text:
    Brown v. National Bank.

      Rules of construction — Indiana mortgage upon Ohio lands — Estate passed— Foreclosure — Sale in fee-simple. ■
    1. By a well established general rule the use of the word "heirs,” or other appropriate words of perpetuity in a mortgage or other deed of conveyance of lands, is essential to pass a fee-simple estate; but this is not an inflexible rule admitting of no exception or qualification.
    2. Where the language employed in, and the recitals and conditions of, a mortgage plainly evidence an intention to pass the entire estate of the mortgagor as security for the mortgage debt, and the express provisions of the instrument can not otherwise be carried into effect, it will be construed to pass such estate, although the word “heirs ” or other formal word of perpetuity is not employed.
    3. A mortgage was executed in Indiana upon lands in Ohio. By the terms of the mortgage the mortgagors “ mortgage and warrant ” the lands to the mortgagee (without the usual words of succession or perpetuity) to secure the payment of negotiable notes, and provide that upon default of payment .they are to be “ collected by foreclosure of the mortgage or otherwise.” By virtue of an Indiana statute, the words “ mortgage and warrant” are operative to pass a fee-simple estate in the lands mortgaged. Held, the mortgage security does not terminate with the death of the mortgagee; but upon a foreclosure proceeding, after the death of the latter, a sale of the mortgaged premises in fee-simple is authorized.
    Error, to the District Court of Butler county.

      S. C. Gard and Morey, Andrews § Morey, for plaintiffs in error.

      P. C. Conklin and Perd. Vanderveer, for defendants in error.
   Owen, C. J.

In August, 1868, George P. Brown and J. G. 'Weller, being owners in fee-simple of a certain tract of land situated in Butler county, Ohio, executed and deliv-i ered to George Ilerron a mortgage thereon to secure, among others, a note for the sum of $4,000, payable to the order of Herron. The mortgage contains the following recitals:

“ This indenture witnesseth, that George P. Brown and J. G. Weller, ... all of Butler county, Ohio, mortgage and warrant to George Herron, Sr., of Mt. .Carmel, Franklin county, in the state of Indiana, the following real estate in the city of Hamilton, county of Butler, state of Ohio, to wit: ” (Here follows a description of the real estate.)
“Together with all the privileges' and appurtenances to the same belonging to secure the payment, when they become due, of eleven promissory notes of even date herewith, the first ten being for two hundred dollars ($200) each, . . . and the eleventh for four thousand ($4,000) dollars at five years after date, all of the said notes being executed by the aforesaid Geo. P. Brown and J. Geo. Weller, payable to the order of the said George Herron, Sr.,atMt. Carmel aforesaid, . . . with the agreement morever superadded, that if default be tmade in the payment of any of said notes at maturity, then all said notes unpaid at the time of such default shall become due and payable, and to be collected by foreclosure^ of this mortgage or otherwise.”

This mortgage was executed and delivered in the state of Indiana. The cause, which was one to foreclose this mortgage and others subsequent thereto, was tried on appeal in the district court.

It was established as a fact in the case that by the statutes of the State of Indiana, the operative words in a mortgage conveyance are “mortgage and warrant,” and the same convey to the grantee in the mortgage an estate in fee-simple in the lands described, without the use of the words “heirs and assigns forever,” or auy other words of perpetuity.

This mortgage was duly recorded iu Butler county, Ohio, and its record antedates all other liens. Herron, the mortgagee, died before the maturity of the note which the. mortgage was intended to secure.

The plaintiffs in error, Brown and Carr, duly acquired title to the note and mortgage after his death.

Other mortgage liens having attached to the lands, after the death of Herron, the controversy which we are considering, involves the question of the priority of these subsequent liens to that of the Indiana mortgage. Among other things, the district court held that this mortgage conveyed to Herron only a life estate in the lands (by reason of the omission of words of perpetuity), that at his death the estate terminated, and the mortgage ceased to exist as a lien thereon. The decree and order of distribution of which the plaintiffs in error complain were based, chiefly, upon this holding. While other questions arise upon the record .and are discussed by counsel, we place our disposition of the case upon the conclusion we have reached upon this question, and to it alone we address our consideration.

Bid the security which this mortgage created in favor of the holders of the $4,000 note, which it describes, die with the mortgagee ?

