author: McIlvaine, J.

text:
    Insurance Company v. Butler.
    A policy of insurance for $800 on 4 certain dwelling house, — which sum does not exceed two-thirds of the value of the house as appears from the application that was made a part of the policy, which also contains a stipulation that the company will pay to the assured “ all loss or damage,” not exceeding the sum assured, within ninety days after due notice and “proofs” of such loss or damage, — is an open and not a valued policy
    Error to the District Court of Holmes County.
    The original action was brought by Joseph R. Butler against the Farmers’ Insurance Company, in the court of common pleas of Holmes county, on a policy of insurance, wherein it was stipulated, among other things, as follows: “ The Farmers’ Insurance Company, by this policy of insurance, and in consideration of a cash premium of $12 received of J. .R. Butler, do hereby insure unto the said J. R. Butler the sum of $1,200, on the following property, situated in Ehllbuck township, Holmes county, Ohio, and more particularly described in application and survey No. 11,974, which is hereby made a part of this policy, to wit: On dwelling house, $800.00; barn, $400.00. And said Farmers’ Insurance Company hereby agrees to make good unto the said assured, his heirs, executors, administrators, or assigns, all such loss or damage, not exceeding in amount the several sums insured, as shall happen by fire or lightning to any of the aforesaid property, from the 28th day of March, 1873, at 12 o’clock at noon, to the 28th day of March 1878, at 12 o’clock at noon, and to be paid ninety days after due notice and proofs of the same shall have been made by the assured and received at this office, with the terms and provisions of this policy.”
    The application thus made a part of the policy, contained, among other things, the following representations:
    “ The above description and diagram contains a full and accurate description of the buildings and property insured and, the insurance on the buildings does not exceed two-thirds their actual cash value. ' J. R. Butler.”
    During the life of the policy, the dwelling house insured was totally destroyed hy fire. The petition prayed for a judgment for $800.00, the full amount of insurance on the dwelling house.
    The answer denied that the dwelling house destroyed was of the ^alue of $800.00.
    During the trial in the court of common pleas, the following bill of exceptions was filed :
    “ Be it remembered that at the trial of the above cause, the defendant, to maintain the issue on her part, offered evidence tending to show that the dwelling house, mentioned in plaintiff’s petition, was not worth, at the time the same burned, more than the sum of four hundred dollars, and that the plaintiff was not damaged by the burning of the same more than the said sum of four hundred dollars ; and that to said evidence the plaintiff, by his attorneys, objected; which objections the court sustained, to which ruling and decision the defendant excepted, and now comes in open court with this, her bill of exceptions, and prays that the same may be allowed, signed and sealed, and ordered to be made a part of the record in this case, which is accordingly done.”
    Trial to the court. Judgment for plaintiff for $800.00 and $34.80 interest, and also for costs.
    On proceedings in error in the district court it was assigned for error that the court of common pleas erred in excluding evidence as set forth in the bill of exceptions ; but the district court affirmed the judgment below.
    This proceeding is now prosecuted to reverse the judgment of the district and common pleas courts.

      Critchfield <& Graham, for plaintiff in error:
    It is claimed for the defendant, that he is entitled to receive the full amount of his insurance, notwithstanding his actual loss may not have exceeded half that sum ; or, in other words, the sum insured, and not the value of the property destroyed, should be his measure of damages.
    The contract is in writing, and unless by its terms the company manifestly intended to value the risk and the loss, the policy is an open and not a valued one, and the measure of damages is the value of the property at the time destroyed. Wood on Ins. 92, 93, § 41; Planders on Ins. 77; Laurent v. Chatham Ins. Co., 1 Hall (N. Y.) 41; Sedgw. on Dam. 6 ed. 306 ; 2 Parsons on Cont. 6 ed. 453; 2 Greenl. on Ev. 13 ed. 367, § 407; Noble v. North Am. Ins. Co., 1 Sandf. 551; 1 Duer on Ins. 94, §§ 4, 8, 9, 10; Wallace v. Insurance Co., 4 La. 268; Cox v. Ætna Ins. Co., 29 Ind. 568; Phillips on Ins. 1213; Lycoming Ins. Co. v. Mitchell, 48 Penn. St. 367; 3 Rich. 331.
    Neither the rate of premium nor the sum insured determines the measure of damages. In the absence of an express agreement it is the. actual loss sustained; when the value of the property is fixed by the parties the insured is entitled to recover such a portion of the valuation as the insurer has agreed to pay. Cox v. Charleston Ins. Co., Wallace v. Insurance Co., 4 La. 289; Wood on Ins. 97, § 42.
    "Valuation is seldom made in fire policies. Parsons on Cont. 6 ed. 453; Phillips on Ins. 1211; Hughes on Ins. 310 ; Sedgw. Dam. 6 ed. 306 ; 4 Louis. 289 ; Brinley v. Insurance Co., 11 Met. 195; 9 Met. 205.
    When it is intended to make the estimation conclusive it is usually accomplished by writing in the policy and after the description of the property, the words “ valued at.” Phillips on Ins. 1178, 1179; Wallace v. Insurance Co., 4 La. 289; Wood on Ins. 93, §41; Hughes on Ins. 310; Wellandon v. West. Ins. Co., 9 La. 23.
    If the policy contained a reference to the value stated by defendant in his application in such a way as to show that the company adopted the valuation as true, the policy, in the absence of any stipulations to the contrary, would be a valued one. Nichols v. Fayette Mut. T. Ins. Co., 1 Allen 63; Fuller v. Boston Ins. Co., 4 Met. 206.
    But the mere reference to the application as a part of the policy, cannot be construed as the agreement of the company to be bound by the defendant’s statement as to the value. Wood on Ins. 102, § 43, says, that “if the application is made a part of the policy, a valuation therein is as effectual to make the policy a valued one as though stated in the policy itself,” and in support of this cites the case of Nichols v. Fayette Mut. Ins. Co., 1 Allen, 63; and Phoenix Ins. Co. v. McClean, 100 Mass. 415. But if the author intends to be understood as saying that the mere statement by an applicant of the value of the property to be insured, without an agreement of the insurer contained in the application that the valuation is true, then clearly lie is unsupported by authority. In the case of Nichols v. Fayette Mut. Ins. Co., the policy recited that “ the amount insured is not more than three-fourths of the value of the property as appears by the proposal of the insured.” And in the case of Phœnix Ins. Co. v. Moses, it does not appear that any valuation was made in the application at all, and besides, in that case the policies were in marine insurance, where the valuation is usually adopted by the insurer. See Sedgw. on Dam. 6 ed. 306 ; Parsons on Cont. 6 ed. 453. Where the charters and bylaws of mutual companies become part of the policies, and the companies are forbidden to insure for more than a certain proportion of the value of the buildings, valuations will be held binding on both parties. 2 Parsons on Cont. 6 ed. 455 ; Phillips v. Merrimac Mut. Ins. Co., 10 Cush. 350; Bordan v. Hingham Mut. Ins. Co., 523; Haywood v. N. E. Mut. Ins. Co., 10 Cush. 444; Fuller v. Boston Ins. Co., 4 Met. 206; Holmes v. Charleston Ins. Co., 10 Met. 211. In all other cases it must appear clearly in the policy that the insurer intends to value both the risk and the loss. See authorities first cited
    The policy expressly provides the amount the company should pay in the event of loss, viz : “ All such loss or damage, not exceeding in amount” the sum insured as should “happen by fire or lightning” to the property at risk. It is also provided in the event “ any difference should arise touching any loss,” etc., the same “ shall at the written request of either party, be submitted by them to impartial and disinterested arbitrators.” These provisions clearly indicate, we think, that the company should be held for no more than the loss sustained.

      StUwell & Hoogla/nd, for defendant in error:
    The only question made in this case is, whether this is a valued or an open policy. When the application is referred to as forming a part of the contract, the statements therein contained are held to have the force and effect of warranties. May on Insurance, 164, § 159; Nichols v. Fairfield Mut. Ins. Co., 1 Allen, 63, and other authorities cited in Wood on Ins. 102, § 43, note 1.
    Where the language of reference is ambiguous, and does not clearly intend to make the application a part of the policy, the doubt will be construed against the company. May on Insurance, 165, par. 160.
    In this case the application is made a part of the policy, by the following language: “ And more particularly described in application and survey No. 11,974, which is hereby made a part of this policy, to wit: One dwelling house, $800.” The building insured has been totally destroyed by fire. The amount insured on the dwelling house is $800. The application states that does not exceed two-thirds its actual cash value. The valuation thus agreed upon by the parties is conclusive, in the absence of frand. Luce v. Dorchester Mutual Fire Ins. Co., 105 Mass. 297, 396; 7 Ohio, pt. 1, 284; Portsmouth Ins. Co. v. Brazee, 16 Ohio, 81; Wood on Ins. 93, § 41, V. N. 4; Fuller v. Burton Ins. Co., 4 Metc. 206, and authorities cited; also, Wood on Ins. p. 103, note 1, and text same p., Shaw, J.

      A policy having this clause, the amount insured being not more than two-thirds the value of said property, as appears by the application of the said insured, is a valued policy. May on Insurance, 29, par. 31; Phœnix Ins. Co. v. McLoon, 100 Mass. 475. This policy does not limit the value of the property at the time of loss. If it did, no doubt such a provision would be controlling. May on Insurance, 29, 30, par. 31.
    In this case a total loss, and no occasion for “ any difference” to arise “touching any loss or damage” to be submitted to arbitrators, and if the loss were partial as a damage to dwelling house of $800 or less, then a difference might arise as provided in the policy; but even though the loss were $800 or less, then a difference might arise as provided in the policy; but even though the loss were $900, no more than $800 could be collected, as the policy recites “ all such loss or damage, not exceeding in amount the several sums insured.”
    In Wallace v. Insurance Co., 4 La. 239, cited by plaintiff in error, the policy contained these words: “ The said loss or damage to be estimated according to the true and actual value of the said property at the time the same shall happen.”
    In reply to first citations of plaintiff’s brief, Wood on Insurance, 93, § 41, 3ays: “ So, where the policy recites that the amount insured is not more than one-half, two-thirds, three-fourths, etc., of the value of the property insured, and indeed in all cases, where, from the language used, it is evident that the policy was intended as a valued policy.” It is to be so treated without reference to the words or form of expression employed.
   McIlvaine, J.

