author: By HORNBECK, J. By THE COURT.

text:
    BARHORST, Plaintiff-Appellant, v. THATCHER, Treas., Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County
    No. 5483.
    Decided October 17, 1956.

      Victor F. Schmidt, Columbus, for plaintiff-appellant.
    Samuel Devine, Pros. Atty., George R. Wolfe, Asst. Pros. Atty., Columbus, for defendant-appellee.
   OPINION

By HORNBECK, J.

This is an appeal from a judgment of the Common Pleas Court dismissing plaintiff’s petition.

Plaintiff sought to enjoin defendant from collecting an assessment against his property made by reason of an order of the County Commissioners of Franklin County, Ohio, for the construction of a water main on Markison Avenue, on which street the property of plaintiff is located. Plaintiff grounded his claim for relief in his petition upon the proposition that the assessment against his property is illegal in that he received no benefit from the so-called improvement, that the assessment is double taxation because he had already been charged for connecting his own water line and is prejudiced by reason of the double taxation and that the amount of the assessment is in excess of the one-third the value of the premises upon which it was assessed. This last claim is not urged by the appellant in this court,

Appellant, apparently by motion for judgment, expanded his claims as to the invalidity of the assessment against his property by asserting that the proceedings by which the assessment on his property was accomplished were contrary to the laws of the State of Ohio and the Fourteenth Amendment to the Constitution of the United States. That the Board failed to obtain jurisdiction to make the improvement upon which the assessment was levied in that in its resolution finding that the improvement was “for the purpose of preserving and promoting the public health and welfare and providing fire protection,” it acted without any factual evidence or support which act was contrary to the Fourteenth Amendment to the Federal Constitution. There were two other grounds upon which appellant relies, but they are substantially the same as immediately heretofore stated.

The defendant-appellee in his amended answer asserted that the assessment was levied according to the statutes governing County Water Supply Systems as set forth in Chapter 6103 R. C., and admitted that plaintiff had obtained a water permit to install a water main to his property from the Department of Sanitary Engineer of Franklin County, of date of April 10, 1945; that such permit was for a temporary line and was granted after request and waiver in writing by plaintiff and another, under date of March 28, 1945, which waiver in so far as pertinent, is as follows:

“Your permission is hereby asked for the construction of a 2 inch water service connection with the water main of Franklin County at S. E. Post Lockbourne & Markison across Lockbourne Rd. thence extending North 25' to Markison (along the West side of Lockbourne then West on Markison) across________a distance of about 150 feet to the property of the undersigned.
“Said service pipe is hereby agreed to be a temporary pipe line for the purpose of supplying water to the property now owned by the undersigned, and We hereby agree for ourselves, our heirs, successors and assigns, that no claim shall be made for exemption for the property supplied by said temporary pipe line from any future assessment that may be levied on account of the construction, maintenance or operation of any public water main or pipe for which said property would be liable if said temporary pipe line had not been constructed and that We will not oppose or object to the construction at any future date of a permanent main in Markison or elsewhere adjacent to the property.”

There is no claim that the provisions of the Code are unconstitutional under which the proceedings were had by which the assessment was levied against the property of plaintiff, but that the Board did not have before it at the time of the original resolution or at any time in subsequent resolutions any factual basis for the determination that the proposed improvement was for the “purpose of preserving and promoting the public health and welfare and providing fire protection,” as provided by §6602-17 GC, now §6103.02 R. C.

If this question could properly be raised by the appellant, we are satisfied that the Commissioners had sufficient information or could take judicial notice of facts upon which the essentials to jurisdiction could have been determined. Although the description of the improvement requested by the petitioners does not appear in the record, it is manifest that it was before the Commissioners. This Board had general knowledge of the sewer district in which the proposed improvement was to be effected. It also had knowledge or could take judicial notice, as the Board with authority to grant the relief requested, that no other like improvement was then available to the petitioners. Although it did not at the time of the initial resolution have before it, the detailed plans and specifications thereafter prepared by the Sanitary Engineer, it later had them and also the approval of such plans and specifications by the Board of Health of the State of Ohio. These facts and inferences to be drawn from them were sufficient to support the determination of the requisites to proceed with the assessment.

Notices were sent to property owners affected by the proposed improvement and full opportunity given to objectors, in writing, three in number, to be heard. Two individuals, one of whom was the plaintiff, objected orally to the improvement and the Board found that they had signed waivers at the time they were permitted to install private lines and refused to consider their objections.

In our opinion, the appellant did not prove that the County Commissioners did not or may not have given consideration to facts upon which that Board could predicate its finding that the proposed improvement was necessary for the purpose of promoting public health and welfare and providing fire protection. Appellant, to establish his contention in this regard offered the testimony of Desso T. Mitchell, County Sanitary Engineer, who had a duplicate copy of the records of the County Commissioners relative to the proposed improvement. After setting out the original petition, the various resolutions respecting the improvement, at page 18 of the record this question was propounded and answer made:

“Q. Aside from the approval of the plans, is there anything that was passed upon by the Board of County Commissioners relative to the promotion of the public health?
“A. Not to my knowledge, there is nothing in here.”

And, at page 29:

“Q. (By Mr. Schmidt) One more question, Mr. Mitchell, do you have— is there anything in the record there in addition to what you have read to us of any fact or basis in fact bearing on the promotion of the preserving and promoting of the public health?
“A. I know of nothing, no, sir.
“Q. Is there anything in the record that you have there or the record bearing in addition to what you have read into the record on the public welfare?
“A. Nothing that I know of.
“Q. Is there anything in the record which you have in addition to what you have brought to the attention of the Court bearing on the matter of providing fire protection?
“A. Nothing that I know of.”

The Sanitary Engineer is not the officer authorized bylaw to keep the records of the Board of County Commissioners, although it is manifest that he did have copies of the resolutions incident to the improvement in question. However, it is manifest that his testimony is but a conclusion respecting the ultimate issue, namely, whether or not the Board of County Commissioners had at any time before it any fact upon which it could base the essential jurisdictional determination.

The original petition in this matter was filed with the County Commissioners on March 15, 1950. The first resolution of the Commissioners was of date June 5, 1951. At that time the resolution recited that general plans for the water and the sewer district, Marion No. 1, had been approved by the Board and then there is the finding that it is the opinion of the Board that it is necessary for the purpose of promoting public health and welfare to construct certain water mains in said sewer district, Marion No. 1.

The Board had more than a year within which to give consideration to this petition for the improvement. Manifestly, the best evidence upon the determinative issue whether or not it had given any consideration to facts relating to the question whether or not the improvement would be for the purpose of promoting public health and welfare and fire protection should have come from the members of the Board themselves. After this first resolution, two other resolutions were passed, covering the period of time up to October 16, 1951, and there is nothing in the record respecting the determinative question but the formal resolutions of the Board. Thus, in addition to the facts which we have heretofore indicated, which the Board could consider upon the questions essential to the jurisdiction, is the possibility, not removed by the evidence, that the Board may have considered other factual developments.

We hereinafter discuss the effect of the waiver which had been signed by appellant at the time he was given permit to install a private water line on his property. It is our opinion that if there was any. failure on the part of the Commissioners to require proof on the public health and welfare aspect of the improvement, it was not of sufficient consequence to render their action void, because they had some basis, at least, for the determination which they made. That being true, any objection to this jurisdictional finding should have been made by an appeal or in some other way provided by statute.

In the consideration of what is meant by the public in proceedings wherein it is sought to levy special assessments against property owners, we refer to the language of Judge Robinson in State, ex rel. Shafer, et al., v. Otter, County Surveyor, 106 Oh St 432:

“If the word ‘public’ in connection with public use, public health and public welfare is to be given the interpretation of meaning .all the people of a particular political subdivision, there are but few of the public improvements authorized by statutes that are not prohibited by Section 19, Art. I, for such improvements in a great majority of instances are of little concern to the majority of the public, as defined by that standard, but are of vital interest to a neighborhood, a portion of the public, less than a political subdivision.”
“It has been the policy of this state and the policy of this court, especially in the matter of public ditches, public drainage and public water courses, to treat the word ‘public’ in that section of the Constitution as meaning that portion of the public affected by such improvement.”