Two cases are relied upon to support the conclusion of the court below, that but a life interest was pledged by the mortgage in question to secure the notes of the mortgagors. They are Sedgwick v. Laflin, 10 Allen, 430, and Clearwater v. Rose, 1 Blackf. 137.

In the former case it was held that “ a mortgage of land to an individual, ‘ his successors and assigns forever,’ conveys only a life estate, although it contains a power of sale, which has never been executed, authorizing the mortgagee, in case of default in the performance of the condition, to sell the land and execute a conveyance thereof in fee-simple.” The proceeding was by writ of entry to foreclose the mortgage and clearly required an estate in fee in the plaintiff to support it. An examination of the opinion shows that the conclusion of the court is based upon an early colonial statute, which the court say “ was inserted in each successive revision of the laws of the colony; and so the law of Massashusetts has continued to this day as to all deeds, except conveyances upon such trusts as in their nature require an estate in fee to support them.”

This statute provided “that in all deeds and conveyances . . . wherein an estate of inheritance is to pass, it shall be expressed in these words, or to the like effect, viz : To have and to hold the said house or lands, respectively, to the party or grantee, his heirs and assigns forever.’ ” Concerning the power to sell, the opinion declares: “This power, if it could be executed at all according to the provisions of this mortgage, and had been executed, might perhaps ham transmitted an estate in fee in the land; but not having been executed, that point does not arise. It is, to say the least, very doubtful whether this power is sufficiently definite to be executed at all; for it only authozizes a sale ‘ at public auction, according to the act in such casé made and provided;’ and our statutes contain no regulations on the subject.”

In the case of Clearwater v. Rose, cited supra, Scott, J., says: “That the interest conveyed by the mortgage is only a life estate, there is no doubt. The mortgage contains no words of inheritance; nothing which shows that the grantor intended such a perpetuity of interest as is essential to an estate in fee.”

These cases are relied upon in 1 Jones on Mortgages, sec. G7, to support the statement of the author that a mortgage without the word “ heirs ” in the habendum clause conveys but a life estate, and that the estate is not enlarged by a power of sale and conveyance in fee-simple.

It may be conceded that, as a general rule, the use of the word “ heirs ” is essential to the conveyance of a fee-simple estate in lands. This, however, is not to be accepted as an iron rule, admitting of no exceptions or qualification. Gould v. Lamb, 11 Met. 86.

“ Every deed is to be so construed as, if possible, to give effect to the intention of the parties. It is to be construed most strongly against the grantor. If the intention of the parties, apparent upon the face of the instrument, can not be carried into effect, this object should be attained as far as is possible.” White v. Sayre, 2 Ohio, 113.

In Bobo v. Wolf, 18 Ohio St. 465, Day, C. J., said that, in determining the true construction of a deed, “ we must seek for the real meaning intended to be expressed by the language used in the deed. For this purpose we may read it in the light of the circumstances that surrounded the parties at the time it was executed.”

Looking to the circumstances of the parties at the time of the execution of this mortgage we find them attempting to provide a security for the payment of several thousand dollars, evidenced by negotiable promissory notes.

This is sought to be done by pledging certain real estate by the use of a mortgage deed. We find the mortgagors in the state of Indiana. The form of the instrument used to express their intention is such as the law of that state expressly authorized and prescribed for the conveyance of lands in fee-simple as mortgage security for a debt. We are not unmindful of the principle that deeds intended to convey or incumber an interest in lands situated in one state, executed in another, must derive their vitality from the laws of the former.

It was to give effect to such instruments that it has long been provided in Ohie that: “All deeds, mortgages, . . . for the conveyance or incumbrance of lands . . . situate within this state, executed and acknowledged, or proved in any other state, ... in conformity with the laws of this state, . . . shall be as valid as if executed within this state.” (Sec. 4111, Bevised Statutes.)

It is not our present purpose to construe this provision, or to say that it gives to the instrument before us the same effect it would have had as a mortgage of Indiana lands. We leave that question unconsidered. We are dealing with this feature of the case as one of the circumstances in the light of which the parties were dealing at the time of the execution of this instrumeni;. By its terms the mortgagors declared that they “mortgage and warrant” the lands described, “ to secure the payment, when they become due, of eleven promissory notes,” etc.

This word “mortgage” is one of potent significance. When used as a verb (as it is in the instrument before us), Webster defines it: “1. (Law.) To grant or convey, as property, for the secui’ity of a debt, or other engagement, upon a condition that if the debt or engagement shall be dis-discharged according to the contract, the conveyance shall be void, otherwise to become absolute, subject, however, to the right of redemption.”

