text:
    OMITTED TAXES —PURPOSE OF THE STATUTE AS TO CHANGE OF OWNERSHIP.
    [Circuit Court of Hamilton. County.]
    Lea M. Shields v. John H. Gibson, Treasurer.
    Decided, February 25, 1903.

      Taxation — Section 2803 — Provision of 'With Reference to Change of Ownership — Title by Devise — Omitted Taxes a Debt of the Decedent’s Estate.

    1. The purpose of the provision as to the change of ownership of real estate, found in Section 2803, is to protect a bona fide purchaser, who might rely on the tax duplicate as it appeared at the time of his purchase.
    2. A devisee of land has parted with nothing upon the faith of the record, but has become the owner by devise, subject to the payment of the debts of the testator. There is, therefore, no such change of ownership as will prevent a correction of errors in the tax duplicate by the county auditor, and omitted taxes based upon such corrections become a specific lien upon the real estate so devised.
    Jelke, J.; Swing, J., and Gieeen, J., concur.
   Tbe facts of this case are presented by findings made by the court below, and are as follows:

“1. In 1894, Margaret A. Shields owned two lots in different subdivisions in the twenty-eighth ward of Cincinnati, Hamilton county, Ohio, about one mile apart, described as follows:
“ fLot 21 — 25 feet McMillan’s, of four-acre tract.
Tt. lot 21, McMillan’s, of eighty-acre tract.’
“2. In 1894 or 1895, she bought an old house from Benjamin Evans, which was then valued on Evans property for taxation at $1,750, >as distinct from.the lot on which it stood, and moved it upon lot 21 of McMillan’s four-acre tract, erecting it there upon a new cellar and foundation and built a basement story under it, and converted it into an apartment house.
“3. In 1895 the annual assessor of the twenty-eighth ward of Cincinnati, having examined said house 'and appraised the same at $3,500, made an official report as to new structures in that ward to the county auditor, under the provisions of Section 2753, Revised Statutes, in the following words:
“ ‘In tbe twenty-eighth, ward the following is a correct report of the kind of structure, and the value of which, in my opinion, has been added to the lots or tract of land by the erection thereof, on the day preceding the second Monday of April, 1895.
“ ‘Where the building was reported in a previous year as unfinished, the amount here returned as total value and the amount then returned is deducted. Where an old building has been removed in whole or in part from the ground now occupied by a new structure, the part so removed, has been by me deducted in making the assessment, and the difference is the amount here reported.
“‘Daniel Koch, Assessor,
“ ‘May 6, 1895. “ ‘416 Shillito Street.
“ ‘Shields, Margaret A., pt. 21 McMillan, of eighty-acre tract, thre’e-story frame, total value of new structure, $3,500, amount to be added to 1895 duplicate for new structure, $3,500. Finished.’
“Which entry was intended to apply to said house, and said addition was intended to be made to the lot on which said house was situated.
“4. The board of supervisors, sitting as an annual board of equalization, considered the report of ‘all tbe annual assessors and made no change in the valuation as so reported by the said assessor of the twenty-eighth ward, but allowed their action, being as shown on page 206 o>f their minute, a transcript of which is attached hereto, marked ‘A.’
“5. The county auditor entered the $3,500 as an addition to the tax valuation as reported by the 'assessor against the property standing in the name of Margaret A. Shieidis on duplicate as pt. 21 McMillan’s eighty-acre tract.
“6. Margaret A. Shields died August 9, 1900, leaving a will which was probated August 24, 1900, under which Lea M. Shields was appointed executrix and qualified as such, which will directed the payment of all just- debts, and devised one-half of the residue of her estate, real and personal, to her daughter, Lea, plaintiff herein, and one-fourth to her daughter, Mary, and one-eighth to her son, William, and one-eighth to her' son, Lawrence Shields. On March 21, 1901, petition was filed in case No. 6482, Probate Court, Hamilton County, Ohio, by Lfeá Shields, as executrix of the estate of Margaret A. Shields, deceased, .against said Lea M. Shields, Mary C. Shields, Lawrence Shields and William A. Shields and his wife, and Alexander M. Shields and his wife, to sell tbe real estate ¿escribed in the petition to pay the debts of said Margaret A. Shields, deceased. And proceedings were had thereunder, whereby said premises were sold for $3,600 to Moses Goldsmith at private sale of June 22, 1901, and said sale was approved and 'confirmed by the court June 24, 1901, and s'aid executrix ordered to execute a deed, therefor, which deed was duly executed June 24, 1901, and recorded June 25, 1901, in Deed Book 862, page 213. On distribution of proceeds of said sale no order was made by said, court for any payment of taxes out of same; county treasurer was not a party to said cause.
“On April 17, 1901, Mary C. Shields and Lawrence' Shields, brother and sister of said Lea M. Shields, both unmarried, executed a quit-claim deed to said Lea M. Shields of their interest in the real estate described in the petition, as did William A. Shields and wife, which deeds were recorded June 25, 1901, in Deed Book 860, page 502, and Deed Book 861, page 311, respectively.
“And on June 24, 1901, said Lea M. Shields individually executed a quit-claim deed to Moses Ooldsmith, in consideration of $1 and other considerations, of said real estate described in the petition, in which was contained the f ollowing condition:
“But this conveyance is hereby made subject to a vendor’s lien in favor of said grantor herein for the sum of $506.63 (five hundred and six and 63-100 dollars), which said amount has been retained out of the purchase money by said grantee for the payment of certain taxes added by the auditor of Hamilton county, Ohio, being $461.16 back taxes and $45.47 taxes added payable in December, 1900, the legality of which said additions is- by said -grantor disputed, -and said grantor agrees with said grantee that she will at once institute proceedings in court to test the legality -of said additions and to remove them from the property herein idfeseribed either in- whole or in part and to prosecute proceedings with due diligence, and said grantee agrees to pay said amount in his hands to said grantor whenever said, tax lien is removed from said title by payment -or otherwise.’
“7. J. D. Barker -having -bought from Margaret A. Shields the real estate- 'described as part of lot 21 of eighty-acre tract, on January 14, 1898, redeemed said property from the forfeited list by paying the delinquent taxes, including the taxes charged on the $3,500, and -on November 5, 1900, made claim for a refunder of taxes on the excess valuation of $3,500, ¡as said lot so- redeemed was a vacant lot 'and said charge had been erroneously made upon said part lot 21 of McMillan’s eighty-acre tract, when it should have been charged against lot 21 McMillan’s four-acre tract. The auditor having investigated, said claim, a refunder was allowed on November 17, 1900, for $461.16, and on November 23, 1900, a remit given for taxes -on said $3,500 excess-for the then current year, amounting to $90.92, making in all $552.08. Shortly after-wards, the -auditor not knowing that Margaret A. Shields was dead, directed -a letter to her notifying her to appear to show cause why -an addition should not be made to the tax valuation of lot 21, McMillan’s four-acre tract, of the $3*500 valuation for the ■omitted building upon said lot which had been erroneously charged to the lot sold to said Parker.' And on or about December 13, 1900, not hearing from Margaret A. Shields, 'and the letter mailed to her address not having been'returned, although it had his return ■card upon the envelope, the auditor made said addition 'and charged up the taxes for said omitted building -against said lot 21 of McMillan’s four-acre tract, which had been theretofore -charged on p-t. lot 21 of McMillan’s eighty-acre tract, in the following entry upon the subsequent additions on the tax duplicate for the year 1900, then in the hands of the auditor and treasurer:
“ ‘Shields, Margaret A., lot 21 — 25 feet McMillan’s, of four-acre -tract, house, $3,500; taxes due December 20, 1900, $45,465; taxes ■due June 20, 1901, $45.465; $461.16. Add to regular taxes 1895, 1896, 1897, 1898 and 1899: No- pen.
“ ‘Was erroneously charged to J. D. Parker.’ ”

Section 2803, Revised Statutes, provides:

“In all cases where -any county auditor shall discover, or have his attention -called to the fact, that any assessor in any previous year shall have omitted to return, or shall in any future year omit to return any lands, town lots, or any improvements, structures o-r fixtures thereon, subject to taxation, situated within his county, ■or if any such property has escaped taxation by reason of any error ■of said -auditor, it shall be the duty of said auditor to ascertain the value thereof for taxation, -as near as may be, and to enter ■said lands, town 1-ots or improvements, upon the duplicate of the county, then in the hands of the county treasurer of such county, and to add to the taxes of the current year the simple taxes of •each and every preceding year in which such property shall have ■escaped taxation, as far back -as the next preceding decennial appraisement and equalization of real estate in his county, unless in the meantime such property shall have changed ownership, in which case only the taxes chargeable since the last change of ownership shall he added, or the owner of such property may, if he desires, pay the amount of such taxes into the county treasury, ■on the order of said auditor.”

