author: Bradbury, J.

text:
    Shahan, Ex'r, et al., v. Swan.
    Statute of 1P,auds-Paro~ Comtracts-Part Perfo,'mance-Evidenee of-Practice-

    1. A parol contract, the consideration being indivisible, which provides that one person shall, upon the death of another, succeed to all the property of the latter, is entire, and, if the estate consists of real as well as personal property, relates to an interest in lands, and, on that ground, is within the operation of the statute of frauds.
    2. Upon the trial of an action to enforce the specific; performance of a parol contract to convey land, or an interest therein, it is not error to admit parol evidence of the terms of the contract, before proof of its part performance has been made.
    3. While evidence, consisting, alone, of the declarations of a deceased person, made to third persons, of the terms of a parol contract to convey land, sought to be specifically enforced against his heirs and representatives, should receive careful scrutiny; nevertheless, if sufficiently definite, it may authorize the trial court to determine what the terms of the contract are.
    4. Where a parol contract to convey an interest in lands is attempted to be withdrawn from the operation of the statute of frauds, by proof of its part performance, the acts of part performance, to be sufficient for that purpose, must be of themselves clearly referable to some contract between the parties relating to the property in dispute.
    (Decided January 13, 1891.)
    Error to the Circuit Court of Knox county.
    The defendant in error, by an action brought by her in the Court of Common Pleas of Knox county, Ohio, sought to have herself adjudged to be “ the owner and entitled to the possession of the property, real and personal, coming from', and belonging to, the estate of” James E. Woolbridge, deceased.
    The record does not disclose the proceedings had in the court of common pleas; the action, however, was appealed to the Circuit Court of Knox county, where it was tried at the October term, 1886, and a decree rendered for the defendant in error, substantially as prayed for in her petition.
    The circuit court, at the request of the plaintiffs in error stated, separately, its findings of fact, and its conclusions of law; and the cause is now before this court for review on those findings and conclusions.

      H. H Greer and Dirlam Leyman, for plaintiff in error,
    cited and commented on the following statutes and authorities. Section 4198, Rev. Stat.; 1 Ohio, 252; 8 H. L. App. Cas. 467; 2 Shoals & Lefloy, 1; Dale v. Hamilton, 5 Hare 369; Southerland v. Riggs, 1 Hare 26; Frome v. Dawson, 14 Vesey 386; Sutton v. Shipp, 65 Mo. 297; 1 Johns. Chan. 131; Morphett v. Jones, 1 Swanton 172; Allen v. Chambers, 4 Ired. 1; Foster v. Hale, 3 Ves. 712; Howard v. Brower, 37 Ohio St. 402; Gunter v. Halsey, Amb. 586; Coath v. Jackson, 6 Ves. 38; Harris v. Knickerbocker, 5 Wend. 638; Carlisle v. Fleming, 1 Harring. (Del.) Chan. 421; Ellis v. Ellis, 1 Des. Chan. 18; Willis v. Stradling, 3 Vesey 378; Ex parte Hooper, 19 Ves. 479; Breman v. Bolton, 2 Dr. and War. 349; Anderson v. Chick, 1 Bailey Ch. 118; Jarvis v. Smith, 1 Hoff. Ch. 470; Lord v. Underdunk, 1 Sand. Ch. 46; Hatcher v. Hatcher, 1 McMullins Ch. 311; Castow v. Thompson, 3 Green’s Ch. 59; McMurtie v. Bennett, Harrington’s Ch. (Mich.) 124; Stoddard v. Tick, 4 Md. Ch. 475; Semmes v. Worthington, 38 Md. 298; Bryne v. Romenne, 2 Edward’s Ch. 445; Lacon v. Mertains, 3 Atk. 4; Buckmaster v. Harrop, 7 Ves. 341; Linsey v. Lynch, 2 Sch. & Lef. 1; Parker v. Smith, 1 Coll. Ch. 624; Rathburn v. Rathburn, 6 Barb. 98; Fry v. Small, 19 Pa. St. 461; Wallice v. Rappleye, 103 Ill. 229; Wood v. Evans, 113 Ill. 139; Wallace v. Long, 105 Ind. 522; Myers v. Crosswell, 45 Ohio St. 543; Thynne v.
      Lord Glengal, 6 H. of L. 158; Brewer v. Wilson, 17 N. J. Eq. 180; Whitridge v. Parkhurst, 20 Md. 62; Murdoff v. Howard, 4 Md. 459; Aday v. Echols, 18 Ala. 353; Smith v. Crandal, 20 Md. 482; Burton v. Smith, 40 N. H. 352; Williamson v. Williamson, 4 Ia. 279; Owings v. Baldwin, 8 Gill, 337; Hart v. Carroll, 85 Pa. St. 508; Hertzog v. Hertzog, 34 Pa. St. 418; Graham v. Graham, 34 Pa. St. 475; Simons v. Worthington, 38 Md. 299; Underdorf v. Kilbourn, 4 Md. 463; Black v. Card, 2 H. & G. 100; 4 Gill, 475; Evans v. Lee, 12 Nev. 393; Peckham v. Barker, 8 R. I. 17; Hunt v. Roberts, 40 Me. 187; Reynolds v. Warring, 1 Younge, 346; Wright v. Puckett, 22 Grat. 270; Miller v. Cotton, 5 Geo. 341; Lisk v. Sherman's Executors, 25 Barb. 433; Crabill v. Marsh, 38 Ohio St. 331; McCue v. Johnson, 25 Pa. St. 306; Bash v. Bash, 9 Barr, 260; Candoer App., 5 W. & Ser. 515; Sanders v. Wagonseller, 7 Harris, 248; Lantz v. Frey, 7 Harris, 366, 475; Edwards v. Margew, 100 Pa. 330; Lee v. Polk, 21 Howard, U. S. 495; Ackerman v. Fisher, 57 Pa. St. 475; See. 6113, R. S.; 20 Pick. 2; 38 Ohio St. 413; 3 Wash. C. C. 122; 41 Ohio St. 417; 2 Ohio St. 156; Miller v. Cotton, 5 Ga. 341; Holt v. Rice, — N. H. 308; White v. Brocaw, 14 Ohio St. 337; Melick v. Darling, 11 Ohio 343; Huston v. Cone, 24 Ohio St. 11; Wallace v. Long, 105 Ind. 522; 34 Pa. St. 418; 19 N. Y. 299; Montague v. Garnett, 3 Bush. 297; 84 Pa. St. 479; 25 Bush. 433; Howe v. Goodrich, 37 N. Y. 185; 31 Ohio St. 579; 30 Ohio St. 184; 27 Ohio St. 121; Wilkinson v. Heavenrich, 58 Mich. 574; Glass v. Hulbert, 102 Mass. 24; 38 Ohio St. 338; 66 N. Y. 227.

      Theodore Hall, for plaintiff in error,
    also filed a brief in the case, but cited no additional authorities to those given above.

