author: HALE, J.

text:
    JUDGMENTS AND DECREES — ERROR—ACTIONS.
    [Summit (8th) Circuit Court,
    April 15, 1904.]
    Hale, Marvin and McCarty, JJ.
    (Judge McCarty of the Fifth Circuit sitting in place'of Judge Winch.)
    Akron (City) v. Cleveland T. & V. Ry.
    1. No Reversal and Modification of Judgment Unless Based on Finding of Fact, etc.
    The reversal and modification of a judgment by a reviewing court is only warranted when based upon the state of the pleadings, a finding of facts by the trial court, or upon facts brought before the court by a bill of exceptions. The rule that a reviewing court may, on reversal and under proper conditions, render such judgment as the trial court should have rendered in the action, has no application where the record only shows that the case was heard, argued by counsel, and a judgment of dismissal without prejudice rendered.

      2. Dismissal “Without Prejudice” Materially Different from Unqualified* Dismissal.
    The legal effect of the dismissal of an action “without prejudice,” is materially different from a dismissal without qualification, or with, prejudice.
    ERROR to Akron common pleas court.
    C. F. Beery, for plaintiff.
    Allen, Waters & Andress, for defendant.
   HALE, J.

On October 30, 1902, the city instituted proceedings in the probate court of this county for the assessment of the compensation and damages, by reason of the appropriation of property belonging to the defendant railroad company, , and others, to the use of the city.

After many delays, on August 4, 1903, the preliminary questions involved in the necessity and the right of the city to appropriate were heard by the probate court, and upon that hearing, for some reason, the court determined to consider the questions involved as against all other owners of property separate from and independent of the railroad company. As to all property owners, except the railroad company, the court found all jurisdictional facts involved in that hearing with the-, city, one that it was entitled to appropriate the property, and that a jury should be impaneled to assess the compensation and damages té the owners of the property; and there, as to all owners of property, except the railroad company, the record stops. On the same day this entry was m'ade on the issues made between the railroad company and the city:

“This cause coming on further to be heard on the application filed, herein by the city of Akron to appropriate and condemn the lands described therein against .the defendants therein named, and the- amended answer to said application filed 'herein by the Cleveland Terminal & Valley Railroad Company (each and all the other defendants having-failed to plead herein, and having failed to appear and contest the right of said city to appropriate said lands described in said application), the city of Akron and the Cleveland Terminal & Valley Railroad Company introduced their evidence and the cause was .argued by counsel and submitted to the court. It is therefore considered and adjudged by the court that the application of said city of Akron to appropriate said lands of said The Cleveland Terminal & Valley Railroad Company be and the same hereby is dismissed at its costs, but without prejudice to its: right to commence a new proceeding for the. appropriation of the property of said railroad company and the appropriation’of the property of any or all of the other defendants herein named, for the extension of said Prune street. ’ ’

To all of which finding and judgment of the court, exceptions were taken. A petition in error was filed in the court of common pleas to reverse so much of this judgment as added to the judgment of the court “without prejudice to its right to commence a new proceeding,” but leaving the remainder of the judgment stand.

The court of common pleas reversed that part of the judgment,, leaving it out as an absolute dismissal of the case, without the modification “without prejudice,” and the correctness of the ruling of the court of common pleas is now before this court for review.

No bill of exceptions was taken on the hearing of this issue before the probate court; there was no finding of fact by that court; and we are wholly ignorant of the facts upon which the judgment of the probate court was based. What we do know is, that after the evidence had been introduced, the court dismissed the proceedings without prejudice. Why, we do not know.

It is clear that this judgment, as a whole, cannot be reversed upon this record. Indeed, there is no claim that it can be. No such claim was made in the court of common pleas. That court was only asked, in effect, to modify the judgment. We are satisfied that that judgment must stand as rendered, or the whole judgment set aside; and as it is. not asked to set aside the whole judgment, it necessarily follows that it must stand as rendered. The judgment is ah entirety. The dismissal of' the proceeding, without prejudice, has an entirely different legal effect from the dismissal of a case with prejudice, or without that qualification. The probate court never rendered the latter judgment. That court adjudged that the proceeding should be dismissed without prejudice, but never held that, under the facts, the case should be dismissed without that qualification. To strike out that qualification leaves a judgment that that court never rendered; and there are no facts upon this record from which'this court, or the court of common pleas, could determine-that that court intended to render such judgment, or that such judgment was the proper one to be rendered.

We are aware that a reviewing court, on the reversal of a judgment, under proper conditions, may render such judgment as the trial court should have rendered in the case; but that must be done either upon the-state of the pleadings, or upon a finding of fact, or upon facts brought before the court in a bill of exceptions, so the court can have before it the-, facts upon which to base such judgment. There were no such facts in this case. All we know is, that the case was heard, argued by counsel and judgment rendered, dismissing tbe case without prejudice. Whether some technicality arose, or for what reason that was done, does not appear.

So we hold, as this record stands, no reversal or modification of that part of the judgment was authorized by the court of common pleas.

We, therefore, hold the court erred in modifying the judgment of the probate court, and the judgment of the court of common pleas is reversed, and that of the probate court affirmed.

Marvin and McCarty, JJ., concur.


source: Caselaw Access Project

author: HAYNES, J.

license: Public Domain

text:
    CHATTEL MORTGAGES — CONDITIONAL SALES.
    [Wood (6th) Circuit Court,
    November 28, 1903.]
    Parker, Hull and Haynes, JJ.
    Jefferson Richcreek v. Eva O’Donnell.
    1. When Seos. 4155-2 Rev. Stat. et seq. Conditional Sale Law, Applies.
    Where chattel property is sold to be paid for in installments, and under condition that it shall belong to the purchaser when the amount paid therefor shall equal a certain amount or the value of the property, the title, in the meantime, to remain in the vendor, the provisions of Secs. 4155-2 Rev. Stat. et seq., commonly called the conditional sales law, apply.
    2. Obal Evidence Competent to Show Conditional Sale.
    Oral testimony is admissible to show a conditional sale within the meaning of Secs. 4155-2 Rev. Stat. et seq.

    3. Vendor Cannot Replevin Property Without Returning Part op Purchase Money; Chattel Mortgage Does not Appect Vendee’s Rights.
    The vendor under a conditional sale contract is not entitled to replevin chattel property sold, on account of the default of vendee in making the stipulated payments on the purchase price, until he returns to vendee the amount already paid, less the amount of loss or damage to the property from its usage as provided by Secs. 4155-2 Rev. Stat. et seq. And the rights of the vendee, in such case, are unaffected by the execution and delivery by him of a chattel mortgage on the property, at the time of sale, to secure installments of the purchase price.
    Error to Wood common pleas court.
    W. H. McMillen, for plaintiff. '
    S. P. Harrison, for defendant.
   HAYNES, J.

This case comes here on error from the court of common pleas, and the testimony discloses that there was a sale of a buggy by the plaintiff, Richcreek, to Mrs. O’Donnell; that he received in payment for the same an old buggy, valued at a certain sum, and the balance of the purchase price was to be paid in cash in installments from time to time. To secure the payment of this balance, Richcreek received from Mrs. O’Donnell a •chattel mortgage and certain notes evidencing the amount to be paid, .and the terms of the payment. Some payments were made upon the purchase price, but finally Mrs. O’Donnell fell into arrears in her payments, and thereupon Richcreek replevied the buggy and sold it, it seems, under and by virtue of the terms of his chattel mortgage.

Upon the trial of this replevin suit in the court of common pleas, it was set up and claimed that the transaction, the sale, giving of the note •and mortgage, and the payments and endorsements, brought it within the provisions of Sec. 4155-1, 4155-2 and 4155-3 Rev. Stat., and the case proceeded to trial upon that theory upon the issues. Testimony was permitted to be given orally by Mr. O’Donnell as to the terms of the sale, and also by other witnesses. The court charged the jury that if the sale was a conditional one, that the plaintiff, Richcreek, would have no right to replevin the property until he had paid back to Mr. O’Donnell at least the amount of the purchase money that had been paid, less the amount of the loss to or damage to the buggy by reason of its usage.

The jury brought in a verdict for the defendant and gave her judgment for fifteen dollars. She had paid in all, it is claimed, thirty-six dollars, and thereupon the case was brought to this court upon error. The case seemed rather simple at first, but we found upon investigation that there were a good many questions of law that had been discussed and decisions by different courts that required considerable attention, before we arrived at a conclusion in the matter, some of us feeling, at least, that the case is a close one. There was cited to us by counsel on behalf of the plaintiff, the cases, Baker v. Speyer, 5 Circ. Dec. 335 (12 R. 118) ; Caldwell v. Manufacturing Co. 4 Circ. Dec. 680 (7 R. 460) ; Singer Mfg. Co. v. Caldwell, 55 Ohio St. 638 [48 N. E. Rep. 1118], and we have examined Tufts v. Haynie, 2 Circ. Dec. 668 (4 R. 494) ; Editorial Note, 31 Bull. 350; Goodman v. Manning, 9 Dec. 373 (5 N. P. 94), and Speyer v. Baker, 59 Ohio St. 11 [51 N. E. Rep. 442]. There is a case, Singer Mfg. Co. v. Caldwell, supra, wherein the judgment of the circuit court was affirmed upon the ground stated in the opinion of the •circuit court, and that ease would appear to be favorable to the contention of the plaintiff.

We have made an examination of Speyer v. Baker, supra, and think it substantially settles the law of the question and along the line •of the charge that was made by the court of common pleas. In that case there was a sale of personal property, household goods, in Hamilton county, and a chattel mortgage was taken back providing for the payment of certain sums of money from time to time and within the usual conditions and clauses that are ordinarily found in chattel mortgages.