Under this provision of the statutes the auditor of the county was authorized to enter upon the duplicate of the county the improvement erroneously charged to another lot, unless title by devise is such a change ef ownership as is contemplated in such section of the statutes.

Counsel for plaintiff relies upon the case of Lohaus v. Hagerty, 7 C. C., p. 408, and on the strength of this case the court below decided against the county. In that case a tax sale was held to be within the provisions of Section 2803, Revised Statutes, so as to prevent the ““Dow tax,” which had erroneously been charged to another lot, from subsequently being charged against the lot sold.

There are two points of essential difference between that case and the case at bar: First, money had been expended by the tax purchaser upon the faith of the duplicate; and second, the ““Dow tax” is a special -tax in no way based upon the valuation of the property and there would be nothing on the records in regard thereto to put a purchaser on notice.

In the case of Scott v. Raine, 25 Bull., 154, in the Superior Court of Cincinnati, Judge Hunt, on page 188, said:

““The term “owner* in Sections 1040 and 2803 can not be enlarged more than to include such a Iona fide purchaser of the property as estops the state from the assertion of a claim against the property for taxes, which at the time of the purchase were not on the duplicate and of which the purchaser could not be advised. There can be no good reason why the heirs of a decedent or the devisees of a testator, or the d'onee by deed, of gift, or the lessee for a term of years, should be exempted from the taxes legally due upon the land which but for this change of ownership the state would have been able to collect. They have not parted with anything of value on the faith of the condition of the duplicate, which is the very reason of the law itself. No such construction can be permitted. It would seem that the decision in Davis v. Cincinnati, 36 Ohio St., 24, is conclusive as to what the term “owner* means, in so far as taxes and assessments are 'concerned, and assuming that Davis was the owner of a lease for a term of years with all the obligations to pay taxes and assessments between him and the lessee, nevertheless the term “owner* in the statute referring to assessments — and certainly by fair implication referring to taxes — means owner in fee. Change of ownership therefore means a change in ownership in fee, by a bona fide purchase, in order to estop the state under Sections 1040 and 2803 from the collection of taxes, which but for those sections would otherwise be collected.**

We think this is sound and applicable to this case.

The case of Heave Building Co. v. Brooks; 6 Circ. Dec., 280 is a case of change of ownership for value, and that this was of importance in the minds of the court is shown on page 153:

W. M. Ampt, for plaintiff.

Wilson> Gosgrave & Jones, contra.

“The six grantors in said deed owned and held shares in the capital stock of said corporation, some in proportion and some in excess of their respective interests in the lot at the time of the conveyance. Said trustees, as such, did not at any time hold ox own any shares of said stock. Persons other than those named, who never had any interest in any of said land, held and owned shares of said stock from the organization of the corporation np to this time.”

The Supreme Court said in ease of Markle v. Newton, 64 Ohio St., 493:

“The duplicate would have the effect of notice by public record, and a person thereafter acquiring the property could not claim the protection of a bona fide purchaser. What the rights of a purchaser may be, against the state, must depend upon the facts of his case.”

In our opinion the purpose of this provision is to. protect a bona, fide purchaser wlm might rely on the duplicate as it appeared at the time of his purchase.

The devisee has parted with nothing upon the faith of the record, but has become the owner of the lot by devise, subject to’ the payment of the debts of. the testator, and the omitted taxes are in the nature of a debt entitled to a specific lien.

Petition dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    ADJUDICATA — DEFECTIVE PLEADING.
    [Circuit Court of Lucas County.]
    Edward T. Rafferty v. The Toledo Traction Company.
    Decided, October 3, 1903.

      Cause of Action — Not Rendered Adjudicata — By Judgment for Defendant by Reason of Defective Petition — Procedure During Trial.

    1. A cause of action does not become res adjudicata by reason of tbe fact that a former suit, involving tbe same subject matter was dismissed on tbe grounds that tbe petition did not state facts sufficient to constitute a cause of action.

      2.' A plaintiff in sucb a case stands in tbe position of one to whose petition a demurrer bas been sustained; and tbe fact that no demurrer was interposed, but instead' a motion to exclude tbe plaintiff’s evidence and direct a verdict for tbe defendant, wbicb was granted and judgment rendered on sucb verdict, does not change the position of tbe plaintiff nor render bis suit res adjudicata.

    Hull, J.; Parker, J., and Haynes, J., concur.
   The question in this case is one of res judicata — whether there was a former adjudication between the same parties, upon the same subject matter, that would bar Rafferty from beginning and maintaining his action against the traction company.

This former adjudication was set up by the traction company in its answer, and to that answer a reply was filed by the plaintiff denying, that there had been a former adjudication of the cause of action as it is set forth in his petition in this case, and setting forth in debail in his reply the facts as he claimed them to be in regard to the former ease and former judgment. A demurrer was filed to this reply. The demurrer of the traction company was sustained by the court of common pleas on the ground that the matter pleaded in the reply showed that there had been a former adjudication of the plaintiff’s claim, and the petition was dismissed and judgment entered in favor of the traction company, and it is to this judgment that error is prosecuted in this court. •

■Some time prior to the commencement of this action, perhaps about .two years, the plaintiff began an action against the traction eompany, alleging inRis petition that he was in the employ of the traction company and was injured by reason of its- negligence. It is conceded that the cause of action — the ground of this plaintiff’s complaint against the traction company — is the same in this case as it was in the first case, but the claim is that it was pleaded differently in this last case, and that certain objections which were made to the petition in the former case are obviated -in the pleadings in this case and that, therefore, the judgment in the former case is mot a bar.

The first case was decided by the trial court upon an objection to any evidence being offered upon the trial, on the ground that the petition did not state a cause of action. This motion was sustained by the court :and the jury directed to return a verdict in favor of the defendant and judgment entered on the verdict. Error was prosecuted to this judgment in the circuit court and it was affirmed, and -the case was then taken to the Supreme Court and tire judgment of both the common pleas and of the circuit court wias affirmed. While the case was pending in the Supreme Court plaintiff began this second action, alleging his grievance, and especially making allegations' as t.Q his own 'conduct upon the occasion of his injury differing from the .allegations in the first petition, and he claims that the former judgment is not a bar.

Plaintiff claimed in his petition in the first case, as he does in this one, that he was in the employ of the traction company at the time of his injury, in this city, working on a floor some twenty-two feet from the ground, in the night; there was a hole in the floor at some little distance from where he was working; that he knew of this, hole and had seen it' two or three weeks before his injury, and at that time it was surrounded by barrels and other barricades and a light was near it; that on the night in question it was necessary for the plaintiff to go to the rear of the room to answer a call of nature. Not seeing the barrels or the lights, he did not think of the hole, fell through and was seriously injured. These were, in substance, his allegations in the first petition on the subject of his injury. As alleged in this reply to which the demurrer was sustained, when the case came on for trial before the court of common pleas, the traction company objected to any evidence being offered, for the reason that the petition did not state a cause of action, and, 'as the reply alleges, the court sustained this objeetion upon the ground that the petition showed that the plaintiff knew of this hole in the floor and that his allegations were not sufficient to excuse him for falling info it, with the knowledge he bad that the hole was there. The court held, the reply avers, that the allegation was not sufficient to excuse plaintiff within the rule of the case of Norman v. Coal Company, in 49 O. S., 598, and, as stated in the reply, the court, upon this ground, directed the jury to return a verdict for defendant, which was accordingly done; a motion for a new trial was overruled and judgment entered. After the judgment of affirmance in the circuit court plaintiff began this new action. He claims that the judgment of the court upon the first trial was not upon the merits, and, therefore, not a bar; that it is within Section 4991, Revised Statutes, which provides;

“If, in an action commenced, or attempted to be commenced, in due time a judgment for the plaintiff be reversed, or if the plaintiff fail otherwise than upon the merits, and the time limited for such action has, at the date of such reversal or failure, expired, the plaintiff, or, if he die and the cause of action survive, his representatives may commence a new action within one year after such date.”

