author: Spear, J.

text:
    Blair v. Newbegin et al.

      Action in Ohio by judgment creditor of Kansas corporation — To enforce liability of stockholder, — Corporation need not be made party — Action in one county — Summons may issue upon stockholders in other counties, when.

    1. An action may be maintained in Ohio by a judgment creditor of a dissolved Kansas corporation (other than railroad, charitable or religious), to enforce the individual liability of stockholders without making the corporation a party.
    2. Such action may be maintained against one or more stockholders upon whom service can be had within the state. And where such action has been properly brought in one county, summons may issue and service be had upon other stockholders, residents of other counties of the state.
    (Decided January 21, 1902.)
    Error to the Circuit Court of CraAvford county.
    The action belotv Avas begun by Henry Newbegin, in the court of common pleas of Crawford, against Elias Blair, W. A. Graham, L. P. Gage, and Ralph M. Lockwood and L. L. Stoddard as executors of J. C. Lockwood, deceased, to recover against them upon their statutory liability as stockholders of the Western Investment Loan & Trust Company, a Kansas corporation, the said Newbegin being a judgment creditor of that corporation. Summons was served upon the defendant Blair in Crawford county, (which was the county in which he then resided), on defendant Gage in Lake county, on the executors of Lockwood in Erie county, and on defendant Graham in Muskingum county. Motions to the jurisdiction of their persons were interposed by each one of the nonresident defendants severally, which, being overruled, the defendants severally filed demurrers to the petition, and the several amendments thereto, and those being overruled, severally answered, taking issue upon various grounds. Replies were filed to new matter and trial had. The court found in favor of plaintiff against all defendants and that there was due from them jointly and severally, as principal and interest, the sum of $2,598.47, and judgment was entered for that amount and costs in favor of plaintiff.
    On error to the circuit court by the defendants, judgment was entered in favor of the executors of Lockwood and they were dismissed from the case. In all other respects the judgment below was affirmed. Defendant Blair brings the case to this court on petition in error, and the defendants in error, Gage and Graham, by cross-petition. Further facts will be stated in the opinion.

      Stephen R. Harris, for plaintiff in error, cited the following authorities:

      Murdock v. Ratcliff, 7 Ohio (pt. 1), 119; Merrill v. Lake, 16 Ohio, 374; Dunbar v. Harrison, 18 Ohio St., 25; Warner v. Callender, 20 Ohio St., 190; Tarbell v. Griggs, 3 Paige Ch., (N. Y.) 207; McElmoyle v. Cohen, 38 U. S. (13 Pet.) 312; Walser v. Seligman, 13 Fed. Rep., 415; Howell v. Bank, 52 Kans., 133; Bank v. Magnuson, 57 Kans., 573; Pierce
      v. Security Co., 55 Pac. Rep., 853; Buchanan v. Roy, 2 Ohio St., 251; Cook on Stockholders, Section 223; Heaton v. Eldridge, 56 Ohio St., 87; Wyatt v. Moorehead, 7 Dec., 380; 4 N. P., 435; Nimick v. Mingo Iron Works, 24 Central Law Journal, 522; Fowler v. Lamson, 34 N. E. Rep., 932; Errickson v. Nesmith, 15 Gray, (Mass.) 221; Bank of W. Va. v. Adams, (Pa.) 534; Morgan v. Neville, 74 Pa. St., 52; Waldron v. Ritchings, 5 Daly, 288; Slegel v. Robinson, 56 Pa. St., 19; Ludlow v. VanRensallear, 1 Johns., 95; Post v. Railroad Co., 114 Mass., 341; Bank v. Rindge, 154 Mass., 203; Tuttle v. Bank, 161 Ill., 497; Bank v. Francklyn, 120 U. S., 747; Terry v. Little, 101 U. S. 216; Youngstown v. Moore, 30 Ohio St., 133; Penn v. Cox, 10 Ohio, 34; County of Morgan v. Allen, 103 U. S., 508; Hatch v. Dana, 101 U. S., 205; Sawyer v. Hoag, 84 U. S. (17 Wall.) 610; Sanger v. Upton, 91 U. S. 56; Upton v. Tribilock, 91 U. S. 45; Webster v. Upton, 91 U. S., 65; Hawkins v. Glenn, 131 U. S., 319, Patterson v. Lynde, 106 U. S. 519; Pollard v. Bailey, 87 U. S., (20 Wall.) 520; Leucke v. Treadway, 51 Mo. App., 507; Ogilvey v. Sherwood, 3 McCl., 405; Claflin v. McDermott, 12 Fed. Rep., 375; Walser v. Seligman, 13 Fed. Rep., 415; National Tube Works Co. v. Ballou, 42 Fed. Rep., 749.

      Frank A. Durban, for Graham and Gage, cited the following authorities:

      Drea v. Carrington, 32 Ohio St., 595; Allen v. Miller, 11 Ohio St., 374; Wells v. Robb, 43 Kans., 201 ; Smith v. Hoover, 39 Ohio St., 249; Abbey v. Dry Goods Co., 44 Kans., 415; Howell v. Bank, 52 Kans., 133; Terry v. Little, 101 U. S., 216; Bank v. Sayward, 86 Fed. Rep., 45; Bank v. Guaranty Loan Co., 87 Fed. Rep., 253; Insurance Co. v. Beard, 80 Fed. Rep., 66 Pomeroy’s Remedies, Section 317; Tompkins v. Craig, 93 Fed. Rep., 885; Smith v. Johnson, 57 Ohio St., 486; Perry v. Turner, 55 Mo., 418; Paine v. Stewart, 33 Conn., 516; Elliott’s Appellate Procedure, page 631; Harkness v. Hyde, 98 U. S., 476; Chandler v. Bank, 49 N. E. Rep., 579; Patterson v. Lynde, 112 Illinois, 196; Nail Co. v. Spring Co., 142 Mass., 349; Fowler v. Lamson, 34 N. E. Rep., 932; Tuttle v. Bank, 44 N. E. Rep., 984; Marshall v. Sherman, 42 N. E. Rep., 419; Morley v. Thayer, 3 Fed. Rep., 737; 23 Am. and Eng. Enc. Law (1 ed.), 896; Nail Co. v. Spring Co., 7 N. E. Rep., 773; May v. Black, 77 Wis., 101; Nimmick v. Iron Works, 25 West Vir., 184; Young v. Farwell, 28 N. E. Rep., 845; Bank v. Farnum, 40 Atl. Rep., 341; Bank v. Rindge, 154 Mass., 203; Kansas Company v. Railroad, 135 Mass., 439.

      Thomas Beer and Henry & Robert Newbegin, for defendant in error, Henry Newbegin, cited the following authorities :

      Bank v. Francklyn, 120 U. S., 757; Bank v. Mining Co., 42 Minn., 327; Cook on Stockholders, (2 ed.) Section 223; Beach on Priy. Corp., Section 148; 3 Thompson on Corp., Section 3018; Mandel v. Swan Land Co., 154 Ill., 177; Bank v. Rindge, 57 Fed. Rep., 279; Rhodes v. Bank, 66 Fed. Rep., 512; Cuykendall v. Miles, 10 Fed. Rep., 342; McCarthy v. Lavasche, 89 Ill., 270; American Co. v. Woodworth, 79 Fed. Rep., 951; Aldrich v. Coal Co., 24 Or., 32; Bank v. Ellis, 166 Mass.; 414; Bell v. Farwell, 176 Ill., 489; Insurance Co. v. Bank, 97 Fed. Rep., 297; Bank v. Reckless, 96 Fed. Rep., 70; Richmond v. Irons, 121 U. S., 27; Whitman v. Bank, 176 U. S., 559; Bank v. Farnum, 176 U. S., 640; Evey v. Railroad Co., 81 Fed. Rep., 294;
      Stewart v. Railroad Co., 168 U. S., 445; Dexter v. Edmands, 89 Fed. Rep., 467; Peter v. Foundry Co., 53 Ohio St., 534; Younglove v. Lime Co., 49 Ohio St., 663; Thompson on Corp., section 3075; Howell v. Manglesdorf, 33 Kan., 194; Jacobson v. Allen, 12 Fed. Rep., 454; Brown v. Trail, 89 Fed. Rep., 641; Grund v. Tucker, 5 Kans., 70; Neil v. Trustees, 31 Ohio St., 15; Carman v. Plass, 23 N. Y., 286; Powers v. Railway, 169 U. S., 92; Smith v. Johnson, 57 Ohio St., 486; Evans v. Iles, 7 Ohio St., 233; Fee v. Iron Co., 13 Ohio St., 563; Allen v. Miller, 11 Ohio St., 374; Mason v. Alexander, 44 Ohio St., 318; Long v. Newhouse, 57 Ohio St., 348; Crawford v. Foster, 84 Fed. Rep., 939; Edgell v. Felder, 84 Fed. Rep., 69; Railroad Co. v. DeBusk, 12 Col., 294; Ferguson v. Oliver, 99 Mich., 161; Reed v. Chilson, 142 N. Y., 152; Ward v. Roy, 69 N. Y., 96; Valley Bank v. Society, 28 Kan., 433; Hentig v. James, 22 Kan., 326; Head v. Daniels, 38 Kan., 1; Flash v. Conn, 109 U. S., 371; Mills v. Duryee, 11 U. S. (7 Cranch), 481; Railway Co. v. Wiggins Ferry Co., 119 U. S., 615; Bicknell v. Comstock, 113 U. S., 149; Warrington v. Ball, 90 Fed. Rep., 464; Huntington v. Attrill, 146 U. S., 657; Werlein v. New Orleans, 177 U. S., 390; Hatch v. Dana, 101 U. S., 205; Stephens v. Fox, 83 N. Y., 313; Nichols v. Stevens, 123 Mo., 96 (45 Am. St. Rep., 514); Clark v. Russell, 97 Fed. Rep., 900; Ferguson v. Sherman (Cal.), 37 L. R. A., 622; Hale v. Lawrence, 21 N. J. L., 714; Railway Co., v. McMullen, 117 Ind., 439; Higgins v. Railway Co., 155 Mass., 176; Herrick v. Railway Co., 31 Minn., 11; McVickar v. Jones, 70 Fed. Rep., 754; Tobin v. Railay Co. (50 Me., 183), 8 Am. Rep., 415; Railway Co. v. Sweeny, 4 Circ.Dec.,11; 8 C. C. R., 298; affirmed by Supreme Court; Warner v. Callendar, 20 Ohio St., 190; Ohio Code, Section 5009; Kansas Code, Section 4116, Rev. Stat. of 1889; Kautzman v. Wierick, 26 Ohio St., 330; Handy v. Insurance Co., 37 Ohio St., 366; Elliott v. Lawhead, 43 Ohio St., 171; Marsden v. Soper, 11 Ohio St., 503; Smith v. Hoover, 39 Ohio St., 249.
   Spear, J.

