author: King, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Haynes, Scribner and King JJ.
    INSURANCE COMPANY v. LUCE.

      Mre Insurance — Total Loss — Structure under sec. 3634 Rev. Stat. defined.

    1. Under the terms of an insurance policy describing “one boiler engine and apparatus pertaining thereto, contained in the five story and basement bricu, medal roof, Musee theater building, Number 240, Summit street, Toledo, ” which boiler and engine were in fact built in the basement of said building, and con-' structed upon permanent foundations, the boiler being enclosed by a brick wall, the court would be justified in instructing the jury that the same constituted a structure within the meaning of section 3643, of the Revised Statutes, under which, in case of a total loss, the insurer is bound to pay the full insured value of the property.

      Same — Verdict final—
    2. The Court, in fact, submitted the question whether this was a structure to the jury under appropriate instructions and definitions, and the jury having found under the charge of the court that the boiler and engine in question was a structure, their, verdict upon the facts presented will not be disturbed.

      Same — Submitting value of property to arbitration not a waiver of statutory right to full insured value—

    3. The parties, by voluntarily submitting the value of the property destroyed to arbitration, did not waive the right to insist upon the payment by the insurer of the full insured value of the property, since the provisions of the statute in question upon that subject cannot be waived or contracted away by the parties.
    Error to the Court of Common Pleas of Lucas county.
   King, J.

Action was brought in the court of common pleas to recover upon a certain policy of insurance which had been given to the plaintiffs, covering the following property: “One boiler, engine and apparatus pertaining thereto, contained in the five story and basement brick, metal roof ‘Musee•Theater5 building, No. 240 Summit street, Toledo, Ohio.55 The amount for which this property was insured was $1,500. The policy was in the usual form It contained a provision, among others, that after a loss, if the parties could not agree upon the amount of that loss, each might select an appraiser, and if those two did not agree on the amount of the loss, they could select a third. This is a provision.common to all or. nearly all the insurance policies, and, of course, is operative in any event and in any policy as to any loss that may occur upon property, either real or personal, which shall be less in amount than what is termed in law a total loss. It is a very proper provision to insert, and either party would have the right to insist upon the carrying out of this provision regardless of any suit, if either claimed that there was a loss, less than a total loss, because such loss becomes, in the nature of things, the subject of appraisement — a subject, at least, for agreement between the parties; and if they can’t agree, then appraisement is the method which the parties may provide for determining the amount of the loss.

It is not claimed in this proceeding in error that the loss was anything other than a total loss, although there was a claim of that sort made upon the trial; but that claim is not here presented. So that we have a case of the total loss of this property.

After the loss, the parties proceeded under this provision o f the policy to have the loss appraised, and the appraisers fixed it at $696.

The buiding in which this property is described as located was also insured in other policies, to the amount of $30,000, which was adjusted and paid after considerable discussion, and this adjustment did not include anything for this property. Nor did this policy cover any other property than that contained in the description which I have read.

There were proofs of loss made out by the parties under the other policies, and in those proofs of loss they set out no other insurance upon the building than that described in the policies other than this one.

On the trial of the case in the court of common pleas it was claimed by the plaintiffs that they were not bound by this appraisement, but that they were entitled to recover the face of the policy, if there was a total loss under the provisions of sec., 3643, Rev. Stat., which provides that:

“Any person, company or association, hereafter insuring any building or structure against loss or damage by fire or lightning, by a renewal of a policy heretofore issued, or otherwise, shall cause such building or structure to be examined by an agent of the insurer, and a full description thereof to be made, and the insurable value thereof to be fixed by such agent; in the absence of any change increasing the risk without the consent of the insurers, andf also of intentional fraud on the part of the insured, in case of total loss, the whole amount mentioned in the policy or renewal upon which the insurers receive a premium shall be paid, and in case of a partial loss the full amount of the partial loss shall be paid.”

This case was submitted to a jury under the charge of the court and upon the evidence, and the jury returned a verdict for the full amount of the policy. It is claimed now by the Insurance Company that that verdict is erroneous, as being against the law and the evidence, because the court erred in its charge to the jury, and in refusing to give the requests to charge offered by the defendants below, and in giving the requests to charge presented by the plaintiffs below. The whole question made by these requests and by the exceptions to the charge resolves itself into the single one, whether the court properly presented to the jury the question, whether this property so insured, and as the evidence aside from the policy of insurance described it, was, within the meaning of sec. 8643, a structure.

The argument upon both sides has been very full, extensive and interesting, and the question is not free from difficulty.

The policy does not undertake to say anything about this property, except that it is a boiler and engine situate upon this property; but the evidence in the case shows that a boiler and engine were placed in the basement of this building for the purpose of furnishing heat to it for the benefit of the different tenants that might occupy the building, and for the purpose of operating the elevator that was used in the building. They were located, in the basement, and the boiler was covered by a brick wall. It was insured as a boiler and engine, and as a matter of fact, the agent made no valu&tion of it.

It is claimed by the plaintiff in error that the parties below treated this property in their description of it as personal property, or chatttel property, in such a way and to such an extent that it could not be held to be a structure within the meaning of this statute. What they mean by that claim is, that they have said that it was a fixture. In other words, they made no claim to the insurance companies carrying the $30,000 of insurance of having insurance upon the boiler and engine as a part of the building; that they in their proofs of loss claimed that there was no other insurance. But the most persistent claim is made that the parties themselves, by voluntarily permitting this to go to appraisal, have waived their right to insist upon the provisions of this statute. As a matter of law, this, of course, is not so; for the Supreme Court have certainly settled that question under this statute. In the decision in 47 Ohio St., Ins. Co. v. Leslie, it is held that the parties themselves cannot waive these provisions of the statute, else they might contract them all away, and they might agree in their contract that notwithstanding the statute, they would still consent to and permit an appraisement of a loss that was a total loss. And it is decided that the statute was enacted as a measure of public policy. On page 417 they say:

“The statute cannot, we think, be treated as conferring upon the assured a mere personal privilege which may be waived or qualified by agreement. It has a broader scope, It moulds the obligation of the contract into conformity with its provisions, and establishes the rule and measure of the insurer’s liability.”

That opinion is quite an able one, and is supported by other authorities that are even more pointed than the prinoipal case, upon the principle that the courts^will enforce a statute of that kind, and will not per mit][the*par ties to waive or contract it away by any act of their own; because[if they can do it by one act, they can do it by others, whictqwould entirely invalidate the provisions of the statute; so they cannot in law waive that statute.

If this was a structure within the meaning of that statute, then it makes no difference what the parties have done about it, or what contract they have made with reference to it, or what they did after the loss occurred they have not waived their right to insist upon the payment of the full^measure of their damages as fixed by law.

The fact that they consented to this appraisal might have two explanations, and properly so. First — As said before, if there was any pretense here that this was not a total loss, either party had a right to insist upon this provision of the contract, for the purpose of determining, if it was not a total loss, to what extent it was a partial loss. That must be the subject of agreement, and that may be the subject of arbitration, Second' — It was claimed on the trial that a dispute arose before this appraisement was made as to whether this was a structure or not — whether it came within the terms of this statute. The Insurance Company said it didn’t; the parties'said it did; but the Insurance Company said then, “We will submit it to arbitration, and if it should be found it is not a structure, then arbitration will govern; if it is a structure, it will not prejudice you in any way.’’ And for this reason, it is said, the arbitration was agreed to and the appraisement made. I do not see that this evidence has any effect or cuts any figure in this case, one way or the other. So far as determining the question that is involved here is concerned, the court might just as well have ruled it out. I doubt very much whether the defendant below was entitled to have it admitted for any purpose.

The questions that have been argued circling around this question of structure, have related principally to the charge of the court, and we have examined that with a great deal of care. The first impression from hearing portions of it read, was, that the court had not submitted any question to the jury, or at least had not really submitted the question that ought to have been submitted to the jury whether this was a structure; but a careful reading of the charge convinces the court that the question is left to the jury, and, so far as we can determine, under proper definitions and instructions. Of course, when it came to the question involved, it was the duty of the court, as it will be conceded all around, to instruct the jury upon the definitions to be regarded by them in applying the evidence to determine whether this was a structure; and it was no doubt a matter of some difficulty. The court use some language which is capable of a construction which might not be altogether correct, but taking the charge altogether, I don’t think that-can be truthfully said of it.

