author: Minshall, J.

text:
    Cincinnati et al. v. Davis et al.

      Municipal corporation — Street assessment — Resolutions of city authority — Declaring alley improvement by proper board — Effect of subsequent amendment conferring conflicting authority for improvement upon another board.

    Where a resolution, declaring the necessity of the improvement of an alley, is made by the proper board of a city, at the time the resolution is adopted, the subsequent amendment of the law, whereby the making of such improvements as to alleys of a certain width, is conferred on another board, does not work a discontinuance of the pending proceeding, though it be of such an alley ; and the improvement should be prosecuted to completion by the board that adopted tbe resolution, unless otherwise expressly provided in the amendment. Cincinnati v. Seasongood, 46 Ohio St., 296, distinguished.
    (Decided March 29, 1898.)
    Error to the Circuit Court of Hamilton county.

      Ellis G. Kinkead and George H. Kattenhorn, Corporation Counsel, for plaintiffs in error.

      The proceedings of the boards and officers of the city in passing, the resolution and ordinance for this improvement were regular and valid. This act does not, by implication, abridge the power of the board of legislation.
    Instances are not wanting of different acts for the attainment of the same end, with the option reserved to the legal authorities to determine under which they will proceed. Endlich on Inter, of Stat., section 220; Durby v. Bury GommrsL. R. 4 Ex., 222; Erie v. Bootz, 72 Pa. St., 196; McPate’s App., 105 Pa. St., 323, 326; Maple Lake v. Wright Co., 12 Minn., 403.
    Not as authority for this court, but as indicating the trend of Ohio decisions, we refer to the case of Quigly v. State, 5 C. C., 638 ; 3 Giro. Dec., 310.
    A question as to the jurisdiction of courts in settlement of estates arose in the case of the Heirs of Biodlow v. Johnson, 3 Ohio, 541; Dodge v. Gridley, 10 Ohio, 174; Badabaugh v. Shelley, 6 Ohio St., 307; Buckingham v. B. B. Company, 10 Ohio St., 25.
    It is submitted that in the absence of express intention upon the part of the legislature there can be, in the case at bar, no repeal by implication of the jurisdiction of the board of legislation in che making of these improvements; that the purpose of the legislature was to provide an additional mode of procedure alone.
    'There were no irregularities such as should reduce the amount of the assessment. The owners of property abutting a thoroughfare, in making improvements, must use every effort to ascertain the established grade, or use caution to make their improvements in reasonable anticipation of what the grade may be. They assume the risk of all damages which may result from the subsequent establishment of a grade and the improvement of a street, if reasonably and properly done. City of Cincinnati v. Penny, 21 Ohio St., 499; City of Akron v. The Chamberlain Co., 34 Ohio St., 328; Hickox v. City of Cleveland, 8 Ohio, 543; Scovill v. Geddinqs, 7 Ohio, 562; Crawford v. Delaw cure, 7 Ohio St., 459.

      Theodore Ilorstman and John V. Ca/m/pbell. for defendants in error.
    On behalf of defendants in error, who were plaintiffs below, it is contended:
    1. That the proceedings for said improvement are invalid because the authority to pass the necessary legislation was, by reason of the amendment of the law, (90 O. L., 258) vested in the board of administration, and not in the board of legislation.
    2. If the proceedings were valid, the assessment is excessive, because it includes an item of three hundred dollars for advertising, whereas the actual cost for advertising, was only one hundred and seventy-one dollars; and, further, that the actual cost of advertising is not a valid charge in so far as it includes any charge for German advertisement, or for advertising in more than the number of newspapers authorized by law.
    An omission to pass the resolution declaring it necessary to improve, has been fatal to an assessment. Walker v. Potter, 18 Ohio St., 85; Stephen, Treas., v. Daniel, 27 Ohio St., 527.
    The rights and liabilities of the parties are fixed by the ordinance to improve. Cincinnati v. Season-good, 46 Ohio St., 296; Shehan v. Cincinnati, 21 Bull..,' 212.

      Ordinances being among the most important and solemn acts of a corporation, it is essential to their validity that they shall be adopted by the proper body, duly assembled, and in the manner prescribed by the charter. Dillon Mun. Corp., 309; Tiedeman Mun. Corp., 148.
    • A general act will be repealed pro tanto by a subsequent special act when the two acts cannot stand together. 23 Encyclopedia of Law, 430.
    If the special statute is later, the enactment operates necessarily, to restrict the effect of the general act from which it differs. Sutherland Statutory Construction, section 158.
    Where there has been a general enactment covering any subject in general terms which included a particular case, and a subsequent enactment makes a rule for that particular case, the latter is deemed to be all that the legislature finally intended for the regulation of that case. Excelsior Petroleum Co. v. Lacey, 63 N. Y., 422; Isham v. Pennington Lis. Co., 19 Vt., 240.
    When all the essential provisions of a general act of the assembly are supplied by a later special act, the former will be deemed to have been repealed by implication, although there be no repealing clause. In re Martz Election, 110 Pa. St., 502.
    We contend that the “Alley Act,” applying to Cincinnati alone, by implication, and also by express language as to the “exclusive” authority, repeals general law, and that the assessment must therefore fail. The Alley Act “revises the whole subject of the improvement of alleys under the general law, and is intended as a substitution for it, and not as furnishing an additional or cumulative remedy.” Lorain, Plank Road Co. v. Cotton,
      12 Ohio St., 263; Shelby Co. v. Fregó, 26 Ohio St., 488; Moore v. Vance, 1 Ohio, 1.
    A statute, general in its terms, and without negative words, will not be construed to repeal by implication the particular provisions of a former one, which are special in their application to a particular case, or class of eases, unless the repugnancy be so glaring and irreconcilable, that the legislative intention to repeal is evident. Robbins v. State, 8 Ohio St., 131; Seifried v. Com., 101 Pa. St., 200.
    Rarely, if ever, does a case arise when it can justly be held that a general statute repeals a local act by mere implication. Malloy v. Reinhard, 115 Pa. St., 25.
    The repeal of a special statute must be either express, or the manifestation of the legislative intent to repeal must be so clear as to be equivalent to an express direction. Coni’’rs v, Richmond, etc., R. Co., 81 Va., 355.
    The rule is different where the special act is later.
   Minshall, J.

The suit below was commenced in the court of common pleas by James T. Davis and Alexander Slocum against the city of Cincinnati and its auditor, D. W. Brown, to enjoin the collection of certain assessments for the improvement of an alley, that had been made on the lots of each, abutting lengthwise on the alley. Prom the judgment of the common pleas an appeal was taken to the circuit court.

The principal objection to the assessments was that the ordinance for the improvement was not made by the proper municipal body; it was made by the board of legislation, when, as claimed, it should have been made by the board of administration, in accordance with, an act of the legislature, giving jurisdiction to the board of administration in cities of the first grade of the first class, to improve all alleys of the width of 20 feet and less, passed March 30, 1893 (90 Local Laws, 258). It was submitted to the circuit court on an agreed statement of the facts, which is as follows:

It is agreed that the city of Cincinnati is a municipal corporation of the first grade of the first class under the laws of Ohio, and that Daniel W. Brown is its auditor; that plaintiffs, James T. Davis and Alexander Slocum, respectively own the lots described in the petition, one fronting eighteen feet and the other fronting one hundred and twenty-five feet on Baltzer alley, between Pope alley and Knowlton street; that about November 10, 1893, the city of Cincinnati passed an ordinance levying an assessment of $3.5326 per front foot on each front foot of the several lots of land abutting on Baltzer alley from Pope alley to Knowlton street, to pay the costs and expenses of an improvement by grading and paving with brick of Baltzer alley between said termini; that the entire length of said improvement is about four hundred and fifty feet; that said alley was improved with brick, after being properly graded; that before said improvement said alley had never been made and no grade had been established for the same; that a retaining wall had been built upon the line of the property owned by another person abutting said alley between said termini for a distance of one hundred and twenty feet at a cost of about $100, which was paid by the city, but not charged in the assessment for the improvement of said alley, but was paid out of a separate and distinct fund, and said Wall was built to protect certain improvements made upon said property; that in the opinion of the proper authorities of the city no retaining wall was necessary upon the property abutting said alley owned by plaintiffs; that the cut in front of the property of plaintiffs was about two feet; that the improvements upon the property of plaintiffs were built with reference to the traveled surface of said alley, as it had existed before said improvement, for a period of about twenty-nine years; that the grade of Baltzer alley was established by ordinance February 6, 1891; that the improvements upon the lot of plaintiff, Davis, consisted of a one-story frame stable, at the corner of Baltzer and Kendall alleys, and built in 1892; that said stable had no foundation, but was built upon a sill resting upon stones under the corners thereof, and that there was no other improvement upon said Davis’s lot abutting said Baltzer alley; that the improvements upon the lot of the plaintiff, Slocum, were a house on the line of said alley and a one-story frame stable, out-houses and fences; that both of said plaintiffs were duly served with notice of the resolution to improve said alley as passed by said city, but that neither of said plaintiffs filed any claim for damages; that Baltzer alley is twelve feet in width; that the resolution to improve said Baltzer alley was passed by the board of legislation, January 13, 1893, and declared, among other things, that it was “necessary to improve Baltzer alley by grading, setting curbs, paving the roadway with brick and constructing the necessary culverts, drains and retaining walls;” that said resolution was recommended by the board of administration to the board of legislation, but was not passed by the board of administration; that the ordinance to improve Baltzer alley, between Pope alley and Knowlton street, was passed by the board of legislation of the city of Cincinnati on June 23, 1893, and was not passed by the board of administration; that the ordinance to improve contained the same language as the resolution in so far as it described the character of the improvement; that after the passage of the resolution to improve, a notice, of which the following is a copy, was served, within twenty days thereafter, upon the plaintiffs and other property owners: (Omitted as not material.)