Whether the policy of insurance in this suit is valued or open, is the sole question in this case.

A policy of insurance is essentially a contract for indemnity in case of loss. Wager policies are contrary to public policy. The insured must have an interest in the subject of the insurance — an interest in its preservation. In case of loss, his contract rightfully entitles him to compensation — nothing more. The reason upon which this principle rests, is the prevention of fraud and crime, by removing all inducement and temptation to commit them, which would naturally arise from the great disparity between the consideration paid and the indemnity received by the insured. This disparity, however, does not amount to inadequacy or even a suspicion of fraud; because of the supposed remoteness of the contingency of loss; nevertheless its existence requires the utmost good faith on the part of the insured. While these considerations do not, in the least, exempt the insurer from liability on his contract, they do show that in the absence of a contract to the contrary, the amount of recovery on a policy of insurance should be limited to the actual loss sustained by the assured on account of the risk against which the policy was taken. In other words, a policy of insurance must be regarded as an open one, unless it appears to have been the intention of the parties to the policy, upon a fair and reasonable construction of its terms, to value the loss, aud thereby fix, by contract, the amount of recovery.

Mr. Wood, in his treatise on fire insurance, section 41, says: “ Valued policies are those in which both the property insured and the loss are valued, and which bind the insurer to pay the whole sum insured, in case of total loss. They may be said to be policies in which the insurer himself, at the time of making the policy, assesses the damages in case of total loss, unless fraud, inducing an over-valuation on the part of assured, is established.” And further along in the same section, he says : “ If there is anything in the policy that clearly indicates an intention on the part of the insurer to value the risk and the loss, in whatever words expressed, the policy is valued, otherwise it is open.” Again, “ No particular form of expression is necessary; the intention of the parties, gathered from the whole instrument, must determine the matter.” Fuller v. Boston, &c. Ins. Co., 18 Pick. 523.

It has been decided that a policy of a company whose charter limited its liability to a certain proportion of the actual value of the property insured, which refers to the value of the property as stated in the application of the insured, is a valued policy. 10 Cushing, 551. Other cases go so far as to hold generally, that a policy which refers to the valuation of the property as it appears in the application which is made a part of the policy, is a valued one. 1 Allen 68; 100 Mass. 475.

Without expressing an opionion as to the soundness of such construction when nothing further appears in the policy, we are satisfied that the policy before us, which contains the further stipulation, that “said Farmers’ Insurance Company hereby agrees to make good unto the said assured, his heirs, executors, administrators or assigns, all such loss or damage, not exceeding in amount the several sums insured, as shall happen by fire or lightning to any of the aforesaid property, from the 28th day of March, 1873, at 12 o’clock at noon, to the 28th day of March 1878, at 12 o’clock at noon, and to be paid ninety days after due notice a/nd proofs of the same shall have been made by the assured and received at this office, with the terms and provisions of this policy,” shows, that it was not intended by the insurer to make the sum assured the measure or value of the damages, although the loss might be total. Proofs of loss or damage here required as a condition precedent to the payment, refer to cases of total as well as partial losses. The amount of liability on the policy was thus left open to inquiry, limited, however, by the amount of insurance named in the policy.

The court of common pleas, therefore, erred in rejecting testimony offered by the defendant below as to the amount of actual loss. And the district court erred in affirming the judgment of the common pleas.

Judgments reversed and cause remmded.


source: Caselaw Access Project

author: Johnson, J.

license: Public Domain

text:
    Boling v. Young.
    1. A surety on a judgment is discharged from liability thereon, by a valid contract for an extension of time for the payment thereof, made by the judgment creditor without the knowledge or consent of the surety.
    2. An undertaking for stay of execution of a judgment on the docket of a justice of the peace, executed after the time allowed by law, in pursuance . of an agreement of the parties, is valid as a common law contract, if supported by a sufficient consideration, though it may not be effective as a statutory undertaking.
    3. One who executes such an undertaking at the instance of the principal judgment debtor, without the knowledge or consent of the sureties thereon, knowing that they are such, is liable on the undertaking to the creditor, if his principal makes default, although the sureties are thereby released from liability.
    4. Where, after stay of execution has expired on such a judgment, a surety, who has been thus released, is compelled to pay the judgment to save his goods and chattels from forced sale by an officer who has seized them on execution issued on said judgment, he may recover back from the judgment creditor the amount so paid. Such compulsory payment is not a satisfaction of the judgment or of the undertaking, and the creditor may, after recovery back against him, maintain an action on the undertaking if the principal makes default.
    Error to tbe District Court of Knox County, Obio.
    The question involved arises on a demurrer to an amended petition of defendant in error.
    It is alleged by Young, that on the 24th of April 1874, he commenced an action before a justice of the peace, on a promissory note, against Joseph Brown, principal, and Joseph Jenkins and William King, sureties, and on the 2d of May 1874, recovered a judgment thereon, against Brown and Jenkins, for $108.75. The case was continued as to King, until May 9th, 1874, when a like judgment for the same amount was rendered against King.
    On the 18th of May, the plaintiff consented that Brown might stay the execution. Accordingly he, without the knowledge or consent of Jenkins or King, procured Boling, the plaintiff in error, to execute the following undertaking:

      “ I, G. W. Bowling, resident of Knox county, as surety for stay of execution in the above cause of Andrew Young against Jos. Brown, James Jenkins and William King, do undertake to said plaintiff that in default of payment by defendants, I will pay the judgment, with interest and costs, and costs that may accrue. G. W. Bolins.

      “ Approved by me and signed before me this 18th day of May, a. d. 1874. B. A. F. Greer,
    Justice of the Peace.

      “ Bail allowed by order of plaintiff.”
    Boling executed this undertaking at the sole request of Brown, with full knowledge that Jenkins and King were sureties only, and after being indemnified for so doing by Brown.
    When the stay expired, plaintiff caused execution to issue against all the defendants to the judgment, and for want of property of Brown, to satisfy the same, the constable seized and was about to sell the property of Jenkins, to save which he paid to the constable $138.45, being the judgment, with interest and costs on the writ. He immediately brought suit in the Knox common pleas against Young to recover back the same, on the ground that he had been discharged from all liability on the judgment, by the acts of Young and Brown, as before stated, and such proceedings were had that he recovered a judgment against Young, for the amount he had paid the constable, with interest, and. $10.20 costs, making an aggregate of $154.41.
    Young now seeks to recover this amount, with interest from the time judgment was rendered against him in favor of Jenkins.
    Upon this state of facts the common pleas held there was no cause of action. The district court reversed this holding, and the case is here to review the decision of the latter court.

      Oritohfleld & Graham, for plaintiff in error :
    In the petition of the plaintiff below, it is averred that on April 23, 1875, Jenkins paid and satisfied the plaintiff’s judgment against Brown, Jenkins and King, which satisfied the undertaking made by Boling, as he could not be liable on that undertaking as surety for the defendants beyond the express provisions of the same. Hall v. Williamson's Administrators, 9 Ohio St. 17; Bank of Steubenville v. Carroll's Administrators, 5 Ohio, 573; State v. Medary, 17 Ohio, 554; State v. Crooks, 7 Ohio, 573; McGovney v. State, 20 Ohio, 93; State
      v. Cutting, 2 Ohio St. 1, 6. The satisfaction of the judgment of Yormg against Brown, Jenkins and King by the payment of it in full by Jenkins on Apiril 23, 1875, is a bar to an action against Boling, upon a bond for a stay of execution on that judgment. Cass v. Adams, 3 Ohio, 223. The allegation that Boling executed the undertaking without the consent of Jenkins, at the instance of his co-defendant Brown, furnished no ground for the recovery of a judgment by Jenkins against Young, and does not support Young in an action against Boling on the bond, as Young was not responsible for the act of Boling, and the bond for stay of execution did not release Jenkins from his obligation to Young. Riblet v. Davis, 24 Ohio St. 114. If Jenkins had caused it to be certified on the docket of the justice that he was surety for Brown, he might have maintained an action against Bowling, upon payment of the judgment, but not against Young. Dennier v. Myers, 20 Ohio, 336. The knowledge of the justice that Jenkins was surety did not relieve him from the necessity of having the fact of his suretyship certified on the record, and having neglected to do so, he was in no position to claim the benefit of the statute'protecting sureties. Rev. St. §§ 5419, 6656, 6663; Elliott v. Elmore, 16 Ohio, 27; Swan’s Tr. 10 ed. 203.

      W. O. Cooper and H. E. Green, for defendant in error:
    We insist, that, as Jenkins was only surety for Brown on the note upon which the judgment was rendered; knowing which Boling executed the bond, as stay bail, at the request of Brown as his surety, in the absence of Jenkins and without his consent or knowledge, and after being fully indemnified by Brown; Boling became “ primarily liable,” and no execution should have been issued against Jenkins until Boling had been exhausted. Swan & Sayler St. 422; Rev. St. § 6654. Boling executed the bond in pursuance of the statute, which notified him that he was primarily liable, and the provisions of which, so far as fixing the liabilities of the parties, were part of the bond. Therefore Jenkins, who was wrongfully compelled to pay the judgment to save his property from sale after the same had been levied on and advertised, rightly compelled Young to repay him, thus leaving the parties in the same position they were before the payment by Jenkins. The payment by Jenkins under compulsion in no way changed his legal rights nor the rights of the other parties. Knox County Bank v. Lloyd's Administrator, 18 Ohio St. 353; Mays v. Cincinnati, 1 Ohio St. 268-278; Knox County Bank v. Doty, 9 Ohio St. 505-509; Baker v. Cincinnati, 11 Ohio St. 534. Jenkins could have recovered in an action against Boling. Denier v. Jenkins, 20 Ohio St. 336. And if Jenkins when wrongfully compelled to pay could recover from Boling, certainly Young, the judgment creditor to whom Boling undertook to pay, can recover.
   Johnson, J.

