author: Spear, J.

text:
    Fries v. The Wheeling & Lake Erie Railway Co. et. al.

      Possession of land by railroad company — Verbal contract with owner as to compensation — Failure of promise — Remedy of land owner —Ele ttion — Statute of limitations.

    1. Where a railroad company has taken possession of land for its right of way, and incorporated it as part of its permanent railroad track, with the verbal consent of the owner, on condition of compensation verbally promised but refused and not performed, and without appropriation proceedings and without any agreement in writing with the owner, such owner has an election of remedies, either (1) to proceed in the probate court to compel appropriation under section 6448, Revised Statutes ; or (2) by assenting to such possession by the company as an appropriation in fact, and tendering conveyance, to proceed in the court of common pleas to recover compensation.
    2. Such proceeding for compensation cannot be enlarged to include an inquiry of damages to other lands; but the jurisdiction of the'court of common pleas is not ousted by allegations of damage to other lands and prayer for recovery by reason thereof.
    3. The proceeding to compel an appropriation is not barred by the lapse of less than twenty-one years from the time of such occupancy by the company.
    4. Where such action for compensation is brought within twenty one years from the time of such occupation, and the petition does not show that the election was made six' years or more before the commencement of the action, it will not be subject to demurrer on the ground that the cause of action did not accrue within six years next before the action was begun.
    (Decided March 9, 1897.)
    Error to the Circuit Court of Huron county.
    Plaintiff’s action was commenced in the court of common pleas of Huron county, July 13,1889. At the November term, 1893, plaintiff recovered a judgment against defendant in error for $2,952.16 and costs. The action was based upon a’ claim for the value of land taken by the company for its permanent roadway, and for damages to plaintiff’s remaining lands.
    At the November term, 1894, of the circuit court of that county, the judgment was reversed for error in not sustaining defendant’s demurrer to plaintiff’s second amended petition, and not dismissing the action; and plaintiff’s cause was thereupon dismissed. Other errors set out in the petition in error were not passed upon. This proceeding is brought to reverse the judgment of reversal.
    Further facts will be found in the opinion.

      G. T. Steioart for plaintiff in error.
    Swayne, Hayes, c& Tyler, for defendants in error.
    The points made by counsel are sufficiently set forth in the opinion.
   Spear, J.

It appeared by the second amended petition, among other things, that the land taken (three and 56-100 acres), was part of a farm in Huron county, to which plaintiff, April 3, 1880, acquired title, with every claim and right of action of the former owner ; that prior to that date the Wheeling & Lake Erie Railroad Company, without the consent of "the owners, took possession of the strip and constructed its railroad thereon; that June25,1886, the Wheeling & Lake Erie Railway Company, the successor of the said railroad company, without any grant or conveyance from, or agreement with, the plaintiff; without any right or title, legal or equitable thereto, and with only the ver bal consent of plaintiff on condition of compensation never performed, took possession of said strip, and has since used and now uses it as an integral part of its permanent railroad. Plaintiff is entitled to recover for value of land taken and damages to remaining land, four thousand dollars. Payment has been often demanded, but refused. Plaintiff here tenders due conveyance of said right of way to the railway company, and asks that the court take an account and render judgment for the amount due to him, adjudge the same a valid lien and for other relief.

The demurrer which the circuit court held ought to have been sustained was on the sole ground that the action was barred by the six years, statute of - limitations.

The question arising, as stated by the defendant’s counsel, is : “Which section of the statute of limitations governs the suit of a landowner against a railroad company, for compensation for land taken for right of way and for damages to land not taken, the suit being brought in the court of common pleas and tender of a deed for the land taken being made?” And, putting their claim ill brief form, it is “that the company entered with the consent of the plaintiff and that his remedy is a chose in action for money only for the amount of the compensation for land taken and damages to the rest of the land, and that this is barred by the six years statute of limitations on which the demurrer was based; and the circuit court, by its judgment affirmed thi s claim of the bar of the statute.

Plaintiff’s contention is, in substance, that the six years limitation does not apply where there has been no agreement in writing and has been no compensation, whether the entry was by consent of the owner or not, and that the right of the plaintiff to compensation and damages subsists so long as the company has not acquired title to the land, and that this right may be enforced by action in the court of common pleas.

Which is right? Or if neither is, what is the correct rule?

In entering upon the inquiry, let us look at the situation of the parties at the commencement of the suit. In brief, it was this: The company is a railroad corporation authorized by law to make appropriation of private property. By its own action in 1886, and by the action of its predecessor in 1880, it was in possession of three and 56.100 acres of land belonging to the plaintiff without any appropriation proceeding, without any agreement in writing, and without having paid therefor, but with the verbal consent of the owner under a promise of compensation afterward refused and never performed. Over and upon the land taken it had constructed its railroad, and the land had'thus become an integral part of the permanent track of its railroad. Under these circumstances, what remedy, or remedies, after the company had neglected and refused to pay, were open to plaintiff? Might he (1) resort to ejectment? Or, (2) could he compel an appropriation under the statute? Or (3) was he confined to a suit to recover compensation?

As to the right of ejectment we suppose the law is entirely settled. He could not have that remedy. His consent to the entry would estop him. Goodin v. Canal Co., 18 Ohio St., 169 ; Penna. Co. v. Platt, 47 Ohio St., 366. The reason for the rule lies in considerations of public convenience.

Whether or not he could compel an appropriation depends upon the statute. Section 6448 provides: ‘When a corporation, authorized bylaw to make appropriation of private property, * * * has taken possession of, and is occupying or using the land of any person * * * for any purpose, and the land so occupied or used has not been appropriated and paid for by the corporation, or is not held by any agreement in writing with the owner thereof, * * * such owner or owners, or either of them, may serve notice, in writing, upon the corporation in the manner provided for the service of summons against a corporation, to proceed under this chapter to appropriate the lands, and on failure of such Corporation, for ten days so to proceed, said owner or owners * * * may file a petition in the probate court of the proper county setting forth the fact of such use or occupation by the corporation, that the corporation has no right, legal or equitable thereto, * * that the notice provided in this section has been duly served, that the time of limitation under the notice has elasped, and such other facts, including a pertinent description of the land so used or occupied, as may be proper to a full understanding of the facts.” Then follow other provisions not necessary to be recited.

Section 6449 provides for summons and further proceedings relating to trial, final judgment, and collection of the same, and concludes: “But this section shall not be construed to impair or lessen in any manner the right the owner or owners * * * may have to proceed against the corporation as in all other cases of the unlawful entry upon lands. ”

No reported case by this court, so far as we are aware, has undertaken to give construction to this statute as to the precise question now being considered, and hence we are at liberty to construe the statute so as to most effectually carry out the purpose of the legislature in its enactment. And, in giving construction, the court will keep distinctly in' mind that the legislature was providing ■a remedy for the private citizen who is in the right as against a corporation which is in the wrong. The latter, either by its strong hand, forcibly, or by making a verbal promise which it has not kepi, has acquired possession of the real property of the former and is using’ it under its extraordinary power of eminent domain, for its corporate purposes. In such condition there surely would be no occasion for giving to the statute an illiberal construction, especially when its object is to preserve the spirit of that clause of the bill of rights which guarantees the inviolability of private property and declares that where taken for public use in time of peace a compensation shall first be made in money. At least we should give full effect to the operative words of the statute. What are they ? Why, that all owners whose lands have been taken by such a corporation and have not been appropriated and paid for, or are not held by any agreement in writing with the owner, shall have the benefit of this statute. That is, owners whose lands have been appropriated and paid for, or are held .by an agreement in writing, may not have resort to this statute ; all other owners whose lands have been so taken may have. No exclusion of an owner who has consented verbally to the taking, or made a verbal agreement in relation thereto, is here expressed. If an agreement in writing has been executed by which the land is held, that is the measure of the owner’s rights, and such owner cannot have the benefit of the statute. Verbal agreements are not recognized as binding, for the same reason, doubtless, that induced the enactment of our statute of frauds with respect to verbal contracts for land, viz.: to prevent frauds and perjuries. The natural effect of the words used is, that if the owner has a contract in writing- on which he may rely, that must be his sole reliance, but he is not to be compelled to rely on the uncertain security afforded by the word of a right-of-way agent, or other agent of the corporation. It seems to us reasonably clear that unless the natural meaning of the descriptive words: “The land so occupied or used has not been appropriated and paid for by the corporation, or is not held by any agreement in writing with the owner thereof,” is restrained by what follows in that or the succeeding section, an owner who has not been paid for his land, and has made no written agreement for its possession and use by the company, may have the benefit of this statute, although he verbally consented to the possession by the company.

