text:
    Hawver v. Whalen, et al.

      Negligence — Excavation in Public Sidewalk — Liability of lot owner, when injury occurs through negligence of independent contractor.

    1. Where the owners of a city lot, in the course of constructing thereon a building abutting on a street, make, by their own employees, an excavation in the adjacent sidewalk for coal vaults and an area to be used in connection with the building, a duty 1 devolves upon them to guard it with ordinary care, and this duty is not shifted from them by letting the work of building the area walls and constructing the coal vaults to an independent contractor, who is to furnish all the material as well as perform the labor necessary therefor.

      2. In such case if the excavation is not guarded, or covered, with ordinary care, one who, without fault on his part, falls into it and is injured, may maintain an action against the owner of the premises, to recover damages therefor, although the defective covering had been put over it by the contractor or his servants.
    (Decided February 2, 1892.)
    ERROR to the Circuit Court of Cuyahoga county.
    The plaintiff in error brought an action in the Court of Common Pleas of Cuyahoga county to recover damages for an injury that he received in consequence of having fallen into an area of a building then in the course of construction by the defendants in error in the city of Cleveland.
    He averred in his petition, “That said defendants took up and removed said sidewalk in front of said premises, and built therein coal vaults and a private passageway, and then relaid said walk in part, leaving openings therein some twelve feet long and four feet wide and some nine or ten feet deep; ” * * * * and “covered said openings over with old and loose boards entirely insufficient to protect and make safe public travel upon said sidewalk, and said places were left by said defendants without proper protection and without any light or signal to indicate danger,” * * * * and “that the plaintiff * * * was lawfully traveling on and along said sidewalk * * * without fault or negligence on his part, he stepped upon one of said boards * * * when the same gave way and precipitated him into said excavation, whereby * * * his ankle was dislocated and his leg broken,” etc. These averments were all put in issue by the answer interposed by the defendants.
    The plaintiff in error prevailed in the court of common pleas. Thereupon the defendants in error instituted in the circuit court proceedings in error, which resulted in the reversal of the judgment of the court of common pleas, on the ground that the latter court erred in the instructions which it gave to the jury upon the trial. To reverse the judgment of the circuit court and reinstate that of the court of common pleas is the object of the proceedings in this court.

      H. J. Caldwell, B. J. Blandin and Samuel M. Eddy, for plaintiff in error.
    Brief of Samuel M. Eddy. .

    I. It is generally the rule of law, that when a proprietor lets a job of. work to an independent contractor in such a way that the contractor has the entire possession, and the proprietor has no possession and no right upon the premises except to see that the work is performed according to the contract, the proprietor is not responsible for the negligence of the contractor or his servants.
    While this is generally the rule, yet to it there are several exceptions. Then there are limitations which, entering as elements into a case, destroy the application of the rule, so that for two reasons the proprietors in this case are liable for the injury to plaintiff in error.
    The following are the principal exceptions-.
    1. Where the work is illegal per se.

      2. Where it is impossible to perform it without injury to others.
    3. Where the work is necessarily dangerous unless properly protected and guarded.
    4. Where a duty in law or by contract rests upon the owner, as to others or the public, to keep the place without danger, such duty cannot be avoided by the intervention of a contractor, nor can the responsibility for the same.
    5. When it is the very thing that the proprietor has contracted to have done, as distinguished from matters collateral thereto, that does the mischief, the proprietor is not relieved.
    6. Where the proprietor allows the work to become a nuisance, he is responsible, for if such illegality was contemplated when the work commenced, then he would be liable; if not contemplated,-then the contractor making it so is in violation of the intent of the contract. This being so, the proprietor, would have a right to interfere and have it done as contemplated, and if he does not then he is liable.
    The principal limitations of the contract that take it out of the rules are these:
    1. Where the proprietor retains to himself the work of guarding dangerous places, he is liable for damages from the want of proper guards and protection.

      2. Where the proprietor voluntarily assists in making the work a nuisance or dangerous, he is liable to one injured thereby.
    3. Where the proprietor does a part of the work himself and contracts out a part, he must see that the, actual work to be done is kept safe.
    4. Where the proprietor lets out work which is or will become dangerous, unless properly guarded and protected, and does not bind the contractor to keep such protection about the place, then the proprietor retains such duty upon himself and is liable for injury caused b3^ the want of such guards or from insufficient protection.
    5. Where there are two ways of doing work, one more dangerous than the other, and the proprietor lets the contract for the more dangerous method of doing the work.
    About all the law of this case is in the correct application of what has thus far been stated. Two questions only arise : 1st. Do any or all of the above exceptions or limitations exist as law? 2d. Do they apply to the facts of this case ? If I satisfy this court that the first has an affirmative answer, then the court can easily see from the facts that many of them, if not all of them, do apply to the case.
    Where a right is possessed and a duty is attached to the exercise of that right, such duty must be performed, and the person possessing the right cannot relieve himself from the liability through the intervention of an independent contractor. A person owning property abutting on a street, with his lot, gets the right at law of placing coal vaults and area-ways under the streets. Attached to .this right is this duty of keeping the street safe for those using it. Hence he cannot relieve himself from this duty. 4 Ohio St. 399.
    In the case on trial the defendants in error could have made their contract obliging their contractor to have kept a protection around this unsafe place. They did not do this. Having made the contract without providing for protection, they are responsible for this cheap method. 5 Ohio St. 38 ; 34 Ohio St. G38; 39 Ohio St. 461; 41 Ohio St. 465; 8 Ohio St. 358; C. H. & D. R. R. v. Van Dorn, Raw Bul., vol. 15, No. 9, 292; 1st Circuit Ct., 294; Kithn v. Reminder, etc.
      Raw Bul., Vol 16, No. 20, 366; The Canal & W. Co. v. Cincinnati, Raw Bul. vol. 17, No. 6,'117; Hundhauser v. Bond, et al., 36 Wis., 29; 30 Md, 179; 29 Iowa 210; 86 Ill, 110; 2 Dewall (Ky.) 137; 16 Wallace, 566; 3 Minn, 205; 53 Md, 110; 5 Neb, 136; McComas v. Citizen's Gas Light Co., 40 Barb, 380; Storr v. Utica City, 17 N. Y, 104; Buffalo v. Holloway, 7 N. Y, 493; 23 Peck 24; Sturgis v. The Society 130 Mass, 415; 106 Mass, 194; Robbins v. Chicago, 4 Wallace 657; Chicago v. Robbins, 72 Black 418; 2 Hilton, 66 (N. Y.); 9 Mich, 165; 27 Mich, 188; 2 Dillon Mu, Corp, section 1030; Homan v. Stanley, 66 Pa. St, 464; 3 Duerr N. Y, 27; 52 N. H, 120; 51 American Decision, 200; Dicey on Parties, 469, §451; Thompson on Negligence, 901, §24; Wood on Master and Servant, 624; 1 Common Bench, 578; Burgess v. Gray, 50 Com, Raw; Elis v. Sheffield Gas Con. Co., 2 El- & Bd. 767;. Pickard v. Smith, 10 Com. Bench, N. S. 470; Hale v. F. A. R. Co., 6 Hurls & Norris, 488; Gray v. Pullen, 5 B. & S. 970, 983; Parry v. Ashton, 1 R. R. Q. B. div, 314; Bower v. Peate, 1 R. R. Q. B. div, 321; 8 Ohio St, 358.
    It will be seen by examining the charges requested and the charge given, that none of the exceptions to the general rule were involved in the requests or the charge. The court refused to charge the requests and based its charges upon the fact that the work was illegal; being illegal and dangerous in its nature it was a nuisance per se, hence the proprietor would be liable for damages regardless of negligence, provided the injured party had not contributed.