That brings us to a consideration of the waiver heretofore quoted although in view of the fact that we have held that the Commissioners had support for their jurisdictional finding, it is not dispositive of this appeal.

It is said in 92 C. J. S. 1068, that waiver covers every conceivable right; that it is a general rule that a person may waive any matter which affects his property. Appellant urges that the waiver did not preclude his action to enjoin the payment of the assessment against his property because he agreed only that “no claim should be made for exemption for the temporary pipeline for any future assessment that may be levied if said property would be liable if said temporary pipeline had not been constructed.” That is to say, unless a valid assessment is levied against plaintiff’s property, his waiver would not bind him. Plaintiff’s contention as to the effect of this waiver thus far is sound. But the waiver continues:

“and that he will not oppose or object to the construction at any future date of a permanent main in Markison or elsewhere adjacent to the property.”

This language precluded the action which was thereafter taken by plaintiff in the proceedings before the County Commissioners and which was essential to the protection of his right of appeal. Sec. 6602-3B, GC, now §6117.09 R. C. Plaintiff had two other possible remedies, a suit on the equity side of the court or at law, §12075 GC, now §2723.01 R. C., by which he could upon proper showing enjoin an illegal levy or collection of the assessment in the Court of Common Pleas. It was essential to a suit in equity that it appear that he had no adequate remedy at law. Although the action under §2723.01 R. C. is legal, it has been held that the remedy is equitable in character and to be granted on equitable principles. Steese v. Oviatt, 24 Oh St 248; McBride v. University Club. 112 Oh St 69; Stephan v. Daniels, 27 Oh St 527. Any action that plaintiff might institute would be based upon an objection to the proceedings resulting in the construction of the main requested by the petitioners and prevented by his waiver.

The case of State, ex rel. Bowman v. Board of Commissioners, Allen County et al, 124 Oh St 174, although not strictly in point, is helpful because it held that the plaintiff in that action could not maintain his case in the absence of a showing of the unconstitutionality of the legislation under which the proceedings were had, — to install a sewer improvement. Two propositions in the syllabus of this case are pertinent:

2. “Systems for water supply and storm and sanitary sewers, to be established in thickly populated districts outside of municipalities, have a real and substantial relation to the public health and the public welfare.”

Decided December 3, 1956.

4. “Such legislation is not rendered invalid by reposing in County Commissioners a discretion in determining whether conditions in a given locality will justify the improvement.”

The Federal cases cited by the appellant are not controlling of his rights as to the improvement sought to be enjoined.

We therefore hold no assignment of error to be well made and that the trial judge was correct in dismissing plaintiff’s petition.

The judgment will be affirmed.

MILLER, PJ, WISEMAN, J, concur.

No. 5483.

OPINION

By THE COURT.

An application for rehearing has been filed directed to our opinion of October 17, 1956, and entry journalizing it of October 25, 1956. The application is filed as of November 13, 1956.

Our rules now make no provision for an application for rehearing. Under the rule formerly applicable such applications were required to be filed within ten days after the opinion. So that, under the present rule or prior rule, the application is not in order.

Finally, upon the merits of the application, we see no sufficient basis to justify its allowance. Application will be denied.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.


source: Caselaw Access Project

author: By HUNSICKER, PJ.

license: Public Domain

text:
    DOTY, Plaintiff-Appellee, v. WEST, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5505.
    Decided October 31, 1956.

      L. Dennis Marlowe, Delaware, for plaintiff-appellee.
    McLeskey & McLeskey, Columbus, for defendant-appellant.
    (HUNSICKER, PJ, of the Ninth District; FESS and DEEDS, JJ, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By HUNSICKER, PJ.

This is an appeal on questions of law.

On August 26, 1950, Boyd P. Doty, herein called Doty, filed in the Common Pleas Court of Montgomery County an action to recover a real estate broker’s commission. Doty claimed he was the procuring cause of a sale made by the owner, Robert West, herein called West, with whom Doty had entered into an oral contract to secure a purchaser for the property.

After the action was filed in Montgomery County and a praecipe for service upon West was issued the sheriff of that county made his return showing residence service upon West and, no answer or other pleading being filed, in due course a default judgment was entered against West. On December 6, 1950, the Montgomery County Common Pleas Court, after hearing, quashed the “pretended service of summons” upon West and vacated and held for naught the default judgment theretofore rendered against West.

Nothing further was done with respect to that action filed in Montgomery County until March 3, 1954, Doty voluntarily dismissed the action without prejudice.

In the meantime, to wit, on January 8, 1954, Doty filed an action in the Common Pleas Court of Franklin County and in due course service of summons was had upon West. We must note that this action was commenced nearly two months before the Montgomery County action was dismissed by Doty.

Mr. West, by way of answer, claimed a pending action against him between the same parties involving the same cause of action and denies the claims made by Doty for the broker’s commission.

The trial court proceeded to try the issues to a jury. At the conclusion of all of the evidence each party moved for a directed verdict but counsel for West expressly reserved the right to submit the issues to a jury in the event his motion was overruled. The trial court then directed a verdict for the plaintiff-appellee, Boyd P. Doty, and Robert West then perfected an appeal to this Court.

We first must determine whether or not the action in Montgomery was a pending action of such nature as to prevent the prosecution of the action in Franklin County.

The courts in Ohio have not clearly defined a pending action; however, in the early case of Joseph Bowry & Sons, et al, v. Odell & Brother, et al., 4 Oh St 623 at 627, the court said:

“A common-law action cannot be said to be pending before mesne process is issued * * *.”

Under the statute §2305.17 R. C., commencement of an action is defined. See also “Actions,” 1 O. Jur. 2nd, Section 309, et seq.

In the instant case there was, after the action of the trial court of Montgomery County, no praecipe for service of summons filed and the petition only was there lodged in the office of Clerk of Courts without further activity on the part of counsel for Doty. We believe an action is not pending until it is commenced as provided for by the statute.

On this feature of the case we hold that there was no action pending in Montgomery County as alleged by West in his first defense.

We next consider whether the evidence warranted the trial court in directing a verdict for the broker and thereafter entering the judgment herein for the amount prayed for in the petition.

We do not have cause to complain about the well established rule that permits a trial court to direct a verdict where reasonable minds can come to but one conclusion. In this case, however, after a careful survey of the bill of exceptions we find some very conflicting matters of evidence which in our judgment could not be resolved in the way in which the trial court concluded them.

There is no testimony respecting the terms of the oral agreement to permit Doty to sell the property. Was this agency contract an exclusive right to sell or an exclusive agency or what was it? No time limit as to the agency is fixed, and there is no provision testified to by anyone that would permit the broker to collect a commission -from the seller after the agency had terminated.

There is testimony by West that he terminated the agency of Doty about December 15 by a letter written to Doty saying he was cancelling the Doty agency arrangement and employing one Truett, a real estate broker in the Village of Worthington. There is evidence that Truett put his sign on the property for Doty says he saw this sign. Was Doty still the agent after this action on the part of West and was Doty the agent when West sold the property in the early part of January after West claimed he wrote the letter of December 15 telling Doty he was taking the sale of the property out of the hands of Doty? The evidence on this point is in conflict for West testified one way on direct and another way on cross-examination.

These questions were all resolved by the trial judge in favor of Doty and in doing so he obviously weighed the evidence. In weighing the evidence, directing a verdict for Doty and thereafter entering judgment on the verdict such trial Court committed error prejudicial to the substantial rights of appellant West. We have examined all other claims of error and find none prejudicial to the rights of the appellant.

The judgment herein is reversed and the cause remanded to the Court of Common Pleas for further proceedings.

Judgment reversed and cause remanded.

FESS and DEEDS, JJ, concur.


author: By CONN, J.

text:
    STATE, Plaintiff-Appellee, v. NOOKS et, Defendants-Appellants.
    Ohio Appeals, Second District, Greene County.
    No. 569.
    Decided November 8, 1955.
    George R. Smith, Pros., Xenia, for plaintiff-appellee.
    Robert K. Schoecraft, Xenia, for defendants-appellants.
    (CONN, J, of the Sixth District, sitting by assignment in the Second District.)
   OPINION

By CONN, J.