It is insisted, however, that the possession by consent gives to the company an equitable right to the land. If this be so it would follow that the fact of consent would render it impossible for the owner to truthfully make the allegation required by the statute that the corporation has no right, legal or equitable, to the land. We would not be ready to concede, even as a general proposition, that a verbal agreement by one in possession to pay for land wholly repudiated, gives to the repudiator an equitable right as against the owner. Were the controversy an action of ejectment between private parties, not involving any question of the public convenience, and the defendant set up that his possession was that of a purchaser, we would suppose that, in the absence of allegations that the purchase money had been paid or was- not due, he must aver that he was ready to pay, and tender pajnnent; that if the pleading lacked that element it would be fatally defective, and it is difficult to see how it could stand' in the way of a judgment for plaintiff on the pleadings. And why? Simply because the answer showed no equitable right in the land. But even if this were otherwise, we would still have to inquire what significance is to be attached to those words used in the connection in which we find them here, and whether, within the meaning of this statute, such facts would establish an equitable right ?

We suppose the rule to be well settled that the legislature is presumed to be consistent with itself; and if in one place it has exp’ressecj^its intent distinctly it will be understood not to have changed it unless that intent clearly appears. The language of every enactment, therefore, will be construed, so far as possible, as to be consistent with every other which it does not in express terms modify or repeal, and the same rule applies as to the several parts of the same act. The revocation or alteration of a purpose clearly expressed will not obtain if all the words of the act may have their proper operation without it. So, too, an incidental purpose will not, ordinarily be permitted to override the main purpose of the act. In this statute the ground of the action, and the conditions on which it may be brought, are given by the words: “the land so occupied has not been appropriated and paid for by^ the corporation, or is not held by any agreement in writing with the owner. ” That which follows is but matter of detail; it is a direction as to the form of the petition. It is a permission, also, that whenever the condition described has arisen the pleader may allege that the company has no right, legal or equitable, and warrants the inference that within the purview of the act the allegation would be true. To hold that a railroad company which has acquired the verbal consent of the owner to its possession, by a verbal agreement to pay which it has wholly repudiated, is possessed of ■ an equitable right to the land which interferes with the enforcement of this statute, would, it seems to us, work an unwarranted modification of the ground of action itself. Such holding would restrain the operative words, and, in effect, incorporate a qualification which would impair the beneficial purposes of the enactment. It would give to that which is but an incident the effect of abridging the principal purpose.' Whatever else may have been intended by the words “right, legal or equitable,” it is not reasonable to assume that the legislature intended by their use in this connection, to impair the force of the operative language used by adding a condition, which would exclude a class of owners from the benefits of the statute, who, by any natural and ordinary construction of language, are included.

But it is further insisted that the entry of the company in this case could not have been unlawful because it was by consent. Hence, it is to be inferred from the saving clause of section 6449, preserving unimpaired to owners the right “to proceed against the corporation as in all other eases of the unlawful entry upon lands,” that the statute, covering as its terms express, unlawful entries only, cannot be held to cover this case. We think the inference does not follow. The effect of this clause is to enlarge the 'remedy, rather than to curtail it, and it would be a queer use of logic to presume that an intention to enlarge shows, also,' with respect to the same subject matter, an intention to limit. On the contrary the clause suggests that every possession save those enumerated, is unlawful. That is, every entry is unlawful within the scope of this statute which has not been preceded or accompanied either by an agreement in writing with the owner or by appropriation and payment. And it would follow that, where there has been an unlawful entry, the owner may resort to any remedy that is appropriate. As, for instance, if the entry was without his knowledge or against his protest, he may have ejectment, or compel appropriation, or have an action for compensation, as best suits him. Or, if he had knowledge and consented to the entry, he may not resort to ejectment, but may either demand an appropriation, or affirm the appropriation in fact made by the company, and, tendering- conveyance, recover compensation.

If the conclusions hereinbefore stated are correct the plaintiff had an election to proceed under the statute and compel an appropriation, or accepting the acts of the company as an appropriation, sue for compensation. If -he resorted to the former remedy the inquiry .might include as well damages to remaining lands as compensation for lands taken, and would be conducted in the probate court, inasmuch as that court alone (save under exceptional conditions1 named in the statute), has jurisdiction in appropriation proceedings. If, however, he preferred, the latter remedy his action might be instituted, as it was, in the common pleas. But the remedy in the latter court could go no further than compensation for land actually taken. To broaden the inquiry in such case into an assessment of damages to other lands would, practically, make an appropriation case of it, and we think it clear that the statute implies that jurisdiction to entertain such inquiry shall (save in the excepted instances) be confined to the probate court.

As to the proposition that the claim of the plaintiff is at best a chose in action for money only, which would be barred in six years, it is sufficient to say that it has been held by this court in Railroad Co. v. O'Harra, 48 Ohio St., 343, that the remedy of the statute is a substitute for an action to recover the possession; and in Railroad Co. v. Perkins, 49 Ohio St., 326, that the language of the act imports, “that the land remains the property of the owner until it has been condemned and paid for,” “which could not be if the wrongful entry of the company worked an appropriation in law, and converted the claim of the owner for land into one for money only;” which decision also follows the O’Harra case in holding that the right is not barred in less than twenty-one years. So that if plaintiff elected to proceed under the statute he might commence the action within the time above named, and, if his action were for compensation alone, defendant concedes that he would have six years in which to bring- it.

Having a choice of remedies the plaintiff would not be held to have elected until some steps were taken looking to an enforcement of the particular remedy chosen. The defendant’s argument upon the statute of limitation seems to proceed upon the theory that the plaintiff’s consent to the entry by the company was, of itself, an election to proceed for compensation only. We cannot so regard it. It is mere assumption at best, unreasonable and illiberal.- We should not presume, in the absence of proof tending to establish it, that a party has selected his least valuable alternative. But, aside from this, the assumption is utterly inconsistent with the conclusion already announced that the. plaintiff had a choice of remedies, since it makes the very act which clothes him with a right to a choice of two remedies, determine conclusively that he has but one. It is not important to consider here what would amount to an election though we would suppose that it should be some unequivocal act not consistent with any other conclusion. Therefore, if the six years, limitation applies to the remedy of compensation (and we do not find it necessary to determine whether it does or not), a demurrer setting up that statute would not be well taken unless it appeared by the pleading that six years had elapsed after election made and before suit. And, applying that conclusion to the plaintiff’s second amended petition, it does not appear to be open to that objection. Hence, the demurrer to that pleading was properly overruled.

These conclusions are consistent with Railroad Co. v. Hambleton, 40 Ohio St., 497; Nail Co. v. Furnace Co., 46 Ohio St., 544; Penn. Co. v. Platt supra; Railroad Co. v. O'Harra, supra; Longworth v. Cincinnati, 48 Ohio St., 637; Railroad Co. v. Perkins, supra; and Daily v.The State, 51 Ohio St., 348.

