text:
    The State of Ohio v. Shaw et al.

      Animals ferae naturae — Right of property in — Bo as to be subject of larceny — Possession required of pursuer — But not absolute security against escape — Fish taken from net — Question of larceny — Criminal law.

    .1. To acquire a property right in animals ferae naturae, so that they may be the subject of larceny, the pursuer must bring them into his power and control so that he may subject them to his own use at his pleasure, and must so maintain his possession and control as to indicate that he does not intend to abandon them again to the world at large; but in eases where larceny is charged the law does not require absolute security against the possibility of escape.
    2. When fish are enclosed in a net,' or in any other enclosed place, which is private property, from which they may be taken at any time at the pleasure of the owner of the net or enclosure, the taking of them therefrom with felonious intent will be larceny.
    (Decided November 18, 1902.)
    Exceptions to the Court of Common Pleas of Lake county.
    The defendants in error were indicted in Lake county for the crime of grand larceny. The indictment is as follows:
    “In the court of common pleas of Lake county, Ohio, of the term of May, in the year of our Lord one thousand nine hundred and one.
    “The jurors of the grand jury of the state of Ohio, within and for the body of the county of Lake, duly impaneled, sworn and charged to inquire of crimes and offenses committed within the said county of Lake, in the name and by the authority of the state of Ohio, upon their oaths do find and present, that Henry Shaw, John Thomas and James Fostine, late of said county, on the fifteenth day of May, in the year of our Lord one thousand nine hundred and one, with force and arms, in said county of Lake and state of Ohio, unlawfully and feloniously did steal, take and carry away seven hundred and thirty pounds of fish, of the value of forty-one dollars, of the personal property of Morris E. Grow and John Hough, partners as Grow and Hough, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Ohio.”
    One of the defendants, John Thomas, was tried separately. On the trial no evidence was offered by the defendant. The evidence offered by the state disclosed that on the morning of May 15, 1901, about 5 or 6 o’clock, a small sail-boat was discovered two or three miles off Fairport harbor; a tug ran out and overhauled this boat and discovered they had fish on board. In reply to an inquiry where they had got the fish they said near Cleveland out of a trap net. They were asked to come to the harbor with the tug, and refused; two other tugs came to the assistance of the one already there, and brought in the defendants, with their boat, and they were arrested. It is in evidence that on the way in, the defendant, John Thomas, said that “they lifted two pound nets west of the pier and got the fish.” The testimony further tended to show that the two pound nets belonged to Grow and Hough, the parties named in the indictment, and that the defendants had taken from these twm nets somewhere from 100 to 150 pounds of fish, each. It also appears that the construction of these pound nets is such that the entrance to the net was about thirty-five feet deep, eight rods long, and terminated in an aperture leading into the net, which was twu feet and ten inches in diameter. This tunnel, as it is called, extended into-the net, or pot, some five or six feet, and the pot was about twenty-eight feet square, reaching, perhaps, four feet above the water. The evidence shows that the opening of .the tunnel into the pot was the place where the fish entered, and that it was at all times left open. There is no evidence as to the quantity of fish escaping from the nets; it simply appears that it was possible for the fish to go out in the same way they got in. It was also in evidence that these nets were frequently disturbed by wind and storm, and at such times so disordered that fish escaped over the top. When the state had rested its ease the defendant, Thomas, moved the court to arrest the testimony from the jury and direct a verdict of not guilty. The court overruled this motion, but after argument did direct a verdict of not guilty, which was returned by the jury, and to which the state excepted.

      Mr. J. M. Sheets, attorney general; Mr. Harry P. Bosworth and Mr. Homer Harper, for plaintiff.
    The trial judge, in directing a verdict of “not guilty,” took the view that while all the other material averments of the indictment had been proved beyond reasonable doubt, yet the prosecution had not proved that the fish were sufficiently “confined,” or “reduced to possession,” to be the subject of larceny. The trial judge should have told the jury, what is the undoubted rule of laAV, to-wit: That fish caught or confined in a net or trap are the subject of larceny. Chit. Bl., book 4, 189; 2 Russ, on Cr. (5 ed.), 83; Clark’s Crim. Law, 243; Desty Am. Cr. Law, section 145q; 2 Am. & Eng. Ency. Law (2 ed.), 345; 6 Am. Rep., 744; 2 Bish. Cr. Law, section 775; 3 Lawson Rights, Remedies and Practice, section 1367.

      Whether the fish which defendant was charged with stealing, were so “caught,” or “confined,” or “reclaimed,” as to be the subject of larceny was a question of fact, which should have been submitted to the jury. The defendant offered no evidence, while the testimony of the state showed value and all the other elements of larceny — and that of all contrivances or devices for catching and retaining fish the pound net is the best. Post, Bill of Ex., 9, 10, 11, 12; Goff, 21, 23; Gibson, 81; Hough, 97.

      Mr. A. G. Reynolds and Messrs. Foran, McTigue & Baker, for defendants.
    Fish, while roaming at will in public waters, are ■animals ferae naturae, and are the property of the community at large, but they may become the subject of a qualified property in an individual if reclaimed, confined or dead, and if fit for food when such qualified property is acquired, they become the subject of larceny.
    No question has been made but that the waters of Lake Erie are public waters and that the right of fishing is public and common to all.

      (a) There is no question but that fish in streams, or bodies of waters like Lake Erie, have been, and are, classed ferae naturae. It being conceded that fish unrestrained in the waters of Lake Erie are not the property of any one and not the subject of larceny, we come to the question at issue, to-wit: What is necessary, in order to bring fish wandering at will in the waters of Lake Erie sufficiently within the dominion of a man so that they can be stolen from him.

