text:
    Pennsylvania Company v. Gallagher.
    Where an employe of a railroad company, rightfully engaged in the repair of a freight car belonging to his employer, calls upon his son, a minor under eleven years of age, to render him necessary temporary assistance in the work, and the son, while so assisting, without any negligence on his part or 6n the part of his father, is injured through tiie negligence of the agents and servants of another railroad company in backing a train of cars upon a side-track where the ear is being repaired, the latter company is liable, in an action by the son, for damages for the injury by him so received.
    Error to the District Court of Richland County.
    The original action was brought in the Court of Common Pleas of Richland County, by the defendant in error, Charles Gallagher, an infant, by his father, Daniel Gallagher, as his next friend, against the plaintiff in error, the Pennsylvania Company, to recover for injuries alleged to have been received, by him, through the negligence of that company, while he was assisting his father in repairing a freight car.
    On the 24tli of June, 1879, the Pennsylvania Company operated, as lessee, the line of railroad known as the Pittsburgh, Fort Wayne, & Chicago Railway, and which at Mansfield, Ohio, crosses the Baltimore & Ohio Railroad. The B. & O. Railroad Co. had five different tracks running nearly parallel with Main Street in that city. One of these tracks was known as the “ transfer track,” which, by means of a switch at the north end, was connected with the main track of the Pittsburgh, Fort Wayne, & Chicago Railway. At the south end of this transfer track, it was connected with the main track of the B. & O. Railroad. It was the only means of transferring cars from one of these railroads to the other.
    Daniel Gallagher, at the time his son was injured, was in the employment of the B & O. Railroad Company, as car inspector and repairer. He had a shop near this transfer track, and in 'the vicinity of the place where his son was injured. It was a part of the duty of Daniel Gallagher to inspect the cars coming into the yard of the B. & O. Railroad Company, and repair such as required repairs. His residence was about a mile from the shop; and, on the 24th of June, 1879, Charles Gallagher, his son, then a boy under eleven years of age, as had been his custom, carried his father’s dinner to the shop.
    There was standing on this transfer track a car loaded with coal, that had come over the B. & O. Railroad from Newark, and was waiting to be transferred to the Pittsburgh, Fort Wayne, & Chicago Railway. It needed repairs, It was in some manner broken underneath the car, where the draw bar is fastened. Daniel Gallagher did not know how soon the car would have to be transferred, and it was his duty to repair it before it left the transfer track. The north end of this track curves towards the west. North of this broken car, on the same transfer track, and between it and the Pennsylvania Company’s track, were standing eight or ten freight cars, completely hiding the view of the north end of this track from Daniel Gallagher and his son. The father, for the purpose of repairing the car, shovelled away the coal from over the bolts, got under the car with ’ his son, found a strap iron bent down, put his jack under it, and ivas raising it, and requested-liis son to assist him by holding a piece of Avood under it, Avliile the father forced it up against the iron. The father and son were both under the end of this car, engaged in the performance of this Avork, when a through freight train, belonging to the Pennsylvania Company, without signal of any kind, by bell or whistle, backed and threw on to the transfer trade six or eight cars, Avith such force as to strike with great force and violence against the freight cars that were so standing upon said track, and against the freight car that Avas so being repaired, and thereby caused the injury complained of by the defendant in error.
    It Avas claimed by the plaintiff, on the trial in the court below, that the defendant Avas negligent in not giving any signals of the intended use of the track on the occasion of the injury; and, also, that on that occasion the transfer track AAras being used in an improper manner by the Pennsylvania company.
    At the close of all the testimony offered by either party-in support of the issues joined in the cause, the defendant, among other requests, asked the court to charge the jury as folio avs : —
    “ Fourth. Even although the defendant varied from the usual manner of using this track in question, yet if the plaintiff Avas there not as.an employe of the B. & O. Co. he cannot complain of the negligence, unless you find that the defendants’ agents kneAv that he was there, and wilfully injured him. •
    “Fifth. The mere fact that his father took the plaintiff with him would not invest him with the capacity of an employé of the B. & O. Co.”
    The fourth and fifth charges the court gave to the jury, and added the following qualification to said fourth request: “ Gentlemen, if the plaintiff at the time he received the injury was wrongfully upon the track, then act upon this as the law.” To which qualification the defendant, by counsel, excepted.
    And to said fifth request the court added the following qualification: “This, gentlemen, is correct. But if you find that the defendant and the Baltimore & Ohio Company were each rightfully in the joint use and occupation of this transfer track, and the father of this plaintiff, then in the employment of the Baltimore & Ohio Company, duly authorized, was engaged in repairing a car upon this track; that the plaintiff brought to him his dinner, and that while engaged in repairing said ear, shortly thereafter, the father requested plaintiff to render him necessary temporary assistance to enable him (the father) to perform said work of repairing said car, — I will submit to you the question as to whether the father, under the facts of this case, was authorized to thus employ his son for the B. & O. Co., to assist him thus in the maimer shown by the evidence. If he was thus authorized to employ the plaintiff, then the plaintiff was rightfully upon the track.” To all of which qualifications the defendant, by counsel, excepted.
    The jury returned a verdict for the plaintiff. Judgment was entered accordingly. A bill of exceptions was taken embodying all the testimony, and on error the district court affirmed the judgment of the common pleas; to reverse which judgment of affirmance, a petition in error is filed in this court.

      Rush Taggart, for plaintiff in error.
    I. There was nothing to show the men in charge of the train of plaintiff in error that there was any one about the cars standing on the transfer track, and it was not incumbent upon those men to ascertain that no one was' there. Lehey-v. Railroad Go., 4 Robertson, 204; Railroad Go. v. McLaughlin, 47 111., 265.
    II. There is nothing in the evidence tending to show any authority from the B. & O. Co., on the father’s part, to employ any assistance of any kind whatever. There is nothing to show that such assistance was necessary even at that time. It does not appear that it was even known to any one of the B. & O. employés, except the father himself. Yet, with this total absence of testimony upon this essential question, the court modified the fifth request of the defendant, and submitted the whole question of authority to the jury. It was error thus to submit this question in the absence of any proof of the extent of the father’s powers. Tow anda Goal Go. v. Keenan, 86 Penn. State, 418.
    It surely cannot be contended that the mere fact of the father being an employé of B. & O. Company would give him this right, for the servant is an agent simply of his master, and the rule of the law and of the courts has always been to confine his agency to the limits of the authority conferred by the master. Wetmore v. L. M. R. R. Go., 19 Ohio State, 110; P. F. W. & Q. Ry. Go. v. Maurer, 21 Ohio State, 421; Plouier v. Pennsylvania R. R. Go., 69 Penn. State, 210; Luff v. Allegheny Valley R. R. Go., 2 A. & E. R. R. cases, 1; IF. O. J. £ Gr. W. R. R. Go. v. Harrison, 48 Miss., 112, reported in 12 American, 556; Fverhart v. T. II. ‡ I. R. R. Go., advance case from Indiana, reported in 4 A. & E. R. cases, 599; Sherman v. K. $ St. J. R. R. Go., 72 Missouri, 62, reported in 4 A. & E. R. R. cases, 589.
    The fact that two companies were occupying this track would not vary the rule laid down in the above cases. For, while a change in the method of use by either might authorize the other or those representing it, and upon the track by its authority, to make complaint of such unauthorized use, yet one upon the track without the lawful authority of either company would not have the right to complain, unless he was wantonly injured. Sutton v. JY. Y. O. JR. JR. Co., 66 N. Y., 243.
    Nor does the infancy of the plaintiff change the relation of the parties under the facts of this case. If he had been seen on the track, then his infancy should have been taken into account, in considering what should be done to avoid injuring.him. Moore v. P. R. R. Co., advance ease, Penn., reported in 4 A. & E. R. R. cases, 569 ; C. B. Sf Q. R. R. Co. v. Stumps, 55 Ills., 367; Philadelphia Reading R. R. Co. v. Spearen, 47 Penn. State, 303; C. £ A. R. R. Co. v. McLaughlin, 47 Ills., 265.
    This was not a public place, nor a place where persons were in the habit of passing and repassing at will, so that it is clearly distinguishable upon principle from the case of B. I. R. R Co. v. Snyder, 18 Ohio State, 399.

