text:
    Kent v. Railroad Company.

      Railroad — Thousand mile passenger ticket — Conditions—Waiver.
    A railroad company sold and delivered a thousand mile ticket to a purchaser who paid in money the usual rate to the class of travelers to which he belonged, aud who secured it in ignorance of the following directions printed thereon: “ Conductors will not honor this ticket unless properly stamped and signed by the purchaser, and will strictly enforce the above conditions.” Instructions of the company to its ticket agents, and the uniform custom regulating the sale of such tickets required that the purchaser sign certain conditions printed thereon before delivery to them. The ticket in question was delivered to the purchaser and several times honored by the company’s conductors without requiring him to sign the conditions.

      Held: The company thereby waived such requirement, and its conductor was not justified in ejecting the purchaser from his car by reason of his refusal to sign the ticket and to pay the usual fare in money for his proposed passage.
    (Decided June 28, 1887.)
    Error to tbc Circuit Court of Knox County.

      Kent, the plaintiff in error, purchased of the ticket agent of the Baltimore & Ohio Railroad Company what is called a “ commercial traveler’s mileage ticket.” This ticket expressly showed upon its face that D. V. Kent had the right to travel one thousand miles on the Baltimore & Ohio Railroad upon the conditions named in the contract attached and made a part thereof.
    The contract which was referred to contained six different conditions which the purchaser was required to agree to to entitle. him to ride upon the ticket. At the end of these conditions was a place left for his signature, and immediately under the place for the signature was this direction: “ Conductors will not honor this ticket unless properly stamped and signed by the purchaser, and will strictly enforce the above conditions.”
    Kent purchased this ticket without signing it, and after-wards presented it to conductor Blair, who refused to honor it unless Kent would sign the contract to which reference has been made. This he refused to do and was ejected from the train. He again presented the ticket upon a subsequent occasion, and again refused to sign it, and was again ejected from the train, the conductor talcing up and retaining his ticket. For being put off the train upon these two occasions, this suit was brought.
    There were no objections on the part of the plaintiff to any part of- the contract which he was required to sign, except that contained in the sixth clause, which reads as follows:
    “ 6. That in consideration of the reduced rate at which this ticket is sold, and the privilege of using it on all regular passenger and such freight trains as are advertised to carry passengers, the purchaser assumes all risk of accidents, and expressly agrees that the company shall not be liable under any circumstances, whether of negligence or fraud on the part of its agents, or otherwise, for any personal injury, or for any loss of or injury to his or her property or baggage while using the ticket, and agrees that he or she will not consider the company as common carriers, or liable to him of her as such.”

      The plaintiff’s evidence tended to show that he had never seen one of these tickets and had no knowledge of the conditions ; that the agent did not ask him to sign the contract, nor did he call his attention to it, nor did he learn that the ticket contained such conditions until sometime afterward. When he called for the ticket, the agent informed him that the price was twenty-five dollars, but upon learning that plaintiff was traveling for Collier’s Publishing House, the agent told him that he was entitled to the ticket at shippers’ rates— twenty dollars. Nothing further was said of the conditions and considerations upon which the ticket was sold.
    The plaintiff used the ticket on several occasions without any objection being made to it because of the conditions not being signed. The conductor to whom it was first presented honored the ticket, entered the date when presented and detached the leaf containing the instructions, and forwarded it together with the coupons detached to the proper officer at Baltimore. After the ticket had thus been formally honored, and after it had been used on several occasions, the plaintiff presented it in payment of his fare over the Straitsville division from Newark to Junction City. The conductor refused to accept the ticket for the reason that plaintiff had not signed the conditions. The plaintiff then told the conductor that he had purchased the ticket without any knowledge of the conditions and without being required to sign them; that it had been honored on several occasions and that he was not willing to agree — especially to the sixth condition, releasing the company from all liability from fraud or negligence of its agents, and insisted that the conductor should accept the ticket for payment of his fare. This the conductor still refused to do, and threatened to eject the plaintiff unless he would sign the conditions or pay his fare in money. The plaintiff refused to do either, and was ejected from the train as before stated.
    The instructions to the ticket agents, and the theretofore invariable. custom, required that the purchasers of such tickets sign the conditions before the delivery to them of the tickets.
    The suit was tried in the court of common pleas, and a verdict returned in favor of Kenfcj the plaintiff.

      A bill of exceptions was taken, setting out all of the testimony and several specific charges which were asked by the defendant, and also the charge of the court to the jury. The charges as requested by the defendant, were not given.
    The judgment of the court of common pleas was reversed by the circuit court, for the reason that it was found that the common pleas erred in refusing to instruct the jury as* prayed for in the first and second charges requested by plaintiff in error.
    The single question presented is, whether the circuit court erred in reversing the judgment of the common pleas court upon the grounds stated in this record.
    The requests so refused are as follows:

      “ 1st. — The plaintiff sues upon a written and printed contract, being the ticket in evidence, and called a one thousand mile ticket, which was issued by defendant and delivered to plaintiff, by the terms of which the defendant agreed to allow the plaintiff to ride upon its cars 1000 miles on the roads named in the ticket, upon certain conditions, one of which was that he sign the contract himself at the point designated in the ticket; this was not a completed contract until it was so signed by the plaintiff, and he had no right to ride on defendant’s trains until he did so sign it, and if he failed so to do, and when requested by the conductor so to do, and his refusal to pay fare, and he was afterwards ejected from the train by the conductor for the reasons aforesaid without using more force than was necessary to so eject him, he cannot recover in this case.
    “ 2d. — The ticket shows upon its face that it was the duty of the conductor not to honor the ticket Until signed by the plaintiff, and the fact that one or more conductors of the defendant failed in their duty in this regard, will not amount to a waiver of the terms upon which the plaintiff was entitled to ride upon, or a change of the contract, unless the plaintiff shows that the conductors who allowed him to ride upon defendant’s trains without so signing said conditions, had authority to waive the conditions contained in the ticket.”

      Critehfield & Graham', for plaintiff in error.

      J. H. Collins, for defendant in error.
   Owen, C. J.

The instructions requested and refused ignored the proof which tended to show that Kent received the ticket from the company’s agent without actual knowledge of the conditions and directions written therein. They also presupposed that, by receiving the ticket, Kent acquiesced in all its terms and conditions, in spite of the fact (which the evidence tended to prove) that he may have been wholly ignorant of them.

It is well settled that the purchaser of a railroad ticket does not, by its mere acceptance, acquiesce in, and bind himself to, all the terms and conditions printed thereon in the absence of actual knowledge of them. Balt. & O. R. Co. v. Campbell, 36 Ohio St. 647; Davidson v. Graham, 2 Ohio St. 135; Jones v. Voorhes, 10 Ohio, 145; Rawson v. Penn. Railroad Co., 48 N. Y. 212; 2 Wharton on Evidence, sec. 1243; Brown v. Eastern R. Co., 11 Cush. 97; Malone v. Boston & W. R. Co., 12 Gray, 388; Camden & Amboy R. W. Co. v. Baldauf, 16 Pa. St. 67; Wade on Notice, sections 543, 552, 554, 555; Lawson on Carriers, sections 106, 107; Blossom v. Dodd, 43 N. Y. 264; Quimby v. Vanderbilt, 17 N. Y. 306.

There is nothing iri the circumstance that the ticket in the case at bar was sold at a rate reduced from the regular fare, to take it out of the rule. The rate was the usual and established one allowed to a numerous class of patrons comprising commercial travellers whose principals were shippers ' over the company’s road.

The contract between Kent and the railroad company was made when he bought his ticket, received and paid for it. Rawson v. Penn. R. Co., supra. Neither party could, after that, change its terms or impose new conditions upon its enforcement .without the consent of the other. According to the company’s instructions to agents, and by the uniform custom regulating the sale of such tickets, they were required to be signed before their delivery to the purchasers. The company saw fit, in the case at bar, to dispense with this requirement. It received the plaintiff’s money, delivered him the ticket, in his ignorance of any request that he sign it, honored it for several trips without first requiring him to sign its conditions. It thereby' waived this requirement, and its conductor was not justified, while it still retained plaintiff’s money, in ejecting him from its cars by reason of his failure to sign the ticket which had already gone into full effect between the parties, and his failure to pay the usual fare in money for a passage which was already paid for.

The conclusion we have reached relieves us of a consideration of the question arising upon the claim of counsel that the sixth condition of this ticket was against public policy, and would have been void if signed.

The trial court was right in refusing the instructions requested.

The judgment of. the circuit court is reversed and that of the court of common pleas affirmed.


source: Caselaw Access Project

author: Minshalu, J.

license: Public Domain

text:
    Case Manufacturing Co. v. Garven.

