the improvement contemplated in the case at bar is to enlarge by deepening and widening the portion of the joint county ditch which serves and lies in the upper county. When steps have been taken by the commissioners of adjoining counties to construct a joint ditch, and the costs and expenses of the location and survey and laying out of the ditch have been incurred, and done by the agreement of the joint boards, or, where they do not agree, and after wading through long and expensive litigation as is frequently the case before a basis is reached, it appears to have been the legislative intent as far as may be, to prevent a repetition of the same proceedings and expense. In this case the burden of the lower county has been fixed, for the original water course, and the amount to be paid by the upper county has been determined. This is a joint county ditch; it has been located and constructed, and the costs have been fixed and agreed upon and apportioned and paid. Now the legislature has blazed the way so as to avoid further disagreement and appeals to the courts because of disagreement between the two boards, and has pointed out the method in which this joint waterway may be kept serviceable, and if necessary enlarged and made more serviceable. When such a ditch needs to be cleaned out, enlarged or repaired, any owner of any lot of land which has been assessed for its construction, may make a statement in writing to either of said boards of commissioners, setting up such necessity. When this is done, the law fixes the duty of the board thus applied to, and makes the duty very plain, and when it has performed its duty and received the report and estimate of its officer appointed to examine the ditch, if the officer report favorable to the improvement, then said board gives notice and forwards a copy of said report to the board of the other county, and it then becomes the duty of the boards of both counties to meet in joint session and apportion the expenses of such proposed imnrovement. The day for disagreement and refusal and litigation as to the improvement passed with the original location and construction of the ditch, because the necessity of action has been found by the board to which the land owner made the written statement, and who appointed the officer to examine the ditch and its condition and make the estimate and report.

It surely was not the intention of the law-making power that so fully recognized the necessity of joint county ditches and their construction and provided for them, that after it was all done, a joint method of keeping them up should not be pursued, but that one board, without the other, and that board, the board of the upper county,could facilitate the speed of flow and acceleration of water, and tax beyond its capacity the outlet and make inavailable the very purpose to the lower county, and in fact to both counties, for which the joint action had at first been taken and the ditch had been originally located and constructed, and hence the enactment of section 4510-11 of the Revised Statutes.

It is true the commissioners of the upper county may abandon the proposed construction of the joint county ditch, but that is not the case here. The joint county ditch has been constructed, and the effort here made is not to abandon, but to make it of more worth and service to the upper county, and that to the damage of the plaintiff. So that the majority of the court is of the opinion that the proceedings taken by the commissioners were not in accordance with the laws in such case made and provided, and are inoperative and void.

There can be but little doubt that the outlet below this plaintiff’s land north of the Wood county line is insufficient to meet the requirements which this proposed improvement will demand of it. Redfern’s land is at the county line; at the county line the proposed ditch ends at the present bottom of the old ditch upon a level or grade with it, The engineer, Mr. Phifer made no examination below the county line with a view to determining the question of outlet and overflow. He says he was not ordered to do this, and did not do it.

We think the evidence clearly shows that to make this improvement as contemplated will not be of benefit, but by accelerating the speed of the water flow, and by causing the water which took days perhaps to pass, to reach his land probably in as many hours, the place where there should be a sufficient outlet, will cause his land, which is not high land, to be overflowed at every considerable flood, and we think that this is a burden which ought not to be placed upon him, when,by taking the necessary legal steps, it could be avoided, and that before the improvement- is made a sufficient outlet should be secured by proceedings pointed out by the statute. That the commissioners acted without legal authority does not appear from any defect in the record of this proceeding. It is not disclosed by this record that the ditch which is to be cleaned and deepened and widened is a joint county ditch, or any part of a joint county ditch, so it would not appear from any examination of the record, or from any information that the record imparts, that the action of the commissioners is irregular. “The steps are regular in form so that the illegality does not appear on the face of the proceedings. ’ ’ Yet, while this is true,it appears from sources other than the face of the record, that the board of commissioners proceeded contrary to the law and without jurisdiction, so that there being no adequate remedy pointed out by the law, we think that injunction will lie. The court therefore finds for the plaintiff, and perpetually enjoins' the defendants as they are thus proceeding with this improvement,and this at the cost of the defendants, and the case is remanded for execution,

Blackford & Byal, for Plaintiff.

C. E. Jordan and Joe Poe, for Defendants.

Day, J., dissents.


author: King, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan. Term, 1899.)
    Before King, Haynes and Parker, JJ.
    THE LAKE SHORE & MICHIGAN SOUTHERN RAILWAY COMPANY v. THOMAS F. FORD, Administrator.

      Refusal of Request to charge — Oomment of judge on request, what remark not prejudicial—
    The remark by the judge at the trial of a case in refusing to charge the jury certain requests handed him by one of the parties, that they do not conform to his view of the law, made in the hearing of the jury, is not such comment as the statute does not authorize, and does not constitute reversible error
    Error to the Court of Common Pleas of Lucas county.
   King, J.