      Theodore E. Burton, and Estep, Dickey, Carr & Goff, for defendants in error.
    We maintain that the instructions given were clearly erroneous, and that the judgment of the circuit court was right and proper in the premises, and we think that the law upon this subject in this state is well settled, and are surprised that it should be controverted. Clark v. Fry, 8 Ohio St. 358. The averments of the petition in that case were substantially the same as in the case at bar.

      We commend that case to the careful consideration of the court, as we think it conclusive of the case at bar in every regard, as the owner of the premises was exonerated from liability.
    The rules of law as announced in that case, are affirmed in the case of Gwathney v. Little Miami Railroad Company, 12 Ohio St. 92.
    The principle in these cases is again expressly affirmed by this court by referring to them specifically in the case of Shinglebeck v. Moon, 32 Ohio St. 264. See also King v. N. Y. C. & H. R. R. R. Co., 66 New York, 181; Hexamer v. Webb, 101 N. Y. 377; Smith v. Simmons, 103 Pa. St. 32, Kepperly v. Ramsden, 83 Ill., 354; Bennett v. Truebody, 66 Cal. 509; Conners v. Hennessey, 112 Mass. 96; Bailey v Troy & Boston R. R. Co., 57 Ver. 252; Carter v. Berlin Mills, 58 N. H. 52; McCarthy v.“Second Parish of Portland, 71 Me., 318; Cuff, Advix, v. The Newark & New York R. R. Co., et al. 35 N. J. E. 17.
    In the case at bar it will be noticed that the work was not in itself a nuisance, and that the nuisance and danger was solely caused by the failure of the contractor to properly protect the excavations, and the injury resulted solely from the negligence of the contractor. Wabash, St. Louis & Pacific Railway Co. v. Farver, 111 Ind. 195; Overton v. Freeman, 73 Eng. C. E. 867; Clark v. Fry, supra.

    There is neither averment nor proof in the case at bar that the work and improvement provided for by the contract was not necessary and proper in the construction of the building and making the improvements undertaken on the lot of the defendants in error. The only ground of complaint apparent in the petition, or in the proof, is, that due and proper care was not taken to guard the excavation so as to secure third persons, passing along the street, from danger.
    In Clark v. Fry, the house being constructed fronted upon Summit street, in the, city of Toledo. The excavation extended into the street. The plaintiff below, in passing along the street, fell into the excavation and was injured. He fell and was injured solely because the excavation was not properly guarded. In all respects the case appears to us identical with the case at bar, and therefore, as it has not been overruled, conclusive, and that such has been the law of Ohio for more than fifty years.
    In the case at bar, defendants in error had neither the control of the premises in controversy, or the persons who were actually guilty of negligence; neither had they the right to such control. The contract made by defendants in error with the contractor of the construction of this building, and making these improvements, certainly required, at least by implication, that they should be made in the usual and proper manner.
   Bradbury, J.

The defendants in error, who were also defendants in the Court of Common Pleas, admitted in their answer to the petition of the plaintiff, that they were the owners of a leasehold estate in the premises on which the building was being constructed, and that the street and sidewalks upon which it was situated constituted a thoroughfare on which there was “a large amount of travel,” but they denied every other allegation of the petition. Notwithstanding this, however, there is no real controversy in the evidence over any material fact in the case except as to the kind and quality of the boards that were laid over the hole into which plaintiff fell, and the extent of the injury he sustained thereby. The main contention of the defendants being that the work was being done by an independent contractor, and that the negligence, if there was any, was that of the servants of the latter, over whom defendants had no control, and for whose acts they were not responsible.

Upon this theory of the case the defendants on the trial in the court of common pleas, requested that court to instruct the jury as follows:

If the jury find from the evidence that the defendants had let the work of constructing the building and area in question to contractors, who were to do all the work and furnish all the materials on their own credit, with their own means, and that the defendants, while the work was in progress, had no possession or occupancy of the premises, and had no control of the mode or manner in which said contractors should do the work, other than to accept or reject the work as being in compliance or non-compliance with the contract, then the defendants are not responsible for any injury resulting to the plaintiff in consequence of the negligence of said contractors or any of their employes in not guarding the said area with proper protections or coverings.”

This instruction the court refused to give to the jury, and the defendants excepted. The doctrine contained in the instruction thus requested and refused is in strict accord with the holding of this court in Clark v. Fry, 8 Ohio St. 358, from which we are not inclined to recede, where the facts make it applicable, but on the other hand are not disposed to extend it to other states of fact not strictly analogous to those of that case. The instruction thus asked and refused assumes that evidence had been submitted to the jury from which they could find a state of fact in all. essential respects like that in Clark v. Fry, supra; that is, that the defendants had let the work of constructing the building to independent contractors, and had given to them the entire control and occupancy of the premises while the work was in progress.

If the evidence did not tend to prove such a state of facts as the instruction assumed, the proposition of law which it embraced was an abstract one, and the refusal to give it to the jury was not error. It becomes necessary, therefore, to ascertain whether or not evidence had been introduced tending to prove the state of facts thus assumed.

It is true that the circuit court did not reverse the judgment of the court of common pleas because of the refusal to give this instruction, but did so on the ground that certain instructions that were given were erroneous; nevertheless, it becomes necessary to determine whether the rule declared by this rejected instruction was applicable to the facts or not, for if so applicable, its rejection was error requiring a reversal of the judgment, and the judgment of reversal should be affirmed, although placed upon some other ground, which, in the opinion of this court was not sufficient to warrant it. In such case the judgment would be the proper one, -whatever may have been the reason assigned for its rendition.

The plaintiff placed his right of action upon this state of facts; that the defendants were constructing a large brick building, and had left a number of openings for areas along the front end of it, each of which extended along the end about twelve feet and out into the sidewalk three or four feet, over which it was their intention to place iron gratings, and that by reason of their neglecting to sufficiently guard these holes, he fell into one of them and was injured; this the defendants denied. They did not, however, attempt to controvert the fact that the openings had been left, into which plaintiff had fallen, but, without pleading that the building was being constructed by an independent contractor, sought to ground their defense upon that circumstance, by requesting the instruction now under consideration.

The only contract respecting the building or its construction disclosed by the record, is one put in evidence by the plaintiff, and which reads as follows:

“The agreement between Wm. Whalen & Chas. Steg-kemper, first party, and John Gawne & Sons, second party, witnesseth: That the specification and plans signed by parties, and every clause thereof, is made'a part of this agreement, and said second party hereby agrees to begin as soon as possible after July 1,1883, and to do, perform, finish and complete, in the manner therein stated, all the work set forth and referred to in said specification, etc., in ninety days from commencement. Said second party further agrees to furnish all the material necessary to the completion of said work as set forth in said specification, etc.
“Said first party agrees to pay said second party for said work at the rate of seventy-five per cent., as the work progresses; six thousand, seven hundred and fifty dollars being paid by the time said work is finished, and the balance two thousand, two hundred and fifty dollars to be paid in monthly installments, and in not more than ten months from the completion of said work.
“If any alteration of, or addition to said building, or any part thereof, should be directed by said first party, such alteration or addition shall be estimated at the rate of ($10) ten dollars per thousand for brick work, and ($3.25) three dollars and twenty-five cents per perch for some stone work; both laid and completed wherever used. All other parts at the same rate as this contract price $9,000, is based on. And if by such alteration or addition any work included in said specification, etc., is not done, the value of such work shall be deducted from the price agreed to be paid for the whole, and estimated in like manner as last mentioned.
“Said second party shall dismiss any hands employed by him in said work, whenever said first party shall so direct and give a substantial reason for.
“ In witness whereof, the said parties have hereunto set their hands and seals, this fifteenth day of February, A. D. 1883. '
“(Insertion made before signing.)
“William Whalen,
“C. Stegkempee,
“JOHN GAWNE & SONS.”

