author: Williams, J.

text:
    Pennsylvania Company v. Platt et al.

      Estoppel — Eminent Domain — Abandonment—Former Decisions — Practice.
    1. When it has been determined by this court that the petition in a case states a cause of action, and the case afterwards comes before the court for the review of alleged errors occurring at the trial, the court will follow the prior decision, unless very clearly satisfied that it is erroneous.
    2. In the decision of this case on the demurrer, reported in 43 Ohio St., 228, it was held, that upon the averments of the petition, the plaintiffs might treat the easement of The Lake Shore & Michigan Southern Railway Company in that part of its right of way described in the contract between that company and the defendant set forth in the petition, as abandoned, and recover of the defendant damages as upon an appropriation. The fact, upon which the petition based the alleged abandonment, was the making of the contract alluded to, by which the Lake Shore company undertook to transfer that part of its right of way therein described, to the defendant for railroad purposes in perpetuity. The averments of the petition relating to the abandonment, are, that by the agreement between the two companies, The Lake Shore & Michigan Southern Railway Company, for the consideration therein named, “ abandoned to the defendant and undertook to permit and license the defendant to use and perpetually occupy for its railroad,” that part of the former company’s right of way referred to; and, “that by the abondonment aforesaid,” the easement of The Lake Shore & Michigan Southern Railway Company “ceased and terminated;” and, “that portion of said lot so abandoned to and occupied by the defendant is of the value of ten thousand dollars.” The answer does not controvert the making of the contract between the two companies as alleged in the petition, but denies that the Lake Shore company intended .to or did thereby abandon any of its right of way, or that its easements or right of way ceased and determined by virtue of said agreement.

      Meld: (a.) These denials raise no issue of fact. They are the pleader’s construction of the contract, and his opinion as to its legal effect.
    (6.) By the decision upon the demurrer, it was settled that the effect of the contract made between the Lake Shore company and the defendant, was to work the abandonment claimed in the petition; and it was not error for the court,.on the trial of the case, to so instruct the jury.
    3. In order to estop an owner, from asserting title to his property, by his declarations or conduct, it must appear, that he was, at the time, apprised of the true state of. his title; that he knew, or had reason to believe, his declarations or conduct would be acted upon by another; that they were acted upon by such other person in ignorance of the title, and that such person will be injured by allowing the truth of the admission by the declaration or conduct so acted upon by him, to be disproved.

      4. While an owner, who stands by, and without objection, sees a public railroad constructed on his land, will, after the road is completed, or large expenditures have been made thereon, upon the faith of his apparent aequiesence, be estopped from reclaiming the land, or enjoining its use by the railroad company, he is not thereby estopped from claiming compensation for its value.
    (Decided May 20, 1890.)
    On the 14th of July, 1876, the defendants in error, Harvey P. Platt and Charles H. Scribner, commenced an action against the Pennsylvania Company, in the Court of Common Pleas of Lucas county, by filing therein the following petition.
    “ The plaintiffs, Harvey P. Platt and Charles H. Scribner, say that the defendant, the Pennsylvania Company, at the times hereinafter mentioned, was, and still is, a railroad corporation, created and organized under the laws of the state of Pennsylvania, and, during the period hereinafter mentioned, has been doing business in Ohio, and managing and operating a line of railway partly located in said county of Lucas, under and by virtue of the laws of the state of Ohio : but said defendant does not now have, nor has it ever had power under the laws of Ohio to appropriate lands for railroad purposes.
    “ Plaintiffs further say, that in the year 1851, one William Oliver was, and for some time prior thereto had been, the owner in fee simple of the following described lands, to wit: Lot thirteen (13) in the subdivision of fractional sections one and twelve, town ten, south, range seven, east, and of river tracts eighty-six (86) and eighty-seven (87), in the twelve mile reserve at the foot of the Rapids of the Miami of La.ke Erie, Lucas county, Ohio.
    “ That while the said Oliver was the owner of said lot as aforesaid, and on the 28th day of Februaiy, a. d. 1851, The Toledo, Norwalk & Cleveland Railway Company, a corporation created under and 'by virtue of the laws of Ohio, for the purpose of constructing and operating a line of railway in said state, instituted proceedings in the Court of Common Pleas of said county, to appropriate and condemn for its uses as such railroad corporation, a portion of said lot thirteen. Such action was had therein that a portion of said lot, being a strip of land one hundred feet in width and about twelve hundred feet in length, extending entirely across said lot on the westerly side thereof, was appropriated by said last mentioned railroad company for its uses aforesaid; but no compensation for said lands so appropriated was awarded or paid to said owner thereof.
    “ That shortly after said appropriation, and in virtue thereof, said The Toledo, Norwalk & Cleveland Railway Company constructed along and upon the westerly fifty feet of said strip of ground, a railroad track, and continued thereafter to run their cars over the same until said company was merged by consolidation, under the statutes of Ohio, into The Lake Shore & Michigan Southern Railway Company, which last mentioned company became the successor and was and is vested with the rights, property and franchises of said The Toledo, Norwalk & Cleveland Railway Company; and has since continued to run its cars over said track so constructed along and upon the westerly fifty feet of said strip of land appropriated as aforesaid; but neither the said The Toledo, Norwalk & Cleveland Railway Company, nor the said The Lake Shore & Michigan Southern Railway Company has ever made use of any portion of said strip of land lying east of the centre line thereof; nor has either of said railroad companies ever had any interest in said lands except as acquired by said appropriation.
    “Plaintiffs further say, that after the said appropriation the said William Oliver departed this life intestate, seized in fee of said lot thirteen, leaving one Harriet O. Hall his only child and heir-at-law; who thereupon became and was seized in fee of said lot, subject, only, to the rights acquired by said * railroad company under and by virtue of said proceedings to appropriate. And being so seized in fee, thdsaid Harriet O. Hall, on the 25th day of September, A. D. 1869, by her deed of that date duly executed, acknowledged and delivered, conveyed to these plaintiffs all of said lot thirteen, including said strip of ground one hundred feet in width, subject, however, to the rights acquired therein by said railway company as aforesaid; but excepting a portion of said lot off the southerly end thereof, and easterly of the centre" of the River Road, so called, containing five and acres, which had been before that time conveyed to one Stillman Brown. And plaintiffs say, that under and by virtue of said conveyance they therefore became and have ever since been vested with the full title and estate in and to said premises, in their own right and in trust, and they thereupon entered upon and have ever since been possessed thereof, subject only to the rights of said railroad company acquired as aforesaid.
    “ Plaintiffs further say that about the month of September, A. d. 1872, or shortly thereafter, the defendant, the said Pennsylvania Company, wrongfully and unlawfully, under a pretended license obtained from the said The Lake Shore & Michigan Southern Railway Company, entered upon so much of said strip of ground one hundred feet in width, appropriated as aforesaid, as lies easterly of the centre line thereof, and proceeded to, and did dig and excavate the same along and upon said lot for the entire length thereof, and proceeded to, and did lay down and construct thereon a railway track, and have ever since been, and now are, engaged in running their passenger and freight trains of cars daily, and many times each day, along and over the same; that on the 4th day of January, A. D. 1874, the said Pennsylvania Company entered into a contract in writing with the said The Lake Shore & Michigan Southern Railway Company, a copy of which is hereto attached, marked “ A,” and made a part of this petition, whereby it was agreed, among other things, between said companies, that for the consideration of $7,500, to be paid by defendant to said The Lake Shore & Michigan Southern Railway Company, and upon certain other considerations in said agreement mentioned, the said last mentioned company abandoned to the defendant, and undertook to permit and license the defendant to use and perpetually occupy for its said railroad, a strip twenty-five feet in width, part of said strip of one hundred feet in width, lying east of and adjoining the centre line of said last mentioned strip, along the entire length thereof; and also assumed, for the consideration aforesaid, to grant to defendant certain other rights and privileges in the lands and easements of said The Lake Shore & Michigan Southern Railway Company. The portion of said lot so abandoned by said last mentioned company to the defendant, is shown in the plat or diagram attached to, and forming part of said Exhibit “A,” and made a part of this petition. And plaintiffs say, that the defendant claims, under and by virtue of said contract with said The Lake Shore & Michigan Southern Railway Company, to have acquired the right to use and occupy said strip of ground for its said railroad purposes, during its will and pleasure.
    “And plaintiffs aver that by the abandonment as aforesaid of the easterly fifty feet of said strip of ground by the said The Lake Shore & Michigan Southern Railway Company, and of the portion thereof occupied by defendant as aforesaid, the said easement therein of the said last mentioned company acquired by said appropriation thereof, has ceased and terminated; that defendant has acquired no right in and to any portion of said lot under said contract with said company, or otherwise, and all its said acts are in violation of the rights of plaintiffs as the said owners of said premises; and plaintiffs aver that that portion of said lot so abandoned to and occupied by defendants, as aforesaid, is of the value of ten thousand dollars.
    “ Plaintiffs further say, that said lot thirteen extends, on the west, to the thread of the channel of the Maumee river, and embraces the easterly shore of said Maumee river for a distance of about twelve hundred feet; that as the owners of that portion of said lot thirteen conveyed to them as aforesaid, they are invested with the title to and ownership of said river front, extending to the thread of the channel of said river, as aforesaid, and all the rights and privileges connected therewith and attaching thereto; and but for the said wrongful and unlawful acts of the defendant hereinbefore complained of, the said property, rights and privileges of the plaintiffs would be of great value.
    “ Plaintiffs say that the said excavations made by the defendant, as aforesaid, are of great depth, and extend entirely across the said lot thirteen, at the westerly side of the River Road, so called, and are within a short distance of said river front of the plaintiffs for said distance of about twelve hundred feet; that said railroad track of defendant is constructed upon, and operated along that portion of said lot so excavated as aforesaid, at a different grade from that of the tracks - of said The Lake Shore & Michigan Southern Railway Company; and by reason of the premises aforesaid all communication between said river front and the remainder of plaintiffs’ said premises is cut off and destroyed; that in consequence of said wrongful and unlawful acts of the defendant, and of the proposed maintenance thereon of defendant’s said line of railway as aforesaid, the usefulness and value of plaintiffs’ said river front, and of the remainder of their said premises have been and are greatly injured and impaired and depreciated; and plaintiffs aver that they have sustained damages by reason of the premises aforesaid in the sum of fifty thousand dollars.
    “ Wherefore plaintiffs pray judgment against the defendant for the sum of sixty thousand dollars; and for all other proper relief.”
    A general demurrer to the petition having been sustained, the case was brought on error to this court, where it was held that the petition stated a cause of action, and the judgments below were reversed, and the cause remanded for further proceedings. The decision of the court is reported in Yol. 43 of the Ohio State Reports, p. 228.
    A copy of the contract between The Lake Shore & Michigan Southern Railway Company and the Pennsylvania Company, referred to in the petition as Exhibit “A,” is contained in the statement of the case there made, and need not be again set out here.
    After the case was remanded to the court of common pleas the defendant filed the following answer:
    “And now comes the defendant, and by leave of court files its amended answer to plaintiffs’ petition and says: It admits that it is a corporation of the state of Pennsylvania, .-and has been doing business in Ohio, operating the line of : railway named in plaintiffs’ petition; it admits that William 'Oliver was the owner of the premises described .in plaintiffs’ ¿petition, in the year 1851, and that The Toledo, Norwalk & Cleveland Railway Company, a corporation created under and by virtue of the laws of Ohio, duly appropriated and condemned for the use of its line of railway, a portion of the lot of said Oliver extending entirely across said lot and one hundred feet in width as averred in said petition; but it denies the averment in said petition that said Oliver was not compensated and paid for said lands so appropriated by said railway corporation; it admits that said The Toledo, Norwalk & Cleveland Railway Company afterwards constructed a line of railway upon said tract, and that thereafter said corporation was merged by consolidation under the statutes of Ohio, into The Lake Shore & Michigan Southern Railway Company, and that The Lake Shore & Michigan Southern Railway Company thereby became the successor and vested with all the rights, interests and property franchises of said The Toledo, Norwalk & Cleveland Railway Company, and has since continued to maintain and operate said railway upon said premises; but it denies the averment in said petition contained that neither the said The Toledo, Norwalk & Cleveland Railway Company, nor the said The Lake Shore & Michigan Southern Railway Company, has ever made use of any portion of said strip of land lying east of the centre line thereof; it says that it is not advised of the state of plaintiffs’ title, and therefore denies the same; it admits that on or about the month of September, A. x>. 1872, it entered upon a portion of said one hundred feet immediately east of the centre line thereof, to wit: a strip twenty-five feet in width, and that it has laid thereon a track as averred in said petition, and that it has since maintained and operated the same; but it denies that it did so wrongfully and unlawfully, and it denies that under and by virtue of the arrangement between The Lake Shore & Michigan Southern Railway Company and the defendant, The Lake Shore & Michigan Southern Railway Company intended to and did abandon the said twenty-five feet occupied by said defendant, or the remaining twenty-five feet east of the part occupied by the defendant, but it avers the fact to be that the said arrangement entered into by said railway companies was entered into by said The Lake Shore & Michigan Southern Railway Company and this defendant for the common benefit of both companies, in accordance with the powers conferred by the statutes of Ohio in such cases made and provided; and among other purposes it was designed to afford the means of interchange of traffic between said two named companies by furnishing means for connections of tracks, and that shortly after the construction of defendant’s railroad track, connection was made by the defendant with the tracks of The Lake Shore & Michigan Southern' Railway Company, and the same has ever since been maintained and operated and used as a means of interchanging traffic from either of said lines to the other. It further says that it denies that the easement and rights of said The Lake Shore & Michigan Southern Railway Company in and to the fifty feet easterly of the centre line have ceased and determined by virtue of said agreement of 1874, but it avers the fact to be that said The Lake Shore & Michigan Southern Railway Company still owns, occupies and controls the twenty-five feet easterly of the part occupied by this defendant; it denies the averment in said petition contained that the easement in the easterly fifty feet of said strip of The Lake Shore & Michigan Southern Railway Company has ceased and terminated; it further says that it denies that any acts of the defendant have affected the value of said portion fronting upon the river, and it denies that the strip of ground so as aforesaid occupied by it is of the value of ($10,000) ten thousand dollars, as it is averred in said petition; it denies that the excavations made by the defendant for the purpose of constructing its railway are of great depth, and that but for said excavation and the existence of defendant railway, said river front would be of much greater value than it now is; it denies that the construction of its said line of railway upon said strip of ground has in any. manner affected or impaired the communication and means of access from one portion of plaintiff’s premises to the other; but it avers the fact to be, that the original appropriation in 1851 completely severed the portion of said lots fronting upon the river from the portion lying easterly of the one hundred feet thus appropriated, and that prior to the construction of defendant’s railway the plaintiffs had no means of communication from one piece to the other across said one hundred feet; it further avers that the grade line, upon which it located and constructed its said track, was such grade line as said The Lake Shore & Michigan Southern Railway Company, as the successor of The Toledo, Norwalk & Cleveland Railway Company, has the full and perfect right, under the said appropriation, to adopt as the line for double tracks or side tracks in connection with its said line of railroad, and in furtherance of its said railroad.

