author: Spear, J.

text:
    Callen v. The Columbus Edison Electric Light Company.

      Title of municipal corporation to streets — Dedicated to public use — Section 2601, Rev. Stat. — Property interest in street of abutting owner — Placing of poles on curb by private light-i ing company abuse of property rights, when — Section 19 of bill of rights — Lot owner right to injunction, when.

    1. The title which a municipal corporation acquires, under Sec. 2601, Rev. Stat., to streets dedicated by a proprietor who subdivides lots for sale, is held for the use of the public for street purposes.
    2. An owner of a lot abutting on such street has a property interest in the street in front of his lot which cannot be taken against his will'except upon the terms provided by the constitution, viz: that a compensation shall first be made in money or by a deposit of money. Crawford v. Delaware, 7 Ohio.St., 459; Railway Co. v. Cumminsville, 14 Ohio St., 523, and Railway Co. v. Lawrence, 38 Ohio St., 41, approved and followed.
    3. The placing by a private lighting company of poles at the curb in a street, and the stringing thereon of electric light cable lines and wires for the purpose of furnishing light and energy to private takers, is a diversion of the street from the purposes to which it was dedicated, and is a taking Of the property of the abutting owner within the meaning of section 19 of the bill of rights. And such placing of poles, lines and wires is none the less an unauthorized taking even though it be consented to by the city authorities.

      4. And where it appears that the acts of the lighting company in so placing its poles, lines and wires were done without the knowledge or consent of the lot owner, and that their maintenance will work injury to his property, appreciable in character and amount, such owner has a right to an injunction against such maintenance and an order for removal.
    (Decided April 22, 1902.)
    Error to the Circuit Court of Franklin county.
    The plaintiff’s case was tried in the court of common pleas of Franklin and a judgment rendered in her favor. An appeal was taken by the defendant to the circuit court, where, on trial, judgment was given for defendant, and plaintiff’s petition dismissed. She brings error to that judgment.
    From the pleadings, the evidence contained in the bill of exceptions, and an agreed statement, the following pertinent facts appear, viz.:
    Plaintiff is the owner of lot number nine in Parsons’ addition to the city of Columbus, which is situate on the southwest corner of Bryden road and Irvine street, well adapted to residence purposes, and valued at from $3,500 to $4,000. It is a vacant lot, fronting forty-three and one-half feet on Bryden road and running south on Irvine street one hundred and sixty-one feet to an alley. Bryden road is paved with an asphalt pavement, and a sidewalk has been constructed in front of the lot on that street. Irvine street has been graded, bouldered and curbed. The curb line on Bryden road is fifteen feet from plaintiff’s north lot line and on Irvine street six feet. The proportionate part of the cost of the improvement on both streets has been assessed on plaintiff’s lot. All the acts of defendant and of the city.of Columbus hereinafter referred to were done without the knowledge or consent of plaintiff.
    A short time prior to the beginning of the suit the city of Columbus had located and maintained a wooden pole ten inches in diameter and twenty-two feet high at the intersection of the curb of Bryden road and Irvine street at the northeast corner of plaintiff’s lot. On the pole was a fire alarm telegraph box, and leading from the top thereof were two wires-extending south over the curb along the Avest side of Irvine street, and attached to a pole in the alley south of plaintiff’s lot. The box might have been placed on a neat post four feet high, as is done in other parts of the city, or on a pole in the alley at the southeast corner of the lot.
    ■ The defendant is a private Ohio corporation, chartered for the purpose of selling and distributing electric energy for the purposes of light and power. On the-18th day of July, 1899, the defendant removed the wooden pole which had been erected by the city and put in its place a pole larger and higher. And on the 22d day- of July, 1899, the defendant removed this pole and substituted, near the northeast corner of plaintiff’s lot, at the curb, an iron pole eight inches in diameter and forty feet high, on Avhich it strung electric light cable wires diagonally across Bryden road in front of plaintiff’s lot to another pole at the intersection of Bryden road and Irvine street, north of Bryden road. On the same day the defendant erected, inside of the Avest curb on Irvine street, about eighty feet from its intersection with Bryden road, a wooden pole eighteen inches in diameter and fifty feet high, and connected the top of this pole with the top of the iron pole by two electric cable wires. These poles and wires were placed in the night season, after midnight. In the alley a telephone company has maintained a pole for stretching telephone wires thereon, with which company defendant has a contract for its use for accommodating their wires. It is the intention of the defendant to string along the poles nine electric light cable wires, three about six-eighths of an inch in diameter, three about one-half an inch in diameter, and three about one-fourth, and all about forty feet above the surface of the ground.
    By contract with the defendant the city of Columbus has placed its fire alarm box on the said iron pole and has strung its wires in the same manner that they were before the wooden pole was removed.
    Defendant has maintained an electric light station at the corner of Cay and Third streets, Columbus, since the year 1887. It has erected in the streets, alleys and highways of the city ten miles of poles.
    The defendant has had, from time to time, contracts with the city for lighting market houses, engine houses, the city hall, and some of the streets in the interior of the city, but it is not claimed that any such contract existed as to the neighborhood of Bryden road and Irvine street, nor that any such service was rendered.
    Defendant never asked permission to erect the poles, or any of them; never paid or offered to pay plaintiff any compensation or damages, and never acquired a right to erect the poles by appropriation proceeding’s. Evidence was given at the trial by plaintiff tending to prove that plaintiff’s property would be rendered less valuable, if the poles and wires were to be permanently maintained, by an amount from $800 to $1,200.

      Plaintiff’s action was commenced July 22,1899, immediately upon learning of the acts complained of. The relief sought was a perpetual and mandatory injunction. Defendant defended, by allegation and proof, upon the ground, among others, that the city of Columbus, by proper resolution and ordinances, has given to it the full legal franchise and right to erect and maintain said poles and wires as the same had been by it constructed, and denied that any right of plaintiff had been invaded. This claim was controverted by the plaintiff. The common pleas rendered judgment granting perpetual injunction and commanded the removal of the poles and wires within fifteen days from the entry of judgment, but the circuit court, as before stated, refused plaintiff any relief.

      Mr. C. J. Marriott, for plaintiff in error, cited the following authorities:

      Railway Co. v. Lawrence, 38 Ohio St., 41; Railway Co. v. Cumminsville, 14 Ohio St., 523; Pierce on Railroads, 241; Railway Co. v. Robbins, 35 Ohio St., 531; Railway Co. v. O’Harra, 48 Ohio St., 343; Railway Co. v. Williams, 35 Ohio St., 168; Railway Co. v. Winslow, 2 Circ. Dec., 240; 3 C. C. R., 425; Cohen v. Cleveland, 43 Ohio St., 190; Rhodes v. Cleveland, 10 Ohio, 159; McComb v. Akron, 15 Ohio, 479; McCombs v. Akron, 18 Ohio, 51; Crawford v. Delaware, 7 Ohio St., 459; Keating v. Cincinnati, 38 Ohio St., 141; Railroad Co. v. Naylor, 2 Ohio St., 235; Richards v. Cincinnati, 31 Ohio St., 506; Story v. Railway Co., 90 N. Y., 122; Jackson v. Jackson, 16 Ohio St., 163; Hatch v. Railroad Co., 18 Ohio St., 92; Ryan v. Cincinnati, 1 Circ. Dec., 311; 1 C. C. R., 558; Smith v. Commissioners, 50 Ohio St., 628; Smith v. Telegraph Co., 1 Circ.. Dec., 475; 2 C. C. R., 259; Daily v. State, 51 Ohio St., 348; Taggert v. Railway Co., 16 R. I., 668; Willis v. Telegraph & Tel. Co., 34 N. W. Rep., 337; Blanchard v. Telegraph Co., 60 N. Y., 510; Story v. Railroad Co., 90 N. Y., 122; Sheldon v. Telegraph Co., 51 Hun, 591; Tuttle v. Electric Co., 50 N. Y., Sup. Ct., 464; Telegraph Co. v. Lead Co., 50 N. Y. Sup. Ct., 488; Cooley’s Const. Lim., Sec. 688; Mills on Eminent Domain, Sec. 205; Pierce v. Drew, 136 Mass., 75; Building Association v. Telegraph Co., 88 Mo., 258; Lewis Eminent Domain, Sec. 131; Halsey v. Rapid Transit Co., 20 Atl. Rep., 859; Dillon Munic. Corp., Secs. 698, 698a; Telegraph Co. v. Williams, 11 S. E. Rep., 106; Clement v. Cincinnati, 9 Re., 688; 16 W. L. B., 355; Hunchman v. Railroad Co., 17 N. J. Eq., 75; Halsey v. Railway Co., 20 Atl. Rep., 859; Telegraph Co. v. Barnett, 107 Ill., 507; Telephone Co. v. Mackenzie, 74 Md., 36; Stowers v. Cable Co., 68 Miss., 559; Broome v. Telephone Co., 42 N. J. Eq., 141; Eels v. Telephone Co., 65 Hun , 516; Blashfield v. Telephone Co., 71 Hun, 532; Dusenbury v. Telephone Co., 11 Abb. N. Cas., 440; Telephone Co. v. Lead Co., 67 How. Pr., 365; Prentiss v. Telephone Co., 1 Dec., 97; 32 W. L. B., 13; McLean v. Electric Light Co., 8 Re., 619; 9 W. L. B., 65; State v. Traction Co., 10 Circ. Dec., 212; 18 C. C. R., 490; Johnson v. Electric Light Co., 54 Hun, 469; Magee v. Overshimer, 150 Ind., 127; Pierce v. Drew, 136 Mass., 75; People v. Eaton, 100 Mich., 208; Nichol v. Telephone Co., 62 N. J. L., 155; Palmer v. Electric Co., 158 N. Y., 231; Carpenter v. Electric Co., 43 L. R. A., 645; Electric Light Co. v. Hart, 1 Pa. Dist. Rep., 571; Tiffany v. Illuminating Co., 51 N. Y. Sup., (19 Jones & S.), 280; Croswell on Electricity, Sec. 126; Nicol v. Telephone Co., 42 Atl. Rep., 583; Telegraph Co. v. Jones, 78 Ill. App., 372; Cable Co. v. Eaton, 170 Ill., 513; Lewis on Eminent Domain, Par. 638; 1 Sutherland on Damages, 142; Stevenson v. Morris, 37 Ohio St., 10.