The defendants, Ralph Nooks and Titus Nooks, were each indicted for the alleged offense of grand larceny under authority of §2907.20 R. C.

One Ralph Tate was also indicted and charged with the same offense.

Following the said indictments and pleas of not guilty, and before trial, on motion of the State and under authority of §2945.13 R. C., the defendant Ralph Tate was granted a separate trial and assigned a separate trial date. The trial court further ordered that the trial of defendants Ralph Nooks and Titus Nooks proceed as previously scheduled. The State called Ralph Tate as its own witness who was permitted to testify over the objection of defendants. The jury returned a verdict of guilty and fixed the value of the property taken at $400.00. Motion for new trial was overruled and the defendant Ralph Nooks sentenced to the Ohio Reformatory; the defendant, Titus Nooks, was sentenced to the Ohio Penitentiary, each for indefinite terms of one to seven years.

Defendants have appealed to this court on questions of law from said judgments and assign as errors prejudicial to defendants, the failure of the trial court to sustain defendants’ objection to the testimony of Ralph Tate; the overruling of defendants’ motions for acquittal at the close of the State’s case and at the close of all the evidence; and that the judgment entered was contrary to law and against the weight of the evidence.

First error assigned. The defendants contend for the application of the rule that where two or more defendants are jointly indicted, declarations and admissions made by one under such indictment after his arrest, and in the absence of the other, are not admissible against the latter.

In the instant case, the defendants were not jointly indicted, and on motion of the State, the court ordered that the defendant, Ralph Tate, be tried separately from the defendants Ralph Nooks and Titus Nooks, pursuant to §2945.13 R. C.

Moreover, the character of the testimony of Ralph Tate was not a confession. His testimony was a recital of certain material facts, within his personal knowledge, and related to the taking and carrying away of certain personal property of the complaining witness. It is our opinion that this assignment of error is not well taken and should not be sustained.

The two remaining errors assigned go to the weight and sufficiency of the evidence. The verdict of guilty returned by the jury is supported by the evidence received at the trial. On the issue raised on this assignment of error, this court does not have the duty to weigh the evidence. That is the province of the jury. It is the duty of this court “to determine whether the verdict and/or judgment is supported by the degree of proof which the character of the case requires * * *.” Cooper v. State, 121 Oh St 562. It does not appear that the judgment of the trial court is manifestly against the weight of the evidence or that defendants sustained any prejudice by reason of the errors assigned; nor does it appear that defendants were prevented from having a fair trial.

In the light of the conclusions we have reached, it follows that the judgment of the trial court should be affirmed and it is so ordered, and that this cause be remanded to the trial court for execution of sentence.

MILLER, PJ, HORNBECK, J, concur.


author: By SCHNEIDER, J.:

text:
    OHIO DEPOSIT GUARANTEE FUND, etc., Appellant, v. DZIAMBA, Deputy Supt., etc., Appellees.
    Common Pleas Court, Hamilton County.
    No. A-152998.
    Decided August 17, 1956.

      Edwin G. Becker, Walter L. Tarr, for appellants.
    John A. Scanlon, Amicus Curiae representing Bond Hill Building Association Company.
    William H. Deddens, Amicus Curiae representing Lincoln Building Association and Overlook Savings and Loan Company.
    C. William O’Neill, Atty. Geni., William A. Carroll, Asst. Atty. Geni., for appellees.
   OPINION

By SCHNEIDER, J.:

This matter comes before the Court on appeal from the action of N. J. Dziamba as deputy superintendent of the Division of Building and Loan Associations of the State of Ohio. The appellants are the incorporators of the Ohio Deposit Guarantee Fund, a proposed Ohio corporation not for profit, to consist of twenty-five or more Building and Loan Associations incorporated under Ohio law.

On November 22nd, 1955, articles of incorporation were filed by appellant with the Secretary of State. These articles were transmitted by the Secretary of State to the office of the Superintendent of Building and Loan Associations for his certification as required by statute. After lengthy hearings by the superintendent of Building and Loan Associations the said superintendent on April 4th, 1956, formally refused certification. This appeal was subsequently filed under the administrative procedure act.

The evidence shows after articles of incorporation were filed one of the three incorporators, Everett W. Townsley, died on March 23rd, 1956. The appeal herein was filed by the two remaining incorporators. A motion seeking dismissal of the appeal on that ground has been filed. The Court is of the opinion that this motion is not well taken and should be overruled.

The action of the Superintendent refusing certification is based upon certain language of the statute, namely, that the “Best interests of the public will not be promoted.” Assuming the statute gives the right to and establishes the duty of the commissioner to inquire into the proposed method of operation of the new company the Superintendent heard testimony of various witnesses and examined the provisions of a proposed constitution and by laws. The Superintendent then listed eight specifications as objectionable and sufficient to justify his refusal to certify.

The first is that there has been provided no standard for membership. It seems to the Court the standard of membership was fixed by law definitely and clearly and that no valid objection exists here.

The second objection is that expulsion of members is fixed in the discretion of the trustees. This would be the exercise of a right implied in the law since the statute does not provide that any other authority should have this discretion. If, in the future exercise of such discretion the trustees act arbitrarily and unreasonably there is ample remedy under the law, in the Courts, on the part of either the affected member or any other members of the corporation or of the Superintendent himself.

The third objection is that the fund proposes to guarantee all withdrawal monies without limitation. The sole purpose of the Legislature in making possible a corporation of this type is to guarantee the liquidity of its member associations. Here again, if the corporation, or its members, conduct themselves in a manner which would jeopardize such liquidity or the financial soundness or security of anyone of the associate members, the Superintendent has ample authority under the law to take necessary action.

The fourth objection is that the corporation proposes to give authority to a majority of its trustees to require member companies to amend their individual constitutions and bylaws and to remove and replace members of boards of directors without approval or supervisory authority. Such authority is inherent in the proper performance of its sole purpose and function, which is to secure liquidity of its individual members, in the interests of depositors, members and the public generally. Any exercise of such power, except in the furtherance of its statutory duties and its announced purposes, and detrimental to the fundamental intent of the law, may be curbed by the Superintendent of building and loan associations of the State of Ohio, who has ample power under the law to intervene.

The fifth objection is that the proposed constitution and by-laws deny supervisory powers of the Superintendent over the guarantee corporation. The Court is unable to understand how this could be possible in view of the express provisions of the statute giving specific power and authority to the Superintendent for such supervision.

The sixth objection is that only two of the original incorporators survive and this has been previously dealt with.

The seventh objection is that the proposed constitution has no provision for a vote of shareholders of a proposed member. It seems sufficient to repeat that if any action of any board of directors of any building and loan association is contrary to law or inimical to the best interests of such building and loan association the Superintendent has ample power to intervene.

The eighth objection is stated to be the “Potentialities of the proposed guarantee association becoming a holding company.” The Court is not clear in what the Superintendent means by holding company. The statute itself authorizes any deposit guarantee association to loan money to a member association and to buy any assets owned by a member association and to issue its capital notes or debentures to member building associations. It is conceivable that such a deposit guarantee corporation would necessarily then become the holder of assets of the individual member corporations, in the very normal operation of its function.

The basic objection of the Superintendent is that the proposed corporation would function without interference, without restraint, without restriction and beyond control of the Superintendent of building and loan associations. The opinion of this Court is that there is no justification for such concern. The statute gives the absolute right of the Superintendent to make investigations and examinations and inspections of any such guarantee company in the same manner as he is empowered to supervise and control the operation of all member building associations. Any abuse of authority, power or discretion on the part of such guarantee association may be dealt with as completely and adequately as with any member building and loan association. To refuse certification of the articles of incorporation on such ground would be to defeat the very purpose of the legislative enactment.

Under this appeal the Court may affirm, reverse, vacate or modify the order of the Superintendent. The court may not substitute its judgment for that of the Superintendent.

The Court is of the opinion that the judgment of the Superintendent on which he bases his refusal to certify is not supported by the record, is based upon speculation, and is contrary to law and his decision will be reversed.

