source: Caselaw Access Project

author: Bradbury, J.

license: Public Domain

text:
    State ex rel. v. Commissioners of Washington County.

      Report of county commissioners — Sufficiency of subjects of expenditure set forth.

      1. A report made to the court of common pleas by the county commissioners, of their financial transactions for the preceding year, under section 917, Revised Statutes, is sufficient if it sets forth the several immediate subjects of expenditure, and the sums paid on account of each, although it does not state specificially each item of the sums thus expended.
    2. Such report need not set forth the several subjects of expenditure where the funds provided by the county commissioners are set apart and expended under the direction of the board of infirmary directors, or the board of trustees of a children’s home. In such cases, it is sufficient to state in the report, the sums set aside for the use of said boards.
    (Decided June 22, 1897.)
    Error to the Circuit Court of Washington county.
    The plaintiff in error, filed in the court of common pleas, a petition in mandamus, to compel the board of county commissioners of Washington county, to file in said court, a detailed report in writing' of their financial transactions for the year preceding the third Monday of September, 1893.
    The court of common pleas awarded a peremptory writ of mandamus. From this judgment, the board of county commissioners appealed to the circuit court where they prevailed, that court dismissing the petition, at the costs of the relator. Whereupon the latter brought the record here for review on error.

      Elmtoood eft Smith and Eye eft Follett, for plaintiff in error.
   Bradbury, J.

The relator by an amended petition states that he is a citizen and resident taxpayer of the county of Washington, and state of Ohio, and also the editor, publisher and proprietor of a newspaper, printed in and.of general circulation throughout said county, and as such editor, publisher and proprietor, is entitled to publish said report when filed, and to receive the fees therefor provided by law; that the defendants are the board of county commissioners of said county, charged with the duty of making such report. That said board did not make and file such detailed report at the time prescribed by law, and still fails and refuses to make and file the same; and prays that a writ of mandamus may issue, requiring said board to make and file the same.

To this petition the commissioners filed an answer, in which they aver the making and filing of such a report as the law required, and setting forth a copy thereof, which is in the words and figures, following:

The undersigned, as required by section 917, Revised Statutes of Ohio, submit a report of our financial transactions for the year ending August 31, 1893.

The following levies were made upon each dollar of valuation of the taxable property upon the Grand Duplicate of Washington county, for the year A. D., 1893.

For general county fund............................... 2.40 mills.

For infirmary fund.............................................. 1.00 “

For children’s home fund...............................50 “

For bridge fund....................................................... 1.25 “

For special road fund........................................ 1.50 “

Annual financial exhibit of Washington county, Ohio, for the year ending August 31, 1893.

RECEIPTS.

Balance in the treasury, Sept. 1,1892... $63,838 10

Amount of tax duplicate, 1892................... 269,655 66

Amount of delinquent chattle, 1891..... 3,749 39

Amount of tax omissions and penalties, 30,751 34

Amount of unpaid liquor tax, 1892....... 6,000 00

Amount of liquor tax duplicate, 1893... 12,250 00

Amount of additions liquor tax duplicate, 1893 .......................................................... 1,569 95

Amount of common school funds received from state........................................ 20,938 50

Amount of section 16, interest received from state .......................................... 2,889 16

Amount of section 29, interest received from state.......................................... 619 84

Amount of school fund received from Athens county....................................................... 147 40

Amount of school fund received from Noble county................................................... 150 79

Amount of school fund received from Morgan county................................................... 84 91

Amount of school fund received from Monroe county................................................... 20 00

Amount of teachers’ institute fund, examination fees.............................................. 317 50

Amount of peddlers’ license fees........... 89 00

Amount of show license................................ 60 00

Amount of infirmary fund, sale of products .....................................-....................................:. 272 27

Amount of infirmary fund, support of inmates...................................................................... 230 14

Amount of fines and costs collected..... 2,924 30

Amount of ferry license................................... 22 00

Amount of property sold................................ $123 50

Amount of bridge fund, property sold 5 00

Amount of soldier’s relief fund............... 14 00

Amount of section 29, ministerial fund surrender of lease..........................:................ 283 84

Amount of redemption fund........................ 16 79

Amount of teachers’ institute fund, unexpended balance....................................... 23 54

Amount of county clerk’s fees.................. 939 -70

Amount of county treasurer’s fees..... 149 73

Amount .of cigarette duplicate................... 242 58

Total receipts...................................................... $418,378 93

DISBURSEMENTS.

Amount paid state treasury........................ $39,435 46

Amount unpaid tax returned delinquent ................................................................... 14,067 12

Amount refunders allowed.......................... 95 63

Amount ,tax remitted on delinquent duplicate................................................................. 625 00

Amount county treasurers’ fees, duplicate 1892........................................................ 167 77

Amount county treasurer’s fees miscellaneous collections ..i.............................. 39 73

Amount Jan. pub. delinquent tax list... 185 78

Amount refunders on liquor duplicate 561 57

Amount county orders redeemed 1892-93..................................................................................... 279,732 31

Amount road receipts........................................ 7,457 52

Amount unpaid liquor duplicate, 1893 6,125 00

Amount unpaid cigarette duplicate..... 150 00

$348,642 99

Bal. in treasury Sept. 1, 1893 $69,735 94

The following statement shows the condition of the several funds in the county treasury on the first day of September, 1893.

Redemption fund...............................................$73 54

Teachers’ institute fund................................... 214 60

Section 29, ministerial fund........................... 224 48

Soldiers’ relief fund..........:............................... 1,805 81

Dog tax fund............................................................ 2,936 03

County fund............................................................... 14,970 26

Infirmary fund........................................................ 17,035 43

Childrens’ home fund......................................... 1,457 12

Bridge fund................................................................. 11,023 71

Special road fund.................................................... 19,341 10

Tax omission fund................................................ 36 00

Monroe county fund........................................... 14 50

Belpre 1, separate school district fund............................................................................... 603 36

Total.............................................................................. $69,735 94

Countyorders were issued on the following funds during the year":

General county fund............................................ $20,565 42

Bridge fund.............................................................. 9,521 72

Infirmary fund......................................................... 14,362 06

Children’s home fund......................................... 8,051 58

Dog tax fund............................................................... 1,338 36

Special roads, fund.............................................. 19,419 16

Total............................................................................... $73,258 30

Detailed exibit of expenditures from the general county fund.

For J. A. Gage, per diem, mileage and expenses com.......................................................... $766 49

For S. S. Me Gee, per diem, mileage and expenses com........................................... 762 85

Por C. M. Grubb, per diem, mileage and expenses com........................................... $237 13

Por J. W. Thorniley, per diem, mileage and expenses com................................. 480 05

Por J. P. Briggs, per diem, infirmary director...................................................................... 288 00

Por E. R. O’Neal, per diem, infirmary director.................................................................... 337 00

Por G. W. Richards, per diem, infirmary director........................................................... 275 00

For D. S. Nye, per diem, city board equalization.......................................................... 63 00

Por J. P. Hovey, per diem, city board equalization............................................................ 63 00

Por D. P. Sayre, per diem, city board equalization .......................................................... 63 00

Por C. G. Pell, per diem, city board equalization............................................................ 63 00

Por T). P. Pugh, per diem, city board equalization........................................................... 63 00

Por Jacob Rech, per diem, city board equalization .................................. 63 00

Por D. H. Merrill, per diem, city board equalization......................................................... 45 00

Por costs in road views.................................... 381 75

Por brooms for court house........................ 3 00

Por cleaning vaults, court house.............. 12 00

Por white-washing court house and jail.................................................................................... 14 00

