author: By THE COURT.

text:
    BLIZZARD et, Plaintiifs-Appellants, v. NORTON, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5121.
    Decided March 2, 1955.
    Lewis F. Byers, Columbus, for plaintiffs-appellants.
    Olin L. Parrett, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Municipal Court of Columbus, Ohio, rendered in favor of the defendant-appellee.

The action was instituted by the plaintiffs who were licensed real estate brokers seeking to recover a commission for the sale of the defendants place of business. The part of the answer pertinent to the issues presented is a denial “that the plaintiffs found a purchaser ready, willing and able to pay $14,500.00 for his establishment and specifically denies that a meeting of the minds was ever had on the sale of his place of business to any prospective buyer of the plaintiffs.

The plaintiffs offered the purchase agreement in evidence, but offered no testimony to establish the fact that the alleged purchaser was ready, willing and able to consummate the transaction.

A request for a separate finding of facts and conclusions of law was seasonably made, in which the Court found that the contract of sale had been duly signed by the parties thereto, but that the purchaser signed the day following the one on which the defendant signed and that the defendant never knew who the purchasers were; that a commission of $1000.00 was agreed upon and the same was deposited by the purchasers; that on the day following the acceptance o.f the contract by the purchasers the defendant informed the plaintiffs that he had changed his mind and would not sell the business.

The concluding fact found by the Court is as follows:

“There was never a meeting of the minds of Albert Norton and the Daughertys to establish the acceptance of the latter as purchasers by Norton.”

This is not a factual finding but is a conclusion of law which is not warranted by the evidence. There was a meeting of the minds when the contract was signed by the purchaser and the seller regardless of whether or not the seller had personal knowledge as to the identity of the purchasers. If he were interested in this fact the information should have been obtained prior to his signing the agreement.

The Court also erred in the following legal conclusion:

“The plaintiffs must fail in this case because of lack of proof that they had produced in Zella and Herbert Daugherty purchasers who were able to pay the cash price of $14,500.00.”

This Court passed upon the identicál question presented here in the case of Lohr v. Ford, 94 Oh Ap 17, wherein we held that when the broker has procured an enforceable contract between the buyer and seller he is entitled to his commission and he is not required to prove that the buyer was ready, willing and able to consummate the transaction before a recovery may be had.

The judgment will be reversed and cause remanded with instructions that judgment be rendered for the plaintiffs in accordance with the prayer of the petition.

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


source: Caselaw Access Project

license: Public Domain

text:
    HAMPTON, Plaintiff-Appellee, v. McCARY, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5031.
    Decided March 29, 1954.
    William H. Brooks, Columbus, for plaintiff-appellee.
    James F. Little, Columbus, for defendant-appellant.
    (FESS, PJ, CONN and DEEDS, JJ, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By THE COURT.

This appeal is on questions of law from a judgment of the Municipal Court of Columbus, Ohio.

The plaintiff-appellee will be referred to herein as the plaintiff and the defendant-appellant as defendant, as the parties appeared in the Municipal Court.

The judgment here for review is upon a cognovit note, entered September 16, 1953, by the Municipal Court pursuant to waiver of process and confession of judgment, authorized by warrant of attorney annexed to and being a part of said note.

Thereafter, motion to vacate said judgment, supported by affidavit of the defendant, motion for rehearing and motion for new trial were filed by the defendant and same were overruled on September 30th, 1953, and October 16th, 1953, respectively, following which defendant’s notice of appeal was filed on October 28th, 1953.

The pertinent facts necessary for a determination of this appeal are that the defendant, tendered an answer to the petition of the plaintiff, and by written motion aforesaid sought an order of said Court, suspending said judgment and granting defendant leave to file said answer.

The defenses alleged in said answer were in substance that there was another action pending in said Court between the parties, which involved the same matters involved in the action upon said note; that the execution and delivery of said note were obtained through duress, being practiced upon the defendant by the plaintiff and that defendant was not indebted to plaintiff in any amount.

The principal assignment of error relied upon by the defendant is in the refusal of the Court to suspend said judgment and grant defendant permission to file said answer.

The duty resting upon the Court to permit a defendant to interpose a legal defense by a proffered answer, under circumstances shown to exist in the record before us has been established by a number of appellate and Supreme Court decisions: Bellows v. Bowlus, 83 Oh Ap 90; Edge v. Stuckey, 40 Oh Ap 122; Canton Implement Co. et v. Rauh, 37 Oh Ap 544; Moorman v. Schmidt, 69 Oh St 328; Lee v. Benedict, 82 Oh St 302; Foundry Co. v. Chesbrough, 18 O.C.C. 783; Bulkley v. Greene, 98 Oh St 55; First National Bank of Dunkirk v. Smith et, 102 Oh St 120.

It is the conclusion of this Court that there were sufficient allegations contained in the tendered answer of the defendant, which if supported by evidence would prove a defense and under the circumstances then present, the law imposed a clear duty upon the Court to suspend the judgment and permit the filing of said answer and that the Municipal Court erred to the prejudice of the defendant, in its refusal to so order, for which error said judgment will be reversed and the cause remanded for further proceedings according to law.

FESS, PJ, CONN and DEEDS, JJ, concur.


author: By HUNSICKER, J.

text:
    FETZER, Estate of, In re: FETZER, Appellant v. STEELE, Exr. et, Appellees.
    Ohio Appeals, Ninth District, Medina County.
    No. 247.
    Decided August 18, 1954.

      Winter & Winter, Lodi, for appellant.
    L. A. Pelton, .Medina, for appellee Horace E. Steele, Exr., etc., et al.
    John A. Weber and Harold L. Williams, Medina, for appellees C. Harold Fetzer and Donald B. Fetzer.
   OPINION

By HUNSICKER, J.

Calvin M. Fetzer, a resident of Lodi, Medina County, Ohio, died on March 12, 1951. In his last will, he gave to his surviving spouse, Mabel 1. Fetzer, an interest in certain property, his Mercury sedan automobile, “and all of the household goods * *

The will was admitted to probate on March 24, 1951, and on March 26, 1951, the trustee and executor named in the will was appointed executor by the Probate Court of Medina County, Ohio.

The inventory and appraisement was filed in court on July 10, 1951, after permission duly given, by the Judge of the court, to file the inventory and appraisement after the statutory period. On August 3, 1951, the inventory and appraisement was approved by the trial court.

The inventory, in “Schedule F, Property Exempted from Administration,” shows that a 1949 Mercury 4-door sedan automobile and the household goods were set off to the surviving spouse, Mabel I. Fetzer. This property, although given to her by the last will of her deceased husband, Calvin M. Fetzer, was set off to the widow, at her request, as property exempt from administration.

The transcript of the proceedings in the trial court to vacate and set aside the surviving spouse’s selection of this property, which proceedings were held on July 12, 1952, shows that Mabel I. Fetzer notified the executor, by letter dated July 6, 1951, that she wished this property set off to her as property exempt from administration. On November 26, 1951, the court granted authority to transfer the certificate of title to the automobile, to Mabel I. Fetzer. All of such property has been used by her and considered her property since the approval of the inventory and appraisement by the Probate Court.

The Probate Court did not issue a citation to the surviving spouse, Mabel I. Fetzer, requiring her to elect whether to take under the will or under the statute of descent and distribution, as required by §10504-55 GC (now §2107.39 R. C.). No election was ever made by Mabel 1. Fetzer to take under the will of her deceased husband: The only affirmative indication of her desire in this regard comes from her selection of property exempt from administration.

On June 13, 1952, Mabel I. Fetzer, the surviving spouse and appellant herein, filed a motion to vacate and set aside her selection of the property above named as exempt from administration. In this motion she says, among other things, “that at the time her said selection was filed, she had no knowledge as to the amount of the debts of the said estate and could not therefore accurately ascertain the probable value of the net estate, and was therefore in no position to make an election as to whether to take under the will or under the statute of descent and distribution as provided by law.” She further said in such motion that “according to her best estimate of the probable value of the net estate, she was of the opinion that she would elect to take under the statute of descent and distribution, and that she therefore notified the executor * * * of her selection of the said automobile and household goods as property exempt from administration.”

This motion also stated that “she has now reason to believe that the debts in said estate will amount to a much larger sum than heretofore anticipated, and that consequently it would be disadvantageous for her to take under the statute of descent and distribution, as she had originally contemplated; that since she is now taking under the will, and since the last will and testament bequeathed to her the items previously selected as aforesaid, such selection would therefore be a vain and purposeless act if permitted to remain in effect.”

The Probate Court overruled this motion on March 10, 1953, and, from the judgment overruling such motion, Mabel I. Fetzer has prosecuted an appeal on questions of law to this court — saying that the trial court erred in overruling the motion to vacate and set aside the selection of certain property as exempt from administration.

Sec. 10509-54 GC (now §2115.13 R. C.), provided in part as follows:

“When a person dies leaving a surviving spouse, * * * the following property if selected as hereinafter provided, shall not be deemed assets or administered as such * *.*; or, if the personal property so selected be of less value than the total amount which may be selected as herein provided, then such surviving spouse * * * shall receive such sum of money as shall equal the difference between the value of the personal property so selected and such amount, and such sum of money shall be a charge on all property, real and personal, belonging to the estate, prior to the claims of all unsecured creditors of the deceased or of the estate.”

Sec 10504-55 GC (now §2107.39 R. C.), said in part: “After the probate of the will and filing of the inventory, appraisement and schedule of debts, the Probate Court * * * shall issue a citation to the surviving spouse * * * to elect whether to take under the will or under the statute of descent and distribution,” and such statute also further said:

“The election shall be made within one month after service of the citation to elect, or if no citation is issued, within nine months after the appointment of the executor or administrator, whether or not a citation be issued as herein provided. * * * The election shall be entered on the journal of the court.”

Sec. 10504-56 GC (now §2107.43 R. C.), provided' that “the election of the surviving spouse shall be made in person in the Probate Court * * * except * * *.” and §10504-60 GC (now §2107.41 R. C.), provided such exception by saying that:

“If the surviving spouse fails to make such election * * *, such spouse shall be conclusively presumed to have elected to take under the will and such spouse who fails to elect * * * shall be bound accordingly sH * * »»

Thus we have in this case a situation where the surviving spouse, Mabel I. Fetzer, is “conclusively presumed to have elected to take under the will,” and the property which became hers under the will is that property which she expressly asked to have set off to her as property exempt from administration.