The court said to the jury that one question to be determined by them was, whether this was a structure, and proceeded to give them as a definition of a structure some of the elements embraced in the law, which, as a matter of fact, the court read from an opinion of the Supreme Court in 11 Ohio St., which was an opinion defining thecriterions of fixtures to real estate or the fixtures to buildings. He then said, after giving to the jury the definitions contained in that opinion:

. “And you will inquire whether, upon the evidence before you, this insured property was so attached to this building, or this foundation, as to constitute it, within these rules, a fixture. ’ ’

That language, standing alone, would not present the question which the jury was to pass upon. They did not have to determine whether this was a fixture or not. But the court does not stop there. The court then proceeds and gives in three requests to the jury submitted by the plaintiffs’ counsel in considerable detail a definition of what a structure is under the laws of Ohio. And then the court says in addition to that:

“The engine and boiler, alone and unattached to the realty, so as to become a fixture under the above rules, would be personal property and not a structure as contemplated in this statute; and unless you find under-the rules and upon the evidence before you, that it had become a fixture, before or at the time that this policy was issued, then the terms and conditions of this policy are valid and binding between the parties, the plaintiffs and the Insurance Company, and the award made by the appraisers, which is in evidence before you, binding and final, and the plaintiffs in this case can recover no more than the amount of the award. ’ ’

That was not prejudicial to the defendant.

“But if you find under the rules which I give you, and upon the evidence before you, that this insured property was a structure in contemplation of this statute, and considered under these rules, then the statute entered into and became a part of the contract of insurance, and controls its construction and operation, and sets aside and renders inoperative every condition and provision of the policy in conflict with the statute. ’’’

So that the court finally winds up with the question which the jury are to pass upon; and when this charge is fairly considered, all that the court said about fixtures has only been incidental to the discussion of the main subject to be defined, to-wit: a structure. And it will be conceded that some of the elements constituting fixtures are applicable to a definition of a structure. A structure is defined by Webster to be a “joining together, to construct, connected construction.’’ And in Anderson’s Law Dictionary there is no definition except a couple of cases. A statute provided that where an injury was caused by a structure legally placed upon a. highway by a railroad company, that the railroad company, and not the person who was bound by law to keep the highway in repair, should be liable. It was held that by a “structure” was meant some permanent stationary erection rather than an object like a moving car or an engine. And so where the plaintiff brought an action claiming that he had been injured by the erection of a structure, to-wit: a railroad car, the court found that the railroad was a structure within the meaning of that statute, but that the person was not injured by the railroad, but was injured by an engine, which was not a structure. In another case, in 35 Ohio St, 563, the court held, under a statute authorizing alien on “any house, mill, manufactory, or other building, appurtenance, fixture, bridge, or other structure,” that it would not allow a mechanics’ lien upon a railroad as a structure, because, the court reasoned, by describing a bridge, a building, and other things of a similar nature, it excluded the idea that a railroad would be liable to an ordinary mechanic’s lien. They do not undertake to discuss the question of what a structure is. They decided the case upon the grounds that I have suggested.

It then became a question of fact, under the definitions given by the court to the jury, whether this engine and .boiler, so located and established, and so fixed upon a permanent foundation, and so used, was a structure within the meaning of the insurance policy. The jury found that fact with the plaintiff below. And in order to reverse the judgment on the charge of the court, we have to say either that the court was wrong in its definition of what a structure was, or that the jury were wrong in the application of the definition. We cannot say the jury were wrong in the application of that definition; nor would I say it was not entirely within the province of the court to have held,' or- to have charged the jury, that this boiler and engine as situated, was a structure within the meaning of this statute. Instead of the fact that this was insured separately being an argument against this construction, it seems to me an argument in favor of it. It was insured separately as a boiler and engine situated in a place where it was to remain, irremovable — it was to remain during the term of the contract. Necessarily that made it permanent,-that made it fixed, that mads it annexed to the realty. That distinguished it from anything that was movable — made it a permanent and fixed erection, or construction, at this place. So I think the court would have been justified in saying that this was a structure within the meaning of this statute. But as the court left that to the jury, we say the jury were entirely justified in the conclusion at which they arrived, that it was a structure. And the theory upon which the court gave this explanation to the jury was, we think, correct. That being so, all the requests submitted by the Insurance Company were properly refused, since they fairly and clearly, proceeded upon the directly opposite theory, and assumed certain things which, if given to the jury, must of necessity have compelled the jury to have found a different verdict.

Doyle, Scott & Lewis, for plaintiff in error.

Brown, Gecldes & Tyler, for defendant in error.

The judgment is therefore affirmed.


source: Caselaw Access Project

author: King J.

license: Public Domain

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Haynes, Scribner, and King, JJ.
    CALDWELL v. BROWN.

      Practice — Questions submitted to jury — Inability to answer for insufficiency of evidence — When will not invalidate verdict—
    On the trial of an action certain questions having been submitted to the jury for answer, they answered by saying that they could not answer from the evidence. Such answers will not be held to invalidate the verdict, where the evidence in full is not set forth by a bill of exceptions, bearing upon the questions submitted to the jury,or where the facts necessary to answer the questions de* volved upon the excepting party to show by a preponderance of. evidence and the bill of exceptions does not disclose that he made out the facts by a preponderance of the evidence, necessary to enable the jury to answer correctly.

      Error to the Court of Common Pleas of Lucas county.
   King J.

The plaintiff in error asks a reversal of the judgment of the court of common pleas for several reasons. This case was before this court a term ago, and was then reversed, the ground of reversal being that the court had failed to submit to the jury, and allow the jury to take with them, certain requests made by one of the parties. There was submitted to the court at that time a question relating to the answers of the jury to certain questions, and a decision was made upon the question as presented, The question argued to the court was not at that time decided. The main question presented at this time arises upon the same matters — that is, the submission to the jury of certain questions which they were instructed to answer, and which, it is claimed, they failed to answer. And in this connection I will say, there are other errors alleged. Several exceptions to the charge of the court were taken, but none of those, were discussed.

We have examined the charge and the parts of it excepted to, but we do not find any error in it, nor any other errors in the record.

I will only consider the single question which was discussed before us. The statute requires the court, on the request of either party, to instruct the jury that if they find a general verdict, they shall also answer particular questions of fact to be stated in writing, and the court should direct a finding. And the statute further provides, that when the special finding of facts is inconsistent with the general verdict, the former should control, the latter, and the court should give the judgment accordingly. It also provides that the jury may be instructed by the court on its own motion, or upon the request of the parties, to find all the facts in the case in general.

In this case the plaintiff below brought a suit to recover for wages which he claimed he had earned, and which had also been earned partially by his two minor sons in doing carpenter work for the defendant. He set forth an account of it. The principal part of the account was for his own services, but a portion was for the boys. The defendant answered, and among other defenses, he said he had a contract with the plaintiff to build two houses at $100 each, and that all this work was done on those houses. And he also made out a counter-claim, whereby he claimed he had suffered and sustained damage by reason of improper work or work improperly done; and there was considerable cross-firing on the trial about that. This was dropped out of the case, being no longer a question; but on the trial a question was made, and it is covered, I think, in the pleadings by a general denial, that the services of the boys were performed on the buildings that were to be constructed under the contract, or part of them were rendered there, Caldwell claiming that he didn’t know the boys were to work by the day for him, and he never employed them; and, I think, perhaps the claim was made in the course of the testimony that he informed their father that he didn’t want the boys to work, because they were incompetent, or at least one of them. The father, on the other hand, claimed on the trial, and introduced evidence to show, that they did work right along and in Caldwell’s presence and with his tacit assent, at least, if not his express assent; and that therefore he would be liable, even if there was no contract. Otherwise, he claimed that he had a contract to furnish the boys, as a part of the hands, and never had been notified not to furnish them. Then the bill of exceptions taken at the trial says that the plaintiff offered evidence tending to prove the allegations of his petition, that the defendant offered evidence tending to prove the allegations of his answer and cross-petition; and the plaintiff in rebuttal offered evidence tending to prove the allegations of his reply. That in substance is alFof the bill of exceptions, as to the testimony. There are some special things stated, but I shall not go over them.

Then there were submitted to the jury these questions at ■the request of the defendant below, Caldwell:

1. Did the defendant employ Burt Brown, the son of the plaintiff? A. Yes.
2. Is any part of the work charged for in the account set forth in plaintiff’s petition, work done upon the house built by plaintiff under the contract mentioned in the answer and cross-petition? A. Yes; and charged for by the day.
3. How much, if anything, is due to the plaintiff on account of the work done on contract for the construction of the house mentioned in the answer and cross-petition? A. Cannot say exactly.
4. What, if anything, is due the plaintiff for the work and labor of plaintiff’s son Burt Brown upon work, other than that done on the house mentioned in the answer and cross-petition, and called during the trial the Cross house? A. Cannot itemize.
5. What amount, if anything, is due the plaintiff for work and labor of the defendant’s son Byron Brown, for work other than that done upon the house mentioned in the answer and cross-petition, and called during the trial the Cross house? A. Cannot answer.
6. Whát amount, if anything, is due the plaintiff for work and labor other than that done on the house mentioned in the answer and cross-petition, and called during the trial the Cross house? A. Cannot tell.
7. What amount, if anything, is due the plaintiff for work and labor other than that performed under the contract mentioned in the answer and cross-petition? That was not answered.
8. What amount is due the plaintiff for work and labor, both of himself and his sons, if anything, for work on the contract mentioned in the defendant’s answer and cross-petition ? A. Cannot tell.
9. Was the house mentioned in the answer and cross-petition of defendant, and called during the trial the Cross house, completed by the plaintiff in accordance with the contract under which it was undertaken to be built by the plaintiff. A. No.
10. Was the work done on the house mentioned in the answer and cross-petition, and called during the trial the Cross house, done in good and work-man-like manner ? A. Yes; considering material and character of house contemplated.