The syllabus. of the case substantially holds:

That where chattel property is to be sold and paid for in part installments, and conditioned that it shall belong to the purchaser when the amount paid thereon shall be a certain sum, or the value of the property, the title to remain in the vendor until such amount shall be paid was within the statute; and the rights of the purchaser, under the statute, are unaffected by the execution of a mortgage on the property, at 'the time of sale, to secure installments of the purchase price.

That where a purchaser at such sale has made payments on the property, he is entitled to its possession, though in default as to other installments, until there shall be refunded or tendered back the amount so paid, less a reasonable compensation.for the use of the property and for any damage done to it while in his possession; and the amount which he is so entitled to have refunded should be awarded him as damages when the property is taken in replevin at the suit of the vendor.

That that law would govern any sales of that kind made and that the replevin proceedings would have to be made upon the terms and conditions of the contract.

In that case, counsel for the defendant contended that the giving of the chattel mortgage recognized the property, as the property of the mortgagee, and took the case out of the statute and converted it into $ sale absolute, and the court of common, pleas so charged the law to be,, but the circuit court of Hamilton county reversed the common pleas; court and the case came to the Supreme Court, and the action of the circuit court was affirmed; and, without reading the decision, I will say that the Supreme Court stated the law to be, that if the sale is a sale upon condition that the property should be retained by the vendor,, then the statute governed'; but the fact that .a chattel mortgage was given in a regular form will not take the ease out of the statute; it still remains á conditional sale, notwithstanding a chattel mortgage was given as if the mortgagee owned the property, and we recognize the fact that the law is, that oral testimony may be given to show what the contract of sale really was as between the parties.

In other words, the party may establish his contract of sale by oral evidence, and that the question of whether the statute will apply or not,, will depend upon the fact as to whether there was a contract of sale conditioned that the owner should retain the title to the property. The' charge of the court of common pleas was along that line the jury found for tbe defendant, practically finding there was a conditional sale.

Unfortunately for the defendant, Mrs. O’Donnell, she testified in the case, and she testified as strong as language would permit her, that the sale was not a conditional sale, but an absolute sale; that the property was hers and belonged to her, and she took it and gave a mortgage back — Richcreek, she says, agreeing to be lenient, and letting her pay from time to time. The testimony of the other parties was along the same line.

We are constrained to hold, therefor upon the clear weight of the testimony so far as the testimony is concerned, that the sale was not a conditional sale, but was an absolute sale, and that the jury should have so found, and should have found for the plaintiff, Richcreek, instead of finding for Mrs. O’Donnell.

The judgment of the court of common pleas will therefore be reversed, as the court should have granted a new trial, and the cause will be remanded to that court for further proceedings according to law.

Parker and Hull, JJ., concur.


author: DUSTIN, J.

text:
    MUNICIPAL CORPORATIONS — SPEED ORDINANCES.
    [Franklin (2nd) Circuit Court,
    1904.]
    Sullivan, Dustin and Wilson, JJ.
    Campbell M. Chittenden v. Columbus (City).
    1. Invalidity or One Section or an Ordinance Does not Affect Another, When.
    The invalidity of one section of a municipal ordinance does not invalidate another section which, standing alone, is complete in itself.
    2. Ordinance Regulating Speed and Equipment or Vehicles not Inhibited by Sec. 1694 Rev. Stat.
    An ordinance which, in one section, regulates the speed of automobiles and other vehicles within the corporate limits, and in another requires them to carry lighted lamps between sunset and sunrise, and give warning of imminent danger by sounding a bell, gong, etc., all of which is germane to the general subject expressed in the title, does not contain more than one subject, and is not therefore within the inhibition of Sec. 1694 Rev. Stat., which provides that no by-law or ordinance shall contain more than one subject which shall be clearly expressed in its title. Said section is directory merely, and not mandatory.
    3. Limiting Speed oe Vehicles to Seven Miles an Hour not Unreasonable, etc.
    Allowing street cars to run at a greater rate of speed within a municipality than automobiles, does not necessarily constitute such a discrimination against the latter as to invalidate the ordinance which regulates their speed. Nor is an ordinance which limits the speed of automobiles, bicy-cíes, etc., to seven miles per hour within the corporate limits, so un- . reasonable as to warrant its invalidation by the courts.
    4. Construction of Boundaries When Streets do not Meet, or Rivers not Named.
    Where streets are named as boundaries and do not meet, their lines are to be considered as if extending to the meeting point; and where a certain “river” is mentioned without naming it, the first river in the direction indicated is meant.
    5. No Judicial Notice of Ordinances.
    Courts do not take judicial notice of municipal ordinances.
    6. Ordinance Only Inoperative as to Outside Territory.
    The fact that territory lying without a municipality is included within an ordinance regulating the speed of vehicles, does not invalidate the ordinance as to the territory within the corporate limits. The ordinance is pnly inoperative as to the outside territory.
    7. Council May Prescribe Different Rates of Speed in Municipality.
    It is within the pt-ovince of the municipal council to prescribe different rates of speed in different portions of the municipality, according to the width of the street, their use, and density of population.
    8. Court Will Correct Errors in Punctuation.
    Where, through an inadvertence or typographical error, a sentence in an ordinance is broken by a period, a court will read it as a comma, according to the manifest intent.
    ERROR to Franklin common pleas court.
    Kinkead, Merwine & Schumacher, for plaintiff in error.
    J. M. Butler, C. E. Carter and Outhwaite, Linn & Thurman, for defendant in error.
   DUSTIN, J.

Plaintiff in error was arrested, tried and fined $25 and costs by the police court of tbe city of Columbus, for running an automobile at an unlawful speed within certain city limits, in violation of city ordinance No. 16,867, which prohibits an excess of seven miles per hour.

On error to the common pleas court the judgment of the police court was affirmed. This action is brought to reverse said judgment of affirmance.

On behalf of plaintiff in error, it is claimed:

First. That the ordinance under .which plaintiff in error was arrested and fined is invalid, because a violation of Sec. 1694 Rev. Stat. which provides that, “No by-law or ordinance shall contain more than one subject, which shall be clearly expressed in its title. ’ ’ The title of' said ordinance is as follows: “An ordinance, No. 16,867, to regulate the speed of animals, bicycles, tricycles, automobiles, motor cars and other vehicles, ridden, driven, or propelled upon and along the streets, avenues, alleys and other public ways of the city of Columbus, Ohio, and repealing certain other ordinances.”

Tbe first section of tbe ordinance does “regulate tbe speed,” as tbe title indicates, and nothing else.

The second section provides that certain vehicles of those mentioned in the first section shall carry lighted lamps between sunset and! sunrise, and give warning of imminent danger by sounding a bell,, whistle, horn or gong.

It is claimed that this section embraces a new subject, not covered! by the language of the title, and therefore the whole ordinance is invalid. If this were true, it would not in our opinion invalidate the first section, under which plaintiff in error was tried, because that section is complete in itself, and may stand (if otherwise valid) regardless of the invalidity of the second.

Again, it has been held in Ohio, that a similar constitutional provision is directory, and not mandatory. But we think the ordinance does not, under a true construction of Sec. 1694 Bev. Stat., “contain more than one subject.”

The purpose of regulating the speed is to reduce the probability of accident in the more crowded streets of Columbus, and the regulation as to lamps and gongs is germane to the subject. But for that, the vehicles mentioned could run with more impunity at night than in the daytime, because without lighted lamps their location and speed could not well be observed by the officers of the law.

This precise question was made in the case of Bergman v. Railway, 88 Mo. 678, where it was held that an ordinance purporting to regulate the speed of trains in city limits is not invalidated because the second section has reference to their equipment. The court in its opinion, on page 683, refers to its previous decisions with reference to legislative acts, alleged to be in violation of a constitutional inhibition (existing also in Ohio) similar to the statute in question, and says:

‘ ‘ This court has been repeatedly called upon to construe it with reference to the validity of acts of the legislature, and it has uniformly been held that, an act cpntaining a section relating to matter germane to the general subject expressed in the title, is not obnoxious to such constitutional inhibition, the object of the inhibition being to prevent the practice of joining in the same bill incongruous subjects having no relation or connection with each other, and foreign to the subject embraced in the title, and that a liberal construction should be placed on the constitutional provision rather than embarrass legislation, by a construction whose, strictness is unnecessary to the accomplishment of the beneficial purpose for which it was adopted.”

We think that principle is sound, and applying it to the ordinance before us, find that the subject treated of in the second section is germane to the general object and purpose of the ordinance as indicated in its title.

Second. It is said that the ordinance is unreasonable, in that it limits the speed of all the vehicles named to seven miles per hour, and that the enforcement of the ordinance against bicycles would virtually banish them from the streets. The legislative body of the city, composed of its citizens, has with full knowledge of all the circumstances and after due deliberation, fixed seven miles per hour as a proper rate of speed. If that be now considered unreasonable as to bicycles, it may be readily amended. It is not so unreasonable as to demand its invalidation by this court.

Third. It is said that the ordinance is partial and' discriminates against automobiles because another ordinance allows street cars to run at a greater rate. There is nothing in the bill of exceptions to show that this is the case, and the court does not take judicial knowledge of ordinances. However, we think that it would be a very proper discrimination, because street cars are confined to their tracks and can be easily avoided, whereas automobiles have no certain course and on that account are much more dangerous to the pedestrian.

Fourth. It is said that the ordinance is void for uncertainty, because the boundary streets of the district do not meet; that there are two rivers on the west, and it is uncertain whether the Olentangy or Scioto river is meant by the word “river,” and because the northeast corner (the lines being extended) contains a piece of territory beyond the city limits; also because different rates of speed are prescribed for different portions of the described district.