Por plumbing court house and jail........ 70 79

Por gas fitting’ court house and jail........ 79 95

Por hauling dirt.................................................. 1 60

Por cement floor, court house...................... 162 96

Por repairing pavement................................. 29 60

Por miscellaneous repairs, court house and jail...........................:...................... 411 13

For clothing prisoners.................................... $102 05

For compensation and damages, land for roads.................................................................. 880 83

For janitor and treasury watchman, court house.............................................................. 390 00

For burial indigent soldiers........................ 173 50

For county city funds...................................... 4 00

For salary prosecuting attorney.............. 1,005 44

For per cent, prosecuting attorney fines collected...................................................... 189 46

For printing road receipts................'.......... 10 00

For blanks, county auditor........................... 120 50

For blanks, sheriff............................................... 104 55

For blanks, treasury........................................... 79 90

For blanks, probate judge.............................. 489 75

For blanks, recorder.......................................... 130 29

For blanks, clerk................................................... 615 23

For blanks, prosecuting attorney........... 9 10

For recorder, indexing lots........................... 193 40

For costs criminal prosecution before J. P............................................................................... 333 14

For sheriff, prison board................................ 854 00

For sheriff, jail fees.............................................. 117 60

For sheriff j superintending prison labor............................................................................. 106 73

For sheriff, washing for prisoners........ 73 07

For sheriff, costs in criminal cases........ 73 47

For salary county auditor.............................. 2,799 40

For surveyor, platting records ............... 96 00

For freight and drayage, pub. documents ........................................................................... 5 40

For probate judge, allowance in criminal cases........................................................... 100 00

For probate judge, reported statistics 63 40

For probate judge, fees to let bail........... 60 73

For probate judge, app. school examiners................................................................. $ 2 03

For probate judge, transcribing index 49 20

For coal, court house and jail..................... 62 42

For clerk, miscellaneous fees................. 680 15

For clerk, criminal fees............................ 560 23

For allowance to military companies.. 354 44

For gas, court house and jail................ 374 61

For kindling for jail.................................... • 1 50

For telephone rent ...................................... - 50 00

For boarding juries.............................'......... 98 75

For posting sheriff’s proclamation........ 17 00

For postage and box rent, auditors ■ office................................................................. 27 20

For water rent, court house and jail..... 225 15

For washing bedding at jail........................... 6 00

. For duplicates..................................................... 100 00

For publishing times holding court..... 109 34

For publishing treasury examiners’ report.....................................................................' $292 60

For postage, prosecuting attorney........ 5 84

For postage, treasurer.................:......... 2 50

For boarding prisoners workhouse.... 29 60

For cleaning court house............................... 22 60

For assessor’s blanks................................. 50 00

For auditor’s fees, railroad appraisment..................................................................... 12 00

For publishing notices, assessors’ meeting.............................................................. 3 89

For recording births and deaths....... 97 36

For repairing pump, court house.......... 3 50

For assisting prosecuting attorney..... 20 00

Forelock,treasurer’s office.......................... 4 50

For printing tax receipts......................... 125 00

For recorder, indexing lease record..... 369 48,

For map of county........................................... 5 00

For defending indigent prisoners........ $75 00

For insurance, county buildings............ 326 00

For bedding for jail..................................... 4 25

For publishing commissioner’s report 224 21

For legal publications for court.............. 113 00

For furniture, court house......................... 172 84

For records for recorder.............................. 36 35

For street paving................................................. 730 17

For cleaning time lock................. 10 00

For medical attendance to prisoners..... 89 00

For costs work house cases..................... 34 77

For re-binding duplicates ................... 48 00

For stationery for stenographer and blanks....................................... 3 00

For stationery for surveyor....................... 3 10

For stationery for prosecuting attorney ............................................................................. 3 15

For subscription to newspapers and binding....................:............................................... 10 75

For supplies, court house and jail............ 152 69

For publishing rates of taxation............. 513 84

For publishing sheriff’s proclamation 212 95

For publishing notice to tax-payers..... 22 50

For hauling tile........................................................ 40

Total....................................................................... $20,565 42

Detailed exhibit of expenditures from the bridge fund for the year ending August 31, 1893:

For repairs dye culvert................................. 20 89

For repairs Shinn’s farm................................ 113 30

For repairs Pattin’s mills............................. 34 27

For turning Lowell draw............................... 92 00

For repairs Lowell draw.............................. 2 30

For painting Archer’s fork and draw, new bridge....................................................... 26 00

For repairs draw bridge................................ 5 00

For turning Beverly bridge and lighting.................................................................................... $250 00

For repairs Beverly bridge........................... 141 91

For removing pier Beverly bridge........ 96 20

For hanging lamp Beverly bridge.......... 17 01

For painting Beverly bridge....................... 27 28

For repairs Twin bridge................................... 46 27

For repairs Miller bridge.............................. 16 83

For turning upper Lowell bridge.............. 94 00

For repairs upper Lowell bridge-............... 1 00

For masonry Wilson’s bridge..................... 138 55

For masonry and fill Wilson’s bridge... 177 88

For building Wilson’s bridge..................... 397 00

For building Buzzard’s' run bridge........ 125 00

For masonry and fill Dye’s arch............... 923 25

For masonry Trotter’sbridg-e..................... 299 74

For building Trotter’s bridge...................... -290 00

For fill and repairs Trotter’s bridge..... 76 00

. For building Milbaugh’s bridge................ 95 00

For masonry Double-dajr arch..................... 498 01

For fill Double day-arch................-..................... 35 50

For repairs and lumber Barnes’ bridge ‘ 54 78'

For masonry Watertown bridge................ 257 69

For building Watertown bridge................ 184 20

For repairs Watertown bridge................... 15 50

For repairs Duck Creek bridge................ Ill 82

For repairs Briggs bridge.............................. 7 31

For repairs Coal Run bridge........................ 34 50

For lanterns Beverly and Lowell bridges................................................................ 81 95

For fill Dunbar bridge...................................... 10 00

For building Liberty township bridge 50 00

For building approach Lowell bridge... 439 00

For painting Lowell draw bridge.'.......... 25 00

For running ferry at Relief........................... 60 00

For running ferry at Ridgway’s................' $100 00

For painting Little Muskingum and Duck Or. bridges............................................... 75 00

For repairs Little Muskingum bridge 16 34

For repairs Scott Town bridge................ 12 75

For fill and masonry Dufer’s bridge..... 245 93

For repairs Crooked Creekbridge........... 62 75

For masonry Reynold’s bridge............... 470 28

For fill Reynold’s bridge................................ 20 00

For fill McClure’s bridge............................... 50 00

For repairs Bear Run and Newport bridge......................................................................... 31 19

For repairs and painting Newell’s Run bridge.............................................................. 156 24

For masonry Bear Run bridge..................... 144 81

For masonry Cole’s bridge.......................... 1,248 79

For approach Wilson’s Ford bridge....: 42 00

For masonry Sugar Run bridge................ 229 24

For repairs Sand Island bridge................ 152 20

For repairs Cornerville bridge............... ’ 33 03

For masonry Leget’s bridge..................... 478 57

For painting and repairs Little Hocking bridge.............................................................. 89 21

For painting and repairs Wolf Creek bridge......................................................................... 47 75

For bridge Harmar and Veto road.......... 98 00

For masonry Hart’s bridge......................... 100 00

For painting Moore’s bridge..................... 8 70

For masonry Lieth’s Run bridge.......... 25 00

For stone culverts................................................. 65 00

For bridge Watertown and Palmer road 49 00

For masonry White Water bridge........ 100 00

Total........................................................................ $9,521 72

Detailed statement of expenditure from the dog tax fund:

For claims for sheep killed and injured by dogs..................................................................... $1,259 16

For witness fees, mileage andblanks 79 70

Total.................................................................. $1,338 86

Orders were issued from special road fund, as follows:

Harmar and Watertown road...................... $1,763 05

Whipple and Lebanon road......................... 628 00

Pinchville and Liberty road.......................• 622 51

Watertown and Palmer road........................ 725 46

Warner and Duck Creek road.................... 577 40

Waterford and Palmer road......................... 1,203 65

Whipple and Dalzell road................................ 255 00

Dunbar and Brown’s Mills road................' 2,127 47

Plymoth and Little Hocking road........... 784 30

Barlow and Brown’s Mills road................ 1,445 59

Waterford and Salem road.............................. 232 90

Napier and Pattin’s Mills road................ 378 20

Newport and Bean road................................... 800 16

Little Muskingum road ..1................................ 1,580 42

Salem and Hoyt’s road...................................... 530 75

Harmar and Tunnel road................................. 242 00

Marietta and-Cay wood road....................... 363 00

Marietta and Newport road......................... 134 00

Sheets’ Run and Matamoras road........ 490 00

Watertown and Fleming road.................... 20 19

Archér’s Fork and Rea’s Run road........ 935 00

Marietta and Beverly road........................... 390 00

Rinard’s bridge and Yellow House road............................................................................... 397 50

• Vincent and Fleming road........................... 556 00.

Oliver road................................................................... 453 00

Dodds road.................................................................... 696 50

Paw Paw road............................................................ 15 00

Aurelius Township road.................................. 223 68

Wesley township road...................................■..... $194 50

McGrew road............................................................... 40 00

Waterford and Glencoe road......................... 129 21

Newport and Matamoras road................... 102 75

Fifteen road................................................................ • 9 00

Miscellaneous freight on tile, etc........... 295 08

Total............................................................................. $19,341 10

Detailed exhibit of expenditures from the children’s home fund, as shown by the report of the trustees:

Provisions.............................................................. $645 27

Groceries'....................................................................... 361 89

Drugs and medicines......................................... 8 05

Clothing.......................................................................... 33 80

Dry goods......................................:............................. 160 63

Boots, shoes, etc..................................................... 98 75

Laundry supplies.................................................. 35 23

Fuel and light........................................................... 288 75

Water plumbing............................................... 3 82

Postage and telegraphing.............................. 11 00

Books and stationary.......................................... 12 43

Expenses of farm and garden implements, feed, stock, labor, etc................ 326 85

Insurance...................................................................... 90 00

Furniture...................................................................... 79 29

Lumber.......................................................................... 19 59

Coffins............................................................................... 7 00

Transportations...................................................... 227 79

Miscellaneous........................................................... 89 9Ó

Salaries superintendent................................... 479 17

Salaries physician................................................... 125 00

Salaries matron....................................................... 225 00

Salaries teacher..................................................... 200 00

Employes.................................................................... 1,489 76

Building..................................................................... $2,715 03

Incidental................................................................... 317 58

Total............................................................................ $8,051 58

Detailed exhibit of expenditures from the infirmary fund, as shown by the report of the infirmary directors:

Superintendent and matron ......................... $600 00

Wages of employes ......................................... 804 00

Medical attendance............................................. 154 00

Groceries and provisions................................. 986 71

Fuel and lights...................................................... 174 -67

Clothing ............................................................... 91 22

Furniture................................................................... 64 45

Manure........................................................................ 183 43

Hardware................................................................... 219 35

Feed............................................................... 316 23

Repairs..........................’................................................. 125 00

Tiling................................................................................. 25 70

Other expenses....................................................... 2,615 52

Outside aid, supplies....................................... 5,190 43

Outside aid, physicians.................................. 2,812 36

Total.......................................................................... $14,362 06

Respectfully submitted,

J. A. Gage,

S. S. McGee,

C.- M. Grubb,

Commissioners Washington county, Ohio.

Auditor’s Office, Washington county, Marietta, O., October 25, 1893.

I certify that the foregoing statement gives a correct exhibit of the receipts and disbursements from the county treasury for the year ending August 31, 1893, and the itemized exhibit of expenditures for the children’s home and county infirmary are as shown by the reports of the officers of of those institutions, and that the foregoing statement is in compliance of law.

D. H. Merrill,

Auditor, Washington Co., O.

In making and filing the report of their financial transactions for the year preceding August 31,1893, in the form just recited, did the board of county commissioners comply with the requirements of section 917, Revised Statutes?

This statute, so far as it relates to the form or substance óf the report required of the county commissioners is in the following words: Sec. 917, “The county commissioners, annually, on or before the third Monday in September, shall make a detailed report in writing, to the court of common pleas, of the county, of their financial transactions during the year preceding the time of making such report. ” * * *

If, by requiring of the county commissioners an annual “detailed” report of their financial transactions, the general assembly intended that they should reduce their account to its ultimate analysis, then the account set forth by the commissions in their answer did not comply with the statute; for it is obvious that many, if not all of the items (so-called,) in this report, are made up of a large number of more minute items. For illustration, under the statement of expenditures from dog tax fund, only two items are found:

For claims for sheep killed by dogs..... $1,259 16

Witness fees, mileage and blanks........... 79 70

Total....'..................................................................... $1,338 86

A subsequent part of the record discloses that there were at least fifty-seven distinct claims paid on account of sheep killed or injured by dogs. Probably there were a number of others. If, however, the number was fifty-seven, only, as the statute requires each claim to be established by two witnesses, and as each witness would be entitled to a specific fee of fifty cents and mileage, and as the account reduced to its last analysis must state the fee and mileage separately, each sheep claim would require five distinct items, making for the fifty-seven claims, two hundred and seventy-five items, instead of two as stated in this report; requiring nearly as- much space for stating it and expense for its publication as will be necessary in respect of the entire report as made. This part of the report perhaps shows a greater condensation than any other portion of it; but an inspection of the whole statement, as reported, will clearly show that a reduction to its final analysis, would enlarge it many fold. In the more populous and wealthy counties, Hamilton and Cuyahoga for instance, the report would swell into an immense volume if thus extended, no one would be found patient enough to wade through the vast mass of detail, and each item would be lost in the multitude of its fellows,. It is, of course, within the power of the general assembly to require such minuteness as this in the report made by the commissioners, but unless the language chosen by that body imperatively demands such construction, the section should not, in our opinion, be so construed. Doubtless an account or report which gave the most minute circumstances of a transaction or resolved into its ultimate component parts every composite item, would properly fall within the definition of a detailed account or report; but the common acceptation of the term, as applied to the ordinary transactions of mankind, denotes also, a much less specific and extended sub-division of a transaction.

None of the lexicographers assign to this word “detail” such a fixed and unyielding sense, as to limit’’ its application to such transactions and accounts, only, as have been subjected to the most minute and extended sub-division or analysis of which they were susceptible, nor do we think the legislature used the word in the section under consideration in this narrow sense.

In the report under consideration, the county commissioners classified the several heads of expenditure, concisely and clearly, and, under its appropriate head, stated* separately, each particular subject of expenditure. In every instance, the- purpose to be attained by the money expended, was clearly shown. The report afforded the data necessary to enable the committee appointed, pursuant to the statutes, to intelligently examine it. It advised the tax-payers of the county, of the several subjects to which the public revenue had been devoted, and the amount expended upon each subject. And this we think, is all the statute requires.