Attention is called by counsel to Hatry v. Railway Co., 1 O. C. C., 426, and it is insisted that the question here is ruled by the decision of the circuit court in that case, and directly by paragraphs six, seven and eight of the syllabus of the reported opinion, and that inasmuch as the judgment was affirmed by this court, these paragraphs declare the law of the present ease. Possibly the conclusion of counsel is a natural one, although, in view of the comment upon the Hatry case in the opinion in Railroad Co. v. Perkins, supra, we do not see how it can be; but it is, nevertheless, a mistaken one. The fact, however, that such an impression obtained and has been relied upon by counsel in this and in some other cases, makes it proper to add here some further explanation. The case, in this court, was entitled Hill, Trustee, v. Hatry et al., and was disposed of April 15, 1890 (23 W. L. R, 281), by an announcement containing the following: ‘‘Judgment on petition and cross petition affirmed on the opinion of the circuit court reported in 1 Circuit Court Rep., 426, and authority of Compton v. Railroad Co., 45 Ohio St., 592.” The points made in this court by the petition in error and cross petition in error (the pleadings referred to in the above announcement), did not involve any question affecting the right-of-way claimants in the court below, nor were any of them parties in the case in this court. Hence, this court was not asked to pass upon any question, leg'al or otherwise, involved in that branch of the case below, and did not. attempt to do so. The announcement conveyed to counsel engaged in the case, and others familiar with it, the grounds of the- decision here, although an examination of the record on which the judgment of affirmance was based, might be necessary to a full understanding by others. But there is no ground whatever for the belief that the paragraphs of the syllabus referred to were affirmed by this court.

In the case at bar the circuit court declined to pass upon alleged errors other than that affecting the demurrer to the second amended petition. The judgment of that court will be reversed, and the cause remanded with directions to pass upon the remaining allegations of error, and for further proceedings according to law.

■Judgment reversed.


source: Caselaw Access Project

author: Burket, C. J.

license: Public Domain

text:
    Minnear v. Holloway.

      Reversal of judgment— Verdict 7iot sustained by evidence — Cause re ma7ided — Error of lOTJtier court in application of laTJU — Reversing court 7nayproceed, hoTiu.

    1. When a higher court reverses the judgment of a lower court upon the ground that the verdict or judgment is not sustained by sufficient evidence, or is against the weight of the evidence, the cause must be remanded to the lower court for a new trial; but this does not apply to orders made on hearings on motions.
    2. Where the controlling facts in a civil action are conceded by the parties in their pleadings or evidence, or both combined, without conflict as to any material fact, so that the error of the court lies in the application of the law to such facts, a higher court after reversing the judgment for such error of law, may proceed and render such judgment as the court below should have rendered upon such facts, or remand the cause to the court below for such judgment.
    (Decided March 9, 1897.)
    Error to the Circuit Court of Morrow county.
    The defendant in error obtained a judgment against Benjamin F. Minnear, the husband of plaintiff in error, under section 4356, Revised Statutes, for damages for the sale of intoxicating liquors to the husband of defendant in error. The judgment not being paid the defendant in error, Mrs. Holloway, commenced an action against Maggie B. Min-near and her husband under section 4364, Revised Statutes, to subject the building in which the liquors were sold, to sale for the payment of the judgment. She averred in the petition that the premises were owned by Mrs. Minnear at the time of the sale of the liquors and ever thereafter, and that she permitted her husband to use and occupy the premises for the sale of liquors. Mrs. Minnear, by her answer, denied that she permitted the premises to be so used and occupied.
    The court of common pleas found in favor of Mrs. Minnear, and rendered judgment for her, dismissing the petition.
    A motion was made for a new trial, one ground of which was that the finding and judgment were against the weight of the evidence, which motion was overruled and exceptions taken.
    A petition in error was filed in the circuit court by Mrs. Holloway, and one of her assignments of error was that the court erred in overruling her motion for a new trial. The circuit court reversed the judgment generally, and then proceeded further and rendered a final decree against the defendant below, finding the amount due on the judgment, that the facts stated and allegations in the petition were true, and ordered the said premises to be sold as upon execution for the payment of said judgment and costs, and remanded the cause to the court of common pleas for execution.
    Thereupon the plaintiff in error filed her petition in this court, seeking to reverse the judgment of the circuit court, not only as to the said decree so rendered, but also as to the judgment of reversal.

      L. K. Powell and John De Golley, for plaintiff in error.

      John A. Connally and IE T. Vaughn, for defendant in error.
   Burket, C. J.

The reversal of the judgment by the circuit court was general, without stating any ground therefor, and in such case it is usual to hold the reversal to be upon all the grounds of error assigned in the petition in error. One of the assignments of error in this case was the overruling of the motion for a new trial, and one of the grounds of the motion for a new trial was, that the finding and judgment were against the weight of the evidence. One ground of reversal was, therefore, that the finding and judgment were against the weight of the evidence. The judgment of reversal must, therefore, be affirmed, because under section 6710, Revised Statutes, this court is not required to weigh the evidence to ascertain whether the circuit court was right oí wrong in said reversal.

The circuit court might well find upon weighing the evidence upon the issue joined, that the judgment of the court of common pleas was against the weight of the evidence, and therefore reverse the judgment as it did. But having reversed the judgment, had the circuit court the right under our statutes to proceed and render final judgment on the merits of the case, upon the evidence contained in the bill of exceptions ?

Section 6726, Revised Statutes, provides that upon a reversal of a judgment by the circuit court, that court shall proceed to render such judgment as the court below should have rendered, or remand the cause to the court below for such judgment. It has been repeatedly held by this court that the circuit- court cannot review a case upon the weight of the evidence, unless a motion for a new trial upon the ground that the judgment is not sustained by sufficient evidence, or is against the weight of the evidence, has been filed and overruled, and that this rule is applicable to all cases, both at law and in equity. Westfall v. Dung an, 14 Ohio St., 276; Ide v. Churchill, 14 Ohio St., 372; Randall v. Turner, 17 Ohio St., 262;Turner v. Turner, 17 Ohio St., 449 ; Spangler v. Brown, 26 Ohio St., 389; Everett v. Sumner, 32 Ohio St., 562.

In such cases the exception upon which the petition in error is based is, that the court erred in overruling such motion for a new trial, and the object of reviewing the testimony is to ascertain whether such motion should have been sustained or overruled. In such cases the error sought to be corrected is the error in overruling such motion for a new trial; and if the circuit court finds such error to exist, it should correct the error by doing that which the court below should have done; that is, sustain the motion for a new trial. This would make it necessary to reverse the judgment rendered by the court below, and to remand the cause to that court for a new trial.

It has often been urged, and by some courts in this state held, that in actions in which neither party is entitled to a trial by jury, the bill of exceptions may be regarded as all the evidence in the case reduced to writing, and that upon a reversal of the judgment upon the ground that the judgment is not sustained by sufficient evidence, or is against the weight of the evidence, which is the same thing, the higher court may proceed and find the facts from the bill of exceptions, and render final judgment thereon instead of remanding the cause to the court below for a new trial. Under the old English chancery practice the evidence was required to be all reduced to writing-, and the chancellor refused to hear witnesses orally; but this practice was abandoned in this state at an early day, if it ever existed here ; and now the only way that the evidence can be brought in review in a higher court is upon the overruling of a motion for a new trial, based upon the ground that the verdict or decision is not sustained by sufficient evidence.

The review of the evidence is only to correct the error in overruling such motion for a new trial, and the evidence cannot be used for the further purpose of finding the disputed facts in the case, and rendering judgment 'thereon.