Under the specifications referred to in the contract it was the duty of the contractors to furnish materials for and perform only that part of the work of construction that is usually done by masons and plasterers ; with the excavation, the wood work, painting, plumbing, etc., they had nothing to do. There is some evidence tending to prove that the wood work was also under contract, but to whom and upon what terms, the record is silent. As respects the balance of the work, including the making of the excavations for cellars, areas and coal vaults, there is no evidence tending to show that it was performed under the direction or control of any one except the defendants themselves. It is true that the contractors, Gawne & Sons, took a portion of the earth from the excavation and used it in making mortar for their work on the building, it appearing to contain a sufficient proportion of sand for that purpose; but this was done for their own convenience, by consent of defendants and without any contractual obligation on the part of Gawne & Sons to do so. An examination of the contract between Gawne & Sons and the defendants will disclose that it contains no stipulation giving to those contractors the occupancy, possession or control of the premises ; nor does the record disclose any other evidence tending to show they had, or were entitled to have, such occupancy, possession and control. On the contrary, the undisputed testimony on both sides shows that in fact they did not have such occupancy, possession and control, for the work of making the excavation, as well as the carpenter’s work was in progress contemporaneously with that of Gawne & Sons under their contract, every part of the work of construction being pressed forward simultaneously, or as nearly so as was practicable. There was, therefore, no evidence tending to prove the state of facts assumed in the rejected instruction, and it was properly rejected. It was an abstract proposition of law, and, however sound, should not have been given to the jury. Lewis v. State, 4 Ohio, 389; Insurance Company v. Paver, 16 Ohio, 324; Steward v. Southard, 17 Ohio, 406; Tracy v. Card, 2 Ohio St. 431; Railroad v. Crawford, 24 Ohio St. 631; Carlisle v. Foster, 10 Ohio St. 198; Callahan v. State, 21 Ohio St. 306.

The defendants in the court of common pleas excepted to the following portion of the charge of that'court:

“I mean to be understood by the jury to say, that if these defendants, for- the purpose of constructing this block of buildings, removed, either by themselves or by anybody else — if they caused to be removed this sidewalk and made this excavation and opened this hole into which the plaintiff fell, it is the duty of the defendants, doing that by themselves or by their agents, by their independent contractors, or in any other way — it is their enterprise; they are doing it for their benefit; it is their duty to use ordinary care to see that it is guarded and protected by the use of such ordinary care as men of ordinary prudence are accustomed to employ in that kind of enterprise. It is no defense for them to say that the work was being done by an independent contractor.”

This instruction lays down the rule, that if the defendants, “by their independent contractors,” removed the sidewalk and made the excavation into which plaintiff fell, it was their duty to use ordinary care to see that it was guarded and protected. If a construction, as broad as the language used will warrant, should be given to this instruction, it must be held to lay down the rule that if the plan of the building made necessary an excavation in the adjoining sidewalk, the defendants could not have exonerated themselves from the duty of exercising ordinary care in guarding the excavation after it was made, even by an agreement with an independent contractor, providing that the latter should furnish all of the material and perform all the work including the excavation necessary to its construction, and have the sole occupancy and control of the premises while performing the contract. The rule thus broadly stated directly contravenes the doctrine of Clark v. Fry, 8 Ohio St. 358, and cannot be maintained without overruling that case.

If, however, this language of the learned judge should be taken in a more restricted sense, and as designed to declare that one, intending to construct a building on a plan that requires an excavation to be made in the adjacent public sidewalk, cannot divide the work of construction and let to an independent contractor the work of excavating, only, and thereby shift from himself to such contractor the duty of guarding the excavation while it was being made or after-wards, then the principle underlying the instruction does not necessarily conflict with the doctrine of Clark v. Fry, supra, provided the doctrine of that case is to be strictly limited to the facts upon which it was announced, and the tendency of this court in that direction is perhaps to be fairly indicated from the decision in the case of Railroad Co. v. Morey, 47 Ohio St. 207.

There is much innate justice in a rule of law that declines to permit one, who causes work to be done, the performance of which, though not necessarily injurious to the persons or property of others, yet necessarily creates conditions inimical to their safety, to exonerate himself from all duty towards those whom he has thus exposed to danger.

As already shown in this opinion, however, there is no evidence in the record tending to prove that a contract was made letting to an independent contractor either the entire work of constructing the building, or that of making the excavation only; so the propositions of the charge, if they are fairly inferable from the language used, denying the sufficiency of such contracts to exonerate the defendants from liability, are abstract, and if erroneous, would not warrant a reversal of the judgment of the court of common pleas unless clearly misleading in their character. French v. Millard, 2 Ohio St. 44; Schneider v. Hosier, 21 Ohio St. 98. It is not easy to perceive how the jury in this case could have been misled by a statement to them that the defendant could not exonerate himself from liability to the plaintiff, by letting the excavation, alone, or the entire work, to an independent contractor, when no such contract had been either plead or proved.

If this charge is to be construed as laying down the rule, that if the defendants themselves had made the excavation, and thus made a hole in a public street into which travelers in passing would probably fall if it was not properly guarded, could not turn it over to a contractor to build the vaults and walls, which the excavation was made to accommodate, by a contract, giving a temporary occupancy and control of the excavation to the contractor, and thus relieve themselves of further care in guarding the hole, then we hold the proposition to be sound as well as fairly applicable to the facts of the case.

As already mentioned, the undisputed facts are that the excavation was made by the defendants, and was in the sidewalk of a public street. It was dangerous unless carefully guarded. The defendants, having created the danger, were bound to exercise reasonable care to protect the public against injury on account of it, unless they could shift that duty from themselves to others. If the plaintiff fell into the hole and was injured by reason of the omission of such care, the defendants were liable, unless they had in fact escaped that duty. The only evidence from which it could be claimed they had accomplished this result, was the fact that the construction of the coal vaults and area walls in the excavation was let to independent contractors who had a right to occupy the excavation for that purpose only, and that the contractors were-using the holes, into one of which the plaintiff fell, for the purpose of mixing and handling mortar for their own convenience, to be used on other parts of the building. We do not think this was sufficient to shift from the defendants the duty to guard an excavation made by themselves. The danger was of their own creation, and they should be held bound to provide against it, and not allowed to abandon this duty to the contractor or his servants, or if they did so it was at their peril, and therefore the instruction of the court, now under consideration, which, under such circumstances imposed upon the defendants the obligation of using ordinary care in guarding the excavation, was a correct exposition of the law upon the subject.

Judgment of the circuit court reversed and that of the common pleas affirmed.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    Elster v. Springfield.

