author: Minshall, J.

text:
    Richardson v. The Peoples’ National Bank of Jamestown.

      Stirety on bond — Not competent to show undertaking to be disregarded tmless principal indemnify surety — Surety cannot question validity of judgment against principal except as to Jraud or mistake.

    1. Where, under a provision contained in section 5820, Revised Statutes, the surety on a replevin undertaking, is, by order of the court, on motion of the party interested, notified that a judgment has been rendered against his principal, on which execution has been issued and returned unsatisfied, and requiring him to appear, at a time named, and show cause why judgment should not be entered against him for a breach of the undertaking, the filing .of a petition against him on his appearance is not required ; and, if he fail to show cause, or a sufficient one, judgment may be rendered against him for the amount of the judgment previously rendered against his principal, on the order so served.
    2. In an action, or in a summary proceeding, on a replevin under taking, it is not competent' to the surety, in the absence of knowledge or consent of the opposite party, to show that the . undertaking was signed and delivered to the sheriff on an understanding' with him, that it was not to be regarded as delivered, unless the principal indemnified the surety within five days ; or, that the property replevined was to be returned unless the indemnity was given in that time.
    3. Also, in such action or proceeding, it is not competent for the surety to question the validity of the judgment against the principal on any ground other than fraud or mistake. In such case the judgment is as conclusive against the surety as against the principal.
    (Decided December 14, 1897.)
    Error to the Circuit Court of Greene county.

      T. E. Scroggy, for plaintiff in error.
    I. It is respectfully submitted that the court erred in requiring- the plaintiff in error, against his objections to file an answer, no petition or other pleading stating any cause of action having been filed against him.
    To bring a cause before a court, competent to adjudicate it, it is not only necessary that the parties should be in jus vocatio, cited or summoned in the manner required by the law of procedure, but a case must also be made or stated .affecting the party against whom relief is asked. It must be made to appear that such complaint has been actually preferred. Spoors v. Coen, 44 Ohio St., 502; 53 Federal Reporter, 905; Mason v. Embree, 5 Ohio St., 278; Wilkins v. Daniels, Wright, 368; Reynolds v. Morris, 7 Ohio St., 315; Rosebrough v. Ansley, 35 Ohio St., 107; Reinhardt v. Faschnacht, 4 C. C. R., 321.
    Richardson was not a party to the replevin suit and is not, therefore, presumed to know any facts which the record in that case discloses. Young v. Simral, 3 A. K. Marshall, Ky., 176; Bank v. Buckingham, 12 Ohio St., 402.
    In proceedings by scire facias, at common law, to revive and make new parties to judgments, it was necessary that the writ should state all the facts as in a declaration and if it did not it might be demurred to. Wolf v. Pounsford, 4 Ohio 397; Bank v. Adm'r of Meigs, 5 Ohio, 313; McVicar v. Ludlow, 2 Ohio, 246.
    Under section 5594, Revised Statutes, a sheriff may, upon motion, be amerced for certain delinquencies. Graham v. Newton, 12 Ohio, 210.
    The object of the statute, as amended, it seems to me, is to make the surety a party defendant to the action and is not a party to the judgment, as the trial court seems erroneously to have construed it.
    The principle recognized in the eases cited by Judge Smith, in his opinion, is that a surety in signing a replevin bond consents and agrees that any judgment which may be rendered against his principal may be rendered against the surety also, and this because the statutes of those states expressly authorize this to be done — such statutes being, by operation of law, as much a part of the undertaking as if copied therein. The Iowa decisions are based upoq. such a statute. As to the opinion of the Supreme Court prior to the enactment of the statute see Jansen v. Effey, 10 Ia., 229; Hurd v. Gallagher, 14 Ia., 394.
    It is claimed that the object of our amended statute was to provide a summary method of proceeding against sureties on replevin bonds, and that the object of the statute would be- defeated if the obligee in the bond were required to file a pleading.
    Neither the motion nor the order of the court served upon Richardson states facts sufficient to constitute the basis of a judgment against him. 1. Kinkead’s Pleading, p. 322-3; 1 Bates’ Pl. & Pr., p. 354; Whiting v. State, 48 Ohio St., 220.
    Section 5820, as amended, provides that the surety upon a replevin undertaking shall be also liable for the interest of the other party in the property taken. The bank had two remedies upon the undertaking in this case, if it had any: It could have enforced a return of the property taken or payment of a judgment for its value at its election; or it could have recovered judgment for the value of its interest in the property. Richardson was in no manner advised which of these remedies the bank was attempting to pursue.
    II. The court erred in sustaining the demurrer to the first and second defenses set up in the answer of Richardson. These defenses set up, in effect, that Richardson signed the undertaking in question, but did not authorize its delivery, or acceptance, by the sheriff, except upon certain precedent conditions which, as set forth in said defenses, were not complied with.
    It is competent for the parties to a contract to agree upon the method of its execution and delivery, and if any material stipulations relating thereto remains unperformed by them, the instrument will not take effect as their contract. Whitford v. Laidler, 94 N. Y., 146; People v. Bostwick, 32 N. Y., 445; Lovett v. Adams, 3 Wend., 380; Pawling v. U. S., 4 Cranch., 218; Ogden v. Ogden, 4 Ohio St., 182.
    The question here is one of delivery. In excluding the defense of Richardson, as to the conditional delivery of the bond, the court relied upon the two cases of Bigelow v. Comegys, 5 Ohio St., 256, and Dangler v. Baker, 35 Ohio St., 673.
    In neither case was there any condition attached to the delivery of the bond ; and in both cases the delivery was admitted, or at least not denied. Wells, section 437.
    Both of these cases were decided upon the settled rule that where one of two persons must suffer loss by the fraud or misconduct of a third person, he who first reposes the confidence and commits the first oversight must bear the loss. Ramsey v. Jones, 41 Ohio St., 688.
    It was perfectly competent for Richardson and the sheriff to make the conditions and stipulations in reference to the delivery of the bond, which they did make, whether the Bank knew of it at the time or not. C. W. & Z. R. R. Co. v. Hiff, 13 Ohio St., 235; Walter's executors v. Walter, 12 L. Bul., 212; Whitford v. Laidler 94 N. Y., 152.

      The undertaking was signed by Richardson before any property was taken.
    III. The undertaking which was signed by Richardson, if good, can only be held effective as a common law bond and not as an undertaking given- in pursuance of the statute. Section 5820, Revised Statutes; Cobbey on Replevin, section 670; Howard v. Brown, 21 Me., 385. Martin v. Bolenbaugh, 42 Ohio St., 508.
    Summary proceedings against sureties are exceptional — not favored — and are to be strictly construed. Cobbey, section 1317.
    IV. If the jury had the right to return a verdict of any kind it should have been in favor of Richardson.
    It appears from the evidence offered by the bank, viz.: the bond, judgment, 'verdict and papers in the ease of Woog v. People’s Bank, that there was no breach of the undertaking. The undertaking of Richardson was that the plaintiff would duly prosecute the action and in case judgment should be against her she would return the property taken or pay its assessed value, at the election of the bank.
    The bank elected to take the value of its interest in the property instead of a return of the property and the court rendered judgment for such interest. Semper v. White, 7 C. C. R., 306; Munding v. Michael, 10 C. C. R., 165.
    The liability of the surety depends upon the terms of the bond. Nor to be changed, even where such change would be for his benefit. Cobbey on Replevin, section 1318-1321; Ide v. Churchhill, 14 Ohio St., 383; Brandt on Suretyship, p. 108.
    The return of the officer is conclusive as to what property was actually taken, and the jury should have assessed only the value of such property. Cobbey, section 660-1; Cornell v. Cook, 7 Cowen, 310; Phillips v. Hyde, 1 Dal. U. S., 439; Greene v. Hindig, 43 Mich., 279.
    V. Conceding- this to have been a proper case to be submitted to a jury, the trial court erred in directing a verdict in favor of the bank, under the issues presented by the answer, amendments, the replies thereto and the evidence. Bank of Monroe v. Field, 2 Hill (N. Y.), 445; 2 Lawson’s Rights & Rem., section 522n. 2; Beardsley v. Foot, 14 Ohio St., 414.
    VI. The testimony shows that Cam Dean had no authority from the bank, or from anyone else to institute or carry on this suit against Richardson; and there is no such implied authority given him by law. It was not within the scope of his ordinary duties as cashier. 2 Am. & Eng. Ency., p. 119-120 n.; Branch Bank v. Poe, 1 Ala., 396; 2 Lawson’s Rights & Rem., section 253, p. 907.
    As to the authority of the president of the Bank. 2 Am. & Eng. Ency., p. 117; 1 Beach on Pri. Corporations, p. 349; Boone on Banking, section 99; Dick v. Railroad Company, 38 Ohio St., 389.
    VII. The verdict against Richardson is fatally defective in failing to find the amount due the Bank.
    This proceeding, by the express provisions of section 5820, as amended, shall proceed in all respects as a civil action. Revised Statutes, section 5203.
    A verdict which fails to find the amount due cannot be made definite by rendering judgment for the amount claimed. Taylor v. Hathaway, 29 Ark., 597. Cobbey on Replevin, section 1062; Fries v. Mack, 33 Ohio St., 53.