» The case of Yeoman v. Lasley, 40 Ohio St., 339, is often cited as an authority for the rendition of final judgment upon the evidence in a bill of exceptions, after a reversal of the judgment of the court below. That case does not go to the extent claimed. The bill of exceptions in that case contained all the evidence, and one of the errors assigned was, “That the finding and judgment were against the evidence and law. ’ ’

But the final judgment rendered was not based upon the weight of the evidence, but upon the fact that the court erred in applying the law to those facts about which there was no material conflict in the evidence. The statement is a little broad. What was meant was, that the material and controlling facts of the ease were conceded by the parties in their evidence without material conflict. And as a conflict as to an immaterial fact, or a conflict which is immaterial in substance, is not, when judicially considered, a conflict at all, the court in that case acted upon what it regarded the conceded facts in the case.

Thus understood, the case belongs to that class in which the controlling facts are conceded by the parties, either in their pleadings or evidence, or both combined, or are found by the court, and in which the error of the court below lies in applying the law to such facts. In such cases, when the highér court finds that the lower court has erred in applying the law to such facts, the higher court should reverse the judgment, and proceed to render such judgment as the court below should have rendered upon such facts, or remand the cause to the court below for such judgment. And this may be done in any case, whenever the controlling facts are conceded by the parties in their evidence or pleadings, or both combined, even though there may be a conflict as to non-controlling or immateria] facts, and whether the parties are entitled to a trial by jury or not. An example of such judgment by a higher court in a case in which the parties were not entitled to a trial by jury, is found in the ease of Yeoman v. Lasley, 40 Ohio St., 339. And examples of such judgments in cases in which the parties were entitled to a trial by jury, are found in Railway Co v. Burke, 54 Ohio St., 98; Insurance Co. v. Church, 21 Ohio St., 492, and many others found in our reports. Stein v. Steamboat, 17 Ohio St., 471 is a very instructive ease on this point.

In such cases the reversal by the higher court should not be on the ground that the verdict or judgment below was against the weight of the evidence, but that it was contrary to law, that is, that the court below erred in applying1 the law to such conceded facts. The motion for a new trial in such case, if such motion is necessary, should be upon the ground that the verdict or decision is contrary to law.

As new trials are only granted in proceedings in which there are issues of fact, section 5305, what is said above about remanding- eases for a new trial after reversing on the weight of the evidence, cannot apply to orders and judgments made on hearings on affidavits or evidence, for injunctions, or for the vacation of an injunction, or the dissolution of au attachment, or motions for the appointment or discharge of receivers, or motjons for the vacation of an order of arrest in a civil action and other like motions and proceedings in which no issues of fact are made up by pleadings; and there is no trial in the legal sense of that term. In such cases the higher court, upon reversal of the order made on the hearing in the court below, proceeds to make such order as it thinks the court below should have made, or remands the case to the court below with instructions to make such order. Wagner v. Railway Co., 38 Ohio St., 32.

In the case at bar, the pleadings put in issue the material and controlling fact as to whether or not Mrs. Minnear permitted the premises to be used or occupied for the sale of intoxicating liquors. The plaintiff below introduced evidence from which it might well be inferred by a court or jury that she did so permit the premises to be used and occupied, but the defendant stood upon her denial in her answer and offered no evidence. Hence it cannot be said that she conceded, either in her pleadings or evidence, that she permitted the premises to be so used or occupied.

While the circuit court might well reverse the judgment on the ground that the finding and judgment were against the weight of the evidence, it could not reverse the judgment on the ground that it was contrary to law, that is, that the court below erred in applying the law to the conceded facts, because the controlling fact — the permission- — -was not conceded by Mrs. Minnear. The circuit court therefore erred in the judgment which it rendered upon the merits after the reversal of the judgment of the court below.

The judgment of reversal will be affirmed, and the judgment thereafter rendered by the eircuit court will be reversed, and the cause remanded to the court of common pleas for a new trial.

Judgment accordingly.


author: Williams, J.

text:
    Douglas v. Allen.

      Action for malicious prosecution — May be maintained, when.

    In order to maintain an action for malicious prosecution, it must be shown that the prosecution was legally terminated before the commencement of the action; but it is not essential that the plaintiff shall have been acquitted of the charge on a trial of the merits ; the entry of a nolle prosequi, followed by his discharge is sufficient.
    (Decided March 30, 1897.)
    Error to the Circuit Court of Meigs county.
    The court of common pleas sustained a general demurrer to the petition in the original action, which was brought by Allen against Douglas to recover damages for a malicious prosecution ; and the plaintiff not asking leave to amend, final judgment was rendered against him. That judgment was reversed by the circuit court; and the only inquiry here relates to the sufficiency of the petition, which is as follows :
    “On the 16th day of September, A. D., 1893, the defendant falsely and maliciously, and without reasonable or probable cause, procured plaintiff to be indicted by the grand jury of Meigs county, for the crime of unlawfully, wantonly and maliciously throwing down a fence upon lands other than those of the plaintiff, that is to say: ‘That the said Augustus Allen, late of said county, oh the 16th day of August, in the year of our Lord, one thousand eight hundred and ninety -three, at the county of Meigs, aforesaid, unlawfully, wantonly and maliciously did throw down a certain fence inclosing land, towit: A certain field, said land and field being then and there the property of H. M. Douglas. ’ By reason whereof plaintiff was arrested and confined for the period of twenty-four hours, and compelled to give bail to procure his release; and defendant further caused said indictment to be prosecuted, and afterward, towit: At the Septemper term of said court, A. D. 1893, without the consent or procurement of said plaintiff, and by order of said court, at the request of the prosecuting attorney, a nolle prosequi was entered and the said action was dismissed, and the plaintiff discharged; and said prosecution is wholly ended and. determined. By reasons of the premises, plaintiff has been greatly injured in his credit and reputation, to his damage three thousand dollars, for which he asks judgment. ’ ’

      Bussell db Webster for plaintiff in error.

      Merrick db lochran, for defendant in error.
   Williams, J.

The objection which the plaintiff in error makes to the petition is, that it fails to show the termination of the criminal prosecution complained of, in such a manner as will enable the plaintiff to maintain the action; the contention being that, to sustain the action, it is not enough that the prosecution be ended by the entry of a- nolle prosequi to the indictment, but the plaintiff must show that he was acquitted of the charge.

The action for malicious prosecution is given for the redress of the injury caused by the institution of a criminal proceeding on a false charge made maliciously and without probable cause; and it is essential that the prosecution shall have been legally terminated before the commencement of the action, for the reason that until so terminated it cannot be known that the accused will not be convicted ; and if convicted, probable cause for the prosecution will be conclusively established. Upon the question as to what will amount to such a termination, the authorities are not in entire harmony. The rule is sometimes broadly stated that the defendant in the prosecution must have been fully acquitted on a trial; though, in some instances where the rule is thus laid down, it will be found on an examination of the cases, that precise question was not involved. This was so in the case of Bacon v. Town, 4 Cush. 217, in which it is said by Chief Justice Shaw, that it must appear, before the action will lie, that the defendant in the indictment was fully acquitted, and a nolle prosequi is not sufficient. That case is sometimes cited as supporting the proposition that under no circumstances will the entry of a nolle prosequi to the indictment constitute such a termination of the criminal proceeding as will sustain an action for maliciously instituting and prosecuting it. But it appeared in that case, that the nolle relied on as ending the prosecution was entered because of a defect in the indictment. And, speaking of the rule there announced, the same learned judge, in the case of Parker v. Farley, 10 Cush. 279, said : “Were this a new and original question to be decided upon principle, it might be doubted whether it would be just and wise to establish this as an inflexible rule of practice, ” because, it is said, cases might arise where a nolle prosequi is entered without the consent of the accused, and against his remonstrance, thus depriving him of his right of showing the charge was groundless. In this last case, the nolle had been entered to the indictment in pursuance of an agreement between the accused and the prosecuting officer; and such a termination of the prosecution, it was held,. was not sufficient to entitle the plaintiff to maintain his action. The case was so limited and construed in the later one of Graves v. Dawson 130, Mass. 78, where it was held that whether a nolle prosequi is or is not such a termination of a criminal proceeding as is necessary to sustain an action for malicious prosecution depends upon the other facts.