      Municipal Corporations — Streets—License to use public street, by private individual, creates no right by prescription against city— No right by prescription, as to percolating water — Contracts by municipal corporations, involving expenditure of money, made before money is in the treasury — Purpose of the statute, prohibiting — Section 2702, Revised Statutes, construed — Construction of sewers — Contract for, without funds being provided, does not make city liable for negligence in its constmction, where not otherwise liable — Nor, where law by which money was being raised, was unconstitutional — When error in charge to jury, not grotmds for reversal,

    E brought an action against the city of Springfield to recover for the destruction of certain water pipes which, by virtue of a license and grant from the city, had been placed under the surface of Center street for the purpose of conveying water from a spring owned by plaintiff, and located within twenty feet of the west margin of Center street, to a manufactory on the same street owned by plaintiff, and for destruction of the spring by . means of the unlawful and negligent construction of a sewer "built by the city in Center street. It was shown that the pipes had been in place as they were when taken up by the city, for more than twenty-one years. The water thus conveyed to the factory was valuable, and the destruction of the pipes, and the cutting oif of the water proved a serious damage to the plaintiff in the running of the factory.
    The city had been laid off into sewer districts before the proceeding, and a general system of sewerage, and plans and specifications therefor, had been prepared by experts and adopted according to law, and this sewer was one of those provided for in the general system. It was admitted that the city authorities had taken all proper and necessary steps to authorize the building of this sewer excepting that at the time of entering into the contract for the building of it, the city did not have the money in the treasury to pay the cost, and that all the money for the payment of the cost the city proposed to raise, and did raise by loan, under an act that was unconstitutional. The pipes were taken up by the city with care, after notice to the plaintiff, at the commencement of the work of excavating for the sewer, and the spring was destroyed by the cutting off of a portion of the water which supplied it, by excavating the trench in which the sewer was built, the trench being lower than the spring. The walls of the sewer were not made water tight, and the water of the spring, and water from sources which had supplied the spring, were carried off in part under the walls of the sewer, and in part by seeping through the walls into .the sewer. It did not appear that the spring was supplied other than by water percolating through the earth.
    The trial court gave an incorrect rule of law to the jury, which was excepted to by plaintiff.

      Held • 1. Section 1692, Revised Statutes, gives to cities the power to build sewers, and Center street being a public street, and sewerage being one of the legitimate uses to which a public street may be devoted, the construction therein of a sewer, if done in a lawful manner, was an authorized use by the city of that street.
    2. The use of the street by the plaintiff, for his water pipes being allowed by license, there was no enjoyment adverse to the city. Nor had the city power by grant, to give plaintiff any right in the street inconsistent with the future legitimate uses of the street by the city. Hence, no right by prescription to maintain the pipes in the street would vest in the plaintiff, although he had enjoyed the use more than twenty-one years, and any damage accruing to plaintiff by removing the pipes, and thus interrupting the flow of water through them, would be damnum absque injuria.

      3. No right by prescription can exist as to percolating water, nor is one prevented from making any lawful and legitimate use of his own huid, by digging or otherwise, even though the effect is to drain a spring on the land of an adjoining proprietor. Injury to the spring, therefore, by draining it, or cutting off water supplied to it by percolation, would not be, per se, actionable.
    4. Section 2702, Revised Statutes, which provides that no contract involving the expenditure of money can be entered into unless the clerk shall certify that the money required by the contract is in the treasury to the credit of the fund, is intended for the protection of tax-payers by checking municipal extravagance and the incurring of indebtedness, and is not intended to attach liability to a city for negligence where the city would not otherwise be liable. Hence, the mere fact that there was no money in the treasury to pay the cost of the sewer at the time of making the contract, would not make the city liable even though there was negligence in its construction. Nor would the fact that the act under which the city was proceeding to raise the money was unconstitutional give a right of action to plaintiff on the ground of negligence in the construction of the sewer.
    5. A judgment will not be reversed for error in the charge to the jury where, upon the most favorable construction of the evidence of the complaining party, he had shown no right of recovery
    (Decided February 2, 1892.)
    Error to the Circuit Court of Clark county.
    The plaintiff in error instituted a suit in the court oi common pleas against the defendant to recover for the destruction of certain water pipes, and of a spring, by the negligent and unlawful construction, by the city, of a sewer or drain in Center street. Issue was joined, and a trial by jury followed. The court gave to the jury the following charge:
    “Gentlemen of the jury, as a matter of law I say to you that the city was not a trespasser in this case — not a wrongdoer. That it had the right to use Center street for the purpose of constructing a sewer, it having taken the necessary preliminary steps, there being no conflict in the testimony about the necessary preliminary steps having been taken, the only objection made being that there was no money in the treasury of the city to the credit of the sewer fund at the time the contract for the construction of the sewer was made and entered into, and that there was no money in the city treasury at the time of the passage of the ordinances and resolutions providing for the construction of the sewer. Though the matter he admitted by the defendant, yet the court being of the opinion that this was not a jurisdictional matter — not a matter that can make any difference between the parties to this suit, and there being no conflict in the testimony as to the care used by the city in the construction of this sewer — all the testimony in this case tending to show that the defendant used such care and caution as a careful, prudent and cautious man would have used in the construction of a like improvement upon his own premises, the plaintiff having failed to establish by a preponderance of the evidence, negligence on the part of the defendant, as he was bound to before* he could recover in this action, I direct that you return a verdict for the defendant.”
    The plaintiff’s counsel tendered to the court several special requests to charge, each of which was refused, to which refusals, and to the charge as given, and every ■ part thereof, plaintiff excepted.
    Verdict for the defendant was returned by the jury, and a judgment thereon rendered, which, on error, was affirmed by the circuit court.

      Keifer & Keifer, for plaintiff in error.
    I. The court should have let the question of negligence at least go to the jury, even though all other questions were against the plaintiff.
    The rule is clearly established everywhere that if there is any evidence tending to support the material issues of the party holding the affirmative thereof, the case must go to the jury, and a charge such as that given in this case, arresting the case from the jury is a clear usurpation of the province of the jury. Dick v. R.R.Co., 38 Ohio St. 389; Whelan v. Kingsley, 26 Ohio St. 131; Turner v. Turner, 17 Ohio St. 449; Richardso7i v. Ctirtis, 33 Ohio St. 329; Wightman v. Washington, 1 Black (U. S.) 39, 49.