It was unmistakably the intention of the parties to this deed that the lands described were to be pledged as a security for the debt. That such security should abide until the debt was paid. It would do violence to the language used to suppose that the parties contemplated that only a life estate was being pledged for that purpose — that the security was destined to die with the mortgagee. It is a familiar principle that whatever changes the evidence of a mortgage debt may undergo, or into whosesoever hands it may pass, the mortgage security still attaches to it and remains an incident of it until it is discharged. Patterson v. Johnston, 7 Ohio (part 1), 227; Choteau v. Thompson, 3 Ohio St. 428; Brinckerhoff v. Lansing, 4 Johns. Ch. 65.

■ These notes were, by their terms, negotiable. This mortgage was plainly intended to devote the lands described in it to the purpose of securing the payment of these notes, into whosesoever hands they should pass. Whatever estate was necessary to secure the payment of these notes must have been intended to pass by this mortgage. This mortgage further provides that if default be made in the payment of any of these notes they are “to be collected by foreclosure of this mortgage or otherwise.” If the recitals of this mortgage to which we have already called attention leave any doubt as to its real purpose, it is solved by the provision last cited. If théterm “foreclosure” was employed in its general legal sense, we see (JBouvier’s Law Die.), that the parties contemplated: “1. A proceeding in chancery by which the mortgagor’s right of redemption of the mortgaged premises is barred or closed forever. 2. This takes place when the mortgagor has forfeited his estate by non-payment of the money due on the mortgage at the time appointed, but still retains the equity of redemption; in such case, the mortgagee may file a bill calling on the mortgagor, in a court of equity, to redeem his estate presently, or, in default thereof, to be forever .closed, or barred from any right of redemption.”

It is more reasonable to suppose, however, that it was contemplated by the parties that the foreclosure proceedings provided for by the mortgage must be instituted in the state and county where the lands were situated. This necessarily involved the sale of the mortgaged premises. (Section 5816, ’ Revised Statutes.) The purchaser un der such a proceeding takes the complete title of both mortgagor and mortgagee. Carter v. Walker, 2 Ohio St. 339; Parmenter v. Binkley, 28 Ohio St. 36.

By no other method known to our law can the mortgagor’s equity of redemption be barred and foreclosed. Thus we see that by the express provisions of this mortgage a purchaser may become invested with a fee-simple estate in the lands “mortgaged” to secure the note which, passed into the hands of the plaintiffs in error.

In the case of Sedgwick v. Laflin, supra, it is practically conceded that if the power of sale which the mortgage contained had been executed, it would have passed an estate in fee in the mortgaged premises. In the case at bar the parties for whose benefit the mortgage was made — the holders of the mortgage debt — are proceeding to execute the express provisions of the mortgage by foreclosing the equity of redemption through a sale of the lands. Instead of an authority against the claim of the plaintiffs in error, the case last cited is in reality one of its strongest supports. Instead of this mortgage being one wherein (in the words of the opinion in the case of Clearwater v. Rose, supra) there is “nothing which shows that the grantor intended such a perpetuity of interest as is essential to an estate in fee,” the conclusion is irresistible that such a perpetuity of interest was not only intended to pass, but it is expressly provided for. This case, therefore, is not found to stand in the way of the construction contended for by the plaintiffs in error.

From the construction of this mortgage which prevailed in the court below, the strange result must follow that the enforcement of the express stipulations of the parties according to their plain and manifest intention is impossible. If but a life estate passed to the mortgagee, and the security was buried with him, one of the vital and important provisions of the instrument — that which provides for the collection of the note upon default of payment — must perish. A proposition so at war with the familiar l-ule which requires us to construe every deed most strongly against the grantor can not prevail.

We ai’e here to enforce, not to defeat, the deliberate agreements of parties.

It is not necessary to assume that the subsequent incumbrancers are charged with notice of the statute of Indiana, prescribing a form of conveyance necessary to constitute a mortgage in fee of lands. There are sufficient recitals in this mortgage to evidence the intention of the parties to it, and the record of it sufficiently charged all persons dealing with the lands with notice of what that intention was.