We think that where streets are mentioned as boundaries and do not meet, their lines are to be considered as if extended to the meeting point; where a river on the west is mentioned without naming it, the first river in that direction is meant; where outside territory is included that the ordinance cannot of course operate in that portion, but that fact does not invalidate it within corporate limits.

As to the different rates of speed allowed in different portions of the prescribed territory, it may be said that it is not for plaintiff in error to complain. There is no uncertainty whatever in his case. He was clearly operating within the seven-mile per hour limits. But we think it is within the province of the city council to prescribe different rates of speed in different portions of the city, according to the width of the streets, their use, and the density of population.

Through an inadvertence or a typographical error, a sentence in ;Sec. 1 is broken by a period. The court will read it as a comma, according to the manifest intent.

Plaintiff in error made no defense whatever upon the merits of the case, taking refuge behind the supposed invalidity of the ordinance. ¥e find no error in the proceedings of the courts below, and think th« judgment of the common pleas court should be affirmed.

Sullivan and Wilson, JJ., concur.


author: COOK, J.

text:
    CRIMINAL LAW — TRIAL—COURTS.
    [Ashtabula (7th) Circuit Court,
    September Term, 1904.]
    Laubie, Cook and Burrows, JJ.
    Thomas Mason v. State of Ohio.
    Change of Judges During Trial.
    Where upon a trial for murder in the second degree, after the evidence is all introduced, the trial judge becomes incapacitated to further continue in the case, and the prosecution is adjourned for eighteen days, part of the time from day to day by the sheriff, and at other times by another judge of the same subdivision; during which adjournment the jury is permitted to separate, going to different parts of the county; at the end of the eighteen days another judge of the same district hears the arguments, passes upon the motion for a new trial, and sentences the prisoner; and it does not affirmatively appear by the record that the new judge read any portion of the evidence, neither that the jury had been in any manner tampered with: Held, that there was irregularity in the proceedings of the court and jury, and that the judgment should be reversed, and a new trial granted.
    ERROR to Ashtabula common pleas court.
    H. J. Redmond, A. C. White and Perry & Roberts, for plaintiff in error.
    C. L. Taylor, prosecuting attorney, for defendant in error.
   COOK, J.

Thomas Mason, plaintiff in error, was indicted for the crime of murder in the second degree, was tried, and convicted of manslaughter.

Two principal grounds of error are relied upon: (1) that the verdict was against the evidence; and-(2) irregularity in the proceedings of the court and jury.

As to the first ground it is sufficient to say that it is not well taken; but the second presents questions of a serious nature.

It appears from the record that Mason was placed on trial February 3, 1904, and upon the third, fourth and fifth of February the jury was impaneled, ease stated, and all the evidence on both sides introduced. At the adjournment of the court on the fifth, the jury — not having been ordered kept together — was duly cautioned not to converse with any one or read anything about the case during their separation. On the morning of the sixth the trial judge in coming to court slipped upon the pavement, was seriously injured, and wholly incapacitated from taking any further part in the trial.

From the sixth to the eighth inclusive, the jury assembled each morning, when the case was adjourned to the following morning by the sheriff, the jury separating and mingling with the people of the' village. On the morning of the ninth, the jury being present, another judge of the subdivision adjourned the court until the sixteenth, the-jury going to their homes; upon which day, the jury being present, the court was .adjourned by the same judge until the twentieth, and the-jury again went to their homes throughout the county. On the twentieth the jury again was present, the second judge not being present on account of sickness, the court was again adjourned by the sheriff from day to day until the morning of the twenty-third, the jury dispersing each day, and going around through the village.

On the morning of the twenty-third a judge from another subdivision of the district, having been procured, was present and ordered1 the trial to proceed over the objection of counsel for the accused, on the ground that the trial, under the circumstances, could not further proceed, as it would be entirely irregular for another judge to take up-the trial at that stage; and that the jury having been so permitted to-separate and mingle with the people was presumably not a fair and impartial jury. The objection of the counsel for the accused was overruled and exception taken. The argument of counsel was made, the jury charged, a motion for a new trial overruled, and sentence passed by the judge sitting in the place of the original judge.

Was this irregularity in the proceedings of the court to the prejudice of the accused? Although it is claimed upon argument that the evidence was typewritten and delivered to the judge who presided at-the conclusion of the trial, this does not affirmatively appear, and from all that is known from the record the judge who was substituted had no-knowledge of the evidence whatever.

It seems to us that this was an irregularity in the proceedings of the court for which the judgment below must be reversed.

How could the trial judge who came into the case after the evidence was submitted preside during the argument? The argument is an important part of the trial. Arguments of counsel to the jury should be based upon tbe evidence, and be restricted to what was proven. Counsel should not be permitted to distort and misstate the evidence, and yet the presiding judge from the record had no knowledge of what the evidence was whatever. But if we were to assume that the trial judge had read the evidence the result would be the same. The appearance and demeanor of the witnesses upon the stand are very important factors in weighing evidence and gives counsel not only a great field for argument but in many cases for misrepresentation and improper denunciation. Did counsel fairly and properly represent the appearance and demeanor of the witnesses upon the stand in their arguments ?

He also charges the jury. The charge of the court should be directed to the facts of the case on trial. Abstract propositions of law are of little value to the jury and in many cases misleading. How could the presiding judge direct his charge to the facts when he heard none of the evidence? His charge must necessarily be determined by the facts as he learned them from counsel in their argument, which would be unreliable.

He further heard and passed upon the motion for a new trial, one ground of which, and no doubt, from the hearing before us upon error, the principal one, being, that the verdict was not sustained by the evidence. How could he pass upon the weight of the evidence; some of the witnesses were detectives, other officers, interested in the conviction of the accused ?

A trial judge from experience derives much benefit from seeing the witnesses. He can pretty accurately determine whether the witness is truthful or not from the manner in which he gives his testimony, which would be all important upon the hearing of a motion for a new trial. He sentenced the prisoner and the sentence was an exceedingly severe one for the grade of the offense, well up to the maximum. Did the evidence justify it ? Possibly so, but how could the trial judge so determine ?

The duties of the judge who took the place of the previous one required judgment in all these matters, and it seems to us that where judgment is required in the performance of the duties of the trial judge in reference to the facts, one judge cannot be substituted for another during the trial, although under the law the judge so acting under such change may have the same jurisdiction and power as the disabled judge.

In the case of Durden v. People, 55 L. R. A. 240, 241 [61 N. E. Rep. 317; 192 Ill. 493], Magruder, J., of the Supreme Court, says:

“It is well settled that ‘the argument of a cause is as much a part of the trial as the hearing of evidence.’ Meredeth v. People, 84 Ill. 479; * * * It is also a general rule, established by the weight of authority, that, in prosecutions for felonies, the continual ■ presence of the judge during the entire course of the trial is essential; and it is expressly held in many decisions that, in the trial of capital cases, the judge should not retire from the bench, even for a brief absence, without ordering a suspension of business until his return. 21 Enc. Pl. & Pr. 978, 979, and cases referred to in notes. It is claimed here, however, on the part of the, state, that, during the trial of this case, the bench was at no time vacant, because, as soon as one circuit judge left the bench, another circuit judge, having equal power and belonging to the same circuit, took his place. The court, it is said, was the same during the whole of the trial, although two different persons presided during the trial at different times. In justification of the proceedings here under consideration Sec. 62 of chapter 37 of our statutes, entitled ‘courts’ is referred to. That section provides that ‘judges of the several circuit courts of this state may interchange with each other and * * # may hold court or any branch of the court for each other, and perform each other’s duties, where they find it necessary or convenient. ’ * * * The vacation and substitution which took place in this ease find no justification in the section thus referred to.
“A prisoner on trial for his life is entitled to the judgment of the judge who has heard the evidence in the case and conducted the trial thereof. The instructions given by a judge must be based upon the facts and necessarily involve an application of the law to the particular facts of the case. Here the instructions given for the state were given by a judge who heard none of the evidence. Two instructions asked by the defendant were refused by a judge who heard none of the evidence. It is true that the absence of one judge from the bench before the close of the trial was followed by the presence of another judge of equal power and jurisdiction. It is also true that circuit judges may hold court for each other and perform each other’s duties where they find it necessary or convenient. But this does not involve the right or power of one judge to finish for another the performance of a duty already entered upon by the latter, when that duty involves the exercise of judgment and the application of legal knowledge and judicial deliberation to facts known to the latter and not known to the former. ’ ’

In this ease many authorities are reviewed and the opinion is an able one. The court in the syllabus held:

“A mistrial will result from a change of judge without defendant’s consent during trial of a criminal case when the argument to the jury is in progress, the new judge being required to read the defendant’s instructions to the jury which have been approved by his predecessor, and to pass upon those presented by the state, although the judges belong to the same circuit, and the statute permits such judges to interchange with each other and to perform each other’s duties.”

We do not hold that there are not certain preliminary duties, which a judge may perform, and the case afterward be continued and completed by a different judge, but that is not the ease under consideration.

Another question that is made is, that the jury being separated for -eighteen days during the time that the ease was not being tried, and scattered in different parts- of the county, it was error to proceed with the trial to that jury. Ordinarily it must appear affirmatively from the record that members of the jury have been approached, have heard improper remarks, or read something about the case in order to be grounds for a new trial. That prejudice will not be presumed unless it so appears. Under the facts disclosed in this ease we think improper conduct upon the part of the jury should be presumed and that prejudice resulted.- It is hardly possible that a jury could be at liberty for eighteen days in all parts of the county, without being cautioned, and under no surveillance, in a case exciting so much public interest as this, without at least some of the jurors being improperly influenced.

The charge in this case was murder in the second degree, involving liberty for life. Suppose the trial judge, in order to attend to some other business had adjourned the case for eighteen days and permitted the jury to separate and go to their homes, would it not be held that such a jury was incapacitated from further duty in the case ?