      II. We admit that the city of Springfield had the general right to use a public street for the construction of sewers. This admission appears in the plaintiff’s petition and the power to open sewers is found in the general charter right relating to municipal corporations in Ohio. Revised Statutes, secs. 1692, 2232, 2304.
    The act under which the city undertook to build the Center street sewer was clearly unconstitutional. State v. Mitchell, 31 Ohio St. 592; State v. Constantine, 42 Ohio St, 437; State v. Pugh, 43 Ohio St. 98; 82 Ohio Laws (1885), 153.
    Without this act the city, for want of money in its treasury, could not lawfully construct the sewer. Revised Statutes 2698, 2691, 2700; Id. 2702; Amended, Ohio Laws, vol. 80, 178.
    It may be important, in the consideration of this case, to keep in mind that in Ohio, the fee of the street is in the abutting lot owners, regardless of any specially acquired right. Crawford v. Delaware, 7 Ohio St. 459-469; R. R. Co. v. Williams, 35 Ohio St. 171; R. R. Co. v. Hambleton, 40 Ohio St., 501; Bingham v. Doane, 9 Ohio, 168; Dil. on Mun. Cor. sec. 687.
    But regardless of where the fee is, the abutting property owners have rights in the street which cannot be taken away from them in any other way than as provided by law, and in using the streets even where the legal right is acquired, there must be due care used, and whatever is done therein must be done without negligence. Ry. Co. v. Lawrence, 38 Ohio St. 41; Ry. Co. v. Cumminsville, 14 Ohio St. 524; Crawford v. Delaware, 7 Ohio St. 469; Att’y Gen'l v. Cin. Gas Co. 18 Ohio St. 262, 292; Barkley v. Howell, 6 Pet. 494, 512; Commins v. City of Seymour, 41 Amer. Rep. 623, 625; Terre Haute v. Hudnut, 112 Ind. 542.
    Before going further into the law of this case, it may be well enough to consider what a city sewer is. American Mechanical Dictionary, vol. 3, 2097.
    In conferring powers upon municipal corporations to construct sewers, drains and ditches are distinguished from sewers; and the words “drains and ditches” are used in contradistinction of the word sewers in the Ohio laws. Revised Statutes, secs. 1692, par. 21, Am’d Ohio Raw, vol. 78, 204; 2232, Am’d Ohio Raw, vol. 84, 66; 2366, etc., etc., 2404, 2402.
    It has been claimed that notwithstanding the fact that the law under which the city of Springfield undertook to construct the Center street sewer was unconstitutional, that it. was only so as between the city and the contractor, and that it was still good enough to enable the city to destroy the property of abutting land owners along Center street, and this claim may be made in this court, absurd as it seems, on its bare statement.
    Any person has a right to question the validity of a law, whenever he is, in any way, affected by its execution. Counterman v. Dublin Tp., 38 Ohio St. 515, 517; Tone v. Cohmi-bus, 39 Ohio St. 281, 309; Welker v. Potter, 18 Ohio St. 85; Roberts v. Easton, 19 Ohio St. 78; Smith v. Toledo, 24 Ohio St. 126, 131.
    In Ohio, at least, it has been held that a corporation cannot have the benefit of a contract and repudiate its obligations. Shoemaker v. Goshen Tp., 14 Ohio St. 569; Goshen Tp. v. Shoemaker, 12 Ohio St. 624; State v. Van Horne, 7 Ohio St. 327; State v. Mitchell, 31 Ohio St. 592.
    III. Whatever may yet be in dispute, growing out of the old rule and apparent conflict of authorities, on the question of a municipal corporation’s liability for wrongful and void acts, committed wholly outside of the corporate powers of such-corporation, it is now, at least, completely settled, that a municipal corporation -is liable for wrongful acts of its agents where these are within the scope of the general powers of the corporation, even though such acts amount to a tort. 2 Dillon, secs. 936, 965, 971, 973, 968, 966,1046, 1048, 1050; Akron v. McComb, 18 Ohio, 229; Goodloe v. Cincinnati, 4 Ohio 500; Evans v. Cincinnati, 2 Handjr 236; 0»r cimiati v. Evans, 5 Ohio St. 594. . ..
    If the act complained of lies wholly outside of the general or special powers of a municipal corporation as conferred in its charter, it is held in some of the states that there is no liability for resulting damage; but this doctrine is hardly maintainable now in the light of the majority of the well-considered cases. 2 Dillon, secs. 968, 971, 972; Hildreth v. Lowell, 11 Gray 345; Walling, v. Shreveport,, 5 Da.. Ann. 660 ; Stoddard v. Saratoga Springs, 4 N. Y. S. 745.
    The authorities last cited go to the full extent of holding that, however illegally and wrongfully the act may have been performed, and, however much it may have been outside of the corporate powers, if the act was directed by the municipal corporate powers, or even ratified after it was committed, that corporations become liable for the damage occasioned by the wrongful act. Cincinnati v. Cameron, 33 Ohio St. 366; Fox v. Cincinnati, 33 Ohio St. 492.
    On the question of a city’s liability for injuries to property, etc., in the construction of sewers, see, Chicago Daw Journal, July 1890, 429; 18 Am. and Eng. Corp. Cas., 302, 317, n.; 89 Am. Decisions, 400, n.; 9 N. E. Rep., 142, n.; 24 Cent. D. J. 123.
    An action for tort lies against a city by the owner of land through which its agents have unlawfully made a sewer. Hildreth v. Lowell, 11 Gray, 345; 2 Dillon, secs. 971 and notes, 968; Railway Co. v. I^awrence, 38 Ohio St., 41; Keat-ing v. Cincinnati, 38 Ohio St., 141; Fox v. Cincinnati, 33 Ohio St., 492; Dayton v. Pease, 4 Ohio St., 96.
    Formerly the doctrine of ultra vires was successfully invoked to exempt corporations from their wrongful acts, and to allow them to escape from contracts that were not supposed to be beneficial to them, but this doctrine has been in the main overthrown as to all classes of corporations. National Bank v. Graham, 100 U. S. Rep. 699 ; State Board v. Railway Co., 47 Ind., 407 ; Whitney Arms Co. v. Barlow, 63 1ST. Y., 62 ; Lexington v. Butler, 14 Wall., 282; Bank v. Globe Works, 101 Mass., 57.
    IV. Even though the city in this case should not be liable because of want of legal authority to construct the particular sewer, it is claimed that this sewer was so negligently constructed that damage resulted.
    The sewer should have been constructed water tight, that is, so as not to admit water from without, or to allow it to escape from within, Cincinnati v. Penny, 21 Ohio St., 499 ; Kerwhacker v. R. R. Co., 3 Ohio St., 172 ; Tiffin v. McCor

      mick, 34 Ohio St., 638; Carman v. R. R. Co., 4 Ohio St., 399; 2 Dillon, sec. 974 and n.; Rhodes v. Cleveland, 10 Ohio, 159; McComb v. Akron, 15 Ohio, 474; Akron v. McComb, 18 Ohio, 229 ; Mout v. Gilmer, 37 Ala., 116; Logansport v. Wright, 25 Ind., 512 ; Wallaces. Muscatine, 4 Green (Iowa), 375; Barton v. Syracuse, 36 N. Y., 54; Proprietors, etc., v. Lowell, 7 Gray, 223; Fhostburg v. Hutchins, 16 Atl. Rep., 380 ; Gross v. Lampasas, 11 S. W. Rep., 1086; 41 Am. Rep., 618 ; 24 Am. Rep., 553 and n.; Minn v. Rutland, 52 Vt.,481; Parker v. Railroad, 3 Cush., 107, 114; Wightman v. Washington, 1 Black (U. S.), 39 ; City of Evansville v. Decker, 84 Ind., 325; Rochester W. L. Co. v. Rochester, 3 N. Y., 463 ; Dillon on Mun. Corp., sec. 1048 n, 1050 ; Dehnonico v. New York, 1 Sandf., 222 ; Butlers. Edgwater, 6 N. Y. S. 174; Trobridge v. Brookline, 10 N. E. Rep., 796.
    V. The statute of limitations will run against a municipal corporation in favor of a private individual, so as to give him a private right in a public street. This is well settled in Ohio. Evans v. Cincinnati, 5 Ohio St., 594; Lane v. Kennedy, 13 Ohio St:, 42, 48; Oxford v. Columbia, 38 Ohio St., 96, and cases there cited; • Cincinnati v. Pres. Church, 8 Ohio, 298; Williams v. Pres. Church, 1 Ohio St., 478; Fox v. Hart, 11 Ohio, 414; McComb v. Miller, 28 Ohio St., 488; R. R. Co. v. Com'rs., 31 Ohio St., 338, 349.
    There is no distinction in the application of the statute of limitations, between trespasses under ground and on the surface; nor whether the cause of action is known or unknown within the 'time limited by the statute. Williams v. Coal Co., 37 Ohio St., 583, 589; Hawk v. Minnich, 19 Ohio St., 462; Htmters;. Gibbo?is, 1 Hurl.'& Nor., 459; Cmcinnati v. 1st. Pres. Church, 8 Ohio, 299; Cincinnati v. Evans, 5 Ohio St., 594.
    This case is to be distinguished from a class of cases where a city or village is not held liable for insufficient drainage, etc., of land-owner’s property, by reason of the plan of drainage adopted. Of this class of cases are the following : Mills v. Brooklyn, 32 N. Y., 489; Fair v. Philadelphia, 88 Pa. St., 309 ; Springfield v. Spence, 39 Ohio St., 665. All these cases recognize the liability of a city for damages growing out of the defective construction of the work.
    And it is not like a case of the exercise of a franchise by legislative authority, by which a private corporation uses streets of a city, where such use is held not to be exclusive, as in the case of State, ex rel. v. Gas Co., 18 Ohio St., 262.
    VI. The defendant is liable for work imperfectly done under a contract made by it and afterwards accepted. Carmen v. R. R. Co., 4 Ohio St., 899; Tiffin v. McCormick, 84 Ohio St., 638; Tremain v. Cohoes Co., 2 N. Y., 163 ; Circle-ville v. Neauding, 41 Ohio St., 465; 2 W. U. G., 270 ; Hughes v. Ry. Co., 39 Ohio St:, 461; Cincinnati v. Stone, 5 Ohio St., 38; Robms v. Chicago, 4 Wall., 657.