      Mr. Paul Jones, for defendant in error, cited the following authorities:

      State v. Traction Co., 10 Circ. Dec., 212; 18 C. C. R., 490; McCormick v. District of Columbia, 54 Am. Rep., 284; Pierce v. Drew, 136 Mass., 75; People v. Eaton, 100 Mich., 208; Nicoll v. Telephone Co., 62 N. J. L., 156; Cater v. Telephone Exchange Co., 60 Minn., 539; Irwin v. Telephone Co., 37 La., 63; Building Association v. Telephone Co., 88 Mo., 258; Railway Co. v. Lawrence, 38 Ohio St., 41; Magee v. Overshiner, 150 Ind., 127.
   Spear, J.

The determination of the rights of the parties in this case involves an inquiry respecting the interest which the owner of land abutting on the streets of a municipality has in those streets. As to country highways it seems to be settled in this state that while the public has the right of improvement and uninterrupted travel, the abutting owner has the right to all uses of the land not inconsistent with this right of travel and improvement. The subject is considered anew as to such highways in the case of Schaaf v. C. M. & S. Elec. Ry. Co., 66 Ohio St., 215, reported contemporaneously with this case, where it is held in substance that an interurban railroad on the side of a country highway, to be constructed and operated in the manner therein described, is an additional burden and an interference with the right of the owner of abutting lands, and that such owner is entitled to an injunction to prevent the construction until such right has been legally appropriated; and it is unnecessary to do more here than to refer to that case. It is, however, insisted that even if it be conceded that, as to country highways, the abutter is the owner of the fee to the middle of the road, and therefore has peculiar rights therein, yet rules applicable to such a situation will not apply to the case of city streets, where, under the statute, the fee is in the city. No special finding appears in the record as to the dedication of Bryden road and Irvine street, but it is presumed that Parsons’ addition was platted and recorded in accordance with the statute. The statutory provision respecting the effect of such dedication is found in section 2601, Revised Statutes, and is a substantial reproduction of the provision of section four of the act of March 3, 1831, S. & C., 1483. It is as follows: “And thereupon the map or plat so recorded shall be deemed a sufficient conveyance to vest in the municipal corporation the fee of the parcel or parcels of land designated or intended for streets, alleys, ways, commons or other public uses, to be held in the corporate name in trust to and for the uses and purposes in the instrument set forth and expressed, designated, or intended.” It seems plain that the effect of the provision is not to vest in the municipality a fee simple absolute in the streets, but only a determinable or qualified fee, and that what is granted to the city is to be held in trust for the uses intended, viz.: for street uses, and street uses only. Such title would be adequate to clothe the municipality with power to fully perform its statutory duty toward such streets, viz.: to keep the same open, in repair, and free from nuisance, and for all incidental street purposes. The limitation upon the title necessarily implies that there is a substantial interest not conveyed. Naturally it would be presumed that the right of reverter would remain either in the original proprietor, or would pass to and vest in the owners of the abutting lots. That, as between these two classes,, the interest is in the owner of the abutting lots, was held by this court in Stephens v. Taylor, Exr., 51 Ohio St., 593, where a street had been vacated by the city and the question presented was whether the fee reverted to the heirs of the original owner who dedicated the street, or to the owners at the time of the vacation of the lands abutting. No report of the case was made by this court, but it will be found fully reported by the circuit court, opinion by Shearer, J., in 6 C. C. R., 142. The same principle is announced in The Kinnear Mfg. Co. v. Beatty, 65 Ohio St., 264. That this interest is a private right of the nature of an incorporeal hereditament legally attached to the contiguous grounds and the erections thereon, has been so frequently held by this court that extended repetition would not be a justifiable use of space. It suffices to refer to Crawford v. Delaware, 7 Ohio St., 459, 469; Street Ry. Co. v. Cumminsville, 14 Ohio St., 523; Railway Co. v. Lawrence, 38 Ohio St., 41. It would seem to follow from the foregoing that, for practical purposes, there is no substantial difference in the right of the owner of lands abutting upon a country highway in such highway and that of the owner of a lot abutting on a city street in such street. In the one case, where the fee is in the landowner his rights in and over the streets are in their nature legal, while if the fee be in the public, the lawful rights of the abutting owners are in their nature equitable easements. In both situations the right of the public is for road or street purposes, and is necessarily limited to such control as is necessary to accomplish those purposes. As to country highways that object is accomplished ordinarily by securing free passage for travel and reasonable maintenance and repair, while as to city streets the necessary uses and consequent control is the same, viz.: for street purposes. The question has been a subject of much contention and of contrary decisions, but the conclusion above stated is, we think, supported by the better reason as it is by abundant authority? See Dillon’s Munic. Corp., Secs. 656a, 656b and 664a; Story v. N. Y. Elev. R. R. Co., 90 N. Y., 122; Lahr v. Met. Elec. Ry. Co., 104 N. Y., 268, and.authorities there cited; also Barney v. Keokuk, 94 U. S., 324; and Railway Co. v. Lawrence, supra.

It would be idle now to discuss at length the character of this right of the owner of abutting land in the street. By repeated adjudications it is declared to be a right which attaches to his property, and, as expressed by Swan, J., in the Delaware case, supra, and quoted .by Ranney, J., in the Cumminsville case, supra, and by White, J., in the Lawrence case, supra, is. “as much property as the lot itself.” And if, as held by these adjudications, the owner’s right in the street is to be treated as property, the only remaining question is whether or not the acts of the defendant complained of constitute, in an essential degree, a taking of that property within the meaning of the constitution. And here we inquire what is meant by the word “property?” If, as was once understood, and is still understood by some, it means only a corporeal thing, as a horse or a piece of land, then a negative answer to the question would seem to follow. If, however, the true meaning is the right of property in and dominion over the specific thing, then we would seem to he led to a different answer. That the latter meaning is the true one appears now to be the settled doctrine. Under this definition the word “property” is held to denote certain rights in things which pertain to persons and which are created and sanctioned by law. They are, as stated by one writer, “the right of user, the right of exclusion and the right of disposition * * *. A person’s right of property in things, therefore, consists of the right to possess, use and dispose thereof in such manner as is not inconsistent with law.” Lewis on Eminent Domain, section 54, and authorities cited. As put by Shaw, C. J., in Railroad v. Plymouth, 14 Gray, 161; “The word ‘property’ in the tenth section of the bill of rights, which provides that whenever the public exigencies require that the property of any individual shall be appropriated to public uses, he shall receive a reasonable compensation therefor, should have such a liberal construction as to include every valuable interest which can be enjoyed as property and recognized as such.” And that this is the meaning intended by the previous adjudications of this court which have been cited, we think there can be no reasonable doubt.

Coming now to the question of taking, it is to be admitted that it has been held necessary to the idea of a taking that there must be an exclusive appropriation, a physical, tangible appropriation of the property of another, a taking the property altogether. This is the doctrine announced in Hurt v. Atlanta, 100 Ga., 274, and some other cases. But the rule more frequently held, and, we think, the more enlightened rule, is that this limitation of the term “taking” to the actual physical appropriation of the corpus is too narrow a construction to meet the demands of justice, and that, from the very nature of the right of user and exclusion, it is evident that they cannot be materially abridged without necessarily taking the owner’s property, for, if the right of user is an essential element of ownership, then whatever physical interference annuls this right takes property. See Lewis on Em. Dom., supra, Sec. 58; Pearsall v. Supervisors, 74 Mich., 558; Grand Rapids, Bg. Co. v. Jarvis, 30 Mich., 308; Eaton v. B. C. & M. R. R., 51 N. H., 504; Thompson v. The River Co., 54 N. H., 545; Arimond v. Canal Co., 31 Wis., 316. The doctrine is not better stated than by the Supreme Court of the United States, opinion by Mr. Justice Miller, Pumpelly v. Green Bay Co., 80 U. S. (13 Wall.), 166, in discussing the law of eminent domain: “The constitutional provisions of the United States and of the several states which declare that private property shall not be taken for public use without just compensation, were intended to establish this principle beyond legislative control. It is not necessary that property should be absolutely taken, in the narrowest sense of that word, to bring the case within the protection of this constitutional provision. There may be such a serious interruption to the common and necessary use of property as will be equivalent to a taking within the meaning of the constitution.”

