author: McIlvaine, J.

text:
    Wagoner v. Loomis.
    1. Statutory provisions, whereby different classes of property are listed and valued for taxation in and by different modes and agencies, are not necessarily in conflict with the provisions of the constitution which require all property to be taxed by a uniform rule, and according to its true value in money.
    2. As a general rule, the decisions of officers and tribunals specially created and charged, in tax laws, with the duty of valuing property for taxation and equalizing such valuations, are final and conclusive.
    8. Inequalities in the valuations, made under a valid law, of property for taxation, do not constitute grounds for enjoining the tax, in the absence of fraudulent discriminations by the agents and officers charged by the law with the duty of making such valuations.

      4. Even in such case equity will not relieve a tax-payer whose property is not assessed in a greater amount than would have been imposed upon it, in case all the taxable property of the state had in fact been assessed, by a uniform rule and according to its true value in money.
    5. A petition for such injunction, which shows that the plaintiff’s property was valued only at 80 per cent, of its true value in money, while other property in the county was valued at only 40 per cent, of its value, and avers that such valuations were unequal, unjust and illegal, does not state sufficient facts.
    Error to tbe District Court of Seneca County.

      This case and Geyer v. Wagoner, reserved in the district court of Seneca county, were argued, submitted and considered together.
    In the principal case, the plaintiffs below, Loomis et al., were stockholders in the National Exchange Bank of Tiffin, Ohio, organized under the act of congress of June 3, 1864, entitled “ An act to provide a national currency,” &c., while Geyer et al., who were also plaintiffs below, were stockholders in Commercial Bank of Tiffin, Ohio, organized under an act of the general assembly of the state of Ohio, passed February 26, 1873, entitled “ An act to incorporate savings and loan associations.” But as all the questions raised in the latter case are also involved in the former, Geyer’s case will not be further noticed in this report.
    The original action was brought by Loomis and his co-stockholders in the National Exchange Bank, against Wagoner, as treasurer of Seneca county, to restrain the collection of certain taxes assessed against them, upon their shares of stock in said bank, in the year 1877. The moiety of the taxes so assessed in said year, which became due in December, was paid under protest, and this suit was brought to restrain that moiety of said levy, wMch became payable in June, 1878.
    The capital stock of said bank is divided into twelve hundred and fifty shares, of the par value of $100 each. These shares were listed upon the duplicate of said county for taxation, and were taxed at their par value. Their actual cash value at the time, however, was from $120 to $125 -each. All other property within said county, both real and personal (save bank stocks), was placed upon the duplicate for taxation, and taxed upon a valuation not exceeding forty per cent, of its real cash value. The rate of taxation for state, county,, and municipal purposes, upon the valuation of all property, for that year, was 30 6-10 mills on the dollar.
    In the original petition, it was alleged that the stock of said bank was placed upon the duplicate for taxation, at its par value, by order of the state board of equalization, organized under the statute of Ohio, for the equalization of bank stocks in the state of Ohio, and “ That by reason of the said statute of the said state of Ohio, requiring the value of said shares of stock in said bank and others, to be fixed by a state board of equalization, and not as is required by and for other personal property and real estate subject to taxation, an unjust, wrongful and illegal discrimination has been, and is made against said bank stock, and its value for taxation assessed largely in excess of what it should be, to be uniform with other species of taxable property in said Seneca county, Ohio, and the value of said bank stock lias not been compared or equalized, and is not taxed at a uniform value with other taxable property in said Seneca county, Ohio,” and “ That said tax by reason of the premises, was and is unjust, and illegal, was not uniform; that said stock was by the authority aforesaid taxed greatly in excess of any other class of property in said Seneca county, Ohio ; was not taxed in proportion to its actual value as compared with other taxable property listed for taxation in said Seneca county, Ohio.”
    In the court of common pleas, the plaintiff’s petition was dismissed, but on appeal to the district court, the defendant was “perpetually enjoined from collecting, or attempting to collect, any further sum, or part of said tax for the year 1877.”
    To reverse this decree, the present proceeding is prosecuted.