That the actual cost for advertising paid by the city in connection with the improvement of Baltzer alley, from Pope alley to Knowlton street, consisted of the following items, and no others: (Omitted as not material.)

That the final estimate, upon which the assessment was figured, included an item of three hundred dollars for advertising, being the estimated cost of advertising said proceedings for said improvement.

It is further agreed that the foregoing are all the facts, and that such final judgment may be entered herein as is warranted by the law upon the whole record and the agreed statement of facts; but the same may be prosecuted by either party in the higher courts for error.

(Signed by counsel.)

On this statement of facts, the court rendered, judgment in favor of the plaintiffs, enjoining the collection of the assessments. The city excepted, and prosecutes error for a reversal of the judgment and a judgment in its favor.

The resolution declaring the necessity of the improvement was 'passed by the board of legislation Jan. 13, 1893, at which, time it was the proper and only board that could pass such resolution. Notice of this resolution was properly served upon the plaintiffs and other property owners upon the alley as required by law. By its resolution and the notices served on the property owners, the proceeding for the improvement of the alley named was commenced and the board of legislation acquired jurisdiction of the proceeding for the construction of the improvement. Welker v. Potter, 18 Ohio St., 85. It might subsequently have been dismissed by the board or the parties interested, but until dismissed or put an end to by the board or the parties, the proceeding, and the board’s jurisdiction over the subject-matter continued. In this ease the proceeding was not dismissed, on the contrary it progressed before the board of legislation to its final completion, without objection from anybody until the assessment was placed on the duplicate for collection. So that at the passage of the law, March 30, 1893, conferring on the board of administration the improvement of alleys of the width of twenty feet or less, the improvement was a pending proceeding-. The question then arises whether the assessments are void, because the ordinance to improve adopted June 20,1893, was adopted by the board of legislation, instead of by the board of administration; or, whether, by the amendment of March 30, 1893, the proceeding did not abate for the want of jurisdiction in the board, before which it was commenced, to make it? We think not. The act of March 30, 1893, contained no express provision making it apply to pending proceedings. Hence, as we think, this proceeding was not discontinued thereby, and the board of legislation was authorized under section 79, Revised Statutes, to proceed with and complete the improvement as it did. This section relates to no particular subject of legislation. It relates to the operation of statutes in general. The section reads as follows:

“Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions or proceedings, civil or criminal, and where the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed; nor shall any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.”

The section as first adopted did not contain the second clause as to repeals or amendments affecting the remedy; but as there was a disposition to hold that it did not apply to such changes in the law, .this clause was inserted, so that a repeal or amendment affecting the remedy should not apply to pending proceedings, “unless so expressed;” so that the amendment of March 30, 1893, does not apply to this case, if it is within the provisions of the above section, whether it relates to the remedy or not, for the amendment .contains no express provision to that effect. There seems to be the same reason for applying the provisions of this section to a pending proceeding for the improvement of a road or street that there is for its application to a. pending proceeding in the nature of a suit, where the change in the law simply applies to the mode of procedure. In either case it must be assumed that the proceeding was commenced with reference to the provisions of the existing law; and it is neither wise nor just, as a general rule, to disappoint the parties in this regard by a change of the law, and, as must frequently happen, after a considerable amount of costs and expenses have been incurred. The section announces the permanent policy of the legislature as to the operation of its statutes; and, where there are, in its opinion, sufficient reasons for a departure from this policy in a particular instance, it has declared that the departure shall be expressed in the amendatory statute. In so far as Commissioners v. Green, 40 Ohio St., 318, conflicts with this view it is not approved. In Raymond v. Cleveland, 42 Ohio St., 522, a more correct view is taken of a clause similar to the provisions of section 79, Revised Statutes. There under the Municipal Code of 1869, and its amendments, proceedings had been commenced for the improvement of a street to be paid for by assessments on the property benefited. An assessment was made and set aside by the courts for irregularity. Subsequently, under provisions of the code in force when the proceeding was commenced, a reassessment was made; but the provisions of the code in regard to a reassessment had been previously repealed by the revision of 1878; and it was claimed for this reason that the reassessment was void. The revision, however, contained the following saving clause: “No suit, prosecution or proceeding shall be in any manner affected by such change, but the same shall stand or proceed as if such change had not been made.” It was argued that this provision related only to proceedings in the nature of actions and the like, and did not extend to the right to make a reassessment authorized only by the law that had been repealed. But, Okey, J., in delivering the opinion said: “We are unwilling to place any such limitation upon the provision. It is remedial and no violence is done to the language by holding that it preserves the right to make this reassessment under the municipal code of 1869.”

But it is claimed, however, that the case of Seasongood v. Cincinnati, 46 Ohio St., 292, requires a different ruling. We do not think so. There, after the adoption of the ordinance to improve, a change was made, not in the mode of procedure but in the measure of the assessment that might be made on the lots of such owners as abutted lengthwise on the improvement. By the statute in force at the adoption of the ordinance such lots were to be assessed according to the average depth of lots in the neighborhood. By an amendment subsequent to the adoption of the ordinance, this reasonable provision was stricken out, and such lots were required to be assessed for the full number of feet they abutted on the improvement. It was claimed that these lots should be assessed according to the amendment. But the court, observing that the parties had acted with reference to the law in force at the time the improvement ordinancé was adopted, held that the assessment should be made according to the statute then in force and not according to the subsequent amendment. The same view was taken in Shehan v. Cincinnati, affirmed by this court, and reported by the trial judge in 25 Bui., 212. In this case the assessment was made according to the amended law, because it was in force at the adoption of the improvement ordinance, and the parties had an opportunity to terminate the proceeding before this ordinance was adopted, and, not having done so, are presumed to have assented to that mode of assessment. Manifestly the case of Seasongood v. Cincinnati, is not decisive of the question here. It, and the subsequent ease, simply decide, that the parties to a street improvement may put an end to it at any time before the improvement ordinance is made, and that no change can be made by statute in the rate of assessment fixed by statute at the time that ordinance was adopted. This, however, is not a determination that the board before which the proceeding was commenced had no jurisdiction of the improvement prior to that time, or that the proceeding was not a pending one. The parties to a suit may dismiss it at any time after the court has acquired jurisdiction by its commencement. The right to dismiss does not imply that the court has no jurisdiction; in fact the power to dismiss implies that the court has acquired jurisdiction of the parties and the subject of the action. In the case before us the proceeding was not put an end to by the parties on the adoption of the act of March 30, 1893. On the contrary it progressed before the board of legislation until it was completed. And as the change in the law did not affect pending proceedings of the kind, the assessments made for the payment of the costs and expense of the improvement are valid and cannot, be enjoined.

As to the claims of the plaintiffs for damages from a change in the grade of the alley, it is sufficient to say, they made no claim at the proper time, and are therefore deemed to have waived them.

As to the claim that the advertising, amounting to $300, was excessive: We do not understand that it is claimed, that the amount paid any particular paper was excessive — the claim is that the advertising in each particular instance was in more newspapers than required by law. The statute does not limit the number of papers in which the advertising’ shall be made. It simply is that, in each instance, the advertisment shall be in “some newspaper.” But this is not saying that it shall be in no more than one. The board seems to be given a discretion in this matter; and when there is nothing to show an abuse of its discretion, exception cannot be taken to the amount paid for advertising the various steps in the proceeding as required by law.

The judgment is reversed, and petition of plaintiffs beloio is dismissed.


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    Durfee v. MacNeil, Etc.

      Will — Devise of land to the two children of testator — Proviso: Should either die without heirs, share o f decea sed to go to survivor— Vests in each an estate in fee.

    1. A devise of lands to the two children of the testator, with the provision that “ should either die without heirs capable of inheriting, all such one’s share and legacies under this will shall inure to the survivor,” vests in each an estate in fee determinable upon the contingency of death without children; and, upon that contingency, the estate of the deceased child passes to the other by way of executory devise, although the deceased child leaves a husband surviving her.
    2. The survivor of such children having, in the lifetime of the other, rendered to her accounts of the proceeds of the sale of such lands and executed notes in consideration of balances thereof, did not thereby waive any right vested in him by the will; and after the determination of the estate of the deceased child he will be exonerated from the payment of notes given upon such consideration.
    (Decided March 29, 1898.)
    Error to the Circuit Court of Marion county.
    The original cause was taken by appeal from the common pleas to the circuit court where it was heard and determined on the pleadings and the evidence.
    MacNeil sued as the executor of the will of his deceased wife, Alice Durfee MacNeil, alleging in substance that the defendant, Elisha Brightman Durfee, was her older brother in whom she had always reposed entire confidence; that during her absence for a number of years in New England and Europe she had entrusted him with the entire management of her estate which consisted chiefly of lands in Ohio and Illinois, that he received all the rents thereof and the proceeds of sale of portions thereof which she had conveyed upon his advice executing deeds by him drawn and sent to her for that purpose; and that while he had from time to time made payments on her account and remittances to her, he had never made to her or her executor a full and correct statement of his receipts and disbursements, nor had there ever been a settlement thereof, and praying that the defendant be required to account fully for all moneys so coming into his hands.
    The defendant answered at great length admitting the relations of confidence existing between him and his sister while she lived, that he had managed her property during the years of her absence receiving the income thereof and the proceeds arising from the sales of portions thereof and stating in detail the account of receipts and expenditures on account of the trust and his remittances to her, and showing that he had fully accounted to her for all moneys so received by him in the trust relation.
    Some of the allegations of the answer were denied by the reply.