      If the judgment herein against Richardson is permitted to stand, then the bank will have double satisfaction for the samé claim-.
    Richardson pleaded payment of the judgment against Woog, and offered testimony to support this pleading.

      Snodgrass & Sohnebly, for defendant in error.
    1. We think the sheriff cannot repeal the provisions of the statute by any such private understanding-. It is said the bond was given before the appraisement; that it should not have been given until after the appraisement.
    We don’t know what the fact is on this point, but if it be true, there is no testimony showing that the bank had any knowledge of this irregularity.
    If Richardson was so anxious to get on Mrs. Woog’s bond that he could not wait until after the appraisement, he surely ought not to be heard now to complain.
    2. The claim that Catherine Woog and the bank entered into collusio'n between themselves whereby it was agreed and arranged between said bank and said Woog that she should make no defense, is not supported by any testimony.
    3. As a third defense Richardson says that when he signed the undertaking he was assured by the president of the bank that all claims held hy the Bank against Loretta Haughey were either fully paid or payment secured. This statement of the president, from the evidence, evidently meant that the claims of the bank were secured by the very property which Richardson enabled Mrs. Woog to take from the bank.

      4. Much of the contention by Richardson is about matters which the judgment against Mrs. Woog have placed beyond contention.
    5. Mr. Scroggy insists that there should have been a pleading filed by the bank when Richardson was made a party defendant. The statute authorizing him to make a party defendant does not require one. Richardson is brought in to show cause why judgment should not be entered against him — a like judgment as has already been rendered against Mrs. Woog, his principal. He is bound by that judgment, and unless she has pa d it, he must.
    6. That the verdict is fatally defective because it did not find the amount due the bank, is another claim made for Richardson. There was no issue as to the amount of the judgment against Mrs. Woog, which Richardson was called in to show cause why he should not pay. The question merely was whether he had shown cause why he should not be made a party to the judgment.
    7. Much is said by Mr. Scroggy about the proceeding against Richardson being without authority of the bank. The testimony finally shows that Dean, the cashier, was authorized to do whatever he thought best in the matter. The president left the whole matter to him, and knew but little about it himself, as his evidence clearly shows.
   Minshall, J.

On February 9, 1894, Catharine Woog commenced an action of .replevin in the court of common pleas of Greene county against the'Peoples’ National Bank of Jamestown for the recovery of certain personal property. The property was taken by the sheriff under the writ, appraised and delivered to the plaintiff on her executing an undertaking in double the amount of the appraised value, with Robert E. Richardson as surety, as required by section 5819, Revised Statutes. The obligation of the undertaking is, among other things, that if judgment is rendered against the plaintiff, she . will return the property taken or pay the assessed value at the election of the defendant. A trial was had, and the jury found for the defendant, that the value of the property taken was $665, and that the interest of the bank therein was $555. The bank electing to take the value of its interest in the property as found, judgment was rendered in its favor for that sum. Execution having- been issued and returned unsatisfied against the plaintiff, on motion of the bank, the court made the following- order:

“October 9, 1894. '
•October Term, 1894.
“On motion of defendant, and it appearing to the court that execution has been issued and returned, unsatisfied, against the plaintiff herein, for the collection of the judgment in favor of defendant against said plaintiff, and it appearing that Robert Richardson is surety on the undertaking given by the plaintiff, it is ordered that said Robert Richardson appear in court at 10 o’clock A. M., October 11, 1894, and show cause, if any he has, why jugdment should not be entered against him for the breach of such replevin undertaking, and why he should not be made party defendant to such action, and be adjudged liable to the defendant for the amount of its judgment against the plaintiff, to-wit, the sum of —■— and costs, according to the terms and conditions of said undertaking.
“It is further ordered that defendant cause a copy of this entry to be served on said Robert Richardson forthwith, and on further motion of defendant, it is ordered that this ease be and the same is hereby placed on the trial docket of this court;” which was served on the surety, Richardson.

The motion and order was made under a provision, contained in section 5820, Revised Statutes, as amended April 3, 1891, (88 Laws, 274) which is as follows: “That after the rendition of a judgment in any cause in which an undertaking has been given in compliance with the provisions of this chapter, (Replevin) on motion to the court, the sureties upon the undertaking shall be notified to appear in such court within ten days from the issuing of such service, and show cause why judgment should not be entered against them for the breach of such undertaking, whereupon such sureties shall be made parties defendant in such action, and the same shall proceed as other civil actions.”

Two classes of questions are made in the case, one as to practice, and the other as to the merits of the showing- made. The surety appeared and made a showing, which was held insufficient; he was thereupon ordered to be made a party and to answer. He objected to being required to answer without a petition being filed. We think there was no necessity for filing a petition. It is not contemplated by the proceeding, being intended as a summary one on undertakings in replevin. The law enters into and becomes a part of each undertaking of this kind; and the surety must be held to know that he may be called on in this summary mode to show cause why judgment should not be entered against him on a breach of the undertaking. The motion and the order served on him are all that can be required. The filing' of a petition as in an action on the undertaking would afford him no advantage by way of defense, that he does not have in making a showing against the order. He may show that he did not sign the undertaking-, or that the judgment has-been paid, or that it was obtained by mistake or fraud, and he would not be permitted to show more in an action on the undertaking, as will appear further on. There was then no error in not requiring a petition to be filed. By. signing the undertaking, he became a quasi party to the suit, and is held to have notice of all the procedings thereafter in the suit that may affect his liability on the undertaking, .particularly the judgment, which is sub modo, a judgment against him. There was no reason, however, as we can see, for requiring him to answer after he had been made a party, and filed his showing. A showing, if sufficient, is all that is required to prevent a judgment; if insufficient, and there is no application for leave to amend, the court may without more, render judgment against him. This is the extent of the proceeding. It was designed to give a speedy remedy against those who, by becoming surety on such undertakings, have assisted another in depriving a party of his property. The provision is neither harsh nor unjust, and should be liberally constrüed so as to afford the remedy intended in such cases. It is neither reasonable nor just that one who has been deprived of his property by a proceeding in replevin should be put to a long course of litigation in recovering compensation for what he has lost. This is the principle of justice that underlies the law. So that, whoever as surety signs a replevin bond, whether it be for the delivery of the property to the. plaintiff, or for its redelivery by the defendant, assumes the obligation of making speedy restitution to the aggrieved party, as the judg-ment of the court may determine if his principal does not. The signing of the undertaking and the rendition of a judgment against the principal, make a prima facie case against the surety; and devolves oh him to show why the same judgment that has been rendered against his principal, should not be rendered against him as surety. But requiring- him to answer after having made a showing, was in no way prejudicial to him, as, by his answer, lie set up the matter contained in his showing, and other matter that could have been incorporated by amendment, so that his answer as amended, presents all he had to say as a showing why judgment should not be entered against him.

