author: Davis, j.

text:
    The Murdock-West Co. v. Logan et al.

      Od and gas lease—For certain time or as long as; oil found in paying quantities—Conditions of lease ambiguous—Question of rent payment—Interpretation of contracts—Damages—Lessor and lessee.

    1. An oil lease for and during the term of sixty days from the date thereof “and as much longer thereafter as oil or gas shall be found in paying quantities,” contained the following language: “The drilling of one well to be commenced on these premises within sixty days from the execution of this lease, unavoidable delays excepted, and in case of failure to commence drilling of a well within such time as herein specified, the parties of the second part agree to pay the parties of the first part, for such delay, the sum of fifty dollars per month from the time limited for completing such well, payable by'check in advance or directly to the party of the first part, and the parties of the first part agree to accept such sum as full consideration and payment for such delay until one well shall be completed unless this lease is surrendered before said payment is due. It is hereby expressly agreed that a failure to commence, prosecute and complete the drilling of any well or wells or to pay any rental hereinbefore mentioned within the time limited for the same shall render this lease null and void.” This language is ambiguous, and whether the payment of fifty dollars per month as therein stipulated may be construed as payment of rent, thereby extending the term of the lease, as claimed by the lessees, or whether it must be construed as a payment of liquidated damages for delay, as is claimed by the plaintiffs, is not decided; but on the hypothesis that the term was extended for sixty days in addition to the original term, the lessees could not hold over longer than such additional time unless they actually found and produced oil in paying quantities within that time. A finding of indications of oil or the existence of conditions which rendered it probable that oil in paying quantities would be found if the well were operated in a certain way, is not sufficient of itself to extend the term of the lease.
    2. The stipulation in the lease that the term shall continue “as much longer thereafter as oil or gas shall be found in paying quantities,” requires that oil or gas shall be actually discovered and produced in paying quantities within the term.
    3. Upon the hypothesis that the payment of fifty dollars per month, under the stipulations of the lease, was payment of rent, the failure of the lessees to pay fifty dollars for the month from April 22, 1900, to May 22, 1900, rendered their lease null and void from and after April 22, 1900.
    (No. 7999
    Decided February 2, 1904.)
    Error to the Circuit Court of Washington county. Rehearing.
    The plaintiff in error, a partnership, is a lessee from John Lightner and wife under a lease for operating and drilling for petroleum oil and gas, dated May 23, 1900; and this suit was instituted by the plaintiff in error to enjoin the defendants in error from operating under a prior lease for like purposes, dated December 22,1899. The court of common pleas granted a perpetual injunction as prayed for, against the defendants in error. On appeal, the circuit court found for the defendants, making a special finding of facts, and entered a decree thereon for the defendants. Other facts appear in the opinion.

      Messrs. McConica & Dwiggins; Mr. G. G. Middleswart and Mr. M. B. Paterson, for plaintiffs in error.

      Mr. A. D. Follett; Mr. A. Leo. Weil and Mr. Charles M. Thorp, for defendants in error.
   Davis, j.

The lease to the defendants in error, also defendants below, contained the following clause: “The parties of the second part, or their assigns, to have and to hold the said premises, for the said purpose only, for and during the term of sixty (60) days from the date thereof, and as much longer thereafter as oil or gas shall be found in paying quantities.” The defendants did not' commence to drill a well on the leased lands within sixty days from the date thereof and therefore no oil or gas was found within that time; so that if the rights of the defendants were to be determined solely by that clause, their lease expired on the twenty-second day of February, 1900. But the defendants claim that the term of their lease was extended to April 22, 1900, and that within that time oil in paying quantities was found which entitles them to a continuance of the lease thereafter so long as oil or gas shall be produced in paying quantities. The basis of this contention is the principle that when a lessee holds over after the expiration of the term of the lease, the lessor has the option to treat him as a trespasser or as a tenant under the terms of the original lease. The lessor, John Lightner, in this instance accepted payment from the defendants of fifty dollars on March 1, 1900, and fifty dollars on March 22, 1900, whereby, it is claimed, he treated the defendants as his tenants and extended the term of the lease to April 22,. 1900, “and as much longer thereafter as oil or gas shall be found in paying quantities.”