We do not undertake to say, that all reports made under this section, should be modeled after this one. In fact we think the report before us, contains matters not properly pertaining to financial transactions of the county commissioners. For instance, while it might be very proper to state the amount of money received and the sources from which it came, no necessity appears for stating the rates of taxation levied for each fund. Nor are the expenditures made by the infirmary directors, and trustees of children’s homes, in any proper sense of the term, financial transactions of the county commissioners, on the contrary, they are transactions of the two former boards, because made under their direction. Though doubtless, setting aside funds for the use of those boards, is a financial transaction of the county commissioners, which should appear in their report, nor are we disposed to say that no discretion is vested in the county commissioners respecting the extent to which the report should go into details. This discretion, however should be restricted so as not to permit condensation to pass the limits that would lead to ambiguity. Each distinct subject of expenditure should be stated, together with the amount paid on account of it. On the other hand, the report should not be expanded into unnecessary minuteness of detail. The report under consideration is unobjectionable in respect to either of these two particulars, although, as we have seen, it stated matters that might have been omitted. No objection, however, was made to it on this account, and besides, the unnecessary matter is not so great as to increase the volume of the report to any considerable extent, and thereby lead to an unreasonable increase of the expense of its publication.

Judgment affirmed.


author: Spear, J.

text:
    McQuigg et al. v. Cullins.

      Public highways — Effect of order of vacation by township trustees— Injunction will lie against closing, when — Right of Easement.

    1. The order of vacation of a township road by the township trustees, in a proceeding conducted under chapter III, title 7, of the Revised Statutes, has the effect to relieve the public from any duty to keep such road in repair. But such ord'er does not authorize the closing up or obstructing of the road against the objection of one who has acquired an easement in it.
    2. Where, in such case, the trustees ' and others threaten to obstruct or close up such road, injunction will lie. And if it appear that such threatened action will destroy the easement of an owner of adjacent land in such road, and no other road reasonably suitable to meet the necessities of such owner has been provided, injunction forbidding such obstruction or closing up of such road will be granted.
    (Decided June 22, 1897.)
    Error to the Circuit Court of Muskingum county.
    Action for injunction by Cullins to restrain the trustees of Muskingum township, Muskingum county, and one J. W. Lane, from closing or obstructing a township road. Tried on appeal in the circuit court. Judgment for Cullins, sustaining demurrer to the answer, finding the allegations of plaintiffs’ petition to be true, and perpetually enjoining defendants from closing or obstructing the road.

      B: A. Poioelson, and Frcmh A. Durban, for plaintiffs in error.
    If the probate court had jurisdiction of the original appeal, that is jurisdiction to try and determine the controversy, and it seems to us clear that it had, the defendant in error having tried his case in that court he cannot use a bill in equity to per' form the office of a petition in error and thereby review in Another action the correctness of the holdings of the court in an action to which he was properly a party. Buchancm ,v. Baker et al. 35 Weekly Law Bulletin, 183.
    It is no objection to the road laws that the statutes do not give a trial by jury in the first instance, that is before the trustees. If that right is secured by appeal to the probate court the constitutional 'requirement is satisfied. Lamb v. Lane, 4 Ohio St., 167; Cramer v. Railroad, 5 Ohio St., 140; Reckner v. Werner, 22 Ohio St-., 275.
    Section 4697, as construed by the court in the case of Buchanan against Baker, secured to the defendant in error his right to appeal and to have his compensation assessed. If the defendant in error saw fit not to put in any claim for damages or compensation, he waived it. Anderson v. McKinney, 24 Ohio St., 467. But in this proceeding the conclusive presumption is that the probate court correctly decided the case when it was before it.
    Section 4683 provides for the right to appeal from the vacation of a township road in like manner as provided in chapter 4, and chapter 4 makes ample provision for the protection of all the rights of an appellant.

      Thomas J. McDermott, for defendant in error.
    Our contention is that the right to use this road was the private property of Cullins; that it could not be taken from him without compensation; that the statutes providing for the vacation of roads make no provisions for compensation; that none could be given by the trustees or by the probate court, and that, indeed, the object was not to deprive Cullins of the use of the road but to relieve the public of its burden.
    So far the claim is not made that Cullins’ right to use the road is not private property, but it seems to be assumed that there was something for the deprivation of which he might be entitled to compensation, but which he has in some manner lost. Jackson v. Jackson, 16 Ohio St., 168; Bingham v. Roane, 9 Ohio St., 165; Railroad v. Naylor, 2 Ohio St., 235; Parrot v. Railroad Co., 10 Ohio St., 624; ReForest v. Wheeler, 5 Ohio St., 286; Smith et alY. The Commissioners, 50 Ohio St., 628; LeClercq v. Gallipolis, 7 Ohio, 218; Crawford v. Reletoare, 7 Ohio St., 460; Roberts v. Easton, 19 Ohio St., 78; Me Comb v. Akron, 15 Ohio, 474.
    Now, if the statute furnish no remedy, injunction is the proper remedy. Hays v. Jones, 27 Ohio St., 218. The injunction prayed for in this case is not against the vacation of the road, but to restrain defendants from closing or obstructing it.
    The owner of this land has a right of free and unimpeded ingress and egress on this road to and from his property, a right of passage to and from the outside world, rights peculiar to himself.

      Transylvania University v. Lexington, No. 3 B. Mon., 25; Anderson v. Twrbeville, 6 Coldw., 150; Indianapolis v. Croas, 7 Ind., 9; Warren v. Mayor of Lynn City, 22 Iowa, 351.
    There must be a law provided for this compensation. Lamb v. Lane, 4 Ohio St., 167 ; Shaver v. Starrett, 4 Ohio St., 494; Watson's Executor v. Trustees of Pleasant Township, 21 Ohio St., 667.
    The defendant Cullins cannot be estopped by not putting in a claim for compensation and damages ; for there was no law providing for its payment, and so it would be a vain thing to do.
    There was no adjudication and no assessment of compensation and there was no opportunity to procure either. No re-trial is asked for, but it is original and independent relief that is sought and that cannot elsewhere be afforded.
    But upon other and additional grounds Cullins is not estopped from making this claim now. Roberts v. Easton, 19 Ohio St., 78 ; 31 Ohio St., 623; Cincinnati v. Combs et al., 16 Ohio, 181; Gargan v. Railway Co., 12 S. W., 259; 3 Ben Monroe, 25.
   Spear, J.

The petition shows, among other facts, that the defendant in error, Henry Cullins, is the owner of two farms situate in Muskingum county. At the time of his purchase, and for more than sixty years, a township road led from the smaller farm to a county road; and this township road ever after, continued to be the only means of access to the smaller farm which was a separate tenement with buildings and improvements of its own; and is the only road leading from this farm to any other road. A new road has been laid off across the land of said lane, but its use by Cullins is not convenient, nor is it practicable except by the expenditure of a large amount of money. Plaintiff purchased upon the faith that the township road would remain forever open, paid full price, would not have bought except upon the faith that the road would so remain open; and at a great expense, put up a stable and dug a well and erected certain out-buildings thereon, and built a kitchen as an addition to the dwelling-house thereon, and located said improvements close, convenient to and with reference to the township road, which is yet in fair condition for use, and for many years has been in use by plaintiff, his tenants, and others.

The answer, to which a general demurrer was sustained, shows, among other things, that prior to March 6, 1893, a petition was presented to the trustees, signed by Lane and fourteen other residents of the township, asking for the vacation of the road. Of this Cullins had notice, appeared at the hearing, but entered no objection to the petition, and filed no claim for compensation or damages. The ease was heard on the date above named, and the trustees being satisfied that no injustice would be done by the vacation, and that the road had become useless, made an order in due form vacating the road. From this order, Cullins, appealed to the probate court. That court. heard the case, confirmed the proceedings and judgment of the trustees, affirmed their order, and entered judgment against Cullins for costs. This judgment remains in force.