On the other hand, many English and American eases hold that the prosecution is effectually ended by the entry of a nolle prosequi, and a discharge of the accused, who is then entitled to bring and maintain his action for the damages sustained by reason of the prosecution, if it be shown to have been malicious and without probable cause.

We have found no adjudication of this court upon the question; though it was said by Scott, J., in Fortman v. Rottier, 8 Ohio St., 550, that the plaintiff in an action for malicious prosecution must show that he was acquitted of the charge. The question, however, was not involved in that ease. Considering the question on principle, it would seem that the reason of the rule requiring the termination of the prosecution before the commencement of the action, is as well satisfied where the prosecution is ended by a nolle prosequi, followed by the discharge of the accused, as it is by his acquittal of the charge. The prosecution being so ended, there can thereafter be no conviction oE the accused in that proceeding, and therefore no opportunity to establish in that proceeding the existence of probable cause for the prosecution. True, a nolle may be entered at a time when it will not preclude another prosecution for the same offense; but the institution of another prosecution requires a new complaint or indictment, and it becomes a new proceeding. The former one, after the discharge of the defendant therefrom, cannot be reinstated or revived and proceeded with; or if it could be, unless that is done within the proper time, the prosecution would nevertheless be ended. And when the accused is deprived of a trial, by the entry of a nolle prosequi, the injury he sustains from the malicious prosecution may be no less serious or certain than if he had been acquitted on a trial. In either case, he is still required to show malice and the want of probable cause for the prosecution, before he can recover; and if these can be shown, there appears to be no substantial reason why he should not have re- ’ dress in the one ease as well as in the other.. Nor, can it be said that the right to maintain the action in the one case, any more than in the other, would operate to deter prudent persons from instituting criminal prosecutions in good faith, and ostensibly for the public good. Placing the burden on the plaintiff of proving malice and wa.nt of probable cause for the prosecution, affords ample protection to those who in good faith institute criminal prosecutions in the public interest.

Our statute forbids the entry of a nolle prosequi in any cause, “without leave of the court, on good cause shown, in open court. ” Revised Statutes, section 1275. The allegation of the petition that the nolle prosequi to the indictment against the plaintiff was entered by order of the court in which it was pending, at the request of the prosecuting officer, imports that it was so entered upon good cause shown, in open court, in conformity with the statute ; and, with the further allegation that the prosecution was wholly ended and the plaintiff discharged, a termination of the prosecution of which the plaintiff complained, is, we think, sufficiently averred.

Beside, the statute on which the prosecution was based, section 6868, of the Revised Statutes, expressly limits the time within which prosecutions under it shall be commenced, to one year from the time the offense was committed; and the record in the case shows more than that period had elapsed when the. plaintiff below commenced his action; so that, at that time no further prosecution could be had for the alleged offense, and the prosecution was therefore finally ended.

Judgment affirmed.


author: Minshall, J.

text:
    Pavey v. Vance et al.
    ' Easement — Egress and regress through land of another — Right by prescription — Right will pass by conveyance or descent of land.

    1. Where one uses a way over the land of another without permission as a way incident to his own land and continues to do so with the knowledge of the owner, such use is, of itself adverse, and evidence of a claim of right. And where the owner of the servient estate claims that the use was permissive, he has the burthen of showing it.
    2. When one who is the owner of a tract of land uses a way over the land of another for the convenience of egress and regress to his own land, without let or hindrance and without obstruction for the period of twenty-one years, he thereby, in the absence of anything to the contrary, acquires a right by prescription. to its use as an incident to his,/and ; and the right will pass by a conveyance or descent of the land.
    (Decided March 30, 1897.)
    Error to the Circuit Court of Highland county.
    Suit was brought in the court of common pleas of Highland county by the Vances to enjoin the defendant, Pavey, from closing up a certain way used by the plaintiffs over his land, which they claimed as appendant to their land. The defendant denied the right. The case was appealed to the circuit court, where at the trial on the issues, the court at the request of the defendant made a finding of the facts and its conclusions of law separately. The finding of facts is as follows:
    “That the plaintiffs are the owners in fee simple of the lands described as theirs in the petition, and that the defendant is the owner of the lands set out in the petition as his; that the plaintiffs acquired the legal title from D. J. Vance; that D. J. Vance had occupied the lands from A. D., 1857; that the defendant acquired the titleto his lands from Penelope Evans, who acquired. it from Benjamin Barr ere, now deceased. That defendant had not tice after he contracted to buy said premises, and before his acceptance of the conveyance to him from. Evans, that D. J. Vance claimed the right of way contended for by the plaintiffs in this suit.
    That for more than twenty-one years prior to the acquiring of title by defendant of the lands from Penelope Evans, D. J. Vance and his family, in going to and from his farm and dwelling to the turnpike leading from Hillsboro to New Market, and others going to and from said pike to Vance’s had passed over the lands of defendant, using a way or road through defendant’s farm, as a foot way, wagon way, carriage way, and for hauling produce to and from said Vance farm and horseback way, without let or hindrance or obstruction from Benjamin Barrere in his lifetime, or Penelope Evans, or their tenants.
    That'said road was used by said Barerreand his successors in ownership, during all of said period of time, as a farm road throngh his farm from the pike to the dwelling-house on the D. J. Vance farm, and to the back part of the farm to the farm line of said Vance, said entire farm being inclosed during all of said period of time, being inclosed by fences and gates.
    That the Vances and also the owners and occupants of defendant’s lands, used said way whenever they saw ñt, and was also used as one of the means of approach (but not the only road,) to the Vance farm and house, and for departure therefrom, to and from the said turnpike, and was so used by said Vances and those going to and from the Vance place, without askingdeave of the occupants of defendant’s farm and without objection. The said roadway is described as follows :
    Beginning in the line of the land of defendant and land of Jesse and Elizabeth McConnaughey, (formerly owned by Benj. Bar rere.); running thence a northwesterly course, over the lands of said defendant, Pavey, and crossing a branch of Rocky Fork creek, passes by the dwelling-house on. the lands of said Pavey, and continued a northwesterly course to the said Ripley turnpike, at a point about twenty-seven rods southwest of the schoolhouse on said turnpike, known as the “Kansas schoolhouse, ’ ’ there being three gates on said roadway, viz :
    One gate at the pike, one at the Pavey dwelling-house, and one at the line between the lands of the defendant and said Jesse and Elizabeth E. McConnaughey ; and the length of said right oí way from where it enters that land of said Pavey to its termination at said turnpike, being about 116 rods.
    The court further finds that the defendant, A. E. Pavey, obstructed said roadway in the spring of A. D., 1893, prior to the bringing of this suit, by erecting a fence across the same, and ever since preventing the Vances passing over the same in vehicles and on horseback.”
    The court found as a matter of law from these facts that the plaintiffs were the owners of a right of way by prescription over the lands of the defendant, and rendered judgment for the relief prayed for ; enjoined the defendant from obstructing the way, other than by the use of gates as before maintained; and ordered the removal of the obstruction. The defendant excepted to the court’s conclusions of law and judgment on the facts, and prosecutes error here for a reversal of the judgment, on the ground that it is not supported by the facts.