      “Second Defense. — The defendant answering further says : that prior to the time of the construction of the defendant’s railroad bed upon the lands described in the petition, the plaintiffs had acquired the title to said lot No. thirteen (13) as alleged in their petition, and were the owners thereof at the time and during the construction of said railroad by this defendant, as alleged in said petition; that said plaintiffs then well knew that this defendant claimed title to said twenty-five feet of land whereon its said road was being built, and entered upon, took possession of and constructed its said road with the understanding and belief that it had a right to do so under its said contract with the said The Lake Shore & Michigan Southern Railway Company. That notwithstanding all this the plaintiffs stood by, acquiesced in and encouraged the defendant in the construction of its said railroad upon said lot thirteen (13), and made no protest or objection thereto; and asserted no claim to the ownership of said right of way until after the completion of said railroad, and the defendant says that by reason of the aforesaid acts of said plaintiffs they are thereby estopped from making the claim set forth in their said petition.
    “ Wherefore it asks to be dismissed with its costs.”
    The plaintiffs by their reply denied generally the allega tions of new matter contained in the answer, and upon the issues thus joined by the pleadings, the case was tried to a jury, which returned a verdict for the plaintiffs assessing their damages in the sum of $15,993.14.
    A motion for a new trial was overruled upon the plaintiffs remitting $500 of the verdict, and judgment was thereupon rendered for the balance.
    The judgment was affirmed by the circuit court, and this proceeding is prosecuted here to reverse the judgments of the courts below. The questions arising upon the record, which it is deemed important to notice in the disposition of the case, together with any further statement necessary to their understanding and decision, will appear in the opinion.

      E. W. Tollerton and J. H. Doyle, for plaintiff in error,
    cited and commented upon the following cases. Reckner v. Warner, 22 Ohio St. 275; Butt v. Green, 29 Ohio St. 671; 6 Hill, 48; 5 Hill, 468; 3 Comst., 519; East Ala. Rwy. v. Tenn. & Coosa Riv. Rd., 78 Ala. 274; Karnes v. Wingate, 94 Ind. 594; Timon v. Whitehead, 58 Tex. 290; Woods v. Seeley, 32 N. Y. 105; Union Dime Inst. v. Wilmot, 94 N. Y. 221; 46 Am. Reports, 137; Parker v. Crittenden, 37 Conn. 148; Bank v. Bowen, 80 Ill. 541; Kinnear v. Mackey, 85 Ill. 96; Camp v. Moseley, 2 Fla. 171; Wortham v. Gurley, 75 Ala. 356; Bigelow on Estoppel, 4th ed., 587, 588; Towns v. Needham, 3 Paige 545; Jones v. Powell, 6 Johns. N. Y. 194; Hills v. Miller, 3 Paige 254; Watertown v. Cowan, 4 Paige 510; Childs v. Campbell, 9 N. Y. 246; Bigelow on Estoppel, page 639; Lawrence v. Stratten, 6 Cush. 163; Holbrook v. Tirrell, 9 Pick. 105; Commonwealth v. Dudley, 10 Mass. 403; Howard v. Massengale, 13 Da. 577.