This action of the Court in reversing the decision of the superintendent is not in any sense to be construed as an endorsement or approval, in advance, of any particular business procedure or of any provisions which may be included in the constitution and by-laws of the appellant corporation when such are adopted in the course of its business. If any provisions written into the constitution and by-laws of the appellant, either originally or later by amendments, or if the'business practices are or should become contrary to the public interest, or inimical or contrary to the legal purpose of the association as defined by the law, the superintendent then has ample and sufficient power to intervene and take necessary action.

The clear purpose of the legislative will is to permit corporations not for profit, to be formed under the general corporation laws of the State by a minimum number of Ohio building and loan corporations, for the sole purpose of exercising the powers set out in §1151.87 E. C. There is nothing in the record herein to show that the articles of incorporation filed by appellant are not correct in form and substance; nothing to show that the proposed corporation is being set up other than as a corporation not for profit; there is no provision for issuing stock; there is no claim that the purpose of the corporation is for a business other than that of assuring the liquidity of member building and loan associations and guaranteeing deposits therein; nothing to indicate that the general fitness and character of the incorporators are such as to fail to command the confidence of the general public and there is nothing to support the judgment of the superintendent that the best interest of the public will not be promoted by the establishment of the appellant corporation. There is nothing in the general corporation laws which requires that a proposed constitution and by-laws be filed with the- articles of incorporation or charter.

It appears to the Court that to refuse certification because of certain provisions or lack of provisions in a proposed constitution and by-laws, would constitute an arbitrary and discriminatory act. It would be as unreasonable as to deny incorporation on the theory that a corporation might, at sometime in the future, amend, or change its constitution or by-laws in a manner unsatisfactory. The legislature did not provide that the superintendent shall predetermine any method of operation but it did very definitely provide for reports and examinations so as to assure the superintendent full supervision of its operations.

The action of the superintendent in this case suggests that his objection is basically to the legislation itself. Actually a corporation, such as the one proposed, constitutes a double check upon each individual Building & Loan Association member inasmuch as the deposit guarantee association will necessarily be constantly alert, as is the superintendent of building and loan associations, in checking the liquidity and financial strength of all its member corporations thereby giving added protection to the depositors and certainly promoting the best interests of the public.

An entry may be presented in accordance with this opinion.


author: By THE COURT.

text:
    FEIEL, Plaintiff-Appellee, v. GRIFFITH, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5494.
    Decided April 23, 1956.
    McClelland & DeVennish, Columbus, for plaintiff-appellee.
    John H. Cooper, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

Submitted on motion of the plaintiff-appellee seeking an order dismissing the appeal for the reason that no assignments of error, bill of exceptions or briefs have been filed in accordance with Rule VII of this Court.

The record reveals that notice of appeal on questions of law was filed on February 7, 1956, but that nothing further has been filed to date, to wit, April 19, 1956. It therefore appears that the time for the filing of a bill of exceptions has expired. The requirements under §2321.05 R. C., are mandatory. Tenesy v. Cleveland, 133 Oh St 251. However, a bill is not necessary in all cases and since it appears that counsel handling this matter deceased on February 10, 1956, this fact would constitute good cause for failure to file assignments of error and brief in accordance with Rule VII. We will overrule the motion at this time and, should counsel desire to proceed further on the record, it is ordered that a transcript of the docket and journal entries, assignments of error and brief be filed on or before May 5, 1956.

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating.


author: By McCRYSTAL, J.

text:
    FROST BAR, INC., Plaintiff, v. SHAKER HEIGHTS (City) et, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 662198.
    Decided January 16, 1957.
    Dan W. Duffy, Bernard Friedman, Stanley Gilson, for plaintiff.
    Ralph W. Jones, Law Director, for defendant.
    (McCRYSTAL, J, of Erie County, sitting by designation in Cuyahoga County.)
   OPINION

By McCRYSTAL, J.

The plaintiff is an Ohio corporation engaged in the business of selling ice cream, and frozen desserts from refrigerated automotive vehicles better known to the public as the “good humor men.” Plaintiff is now engaged in selling its products on the streets of the City of Shaker Heights, Ohio. On June 21st, 1954 the City Council of Shaker Heights enacted an ordinance entitled Section A-114 which reads as follows:

“Section A-114. Sales of merchandise to children on public streets prohibited.
“No person, firm or corporation shall, upon any public street or public ground within the City of Shaker Heights, sell, offer for sale, expose for sale, or attract or attempt to attract the purchase of, by any minor person under the age of eighteen years, any merchandise, food, beverage, refreshment, confection or other property of any kind.
“No license now or hereafter issued for any sale within the City shall permit sale in violation of the provisions of this section.
“Any person, firm or corporation who shall violate any of the provisions of this section, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall for the first offense be fined in any amount which, together with the cost of prosecution does not exceed Fifty Dollars ($50.00), and for a second or subsequent offense shall be fined not more than Five Hundred Dollars ($500.00) or imprisoned for not more than six months, or both.”

Plaintiffs have filed a petition praying that the court hold that said ordinance is invalid and null and void and enjoin the city from enforcement.

Legislation seeking to prohibit “good humor men” and other vendors who do business on the streets is not new in Ohio or elsewhere. Annotations: 105 A. L. R. 1051; 163 A. L. R. 1334; see also 35 A. L. R. (2) 358. The courts of Ohio have with some consistency ruled such legislation invalid. Frecker v. Dayton, 88 Oh Ap 52; 153 Oh St 14; Frecker v. Zanesville, 35 O. O. 237; 72 N. E. (2d) 477; Schoul v. King, 70 N. E. (2nd) 378; contra XOCel Dairy v. Akron, 63 Oh Ap 147. The ordinances in the reported cases in Ohio which have been held invalid have in general attempted to prohibit in specific terms the sale of ice cream products on the streets and public grounds and have not been a general prohibition against the sales of other merchandise on the streets. The ordinance of the City of Shaker Heights in effect is a prohibition against the selling to any person under the age of 18 of any merchandise and it goes further and prohibits the attracting the purchase of any merchandise by any person under the age of 18. It was generally conceded by the City Solicitor of Shaker Heights and by the Chief of Police in his testimony that the ordinance would prohibit the plaintiff corporation from dispensing its merchandise on the streets.

The plaintiff maintains and correctly so that the effect of the ordinance would be to destroy its otherwise lawful business. The question of the wholesomeness or purity of its products for human consumption and any other health regulations is not in issue or in dispute in this case. The issue of discrimination as between the plaintiff and other similar ice cream vendors which was raised as an issue in some other Ohio cases has not been raised here. See Schoul v. King, supra; Frecker v. Dayton, supra.

The defendants rely primarily on §715.24 R. C., as authority for enacting this ordinance. The pertinent parts of this code section which is titled “auctioneering” reads as follows:

“Any municipal corporation may:

A.........

B.........

C Regulate, license or prohibit the selling of goods, merchandise or medicines on the streets.”

The question of the meaning of Section c of this statute is not new in the courts. In Frecker v. Dayton, supra, and Schoul v. King, supra, it has been held that this section of the statute does not give municipalities the power to prohibit the selling of merchandise on the streets but that it pertains solely to the subject of “auctioneering” and its related problems. The Frecker case was admitted to the Supreme Court on a motion to certify filed by the City of Dayton and that court, in a 4-3 decision, affirmed the Court of Appeals and the Court of Common Pleas, but in its opinion did not expressly determine the meaning of Section C of §715.24 R. C. While this court agrees with the decisions in the Frecker and Schoul cases insofar as they pertain to §715.24 R. C., it is not prepared to say that municipalities in Ohio do not have authority to prohibit the sales of some merchandise to certain minors on the streets or public grounds; but whatever authority it has in this respect was not delegated to it by §715.24 R. C.

Assuming that a municipality has the authority to regulate the sale of merchandise on the streets to minors, the question arises as to whether this ordinance is a valid exercise of that power. By statute in Ohio it is illegal to sell certain articles of merchandise to minors, such as intoxicating liquor, guns, drugs, tobacco, etc. See Chapter 2903 R. C., §§4301.22, 4301.69, 4727.10 R. C. Municipalities generally in a valid exercise of their police power can pass ordinances prohibiting and regulating the hours that minors can frequent dance halls, pool rooms and other places of amusement and courts have been reluctant to question the hour or the age classifications incorporated in said ordinances, holding that such classifications should be left to the legislative authority. See Annotations 48 A. L. R. 154; 60 A. L. R. 173.