While we may not be able to harmonize all the adjudications upon this question, the better doctrine seems to be that where the language employed in, and the recitals and conditions of, a mortgage plainly evidence an intention to pass the entire estate of the mortgagor as security for the mortgage debt, and the express provisions of the instrument can not otherwise be carried into effect, it will be construed to pass such estate, although the word “ heirs ” or other formal word of perpetuity is not employed.

The conditions of this mortgage, construed together, plainly bring it within the exceptions to the general rule that the use of the word “heirs” is essential to the conveyance of an estate in fee-simple, or other interest greater than a life estate.

The district court erred in holding that but a life estate was conveyed by the mortgage in question.

This conclusion removes the necessity of considering other assignments of error. The judgment of the district court is reversed, and the cause remanded to the circuit court for further proceedings, in accordance with the above holding.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Forsythe v. Winans, City Solicitor.

      Section Vt'l't, Revised Statutes — Bond for injunction — Contempt of court.

    Error to the District Court of Greene county.

      Charles Darlington, for plaintiff in error.

      James Winans, for defendant in error.
   By the Court.

Where, under the provisions of section 1777 of the Revised Statutes, a solicitor of a municipal corporation briugs suit to enjoin the misappropriation of money by the council, he is not required to give an undertaking, and an injunction so allowed by a court of competent jurisdiction, or a judge thereof, operates without such undertaking being given ; and the members of council, or any of them, violating the injunction after notice thereof has been served upon them, are liable to be punished for the same as for a contempt of the authority of the court,

.Judgment affirmed.


text:
    The Board of Education of Lyme Township v. The Board of Education of Special School District No. 1 of Lyme Township.

      Right of one school district to recover from another taxes erroneously received by latter belonging to former.

    Error to the District Court of Huron county.
    ' John A. Lemmon, for plaintiff in error.

      S. A. Wildman, for defendant in error.
   By the Court.

In each of the years from 1870 to 1875, inclusive, the Board of Education of Special School District No. 1, of Lyme township, Huron county, made a levy for school purposes, which was certified to the auditor of the county, and by him placed on the duplicate against all the lands within the district, except the property of that portion of the Lake Shore and Michigan Southern Railhvay and Western Union Telegraph lines running in and through the district, which, by the mistake of the auditor, were omitted therefrom; and during the same years the Board of Education of Lyme township made levies for like purposes, which were also certified to the auditor of the county, who, by mistake, placed the same, not only on the property in the district of the township, but also upon the property of said railroad and telegraph companies, as part of the property subject to taxation in the township district. The Board of Education of the Special School District now seeks to recover of the board of the township the taxes so collected by the latter, as received to the former’s use. Meld, that the taxes so received by the Township Board were not produced by any levy made by the Board of the Speial District; that there is no privity between the two boards, and the action can not be maintained.

Judgment of the district court and of the common pleas reversed, and judgment for defendant below, and for its costs.


author: Minshall, J.

text:
    Crawford v. Rambo.
    . Riparian proprietors — Rights and duties — Embankments—Floods—Remedy of adjoining owner.