The plaintiffs maintain, on the other hand, that these payments were not received as rent, but that they are in the nature of liquidated damages for unavoidable delays in commencing and completing the drilling of a well on the leased lands. Gas Co. v. George, 161 Pa. St., 47, 51. The provisions of the lease which lead to these opposite propositions, are as follows: “The drilling of one well to be commenced on these premises within sixty (60) days from the execution of this lease, unavoidable delays excepted, and in case of failure to commence drilling of a well within such time as herein specified, the parties of the second part agree to pay the parties of the first part for such delay, the sum of fifty dollars per month from the time limited for completing such well, payable by check in advance or directly to the party of the first part, and the parties of the first part agree to accept such sum as full consideration and payment for such delay until one well shall be completed unless this lease is surrendered before said payment is due. It is hereby expressly agreed that a failure to commence, prosecute and complete the drilling of any well or wells or to pay any rental hereinbefore mentioned within the time limited for the same shall render this lease null and void.” The diversity of views as to the true meaning of this language and as to the legal effect of acts done in performance of it, is perhaps pardonable, for the language itself is ambiguous. The payment of fifty dollars per month would seem, from one point of view, to be spoken of as “rental hereinbefore mentioned,” and it is spoken of as “payment for snch delay,” that is the “unavoidable delays” previously mentioned. The “rental hereinbefore mentioned” may refer to the royalty of one eighth of the oil which should be produced and the payment of one hundred dollars per annum for each and every well from which gas should be sold, which are elsewhere and “hereinbefore mentioned.” But accepting the construction of the lease contended for by the defendants, if nevertheless “oil or gas in paying quantities” was not found within the term of the lease as extended to April 22, 1900, the right of the defendants to hold and operate upon the leased lands expired at that date. But the defendants say that the circuit court found that a well was drilled by the defendants and “that oil was found in paying quantities in said well on April 8, 1900,” the day before the pumping began. We think that this “finding” is a mere argumentative conclusion from the special findings of fact by the court, that it is inconsistent with and is unwarranted by the facts found, and that upon a review of the whole evidence there is no competent evidence to support it. The circuit court finds that the defendants on April 8, 1900, completed an oil well under their lease, “which was drilled through the oil bearing sand which underlay said tract of land, and from which oil was then being produced in paying quantities on premises adjoining said tract of land.” There is not a word in the testimony, nor in this finding, that oil was actually produced on the day the well was completed. It is further found that “after completing said well on April 8, 1900,” the defendants “pumped the same with the drilling machine which had drilled said well, commencing on the morning of April 9, 1900, until about noon on April 12, 1900, when they ceased pumping the same, and * * * that said well was not pumped again until June 1,1900, when it was pumped by means of a power, such pumping continuing until June 3, 1900,” at which time further pumping by the defendants was enjoined. The pumping in June was after the lessor had declared the lease void and after the plaintiffs had acquired their title, and the defendants were no doubt moved to do this pumping by the action of the lessor and the plaintiffs. But, with the exception of the finding “that oil was found in paying quantities in said well on April 8, 1900,” the day the well was drilled in and the day before the pumping began, we look in vain, in the findings of the circuit court or in the evidence, for anything which shows that oil was produced in paying quantities prior to April 22d, when the lease as extended by the payments of fifty dollars per each month would expire. The circuit court finds that the pumping in April, 1900, was for the purpose of testing the weli, and that “the results of such tests showed that said well would produce oil in paying quantities, as was then and there believed by the owners of said lease and the owner of said tract of land.” It is further found that the defendants “upon such test” ascertained “that such well would probably produce oil in paying quantities,” and further that the defendants, “having decided as a result of such test that such well would produce oil in paying quantities, determined to pump said well by means of a power,” etc. All this demonstrates that while the parties interested may have entertained a well-founded opinion as to the outcome of the well, oil in paying quantities had not yet been found, obtained or produced. In order to continue their léase beyond the stipulated time it was necess'ary for the lessees to -find oil in paying quantities. For this purpose it was not sufficient to complete a well having some indications of oil, dr a well which plight be developed into a well producing oil in paying quantities, but the lessees must actually' find oil in paying quantities and this is the same as obtaining and producing it in paying quantities. Cassell v. Crothers, 193 Pa. St., 359, 365, 367, 369. This the defendants did not do before April 22,1900, and their rights under the lease ended when they ceased to operate the well on April 12, 1900, and did not complete it to the point of producing oil in paying quantities within the term ending April 22, 1900. Detlor et al. v. Holland, 57 Ohio St., 492; Gas Co. v. Tiffin, 59 Ohio St., 420. Nor is this all. If the defendants were justified in believing and did believe, that the well could be developed into a well which would produce oil in paying quantities by the use of a power and they set about completing the well to that extent by that means, with the consent of the lessor, the obligation was upon them by their contráct to compensate the lessor for the unavoidable delay in doing so, by continuing to pay fifty dollars a month in advance; and upon the hypothesis that such payment was rent which would extend the original term of the lease, then by the express terms of their contract the failure of defendants to pay fifty dollars for the. month from April 22d to May 22d rendered the lease null and void. Lightner was thereafter at liberty to make a new lease; and the lease to the plaintiffs dated May 23, 1900, is valid.

Judgment of the circuit court reversed and judgment for plaintiffs.

Burket, C. J., Spear and Price, JJ., concur.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    The State v. Ferrell.

