author: Johnson, Chief Judge.

text:
    Campbell v. Park.
    1. The finding by trustees of special road districts, under section 46 of the statute relating to towns and cities (2 S. & 0. 1509), that two-thirds of the resident owners of lots of land through which a proposed improvement is to be made, have petitioned therefor, is not conclusive of the fact.
    2. Such fact may be inquired into by the court in an action to collect an assessment made to pay for the improvement, as well to support an order to make the same, as to impeach it.
    3. It is not essential-that the necessary two-thirds shall sign one petition. If more than one petition is actually pending when the order is made, and they together contain the requisite number of petitioners, the power to make the order can not be impeached on the ground that the trustees acted on one of them only, which was not signed by two-thirds of the resident owners.
    4. On the 19th of August, 1868, a petition was presented for the improvement, which was examined by the trustees, but they rejected it, by reason of a supposed defect of one of the signatures, but did not pass upon the merits of the application. The petition was not withdrawn, nor did any of the signors withdraw their names, but it remained on file with the trustees until the 23d of September, 1868, when, the project for the improvement being still pending, a second petition for the same improvement was presented, and the order made thereon; the proper ordinance was passed and published; the work was let and completed after due publication, without objection by the signers of the first petition whose names are not on the second. Held, That iñ the absence of proof to the contrary, the presumption is, that those signing the first petition, continued to be petitioners at the time the order was made on the second, and may be counted to ascertain if the necessary two-thirds desired the improvement.
    5. Under the statutes relating to taxation, the guardian of minors is charged with the duty of representing the real estate of their wards in listing it for taxation and payment of taxes, as well as in the general management of such estate, and as such guardian he may represent his wards’ estate under the statute above cited, either to ask for or oppose such improvement.
    6. Where minor children, who are tenants in common of the lot of land, reside on the same, they are resident owners; but whether each is to be counted, or all counted as one, Quere.

    7. If the names of such minors and of the guardian individually, are signed to a petition by direction of the guardian and in his presence, it is equivalent to his signing as guardian.
    Error. Reserved in the District .Court of Hamilton county.
    The action was originally brought by the plaintiff, to en- . force an assessment against property owned by sundry persons, situated on Jefferson street in the special road district of "Walnut Hills, Mt. Auburn, and Clintonville, now a part of Cincinnati, and known as Corryville.
    Judgment was rendered against the several pieces of property, among which was that of defendant Park, who appealed to the district court, where a special finding of facts was made, and; on his motion, the case was reserved for decision in this court.
    The following is a copy of the special findings, and of the order of reservation:
    This cause came on this day to be heard, upon the separate appeal of' John M. Parks from the judgment and orders of the court of common pleas, rendered against him and others, and was heard upon the petition of plaintiff, the answer of the defendant, Parks, the plaintiff’s reply, the testimony and proofs upon submission to the court, and after hearing the arguments of counsel, the court, being advised in the premises, find the facts to be:

      First. That upon the 23d day of September, 1868, a petition, printed, and in writing, addressed to the trustees of the "Walnut Hills, Mount Auburn and Clintonville Special Road District, Hamilton county, Ohio, and purporting to be from several lot owners in the said special road district, resident upon Jefferson street, between Calhoun' and St. Clair streets, in the subdivision of Corryville, was presented, together with a plat of said street, showing the lots abutting thereon, to said trustees, at a regular meeting of their board, praying that the grade of said street be established; that it be graded full width, gutters paved, curbs set, sidewalks flagged, roadway macadamized, and that such bridges, culverts, and well-holes maybe built as should be found to be necessary; all to be done in a good substantial manner.

      Second. That the plat presented with said petition showed the frontage of the several lots abutting on the street, and upon one of these lots resided Mrs. Margaret Shay, a widow? and her children — P. S. Shay, aged ten years, and Margaret Shay, aged nine years — the property being in the children by descent from their father, and the mother being guardian of their persons and estates, duly appointed by the probate court, and entitled to dowrer, which had not been assigned. That upon another of these abutting lots there resided Kunegunda Dusold, a widow, with two of her children — Catherine and Margaret, aged fourteen and seventeen respectively — the other child of Mrs. Dusold not residing with her, the property being in the children by descent from their father, and the mother being guardian of their persons and estates, duly appointed by the probate court, and entitled to dower, which had not been assigned; and that upon the said street, within the limits of said improvements, were other lots, upon each of which -resided its owner, to the number of seven, making the number of resident owners of lots upon said street, excluding the lots of the said Mrs. Shay and her children, and Mrs. Dusold and her children, seven and no more.

      Third. That of these seven resident owners of lots, three .did not' sign the petition aforesaid to the trustees, the other four did sign the petition. That, by the authority of Mrs. Shay, and in her presence, her name, and that of each of her children, were subscribed by Stokes, one of the trustees, she affixing her mark, being unable to write. That Mrs. Dusold signed her name to the petition, in presence of her children, and, at the same time, the daughter, Catherine, subscribed her name and her sister’s (Margaret) to the petition, in Margaret’s presence, and with her consent, and there were no other signatures to the petition.

      Fourth. That prior to the presentation of said petition, the project of improving Jefferson street, as prayed for, had been under consideration in said board, upon alike petition, presented August 19, 1868, but rejected for a supposed defect in one of the signatures, which petition was signed by two of the three resident lot-owners who did not sign said petition of the 23d of September, 1868, and, although rejected by the trustees, remained on file iu the office of the said trustees, and the said trustees had examined carefully at that time, as to the number of resident owners upon said street, and when said petition of September 23, 1868, was presented, said trustees were honestly of opinion that the names of the required number, two-thirds of the resident owners, were signed to said petition of September 23,1868, and so accepted said petition ; and by ordinance passed in due form at an adjourned meeting, September 25, 1868, reciting that two-thirds of the resident owners of lots of ■land abutting on said street had petitioned therefor, the said trustees, by ordinance, declared the improvement necessary, and ordered that said street, from Calhoun to St. Clair streets, should be graded to full width, gutters payed, curbs set, sidewalks flagged, and road macademized, with such culverts and well-holes as might be found necessary; the costs and expenses thereof to be ascertained and assessed on the front foot, according to the acts of the legislature, and the ordinances of the special road village upon the subject of special taxes, and that the clerk should give notice of such determination to improve, according to law.

      Fifth. That thereupon notice of the ordinance aforesaid was given by public advertisement thereof for four weeks in the Gazette and Yolksblatt newspapers, printed and of general circulation in Hamilton county, said advertisement being made by the clerk of the board of trustees, setting forth a copy of said ordinance.

      Sixth. .That at the regular meeting of said board of trustees, October 14, 1868, the grade of Jefferson street, from Calhoun to St. Clair streets, was established at the same grade as had been on 22d of July, 1868, established by an Ordinance at the time passed by said board, and afterward, :for ten consecutive days, from October 28,1868, to November 4, 1868, an advertisement was made by public notiee printed in the Cincinnati Gazette, a newspaper printed and in general circulation in said Hamilton county, that sealed proposals would he received at the office of said trustees until November 4, 1868, for grading, setting curbs, paving the gutters, macadamizing the roadway, flagging the. sidewalks, building well-holes, and culverts of Jefferson street, from Calhoun to St. Clair streets, the specifications to be obtained from J. Earnshaw, engineer, northwest corner of Fourth and Race streets, Cincinnati, Ohio.

      Seventh. That the sealed proposal of Hugh Campbell (who was not a resident of said district, and who had no ■knowledge of the names or number of resident owners upon said Jefferson street) was made for said work, and wras presented by him to the said trustees, November 4, 1868, at two o’clock p. m., about an hour before the regular meeting of said board of trustees on that day, at the regular place of meeting, and at the sitting of said board, at about three o’clock p. m., was laid before the board. That there were no other bids offered, nor other bidders present, nor objections by any one, except D. Shauley, a bystander, who urged that there were four other bids, which had not been put in. That thereupon, before opening said proposal of the said Campbell, the trustees waited until near the hour of adjournment, when they inquired again for other bids, and, no other being offered, they opened the said sealed proposal of Campbell, considered the same, accepted his bid, and accorded him the work, and there was no other bid offered.

      Eighth. That on November 5, 1868, the next day after the award of work, Campbell began the work, putting on a working force of sixty (60) laborers, together with horses and carts, and the work was in progress.

      Einth. That no written stipulation other than the proposal of said Campbell, accepted as aforesaid, was made at the time of the proposal and acceptance, but afterward, on the — day of November, 1868, a contract was written out, providing that said Hugh Campbell should furnish all materials and labor, and complete the work aforesaid to the satisfaction of said trustees and their engineer, in one year from January 1,1869, the sidewalks to be flagged four feet wide, the curbs to be four inches thick and eighteen inches deep, and an average length óf two feet; gutter paving to be six feet wide, resting on a course of good, screened gravel, six inches thick, the stones forming the center course to be not less than three inches thick, eighteen inches long, and twelve inches deep, those in the remaining courses to be not less than two inches wide and nine inches deep, the road covering to consist of broken stones one and one-half inches in diameter, to be nine inches in depth at the gutter paving on each side, and twelve inches deep in the center, and to be spread on the street when the roadway should have become dry, smooth, and well settled, and the flagging of the sikewalk to be of good, large limestone, three inches thick, resting upon a layer of good, screened gravel, four inches in depth.