      Conditional sale — Fixtures—Mortgage—Notice.
    1. Where, prior to the act of May 4,1885, regulating, among other things, “ conditional sales ” of personal property (82 Ohio L. 238), A. sold and delivered to B. the machinery, other than the motive power, used for the manufacture of flour by the roller-system, and stipulated that the title to the property should not pass until paid for; and thereupon the machines were, with the consent of A., and according to the understanding at the time they were sold, placed by B. in his mill, and for the purpose of facilitating their use, were fastened to the floor by bolts, but could readily be removed without injury to the building or the machinery itself, and placed in another building: Held, that the machines were personalty, although so fastened to the building, and that the agreement was valid as against a subsequent mortgagee of the realty without notice of the agreement.
    2. The machinery of a manufactory that supplies the motive poWer, as the engine, boiler and their usual attachments, as contradistinguished from that propelled by it, where permanently annexed to foundations resting upon the freehold, is generally held to be a fixture, though susceptible of being removed without any material injury to the same or the freehold ; and, whilst by the agreement of the parties, the property may be made to preserve the character of personalty, yet, when it is so attached, that, but for the agreement, it would be a fixture, such agreement will be of no avail against a subsequent mortgagee of the realty without notice of it; nor will the filing of a mortgage upon it as chattel property, duly executed and delivered as such, of itself constitute such notice.
    (Decided June 28, 1887.)
    Error to the Circuit Court of Harrison County.
    The questions in this proceeding arise between the plaintiff in error and a cross-petitioner, The Mansfield Machine Works on the one hand, and Hogue & Donaldson and The Farmers’ and Mechanics’ National Bank on the other. All were parties to a suit commenced in the common pleas by the assignee of Ross J. Patton, an insolvent debtor, for the purpose of requiring them to interplead, and settle in that way their respective claims to the fund in his hands, all the property assigned having been sold and converted into money. Upon the trial the court, at the request of the parties, made a finding of facts. From this it appears, that Ross J. Patton, being the owner of a certain lot upon which he had constructed a building to be used as a flouring mill, on April 30, 1883, entered into an agreement with The Case Manufacturing Co., of Columbus, Ohio, by which it was to furnish certain machinery to be used in said mill, the title to which ■ was, by the agreement, to remain in the company until the machines were fully paid for, on which there was due and unpaid at the time of the trial $3,133.45. As to the manner in which the machines had been constructed and fastened to the building for use, the court found as follows:

      “ The roller mills and the large machines built of wood, for convenience of putting up and taking down, were made in pieces or sections, and when put together and fastened to their places in the mill and attached thereto, could be easily detached and taken apart, removed and set up again in another building, without material injury to the machines themselves or to the building from which they were removed.
    “ And the other machines, although not made in pieces or sections, to-wit: The purifiers, scalping-chests, reels, etc., when fastened to their places in the mill and attached thereto, could be easily detached, removed and set up again m another building, without material injury to the machines themselves or to the building from which they were removed.
    “ The usual way of fastening them and of fixing them to the building and premises where» used, was by iron bolts passing through the floors of the building and then up. through the frames of the machines and secured by nuts, except that the bulirs were supported on upright iron frames called ‘ hursts, ’ which rested on brick foundations imbedded in the ground floor of said building. The ‘hursts’ extended up through openings in the floor, left for that purpose, and the buhrs rested on the top of the same. None of said machines were to be or were fastened to the walls, foundation or superstructure of said building. One machine was sufficient weight to be kept in its place without any fastening to the floor by bolts or otherwise, its own weight being sufficient for that purpose. ”
    As to the claim of the Mansfield Machine Works, the court found that on May 10, 1883, the company entered into an agreement with Patton to furnish the motive power of, his mill, a steam engine and boiler with the usual attachments, at the agreed price of $1,650, a part, $450, to be paid “when the engine should be started, ” the residue to be evidenced by notes of $300 each at six months intervals, and be secured by a chattel mortgage on the engine, boiler and attachments. It. was also stipulated that the title to no part of the property should pass until the notes with the interest should be paid.
    The engine, boiler, etc., were furnished according to the agreement, and were placed in the building and adjusted and fastened by a “ hand ” furnished by the company itself; and as to the manner in which this was done, the court fouud:
    “ That said engine and boiler were taken into said building through an opening left in its foundation wall for that purpose, and said opening was afterward weather-boarded over to close it up, and the removal of such weather-boarding, which could easily be done and with trifling expense, would be the only injury that said building would necessai’ily sustain in taking out said engine and boiler. The boiler was encased by two brick walls on each side, and each about six feet high, and was suspended and secured between the same, and held in position by suitable appliances adapted to that purpose. The engine rested on and was fastened to a stone foundation about 2J feet high above the ground, in which it was imbedded, by bolts passing through the iron plate of said engine and into said stone foundation. Neither the stone foundation on which the engine rested, nor the walls encasing the boiler were attached to, or formed any part of the foundation or superstructure walls of said building; said engine and boiler were connected in the usual way and manner of making such connection, and also with a main shaft, from and by which all the machinery of said mill was driven. Said engine and boiler, with all their attachments, fixtures, shaftings, etc., could be easily taken down and apart, and removed from said building, without any material injury to said engine, boiler and all their said attachments, fixtures, etc., and put into another building suitable for the same, or without any other inconvience or damage to said building other than the removal of the weather-boarding as aforesaid. ”
    The stipulation as to the title was carried into the notes; and, on August 10, 1883, Patton executed and delivered the chattel mortgage as he had agreed, which was duly filed in the proper office on the 31st of the same month, and afterward duly refiled at the proper times for keeping a chattel mortgage in force; and at the time of the trial there was due the Machine Works on the purchase money, $663.80 and interest.
    And the court further found, that the machinery furnished by each of these parties, “were designed and intended for said mill, and were adapted to the same and said milling business, and intended by said Patton when placed in said building, to be permanent and to become a part and parcel of his said premises.” But, it is also found, that it was not the intention of either party furnishing it, that the part furnished by it, should become a part of the realty and the property of Patton until fully paid for.
    Subsequently, Patton sold and conveyed to one Collins an undivided interest in the property; and, on January 29, 1884, they executed to Hogue & Donaldson a real estate mortgage, including the mill property, to secure the payment of certain loans amounting to $4,000. It was recorded February 21, 1884.
    In December following a like mortgage was executed in favor of the Farmers’ & Mechanics’ National Bank of Cadiz, Ohio, to secure a loan of $600. It was taken to indemnify a surety on the loan, and was recorded at once. As to each of these mortgages it is found, that it was taken in good faith by the mortgagee, and without any notice of the agreement with the Manufacturing Company or the Machine Works.
    From other findings it appears, that if, upon the facts, the claim of the Manufacturing Company is prior in right, as it is in time, to either that of Hogue & Donaldson or that of the bank, it should be paid from the funds in the hands of the assignee before either of those claims; and that the claim of the Mansfield Machine Works should next be paid, if found to be prior in right, as it is in time, to the mortgagees of the' realty.
    The judgment of the court was in favor of the priority of mortgagees of the realty, and, upon error, was affirmed by the circuit court.

      David K. Watson, for Case Manufacturing Company.
    The contract between the Case Manufacturing Company and Patton amounted to a conditional sale, and the right of the vendor to retake the property, in such a case, is clearly sustained in this state, even as against innocent purchasers of the property from the vendee. Call v. Seymour, 40 Ohio St. 670; Sage v. Sleutz, 23 Ohio St. 1; Sanders v. Keber, 28 Ohio St. 630.
    The machinery, did not pass under the mortgage because it did not cease to be personal property, and this independent of the agreement. Annexations to the freehold, for the purpose of trade and manufacture are of a personal character. The machinery was not attached to the mill in such a manner as to bring the articles within the denomination of fixtures. Hunt v. Mullanphy, 1 Mo. 508; Vanderpoel v. Van Allen, 10 Barb. 157; Keeler v. Keeler, 31 N. J. Eq. 181; Hutchinson v. Kay, 23 Beav. 413; McKim v. Mason, 3 Md. Ch. 187: 1 Schoul. Per. Prop. 155; Hill v. Wentworth, 28 Vt. 428; Sweetzer v. Jones, 35 Vt. 317; Fullam v. Stearns, 30 Vt. 443; Gale v. Ward, 14 Mass. 352; Hubbell v. East Cambridge Sav. Bank, 132 Mass. 447; Blancke v. Rogers, 26 N. J. Eq. 563; Teaff v. Hewitt, 1 Ohio St. 511; Herman on Executions, 171.
    An article attached to the land may be a fixture or a chattel according to the special agreement of the parties. Under the agreement here the machinery could not become fixtures until the contract of purchase had been complied with. Eaves v. Estes, 10 Kan. 314; Cochran v. Flint, 57 N. H. 514; McKim v. Mason, 3 Md. Ch. 186; Fortman v. Goepper, 14 Ohio St. 566; Marquette Man. Co. v. Jeffery, 49 Mich. 283; Smith v. Lozo, 42 Mich. 6; Goddard v. Gould, 14 Barb. 662; Tifft v. Horton, 53 N. Y. 377; Sinker v. Comparet, 62 Tex. 470.

      L>. A. Hollingsworth, for the Mansfield Machine 'Works.
    Conditional sales of chattels are recognized as valid by the supreme court of the United States. Myer v. Car Company, 102 U. S. 1; Fosdick v. Schall, 99 U. S. 235; Fosdick v. Car Company, 99 U. S. 356; Huidekoper v. Locomotive Works, 99 U. S. 258. The court, .in these cases, fully sustains the doctrine that, as against a previous real estate mortgage, a conditional sale of a chattel which, being affixed to the real estate, becomes a part thereof, is valid and binding, and such chattel may be reclaimed unless the price is paid.
    The validity of conditional sales of personal property is no longer a subject of controversy in Ohio. They are good not only between the parties but as against subsequent bona fide purchasers. Kanaga v. Taylor, 7 Ohio St. 134; Sage v. Sleutz, 23 Ohio St. 1; Sanders v. Keber, 28 Ohio St. 630.