      Eranlc K. Kurd and Charles Pratt, for defendants in error,
    commented on the cases above, and also cited and commented on the following authorities and statutes. Hill v. Bassett, 27 Ohio St. 599; Sec. 5302 Revised Statutes; Roscoe Digest of Nisi Prius Evidence, 91; Esterwick v. Cooke, 2 Ld. Raym. 1557; 73 Ohio Law, 140; Walton v. U. S., 9 Wheat. 651,
      Bradford v. Watts, Wright 497; Moore v. Brown, 10 Ohio 197; Hubble v. Renick, 1 Ohio St. 171; Markward v. Donat, 21 Ohio St. 637; Wells on Res. Adj., 569; Stacey v. R. R. Co., 32 Vt, 552; Bridge Co. v. Stewart, 3 Howard 425; Hunily v. Rose, 5 Cranch 314; Morton v. Hunter's Lessee, 1 Wheat. 304; Brown v. McArthur, 7 Wheat. 58; The Santa Maria, 10 Wheaton 442; Ex-parte, Sibold, 12 Peters 442; Case v. Beauregard, 101 U. S. 688; Law Bulletin Oct. 21, 1889, page 272; Bank v. Flour Co., 41 Ohio St. 552; 6 Am. & Eng. Ency., 508; Lewis on Em. Dom., sec. 586; Mississippi R. R. Co. v. Wooten, 36 La. Ann. 441; Kansas Central R. R. Co. v. Allen, 22 Kan. 285; Railroad Co. v. Kiegelo, 32 Kas. 608; Blake v. Rich, 34 N. H. 282; Lands' Appeal, 55 Pa. St. 16: Railway Co. v. Kidder, 21 Ill. 131; Railway Co. v. Switzer, 117 Ill. 399; Carpenter v. Baston & Amb. R. R. Co., 24 N. J. Eq. 240; S. C., Ibid, p. 408; S. C., 26 N. J. Eq., 168; 2 Curwen, 1394, sec. 10; Act of April 5, 1866; Baker v. Taunton, 119 Mass. 302; Munn v. Stanton, 42 Mich. 500; New-ville Road case, 8 Watts. 172; Lewis on Em. Dom., sec. 508 and 648; Goodwin v. R. R. Co., 18 Ohio St. 169; R. R. Co. v. Robbins, 35 Ohio St. 538; Oliver v. R. R. Co., 101 N. Y. 122; McAfferty et al. v. Conover, 7 Ohio St. 105.
   Williams, J.

In the former decision of the case, reported in 43 Ohio State 228, it was held, that the petition stated a cause of action entitling the plaintiffs to recover of the defendant, as in a proceeding by it to appropriate the strip of land occupied by its railroad, compensation for the value of the land so occupied, and damages for the increased danger and inconvenience in the use of the plaintiffs’ other lands from which the strip was severed, arising from the construction and operation of the defendant’s road. Upon the trial of the case, subsequently had in the court of common pleas upon the issues joined by the pleadings, it appeared, that The Lake Shore & Michigan Southern Railway Company continued to own and use the west half of the right-of-way originally appropriated, which completely separated the plaintiffs’ riverfront, from their other lands; and, that no privilege of crossing the right-of-way, as a means of access from their river front to their lands on the other side, belonged to the plaintiffs. The court, accordingly, instructed the jury that the plaintiffs were not entitled to recover damages for the alleged injury to their riverfront, and withdrew the evidence relating to such damages from their consideration.

With respect to the damages claimed for the injury to the plaintiffs’ land lying east of the strip occupied by the defendant’s road, and between it and the river road, evidence was given tending to show that The Lake Shore & Michigan Southern Railway Company never abandoned any part of its right-of-way lying east of the defendant’s road-way. Evidence was given by the plaintiffs tending to prove their damages, if such abandonment should be found by the jury. The jury found upon the question for the plaintiffs, and returned in their verdict, separately, the specific amount of damages so sustained. Upon the hearing of the motion for a new trial, the court, being of the opinion, that part of the verdict was not sustained by the evidence, required the plaintiffs to remit the damages so assessed, which was done, and judgment entered for the remainder of the verdict.

All questions have been thus eliminated from the case, except those relating to the plaintiffs’ right to recover the value of the strip of land occupied by defendant’s road. This right, on the trial, was contested upon two grounds. 1. That there had been no abandonment by The Lake Shore & Michigan Southern Railway Company, of that part of its right-of-way; and 2. That plaintiffs were estopped, by their conduct, from claiming such abandonment.

I. In the charge to the jury, after.stating that the right, acquired by the railroad company making the appropriation, was an easement in perpetuity for railroad purposes in the strip of land so appropriated, which, afterwards passed to and became the property of the Lake Shore company, and, that by the contract, referred to in the petition, between the defendant and the Lake Shore company, the latter company transferred to the defendant for railroad purposes, twenty five feet of the appropriated strip, the court said to the jury, that “ the supreme court of this state has decided that by virtue of such transfer, the Lake Shore company abandoned its easement to the said twenty-five feet, and that thereby the said twenty-five feet reverted to, and became the property of the plaintiffs, clear and free from the said easement.” After the jury had retired, they returned into court and requested that a portion of the charge be re-read to them, which was done without objection; and then, in response to an inquiry made by one of the jurors, the court further said to the jury; “ The supreme court decided that the contract made by the Pennsylvania Company and the Lake Shore company worked an abandonment of that twenty-five feet, and that thereby it reverted to the plaintiffs, and they became the absolute owners of the property free from the easement.” The defendant excepted to these portions of the charge, and requested the court to give in charge each of the following instructions, viz.:

“ There is nothing contained in the contract between the Lake Shore company and the Pennsylvania Company, of date January 4,1874, whereby the former grants to the latter the said twenty-five feet of land, which in law amounts to an abandonment by the Lake Shore company of its rights in said land. The Lake Shore company had a right to make said contract, and the Pennsylvania Company acquired thereby a right to construct its road as it did upon said twenty-five feet of land, as described in said contract.

“If the jury find that The Toledo, Norwalk & Cleveland Railway Company, in constructing its road, built the same substantially in the centre of its one hundred feet of appropriation, then I charge you that this was a user of the entire one hundred feet; and if you further find that said track has ever since remained where originally built, then there never has been any abandonment by said company, and your verdict must be for the defendant.

“If the jury find that such use of the east fifty feet for support and protection was necessary, and the grant to the Pennsylvania Company and the construction of its track was in aid of such protection and an additional protection, such grant would not amount to an abandonment.”

The court refused to give either of these instructions, and the defendant excepted.

It is clear, that if the charge given was correct, there was no error in refusing the instructions requested, unless the decision upon the demurrer should be overruled. And, though counsel for the plaintiff in error, question the soundness of that decision, they recognize the well established rule, that when it has been determined by this court that a petition states a cause of action, and the case afterwards comes before the court for the review of alleged errors occurring at the trial, the former decision will be followed, unless it is very clearly erroneous. Their contention is,- that the decision upon the demurrer, has not the effect ascribed to it by the trial court, in the portions of the charge under consideration. And whether it has, or not, is the question now before us.

The fact, upon which the petition bases the alleged abandonment, by the Lake Shore company, of its easement in the strip of land for which the plaintiffs claim compensation, is the contract made between that company and the defendant, by which, the former, undertook to transfer that part of its easement, to the latter, for railroad purposes in perpetuity. The averments of the petition are, that by the agreement between the two companies, The Lake Shore & Michigan Southern Railway Company for the considerations therein named “ abandoned to the defendant, and undertook to permit and license the defendant to use and perpetually occupy for its railroad,” the strip of land in question; and, “ the portion of said lot so abandoned ” is shown by the diagram attached to the contract; and, “ that by the abandonment as aforesaid ” the easement of The Lake Shore & Michigan Southern Railway Company “ ceased and terminated; ” and, “ that portion of said lot so abandoned to and occupied by the defendant is of the value of ten thousand dollars.” No other abandonment than that resulting from the contract, is alleg-ed in the petition; nor, is the abandonment placed upon any other ground. True, the petition avers that the Lake Shore company never had any interest in the land except that acquired by the appropriation, which was but an easement, and that it never used any portion of the strip so acquired, lying east of the centre line thereof. But it is nowhere charged, or claimed in the petition, that the abandonment resulted from such non-user. As we understand the decision upon the demurrer, it was held, that upon the averments of the petition, the plaintiffs might treat that part of the easement which the Lake Shore company transferred to the defendant, as abandoned by the former company, and recover of the defendant as upon an appropriation; and by that decision, fairly construed, in view of the allegations of the petition, it was settled, we think, that the effect of the contract between the Lake Shore company and the defendant, was to work the abandonment of that portion of the right-of-way described in it.

The answer does not controvert the making of the contract between the two companies, as alleged in the petition, but denies that the Lake Shore company intended to or did thereby abandon any of its right-of-way, or that its easement or right-of-way ceased and determined by virtue of the contract. These denials, in the light of the former decision, raised no issue of fact. They are the pleader’s construction of the contract, and his opinion of its legal effect. It is further averred in the answer that the contract was entered into for the common benefit of both companies, and was designed to afford means for the interchange of traffic between the two companies; and it is contended in argument, that the Lake Shore company retained a beneficial use of that part of its right-of-way transferred to the defendant by the contract, resulting from the protection afforded by the defendant’s roadway to the tracks of the Lake Shore company.