The question then arises, whether his answer makes a sufficient showing why judgment should not be rendered against him for- a breach of the undertaking. His first defense is, in substance, that he signed the undertaking- on the express agreement with the sheriff, that it should not be delivered as an undertaking, until the plaintiff had indemnified him by executing- a mortgage on certain real estate, which was disregarded by the sheriff. Second, that it was signed before the writ was served, on an agreement with the sheriff, that whatever property might be taken, should be retained by him for five days; and if in that time he should inform the sheriff that he had not been indemnified, the property should be returned to the defendant. That within that time he notified the sheriff that he had not been indemnified, and demanded that the sheriff return the property, which he did not do. Third, that the property sought to be replevined was not in the possession of the defendant, and was appraised in the possession of a third person, who claimed some lien upon it. Subsequently, he amended his answer by inserting the following as a fourth defense: “That the sole foundation for the claim of said Peoples1 Bank, on which said judgment was obtained against said Catharine Woog, was the indebtedness of said Loretta Haughey, to said bank, referred to in the answer of said bank, filed herein, March 22, 1894, to secure which indebtedness said chattel mortgage or bill of sale, was given, in addition to other and .ample security held by said bank for the payment thereof. The said verdict and judgment were rendered and given in favor of said bank against said W oog, without any notice or knowledge thereof, on the part of said Robert E. Richardson, and without any opportunity on his part of showing the aforeg’oing facts, or to make a defense to said action, or in any way to object to said judgment or to any of the proceedings in said cause, or to institute proceedings for a new trial of said action. Said verdict and judgment were obtained either upon false testimony and fraudulent conduct on the part of said bank, or through a gross misapprehension on the part of the jury of the testimony; and although the record in said cause is made to show that the parties appeared on the trial thereof, yet, the said Catharine Woog was not present, either in person or by counsel, and made no defense or appearance to said action, for the reason set forth in the same amendment filed herein, January 19, 1895, and for the further reason that she was sick and unable to attend said trial, even if such collusion had not been entered into between her and said bank, and the entry on the record showing her appearance was made through mistake and inadvertence by the clerk of this court and without the knowledge or approval of the court..

‘ £2d. Said bank has now in its possession, funds obtained from the sale of property delivered to it by said Loretta Haughey for the purpose of paying and satisfying said claim of said bank against her, or any judgment which might be obtained on account of such claim and has also other securities in its possession for such purpose, which money and securities are more than sufficient to satisfy in full said claim, and said judgment against said Woog. Yet said bank wrongfully, and in fraud of the rights of said Richardson, fails, neglects and refuses, to apply said moneys and securities, or any part thereof, towards the payment or satisfaction of said judgment.

££3d. The said Robert E. Richardson, prior to the signing of said pretended undertaking, in the manner and upon the conditions as heretofore alleged in this answer, was assured by said bank, through its authorized agent and its president, that all claims held by said bank against the said Loretta Haughey, were either fully paid, or the payment thereof amply secured; and upon such assurance, as well as upon the conditions and agreements set forth in his answer, the said Richardson signed said pretended undertaking, which he would not have done but for such assurance, upon which assurance he fully relied, believing the same to be true and upon which he had a right to rely.

££4th. Said Robert E. Richardson, further says, that all the proceedings herein against him, were begun without the knowledge or consent of said defendant bank, and without its authority, and are now being carried on without its consent or authority.”

The case, on the issues, was tried to a jury, and the court, at the conclusion of the evidence, directed a verdict for the bank. The evidence is all set forth in a bill of exceptions.

We perceive no error in the direction of a verdict for the bank. There was no evidence that a court or jury could regard, that the bank had in its possession, funds obtained from the sale of property delivered it bjr Mrs. Haughey, which, with other security, would satisfy in whole or in part, the claim of the bank against her; or, that Richardson, before signing the undertaking, had been informed by any one representing the bank, that its claim was fully paid or. amply secured. With the property secured by the Haughey mortgage, tñe claim of the bank may have been amply secured; but this very property was taken from it by the writ of replevin sued out by Mrs. Woog. Neither was there any evidence of collusion or fraud in obtaining the judgment against the plaintiff in the replevin suit. If Mrs. Woog was not present, she had an opportunity to be present; and if she was prevented by sickness from being present at the trial, that would have been a proper ground for setting the judgment aside and granting a new trial, had such application been made, but it was not.

Then, as to the other matters relied on, in regard to signing the undertaking, on an agreement with the sheriff, that it was not to be delivered until the surety, Richardson, was indemnified by the principal; and, if not so indemnified, the property' taken was to be returned at the end of five days, or, any of the objections made as to the accuracy of the judgment rendered against Mrs. Woog: We think it well settled, that none of these objections can now avail the surety in an action on the undertaking, and, for a like reason, cannot in this proceeding.

1. It is too well settled to be questioned, that a surety on a bond of any kind cannot defeat his liability thereon by showing that it was delivered in violation of agreements between himself and the principal, or any other co-maker, unknown to the party for whose benefit it was given. It will be sufficient to cite some of the numerous cases or. this point: Bigelow v. Comegys, 5 Ohio St., 256; Harrison v. Wilkin, 69 N. Y., 412; Dangler v. Baker, 35 Ohio St., 673; Taylor County v. King, 73 Iowa, 153; Smith v. Peoria County, 59 Ill., 412; Deardorff v. Foresman, 24 Ind., 481; McCormick v. Bay City, 23 Mich., 457; State v. Peck, 53 Maine, 284. In Bigelow v. Comegys, the decision is placed on what is termed the settled rule, “that where one of the two persons must suffer a loss by fraud or misconduct of a third person, he who first reposes the confidence, or commits the first oversight, must bear the loss.”

In a suit in replevin, before the property taken can be delivered to the plaintiff, the statute requires an undertaking to be given .by him with sufficient surety, that, among other things, he will pay the assessed value of it, in case judgment shall be against him, which must be returned with the order. After the property has thus been delivered to the plaintiff, and judgment against him, to permit the surety on the undertaking’ to set up-that it was delivered to the sheriff in the nature of an escrow, and was returned by him contrary to their understanding’, but of which the defendant had no knowledge, would be a gross fraud on his rights. Counsel cite the ease of Ogden v. Ogden, 4 Ohio St., 182, in support of the claim that a replevin undertaking may be delivered as an escroto. There are two observations, either of which will dispose of this contention. (I.)- In the case just cited, the question arose on the delivery of a deed. But a deed, in this regard, cannot be likened to the delivery of a replevin undertaking. The latter is required by the statute, as a part of the proceeding in the case. The sheriff in taking and returning it, performs an official duty; and the opposite party has a right to rely upon what he has returned as performed in the discharge of that duty, as in the case of any other official act performed by him. And again, the law does not authorize him to take and hold such an undertaking as an escrow. (2.) The case has, however, recently been explained, and its application distinguished in Schurtz v. Colvin, 55 Ohio St., 274, 288. It is there held, that where a deed he]d in escrow, is wrongly delivered to the grantee by the person holding it, a purchaser in good faith is not affected by the fact that the deed had been wrongly delivered to the grantee. The holding was placed on the principle stated in Bigelow v. Comegys, to be settled law, and also in Dangler v. Baker, supra..

2. We think it also clear that the surety on a replevin undertaking, cannot, in the absence of fraud or mistake, be heard to question the validity, or the amount of the judgment rendered against his principal in an action on the undertaking. When he signed the paper, he undertook to pay what might be so ascertained and adjudged against his principal. He cannot, therefore, be heard to say, that the judgment is wrong. If there were any errors -in the judgment, he should, through his principal, have caused them to be corrected in a proper proceeding. Not having done so, and the judgment being in force, and unreversed, he is bound by it to the same extent that his principal is. This is in strict analogy tó the rule in an action on a guardian’s bond. Braiden v. Mercer, 44 Ohio St., 343; in an action on a.n administrator’s bond, Slagle v. Entrekin, Id., 637; and in an action on an undertaking' for the discharge of an attachment, Jayne’s Ex’r v. Platt, 47 Ohio St., 262. All the reasoning in the last case will apply with equal force to this one. Like decisions have been made upon replevin bonds by the courts of many of the other states. ' See the instructive opinion of the judge, who decided the case in the common pleas, 2 Nisi Prius, 394; where the authorities have been industriously collected and carefully discriminated.