More than ten days had elapsed after the judgment against Brown and Jenkins had been rendered, before this undertaking for stay of execution was given by Boling. It was done without the knowledge or assent of Jenkins, who was known to Boling and Young as surety only, and with the permission and consent of Young, the judgment creditor, at the request of Brown, the principal to the judgment.

If the same effect is to be given to this undertaking, as if given within the ten days allowed by law for entering stay, then it follows, that, as between Boling and Jenkins, who was surety only, the former was primarily liable on the judgment, the assent of the latter to giving such undertaking, being wanting. S. & S. 424; R. S. 6654.

If this undertaking be regarded as a statutory obligation, then, in case of compulsory payment of the judgment by Jenkins; he could have maintained an action on the undertaking, by reason of the primary liability of Boling.

The compulsory payment by Jenkins would not be a satisfaction of the condition of the stay bail. It was so held in Dernier v. Jenkins, 20 Ohio St. 336.

For equally cogent reasons, Jenkins had a right of action against Young, the judgment creditor, to recover back the amount he was compelled to pay to release his property. As to Young, the compulsory payment was not a satisfaction of the judgment in his favor.

But the undertaking was given after the time had elapsed, within which it could be taken. It was competent, however, for the parties to secure the extension of time for payment by a contract valid at common law. If supported by a sufficient consideration, such a contract is mutually binding on the parties to it. In legal effect, Boling promised to become surety for the payment of this judgment if Young would wait eight months. Young agreed to this, and fully performed the promise on his part. Boling was therefore liable on this undertakings as a common law contract, unless he was discharged by the payment by Jenkins, under compulsory process to save his property. Duchwall v. Rodgers, 15 Ohio St. 544.

It was a binding contract, between Young, as judgment creditor, and Brown, the principal debtor, and Boling, as his surety, that if Young would extend the time of payment eight months, Boling would pay the judgment in default of payment by his principal. As Jenkins, the surety in the judgment, was not a party to this contract, and did not assent to it, he was discharged from all liability. Blazer v. Bundy, 15 Ohio St. 57.

It remains to inquire, what was the effect of the compulsory payment by Jenkins ? It is claimed that this payment satisfied the judgment and therefore the condition of the undertaking was not broken. That condition was that in default of payment of the judgment by “ defendants ” he would pay the same. The defendants were Joseph Brown, James Jenkins and William King. The two latter, Boling had aided to discharge from liability, so that in fact Boling, was surety for Brown only.

The payment by Jenkins was made under duress of goods and chattels, and gave him a right of action to recover the amount, either on the undertaking, as was held in Dernier v. Jenkins, supra, or against Young. Such a payment did not operate as a satisfaction of the judgment. As between the parties to it, who had not been discharged by the extension of time, it was still in full force. Boling was liable to Young for the default of his principal. As Brown had made default, he was liable to Young, and the compulsory payment by Jenkins, which he recovered back in an action against Young, was not a satisfaction of the judgment nor a performance of the condition of the undertaking. Boling remained liable thereon to the extent of the judgment, interest and costs thereon, but not for costs adjudged against Young in the action against him by Jenkins to recover back the amount paid. Baker v. Cincinnati, 11 Ohio St. 534; Denier v. Jenkins, 20 Ohio St. 336; Stephan v. Daniels, 27 Ohio St. 527.

Judgment of the district cout't affirmed.


author: White, J.

text:
    Keating v. Cincinnati.
    A municipal corporation in making a street along a hillside, so excavated the ground in the street as to cause the land above to slide and injure the lot of the plaintiff. Held:

    1. That the fact that the plaintiff’s lot did not abut immediately on the street did not exempt the corporation from liability. Its liability did not depend upon the ownership of the injured property, but upon the extent of the injury of which its removal of the lateral support of the hill was the efficient cause.
    2. That the liability extends to damages to buildings as well as to the land in its natural state, where the owner is not chargeable with negligence in making such improvements, and such damages result from want of due skill and care in making the street.
    Error to the District Court of Hamilton County.
    The original action was brought by Edward Keating, to recover the damages he sustained to his premises by the construction of Gilbert avenue in said city. The plaintiff’s lot fronts on the west side of Sixth street twenty-five feet, extending back towards Gilbert avenue ninety feet, more or less. The petition states that more than twenty-six years since there was erected upon the front portion of said lot a dwelling-house and outhouses, to be used as a dwelling for himself and family, and which he has so used and occupied ever since. That in the year 1873, the defendant, in constructing Gilbert avenue, illegally and wrongfully caused the base of the hillside to be cut away and i*emoved, upon and above which the lot and improvements of the plaintiff are situated, whereby the surface of the plaintiff’s lot was made to slip, the support removed, injuring the lot, breaking the surface, the foundation walls of his house, and rendering the dwelling and improvements untenable.
    The petition charges negligence and want of skill in the original location and grade of the street and in the execution of the work which caused the injury complained of. And also averred that his improvements were made in good faith and with reference to the grade of the streets and alleys existing at the time, and that he had no reason to expect or apprehend the city would ever cause a cut to be made in the rear of his lot, of the nature and character of the one so made.
    The answer took issue with the averments in the petition.
    On the trial, as it appeared by the bill of exceptions, the lot of the plaintiff lies with reference to Gilbert avenue, thus:

      It also appeared that the plaintiff bought his lot in 1864; and that it had a house on it fronting on Sixth street, erected more than twenty-five years before the action was brought. That the land on which Gilbert avenue lies had been condemned by the city for the purpose of an avenue in 1869, but that none of the plaintiff’s ground was condemned; that Gilbert avenue was a new wide street projected and laid out in 1869, and ran diagonally to the old established streets and at a different grade ; that the plaintiff’s lot had been improved, in accordance with the established grades of the adjoining streets, and used for over thirty years; that without the cutting in the avenue his building, and lot would have remained undisturbed, and his lot lies fifteen or twenty feet east of the avenue, with a ten feet unimproved alley between, on which his lot abuts at the west end. Gilbert avenue is built along a hillside; the hill rises to the east so that the plaintiff’s lot slopes upward from the avenue; Sixth street is above both and the hill continues to rise until it reaches perhaps a hundred feet above the avenue and the ground falls away westward below the avenue.
    The bill of exceptions also contains the following statement:
    “The plaintiff then gave testimony as to the values and amount of injury, and the reasonable cost of repairing the same, and the values of such improvements as he claimed to be wholly destroyed by the cut and the slip, which amounted in all to $985. And thereupon it was agreed between the parties that plaintiff’s estimates were reasonable and honest, and neither side would offer testimony on that point, either to corroborate or attack his testimony as to amount of damages, or value, or cost of repairs, they being accepted as true, which consisted in destroying totally the stone foundations, breaking and cracking the walls and ceilings, breaking and destroying and rendering entirely useless and valueless a cistern and privy, and compelling plaintiff to make new foundation walls, paint and plaster anew in great part his house; also, great loss of rents; also, the general deteriorar tion.”

      The remaining evidence material to be noted is- stated in the opinion.
    The court charged the jury as requested by the defendants, to which there was no exception; and the jury returned a verdict for the plaintiff, assessing his damages at $450.
    A motion for a new trial was made by the defendant, which was overruled and judgment rendered on the verdict. On error the judgment was reversed by the District Court. The present petition in error is prosecuted to reverse the judgment of reversal.

      Mallon <& Coffey, for plaintiff in error :
    1st. Can a municipal corporation, in the construction of one street on a hill-side, cut away the foot of a man’s lot without being responsible for the damages done to buildings fronting on and built with reference to the grade of another street ?
    If,' as claimed in this case, the city is liable for changing the grade of a street in front of a man’s property, all it has to do to escape that liability is simply to make such a street behind a man’s house as will knock down his house and improvements, then it can change the grade in front without risk or damage, as the improvement behind and not the change in front did the mischief. City of Cincinnati v. Penny, 21 Ohio St. 499.
    We claim : 1st. That the rule of law in cases of this kind, as laid down in Radcliff’s Ex'rs v. Mayor of Brooklyn, 3 N. Y. 205; Cheever v. Shedd, 13 Blatchf. 263; and 25 Vt. 63, is not to govern in Ohio. Crawford v. Village of Delaware, 7 Ohio St. 366. 2d. That a municipal corporation is responsible for injuries, direct and consequential, to buildings on abutting property, where it acts negligently, carelessly, or maliciously. 3d. That under all circumstances, it is responsible for all injuries done to the lot itself. 4th. That although the city make its improvements carefully, under full authority, within the lines of its streets, where there is no “ negligence or indiscretion,” imputable to the lot-owner, and where he does not contribute to the injury, then the city is liable. 5 th. Keating’s house having stood over twenty years, he had a prescriptive right to the support, unlawfully taken by the city.

      Kumler, Ampt c& Warrington, city solicitors, for defendant in error:
    We claim that a municipal corporation is not liable to a lot owner, whose lot does not abut upon a street, for injuries to buildings, resulting from the construction or improvement of its streets, provided that its officers and agents, in making such improvements, act within the scope of their authority, and without negligence or malice.
    The sole question in this case is one of lateral support. The plaintiff’s lot on which his buildings were erected slid towards the avenue, where a cut had been made to the depth of nine feet in order to bring it down to grade. His house was built on the side of a hill very difficult of ascent, about one hundred feet up the hill, opposite the cut. He claims that the city deprived him of the lateral support of his lot, in consequence of which his buildings were damaged. There was a ten foot unimproved alley between the rear end of his lot and the avenue. None of his ground was condemned by the city.
    As to what is lateral support, see Washburn on Easements and Servitudes, 430, ch. 4, 2 ed.; McGuire v. Grant, 1 Dutcher (N. J.) 556 ; Charless v. Rankin, 22 Mo. 566; Farrand v. Marshall, 19 Barb. 385; Gilmore v. Driscoll, 122 Mass. 201; Solomon v. Vintners’ Co., 4 H. & N. 585; Bonomi v. Backhouse, 9 H. of L. Cas. 503; Birmingham v. Allen, L. R. 6 Ch. Div. 296, 297; Cooley on Torts, 594; 20 Mag. & R. 82. As to the doctrine of lateral support, see Wood on Nuisances, ch. 5, pp. 173 and 174; Thurston v. Hancock, 12 Mass. 220; Gilmore v. Driscoll, 122 Mass. 199; City of Quincy v. Jones, 76 Ill. 231; Foley v. Wyeth, 2 Allen (Mass.) 131; McGuire v. Grant, 1 Dutcher (N. J.) 356; Charless v. Rankin, 22 Mo. 466; Farrand v. Marshall, 19 Barb. 380; Richardson v. Vermont Cent. R. R. Co., 25 Vt. 465. The leading English cases are: Wyatt v. Harrison, 3 B. & Ad. 871; Bononi v. Backhouse, 9 H. L. Cas. 502, 503; Hunt v. Peake, Johns. Chan. (Eng.) 705, Soloman v. Vintners' Co., 4 Hurls. & N. 585;
      Birmingham v. Allen, L. R. 6 Ch. Div. 284, 297. It is claimed that the right to lateral support can be acquired by-prescription as against the city. We deny the proposition. Wood on Nuisances, § 212; 2 Blacks. Com. 265 ; Washburn on Easements and Servitudes, *430; Gilmore v. Driscoll, 122 Mass. 207.
    In Ohio, damages to property owners from changes of grade and injury to access are limited to abutting and improved property. The damage must be the result of a change of grade, not of the construction of a new street. The property in question in this case did not front nor abut upon Gilbert avenue.
    Upon principle, we are unable to see why the case of Cincinnati v. Penny, 21 Ohio St. 499, is not decisive of this one.
   White, J.