Mabel I. Fetzer now asks that her choice, expressed in her letter to the executor, dated July 6, 1951, be set aside and held for naught.

The right to exempt certain property from administration of the estate of a deceased spouse should not be confused with the right of election, for as was said in Scharkofsky v. Landfear, Admr., et, 50 Oh Ap 213, at p. 223, “this widow is entitled to this exemption. She had right and title thereto and right of possession thereof long before she was called upon to make an election which the statute in this instance made for her. Possession thereof should have been given to her long before the time for election.”

The exemption given a widow under the statute is a debt and a preferred claim against'a deceased husband’s estate.

Raleigh et, Admrs., v. Raleigh et, 153 Oh St 160.

The general rule is that, even though provision is made for a widow by the testator, her husband, such fact will not of itself, in the absence of a statute requiring it, put her to her election, but that she may claim both the provision made for her by the will and the statutory allowance.

Scharkofsky v. Landfear, Admr., et, supra.

140 A. L. R. 1220, annotation.

Can it be said that Mrs. Fetzer, the widow of the decedent, waived her right to have this debt paid to her, by her selection of those items of personal property which were specific bequests to her under the will of her deceased husband?

“1. Waiver consists in the relinquishment of a known right. A party cannot be deemed to have waived a right based upon material facts, the existence of which he did not know.”

Michigan Automobile Ins. Co. v. Van Buskirk, 115 Oh St 598.

See, also:

State, ex rel. Hess, v. City of Akron, 132 Oh St 305, at p. 307.

“Unquestionably, the provision made for the benefit of the surviving spouse could be waived by her, but such waiver must clearly appear. Since by law, she was entitled to a beneficial interest, a presumption arises that it was her intention to claim and accept it.”

Stetson, Admr., v. Hoyt et, 139 Oh St 345, at pp. 348-349.

The evidence in this case does not clearly establish an intention on the part of the widow to waive any right she had in her husband’s estate. There is no consideration moving from the estate to her which shows that she released to the estate a preferred debt with a value of $2,500. The automobile and household goods which she received from the executor were her property by the terms of the will. It must be remembered that she by law elected to take under the terms of that will. The items of property she received were specific legacies.

“A specific legacy differs from a general one in that it is not intended by the testator to be paid out of his estate generally but is to be paid solely by delivering to the beneficiary the specific thing given by the will, as distinguished from a designated value.” (Underscoring ours.)

In re Estate of Mellott, etc., 162 Oh St 113, at p. 115.

At the death of the testator, in whom did the title, as to these specific bequests, vest? We think the title vested in Mrs. Fetzer, the widow, subject to the possibility that such bequests might be taken for the debts of the testator. We know that title to the personal property of an estate passes by the will to the executor, as trustee for the benefit of the creditors, legatees, and distributees. Central Natl. Bank, Savings & Trust Co. v. Gilchrist et, 23 Oh Ap 87. This title, however, is a mere legal title for the purposes of administration. See 4 Page on Wills (Lifetime Ed.), Sec. 1586, at p. 511.

We thus have a situation where Mrs. Fetzer received from the executor, prior to the payment of debts, both full legal title and possession of items of personal property which were specifically bequeathed to her. She received only that to which she was legally entitled, and hence cannot be said to have waived any right, or that for any consideration moving from the estate to her she received any property other than such as was rightfully hers.

We therefore determine that when, by law, the election to take under the will of her deceased husband became effective, Mrs. Fetzer (notwithstanding her request for and receipt of immediate possession of the specific bequests) was entitled to receive the items of specific personal property and the exemption allowance provided by statute. The action of the trial court in refusing to grant the motion to vacate and set aside the request of the widow to take specific items of personal property in lieu of her personal exemption, was, under the facts of this case, contrary to law.

The decision previously announced herein, upon submission of the case on the briefs of the parties, is withdrawn. The judgment is reversed, and the cause remanded to the Probate Court of Medina County for further proceedings.

DOYLE, PJ, and STEVENS, J, concur.


author: By MR. JUSTICE HARLAN.

text:
    SOCIETY FOR SAVINGS, Petitioner, v. BOWERS, TAX COMMR. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION, Petitioner, v. BOWERS, TAX COMMR.
    United States Supreme Court.
    Nos. 204, 220.
    Decided May 16, 1955.

      Robert F. Maskey, Cleveland, for appellant Society for Savings in City of Cleveland: David A. Gaskill, James A. Weeks, Edgar P. Stocker, Jerome C. Fisher, Charles W. Sellers and Thompson, Hiñe & Flory, Cleveland, on the brief.
    Robert G. Day, Warren, for appellant First Fed. Savings and Loan Assn.; Hoppe, Day & Ford, Columbus, on the brief.
    Joseph S. Gill, Columbus, for appellee; C. William O’Neill, attorney general, Columbus, on the brief. •
    Simon E. Sobeloff, solicitor general, H. Brian Holland, assistant U. S. attorney general, Ellis N. Slack, Hilbert P. Zarky and Erwin A. Goldstein, special assistants to U. S. attorney general, brief for United States as amicus curiae.
   OPINION

By MR. JUSTICE HARLAN.

In 1829 this court decided in Weston v. City Council of Charleston, 2 Pet. 449, 7 L. Ed. 481, that obligations of the federal government are immune from state taxation. This rule, aimed at protecting the borrowing power of the United States from state encroachment, was derived from the “Borrowing” and “Supremacy” Clauses of the Constitution, and the constitutional doctrines announced in McCulloch v. State of Maryland, 1819, 4 Wheat. 316, 4 L. Ed. 579. It was subsequently embodied in a succession of federal statutes, the existing statute being R. S. §3701, 31 U.S.C. §742, 31 U.S.C.A. §742. The rule has been carried forward to embrace indirect taxation of such obligations through their inclusion in a tax imposed on all the property of a taxpayer. It is quite immaterial that the state tax does not discriminate against the federal obligations. People of State of New York ex rel. Bank of Commerce v. Commissioners of Taxes of New York City, 1862, 2 Black 620, 17 L. Ed. 451; In re Bank Tax Case, 1864, 2 Wall. 200, 17 L. Ed. 793; Farmers and Mechanics Savings Bank of Minneapolis v. State of Minnesota, 1914, 232 U. S. 516, 34 S. Ct. 354, 58 L. Ed. 706; New Jersey Realty Title Ins. Co. v. Division of Tax Appeals, 1950, 338 U. S. 665, 70 S. Ct. 413, 94 L. Ed. 439.

The two cases now before us involve the application of that rule, in a somewhat novel situation. Society for Savings in the City of Cleveland and First Federal Savings and Loan Association of Warren, two mutual savings banks having no capital stock or shareholders, and located in Ohio, attack the validity of an Ohio property tax, as assessed against them, on the ground that they were required to include in the property values upon which the tax was computed United States bonds held in their security portfolios. Had these bonds been excluded, the entire tax would have been wiped out in both instances. The Ohio Tax Commission thought these government bonds were excludible. The Ohio Board of Tax Appeals reversed. The Supreme Court of Ohio sustained the board in each instance. The two banks are here by appeal from the judgment of the Ohio Supreme Court in each case. The cases were argued together, and are so treated in this opinion.

The tax in question was assessed in the names of these banks under §§5408, 5412 and 5638-1 GC (§§5725.04, 5725.07 and 5707.03 R. C.), upon the book value of their “capital employed, or the property representing it”, §5408, “at the aggregate amount of the capital, the surplus or reserve fund and the undivided profits”, §5412. The tax was at the rate of two mills on the dollar, §5638-1. No claim is made that the taxes constituted a franchise tax or some other kind of privilege tax. Cf. Educational Films Corp. of America v. Ward, 1931, 282 U. S. 379, 51 S. Ct. 170, 75 L. Ed. 400.

The Supreme Court of Ohio recognized that this tax, based as it was upon the inclusion of federal obligations, would have to fall if directed against the banks. New York ex rel. Bank of Commerce v. Commissioners of Taxes, supra; Bank Tax Case, supra. This tax, though, was not considered to be against the banks. Holding that the depositors of a mutual savings bank have an interest similar to that of shareholders of other banks, the Ohio, court found instead that the tax was imposed upon the “intangible property interests.” [161 Oh St 122, 53 O. O. 53, 118 N. E. (2d) 661] of the depositors as the owners of each bank. The bank’s capital, surplus fund, and undivided profits, which we will refer to as their surplus, were regarded as not themselves the subject matter of the tax, but as simply the measure of the tax against the depositors, and the banks were treated as tax-collecting agents rather than as taxpayers.

In so deciding the Ohio court relied upon a gloss on the rule of immunity stated above. It has been held that a state may impose a tax upon the stockholders’ interests in a corporation, measured by corporate asset values, without making any deduction on account of United States securities held by the corporation. This doctrine had its origin in cases involving national bank stock. There, congressional consent to state taxation of the stock of national banks, upon certain conditions, was held, over strong dissent, to permit such taxes to be assessed without the'exclusion of federal obligations owned by the banks. Van Allen v. Assessors, 1865, 3 Wall. 573, 18 L. Ed. 229; National Bank v. Commonwealth of Kentucky, 1869, 9 Wall. 353, 19 L. Ed. 701; Des Moines National Bank v. Fairweather, 1923, 263 U. S. 103, 44 S. Ct. 23, 68 L. Ed. 191. This result was reached in part on the theory that the stockholders’ interests in a corporation represent a separate property interest from the corporation’s ownership of its assets so that a tax on the stockholders’ interests is not a tax on the federal obligations which are included in the corporate property. This rationale has been carried over to cases involving stock of state-created banks, and thus a tax on their shareholders, though measured by corporate assets which include federal obligations, is held not to offend the rule immunizing such obligations from state taxation. Cleveland Trust Co. v. Lander, 1902, 184 U. S. 111, 22 S. Ct. 394, 46 L. Ed. 456. Further, in levying a tax on shareholders a state may require its payment by the corporation, as a collecting agent. Corry v. Mayor and Council of Baltimore, 1905, 196 U. S. 466, 25 S. Ct. 297, 49 L. Ed. 556. The result is that when, as is usually the case, the shareholder tax is measured solely by corporate asset values, such a tax is difficult to distinguish from a tax imposed upon the corporation itself, so far as the practical impact of the two types of taxes upon. corporate-owned federal obligations is concerned. Nevertheless, this exception to the general rule of immunity is firmly embedded in the law.