It seems to us that Sec. 7313 Rev. Stat. was enacted expressly to provide for a contingency like the one that arose in this case. That section provides:

“The court may discharge a jury, without prejudice to the prosecution, for the sickness of a juror, the corruption of a juror, or other accident or calamity, or because there is no probability of the jurors agreeing, and the reason for the discharge shall be entered on the journal

Here was an accident incapacitating the trial judge from proceeding in the case and the jury should have been discharged.

For these reasons the judgment of the common pleas court will be reversed and the case remanded for a new trial.

Laubie and Burrows, JJ., concur.


text:
    LIMITATION OF ACTIONS — VENDOR’S LIEN.
    [Lake (7th) Circuit Court,
    September Term, 1904.]
    Laubie, Cook and Burrows, JJ.
    Abbey J. Callender v. Oliver W. Basquin, Exr. of Rumina Valentine, Deceased, et al.
    Vendor’s Lien — Statute of Limitations.
    An action in equity to enforce a vendor’s lien, where there is no agreement in writing or other memorandum respecting 'the sale, except the deed of conveyance, and it contains no covenant or promise on the part of the vendee to pay the balance of the purchase money, is barred in six years.
    Error to Lake common pleas court.
    Homer Harper, for plaintiff in error:
    The vendee is trustee for the vendor until the purchase money is paid. 2 Pomeroy, Eq. Jurisp. Sec. 868; 3 Pomeroy Eq. Jurisp. Secs.' 1161, 1162, 1163.
    Am action on a lien is not lost by the running of the statute against the debt. 2 Wood. Lim. of Actions, Sec. 232; Lincoln v. Purcell, 39 Tenn. (2 Head.) 143 [73 Am. Dec. 196] ; Bizzell v. Nix, 60 Ala. 281 [31 Am. Rep. 38].
    G. N. Tuttle, for defendant in error:
    The claim should have been presented to the executor for allowance before suit brought, and so alleged in the petition. Sec. 6108 Rev. Stat.; Kinkead, Code Pl. 637; 1 Bates, Pl. & Prac. 444, 445; Erie Co. (TiWs.) v. Walker, 10 Re. 558 (22 Bull. 106) ; Hammerlee v.' Kramer, 12 Ohio St. 252, 253; Pepper v. Sidwell, 36 Ohio St. 456, 457.
    There is a material difference between a mortgage and a vendor’s lien, between an action to foreclose a mortgage and one to enforce such lien. Borst v. Corey, 15 N. Y. 505.
    Great precision is required in a bill to enforce a vendor’s lien arising out of parol contract. 22 Enc. Pl. & Prac. 719, 722; Mowrey v. Vandling, 9 Mich. 39; Bliss, Code Plead. Parties; Story, Eq. Pl. Sec. 175; Giauque, Decedents’ Estates 274, Sec. 45; Citizens’ Sav. Bank v. Ide, 10 Circ. Dec. 800 (20 R. 665).
    A bill in equity is not a proper method of settling estates. Bustard, v. Dabney, 4 Ohio 68.
    Vendor’s lien, and statute of limitations. Borst v. Corey, 15 N. Y. 505; 28 Am. & Eng. Enc. Law (1 ed.) 184; Secs. 4971, 4974, 4981 Rev. Stat.; Markoe v. Andras, 67 Ill. 34; Wood, Lim. of Actions Sec. 232; Kerr v. Lydeeker, 51 Ohio St. 240 [37 N. E. Eep. 267; 23 L. E. A. ■842]; Yearly v. Long, 40 Ohio St. 27, 34; Harrod v. Carder, 2 Circ. Dec. '274 (3 E. 479); Bryant v. Swetland, 48 Ohio St. 194, 206 [27 N. E. Eep. 100]; New York, L. E. & W. Ey. v. Siegfried, 3 Circ. Dec. 649, 654 (7 E. 33) ; Williams v. Williams, 5 Ohio 444, 445; Fee v. Fee, 10 Ohio 469, 474; Howk v. Minnick, 19 Ohio St. 462 [2 Am. Eep. 413]; Delaplane y. Smith, 38 Ohio St. 413; Douglas v. Corry, 46 Ohio St. 349 [21 N. E. Eep. 440; 15 Am. St. Eep. 604]; Pepper v. Sidwell, 36 Ohio St. 457.
    The statute of limitations as a ground for demurrer. Sturges y. Burton, 8 Ohio St. 215 [72 Am. Dec. 582] ; McKinney y. McKinney, 8 Ohio St. 423; Yore y. Woodford, 29 Ohio St. 245, 249; Williams v. Presbyterian Soc. 1 Ohio St. 478; Bissell v. Jaudon, 16 Ohio St. 498, ■503; Delaware Co. (Comrs.) v. Andrews, 18 Ohio St. 49, 67; Keithler y. Foster, 22 Ohio St. 27, 30. ¡
   COOK, J.

The action below was to enforce payment of a vendor’s lien. There was a demurrer to the petition which was sustained on the ground that the aim as shown by the petition was barred by the statute of limitations and final judgment was rendered dismissing the petition and for eosts.

The petition sets forth that on December 10, 1891, Abbey J. Cal-lender sold the premises by a parol agreement to Egbert Valentine for $2,900 and on that day executed to him a warranty deed for the same; that Egbert Valentine paid him $733 on the purchase money, leaving a balance unpaid of $2,167. Egbert Valentine died February 16, 1893, testate, devising the premises to Eumina Valentine, his wife, who elected to take under the will and went into possession of the premises with full knowledge of the claim of Abbey J. Callender. Eumina Valentine died November 20, 1900, testate, and by her will she appointed Oliver W. Basquin her executor, who duly qualified, and by the will portions of said premises were devised to certain devisees and the residue of the premises was inherited by her heirs. The suit is against the executor and all the devisees and heirs of Eumina Valentine.

The sole question made is: Did the court of common pleas err in sustaining the demurrer to the petition for the reason that the claim was barred by the statute of limitations ?

This question has not been directly passed upon by our Supreme Court, but was referred to in the opinion of Dickman, J., in the case of Yearly v. Long, 40 Ohio St. 27, in which he says:

“By the code of civil procedure, the distinction between actions at law and suits in equity was abolished, and for all such judicial proceedings the civil action is a substitute. Formerly in this state statute» of limitation embraced only remedies at common law, and not those cognizable in equity. But now, the lapse of time sufficient to bar the rem'edy, whether of a legal or equitable character, must be determined by reference to the statutory mandate.
“In seeking for the statutory rule of limitation applicable to the equitable charge under consideration, we cannot adopt the rule governing suits on mortgage liens. A mortgage is a conveyance of the legal estate, which in law would entitle the mortgagee to his action for the possession of the mortgaged premises. A civil action to enforce this, equitable charge, we do not think, can be classed among actions barred in twenty-one years ‘for the recovery of the title or possession of lands, tenements or hereditaments.’ A vendor’s lien perhaps bears a closer analogy to the equitable lien created by the testator’s will; and it has been held in New York and other states, that an action to enforce the equitable lien for the purchase money of land, is barred by the lapse of six years after the debt has accrued; that the debt is the basis or foundation of the lien, and with it the lien must stand or fall. Borst v. Corey, 15 N. Y. 505; Clyde v. Simpson, 4 Ohio St. 445, 462. ’’

In the case of Borst v. Corey, supra, it is said by Justice Johnson, page 508:

“It is true that, to sustain the suit in equity, the plaintiff must bring to his aid the equitable lien given by law, while the action at law can be sustained without reference to such lien. But the lien is merely an incident to, and must stand or fall with the debt. The debt is the basis or foundation of the lien. The latter cannot exist without, or independently of the former. In the suit to enforce the lien the cause of action, and the only substantial cause of action, is the debt.”

In an action to foreclose a mortgage it has been held by our Supreme Court that a mortgage is a specialty and comes under the fifteen, year provision of the statute, Kerr v. Lydecker, 51 Ohio St. 240 [37 N. E. Rep. 267; 23 L. R. A. 842]; and although the debt for which it is given to secure may be barred if an action was brought upon it at law, yet the suit in equity could be maintained. Fisher v. Mossman, 11 Ohio St. 42; Baily v. Smith, 14 Ohio St. 396, 411 [84 Am. Dec. 385]. But there is very little analogy between an action on a vendor’s lien and an action to foreclose a mortgage.

A claim for purchase money becomes a lien by operation of law-In this case, which is usual, there was no covenant or promise upon the part of the vendee, by the terms of the deed, to pay the balance of the purchase money, bis liability being that alone of a simple debtor to pay in full for the land he purchased, and also in this case the debt became due at once, there being no stipulation whatever for time in which to make the payment.

There is nothing in the petition in any manner tending to show that the transaction made a continuing and subsisting trust, and thereby took it out as the statute. Egbert Valentine did not hold the money or the land in trust for Abbey J. Callender, but she was simply a creditor of Valentine for the balance of the purchase money. "We think the court below did right in sustaining the demurrer to the petition and the judgment is affirmed.

Laubie and Burrows, JJ., concur.


author: HULL, J.

text:
    SHERIFFS — CONSTITUTIONAL LAW.
    [Erie (6th) Circuit Court,
    1904.]
    Parker, Hull and Haynes, JJ.
    Mary Childs v. Jay J. Perry et al.
    1. Section 1230b Relating to Sheriff’s Pees Unconstitutional.
    The act of April 25, 1898, 93 O. L. 426, Sec. 1230b Rev. Stat., relating to fees and compensation of sheriff in counties of 22,500 or more, is a law of a general nature which does not apply to several counties of the state, and is therefore in conflict with Sec. 26, Art. 2, Const., providing that all laws of a general nature shall have a uniform operation throughout the state.
    2. Sheriff not Entitled to Poundage on Mortgage Sale.
    A sheriff is not entitled to poundage on sheriffs sale under mortgage foreclosure proceedings where the property is bid in by plaintiff for less than the amount of her mortgage lien and where the purchase price is paid for in such lien in part.
    Error to Erie common pleas court.
    Malcolm Kelley, for plaintiff in error.
    E. B. King and G. C. Beis, for defendants in error.
   HULL, J.