      A. N. Summers, city solicitor, for defendant in error.
    It- is admitted that, in the construction of the sewer, so far as the legal steps are concerned, the city proceeded in all respects in accordance with law, excepting, that at the time of entering into the contract for the construction of the sewer, the city did not have the money to pay for the sewers; and, that the money was afterwards obtained under an act which it is claimed was unconstitutional.
    It seems to us, then, wholly unnecessary to consider, so far as this case is concerned, whether the act under which the money was obtained was constitutional. The mere statement of the plaintiff’s claim is sufficient. It is this: Granted that the city in the construction of this sewer acted without negligence and within the scope of its municipal authority, still it is liable, because, at the time it entered into contract, it did not have in its treasury the money to pay for it, but proposed- to and did raise the money under an unconstitutional law. I confess I cannot see how it could have made any difference, so far as this case is concerned, had the city stolen the money. Its right to use the street for sewerage purposes, to adopt a system of sewerage and plans and specifications for sewers, was not dependent upon its having money in the treasury. Section 2702 was enacted in the interest of the taxpayer and not for the purpose of enlarging the ground ■of municipal liability; the right to use the streets for sewerage purposes and the laws prescribing the steps to be taken in the construction of sewers existed long prior to the enactment of section 2702.
    In the case at bar the plaintiff was not the owner of real estate abutting on that part of the street in which the sewer was constructed. The fee of the street was not in the abutting lot owners. However, we claim it is immaterial whether the fee of the street was in the city or in the abutting lot owner, or whether the plaintiff was owner of abutting property. Dillon’s Munic. Corp. sec. 688; City of Cincinnati v. Penny, 21 Ohio St. 499.
    This is true also of Springfield. Subdivision 5, chapter 4, div. 7, title XII, Revised Statutes; especially sec. 2378, 2397, and subdivision 21, sec. 1692; Dillon’s Munic. Corp., sec. 1046; Springfield v. Spence, 39 Ohio St. 665.
    As a general rule, a municipal corporation is not liable for injuries to buildings on lots abutting upon streets and alleys, resulting from the improvements of such streets or alleys, or from their appropriation to a public use, provided its officers and agents, in making such improvements or appropriation, act within the scope of their authority, and without negligence or malice. City of Cincinnati v. Penny 21 Ohio St., 499; Smith v. Mayor, 66 N. Y., 295.
    The defendant did not undermine plaintiff’s spring, nor encroach or trespass on plaintiff’s property. The petition states that the spring was twenty feet west of Center street and, about fifty feet north of Washington street, and that the sewer was constructed near the center of the street. The water was not drawn out of the spring but intercepted before it reached the spring. In any view of this branch of the case, therefore, the plaintiff is not entitled to recover. Frasier v. Brown, 12 Ohio St., 294.
    As to the pipes. It is well settled law in Ohio that municipal corporations are subject to the operation of the statute of limitations in the same manner and to the same extent as natural persons, but in order to acquire title by prescription or adverse possession, the “adverse possession must be actual, open, continuous, hostile and exclusive.” The very essence of an adverse possession is, that the holder of it claims the right to his possession, not under, but in opposition to, the title to which his possession is alleged to be adverse. Nor is possession adverse when it is held by agreement with the true owner. Dietrick v. Noel, 42 Ohio St., 18, 21: Washburn’on Real Property (4th ed.) 322, 323.
    The city could not grant more than a license to lay the pipes in the street, and if they were laid under a license, as plaintiff claims in his petition they were, and in his brief that defendant’s answer admits they were, then he could obtain no right by prescription. Frazier v. Drown, 12 Ohio St., 311; Washburn on Real Property, 356; Dillon’s Munic. Corp. sec. 656 b; also sec. 660; Kirby v. Citizens' Ry. Co., Md. 168; Portsmouth Gas Light Co. v. Shanahan (N. H.) 19 Atlantic Reporter, 1002.
    So, here, the city could revoke the license to maintain the pipes in the street, or it could move them or require them to be removed if necessary in the construction of the sewer.
    The defendant, having acted within the scope of its authority and without negligence, i.t was the duty of the court to instruct the jury to return a verdict for the defendant; such being his duty it matters little what reason he may have given for so directing them; and such being his duty, it was unnecessary to charge them as requested by plaintiff.
   Spear, J.

It is not contended that the charge to the jury regarding the weight of the evidence was a correct instruction, but the claim of the defendant in error is, that under no charge that could have been given would the plaintiff have been entitled to a verdict.

This condition of the record makes it incumbent on this court either to reverse the judgments below and remand the cause for a new trial, or to examine the evidence in order to determine whether, upon plaintiff’s own showing, the right judgment was not rendered. The circuit court took the latter course, and the authority of this court to do likewise is not doubted. If, taking the evidence of plaintiff as true, a right of recovery, under the pleadings, had been established, then the plaintiff in error is entitled to a judgment of reversal, while, on the other hand, if plaintiff had failed to make a case, by the pleadings and proof, entitling him, in the most favorable view, to a verdict, then the charge to the jury was immaterial, and the judgments should be affirmed.

The important facts appearing are as follows: The water-pipes had been placed under the surface of Center street, one of the public streets of the municipality, by virtue of what is-termed “a license, privilege and grant from the town of Springfield,” to plaintiff’s predecessor in title, for the purpose of conveying water fr.oni a spring owned by him, and located within twenty feet of the west margin of Center street, to a manufactory on the same street owned by him. The pipes had been in place as they were when taken up by the city, for more than twenty-one years. The water thus conveyed to the factory was valuable, and the destruction of the pipes, and the cutting off of the water proved a serious damage to the plaintiff in the running of the factory.

Whether the plaintiff was the owner of the lot on which the spring was located, or so much only as supported the spring, with the right from the lot owner to maintain the pipes to the line of the street, did not clearly appear, but, for the purposes of the case, he may be treated as an abutting owner.