The focal point of these appeals is thus whether we are to regard this tax as imposed on the banks or, as the Ohio court held the legislature intended, on their depositors. Were we free to construe Ohio’s statute de novo we might have difficulty in reaching the conclusion which the Ohio court did. Suffice it to say at this point: The statute is barren of any language expressly imposing this tax on the depositors, and contains no provision giving the bank any right to recover the tax from the depositors, as might be expected if the bank had been regarded as a mere tax-collecting agent. By contrast, the taxes laid by the Ohio General Code on (a) the shares of incorporated financial institutions whose capital is divided into shares, (b) the shares of unincorporated institutions whose capital is divided into shares, and (c) deposits, are imposed on the shares of the stockholders”, §5408 GC (§5725.04 R. C.), and on the deposits “as taxable property of its depositors.” §5673-2 GC (§5719.12 R. C.). In the case of these taxes, not here involved, the bank is given full rights of reimbursement from the stockholders or depositors, as the case may be, and it is clear that the institution in paying such taxes is acting only as a collection agent. Secs. 5672 GC, 5763 GC, 5673-1 GC, 5673-2 GC (§§5719.09 R. C., 5719.10 R. C., 5719.11 R. C., 5719.12 R. C.).

And beyond these considerations, one might not have expected the legislature to tax the ownership interests of the depositors of these banks on the same basis as stockholders are taxed. The asserted interest of the depositors is in the surplus of the bank, which is primarily a reserve against losses and secondarily a repository of undivided earnings. So long as the bank remains solvent depositors receive a return on this fund only as an element of the interest paid on their deposits. To maintain their intangible ownership interest, they must maintain their deposits. If a depositor withdraws from the bank he receives only his deposits and interest. If he continues, his only chance of getting anything more would be in the unlikely event of a solvent liquidation, a possibility that hardly rises to the level of an expectancy. It stretches the imagination very far to attribute any real value to such a remote contingency, and when coupled with the fact that it represents nothing which the depositor can readily transfer, any theoretical value reduces almost to the vanishing point. Cf. Collett v. Springfield Savings Society, 13 Ohio Cir. Ct. Rep. 131, affirmed, 1897, 56 Oh St 776, 49 N. E. 1109.

The Ohio court, however, has held that this tax is imposed on the depositors. But that does not end the matter for us. We must judge the true nature of this tax in terms of the rights and liabilities which the statute, as construed, creates. In assessing the validity of the tax under federal law we are not bound by the state’s conclusion that the tax is imposed on the depositors, even though we would be bound by the state court’s decision as to what rights and liabilities this statute establishes under state law. The court’s mere conclusion that the tax is imposed on the depositors is no more than a characterization of the tax. “Where a federal right is concerned we are not.bound by the characterization given to a state tax by state courts or Legislatures, or relieved by it from the duty of considering the real nature of the tax and its effect upon the federal right asserted. Carpenter v. Shaw, 1930, 280 U. S. 363, 367, 50 S. Ct. 121, 123, 74 L. Ed. 478. See, also, New Jersey Realty Title Ins. Co. v. Division of Tax Appeals, supra, 338 U. S. at page 674, 70 S. Ct. at page 418; Educational Films Corp. of America v. Ward, supra, 282 U. S. at page 387, 51 S. Ct. at page 171. “Neither ingenuity in calculation nor form of words in state enactments can deprive the owner of the tax exemption established for the benefit of the United States.” Missouri ex rel. Missouri Ins. Co. v. Gehner, 1930, 281 U. S. 313, 321, 50 S. Ct. 326, 328, 74 L. Ed. 870. Therefore, we proceed to examine what rights and liabilities the statute creates.

We note, first, that should the bank be unable to pay the tax, after it has been assessed, there is no provision entitling the state of Ohio to collect it from the depositors. A tax against the depositors which is recoverable only from the bank looks like a tax against the bank. And if the tax is in fact against the bank, it does not matter whether the ultimate economic impact is passed on to the depositors. Home Savings Bank v. City of Des Moines, 1907, 205 U. S. 503, 519, 27 S. Ct. 571, 576, 51 L. Ed. 901.

Next, it appears that the statute does not relieve the bank from having to pay the tax on the “intangible property interest” of a depositor who had an account with the bank on the assessment date of the tax, but has withdrawn his account before the collection date. And if the bank is required to pay on the former depositor’s account, there is no provision entitling the bank to reimbursement from him. It should be observed that in the case of the deposit tax the statute does contain provisions protecting the bank in such a situation. Secs. 5412 GC, 5673-1 GC, 5673-2 GC (§§5725.07 B. C., 5719.11 K. C., 5719.12 B. C.).

Finally, and perhaps most important, if this tax is on the depositors, we must find somewhere a right in the bank to make itself whole from the depositors for the taxes paid on their account. In all the cases upholding state taxes against shareholders, without the exclusion of federal obligations owned by the corporation, an express or implied right of reimbursement was presupposed. See Van Allen and other eases, supra. As already observed, in the case of the Ohio taxes on shares and deposits the statute contains such a right, §§5673 GC, 5673-2 GC (§§ 5719.10 B. C., 5719.12 B. C.). In the present cases we can find no such right. It may be true that where the tax paid by the bank is less than the interest which the bank contemplates paying the depositors, no such right of reimbursement is necessary. If, for example, a bank has $100,000 of undivided profits, intends to pay its depositors $75,000 interest on their deposits, and has an obligation for this tax of $10,000, it perhaps makes no difference whether the bank pays $65,000 to its depositors without recovering anything back from them, or pays them $75,000, but later recovers back the $10,000 tax paid for their account. Under either method the bank comes out whole, and the depositors receive the same net interest payment. But if the bank has declared the $75,000 interest payment before the tax is due, we can find nothing in the statute which would give the bank the right either to deduct the $10,000 tax from the interest payment, or to recover it back from the depositors. And conceivably the tax might exceed the interest payable to the depositors-, in which event the bank would be left short, absent a right to recover the excess from the depositors.

The Ohio court thought that in charging the tax to surplus, the bank in reality would be reducing the depositor’s interest in the surplus, which it described as being “owned” by them, and that therefore in no circumstance was a right of reimbursement necessary. But there are difficulties with this proposition. If this means that the corporate fiction should be disregarded, the result would be that the government bonds would have to be excluded, since on this hypothesis such securities should then be treated as the property of the depositors. On the other band, if the Ohio court was referring to the depositors’ equitable interest in the surplus, as seems more likely, then without a right of recoupment the bank as well as the depositors bears the impact of the tax.

Without provisions protecting the bank against the burdens of the tax, we cannot assume that the statute’s operation will not infringe on the immunity of the federal obligations held by the banks. It is not adequate merely to suggest that a bank may be entitled to make itself whole from the depositors under Ohio common law. For no such common-law right has been called to our attention. Rather, the Ohio court’s opinion indicates that the bank may be left without any right of reimbursement.

We conclude that this tax is on the depositors in name only, and that for federal purposes it must be held to be on the banks themselves. Accordingly, the judgments in both cases are reversed.

Mr. Justice BURTON took no part in the consideration or decision of these cases. ■

      . Art. I, §8, cl. 2; Art. VI, cl. 2.

      . “Except as otherwise provided by law, all stocks, bonds, treasury notes, and other obligations of the United States, shall be exempt from taxation by or under state or municipal or local authority.”

      . Society for Savings was incorporated under Ohio law, and First Federal under the Home Owner’s Loan Act of 1933, as amended, 48 Stat. 128, 12 U. S. §1461 et seq., 12 U. S. C. A. §1461 et seq. Nothing turns here on the difference in their origins.

      . In the view we take of this case, it is unnecessary to consider the taxable status of certain Federal Home Loan Bank stock owned by First Federal, which is also claimed to be exempt.

      . 1954, 161 Oh St 122, 53 O. O. 53, 118 N. E. 2d 651 (1954); 161 Oh St 149, 53 O. O. 66, 118 N. E. 2d 667. We noted probable jurisdiction at 348 U. S. 807, 75 S. Ct. 49.

      . “Sec. 5408 (§5725.04 R. C.). All the shares of the stockholders in a financial institution, located in this state, incorporated or organized under the laws of the state or of the United States, the capital stock of which is divided into shares, excepting such as are defined as ‘deposits’ in §5324 GC (§5701.05 R. C.), and all the shares of the stockholders in an unincorporated financial institution, located in this state, the capital stock of which is divided into shares held by the owners of such financial institution, and the capital employed, or the property representing it, in a financial institution the capital of which is not divided into shares, or which has no capital stock, located in this state, shall be listed and assessed at the book value thereof, and taxed in the manner provided in this chapter.”
      “Sec. 5412 (§5725.07 R. C.). Upon receiving such report the tax commissioner shall ascertain and assess all the taxable shares of such financial institution, or the value of the property representing the capital employed by such financial institution, not divided into shares, at the aggregate amount of the capital, the surplus or reserve fund and the undivided profits as shown in such report, and the amount of taxable deposits of such institution in each county in which the institution maintained an office or offices for the receipt of deposits. Such amounts shall be assessed in the name of such financial institution excepting that the amounts of the taxable deposits wholly withdrawn from each such institution within the times mentioned in §5411-2 GC (§5725.02 R. C.). and separately set forth in such report shall be subtracted from the amount of taxable deposits so assessed and separately assessed in the names of such respective depositors. In the case of an incorporated financial institution all of whose shares constitute deposits as defined in §5324 GC (§5701.05 R. C.) such assessment of shares shall exclude the capital stock thereof as so shown but shall include the surplus or reserve and undivided profits so shown.”
      “Sec. 5638-1 GC (§5707.03 R. C.). Annual taxes are hereby levied on the kinds and classes of intangible property, hereinafter enumerated, on the intangible property tax list in the office of the auditor of state and duplicate thereof in the office of treasurer of state at the following rates, to wit: * * * deposits, two mills on the dollar; share in capital employed by financial institutions, two mills on the dollar; * *

      . See note 8, infra.