, Upon the record there arises a question identical with that presented in the case of Kulp v. Fleming, disposed of by this court December 3rd last, and we refer to the report of that case as settling the right of a creditor of an insolvent Kansas corporation, (other than railroad, charitable or religious), to maintain in Ohio an action, based upon proper pleadings, against a single stockholder of such corporation, resident of this state, to enforce the statutory liability arising under the constitution and laws of Kansas.

It remains to inquire whether a joint action against several stockholder’s can be maintained by a judgment creditor of such corporation in our courts, and if it can, whether, the suit being brought in the county of the residence of one, summons may go to the other counties to bring in the nonresident defendants. The entire proposition depends, we suppose, on the proper determination of the question whether such joint action may be brought. If it can be, then, under section 5038, Rev. Stat., summons may be issued to any other county against one or more of the defendants.

The finding of the trial court shows, among other things, that the Western Investment Loan & Trust Company was a Kansas corporation, other than railroad, religious or charitable, and that it was insolvent and had been dissolved more than one year prior to the commencement of the action; that Blair was a stockholder to the amount of $2,500 par value; Gage to a like amount; and Graham to the amount of $5,000; and that they, with the estate of Lockwood, were the only stockholders of the corporation within the jurisdiction of the court; that plaintiff below is a judgment creditor of the corporation to the amount of $1,993.52, and that executions had been issued against the corporation on the judgment and returned unsatisfied, and no part of the judgment has been paid. The action was to recover against the defendants on their individual liability as stockholders, not for unpaid stock, but upon their liability to an additional amount equal to the stock owned by each, and it was found that, by the statutes of Kansas, where such corporations have been dissolved leaving debts unpaid, suits may be brought against any person or persons who were stockholders at the time of such dissolution without joining the corporation in such suit, and if judgment be rendered and execution satisfied, the defendant or defendants may sue all stockholders at the time of dissolution for the recovery of such debt for which they were liable, and the execution upon the judgment shall direct the collection to be made from the property of each stockholder respectively; and if any number of stockholders (defendants in the case) shall not have property enough to satisfy his. or her portion of the execution, then the amount of deficiency shall be divided equally among all of the remaining stockholders and collection made accordingly, deducting from the amount a sum in proportion to the amount of stock, if any, owned by the plaintiff at the time the company dissolved.

The contention against the judgment below is put in varying forms. As to Gage and Graham it is insisted that whether the court acquired jurisdiction over them, depends upon the character of the liability imposed by the Kansas statute. If that is joint, or joint and several, they could be joined; if several only, they could not be joined unless the statutes specially provide for joining them in that particular class of several liabilities. In fact, however, the Kansas statutes provide only for a several action, the liability being to respond only to an individual creditor for the whole amount of. his claim up to the amount of the. stockholder’s holdings, there being no provision, as in Ohio, for joining all the stockholders and making an equitable assessment to pay the corporate debts. As matter of principle, the whole contention rests upon the proposition that the defendants were iu no sense joint contractors; that their minds never met; that they never agreed to become jointly responsible for any debt of the corporation, but that whatever obligation each entered into was a several obligation, and that being so, no joint judgment could be rendered against them, and hence no joint action could be maintained.

It is true that the Supreme Court of Kansas, in Abbey v. Dry Goods Co., 44 Kan., 415, and in Howell v. Bank, 52 Kan., 133, held that “the liability of the stockholder is several and not joint, and when proceeded against by action, each must be sued separately.” The stockholders, it may be conceded, are not jointly liable in the sense that the liability is created by the same original instrument, to-wit: the subscription to the stock, for it is not; nor in the sense that one may be held in an unlimited amount for the default of another. He cannot, in any event, no matter how many others default, be held for more than the amount of his stock. But they are all, in a sense, guarantors for the same obligations and jointly liable in the sense that they are, to the extent above stated, equally liable to the creditors for their payment. And while their liability does not arise upon the same original promise, yet it does arise upon a promise of precisely the same character, and when one has paid, he may have contribution against those who have not paid. These are characteristics of joint liability, although, in the strictest sense, as already stated, the-liability is not joint. Beyond this the stockholders became conditionally liable at the same moment and on the same evidence of indebtedness of the company, to-wit: the note which is the foundation of the action, and alike conditionally liable on the judgment obtained thereon at its rendition, and alike absolutely liable at the same moment on the judgment on return of the execution against the corporation nulla liona, the corporation being insolvent and having been dissolved, These conditions as to liability attached to membership in the corporation, and when the corporation was exhausted the liability of the stockholders, all of them, was fixed and determined exactly alike in all respects save as to amount. All were, therefore, liable for the debt of the corporation thus ascertained, and, though perhaps not technically liable as joint obligors, yet beyond question severally liable, and it is difficult to see why they are not fairly brought within the spirit of our statute (section 5009), which provides: “One or more of'the persons severally liable on an instrument may be included in the same action thereon.”

But, however this may be, giving due effect to the decisions cited as settling the question for the state courts of Kansas, do they settle it for the courts of Ohio? The Kansas statute already quoted provides that suits may be brought against any person or persons who were stockholders at the time of the dissolution, and then provides that where execution has been satisfied, the defendant or defendants may sue all who were stockholders for contribution and it is further provided that a creditor may sue any stockholder severally. If this procedure were followed in this case and recovery and collection had against Blair (the defendant in whose county the suit was commenced), he might sue the other two severally for their respective shares; or if Blair’s liability did not satisfy the plaintiff’s claim, he (plaintiff) might sue either of the other defendants severally, and if there still remained something due on his judgment, he might sue the remaining defendant, thus leading to a multiplicity of suits. Indeed, it would seem, also, that plaintiff might on this theory, maintain a separate suit against each stockholder at the same time. Such results would be at war with the spirit of our law. Not only is it required in a suit against a stockholder of an Ohio corporation, that all other stockholders upon whom seiwice may be had in the state be brought in, but by numerous provisions of statute is it made manifest that where no unjust results will follow, and where one judgment or decree may end a controversy, all persons who may be even remotely interested in the final result, should be, or must be, made parties so that a speedy end may be had to the litigation. True, our statute requires, as to suits against stockholders of an Ohio corporation, that the corporation be brought in.' The statute of Kansas, however, which gives effect to the stockholder’s contract, dispenses with that formality; so that the right to have the corporation before the court does not attach to the stockholder’s liability; such right does not pertain to his position as a stockholder; and it would seem that, in a case like the one at bar, the presence of the corporation would be a mere formality. A final judgment has been taken against it; it has been dissolved and its, property appropriated; and it is apparent that its presence as a party could not avail either litigant in any aspect of the case. True, also, is it that the other creditors, if such there be, are not parties. But here, too, it is not perceived that their absence can work prejudice to any of the defendants, inasmuch as the statute of Kansas, the law which gives character to the liability of the stockholders, and determines the substantive rights of all the parties, in terms permits one creditor to sue for himself, and protects the stockholder, where his statutory liability has been exhausted, from subsequent suits of other creditors. These matters all pertain to the legal rights of the parties, and for a determination of such rights, we look to the law of the jurisdiction where the liability accrued. Not, so, however, necessarily with respect to the manner and means by which those rights are to be enforced. These are matters of procedure only. They relate, not to the substantive rights of the parties, nor to the rules of law upon which their respective claims are to be ultimately decided, but to the form of action and method of conducting it. So° that, if the subject of the litigation can, consistent with the- rights of the parties, be determined in one action, no reason is apparent, under the spirit of our laws, why such action cannot be maintained. In this manner the substantial rights of the parties are enforced, not as matter of comity, but because of a contract liability entered into in another state, and made enforcible by the laws of that state. But, in thus giving effect to the law of a sister state as to matter of liability and the right to recover, we are not required to adopt the methods of the courts of that state in working ont results either upon the ground of comity or otherwise. But even the Kansas statute does not undertake to provide any form of action. It merely provides that suits may he brought against any persons who are stockholders, and in N. Y. Life Ins. Co. v. Beard, 80 Fed. Rep., 66 (U. S. Cir. Ct., Dist. of Kan.), it is distinctly held that the provision above stated contemplates “a proceeding either at law or in equity, as the facts may require, and that, while the liability is a severable one against each stockholder, yet to avoid a multiplicity of suits, a bill in equity may be maintained by judgment creditors against a number of the stockholders to- enforce this double liability, and at the same time their liability for any unpaid stock.” Foster, J., in the opinion, observes: “There is a severable liability imposed on each stockholder, and doubtless the creditor could proceed at law against any single stockholder; but it does not follow that this remedy is necessarily exclusive, and I do not understand that the Supreme Court of Kansas has so held in Abbey v. Dry Goods Co., 44 Kan., 415, or in Howell v. Bank, 52 Kan., 133. If a party has a plain and adequate remedy at law, equity will not interfere. Among the reasons, however, which justify a resort to equity, is that it prevents a multiplicity of suits at law.” Much learning on the subject is epitomized by Professor Pomeroy in his work on equity jurisprudence. We quote section 181: “Where numerous actions ' at law are brought, or are-about to be brought, either by the same or different parties, all involving and requiring the decision of the same questions of law or of fact, so that the determination of one would not likely affect the others, a court of equity may, in order to do full justice to the litigants and to avoid great expense, take cognizance and adjudicate upon all the rights and confer all the remedies in one suit, although both the primary rights and the final reliefs are legal. This instance of the concurrent jurisdiction plainly rests upon the arbitrary, unyielding and insufficient modes of procedure in actions at law, and in the ample power of the equitable procedure to adapt its judicial processes and its final reliefs to the circumstances of each case, by bringing in all these parties by means of one suit and decree.” Again, section 243: “The multiplicity of suits to be avoided, which are generally actions at law, shows that the legal remedies are inadequate, and they cannot meet the needs of justice; and therefore a court of equity interferes, and although the primary rights and interests of the parties are legal in their nature, it takes cognizance of them, and awards some specific equitable remedy, which gives, perhaps, in one proceeding more substantial relief than could be obtained in numerous actions at law.” Section 245: “Where the same party has or claims to have some common right against a number of persons, the establishment of which would regularly require a separate action brought by him against each of these persons, or. brought by each of them against him, and instead thereof he might procure the whole to be determined in one suit brought by himself against all the adverse claimants as codefendants. It should be observed in this connection that the prevention of a multiplicity of suits as a ground for the equity jurisdiction does not mean the complete and absolute interdiction or prevention of any litigation concerning the matters in dispute, but the substitution of one equitable suit in place of the other kinds of judicial proceeding, by means of which the entire controversy may be finally decided.” Also section 269 : “The weight of.authority is simply overwhelming that the jurisdiction may and should be exercised either on behalf of a numerous body of separate claimants against a single party, or on behalf of a single, party against such a numerous body, although there is no common title nor community of rights or of interest in the subject matter, among these individuals, but where there is and because there is merely a community of interest among them in the questions of law and fact involved in the general controversy, or in the kind and form of relief demanded and obtained by or against each individual member of the numerous body.” Quoting further, and from section 274: “The jurisdiction has been exercised in the following cases belonging to this class, and in most, if not all of them, it may be regarded as fully settled: In suits by a single plaintiff to establish a common right against a numerous body of person's, where the opposing claims of these individuals .have some community of interest, or arise from some common title; * * * in suits by a single plaintiff against a numerous body of persons to establish his own right and defeat all the opposing claims, where the claims of these persons are legally separate, arose at different times and from different sources, and are common only with respect to their interest in the question involved and in the kind of relief to be obtained by or against each; in suits by a single plaintiff against numerous defendants, parties to a complicated contract, where his rights against each are similar and legal, but would require, for their determination, a number of simultaneous or successive actions at- law.” Mr. Morawetz, in his work on private corporations, section 896, upon the same general subject,- observes: “However, the remedy hy action atlatv does not exclude the remedy by bill in chancery. The scope of the two remedies is not the same. In an action at law, no final adjustment of the rights and equities existing among the stockholders and creditors is possible; in a proceeding in chancery, hoAvever, all rights and remedies can be fully adjusted and protected. The general rule, therefore, is, that, although a creditor may sue the individual stockholder at law to enforce his statutory liability, the courts of equity maintain the jurisdiction for the purpose of enforcing ratable contribution among the stockholders and making just distribution of the proceeds among all the company’s creditors.”