Judgment affirmed.


source: Caselaw Access Project

author: Burket, C. J.

license: Public Domain

text:
    Kelley v. The Ohio Oil Company.

      Petroleum oil — Nature of — Realty in earth — Becomes personalty, when — Rights of adjoining land owners as to oil leaving one tract and entering another.

    1. Petroleum oil is a mineral, and while it is in the earth, it forms a part of the realty ; and when it reaches a well and is produced on .the surface, it becomes personal property, and belongs to the owner of the well.
    2. ' Whether such oil percolates through the rock, or exists in pools or deposits, it forms a part of that tract of real estate in which it tarries for the time being; and when it • leaves one tract and enters another, it becomes a part of the realty of the latter, and thereby the owner of the former, loses all right to the oil while it remains away from his land.'
    3. The drilling of wells by each owner of adjoining oil lands, along and near the division line, so that each may obtain the amount of oil contained in his lands, is known as “ pro- ' tecting lines,” and such protection affords a certain and ample remedy to prevent one operator from obtaining more than his share of oil..
    (Decided December 14, 1897.)
    Error to the Circuit Court of Hancock county.
    The plaintiff in error was plaintiff below. The cause came on for hearing in the circuit court on appeal, upon the following petition and supplemental petition:
    The defendant is a corporation formed and organized under the laws of Ohio.
    “One John F. Hastings, of Findlay, in said county, is owner in fee seized and possessed of one hundred and sixty-five acres of valuable mineral oil land, in Findlay, Ohio, and .more particularly designated as the west half of the northwest quarter of section No. 1, and the east half of the northeast quarter of section No. 2, in township one, north range, ten east, and that plaintiff has a contract and agreement with said Hastings whereby plaintiff has the right to operate said lands for oil, and take the oil from said land, yielding to said Hastings, a portion or royalty of the oil so produced, the balance to be retained by plaintiff as his own property, and in virtue of said contract, plaintiff is now at work on said land, has two wells completed and a rig- up and ready to begin the drilling of a third well thereon. That said Hastings’ land is joined on the east and west by lands now in the possession and control for oil purposes of the defendant, on which they now have producing oil wells; and the east eighty acres of said Hastings’ farm is joined on the .south by mineral oil lands owned in fee by the said defendant, and on which also the defendant has producing oil wells.
    “That underlying the land of said Hastings, and the lands so adjoining the same on the south and west and east, as aforesaid, is a formation of porous sand or Trenton rock, so-called, which is permeated with valuable mineral oil; that the nature of said mineral oil deposit is such, that when in the process of operating, an oil well is drilled from the surface down into and through said oil-bearing rock, and the usual pumping appliances attached to and employed on said well to extract oil therein, the oil will be drawn to said opening from a long distance through said porous rock, and all the oil within a radius of from two hundred to two hundred and fifty feet surrounding such well, will be drawn to and extracted by means of such well, so that in order to drain and exhaust all the oil in the land it is only necessary to drill the wells from four to five hundred feet apart.
    “The defendants, well knowing the premises and designing wilfully and unlawfully to extract the mineral oil from in and under the said Hastings’ land, by means of surface operations on the land so owned and controlled by them, in fraud and violation of the plaintiff; ’s right, and from motives of unmixed malice, have located a line of oil wells along the entire east line of said farm, and upon and along- the said south line of the east eighty acres of said farm, which wells are so located just twenty-five feet from the line of Hastings’ land, and just four hundred feet apart, all of which wells so located, the defendants threaten and intend to drill at once, with the design and to the unlawful intent and purpose of aforesaid.
    “That in view of the well-known tendency of said wells to drain a large extent of territory immediately surrounding them, it is the custom and almost- universal practice of oil operators when operating adjoining lands, to locate their wells at least two hundred feet from the line of lands, in order that so far as reasonably practicable, each operator’s well shall draw its supply from his own land, and not unnecessarily disturb or detract from the oil mineral wealth of the adjoining lands.
    “That the defendant’s holding on the east, consist of about one hundred and sixty acres in a body, and on the south, a very large tract, to-wit: several hundred acres, and there is in the defendants operating said land for oil, no sort of necessity or excuse for the defendants to locate their said wells so unusually near the Hastings line, as there are no wells at all on the Hastings’ east or south line, except the wells operated by the defendant, which are more than two hundred feet from the defendant’s line, and by plaintiff’s contract with Hastings, which is of record well known to the defendant, no well is to be drilled by the plaintiff within two hundred feet of the exterior line of the farm unless it becomes necessary in order to protect the line ; so that the only motive of the defendant in so locating its said wells, was to injure the plaintiff and to get the oil which would be available to him in his operation of said farm. •
    ‘ ‘If the defendants are permitted to extract the plaintiff’s oil in the manner as aforesaid, the plaintiff will suffer irreparable injury and will have no adequate legal remedy, for the reason that it will be impossible to determine the exact proportion of the product belonging to the plaintiff.
    “Wherefore, the plaintiff prays that a temporary restraining order issue, enjoining the defendant from drilling and operating any oil well twenty-live feet, or at any point within two hundred feet,of the line of said Hastings’ farm, unless it should become necessary to approach nearer in order to protect the line, and that on the final hearing that said injunction be made perpetual.”
    “And now comes the plaintiff by leave of this court, and for a supplemental petition and in addition to the allegations of the original petition, alleges that since the dissolution of the temporary injunction granted in this action, the defendants have proceeded and located and drilled, and are now operating for oil, or about to begin operating twelve oil wells, nine of which are at the points stated in the petition; and three of which are on the Reimund farm adjoining the Hastings farm on the west; all of which wells are so completed and operating by means of pumping appliances, and all which wells are so operating about twenty-five feet from the lines of said farm.. That all of said wells are oil producing wells of greater or less capacity ; and that by means thereof, the defendants are daily extracting large and valuable quantities of mineral oil, a large part of which mineral oil is so drawn and extracted from the deposits thereof in the land of said Hastings, and which oil the plaintiff has, by his contract with said Hastings, the right to take and use and enjoy.
    “That said wells draw their supply so indiscriminately from the -mines and lands of said Hastings and of the. defendants, that it is impossible to distinguish that of the defendant from that of the plaintiff, but all of said oil is so being taken by the said defendant and converted to its own use.
    “Wherefore, in addition to the prayer of the petition, the plaintiff prays that the defendant be required to account to the plaintiff for the oil so taken ; that the amount thereof be ascertained and that the plaintiff may have a decree in judgment against the defendant therefor and for all proper relief.”
    The circuit court was of opinion that the petition and supplemental petition failed to state a cause of action against the Oil Company, and therefore refused to hear any evidence, and found from the pleadings in favor of the' defendant, to which plaintiff excepted.

      George H. Phelps, for plaintiff in error.
    Coal or mineral oil £ ‘is a part of corpus of the estate and is not mineral feres naturae.'1’’