The only question in this case is, whether the evidence supports the verdict. The jury was instructed as requested by the defendant; and as the instructions are not set out in the record they must be presumed to have been correct.

It appears from the evidence that the defendant in excavating for the avenue on the hillside, below the plaintiff’s premises, caused damages to his lot as well as to the improvements. The aggregate amount of such damages is stated to have been $985; but how much of that sum is attributable to the lot without the improvements, and how much to the improvements is not specifically stated. The jury assessed the damages at $450, which was less than half the damages admitted to have been sustained, including the damages to the improvements. The finding of the jury must be presumed to have been in accordance with the instructions of the court, and may have included only the damages to the lot without reference to the improvements.

The excavation on the upper side of the avenue, opposite the plaintiff’s premises, was twelve feet; and the whole surface of the hill moved from a point on Sixth street down, passing diagonally under the plaintiff’s dwelling, showing a wide opening in the ground.

A. E. Tripp, the city civil engineer, testified:

“ The cut caused the slip, and we did nothing to stop the slip; I saw it at the time. A retaining wall would be the only way to stop a land slide, to put it in by sections as the cut progressed. We made no wall in front of Keating’s lot.”

A. L. Anderson, who was the city civil engineer at the time of the trial, testified as follows:

“The hill is of alternate layers of clay, more or less hardened, and limestone and surface soil; it is the latter that slips on the smooth surface of the former. There is no way to prevent the slipping, except by a retaining wall or drains on the property, made more cheaply by trenches and drains up the hill itself, dug down to the solid part of the hill so as to carry away the water, which causes the surface to slide on the layers of blue clay underneath, as if on glass. It is impossible to foresee the weight of the soil that will slip, so as to know the size of retaining wall required.”

It was admitted that the city built no retaining walls opposite any of the property on the avenue at the time in controversy ; but that she did subsequently.

This case is governed by the principles settled by our own decisions, whatever may have been held elsewhere. In Rhodes v. The City of Cleveland it was held that a municipal corporation, acting within the scope of its powers, was liable for cutting ditches and water-courses in such a manner as to cause the water to overflow and wash away the plaintiff’s land. In the opinion of the court the principle of the decision is thus stated: “ That the rights of one should be so used as not to impair the rights of another, is a principle of morals, which, from very remote ages, has been recognized as a maxim of law. If an individual, exercising his lawful powers, commits an injury, the action on the case is the familiar remedy; if a corporation, acting within the scope of its authority, should work wrong to another, the same principle of ethics demands of them to repair it, and no reason occurs to the court why the same should not be applied to compel justice from them.” 10 Ohio, 160. This case was decided more than forty years ago, and has been often approved since. McComb v. Akron, 15 Ohio, 479; Akron v. McComb, 18 Id. 229; Crawford v. Delaware, 7 Ohio St. 459. See also Pumpelly v. Green Bay Company, 13 Wall. 166; and Eaton v. Railroad Company, 51 N. H. 504.

In this state, private property is entitled to the same protection against all classes of corporations as against natural persons, subject to.the right of appropriating such property to public use upon the terms of making full compensation.

The case under consideration involves no question of inconvenience to the owner, caused by the making of a neighboring or abutting public improvement, leaving the corpus of the property intact; but the case is one of the invasion or injury of the property itself. And it can make no difference in principle, whether the property is flooded and the soil washed away, or the property is injured and the soil removed from some other cause. It is the injury to the property that gives the right of action; and the author of it is bound to make reparation.

It is claimed on behalf of the city that as the plaintiff’s lot does not abut on the avenue, and as the damages resulted from the removal of the lateral support to the abutting property, the city is not liable. The fact that the property of others intervened between the lot of the plaintiff and the avenue can make no difference. The liability would be the same whether the several parcels were owned by one or by different owners. The liability of the city did not depend upon the character of the ownership of the damaged property; but upon the extent to which its wrongful act was the cause of the damages.

In regard to the buildings and improvements, it may be said that there is nothing in their character or in the circumstances, to indicate that the slide in the lands would not have occurred as it did, if they had not been there. The additional weight which they imposed cannot reasonably be supposed to have constributed materially to the giving away of the soil.

The case of Gilmore v. Driscoll (122 Mass. 199), relied upon by the defendant, fully supports the verdict in this case, and would have warranted the jury in allowing the damages to the improvements as well as to the lands, where the plaintiff is not chargable with negligence in making them. On page 205, referring to the former case of Foley v. Wyeth, it is said, “ that the right of support from adjoining soil for land in its natural state stands on natural justice, and is essential to the protection and enjoyment of property in the soil, and is a right of property which passes with the soil without any grant for the purpose. It is a necessary consequence from this principle, that for any injury to his soil, resulting from the removal of the natural support to which it is entitled, by means of excavation of an adjoining tract, the owner has a legal re-’ medy in an action at law against the party by whom the work has been done and the mischief thereby occasioned. This does not depend upon negligence or unskillfulness, but upon the violation of a right of property which has been invaded and disturbed. This unqualified rule is limited to injuries caused to the land itself, and does not afford relief for damages by the same means to artificial structures. For an injury to buildings, which is unavoidably incident to the depression or slide of the soil on which they stand, caused by the excavation of a pit on adjoining lands, an action can only be maintained when a want of due care or skill, or positive negligence, has contributed to produce it.’ ”

It is upon this principle that the City of Cincinnati v. Penny (21 Ohio St. 499) was decided. The city in that case was held exempt from liability for damages to buildings, because it was free from negligence in making the excavation. The same rule of liability from'want of proper care and skill is held in City of Quincy v. Jones, 76 Ill. 232.

The evidence in this case would have warranted the jury in finding that the city failed to exercise such care and skill in making the avenue in question; and hence the judgment of the court of common pleas ought not to have been reversed.

Judgment of the district cowrt reversed; and that of the common fleas affirmed.

Longworth, J., did not sit in the case.


author: Okey, C. J.

text:
    Railway Co. v. Sharpe.
    A railroad company exercising its powers subject to the provisions of the present constitution, and required by the act of 1874 (71 Ohio L. 85), passed since its incorporation, to construct and maintain cattle-guards at places on its road where public highways are or may be constructed across its track, is not' entitled to compensation for making or maintaining such cattle-guards.
    Error to the District Court of Ashtabula County.

      James Mason, Ashley Pond, Gyrus D. Roys, and O. G. Getzen-Panner, for plaintiff in error:
    Cited 71 Ohio L. 86; Const, art. 1, § 19; Railroad Co. v. Bloomington, 76 Ill. 447; Stats, of Ill., ed. of 1880, 1152; Railway Co. v. Maurer, 21 Ohio St. 421; Potter v. Bunnell, 20 Ohio St. 150; Ferris v. Bramble, 5 Ohio St. 109; Railroad Co. v. Clinton Co., 1 Ohio St. 77; Bridgeport v. Railroad Co., 36 Conn. 255; Crossley v. O'Brien, 24 Ind. 325; Mills on Em. Dom. §§ 33, 43, 214; 1 Redfield on Rail. 400; People v. Railroad Co., 67 Ill. 118; Reg. v. Fly, 69 E. C. L. 843; Railroad Co. v. Moffitt, 75 Ill. 524; Driver v. Railroad Co., 32 Wis. 584; Welch v. Railroad Co., 27 Wis. 108; State Railroad Tax Cases, 92 U. S. 698; Old Colony, &c. Co. v. Plymouth, 14 Gray, 155; Railway Co. v. Ogilvy, 2 Macq. 229; Metropolitan Board of Works v. McCarty, L. R. 7 H. of L. 256; Duke of Buccleuch v. Metropolitan Board of Works, L. R. 5 H. of L. 418; Selbourne v. Fishmongers’ Co., L. R. 1 App. Cas. 662. They also commented on Railroad Co. v. Railroad Co., 30 Ohio St. 604, and cases there cited.

      Theodore Redi and Fdward O. Wade, for defendants in error:

      Railroad Co. v. Railroad Co., 30 Ohio St. 604; 71 Ohio L. 86; Railway Co. v. Dayton, 23 Ohio St. 517; 27 N. Y. 345; 21 O. S. 586; 26 Vt. 717; 27 Vt. 140; 2 Redfield on Rail. § 232; 2 S. & C. 1289; 66 Ohio L. 68; 69 Ohio L. 187.
   Okey, C. J.

In 1878, the commissioners of Ashtabula county, in pursuance of proper proceedings for the purpose, made an order for the establishment and construction of a county road in that county, which county road crosses the track of the plaintiff in error, the Lake Shore and Michigan Southern Railway Company, on a level, and a further order was made awarding damages to the railway company, from which order the company appealed to the probate court. In that court the question was whether the company was entitled to compensation for making and maintaining two cattle-guards across its track, one on each side of the county road. The probate court excluded evidence tending to show the cost to the company in furnishing material and constructing such guards, and also the cost of maintaining the same, and the company excepted. On petition in error the court of common pleas reversed the judgment of the probate court for excluding such evidence, the district court reversed the judgment of the court of common pleas and affirmed that of the probate court, and this petition in error is prosecuted by the company to reverse the judgment of the district court.