      Tenth. That the prices stipulated in said contract were those at which the work was awarded to said Campbell, and the same as contained in his sealed proposal, accepted by said trustees ; and the contract further provided, on the acceptance of the work, said trustees should cause to be levied an assessment upon the front foot of the lots abutting said improvement, for the cost and expense of the work at said prices, and that the same should be received by the said Campbell in full payment, he assuming the collection of said assessment without cost or charge to said village, and agreeing that neither said village nor said trustees should be liable for any expense or cost of said improvement.

      Eleventh. That to said contract was appended, upon the same sheet, an undertaking in the names, as set forth in the body thereof, of Edward Martin and Patrick Fox, stipulating as sureties for the performance of said contract by said Campbell, and at the bottom of said undertaking on the — day of November, 1868, the day the contract was written, were affixed the signatures and seals of said Campbell and two of the said trustees, together with a thirty cent revenue stamp of the United States, and there were no other signatures.

      Twelfth. That under the direction of the engineer of said board of trustees, and controlled by him, the work of grading and filling Jefferson street, from Calhoun street to St. Clair street, as required by said contract, was carried on by the said Hugh Campbell with diligence, from the time the work was. commenced, November 5,1868, until the 20th of February, 1869, when he united with him in the work John Gaynor.

      Thirteenth. That in consideration of John Gaynor undertaking, by advance of capital and labor, one-half of the expense of said work, it was agreed between Gaynor and Campbell that Gaynor should be entitled to one-half the assessment for the work.

      Fourteenth. That thereupon said Campbell and Gaynor caused to be prepared a written copy of the contract aforesaid, except in the addition of Gaynor’s name to Campbell’s, and except further that the clause requiring a layer of good, screened gravel, four inches in depth, beneath the flagging, was omitted; and so much of the clause concerning the center courses of the gutter paving as required the stones to be not less than eighteen inches long and one foot deep, was omitted; and so much of the clause concerning metal in the roadway, as required the depth to be twelve inches in the center, was omitted; and so much of the clause concerning gravel under the gutter paving as required it to be screened, was omitted; and the specification as to the depth of curbs was sixteen inches ; and the specification as to the diameter of the broken stone of the roadway was not exceeding two and one-half inches; and to the clause concerning the agreement to receive for the work an assessment to be levied by the trustees of the special road district, was added this paragraph: “ On condition that said special road village, by the trustees thereof, shall have performed all their duties herein, in accordance with law and this agreementand the clause which was as follows in the contract with Campbell, aforesaid : “ And in no event will the special road village, or the trustees, be held liable for any of the said expense of said improvement,” was omitted.

      Fifteenth. That said written paper was, upon the 20th day of February, 1869, signed and sealed by said Campbell and Gaynor, and by two of said trustees, in the absence of the third one, without his knowledge or consent, and not at any regular or called meeting of the board of trustees of said incorporated village, and was never approved at any meeting of the board, and appended thereto was a written undertaking, stipulating for the performance by said Campbell and Gaynor of the work therein referred to, signed by Edward Martin and Patrick Eox, as sureties. Whereupon Campbell and G-aynor together continued the work.

      Sixteenth. That the work of grading Jefferson street, from Calhoun street to St. Clair street, macadamizing the roadway, paving gutters, setting curbs, flagging sidewalks, and building necessary culverts and well-holes, was finished by the first of November, 1869, in all particulars as required by the contract of November, 1868, except that the broken stone on the roadway was broken two and one-half inches in diameter, and the flagging of the sidewalk was put down without any gravel beneath it. That the cost and value of the stone of the roadway, as broken, was equal to what would have been the cost and value if broken one and one-half inches in diameter, but the cost and value of the flagging without gravel beneath it was less by eight hundred dollars ($800) than its cost and value if resting on four inches of gravel.

      Seventeenth. That upon the 4th of November, 1869, notice was given, by posting written notices in the neighborhood, that the trustees and the engineer would meet November 10, 1869, upon said Jefferson street, from Calhoun to St. Clair streets, and determine the question of accepting the same. And upon the said 10th day of November, 1869, the said trustees with their engineer, pursuant to said notice, did go upon said street and inspect said work, and the work was to their satisfaction, and was by them accepted.

      Eighteenth. That after the inspection and acceptance of said work, the said trustees directed their engineer to make an estimate of the said work, according to the price at which it was awarded, and said estimate was made and the rate of assessment therefor upon the front foot of the lots abutting said improvement was fixed by the certificate of said engineer, duly filed in the office of said trustees, together with the plat of said street and lots, November 12, 1869.

      Nineteenth. That the rate, as fixed by said estimate and certificate, was $11,025 upon each front foot of the several lots of land abutting upon said improvement of said street, between Calhoun and St. Clair streets; and that by ordinance duly enacted by said trustees, at a meeting November 17, 1869, it was ordained and declared that said sum should be levied and assessed upon each front foot of said several lots, and paid by the owners of said several lots to Hugh Campbell aforesaid, within twenty days from the date thereof.

      Twentieth. That the lots of land owned by the defendant, Parks, bounding and abutting upon Jefferson street, between Calhoun and St. Clair streets, are described in plaintiff’s petition, and contain in all fifty feet front on Jefferson street.

      Tioenty first. That the actual expense of said work exceeded by about $6,000 the amount of the assessment. The amount of the assessment was $52,258.53; that, by omitting to supply gravel beneath the flagging of the sidewalks, the work so far fell short of the contract, and the assessment was to that extent in excess ; that the amount in excess was $600, the cost of the gravel remaining to be supplied, and $200, the expense of spreading beneath the flagging, which remained to be performed; that the items charged in ■ the assessment of advertising, $94; attorneys’
    fees, $45; engineer, $500, were no part of the work performed by the plaintiff, and that the work performed by the plaintiff at the contract price amounted to $50,819.53 ; that the whole number of feet on both sides of Jefferson street, from Calhoun street to St. Clair street, exclusive of streets and alleys, is 4,740 feet, and that the work performed amounted to $10.72 1.4 per front foot at the contract price.
    That John M. Parks is now, and at the commencement of this suit was, the owner of lots Nos. 13 and 14, of block No. 87, in the subdivision made by the heirs of William Corry, deceased, in section 14, town No. 3, E. R. 2, of the Miami purchase, each lot of which fronts twenty-five feet on the west side of Jefferson street, making a front of fifty feet, and extending back the same width in rear as in front, between parallel lines, on-e hundred and ten feet.
    And upon the facts hereinbefore found, the court being of the opinion that the lots of the said defendant, John M. Parks, each fronting twenty-five feet on the west side of Jefferson street, as aforesaid, being lots 13 and 14 of block 37, of the subdivision of the heirs of William Corry, deceased, are properly chargeable with the expense of the improvement of said street, to the amount of ten dollars, seventy-two cents, one and four-tenths mills ($10.72 1.4) upon each front foot. If a petition signed by two-thirds of the resident lot owners upon said street was presented to the board of trustees of the special road district, praying for the improvement, but with respect to that the court, upon the facts hereinbefore set forth as to the signing of the petion of September 28, 1868, being divided in opinion whether infants of the age of the children of Mrs. Margaret Shay and Kunnegunda Dusold, respectively, by themselves or with their mothers, also their guardians, might sign such petition so as to make the same as to them á valid petition under the law. It is therefore ordered, upon the motion of the said defendant, that the cause be referred to the Supreme Court of Ohio for its decision.

      Paxton v. Warrington, for plaintiff in error:
    Th¿ trustees acted only on the second petition, and did not consider the first, hence we claim that the two who signed the first petition should not be counted. Corry v. Gaynor, 22 Ohio St. 584; 94 U. S. 202.
    As to considering the four infants as signers, see-Walker’s Am. Law, 326 ; 2 Blackstone’s Com. 191, 192; 57 Penn. St. 467.
    Could the infants herein, by themselves or their mothers, who were also their legal guardians, sign the petition so as to make it as to them a valid' petition ? We claim they could. See Sheldon v. Newton, 3 Ohio St. 507. At all events, their acts were only voidable. 1 Am. L. C. (5 ed.), 300; Harner v. Dipple, 31 Ohio St. 77; Tyler on In. and Cov. 44. And this privilege of the infant to avoid its acts can only be taken advantage of -by the infant or its legal representative. Tyler on In. 59; Bing, on In. 49; Keane
      v. Baycott, 2 H. Bl. 511; Oliver v. Hordlett, 13 Mass. 237; Slocum v. Hooker, 13 Barb. 536; Alsworth v. Gordtz, 31 Miss. 32; Van Bramer v. Cooper, 2 Johns. 279; Jackson v. Todd, 6 Ib. 257; Jackson v. Mayo, 11 Mass. 147; Parsons v. Hill, 8 Mo. 135; Jefford v. Ring old, 6 Ala. 544, and 2 Kent’s Com. 237; Gillow v. Lillie, 27 E. C. L. 548; Grey v. Cooper, 26 Ib. 36; Scovill v. Cleveland, 1 Ohio St. 126; Este v. Strong, 2 Ohio, 401; 5 Ohio St. 543.
    As to estoppel, see Quinlan v. Myers, 29 Ohio St. 500; 34 Ind. 140; 22 How. 364; 94 U. S. 202; Bigelow on Estoppel, 468.