The instant ordinance is not directed toward a product that is inherently dangerous to a minor or to situations or places which might corrupt the morals of a minor. The preamble of the ordinance here indicates that its purpose was to prevent children running in the streets to the vendor and thereby creating a traffic hazard and endangering their own lives. The purpose of this ordinance is identical with the purpose of other ordinances in Ohio and elsewhere which have been held invalid. The Ohio courts in the “good humor” cases have in effect said that barring legislative authority a municipality cannot prohibit a business otherwise lawful from operating because children will be attracted to it, thereby creating a traffic hazard and endangering their own lives. However, courts have generally held that municipalities have the authority to regulate street sales of this nature as to hours of sales, location of sales, and even to prohibit sales on certain thoroughfares. See Annotations 105 A. L. R. 1052; 163 A. L. R. 1334.

It is the opinion of this court that this ordinance is an unreasonable exercise of municipal police power in that it prohibits the sales of any merchandise to any person under the age of 18 on the streets or on the public grounds of the City of Shaker Heights; and further, it prohibits the sales of any merchandise which might attract a person under the age of 18 on the streets or public grounds within the City of Shaker Heights. It seems inconceivable although legally possible under this ordinance, that the City of Shaker Heights is going to prohibit the milkman and the baker from selling his merchandise from his truck. The same might apply to the vendor of fruits and vegetables during certain seasons of the year. It can be argued that the milkman and the baker and vegetable vendor might not attract as many children as the “good humor man,” but this ordinance if enforced properly and fairly would encompass those occupations. This court can take judicial notice that minors under the age of 18 are permitted to marry in this state and are permitted to drive automobiles and bicycles and motorcycles on the streets. It would appear somewhat ridiculous to say to the 17 and 16-year old minor that he can get married, drive a car, seek gainful employment in factories or stores, but he cannot buy any merchandise on the streets or other public grounds in the City of Shaker Heights.

This court is aware that the presence of the “good humor man” on the street attracts younger children into the streets and that younger children by virtue of their age and appetites are inclined to be somewhat reckless in crossing the streets and that the safety hazard created by children crossing the streets for any purpose is greater or less, depending upon the flow of traffic on said streets.

This decision is not to be construed as holding that an ordinance regulating the sales of merchandise to children of certain ages on certain streets and at certain times would be invalid; but the classifications and regulations in such ordinances would have to be reasonable and directly related to the hazards involved in each municipality. As stated in the third syllabus of Froolich v. City of Cleveland, 99 Oh St 376: “The state and municipalities may make all reasonable, necessary and appropriate provisions to promote the health, morals, peace and welfare of the community. But neither the state nor municipality may make any regulations which are unreasonable. The means adopted must be suitable to the end in view, must be impartial in operation and not unduly oppressive upon individuals, must have a real and substantial relation to their purpose, and must not interefer with private rights beyond the necessities of the occasion.” See also Olds v. Klotz, 131 Oh St 447; 6 O. O. 129.

The ordinance in question does not meet any such standards and is unreasonable and goes beyond the police power of a municipality to regulate public safety and public health.

The court therefore finds that Section A-114 of Ordinance No. 4902 of the City of Shaker Heights is invalid, null and void and of no force and effect and that a permanent injunction is hereby granted the plaintiff enjoining the City of Shaker Heights from the enforcement of said ordinance.


text:
    LIBERTY CLUB, Appellant, v. BOARD OF LIQUOR CONTROL, Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5441.
    Decided October 22, 1956.
    William H. Brooks, Columbus, for appellant.
    C. William O’Neill, Atty. Geni., S. Noel Melvin, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

By THE COURT.

This is a law appeal from a judgment of the Common Pleas Court affirming the order of the Board of Liquor Control revoking the appellant’s Class D-4 liquor permit, which was grounded upon the following-charges, to wit:

“No. 1.
On Sunday, March 20, 1955, at or about 5:30 o’clock A. M. EST, you and/or your agent or employee did sell in and upon the permit premises intoxicating liquor, to-wit, malt beverages in excess of 3.2% of alcohol by weight and whiskey — in violation of provisions of the Liquor Control Act and regulations of the Board of Liquor Control,”
“No. 2
On March 20, 1955, you and/or your agent or employee did sell in and upon the permit premises intoxicating liquor, to-wit, whiskey, to a person who was not then and there a member of your organization — in violation of provisions of the Liquor Control Act and regulations of the Board of Liquor Control,”
“No. 3.
On March 20,1955, you and/or your agent or employee did knowingly allow in and upon the permit premises improper conduct to-wit, loitering of intoxicated persons — in violation of provisions of the Liquor Control Act and regulations of the Board of Liquor Control,”
“No. 4.
On March 20,1955, your permit premises were in an insanitary condition — in violation of provisions of the Liquor Control Act and regulations of the Board of Liquor Control,”
“No. 5.
On March 20, 1955, you and/or your agent or employee did sell, offer for sale or possess in and upon the permit premises intoxicating liquor in an original container which had been diluted, refilled or partially refilled — in violation of provisions of the Liquor Control Act and regulations of the Board of Liquor Control.”

The errors assigned may be epitomized generally, to wit:

1. The decision of the Board of Liquor Control was contrary to law.

2. The decision is not supported by the proper degree of proof.

With respect to the first specification counsel for the appellant urges that the mere fact that intoxicated persons were permitted on the permit premises for a period of time, approximating some four and one-half hours, is insufficient to establish that there has been a violation of Regulation No. 52, which provides:

“No permit holder shall knowingly or wilfully allow in, upon or about his licensed premises improper conduct of any kind, type or character * * *.”

This rule was adopted in accordance with the provisions of §4301.03 R. C., which authorizes the Board to adopt:

“Rules, regulations, and orders providing in detail for the conduct of any retail business authorized under permits issued pursuant to such chapters, with a view to insuring compliance with such chapters and laws relative thereto, and the maintenance of public decency, sobriety, and good order in any place licensed under such permits.”

It appears to us that one of the purposes of the regulation is to insure that the business on permit premises shall be conducted according to law. Permitting intoxicated persons on permit premises is in violation of §4399.16 R. C. Therefore, we hold that permitting such conditions to exist on permit premises constitutes a violation of Regulation No. 52.

It is next urged that the Board erred in admitting into evidence certified copies of the criminal court record showing that the persons complained of in Charge No. 3 had pleaded guilty to the charge of intoxication. This evidence was not the best evidence and probably was not admissible under the provisions of §2317.42, R. C. but even if it were not it could not have been prejudicial, in our judgment, as it was merely corroborative since there was considerable other probative evidence establishing the fact that the persons alleged were found on the premises in an intoxicated condition. We find this assignment of error is not well taken.

We have examined the entire record made before the Board and are of the opinion that its order is supported by the proper degree of proof; hence the judgment of the Common Pleas Court will be affirmed.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.


author: By BEERY, J.,

text:
    BURNS et, Plaintiffs, v. FOX et, Defendants.
    Common Pleas Court, Montgomery County.
    No. 105097.
   OPINION

By BEERY, J.,

Shelby County sitting by assignment.

It is unnecessary to repeat the facts in this case as Counsel for both parties have fairly stated the facts in the briefs submitted to assist the Court in arriving at a decision in this matter.

It is needless to state the entire law with respect to easements as this court is of the opinion that the only foundation upon which an easement in this case could be created would be based upon what is termed an easement by implication or way of estoppel by reason of the recitations in the deed from Evelyn W. DeWeese to the plaintiffs, Edgar Nelson Burns and Florence Elizabeth Burns, which deed is dated August 10th, 1939, and recorded in Deed Book No. 879 at page 526 of the Deed Records of Montgomery County, Ohio, together with the deed from Evelyn W. DeWeese to Ruth Ailes, dated May 27, 1939, and recorded in Deed Book 873 at page 170 of the Deed Records of Montgomery County, Ohio.