And when we hold, as we do, that the property interest which is here defined is protected by the constitution, article one, section nineteen, which provides that private property shall ever be held inviolate, and when taken for public use, except in time of war or other public exigency, compensation therefor shall first be made in money or first secured by a deposit of money, as well as by section five of article thirteen, which provides that: “No right of way shall be appropriated to the use of any corporation until full compensation therefor be first made in money, or first secured by a deposit of money,” etc., we but follow the law as laid down by our predecessors in the cases cited and followed in many adjudications in more recent years. And if the owner’s right in the street be property, as hereinbefore defined, and as such is protected by the constitution, it inevitably follows that the attempt by a private corporation, in order to accomplish its own private business purposes, to invade that right by placing in the street in front of the lot permanent erections which will, in any appreciable degree, impair the owner’s access to the lot, or otherwise interfere with the full enjoyment of the lot for all purposes to which it is adapted, or of the street itself, such an invasion is an attempted taking; it is a diversion of the use of the street from the purposes originally designed for it, and if it can be taken at all as against the will of the owner, it must be upon the terms prescribed by the constitution. To the Ohio decisions already cited may be added as bearing generally on the subject: Railway Co. v. Tel. Assn., 48 Ohio St., 390; Railway Co. v. Campbell, 51 Ohio St., 328; Daily v. State, 51 Ohio St., 348; Kramer v. Railway Co., 53 Ohio St., 436. Also Craig v. Railway Co., 39 N. Y., 404; Dillon’s Munic. Corp., Sec. 698a; Backus v. Detroit, 49 Mich., 110; Pierce on Railroads, 241; Broome v. N. Y. & N. J. Tel. Co., 42 N. J. Eq., 141; Palmer v. Larch Mont. Elec. Co., 158 N. Y., 231; Carpenter v. Cap. Elec. Co., 178 Ill., 129; Haverford Elec. Light Co. v. Hart, 1 Pa. Dist. Rep., 571; Tiffany v. U. S. Ill. Co., 51 N. Y. Sup., 280; Croswell’s Electricity, Sec. 126, and Lewis’ Em. Domain, Sec. 131.

Nor can it avail defendant that the city of Columbus has given consent to its use of these streets — and we do n*. t undertake to determine here whether such consent has or not been legally given — for the city has and can have no power to legalize or sanction such taking. The electric lighting by defendant is not of the streets and for the city; it is wholly for private use; hence it is a private purpose and is not a street purpose in any aspect of it. Its use of these streets is not such as was contemplated by the original dedication. On the contrary, the maintenance of its structures devolves new burdens upon the land, burdens calculated to materially impair the rights of the owner in the street. The plaintiff’s evidence tends to show that the impairment of the value of plaintiff’s lot would be serious, and no evidence was offered by defendant to the contrary. If the company has the right to plant two poles, with nine electric lines or wires, it has by the same authority, the right to plant twenty poles with ninety wires. It is a question of right, and right only. We are not required to determine whether the impairment will be much or little. If it is appreciable in character and amount, the plaintiff is entitled to relief.

Nor is the defendant’s contention aided by its contract with the city for the placing of the fire alarm box upon its iron pole. The finding shows that such pole is not necessary for the city’s use, and that a post much less objectionable in character, or a pole maintained at a point where it would be likely to cause less obstruction to access, would serve the city just as well. It is to be borne in mind that the city’s control of the streets is confined to street purposes, and is not for general municipal purposes. The distinction is obvious. The primary object of highways is for public travel. As expressed by Dickman, J., in Railway Co. v. Tel. Assn., supra, “the primary and dominant purpose of their establishment was to facilitate travel and transportation.” Whatever is a necessary incident to that use, the city may provide. Sewers, for instance, drain the surface water and thus relieve the streets from impairment and destruction, and in this respect sewers are for a street purpose; while, in addition, they may drain abutting property, thus tending to promote the public health, and in this respect they serve a municipal purpose. The same may be said as to water supply for cleansing and sprinkling the streets, and by owners of property abutting for cleaning and domestic uses, and for the extinguishment of fires. Light, also, is necessary for street purposes, and is convenient for the use of citizens, thus serving two uses, one a street purpose and the other a municipal purpose. But a fire alarm apparatus is strictly a municipal convenience; it does not enter necessarily into the control of streets. So it would seem that the city’s right to maintain a pole for fire alarm purposes may not be entirely clear, although we are not called upon in this case to pass upon that question, and do not undertake to do so.

The right of the abutting owner to the unimpaired use of the street and to be compensated for new and additional burdens imposed by diversion of the street to new uses, is recognized and enforced by a number of sections of our Revised Statutes which, without quoting their provisions, are here cited for reference, viz.: Sections 3456, 3457 and 6448. They are cited only as showing a legislative purpose to conserve the rights of abutting owners.

From the foregoing it results that the conclusion of law found by the circuit court is an erroneous one; that the holding of the common pleas is, under the admitted facts, the true rule, and that the plaintiff is entitled to the remedy accorded by the latter court. A judgment for plaintiff will, therefore, be entered here perpetually enjoining the maintenance of the poles and wires complained of and a mandatory injunction ordered requiring their removal.

Judgment accordingly.

Williams, C. J., Btjrket, Davis and Pkice, JJ., concur.


source: Caselaw Access Project

author: Btjrket, J.

license: Public Domain

text:
    The State of Ohio v. The Cincinnati Tin & Japan Company.

      Record of action to be a bar or res adjudícala — Must show that the party sought was party to the former action — To estop state, record must appear that the state authorized the previous action — Action by state to recover canal lands — State may introduce in evidence specifications of canals, but not epitome of specifications — Section 818-223, Bates’ Statutes — Attempting to malee maps, etc., prima facie evidente, unconstitutional and void, when — Application of section 19 of the bill of rights and section 23 of article 2 of the constitution— State to recover canal lands must prove former ownership— Law of incompetent evidence — Party having title demises to another party — First party cannot maintain action against third party to recover, when.

    1. To constitute the record of an action a bar or res adjudicata it must appear in the record itself that the party against whom it is offered was a party or privy in blood or estate to ■ the former action, or assisted in the prosecution or defense thereof for some benefit of his own.
    2. For a record of a previous action to which the state was not a party to be available against the state as an estoppel, it must appear that the state by statute expressly authorized the action to be brought or defended, that the officer having the action in charge acted within the scope of such authority, and in no event can the estoppel be broader than the authority so given by statute. In such cases the estoppel is by statute rather than in pais.

    3. In an action by the state for the recovery of canal lands, it is proper for the state to introduce in evidence the specifications and rules for the construction of the canals, so as to show the dimensions of the canals and banks, but an epitome of such, specifications and rules prepared by the canal commission is not competent evidence.
    4. Section 218-223, Bates’ Statutes, in so far as it attempts to make the findings, maps, plats, and surveys prepared by the canal commission competent or prima facie evidence of the truth of such findings, or the boundaries of such lands, or that the state has the ownership of such lands, or an interest therein, is unconstitutional and void, being in conflict with section 19 of the hill of rights, and section 28 of article 2 of the constitution.
    5. In an action by the state for the recovery of canal lands, the state must first prove by competent evidence that the lands in question were formerly part of the canal system of the state, and then the burden shifts to the defendant to show that he has in some lawful manner acquired title from the state.
    6. "Where a plaintiff fails to introduce any evidence tending to prove his cause of action, and the defendant introduces incompetent evidence over the objection of the plaintiff, the introduction of such evidence is no ground for reversing the judgment, because the judgment is properly founded upon the failure of proof, unaided by the incompetent evidence.
    7. Where a party having title to lands, demises them with possession for a term of years to another party, such first party cannot maintain an action against a third party for the recovery of possession of such lands, while such demise is outstanding.
    (Decided April 22, 1902.)
    Error to tbe Circuit Court of Hamilton county.
    This was an action in tbe court of common pleas by tbe state to recover possession of wbat is known as “Lockport Basin” in Cincinnati, tbe claim by tbe state being that tbe basin was formerly part of tbe canal system of tbe state.
    Tbe defendant denied that tbe basin bad ever been part of tbe canal system of tbe state, and plead as an estoppel tbe record of a judgment in tbe superior court of Cincinnati in Canal Elevator and Warehouse Company, tbe assignees of a lease from tbe state to Brown & Wood for ninety-nine years renewable forever, against Buckingham & Mathers, tbe predecessors in title to tbe Cincinnati Tin & Japan Company, which action was commenced by tbe Warehouse Company as tbe lessee of tbe state for tbe recovery of this same basin on January 20, 1872, and final judgment rendered in favor of the defendants in that case on November 18, 1876. It is averred in the answer of the Japan Company that the Warehouse Company commenced that action upon the advice and procurement, and with the assistance, of the state, that the Warehouse Company claimed title under its lease from the state, which title was denied, and title averred to be in the defendants in that case. In the final judgment the court found in that case that the plaintiff, the Warehouse Company, “is not entitled to the possession of the premises, but that the defendant is seized in fee simple thereof, and entitled to retain possession thereof.” The judgment is “that the plaintiff’s petition be dismissed, that the title of the defendant to said premises be quieted against the claim of the plaintiff to any interest or estate therein, that the plaintiff be enjoined perpetually and forever restrained from disturbing or interfering with the defendant’s possession thereof.”
    On the trial of the case at bar the Japan Company offered in evidence an appropriation by the general assembly May 5, 1869, as follows:
    “To pay attorneys’ fees and incidental expenses of the board of public works, to include fees and costs, of maintaining title of the state to the lands in the city of Cincinnati which have been leased to Thomas Brown and Adolph Wood, two thousand dollars.”
    The reports of the board of public works as to the progress of the action were also introduced in evidence, the one for 1881 showing that the case had been decided adverse to the state. There was also offered in evidence the appropriation of February 27,, 1880, as follows:

      “To pay A. Taft & Sons attorneys’ fees for services-rendered and expenses from 1873-1877, inclusive, in recovering land in Cincinnati, twelve hundred dollars ($1,200).”
    The state, upon the trial, objected to the introduction of said record in evidence, but the court overruled the objection, to which the state excepted.
    The state, upon the trial, offered in evidence the-maps, plats, surveys and findings made by the canal commission under and by virtue of section 218-223,. Bates’ Statutes, and the same were excludéd upon, objection of the defendant below.
    The state, upon the trial, offered in evidence an. epitome of the rules and specifications under which the canals were originally constructed, for the purpose of showing the width and dimensions of theberme banks. Upon objection being made the court, excluded the evidence and the state excepted.
    The jury found in favor of the defendant. A motion for a new trial was filed and overruled, exceptions taken, and judgment rendered on the verdict. The circuit court affirmed the judgment. Thereupon, the state came here seeking to reverse the judgments-of the courts below.

      Mr. John M. Sheets, attorney general; Mr. Smith-W. Bennett and Mr. John E. Todd, for plaintiff in error.
    This action was instituted in the court of common pleas in and for Hamilton county, Ohio, by the state, of Ohio as plaintiff filing therein its petition in ejectment in which it claimed it was the owner of certain lands therein described, being part of the Miami and Erie, canal and known as “Lockport Basinthat the defendant unlawfully keeps the plaintiff out of possession of the same and ending with a prayer for possession of the premises.
    The defendant answers in three separate defenses.
    1. Admission of corporate capacity and denial that plaintiff has a legal estate in or is entitled to immediate possession of the premises and denies that the defendant unlawfully keeps it out of possession.
    2. Pleads the record in a cause in the superior court of Cincinnati entitled The Cincinnati Elevator and Warehouse Company v. E. Jefferson Buckinham and Richard Mathers* partners as Buckingham & Mathers, in which it was averred that the judgment of the court was against the plaintiff and in favor of Buckingham and Mathers. That the plaintiff in that action was the lessee of the state of Ohio and that the action was brought with the assistance of the state of Ohio and under its advice and procurement, and that' the judgment in that cause is still in full force and effect, and that the plaintiff herein by reason of the judgment aforesaid is estopped from prosecuting this action.
    3. The third defense relied upon is uninterrupted possession for a period of more than twenty-one years.
    To this answer the state filed a reply denying each and every allegation of the second defense except that the Cincinnati Elevator and Warehouse Company was the lessee of the state of Ohio. It further replies and says that if there was any such judgment rendered against the Cincinnati Elevator and Warehouse Company, the same is not binding upon the state of Ohio because it was not a party to said action, and the action was begun without its knowledge and it was not represented by counsel or in any way a party to the record, and denies that the same is any adjudication of the title of the state of Ohio in the premises, or that the record therein does in any way estop the plaintiff in this action.
    The balance of the reply is in the nature of a demurrer challenging the answer as not sufficient in law to constitute a defense to the petition.
    The state of Ohio prosecutes error to this court seeking the reversal of the judgment of affirmance by the circuit court.
    Is statute unconstitutional under which evidence was offered?
    In holding that Sec. 218-223 of the Revised Statutes is unconstitutional.
    Upon the trial of this cause in the court below, the plaintiff in error offered in evidence certain maps, plats, findings and parts of public documents of the canal commission, the board of public works and chief engineer, all of which were duly certified, and which the court refused to be admitted as evidence for the state. To the ruling of the court exceptions were noted by the state.
    This evidence was introduced by virtue of Sec. 218-223, Bates’ Annotated Revised Statutes. The court in passing upon the admissibility of the evidence thus offered by the state, held that that section was unconstitutional and hence refused to permit the evidence to be introduced.
    In this we claim that the trial court erred.
    The court’s objection to the statute was that the statute created a prima facie case for the plaintiff, by permitting the maps and plats to be thus introduced.
    We did not think that any objection could be made to this character of testimony, if properly certified. The holding of the courts have been uniform on that question. Cooley on Constitutional Limitations (6 ed.), p. 450.
    The court in passing upon the objection made by defendant’s counsel to the evidencein question, seemed to think that it gave the state of Ohio an unjust advantage in the controversy; and seemed to rule as if under the impression that the statute made the plats, maps and findings conclusive evidence instead of prima facie. The statute says that such plats, maps, and findings “shall be taken and held to be competent prima facie evidence of the truth of such findings,” etc. It is conclusive evidence of no one fact in the-case. If so, we would not attempt to sustain so unjust a law. \
    We are not without authoritative expressions from our own Supreme Court upon the validity of similar-laws. Pennsylvania Company v. McCann, 54 Ohio St., 10; Railway Co. v. Kreager, 61 Ohio St., 312.
    Similar Statutes in Ohio.
    Section 2859. Making the tax duplicate prima facie evidence, on a trial for collection of taxes, of the amount and validity of such taxes.
    Section 2877. Making auditor’s deed prima facieevidence of a good and valid title in the grantor, his. heirs and assigns.
    Section 2908. Similar to above.
    Section 1176. Providing for the record of a copy of field notes of the corners and bearing trees to each section, etc., of land; and making a certified copy from such book prima facie evidence when the original would be received.
    Section 4143-12. Providing for the record of papers of the Connecticut Land Co.; that a certified. ■copy thereof shall be prima facie evidence of the existence of such paper.
    Section 4143-13-14. Providing that the commis;sioners of Fulton county may purchase an abstract of titles from one E. L. Barbor; and that such abstract, ■etc., shall be taken and held to be prima facie evidence in all questions of title relating thereto.
    Section 3233-3. Providing that a religious society, claiming to be incorporated, and performing the duties of a corporation for thirty years, shall be prima facie evidence of the issue of such charter as claimed "by such society.
    Section 5339b. Providing for making restored rec■ord evidence of burned or destroyed record.
    Section 6389. Providing what shall be sufficient ■evidence of marriage.