It is claimed that there was not a true verdict; that it didn’t respond to the questions which the court submitted to the jury. It will be seen that the jury answered all these questions but one. Their answers are: they cannot tell, cannot find out, cannot ascertain, cannot itemize it. But they are answers. It is not a refusal to answer, but it is an answer; it is a finding by the jury that they cannot find from the testimony an answer yes or no. As to the question they did not answer, it is mere repitition of a question which they did. So it was not a mistrial or a failure to render a verdict.

It must be assumed in a fair interpretation of this statute that the court will not disturb a general verdict, which in all cases must control, unless it appear from the special verdict that the general verdict is incorrect, when there is any showing made as to what evidence the jury had before them or upon which they acted. We are clearly of opinion that a bill of exceptions which recites that evidence was given tending to prove the allegations of the petition, and the allegations of the answer, and the allegations of the reply, would not give the court any idea what the evidence was, how much it weighed, what the effect of it is.

If we must decide on the weight of the evidence, we must have all of it, to know how much each and every item weighs. It is said that there was a failure on the part of the jury to act as they ought to have acted. They have said: ‘We cannot tell from the evidence.” Nor can the court tell whether that is correct or not — that is to say, whether the jury ought to have told from the evidence or not. Taken as it is, we must say the jury were right that they could not tell.

Again, it is a matter of importance to the plaintiff. He brought this action to recover upon an account. How much of this work was done upon the contract house, and how much was done outside upon other houses, if it is of importance at all in the case, it is of importance to the defendant alone, and the burden of proof was upon the defendant to show by his evidence how much was done by the boys and how much by the father, and how much was done upon the contract house and how much upon the others outside, if he deemed that question material. So the burden was upon the excepting party to prove the thing which ought to appear in the record in order to enable the court to determine that the verdict is wrong.

Several cases were cited to the court. I shall refer only to two of them., and they are fairly in point. One was 107 Indiana, 485, and the other 113 Indiana, 597; but a case which was not cited is in 108 Indiana, 375, in which a question was asked of the jury as to which had the greater capacity, the watercourse or a certain sewer in litigation. The-answer was, “Don’t know; there was no evidence on that point.’’ The court said:

“In the face of the general verdict, and in view of the fact that the burden of proof was on the appellant, it cannot be asserted that his cause is made out, for it may well be that the capacity of the sewer was so little different from that of the natural water course. Nor does it appear from the answers that the culvert caused the overflows; for anything that appears, the overflows may have occurred more often before than after the construction of the culvert. Nor does it appear that the incapacity of the culvert was the approximate cause of the overflow of appellant’s property, and it is well settled that it must appear that the wrong of the defendant was the proximate cause of the injury which is alleged as the cause of action.
“It is the rule that a special verdict must state all the facts essential to a recovery, and that nothing can be supplied by intendment.

Curtis T. Johnson, for plaintiff in error.

M. D. Merrick, for defendant in error.

“It is also the settled rule, that if facts are not found in a special finding they will be presumed, as against the party who has the burden of proof, not to have been proved.”

There is considerable more in this case which is pertinent to the question, but I will not read it.

We find there is no error in this record for the reasons I have stated.

The judgment of the court of common pleas will be affirmed, but without penalty.


text:
    (Sixth Circuit Lucas Co., O., Circuit Court
    January Term, 1896.)
    Before Haynes, Scribner and King, JJ.
    OLIN W. BENSTER; plaintiff in error v. FRANK POWELL & CO., defendant in error.

      Admission to party — When competent against him—
    1. The admissions of a party are competent to be given in evidence against him, but when offered as such they must be direct admissions, and not hear-say.

      Same — Hear-say evidence defined.

    2. The testimony of a witness on trial in behalf of the plaintiff that at some time prior he had told the plaintiff what the defendant had told him, or the testimony of the plaintiff that the witness in question told him what the defendant had said to the witness . on some previous occasion, is hear-say.
    Error to the Court of Common Pleas of Lucas county.
   King, J.

Tbe plaintiff in error was defendant below. The case seems to have had a curious history. In 1884, about twelve years ago, Powell & Co. began a suit before a justice of the peace to recover in replevin a lot of personal property, machinery, etc. — in fact, all the property that Benster claimed to own or possess at the time. Some of this property they took on their writ, and some they took without a writ, and other parts of it they destroyed. An action was brought then for destruction of the property, which has been disposed of, and has nothing to do with this case. This is a trial of the aforesaid replevin suit, commenced in 1884, tried before a justice, and appealed to the court of common pleas. There it remained, in a comatose state, until October, 1895, when it was tried, and a verdict rendered for the plaintiff below.. It is claimed that verdict should be set aside.

Powell & Co., when they began this proceeding to get possession of this property, claimed they had bought it of Mr. Benster’s wife, who had shortly before that been residing with him and upon good terms, but who at that time had left him; and that she had claimed to own all property which Benster was in possession of, and that she sold it to Powell & Co., who were engaged in the same kind of business that Benster was undertaking to carry on.

The first notice that Benster had of this sale was when Mr. Powell appeared at his shop, and claimed that he had bought its contents. Mr. Benster refused to deliver it up; and the next morning Mr. Powell came again with a constable and a large force of men and teams, and carried it off. One of the curious features of the case is the manner in which Powell & Go. claim they acquired title to the property. Without consultation with the apparent owner, or any notice to him, the person who was in possession of all of it, they purchase it of that man’s wife.

It is conceded in the case that the plaintiff procured such title as he had to the property in question of Mrs. Benster, and that her title, whatever it was, came by virtue of a written agreement made between her and her husband prior to their marriage, by the terms of which Mr. Benster sold to his intended wife certain chattel property. The agreement itself had been put in evidence before a justice of the peace some twelve years before this trial in the court of common pleas, and there lost or mislaid, and the question of its contents is a material question here, the plaintiff claiming that the paper conveyed practically all the chattel property owned by Benster, while Benster^claimed that it named the articles, and that the ones named were not the ones claimed in this action by Powell & Company.

On the trial of the case before the justice • in 1885, the several claims of these parties were set forth; the wife, who appeared as a- witness there, and Powell & Co. and their witnesses, testified to the contents of this paper as they had seen it the year before. And they also testified in' this trial as to the contents of it, claiming that the paper provided for the conveyance of all Benster’s property to his wife. Benster, the defendant, claimed that it provided for specific personal property. And it was conceded that the paper had been received in evidence before Justice Scott at a time previous when there was a trial of the right of property in which some of this property was involved, having been levied upon by somebody who had a judgment against Benster; and it was conceded practically on this trial as well as that before the justice of this case, that the paper was last seen in Scott’s court. When this case came on for trial, Mr. Benster appeared as a witness in court with a paper which he said was the one, and he testified that he had found that among Mr. Scott’s papers; and what he relates in that respect is absolutely uncontradicted by any evi dencé in the record, except the testimony of the witnesses who testified to the contents of the paper.

„ On this trial in October, 1895, this paper is presented. The plaintiff proceeds to give in evidence from his witnesses the contents of the paper as it originally existed, as they saw and read it; and the witnesses, somewhat remarkably,have no difficulty in remembering exactly what its contents were, although they were business men, were quite actively engaged in business, and had not seen it for nearly twelve years.

The plaintiff, to make out his case, was bound, of course, to show that he had purchased this property from the woman, and had acquired title to it. To do that he testified himself, and he called other witnesses, among others, J. A. Barber. Mr. Barber claimed that in 1885 Mrs. Benster came to him and employed him to act for her in her difficulties and troubles, and among other things, wanted him to sell this property; and he applied to Powell & Co. as being the ones likely to purchase, they being engaged in the same business, to purchase it; and he did sell it, and sold all of it. Now, the plaintiff was making out this title to this property, and it was competent for him to show- — and really that is the only thing that it was competent for him to show — that he bought the property and paid1 for it, and of whom he bought it, and then perhaps back of that the title of his grantor. He claimed that he bought of Mrs, Benster who claimed to be the owner. In making out his firm’s title and right of possession, he called Mr. Barber, and the following occurred:

“Q. You have stated, yesterday, in your testimony, that you delivered this bill of sale — this property — to Powell, and that you negotiated the sale. A. Yes.
“Q. What was said to him in regard to the title of the property and the statements of Mr. Benster in regard to its wonership ?