The agreement between the two companies is expressed in the written instrument. It is no part of that agreement, that the Lake Shore company shall retain for any purpose, any control of, or interest in, that part of the right-of-way transferred by the agreement to the Pennsylvania company, nor, that the latter shall so construct or maintain its roadway as to protect the tracks of the former. It may incidentally result, that the tracks of the Lake Shore company will receive some protection from the grade of the defendant’s road as now constructed, but such incidental protection confers on the former company, no right in, or control over, the latter’s road, or the strip of land transferred to it by the contract. The agreement imposes no obligation upon the Pennsylvania company, to maintain its roadway as now constructed. It may change the grade at pleasure, and any right to use or control any part of the right-of-way occupied by the defendant, which the Lake Shore company may hereafter acquire for the protection of its tracks, must depend upon future conventional arrangement between the two companies. And so, with regard to the interchange of traffic between the two companies, and the use of the tracks of each company for the common benefit of both; for nothing on either subject is found in the written contract. By that contract, the surrender by the Lake Shore company of its dominion over that part of its right-of-way therein described, was complete. The charge of the court, with respect to the effect of the former decision was, we think, free from error.

U. The estoppel pleaded by the defendant, is in substance, that the plaintiffs, being the owners of the premises on which the defendant was constructing its railroad, and knowing that the defendant claimed title under its contract with the Lake Shore company to that portion on which its road was being built, stood by, acquiesced in, and encouraged the defendant, in the construction of the road, and asserted no claim to any part of the right-of-way, until after the road was completed.

Upon the trial of the case, the inquiry in regard to the estoppel was allowed a somewhat more extended range, and evidence was admitted tending to show an estoppel, by declarations and conduct of the plaintiffs which induced the defendant to enter into the contract with the Lake Shore company. The defendant was given the benefit of this evidence, as well as of the evidence tending to prove the estoppel pleaded, as appears from the charge of the court, which, upon this branch of the case was as follows:

“ Where one person, by his acts or declarations made deliberately, and with knowledge, induces another to believe certain facts to exist,, and that other person rightfully acts on the belief so induced, and is misled thereby, the former is estopped to afterwards set up a claim based upon facts inconsistent with the facts so relied upon, to the injury of the person so misled. This definition embraces all the essential elements of an estoppel. It will be your duty to examine the evidence, and ascertain whether all these elements are proved in this case substantially as I have stated them. Inquire first if the plaintiffs said or ■ did anything, and if so, what, to induce the Pennsylvania Company to enter into this contract with the Lake Shore company, which is set out in the petition. Merely standing by with knowledge that the railroad company has entered upon the land and is constructing its railroad thereon, and making no objection, is not of itself sufficient. Such conduct might deprive the owner of his right to reclaim the land or to enjoin the operation of the railroad, or to recover the value of the improvements put upon the land by the railroad company; but something more is necessary to bar his claim to recover compensation for the land taken. Did the plaintiffs know that this contract, or substantially such a contract, was about to be made; and did they, by their conduct or declarations, fairly lead the defendant to understand and believe that by such contract the defendant would get the title to this strip of land free from any claim of the plaintiffs to compensation ? To estop the plaintiffs by their acts or declarations, such acts or declarations must have come to the knowledge of and be relied upon by the defendant. Any statements made by the plaintiffs to the Lake Shore company, of which the defendant had no knowledge, or upon which they did not rely, are not sufficient to create an estoppel. If the plaintiffs knew of this contract, they and the defendant are alike presumed to know what the legal effect of the contract was, viz.: that it would work an abandonment by the Lake Shore company of its easement in this strip Of land, and restore the land to the plaintiffs free Tom the easement. And the conduct of both parties must be considered in tbe light of such a presumption. The defendant, knowing the legal effect of such a contract, would enter into it at its peril, unless it was fairly led to believe by the declarations or the acts of the plaintiffs that it might do so without incurring any liability to them. If the plaintiffs knew that a contract was about to be made between the Lake Shore company and the Pennsylvania company, whereby the former company would cede to the latter company the right to occupy and forever maintain and operate its railroad upon this strip of twenty-five feet, and induced the defendant to believe that they had no claim or would assert no claim by reason of such contract, and in reliance upon this belief the defendant entered into the contract, the plaintiffs then would be estopped from maintaining this action. Or if plaintiffs requested the Lake Shore company to cede to the defendant twenty-five feet of said right-of-way, for the purpose of constructing and permanently operating defendant’s railroad thereon, and the defendant knew of such request, and in reliance thereon entered into the said contract, and the plaintiffs gave no notice to either company that such contract would be treated as an abandonment, then the plaintiffs are es-topped. But if the plaintiffs had no knowledge that a contract was entered into for a permanent occupation by the Pennsylvania company of this twenty-five feet for its railroad, or that such contract was about to be entered ipto, or if the defendant had no knowledge of the alleged acts or declarations of the plaintiffs, or if it had reason to believe that an abandonment would be claimed by the plaintiffs, then the plaintiffs are not estopped.”

The defendant took exceptions to portions of this charge. An extended discussion of the exceptions would not be profitable. We see no error in the charge prejudicial to the defendant. Upon the estoppel pleaded in the answer, it follows the case of Goodin v. The Canal Co., 18 Ohio St. 169, and the definition of an estoppel in pais, contained in the first paragraph above quoted, to which the defendant excepted, is adopted literally from the opinion of the court in the case of Ensel v. Levy, 46 Ohio St. 255. We have been unable to discover that any part of the charge is in conflict with the cases of Smiley v. Wright, 2 Ohio, 506, Resor v. O. & M. R. R. Co., 17 Ohio St. 139, Rosenthal v. Mayhugh, 33 Ohio St. 155, relied on by counsel for the plaintiff in error.

In Smiley v. Wright, a widow who was entitled to dower in land sold at public sale, was present at the sale, and agreed that the land might be sold free of her dower. It was publicly proclaimed in her presence that the land would be sold free of her dower, and it was so sold. It sold for a larger sum on that account than it otherwise would. She afterwards brought suit for dower against the purchaser, and she was held estopped. By her agreement and conduct she induced the purchaser to buy the land, and pay for it more than he would otherwise have done.

In Resor v. The O. M. R. R. Co., “ a vendor put his vendee into possession, and executed and placed in his hands a deed of conveyance for the land sold with - an understanding between them that the deed should not be considered as delivered, or become effectual, until the purchase money should be paid; and the vendee subsequently put the deed upon record, and, without paying the purchase money, mortgaged the land to Iona fide mortgagees for value, and without notice; ” and it was held that the vendor was estopped, as between him and the mortgagees, from denying the delivery of the deed, or asserting any claim to the land. In other words, the vendor clothed the vendee with all the evidences of title, enabled him thus to appear of record as the owner, and the mortgagees acted upon his title thus appearing of record. The vendor’s conduct amounted to a representation to the mortgagees that the vendee was the owner of the land, upon the faith of which, the mortgagees loaned their money. As was said by Welsh, J., in the opinion, the vendor “ by his own acts, in putting. the land and deed of conveyance therefor into the possession of the company, plainly said to the world that the company was the owner of the land, and might safely be dealt with as such. As much so as if he had stood by and told the mortgagees that the vendee was the owner.”

In Rosenthal v. Mayhugh, a woman whose husband had deserted her, and who had not been heard from for seven years, under,the belief that he was dead, joined with the children, to induce a sale of land which belonged to him, in representing that he was dead, and they thereby effected the sale. She also as widow, joined with the children in a conveyance in fee with covenants of warranty, and the contract was fully executed by the purchaser. It was held, that although the husband was still living, she was estopped from treating the contract as a nullity, and, upon the death of her husband, from asserting her right to have dower assigned her.

In each of these cases, all the elements of an estoppel as defined by the court in its charge, were present.

It is, we think, by these, and other adjudications in this state, fully established that in order to estop an owner from asserting title to his property, by his declarations or conduct, it must appear, that he was, at the time, apprised of the true state of his title, that he knew or had reason to believe his declarations or conduct would be acted upon by another, that they were acted upon by such other person in ignorance of the title, and that such person will be injured by allowing the truth of the admission by the declaration or conduct so acted upon by him, to be disproved; and, while an owner, who stands by, and without objection sees a railroad constructed on his land, will, after the road is completed, or large expenditures have been made thereon upon the faith of his apparent acquiescence, be estopped from reclaiming the land, or enjoining its use by the railroad company, he is not thereby estopped from claiming compensation for its value.

The charge of the court is in conformity with these rules. But the several instructions requested by the defendant, on the subject, which were refused, are not. Each lacks some essential ingredient of an estoppel. They are as follows:

“1. If the jury find from the evidence that the plaintiffs were the owners of the land in question at the time of the construction of the defendant’s railroad thereon, and knowing that the same was being built by the defendant upon the belief that it had the title thereto, stood by and made no objection or protest to the defendant against its construction upon their said land, then the plaintiffs are estopped from making their claim in this action, and your verdict must be for the defendant.”

“ 2. If the jury find from the evidence that the plaintiffs induced the Pennsylvania Company to locate its railway upon their property, and knew that the defendant in so constructing its road relied upon its title to said way and its right to so construct its road, then the plaintiffs are estopped from asserting any claim to any portion of said land, and your verdict must be for the defendant.”

“ 3. It was competent for these plaintiffs to waive the right' to insist upon an abandonment, and if the jury find that the plaintiffs requested the Lake Shore company to cede to the defendant twenty-five feet of the said right-of-way for the purpose of erecting and maintaining its track thereon, and made no claim to either company, and gave no notice that such action would be treated as an abandonment, the plaintiffs would now be estopped to claim that such ceding or grant was an abandonment.”