      Ilenry A. Pavey, for plaintiff in error.
    We contend that there is error in the conclusions of law found by the Court in this, viz :
    That at least three of the essential elements of fact requisite to support Vance’s .claim to a prescriptive right-of-way over the Barrere premises (subsequently owned by Pavey) were not found to exist, viz: That the user of the
    right-of-way by the Vances was had by them for more than twenty-oñe years imder any claim of right. That it was exclusive, or that Barrere or Evans had knowledge of or acquiesced in any “claimof right ” made by the Vances or their predecessors.
    To constitute an easement by prescription it must appear that the enjoyment of the use was not only adverse but under a claim of right. uBoth of these elements must exist according to the current of authority in connection with the prescribed period of enjoyment to create a right by prescription.” Lembeck v. Bye, 47 Ohio St., 150; Washburn on Easememt 150 (cited), Tootle v. Gliflin, 22 Ohio St., 247; Young v. Spangler, 2 O. Circuit Court Rep., 549; Washburn on Easements, 86.
    We find that the constituent elements of an easement by prescription, are
    1. Adverse possession.
    2. The possession must be under a claim of right.

    3. Possession must be exclusive.
    4. It must be continuous and uninterrupted.
    5. It must be with the knowledge and acquiescence of the owner of the estate sought to be subjected to the use.
    6. All of the foregoing conditions must, in this state, have existed for more than twenty-one years before such right is established, and they must have existed concurrently.
    .It is not averred in the petition of the plaintiffs that the use which they claim to have énjoyed was under any “claim of right,” asserted for twenty-one years, nor was it claimed or shown or found by the Court that Barrere, Evans or any one owning such estate prior to Pavey’s purchase of it had any knowledge of or acquiesced in such claim of right.
    ■ The statement that Pavey at the time he purchased the [place had notice of the claim of D. J. Vance, has no significance as it is not claimed that he acquiesced in it.
    The Court find that for more than twenty-one years before Pavey became the owner of the Barrere place, the Vances had used the roadway described “without let, or hindrance, or obstruction from Benjamin Barrere in his lifetime, or Penelope Evans or their tenants. ’ ’
    There was merely a tacit permission, if any, on the part of Barrere and Evans that their neighbor might use, in common with themselves, their farm road.
    It is not found or claimed by the Vances that their use was exclusive for any length of time.
    . The conclusions of the Court that the burden of showing that the use -of such road-way was under some license or grant, was on the defendant has certainly never before been held to be the law in this state, whatever may have ( been the holdings of courts in other states. Nor do we think such proposition can be sustained by sound reasoning, as applicable in any .event, in a young commonwealth like our own just emerging, or emerged from the conditions of pioneer life and customs, when every bridle path was used by neighboring owners in common. Hence the tacit permission by a kindly and obliging neighbor to the use by his neighbor, (who asserts no hostile claim of right) of a right-of-way, as in this case raises no presumption of a g-rant.

      Charles II. Collins, for defendants in error.
    In regard to an easement as passing over another man’s land, where one uses the easement whenever he sees fit without asking leave and without objection it is adverse. Garrett v. Jackson, 20 Penn. St. 335.
    And the mere inattention of the owner of the land, that an easement in it is used by another ■does not weaken the force of the adverse possession. Beimer v. Stuber, 20 Penn. St. 464.
    If a right of way becomes incident to the enjoyment of certain premises — a dwelling house for example — it may be used as a means1 of approach to or departure from the same by any one having occasion to do so. State v. McDaniel, ■3 Jones L. 284; Barnstable v. Thatcher, 3 Met. '245.
    “Proof of an adverse and uninterrupted use of a way for twenty years (twenty-one in Ohio), with the knowledge and acquiescence of the owner of the land, is sufficient to establish an incumbrance upon land without proof of an express claim of the right by the persons using the way or of an express admission of the right by the owner of the land.” Blake v. Everett, 1 Allen (Mass), 248. Arbuckle v. Ward, 29 Vt., 43; Steffy v. Ccmpenter, 37 Penn. St. 41; Lehigh Valley R. R. Co. v. McFarland, 30 N. J. Eq., 180; Ballard v. Dyson, 1 Taunt, 1. 279; Parks v. Bishop, 120 Mass., 340; Sloan v. Holliday, 30 L. T. (N. S.,) 757; Williams v. James, L. R., 2 C. P., 577; Durey. Heathcote, 25 L. J. (N. S.,) Exch. 245; Coke Litt. 114b; 2 Inst. 653-654; Canhcmn v. Fisk, 2 O. & J. 126, per Bayley, B.; Carr v. Abster, 3 A. D. & Kl. N. S., 581; Demuth y. Amiveg, 90 Penn. St., .181; Wallace v. Fletcher, 10 Foster, 448; Bodfish y. Bodfish, 105 Mass., 317; Carr y. Foster, 3 Q. B., 581; Esling ■ y. Williams, 10 Penn. St., 126; Garrett y. Jackson, 20 Penn. St., 335, and Reimer y. Stuber, 20 Penn. St.., 464 ; Battishill y. Reed, 18 O. B., 696; Ingraham y. Hougfy, 1 Jones (N. C.), 39; Hoag y. Delorme, 30 Wis., 594; Carlisle y. Cooper, 4 C. E. Green, 262; 3 Kent’s. Commentaries, 444; Dodge v. Stacy, 39 Vt. 558; Kent v. Waite, 10 Pick., 138; Sargeani y. Ballard, 9 Pick., 251; Williams y. Nelson, 23 Pick., 142; Leonard y. Nelson, 7 Allen, 277. See also Carmody y. Mulrooney, 89 Wis., 552; (58 N. W. Rep., 1109.) Lewiston y. Procter, 27 111., 417. Rogerson v. Shepard, 33 W. Va., 307; Hesperia Land, etc., Co. v. Rogei'S, 83 Cal., 10; Middleton v. Newport, 16 R. L., 319; Winston y. Johnson, 42 Minn.., 398; O' Daniel v. O'Daniel, 88 Ky., 185; McKenzie y. Elliott, 134 111., 156; Garland y. Furber, 47 N. H., 304; I-Ioups y. Aldersori, 22 Iowa, 162; Maxioelly. McAfee, 9 B. Mon., 20; Welsh v. Wilcox, 101 Mass., 163; Foote y. Manhattan Ry. Co., 12 N. Y. Sup., 516; 125 N. Y., 380; 42 Minn., 298; 61 Penn. St., 21; Wash, on Easements. 134; 15 Hun., 600; .1 Sumner, (U. S.), 402; 10 Pet., 54; 10 Pick., 138; 6 Cush., 254; 15 Johns., 447; 12 Vt., 123; 17 Wis., 1; 35 Conn., '288; 27 Col. 366; 20 Ohio, 401; 42 Inch, 44; 104 111., 455; 27 Tex., 74; 3 Rawle, 492; Goocltitle v. Walker, 1 Burrow, 133; Peck v. Smith, 1 Conn., 103; Cortelycm v. Von Bront, 2 Johns. (N. Y.), 357; Lewis v. Jones, 1 Pa., 336; Jackson v. Hathaway, 15 Pa., 447; Perley v. Chandler, 6 Mass., 454; Pillsbury v. Brown, 82 Me., 450 ; Phillips v. Dressier, 122 Ind., 414; Atkins v. Board-man, 2 Mete., 457'; Williams v. Safford, 7 Barb., 309; Staple v. Hayden, 2 Lcl. Ray., 922-,Ackreyd v. Smith, 10 C. B., 164; Ledyard v. Morey, 54 Mich., 77; 13 Atl. Rep., 81; Barnes v. Haynes, 13 Gray, 188; Marion v. Creigh,.Wl Conn., 462; Harrison v. Pike, 4 W. L. B., 156; Harrison v. Creighead, 4 W. L. B., 500; Converse v. Hawkins, 31 Ohio St., 209; Metzger v. Hohoick, 1 Ohio Decisions, 396; Can-ham v. Fisk, 2 C. & J. 126, per Bayley, B.; Carr v. Foster, 3 Ad. & EL, N. S., 581; 3 Rawle, 492; 125 N. Y., 380; 26 N. E. Rep., 471; 10 Pick., 138; 42 Minn., 398; (45 N. W. Rep. 958;) 61 Penn. St., 100; Am. Dec., 597; 42 Ind. 44; 104 111. 455; 1 Sumner U. S., 402; 10 Pat., 54; 6 ’Cush., 254; 29 Tex. 74; 15 Johns 447-74 (94 Am. Dec., 260); 12 Vt., 123; 27 Cal., 366; 17 Wis., 1; 43 Indiana; 35 Conn., 228; Garrett v. Jackson, 20 Penn. St., 335; Blake v. Everett, 1 Allen (Mass.), 248; State v. McDaniel, 8 Jones Law R., 284; Lehigh Valley R. R. Co. v. McFarland, 30 N. J. Eq.,180; Peck v. Smith,, 1 Conn., 103-147; 15 Hun, 600; 13 Atlantic Reporter, 81; 42 Ind., 44; 104 111., 455; Welsh v. Wilcox, .101 Mass., 163; Ball v. Herbert, 3 T. R., 253; 37 Vt., 312; 29 Texas, 74 (94 Am. Dec. 260); O'Daniels. O'Daniel, 88 Kentucky (10 S. W. Rep., 638); Diffendal v. Midland R. R. Co., 86 W. Va., 459 (10 S. E. Rep., 536); Ashley v. Ashley, 4 Gray, 197; Miller v. Gar-