The real party defendant in error is Henry Foster, present sheriff. This ease is brought to this court on a petition in error to reverse the order of the court of common pleas overruling a motion to retax costs.

The matter was heard below on an agreed statement of facts. It. appears from that, that the action was brought by the plaintiff to foreclose a mortgage; that there was due on her mortgage $9,858.18; that she bad tbe first lien on the premises in question; the property was sold by the sheriff and bid in by the plaintiff for $8,000; the sale was confirmed and the plaintiff paid in no part of the purchase money to the sheriff, her lien amounting to oyer $1,800 more than the purchase price, her bid. There was taxed poundage for the sheriff at 1 per cent on the amount of sale, to wit, $80. This was taxed under Sec. 1230b Rev. Stat. which provides for the fees of sheriffs in all counties having a population of 22,500 or more at the last federal census, and it is admitted in the agreed statement of facts that this county at the last federal census had a population of 22,500 and more, and that Ashland county, Geauga county, Harrison county and Noble county, and several other counties of the state had at the last federal census less than 22,500 population.

The plaintiff claims that this section of the statutes is unconstitutional, for the reason that it was not of uniform operation throughout the state, and that therefore its provisions are void, and that the sheriff must go to the general statute on this subject, to wit, See. 1230 Rev. Stat. If Sec. 1230b Rev. Stat. is constitutional the sheriff has the right to these costs, amounting to $80. If it is unconstitutional, he does not have the right to them.

The general statute, the one that has existed for many years, Sec. 1230 Rev. Stat., provided on the question of poundage as follows:

“ The fees and compensation of sheriffs shall be as follows: ” (Then omitting a part of the statute) “ poundage on all moneys actually made and paid to the sheriff on execution, decree or sale of real estate (except on writs for the sale of real estate in partition), one and a half per centum on the first thousand dollars, and one per centum on all sums over one thousand dollars; but when such real estate is bid off and purchased by a party entitled to a part of the proceeds, the sheriff shall not be entitled to any poundage except on the amount over and above the claims of such party.”

The fees and compensation of the sheriff generally are provided for in this section, which applies to all of the counties of the state.

Section 1230b Rev. Stat. is found in 93 O. L. 426, and was passed April 25, 1898. 'The caption of the section is,' “Fees and compensation of sheriff in counties of 22,500 or more. ’ ’ It provides as follows in regard to poundage:

“ In all counties which at the last preceding federal census had a population of twenty-two thousand five hundred or more, and for which there is no provision made by law for the payment of the sheriff, he shall receive the following fees and compensation: * * * Poundage upon the amount of all sales (except in writs for the sale of real estate in partition) made by the sheriff on executions, decree, or sale of real estate one per centum thereof.”

The general statute gave poundage only on all moneys actually made and paid to the sheriff on sales, while there is a provision, as will be observed, in the section for poundage on the amounts of all sales, regardless of the money made, or paid to the sheriff.

Is this Sec. 1230b in conflict with See. 26, Art. 2 of the constitution of the state which provides that all laws of a general nature shall have a uniform operation throughout the state ?

In State v. Yates, 66 Ohio St. 546 [64 N. E. Rep. 570], the Supreme Court say in the syllabus:

“ County officers are not local officers, but are a part of the permanent organization of the government of the state, and the subject of compensation to county officers is not local in its nature, and an act of the general assembly upon that subject is a law of a general nature which must operate uniformly throughout the state. Pearson v. Stephens, 56 Ohio St. 126, overruled.”

The question is discussed fully by Judge Davis in the opinion, and many former decisions referred to. This case came up from Pickaway eounty, an act had been passed fixing the salaries of the various officers in Pickaway county. Judge Davis in the opening paragraph of his opinion says, page 548:

“ These acts are undeniably special; and, to us at least, it seems almost as manifest that their subject-matter is of a general nature, and that neither of them contains the attributes of legitimate local legislation. They are special, because they are in terms restricted in their operation to Pickaway county. They are of a general nature, because the subject of legislation is a matter of general concern to the state, and to every county in the state and to the inhabitants thereof. Kelley v. State, 6 Ohio St. 272. They are not legitimate local bills, because the subject-matter is not peculiar to the localities named and it does not appear that 'there was any necessity for such legislation either in time, place or circumstance. Having said this, we have said, in substance, all that needs to be said to dispose of this case; but in deference to the authority which is urged in support of the contention of the defendant in error, we will be more explicit.”

The statute in question does not relate to a salary, but to the fees of the sheriff, a county officer. The same principle, however, applies as would apply were it a salary instead of fees, which are paid by the litigants, while a salary is paid by the county. It is clear that this law is of a general nature, and therefore should operate uniformly throughout the state.

As this law is framed it could not apply to several counties in the state, there being some ten or twelve of less than 22,500 population at the last federal census; among them, Ottawa, our neighboring county on the west. The statute does not provide that it shall'' apply to counties which may hereafter arrive at a population of 22,500,, but is restricted in its application absolutely to those which had such a. population at the last federal census preceding.

This law does not have a uniform application throughout the state. It is difficult to see how it can be claimed that a law which does not apply to ten or a dozen of the eighty-eight counties in the state has a, uniform application throughout the state.

The term “ uniform application ” is defined by Judge Burket in State v. Spellmire, 67 Ohio St. 77 [65 N. E. Rep. 619], as “.universal.’' Certainly this statute does not have a universal operation throughout the state.

Under the recent decisions of the Supreme Court, this statute is clearly unconstitutional; it is in violation of Sec. 26, Art. 2 of the constitution of the state. It is difficult to conceive of any reason why such, a law should have been passed. It is unreasonable and unjust as well as unconstitutional. There is no reason why the fees of the sheriff, for the same services, should not be the same in every county of the state. Why should the sheriff of Erie county be entitled to $80 costs in a foreclosure proceeding because the land happens to lie in this county, while in Ottawa, an adjoining county, the sheriff would be entitled to nothing for the same service?

The judgment therefore is reversed, and the case remanded to the court of common pleas, with directions to retax costs by striking out the general item of - poundage to the sheriff and taxing the costs according to the general statute, Sec. 1230 Rev. Stat.

Parker and Haynes, JJL, concur.


author: SWING, J.

text:
    HIGHWAYS — RAILROADS—NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    May 11, 1904.]
    Swing, J., and Dustin, J., of Second Circuit. No other judge sitting;.
    Norfolk & W. Ry v. Great China Tea Co. et al.
    Negligence or Railboad Company at Crossing Will not Excuse Traveler's' Neoligence.
    Neglig'ence of a railroad company in running a train of cars at a high-, rate of speed, and in failing to ring a bell when approaching and passing over a public crossing, will not warrant a recovery for damages resulting from a collision caused by plaintiffs voluntary negligence in failing to-exercise his senses of sight and hearing before attempting to pass over* the crossing. Balt. & O. Ry. v. McClellan, 69 Ohio St. 142, followed.
    Error to Hamilton common pleas court.
    Hollister & Hollister and W. A. De Camp, for plaintiff in error.
    Moulinier, Bettman & Hunt, Maxwell & Ramsey and John R. Schindel, for defendants in error.
   SWING, J.

This was an action in the court of common pleas for damages for the hilling of two horses owned by the tea company, and also injury to property of the tea company, which- resulted from a collision between the horse and wagon of the tea company and the engine of the railway company at a point on the P. C. C. & St. L. Railway Company, at Hazen street in the city of Cincinnati, Ohio. A trial was had in said court, which resulted in a verdict and judgment in favor of the tea company. To this judgment error is presented to this court.

There is very little conflict as to the material evidence in the case. S. B. "White was driving a delivery wagon belonging to the tea company, on December 10, 1901, between 9 and 10 o’clock a. m., and started to cross the said railway company’s tracks, going by way of Hazen street, from Eastern avenue to Gladstone avenue in the eastern part of Cincinnati. The approach to the railway company’s tracks on Hazen street was very steep, having a grade of from fifteen to twenty per cent. The street was not a main thoroughfare, being but little used on account of its steep .grade. White testifies that he started from Eastern avenue and drove up Hazen street to a point where the front feet of his horses were in the middle of the north track of the railroad, at which point he stopped and at which point he first saw the engine approaching on said north track, about two hundred feet away. He did not stop on his way up Hazen street, but kept constantly listening: and looking for approaching trains.

The evidence is conclusive that White could have seen the approach:-ing train 365 feet away at a point eighteen feet south of the south rail of the north track if he had looked, and it is equally certain that he did not look, for he says that he did not see the approaching train until the front feet of his horses were in the center of the north track, and at which time the train was about 200 feet away. If the front feet of the horses were in the center of the north track, they were, according to measurements, twenty-two and one-half feet from the point where the train could first be seen, and White could not have been more than ten feet back from the front feet of the horses; but say he was twelve and one-half feet back; he was still ten feet nearer the railroad track than the point from which he could have seen the approaching train before he even attempts to look for it. He says he looked and listened, but his ■own evidence and the undisputed evidence clearly shows that he did not.

There is evidence'offered by the tea company to the effect that no bell was rung by the railway company. There was also evidence offered by .the tea company that the train was running at a very high rate of speed, and these are the acts of negligence which the tea company claims are grounds for recovery. The jury had a right, we suppose, to believe this evidence, but granted that no bell was rung, certainly the noise of the train was present, and could have been heard by White long before he became aware that the train was approaching. It does not appear that any other noises were present to prevent his hearing the approaching train, and while he says that he listened, there is no way to escape the conclusion that he did not. So it seems certain that he neither looked nor listened at a point where he could have seen and heard the approaching train so as to have avoided the collision.