      Critchfield Graham, for defendant in error,
    cited and commented on the following statutes and authorities. Holman v. Johnson, Cowp. 343; Railroad Co. v. Railroad Co., 16 Beav. 99; Clark v. Bayer, 32 Ohio St. 299; Wood on Master and Servant, par. 22, 24; James v. Gleghorn, 54 Geo. 10; Bentley v. Terry, 59 Geo. 555; Robertson v. Armstrong, 12 Barb. 549: Wright v. Wright, 5 Mass. 109; Goerlitz v. Barnitz, 4 Brewster, 509; Bonnett v. Bonnett, 61 Ia. 199; Commonwealth v. Fee, C. S. & R. 255; Hudson v. Hills, 8 N. H. 419; People v. King, 6 Barb. 366; Carpenter v. Whiteman, 15 Johns. 208; Osborn v. Allen, 2 Dutch., N. J., 388; Matter of Bodge, 1 Clark, Chan., 184; Fry on Spe. Per., 3 Ana. ed., par. 558; Pora, on Spe. Per., sec. 107; Waterman on Spe. Per., par. 263; Fry on Spe. Per., par. 182; Waterman on Spe. Per., par. 54, and-notes 1 and 2, page 78 ; Fry on Spe. Per., par. 579; Pomeroy on Spe. Per., sec. 118; Idem, sec. 105; Fry on Spe. Per., par. 164; Story’s Eq. Jur., par. 761. Wilber v. Payne, 1 Ohio, 251. See also authorities cited in note 1, of Fry on Spe. Per., par. 291; Carbill v. Marsh, 38 Ohio St. 333; Pom. on Spe. Per., sec. 114, Fry on Spe. Per., par 40, 45 and 46; Idem, par. 562, 563; Parsons on Con., vol. 3, par. 395; Browne on Stat. of Fr., par. 438; Cotton v. Cotton, L. R. I. Ch. 137; Wheeler v. Reynolds, 66 N. Y. 227; Levi v. Brush, 45 N. Y. 596; Pom. on Spe. Per., sec. 260; Pom. on Spe. Per., sec. 114; and see cases in note (1), page 162, and note (1), page 163; Rhodes v. Rhodes, 3 Sandf. Ch. 279; Waterman on Spe. Per., par. 269; and see notes (3 and 4), page 368; Pom. on Spe. Per., sec. 117 ; Waterman on Spe. Per., par. 270; see authorities cited in note (1), page 170; Crocker v. Higgins, 7 Com. 342; Taft v. Taft, 73 Mich. 502; Peck v. Peek, 77 Cal. 106. See cases cited in Freeman’s notes to Johnson v. Hubbell, 66 Am. Dec., page 784; Fry on Spe. Per., par. 554, and note (J), page 281; Reid on the Statute of Frauds, vol. 2, see. 595; Schouler on Wills, par. 455; Parsons on Cont., par. 406; Story’s Eq. Jur., vol. 1, par. 785; Goilmere v. Batterson, 1 Vern. 48; Pom. on Spe. Per., note (2), page 268; Frisby v. Parkhurst, 29 Md. 59; Wright v. Tinsley, 30 Mo. 369; Bolman v. Overall, 80 Ala. 451; Johnson v. Hubbell, 2 Stock. Ch. 332; Parsed v. Stryker, 41 N. Y. 480; Todd v. Weber et al, 95 N. Y. 181; Van Dyne v. Vreeland, 11 N. J. Eq. 370; 12 N. J. Eq. 143, Gupton v. Gupton, 47 Mo. 37; Sutton v. Hayden, 62 Mo. 101; Davidson v. Bavidson, 13 N. J. Eq. 246; Berry v. Graddy,
      1 Metz. Ky. 553; Sharkey v. McDermott, 91 Mo. 647; Wright v. Tinsley, 30 Mo. 389; Van Tine v. Van Tine, Central Reporter, vol. 8, page 354; Pom. on Spe. Per., sec. 477; Pom. on Spe. Per., sec. 166; Waterman on Spe. Per., par. 199; Ball v. Oouter, 40 Cal. page 63; Roberts v. Hall, Canada Law Journal, vol. 18, 328; L. R. 7 Q. B. D. 181; Seager v. Barnes, 4 Minn. 141; Allen v. Corro Cordo R. R. Co., 40 Iowa 348; Waterman on Spe. Per., par. 54; Fry on Spe. Per., par. 424; Waterman on Spe. Per., par. 179; Pom. on Spe. Per., sec. 194; and see note (2), page 273, and note (1), 274; Pom. on Spe. Per., sec. 195; Wood v. Evans, 113 Ill. 136; Fry on Spe. Per., par. 972; Waterman on Spe. Per., par. 126 ; Pom. on Spe. Per., sec. 293; Fry on Spe. Per., par. 361; Pom. on Spe. Per., sec. 137, 296; Watei’man on Spe.- Per., par.. 128; Fry on Spe. Per., par. 609; Andrews v. Andrews, 28 Ala. 432; Bayless v. Picture, 24 Wis. 651; Thompson v. Stevens, 71 Penn. St. 161; Story’s Eq. Jur., vol. 1, par. 786; Logan v. Wienholt, 7 Bligh. R. 53 and 54; Sharkey v. McDermott, 91 Mo. 647; Barkworth v. Young, 4 Brew. 1; Waterman on Spe. Per., par. 131; Wallace v. Long, 105 Ind. 522; Todd v. Weber, 95 N. Y. 181; Fenton v. Emblers, 3 Burr. 1278; Wells v. Horton, 4 Bing. 40; Gilbert v. Sykes, 16 East. 150; King v. Hanna, G. B. Mon. 369; Peters v. Inhobs, 19 Pick. 365; Blake v. Cole, 22 Pick. 97; Howard v. Bergen, 4 Danna. 137; Lees v. Hale, 10 Wend. 426; Clark v. Pendleton, 20 Conn. 495; Doyle v. Dixon, 97 Mass. 209; Waterman on Spe. Per., par. 93-6; Fry on Spe. Per., par. 606; McCue v. Johnson, 25 Pa. St. 306; Ackerman et al. v. Fisher et al., 57 Pa. St. 547; Eckert v. Mace, 3 Penn. R. 365; Poorman v. Kilgore, 2 Casey 372; Edwards v. Margrew, 100 Penn. St. 330; Poorman v. Kilgore, 2 Casey 372; Waterman on Spe. Per., par. 285; Brown v. Sutton, 129 U. S. 238.

      Estep & Dickey, for defendant in error
    also filed an elaborate brief citing and commenting upon the same cases as their associate counsel.

      Sehoyn N. Owen and W. W. Boynton, also, argued the case orally, for the defendant in error.
   Bradbury, J.

The pleadings in the action, together with the findings of the court, show that Mary J. Swan, the defendant in error, in the year 1840, being then about two years old, and living-with her mother, a woman in humble circumstances, near Worthington, Ohio, attracted the notice of James E. Woodbridge and his wife, who resided in Mt. Vernon, Ohio, were in prosperous circumstances, childless, and without expectation of children being born to them; that the Woodbridges, then visiting at Worthington, entered into negotiations with the mother respecting her said child, which resulted in the' mother yielding to them the person of the child, and their carrying her home with them on their return; that they gave their name to the infant, and entered in their family Bible her birth, as their own offspring; that they reared her tenderly, taught her to believe that she was their child by birth, and carefully educated her; that when she reached a suitable age they introduced her into society as their own daughter; that she was an affectionate and dutiful child, and in all respects discharged the duties of a daughter, and continued to reside in the family until her marriage, at which ceremony she was given away by James E. Woodbridge as his daughter; that in August, 1874, James E. Woodbridge died intestate, having made no provision for the defendant in error, and his property, real and personal, passed to his wife who survived him a few months, and who, by will, made some provision for defendant in error, but. devised to others the bulk of the property that came to her from her husband, said James E. Woodbridge.

The questions made during the progress of the action in the circuit court are numerous, and many of them interesting, most of which have been elaborately and ably presented to this court, in the briefs of counsel. However, according to the view we have taken of the case, it has not been found necessary to discuss or determine all of them, and we have therefore confined ourselves to such of the questions as we deemed most material in deciding the cause.

We are confronted at the door of the inquiry in this case with the question, whether the contract set up in the petition, even had it been in writing and signed by the party to be charged with its performance, created such a right, or interest in his estate, as to entitle defendant in error to its specific performance, or whether it is not rather to be regarded as partaking of the nature of a personal agreement, the violation of which would only entitle the party aggrieved to an action for damages. The contract provides, generally, that she shall be made the heir of Mr. Woodbridge, and shall succeed to his property at his death. It can hardly be contended that this created an estate or interest in her, to or in the particular parcels of property, real or personal, owned by him at the time it was made, or that any such interest or estate attached to specific parcels of after-acquired property, as it may have been successively acquired by him; if so, he would have been deprived of the power of disposing of it so as to bar her right except to one who might take for value and without notice. This cannot reasonably be supposed to have been within the contemplation of the parties. Neither does any plan seem to have been in the minds of the parties by which this heirship and succession should be brought about. It could not be done by the laws of descent, for there was then no statute authorizing an adoption; only heirs by blood could acquire property in that way. Did they contemplate a will or some conveyance, in escrow perhaps, to be , delivered and become operative upon the death of Mr. Wood-bridge? Did they foresee or intend the consequences that either method would have on the rights of Mrs. Woodbridge ? To these questions no answer can be returned; not even the slighest cue to their solution can be found in the history of the transaction.

If the contract created a personal obligation only, then its breach would entitle the party injured, not to its specific performance, but to an action for damages, measured by the value of the estate she should have succeeded to, in which case the action should have been brought against the estate of James E. Woodbridge, after the claim had been presented and rejected, and would be subject to the limitation in favor of executors and administrators provided in section 6113, Revised Statutes. While the determination of this question— whether the contract is one that, in any event, would be specifically performed — against defendant, would be decisive of the case, we prefer to place the decision upon the determination of another question, equally decisive, and about which we have no doubt.

If the contract should be treated as divisible, so that, to the extent which it related to the personalty, no'note or memorandum in writing would be required by the clause of the statute of frauds, relating to the sale of lands, and be held to be capable of performance within a year, so as not to be obnoxious to the clause' of the statute relating to contracts, not so capable of performance, then the omission of Mr. Woodbridge, to provide for her succession to it, is but the breach of a contract relating to personalty, which can be compensated in damages, and she would have a claim against his estate for the amount thereof, which, as has already been seen, must have been presented to his personal representative before an action could be brought, and would be subject to the four years’ limitation provided in section 6113, Revised Statutes.

The action before us, however, is not of that character, but is, in all essential particulars, one for the specific performance of the contract set forth in the petition ; and that contract, we think, is entire. Whatever the defendant in error and her mother were to do, applied equally to every part of that which the Woodbridges were to perform, and, as it concerns an interest in lands, it is required by the statute of frauds to be in writing, subject, of course, to the rule that permits certain acts of part performance to withdraw it from the operation of the statute.

The circuit court, on the trial of the action, admitted, over the objections of plaintiff in error, parol testimony of the terms of the alleged contract, before evidence was introduced showing acts of part performance. This, it is claimed, is error, for which the judgment should be reversed. In support of this view they cite the cases of Lindsay v. Lynch, 2 Sch. & Lefroy, 1; Maddison v. Alderson, 8 L. R. App. Cases, 467; Dale v. Hamilton, 5 Hare, 369, and some others, as well as the most distinguished text-writers on the subject of the specific performance of contracts. The authorities are too numerous to render practicable their review in detail, but an examination of them will show that the order in which evidence should be admitted was not under discussion, but rather the effect to be given to it when received, and the holdings and opinions were, that parol proof of the terms of the parol contract should not be considered as affecting the rights of the parties until part performance of the contract had been established. The statement of the case, as well as the language used by the chancellor in the case first cited (Lindsay v. Lynch, 2 Sch. & Lefroy, 1), discloses that the parol evidence of the contract had in fact been admitted. The lord chancellor (Lord Redesdale), saying, “ The statute' of frauds prohibits my entering into the evidence of Blake on the subject; ” Blake having already testified to the terms of the parol contract in dispute.