Plaintiff claims that he had not failed upon the merits of his claim against the traction company; that he had failed only by reason of a defect in his petition; that the cause of action which he has has never been tried or submitted to any court, and that, therefore, the way is still open for Mm .to 'begin another action under this section, that the former judgment is not res judicata as to his claim. On the other hand, the traction company claims that this is the cause of action, that the plaintiff set up in his former petition, and that if he failed to prosecute that upon a proper petition, it was his own fault; that he has had his day 4n court and this judgment had been entered against Mm, and that he is barred. As I have said, plaintiff took his case to the circuit court and that court affirmed the judgment of the common pleas, but put it on .another .ground. According to the opinion — which is reported in the 19th Circuit Court Reports, 288, this court held that the common pleas court was wrong in holding that the allegations of the petition were not sufficient to avoid the admitted fact that he had’knowledge of this hole, hut held that the judgment of the common pleas court was right for the reason that -there was no allegation in the petition showing that the bach part of this room was a proper place for plaintiff to go to answer a -call of nature, or that it was the usual and customary place for the men employed there -to go> and that, therefore, the petition was faulty in that it did not show 'that he was in the performance of any duty or that he was where he had any business to be at the time he was injured, and, on this ground, the circuit court held that the petition was defective and affirmed the judgment of the court of common pleas. The Supreme Count affirmed, without report, both judgments.

When counsel for Rafferty drew his second petition, he inserted in it the 'omitted allegations that the circuit -court held were neees- j sary, to-wit, that the place where he went in the night was thej proper and usual place for him to go for that purpose; that it was' the place where the men there employed did go for that purpose, and thereby cured the defect- -that- the circuit court found in the petition. Then the traction company filed the answer in which it set up the former adjudication, and Rafferty filed the reply containing these allegations and showing the facts to be substantially as I have stated. The court of common pleas held, that notwithstanding this difference in the petition, this addition or amendment to it, that the former .judgment was a bar, the cause of action being the same.

It was argued here that if plaintiff failed to draw his first petition so as to show that he was himself not guilty of contributory negligence, it was his own fault, or that of his counsel, and he could not now have his cause of action passed upon again in the form of a new case; that his cause of action against the traction company was settled, adjudicated and ended.

Whether a former judgment is res judicata is a question which has -been often discussed by the courts; and in determining the question it is held generally that oral evidence may-be -offered to determine whether on the former trial the same issues were presented and determined 'as are sought to be determined and presented in the second case; that witnesses may be called and the charge of the court, if it is a jury trial, may be shown by oral evidence, or the opinion of the -court, if it is an error case, may be shown and oral or written evidence -offered as to that, to determine what the real question was that was decided either by the court or by the jury, and what issues were in fact settled by the judgment in the case. A judgment is final and res judicata as to all the issues that are settled and determined in the case; they can not be readjudicated between the same parties, and it is claimed by the defendant in error that that was the fact in this case.

In 41 O. S., 62 (Moore v. Dunn) this is found in the syllabus:

“In an action by M. against I)., a demurrer to the petition was sustained for want of a material averment therein, and M. failing to amend, judgment was given for D.
“M. afterward brought another action against D. upon the same cause of action, and in his petition supplied the material averment wanting in the petition in his first action.
"Held: That the judgment in the first action was not a bar to the cause of action alleged in the second one.”

This opinion was by Judge McCauley. The court, speaking through him, s'ay on page 63:

“The single question in this case is, whether or not a judgment for the defendant upon a petition which did not state facts sufficient to constitute a cause of action, is a bar to a future action between the same parties for the same cause. A judgment for the defendant given upon the facts stated in the petition is conclusive upon the plaintiff only as to the facts therein stated. If the facts alleged malee a cause of action, a judgment upon them is final between the parties. If the facts do not state a cause of action, a judgment upon them is not a judgment upon the merits of the case, and does not stand in the way of a future action for the same cause.” (Citing several authorities.)

Counsel for defendant in error urge, upon the authority of Covington & Cincinnati Bridge Co. v. Sargent, 27 O. S., 233, and other cases, that a second action can not -be maintained. These oases do not support this claim; they apply to a wholly different state of facts. In these cases sufficient facts were alleged in the first petition to make a cause of action, and the pases were heard upon their merits. Further along, on page 64 of this case, in the 41 O. S., Judge McCauley says:

“The merits of the ease having once been heard, the judgment was final; while a judgment for a defendant on demurrer to a petition which did not state a canee of action determined nothing, only thatihe facts alleged were not sufficient to constitute a cause of action. The determination, therefore, did not reach the merits of the case, and did not conclude the plaintiff in a future action in which sufficient facts were alleged.”

It is claimed by the plaintiff in error that he stands the same as though a demurrer to his petition had been sustained. But it is urged by the defendant in error, that in this- case a jury was sworn, and a trial had, and a verdict directed by the court, and a judgment entered upon the verdict after a motion for a new trial had been overruled, and that, .therefore, this can not be regarded as the same as the sustaining of a demurrer to a petition, but that it is a trial upon the merits in which the judgment is final. We are of the opinion that the contention of the plaintiff in error is right, and that the action of the court upon the first petition is to all intents and purposes the same, and should be treated as having the same effect as though a demurrer to the petition had been sustained on tbe ground tbat it did not state a cause of action. The motion upon the triad was to direct a verdict for the reason that the petition did not state facts sufficient to constitute a cause of action. This is an objection which may be made at any stage of a case; a demurrer may be filed as soon .as a petition is filed; or, if counsel deem it tbe better practice, be may wait until the case is called for trial; or be may wait until after the jury is sworn; or, perhaps, be may wait until after judgment is taken. Unless tbe court gives leave to amend, tbe fact that the petition is insufficient, tbat there are not sufficient facts stated, may be taken advantage of at any time, but whether it be by demurrer or by motion to direct a verdict, the judgment is .asked upon the same ground —that there are not sufficient facts alleged in the petition; that plaintiff has not a cause of 'action stated upon which a judgment may rest. The^faet that the jury was sworn, and a verdict directed as in this case, does not change the situation; the plaintiff has not failed upon the merits. He has not had an opportunity to present to the court, or to the jury, his cause of action or his claim which he asserts he has against the company by reason of its alleged negligence; he has been prevented from that by the court upon the ground that his petition was faulty and defective in that it showed that Ms conduct was such upon the occasion of Ms injury’ that he could not recover, and the court has determined this fact and this only — that his former petition did not state a cause of action, and as to that fact the judgment is res judicata, and would bar him from raising that question again; 'but the courts have not determined that his claim as stated in this petition does not constitute a cause of action, and it is conceded that this petition does state a cause of action. He has cured in this petition the defects which were pointed out by the court in Ms former petition, and, in our judgment, he is not barred by the former judgment.

The case already cited (41 O. S., 62), I think is sufficient to decide this case, and it has never been overruled or criticized by the Supreme Court. There are decisions of other states that may be cited to sustain this doctrine.

In 5 Pa. St. (Carmong v. Hoober), the court say, on page 307 of the opinion:

“On the 'contrary, it has been held as an acknowledged principle, that, when it can be gathered from the record the merits of the controversy were not passed upon in the first action, but the determination proceeded upon some technical objection not affecting the plaintiff’s ultimate right to sue, the first judgment will constitute no bar to the second sMt.”

In 100 Mass., 412 (Foster et al v. Busteed)., the Supreme Court of Massachusetts say:

“The doctrine of res judicata is plain and intelligible, and amounts simply to this, that a cause of action once finally determined, without appeal, between the parties, on the merits, by any competent tribunal, can not afterwards be litigated by new proceedings, either before the same or any other tribunal. But no such effect is attributable to a decree dismissing a bill for want of jurisdiction, failure of prosecution, want of parties, or any other cause not involving the essential merits of the controversy.”

In the 11th Circuit Court Reports, 163 (Board of Education v. Cosgrove), the Circuit Court of Hamilton County holds, in the syllabus:

“The form of action has' no bearing upon the right to plead res judicata, but the controlling question is whether the issues be the same in both cases, and on this question the court will go into evidence to find what issues were actually tried, if it does not appear by the record itself.”

Another case is found in the 62d Federal Reporter, 694 (City of North Muskegon v. Clark). The first paragraph of the syllabus is:

“Judgment rendered against a plaintiff on demurrer to his declaration, because it does not aver a fact essential to a recovery, is no bar to a second suit by him on the same cause of action, wherein the declaration, in stating the cause of action, avers the essential fact previously omitted.”