“4. If the plaintiffs knew of their rights, and- knowing-them, permitted the Lake Shore company to grant the right to the defendant herein to build, maintain and Operate its track, on the belief that it had the right so to do, and the plaintiffs saw the defendant spending money in making valuable and permanent improvements thereon without knowledge of plaintiffs’ rights, and the plaintiffs kept silent until after the expenditure and improvements were made, they will be estopped from claiming either compensation or damages, and your verdict must be for the defendant.”

The first instruction is in conflict with Goodin v. Canal Co., supra. The second, omits the essential elements, that the plaintiffs knew of their own title, and' the defendant was ignorant of it. Besides, there was evidence tending to prove that the defendant located and constructed its road on lands belonging to the plaintiffs, other than that for which they were claiming compensation in the action; and the instruction, if given, would have been misleading, for it would have authorized the jury to find the estoppel, if the plaintiffs induced the defendant to locate its road on any of their property. The instruction, if otherwise correct, should have •been limited to the property for which the plaintiffs were seeking compensation. The defect in the third instruction, is, that it is not made necessary to the estoppel, that the request of the plaintiffs should have been acted upon by, or have influenced the conduct of, either company. And the fourth, is not substantially different from the first.

Finding no error in the record,

The judgment is affirmed.


source: Caselaw Access Project

author: Minshall, C. J.

license: Public Domain

text:
    Railway v. Shields.

      Master and servant — Negligence—When master liable for that of servant.

    1. The law requires of those who use dangerous agencies in the prosecution of their business to observe the greatest care in the custody and use of them.
    2. This duty cannot be shifted by a master from himself to his servants, so as to exonerate him from the negligence of the servant in the use and custody of them. Where they are so entrusted, the proper custody, as well as the use of them, becomes a part of the servant’s employment by the master, and his negligence in either regard is imputable to the master, in an action by one injured thereby. And where the injury results from tbe negligence of the servant in the custody of the instrument, it is immaterial, so far as the liability of the master is concerned, as to what use may have been made of it by the servant.
    (Decided May 20, 1890.)
    Error to the Circuit Court of Preble county.

      Charles Darlington, for plaintiff in error.
    The question, in cases of this kind, is not whether the serwant, at the time of committing the injury, was in the employment of the master, but was the injurious act one within •the scope of his employment; was it an act which he was «employed to do, either express or implied. Did his contract of service with the company call for the performance of the act in question ? If it did, then the company is liable if he performed that act negligently, or if in the performance of it he acted wilfully and wantonly. But if the act was not one contemplated by his contract of service, then as to that act he stands in relation to the company the same as a stranger. It is not the act of the company, because he was not hired to do that act. The fact that the conductor was, ar the time he placed the torpedoes on the track, in the service of the company, is not the one upon which the question of liability depends. That is to be determined by ascertaining whether the proximate cause of the injury, the placing and leaving the torpedoes upon the track, under the circumstances of this case, was an act which the terms of his contract with the company justified him in doing. We claim that the authorities, both English and American, support our position in this case. McMannus v. Crickett, 1 East. 106; Craft v. Allison, 6 E. C. L. Rep. 528; Mitchell v. Crassweller, 13 C. B. 235; Limpus v. Omnibus Co., 1 H. & C. 526; Hurlstone, &c., Rep. Exchequer, vol. 3, 254; Story v. Ashton, Law Rep. C. Q. B. vol. 4, 475; Venables v. Smith, L. R. 2 Q. B. 279; Morier v. Railway, 31 Minn. 351; Smith on Master and Servant, 151; Thompson on Neg., 2 vol., 885, 886; Sher. & Redf. on Neg., sec. 62, 63; Cooley on Torts, 533, et seq.; Railway Co. v. Wetmore, 19 Ohio St. 110; McClennaghan v. Brock, 5 Rich. L. 17; Adams v. Cost, 62 Md. 264; Stone v. Hills, et al., 45 Conn. 44; Garretzen v. Duenkel, 50 Mo. 104; Rounds v. Railway, 64 N. Y. 129; Hoffman v. Railway, 87 N. Y. 25; Quinn v. Power, Id. 535; Mott v. Ice Co., 73 N. Y. 543; Sheriden v. Charlick, 4 Daley 338; Arasmith v. Temple, 11 Bradwell 52; Gilliam v. Railway, 70 Ala. 270; Diehl v. Ottenville, 14 Lea (Tenn.) 198; Schmidt v. Adams, 18 Mo. App. 434; Snyder v. Railway Co., 60 Mo. 413; Coal Co. v. Heeman, 86 Pa. St. 418; Courtney v. Baker, 37 N. Y. Sup. Ct. 249; Railway Co. v. Epperson, 26 Ill. 72; Williams v. Pullman Palace Car Co., 3 Southern Reporter 613; Angell & Ames on Corporations, sec. 388; Harriman v. Railway, 45 Ohio St. 11; 12 Allen, 49; Marion v. Railway, 59 Ia. 428; Railway v. Young, 21 Ohio St. 518.

      Poos, Fisher $ Poos, for defendant in error.
    Counsel for plaintiff in error has devoted his entire attention in contending for a rule which no one disputes, and which is good law when applied to a proper case. The case at bar contains other material conditions than those involved in the rule contended for by him, and which other and material conditions are subject to, and governed by, other well recognized rules. The right of the defendant in error to recover, does not depend upon the act of the conductor, as related to the use of the torpedo, but depends upon the infringement of some other right and duty due the defendant in error from the plaintiff in error. Whatever duty was imposed upon the plaintiff in error, to manage, use, control and care for its road, trains and torpedoes, was imposed upon the conductor; and the plaintiff in error was responsible for any failure on his part to perform this duly in any particular. This performance cannot be hedged about or limited by rules of the master. The performance of this duty was part of the master’s business.
    Did the injuries grow out of, or result from, the failure of the servant to perform any duty imposed upon the master ? If so, then, whether or not the servant acted within the scope of his authority, is not material. The act of the conductor, as it related to the use of the torpedo, is one thing; as related to the business of the master, as regards the care, control, management and use of the road, train and torpedo, is quite' another thing. In the first instance the act of the servant only becomes the act of the master under certain conditions : In the second, every act of the servant is the act of the master, and the failure of the servent to do the business, or perform a duty, imposed upon the master, is the failure of the master, and if injury results, the master is liable. See Harriman v. Railway Co., 45 Ohio St. 11, which is identical with the case at bar. The opinion in the Harriman case, and the rules therein announced, are approved by an unbroken line of' the best considered American and English cases. Weed v. Railway Co., 17 N. Y. 362; Railway v. Derby, 14 How., 468; Stephen v. Smith, 29 Vt. 160; Gooddard v. Railway Co., 57 Me. 202; Croaker v. Railway Co., 36 Wis. 17; Bryant v. Rich, 109 Mass. 180; Flint v. Trans. Co., 34 Conn. 554; Railway v. Harman, 47 Ill. 298; Railway v. Dickson, 63 Ill. 151; Cooley on Torts, p. 537, 538 and notes; Heenrick v. Pullman Co., 23 Am. Law Reg. 459.
   Minshall, C. J.

The suit below was an action by Shields, a small boy, prosecuted by his next friend, against The Pittsburgh, Cincinnati & St. Louis Railway Company for an injury caused by the explosion of a torpedo, wantonly and negligently left on its track by one of its servants, at a point where the children and inhabitants living along the line of the track, were daily in the habit of passing with the knowledge and acquiescence of the company. The torpedo, a dangerous instrument, used by the company as a signal in the operation of its road, was picked up by a companion of the plaintiff, carried some distance away and caused to explode by one of them hitting it.' They were ignorant of its character, and at the time, trying to satisfy their curiosity about it. The same accident caused the injury for which the original action in Harriman v. Railroad Company, 45 Ohio St. 11, was brought, the judgment in which was reversed by this court, for error in sustaining a demurrer to the petition; and the petition in the Harriman case is substantially the same as in this case.

After the decision in. the Harriman case, the defendant below died an answer in this case, the second defense, of which and to which a demurrer was sustained, is as follows:

“ The defendant, for its second defense, says, that it carries upon its trains signal torpedoes to be used in addition to its regular signals, when, from fog or other cause, the other signals cannot be seen or relied upon, and that if said torpedo was placed upon the track as alleged in said amended petition, by the employees of this defendant (a fact which defendant wholly denies), that then said employees placed the same upon the track, at a time and place in broad daylight, when and where there was no necessity for the use thereof, or of any signals of any kind whatsoever, and that said use was without the knowledge or consent or authority, express or implied, of the defendant; was against and contrary to its rules and regulations, as said employees well knew, and that said torpedo was so used by them outside and beyond the scope of their employment, and in no wise connected with the control, management or operation of said train of cars or railroad, and was so placed for the accomplishment of an independent and wrongful purpose of their own, in this, to wit: that said employees, or one of them, while said train was taking water at said water-tank, for the purpose of having sport with-some lady passengers who were upon said train, took torpedoes from the place where kept on said train, and without the knowledge of said lady passengers, with whom said employees were well acquainted, placed the same upon the iron rails of the track, in front of the wheels of the caboose in which said lady passengers were riding, with the intention to frighten them by the sudden and unexpected explosion of said torpedoes, which would result with a loud noise by the passage of the caboose over them; when said train started forward, one of said torpedoes failed to explode, and was found as stated in said amended petition.”

The sustaining of the demurrer to this defense is assigned for error. There is also an exception to the ruling of the court in refusing to charge as requested. But this ruling need not be noticed, as it presents simply the same question as is presented by the demurrer to the answer.