The city had been laid off into sewer districts before the commencement by council of the proceeding to construct the sewer, and a general system of sewerage and plans and specifications therefor, had been prepared by experts and adopted according to law, and this sewer was one of those provided for in the general system. It was admitted that the city authorities had taken all proper and necessary steps to authorize the building of this sewer, excepting that at the time of passing the ordinance and of entering into the contract for the building of the sewer, the city did not have the money in the treasury to pay the cost, and that all the money for the payment of the cost, the city proposed to raise, and did raise by loan, under an act that was uncousti-tutional. The pipes were taken up by the city with care, after notice to the plaintiff, at the commencement of the work of excavating for the sewer, and the spring was destroyed by the cutting off of a portion of the water which supplied it by excavating the trench in which the sewer was built, the trench being lower than the spring. The walls of the sewer were not made water tight, and the water of the spring, and water from sources which had supplied the spring, were carried off in part under the walls of the sewer, and in part by seeping through the walls into the sewer. It did not appear that the spring was supplied other than by water percolating through the earth.

No charge is made that sewage flowed out from the sewer, working injury. It is because water flowed into it that complaint is made.

Plaintiff’s claim for damages naturally divides itself into two branches. The first is for destruction of his water pipes and the interruption of the flow of water to the factory. This claim rests upon the proposition, averred as a fact in in the petition, and argued in the brief, that a right by prescription had been acquired by the occupancy by plaintiff and his predecessors in title of the privilege of maintaining the pipes in the street for more than twenty-one years.

To thus acquire an easement the enjoyment of the privilege must have been under an adverse claim of right against the city, since no length of enjoyment by permission can ripen into an easement. 2 Washburn on Real Property, §88; Morse v. Williams, 62 Me. 445; Colvin v. Burnett, 17 Wend. 569; Luce v. Carley, 24 Wend. 451. It must also have been an open and notorious possession. The facts of adverse enjoyment, and open and notorious possession, are not, we think, shown by the evidence. The occupation was under the surface. It is presumed to have been known to the municipality because of the giving of the license, though not so as to the public. The use was not apparent, and could hot, in its nature, be notorious, as regards the public. Neither was it, in its nature, adverse, inasmuch as it did not interfere with the uses of the street, either by the municipality or the general public, until the needs for a sewer arose, nor did it, in any waj*-, work inconvenience to either. See Lane v. Kennedy, 13 Ohio St. 42. Indeed the averment that the owners “have had the license, privilege and right under a grant of the said city of Springfield,” etc., etc., would appear to be inconsistent with holding under an adverse claim of right, as we will endeavor to show later on.

As: to the grant the further averment is that “in the month of December, A. D. 1848, the said city of Springfield (then a town), by proper grant through the municipal authorities of said city, and on a good and valuable consideration, gave to J. W. and Wm. A. Kills, then the owners of the premises now owned by the plaintiff, and then the owners of the real estate and the spring situate thereon aforesaid, the privilege, license and right to lay pipes from said spring to said Center street, thence beneath the surface of said street to the premises then owned by said J. W. and Wm. A. Kills, and now by the plaintiff and the said J. W. and Wm. A. Kills, on or about, the month of May, 1849, in execution of said grant, and in pursuance of the same, and the license and privilege aforesaid, at great'* cost' and expense, procured and laid pipes from said real estate, and said spring, to said Center street, thence under the - surface thereof, on the west side of the same, north to the premises now owned by plaintiff, and for-the purpose of conducting' water from said spring to said premises for the use of the same in connection with manufacturing and other legitimate purposes, and.- the' said pipes have been maintained as thus laid down by said J. W. and Wm. A. Kills and those holding under them, and renewed from time to time from the date last aforesaid, up to the present, and especially to the time of the commission of the wrongs and injuries herein complained of. And during all such time, with the exceptions hereinafter named, the said J. W. and'Wm. A. Kills, and those purchasing and owning the real estate, -now owned by plaintiff, including said spring and the real eétate on which it is situated, have had and exercised the right to conduct the water through such 'pipes thus located, and use • the same as aforesaid.’

Plaintiff has succeeded, by mesne conveyances, to all the rights of the Kills save only as regards an unimportant privilege reserved by one Steele.

This brings us to the question of the effect in law of the grant by the town of Springfield. Its exact terms do not appear, though, probably this is not important, for the question, independent of form, is, could the council of the town make a grant of an easement in a public street which would interfere with the legitimate use of the street, by the municipality itself? This is to be determined by a consideration of the power of the corporation over the street', and its duty with respect to the street, growing out of its relations to the public.

For the purposes of this case, it is probably not of consequence whether, as to Center street, the naked fee is in the city or in the owners of the abutting lots. However, it is averred and not denied, that the town acquired its rights to the street by dedication. Therefore, under section 2601, Revised Statutes, the fee is in the municipality in trust, however, for public uses, to-wit: for all the uses of a street, subject, of course, to the property rights in the street of the abutting lot owners.

The laying of sewers, like that of gas and water pipes beneath the soil, and the erection of lamps and hitching-posts, etc., upon the surface, is a street use, sanctioned as such by their obvious purpose, and long continued usage, and that such is one of the legitimate uses to which a street may be devoted is distinctly held by this court in Cincinnati v. Penny, 21 Ohio St. 499. For such purpose, it would seem that the right of the municipality in the street could not be inferior to the right of a private owner over his own land. If the title comes by appropriation, all right to damages by reason of the acquisition of the land for street uses, in favor of abutting owners, must be held to have been taken into the account and compensation therefor awarded in the original taking, and, if by dedication, the same result would follow as an incident of the grant. That a city’s power over its streets for legitimate street purposes, is as great as that of a private individual over his own land, is recognized in Nevins v. Peoria, 41 Ill. 502; Dixon v. Baker, 65 Ill. 518; Yearney v. Smith, 86 Ill. 391, and appears to be sustained by-sufficient reason. It necessarily follows that for all such public uses the right of the municipality is paramount to any property right of the abutting owner in the street. Dillon on Munic. Corp., section 656.

The municipality is given the exclusive care, supervision and control of the streets. Hand in hand with this power goes a corresponding duty to keep them open, in repair, and free from nuisance. This implies a duty to see that the right of the public therein is not encroached upon. An encroachment which would prevent the reasonable use of the street by the municipality would be a nuisance, and power to validate such nuisance by a grant would be utterly inconsistent with the duty enjoined to keep the street free from nuisance.

As we have seen, the city as to its streets, is a trustee for the use of the public. A trustee of property for the benefit of the public could not, any more than could a trustee of private property held for known specific and continuing uses, alien or encumber the property to the prejudice of the beneficiary, and a purchaser dealing with the trustee, in either case, would be bound to take notice, at his peril, of the limitation of the power. 2 Dillon on Mun. Corp., section 671; Alton v. Trans. Co., 15 Ill. 60. Hence it would follow that whatever grant may have been made by the town of Springfield to the Kills, to maintain water-pipes in Center street, could have no greater operation than as a temporary license, subject to be revoked at the will of the town, or city, as its necessities in the future uses of the street might require. It necessarily results from this that the enjoyment of the street beneath the surface for the laying of the pipes and the flowing of the water through them was a permissive use, and that no permanent right could be acquired by long continuance.