Judge Taft, who delivered the opinion, on page 696 says:

“If the demurrer is sustained, the decision of the court is one of law, namely, that on the facts stated in the declaration, the plaintiff is not entitled to recover, and, if judgment goes upon the demurrer, the only issue which has been finally determined between the parties is this one of law. Such a judgment only estops the plaintiff from raising, in a second suit, the same question of law-in the prosecution of the same cause of -action. It does not prevent him from prosecuting, a second time, the same cause of action, provided he can -and does allege, in his declaration, additional facts, so that its legal sufficiency to sustain a recovery does not depend -on the question of law upon which the demurrer in the first case turned.”

Judge Taft cites in support of this, 91 U. S., 526.

As averred in the reply, the court directed the jury to return a verdict in favor of .the defendant. It might be asked whether the court would not have had the power, if the petition was thus defective, to enter up judgment on motion against the plaintiff and dismiss the petition without submitting the question to the jury at fall. In our judgment, the court would have this power, and that submitting the case to the jury by directing a verdict for defendant neither adds to nor takes away from the force and effect of the judgment. It was the judgment of the court that the petition did not state facts sufficient to constitute -a cause of action, and the court might as well have entered judgment itself upon the pleadings as to direct the jury to return a verdict and then enter up judgment. We are clear, after examining this case very carefully, that the former judgment was not a bar; that whether Rafferty’s cause of action is meritorious or not, or whether he has a valid cause of action against defendant, has not been decided, and in our opinion, the court of common pleas erred in sustaining the demurrer to the reply.

O. 8. Brumback, for plaintiff in error.

Smith & Baker, for defendant in error.

For these reasons the judgment of the court of common pleas will 'be reversed and the cause remanded with instructions to the court of common pleas to overrule the demurrer to the reply.


text:
    COSTS IN CASES SETTLED AFTER. SUIT IS BROUGHT.
    [Circuit Court of Summit County.]
    William H. Iler v. The Akron Fire Proof Construction Company.
    Decided, October 2, 1903.

      Costs — Should he Equitably Apportioned — Where Claim is Settled After Suit.

    "Where a ease is settled after suit brought, it is the duty of the court to apportion the costs between the parties as it may adjudge to’ be right and equitable. In such a case it is error to adjudge all the costs against the plaintiff, without an inquiry into the merits of plaintiff’s original claim.
    Winch, J.; Hale, J., and Marvin, J., concur.
   On appeal from a justice court William H. Iler filed his petition in the common pleas court against the Akron Fire Proof Construction Company, alleging that he had recovered a judgment against one Edward Aungst, and in the same action had garnisheed the construction company; that at the time.the latter was served with process it was indebted to Aungst, but that it failed to appear and answer as garnishee, and an order being issued on the garnishee to pay from the funds in; its hands the amount of the judgment and cost's against Aungst, it had refused to comply with the order, although it was indebted to Aungst at the time in said amount. The construction company answered, admitting that' it had been garnisheed, but denying all else. As a second defense, it averred that all matters between plaintiff and said Aungst had been fully settled. Plaintiff replied admitting that all matters had been settled between him and Aungst, but averring that said settlement was made after commencement of the action in the common pleas court against the garnishee.

The record, while it does not disclose that any written motion for judgment on the pleadings was filed, contains the following:

“This cause came on to be heard on the pleadings and the defendant’s motion for a judgment thereon. On consideration thereof the court' finds that the reply is no valid answer to the defendant’s answer, and said motion is granted. ' It is therefore considered that said defendant go hence without day and recover of said plaintiff his costs herein. Judgment is rendered against plaintiff for his costs herein.”

The case is in this court on petition in error to reverse said judgment for costs. It appearing from the reply that the cause of action against the. defendant was settled after suit brought, the case comes within the decision of this court in the case of The Standard Oil Company v. Valley Railway Company (7 C. C., 442), and Section 5351, Rev. Stat., applies, and it becomes the duty of the court to apportion the costs between the parties as it may adjudge to be right' and equitable. The matter of costs is a matter within the discretion of the court, and error in the exercise of his discretion is rarely ground for reversal, but in this case it appears that by an inadvertence the matter of costs was never submitted to the trial judge in such manner as to enable him to apportion them 'as' he might deem right and equitable. The only thing admitted by the pleadings was that the plaintiff’s claim against his judgment debtor had been satisfied. There still remained the issue between the parties as to coste, depending upon whether the conduct of the garnishee had made this action necessary.

The court should have inquired whether it was true that at the time plaintiff filed his petition he had an unsatisfied" judgment against Aungst; that the garnishee was then owing Aungst, and had refused to answer as' garnishee or obey the order to pay the money due Aungst to Ms 'attaoMng creditor. These facts being found in favor of the plaintiff he would be entitled to a judgment for costs in his favor. This conclusion is .not in conflict with the case of Friedlander v. Avondale (8 C. C., 608), where it was held:

“Where an action for relief is brought in the court of common pleas, and a decree rendered for the plaintiff, from which judgment an appeal is taken to the circuit court, and while the action is pending in such court, such action is voluntarily taken by the defendant as admits the justness of the original claim of the plaintiff, and satisfies such claim, the circuit court, on these facts being made to appear, will not hear said case to determine the question whether the claim of the plaintiff as originally asserted was well founded, for the purpose of deciding how the costs of the case should be paid; but will dismiss the action at the costs of the defendant.”

It is true the two cases are analogous. This case was brought before a justice of the peace, appealed to the common pleas court and settlement made wMle pending there. The Friedlander case was brought in the common pleas court, appealed to the circuit court and settlement made while pending in the latter court; but in the Friedlander case the justness of the original claim was admitted. That point is an issue in this case.

The judgment for coste is reversed, with instructions to the trial judge to determine the justness of the claim of plaintiff as it existed at the time he filed his petition, and to award the costs accordingly.


text:
    THE PROHIBITION OF A BOILER FACTORY NEAR A PENITENTIARY UNCONSTITUTIONAL.
    [Circuit Court of Franklin County.]
    Samuel Borger v. The State of Ohio.
    Decided, September 28, 1903.

      Police Power — In the Restriction of Objectionable Trades — To Certain Localities — Legislative Prohibition Justified, When — Act of May 12, 1902, Unconstitutional as to Boiler Factories and Penal Institutions.

    The act of May 12, 1902 (95 O. B., 592), in so far as it makes it an offense to erect or operate, within four hundred feet of the administration department of any state penal institution, any boiler factory which makes a loud noise, is unconstitutional, because the operation of such a factory is not a nuisance per se, and it does not appear that such restriction is imposed in the public as distinguished from private interest.
    Summers, J.; Sullivan, J., -and Wilson, J., eomfcur.
   It is not important to state the case in detail, or to notice many of 'tlhe questions argued by counsel.

By 'an act passed May 12, 1902 (95 O. L., 592), the General Assembly makes it an offense to erect or operate within four hundred feet of the administration department of any state penal institution any boiler factory which may make loud noises. It is admitted that the plaintiff in error erected and operated such a factory within four hundred feet of the administration building of the Ohio State Penitentiary, and that he purchased the land on which the factory is located for that purpose; that if the premises can not be so used they are depreciated $10,000, and that the members of the General Assembly had knowledge before the passage of the act of the fact that, the purchase had been made for that purpose. It is said in argument that the managers of the penitentiary wanted the ground for that institution and procured the passage of the act to aid them in getting it. The plaintiff in error was found guilty in the police court of a violation of this statute and fined. On error the court of common pleas affirmed it and the case is here on error to that court'.

We can not of course inquire into the motives of the members . of the General Assembly.

It' is well settled that a state in the exercise of its police power may restrict objectionable trades to certain localities, but “To justify the state in thus interposing its authority in behalf of ‘the public, if must appear, first, that the interests of the public generally* as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose and. not unduly oppressive upon individuals. The Legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations.” (Mr. Justice Brown, in Lawton v. Steele, 153 U. S., 133, 137).