In practice, it would be impracticable to defer hearing parol evidence of the terms of a parol contract respecting land, until the court ascertained that it had been partly performed; it would involve the necessity of hearing the case in detail, and considering one branch of the evidence before the remainder of it was admitted at all. And, whatever the rule may be elsewhere, in Ohio the practice is to permit a party to introduce all the evidence he can produce, that is pertinent to the issue on trial, the order of its introduction to be determined by the court in the exercise of a sound discretion.

One of the facts in issue, on the trial in the circuit court, was whether a contract had been made as set forth in the petition. The evidence objected to and admitted over the objection, was pertinent to that issue, and, therefore, admissible in the first instance, though it could have no effect until the contract had been taken out of the operation of the statute of frauds, by proof of part performance.

The principal contention had in the circuit court, over the facts of the case, was in respect to proof of the parol contract set forth in the petition, the defendant in error contending that she was given to the Woodbridges, by her mother, under a contract to the effect, that if her mother should forever renounce all claim and right to her care and custody, and keep secret the fact of her motherhood, Woodbridge and wife would adopt and keep her as their own child and heir, and that, at the death of said James E. Woodbridge, she should succeed to the title and possession of all his property. On the other hand, plaintiffs in error contended that the Woodbridges, desiring an object upon which to bestow their affections, and influenced by feelings of benevolence, and sympathy for her unfortunate condition in life, relieved her mother of the burden of her care and maintenance, as an act of pure charity, without entering into any contract in respect thereof.

The circuit court determined this contention in favor of the defendant in error, finding from the evidence that she was taken by the Woodbridges, maintained and educated by them, pursuant to the contract asserted by her.' Counsel for plaintiffs in error earnestly and vigorously urge this court to review that finding. They insist that the arrazzgement, whatever it may have been, was by parol; that no living witness to its tezms was produced at the trial; that both of the Woodbridges were thezz dead, and the mother had not been heard from for forty years, and that the only evidence of its terms were the declarations of Woodbridge, made more than forty years before the trial, and since carried in the memory of persons having no interest izi the matter, and who had reached an extreme old age at the time they testified. These statements of counsel are borne out by the record. We do not doubt the soundness of the propositions that evidence of this character is frequently unsatisfactory, and at all times requires careful examinatiozz azzd close scrutiny; and that estates of deceased persons should not be diverted from their lawful channels of descent by other than convincing evidence. But we know of no absolute rule of law that, in this state, limits the effect to be given to the evidence of the declarations made by deceased persons. That, like all other evidence, should receive the credit that inherently belongs to it; neither more nor less.

The duty, however, of hearing and considering the weight of the evidence and determining questions of fact, is not cast upon this court by the statutes of the state, defining and prescribing its duties, but is thrown upon the circuit court in cases of the character of the one before us. We must assume that the circuit court approached the performance of its duty in this particular, fully comprehending the danger to be apprehended from the class of testimony on which defendant in error relied to support her petition; and, that the court, knowing that the tenor of the evidence of even an honest witness might be entirely changed by the lapse of a word or sentence, during the thirty or forty years that elapsed between his hearing Mr. Woodbridge’s statement and his repeating it on the witness stand, gave to such evidence all the scrutiny its nature required. And, further, we must also assume that that court comprehended the danger that waits upon all attempts to divest the heir of his inheritance, by diverting the descent of estates, from their regular and legal channel, by other than convincing evidence. That court had the witnesses before it, observed their deportment, gauged their intelligence, and was possessed of all those other advantages that attend a court placed face to face with the witness undergoing examination. Evidence that seems extremely slight to a tribunal having before it only the written statement of a witness, may be reasonably satisfactory to one who had the witness before it in person.

The court however will, in a proper case, examine the evidence in a case before it to determine if there was any evidence to support the finding of the trial court. We did so in this case; and the bill of exceptions discloses evidence, which, if believed in the exact terms in which it was delivered, is sufficient to support the finding in this particular.

The circuit court also found “ That such part performance was had of such contract, by the parties thereto, and by the plaintiff, in the rendition of such service and the performance of such duties as to take the case out of the operation of the statute of frauds.” The acts found by that court and held by it to constitute part performance of the contract, are as follows :

“ That the mother of the plaintiff, in pursuance of said contract surrendered the care, custody, control and education of the plaintiff to said James E. Woodbridge when she was about two years of age, and forever concealed from the plaintiff the fact of her motherhood, and wholly gave up its society and custody; and the said James E. Woodbridge continued the care, custody, control and education of the plaintiff until she became of age, and thereafter she continued to live in his family, continuously bestowing on said James E. Woodbridge and Lydia, his wife, all the affection and performing all the services of a daughter until she was, by said James E. Woodbridge, given away as his daughter in marriage in the year 1870. The said James E. Wood-bridge and Lydia, his wife, carefully concealed from, said plaintiff the fact that she was not their daughter, the said Lydia breaking the news of that fact to her for the first time on the day after said James E. Woodbridge was buried.
“ The court further find that the plaintiff, during all those years, was kind, affectionate and obedient to both the said James E. Woodbridge and Lydia, his wife, and did perform about the house those domestic services, did render those domestic duties, and did perform those offices of kindness and affection which a daughter usually renders for parents to whom she is attached or bound by the ties of blood and affection; that said James E. Woodbridge entered in the family Bible the name ‘Mary J. Woodbridge, born Feb. 2, 1888,’ as the designation of parentage and date of birth of said plaintiff.”

A large proportion of the elaborate briefs of counsel is devoted to the discussion of the sufficiency of these acts to con-statute such part performance of the contract as will take it out of the statute of frauds. The adjudications- upon the subject are innumerable, and not always in harmony with each other, and they have been supplemented by the reasonings of a large number of able text writers. The authorities in the main, if not exclusively, support'two rules upon the subject, the more strict of which requires the acts of part performance to be referable to the contract set up, and to no other one. Lindsay v. Lynch, 2 Sch. & Lef. 1, is the leading case in support of the stricter rule.

The greater number of authorities, however, and, as we think, the better reason, is satisfied if the acts of part performance clearly refer to some contract in relation to the subject matter in dispute; its terms may then be established by parol.

“ First-, then, it seems evident that all that can be gathered from acts of part performance is the existence of some contract in pursuance of which they are done, and the general character of the contract; they cannot, unless possibly in some very singular case, be themselves sufficient evidence of the particular contract alleged, because they cannot in themselves show all the terms of the contract from which they flow.” Fry on Specific Performance, § 558. See also, Brown on the Statute of Frauds, § 455; Foster v. Sale, 3 Yes. 712; Pomeroy on Specific Performance, sec. 107; Anderson v. Chick, 1 Baily Eq. (S. C.) 118; Rathbun v. Rathbun, 6 Barb. 98; Stoddard v. Tuck, 4 Maryland Ch. 475; Semmes v. Worthington, 38 Maryland, 298; Carlisle v. Fleming, 1 Harrington, 421.

Usually possession is the act of part performance relied on to take a case out of the operation of the statute of frauds; that, of course, always discloses the subject matter to which it refers, and courts in discussing its sufficiency have no occasion to expressly declare that an act of part performance must refer to the subject matter of the contract in dispute, but it is apparent that such qualification is always understood. Surely, acts that refer to some contract between the parties, respecting a totally different subject matter than the one in dispute, would not take the case out of the operation of the statute. The very object of admitting proof of part performance is to show, not that there is some contract between the parties about something, but that there is some contract between them about the subject matter in dispute, in order that the contract set up respecting it may be established by parol. In Maddison v. Alderson, 8 L. R. App. Cases, 467, on page 476, Lord Chancellor Selborne says that the statute does not apply where the right to relief grows out of “ equities resulting from res gestee subsequent to and arising out of the contract. So long as the connection of those res gestee with the alleged contract does not depend upon mere parol testimony, but is reasonably to be inferred from the res gestee themselves, justice seems to require some such limitation of the scope of the statute; ” and on page 491 Lord Fitzgerald says : “ The Lord Chancellor has well laid down that the acts relied on as performance to take the case out of the statute must be unequivocally and in their own nature referable to some such agreement as that alleged, and, I may add, must necessarily relate to and affect the land, the subject of that agreement.” This is an instructive case respecting the doctrine of part performance in cases of the character of that before us. A woman had been induced, by a promise to leave her an estate for life in land, to serve the intestate as his housekeeper, without wages, for many years, and to give up other prospects of an establishment in life. The denial to her of a specific performance of the contract, she set up, was a great hardship to her; but little, if any, less than it is claimed defendant in error will sustain if relief is denied her in the case before us.