It would seem that the question raised by this defense, was presented by the demurrer to the petition in the Harriman case, and determined by the decision of this court therein. The fourth proposition of the syllabus being, in substance, that the railroad company was liable for the negligence of its servant, in placing and leaving the torpedoes on its track at a point where the public, including children, were permitted to pass, “notwithstanding such negligent acts of the servant were wanton, reckless and needless.”

But the counsel for the plaintiff in error think that it was not, and claim that there is clear error in the case for the reason, that the act of the conductor in placing the torpedoes on the track, was a mere caprice of his own, outside of his employment as a servant, and contrary to the rules of the company; and that, therefore, the company is not liable.

We do not adopt this view, and shall show that the negligence of the conductor in this regard, though wanton and contrary to the rules of the company, occurred within his employment, and is, therefore, imputable to the company.

The law requires of persons having in their custody instruments of danger that they should keep them with the utmost care. 1 Hilliard on Torts, 3 ed., 127. “Sometimes,” says Pollock, “ the term ‘ consummate care ’ is used to describe the amount of caution required, but” he says; “it is doubtful whether even this is strong enough. At least, we do not know any English case of this kind (not falling under some recognized head of exception) where unsuccessful diligence on the defendant’s part was held to exonerate him.” Pollock on Torts, 407. See also, Wharton on Negligence, § 851.

And, it stands to reason, that one charged with a duty of this kind cannot devolve it upon another, so as to exonerate himself from the consequences of injury being caused to others by the negligent manner in which the duty in regard to the custody of such an instrument may be performed. Speaking of the absolute duty imposed by statute in certain cases, and, also, of the duties required by common law “ of common carriers, of owners of dangerous animals or other things involving, by their nature or position, special risk or harm to neighbors,” Pollock observes, “ the question is not by whose hand an unsuccessful attempt was made, whether that of the party himr self, of his servant, or of an ‘independent contractor,’ but whether the duty has been adequately performed or not.” Pollock on Torts, 64.

We in no way limit, nor question the soundness of the general rule, which exonerates the master from liability for the acts of his servant done outside of his employment. What has been stated is strictly within the reason and principle of the rule, which is, that whatever the servant is entrusted by the master to do for him, must be done with the same care and prudence that would be required of the master, acting in that regard for himself; if it be the custody of dangerous instruments, he must observe the utmost care.

The inability of the master to shift the responsibility connected with the custody of dangerous instruments, employed in his business, from himself to his servants entrusted with their use, is analogous to, and may be said to rest upon the same principle, as that which disenables him from shifting to an independent contractor, liability fornegligence in the performance of work that necessarily tends to expose others to danger, unless the work is carefully guarded. It seems by the great weight of authority and reason that this cannot be done. See Railroad Company v. Morey, 47 Ohio St. 207, and cases there cited. Also, see, Lawrence v. Shipman, 39 Conn. 586, 589; and Cooley on Torts, 2d ed., 644, 646.

And the relation of master and servant and .that of employer and independent contractor, are, in this regard, treated in one view by Pollock in his work on Torts, as will appear from consulting his work at page 64.

Now, in this ease, it must be observed, that the duty entrusted by the railway company to the conductor in regard to these torpedoes was, not only to use them as signals with the requisite care and caution, but to observe like care and caution in the custody of them, when not in use. The servant’s custody of them, when not in use, was as much a part of his employment, as was the use of them as signals when required. In taking them from the place where they were carried when not in use, and, in mere caprice, placing them on the track for the purpose of frightening the ladies, he was not, it is true, within his employment as to the use of them; but, in so doing, he violated the duties connected with his employment as *the custodian of them, and thereby made his master liable for the consequences of his neglect, in the same manner, and to the same extent, as if it had been done by the company itself.

It is necessary in this, and in all similar cases, to distinguish between the departure of a servant from the employment of the master, and his departure from, or neglect of, a duty connected with that employment. A servant may depart from his employment without making his master liable for his negligence when outside the employment of the master ; and he so departs whenever he goes beyond the scope of his employment and engages in affairs of his own. But he cannot depart from the duty entrusted to him, when that duty regards the rights of others in respect to the employment of dangerous instruments by the master in the prosecution of his business, without making the master liable for the consequences; for the first step in that direction is a breach of the duty entrusted to him by the master, and his negligence in this regard becomes at once the negligence of the master; otherwise the duty required of the master in respect to the custody of such instruments employed in his business, may be shifted from the master to the servant, which cannot be done so as to exonerate the master from the consequences of a neglect of the duty.

To better illustrate the ground of this distinction, we may, for example, suppose a servant, with others under his control, employed with a construction train repairing the track of his master. He may, for a time, quit his employment, and, with his men, go off on affairs of his own. Whilst thus out of the master’s employment, he may build a fire, which, through his negligence, may consume the property of another ; and, in the meantime, loss of life and property may result from a collision with the train negligently left standing on the track. Now whilst, as has been held, the master would not be liable for the loss resulting from the fire, because the act was done outside the servant’s employment, (Morier v. Railway Company, 31 Minn. 351,) yet it is equally certain that, for the loss occasioned by the servant’s negligence in leaving the train on the track, the master would be liable in damages; for the plain reason that, in abandoning the custody of the train, he was guilty of negligence in the employment of the master, whilst, in building the fire, he was not.

That what was done by the conductor contravened the purpose and instructions of the company, in regard to the use of these torpedoes, does not vary its liability for the negligence of the conductor in the custody of them. In discussing the master’s liability for his servant, it is said by Professor Wharton, “ It is not necessary, in order to make the master liable, that there should be specific directions as to the particular act. It is enough if the general relation of master and servant, within the range of such act, exists. The question is simply whether the wrong inflicted was incidental to the discharge of the servant’s functions. It m'ay have been capricious. It may have contravened the master’s purposes or directions. But a master who puts in action a train of servants, subject to all the ordinary defects of human nature, can no more escape liability for injury caused by such defects, than can a master, who puts machinery in motion, escape liability, on the ground of good intentions, for injury accruing from defects of machinery. Out of the servant’s orbit, when he ceases to be a servant, his negligences are not imputable to the master. But within that orbit, they are so imputable, whatever the master may have meant.” Wharton on Negligence, §160; see, also, Wood on Master and Servant, 283; and Cooley on Torts, 632 (539*).

The custody of these torpedoes was within the servant’s orbit. Negligently leaving them on the track was a negligence within that orbit, and therefore imputable, to the master. If a master has a duty to perform and intrusts it to a servant, who disregards it to the injury of another, it is immaterial, so far as the liability of the master is concerned, with what motive or for what purpose, the servant neglects the duty. This is illustrated by the case of Wood v. Railroad, Company, 17 N. Y. 362, which was an action against the company for failure to carry the plaintiff to her destina-y tión with reasonable dispatch. , The delay was caused by the willful act of the conductor in wrongfully detaining the train at a station; and which the defendant claimed exonerated it from liability. But the court held otherwise; it being observed, among other things, in the opinion, that “ The obligation to be performed was that of the master, and delay in performance, from intentional violation of duty by an agent, is the negligence of the master.”

We do not see that this, in any way, conflicts with, the decision in Railroad Company v. Wetmore, 19 Ohio St. 110. There the plaintiff got into a quarrel with the baggage-master of the company about checking his baggage; and, under the influence of anger, the latter struck the plaintiff with a hatchet, and it was held that the company was not liable for the injury. A hatchet is not an instrument of danger, within the rule above stated — it includes only such instruments as are such within themselves. The danger of a hatchet is in the hand and spirit of the man who may use it. If, in this case, the instrument left on the track had been a hatchet, the company would not have been liable to a child who might afterwards have picked it up and been injured by it. For the company would have been under no such duty as to its custody, as it was under in regard to this dangerous explosive.

Judgment affirmed.


author: Dickman, J.

text:
    Gay, Ex’r’x, v. Davey et al.

      Landlord and tenant — Destruction of premises by fire — Payment of rent.

    1. Where a case triable by a jury is submitted to tbe court, and a motion for a new trial on the ground that the finding of the court is against the weight of the evidence, is overruled, if neither party is entitled to judgment on the pleadings, and there is no agreed statement or finding of facts, a reviewing court in reversing judgment because the court below erred in so overruling the motion for a new trial, should remand the case for a new trial, and it is error in the reviewing court to render a final judgment in the case.

      2. Under section 4113 of the Revised Statutes — providing that the lessee of any building, after it has, without fault or neglect on his part, been destroyed or so injured by the elements, or other cause, as to be unfit for occupancy, shall not be liable to pay rent to the lessor or owner thereof — a surrender of the leased premises is a condition annexed to the release of the obligation to pay rent, and is necessary to give the lessee the benefit of the relief provided for by the statute.
    (Decided June 17, 1890.)
    Error to the District Court of Hamilton county.
    The case is stated in the opinion of the court.

