text:
    MENELEY, Plaintiff-Appellant, v. CARPENTER et, Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2278.
    Decided September 1, 1954.
    Pickrel, Schaeffer & Ebeling, William H. Selva, Kennedy Legler, Jr., of Counsel, Dayton, for plaintiff-appellant.
    C. William O’Neill, Atty. Geni., Kiehner Johnson, Earl N. Merwin, Asst. Attys. Geni., Columbus, for defendants-appellees.
   OPINION

Per CURIAM:

Submitted on motion of defendants-appellees for an order dismissing the appeal for the reason that the appellant has failed to file assignments of error as required by Rule VII of this court.

The record shows that within the time prescribed by rule the plaintiff-appellant filed what purports to be an assignment of error and brief. However, as contended by defendants-appellees, which is supported by the record, all four assignments of error are directed to the order made by the State Board of Real Estate Examiners revoking appellant’s license as a real estate broker. No assignment of error is expressly directed to the judgment of the Common Pleas Court, which on appeal affirmed the order of the Board of Real Estate Examiners. However, the notice of appeal is directed to the judgment of the Common Pleas Court, and the brief states this record fact. The time within which assignments of error and brief may be filed has expired.

While neither the assignments of error nor the briefs properly set forth the errors of the Common Pleas Court, the liberality extended in such matters by the Supreme Court would permit an amendment of the assignments of error in furtherance of justice for good cause shown, on application of appellant. See Mosey v. Hiestand, 138 Oh St 249, and cases cited under §2505.05 R. C.

The motion to dismiss the appeal will be overruled. The Court will entertain appellant’s motion to amend.

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

APPEAL ON QUESTIONS OF LAW

No. 2278.

Decided December 28, 1954.

Appellate Review [Abs & O. Jur.] §185

1. The appellate court on appeal on questions of law will not pass on errors which were not presented to the trial court for consideration.

Appellate Review [Abs & O. Jur.] §756

2. The action of an administrative body in refusing to grant a continuance will be supported unless it appears such body abused its discretion and the question presented is whether upon a consideration of the whole record it appears that the complaining party was prejudiced by the refusal to grant such continuance.

Appellate Review [Abs & O. Jur.] §756

3. Where, although the counsel whom appellant retained was unavoidably absent during a part of the hearings, the record shows that appellant was capably represented during the hearing and that appellant’s attorney on his return made no request for further cross-examination of the witnesses, and the record does not show that such witnesses were not available for recall or that the board before whom the hearing was being had would have refused a request to have such witnesses testify further, a refusal by the board of a continuance during such attorney’s absence did not constitute prejudicial error.

Appellate Review [Abs & O. Jur.] §815

4. On an appeal from an administrative body where no additional evidence is presented to the reviewing court, the right to weight and evaluate the testimony cannot be taken from the first trier of facts by the court sitting in review.

HEADNOTES BY EDITORIAL STAFF

Pickrel, Schaeffer & Ebeling, Kennedy Legler, Jr., William H. Selva, of Counsel, Dayton, for plaintiff-appellant.

Canny, Stewart & Cromer, Clarence J. Stewart, of Counsel, Dayton, for plaintiff-appellant.

C. William O’Neill, Atty. Geni., Kiehner Johnson, Asst. Atty. Geni., Columbus, for defendant-appellee.

HISTORY: — Appeal on questions of law from a judgment of the Court of Common Pleas affirming an order of the State Board of Real Estate Examiners revoking appellant’s real estate license. Judgment affirmed. For further history see Omnibus Index in bound volume.

OPINION

Per CURIAM:

This is an appeal on questions of law from a judgment of the Common Pleas Court affirming an order of the State Board of Real Estate Examiners revoking appellant’s real estate license No. 19596.

We hereinafter refer to the State Board of Real Estate Examiners as the Board. The original hearing before the Board was based upon two charges of violation of §§I, 2, 6, 9 and 22 of §6373-42 GC. The charges grew out of transactions between appellant broker, and Daisy H. Smith, relating to the sale of her residence and the purchase of a business by two of her sons; and the sale by Mrs. Frances P. Shannon of her residence property and the purchase by her of a tavern. The complaint in the form of an affidavit, as required by statute, set out in simple and understandable form the particulars wherein was set forth the transaction involved, thereafter followed the numbered paragraphs of the §6373-42 GC which it was asserted were specifically violated.

An original and an amended assignment of errors have been filed. We consider the amended assignments

The second and fourth assignments were not presented to, or considered by the Board, or on the appeal to the Common Pleas Court. For that reason we may not pass upon them. Kimble v. Kimble Bros., Inc., 143 Oh St 500.

The first assignment is that the court erred in affirming the order of the Board in holding that the Board did not abuse its discretion in refusing to grant the appellees request for a continuance.

The action of the Board must be supported unless it appears that it abused its discretion. We cannot so find. Without respect to the technical question of the right of a party to be represented by any particular attorney, which is doubtful, the decisive matter here is whether, upon the whole record, it appears that the appellant was prejudiced by the refusal to grant the continuance. Judge Stewart, who had been employed to represent the appellant, was unavoidably absent during the reception of the testimony of Mrs. Smith and Mr. Huffman, the witnesses on behalf of the complainant. However, another attorney was present and capably represented the appellant, although it must be conceded that he did not waive the motion for continuance and asserted that he was not representing the appellant. However, as we read the record, Judge Stewart, upon his return, made no request for further cross-examination of either of the witnesses for the complainant, and there- is no showing that Mrs. Smith was not available at all times, nor that Mr. Huffman could not have been recalled; nor does the attitude of the Board indicate that there would have been a refusal to have required them to testify further had the request been made.

The third assignment of error is that the order of the Board was against the manifest weight of the evidence and that the court erred in affirming it.

We have held in appeals comparable to this, no additional evidence being offered on the appeal, that the right to weigh and evaluate the testimony cannot be taken from the first trier of the facts, in this case the Board, by a Court sitting in review. Rufo, d. b. a. Mickey’s Cafe. v. Board of Liquor Control, No. 5080, Franklin County, October 22, 1954, unreported.

So testing this case, we cannot say that the order was against the manifest weight of the evidence, or unsupported thereby.

We do not discuss the facts at length, because they are extensive and somewhat involved and it would serve no good purpose to burden this opinion with a detailed recitation of them. With the exception of two instances, not material, all of the evidence received on behalf of the complaint was properly admitted. Indeed the rulings of the Board were sound and proper and were favorable to the appellant in that it ruled out the testimony proffered on behalf of complainant, which was competent and relevant.

Even upon the explanation of appellant, in its most favorable light-to him, his methods in the transactions under consideration were involved, devious and dubious, and difficult to reconcile with the fair dealing enjoined upon him toward his principals. The part that the agents whom' appellant projected into the transactions were to perform is not clear. Their relationship as agents was unknown to either Mrs. Smith or Mrs. Shannon.

Upon the testimony of Mrs. Smith, Mrs. Shannon, Mr. Huffman and Mr. McCluskey, bad faith and sharp practice amply supporting the complaint is shown.

The fourth assignment of error is that the order of the Board was harsh, unjust and unreasonable.

The statute provides that the investigation shall be made by the Board upon the verified complaint of any person, and that the violation of any one of the 25 grounds set out in the numbered paragraphs of §6373-42 GC shall be the basis for the suspension, revocation or refusal of renewal of the Real Estate Broker’s License. Here four transactions were involved, two complaints were made, and the Board found that five of the specific grounds of the statute had been violated. We cannot support the error assigned.

Upon a careful consideration of the errors assigned which we can properly consider, we are required to find that the order of the Board was supported by reliable, probative and substantial evidence and was in accordance with law, and that the Common Pleas Court on appeal did not err in so holding.

The judgment will be affirmed.

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

ON APPLICATION FOR REHEARING

No. 2278.

Decided January 24, 1955.

Administrative Law [Abs & O. Jnr.] §130

1. The 'basic reason necessitating separate findings of fact in decisions by administrative bodies arises from the fact that the law under which such bodies act requires such findings and no such requirement is placed by law upon the Board of Real Estate Examiners.

Administrative Law [Abs & O. Jnr.] §§28, 29, 30

2. Sec. 4713.18 U. C. provides Sufficient standards for the guidance of the Board of Real Estate Examiners in the revocation or suspension of a real estate license.

HEADNOTES BY EDITORIAL STAFF

Pickrel, Schaeffer & Ebeling, Dayton, By Kennedy Legler, Jr., and William H. Selva, Of Counsel, for plaintiff-appellant.

Canny, Stewart & Cromer, Dayton, by Clarence J. Stewart, Of Counsel, for plaintiff-appellant.

Hon. C. William O’Neill, Attorney General, and Kiehner Johnson and Earl N. Merwin, Assistant Attorneys General, Columbus, for defendantsappellees.

HISTORY: — Application for rehearing. Application denied. For further history see Omnibus Index in bound volume.

OPINION

PER CURIAM:

Submitted on application for rehearing. It is claimed that we did not consider and determine the second amended assignment of error which it is asserted raises the question of the jurisdiction of the State Board of Real Estate Examiners to make the order from which the appeal is prosecuted, without separate findings of fact.