“It will probably not be disputed that every one .has a right to pursue in a lawful manner any lawful calling which he may select. The state can neither compel him t'o pursue any particular calling nor prohibit him from engaging in any lawful business, providing he does so in a lawful manner. It is equally recognized as beyond dispute, that the state, in the exercise of its police power, is, as a general proposition, authorized to subject all occupations to a reasonable regulation, where such regulation is required for the protection of public interests or for the public welfare. It is also conceded that there is a limit to the exercise of this power and that it is not an unlimited arbitrary power, which would enable the Legislature to prohibit a business, the prosecution of which inflicts no damage upon others.” (Tiedeman’s Limitations of Police Power, Section 85).
“If the police regulation of trades and occupations can not be instituted and enforced, except so lar 'as a trade or occupation is harmful or threatens to be harmful in any. way to the public, however slight the restraint may be, so much the more necessary must it be to confine the exercise of the police power to the prevention of the injuries with which the public is threatened by the prosecution of a calling, when the laiy undertakes to deny altogether the Tight' to pursue the calling or profession. In proportion to the severity or extent of the police control must the strict observance of the constitutional limitations upon police power be required. There is no easier or more tempting opportunity for the practice of tyranny than in the police control of occupations. Good and bad motives often combine t'o accomplish this kind of tyranny. The zeal of the reformer, as well as cupidity and self-interest, must alike be guarded against. Both are apt to prompt the employment of means to attain the end desired, which the Constitution prohibits.
“It has been so often explained and stated that the police power must, when exerted in any direction, be confined to the imposition of those restrictions and burdens which are necessary to promote the general welfare; in other words, t'o prevent the infliction of a public injury, that it seems to he an unpardonable reiteration to make any further reference to it. But the principle thus enunciated is the key to every problem arising out of the exercise of police power. Applied t'o the question of prohibition of trades and occupations, it declares unwarranted by the Constitution any law which prohibits altogether an occupation, the prosecution of which does not necessarily, and'because of its unenviable character, work an injury to the public. It is not sufficient that the public sustains harm from a certain trade or employment, as it is conducted by some who are engaged in it. Nor is it sufficient that all remedies for the prevention of the evil prove defective, which fall short' of total prohibition. Because many men engaged in the calling persist in so conducting the business that the public suffer, and their actions can not otherwise be effectually controlled, it is no justification of a law which prohibits an honest man from conducting the business in such a manner as hot to in,flict injury upon the public.” (Tiedeman, Section 102).
“Another more or less common mode of police regulation of employments is the determination of the localities in which the trade will be allowed. Very many trades are beneficial to society in general, and it would be unconstitutional to prohibit them altogether, and yet they may be subjected to whatever reasonable regulations may be needed to avert or prevent some special danger, which is threatened by the prosecution of them. * * * But the prohibition as to locality must be reasonable, in order that' it may not offend the constitutional limitations.” (Tiedeman, Section 104).
“As long as a trade does not injure the public health, and is the source of no annoyance whatever to the inhabitants of the locality in which it is conducted, it can not lawfully he prohibited. Every man has a constitutional right to follow on his premises any calling provided it does not in ’any way interfere with another’s reasonable enjoyment of his premises. But if the prosecution of a certain trade affects another injuriously, the state may so regulate the trade that the injury may be avoided or reduced to a minimum. If the trade is in itself, and necessarily, harmful to one’s neighbors, or to the public health, it may be prohibited altogether. But if it can be prosecuted under certain limitations so as to avoid injury to others, the police regulation must be confined to the imposition of these needed restrictions and the trade can not be absolutely prohibited.
“The police regulation can not extend beyond the evil to be remedied. Where, therefore, certain trades and employments, which serve some useful purpose and add something to the world’s wealth, are harmful t'o the inhabitants of the locality in which they may be conducted; and the harm may be avoided altogether, or considerably reduced, by confining them to localities in which the population is sparse and the residences 'are few, it is altogether permissible to prohibit the prosecution, of those trades in other localities. * * * But in all these eases the prohibition must be confined to the removal of the evil to be guarded against. There can not be an absolute prohibition of a trade in a locality in which it may be prosecuted without annoyance or inconvenience to the neighboring residents.” (Tiedeman, Section 122c).

Geo. B. Oltey and F. A. Davis, for plaintiff.

John.M. Sheets, Attorney-General, for defendant.

It seems to us that the amendment of this statute fails to meet the tests mentioned by Mr. Justice Brown. It does not appear that the interests of the public generally require such interference, or that this restriction was necessary. We may concede that the prohibition of the carrying on of such a business within a reasonable distance of an asylum or other benevolent institution of the state, or of the public schools, or of a seminary might be in the interests of the public or conducive to the public welfare, but what -interest of the public is subserved by the prohibition of the carrying on of such a business within four hundred feet of the administration department -of a state penal institution? If this amendment is valid, we can not' see why -a law prohibiting the carrying -on of such -a business within four hundred feet of John Smith’s house would not also be valid and certainly no one would claim that such an act could be justified on any ground of public necessity. Arud if not required by the public welfare, .to- permit such a restriction upon the use of this property -merely in private interests would be in effect to take the plaintiff’s property without due process of law. If the business is so conducted as to become a nuisance, John Smith would have a remedy, and so have the managers of the penitentiary, but the business is not necessarily -or inherently -a nuisance, and it may not, therefore, be declared to be one, nor can it be restricted from being carried on in a certain locality unless in the interests of the public, and no such interest appears. It follows, therefore, that the plaintiff should have been discharged and that the court of common pleas erred in confirming the judgment of the police court, and the judgments of these courts are reversed, and the plaintiff discharged with his -costs.


text:
    DAMAGES TO LAND OF NEIGHBORING RIPARIAN OWNER. BY EMBANKMENT.
    [Circuit Court of Pike County.]
    Robert Welty v. John M. Vulgamore.*
    Decided, 1901.

      Riparian Rights — Embankment for the Protection of Land — Causes Injury to Neighboring Owner — Due to an Extraordinary Flood— Estoppel.

    1. The construction of an embankment upon one’s own land, to protect it from the action of the waters of a stream, does not render the owner liable for injury to the land of a neighboring riparian owner, where such injury is sustained during great and unusual floods, which people of ordinary prudence and intelligence would not have anticipated.
    2. Estoppel arises only when the person sought to be estopped has done some act, or made some admission, with the intention of influencing the conduct of another, or that he had reason to believe would influence the conduct of another, and which act or admission is inconsistent with the claim he is now making.
    Russell, J. (orally); Cherrington, J., and Sibley, J., concur.
   The case of Robert Welty v. John M. Vulgamore is a petition coming into this court by appeal from the court below. The case is brought here by an amended petition filed by the plaintiff, and it alleges that the plaintiff was, at the time hereinafter mentioned, which was in 1890, and still is the owner in fee simple of eighty-five acres of land situate in this county, on the easterly side of the Scioto; and I might say also alleges that it is situated on the exterior bend of the river. The plaintiff also alleges that the defendant, Vulgamore, is the owner of one hundred and forty-five acres of land situate on the westerly side of the Scioto river, and on the interior bend thereof. The plaintiff further alleges that in 1884, and before the plaintiff became the owner of the said land, there occurred in said river a great, unusual and unprecedented flood, whereby the lands of defendant were deluged and flooded; that the defendant witnessed the same and thereupon determined to construct an embankment of sufficient height and extent -to withstand the pressure and turn the waters of the most unusual and extraordinary flood that might occur in the river. Then the plaintiff alleges that some time prior to February, 1898, and after the flood of 1884, the defendant constructed, upon his lands above described, within the bend of the river aforesaid, an embankment composed of earth and stone, about one hundred rods in length and of great 'and unreasonable height, extending from a point near tbe 'Canal, in an easterly direction across tbe bottom to the river, near to low water mark in said river, or stream, said embankment being located about tbe middle of said bend and at right angles to the stream.

The plaintiff says that said levee was of sufficient height, length and extent to turn the overflow in case of the usual and ordinary, and the most unusual and extraordinary freshets, and the said embankment was higher by some feet than the highest flood that ever occurred in said stream, including the Rood of 1898; that the effect -of the said embankment in times of freshets, 'alike in usual and extraordinary floods in said river, is to form a dam to the overflow water of the Tiver, and to prevent such overflow from passing into and over the lands aforesaid of the defendant; but such 'overflow waters 'are by said embankment diverted from their natural course down the river in a southerly direction and caused to flow easterly 'across said embankment and otherwise to flow across it and over upon the lands of said plaintiff; that because of the bend in tbe river at said point, in times of freshets, the great body and volume of tbe overflow water would- naturally flow over the lands of the defendant on the west side of the river, but by the erection and maintenance of said levee or dam, by the defendant, all of the said overflow is dammed up, forced along said embankment, and flows -over the opposite side, upon the plaintiff’s lands, thereby relieving defendant’s lands and throwing the entire weight and burden of water upon tbe lands of the plaintiff, causing a more rapid and whirling current around to the east of the said levee and upon the lands of the plaintiff; that because of the increased force of toe current of water occasioned by said embankment, -the lands of plaintiff are being encroached upon, the river is being rapidly moved to tbe eastward, thereby diminishing toe lands of plaintiff, by toe encroachments of the river, and increasing toe lands of the defendant by accretion produced by tbe action of said river; that during the flood of 1898, and at all times of flood of said river, including both, ordinary and usual freshets when said stream is out of banks, which is reasonably expected and does occur during the rainy season of each year (which said floods have occurred one or more times during the erection of said levee) the lands of the said plaintiff were overflowed by the waters of the said river, and because of the embankment, the overflow on the said lands of the plaintiff was increased -in violence, and said lands were entirely inundated, 'and by the rapid .and swirling current, said waters washed off and carried away the soil from about thirty-five acres thereof, washed deep holes 'and gullies in the surface, deposited logs, debris and gravel thereon, .and undermined and washed away a large portion of the west side of the plaintiff’s lands, thereby rendering said lands- wholly unfit for cultivation and destroying the same.