Both of these deeds describe the properties conveyed by metes and bounds. The conveyance to the plaintiffs herein is as follows:

“* * * the following described real estate, situate in the township of Harrison, County of Montgomery, and State of Ohio, and being part of a fifty (50) acre tract of land conveyed to Evelyn W. DeWeese by deed recorded in Deed Book 488, page 389, of the records of Montgomery County, Ohio, in Section 16, Town 2, Range 6 East, and being more particularly described as follows: Starting at an iron pin in the East line of DeWeese Parkway and in the north line of an unnamed street, said iron pin being fifty (50) feet north of Harley W. Spitler’s tract of land as recorded in Deed Book 715, page 578, of the Montgomery County records; thence northwardly along the east line of DeWeese Parkway and along a curve to the left, having a radius of four thousand nine hundred eighty-two and 73/100 (4982.73) feet, a distance of six hundred five and 13/100 (605.13) feet to the point of tangency, as marked by a City of Dayton concrete monument; thence north 17° 12' west the tangent to said curve, a distance of one hundred forty-one and 75/100 (141.75) feet to the point of curvature, as marked by a City of Dayton concrete monument; thence northwardly along a curve to the right, having a radius of two thousand nine hundred twenty-four and 09/100 (2924.09) feet, a distance of eighty-nine and 99/100 (89.99) feet to a stake at the intersection of the north line of an unnamed street and the east line of De-Weese Parkway, said stake being the place of beginning of this description; thence northwardly along a curve to the right, having a radius of two thousand nine hundred twenty-four and 09/100 (2924.09) feet, a distance of one hundred and eighty (180) feet to a stake, said point being the southwest corner of Earl G. Fox’s lands; thence north 72° 50' east along Fox’s south line, a distance of three hundred fifty-five and twenty hundredths (355.20) feet to a stake; thence south 11° 31' east, a distance of one hundred eighty and 27/100 (180.27) feet to a stake in the north line of an unnamed street, a distance of three hundred and fifty (350) feet to a stake and the place of beginning, containing one and 46/100 (1.46) acres, more or less.”

The description as contained in the deed to Ruth Ailes is as follows:

“* * * the following described real estate, situate in the Township of Harrison, County of Montgomery, and State of Ohio, and being a part of a fifty (50) acre tract of land in Section 16, Town 2, Range 6, East, conveyed to Evelyn W. DeWeese by deed recorded in Deed Book 488, page 389, of the Montgomery County records, and being more particularly described as follows; Starting at an iron pin in the east line of DeWeese Parkway and in the north line of an unnamed, street, said iron pin being fifty (50) feet north of Harley W. Spitler’s tract of land as recorded in Deed Book 715, page 578, of the Montgomery County records; thence northwardly along the east line of DeWeese Parkway and along a curve to the left, having a radius of four thousand nine hundred eight-two and 73/100 (4982.73) feet, a distance of six hundred five and 13/100 (605.13) feet to the point of tangency, as marked by a City of Dayton concrete monument; thence north 17° 12' west along the tangent to said curve, a distance of ninety-one and 71/100 (91.71) feet to a stake and the place of beginning of this description; thence north 17° 12' west along said aforementioned tangent, a distance of fifty and 04/100 (50.04) feet to the point of curvature, as marked by a City of Dayton concrete monument; thence northwardly along a curve to the right, having a radius of two thousand nine hundred twenty-four and 09/100 (2924.09) feet, a distance of thirty-nine and 96/100 (39.96) feet to a stake; thence north 72/ 48' east, a distance of three hundred and fifty (350) feet to a stake; thence south 16° 02' east, a distance of ninety (90) feet to a stake; thence south 72° 48' west, a distance of three hundred and fifty (350) feet to the place of beginning, containing 0.72 of an acre, more or less.”

On June 28, 1941, Evelyn W. DeWeese conveyed to Howard L. Wingerter, who purchased on behalf of Earl G. Fox, the defendant herein, two pieces of land approximately one hundred feet by one hundred fifty feet each, both lots fronting on the north boundary of said unnamed street and immediately to the east of the land of the plaintiffs, Edgar Nelson Bums and Florence Elizabeth Burns, and by subsequent conveyance these two lots were placed in the name of defendant, Earl G. Fox.

Sometime after the plaintiffs herein purchased their property in August of 1939, they constructed a home upon the land they purchased, and so built their garage, and an embankment along the driveway to their said garage, that the entrance to the garage was fronting on the unnamed street. Since the completion of plaintiffs’ home in 1939 or 1940, they have continuously used said unnamed street as a means of ingress and egress to their garage.

On April 23, 1952, James A. McFarland purchased more land as owned by Evelyn W. DeWeese immediately to the East of the land of the plaintiffs, Edgar Nelson Burns and Florence Elizabeth Burns, which land included the fifty by three hundred fifty foot unnamed street herein at issue.

On August 5, 1952, the defendant Earl G. Fox purchased from James A. McFarland the same fifty by three hundred fifty foot unnamed street, and on August 18, 1952, the defendant Fox drove several poles upon the entrance of the plaintiffs’ driveway in said unnamed street, which denied plaintiffs the right of egress and ingress to their garage from and to the unnamed street.

The action herein is for an injunction against the defendant, Earl G. Fox, to enjoin him from further denying the plaintiffs their right of ingress and egress. If plaintiffs herein have an easement, the injunction should be granted; otherwise, not.

The unnamed street was never dedicated to public use.

There are contentions made as to the agency of Roland DeWeese, in making representations as to the unnamed street. This Court is of the opinion that this is of no importance because Evelyn W. DeWeese did execute the deeds describing the premises conveyed in which the unnamed street was mentioned. Since Evelyn W. DeWeese signed these deeds, it is presumed that she knew what the deeds contained, and therefore, is bound by the intention set forth in the deeds.

In Kneisel v. Krug, 8 Ohio Decisions Reprint, 581, it is stated as follows in the syllabus:

1. A. conveyed to B. a lot bounded on the south by an alley three feet wide. At the same time, the ground on the south was owned by A., and was used as an alley in connection with B.’s lot: Held, A., and his assigns, are estopped to deny that B. and his assigns have a right of way in the ground described as an alley appurtenant to B’s lot.

2. An assignee of A., purchasing at a time the alley is not used in connection with B’s lot, but making no inquiry as to the reason, is not thereby relieved from this estoppel.

3. The doctrine of loss of easements by increase of burden, has no application to appurtenant rights of way.

In 15 O. Jur., 53 and 54, paragraph 39, it is stated as follows:

“Bounding Land By Way — Where land is described in a deed as bounded by a way, street, road, or stream, the boundary is the middle line thereof. If the deed expressly gives a right of way over the way or stream, the grantee obviously acquires such right of way by express grant. Frequently, however, the conveyance calls for a way, street, road or stream as a boundary, without expressly giving a right of way therein. In such a case, if the grantor has the fee of the land thus referred to, he is estopped as against his grantee, to deny that it is a way, street, road, or stream; and an easement therein passes to the grantee by implication. It has been said that where the call for a way is not needed to complete the description of the land conveyed, it is presumed that it was put in for the purpose of estopping the grantor from denying the right of way.
“Where the grantor does not own the land described as a way, there is nothing upon which the estoppel can act, for obviously it cannot operate upon the lands of a stranger. If the grantor owns the land described as a street, the fact that the street is not used by the public is immaterial. It is a matter of private right, and in no way depends upon the fact that the public have or have not acquired the right of way. A deed which described one boundary of a lot as running along the line of a certain alley or street grants a right of way therein which is not in gross, but inures to subsequent owners, even though there is no actual improved alley or street there.
“The right to take advantage of the estoppel arising by the description of a lot as bounded on a street or way is confined to the grantee and those claiming under him, and is of no avail in favor of other abutting owners on the alley, who are seeking to have the alley opened. The deed, however, is competent evidence for such third parties as an admission.
“There is some authority to the effect that the creation of a right of way from a call for a way as a boundary rests upon covenant. It has been said that a grant of land to a way of any sort is an implied covenant by the grantor that, so far as his rights extend, the way exists and will remain as an open way. Most of the cases, however, seem to rest such an easement upon estoppel. In one case the doctrine of implied covenant is denied, and it is said that such a description does not operate as a covenant that grants a right of way unless there are words of covenant in the deed.
“The estoppel applies even though the way called for is a private alley. It has been held, where A conveyed to B a lot bounded on the south by an alley 3 feet wide, and at the same time the ground on the south was owned by A, and was used as an alley in connection with B’s lot, that A and his assigns were estopped to deny that B and his assigns had a right of way in the ground described as an alley appurtenant to B’s lot. But bounding land by the head of an alley does not give the grantee a right to use the land as an alley.
“It has been said that the right to the use of the way extends not merely to the portion thereof in front of the lot granted, but to its entire length. In another early case it was also stated that the purchaser of a lot calling to bound on a contemplated or existing street, not yet accepted as a street by the public authorities, was entitled to a right of way over it, if it was part of the lands of his vendor, to its full extent and dimensions until it reached some other street or public way, but no further.
“The grantee in a deed which describes the premises conveyed as bounded on a street named is bound to take notice of the existence of such street, and he is charged with such knowledge as to the location of the street as he could obtain by reasonabl inquiry.”