      Long, Kramer & Kramer for defendants in error:
    Whether or not the improvement was petitioned for by two-thirds of the resident lot-owners, raises a question of jurisdiction, on which question see Corry v. Gaynor, 22 Ohio St. 584.
    I. Was the petition upon which the trustees acted, and on which they took jurisdiction, and which was signed by the two widows and their infant children, properly signed by two-thirds of the resident lot-owners? We say not, because Mrs. Shay and Mrs. Dusold were not resident owners of lots within the meaning of the law, in that they -were only entitled to dower in the land, and which was unassigned. 2 Scribner on Dower, 26; Jackson v. Aspell, 20 John. 411; Gooch v. Atkins, 14 Mass. 378; Johnson v. Morse, 2 N. H. 48; 4 Kent, 61; Green v. Putnam, 1 Barb. 500; Sheaf v. O’Neil, 9 Mass. 9; 6 Ala. 873; 1 Wash, on R. P. 285; Corry v. Gaynor, 22 Ohio St. 584.
    If there was no jurisdiction conferred upon the trustees, they could not make a valid or legal assessment, and if the assessment was void, the corporation is liable. Memphis v. Brown, 20 Wall. 289, 311; Kearney v. Covington, 1 Met. (Ky) 339; Maher v. Chicago,38 Ill. 266; Chicago v. People, 48 Ill. 416; Folz v. Cincinnati, 2 Handy, 161.
   Johnson, Chief Judge.

The trustees of this special road district acted under the 46th section of the towns and cities’ act, as amended in 1853 (vol. 51, p. 376 O. L.) 2 S. C. 1509, which reads as follows:

“ No order directing the opening of a new road, street, or alley, or the taking of any land for the improvement, straightening, or changing any road, street, or alley shall be made by the said trustees,'unless they shall all concur therein ; and no order shall be made for the improvement or repairs of any road,, street, or alley, except on the petition of two-thirds of the resident owners of the lots of land through or by which such road, street, or alley, or part thereof to be improved or repaired shall pass.”

In Corry v. Gaynor, 22 Ohio St. 584, it was held: “ The trustees of special road districts have no power, under section 46 of the act of May 3, 1852, above referred to, as amended by the act of May 12, 1853 (vol. 51 Ohio Laws, 376), to order the improvement of streets, and charge the cost thereof upon the abutting lots, except upon the petition of two-thirds of the resident owners of the lots thus situated; and the finding of the trustees, that such petition was presented, is not conclusive of the fact.”

The question is therefore settled, that it is necessary that a petition should be presented, signed in fact by two-thirds of the resident owners of the lots of land; notwithstanding the trustees may have found such petition was presented, the contrary may be shown, and the court below having reserved this question as to whether the improvement w-as petitioned for, to this court, by two-thirds of the resident lot-owners, we proceed to the examination of that question.

The question here presented goes to the jurisdiction of the trustees to make the order for the improvement. There were seven resident owners of lots, exclusive of Mrs. Shay and her children, and Mrs. Dusold and her children. Of the seven, four signed the petition of September 23, 1868. Two others of the seven, not on this petition, signed a previous petition for the same improvement, dated August 19, 1868, so that six out of the seven were on different petitions for this improvement.

It is claimed that the names of the two on the first petition should not be counted, because : 1. The trustees acted solely on the second petition, and did not consider the first.

If the first petition was in fact pending, or if these two signers were at the time actually petitioners, the trustees had jurisdiction, although they had not if we look to the second petition alone.

The first petition was rejected, because of a supposed defect in one of the signatures.

The merits of the proposed improvement were not passed upon. The petition was examined and placed on file. The project was not abandoned, but was still under consideration by the promoters, and on the 23d of September, within thirty days after the first petition was presented, the second was filed. The trustees, supposing it contained the proper number of signers, did not look further, and made the improvement.

The so-called rejection of the first petition was, in legal effect-, a refusal to take action, by reason of a defect of a signature, and not on the merits.

It is said the promoters of the improvement regarded the first petition as dead, because, they immediately proceeded to get up a new one'. If the construction which the promoters may have put on this transaction is to guide the court, then it was a mistake to ask the court to decide the question.

The real question is, was the first petition binding, and not how did the promoters or trustees regard it.

The trustees, it is true, looked only at the second petition, yet if in fact other names were on file, which they might have counted, the power to make the order may be supported. It is not essential that all signers should be on one petition.

Neither is the finding by the trustees, based on the second petition, conclusive of the fact.

In Corry v. Gaynor, supra, it was held that such finding may be impeached, and, a fortiori, it may be sustained.

Therefore, the finding of the trustees, that two-thirds signed the second petition, is impeached by showing that two of the signers, Mrs. Shay and Mrs. Dusold, were not lot-owners. And, for a like reason, their power may be supported, by showing that there were additional petitioners to those actually counted.

The question, then, is, were these two, who signed the first petition, asking for this improvement, petitioners when the order was made ?

It is said that the petition had been rejected for a sup- . posed defect in one of the signatures.

This so-called rejection could be nothing more than a refusal to act. The petition was not rejected, but received, examined, and filed, and remained on file when the order was made. The trustees refused to act on it, for the defect in a signature. They did not refuse to order the improvement, if the requisite number of signers were obtained, and evidently it was understood they would make the order, if signers enough were obtained. Hence the second petition.

These two petitioners never withdrew or revoked their petition, nor does it appear they -would have done so if it had not been rejected.

It may be- conceded, that had these two petitioners known of the refusal to act on the first petition, and that a new one was circulated, they might have rested on that and been free. This knowledge may have made them abstain from revoking their assent. As it is not shown, however, that they had such knowledge, we must presume they continued to be petitioners on the 25th of September.

This presumption is greatly strengthened, in view of the fact that the scheme for the improvement had not been rejected or abandoned, but was still pending; that they had not withdrawn or revoked the petition on their part, and that it -is not shown that these two petitioners ever objected to the improvement; but, on the contrary, so far as appears, continued to favor the improvement, and have paid their assessments without objection.

Notice of the passage of the ordinance for this improvement, passed September 25th, was published in a newspaper of general circulation in the county. On the 22d of July previous, the grade of this street had been established by ordinance; and on the 14th of October, this grade was adopted, and from October 23d to November 4th, public notice was given, in the Cincinnati Gazette, for the letting of the work. Notice was thus legally brought home to all the resident lot owners.

If such was not the fact it was proper to have shown it, and in view of the exhaustive resistance that has been made to this assessment, it is clear it would have been shown to defeat the jurisdiction of the court, if such was the fact.

Eor these reasons the presumption is, that at the time the order was made, these two were actually petitioners and might have been counted by the trustees.

2. The second petition was signed by Mrs. Shay, a widow, and her children, one aged ten, and the other nine years, of whom she was guardian. The land descended to the children from their father; and they, with their mother, resided on it. That these children were resident owners of the lots of land, through or by which the improvement extended, is clear; but whether, beiug minors, they can be petitioners, or whether their guardian, residing on the premises, can sign for them, is a question. Another is, do these children count as one or as two resident owners, and as one or two petitioners ?

The third finding is, that by the authority of Mrs. Shay, and in her presence, her name and that of her children were signed to the "petition, by one Stokes, one of the trustees, she being unable to write.

In Corry v. Gaynor, it was held that neither Mrs. Shay nor Mrs. Dusold were property owners by virtue of their dower rights.

The question then is, Could these children, either by themselves, or by their guardians, become petitioners ?

The jurisdiction of the trustees to act, is made to depend on being asked for by two-thirds of the resident lot owners. The legislation might have authorized them to act, without such petition. The object was to prevent them from imposing an assessment, unless two-thirds of the resident owners asked for it. To petition was not a contract, as counsel assumed. By the act of signing a petition they imposed no obligation on themselves or on the land. Such a petition simply clothed the trustees with a discretion to make the improvement and assess the property or not, as in their judgment was proper. The power to create an obligation was vested in the trustees, and not in the petitioners.

As the signing of such a petition, by a sufficient number, clothed the trustees with a power, not only to impose burdens upon their lauds, but on the lands of others, we think minors have no capacity to sign such a petition. Minors are incapable of binding their own lands by contract, and it could not have been intended to vest in them the power to clothe the trustees with authority to charge the lands of themselves and others for the expense of improving streets.

The manifest purpose of the statute was, to obtain an expression of views of the resident tax-payers liable to assessment.

This expression might have been obtained by an election, in which the resident property owners would be entitled to vote.

The petition is a shorter, and equally effective, method of voting on this question. It could not have been intended to confer this franchise or power on ‘minors.

The abuses to which such a power in minors is liable are so manifest that we conclude the legislature never intended it. The power to vote taxes or assessments must rest in the hands of those liable to pay them.

Under our system of taxation, the guardian of minors, or those standing in that relation, represent their property, and are made responsible to the government for the burdens imposed on it.

By the act of April 8, 1865 (S. & S. 756), “ every person of f ull age and sound mind, not a married woman, shall list the real property of which she is the owner, etc. . . . The property of every ward shall be listed by his guardian; of every minor, child, idiot, or lunatic, having no other guardian, by his father, if living; if not, by his mother, if living,” etc.

By section 69 of the tax laws (S. & C. 1403), every person shall be liable to pay tax for the' lands of which he has the care as guardian, etc.

By section 70, it is made such guardian’s duty to list such lands for taxation, and if he neglects to do so, the auditor may add a penalty of twenty-five per centum; and by section 72, “every person holding lands as guardian,” who neglects or refuses to list or pay the taxes on the land, shall be liable to Ms ward for any damages sustained.

By the statutes relating to guardians, it is made their duty “to manage the estate for the best interest of his ward.”