      (b) In Lawson’s Rights and Remedies, section 1367, encompassing and securing such animals with nets and toils, or otherwise intercepting them in such a manner as to deprive them of their natural liberty and to render escape impossible, may justly be deemed to give possession of them to those persons who, by their industry and labor, use such means of apprehending them. Language to the same effect is used in 2 Am. & Eng. Ency. Law, 42, and numerous authorities cited.
    (c) The authorities seem to he agreed touching the question that in order to render fish subject to larceny they must be brought under the dominion of man. For instance, if they be killed and are in the possession of the slayer, or if caught and confined in traps or nets, or other contrivances, so that escape is rendered impossible and they may be taken at the pleasure of the owner, they are then in his actual possession. People v. Bridges, 16 L. R. A. (Ill.), 684; McCartee v. Orphan Asylum Soc., 18 Am. Dec., 523 and note; 78 N. C., 481; Commonwealth v. Chase, 19 Am. Dec., 348; Wheatley v. Harris, 70 Am. Dec., 258 and note; State v. Doe, 41 Am. Rep., 599; Ward v. State, 17 Am. Rep., 31; 25 Alb. L. J., 444; State v. Brown, 40 Am. Rep., 81; Norton v. Ladd, 20 Am. Dec., 573; and State v. House, 6 Am. Rep., 744.
    Actual bodily seizure is not necessary in order to acquire such property in food fish. It may be acquired by confinement in nets or other contrivances where they may be taken at the pleasure of the owner; but such confinement must be actual and such as to deprive the fish of their natural liberty and render escape impossible. Young v. Hitchens, 51 E. C. L., 606; Dwelle v. Wilson, 7 Circ. Dec., 611; 14 C. C. R., 551; People v. Lumber Co., 39 L. R. A., 581; 116 Cal., 397.
    Food fish in the “trap,” or “pot,” of a pound net set in public waters, are not the subject of larceny so long as the aperture through which they entered is left open so that they may escape therefrom at will.
    Counsel for the state have undertaken to maintain the proposition that fish in a pound net in the condition shown in this case was the subject of larceny, because tire owner has a qualified interest in them, whatever that interest may be said to be. The trouble with that proposition is that counsel failed to distinguish between the two classes of property, and what the courts and writers called qualified property in animals ferae naturae, to-wit: That wild animals are not the property of any one, so that the illustration of a bailee, etc., does not apply. As said the court in Maguer, C. v. People, 97 Ill., 320, no one has the property in animals and fowls until they are reduced to possession.
    Said Blackstone, in 2 Com., 381, a qualified property in wild animals may be obtained in them by a man reclaiming them and making them tame by art and industry, and by education, or by so confining them within his own power that they cannot escape- and use their natural liberty.
    Pish unless reclaimed, confined or dead and valuable for food is not considered to be property. State v. Krider, 78 N. Car., 781.
    A sable caught in a trap was not considered to he property so as to sustain an action for larceny. Norton v. Ladd, 5 N. H., 203.
    Wild animals when captured and so under the control of the capturer that they cannot escape, were the property of the one who captured them. Bac. Abr., 431; State v. House, 65 N. C., 315.
    The state, in the exercise of its power, instead of prohibiting the killing altogether, permits the person killing them to acquire only a qualified right in them,, namely, the right to appropriate them to his own use, and‘the right to sell or transport them for domestic use. The birds in question never became articles of commerce, within the meaning of the term contended for by the defendant. They became private property of a qualified character. The law limited -the purposes for which they might be killed and became private property. The difference between property of this sort and the ordinary private property of commerce is obvious. Connecticut v. Geer, 13 L. R. A., 804; American Express Co. v. People of Illinois, 9 L. R. A., 138; Minnesota v. Chapel, 32 L. R. A., 131; 2 Kent Com., 349.
    It was a question in the Roman law, whether a wild beast belonged to him who had wounded it so that it might easily be taken. Civilians differed on the question, but Justinian adopted the opinion, “That the property in the wounded wild beast did not attach until the beast was actually taken.” And the-author goes further to say “that qualified property in chattels may subsist when goods are bailed, or-pledged, or distrained. But those cases are where there was an absolute owner.”
   Davis, J.

Fish are ferae naturae; yet, “where the animals or other creatures are not domestic, but are ferae naturae, larceny may, notwithstanding, be committed of them, if they are fit for food of man and dead, reclaimed (and known to be so) or confined. Thus * * * fish in a tank or net, or as it seems in any other enclosed place which is private property, and where they may be taken at any time at the pleasure of the owner * * * the taking of them with felonious intent will be larceny.” 2 Russ. Cr., 83. “Fish confined in a tank or net are sufficiently secured.” 2 Bishop Cr. Law, section 775.

The trial judge seems to have directed the jury to return a verdict of “not guilty” on the theory that the fish must have been confined so that there was absolutely no possibility of escape. We think that this doctrine is 'both unnecessarily technical and erroneous. For example, 'bees in a hive may be the subject of larceny, yet it is possible for the bees to leave thb hive by the same place at which they entered. To acquire a property right in animals ferae naturae, the pursuer must bring them into his power and control, and so maintain his control as to show that he does not intend to abandon them again to the world at large. When he has confined them within his own private enclosure where he may subject them to his own use at his pleasure, and maintains reasonable precautions to prevent escape, they are so impressed with his proprietorship that a felonious taking of them from his enclosure, whether trap, cage, park, net, or whatever it may be, will be larceny. For such cases, as is clearly shown by the authorities above quoted, the law does not require absolute security against the possibility of escape, and none of the authorities cited for the defendants in error, except Norton v. Ladd, 5 N. H., 203, sustain their contention. Young v. Hichens, 6 Ad. & Ell., N. S., 606; S. C., 51; E. C. L., 606; is not applicable to this case. That was an action for the conversion of fish which were never in the plaintiff’s net, but had been frightened away from entering into the plaintiff’s net by the defendant and caught in his own net.

In the present case the fish were not at large in Lake Erie. They were confined in nets, from which it was not absolutely impossible for them to escape,' yet it was practically so impossible; for it seems that under ordinary circumstances few, if any, of the|fish escape. The fish that were taken had not escaped, and it does not appear that they would have escaped, or even that they probably would have escaped. They were so safely secured that the owners of the nets could have taken them out of the water at will as readily as the defendants did. The possession of the owners of the nets was so complete and certain that the defendants went to the nets and raised them with absolute assurance that they could get the fish- that were in them. We think, therefore, that the owners of the nets, having captured and confined the fish, had acquired such a property in them that the taking of them was larceny.

Exceptions sustained.

Bueket, C. J., Speae, Shauck, Price and Crew, JJ., concur,


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    Grant v. The Village of Hyde Park.

      Condemnation of land by municipality — Proceedings embrace compensation to owner — Damages to abutting owners — Council to determine extent and purpose of appropriation — Change of grade subject to inquiry — Proceedings before jury as to establishment of grade — And damages to property holders— General and special verdict by jury — Jurisdiction of reviewing court — Law of municipal corporations.