It is further insisted that the right to be sued separately is a right Avhieh inheres in the contract on which the liability of the Kansas stockholder rests, by virtue of the construction of the statutes by the Kansas courts; because when it is held that the stockholders must in that state be sued • separately, the implication follows that they cannot be sued otherwise in any jurisdiction. But the answer to this is that the effect of the Kansas statutes is to make the obligation of the stockholder a contractual one, and an obligation resting upon contract may be enforced in any jurisdiction where service may be had on the party, and the method of enforcement, as we have already found, depends, not upon the law of the state where the contract is made, .but upon that of the state where its enforcement is sought. There can be no vested right in the form of remedy. So that, when a stockholder subscribes to the capital stock of a corporation, he thereby assumes a contractual obligation, with the incident that the creditor may pursue him in any jurisdiction where service may be had upon him, and thus necessarily consents to the maintenance of such form of action as the law where the enforcement is sought may permit. We are aware that there are decisions of courts of high standing, which are in apparent conflict with the conclusion we have reached, but, with due respect, we are not able to assent to the binding force of those decisions as applied to the jurisprudence of Ohio. Among many decisions bearing in greater or less degree upon the questions here discussed, we cite: Umsted v. Buskirk, 17 Ohio St., 113; Railroad Company v. Babcock. 154 U. S., 190; Railway Company v. Cox, 145 U. S., 593; Dennick v. Railroad Co., 103 U. S., 11; Brown v. Trail, 9 Am. & Eng. Corp. Cases (An.), 162; and cases there cited: Weber v. Fickey, 47 Md., 196; Ball v. Reese, 50 Pac. Rep., 875; Jacobson, Rec., v. Allen, 12 Fed. Rep., 454; Ferguson v. Sherman, 116 Cal., 169.

It is further urged that the petition in this case is a mere creditor’s bill in chancery, and' that a creditor’s bill cannot be maintained in this state on the judgment of another state. Not at all. The suit is not brought to reach debts due the corporation. The stockholder is not a debtor of the corporation; he is a debtor of the creditor. The form of the proceeding, it is true, is in the nature of an equitable action. The object is to bring stockholders who are within the jurisdiction of the Ohio court before it in one action, in order, as heretofore stated, to avoid a multiplicity of suits. This is the province of equity; we see no insuperable barrier to the accomplishment of that object in this suit. But the form of action is not of consequence here. Both by the statute of Kansas and by our own, the distinction between actions at law and suits in equity,and the forms of all such actions and suits, heretofore existing, are abolished, and-there is substituted one form called a civil action. The sufficiency of a petition depends upon the allegations and not upon the form. If the action be properly brought, and the allegations of fact sufficient, the form is not of consequence.

We have not adverted to all the numerous propositions of counsel. All have, however, been considered.

The judgment of the courts below is further criticised by counsel for Graham as erroneous in amount, it being insisted that there is no evidence warranting the finding that he was the owner of $5,000 of stock par value. He does not deny having been a stockholder. An examination of the record shows there is some evidence tending to support the judgment in this respect, and it seems apparent that the cause was tried upon the assumption that he was the owner of stock in that amount.

The defendant in error, Newbegin, complains that in computing interest, the court should have given him interest at 12 per cent., that rate being provided in the original obligation of the company and permitted by the law of Kansas, but we are unable to see, that, upon the record here, the judgment should be disturbed in that respect.

The judgment of the common pleas is in form joint against all the defendants. This works no prejudice in the present case because of the fact that, allowing interest against each from the commencement of the action (Mason v. Alexander, 44 Ohio St., 318) the liability of each is greater than the amount of the judgment in favor of Newbegin, and costs. But the judgment below lacks definiteness in respect to its enforcement. An entry will, therefore, be made in this court affirming the judgments below, but,providing, also, for the issue of executions directing the collection from each of the judgment debtors of his pro rata proportion of the plaintiff’s judgment, interest, and of all costs taxed and to be taxed, and providing that if such pro rata proportion cannot be collected from any of the judgment debtors, the deficiency be collected pro rata from the other judgment debtors.

Judgment accordingly.

Minshall, C. J., Williams, Burket, Davis and Shauck, JJ., concur.


source: Caselaw Access Project

author: Burket, J.

license: Public Domain

text:
    Groves et al. v. Groves.

      Consideration in deed one of value — Title comes by purchase— Not competent to show by parol that title came by deed of gift — And thereby change line of descent.