      The same rule obtains in other states. Bailey v. Harris, 8 Iowa, 331; Baker v. Hall, 15 Iowa, 277; Knowlton v. Redenbaugh, 40 Iowa, 114; Luey v. Bundy, 9 N. H. 298; Herring v. Willard, 2 Sandf. 418; Barrett v. Pritchard, 2 Pick. 512; Buckmaster v. Smith, 22 Vt. 203; Sawyer v. Fisher, 32 Me. 28; Russell v. Richards, 10 Me. 429; Mott v. Palmer, 1 N. Y. 564; Tifft v. Horton, 53 N. Y. 377; Goddard v. Gould, 14 Barb. 662; Morrison v. Berry, 42 Mich. 389; Ferris v. Quimby, 41 Mich. 202; Strokoe v. Upton, 40 Mich. 581; Robertson v. Corsett, 39 Mich. 777.
    A personal chattel cannot be converted into real estate without the consent of the owners, and when attached to the real estate its further character may be controlled by the agreement of the parties. The execution of a chattel mortgage on such fixtures is evidence of an agreement that it shall be and remain personal property. Jones Chat. Mort., sec. 125 et seq.; Teaff v. Hewitt, 1 Ohio St. 511; Fortman v. Goepper, 14 Ohio St. 558; Simons v. Pierce, 16 Ohio St. 215; Tyler on Fixtures, 129.
    The record of a chattel mortgage is as effectual as an actual notice to protect the rights of the mortgagee. Sowden v. Craig, 26 Iowa, 156; Hine v. Morris, 3 Week. L. Bull. 515.

      W. G. Shohoell and J. M. Estep, for Hogue & Donaldson.
    The facts show every element of a complete fixture in real estate: (1) Actual annexation to the realty; (2) application to the use and purpose of the building; (3) the intention to make a permanent accession to the freehold.
    The mill was designed and completed as a real' estate flouring mill — not a portable one — and after it was thus completed’ and in operation, Hogue & Donaldson, in good faith and without» notice, took a mortgage upon. it as real' estate. We claim that beyond question their mortgage is á valid lien and the first lien on the entire mill as a mill.

      1. Leaving out of consideration, for the present, the .special agreements, it is- quite clear that the machinery became fixtures. 1 Jones Mort., secs. 428, 435; 1 Wash. Real Prop. 9, 21, 23, 24; 2 Smith Lead. Cas. (3d ed.) 250, 251, 259, 261;
      Teaff v. Hewitt, 1 Ohio St. 543; Brennan v. Whitaker, 15 Ohio St. 446; Potter v. Cromwell, 40 N. Y. 287; Voorhees v. McGinnis, 48 N. Y. 278; McRea v. Central National Bank, 66 N. Y. 489; Winslow v. Merchants’ Ins. Co., 4 Met. 306; Tyler on Fixturss, 561, 589, 591, 603; Allison v. McCune, 15 Ohio, 726, 732; Fortman v. Goepper, 14 Ohio St. 565; Davenport v. Shants, 43 Vt. 546; Fryatt v. Sullivan Company, 5 Hill, 116; Union Bank v. Emerson, 15 Mass. 159; Green v. Phillips, 26 Gratt. 752.
    The mode of annexation alone, or the circumstance that the machinery might be removed without much injury to the building is not now controlling. Adaptability and fitness for the thing as a complete whole, has more to do with it. Brennan v. Whitaker, 15 Ohio St. 452; 1 Wash. Real Prop. 21; Voorhees v. McGinnis, 48 N. Y. 278; Teaff v. Hewitt, 1 Ohio St. 528; 1 Jones Mort., sec. 429.
    2. That these special agreements or conditional sales were binding, as between the parties, prior to the act of May 14, 1885 (82 Ohio L. 238), was, no doubt, well settled. Call v. Seymour, 40 Ohio St. 670; Sanders v. Keber, 28 Ohio St. 630.
    '3. But the further material question is, were these special agreements binding,' not only upon the parties, but also upon Hogue & Donaldson, bona fide purchasers without notice?
    “ Actual severance before the making of the real estate mortgage, or notice of a binding agreement to sever, is required in such case, to deprive the mortgagee of the freehold of the right to fixtures.” Brennan v. Whitaker, 15 Ohio St. 445, 454. We consider this case decisive of every question made in the case at bar.
    The controlling question is one of good faith and want of notice. Fortman v. Goepper, 14 Ohio St. 565; Fryatt v. Sullivan Company, 5 Hill, 116; Hunt v. Bay State Iron Co., 97 Mass. 279; Pierce v. George, 108 Mass. 78; Southbridge Sav. Bank v. Exeter Machine Works, 127 Mass. 542; Davenport v. Shants, 43 Vt. 546; 1 Wash. Real Prop. 24; 1 Schoul. Per. Prop. sec. 124, and note 2; Bringholf v. Munzenmaier, 20 Iowa, 513; Frankland v. Moulton, 5 Wis. 1; Watertown Steam Engine Co. v. Davis, 5 Hous. (Del.) 192; Ridgeway

      Stove Co. v. Way, 141 Mass. 557; Jones Chat. Mort. secs. 127, 128, 130, 134, 135; Coman v. Lakey, 80 N. Y. 345; Potter v. Cromwell, 40 N. Y. 287; Voorhees v. McGinnis, 48 N. Y. 278; 2 Smith’s Lead. Cas. 259.
    Mortgagees in good faith are bona fide purchasers. Roxborough v. Messick, 6 Ohio St. 448; Anketel v. Converse, 17 Ohio St. 11; Brennan v. Whitaker, 15 Ohio St. 452; 1 Wash. Real. Prop. 9—21, 23, 24; 2 Smith’s Lead. Cas. 250, 251, 259—261; Teaff v. Hewitt, 1 Ohio St. 543; Curtis v. Leavitt, 15 N. Y. 13, 179; Voorhees v. McGinnis, 48 N. Y. 278; McRea v. Central Nat. Bank, 66 N. Y. 489; Winslow v. Merchants’ Ins. Co. 4 Met. 306; Cary v. White, 52 N. Y. 138; 2 Lead. Cas. Eq. 32, 82, 84, 85; 2 Am. Lead. Cas. 225; Smith v. Worman, 19 Ohio St. 145; Erwin v. Shaffer, 9 Ohio St. 43; City of Cleveland v. State Bank of Ohio, 16 Ohio St. 236, 269; Holzworth v. Koch, 26 Ohio St. 33; Brownell v. Harsh, 29 Ohio St. 631; Pitts v. Foglesong, 37 Ohio St. 676.
    A chattel mortgage, though filed, is not constructive notice to a subsequent bona fide mortgagee of real estate without notice. Brennan v. Whitaker, 15 Ohio St. 446, 453; 1 Schoul. Per. Prop. sec. 124; Bringholf v. Munzenmaier, 20 Iowa, 513.
    It is a very familiar principle that “ where one of two innocent persons must suffer from misplaced confidence in a third person, the one of the two who confided in such third person the means of practicing the fraud, will be selected to bear the loss. ” The Case Manufacturing Company and The Mansfield Machine Works themselves fastened the machinery in the mill in the usual manner of doing so, and jrrecisely as if it had been paid for in cash, made it a perfect system and every piece necessary to constitute a complete mill. They then left the vendees in possession of it as the apparent absolute and unconditional owners of it, and went off with their secret agreements in their pockets. See Bringholf v. Munzenmaier, 20 Iowa, 513.

      E. Cunningham, for Farmers’ and Merchants’ National Bank.
    Was the machinery in question so attached as to become a part of the freehold ?

      Articles placed in a mill to carry out the obvious purposes for which it was created are generally a part of the realty notwithstanding the fact they could be removed and used elsewhere. Parsons v. Copeland, 38 Me. 537; Jones Mort. sec. 429; Winslow v. Merchants’ Insurance Co., 4 Met. 306; Pierce v. George, 108 Mass. 78; s. c. 11 Am. Rep. 310; Teaff v. Hewitt, 1 Ohio St. 511; Brennan v. Whitaker, 15 Ohio St. 446.
    All the requisites necessary to constitute the machinery a fixture and a part of the freehold are present in this case, to wit: That it was actually attached; that it was adapted to the purpose for which it was placed in said building, and that the owner intended it to be permanent and a part of the premises, and not a mere temporary attachment.
    Actual severance before the making of the real estate mortgage or notice of a binding agreement to sever is required to deprive the mortgagee of the freehold of the right to fixtures. Fortman v. Goepper, 14 Ohio St. 565; Jones Chat. Mort. secs. 134, 135.
    The mortgage to the bank, if it should be held that it was given in security of an antecedent debt, is not, on that account, void. Cooley v. Hobart, 8 Iowa, 358. Nor would it make any difference that it was executed by one of the members of a partnership to secure a debt of the firm. Jones Mort. sec. 611. The real estate, while it was in the name of Patton, was really partnership property. The real estate mortgage in Brennan v. Whitaker, 15 Ohio St. 446, was given for an antecedent debt, and is, in all respects, on all fours with the case at bar.
   Minshalu, J.

By the agreement of the parties the title to the property out of which the controversy arises in this case, was, in both instances, to remain in the vendor, until it was paid for by the purchaser. The validity of such agreements as to personalty, even as against innocent purchasers, was recognized as the law of this state at the time they were made, (Sage v. Sleutz, 23 Ohio St. 1; Sanders v. Keber, 28 Ohio St. 630; Call v. Seymour, 40 Ohio St. 670); it has been changed by statute (82 Ohio L. 238),. but the rights of the parties in this case must be determined by the law as it existed at the time their contracts were made.