The plaintiff avers that. said embankment is unreasonable in height and extends out into the river almost to low water mark, and by reason of the great and unreasonable height of the levee— the great and unreasonable height and, length of said levee — plaintiff’s lands continue to wash and undermine and be damaged by the ravages of the said stream at times of flood, as aforesaid, and each recurring flood will cause an additional injury to plaintiff’s lands, if said embankment is maintained at its present height.

. The plaintiff in the case then further avers that said embankment was constructed by defendant at a point in the bend of the river, 'and at such length and height as would throw all .the water off Ms lands, in times of freshets, onto the lands of the plaintiff;, that, -the same was done in total disregard of plaintiff’s rights, etc.1 Wherefore, the plaintiff says that he has sustained great damage and 'asks for damages in the sum of $2,000, and asks that the defendant be enjoined' from maintaining tire embankment.

I have thus restated a large portion of the petition, from the fact that it is stated in an admirable manner; the claim of the plaintiff could not, I -think, be stated in more concise and -accurate form than is done in the petition.

To that petition the defendant files an answer, which in the first count, is a substantial denial of each of the material allegations in the petition; there are four counts, or rather three counts numbered, and the fourth paragraph, which is equivalent to a fourth defense.

As I said a moment ago, the first count in the answer copies the material allegations of the petition and then denies each; it might as well have been a general denial of 'all the allegations, except the building, I take it, of this embankment, because that is the effect of it. In the second defense if sets up the statute of limitations; in the third defense, by. way of an excuse for the building and erection of this embankment, it sets up that these lands are agricultural lands, and that the defendant, for the purpose of protecting himself' against the encroachments of the river, was compelled to construct this embankment. The fourth defense is a defense of estoppel. It alleges that at the time when the defendant was about to construct this embankment, that the grantor of the plaintiff, knowing that his land was being washed away, encouraged and induced him to make the embankment; thereby, as it is claimed by the defendant, the grantor of the plaintiff would be estopped, and the plaintiff coming in as grantee under the original grantor, would also be estopped from making any objection to the continuance of this embankment, because he had consented to and; had encouraged the building of the same.

Now, so far as the matter of estoppel is concerned — taking it up in tbe reverse order in which it is presented — I might say, though, that there is a reply denying all the material averments and new matters set up in the answer, and the case -comes to issue upon these questions. Taking np, ‘as I said' a moment ago, the allegations •of the answer in the inverse order in which they are presented, 1 might say there is no evidence showing that the plaintiff’s grantor did anything that caused the defendant to expend any money, or perform any duties in reference to this embankment, that he would not have done, and did not intend to do, without the advice or consent of the grantor of the plaintiff; and I might say that the matter of estoppel is well presented in this case in 1 American & English Decisions in Equity, commencing on page 55. What constitutes it an estoppel? The person sought to he estopped must do some act, or make some admission, 'with the intention of influencing the conduct of another, or what he has reason to believe would influence his conduct, and which act or admission is inconsistent with the claim he now proceeds to make. The other party, too, must have acted upon the strength of such admission or conduct.

Now, Mr. Vulgamore here did not claim that he acted — that he expended any money upon the advice, consent and encouragement of the original ■ grantor, and hence this defense must necessarily fail.

Now, going hack to the other questions presented, I might say that as to the statute of limitations, the evidence here shows that the material damage to this propertjr, whatever did accrue, accrued in 1898, and that the action here was brought in that year; so that no question, from the evidence here, no question was made for our consideration upon that question of the damage of 1898 — yes, and 1897, also. Now, so far as — coming back now to the main controversy that exists and that was presented to us in this ease: It is whether or not the defendant, at the time he constructed this embankment, constructed the same as a reasonable and ordinary man should with regard to the property of his neighbors, and so far as the evidence is concerned, before us, there is no substantial conflict as to what he did, when he did it, and as to the results to the land of the plaintiff. There was quite a large number of wit-messes testified before us, men of standing and character, 'as it seemed from their evidence, no one desiring, as it seemed, to vary from what was the exact truth; so that it becomes not a question of a contention, you may say, between, the two sides as to the evidence presented, but it is a question on the evidence presented to us, as to what are the legal rights of the parties; because, as I said a moment ago, the facts in the case are so overwhelming, in one way, that they are substantially to be said to be admitted. In other words, the defendant, in his defense, did not introduce any evidence to contradict and vary the statements made by the plaintiff. Then it presents a question, as I said — more of a question of law on the evidence that is substantially admitted, than it is a question of evidence.

Now, the question 'as it is presented to us — we think we are justified in making the following findings:

(1). We find from the evidence that the defendant constructed his embankment substantially 'as averred in the plaintiff’s petition.

We also find from the evidence that three acres of plaintiff’s land were destroyed in 1893; three acres in 1897, and twenty acres in 1898.

The embankment of the defendant caused a great part of the damage to plaintiff’s land.

Counsel will understand, and every one that, heard the evidence will understand, as well as the court, that we can not say the whole of the damage was done by reason of this embankment, but the greater part, the greater part of this damage, we think from this evidence, was produced in 1898 and 1897, by reason of this embankment — and also in' 1893.

That each and' all of the floods that caused the damage to plaintiff’s land were extraordinary floods; that no damage occurred to plaintiff’s land at any of the ordinary or usual floods, by reason of the construction of the said embankment of the defendant.

That is the only one of the findings, so far, that we have any doubts at all about. There was one or two' of the witnesses, Mr. Barnes, for instance, I think, H. C. Barnes, testified in answer to a question by counsel for the plaintiff — he said that the embankment turned the water toward the land of the plaintiff in usual and ordinary floods, as well as the extraordinary floods; but when we look at all the evidence, including the plaintiff’s, we find that no witness testified to any damage having occurred at any of the times other than the floods of 1893, 1897 and 1898. The plaintiff himself expressly states that the first damage that he noticed on his land was at the flood of 1893. Then he 'gives the amount of the land that 'he thinks he lost in 1893, and then says that at the recurring flood of 1897 he lost about the same amount; then he says that the disastrous flood of 1898 destroyed about twenty acres of his land.' So that, I say, while some of the testimony would seem to indicate that in the ordinary floods the current of the river was diverted toward the land of the plaintiff, yet, from the evidence, there is nothing to show us or convince us that any damage occurred because of the construction of this embankment, at any of the usual and ordinary floods.

We further find that at the time defendant built his embankment he could not have reasonably anticipated the said flood that did the damage to the plaintiff’s land, and the defendant used reasonable and ordinary care in the construction of said embankment.

Now, from the evidence, we think we are fully justified in making these findings, from the fact that there is no evidence before us that, prior to 1884, any flood that had ever occurred since any of the inhabitants could recollect, had been so high as the flood of 1884 — and there is a singular coincidence that in about nine years after that flood, another flood occurred that came' within about six inches of it, and that in 1897 another flood occurred that -was near the same in 'height, and that in 1898, 'as the principal part of the evidence shows, that the river was six inches higher than was ever known before; so that within fourteen years of each other, four floods had occurred that were higher than, so far as it appears from the evidence before us, any flood that had ever occurred in the valle}7, and -we think we are justified in, as I said a moment ago, in finding that these four floods were extraordinary floods; not the usual and annual floods that might be anticipated from year to year, in the spring and fall, but they were extraordinary floods, unusual. The petition avers that the 1884 flood was an extraordinary flood, and that the other, as I said — one of them being considerably higher, the 1898 flood — 'and the others so near it in height — we think we are justified in saying that they were all four extraordinary floods and could not be anticipated by a reasonable and ordinary man, situated as this man Yulgamore was.

Now that raises'the question of whether or not Yulgamore is liable, on these findings of fact, as produced to us, and as the law governs in cases of this kind, and we are cited to a large number of authorities, a few of which I propose to refer to briefly.