The question, therefore, is, whether or not the order of vacation by the trustees authorizes the closing up of the road as against the objection of Cullins? We think the question must be answered in the negative.

As heretofore stated, the road was legally established, and has been in existence over sixty years. It has been used by Cullins over thirty years. It was a public highway, made so by statute, and' Cullin’s rights in it were, and are, such as adjacent owners have in highways. His predecessor in title was one of those for whose benefit the road was established. Presumably he contributed to the expense of its establishment. By this means he acquired an easement in the road. De Forest v. Wheeler, 5 Ohio St., 286. Cullins, therefore, when he purchased the land, purchased this easement as an incident to his estate. It is in the nature of private property, for the taking of which there is no right in the public, except upon awarding compensation. And, under the constitution, article I, section 19, this compensation must be made before taking. In cases of vacation, no compensation has been provided. Chaptei III, title 7, of the Revised Statutes (section 4671 to 4686, inclusive), relates to the establishment, alteration and vacation of township roads. But neither by these sections, nor by related sections in the chapter preceding or following, is there any provision for ascertaining or awarding compensation to one whose easement would be destroyed by the closing up of a road ordered vacated. There is no fund provided for paying such compensation, nor method pointed out whereby such fund may be obtained, even if the amount were ascertained. A demand for compensation before the trustees or the probate court, would, therefore, have been an idle ceremony.

If the taking of the easement without compensation is attempted, injunction is the proper remedy. Hays v. Jones, 27 Ohio St., 218. Where, however, another road, reasonably suitable to answer the needs of the complaining party, has been established, the chancellor might properly refuse the order of “injunction against closing up the old road. But such reasonable provision has not been made in ‘this case.

The effect of the judgment of the trustees ordering the road vacated, is to relieve the public from any duty to keep it in repair, but it does not authorize the trustees, or anybody else, to close the road up, or obstruct it, and thus deprive Cullins of the right to travel it.

Judgment affirmed.


text:
    Pollock v. The Cleveland Ship Building Company.

      Riparian rights — Ownership to middle of river — Easement of navigation — Respective rights oj owner and public— Owner oj river bank entitled to injuncti07i, when.

    1. The ownership of a riparian proprietor to the middle of a navigable river does not carry with it the right to the exclusive use of the water over land ordinarily covered by water, but is subordinate to the paramount easement of navigation by the public, which includes the right to use such water for navigation and commerce, and such uses as may be reasonably incident thereto.
    2. Among the rights of the public is that of mooring Vessels for the purpose of repairs, and of putting in engine, boilers and machinery, after such vessels have been launched. Such use, reasonably enjoyed, is not a trespass upon the lands of a riparian owner, in front of whose river bank, outside of the dock line, such vessels are moored, and such owner will not be entitled to an injunction forbidding such use, unless special injury to his property is shown.
    3. But the right of the public does not extend to use of lands of the owner not covered by water. And where a builder of vessels so moored carries lines from them across the river bank of such riparian owner, against his objection, and fastens them upon the land of such builder, and insists upon the right to continue such acts, the riparian owner may be'entitled to an injunction, although his land is unimproved, and such acts produce no actual present damage.
    (Decided June 22, 1897.)
    Error to the Circuit Court of Cuyahoga county.
    The action below was by Pollock against the Ship Building Company for damages for alleged trespasses upon the property of the plaintiff, and' for a perpetual injunction against further trespasses. Upon the trial in the common pleas, that court found that plaintiff’s damages were nominal only, but, finding that he had a right to injunction, entered judgment granting perpetual injunction. On appeal, the circuit court found for the defendant, and dismissed the petition. Plaintiff asks reversal. Pacts are stated in the circuit court’s findings, substantially which are reproduced in the opinion.

      I-Ioyt, Dustin <& Kelley, for plaintiff in error.
    Pollock’s ownership of the bank of the Cuyahoga river and the bed of the stream, to the center thereof gives him the sole right therein, subject only to the easement of navigation reserved to the public. Gavit v. Chambers, 3 Ohio, 497. This doctrine was reaffirmed in.: Benners Lessee v. Fletter, 6 Ohio, 509; Lamb v. Ricketts, 11 Ohio, 316; Walker v. Public Works, 16 Ohio, 544; June v. Purcell, 36 Ohio St., 405.
    The ownership in the land, the bank and the bed of the river, is absolute. The ownership of the water is usufructory, not absolute.
    Water courses, at common law, were separated into three classes:
    1. Private water courses. Where they were in fact not navigable. Here, the riparian proprietor owns the water course absolutely and any person going upon the water for any purpose, in a row boat or otherwise, is an trespasser. Such riparian proprietor cannot, of course, interfere with the water unreasonably, nor prevent its following its usual and ordinary course down stream.
    2. Quasi-public water courses. Under this classification come those streams which have no ebb and flow of the tide, but nevertheless are of sufficient depth for floatage or boating. The bed of the stream is the subject of private ownership. The right of the public is limited.
    Angelí on Water Courses, 6th ed., section 545.
    3. Water courses wholly public. Here, the public, or state, or king, owns the bed of the water course. “Both the use and the property are public.” Such water courses “partake of the sea.” Angelí on Water Courses, 6th ed., sections 535 to 545. Middleton v. Prichard, 3 Scammon, 510; Ilardin v. Jordan, 140 U. S. ,371.
    Under the decisions in Ohio, the navigable rivers of Ohio come within the second class; (See the above cases cited from the 33 Ohio, 6 Ohio, 11 Ohio, 16 Ohio, and 36 Ohio St.), while the great lakes come within the third class. Sloan v. Biemiller, 34 Ohio St., 512. Angelí on Water Courses, section 61-65.
    The Cuyahoga river, comes within the second classification. Angelí on Water Courses, section 641a.
    The public use is limited to the right of passage. Varick v. Smith, 5 Paige, 137; Commissioners v. Kempshall, 26 Wend., 404. It follows, necessarily, that the common-law estate or easement of navigation is limi bed to navigation. Lembeck v. Nye, 47 Ohio St., 348.
    The defendants, the Cleveland Ship Building Company, was. and is a trespasser upon the exclusive rights of Pollock, when it builds and repairs ships, using for that purpose the part of the Cuyahoga river covering Pollock’s land, as .the Ship Building Company is not then using “the water within the channel for the purposes of navigation, ” but is using it in its manufacturing business. The defendant is a manufacturing corporation. It may be proper to consider the term “navigation,” and what is included within it. 16 Am. and. Eng. Enc. of Law, 272, Joshua Leviness, 9 Bene., 339.
    The building of ships is in no sense navigation. Thus, it is held that contracts to build, ships are not even maritime contracts. People's Ferry Go v, Bern's, 20 How., 393; Roach v. Chapman, 22 How., 129 ; Edxoards v. Elliot, 21 Wall., 554.
    Nor are contracts to repair or furnish supplies to a vessel at her home port maritime contracts. The Edith, 94 U. S., 518.
    It will hardly be claimed that the defendant is in any sense engaged in navigation. Wall v. Harbor Co., 152 Pa. St., 427.
    It' seems too clear for argument, that the defendant cannot claim a right in the Cuyahoga river in excess of the right reserved to the public. When it transcends that right, it is necessarily appropriating some right of property which belongs to Pollock, and necessarily becomes a tresspasser. Giauque on The. Law of Roads, Ditches, etc., pp. 503, 519, 520. Cooley on Torts, 318.
    Defendant, being a tresspasser, it is wholly immaterial that it does no substantial injury to plaintiff, and it is wholly immaterial that plaintiff is making no use of his own property. Tootle v. Clifton, 22 Ohio St., 253; Webb v. Portland Mfg. Co., 3 Sumner; Cooley on Torts, pp. 62-67 and notes. Stoioell v. Lincoln, 11 Gray, 434; Robbins v. Borman, 1 Pick, 122.
    The proper remedy of Pollock was an injunction. Pomeroy’s Equity Jurisprudence, 2nd ed., sections 252, 257 and 271; Johnson v. City of Rochester, 13 Hun., 285; Lyon v. McLaughlin, 32 Vt., 423.