    1 The owner of land situate upon a river, or other running stream of water, has the right to construct embankments thereon for the purpose of protecting it from the currents of the stream, or otherwise benefiting it, subject to the duty of so constructing the same as not to occasion material injury to the lands of others situate upon the stream, where the same may be avoided by the exercise of ordinary care, intelligence, and foresight.
    2. It is his duty, in the first instance, to exercise such prudence and care as an ordinarily carefnl and intelligent man might have exercised, as to whether his proposed embankment would cause material injury to the lands of his neighbor at the time of such floods as might reasonably be anticipated at any season of the year.
    3. By material injury must be understood, an injury resulting in damages of a substantial nature; not merely nominal; and which are, in some cases, awarded to prevent a wrong from ripening into a right by lapse of time. The use of streams and their water is, among riparian proprietors, a matter of common right, and an invasion of the individual right of one, can not be appreciated until some act is done by another in excess of the common right.
    4. Where a riparian owner constructs an embankment upon his own lands, that occasions substantial injury to the lands of a neighbor upon the stream, and which might, at the time, have been anticipated by a man of ordinary prudence and intelligence, he is liable in damages for the injury as occasioned. And where it appears from its subsequent action, though not at the time of its construction, that it does and will continue at ordinary floods to do injury to his neighbor’s lands, it then becomes his duty to abate or so modify it as to avoid such injury, and he is liable in damages for an omission to do so.
    5. Where an adequate remedy in the way of damages can not be had, the court may, in a proper case, order the abatement of an embankment that occasions substantial injury to the lands of another.
    Error to tbe District Court of Muskingum county.
    The original action was brought by the plaintiff to recover of the defendants damages to his lands caused by the construction of an embankment by them on their own lands to prevent the same from being overflowed and injured by the water of the Muskingum river, on which the lands of the parties are situated.
    The common pleas sustained a demurrer to the petition on the ground that it did not state sufficient facts; the judgment was, on error, affirmed by the district court, and this proceeding is prosecuted here to obtain a reversal of both judgments.
    The petition sets forth, at great length, the relative situation of the lands of the parties on the river; the mode and manner in which the embankment has been constructed; that the effect of it since its construction has been, and is, to divert the flow of the water from the lands of the defendants, over which it has always heretofore flowed in times of floods, to and upon the lands of the plaintiff. The effect of the overflow upon the lands"of the plaintiff, he avers, “was to and the same did increase the volume of water on plaintiff’s said lands and inundated and overflowed a large portion of said plaintiff’s lands, and drowned and injured crops and grass thereon, and created rapid and whirling currents thereon, none of which would have happened but for the erection of said embankment by the defendants as aforesaid; and said last mentioned water did wash a considerable portion of the soil off plaintiff’s said lands, thereby rendering them less -valuable for cultivation, and washed gullies and holes in said lands, and floated, lodged, and deposited trees, logs, stumps, brush, trash, and gravel thereon and prevented a considerable portion of the silt or sediment which would otherwise have been deposited on said lands as aforesaid, and the formation and accumulation of accretions along the bank of said river on the south side of plaintiff’s said laud as aforesaid, from being so deposited, formed, or accumulated; and undermined and washed away a considerable portion of the banks of said river on the south side of said plaintiff’s lands as aforesaid, and washed out trees that were gr-owiug on the bank of said river on the plaintiff’s said lands; which said bank and growing trees formed a natural protection to the bank of said river on said plaintiff’s lands against the wash of the waters of said river in its natural course and flow.”
    Eor which he claims damages in the sum of $5,000.
    As a second cause of action he makes in substance the same averments, and asks for an abatement of the nuisance to his lands.

      E. M. Voorhes and E. W. James, for plaintiff in error.

      A. W. Train and F. IT. Southard, for defendants in error.
   Minshall, J.

The question in this case is, whether the . owner of land upon a natural stream of water, so situate that in times of flood it is overflowed by the superabundant water, may, to benefit his own lands, construct an embankment thereon, the natural and probable consequence of which must be, and is, at times of ordinary floods, to cause the swollen current to overflow, erode and destroy the lands of another proprietor thereon. We have so stated the question in this case, because, as we think, the question as to surface water is not involved in it.

The premises of the parties are situate upon a bend of the Muskingum river, those of the plaintiff being upon the exterior and those of the defendants upon the interior of the bend; the included lands being divided between. Rambo on the one side, and the Littles on the other, by a line running a little east of south. It is upon this line, beginning at a point about 180 feet south of low water mark on the interior bend of the river and extending some 2,900 feet thereon, that the embankment has been constructed by the defendants. It serves to protect the lands included by the bend from the violence of the current that flows across the same when the river is swollen by a flood; and was constructed by the united labor and expense of the defendants for their mutual benefit. It necessarily acts as a partial dam to the current when the river is swollen by floods; and, as avei’red, causes the flood water to flow over and upon the lands of the plaintiff with destructive violence, doing him great damage at such times.

It is difficult to see upon what principle the flood-waters of a river can be likened to surface water. 'When it is said that a river is out of its banks, no more is implied than that its volume then exceeds what it ordinarily is. Whether high or low the entire volume at any one time constitutes the water of the river at such time; and the land over which its current flows must be regarded as its channel, so that when swollen by i’ains and melting snows it extends and flows over the bottoms along its course, that is its flood channel, as when, by droughts, it is reduced to its minimum, it is then in its low water channel.

Surface water is that which is diffused over the surface of the ground, derived from falling rains and melting snows, and continues to be such until it reaches some well defined channel in which it is accustomed to, and does flow with other waters, whether derived from the surface or springs; and it then becomes the running water of a stream, and ceases to be surface water.

So that, as we think, it is not material to inquire in this ease what the law is as to surface water, for the facts stated in the petition do not present such a case.