    Section 6388. Providing that a copy of the record •of a minister’s name, duly recorded, shall be good •evidence that the minister was authorized to solemnize marriages.
    Section 6399. Providing that a copy of the entries, from the record of birth and deaths, duly certified, shall be received in all courts and places as prima facie evidence of the facts therein stated.
    Section 5862. Providing that the order of probate shall be prima facie evidence of the due attestation, execution and validity of a will.
    Section 5245. Copies of papers, books and records generally made competent evidence.
    In addition to the above sections of the statutes, about thirty additional sections could be cited, all of which are similar in their effect, to the section under consideration. They all depend upon the same general proposition for their validity, viz.: that rules of evidence are not rules of property ; and that the legislature has full control over all such rules, and violates, no constitutional provision in enacting them, if in so doing it merely defines a prima facie case, or changes the burden of proof from one party to the other. Hand v. Ballou, 12 N. Y., 541; Hickox v. Tallman, 38 Barb., 612; Pratt v. Jones, 25 Vt., 303; Blackwell on Tax Titles, 100; Sedgwick on Const. and St. Law, 351; Allen v. Armstrong, 16 Ia., 508; Amberg v. Rogers, 9 Mich., 332.
    The legislature may determine which party shall have the burden of proof and that any evidence however slight shall make a prima facie case. State v. Cunningham, 25 Conn., 195; State v. Morgan, 40 Conn., 44; Wooten v. State, 24 Fla., 335; Edwards v. State, 121 Ind., 450; State v. Hurley, 54 Me., 562; Commonwealth v. Rowe, 14 Gray (Mass.), 47; Commonwealth v. Curran, 199 Mass., 206; Howard v. Moot, 64 N. Y., 262; Auburn v. Merchant, 103 N. Y., 143 ; 57 Am. Rep., 705; State v. Mellor, 13 R. I., 666; Lincoln v. Smith, 27 Vt., 328; Delaplaine v. Cook, 7 Wis., 44.
    The legislature of a state has the power by statute' to provide that certain circumstances shall constitute prima facie evidence of the facts in issue. The law of evidence, being a part of the remedy, is within legislative control. Von Hoffman v. Quincy, 71 U. S. (4 Wall.), 535; Mason v. Haile, 25 U. S. (12 Wheat.), 370; Rathbone v. Bradford, 1 Ala., 312; Richmond & D. R. Co. v. Mitchell, 92 Ga., 77; Holland v. Dickerson, 41 Ia., 367; Hays v. Armstrong, 7 Ohio (pt. 1), 247; Parker v. Sterling, 10 Ohio, 357; Lewis v. McElvain, 16 Ohio, 347; Goshorn v. Purcell, 11 Ohio St., 641; Pennsylvania Co. v. McCann, 54 Ohio St., 10;
      Long’s Appeal, 87 Pa. St., 114; Vanzant v. Waddel, 2 Yerg. (10 Tenn.), 259.
    This testimony was permitted by tbe court to be introduced upon the theory, that, as tbe second defense in tbe answer sets forth, tbe action of tbe Cincinnati Elevator and Warehouse Company v. Buckingham & Mathers, was in fact carried on and prosecuted — “upon tbe advice and procurement and with tbe assistance of tbe plaintiff’s herein,” and having been so carried on and prosecuted, it became and was in law an action by the state of Ohio.

    It will be observed that tbe evidence shows: (a) Tbe State of Ohio was not a party to said action, (b ) The judgment rendered therein was against tbe Cincinnati Elevator and Warehouse Company, and not against tbe state of Ohio. (c ) Tbe Cincinnati Elevator and Warehouse Company was only tbe lessee of tbe state of Ohio, and tbe judgment rendered was merely tbe adjudication of its- rights as lessee, and not an adjudication of tbe interests, rights and title of tbe state.
    It was not possible to sue tbe state of Ohio without its consent first having been given. Board of Liquidation v. McComb, 92 U. S., 531; Nathan v. Virginia, (1 U. S.) (1Dall.), 77n; Briscoe v. Bank of Kentucky, 36 U. S. (11 Pet.), 257; Curran v. Arkansas, 56 U. S. (15 How.), 304; Beers v. Arkansas, 61 U. S. (20 How.), 527; Railroad Co. v. Tennessee, 101 U. S., 337; Cunningham v. Railroad Co., 109 U. S., 446.
    If a state cannot be sued directly, it could not be indirectly. If a judgment could not be rendered against a state without its consent having been given to be sued, tbe state could not be affected by a judgment rendered against tbe state’s lessee.

      A state cannot be bound by a judgment rendered against its own officers. Davis v. Gray, 83 U. S. (16 Wall.), 203; Carr v. United States, 98 U. S., 433.
    It is not necessary to cite authorities to show that the privileges of the state and its rights as a sovereign, are as great as are those' of the general government secured to itself.
    How could it then be dispossessed of its interest in real estate by a judgment against its lessee?
    It will be observed by reading the judgment of the Cincinnati superior court in Canal Elevator Co. v. Buckingham et al., that the judgment is only operative upon the plaintiff and the state of Ohio cannot by any reasoning be made to mean the same person. If the judgment of the court is against John Doe individually, it cannot be extended to Richard Roe unless he claims under Doe. State v. Gas Light & Coke Co., 18 Ohio St., 262.
    The Canal Elevator and Warehouse Company in the case above mentioned was the tenant of the state by virtue of the powers vested in the board of public works of the state to execute such leases, but the power to lease did not confer the power to sell or give away the premises in question. This was a board of limited powers. They had no right or authority to enter the appearance of the state of Ohio in any action. We cannot see how by any fiction a judgmentrecovered against the lessee could even be construed to be a judgment against the board of public works, let alone that it would be a judgment, and effectual as a bar, against the state of Ohio.
    If the defendant, the Cincinnati Tin & Japan Company, claimed through Buckingham and Mather, or in other words, if they were a link in their chain of title, the judgment rendered in that case, if against the state, or its grantors, might be used by the defendant in proving its ownership to the land in question.
    But that is not the question here. The objection is twofold: (a) To using the evidence upon which the judgment was rendered. In presenting this objection we waive for the moment the fact that the state of Ohio, or its grantors, was not a party to that cause. But suppose they were. It could only be the record, viz. .: the judgment, that could avail the defendant, the Cincinnati Tin & Japan Company, and not the evidence upon which the judgment was based. The judgment concludes the parties and privies. But here is a privy to that judgment refusing to be satisfied with it, and going back of it introduces the evidence again, as much as to say, that it would again submit to the jury in this cause the evidence in the trial thirty years before, and have them return a new verdict thereon, (b) The further objection we make to this class of testimony is that the judgment is no bar to an action instituted by the state of Ohio for the same premises. Not being able to use the same as a bar or estoppel, the evidence was improper for any purpose. It would not even avail as between individuals, and a fortiori, cannot avail as against the state. Bennett v. Leach, 25 Hun (N. Y.), 178.
    It was not evidence against the state. Ainslie v. Mayor, 1 Barb., 168; Thompson v. Clark, 4 Hun, 164; Leland v. Tousey, 6 Hill (N. Y.), 328; Sheridan v. Andrews, 49 N. Y., 478; Masten v. Olcott, 101 N. Y., 152; Kent v. Lasley, 48 Wis., 257; Bates v. Smith, 5 Sneed, 105; Stout v. Taul, 71 Tex., 438; Orthwein v. Thomas, 13 N. E. Rep., 564; Smyth v. Gayle, 58 Ala., 600; Bresh v. Cook, Brayt. (Vt.), 89;
      Samuel v. Dinkins, 12 Rich. (S. C.), 172; 75 Am. Dec., 729; Harkness v. Corning, 24 Ohio St., 416.

      Mr.E. D. Peck and Mr. William Worthington, for defendant in error.
    ■ Both--parties claim title under the Bank of the.. United States, which, at one time, OAvned the property in question, and which is within the lines of a subdi-■ vision of lands made by the bank.
    Defendant offered a series of conveyances claiming to have derived title through them from the bank'' of the United States; and further called a witness who testified in substance that he had made an examination of all the records in the office of the board of public works and canal commissioners of the state of Ohio, and, that he had found nothing showing an appropriation of the land in question or any proceedings to appropriate it, or any proceedings, orders or contracts- relating to the construction of a basin at that point; or any award of damages allowed or refused-;- and also the testimony of Col. Samuel Bachtell, assistant engineer of the public works of the state of Ohio, , to the effect that he was familiar Avith the records- of the board, and that all the existing records pertaining to the construction and maintenance of the Miami and Erie canal were kept in the custody of the board; that he had made a search for any plat or plan qf the portion of the canal Avithin the city of Cincinnati known as “Lockport Basin,” but had found no plat earlier than one made in the year 1851, except copies of the plats for the United States Bank subdivision certified from the records of Hamilton county. - • . ."