The proceeding for the establishment of this county road and the assessment of damages to the owners of lands injured by the establishment of the road, and the trial in the probate court, were regulated by the act of 1853 (2 S. & G. 1289), as amended (S. & S. 671; 66 Ohio L..68; 68 Ohio.L. Ill, § 10; 69 Ohio L. 1S6), which, no doubt, in a proper case, extended the right to damages as well to a corporation as to a natural person. See Rev. Stats. § 4699 et seq.

The Lake Shore and Michigan Southern Railway Company is a corporation having a line of railway in Ashtabula and other counties of this state, and exercising its powers subject to the provisions of the present constitution and the laws relating to or affecting railways enacted in pursuance of the constitution.

Among the provisions of the constitution are the following : “No special privileges or immunities shall ever be granted that may not be altered, revoked or repealed by the general assembly.” Art. 1, § 2. “Corporations may be formed; under general laws, but all such laws may, from time to time, be altered or repealed. Art. 13, § 2.

The act of 1871 (71 Ohio L. 85), which remained in force until 1880, when it was re-enacted in substantially the same form (Rev. Stats. § 3324), provided as follows; “ That any railroad company, or other party having control or management of a railroad, the whole or a part of-which is now or shall be in this state, is hereby required, at their own expense, ... to make and maintain safe and sufficient crossings of good width, at every point where any public road, street, lane or highway may cross said railroad, that is or may be used by the public, with the necessary cattle-guards on each side of said crossings, to prevent cattle or other domestic animals from endangering themselves and the lives of passengers by getting upon such railroads; and every such railroad company or party shall be liable for all damages sustained in person or property in any manner by reason of the want or insufficiency of any such . . . crossing or cattle-guard, or any carelessness or neglect of said company, their agent or agents, in constructing .or keeping the same in repair.”

The provision that the company shall construct and maintain the cattle-guards at its own expense, is too plain for construction, and, looking to the whole act, manifestly applies to roads thereafter as well as to roads theretofore constructed; and with respect to companies organized, as this is, under our present constitution, the validity of such a provision is no longer subject to doubt or question. Railroad companies are clothed by the state with important powers and privileges. They employ locomotives, which pass along their roads with great force and rapidity, and this necessarily, to some extent, places the pei’sons and property of others in peril. Hence, the requirement that companies shall furnish and maintain such cattle-guards is not to be regarded in any just sense as an invasion of their property rights, but a burden justly imposed for the public convenience and welfare. Rairoad Co. v. Railroad Co., 30 Ohio St. 604; Pennsylvania Co. v. Wentz, 37 Ohio St. 333, 338; Bulkley v. Railroad Co., 27 Conn. 479; Pierce on Rail. (ed. of 1881) 456 et seg. Plaintiffs in error rely on Railway Co. v. Bloomington, 76 Ill. 447, as opposed to this view. See also Morris Canal, &c. v. The State, 24 N. J. L. 62. But it does not appear that the constitution of Illinois or New Jersey, existing when the questions arose, contained any such provisions as those above quoted.

Judgment affirmed.


author: Longworti-i, J.

text:
    McHugh v. The State.
    1. Sections 7267 to 7275, inclusive, of the Revised Statutes, are not repealed by the act of March 29,1881 (78 Ohio L. 95), in respect to impaneling juries in capital cases, or affected otherwise than in substituting the wheel, therein provided for, in place of the box from which the names of electors shall be drawn for jury service.
    2, A person summoned as a juror who states upon his voir dire that he has formed or expressed an opinion, touching the guilt or innocence of the accused, is prima facie incompetent, and such prima facie incompetency is not removed until it has been made to appear that such opinion was formed from reading mere newspaper statements, communications, comments or reports, or upon rumor or hearsay, and not upon conversations with witnesses of the transactions, or reading reports of their testimony, or hearing them testify, and that, notwithstanding such previously formed or expressed opinion, the juror is able to render an impartial verdict upon the law and the evidence. Frazier v..State, 23 O. S. 551, followed and appi'oved.
    Error to the Court of Common Pleas of Hamilton County.

      William BJ. ésB.C. Pugh and E. P. Dustin, for plaintiff in error:
    I. The court below erred in selecting the names of persons embraced in the venires issued in this cause for jurors, and in overruling the motion of the plaintiff in error, made at the time, of the names of persons for each of said venires, that the names should be drawn from the wheel in pursuance of the law in that behalf. Sections 7267 to 7275 Revised Statutes; Act of April 18, 1881 (78' Ohio Laws 181); Act of March 29, 1881 (78 Ohio Laws 95) § 5189 d.

      We demanded a jury drawn under the provisions of this last act and protested against any other.

      “ The act of 1866 (63 Ohio Laws, 22, section 2), relating to the repeal or amendment of statutes, was intended to preserve rights; but provisions in relation to juries relate to remedy, and juries must be selected according to the law in force at the timé the selection is made.” Warner v. Railroad Co., 31 Ohio St. 265.
    It seems that we have apparently two jury acts in force providing for the selection, impaneling and summoning of juries.
    If this court should hold that the jury that tried this defendant was not required to be drawn from the wheel, then the court must conclude that the law as contained in sections" 7267, 7268 7269 and 7275 as -amended, and section 5173, governed the impaneling of the jury, and the jury must have been drawn from the jury box. But the court below said that Hamilton county no longer had a jury box: how then is it possible to comply with the law of the state %

    Before section 5173 can be resorted to, the provisions of said sections 7267, 7268, 7269 and 7275 as amended must have been exhausted, and section 7275 as amended gave to either party the right to demand from the court, a special venire to fill the panel, and they must have been drawn from the jury box or wheel. The objection and demand of the defendant at the time of selecting the names by the judge, amounted to, and should be considered to be a demand for a special venire. In no event then, had the court the right to select the names of jurors for the trial of this cause. It was an arbitrary and unwarranted exercise of judicial power.
    II. The court erred in overruling the challenge for cause, of plaintiff in error, to the juror M. D. Osgood. Frazier v. State, 23 Ohio St. 551; Erwin v. State, 29 Ohio St. 186.

      George E. Nash, Attorney General, for the state.
   Longworti-i, J.

The plaintiff in error, William McHugh, was convicted in the court of common pleas of Hamilton county of murder in the first degree, and sentenced to suffer death. Numerous errors are assigned in the proceedings ; only two of which we think it advisable to consider.

I. It is said that the court erred in selecting the names of persons to serve as jurors in the special venires issued, and in refusing the motion of plaintiff in error that the names be drawn from the wheel as provided by the act of March 29, 1881 (78 Ohio L. 95.) In this we think there was no error. The method of impaneling juries in capital cases is specially provided for in chap. 6, title II. of the code by sections 7267 to 7275 inclusive, and differs essentially from that employed for obtaining juries in all other cases. These sections are not repealed and are not affected by the subsequent act of March 29, 1881, otherwise than in substituting the wheel for the box containing the names of electors from which the original panel is to be drawn. It was provided by section 7275 that, in case a full panel should not be obtained, or the whole array should be set aside, the vacancies should be filled from the bystanders. To this a proviso was added by the amendment of April 18, 1881 (78 Ohio L. 181), authorizing the issuance of a special venire upon the demand of either party as provided in section 5173. By the last-quoted section the court is required to select the talesman, as was done in the case at bar. Hence the court did not err in overruling the motion of the prisoner.

II. The second error alleged is the action of the court below in overruling the challenge for cause of the prisoner’s counsel to M. D. Osgood, who was permitted to serve as a juror upon the trial. This juror testified upon his voir dire that he had both formed and expressed an opinion touching the guilt of the prisoner, and that this opinion was formed from reading the accounts of the case in the newspapers and the published account of the examination before the coroner. It was decided by this court in Frazier v. State, 23 Ohio St. 551, that no juror is competent who has formed or expressed an opinion from having read what purported to be a report of thp testimony of witnesses of the transaction. This is decisive of the question before us; for, although it is argued by the state’s attorney that it nowhere appears that any testimony of witnesses was offered at tbe examination before tbe coroner, we are clearly of opinion that to establish tbe competency of tbe juror, it should be shown affirmatively that no such testimony was offered or appeared in tbe printed report. Where a proposed juror states that he has formed or expressed such an opinion he is primia facie incompetent, and it is error in the court to permit him to serve, unless the presumption of incompetency be removed by showing that his opinion was formed from reading mere newspaper statements, communications, comments or reports," or upon rumor or hearsay, and not upon conversations with witnesses of the transactions, or reading reports of their testimony, or hearing them testify. The case at bar is, in this respect, indistinguishable from that of Frazier v. State, above cited, and for this reason a new trial should have been granted.

Judgment reversed.


author:
MoIlvaine, J.
      White, J.,

text:
    Coan v. Flagg.
    I. A survey, embracing sixteen hundred and eighty-two acres, on an entry of lands in the Virginia Military District, made on a warrant for five hundred acres, is. by reason of such excess, fraudulent as against the government of the United States, and vests in the owner of the warrant no estate or interest in the land, which the government of the United States, on principles of equity, is bound to protect by issuing a patent for the whole or any part of the survey.
    3. Whether the act of Congress of February 18, 1871, granting to the state of Ohio, lands in the Virginia Military District “remaining unsurveyed,” passed title to lands covered by a previous survey voidable on account of excess in the quantity of land embraced, qucere ? But, if it did not, the title to such land sold by the Ohio Agricultural and Mechanical College, grantee of the state of Ohio, to a purchaser for a valuable consideration, was ratified and confirmed to such purchaser, by the 4th section of the act of May 37, 1880.
    Error to the District Court of Scioto County.
    The original action was brought by William J. Flagg, defendant in error, against John A. Coan, plaintiff in error, to quiet his title to certain real estate within the Virginia military district, and known as survey 15,882, containing 1,682 acres, and also known as lot No. 99 in the allotment of lands granted by the United States to the state of Ohio by act of Congress passed April 18, 1871, and afterwards by the state of Ohio to the Ohio Agricultural and Mechanical College.
    The plaintiff Elagg, in his petition, claimed to be the owner of the legal title to, and to be in possession of the whole of said tract.
    The defendant, Ooan, by his answer, disclaimed title or possession to that part of survey 15,882 which lies south of a line drawn from the northwesterly corner of survey 11,301 to the easterly corner of survey 15,771, and, denying the plaintiff’s title and possession to that portion of survey 15,882 north of the line described, asserts title and possession in himself.
    The original suit was commenced .in the court of common pleas of Scioto county, October 19, 1875. From the decree of the common pleas an appeal was taken to the district court, wherein a final decree was rendered in favor of the plaintiff, Flagg, at the December term, 1877. On a motion for a new trial, by defendant, Coan, being overruled, a bill of exceptions containing all the testimony was made part of the record.