Appellants cite 1 O. Tur. 2d, p. 515. As we read the citation and particularly the annotation, 146 A. L. R. 211, to which reference is made in the footnotes to the text, the cases cited are not authority for appellant’s contention as to jurisdiction. The basic reason supporting the necessity of findings by an administrative body is that the lav/ under which it acts requires that is make such findings. The section involved here makes no such provision.

The contention that no standards are set up is not well made because the standards are prescribed in the section, §1735.18 R. C., §6373-42 GC. The charge set forth subject matter asserting that the section had been violated in certain particulars. The Board specifically found that it had oeen so violated. The Board did not set up its own standards, but acted upon those which had been prescribed by the Legislature. We cannot find that due process of law has been violated, nor that any findings of fact other than those set out in the order were essential to the exercise of jurisdiction by the Board. What we have heretofore said, in the third paragraph on page 5 of the original opinion, is applicable to the second assignment of error.

The application will be denied.

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


source: Caselaw Access Project

author: By SIMONS, Chief Judge.

license: Public Domain

text:
    AMALGAMATED CLOTHING WORKERS OF AMERICA et v. RICHMAN BROS. CO.
    United States Court of Appeals, Sixth Circuit.
    No. 11839.
    Decided March 30, 1954.

      William J. Isaacson, Solomon H. Friend, Valentin J. T. Wertheimer, of New York City, Corrigan, McMahon & Corrigan, Moses Krislov, of Cleveland, on brief, for appellants.
    Luther Day, Earl W. LeFever, George D. Bonebrake, George H. Rudolph, Jones, Day, Cockley & Reavis, of Cleveland, on brief, for appellee.
    Before SIMONS, Chief Judge, and ALLEN and MILLER, Circuit Judges.
   OPINION

By SIMONS, Chief Judge.

This appeal is from an order denying a motion for temporary injunction brought by appellants to enjoin appellee from proceeding in its suit before the Court of Common Pleas in Ohio. The ground for denial was that the court was without jurisdiction to entertain the suit because of the prohibition of 28 U. S. C. §2283. The appellants’ petition was based on the ground that the appellee’s state court action constituted an invasion of the exclusive jurisdiction conferred by Congress upon the National Labor Relators Board. A motion to dismiss the appeal was referred by us to the oral hearing which has now been had. The appellant will be referred to herein as “the union” and the appellee as “Richman.”

Richman is an Ohio corporation engaged in the manufacture and retail sale of wearing apparel in various states. The controversy was initiated by its suit in the state court for a temporary restraining order to prevent the union from picketing its stores, on the ground that the picketing was in furtherance of a conspiracy whose purpose was to exert economic pressure on Richman so that it would compel its employees to join the union. The suit was removed to the United States District Court, on the ground that the action was based upon an alleged unfair labor practice within the meaning of Section 8(b)(1)(A) of the National Labor Relations Act, 29 U. S. C. A. §158(b) (1) (A) Richman moved to remand. The District Court granted its petition because it was, it said, without jurisdiction of the subject matter. 114 F. Supp. 185: 116 F Supp. 800. The union filed, in the state court, a motion to dismiss on the ground that the matter complained of was within the exclusive jurisdiction of the National Labor Relations Board. Its motion was denied. The union then instituted an independent action in the District Court against Richman to enjoin it from prosecuting the remanded action and requested it to stay proceedings in the Ohio court pending determination of its application in the District Court for injunction. The court overruled the application for a stay and denied the granting of injunction. On the same day, hearings were begun in the state court resulting in the issuance of an injunction by the state court restraining the union from picketing the Richman stores. In the meanwhile, the union had noticed its appeal from the District Court’s order.

Richman moved to dismiss the appeal on the ground that it constituted an attempt indirectly to obtain a review of the District Court’s order of remand prohibited by Title 28 U. S. C. §1447 (d) which provides that such order “is not reviewable on appeal or otherwise.” The union responds that the action is independent and in recognition of the finality of the remand order. This issue was not presented to or considered by the District Court which denied injunction solely on Title 28 §2283. In view of what follows, we find no need for deciding it here.

There is also collaterally involved the question whether, under the facts as alleged in the Richman petition in the state court, Richman’s grievance against the union is within the exclusive jurisdiction of the National Labor Relations Board, so that the state court is without jurisdiction to entertain it. In Garner v. Teamsters, Chauffeurs and Helpers Local Union No. 776 (A. F. L.), 346 U. S. 485, 74 S. Ct. 161, 164, it was held under comparable but not identical facts that the Supreme Court of Pennsylvania was right in dissolving an injunction against picketing issued out of a local court. It reasoned that while the National Labor Management Relations Act leaves much to the states, Congress had refrained from saying how much. It said: “This is not an instance of injurious conduct which the National Labor Relations Board is without express power to prevent and which therefore either is ‘governable by the state or it is entirely ungoverned.’ In such cases we have declined to find an implied exclusion of state powers. International Union, U. A. W., A. F. of L., Local 232 v. Wisconsin Employment Relations Board, 336 U. S. 245, 254, 69 S. Ct. 516, 521, 93 L. Ed. 651. Nor is this a case of mass picketing, threatening of employees, obstructing streets and highways, or picketing homes. We have held that the state still may exercise ‘its historic powers over such traditionally local matters as public safety and order and the use of streets and highways.’ Allen-Bradley Local No. 1111, United Electrical Radio and Machine Workers v. Wisconsin Employment Relations Board, 315 U. S. 740, 749, 62 S. Ct. 820, 825, 86 L. Ed. 1154.”

There is no suggestion in the Richman petition that violence or threats accompanied the union picketing. There is, however, an allegation of sporadic picketing demonstrations by as many as twenty pickets milling about in closely formed groups at the main entrance of the picketed stores, creating confusion and blocking the entrance so as to divert pedestrian traffic outwardly therefrom. Whether this distinction from the Garner case suggests an area for the exercise of state authority, we do not undertake to decide. The order of the state court granting the injunction is summary without findings of fact or conclusions of law and no record has been made available to us. We confine our consideration of the present case to the impact of Section 2283. That section provides: “A court of the United States may not grant an injunction to stay proceedings in a state court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”

It will be observed that §2283 provides three exclusions from its operations: (1) the injunction must be expressly authorized by Act of Congress, (2) it must be necessary in aid of the court’s jurisdiction, (3) it must be designed to protect or effectuate the court’s judgment. The union does not cite an Act of Congress which expressly authorizes stay of proceedings in a state court by a federal court in this type of case. Bowles v. Willingham, 321 U. S. 503, 64 S. Ct. 641, 88 L. Ed. 892 and Porter v. Dicken. 328 U S. 252, 66 S. Ct. 1094, 90 L. Ed. 1203, held that §205 of the Price Control Act authorizes the Price Administrator to seek injunctive relief in appropriate courts, because that section is impliedly an amendment to §265 of the Judicial Code, 28 U. S. C. §379 which was predecessor to §2283, supra. It is pointed out that Section 10 (j) of the Labor Act, Title 29 U. S. C. A. §160 provides that the National Labor Relations Board shall have the power, upon issuance of a complaint charging an unfair labor practice, to petition a district court of the United States for appropriate temporary relief or a restraining order and that upon the filing of such petition the court shall have jurisdiction to grant temporary relief or restraining order as it deems just and proper. So, it is argued that this section is so analogous to §205 of the Price Control Act that it, too, is impliedly an amendment to the statute prohibiting injunctions to stay proceedings in the state courts.

There are a number of reasons why this argument fails. Neither the Price Control Act nor the Labor Act permits the granting of an injunction to persons generally. The authority granted in the Price Control Act is limited to the Price Administrator and for specific purposes and the authority in the Labor Act is limited to the Labor Board, but only for temporary restraint pending final adjudication of the Board with respect to the matter involved. This, necessarily, involves a proceeding in which the jurisdiction of the board' has been invoked. Here, what was sought was a permanent injunction and the jurisdiction of the Labor Board had not been invoked. This is made clear by subsection (1) of Section 10. Finally, §2283, supra, in so far as it provides that a court of the United States may not grant an injunction to stay proceedings in a state court, except as expressly authorized by Act of Congress, was not enacted into law until June 25, 1948. The Dicken case was decided in 1946, and Bowles in 1944. It is suggested in the revisor’s note in 28 U. S. C. §2283, that the provision limiting authority expressly granted was for the purpose of avoiding the decision in Toucey v. New York Life Insurance Company, 314 U. S. 118, 62 S. Ct. 139, 86 L. Ed. 100, which held that a federal court is without power to enjoin relitigation of cases already adjudicated. Whatever may be said of this inference, the limitation in §2283 is clear, mandatory and completely free of ambiguity. It does not call for construction.

' But were construction permissible, courts should not lightly read into the prohibitory enactment an implied amendment. This, we think, is the teaching of the Toucey case. There, the court traced the history of the prohibitory statute from its initial enactment in 1793 and said of it, 314 U. S. at page 132, 62 S. Ct. at page 143: “The purpose and direction underlying the provision is manifest from its terms: proceedings in the state courts should be free from interference by federal injunction. The provision expresses on its face the duty of ‘hands off’ by the federal courts in the use of the injunction to stay litigation in a state court. * * * In the course of one hundred and fifty years, Congress has made few withdrawals from this sweeping prohibition.”