    Now it is the distinguishing characteristic of that which is ferae naturae, that it is not and cannot in its nature become the property of any owner until it is captured and reduced to actual possession.
    It is manifestly wrong for the owner of adjoining land to secure the oil which is the property of his neighbor, and if he can accomplish such result by a well against the line of his neighbor, thereby divesting him. of his title, the greater is the necessity for equitable restraint against unnecessary operations which in law will effect that unallowed result. 1 Pom. Eq. Sec., 423.
    That this right to lateral support is as sacred as any other right incident to the land and as much under the protection of the law is abundantly sustained by the authorities. Ballard’s Ohio Law of Real Prop., sec. 359; 41 Ohio St., 352; 34 Ohio St., 644.
    The fact (if it is a fact) that such property is in its nature more susceptible to injury by the oil operations of the adjoining land, increases rather than diminishes the deg’ree of care and caution required of the adjoining proprietor in the use of his land for such special purpose. Horner v. Watson, 79 Pa. St., 242; 48 Ohio St., 60.
    The right of man to take water is a usufructory as contradistinguished from a property right. 47 Ohio St., 336.
    Petroleum or rock oil is a mineral substance in solution. 16 Am. and Eng. Ency. of Law, 221.
    For all purposes of this action, the plaintiff and defendant must be regarded as the owners and operators of adjoining mines. Collins v. Gas Co., 131 Pa. St., 143; Coal Co. v. Tucker, 48 Ohio St., 58. Angel on Water Courses, 7 Ed., 189; 17 American and Eng. Ency. of Law, 178; Gill v. Weston, 110 Pa. St., 313.
    When, as in this record, it is admitted that oil deposits underlie this entire land surface, that is the end of all merely legal theories based upon the supposed uncertainty of the result of a well drilled therefor. Frazier v. Brown, 12 Ohio St., 249.
    It is elementary in the law, as in equity and right reason, that the owner of land shall so use his own as not unnecessa/rily to injure that of the adjoining owner. Tiffin v. McCormack, 34 Ohio St., 638; Burgner v. Humphrey, 41 Ohio St., 340; Ballard’s Ohio Real Prop., section 359 and note. Horner v. Watson, 79 Pa. St., 242.
    Any incidental injury resulting to either party by the operations of the other would under the law be clamnum absque injxiria. Bassett v. Salisbury Mfg. Co., 82 Am. D., 179; cited and commented on, 27 A. & E. Enc. of L., 428 and note.
    Fraud is ever assuming new forms, but happily equitable principles are so capable of varied application that our courts are able to furnish relief against cheats of the newest invention. Yeoman v. Lasley, 40 Ohio St., 200 ; Pomeroy’s Equity J., section 111.
    Courts will take judicial notice of the effect of such wells. Wettengill v. Gromly, 160 Pa. St., 559; Conger v. Moore, 65 Am. Dec., 528; Ohio State Geological Rep., 1890, pages 67, 68 and 84; 12 Am. & Eng. Enc. of Law, 178, 195 and 196.
    And that said wells are unnecessarily so located and drilled is equally obvious in this record. 110 Pa. St., 313; 17 Am. & Eng. Enc. of Law, 178 and note.
    Even in ordinary mining- operations it lias been held to be and manifestly is the duty of a person working near the boundary lines of his mine to take every precaution to avoid encroachment upon adjoining mines, and that if he takes ore from an adjoining mine he will be liable for trespass and equity will protect such mining property by injunction. Williams v. Coal Co., 37 Ohio St., 583; High on Inj., sections 468, 472; 15 Am. & Eng. Enc. of Law, 591; 10 Am. & Eng. Enc. of Law, 881 and notes; 5 Am. & Eng. Enc. of Law, 70-75; Wood on Nuisances, 119; Shearman & Redfleld on Negligence, section 717.
    There is also a remedy in equity for an accounting ; Pom. Eq. sections 111 and 112, Subs. 7 and 8.
    That there is a plain distinction between the solid and fluid minerals as respects the line and right to mine near the boundary is apparent and will be seen in the case cited, supra. 160 Pa. St., 559; 9 C. C. R., 34 Bull, page 519.
    The rig-ht of the plaintiff to take oil from the Hasting-s land is in law (at least) an incorporeal hereditament. 4 C. C. R., 215; 8 C. C. R., 445.
    It is the ordinary case of a tortious confusion of goods and the defendant is bound to account for the entire product. 2 Johnson’s Chanc. Rep., star pp. 62 and 108; 50 Am. Dec., 627; 54 Am. Dec., 582 and 591; 2 Ohio Leg. News, 341.

      John Poe and James A. Troup, for defendant in error.
    The single question presented by the record in this case, plainly stated, is, will the court enjoin the drilling of an oil well or oil wells by the owner on his own land, at the suit of the owner of contiguous lands, on the ground alone that the former may secure through his well some oil which used to lie within the lands of the latter ?
    This is the sole question, for if the Ohio Oil Company in this case has a right to drill on its own lands, and to receive the oil which finds its way to the foot of its well from whatever direction it may approach it, then it will make no difference for what purpose or with what intent the well is drilled.
    It need hardly be said that by title deeds, lands are conveyed to the lines, and that these lines are imbedded in as many perpendicular planes, which planes are the lateral boundaries of the thing conveyed.
    Since the value of property consists in its use, to deprive one of its use is to confiscate the property and take away its value. Section 19 of Art. 1, Constitution of Ohio.
    Much is said about the nature of petroleum oil, and quite a good deal of labor expended in efforts to find out whether it is part of the real estate in place, or whether it is not like the turkey and the deer, wild by nature, and belong-s to him only who first reduces it to possession. In the first place, it may be observed that those things which are termed in the books feres natures are animate not inanimate; these move themselves and do not wait to be moved by attraction, gravitation, or by any other force outside of themselves. A lake may receive its waters by percolating, oozing or filtering through the ground, and be furnished an outlet bjr similar processes, so that these waters as well while they compose the lake, as before they entered the basin and after they leave it, are “on the move, ’ ’ and so this modern philosophy stumbles at the problem of distinguishing between the waters of that lake and the flock of wild ducks as they float upon its placid bosom. And this same philosophy reaches the conclusion that inasmuch as both are “wild by nature” that neither is the subject of ownership until the water has been put into barrels and the ducks into game bags; and that the water no more than the ducks, as they swim, are conveyed by a deed of the land.
    We think the authorities support the view that percolating water, and by like reason percolating 011 is a part of the real estate. Roath v. Discoll, 20 Conn., 533. Water standing or percolating in the soil is part of it. Wheatley v. Baugh, 25 Pa. St., 528.
    Where a subterranean flow of water has become so well defined as to constitute a regular and constant stream, the owner of the land above through which it flows, may not divert or destroy it to the injury of the person below on whose land it flows. Brown v. Vandergrift, 80 Pa. St., 147; Brown v. Spillman, 152 U. S., 665; Frazier v. Brown, 12 Ohio St., 294; R. R. Co. v. Peterson, 14 Ind. Observe: The point is attempted to be made by plaintiff’s counsel that the lateral support is removed from the plaintiff’s oil, so that it sort of caves into the land of defendant and there is taken and used.
    There can be no substantial claim based upon such ground:
    1. Because the walls of the well do not cave, but there remains the 25 feet of solid rock between the well and plaintiff’s line, and the excavation is not sufficient to cause or permit a cave or the giving way of lateral support.

      2. In the eases in which an action is maintainable for the removal of lateral support, reference is had to lateral support in which the law recognizes the correlative rights of adjacent owners, but never has an action been sustained for the removal of percolating fluids in which the law recognizes no correlative rights in the owners. If the law will not forbid its removal neither will the law, or equity, by mandatory injunction,, compel it to be left and not disturbed.
    3. Percolating oil cannot in the nature of things form such lateral support as is referred to in the line of cases mentioned; being itself ‘ ‘on the move,” the idea of its forming a permanent lateral support cannot be entertained for a moment.
   Burket, C. J.

The question is not as to the motive, fraud or malice which may have induced the oil company to drill the wells sought to be én- ' joined. The only question of practical importance is, had the oil company the legal right to drill the wells ?

When a person has the legal right to do a certain' act, the motive with which it is done is immaterial.

The right to acquire, enjoy and own property, carries with it the right to use it as the owner pleases, so long as such use does not interfere with the legal rights of others.

To drill an oil well near the line of one’s land, can not interfere with the legal rights of the owner of the adjoining lands, so long as all operations are confined to the lands upon which the well is drilled. Whatever gets into the well, belongs to the owner of the well, no matter where it came from. In such cases the well and its contents belong to the owner or lessee of the land, and no one can tell to a certainty from whence the oil, gas or water which enters the well came, and no legal right as to the same can be established or enforced by an adjoining- land owner.

The right to drill and produce oil on .one’s own land is absolute and can not be supervised or controlled by a court, or an adjoining land owner. So long as the operations are legal, their reasonableness can not be drawn in question.

As was pointed out in Letts v. Kessler, 54 Ohio St., 73, it is intolerable that the owner of real property, before making improvements on his own lands, should be compelled to submit to what his neighbor, or court of equity might regard as a reasonable use of his property.

Petroleum oil is a mineral, and while in the earth it is part of the realty, and should it move from place to place by percolation or otherwise, it forms part of that tract of land in which it tarries for the time being, and if it moves to the next adjoining tract, it becomes part and parcel of that tract; and it forms part of some tract, until it reaches a well and is raised to the surface, and then for the first time it becomes the subject of distinct ownership separate from the realty, and becomes personal property, the property of the person into whose well it came. And this is so whether the oil moves, percolates, or exists in pools or deposits. In either event, it is property of, and belongs to, the person who reaches it by means of a well, and severs it from the realty and converts it into personalty.