      The basin was constructed immediately after the construction of the canal at that point, and was in use as early as 1832. The state not only has no record of appropriation, but there is nothing of any sort showing any plan for a basin or any specifications or contract for the same, or any illusion of any sort to such a basin in the records of the board of public works’or canal commissioners prior to the year 1851; so that the state’s claim of an appropriation of the property, leaving out of view the finding of the canal commission excluded from the testimony, rests upon the solitary testimony of the two navigators aforesaid, viz.: that they had seen canal boats pass through the basin, had seen them landed and lying at the warehouses abutting upon it, and had seen them winded, or turned, in the basin. It is extremely doubtful if those facts alone constitute a prima facie case of appropriation by the state. Smith v. State, 59 Ohio St., 278; Miller v. Weisenberger, 61 Ohio St., 561.
    When we take the scanty testimony offered by the state of the user and occupation in connection with the testimony offered by defendant, it will appear that the same conclusion must follow as that which was arrived at by this court in the Smith and Weisenberger cases, and for the same reason. While it is true that boats may have turned in this basin when it existed, it is also true that there was no necessity for the basin for that purpose, for boats are now daily turned at that part of the canal.
    The only commission whose plats and findings are made evidence per se by Sec. 218-223, Rev. Stat., was the original commission appointed under the act of 1888; the language making such documents evidence is limited in terms to the findings, maps, plats and surveys of that commission, and has never by any subsequent statute been extended to those of any other commission. The documents offered in evidence here were none of them made under the authority of that commission, as appears by their dates; for the authority of that commission ceased in 1890, and the earliest of these documents bears date in 1896. Therefore, Section 218-223 does not warrant the admission of any of them.
    Section 79, Revised Statutes, precludes giving Section 218-223, retrospective operation.
    The court below held, and we submit correctly, that' assuming that Sec. 218-223, Rev. Stat., was applicable to the plats and findings of subsequently created commissions, and were intended to make documents such as these admissible in evidence at all, it could not be construed, in view of Sec. 79, Rev. Stat., as intending that they should be received in evidence with reference to a cause of action existing on April 12, 1889, when this provision giving evidential effect to proceedings of the canal commission was first introduced into the statutes.
    It can not be denied that this provision relates at least to the remedy. We think, for reasons subsequently to be stated, that it goes farther and affects the right as well; but for the purpose of the question immediately under consideration this contention need not be. urged. Counsel for the state justify their argument as to the admissibility of these documents as evidence upon the assumption that the remedy only is affected, and that such effect does not transcend the power of the legislature. Were this true it would not follow that the legislature intended that existing causes of action should be remedied under this new rule.' The act in question, 86 O. L., 270-274, contains no clause explicitly declaring; that it shall control existing causes of action. It does indeed say that ‘'‘this act shall take effect and be in full force from and after its passage;” but it has been repeatedly held by this court that this declaration is not sufficient to give a remedial act a retrospective operation, and that the intent to give it such effect must appear either explicitly, as in the act of April 25, 1898, amending Sec. 6710, 93 O. L., 255, or by implicit expression so plain and forcible that he who runs may read. State v. Rabbitts, 46 Ohio St., 178; Insurance Co. v. Myers, 59 Ohio St., 332; Meader v. Blymer, 60 Ohio St., 621. And this is true whether the changes introduced by the new law be in the form of an amendment or a supplement to existing statutes, as in the cases cited above, or a change of the common law, as was held in Railway Co. v. Hedges, 63 Ohio St., 339.
    Section 218-223, Rev. Stat., if applicable, is unconstitutional.
    If Section 218-223, Rev. Stat., can be construed as commanding or authorizing the admission in evidence of the documents in question offered by the state, then we submit that to that extent it.infringes upon rights secured and guarantees given to the defendant by both state and federal constitutions.
    We beg leave to call attention to a cardinal rule of constitutional construction always observed, and recently most happily expressed by the Supreme Court of the United States. Fairbanks v. United States, 181 U. S., 283; People v. Cannon, 139 N. Y., 32; County Seat of Linn County, 15 Kan., 500.

      We have an opposite illustration in our own jurisprudence. Our constitution provides that all laws of a general nature shall have a uniform operation throughout the state. It provides also that corporaté powers shall not be given by special act. This court has repeatedly held that while these provisions, left to the legislature the power to classify, yet the classification, when made, must not be whimsical or without apparent reason, but must have a fitness of application to the subject of legislation. Falk, Ex parte, 42 Ohio St., 638; Railway Co. v. Martin, 53 Ohio St., 386; Cincinnati v. Steinkamp, 54 Ohio St., 284.
    Instances of the transgression by the legislature, in adopting rules of evidence and procedure, of limits expressly imposed by the constitution or inherent in the ideas of trial by jury, equality of protection, and due process of law, are to be found in the following cases: Dupy v. Wickwire, 1 D. Chip., 237; Merrill v. Sherburne, 1 N. H., 199; Proprietors of the Kennebec Purchase v. Laboree, 2 Greenleaf, 275; Thistle v. Frostberg Coal Co., 10 Md., 129; Webster v. Cooper, 55 U. S. (14 How.), 488; Rich v. Flanders, 39 N. H., 304; Woart v. Winnick, 3 N. H., 473; Society v. Wheeler, 2 Gall., 105; Clark v. Clark, 10 N. H., 380, 386.
    Conversely it follows that in their opinion a statute which did destroy an existing right of defense would be a retrospective law. State v. Beswick, 13 R. I., 211.
    Let us examine now the condition of the law as affecting the rights of these parties litigant, and the rules of procedure for determining those rights, as they stood prior to the passage of thé act of 1889, and the changes which that law is claimed to have introduced. ■ ’ ■
    Under the Canal Act of 1825, the state acquired legal title in fee simple to lands taken by it; and ©penly, notoriously and exclusively used for canal purposes;' State v. Railway Co., 53 Ohio St., 189. If the use were not exclusive, but merely incidental ©r constructive, or in common with that of the .proprietor at the time the state’s use began, his title would not be disturbed. Smith v. State, 59 Ohio St., 278; Miller v. Weisenberger, 61 Ohio St., 561; State v. George, 34 Ohio St., 657.
    The defendant is confessedly in exclusive possession of the property in question. The petition, filed by the Canal Elevator and Warehouse Company, .the lesse'e of the state, shows that this exclusive possession began at least as early as 1868, thirty years. before the bringing of this action.
    The evidence offered by the defendant, if adfiiissible, at least tended to show that the state had néver made exclusive use of the property, and that, the flowing of canaTwater over it had been the act of the. defendant’s predecessors in title for their own benefit, and not by them as a dedication to the state, or by the state as adverse to them, and consequently that the state, under the doctrine of Smith v. State, 59 Ohio St., 278, never gained title by occupancy.!:
    According to principles as old as the common .lahV, this possession is in itself, as graphically’ stated in Pollock & Wright on Possession, pages. 22 and 23,!l“a root of title.” It is in itself a species of title,1; and/a perfect ground of defense until destroyed'by the showing by the plaintiff of a prior possessiori in Mmself, ora better-right to possession. Ludlow v. McBride,
      3 Ohio, 240; McNeely v. Langan, 22 Ohio St., 32; Trustees v. Thoman, 51 Ohio St., 285.
    Thus prior to the passage of this act of 1889, the defendant’s predecessors in title, being in possession of this land, by that bare fact had title to it, and this title was good, and this possession was its muniment, as against all who could not show a better title, including the state of Ohio. It was a vested right; and although it was subject to defeat by one showing a better title not barred by the statute of limitations, yet until such showing was made it was as perfect and indefeasible as any other right.
    Look now at the changes which it is claimed the act of 1889 has made. The state of Ohio, by producing the declaration of its agent that in his opinion it has title to the land, thereby introduces evidence not merely that it has title, but, being prima facie, of such weight as to overcome the possessory title of the defendant, and to require the defendant to show a better title. This opinion of the agent of the state is formed upon such inquiry as he may see fit to make, and consequently to omit making. The agent is not even required or authorized to rest his judgment upon sworn statements; for no authority is given him to administer an oath, and one administered by any other officer would, if taken, be purely voluntary, and not subject the witness to the penalty of perjury. Hamm v. Wickline, 26 Ohio St., 81.
    We submit that if Sec. 218-223, Rev. Stat., has the effect which counsel for the state would give to it, it would attempt to accomplish the things which we have just mentioned, and for that reason it would be void as infringing upon the following provisions of the state and federal constitution. Constitution of Ohio, Art. 1, Sec. 1; lb., Sec. 2; United States Const., amendment 14, Sec. 1; Constitution of Ohio, Art. 1, Sec. 19; lb., Sec. 16; Constitution of Ohio, Art. 2, Sec. 28; lb., Sec. 32, Art. 1, Sec. 5; Art. 4, Sec. 1.
    We submit that the provisions in question infringe upon these constitutional provisions because:
    1. It is retroactive.
    2. It denies the defendant in this particular class, of actions the equal protection of the laws, inasmuch as it subjects him to a burden and gives the state an advantage Avhich does not exist in any other action to recover real property.
    3. It attempts to destroy, and at least impairs, a vested right.
    4. It attempts to give the state color of title to what is private property, and this without compensation.
    5. It is an exercise of judicial power by the legislature.
    6. It confers judicial power upon appointed executive officers.
    7. It violates the right of trial by jury.
    That the act is retrospective, and retroactive in effect, is the essence of the claim made by the state. Commissioners v. Rosche Bros., 50 Ohio St., 103. And it is manifest, we think, that this statute does the things which Art. 2, Sec. 28, of our constitution so defined, prohibits.
    It will be claimed by counsel for the state that as the statute but relates to admissible evidence and burden of proof, it is merely regulative of procedure, and so is remedial, and not Avithin the inhibition. It has been expressly decided in New Hampshire (see Rich v. Flanders, 39 N. H., 304), that their constitutional provision forbidding retrospective legislation throws at least the same protection over litigants in civil cases which the ex post facto provision of the federal constitution, Art. 1, Sec. 10, gives to persons accused of crime. Prom the very beginning the clause in the federal constitution against ex post facto laws has been considered as prohibiting a change, in the rules of evidence so as to receive for conviction less or different testimony than the law required when the crime was committed. Calder v. Bull, 3 U. S. (3 Dall.), 386, 390. And this exposition has been again approved in the last pronouncement of the Supreme Court of the United States upon the subject. Mallett v. North Carolina, 181 U. S., 589; Coal Co. v. Rosser, 53 Ohio St., 12; State v. Gardner, 58 Ohio St., 599.
    That it impairs vested rights and violates rights Of property is also manifest.
    It practically transfers title from the defendant to the state. The defendant has title to the property by its bare possession, but this title does not avail it because, and only because, the state is plaintiff. This title then is destroyed, the benefit of it transferred to the state, and the defendant put to proving a better title. Nor is even that sufficient. The state under the act is entitled to recover unless the defendant proves affirmatively that the. state’s claim of title is false. He loses his own vested right to hold the property until one comes having a better title than he, and is given in return the empty privilege of attempting to prove facts which can be established only by witnesses long since dead. How inconsistent this is with- the rights securéd by our constitution can be seen by a perusal not mérely of the cases we have cited from other jurisdictions; but from the following in our o^srn. reports: McCoy v. Grandy, 3 Ohio St., 463; Magruder v. Esmay, 35 Ohio St., 221; State v. Guilbert, 56 Ohio St., 575.
    That the act is either an exercise of judicial power by the legislature, or is the conferring of judicial power upon appointed executive officers is, we think, clear. The opinion of the canal commission embraced in its finding which is made evidence, is not of itself and by its own weight probative of the facts it declares. The legislation which requires such conclusion to be accepted as presumptively correct in the adjudication of rights, is in fact not legislation, but arbitrary decision, judicial action, or else is the conferring upon those officials of judicial power. It clothes their action with the attributes which theretofore had pertained to courts of justices only. State v. Guilbert, 56 Ohio St., 575.
    And for this reason such legislation also violates the right of trial by jury. That right, as secured by the constitution, means the right of trial by jury in like manner a.nd in like cases as at the common law. Capital Traction Co. v. Hof, 174 U. S., 1; Work v. State, 2 Ohio St., 296.
    The lease to Brown and Wood barred a recovery.
    A part of the evidence offered by the state consisted of a lease of the premises in controversy to Thomas Brown and Adolph Wood, dated April 23, 1868, for “the term of ninety-nine years, renewable forever upon the same terms.” There is nothing in the record showing that the lease is not now in as full force and effect as it was when executed. It does appear that the lessees assigned their interest to the Canal Elevator and Warehouse Company, December 17, 1868, and .that - is the end of the .evidence on the subject. We submit that the fact of this outstanding lease was sufficient ground for the judgment below. The effect of it was to show that the state had transferred the right of possession, if any she had, to the persons named as her lessees — and for that reason could not maintain an action of ejectment for the possession of the property.
    The facts conclusively establish the truth of the allegation of the answer, that the action by the Cincinnati Elevator and Warehouse Company, lessee of the state, was brought upon the advice and procurement and with the assistance of the state, and was prosecuted to final judgment by the attorneys employed, paid and controlled by, the state. The cause of action was the same as. in this; and while the parties to the record are not the same, the defendant derives title from, and is in privity with, Buckingham & Mathers, defendants in the former action, and the State was the lessor of the plaintiff, as well as the moving party in the prosecution of the former action, which was prosecuted with its means, under its control, and for its benefit, in the name of the Canal Elevator and Warehouse Company.
    Under these circumstances we submit the plaintiff yas ' estopped to maintain the action below. Although the state was not named as a party to the previous action, it is nevertheless bound by the judgment. It frequently happens that parties other than those whose names appear on the record of a judgment are estopped by it. If a party causes a suit to be brought for his own benefit in the name of another it is clear that such party is bound by the result, upon the same principles that he would be bound by the result of an action in his own name. Greénleaf'on Evidence, Secs. 522-523; Lovejoy v. Murray, 70 U. S. (3 Wall.), 1; Robbins v. Chicago, 71 U. S. (4 Wall.), 657; Litchfield v. Goodnow, 123 U. S., 549; Hauke v. Cooper, 108 Fed. Rep., 922; Chambers v. Lapsley, 7 Pa. St., 24; Calhoun v. Dunning, 4 U. S. (4 Dall.), 120; Davis v. Wood, 14 U. S. (1 Wheat.), 6; Plumb v. Goodnow, 123 U. S., 560; Valentine v. Mahoney, 37 Cal., 389; Yates v. Smith, 38 Cal., 60; Douglas v. Fulda, 45 Cal., 592; Altschul v. Doyle, 55 Cal., 633; People’s Sav. Bk. v. Hodgon, 64 Cal., 95, 98; Reay v. Butler, 69 Cal., 572, 574; People v. Holladay, 93 Cal., 241; Freeman on Judgments, Secs. 174, 185.
    One who prosecutes or defends an action by employing counsel, paying costs, and doing those things which are usually done by a party will be bound by the judgment rendered therein. Stoddard v. Thompson, 31 Ia., 80; Lyon v. Stanford, 42 N. J. Eq., 411; Conger v. Chilcote, 42 Ia., 18; Warfield v. Davis, 14 Mon. (B.), 33; Elliott v. Hayden, 104 Mass., 180; Castle v. Noyes, 14 N. Y., 329; Jackson v. Griswold, 4 Hill, 522; Train v. Gold, 5 Pick., 380; Tate v. Hunter, 3 Strob. Eq., 136;Wood v. Ensel, 63 Mo., 193.
    Where a suit is brought in the name of a party for the benefit of another, 'who directed and advised the same, the latter though not a formal party to the record, is a privy in interest and will be concluded by the judgment. Cole v. Favorite, 69 Ill., 457; Bennitt v. Mining Co., 119 Ill., 9.
    If one enters upon the possession of the lessee, this ousts the lessor of his freehold. 6 Com. Dig. Tit. Seisin, letter F; Foster v. Morris, 3 A. K. Marsh., 609; Taylor, Landlord and Tenant, Sec. 180.
    It is the duty of the landlord to put his tenant into complete possession of. the premises. Taylor, Landlord and Tenant, Secs. 176, 177.