Finally, the principle has bearing, that in order to maintain respect for the mandates of courts, an injunctional order must be obeyed even if error lies in an assumption of validity of a seeming but void law. It is for the court, in the first instance, to determine the question of validity and until its decision is reversed for error by orderly review, either by itself or by a higher court, orders based on its decision are to be respected. State ex rel. Court of Industrial Relations v. Howat, 107 Kan. 423, 191 P. 585; State ex rel. Hopkins v. Howat, 109 Kan. 376, 198 P. 686, 25 A. L. R. 1210. The reasoning of that case was approved in Howat v. Kansas, 258 U. S. 181, 189, 42 S. Ct. 277, 281, 66 L. Ed. 550, wherein Mr. Chief Justice Taft, speaking for a unanimous court, said: “It is for the court of first instance to determine the question of the validity of the law, and until its decision is reversed for error by orderly review either by itself or by a higher court, its orders based on its decision are to be respected.” This reasoning was cited and approved recently in United States v. United Mine Workers of America, 330 U. S. 258, 293, 67 S. Ct. 677, 91 L. Ed. 884. We are advised that the injunction has now been issued by the state court. Neither the District Court nor this court is invested with general power to review the decisions of state courts. This case involving a federal question, the appropriate course was to test the merits of appellants’ grievance by appeal to the court of last resort in the state and from there to the Supreme Court of the United States. This was the road which the Garner case took.

The appellants urge, however, that such course would have made for delay and that time was important to them. How valid that is we are unable to say but the care which Federal courts have taken from earliest times to avoid conflicts with state courts might well have counseled taking the longer path.

We come then to the phrasing of §2283 which permits restraint of state judicial action where necessary in aid of the jurisdiction or to protect or effectuate the judgment of the federal court. The appellants urge that this exclusionary language is broad enough to vest in the District Court authority to enjoin state action, not only to protect its own jurisdiction but also the exclusive jurisdiction of a federal agency. At least, one court has so held. N. L. R. B. v. New York State Labor Relations Board, D. C. N. Y., 106 F. Supp. 749. In that case, however, the board’s jurisdiction had been invoked and it had power expressly vested in it to bring an action in the District Court to enjoin a State Labor Relations Board from invading its exclusive jurisdiction pendente lite. In Capitol Service, Inc. v. National Labor Relations Board, 9 Cir., 204 F. 2d 848, the Supreme Court granted certiorari upon this question submitted by the court: “ ‘in view of the fact that exclusive jurisdiction over the subject matter was in the National Labor Relations Board, Garner v. Teamsters, Chauffeurs and Helpers, Local Union No. 776 (A. F. L.) [346 U. S. 485], 74 S. Ct. 161, could the Federal District Court, on application of the board, enjoin petitioners from enforcing an injunction already obtained from the state court.’” 346 U. S. 936, 74 S. Ct. 375. Affirmative answer to that question will not conclusively decide this case for, there, there was an application by the board itself to protect its jurisdiction, already invoked and pending decision. Here, no such situation exists.

In Myers v. Bethlehem Ship Building Corporation, 303 U. S. 41, 58 S. Ct. 459, 82 L. Ed. 638, the question was whether a Federal District Court had equity jurisdiction to enjoin the National Labor Relations Board from holding a hearing on a complaint filed by it against an employer alleged to be engaged in unfair labor practice. The answer to that question was that the District Court had no such jurisdiction. It was pointed out that exclusive initial jurisdiction arising under the Labor Management Relations Act is vested in the board and the District Court has no jurisdiction to entertain actions based thereon or growing there-out. In the Garner case, supra, it was said: “The same reasoning which prohibits federal courts from intervening in such cases, except by way of review or on application of the federal board, precludes state courts from doing so,” citing the Myers case, supra, and Amalgamated Utility Workers v. Consolidated Edison Company, 309 U. S. 261, 60 S. Ct. 561, 84 L. Ed. 738. In a footnote, it cites International Union of Operating Engineers, Locals No. 542, 542—A, 542—B v. William D. Baker Company, D. C., 100 F. Supp. 773, as illustrating the potentialities of conflict and noting that the federal court in that case had held that even if exclusive jurisdiction over the subject matter was in the federal court, it had no power to enjoin enforcement of the state injunction. For critical comment on Baker, see note 48 N. W. U. L. Rev. 383.

Another explanation by the appellants for taking the course they did, rather than by orderly review, is based on the assertion that while Rich-man charged an unfair labor practice, the union had no basis for invoking the jurisdiction of the Labor Board and the Labor Board had consistently declined to undertake any proceeding without a formal charge being lodged with it. But the board has held in W. T. Carter & Brother, 90 N. L. R. B. No. 257, that the utilization of state judicial machinery for the purpose of blocking communication between union organizers and employees infringes organizational rights and is itself an unfair labor practice, over which it has jurisdiction. The union so charged in the Carter case and the board, in its order, directed the employer to obtain vacation of the state court decree. (For comment on the Carter case, see 64 Harvard Law Rev. 507 [1951].) If time be of the essence, this approach could have settled at an early stage the question whether the board would exercise its discretion to act, as well as other questions involved, and would have avoided the difficulties presented in the conflict of federal and state jurisdiction. Perhaps, it is not too late to employ the mechanics of the Carter case. Upon this, we express no opinion.

Our conclusion is that §2283, supra, did not vest in the court below jurisdiction over the union’s petition for an injunction against state action, in the circumstances of the present case. The motion to dismiss the appeal is denied but the order denying injunction is affirmed.


author: By WISEMAN, PJ:

text:
    RISMILLER, Admrx., Plaintiff-Appellee, v. DAYTON POWER & LIGHT COMPANY, Defendant-Appellant.
    Ohio Appeals, Second District, Darke County.
    No. 718.
    Decided December 11, 1954.

      Myers, Mills, Boeseh & Cline, Dayton, By Orel J. Myers, Of Counsel, Goubeaux & Gobeaux, Greenville, for plaintiff-appellee.
    Landis, Ferguson, Bieser & Greer, Dayton, Warren A. Ferguson, Of Counsel, Marchal & Marchal, Greenville, Vernon L. Marchal, Of Counsel, for defendant-appellant.
   OPINION

By WISEMAN, PJ:

This is an appeal on questions of law from a judgment of the Common Pleas Court of Darke County entered on a verdict returned in favor of plaintiff in an action for wrongful death instituted by the administratrix of the decedent.

The gist of the plaintiff’s second amended petition is:

“Plaintiff says that on July 8th, 1950, the defendant, The Dayton Power and Light Company, through its employees engaged in the regular course of their employment, tied a guy wire attached to an electric transmission Une pole to the corner post of a fence situate on the lands owned by the decedent and his wife, Mary Rismiller, and that the decedent on July 10th, 1950 came in contact with said rope and guy wire which at said time and place were charged with approximately 7,000 volts of electricity, and that the decedent on said date at about 6:00 A.M., was then and there electrocuted and died as a result of the high current of electricity going through his body to ground, which was the direct and proximate result of the negligence of defendant, as hereinafter set forth.”

Plaintiff alleges five specifications of negligence, as follows:

“Plaintiff further states that the defendant, through its employees and agent while engaged in the regular course of their employment, was negligent and failed to exercise a proper degree of care for the safety of decedent and to the damage of his surviving spouse and next of kin in the following manner and particulars, to wit:
1. In failing to insulate said guy wire between the point where the same was attached to the transmission pole and the lower end thereof which was attached to the comer post on the lands of the decedent and his wife, as aforesaid.
2. In tying said guy wire to the corner post of the decedent by means of a manila hand rope.
3. In failing to repair said guy wire in a permanent and proper manner so as not to endanger the life of the decedent.
4. In failing to erect warning signs to warn parties endangered of the peril created by the temporary repair as made by the agents and employees of the said defendant.
5. In permitting to remain in said guy wire an object which had the appearance of an insulator but which was in truth and in fact not an insulator.”

The defendant in its answer, after making certain admissions, entered a general denial and further pleaded contributory negligence on the part of the plaintiff’s decedent in that he failed:

“* * * to exercise ordinary care for his own safety in removing the rope from the corner post to which the guy wire had been attached by defendant’s employees without first requesting employees of the defendant to do so, and in attaching a wire to said guy wire, when he knew or in the exercise of ordinary care for his own safety should have known, that there was danger to his life in so doing, and in releasing said guy wire in such a manner that he permitted it to sag and come into contact with energized wires on defendant’s pole thereby causing the guy wire to become energized.”

Plaintiff’s reply was in the nature of a general denial, and further alleged that:

“* * * if it be established by the evidence that plaintiff’s decedent attached a wire to said guy wire, removed the rope attached to the guy wire and tied by the employees of defendant, while in the course of their employment, to the cornerpost of a fence situate on the land owned by the decedent and his wife, Mary Rismiller, and that said guy wire became charged by releasing said rope; then said plaintiff’s decedent did not fail to exercise ordinary care for his own safety by so doing for the reason that said guy wire was made of two sections of cable joined by what appeared to be an insulator in such a way that if the upper part of said section of said guy wire by being released, came in contact with energized wires on defendant’s poles, thereby causing the upper section of said guy wire to be energized that the lower section of said guy wire would not be energized by reason of what purported to be, but in truth and in fact, was not an insulator joining the two sections of said guy wire, but permitted the lower section of said guy wire to become energized.”