      Jenner <f Tracy, for defendant in error.
    On the proposition that Charles Gallagher was entitled to the same degree of care from the Pennsylvania Company that his father, an employé of said Baltimore and Ohio Railroad Company, had a right to demand, we refer to Wood’s Master and Servant, Sec. 455; Cumberland Valley R. R. Co. v. Myers, 55 Penn. St., 288; Begg v. Midland R. R. Co., 1 H. & N., 773; 40 JEnglish Law and Eq., 376; Abraham v. Reynolds, 6 Jur. (N. S.), 53; Shearman $ Redfield on Neg., Sec. 106; Little v. Summerlee Iron and Coal Co., 27 Jur., 135.
    Charles was not a trespasser, but was engaged in advancing the interests of the Baltimore and Ohio Company at a time and place that it was proper for him to be, and at the request of an employé of said Baltimore and Ohio Company, and could not have been negligently and carelessly injured by the Baltimore and Ohio Company, whose employé he became, much less by the Pennsylvania Company, engaged at the time in a wrongful use of that transfer track. Wilton v. Middlesex R. R. Co., T07 Mass., 108; 30 111., 9; Wood’s Master and Servant, Sec. 452, and the authorities cited by the author in the notes to said Sec. 455.
   Dickman, J.

It was the province of the jury to inquire' whether the transfer track was used in an improper manner by the Pennsylvania Company, at the time Charles Gallagher was injured; and whether the company, through its agents and servants, negligently, and without giving the usual or any signal or notice to him or to his father,, moved the ears upon the transfer track, and thus inflicted the injury received. Upon a careful examination of all the testimony disclosed by the record, we are not satisfied that the verdict of the jury was so clearly against the weight of the evidence, as to require that it should be set aside and the judgment reversed, unless the son was assisting his father under such circumstances, or the son’s conduct at the time was such, that ordinary care and prudence to prevent the injury could not be exacted of the company. Landis v. Kelly, 27 Ohio St., 567.

It is not neeessary to inquire, whether the son, notwithstanding his immature years, would be responsible for a failure to use the ordinary degree of care, as it is not claimed that there was any negligence on his part or on the part of his father,— if the father’s negligence could be imputed to him. But It is contended, that the same relations did not exist between the Pennsylvania Company and the son, which existed between that company and the father; that the same measure of duty was not owing by that company to the son which was owing to the father. Daniel Gallagher, it is said, was an employ^ of the Baltimore and Ohio Railroad Company, and was rightfully engaged in the line of his duty, while his son was not such an employé; that the father had no authority from his employer to call upon his son to assist him; and that the son rendered the required assistance at his peril, notwithstanding the Pennsylvania Company might fail to use ordinary care and prudence.

As appears by the evidence, Daniel Gallagher was the car inspector, and, in that capacity, the duty devolved upon him to attend to the repairing of cars. His employer must be regarded as having invested him with all the necessary powers incident to his employment. If A. employs B. to operate his factory, giving to him the entire charge over the same, fitun the nature of the employment, B. is vested with power to do such acts as may be necessary for the conduct of the business in which he is employed, in its ordinary and usual manner; as,, if machinery should break, to get it repaired, and generally to do any acts essential to the discharge of his duties, and the prosecution of the business usually intrusted to persons in his position. Wood's Law of Master and Servant, 500.

In the’ business of repairing the broken car, Daniel Gallagher was * authorized to bring to his aid any instrument or agency necessary to the proper performance of his work. ■ He availed himself of the necessary temporary assistance of his son, as he used other instrumentalities under his-control. Pie did not delegate to another a charge committed to himself personally, because of his acknowledged skill and fitness, but directed his son to render assistance which was merely mechanical, and under the supervising guidance and control of the father’s mind and will. Presumptively, Daniel Gallagher did not exceed his powers in Galling upon his son for temporary assistance; and, though a contingency might have been possible in which the Baltimore & Ohio Railroad Company might have raised a question as to the son’s right to recover of it, in an action for injuries received through his father’s carelessness, such possible contingency would not excuse a want of due care on the part of the Pennsylvania Company. Charles Gallagher was not a trespasser, nor wrongfully on the premises where he was injured. And we cannot reach the conclusion that he bore such a relation to the Baltimore & Ohio Railroad Company, that, while rendering needed assistance to that company, in compliance with the directions of its agent with such implied authority, he was placed beyond the pale of protection against the carelessness of the plaintiff in error.

In another aspect of this case, it would seem, that if the Pennsylvania Company could have recovered of the Baltimore & Ohio Railroad Company, for any injury received by it at the hands of Charles Gallagher, while. under his father’s direction and control, the son was not such a stranger to the service of the Baltimore & Ohio Railroad Company, as to debar him from all remedy for injuries suffered by him, through the negligence of the agents and servants of the Pennsylvania Company. That the Pennsylvania Company would have such right of action, is the doctrine of well-adjudged cases.

Simons v. Monier, 29 Barb., 419, was a case, in which the defendant owned a farm, his servant residing on it. In the course of farming, the servant cut a quantity of brush, and piled it in heaps, adjacent to the plaintiff’s land. He then sent his son, an infant, to set fire to it, and the fire extended to the plaintiff’s land, destroying a quantity of timber thereon. It was held, that the act of the son was the act of the father — the defendant’s servant, he being under his control; and that the defendant was liable. Although the act was done by the hand of the son, the hand was directed, guided, and controlled by the mind and will of the father. See also Althorf v. Wolfe, 22 New York, 355; Booth v. Mister, 7 Carr. & Payne, 66.

In the view which we take of this case, the defendant was not prejudiced by the qualifications added by the court to the fourth and fifth requests given in charge to the jury. We are therefore of opinion, that the judgment of the district court should be affirmed.

Judgment accordingly.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Lamprect v. Kehrwicher et al.

      A. K. Dunn, for plaintiff in error.

      James Olds, for defendant in error.
    Eeboe to the District Court of Morrow County.
   By the Court.

In May, 1875, C. recovered a judgment against L., who then owned four parcels of land. Pending proceedings to reverse this judgment, L. mortgaged one parcel to P., and afterwards conveyed the other parcels to other grantees. 'A national bank became the owner of the mortgaged note. The sum due on the note exceeded the value of the mortgaged premises, and L. being insolvent, the bank, to save expense of foreclosure, accepted a deed for the land in payment of the mortgage debt. C.’s judgment was affirmed, and an action to settle priorities was properly brought.

Held: The bank’s interest in the land was properly-dated from- the entry for record of the mortgage to P.

Judgment affirmed.


text:
    Dummick v. Howitt.

      Fox Bird, for plaintiff in error.

      J. B. Challen, for defendant in error.
    Errok to the District Court of Hamilton County.
   By the Court.

Under a bond given by a justice of the peace conditioned as required by section 579 of the Revised Statutes, the sureties are liable “ for any neglect of duty or any illegal proceedings on the part of” a constable appointed by said justice under section 6685, by virtue of section 6687.