      The court found that the allegations of fact contained in the answer were true, and upon the facts specially found it rendered judgment in favor of the defendant upon all of the numerous matters involved in the controversy except as to a note for $5,000 with coupon interest notes attached, and the further sum of $221.92 with respect to which it rendered judgment against him. His petition in error here is for a reversal of that judgment.
    Of the voluminous facts appearing upon the record the following affect the questions presented: The plaintiff in error paid to and for his sister the entire income of the property which was the subject of the trust and large sums in excess thereof. The controversy concerns a portion of the proceeds of sales received by him and now claimed by him under the executory devise in the will of Bradford R. Durfee. The plaintiff in error and Mrs. MacNeil were the only children of Bradford R. Durfee who died in the military service of the United States, February 22, 1863, leaving a will which he had executed March 17, 1862, and which was afterwards admitted to probate. The twentieth item of the will defines the interests of these parties in the lands whose proceeds are in controversy, Mrs. MacNeil being the unborn child mentioned in the item, which is as follows:
    Item 20th — I give and bequeath all the balance of my estate after defraying expenses to be divided equally between my wife, Pauline M. Durfee, Elisha Brightman Durfee and the child with which my wife is now enceinte, share and share alike and to their heirs forever, and should the child with which my wife is enceinte not be born alive, or should either die without heirs capable of inheriting, all such one’s share and legacies under this will shall inure to the survivor and should I be without heirs of my body then the legacies of my children shall vest in my wife.”
    Alice was born October 27, 1862. She intermarried with Neil Nicolson MacNeil, Sept. 15, 1892, and died Nov. 3,1893, leaving no child or other lineal descendant, the only child born to her having died before her. She left a will by whose provisions she constituted her surviving husband executor and devisee in fee of her entire estate.
    From time to time during’ the continuance of the trust the plaintiff in 'error charged himself with proceeds of lands sold as well as with income thereof; and on March 21, 1891, in consideration of such proceeds of sale in his hands he delivered to his sister a note for $5,000 executed by himself to one J. E. Palmer and by the latter endorsed without recourse. This note not being paid, the circuit court adjudg’ed that he pay the amount of it to the executor of his sister.
    Scofield, Durfee <& Scofield, for plaintiff in error.
    What was the intention of the testator? We claim that the estate devised by Bradford R. Durfee to his two children, in all of the property which passed under the will to them was a fee simple defeasible, as to the interest of either child, in the event that he or she die without children at any time, and that the property should then pass over to the surviving brother or sister, in fee simple indefeasible, by way of executory devise, and that the clause “should either die without heirs capable of inheriting,” refers to the death of either without children at the time of so dying, whenever that should occur.

      The words “heirs capable of inheriting” in this connection in this particular will, whatever they may mean in other connections, can bear but one possible interpretation. In this will survivorship is prescribed between definite persons, naming them. . They are brother and sister. One of those persons could not die without heirs and leave any survivor unless heirs were restrained to mean lineal descendants at most; the only possible survivor being just over the line and the nearest collateral heir.
    This line of reasoning in the interpretation of wills was elaborately developed by the great Justice Story in the case of Lippet v. Hopkins, 1 Gallison, 454, in the year 1813; Myers’ Fed. Dec., Vol. 16, page 762; Goodridgev. Goodridge, 1 Willes, 369 Mich. Term, 16 Geo. 2, 1742; Nottingham v. Jennings, IP. W., 23; Hilary Term, 15 Geo. 3., B. R., 1775; Morgan et al. v. John Griffiths, 1 Cowper, 127; Nightingale v. Barnhill, 15 Pick., 104.
    The law in Ohio, commences in 1856 with the case of Parrish's Heirs v. Ferris et al., 6 Ohio St., 563, six years before the will in question.
    Following the Parish case was the case of Niles v. Gray, 12 Ohio St., 320, decided in 1861. Then comes the case of Taylor v. Foster, 17 Ohio St., 166, in 1867, 22 Ohio St., 255.
    We also rely on the case of Summers v. Smith, 126111., 645, 21N. E., 191; Oranev. Coivell, 2 Curt., 178. The latest cases are: Glover v. Condell-, 45 N. E. R., 173, and Strain v. Sweeney, 45 N. E. R-, 201.
    Did this plaintiff in error by his manner of dealing with the property abandon his right by ex-ecutory devise? We maintain, and it . has always been held, that it will not be presumed without evidence that a person intends to abandon anything valuable. Peckser v. Warner, 22 Ohio St., 275. But in view of the Acts of April 4,1859, March 30,1864, and April 13, 1865, providing for the sale of entailed and conditional estates found in Laws of Ohio, 1859, pages 154-5-6,-1864, Vol. 61, pages 80-1, 1865, Yol. 62, page 184, a much less violent explanation could be made of the transactions of the parties in interest in their dealings with this property.
    Sections 5803, 5808 and 5810, Revised Statutes.
    It is claimed that the way the accounts were kept and statements of account made, works an estoppel under the circumstances. We have even found a case that holds the contrary, although it is surprising that such a question was ever made. Fogarty v. Fogarty, 22 Can. S. C., 103; 8emmig v. Merriheio, 30 Atl. R., 691.
    The plaintiff below claims that the note ‘ ‘belongs’ ’ either “to him or to his assigns” and that the defendant below “is now bound to pay to plaintiff” below “or his order the full amount secured by said note and - mortgage.” Miller v. Peters, 25 Ohio St., 270.
    The note became the property of the plaintiff in error by executory devise, before the defendant in error was appointed executor, or came into possession of the note, which was then in the custody of August Belmont & Co., in New York. BeValengin’s Administrator v. Buffy, 14 Peters, 281.
    The same principles are developed in the cases of Lapham v. Martin, 33 Ohio St., 99; Martin v. Lapham, 38 Ohio St., 538.
    As to the power of Ohio courts in the premises. Ohever v. Wilson, 76 U. S. (9 Wall., 108) and 19 Law Ed., 604; Bobson v. Pierce, N. Y. Ct. App., 12 N. Y., 170; 2 Kern., 270; Pomeroy’s Eq. Juris., Vol. 1, section 254, and Vol. 3, Idem, section 1371; Meadv. Merritt,2 P&ig&, (N.Y. Chancery) 401; Burnley v. Stevenson, 24 Ohio St., 474; Pierce v. Ilayxoard, 14 Ohio St., 302; Randall v. Pryor, 4 Ohio, 424.

      J. F. Me Reed <& Sons and Philip Rathcoway, for defendant in error, did not file a brief.
   Shauck, J.

It is entirely clear that by the terms of the will of Bradford R. Durfee, each of his children took an estate in fee simple in the lands devised, determinable, however, upon the contingency of death “without heirs capable of inheriting;” the estate, upon that contingency, to pass to the survivor by way of executory devise. Did this contingency occur as to Mrs. MacNeil; or is her surviving husband her heir within the meaning of the testator?

Under our present statute of descents and distribution the lands of a married woman who dies in testate and leaving no children or their representatives pass to her surviving husband, and he is entitled to her personal estate. He may, therefore, with strict regard to the significance of the term, be designated as her heir. But from the fact that the estates of deceased persons usually descend to their children, the term heirs is frequently regarded as synonymous with children. It would be unprofitable to analyze, or even to cite, the numerous cases in which the term has been held to have been used in its general sense to designate any one capable of inheriting, or in its limited sense to designate children, as the testator’s intention may appear from the scheme and all the provisions of his will. The flexibility of the term and the duty of the court to ascertain its meaning from a consideration of the entire will are brought into clear view in Jones v. Lloyd, 33 Ohio St., 572, where it was held that the testator’s widow was not entitled to participate in a provision in favor of his heirs, although if he had died intestate she would have been his sole heir.

Since a brother is an heir in the general sense of the term, the provision that the estate of Mrs. MacNeil should, upon her death without heirs, pass to her brother by way of executory devise indicates that the term was not used in that sense. The testator could not have contemplated the death of one of his children without any heirs while the other survived. We think the testator used the term as meaning- children, and that to give effect to his intention we must hold that upon the death of Mrs. MacNeil, her estate passed over to the plaintiff in error by way of executory devise.

The judgment of the circuit court in favor of the plaintiff in error with respect to other property involved in the controversy suggests that this view of the testator’s intention must have prevailed there. We are not able to perceive any reason why the terms of the will should not control in the determination of the questions presented by the petition in error. The rights of the parties have not changed because of a change of the lands into money. The money arising from the sale of the land is subject to the testamentary provisions applicable to the land.

No estoppel arises against the plaintiff in error from the fact that he rendered accounts to his sister including proceeds of sale as well as income and paid her money or delivered to her notes on account of balances in her favor. This was his duty and his alleged failure to- perform it is the principal ground of complaint in the original petition. He could not anticipate the happening of the contingency which determined her estate. They held like estates determinable upon a like contingency, and until that occurred each was entitled as unconditional owner as against the other. The case presents no equitable ground upon which the plaintiff in error can be regarded as estopped to assert as to the money the rights which he might have asserted in the lands if they had remained unsold. Semmig v. Merrihew, 67 Vt., 38.