      George E. Seney, for plaintiff in error :
    The defendants in error ought not to be released from the payment of any part of the amount of the tax charged upon these bank shares. They should pay the whole tax and nothing less than the whole. They do not claim the tax to be illegal. Their only complaint is respecting the valuation of these shares. For the purpose of this argument, we must concede, that it is shown by the record that these bank shares are valued for taxation, higher, in proportion to value, than other taxable property in Tiffin. We contend that this inequality in valuation is no ground for relief, by a perpetual injunction, from the payment of any part of the tax charged upon these bank shares. We contend, for several reasons, the defendants in error have no right to such relief. The tax upon these shares is a legal tax. There is no part of it illegal. The rate of taxation for state, county and city purposes is, as we have stated, 30 6-10 mills on each dollar of valuation. The defendants in error make no question as to the legality of either of these levies. We say, therefore, that 30 6-10 mills is a legal tax upon all of the taxable property in Tiffin. The valuation put on these shares, .or the valuation put on the other taxable property in Tiffin, has nothing to do, whatever, with the legality, or illegality, of this tax. The valuations may be unequal, excessive, or oppressive, yet the tax perfectly free from any illegality. Against the payment of a legal tax the courts 'give no relief, by injunction or otherwise. No action to enjoin the collection of a legal tax can be maintained. The valuation of property for taxation is a matter with which courts have nothing to do. They may enjoin the collection of an illegal tax, but they have no power to interfere with the valuations upon the tax duplicate. These valuations are not to be equalized in courts. Errors and mistakes in valuing property for taxation, courts cannot correct. The laws of our state provide, wisely, we think, for the settlement of all matters pertaining to the valuation of property for taxation, outside of the courts. Swan & Sayler, 754, 755, § 42, 44, 45 ; 73 Ohio L. 251, §§ 3, 4. These laws establish a board of equalization for the purpose of equalizing the valuations made upon taxable property. Upon this board is conferred ample power to correct errors or mistakes in valuations—to increase, or to reduce valuations—in short, to equalize, truthfully and fairly, the valuations of all taxable property. More than this. The board has power to hear and determine all complaints respecting the valuations upon the tax duplicate. With respect to the valuing of bank shares for taxation, our laws provide that the county auditor shall value them at their true value in money. Const, art. 12, § 2; 73 Ohio L. 251. They provide for equalizing the valuation of the county auditor, with the valuations of real and other personal property, moneys and credits, subject to taxation, within the city where the bank is located. S. & S. §§ 44, 45, p. 755. This equalizing work.is done by a board composed of the county auditor and six citizens of the city, appointed by tbe city council. But this is not all. The statute creates a state board for the equalization of tbe value of bank shares. Tbis board is composed of the auditor and treasurer of state and tbe attorney-general. 73 Ohio L. 251. These boards, city and state, are authorized by tbe statute to hear and determine complaints respecting tbe valuations put upon bank shares. Tbe city board has power to equalize all valuations upon tbe tax duplicate. Tbe power of tbe state board is limited to equalizing the value of bank shares. Surely, laws with such provisions, amply protect tbe rights of taxpayers. The jurisdiction of an equalization board, in equalizing valuations for taxation, is exclusive. Cooley on Taxation, 528, 529. To secure equality in taxable valuations, tbe constitution provides, that property subject to taxation, shall be valued at its true value in money. Yaluations made by tbis rule, tbe constitution protects. Yaluations made by any other rule, tbe constitution does not protect. When made, as in the case at bar, below—far below—money value—there is a violation of tbe constitutional rule. When tbe owner of property claims under such a valuation, be violates tbis constitutional rule. We maintain, that the defendants in error violate tbis constitutional provision, in claiming under tbe valuation put upon these bank shares. We are, then, to consider tbis provision of the constitution with respect to tbe rights of tbe public, or state, upon the one band, and tbe rights of tbe individual tax-payer upon tbe other. For while tbe constitution secures to tbe tax-payer equality in valuation, at tbe same time it demands from him tbe true value of bis property for taxation. Upon tbe condition that bis property is valued for taxation at its true value in money, be bas the guaranty that all other valuations shall be made at the true value of the property. If there is a failure of tbis condition as to bis property, there is a failure also of bis right to enforce tbis guaranty. Actual value is the basis of equal valuation. It is tbe right of tbe State to have taxable property valued for taxation at its true value, and in tbis is tbe.right of equal valuation to tbe taxpayer.