Judgment affirmed.


author: Dickman J.

text:
    McCombs v. Stewart.
    A canal company, incorporated-under the act of January 10,1827 (25 Ohio L., 8), erected across a river a dam to the height of fourteen feet, causing the water to flow back upon the lands of a proprietor above the dam on the same stream. The company owned in fee simple, by purchase, the land on which the south half of the dam -was built, but none of the land on which the north half was built; and conveyed, in fee simple, to certain mill owners, the land it thus owned, and granted to them and their heirs the privilege of using the surplus water of the dam not required for canal purposes.

      Held: The right of the company acquired by appropriation, to flow the lands of such proprietor by maintaining a dam of such height, did not, by virtue of the company’s conveyance and grant to the mill owners, survive and vest in them after the dissolution of the corporation.
    Error to the Court of Common Pleas of 'Mahoning County. Reserved in the District Court.
    The original action was brought by John Stewart, one of the defendants in error, in the Court of Common Pleas of Mahoning County, against Calvin McCombs, James Brown, Simeon D. Brown, James B. Drake, The Cleveland & Mahoning Valley Railway Co., and Alvin C. .Voris and George F. Robinson, Trustees of the Pennsylvania & Ohio Canal Company. The action was brought to recover damages for maintaining a milldam, to the height of fourteen feet, across the Mahoning River, in Poland Township, Mahoning County, whereby the lands of the plaintiff lying above the dam upon the same stream were flowed and inundated. The defendants answered the petition in several separate defences, and among them set up several defences of the statute of limitations. The plaintiff, by leave of court, filed a supplemental petition, in which, among other things, he alleged,
    That for a period of more than twelve months preceding the December term of the Supreme Court of this State, A. d., 1872, said canal had been entirely abandoned by said Company, and suffered to become entirely useless and out of repair for the purposes of a public highway, by means of said canal as a water-way, and has ever since been abandoned as a canal or public highway by means of water navigation, and, previous to the judgment of ouster by said supreme court, had entirely fallen into disuse and been abandoned as a canal or public highway by means of water navigation by boats or other means of conveyance upon or through the waters thereof.
    That said Pennsylvania & Ohio Canal Company was, by judgment, order, and decree of the Supreme Court of this State, at its December term, 1872, dissolved and altogether ousted from its corporate franchises, and altogether ousted and altogether excluded from being a body politic and corporate of and within said State, and from all and singular, any and all rights, powers, privileges, liberties, freedoms, and franchises appertaining or attaching to such corporation, under the laws of this State, and that the said corporation was and is, to all intents and purposes, dissolved.
    That the said Alvin C. Voris (together with Samuel Quinby, since deceased) were appointed by said supreme court, as required by the statute in such case made and provided, as trustees of the creditors and stockholders of the corporation so dissolved, and entered upon the performance of their duties as such trustees, having been first duly qualified thereto, and, in the discharge of their duties as such trustees, sold said dam mentioned in plaintiffs’ petition to said Cleveland & Mahoning Valley Railway Company, upon the 15th day of August, 1878, at public auction.
    That said dam has been so unlawfully kept up and maintained by said defendants, said Alvin C. Voris and said George F. Robinson (the latter having been appointed trustee instead of said Samuel Quinby, lately deceased, being sued in their capacity as such trustees), since the dissolution and ouster of said Pennsylvania & Ohio Canal Company, as aforesaid, to the damage of the plaintiff, as in his amended petition set forth.
    On the 26th of February, 1877, the two Browns, McCombs, and Drake, filed an amendment to their original answer as follows:
    “ The said James Brown, Simeon L. Brown, Calvin McCombs, and James B. Drake, for amendment to their original answer for fifth defence, say that heretofore, to-wit: on the 18th day of November, in the year 1862, the Pennsylvania & Ohio Canal Company, a corporation under and by virtue of the laws of this State, was seized in fee simple of the following described lands, to-wit: Part of lot No. 66, in said township of Poland, county and State aforesaid, bounded on the northerly side by the center of the Mahoning river, and extending along the same from the northwest corner of said lot, a great distance, south 56 degrees east, to-wit, 117 rods; thence south 35 degrees west 22 and 12-100 rods to a stake, thence north 55 degrees west 100 rods, thence north 2-|- degrees west 27 and 88-100 rods to the place of beginning, and containing all the site of said dam on the southerly side of said river, and extending a great distance above and below the same, and including the mills of said defendant, James Brown, hereinafter mentioned, and as appurtenant thereto, and to other lands, tenements, and hereditaments then and there owned and'possessed by said corporation in fee simple. The said Canal Company then owned and was seized and'possessed in fee simple of the dam aforesaid, of the height aforesaid, and customarily elevating the waters of said stream to the height and in the manner in said petition alleged, and as appurtenant as aforesaid in like manner owned, and was seized and possessed in fee simple of the right customarily to elevate and flow the waters of said stream to the height aforesaid, and among others, for the purposes hereinafter stated, and being so seized and so owning said premises, the said Pennsylvania and Ohio Canal Company, on the day and year first aforesaid, in due exercise of its corporate powers, granted to-one, John Booh, and one Samuel H. McBride, in fee simple, the lands first herein described, together with other lands to the north-west and south-east thereof and therewith, also granted as appurtenant thereto, the right to use upon said lands, the water from said dam, for the purpose and sufficient therefor, of propelling and operating-divers and valuable mills and machinery, and to maintain said dam, and cause the same to be maintained therefor, and said right by divers and sundry mesne grants and conveyances and assignments became, and is, the property and inheritance of the said James Brown.
    And the defendants further say, that long before the said first mentioned date, to-wit: on the 8th day of October, 1835, the said corporation did, in the manner and to the extent aforesaid, own, and was seized and possessed in fee simple, of the lands and appurtenances aforesaid, together with the right as appurtenant thereto, to elevate and flow the water as aforesaid, for the uses aforesaid, and also for the uses hereinafter stated, and subject to the right aforesaid; that one George Hunter was then seized in fee simple of a parcel of land bounded upon the said center of said river, in that part thereof constituting the northern line of the premises first herein described, and extending up and down said river a great distance, and including the bed of said stream north of said center line and a parcel of land adjacent thereto, and thereupon, to-wit, on said last mentioned date, said corporation granted and assigned to said George Hunter, as appurtenant to his said land, and to his grist mill thereupon, in fee simple, the right to have said dam kept up and maintained, and to have said water elevated and flowed as aforesaid, subject only to occasions of necessary repairs of the works connected therewith, and of unavoidable accidents, to the effect and purpose that the said George Hunter, his heirs and assigns, might use from said dam sufficient water to drive two pairs of four and one-half foot mill stones, and the machinery properly and customarily to be used in connection therewith, and subject only to the provision, that said George Hunter and his heirs and assigns, should not use water from said dam, to the suspension or injury of the canal of said corporation, connected therewith; and the said mill and premises on ■which the same was situate, and the said water right and appurtenance as appurtenant thereto, has by sundry mesne assignments, and grants, become the property and estate of the defendants, and they well may maintain said dam and cause the same to be maintained as aforesaid.”
    “ Sixth: — And for a sixth defence herein, the defendants say that they had an estate of inheritance in the lands when said dam Avas erected, and that they and those under Avhom they hold, have had such estates for more than twenty-one years next before the commencement of this suit, and during all said time, have held and enjoyed as appurtenant to said estate and as of their OAvn proper right in virtue thereof, the customary elevation and fioAv of the Araters of said stream, for the use of divers mills on said lands, and to as great an extent as the same has been done during the time specified in said petition.”
    At the January term, 1878, the case Avas tried by a jury upon the issues joined, and a verdict Avas rendered for the plaintiff, and the court granted a new trial. At the January term, 1879, the case was tried by the court without a jury, when the following findings and judgment were determined upon by the court: —