The mother of the defendant in error was a servant girl, burdened with the support of an illegitimate child of the age of about two years. The Woodbridges were prosperous people without children, or the hope of any. The mother gave them the child, and never afterwards revealed her motherhood. The Woodbridges received the infant, reared her tenderly in all respects as if she were their own daughter, used great diligence in guarding from her any knowledge that she was not of their blood, and she in turn repaid this kindness by giving them the affection and performing the duties of a daughter. Acts of this character, are not usually the offspring of contractual relations. Would the ordinary observer infer from them any contract whatever ? Would they not, rather, be attributed to higher motives ? Even if we acquit the mother of any desire to conceal the evidence of her shame, or to escape the burden of supporting her infant, yet might we not expect at her hands, from motives of maternal affection alone, just what she did ? If she kept the child, the stigma of its birth would cling to it through life, and it would face a life of poverty, if not of actual want; to give it to the Woodbridges and conceal its birth, would be to remove that stigma for which she was responsible, and open up to it a useful and honorable future. Whether these acts of alleged part performance be taken singly or collectively, they do not indicate that they were done in performance of any contract or agreement respecting property rights of any kind, but rather were the manifestations of a benevolent and affectionate disposition an the part of a childless couple towards a gentle and affectionate child whose fate was placed in their keeping by a mother who was in destitute circumstances and homeless herself.

The case of Van Duyne v. Vreeland, 11 N. J. Eq. 370; same case, 12 N. J. Eq. 143, is in many respects like the one before us. And the reasoning of the court in that case would entitle the defendant in error to the relief demanded. In that case, however, the learned chancellor gave but slight attention to the principles that underlie and support the doctrine of part performance of parol contracts; he simply recited the mutual acts of the parties, and assumed that they constituted such part performance as would take the case out of the operation of the statute. The doctrine of that case, Van Duyne v. Vreeland, finds support in Rhodes v. Rhodes, 3 Sanford Ch. 279; Sutton v. Hayden, 62 Mo. 101, and some other cases in that state. But it is repudiated in Wallace v. Rappleye, 103 Ill. 229; Wallace v. Long, 105 Ind. 522. Much stress, in some of the cases relied on by defendant in error, is laid on the circumstances that the services rendered by the party seeking specific performance were not capable of being measured, nor intended to be measured, by any pecuniary standaid, and, therefore, as the party had no adequate remedy at law, an exception should be grafted on the general rule, that the payment of the consideration will not take a case out of the statute.

This general rule is well established in Ohio. Sites v. Keller, 6 Ohio, 483; Pollard v. Kinner, 6 Ohio, 528. And the rule in this state is not affected by the circumstance, that consideration was paid by personal services. Howard v. Brower, 37 Ohio St. 402; Crabill v. Marsh, 38 Ohio St. 331.

Noth withstanding that it is the established rule in Ohio that the payment of the consideration, even in the personal services of the party seeking relief, does not ordinarily constitute such part performance as will take a case out of the operation of the statute of frauds, we do not wish to be understood to hold that cases may not arise wherein specific .performance of a contract in parol may be had on the ground that the consideration had been paid in personal services, not intended to be, and not susceptible of being measured by a pecuniary standard.

What we hold in the case before us is, that although the services rendered by the defendant in error may have been of such character, yet, the circumstances under which they were rendered, when considered in connection with the other alleged acts of part performance, do not indicate that they were done pursuant to any contract or agreement whatever relating to property; and that this class of cases does not call for any further relaxation of the rule requiring proof of acts of. part performance to take a case out of the operation of the statute of frauds. This, too, is an extreme case of its class. The contest is over an estate valued at about forty thousand dollars.. The defendant in error claims to succeed to it all, by virtue of the terms of a parol contract made when she was a small infant, forty-six years before the trial in the circuit court. The only persons to whom the terms of the alleged contract were confided, were her own mother, who at the time of the trial had not been heard from for over forty years, and her foster parents, James E. Woodbridge and wife, both of whom were dead; and the only proof of its terms was the declarations of Mr. Woodbridge, casually made to persons having no pecuniary interest in the matter, over forty years ago.

The judgment of the circuit court is reversed, and the petition dismissed at the costs of the defendant in error.


source: Caselaw Access Project

author: Spear,' J.

license: Public Domain

text:
    The C. & H. C. & I. Co. v. Tucker.

      Mines and Mining — Pollution of Streams —Piparían Bights —Negligence.

    In an action brought by a riparian owner to recover of a mining company, damages to his lands, and for polluting the water of a stream which runs through them, by depositing on its own lands, coal slack, dirt and refuse, in places from which the same had been washed down and on to the lands of plaintiff, the evidence showing substantial injury to have been produced thereby, that the deposits were made intentionally, and that such result might, at the time the deposits were made, have been anticipated by a person of ordinary intelligence and prudence, a right to recover is established, and it is not a defense to show that the operation of the mines, and the deposit and disposal of the slack, etc., was conducted in the mode in general practice in the operation of similar coal mines in the surrounding mining districts, and that such deposits were made without malice, and upon the only feasible place or places the company could deposit the same, and carry on the business of mining coal.
    (Decided January 13, 1891.)
    Error to the Circuit Court of Hocking county.
    For an understanding of the points decided, the following statement of facts will be found sufficient.
    On April 24,1886, John H. Tucker, defendant in error, commenced an action in the Court of Common Pleas of Hocking county against The Columbus & Hocking Coal & Iron Company, seeking to recover damages for injury to his lands by reason of the acts of the company. Among other things, the petition alleged that the defendant is an Ohio corporation; that the plaintiff is the owner of a tract of land through which flows a stream called Monday creek, whose channel, prior to the wrongs complained of, had always been sufficient to hold and carry the water of the stream, except during unusual freshets. On the first day of March, 1883, and continuously thereafter, the defendant was and had been the owner and operator of large coal mines situate along Sugar run, and its tributaries, which run empties into Monday creek above and near plaintiff’s lands. Since the above date defendant has continually and intentionally thrown and deposited, and knowingly permitted to remain, the coal dirt, coal slack, and coal refuse from its mines, in large heaps upon the immediate banks of said run and its tributaries, in such maimer and with the purpose that the same should, during rains and freshets, be washed into said streams, and carried away thereby. Said slack, dirt and refuse, was, during the time mentioned, carried by Sugar run and its tributaries into and along Monday creek, filling up the channel thereof through plaintiff’s farm, causing Monday creek to overflow its banks, inundating plaintiff’s lands, covering about seven acres thereof with slack and refuse, and rendering it valueless. Also, destroying a valuable spring, rendering about nine acres of the lands swampy and unhealthy, and befouling and poisoning the water in Monday creek, thus rendering it unfit for stock.
    The defendant, by answer, denied that it deposited its slack and other refuge on the margin of Sugar run, or in any other place, or permitted the same to remain on the bank of said stream, for the purpose of having it washed away by the stream. It denied specifically the allegations of damage to plaintiff by reason of the coal slack and other refuse. It averred that the mining at and operation of the mines, and the deposit and disposal of the slack and all refuse, was conducted in a prudent and careful manner, and in the mode in general practice in the operation of all similar coal mines in the Hocking valley,'and the surrounding mining districts near thereto, without malice or negligence, but with due regard to plaintiff’s legal rights; and the deposits were made upon its own lands and upon the only feasible places it possibly could deposit the' same, and carry on the business of mining coal.
    Plaintiff, for reply, denied that the deposits were made in a careful and prudent manner, and without negligence, and that the deposits were made in the only feasible places compatible with carrying on the business of mining coal.
    At the trial the defendant offered to prove “ that the mines were properly located; that the operation of them was properly conducted; that the coal slack was deposited upon the land of the company without malice or negligence, in the ordinary way in common usage in the mining regions of the Hocking valley and its surroundings, and in the only possible and feasible way that the defendant could deposit the same.” Objection to this was sustained, to which defendant excepted.
    In varying forms of expression, the defendant requested the court to charge the jury that the defendant was a corporation duly empowered by its charter to mine coal, and the power to mine coal carried with it the power to do all things made necessary by the natural conformation of the land, or whatever else is included in the reasonable and proper use of mining lands. So that, if the jury should find that the defendant has confined itself to the necessary means of the lawful enjoyment of its lands; that it deposited its coal slack from its mines on its own lands, upon the only feasible place or places it could possibly deposit the same, taking into account the natural conformation of the land where the coal banks were located, and the slack was deposited in order to carry on its business of mining coal, and that the deposits were made without malice or negligence, and without intent to have it carried away by water, then there can be no recovery.