      M. W. Evans, John G. Marshall, Dwncan Zvomgston, and James M. Dawson, for plaintiff in error :
    The vital question of the whole case is, whether the entry and survey made in the name of the heirs of Thomas Gordon was valid. After Congress had accepted the cession of these lands from Virginia, it passed various resolutions and acts concerning the same. The act of August 10, 1790,2 IT. S. Laws, 179, provided for locations, entries, surveys and patents on these lands. The act of March 23, 1801, 3 U. S. Laws, 592, required locations to be completed within three years, and parties to return their surveys'within five years.* Another act was passed March 2, 1807, 1 U. S. Laws, 92. This extended the time for making locations to three years from March 23, 1807, and five years to return surveys. In this act, on account of great litigation which, had arisen between conflicting entries and surveys, what has since been known as the proviso of 1807 was incorporated. This proviso reads as follows: “ Provided, That no locations as aforesaid, within the above mentioned tract, shall, after the passing of this act, be made on -tracts of land for which patents had previously been issued, or which had previously been surveyed, and any patent which may, nevertheless, be obtained for land located contrary to the provisions of this section, shall be considered as null and void.” The time for making locations and returning surveys has been extended by Congress from time to time, as follows: March 16, 1810, 5 and 7 years, 4 U. S. Laws, p. 281. November 3, 1814, 3 and 5 years, 4 U. S. Laws, p. 714. February 22, 1815, 2 years, 4 ü. S. Laws, p. 805. April, 11, 1818, 3 years, 1 sess. 15 Cong. p. 37. February 9, 1821, 2 years, 2 sess. 16 Cong. p. 10. March 1, 1823, 2 and 4 years, 2 sess. 17 Cong, p. 73. May 20, 1826, 3 and 5 years, vol. 4, G. S. 189. April 23, 1830, 2 years, vol. 4 G. S. 396. March 31, 1832, 7 years, vol. 4 G. S. 500. July 7, 1838, 2 years, vol. 5 G. S., 262. August 19, 1841, 3 years, vol. 5 G. S. 449. July 29, 1846, 2 years, vol. 9 G. S. p. 41. July 5, 1848, 2 years, vol. 9 G.'S. 245. February 20, 1850, 2 years, vol. 9 G. S. 421. May 27, 1880, 3 years, 2 sess. 46 Cong. p. 143. Each of these statutes, except the last, which is only one of construction, substantially reenacted the proviso of 1807 before referred to.
    The only objection to the validity of the survey is on ac-court of the alleged surplus therein. The commissioner of the general land office, the common pleas and district courts of Scioto county, all decided this survey invalid and void on account of the surplus, in face of the laws of Virginia and of Congress, and the decisions of the highest courts of Virginia, Kentucky and Ohio, and the supreme court of the United States. The act of Virginia of May, 1779, 10 Henning’s Statutes, 51, and before referred to, provides that surplus should vitiate no grant or location, and provides how the surplus might be ascertained and disposed of, giving the owner of the survey the right to perfect his title thereto. This law of Virginia is a rule of property affecting this land as fully in force to-day as any statute of the state, or of the United States, affect-ting the same. "When the United States took title to these lands from Virginia on March 1, 1784, it was only the naked legal title in trust for the officers and soldiers of Virginia upon Continental establishment. The right of these Virginia soldiers to have their bounties satisfied out of these lands could not be defeated by any clerk sitting in an office in Washington and writing letters in the name of the commissioner of the general land office.
    But Virginia alone has not legislated on this question of surplus. Congress has also legislated on the question of surplus, a fact which was overlooked by the commissioner of the genera] land office and the courts below. In the act of May 20, 1826, 4 U. S. Laws, 189, section 2 reads as follows: “ That no patent shall be issued by virtue of the preceding sections, for a greater quantity of land than the rank or term of service of the officer or soldier to whom, or to whose heirs or assigns, such warrant has been granted, would have entitled him to under the aforesaid laws of Virginia; and whenever it appears to the secretary of war that the survey made by virtue of any of the aforesaid warrants is for a greater quantity of land than the soldier is entitled to for his services, the secretary of war shall certify on each survey the amount of such surplus quantity, and the officer or soldier, his heirs or assigns, shall have leave to withdraw his survey from the office of the secretary of war and resurvey his location, excluding such surplus quantity, in one body, from any part of his resurvey, and a patent shall issue upon such resurvey, as in other cases.”
    These sections clearly establish that the validity of a survey is not affected on account of surplusage, and only gives the commissioner of the general land office the right to refuse to issue a patent until a resurvey, including only the correct quantity authorized by the warrant, is made. Under the proviso of 1807 a survey, once made, no matter how informal, appropriated the land located and withdrew it from subsequent location. So far as the defendant in error, Flagg, is concerned, since the cession of February 18,1871, he cannot be regarded in any better light than a subsequent locator. We refer the court to the following cases in which the proviso of 1807 has been construed : McArthur v. Dunn, 7 How. 262; Jackson v. Clark, 1 Pet. 628; Galloway v. Finley, 12 Pet. 264; Parker v. Wallace, 3 Ohio, 490; Stubblefield v. Baggs, 2 Ohio St. 217; Thomas v. White, 2 Ohio St. 540; Price v. Johnston, 1 Ohio St. 394. In this case, in quoting Justice McLean’s opinion in Lindsay v. Miller, 6 Pet. 666, there is an error of the printer on page 394, which makes Justice McLean say the contrary to what he actually decided. The quotation reads in Price v. Johnston, “ There can be no doubt that Congress did [not] intend to protect surveys which had been irregularly made, etc.” The word “not,” in brackets, is not in Justice McLean’s opinion. McArthur v. Gallaher, 8 Ohio, 515.
    The word “ unsold,” as used in the act of February 18, 1871, was utterly inappropriate. Not a foot of ground in this district was ever sold in the first instance, but it was all given away in military bounties. Had the term “ unappropriated ” been used it would have been strictly correct. Doubtless the framer of the bill had in his mind other land districts in which Congress sold its lands. We think the court in passing upon this statute must necessarily construe the word “unsold” as though it read “ unappropriated.” Let it be given such construction, and under the construction given by the courts, to the proviso of the act of March 2, 1807, all surveyed land, regardless as to the validity of the entry or survey, has been withdrawn from subsequent location, and as to all after claimants becomes the same as surveyed and sold land, and is not within the terms of the act’of cession of February 18, 1871. In construing the words “ unsurveyed ” and “ unsold,” the court will take into consideration the intention of Congress, the effect the act will have upon .titles and the object of the grant. Did it intend to convey to the state the surplus included in unpatented surveys, as well as the unsurveyed and unsold lands ? The reasons stated for the passage of the act, as shown by the remarks made in the House and Senate upon the presentation of the bill, gathered from the Congressional Globe, were that the warrants for services in the Virginia Line upon Continental establishment, had all been located and satisfied; that the tracts remaining unappropriated were composed of wild and barren hill lands, unfit for cultivation, and valuable only for the timber remaining thereon,' and which was being rapidly destroyed by trespassers. The United States was unwilling to undertake to protect the value yet remaining in the unappropriated lands, and in order that they might be valuable to some one, they were given to the state. Consider the fact that by the passage of this act, Congress only intended to get rid of lands not required for the purposes of > the trust for which it held them; to place them where they might become productive and tax-paying; that neither-the state of Ohio or its college ever paid any consideration for the lands and had no equitable rights whatever in them ; that the owners of these surveys had paid valuable considerations therefor, either in services, blood, or money ; and can it then "be said Congress intended to give the state, or its assignee, a right which the United States never claimed, and which it expressly protected in the acts of 1826 and-1838, and which would, if carried to its legitimate result, unsettle many titles?
    It was claimed in the court below that the survey was void because it operated as a fraud upon the United States. In the court of common pleas plaintiff in error alleged in his answer that defendant in error,;in procuring the title from the college, had practiced stupendous frauds upon the. ■ latter, and was ready with evidence and anxious to substantiate it, but the court said to him, it is none of your concern as to a fraud practiced by Elagg upon the college; you are not the party to complain; and sustained a demurrer to the fifth answer. But here no fraud was practiced on the United States. It was advised of the surplus, and the commissioner of patents refused a patent until the matter of the surplus was disposed of. Had the commissioner disposed of this surplus under the acts of May 20, 1836, July 7, 1838, or the Virginia act of itay, 1779, § 4, there would have been no difficulty. The surplus is not a fraud upon the college, for Congress reserved the surveyed and sold lands, and it has paid no consideration for tlie grant, valuable or otherwise, while the owner of this survey has.
    A surplus does not vitiate a survey. Taylor v. Brown, 5 Cranch, 249; Holmes v. Trout, 7 Peters, 208; Laum v. Latham, Wright, 309; Gill v. Towler, 3 Ohio, 209. If, for the sake of argument, it be admitted that the cession of February, 1871, conveyed this land to the state of Ohio, and with the decision of the commissioner was equivalent to a patent, which we think the court cannot find in any event, yet the equities of the owner of the, survey can be asserted and protected. Marquez v. Frisbie, 11 Otto, 473; Johnson v. Tousley, 13 Wall. 73; Bird v. Ward, 1 Mo. 398; Shepley v. Cowan, 91 U. S. 330; Danforth v. Monical, 84 Ill. 456.