The matter was thoroughly tried, as shown by a voluminous record, which resulted in a general verdict in favor of the plaintiff in the sum of $40,688.00 and answers to 11 interrogatories. On motion for new trial the trial court granted a remittitur in the sum of $688.00, which was accepted by the plaintiff.

Motions for directed verdict interposed by the defendant at the close of the plaintiff’s case, and renewed at the close of all of the evidence, motion for judgment non obstante veredicto, and motion for new trial, were overruled.

The defendant appeals from the order overruling the motion for new trial entered on March 18, 1954, and from the judgment on the verdict entered October 16, 1953. Appellee contends that the appeal was not filed within time to raise any question as to the order overruling the motion for judgment non obstante veredicto The time within which to appeal from such order does not begin to run until the disposition of the motion for new trial. See Hurt v. Rogers Transportation Co.. 160 Oh St 70, 74, 76; 113 N. E. (2d) 489. An appeal before the disposition of the motion for new trial would have been premature. However, in the instant case the notice of appeal is not specifically directed to the order overruling the motion for judgment non obstante veredicto. It becomes unimportant in this case as all questions raised on such motion are raised by the motion for new trial and must be considered and determined. A motion for new trial is no longer simply a re-examination of the facts, but of the facts and law. Sec. 2321.17 R. C. (formerly §11575 GC); Jolly v. Martin Bros. Box Co., 158 Oh St 416, 424; 109 N. E. (2d) 652; Ohio Motors, Inc., v. Charlesworth, Exrx., 88 Oh Ap 299, 97 N. E. (2d) 686; Duemer v. Duemer, 86 Oh Ap 192, 88 N. E. (2d) 603.

There was evidence presented by both parties in support of the allegations in their respective pleadings. In brief the evidence shows that in about the center of the guy wire there was a strain insulator, sometimes referred to as a “johnnie ball”, which was intended to prevent an electric current passing into the lower section of the guy wire in the event the upper section of the guy wire should come in contact with an energized wire and become charged with electricity. There was evidence that on Saturday afternoon, when the guy wire was severed near the ground by a highway mowing machine, the wire snapped and swung near the pole and the wire and the insulator struck the cut-out box on the pole, disconnecting the current to a farm home nearby and causing damage to the insulator at that time. The maintenance crew was off duty and Dunn and Viets, two service men of the defendant company, responded to the call to restore electric service. The two employees noticed the severed guy wire and the insulator in the guy wire. One of them testified that the insulator in the guy wire appeared to be “in good shape”. The other testified that as he climbed the pole he observed the insulator and that “it was in perfect shape.” There is no evidence that the employes of the defendant company otherwise inspected the insulator. There was evidence of a substantial character that the insulator was cracked and damaged in such a way as to allow the current to pass through it and to energize the lower section of the guy wire. Dunn and Viets made temporary repairs by fastening a hand rope to the lower end of the guy wire and instead of tying it to the anchor, tied it to the corner fence post on decedent’s farm. The fence at this place, and leading to the buildings on the decedent’s farm, was an electric fence. Early on Monday morning following the Saturday on which temporary repair was made, the decedent removed the rope from the fence post and in handling the guy wire received the electric shock which caused his death.

Defendant-appellant has assigned 13 separate errors. Assignments of error Nos. 1, 2 and 3 relate to the orders overruling defendant’s motions for a directed verdict, overruling defendant’s motion for judgment notwithstanding the verdict, the sufficiency and the weight of the evidence.

In our opinion there was a sufficient conflict in the evidence respecting negligence of the defendant company and contributory negligence of plaintiff’s decedent to require the submission of the case to the jury. We do not find that plaintiff’s decedent was contributorily negligent as a matter of law. Motions for directed verdict and judgment notwithstanding the verdict were properly overruled. We discuss more fully several of the questions raised under assignments of error Nos. 1, 2 and 3. in our discussion of assignment of error No. 13. We do not find the verdict to be contrary to the manifest weight of the evidence.

There is no proper showing that the amount of the verdict was excessive, or given under the influence of passion and prejudice.

We find no error in giving special instructions to the jury before argument, or in refusing to give special instructions requested by the defendant.

Assignments of error numbered 7 to 12, inclusive, relate to the action of the court in connection with the deliberations of the jury. After the jury had deliberated some time it requested a new verdict form in favor of the plaintiff, which was furnished by the court. On two occasions the jury made known it had arrived at a verdict, but each time it was found that the interrogatories submitted had not been answered by the required number of the members of the jury. The court each time instructed the jury to return to the jury room and complete the interrogatories and deliberate upon a verdict. Later, the jury submitted to the court in writing a question respecting their duty to answer interrogatories. The court again instructed the jury, as before. Counsel for the defendant each time interposed objections, and specifically objected to the insistence of the court that the interrogatories be answered and to “the protracted sessions inflicted on the jury.” The record shows that the jury began its deliberations at 3;34 o’clock P.M. Over one hour was taken for the evening meal; at 9:20 o’clock P.M. the jury requested a new form of verdict. At 10:50 o’clock P.M. the jury first returned, stating they had arrived at a verdict; at 11:45 o’clock P.M. the court gave the last instruction in answer to the question submitted by the jury. The verdict was returned 8 minutes after midnight. In considering the nature of the action, the issues presented, and the number of interrogatories to be answered, we cannot find that an unusually long period of time was taken by the jury, in arriving at a verdict and answering the interrogatories. The fact that a new form of verdict was furnished the jury does not vitiate the verdict. The fact that the signatures of members of the jury to certain interrogatories have been stricken out, and the question had been re-signed cy the required number of jury men, does not render the answers unacceptable. The instructions of the court in this regard were correct and we find no prejudicial error resulting.

In assignment of error No. 13 the appellant contends that the court erred in overruling the motion for new trial. We here discuss the principal question raised by appellant. Several of the questions here discussed are raised by assignments of error Nos. 1, 2 and 3. Eleven interrogatories were submitted to the jury and answered by them. In their answer they stated that the two employees of defendant company were negligent, and that plaintiff’s decedent was not guilty of contributory negligence. In answer to interrogatories Nos. 7 and 8 the jury stated that Glenn Dunn, one of the employees of the defendant company, was guilty of negligence proximately causing the death of the decedent, “by not fastening the guy wire to the anchor”. In answer to interrogatories Nos. 9 and 10 the jury stated that Omer Viets, the other employee of defendant company, was guilty of negligence proximately causing the death of the decedent in that “he didn’t inspect insulator”. Appellant contends that such negligent acts are not alleged in the second amended petition as one of the specifications of negligence and that therefore the plaintiff failed to prove any of the acts of negligence alleged. The answer that the act of negligence consisted in the failure to tie the guy wire to the anchor is tantamount to saying that the negligent act consisted of tying the guy wire to the corner fence post. In our opinion the answer sufficiently responded to specification of negligence No. 2 heretofore mentioned. The answer of the jury that the defendant’s employee failed to inspect the insulator responded to specification of negligence No. 3 and No. 5 heretofore mentioned. It cannot be claimed that the answers given to these interrogatories were inconsistent with the general verdict. In Elio v. Akron Transportation Co., 147 Oh St 363. 71 N. E. (2d) 707, the court on page 370 said:

“Nicety in the use of terms is not required of the jury in answering the interrogatories so long as the court is able to gather the. intent of the jury from its answer.
Where the answer given may be construed as an answer to the interrogatory it is the duty of the court to accept the same. Such answer should be liberaally construed with a view to ascertaining the jury’s reason for its verdict.”

Special interrogatory No. 5 was as follows:

“Could Lloyd Rismiller, in the exercise of ordinary care for his own safety, have removed the rope from the fence post without permitting the guy wire to contact an energized wire on the pole and thus avoided the accident?”

The jury answered the question “No”. In answering a simple direct question as to whether the decedent was guilty of contributory negligence (Interrogatory No. 11), the jury said “No”. Whether Interrogatory No. 5 is answered “Yes” or “No” it may well be claimed that the decedent was guilty of contributory negligence. The interrogatory embraces a trick question. The trial court, in passing on the motion for judgment notwithstanding the verdict found, and we likewise find, that this interrogatory was improperly submitted; the answer should be disregarded. Wells v. Baltimore and Ohio R. R. Co., 58 Abs 225, 97 N. E. (2d) 75. If the answer is construed to mean, as contended by appellant, that decedent was guilty of contributory negligence, then the answer to this interrogatory, and the answer to Interrogatory No. 11, are irreconcilably inconsistent and cancel one another, and the answers should be disregarded. Klever v. Reid Bros. Express, Inc., 151 Oh St 467, 476, 86 N. E. (2d) 608.

The answers to other interrogatories are not inconsistent with each other, nor with the general verdict.