      The court declined to charge as requested, but did charge, among other things, as follows:
    “ The first principal question that will demand your attention is, whether or not the defendant intentionally threw and deposited, and permitted to be thrown and deposited, the coal dirt, slack and refuse from its coal mines into Sugar creek, or in the immediate vicinity of such creek, with the' purpose and intention of having the same, bj*- operation of rain falling upon it, wash into the said creek. This is averred in the petition, and denied in the answer, and before the plaintiff will be entitled to a verdict at your hands, he must satisfy you by preponderance, or greater weight of the evidence, the truth of such averment. If he shall fail to satisfy you of the truth of this averment, that will be an end of your labors; for in that event your verdict must be for the defendant. For though the defendant says in its answer that it was guilty of no negligence or carelessness in the operation of its coal mines, and deposited its slack upon the only feasible place for its deposit, etc., and this is denied in the reply, yet the plaintiff can only recover because of the fact of his petition; and the only wrong conduct complained of in the petition is this intentional deposit of slack, etc., into the stream, or in such proximity thereto, that it was intended it should wash in said creek; and it is for the consequence of this wrongful conduct upon the part of the defendant that the plaintiff may recover.....
    “ The question that you have to deal with is, as to whether the defendant, during the time complained of in the petition, did the acts therein charged, and whether injuries resulted to the plaintiff’s land therefrom. You will observe the defendant must have intentionally, during the time complained of in the petition, March 1, 1883, to April 24,1886, the date of filing the petition, deposited this slack or refuse from its mines in this creek, or at some place that it would naturally and necessarily be carried into said creek, or it must have intentionally permitted the same to be done. And by permission here is meant that having the power and control over the operation of said mines, and knowing said slack and refuse was being so deposited, failed and neglected to prevent the same.
    “ Where the slack and refuse is not thrown or deposited directly in the creek, but at a place where it is claimed it will be washed into such stream, the defendant’s intention must be gathered from the circumstances under which the same was deposited. One is presumed to have intended the natural consequence of his act purposely done; and if this slack or refuse was deposited at such a place by the defendant, that it must naturally and necessarily be washed into the creek or stream, the intention that it would be so washed, must be presumed.
    “ This is a practical question, and the defendant must be held to the exercise of care and caution in the deposit of its slack, to avoid its being washed into the stream; and that is such care and caution that a man of ordinary prudence and intelligence — desirous of preventing such slack being washed into said stream — would exercise in making such deposits; and if it could not be deposited upon said land, without its being necessarily washed in the stream, as must be apparent to any man of ordinary intelligence, then it was the duty of the defendant not to cause its deposit upon said land. Upon the other hand the defendant cannot be held liable for any unusual result, or one that would not be anticipated by a man exercising ordinary intelligence, while depositing the slack upon his own land; and if injury resulted, from such deposit, to another, it must be held an accident for which the defendant is nob responsible; so you will look into this testimony, and determine: Did the defendant deposit, or permit to be deposited, the slack and refuse from its coal mines in this stream, or did it deposit such slack and refuse at some place or places, whether upon its own land or elsewhere, from which it was its legal duty to know that such slack and refuse would be washed into the stream, and was such slack and refuse washed from thence into the stream.”
    To which refusals, and to the charge as thus given, the defendant excepted.
    A verdict having been given for the plaintiff and' judgment rendered thereon, error was prosecuted to the circuit court, where the judgment was affirmed. To reverse these judgments the present proceeding in error is prosecuted.

      Seth Weldy, for plaintiff in error.
    When the maxim, sie utere tuo ut alienum non Icedas, is applied to landed property, the plaintiff must show not only that he sustained damages, but that the defendant has caused it by going beyond what was necessary in order to enable him to have the natural use and enjoyment of his own land. Damages resulting to another from natural and lawful use of his own land, by the owner thereof, are, in the absence of malice or negligence, damnum absque injuria. Iron Company v. Kenyon, L. R. 11 Chan. Div. 783; The Pennsylvania Coal Co. v. Sanderson, 113 Pa. St. 126.
    ' We offered to prove that the mining of coal by the company was conducted in a prudent and careful manner, and in the usual mode in general practice in all similar mines in the Hocking valley, and other surrounding mining districts, and that the slack and other refuse matter was deposited on the company’s own lands, in the only feasible place such matter could possibly be deposited, and carry on the business of mining coal in the Hocking valley; and without malice or negligence toward the plaintiff below, but were overruled by the court.
    If one has confined himself to the only possible means of the lawful and only natural use and enjoyment of his land, and damages result from such use and enjoyment, it is simply an unavoidable incident, as though it was caused by flood or any other act of providence. Hence the carrying off of the slack from our lands, being caused only by floods, it is the act of God, and beyond our control. The coal was formed in our lands by the Creator, and we are only seeking to utilize them for the one single purpose, that which the God of nature intended them for — mining coal, iron and stone. Nature never intended these lands for any other purpose; if it did it made a great mistake.

      The courts below in this case held that every man acts at his peril, and if in the commission of a lawful act, he occasions consequential damages to his neighbor, he is liable therefor without proof of actual negligence or malice. Now it is easily shown that such is not the law in this country, nor in England, aside from the case of Fletcher v. Ryland, Losee v. Buchanon, 51 N. Y. 476; Ruffner v. Railroad Co., 34 Ohio St. 96.
    The doctrine laid down in Fletcher v. Ryland has been modified and restricted in England, by a number of decisions. Nichols v. Marsland, L. R. 10 Ex. 255; S. C., L. R. Ex. Div. 1; Box v. Judd, 27 U. R. 415; Ross v. Fedden, L. R. 7 Q. B. 661; Tipping v. St. Hellen’s Smelting Co., L. R. 1 Ch. 66, H. H. L. C. 642; Casey v. Lodbetter, B. C. B. N. S. 476; and Smith v. Kenrick, 7 C. B. 515.
    It must be borne in mind all along, that it is not claimed from the evidence (as it is wholly wanting in that respect), that we have been either negligent or malicious, or that our mines were operated in any but the natural methods, and in a skilful manner.
    Suppose that instead of mining for coal and depositing slack and other refuse matter upon our lands, which unavoidably and necessarily occurs in mining, we had bored for oil, and the oil rushing out had flowed upon and saturated the land of the plaintiff below, killing and destroying his grasses, growing crops, which carbon oil will do, would it be seriously maintained that we would be liable in damages ?
    Right here it may be well to discuss the question of customs. In one sense it may be the technical custom of the common law, “ whereof the memory of man runneth not to the contrary,” and in another it means the invariable, whether local or universal, usage applicable to the thing in question. Here we mean by custom, the custom of mining. Such a custom or usage can have no longer life than the particular business to which it is applicable.
    The mining industry, like every other business and trade, has its particular usages and customs, dictated not only by convenience, but by the necessity of the subject matter to which they are applied. As these exist from the necessity of the case, and are a part of the very law of nature itself, the private and personal interests of the individual must defer to them. They were considered by the courts of California as proper and reasonable, because established by those who were most competent to decide the question. Morton v. Solambo Co., 26 Cal. 327; Parker v. Healon, 9 Cal. 568; Strong v. Ryan, 40 Cal. 33; St. John v. Kidd, 26 Cal. 264; Sulivan v. Hense, 2 Colo. 424; Harvey v. Ryan, 42 Cal. 626; Gore v. McBrayer, 18 Cal. 582; Colman v. Clement, 23 Cal. 245; Oreamuno v. Uncle Sam Company, 1 Neb. 215; Mallet v. Uncle Sam Company, 1 Neb. 188.