These statutes show that the intention was to invest the guardian with the control of the estate of his wards, for purposes of taxation, and to hold him responsible to his ward for an abuse of that power. They show further, that it was not intended to impose any responsibility on minors, nor clothe them with any authority over their own lands in relation to taxation. In, the management of the ward’s lands, the guardian has power to do all acts reasonable and proper for the preservation and use of the real estate. This includes all duties relating to listing and payment of taxes, as well as renting and keeping the real estate in proper condition.

Mrs. Shay was guardian of her children, and resided on the land with them. We think she had the power to sign this petition to the trustees to order the improvement. Whether her wards will be bound by her acts in their settlement with their guardian, is another question, to be determined by the same rules that govern all other official acts, where a discretion in the management of the estate is vested in the guardian. As such guardian, Mrs. Shay could represent the land of her wards. The signing by her wards in her presence, and by her direction, is equivalent to her signing as guardian.

Speaking for myself alone, I think where there are several resident tenants in common, all should unite, either by themselves, where they aré adults, or by guardians, if minors, to authorize them to be counted; and that such cannot be counted as one, but all jointly constitute a .resident owner ; but it is not necessary to determine this. If each is counted, then there were eleven resident owners and eight petitioners. If the Sbay children and the Dusold children are each counted one, then there were nine resident owners and seven petitioners, not counting the Dusold children.

In either case, the necessary two-thirds were petitioners.

Cause remanded, to render judgment for the plaintiff.


source: Caselaw Access Project

author: Ashburn, J.

license: Public Domain

text:
    Everett, Weddell & Co. v. Sumner.
    1. The findings of a court or of a jury, upon issue of fact, are not subject to review on proceedings in error, except where it appears from the record that a motion for a new trial was made on the ground that the verdict is against the evidence, and that such motion has been overruled.
    2. A reviewing court will not take notice of an exception to the oharge of a court to a j ury, where the charge consists of several legal propositions, some of which are sound, unless the exception distinctly points out the portion of the charge claimed to he erroneous.
    Error to the District Court of Cuyahoga county.
    Plaintiffs in error, who were plaintiffs below, filed a petition in the court of common pleas against Clarke & Sumner. A. A. Sumner was served with process. The action was prosecuted to a judgment against Mm. Suit was brought upon an accommodation acceptance, drawn upon the firm of Clarke & Sumner by Pool Bros., and dated January 22, 1868.
    On trial to a jury, verdict was rendered for plaintiffs, and finally a judgment in their favor was entered upon the verdict.
    Defendant made a motion for a new trial, and assigned therefor reasons as follows :
    1. That there was error in the charge of the court to the
    2. That by the evidence offered at the trial the defendant was taken by surprise, which ordinary prudence could not have guarded against.
    3. That there is newly discovered evidence, material for the defendant, which he could not with reasonable diligence have discovered and produced at the trial.
    This motion was overruled, and a bill of exceptions taken, embodying all the testimony offered on the trial, the instructions requested by defendant, and the entire charge of the court as given to the jury.
    The case went to the district court on petition in error, and the judgment of the court of common pleas was reversed. The proceedings here are to have the judgment of the district court, reversing the judgment of the court of common pleas, reversed, and to have the judgment of the court of common pleas affirmed.
    From the view of the case we have taken, a moje extended statement of facts is deemed unnecessary.

      S. Burke, for plaintiff in error.

      De Wolf & Schioan, and J. K. Hord, for defendant in error.
   Ashburn, J.

The condition of the record does not require the determination of any question on the merits of the case. Only questions of practice are presented.

Nothing appears on the record to show what, if any, testimony was offered by plaintiff, and admitted by the court on the trial, calculated to take the defendant by surprise, which ordinary prudence could not have guarded against.

The record is equally wanting in facts tending to show the discovery of new and material evidence which defendant could not, with reasonable diligence, have discovered and produced on the trial.

The assignments for a new trial based on these grounds, being wholly unsupported, must fall.

The remaining assignment for a new trial, “ that there was error in the charge of the court to the jury,” is not such an assignment of cause .for a new trial as will authorize the evidence, given on the trial, to be brought on the record for review by bill of exceptions.

By the'act of April 12, 1858 (S. & C. 1155), authorizing a review of the evidence for alleged error in overruling a motion for a new trial, a party demanding a review of the evidence must lay the foundation for bringing the evidence on the record for review, by assigning, in the motion for a new trial that the verdict of the jury, or finding of the court, is against “ the evidence.” No such cause for a new trial was assigned. Such an assignment, as a reason for a new trial, is an indispensable prerequisite to bring the evidence on the record by bill of exceptions for review on the overruling the motion.

We know of no exceptions to this rule. Prior to the act of 1858, it was held, in the case of Remington v. Harrington, 8 Ohio, 508, that, “in motions for a new trial, points not stated in the motion are not open for discussion in the court in bank.” And in Westfall v. Hagan et al., 14 Ohio St. 276, it was held: “ The findings of a court or jury, on the trial of issues of fact made by the pleadings in the action, are not subject to review on error, except where it appears from the record that a motion for a new trial had been made on the ground that the verdict or finding of the court is against the evidence, and such motion has been overruled.”

In this case, no motion for a new trial having been made for the reason that the verdict was against the evidence, there was no authority for bringing the evidence into the record. Hence the district court was not authorized to review it. Ide v. Churchill, 14 Ohio St. 372.

On the conclusion of the evidence, the defendant requested the court to give in charge to the jury three propositions of law. The court refused to charge as requested. No exception was taken to this refusal. The court then gave a charge to the jury consisting of a series of legal propositions. At the conclusion of the general charge the following general exception is found, “to all of which the defendant then and there excepted, and, after a verdict and before judgment, made his motion for a new trial, which was overruled — to all of which the defendant at the time excepted, and presented this his bill of exceptions, which was allowed and signed, and made part of the record.”

It has been repeatedly held in this state, that where the charge of the court to the jury consists of several distinct legal propositions, a general exception is insufficient. The exception must be specific, and distinctly point out the portion, or propositions in the charge claimed to be erroneous.

Under this general exception, the district court was not authorized to look into the charge of the court.

The party seeking a review, having neglected to lay the necessary foundation for bringing the case into the district court for review on the law or the evidence, was not in a condition to invoke the action of the court in either of these respects. It follows that the district court erred in reversing the judgment of the court of common pleas.

Judgment of the district court reversed, and that of the common pleas affirmed, and cause remanded to the court of common pleas for execution.


text:
    Railroad Company v. Miami County Infirmary.
    1. Where a fence, constructed by an individual and landowner, serves as a partition fence between a railroad track and the inclosed fields of such individual owner, but not so divided that each owner is charged with maintaining in repair a distinct portion thereof, the railroad company and individual landowner are each under equal obligations to keep and maintain the entire fence in repair until so divided.
    2. If the landowner, knowing the partition fence to be out of repair, turns his stock into a field inclosed by such defective fence, and, by reason of its insufficiency, bis stock goes upon the railroad track, and is killed by a passing train run without negligence, such landowner is chargeable with contributory negligence, and can not recover for the loss.
    Error to District Court of Miami county.
    The directors of the county infirmary of Miami county, plaintiff below, brought this action against defendant below, the Dayton and Michigan Railroad Company, to recover damages for killing stock belonging to plaintiff.
    Plaintiff claimed to own two horses of the value of one hundred and seventy-five dollars each; that, without fault on its part, its stock broke out of the inclosure belonging to plaintiff, adjacent to the track of defendant, and by reason of the negligence and failure of defendant to construct and maintain a good and sufficient fence on the sides of its track and grounds occupied by defendant, strayed upon the railroad track; that on the 6th day of September, 1869, defendant so carelessly and negligently managed its cars and locomotive that the same ran against and over the horses of plaintiff, thereby killing each of them, without any fault or negligence on the part of the plaintiff, to plaintiff’s damage five hjmdred dollars, for which he prayed judgment. Defendant’s answer was a general denial of the allegations contained in the petition.
    A trial to a jury resulted in a verdict in favor of plaintiff below. The defendant made a motion for a new trial, assigning the following reasons:

      First. Because the verdict is against the weight of evidence.

      Second. Because the verdict is against the charge of the court.

      Third. Because the verdict is against the law.
    This motion was overruled, defendant excepted, and a bill of exceptions was taken, bringing all the evidence on the record, and also a charge given to the jury, as requested by defendant. A petition in error was prosecuted in the district court, and resulted in an affirmance of the. judgment. These proceedings in error are to obtain a reversal of this judgment of affirmance.

      James Murray, for plaintiff in error:
    I. Where there is no fence, when the law requires it, the killing is prima facie evidence of negligence; but it is no evidence, prima facie or otherwise, when there is a fence, or where the law does not require one. 1 Redfield Railway, 486; Scott v. W. & B. R. Co., 4 Jones (L.), 432; Cox v. P. R. Co., 47 Mo. 246; Bellf. R. Co. v. Lumman, 29 Ind. 40; I. & C. R. Co. v. Adkins, 23 Ind. 340; Toledo, etc., R. Co. v. Wickey, 44 Ill. 76.
    II. The plaintiff below was guilty of contributory negligence. Railroad v. Jones, 20 Ill. 221; Railroad v. Sloan, 27 Ohio St. 341.