While it is generally supposed that oil is drained into wells for a distance of several hundred feet, the is matter somewhat uncertain, and no right of sufficient weight can be founded upon such uncertain supposition, to overcome the well-known right which every man has to use his property as he pleases, so long he does not interfere with the legal rights of others.

Protection of lines of adjoining lands by the drilling of wells on both sides of such lines, affords an ample and sufficient remedy for the supposed grievances complained of in the petition and supplemental petition, without resort to either an injunction or an accounting.

The case of Coal Company v. Tucker, 48 Ohio St., 41, and Collins v. Chartiers Valley Gas Company, 131 Pa. St., 143, and other like cases in which some harmful substance was sent, conveyed or caused to go from the premises .of one to the premises of another, have no application here, because in this case, nothing reached the plaintiff’s lands from the premises of the defendant, and the only complaint is, that the oil company soused its own premises as to secure and appropriate to its own use, that which came into its lands by percolation, or by flowing through, unknown natural underground channels. This it had a right to do. While the drilled oil well is artificial, the pores and channels through which the oil reached the bottom of the well, are natural.

Judgment affirmed.


author: Shauck, J.

text:
    Morris v. Woodburn.

      Liability of city lot owner — Defective covering to vault under sidewalk — Duty of municipality.

    If the owner of a lot abutting upon a street of municipality, for the use of his property, contracts a vault under the sidewalk over which he negligently places and maintains a defective covering, he is liable directly to a footman injured thereby, notwithstanding the omission by the municipality of the duty imposed upon it by statute to keep the street in repair.
    (December 14, 1897.)
    Error to the Circuit Court of Columbiana county.
    Miss Woodburn brought an action in the court of common pleas against Mrs. Morris, and the city of East Liverpool, to recover on account of personal injuries sustained by her being precipitated into a coal vault under a sidewalk in the city, and in front of abutting premises owned by Mrs. Morris, and occupied by her tenant. Against Mrs. Morris it was alleged, that for the use of her property, she had constructed said vault under the walk, and had covered the same with an iron grating which had not been made to fit into the opening, and had not been securely fastened, and that having so defectively constructed the same, she knowingly permitted it to remain in such defective and dangerous condition, from which the plaintiff’s injuries were sustained.
    Against the city it was alleged, that at the place where the accident occurred, the sidewalk was much traveled, and that the city, with knowledge of the dangerous condition of the walk, negligently and carelessly permitted it to remain in that condition.
    Judgment was asked against both defendants. Both defendants demurred to the petition generally, and for misjoinder.
    The demurrers having been sustained, the plaintiff, on leave, filed an amended petition against Mrs. Morris alone, alleging against her, as before, negligence in the construction and maintenance of the vault and grating, and that it was so maintained by her with knowledge that it was a nuisance, and a menace to all who had occasion to use the walk.
    Without demurring, Mrs. Morris answered, admitting her ownership of the abutting property, and the improving of the same by her, arid the construction of the coal vault and the grating covering its opening, but denying all other allegations, of the petition, and alleging that if the plaintiff had received the injuries alleged in her petition, they were caused by her own negligence.
    The plaintiff, replying, denied that the injuries were caused by her negligence.
    A substantial verdict was returned in favor of the plaintiff, a motion for a new trial filed by Mrs. Morris, was overruled, and judgment was rendered on the verdict. This was affirmed in the circuit court.

      A. G. Smith and A. H. Clark, for piaintiff in error.
    It will not be seriously controverted that the city has the whole control and supervision of the streets, including sidewalks. This control and supervision is vested in the officers of the municipal corporation.. The law of this state so provides. Section 2640, of the Revised Statutes, also section 2328, Revised Statutes.
    So that the statutes provide that the duty of keeping sidewalks open, in repair and free from nuisance, is devolved upon the city, and this duty the municipal corporation, under the law, owes to the public.
    We think and contend that the trial court erred in overruling the objection of defendant because the city was and is primarily liable under the pleadings and evidence as well.
    This coal hole, they allege, was improperly constructed, and had been in the bad condition described for a long time, about nine months. The evidence shows that several persons traveling along the sidewalk had met with mishaps or accidents, and all say and claim they occurred by reason of the defect of the coal hole and consequently defective sidewalk. It would seem, therefore, that the primary and proximate negligence causing the accident and alleged injuries and consequent damages would rest upon the city. Rochester v. Campbell et al., 123 N. Y., 405 ; 21 N. E. Rep., 371; 149 Mass., 289; Grove v. Kansas City, 75 Mo., 672.
    The city council, the agents of the city, have absolute control over the highways and sidewalks within the corporate limits of the city. The plaintiff below recognized this fact and in beginning- her action complains of the carelessness and negligence of the city, and says such negligent conduct on the part of the city caused, or at least contributed to, the accident and her consequent injuries. And if the defendant city, as it was before it got out of the ease by demurrer, is held liable for damages by reason of the unsafe condition of the sidewalk, it has its remedy over against the plaintiff in error, if by her negligent act the sidewalk was rendered unsafe. Beach on Public Corporations, sections 1490 and 1491; Rochester v. Campbell, 123 N. Y.; 405; Saulsbury v. Ithaca, 94 N. Y., 27; Kurtz v. Boylston Market Association, 14 Gray, 252; Robbins v. Chicago, 4 Wall., 657; Girdley v. Bloomington, 88 Ill., 554; Smalley v. Appleton, 75 Wis., 18; City of Philadelphia v. Smith, Pa., 16 A., 493; Woodard v. City of Boscobel, Wis., 54 N. W., 332; City of Abilene v. Cowperthwait, 52 Kan., 324.

      J. G. Moore and J. H. Brookes, for defendant in error.
    Had we sued the city and recovered, the city in turn could have recovered over against the plaintiff in error upon the ground of primary responsibility. Counsel for plaintiff in error concede this to be true. By what manner of reasoning, then, can it be claimed that a process of circumlocution is necessary on our part before we can reach and recover from the one who is directly and primarily responsible for our injury ? City of Defiance v. Wilhelm, 12 Ohio Circuit Court Report, 346; Barry v. Terkildsen, 72 California, 254; Clifford v. Day, 81 N. Y., 56; McIlvaine v. Wood, 2nd Handy, Cincinnati Superior Court Reports, 166.
    We do not take issue at all with section 2640 and section 2328 of the - Revised Statutes relied upon by plaintiff in error, and had this injury resulted from the natural decay and wear of the sidewalk in front of the Morris house, and through no overt act of Mrs. Morris, clearly the city alone would be responsible.
    It is clear that the fault was not due to decay, use, wear or interference by mischievously inclined persons as counsel intimate, but to the original construction of the hole and grid, admitted to have been made by Mrs. Morris.
    It was thus a nuisance from the beginning, and no claim of liability of tenant could be made j n this case. The nuisance had existed several years before the witness Burns rented the property and ought to have been, and doubtless was, known to Mrs. Morris long before Mr. and Mrs. Burns had called her attention to it and she had promised to have it abated. Shindelbeck v. Moon, 32 Ohio St., 264.
   Shauck, J.

It is thought by counsel for the plaintiff in error, that upon the facts which the petition alleges and the evidence offered in its support at the trial tends to prove, the judgment' should have been in her favor. This conclusion is drawn from the legal propositions that the statute, (section 2640, Revised Statutes,) charges upon the municipality the duty of keeping streets and sidewalks open and in repair, and that the duty of constructing and maintaining’ sidewalks, is not, either by the statute or the common law, charged upon the owner of abutting property.