That is objected to. The court says:

“The witness may give any statement that he communicated to Mr. Powell, as having been made by Benster before that.
“Witness — Before we secured the sale?
“The Court — Yes; before you secured the sale; not anything after the sale, but up to the time of the consummation of the sale, you may give any statement which you gave to Powell as coming from Benster.
“(To that we except.)
“Witness — I urged Mr. Powell to take this property, and, to convince him that the wife owned it, I gave him a history of the matter. I told him what Mr. Benster had sworn to, and that there could be no possibility of any trouble with his title. I told him that Mrs. Benster owned it, and I didn’t think there would be any question ever' raised about it.
“Mr. Tolerton — Q. Was there anything said to him at the time about what Benster had said to you? A. Yes, sir; I told him that Benster had said to me on numerous occasions that his wife owned that property, and that I would sell- it to him, ’’

Then they called Mr. Prank Powell, and he was asked:

“Q. What, if any, statements did Mr. Barber make to you while negotiating this sale in regard to the title of the property, as to statements made by Mr. Benster ? A. Well, he gave me to understand—
(Objected to.)
“The Court — I think that, perhaps, in part, is objectionable. (To the witness): You must confine your statement to telling the jury what Mr. Barber communicated to you as having been said or sworn to by Mr.. Benster before that time.
“Witness' — Mr. Barber told me the title to the property was all right. — ■
“Mr. Tolerton — Q. No; about the statements of Benster. A. Well, he said, with other things, that Mr. Benster had sworn that the property all belonged to his wife, and that it did belong to his wife, and that there was no question of title about it. That was the sum and substance of it all.’’

That is the first error complained of in this record. There are other questions made, but there are none other to which I shall deem it necessary to allude, further than to say that we find no specific errors excepted to in the record.'

Was this evidence competent at this "stage of this case? Mr. Powell was making out his title to his property, and it was proper for him to give in evidence where he procured it, of whom he bought it, and also to further give in evidexxce, if there was any question made, the title of the person from whom he bought it — in this- case Mrs. Benster— where she got it, how she came by it, who she bought it of. The title to personal property is traced like the title to any othér property, by showing its exchange or its course of passage through the different owners who have held and owned it. 'After all, the question is, Who owns it? It was proper for Powell to show what title he acquired, if he bought it. To make that out it was proper to show the facts attending the sale — not necessarily the conversations, but the facts attending the sale to him, and the sale to any other person through whom it was necessary for him to trace the title. He could show it by the persons who were engaged in the transaction, and he could show it further by circumstances, and by the admissions of the defendant. But here the court seems to have gone off upon the idea that the statements by a person under oath of what he had said that had been said to him would be the same thing as for the witness to testify to what was said to him. Mr. Barber is then permitted to say that he told Powell that Benster had said to him that he had sold this property to his wife. He said that he told Powell that Benster had testified in another case that he had sold this property to his wife. And then Mr. Powell is put on, and he testifies, not to what Benster told him, which would have been competent, and the only thing that would have been, but what Barber told him that Benster said-in a justice’s court, and also to him, Barber. It seems to the court, without any doubt, that this kind of testimony is incompetent. Of course, there might come a' time when some of that' testimony would be competent in the way of rebuttal, after cross-examination; but in making out the plaintiffs’ case, it certainly was not competent to repeat what M, Barber told Mr. Powell, nor what Powell heard Mr. Barber say that Mr. Benster had been saying, no matter where Benster said it; no matter whether it was under oath in another case; no matter whether it had been said to Barber; no matter to whom it had been said. The witnesses could testify to admissions made to him by Benster; that is all he could testify to. We think those were substantial errors.

The controversy in this case turned wholly upon whether the jury should believe, ultimately, that this contract which was brought in by Mr. Benster in this case, was the original document that had been made. The witness who testified in relation to it were Mr. Barber, Mr. Parks, Mr. Hike, and others. They testified that they had seen this, as I say, over, eleven years before,and they were positive that it contained many different things than the paper presented by Mr. Benster contains.

The controversy is over the genuineness of that document. If Mr. Benster had said to Mr. Barber, either in a trial or elsewhere, that he had sold to his wife under an antenuptial contract all his personal property,such a statement would tend to’ contradict the claim which he made on that trial that this paper was the contract, and did not convey all but certain specific articles; it would tend to support and uphold the claim which the plaintiff made in order to sustain his title, that all the property had been conveyed. (When I use the word “all,” I mean all the property involved in this suit.) So, as I have said, the plaintiff, in making out his claim, and in making out his title, was entitled to introduce Mr. Benster’s admissions, but he must introduce them correctly; he could not introduce what somebody else said he had heard Mr. Benster say; else he might go all over town, and call in witnesses, and introduce the statement of not only one witness, but half a dozen. It may be true that there is not much difference between the effect to be given, so far as Barber’s testimony is concerned, to the statement that he told Powell what he claims he had heard Benster say, and his statement on the trial of what Benster said, if he had so testified. But there is . a decided difference in fact. Mr.. Barber did not swear on that trial that Mr. Benster told him this; the only thing he swore to was that he told Mr. Powell that Mr. Benster told him so. What Mr. Barber would have said if asked the direct question, we cannot assume. But if there was no difference in the case of Barber, there was as to Powell. He testified to what Mr. Barber told him, without ever having heard Mr. Benster say a word on the subject, and that testimony certainly was not competent.

Hurd, Brumbach & Thatcher, for plaintiff in error.

E. W. .Tolerton, for defendant in error.

We shall reverse this judgment for the admission of these two items of incompetent testimony. We have some doubt whether this verdict is not against the weight of the evidence, but are not clearly of opinion that it is, and shall not so hold. For myself, I think that a very formidable arraignment of this judgment could be made out from the testimony, but we do not care to express any opinion upon the particular items of testimony, but reverse the judgment upon the ground I have stated, and give the parties an opportunity to try it over.


author: Marvin, J.

text:
    (Eighth Circuit—Cuyahoga Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Caldwell,.Hale and Marvin, JJ.
    J. P. BROWN, adm’r of bonis non of the estate of J. J. Smith, dec’d v. S. TROTTNER.

      Administration of estates — Jurisdiction of Probate Court over equitable claims in the administration of estates — Power to order payment of particular claim out of particular ftmd—

    In the administration of estates, the Probate Court has the power to adjudge whether a part of the fund in the hands of the . administrator shall be used to pay a particular claim.
    Error to theo Court of Common Pleas Cuyahoga County.
   Marvin, J.

This cause is brought here upon a petition in error to reverse the judgment of the Court of Common Pleas of this county.

The proceeding was originally brought by Trottner in the Probate Court of this county, by the filing of an application asking for an order of that court that said administrator pay to him, Trottner, out of a particular fund then in his hands as administrator, the full amount of a certain claim which was owing by Smith at the time of his death to him.

There is an agreed statement of facts in the case, from which it appears that in 1890 the decedent, Smith, and. his wife Elizabeth, gave their note to Trottner for a considerable amount on account of a debt owing to Trottner by their son; that at the time of the execution and delivery of such note, Smith and his wife transferred by a written contract, as collateral security, to Trottner three certificates or policies of life insurance, two upon the life of J. J. Smith, payable to Elizabeth, and one upon the life of Elizabeth payable to J. J. Smith.

Shortly after said transaction Elizabeth died, and there was then paid to Trottner, out of the funds received on account of the certificate on her life, to apply on the indebtedness evidenced by said note, the sum of $700. Other payments were made upon this indebtedness by Smith in his lifetime. J. J. Smith died about the 1st of February, 1892, at which time Trottner still owned said note and held the two certificates on the life of Smith. There was still a considerable amount owing upon the note.

Brown was appointed administrator de bonis non on his estate, and made proof of Smith’s death to the Insurance Company, for the purpose of securing payment of the money provided for in the certificates.

For the purpose of obtaining settlement with the company, it became necessary for Brown to have possession of the certificates, and they were thereupon, at- Brown’s request, delivered to him by Trottner. The amount called for by these certificates was $3,000, but some dispute arose between Brown and the Insurance Company as to the liability of the company, and finally, with the approval of the Probate Court, Brown received and accepted, in full payment for the death of Smith, the sum of $1,500.

After such settlement between the Insurance Company and the administrator, Trottner presented his claim on the note to Brown for allowance, and the same was rejected.

Trottner then sued on the note in the Court of Common Pleas, praying that such administrator be ordered to pay the amount still due on the note, but asserting no lien, nor was anything said in his petition about his having any collateral security for the payment of the note. This action resulted in a judgment for Trottner for $713, and costs, and ■ an order by said Court of Common Pleas that said administrator pay the same. No part of this judgment has been paid.

After this suit was ended, proper proceedings were had, resulting in a finding by the Probate Court that Smith’s estate was insolvent. The administrator, acting as commissioner, gave proper notice of such insolvency, calling upon creditors to present their claims; the claim of Trottner was not again presented for allowance. (However, it is not claimed that anything is lost to him on account of not so presenting his claim a second time.)