      F. W. Merrick and L. D. Vickers, also, for -plaintiff in error.
    We maintain that the question of the existence of negligence was of the highest importance, and should have been submitted to the jury. For if damages may be recovered for the necessary result of careful and prudent mining operations, where the work has been carried on wholly on the operator’s own lands, then the operator never can remedy the wrong. It is a legal wrong where there is no power to prevent it, and so long as mines are operated it will be a never-ceasing and continuous wrong. Wood on Nuisance, sec. 767; -Story’s Equity, sec. 928; Pa. Coal Co. v. Sanderson, 113 Pa. St. 126; Wood on Nuisance, see. 770, note 4; Idem, sec. 772. It should be remembered that the act complained of in this case is not a trespass, and that the damage is consequential and not direct.
    It follows, that if the defendant is held liable for the evil results of careful mining, independent of all questions of negligence, mining cannot be carried on in Ohio, for the rights of the defendant in error in this case are the rights of every other citizen of the state. The court below undertook to apply to this ease the extreme doctrine laid down in the English case of Fletcher v. Rylands, 3 H. C. 774, (also cited in full in Thompson on Negligence, vol. 1, p. 2,) while in fact that case has no application whatever to the case at bar, except as it incidentally supports our claim. Later cases in England, have established many exceptions to the rule laid down in Fletcher v. Rylands, and in this country it has not been followed to any considerable extent.
    The true rule in this country seems to be that every land owner shall have the right to have the natural and lawful use of his own land, and if damage should necessarily result to another from such natural and lawful use, without malice or negligence, it is damnum absque injuria, and where the maxim sic títere tuo ut alienum non Icedas is applied to real estate, the plaintiff in order to recover, must show that the defendant has caused the damage by going further than necessary for him to go, in order to enable him to have the natural use of his own land. Gardner v. Heartt, 2 Barbour, 168; Howland v. Vincent, 10 Met. 371; Pa. Coal Co. v. Sanderson, 113 Pa. St. 126; Losee v. Buchanon, 51 N. Y. 476, 485, 490; Bassett v. Manfg. Co., 43 N. H. 569; Swett v. Cutts, 50 N. H. 439; Ruffner v. Railroad Co., 34 Ohio St. 96. In the case at bar the slack was accumulated in the natural user of the land in mining coal in the ordinary and customary way..
    It is certainly true that the owner of farming land must be protected in his rights, but not that he should be made the recipient of special protection. We agree that he should be protected from our negligent, careless or malicious acts on our own land, and from our trespass on his; but he has no right to a protection that destroys our property, or to the enforcement of a rule which would enjoin our operations. He has no more right to stop our mines than we to stop his plow. We have as much right to the natural use of our mining lands as he to his farming lands. If the farmer uses his land for its natural use, without malice or negligence, and in so doing he floods our mines, we. cannot complain. This is treating all.alike, all having the natural use of their own land, and being alike held strictly responsible for negligence and malice in such user, and absolutely responsible for all damage arising from an artificial use.
    It is absurd to claim that one man shall abandon the natural user of his property in order that another shall have a more perfect enjoyment of his. Such a rule would guarantee to the owner of one particular class of real estate, peculiarlysituated, entire freedom from any of the inconveniences and burdens incident to residence in a civilized community, and place his burden entirely upon his neighbor owning another class of property. This protected individual must have the use of his lands in their original purffy because they are farm lands, and happen to lie lower upon the stream than do the coal lands of his neighbor, and to effect this the coal land proprietor may be ousted from the ordinary and natural use of his own.
    Angelí on Water Courses, sec. 336; Tappan v. Curtis, 5 Vt. 371; Todd v. Cookell, 17 Col. 97; Shrewsbury v. Smith, 12 Cushing, 177; Livingston v. Adams, 8 Cowen, 175, all show that the American doctrine permits more liberty in the use of property than the English. Our courts draw the line at malice and negligence where the damage is not direct. The right of the plaintiff in error was the right to mine coal; such was the purpose for which it was created, and it is not liable in damages for the reasonable exercise of that right.
    We offer, not only to prove that we were not guilty of negligence, but to go farther and prove that our business was conducted in the only feasible or possible way; but this was denied us. We asked the court to charge the jury that if it found that we had done this we were not liable; but the court denied us this, and then charged the jury that if it was impossible for us to carry on our business without depositing the slack where some of it would get into the creek, then we were liable. In other words that we could not carry on the business of mining coal unless we became the insurers that our slack was so deposited upon our own lands that the percolations of rain, the flow of surface water, the force of gravitation or the violence of the freshet could not or would not carry it or any part of it away.
    The defendant in error cannot demand as a matter of right that we will keep the coal forever covered up. The case of Penn. Coal Co. v. Sanderson, 118 Penn. St. 126, is a very recent and valuable decision on mining rights, and the question discussed involves exactly the same principles as are involved in this case.
    It is admitted by the pleadings, because averred in the answer and not denied in the reply, that the mines of plaintiff in error were operated in the usual manner, and in accordance with the custom of the mining district in which they are located. To say that our mining operations were conducted in accordance with custom is to say they were conducted according to law. We offered to prove the custom, but the court refused to admit it. The court below very evidently considered that all of plaintiff in error’s rights were to be construed undfer section 6925, Revised Statutes of Ohio.
    We contend that this statute is of no avail in maintaining the issues in this case. The defendant in error must have made out a case by force of the common law of the land, to maintain a civil suit for damages, and the violation of such a statute against a crime could not add or take away anything from the rights of the parties to such civil action. Even if such a construction were possible, the statute is more reasonable than the court, for it makes the intent the criminal act, while the court says if the act was done, the intent must be presumed.
    The right contended for all through this case is the right to the ordinary and natural use of our land for mining purposes, with a strict accountability for all damages arising from our negligence or malicious acts. We contend that our business is lawful; that the damage — as we offered to prove — was incidental and unavoidable, and not intended. It was so alleged in our answer and our proof was in support of those allegations.
    The operations of coal mines, while in itself lawful, is authorized by statute. Section 3862, Revised Statutes.
    We offered to prove “ that our mines were properly located; that the operation of them was properly conducted; that the coal slack was deposited upon our own lands, without malice or negligence, in the ordinary way, in common usage in the mining regions of the Hocking valley and its surroundings, and in the only possible and feasible way that the defendant could deposit the same.” This evidence in support of our answer would have established the reasonable exercise by us of the right granted by section 3862, and would have proved that we were exercising that right in the only way we could, and without malice or negligence, and such proof would also have amounted to a complete defense against the criminal provisions of section 6925.

      The z’efusal of the court to receive this evid'ezzce, and to give the special charge asked upon the same point, was a refusal upon the part of the court to recognize a right expressly granted by statute.
    The grant of power to coal compaizies under section 3862, is just as positive and strong, and almost in the exact language, as section 3270 Revised Statutes, which grants to railroad corporations the power to operate their roads.
    Uzzder this authority it was held in Ruffner v. Railroad Co., 34 Ohio St. 97: that “ a party is not answerable in damages for a reásonable exercise of a right, and that a liability arises only when it is shown that the right was exercised negligently, unskilfully or'maliciously,” azzd Mcllvaine, J., says “the doctrine here announced is sustained by the following cases : ” Railroad. Co. v. Yeiser, 8 Pa. St. 366; Turnpike Co. v. Railroad Co., 54 Pa. St. 345; Burroughs v. Railroad Co., 15 Conn. 124; Road v. Railroad Co., 18 Barb. 80; Sheldon v. Railroad Co., 14 N. Y. 218; Railroad Co. v. Woodruff, 4 Md. 242; Smith v. Railroad Co., 37 Miss. 287; Wharton on Negligence, secs. 869-870.
    Section 6925 must be so construed as to admit of the exercise of the right conferred by section 3862, as it has been construed by the court.
    If by this criminal statute it was intended to make an act, which- is necessary to be done in the natural use of real estate for a necessary and lawful .purpose, a crime, then we deny the power of the legislature to enact such law. It is the application of a principle which is destructive of all property, contrary to the spiritof the constitution and the general policy of the law, which is intended .to foster and encourage the development of the industries of the state.
    The case was also argued orally by Geo. K. Nash, for.plaintiff in error.

      ,S. H. Bright and It. F. Price, for defendant in error.
    1. The broad question is, can a case like this be maintained at all under the law of Ohio ?
    Section 6925 Revised Statutes, made the acts and doings of the defendant below, as charged in the petition in the court of common pleas, criminal. ■ It is difficult to imagine a case where a citizen has suffered loss, been damaged in his private estate by the unlawful- act of another — an act in undoubted violation of a criminal statute, duly enacted by the legislature, under the provisions of the constitution — in which he would not have a right of action against the wrong-doer, in addition to the remedy the state has by indictment and punishment. In Chitty’s Blackstone, book 4, pages 4 and 5, it is said: “ in all cases the crime includes an injury; every public offense is also a private wrong, and something more.” Cooley on Torts, pages 7, 657; Thompson on Negligence, vol. I., pages 72 and 76, and cases there cited, and page 114; Hilliard on Torts, vol. I., page 101; Bishop on Non-Contract Law, secs. 70 and 71, and cases there cited; secs. 141 and 142; Hayes v. Michigan Central R. R. Co., 111 U. S. 228.
    Section 6925 Revised Statutes, as originally enacted, is found in vol. 73 Ohio Law, page 87, and provides a civil remedy, as follows: “ and shall moreover be liable to the parties injured in treble'the amount of damages by him or her or them sustained.” The following year the legislature codified the criminal laws of the state, see vol. 74, page 264, and left off the clause above quoted. This codification was carried into the Revised Statutes, which took effect September 1, 1879, and Januarj7 1, 1880.
    The old statutes, on- nuisances, Swan & Critchfield, page 880, which was almost the equivalent of the present section 6925, expressly gave (sec, 4) “ an action for the recovery of damages as in other cases.” This shows public policy in this state on the subject in favor of the civil remedy, for criminal nuisances.
    On the proposition that former construction of a statute is not changed by revision, we cite: Taylor v. State, 86 Ohio St. 212; State v. Jackson, Id. 281; Williams v. State, 35 Ohio St. 175; Law Bulletin, vol. 21, page 52; Cooley on Torts, page 658.
    Now, it is manifest that section 6925 in question was from its inception, intended for the benefit of individuals as well as the public. Here the individual is the great sufferer. Those citizens who do not live on the streams in question, and have no particular use for them, would not be directly injured; but the riparian owner must of necessity be injured, and to say that the individual who may have his whole estate destroyed by the wrongful act of another, must be satisfied to go uncompensated, because the wrong-doer has been fined, is to announce a manifestly unjust proposition. But even if counsel for the plaintiff in error are right in saying that the statute, sec. 6925, has nothing to do with the case, still what is said about it in the charge was in no way misleading, and does not show error in the record. To state the case as mildly as possible, it was competent to call the attention of the jury to the statute, because it “ characterizes the act ” of the plaintiff in error, as was said in Meek v. Pennsylvania Company, 38 Ohio St. 632. It should be remembered in reading many of the cases bearing on this question, that the courts are troubled to determine whether the acts charged bring the case within the common law definition of nuisance. But here the statute of Ohio has said, these acts constitute a nuisance, and the common law says for injuries arising from a nuisance, the injured party shall have an action. Bepley v. State, 4 Ind. 264; Sangamon Dist. Co. v. Young, 77 Ill. 197.
    2. But upon the broad principles of the common law we claim that the plaintiff below had a right of action, based upon well recognized principles: “ Sic utere tuo ut alienwm non Icedas.”