      To say that Pollock owns the bank of the river and bed thereof tó the center, subject only to the easement of navigation in the general public, and yet hold that he cannot control the use of his property for purposes other than navigation, is to'destroy his private property right altogether. Gould on Waters, Sections 121, 128, 547; Lyon v. Fishmonger Co., 1 Ap. Cases, 670.
    The right to anchor in midstream temporarily, which is one of the incidents of navigation, gives no right to trespass on the banks of the river. Phifer v. Cox, 21 Ohio St., 255.
    Twenty-one years usage of this private right of Pollock’s by the Ship Building Company 4or manufacturing purposes would ripen into an absolute estate. Washburn on Easements and Servitudes, p. 10; Bead v. Leeds, 19 Conn., 182.

      Ooulder & Holding, for defendant in error.
    The common law made the ebb and flow of the tide the test of navigability. Such waters and the lands they covered were incapable of private occupation, cultivation or improvement; and their natural and primary uses were public as highways for navigation and commerce. The title to the lands was in the Sovereign, and the dominion thereof was vested in him as the representative of the nation for the public benefit. Gavit v, Chambers, 3 Ohio, 496; Blanchard v. Porter, 11 Ohio, 138; Lamb v. Pickett, 11 Ohio, 311.
    As to legislation concerning admiralty jurisdiction over non-tidal waters, see 38 Ohio Law, 34; 5 U. S. Statue at Large, 726; The Propeller Genesee Chief v. Fitzhugh, 12 How., 443.
    This distinction no longer exists. Gould Law of Waters, section 67; Parker v. Bird, 137 U.-S-, 667.

      The Cuyahoga river at the point in question forms part of the Harbor of Cleveland, and is a public, navigable river — not quasi public, as stated in brief of plaintiff in error. The Daniel Ball, 10 Wall., 563; The Montello, 11 Wall., 411; Ex Parle Boyer, 109 U. S., 629; H. S., v. Perry Co., 21 Fed., 331.
    What property has plaintiff in the waters of a public navigable river of the United States ? Barmy v. Keokuk, 94 U. S. 338.
    It may be conceded, therefore, that the plaintiff has title in the bed of the river, the State of Ohio having resigned it to him, “the common law doctrine having been incorporated into the jurisprudence of this state at so early a day, and having been regarded as a rule of property.” June v. Purcell, 36 Ohio St., 407.
    No question as to the extent of the right of the public to use the navigable waters of the state was involved in any of the Ohio cases.
    The water of a stream (navigable) is not the subject of ownership in the ordinary sense of the word. Fulmer v, Williams, 122 Penn. St., 191; Lancey v. Clifford, 54 Me., 489.
    He has no property in the water itself, but a simple usufruct. Weiss v. O. I. <& S. Co., 13 Ore., 496; Scranton v. Wheeler, 57 Fed., 803; I. C. B. B. v. Illinois, 146 U. S. 453; Hardin v. Jordan, 140 U. S., 382; Shively v. Botolby, 152 U. S., 47.
    The character of the ownership of a riparian proprietor in lands forming the bed'of the river is no greater than that of the State. B. B. v. Platt, 53 Ohio St., 267; Stockton v. B. & N. T. B. B., 32 Fed., 20.
    Nor in the bed itself can the absolute rights of ownership be exercised by the possessor of the title. Prosser v. N. P. II. R., 152 U. S., 64; Gould on Waters, section 140; Hawkins Point Lighthouse Case, 39 Fed., 77.
    And the current may be changed without any right of damages to the owner. Mills v. U. 8. 46 Fed., 738; Harbor Co. v. Bridge Co., 23 W. L. B., 35; City of Mobile v. Eslava, 16 Pet., 255; Steamship Co. v. Commissioners, 18 Fed., 11; Gilman v. Philadelphia, 3 Wall., 724.
    It is true, as is held in Gibbons v. Ogden, 9 Wheat., 217; that navigation is necessarily in volved in mark time commerce, but commerce implies more than mere navigation. Bice v. Buddiman, 10 Mich., 140; Hagg v. Beerman, 41 Ohio St., 97.
    The defendant has the right to use this public highway for purposes of travel (navigation) and commerce.
    Commerce in its broadest acceptation does not embrace merely traffic, but means and veehicles by which it is prosecuted. VeazieY. Moor, 14 How., 573; Eliza Ladd, 3 Sawy., 520.
    It is self-evident that as vessels are the instruments of navigation, anything done in and about the construction or repair of these instruments is incidental to navigation, because without this construction and repair, navigation cannot be prosecuted. Gann v. Free Fishers, 11 H. L. C., 192.
    If a vessel have the right to anchor, she has the right to tie up at a dock for such purposes as are incident to her navigation. Collieries Company v. Gibb, L. R. 5., Ch., Div., 713. The Hureules, 28 Fed., 477.
    Loading and unloading are incident to navigation, but not more so than repairing. Sherlock v. Brainbridge, 41 Ind., 45. Hayward v. Knapp, 23 Minn., 433; Davis v. Winslow, 51 Me., 297 ; People
      v. Horton, 64 N. Y., 619; Benedict on Admiralty, section 2.
    Under the decision of 36 Ohio St., 423, plaintiff would have no right to maintain an action of trespass.
    The finding of the court is that there was no injury of any nature to the plaintiff, and we have seen that these waters were public waters and •there was no trespass.
    It is not in all cases of trespass that equity will interfere to restrain the trespasser. High on Injunctions, sections 697, 701; Bigeloio v. Bridge Co., 14 Conn., 579; Thorn v. Sxoeeney, 12 Nev., 259; Coed Co. v. Mellon, 152 Pa. St., 286; Ulbricht v. Water Co., 86 Ala., 587.
    The plaintiff is not entitled to an injunction without special damage. It is conceded that these vessels attached to defendant’s dock lay in the channel of the river, outside of the dock line.
    No special damage can be inferred from proximity to the obstruction. Gaslight Co. v. Barker, 36 How. Pr., 233; Seeley v. Bishop, 19 Conn., 128; Clark v. Saybrooke, 21 Conn., 313; The People v. Vanderbilt, 26 N. Y., 287.
    Even where a person has a dock, unless he be denied access thereto and suffers special damage, he would not be entitled to an injunction. Farrelly v. Cincinnati, 2 Disney, 516; Phifer v. Cox, 21 Ohio St., 248.
    The distinction is marked. In a navigable river the riparian owner only has the fee in the bed of the river, a mere easement in the water. The paramount rig’ht to use is in the public. Coal Co. v. C. By., 24 W. L. B., 172.
   Spear, J.