These propositions are well sustained by the provisions of the statute and the decided cases. They would justify the conclusion drawn by counsel if the negligence charged against Mrs. Morris, like that charged against the city in the original petition, consisted of mere omissions of supposed duty. But while the tort of the city consisted in the failure to discharge a duty imposed by statute, that alleged in the amended petition against Mrs. Morris, consisted in the creation of a nuisance, dangerous to those using the walk. These are concurrent and related torts, but they are not joint. In view of their independent character, the plaintiff might, at her election, maintain her action against either the city for its omission óf duty, or against Mrs. Morris for the creation of the nuisance which occasioned her injury. And it appears from reason and authority that the primary liability in such case is upon him who actively creates the nuisance; so that if a recovery were had against the bity, it might in turn recover from the perpetrator of the wrong. Chicago v. Robbins, 2 Black, 418; Same v. Same, 4 Wall., 657; Rochester v. Campbell, 123 N. Y., 405.

The liability of the owner of the abutting property for an injury resulting- from torts of this character, notwithstanding- the omission of duty by the municipality, is necessarily implied in Clark v. Fry, 8 Ohio St., 358; and Railroad Company v. Morey, 47 Ohio St., 207, although the precise question may not have been raised.

Judgment affirmed.


author: Bradbury, J.

text:
    The Cincinnati, Hamilton & Dayton R. R. Co. v. The Village of Bowling Green, Ohio.

      Municipal corporation — Authority of — Section 2494, Revised Statutes. — May require railway company to light its tracks running through city — City may prescribe kind of light— Use of electric plant — Corporation law.

    1. Where a railroad company is operating a railroad, the track of which extends within the limits of any incorporated city or village in this state, such city or village is authorized by section 2494, Revised Statutes, to require such railroad company to light that part of its track which lies within the corporate limits, although the company so operating such railroad is neither the owner, nor the lessee thereof.
    2. The city or village has authority in such case to ijrescribe the kind of light that shall be employed for that purpose.
    3. Where, in such case an electric light plant is in operation ' within such city or village, lighting its streets and furnishing light to its inhabitants, an ordinance is not unreasonable because it requires a railroad'company to use in lighting its track the particular kind of lamp and illuminating materia^ in use for lighting the streets of such city or village.
    4. An ordinance prescribing that 1 ‘the number of hours that said electric lights shall be require d to be lighted during each period of twenty-four hours, shall be the same as the said council does now, or may hereafter, require for electric lamps within the limits of said village for lighting streets, shall be lighted’ ’ is sufficiently definite to advise the railroad company of what it is required to do.
    5. An electric light company, owning an electric plant, and engaged in furnishing light to the inhabitants of a city or village, and in lighting the streets thereof, has so far devoted its property to a public use, that it is bound to furnish light within such city or village impartially to all applicants at a reasonable price.
    (Decided November 17, 1897.)
    Error to the Circuit Court of Wood county.
    This action was brought in the court of common pleas of Wood county, by the village of Bowling Green, to recover of the Railroad Company, plaintiff in error, a sum of money to reimburse the village for expenditures incurred by it in maintaining electric lights at certain places that by ordinance it had required the railroad company to maintain, and which the latter had neglected to do.
    The village prevailed in the court of common pleas, and the judgment there rendered in its favor was affirmed by the circuit court. To reverse the judgments thus rendered, is the object of the proceedings in this court.
    Swayne, Hayes Tyler, for plaintiff in error.

      R. B. Moore, for defendant in error.
   Bradbury, J.

The plaintiff in error, a railroad corporation, was operating a line of railway within this state, part of which la j within the incorporated village of Bowling Green, defendant in error. The village, deeming it necessary that a part of the railway track lying within its limits should be lighted, and there being then an electric light-plant in operation in said village, on December 21, 1891, passed the following ordinance:

ORDINANCE.
“An ordinance to provide for the lighting- of the track of The Cincinnati, Hamilton & Dayton Railroad Company, (operating the Bowling Green Railroad Company) within the corporate limits of the incorporated village of Bowling Green, Ohio.
“Section 1. Be it ordained by the council of the incorporated village of Bowling Green, Ohio, that The Cincinnati, Hamilton & Dayton Railroad Company, possessing' and operating a line of railway within the corporate limits of said village, be, and it hereby is required — the same being deemed necessary by said council — to light a portion of its said railway within the corporate limits of said village, with electric lights by causing one electric lamp with the necessary attachments, similar in all respects to the' electric lamps and attachments now used in lighting the streets of said village of Bowling Green, Ohio, by erecting over said railway tracks within the limits of said village at each of the following places, to-wit: At the intersection of said track with the Ridge road, Adams street, Ordway avenue, Pearl street, West Wooster street, Wallace avenue, Morton avenue and the Brown road, and by lighting said lamps with electric lights as hereinafter provided.
“Section 2. The number of hours that said electric lights shall be required to be lighted during each period of twenty-four hours, shall be the same as the said council does now, or may hereafter, require for electric lamps within the limits of said village for lighting streets, to be lighted.
“Section 3. The work of lighting said parts of said railway shall be begun within twenty days after the date on which said company shall be notified of the passage of this ordinance, and the clerk of said village is hereby directed to cause notice to be given said railway company of the passage of this ordinance according to law, and in case said company shall fail to comply with the requirements of the same for a period of twenty days from the delivery of said notice, then said village of Bowling Green, Ohio, shall cause said lamps to be erected and said lighting to be done at the expense of said railway company, and the said railway company shall pay to the said village, the full costs thereof, which shall be a lien upon all the real estate and leasehold interests of- said The Cincinnati, Hamilton & Dayton Railroad Company, situate or being within Wood county, Ohio.”

On January 9, 1892, notice of the adoption of the ordinance was duly given to the railroad company. The twenty days prescribed by the ordinance having elapsed, and the railroad company neglecting to comply with the provisions thereof, the village about the first of March, 1892, caused an electric lamp, of the kind prescribed to be placed at each of the five points specified by the ordinance, and thereafter, until the first of the ensuing September, maintained lights therein. The railroad company failing to pay the expense incurred in this behalf the village passed the following ordinance:

“AN ORDINANCE
To assess the costs of lighting The Cincinnati, Hamilton & Dayton Railway, upon the property thereof.
“Section 1. Be it ordained by the council of the incorporated village of Bowling- Green, Ohio, that the following cost and expense of lighting The Cincinnati, Hamilton & Dayton Railway, and incurred under the ordinance for that purpose, heretofore passed by this council, to-wit: Five are lights for the months of March, April, May, June, 1892, one hundred and thirty-two dollars and five ($132.05) cents ; be, and the same is hereby levied and assessed upon all the real property and leasehold interests of the Cincinnati, Hamilton & Dayton Railway Company, situated in the county of Wood, in the state of Ohio; and if the same be not paid within ten days from the date hereof, the city solicitor is hereby directed to cause the same to be collected by an action brought for that purpose in a court of competent jurisdiction.
“Section 2. This ordinance shall take effect and be in force from and after its passage and legal publication. ”

The railroad company failing for more than ten days to pay the sum thus demanded, this action was begun in the court of common pleas to enforce its payment.

A number of defenses were interposed by the railway company, upon which the cause went to trial, no substantial dispute was had, however, over any fact which we deem necessary to establish a rig’ht of recovery in the villag-e. The evidence disclosed that the plaintiff in error, at the time the ordinance was passed, and ever since, operated a line of railroad that extended into the village; that the ordinance prescribing the lights was duly passed, and notice thereof duly given to the plain-, tiff in error. That it did not maintain the prescribed lights; that the same were, during the period for which recovery was sought, maintained by the village, that the village had not been reimbursed for the money expended in that behalf; and that the city solicitor had been authorized to sue for its recovery. The right of the village to a recovery rested upon the facts just recited, and was established whenever those facts were established, provided the villag-e had authority to require the railroad company to maintain the lights in question. The real defense was a denial of this authority.

The provisions of the statute upon which the village depends for its authority in the matter, read as follows:

“Section 2494. When it is deemed necessary by the council of any city or village to have any bridge or railway, located in whole or in part* in such corporation, owned, possessed, or operated by any individual, company, association, or corporation, or any portion of the same, lighted, the council shall pass an ordinance for that purpose, requiring the individual, company, association, or corporation owning, possessing, or operating the same, to light such bridge or railway within a specified time.
‘ ‘ Section 2495. The ordinance shall specify the manner in which such bridge or railway shall be lighted, the number and style of lamp-posts, lights and fixtures, and the time such lights shall be kept burning- in each twenty-four hours.”