The maxim, Sic ntcre tuo ut alienum non leerlas, would seem to apply with peculiar propriety to a case like this. Each proprietor on a river has a right to the enjoyment of its waters as it flows by his premises,, and the right, also, to modify and limit its current upon his own property as will best subserve his own convenience and notions of propriety ; and he may, therefore, construct and maintain embankments thereon for the purpose of protecting any part of his lands from being injured by the overflow of the river in times of high water; but it is equally clear that this right to deal with the river and to control its current must be exercised with a just regard to the rights of others. He can not, by the construction of embankments or otherwise, divert the waters of the river from his own lands and cause them to flow over and upon those of his neighbor, to the substantial injury of the latter, however beneficial it may be to his own lands, without violating this elementary maxim of justice. There is little or no difference in the authorities upon this subject. Thus, Angel in his work on Water-courses, section 333, says: “Ariparian proprietor may, in fact, legally erect any work in order to prevent his lands being overflowed by any change of the natural state of the river, and to prevent the old course of the river from being altered.” “ But,” he adds at section 334, “ a riparian proprietor for his greater convenience and benefit has no right to build any thing which, in time of ordinary flood, will throw the water ou the grounds of another proprietor so as to overflow and injure them.” To this may be added what is said by Wood in his work on Nuisances, section 350: “While it is true that a riparian owner may erect bulwarks to proteet his property from injury by the stream, yet they can only do this when it can be done without injury to others, either to an owner upon the opposite side of, or to those above or below him on the stream.” He then cites the case of Gerrish v. Clough, 48 N. H. 9, where the defendant had erected a breakwater upon his bank of the river to protect it from injury by the water, but the effect of this was to throw the water against the plaintiff’s laud upon the opposite side, and in high water his land was washed away, and the injury was held to be actionable. And so bin Valley Railway Co. v. Franz, 43 Ohio St. 623, it was held by this court, that “ a railway company, like an individual, may, on its own land and for its own benefit, lawfully cut a new channel for a stream of water, aud turn such stream into such new channel, if thereby no damage is caused to another; but when it so controls aud directs the course of the stream that . . . the water is thus thrown across the old channel and against and upon the land of another? and thereby causes damage to such other, the company is liable for such damage.”

The difference arises as to surface water. In some of the states the rule of the civil, and in others that of the common law, prevails. The. former requires each tenement to submit to the conditions imposed on it by nature, so that the owner of a lower tract can not divert the water that flows to and upon his own from a higher one to the injury of the latter. This rule was recognized by this court in Butler v. Peck, 16 Ohio St. 334, and was adopted as the rule of its decision in Tootle v. Clifton, 22 Ohio St. 247.

The civil law acts upon the maxim that water is descendible by nature, and that its usual flow should not be interfered with, so that its burden, if it be one, should be borne by the land where it naturally flows, rather than by land where it can only be made to flow by artificial means. The common law does not recognize this principle as to surface water, but permits any one to protect his own premises from it as he may choose to do, without becoming liable to others injured thereby; or, ihore properly, it does not regard it as an injury to do so, whatever inconvenience or loss may result to others therefrom. It is not necessary, as we have said, to discuss the merits of either system in this case, as the injury complained of does not arise from au interference with the flow of surface water.

The maxim of the civil law, Aqua currit et debet currere ut currere solebat, applies generally to running water, in the common, as well as in the civil, law, subject to such reasonable qualifications as the interests of agriculture require and the enjoyment of private property will permit. Barkley v. Wilcox, 86 N. Y. 140. As each owner has the right to protect his own lands from the violence of the current, or to improve the same, by the erection of .embankments, and, as a rule, this can not be done without increasing to some extent the flow upon the opposite side, it follows that this must be permitted to some extent by all owning lands upon the stream, or the right can not be exercised by any one of them. Such a rigid application of the principle of the maxim would materially impair the interests of agriculture iu some, if not all, of the- most fertile valleys of the state, without any necessary requirement on the part, if not to the detriment, of private property.

It is true, as a rule, that every invasion of a private right imports ail injury for which the law will allow a recovery of nominal damages at least, for the purpose of maintaining the right, and preventing the wrong from ripening into a right by lapse of time. Tootle v. Ctifton, supra; Sedg. Dam., ch. II.