Before the end of the six months allowed for presenting claims against the insolvent estate, the application before mentioned was filed in the Probate Court, asking that the claim of Trottner be found to be superior to that of all other creditors of the estate, so far as this insurance money was concerned, and that an order be made that the administrator pay Trottner’s judgment and costs in full out of such fund. Brown filed a motion to this application, that it be dismissed for want of jurisdiction in the Probate Court.

The motion was overruled, and on hearing, the court made the order as asked in the application, that Trottner’s claim be paid out of this insurance money. An appeal was taken by Brown to the Court of Common Pleas. Brown then in the Court of Common Pleas again filed his motion to dismiss, on the ground that the Probate Court had no jurisdiction, and the motion was overruled and exception taken. The cause was heard upon the agreed statement of facts already recited, and judgment was entered that the claim of Trottner be paid in full out of this insurance money. Motion for a new trial was filed and overruled; bill of exception taken, and a petition in error filed |in this court to reverse the judgment of the lower court.

The errors complanied of, all resolve themselves into the question of whether or not the Probate Court had jurisdiction'of the matter set out in the application filed by Trottner in that court:

Our attention is called by counsel for plaintiff in error to Sec. 524 Rev. Stat., as to exclusive jurisdiction of Probate Courts, wherein it is provided among other things that such court shall have jurisdiction.

“Third, to direct and control the"conduct and to setlte. the accounts of executors and administrators and to order the distribution of estates.5 ’

Now it is urged that, though the Probate Court is expressly authorized by statute to exercise certain equity powers, for example, in proceedings for the sale of real estate, where under provision of Sec. 6145, the court is to determine equities and fix the validity and priority of liens, yet that since it is a court of limited and statutory jurisdiction, it can only exercise such powers when the same are expressly conferred upon it by statute.

On this proposition we are cited by counsel for defendant in error to the case of Clapp et al. v. Banking Company et al. 50 Ohio St., beginning on page 524.

I read from the second paragraph of the syllabus, calling attention to the fact, however, that this case arose under the statutes regulating the assignment in trust for the benefit of creditors: “’Where such assignee” I am now reading from the second clause of the syllabus, “has allowed the claim of a partnership creditor as valid against the estate of the individual partner, but has placed an endorsement thereon postponing it to a claim which he has allowed as a preferred claim, because in form, the latter appears to be a debt created by the individual, and not by the firm, and has filed a report and settlement of his accounts accordingly, and exceptions are filed by the first named creditor on the ground that the debt allowed as preferred, is in fact a firm, and not an individual debt, and, therefore, not entitled to a preference, the Probate Court has jurisdiction to hear such exceptions and determine the question thus raised. ”

In the opinion delivered by Judge Spear the question is discussed as to whether this section 6351, which provides that the Probate Court in the matter of assignments in trust for the benefit of creditors “shall order the payment of all incumbrances and liens upon any of the property sold or rights and credits collected, out of the proceeds thereof according to priority, ” confers the jurisdiction upon the Probate Court to determine the priorities of liens, and the result of that discussion is that it has that jurisdiction, and that it has it by virtue of that section of the statutes. But in the discussion, after having come to the conclusion that the statute gives the jurisdiction in that case, Judge Spear says — T read from page 537 of that report:

“But if, for the sake of the argument, we assume that the language of that section does not, in terms, expressly confer the jurisdiction, does it follow that such power is wanting? Although the Probate Court is of limited and statutory jurisdiction, it is, we think, a mistake to suppose that it has no equity powers unless the same are expressly conferred. A power given to'make a particular order implies authority to hear and dispose of all questions which it is necessary to have settled, before the making of such final order, unless the needed authority is distinctly denied.

Hon. Jesse A. McMath, for Plaintiff in error.

Carpenter & Young, for Defendant in error.

“An examination of other sections of the statute would indicate that the necessary authority is fairly to be implied. Section 6356 requires that an account shall be filed in the Probate Court by the assignee, containing a full exhibit of all his doings as such,up to the time of the filing thereof, to which exceptions may be filed by parties interested,and such accounts shall be examined, and the exceptions thereto heard by the court, and whenever, on settlement, the same shall show a balance remaining in the hands of the assignee, subject to distribution among the general creditors, a dividend shall be declared by the Probate Judge, payable out of such balance equally among all the creditors entitled.”

Apply this reasoning of Judge Spear to the statutes governing the settlement of the estates of decedents which have been declared to be insolvent, and it would seem to result necessarily in finding that the Probate Court had jurisdiction of the matter under consideration.

The statutes in relation to such estates provide for the payment of preferred claims, and for the hearing of exceptions to accounts filed; and section 6235 provides that after return has been made of claims allowed against an insolvent estate, “the court shall make such an order for the distribution of the effects among creditors as the case shall require.” Surely, one of the questions which it is necessary to have settled before such an order can be made, is whether any part of the effects to be distributed shall be used for the payment of a particular debt. Until such question is determined, the court cannot determine what distribution “the case shall require.”

We find no error in the finding that the Probate Court had jurisdiction in the premises and the judgment affirmed.


author: Smuih, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Swing, Cox and Smith, JJ.
    AUGUST HERRMANN et al. v. STATE ex rel. DELANEY.

      Contract for paving street — Sample brick furnished by lowest bidder not acceptable — Right of next lowest bidder to contract — Where the Board of Administration advertises for bids to pave a street with brick, all bids to be accompanied with samples of the brick proposed to be used, which must be found acceptable by the city engineer, and the sample brick furnished by the lowest bidder is not found acceptable, the board has no power to award the contract to such bidder, at the amount of his bid, on his agreement to use a certain other kind of brick which comes up to the requirements. The next lowest bidder would be entitled to the contract, if the sample brick furnished by him with his bid answered the requirements, and if he was diligent in asserting his claim. But where the bids were opened on August 7, and a petition for mandamus was filed October 25, held, that the delay defeated his right.
    Where the test of sample brick accompanying the bid was to be made by the city engineer, a test by another engineer is not sufficient.
    Error to the Court of Common Pleas of Hamilton County.
   Smuih, J.

In this case the majority of the court is of the opinion that the award by the Board of Administration of the contract for paving with brick a part of East Court street in this city, was, under the facts disclosed in this case, in contravention of section 2803, Revised Statutes, and therefore was invalid. It is admitted that under the advertisement for bids, on the specifications made, or a part of a bid, each person proposing to do the work must accompany his proposal with five samples of the brick which he was to use in making such improvement. Quill, to whom the contract was afterwards awarded, did so, but when submitted to the test provided for in the specifications on which the bids were founded, the brick wholly failed to meet the requirements. As a consequence of this it is clear that he was not entitled to an award of the contract, and the Board of Administration would have been entitled to consider his bid as no bid at all, and if the next highest bid was in due form, and the samples furnished by him would meet the requirements, the Board would have been fully authorized to enter into a contract with him. Or, under the provisions of the proposals for bids, it might have rejected all the bids, and re-advertised if it deemed it proper to do so.

But neither of those courses was adopted. What was done was this:. It was agreed between the board and Quill that if be would use another kind of brick than that which under his bid he was to use, viz., the Middleport Block, which would stand the test provided for, instead of the Reynolds Block, which would not, that he should have the contract at his bid. To this he agreed, and the contract was awarded to him. Thereupon the relator, Delaney, prosecuted his petition in mandamus alleging these facts, and that he was the next lowest bidder to Quill. That he had bid for said work in all respects in accordance with the specifications, and that he accompanied his bid with specimen bricks as required, which were in all respects in accordance with the specifications for the work, and claiming that when Quill’s bid was found not to be in conformity with the specifications, that he, as the next lowest bidder, whose bid conformed to the specifications, became in law entitled to the contract,' and the prayer of the petition was that the board be required to award it to him.

The answer of the Board admits the 'aking by the city of the necessary steps to improve this street, and the advertisement for bids. That bids were received aud opened August 7, 1895, and on that day referred to the engineer for computation and report. That afterwards the engineer reported that Quill was the lowest bidder for the work, and that the board awarded the contract to him.

It further admits, that the specifications provided that bidders should accompany their bids with sample bricks of the kind they proposed to use, and that they must comply with the test provided for, but it denies each and every other allegation of the petition.

On the issues raised the case was tried in the court of common pleas, and a peremptory writ awarded as prayed for. A motion for a new trial having been overruled by the court, a bill of exceptions was allowed, and the questions raised by the petition in error is, whether this judgment is right.