      . “Sec. 5672 GC (§5719.09 R. C.). Taxes assessed on nonwithdrawable shares of stock, of a financial institution, shall be a lien on such shares from the first day of January in each year until they are paid.
      “It shall be the duty of every financial institution to collect the taxes due upon its shares of stock from the several owners of such shares and to pay the same to the treasurer of state and any financial institution failing to pay the said taxes as herein provided, shall be liable by way of penalty for the gross amount of the taxes due from all the owners of the shares of stock, and for an additional amount of one hundred dollars for every day of delay in the payment of said taxes.”
      “Sec. 5673 GC (§5719.10 R. C.). Such financial institution paying to the treasurer of state the taxes assessed upon its shares, in the hands of its shareholders respectively, as provided in the next preceding section, may deduct the amount thereof from dividends that are due or thereafter become due on such shares, and shall have a lien upon the shares of stock and on all funds in its possession belonging to such shareholders, or which may at any time come into its possession, for reimbursement of the taxes so paid on account of the several shareholders, with legal interest; and such lien may be enforced in any appropriate manner.
      “Sec. 5673-1 GC (§5719.11 R. C.). Taxes assessed on deposits in a financial institution in this state shall be a lien on the deposit of each person as of the day fixed by the tax .commission of Ohio for the listing of such deposits. Taxes assessed on the shares of stock of such an institution, all of whose shares are withdrawable and defined as deposits in chapter four of this title, shall be a lien on such shares so defined as deposits as of the day so fixed. It shall be the duty of every financial institution to pay the taxes on the amount of such deposits and/or withdrawable shares assessed in its name to the treasurer of state and any such institution failing to pay such taxes as herein provided shall be liable by way of penalty for the gross amount of the taxes due on and with respect to all its deposits and with-drawable shares assessed in its name and for an additional amount of one hundred dollars for every day of delay in the payment of such taxes.
      “Sec. 5673-2 GC (§5719.12 R. C.). A financial institution so required to pay to the treasurer of state the taxes assessed upon its deposit accounts, as taxable property of its depositors, and/or upon its withdrawable shares as taxable property of its shareholders respectively, as provided in the next preceding section, may, upon receipt of notice of the day fixed for the listing of such deposits, charge the amount thereof to and deduct the same from the deposit of each depositor, or from the interest that is due or thereafter becomes due thereon, or from the dividends that are due or thereafter become due thereon, as the case may be, and shall have a lien upon such deposit, interest and/or dividends and on all funds in its possession belonging to such depositor or shareholder, or which may .at any time come into its possession, for reimbursement of the taxes so payable, with legal interest. Such lien may be enforced in any appropriate manner at any time within six months after the payment of the taxes to the treasurer.”

      . As construed by the state court the “intangible property tax” on depositors applied to different property than did the “deposit” tax also imposed on them, involving, as we see it, no question of duplication or overlapping between the two taxes.

      . Sec. 5412 GC (§5725.07 R. C.) provides in part: “Upon receiving such report the tax commissioner shall ascertain and assess * * * the amount of taxable deposits of such institution in each county in which the institution maintained an office or offices for the receipt of deposits. Such amounts shall be assessed in- the name of such financial institution excepting that the amounts of the taxable deposits wholly withdrawn from each such institution within the times mentioned in §5411-2 GC (§5725.02 R. C.)* and separately set forth in such report shall be substracted from the amount of taxable deposits so assessed and separately assessed in the names of such repective depositors.”
      For §§5673-1 and 5673-2 (§§5719.11 and 5719.12 R. C.), see note 8, supra.
      *That is, between the date of assessment and the bank’s receipt of the notice of such date, or if no notice is received, the next January 1.

      . See note 8, supra.

      . Even so, if a comparable situation arose in connection with the tax on shareholders, the bank would have a right of reimbursement under the provisions of the Ohio statute. See note 8, supra.

      . The Ohio court stated: “In our opinion, such a provision [an express right of reimbursement] is not necessary to enable such a financial institution to secure such reimbursement,” 161 Oh St at page 136, 53 O. O., at page 60, 118 N. E. 2d at page 659. It is clear that by this statement the court did not mean that an implied right of reimbursement existed under Ohio law, for it then went on to hold that “the financial institution, which pays the tax on [the depositors’] property interests in the corporation, will always be able to reimburse itself by reducing the ultimate value of the property interests of those who are the only ones who can have any claim to benefit from the ownership interests taxed.” Id., 161 Oh St at page 137, 53 O. O., at page 60, 118 N. E. 2d at page 659. This is of course not reimbursement in any proper sense of the term.


author: By CECIL, District Judge.

text:
    HAHN (nee KIEFER), Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
    United States District Court, S. D. Ohio, E. D.
    No. 3741.
    Decided June 18, 1954.
    Vorys, Sater, Seymour & Pease, Columbus, for plaintiff.
    Hugh K. Martin, U. S. Attorney, Columbus, David W. Richter, special asst, to the atty. gen., for defendant.
   OPINION

By CECIL, District Judge.

The plaintiff, Gertrude B. Hahn, filed a complaint in this case to recover from the defendant, The United States of America, the sum of $133 with interest, which she claimed by reason of taxes erroneously collected from her for the years 1947, 1948 and 1949.

The case was tried and submitted to the court upon the pleadings, thé evidence and briefs of counsel.

The question in this case arises out of the manner in which the plaintiff received these properties. If she received them by deed of gift from her mother, then she must take as the valuation of said properties for income tax purposes, the cost to the donor, who is the mother of the plaintiff in this case. Section 113 (a) (2), Title 26, U.S.C.A.

If the plaintiff received the properties by inheritance under her mother’s will, then the valuation will be the real value as of the date of the inheritance. 113(a) (5), Title 26, U.S.C.A.

It is the claim of the plaintiff that the deeds in question were deeds of trust and that she held the property in trust for her mother and, therefore, acquired the fee by inheritance.

Upon consideration of this case, the court finds the following facts:

1. That in 1934 the plaintiff, then Gertrude B. Kiefer, was living with her widowed mother at 1284 Champion Avenue, Columbus, Ohio; that the plaintiff had lived with her mother at that address since 1930 and that she had lived alone with her mother since March of 1928.

2. That in 1930 and thereafter, until 1934, the plaintiff had one sister and two brothers; that the sister’s name was Catherine Nehr and that in the year of 1934 she was married; that the older brother was named Edmund C. Kiefer; that the younger brother was named Louis and died in 1934.

3. That in 1934, Mary Kiefer, the mother of the plaintiff, had the legal title and possession of two pieces of real estate known as the Champion Avenue property and the Pearl Street property.

4. That on May 15, 1934, at a time when the plaintiff was not with her mother, the mother deeded the Champion Avenue property (plaintiff’s Exhibit 1) to the plaintiff and the Pearl Street property to the sister; that she placed these two deeds in her safety deposit box at the Buckeye Building & Loan Association.

5. That the mother, Mary Kiefer, told her daughter Gertrude, the plaintiff herein, that she had made the deeds and placed them in her safety deposit box and that she wanted the plaintiff to have the Champion Avenue property after her death; that at the same time she told the plaintiff she had deeded the Pearl Street property to Catherine Nehr and that it was for her sister’s use after the mother’s death.

6. That the plaintiff had access to the mother’s safety deposit box and frequently took her mother to the box; that while she knew the deeds were there, she probably actually never saw them.

7. That on June 28, 1939, the mother, Mary Kiefer, because of some misunderstanding with her daughter, Catherine, destroyed the deed oi May 15, 1934, to the Pearl Street property and executed a new deed foi said property to the plaintiff herein (plaintiff’s Exhibit 2).

8. That on this same' date she made and executed a will (plaintiff’s Exhibit 3); that by Item 5 of said will she gave to her daughter Gertrude, the plaintiff herein, specifically the Champion Avenue property, and by a general bequest in the same Item, she gave to the plaintiff herein, all of her real estate.

9. That on November 2, 1944, the plaintiff herein recorded deeds marked Plaintiff’s Exhibit 1 and Plaintiff’s Exhibit 2.

10. That in 1944, the mother, Mary Kiefer, advised her daughter that the son and brother, Edmund, had asked the mother for one-half of the double house on Champion Avenue, and inquired about what provision she had made for disposal of her property; that thereupon the plaintiff talked to her employer and upon his advice, sought legal counsel with Mr. Harold Tangeman, who appears as counsel for plain-, tiff in this case; that upon his advice the deeds were recorded.

11. That she discussed with her mother her intention to have the deeds recorded and advised her that there would be no difference in the mother’s ownership of the property; she would continue to collect the rents just the same as if the deeds had not been recorded.

12. That the plaintiff asked Mr. Tangeman what would happen to her mother’s interest in the property, the deeds being recorded, if she, the plaintiff, should die before her mother; that she was then advised by Mr. Tangeman to write a letter to her mother, stating that she held property in trust for the mother; that thereupon, on November. 2, 1944, the plaintiff signed a letter (plaintiff’s Exhibit 4) which she gave to her mother. The text of the letter is as follows:

“This is to acknowledge the fact that I hold the property which you deeded to me on May 15, 1934, and the property which you deeded to me on June 28, 1939 in trust for you during your lifetime.

“You are to receive all of the income of these properties so long as you live.

“Upon your death, the properties are to be my sole and absolute property in fee simple.”

13. That the mother, Mary Kiefer, died December 23, 1946.

14. That on March 26, 1948, the plaintiff, as executrix of her mother’s estate, filed an application for the determination of inheritance tax (defendant’s Exhibit A) which includes an itemization of the assets of the estate, but does not include either of the properties in question.