    “ William M. Arrel and John E. Cavitt, Executors of James Brown, deceased, also James Brown, Jr;, and Mrs. Almira Brown, AvidoAV of James Brown, deceased, appear and on their own motion become defendants, with leave to answer instanter. George F. Arrel disclaims appearing for said Almira Brown; thereupon this cause comes on for trial, and a jury being waived by the parties, was tried by the couA upon the evidence by the parties respectively given; was argued by counsel, and the court, after consideration of the case, was requested by the defendants’ counsel, and with the view of excepting to tbe decision of the court upon the questions of law involved, in the trial, to state its finding of facts specially and separately from the conclusions of law; and the court do, therefore, find that after the passage of an act of the General Assembly of the State of Ohio, incorporating the Pennsylvania & Ohio Canal Company, and of the act of the Legislature of the State of Pennsylvania, for the same purpose, and of the various acts of the General Assembly of Ohio, amendatory of said first-named act, and previous to the. 1st day of January, 1840, and after the said Pennsylvania & Ohio Canal Company had been organized and had entered upon the worh of constructing its canal, and on and before the 25th day of September, 1835, one David Houston was seized in fee simple and possessed thereof, of the lands described in the amendment of the defendant’s fifth defence in their answer herein, as part of lot No. 56, in the township of Poland, said county; and the said Pennsylvania & Ohio Canal Company desiring to procure the same, to be used in and about the construction of its said canal, the said David Plouston, on said day, by deed of conveyance duly executed and delivered, conveyed said lands to said Pennsylvania & Ohio Canal Company, and to their heirs and assigns forever; and on the 8th day of October, 1835, and for a long time previous thereto, and except as hereinafter stated, continuously thereafter, one' George Hunter was seized in fee simple of the lands in said fifth defence described, as so belonging to him, and appurtenant thereto, and situate thereon, was seized and possessed in fee simple of a certain grist-mill thereon- situated, and of a dam of the water of said stream, of the height of about three feet, and made of brush, furnishing water for the said mill; and the said Canal Company, desiring to procure the right to build and construct upon áfcid land, and upon the lands first aforesaid, a dam across said stream to the height of fourteen feet, hereinafter stated, and thereby to construct a portion of its said canal by means of the said dam, and the waters thereby elevated; and whereby the said water privilege of the said Hunter, as then used, would be destroyed, entered into an agreement with the said George Hunter for the construction and maintenance of said dam, as hereinafter stated, and for the use by said George Hunter of a part of the surplus water furnished by said dam for the purpose of propelling the machinery of a new mill to be erected upon and adjacent to said dam, and as appurtenant to the lands and mill so owned and to be constructed by him, and as hereinafter stated; and thereupon said Pennsylvania & Ohio Canal Company, before said 1st day of January, 1840, erected upon said lands so conveyed to them by said David Houston, and so owned by George Hunter in fee simple a large and sufficient dam of the height of fourteen feet, hereinafter stated, and elevating the waters of said stream so as to afford as a part of said canal some miles of navigable water, commonly called slack water, and used the same as hereinafter stated, and leading from said dam to a channel of said canal below the same, and upon the lands of said George blunter constructed a lock through which the waters of said canal, below said dam, were accustomed to flow during all the time hereinafter stated; and the said George Hunter thereupon and before the 1st day of January, 1840, put in possession of his said lands, one John G. blunter and one William Watson, for the purpose, in his name and in his right, of building a mill, and of using said portion of said surplus water-power in. operating said mill, and the said blunter & Watson, thereupon, and before the day last aforesaid, and with the concurrence and under the direction of said Pennsylvania & Ohio Canal Company, constructed upon said lands and upon said dam, upon the northerly end thereof, a large and valuable grist-mill, and placed therein two pair of 4J feet mill-stones, with the necessary machinery and. apparatus for the operating thereof, and to be used in connection therewith, and with the necessary bulk-head and flumes for the furnishing of sufficient water to propel said stones and machinery from said dam, and the said Hunter & Watson, and other persons claiming under them, as hereinafter stated, have continuously used said surplus water-power for said purpose, from thence hitherto; said surplus water-power being in excess of the water needed for the use of said canal and the said Pennsylvania & Ohio Canal Company, having from the date aforesaid, maintained said dam at the height • before then constructed as aforesaid, continually, until the said Canal Company was dissolved and ousted by the judgment of the Supreme Court of Ohio, as stated by the plaintiff in his petition and the amendments thereto, and which is the same height at which the same has been maintained by the defendants since, to-wit, 14 feet high. And the court further finds that said canal was not used after the close of navigation in the fall of 1872, as a canal orthoroughfare.
    “ And the court further finds, that, on the 19th day of June, in the year 1845, the said George Hunter being seized as aforesaid, of the lands aforesaid, by deed of conveyance duly executed and delivered, conveyed said lands, in fee simple, to said Hunter & Watson, and on the same day by deed so duly executed, conveyed to said Hunter & Watson, in fee simple, all his right in said water power described in said deed as being perpetually leased to said George Hunter, by lease or contract made and executed on behalf of said Canal Company, by Abner Lacock and William Rayen, on .the 8th day of October, A. D. 1835, the quantity of -water thereby leased and intended to be conveyed, being sufficient water from the pool of dam No. 1, meaning the dam aforesaid, or from the canal immediately below-said dam, to drive two pair of 4J feet mill stones, which said dam No. 1 is situated, on the Mahoning river, in said township of Poland, and said Hunter & Watson thereafter openly and notoriously, until the 15th day of November, 1870, held ■ possession of- said lands, water power and appurtenances, claiming to own according to and under the conveyances aforesaid, and having all the title, during all that time, which they acquired by the premises; and on that day said Hunter & Watson, by deed of conveyance duly executed and delivered, conveyed all said 'right and title to said Calvin McCombs, William Brown, James Brown, Simeon D. Brown and James B. Drake, the defendants in this action, except said William Brown, who have continuously, since and hitherto held said lands and water power by virtue of the premises, and claiming thereunder.
    “And the court further find that by means of the said dam, said Pennsylvania & Ohio Canal Company, besides the surplus water aforesaid, still held and had a large amount of water power over and above the reasonable needs of said canal, and for the purposes of availing itself of the revenue reasonably to be derived therefrom, in consideration of a large sum of money, to-wit, $1,450, to it therefor paid by one John Book and S. H. McBride, on the 18th day of November, 1852, by deed of conveyance duly executed and delivered in fee simple, conveyed to said Book & McBride, the lands in said fifth defence of the answer of defendants first described; and therewith also granted to said Book & McBride,-and their heirs, in fee simple, as appurtenant to said lands, the right and privilege of using the surplus water of said dam, when said dam may be full and running over; with the understanding and agreement that at all times the said Pennsylvania & Ohio Canal Company shall have the absolute and reserved right of passing, using, or diverting’ so much of the water of said river from the pool of the dam 'as they should deem advantageous or convenient for the- use of navigation or to supply the mills, or any hydraulic works,, equal in quantity to what was used by the mills on the 7th day of July, 1847, of Hunter & Watson, being the mills aforesaid. The surplus water thereby granted to said Book & McBride, being, in the terms of said deeds, expressly contracted, limited, and restricted by the foregoing conditions, and absolutely suspended whenever the water in the pool of said dam, either from scarcity or by reason of such reserved use or diversion to other objects. And it was also expressed in said deed, that it was understood and agreed by the parties that the said McBride & Book, in taking the water from the pool of the dam, constructing buildings and machinery. for its use, fixing the gauge and using the water, should follow the instructions, and conform to the direction of the principal engineer of said Company, or the person having superintendence of that part of the canal, and that no claims for damages against said Canal Company should ever arise under said deed or agreement by reason of any deficiency of water, suspension of navigation, breaks in the canal or any of its appendages, and that the absolute right was reserved to said Canal Company of occupying and using so much of the foregoing premises as should be necessary for keeping said canal, dam and other works connected therewith, in constant repair, and by said deed said Pennsylvania & Ohio Canal Company, did covenant with said Book & McBride, their heirs and assigns, that said Pennsylvania & Ohio Company would warrant and defend said above granted and bargained premises against all lawful claims whatever, subject, however, to the conditions, limitations, reservations and restrictions above specified, and to them only, and thereupon, said McBride on the 16th day of November, 1853, by deed of conveyance duly executed, conveyed in fee simple, all his interest in said lands to said Book, and thereupon, said Book, on the 7th day of November, 1858, by deed of conveyance duly executed, conveyed said lands in fee simple, to James Brown, defendant herein, and thereupon, said James Brown entered upon said lands and built thereon, and at the southerly end of said dam, a large and valuable grist mill and .saw mill, with bulk heads and flumes, to take the- water from said dam to said mills, and suitable and convenient for the propelling of the wheels and machinery of said mills, and thereby and with the water thus obtained, the said James Brown operated said mills and machinery thereof, continuously until the commencement of this suit, and until his death, since.
    “The court further find, that said plaintiff, at the several times stated in his petition, was the owner of the land in said petition mentioned and described, and as therein stated; and said dam so as aforesaid constructed by said Canal Company, and at the height thereof, as the same was then built, and as the same has since then been maintained, caused the waters of said stream during all the period aforesaid, to be from time to time flowed over and upon a portion of the land owned as aforesaid by said plaintiff, and thereby to injure the use and possession thereof; and the court find that since the dissolution of said Canal Company, and within four years next before the commencement of this suit, the plaintiff has sustained damages by reason of the overflowing of his said land in the sum of three hundred and twenty dollars.
    “ The court, as a matter of law, arising upon the facts above found, find that since the dissolution of said P. & O. Canal Co., as aforesaid, the defendants have not, nor have either of them any right or title as against the plaintiff to maintain said dam at the height aforesaid, to the injury of said plaintiff, as aforesaid.” To which the defendants except.
    Thereupon said defendants moved the court for a new trial in said cause, which being heard and considered by the court is overruled, to which defendants except.
    Thereupon the defendants moved the court to enter judgment upon the finding of facts aforesaid in their favor, which the court refused; to which said defendants excepted.
    It is therefore considered and adjudged by the court, that plaintiff recover of the defendants his damages aforesaid, and the costs of this suit herein to be taxed.