      B. P. Lloyd, for plaintiff in error.
    1. To secure the benefit of section 4113, of the Revised Statutes, it is necessary for the tenant to surrender the premises to the landlord. Johnson v. Oppenheim, 55 N. Y. 280: Hilliard v. Gas Coal Co., 41 Ohio St. 662.
    2. The landlord’s entry upon the premises to rebuild, with the full knowledge and tacit consent of his tenant, was not an eviction. Weigh et al. v. Meyers, 64 Ga. 760; Perry, Adm’r, v. Wall, 68 Ga. 70; Lettice v. Honnold, 63 Ill. 335 Lynch v. Baldwin, 39 Ill. 213; Hayner v. Smith, 63 Ill. 430; Oaster v. Henderson, 2 Q. B. 573; Petterson v. Edmenson, 5 Harrington, 372; Sandbacher v. Dick, 51 How. Pr. 518; Proude v. Hollis, 1 B. & C. 8.
    But no defense of eviction was pleaded, and it was not competent for the defendant to prove an eviction. Hites v. Irvine, 13 Ohio St. 283; Ewing v. McNairy, 20 Ohio St. 315; Bridge Co. v. Sargent, 27 Ohio St. 233.
    • Jordan $ Jordans, for the defendants in error.
    1. There is no covenant in the lease requiring Gay to rebuild. He could rebuild, or not, at his pleasure. There was no mutuality in the contract in this regard. Mutuality of obligation is necessary in every contract. Schmidt v. Pettit, 1 McArthurs’ Rep. 179.
    2. The lease was not for the entire building, and the grounds in connection therewith. The entire building, in-' eluding the premises leased to Davey & Allen, were destroyed by fire. It is well settled that where a lease contains no covenant to the contrary, destruction of the subject matter of the demise, will terminate the lease. Graves v. Berdan, 26 N Y. 498; Hilliard v. Gas Coal Co., 41 Ohio St. 662; Womak v. McQurry, 28 Ind. 103; Winton v. Cornish, 5 Ohio 477; Ainsworth v. Ritt, 38 Cal. 89; Alexander v. Dorsey, 12 Ga.-; Kerr v. Merchant's Exchange, 3 Edward’s Ch. 315; McMillan v. Solomon, 42 Ala. 356; Morgan v. Lambert, 3 Barr 444; Stockwell v. Hunter, 11 Met. 448; Shawmut v. Brooklyn, 118 Mass. 125; Taylor on Landlord and Tenant, sec. 520.
    3. The defendants in error are released by the terms of section 4113, Revised Statutes. Johnson v. Oppenheim, 55 N. Y. 280.
   Dickman, J.

On the 7th day of July, A. d. 1879, James P. Gay leased to John R. Davey and A. B. Allen, the defendants in error, certain premises in the city of Cincinnati for the term of three years from that day, the lessees to have the privilege of a further term of two years, commencing with the 7th day of July, 1882. The premises — used for manufacturing purposes — are described as situated in the city of Cincinnati, being three rooms on the front of the first, second and third floors of James P. Gay’s main building fronting on the north side of New street, and the room in the third - story of the addition to the main building; also a strip of ground lying on the west side of the main building, being twelve feet in width on the north side of New street, and running back the same width to the building described as the addition to the main building, the lessor to erect a one-story brick office twelve feet by sixteen feet adjoining the southwest corner of the building on New street, for occupancy by the lessees.

As rent, the lessees were to pay during the term of three years, the sum of $125 per month, payable monthly, commencing on the 7th day of August, 1879, and on the 7th day of each and every month thereafter during such term.

The entire building including the apartments leased to Davey and Allen, was destroyed by fire on the 11th day of December, 1880, but was rebuilt by the lessor, and was ready for occupancy in the early part of January, 1881. When the building was restored, the lessees declined to pay rent from the time of restoration, and the lessor commenced suit in the Superior Court of Cincinnati to recover the rent from January 7, 1881, to May 7,1881.

The lessees set up in defense, that by the terms and provisions of the lease under which they had occupied the premises, it was stipulated, that if the occupied premises were destroyed or rendered untenantable by fire or unavoidable accident, they were not to be required to pay any rent thereafter ; that the premises were totally destroyed on the 11th day of December, 1880; that they did not use, occupy or enjoy the premises at any time thereafter; that the premises were destroyed without any default or neglect on their part; and that the lessees thereupon surrendered possession of the premises to the lessor.

The lessor, in reply, denied' that the premises included in the lease were totally destroyed by fire, and alleged that there was only a partial destruction of the same — the brick office not being materially injured and continuing tenantable; and further denied that the premises were ever surrendered to the lessor by the lessees.

The lease contained the covenant: “ That said lessees will pay said rents, in manner aforesaid, except said premises shall be destroyed or rendered untenantable by fire or unavoidable accident.”

Before the trial, the death of the plaintiff was suggested, and it was ordered that the action be revived in the name of Sarah E. Gay, the plaintiff in error, as executrix of the last will and testament of James P. Gay, deceased.

On the trial, a jury being waived, the court, upon the testimony, found in favor of the plaintiff, and entered judgment for the amount claimed, with interest and costs. The defendants thereupon filed their motion to set aside the judgment, and for a new trial, mainly on the ground that the finding of the court was against the weight of the evidence, which motion the court overruled, the defendants excepted, and by bill of exceptions placed all the testimony on the record. The defendants, on petition in error in the district court, assigned for error, that the judgment rendered by the superior court was against the weight of the evidence, and that the superior court erred in overruling their motion for a new trial. The district court reversed the judgment of the superior court, and proceeding to render such judgment as it considered that court should have rendered, rendered a final judgment for the lessees, John R. Davey and A. B. Allen, and dismissed the action of Sarah E. Gay, executrix. By this proceeding, it is sought to reverse the judgment of reversal, as also the final judgment rendered by the district court.

Material facts necessary to sustain a judgment were in issue between the parties. The main ground upon which the defendants predicated their motion to set aside the judgment and for a new trial, was, that the finding of the court was against the weight of the evidence. When the reviewing court reversed the judgment of the court below for error in overruling such motion, the only judgment which should have been rendered after reversal was, to grant a new trial, as moved for in the trial court. The case in the district court was not one for a final judgment. The lessees were not entitled to judgment on the pleadings. There was no agreed statement of facts, and no finding of facts by the court to which the case had been submitted on the evidence; and it was a case in which the right existed to demand a jury. For aught appearing to the contrary, upon remanding the case for further proceedings, any unavoidable defect in the evidence, on the hearing before the court, might, in furtherance of justice, have' been supplied in a second trial. We are of the opinion therefore, that in reversing the judgment of the superior court, the district court erred in rendering final judgment for the lessees Davey and Allen', instead of remanding the case for a new trial. See Emery's Sons v. National Bank, 25 Ohio St. 360; Miller v. Sullivan, 26 Ohio St. 639; Stivers v. Borden, 20 Ohio St. 232.

In remanding the cause for further proceedings, there are legal principles that claim consideration. Where the tenant who expressly covenants to pay rent, has not protected himself bjr a saving clause in the lease, the proposition is generally true, that he will be bound to continue the payment of rent after the destruction of the tenement by fire or unavoidable accident, and will have no relief against such express covenant. Having by his own contract created a duty or charge upon himself, he will be bound to make it good, notwithstanding any accident or inevitable necessity; because, against such casualty he might have provided by his own contract, if he had thought proper to do so. Linn v. Ross, 10 Ohio 412.

But under the facts, as it is claimed they exist, the defendants' in error insist, that they are discharged from the payment of rent by the stipulation in the lease that, if the premises occupied by them should be destroyed, or made untenantable by fire or unavoidable accident, they were not thereafter to be required to pay rent. If the lease had contained a covenant on the part of the lessor to rebuild the premises if destroyed, and he had róbuilt in accordance with his covenant, the stipulation would not discharge the lessees from liability to pay rent. But, the lessor was under no obligation to rebuild, and the rights of his tenants secured by stipulation in the lease, and accruing immediately upon the destruction of the premises by fire, were not to be kept in abeyance by the contingency of the lessor’s concluding to rebuild. If however, after the building was burned, the owner was requested and induced by the lessees to rebuild for the lessee’s use and occupation, they could not justly avoid the payment of rent, after the building had been restored to its former condition.

Furthermore, it is contended in behalf of the defendants in error, that they, are relieved from the payment of rent under section 4113 of the Revised Statutes. That section reads as follows: “ The lessee of any building which, without any fault or neglect on his part, is destroyed or so injured by the elements, or other cause, as to be unfit for occupancy, shall not be liable to pay rent to the lessor or owner thereof, after such destruction or injury, unless otherwise expressly provided by written agreement or covenant; and the lessee shall thereupon surrender possession of the premises so leased.”

The obvious design of this statutory provision is, to relieve from hardship the tenant who has inadvertently neglected to protect himself by express covenant in his lease, against the necessity of paying rent, after the leased premises have been destroyed by fire or other casualty. But, to secure the benefit of the statute, the tenant must surrender or yield up all - that remains of th'e premises embraced in the lease, without any purpose or intention of resuming possession thereof.. The legislature has absolved the tenant from an onerous obligation, but the burden is removed only upon his compliance with the statutory condition. The statute, in case the buildings are destroyed, does not clothe the landlord with the power of terminating the lease, and if the tenant alone is to have the option of so doing, and may be discharged from the obligation to pay rent, he must give up the possession and control of the premises to him who is entitled to the reversion. If he would! preserve the lease in full force, and avail himself of its advantages, he must also bear any incidental hardship that may arise during its continuance. The clause in the statute for surrendering possession of the premises would be without significance, if not construed as qualifying the provision for a release of the tenant from the payment of rent.