15. That on March 1, 1951, the plaintiff, as executrix of her mother’s estate, filed a supplemental application (defendant’s Exhibit B) for the determination of inheritance tax; that in the Schedule of Assets attached to this application, the Pearl Street property is listed as having a value of $4,500, and the Champion Avenue property is listed as having a value of $12,500.

16. That on March 14, 1951, the plaintiff filed a claim (defendant’s Exhibit C) for refund of taxes.

17. That the plaintiff, Gertrude B. Hahn, never claimed or exerted any right of ownership or interest in either of these properties until after the death of her mother, Mary Kiefer.

18. That the mother, Mary Kiefer, managed the properties in question throughout her lifetime; received all of the rents and paid all of the taxes and expenses.

19. That the plaintiff, in making out her income tax return for the years 1947, 1948 and 1949 used her mother’s cost as a basis of evaluation for the purpose of figuring depreciation.

20. That in December, 1946, the fair market value of the Pearl Street property was $4,500, $500 of which was the value of the land and $4,000 of the value of the building; that at the same time the Champion Avenue property had a fair market value of $12,500, of which $2,000 was the value of the land and $10,500 was the value of the building.

21. That on or about the 26th day of February, 1951, the plaintiff sold the Pearl Street property.

22. That in 1950, the plaintiff was married and became Mrs. Gertrude Hahn.

Can these facts be naturally and logically construed so as to create the relationship of trustee and cestui que trust between the plaintiff and her mother, Mary Kiefer?

The most recent pronouncement of the Supreme Cort of Ohio upon this subject is in the case of Hill v. Irons, 160 Oh St 21, 50 O O 485, 113 N. E. 2d 243, 245, The first syllabus of this case reads as follows:

“In order to engraft a trust upon an absolute deed, the declaration of such trust must be contemporaneous with the deed, and the evidence relied upon must be clear, certain and conclusive and must establish the existence of the trust beyond a reasonable doubt.”

In the opinion, Middleton, J., quoted from Russell v. Bruer, 64 Oh St 1, 59 N. E. 740, as follows:

“ ‘A trust engrafted on an absolute deed may be shown by parol evidence; but the declaration of such trust must be contemporaneous with the deed, and the evidence beyond a reasonable doubt as to the existence of the trust, and must be clear, certain, and conclusive as to its terms and conditions.’ ”

If a trust were created in this case, was it created on May 15, 1934 and June 28, 1939, the respective dates of the deeds in question, or was it created on November 2, 1944, the date of the recording of both deeds?

On or about May 15, 1934, the mother, Mary Kiefer, announced to the plaintiff, that she had deeded her the Champion Avenue property and she had deeded to her daughter, Catherine, the Pearl Street property.

On page 5 of the record, the plaintiff states what her mother told her in the following language:

“She told me that after her death, she wanted this property to belong to me. I had always lived with her and taken care of her and that was her wish.”

With reference to the Pearl Street property, the plaintiff testified on the same page, “It was made out for my sister’s use after my mother’s death.”

Under the facts as above stated, the court considers that there was no delivery of these deeds. The transaction of making out these two deeds has all the appearance of being an intent to convey the property at the death of the mother. It would be in accord with a common idea among laymen that property can be transferred at death in such a fashion and thus avoid administration and other complications of transferring property after death.

The conclusion that the mother had no intention of delivering the deeds at the time they were made is fortified by her later action of destroying the deed of the Pearl Street property to the daughter Catherine. This came about as a result of some dissention between the mother and the daughter Catherine. It could well have happened to the plaintiff and the deed of the Champion Avenue property.

In 1944, brother Edmund began nosing around about the mother’s anticipated disposition of her property. He apparently made a strong suggestion that the mother give him one-half of the Champion Avenue property. This incident caused some apprehension on the part of the plaintiff and her mother. As a result of it, the plaintiff talked to her employer, who recommended that she seek legal counsel. As a result of this counsel, the deeds were recorded on November 2, 1944. Apparently after this advice, the plaintiff discussed with her mother, her intention to record the. deeds and assured her that there would be no change so far as the plaintiff was concerned in the mother’s ownership of the property; the mother was to collect the rent just the same as if the deeds had not been recorded. R. P. 11.

There is nothing in the record to indicate what, if anything, the mother said concerning this proposed transaction. Apparently she acquiesced in it. There is not one word here that would indicate that the mother and daughter intended to create a trust.

This transaction has the appearance of being a delivery of the deeds; a gift of the remainder to the plaintiff with the oral reservation of a life estate in the mother. Such an oral creation of a life estate would be good as between the mother and the daughter, but would not be binding as to third persons.

Counsel for plaintiff points to plaintiff’s Exhibit 4 that a trust was created. This is a mere self-serving declaration. The plaintiff cannot make evidence for herself by writing a letter containing the statements she wishes to prove. Leach & Co. v. Peirson, 275 U. S. 120, 48 S. Ct. 57, 72 L. Ed. 194.

The court does not consider that the will of the mother, which was executed on the same day as the deed to the Pearl Street property has any particular significance with reference to the creation of a trust. The mother was apprehensive about action that might be taken by the son, Edmund, and daughter, Catherine, with reference to her disposition of property. She may well have considered that it would be wise to fortify the deeds with a will.

The Probate Court of Franklin County never made a determination of the question as to whether or not the facts in this case created a trust. The plaintiff, through her counsel, filed an amended application for the determination of inheritance tax and included these properties which had not been included in the original application. Obviously, the court permitted the estate to be increased in this manner.

The burden of proof is upon the plaintiff to show that this transaction was something other than a gift. She seeks to do this by showing that under the facts a trust relationship was established.

Referring again to the Hill case, supra, Middleton, J., said at the bottom of page 27 of 160 Oh St, at page 488 of 50 O O, at page 247 of 113 N. E. 2d “It has long been settled law that a trust may be engrafted upon a deed absolute but it is equally well settled that the evidence must be of a very persuasive character.”

The conclusion of the court is that the plaintiff has failed to establish by the required degree of proof that the properties in question were deeded to her in trust for the use and benefit of her mothr.

The plaintiff’s complaint will be dismissed and judgment awarded to the defendant.

The court considers that this opinion contains a sufficient findings of fact and conclusions of law to comply with Rule 52 of the Federal Rules of Civil Procedure, 28 Ü.S.C.A.

Counsel for defendant will prepare and submit a proper order of judgment:


author: By CASE, J. By CASE, J.

text:
    WEADE, Plaintiff, v. WASHINGTON (City), Defendant.
    Common Pleas Court, Fayette County.
    No. 21718.
    Decided July 15, 1955.

      Richard P. Rankin, Washington C. H., for plaintiff.
    William M. Junk, Washington C. H., for defendant.
   DECISION ON PLAINTIFF’S DEMURRER TO SECOND PARAGRAPH OF DEFENDANT’S SECOND AMENDED ANSWER.

OPINION

By CASE, J.

This cause comes before the court upon Plaintiff’s demurrer to the second paragraph of Defendant’s second amended answer.

Since it is a fundamental and established rule of law that such a demurrer searches the record (31 O. Jur., Pleading, Secs. 202 and 203, at pages 781 through 785), the court deems it suitable to quote from said pleadings as hereinafter set forth.

Plaintiff’s petition reads as follows:

“Plaintiff is an individual; defendant is a municipal corporation organized and existing under the laws of the State of Ohio.

“Plaintiff is now and has been for more than four years last past the owner in fee simple as tenant in common and has resided upon the following described real estate situated in the State of Ohio, County of Fayette and Townships of Union and Wayne, consisting of several tracts aggregating 229 acres of land, more or less. Said premises are located about six miles south of the City of Washington and include and abut upon the waters of Paint Creek, which is a natural water course flowing in a general northerly and southerly direction through Fayette County, Ohio.

“Defendant is now and for more than four years has been polluting said Paint Creek by causing raw or partially treated sewage, consisting of filth, excrement, waste, refuse and unwholesome matter to be emptied into said Creek at a point or points north of plaintiff’s property. By reason of the pollution of said creek by defendant, offensive smells, odors, stenches, poisonous and obnoxious gases and fumes have been and now are being emitted by said Paint Creek. Said fumes, gases, smells, stenches and odors permeate the atmosphere within a radius of more than one mile on occasion, and as a result thereof the atmosphere in, around and over plaintiff’s property is heavily charged and impregnated with said fumes, gas, smells, stenches and odors. Said fumes, gases, stenches and odors are obnoxious, poisonous and injurious to health and property and are unbearable to human beings.

“As a result of being subjected to said fumes, gases, stenches and vile and disagreeable odors, plaintiff and his family have been denied the comfort and enjoyment of their home; have suffered sore throats, headaches and colds; have been made sick and nauseated at meal times and their sleep and rest has been greatly disturbed thereby. The pollution in said creek has resulted in the breeding of untold numbers of mosquitos, flies and other insects, causing more pain, discomfort and annoyance to plaintiff and his family.

“Plaintiff says that by reason of said filth, excrement, waste, refuse and decayed matter, the water in said stream has been made poisonous and injurious to livestock consuming said water and plaintiff’s said farming operations have thereby been made less profitable than they would have been were it not for defendant’s wrongful acts.

“Plaintiff further says that in times of high water said filth, excrement, decayed matter, waste and refuse is carried onto his lands, thereby poisoning the same and killing and destroying the grass and other vegetation and forcing plaintiff to spend much time, money and effort in restoring the chemical balance of the soil and said vegetation. Plaintiff further says that, at various times, all marine life in said stream is killed by said pollution, and dead, decaying fish are deposited along the channel thereof and upon'plaintiff’s property, to his damage.

“Plaintiff says that by reason of said pollution and all the resultant conditions alleged herein, the market value of plaintiff’s land has been greatly reduced and depreciated.

“By reason of the foregoing, plaintiff has been damaged in the sum of Five Thousand Dollars ($5,000.00). '

“Wherefore, plaintiff asks judgment against said defendant for Five Thousand Dollars ($5,000.00), his costs herein expended, and for all other and further relief to which he is entitled.”