      Conduci of jury after casé submitted—Section 7312, Revised Statutes: —Cause is finally submitted—When jury enters upon its deliberations—And not at conclusion of charge of court—Court procedure.

    1. A cause is finally submitted to the jury, within the ^leaning of' section 7312, Revised Statutes, -at such time as the court directs the jury to enter upon its deliberations, and not necessarily at the conclusion of the charge of the court to the jury.
    2. Where, at the conclusion of the reading of the court's charge: the jurors are permitted to separate for the' purpose of the-noon meal, being at the time instructed that the cause has not then been finally submitted to them, and directed to return at. 1:00 P. M. and retire to the jury room for deliberation, and! being carefully admonished as to their conduct as provided ini said section, and upon their return at the hour named the indict--. ment, the court’s written charge and blank verdicts are for the: first time delivered to them, and they then retire to deliberate-upon their verdict, the cause will be held to have been finally-submitted at the hour of reassembling and not at the time o£ such separation, and in the absence of a showing that such separation has worked prejudice to the defendant the fact of: separation will not be ground for'a new trial.
    (No. 8195
    Decided February 2, 1904.)
    Error to the Circuit Court of Maricm county.
    At the April term, 1902, of the court of common, pleas of Marion, James H. Ferrell was convicted, under section 6815, Revised Statutes, of the crime of attempting to procure a miscarriage from which attempt the woman died, and was sentenced to two years in the penitentiary. The judgment of the courtinimposingsentencewas reversed by the circuit court, on the sole ground that “the court erred in permitting-the jury to separate after the case was submitted. ’ To this judgment of reversal the state brings error.,
    It appears by the undisputed evidence given at the. hearing of the motion for new trial that the evidence and arguments of counsel in the case were concluded shortly before noon of June 21st, and that the court then proceeded to charge the jury, the same being a written charge; that at its conclusion the court informed the jury that the cause was not then submitted to them, and then directed the jury not to have any -conversation either among themselves or with any one -else concerning the cause, nor allow any one to speak to them concerning the same; that they should not form or express any opinion about the case until it •should be finally submitted to them, and that they •should return to the court room at the hour of 1:0Q P. M., and retire to the jury room, elect one of their number foreman who should sign their verdict when found, when and at which last-named hour the cause would be finally submitted to them for deliberation. 'The jury did return at that hour, and immediately retired to the jury room to deliberate in charge of the sheriff,' who then handed them the indictment, the written charge of the court, the exhibits and the blank verdicts, none of which papers had before been received by any of the jury; that they thereupon proceeded to elect one of their number foreman, and there was no separation of the jury until after the verdict had been returned into open court, and the rsame read in the presence of the defendant and his counsel, and the jury thereupon discharged.

      Mr. Fred E. Guthery, prosecuting attorney, for plaintiff in error, cited and commented upon the following authorities:

      McHugh v. State, 42 Ohio St., 154; McGuire v. State, 2 Circ. Dec., 318; 3 C. C. R., 551; Umbenhauer v. State, 2 Circ. Dec., 606; 4 C. C. R., 378; Bouvier Law Dict, vol. 1, p. 257, subdiv. under “Charge”; Sargent v. State, 11 Ohio, 474; State v. Engle, 13 Ohio, 492; Bergin v. State, 31 Ohio St., 111; Parker v. State, 18 Ohio St., 88; Weis v. State, 22 Ohio St., 486; Cantwell v. State, 18 Ohio St, 477; Wagner v. State, 42 Ohio St., 537; Railway Co. v. Thurstin, 44 Ohio St., 529; Hunt v. Commonwealth, 12 S. W. Rep., 127; Barrow v. State, 5 S. E. Rep., 64; State v. Avery, 113 Mo., 475; State v. Orrick, 106 Mo., 111; State v. Payton, 90 Mo., 220; State v. Collins, 86 Mo., 250; People v. Bemmerly, 98 Cal., 299; Territory v. Hart, 7 Mont., 489; Territory v. Nichols, 3 N. Mex., 76; Cooper v. State, 120 Ind., 377; Drew v. State, 124 Ind., 9; Masterson v. State, 43 N. E. Rep., 138; Beyerline v. State, 45 N. E. Rep., 772; State v. Bellow, 42 La. Ann., 586; Blyew v. Commonwealth, 15 S. W. Rep., 356; Bailey v. State, 26 Tex. App., 706; Boyett v. State, 26 Tex. App., 689; Riley v. State, 95 Ind., 446; State v. Richmond, 42 La. Ann., 299; State v. Garig, 43 La. Ann., 365; State v. Steifel, 106 Mo., 129; State v. Pancoast, 67 N. W. Rep., 1052; Scovern v. State, 6 Ohio St., 288; State v. Dougherty, 1 Ohio Dec. (Re.), 37; Dougherty v. State, 1 Ohio Dec. (Re.), 57; Johnson v. State, 57 Ohio St., 643; 38 W. L. B., 235; Cullers, Admr., v. Railway Co., 52 Ohio St., 651; 33 W. L. B., 90; Armleder v. Lieberman, 33 Ohio St., 77; State v. Garrison, 34 Pac. Rep., 751; Davis v. State, 15 Ohio, 83; State v. Cuppet, 2 Re., 78; 1 W. L. M., 329; Cantwell v. State, 18 Ohio St. (dis. opin.), 485; secs, 5192, 7300, 7312, Rev. Stat (Code, sec. 164, 60 O. L., 312.)