      A petition in error Avas filed by defendants in the district court to reverse the judgment of the .common pleas; and The Cleveland & Mahoning Valley Railway Co., Alvin C. Voris, and George F. Robinson not joining in the petition, they were made defendants. In the district court, on motion of the plaintiffs in error, the case was reserved to this court for decision.

      George M. ■Tuttle and Moses Arrel, for plaintiff in error.
    . The question is as to the porver of the corporation, under its charter. Had the corporation the power, in the contract with Hunter as to the lands north of the river, and Avith the grant of the lands on the south side, to grant the water-right in question, with a perpetuity independent of the continuance of the corporation, and of. the suspension of the navigation of the canal ? If they had not this poAver, the water-right ended at the dissolution of the company. If they had this porver, then the water-right still continues, and it was a bar to the action below.
    This question resolves itself into the question of legislative poAver and legislative intention in enacting the charter of the company. The first question is:
    . 1. Had the Legislature the constitutional poAver to confer upon the corporation the ability to make such a grant ?
    The other is:
    2. Had the Legislature the intention, by this charter to confer such a power ?
    1. This question of power does not respect the capacity of a corporation to take by grant, clothed with an absolute title. In the State of Ohio, corporations in general can, by grant, take by a title which not only enables them to convey an indefeasible title to others, during their corporate existence, but by a course of legislation, Avhich has now continued more than forty years, the property, which they have at dissolution by judgment in proceedings for that purpose, is passed over to trustees of the creditors and stockholders of the corporation. A provision of this kind was enacted as early as 1838 (1 Corwin, 438-9), and in various statutes 1ms been in force ever since.
    Indeed, long before the passage of these statutes, it had come to be a settled rule of the common law that the title to the general property which a corporation had aliened was not affected by its dissolution afterwards. 2 Kent Com., 282; State v. Sherman, 22 Ohio St., 411; Malone v. Toledo, 34 Ohio St., 541; Kayivard v. Mayor fc., 7 N. Y. R., 314; Bexford v. Knight, 11 N. Y., 308 ; Brooklyn v. Park Comm’rs, 45 N. Y., 234; JDingley v. The City of Boston, 100 Mass. R., 544; Chase v. Sutton Manfg Co., 4 Cush., 152 ; Kaldeman v. Penn B. B. Co., 50 Penn, St. R., 425.
    2. The act incorporating the canal company is found in 25 Ohio Laws, p. 3.
    A little attention to the subject matter of this act, and to other peculiar provisions of it, will show that any other intention of the legislature than is here claimed would be highly improbable if not absurd. Its necessary and known route lay along the course of streams important enough to be -declared navigable. Such -was the case with this very stream. Dams were to be built of great height and capacity. In this case it was fourteen feet in height. Large amounts of water-power were to be created. In this case there was a power sufficient to supply two mill-seats, and to run at least four.run of mill-stones, in addition to the ordinary needs of the canal. It would have been absurd that this should go to waste. It would have been especially so in those times, when there was little or no practicable power, superior to horse-power, and in a country where water-power, at the best, was scarce. The Legislature did not intend such power should be lost. They provided for its use in the way in which, among others, they were of opinion it might often be necessaiy, and in which, in this case, it was found necessary to make this -available, by alienation. But at the same time they did this, they provided in section 25, that if, after the completion of the canal, the corporation should fail for twelve months, at anyone time, to keep the canal in repair, then the corporation should thenceforth forever cease, and the charter be forfeited. This provision was under consideration in the case of Ohio v The P. S? O. Canal Co., 28 Ohio St. R., 121, and in that case it was held that this provision furnished an obligatory rule for the courts in a proceeding in quo warranto against the corporation, and that the failure to keep any part of the canal in repair, for the specified time, required the court in such a case to adjudge a forfeiture and dissolution.
    If, therefore, the principles applied by the court below were sound, no person' could safely invest money either in the purchase of water-power, or in the purchase or making of improvements thereon. No prudent person could be expected to do either, for, if he did, it was liable to be sacrificed by the- negleet or the wilful act, continued for a year only, of other persons over whom he had no control. To incorporate such a principle into this charter was to make certain provision for stupendous waste without benefit to any one, or for inveigling the unwary into the investment of large sums of money on unfounded expectations, to be ruinously ■ disappointed, as it is now claimed for the defendant In error, the plaintiffs must be disappointed.
    Section 28 of this charter requires that the act shall be benignly and favorably construed for the purposes therein expressed and declared. One of the very important purposes expressed in the act is to avoid the waste of'waterpower, both the natural, which it should interfere with, and the accumulated, which it should create. Surely a construction of the provisions on that subject which would deter all persons from engaging to carry them out, except such as should misunderstand them, would be neither benign nor favorable. To my mind, it is opposed, both to the- letter of the act and to the spirit of it.