    Where the consideration, expressed in a deed of conveyance is a valuable one, the title comes by purchase, and it is not competent to show by parol, that in fact the title came by deed of gift, and thereby change the line of descent.
    (Decided January 21, 1902.)
    Error to the Circuit Court of Noble county.
    The defendant in error, plaintiff below, filed the following petition in the court of common pleas against said plaintiffs in error, defendants below:
    “For a cause of action against said defendants, the plaintiff says, that she is seized in fee-simple and is in possession of the following described real estate, in which the said defendants claim an estate and interest adverse to the plaintiff, to-wit: Situate in the county of Noble in the state of Ohio and in the Zanesville land district, and bounded and described as follows: — containing in all 192 acres, more or less. Plaintiff further says that she derives her title to said lands and tenements in the following manner: On the-day of--, 1898, one Samuel D. Groves, died seized in fee-simple of the above described real estate, the title to which was acquired by him by purchase, under a deed of general warranty from Joseph Groves and wife, executed April 26, 1875, and recorded in Yol. 21, page 396 of the record of deeds for said Noble county, Ohio. Said Samuel D. Groves died intestate, leaving no children or other heirs to whom said real estate could descend, except plaintiff, who is the widow of said Samuel D. Groves, deceased.
    “Said defendants, John Groves and Elizabeth Lashley, who claim under and through said Samuel D. Groves, deceased, aver and give out by words and speeches, that the plaintiff has but a life estate in said premises, and that the defendants own the remainder, after her decease, in fee-simple, to the great injury and damage of plaintiff and to her said title and possession.
    “Wherefore, plaintiff prays that she may be adjudged the owner in fee-simple of said premises, freed from all claims of an estate or interest therein of the said defendants, by reason of the premises, for costs and all other proper relief to which she may be entitled.”
    The defendants below filed the following answer:
    “Now come the defendants and for a joint answer to the petition of plaintiff say:
    “Defendants admit that said plaintiff, Emma Groves, is the widow of said Samuel D. Groves, and that he, said Samuel D. Groves, died seized in fee-simple of said premises in the petition described, and they admit that said Samuel D. Groves, deceased, derived, title to said premises by deed from Joseph Groves and wife, executed April 26, 1875, and that same is recorded as in said petition set forth. But these defendants aver that said Joseph Groves was the father of said Samuel D. Groves, deceased, as well as the father of these defendants, and that said Samuel D. Groves was a brother of the whole blood of these defendants and that these defendants as heirs at law of said decedent, Samuel D. Groves, are the owners in fee-simple of said premises, subject to a life estate of said plaintiff, to which she is entitled as widow of said decedent, he having, died intestate and without children. That said deed so made by said Joseph Groves to said Samuel D. Groves, whilst it recites a money consideration of the sum of $9,165.00, and aknowledged receipt of same, was in truth and fact a deed of gift; that no money consideration or consideration of value was paid for the same, nor was any to be paid therefor, but on the contrary same was in truth and in fact a deed of gift from his father, Joseph Groves, to his son, Samuel D. Groves, and they therefore deny that said premises came to said Samuel D. Groves by purchase: all of which they can show and claim the right to show by parol proof.”
    To this answer the plaintiff below filed a general demurrer.
    The court of common pleas sustained the demurrer, and rendered judgment in favor of the plaintiff below, quieting her title as against the claims of the said defendants below. The circuit court affirmed the judgment. Thereupon the defendants below, plaintiffs in error here, brought the case into this court, seeking to reverse the judgments of the courts below.

      J. M. McGinnis and D. 8. Spriggs, for plaintiff in error, cited the following authorities:

      Mitchell v. Ryan, 3 Ohio St., 377; Carter v. Day, 59 Ohio St., 96; Brown v. Whaley, 58 Ohio St., 654; 65 Am. St. Rep., 798n.; Kessler v. Railroad Co., 61 N. Y., 538; Wilkinson v. Scott, 17 Mass., 249; 2 Jones on Evidence, page 1053.

      Dye, Frasier & Morris, for defendant in error, cited the following authorities:

      Vail v. McMillan, 17 Ohio St., 617; Bump on Fraudulent Conveyances, 557; Hinde v. Longworth, 1 O. F. D. 125; 24 U. S. (11 Wheat.), 213; Abbott’s Trial Ev., 742; Williams v. Williams, 2 Re. 478 (3 W. L. M., 258) ; Whittaker’s Ohio Code of Ev., 306; Burrage v. Beardsley, 16 Ohio, 442; Patterson v. Lamson, 45 Ohio St., 77; Mitchell v. Ryan, 3 Ohio St., 377; Carter v. Day, 59 Ohio St., 96.
   Burket, J.

One Joseph Groves in the year 1875 conveyed the land in question to his son Samuel D. Groves by deed of general warranty in due form, and which recited that the conveyance was made for and in consideration of the sum of $9,165, paid by said Samuel D. Groves to his father, the receipt of which is acknowledged in the deed by the father.

In the year 1898, Samuel D. Groves died seized of said land in fee-simple under said deed. He left no child surviving him, but left said Emma Groves his widow, and also left said John Groves, his brother, and said Elizabeth Lashley, his sister, both of the Avhole blood. The widow claimed that the land came to her deceased husband by purchase, and that she inherited the same from him in fee-simple under Section 4159, Rev. Stat.; while the brother and sister claimed that nothing was in fact paid for the land by their deceased brother, and that the land was in fact a gift to him by his father, and that the land came to him, not by purchase, but by deed of gift, and having come to him by deed of gift, that it descended to the widow for life only, with remainder to them in fee, under section 4158, Rev. Stat.

If the land came to Samuel by purchase, his widow took it in fee, but if it came to him by deed of gift, she took it for life only, with remainder to his brother and sister.

Upon the face of the deed, as it recites a money consideration, the land came to him by purchase. In this state title to lands may be acquired in four ways, by descent, by devise, by deed of gift, and by purchase. Lands that are not acquired by descent, by devise, or by deed of gift, are acquired by purchase.

At common law a conveyance of real estate as a gift was supported by a good consideration only, but some eminent judges have held that such a deed would be valid without any consideration whatever, but the weight of authority seems not to go to that extent, although sound reason wmuld seem to support it. See the opinion of Judge Welch in Thompson v. Thompson, 17 Ohio St., 650. Blaekstone regards a deed supported by no consideration as of no effect, and as inuring to the use of the grantor only. 2 Blaekstone, 296. On the same and succeeding page he says: “The consideration may be either a good or a valuable one. A good consideration is such as that of blood, or of natural love and affection, wRen a man grants an estate to a near relation; being founded on motives of generosity, prudence, and natural duty; a valuable consideration is such as money, marriage, or the like, which the law esteems an equivalent given for the grant; and is therefore founded in motives of justice.”

From these principles the general assembly of this state, as early as the act of February 22, 1805, 3 O, L., 279, Chase, 515, evolved the deed of gift as mentioned in that act, and all subsequent acts on the same subject. The statute speaks of the deed of gift as being from an ancestor, and the authorities require that a gift of real estate should be supported by a good consideration only, and that the conveyance should be to a near relation of the ancestor. Blackstone seems to regard marriage as a valuable consideration, rather than as a good one, but it is shown in Thompson v. Thompson, supra, that marriage consummated is a good consideration, and marriage to be thereafter consummated, is a valuable consideration. Failure to note this distinction often leads to confusion.

It was held in the Thompson case, that a deed of real estate as a gift from a father to the husband of his daughter was valid, and passed the title to the grantee in fee.

It was also in that case held that marriage consummated is a good consideration, and sufficient to support a conveyance; but it was not determined in that case, or any other that we have been able to find, that the grantor in such case is the ancestor of the grantee, the husband of the daughter, nor that the deed in such case is a deed of gift. Whether under our statute the grantor in a deed of gift must be an ancestor of the grantee by blood, or can be such by marriage consummated, seems to be undetermined.

But be that as it may, it is clear that a deed of conveyance by a grantor to a near relative by blood for no consideration other than natural love and affection, and so expressed in the deed, is a deed of gift under our statute, of descent and distribution. If a valuable consideration, such as money or marriage to be thereafter consummated, is expressed, the title passes by purchase, and not by deed of gift.

The parties by their deed impress upon the title the character which it is to bear in the hands of the grantee, and those coming after him. If they say the consideration is good only, they thereby impress upon the title the character of a deed of gift. If they say that the consideration is a valuable one. they thereby impress upon the title the character of title by purchase.

In this case the deed expresses a money consideration, and the title is therefore on the face of the deed a title by purchase. The brother and sister of the grantee now seek to change the character so impressed upon the title by the grantor and grantee, and to impress a new character thereon, that of a deed of gift. They stand as heirs, and seek to take by inheritance.. They pay nothing, and are what are known in such cases as volunteers. They are therefore bound by the acts of their ancestors in relation to the property which they seek to inherit. “The general rule is that all parties to a deed are bound by the recitals therein, and they operate as an estoppel, and binding both parties and privies in blood, in estate and in law.” 4 Kent, 523.

The same was held by this court in Patterson v. Lamson, 45 Ohio St., 77. The character so impressed upon the title by the parties to the deed adheres to that title, becomes a part of the inheritance, and the heirs are bound thereby; and they can not take from the title a character which it has, nor give to it a character which it has no-t. To do so would be to vary and contradict the deed by parol, and this can not be done. It has often been held in this state, and elsewhere, that when a valuable consideration is expressed in a deed, it is not competent to show by parol that the deed is founded upon' a good consideration. And that when a good consideration is expressed it can not be shown by parol that the consideration was a valuable one. Vail v. McMillan, 17 Ohio St., 617; Burrage v. Beardsley, 16 Ohio, 438; Steele v. Worthington, 2 Ohio, 182; Walker’s American Law, 445.

But while it is true tluit the nature of the consideration, whether good or valuable, cannot be changed by parol, it is equally true that a different consideration .from that expressed may be shown, if not inconsistent with, or repugnant to, the expressed consideration. Thus it may be shown in favor of creditors, that a deed founded upon an expressed valuable consideration, was in fact without any consideration, and therefore liable to be set aside. And a deed founded upon a good consideration only, will usually be set aside in favor of previous creditors; but this is a very different thing from proving a good consideration when a valuable one is expressed, and thereby changing the line of descent.

Counsel for plantiffs in error cite Mitchell v. Ryan, 3 Ohio St., 377; and Carter v. Day, 59 Ohio St., 96, and claim that in those cases the consideration .expressed in the deeds was successfully contradicted by parol.

In the Mitchell v. Ryan case, the deed was made by a father to his absent daughter, and by him put on record. After she had married and died, the question was whether or not she had accepted the conveyance, and the court held that if the deed imposed no burden upon her, as it would not if it was a gift, that the law would presume an acceptance, and for the purpose of that presumption allowed proof that nothing was paid, and nothing was expected to be paid for the land. The character of the title as being one by purchase, was not changed by the parol evidence, but the sole purpose was to aid the presumption of acceptance. So in Harrison v. Castner, 11 Ohio St., 339, the object was not to change the character of the title of the land conveyed by the deed, but to aid in' establishing a contract as to other lands, and as to that purpose, the recital was a mere admission.