      In ap number of cases it has been held that a landlord is not bound by a proceeding in ejectment against his tenant of which the landlord had not notice, but it is generally conceded that the result would be otherwise if the landlord had notice. Lowe v. Emerson, 48 Ill., 162; Cadwallader v. Harris, 76 Ill., 370; Douglas v. Fulda, 45 Cal., 592; Striddle v. Saroni, 21 Wis., 173; Oetgen v. Ross, 47 Ill., 142; Sampson v. Ohleyer, 22 Cal., 200.
    The evidence discloses the facts that the litigation in the case of the Canal Elevator and Warehouse Co. v. Buckingham & Mathers was commenced by the officers of the state pursuant to authority granted by the general assembly, and was conducted and controlled throughout by counsel retained and paid by. the state. The title of the state to the property in dispute was the sole ground of controversy. The large rental, reserved by the lease as well as all reversionary rights of the state were at stake. The board of public works and general assembly were fully alive to these facts. It will be noted that in one of the reports of the board of public works the case is alluded to as that of “the State v. Buckingham & Mathers,” and their final report is that the decision was adverse to “the state.” As the chief party in interest it was the right of the state to institute and control the litigation — upon the same principle that any surety or warrantor of title has the same right— and for these reasons the state is necessarily bound by the judgment.
    There is nothing, we submit, to exempt the state from the operation of the rules of law applicable to individuals in such cases. State v. Buttles, 3 Ohio St., 309; Curran v. Arkansas, 56 U. S. (15 How.), 304; Davis v. Gray, 83 U. S. (16 Wall.), 203.

      .If authority is needed to show that in Ohio a judgment in ejectment concludes parties and their privies it will be found in Hinton v. McNeil, 5 Ohio, 509.
    The construction of the canal by the state of Ohio through the city of .Cincinnati was plainly a matter of public and general interest, and the declarations of deceased persons Avho were in a position to know the facts whereof they spoke as to its existence and. boundaries, and other facts and circumstances relating to it, are admissible on the ground that declarations of deceased persons as to matters of public and general interest are admissible as evidence. Where-ever boundaries of public property or subdivisions of the state coincide Avith or define boundaries of private estates, evidence as to such boundaries derived from declarations of deceased persons having knowledge thereof is admissible. 1 Whart. Ev., Sec. 185; 1 Greenleaf, Sec. 145; People v. Velarde, 59 Cal., 457; Detwiler v. Toledo, 6 Circ. Dec., 297; 13 C. C. R., 572; Caldwell v. Carthage, 40 Ohio St., 453.
   Btjrket, J.

The state does not claim or derive title to the basin from or through the Canal Elevator and Warehouse Company, and it Avas not a party plaintiff or defendant in the action brought by that company for the recovery of the basin, and the judgment was not against the state, but against the company alone. The general rule is that to be bound by a‘judgment the party to be bound must have been a party or privy in blood or estáte. Here the state was neither.

For a record to constitute a bar or res adjudieata against one not a party or privy, but Avho'assisted in the prosecution or defense of the action in aid of some interest of his own, the record itself must in some way show such assistance. State of Florida v. State of Georgia, 58 U. S. (17 How.), 478.