The property sold and transferred by The Case Manufacturing Company under its contract with Patton embraced the machinery employed in the manufacture of flour by the roller-system; that furnished by The Mansfield Machine Works supplied the motive power of the mill, and consisted of an engine and boiler with the usual attachments.

For the purpose of keeping them in place when in use, some of the machines were fastened to the floor with bolts, others were held in place by their own weight, and, as found by the court “all could easily have been detached, removed and set up in another building without material injury to the machines themselves or to the building.” Of the motive power, the boiler was inclosed by brick walls between which it was suspended and held in place by suitable appliances in the usual way; the engine rested upon a stone foundation imbedded in the ground, to which it was fastened by bolts passing through an iron plate — part of the engine — -into the foundation; and, as found, all could have been removed without any material injury to the machinery, or to the building, other than the removal of some weather-boarding inclosing an opening in the foundation wall through which it had been imtroduced.

All the machinery furnished by these two parties under their agreements with the mill-owner is readily distinguishable into two classes, namely, (1), that which supplied the motive power of the mill, and (2), that which was propelled by it. It is a distinction generally recognized by those who run and operate mills as well as by the courts, being founded in the general character of the machinery of each class, and the mode in which it is usually placed upon the premises for use.

The machinery furnishing the motive power is generally more closely annexed to the freehold, and of a more permanent nature, as the power furnished by it may be adapted to the propulsion of the machinery of a variety of mills without any substantial change in the motive power itself or in the building other than by substituting one kind of machinery for another; whilst the machinery that is propelled, has more of the general character of personalty, is not as a rule so closely annexed to the freehold, and may be removed, and frequently is, from one mill to another, as any other article of personalty; and is more properly accessory to the business” carried on upon the realty than to the realty itself. Goepper v. Fortman, 14 Ohio St. 567.

PIcnce, it has generally been held in this country that articles of machinery used in a factory for manufacturing purposes, only attached to the building to keep them steady in their places, so that they may be more serviceable when in use, and that may be removed without any essential injury to the freehold or the articles themselves, are personal property and do not pass by a conveyance or mortgage of the freehold. Ewell Fix. 294. On the other hand, steam engines and boilers with their appliances, that supply the motive power of machinery, and, for purpose of use, are usually stably attached to the realty, pass by a conveyance or mortgage of the land. 1 Sch. Per. Prop. 155; Ewell Fix. 290; 1 Wash. R. P. 8.

In Teaff v. Hewitt, 1 Ohio St. 511, this distinction in the charter of the property and in the mode of its use and annexation to the realty, was taken and applied to the facts of that case. It is there said that <£ the machinery and implements in a manufacturing establishment, although useful and even essential to the business carried on, which are not permanently affixed to the ground or the structure of the building, and which can easily be removed without material injury to the building or articles themselves, and their places supplied by other articles of a similar kind, are not. fixtures, but personal property. But that portion of the machinery in such an establishment, which is firmly affixed to the earth orto the structure of the building, and which from its nature, mode of attachment, use, and the relative situation of the. party placing it there, was plainly intended to be permanent, is parcel of the freehold.” So it was there held that the carding machines of a woolen factory, attached to the building by cleats to coniine them to their proper places, and subject to removal whenever convenience or business required, were not fixtures, but chattels; whilst the steam enginfe and boiler, used to supply the motive power, permanently fixed upon a foundation laid in the earth, were regarded as realty.

The difficulty of prescribing a rule that may be applied to cases in general* has been confessed both by courts and writers upon the subject; various tests have been adopted, none of which have been applied with anything like uniformity. It may however, be admitted that the distinction .between the motive power of a factory and the machines driven by it, is somewhat arbitrary; still it is one based uptin a physical difference, easily perceived, if not dictated by any well defined principle, and is no more illogical than many distinctions to be found in other branches of the law. That which divides all property into real and personal, is quite as wanting in anything like scientific classification; but, from its general recognition wherever the common law prevails, is found to bo very convenient in practice ; and it is such considerations that have always more or less influenced the adoption of definite rules of property.

It remains to be considered whether the result, as to either of these claims, indicated by the discussion, is to be varied by the finding of the court that all the machinery furnished by either of said parties were designed and intended for said mill, and were adapted to the same and to the said milling business, and intended by Patton when placed in said building, to be permanent and to become a part and parcel of said premises.” But that it was not the intention of either of them “ that said machinery so furnished by them, respectively, should become a part and parcel of said real estate, and become the property of the said Patton, and remain permanently attached to said mill unless they were fully paid for.”

There is no question but that the character of things which would otherwise be fixtures, may be changed to that of personalty by the agreement of the parties, and conversoly, so as to be binding upon them. And the stipulation of the vendor in each of these cases, that the title to the property furnished by it should not pass until it had been paid for by the purchaser, precludes the idea that either of them intended that the machinery furnished by it, should become a part of the realty until payment had been made, as, to impute a different intention, would be to suppose that neither intended the benefit of a stipulation exacted with the greatest care in its own behalf. In such case the intention of the purchaser must be regarded as subordinate to the prior intention of the vendor, expressed in the agreement by which he has possession of the property. Tifft v. Horton, 53 N. Y. 377.

But the question remains, as to the Mansfield Machine Works whether it can have the benefit of its stipulation, that the title to the property furnished by it should not pass, nor, by inference,' become a part of the realty, until paid for. Here the question is not whether the character of the property may bo changed by the agreement of the parties, as between themselves; of this there is no doubt; but, when the property is such that from the manner of the annexation it would, but for the agreement, ordinarily be regarded as a fixture, whether it can be made by the agreement of the parties to preserve the character of personalty so as to avail against innocent purchasers without notice ? This must, we think, upon principle and authority, be answered in the negative. The point, though not directly presented by the record, was considered in Fortman v. Goepper, 14 Ohio St. 558, where the doctrine of Ford v. Cobb, 20 N. Y. 344, holding the affirmative, was disapproved. It was, however, directly presented in the subsequent case of Brennan v. Whitaker, 15 Ohio St. 446, upon a state of case very similar to that presented by the record before us: B. sold an engine and boiler to F., and, after they had been placed by himself upon the premises of F. as the motive power of his saw-mill, took a chattel mortgage thereon to secure the purchase-money; the property was described in the mortgage as the steam engine and boiler sold to, and then in the possession of, F., and designed to be used in his saw-mill; ” and it was stipulated in the condition, that in case payment was not made when the money became duo, the vendor might enter upon the premises of the purchaser and retake the property wherever it might be found, whether the same should be áttached to the freehold and in law a part of the realty or not,” and remove the same. But it was held that neither the mortgage, nor the stipulation in it, was available as against a subsequent mortgagee of the freehold without actual notice thereof. And White, J., again disapproving the case of Ford v. Cobb, said, it seems to us to be the sounder rule, and more in accordance with principle, and the policy of our recording laws, to require actual severance, or notice of a binding agreement to sever, to deprive the purchaser of the right to fixtures or appurtenances to the freehold.”

The fact that the Machine Works took a chattel mortgage upon the engine and boiler, in addition to the stipulation as to the title, does not seem to help its case. It caused the property to be annexed to the realty of the purchaser in such manner, that, but for the agreement, it would become a part of it. The subsequent mortgagees of the realty had no notice of the agreement or of the chattel mortgage. And to use the language of White, J., in the case above cited, it then devolved upon the vendor, if it sought to change the legal character of the property, and create incumbrances upon it, either to pursue the mode prescribed by law for incumbering the kind of estate to which it appeared to the world to belong, and for giving notice of such incumbrance, or, otherwise, take the risk of its loss in case it should be sold and conveyed as a part of the real estate to a purchaser without notice.”

Nor, so far as we see, is there any want of consistency in the ruling as to the two cases. The machinery furnished by The Case Manufacturing Co., did not, from the manner of its use and mode of annexation, become a part of the realty. The effect of the agreement was, not to preserve its character of personalty — it would have retained this character without the agreement — but to prevent the title passing from the vendor to the purchaser until the property had been paid for; and if there is any apparent want of justice in giving effect to the agreement as against a purchaser without notice, it is in the rule itself, and not in the application of it. Not so however, as to the machinery that constituted the motive power; this, as we have shown, was so annexed, that, but for the agreement, it would have been a fixture, and so a part of the realty • and the agreement could not take effect without that being regarded as personalty which would otherwise be realty; and it is giving effect to such agreement as against innocent purchasers, that, as said in the case just referred to, is regarded as against the policy of our registration laws.

Judgment modified so as to give priority to The Case Manufacturing Company over the mortgages of the realty in the distribution of the fund, and affirmed as to all else.


author: Williams, J.

text:
    State ex rel. Baumgardner v. Stockley.

      Corporations — Election of directors — Cumulative voting.