Upon the facts found by the circuit cou/rt, the judgment will be reversed and a final judgment will be rendered in favor of the plaintiff in error.


author: Bradbury, J.

text:
    Keys et al. v. Pittsburg & Wheeling Coal Co.

      Cotenancy — Coal lands owned in common — Contract between cotenant and father of infant co-owners — Cotenant mines on common estate — Action by guardian of infants against cotenant — Measure of damages.

    1. Where coal lands are owned by tenants in common, one of which being engaged in mining coal under adjoining lands, nis cotenants being infants, and the former enters into a contract with the father of the infants for purchasing the interest of the latter in the common estate; and the purchaser, acting in good faith under a belief that the title will be perfected by proceedings instituted in the probate court for that purpose, or by the infants when they arrive at full age, enters upon the common estate, mines and sells coal therefrom, the measure of damages in an action brought against him on that account by a guardian of the infants is the value of the coal in place at the time it was mined.
    2. If, in such case, the purchaser in the course of operating coal mines on his own lands that surround or abut on the common estate, has constructed entries, tramways, etc., conveniently located for removing from the common estate coal that may be mined there, that circumstance as well as every other one, natural or artificial, which tends to enhance or diminish the value of the coal in place should be considered by the jury in fixing such value.
    (Decided March 29, 1898.)
    Error to the Circuit Court of Belmont county.
    This action was brought by plaintiffs in error to recover of defendant in error damages on account of the latter having mined and removed coal belonging to the former. The plaintiffs in error recovered a judgment in the court of common pleas, which, on being taken on error to the circuit court, was there reversed for error in the charge of the court. Thereupon the plaintiffs in error brought the cause here to reverse the judgment of the circuit court and reinstate that of the court of common pleas. The facts necessary to a decision of the ease will be stated in the opinion.

      O. I. Weeny and A. H. <& W Mitchell, for plaintiffs in error.
    Our first proposition is, that the tenant in possession or a cotenant cannot make any conveyance that will in any manner prejudice the interests of a cotenant.

      First — In general, one cannot convey his interest in any particular part of the common estate without the consent of his eotenant. Such a conveyance, however, would be void, only as against the cotenant. A cotenant’s deed for minerals is void, and even the court cannot order sale of coal separate .fromland. Perry.on Trusts, sections 774 and776: Law of Conveyancing, Martindale, page 31, note 2: Freeman on Cotenants, sections 198, 251, note 3.
    Nor can tenant in possession bind reversioner in any manner whatever. 14 Am. St., 632.

      Second — If a tenant in common of chattels is guilty of a conversion of them, or sells or destroys them, or commits an act equivalent thereto, or so appropriates them to his own use. as to render any future enjoyment of them by his cotenant impossible, the latter may maintain an action of tort in the nature of trover against him. Mass. Digest, Vol. 3, pages 5137, 5138, sections 78, 81 and 82; Needham v. Hill, 127 Mass., 133; Weld v. Oliver, 21 Pick., 559; Burbank v. Grooker, 7 Gray, 158; Goel v. Morse, 126 Mass.', 480. Brightley’s Digest, page 3616, sections 29-30, where are cited Hyde v. Stone, 9 Co wen, 230; Gilbert v. Dickerson, 7 Wendell, 449; Farr v. Smith, 9 Ibid, 338; Mun-ford v. McKay, 8 Ibid, 442; Dyckman v. Valiente, 42 N.Y., 549; Whiter. Brooks, 43 N. H., 402; Neil-son v. Slade, 49 Ala., 253; Courts v. Hopple, 49 Ala., 254; Green v. Edick, 66 Barb., 564; Wheeler v. Wheeler, 33 Me., 347.
    Rule is, may repudiate sale and sue for the conversion, or he may ratify it and sue for his share of the money. Small v. Robinson, 9 Hun., 419; 12 Ibid, 51; Whiter. Osborne, 21 Ibid, 72; Wallers. Bowling, 108 N. C., 289, Vol. 12, Lawyer’s Reports, page 261; Glow v. Plummer, 48 N. W., 795; Foster v. Weaver, 4 Amer. St., 573, and eases cited; Amer. and Eng. Ency. of Law, Vol. 4, page 114, note 2; Same, Vol. 15, page 603, note 1; Perry v. Granger, Neb., 33 N. W., 261, Vol. 21, page 579; Sutherland on Damages, page 2433, note 1.
    The common law making it unlawful for one cotenant to sell or destroy the property, has been enacted into the statutes in some of the states.
    If a tenant in common of a chattel sells it without the authority of his cotenant he converts the latter’s share and trover lies. 24 Am. State, 816, 817, 818; 16 Am. State, 652.

      The company was not a cotenant of ours. As to us the deeds of our cotenants of a separate stratum of the property are void. Benedict v. Tenant, 21 Am. State, 589.
    The company does not claim to have possessed and used the property in the case at bar as a co-tenant, but claim their actions were under a' claim and belief of exclusive right. Freeman on Co-tenancy, section 292.
    Third. Where a party severs a part of the realty it becomes personal property, and a remainderman or reversioner is entitled to it, and may sue in trover or replevin. 7 Gray, 8; 7 Allen, 115; 14 Am. State, and eases cited, 632; Washburn on Real Property, Vol. 2, pages 467 and 742; Hillard on Real Estate, Vol. 1, page 273; Brightley’s Digest, page 3619, section 56; Hoy v. Smith, 49 Barb., 360; Cloio v. Plummer, 48 N. W. Rep., 795; Amr. & Eng. Ency of Law, Vol. 15, page 601, note 7; Bulhley v. Dolbear, 7 Conn., 232; Moores v. Wait, 3 Wendall, 104; Amr. & Eng. Ency. of Law, Voi. 26, pages 832 and 833.
    Fourth. Measure of damages where the trespass was inadvertent or by mistake, innocently made, or was willful or fraudulent, and where trespass was negligent. Vol. 15, Amr. & Eng. Ency. Law, pages 601-605; Amr. & Eng. Ency. of Law, Vol. 4, pages 114, 121 and 123; Sutherland on Da'mages, page 2402; sections 1108 to 1137, pages 2431 to 2434. For injury to the inheritance, sections 1033 and 1034; B. B. Company v. Hutchins, 32 Ohio St., 571, and 37 Ohio St., 282 ; 41 Ohio St., 357, and 15 Ohio St., 412; Everson v. Seller, page 266. Damages value at place sold, and no deductions for labor and expenses. Ind. 4 N. E., 854; 106 U. S., 432; Freeman on Cotenancy, section 305, note 4;
      Shepherd v. Pettit, 30 Minn., 119; Vol. 2, Field’s Briefs, sections 504 and 508; U. 8.v. Wingate, (O. C. E. D. Tex.) 44 Federal R., 129. If mistaken or inadvertent trespasser, value at time of conversion, when logs are severed and lying on ground. Gen. Dig. U. S. Annual, Vol. 6, page 596, section 386; Benson Min. 8. Company v. Alta Min. <£> 8. Company, 145 N. S., 428; Sedgwick on Damages, 542, not limited to place of conversion, for may have no market value, i. e., the plaintiff is not, hut where there is a market price for the property where taken, it will control rather than the place where it was to be shipped. Amr. & Eng. Ency. Law, Vol. 4, page 122. As to the market value, when and where estimated, see also Ibid, Vol. 26, pages 824 to 835; Bier v. Blade, 41 Pa. St., measure of Damages, value of the oil at the instant of separation from the freehold; Sedgwick on Damages, 622-624, rule in Mining; Timber case, 9 Fed. R., 684, where willful trespass, value at place of sale, N. S. App., 125; Gen. Dig. U. S., Vol. 7, page 615, section 373; Amr. State Report, Vol. 52, page 690; Gross negligence constructive fraud, Bigelow on Estoppel, pages 452-467; Foster v. Weaver, 118 Pa. St. R., 42 and cases cited.
    The cases and courts supposed by defendant below to administer the rule that the value of the coal by the acre in place is the measure of recovery, where the injury was inadvertent,while some of them speak of the value “in place,” “ore leave,” “stump-age,” etc., etc., yet themselves hold to the rule laid down by the court below, that the wrongdoer must pay the value of the property when it becomes a chattel, minus the reasonable outlays of the business — the cost of mining. Ency. of Law, Vol. 15, page 601; Sutherland, Vol. 3, page 376; English case, pages 378 and 512, et seq. Hartford Mining do. v. OambriaMining Co., 53 N. W. Rep., 4.
    The Pennsylvania rule so much relied on by plaintiff in error is the rule charged by the court below in Forsythe v. Wells, as explained and applied in subsequent cases in that state. Her die v. Young, 55 Penn. St., 176; Coleman’s Appeals, 62 Pa. St., 252; Sutherland, Vol. 2, page 516; Encyc., Yol. 4, page 123; Foster v. Weaver, 4 Am. State, 573.
    Fifth. As to waste. While we think the statute as to waste in this state cuts no figure as against the action for the conversion of the property in this case, yet we will call the court’s attention to this subject briefly, for the reason that counsel for plaintiff in error in the trial below placed much stress upon this to defeat the action.
    In 1870 the statute as to waste by the tenant for life, only provided for forfeiture of the portion of the estate on which the waste was committed. Sec. S. & C., 521.
    But now under the Revised Statutes of Ohio, section 4177, the tenant is made liable for damages, in addition to the forfeiture, but the statute is silent as to treble damages, or the abrogation of the common law action of trover.
    At that time the statute also provided that parceners and co-tenants might maintain an action of waste only, but now, by the Revised Statutes, section 5774, the old section has added to it, the right to compel an accounting for rents and profits in the ordinary use of the property.
    The action of waste as a common law action, has always been in force in this country and in Ohio, and when first enacted in Ohio, it was evidently for the purpose of providing for a forfeiture of the estate. JR. R. Company v. Hutchins, 37 Ohio St., 282; 41 Ohio St., 357.
    At common law, trover may be brought where trespass would lie, though the converse is not true. Field’s Briefs, Vol. 5, page 599, and authorities cited in the note.
    The existence of a life estate does not limit plaintiffs below to an action of waste for rhe injury done their interests in the remainder. They may bring' trover for the chattel severed by the waste. Allen v. JDeGrovelt, 14 Am. St., 626; page 632, note; Clark v. Walden, 7 Gray, 8; Phillips v. Allen, 7 Allen, 115. This is implied in the holding of the Supreme Court in Crockett v. CrocJcett, 2 Ohio St., 181; .Washburn on Real Property, Vol. 1, 154, et seq.; Blackstone (Cooley’s Ed.), Book 2, pages 281-3, and notes 11, 12 and. 15. The peculiar life estate known as an estate tail after possibility of issue extinct was “not punishable for waste” but even as to it a controversy existed as to whether an article severed by waste did not belong to the inheritance. Blackstone (same book), page 125, note 6, Cooley’s Edition; Agate v. Lowenstein, 57 N. Y., 604; Moore v. Wait et al., 3 Wendell, 104.
    Sixth. The cotenancy of the parties is no obstacle to a recovery, nor are we relegated to a bill in equity for an accounting. Such a bill for an accounting is the proper rémedy concerning those things one cotenant may lawfully do in the usual way of making profits or relative to transactions in the ordinary course of business between tenants in common, for the reason as claimed, that trover cannot lie between cotenants as to these; but otherwise like the case at bar. Omaha Co. v. Tabor, 16 Am. St., 185.

