author: Minshall, C. J.

text:
    Armstrong v. National Bank.

      Rule governing negotiable instruments payable to fictitious person or order — ■Where it applies — Where it does not — Checks payable to non-existing person or order— Duties of banks in relation thereto — Must be satisfied of genuineness of indorsement.

    1. The rule that a negotiable instrument made payable to a fictitious person or order, is, in 'effect, an instrument payable to bearer, applies only where it is so made with the knowledge of the party making it, and does not apply where the maker, supposing the payee to be a real person and intending payment to be made to such person or his order, is induced by the fraud of another to so draw it.
    2. Where, by the fraud of a third person, a depositor of a bank is induced to draw his check payable to a non-existing person, or order, the drawer being in ignorance of the fact and intending no fraud, the bank on which the check is so drawn, is not authorized to pay it and charge the amount to the account of its customer, on the indorsement of the party ¡(resenting it, although it appears to have been previously indorsed by the party named as payee. Such indorsement is, in effect, a forgery, and the payment thereon by the bank, confers no right on it as against the drawer of the check.
    '3. In the absence of a course of dealing or understanding to the contrary between the parties, the duty of a banker is, in all cases, to pay to the person named, or his order, where the terms of the check are such; and he may, and should withhold payment until fully satisfied as to the genuineness of the indorsement.
    (Decided October 29, 1889.)
    Error to the Circuit Court of Meigs County.
    The original action was a suit by Kate S. D. Armstrong against The Pomeroy National Bank to recover of the bank the sum of $450.00, due her upon a deposit she had made with the bank. She averred that she had given a check payable to ■one William Brown or order, that had been procured from her by the fraudulent practices of one Grimes, who represented himself as acting for the. said Brown in the negotiation of a note; that there Avas no such person as Brown, and that the note was fraudulent, of all Avhich she'was ignorant at the time ; that Grimes afterward indorsed the check “ William Brown,” and, adding his own indorsement, presented it to the bank who paid it.

      The principal ground of defense was that plaintiff was negligent in delivering the check to Grimes, and that it used ordinary care in paying it to Grimes, indorsed as it was. The case was tried to the court who, upon the request of the parties, found its conclusions of law and fact separately, as follows:
    FINDING OF FACTS.

      “ 1. That the defendant is a banking corporation organized under the laws of the United States.
    “ 2. That on August 31, A. D. 1882, plaintiff had on deposit with defendant, subject to be drawn out by her check, a sum of money greater than the amount of the check hereinafter to be described.
    “3. That on said 31st day of August, A. D. 1882, one J. :S. Grimes, by a fraud practiced upon plaintiff, by negotiating to her as the pretended agent of one William Brown, a fictitious person, a forged promissory note negotiable in form, induced her to draw and deliver to him, as pretended agent of said Brown, the following check:
    Pomeroy, O., August 31, 1882.
    Pomeroy National Bank, pay to William Brown or order, .four hundred and fifty dollars, ($450).
    (Signed) K. S. D. Armstrong.
    “ 4. That there was no such person as the above named William Brown; that plaintiff supposed (at the time) there was, and believed she delivered the check to said Brown, through his agent, said Grimes.

      “ 5. That she was not careless or negligent respecting the transaction, but instead was ordinarily careful and prudent in respect thereof. .

      “ 6. That said Grimes on the same day, (August 31,1882), wrote 'the name William Brown across the back of said check and presented it to defendant for payment; that defendant having no knowledge respecting the way Grimes had obtained it, or that the name “ William Brown ” was the name of a fictitious person, paid the same and charged the amount thereof against the account of the plaintiff.
    “ 7. That defendant in paying the check to Grimes made the usual inquiries respecting his identity, and in other respects was ordinarily careful and prudent in relation to the transaction.
    “ 8. That plaintiff before the commencement of this action demanded of defendant the payment of said sum by it paid to said Grimes, which defendant then refused, and has not, either before or since said demand, paid the same or any part thereof.”
    CONCLUSION OP LAW. '
    “That the payment of the check by. defendant to said Grimes was not (by the facts above found) authorized by said plaintiff, and could not legally be made a charge against her in the account between her and the defendant repecting the money she had on deposit with it, and that the amount named in the check, together with interest thereon, at the rate of six per cent, from the day she made the demand, above found to have been made, for its payment to her, is due and payable from defendant to her.”
    A motion for a new trial having been made and overruled, judgment was entered for the plaintiff upon the findings.
    The judgment of the common pleas was reversed on error' by the circuit court; and this proceeding is prosecuted to obtain a reversal of the circuit court and an affirmance of the common pleas.

      E. A. Guthrie, for plaintiff in error.
    The check made by the plaintiff was drawn on a deposit she had in the bank She thus set apart and appropriated to William Brown’s use so much of her deposit as-would be necessary to satisfy it. Morrison v. Bailey et al., 5 Ohio St. 13-17 ; Andrew et al. v. Blachly et al., 11 Ohio St. 89 ; Dodge v. Nat. Exchange Bank, 30 Ohio St. 1-5; Merchants’ Bank v. State Bank, 10 Wallace, 647 ; Blair and Hodge v. Wilson, 28 Grat. 170.

      But in the case at bar there was no “ William Brown.” She had been induced by the fraud of Grimes to draw the check payable to “ William Brown or order,” — she believing him to exist, and that Grimes was acting as his agent. There being then no payee of the check, the right to use it, as such, was not assigned to any one. The paper was not in fact a check, a payee being a necessary party to that instrument. Merchants’ Bank v. State Bank, ut supra; 2 Daniel on Neg. Instruments, 528 and notes, 532; McIntosh & Lytle, 26 Minn.
    It is to be remembered that Mrs. Armstrong was found to have been careful and prudent in respect of the issuing of the check. Grimes represented himself to be the agent of “ William Brown,” authorized to borrow money on “ Brown’s ” promissory note. He succeeded in deceiving her, and she lent the money, not to Grimes, but to “ Brown.” She drew her check payable to “ Brown ” or his order. This she delivered to Grimes, not in his own right, but as the agent of the pretended “Brown.” Now, as there was no “ Brown,” and the check was handed to Grimes as “ Brown’s ” agent, it could only become his, as such agent, and in no other sense. Therefore the instrument never became a valid check for any purposé. It never was delivered. Crawford v. West Side Bank, 100 N. Y. 50.
    How then could Grimes render it valid ? The circuit court seems to have held, that he could do so, by the commission of a second crime : by forging “ Brown’s ” indorsement.
    Mrs. Armstrong exercised caution to the extent of requiring the bank to pay out of her deposit the money to “ William Brown or order.”
    This the bank did not do; but paid it on the forgery of e‘ Brown’s ” indorsement. Although the finding is in general terms that “ the defendant in paying the check to Grimes made the usual inquiries in respect to his identity, and in other respects was ordinarily careful and prudent in respect to the transaction,” this must be taken in connection with the specific finding that Grimes had forged the indorsement of the check. Now in respect to the forgery and the payment of the check to Grimes on the strength of that forgery, these were
      res inter alios acta, as to Mrs. Armstrong. Grimes was not her agent. She had dealt with him as “ Brown’s ” agent. She had given the bank no right to treat him otherwise than at arm’s length. She had even been prudent enough to say to the bank “ pay his money to Brown or his order.” Under the law, could the bank be justified in paying it otherwise? Ellis & Morton v. Ohio Life Ins. and Trust Co., 4 Ohio St. 667; Hall v. Fuller, 5 B. & C. 750; Johnson v. Wendle, 3 Bing. N. C. 225; Roberts v. Tucker, 12 Q. B. 560.

      “ The duty of a banker is to pay the checks and bills of his customer drawn payable to order, to the person who becomes holder by a genuine indorsement; and he can not charge him with payments made otherwise, unless the circumstances amount to a direction from the customer to the banker to pay the paper without reference to the genuineness of the indorsements, or are equivalent to a subsequent admission that the indorsement is genuine, in reliance on which the banker is induced to alter his position.” Dodge v. Nat. Exchange Bank, 20 Ohio St. 234; same v. same, 30 Ohio St. 1.
    In the case at bar, Mrs. Armstrong knew nothing, and did nothing, concerning the check or its payment after she passed it to Grimes. Morgan v. Bank of State of New York, 11 N. Y. 404; Graves v. American Exchange Bank, 17 N. Y. 205; Welsh v. German American Bank, 73 N. Y. 424; Indiana Nat. Bank v. Holtsclaw, 98 Ind. 85 ; Canal Bank v. Bank of Albany, 1 Hill 287 ; 2 Daniel on Neg. Instruments, 611; 2 Parsons on Notes and Bills, 81; Wheeler v. Gould, 20 Pick. 545 ; Crawford v. West Side Bank, 100 N. Y. 50; Star Fire Ins. Co. v. New Hampshire Nat. Bank, 60 N. H. 442.
    Although the check was made to an imaginary person, it is not the case of a check to a “ fictitious person,” as mentioned in the books. The latter are cases where the maker of the instrument purposely draws it to a fictitious person ; these are considered as made to order,- and are transferable by mere delivery. Forbs & King v. Espy, Heidlebach & Co., 21 Ohio St. 483; 1 Daniel on Neg. Instruments, 116, 117, 118, 119, 120.

      Nor does it present the case of a check drawD payable to a particular number, or to “ bills payable,” which are also construed as payable to order. 2 Parsons on Notes and Bills 65.