      Walter S. Thomas, for defendant in error :
    I. If a railroad company neglects to maintain proper fences, it is liable for cattle killed on its road, without any further proof of negligence. Suydam v. Moore, 8 Barb. 358; Shepherd v. N. Y. & E. R. R., 35 N. Y. 641; Waldron v. R. & S. R. R., 8 Barb. 390; Horn v. A. & St. L. R. R., 35 N. H. 169; s. c. 36 id. 440; Smith v. East. R. R., 35 N. H. 356.
    II. If cattle trespass on a railroad through the negligence of their owner, the company is liable for injury done to them, if a collision could have been prudently avoided. Wharton on Negligence, §§ 397, 893; Eames v. S. & L. R.

      R., 98 Mass. 560; Cin & Zanes. R. R. v. Smith, 22 Ohio St. 227; Needham v. S. J. & S. F. R. R., 37 Cal. 417; C. B. & Q. R. R. v. Seirer, 60 Ill. 295.
    Even if there be any contributory negligence on the part of owner, the company is not excused, if the injury is needless or even careless; the company is still bound to use ordinary care and prudence to avoid an infliction of injury. Needham v. R. R., 37 Cal. 409; Ill. Central R. R. v. Middlesworth, 46 Ill. 494; Shearman & Red. on Neg., § 456, and cases cited.
    The simple killing of an animal by a railroad train is prima facie evidence of negligence on the part of the engineer. Ind R. R. Co. v. Meek, 10 Ind. 502.
    The statute requiring railways to fence their roads, and making them liable for injury to cattle, is a police regulation. Suydam v. Moore, 8 Barb. 358; I. & C. R. v. Townsend, 10 Ind. 38; Jeff. Railw. v. Applegate, Ib. 49; I. & C. R. R. v. Meek, Ib. 502; Jeff. Railw. v. Dougherty, Ib. 549.
    A statute requiring a railroad company to fence its lines is a police regulation, and obligatory upon all railroads, whether chartered before or after its passage. Wilder v. Maine Cent. R. R. Co., 65 Maine 332 (20 Am. Rep. 698); Ind Railw. v. McAhron, 12 Ind. 552; Penn. Railw. v. Riblet, 66 Penn. St. 164; Buckley v. N. Y. & N. H. Railw. Co., 27 Conn. 479; Conn. & Pass. Railw. v. Holton, 32 Vt. 43; Shearman & Redfield on Neg., § 456, and cases cited; Ind. Railw. v. Kercheval, 16 Ind. 84.
   Ashburn, J.

The part of the charge appearing in the record is quite as favorable to the defendant as the facts of the case would authorize, but we do not feel warranted in saying the verdict of the jury was against the law of the case.

We think, however, that the verdict is clearly against the evidence, and that a new trial should have been granted for that reason.

It appears from the evidence, that defendant’s track ran directly through the inclosed lands of the county infirmary of Miami county. There was a fence on1 each side of the railroad track, where it passed through plaintiff’s inclosure, which had been built exclusively by the plaintiff below. The fence served the purpose, in fact, of a partition fence between the inclosed fields of plaintiff and the lands of defendant used as a track. No division of the fence, as a partition fence, had ever been made.

The fence was, at the time the stock was killed, out of repair. This condition of the fence must have been' known to the defendant from the daily use of that portion of its track. Plaintiff’s lands were in charge of its agent, the superintendent, and he knew, when he ordered the horses, on the evening of September 6, 1869, to be put into that inclosure, that the fence, abutting on the railroad track, was out of repair. He testifies in chief: “I told the boy to turn them into this field on that Sunday evening. Had some talk about it being safe to do so; had some fears about doing so on account of condition of the fence; but finally, thinking that there were no trains over the railroad on that night, I concluded to risk it, and consequently ordered them in. The fence was in about the same condition as when I went there.” And, on cross-examination, says: “Did not consider the fence first class, but thought there was no danger, as there were no trains that night. Was a stake and rider fence, but needed repairs where the horses got out. There was no stake to the fence at that point.”

Charges Wilson, an inmate of the infirmary, testifies : “ Pence where horses got out six to seven rails high; it was not staked ; the fence looked as if the top rails had been shoved off. The fence in the adjoining pasture lot was generally like the one in the lot from which they broke out.”

The proof showing that the fence was defective is clear and uncontradicted. The horses could pass over it and upon the railroad track, and this plaintiff knew, through its agent, at the time the stock was killed.

The evidence does not show negligence on the part of the railroad company in ninqing its train on that occasion, but rather that its train was conducted with skill and care. When the agents of the railroad company discovered the horses on the track, the proper efforts were used to avoid, if possible, killing the horses.

The superintendent knowing the fence was out of repair, but thinking no trains would pass over the road that night, took the risk of the horses going over the defective fence and upon the railroad track. Plaintiff had put the superintendent in charge of its lands and horses, so that his judgment was its judgment, and plaintiff was chargeable with the risk he took in ordering the horses into the inclosure with fences out of repair — took the risk of a train passing over the track on that night.

By the act of March 25, 1859 (S. & C. 381), all railroads in this state are required to construct and maintain fences on each side of the railroad track, which become partition fences, when serving that purpose.

This statute is constitutional, founded in a sound public policy, and equally obligatory upon railroad companies, whether organized under charters granted prior, or laws enacted since the constitution of 1851 went into operation.

Where the railroad track passes, as it does in this case, through any inclosed field or fields, the proprietor thereof is required to construct one-half the fences necessary to partition such inclosed lands from the railroad track. The construction of such fences may be enforced as are partition fences between individual owners. “ Where such fences are duly made, they shall be kept in repair in all respects as partition fences are now by law required to be kept in repair.” (S. & 0. 332, § 3.)

When this division fence is constructed, whether by the railroad company or individual abutting proprietor, it becomes, in all respects, a partition fence. Each adjacent landowner is required to keep up and maintain in good repair all partition fences between their own and the next adjoining inclosure, iu equal shares, so long as both parties continue to occupy the same. (S. & C. 649, § 2.)

This fence, separating the inclosure of the plaintiff from the land of the defendant, though constructed by the plaintiff', was a partition fence, and under the provisions of the statute, it was alike incumbent upon defendant and plaintiff' to see that it was maintained and kept in good repair. Failing to keep this partition fence in proper repair, the parties were each negligent in the discharge of a statutory duty. By reason of this negligence with respect to keeping the fence in repair, if plaintiff’s horses had gone upon the railroad track and been killed by defendant’s cars, and the plaintiff was free from fault, defendant, although its trains were run free from negligence, would be liable in damages for the value of the horses killed.

This partition fence being undivided, the adjacent proprietors were each under obligations to keep the fence in good repair. While this duty was cast upon the defendant, a like duty was cast upon the plaintiff. Its agent put the' horses in the inclosure abutting upon the railroad track, knowing the fence was out of repair, aud that the horses could, as indicated by the superintendent’s apprehensions, pass over the fence and upon the railroad track. This, we think, was negligence on the part of plaintiff', such negligence as contributed to the loss.

In principle, this case comes directly within the ruling of the court in The Sandusky & Cleveland Railroad Company v. Sloan, 27 Ohio St. 341.

The judgments of the district and common pleas courts are reversed, and case remanded for further proceedings.


author: Wright, J.

text:
    Railway Company v. Hutchins.
    Timber was cut from lands of B. by trespassers, who, by their labor, converted it into cord wood and railroad ties, thus increasing its value threefold. It was then sold to an innocent purchaser who was sued by B. for the value of the wood and ties. Whatever might be the rule of damages, as against innocent purchasers, B. can not recover the value of the timber as enhanced by the }abpr pf the wrong-doers, after it was severed from the realty.