The Defendant’s Second Amended Answer to the foregoing petition reads as follows:

“Now comes the defendant, The City of Washington, and for its second amended answer to the petition of the plaintiff says:

“1. Defendant admits the allegations contained in the first paragraph thereof; further answering, defendant denies each and every allegation in the petition of the plaintiff not hereinbefore admitted to be true.

“2. Further answering, the defendant says that if the plaintiff has received any damage because of discharge of waste into said Paint Creek, which defendant denies, plaintiff is barred in bringing this action as defendant has a prescriptive right and estate in the use of Paint Creek since a system of sewers was established and constructed in said City of Washington, which said system has always emptied into the waters of Paint Creek, for a period of more than twenty-one years, next preceding the bringing of this action.

“3. Further answering, defendant says even if it does not have a prescriptive right to the use of the waters of Paint Creek, as set out above, which it contends it does have, that in such event this plaintiff could only recover for any possible damages resulting within the next four years preceding the bringing of this action, under authority of §2305.09 R. C.

“Wherefore, defendant prays that the petition of the plaintiff be dismissed and for its costs.”

It is noted that the foregoing petition and second amended answer were verified and sworn to positively.

On June 28, 1955, the following demurrer was filed on behalf of Plaintiff:

“Now comes the plaintiff and demurs to the Second paragraph of defendant’s Second Amended Answer for the reason that the same constitutes no defense to plaintiff’s petition.”

In searching the record, the court has examined Plaintiff’s petition to see and determine if it is sufficient and has not found therein any defect in point of substance. Upon due consideration of all the allegations contained therein, it appears that Plaintiff’s petition alleges all of the operative and ultimate facts essential to sufficiently state and constitute the formal grounds and issues of the actionable causes therein set forth. Therefore the court must conclude that said demurrer should not be sustained as to Plaintiff’s petition and must further proceed to examine Defendant’s answer to determine its sufficiency in law to constitute a defense to the causes of action set forth in the petition.

As admitted by the respective memoranda in support of and contra said demurrer, it is undisputed that Plaintiff’s demurrer is specially directed to the second paragraph of Defendant’s second amended answer, and that said demurrer directly attacks the defense therein set forth.

At this point, in its consideration of the issues of law raised by Plaintiff’s demurrer, the court should apply those rules of law cited and referred to in Ohio Jurisprudence as follows:

“In accord with the general principle, a demurrer to an answer admits, for the purposes of the demurrer, the truth of all the allegations contained therein that are well pleaded, and the court must assume the facts to be stated in the answer; and demurrer to the answer does not, however, admit the correctness of mere conclusions drawn from the facts.” (31 O. Jur., Pleading, §201, at p. 780.)

Defendant’s answer repeatedly and consistently denies that Defendant has been polluting Paint Creek as alleged and set forth in Plaintiff’s petition. The second numbered paragraph of Defendant’s answer does not admit that Defendant has been polluting Paint Creek for more than twenty-one years, nor does it admit that Defendant has been polluting Paint Creek for more than four years as alleged in Plaintiff’s petition. Said second numbered paragraph simply admits that “a system of sewers was established and constructed in said City of Washington, which said system has always emptied into the waters of Paint Creek, for a period of more than twenty-one years, next preceding the bringing of this action.”

The first sentence in the second literary paragraph of Defendant’s memorandum contra said demurrer reads as follows:

"The demurrer filed herein raises only one question; namely, does the second paragraph of defendant’s second amended answer constitute a defense to plaintiff’s petition?”

To this concise statement of the ultimate issue raised by demurrer the court must and does subscribe.

In the 3rd, 4th, 5th and 6th literary paragraphs of its memorandum, the Defendant argues and contends:

“Certainly the plaintiff has removed much of the burden of this memorandum in making certain admissions. On the second page of the memorandum plaintiff, in the third paragraph, states as follows: ‘Granting, as we must, then, that a prescriptive right of this nature can be obtained.’ Thus, the plaintiff admits that a prescriptive right may constitute a defense to plaintiff’s action herein. Thus we are limited to the narrow question as to whether or not defendant has in its answer properly pleaded prescriptive right through adverse possession. Plaintiff maintains in his memorandum that in order for defendant to properly plead prescriptive right through adverse possession it is necessary that defendant allege in his answer certain elements set forth by plaintiff as follows:

1. Adverse use (plaintiff admits this has taken place).

2. Knowledge, or acquiescence (plaintiff admits this element).

3. Extent.

4. Duration.

“The defendant contends that all of the elements above set forth are matters of proof to be submitted at the time of the hearing of the case and are not necessary elements to pleading.

“Let us consider certain of these elements which plaintiff alleges defendant must set out in its answer in order to have a good defense of prescriptive right by adverse use.- At the top of page three of plaintiff’s memorandum it is stated that defendant must allege some pollution to have adverse use. Defendant denies that plaintiff’s waters were polluted by it and plaintiff in order to sustain his case must prove pollution. Certainly the defendant will not allege that pollution existed nor is such an allegation necessary to its pleading. Defendant is merely saying that if plaintiff claims waste deposited in Paint Creek by the City’s sewage system constitutes pollution of plaintiff’s waters, then plaintiff can not be heard to complain because this waste has been continually deposited in said Creek by said City for a period of more than twenty-one years preceding the bringing of this action. In short the burden is on plaintiff to prove that this waste pollutes plaintiff’s waters at the place he alleges in his petition and the City is saying that it has a prescriptive right to deposit this waste because it has been doing so for more than twenty-one years.

“Plaintiff goes so far as to contend that defendant must in its answer allege adverse use has been constant throughout the twenty-one year period. Again the defendant contends that the question is not properly before the Court at this time. The elements of a prescriptive right through adverse use will certainly have to be determined by the Trial Court at some time during the course of the trial so that a proper charge may be made to the jury. But certainly that question would be pre-maturely considered at this time.”

These arguments and contentions of the Defendant do not appear to be consistent with or supported by the statutory and case law of Ohio; and this court can only subscribe to that portion thereof which contends that the within demurrer raises the question “as to whether or not defendant has in its answer properly pleaded prescriptive right through adverse possession” or adverse use.

In 1 O. Jur. 2d, Adverse Possession, Sec. 52, at p. 739, it is stated in part as follows:

“It is essential, to create a title by adverse possession, that the possession be uninterupted and continuous. If the continuity is broken, the time of the running of the statute must be computed from the last interruption.

“It is also essential to the acquisition of an easement by prescription that the adverse use be continuous without substantial interruption. * * *”

In 1 O. Jur. 2d, Adverse Possession, Sec. 13, at pages 698, 700, it is stated in part as follows:

“While the statutes of Ohio do not define ‘adverse possession’ certain special statutes do provide for the barring of claims as to particular types of property under specifically stated conditions. * * *

“It is left to the courts to determine the elements necessary to establish the adverse possession which will give rise to a new title. Actually, there are only three elements necessary. These are (1) possession by the claimant which is (2) adverse to the record owner and (3) continued for the statutory period. In other words, it is only necessary that there arise a cause of action for the recovery of real property and that this cause of action exist for such a period of time as to be barred by the statute of limitations. * * *

“It is common for a court to state that, certain specified elements having been established, a case of adverse possession has been made out. It is not so common for a court to specifically state the elements necessary to establish adverse possession; and where the courts have done this the designated elements, at least in terms, have not always been the same although there is basic agreement in all such formulae. Thus, it is variously said that, in order to acquire title by adverse possession for twenty-one years or over, there must be possession which is open, notorious, adverse, continuous, and hostile; possession which is actual, continuous, open, notorious, and hostile; possession which is actual, open, exclusive, continuous, and adverse; possession which is actual, open and notorious, hostile and under claim of right, continuous and exclusive; and, finally, that in the absence of color of title, a person claiming title by adverse possession must show open, notorious, exclusive, continuous, and adverse possession.

“The acquisition of title by adverse possession is dependent upon a hostile claim of exclusive ownership and not upon the absence of protest to such a claim.”

And, in Sec. 14 thereof, at pages 700-702, it is stated in part as follows:

“As in the case of adverse possession, the courts often may state that a given aggregation of elements establish a right by prescription, but less often state in combination the elements essential to establish such a right, and when they do the formula is not always the same.

“Other statements made by the courts are that, in order to establish an easement by prescription, it is necessary that there exist for the period established by the statute, or twenty-one years, open, notorious, continuous, and adverse use; use uninterrupted, adverse, and under a claim of right; use uninterrupted, adverse, and with knowledge and acquiescence of the owner of the land; and, finally, use which is adverse, under a claim of right, exclusive, continuous, and uninterrupted, besides being within the knowledge and with the acquiescence of the owner of the estate over which the easement is claimed.

“The elements of a prescriptive right do not clearly differ from the elements of title by adverse possession. Adverse possession has been held to differ from prescription in that in order to acquire rights by adverse possession such possession must be exclusive while this is not an element of prescription. * * *

“However, there are other areas of suggested differences between adverse possession and prescription; at least there are areas in which there is a difference in emphasis. These are the necessity for a claim of right on the part of the adverse user, knowledge and acquiescence on the part of the owner of the land, change in the mode of user, and the matter of what constitutes continuous use and an interruption of use. While adverse possession need not be specially pleaded, it appears that the contrary is true as to prescription.” (Emphasis added by the Court.)

In Sec. 52 thereof, at p. 739, it is stated in part as follows:

“It is essential, to create a title by adverse possession, that the possession be uninterrupted and continuous. If the continuity is broken, the time of the running of the statute must be computed from the last interruption.

“It is also essential to the acquisition of an easement by prescription that the adverse use be continuous without substantial interruption. * * *”

And, in Sec. 53 thereof, at p. 740, it is further stated as follows:

“It is essential to acquisition of an easement by prescription that the use to which the servient estate is put be substantially the same for the prescriptive period. A substantial change in the manner of use of a stream by a city for disposal of sewage during the prescriptive period will prevent the acquisition of a prescriptive right. If pollution of a stream has gradually increased and is worse at the end of the period than when it commences, then no prescriptive right is established.”