      F. G. Bussell, for defendant in error.
    The first question presented is, what was the legal effect of the paper in the hands of Grimes? I say, although it was payable to the order of William Brown, there being no such person it was payable to bearer, therefore, did not need the indorsement of Brown. 2d Add. Morse on Banking, 254; Levy v. Bank of America, 24 La. 220; Cited in 13 Am. Rep. 124; Abbott’s Trial Evidence, 453, Paragraph 127 ; Lane v. Krekle, 22 Iowa, 399; 21 Ohio St. 474; Blodget v. Jackson, 40 N. H. 21; First Nat. Bank of Parkersburg v. Johns, 22 W. Va. 520; Randolph on Commercial Paper, secs. 161, 162, 163, 164, 697 ; 2d Nebraska, Rogers v. Ware, 29.
    Secondly — That plaintiff having made her check and delivered the same into the hands of the said J. S. Grimes, the agent of a fictitious person, she authorized the said J. S. Grimes, to do anything with the check that was necessary to be done to make the instrument what she had authorized it to be, and cite: Daniels on Negotiable Instruments, Vol. 1, sec. 139. See also same section 136 and note 3; 40 N. H. 21; 2d edition Morse on Banking, 254; 1 Vol. Wait’s, Actions and Defenses, 508, Par. 12; Levy v. Bank of America, 24 La. 220; cited in 13 Am. Rep. 124; Smith v. Mechanics' & Traders Bank, 6 Am. 610; Randolph on Commercial Paper, secs. 161, 162, 163, 164, 697 ; Rogers v. Ware, 2 Nebraska, 29 ; Lane v. Kreickle, 22 Iowa, 399.
    Thirdly — A bank in the payment of a check is only required to know the genuineness of the drawer’s signature and the person to whom they pay the money, and in this case it is admitted they know both, and cite : 1 Vol. Wait’s, Actions and Defenses, 508, Paragraph 12; Levy v. Bank of America, 24 La. 220; cited in 13 Am. Rep. 124; Randolph on Commercial Paper, sec. 697.
    Fourthly — Where two innocent persons must suffer, the one who first placed the means in the hands of the party to commit the fraud must suffer the loss, and cite: Levy v. Bank of America, 24 La. 220; cited 13 Am Reports, 124; Lane v. Kreickle, 22 Iowa, 399; Griggs v. Home, 31 Barbour, 100; Putnam v. Sullivan, 4 Mass. 45 ; cited 3 Am. Dec. 206; Bank v. Smith, 55 N H. 593 ; Daniel on Negotiable Instruments, Par. 805; First National Bank of Parkersburg, v. Johns, 22 W. Va. 520; cited 46 Am. Reports, 506.
    While in the case at bar both parties are found by the court to have been ordinarily careful, yet that must be taken in connection with the facts in the particular case, and the first negligence is cast upon the party who was so easily deceived, and placed her check in the hands of the said Grimes, to enable him to commit the fraud. 24 La. 220; Daniels on Negotiable Instruments, Par. 805; Griggs v. Home, 31 Barbour, 100; Bank v. Smith, 55 N. H. 593.
   Minshall, C. J.

This case is in its general features analogous to that of Dodge v. The National Exchange Bank, 20 Ohio St. 234, and should, as we think, be ruled by it. There a paymaster of the United States, who kept his account at the bank, drew his check on the bank in payment of an indebtedness of the United States to Frederick B. Dodge, and delivered it to the person who presented the certificate, he representing himself to be Dodge. This representation was false, and the person making it was a thief. Being a stranger to the paymaster, he at first refused to pay the claim to him, but on his assuring him that he could identify himself at the bank, the paymaster drew the check payable to Dodge or order, and delivered it to the person presenting the certificate. The amount of the check was paid him by the bank on his representing himself to be Dodge and indorsing the check in that name. The bank had no knowledge of what had transpired prior to the presentation of the check for payment, and supposed it was paying it to the right person. In deciding the case the court laid down the following principles :

“ 1. The duty of a banker is to pay the checks and bills of his customer, drawn payable to order, to the person who becomes holder by a genuine endorsement; and he can not charge him with payments made otherwise, unless the circumstances amount to a direction from the customer to the banker to pay the paper without reference to the genuineness of the indorsement, or are equivalent to a subsequent admission that the indorsement is genuine, in reliance on which the banker is induced to alter his position.

“2. When there is no fraud, or special understanding between the banker and his customer, the liability of the banker for paying a check upon a forged indorsement, can not be affected by conduct of the customer in drawing the check, of which the banker had no notice.”

The case was again brought to this court upon a question of evidence, and was assigned to and disposed of by the first commission, which, after a full and careful re-examination, approved and followed the former decision; and the principles announced in the case after such careful consideration must determine this one.

By the fraud of one Grimes the plaintiff was induced to purchase a note that had no real existence as a security. She is found by the court to have been ordinarily careful and prudent in the transaction, but was deceived. She supposed that she was purchasing a valid security belonging to a man, as represented by Grimes, by the name of William Brown, and for whom, as he represented, he was acting as agent, and gave to the assumed agent for Brown a check for the amount, payable to Brown or his order. -Now it is evident, both upon reason and the authority of the previous decisions, that the circumstances under which the plaintiff was induced to give the check, even though calculated to arouse suspicion on her part, cannot modify the duty required of the bank in the matter of paying or not paying the check. It is not claimed that the bank had any knowledge of how or under what circumstances Grimes had obtained the check, and there is no finding of any such course of dealing between the bank and the plaintiff as would have authorized it to depart from the general duty of a bank in paying the checks of its customers, drawn payable to a certain person or order. It was its duty to pay to the person named or his order, and to withhold payment until it was satisfied, both as to the identity of the payee and the genuineness of his signature. Morse on Banking, sec. 474; Robarts v. Tucker, 16 Q. B. 560, per Maule, J., at p. 578.

It is found that the bank made the usual inquiries respecting the identity of Grimes, and in other respects was ordinarily careful and prudent in relation to the transaction; but this must be taken in connection with the further fact that Grimes was not the payee of the check, and that his indorsement, without the genuine indorsement of the payee, could confer no title upon the holder of the check, or any interest in it, as against the drawer. There is no doubt,” says Lord Kenyon in Tatlock v. Harris, 3 T. R. at p. 181, u but that the indorsee of a bill of exchange, payable to order, must in deriving his title, prove the handwriting of the first indorser.” See Mead v. Young, 4 T. R. 28, 30; 2 Parsons N. & B. 595. The indorsement on the check, purporting to be that of the payee,. Brown, had been placed there by Grimes, and was either a forgery or a fraud, and, for the purposes of this case, it is not material which it is termed. As to it the bank acted upon the representations of Grimes, and did not otherwise know whether it was genuine or not. As said in Dodge v. The Bank, 30 Ohio St. 1: The rightful possession of a check by no means carries with it or implies a right to demand or receive payment of it, without the genuine indorsement of the person to whose order it is made payable;” and if a banker accept or undertake to pay a check, he must see to it, at his peril, that he pays according to the terms of the order, and to the party named therein, or to one holding it under the genuine indorsement of such payee. * * * And this is true, whether the defendant exercised the degree of caution which bankers usually do in such cases, or not. The question is, was the check paid to the party to whom, by its terms, it was made payable?” Therefore, the court rightly concluded, as a question of law from the facts found, that the payment of' the check by the defendant was not authorized by the plaintiff, and that it could not rightly be charged to her account.

The fact that the check was made payable to a person that had no existence does not alter the rights of the plaintiff as-against the bank, for she supposed that Brown was a real person, and intended that payment should be made to such person. The doctrine that treats a check or bill made payable to a fictitious person, as one made payable to bearer, and so negotiable without indorsément, applies only where it is so drawn with the knowledge of the parties. Tatlock v. Harris, 3 T. R. 174, 180; Vere v. Lewis, Id. 182 ; Minet v. Gibson, Id. 481; s. c. in the House of Lords on error, Gibson v. Minet, 1 H. Bl. 569 ; Collis v. Emett, 1 H. Bl. 313 ; Gibson v. Hunter, 2 H Bl. 187. The doctrine that a bill payable to a fictitious person or order, is equivalent to one payable to bearer, had its origin in these cases, which all grew out of bills drawn by Levisay & Co., bankrupts, payable to a fictitious person or order, and were accepted by Gibson & Co.; but it will be noticed that the holding in each case was upon the express ground, that the acceptor knew at the time of his acceptance that the bill was payable to a fictitious person ; and but for this fact the fictitious indorsement would have been held to be a forgery — some of the judges expressing a doubt whether it was not so, although its character was known to the acceptor. (3 T. R 181)1 These cases will be found reviewed in a note to Bennett v. Farrell, 1 Campb. 130. It was held in this case that a bill made payable to a fictitious person or order, is neither payable to the order of the drawer or bearer, but is completely void. But in an addendum to the case, at page 180c of the report, Lord Ellenborough observes that this holding must be taken with this qualification: “ unless it can be shown that the circumstance of the payee being a fictitious person was known to the acceptor.” The rule with this qualification is stated as the law, in Byles on Bills, 73. See also t(. the same effect Forbes v. Espy, 21 Ohio St. 483; 1 Rand. Com Paper, § 162, § 163, § 164; 2 Parsons, N. & B. 591 and note (a). Mr. Daniels in his work on Negotiable Instruments, § 139, states the rule to be general, but, as shown by Mr. Randolph, the cases do not bear out the text. 1 Rand. Com. Paper, § 164 note (4). And upon principle we do not see how the law could be held to be otherwise. For if the fictitious character of the payee is unknown to the drawer, whoever indorses the paper in that name with intent to defraud, perpetrates a forgery and the indorsement is void, a general intent to defraud being sufficient to constitute the offense.

The case of Lane v. Krekle, 22 Iowa, 399, is not in point; for there the note was made payable to a fictitious person “ or bearer,” and passed by delivery without indorsement. The case of Phillips v. Im Thurn, 114 Eng. C. L. 694, cited by the learned judge, is clearly distinguishable from the case before ' us. There the signature of the drawer as well as the indorsement was a forgery ; but the defendant, the acceptor, was held liable because the plaintiff discounted the paper, relying in good faith upon the acceptance of the defendant. The case was finally disposed of on a case stated, reported in 1 Law Rep. C. P. 463. The ground of the decision appears from the following observations of Keating, J., p. 472 : “ I think, upon the facts stated in this special case, that it was not competent to the defendant to deny the genuineness of this bill. He knew that the plaintiffs were willing to advance money upon the bill only upon his vouching by his acceptance of it the authenticity of the drawing. His acceptance amounted to a representation to the plaintiffs, which enabled the person representing Plana to obtain money from the plaintiffs on the bill.” The decision in this case simply followed a well recognized principle in the law of notes and bills. It is thus stated by Mr. Smith : “Though the drawer’s signature be forged, the drawee, if he accepts the bill, is bound to pay it, provided it be in the hands of a holder bona fide and for value, for the drawee’s acceptance admits the drawer’s handwriting to be genuine.” Smith’s Mercantile Law, 334. Now, Mrs. Armstrong can in no way be said to have affirmed by any act of hers that the indorsement upon the check was genuine, for there was no indorsement on it when it left her hands.