Being requested to separately state its finding of fact and conclusions of law, the circuit .court after finding that the plaintiff was the owner of the premises described in the petition in such sense as to authorize him to maintain the action, proceeded:

‘•'■Third —Said premises are on the west side of the Cuyahoga river, and plaintiff’s title in the land in the bed of the Cuyahoa river extends to the center thereof.
“Fourth — The Cuyahoga river passes through the city of Cleveland, Cuyahoga county, Ohio, and forms a part of what is known as the harbor of Cleveland, and empties into Lake Erie, and is navigable at the place it flows by said premises, and for a long distance up and down stream, and is used by vessels of all kinds navigating the great lakes and tributary waters.
“Fifth — Pollock’s property is unimproved, having no dock or wharf thereon, and neither at the time of the commencement of this action nor since, nor at the present time, is said Pollock making any use of his property.
“Sixth — The defendant owns over seven hundred feet of land along the river, contiguous to the property of the plaintiff and north thereof, and said defendant’s said property has a dock along the whole front upon the said river, and its property has, since 1887, been used for the purpose of building and repairing vessels of all kinds:
“Seventh — The defendant has erected on its own property, within a few feet of the boundary line between its property and the plaintiff’s a derrick, for the purpose of lifting steam boilers and machinery upon vessels which it is engaged in building and repairing, and has also sometimes used, said derrick for hoisting machinery into vessels for transportation.
“Eighth — The derrick is so located, that when defendant makes use of its derrick for the purpose aforesaid, vessels must lie in the river outside of the established dock line, in front of defendant’s property and extending in front of the river bank of plaintiff, for a distance of twenty-five to seventy-five feet, and on the west side of the center line of the said river.
“Ninth — -That when said vessels are so moored as to permit defendant to use its derrick, it has at times carried lines from the portion of said vessel immediately in front of plaintiff’s river bank, across the water and across a small portion of the river bank of plaintiff, and tied them to posts or piles driven upon defendant’s land.
“Tenth — That at the time this suit was brought a vessel was lying in the manner hereinbefore stated, and continued there for some time thereafter, and various vessels and steamboats have, by the defendant, been placed there since the commencement of this action and the defendant intends to continue, when required by its business, to make use of its derrick in the manner indicated, and to cause and permit steamboats and other water craft to lie in the river over-lapping plaintiff’s water front as hereinbefore found, and to cause and permit lines to be fastened in the manner above stated, to steamboats and other water craft while being repaired, and that it has in its shipbuilding yard today, two vessels, one of which it will launch at a very early date, and another of which it will launch in a few month’s time, into which it proposes to put engines and other machinery by using the derrick above mentioned, and for that purpose, proposes to float and tie theboats in the way indicated.
“Eleventh — Plaintiff has repeatedly notified defendant to cease tying the boats in the manner above indicated, and notified defendant not to put boats in front of his property in the Cuyahoga river, which notice the defendant has not, and does not propose to observe, so long as no other use is made of plaintiff’s said premises than has heretofore been made.
Twelfth — The plaintiff has not suffered any damage by reason of the acts of the defendant.
“The court finds as follows, as conclusions of law: That a court of equity will not restrain or limit the use of a navigable river by the owners of land upon its banks, engaged in carrying on a legitimate business, upon the petition of a private person who has not suffered special damage, other than that sustained by the general public.
“Wherefore, the petition for injunction herein is dismissed at the plaintiff’s costs, and it is considered and adjudged that said defendant recover of said plaintiff its costs herein.”

The inquiry presents two questions: 1. Were the acts of the company in mooring vessels in front of plaintiff’s land for the purpose of repairs to old vessels and of putting in boilers, engines and machinery in new vessels, trespasses? 2. Were its acts in carrying lines across the river bank of plaintiff, trespasses for which injunction will lie?

The right of ownership to the center of the stream by one owning land abutting on a navigable river, is not in dispute. It was declared by this court in Gavit v. Chambers, 3 Ohio, 497, that: “He who owns the lands upon both banks, owns the entire river, subject only to the easement of navigation, and he who owns the land upon one bank only, owns to the middle of the river, subject to this same easement.”

And this principle has. been reaffirmed in Walker v. Public Works, 16 Ohio, 544, in June v. Purcell, 36 Ohio St., 405, and in many other cases. This does not, however, mean that the ownership is an unqualified one, for it is universally conceded that the water of a stream is not the subject of ownership in the ordinary sense. As expressed in Lancy v. Clifford, 54 Me., 487: “The right of property is in the right to use its flow, and not in the specific water.” That is, it is but a usufructory right, a right to enjoy that which belongs to another, and to draw from it all the advantage it will produce without wasting its substance. That other, as to the water of a navigable stream, is the public, for, in Ohio, it -is established law, that navigable rivers are public highways. As tersely put by Birchard, C. J., in Walker v. Public Works, supra: “The right of the adjacent proprietor to the water of the stream, is a usufructory right, appurtenant to the freehold, not an absolute property.” Adding that he may use the water “in any way not inconsistent with the public easement, or of private rights.” This limitation is recognized when it is declared, as by Mr. Justice Gray, in Prosser v. R’d. Co., 152 U. S., 59, that “there can be no doubt that a state may, by its legislature, or through a board of harbor commissioners, establish, for the protection of commerce and navigation ■ harbor lines, in navigable waters, not inconsistent with any legislation of congress, limiting the building of wharves and other structures upon lands not already built upon.” And the right is enforced in this state by chapter 14, title 12, of the Revised Statutes, which authorizes municipal councils to establish dock lines and regulate the use of the same within corporate limits. The principle clearly deducible is, that as to navigable rivers, the private right of the riparian owner to the land, ordinarily covered by water, is in all cases subordinate to the paramount public right of navigation, and its incidents. The converse is expressed by Christiancy, J., in Rice v. Rudiman, 10 Mich,, 125, thus: “In other words, all the private or individual use and enjoyment of which the land is susceptible, subordinate to, ana consistent with, the public right, belong to the riparian owner as against any other person seeking to appropriate it to his individual use.”

We now inquire: Was the mooring of boats by the company in the part of the water of the river which is over plaintiff’s land, for the purpose of repairing or completing such vessels, the pursuit of a strictly private manufacturing business thereon, as is’ claimed by plaintiff? Or, was it but an incident of navigation and commerce, as claimed by defendant? If the latter, the judgment of the circuit court is rigid in this particular, and as to this should be affirmed; if the former, the judgment is wrong and should be reversed, for whatever may be the rule elsewhere, in Ohio it is established that repeated acts of trespass which in time would ripen into a prescriptive right, although the damage for each trespass is but nominal, will entitle the aggrieved party to an injune- • tion. And it seems to be also established that the owner of the fee of a highway may have trespass founded upon his possession, against a stranger, for any acts of trespass committed upon it, not justified or excused under the public right, and if he neglects to sue, but submits, adverse possession under claim of right would in time ripen into a prescriptive right. Having the exclusive seizin and possession of the soil of the highway, subject only to the easement of the public, he may lose his right of seizin and possession by being deprived and barred by the statute of limitations. Tootle v. Clifton, 22 Ohio St., 247; Washburn on E. & S. 10; Reed v. Leeds, 19 Conn., 182.