The cases of Greenwall v. Northern States Power Co.. 32 N. W (2d) 320, Hetrick, Admr, v. Marion-Reserve Power Co., 141 Oh St 347, 48 N. E. (2d) 103, and Beery v. Northern States Power Company (Minn.), 2 C. C. H. Negligence Cases, 2d Series, 98, are easily distinguishable on the facts.

Finding no error in the record prejudicial to the rights of the appellant, the judgment is affirmed.

MILLER and HORNBECK, JJ, concur.


author: By DULL, J.

text:
    BOARD OF EDUCATION, WAPAKONETA (City), Plaintiff, v. UNKNOWN HEIRS et, Defendant.
    Common Pleas Court, Auglaize County.
    No. 14861.
    Decided March 12, 1954.

      Edward Stroebel, Wapakoneta, for the plaintiff.
    McKeever & Monahan, Wapakoneta, for the defendant St. Paul’s Evangelical and Reformed Church of Wapakoneta, and Mr. A. A. Klipfel, Wapakoneta, for the defendant Maurice Howe.
    (DULL, J. of Mercer County sitting by assignment in Auglaize County.)
   OPINION

By DULL, J.

This action to quiet title was submitted to the court upon the pleadings, testimony, evidence, exhibits, arguments of counsel and the memoranda of counsel for the plaintiff and for the defendant Howe.

The petition of the plaintiff embraced Lots numbered 57, 58, and 59 and 60 in the City of Wapakoneta, Ohio. However, by the pleadings and admissions of record, the issues were limited to Lot No. 59 and Lot No. 60 with the exception of a certain former alley, 16 feet in width, at one time known as Oak Alley, extending from Mechanic Street to Main Street in the City of Wapakoneta, Ohio, between Lot No. 57 and Lot No. 58. As shown by plaintiff’s exhibit 1, the plaintiff holds the fee simple title to Lot No. 57 and Lot No. 58 and no question was raised to such title.

To the petition of the plaintiff, the Board of Education of the City of Wapakoneta, Ohio, there were. 5 parties defendant: (1) the unknown heirs of Peter Aughinbaugh, J. K. Wilds and Joseph Barnett (the signers of the original plat relative to the two lots in question); (2) The City of Wapakoneta, Ohio; (3) The Saint Mark’s Lutheran Church of Wapakoneta, Ohio; (4) The Saint Paul’s Evangelical and Reformed Church of Wapakoneta, Ohio; and (5) Maurice Howe, the vendee of the plaintiff.

The defendants unknown heirs of Peter Aughinbaugh, T K. Wilds and Joseph Barnett (the signers of the oringinal plat relative to the two lots in question) although duly served, filed no pleadings and entered no appearances in the action.

The defendant Saint Mark’s Lutheran Church although duly served, filed no pleadings and entered no appearances in the action.

The defendant City of Wapakoneta through its mayor waived the issuing and service of summons and voluntarily entered its appearance and for answer to the petition said that the allegations contained therein were true and that the prayer of the petition should be granted.

The petition of the plaintiff is brought under §11901 GC (Sec. 5303.01 R. C.) which reads as follows:

“An action may be brought by a person in possession of real property, by himself or tenant, against any person who claims an estate or interest therein, adverse to him, for the purpose of determining such adverse estate or interest; or such action may be brought by a person out of possession, having, or claiming to have, an estate or interest in remainder or reversion in real property, against any person who claims to have an estate or interest therein, adverse to him, for the purpose of determining the interest of the parties therein.”

The petition alleges that the plaintiff owns the fee simple title and is in possession of the real property in question, the property is then described, and that the defendants claim an interest in the property adverse to the plaintiff.

The petition is sufficient according to all the requirements of law or equity with the plaintiff being the proper party to bring the action. No testimony, evidenpe or argument were introduced to the contrary.

“The object of the action is to test and quiet the title, and this may be done by anyone in actual possession, and the question as to whether the possession is rightful will usually be settled by the judgment as to the title. The right to bring the action is not limited by the statute to one rightfully in possession, but it may be brought by anyone in possession. The matter of right is involved in the trial of the merits of the case.” State v. Griftner, 61 Oh St at page 213.

Hence, the contention contained in the answer and cross petition of the defendant Saint Paul’s Evangelical and Reformed Church that the plaintiff was not the proper party to bring the action was given no further consideration.

Certain objections were made during the course of the trial by the defendant Saint Paul’s Evangelical and Reformed Church to the admission and use of some of the exhibits. Among such exhibits were plaintiff’s exhibits 3 and 4:

A History of the Wapakoneta Union School. This work is written in longhand but no author or date is given. However, on the page preceding this history is a school record of the grades and attendance of the pupils dated May 24, 1878, and signed by Maggie Cordelle, Teacher.

An Atlas of Auglaize County, Ohio, from Records and Original Surveys drawn and compiled by H. G Howland, C. E. Published by Robert Sutton, Philadelphia. This work contains an Historical Sketch of Auglaize County, Ohio, describing the early education and religious groups of the county.

“Historical facts of general and public notoriety may be proved by reputation, and that reputation may be established by historical works, of known character and accuracy. But evidence of this sort is confined in a great measure to ancient facts which do not»presuppose better evidence in existence; and where, from the nature of the transaction, or the remoteness of the period, or the public and general reception of the facts, a just foundation is laid for general confidence.” Morris and Gwynne v. The Lessee of Harmer’s Heirs, Volumes 30 — 33 U. S. Supreme Court Reports, 8 Law Edition 781, 7 Peters, 554, January, 1833 Term.

On such authority and because of the age of these works the objections of the defendant were overruled and the exhibits admitted in evidence.

The pleading of the defendant City of Wapakoneta had no force or effect. The City of Wapakoneta has been divested of any interest in the lots in dispute by operation of law.

48 Volume Statutes 40 of the Laws of Ohio, passed March 13, 1850, provided in part:

“Section III The title to all real estate and other property, belonging for school purposes to any city, town, village, township or district or to any part of the same, which is or may be organized into a single school district in accordance with this act, or the act to which this is an amendment, shall be regarded in law as vested in the board of education thereof, for the support and use of the public schools therein, and said board may dispose of, sell and convey said real estate or any part of the same, by deed to be executed by the president of said board upon a majority vote for such sale at any re'gular meeting of the electors of said district.”

Also contemporaneously effective was a partial recodification of school laws under 51 Volume Statutes 429 of the Laws of Ohio, passed March 14, 1853, wherein:

“Section IX (in part) boards of education — shall be and hereby are invested in their corporate capacity with the title, care and custody of all school houses, school house sites, school libraries, apparatus or other property belonging to the school districts as now organized, or which hereafter may be organized within the limits of their jurisdiction.”;

Repealing the foregoing acts, 70 Volume Statutes 195 of the Laws of Ohio, passed May 1, 1873,

“An act for the reorganization and maintenance of Common Schools” provided under “Chapter VI Provisions Applying to All School Districts,” at “Section 39. All property real or personal, which has been heretofore vested in and is now held by any board of education, or town or city council, for the use of public or common schools in any district is hereby vested in the board of education provided for in this act, having under this act jurisdiction and control of the schools in such district.”;

97 Volume Statutes 354 of the Laws of Ohio, passed April 25, 1904, (Section 3972 Revised Statutes) provided:

“All property, real or personal, which has heretofore vested in and is now held by any board of education for the use of public or common schools in any district is hereby vested in the board of education provided for in this title”; (in this case, Town School District);

In the act establishing “The General Code,” passed Peb. 14, 1910, Section 13767 thereof repealed the Revised Statutes, including Section 3972; however §13766 GC provided:

“Nothing contained in Section 13767 repealing a section of the Revised Statutes — shall be construed to aflect a right or liability accrued or incurred thereunder — and for such purposes said sections — shall continue in full force and effect notwithstanding such repeal.”:

Sec 1.01 R. C., effective October 1, 1953, provides in part:

“The enactment of the Revised Code shall not be construed to affect a right or liability accrued or incurred under any section of the General Code prior to the effective date of such enactment, or an action or proceeding for the enforcement of such right or liability.”

Sec. 1.24 R. C., effective October 1, 1953, provides:

“That in enacting this act it is the intent of the General Assembly not to change the law as heretofore expressed by the section or sections of the General Code in effect on the date of enactment of this act. The provisions of the Revised Code relating to the corresponding section or sections of the General Code shall be construed as restatements of and substituted in a continuing way for applicable existing statutory provisions, and not as new enactments.”

The defendant Maurice M. Howe, the vendee of the plaintiff who has paid a part of the purchase price, was ruled a proper party.

Syllabus of Barnes v. Christy, 102 Oh St 160:

“Courts of equity aim to du complete justice by adjudicating and settling the rights of all parties interested in the subject-matter of the suit; and as a general rule all persons materially interested either legally or equitably in that subject-matter are proper parties, so that there may be a complete decree, which shall bind all and terminate litigation.”

Further, Sec. 11255 GC (§2307.19 R. C.) provides:

“Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of a question involved therein.”

The defendant Howe in his answer alleges that there is a certain former alley, 16 Vz feet in width, at one time known as Oak Alley, extending from Mechanic Street to Main Street in the City of Wapakoneta. Ohio, between Lot No. 57 and Lot No. 58. No testimony, evidence, or argument were introduced to the contrary. The quieting of the title and possession to this alley is asked.