The case of Rogers v. Ware, 2 Neb. 29, cited by counsel for defendant in error, does not support his contention. The case of Ort v. Fowler, 31 Kan. 478, was rested upon a number of grounds; and, in so far as it may have been on the ground that a note made payable to a fictitious person or order is in effect payable to bearer, irrespective of the knowledge of the maker, it simply follows the authority of 1 Daniels Neg. Inst. § 139, which we have shown is not borne out by the cases relied on.

If the drawer of a check, acting in good faith, makes it 'payable to a certain person or order, supposing there is such person, when in fact there is none, no good reason can be perceived why the banker should be excused if he pay the check to a fraudulent holder upon any less precautions, than if it had been made payable to a real person ; in other words, why he should not be required to use the same precautions in the one case as in the other; that is, determine whether the indorsement is a genuine one or not. The fact that the payee is a non-existing person does not increase the liability of the bank to be deceived by the indorsement. The fact is that an ordinarily prudent banker would be less liable to be deceived into a mistaken payment by a fictitious indorsement such as this was, than by a simple forgery. The determination of the character of any indorsement involves the ascertainment of two things : (1) the identity of the indorser, and (2) the genuineness of his signature; and no careful banker would pay upon the faith of the genuineness of any name, until he had fully satisfied himself both as to the identity of the person and the genuineness of his signature. Now, a careful banker may be deceived as to the signature of a person with whose identity he may be familiar; but he is less liable to be deceived where both the signature and the person whose signature it purports to be, are unknown to him. In making the inquiry required in such case to warrant him in acting, he will either learn that there is no such person, or that no credible information can be obtained as to his existence, which, with an ordinarily prudent banker, would be the same as actual knowledge that there is no such person, and he would withhold payment, as he would have the right to do in such case. But still, if he should be deceived as to the existence of the person, he would, nevertheless, require to be satisfied as to the genuineness of the signature. Of this, however, he could not be through his skill in such matters, and on which bankers ordinarily rely, for he would be without any standard, of comparison, and he could have no knowledge of the handwriting of the supposed person, for there is no such person. So that, if he acts at all, it must be upon the confidence he may place in the knowledge of some other person, and if he choose to act upon this, and make, instead of withholding, jiayment, he acts at his peril and must sustain whatever loss may ensue. It is a saying frequently repeated in “ The Doctor and Student,” that he who loveth peril shall pei'ish in it.” In other words, where a person has a safe way and abandons it for one of uncertainty, he can blame no one but himself if he meets with misfortune.

The case of Vagliano Brothers v. The Bank of England, recently decided in England by the Court of Appeal, 23 Q. B. D. 243, and called to my attention since the above opinion was written, fully supports the conclusion we have reached.

Judgment of the oirouit court reversed, and that of the common pleas affirmed.


source: Caselaw Access Project

author: Dickman, J.

license: Public Domain

text:
    Finley v. Whitley.

      Bill of exceptions— When not a part of the record— When court will not weigh the evidence.

    1. A bill of exceptions that is not taken at the trial term or within thirty days thereafter, but taken on overruling a motion for a new trial that has been continued to a term of the court subsequent to the trial, can not be regarded as a part o£ the record, for the review of alleged errors of law occurring at the trial, in the admission or rejection of evidence, or in the charge of the court or refusal to charge as requested.
    2. Where, on overruling such motion for a new trial, the bill of exceptions so taken embodies the charge of the court as well as all the evidence, this court will not weigh the evidence for the purpose of determining, whether the verdict was sustained by sufficient evidence, or was contrary to law, or whether substantial justice has been done, or a new trial ought to have been granted.
    (Decided October 29, 1889.)
    Error to the Circuit Court of Union County.

      P. B. Kerr and Cameron Woodburn, for plaintiffs in error.

      S. S. Gardiner, W. T. Scopes and D. W. Ayers, for defendant in error.
   Dickman, J.

The original action was commenced in the Court of Common Pleas of Union county by William Whitley, the defendant in error, against J. J. Finley and P. R. Kerr, the plaintiffs in error. . Whitley in his petition alleged, that on the 30th day of July, A. D. 1885, the defendants imprisoned him and deprived him of his liberty for the space of one hour, unlawfully and with force, on a pretended charge of assault; that while he was so imprisoned, the defendants took and hauled away of his property one large load of unthreshed wheat, of the value of $18.00, and after obtaining such property, released him, and thereafter refused to prosecute the charge of assault. * * * He asked judgment against the defendants for damages in the sum of two thousand dollars.

Finley, for his separate answer to the petition, denied each and e.very allegation in the petition contained. Kerr, for answer, denied each and every allegation contained in the petition, and further said, that on the 30th day of July, 1885, he filed with one F. M. McAdams, a justice of the peace, an affidavit charging Whitley with an unlawful assault upon him ; that the justice issued a warrant for the arrest of Whitley, and deputed J. J. Finley to serve the same; that he went with Finley to the home of Whitley, and pointed out Whitley to Finley, who then and there arrested Whitley; and that he, Kerr, took no further part in the arrest, and did not further prosecute the plaintiff on the charge.

The case was tried to a jury, at the February term, 1886, and a verdict was returned in favor of the plaintiff for $370.62. A motion for a new trial was made and continued to the next term.

No bill of exceptions was allowed and signed at the trial term, nor within thirty days thereafter. At the next, or May term, 1886, the motion for a new trial was overruled, and judgment was rendered on the verdict for $200.00, upon the plaintiff’s consenting to a remittitur of all above that surli. On the overruling of the motion for a new trial, a bill of exceptions was taken by the defendants, containing all the testimony given on the trial by either party, together with the charge of the court to the jury. The bill of exceptions also set forth, that during the progress of the trial, the defendants excepted to certain rulings of the court, whereby testimony offered by the plaintiff was allowed to go to the jury, and testimony offered by the defendants was excluded; and, that the defendants excepted to a portion of the charge of the court to the jury, and to the refusal of the court to charge the jury as by them requested. But no exception, taken by the defendants during the trial, was reduced to writing and presented to the court for allowance during the trial term, or within the statutory period after such term.

On petition in error to the circuit court, the judgment of the court of common pleas was affirmed, and this proceeding is instituted to reverse the judgment of the circuit court.

Whether the trial court erred in the admission or rejection of evidence, or in misdirection to the jury, or in a refusal to charge the jury as requested, cannot be considered in this proceeding, as no such error of law occurring in the course of the trial has been saved by bill of exceptions. Under the statute as it stood in 1886, it was essential for the party objecting to the decision of the court upon a question oflaw arising during the trial, to except at the time the decision was made; and when the decision was not entered on the record, or the grounds of the objection did not sufficiently appear in the entry, the party claiming to be prejudiced by the ruling was required to reduce his exception to writing, and bring the question on the record by bill of exceptions allowed and signed at the trial term, or within thirty days thereafter. Revised Statutes, sections 5297-5302. t For error of law occurring at the trial, the bill of exceptions should be perfected while all the facts -and circumstances are fresh in the recollection of the counsel and the court. Hicks v. Person, 19 Ohio, 426, 437. And although the exception be in fact taken, if not reduced to writing within the time limited by the statute, it will be regarded, in law, as no exception ; nor, will the court have power to dispense with the consequences by a continuance oí the motion for a new trial. As said by Gholson, J., in Kline v. Wynne, 10 Ohio St. 228 : “ If upon a motion for a new trial, for a cause of error of law occurring at the trial, a continuance of that motion to a subsequent term, will enable the court to reduce the exception to writing at such subsequent term, with precisely the same effect as if it had been done at the trial term, it is evident that the rule would have ho positive or-binding obligation, but might, in every case, be dispensed with at the pleasure, or iu the discretion of the court.” See also Dayton v. Hinsey, 32 Ohio St. 258; Estabrook v. Gebhart, Ib. 415; Marietta & Cin. R. R. Co. v. Strader & Co., 29 Ohio St. 448; Musser’s Ex’r v. Chase, Ib. 577; Morgan v. Boyd, 13 Ohio St. 271; Kerr v. State, 36 Ohio St. 614.

But it is contended’ that although the motion for a new trial was continued to and overruled at the term next after the trial term, and although no bill of exceptions for error of law occurring at the trial was perfected within the time prescribed by statute, yet, the defendants below, after the overruling of such motion, having taken a bill of exceptions embodying the charge of the court as well as all the evidence, this court, in considering whether a new trial should have been granted, will look to the charge in connection with the evidence, with a view of determining whether the verdict was contrary to law or the evidence, and whether substantial justice has been done, or a new trial'ought to have been granted.

We are to conclude from the record, that all the evidence given on thé trial, with the charge of the judge, passed under the review of the circuit court, and that court, in affirming the judgment of the court of common pleas, is presumed to have determined that justice substantially had been done between the parties. But the same procedure does not, in our judgment, devolve upon this court. Section 6710, of the Revised Statutes, provides that, the Supreme Court shall not, in any civil cause or proceeding, except when its jurisdiction is original, be required to determine as to the weight of the evidence.” The manifest design of such provision, when considered in connection with the establishment of the circuit court, is to enable this court, as far as practicable, to limit its province to questions of law, without, the necessity of examining all the evidence in a cause. Rut that object will not be fully attained, if, after a failure to save errors of law that arise during the trial, by bill of exceptions taken in due time, parties may evade the provisions of the statute, by seeking substantial justice through the medium of a motion for a new trial, on the ground that the verdict is not sustained by sufficient evidence, or is contrary to law. Whether the verdict is supported by sufficient evidence, it is clear, we need not inquire. And whether the jury have found contrary to the law, must ■depend upon the state of the facts ; but, to ascertain, the facts must involve a determination by this court as .to the weight of the evidence, which the statute provides shall not be required.