      Homer E. Stewart and B. E. Hoffman for the defendant in error.
    The Legislature did not authorize the Pennsylvania & Ohio Canal Company to make any such grant or conveyance, as against the rights of others, as claimed by plaintiffs in error. See Charter P. $ O. Canal Co., Ohio Laws, Yol. xxv, p. 3; Pittsburgh Lalce Erie B. B. Co. v. Bruce, Pa. St.,-, 1883; Same case, 10 Eng. and Am. R. R. Cases, p. 1; Je ssup v. Loucks, 55 Pa. St., 351; McArthur v. Kelly, 5 Ohio, 139; Cooper v. Williams, 5 Ohio, 139; Buckingham v. Smith, 10 Ohio, 288; Corwin v. Cowan, 12 Ohio St., 633; Longstreet v. Hardaker, 17 Ohio St., 23; Hubbard v. Toledo, 21 Ohio St., 379; Elevator Co. v. Cincinnati, 30 Ohio St., 629; Pox v. Cincinnati, 33 Ohio St., 492; Commonwealth v. The Penna. B. B. Co., 51 Pa. St., 351.
    II. The Legislature had not the constitutional power to confer upon the corporation the ability to make such a grant. See same cases referred to above; also, National Manure Co. v. Donald, 4; Hurlst Nor, 8-19, and Washburne on Easements and Servitudes, 532.
    Or, to sum up the whole matter, we claim that the finding of law by the court below, that “ since the dissolution of the Pennsylvania & Ohio Canal Company, the defendants (now plaintiffs in error) have not, nor either of them, any right or title as against the plaintiff (now defendant in error) to maintain said dam at the height aforesaid, to the injury of said plaintiff aforesaid ” was not erroneous.
   Dickman J.

The Pennsylvania & Ohio Canal Company was incorporated in the year 1827, by a special act of the General Assembly of the State of Ohio, and by a special act of the General Assembly of Pennsylvania, for the purpose of constructing and maintaining a navigable canal from a point on' the Ohio Canal, at Akron, Ohio, to the waters of the Mahoning River, and thence to meet or intersect the Pennsylvania, or Chesapeake & Ohio Canal at or near Pittsburgh, Pennsylvania, etc. On account of the Company’s neglect to keep its canal in repair, it was, in 1872, by proceedings in the nature of a quo warranto, ousted from its corporate franchises received from the State of Ohio, and dissolved, and a trustee was thereupon appointed as required by statute.

The controlling question for our consideration in this case is, whether the right acquired by the company to flow the lands of John Stewart, the defendant in error, by erecting and maintaining the dam across the Mahoning River to the height of fourteen feet, survived and vested in the mill owners after the dissolution of the corporation. The record does not disclose that the defendant ever received any compensation from the company for the burden imposed upon his land, except the benefit that may have accrued from its proximity to the canal, and the facilities of transjjortation thereby secured. And we fail to discover any good reason, why the burden should be of perpetual duration, while the compensating advantages no longer exist.

By the act incorporating the Canal Company, the corporation was authorized to construct a navigable canal, with all necessary locks, basins, waste weirs, dams, and other necessary appendages.

Section 8 provides, that, for the purpose of assuring to the corporation, all the lands, real estate, and waters requisite for most economically constructing' and maintaining the canal, and the works connected therewith, and incident and necessary to the navigation of the same, the corporation might, whenever such lands, and waters could not be obtained by voluntary donation or fair purchase, enter upon, take possession of and use all such lands, real estate, and streams, as might be necessary for the purposes aforesaid — the company satisfying and paying all damages occasioned thereby.

Under the provisions of section 5, the corporation was, authorized and empowered to purchase and hold to them and their successors forever, real and personal estate, to any amount necessary for constructing, maintaining, and repairing the canal, and the works connected therewith; to receive, 'hold, and take all voluntary grants and donations of lands and real estate, which might be made to aid the objects of the corporation; and whenever in either of the ways above designated, the corporation should become possessed of, and own any lands or real estate, which it might be unnecessary to retain, it was empowered to lease, alien, and convey the same, by lease or deed, ■with the corporate seal thereto affixed. But, all lands and waters belonging to the corporation, and necessary for the navigation of the canal and for maintaining and repairing the same, and the works connected therewith, were to be held and applied to and for the objects and purposes of the corporation.

Section 9 contains a provision, that whenever any lands, waters, or streams should be taken and appropriated for the location or construction of the canal, the damages sustained by the opening of the canal, over and above accruing benefits, should be estimated and assessed by commissioners, whenever the proprietor or proprietors could not agree with the corporation, as to the amount of damages or compensation which ought to be allowed and paid therefor.

The act of incorporation, as will be observed, prescribes three modes of acquiring title to lands or real estate — by donation, purchase, and appropriation. It is obvious from the language and provisions of the act, that the legislature intended to authorize the company to acquire by donation or purchase an absolute estate in fee in lands, in aid of the objects of the corporation. Upon a dissolution of the corporation, the lands so held in fee simple would not revert to the original owners, but would remain to be disposed of for the benefit of the creditors and stockholders of the company. And during the life of the corporation, it was empowered to alien and convey in fee simple lands ■which it had thus received by donation and purchase, if it should become unnecessary to retain the same for the purposes of the canal.

But a different rule prevails where lands and easements are acquired by appropriation or proceedings in invitum. The Pennsylvania & Ohio Canal Company had the undoubted right to take and hold lands in fee, but such taking was to be by gift or purchase, and not by right of eminent domain. The right derived under section 8 “ to enter upon, take possession of, and use ” lands, real estate, and streams, cannot be enlarged by implication into an estate beyond the corporate existence of "the company. The property being taken for public use, when that use ceases, it must revert to the owner of the soil from whom it was taken, relieved of the burden or easement which the sovereign power has imposed. And in view of this ultimate reverter, the act of incorporation makes no provision for valuing the land itself appropriated under the right of eminent domain, but only for assessing damages for injury done thereto by the opening of the canal through the same. The eighth section of the act passed February 4, 1825, entitled “An act to provide for the internal improvement of the State of Ohio by navigable canals ” conferred upon the State the power to “ enter upon and use, all and singular, any lands, waters, streams, and materials necessary for the prosecution of the improvements intended by the act.” But, unlike section 3, it further provided that in case any lands, waters, streams, or materials should be taken and' appropriated for the purposes aforesaid, “ the fee simple of the premises so appropriated shall be vested in the State.” By virtue of this express provision for vesting a fee simple, and not from the power to “ enter upon and use,” it was held in Malone v. Toledo, 34 Ohio St., 541, that the title acquired by the State by the appropriation of lands for canal purposes, under the eighth section of the act of February 4,1825, was an absolute estate in fee.

The Warren County Canal Company, incorporated by the General Assembly of Ohio, February 22, 1830, was authorized by its charter “ to enter upon, take and use ” such lands as might be necessary for the location and construction of its canal. In Corwin v. Cowan et al., 12 Ohio St., 629, 632, the court say, “it. is conceded in this case that the Warren County Canal Company, by virtue of its charter, only acquired an easement in the lands appropriated for the location and construction of its canal. This right to occupy and use lands for the purposes of a canal, it is clear, would not carry with it the fee of the lands appropriated for the purpose.” While the State constitu•tion of 1802 guaranteed the inviolability of private property, but declared it should always be subservient to the public welfare, provided a compensation in money be made to the owner, yet, as it had been settled by judicial decision that the legislature, in the exercise of the right of eminent domain, had, under the old constitution, the power to take from the owner the absolute fee simple of his land, without any other compensation than the benefits to accrue from the uses for which the land might be' taken, it should not be held that the legislature intended to empower a corporation to appropriate the fee simple of land, and compensate the owner in resulting benefits, unless the intention be made manifest in plain and unambiguous terms. But, whether the property taken is paid for in money or in accruing benefits and advantages, it should clearly appear by the terms of the act that it was the legislative intent to take a fee before such effect can be given to it. In the absence of express words, a fee will not be deemed to be taken where the purposes of the act will be satisfied, as in the case at bar, with the taking of an easement. Washington Cemetery v. Prospect Park & Coney I. R. R. Co., 68 N. Y., 591. “ In any case,” says Judge Cooley, “ an easement only would be taken, unless the statute plainly contemplated and provided for the appropriation of a larger interest.” Const. Lim., 559.