As a rule the infringement of a right can be determined without regard to the damages that may have been occasioned, the injury and the damage being plainly separable. But this is not so plainly the case among riparian proprietors. They have a common right in and over the waters of the same stream, and the invasion of the individual right of one in the subject of their common enjoyment can not be determined until some act is clone by another that is in excess of the common right of all in the same subject. So that in such cases, before an action can be brought by one riparian proprietor against another for an infringement of the former’s right as such proprietor, he must show that he has been substantially damaged by the act of the latter. This was the rule applied to the deepening of waters in streams by mill-dams, in the cases of Cooper v. Hall, 5 Ohio, 320, and M’Elroy v. Goble, 6 Ohio St. 187; and was applied by analogy to the corrupting of air by smoke in Columbus Gaslight and Coke Co. v. Freeland, 12 Ohio St. 392. And we, see no good reason why it should not be applied in cases like the present, where an embankment is constructed by one for the protection of his land upon a stream, all others owning lands upon it having, for the same purpose, a like right; and the public having the same general interest in the encouragement of agriculture that it has in mills. The principles of an enlightened system of jurisprudence should be made to vary with circumstances, and be so. applied as to meet the wants and condition of a people. It is with this qualification that, as has been frequently observed by its courts, the common law has been adopted in this state.

But the argument of the learned counsel for the defendant, drawn from the interest of agriculture, goes too far, when, as they seem to claim, one private owner upon a stream may, for his own benefit, erect an embankment that will cause its water in times of ordinary floods to overflow and destroy the lands of his neighbor. Unless this right to erect an embankment be limited, as above stated, what limit could be set to the exercise of a similar right in any other case? The right of private property, so carefully guarded in the fundamental law against public encroachment, might be wholly destroyed by that of individuals. If the general interests of agriculture require the taking of private property for the consti’uction of levees, there is ample power in the legislature to authorize this to be done by some general statute making provision for compensation to owners for damages sustained.

But as the effect of a cex’tain embankment acting upon the waters of a stream, when at its flood, can not be known with cex’tainty by a man of ordinary knowledge and skill until the experiment has been made, it must follow that when a px’opxdetor constructs an embankment for the benefit of his own land he should not be held liable for its unforeseen results to his neighbor, if at the time he constructed it he exei’cised the care and skill of an ordinarily skillful and intelligent man. It was upon this principle that the case of Railroad Company v. Carr, 38 Ohio St. 448, was decided. The duty, however', of a land-owner upon a river, in making changes thereon fox his own benefit, to exex’cise reasonable care and caution not to injure others, “ both in the inception and execution of the work,” and his liability to the party injrved for his omission to do so, is fully recognized in the first two propositions of the syllabus.

After, however, the occurrence of an ordinary flood has shown the tendency of the embankment at such times to occasion injury to an adjacent proprietor’, and that its effect at each recurring flood will be to cause additional injury, the duty on his part at once arises to obviate the cause of the injury; and if he fails to do so his liability, from such time must, upon principle, be the same as it would have been could he have foreseen the result in the first instance. He can not, by the exercise of care and dilligence in the first instance, acquire the right to continue a nuisance to the lands of his neighbor. Care and dilligence iu constructing the embankment can only exonerate the party building it from such damages as were unforeseen at the time. The liability that may arise from a continuance of the cause of injury, after its character becomes apparent, was not presented in Railway Co. v. Carr, supra, as that action was simply brought for damages that had been occasioned to the crops of the plaintiff below, at the flood of August 1, 1875.

As to whether the plaintiff' is entitled to relief upon his second cause of action, it is sufficient to say, that in a proper case, on a final hearing, a decree may be entered for the abatement of a nuisance. But it necessarily depends upon a variety of circumstances, whether such a decree will be entered. In the first place equity requires that the plaintiff shall have acted with promptness in objecting, and in taking, steps to enforce his objection, upon receiving notice of the defendant’s structures and erections, which are sought to be abated, if the circumstances are such that the defendant would be unnecessarily prejudiced by the plaintiff’s delay; and the injury must be of a substantial and permanent nature, and not capable of an adequate compensation in damages. 3 Pom. Eq. Juris., § 1359. It is sufficient, however, in this regard, that the damages are of such constant and frequent recurrence, that no adequate compensation can be made thereby. Wood on Nuis., § 778.

Judgments reversed, and cause remanded to circuit court, with directions to overrule the demurrer to the amended petition, and for further proceedings.