      N. L. Brewer, for defendant in error:
    It is an essential and fundamental requisite in the exercise of the power of taxation that the burden should be imposed -or apportioned with all practicable equality and justice. If a certain value is fixed upon real estate for the purpose of taxation by the persons or officers charged with assessing it, say one-third its value; for cattle, horses, &c., by the persons charged with assessing it, at two-thirds of such value; for bank shares by a different board, at full value, it will readily be seen, that although the rate may be the same, yet these men do not bear an equal burden of taxation. Section 2, article XII. of our constitution provides : “ Laws shall be passed taxing by a uniform rule,” &c., all classes of property. This is imperative ; such laws shall be passed. But what is meant by “ taxing by a uniform rule f” See Bank v. Hines, 3 Ohio St. 15. But what we complain is, that all property must be put upon the same plane. If real and personal property, generally, is to be put in tie forty per cent, of its value, then the uniform rule would require bank shares to be put in at forty per cent, of their value. The defendants are without a remedy, unless it can be given them in this action. Can it be claimed that these defendants in error shall or can cause all the real estate and personal property in the state of Ohio to be raised to its full value, and thus be brought up to the plane, or upon the same ground that bank stocks are taxed ? IIow could this be accomplished ? "What power have these defendants to accomplish it? The land for the past ten years, and for the coining ten years, has been and is appraised at that value. The personal property each year is fixed at that rate throughout the state. What board now has the power to increase this, whoso aid the defendants in error invoke ? It is impossible to raise the other property. The boards have not and will not, the court cannot. But the court can say that bank shares shall be brought down to the same plane—that there must be uniformity in taxation. If it cannot be at its full value, then at its proportionate value with all other property. Here is a wrong, a great wrong—an unjust and unlawful discrimination in assessing property—an unequal bearing of the burdens of taxation. It is an injustice that contravenes the constitution of the state of Ohio, whether brought about by insufficient legislation, or design, or inadvertence. But it is urged that equity will not enjoin the collection of a tax for mere over-valuation, or illegality of tax, or where there is a remedy at law. The supreme court of the United States says: “ The statutes of Ohio (Rev. Stat. §§ 5848 eb seq.) expressly provide for an in j unction against the collection of a tax illegally assessed, as well as for an action to recover back such taxes, when paid, showing clearly an intention to authorize both remedies in such cases.” Cummings v. National Bank, 101 U. S. 153. There is no statutory authority whatever for saying that the value of bank shares ever- came before the board of equalization for the city of Tiffin. It could not be considered there ; such board had no power over it. The only one that could raise or lower the value was the auditor—he fixed its value. To him complaint was made; he acknowledged the correctness of the complaint, but afforded no relief. The county board only equalized it with other bank shares held in the county, by adding to or taking off. It had no power of comparison, could not bring it down to other property. The state board could only do the same throughout the state. It was a fraud from the beginning. The defendants had the right to rely solely upon the constitution. It will be seen from the record that putting real and personal property and bank shares in the city of Tiffin on the same basis, that of actual value, that bank shares pay nearly three times as much in proportion to their actual value; as any other class of property. These defendants have already paid one-half the tax so assessed, and more tax for that year than any other class of property in the city of Tiffin. Here is the wrong—within the broad power of a court of equity lies the remedy. If the affording of such relief strikes at our defective legislation, the sooner the better. The rule of uniformity required by the constitution being violated, the defendants in error are entitled to the relief asked. Cummings v. National Bank, 101 U. S. 153; Pelton v. National Bank, U. S. 143; Marsh v. Supervisor, 42 Wis. 502; Perry County v. Selma & C. R. R. Co., 58 Ala. 546;
      Bureau Co. v. Chicago, Burlington & Quincy R. R. Co., 44 Ill. 229; Exchange Bank v. Hines, 3 Ohio St. 1.
   McIlvaine, J.

That a gross, if not scandalous inequality exists between the burden of taxation cast upon bank shares and that imposed upon other property, in the county of Seneca, is fully established by the records before us. But whether this inequality results from incapacity, or a more reprehensible trait in the character of the agents and officers of the law, upon whom are imposed the duties of listing and valuing property for taxation, is not disclosed. That the blame attaches to the officers of the law, and not to the law itself, appears to us very plainly.

The constitution provides (art. 12, § 2), “Laws shall be passed, taxing 'by a uniform rule, all moneys, credits, investments in bonds, stocks, and joint stock companies or otherwise; ;and also all real and personal property, according to its true value in money,” &c. And article 12, section 3, provides, “ The general assembly shall provide by law, for taxing'the notes and bills discounted or purchased, moneys loaned, and all other property, effects, or dues, of every description (without deduction) of all banks, now existing or hereafter created, and of all bankers, so that all property employed in banking shall always bear a burden of taxation equal to that imposed on the property of individuals.” Thus it appears, as far as the constitution is involved, that exact equality of burden is imposed upon all taxable property, whether owned by banks or bankers, or other persons; and further, that all property should be taxed according to its true value in money.