The action below was brought by Thomas F. Ford, administrator of Thomas Ford, deceased, who was an employe of the Lake Shore & Michigan Southern Railway Company, and who, on the morning of March dth, 1895, about 2 A. M. was killed on the railroad tracks of said defendant. Be was employed in the yard as a track repairer hr section man, so-called, and on this occasion — which was a very stormy night, snowing and blowing very hard — he was called up about this time to go out in charge as foreman, • with another employe, to sweep out the tracks at the switches, so that the rails would properly work when required, and he engaged in that work and walked up easterly towards the Lake Shore bridge crossing the Maumee river, had finished his work upon the track where he had been engaged, and was returning towards the station on the grounds of defendant company. The Lake Shore Company there, as elsewhere, has two main tracks: one known as the “east-bound”, and the other as the '“west-bound” track. Outside of the yard, east-bound trains go on the east-bound track — which is the north track — and west-bound trains go over the west bound track — -which is the south track. In the yard that rule is not universal, as to switching engines, but it is usual. On the night in question a switching engine was required to assist a freight train going east on the eastbound track, out over across the river and up a short grade some distance east of the river — perhaps a quarter of a mile —at about the time when these men were at -their work sweeping out switches. This engine was detached from the rear of the train that it was so assisting, and was running back into the yard. Of course, in going out it went out upon the eaBt-bound track, as that was the track that the train was on, and the t?ack that the trains usually ran on. The switching engines, ordinarily, however, passed from ?the east on to the west-bound track immediately after detaching from this train at the cross-over there; but at¡this particular time that track was blocked-by a train standing fon the track — -and a part of it possibly on the bridge — so that this engine was required to run west on the east- bound track until it crossed the river, At this end of the' bridge there is a crossover where it might have gone on to the west-bound track and come into the yard, and if required to go onto the east-bound track, it could have passed from that“over a crossover farther down. There was another cross-over three or four hundred feet west of the first one west of the bridge that it could have, passed over on to the west-bound track there, as well as farther down. The decedent had completed his work and had started back in company of the man with him, and he walked three or four feet ahead of him as they walked back on the east-bound track. They did that, as was testified,because they would then be passing east-bound trains, and could see them and thus had a good deal better opportunity to protect themselves. The walking at that time was better in the tracks than it was anywhere else, and if they walked between the tracks there woul be some danger from passing trains. There was a curve or bend there,and west-bound trains passing along on the west-bound track at that point would have a slight sland towards the north, and if two trains came along, it would not be safe, in a dark night, for men to walk between the tracks. A great many of the men engaged as these men were walked the track as the living man asserts; he said they usually did it, and, besides, it was their duty, in daylight at least, to observe as they walked along from one point to another the condition of the rails and of the track, and it is argued that it was their duty on this dark, cold and stormy night. I doubt, however, if the evidence on that point showed that at that time they were thus engaged on that duty. It was dark and they had neither of them a lantern, and it was snowing, and I do not think they were engaged in looking at the track, whatever may have been their duty — I think the evidence shows that.

Now, it is claimed by the railway company that the recovery below was contrary to the evidence and the law, and it was also claimed that the court erred in some comments made upon the requirements to charge. We will not have time to go over this evidence. We have read it over carefully, and we think it makes a fair case to submit to a jury, both as to the negligence of the defendant and the contributory negligence which is alleged by the plaintiff in error.

It may be that the defendant was negligent in not providing a rule providing for the warning of men on the track; it may be that it was negligent in not providing some method by which an engine running as this one was, upon the wrong track, should warn employes that might get upon that track; it might be that it was negligent in running at a too high rate of speed under the circumstances under which it was running — six or seven miles an hour; it was said it was a dark night,and the engineer testified that he could not see more than thirty feet ahead of the engine if he looked. It was a dark and stormy night, and there was some evidence to show that the cab was closed; that there was no window open, and there is some doubt whether they were looking at all. They ran over this man, and did not know of it until they were hallooed at. They did not see either of the men. The first man had just jumped off the track and barely escaped; the other man, two or three feet ahead, did not see or hear the enigne and was run over and killed. All those things are possible acts of negligence of the defendant, and were proper to submit to a jury under the circumstances. The fact that this engine was running upon the wrong track, should be taken into consideration in determining whether the decedent was negligent also; also the customary manner of doing the work. We think all those facts go to the jury. This case is peculiarly a question of fact upon which the jury were entitled to draw inferences of negligence, or not, and, whichever way they decided it, if the case was properly tried, we do not see how a reviewing court could reverse it. We think we are authorized to say this by the decisions of the courts in cases somewhat similar. Some of these cases are found in 90 Wisconsin, 215, 220 and 221; 50 Ohio St., 135, 142 and 24; 74 Federal Reporter, 285; 51 Ohio St., 130, 139, 140, and others. We think on the question of negligence of either of the parties it is a case peculiarly for the jury, and that we are not authorized to disturb their verdict finding that the defendant was negligent, and that the decedent was net negligent in a manner contributing to his injury,