White was absolute master of his movements; there was no impending danger confronting him; and his horses were entirely under his control, and he voluntarily placed himself in the position where the collision occurred; in doing this he was clearly negligent. It matters not whether the railway company did not ring a bell or was running at a higher rate of speed than twenty miles an hohr, which is the usual rate of speed of trains at that point, it is clear that the negligence of the tea company was the cause of the accident, and not the negligence of the railway company.

The evidence does not support the verdict and judgment.

The case, we think, is governed by the decision of our Supreme Court. Baltimore & O. Ry. v. McClellan, 69 Ohio St. 142 [68 N. E. Rep. 816].

Judgment reversed and cause remanded for further trial.

Dustin, J„ concurs.


author: JELKE, J.

text:
    MUNICIPAL CORPORATIONS — INJUNCTION — PARTIES — LIBRARIES.
    [Warren (1st) Circuit Court,
    July, 1904.]
    Giffen, Jelke and Swing, JJ.
    Malinda Pullen v. John E. Smith et al.
    1. Resolution to Maintain Carnegie Library Within Inhibition of Burns Law.
    A resolution of a municipal council to maintain a free public library at a cost of not less than $1,000 a year, and to procure a suitable site therefor, which is responsive to the proposition of a private party to donate $10,000 to erect the library building, is a resolution involving the expenditure of public money, and is within the inhibition of See. 1536-205 Rev. Stat. (Sec. 45 Mun. Code) unless the certificate of the proper municipal officer that the money required therefor is in the city treasury to the credit of the proper fund is filed and immediately recorded.
    2. Taxpayer may Enjoin Unlawful Contract Under Sec. 1536-668 Rev. Stat., When.
    An action to enjoin the unlawful expenditure of public funds must be brought by the duly appointed legal officer of the municipality, as provided by Sec. 1777 (1536-667, 4 ed.) Rev. Stat., unless such officer has, upon due request of a taxpayer of the municipality, failed to do so, in which event such taxpayer may, under favor of Sec. 1778 (1536-668, 4 ed.) Rev. Stat. maintain the action on behalf of the corporation.
    Runyan & Stanley, for plaintiff.
    J. E. Smith, J. Morrow and W. C. Maple, contra.
   JELKE, J.

We find [in the cases, Malinda Pullen v. John E. Smith and William Evans v. John E. Smith] that the proposed use of the lot involved herein as the site for a public library is within the public and municipal use intended by the original donors of said lot:

A more serious question, however, is presented in the contention made by Mr. Evans, as a taxpayer, that the resolution passed by the Lebanon council, on July 7, 1903, contravenes the Burns law. Section 1536-205 Rev. Stat., 96 O. L. 37, Sec. 45. The issue thus arises: Mr. Carnegie made a proposition to the village of Lebanon in the following letter:

“2 East 91st St., New York, February 20, 1903.
“ W. Chester Maple, Esq., Lebanon, Ohio.
“Dear Sir:
“Responding to your communication in behalf of Lebanon. If the city agree, by resolution of council, to maintain a free public library at a cost of not less than one thousand dollars a year and provide a suitable site for the building, Mr. Carnegie will be pleased to furnish ten thousand dollars to erect a free public library building for Lebanon. 1
“Respectfully yours,
“Tas. Babtbam, Private Secretary.”

Which offer is.met by action of the Lebanon council on July 7, 1903, by the following resolution:

“Resolved, by the council of the village of Lebanon, state of Ohio, that the offer of Mr. Andrew Carnegie, made February 20, 1903, to furnish ten thousand dollars to erect a free public library, building for Lebanon is hereby accepted; and
“Resolved, Further, that the council agrees for and on behalf of said village to maintain said free public library at a cost of not less than one thousand dolars a year, and to provide a suitable site for the same; be it further
“Resolved, That we express to Andrew Carnegie the sincere gratitude of the village for this beneficent gift, and that the clerk is directed to transmit to said donor a copy of these resolutions, with a request for directions to this council for further mode of procedure.”

Section 1536-205 Rev. Stat. provides:

“No contract, agreement or other obligation involving the expenditure of money shall be entered into, nor shall any ordinance, resolution or order for the expenditure of money, be passed by the council or by any board or officer of a municipal corporation, unless the auditor of the corporation, and if there is no auditor, the clerk thereof, shall first certify to council that the money required for the contract, agreement or other obligation, or to pay the appropriation or expenditure, is in the treasury to the credit of the fund from which it is to be drawn, and npt appropriated for any other purpose, which certificate shall be filed and immediately recorded.”

It is contended on behalf of the library trustees, and it was decided. by the court below, that the resolution did not contravene the inhibition of this section of the statutes for two reasons: First, that it did not create an enforcible legal obligation against the village of Lebanon; and, second, that it was not an expenditure of money. It is admitted that the resolution of July 7 has not the binding force and effect of a contract, and it is said that it merely expresses the municipal sense, of policy'and has no binding effect upon subsequent councils; that it is only binding upon the moral sense and civic conscience of the citizens of Lebanon. This view of the resolution is taken by both sides of the controversy,-and that its provisions will be religiously kept, is asserted by both sides. _ !

We do not yield to.counsel or to anybody, in high appreciation of the conscience and sense of moral responsibility of the good citizens of Lebanon, but we take a view a little different from that entertained by the trustees and their counsel as to the time for its exercise.

There is no doubt but that, were it not for Sec. 1536-205 Rev. Stat., the letter of Mr. Carnegie and the resolution of council would constitute .an enforcible bilateral legal agreement,' and it is only because of this section of the statutes that it does not become such. The action of council purports to do that which the law says it cannot do, and it is because the law says that it cannot do this, that council should not go through •the form of doing, in good faith, a thing which is empty and vain. It is because such action, on its face, is committing the village of Lebanon to an unlawful position that council should not do it. Would it not be fairer and juster if the village of Lebanon said to Mr. Carnegie:

“We appreciate your kind offer and desire to avail ourselves of its beneficent provisions, and feel sure that the people of Lebanon, through their municipal officers, hereafter will keep the conditions imposed, but under the law we are powerless to commit the village to the conditions ■asked; but to the extent that it is declaratory of the public sense and policy of this municipality, we are willing to do so. We can, lawfully, go no farther. >'

To say that this action of council does not contravene this provision of the statutes, because such action of council is made invalid by this ■same section, is reasoning in a circle. And if this were sufficient answer to the objection, it would be a universal answer to all objections to actions by municipal councils not in accordance with this statutory provision, the very object of which statutory provision is to prevent such action by councils. It is to restrain municipal councils from purporting ■or pretending to do that which they are powerless to do, that such actions are enjoined.

It was held in the case of Elyria Gas & Water Co. v. Elyria (City), 57 Ohio St. 374, 375 [49 N. E. Rep. 335] :

“Where the proceedings of a municipal corporation are unauthorized and void, either for want of power or its unlawful exercise, and are ■designed to raise a fund by the sale of its bonds or by taxation to be applied to the object contemplated by the proceedings, a suit to enjoin them may be brought by a taxpayer, under Secs. 1777, 1778 Rev. Stat., without waiting until the fund is raised ready for expenditure. The ■abuse of corporate powers, within the purview of Sec. 1777, includes'the unlawful exercise- of powers possessed by the corporation, as well as the assumption of power not conferred.” .

Further, it will not do to say that this action does not involve the expenditure of money. If it does not do that, it does nothing else, and is meaningless. That is all that Mr. Carnegie asks. It is not in itself the expending of money, like an ordinance to pay, but the statute goes further; it provides against “a resolution involving the expenditure of money.” It is the initial step, which, if logically and consistently followed up, will inevitably result in the expending of public funds. It was held by the sixth circuit, in the case of Rhoades v. Toledo (City), 3 Circ. Dec. 325 (6 R. 9):

“A municipal ordinance, providing for the condemnation of private property for street purposes, is an ordinance for the expenditure of money within the meaning of Sec. 2702 Rev. Stat., and it is essential to the validity, of such ordinance that the city auditor duly make and file the certificate required by said section.”

This decision is based upon the case of Ryan v. Hoffman, 26 Ohio St. 109, 123:

“The ordinance condemning the land in question, is an ordinance for the expenditure of money.”

The circuit court for the second circuit, in the case of Tyler v. Columbus (City), 3 Circ. Dec. 427 (6 R. 224), takes a somewhat different view, for two reasons: First, that the money expended was to be as-, sessed back on the property, and therefore was not an expenditure of public money; and, second, that the sum was uncertain and indeterminate until after condemnation proceedings were had before a jury, neither of which criticisms apply to the expenditure contemplated, and the initial step of which has already been taken in the case at bar. It is idle and not frank to say that this resolution does anything other than involve the expenditure of money, and this is admitted by everybody when they talk about a moral obligation.

There is, however, an objection to the maintenance of this taxpayer’s suit which has not been raised by counsel for the defendants, and that is, that the suit is not brought under Sec. 1536-667 Rev. Stat. by the duly appointed legal officer of the municipality, nor is there an allegation that request had been made upon such officer, and that he has failed so to do as provided by Sec. 1536-668 Rev. Stat.

Notwithstanding this defect in the proceedings, which is probably fatal, and will necessitate a new suit if the objection is urged, we have thought it best to decide the questions submitted as, after all, that is what counsel and the citizens of Lebanon want.

We are of opinion that the action by the council of the village-of Lebanon is invalid and void, and that the trustees of the said library cannot proceed in reliance thereupon, and therefore should be enjoined.