The railroad company contested the legality of the steps taken by the village upon a number of distinct grounds.

One of these grounds was, that it did not own the railway, which it was required to light. In this connection, it appeared that the railroad company, plaintiff in error, owned a line of railway extending from Cincinnati to Dayton, in this state, and had leased the Dayton and Michigan railroad, with which it connected at Dayton, and which extended northward from Dayton to Toledo, passing about five miles westward of the village of Bowling Green, and that a short line of railway had been built, which extended from a point on the latter railroad into the village of Bowling Green, defendant in error. The track which it was required to light, was part of this short line of railroad. Of this short line, it averred it was neither owner or lessee, and for that reason, denied the power of the village to charge it with the expense of maintaining the lights in question. This defense would be com píete if the statute — section 4994, supra — author ized municipalities to charge this burden upon such railroad company, only, as owned, or had leased the railroad to be lighted. Ho we ver, the authority conferred by the statute is not thus limited, but extends to any company that may be operating the railroad. According to the terms of the statute— section 2494 — the village had no concern respecting the title of any one in, or to the railroad in question. It had power to charg’e whatever company it found operating the railroad without inquiry as to the character of its title, and this is what it did in the present instance. The ordinance states and the petition alleged, that the plaintiff in error was managing and operating the railroad in question, and this statement and allegation is nowhere disputed in the record. We hold, therefore, that by the statute — section 2494 — the village finding the plaintiff in error managing and operating a railroad within its limits, was authorized to charge it with the duty of maintaining these lights, though it neither owned, or had leased the railroad the track of which was to be lighted.

This section of the statutes (2494) was before this court in the case of Railroad Co. v. Sullivan, 32 Ohio St., 152, and was held to constitute a reasonable exercise of police power, and therefore constitutional.

The ordinance in question specifies the points at which lights are to be maintained, and prescribes the kind of light, and the lamps and attachments to be employed. Electricity must be used, and the lamps and attachments must be in all respects similar to those' used in lighting the streets of the village.

Plaintiff in error contends, that these provisions are unreasonable at the pde thiny riveit of the power of determining’ the kind of light to be used, and of contracting’ on its own behalf; that the system of lamps and attachments which the ordinance prescribes are the subject of patents, and that the exclusive right to use them within the village, has been granted to the Bowling Green Electric Light & Power Company, and that, therefore, the plaintiff in error was put wholly within the power of such company by the ordinance, and will be compelled to pay whatever price the company chooses to establish or .charge, for the lights required.

As respects the objection to the ordinance on account of its specifying the kind of light to be used, the statute — section 2495, Revised Statutes — • among other provisions, requires the ordinance to “specify the manner in which such * * railway shall be lighted. ” * * * This language seems broad enough to authorize the municipality to prescribe the kind of light to be employed for that purpose, - — whether electricity, gas, or any other material or means that may be reasonably adapted to the purpose. The power of selecting the kind of light to be used, can be exercised, of course, only, where more than one kind is available. This power must reside somewhere, either in the railroad company or the municipality. The power to require the lighting of a railroad track is a branch of the police power of the state. If the terms of this section (2495) of the Revised Statutes, grant-ting the power to municipal bodies should not' be broad enough to expressly authorize them to prescribe the kind of light to be employed, yet, as the power to compel a railroad company to light its track at all, implies authority to require it to be efficiently done, it would seem to necessarily follow, that, within reasonable limits, the power to prescribe the kind, of lights rests with the municipal authorities. They, of course, in this respect, could not cast an unreasonable burden on the rail, road company.

Doubtless, an ordinance would cast upon a railroad company an unreasonable burden, and for that reason, would be void, if it prescribed an electric light, when the municipality contained no electric plant or other convenient means of generating electricity; otherwise, each municipality, large or small, through which a railroad mig’ht pass, could compel those who operate the road to erect a plant to generate the light thus required.

There was, however, in. the village of Bowling Green, at the time the ordinance under consideration was passed, an electric light and power company, operating- an electric plant, and therefore, the means was at hand that would enable the railroad company to comply with requirements of the ordinance in this respect, and, therefore, such requirement was not in itself unreasonable.

Did the ordinance unreasonably limit the right of the railroad company to. contract on its own behalf, or unreasonably place it with the power, and subject it to extortion at the ■ hands of the electric light and power company, of which it must procure the lights ?

True, the railroad was required to adopt electricity as the means of illumination, and was confined to the kind of lamps and their attachment, then in use in said village. If the exclusive right to use within the village, these lamps and attachments had been granted by the patentee to the Bowling Green Electric Light & Power Company, and if this company had an absolute power to fix the price that it could exact for the use of its light and lamps, then the contention of the railroad company would find strong support in reason and justice. It may be conceded, however, that the lamps, and their attachments, as well as the system of lighting in use in the village of Bowling Green, were all protected by patents, and that the Bowling Green Electric Light & Power Co., had the exclusive right to their use within that village, and yet, the power of extortion would not follow, necessarily.

The light and power company, have acquired in the village, rights that are in the nature of a monopoly. The use to which it has devoted its property, is one in which the public have an interest, and it requires the use of the streets and alleys of the village to conduct and distribute electricity to its lamps for illuminating purposes ; and in addition to this, power to appropriate private property has been conferred on it. Section 3471, Revised Statutes. Both reason and authority deny to a corporation clothed with such rights and powers, and bearing-such relation to the public, the power to arbitrarily fix the price at which it will furnish light to those who desire to use it. Beach on Corporations, section 834, 835, 836; Zanesville v. Gas Light Co., 47 Ohio St., 1; Munn v. Illinois, 94 U. S., 113; Spring Valley Water Works v. Schottler et al., 110 U. S., 347; Gibbs v. Baltimore Gas Co., 130 U. S., 408; The City of St. Louis v. The Bell Telephone Co., 96 Mo., 623; Nebraska v. The Nebraska Telephone Co., 17 Nebr., 126; Central Union Telephone Co. v. Bradbury, 106 Ind., 1.

The Bowling Green Electric Light & Power Company was bound to serve all of its patrons alike ; it could impose on the plaintiff in error no greater charge than it exacted of others who had used its lights. The village had authority to fix the rates to be charged by the company for lights. Section 2478, Revised Statutes. If the village authorities should fail to act in this respect, and the plaintiff in error and the power and light company, could not agree upon a price, the latter, by an appeal to the courts of the state, could compel the former to furnish the lights at a reasonable price.

Therefore, the provisions of the ordinance requiring- the plaintiff in error to use the lamps and attachments then in use in the village, was not unreasonable. Notwithstanding that the sole right to use the lamps and attachments prescribed, may have been vested in the Bowling- Green Electric Light & Power Co., yet, as that company was bound to furnish light to all its patrons on terms that must be both reasonable and impartial, the ordinance requiring the use of such lamps and attachments, should, in that respect be deemed reasonable. The right to make contracts on its own behalf, is doubtless a valuable one to the plaintiff in error, and if there had been two or more electric light plants in the village, an attempt, to dictate to plaintiff in error which of them it should choose, might have presented an interesting question. There was but one, however, and the only choice open to plaintiff in error, was between building a new plant or taking light of the company then established in the village; If that company had an exclusive right to use the lamps and attachments prescribed, then no choice was open to the plaintiff in error, and it would be compelled to procure the lights of that company. This, however, from a practical point of view, was of little or no concern, because, while the circumstances surrounding the plaintiff in error compelled it to take the lights of this particular company, yet, the latter was also compelled to furnish them at a reasonable price. The state, under these circumstances, must yield its police power, a power existing for the benefit of all its citizens, or the right of a railroad company to an unlimited power of contracting must give way. This is not the only instance in which its powers in this respect are curtailed for the public good. This is notably the case in respect of its power to contract concerning the transportation of freight and passengers.

The ordinance in question requires the lights to be furnished by the plaintiff in error, shall be kept lighted during the same hours that the street lamps of the village may be kept lighted; this' we think is sufficiently definite to clearly inform the plaintiff in error of what was required of it in this respect.

The ordinance, we think, imposes no unreasonable burdens on the plaintiff in error.

Judgment affirmed.