At the close of the testimony . both counsel submitted written requests to be given to the jury before argument. The defendant below submitted a series of eight requests. The court gave the first seven of the series, and refused to give the eighth. The court then said that all of the other requests were refused. This was after he had read all of the requests of both parties that he intended to give. He ad-ed that they were refused because they did not conform to his views of the law. It is said now that that comment was such as the statute does not authorize. We do not see very much force in the argument. We do not think the language of the court complained of amounts to anything; it certainly could not prejudice the defendant below, and the only question left is, whether the court should have given the eighth request. We have read it over, and we think that the eighth request limits the jury; it recites certain facts, and says if the jury find those they must find for the defendant. We think it limits the right of the jury to pass upon the evidence in the case to too small a number of facts: there are other questions in the case than were em_ bodied in the request. The court refused it for the reason that it did not make the exception, as that, if they found that the facts existed embodied in the request, and did not find, or failed to find that the defendant by its agents and servants,by the exercise of ordinary care after they had discovered that the decedent by his negligence was in danger of being run over, could not have avoided injuring him — in other words, that it was their duty after they found that he had put himself in a place of danger, even if the plaintiff was negligent, it was their duty to avoid injuring him if by the exercise of reasonable care they could, which is a well known rule of law; but we think that the substance of the request was improper, and that the court properly refused it. There was no other exception to the charge, and both parties expressed themselves satisfied with the charge; we think that the charge was fair, and the jury having passed upon the facts, we decline to disturb the verdict.

Potter & Emery, for Plaintiff in Error.

Hurd, Brumbach & Thatcher, for Defendant in Error.


author: Swing, J.

text:
    (First Circuit — Hamilton Co., O. Circuit Court
    Jan. Term, 1899.)
    Before Swing, Smith and Gilfen, JJ.
    GUCKENBERGER v. DEXTER ET AL.

      Attorney’s fee in action under see. 1777-9 Rev. Stat. — Measure of compensation—
    The amount or compensation to be allowed by court, under section 1779, R. S., to the attorney for a tax-payer in the performance of a public duty, should have reference to that paid to public officers for similar services, rather than to the amounts which individuals might feel like paying their attorneys.
   Swing, J.

By direction of the supreme court the question as to allowance to the tax-payer for his costs and a reasonable compensation to his attorneys under section 1779, Revised Statutes, in this case has been left to this court.

We have been asked to allow as compensation to plaintiff’s attorneys the sum of $25,000.

We have received testimony from quite a number of lawyers in large and active practice as to the value of the services rendered, the amounts ranging from $3,000 to $25,000.

The question involved in the litigation is recognized by every one as being of very great importansce to the city, and as a result of the litigation, most valuable results have been obtained for the city, and this must be so, whether there has been a saving to the city in having this particular contract set aside or not, for the power of the city to refund its bonds has been defined in a- very important particular, and the question in that regard has been put at rest. The settlement of these important questions has certainly greatly benefited the city. We are strongly inclined to think also that in having the contract in question declared void there has been a great saving to the city, although it can not be definitely ascertained how much, if anything has been saved to the city in this respect, until the time arrives when these bonds shall have been refunded; still it would seem to be reasonably certain that the bonds can be refunded when the time arrives for their refunding at a much lower rate of interest than what was provided for in this contract. At the present time the bonds of this city are selling at a price which shows a difference between that provided for in this contract of over 11,200,000; and as the rate of interest for such securities has for more than thirty years been declining uniformly, it hardly seems probable that it will increase in the next ten years. As capital accumulates, the rate of interest declines. And in considering what shall be allowed for compensation in this case, we have taken into consideration that a very important question has been settled and that a very great saving has been effected by it to the city. The. case having been heard by us we are of course familiar with the character of the questions involved, We do not regard the question as being very intricate or difficult of solution; but very able and eminent counsel were employed in opposition to the plaintiff, and every possible point was ably presented by them, and of course it required a very considerable time and ability to meet the arguments of opposing counsel, and this we know was very ably done, and that plaintiff’s case suffered nothing at the hands of this able counsel.

We are therefore of the opinion that the compensation for the attorneys in this case should be as full as the conditions justify.

But in arriving at this conclusion we are of the opinion that services of this nature are not to be governed by what is paid by private corporations or individuals for similar services. Neither do we think that the amount arrived at should be ascertained by taking as a basis any percentage on the amount saved to the city although, as a whole we have considered that a large amount was involved and has been saved.

Compensation for the performance of public duties is not expected to be as high as that paid by individuals, and in allowing compensation under this provision, what is allowed public officers for the performance of like duties should be borne in mind.

The plaintiff in this case volunteered his services for the benefit of the public with the knowledge that he himself should receive no compersation for whatever service he might render, but the law says he should have Lis costs and a reasonable compensation for his attorney. We think it evident that the compensation under this provision should never be so large as to possibly invite litigation whose moving’^purposes might be the compensation allowed by this section.

Entertaining this view in regard to this law, we have concluded to allow the sum of $5,500 for compensation to plaintiff for his attorneys.

And while it comes very far short of being what attorneys have asked for and which undoubtedly they think they should in justice receive, still we are of the opinion that we have been exceedingly liberal in our allowance,- even though the services performed have been arduous and able, and the benefit to the city through it have been great and lasting.