In the case of Carter v. Day, lands had come to children by devise from their father, and afterward they made equitable partition among themselves by deeds expressing valuable considerations. This court held that the lands came to the children by devise, and that the deeds cast no new title, but only aparted to each that which he had received under the will of the father. The division made by the deeds was the same in legal effect, as a partition in court, and therefore there was no contradiction of the consideration expressed in the deeds. The lands came not by operation of the deeds, but became vested in the children by devise, and were then divided out among themselves, no new title being cast by the deeds. It was competent to show by the will the real source of title, and to show that the deeds cast no other or new title, but seryed only to apart to the several heirs the title which had come by devise under the will.

Judgment affirmed.

Williams, Spear, Davis and Shauok, JJ., concur.


author: Williams, J.

text:
    City of Mansfield v. Balliett.

      Riparian rights are property — Section 19 of bill of rights — Interference of rights is taking of property, when — Municipality causing sewage to empty into natural loatercourse — Is liable for damages — Liability of municipalities — Personal rights.

    1 Riparian rights are property within the purview of section 19 of the bill of rights, of which the owner cannot be deprived without just compensation, though taken for, or sub- * jected to a public use.
    2. Any actual and material interference with such rights, which eauses special and substantial injury to the owner, is a taking of his property.
    3. Where a municipal corporation, without a legal appropriation in which the riparian owner is afforded an opportunity to obtain compensation, causes its sewage to be emptied into a natural watercourse, thereby creating a nuisance inflicting special and substantial damages on such proprietor, it is liable to an action for the damages so sustained. Rhodes v. City of Cleveland, 10 Ohio, 160, approved and followed.
    (Decided January 21, 1902.)
    Error to the Circuit Court of Richland county.
    The action below was brought in the Richland county common pleas, by W. W. Balliett, against the city of Mansfield, to recover damages for an allegéd nuisance caused by the drainage of the defendant’s sewage into a natural water course that runs by and through lands of the plaintiff situated below the city.
    The plaintiff’s case is stated in the following amended petition, upon which the cause was tried:
    “Plaintiff says that the defendant is a municipal corporation of the second class of the fourth grade, duly organized under the laws of -the state of Ohio. That for more than seventeen years lasit past the plaintiff has been and now i's the owner and in posser:.sion of the following described property in the county of Richland and state of Ohio:
    “The following described premises situate in the township of Mifflin, county of Richland and state of Ohio, and known as the northeast quarter of section number 31, of township number 23,' in range number 17, save and except 50 acres held and owned by the heirs of James Chew, deceased, out of the southwest corner of said quarter section. Also save and except acre in the northeast corner of said quarter occupied by a school house, extending the length north and south 10 rods, and in east and west 10 rods, so long as used for school purposes, and when not used to revert to the grantor. Also 14 acres heretofore conveyed by said grantor to John Brubaker of the southwest corner of said quarter, all of the said land containing 95 acres more or less. And also plaintiff for said time has been and now is the owner and in possession of the following described property in the county of Rich-land and state of Ohio and known as being 120 acres in the northeast quarter of section 32, township 23, in range 17. That there is situate on each of said tracts of land a dwelling house, barn and other necessary buildings, in those of which on the first described tract plaintiff, with his family, for more than seventeen years resided and now resides therein. That the buildings on the second described tract are occupied by a tenant of this plaintiff. That said lands have during all the years plaintiff resided thereon, been used by plaintiff for agricultural, stock and pasture purposes.
    “That there now is, and has been from time immemorial, a natural water way or creek of running water known as the Rocky Fork of the Mohican river passing through and over said lands of plaintiff herein described. That said creek has its source in the western part of the county of Richland, and traverses the township of Madison, passes near the city of Mansfield and over the lands of the plaintiff as hereinbefore stated; that said stream in its natural condition and at ordinary water stage is not more than from five to ten feet in width; that previous to thé grievances hereinafter complained of, said stream came from natural springs of water and was pure and wholesome and of great and continuing value to plaintiff for the purpose of watering his stock, of which he, the said plaintiff, raised a great many, and suitable for. all purposes for which, water, pure and wholesome, is generally used upon such farm, and was so used by plaintiff and his said family and his tenant in the proper conduct of his said farms. Plaintiff further says that about twelve years prior to the commencement of this action the city of Mansfield, a corporation, as herein alleged, composed of about eighteen thousand to twenty thousand people, through its officers and agents, constructed a system of sewage and underground pipes for sewage and drainage of said city, and is adding such pipes thereto each year since, by means of which the sewage of a great portion of said city was and now is conducted to and emptied of their contents, without regard to plaintiff’s rights, into said creek above said plaintiff’s lands and premises herein described; that as a result of this unwarranted and negligent conduct upon the part of the city, the filth, excrement, waste, refuse and unwholesome matter so negligently and willfully emptied by said sewerage into said creek, poisoned, polluted and rendered unwholesome the waters thereof, and made and continues to make them unfit for the use to which said plaintiff had theretofore employed them as herein stated, to-wit: that of watering stock and other domestic purposes. That at times of great rainfall the water of said creek overflows its banks and carries out upon the lands of plaintiff great quantities of filth and putrid refuse, the exutations of said sewers; that by reason of said overflow cesspools of noxious and noisesome matter deposited by said sewers are formed on plaintiff’s land; that for many months each year since, most noxious unhealthy and noisesome odors arise from the waters of said stream, the result of the filth so deposited by said sewers therein, and contaminate the atmosphere over and above said premise's so belonging to the plaintiff, thus rendering plaintiff’s property undesirable for habitation, unpleasant for occupancy and deleterious to the proper enjoyment of the same, and creating a subsisting and continuing nuisance in and upon the premises of plaintiff herein described.
    “Wherefore plaintiff says that by reason of the things complained of herein, he has been particularly annoyed, disturbed and injured in the occupation of his said premises and the actual and rental value of said premises, for the reasons herein stated, greatly reduced, all to his damages in the sum of fifteen hundred dollars.
    “Plaintiff further says that more than sixty days prior to the beginning of this action, he duly filed a claim for damages arising as above stated, with the clerk of said defendant city, but that no settlement or adjustment has been made. Wherefore plaintiff prays for a judgment against said defendant for the said sum of fifteen hundred dollars and for all proper relief.”
    A general demurrer to this petition having been overruled, the defendant answered as follows:

      “For answer to plaintiff’s am ended petition herein defendant says it admits that it is a municipal corporation of the second class of the fourth grade, duly organized under the laws of the state of Ohio; and admits that the creek commonly known as the Rocky Fork of the Mohican has its source in the western part of Richland county, and flows through and past the city of Mansfield and the lands described in the amended petition herein; admits that plaintiff has duly filed a claim for damages with the city of Mansfield, and that no settlement or adjustment thereof has been made. Defendant says that if said stream is polluted to such an extent as to be a nuisance and an injury to this plaintiff that the same is caused by other riparian proprietors, and by causes other than that alleged in the amended petition herein. Defendant denies each and every o ther allegation in the .amended petition contained not expressly admitted herein.
    “Second Defense — Defendant says that all rights of action of every kind and description set forth by plaintiff in his amended petition accrued more than four years previous to the commencement of this action, and that the same is now barred by the statute of limitations.
    “Wherefore defendant prays to be dismissed with its costs.”
    The plaintiff’s reply denied the allegation of the answer:
    “That if said stream is polluted to such an extent as to be a nuisance and an injury to this plaintiff, that the same is caused by other riparian proprietors, and by causes other than that alleged in the amended petition herein.”
    And also denied the plea in bar.

      On the trial of the issues, which took place at the January term, 1900, the jury found for the plaintiff, and, with a general verdict assessing his damages at $400, returned a special finding, in response to an interrogatory submitted by the court, that the damages to the “home” farm was $350, and to the farm that was rented, $50.00.
    A motion filed by the defendant, for a new trial, was overruled, and judgment entered on the verdict. A bill of exceptions was duly allowed and filed, which purports to contain the evidence, charge of the court, and instructions requested by the defendant which the court refused to give. Error was prosecuted to the circuit court, where'the judgment was affirmed, and thereupon the case was brought to this court. Such statement of facts as is necessary to an understanding of the questions upon which the case is reported, will be found in the opinion.

      'William McE. Welclon, city solicitor, for plaintiff in error, cited the following authorities:

      Merrifield v. City of Worcester, 110 Mass., 216; Jacobs v. Allard, 1 Am. Rep., 331; Ferguson v. Manufacturing Co., 14 Am. St. Rep., 319; Bainard v. Newton (City), 154 Mass., 255; Gould on Waters, 361; Angell on Watercourses, 90; Sherman & Redfield on Negligence, 121; Bellinger v. Railroad Co., 23 N. Y., 42; Seifert v. Brooklyn (City), 101 N. Y., 136; Valparaiso (City), v. Hagen, 48 Law Rep., Annotated, 707; Cooper v. Hall, 5 Ohio, 320; Sutherland on Damages, 2272; McElroy v. Goeble, 6 Ohio St., 187; Gas Light & Coke Co. v. Freeland, 12 Ohio St., 392; Tootle v. Clifton, 22 Ohio St., 247; Chipman v. Palmer, 77 N. Y., 51; 2 Dillon on Municipal Corporations (4 ed.), sections 1038 to 1052; Public Health and Safety, by Parker &„ Worthington, Sections 38, 208 and 209; Jones on Negligence of Mun. Oorp., Par. 27, page 38.