In Johnson v. Oppenheim, 55 N. Y. 280, the court of appeals, in construing chapter 345 of the New York Laws of 1860, which is substantially the same as the statute of Ohio, in pari materia, say:

“ The act provides that, upon the destruction or injury of leasehold buildings so that the same are untenantable, the tenant shall not be liable or bound to pay rent, and that he may thereupon quit and surrender the possession of the premises. The tenancy is not made absolutely to cease, except at the option of the tenant. He is relieved from his obligation, if h'e chooses to -avail himself of the provisions of the act, or he may perform the covenants of his lease and retain the benefit of it; but he cannot have the benefit of the law, and, at the same time, repudiate its obligations. If he elects absolution from its obligations, the act, by necessary implication, imposes as a condition the surrender of the premises.”

Such, is manifestly the correct interpretation of the statute. But it is contended the rule is well settled, that, in the absence of covenant, when the subject-matter of the demise is destroyed by fire or other casualty — as a house, where the land on which it rests is not rented, or apartments in the house, whether for purposes of trade or otherwise — the destruction of the building terminates the relation of landlord and tenant, and there is nothing left to surrender to the owner or lessor. While this may be a correct statement of the general principle, the contract o’f lease, in the case at bar, was entire, and embraced not only the rooms in the destroyed building, but also the one-story brick office, and the strip of ground lying on the west side of the main building. If, -therefore, the building was totally destroyed by fire, and a surrender of the leased rooms became impossible, it could not be so said of the office and strip of ground, if the lessees, after the fire, continued to use and occupy the same until the building was restored and ready for occupancy; As to those portions of the demised premises that were not destroyed, and remained tenantable, there was no apparent obstacle in the way of a surrender as contemplated in the statute.

The final judgment in favor of Davey and Allen should be reversed, and cause remanded.

Judgment accordingly.


author: Bbadbtiry, J.

text:
    Strawn v. Commissioners.

      County Surveyors — Private surveys by — When County not liable therefor.

    A county surveyor who makes a survey for a private individual, upon an employment by him, and records the same without its being submitted to the county commissioners and found by them to be worthy of preservation, does not thereby acquire a valid claim against the county, to be paid for making such record.
    (Decided June 17, 1890.)
    Error to the Circuit Court of Columbiana county.
    John B. Strawn, the plaintiff in error, was surveyor of Columbiana county, Ohio, from January 1,1875, to January 1,1884; and in July, 1885, after his official term had expired, he presented to the commissioners of the county the following account:
    Salem, Golwmbiana Go., 0., July 6, 1885.
    Columbiana County, Ohio,
    To J. B. Strawn, Dr.
    To services as County Surveyor for recording and indexing surveys as prescribed by statutes regulating the same:
    To recording 527 surveys, estimating each of said surveys to contain 6 lines, at 75 cts. . . $395.25
    To recording lines additional, as found in said 527 surveys, and aggregating, after allowing 6 lines to each survey, 2628 lines at 5 cts.....131.40
    To recording 34,740 words and figures, at 6 cts. per 100 ........ 20.84
    To indexing 1,190 names, at 10 cts. each . . 119.00
    $666.49
    To interest from January 20, 1884.
    The services mentioned in this account were rendered by him during his term of office, and after section 1178, Revised Statutes, was amended in 1881. 78 Ohio Laws, 286.

      The commissioners rejected the account, whereupon the plaintiff in error appealed from the order of rejection to the court of common pleas, where a trial was had and judgment rendered in his favor for the full amount of his claim.
    The court of common pleas having stated, separately, its findings of fact and conclusions of law, the case was taken to the circuit court by the commissioners, where the judgment of the court of common pleas was reversed, in as far as it permitted a recovery for recording surveys, and affirmed to the extent that it allowed a recovery for indexing. Thereupon the plaintiff in error brought the proceeding to reverse that part of the judgment of the circuit court which denied his right to compensation for recording private surveys.

      J. A. Ambler and B. S. Ambler, for plaintiff in error.

      Wallace, Billingsley Taylor, for defendants in error.
   Bbadbtiry, J.

The findings of fact made by the court of common pleas show that the plaintiff in error seeks to recover compensation for recording unofficial surveys made by him while he was county surveyor, not for the county on its employment, nor recorded on the order of the county commissioners, but for recording surveys made upon private employment by individuals, after section 1178, Revised Statutes, had been amended in 1881. 78 Ohio Laws, 286. Section 1178, Revised Statutes, as amended in 1881, reads as follows:

“ The county surveyor shall keep an accurate record of all surveys made for the purpose of locating any land or property line, or road line, or corner, whether official or otherwise, made by himself or his deputies, and other surveys deemed by the county commissioners worthy of preservation.....”

Plaintiff in error contends that he is required by the foregoing provision of section 1178, to record not only official surveys, but also unofficial ones made by himself or deputies for individuals under employment by them, and without submitting such surveys to the county commissioners for their approval; and that it being made his duty to record them the county is liable to him for his fees therefor.

The first enquiry is whether it is the duty of the surveyor to record mere private unofficial surveys unless they are first submitted to the county commissioners and a determination by them that they are worthy of preservation.

That all surveys, made by others than county surveyors and their deputies, must be submitted to the county commissioners, and by them declared to be worthy of preservation, before it becomes the duty of the county surveyor to record them, is entirely clear, and extends to surveys “ locating any land or property line, or road line, or corner;” and that such surveys, when made by him or his deputies, are to be recorded without having first been submitted to the county commissioners. The difficulty lies in determining whether the necessity of the approval by the county commissioners extends also to all private, or unofficial, surveys made by county surveyors or their deputies; the relation of the'several clauses of the section to each other favors the theory that it does not, but it is by no means conclusive; and the difficulty of assigning any valid reason why such surveys, when made by a county surveyor or his deputies, shall be recorded without being first submitted to the county commissioner, but if made by other competent surveyors, they must be so submitted before entitled to record, suggests at once a doubt as to the existence of any such distinction.

The office of construction, when a statute is the subject of it, is to ascertain the legislative will. The purpose of this section (1178, Revised Statutes) is to preserve surveys that are of sufficient general importance to make it probable that they may' be wanted in the future, as evidence, and thus worthy of being preserved by a public record, and the statute should receive a construction that will effectuate that intention, if the language employed will reasonably permit it to be done. “ The intention of the law makers may be collected from the cause or necessity of the act, and statutes are sometimes construed contrary to the literal meaning of the words.....The letter is sometimes restrained, sometimes enlarged, and sometimes the construction is contrary to the letter.” Burgett v. Burgett, 1 Ohio, 480.

That the legislature did not intend that all surveys made for individuals should be preserved by record is shown by the fact that at least some of such surveys axe not to be so preserved unless deemed worthy of it by the county commissioners. Thus, the language of the statute léaves no room to doubt that the preservation of surveys, made by others than county surveyors or their deputies, is made to depend upon their being sufficiently important to require it; this would seem to be the true principle to be applied to all private surveys in determining whether they should be recorded or not. It is not readily perceived why a survey made by a county surveyor should be preserved by record, when, if the same work had been done by another, it would only be preserved in case the county commissioners declared that its importance justified that it should be done.

It has been suggested that a presumption arises in favor of the thoroughness of the work done under the sanction of his official oath, by one who has been selected by the public from among his competitors to perform the duties of county surveyor; but this suggestion looses its force in a great measure when it is observed that the manner in which the work is done does not seem to be the criterion established by the legislature to determine its preservation by record, but rather the nature of the work itself as making it probable that it may be useful in the future as evidence to prevent litigation, or in the event of a controversy arising to determine it correctly. It is evident that the legislature did not desire the preservation of any surveys, by whomsoever they might be made, unless some useful purpose would or might be sub-served thereby. The surveyor himself is not vested with power to determine in any case whether a private survey shall be recorded or not, while it is entirely clear that in respect to some private surveys the county commissioners are clothed with that power. The purpose of the legislature being to preserve by record surveys, which, from their nature, are likely to become useful after the lapse of years, by whomsoever they might be made, and having vested no power anywhere to determine the question of their usefulness, except in the county commissioners, this legislative object will be attained by applying the phrase “ deemed by the county commissioners worthy of preservation” to all private surveys, and thus require none to be recorded unless the county commissioners deem them worthy of preservation.

However, were this not so, yet it does not follow that, because a private survey is required to be recorded by a public officer, the public is compelled to pay the fees for recording it. In the case before us no statutory provision has been shown directly authorizing payment out of the public funds of the fees of a county surveyor for recording a private survey; that, however, may not be necessary, for doubtless such an authority might be gathered by construction from the body of a statute in the absence of express words; but in such case the implication of a duty on the part of the public to pay must clearly appear. The fact that a duty is imposed upon a public officer will not be enough to charge the public with an obligation to pay for its performance, for the legislature may deem the duties imposed to be fully compensated by the privileges and other emoluments belonging to the office, or by fees permitted to be charged and collected for services connected with such duty or services, and hence provides no direct compensation therefor, to be paid out of the public treasury. And in the case now under consideration there is no sufficient implication either in section 1178, or in other parts of the statute, that the county is to be held liable to the county surveyor - for work done by him in re cording private surveys not submitted to the county com missioners, and by them deemed worthy of preservation.

Whether the county is liable for the fees of recording a survey, in case it is submitted to the county commissioners and by them deemed .worthy of preservation, or, whether, when a private survey is recorded, the person for whom it was made is liable to the surveyor for the fees allowed by section 1183, Revised Statutes, is not before the court, and, therefore, will not be considered.

Judgment affirmed.