    1. In a proceeding brought by a municipality to condemn land for a street, the inquiry necessarily embraces not only an ascertainment of compensation to the landowner for the land taken, but damages to the residue of the abutting land of such owner.
    2. The question of what is to be appropriated is determined by the resolution of the council and the application filed in court in conformity therewith. And where the application makes a general demand for an appropriation for street purposes, and prays that a jury be impaneled to make inquiry into and assess the compensation to be paid the landowners, and the inquiry proceeds on such application without amendment, the effect of the judgment of condemnation is to give to the municipality the right to use the land taken for all street purposes, including the right to establish a reasonable and proper grade. Hence, the question of probable future grade of the street is a proper subject of inquiry in the ascertainment of damages to the residue of the land.
    3. The council of such municipality has not power, by an ordinance passed while the condemnation suit is being tried, to change the terms of its resolution and of its application so as to ask to appropriate more or less than is therein demanded.
    4. Where, in such case, testimony has been received tending to establish a number of different methods of grading the street, as bearing upon the probable and reasonable grade which the municipality mav in the future adopt, and the jury has, upon the whole case, found for the landowner substantial damages to the residue of his land, and has returned thetsame in a general verdict, and has at the same time returned a special verdict in answer to interrogatories submitted, to the effect that damages are allowed on ac#ount only of a future grade tkat might be established and the street improved in accordance with it, and that if the street should be improved on a grade which would not necessitate a cut in excess of five feet there would be no damage, it is error for a reviewing court to disregard the general verdict as to such -damage and to hold that that verdict is controlled by the special verdict, and, upon that ground, set aside the amount found in the general verdict as the damages the party will sustain to the residue of the land by reason of the appropriation.
    (Decided November 18, 1902.)
    Error to the Circuit Court of Hamilton county.
    This is an appropriation case. The proceeding was commenced in the court of common pleas by the Tillage of Hyde Park against the plaintiff in error, Nathan Grant, and John Kilgore and Mary Kilgore, .as owners -of the land sought to be appropriated. The application to appropriate and assess compensation was filed under favor of Section 2235, Revised Statutes, and following. It recited “that its council, by ordinance duly passed on September 13, 1899,' de’dared its intention to and did appropriate for such use for street purposes, for opening a street to be known as Avery Lane,” property specifically described, a portion of which was owned by Grant and the remainder by the Kilgores. The strip was fifty feet in width extending from Observatory place westerly to Columbian avenue, a distance of about 390 feet. The prayer was that “a jury be impaneled to make inquiry into and assess the compensation to be paid by the plaintiff for the property appropriated •as above set forth, and that upon payment possession be awarded,” etc. Proper notice was given the defendants, and at the time fixed a jury was impaneled and a trial had. Divers exceptions were taken by the plaintiff to the admission of testimony and to the charge of the court to the jury, which will be noticed in the opinion. A verdict was returned iii favor of Grant for $750.00, válue of land taken, and $1,250.00 for damages to the residue. A lesser amount was returned in favor of the other parties. In response to interrogatories, a special verdict was also returned finding that damages to residue were allowed on account only of a future possible grade that might be established, and the street improved in accordance with such grade; and that if the street should be improved on a grade which would not necessitate a cut in excess of five feet there would be no damage to the residue of the property. Error being prosecuted to the circuit court, that court found that it appeared from the record of the proceedings that the Village only condemned the right to make a cut five feet in depth, and that, therefore, by force of the special verdict, no damage accrued to the residue of the land. It thereupon adjudged that so much of the judgment below as awarded damages to the residue of the land beset aside and held for naught, but that the judgment of the common pleas be in all other respects approved and confirmed.
    To obtain reversal of the judgment of the circuit court and an affirmance of that of the common pleas, this error proceeding is brought.

      Mr. John C. Healy and Mr. F. H. Kinney, for plaintiff in error, cited and commented upon the following-authorities :

      Harbeck v. Toledo, 11 Ohio St., 219; Dyckman v. Mayor, 1 Seld., 439; State v. Jersey City, 1 Dutch., 310; Boneparte v. Railroad Co., 1 Bald. C. C. R., 229; In re New York & West Shore R.R. Co., 89 N. Y.. 454 ;
      Gas Light & Coke Co. v. Columbus, 50 Ohio St., 65; Gazler v. Georgetown, 6 Wheat., 593; Spoors v. Coen, 44 Ohio St., 497; People ex rel. v. Trustees of Haverstraw, 137 N. Y., 88; Railroad Co. v. Miller, 125 Mass., 1; Parks v. Boston, 15 Pick., 198; Richards v. Cincinnati, 31 Ohio St., 506; Powers v. Railway Co., 33 Ohio St., 430; Railroad Co. v. Ball, 5 Ohio St., 569; Pontiac v. Carter, 32 Mich., 164; Callender v. Marsh, 1 Pick., 418; Rounds v. Mumford, 2 R. I., 154; Fellowes v. New Haven, 44 Conn., 240; Skinner v. Bridge Co., 29 Conn., 523; Water Co. v. Middaugh, 12 Colo., 434; Portland v. Kamm, 10 Ore., 383; Cummins v. Railway Co., 63 Ia., 397; Crawford v. Delaware, 7 Ohio St., 459.

      Messrs. Burch & Johnson and Mr. Edward Colston,. for defendant in error, cited and commented upon the following authorities:

      Railway Co. v. Railway Co., 30 Ohio St., 623; Powers v. Railway Co., 33 Ohio St., 429; Wallace v. Gas Co., 147 Pa. St., 205; Coal Co. v. Gas Co., 131 Pa. St., 522; Cushing v. Boston, 144 Mass., 317; Lieberman v. Railroad Co., 141 Ill., 140; Village of Hyde Park v. Kilgour, 10 Circ. Dec., 837; 20 C. C. R., 452; Pontiac v. Carter, 32 Mich., 164; Rounds v. Mumford,. 2 R. I., 154; Water Co. v. Middaugh, 12 Colo., 434; Fellowes v. New Haven, 44 Conn., 240; Cummins v. Railway Co., 63 Ia., 397; Skinner v. Bridge Co., 29 Conn., 523; Portland v. Kamm, 10 Ore., 383; Crawford v. Delaware, 7 Ohio St., 459; Railway Co. v. Cumminsville, 14 Ohio St., 523.
   Spear, J.

To a full understanding of the issue made and tried in the common pleas, it is proper here to state that the landowners contended that, in determining the question of damage to the residue of their lands, the jury should be informed by testimony touching the question of a probable grade of the street. It was further urged that a natural grade would be one which would bring the west end of Avery lane on a level with Columbian avenue. On the other hand it was contended by the plaintiff that the question of grade did not properly enter into the inquiry, that being a matter calling for a subsequent proceeding when it should be proposed by the Village to improve the street, and that damages, if any, by such improvement, would then be awarded the landowners including the matter of grade. In addition to this it was shown that the fall from the level of the ground at the east end of the proposed street to the grade of Columbian avenue, its western terminus, was about fifty feet, and that the grade suggested would be wholly impracticable and unreasonable. The court overruled the objection of the Village to the introduction of testimony respecting the probable grade, and evidence was introduced pro and con by both parties on that subject. The Village further insisted that it was not its purpose to make a cut in excess of five feet, and that, in that case, there would be no damage. It also, during the trial, asked leave to amend its application by setting forth therein that there is no intention or desire to make any grade on this street that will necessitate a cut in excess of five feet along the center line of the street at any time in the future. This application was overruled and the cause ordered to proceed on the theory of the law already adopted. After the evidence of the landowners had closed, the plaintiff offered in evidence a certified copy of an ordinance, passed in council the evening before, which purported to declare that there was no intention of the council at any time to fix a grade which would necessitate a cut in excess of five feet, and disclaiming any intention at any time of ever establishing a grade which will require a cut in excess thereof. Also, purporting to authorize and direct the solicitor to consent to the entry of a judgment in the case pending, perpetually enjoining the plaintiff, its successors or assigns, from ever establishing a grade in excess of five feet. Also further authorizing the solicitor to make such further agreement and have the same made an order of court, as would fully protect Grant from any damage he might suffer by reason of a grade being established in the future by the Village which would necessitate a cut in excess of five feet. This ordinance was, over the objection of the defendants, admitted.

At the close of the testimony, the plaintiff requested the court to charge the jury “that in considering the question of damages to the residue you are not to consider the question of grade at all.” This was refused, to which exception was taken. The court then charged, among other things, that: “You have the right to consider the probabilities or the contingencies that may arise in the future grading of this strip of ground for street purposes; you have the right to consider the practicability of a grade running straight from the top of the hill down to Columbian avenue; you have the right to consider the practicability of grading the street three, four or five feet, as has been testified, and the erection of steps at the end of that street to connect it with Columbian avenue; you have the right to consider the contingency or probability of connecting the street by a street parallel with Columbian avenue, turning at that point and running down the side of the hill or bluff; you have ■a right to consider the probability or contingency of the Village of Hyde Park or its successors excavating down to a line directly drawn from the line of Columbian avenue, the surface line of Columbian avenue, to the east line of Mr. Grant’s property. Use your own good, sound judgment on the testimony that you have heard as to whether or not, in any of these events, or the probability of these events, or contingency of these events, what damage might result to the residue of the property of Mr. Grant or Mr. Kilgore.”