In our opinion, the judgment of the oireuit court should be ■affirmed.


author: Williams, J.

text:
    Shields v. Titus.

      Easements — May be established by mutual agreement of adjacent owners — Agreement may be enforced in equity — Injunction a proper remedy.

    1. A way, laid out by an owner over his lands for the benefit of parcels thereof into which he subdivided them for sale, the boundaries of which way, the purchasers of the several parcels definitely establish by mutual agreement, and thereafter improve and use it for the benefit of their lands, is an easement annexed to the lands, and passes by a grant of the land without being mentioned in the conveyance. The grantee takes the rights his grantor had with respect to it, and holds his land subject to the burden it imposed.
    '2. Where proprietors of adjacent lands, by mutual agreement, definitely establish the boundaries of a private way previously laid out along their lines, and appropriate the strip of land embraced therein to be used as a perpetual easement for the benefit of the abutting lands of each, and the common benefit of all, and, in pursuance of ihe agreement, fence to the boundaries so agreed upon, and thereafter improve and use the way thus established, the agreement may be enforced in equity, at the suit of a purchaser from one of such proprietors, against a purchaser with notice from another. Injunction preventing the permanent obstruction of, or interference with such way, is a proper mode of enforcing the agreement.
    (Decided October 29, 1889.)

      Error to the Circuit Court of Lorain County.
    The plaintiff in error commenced his action against the defendant in error, and Adam Seymour, in the Court of Common Pleas of Lorain county, by-filing therein the following petition :
    “ Plaintiff says that Alexis Miller, now deceased, was the owner of a large tract of land situated in secs. No. 5 and 6 in Avon Township, Lorain County, Ohio. That sec. No. 6 is bounded on the north by Lake Erie, and that along near the north side of said sec. No. 6 is, and has, been a public highway for over 40 years, known as the Lake Shore Road. During the life time of said Miller, he sold several pieces of land in this said tract, which, by a series of deeds, are now held, one piece by one Ann Robinson, another by one Nick Pitts, another by this plaintiff, and two other pieces by the defendant, Daniel Titus. That when said pieces of land were first severally sold by said Miller, there was and still is no public highway by which ingress and egress can be had to or Rom said land. That for the purpose of rendering said lands accessible by teams and vehicles, said Miller opened and constructed a lane or way to each piece of land so sold, to-wit: a lane or way commencing on said Lake Shore Road and running south to the north line of sec. No. 5. That said lane or right-of-way was opened and laid out for the benefit of said several grantees, their heirs, administrators and assigns, and all persons wishing to travel the same to reach said land. That said Miller also, at the time he established said way, was the owner of about 10 acres of land situated in said section 5, and at the south end of said lane, being one of the pieces now owned by said Daniel Titus, and that said lane furnished the only means of getting to and from said ten acres.
    “ Plaintiff says said right-of-way or lane has been used, traveled over and occupied for the purpose of reaching said several pieces of land for the past twenty-five years, with the assent, acquiescence and knowledge and agreement of said Miller and his several grantees and their assigns to whom he has conveyed the premises over which said way runs. That prior to the year 1875, one Joseph Fretter, by purchase, became the owner in fee of said ten acres of land in sec. No. 5. and of the land now owned by said Daniel Titus in sec. Noth That in that year 1875,. the said Joseph Fretter, Ann Robinson, Andrew Seifert and this plaintiff, being at that time the owners of all the land over which said lane ran, for the purpose of settling definitely the width and exact location, of said way mutually agreed between and among each other that said way should be thirty feet wide its entire length.. That thereupon, by virtue of said agreement, each of said párties built' fences along the sides of said way, to-wit: said Fretter built a fence 30 feet west of his said east line, and Robinson built a fence 30 feet west of the east line of about ten acres of land, and said plaintiff and said Seifert each built a fence fifteen feet east of the center of said lane across their respective farms; and said Robinson also built fences 15 feet west of said center of said lane across the remaining part of her said farm, thus making a lane 30 feet wide extending from said Lake Shore Road south to the south line of sec. 6. That large ditches were constructed, bridges built-, and said road was otherwise worked and improved.
    “ That afterward said Joseph Fretter sold and by deed conveyed all his interest in any land in said Sections No’s 6 and 5 to the defendant, Daniel Titus. Plaintiff says the land so-sold to defendant, Titus, in section No. 6, is bounded as-follows: On the north by the Lake Shore road,on the east by land owned by Thomas Shields, formerly owned by A." II-Bullock, on the south by land owned by Ann Robinson, and on the west by land owned by P. J. Miller. That said 30 foot lane runs over and across the east .side of said land last above described. Said Robinson’s land is just south of above desci’ibed land, and the land so owned by said Seifert and said plaintiff in 1875, is adjoining said Robinson’s said land on the east. Plaintiff says in the year 1875, he sold and conveyed all his right in his said premises to said Nick Pitts, who is still in possession and the owner thereof. That in the year 1878-he purchased the said farm of said Seifert, and now is in possesión thereof and the owner in fee. That said lane now furnishes, and has for 25 years, the only way to get to and from the land now owned by the said Robinson, Pitts and plaintiff. That defendant, Titus, when he purchased his said land of said Eretter, well knew all and singular the facts above set forth, and bought said premises subject to the perpetual right of plaintiff and the several owners of said several tracts of land, their heirs, administrators, executors and assigns, to use, enjoy, occupy, and travel said lane its entire length with wagons, vehicles and whatever conveyances, and when necessary to fully enjoy their said land.
    “That defendant, Adam Seymour, claims some interest in the said farm of said Titus, by lease or otherwise. Plaintiff says that notwithstanding the facts above stated, said defendants, Titus and Seymour, now claim that said plaintiff has no right, title or interest in and to the possession or use of said lane or right of way. That they each now refuse to allow him to enter upon the part of said lane lying on the east side of the farm of said Titus, and threaten to forcibly eject him and his teams therefrom, and threaten to fence up the same, and threaten to and have already sued him for trespass for entering upon said lands with his teams, and threaten wholly to deprive him of the use of the same.
    “ Wherefore plaintiff asks that on the final hearing hereof he may be quieted in his right to the enjoyment of said right-of-way, as above set forth, and be decreed to have the right to use and enjoy the same together with his heirs, administrators, executors and assigns of said premises so owned by him, and that said defendants, their heirs, administrators and assigns may be forever enjoined from interfering with the use and enjoyment thereof for the purposes as above set forth, and for such other rights and equities that the court can give and law requires.”
    A general demurrer to the petition was overruled, and thereupon the following answer was filed :
    “ The defendant, Daniel Titus, for answer to the petition of said plaintiff says, he admits that one Alexis Miller, deceased, in his lifetime owned a tract of land in sections five and six in Avon township in said county, out of which he sold in his lifetime in section six two small pieces, one to Aaron H, Bullock and one to Evan Richards, and conveyed the same to them respectively by deed; that the one, six acres, sold by said Miller to said Richards is now owned and occupied by one Catharine Pitts, and the one sold to said Bullock is now owned and occupied by the plaintiff; that across the northerly part of said section six there is and for many years last past has been a public highway, known and called “the Lake Shore Road;” that the said Miller in the sale of said six acres to said Richards did agree and covenant with said Richards that each should throw out fifteen feet of land respectively across said six acres for a private way, so that said Miller could reaich his lands in said section five, and that the said Richards should have the right and privilege, together with his heirs and assigns, in consideration of said purchase and the throwing out of said fifteen feet from the west side of said six acres of traveling in a northerly direction, over and across the premises, to and from said Lake Shore Road at all times for the free use and enjoyment of said six acres; that one Ann Robinson now holds by a land contract, as defendant is informed and believes and avers the fact to be, about sixty acres of land, foi’merly owned in said .sections five and six by said Miller, and has no way of ingress thereto and egress therefrom except of necessity over this private way to said Lake Shore Road.
    “ Defendant says that he owns a small piece of said land so •owned by said Miller in section five, and all of section six so •owned by said Miller, north of land as aforesaid by Ann Robinson, and west of land of the plaintiff, and lying between the lands occupied by said Robinson and the Lake Shore Road aforesaid; that the laud of the said plaintiff lies next east of his, and fronts on said Lake Shore Road, which said road gives said plaintiff ample, free and easy access to his said premises and every part thereof.
    “Defendant further answering, says that at the time said Miller sold said premises to said Bullock, no grant was conveyed to said Bullock to pass and re-pass over the premises now owned by this defendant, by deed or otherwise, and none existed of necessity, and at the time said Bullock conveyed the same to said plaintiff, no right to pass or re-pass over and across the premises of this defendant through this private way aforesaid was conveyed to him, either by grant, implication or of necessity. Defendant avers he purchased said premises of one Joseph Fretter free and clear of all incumbrances, except the private right-of-way of said Catharine Pitts by grant, and of the said Ann Bobinson of necessity; and defendant avers his said premises are free and clear of any incumbrance, right-of-way or servitude to the premises owned and occupied by said plaintiff.
    “ Defendant admits he has denied and still denies said plaintiff’s right to travel over said private right-of-way in the use and enjoyment of his said premises; that he has brought suit against him in trespass for so doing and recovered a judgment therefor against said plaintiff which the said plaintiff has paid together with the costs of said suit, and has forbiden him to use and travel over said private way in connection with his said premises.
    “.Each and every other allegation and averment in plaintiff’s petition not hereinbefore admitted to be true, defendant denies.”