In obedience to these requirements of the constitution, the legislature has assumed to pass laws for the listing and taxing of all the property subject to taxation in the state, whether owned by banks or bankers or other persons, by a uniform j’ule and according to its true value in money. If the laws thus passed were faithfully executed, we have no doubt that the equality of burden, so positively enjoined by the constitution, would be substantially accomplished; and more than this should not be expected, as, from the frailty of human judgment, exact equality is not likely to be ever attained.

True, the mode and agencies employed, under the statute, for listing, valuing and equalizing shares of bank stocks, are not the same as those employed for the like as to other property. I shall not enter into details as to these matters of difference ; but it will suffice to say, that real property is valued for taxation decennially by township appraisers, whose action is supervised by a county board.of equalization, and finally, as between counties, by a state board of equalization composed of the auditor of state and a member from each senatorial district. Personal property generally is .annually listed and valued by the owner under oath. Some articles may be exhibited to the assessor, who is required to value the same. The returns of assessors are equalized by county or city boards of equalization. Shares of bank stock are listed, valued and equalized thus: The president and cashier of every bank is required to return under oath to the auditor of the county in which the bank is located, annually, the names and residences of all stockholders, the number of shares held by each, the actual value in money of such shares, together with a description of all real estate owned by the bank. Thereupon the auditor is required to deduct from the total actual value of all the shares, the appraised value of the real estate, and to place on the duplicate the remainder of the total value of the shares, in the names of the owners thereof, in amounts proportioned to the number of shares owned by each. The valuations of bank shares so fixed by county auditors are supervised by a state board of equalization, composed of the auditor of state, treasurer of state and the attorney-general, who are authorized to hear complaints and equalize the valuation of the shares so fixed, <£by adding to the valuation of the shares of any such banks or banking associations as in their opinion are assessed below their value in money, or by reducing the valuation of the shares of any such banks or banking associations as in their opinion have been assessed above their value in money.”

Now, the point is made, as we understand the claim, that the inequality complained of in the plaintiffs petition was the result of this diversity in the- modes employed by legislation for fixing the valuations for taxation, of the different species of property. That legislation which leads to such results i? obnoxious to the principles of the constitution, and, therefore, a tax levied under it is illegal and void.

"We wholly dissent from the first proposition. The inequality complained of cannot, in any just sense, be attributed to the state of legislation on the subject. "Whether it was wise to adopt different modes and agencies for determining the value of taxable property, we need not consider. Much might be said in its favor. But we can, and do affirm, with the utmost confidence, that an honest and intelligent discharge of duty by those intrusted with the execution of the respective modes provided by law, would accomplish all that was intended by the constitution. A faithful execution of the different provisions of the statutes would place upon the duplicate for taxation all the taxable property of the state, whether bank stocks or other personal property or real estate, according to its true value in money; and the equality required by the constitution has no other test. There is nothing in the constitution which requires property to be taxed according to the same per cent, of its true value in money, save only the one hundred per cent. The difficulty, therefore, in this case is not attributable to the laws, but to a failure to execute them in conformity to their true meaning and intent.

Confessedly, in this case, the property of the plaintiffs below, their bank shares, was valued for taxation at only eighty per cent, of its true value in money—plus the value of the real estate-owned by the bank. No word of complaint is made against the officers of the law for violating their sworn duty in placing this property on the duplicate at its par value, instead of its true value in money (as the constitution required), which was one hundred and twenty-five per cent, of its par value. The complaint, in substance, is, that they acted unlawfully and unjustly towards the plaintiffs in valuing their property for taxation, at more than forty per cent, of its true value in money. This greater wrong, the plaintiffs below would justify on the ground that other property in the county was not returned for taxation at more than forty per cent, of its true value in money.

If, upon this ground alone, a court of equity can say that the valuation of the plaintiffs’ property must be reduced from eighty to forty per cent, of its true value in money, because other property in Seneca county lias been taxed upon only forty per cent, of its value, by what name shall we call the wrong that will be perpetrated on the other eighty-seven counties of the state, where all property, including shares of bank stock, has been assessed according to its true value in money, and upon which the rate required for state purposes has been paid ?

It must here be remarked, that in the petition of plaintiffs below, no fraud or conspiracy, or other unfaithfulness, has been charged against the officers and agents of the law, who placed the taxable property of Seneca county, other than bank stocks, upon the duplicate at a valuation of only forty per cent, of its true value. If it be possible that such a thing could have occurred through mistake or error of judgment, we are bound to say that such was the case; and such a thing is possible.