If, however, the record is to be used merely as an estoppel in pais, then the advice, assistance or procurement may be shown by evidence aliunde the record under the usual rules of estoppel. Many cases have been cited and distinguished by counsel, but all of them fall under one or the other of the above rules, or else are controlled by local statutes or rules of decision.

Actions by or against the state can be brought only by express authority of the general assembly, and the state cannot be estopped by an act of its officers, unless the state has by statute authorized such officer to act on that- behalf, and then the estoppel can be no broader than the authority. The estoppel in such cases is not so much in pais as by statute.

As the state was not a party or privy to the record, and the record fails to show that the state assisted in the case, and the general assembly not having passed any act authorizing such action, or such assistance, it follows that the state is not bound or es-topped by that record, and that the court of common pleas erred in admitting the same. Whether such error was prejudicial will be considered further along.

The state had. the right to prove the dimensions of the berme bank and tow-path, but such proof should have been made by the original, or certified copies, of the specifications and rules adopted for the construction of the canals. An epitome prepared by the canal commission would not be competent evidence.

Before the enactment of the canal commission statute, when the state undertook to recover canal lands from one found in possession thereof, it had to prove in the first instance that the lands were formerly canal lands. Such proof showed that the state was formerly the owner in fee simple of the lands, and that fact being proven or conceded, overcame the possessory right of the defendant, and threw upon him the burden of showing that he had in some lawful manner, either by lease or purchase, acquired the lands from the state. As the statute of limitations could not run in his favor, as against the state, his continued possession could never ripen into a title, and therefore the rule that one in possession of lands can be dispossessed only by one showing a better title is not applicable, because by showing that the lands were formerly canal lands, the state shows a better title, a title that must prevail as against everybody, unless a title from the state is shown, and the burden of showing such title rests upon the defendant.

Section 218-221, Bates’ Statutes, after providing for the appointment of a canal commission, makes it the duty of such commission to “proceed to survey and determine the boundaries of all lands heretofore appropriated for canal purposes, and owned by the state, the boundaries of which are not now accurately known and of record, as already surveyed, and to mark the same by proper monuments, and to make maps and plats of all said canal lands not already platted, together with the necessary description and location of all bridges, culverts and aqueducts, and shall clearly indicate and describe in their report any part of said property that in their judgment is not necessary for canal purposes, all of which is to be preserved as hereinafter provided.”

Section 218-223, Bates’ Revised Statutes, is as follows : “Each of said commissioners is hereby authorized to issue subpoenas for, and compel the attendance of such witnesses as they, or either of them, may think necessary in fixing said boundaries, or ascertaining any fact which said commission should ascertain in the discharge of its duties; and the testimony so taken, together with said maps, plats, and field notes of such surveys, and the report of said commission as to the boundaries of the lands belonging to the state of Ohio,.with its findings in that behalf, shall be filed for preservation in the office of the board of public works; and upon any trial in any of the courts of this state, any of said findings, maps, plats, or surveys, which may in any manner relate to or having any bearing upon the subject-matter at issue, shall be taken and held to be competent (prima facie) evidence of the- truth of such findings, and the boundaries of said lands, and that the state of Ohio has the ownership of said land, or such an interest in it as may be therein stated; and a duly certified or sworn copy of such findings, plat, or map shall, when produced on said trial, have the same force and effect as the original from which it was taken would have under this section if produced on said trial.”

The court of common pleas refused to permit the findings, maps, plats and surveys so made under these sections to be introduced in evidence by the state, holding said last named section to be unconstitutional.

It will be noticed that by section 218-221, the canal commission is authorized to survey and determine the boundaries of lands appropriated for canal purposes, and owned by the state. Other lands the commission has no authority to survey or determine its boundaries. So that as to each tract of land the first question to be determined is, whether it has ever been appropriated to canal purposes and owned by the state, that is, was it heretofore canal lands? As between the state and a person found in possession of lands which the state claims as canal lands, this question must be determined by evidence in court where each party can be heard under the rules applicable for the trial and determination of disputed facts; and upon such trial the findings, maps, plats, and surveys made by the canal commission are not competent evidence. Such findings, maps, plats, and surveys can be made only as to canal lands, and to say that because they are made, that therefore the lands are canal lands, is not sound reasoning. Such findings, maps, plats, and surveys are made without notice to the party in possession, and therefore cannot bind him even prima facie. Were it otherwise the commission might make findings, maps, plats and surveys of any person’s land, and thereby prove that such lands were canal lands, and being canal lands, the fee simple title would be in the state; so that the power would be in the commission to divest a man of his title without notice or trial, and to vest the title in the state, at least prima facie. This would clearly be in conflict with that part of section nineteen of the Bill of Bights which declares that “Private property shall ever be held inviolate.”

But it is urged that the findings, maps, plats, and surveys are not conclusive, but only prima facie evidence of title in the state, and that the general assembly has power to prescribe the rules of evidence, and provide what shall make a prima facie case, and numerous authorities are cited in support of this proposition, among others Railway Company v. McCann, 54 Ohio St., 10.

That the general assembly has power to prescribe what shall constitute a prima facie case must be conceded; but that power under our constitution extends only to future transactions, and as to such the statute is read into the transaction, and forms a part of it; but as to past transactions the general assembly has no power,, by a change of the rules of evidence, to add new burdens, or impose new duties. This is forcibly illustrated by comparing the cases of Railway Company v. McCann, supra, and Railroad Company v. Kreager, 61 Ohio St., 312, with Railroad Company v. Hedges, 63 Ohio St., 339. In the two former cases the transactions occurred after the passage of the prima facie statutes, and it was correctly held that those statutes were applicable to the cases; but in the latter case the transaction occurred before the passage of the prima facie statute, and it was held that the statute was not applicable to the case, being in effect retroactive.

This court held in Miller v. Hixson, 64 Ohio St., 39, first paragraph of the syllabus, as follows: “A statute which imposes a new or additional burden, duty, obligation, or liability, as to past transactions, is retroactive, and in conflict with that part of section 28, article two of the constitution, which provides that, ‘The general assembly shall have no power to pass retroactive laws.’ ”

This section 218-223, attempts to make the findings, maps, plats', and surveys of the canal commission proof of the fact that the lands in question were canal lands, and to thereby relieve the state from proving that fact in the ordinary way aliunde such findings, and to impose upon the defendant the additional burden of overcoming the prima facie case thus made by the state. The statute therefore imposes an additional burden upon the defendant as to a past transaction, and is therefore retroactive in character and effect, and as to past transactions unconstitutional. The court therefore did not err in excluding said findings, maps, plats, and surveys.

It therefore follows that in an action by the state for the recovery of what it claims to be canal lands, it must prove that the lands in question wére heretofore canal lands, and in making such proofs it cannot be aided by the findings, maps, plats, and surveys made by the canal commission.

Aside from said findings, maps, plats, and surveys thus properly excluded, the state offered no evidence tending to prove that the basin in question had ever constituted part of the canal system of the state. Two witnesses testified that they had gone into the basin with their canal boats and loaded and unloaded them at the docks of the owners of warehouses on or near the banks, turned their boats around in the basin, etc. This user is not at all inconsistent with the basin being a private basin, used by private proprietors in connection with the canal, and for the mutual benefit of both parties, as was the case in Smith v. State, 59 Ohio St., 278.

The first answer filed in the case of Canal Elevator and Warehouse Company v. Buckingham & Mathers, stated that the state of Ohio had excavated said basin, which, if true, would go far to prove that the basin was at one time a part of the canal system of the state; but afterward an amended answer was filed in which it was stated that the basin was excavated by the adjoining proprietors for their own benefit, and it was upon this amended answer that the case was tried, and in legal effect the amended answer withdrew the statement that the state had excavated the basin. No evidence therefore is found in the record tending to prove that the basin ever constituted part of the canal system of the state, and the verdict of the jury was right notwithstanding the error of the court in admitting the record in the Warehouse case. As the case went to the jury that error was not prejudicial.

There is another reason why the state could not recover, and why the admission of that record was not prejudicial. The lease by the state to Brown & Wood, of date of April 23, 1868, for ninety-nine years renewable forever, was introduced by the state, and the record shows that Brown & Wood accepted the lease without being put into possession, and assigned the lease to the Canal Elevator and Warehouse Company. The latter company waived the right it had to insist that the state should put it into possession, and undertook by action to recover the possession itself, and for that purpose plead and relied upon the lease from the state; so that the state was treated as being out of the contest, and as having performed its duty toward its lessees as to possession, and the lessees assumed the burden of obtaining possession under the lease. Under those- circumstances the state had no further right of action to recover possession, as there could not be one action by the state and another by its lessee. As between the state and its lessees, the case therefore stands as if the state had in fact put its lessees into possession. There is nothing to show that the state has been reinvested with the right of possession, and therefore the state had no right of action to recover possession, and the verdict was on this ground also properly in favor of the defendant below.

Judgment affirmed.

Williams, C. J., Spear, Davis, Shauok and Price, JJ., concur.