To this part of the charge, also, the plaintiff excepted.

In modifying the judgment of the common pleas by setting aside the amount allowed for damages to the residue of the land, the circuit court assumed that the general verdict was neutralized by the special verdicts, and that it controlled. We assume that this was a finding of law, and not of fact, for had the court reviewed the evidence as to its weight and found the verdict unsupported, it would have reversed the judgment in boto and remanded the case for a new trial. Hence its judgment is reviewable here. If that court is right in the holding stated, then clearly its conclusion is right and its judgment should be affirmed; if, on the other hand, its holding is erroneous, then the judgment should be reversed unless the exceptions of the plaintiff to the court’s refusal to charge, and to the charge as given, were well taken.

This leads to a consideration of the character of the-case which the common pleas had before it. It was a proceeding in which the Village was attempting to-avail itself of its power of eminent domain; the power to seize and appropriate to its own use the property of the citizen whether he be willing or not. This power was delegated to the municipality by statute, is in derogation of the common law, and it would seem elementary, on principle, that authority so given must be strictly pursued; at least the decisions in support of this proposition are abundant, and are, it is believed, wholly without exception. Harbeck v. Toledo, 11 Ohio St., 219, and authorities there cited. By going to the statute (section 2235), we find that the proceeding starts by the introduction of a resolution declaring the intent to appropriate, defining the purpose of the appropriation, and setting forth a pertinent description of the property designed to be appropriated. Immediately upon the introduction of such resolution, and before the passage of the same, the mayor shall cause written notice thereof to be given the owner of every piece of property sought to be appropriated. No action shall be taken upon the resolution until all the owners have had notice, and on the passage of the resolution the yeas and nays shall be taken (a two-thirds vote being required), and entered of record. Upon the passage of such resolution (section 2236), application in writing shall be made to the proper court, which shall describe as clearly as possible, the property to be taken, the object proposed, and the name of the owner of each parcel.

From this it is apparent that the property which the municipality may thus acquire is that, and that only, which is described in the resolution. It seeks to acquire that precise property, or, putting it in different form, it has already appropriated the property described, for the proceeding in court is one simply for the ascertainment of the amount of compensation to be paid the landowners. Old Col. Railroad Co. v. Miller, 125 Mass., 1; Parks v. Boston, 15 Pick., 198. And what is it that the municipality thus acquires? Why. it is the title to the property in trust for the public for street purposes, and this implies the-right to adapt the land thus obtained to street uses, prominent among which is the establishment of a reasonable and proper grade. This is a distinct stab utorv duty, embraced within the requirement to keep* the streets open, in repair, and free from nuisance. The resolution in this case, and the application made-in pursuance of it, contains no qualification of the right which under the law the village might acquire. The effect, therefore, of the appropriation is to vest in the municipality every right which, legally, it could acquire. Had the council seen fit to ask less than this unqualified right, probably it could have* thus restricted the scope of the appropriation. But. it elected to ask all that the law contemplates it may possess, and that is the case made by its resolution and its application, and that is the case of which the common pleas acquired jurisdiction to adjudicate, and it had before it. none other. Had the Village excepted to the refusal of the court to allow an amendment to its application restricting its right, a different question would be presented. We are not called upon for an opinion as to that question, and do not undertake to decide it, although it is difficult to discover power in the court to permit such amendment, the amendment sought not being for the purpose of curing a defect or informality (section 6423, Revised Statutes), or for the purpose of obtaining a more full and accurate description of the property or the object proposed (section 2244, Revised Statutes), all these eleanents‘being clearly set forth, but for the purpose of making a case essentially different from that instituted by the original resolution upon which the entire proceeding was founded, and the court itself acting as a court of special and limited jurisdiction.,. And if the court had no jurisdiction to allow such amendment and then proceed on the application as amended, its judgment based on such amendment would be void. Spoors v. Coen, 44 Ohio St., 497. Doubtless the Village might have accomplished the desired object by dismissing its case and beginning d& novo by a proper resolution in council, rescinding or repealing its former action, and making a new case. It suffices to say, however, that the proceeding in the common pleas was conducted to the end in that court upon the application as therein filed, and by that the rights of the parties are to be determined. The purpose of introducing the second ordinance was to show that the council had elected to ask less than its resolution and application to the common pleas demanded. Manifestly this could not avail. The scope and extent of the case of the Village having been determined by its preliminary resolution and its application, to recognize the later ordinance would have been to override the demand of the application, thus making a new case, and accomplishing indirectly what the court had refused leave to accomplish directly. The passage of the resolution was a legislative act. It was final as to the purpose to appropriate, and the'scope of the demand, and exhausted the power of the council in that regard so long as it remained unrepealed. The making of a new case would require the same formalities that the statute required for council’s action in the first instance. Nor had the council power to bind its own future action, or that of its successors, as to the matter of grade in this manner, and the court, under the issues, was without power to give effect to the council’s later action. Gas Light & Coke Co. v. Columbus, 50 Ohio St., 65; Goszler v. Georgetown, 6 Wheat., 593.

If these conclusions be correct it follows that the special verdict was an idle ceremony, for, if the jury, under the instructions of the court, had found that the probable and reasonable grade would be one of five feet only it would have awarded compensation for land taken only, and would have refused to award damages to the residue. Its general verdict shows that from the evidence it found against the claim as to a five foot grade, and that after a full consideration of all the evidence in the case. This general verdict remains unimpeached. It fully warranted the judgment of the common pleas provided any evidence as to grade was competent. We are of the opinion that the theory upon which the circuit court proceeded, in its modification of the judgment, was clearly erroneous.

But it is argued that no evidence as to grade was competent; that the trial court erred in permitting such evidence, and in refusing plaintiff’s request to charge, and in its charge upon that subject, because the matter of the grade of the street is no part or incident of acquiring or appropriating the property to be used as a street, but is a part and incident of the improvement of the street, and until a proceeding to improve the street is instituted, damages, if any, to the residue of the lot owner’s property cannot be awarded or even considered. True it is that the question of grade is one of prime importance where a street which has been built upon is to be improved by paving and it is proposed to then change a grade formerly established, which is a familiar incident in the larger municipalities. In such case, by the Ohio rule, the owner of the improved lot is entitled to damages, if any he suffers, by reason of the change of grade, the rule being as held in Goodloe v. Cincinnati, 4 Ohio, 500; in Smith v. Cincinnati, 4 Ohio, 514; in McCombs v. Akron, 15 Ohio, 474, and in Akron v. McCombs, 18 Ohio, 229, and re-stated and held in Crawford v. Delaware, 7 Ohio St., 459, that: “If erections are made on a lot in accordance with an established grade, and the grade is afterward altered, and a substantial injury is thereby done to the owner of the lot, he is entitled to compensation.” But, as held in the case last cited, and more distinctly announced in Akron v. Chamberlain Co., 34 Ohio St., 328: “The owner of a lot abutting on an unimproved street of a city or village, in erecting buildings thereon, assumes the risk of all damage which may result from the subsequent grading and improvement of the street by the municipal authorities, if made within the reasonable exercise of their power.” It will be noted that these cases deal with damages to improvements only.