Where then, lies the equity of this case? While it cannot be said that the plaintiffs below should be compelled to pay more taxes in proportion to the value of their property, than is required of other taxpayers of the county; it must be affirmed that other taxpayers should pay as much as is required of the plaintiffs, in proportion to the values of their respective properties, and that is to say, until all have paid the required rate, upon the full and true value of their respective properties. If either be relieved from any portion of the burden according to this standard, it must be on the ground of some accident, mistake or error of judgment, in determining the values of their property, but not upon any ground of right. And if for such reasons the plaintiffs below, to a certain extent, and the other taxpayers of Seneca county, to a greater extent, escape the payment of their just and equitable share of the public burdens, surely equity, on the mere ground of inequality as between them, will not interfere to restrain the collection of an excess arising upon such inequality, to the detriment and injury of other taxpayers throughout the state, whose property is subject to the same levies, and has been assessed in accordance with the very letter and spirit of the constitution and laws of the state.

Our statutes have made ample provision for the coi’rection of mistakes and errors of judgment, committed by those intrusted, in the first instance, with the fixing of values upon taxable property. Even unjust and corrupt discrimination can be relieved against, in the special tribunals provided by the statute, for the equalization of values. As a general rule, the decisions of these boards must be held to be final and conclusive. To these boards, and not to the courts, must complaints as to inequalities in valuations be preferred. True, the attention of the auditor was called to the fact, that the valuation of these bank shares was higher in proportion to their true value, than the valuations of other property in the county; but there is nothing in the record to lead us to believe that the annual city and county boards of equalization would not, if complaint had been made, have advanced the valuation of all other property in the county, to its true value’ in money. The opportunity provided by law for the correction of the inequality complained of, was omitted. We cannot correct it now. And if for such reasons, relief can be given to the plaintiff, we can see no reason why the like relief should not be given to every taxpayer of the state, whose property has been assessed on more than forty per cent. of. its value, even to the destruction of the revenues of the state.

What relief a court of equity would give in a case of fraudulent conspiracy, or combination or rule adopted by those whose duty it is to fix the taxable values of property, for the purpose of imposing upon some property, or class of property, more than its just share of the public burdens, we need not now inquire. No such combination or rule of action is shown in the case before us. Hence, the doctrine announced by the supreme court of the United States in Pelton v. Bank, 101 U. S. 143 ; and Cummings v. Bank, 103 U. S. 153, does not apply in this case. But even in such cases, equity will not afford relief to a complainant who cannot show that the burden imposed on him is greater than it would have been, if the laws had been faithfully executed, by taxing all property by a uniform rule, and according to its true value in money; and also, that the tribunals provided in the system of taxation, for redress against inequalities, had been appealed to in vain.

Ve are, however, entirely content to approve and follow a later decision of the supreme court of the United States (National Bank v. Kimball, 103 U. S. 732), in which it was held that a bill to restrain the collection of a state tax upon the shares of a national bank, is bad on demurrer, when it does not appear that there is any statutory discrimination against them, or that they, under any rule established by the assessing officers, are rated higher in proportion to their actual value than other moneyed capital; that averments that the assessments were unequal and partial, are not sufficient.

Judgment reversed and action dismissed. ,


source: Caselaw Access Project

author: White, J.

license: Public Domain

text:
    Williams v. Pomeroy Coal Company.
    The defendant, the lessee of a coal mine, worked over onto the land of an adjoining proprietor, and after taking out all the coal from the demised premises, surrendered his lease. The plaintiff having subsequently purchased the adjoining lands, in mining thereon, in ignorance of the overworking of the defendant, struck such working, whereby the water from the abandoned mine flooded the plaintiff’s mine. In an action by the plaintiff against the lessee to recover the damages caused by the flooding—Held:
    1. That the cause of action against the defendant is for the trespass in working over his line, and that he is not chargeable with creating and maintaining a nuisance.
    2. In the application of the statute of limitations there is no distinction between trespasses under ground and upon the surface; nor whether the cause of action is known or unknown to the plaintiff within the time limited by the statute.
    3. The bar to a recovery in an action for a trespass includes all the consequences resulting from such trespass.
    Error to tbe District Court of Meigs County.