    Section ‘3245 of the Revised ’Statutes, which provides that directors of corporations “ shall be chosen, by ballot, by the stockholders who attend for that purpose, either .in person or by lawful proxies; each share shall entitle the owner to as many votes as there are directors to be elected, and a plurality of votes shall be necessary for a choice,” does not confer upon stockholders the right of cumulative voting at the election of directors held thereunder.
    (Decided Oct. 4, 1887.)
    Quo Warranto.
    The Toledo Electric Company is an Ohio corporation, having by the laws of its organization a board of nine directors, a president, vice president, secretary, treasurer, and manager.
    At the regular meeting for the election of directors in January, 1887, Leander S. Baumgardner, Frederick B. Dodge, James S. Rodgers, John J. Barber, Wm. P. Heston, John S. Barker and Wm. F. Swift were elected seven of the directors; and the relators claim that George G. Hadley and Alexander W. Scott, were chosen as the other two. Five of these, to-wit: Baumgardner, Dodge, Rodgers, Hadley and Scott, met and organized, by choosing Baumgardner president, Hadley vice president, and Dodge secretary and treasurer.

      The defendants George W. Stockley and James M. Brown, claiming that they had been elected directors, and that neither Hadley nor Scott had been, and acting with the defendants, Barber, Barker and Heston, effected another organization by choosing Brown president, Barber vice president and treasurer, and Heston secretary and manager.
    This latter -organization is in possession of the offices, and has control of the corporation; and the purpose of this suit is to oust the defendants and induct the relators.
    It is admitted by the defendants, that if Hadley, and Scott were legally elected directors, the relators are entitled to the relief demanded; and on the other hand, the relators concede that unless Hadley and Scott were so elected, the relief prayed for -should be denied.
    The case is submitted upon demurrer to the answer, and whether, under the facts thus admitted, Hadley and Scott were legally elected, depends upon the right of the stockholders to cumulate their votes at the election. If they might lawfully do so, Hadley and Scott were elected; if not, Stockley and Bz’own were duly elected.

      Doyle & Seott, for relators.

      S. E. Williamson and Lee & Brown, for defendants.
   Williams, J.

The counsel for the relators properly state the question-involved in this case, as follows:

“ Does section 3245 of the Revised Statutes, authorize stockholders of a private corporation, to cumulate their votes in the election of diz-ectors of the coz-poration ? ”

The answer to this question, is the decision of the case. As is said by the defendant’s counsel, “ If cumulative voting is legal, judgment of ouster should pass; otherwise not.”

Section 3245 provides that, “at the time and place appointed, directors shall be chosen by ballot, by the stockholders who attend for that purpose, either in person, or by lawful proxies; each share shall entitle the owner to as many votes as there are directors to be elected, and a plurality of votes shall be necessary for a choice.”

The precise claim of the relators is, that inasmuch as the section imposes no restriction upon the method of voting, the stockholder may cast the votes to which his shares of stock entitle him, in any mode he chooses. They say, we can see nothing in the language of the statute except a direct authority to cast the votes; and this authority is without limitation as to how they shall be divided among the directors to be elected. The stockholder may therefore cast them as he will.” If this position be sound, then it would in no instance need any statutory -authority to confer the right of cumulative voting; but the right would exist, whatever number of votes each share might entitle the owner to cast, unless prohibited. Such we apprehend is not the rule. On the contrary, in .the absence of express authority, the right cannot be maintained, nor its exercise permitted. The rule is thus stated by Morawetz on Private Corporations, section 476a.

“ It seems that, at common law, each shareholder is entitled to cast but one vote, irrespective of the number of shares which he holds; but there are good reasons for holding that this rule has no application to ordinary joint stock business corporations at the present day. The custom of giving the shareholders in such companies a vote for every share, has become so well established, that it is fair to imply an intention to follow this custom in the absence of any indication to the contrary. It is generally provided by statute, or by express provision in the articles of association of a corporation, that shareholders shall bo entitled to a vote on account of each share. The right of cumulative voting at the election of a board of directors, docs not exist, unless conferred by express provision; each shareholder can cast but one vote on each share for each member of the board, whether he votes for one or all of them.”

Accordingly it will be found that such express provision has been employed, in those instances where the common law rule has been changed and cumulative voting established.

In the constitution of California, provision is made for cumulative voting in the following explicit terms:

“ In all elections for directors or managers of corporations, every stockholder shall have the right to vote in person or by proxy, the number of shares owned by him, for as many persons as there are directors or managers to be elected, or to cumulate said shares, and give one candidate as many votes as the number of directors multiplied by the number of his shares of stock shall equal, or to distribute them on the same principle among as many candidates as he shall think fit, and that such directors or managers shall not be elected in any other manner.” Const. 1879, section 12, art. 12.

So the constitution of Illinois provides in express terms that:

The stockholder is allowed “in all elections for directors or managers * * * * to cumulate shares and give one candidate as many votes as the number of directors multiplied by the number of his shares of stock shall equal, or to distribute them on the same principle among as many candidates as he shall see fit.” Const. 1870, section 3, art. 11.

In art. 16, sec. 4, of the Constitution of Pennsylvania, 1873, this language is employed: “ In all elections for directors or managers of a corporation, each member or shareholder may cast the whole number of his votes for one candidate, or distribute them upon two or more candidates as he may prefer.”

In the Constitution of Missouri, of 1875, art. 12, section 6; in the Constitution of Nebraska, in the same year, section 5, of art. 11; and also in the Constitution of 1872, art. 11, section 4, of West Virginia, are found provisions equally direct, plain and clear.

It is one thing to prescribe by statute the number of votes that may be cast for each share of stock. It is another, to authorize stockholders to cumulate their votes. The statute under consideration clearly defines the voting capacity of the shares, by prescribing the number of votes to which they entitle their owners in the election of directors, authorizes voting by lawful proxies, and declares the number of votes necessary to a choice. It does nothing more. Full effect is given to the statute, when, for each share of stock, the owner is allowed one vote for each director to be elected. He thus casts as many votes for each share as there are directors to be elected. This is a literal and substantial exercise of the right conferred by the statute, and is in accordance with the recognized mode of voting at the time of the enactment of the statute. If the' legislature had intended to abrogate this mode, and establish the cumulative system of voting, it easily could, and doubtless would, have done so in plain and unambiguous language. It is clear that the statute does not in terms, or by apt language, confer upon the stockholders the right of cumulative voting at the election of directors, and the absence of express provision to the contrary is not equivalent to the grant. The law therefore in this regard remains unchanged. This conclusion gathers force from the circumstance that section 3245 is a part of the revision and consolidation of the statutes under the act of March 27, 1875 (72 Ohio L. 87), which gave the commission power only “ to revise and consolidate the general statute laws of the state which may be in force at the time such commissioners shall make their report.”

The statute then in force relating to the election of directors of corporations, was section 26 of the act of May 1, 1852, to provide for the creation and regulation of incorporated companies. 1 S. & C. p. 276. So much of it as is material, is as follows: At the time and jDlace appointed, directors shall be chosen by ballot, by the stockholders who attend for that purpose, either in person or by lawful proxies; each share shall entitle the owner to one vote, and a plurality of votes shall be necessary for a choice.”

By the construction this statute received while in force, and as practically applied, each share entitled the owner to one vote for each director to be elected; and thus, in the election of directors, each share gave the owner as many votes as there were directors to be elected; but it is not contended that under it, the right of cumulative voting existed.

It is well settled by the repeated adjudications of this court that, Where all the general statutes of a state are revised and consolidated, there is a strong presumption that the same construction, which the statute received before revision, should be applied to the enactment in its revised form, although the language may have been changed; and the same construction will prevail as before revision, unless the language of the new act plainly requires a change of construction to conform to the manifest intent of the legislature.” State ex rel. v. The Commissioners of Shelby County, 36 Ohio St. 326; State v. Vanderbilt, 37 Ohio St. 640; Allen v. Russell, 39 Ohio St. 337; Heck v. State, 44 Ohio St. 536.

In view of this rule of construction, it may oe fairly inferred that it was intended by the changed phraseology of section 3245, to conform the language to the interpretation given the statute for which it was substituted, and not designed to incorporate into the section a new, and theretofore unauthorized mode of voting. At least the language of the new section docs not plainly require the radical change of construction contended for.

Demurrer to answer overruled, and judgment for defendants.


author: Owen, C. J.

text:
    Railway Company v. Gardner.

      Damages — Railroads—Municipal corporations — Track in street — Evidence—Revised Statutes, sec. 3282.
    1. In an action by the owner of property abutting on a public street of a municipal corporation, which, is occupied by a railroad track, under an agreement with the municipal authorities, by virtue of section 3283 of the Revised Statutes, to recover against the railroad company for injury to such property by the laying of the track, it is competent to take into consideration evidence of substantial injury and loss to the property, (not common to the community at large), caused by smoke, noises and sparks of fire, occasioned by running of locomotives and cars along the track in front of the property.
    2. On the trial of such action, witnesses were permitted, against objection, to testify how much less per year was received as rent for the property affected since, than before the track was laid'in front of it; to give their opinions concerning the amount of damages sustained; and also their opinion as to “ the difference in value of the property with the track in the street and if it was some other place.”