This brings us to the inquiry as to what is fairly embraced within the meaning of the term, “easement of navigation.” One dictionary meaning of navigation is “the science or act of conducting a ship from one place to another,” and this definition is quoted by plaintiff’s counsel as applying here. Another definition is: “The science or art of ascertaining the position and directing the course of vessels, especially at sea by astronomical observations or calculations; nautical science or art.” Still another is, “shipping,” which would embrace, the conduct of ships generally. Clearly the term “easement of navigation,” should not be construed in any narrow, scientific sense, but, having in. mind that the reservation of the easement by the state is for the benefit of the public in its use of the highway, should receive a construction in harmony with the nature of the uses of the water by the public, and the objects of a public nature to be accomplished by such uses. Those objects relate to trade and commerce, which is the interchange of goods or products between nations or individuals by means of transportation; or, as applied to commerce on the water, by means of navigation. ‘ ‘Commerce, ’ ’ says Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat, 1, “is traffic, but it is something more; it is intercourse.” Commerce, then, is the object; navigation the instrument or incident. In other words, navigation is the means by which commerce is accomplished, and it is for the purpose of aiding commerce that navigation is encouraged and protected. When the-term “easement of navigation” is used, therefore, it carries with it the idea of navigation for the purposes above expressed; so that, whatever relates to commerce, or is incident to it, is embraced in the term. This enlarged meaning is implied in the language of McIlvaine, J., in State v. Shannon, 36 Ohio St., 423, where he observes: “True, navigable streams, in this state, are declared to be public highways; but the right to use a public highway is not abridged by protecting the owner of the fee in the exclusive right of killing game therein. Travel and commerce are not thereby hindered.” And has entered into the structure of our navigation laws, whereby regulations are established defining the nationality of ships, the privileges to which they have claim, as well as generally the conditions regulating their movements. To confine the easement to the mere conducting of ships from one place to another, would materially limit the beneficial right of the public. This brings within the scope of the easement the vessels themselves, for, as said by Mr. Justice Clifford, in Sweatt v. R'd. Co., 3 Cliff., 339. “The word commerce includes navigation as well as traffic, and the power to regulate extends to the vehicles of intercourse as well as to the commodities to be exchanged.” And by Mr. Justice Fields, in Steamship Co. v. Commissioners, 18 Fed., 11: “It (commerce) embraces navigation, and extends to all the instruments used in navigating inland waters and the ocean.”

So that, control over commerce implies control, in a general sense, over the means and vehicles by which it is accomplished, and necessarily the privileges of commerce extend to such vehicles. Coming to the matter of repairs, we find that the contract for work and material so employed, is a maritime contract. The St. Lawrence, 1 Black, 522; Peyroux v. Howard, 7 Pet., 324. Vessels cannot be operated or moved without getting out of repair, and hence stopping for repairs becomes one of the incidents of their use. It would not be reasonable, from the stand-point either of expense or convenience, to compel such vessels to seek a slip or a dry dock on every occasion when repairs are needed, at least, when such repairs can be made without interference with other craft plying the same waters, and without injury to riparian owners. It follows from the foregoing, that the use made by defendant of the waters of Cuyahoga river, for the repair of vessels, was an incident to the right of navigation and commerce, and hence a public use, and a proper use.

The question of the right to moor vessels in front of plaintiff’s property, outside the dock line, while the machinery was being put in, presents greater difficulties. The point is thought to turn upon whether or not an independent contract for putting in such machinery would be a maritime contract. “A ship,” says Mr. Benedict, in his work on Admiralty, section 215, “is a locomotive machine adapted to transportation over rivers, seas and oceans.” In this sense, the vessels moored by defendant, awaiting engines and boilers, were ships. They were machines upon the water, would float, and were capable of being-moved and propelled on the water, and were so floating on the water, and intended as aid to commerce. The same author, (section 213), observes: “It is believed that a sure guide, in matters of contract, is to be found in the relation which the cause of action has to a ship, the great agent of maritime enterprise, and to the seas as a highway of commerce. Where there is navigable water, and ships and vessels, there are the subjects of maritime law.” This author is of opinion that* by the general maritime law of the world, a contract to build a ship is a maritime contract. On the other hand, the Supreme Court of the United States, in Ferryboat v. Beers, 20 How., 393, and in Roach v. Chapman, 22 How., 129, has held that a contract to build a ship is not a maritime one. But these cases related to construction while upon the land. In the former case, (which is the authority for the holding in the latter), it is observed that: “The contract is simply for building the hull of a ship, and delivering it on the water. * * * So far from the contract being purely maritime, and touching rights and duties pertaining to navigation (on the ocean or elsewhere), it was a contract made on land, tobe performed on land.” These cases could hardly be accepted as authority for the proposition, that a contract to supply engine and boilers for a vessel already launched, and awaiting only the putting in of the propelling power, was not a maritime contract in the sense that identifies such contract with navigation and commerce. A late case, The Eliza Ladd, 3 Sawy., 520 (U. S. D. C.,) bears directly upon the point. The claim of the libellant was, to enforce his lien for engine, boilers and machinery, put in after the vessel was launched. After reviewing the foregoing and other authorities, the court remarks: “And yet a contract to build a steam ferry or tug boat outright would not be, under the decisions cited, a maritime contract. My own impression is, that any contract made to equip, fit or furnish, a vessel after she is launched and afloat, is a maritime contract. It is not, in the language of 20 Howard, supra, ‘a contract made on land, to be performed on land,’ but. one made with reference to a ship already in existence and floating upon the elements for which she was originally designed. Such a contract is to be performed on water as much as an ordinary contract of affreightment or repairs.” And speaking of the construction of a ship: “Separate pieces of timber or iron, or both, being put together in a certain form, so as to float upon the water and transport or bear up freight or passengers, may become a ship. At what a point of time is this change accomplished? I am inclined to think that the correct answer to this question is suggested in the brief of the libellant, and that it is ‘at the moment when she leaves the ways, and her keel strikes the element for which she was originally designed. ’ That is the moment of her birth as a ship, and the occasion when a name is usually bestowed upon her. Thereafter all contracts to equip, furnish or repair this machine have direct reference to a vessel in esse, with a eapaeitv for locomotion and transportation on navigable waters, and are, therefore, maritime. ” * * * “It seems safe to say, that a contract made after a vessel is launched and afloat, to furnish her with particular means of propulsion, as sails, or steam paddles, or to change the mode of her propulsion, is a maritime contract. Certainly it is not a contract to be performed on land; neither is it a contract to build any more than any contract for repairs.”

Many authorities cited at the argument have been examined, which we do not deem it necessary to refer to. They are not in entire harmony. Those readers who care to pursue the subject in extenso, will find the cases cited in the briefs,* and will find themselves well repaid by a persual'of the able and interesting arguments of the respective counsel.

Without taking space for general discussion, our conclusion is, that the work of placing engine and boilers to the vessels of the defendant, as they lay moored partly in front of plaintiff’s land, whether done by an independent contractor, or by the defendant itself, was a maritime purpose, an incident to navigation and commerce which the defendant, as one of the public, had the right to pursue in the legitimate use of the highway, so long as such use did not unreasonably impede navigation. The mooring of vessel^ there, though they did overlap in front of plaintiff’s land, did not constitute trespasses, and the plaintiff, under the facts found, has no standing in a court of equity to enjoin such use. There was, therefore, no error in the refusal of the circuit court to allow an injunction as to this, the main branch of the case.

2. The carrying of lines across the river bank of plaintiff, presents a wholly different question Those acts invaded the real property of plaintiff the title to which is not qualified by any right in the public; it is absolute. It was the judgment of the circuit court that such acts resulted in no real damage to plaintiff, and that bv reason of the record in this case, their repetition, no matter for what duration, of time, could not ripen into a right by prescription, and hence plaintiff was not entitled to any relief.

We are unable to agree with this conclusion. The acts complained of were trespasses. It is by no means clear, that they would not, if pursued long’ enough, grow into a prescriptive right. It isn’t necessary to ascertain this with positiveness. It is enough that if there be any doubt, the risk should not be imposed upon the plaintiff. And it is no. hardship upon defendant to say that if it needs to use plaintiff’s land it can do as other people do in like circumstances — obtain a right to such use by negotiation. The very fact that the trespasses are in themselves trifling, and the damage, if any, so small that suits at law to recover would be impracticable, affords an additional reason for granting an injunction.

As to this ground of complaint the judgment of the circuit court will be reversed, and judgment entered for plaintiff in error.

Judgment reversed.