      “Second defense. — Defendant further answering, says said plaintiff is known by several given names, to-wit: Vint Shields, Vincen Shields, Vincent Shields and Thomas Shields ; that he and his friends use these names interchangeably when speaking to and of himself; that they all refer to and designate the same person, to-wit: said plaintiff, and he responds to and recognizes himself as the person meant whenever any of these given names are applied to him; that on or about the — day of July, 1884, the said defendants brought suit against said plaintiff, under the name of Vincent Shields, before A. W. Sherbondy, a justice of the peace in and for Avon township in said county, the said justice having full power and authority to hear said cause for trespass in traveling over said private way with his teams, wagons and on foot in the use of his said premises, at which trial the said' plaintiff appeared aud answered in said suit, and set up the same facts in defense of said suit he now sets up in this action; that after a full and fair trial before said justice of the peace and a jury, and after arguments of counsel, said defendants recovered a verdict and judgment on the merits of said action against said plaintiff in this petition, which judgment so obtained the said plaintiff paid, together with costs. Wherefore said defendants say said cause is res judicata and no right of action exists against them and in favor of said plaintiff. The said defendant therefore asks to be dismissed with his costs.”
    The plaintiff replied as follows :
    “Now comes plaintiff and for reply to the answer filed herein says he admits that said Miller sold said 6 acre piece to said Richards with the agreement in said deed contained as alleged in the petition, and that said property is now owned by one C. Pitts He further admits that he did purchase of said Bullock the lands as alleged in the defendant’s answer, with all the appurtenances thereunto belonging. He avers that long before said purchase was made said Miller conveyed to said Bullock the perpetual right-of-way over the lane or road in controversy for the benefit of said premises, and the perpetual right to drain his surface water into a ditch or drain running along the side of said lane next to the land of said Bullock. He admits that said defendant purchased from one Fretter who held his title from said Miller, and he avers that said defendant purchased said property with full knowledge of said encumbrance upon it. And further replying denies each and every allegation therein contained except those explained or admitted above, and asks that the prayer of his petition may be sustained.”
    Upon the trial of the cause, at the October term 1885, the court found the issues for the plaintiff, and rendered judgment in his favor as prayed for.
    A motion for a new trial was overruled, but no bill of exceptions was taken, nor was there any finding of facts by the court.
    The defendant Titus prosecuted error to the circuit court, where the judgment was reversed, solely on the ground, as ap.•pears from the record, that “the court of common pleas erred in overruling the demurrer to the petition.”
    A reversal of the judgment of the circuit court is now sought here.

      Metcalf, Webber & Johnson, for plaintiff in error.
    The petitition shows that defendant’s, grantor and plaintiff, .agreed upon this lane, fenced it, bridged it and worked it; that defendant knew all this when he bought the land over which it runs; that he bought it subject to the plaintiff’s right to ■travel it. The parties owning the land over which this lane runs had a right to agree upon the lane. For aught that is ■disclosed the agreement was in writing. The presumption is it was, if a contract or agreement of this kind must be made in •writing. Defendant when he bought his farm had a right to buy it subject to this right of way, and for aught that appears this right of way was reserved in his deed. Defendant by his ■demurrer admitted all the facts stated in the petition to be true. Hance v. Hare, 25 Ohio St. 349; 6 Allen, 341; 2 Wait’s Actions and Defenses, 682, and cases there cited; Nathan v. Lewis, 1 Hun, 239, 245; 1 Walker & Bate’s Digest, 346, 347; 6 Am. Law. Reg., 718; 2 D. 261, 267.
    If a material fact is not alleged in a petition, if it appears by the finding of the court that it was supplied by the evidence, so that the defendant could not have been injured by the absence of the averment, the judgment will not be reversed. Davis v. Hines, 6 Ohio St. 47; 30 Ohio St. 308 ; 33 Ohio St. 555, 562.
    The answer and reply raise an issue. that could support the finding of the court of common pleas.

      Johnson & Leonard, for defendant in error.
    I. The plaintiff brought his action upon the wrong side of the court. His prayer is for quieting of title, injunction and equitable relief. His action should have been brought at law. It is only in special cases, where special grounds for equity interference are set forth, that equity will interfere for encroachment upon an easement. 2 Waite A. and D. 749 and 750 ; 3 Waite A. and D. 700-708 ; Wash. Ease, 575 and 576 ; 2 Story’s Equity, § 925 and § 926 ; Smith v. Wiggins, 48 N. H. 109; Bank v. Debolt, 1 Ohio St. 591; McCoy v. Chillicothe, 3 Ohio, 379; Culver v. Rodgers, 33 Ohio St. 537.
    II. The petition shows no right to the statutory remedy to quiet title. Actions to quiet title are of two kinds, the statutory action, Rev. Stats., sec. 5779, and the chancery suit which still exists in Ohio. Marsh v. Reed, 10 Ohio, 347, 350; 2 Bates Pleading, 660. The statutory action is founded on possession. An easement is not capable of possession. Washburn on Easements, 2; Hilliard on Real Property, 61; Munroe v. Ward, 4 Allen, 150; Redfield v. Railway Co., 25 Barb. 59; Clark v. Hubbard, 8 Ohio, 382; Tyler on Ejectment, 41; Wicklowe v. Lane, 37 Barb. 246; 3 Blk. Com. 206; Jackson v. May, 16 John, 184 ; Smith v. Wiggin, 48 N. H. 109; Jackson v. Hathaway, 15 John, 454; Miller v. Miller, 4 Pick. 244; Clark v. Hubbard, 8 Ohio, 382; Thomas v. White, 2 Ohio St. 540; Harvey v. Jones, 1 Disney, 68; Hoskins v. Alcott, 13 Ohio St. 216; Austin v. Goodrich, 49 N. Y. 266 ; Brown v. Harman, 21 Barb. 508; Bates Pleading, 665, 906.
    III. Under the chancery action to quiet title, it is none the less necessary that plaintiff should be in possession. Bailey v. Briggs, 56. N. Y. 407 ; Scott v. Kramer, 31 Ohio St. 295. Also cases cited under proposition II.
    IV. To entitle to the chancery relief to' quiet title it must appear that the plaintiff has established his title at law. Marsh v. Reed, 10 Ohio, 349; Wash Easements, 575-6 ; Story’s Equity, sec. 925, sec. 926; Collins v. Collins, 19 Ohio St. 470; see also 3 Waite A. and D. 701, and cases there cited. Also Id. 703; 2 Bates Pleadings, 663; McCord v. Iker, 12 Ohio, 387, 388.
    V. On the injunction side of this petition, it. is well settled that courts of equity will not interfere by injunction where the complaining party has an adequate and complete remedy at law. Southard v. Stephens, 27 Ohio St. 651; Wilson v. Mineral Point, 39 Wis. 163; Gray v. Tyler, 40 Wis. 579; Bank v. Debolt, 1 Ohio St. 591; McCoy v. Chillicothe, 3 Ohio, 379 ; Bates Pleading, 663 ; Smith v. Wiggin, 48 N. EL 109 2 Waite A. and D. 747, and cases there cited.
    VI. Equity will not interfere by injunction in cases like this unless it is alleged that otherwise great and irreparable injury will be done, and the facts must be stated which will make out such a case. Van Wert v. Webster, 31 Ohio St. 420; see also 1st Bates Pleading, 483, and cases there cited ; Wash. Easements, 575, 576 ; Wilson v. Minn. Point, 39 Wis. 160; 3 Waite A. and D., and cases there cited.
    The cases in which equity will interfere by injunction to prevent encroachments upon an easement are collated 2 Waite A. and D, 749, 750, and generally in cases of trespass and nuisance, 3 Waite A. and D. 700-708. The petition does not come within the rule.
    VII. The plaintiff does not show in his petition any right by easement or otherwise, in or to the land in controversy. He neither states it in terms or states facts which would amount to it in law. He nowhere states the fact. An easement must either be personal — in gross — or else attached to and existing for the benefit of some specific piece of realty. A way in gross is not transferable. Wash. Ease, page 8-161.
    Except in gross, easements exist only for the benefit of specific real property. A way to reach one piece of land is one easement, to reach another piece, another easement. A way for a different purpose also makes still a different easement. Wash, on Ease. 8, 9, 91, 92, 93, 115, 128, 129, 160, 161, 162, 163, 196, 564, 565 and 566.
   Williams, J.

The issues of fact were found by the court of common pleas in favor of the plaintiff. No bill of exceptions was taken, nor was there any finding of facts by that court. The only question therefore before the circuit court, was whether the pleadings were sufficient to sustain the judgment ; and that is the only question here. The contention of the defendant is, that the petition does not state any right in the plaintiff to the way in controversy, and, if it does, then that no violation of the right is shown, of which equity will take cognizance.

In respect to the right of the plaintiff to the way, it appears that the person from whom the parties derive title to their lands, owned in connection therewith, other lands, which together constituted one tract. When he subdivided the tract, and sold the parcels now belonging to the plaintiff, and the defendant, and other parcels of the subdivision, he opened and constructed the way in question, “.for the purpose of affording means of access to the several tracts sold, for the benefit of the grantees', their heirs and assigns, and of all persons wishing to travel the same to reach the landand also, to enable him to get to and from those portions of the land retained by him. Ever since, and during a period of twenty-five years next preceding the commencement of the action, the way so laid out and constructed, has been “ used, traveled over, and occupied for the purpose of reaching the several pieces of land, with the assent, acquiescence, and agreement of the grantor, and his several grantees and their assigns,” to whom the premises, over which the way ran, were conveyed. The respective owner’s of the lands on which the way was located, “ for the purpose of settling definitely its width and exact location, mutually agreed between and among themselves that the way should be thirty feet wide, its entire length ;” and thereupon, by virtue of the agreement, they built their fences so as to leave the way open as agreed upon, and thereafter constructed ditches and bridges, and otherwise improved it as a roadway. While the way was so opened, improved, and in actual use, the plaintiff, by purchase from one of the parties to the agreement alluded to, became the owner of one of the tracts of land embraced in the agreement, and the defendant purchased another of the parcels over which the way was so located, opened and used, from a proprietor who was also party to the agreement. It further appears, that the defendant purchased with knowledge of the existence of the way; and of the agreement made by his vendor with the other proprietors, and, that he bought his parcel “ subject to the perpetual right of the plaintiff and the several owners of the other tracts, their heirs, and assigns, to use, enjoy, occupy and travel over the way, its entire length, with wagons, vehicles and other conveyances.”