      Held: This was error.
    (Decided October 4, 1887.)
    Error to tbe Circuit Court of Gallia County.
    The Ohio & West Virginia Railway Company, afterward merged into the Columbus, Hocking Valley & Toledo Railway Company, plaintiff in error, by agreement with the city council of the city of Gallipolis, laid its railroad track in and along the center of Spruce street near to and in front of the property of the defendants in error, operating its locomotives and cars thereon. The railway company does not claim to have acquired any right of way from the defendants in error. This is a suit to recover damages to, the abutting lot of defendants in error, by reason of the occupation and use of such street by the railway company.
    The defense interposed was that the railroad was duly constructed according to law and the ordinance of the city, and was properly and lawfully operated; and also a denial that the defendants in error had suffered the damage alleged in the petition. The issues were tried by a jury, which returned a verdict for plaintiffs, assessing their damages at $1000. Defendant below, now plaintiff in error, filed its motion for a new trial, which was overruled. The circuit court affirmed the decision of the common pleas. This suit is brought to reverse the decision of the circuit and common pleas courts.
    Upon the trial of the cause, Morgan Mollohan, one of the plaintiffs, offered himself as a witness, and testified as follows : Plaintiffs asked him the following question: “You may state your damage by reason of the railroad being in Spruce street ? ” To which question defendant objected, and the court overruled the objection, to which ruling the defendant, by its counsel, excepted. And the witness, in answer to the question, testified as follows: “ Two thousand dollars.”
    Gardner, the other plaintiff, was asked the .following question upon the trial: “ How much less per year do you receive as rent for the store-room on the premises described in your petition, than before the railroad was built along Spruce street ? ” Which question was objected to by defendant’s counsel; whereupon the court overruled defendant’s objection thereto, to which ruling defendant, by its counsel, excepted. And thereupon the witness, in answer to the question, testified: “We made a difference of $50 a year in the rent. I got $50 less for my half than I did before the railroad was built on Spruce street.”
    Against the objection of the company the following question was permitted by the court to be asked and answered concerning the extent of the plaintiffs’ injury: “ What difference is there in the value of the property with the track there, and with it somewhere else?” The same interrogatory, in the same form, was allowed to be propounded to, and answered by, several witnesses, over the objection and exception of the company.
    After the argument of counsel, the court charged the jury, among other instructions, as follow: “ The measure of damages is the difference between what the property is now fairly worth in money, and what its money value would be if the track complained of had not been built along the street in front of it; and in determining that difference, you may take into consideration, among other circumstances, the evidence relating to the annoyances occasioned to the occupant of the property by smoke, noises and sparks of fire occasioned by running of locomotives and cars along the track in front of the same.” To which charge the defendant excepted.
    There was evidence submitted to the jury upon the trial, which rendered this charge pertinent, and tended tó show injury and depreciation to the plaintiffs’ property beyond what would result from such annoyances as were common to the community at large. The action of the court as shown in the foregoing statement, is assigned for error in this eourt: asa ground of reversal of the judgments below. Other questions are presented by the record, but as the foregoing comprehend the questions which engage the consideration of tbe court, they are omitted from this statement..

      James A. Wilcox and Samuel A. Nash, for-plaintiff in error.
    The only grounds upon which the plaintiffs in error could be entitled to damages, as owners of abutting property, were such as were caused by the obstruction of the street by the traJIc itself — the rails, timbers, grade, earth, gravel, etc. — substantially affecting their use of the street, as an appurtenance to their premises. Parrot v. Cincinnati, H. & D. R. Co., 10 St. 624, 630; Crawford v. Delaware, 7 Ohio St. 459; Jackson v. Jackson, 16 Ohio St. 163; Eagle White Lead Co. v. Cincinnati, 1 C. S. C. Rep. 154; Sargent v. O. & M. R. Co., 1 Handy, 52; Branahan v. Hotel Company, 39 Ohio St. 333; Harrison v. Mt. Auburn Cable R. Co., 17 Week. Law Bull. 266.
    It may be contended that the following cases hold that the track is an “ additional burden” on the street, for which alone the owner is entitled to compensation, as an invasion of his easement. Street Railway v. Cumminsville, 14 Ohio St. 524; Lawrence R. Co. v. Williams, 35 Ohio St. 168; Railway Co. v. Lawrence, 38 Ohio St. 41; Branahan v. Hotel Co., 39 Ohio St. 333; Railroad Co. v. Hambleton, 40 Ohio St. 496. Granting that they do so hold, it is a mere abstract proposition of law; and they also distinctly hold that the additional burden must “ work material injury to the property.” The utmost -that can be claimed from them is that they decide the legal right of the property-owner to “ compensation ” without determining what that compensation should be, or on what ground assessed. It, therefore, follows, that this additional -burden, in and of itself, would be damnum absque injuria if it did not, in fact, cause some substantial, material injury to the access to the property. Even if the track were a nuisance, they would not be entitled to recover unless upon proof of special damage different from that sustained by the public. Wood Nuis., secs. 618, 619, 637, 655; Sedgw. Dam. 158-160; Bingham v. Doane, 9 Ohio, 167; Sargent v. O. & M. R. Co., 1 Handy, 52; Farrelly v. Cincinnati, 2 Dis. 516, 519; Parrot v. Railroad Co., supra; Hatch v. Railroad Co., 18 Ohio St. 92; Jackson v. Jackson, 16 Ohio St. 163; Rorer on Railroads, 522-526.

      The compensation can in no case be more than commensurate to the valué of that which is taken, and that value is the present value — its value in prcesenti, not in the future.
    As no possession is disturbed, no property taken to which the owner is entitled to any use or occupancy, it would seem as if the compensation or damages can only be nominal.

    A railroad track laid upon the street of a municipal corporation by authority of law, properly constructed, and operated in a skillful and careful manner is not, in law, a nuisance; and as annoyances, such as noise, smoke, fire, shakings of the earth, etc., are the consequential results of a lawful business, however annoying or injurious they may be, they form no foundation for a cause of action. They are, in fact, damnum absque injuria. Watson v. Pittsburgh, etc., R. Co., 37 Pa. St. 469, 479; Randle v. Pacific Railroad, 65 Mo. 325, 332; Atchison & N. R. Co. v. Garside, 10 Kan. 552, 566; Cleveland, etc., R. Co. v. Speer, 56 Pa. St. 325, 334; Presbrey v. Old Colony, etc., R. Co., 103 Mass. 1; Hatch v. Vermont, etc., R. Co., 25 Vt. 49; C. B., etc., R. Co. v. Twine, 23 Kan. 585; Proprietors, etc., v. Nashua, etc., R. Co., 10 Cush. 385, 391; Branahan v. Hotel Co., 39 Ohio St. 333; Attorney-General v. N. Y., etc., R. Co., 9 C. E. Green, 49; People v. Detroit, etc., R. Co., 37 Mich. 195.
    Section 3283, of the Revised Statutes, is a valid enactment. Lawrence R. Co. v. Williams, 35 Ohio St. 168; Goodin v. Canal Co., 18 Ohio St. 169; Railroad Co. v. Mowatt, 35 Ohio St. 284; Railway Co. v. Lawrence, 38 Ohio St. 41; Railroad Co. v. Hambleton, 40 Ohio St. 496.
    The court below, against the objection of the plaintiff in error, permitted witnesses to state their opinions as to the amount of damages; and “ how much less valuable ” the property was; and how much the rents had been reduced. This was contrary to the rule of law and the decisions of this court. Cleveland, etc., R. Co. v. Ball, 5 Ohio St. 568; Railroad Co. v. Campbell, 4 Ohio St. 583; Powers v. Railway Co., 33 Ohio St. 429.
    Speculative, prospective, detriment or injury cannot be estimated, but only such injury as is appreciable at the time, as the necessary or natural consequence, fairly and reasonably expected to follow the appropriation. Cleveland & P. R. Co. v. Ball, 5 Ohio St. 575.
    In case of the actual and permanent appropriation- of property, the rule is stated in Railway v. Railway, 30 Ohio St. 604, 624. It is the difference in the value of the land, and not the diminished annual rental that is to determine the damage. The measure of damage is, “the value of the property before and after the location of the road.” A. & G. W. R. Co. v. Campbell, 4 Ohio St. 585; C. & P. R. Co. v. Ball, 5 Ohio St. 573; C. & S. R. Co. v. Longworth, 30 Ohio St. 108, 111, 112; Railway v. Railway, 30 Ohio St. 624, 625; Powers v. Railway Co., 33 Ohio St. 430, 435.

      A. L. Roadarmour and I). B. Hebard, for defendants in error.
    1. The abutting lot-owner on a street or highway has a right of property in the street adjacent to his premises, just as well defined, and held by precisely the same tenure, and protected by the constitution and laws in the same manner, and to the same extent, as the property in the lot itself. It is positively and substantially private property, and its invasion as direct an injury to private property, as if the erections upon the lot were taken for public use. Crawford v. Delaware, 7 Ohio St. 470; McCombs v. Akron, 15 Ohio, 479; Bingham v. Doane, 9 Ohio, 168; Street Railway v. Cumminsville, 14 Ohio St. 523; Hatch v. Railroad Co., 18 Ohio St. 92; Railroad Co. v. Williams, 35 Ohio St. 172; Railway Co. v. Lawrence, 38 Ohio St. 44; Branahan v. Hotel Co., 39 Ohio St. 333; Railroad Co. v. Hambleton, 40 Ohio St. 496; Cohen v. Cleveland, 43 Ohio St. 190; Rigney v. Chicago, 102 Ill. 64; Railroad Co. v. Rodel, 89 Ind. 128; Story v. New York Elevated R. Co., 90 N. Y. 122; Denver v. Bayer, 23 Am. L. Reg. 440; Railway Co. v. Combs, 10 Bush, 382; Railway Co. v. Twine, 23 Kan. 585; Grafton v. B. & O. R. Co., 21 Fed. Rep. 309.
    2. An ordinary steam railroad in a street or highway imposes an additional burden on the land. Street Railway Co. v. Cumminsville, supra; Railroad Company v. Williams, supra;

      Railroad Co. v. Mowatt, 35 Ohio St. 284; Railroad Co. v. Cobb, 36 Ohio St. 94; Railway Co. v. Heisel, 38 Mich. 62; 2 Dill. Mun. Corp. sec. 704; 5 Wait, Ac. & Def. 290; Denver v. Bayer, supra; Crawford v. Delaware, supra; Cohen v. Cleveland, supra.