In the case before us we have the situation of unimproved lots lying upon a contemplated street as to which there had been no establishment of grade. How, then, under the rule as above stated, could the lot owner improve without taking all the risks of a future grade, and how could he sell without his purchaser taking a like risk which would naturally result in a demand for a corresponding abatement of price? We have already found that by the appropriation the Village acquired the strip appropriated for every use of a street, including the right to grade in accordance with its best judgment. Even if compensation might be afterward made in case a proceeding to pave should be instituted — and we think it could not be — why delay? It is urged that the ascertainment of a proper grade was a matter of speculation, and was in Its nature too uncertain to admit of a legal inquiry into it by evidence. We cannot see force in this proposition. But if it lias significance who was responsible for it? The Village framed its case to suit, itself and if its method of stating its demand made the inquiry difficult and one which led niore or less into the field of conjecture, whose fault was it? Surely not that of the landowners.- The council had the power to fix the grade at the time of passing its resolution and before commencing its proceeding as. well as afterward, and the same was entirely practicable, and it comes with poor grace from the Village to endeavor to throw the embarrassments incident to its want of foresight in that behalf upon the landowner who had, and could have, no voice in the-matter.

It is always well, when dealing with the rights of a citizen, to keep in mind the landmarks of the constitution. Our bill of rights distinctly declares that: “Private property shall ever be held inviolate, but subservient to the public welfare,” and where taken for public use compensation in money shall be made-the owner, the amount thereof to be assessed by a jury. The principle as well as the character of the elements which enter into the term compensation is. well stated by Barclay, J., in Railroad Co. v. Ball, 5 Ohio St., at p. 575: “The provisions of the constitution of this state on this subject, are somewhat different from the provisions in the constitutions of some-of the other states. ‘Full compensation’ is required to be made to the owner in money for the appropriation of his property, as a condition precedent. To be a full compensation, it must be a remuneration or recompense for that detriment or loss to the owner in the value of his property arising from the taking-of his property in connection with the use for ‘which it is taken. Where a piece or strip of land is 'taken and severed by the appropriation from its connection with other land of the owner, some elements of compensation necessarily enter into the computation besides the abstract value of the number of feet or acres of ground actually taken. These elements of compensation may be comprehended in the following: First, the abstract value of the quantity of ground taken; second, the value arising from the relative situation of the land, taken in its connection with the residue of the owner’s land from which it is severed; and third, the effect upon the value of the residue of the owner’s land arising from the uses for which the appropriation is made. These grounds of compensation will give the landowner a recompense for the loss in the value of his property, caused by the appropriation for the special purposes or use for which it is authorized.”

Compensation means full compensation, and it should be paid Avhen the title to the property taken, including the right to adapt it to street uses, is parted with by the landowner and acquired by the municipality ; nor is any reason apparent why the ascertainment of the amount of compensation should be postponed. Why should the lot owner on the one hand be put to the necessity of trusting to another suit to recover damages arising which could have been anticipated at the time of the appropriation, and why, on the other hand, should the municipality be prevented from ascertaining and paying at once and forever Avhatever just demand the landowner may have arising from the appropriation, or, in lieu thereof of exercising its election, as authorized by section 2260, to refuse to pay and thus allow its right to make the appropriation, on the terms of the assessment, to cease and determine? Why should a multiplicity of suits be encouraged? Indeed why does not the rule that a multiplicity of suits should be avoided apply and control the case? There are present the proper parties, a court having jurisdiction of the parties and the subject-matter, an issue as to compensation and a jury to determine its amount. Surely this is the time and place to have compensation for all damages ascertained and fixed. This is in accord with the doctrine of Hatch v. Railroad Co., 18 Ohio St., 92, and with the opinions of text writers, and many decisions of courts of other states. Says Judge Elliott, in his work on Roads and Streets, sec. 256: “Damages are assessed once for all and the measure should be the entire loss sustained by the owner, including in one assessment all injuries resulting from the appropriation, whatever may be their character.” The same rule is given by Lewis, in his treatise on Eminent Domain, sec. 565; by Randolph in his work on the same subject, sec. 274, and by many decisions, some of which we cite: D. C. I. & W. Co. v. Middaugh, 12 Col., 434; Portland v. Kamm, 10 Ore., 383; Cummins v. Railway Co., 63 Ia., 397; VanRiper v. Essex Pub. Road Board, 38 N. J. L., 23; Edmands v. Boston, 108 Mass., 535; Railroad Co. v. Railroad Co., 17 W. Va., 812; Hooper v. Railroad Co., 69 Ala., 529; Railroad Co. v. McFarlan, 43 N. J. L., 606; Matter of Railroad Co., 89 N. Y., 453; Fellowes v. City of New Haven, 44 Conn., 240; Gilbert v. Railroad Co., 69 Ga., 396; Young v. Harrison, 17 Ga., 30; Pusey v. City of Allegheny, 98 Pa. St., 522; Buckwalter v. Bridge Co., 38 Pa. St., 281.

Giving effect to the conclusions hereinbefore stated, it follows that the trial court did not err in admitting evidence bearing upon the question of a probable future-grade of the street; that the request to charge by counsel for the Village was properly refused, and that the charge of the court to the jury correctly stated the law of the case. Also, that the second ordinance, offered by the Village could have no legal bearing in determining the controversy.

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

Burket, C. J., Davis, Price and Crew, JJ., concur.


author: Bubket, C. J.

text:
    The Hamilton, Glendale & Cincinnati Traction Co. v. Parish.

      Consents of lot owners — To construction of street railways — Not property rights subject to law of eminent domain — '-But personal right at disposal of property owner — Municipal laio— Eminent domain — Personal rights.