Counsel have ably presented this case to us, and as I said awhile ago, the facts are substantially admitted; so it becomes a question of law, and we have been greatly aided by the able'presentation of the matter by counsel, and we have arrived at a conclusion, which is as satisfactory, probably, as conclusions usually arrived at in cases of this kind.

Now, it is insisted by counsel for the plaintiff, taking the circumstances under which he built this embankment, that Yulgamore is not only liable for the damages that occurred by reason of the ordinary and usual floods, but that he is liable for those that occurred by reason of the extraordinary floods, and that is the question, and we 'are cited to a case in 139 Illinois, which, at the reading of the case, seemed to us to be a very strong ease in favor of the plaintiff, and if the rule there laid down were to govern in eases of this kind, then it should be Substantially followed; but I might say. that we think that when the case is read carefully, a distinction may be drawn between the facts as found in that ease and the facts that are found before us in this ease. It is a case of The Ohio & M. Ry. Co. v. Ramey, 28 N. E. Rep., 1087, 1088; (139 Ill., 9). The railway company, in constructing and maintaining embankments, bordering upon a water course, is bound not only to anticipate and provide for the flow of the ordinary rise and fall of the waters during the year, but also for the floods and freshets which occur at long periods, or intervals, and which, from having been known to occur, may reasonably be expected again.

“Although a rainfall may be more than ordinary, yet if it be such as has occasionally occurred, 'and it may be, at irregular intervals, it is to be foreseen that it may occur again, and it is the duty of those changing or restraining the flow of water to provide against -tire consequences that will result from it.
“In an action against a railway company to recover damages for the obstruction -of the flow of water by an embankment, and thereby overflowing upper lands, the question will not be whether the defendant has sufficiently provided for the escape of the water of ordinary floods, but, has it provided for the escape of the waters of such unusual or extraordinary floods as it should have anticipated would occasionally occur in the future, because they had occasionally occurred at intervals, though of irregular duration, in the p'ast.”

Now let ns apply the facts of the case to the case as found here, on the evidence in this case.

In that case, the court puts, the decision upon the ground that they were not only to provide, in their embankment, against the floods that may usually occur, but such floods as extraordinary floods that occur occasionally, and that have occurred in the past.

Now, 'how stands the case at bar? In this case Vulgamore had one flood, as 'appears from the evidence, to guide him; that was the flood of 1884. No evidence showing that this Scioto river had occasionally, at long intervals even, raised the height that it did in 1884; therefore, he had but one of what may be generally known in this Scioto and Ohio valley, as one of the most remarkable floods that has appeared since the white man occupied the country; so that, as I say, he h'ad nothing to indicate to him excepting the flood of 1884.

Now, what should a reasonable man do, knowing, there had been one such flood — when he went to construct, or undertook to construct, a levée or embankment? Why, we will all see readily that an ordinary, prudent man would not be required to anticipate the flood of 1884. Why? Because, as I said, from the evidence before us, no such flood had ever appeared before; therefore, he would not be required as a prudent man, to guard against a flood of that kind in the future.

Now some other cases were cited to us, a large number, as I said a moment ago, and I only propose to read extracts from a very few of them. Another case cited and relied upon by counsel is Salisbury v. Herchenroder, 8 Am. Rep., 354; (106 Mass., 458):

“Defendant suspended a sign over a street in Boston, in violation of a public ordinance of the city. During an extraordinary gale the sign was blown down and a bolt, part of the fastenings, was hurled against plaintiff’s window, causing damage, for which an action was brought. Held: That the defendant was liable, notwithstanding due care was exercised in constructing and fastening the sign.”

Now, I might say, without reading the opinion of the court in that case, that that is. put upon the ground that the party was violating an ordinance; he was violating a rule or law of the city, and therefore he could not defend himself even against an act of God, because he had not any right, 'as a man has on his own land, to make an obstruction. In other words, a man building an embankment upon his own land is not violating any law of the land, but he may so injure his neighbor that he may be responsible for damages.

Another case is Gray v. Harris, 107 Mass., 492:

“One who builds a dam across a stream is bound so to construct it that it will resist not only ordinary freshets, but also such extraordinary floods as may be reasonably anticipated.”

Now, I do not recollect, in reading that case, whether the ground on which the court put that was that floods had occurred in the stream at various times before, but if so, that he must use such care, in the construction of a dam across the stream, to protect it against extraordinary floods, as a reasonable man would do under the circumstances.

Now those are all the authorities I- care to refer to on the part of the plaintiff, in opposition to the seeming authorities of the plaintiff, but, as we think, are not directly 'antagonistic to the authorities cited by the defendant in the case, -because we think the Illinois ease, where the flood occurred before, at previous times' —that might be considered an ordinary and usual flood, although the court there calls that extraordinary.

The first ease that I desire to read something from is Kansas City, M. & B. Ry. Co. v. Smith, 17 So. Rep., 78, 81 (72 Miss., 677; 27 L. R. A., 762). This is a case from Mississippi, and there are many things in it -that are similar to- the case at bar. I shall read but a small portion of it:

“The rules governing the rights and duties of individuals in reference to waters rest upon principles which underlie very many other property rights. At last they depend upon the two legal maxims that one may make such use as he wills of his own, and that he must so use his own 'as not to impinge the legal rights of others. As to the surface water of streams flowing along their channels, general rules have been formulated which are usually applicable, and under which the relative rights and duties of parties may be adjusted; but to apply these-rules to waters of a radically different class is to measure different conditions by a single standard. To say that flood waters are surface waters and may always be dealt with as such, or that they may be fenced against as may be waters of the sea, regardless of consequences, would be to give to one riparian owner the power and right of benefiting and preserving his own property at the direct expense of another.”

This was-a case 'against the Kansas City & Memphis Railroad Company:

“The roadway of the defendant company is not shown to he of sufficient height to obstruct the waters of Town creek, so as to deflect them upon the land of the plaintiff at time of ordinary or periodically recurring floods. The witnesses speak of the floods of 1874, and of those of April and July, 1892, as having been the highest ever known. It is not claimed by the plaintiff that bis lands wonld not have been submerged by the flood of July (for injury by which he sues) if no railroad had been built in the valley. His contention is that the water was somewhat deeper on his land, than it wonld have been, that it remained longer, and flowed with stronger current. But it must be borne in mind that all the evidence relates to an exceptional condition of affairs, to a flood equaled but twice, and exceeded but once in the memory of the inhabitants; and against such contingency, it wonld, in no ev-ent, be negligence not to provide.”

In that case, I might say that there had been1 three floods of extraordinary height, in this Town creek, which was a stream almost as wide as the Scioto river; it was testified to that if was one hundred and twenty feet wide there at this place, at ordinary height, emptying into the Tombigbee river, and the court say that, although three of these extraordinary floods occurred prior to the construction of this road, two of them occurring in one year, that that was not sufficient notice, so that an ordinary man would have constructed the embankment as the railroad company did.

Now the next case that I refer to is Borchardt v. Boom Co., 54 Wis., 107 (11 N. W. Rep., 440):

“A corporation authorized by the Legislature to construct a pier in a navigable river, is not liable for the flooding of lands by an extraordinary freshet, not reasonable to have been anticipated and guarded against, although, to some extent occasioned by the pier — the pier having been properly constructed.” See also Black River Improvement Co. v. Booming & Transp. Co., 11 N. W. Rep., 443 (54 Wis., 659).

Then the next case to which I refer, is Bell v. McClintock, 34 Am. Dec., 507 (9 Watts, 119), a Pennsylvania case. I shall only read the syllabus:

“The owner of a dam on a stream is liable for damages caused thereby to private property on such stream, by the ordinary and expected floods of the season, but not for those occasioned by extraordinary and unexpected floods. This principle applied in the case of a stream made navigable by law.”

The authorities cited in Village v. Kallagher, 52 Ohio St., 183, 186, have some bearing upon the principle of the question, but it is not a case concerning -the damming or turning of waters. It is a case that:

“A municipal corporation is- not an insurer against accidents upon its streets and sidewalks. It is held- to reasonable care only.In keeping its streets free from nuisance, impracticable things ■are not required, nor is a municipality bound to anticipate improbable or unprecedented events, and provide'against their possible results. To be bound to provide against unprecedented storms, therefore, is- to be required -to use extraordinary, or the highest degree -of care: Hence, in this case, if the bill board was not in itself a nuisance, i. e., if it was- so placed as not to interfere in any manner with the ordinary use of or travel on the streets or sidewalks near or about it, and was constructed in a good, substantial manner, so that it was safe and free from danger under all ordinary circumstances, and its fall was caused by an extraordinary or unprecedented wind storm, the village could not' be held liable.”