    3. This is an action in lieu of condemnation proceedings, and to recover compensation by way of damages, for the permanent appropriation of property in the street appendant to the lot, and consequent depreciation in value of the lot. The recovery is final, and precludes the abutting owners, and all claiming under them, for all time, whether this suit be governed by section 3283, Rev. Stats., or is a common law action in lieu of condemnation proceedings. In either view it is a suit to recover compensation for the appropriation of the private property of the lot-owners. Hatch v. Railroad Co., supra; Grafton v. B. & O. R. Co., supra; Railroad Co. v. Hambleton, supra; Dodson v. Cincinnati, 34 Ohio St. 276; Pierce on Railroads, 230; Railway v. Combs, 10 Bush. 382; Driver v. Railroad Co., 32 Wis. 569; Story v. Elevated R. Co. 90 N. Y. 122; Railway Co. v. Twine, 23 Kan. 585; Denver v. Bayer, 23 Am. L. Reg. 440; Lohr v. Metropolitan E. R. Co., 10 N. E. Rep. 528; Pitts. Junc. R. Co. v. McCutcheon, 7 Atlantic Rep. 146.
    4. The same rule of damages is applicable as in direct proceedings to condemn and appropriate; that is, that defendants in error are entitled to recover full compensation for the depreciation in value of their property. Grafton v. B. & O. R. Co., 21 Fed. Rep. 309; Powers v. Railway Co., 33 Ohio St. 429; Railroad Co. v. Cobb, 35 Ohio St. 94; Dodson v. Cincinnati, 34 Ohio St. 276; Railroad Co. v. Ball, 5 Ohio St. 568; 2 Dill. Mun. Corp. 622.
    Whatever goes to make up the damage or depreciation in value of the property is proper to be considered by the jury. Not simply the laying, of the track, for that of itself would be a very small factor in making up the depreciation; and to say that the purpose and use of the track are not to be considered is not reconcilable with any rule of damage found in the books. The statute does not confine the recovery to a particular class of injuries, and must be taken to mean “ all injuries of every description.” Grafton v. B. & O. R. Co., supra; Cohen v. Cleveland, supra; 2 Dill. Mun. Corp. 722, n. 3; Adden v. W. M. R. Co., 55 N. H. 413; Railway Co. v. Combs, 10 Bush. 382; Railway Co. v. Heisel, 38 Mich. 62; Denver v. Bayer, 23 Am. L. Reg. 440; Ham v. Wis., I. & N. R. Co., 61 Iowa, 716; Gulf C. & S. F. Co. v. Eddins, 60 Tex. 656; Lohr v. Metropolitan E. R. Co., 10 N. E. Rep. 528.
    5. It was proper for the witnesses to testify as to diminished annual rentals. C. & P. R. Co. v. Ball, 5 Ohio. St. 568. The other objection is to the form of the questions. The particulars of the injury were shown with fullness and by numerous witnesses, so that the form of the question was immaterial, and could not have operated to prejudice the plaintiif in error. Besides if technically incorrect, they were cured by the charge. Railroad Co. v. Hambleton, supra.

   Owen, C. J.

The agreement between the railway company and the city of Gallipolis, in pursuance of which the former laid its track along the street of the city, was made under the authority of section 3283 of the Revised Statutes, which provides that: If it be necessary, in the'location of any part of a railroad, to occupy any public road, street, alley, way, or ground of any kind, or any part thereof, the municipal or other corporation, or public officers or authorities, owning or having charge thereof, and the company, may agree upon the manner, terms and conditions upon which the same may be used or occupied; and if the parties be unable to agree thereon, and it be necessary, in the judgment of the directors of such company, to use or occupy such road, street, alley, way, or ground, such company may’appropriate so much of the same as may be necessary for the purposes of its road, in the manner and upon the same terms as is provided for the appropriation of the property of individuals; but every company which lays a track upon any such street, alley, road or ground shall be responsible for injuries done thereby to private or public property, lying upon or near to such ground, which may be recovered by civil action brought by the owner, before the proper court, at any time within two years from the compleof such track.”

One of the important questions in the case is: Did the trial court err in charging the jury that it could take into account, in estimating the damnges of the lot-owners, the evidence relating to the annoyances occasioned to the occupant of the property by smoke, noises, and sparks of fire, occasioned by the running of locomotives and cars along the track in front of the same ? ”

The tendency of the evidence is shown by the testimony of one of the witnesses on cross-examination by the company: Tell me what enter into your ideas of damage to this property? Ans. Well, this building there was for the purpose of a store; they were doing business in it, and it used to be a valuable stand, but it is not a desirable place now, because he keeps a general store and did a country business, but the road has run the customers off. I staid there seven years; quit in 1879. As elements of damage, I consider the shaking or jarring, smoke, for we had to close all the doors whenever there was a train, as the smoke made everything so dirty. He used to keep some white goods, and it would ruin them. Kept prints more or less, and it damaged everything of that kind.”

The plaintiff in error relies upou the authority of Parrot v. Railroad Co., 10 Ohio St. 624, as conclusive upon this point. Two propositions of the syllabus in that case are: (1.) That such owner and occupant is entitled to damages for any obstruction of the street by earth, gravel, timber or rail, substantially affecting his use of such street as an appurtenance to his premises. (2.) That in respect to noises, smoke, vapor, or other discomforts arising from the ordinary use of the railroad by the company, the occupant and owner of such lot and dwelling-house has no more right to recover damages of the company than any citizen who resides, or may have occasion to pass, so near the street and railroad as to be subjected to like discomforts. A railroad authorized by law, and lawfully operated, cannot be deemed a private nuisance.

This was an action of trespass on'the case brought anterior to the code, and seems to have been considered by the court •without reference to the remedy which is contemplated and, indeed, provided for, by the act in question. For, whereas the court declares, in that case, that the owner of such lot has no more right to recover damages of the company that any citizen who resides, or may have occasion to pass, so near the street and railroád as to be subjected to like discomforts, the act in question expressly authorizes an action and recovery for injuries done by laying a track upon any such street or ground to private or public property, lying upon or near to the street or ground upon which the track is laid.” It seems that to entitle a property-owner to recover for injury to his property, it need not necessarily be situated upon the street occupied by the track. The statute reaches beyond the decision in prescribing a remedy for a party whose property is injured by the location and operation of a railroad track through the street of a municipal corporation. It is quite clearly apparent that the court, in the case last cited, was dealing with the subject of noises, smoke, vapor or other discomforts ” upon the assumption that they were such inconveniences as the public at large must bear in return for the public good to be acquired, and not as special and peculiar causes of injury and depreciation to the property affected, as contemplated by the statute before us, in its application to a case like the one at bar. The provision in force at the time of the injury complained of in that case of which section 3283 is an amendment, created no such remedy for land-owners as we are considering. (46 Ohio L. 45.)

True, in the case at bar, the property involved was situated upon the street occupied by the track. It cannot be claimed, however, that the remedy of the owners is restricted by that fact. The plaintiffs below owned a valuable interest in the street taken by the railroad company for the use of its track. This is too well settled by the adjudications of this court to justify.the citation of authorities to sustain the proposition. This interest was a proper subject for appropriation and compensation by the company. It was taken without either. It was not within, the power- either of the city of Gallipoli's, or of the general assembly, to authorize the company to take this property of the plaintiffs below without compensation. While as between the city and the company the taking of the street was rightful, between the company and the plaintiffs it was wrongful. Whether the action below was one in the nature of an appropriation, we need not inquire. The question involved is whether, in the sense contemplated by the act in question, the property of the plaintiffs was materially and substantially injured by the location and operation of the railroad track upon the street upon which such property abutted.

Having invoked the provisions of this statute, it is not unreasonable that the company should be held to the remedies which it prescribes to parties injured.

The company further cites and relies upon Hatch v. Railroad Co., 18 Ohio St. 92, where it was held :

“ Nor is such owner entitled in such action to recover on account of increased danger from fire to his buildings or other structures * * * unless the proximity of his buildings, etc., to the railroad be such as to render the danger imminent and appreciable.”

The evidence below tended to show such a condition of things as, upon the proposition of this case, entitled the plaintiffs to damages.

While it may be conceded that in estimating the plaintiffs’ damages, the jury would not be permitted to take into account the consequences of the operation of the railroad which were common to the community at large, no sound reason exists for excluding from consideration such elements of inconvenience, annoyance, danger and loss as result to the property, its use and enjoyment, from the “smoke, noises and sparks of fire occasioned by running of locomotives and cars along the track in front of the same,” if it be shown that these caused special injury and depreciation to the property. The right to the use of this street by the public as an ordinary highway was all that had been surrendered by the owners of these abutting lots prior to the location of the railroad track. In that use there were none of the elements of injury of which they now complain. Without their consent and against their rights, these new and injurious burdens have been imposed, and that in perpetuity and to their substantial loss. What better rule of redress can be adopted than one which requires that this loss should be fully repaired? that the injured party should be made whole by having restored to him, as far as this may be done in money, what he has lost in the depreciation of his property by reason of the new burdens to which it has thus been subjected ?