The ground upon which a majority of the court think that the board was not warranted in awarding the conract to Quill is this: The statute requires competitive bidding in such cases, and the contract could legally be awarded only to the lowest bidder, whose bid is in accordance with the specifications. The express provisions in this case were, that the specimen brick furnished with the bid, must stand a certain test. In this case it is clear that those furnished by Quill did not do so. The board then was not authorized to contract with him on his bid. To do so would be to set at naught their own express stipulations, and be manifestly unjust to other bidders, if he was allowed to substitute another and even a better, for an inferior article, and would be opposed to public policy. In such cases, as before suggested, they had the option to accept the next lowest bid, if injaccordance with their requirements, or to reject all bids. And it is not within the power of the board, in our judgment, to make an agreement with such person that he will put in other materials than those he had bid for, even if they.were of better and costlier material than that bid to be furnished by him. The reason for this is that the contract so made is not awarded on the one bid of' the person- — -the contract would be partly on his original bid and partly on a new contract made between him and the board, and such procedure might be liable to very gross abuse. In this case there is not the slightest reason to suppose that the board acted from other than the purest motives and with the desire to have good work done at less cost than would be done by awarding the contract to the next lowest bidder, whose bid, however, on a contract of near $10,000.00 was only about $308.00 higher than that of Quill. But the mode of doing it, we think, was not legal, and should not receive the sanction of he court.

Was tbe relator entitled to the contract? A majority of the court is also of the opinion that if it appeared that his bid was the next lowest, and in all respects^ complied with the requirements, and the brick furnished hy him as sample, did or would have stood the test, and he was diligent in asserting his claim, that under the circumstances disclosed he would have been entitled to the relief demanded. This issue, we think, is warranted by thej'decisions of the Supreme Court in Boren & Guckes v. Com’rs Darke Co., 21 Ohio St. 311; Beaver v.Blind Asylum, 19 Ohio St. 97, 108; American Clock Co. v. Com’rs of Licking Co., 31 Ohio St. 415; State ex rel. v. B'd of Education, 42 Ohio St. 374.

We are all of the opinion, however, that the evidence submitted does not bring the case within those principles. In the first place it is not shown to our satisfaction that the relator has been diligent in the assertion of his claim. This is requisite under the decision in 21 Ohio St. 311. The bids were opened August 7, 1895, and the contract entered into thereafter, but when, does not appear. The petition for mandamus was filed October 25, 1895. For all that appears in the case, the persons to whom the contract had been awarded had prepared the materials, and may even have completed the job, which was required to be done with'in ninety days from the letting of the contract.

But in the next place the evidence does not show that the bid of Delaney, even if it were the lowest, was such a bid as couM under the 'advertisement have been properly accepted by the Board of Administration. Hein effect alleges that iti'was, but the answer of the defendant denies, it, and proofjijwas necessary to show it.jp It was shown that Delaney d.idj,'file^with|his|bid samplefblocks as required. They appear to have been of the Middleport Block pattern. On the first of]|November, 1895, after the filing of the mandamus petition, Mr. Delaney submitted to Mr. Punshon, an engineer of this city, nine or ten samples- of Middleport Block, to be tested by him, to see if' they would stand a test similar to that prescribed by the advertisement for bids or the specifications, and he testified that they did. But the test was required to be made by the city engineer, and there is nothing to show that it was attempted to have this done; and still further, there is no proof tending to show that the bricks tested by Mr. Punshon, or any of’ them, were those filed with his bid. They may have been of a wholly different character, though it may be conceded that there is evidence tending to show that Middleport Blocks, as a rule, would stand the test. But to entitle a bidder claiming a contract under such circumstances, it must clearly appear that his bid was such as entitled him to the contract. See 21, Ohio St. 321, supra

Fred Hertenstein, Corporation counsel, for plaintiff in error.'

F. M. Coppock, for defendant in error.

The judgment of the court of common pleas awarding a peremptory writ is therefore reversed.


author: Laubie, J,

text:
    (Seventh Circuit—Geauga Co., O., Circuit Court
    Feb. Term, 1896.)
    Before Laubie, Frazier and Burrows, JJ.

    THE BASS LAKE COMPANY v. S. D. HOLLENBECK et al.

      Non-Navigable Inland Lake — Ownership of lands underlying same— Dedication to the Public—
    1. A non-navigable inland lake, with an inlet and outlet stream, is the private property of the owners of the lands underlying its waters, and is a subject of common law dedication to public use; but the acts and declarations of such owners, indicating the intent to dedicate the same to the public use, must be unmistakable in their purpose and decisive in their character to have that effect.

      Lease of Underlying Lands, with reservation of fishing rights, when assignable — Lease not acknowledged but coupled with possession, purchasers with notice binds—
    2. An owner may lease . his interest in such lake for a term of years, and reserve to himself the right of fishing therein during such, term. Such right of free fishery is a profit a prendre, and ordinarily is inheritable and assignable; but will be neither, if inconsistent with the terms of such reservation and lease and the object of the demise. If possession, such as is contemplated by the lease, is taken by such lessee, such lease, although not acknowledged, will be good as against subsequent purchasers who have actual knowledge thereof and of such possession.

      Same — Reservation of rights on lands leased — Subdivision of same-intent of parties to lease—
    3. Tf an owner leases for ninety-nine years his lands covered by the> waters of such lake, together with a strip along its border two rods wide, and reserves to himself, his heirs and assigns, the right to cultivate or use said strip for agricultural purposes, and, to pass over the same to and from the lake at will from his remaining lands, and to fish with hook and line in the waters over the lands leased, the right of such lessor to divide such dominant estate, including said strip, into parcels, and such free fishery into distinct interests, and sell the same, and thus distribute such right of way and free fishery, is limited not only by the character of such lands and the uses to which they were devoted at the time of the making of such lease, but, and more especially, by the purpose of such grant, as found in the terms thereof, when read in the light of surrounding circumstances referred to therein.
    Appeal from the Court of Common Pleas of Geauga County.
   Laubie, J,

This is an action brought to enjoin the defendants, twenty or more in number, from entering upon the waters of Bass Lake, (formerly called Munson’s Pond), to boat, fish or hunt,or to use the lake in any way for recreation and pleasure.

The plaintiff claims to be the owner of ail the lands underlying the waters of the lake, and bordering thereon, in fee or by leasehold.

The lake is in extent about one mile long, and in width varying from one-third to half a mile. It has an inlet stream at the extreme northern end, and an outlet stream near its southern end. There is a tongue of land, which is owned by the plaintiff, in fee, called the island, on the eastern end of the lake, and near its southern end. It is really a peninsula, and is called an island, because in times of high water, this peninsula is cut off from the main land.

The plaintiff alleges that the defendants are interfering with its rights in the lake; that the plaintiff has stocked the lake with fish; that it bought a hotel and summer resort on this island, and built at a great expense additional houses and buildings for the accommodation of the members of the company, their families and friends, who are using the lake for boating, fishing'and hunting purposes, and, for recreation and pleasure; that the defendants, especially in the inlet, keep and maintain a number of boats,and use the same for the purpose of entering upon the lake with their friends and others, to obtain, fish and hunt thereon, and have been doing so continuously for a long time, and that they take and destroy the plaintiff’s fish, and threaten to continue to do so, and will, unless restrained by the action of the court.

The defendants admit the ownership of a part of the land by the plaintiff; they admit that they are boating and fishing upon the lake, as charged, and that they intend to continue to do so, claiming they have that right; they deny that the plaintiff owns all of the lands covered by the waters of the lake, and allege that they own but a small part of it.

They allege that this lake belongs to the public; that it was dedicated to the public by the owners of the lake, about the year 1840, and that the public have continuously, notoriously and adversely used and occupied it ever since, for purposes of pleasure and recreation,' fishing and hunting upon its ■ waters, and on the adjoining shores; and therefore they claim the right to enter upon the lake, and to boat and fish over all parts thereof, and to use it for all purposes of recreation arVd pleasure.

They further allege that they are the owners in fee of a portion of the land covered by the waters of the lake, and bordering thereon, and have acquired and own fishery rights therein, and have therefore the right to enter upon its waters, for the purposes aforesaid; that these rights are superior to any that the plaintiff owns, and therefore they deny that the plaintiff is entitled to the relief asked.

This lake is a non-navigable inland lake, and is therefore the subject of private property, and whatever fishing or other rights may exist in the waters covering the land belongs to the owners of the lands. That a non-navigable inland lake is the subject of private ownership is settled in this state, in the case of Lembeck v. Nye, 47 Ohio St. 336. The right or rights that may be acquired in the waters of such a lake by the owners of the soil and of the riparian proprietors, and when and how they may be acquired, are there treated and defined,and cover many of the legal points raised in this case.

In the disposition of the case, as a matter of convenience, I take up, first, the question of dedication.

So far as the law is concerned, there perhaps can be but little doubt that such a body-of water is the subject of dedication to the public. At least we so treat it, that it is a subject of dedication at common law. A statutory dedication is not claimed.

In order to make such a dedication,the intention must be clear and satisfactory, upon the part of the owner, to dedicate it to public purposes, and an acceptance thereof by the public, for such purposes, must be shown. As this is purely a question of fact, it is sufficient in a published opinion to say that we find that the claim of the defendants in this respect is not true, and that the lake never was dedicated by the owners for any public use.