      Mr. Chas. H. Garberson and Messrs. Scofield, Dur■fee & Scofield, for defendant in error, cited and coxnxmented upon the following authorities:

      Cantwell v. State, 18 Ohio St., 477; Sargent v. State, 11 Ohio, 472; State v. Engle, 13 Ohio, 490; Bergin v. State, 31 Ohio St., 111; Parker v. State, 18 Ohio St., 89; Weis v. State, 22 Ohio St., 489; Wagner v. State, 42 Ohio St., 540; Railway v. Thurstin, 44 Ohio St., 528; State v. Avery, 21 S. W. Rep., 193; State v. Orrick, 17 S. W. Rep., 176; State v. Peyton, 90 Mo., 220; State v. Collins, 86 Mo., 250; People v. Bemmerly, 98 Cal., 299; Territory v. Hart, 7 Mont., 489; Territory v. Nichols, 2 Pac. Rep., 78; Cooper v. State, 22 N. E. Rep., 320; Masterson v. State, 43 N. E. Rep., 138; Beyerline v. State, 45 N. E. Rep., 772; Blyew v. Commonwealth, 15 S. W. Rep., 356; Bailey v. State, 26 Tex. App., 706; Boyett v. State, 26 Tex. App., 689; Riley v. State, 95 Ind., 446; McHugh v. State, 42 Ohio St., 154; State v. Richmond, 42 La., 299; State v. Garig, 43 La., 365; State v. Steifel, 106 Mo., 129; State v. Pancoast, 67 N. W. Rep., 1052; secs. 5192, 5193, 7300, 7312, 7350, Rev. Stat.; 66 O. L., 309; 65 O. L., 190.
   Spear, J.

Whether or not the cause had beem finally submitted to the jury at the time that body was permitted to separate at the noon hour is the important question in the case. Primarily .it is a. question of fact, but the actual facts not being in dispute it becomes a question of law.

Without doubt it is the policy of our statutes that, the jurors to whom shall be committed the questiom of the guilt or innocence of one charged with crime,., should be prevented from receiving impressions during the trial calculated to influence the verdict, except such as are legitimately conveyed to them by the-evidence, the arguments of counsel, and the charge of " the court. Hence our.statute, section 73.12,, provides; that: “When the case is finally submitted, the jurors must be kept together in some convenient place, under the charge of an officer, until they agree upon a verdict, or are discharged by the court; the officer having them in charge shall not suffer any communication to be made to them, nor make any himself, except to ask them if they have agreed upon a verdict, unless by order of the court; * * * and if the jurors be permitted to separate during the trial, they should be admonished by the court that it is their duty not to converse with, nor suffer themselves to be addressed by, any person, nor to listen to any conversation on the subject of the trial, nor to form or express an opinion thereon, until the cause is finally submitted to them.” This section, as it stood in the criminal code (section 164), prohibited the separation of jurors in the trial of felonies after being sworn until discharged, and in the trial of misdemeanors separation was forbidden after the charge of the court until discharged. The clear implication is that, by the amendment now embodied in the section above cited, it was intended to permit separation in all criminal cases during trial, and before submission, coupled with the admonition to the jury above stated, and that such separation would not naturally tend to subject the jury to improper influences, nor in any way prevent a fair trial. Another feature of the amendment is of importance in this connection. “After receiving the charge of the court,” is the concluding phrase of the old section; “until the cause is finally submitted to them,” is the concluding phrase of the section as it now stands, and the entire section (7312) hinges on the condition with which the section begins, viz.: that the case has been- “finally submitted.” Another implication from this same section would seem to be fairly clear, and that is that the giving of the charge-of the court might not in all cases afford the test of' whether or not the case had been finally submitted. It is true that a preceding section (7300) provides; that at the conclusion of the evidence either party-may request instructions to the jury on points of law to be given before argument, and it is suggested that-these instructions might be regarded as a charge and that this induced the changed phraseology of the-amendment. But this provision was also embodied in the criminal code (section 151), and remains substantially the same. So that, the fair inference is,, that the charge referred to in the code is the general charge which is to be given immediately after argument. This inference is strengthened when we remember that it has been customary in our courts from time immemorial for the court, at the end of' the argument, or of the evidence where no argument is had, to give a general charge to the jury, and our legislation respecting the conduct of trials always has. been, and we think should be, construed in the light of the practice which has prevailed. Hence, when the old statute forbade separation of the jury after-receiving the charge of the court, it was this general charge which was referred to, and were that language-in the present law no doubt would exist as to the requirement to keep the jury together after receiving the charge until discharged.