We trust and believe that if this matter is put to the donor in its right light, that his gift may still be secured to the village of Lebanon. As it is, the matter cannot proceed further on its present basis.

Giffen and Swing, JJ., concur.


text:
    GAS AND OIL-t-EVIDENCE — LEASE,
    [Wood (6th) Circuit Court,
    April Term, 1904.]
    Parker, Hull and Haynes, JJ.
    Thomas H. Meek v. M. R. Cooney et al.
    Failtjbe to Pay Rent Renders On. and Gas Lease Void, When.
    Under an oil and gas lease providing that “in case no well is completed within ninety days from this date, then this grant shall become null and void unless second party shall pay first party five dollars for eaeh month thereafter said completion is delayed,” the lessee having done no drilling, within the time specified his failure to pay the monthly rental when it becomes due will render the lease void, unless it is shown by clear and convincing evidence that the lessor waived its payment; and after such default, lessee will be enjoined from drilling wells or extracting oil or gas from the premises.
    Appeal.
    Thos. F. Conley, for plaintiff.
    Andrews & Andrews and Baldwin & Harrington, for defendants.
   HULL, J.

This case comes to this court upon appeal from the judgment of the court of common pleas. The action was brought by the plaintiff, Meek, to enjoin the defendant from drilling an oil well upon his premises or extracting the oil or gas therefrom. .A temporary injunction was allowed by the court below, and upon a hearing to dissolve the injunction a number of affidavits were used, and upon that hearing, by consent of the parties, the lower court entered final judgment, and in this court, by consent of parties, the hearing was had upon the affidavits used in the court below.

The question is whether the plaintiff was entitled to the injunction that he asked for. He appears to be the owner of about forty-five acres of land in this county, and on September 14, 1901, he made a gas and oil lease to the defendant, Cooney, thereby granting to Cooney all the oil and gas in and under said premises. The lease contained this provision:

“In case no well is completed within ninety days from this date then this grant shall become null and void unless second party shall pay first party five dollars for each month thereafter said completion is delayed.”

No well was drilled within ninety days after the making of the lease, or ever drilled by the defendant or his grantee, the ninety days expiring December 14, 1901, and on March 11, 1902, the fifteen dollars rent then due was paid to the plaintiff, Meek, which paid the rental to March 14. No rent was paid to plaintiff after that time. But it is claimed it was paid to another for him. On the date of the commencement of this suit, January 10, 1903, ■ the defendant was about to drill a well upon the premises in question, and this the plaintiff sought to enjoin, making one Frank Wolf, who was to do the work for Cooney, a party also. Other persons had become interested in this property, but they are not made parties to this action'— the action being' between the original parties and Wolf. • It is claimed by the defendant, Cooney, that soon after January 14, 1902, it was agreed between him and Meek that the rent need not be paid monthly as provided for in the lease. ■ The defendant claims that the plaintiff said he preferred to let it accumulate until it amounted to some considerable sum, so that he could use it to better advantage.

Plaintiff denies having ever agreed that the payments need not be made monthly as provided for in the lease. In fact, he claims to have had need of the money as often as he could get it, at least once a month, and could have used it oftener. He appears to have been as poor as a man could be and own land in this county, and he denies that he ever agreed to defer the date of these payments.

The payment of.March 11, 1902, was the last one made directly to plaintiff. When the fourteenth day of April came, no rent was paid, five dollars being due at that time, unless the contract had been modified as claimed. Seven days after that, the twenty-first of April, Meek made another lease of these premises to Bankey & Moore, and on the eighteenth of June the defendant, Cooney, having heard of this lease to Bankey & Moore, visited Meek at his home in company with one Schroder, a justice of the peace, of that township, and offered Meek twenty dollars, which would have paid the back rental of three months to June fourteenth, and a month in advance. This money Meek refused to accept, and stated that he had leased the" premises to other parties. It is claimed by Cooney that though Meek .refused to accept the money, he agreed that it might be paid over for him to Schroder, 'whom Cooney seems to have taken with him as his counse}; and it is claimed by Cooney that he paid each month’s rent thereafter to Schroder for Meek, until this action was commenced. But Meek has never taken any of the money, or demanded, any of it from Schroder, and if it was paid to Schroder, it still remains in his hands. Affidavits were read on behalf of both parties, and we have reached the .conclusion that the defendant has not established his claim.

The provision in the contract is clear that this rent was to be paid monthly; unless it ‘was paid monthly, in ease no well was drilled in ninety days, the lease was to become null and void. To vary the written -contract the testimony should be clear and convincing. There is a conflict in the evidence. The witnesses for the defendant outnumber those offered by the plaintiff, but it seems to us that the weight of the evidence, ■considering all the circumstances, is in favor of the plaintiff against this claim of variation or modification of the contract.

No sufficient reason is given why Meek should have requested that this rent be not paid every month as provided for in the contract. He ■denies that any arrangement of that kind was ever made, and claims that it was only after much importuning on his part, that the fifteen dollars was in fact paid. The evidence shows he was badly in need of money; was old, poor and infirm, and we think that the claim of the defendant is unreasonable and not sustained.

Meek denies that he agreed that the money might be deposited with Squire Schroder for him. It is conceded that he has not accepted •■any money since March 14, 1902, nor is it claimed that he had ever asked ¡Schroder for any money. According to the terms of the lease, if no well was drilled in ninety days it became hull and void unless the rent was paid each month thereafter, and Meek had the right to so consider it and treat it, which he did by making a lease to the other parties.

The effect of a clause such as this in an oil lease is considered in the case of Van Etten v. Kelly, 66 Ohio St. 605 [64 N. E. Rep. 560]. “The court say in the opinion on page 610:

“The plaintiff below claims that the words, ‘unless second party shall pay to said first party thirty dollars each and .every month in advance while such completion is delayed,’ there lies a'promise to pay thirty dollars per month for such delay. This is not tenable. The full force and effect of this ‘unless’ clause, taken by itself, is, to give the lessee the option by making such payment to continue the lease in force to the end of the term without completing the first well, or upon failure to mqke such payment, allow the lease to become null and void at the •end of thirty days after the date of the lease.”

So that unless Meek had waived the conditions of the lease that the rent should be paid monthly, on the failure of Cooney to pay the rent when it .was due in April, the lease, in our opinion, became void. It is «aid that there was no consideration in any event for an agreement on the part of Meek to alter this contract, so as to waive the payments monthly; no new consideration moving to him. But if such an agreement was made between Meek and Cooney it would amount to a waiver •on. the part of Meek and he could not take advantage of this clause of forfeiture on tbe ground that rent had not been paid monthly; but we-think that the defendant has not established his claim that this contract was varied, and if that is true then the lease became void on the fourteenth of April when the default in the payment of rent occurred, and nothing occurred after that to revive the lease.

No well was attempted to be drilled until January, 1903, when this action was commenced, to enjoin. At this time the ninety days within which a well was to be drilled had long since expired, and the lessee-was in default for the rent, and had been since March of the year before, and had therefore lost his right to drill for oil on the premises.

By the “unless clause,” he had the privilege of keeping the lease-alive by paying the rent; this he failed to do and thereby lost his rights, under the lease.

An injunction will be granted as prayed for and the same decree entered as in the court below.

Parker and Haynes, JJi, concur.


author: PER CURIAM.

text:
    ACTIONS — EQUITY—EASEMENTS—ADVERSE POSSESSION.
    [Hamilton (1st) Circuit Court,
    August, 1904.]
    Giffen, Jelke and Swing, JJ.
    Tudor Boiler Mfg. Co. v. I. & E. Greenwald Company.
    1. Equity Will not Assume the Determination of Titles, as a General Rule-.
    Equity rarely assumes the determination of questions of title, but generally relegates the parties, in such cases, to courts of law before affording equitable relief. A fortiori, when the issues involved, such as “abandonment” and “adverse possession,” are peculiarly appropriate to an action at law, and triable to a jury, and would, if fairly submitted to a jury under proper instructions from a court of law, end .the controversy if plaintiff prevailed.
    * 2. Power of Equity to Entertain Legal Actions to Avoid Multiplicity ' or Suits.
    Discretionary power is invested in a court of equity, in order to avoid a .multiplicity of suits, to entertain actions which otherwise would be legal in their nature; but in all cases there must be a showing of the probability of such multiplicity of suits.
    3. Nonuser of Easement May or May not Work Abandonment.
    Nonuser of an easement for more than twenty-one years may, or may not be sufficient to indicate its abandonment, according to surrounding facts and circumstances which either weaken or strengthen it. An intention to abandon an easement for roadway purposes is shown by the following facts: nonuser for more than twenty-one years; the erection, by claimant, of a building which effectually destroys access to, and makes impossible any use of the way in question; the erection, by a second party and without objection of claimant, of a permanent sand shed at such place as to render it inconsistent with the existence of a way over the part occupied by it, and which is also a substantial obstacle to its access by claimant; and the fact that the way was, for several years, continuously and with claimant’s acquiescence, covered with cores and flasks from second party’s factory.
    4. Adverse Use of Easement by Owneb of Fee Shown, When.
    The owner of the fee has all the uses incident to the property not inconsistent with the dominant estate, and until the exercise of the easement is asserted', any use by the owner of the fee is not in itself adverse.
    5. Exercise of Dominion over Roadway Constitutes Adverse Possession.
    Adverse possession is shown by the exercise of dominion over a strip of land over which another claims a roadway, treating it as an appurtenant to adjoining property, erecting permanent buildings thereon, enclosing part of the way with a fence and paying no respect to its use as a roadway, for more than twenty-one years.
    ERROR to Hamilton common pleas court.
    Kinkead & Ellis and Paxton & Warrington, for plaintiff in error.
    Herron, Gatch & Herron, for defendant in error.
   PER CURIAM.