There can be but little doubt that the way, as originally established by the owner of the entire tract for the benefit of the parcels conveyed by him to purchasers, became an easement appurtenant to the lands granted, and not merely personal to the grantees. It was established for the beneficial use and enjoyment of the premises conveyed, and, was a burden imposed upon each parcel for the more complete and convenient use of the others. Each parcel, for the purposes of the way ■over it, became servient to the others, and they, in turn, were subject to a like servitude for its benefit.

The exact location a nil width of the way, so made appurtenant to their lands, were definitely settled by the mutual agreement of the owners, who placed their fences to the lines agreed upon, and thereafter improved and used it without objection. Such was the condition of the way when the plaintiff and defendant purchased their lands, and such, it continued to be, down to the time of its threatened interruption by the defendant. It was then, not simply a way of necessity, limited in duration by the necessity which originally gave rise to it, but became permanently appurtenant to the principal estates; and, under the well settled rule, each purchaser took his land with all the rights his grantor had with respect to it, and burdened with the servitudes he imposed upon it. As was said by Mr. Justice Story in Hazzard v. Robinson, 3 Mason, 279, “Whatever is actually enjoyed with the thing granted, as a beneficial privilege at the time of the grant, passes as parcel of it.” A way is'appendant or •appurtenant to other lands, when it is granted for the convenience of their occupation without respect to the ownership or number of occupants. In such case, the right-of-way passes with the dominant estate as au incident thereto. Boatman v. Lasley, 23 Ohio St. 614. Where an easement is secured to -a dominant estate, and is designed to benefit the same in whosoever hands it may be, it will, as a general proposition, inure to the benefit of the owner of any part of thp same into which it may be divided, provided the burden upon the ■servient estate intended to be created is not thereby enhanced.” Washburn on Easements, 99. True, the terms of the grant by which the plaintiff acquired his title, are not set out, nor is it averred that the right-of-way was granted in express language, or by the use of the word “ appurtenances”. It is averred, however, that he purchased the land, and is in possession thereof and the owner in fee,” which, we think, must be construed as being equivalent to an allegation of the grant of the fee simple estate in the land to him. And it is the established rule in this state, that the appurtenances to property pass with it, upon its alienation, without the use of the term privilege or appurtenance in the conveyance. Morgan v. Mason, 20 Ohio St. 401. In the case cited above-it was held that a right-of-way, or other easement appurtenant to land,' passed by a grant of the land, without any mention being made of the easement in the conveyance, and though neither the term appurtenance, or its equivalent be employed.

Neither is the defendant in any better position than his grantor ; for, a grant of the servient estate, carries with it the burdens imposed upon it by the grantor, and the grantee takes it with all those burdens which appear, at the time of" the sale, to belong to it. Washburn on Easements, 90. It not only appears, that at the time the defendant bought his land, the easement was apparent and in actual use, so that he might properly be charged with notice of its existence, but it is plainly alleged, that he bought with knowledge of it, and of all the facts relating to its establishment, and subject to it. These parties therefore, stand in the shoes of their respective vendors, and hold their lands with the qualities and burdens-impressed upon them at the time of their purchase.

Granting this to be so, it is nevertheless contended by the plaintiff in error, that the agreement concerning the establishment of the way, is invalid, because it was verbal, and without consideration, and therefore ineffectual to create a servitude upon his land. Without stopping to consider whether, if the contract were^verbal only, it would on that account be inoperative, notwithstanding its long recognition by the parties to it, and. their performance of it, it is sufficient to say. that this ground of objection to the contract no where appears in the record. It is true, the petition does not allege that the contract was in writing. It does however, allege that an agreement was made, which, as the term imports, must be construed to mean a valid agreement, one possessing all the requisites of a binding contract, unless upon the whole pleading, a different interpretation is required; which is not the case here. Besides, the defendant in his answer, does not make the defense that the contract was verbal merely, but denies that there was a contract. A written agreement, undoubtedly would have been competent evidence in proof of this issue; and, in support ■of the judgment, it will be presumed, in the absence of anything in the record to the contrary, that the finding of the court upon the issue, was sustained by competent, and suffi•cient evidence.

The definite establishment of the boundaries of the way, and the appropriation by each proprietor, of his lands embraced within them, for the mutual benefit of the'lands of all, constituted a sufficient consideration to support the agreement. Each owner, secured a right or interest in the nature of a servitude in the lands of the others included in the way, and the benefit ■accruing to his estate from the use of the same.

The other question in the case, relates to the remedy. It is said, that equity will not interfere to restrain trespasses; that for such wrongs, the remedy is at law, and damages afford adequate redress.

The general rule, that equity will not exercise its jurisdiction where there is a plain and adequate remedy at law, is not denied; but where, as in this case, the threatened obstruction of an easement, would, if carried into execution, permanently destroy it, and defeat the plaintiff’s right, the application of the rule may b"e doubted. After the mischief is •done, the remedy at law may be neither plain or adequate. The damages are not always immediately appreciable, or capable of measurement by any certain rule. But it is not deemed necessary to place the decision upon that ground. We ■are of opinion^ that the plaintiff may maintain his action in equity, to enforce the contract of his vendor, by restraining the 'destruction of the easement secured by it. Courts of equity, will recognize and enforce agreements made by adjoining proprietors, concerning the occupation, and mode of use of their lands, not only, as between the parties to the contract, but as between their vendees with notice. And to warrant such equitable relief, it is not material that the agreement be binding as a covenant real running with the land, or that any privity of estate subsist between the parties. Parker v. Nightingale, 6 Allen 341; Western v. McDermott, L. R. 2 Ch. App. 72 ; Tulk v. Moxhay, 2 Phillips Chan. R. 774; Talmadge v. Bank, 26 N. Y. 105; Seegar v. Harrison, 25 Ohio St. 14.

In Tulk v. Moxhay, a covenant by the grantee of a piece of land, to use it as a private square, was enforced against a purchaser from the grantee with notice. The Lord Chancellor said,'the question was not, “whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract' entered into by his vendor, and with notice of which he purchased.” And he adds, “that the question does not depend upon whether the covenant runs with the land, is evident from this, that if there was a mere agreement and no covenant, this court would enforce it against a party purchasing with notice of it.”

In Western v. McDermott, supra: “ Each of the original owners of houses in a row entered into covenants with the original owner of all the land on which they stood as to what should be done in the garden attached to each house.” It was held “ that whether the covenants did or did not run with the land, a purchaser of one of the houses, with notice of the covenants, would be bound by them in equity;” and that the owner of a house who was injuriously affected by acts which were contrary to the covenants, might proceed against the party who commits them, to restrain the 'breach of the covenants.

In Parker v. Nightingale, supra, Bigelow, C. J., speaking of restrictictions and limitations which may be put upon property by means of stipulations, fastening servitudes or easements ■upon it, and the jurisdiction of equity to enforce such agreements, says that such restrictions and limitations “ derive their validity from the right which every owner of the fee has to dispose of his estate, either absolutely or by a qualified grant, or to regulate the manner in which it shall be used and occupied. So long as he retains the title in himself, his covenants and agreements respecting the use and enjoyment of his estate will be binding on him personally, and can be specifically enforced in equity. When he disposes of it by grant or otherwise, those who take under him can not equitably refuse to fulfill stipulations concerning the premises of which they had notice. It is upon this ground that courts of equity will afford relief to parties aggrieved by the neglect or omission to comply with agreements respecting real estate after it has passed by mesne conveyances out of the hands of those who were parties to the-original contract. A purchaser of land with notice of a right or interest in it existing only by agreement with his vendor, is bound to do that which his grantor had agreed to perform,, because it would be unconscientious and inequitable for him to violate or disregard the valid agreements of the vendor in regard to the estate, of which he had notice when he became the purchaser. In such cases it is true that the aggrieved party can often have no remedy at law. There may be neither privity of estate nor privity of contract between himself and those who attempt to appropriate property in contravention of the use or mode of enjoyment impressed upon it by the agreement of their grantor, and with notice of which they took the estate from him. But it is none the less contrary to equity that those to whom the estate comes, with notice of the rights of another respecting it, should' wilfully disregard them, and in the absence of any remedy at law the stronger is the necessity of affording in such cases equitable relief if it can be given consistently with public policy, and without violating any absolute rule of law.”

It was held by this court in Seegar v. Harrison, 25 Ohio St. 14, that “ Where the proprietors of adjacent lands agreed that each would appropriate from his land a strip to be used in common for a public street, and conveyances and improvements have been made on the faith that the street would be opened, the agreement may be enforced in equity, against a purchaser with notice, whether the 'public authorities accept the street as dedicated to public use or not.” White, J., in «peaking of the remedy says, that<e in the absence of fraud or mistake, the agreement ought, upon well established principles of equity, to be enforced, whether the public authorities accept the street as dedicated to public use or not.”

Upon the same principle, where proprietors of adjacent lands, by mutual agreement, definitely establish the boundaries of a private way previously laid out along their lines, and .appropriate the strip of land embraced therein to be used as a perpetual easement for the benefit of the abutting lands of ■each, and the common benefit of all, and in pursuance of the agreement, fence to the boundaries so agreed upon, and thereafter improve and use the way thus established, the agreement may be enforced in equity, at the suit of a purchaser from one of such proprietors, against a purchaser with notice from another. Injunction preventing the permanent obstruction of, ■or interference with such way, is a proper mode of enforcing the agreement.

The judgment of the circuit cou/rt is reversed, and that of the common pleas affirmed.


author: Spear, J.

text:
    Nail & Iron Company v. Furnace Company.

      Public road — Abandonment by non-user — When complete.

    Under a claim of abandonment of a road in a municipal corporation, proof that no work had been done on the road by the public authorities for fifteen years; that the road was at times in bad condition and impassable; that it passed over a steep hill; was difficult of use; that a new road had been established in the vicinity intended to take its place; that for eleven years before suit was brought travel had been substantially diverted to the new road, and that portions of the old road had been fenced in, are not sufficient to show abandonment by the public.
    If non-user of such road may work an abandonment of it, the non-user must be shown to have extended over a period of twenty-one years.
    (Decided October 29, 1889.)
    Error to the Circuit Court of Lawrence County.