It is the contention of defendant in error that while-the language of the old and the new is different, yet there is no difference in the meaning; therefore that the separation of the jurors was a violation of the mandatory provision of the statute, a statute enacted to protect- the rights of persons charged with crime,, and prejudice will be conclusively presumed; hence-the error is fatal to the judgment.

Several objections occur to this proposition. If it had been the purpose of the lawmakers to provide that the giving of the judge’s charge should invariably' be regarded as a final submission, no reason whatever’ is apparent for the change of the statute. The former rule was a simple one, easily understood and as easily followed. For some reason the change was deemed important. We think the natural inference is that it was intended to remove the iron-clad rule and leave-some discretion in the trial judge as to when he would finally submit the case. The statute requires the delivery to the jury of the written charge when a written) charge has been requested, and it is usual to deliver also the indictment, blank verdicts, and such exhibits-as may be put in evidence, and the submission would not be fully completed until that had been done. Nor does it follow, though this separation be deemed an irregularity, that prejudice to the rights of thé defendant is to be presumed. We suppose the rule is well settled that where the failure to observe a statutory requirement naturally works prejudice to* a party, the burden is not on him to show that he was; in fact prejudiced. It is observed in McHugh v. State,. 42 Ohio St, 154, opinion by Okey, J., that: “Ordinarily, if a statutory provision or principle of the-common law, applicable to the case, is disregarded on the trial of a person charged with crime, where its enforcement would tend to preserve his right to an impartial trial, he.is to be'regarded as prejudiced in his substantial rights, as he is always to be deemed so prejudiced where he is deprived of a constitutional' guaranty designed for the protection of the person— still, if there has been a failure to observe some mere: matter of form, where the officer or other person ..charged with the duty acted in good faith, the court must determine whether the failure to observe such form tended in any way to deprive the accused of a-fair trial, and whether, looking to the statutory provisions relating to criminal procedure, it was intended' that such failure should necessarily require a reversal of the judgment.” But in this, case the. jurors, by virtue of the statute, might properly be-permitted to separate before the evidence and arguments had been, concluded, and. this permission of the statute is on the assumption that such a separation will not naturally work prejudice. If this be true, how can it be affirmed that a separation at the. •conclusion of the charge, the jurors being instructed •that they had not yet received the cáse finally, as they In fact had not, and being carefully cautioned, would naturally work prejudice to the defendant? We -think the assumption unwarranted. The situation would be essentially different if that body had entered' npon its deliberations, and there is manifestly strong Teason .for the statutory requirement that during deliberation they be kept together.

Affidavits of the jurors were given in evidence all •showing that they had obeyed the court’s caution, and •tending to. rebut any presumption of prejudice. We do not regard this evidence as relevant, there being no issue as to prejudice, although it is somewhat comforting.

In the days when courts were prompted, because •of the rigidity of the criminal law, to look for technicalities in order to protect human rights, it was natural perhaps to givp strained construction to language in order to secure that object. But in this (enlightened day there is no occasion for unnatural scrutiny. A reasonable construction of language we think more in consonance with the spirit of our law.

It is our conclusion that, giving fair construction to the statute, the evidence shows that the case was not finally submitted until the return of the jury at one P. M., and the indictment, written charge, and other papers then delivered. -

The judgment of the circuit court will, therefore, be reversed and that of the common pleas affirmed.

Davis, Shaück, Price and Crew, JJ., concur.


text:
    No. 7819.
    Linke v. Walcutt et al.
    (Decided September 22, 1903.)
    Error to Circuit Court of Franklin county.

      Mr. J. D. Sullivan, for plaintiff in error.

      Mr. Frank Rathmell and Mr. A. H. Johnson, for defendants in error.
   Judgment affirmed.

Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7852.
    The State ex rel. Cole v. Adams, Auditor.
    (Decided September 22, 1903.)
    Error to Circuit Court of Columbiana county.

      Mr. E. B. Dillon and Mr. L. P. Metzger, for plaintiff in error.

      Mr. J. PL. Brookes, for defendant in error.
   Judgment affirmed.

Burket, C. J., Shauck, Price and Crew, JJ., concur.


text:
    No. 7865.
    Goodwin et al. v. White.
    (Decided September 22, 1903.)
    Error to Circuit Court of Clark county.

      Mr. Frank W. Geiger and Messrs. Hagan & Kunkle, for plaintiffs in error.