      Douglass é Mengert, for defendant in error, cited the following authorities:

      Chapman v. Rochester, 110 N. Y., 273; Cleveland v. Beaumont, 4 Re., 444; 4 B., 345; Wood on Nuisance, Sections 677, 678, 679; 2S Enc. of Law (1 ed.), 974; Gould on Waters, Sections 545, 546; Robinson v. Greenville, 42 Ohio St., 625; Rhodes v. Cleveland, 10 Ohio, 160; Dayton v. Pease, 4 Ohio St., 80; Youngstown v. Moore, 30 Ohio St., 133; Cohen v. Cleveland, 43 Ohio St., 190; Dillon on Mun. Cor., sections 1042, 1047; Jacksonville (City) v. Lambert, 62 Ill., 519; Railroad Co. v. Rochester, 127 N. Y., 591; Ashley v. Port Huron, 35 Mich., 296; Kobs v. Minneapolis, 22 Minn., 159; Martin, Ex parte, 13 Ark., 198; Noonan v. Albany, 79 N. Y., 470; Pettigrew v. Evansville, 25 Wis., 223; Inman v. Trip, 11 R. I., 520; Halsman v. Boiling Spring Bleaching Co., 14 N. J. Eq., 335; Gould on Waters, Section 272; Upjohn v. Richland Twp., 46 Minn., 542; Railroad Co. v. Lersch, 58 Ohio St., 639; Emery v. Lowell (City), 109 Mass., 197; Shively v. Railway Co., 7 Am. St. Rep., 471; Sutherland on Damages, (2 ed.) section 1074; Loughran v. Des Moines (City), 72 Ia., 382; Francis v. Schoellkopf, 53 N. Y., 152; Chicago v. Hueberbein, 85 Ill., 594; Wood on Nuisance, Section 853; Boyd v. Watt, 27 Ohio St., 259; Sibila v. Bahney, 34 Ohio St., 399; Givens v. Van Studdiford, 4 Mo. App., 498.
   Williams, J.

The plaintiff sued for alleged violations, by the defendant, of his rights as a riparian proprietor. He is owner of two valuable farms, by or through, which runs a small natural water course, known as the Rocky Fork of the Mohican river. Both of the farms are náturally adapted to, and have been used for agricultural and grazing- purposes. Each farm is improved, and each has on it a dwelling house, barn and other suitable buildings. One of them, known in the case as the “home” farm, is occupied by the plaintiff as his family residence, and had been for many years before the alleged encroachments on his rights by the defendant. The other he rents to tenants who occupy and cultivate it. The waters of this natural stream were accustomed to flow by and through these farms, supplying them, and their occupants, with pure and wholesome water in sufficient quantities for all domestic, agricultural, and other suitable purposes for which pure and wholesome water is generally used and needed upon a farm, until they were polluted and corrupted by the alleged acts of the defendant. The wrong complained of is, that the defendant, a city of something over eighteen thousand inhabitants, and situated on or near the water course above the plaintiff’s farms, by a system of sewerage emptying into the stream, caused to be collected and discharged into the stream, the sewage of the city, or a large part of it, which was carried down the stream to the plaintiff’s farms, where it accumulated and remained in large quantities. As a result of this alleged wrong of the defendant, the water Avas polluted, and rendered unfit for domestic and other ordinary uses; and, in time of freshets, the filth Avas washed out by the force of the stream and deposited on the plaintiff’s lands, destroying the grass and herbage, and causing offensive and unwholesome smells which materially interfered with the comfortable and proper enjoyment of the premises by the plaintiff and his family. The suit was defended chiefly on the ground that the stream was corrupted, in part at least, by other independent sources over which the defendant had no control; .though the contention apparently most relied on in argument here, is that the city cannot be held liable for the acts complained of, in any event. In the court’s instructions to the jury the defendant’s liability was confined to such substantial injury as the plaintiff actually sustained in consequence of the alleged misconduct of the defendant, and his measure of recovry, if the issues were found in his favor, was limited to such an amount as would reasonably compensate him for the material interference with the comfortable enjoyment of his home farm, the proper and necessary use of the water to which he had hitherto been accustomed, including any additional expense rendered necessary in watering his stock, and the loss of his grass and herbage. His damages to the rented farm, the jury were instructed, could not exceed the actual loss resulting from a diminution in the rents, The charge given covered, substantially, all of the instructions requested by the defendant, except, probably, the second one which reads as follows: “The light of plaintiff to have the water descend on him in its pristine clearness, must yield to the demands of a denser population and the march of civilization.”

So that it must be^accepted as established by the verdict and judgments below, that the injury of which the plaintiff complains, was caused by the defendant, as claimed, and that, in consequence thereof he sustained substantial damage of that special nature and degree which would enable him to maintain action therefor if inflicted by an individual or private corporation. And, he is not without like remedy against the defendant, unless, as claimed by its counsel, it has a paramount right, either by legislative grant, or from necessity for the preservation of the public health, safety, and welfare, to subject the water course to the uses it has made of it, without accountability for the destruction or material impairment of the-property rights of lower riparian owners.

The statutory authority for this immunity, it is contended by counsel, is found in sections 2232 and 2370, of the Revised Statutes. The former section provides that, a city may enter upon and hold real estate without its corporate limits, among other enumerated purposes, “for sewers, drains and ditches, and for this purpose the corporation shall have power to appropriate, enter upon and take private property, lying outside of the corporate limits.” The latter section authorizes municipal corporations to adopt a system of sewerage, “the main or principal sewers having their outlet in a river or other proper place.” The lawful exercise of the power conferred on municipal corporations to enter upon and take private property for any of the purposes enumerated by the former section, requires a legal appropriation, as that section indicates, involving the assessment of compensation for the property when taken without the owner’s consent. The stream in question in this case is not a river, a term that may import a stream of sufficient volume and flow to carry off sewage emptied into it, and thus preserve the purity of its water; nor, as will be hereafter noticed, can that be a suitable place for the deposit of sewage, within the contemplation of the law, where that will result in the creation of a public or private nuisance. But, the right of the plaintiff to redress for the injury done him, lies back of any mere authorization by the statute of the defendant’s acts which inflicted the injury, and rests upon the constitutional guaranty which secures the inviolabilitv of private property, and the right of the owner to compensation when taken for any public use. Indeed, it appears to be a settled principle of universal law, independent of constitutional provision, that the right to compensation for private .property when taken for a public use, is an inseparable incident of the ownership of property. It is declared in Pumpelly v. Green Bay Co., 80 U. S. (13 Wall.), 166, that: “By the general law of European nations and the common law of England it was a qualification of the right of eminent domain that compensation should be made for private property taken or sacrificed for public use. And the constitutional provisions of the United states and of the several states which declare that private property shall not be taken for public use without just compensation were intended to establish this principle beyond legislative control.” And it was there held that: “It is not necessary that property should be absolutely taken, in the narrowest sense of that word, to bring the case within the protection of this constitutional provision. There may be such serious interruption to the common and necessary use of property as will be equivalent to a taking, within the meaning of the constitution. The backing of water so as to overflow the lands of an individual, or any other superinduced addition of water, earth, sand, or other material or artificial structure placed on land, if done under statutes authorizing it for the public benefit, is such a taking as by the constitutional provision demands compensation.”

In that case, a statute of Wisconsin authorized the construction of a dam across Fox river, in order to improve its navigation. The dam, which was constructed in accordance with the provisions of the statute, caused the water to overflow the plaintiff’s lands on account of which he suffered substantial injury, for which he brought suit. It was claimed by the defendant that the damages sustained by the plaintiff were “such as the state had a right to inflict in improving the navigation of Fox river, without making any compensation for them ” Mr. Justice Miller, in resolving this contention against the defendant, said: “The argument of the defendant is that there is no taking of the land within the meaning of the constitutional provision, and that the damage is a consequential result of such use of a navigable stream as the government had a right to for the improvement of its navigation.

“It would be a very curious and unsatisfactory result, if in construing a provision of constitutional laAV, always understood to have been adopted for protection and security to the rights of the individual as against the government, and which has received the commendation of jurists, statesmen, and commentators as placing the just principles of the common law on that subject beyond the power of ordinary legislation to change or control them, it shall be held that if the government refrains from the absolute conversion of real property to the uses of the public it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that Avord, it is not taken for the public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common laAV, instead of the government, and make it an authority for invasion of priArate right under the pretext of public good, which had no warrant in the laws or practices of our ancestors.”

And the learned justice, referring to the case of Gardner v. Newburgh, 2 Johns. Ch., 162, observed that: '“In the case of Gardner v. Newburgh, Chancellor Kent granted an injunction to prevent the trustees of Newburgh from diverting the water of a certain stream flowing over plaintiff’s- land from its usual course, because the act of the legislature which authorized it had made no provision for compensating the plaintiff for the injury thus done to -his land. And he did this though there was no provision in the constitution of New York such as we have mentioned, and though he recognized that the Avater was taken for a public use. After citing several continental jurists on this right of eminent domain, he says that Avhile they admit that private property may be taken for public uses Avhen public'necessity or utility requires, they all lay it -doAvn as a clear principle of natural equity that the individual Avhose property is thus sacrificed must be indemnified. And he adds that the principles and practice of the English government are equally explicit on this point. It will be seen in this case that it was the diversion of the Avater from the plaintiff’s land, which was considered as taking private property for pubiic use, but which, under the argument of the defendant’s counsel, would, like overflowing the land, be called only a consequential injury.”

And Mr. Justice Miller concludes that: “If these be correct statements of the limitations upon the exercise of the right of eminent domain, as the doctrine was understood before it had the benefit of constitutional sanction, by the construction now sought to be placed upon the constitution it Avould become an instrument of oppression rather than protection to individual rights. But there are numerous authorities to sustain the doctrine that a serious interruption to the common and necessary use of property may be, in the languáge of Mr. Angelí, in his work on watercourses, equivalent to the taking of it, and that under the constitutional provisions it is not necessary that the land should be absolutely taken.”