      The code has neither abolished legal nor equitable rights or remedies. They remain as separate and distinct as they did prior thereto, and they must be pursued by petition, stating facts applicable to the remedy sought. It is impossible to abolish the distinction between legal and equitable rights and remedies, or the substance of the several actions at law under the old practice. Lcomson v. Pfaff, 1 Handy, 449; Van Bushirh v. Dunlap, 2 Western Law Monthly, 125; 7 Ohio St., 325; 15 Ohio St., 415; 11 Ohio St., 635; 16 Ohio St., 557; Seney’s Code, pages 2 and 3. Revised Statutes of Ohio, section 4971, and notes. Freeman on Cotenancy, sections251, 302; Shepherdy. Pettit, 30Minn., 119; Clow v. Plummer, 48 N. W., 795; McCord v. Mining Co., 64 Cal., 134; American leading cases on Real Property, 3rd Vol., 112; section 5774, Revised Statutes; Blackstone, Vol. 1, Book 2, page 188, for reason of the enactment of section 5774; 49 Am. Rep., 686; 24 Am. Dec., 66; Blackstone, 2, Book, page 282; ~Wcvrfield et al. v. Lindell et col., 38 Missouri, 561.

      Newell K Pennon and L. Danford, for defendant in error.
    An infant may, as a general rule, disaffirm any contract in which he has entered, but until he does so, the contract may be said to subsist capable of being made void by disaffirmance on his arriving at age; in other words, infancy confers a privilege rather than imposes a disability; hence, a disaffirmance of a contract by an infant, the ground being minority, is the exercise of a right similar to that of rescission. But in all else the general doctrine of rescission is departed from no farther than is necessary to preserve the grounds upon which the privilege is allowed, the maxim being that infancy is a shield and not a sword. Lemmon v. Beeman, 54 Ohio St., 509.
    It will be noted that the plaintiffs do not allege that any actual permanent injury has been done to • the estate in remainder. There is no claim by plaintiffs that the estate has been diminished in value and it is submitted that plaintiffs must allege and prove that their estate has suffered actual permanent injury. Ward v. Carp Rwer Co., 47 Mich., 69; 3 Sutherland on Damages, 1033, and authorities; Bayer v. HacMnson, 110 Pa. St., 473.
    The code provides that plaintiff must state the facts constituting his cause of action.
    The statement of plaintiffs’ remedy and recovery, under their claim, cannot, perhaps, be better made than by old section 302 of the code, S. & C., 1034, —the plaintiff ‘‘may recover any rate of damages to which he may be entitled for the cause of action established. ”
    Notwithstanding plaintiffs’ allegations of defendant’s life estate and cotenancy, it is claimed that at the end of the petition the word conversion is used and that therefore the action is trover, and thereupon a recovery is sought as by the rule of damages in that action.
    If the form of action is to control the damages, the plaintiffs’ form of action, according to the allegations, is trespass qu. cl. By making the same allegations the plaintiff may allege that defendant promised to pay and recover the proceeds of the coal; by alleging that for the trespass they are entitled to damages, they may recover for injury done to their possession, the value of the prop" erty and exemplary damages besides, or by using other technical words applicable to the several forms of action at common law they may recover according to the several rules applicable to these forms. This is especially true since the Rules of Hillary Term, as they are called. Forms of action are abolished in this state. It is respectfully submitted that it is immaterial what you dub the action. The written statements of the parties and the proof on the trial of the cause must control. 3 Sutherland on Damages, section 1128 — note, also sections 1137-1138. The principle upon which this rule of damages is based is that justice requires that the injured party should be made whole, but justice requires to him nothing more. Railroad Co. v. Hutchins, 37 Ohio St., 294.
    Plaintiffs concede and it is clear that the life estate of the miner of the coal was not merged in his fee in remainder, because the plaintiffs and defendant are seized per my et per tout, and the life estate is outstanding as to plaintiffs and cannot be said to be merged in defendant’s fee.
    An important disability to which tenants for life are subject is that of not committing waste. At common law this restriction existed as to tenants whose estates were created by law and not by the act of the parties, such as estates in dower and courtesy. This defect was remedied by the statute of Marlbridge, 52 Hen. III.,c. 24,and by this statute actual damages were recoverable for waste committed or suffered by all tenants for life. But by statute of Gloucester, 6 Edw. I., e. 5, the party committing waste in such action lost the place wasted, or “thrice as much as the waste shall be taxed at.” Revised Statutes, section 4177, is based on these statutes.
    In this state the action of waste to enforce the forfeitu re of the life estate, or even for the recovery of damages, has fallen into disuse, having been superseded by the action of injunction with a prayer for an accounting. 1 Washburn on Real Property, 156; 3Pomeroy’s Eq^Juris., 1348.
    Waste, as used in our statute, is a legal technical word, and denotes injury done to the inheritance to the prejudice of the remainderman. Ayers v. Lawrence, 59 N. Y., 197. Waste is spoil or destruction of corporeal hereditaments to the disherison of him that hath the remainder in fee simple or fee tail. 2 Blackstone’s Com., 281; Dut/rov. Wilson, 4 Ohio St., 101. The true rule of damages for the wrongful and unlawful waste, committed by a life tenant, is: “The diminished value of the estate
    in remainder by reason of such waste.” ILentv. Bentley, 10 C. C. R., 132. The following authorities contain the law of the rights and remedies of the remainderman as against a tenant for life who has done injury to the inheritance by voluntary waste and give the history of the rights of such remainderman at common law and under the English and-American Statutes: 1Washburn on Real Property, pages 139 to 161; Taylor on Landlord and Tenant, sections 345 to 353, and 686, 687; Story’s Equity Jurisprudence, sections 909, 913, 917. The Ohio Statute by express terms measures the damages of the remainderman or reversioner by identifying the kind of action which may be maintained against the life tenant, as being the diminished value of the estate in remainder by reason of such waste. 3 Sutherland on Damages, section 1033, et seq. A species of waste consists in opening gravel pits in the land, and digging and selling gravel therefrom, or digging and selling the soil or coal. 1 Washburn on Real Property, 144; Huntley v. Russell, 13 Q. B., 591; Livingstone v. Reynolds, 2 Hill, 157; Tud. Cas., 65. It may be conceded that the unauthorized digging of coal by the tenant for life is waste. Russell v. Merchants Bank (Mich.), 28 Am. R., 368; Austin y. Railroad Co., 45 Vermont, 415; WardY. Carp Co., 47 Mich., 69; Sayers y. Hackinson, 110 Pa. St., 473. The miner of the coal was a cotenant of plaintiff. At common law one tenant in common could not maintain an action of account against another for receiving more than his just share of the common property. To remedy this statute, 4 Anne, c. 16, was passed, which provided that one tenant in common may have an action against another tenant in common who has received more than his proportion of the profits of the common estate. The Ohio Statutes, section 5774, and the statutes of the several states, were modeled after the statute of Anne. In the Ohio Statute the legislature departed from the phraseology of the English Statute. The words “rents and profits” and the words “according to the justice and equity of the case” are added. West v. Weyev, 46 Ohio St., 66.
    The action given by the statute is a civil action for rents and profits “received” by a cotenant in excess of his full share “according to the justice and equity of the case.” Conrad v. Conrad, 38 Ohio St., 467. Plaintiff’s action, on the facts alleged and proven in the case, is an action of account at law, and their recovery ought to be the same as though a bill of equity were filed for a like purpose. Freeman on Cotenancy, section 259.
    Mere silent possession cannot be construed as ouster. Me Chung v. Ross, 5 Wheaton (U. S.), 116.
    And generally, as to remedies between cotenants, the defendant refers the court to: Freeman on Cotenancy, sections 249a, 253, 258, 259, 269, 270, 271, 272, 273, 275, 298, 300, 305, and authorities cited under these several sections; Murray v. Haverly, 70 111., 318; Leading cases in American Law of Real Property, page 114, et seq. The value of the coal was fixed with reference to and in consideration of the defendant’s plant and facilities, and for transportation to market, and it is submitted that at least a proper deduction should have been made for these facilities. The court, in its charge, instructed the jury that they might make one deduction from the value of the coal on the floor of the room, namely, if the jury found that the defendant mined the same in the honest belief that it had full right so to do, there was to be deducted only the cost of severing. The charge of the court was in the abstract, and the rule of damages given, it seems, was clearly inapplicable to the facts of the case — inapplicable to any case. Bane v. Wilson, 10 Ohio St., 14; Raib'oad Company v. Whittaker, 35 Ohio St., 633; Coal Company v. JEstievena/rd, 53 Ohio St., 43.
   Bradbury, J.