It seems clear to us that this rule of recovery was within the legislative intent when it was provided that: “ every company which lays a track upon any such street, alley, road, or ground, shall he responsible for injuries done thereby to private or public property lying upon or near to such ground, etc.”

This view is supported by Railroad Co. v. Ball, 5 Ohio St. 568; Hatch v. Railway Co., 18 Ohio St. 92; Dodson v. Cincinnati, 34 Ohio St. 276; Powers v. Railway Co., 33 Ohio St. 429; Railroad Co. v. Cobb, 35 Ohio St. 94; Railroad Co. v. Williams, 35 Ohio St. 198; Railroad Co. v. Mowatt, 35 Ohio St. 284; Railway Co. v. Lawrence, 38 Ohio S., 41; L. M. Railroad Co. v. Hambleton, 40 Ohio St. 496; Cohen v. Cleveland, 43 Ohio St. 196; Grafton v. B. & O. Ry. Co., 21 Fed. Rep. 309. The latter case is important from the fact that it is reported by an eminent jurist, Mr. Justice Matthews, who was construing the statute now before us. He says: In an action by the owners of such abutting lots against the railroad company for damages, they are entitled to recover full compensation for the depreciation in value of their .property caused thereby. * * * The statute must be taken to mean what it plainly says; and there being no sufficient reason to the contrary, must be so construed that the railroad company, in the case contemplated, shall be held responsible for all injuries of every description done by its work to the plaintiff.”

This construction of the statute also finds support in Adden v. White Mts. N. H. Railroad, 55 N. H. 413, where it is. said: Whatever tends directly and substantially to diminish -the value of the tract of land left to the owner, * * * should be weighed and considered in awarding him his damages. That imminent and appreciable danger from fire does so diminish the value of his property there can be no question. * * * The location of the track and all such matters as grow out of and are caused by the location, are proper matters for the jury to consider.”

In Elizabeth, Lex. & B. S. R. Co. v. Combs, 10 Bush. 382; s. c., 19 Am. Rep. 73, the court say: “If his houses are damaged by having smoke, soot or fire from passing engines, thrown or blown into or against them, he is entitled to recover for this also. The dimunition of the value of the adjacent property occasioned by these circumstances will be the measure of his right of recovery.”

In Grand Rapids & I. R. Co. v. Heisel, 38 Mich. 62, the court say, Cooley, J.: “ In such a case his injury is not confined to making use of the public easement, but he may recover for any injury the incumbrance causes; ” and continues: “ He may recover for annoyances to business, or to family occupation, which the operations of the railroad company may cause.”

In Ham v. Wis., Ia. & Neb. Ry. Co., 61 Iowa, 716, it was held — after giving the rule to be the difference in value — that, “ In estimating such damages, the obstruction of the owner’s view, interfering with his privacy, and the noises of operating trains, are proper to be considered.”

In Gulf C. & S. F. Ry. Co. v. Eddins, 60 Tex. 656, the court say : “ Injuries resulting from sparks of fire from engines, smoke, cindei’S, unusual noises from bells and steam-whistles and other annoyances of like character, are proper elements of damage.”

These cases are in line with the manifest tendency of modern adjudications. In Lahr v. Metropolitan Elevated Ry. Co., 104 N. Y. 268, the court of appeals of New York was recently called upon to consider some of the questione involved in the case at bar, and declare the following to be the law of the ease:

“ Abutters upon public streets in a city are entitled to such damages as they may have sustained by reason of a diversion of the street from the use for which it was originally taken, and.its illegal appropriation to other and inconsistent uses; ” following Story v. New York Elevated R. Co., 90 N. Y. 122.

“ An elevated steam railroad in a street of a city, supported by columns placed along tbe outer line of the sidewalks and operated by steam power, is a perversion of the use of the street from the purposes originally designed; is a use which neither the city authorities nor the legislature can legalize or sanction without providing for compensation for the injury inflicted upon property of abutting owners : ” Following the same case. * * * *

The railroad corporation was liable for the operation of its trains and the consequences following therefrom in respect to the manufacture and distribution in.the air, of gas, smoke, steam, dust, cinders, ashes and other unwholesome and deleterious substances emitted from the locomotives.”

The exceptions to the instructions given to the jury upon this subject were not well taken, and the assignment of error thereon is disallowed.

2. Did the trial court err in the admission of evidence upon the subject of the damages sustained ?

The following questions were permitted to bo asked and answered : State your damage by reason of the railroad being in Spruce street ? ” How much less per year do you receive as rent for the store-room on these premises described in your petition, than before the railroad was built along Spruce street?” “ What difference is there in the value of this property with the track there and with it somewhere else ? ”

It is too well settled in this state to admit of controversy that the true rule of damages in such cases is the difference in the value of the property affected before and the value after the location of the railroad, and that this is to be determined by the jury in the light of the facts established by the evidence, and not upon the mere opinions of witnesses, except so far as opinions may be received upon questions of value: Atlantic & G. W. R. Co. v. Campbell, 4 Ohio St. 595; followed and approved in Cleveland & P. R. Co. v. Ball, 5 Ohio St. 573. In each of these cases witnesses were allowed to testify to their opinions concerning the amount of damages sustained, and in each case this was held to be error and the judgment reversed. The jury is entitled to be informed by witnesses concerning the value of the land before, and the value of it after, the location of the road. These are the primary facts which enable the jury to determine the extent of the injury. If it be contended that Avhen a witness has stated what, in his opinion, is the difference in the value of the land before and after the location of the road, or how much less it is worth after than before, he has substantially stated the substantive fact to be ascertained, the obvious ansAver is that he is, by this form of'inquiry, left to estimate in his own mind the amount of damages sustained, and give this to the jury as the difference in value. There is no assurance that he Avill, in making his estimate, take into account the actual value, before and after the location of the road. Indeed, there is no assurance that he may have an intelligent opinion of the value of the land affected either before or after such location, except that he has qualified himself, in the opinion of the court, as a witness. In Powers v. Railway Co., 33 O. St. 437, it is said by Day, J., in speaking for the court: On the trial, one of the land-owners Avas permitted to answer, against the objection of the company, the following question, viz.: e Hoay much less- valuable will your land be in consequence of this appropriation ? ’ Afterward, substantially the same question was asked of another witness on the part of-the company; to which the land-OAvners objected, and the court sustained the objection; but in so- doing, at the same time, ruled out the answer already given by the land-owner; to Avhich he excepted. The ultimate ruling of the court, in regard to the propriety of the question as asked on both sides, Avould seem to be sustained by the holding in Atlantic & G. W. R. Co. v. Campbell, 4 Ohio St. 573; and Cleveland & P. R. Co. v. Ball, 5 Ohio St. 568.”

Here is more than an intimation that these two forms of question — one relating to amount of damage, and the other to difference in value — are substantially equivalent. But the form of question we are considering related to the difference in the value of the property, with the track there and with it somewhere else ? ” What other location of the track Avith reference to the property, and how such different location may have affected its value, was concealed in the mind of the witness, so that his answer may have been a mere opinion upon facts of which the jury was not permitted to have the benefit. It was permitting the witness to usurp the province of the jurors and settle for them the ultimate fact which they were called upon to determine.

Concerning the question which involved the rents received, it is not easy-to see how the jury could be aided in determining the value of this property by being informed how much less per year the plaintiff received as rent after the location than before. The actual value of the rent was not necessarily involved in this question. If this inquiry was permissible, it would place it in the power of the plaintiffs, by private contract with the lessees, to fix their own basis of damages. Special reasons may have existed for letting the property at an extremely low rate of rent, and other reasons may have induced an extremely high rate, and all this without necessary reference either to the actual value of the property or even the actual rental value. The question did not call for an estimate of the actual rental value of the property, but simply called for a disclosure of the terms of a particular letting, which may and may not have been made with reference to the fact which the jury was to deteivnine. But even if the inquiry had covered the. past and prospective rental value of the property, we are met by the declaration of this court in Railway Railway, 30 Ohio St. 624, that: “ It is the difference in value of the land, and not the diminished annual rental, that is to determine the damage.” Citing Amsden v. Dubuque Ry. Co., 28 Iowa, 542. This case is cited and approved in Powers v. Powers, 33 Ohio St. 435, where it is said: The difference in the value of the owner’s property with the appropriation and that without it, is the rule of compensation. This difference must be ascertained with reference to the value of the property in view of its present character, situation and surroundings.. It cannot be enhanced by proving facts of a contingent and prospective character, such as the probable rents that may be derived from the property,” etc.

In permitting the foregoing questions to be asked and answered, there was error that calls upon us to reverse the judgments below.

3. The error assigned for the following charge of the court is not well taken. And I say to you that the track was completed whenever the defendant, or its predecessors, put it in condition fit for permanent use in running trains of railroad cars over it and with a view to permanently using and occupying the track for that purpose in connection with the main line; and the two years within which the action must be commenced begins to run from that time. If, after the defendant, or its predecessors, had put the- track in condition for permanent use, it déomed it necessary, or convenient, to change, and did change, the track by moving and placing it on a part of the street less injurious to the plaintiffs’ property, the jury would not be justified in saying from the fact of the change alone, that it was not completed until after the change was made ; but the fact of the change is a circumstance to be considered by the jury in determining whether the track was completed before the change, or not.”

"We find no other errors in the matters assigned as ground of reversal of the judgments below.

Judgments reversed, and cause remanded.