      Error to the District Court of Cuyahoga county.
    The petition in this case avers that the said minors Joseph and Edward Barbour are owners in fee simple of a certain tract of land in Lake county, and then proceeds as follows:
    Said land, when owned by said minors, was thickly wooded with excellent timber, and was very valuable on that account; that all, or nearly all, of said timber, while said land was owned by said minors, was cut down and removed by persons now to this plaintiff unknown, without any authority whatever, and the same taken, used, and possessed for its own benefit, without any authority whatever, by the Cleveland, Painesville, and Ashtabula Railroad Company, which was, on or about the 1st day of April, 18G9, consolidated with certain other railroad companies under the name and style of the Lake Shore and Michigan Southern Railway Company, which last named company is made the defendant in this action.
    By reason of said timber being taken from said land and converted to its own use by the Cleveland, Painesville, and Ashtabula Railroad Company, said minor children were damaged in the amount of four thousand six hundred and fifty dollars ($4,650), for which sum, by reason of the premises, plaintiff asks judgment against the defendant, the Lake Shore and Michigan Southern Railway Company.
    It is denied in the answer, that plaintiffs were owners in fee simple of the land in question.
    A large quantity of wood and railroad ties was cut, upon this land, by persons who were trespassers, acting without legal right. There is some attempt in the evidence to show that these trespassers had some lawful claim, by virtue of a tax title, to part of the premises. But for the purposes of the case, this claim is ignored, and it is assumed that the timber was actually stolen. Having been thus unlawfully appropriated, it was sold.by the parties who took it to the railroad company, but it is admitted that the company purchased and paid for the wood, trees, and ties, in good faith, without notice of plaintiffs’ rights, or that any wrong had been or was clone his woods.
    The fair value of the timber standing upon plaintiffs’ land, and before cut into cord wood, and hauled to the defendant’s railroad, was about $1 per cord — after being so cut and hauled it was worth about $8 per cord. • There was the same difference as to the relative value of standing timber aod that cut into ties and hauled.
    The railroad company claimed, as the rule of damages, that it was liable orfly for the value of the timber as it stood upon the ground, say $1 per cord. Plaintiffs claim that the company was liable for the wmod, as it was increased in value by the labor of the trespasser, cutting and hauling it, say $3 per cord. Defendant, the railroad company, asked the court to charge:
    “ 2. That if the jury find the fact to be that the defendant cut no timber upon the land of plaintiff’s said wards, and employed no person to do so, but purchased all the wood and timber of all sorts that it is charged with the conversion of from persons who did cut and remove it from the land and sold it to the defendant; that the defendant would not be liable to the plaintiff for the value of the timber, wood, and ties purchased, at the time of the purchase, but only for the value of the timber before it was cut into wood and ties and sold to defendant. That the measure of damages if the defendant purchased said property in good faith was the fair value of the timber standing on the plaintiff's woodland, and, before it was cut into wood or ties and hauled onto defendant’s railway and sold to it.”
    This charge was refused, and the court did charge as follows:
    “ Judge Eoot in a former trial of this case settled the rule of damages to be the value of the timber, in the condition it was at the time it was received and converted by the defendant. This I also say to you should be the rule you should adopt in ascertaining the amount of your verdict.
    “ I have found it much easier to repose confidence in the court, and adopt its consideration in this question of damages than reconcile myself to its correctness. But you will take it as the law of the case.”
    The refusal to charge as requested, and the charge as given was excepted to.
    On the first trial to the court, November term, 1871, plaintiff recovered a judgment of $2,500. On the second trial to a jury, February term, 1872, the verdict was $3,843.72. This judgment was i’eversed in the district court. At the third trial, November term, 1873, the verdict for plaintiff was $5,680, which was reduced by the court to $3,412.72, and judgment was rendered for that amount.
    The principal errors assigned are, in the charge as to the matter of title, and the rule of damages.
    The district court having affirmed the judgment of the common pleas, a petition in error was filed in the supreme court.
    J. Mason, Estep & Burke, and W. J. Boardman, for plaintiffs in error:
    The court erred in its charge to the jury as to the rule of damages. Weymouth v. Railroad, 17 Wis. 550; Moody v. Whitney, 38 Me. 174; Forsyth v. Wells, 41 Penn. St. 291; 26 Me. 310; 3 Ad. & El. 440; 30 Wis. 570; 24 Wis. 299; 29 Wis. 345; 55 Penn. St. 176; Sedgwick on Damages, 495; 22 Ga. 353; 49 Miss. 236; 29 Conn. 479; 26 Conn. 355; 15 Conn. 302; Wolsey v. Seely, Wright, 360.

      J. E. Ingersoll, for defendant in error,
    on the rule of damages, cited Silsbury v. McGoon, 3 Comst. 379; 7 Cow. 94; 8 Wend. 505; 28 Eng. L. & Eq. 175; 5 M. & W. 351.
   Wright, J.

We have not deemed it necessary to solve all the nice and difficult questions that relate to the -plaintiffs’ (Barbours’) title to this land. Whether or not they had the legal, they did also claim an equitable title, and there, was some evidence-to sustain the claim. This question of fact was left to the jury, who found upon it for plaintiffs below. We are not clear that this finding was so palpably against the weight of evidence as to justify interference by us. We therefore assume that plaintiffs had title sufficient to maintain the action in that respect, and proceed to the second point, the rule of damages.

The petition, it will be noticed, is not as for a trespass to real estate, but to recover the value of the wood and timber stolen; the action throughout was treated as one to recover that value, and the case is so treated here.

Upon the point now to be determined, the case is thus: A large amount of wood was cut down upon plaintiffs’ land, and stolen. The thieves work it up into cord-wood and ties, thus increasing its value three-fold. The depredators then sell it to the railroad company, who is entirely innocent in the whole matter. The real owner now sues the railroad company for the property taken from his land. Shall he recover one dollar or three ?

It is said upon the one hand to be an universal rule of law that a man’s property can not betaken from him without his consent, unless by law, and that stealing can convey no title to the thief. In Silsbury v. McCoon, 3 Comst. 381, it is said : “ It is an elementary principle in the law of all civilized communities, that no man can be deprived of his property, except by his own voluntary act, or by operation of law. The thief who steals a chattel, or the trespasser who takes it by force, acquires no title by such wrongful taking.” It is then argued that the thief, having none himself, could convey no title to any other person taking it however innocently. Hence when the railroad company obtained the property they obtained what was the plaintiffs’, and they could have replevied it, increased in value as it was, by the labor of the thief. If this were so, then it is argued that the company were liable for the value of the wood in its improved condition, enhanced to the extent of three-fold.

If the owners were bringing this action against the thieves, perhaps it might bo conceded that the full amount could be recovered. This we understand to be upon the principle “ in odium spoliatoris.” The thief will not be allowed to have anything by virtue of his own wrong, and if he has spent his labor upon stolen goods, he shall not profit by it. It is his own loss.

“ The English law will not allow one mau to gain a title to the property of another, upon the principle of accession, if he took the other’s property willfully as a trespasser.” 2 Kent, 363.

But it seems to be well understood that the rights of the parties are made to depend, to a great extent, upon the intent with which the conversion of property has been brought about. If it was taken mala fide, by theft, or with a willful purpose to do wrong, the consequences are different from those which follow upon the act done under an honest mistake, and perhaps it is as wise to punish the robber as to protect the innocent.

In treating of confusion of goods, Blackstone speaks of the difference between cases where admixture is by consent of both parties, and where it is by the willful act of one, and in regard to the latter the author says : “ Our law, to guard against fraud, gives the entire property, without any account to him whose original dominion is invaded.” In case of the confusion by consent, it is otherwise, and each party retains his interest.

Mr. Cooley, in his note to page 404, book 2, recognizes the same distinction between a fraudulent purpose, and an innocent mistake. The same distinction is made in 2 Kent, 363; Sedg. Dam. 484.

Field on Damages, section 818, says : “ There should certainly be a distinction between a case of mere technical conversion, when, perhaps, the defendant acts in good faith, and-that of a willful conversion and wrong done by the defendant.”

The cases as to what is the proper rule of damages, where property has been taken and by the taker improved iu condition or enhanced in value, are numerous, but a reference to some will show some of the difficulties attending the subject.

In Silsbury v. McCoon, the corn of one Wood had been manufactured into whisky by plaintiff. The defendants, as judgment creditors of Wood, took it, and plaintiff sued for the value of the whisky. The case is first reported 6 Hill, 425. Here it is decided that the change from corn to whisky was a change of identity, and transferred the property to plaintiffs, who were the manufacturers producing the change. This decision goes wholly upon the question of identity.

There is a learned note to this case, which discusses the question of innocent and wrongful conversion, and the citations there given from Puffendorf, Justinian, and Wood’s Institutes are apposite.

This case is again reported in 4 Denio, 332. Here the idea that the rights of the parties depeud upon motive or intention is flatly repudiated, the court holding that as long as the owner can trace his property, he may regain it; thus again making identity the criterion.

The case is reversed in 3-Comstock, 381, upon the ground that the animus with which the corn was converted was an important element, and that if plaintiffs, when they took it, knew that they had no right to it, they could obtain no title, although by the manufacture into whisky they had changed the identity.

The simple fact, therefore, that the property can be traced into its improved state is not always sufficient to insure a recovery of the improved article or its value.

It must be remarked, however, that the text books do assert that the proposition of identity is the controlling one. Kent says : “ It was a principle settled as early as the time of the Tear Books, that whatever alteration of form any property had undergone, the owner might seize it in its new shape, and be entitled to it in its state of improvement, if he could prove the identity of the original materials ; as if leather be made into shoes, of cloth into a coat, or a tree be squared into timber.” 2 Kent, 263; Betts v. Lee, 5 Johns. 348; 2 Blk. 404. It will, however, appear that other considerations enter into the solution of the question.

In Hyde v. Corkson, 21 Barb. 92, it is held that, “in acquiring title to property by accession, the law makes a distinction between a willful and an involuntary wrong-doer. The former can never acquire the title, however great the change wrought in the original article may be, while the latter may.”

“ Where a manufacturer has expended his money and labor, in good faith, upon property, in pursuance of a contract with the owner, he can not be regarded as a wrongdoer, or deprived of the enhanced value which he has given to the property, in an action by the owner, sounding in damages.”

It is said, in the course of the opinion, that the “ distinction between a willful and an involuntary wrong-doer runs through the authorities, and stands upon the principle that a party can obtain no right by his own wrong.” (p. 105.)

Martin v. Porter, 5 M. & W. 351, was a case where defendant, in working his coal mine, broke through the barrier, and took the coal under the land belonging to plaintiff. Plaintiff recovered the full value, without any deduction to defendant for his expenses in getting the coal. But in Hilton v. Woods, L. R., 4 Eq. 440, the rule in Martin v. Porter is limited to cases of fraudulent conduct. And such is the effect of the case of Morgan v. Powell, 3 Ad. & El. (N. S.) 278; and in Wood v. Morewood, 3 Ad. & El. (N. S.) 441, Parke, B., told the jury that “ if there was fraud or negligence on the part of defendant, they might give, as damages under the count' in trover, the value of the coals at the time they first became chattels, on the principle laid down in Martin v. Porter; but if they thought the defendant not guilty of fraud or negligence, but acted fairly and honestly, in the full belief that he had the right to do what he did, they might give the fair value of the coals, as if the coal-fields had been purchased from the plaintiff.”