The particular ground upon which the circuit court reversed the judgment of the court of common pleas is left in some obscurity by the record. The only statement on the subject is “That the court erred in its charge. ” As the defendant in the court of common pleas excepted to a number of different propositions found in the charge, and also to the court’s refusal to give to the jury certain propositions of law that it presented for that purpose, we are left in doubt as to which of the propositions given or refused the statement in the record refers to. The particular propositions on this subject which the circuit court held to be erroneous not being disclosed, that omission, together with the somewhat wide range taken by the arguments found in the briefs of counsel, renders necessary a more extended consideration of the rules by which damages are to be ascertained in this class- of cases than otherwise would have been pursued. However, the discussion contained in the briefs of counsel and the nature of the controversy lead quite clearly to the conclusion that the rule by which damages should be assessed was the controverted question in this connection. The record discloses no substantial controversy over the facts that establish the defendant’s liability to the plaintiffs under some rule for assessing damages. Nor does any real controversy appear respecting the facts which bear on the rule by which the damages should be assessed.

The defendant, a partnership, was extensively engaged in mining and shipping coai; the mouth of its pit or entry was nearly a mile from the main line of a. common carrier; it had invested large sums of money in constructing entries and tramways into its mines, a coal tipple outside of the mine and in such equipments for transporting coal from the mines to the tipple as is necessary for that purpose. It owned and had mined or was engaged in mining considerable tracts of coal land, that were adjacent to, and surrounded on three sides, the tract in question. This tract could be conveniently, perhaps profitably, mined if the coal could be transported along the tramways of the defendant to the defendant’s tipple. If it could not thus be transported its availability for profitable mining would be doubtful. These entries had already been driven nearly to the line of the tract, a distance of about forty-eight hundred feet from the tipple, and of about three thousand feet from the entrance to the mine. The situation of this tract was such that to have attempted to mine the coal by constructing- and equipping an entry for that purpose would have been of doubtful expediency for a number of reasons. The only outlet was too remote from a common carrier, a stream of water was inconveniently located as respects the points where an entry might be made, the entry would run against the “dip” of the vein of coal, rendering drainage of the mine and transportation of the coal both inconvenient and expensive.

The defendants had in the course of their operations approached quite near to this coal and it could be conveniently mined by them and a way through it to other coal owned by it would be valuable to them but of course worthless to others. The tract of land had belonged to one Hugh Giffin who by will executed in 1881, devised to his wife, Jane Giffin, a life estate therein and at her death the fee to his four children. In the year 1884, the defendant purchased the life estate of Jane Giffin, and soon afterwards twenty-three twenty-eighths of the fee therein, and attempted to purchase of their father the five twenty-eighths that belonged to the plaintiffs. There seems to have been little or no material controversy respecting these negotiations. The plaintiffs are children of Alexander Keys, and an exchange of their interest in this coal for certain surface was effected by him and a representative of the defendant, the terms of which are given by Ross J. Alexander, Esq., then an attorney residing in Belmont county, in a deposition in the following language:

“The children of Mr. Alexander Keys were to receive, in exchange for their interest in this coal, property, about twenty-four acres of land, out of what was called the Falke Section, being surface only the coal underlying the same being reserved. The Falke section had been previously purchased, and was then in the name of Selah Chamberlain, Trustee. Mr. Keys and his children were to ha ye, and did take, immediate possession of this land. Mr. Keys came very often to see me about this coal, not less than a dozen times, I think, and was very anxious to effect the sale of this coal. ” Mr. Keys also testified that he entered into the possession of and had ever since possessed and cultivated the surface which his children were to receive in exchange for this coal.

The general agent of the defendant testified on this subject as follows:

Cross-Examination.

“When he came with Keys you understood that these Keys children were minors?

A. Yes, I knew they were minors.

You knew as a business man that Keys could only sell his own interest as an individual?

A. I knew that Mr. Alexander was representing to me that he was the father of these children, that after this agreement was consummated he was to be appointed guardian, or act as guardian.

You knew, as a business man, that Mr. Keys as an individual had no right to sell any interest except his own?

A. Of course, I knew that.

You knew that, as the father of these children, he had no power to sell their interest?

A. Not as their father.

You knew the only legal way it could be done would be to apply to the probate court and get authority from that court, to make the sale, and then have a sale made, and have it confirmed by that court, you knew that?

A. I thought that was the arrangement made.

You understood that would be necessary?

A. Yes, sir.

And without waiting for that you turned over to Mr. Keys as an individual, this surface land — 24 acres of surface?

A. I do not remember the exact number of acres.

Well, 25 perhaps?

A. Yes, sir.

And you took possession of the coal, or your company did. You did not wait until the transaction in probate court was completed, did you?

A. Ño, sir.

At that time you went to mining your coal you did not know it had been done?

A. I just took Mr. Alexander’s and Mr. Key’s word for it, that the title would be perfect.

You understood you were to get a good title through the action of the probate court?

A. Yes, sir.

And when you got it then you would convey to him the land?

A. Yes, the titles were to be exchanged.

You did not give him a title to the 25 acres of land?

A. Not that I know of.

And you never got a title, you knew that you never had any title for these children’s interest?

A. I reported to Mr. Chamberlain the transaction and asked to have a deed prepared and signed, but never to my knowledge was it done.

As far as your personal knowledge goes you never at any time had any reason to know this land had been conveyed to Keys, and you never saw anything that came through the probate court?

A. I never give it any further attention.

The other deeds from the other Giffin interests, you had it put on record yourself?

A. I do not know whether I had them put on record or whether I had sent them to Mr. Chamberlain and he sent them here.

At any rate you handled the other deeds?

A. Yes, they passed through my hands.

You knew all the time you were taking out this coal that no deed for these children’s interest had passed through your hands?

A. I knew it had not passed through my hands.

You expected it to come to you because you had handled all the other deeds?

A. I was dividing my time so as to attend to my private business and also to look after that railroad work. There was a good deal of work done in the main office in Cleveland, and it might come without my knowing it.

You expected it, you were dealing with Alexander Keys, and you were general agent of the company?

A. Yes, sir.

You expected the deed to be delivered bo you?

A. Yes, I naturally supposed it would be.

You knew it never came to you?

A. I never thought anything more of it.

When you started to mine that coal you knew you did not have a right tc do it when you had not got the deed?

A. I knew I simply had this arrangement with Keys.

Did you not know as a business man when you started to mine that coal that you did not have a right to do it until you got a conveyance through the probate court, and from a guardian?

A. No, I supposed when they had their pay that we had a right to take the coal.

Do you say to the jury that you believed that without making a deed for it, when you turned over this surface land to their father that you had a right to mine their interests in the coal without first getting a deed from the probate court? Do you say that to the jury?

A. I will say that I did not have any doubt but what the deed would be gotten very soon.

Did you not know that would have to be done, and that you had no right to mine it? '

A. I knew the transaction would not be complete until it was done.

Do you say you did not know you had no right to the coal until that was done?

A. No, sir, I did not know that.

Do you say to the jury that you believed that you had a right to take the coal before you had a guardian’s d¿ed for it?

A. I believed we had a perfect right to take the coal under the land.”

Re-Direct Examination.

You had paid for the coal by the exchange?

A. We gave Mr. Keys that land for the children.

Subsequent to that, did Mr. Alexander say in pursuance of that arrangement that he had filed a petition for the purpose of making a legal conveyance?

A. He showed me a petition which he said he was going to file.

Already drawn by him?

A. Yes, sir.

This statement of the evidence is sufficient to show that while, as matter of law, the transaction did not divest the plaintiffs of their ownership of the coal in question, a jury might well have found that it was mined in good faith under a belief that the purchase would be ultimately completed. If the jury had thus found, by what rule should the damages have been assessed?