      Mr. J ohn G. Bassett, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7812.
    The Cincinnati, Hamilton & Dayton Railway Co. v. The City of Lima.
    (Decided September 29, 1903.)
    . Error to Circuit Court of Allen county.

      Mr. R. D. Marshall; Mr. I. R. Longsworth and Mr. A: McL. Marshall, for plaintiff in error.

      Messrs. Wheeler <& Bentley and Mr. D. 0. Henderson, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Crew, JJ., concur.


text:
    No. 7924.
    Johns, Admx., v. The Cleveland, Cincinnati, Chicago & St. Louis Railway Co.
    (Decided September 29, 1903.)
    Error to Circuit Court of Cuyahoga county.

      Mr. J ohn 0. Winship, for plaintiff in error.

      Mr. E. A. Foote, for defendant in error.
   Judgment affirmed.

Speak, Davis,- Shauck, Price and Crew, JJ., concur.


text:
    No. 7926.
    Spurrier v. Martin and Sisk, Exrs.
    (Decided September 29, 1903.)
    Error to Circuit Court of Morgan county.

      Messrs. Kennedy & Tannehill and Messrs. Barry. & Finley, for plaintiff in error.

      Mr. Ghas. H. Fonts and Mr. M. E. Danford, for defendants in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Spear, Davis, Shauck and Price, JJ., concur.

Crew, J., not sitting.


text:
    No. 7929.
    Sullivan, Guardian, et al. v. Burger et al.
    (Decided September 29, 1903.)
    Error to Circuit Court of Hamilton county.

      Messrs. Shay & Gogan, for plaintiffs in error.

      Messrs. Goebel & Bettinger, for defendants in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7932.
    Turpin v. Hagerty, Recorder.
    (Decided September 29, 1903.)
    Error to Circuit Court of Hamilton county.

      Messrs. Goebel & Bettmger, for plaintiff in error.

      Mr. J. Shroder and Mr. 8. B. Deal, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 8096.
    State ex rel. Sheets, Attorney General, v. The Cincinnati & Eastern Electric Railway Co.
    (Decided September 29, 1903.)
    Quo Warranto.

      Mr. J. M. Sheets, attorney general; Mr. G. H. Jones, assistant attorney general, and Mr. F. G. Rector, for plaintiff in error.

      Mr. E. G. Kinkead and Mr. H. M. Daugherty, for defendants in error.
   Demurrer to supplemental answer overruled and petition dismissed on the ground that quo warranto is not the proper remedy, State ex rel. v. Railroad Co., 50 Ohio St., 239.

Burkht, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 8185.
    Jones v. Jones.
    (Decided September 29, 1903.)
    Error to Circuit Court of Scioto county.

      Mr. Nelson W. Evans and Mr. Frank W. Moulton, for plaintiff in error.

      Mr. James 8. Thomas and Messrs. Bannon & Ban-non, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 8186.
    Jones v. Jones.
    (Decided September 29, 1903.)
    Error .to Circuit Court of Scioto county.

      Mr. Nelson W. Evans and Mr. Frank W. Moulton, for plaintiff in error.

      Mr. James 8. Thomas and Messrs. Bannon & Ban-non, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7829.
    Halker v. Trustees of Ottawa Township.
    (Decided October 6, 1903.)
    Error to Circuit Court of Putnam county.

      Messrs. Bailey & Bailey, for plaintiff in error.

      Messrs. Sir aman <& Malone, for defendants in error.
   Judgment affirmed.

Burket, C. J., Spear, Shauck, Price and Crew, JJ., concur.


text:
    No. 7988.
    The Baltimore & Ohio Railroad Co. v. Miller.
    (Decided October 6, 1903.)
    Error to Circuit Court of Richland county.

      Mr. J. E. Collins and Messrs. Cummings, McBride. é Wolfe, for plaintiff in error.

      Mr. E. T. Manner and Mr. J. M. Reed, for defendant- in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and¡ Crew, JJ., concur.


text:
    No. 8336.
    The Pennsylvania Co. v. The State ex rel. Gallinger.
    (Decided October 6, 1903.)
    Error to Circuit Court of Crawford county.

      Messrs. Wheeler & Bentley, for plaintiff in error.

      Messrs. Finley & Gallinger, for defendant in error.
   Judgment reversed; demurrer to answer overruled; demurrer to petition sustained, and petition dismissed on authority of the P., C., C. & St. L. Ry. Co. v. Cox, 55 Ohio St., 497, and the State ex rel. v. The P., C., C. & St. L. Ry. Co., 68 Ohio St., 9.

Burket, O. J., Spear, Davis, Shauck, Price and. Grew, JJ., concur.


text:
    No. 7828.
    Commissioners of Hamilton County v. Fasold.
    (Decided October 13, 1903.)
    Error to Circuit Court of Hamilton county.