      Tlie original action was commenced by Ebinezer Williams, plaintiff in error, against the Pomeroy Coal Company, the defendant in error, February, 1813, in tlie common pleas court of Meigs county.
    The facts as they appear in the record are substantially as follows:
    Prior to January 30, 1868, one Nahum Ward owned in fee lot 1223, on the Ohio river, in Meigs county, and at the same time one Philip Ilondesheldt was the owner in fee of lot 1222, and V. 13. Ilorton was the owner in fee of lot 301, and the latter had a lease from Ilondesheldt granting the right to mine all the coal under the south half of lot 1222. On August 10, 1858, Mr. Horton conveyed to the Pomeroy Coal Company, by liis lease of that date duly executed, his right to' mine and take away the coal under said two tracts of land. By the terms of said lease the Pomeroy Coal Company bound itself to “ quit and surrender the premises ” at the end of ten years, to wit, by August 10, 1868. The defendant entered upon the premises, and as early as 1862 had mined all the available coal thereon, and did, in that year, abandon the said lease, with the consent of the said Horton, and turned over to him the abandoned mines on said premises. The defendants, while excava-' ting the coal on lot 1222, mined over on to the adjoining lot 1223, from thirty-six to thirty-nine feet. In 1864 the plaintiff bought lot 1223 of said Nahum Ward, and began operating the mines thereon. In June, 1868, the workmen engaged in said plaintiff’s mine tapped the water which had accumulated in the abandoned mine, and it flooded the mine of plaintiff.
    The working over on lot 1223 was done as early as 1861, but was not known to the plaintiff until the water flowed into his mine as above stated.
    On the trial the plaintiff, among other things, requested the court to charge the jury as follows :
    “ That if the jury find that the water from the mine of the defendant commenced to flow into the mine of the plaintiff more than four years before the commencement of this action, and has continued to flow from that time up to the present time, and the plaintiff has continually from that time to this been compelled to pump tlie same out of bis mine at a great expense in order to enable bim to work bis own mine, then be is entitled to recover all damages be has sustained witbin four years before tbe commencement of tliis action.”
    Tin's instruction tbe court refused to give, but instructed tbe jury, in substance, that if tbe flowage of water from tbe old mine of tbe defendant into tbe mine of tbe plaintiff commenced more than four years before tbe bringing of tbe suit, tbe right of action was barred by tbe statute of limitations.
    Tbe jury returned a verdict for tbe defendant, on which judgment was rendered. Tbe district court, on error, affirmed tbe judgment.
    Tbe present petition in error is prosecuted to reverse these judgments.