Authors, who have fully investigated the subject, are quite agreed in their conclusions, that riparian rights are property rights, and therefore property, in the legal signification of the term, and within the meaning of the constitution. In Lewis on Eminent Domain, Vol. 1, Section 60, that author says that: “All the authorities agree” that small streams incapable of navigation “are wholly private property, and that the title of the riparian owner- extends to the middle of the stream.” And in Section 61 it is said that: “It may be laid down as a well settled principle that every proprietor over or past whose land a stream of water flows has a right that it shall continue to flow to and.from his premises in the-quantity, quality and manner in which it is accustomed to flow by nature, subject to the right of the upper proprietors to make a reasonable use of the stream as it flows past their land. , This right is a part of his property in the land, and in many cases constitutes its most valuable element. It necessarily follows, therefore, that any violation of this right in the exercise of the power of eminent domain is a taking of private property for which compensation must be made.” In Section 62 the rule is stated as follows: “Where the waters of a stream or any part thereof are taken or diverted to supply a city or village with water, or for the use of a canal or railroad company, or to improve a highway by land, or to make a new-channel, either for the improvement of navigation, or for the protection of a public road, or for any other public use, compensation must be made to the inferior proprietors on the banks of the stream who are injured thereby. The only dissenting case which has come to our notice is that of the Commissioners of Homochitto River v. Withers, in which the Supreme Coúrt of Mississippi held that it was not a taking, to divert a stream of water from the plaintiff’s property into a new channel for the purpose of improving navigation. This decision is so palpably wrong that we do not think it requires discussion.”

“According to principles heretofore laid down,” says the same author, in Section 84, “it follows that an injury to riparian rights for public use is a taking for which compensation must be made. ‘These riparian rights founded on the common law, are property, and are valuable, and while they must be enjoyed in due subjection to the rights of the public, they cannot be abridged or capriciously destroyed or impaired. They are rights of which, when once vested, the owner can only be deprived in accordance with the law of the land, and, if necessary that -(¡hey be taken for public use, upon due compensation.’ ”

In Mills on Eminent Domain, where the same doctrine is maintained, it it said, Section T9, that: “Riparian rights are property. Of this property the owner cannot be deprived without just compensation, nor can the state itself exercise such a power of deprivation, or confer it upon some subordinate municipality, without making compensation for the property taken.” And in Section 182 of the same work, it is laid down as settled law, that: “The legislative authority to do an act resulting in damages to the property of an individual cannot be sustained, without the payment of damages, on the simple claim that the legislature cannot authorize that which is improper. It is beyond the power of the legislature to authorize the infliction of an injury without compensation. Charters should not be construed as evincing any legislative intention to authorize an injury, or to shield the corporation from a common law action, in case compensation is not provided. The fact that compensation is not provided should not lead the court to suppose that all injuries not provided for were declared by the legislature to be consequential, and, therefore, not subject to compensation.”

In Gould on Waters, Section 204, after declaring the right of riparian proprietors to have the stream “flow as it is wont by nature, without material diminution or alteration,” it is maintained that: “They may insist that their rights to thus use the water shall be regarded and protected as property. The right to use the water in its natural flow is not a mere easement or appurtenance, but is inseparably annexed to the soil itself. It does not depend upon appropriation or presumed grant from long acquiescence on the part of other riparian proprietors above and below, but exists jure naturae as parcel of the land.”

Wood on Nuisances, Section 332, speaking of the property rights of riparian owners, says, they are rights “in the owner of the soil which cannot be violated with impunity; rights which are distinct from those enjoyed by the public generally, and which exist not because of any special property in the water, but because of the OAvnership of the land over or through which it flows, and the rights that are necessarily created thereby.” These property rights, it is said in the next section, “may he the subject of sale or lease like the land itself.” And in Section 427, speaking more directly to the question involved in this case, the author says: “The pollution of water by artificial drainage which causes sewage to flow into a stream, spring or well, whether done by a municipal corporation or an individual, constitutes a nuisance which entitles the owner to damages therefor, the rule being that a municipal corporation has no more right to injure the waters of a stream or the premises of an individual than a natural person.”

This subject is discussed in Angelí on Watercourses, where the doctrine announced in the quotations already made from other standard authors is fully upheld. In Sections 457, 458, that author says:

“Among the variety of legal titles which, in this country, have often been' involved in controversies respecting the rights of riparian proprietors on inland streams and rivers, is the important one entitled ‘eminent domain/ or the right which the government retains over the estates of individuals to appropriate them to public use. It is obvious, that the government of no state can administer its public affairs in the most beneficial manner to the community at large, if it cannot, on particular emergencies and for public utility, exercise at least a qualified power of disposing of, or of impairing in value, the property of an individual citizen. To this power, according to Yattel, ‘men have impliedly yielded, though it has not been expressly reserved.’ But it is a rule founded in equity, and is laid down by jurists as an acknowledged principle of universal law, that a provision for compensation is a necessary attendant on the due exercise of the power of the lawgiver to deprive an individual of his property without his consent.”

Section 458: “In England, notwithstanding the transcendent power of its parliament, the law on this subject has been administered on the above just and equitable principles. In the familiar instance of an act of parliament, for promoting'some specific object or undertaking of a public nature, as a turnpike, navigation, canal, or railway, the legislature scruple to interfere with private property and compel the owner of the land to alienate it, without providing a reasonabl price and compensation for so doing. ‘If a new road,’ says Blackstone, ‘were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without consent of the OAvner of the land. ‘In vain may it be urged that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even public tribunal, to be the judge of this common good, and to decide Avhether it be expedient or no. Besides, the public good is in nothing more essentially interested, than in the protection of every individual’s private rights, as modelled by the municipal law. In this, and in similar cases, the legislature alone, can, and indeed frequently does, interpose, and compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained. The public is considered as an individual, treating with an individual for exchange. All that the legislature does, is to oblige the owner to alienate his possessions for a reasonable price; and even this is an extension of power which the legislature indulges with caution.”

It would not be a profitable extension of this opinion to quote from the numerous cases cited in the text books already extensively quoted to sustain the text. The substance of the many learned opinions of able courts is given in the quotations already made. We will add to them only a brief extract from the able opinion of Huger, C. J., in Seifert v. City of Brooklyn, 101 N. Y., 136, 143, 144: “It is a principle of the fundamental law of the state,”' says that learned judge, “that the property of individuals cannot be taken for public use except upon the condition that just compensation be made therefor, and any statute conferring power upon. a municipal body, the exercise of which results in the appropriation, destruction or physical injury of private property by such body, is inoperative and ineffectual to protect it from liability for the resultant damages, unless some adequate provision is contained in the statute, for making such compensation. The immunity which extends to the consequences, following the exercise of judicial or discretionary power, by n municipal body or other functionary, presupposes that such consequences are lawful in their character1, and that the act performed might in some manner be lawfully authorized. When such power can be exercised so as not to create a nuisance, and does not require the appropriation of private property to effectuate it, the power to make such an appropriation or create such nuisance will not be inferred from the grant. Where, however, the acts done are of such a nature as to constitute a positive invasion of the individual rights guaranteed by the constitution, legislative sanction is ineffectual as a protection to the persons or corporation performing such acts from responsibility for their consequences. Radcliff’e Exrs, v. Mayor, 5 N. Y., 195. It has been sometimes suggested that the principle illustrated in the maxim, “sails populi est suprema lex” may be applied to and will shield the perpetrators, from liability for damages arising through the exercise of such power, by a municipal corporation; but we apprehend that this maxim cannot be thus invoked. Wilson v. Mayor, 1 Denio, 595. The cases where such a doctrine can be properly applied must, from the very nature of the principle, be confined to circumstances of sudden emergency, threatening disaster, public calamity and precluding a resort to remedies requiring time and deliberation. Wharton on Leg. Max., 89; Mayor v. Lord, 17 Wend., 285. It is suggested in the latter case that even in such an event, under the principles of the constitution, the public would be liable for the damages indicted. However this may be, we are quite clear that the theory that a municipal corporation has the right in prosecuting a scheme of improvements, to appropriate without compensation, either designedly or inadvertently, the permanent or occasional occupation of a citizen’s property, even though for the public benefit, cannot be supported upon the principle referred to. If the use of such property is required for public purposes, the constitution points out the way in which it may be acquired, when there is no such imminence in the danger apprehended as precludes a resort to the remedy provided, and the only mode by which it can be lawfully taken in such cases, is that afforded by the excuse of the right of eminent domain.”

There appears to be no diversity of opinion upon the proposition that riparian rights are property that may be the subject of bargain and sale, either with or separate from the land; that these rights constitute a part of the owner’s estate in the land, and materially enter into the actual value; and that any injurious invasion, or impairment of those rights amounts to a taking of the owner’s property. It follows that no legislative sanction can justify the taking of such property, either' directly, or indirectly, though it be required for a public use, without adequate provision for a just' indemnity to the owner. To entitle the owner to such indemnity, it is not necessary that his entire interest in the particular property be taken. The value of property consists in the owner’s absolute right of dominion, use, and disposition for every lawful purpose. This necessarily excludes the power of others from exercising any dominion, use or disposition over it. Hence, any physical interference by another, with the owner’s use and enjoyment of his property, is a taking to that extent. To deprive him of any valuable use of his land, is to deprive him of his land, pro tanto. So that, the principle of the constitution is as applicable where the owner is partially deprived of the uses of his land, as where he is wholly deprived of it. Taking a part is as much forbidden by the constitution as taking the whole. This principle has been maintained by the former decisions of this court. In Reeves v. Treasurer, 8 Ohio St., 333, 346, where the use sought was for drainage purposes, this court said: “The land occupied by the ditch and its banks is not, it is true, wholly appropriated. The owner may still use the ditch itself for purposes of irrigation, for watering stock, or may perhaps make it serve the purpose of a fence. He may grow timber and shrubbery on its banks. But his dominion over it — his power of choice as to the uses. to which he will devote it, are materially limited; in short, other parties acquire a permanent easement in it. An easement is property; and to the extent of such easement, it is clear to us, that private property is taken, within the meaning and spirit of the constitutional prohibition. The decisions in other states, on questions bearing on this point, seem not to have been uniform. Sedgwick on Const. Law, 519 et seq. But the doctrine here maintained is settled, in Ohio, by repeated adjudications, and on principles which, we think, cannot be shaken. Crawford v. Delaware, 7 Ohio St., 459.” And see Railroad Co. v. Commissioners, 63 Ohio St., 23.