“When the street becomes vacated the public thereby surrenders, or more properly speaking, legally abandons the public use thereof for travel, but the private or special use or easement, adheres to the abutting lots, and becomes part and parcel of them as by accretion, so as to preserve the right of ingress and egress to the lots over the land that formerly formed the street or part thereof. The reason that a street when vacated, becomes a part of the abutting lots, is not because the owner of the lot owned the fee of the street, but because it must go there by necessity, to preserve his easement of ingress and egress, which in many cases is a valuable property right, and without which the lots might be of little value. The street being vacated and abandoned, the public no longer owns it, and it must either revert to the original owner, or adhere to the abutting lots as by accretion. As the original owner is presumed to have received full value for the street when he sold the lots, there is no just reason why he should have the street, when vacated, restored to him. And as the lot owners and those in the line of title have paid an increased price for lots by reason of the easement in the street, it is only just that when the street becomes vacated, the easement should be preserved to them by adding the vacated street to the lots, and therefore this doctrine of accretion in such cases has been adopted in this state, and generally elsewhere.” Hamilton, Glendale & Cincinnati Traction Co. v. Parish, 67 Oh St at page 190.

The undisputed testimony and evidence shows that this alley has not been used by the public for travel for a period in excess of seventy five years inasmuch as it was covered by a school building situated on Lot No 57 and Lot No. 58 for that same period of time.

Hence, the plaintiff, as the owner of the abutting lots, becomes the owner of the alley, at one time known as Oak Alley, extending from Mechanic Street to Main Street in the City of Wapakoneta, Ohio, between Lot No. 57 and Lot No. 58.

Part of the real issues in this action were raised by the answer and cross petition of the Saint Paul’s Evangelical and Reformed Church, hereinafter referred to as the defendant church.

In its pleading, the defendant church further alleges that the Directors of School District Number One in the town of Wapakoneta, Ohio, to which the plaintiff is the successor in title, on April 27, 1849. conveyed by a duty recorded quit-claim deed Lot No. 60 to the German Lutheran Church of Wapakoneta, Ohio, to which the defendant church is the successor.

In its pleading, the defendant church further alleges that the Lutheran Church of Wapakoneta, Ohio, the predecessor of the defendant church, on April 27, 1849, conveyed by a duly recorded quit-claim deed Lot No. 59 to School District Number One, in the town of Wapakoneta, Ohio, the predecessor of the plaintiff.

In its pleading, the defendant church further alleges that “it was not the intention of the parties” that the defendant church should lose and relinquish its title to both Lot No. 59 and Lot No. 60. It is further alleged that for such reason if the defendant church is not the owner of Lot No. 60 by virtue of the quit-claim deed from plaintiff’s predecessors in title, then the defendant church is the owner of Lot No. 59.

In its pleadings, the defendant church further alleges that the plaintiff has neither the right nor the power to sell the lots in dispute.

The remainder of the real issues was brought forth in the trial of the case through the introduction of testimony and evidence.

The original plat of the Town of Wapakoneta, Ohio, Plaintiff’s Exhibit 2, reads as follows:

“The proprietors donated all Streets and Alleys for Public Highways and Lots 59 and 60 for a Meeting-House and School-House. January 25th A. D. 1833.

Peter Aughinbaugh

J. K. Wilds

Joseph Barnett”

Hence, by the original plat the defendant church lays a claim to the ownership of Lot No. 59.

Thus, the defendant church has two claims of ownership:

(1) Ownership of Lot No. 59 under the original plat; and

(2) Ownership of Lot No. 60 by virtue of a quit-claim deed from plaintiff’s predecessor in title.

It is the considered opinion of the court that that original plat represented a dedication of Lot No. 59 and Lot No. 60 for public uses. But was it a statutory or common law dedication? The cases on this point lend themselves to judicial confusion.

“The Statutory dedication, under the laws in force in A. D. 1830, operated to transfer the estate by way of grant, requiring no assent on the part of the public, and to be effective as a dedication, the solemnities required by the statute, as to acknowledgment and recording, must be complied with.

A defective dedication under the statute is evidence, as an act in pais, of a dedication at common law by the owner.

Dedications of land to public uses at common law in general, operate by way of estoppel, and not as grants or transfers of an interest.

To constitute a valid dedication of a street or highway at common law, there must be not only a dedication to public uses by the owner, but also an acceptance of such dedication by the public, and these may be shown by the acts and declarations of the parties and the surrounding circumstances.” Syllabus of Fulton v. Mehrenfeld, 8 Oh St at page 440.

“The first Act, to provide for the recording of town plats, by the Ohio General Assembly, was dated February 14, 1805, effective June 1, 1805 and was virtually a re-enactment of the foregoing.

Thereafter, said Act of 1805 was repealed and a new, changed and much more extensive law was enacted and became effective June 1, 1831, in replacement, and included provisions similar to those above set forth, excepting that in Section 6 thereof it was provided that:

“such map or plat so recorded, shall be deemed a sufficient conveyance to vest the fee of the parcel or parcels of land therein set forth and described, or intended to be for streets, alleys, ways, commons, or other public uses, in such city or town corporate, to be held in the corporate name thereof, in trust to and for the uses and purposes so set forth and expressed or intended.” Zanesville v. Zanesville Canal and Manufacturing Company et, 60 Abs at page 130.

“One of the essential elements of a common-law dedication of property to a public use is the intention of the owner of the property to so dedicate it.

That intention may be expressed or implied from circumstances.

A common law dedication of an owner’s property to a public use has the same effect as an express grant of such property to such a use: and the law requires that there be clear evidence of the owner’s intention to dedicate such property to such a use.” Syllabus of Hicksville v. Lantz et, 153 Oh St at page 421.

“Where an owner oí a subdivision files with the county recorder a plat thereof, delineating thereon numerous lots, together with streets and alleys which are duly dedicated to the public, and such plat also contains a numbered lot designated “Children’s Playground.” of which there is no specific statutory dedication, the one of two necessary elements of a common-law dedication, i. e., the intention of the dedicator to make dedication, is clearly manifested by delineation of the playground by lines and lot number, accompanied with the use of such terminology, the intention being confirmed, subsequent to the recordation, by such owner circulating printed matter containing the subdivision plat showing the playground as a part thereof, and by his agents’ representations to prospective lot purchasers that the playground was a part of such subdivision intended to be used permanently for such purposes.

In such case, the other necessary element of common-law dedication, acceptance or user by the public, is sufficiently shown where the weight of the testimony discloses that use of the playground by the public was quite general in the light of the number of persons who could be expected to so use it, the acceptance of the dedication by a public authority being unnecessary.” Syllabus of Scott et, v. Snyder, 73 Oh Ap at page 424.

There was evidence presented that the statutory requirements of 1833 were met by the recorders of the original plat, bearing out the contention of the plaintiff, that if there was a dedication it was a statutory one.

However, if the dedication were not statutory, there was evidence that it was one at common law.

“In order to constitute or effect a dedication of property to a public use at common law, except in those cases where the dedication is based upon a technical estoppel, three things are necessary, namely: The existence of an intention on the part of the owner to make such dedication; an actual offer on the part of the owner, evidenced by some unequivocal act, to make such dedication; and the acceptance of such offer by or on behalf of the public.

A dedication, at common law, may be either express or implied It is express when the animus dedicandi is expressly declared; it is implied when it arises by operation of law from the acts of the owner. No particular words or ceremonies, or form of conveyances, are necessary. Anything which fully demonstrates the intention of the donor, or the acceptance by the public, is effectual. It is not necessary for a plat or other instrument by which an offer of dedication is made expressly to declare the object of the proposed use to be public, as distinguished from a private usage, it being sufficient if such intent be shown by the surrounding circumstances. As a general rule, however, the acts relied upon as showing an intention to make a dedication must be clear and unequivocal.” 13 O. Jur. at page 738.

The words contained in the original plat are evidence of an intention on the part of the proprietors to make a dedication The recording of the plat can be viewed as an unequivocal act showing an actual offer to make a dedication. And there was some evidence of a church building being erected by a religious organization in approximately 1848 on one of the lots in question which can be viewed as the acceptance of the offer to dedicate by the public.

But whether there was a statutory or common law dedication or both, there was a grant or conveyance of land from the proprietors to the public. “A dedication of property to a public use may be effected by means of a deed of conveyance, or by a reservation therein, or by a will, followed by acceptance thereof by or on behalf of the public.” 13 O. Jur., at page 740. See, also, State, ex rel. v. Smith, 87 Oh Ap at pages 517 and 518.

There is authority that by a dedication of land to a public use a fee simple title is conveyed.

“When a conveyance of land owned in fee simple is made to ana accepted by a municipality in perpetuity for use as a park, and there is no provision for forfeiture or reversion, the entire estate of the grantor is divested, and the title of the municipality thereto is not a determinable fee but a fee simple.” Syllabus of Miller et, v. Brookville, 152 Oh St at page 217. In all fairness it must be stated that from this decision two justices dissented and one did not participate.