In the light of the foregoing authorities cited and referred to, and in its further consideration of whether the second numbered pargraph of Defendant’s amended answer is deficient in point of substance, this court is persuaded by and subscribes to the reasoning of the Court of Appeals for Gallia County in the case of Shelton v. Mosier 19 Oh Ap 89, at pages 91, 92 and 93 thereof, wherein it is stated in part as follows:

“There have been two views expressed as to the nature and extent of the right to dam a stream, acquired by prescription. These divergent views are set forth in the note to Whitehair v. Brown, 18 Ann. Cas. 217. The one view is that the right of the dam owner is fixed by the height of the dam and the way it is used by him. The other, and the better, view is that his rights are measured by the effect of the dam and its operation on the .rights of others. That is to say, a man requires no. prescription to secure his right to build a dam or other structure on his own land; what he requires is the right to overflow another’s land Accordingly, the maintenance and operation of a dam on one’s land is not strengthened by the fact that it has been so used and maintained for twenty-one years. If, however, the dam has been for that period causing a neighbor’s land to overflow he has by that prescription obtained another right, that is, the right to overflow that neighbor’s land. The plaintiffs were accordingly right in asserting that the second defense was insufficient, in that to establish the prescriptive right defendants ought not only to have pleaded that the dam had been maintained and operated for twenty-one years substantially as it was operated in 1923, but that for all that period the effects of its maintenance and the operation on the lands of the plaintiffs had been the same.

“While the instructions to the jury were correct, the answer was clearly insufficient, for it did not allege that plaintiff’s property had been overflowed for the prescribed period to substantially the same degree. The plaintiffs did not demur to the amended answer, but saved their rights by objecting to the reception of any evidence thereunder. This method of raising the question of the sufficiency of a pleading does not commend itself to us, but that it is, nevertheless, an effective method is well established. Some grounds of demurrer are waived by a failure to demur, but where the jurisdiction of the court or. the legal sufficiency' of a pleading is in doubt the question may be raised on the admission of testimony.

“Judge Phillips, in his Code Pleading, Section 304, puts it thus:

“ ‘If a pleading does not state a cause of action or a defense, there is no right or defense to be maintained by the proof; and proof without allegation does not avail. It follows, therefore, that where a pleading is insufficient in substance the opposing party may, without demurring, generally avail himself of such insufficiency. He may do this in various ways, such as by objecting to the introduction of evidence at the trial, by motion in arrest of judgment, by motion for judgment non obstante veredicto or by writ of error.’

“We accordingly arrive at the conclusion that the court erred in admitting testimony in support of the answer quoted.”

Those allegations which appear to be well pleaded and set forth in said second numbered paragraph of Defendant’s second amended answer merely allege that “a system of sewers was established and constructed in said City of Washington, which said system has always emptied into the waters of Paint Creek, for a period of more than twenty-one years, next preceding the bringing of this action.”

Plaintiff’s demurrer admits those allegations, but, in admitting such construction and emptying of said system of sewers, the Plaintiff’s demurrer does not admit the correctness of mere conclusions of prescriptive rights drawn by Defendant from the assertions that said system of sewers had been constructed and emptying into Paint Creek for more than twenty-one years next preceding the bringing of this action (31 O. Jur., Pleading, Sec. 201, at page 780).

And it is clear that said allegations with respect to the construction and emptying of said sewers for a period of twenty-one years do not allege that Defendant’s operation of said sewers has had substantially the same effect upon Plaintiff’s land for a period of more than twenty-one years next preceding the bringing of this action (1 O. Jur. 2d, Adverse Possession, Sec. 53, at p. 740).

In substance and effect, Plaintiff’s demurrer contends that, in order to sufficiently plead the prescriptive rights alleged in the conclusions drawn and set forth in said second paragraph of Defendant’s answer, the Defendant ought not only to have pleaded that its system of sewers had been constucted and emptying into Paint Creek for more than twenty-one years substantially as it was operated at the time this suit was commenced, but that for all that period the effects of its maintenance and operation thereof on the lands of the Plaintiff had been the same (Shelton v. Mosier, 19 Oh Ap 89, at p. 91).

In the light of all the authorities hereinabove cited and discussed, it appears that the allegations contained in said second paragraph of Defendant’s second amended answer are insufficient to properly plead the defense of prescriptive right through adverse use; and therefore the court must conclude that Plaintiff’s demurrer thereto is. well made and should be sustained.

Upon further consideration of Plaintiff’s demurrer to Defendant’s attempted defense of prescriptive right through adverse use, the court has considered the reasoning and judgment of the Court of Appeals for Lorain County in the case of Vian v. Sheffield Bldg. & Dev. Co., 85 Oh Ap 191, 40 OO 144, decided June 14, 1948. The headnotes thereof read as follows:

“1. One may not obtain by prescription, or otherwise than by purchase, a right to cast sewage upon the lands of another without his consent.

“2. The discharge of effluent, from a disposal system, into a public watercourse, from which, through natural and artificial means, it finds its way onto the lands of another, and the permitting of overflow from a sewage wet well to drain onto the lands of another, may be enjoined.”

Beginning at page' 198, that court stated in part as follows:

“The law of Ohio, however, seems to be clear to the effect that one may not obtain by prescription, or otherwise than by purchase, a right to cast sewage upon the lands of another without his consent. City of Bucyrus v. State Department of Health, 120 Oh St 426, 166 N. E., 370; State, ex Neal, Dir., v. Williams, Mayor, 120 Oh St 432, 166 N. E., 377; Kasch v. City of Akron, 100 Oh St 229, 126 N. E., 61; City of Mansfield v. Balliett, 65 Oh St 451, 63 N. E., 86, 58 L. R. A., 628.

“And this would be true even though it were attempted to be done by the village under appropriate legislation.”

Upon applying those principles of law pronounced and set forth in Vian v. Sheffield Bldg. & Dev. Co., supra, to the allegations contained in said second paragraph of Defendant’s second amended answer, it appears that Defendant is seeking to interpose the defense of prescriptive right through adverse use; and that Defendant’s allegations therein set forth not only are insufficient to properly plead the defense of prescriptive right through adverse use but, even though the same were sufflcient in such respect, that said Defendant can not under the law of Ohio obtain such a prescriptive right by adverse use. In other words, the court finds that the defense of prescriptive right by adverse use is not available to the City of Washington under the facts alleged in Plaintiff's petition and the statutory and case law of Ohio applicable thereto; and that Plaintiff's demurrer to said second paragraph of Defendant’s second amended answer is well made and should be sustained.

Decided September 27, 1955.

Therefore, for all of the reasons hereinabove set forth and discussed, the court finds:

1. That Plaintiff’s petition alleges all of the operative and ultimate facts essential to sufficiently state and constitute the formal grounds and issues of the actionable causes therein set forth;

2. That the allegations contained in the second paragraph of Defendant’s second amended answer are insufficient to properly plead the defense of prescriptive right through adverse use;

3. That, under the statutory and case law of Ohio, the defense of prescriptive right by adverse use is not available to the City of Washington as a defense to the actionable causes alleged and set forth in Plaintiff’s petition; and

4. That Plaintiff’s demurrer to said second paragraph of Defendant’s second amended answer is well made and should be sustained.

Counsel for Plaintiff may prepare an entry accordingly which will include therein appropriate exceptions on behalf of Defendant to the aforesaid findings, decision and entry, and thereupon submit the same to Counsel for Defendant and to this court for approval within five (5) days from the date of this decision.

No. 21718.

Richard P. Rankin, Washington C. H., for plaintiff.

William M. Junk, and W. S. Paxson, Washington C. H., for defendant.

DECISION ON DEMURRER TO THIRD AMENDED ANSWER.

OPINION

By CASE, J.

On July 15, 1955, this court rendered its decision sustaining Plaintiff’s demurrer to the second paragraph of Defendant’s second amended answer, and subsequent thereto an appropriate entry in conformity therewith was made and entered in this cause.

On August 20, 1955, Defendant filed its third amended answer herein which was identical in every respect except those allegations contained and set forth in the second paragraph thereof which read as follows:

“2. Further answering, defendant says that Paint Creek is and has been for over 100 years a natural water course flowing through Fayette County and the City of Washington, in its present course; that the City of Washington and abutting property owners openly, continuously and adversely under claim of right and with the acquiescence of the plaintiff and his predecessors in title have used said creek for disposal of water from rain fall and sewage since about 1890 until 1934 when the defendant constructed a sewage disposal plant and thereby decreased the amount of untreated sewage discharged into said creek by the defendant; that in 1949 the defendant constructed a secondary treatment plant and thereby further decreased the amount of untreated sewage discharged into said creek by the defendant; that the defendant has used said creek openly continuously and adversely under claim of right and with the acquiescence of the plaintiff and his predecessors in title for disposal of its surface waters and its sewage as aforesaid for more than 21 years before the filing of plaintiff’s petition herein and has thereby acquired a prescriptive right to use said creek for such purpose.”

In defendant’s memorandum contra plaintiff’s demurrer to said second paragraph of defendant’s third amended petition, defendant sets forth the following argument and contentions:

“The only authority relied upon by counsel for plaintiff in support of the demurrer to the second defense in defendant’s third amended answer is this Court’s former decision in this case.

“Frankly, counsel for defendant feel that the Court was correct in his conclusion on the allegations in the second defense then before the Court. In drafting the second defense now to be considered we endeavored to plead in proper form the defense of prescriptive right. The authorities hereinafter cited show that a prescriptive right such as is claimed here is recognized by the Ohio courts. The allegations now. made meet the requirements made by such decisions.

“We contend that the statements made by this Court at page 10 and in conclusion 3 at page 11, which were based on Vian v. Sheffield Building and Development Company, 85 Oh Ap 191, 40 O. O. 144. are erroneous and not the law of Ohio:

“First, the question of prescriptive right was not involved in the" Vian v. Sheffield case. Therefore, the Court’s comments on that subject were entirely obiter dicta and fiot necessary to the decision of the case.

“Second, the authorities cite by the Court for the proposition that ‘one may not obtain by prescription, or otherwise than by purchase, a right to cast sewage upon the lands of another without his consent’ do not sustain such a principle. The question of prescriptive right was not involved in a single one of those decisions.