Extended comment upon the subject is not necessary here, but we may remark in passing that it is difficult to perceive how title to an easement by prescription, as against a municipality, can result from occupancy for twenty-one years, even if it be open, notorious and adverse, for such title rests upon the presumption of a grant. We do not propose questioning that a municipal corporation, as to its streets, may be affected by the statute of limitations, and if the plaintiff’s remedy could be worked out by the operation of the statute, of course, it would not be important to him as to the ground on which the court might put it. But while treating of the subject, it is somewhat desirable that right conclusions be reached, though, they may not be necessary to a determination of the case. We have already seen that there is no power in the municipality to make a valid grant prejudicial to the interests of the public. And nothing seems better settled than that' a grant cannot be presumed unless it relates to that which one party could have granted to the other. Washburn on Easements, 150; Watkins v. Peck, 13 N. H. 360; Fishing Co. v. Carter, 61 Pa. St. 21; Chalker v. Dickinson, 1 Conn. 384. In Cincinnati v. Evans, 5 Ohio St. 594, the court says that “municipal corporations are subject to the operation of the statute of limitations, in the same manner, and to the same extent, as natural persons.” An examination of the charge of the trial court, which was under’'review in that case, and was distinctly approved, discloses that the learned judge gave effect to the statute of limitations, not as having vested in the occupant a title by prescription, but upon the ground that municipal corporations have the right, from necessity, to establish the lines of their own possessions, and when once established, they are bound by them, which was entirely justified by the fact that Evans’ building had been located by the city surveyor, and upon lines previously established and built upon. Pecic, J., in Lane v. Kennedy, supra, commenting upon Cincinnati v. Evans, observes that the case was “rightly determined, but, as will be seen by a reference to the facts therein stated, it might with equal, if not greater propriety, have been placed upon the ground of an estoppel in pais on the part of the city authorities.” This is a recognition of the later, and apparently, the more generally accepted doctrine out-side of our own state, of the application of the rule of equitable estoppel in pais, rather than the statutory rule óf the statute of limitations. 2 Dillon, § 675. The doctrine of equitable estoppel has no place in the case we are considering. The language of this court, above quoted, from Cincinnati v. Evans, means, we suppose, simply that the-city’s claim could not be maintained, because the law-making power had seen fit to provide that an action for the recovery of the possession, etc., of lands, etc., can only be brought within twenty-one years after the cause of action shall have accrued.

Plaintiffs second ground of complaint is the cutting off of water which before had supplied the spring, and the destruction of the spring by draining it. It is not charged that this supply came from plaintiff’s lands. The inference is that it came by percolation through the earth in the vicinity of the spring. It is averred that the damage arose from the negligent construction of the sewer, and that, being unlawful because done in violation of the terms of the statute requiring that the money to pay the cost shall be in the chy treasury, and under an unconstitutional act intended to afford a way to raise the necessary money by issuing bonds, a right of action accrued to plaintiff for his damages. This claim must rest upon the proposition that plaintiff had a legal right to the use of the water percolating through the earth, and a like right to have maintained intact, the water of the spring itself. It is not insisted that the claim to the water was the subject of grant. Could the enjoyment by plaintiff and his predecessors in title for more than twenty-one years give such right?

The ownership of underground waters has been a prolific subject of discussion, and much difference of opinion has developed among text writers and judges. We are concerned only as to percolating waters. Upon this branch, the law, at least in Ohio, is settled to the effect that no right ex-' ists in the owner of one piece of land to receive percolation through the land of another, and that such a right cannot be acquired by prescription. The same rule must apply to a spring supplied by percolating waters. That is, an owner of land cannot, in the absence of grant or contract, deny to his neighbor the right to use his own land for legitimate purposes, though the direct effect be to drain the former’s spring, and it is not of consequence bow long tlie spring has been enjoyed. We regard these questions as entirely covered by the case of Frazier v. Brown, 12 Ohio St. 294, and the authorities there cited, and discussion of them here would be superfluous. From these rules it results that in water percolating through the earth under Center street, or under the surface of lands of others in the vicinity of the spring, the plaintiff had no ownership, nor had he a right to insist that they should flow as they had theretofore flowed. It follows that unless the case is affected by the fact, that at the time the contract was let the city did not have in the treasury money to pay the cost of construction, or by the attempt to act under a void statute in the raising of money, or by the charge of negligence in the construction of the sewer, there can be no right of recovery.

The legality or illegality of the city’s acts depends upon the construction of section 2702, Revised Statutes. This provides that no contract involving the expenditure of money shall be entered into, or ordinance for the appropriation of money passed, unless the clerk shall certify that the money required for the contract is in the treasury to the credit of fund, etc. We think the object and purpose of this section is apparent on its face in view of the mischief theretofore existing. Before its passage there was no adequate check upon municipal extravagance in the making of improvements, and the incurring of municipal debt. This act put a barrier in the way, and thus afforded some protection to the taxpayer. To give it such construction as to defeat that purpose, and bring about the opposite result, would be to ignore the main guide in the construction of statutes, viz: the intent of the law makers. Had the plaintiff, in due time, brought action as a citizen taxpayer to enjoin the work of building the sewer, no reason is perceived why the result desired might not have been reached. And if a violation of section 2702 did not create liability for negligence, certainly, as it seems to us, the fact that the city was proceeding to raise the money by an unconstitutional act of the legislature, could not have that effect. It was a mere incident. So long as the general power to devote the street to sewer purposes existed, the method of raising the money to pay the cost, while it might have been enjoined and thus prevented, could not create liability for negligence where none otherwise attached to the acts of the city. The general rule, that any person has a right to question the validity of a law whenever he is injuriously affected by its execution, is not denied, but it can have no application to the case at bar for the reason that it was the execution of the laws which gave to the city the general power to construct the sewer in Center street, which produced the damages of which plaintiff complains, and not that under whjch the city was endeavoring to raise money. So far as plaintiff’s complaint is concerned, therefore, the city was not proceeding illegally.

How is the case affected by the charge of negligence? Negligence, we suppose, necessarily implies a legal duty to use care. That is, the complainant must show that he had a legal right to demand care, and this, too, as to the particular matter complained of. Where there is no obligation of care or caution, there can be no actionable negligence. Railway v. Bingham, 29 Ohio St. 364. It has been well-said, that “negligence is not absolute nor intrinsic, but always relative to some circumstance of time, place, or person.” Needham v. Railroad, 37, Cal. 410. It would be immaterial, therefore, in this case, that the sewer was so faultily constructed as to admit of the outflow of sewage, to the damage of adjoining property, as that is not the damage complained of. We have already seen that the plaintiff had no right in the percolating waters cut off by the construction of the sewer, nor a right to have maintained intact the water of the spring. Consequently, he could not demand the exercise of care to protect those waters. The charge of negligence, therefore, so far as the same might affect them, whether as regards the flow of water into and through the sewer and trench, or the effect of blasting of rocks in the excavation for the sewer upon the waters in the earth of Center street, or in the lands of others in the vicinity of the spring, if proven, could not create liability against the city.

Attention is directed to Trowbridge v. Brookline, 144 Mass 139, where it was held that a town, which, under the Massachusetts statute, condemned land and constructed a sewer, whereby a well upon land not taken was made dry, the well being fed by water percolating through the soil, was liable to the owner of the well. The decision is distinctly placed, upon the provisions of the condemnation statute, which provides that compensation shall be made for damages sustained by any person, whether by taking his property, or injuring it in any manner, and is, upon the face of the statement, not authority in the case at bar.

We agree with the conclusion of the circuit court, that the charge given, and the refusals to charge, were alike immaterial, because no ground for recovery had been shown, and as a judgment will not be reversed for errror in the charge to the jury, where, upon the most favorable construction of the evidence, the complaining party had shown no right of recovery, the judgments below should be affirmed.

fiidgment accordingly.