“A deed of conveyance for one-half acre of land having been made and delivered by a grantor to two grantees upon consideration of twenty dollars, as follows:

‘To have and to hold the above granted and bargained premises with the appurtenances thereof unto them, the said grantees or their succesors in office, forever, to their own proper use and behoof, but it is expressly to be understood that the said grantees nor their successors in office, shall not at any time use or occupy the aforesaid premises for any other purpose or purposes than whereon to erect or build religious meeting houses or parsonages, and for cemetery or burying ground, and that the said cemetery or burying ground shall be free and common to and for all religious denominations who may desire to occupy the same for the purpose of interring their dead, under the immediate direction and regulations of the said grantees or their successors in office, but this reservation shall not extend to inhibit or prevent the rencing, planting trees or shrubs, making tombs, monuments or other ornamental improvements,’ and a street having been located by the village upon a strip of said land thirty feet wide, for which the successors of said grantees received five hundred dollars, and an action having been brought by the heirs of the grantor against the village for the recovery of the value of said strip of land: Held — that said heirs had no title to said strip of land, and no right to the value thereof.

That as said deed had no words of forfeiture or re-entry, the diverting of said lands to uses and purposes, other than those expressed in the deed, did not in legal effect revest title to said lands in the grant- or, or his heirs.” Syllabus of The Village of Ashland v. Greiner et, 58 Oh St at page 67.

“Such a deed conveying the land to the ‘trustees — and their successors in office forever, to be held in trust’ for the church, and providing that ‘the land is to be returned to the original owners’ in the event that it should ever cease to be used for church purposes, conveys an absolute fee-simple title to the trustees ” Syllabus of First New Jerusalem Church of Lakewood v. Singer et, 68 Oh Ap at page 119.

“A devise of real estate to a religious society ‘to be used as a parsonage,' but with no provision for forfeiture or reversion, conveys ill ol the estate the testator has therein to the devisee, and the failure ot the devisee to use the property as a parsonage will not cause the title to revert to the heirs of the testator." Syllabus of First Presbyterian Church of Salem v. Tarr et, 63 Oh Ap at page 286. See, also, Fulton v. Mehrenfeld, supra.

If a fee simple title is conveyed by a dedication of land to a public use, the issues are readily dissolved. Under the original plat, the oiaintiff’s predecessor received a fee simple title to Lot No. 60 and the predecessor oí the defendant church received a fee simple title to Lot No. 59. Then in 1849, plaintiff’s predecessor conveyed its fee simple title tc Lot No. 60 to the predecessor of the defendant church and the' predecessor of the defendant church conveyed its fee simple title to Lot No. 59 to the plaintiff’s predecessor. Afterwards, the plaintiff occupied Lot No. 59 under such conveyance from the defendant church and occupied Lot No. 60 adversely for more than seventy-five years in defiance of its conveyance of Lot No. 60 to the predecessor of the defendant church. The evidence of adverse possession of Lot No. 60 by the plaintiff for more than twenty-one years being, in the opinion of the court, clear and convincing. And a grantor can claim adversely against his grantee.

“As a rule, continued open and notorious possession by a grantor will be deemed to be adverse where it is of such character as to ue entirely inconsistent with the rights of the grantee. Thus the grantor’s entry after conveyance must be deemed to be adverse where there is no evidence that he entered for or under the grantee, but where he acted in all respects as the sole owner, making leases, receiving rents, paying taxes, improving the property, etc. So the refusal by a grantor, in possession of the premises, to surrender them to the grantee, is notice to the latter that he must proceed to vindicate his rights, and, if he delays in doing so beyond the statutory period, his deed cannot prevail against his grantor’s adverse possession.” Rosenstihl v. Cherry, 114 Oh St at page 413.

“A grantor of real estate by deed containing convenants oí warranty is not estopped from claiming a prescriptive right to the use of a portion of the land conveyed as an easement, where such use is open, notorious, continuous and adverse for a period of more than twenty-one years after such conveyance.” Syllabus of Kimball et, v. Anderson et, 125 Oh St at page 241.

Therefore, the plaintiff still holds the fee simple title to Lot No. 59 by virtue of the conveyance from the predecessor of the defendant church and a good title to Lot No 60 that should be quieted on the basis of adverse possession, if a fee simple title is conveyed by a dedication of land to a public use.

But there is also authority — perhaps, the weight of authority — that by a dedication of land to a public use a fee simple title is conveyed but subject to the public use or uses to which the land was dedicated.

“Public streets, squares, landings and grounds are held in trust for the public, and being so held they are, for the use for which they were dedicated or acquired and subject to the property rights of che abutting owners, under the absolute control of the legislative power of the state.” Syllabus of Louisville & Nashville Railroad Company v. City of Cincinnati, 76 Oh St at page 481. City of Galion v. City of Galion et, 154 Oh St at page 508. Zanesville v. Zanesville Canal and Manufacturing Company, et al., supra. Although it is concerned primarily with lands taken by appropriation, see McMechan v. Board of Education, 157 Oh St at page 251 where it cites Board of Education of Incorporated Village of Van Wert v. Inhabitants of Said Town, 18 Oh St 221.

A study of these and other cases reveals an almost indiscriminate use of such legal labels, brands or tags as “fee subject to a use”, “fee held in trust”, “determinable fee”, “a base or qualified fee” and others. And although the legal profession has made almost a fetish of these and similar words, they hold no magic in themselves. Rather, they iead to meaningless by-paths and lanes of confusion with dead ends instead of acting as guide posts to understandable and equitable solutions of every day problems.

Be that as it may, if a fee simple title subject to a public use is conveyed by a dedication of land to a public use, the exchange in 1849 of Lot No. 59 and Lot No. 60 between the plaintiff’s predecessor and the predecessor of the defendant church made no difference. The public use went right along with the fee simple title.

“Where a legal estate is granted, or devised, to trustees, without words of perpetuity, upon trusts of perpetual duration, chere is much reason and authority for holding that the iegal estate, taken by the trustees, is commensurate with the trust; and therefore, a fee. Miles v Foster, 10 Ohio Reports 1, which seems to recognize a contrary doctrine, doubted.

But wherever the legal title goes, upon the death of the grantee, or devisee, it remains charged with the trust.” Syllabus of Williams et, v. First Presbyterian Society in Cincinnati et, 1 Oh St at page 478. See, also, In re Estate of Hall Southwick v. Koch and Neil, 60 Abs at page 527.

It was clearly the intention of the parties that the use should follow the title by the wording of the deeds exchanged in 1849

The quit-claim deed dated April 27, 1849, from the Trustees of the Lutheran Church in the Town of Wapakoneta, Ohio, to the School Directors of District No. 1 in the Town of Wapakoneta, Ohio, of Lot No 59 contains the following words: “to have and to hold said premises” — “as directors of the said School District and their successors in office for a school house lot forever.”

The quit-claim deed dated April 27, 1849, from the Directors of School District No. 1 in the Town of Wapakoneta, Ohio, to the Trustees of the Lutheran Church in the Town of Wapakoneta, Ohio, contains the following words: “for the use of said church and to them as such trustees whereon to build a meeting house” of Lot No. 60 “to have and to hold to them”— (the trustees) “and to their successors in office for the use above expressed forever.”

Then after the exchange in 1849, the plaintiff’s predecessor held Lot No. 59 subject to a public use and the predecessor of the defendant church held Lot No. 60 subject to a public use.

However, by abandoning the use of the lands sometime prior to 1875, the predecessor of the defendant church lost all its claim to Lot No. 60 under the conveyance from the plaintiff’s predecessor (or to Lot No. 59 under the original plat).

The testimony and evidence were clear and convincing of the non-use by the defendant church or its predecessor from a date sometime prior to 1875. And the failure to assert any claim of ownership from that time until the institution of the present action clearly reveals the intention of the defendant church or its predecessor to abandon the lands.

“To constitute abandonment, nonuse of property must be coupled with intention to relinquish or abandon it.” 1 O. Jur 2d at page 8.

“Under a claim of abandonment of a road in a municipal corporation, proof that no work had been done on the road by the public authorities for fifteen years; that the road was at times in bad condition and impassable; that it passed over a steep hill; was difficut of use; that a new road had been established in the vicinity intended to take its place; that for eleven' years before suit was brought travel had been substantially diverted to the new road, and that portions of the old road had been fenced in, are not sufficient to show abandonment by the pub- I lie.

If non-user of such road may work an abandonment of it, the nonuser must be shown to have extended over a period of twenty-one years.” Syllabus of Nail & Iron Company v. Furnace Company, 46 Oh St at page 544.

There are authorities that hold that upon abandonment of the dedicated use the title reverts to the heirs of the dedicators even in the absence of words of forfeiture or reversion.

“That if the use created by the dedication were abandoned, or should become impossible of execution, the premises would revert to the dedicators or their representatives, and that, without their consent, they could not be divested of their contingent right of reversion by an absolute alienation.” Syllabus of Board of Education of the Incorporated Village of Van Wert v. The Inhabitants of Said Town, Supra.

“Warranty deed to land in 1888 for a valuable consideration to trustees of a named church ‘as long as used for church purposes,’ containing like habendum clause running to such church, but with no stipulation for forfeiture or reversion, passed a fee determinable upon abandonment of such use with immediate right "of entry to grantors’ heirs, since clauses were limitations and not conditions subsequent (§§8510-1 and 10051 GC)”.