The Court under the authorities cited is clearly of the opinion that Evelyn W. DeWeese and her assigns, one of whom is the defendant, Earl G. Fox, herein, are estopped to deny that the plaintiffs. Edgar Nelson Burns and Florence Elizabeth Burns, have a right of way in the ground described as an unnamed street.

Counsel for defendant further contends that the plaintiffs herein have no standing in a Court of equity inasmuch as a part of their building is projecting upon the unnamed street, and further contends that plaintiff herein have so placed gravel upon the unnamed street causing the flow of water to be diverted from its natural course over and upon the property of their neighbor, Theodore Suttmiller.

It is definitely established that the plaintiffs do have a building projecting upon the unnamed street but there was some dispute in the evidence as to whether or not plaintiffs herein caused the water to be diverted from its natural course to the damage of the property of Suttmiller or at least that plaintiffs herein purposely caused said water to be diverted upon Suttmiller’s property.

The evidence did reflect that there was never any complaint made with respect to the building of plaintiffs’ projecting upon the unnamed street until shortly after the purchase of the property by the defendant, Earl G. Fox, herein, when Mr. Fox made a request that the building be removed by plaintiffs. Nevertheless, it was not indicated by the evidence ‘that any damage was being done to the defendant, Fox, by the building of plaintiffs’ projecting upon the unnamed street.

It is stated in 21 O. Jur. 1029, paragraph 31, as follows:

“A mere technical fault producing no substantial injury does not call the rule of ‘clean hands’ into operation.”

In McGuire v. Caskey, 62 Oh St 419, it is stated as follows:

“Where neighboring proprietors of urban lots are bound by a covenant in a deed, under which both held, not to erect buildings within a prescribed distance from the street upon which the lots abut, either is entitled to an injunction to enforce observance of the covenant by the other.”
“That relief will not be denied to a plaintiff because he has erected a porch in front of his residence and within the prescribed distance from the street when the purpose of the covenant is to secure and preserve the desirability of the street for private residence, and the porch does not substantially interfere with the easement of neighboring proprietors for light, air and view.”

The Court, therefore, is of the opinion that since no substantial injury was done to defendant Earl G. Fox, the defendant cannot bring this doctrine into operation.

With respect to the water, if any, diverted upon the property of Suttmiller by the plaintiffs herein, it is stated in the case of McClanahan v. McClanahan, 79 Oh Ap 231, as follows:

“A defendant in an equity action may not avail himself of the defense of ‘unclean hands’ on the part of the plaintiff, where the questioned conduct of the latter affected third persoñs and not the defendant, and where the application of such defense would result in unjust enrichment of the one asserting it.”

The Court, therefore, is of the opinion that even had it been shown that the plaintiffs negligently diverted the water upon the property of Suttmiller to Suttmiller’s damage, that would be no defense to the defendant, Earl G. Fox, herein, because there is no relationship or privy as to diversion, of water between Suttmiller and the defendant Earl G. Fox. An action with respect to such diversion of water would have to lie between Suttmiller and the plaintiffs herein.

The Court, therefore, is of the opinion that an easement by estoppel over the unnamed street has been granted to the plaintiffs herein, and that the defendant, Earl G. Fox, should be permanently enjoined from obstructing said driveway and unnamed street and from any interference with plaintiffs’ ingress and egress of their property over said driveway upon condition that the plaintiffs shall, within thirty (30) days after the entry in accordance with this decision is filed, remove that portion of the building projecting upon the unnamed street.

Counsel for plaintiffs herein may prepare an entry accordingly, and ordering that costs shall be taxed equally to the plaintiffs and defendants.


author: By HORNBECK, J.:

text:
    BURNS et, Plaintiff's-Appellees, v. FOX et, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2295.
    Decided April 20, 1955.
    Gregory C. Karas, Ronald H. McDonnell, Jr., Dayton, for plaintiffsappellees.
    Floyd F. Koogler, Eugene B. Bacher, Otterbein Creager, Dayton, for defendants-appellants.
   OPINION

By HORNBECK, J.:

We have considered the issues drawn by the pleadings; have read the record and the excellent briefs of counsel on this appeal. We also have been favored with the written opinion of Judge Beery, who tried the cause in the Common Pleas Court. Cases such as this have no general interest, because the facts are peculiar to the situation developed between these parties. Although this appeal is de novo, and we enter judgment upon weighing the evidence, we are satisfied that it would serve no good purpose to restate the facts, discuss and differentiate the many cases which are cited and commented upon at length by counsel We are in accord with the decision and judgment in the Common Pleas Court, and with the reasons factual and legal stated to support the judgment. The cause, in our opinion, is determined by the general principle of law as announced in the cases cited in Judge Berry’s opinion, and particularly 28 C. J. S. 704, 17 Am. Jur. 956 and 957, and the Ohio cases exemplifying and applying these general principles.

We quote from the text, 15 O. Jur., 53 and 54, rather than to digest the cases cited in support of it, because they are so numerous:

“Frequently, however, the conveyance calls for a way, street, road, or stream as a boundary, without expressly giving the right-of-way therein. In such a case, if the grantor has the fee of the land thus referred to, he is estopped as against his grantee, to deny that it is a way, street, road, or a stream; and an easement therein passes to the grantee by implication. It has been said that where the call or a way is not needed to complete the description of the land conveyed, it is presumed that it was put in for the purpose of estopping the grantor from denying the right-of-way.”

A case of special interest, with annotation, is Frawley v. Forrest (Mass.), 138 A. L. R. 999. The decisions of Massachusetts are recognized to be of compelling authority because of the number of cases that have there arisen on the subject of easements and extended consideration that the courts of that state have been required to give to them. The third syllabus of this case is substantially the same as the above quotation from 15 O. Jur.

There is abundant proof in the record that Mrs. DeWeese, by the language employed in her deed to plaintiffs, intended to and did create an easement, by implication, in the unnamed street which is in controversy. The full meaning of the language in the deed to the plaintiff is developed in the testimony. It was not restricted to use by DeWeese to reach certain parts of land owned by her, but for the public use.

The law imputed to defendant, Fox, such knowledge of the easement as he would have acquired by the exercise of ordinary diligence. 28 C. J. S. 712. Defendant, Fox, was put on notice of the easement, not only by reason of the language in the deed to plaintiff, but by personal knowledge and observation for many years of the physical situation respecting the “unnamed street,” by the reservation in the deeds to Winegartner and from him to Fox, that the unnamed street was to be reserved for the use of the public forever for street purposes, and finally, by the description, conditions and limitations in the deed from defendant McFarland, by which Fox claims the right to bar plaintiffs from the use of the “unnamed street.”

The judgment in this Court will be the same in its entirety as in the Common Pleas Court.

MILLER, PJ, WISEMAN, J, concur.


text:
    WEIKERT, Plaintiff-Appellee, v. WEIKERT, Defendant-Appellant.
    Ohio Appeals, Second District, Champaign County.
    No. 140.
    Decided April 13, 1956.
    Donald M. Gibbs, Urbana, for plaintiff-appellee.
    J. Harvey Crow, St. Paris, for defendant-appellant.
    (CONN, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By CONN, J.