In Hilton v. Woods, L. R., 4 Eq. 432, the head-note is: “ In assessing compensation for coal already gotten by defendant, the court being of opinion that he had worked it inadvertently, and not fraudulently, held that he was to pay only the fair value of such coal, as if he had purchased the mine from defendant.”

Malius, Y. C., says : “ There is much difficulty as to the mode of assessing the compensation to an owner of coal which has been improperly worked by the owner of an adjoining mine. It is clear upon the authorities that a different principle is applicable when the coal is taken inadvertently, or, as in the present case, under a bona fide belief of title, and when it is taken fraudulently, with a full knowledge on the part of the taker that he is doing wrong, or, in other words, committing a robbery.”

In these English cases, the right of plaintiff to recover the increased value of the coal — that is, the value occasioned by the expense of mining, is made to depend on the animus of the party committing the .trespass. If he stole, he loses his labor and money. If he made an honest mistake, he does not incur that loss, and the owner only recovers the value of the coal without its accession. There would seem to be a very short way out of. these difficulties, if the question of identity was the only one. There was no trouble in the owner identifying his coal, but this does not entitle him to recover its value, increased by being mined, except in case of bad faith. It should be noted that Jegon v. Vivian, L. R., 6 Ch. App. 742, seems disposed to limit this rule of damage to cases at law, not applying it in equity. There are a number of coal cases in Pennsylvania. In Forsyth v. Wells, 41 Penn. St. 291, Lowrie, C. J., after discussing the conflict in the cases, says: “We prefer the rule in Wood v. Morewood, where Parke, B., decided, in a case of trover for taking coals, that if the defendant acted fairly and honestly, in the full belief of his right, then the measure of damages is the fair value of the coals, as if the coal-field had been purchased from the plaintiffs.”

“ Where the defendant’s conduct, measüred by the ordinary standard of morality and care, which is the standard of the law, is not chargeable with fraud, violence, or willful negligence, or wrong, the value of the property taken and converted is the just measure of compensation. If raw material has, after appropriation and without such using, been changed by manufacture into a new species of property, as grain into whisky, grapes into wine, fur into hats, hides into leather, or trees into lumber, the law either refuses the action of trover for the new article, or limits the recovery to the value of the original article.

“ Where there is no wrongful purpose or wrongful negligence in the defendant, compensation for the real injury done is the purpose of all remedies; and so long as we bear this in mind, we shall have but little difficulty in managing the forms of action, so as to secure a fair result^. If the defendant in this case was guilty of no intentional wrong, he ought not to have been charged with the value of the coal, after he had been at the expense of mining it, but only with its value in place, and with such other damage to the land as its mining may have caused.”

This case also holds that no change in the form of action can vary the rule of damages.

In Herdie v. Young, 55 Penn. St. 176, the defendant had been cutting timber on his own tract, and by mistake cut some upon an adjoining tract of plaintiff. The trespass was not willful or wanton, but was in a bona fide belief of title. The logs had been driven to the boom, and plaintiff sought to recover their value at that place, which was of course enhanced by the labor and expense defendant had put upon them. But it was held that the rule of damages was the value of the timber in the stump when the trees were cut;

Agnew, C. J., says: If defendant “ denies that his trespass was willful or wanton, and claims a right to the additional value given to the chattel by his labor and money in converting and transporting it to the place where it is replevied, he has it in his power to bring the damages of the plaintiff to their true standard. In a case of inadvertent trespass, or one done under a bona fide, but mistaken, belief of right, this would generally be the value of the logs at the boom, less the cost of cutting, hauling, aud driving to the boom. Such a standard of damages, growing out of the nature of the act and of the form of action, is reasonable, and does justice to both parties. It saves to the otherwise innocent defendant his labor and money, and gives to the owner the enhancement of the value of his property, growing out of other circumstances, such as a rise in the market price, a difference in price between localities, or other adventitious causes.” Coleman’s Appeal, 62 Penn. St. 252-278.

In the case of Barton Coal Co. v. Walter Cox, 39 Md. 1, the question is much discussed and the authorities reviewed.

In Heard v. James, 49 Miss. 236, the rule of damages in case of conversion is said to be determined by the animus of the party trespassing. If the act was in good faith, upon some supposed right or claim, or error, the rule is the value of the property when taken; but. if the taking be characterized by malice or oppression, damages may be punitive, and in an action no allowance will be made the defendant, for any increased value bestowed on the property by his skill and labor.

In this case trees had been cut down on plaintiff’s land and made into staves, and the question was whether plaintiff should recover as damages the value of the staves, or only of the trees as they stood ou his ground. The plaintiff was allowed to recover the full value, allowing defendants nothing for their labor in working up the timber into staves, and upon the principle stated. The court, says, “ The conduct of defendant was willful, utterly regardless of'the rights of the plaintiff.”

That the intent of the defendant is material in regard to damages, has always been recognized in our law. Bpon this is founded the whole idea of exemplary damages. We know it has been strenuously urged iu what has been called “ the speculative notions of fanciful writers ” (McBride v. McLaughlin, 5 Watts, 375; Sedgw. 463), that punishment belongs only to the administration of criminal law, and has no proper place in that civil procedure which adjusts only the rights of parties; but the principle is too firmly.settled to be controverted now. Pratt v. Pond, 42 Conn. 318; Walker v. Fuller, 29 Ark. 448; Grund v. Van Vleck, 69 Ill. 478. And yet the rule should be carefully applied, as it may leave to courts and juries to determine the extent of punishment unrestricted by the well-defined limits of statutory enactment. Therefore it is that there are authorities holding that even in cases of willful trespass, if the trespasser has made a large increase in the value of the property by his labor, it will not be allowed that it shall all go to the original owner, because it is said to be unjust.

The fact that the trespasser is to lose the labor and expense he has put upon property he has wrongfully taken, results as a punishment to him for what he has done ; on this ground the original owner recovers the increased value, not because of any rights in him, but because the law gives this infliction, as a terror to offenders. Tet the punishment must be proportioned in some way to the circumstances of the case, and a proper inquiry is, iu what manner and to what extent should the. trespasser suffer, and conversely what should be the kind and measure of redress to the injured party.

Brown, J., puts this case (Silsbury v. Me Coon, 4 Den. 337) : A trespasser who takes iron ore and converts it into watch-springs, by which its value is increased a thousand fold, should not be hanged; nor should he lose the whole of the new product. Either punishment would be too great. Nor should the owner of the ore have the watch-springs, for it would be more than a just measure of redress.

The Supreme Court of Wisconsin adopts the same idea. The case of Single v. Schneider, 30 Wis. 570, is a case where logs were willfully cut from the premises of another*, they say it is unnecessax’ily severe that defendant should lose the value of all their labor, s. c. 24 Wis. 299; Weymouth v. C. & N. W. R. R., 17 Wis. 550; Hungerford v. Redford, 29 Wis, 345. An interesting discussion of the question of damages by Judge Cooly is to be found, in. Wetherbee v. Green, 22 Mich. 811, the syllabus of which is: “ No test which satisfies the reason of the law can be applied in the adjustment of questions of title to chattels, by accession, unless it keeps in view the circumstances of relative values. The purpose of the law will not be gained by establishing arbitrary distinctions based upon physical reasons; but its object must be to adjust the redress afforded to one party and the penalty inflicted on the other, as near as the circumstances will permit, to rules of subt stantial. justice, if very great increase in value in the change of property from one form to another, is of more importance in determining the rights of parties in it, than any inexpensive chemical change of mechanical transformation, however radical. And where timber of the value of $25 had been, in the exercise of what was supposed to be proper authority, converted into hoops, of the value of $700, the title to the property, in its converted form, passed to ihe party by whose labor, in good faith, the change had been wrought.” In this case it was a conceded fact that the taking of the timber was in good faith, defendant supposing that he had a license so to do from the orvner of the land. In this, however, it . appears he was mistaken. Judge Cooley discusses very fully the distinction between cases where property is taken innocently, and where it is taken dishonestly, and recognizes the proposition that the rule of damages is varied accordingly. Ho also discusses the rule already so frequently spoken of, that w'hen the owner can trace the identity of his property, he may reclaim it however it may be increased in value. But this he seems to think an unsatisfactory test, the purpose of the law being to adjust the redress afforded to the one party, and the penalty inflicted upon the other, as near as the circumstances will permit, to the rules of substantial justice. If one had a stick of timber stolen, and could distinctly trace it into a house being newly built, the identification might be beyond peradveuture, yet no one would claim that the owner of the stick could recover the whole house, either in ejectment or its value in damages. Or a particular piece of wood might be followed into an organ, but the owner of the wood could not replevy the organ. Where the right to the improved article is the point in issue, certainly the question should be considered, how much the property or labor of each has contributed to make it what it is, at least in those cases where no bad faith exists.

It can not therefore be true, in every instance, that because a man can trace his property, he can always recover it, regardless of the circumstances under which it has come into the hands of the present holder, regardless of its improved condition, and regardless of the injury an absolute and unconditional recaption may occasion. ■ The law as Judge Cooley says, endeavors to do what is right and just between the parties, and while it will seek to compensate the real owner, will not occasion outrage to one who has been innocent.