Passing that, therefore, and coming to the other questions in the case: there was substantially no dispute between the parties as to the conveyances made to them respectively, the questions being as to their construction and effect. These questions relate to, and grow out of, conveyances from F. B. Hazen and the Kelloggs,and as to those parties, they are the sourc of title of all of the parties to-this case, and there is therefore no dispute as to the title-in the Kelloggs and Hazen.

It seems, from the evidence, that in 1877, Downing & Smith established a summer resort on this inland lake, for boating, fishing and hunting. They built a hotel on the island near the southeastern corner of the lake, as I have already described, and for that purpose they bought the-island and contiguous lands, with rights of fishing, trapping,, hunting and boating in parts of the lake adjacent, and they leased other lands in the lake and on the margin to secure-all the rights of fishery in and control of the lake. These lands, righs and interests were subsequently conveyed to the plaintiff, The Bass Lake Company, who is the successor in the rights and interests of Downing & Smith; and plaintiff obtained other leases of parts of the lake and its margin, and expended a large amount of money in additional buildings and improvements in and about the lake, and established a private club house for members of the Company, their families and friends.

In the orally delivered opinion I recited at length all the-conveyances, by deed, and lease, with a description of the lands and rights acquired thereby by plaintiff and the defendants, which it is not necessary to here insert.

From this statement, as to titles of the parties, and the plaintiff’s rights, it is apparent that the plaintiff has the exclusive right as against the defendants, to all of the lake,, and its borders, except such portions of the lake as are comprised within the Miller and Tracy tracts, (as to which neither of the parties have any right), and except as such right is modified by the reservations in the Kellogg and F. B. Hazen leases.

As to said Hazen lease, it being for a longer period than three years, and not being acknowledged, it is not a perfect lease; but in law is a good contract for a lease, binding upon Hazen and all parties with notice.

The defendants admit they had, knowledge of it when they acquired title from Hazen, and claim that they purchased from Hazen, for the express purpose of testing the plaintiff’s rights. Therefore they had knowledge of this lease, or contract for a lease, and the possession by the plaintiff when they purchased from Hazen, and they are bound by it. They acquired no title as against that lease. Hazens’ land included a small narrow strip covered by the waters of the lake. There is in this Hazen lease an exception that needs to be considered in this case, to ascertain whether or not the defendants obtained any rights in the waters of the lake from Hazen, by reason of this reservation, as against plaintiff.

It is a lease for the period of ten years, to said party of the second part,and by which Hazen covenants: “To give to said second party the exclusive control and use of so much of his land as touches Bass Lake, together with all water, fishing, boating and trapping rights as belong thereto, and does hereby agree to keep all and every one off of said shore line, and allow no boats or fishing thereon or therefrom. But said first party reserves 'the right to fish himself, and with one other person at such times and places as the rules of the organization which controls what is known as the Bass Lake property on the south side of the lake, authorize the members of said organization to fish. And said party of the first part agrees not to trap or fish on said lake or allow any one entering from his land, or with him, to trap or fish in any way in said lake, except in the manner and time set forth in said rules.”

This lease therefore contains a reservation or an exception of free fishery, as it is termed and known in law, to Hazen, during the term of the lease.

A several fishery is that which belongs to the party who owns both the land and the water rights in non-navigable streams. A free fishery arises when one who thus owns in severalty, conveys an interest in the property, or in the right to fish, to another. Therefore this reservation on the part of Hazen reserved to him a right of free fishery, or fishery in common with the lessees, under the conditions named. A free fishery is a profit in the land, a right to take a part of its products, to-wit: the fish, and therefore is termed a “profit a prendre,” and as such it is inheritable and assignable as a fee, although the owner of the free fishery may own no part of the land itself. Washburn on Easements, (star paging) 416; Boatman v. Lasley, 23 Ohio St. 614, 618. Whether however a particular free fishery is inheritable or assignable, may depend upon the nature and effect of the terms of its creation; if the instrument creating it shov s a contrary intention, effect must be given to that intention, just as we give effect to the intention of. parties in any other instrument, or in regard to any other Subject-matter. A contract in writing of this character must be determined by the same rules of law as any other contract, and the leading rule is to ascertain from it the intention of the parties, and thus arrive at its effect.

When we look to this reservation of free fishery in the lessor, Hazen, it is so worded and so restricted in its terms that we think there is in this instance no right of inheritance or assignability. That it is a mere personal right a right in gross. It is expressly limited to himself, and one other. It is not like ordinary reservations, general in terms, but it is expressly limitedjto himself with one other — limiting the number of others, whojj with himself shall participate in it; and in addition thereto, he agrees to keep every other person off of the lake, or off of the strip bordering upon it, either to boat or to fish,during the term named. So it it impossible for us to conceive that this right of free fishery,thus retained by Hazen for himself and one other, -limited to a period of ten years, contains within it inherently the right of .transmission by assignment or by inheritance; and therefore Hazen-, when he conveyed to the defendants, could not convey to them, and did not convey to them, his right of free fishery in the waters covering that portion of the land, during the existence of the lease.

The Kellogg lease was for ninety-nine years, executed by Mr. and Mrs. Kellogg, and by which they -leased to Downing & Smith a strip of land two rods wide, above low water mark, the full length of the farm, and all the land covered by the waters of the lake owned by Mrs. Kellogg. She owned all of the lake north of Miller’s north line and east of the lot lines running north and south through the center of the lake, and the lands to the east and north, embracing the inlet to the lake.

This lease provided that the lessees were to hold the premises named for the period named, “upon the terms and conditions hereinafter mentioned.’-’ And thereafter it provided that, “the party of the second part to hold said lands for their protection in the improvements and use of said pond. It is further agreed by and between the parties to this lease, that the said parties of the first part, their heirs and assigns, shall have the right and privilege to cultivate or use said strip of land for agricultural purposes, and that they have the right to pass over to and from said pond at will, and to have the privilege to fish with hook and line in the waters over the land leased.’’

This lease contains three reservations:

First — The use of the strip of land for agricultural purposes.

Second — The use of the strip as a way to and from the pond.

Third' — -The right to fish with hook and line,in the waters over the land leased.

The defendants claim that each of these rights is incident to the fee which remained in Kellogg, and a part and parcel of the land itself, and therefore, although in the form of a reservation, is properly and strictly an exception in the grant, a part of the realty not conveyed. That having retained the fee, the Kelloggs could not properly have an easement in their own lands. That they leased the lands, but did not give exclusive possession or the exclusive use, and having thus retained these interests, might sell the whole or part, as they saw proper, to as many parties.

To call these exceptions instead of reservations is simply talking about names. A reservation and an exception are substantially the same thing. A reservation or an exception is a deduction of something from the thing that is granted, narrowing and limiting that which otherwise would pass under the general words of the grant.

The rights in question here are such as could not be exercised by the lessors, as owners of the fee, unless reserved.

The general'terms of the grant otherwise would have excluded them from exercising such rights.

They could not exercise them therefore in right of ownership of the feé, but only in the right of being thus reserved.

The question is, not how were these rights technically created, whether by reservation or exception, but what are the nature and incidents of these rights?

The Kelloggs, by the general words of the lease, granted unlimited possession and use of the lands for ninety-nine years; but by subsequent words they narrowed such grant, by reserving certain rights to such possession and use.

One reservation is as to the use of the strip for agricultural purposes, by whigh the lessors retained a qualified joint possession, bfit for such purposes only; in regard to which there is no question in this case, save as it affects the second reservation. It also serves to show the peculiar character of the lease.

The second reservation is as to the right of passage over the strip conveyed, to and from the pond, from their contiguous lands. This has no connection - whatever with the first reservation.

It created a right of passage — -a way or privilege for the grantors, of which, if it were not for these reservations,they would otherwise be barred, to reach the pond from their contiguous lands, and as such it becomes not only appurtenant to such other lands during the continuance of the lease, but an incident to the right of free fishery, reserved to them in the pond,and as such it would pass to their heirs or assigns.

It is immaterial what it is called, whether we call it a right of way, a privilege, a servitude, a right of passage, or an easement. The parties evidently intended it should be at least an appurtenance to the contiguous lands of the Kelloggs. Therefore the right would pass in a conveyance of those lands, because it is an appurtenance, and because it is expressly reserved not only to themselves, but to their heirs and assigns. The right is therefore appurtenant to every foot of the land, and becomes vested in tne purchaser of every parcel into which the land may ‘be divided, not inconsistent with the terms of the lease.

Is this right of way over the strip leased to the plaintiff, restricted to a definite single way to Kelloggs and their assignees, or may they pass and re-pass at will over any and all parts of such strips?

Ordinarily, private rights of way are thus restricted, but this is not, as is evident, we think, from the first reservation.

In these reservations, the rights are reserved to use and cultivate the strip for agricultural purposes, and to pass over to and from the pond at will. Substantially this leaves the right of possession in the lessors, or at the least a joint right of possession with the lessees, and being thus in possession, with the right to use and cultivate every part of the land, it follows that they have the right to go upon, and pass and re-pass over it in all directions at will, without in any way interfering with, or trespassing upon, the rights of property of the lessees. All that the lessees evidently intended to, or did, obtain by the lease of the strip, was the right to bar strangers from passing over the land to the lake, and from using its margin.