The court of common pleas in its charge to the jury laid down the rule applicable upon such finding as follows: If “they acted inadvertently under the honest belief that they were entitled to mine it, and to remove and sell it, and convert it to their own use, then in that case, the plaintiff will be entitled to recover the value of the coal immediately after the same was severed from the realty, less the cost of making such severance. If the coal when severed and lying on the floor of the mine is to be considered a chattel jointly owned by the plaintiffs and defendant, the rule of damages thus given by the court is as favorable to the defendant as any which the authorities support.

Further still: A very little reflection on the subject will be sufficient to show that the rule as thus stated does not materially differ from one that Axes as the measure of damages the value of the coal in place. For the value of the coal in place is just equal to its value when severed less the cost of severance. In the very nature of things the only difference between the value of coal in place and that which lies on the floor of the mine is the cost of hewing it. Therefore, if we can fix its value while in place, then by simply adding the cost of severing it, we can ascertain its value when severed. If, on the other hand, any certain rule is shown by which its value when severed and lying on the floor of the mine can be ascertained, then, by deducting the cost of severance we will have its value in place. The real difficulty encountered in this class of cases is in ascertaining the fair value of the coal, or other mineral substance, in place or when severed and lying on the floor, of the mine. If, when in place, or on the floor of the mine, it is immediately accessible to a public highway or common carrier the difficulty is practically overcome, or rather has no existence.

For usually there is no serious impediment met in ascertaining the market value of a commodity that occupies a place in the commerce of the world as important as that filled by fuel coal. And having ascertained its market value, if the coal is so situated with reference to public highways or common carriers that when severed the means of transportation to that market are open to all persons alike and upon equal terms its value in place or on the floor of the mine can be ascertained with reasonable certainty. In the case of coal severed and lying on the floor of the mine its value would be ascertained by deducting from the market price the full cost attending its transportation and marketing, while the value of the coal in place would be the market price less the total expense required to sever, transport and market it.

The coal of the plaintiffs, which was mined by the defendant, however, was not thus situated, when the defendant had extended its entry, and laid a track therein, up to the line which divided its other coal from the coal in question, the means of transportation thus afforded was the private way of the defendant, and any coal that passed along or over it would, be unloaded or dumped at the defendant’s tipple, and pass through or over its screens into the railroad cars in which it was hauled to market. Whether the railroad track on which these cars stood when the screened coal fell into them belonged to the defendant or to a common carrier does not'clearly appear. This, however, is not material to the question for whether this track belonged to the defendant or not the screens and tipple did, as well as the entry and tramway that led from the tipple to the coal, which is the subject of controversy. The means of transportation thus created being the private property of defendants were available to the plaintiffs only upon the consent of the former. Doubtless the circumstance that this entry had been completed added something-to the value of the plaintiffs’ coal.

This increased value, it is true, resulted solely from the expenditure thus incurred by the defendant and rested on the probability that the latter would And it advantageous to its future operations to possess the property and would therefore desire to purchase it. The strength of this desire and consequent value of the plaintiffs’ interest therein would depend to a great extent upon certain conditions of a local character, which are quite apparent to one who is at all familiar with coal mining operations; for instance if the defendant had exhausted the coal already owned by it which could be removed along this entry, and had coal lying beyond this land to which it wished to penetrate and which it could only reach by crossing this land, the value of this coal for immediate mining, together with the value of the right to cross this tract of land to its other coal mig-ht be very great to the defendants and the value of the tract enhanced accordingly; while on the other hand if defendant still had coal in abundance that might be mined and transported through this entry, or even other entries owned by it and could thus continue for a considerable period its mining operations without resorting to this coal its value may not have been materially enhanced by the construction of the entry. The record discloses quite clearly that but for this entry the location of the land is such it cannot be deemed to possess any considerable value for mining purposes. The record discloses further that only a year or two before the defendant began to mine this coal it purchased of Elizabeth A. Forsythe an undivided fourth of these premises for seven hundred dollars, of Nancy M. Giffin an undivided one-fourth for the same price, and of James Giffin an undivided one-fourth for six hundred dollars, aggregating two thousand dollars for three-fourths. For the five twenty-eighths owned by the plaintiffs the defendant was to convey twenty-four or twenty-five acres of surface. . The value of this surface is not stated ' but enough appears in the record to raise a strong inference that it did not exceed five hundred or six hundred dollars. The exact quantity of mineral coal which the land contains is not stated but it seems to have been about one hundred and fifty acres in all; forty-eight and twenty-nine hundredths acres were mined. Just how great a proportion of the coal should be left to support the roof of the mine does not appear, but certainly not more than one-half of the mineral coal had been removed. And of that removed five twenty-eighths only, which equals about eight and one-half acres, belonged to plaintiffs, and yet a verdict for nine thousand five hundred dollars was rendered for them, a sum far in excess of the value of the entire tract, but for this entry, and which could not have been awarded to the plaintiffs if the principle of compensation had been kept steadily in view.

If the defendant acted in good faith, and as we have seen the evidence justified a finding that they did so, they should be held to full compensation but nothing more.

• We are not disposed to question the wisdom of applying to cases of this character that severe rule of damages countenanced by the authorities, where bad faith or a willful disregard of the rights of others is shown. In such cases upon principles of public policy that seek to discourage willful or wanton encroachments on private property, the principle of mere compensation is not followed. The circumstances under which the rule of mere compensation should be disregarded as well as the rules by which compensation itself may be ascertained has long occupied the attention of the courts of this country and of England, and the cases where discussions of its several phases may be found are numerous. Among the more important of them may be classed Martin v. Porter, 5 M. & W., 351; Morgan v. Powell, 3 Q. B., 228; Wild v. Holt, 9 M. & W., 672; Llynvi v. Brogden, 11 L. R. Eq., 188; Jegon v. Vivian, L. R., 6 Ch. Ap., 742; Wood v. Morewood, 3 Ad. & El. (N. S.) 441; N. Ecc. Corns, for England v. Northeastern R. Co., 4 Ch. D., 845; Fothergill v. Phillips, L. R. Ch. D.,770; Hilton v. Woods, 4 L. R. Eq., 432; In re United Merther Colliery, L. R., 15 Eq., 46; Trotter v. McLean, 13 Ch. D., 574; Illinois & St. L. R. & Coal Co. v. Ogle, 82 Ill., 627; Robertson v. Jones, 71 Ill., 405; Maye v. Tappan, 23 Cal., 306; Goller v. Fett, 30 Cal., 481; Barton Coal Co. v. Cox, 39 Md., 1; Forsyth v. Wells, 41 Pa. St., 291; Lyon v. Gormley, 53 Pa. St., 261; Waters v. Stevenson, 13 Neb., 157; Stockbridge Iron Co. v. Cone Iron Co., 102 Mass., 86; Austin v. Huntsville Coal & Min. Co., 72 Mo., 535. Many of the cases on the subject were reviewed by Judge Wright in Railway v. Hutchins, 32 Ohio St., 571. In that case, however, trespassers had cut timber from the lands of another and converted it into railroad ties and cord wood, and it is quite evident that the means of transporting the ties and cord wood were as available to the owners as to any one else, so that no difficulty in applying the rule of damages such as occurs in the case before us, arose out of the situation and conditions surrounding the timber after severance. There the wood and ties into which the timber had been converted, rested on the surface of the earth, was on the land of the owner of the timber, and in the nature of things could have been reached by teams and hauled to market direct or to the line of a common carrier. For this purpose the construction of elaborate and expensive entries, tramways and tipples was not necessary. And it is quite apparent that the absence of this necessity enhanced the value of the timber, and that its value, whether as standing trees, felled timber, or manufactured into railroad ties and cord wood, would have steadily diminished in the same ratio that access to it would become difficult, and if situated so as to be practically inaccessible, would possess little or no value whatever. So with the coal lands of the plaintiffs. Before an entry had been extended in their direction, it must be manifest to everyone that their value, owing to their unfavorable situation for the purposes of mining, was comparatively small. Reference has already been made to the effect that may have been produced respecting its value by the defendants extending an entry and tramway from their tipple to the line of this coal. The difficulty of determining this effect, depending as it does upon circumstances the force of which is uncertain, is apparent. In this connection it may be well to advert to the situation the plaintiffs would be in, respecting the coal when severed. To them it was without value except for the probability that defendants would remove it. They could not themselves transport it, or their share of it, over the defendant’s tramway nor could they reach it by an independant, entry ever if that had been in its nature practicable, because the defendants owned twenty-three twenty-eighths of the land through which the entry must have been extended. These considerations show the impracticability of attaining the ends of justice by applying a technical rule of damages to the circumstances of this ease. The Supreme Court commission refused to apply a rule of that character to the circumstances shown in Railway Co. v. Hutchins, Supra (32 Ohio St., 571). The right of property in the ties and cord wood which were the subject of that action while they remained on land where cut or made was in the owner of the timber. By a well established principle the trespassers who felled the trees, and by their labor turned them into cord wood and railroad ties, did not by these unlawful acts transfer the property therein to themselves. The wood and ties remained the property of the owner of the timber, and he could have gone upon his land and hauled them to market, sold them and retained the proceeds. Stil further, if he could have identified them after they had been sold and delivered to the railroad company, he could have reclaimed them in specia if he had desired to do so. This he could do because they were his, and he could not be deprived of his property in them without his consent. The railway by taking and using- them converted them to its own use without his consent. This constitutes trover and by the well settled rules of law the measure of damages is the value of the property. If these well settled rules of law had been technically applied in that case the measure of damages would have been at least the value of the ties and wood when converted to its use by the railroad company. The court there, however, paid more regard to the principle of just compensation than to those technical rules which the owner of the wood and ties sought to have applied; and instead of allowing him in accordance with those technical rules the value of those articles at the time of conversion, limited his compensation to value of the timber as it lay upon the earth immediately after being felled. The principle that underlies this case and those cases which support its conclusions, and upon which all of them rest is that of fully compensating one who has suffered injhry to his property, without doing injustice to others. This case was again before this court in 37 Ohio St., 282, and beginning on page 292, Mclllvaine, J., says, “As we understand the rule laid down by the commission, the value of the timber, as enhanced by the labor of cutting down was the true measure of damages. And surely, as the labor of felling- the trees was a trespass on the real estate of the plaintiff, who has waived the wrong done to his realty, such labor was not an accession to the value of his personal property, which the trees first became after they were cut down and severed from the land. The value at least of the property after it became personal, was the measure of the injury complained of by the plaintiff.”