      Mr. G. C. Wilson, county solicitor, and Messrs 0.. J. Cosgrove and O. B. Jones, assistant county solicitors, for plaintiff in error.

      Messrs. J. J. GMdden;. J. B. Von Seggern and' Messrs. Cormany & Cormany, for defendant in error-
   judgment' affirmed.

Burket, C. 'J., Spear and Crew, JJ., concur. -


text:
    No. 7837.
    The State v. Shell.
    (Decided October 13, 1903.)
    Error to Circuit Court of Perry county.

      Messrs. J. M. Sheets, attorney general; J. E. Todd and S. W. Bennet, for plaintiff in error.

      Messrs. Kihler & Kihler, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis, Price and Crew,. JJ., concur.


text:
    No. 7863.
    Conner v. Conner.
    (Decided October 13, 1903.)
    Error to Circuit Court of Guernsey county.

      Messrs. J. H. Maelcey and J. A. Troette, for plaintiff in error.

      Mr. Fred L. Bosemond, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7884.
    Baxter et al. v. Hewitt et al.
    (Decided October 13, 1903.)
    Error to Circuit Court of Richland county.

      Messrs. Bruclcer & Cummins, for plaintiffs in error.

      Messrs. Jenner & Weldon, for defendants in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7999.
    The Murdock-West Co. v. Logan et al.
    (Decided October 13, 1903.)
    Error to Circuit Court of Washington county.

      Messrs. MeConiea & Dmggins and Mr. C. C. Middleswart, for plaintiff in error.

      Messrs. A. D. Follett; A. L. Weil and G. M. Thorp, for defendants in error.
   Judgment affirmed.

Shauck, Price and Crew* JJ., concur.

Burket, C. J., and Davis, J., dissent.


text:
    No. 7934.
    Sauer v. Sauer.
    (Decided October 13, 1903.)
    Error to Circuit Court of Hamilton county.

      Messrs. Eeilher & Eeilher and Mr. Ellis B. Gregg, for plaintiff in error.

      Mr. P. E. Eumler and Mr. Walter A. DeGamp, for defendant in error.
   Judgment affirmed on authority of Pretzinger v. Pretzinger, 45 Ohio St., 452.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 8199.
    Doyle, Admr., v. The Cincinnati, Hamilton & Dayton Railway Co.
    (Decided October 13, 1903.)
    Error to Circuit Court of Jackson county.

      Mr. E. G. Powell and Mr. J. K. McGlung, for plaintiff in error.

      Messrs. B. D. Marshall; A. E. Jacobs and A. MoL. Marshall, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 8204.
    The Wellston Coal Co. v. Smith.
    (Decided October 13, 1903.)
    Error to Circuit Court of Jackson county.

      Mr. J. M. McGillivray, for plaintiff in error.

      Messrs. E. C. Powell; G. G. McCormick and E. E„. Eubanks, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 8222.
    The City of Toledo v. Older.
    (Decided October 13 1903.)
    Error to Circuit Court of Lucas county.

      Messrs. Denman & Friedman, for plaintiff in error:

      Mr. P. G. Prentiss and Messrs. Beney & Johnson, foY defendant in error.
   Jndgment affirmed.

Spear, Shauck and Crew, JJ,, concur.


text:
    No. 8228.
    Jones v. Jones et al.
    (Decided October 13, 1903.)
    Error to Circuit Court of Butler county.

      Mr. E. W. Kittredge; Messrs. Andrews & Morey andi Messrs. Bhotts & Millikin, for plaintiff in error.

      Mr. Alex. F. Hume, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis, Shauck and Price, JJ., < concur.


text:
    No. 8003.
    Henry v. Franks et al.
    (Decided October 20, 1903.)
    '.Error to Circuit Court of Wood county.

      Messrs. Baldwin & Harrington and Mr. 8. P. Harrison, for plaintiff in error.

      Mr.-James ®. Troup, for defendant in error.
   Judgment ¡affirmed.

jBurket, »'C. -3.., Davis and Price, JJ., concur.


text:
    No. 8020.
    King et al. v. The Toledo Loan Co. et al.
    (Decided October 20, 1903.)
    Error to Circuit Court of Lucas county.

      Mr. A. W. JDdkert and Mr. John A. King, for plain-stiffs in error.

      Messrs. King Tracy and Mr. Samuel N. Young, (for defendants in error.
   Judgment affirmed.

-Burket, (C. J., Davis and Price, JJ., concur.


text:
    No. 8032.
    The Eureka Fire & Marine Insurance Co. et al. v. Gray.
    (Decided October 20, 1903.)
    Error to Circuit Court of Ashtabula county.

      Messrs. Hóyt & Munsell, for plaintiffs in error.