In the case of Pittsburgh & Lake Erie R. R. Co. v. Bruce, 10 Am. & Eng. R. R. cases, 1, the Supreme Court of Pennsylvania, January, 1883, in construing section 3 of the charter of the Pennsylvania & Ohio Canal Company, .says, “Herein we find a power to take and use lands, waters, and materials as may be necessary to construct and maintain the proposed works, but in this there is no grant of a right to take the fee in land thus occupied; on the contrary, that right is confined to use and occupation only, unless it be enlarged by the deed or gift of the owner. There was then, in this company, but a possession and use; in other words, a right of way, and that for a single purpose, the construction and maintenance of a canal, and when the canal was abandoned, the use and occupation of the land reverted to the owner of the fee. It follows, the possession having thus revested in the owner, he may maintain any action that is necessary to regain his rights or to protect his property.” See also Jessup v. Loucks, 55 Pa. St., 350.

It is obvious, therefore, and in accord with well settled principles, that whatever interest or easement in the lands of the defendant in error, Stewart, the Pennsylvania & Ohio Canal Company may have acquired by the right of eminent domain and not by donation or purchase, expired with the dissolution of the corporation. It is not claimed that the canal company, before or after erecting its dam across the river, acquired by grant, donation, or purchase from Stewart, the right to inundate or flow his lands lying above the dam. And we think that the company obtained no such right by the purchase in fee simple from David Houston of the land on which the south half of the dam was constructed, nor by the agreement with George Hunter for the privilege of using and occupying the site of the north half of the dam, which was owned by Hunter in fee simple, and of which the company never became the owner. Houston and Hunter, as owners of the site upon which the dam was erected, had not the right, as incident to their ownership of the land in fee, to inundate or flow the lands of riparian proprietors above on the same stream, and no claim is advanced that they ever acquired the easement of flowing the lands above by express grant or by prescription. • As riparian proprietors, they had the right to the flowing water — to the simple use of it while it passed along-— as appertaining to their property in the land; but, they were, at the same time, subject to the injunction'of the law, that they must so use their own as not to. injure that which belongs to another. Hunter, it is true, had built on the north side of the stream a dam of the height of about three feet, made of brush, and furnishing water for a grist-mill; but, it had never had any appreciable effect in obstructing the passage of the water, or in raising the low water level of the river, and had been kept up for a short period rather by sufferance than under claim of right. By virtue of the purchase and deed from the owner of one-half of the site of the dam, and by the agreement with the owner of the other half, the canal company succeeded to the rights of the owners and to no more. The company having thus extinguished the title of one proprietor, and secured the concurrence of the other, proceeded to erect the dam to the height that caused the flowage of the lands of Stewart, the defendant in error. The company was fully authorized to erect the dam. But it derived its power to do so from its charter alone, which clothed it with certain powers, privileges, and franchises, to be exercised for public use, and to cease when the public user ceased..

We have seen, that when under the authority “to enter upon, take possession of, and use,” a corporation takes -private property for public use, the interest acquired is but an easement. Yet, an easement may involve the right to possess, use, and enjoy; and when an easement of any sort is taken in property, a certain portion of the property is taken. It may not displace the general possession by the owner of the land, but the person entitled to the easement lias a qualified possession, so far as may be needful for its enjoyment. Eaton v. Boston & Maine R. R., 51 N. H., 504, 511; Morrill v. Mackman, 24 Mich., 279, 284.

The right of flowing land being an easement or interest in the land, its acquisition comes within that class of interests, which the Pennsylvania & Ohio Canal Company was authorized to acquire by entering upon, taking possession of, and using, lands, real estate, and streams, under the provision of section 3 of its charter.

It is contended, that the Canal Company, after the construction of the dam, conveyed to certain mill owners in fee simple, the land upon which one-half of the dam was built, and granted to them and other mill proprietors and their heirs, in fee simple, the right and privilege of using the surplus water of the dam not required for the use of navigation, and that by sundry mesne grants and conveyances, the rights and interest of such mill owners have become the property and inheritance of the plaintiffs in error. As long as the Canal Company kept the canal in repair, in compliance with the requirement in its charter, and until the corporation was dissolved, the mill owners were entitled to the surplus water, and Stewart had no legal ground of complaint, on account of the height of the dam or the burden imposed upon his lands by fiowage. Rut the Canal Company had no power to transmit to others, in perpetuity, privileges and franchises which it derived from the State for public use only, and not to be continued when the consideration for which they were granted no longer existed. And besides, a grant in perpetuar», of the privilege of using the surplus water of the canal would be, by reasonable intendment, contingent upon the perpetuity of the corporation, as otherwise there would be no surplus water, as such, not required for the purposes of the canal.

In the case of Jessup v. Loucks, supra, a navigation company had a right, under their charter, to build and maintain dams for the purpose of their navigation, and to sell surplus water. They granted to a predecessor of defendants, his heirs and assigns forever, the full use of the water not wanted for the navigation; with privilege to keep the dam in question in good order. The works fell into entire disuse; the defendants rebuilt the dam, and claimed to maintain it under the grant. It was held, that the company had no power to grant the rights claimed. The user by the company having ceased, and the works being abandoned, the authority of the company over them ceased with the user, and the easement acquired reverted to the owners of the property from whom taken. The grant itself being of an incident connected with or arising out of the principal object in chartering the company, necessarily expired with the principal. In the nature of things, there could be no fee- simple estate in it. The grant might be perpetual, if the works continued to be so, but its perpetuity would depend upon that. The company could not be compelled to keep up their works, in order to furnish a surplus water to fill the terms of the grant. Property taken in the name of the public, for public and general use, could not be diverted to private and individual purposes.

It is provided in section 19 of the act incorporating the Canal Company, that in consideration of the expenses the corporation would be subjected to in constructing the canal and other works therewith connected, and in improving and keeping the same in repair, the canal and all such other works, together with all tolls, rents, and profits arising therefrom, should be vested in the stockholders, their heirs and assigns forever, as tenants in common, in proportion to their respective shares, exempt and free from the payment of any tax, imposition, or assessment. But the power was reserved to the Statfe, at any time after the expiration of fifty years from the time of the completion of the canal, to purchase and hold all that part thereof lying within the limits of this State. And by section 23, the act of incorporation was to be deemed a public act, and to be benignly and favorably construed for tlie purposes therein expressed, in all courts and places whatsoever. These sections refer more to the position of the company, as against the commonwealth, than-as against individuals whose property might be appropriated under the-right of eminent domain. As against the State, -section 19 would be liberally construed in favor of the corporation, but there would be no presumption in favor of the corporation as against individuals whose lands had been appropriated for public use, and which public use had ceased.

Various pleas of the statute of limitations were filed by the defendants in the court below, but, in our view, they do not constitute a valid defence to the original action, and as they do not seem to have been relied upon in any stage of the proceedings, we deem it unnecessary to consider them.