      The action below was commenced by the defendant in error against the plaintiff in error, in the year 1884, to recover for damages to the lands of the Furnace company lying within the City of Ironton, by reason of the construction and operation of a tram? railway on a public road within said city, upon which the lands abutted. One of the defenses interposed was that the alleged road was not such at the time of the building •of the railway, but had been abandoned.
    The railway was built in 1883. Evidence was given tending to show that work had been done on the public road about fifteen years prior to that date, but that, by reason of not being kept in repair, its use by the public practically ceased some three years after, though portions of it continued to be used; that the road passed over a steep hill, and was, in a sense, impracticable as a highway, and a new road had been established in the vicinity, intended to take its place; that travel; since the year 1872, had been almost wholly diverted to the new road, and that, in front of the Furnace company’s land, and in other places, the old road had been fenced up for some time. But no statutory vacation had taken place, although a petition was filed for that purpose with the county commissioners in 1874, to which a remonstrance was interposed, and the proceeding abandoned.
    At the trial the court charged the jury, among other propositions, the following:

      “ Evidence has been introduced, by both plaintiff and defendant, as to this question of abandonment; as to whether this road has been abandoned or not, and I call your attention to those principles which will guide you in determining from the evidence whether the road has been abandoned or not. Whether the road has been abandoued is a question of intention, and this intention is to be ascertained from the acts and conduct of the parties, and the circumstances of the case. If the public acquired the right to use this road as a public highway, and did so use it, then the right existed, and before it can be said to be abandoned, the facts and circumstances must show the fact of abandonment, and the intention to abandon it by the public. Look into the evidence to determine this question.”
    A verdict and judgment against the Furnace company having been rendered, error was prosecuted to the "circuit court, where the judgment of the common pleas was reversed. To obtain a reversal of this latter judgment, this proceeding in error is instituted.

      W. A. Hutchins and W. H..Enochs, for plaintiff in error.

      We claim a public highway can be abandoned by the acts and conduct of the public. ’ Take this case : The old road ran over the hill; a tunnel is made for the new and different road ; the old road over the hill is fenced up. Is it necessary to go into court to have the old road over the hill, and almost over the tunnel, to be declared vacated, or is it not abandoned? It is said the law never requires a vain thing to be done, and this certainly would be the height of vanity. Suppose another case : A road passes down and up banks over a stream ; a bridge is built across the stream ; is not the old road-down the bank, across the stream and up the bank on the other side abandoned as soon as the public adopts the bridge, and time has nothing to do with it ? Is it not, in the language of the court in the charge to the jury, a question of intention ?
    In this case, a city is laid out over this old road with streets, lanes and alleys, and yet council claim there is but one way of abandonment," and that is by vacation as provided by statute.
    The charge of the court below is sustained by the case of Rittlemyer v. Flick, 2 Clev. Rep. 115; Fox v. Hart, 11 Ohio, 414-416.

      A. T. Holcomb and Ralph Leete, for defendant in error.
    Defendant in error maintains that nothing less than an exclusive, adverse holding of the land and a total abandonment by the public, of the highway, for 21 years can extinguish the right of the public to the use of the road, unless vacated under the statutory provisions.

      This doctrine is supported by the following authorities: Angel on Highways, page —; Wood on Nuisance, page 278; 27 Am. Report, page 295; Washburn on Easements, pages 669-670; 8 Ohio, 298; 19 Ohio, 367; 11 Ohio, 414; 13 Ohio St., 42 ; 5 Ohio St., 602.
    The statute of Ohio requiring seven years actual abandonment of an unopened road, to vacate it, clearly implies that a road opened and used, must be vacated by statutory proceedings or by non-use for 21 years. -
    The charge of the court of common pleas, ignores time, as an element, and instructs the jury to guess at the intention of the public. The intention of the public can never be proven. Rev. Stats., secs. 4661 and 4683.
   Spear, J.

The question in the case is: Did the acts of the public in omitting to do work on the road for fifteen years, and in establishing another road as a substitute for it, and use of the new by the great proportion of the public for eleven years, taken in connection with the acts of adjoining owners in fencing portions of the old road, work an abandonment of it ?

We think this question must be answered in the negative. However, the street in question may have been established, the right of the public can not have been less than if acquired by prescription. The easement thus acquired could be defeated only by a vacation in conformity with the statute or by nonuser by the public for such length of time as would amount to an abandonment of it. The former is not claimed. Could the right, when.so acquired, be lost by non-user in any less time than is necessary to acquire such right by prescription ?

A dedication to public use may be presumed when acts and declarations of the owner indicate a purpose to dedicate, though the use has been for a period less than twenty-one years; but in order to presume a grant or dedication from use by the public, and acquiescence alone by the owner, such use and acquiescence must have continued for the period necessary to bar an action to recover possession of the land. The acts and declarations relied upon as showing intention to dedicate must be clear and unequivocal, but, when shown, they are effective. Intent of the public is not so easily shown. A practical difficulty is met at the outset, viz., that a majority, even a large one, can not, in such cases, speak for, or give away, the rights of even a small minority.

In this state, adverse possession by a claimant to the whole or a portion of a street within a municipal corporation, in order to bar the corporation from its rights of control and enjoyment, must be continued twenty-one years. And it seems reasonable to hold that non-user by the public, in order to work abandonment of such a street, must be shown to have been as long continued as its use originally was necessary to raise a prescriptive right, or as long as an adverse claimant must show possession in order to maintain title by force of the statute of limitations.

That the road in question had been neglected and allowed to become in bad condition, and proved impracticable of use in part, and had been substantially supplanted by another, we think can have no bearing on the case. It does not follow that right of use is lost because more convenient facilities are furnished. Nor did the fencing in of portions of the street suspend or defeat the public right. Such exclusive occupation, for the time stated, could not ripen into a right, or be taken as indicating a purpose on the part of the public.

It appears to be well settled by the authorities that in order to work abandonment by simple non-user of an easement, all acts of enjoyment must have totally ceased for the same length of time necessary to create th'e original presumption, and we hold that where non-user by the public, of a. street within a city is relied upon as proving an abandonment of it, such non-user must be shown to have continued for a period of twenty-one years.

The rule here- indicated, is one easy of application, is consistent with accepted law on the general subject, is in harmony with the spirit of our statute law as to streets, and will, we think, be found to be sustained by Washburn on Easements, 550 to 559 ; State v. Culver, 27 Am. Rep. 295; Ward v. Ward, 7 Exch. 838 ; Corning v. Gould, 16 Wend. 531; 3 Kent’s Com. 451.

Abundant provision is made by statute, (see section 4661, 4683, 2652 and 2655), where á road or street becomes useless, for the vacation of a county road by the commissioners, a township road by the trustees, and a street in a city or village by the council thereof, or by the court of common pleas. And no good reason exists why the statutory remedy may not be resorted to in all cases where there has not been a clear non-user of the street by the public for the period of twenty-one years.

Judgment affirmed.


author: Bradbury, J.

text:
    Village of Shelby v. Clagett.

      Non-professional witnesses — When may give opinion — Defective sidewalks — When municipal corpoi'ations liable for injuries caused thereby — What is sufficient notice of defect — Notice to property owner, to repair — Effect of.

      1. A non-professional witness who has had opportunities to observe a sick or injured, person, may give in evidence his opinion of the condition of such person, in respect of his being weak and helpless or not, and of the degree of suffering which he endured, provided such opinion is founded on his own observation of the person to whom his evidence relates, and is limited to the time that tne person was under the observation of the witness.
    2. In an action against a municipal corporation, to charge it with liability to one injured by a defective sidewalk, the cost of repairing which ( could have been charged upon the adjoining property, it is no defense to show that the corporate funds had been exhausted in other necessary repairs, and to reject evidence tending to establish that fact is not error.
    3. The extent to which immaterial matters may be enquired into upon cross-examination, rests in the sound discretion of the court in which the witness is being examined.
    4. (a) In an action against a municipal corporation, to charge it with liability to one injured by a defective sidewalk, it cannot, as matter óf law, be charged with notice of the defect that caused the injury, from the fact, merely, that it knew of the existence of a general defect in the same walk. To constitute knowledge of the general defect, notice of the particular one, they must at least be of the same general, character, or the latter a usual concomitant of the former.

      (6) A notice given to a property owner by a municipal corporation to repair a sidewalk is not, as matter of law, notice of any other defect than the one stated in the notice, or of one so related to it, that the existence of the latter, according to the usual course of affairs, may be reasonably-inferred from the former.
    (Decided October 29, 1889.)
    Error to the Circuit Court of Richland County.
    This action was brought by defendant in error in the Rich-land Court of Common Pleas to recover damages that she avers were sustained by her from a fall caused by an unsafe and dangerous sidewalk,-within the village of Shelby, plaintiff in error.
    She averred in her petition that the sidewalk in question had been improperly constructed, and by reason of the negligence of the village, had become unsafe and dangerous, because the boards composing it, which were laid crosswise, had become loose, of' all w'hich the village had notice, and by reason whereof she was violently thrown down and injured.
    The village, by answer, put in issue, among other things, the averments of negligence and notice; and averred that the defect which caused the injury was latent and unknown to it, although it had used due diligence in the premises; which averments of the answer were put in issue by the reply.
    The plaintiff below recovered a judgment in the court of common pleas, which upon error to the circuit court was affirmed, and thereupon this proceeding was brought by the village to reverse both judgments.
    The other facts necessary to understand the questions decided will be found in the opinion.

      T. TI. Wiggins, attorney for plaintiff in error.

      Sidles & Sidles, attorneys for defendant in error.
   Bradbury, J.

It appears from the bill of exceptions taken in the court of common pleas,’that Mrs.°Clagett, accompanied by another lady, was passing along the sidewalk in question, when her companion stepped on a loose board which tipped up, tripped and threw Mrs. Clagett. The walk was made by placing four 3x4 oak stringers on the ground, lengthways with the walk, and nailing narrow boards across them. The two center stringers had settled more than the two outside ones, causing the walk to become slightly dished, and at each of two places a board had been nailed over the walk to cover holes that had formed in it. The walk had been examined by the street commissioner a short time before the accident, and a report made by him to the council that it needed repairs, and the council had notified the adjacent owner to repair it by June 6, eleven days before the accident occurred, the notice stating that if the owner did not repair by that day the village would make the repairs at its expense, but neither the report of the street commissioner to the council, nor the notice given by it to repair, state the kind of repairs needed, and none were made up to the time of the accident.