      Simeon Nash, and J. J. Glidden, of O’ Connor, Glidden & Burgoyne, for plaintiff in error:
    There was no damage claimed in this action, occurring from this flow of water, until tbe flow began. An action of trespass could only have been brought for tbe trespass and value of coals removed; these consequential damages bad not then occurred, lienee tbe owner of tbe land could not have recovered for tbe damages now sued for. Here, tbe cause of action arises, not directly from tbe trespass, but from the fact that tbe trespass was unknown by tbe plaintiff, and be worked bis mine as though defendant bad complied with tbe law in digging up to tbe line and not over it. Tbe flow of tbe water from tbe old abandoned mine of defendant was a continuing nuisance. Bainbridge on Mines, 411; Roberts v. Nead, 16 East, 215; Gillon v. Boddington, 1 C. & P. 541; Sutton v. Clarke, 6 Taunt, 29 ; Lloyd v. Wigney, 6 Bing. 489 ; Bonomie v. Backhouse, El. B. & El. 622; s. c., H. L. Ca. 503; 101 Eng. C. L. 970; Rylands v. Fletcher, L. R., 3 H. L. 330, 339, 340; Smith v. Kenrick, 7 C. B. 564; Smith v. Fletcher, L. R. 7 Exch. 305 ; s. c., 3 Eng. R. by Moak, 305 ; Crampton v. Lea, L. R. 1874, ch. 225 ; Angell on Water-courses, 378, § 335 ; 17 Johns. 306 ; 7 Pick. 76; 3 Hill, 531; 3 Taunt. 99; 30 Ala. 319; Wood on Nuisances, 12, 121; Tuthill v. Scott, 43 Vt. 525 ; Beard v. Murphy, 37 Vt. 104 ; Miller v. Lauback, 47 Penn. St. 155; Bellows v. Sackett, 15 Barb. (N. Y.) 96; Tootle v. Clifton, 22 Ohio St. 247; Martin v. Riddle, 26 Penn. St. 415 ; Lammier v. Francis, 23 Mo. 181; Earle v. De Hart, 1 Beasley (N. J.) 280; Ennor v. Barwell, 2 Griff. 410 ; Kauffmann v. Geismeier, 26 Penn. St. 407; Lattimore v. Davis, 14 La. 161; Curtis v. Erie R. R. Co., 14 Allen, 55 ; Laney v. Jasper, 39 Ill. 54 ; Adams v. Walker, 34 Conn. 446; Gilman v. Railroad Co., 40 Ill. 484; Sweet v. Cutts, 50 N. H. 439; Goodalers v. Tuttle, 29 N. Y. 467; Hayes v. Hinkleman, 68 Penn. St. 324.
    He who has been the author of a nuisance is answerable for all the consequences thereof. Angelí on Water-courses, § 402; Wagoner v. Jermanie, 3 Denio, 206; Staples v. Spring, 10 Mass. 72 ; Beidleman v. Foulke, 5 Watts, 308 ; Pillsbury v. Moore, 44 Maine, 156; 3 Blacks. Comm. 220; Dorman v. Ames, 12 Minn. 451; Brown v. Woodworth, 5 Barb. 550 ; Pickard v. Collins, 23 Barb. (N. Y.) 444; Anderson v. Dickie, 26 How. (N. Y.) 105; Smith v. Elliott, 9 Penn. St. 345; Fish v. Dodge, 4 Denio (N. Y.) 311; Thompson v. Gibson, 7 Mees. & W. 456.
    But it is said the remedy is trespass and the action is barred by the statute of limitations within four years from the date of the trespass, and this without regard to whether plaintiff had knowledge of the trespass or not. The action that is barred in four years is trespass—not case. The damage is continuous, and a cause of action arises in case for each resultant damage. Harsh v. Butler, Wright, 99 ; Thayer v. Brook, 17 Ohio, 489 ; Railroad Co. v. Comers Greene Co., 31 Ohio St. 338.
    The rule we contend for as applicable to this case is stated in Angelí on Limitations, § 300. Hodges v. Hodges, 5 Met. 205; Alexander v. Kerr, 2 Rawle, 83; 3 Rawle, 250 ; 3 Denio, 306; 1 N. J. 469; 2 N. J. 243; 52 Barb. 257; 3 Blacks. Comm. 220.
    When there is a consequential damage, case may be maintained, though the original act was a trespass. Harris v. Ryding, 5 Mees. & W. 60; Roberts v. Reade, 16 East, 215 ;
      Raine v. Alderson, 4 Bing. (N. C.) 702; Mills v. Ody, 1 Mees. & W. 452; Wood on Nuisances, 116, 119; 30 L. J. C. P. 305; 12 Mod. 518 ; 32 N. H. 90.

      Grosvenor & Vorhes and S. D. Horton, for defendant in error:
    Has the plaintiff, upon the pleadings and the evidence, a right of recovery? We answer no, and for reasons say: 1. More than four years elapsed between the overworking complained of -and the bringing of this action. 2. More than four years elapsed after the overflow of the plaintiff’s mine, to as great an extent as it ever did, and before this suit was begun. 3. More than four years elapsed after the full extent of the injury was known to plaintiff before he began this action. 4. The plaintiff did not own the mine to which the injury was done at the time the wnong, if any was committed, Was complete; and his subsequent purchase did not carry with it the right to sue for this alleged injury. 5. There is here no nuisance or continuing cause of action, for the reasons: a. The injury came of a trespass committed on the land of another, to wit: Nahum Ward, by the defendant, and was complete prior to 1862, and before the plaintiff bought the premises; and, b. “ No one can be charged as a continuing wrong-doer who has not the right and is not under the duty of terminating that which causes injury.” Kansas Pacific Railway v. Mihlman, 17 Kansas, 224. c. When the plaintiff discovered the flow of water in 1868 it became his duty to “make reasonable efforts to prevent an increase of the injury,” and having failed to do so for more than four years, he cannot recover for any continuing or increased injury. Ibid. The conduct of the defendant, and of which this plaintiff complains, was the committing of a trespass, and not the creating or maintaining of a nuisance. Bainbridge on M. & M. 444, and cases cited. The statute of limitations for actions for trespass applies.' Ibid. “ The only ground for excluding or extending the statute would be fraud and mistake. It has been distinctly held, at law, that fraud (even) will not prevent the statute from running.” Imperial Gas Co. v. London Gas Co., 6 Exch. 39 ; Blair v. Bromley, 5 Hare, 542; Bainbridge on M. & M. 411; 3 B. & Ald. 628 ; Nicklin v. Williams, L. J. N. S. Exch. 335.
   White, J.