“Third, the defendant does not claim a right to ‘cast sewage upon the lands of another.' It claims the right to use Paint Creek as it has been used for more than twenty-one years, by virtue of the prescriptive right established by long use. This right is recognized and established by the Courts of Ohio.

“The plaintiff in effect by his demurrer is saying that under the laws of Ohio, and under the facts as set forth in the second paragraph of defendant’s third amended answer, the City, of Washington cannot acquire a prescriptive right in Paint Creek by adverse usage as set out in said second paragraph. The defendant says that plaintiff is mistaken in the contention that the law of Ohio does not recognize that a prescriptive right may exist by said adverse usage. Several cases in Ohio have recognized that a prescriptive right may so attach. In 1900 in the case of City of Mansfield v. William T. Hunt Vol. 19, Ohio Circuit Court Reports page 488, the Court says at page 494 of that opinion; ‘But the wrong complained of is a continuing nuisance or trespass, until such continued nuisance or trespass by adverse use ripens into a presumptive right and estate in the wrong-doer, the injured party may bring his action.’ Thus the Court is recognizing that a prescriptive right could have been obtained if there had been a continuing nuisance or trespass for a period of 21 years or longer.

“The Court recognized that prescriptive right could attach by adverse use for more than 21 years in the case of the City of Cleveland v. The Standard Bag and Paper Company, 72 Oh St 324.

“In 1908 in the case of City of Norwalk v. Francis Blatz, 9 Ohio Circuit Reports New Series, page 417 it was stated in the second paragraph of the syllabus as follows: ‘Recovery from a city cannot be had by a land owner for damages caused by the flooding of his land by sewers constructed by the City, when such right has been enjoyed by the City for the prescriptive period, and the damages are the natural consequences of the exercise of such rights by the city.’

“As late as 1937 the Court of Appeals of this district certainly tacitly recognized that a city could acquire a prescriptive right to empty sewage into a stream by holding that the charge of the trial court in the case of Estey v. Greenville, 25 Abs 645 was a correct charge. The charge of the lower court had been as follows: ‘The burden was upon the defendant to prove that the city had used the creek for disposition of its sewage for more than 21 years and that if so proven the plaintiff would not be entitled to recover * * *’

“Counsel for the defendant contend that the above cases are still the law of Ohio and that a City may acquire a prescriptive right to empty sewage into a stream. Leading legal editors recognize this doctrine of law. (1 O. Jur. 2d, 740 par. 53) Shepard’s Ohio Citations list the above cited cases as never having been modified or reversed.

“For the above reasons counsel for the defendant contend that plaintiff’s demurrer should be overruled.”

Therefore, it appears that defendant’s memorandum contra said demurrer tacitly concedes that the demurrer searches the record, that said demurrer should not be sustained as to plaintiff’s petition, and that said demurrer is specially directed to defendant’s second defense in its third amended answer and directly attacks the sufficiency of said second defense as alleged therein.

While it is true that defendant’s memorandum contends that in “drafting the second defense now to be considered we endeavored to plead in proper form the defense of prescriptive right”; it appears to be equally true that the allegations set forth in said second defense now before this court are no more detailed with respect to the effects of defendant’s maintenance and operation of its sewers and sewage disposal plants on plaintiff’s lands than were the allegations contained in the aforesaid second defense set forth in its second amended petition.

Whereas in the first instance defendant then alleged that “a system of sewers was established and constructed in said City of Washington, which said system has always emptied into the waters of Paint Creek, for a period of more than twenty-one years, next preceding the bringing of this action”; said defendant now alleges “that the City of Washington * * * openly, continuously and adversely under claim of right and with the acquiescence of the plaintiff and his predecessors in title * * * used said creek for disposal of water from rain fall and sewage since about 1890 until 1934, when the defendant constructed a sewage disposal plant and thereby decreased the amount of untreated sewage discharged into said creek by defendant; that in 1949 the defendant constructed a secondary treatment plant and thereby further decreased the amount of untreated sewage discharged into said creek by defendant; that the defendant has used said creek openly, continuously and adversely under claim of right and with the acquiescence of the plaintiff and his predecessors in title for disposal of its surface waters and its sewage as aforesaid for more than 21 years before the filing of plaintiff’s petition •herein and has thereby acquired a prescriptive right to use said creek for such purpose.”

It is clearly apparent that the detailed distinctions and differences, between the respective allegations set forth in said second defense as of then and now, should be classified as distinctions without differences. For in each instance said demurrer must and does admit that the City of Washington has been discharging water from rain fall and untreated sewage into Paint Creek for a period in excess of 21 years. But said second defense did not then nor does it now allege that said City of Washington had been polluting said Paint Creek, in the manner and extent complained of by plaintiff’s petition, “openly, continuously and adversely under claim of right and with the acquiescence of the plaintiff and his predecessors in title * * * for more than 21 years before the filing of plaintiff’s petition herein and has thereby acquired a prescriptive right to use said creek for such purpose.”

Obviously, defendant’s discharge of water from rain-fall and untreated sewage into Paint Creek, for 21 years before the filing of plaintiff’s petition herein on December 5, 1953, might well have been accomplished and carried out without the polluting. effect alleged to have existed for a period of 4 years immediately prior to the commencement of this action and as complained of in plaintiff’s petition.

Defendant must concede that, if the evidence to be adduced by plaintiff at the trial of this case fails to show the pollution complained of, then there can be no liability on the part of the City of Washington. In other words, if there has been no pollution as claimed by plaintiff then there can be no recovery or relief as sought by plaintiff’s petition.

On the other hand, if the City of Washington desires to interpose the defense of prescriptive right to so pollute Paint Creek, as complained of in plaintiff’s petition, then the defendant must clearly allege that such pollution has been substantially the same over a period of 21 years immediately before this action was commenced by the plaintiff. For it is a well established rule of law that it is essential to the acquisition of an easement by prescription that the use to which the servient estate is put be substantially the same for the prescriptive period. And it must therefore follow that a defense, a prescriptive right to pollute a stream, must allege and set forth that such pollution was substantially the same throughout the 21 year period immediately prior to the commencement of the action in which such defense is interposed.

Since defendant’s second defense does not allege that it has polluted Paint Creek in the manner and extent complained of in plaintiff’s petition, then it is indisputably clear that defendant’s second defense completely fails to state a proper and sufficient defense of prescriptive right to those acts of pollution complained of in plaintiff’s petition.

Therefore, it is clear that the City of Washington has failed to allege those facts which are necessary and required to state and set forth the defense of prescriptive right to do the specific acts complained of in plaintiff’s petition; and that such allegations of prescriptive right as now appear in defendant’s second defense are mere conclusions which are not supported by proper and adequate allegations of pollution over the statutory period as required by law.

It is a well established rule of law that plaintiff’s demurrer herein does not admit such mere conclusions so drawn by the defendant in its second defense. (31 O. Jur., Pleading, Sec. 201, at page 780.)

For all of the reasons hereinabove set forth and discussed, the Court is compelled to conclude that the allegations contained in said second paragraph of defendant’s third amended answer are insufficient to properly plead the defense of prescriptive right through adverse use, and that plaintiff’s demurrer thereto is well made and should be sustained.

Upon further consideration of plaintiff’s demurrer to defendant’s attempted defense of prescriptive right through adverse use, the Court has again considered the reasoning and judgment of the Court of Appeals for Lorain County in the case of Vian v. Sheffield Bldg. & Dev. Co,, 85 Oh Ap 191, 40 O O 144, decided June 14, 1948, wherein the headnotes thereto read as follows:

“1. One may not obtain by prescription, or otherwise than by purchase, a right to cast sewage upon the lands of another without his consent.

“2. The discharge of effluent, from a disposal system, into a public watercourse, from which, through natural and artificial means, it finds its way onto the lands of another, may be enjoined.”

And, beginning at page 198, that court stated in part as follows:

“The law of Ohio, however, seems to be clear to the effect that one may not obtain by prescription, or otherwise than by purchase, a right to cast sewage upon the lands of another without his consent. City of Bucyrus v. State Department of Health, 120 Oh St 426, 166 N. E., 370; State, ex rel. Neal, Dir., v. Williams, Mayor, 120 Oh St 432, 166 N. E., 377; Kasch v. City of Akron, 100 Oh St 229, 126 N. E., 61; City of Mansfield v. Balliett, 65 Oh St 451, 63 N. E., 86, 58 L. R. A., 628.

“And this would be true even though it were attempted to be done by the village under appropriate legislation.”

Upon applying those principles of law pronounced and set forth in Vian v. Sheffield Bldg. & Dev. Co., supra, to the allegations contained in said second paragraph of defendant’s third amended answer, it appears that defendant is seeking to interpose the defense of prescriptive right through adverse use; and that defendant’s allegations therein set forth not only are insufficient to properly plead the defense of prescriptive right through adverse use but, even though the same were sufficient in such respect, that said defendant can not under the law of Ohio obtain such a prescriptive right by adverse use. Therefore, the Court again finds that the defense of prescriptive right by adverse use is not available to the City of Washington under the facts alleged in plaintiff’s petition and the statutory and case law of Ohio applicable thereto; and that plaintiff’s demurrer to said second paragraph of defendant’s third amended answer is well made and should be sustained.

For all of the reasons hereinabove set forth and discussed, the Court finds:

1. That plaintiff’s petition alleges all of the operative and ultimate facts essential to sufficiently state and constitute the formal grounds and issues of the actionable causes therein set forth.

2. That the allegations contained in the second paragraph of defendant’s third amended answer are insufficient to properly plead the defense of prescriptive right through adverse use;

3. That, under the statutory and case law of Ohio, the defense of prescriptive right by adverse use is not available to the City of Washington as a defense to the actionable causes alleged and set forth in plaintiff’s petition; and

4. That plaintiff’s demurrer to said second paragraph of defendant’s third amended answer is well made and should be sustained.

Counsel for plaintiff may prepare an entry accordingly which will include therein appropriate exceptions on behalf of defendant to the aforesaid findings, decision and entry, and thereupon submit same to counsel for defendant and to this Court for approval within five (5) days from the date of this decision.