      Moore da Newman and W. A. Hutchins, for defendant in error:
    The term “ unsold lands ” -would seem to imply that some had been sold, and yet, strictly speaking, none of the lands embraced in the Yirginia military district, up to that time, had been “ sold.” The term was used, we suppose, to exclude from the grant all of the lands the legal title to which, under the provisions of the law, had passed out of the government, and had become vested in another,, as by patent issued. The courts had held that while provision was made for the appropriation of the lands by entry, survey and patent, and that this was the usual way for disposing of lands, still, if there had been no entry or survey, or if the entry and survey, or either of them, were defective, or were void, but the government had issued its patent granting the land, the title would pass, and the land could be treated in the broad sense as “ sold ” land. Hoofnagle v. Anderson, 7 Wheat. 27; Stubblefield v. Boggs, 2 Ohio St. 216; Thomas v. White, 2 Ohio St. 540. •The term “ sold,” as contra-distinguished from “ unsold ” lands, covered by the cession to the state, we submit, had reference to and embraced the lands for which the government had issued its patent, and thereby parted entirely with its title. In 1871, when the act of cession was passed, most of the lands in the military district, at least the valuable portion of the same, had been fully appropriated to satisfy the warrants allowed for bounties, and patents had been issued by the government therefor ; so that nothing remained in it in respect thereto that could be the subject of the grant. And of course that class of lands would necessarily be excluded by the terms of the cession.
    At the same time there was another class of lands in the district, the legal title to which still remained in the government; but with a view to their application to the satisfaction of warrants granted for bounties, everything had been done that would entitle the holders of the warrants to their patents, and nothing was left but to issue the same therefor; still, even in the broad sense, they could not be treated as “ sold lands.” And while this class ought not to have been the subject of cession to the state, strictly, they were neither sold nor unsold lands, and, therefore, their exemption in the act of cession under the description of “ unsold lands,” was indefinite, and might lead to confusion. Hence, we suppose, the other term in the act, “ unsurveyed lands,” was used so as to embrace, in connection with the class first named, “ unsold lands,” all of the lands in the district intended to be ceded to the state.
    The law authorizing the holders of warrants to locate the same, ceased to operate January 1, 1852, and since that time there has been no law which would authorize an “ entry,” and the most that could be done, if an entry had been made prior thereto, was to make and return their surveys. And on March 3, 1857, even this right was terminated.
    Prior to January, 1852, tbe district was open to locations and entries to satisfy military warrants, and by acts of Congress, well-known rules were prescribed to regulate the conduct of the holders of warrants in making their entries and surveys, so as to avoid conflict or interference in respect thereto. The most notable of these was the proviso attached to the act of Congress passed March 2, 1807, and continued in force as long as there was any law authorizing entries to be made. The proviso itself was suggested, doubtless, by the constant conflict that was occurring between the holders of warrants in locating the same, and in making their entries and surveys. It was to operate upon them, and was to obviate, so far as possible, the conflict so constantly occurring in respect to the entries and surveys then being made.
    In the language of Chief Justice Marshall, in Jackson v. Clark, 1 Pet. 638, “It was most truly an enactment of repose.” It was intended as a prohibition upon subsequent locators from any interference, or even inquiry in respect to lands already entered and surveyed. As to the subsequent locator, the land was withheld from location. In regulating the satisfaction of warrants by the appropriation of lands set apart for that purpose, Congress had power “ to withhold from location any portion of the military land;” and having by the proviso referred to withheld from location all lands previously patented or surveyed, it would follow, necessarily, that any attempt to enter lands so expressly withheld from location, would be null and void. It is enough to know that such subsequent locations by the holders of warrants were a nullity, because Congress had so declared, and it had the power so to declare. Stubblefield v. Boggs, 2 Ohio St. 219; Jackson v. Clark, 1 Pet. 638, 639.
    It is apparent, therefore, that the proviso of 1807 was intended as a rule for the control of the holders of warrants in locating and appropriating lands in the military district in satisfaction of the same, and nothing else. It is a part and parcel of the law authorizing such locations, and prescribing how and when it may be done. And its only purpose was to withdraw certain lands from location, and prohibit the holder of a warrant from subsequently entering or surveying the same. Its entire scope was to operate upon and restrain the parties holding .warrants in locating the same. It in no way, by its terms, affects the title of the government to the land, or its right to dispose of it, as it may see proper, or the right of any one acquired under the government to the land in any other way than by an entry and survey in satisfaction of a military warrant.
    The Conclusion, therefore, is irresistible that when, as in 1852, the right to enter and appropriate lands to satisfy military warrants ceased, or, at all events, in March, 1857,. when the right to make and return surveys of lands previously entered terminated, the proviso of March, 1807, so far as it could operate upon subsequent transactions, was at an end. It had served its purpose, and had become functus oficio. In 1852 Congress provided for the satisfaction of all the military lands, with land scrip, and thereby withdrew the military lands from appropriation for that purpose, and assumed control of it for some other purpose. And in so doing, all the rules prescribed for its appropriation, while subject to entry, survey and patent, to satisfy military warrants, ceased to operate, and it was for Congi’ess to prescribe the mode by which the remaining lands could be appropriated. Whatever conflict there was, or could be among those who had attempted to locate and appropriate the lands to satisfy military warrants, while there was a law authorizing it, would have to be controlled "by the acts of Congress in existence when such attempt was made, including, we may concede, the proviso of March, 1807; but as to the government, or those claiming under it by virtue of some appropriation, other than by entry and survey to satisfy a military warrant, such acts of Congress would in no way control.
    II. It is apparent that in 1871, when the act of cession to the state of Ohio was passed, the purpose of the United States was, by that act, to dispose of and transfer to the state all of the lands in the district not before that time actually appropriated, as provided by law, to satisfy military warrants. As long ago as 1852 the authority for entering these lands ceased to operate, and after 1857 there was no law by which entries made prior to 1852 could be surveyed and patented. In 1852 provision was made for satisfying with land scrip the unsatisfied warrants, and in 1857 the land office was closed. From that.time until 1871 there was no provision of law by which a single acre of these lands could be obtained from the government. They had been withdrawn from location to satisfy military bounties, and there was no law authorizing their sale. They were wholly useless to the .United States, and there was every reason why some definite disposition should be made of them, so that the government should be relieved of all burden in respect to every pai’cel in the district remaining under its control. And this, we submit, is just what was done by the act of cession. There was no reason why any portion of the land which really remained under the control, or was undisposed of by the government, should be excepted from the grant. And none was excepted. The grant is sweeping in its terms, and embraced evei’y acre not already appropriated as against the government under the provisions of the law authorizing such appropriation. Whatever title or estate remained in the United States was granted to the state. The only limitation, therefore, there is upon the title so acquired by the state, is the limitation that was upon the title of the United States at the time of the act of cession. -
    III. The term “surveyed'land,” in the Virginia military district, may be said to have had two significations, depending upon the parties to be affected. A “ survey,” as it was to be understood by one who would seek, by virtue of a military warrant, to enter and survey the land covered by it, was “ a bona fide attempt to locate lands under a warrant by entry and survey.” Because, “the effect was to withdraw such lands from subsequent location upon another warrant, whether such entry and survey was valid or void.” Price v. Johnston, 1 Ohio St. 397.
    But as to the government, by the term “survey” was meant not simply a bona fide attempt to locate lands under a warrant by entry and survey, but a legal, valid swrvey, such as would appropriate the land as to and against the United States. If void, no title or interest, either legal or equitable, would pass out of the government, but the whole would remain in it, as it did before the attempt was made. “ It has the effect, and this only, to exclude every person except the legal holder of the warrant from encroaching upon the land thus attempted to be appropriated by subsequent locations.” See also Jackson v. Clarke, 1 Pet. 628.
    The counterpart of the term “ unsurveyed lands,” used in the act of cessions, to wit, “ surveyed lands,” must be understood either in the sense given to it in respect to the holder of a warrant who would seek, by a subsequent entry and survey, to appropriate the land covered by a prior srnwey, or in the sense that attaches to it where the rights of the government are to be affected by the act done. Was there then a valid, legal, subsisting entry and survey as to and against the government, the effect of which was to give to the Gordon heirs a perfect, equitable title to the land embraced in their survey?
    First. The government itself has answered this in the negative. It was the right of the government to examine into the matter and determine whether or not the entry and survey were made in accordance with the law; and it has done so, and we have the result in the record which it has kept.
    Second. But, even if the commissioner had no power to act, or if his action was informal and irregular, or if it is true that his decision is not final, the same conclusion must be reached by any court having jurisdiction to determine the question. The legal title to the property involved remained in the government, and the most that can be claimed is, that it held it subject to the equities that existed in favor of the Gordon heirs. These were equities, if any existed, against the government, and in favor of the parties who were attempting by an entry and survey to appropriate a portion. of the lands • belonging to it.
    The wan’ant under which it was sought to make the appropriation called for five hundred acres of land, and no more. To that extent it was authority for the appropriation of the lands in the Virginia military district, and beyond that it conferred upon the holder no authority whatever. Without such a warrant no entry or survey could be made at all; and with such a warrant, the authority to make the entry and survey was limited to the number of acres called for by the warrant. An entry and survey of more land than was called for by the warrant was just as unauthorized as to the excess as an entry and survey without any warrant whatever.
    It might be that the owner of a warrant, acting in entire good faith, could embrace a small quantity of surplus land in. his survey, and no doubt it has been frequently done; but • when a warrant calling for five hund2’ed acres is used as the ■ foundation of two surveys — one for four hundred acres, and the other for one hundred, aud by actual measurement the; former is made to cover one thousand six hundred and eighty-two, and the latter five hundred and seventeen forty-six-one hundredths acres, the presumption of good faith or innocent mistake is overcome, and the very reverse must be the presumption. In fact, the attempted appropriation of the amount of land embraced in the two surveys, to satisfy a military warrant calling for five hundred acres, and no more, upon its very face, is a most arrant fraud upon the government; a fraud so palpable and glaring, that out of such a transaction, in the language of Judge Reed, “no equity can ever blossom.” The government having ignored the survey, and refused absolutely to cany it into grant, and there being no equity in the claim,' and the survey itself being so strongly tainted with fraud, the conclusion is irresistible that, at the time of the act of cession to Ohio, the land in question was in no way appropriated, either legally or equitably, to satisfy the warrant of the Gordon heirs; and it was therefore the subject of grant by the government, and would pass by the cession to the state.
   MoIlvaine, J.