Syllabus of Schurch et, Trustees, v. Harraman et, 47 Oh Ap at page 383.

“A deed conveying to a board of education a small lot of ground and containing a clause ‘To have and to hold — so long as the same shall be occupied as a site for a schoolhouse and no longer’ clearly expresses an intention on the part of the grantor to provide for a reverter and forfeiture and conveys a tenure limited to the continued use for school purposes.” Syllabus of Board of Education of Lebanon Village School District v. Hollingsworth et, 56 Oh Ap at page 95. It is worthy of note that in this case the Board of Education had abandoned the use of the premises for only four years before the action was brought. See, also, McMechan v. Board of Education, supra.

The evidence and testimony clearly reveals that the plaintiff held Lot No. 60 (if the exchange of lots in 1849 is recognized, or Lot No. 59, if not recognized) adversely for more than seventy-five years against the heirs of the proprietors, if there was a reversion of title to them. Therefore, the plaintiff holds a good title that should be quieted on the basis of adverse possession to Lot No. 60 (if the exchange of lots in 1849 is recognized, or Lot No. 59, if not recognized) if there was a fee simple title subject to a public use conveyed by the dedication and there was a reverter of the title upon the abandonment of the dedicated use to the heirs of the proprietors in the absence of words of forfeiture or reversion.

However, if a fee simple title subject to a public use was conveyed by the dedication the plaintiff still holds Lot No. 59 subject to a public use (if the exchange of lots in 1849 is recognized, or Lot No. 60, if not recognized) as the predecessor of the defendant church at one time held Lot No. 60 (if the exchange of lots in 1849 is recognized, or Lot No. 59, if not recognized).

But to what public use were Lot No. 59 and Lot No. 60 subject? The original plat contains the words “Meeting House” and “School-House.” There are no words, nor was there any evidence, that the words “MeetingHouse” meant a religious “Meeting-House”. A place for holding town meetings might have been intended. Nor were there words, nor was there any evidence, that the words “Meeting-House” and “School-House” meant two buildings or one. Further, there was lacking in the testimony and the evidence any clear and convincing connection between any occupying religious organization and the defendant church. On the other hand, the identity of the original occupying school authorities with the plaintiff was admitted. Hence, there are grounds for believing that the school might be the only beneficiary intended by the dedication

“Where there is an express dedication by deed but with an ambiguity as to the beneficiary of such dedication the court must look to the intention of the dedicators as may be proved directly or inferentially, and in doing so the court has the right to determine how other persons considered the dedication.

Where in a dedication an ambiguity exists as to which of two possible groups was intended as the dedicatee, and it cannot be manifested by the intention of the dedicator, then if the smaller group is inclusive of the larger one, the larger group will 'be considered the beneficiary of the dedication.” Syllabus of Carter v. Swan, 66 Abs at page 526.

But granting the connection between the original occupying religious organization with defendant church and that it was one of the beneficiaries of the dedication, were the words of dedication in the original plat (or the words of the deeds exchanged in 1849) sufficient to create a use that would cause a reversion of Lot No. 59 or Lot No. 60 to the heirs of the proprietors in the absence of words of forfeiture or reversion? The weight of authority says no.

“When a conveyance of land owned in fee simple is made to and accepted by a municipality in perpetuity for use as a park, and there is no provision for forfeiture or reversion, the entire estate of the grant- or is divested, and the title of the municipality thereto is not a determinable fee but a fee simple.” Syllabus of Miller et al. v. Brookville, supra.

“Where a quit-claim deed, for valuable consideration, conveys to trustees of an unincorporated church association certain real property, ‘To have and to hold — unto the said guarantees and their successors— so long as said lot is held and used for church purposes,’ without any provisions for forfeiture or reversion, such statement is not a condition or limitation of the grant. Since the deed contains no provision for reversion or forfeiture, all of the estate of the grantor was conveyed to the grantees.” Syllabus of In re Matter of Copps Chapel Methodist Episcopal Church, 120 Oh St at page 309.

“A deed of conveyance for one-half acre of land having been made and delivered by a grantor to two grantees upon consideration of twenty dollars, as follows:

‘To have and to hold the above granted and bargained premises with the appurtenances thereof unto them the said grantees or their successors in .office, forever, to their own proper use and behoof, but it is expressly to be understood that the said grantees nor their successors in office, shall not at any time use or occupy the aforesaid premises for any other purpose or purposes than whereon to erect or build religious meeting houses or parsonages, and for cemetery or burying ground, and that the said cemetery or burying ground shall be free and common to ana for all religious denominations who may desire to occupy the same for the purpose of interring their dead, under the immediate direction and regulations of the said grantees or their successors in office, but this reservation shall not extend to inhibit or prevent the fencing, planting trees or shrubs, making tombs, monuments or other ornamental improvements,’ and a street having been located by the village upon a strip of said land thirty feet wide, for which the successors of said grantees received five hundred dollars, and an action having been brought by the heirs of the grantor against the village for the recovery of the value of said strip of land: Held — That said heirs had no title to said strip of land, and no right to the value thereof.

That as said deed had no words of forfeiture or re-entry, the diverting of said lands to uses and purposes, other than those expressed in the deed, did not in legal effect revest title to said lands in the grantor, or his heirs.” Syllabus of The Village of Ashland v. Greiner et al, supra. See also First New Jerusalem Church of Lakewood v. Singer et al; First Presbyterian Church of Salem v Tarr et al, supra.

“In general, however, the courts of Ohio have adopted a middle ground by refusing to impose any arbitrary requirement of particular language but nevertheless have required that there be a clearly expressed intention to convey only a determinable fee. The most significant criterion, as in other state, has been the intention of the grantor Of course, the clearest evidence of an intention to create a determinable fee may be found in conveyances where there has been a coupling of one of the typical phrases before-mentioned (‘so long as’ or ‘until’ or ‘during.’) with a clear and definite expression of a possibility of reverter May v. Board of Education, 12 Oh Ap 456 (1920). But when anything less than that appears, i. e., where a use is specified but there is no express reservation of a possibility of reverter, as in the principal case, there arises a more difficult problem of construction upon which the courts may disagree. The Ohio cases have held in accordance with the general rule before-mehtioned that the mere expression of a purpose will not of and by itself create a determinable fee Volume 4, Number 1 Ohio State Law Journal at pages 107 and 108.

Hence, the plaintiff holds a fee simple title to Lot No. 59 (if the exchange of lots in 1849 is recognized, or Lot No. 60 if not recognized) as the predecessor of the defendant church at one time held a fee simple title to Lot No. 60 (if the exchange of lots in 1849 is recognized, or Lot No. 59, if not recognized) which was lost to the plaintiff on the basis of adverse possession (See Rosenstihl v. Cherry and Kimball et al. v. Anderson et al., supra) even if the Lots were held subject to public use because of the lack of words of forfeiture or reversion in the words of dedication in the original plat (or in the words of the deeds exchanged in 1849).

Therefore, under the theory of a dedication wherein the plaintiff’s predecessor and the predecessor of the defendant church took a fee simple title, the plaintiff holds a fee simple title to Lot No. 59 under the conveyance from the predecessor of the defendant church and good title that should be quieted to Lot No. 60 on the basis of adverse possession.

Again, therefore, under the theory of a dedication wherein the plaintiff’s predecessor and the predecessor of the defendant church took a fee simple title subject to a public use, the plaintiff holds a fee simple title to Lot No. 59 (if the exchange of lots in 1849 is recognized or Lot No. 60, if not recognized) and a good title that should be quieted to Lot No. 60 (if the exchange of lots is recognized, or to Lot No. 59, if not recognized) on the basis of adverse possession tor more than twenty-one years against the heirs of the proprietors as well as against the defendant church and its predecessor.

Inasmuch as this is an action to quiet title, and a fee simple title is being quieted in the plaintiff, the court does not feel it is necessary to pass upon the plaintiff’s right or power to sell the lots in question. The right or power to sell land always has been considered to accompany the fee simple title as long as such sale is according to law. There was no evidence or testimony that the sale of the lots m question was done not according to law.

Therefore, it is hereby ordered, adjudged and decreed that the fee simple title and the possession be quieted in the plaintiff to the alley at one time known as Oak Alley, extending from Mechanic Street to Main Street in the City of Wapakoneta, Ohio, between Lots No. 51 and 58 against any interests or claims of the defendants or any parties either persons or corporations, claiming by, through or under them

It is further hereby ordered, adjudged and decreed that the fee simple title and the possession be quieted in the plaintiff to Lot No. 59 and Lot No. 60 in the City of Wapakoneta, Ohio, against any interests or claims of the defendants or any parties, either persons or corporations, claiming by, through or under them.

The costs of this action are to be divided equally among the plaintiff, the defendant City of Wapakoneta, Ohio, the defendant Saint Paul’s Evangelical and Reformed Church of Wapakoneta, Ohio, and the defendant Maurice Howe.

Exceptions to these findings and conclusions are granted to all parties which have filed pleadings in this action.

Let counsel for the plaintiff draft and submit a journal entry in accordance with these findings and conclusions.