The arguments and briefs of counsel have substantially disposed of all questions involved herein, excepting three, which are:

First. Whether or not plaintiff can maintain this suit for an injunction.

Second. Whether or not the Tudor Boiler Manufacturing Company had abandoned this easement; and

Third. Whether this easement had been extinguished by the adverse possession of the I. & E. Greenwald Company.

On the first point, a majority of the court is of opinion that the issue involved herein ought not be tried in a court of chancery, unless the clearest necessity therefor appears. We have no doubt that a court of equity has a right to entertain this action, but it does not follow that plaintiff can maintain the same as a matter of right, and we are not satisfied as to the propriety of the court entertaining it.

The issues triable herein are first, that the abandonment, which turns up the issue of fact of the intention of the Tudor Boiler Manufacturing Company. This is an issue of fact peculiarly appropriate to an action at law, and triable to a jury. The issue of adverse possession turns upon the existence or nonexistence of the essential facts necessary under the laws of Ohio to constitute adverse possession. These issues of fact are likewise appropriate to a suit at law, and triable to a jury. All of these issues go to the question of title, and courts of chancery rarely assume the burden of questions of title, and even where equitable remedies are necessary, a court of chancery usually relegates parties to a determination of questions of title to a court of law before affording equitable relief.

It is claimed that the right to maintain this action herein rests, upon the expediency of avoiding a multiplicity of suits. This is a ground upon which a court of chancery may entertain actions which otherwise would be legal in their nature, but this is an appeal to the grace of a court of equity to take up and try matters admittedly legal in their nature. In order to invoke this intervention of a court of chancery, there should be a showing of the probability of a multiplicity of suits, and then ifr is for the court, upon finding such probability, to extend its grace, or not, as it deems wise in the interest of equity and justice. It is an appeal to the jurisdiction of the court of equity wherein the plaintiff admits that he has no standing as a'matter of right. In the ease at bar, the court finds no reason to believe that there will be a multiplicity of suits at law. On the contrary, we are of opinion that if the issues involved herein were once fairly submitted to a jury under proper instructions from a judge of a court of law and the plaintiff prevailed, it would end this controversy.

We are of opinion that plaintiff ought not to appeal to a court of equity to try these issues until it has established its title by at least one; action at law. The court does not come to this conclusion through any unwillingness to sustain the burden of deciding these issues, but because it feels that this cause turns upon such close and evenly balanced issues of fact that a satisfying determination of the same can only be reached by a submission to a jury. We are therefore of opinion^ that the plaintiff herein is not entitled to maintain this proceeding, and that an injunction should be denied, at least for the present, and that plaintiff should be required to first establish its present right of title, by at least one action at law.

Lest, however, we should be mistaken in this conclusion, the whole court has preferred to consider the essential questions submitted. The question of abandonment is purely one of intention on the part of the Tudor Boiler Manufacturing Company. This intention can only be ascertained from all the declarations and the aets of the parties coupled with the surrounding circumstances. The first significant fact is the nonuser by the Tudor Boiler Manufacturing Company, for a period longer than twenty-one years — clearly from 1857 to 1879. During this: time, without conflict in the testimony, the Tudor Boiler Manufacturing Company did not use this right of way in question. Nonuser for t.bia long period of time may or may not be sufficient to indicate an abandonment. In Nail & Iron Co. v. Furnace Co. 46 Ohio St. 544 [22 N. E. Rep. 639; 5 L. R. A. 652], it is held by the Supreme Court:

“If nonuser of such road may work an abandonment of it, the nonuser must be shown to have extended over a period of twenty-one years. ’ ’

Hence, nonuser, for a period of over twenty-one years, may itself be a sufficient fact from which to find the intention of abandonment. The nonuser for this period, however, may be accompanied by other facts- and circumstances which either weaken or strengthen it. In the case at bar we have the fact that un January 17, 1876, at a meeting of the directors and stockholders of the Tudor Boiler Manufacturing Company,, at which Mr. Isaac Greenwald was present, action was taken to notify the I. & E. Greenwald Company that the Tudor Boiler Manufacturing Company claimed the opening of a forty foot strip, running from their highway to Eggleston avenue, the rear of the ground purchased by them from Niles & Company, and they required said street to be opened. This is evidence tending to contradict any intention of abandonment. It does not -appear, however, that any formal action was taken to notify the I. & E. Greenwald Company — that they merely relied upon the fact that Mr. Isaac Greenwald was present, and was a member of the Tudor Boiler Manufacturing Company — and no formal steps were taken to open said street at law, and no physical action was taken to open said street in fact. It might be said, as to a third person, a ease “where actions spoke louder than words.” This is especially so, for at that time the relation existing between the Tudor Boiler Manufacturing Company and the I. & E. Greenwald Company was of the utmost cordiality, and it was to the interest of both these that these relations be maintained.

Subsequently, by resolution of the Tudor Boiler Manufacturing Company, the I. & E. Greenwald Company was charged one dollar per annum for the use of this right of way, and this annual charge of one dollar was paid for a number of years thereafter, in the course of mutual accounting of business transactions. This payment of one dollar per annum began in the year 1879. As set out in the brief for plaintiff, evidently the only value this payment has is that it “illustrates the-past, ’ ’ it being admitted that had the Tudor Boiler Manufacturing Company, by this time, lost this right of way by abandonment, such payment could not recreate it. As an illustration of the past, this annual charge has not the significance that it would -have if it stood alone. It is so involved in other business transactions of large proportion — a settlement of which was mutually desirable — that not much point would be made-of a small item of this kind, and among business men,'if it be yielded,, it might be for the purpose of buying peace.

As opposed to these circumstances, we have the fact that the Tudor Boiler Manufacturing Company erected an office building directly across the end of this forty foot strip; and by this building of its own construction, effectually shut itself off from access to the same, and from any use of the easement now claimed by it. The significance of this fact, on the part of the Tudor Boiler Manufacturing Company, is well illustrated by contrasting the case of Stokoe v. Singers with the case of Regina v. Chorley, 12 Q. B. 515, both of which cases involved the question of ancient lights. In the former, the windows were closed by a covering temporary in its nature; in the latter, the windows were closed ip a manner permanent in its nature. In the former, the court held that an intention to abandon was not thereby indicated. In the latter, on the contrary, the court held that the party, by its" action, had clearly indicated his intention to abandon his right to light. The ease at bar is one of an easement for roadway purposes, and the structure built by the Tudor Boiler Manufacturing Company is one which effectively shut its property off from all access to this roadway, and made the use of the same at this end impossible. It clearly indicates an intention upon the part of the Tudor Boiler Manufacturing Company to abandon this right of easement for a roadway in this forty foot strip. In addition, we have the existence of the sand shed, which was constructed by the I. & E. Greenwald Company, a permanent structure necessary to the latter’s business, and inconsistent with a right of way over the part of the forty foot strip covered by it, and a substantial obstacle to access at the end of said strip to and from it, and the property of the Tudor Boiler Manufacturing Company.

We have likewise the fact that during the period from 1857 to 1879, this forty foot strip was continuously covered with a greater or less number of cores and flasks.

We are now considering these- latter two items, not on the issue of adverse possession, but as collateral facts and circumstances, and the fact that they existed so long in plain view of the Tudor Boiler Manufacturing Company, so completely destroying any use of the roadway of this forty foot strip and without objection, and for the most part with the acquiescence of the Tudor Boiler Manufacturing Company, as indicating the attitude of mind, to wit, the intention to abandon on the part of the Tudor Boiler Manufacturing Company. Thus marshalling the facts as they appear on this issue, we find that a preponderance is clearly in favor of an intention to abandon on the part of the Tudor Boiler Manufacturing Company, and that the same became and was thereby abandoned, and no subsequent acts of. the parties has aver re-established it. •

A great deal has been said about the deeds from Fox and Long-worth, and it is claimed that the recitals in the same, accepted by the I. & E. Greenwald Company,'recognize these easements. Be that as it may, these do not affect in any way the question of intention upon the part of the Tudor Boiler Manufacturing Company.

We come now to the question of adverse possession. The facts which the defense herein relied upon to maintain this defense are not much in dispute. It is claimed, however, that the use by the I. &' E. Greenwald Company of this forty foot strip as a depository for their cores and flasks, in view of the fact that the I. & E. Greenwald Company held the fee of said strip, is not a user of the same, in its nature necessarily adverse to the easement claimed by the plaintiff. It is a familiar doctrine that, inasmuch as the owner of the fee has all the uses incident to a piece ■of property not inconsistent with a dominant easement, that until the exercise of such right or easement is asserted, any use by the owner of the fee is not in itself adverse.

This furnishes somewhat of an answer to the obstruction by the cores and flasks, but does not answer the interposition of the permanent, substantial sand shed, which by its very nature is a denial of any right of roadway use in this strip. Furthermore, at some time between 1857 ■and 1879, the I. & E. Greenwald Company built a substantial fence along the north side of this roadway, and continuously maintained the same.

It is extremely difficult, from the testimony, to determine whether or not any or all of these obstructions continued over the whole period of time, but we have no difficulty in finding that from 1857 to 1879 the I. & E. Greenwald Company exercised dominion over this strip and treated it practically as an appurtenance to their foundry, and paid no respect to any use of the same as a roadway. It is claimed that by ac■ceptance of the Fox and Longworth deeds, and in other ways, the I. & E. 'Greenwald Company admitted the title of the Tudor Boiler Manufacturing Company for this easement. Such an admission is hardly important and not at all controlling on the issue of adverse possession— adverse possession, by its nature, being to destroy an admitted title and to wrest away by physical holding property rights, the title to which may be in another. On this issue the court is not so strong in its.conclusion as on the issue of abandonment, but on this, too, we find in favor of the defendant.

We are therefore of opinion that an injunction should be denied.