It may be that if these owners had found their wood in the hands of the trespassers, it might have been retaken, or its value as cord wood recovered ; but if so it would be upon the principle “ in odium, spoliatoristhe thief could gain nothing by his own wrong, and therefore the results of his labor go to the owner of the property. But this principle can not apply where an innocent purchaser, comes into the case, for the simple reason that he has done no wrong.

It is very time that the willful trespasser or thief can convey no title to one to whom he sells, however innocent the purchaser may be. But the question right here is, what does “title” in this connection mean? The original owner has the title ” to his timber, and, as against the thief, the title to the results of the thief’s labor. The wrong-doer, as it were, being estopped from setting up any claim by virtue of the wrong he has done. Against the innocent purchaser from the thief, the original owner still has the “ title ” to his timber, but by virtue of what does he now have “ title ” to the thief’s labor? The estoppel, so to call it, being created by fraud or wrong, exists only against the one guilty of that fraud or wrong, which the purchaser is not, and while it is effectual against 'the wrong-doer, the reason of it does not exist as against the innocent man, as to whom it therefore fails. As Judge Cooley says, it does not comport with notions of justice and equity, that against those who have done no wrong, these owners should recover three ti mes the value of what they have lost. They have never spent one cent of money, nor one hour of labor, in changing this timber worth one dollar, into cord wood worth three. All this was done by some one else, and why should the owners recover for it? If they are compensated for what they have lost, and all they have lost, they are certainly fully paid. Woolsey v. Seeley, Wright, 360. And this is all they should be allowed to recover.

Eor this error, in the charge on the subject of damages, the judgment is reversed.


author: Scott, J.

text:
    Holden v. Belmont.
    In an action for the recovery of damages, tried by a jury, if the verdict shows upon its face that the damages assessed have been estimated upon an erroneous and illegal basis, such verdict should, on the motion of the party prejudiced thereby, be set aside; and it is error to enter judgment thereon, against his objection.
    Error to the District Court of Cuyahoga county.

      John W. Heisley, and Arnold Green, for plaintiff in error.

      George S. Kain, for defendant in error.
   Scott, J.

The petition of the defendant in error in the court of common pleas, shows that his action was brought to recover damages for the alleged false and fraudulent representations of the defendant helow, whereby he was induced to, and did, enter into a contract with said defendant, the terms of which he sets out specifically, and also for certain breaches of said contract by the defendant. The plaintiff' did not seek a rescission of the contract, in whole or in part, on the ground of fraud; but brought an action in affirmance of the contract, retaining such considerations as he had received, in part performance, from the defendant. The false and fraudulent representations complained of were mainly in relation to the character, quality and value, of a tract of land in Tennessee, which by the contract the defendant agreed to sell, and by deed convey to the-plaintiff', and also in regard to the defendant’s title to, and ownership of said land- In consideration of such conveyance, and of the sum of $400, to be paid to the plaintiff, he agreed to and did transfer to the defendant, his equitable interest and title to twenty acres of land, near Cleveland, which he held under.a contract, upon which $2,800 remained to be paid, and also delivered to the defendant certain goods and chattels of the estimated value of $621.

The petition of the plaintiff below avers that the Tennessee land wholly fails to satisfy the description fraudulently given of it by the defendant, and on which he relied in making the contract; and that defendant had no title to said land, and has wholly failed to convey the same to him. These averments were all denied by answer. The issues of fact were submitted to a jury for trial. Testimony was offered on the trial, tending strongly to show fraudulent and false representations made by the defendant to the plaintiff in regard to the quality, character, and improvements of the Tennessee tract of land, consisting of one hundred acres, and that instead of being worth, twenty dollars per acre, as represented by the defendant, it was, in fact, worth not more than from one to three or four dollars per acre. In regard to the title to this land, the following facts were shown by the testimony, and were uncontroverted: On the 15th day of October, 1868, one "William C. Hill, of Tennessee, being the owner in fee of said land, sold the same to one Baker, who paid the purchase money in full, and received from Hill a deed of conveyance, duly executed in regular form, except that a blank was left therein for the insertion of the name of the grantee. It was thus executed in blank as to the grantee, at the instance of the purchaser, to facilitate the conveyance of the land to any subsequent purchaser; Hill authorizing the blank to be filled by the insertion of the name of such subsequent purchaser. Shortly afterward Baker sold the land, through one Rogers, to Holden, the present plaintiff in error, and defendant below, who paid in full therefor three hundred and fifty dollars, and received a transfer of Hill’s deed by delivery. On the 16th of November, 1868, Holden, by the contract between the present parties, agreed to convey the land, by a good and valid deed, to Belmont, the plaintiff below, within six weeks from that date; and in professed performance of that stipulation, inserted the name of Belmont as grantee in the deed from Hill, and, with the consent of Belmont, transmitted it to Tennessee for record. The deed thus'filled up was duly recorded in the proper county of Tennessee, returned to Holden, and by him delivered to Belmont, who being a German, unacquainted with the English language, accepted it in ignorance of any irregularity in the transaction. Belmont is thus, apparently at least, invested with the legal title to the premises, by a deed of conveyance, in fee simple, in all respects regular upon its face, and purporting to have been duly executed and acknowledged by Hill, and whiph is of record in the proper office. Questions appear to have arisen on the trial as to the character of the estate or interest in the premises with which Belmont was, by these means, invested.

On this subject, the bill of exceptions shows that the court instructed the jury, among other things, that they “ should charge the plaintiff with whatever interest he had in said Tennessee lands, by virtue of said deed; and in ascertaining what that interest was, they must take into consideration the fact that the deed could be used by plaintiff’ only to complete a legal conveyance, and that they might take info consideration what that interest thus held was worth.” The verdict returned by the jury was as follows:

State of Ohio, Cuyahoga county, ss. :
“ May term, A. D. 1873, to wit: May 29, 1873:
“We, the jury in this case, being duly impaneled and sworn, do find for the plaintiff in the sum of nineteen hundred dollars ($1,900), and that said plaintiff has no claim, title, or interest in the Tennessee land in this suit, and that said deed for the same is the property of the defendant.”

This verdict the defendant below moved the court to set aside, and grant him a new trial on the ground, among others, that the action of the jury had been irregular; that the damages awarded were excessive; that the verdict was contrary to law; was not sustained by the evidence; and was contrary to the charge of the court.

This motion the court overruled, on condition that the plaintiff would execute -and deliver to the defendant a quitclaim deed to said Tennessee lands; and the plaintiff having thereupon executed and filed such deed, judgment was entered upon the verdict, to all which the defendant excepted. This judgment was subsequently affirmed by the district court, upon proceedings in error instituted in that court by the defendant below, who now seeks a reversal of both judgments, on the ground, among others, that the court of common pleas erred in overruling his motion to set aside the verdict, and grant him a new trial.

We think that the court of common pleas erred in overruling the motion of defendant below to set aside the verdict of the jury. The verdict shows upon its face that damages were assessed upon a basis unwarranted alike by the pleadings, the evidence, the charge of the court, and the law governing the case. The petition of the plaintiff below asked no rescission of any part of the contract on which his action was brought, but to recover damages for the breach of its stipulations, and for the false and fraudulent rej^resentations by which he had been induced to enter into it. The plaintiff still retained the deed, which the evideuce showed that he had received from the defendant for the Tennessee land, and did not propose by his pleadings to reconvey to the defendant the interest or estate, whether legal or equitable, which ivas vested in him by that conveyance. The effect of that conveyance, made under the circumstances shown by the evidence, was a question of law to be determined by the court, and not'by the jury. "We think the deed for the lands in question, made hy Hill in 1868, if defective and ineffectual to pass the legal title, bécause no grantee was named therein, must nevertheless be held valid in equity as a contract by which Hill Recame bound to convey the premises in fee-simple to his vendee or his assigns. The purchase-money having been fully paid, nothing but the naked legal title remained in Hill, of which equity would decree a conveyance to the purchaser, or his assigns. Bare v. Hatch, 3 Ohio, 527; Carr v. Williams, 10 Ohio, 305; Williams v. Sprigg, 6 Ohio St. 585. But, in this case, there is no defect in execution, or otherwise, apparent on the face of the conveyance ; and, speaking for myself, I have no doubt that, under the circumstances shown by the evidence, Hill, the grantor, would in equity be estopped to claim that the name of the grantee was not inserted in the conveyance prior to its execution. It is enough, however, to say, that the plaintiff below has become invested with the full equitable title to the land, and all the lights incident thereto. The court, upon the trial, accordingly instructed the jury substantially that the plaintiff could use the deed in question for the purpose of perfecting his legal title, and that they should “ take into consideration what that interest was worth.” The jury, however, disregarded this instruction, and found by their verdict “ that the plaintiff has no claim, title, or interest in the Tennessee land in this suit, and that said deed for the same is the property of the defendant.” And this finding evidently constituted part of the basis upon which the damages found by the verdict were assessed. It was not within the province of the jury to find that the plaintiff acquired no interest in the land under the deed which he had received and still held, or to decree a rescission of this branch of the contract, and reinvest the defendant with the title to the premises. The damages were evidently estimated on a mistaken hypothesis, and the verdict should for that reason have been set aside; and, in refusing to do so, and in entering judgment upon it, we think the court of common pleas erred.

It follows that the judgment of affirmance rendered by the district court was erroneous, and the judgments of both the courts below must be reversed, and the cause be remanded to the court of common please.

Judgment accordingly.