Tbe decision of tbis case depends upon what constituted tbe cause of action against tbe defendant, and when it accrued. Tbe claim of tbe plaintiff is tbat tbe cause of action consists of a private nuisance caused by tbe excavation made by tbe defendant on lot 1223 when removing tbe coal under bis lease from tbe south half of lot 1222, and tbat tbe cause of action is á continuing one and first accrued when tbe water from tbe abandoned mine flowed over into tbe mine of tbe plaintiff. On tbe other hand, tbe claim of tbe defendant is tbat tbe cause of action consisted of tbe trespass committed in making tbe excavation, and was completed when tbe work was done and tbe mine abandoned. In tbe first place, it may be observed tbat tbis is not a case where tbe defendant has wrongfully entered upon tbe lands of tbe plaintiff and erected and maintained structures thereon. Nor is it a ease where structures have been erected and maintained on tbe lands of tbe defendant or of another, to tbe nuisance or injury of tbe plaintiff’s premises. In these cases tbe wrong may, by tbe lapse of time, ripen into a right under tbe statute of limitations or by prescription. In speaking to this point in Clegg v. Dearden, 12 Ad. & Ellis, N. S. 601, Lord Denman uses tbe following language: “ Tbe gist of tbe action, as stated in tbe declaration, is tbe keeping open and unfilled up an aperture and excavation made by tbe defendant into tbe plaintiff’s mine. By tbe custom, tbe defendant was entitled to excavate up to the boundary of bis mine, without leaving any barrier, and tbe cause of action, therefore, is tbe not filling up the excavation made by him on tbe plaintiffs’ side of tbe boundary and within their mine. It is not, as in tbe case of Holmes v. Wilson, 10 A. & E. 503, a continuing of something wrongfully placed by the defendant upon tbe premises of tbe plaintiff; nor is it a continuing of something placed upon tbe land of a third person to tbe nuisance of tbe plaintiff, as in tbe case of Thompson v. Gibson, 7 Mees. & W. 456. There is a legal obligation to discontinue a trespass or remove a nuisance; but no such obligation upon a trespasser to replace what he has pulled down or destroyed upon the land of another, though he is liable in an action of trespass to compensate in damage for the loss sustained. The defendant, having made an excavation and aperture in the plaintiff’s land, was liable to an action of trespass ; but no cause of action arises from his omitting to reenter the plaintiff’s land and fill up the excavation. Such an omission is neither a continuation of a trespass, nor a nuisance ; nor is it a breach of any legal duty.”

• The defendant in the present case had no estate or interest in lot 1222 further than the right to mine the coal therefrom. This he accomplished in 1862, and surrendered the premises. He had no authority from the owner of the fee, nor from Horton, his immediate lessor, to mine over into lot 1223 ; and at the time of the fiowage of water from the abandoned mine into the mine of the plaintiff, he had for more than five years ceased to have any interest in lot 1222 or any right of entry thereon.

If the claim of the defendant as to what constituted the cause of action is correct, the action clearly cannot be maintained. 1. For the reason that at the time of the commission of the trespass, the plaintiff was not the owner of the land upon which the trespass was committed; ■ and, 2, if he had been such owner, the action would be barred by the statute of limitations.

There is no distinction in the application of the statute of limitations between trespasses under ground and upon the surface ; nor whether the cause of action is known or unknown to the plaintiff within the time limited by the statute. Hawk v. Minnich, 19 Ohio St. 466 ; Hunter v. Gibbons, 1 Hurl. & Nor. 459.

The question therefore is, whether the defendant, in addition to the liability for the trespass, is also liable for creating and continuing a nuisance. If he is so liable a recovery for the trespass would be no bar to subsequent actions for continuing (he nuisance.

In Stephen’s Commentaries (vol. 3, 499), a private nuisance is defined to be anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another, and not amounting to a trespass.”

Here the only thing done by the defendant was the mating of the excavation upon the plaintiff’s land, which did amount to a trespass.

Plaintiff’s counsel claim that the action is brought to recover consequential damages resulting from the wrongful acts of the defendant. Be it so. But with what wrongful acts is the defendant chargeable except those constituting the trespass ? We see none. And a recovery for the trespass or the bar of an action brought for it, is a bar to a recovery for the consequences resulting from such trespass. True, this is not the ground upon which the jury were charged, but the error in the charge was in favor of the plaintiff, and is no ground for reversal.

Judgment affirmed.