    “Nuisancecomprehends whatsoever annoys or does damage to another in contravention of that great rule of right, so use j'our own as not to injure others.” Walker’s American Law, pages 573, 574; Sutherland on Damages, vol. 3, page 423; Columbus Gas Co. v. Freeland, 12 Ohio St. 392; Woodyear v. Schafer, 40 American Rep. 419; Penn. Coal Co. v. Sanderson, 94 Penn. St. 302; Canfield v. Andrew, 54 Vermont, page 1; Bishop on Non-Contract Law, sections 411, 412, note 2; Robinson v. Black Diamond Coal Co., 40 American Rep. 118; Addison on Torts, section 19, and cases cited; Sanderson v. Penn. Coal Co., 27 American Rep. 711, and cases cited; Washburn v. Gilman, 18 American Reports, 246; Cooley on Torts, pages 556, 569, 588 and 657.
    A riparian owner has a right to the natural flow of water, not increased nor diminished in quantity, and unpolluted in quality, and for any infraction of this right at least nominal damages may be recovered. Sutherland on Damages, vol. 1, page 12; Addison on Torts, section 223 ; Cooley on Torts, page 587 and notes; Penn. Coal Co. v. Sanderson, 94 Penn. St. 302. But upon the principles laid down by this court in Crawford v. Rambo, 44 Ohio St. 279, and Railroad v. Carr, 38 Ohio St. 448, the action of the plaintiff below must be sustained. Here the answer of the defendant in the court of common pleas admitted that it had placed the dangerous substances complained of, and permitted them to remain, in “ such manner ” as they would be carried down Sugar run and Monday creek and deposited on the lands of Tucker. At least they admit that such was the inevitable result of their acts.
    This brings this case within the principle of the fourth point in the syllabus of Crawford v. Rambo, above. After the injury becomes apparent, the party who causes it is always liable to the party injured.
    3. The question of due care or want of due care is not important in cases like this. When the acts complained of necessarily produce damage to another, or where the party causing the injury- must, by the exercise of ordinary intelligence, have foreseen the results; then it matters not that his business was “lawful,” that he “ exercised due care,” or that he made the deposit “ in the only feasible place.” The act itself being obviously dangerous to his neighbor, no matter how carefully executed, becomes per se a wrong, for which he is liable. Wood on Nuisances, pages 125, 127, 135, 136, 137 and 138 ; Addison on Torts, section 1368; Cahil v. Eastman, 10 American Reports, 184; Eaton v. Boston & Montreal R. R. Co., 12 American Rep. 147; Hanneman v. Pence, 41 N. W. Rep. 657; Thompson on Negligence, vol. 1, pages 72, 76, 88, 107, 108; Shipley v. Fifty Associates, 101 Mass. 251; 106 Mass. 194.
    If a man keep on his own premises a dangerous and vicious beast, he would be held to the strictest care that it be confined, so that it does not go abroad and injure his neighbor or his neighbor’s property. But if he bring on to the surface of his land a substance not naturally there, a substance dangerous in its nature, and places it where he knows it will escape and injure his neighbor, then shall he not be held liable ? This coal slack and refuse contains sulphuric acid, which is perfectly destructive of animal and vegetable life. Water impregnated with this acid kills the fish, and is unfit for man or beast. All kinds of vegetation die when brought in contact with it in large quantities. Now, this is a case of turning loose on his neighbor knowingly a most destructive substance; and they plead as their only excuse: we had no feasible place to put it, and it was necessary to our business.
    4. It is claimed that there is a usage or custom justifying the acts of plaintiff in error. To this we reply: One cannot acquire the right to commit crimes by usage or custom. The usual way of doing things in the Hocking valley cannot change the law of the state. To acquire any right in another’s land by anything in the nature of prescription, it must have existed for twenty-one years, and this is not pretended. Wood on Nuisances, page 717 et seq., section 724. It is also said: “ The rights of the company are authorized* by charter, and áre therefore lawful,” etc.

      To this we say: The charter could not confer on the company the right to do that which is forbidden by statute, nor the right to commit torts. The charter granted them the right to mine coal, but it did not grant them the right to deposit slack, etc., in unlawful places, nor to infringe on the rights of others. All this talk about mining coal being lawful business, has nothing to do with the question. Nobody disputes that it is lawful. The unlawful thing complained of is the deposit of the slack and refuse. Eaton v. Boston, Concord & Montreal Railroad, 12 American Reps. 147.
   Spear,' J.

The issue in this case is narrowed by the pleadings to a small compass, though the argument has taken a wide range. We think the case may be determined by the application of simple and well-settled rules of law.

By its answer, the company denied that the deposits of slack and refuse were made or permitted, with the purpose of having them washed down on to plaintiff’s lands, and denied negligence, but did not deny that it made the deposits and permitted them to remain at the places in the petition charged, nor that they were deposited in such manner as that they would be, and were, carried away by the streams. In the view of the trial court, therefore, there was practically but one question for the jury to pass upon in determining the liability of the company, in case damage were proved as the result of the defendant’s acts, and plaintiff’s own acts did not prevent a recovery, and that was whether or not, in making and continuing the deposits, the company’s managers knew, or ought as reasonable men to have known, that they would be washed down by the streams and thus injure the plaintiff.

It is fundamental, we presume, that an owner of land has the right to enjoy the soil itself, in its natural state, unaffected by the tortious acts of a neighboring land owner, and, where the land is located along the margin of a stream, he is, as a riparian owner, entitled, as an incident to his estate, to the natural flow of the water of the stream, in its accustomed channel, undiminished in quantity and unimpaired in quality, except where his estate is servient to one which dominates it, and except as to injury which may be done to it by one in the performance of an act lawful in itself and done in a manner which does not involve malice or negligence. Wash-burn’s Easements and Servitudes, 4th ed., p. 316 ; Johnson v. Jordan, 2 Met. 234. This was the position of plaintiff as to his land on Monday creek, and as to the waters of that stream.

It is not claimed that the plaintiff’s land is, in any legal sense, servient to that of the coal company. But, broadly stated, the claim of the company is, that being a corporation authorized to mine coal in the state, and owning the lands upon and in which its mines are situate, and conducting a business which is of great importance to the public as tending to develop the natural resources of the country, it has the right to place its slack and refuse upon the sufface of its own land at such points as is necessary for its convenience in the carrying on of its current and future mining operations, and that, if it makes such deposits carefully, without malice, but solely with a view to the reasonable and successful mining of its coal, this is no more than is warranted by the common usage of other coal companies and operators of the Hocking valley and that section of the state, and is but a lawful and proper use of its own lands; and although the slack and refuse so deposited, in the ordinary course of things, may, when placed there, be expected to wash down and finally reach the lands of the plaintiff, to his damage, yet it is damnum absque injuria, and there can be no recovery.

Of course the right of the coal company, as a land owner, to the natural and full use of its soil, is measured by the same rule as that applied to the like right of the plaintiff. But the right it insists upon is something different from the natural and ordinary use of the soil. While not an unusual one, perhaps, with those engaged in the same business in the locality, it is an exceptional rather than a common and ordinary one. It is not incidental to the use of the soil itself, as such; indeed, is destructive of what is the most common use of the soil, viz.: for agricultural purposes. Yet it is not, necessarily, an improper or unlawful use. Whether it is so, or not, depends upon the circumstances. The course of business is to take the coal in a body from the inside of the mines to the surface, there screen it, and dump the slack and refuse on its own land, but in such places, that, owing to the conformation of the ground, it maybe carried down the tributaries, and into Monday creek. If the company may lawfully do this, even though the probable and natural effect, known to the company’s managers at the time, is, that the deposits will wash down on to and injure the plaintiff’s lands, or pollute the water of Monday creek, then there can be no recovery, and the judgments below should be reversed.

That the coal company is a corporation can make no difference in the case. Its rights are just as great, and no greater than those of a private person in the same business. That it is authorized by its charter to mine coal generally in the state cannot enlarge its rights in any particular locality. Even had its charter empowered it to establish a business and carry it on in a particular place, it cannot be presumed that the state has intended to authorize it to carry on the business in a manner destructive of the property rights of others without compensation. While the thing to be done may be lawful in a general way, there are and must be limitations upon the means by which it is to be done. Nor is it of consequence that the operation of the company’s mines tends to the development of the natural resources of the country. But few enterprises, the product of which is useful, fail to advance the general good. Along with many evils attending the working of this class of organizations, valuable services have been rendered to the public by them, and many comforts and necessaries are afforded the people by them which the capital of single individuals would be inadequate to produce. At the same time they are not, in the eye of the law, public enterprises, but, on the contrary, are organized and maintained wholly and entirely for private gain; and so soon as gain ceases to follow their operation, just as soon do the operations themselves cease.

Equally immaterial, as we think, is the matter of custom among coal operators in the Hocking Valley and the surrounding mining districts near thereto, of depositing slack and refuse on their own lands, when such custom is invoked to justify deposits so placed as to naturally allow them to wash down to the injury of lands lying below them. The rights of the plaintiff to the uninterrupted use of his land, and the unimpaired use of the water of Monday creek being secured to him by the common law, how is it possible that a custom can deprive him of them? Why should a usage, the-effect of which, if recognized, is to permit one man to take from another his property rights without compensation, be-' sanctioned? If it be assumed that the custom is a general one, then it is part of the common law itself, and there would be presented an instance of two rules of law, equally binding, and yet wholly inconsistent the one with the other. If it be claimed that the custom is a particular one, then we have the anomaly of a land owner’s common law right in his land taken from him by a usage of a particular trade, established by strangers, which it is not pre tented he has ever been cognizant of, much less assented to. To have affected the plaintiff, the custom must have been shown to be reasonable and certain, known to him, or to have been so general and well ■ established that knowledge would be presumed, peaceably acquiesced in, and not unjust, oppressive, or in conflict with an established rule of public policy. The alleged custom possessed scarcely one of these attributes. Even though it had been common throughout the state, it would not avail. A usage which is not according to law, though universal, cannot be set up to control the law. Meyer v. Dresser, 111 E. C. L. R. 646; Stoever v. Whitman, 6 Binn. 416; Inglebright v. Hammond, 19 Ohio, 337. Nor could the testimony offered avail the defendant on the ques- ’ tion of negligence. Evidence of a particular custom is sometimes admitted to explain a contract; to ascertain the intention of the parties when it has not been fully expressed in the contract, to interpret the otherwise indeterminate intentions and acts of the parties, or to show that the mode in which a contract has been performed is the one customarily followed by others engaged in the same calling or trade. But, as a general proposition, one “ charged with negligence will not be allowed to show that the act complained of was customary among those engaged in a similar occupation, or those placed under like circumstances or OAving similar duties. Such an offer is in effect to shoAV, as an excuse for defendant’s negligence, a custom of others to be equally negligent.” Deering’s Law of Negligence, § 9; Cleveland v. Steamboat Co., 5 Hun 523; Judd v. Fargo, 107 Mass. 264; Hinckley v. Barnstable, 109 Mass. 126; Miller v. Pendleton, 8 Gray, 547; Bailey v. N. H. Co., 107 Mass. 496; Littleton v. Richardson, 32 N. H. 59; Bridge Co. v. Fisk, 23 N. H. 171; Crocker v. Schureman, 7 Mo. App. 358. That others engaged in like business have been accustomed to disregard the rights of their neighbors can furnish no justification to the defendant to do so.