    1. The consents of owners of lots abutting on a street, to the construction and operation of a street railroad on such • street, are not property rights that can be appropriated, under the power of eminent domain.
    2. Such consents are not property rights, but rights in their. nature personal to each owner of an abutting lot.
    3. Such personal rights were bestowed by the general assembly on owners of abutting lots, as a check upon the power of municipal authorities to authorize street railroads to be constructed and operated against the wishes of the owners of lots; on such street.
    4. The owners of abutting lots are free to give or withhold such; consent, upon such terms as to them severally may seem proper, and there is no public policy in this state against giving such consent for a valuable consideration moving from, the street railroad company to such lot owner.
    (Decided November 18, 1902.)
    Error to the Circuit Court of Butler county.
    Said defendant in error, as plaintiff below, filed his= petition in the court of common pleas, against said. plaintiff in error, and after the proper preliminary averments as to the incorporation of said company, his ownership of a lot on Third street, along which said company was about to build its street railroad, under an ordinance passed by the board of control of the city of Hamilton, averred as follows:
    “Plaintiff says that said ordinance is void and never went into operation for the reason that the written consents of the owners of more than one-half of the feet front of the lots and lands abutting on said Third street from High street to Maple avenue, for the construction of said railroad, were never obtained or filed with said board of control, and that therefore said board of control had no jurisdiction to pass said ordinance, and the franchise granted thereby is void.
    “Plaintiff further says that the written consents of the abutting property owners that were procured and filed by said defendant to the construction of said street railroad on said Third street, were procured by purchase for money or other valuable consideration, which inured to the exclusive benefit of the said abutting property owner, and that said written consents so purchased by money or other valuable consideration, were the consents of owners of lots and lands .abutting on said Third street, along Avhich it is proposed to construct said railroad, under said pretended ordinance, and that said OAvners immediately before ¡and at the time they so signed said written consents, were opposed to the construction of said street ■railroad along and over said route and in said street, and that they did not believe that the same so constructed over said route and on said street would be in the interest of themselves as property owners and of the public. That said abutters so signing for a consideration would not have signed said consent but for ¡said consideration so paid, or things furnished them for so consenting; that said considerations were substantial and in most instances large sums of money paid to obtain said consents. That said payments and promises were made by and on behalf of said defendant's company to said property owners, and plaintiff says that without the consents of said property owners, so obtained by purchase and other substantial considerations and promises, the consents of the owners of one-half of the feet front of the lots and lands ■abutting on said Third street along which it is proposed to construct said railroad, could not have been •obtained and presented to said board of control; that the opposition of said abutting property owners so receiving said consideration to the construction of ¡•said street railroad, was conscientious and in good faith.
    “Plaintiff further says, that before said ordinance was passed by said board of control granting said franchise, that members of said board of control who voted in favor of said ordinance, to-wit, Joseph J. Pater, C. E. Mason, Conrad Semler and Joseph. .Strategier, had knowledge of the fact that in order to secure the written consents of a majority of the feet front abutting on said Third street, said defendant had procured the same by purchase or other valuable consideration. Plaintiff therefore says that by reason of the premises that said ordinance is illegal, null and void.”
    Plaintiff below prayed that the construction and operation of said street railroad be perpetually enjoined.
    The traction company answered denying the material allegations of the petition, and after pleading the expenditure of over $85,000.00, justified as follows :
    “Defendant further admits and alleges the fact to-be that the said board of control of the city of Hamilton duly passed an ordinance granting and giving to this defendant the right to build said road along-said route on said streets; and in pursuance of said grant made by the said city of Hamilton, it is now-engaged in constructing its said route, and was so engaged when enjoined herein.
    “Defendant further says that the action of plaintiff is not brought in good faith as an abutting property holder and for the benefit and protection of his said property, but is brought solely in the interest of' rival street railroad companies, known as the Hamilton & Lindenwald Electric Transit Co. and the-Southern Ohio Traction Co., of which said plaintiff is a stockholder and director, and for the -purpose of preventing defendant from constructing its said track, and thereby preventing it from entering into-competition with the said Hamilton & Lindenwald Electric Transit Co. and the Southern Ohio Traction Co., and solely in the interest and at the expense of said ri-val street railroad plaintiff is maintaining this, action, and for no other purpose whatsoever.
    “Defendant further says that the citizens of Hamilton and the public in general are desirous for said road to be constructed; that the same will be of great, public advantage and benefit to the citizens and business men of the city of Hamilton, and that if said plaintiff should prevail in this action the same will be detrimental to the public interest, prevent defendant from constructing said road, and thereby deprive the citizens and people of Hamilton of the advantages and benefits of said street railroad line, and in addition thereto will cause a loss to this defendant of not less than $-by reason of the purchases as aforesaid made, the work done, obligations incurred, and defendant would be required to restore streets to their original condition.
    “Defendant further says it has constructed a line and has the same completed from the village-of Glendale, in Hamilton county, to the north corporation line of the city of Hamilton on East avenue, and that with the construction of the present line now proposed it wall be able to carry passengers direct from Third and High streets, in said city of Hamilton, to Fifth and Walnut, in the city of Cincinnati, without change of cars, and at a greatly reduced rate in fare and in a much shorter time than is now charged or consumed by the other company; and the same will be the only' route by which passengers can travel directly from Third and High streets, in Hamilton, to Fifth and Walnut, in the city of Cincinnati, without transfer or change of cars.”
    The substance of the reply is as follows: “He denies that this action is not brought in good faith. He denies that it is brought solely in the interest of rival street railroad companies known as the Hamilton & Lindenwald Electric Transit Co. and the Southern Ohio Traction Co., and for the purpose of preventing defendant from constructing its track and thereby preventing it from entering into competition with said street railroad companies; but avers that the action is brought in good faith by him as an abutting property holder and for the benefit and protection of his property.
    “He admits that he is one of the stockholders and directors of the Hamilton & Lindenwald Electric Transit Co., and the Southern Ohio Traction Co.”

      Upon trial in the circuit court on appeal, that court after finding that said O. Y. Parish is the owner of an improved lot on Third street, and that he commenced and prosecuted the action in good faith as an abutting property owner, found the further facts as follows :
    “The total frontage on Third street from High to Canal street, now called Maple avenue, is 760.50 feet; a majority of the feet front is 381 feet. Of this number property owners representing 232.90 feet voluntarily signed their consent to the construction of the road in Third street; that the consent of 39 feet was signed ‘Alexander Gordon, by J. L. Blair, his agent,’ subject to Alexander Gordon’s approval; and that said Alexander Gordon never, although duly notified, disapproved of said written consent, and is therefore deemed to have approved the same.
    “That the following written consents were procured by purchase for money consideration, to-wit:
    George Herold,...... 30.00 ft. |400 00
    Clement Snider,..... 20.00 ft.
    Caroline Snider,..... 25.00 ft.
    Pauline Schwartz,... 18.50 ft. 50 00
    Margaret Schwartz,. . 75.00 ft. 250 00
    Fred Fries, ......... 52.00 ft. 100 00
    220.50 ft.
    “And that when said written consents were filed with the board of control, to-wit, August 10, 1901, said board of control knew that the same had been procured by purchase.
    “The court also find that at the time of the commencement of this improvement up until August 9 and 10, 1901, when said consents were procured by purchase the said George Herold, Clement Snider, ■Caroline Snider, Pauline- Schwartz, Margaret Schwartz and Fred. Fries had been opposed to the ■construction and operation of said street railroad in and along and upon said Third street.
    “The court finds that at the time said ordinance was passed there was not on file with the city clerk, nor was there presented to the board of control the valid written consents of the owners of a majority of the feet front of the property abutting upon said Third street from High to said Maple avenue, because of said consents so purchased.”
    As its conclusions of law upon the above facts the court found:
    “First — That the plaintiff was entitled as an abutting property owner to maintain this action.
    “Second — The court finds as a conclusion of law that the said written consents procured by purchase ■of the abutting property owners are invalid, null and void and against public policy, and that the same can not be counted to determine the majority of the feet front on said street, and that therefore at the time .said ordinance was passed there was not produced and filed with said board of control the written consents of the owners of the majority of the front feet on said part of said Third street, and that said board of control never acquired jurisdiction, to pass said ■ordinance making said grant.”
    Proper exceptions were preserved throughout.
    The circuit court rendered judgment in favor of the plaintiff below against the traction company perpetually enjoining the construction of said street railroad on said part of Third street, and for costs. Thereupon the traction company came here seeking to reverse the judgment of the circuit court.