The plaintiff below strenuously contended that the sidewalk was in bad condition generally, and needed general repairs, and gave evidence tending to support that view; on the other hand, the defendant below insisted that the walk was in good condition generally; that its street commissioner had shortly before the accident examined it, and discovered no loose boards or other defect that tended to make it unsafe, and that there was nothing in the appearance of the walk up to the time oi the accident to indicate that any of the boards had become loose, or that the walk was at all dangerous, and that the only defects in the walk were that it had become slightly dished, owing to the settling of the two middle stringers, and that at two places a board had been nailed over holes; and evidence was introduced tending to support this contention.

The plaintiff in error insists that the great weight of the testimony supports its views of the condition of the sidewalk, and asked this court to review the case on the facts. This has been done by the circuit court, and we discover nothing in the case requiring us to depart from the rule that exempts this court from passing upon the weight of the evidence.

Defendant below excepted to certain rulings of the court of common pleas, at the trial, in admitting and rejecting evidence.

The evidence admitted over the objection of the defendant below, related either to the condition of Mrs. Clagett’s health, or to the pain she suffered; and, as far as we deem necessary to examine it, was given by non-professional witnesses, and partakes of the nature of opinion more than of fact. For instance, Mrs. Webber testified that “she (Mrs. Clagett) was in a very helpless condition, never leaving her bed, except to have her bed made each day, so far as I know;” and again, “her suffering was very intense, and often seemed more than she could bear.” These statements, except that portion of the first one respecting her “ never leaving her bed, etc.,” are, in a strict sense, opinions, or inferences drawn from what the witness had observed while in attendance about the person of Mrs. Clagett. Now, the witness could portray to the jury only in a faint and imperfect way the scene in the sick chamber as it presented itself to her, and upon which she based her statements that Mrs. Clagett “was very helpless * * ” and “suffered intensely * * .” The tones of voice, the expressions of the face, and the movements of the limbs, which are the natui’al language of pain, so readily and clearly understood by those about the sufferer, cannot be reproduced so as to impress the jury as they did the witness; neither can those appearances that accompany and establish the fact of weakness and helplessness. Therefore, to say that those abouEa sick or injured person shall not be permitted to give in evidence their opinion, based on observation, of the condition or suffering of the patient, is to exclude from the jury the only efficient proof of those facts. The rule admitting such evidence is one of necessity. Where the fact to be established must “ be derived from a series of instances passing under the observation” of witnesses, “which yet they never could detail to the jury,” opinion will be received. McKee v. Nelson, 4 Cowan, 356; see Steamboat v. Logan, 18 Ohio, 396, where this rule in 4 Cowan is quoted with approval; see also Stewart v. State, 19 Ohio, 302; Yahn v. Ottumwa, 22 Am. Law Reg. 644 and note on page 653; 7 Am. & Eng. Encyclopedia of Law, 492; Parker v. Steamboat Co., 109 Mass. 449. And when it is remembered that the intelligence, fairness, opportunities to observe, and other circumstances affecting the credibility of the witness, can be called out by a cross-examination, there remains but little solid objection to the reception of this class of testimony.

Counsel for the village offered in evidence the ordinance fixing the rate of taxation for the village, for the year 18.82, for the purpose of showing, in connection with evidence of the value of the taxable property within its limits, the amount of revenue collected for street purposes, and that all of it had been expended in other necessary repairs. This evidence was rejected by the common pleas court, and exceptions taken. Counsel contend this was error, because the evidence tended to rebut the charge of negligence in omitting to repair the defect complained of, and cite in support of his contention the cases of Rooney v. Inhabitants of Randolph, 128 Mass. 580; Monk v. New Utrecht, 104 N. Y. 552.

These cases arose under statutes of their respective states, and in each case the work was to be done at the public cost, and if it be conceded that in this state, when repairs aré to be made at the expense of a municipal corporation, a want of funds would be a defense against a liability for damages for an injury caused by a neglect to repair, yet the principal could not be applied to the present case, for the village could have discharged its duty in this respect by requiring the owner of the adjacent property to make the necessary repairs, or upon his default caused them to be made, and charge the cost upon that property; and'the united credit of the village and the adjacent property would, no doubt, be sufficient for that purpose, though the village treasury was, at the time, empty. The evidence was therefore immaterial, and for that reason properly rejected.

During the cross-examination of the plaintiff, she was asked by counsel for the village if she had not been delivered of a bastard child. Her counsel objected to the question, and it was ruled out, to which ruling the village objected. The question was immaterial to the issue being tried, and it is the settled rule in this state that the extent to which, upon cross-examination, immaterial questions may be put to a witness, rests in the sound discretion of the trial court. Wroe v. The State, 20 Ohio St. 460; Bank v. Slemmons, 34 Ohio St. 142 ; Hanoff v. The State, 37 Ohio St. 178.

In the case here, the cross-examination was long and exhaustive, and the action of the court did not trench upon the rights of the village in this respect.

The court of common pleas refused to give to the jury certain special charges requested to be given by the village, some of which contained important legal propositions, which, if sound, were applicable to the facts of the case. There was a series of seven propositions; all were refused, and the exception was general. Some of these propositions, at least, were unsound. Whether the exception in this case can be distinguished from those in other cases, where they have been held by this court to be insufficient to point out the error complained of, we do not determine. This labor is unnecessary, lor the majority of the court hold that the judgment should be reversed for errors in the charge of the court as given, which were specifically excepted to at the time.

The first proposition of the charge as given, to which the village excepted, was the following: If the corporation had notice that the sidewalk was generally defective, it is not material whether the precise defect which, may have caused the injury was known or not.”

That the sidewalk had become dished and generally defective in that particular was not disputed, and in view of that fact the majority of the court are of opinion the charge was misleading. The jury might well have understood that the village was charged, as matter of law, with notice of the defect that caused the injury, if it knew the sidewalk had become dished. In order to charge, as matter of law, a corporation with notice of a particular defect from its knowledge of the existence of a general one, the first should be of the same character with the latter, or at least so related to it that the particular defect is a usual concomitant of the general one. As, for instance, in the case before us, if the village knew that the boards placed across the sidewalk were generally loose, or, in default of that knowledge, knew the stringers had become rotten, so that the nails would easily draw from them, it might be chargeable with notice of the defect which caused the injury, although, in fact, it did not know that the particular board that tripped the plaintiff below was loose.

If, however, the general defect known to the village was not of a character to make the sidewalk unsafe, or was of a character, totally unlike that which caused the injury, so that the existence of one afforded no presumption of the existence of the other, there is no sound principle which requires notice of one to constitute, as a matter of law, notice of the other. Even if there was such relation between them that one would frequently be found in connection with the other, yet it is not the province of the law to declaré that proof of one is proof of the other. This is only done where the connection is universal, or so close that the law will not permit it to be denied. Again, take the case at ba-r; the village admitted that the walk was defective, in that it had. become dished by the settling of the middle stringers, but it strenuously contended that in other respects its condition was good; that the outside stringers were sound, the boards firmly nailed to them, and that there was nothing in its appearance to indicate that it was dangerous to pass over it. Evidence was given, which, if believed by the jury, would establish that contention. Now it can not be said that in the nature of things there is such close relation between a wooden sidewalk that has become dished by the settlingofthe middle stringers, and the defect which caused the injury to Mrs. Clagett, as that from the first, the other is necessarily, as matter of law, to be presumed.

~We are cited to Shearman and Redfield on Negligence, vol. 2, page 368, in support of the proposition given to the jury; but those authors, evidently, had in view defects of the same general character; for the cases of Weisenberg v. Appleton, 26 Wis. 56, and Aurora v. Hillman, 90 Ill. 61, which they cite in support of the proposition, were both cases in which the defect that caused the injury was of the same character, and fairly and naturally inferable from the general defect of which the corporation was shown to have had notice.

Counsel for the village also excepted to the following proposition, which was given in charge to the jury : “ An order given by the corporation to an adjacent land proprietor to repair the sidewalk ‘would be an admission of notice of defectiveness.” It is, no doubt, true that a notice given by the coi’poration to repair is an admission of the existence of the defect ordered to be repaired, but is it, as matter of law, an admission of the existence of another defect, different in character, or of one having no necessary connection with it ? In the case before us, the corporation admitted having knowledge that the sidewalk in question was dished and generally defective in that respect; that at each of two places a board had been nailed over a hole, and contended that it was these delects it had ordered to be repaired, and no others. It contended, not only that it had no notice of any other defect, but that in fact no other general defect existed, and this was the real contention between the parties respecting this part of the case. The plaintiff below introduced evidence to establish its contention that the sidewalk was old, the stringers decayed so' that they would not hold nails, and the boards generally loose ; while the village gave evidence tending to show that the outside stringers were sound, the boards firmly nailed to them, and the walk generally in good condition.

Under that state of the evidence it was misleading to instruct the jury that notice to repair was an admission of defectiveness. The only notice in dispute was whether the village knew of the defect that plaintiff below claimed caused her injury, and the jury must have understood the charge as referring to that defect. It was equivalent to saying that the notice to repair, which the village admitted it gave, was an admission of notice of the defect in dispute. It left nothing on this point for the jury to find. It ignored the fact that the village might have had knowledge of the dished condition of the sidewalk, or that boards had been nailed over small holes in it, and have required it to be repaired in these respects, while it had no notice of the defect that caused the injury, or even if there had been no such defect in fact. As has already been shown, the sidewalk may have been dished and yet remain sound and secure in respect of the defect complained of. If this could be so, then notice of one cannot, as matter of law, be notice of the.other.

We think the question, whether or not the village had no- ' tice of the defect in dispute, should have been submitted to the jury upon all the evidence in the case.

Judgment reversed.