The defendants, therefore, as assignees of Kellogg, to a parcel of the Kellogg land, including a. portion of the strip leased to Downing & Smith at the inlet, have the right to go upon and over such portion of such strip in all directions at pleasure, to reach the lake,- unless otherwise restrained. They have no right to use it, however, as a way to other lands or parts of the lake. They cannot, for instance, use it to"reach the lake with the intention of going to some place beyond that part conveyed to them by Kelloggs immediate grantee, Russell.

A right of way appurtenant to one piece of land, cannot be used to pass to and from another piece of land, not embraced in the grant.

“The proposition is universally true, that if one acquires a right of way to one lot or parcel of land, he cannot use it to pain access to that parcel and thence over his own land to other lands belonging to him. So far as he should use it for access to, or accommodation to other parcels than the specific one to which it is so appurtenant, he would be a trespasser.’' W. on E., 60, (star paging). Stearns v. Mullen, 4 Gray 151; Mendall v. Delano, 7 Metcalf 176; Goddard on Easements, 324. It is different in regard to a way to and from a highway. Goddard on Easments, 328.

The third reservation in this lease is the right to fish, reserved to the lessors, their heirs and assigns, with hook and line, over the waters covering the land leased; a right of free fishery, but in this instance general in its terms,as well as connected with the fee of the'land, and therefore inheritable and assignable.

The extent of the right of sub-division and sale of the lands in parcels, and of such free fishery, by the Kelloggs remains to be considered; Such right is not restriced in the contract; but is there anything in the law applicable to such a lease which restricts the right of the Kelloggs to create an indefinite number of assign's — to divide and parcel out the land into small strips, and the free fishery into small interests, so as to include an innumerable number of people? That is the important question as to this lease.

As I have said, contracts of this kind are to be construed and governed in the same way as all other written contracts. The whole and every part is to be considered in order to ascertain what the intention of the parties was. While there is a right reserved to the' Kelloggs', their heirs and assigns, to pass over this strip to and from the pond at will, and to fish with hook and line in the waters covering the lands thus leased, the other parts of the lease put a limitation upon the right of assignment, clearly and evidently. One of its conditions is: “The party of the second part to hold said land for their protection in the improvements and use of said pond.” What was referred to in this provision ? Downing & Smith had just purchased the island, and had established or were about to establish a hotel thereon, for a summer resort; for boating, fishing and pleasure upon the lake. The principal value and chief attraction of such resort would be the lake and its privileges. They were endeavoring to obtain all the interests of the various owners in the lake, so as to have control of it, to keep it for the use of their guests, and to prevent rivalry. They obtained the deed less than a month before this, for the twenty acres. In the light of these facts this provision of the lease shows substantially what the plaintiff alleges to be true, that when Downing & Smith obtained this lease from the Kelloggs, they did it with the intention and the purpose of establishing this summer resort upon the lake, and that the Kelloggs knew it, and made this lease for ninety-nine years to Downing & Smith for the express purpose of enabling them to protect themselves in such improvements, and in the use and enjoyment of the lake, for the purposes aforesaid, in connection therewith. This has a direct bearing upon the question of how many parties may the Kelloggs assign to; how many interests may they create? They may create, if the right of assignment is unlimited, enough adverse interests to submerge the plaintiff and their rights in the lake, and defeat and destroy the very object and purpose of this grant.

“The heirs of an owner of real estate, which was bounded in part by a sea beach, divided the estate by deed, and assigned to some of them parcels of land, bounded by the beach, and to others different parcels. The deeds assigning the latter parcels granted the privilege of getting sea weed from the beach below the lands granted by the deeds of the former parcels.

It was held that this was a grant of an incorporeal hereditament appurtenant to the land to which it was annexed, and not a right in gross; and that it could not be severed and sold separate from the land, and that a sale of the right to a stranger, would either be void, or would extinguish the right.” Phillips v. Rhodes, 7 Met. 322.

The defendant in that case claimed through Mary Ann Balche, a descendant of one of these heirs, as purchaser or lessee; and on page 324 it is said in the opinion; “She can lease her share of the privilege while she remains an owner in common of the particular estate. If it is said that the privilege may in this manner be sub-divided,jmd the same evils follow as would or might follow from the sale of the privilege independent of the land to which it is appurtenant,yet it must be rememered that its sub-division can only be such as the piece of land to which it is attached^is subject to.”

That is, as we understand it, the right of sub-division and sale, with regard to a transfer of the easement, is limited by the character of the estate; that if it is farm land, the parcels into which it is sub-divided must retain the same character and use, to be entitled to a participation in its easement.

In summing up the result of the authorities on the right of assignment, Goddard on Easements, 339, says: ‘‘The result of these authorities appears therefore, to be, that if a dominant tenement is divided between two or more persons, a right of way appurtenant thereto becomes appurtenant to each of the severed portions, if such distribution of the easement is not at variance with the actual or presumed grant, under which the right has been acquired.” In Washburn on Easements, on pages 183 and 184,star paging, it is said among other things:” The above case has been referred to thus specially, partly to illustrate the application of the doctrine of Kirkham against Sharpe, and partly to suggest a limitation to the proposition elsewhere made, that where an easement becomes appurtenant to an estate, it remains appurtenant to every part of it into which it may be divided, which, though generally true, is often limited by the nature of the easement, and the condition of the estate to which it is attached.”

This may be further illustrated by the case put by Den-man, Chief Justice, in giving an opinion in Allen v. Gomme, Goddard on Easements, ante, of the grant of a small parcel of land, part of a large field devoted to the culture of crops, for the purpose of a yard to the house of the grantee. “If a way were'reserved across the same to the field, the grantor could not sell this field into house lots, and thereby turn this way into one for the accomodation of a town or village.”

The grant as actually intended, the nature of the easement reserved, and the condition of the estate to which it is attached, are all to be taken into consideration in determining the extent of the right of distribution of the easement or right involved. What is the actual grant and its objects ?

If it is for the express purpose of keeping strangers away from such a lake, so that the owner of a summer resort may have the exclusive jise thereof, limited only by the reservations to the owners of the land upon the margin to fish with hook and line — if that is the object, has the party who reserves to himself, his heirs and assigns, the right to fish with hook and line, the right to substantially destroy the effect of his conveyance; to overrun the summer' resort and destroy it; to render it either of no value, or of materially less value? This right of sub-division and assignment, under such circumstances, must not only be restricted to a purpose of the same nature as the dominant estate; but it must be reasonable with reference to the rights that the lessees have acquired, and the purpose of the lease as known to, and understood by, the lessors. If the lessors have the right to divide this easement and free fishery into sixty parts, what is to prevent each owner of such parts into likewise dividing it into sixty interests? Is there to be no check to such distribution?

The Keloggs conveyed all their land to Russell, subject to the lease held by plaintiff. Russell conveyed to Eldridge one undivided half interest in the land covered by the waters of the pond, and in twenty-six acres of l.and adjoining, subject to said lease, including but 150 feet out of this long stretch of margin owned by the Kelloggs, and included in said lease. Thereupon Eldridge conveyed 12-30 of his own interest to Coe, and 1-30 thereof to each of seventeen other parties, defendants, for whom he in fact purchased, and with intent upon the part of all to defeat the purpose of those from whom they derive title, in the making of said lease.

If sixty are to have these privileges to every one hundred and fifty feet of this two-rod wide strip of lake border, it will turn it into a city with an proprietor to every two and. one-half feet of frontage.

We think it was unreasonable in this instance, to sub-divide these reserved rights into sixty parts.

These defendants are bound by the legal effect of this lease as herein declared. It is in their chain of title. We think that so far as such title attempts to convey any right to these defendants to cross said strip and go upon the waters of the pond to fish with hook and line, as the Kelloggs might do, it is void, as against the plaintiff, and that the injunction prayed for maybe granted in the respects indicated. That is, it can be granted only in the various tracts for the length of time that the plaintiff’s leases extend, for instance in the Orville Smith tract, and in the F. JB. Hazen tract, for ten years from the period from which it accrued, and all of the defendants except F. B. Hazen may be restrained from entering the pond for boating, hunting, trapping, fishing or for pleasure.

They may exercise the right of crossing and re-crosssing this strip to reach the pond itself, but they must not enter upon the waters of the pond.

As riparian proprietors, it is possible they have the right to ihe-use of the water for domestic purposes; and for that purpose, possibly, the right of going to the margin of thé waters, and with that matter we do not wish to interfere!; but they have no right to go to the lake for the purpose of fishing, or boating, or entering upon the waters of the lake-for any purpose, and the injunction may be made accordingly, at the costs of the defendants.

Norris & Taylor, and J.°B. Bostioick, for plaintiff.

Metcalf & King, for defendants.