The further claim of the company that it had the right to make the deposits in the places complained of because it Avas necessary to the successful conduct of its own buisness to so place them, seems no less wanting in substance. The effect ■is to measure the rights of the plaintiff, in his lands, and in the waters of Monday creek, by the convenience or necessity of the company’s business. An owner of land in Ohio is not subject to any such narroAV and arbitrary rule. If the injury complained of were merely a fanciful wrong, or produced simply personal discomfort, such as any dweller in a town is necessarily subjected to by reason of the operations of trade which may be there carried on, and which are actually necessary, not only, for the enjoyment of property, but for the benefit of the inhabitants of the town and the public at large, there might be no real ground of complaint; but where the result of the acts of one on his own land is a direct and material injury to the property and property rights of another, a very different question arises, and, in such case the maxim sic utere tuo ut alienum non laedas applies. Upon reason, we think the proposition sound, that where no right by prescription exists to carry on a particular business in a particular manner, at a particular place, and the natural and necessary result of the place selected, and the manner adopted, is to cause material injury to the property rights of another, it is not a sufficient defense to an action for damages to show that the locality where it is carried on is one generally in use by persons in such business, and the manner in which it is carried on is commonly adopted by others in such business, even though it appear that the use made of the land, while not the common and ordinary use of land as such, is not an unnatural nor improper one in and of itself, nor even an unusual one, and the proposition will be found sustained by abundant authority. From the scores of cases we are content to cite Tipping v. Smelting Co., 116 E. C. L. R. 608, 615, and same case, 11 H. of L. Cases, 642; Bamford v. Turnley, 113 E. C. L. R. 61. In the hitter case defendant was the owner of land on which was clay well adapted to the making of brick. He dug the clay, moulded it, and proceeded to burn it on the land, to the damage of the plaintiff. The court held that an action for a nuisance would lie. Attention is 'specially called to the opinion of B bamwiEll, B. Attention is also called to Sherman & Redfield on Negligence, sections 733, 734. “It is a general principle that any person who, without authority, diverts the whole or ai^r part of the water of a stream from its natural course, or interferes with its natural current, is responsible absolutely, and without any question of negligence, to any one who is entitled to have the water flow in its natural state.” “ Any use of the land near a stream, or of the water of the stream itself, which renders the water un wholesome, offensive, Or unfit for the purposes for which it is used, is unlawful; and any riparian owner who is damaged by such unlawful acts has an action for his damages against the author of the wrong.”

If this view of the law be correct it is clear that the question as to the company’s liability, in case damages were proved as the result of the defendant’s acts, and the plaintiff’s own conduct did not prevent a recovery, was, as held by the trial court, merely a question whether or not, in making and continuing the deposits the company’s managers knew, or ought to have known as reasonable men, that the deposits would be washed down by the stream, and might injure the plaintiff. No obstacle was placed by the court to the making of proof by the company touching this point. The offer of proof in regard to negligence did not embrace this idea, however, and was, therefore, too general to be of service to the jury. Besides this, it embraced propositions as to matters wholly immaterial, as heretofore shown. It was not error, therefore, to exclude the testimony. For like reasons there was not error in refusing to charge as requested. Some of the propositions embraced correct principles of law in the abstract, but were not, as stated, wholly applicable to the case made, and might have been misleading, inasmuch as they were in the line of the defendant’s theory of the case, which, we think, was wrong. Nor was there error in the charge as given. The rule given the jury as to negligence was in strict consonance with the doctrine laid down by this court in Crawford v. Rambo, 44 Ohio St. 279. It is there held that “ Where a riparian owner constructs an embankment upon his own lands, that occasions substantial injury to the lands of a neighbor upon the stream, and which might, at the time, have been anticipated by a man of ordinary prudence and intelligence, he is liable in damages for the injury as occasioned.” The rule, we think, applies to the case at bar.

The case of Ruffner v. Railroad, 34 Ohio St. 96, is cited as sustaining the company’s claim. With due respect we think it fails to do so. The question was, whether, where a railroad company, authorized to propel its trains and operate its road by steam locomotives, an inference of negligence arises from the mere fact that an injury to adjoining property was caused by sparks emitted by such locomotives, which question the court answered in the negative. The railroad company was authorized by the state to construct its railroad and operate it by locomotives, and the only way by which it was possible for the locomotives to be driven was by the creation of steam by means of fire, and sparks would necessarily follow. It was not only the natural and common way, but the only practical way. Negligence must be shown; it will not be presumed. Hence, when the only fact present was that sparks had been emitted from the smoke stack which caused damage, the court would not infer that the fire was carelessly conducted, nor that the appliances of the railroad company were defective.

But whether or not, at common law, the action could be maintained, there seems to be no question but that the acts charged against the defendant company, if done intentionally, constituted a nuisance punishable by the criminal statute, and ■ that a right of action on the part of a person injured would follow. By the act of April 15, 1857, 1 S. & C. 880, “the obstructing or impeding, without legal authority, the passage of any navigable river, harbor, or collection of water; or the corrupting or rendering unwholesome or impure any water course, stream or water; or unlawfully diverting any such water course from its natural course or state, to the injury or prejudice of ■ others,” was declared a nuisance, made punishable by fine, and a right of action given to any person injured for civil damages. The act of March 27, 1876, 78 Ohio L. 87, provided “ That if any person or persons shall intentionally throw or deposit, or permit to be thrown or deposited, any coal dirt, coal slack, coal screenings, or coal or other refuse from coal mines, into or upon any of the rivers, lakes, ponds, streams, or any place adjacent to the same, from which such • coal dirt .... will wash into any of the rivers, lakes, ponds or streams of this state, every such person or persons shall be , deemed guilty of a misdemeanor, and upon conviction thereof shall be fined,” etc., “and shall moreover be liable to the • party or parties injured in treble the amount of damages by him, her, or them sustained.” This act was codified the fol- , lowing j'-ear and made part of the penal code, 74 Ohio L. 264, under the head of “Nuisances,” and is section 7 of that ehap- . ter. In this codification, which is now in substance, section ,6925 of the Revised Statutes, the provision for treble dam- , ages is omitted. It does not. follow, however, that civil damages may not be recovered. The acts charged in this case against the company came within the statutory definition of nuisances. This legislation shows a legislative intent to give the injured party a civil action. But, aside from this, it is settled law, we presume, that for injuries arising from a nuisance the' injured party may have an action. Judge Cooley, in his work on Torts, 2d ed., p. 790, says: “itis sufficient to say of the authorities that they recognize the rule as a general one, that when the duty imposed by statute is manifestly intended for the protection and benefit of individuals, the common law, when an individual is injured by a breach of the duty, will supply a remedy if the statute gives none.” See, also, cases cited, and Cardington v. Fredericks, 46 Ohio St. 442.

If, therefore, the evidence showed that the statute had been intentionally violated, a statutory nuisance was shown to have been committed, and those engaged in producing it would be liable. Let it be assumed that the company,-on account of its artificial character, could not be indicted and punished, yet the persons in its employ who did the acts could be held both criminally and civilly, and whenever the acts of an employee are such as to make him liable personally, the employer, whether a natural person or a corporation, may be held civilly where it. is shown that the acts of the employee were performed in the line of his duty. So that, in this ease, if the acts done would have rendered the employees amenable to the criminal statute, no rule of law forbids the reaching beyond them and visiting responsibility in civil damages upon the corporation itself. Its liability will be measured by the same rules of law which determine the liability of the employees. Applying this test we suppose the rule to be well settled that persons of intelligence are presumed to have intended the natural consequence of their deliberate acts. If, therefore, the natural result of placing slack and refuse in the stream, or on the margin or bank, is that they will be washed down by heavy rains on to the lands of plaintiff, and this would be apparent to the ordinary observer, it is but just to assume, in the absence of a contrary showing, that the expectation was that it should so wash. And this state of facts would show that the company exercised its right negligently. But if such washing was not a natural consequence, and would not have been anticipated, as a natural result, by persons of usual intelligence, in the exercise of ordinary care, no intent would be presumed, nor negligence imputed, and if damage ensued to persons having property on the streams below, by the washing of slack, etc., no liability would attach to those who made the deposits. And, in substance, the foregoing was given by the trial judge to the jury.

The charge upon other questions presented is an accurate statement of the law of the case. An examination of the record fails to show any error therein.

Bradbury, J., not sitting.

Judgment affirmed.