On a previous appeal of this cause by defendant, the court determined that the failure of the trial court to make special findings of fact and law, requested by defendant, constituted prejudicial error, and the cause was remanded with directions to the trial court to vacate its judgment awarding plaintiff-appellee a divorce and make separate findings of facts and conclusions of law, and thereupon re-enter said judgment as of the date such findings and conclusions are made.

The court also determined that the trial court properly exercised its discretion in overruling defendant-appellant’s motion to make plaintiff’s petition definite and certain by stating facts which constituted the alleged gross neglect of duty. The parties will be referred to herein as designated in the trial court.

The present appeal has been taken by defendant on questions of law from the judgment of the trial court following its special findings of fact and law, whereby plaintiff was awarded a judgment of divorce from defendant, defendant denied alimony, and the property of the parties divided between them.

Plaintiff alleges in his petition that he and defendant were married December Í9, 1932; that no children were born as the issue of said marriage; that the parties are owners of certain real estate in Champaign County, Ohio, and in St. Albans, New York, and that they also own a Chevrolet automobile and certain household goods and effects. Plaintiff further alleges that defendant has been guilty of gross neglect of duty toward plaintiff. Plaintiff prays that he be granted a divorce and that the court determine and set off to each party their respective rights and interests in said real and personal property.

Defendant, in her amended answer, admits the allegations in plaintiff’s petition except the allegation that defendant has been guilty of gross neglect of duty, which allegation she denies.

For cross-petition, defendant avers, among other allegations as to residence and property of the parties, that since May 10, 1952, she and plaintiff have been living separate and apart by reason of the extreme cruelty of plaintiff in abandoning defendant. Defendant prays that the court set apart to her such interest in the real and personal property of the parties that would be just and equitable; that she be awarded temporary and permanent alimony, attorney fees, costs and such other relief as the court finds just, and that plaintiff’s petition be dismissed.

The affirmative allegations in the amended cross-petition of defendant are denied by plaintiff.

The record in this case is replete with colloquies between counsel and the court, also objections, exceptions and judicial homilies. These matters contributed much to the length of the record.

The trial court limited the evidence offered by defendant within narrow limits and held that she could only introduce such evidence as directly countered plaintiff’s charge against her of gross neglect of duty, and further limited defendant’s affirmative evidence offered in support of her amended answer and cross-petition to the issue of abandonment.

The defendant assigns numerous errors of the trial court. In addition to the assignment that the judgment is manifestly against the weight of the evidence and contrary to law, defendant assigns as errors of the trial court, the following, which we abridge and restate:

1. The court erred in limiting the cross-examination of plaintiff, and limiting the evidence to the charge of gross neglect of duty made against defendant, and the issue of abandonment of defendant by the plaintiff.

2. The court erred in excluding certain conversations between the parties, on the ground they were privileged.

3. The court erred in excluding certain exhibits offered by defendant.

The defendant claims the court committed other errors, prejudicial to her, in certain respects, but which do not require separate discussion, in view of the following considerations and the conclusion the court has reached on the record.

1. At the conclusion of plaintiff’s testimony in chief, plaintiff was cross-examined by counsel for defendant. After plaintiff rested his case, defendant called plaintiff for cross-examination in defendant’s case, and over objection, the court would not permit further cross-examination of plaintiff, on the ground that defendant had already cross-examined him.

In the light of the issues raised on the general denial of defendant and on defendant’s cross-petition, and in relation to these issues including defendant’s claim that plaintiff abandoned her without legal excuse, and defendant’s claim for alimony, it is quite clear that this action of the trial court prevented defendant from having a fair trial and amounted to an abuse of discretion.

Defendant further contends that the court also erred in strictly limiting the evidence to the issue of gross neglect and abandonment and in not permitting the cross-examination of plaintiff relative to his own misconduct and his general attitude toward defendant.

It is pertinent to note that these parties were married on December 19, 1932, and lived together until plaintiff voluntarily left the residence of the parties in April, 1952, a span of nearly 20 years, including the time plaintiff was in military service.

Under the general denial of defendant, plaintiff had the burden of proof to show that he was justified under the law in abandoning his home and separating from defendant. The issue before the court is simply stated. What was the cause of the separation of these parties after a marital relationship of nearly twenty years?

The trial court would not permit defendant to cross-examine plaintiff on matters relating to this material issue, particularly with reference to discussion between the parties over a period of time before separation, respecting divorce, plaintiff’s personal habits and also as to the character of his association with women outside of the home. The court also excluded the evidence offered by defendant relative to charges of plaintiff’s misconduct in default of his marital obligation. The ground for excluding this testimony, as stated by the court, was that it was immaterial what kind of a man plaintiff might be, as there were but two :ssues.

It is our opinion that the limitation imposed by the trial court relative to further cross-examination and in limiting the admission of evidence offered by defendant was an abuse of discretion and prejudicial to the defendant, as it prevented defendant from having a fair trial.

2. The court throughout the trial sustained objections interposed by plaintiff, excluding evidence of private conversations between the parties, had before final separation, on the ground of privilege, pursuant to §2317.02 R. C. However, §3105.11 R. C., expressly provides that notwithstanding their marital relation, the parties in actions and proceedings under §§3105.01 to 3105.21 R. C., inclusive (Domestic Relations Code), shall be competent witnesses “to the same extent that any other witness might.”

The questions asked of plaintiff on cross-examination and of defendant on her direct examination, to which objections were sustained, included questions relating to the intimate relations of the parties; conversations in regard to legal separation; plaintiff’s desire for divorce; plaintiff’s association and that he had told defendant he no longer loved her.

Furthermore, defendant was not permitted to testify as to such matters as defendant’s health prior to the separation or testify concerning defendant’s church and civic activities.

These limitations imposed by the trial court were not within its sound discretion and were prejudicially erroneous.

3. Defendant contends that the court also erred in excluding exhibits offered by defendant. Two of the exhibits related to plaintiff’s income tax returns, one a photostatic copy of plaintiff’s 1951 tax return and the other was a carbon copy of plaintiff’s 1952 return. These exhibits were substantially identified and offered to impeach plaintiff’s testimony as to amount of his yearly income. Plaintiff testified that his gross pay from International Harvester Company was $145.20 per week. However, said exhibits indicated that plaintiff had received approximately $164.00 per week.

Two other exhibits are photographs of plaintiff’s writing on the bathroom mirror, which were identified by the party who took the pictures, and concerning which defendant was examined in chief. Plaintiff testified he lost his love for defendant some time between the time he returned from the army and the day he separated from defendant. The two exhibits related to the same subject matter, towit: the picture of said mirror and the words, “Vita, I still love you.” These exhibits were identified and offered by way of impeachment, the writing was placed on the mirror a number of months after plaintiff had separated from defendant.

While the trial court might have, properly admitted the several exhibits, the refusal to do so was within the court’s discretion and the action taken does not appear to have been prejudicial, in view of the record.

Defendant contends that on the whole record, plaintiff has not met the burden of proof on the issue of the alleged gross neglect of defendant. In addition to the claim that defendant was a religious fanatic, plaintiff testified that defendant was neglectful of her home, although she was gainfully employed outside of her home; that the house was untidy and that she was indifferent to her own appearance.

Defendant called as witnesses her neighbors and residents of the community where the parties had lived, six in number, two members of the Catholic faith and four of the Protestant faith. These witnesses knew the defendant over a period of time and had visited in defendant’s home and had observed her housekeeping and her personal appearance from time to time. These witnesses testified that defendant was a good housekeeper, neat in appearance and active and helpful in the civic and religious life of the community where she had resided. Four of these, three Methodists and one Baptist, each testified that defendant at no time tried to impose her religious faith on any of them at any time, and also that she was helpfully interested in the civic and religious life of her community.

Plaintiff’s testimony concerning the alleged zealous character of defendant’s religious activity was corroborated to some extent by members of his family. However, a question arises as to whether or not this alleged breach of the marital contract amounted to gross neglect of duty, as claimed by plaintiff. In view of the prejudicial error disclosed on the record and that the judgment of the trial court must be reversed, it becomes unnecessary to consider the weight of the evidence on the issues joined between the parties.

Judgment of the court of common pleas reversed and cause remanded thereto for a new trial. Costs to abide final judgment.

MILLER, PJ, HORNBECK, J, concur.