No-w, I think the principle in -this case is decided in the case of Railway Co. v. Carr, 38 Ohio St., 448, and I shall only read the third paragraph of the syllabus:

“When such change is made without fault or carelessness, and a levee on the opposite bank is broken and washed away by ‘an unusual but not unprecedented flood, whereby the crops growing on adjacent lands are destroyed, it is damnum sine injuria, notwithstanding a sand bar in the river at the mouth of the creek, caused by the change in the creek, may have contributed, in some degree, to the damage.” ■

Now the case in Ohio that we have felt controlled by more than any other one, considering it the strongest authority here when the case is fully investigated, is the case of Crawford v. Rambo, 44 Ohio St., 279, and I will only read the syllabus of the case. That was a ease where the two owners, one of them on the westerly side of the Muskingum river, and ¡the other on the easterly side, had lands that would, adjoin, had it not been for the river. The one on the westerly side constructed an embankment, by Which it was claimed by the plaintiff, the one on the easterly side, that it threw the water over onto him, and damaged and washed out and destroyed his land, somewhat as in the case at bar:

“The owner of land situated upon a river, or other running stream of water, has the right to construct embankments thereon for the purpose of protecting it from the currents of the stream, or otherwise benefiting it, subject to the duty of so constructing the same as not to occasion material injury to the lands of others situate upon the stream, where the same nmy be avoided by the exercise of ordinary care, intelligence and foresight.
“It is his duty, in the first instance, to exercise such prudence and care as an ordinarily careful and intelligent man might have exercised, as to whether his proposed embankment would cause material injury to the lands of his neighbor at the time of such floods 'as might reasonably be anticipated at any season of the year.
“By material injury must be understood, .an injury resulting in damages of a substantial nature, not merely .nominal, and which are, in some eases, awarded to prevent a wrong from ripening into a right by lapse 'of time. The use of streams and their water is, among riparian proprietors, a matter of common right, and an invasion of the individual right of one, can not be appreciated until some act is done by another in excess of the common right.

J. A. Eylar 'and 8. L. Patterson, for defendant in error.

“Where a riparian owner constructs an embankment upon his own lands, that occasions substantial injury to the lands of a neighbor upon the stream, and which might, at the time, have been anticipated by a man of ordinary prudence and intelligence, he is liable in damages for the injury as occasioned. And where it appears from its subsequent action, though not at the time of its construction, that it does and will continue at ordinary floods, to do injury to his neighbor’s lands, it then becomes his duty to abate, or so modify it as to avoid such injury, 'and: he is liable in damages for an omission to do so.
“Where an adequate remedy, in the-way of damages can not be had, the court may, in a proper case, order the abatement of an embankment that occasions substantial injury to the lands of another.”

So that, fake all the authorities — and we think these authorities cite a large number.of the cases — if we have found the facts from the evidence here correctly, we think that the law, as applied in Crawford v. Rambo, supra,, covers the dase at bar, and therefore the petition of the plaintiff will be dismissed at his cost.

We have found' — as suggested by my associate — thus substantially upon the evidence of the plaintiff. This case was up before us once before on error, but we do not feel at all controlled or governed by whatever we might have 'thought or decided at that time. We have investigated the ease anew, as if it had never been presented to us. We think this — if this embankment had been constructed after the recurrence of two or three of those floods, we would not have had any doubt in holding that those might be considered1 as ordinary floods that might be anticipated.


text:
    LIEN ACQUIRED UNDER. A MORTGAGE EXECUTED BY AN INSANE PERSON.
    [Circuit Court of Hamilton County.]
    McCracken v. Levi.
    Decided, January 13, 1903.

      Mortgage — Executed by an Insane Person — Lien of Enforceable, When —And to What Extent.

    The rule that a mortgage executed by an insane person is valid and enforceable in so far as the consideration was for the benefit of such person, is applicable to that part of the consideration which was used in liquidating a previous mortgage subject to the same infirmity.

      Enoch L. Stricher and Wilson & Wilson, for plaintiff in 'error.

      John Nichols, contra.
    ■Jelke, J.; Swing, J., and Gieeen, J., concur.
   It appears that $830.01 of the consideration of the $1,500 mortgage ’went to- pay off -a prior mortgage upon the property of Josephine McCracken, who it is contended, herein, was not of sound mind at the time of the execution of said $1,500 mortgage.

“A mortgage executed by 'am insane person is valid and enforceable, so far as the consideration was for the benefit of, or on account of the mortgagor, and its lien will be limited to the extent of the amount not paid to, or for, or by thp direction of such person, .and also- in so far as it is given to secure the antecedent debt of the mortgagor’s husband without new ox other consideration.” (Superior Court, General Term, Force, J.) Mahoney v. Goepper, 6 Bull., 33.

It is contended that the first mortgage upon whioh the $830.01 was paid was subject to the same infirmity as the one herein being foreclosed, but this does not appear from the record.

The -mortgage herein must be given force and effect to the extent of $830.01 and interest, which with costs will exhaust the proceeds of the property, so that any question beyond that must be academic. Any question beyond -that 'has so little substance as to- -make us resolve 'any doubt in favor of the judgment below with more than -ordinary certainty.

Judgment affirmed.


text:
    ASSESSMENT OF PROPERTY WITHIN FIVE YEARS FOR MAKING OF STREET AND MAKING OF SIDEWALK.
    [Circuit Court of Hamiltqn County.]
    Frank Drake et al v. City of Cincinnati.
    Decided, May 1, 1903.

      Assessment — For Street Improvement and for Sidewalk — Both May Be Levied to 25 per cent, of the Value of Abutting Property Within Five Years — Distinct Issue Between Two Parties to a Suit in Which None of the Others are Interested.

    1. The making of a street and the laying of a sidewalk on such street are two distinct and separate improvements within the meaning of Section 2271, R. S, O. Therefore, a piece of property abutting on such street can be assessed in an amount equal to twenty-five per cent, of the value thereof for the improvement of the street, and can be again assessed within a period of five years in an amount equal to twenty-five per cent, of the value of such property for the making of a sidewalk on said street.
    .2. The provisions of Section 2283, R. S. O., apply to improvements made on two different streets, and do not limit the amount of the assessments for two different improvements on the same street. Hunt v. Hunter, 14 C. C., 503, cited and followed.
    3. A distinct issue at law between only two of the parties, in which none of the other parties in an action purely equitable in its nature are interested, and not affecting the subject matter, can not be injected and tried in such equitable action.
    Jeeke, J.; Swing, J., concurs; Gieeén, J:, did not participate.
   It is admitted that the cost of the condemnation of the land must be eliminated from the assessment.

.It appears that the making of the street and the laying of the •sidewalk are distinctly separate improvements.

.Revised Statutes, 2271, applies t'o each improvement separately but oan not be made to apply to them added together.

The real controversy herein is over Revised Statutes, 2283. Plaintiff claims that under this provision the aggregate of these street and sidewalk improvements, being made within five years, can not •exceed twenty-five per cent, of the value of the property. The dty contends that Revised Statutes, 2283, can not apply because said section provides for making two different streets.

A. C. Shattuch, for plaintiff.

Albert H. Morrill, for the city.

L. M. Mongan, for Thomas Evans, the contractor for the improvement.

We are of opinion that the city’s contention in this behalf must prevail. We appreciate fully the strength of the argument of plaintiff’s counsel that if property is relieved from excessive assessment for the making of improvements upon different streets, it should be all the more relieved from such assessments pilad up on the same street. But this is purely 'a matter of statute, and the statute is plain and explicit and not open to construction or interpretation on this point.

This point has been directly passed upon by the Sixth Circuit, opinion per King, J., and we approve and follow their conclusion. We can not find that this point was called to the attention of the court and expressly decided in the case of City v. Bartley, 52 O. S., 650.

Inasmuch as the city contracted to furnish the sidewalk contractor with a valid -assessment, we are -of. opinion that the city can not urge its assessment to the postponement or defeat of such contractor’s assessemnt or any part thereof. As between the city and Thomas Evans, to the extent that Evans’ assessment is good, it must have a lien upon tire property prior to that of the city.

This is purely an equitable action and Thomas Evans can not inject an issue at law between himself and the city into it as to which plaintiff has no interest. Thomas Evans should prosecute that in a separate suit at laiw, and the decree herein will be without prejudice to such action by him.