There is a line of authorities which sustain the right of action in cases like the one before us, and place it upon the ground that such acts as those complained of here constitute a nuisance, which municipal corporations cannot, any more than individuals, be allowed to create or maintain. To this proposition, Judge Dillon, in his work on Municipal Corporations, Section 1047, adds the weight of his great authority: “It is, perhaps, impossible to reconcile all of the cases on this subject, and courts of the highest respectability have held that if the sewer, whatever its plan, is so constructed by the municipal authorities as to cause a positive and direct invasion of the plaintiff’s private property, as by collecting and throwing upon it, to his damage, water or sewage which would not otherwise have flowed or found its ■way there, the corporation is liable. This exception to the general doctrine, when properly limited and applied, seems to be founded on sound principles, and will have a salutary effect in inducing care on the part of the municipality to prevent such injuries to private property, and will operate justly in giving redress to the sufferer if such injuries are inflicted. Accordingly, though a municipality having the power to construct drains and sewers may lawfully cause them to be built so as to discharge their refuse matter into the sea, or natural stream of water, yet this right must be so exercised as not to create a nuisance public or private. If a public nuisance is created, the public has a remedy by a public prosecution; and any individual who suffers special injury therefrom may recover therefor in a civil action. If, therefore, deposits from sewers constructed by a city cause a peculiar injury to the owner of a wharf or dock, by preventing or materially interfering with thé approach of vessels and the accustomed and lawful use of the wharf or dock, the city is liable to the latter in damages.”

In Wood on Nuisances, Section 427, the rule is stated as follows: “The pollution of water by artificial drainage which causes sewage to flow into a stream, spring or well, whether done by a municipal corporation or an individual, constitutes a nuisance which entitles the owner to damages therefor, the rule being that a municipal corporation has no more right to injure the waters of a stream or the premises of an individual than a natural person.” * * * “The pollm tion of water by discharging waste from mills and manufactories, or, indeed, in any way, creates an actionable nuisance, and the legislature has no power to authorize' the pollution of the water of a stream without compensation to the owners of the' land through which such stream flows, as such use is a taking of property within the meaning of the constitution. It has been held in numerous cases that a mu* nieipal corporation is liable for the wrongful diversion of surface water from its natural channel to the premises of another, as well as for discharging its drainage or sewage upon private property.”

Other commentators of acknowledged authority maintain the same rule. A few only, of the many reported cases which sustain this doctrine, will be noticed. The case of Chapman v. City of Rochester, 110 N. Y., 273, is not substantially different from the one before us. There “plaintiff owned and occupied certain premises, across which ran a stream fed by springs of pure water. He collected the water of said stream into an artificial basin and used it for domestic purposes and the propagation, of fish, and in winter procured from it a supply of ice. Defendant thereafter constructed sewers, through which, not only surface water, but the sewage from houses and water closets was discharged into said stream above plaintiff’s land, rendering its water unfit for use and covering its banks with filthy and unwholesome sediment. Held, that these acts constituted a nuisance to restrain which, as well as to recover his personal damages, plaintiff could maintain an action.”

Morgan v. City of Danbury, 67 Conn., 484, is much like the preceding case. There “the plaintiff, a riparian mill proprietor, alleged that the defendant, without making him any compensation or attempting to acquire any of his rights, was discharging and threatened to continue to discharge in still greater quantity, waste matter, selvage, and other noxious, corrupt and impure substances from its sewers into the stream, so as to pollute it and seriously damage his land and mill privilege; that such discharge poisoned and corrupted the air of the neighborhood and endangered the health of the plaintiff, his workmen and others, and had already partly filled his dam with filth and prevented him from disposing of his land for building purposes; and prayed for an injunction against the continuance of the nuisance and to restrain the pollution of the waters of the stream. The trial court found these allegations to be true, that the plaintiff’s injuries could not be adequately compensated in damages, and that the acts complained of constituted a public nuisance, and granted an injunction restraining the defendant, after twenty months from the date of the decree, from discharging any sewage into the stream above the plaintiff’s premises, and from polluting the waters by any such discharge.” And it was there held: “that the right to deposit a thing in any place must always be dependent not only on the nature of the thing deposited, but on the nature of the place in question and the uses to which that has already been put; and that if the stream was from whatever cause, in such a condition that the defendant’s discharge of sewage there worked a nuisance, it had no right to use the stream for such purpose.” And see Seifert v. City of Brooklyn, supra; City of Jacksonville v. Doan, 145 Ill., 23; Inman v. Tripp, Treas., 11 R. I., 520; Good v. Altoona, 162 Pa. St., 493; Owens v. Lancester, 182 Pa. St., 257. Mason v. City of Mattoon, 95 Ill. App., 525.

The right of the plaintiff to the relief awarded him by the judgments of the lower courts, is sustained by the case of Rhodes v. City of Cleveland, 10 Ohio, 160. That suit was brought against the city to recover damages for so cutting its drains as to cause the water to overflow and wash away the plaintiff’s lands. The trial court charged the jury that the plaintiff could not recover, “unless he showed either, that the city acted illegally, or if within the scope of authority, that they acted maliciously.” In reversing the judgment founded on the verdict for the defendant, this court held that: “Corporations are liable like individuals for injuries done, although the act was not beyond their lawful powers.” The grounds of the decision are stated in the opinion by Lane, C. J., as follows: “That the rights of one should be so used as not to impair the rights of another, is a principle of morals, which, from very remote ages, has been recognized as a maxim of law. If an individual, exercising his lawful powers, commit an injury, the action on the case is the familiar remedy; if a corporation, acting within the scope of its authority, should work wrong to another, the same principle of ethics demands of them to repair it, and no reason occurs to the court why the same remedy should not be applied to compel justice from them.”

That decision is founded upon the broad principles of common justice and constitutional right. It is applicable to, and decisive of this case. No argument can be required to prove that, if the plaintiff’s riparian rights are property for which, when injured by an individual the latter may be held liable therefor in an action, they are none the less property when so injured or taken by the public; nor that those acts which, when done by an individual constitute a deprivation of the owner of his property, are equally so when done for the benefit of an aggregation of individuals that go to make* up the population of a municipal corporation. Nor, can it add anything to the> defendant’s prerogatives, nor take anything from the plaintiff’s rights, to call the injury he has suffered consequential. The owner is nevertheless deprived of substantial property interests, and no name by which the acts that produce that effect may be called, can destroy or diminish his constitutional right to indemnity.- The question whether the injury constitutes a taking of property, depends upon its effect on the owner’s proprietary rights, and not upon the length of time necessary to produce that effect. They may he as effectually taken by continuing'acts extending over a considerable period of time, as by .a single act.

The case of Rhodes v. Cleveland, supra, has been repeatedly approved and followed in subsequent decisions of this court. In McCombs v. Akron, 15 Ohio, 474, 479, Read, J., after stating that “the sole question in this case is, whether a municipal corporation can be made liable for ah injury resulting to the property of another, by an act of such corporation, strictly within the scope of its corporate authority, and unattended by any circumstance of negligence or malice,” with his usual clearness and force, says: “The case of Rhodes v. City of Cleveland, 10 Ohio, 159, with admirable good sense and strength of reason, answers this question, by asserting .that corporations are liable, like individuals, for injuries, although the act was not beyond their lawful powers. The late learned Oh. J. Lane, who pronounced the opinion of the court in that instance, accounts for the older cases, upon the ground that courts were hampered by the mystic notion attached to corporate seals, by which corporations withdrew themselves from responsibility, and cast it upon their agents.' A sort of transcendentalism which enveloped both the courts and the profession in a mist growing out of the airy nothingness of the subject matter, enabled corporations, like the pestilence which walketh unseen, to do their mischief and escape the responsibility. It is refreshing to the jurist, and important to the rights of individuals, that these confused notions are yielding to a clearer light and more solid reason.” The learned judge further said: “We recognize the doctrine of that case, as laid down by this court, as founded in the most solid reason, right and morals, and a majority of the court have not the slightest disposition to impair its obligation, but, by the light of such example and assurance, hope that the whole subject matter of corporations will in the end, be reduced to the control of incontestable principle.”

In Dayton v. Pease, 4 Ohio St., 80, 94, speaking of both of the above cases, Ranney, J., said: “In each of those cases, the liability of a municipal corporation, acting through subordinate agents, within the scope of its authority, and without malice or negligence, was enforced, where the acts.of such agents resulted in injury to the property of private individuals. The propriety of investing such corporations with the power to improve their streets, resulting often in indirect injury to private property, is conceded; but the cases rest upon the clear principle of right and justice, which requires compensation to go hand in hand with public benefit. And, when in the lawful exercise of these powers, private property must be injured for the common benefit of all, all should be held liable to make reparation; and, in the view of the judges who concurred in these decisions, the principle was not without support from that section of the constitution of the state, which secures the inviolability of private property.” The court, in Cohen v. Cleveland, 43 Ohio St., 190, 193, is not less emphatic in its approval of the doctrine of Rhodes v. Cleveland, supra. And see Youngstown v. Moore, 30 Ohio St., 133, 142, 143. It is true that the decision of Rhodes v. Cleveland, is not put expressly on constitutional ground, though that ground is advanced in subsequent cases approving the decision.

We are satisfied, after the most careful consideration we have been able to give this case, that the judgments below are correct, and they are

Affirmed.

Minshall, C. J., and Burket, J., concur.