      lock, 8 Barb., 153; Chalk v. M'Alily, 11 Rich., 153; Williams v. Nelson, 23 Pick., 141; Yard v. Ford, 2 Wms. Saund, 172; Blake v. Everett, 1 Allen, 248; Bicard v. Williams, 7 Wheat., 59; Hammond v. Zehner, 21 N. Y., 118; Boliver Mg. Co. v. Neponset Mg, Co., 16 Pick., 241; Calvins. Burnet, 17 Wend., 564; Olney v. Fenner, 2 R. I., 211; Pue v. Pue, 4 Ind. Ch. Dec., 386; WorrallY. Rhoades, 2 Whart., 427; Polly v. Pic All, 37 Ala., 30; Perrin v. Garfield, 37 Vt., 310; Union Water Co. v. Crary, 25 Cal. 509; School District v. Lynch, 33 Conn., 334; Pierce v. McCloud-, 42 Penn. St., 102; Nash v. Peden, 1 Speeres, 22.
   Minshall, J.

The plaintiff in error claims that the court erred in its judgment because it does not appear from its finding that the way was used for the requisite period, adversely to the defendant and his predecessors in title, and under a claim of right, nor is it found that it was not permissive. The court found that for more than twenty-one years prior to the time the defendant acquired his title to the land, D. J. Vance the predecessors in title of the plaintiffs, and his family, “in going to and from his farm and dwelling to the turnpike, and others going to and from said pike to Vances’, has passed over the lands of defendant, using a way or road through defendant’s farm as a foot-way, wagon-way, carriage-way, horse-back way and for hauliug produce to and from said Vance farm, without let or hindrance or obstruction” from the defendant’s predecessors in title. The plaintiffs’ claim is based on a title by prescription to the roadway, on the facts found. Easements of all kinds are said to lie in grant and not in livery; for the reason that, according to feudal ideas, they could not be created by livery, as livery would destroy the seizin of the owner of the land subject to the easement. But as a right to that which an individual has long used and enjoyed as his own without disturbance has ever been agreeable to a sense of natural justice, the courts of England at an early day adopted the fiction of a lost deed in support of easements that had been enjoyed by the owner of the dominant estate and those under whom he claimed, for a period beyond the memory of man. This was first fixed at a time beyond the reign of Richard I. But by reason of the remoteness of the period, the proof became more and more difficult — if not impossible; and finally the courts adopted a shorter period of twenty years, in analogy to the limitation in possessory actions. Still in this state of the law, as the title rested upon the presumption of a lost deed, the courts held that it might be rebutted, so that long- possession still continued subject to this contingency, and might be overthrown by a showing that it commenced and continued without deed. This however is no longer the general doctrine. Washburn on Easements, 4th Ed., 130-135; Railway Co. v. McFarlan, 43 N. J. L., 605; Tracy v. Atherton, 36 Vt., 503. Where an easement, as a way, is now shown to have been used by an owner of land over the land of another for the requisite period, without interruption with all the incidents of ownership, the fact of such use is accepted as conclusive proof of the right. The extent of the right is determined by the nature and extent of the use. It is said, ‘‘Every species of prescription by which property is acquired or lost is founded on the presumption that he who has had a quiet and uninterrupted ¡possession of anything for a long period of years is supposed to have a just right thereto, without which he could not have been suffered to continue so long’ in the enjoyment of it.” Brown’s Institute of the whole law, 418.

This is the principle of the civil law from which title by prescription is derived. It must not be confounded with usucaption, which simply, by the lapse of a short time, cured defects in titles otherwise good. Prescription was not regarded as a source of title, but as a means of defense against the assertion of an originally superior title, one that would have prevailed but for the consideration given -to long time possession. It would seem that this was made available by the magistrate so framing the formula as to confine the inquiry of the judge to the simple question of long time possession ; and this was done by writing- the limitation before the intentio, hence the significance of the term “prescription” which from its etymolog;y means a writing before. The prescription was inserted for the very purpose of excluding any other inquiry as to the rig’hts of the party claiming thereunder, than such as arose from long- possession of the land in the character of owner. Sander’s Justinian, Introd. Section 104; Hunter’s Roman Law, 288; Poste’s Gaius, 581.

But it is not material on which ground we regard a right to an easement by prescription rests, whether on that of a grant presumed from lapse of time, or from the justice and policy of protecting one who has long used and enjoyed a right in the character of owner, the practical result is the same: the party so using and enjoying the easement is adjudged as possessing the right in connection with his land as an incident thereto.

The substance then of a title, by prescription, whether it relate to the land or an easement in it, is the use and enjoyment of the land, or the easement, for the requsite period as an owner. No inquiry beyond this is required. The establishment of the claim, however, necessarily requires proof that the use was adverse to the real owner, and under a claim of right. Without such proof one could not be said to possess or use as an owner. Nor would the claim be consistent with a case where the possession is taken and held under the license or permisión of the real owner. But in the case of an easement it is not required that the use should be exclusive of the owner of the servient tenement. The latter may use a way in connection with the owner of the dominant tenement, as the two uses are consistent; and the owner of the servient tenement may maintain gates thereon where such was his custom during the period of prescription. The use made of the way and the mode of its enjoyment during this period, determines the extent of the right acquired and its limitations. Washburn on Easements, 135. These views are fully sustained by the authorities cited by counsel for the defendant in error.

In this case the finding shows that the use made of the way was adverse to the owner of the land. It prevented him from cultivating it as he might otherwise have done, or from making any use of it inconsistent with the right of way as used. It also appears that it was under a claim of right, as it was used without “let or hindrance” and “without asking leave. ” These circumstances are sufficient to show that it was under a claim of right. It is not necessary that it should have been made to appear that the party using the way, verbally asserted the right to do so when using it. This may appear from conduct as well as words ; using a way without asking’ leave imports a claim of right to do so. It may be stated as a general rule, that where a person uses a way in the enjoyment of his own land through the land of another, without let or hindrance, for the period of twenty-one years, in the absence of anything to the contrary, he thereby acquires a right by prescription to continue the use as an incident to his own land, and which will pass by a conveyance or descent of it. The fact of the use is open to explanation. It may be shown to have been permissive. But in such case the burthen is upon the owner of the land to show that the use was a permissive one. Garett v. Jackson, 20 Penna. St., 331; O'Daniel v. O'Daniel, 88 Ky., 185. If the rule were otherwise, the burthen of proof would be placed on the party holding the negative, which is seldom, if ever, done in civil suits; for it is easier to prove an affirmative than a negative. Such evidence may have been offered, but the court evidently found, in this regard, against the defendant, in finding that it was without “let.” The evidence is not incorporated in the record, and the finding must govern the disposition of the case.