Finding xro error iix the judgment and proceedings of the court below, the judgment of the court of common pleas must be affirmed.

Judgment accordingly.


author: McCauley, J.

text:
    Call v. Seymour.
    S. S. & Co. sold and delivered a threshing machine to K. upon the conditions :
    1. That the title, ownership, or possession of the machine should not pass from them to K. until the notes given for the purchase-price should be paid in full.
    2. That S. S. & Co. should have power to declare the notes, so given, due at any time they should deem the debt insecure, and to sell the machine at public or private sale, and apply the proceeds upon the unpaid balance of the purchase-price.

      Held: 1. That under the first condition, the property in the machine did not pass to K. until he had paid the purchase-price.
    2. That the right to sell the property, and apply the proceeds, as provided in the second condition, did not divest the sellers of their right of property reserved in the first condition.
    Error to the District Court of Putnam County.

      The action in the common pleas was brought by the manufacturing association of Seymour, Sabin, & Co., against the plaintiff in error, Call, a constable, and Crawfis and Cannie the sureties on his official bond. The plaintiff alleged that it had sold a threshing machine to one Kagy for the sum of $440, for which it had taken his three notes, or contracts in the form of notes. These notes were alike in form, and became due on January 1,1879, January 1, 1880, and January 1,1881, respectively.
    The following is a -copy of the note first falling due :
    “ Leipsic, Ohio, August 1, 1878.
    On the first of January, 1879, the subscriber, whose post office is Leipsic, county of Putnam, and State of Ohio, promise to pay Seymour, Sabin, & Co., or order, one hundred and forty-seven dollars, for' value received, with interest at eight per cent, per annum till paid, with exchange on New York, payable at the national Exchange Bank, Ottawa, Ohio. The express conditions of the sale and purchase of the Separator and Horse Power, for which this note is given, is such, that the title, ownership or possession does not pass from the said Seymour, Sabin, & Co., until t this note, with interest, is paid in full. The said Seymour, Sabin, & Co., have full power to declare this note due and take possession of said Separator and Horse Power at any time they may deem this note insecure, even before maturity of the note, and to' sell the said machine at public or private sale, the proceeds to be applied upon the unpaid balance of the purchase price.
    .Leander Kagy.”
    The plaintiff in its petition alleged that the defendant Call, as constable, on or about the 15th day of March, 1879, took possession of the machine under an order of attachment duly issued to him as constable of Blanchard township, Putnam County; and that when he so took possession of the machine, he had full knowledge that Kagy was not the owner of the machine, but that the ownership therein Avas claimed by the plaintiff, the manufacturing association of S. S. & Co. The petition further alleged that Call, the constable, with full knowledge of the claim of the plaintiff in and to the machine, sold it at a constable’s sale, and further alleged that the purchase price of the machine remained wholly unpaid, and that the return of the machine to S. S. & Co. had been demanded of Call, the constable, before the sale by him, and of the purchaser after constable sale. And that the constable and the purchaser had each refused to surrender or return the property.
    A demurrer Avas sustained to the petition in the common pleas, and judgment given for defendants.
    This judgment Avas reversed by the district court. It is now sought to reverse the judgment of the district court.

      Wm. C. 6r. Krauss, for plaintiff in error.
    The cases relied on by defendant in error are mere rent contracts with the option to purchase, while the case at bar Avas a conditioned sale with absolute agreement to pay, and this was an evasion of the registration larv. Ilart v. Barney, 7 Fed. Rep., 543, 552 ; Hervey v. Locomotive Works, 93 U. S., 664, 672; 1 Benjamin on Sales, § 452; Boynton v. Libby, 62 Me., 253; Bugbee v. Stevens, 53 Vt., 389; McClelland v. Nichols, 24 Minn., 176; Williams v. Porter, 41 Wis., 422; Bunn v. Valley Lumber Co., 51 Wis., 376; Singer Co. v. Holcomb, 40 IoAva, 33; Myer v. Car Co., 102 U. S., 110; Whitcomb v. Woodworth, Yt. Sup. Ct., Jan. 7, 1882, and numerous cases in Penn., e.g., Martin y. Mathiot, 14 S. & R., 214; Heryford v. Davis, 102 U. S., 235.

      C. J. Swan, for defendant in error,
    relied on Sage v. Slentz, 23 Ohio St., 1; Sanders v. Keber, 28 Ohio St., 630, and cited 1 Parsons on Con., 538; Maynard v. Anderson, 54 N.Y., 641; Wait’s Dig. Par., 109, p. 664; 40 N.Y., 341; 15 N.Y., 409; 3 Gray, 546; 2 Pick., 516; Story on Sales, §§ 304-313.
   McCauley, J.

When the constable took possession of the property, the first instalment of the purchase price was past clue and no part of the purchase price had been paid. If the contract under which the machine whs de-. livered to Kagy was effectual to retain to Seymour, Sabin, & Co., the title to the property until the price had been paid, their right to the machine when it was taken by the constable was complete. The agreement between Kagy and Seymour, Sabin, & Co., by which the latter retained the title and ownership of the machine until the purchase price was fully paid, was a contract that the seller eoulcl make by reason of his right to determine for himself upon what terms and conditions he would part with his property; and when the conditions proposed were assented to by Kagy, the purchaser, the conditions proposed became binding upon him; and, if not to all purchasers from him, certainly to all purchasers with knowledge of the rights of the seller. The rule where property is delivered to a purchaser upon condition that title shall not pass until the price has been paid, that the condition must be performed to divest the seller of his property, is one of such universal application, that it no longer rests upon the mere weight of authority. Of the many cases enforcing this rule, a few of the more recent and direct are : Sage v. Slentz, 23 Ohio St., 1; Sanders v. Keber Miller, 28 Ohio St., 630; Fosdick v. Schall, 99 U. S., 235; McFarland v. Farmer, 42 N. H., 386; Stadtfeld v. Huntsman, 92 Pa. St., 53; Benner v. Puffer, 114 Mass., 376; Hasbrouck v. Lounsberry, 26 N. Y., 598; Ballard v. Burgett, 40 N. Y., 314; Boon v. Moss, 70 N. Y., 465; Cole v. Berry, 42 N. J. L., 308; Wangler v. Franklin, 70 Mo., 659; Bradshaw v. Warner, 54 Ind., 58.

The note in this case provided that if the seller should deem the debt insecure, he should have the right to declare the notes due, and sell the property at public or private sale, and apply the proceeds upon the unpaid balance of the purchase price. It is urged for plaintiff in error that this provision of the contract indicates that the sale is not one upon condition, but is a complete sale and delivery that passes the title.

If this provision of the contract stood alone, the effect claimed for it would probably follow. This part of the contract looks as if a sale and delivery passing the title to the purchaser was intended; but all parts of the contract are to be taken together to arrive at its full legal effect. This provision of the contract does not secure to the sellers any right they did not have without it, assuming that their reservation of title under the first condition was effective. It stipulated for the right to declare the notes due before maturity, and that after the property was sold the proceeds should be applied to the payment of the purchase price, and thus relieve the debtor; while, if the sellers remained the owners, their right to sell was not restricted by any agreement as to the application of the proceeds of the sale. The condition was, therefore, a concession to the purchaser, the legal effect of which would be that after the purchase money was paid in full, if any remained it should be accounted for by the seller to the buyer. This mode of dealing seems inconsistent with the relation of seller and buyer, and would be so in cases not controlled by special contract. The reason why the title to the property did not pass was that it was agreed that it should not, and that no subsequent agreement or condition between the parties was made or assented to that waived this condition.

Judgment affirmed.