Each party traces his title to the cession of territory northwest of the Ohio river by the state of Virginia to the United States in the year 1784 (1 U. S. Laws, 472), whereby lands situate in this state, between Scioto and Little Miami rivers, were devoted to the satisfaction of warrants, as ■bounties, issued by the state of Virginia to troops, for services in the revolutionary war, on the continental establishment.

Flagg, plaintiff below, claims title under the act of congress of April 18, 1871 (16 Stat. at L. 416), which reads as follows: “ Be it enacted by the‘senate and house of representatives of .the United States in congress assembled, that the lands remaining unsurveyed and unsold in the Virginia military district in tthe state of Ohio, be and the same are hereby ceded to the state of Ohio upon the conditions following, to wit: Any person who, at th® time of the passage of this act, is a bona fide settler on any portion of said lands, may hold not exceeding one. hundred and sixty acres so by him occupied, by his preempting the same in such manner as the legislature of the state of Ohio may direct.”

To complete his chain of title, the plaintiff below claims further under a grant from the state of Ohio to the Ohio Agricultural and Mechanical College, and from the college to himself.

Coan, the defendant below, claims title under an exchange military warrant, No. 494, issued by the state of Yirginia on the 16th day of June, 1840, to the children and heirs of Francis Gordon, a child and heir of John Gordon, the only heir of Thomas Gordon, who was a lieutenant of cavalry in the Continental line of Yirginia troops in the revolutionary war, for five hundred acres of land, to be laid off in one or more surveys : An entry, No. 15,882, purporting to cover five hundred acres of land under the foregoing warrant No. 494, made on December 18, 1849, by the said heirs of Francis Gordon and one David F. Heaton, an assignee of part of said warrant. A survey under said entry, No. 15,882, purporting to contain four hundred acres — three hundred and seventy-five acres for the heirs of Francis Gordon and twenty-five acres for said Heaton — made by said D. F. Heaton, a deputy surveyor of the district, on April 16, 1851, giving the metes'and bounds of the land surveyed, which was duly recorded on December 23, 1851. And mesne conveyances from the heirs of said Francis Gordon and said Heaton to himself.

It appears, however, that this survey, No. 15,882, embraces, in fact, one thousand six hundred and eighty-two acres.

No patent has ever been issued on this entry and survey for the reason, among others, that the quantity of land embraced is grossly in excess of the quantity named in the warrant,. No. 494.

Upon these facts, the main questions in the case arise.

1st. Did the entry and survey invest the owners of the warrant or their assignee, with an equitable interest in the lands surveyed? If, as against the United States, an equitable estate had passed to the defendant below, it may be admitted that the subsequent grant by the United States to the state of Ohio did not divest such estate.

Upon general principles, it cannot bé doubted, that a fraud so palpable, as is shown to have been attempted against the laws of the United States by this eútry and survey, would have avoided the survey entirely. The excess is so great, that no reasonable supposition can arise, that it occurred through an honest mistake.

True, the United States, against whom it was intended, might waive the fraud and relieve the party from its consequences, in whole or in part; and it is claimed that such was the effect of the act of Congress of July 7, 1838 (5 Stat. at L. 262), the second section of which provides: That “ no patent shall be issued ly virtue of the preceding section, for a greater quantity of land than the rank or term of service of the officer or soldier to whom, or to whose heirs or assigns, such warrant has been granted, would have entitled him to under the laws of Virginia and of the United States regulating the issuing of such warrants ; and whenever it appears to the secretary of war that the survey made by any of the aforesaid warrants is for a greater quantity of land than the officer or soldier is entitled to for his services, the secretary of war shall certify on each survey the amount of such surplus quantity, and the officer or soldier, his heirs or assigns, shall have leave to withdraw his survey from the office of the secretary of war, and resurvey his location, excluding such surplus quantity, in one body, from any part of his resurvey, and a patent shall issue upon such resurvey as in other cases,” &e. Clearly, this section forbids the issuing of a patent for a greater quantity of land than the officer or soldier was entitled to under the laws regulating the subject; and by fair construction it would seem that the relief provided was only in cases where the quantity named in the warrant was in excess of the quantity to which the warrantee was entitled, and not to cases where the survey was in excess of the warrant. But however that may be, the operation of the section is expressly limited to cases arising under the preceding section of the act, and the operation of that section expired by its own limitation on the 10th of August, 1840. If it be claimed that the operation of section 2 of this act was extended by reason of the extension and revival of the first section by the act of August 19, 1811 (5 U. S. L. 119), it is, at most, sufficient for this case to say, that the “ preceding section ” thus revived and continued in force for a limited time, contained the sole authority for making and returning entries and surveys, under these Virginia warrants, and since March 3, 1857, there has been no authority for making or returning surveys under any circumstances whatever. So that, at all events, the right to relief against excessive surveys, granted by the second section of' the act of 1838, whatever it may have been, has not existed since 1857, even if it be conceded that it was continued at all after 1810. See statute, March 3, 1855 (10 Stat. at L. 701).

Again, it is claimed that congress has recognized the validity of surveys within the district, notwithstanding the quantity embraced in the survey was excessive, by thq proviso in the act of March 23, 1807 (1 U. S. L. 92), which reads as follows: “Provided, that no locations as aforesaid, within the above-mentioned t'rict, shall, after the passage of this act, be made on tracts of land for which patents had previously issued, or which had been previously surveyed; and any patent which may, nevertheless, be obtained for land located contrary to the provisions of this section, shall be considered as null and void.”

It has undoubtedly been settled by repeated decisions, that under this proviso, that excess in the quantity of land embraced in a survey, does not vitiate the survey so as to authorize a subsequent location or entry under another warrant; but it has not been settled, nor was it the intention of Congress, by this proviso, to require a patent to be issued on an excessive survey. As between locators, lands actually surveyed, whether the survey was fraudulent or not, were withdrawn from subsequent entry and survey until the previous survey should be withdrawn or set aside. This legislation was in the interest of peace, as bettveen locators of warrants, and was a wise provision. But to hold that Congress intended, as against the government of the United States, to declare that excessive surveys, whether by mistake or design, should be binding, so as to establish an equitable.estate in the holder of the warrant, and entitle Mm to a patent for the whole or any part of the survey, would do violence to the language of the jproviso, and would show a disregard for the faithful execution of the trust imposed by the cession of these lands by Virginia to the United States, amounting to wickedness. As far ás we are advised, we know of no rule or practice, based either upon congressional enactment or principles of justice, by which the United States government could be justified in recognizing in the defendant below, an equitable estate in the whole or any part of the lands in dispute, arising upon an entry and survey so palpably fraudulent as those upon which he relies; and, therefore, it was within the ¡Dower of congress, on April 18, 1871, to grant to the state of Ohio the lands in dispute, free from any claim of right or interest therein of the defendant below.

It is claimed, however, that these lands were not conveyed or intended to be conveyed, by the act of April 18, 1871. The following'is the description of the lands intended tobe conveyed by that act, to wit: “ The lands' remaining unsurveyed and unsold in the Virginia military district in the state of Ohio.”

On the part of the plaintiff in error, it is contended that the word “ unsurveyed ” is used in this statute as the counterpart of the word “ surveyed,” as used in the proviso in the act of 1807, which has been construed to mean “surveyed in fact,” whether the survey was valid or voidable in point of law. On the other side, it is contended, that the intention of congress was to grant to the state all the lands remaining in the district of which the United States had the power of disposition, so that the word “unsurveyed” included land covered by an invalid or void survey. This construction is supported strongly by the facts that', subsequent to the year 1852, no entries under warrants for military services in Virginia were authorized, and subsequent to 1857 the right to make surveys on account of such warrants ceased — provision having been made by congress for the satisfaction of outstanding warrants by other means,' and that prior to the act of 1871 congress had provided no other means for the dispositions of lands remaining subject to power of disposition.

But inasmuch as congress, by the act of May 27, 1880 (2d session, 46th Congress, statutes, page 142), has declared the true intent and meaning of the act of 1871 to be, that the word “ unsurveyed ” excluded lands which had been included “ in any survey ” whether valid or invalid, and as we do not deem it necessary to the decision of this case to declare the effect of the act of 1871, we leave it undecided. The decision of this question becomes unnecessary from the fact, that congress, in section 4 of the act of 1880, provides: “ This act shall not in any way affect or interfere with the title to any land sold for a valuable consideration by the Ohio Agricultural and Mechanical College, grantee, under the act of February 18, 1871.”

This section we construe to be a ratification on the part of congress of the title of Flagg, plaintiff below, who was a purchaser from the college for a valuable consideration. True, the language of the section was not happily selected to express such ratification, but we think, such was the intention of the section. Construed literally, the section can have no effect whatever. Of course, the declaratory act of 1880 could not “ affect or interfere ” with any right acquired under the act of 1871. Congress knew that the Ohio Agricultural and Mechanical College had assumed to convey title to portions of these lands for a valuable consideration, under the belief and claim that it had a right to do so under the act of 1871. The title which the act was not to “ affect or interfere with ” was not one which in the view of congress was valid and indefeasible, but one which, under the construction placed upon the act of 1871, by the act of 1880, the college had no power to convey for want of title in itself. A title, which the college intended to sell for a valuable consideration, but by reason of the construction claimed for the act of 1871, it could not convey, was the subject of this section, and the purpose undoubtedly was. to confirm the sale so made, and give it effect according to the intention of the parties.

The title of Flagg thus ratified took effect as of the date of the conveyance, no other rights having intervened.

Several other questions have been raised and considered, which need not be reported.

White, J.,

did nob concur, in the second proposition, being of opinion that the right of such purchaser depends on the construction of the act of 1871, unaffected by the act of 1880.

Longworth, J., did not sit in the case.

Judgment affirmed.