      Messrs. Burch & Johnson; Mr. M. O. Burns and Mr. J. W. Warrington, for plaintiff in error, cited and commented upon the following authorities:

      Neare v. Railway Co., 4 Dec., 475; 29 W. L. B., 171; Roberts v. Easton, 19 Ohio St., 86; White v. Railroad Co., 139 N. Y., 28; Military Academy v. Railway Co., 47 Atl. Rep., 892; Street R. R. Co. v. Cumminsville, 14 Ohio St., 523; Railroad Co. v. Smith, 1 O. S. C. D., 816; 41 W. L. B., 212; Railroad Co. v. Williams, 35 Ohio St., 168; Daily v. State, 51 Ohio St., 348; Bingham v. Doane, 9 Ohio, 165; Crawford v. Delaware, 7 Ohio St., 460; Railway Co. v. Lawrence, 38 Ohio St., 41; Schaible v. Railway Co., 6 Circ. Dec., 505; 10 C. C. R., 334; Makemson v. Kauffman, 35 Ohio St., 444; Richardson v. Mellish, 2 Bing., 252; Steamship Co. v. McGregor, A. C., 45; In re Mirams, 1 A. B., 594; Railway Co. v. Cox, 55 Ohio St., 515; Jacobs v. Tobiason, 65 Ia., 245; Maguire v. Smock, 42 Ind., 1; Howard v. First Church, 18 Md., 451; Smith v. Applegate, 3 Zab., 352; State v. City of Elizabeth, 25 N. J. L., 351; Low v. Railroad Co., 46 N. H., 293; Howden v. Simpson, 10 Adolph. & E., 793; Simpson v. Howden, 9 Clark & Fin., 61; Vauxhall Bridge Co. v. Spencer, 2 Mad., 356; Edwards v. Railroad Co., 1 M. & C., 650; Railway Co. v. Hawkes, 5 H. L. Cas., 331.

      Messrs. Shepherd & Shaffer; Mr. C. R. Hartkopf; Messrs. Shotts & Millikin and Mr. H. R. Probascoy for defendant in error, cited and commented upon the following authorities:

      Roberts v. Easton, 19 Ohio St., 78; State v. Bell, 34 Ohio St., 197; Makemson v. Kauffman, 35 Ohio St., 444; White v. Railway Co., 139 N. Y., 19; Railroad Co. v. Williams, 35 Ohio St., 171; Daily v. State, 51 Ohio St., 348; Bingham v. Doane, 9 Ohio, 165;
      Crawford v. Delaware, 7 Ohio St., 460; Railroad Co. v. Cumminsville, 14 Ohio St., 523; Railway Co. v. Lawrence, 38 Ohio St., 41; Schaible v. Railway Co., 6 Circ. Dec., 505; 10 C. C. R., 348; Simmons v. Toledo, 4 Circ. Dec., 69; 8 C. C. R., 535; Neare v. Railroad Co., 4 Dec., 475; 29 N. P., 171; Glidden v. Cincinnati, 4 Dec., 423; 30 N. P., 213; Doane v. Railroad Co., 160 Ill., 22; Marshall v. Railroad Co., 57 U. S., 314; Liness v. Hesing, 44 Ill., 113; Burk v. Child, 88 U. S., 21; Oscanyan v. Arms Co., 103 U. S., 261; McGuire v. Smock, 42 Ind., 1; Railroad Co. v. Shea, 67 Ia., 728; State Keene v. Elizabeth, 35 N. J. L., 351; Smith v. Applegate, 23 N. J. L., 352; Military Academy v. Railroad Co., 47 Atl. Rep., 890; State v. Atlantic City, 48 Atl. Rep., 615; Railroad Co. v. Detroit, 12 C. C. A., 365.
   Bubket, C. J.

The contention in the pleadings and finding of facts as to whether Mr. Parish brought -and prosecuted the action in good faith, is of no importance, because if he had a legal right which he sought to protect by an action in a court of justice, the motive which induced him to bring the action cannot be inquired into. To sustain his action, if brought in good faith, and defeat it if brought in bad faith, would be to control his morals by means of a law suit. That cannot be done. Unless restrained by statute, a man may direct his moral conduct as he pleases. In State ex rel. v. Board of Education, 35 Ohio St., 368, the following appears on page 382: “If it is apparent that the relator is legally capable of prosecuting this proceeding, and that he has a clear legal right to the remedy he is seeking, we cannot stop to inquire whether he is moving of his own volition, or at the request of some third party.” To the same effect is Lewis v. White, 16 Ohio St., 444; Frazier v. Brown, 12 Ohio St., 294; and Letts v. Kessler, 54 Ohio St., 73. And it can make no difference whether his right is clear or not, only so that it exists.

The fee of the land occupied by highways outside of municipalities is in the owner of the adjoining lands. Railroad Co. v. Williams, 35 Ohio St., 168; Daily v. State, 51 Ohio St., 348; Phifer v. Cox, 21 Ohio St., 248; and Callen v. Electric Light Co., 66 Ohio St., 166.

But in municipalities the fee of the streets is in the city or village, in trust however for street purposes. Section 2601, Revised Statutes; S. & C., 1083; Street Railway v. Cumminsville, 14 Ohio St., 523; City of Columbus v. Agler, 44 Ohio St., 485; and Callen v. Electric Light Co., 66 Ohio St., 166.

The fee being in the municipality in trust for street purposes, the abutting lot owner, in addition to his easement in the street for passage and repassage in common with the general public, has a special easement in the street appendant and appurtenant to his lot for ingress and egress; and when the street becomes vacated the public thereby surrenders, or more properly speaking, legally abandons the public use thereof for travel, but the private or special use or easement, adheres to the abutting lots, and becomes part and parcel of them as by accretion, so as to preserve the right of ingress and egress to the lots over the land that formerly formed the street or part thereof. The reason that a street when vacated, becomes a part of the abutting lots, is not because the owner of the lot owned the fee of the street, but because it must go there by necessity, to preserve his easement of ingress and egress, which in many cases is a valuable property right, and without- which the lots might he of little value. The street being vacated and abandoned, the public no longer owns it, and it must either revert to the original owner, or adhere to the abutting lots as by accretion. As the original owner is presumed to have received full value for the street when he sold the lots, there is no just reason why he should have the street, when vacated, restored tó him. And as the lot owners and those in the line of title have paid an increased price for lots by reason of the easement in the street, it is only just that when the street becomes vacated,, the easement should be preserved to them by adding the vacated street to the lots, and therefore this doctrine of accretion in such cases has been adopted in this state, and generally elsewhere.