Judgment affirmed.


author: Shauck, J.

text:
    Hartman v. Hunter, Treasurer.

      Stakite of limitations — Exemption from,a privilege of Sovereignty-Sections 1104 and 4891, Revised Statutes.

    1. Exemption from the operation of a statute limiting actions and in its terms containing no exception is a privilege.of sovereignty, and it can be asserted only by or on behalf of the sovereign.
    2. A civil action brought by the treasurer of a county under section 1104, Revised Statutes, to enforce assessments for the construction of township ditches, is, by the second clause of section 4891, Revised Statutes, barred in six years after the cause of action arises.
    (Decided March 30, 1897.)
    Error to the Circuit Court of Lucas county.
    Hunter, as treasurer of Lucas county, filed his petition in the court of common pleas against Hartman under section 1104 of the Revised Statutes, alleging that there stood charged upon the duplicate against the described lands of the defendant taxes and assessments theretofore duly levied amounting to $591.42; that they were unpaid, and praying for a decree to enforce the lieu for that amount and five per cent penalty thereon.
    Hartman answered, admitting that the sum alleged, composed of various items, stood charged against the premises, but alleging that certain specified items thereof, amounting to $337.62, were assessments for township ditches levied in the years 1885 and 1886, and pleading as to those items that the cause of action arose more than six years before the commencement of the action.
    In the court of common pleas a demurrer to this answer was sustained, and a judgment rendered for the plaintiff for $591.42 and interest and penalty.

      Hartman filed his petition in error in the circuit court, where the judgment of the common -pleas was reversed as to .the penalty and affirmed in all other respects.

      B. A. Hayes, for plaintiff in error.
    The action in this case was brought in accordance with and by authority of section 1104 of the Revised Statutes. In the case of Brenchweh v. DraJce, Treasurer, 31 Ohio St., 652, the court distinctly holds that there was no right of action for collection of taxes until the passage of the act of April 11, 1876, (73 Ohio Laws, 218), which is now section 1104 of the Revised Statutes. If, then, there was no such cause of action till the passage of that act, it would seem to follow that such cause of action was founded “upon a liability created by statute,” and therefore within the strict letter of the six year statute of limitations (R. S., 4981).
    The general question, whether the Statute of Limitations bars an action for the collection of taxes or assessments, has never been decided by this Court; three times the question has been presented, but in each case the Court based its decision on other grounds. These cases are: Reynolds v. Green, 27 Ohio St., 416; Brenchxoeh v. DraJce, Treasurer, 31 Ohio St., 652; Treasurer v. Martin, 50 Ohio St., 197; Los Angeles County v. Ballerino, 99 Cal., 593; San Francisco v, Tones, 20 Fed. Rep., 188; City of Louisville v. Johnson, 95 Ky., 254; State v. Lands inRedxoood county, 40 Minn., 512; PerJcins v. Dyer, 71 Md., 421.
    The Statute of Limitations is no longer viewed with disfavor. Toxonsend v. Eichelberger, 51 Ohio St., 213.

      The Statute of Limitations was a part of the Code of Civil Procedure, passed in 1853; section 1104, authorizing suit for taxes, was first enacted in 1876 (73 Ohio Laws, 218); so that the former antedates the latter twenty-three years at least.
    But this court held in Seymour v. Raihoay Company, 44 Ohio St., 12, that an action against a railroad company for failure to fence its road, whereby stock was killed on the right of way, was barred in in six years, notwithstanding the fact that section 3324 of the Revised Statutes, on which the action is based, was first enacted in .1859, Swan & Critehfield, 331, 56 Ohio Laws 62; see, also, 68 Ohio Laws 78, and 71 Ohio Laws 85, which are amendments of the original law at least six years after the passage of the Statute of Limitations.

      J. A. Barber, for defendant in error.
    It has been the uniform opinion, so far as I know, all over the State of Ohio, that we have no Statute of Limitations against taxes and assessments. It has been acquiesced in for a great many years that our general statutes of limitations do not apply to taxes and assessments. It was never thought of here, and no one ever raised the question until after the reported case of Treasurer v. Martin, 50 Ohio St., 197. In fact, it has never been raised here until this suit.
    The' force and authority of the uniform practical construction of any statute for a long- time is sometimes very strong and entitled to great weight. This proposition is too well known to need citations.
    The Supreme Court of the United States holds that a construction practiced and acquiesced under for a period of years fixes the construction, and the court will not shake or control it. Stuart v. Laird, 1 Craneh, 299; Deering’s Annotated Code and Statutes of California, volume 3, section 345.
    There is nothing involved in this case as to whether the Statute of Limitations is viewed with favor or disfavor. The question is, is there a Statute of Limitations? Such statutes, when enacted are “to be construed in the spirit of the enactment.”
    Section 4547 provides that the amount of costs and expenses of the construction of a ditch shall be placed upon the duplicate by the auditor “to be collected as other state and county taxes are collected. ”
    So also, section 4549 provides for the assessments for township ditches, “to be collected as other state and county taxes are collected.”
    It would seem to be the clear intention of the legislature that these taxes and assessments for ditches were to be of as high an order and grade of taxes as any other taxes and assessments. Certainly township ditches and county ditches in certain parts of our state are absolutely necessary, and essential to the existence of the township or county. There are no kinds of taxation that are intrinsically of greater merit than these for municipal, township and county improvements. Elliott v. Williamson, 11 Lee Tenn., 38.
   Shauck, J.

The limitation relied upon by the plaintiff in error is prescribed by section 4891 of the Revised Statutes, which provides that “an action upon a liability created by statute, other than a forfeiture or penalty, can only be brought within six years after the cause of action accrues. ”

Whether the liability asserted by the treasurer in this case be referred to section 1104 of the statutes, which authorizes the civil action to enforce the assessments for township ditches as well as other assessments and taxes, or to the provisions of the acts under whose favor the ditches were constructed, is a liability created by statute.

It is, however, contended that, although the liability is within the terms of the limitation, it is in view of the public character of the demandant, within that exemption from the operation of acts limiting actions which is defined by the familiar maxim ‘ ‘nullum tempus occurit regi. ’5 The scope of this exemption has been the subject of much discussion, and of diverse conclusions. It is not necessary, however, to enter into that discussion, since the repeated and consistent decisions of this court seem to furnish a clear rule for the determination of the case.

In Cincinnati v. The First Presbyterian Church, 8 Ohio, 299, it was decided that the statute of limitations runs against a municipal corporation. This case was followed and approved in Williams v. The Presbyterian Society, 1 Ohio St., 478, and in Cincinnati v. Evans, 5 Ohio St., 594.

In Lane v. Kennedy, 13 Ohio St., 42, it was conceded that the statute runs against the public with respect to highways, though the judgment was determined by the fact that the possession relied on was not adverse to the public. The case was followed and approved in McClelland v. Miller, 28 Ohio St., 488.

In Mount v. Lakeman, Clerk of Millcreeek Township, 21 Ohio St., 643, it was held that an action on behalf of a township to recover school funds which a treasurer had appropriated to his own use, is barred by the limitation of six years

In Oxford Township v. Columbia, 38 Ohio St., 87, it was held that “trustees of a township holding title to lands granted to them by the general government for school purposes, are not exempt from the operation of the statute of limitations, in an action prosecuted by them to recover possession of the premises.”

All attempts to extend the exemption to others than the general and state governments have failed. The terms of the statute except none from its operation and the exemption is a prerogative. ' Being a privilege of sovereignty, as in England it is the King’s plea, so here it is the plea of the sovereign, to be made by it or in its behalf. This view of the subject does not admit of further question in this state.

Judgment of the circuit and common pleas courts reversed. t