This rule when applied to the circumstances of that case is reasonable, the mere felling of the trees did not require any appliance beyond an ax, and was an inconsiderable proportion of the labor necessary to convert the timber into either cord wood or railroad ties, and did not extend beyond compensating the plaintiff' for his timber and the trespass which seems to have been willful which had waived, to his real estate.

Judge Mclllvaine in the course of the opinion says further, on page 294, “Indeed it appears to me to be axiomatic, that between man and man, where no wrong-was intended, equal and exact justice is done when the party wronged is made whole for all that he has lost by reason of being deprived of his property.”

If this principle had been pursued in ascertaining the damages suffered by the plaintiffs on account of the coal mined and removed by the defendant a verdict many times greater in amount than the value of the entire coal in place could not have been rendered.

This result could have been accomplished only in one of two ways. (1) Either by applying to the case some technical rule of damages, which though usually applicable to actions of this class, and generally with just results, was in fact inapplicable here by reason of some particular circumstance that distinguished it from its class, or, (2) by a misconception of the principles by which the market value of the coal should have been ascertained.

The court in its instructions to the jury regarded the coal as a chattel from the instant of severance, and authorized the jury to find its market value there, as if no restrictions whatever in respect of its removal existed. It said to the jury that if the defendants acted “inadvertently under the honest belief that they were entitled to mine it (the coal) and remove and sell it, and convert it to their own use, then in that case, the plaintiffs will be entitled to recover the value of the coal immediately after the same was severed from the realty less the cost of severance.”

It also instructed the jury that in considering the case in this view, gentlemen, you are not to consider how much it would cost the plaintiffs to have mined the coal under the circumstances, where it laid; but how much did it cost the defendant to mine it under the circumstances as you may find them from the testimony. And refused to give to the jury each of the following instructions which the defendant requested, to which refusal defendant excepted:

1. If you find from the evidence, that the only place where the vein of coal in question in this case out-crops is at the northwest corner thereof, and you find from the evidence that it is impracticable or expensive to mine and remove the coal by an opening at such place, these facts must be considered as affecting the value of the coal.

2. If you find from the evidence that the defendant mined the coal, believing in good faith it owned it, and that it had reasonable grounds for such belief, and that the defendat had no notice or knowledge of any claim or interest of the plaintiffs, or any of them therein, then the plaintiffs will be entitled to recover the value of the coal in place before it was disturbed.

3. The value of the coal in place, or on the floor of the room, is its market value there, exclusive of the facilities and conveniences afforded by defendant’s passage-ways, tracks, cars, tipples, and other fixtures, in removing it.

It is perfectly clear that when the entry and tramway constructed by defendant was extended up to and touched the line of the coal in question, no right 'to use these means of transportation accrued to the plaintiffs below. True the entry and tramway were there, and that circumstance, as before shown, may have tended to enhance the value of the coal in place, not, however, because the plaintiffs had a right to use them, but because the defendant might want the coal. If the plaintiffs, while their coal was in place, had no right to the use of the facilities for transportation thus belonging to the defendants, how can it be said that such right would accrue to them in ease the defendant in good faith supposing it had bought the coal should sever a portion of it? We think such right would not accrue under those circumstances. If not then the coal thus situated and considered as a chattel would , possess little if any value. Reference to these considerations has been made because they afford an additional illustration of the difficulties that follow an attempt to adjust the rights of these parties by applying to the facts of the case technical rules respecting the measure of damages. Treat the coal as a chattel, hold the acts of the defendants to constitute a conversion of it, and assess the damages as though the owners before and at the moment of its conversion had an unrestricted right to transport it to market although in fact it was totally inaceessible to them. The verdict in this case shows the injustice that may be thus produced.

The only rational course to pursue in such a case as this, where the defendant is a joint owner of the coal in place with the plaintiff, and acts upon the bona fide belief that he has acquired by purchase the interest of his cotenant and has mined it or a portion of it, is to ascertain the full value of the coal in place at the time it was mined. The severing, removing, screening and marketing the coal should be treated as one continued transaction, and the defendant charged with its value at the time he began to mine it. This must be determined by considerations, some of which are quite obvious; as for instance quality of the coal, the thickness of the vein or veins if more than one, its situation with reference to existing facilities, natural or artificial for mining and marketing it. Doubtless other circumstances exist that bear more or less strongly on this question of value in place; but among them should not' be classed the necessity, if any exists, that the defendants may be under to use these lands, after the coal has been exhausted, in its future operations, for a right to such use of the land would not accrue to defendant upon the exhaustion of the coal but by purchase only.

In Hilton v. Wood, 4 L. R. Eq., 432, the value of the coal in place was made the measure of damages against a defendant who had mined it under a belief he was its owner. He had bought of one who had no title, and having mined a part of it, an action was brought against him by its owner to restrain further mining, and for an account of the coal already mined. The syllabus reads: “In assessing compensation for coal already gotten by the defendant, the court being- of opinion that he had worked it inadvertently, and not fraudulently, held that he was only to pay the fair value of such coal as if he had purchased the mine from the plaintiff.” This rule was applied by Parke, B., in Wood v. Morewood, 3d Q. B., 440. The coal in that case had been mined by the defendant under a claim of title that was held invalid in an action to recover its value. Parke, B., “Told the jury that if they found for the plaintiff, they were to determine what damages should be given; that if there was fraud or negligence on the part of the defendant, they might give as damages under the count for trover, the value of the coals at the time .they first became chattels, on the principle laid down in Martin v. Porter; but, if they thought the defendant was not guilty of fraud or negligence, but acted fairly and honestly in the full belief that he had a right to do what he did, they might give the fair value of the coals as if the coal fields had been purchased from plaintiff.”

“The jury adopted the latter estimate, and found for plaintiff, damages £210 per acre.” * *

This rule of damages, in substance, was applied in Jegon v. Vivian, 6 L. R. Ch. Ap., 742.

We cannot say that the court of common pleas erred in saying to the jury that the value of the coal when severed less the cost of severance would be the measure of damages, in case it found the defendant had acted in good faith, because there is in substance no difference between the rule as thus stated and a rule which would fix the measure of damages at the value of the coal in place, for the very simple and obvious reason that the value of the coal in place is just- equal to its value when severed less the cost of severance. The statement of the rule as given by the court doubtless was a principal cause which led the jury to find the excessive verdict rendered by it. Because it was not accompanied by sufficient qualification, the jury was suffered to enter the field of conjecture and speculation without any certain guides by aid of which its conclusions should be reached.

Instead of saying to the jury that “In considering the ease in this view, gentlemen, you are not to consider how much it would cost the plaintiffs to have mined the coal under the circumstances, where it laid; but how much did it cost the defendant to mine it under the circumstances as you may find them from the testimony.”

The court should have said, that the difficulties. attending its mining and transportation by the plaintiffs might be very material in fixing its value. If the principle of compensating them was to be followed; if they were to be given the value of what they had lost, a consideration of all the conditions that surrounded their property and tending to affect its value was material. In this connection and for the foregoing reasons the request No. 1 should have been given. It reads:

If you find from the evidence, that the only place where the vein of coal in question in this case outcrops is at the northwest corner thereof, and you find from the evidence that it is impracticable or expensive to mine and remove the coal by an opening at such place, these facts must be considered as affecting the value of the coal.

In the nature of things the value of the coal would be affected by the circumstances recited in this proposition. The second of the three propositions before referred to, which the court refused to give to the jury, prescribed the rule of damages if the defendants acted in good faith, at “the value of the coal in place before it was disturbed. ” This rule as already shown did not .differ in substance from that given, but it was much easier applied to the circumstances of the case than the one given, where compensation is the end in view, and we think the defendant was entitled to have the question of damages considered from that point of view, and that the verdict was materially affected by the refusal of the court to instruct the jury according to the principle there announced.

The last of the three propositions above noted which the court declined to give, relates to the conveniences afforded by the entry, tramway, etc., constructed by defendants for mining and removing the coal. The proposition denied to the jury the right to consider these facilities and conveniences at all in fixing the damages. This proposition is too broad; for to the limited extent already adverted to, which these facilities and conveniences might enhance the general value of the coal they should be considered. The purpose to be kept in view is that of compensating the plaintiffs for all they have lost, and that compensation should be full, for without their consent their property has been taken. And to accomplish that purpose every circumstance that may tend to increase its value should be regarded as material.

Judgment affirmed.

Williams and Minshall, JJ., dissent.