While the abutting lot owner has this right of public travel on the street, and the right of ingress and egress from the street to his lots, the public authorities retain the right to improve the street, and place such means of travel thereon as in their judgment shall best conserve the public welfare. And so long as his easement of ingress and egress is not materially injured, he is without remedy, because he is not wronged, said easement — all the property right he has in the street — not being interfered Avith. If, however, his easement of ingress and egress should be materially injured by the building and operation of the street railroad, then he must be first fully compensated for such injury. This in substance is the holding of this court in Street Railroad v. Cumminsville, 14 Ohio St., 523, and subsequent cases on this subject. His easement of ingress and egress being the only property right he has in the street, the city authorities had the power, under the constitution, to construct and operate a street railroad on and along the street without his consent and ¿gainst his will, unless restrained by statute, provided they caused no material interference with his easement of ingress and egress.

The general assembly at an early day foresaw that the public authorities, in the exercise of the power to grant franchises for street railroads with a liability to make compensation only in cases of interference with the property right of ingress and egress, might act oppressively, or against the wishes of the abutting lot owners, and therefore imposed a further check upon that power, and required that the consent in writing of the owners of a majority of the feet front-on the street should be obtained and produced to the proper officer. This was done, as held by this court in Roberts v. Easton, 19 Ohio St., 86: “To protect owners of property on the streets of cities * * * from the exercise of arbitrary power on the part of the city authorities in permitting the streets to be used for street railroads.”

But this additional check did not have the effect to vest the fee of the street in the abutting lot owner, nor to give him a right to compensation unless his easement of ingress and egress should be injured. It therefore gave him no more property rights than he had before the statute as to such consents was enacted.

Such consent is therefore not a property right adhering to the lot, but is a personal right in the owner of the lot, a power or sword in his hands with which to protect his lot against the arbitrary powers of the city authorities. A majority of consents by the feet, front is a condition precedent to jurisdiction to pass a street railway ordinance, and each abutting lot owner is free to aid in conferring such jurisdiction, and free to withhold such aid. His actions cannot be controlled in that regard by others on the street, nor by courts of justice in their behalf. Such a condition, such consent, in the nature of things cannot be appropriated under the power of eminent domain. The consent must be given or withheld at the option of the lot owner. He cannot be forced to give it, nor forced to withhold it. Section 3439, Revised Statutes, provides for this written consent, and it imposes no conditions or restrictions, but leaves the lot owner free to give or withhold his consent. And section 3440 goes further and provides that: “Nothing herein contained shall affect the rights of property owners to give or withhold their consent.” So that our statutes, while granting this power of consent, and providing for the giving or withholding of the same, impose no conditions or limitations on such power, but expressly provide that the statutes shall not affect the rights of property owners to give or withhold such consent. We cannot approve the Illinois cases on this question, but regard the New York and New Jersey cases on the question as stating the correct rule.

As the general assembly while having the subject before it, imposed no conditions or limitations upon the exercise of this power, can this court amend the statute by construction, and add conditions or limitations not imposed by the legislature? We think not. In some other like statutes the general assembly has imposed conditions and limitations, and if it had regarded them necessary in this statute, it Avould have inserted them into the act, as was done in the Two-Mile Pike act, now Section 4.836, Revised Statutes. It is therefore clear that the general assembly did not regard it Avise or necessary to impose conditions or limitations upon the exercise of the-power of consent in such cases.

But it is urged that outside of the statute and independent of it, the purchase of such consents for value is against public policy, and this seems to be the ground upon which the circuit court based its. judgment; because that court found as a conclusion of law that the “consents procured by purchase are invalid, null and void and against public policy.” As they are not shown to be defective in form or substance, and are not prohibited by statute, there can be no reason for holding them “invalid, null and void,” unless they are against public policy. We will therefore address ourselves to the matter of public policy, as the case was argued here upon that ground.

In Probasco v. Raine, 50 Ohio St.. 378, this Court held: “If a statute is constitutional, it is valid, and cannot be set aside by a court, as being against public policy or natural right. There can be no public policy or right in conflict with a constitutional statute.”

In the case at bar the effort is not to invoke public policy to override a valid statute, as was attempted in the Probasco case, but rather to bring forward a public policy to supply a rule of decision as to a statutory matter as to which the general assembly has. been purposely silent.

In Vidal v. Girard, 2 How., 127, a case from Pennsylvania, the Supreme Court of the United States, laid down the rule as to public policy in such cases as follows: “Nor are we at liberty to look at general considerations of the supposed public interests and policy of Pennsylvania upon this subject, beyond what its constitution and laws and judicial decisions make known to us. The question, what is the public policy of a state, and what is contrary to it, if inquired into beyond these limits, will he found to be one of great vagueness and uncertainty, and to invoke discussions which scarcely come within the range of judicial duty and functions, and upon which men may and will complexionally differ. * * * We disclaim any right to enter upon such examinations, beyond what the state constitutions, laws, and decisions necessarily bring before us.”

No decision of this Court is cited, and we know of' none, recognizing or establishing the public policy contended for in this case, and we think it safe to hold that there is none. Under a system like ours, where the fundamental rights of the people are defined and guarded by a written constitution, where all crimes; are statutory, and our civil rights and procedure also? regulated by statutes, there is but little room for public policy, outside of our statutes and constitution. In this regard our system is very different from that of England where the doctrine of public policy in earlier days had a wide scope, and from which it was; brought to this country, and has often been indis- ■ criminately applied by courts here without observing; the distinction between the systems of the two countries.

The Supreme Court of the United States in the.Girard Will Case, supra, states the rule as to public policy correctly, and tested by that rule we find nothing in our constitution, statutes, or decisions, sustain!ing the public policy contended for.

It is urged that to purchase consents for value is a species of bribery, and an expression to that effect in Makemson v. Kauffman, 35 Ohio St., 444, is cited and. relied upon. But upon turning to our bribery statute, we do not find it to cover the case, and as we have . no common law crimes, but all defined by statute, we must conclude that such purchase of consents is not a species of bribery, because under our system what is not prohibited is tolerated. Again title one, chapter 8 of our penal code, from section 6929 to 7017 is devoted to “Offenses Against Public Policy,” and it is only fair to presume that if the general assembly had intended to prohibit the purchase of such consents, it would have done so in this chapter 8, or in the street railroad sections.

It is also urged that the abutting lot owners as to these consents, act in a public capacity, or perform a public function, and that they must therefore act from pure motives for the benefit of the public, or at least for the good of all on the street, and that their action for or against the street railroad cannot be influenced by considerations of gain, and some cases are cited supporting this view. But here again we are asked to amend the statutes by construction, and to create a public policy which is not deducible from our constitution and statutes. This Court cannot control the morals of litigants unless so provided by statute. And when the evil results flowing from a given course of conduct, have not been of a grave . enough character to attract the attention of the gen ■.eral assembly, this Court cannot, by construction, •¿provide a new remedy under the plea of public policy.

The cases cited by counsel on both sides have been fully considered, but their review has not been found necessary in this opinion. The reporter will cite them in his report of the case.

With this view as to such written consents, the questions growing out of section 3439a, 95 Ohio Laws, 475, are immaterial, and are not here decided.

The judgment of the circuit court will he reversed, and judgment entered upon the finding of facts in favor of the plaintiff in error.

Judgment reversed and judgment for plaintiff in error.

Spear, Davis, Shauck, PRiCE*and Crew, JJ., concur.