      Mr. Edward P. Hall and Messrs. Perry & Roberts,. for defendant in error.
   Judgment affirmed.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 8038.
    Hicks, Admx., v. Weir, Exr.
    (Decided October 20, 1903.)
    Error to Circuit Court of Hamilton county.

      Messrs. Campbell & ClenDening, for plaintiff in-error.

      Mr. Laiorence Maxwell, Jr., and Mr. Judson Harmon, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 8048.
    Head v. Chesbrough.
    (Decided October 20, 1903.)
    Error to Circuit Court of Lucas , county.

      Messrs. King & Tracy, for plaintiff in error.

      Mr, Clayton W. Everett, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 8264.
    The Eclipse Stove Co. v. Kiner.
    (Decided October 20, 1903.)
    Error to Circuit Court of Richland county.

      Messrs. Cummings, McBride & Wolfe, for plaintiff in error.

      Messrs. Kerr & La Dow, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur;.


text:
    No. 8065.
    Reily, Widow, etc., v. Whiteman et al.
    (Decided October 20, 1903.)
    Error to Circuit Court of Hamilton county..

      Messrs. Johnson & Levy, for plaintiff in error. ..

      Messrs. Coffey, Mallon, Mills & V or deni) erg, for defendants in error. ""
   Judgments of the circuit court and of the common pleas court reversed, and cause remanded on authority of Yetzer v. Thoman, 17 Ohio St., 130, and McAllister v. Hartzell, 60 Ohio St., 69.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 8078.
    Faurot v. The Woodland Avenue Savings & Loan Co. et al.
    (Decided October 20, 1903.)
    Error to Circuit Court of Defiance county.

      Mr. J. M. Dawson, for plaintiff in error.

      Messrs. Kline, Garr, Tolies & Goff, for defendants ;in error.
   Judgment affirmed.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 8106.
    Shrader, Admr., v. Downer, Exr., et al.
    (Decided October 20, 1903.)
    Error to Circuit Court of Licking county.

      Messrs. G. & G. H. Follett, for plaintiff in error.

      Mr. Samuel M. Hunter and Mr. Jolm M. Swartz, for •defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 8338.
    The City of Cincinnati et al. v. Korf.
    (Decided October 20, 1903.)
    Error to Circuit Court of Hamilton county.

      Mr. G. J. Hunt and Mr. Albert H. Morrill, for plaintiffs in error.

      Mr. Theo. Horstman and Mr. G. H. Kattenhorn, for defendant in error.
   Judgment reversed on authority of Shoemaker v. Cincinnati, 68 Ohio St., 603.

Burket, C. J., Spear, Shauck, Price, Davis and Crew, JJ., concur.


text:
    No. 7973.
    Hamm v. Wilson et al.
    (Decided October 27, 1903.)
    Error to Circuit Court of Ross county.

      Mr. John Logan; Mr. Seym,our Cunningham and Mr. F. P. Einton, for plaintiff in error.

      Mr. E. W. Woodrmo, for defendants in error,
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7990.
    Cooper v. Reiter.
    (Decided October 27, 1903.)
    Error to Circuit Court of Franklin county.

      Messrs. Donaldson & Tussing, for plaintiff in error.

      Mr. Edward L. Tcuylor, Jr.; Mr. Augustus T. Seymour and Mr. Karl T. Weber, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 7991.
    Bick v. Reiter.
    (Decided October 27, 1903.)
    Error to Circuit Court of Franklin county.

      Messrs. Donaldson & Tussing, for plaintiff in error-

      Mr. Edward L. Taylor, Jr.; Mr. Augustus T. Seymour and Mr. Karl T. Weber, for defendant in error-
   judgment affirmed.

Btjrket, C. J., Davis and Price, JJ., concur.


text:
    No. 8047.
    Myers v. Weber et al.
    (Decided October 27, 1903.)
    Error to Circuit Court of Williams county.

      Messrs. Boothman & Newcomer and Messrs. Conway £• Dujfey, for plaintiff in error.

      Mr. John M. Killits, for defendants in error.
   Judgment affirmed.

Burket, C. J., Davis, Shauck, Price and Crew,. JJ., concur.


text:
    No. 8052.
    The Hamilton, Glendale & Cincinnati Traction Co. v. Duemer.
    (Decided October 27, 1903.)
    Error to Circuit Court of Butler county.

      Messrs. Burch & Johnson and Mr. John W. Warrington, for plaintiff in error.

      Messrs. Shepherd & Shaffer, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 8073.
    Jackman et al. v. Jackman.
    (Decided October 27, 1903.)
    Error to Circuit Court of Cuyahoga county.

      Messrs. Foran & McTighe; Mr. J. J. McCormick and Messrs. Brinsmade & Armstrong, for plaintiffs in error.

      Messrs. Dawley & Aleáis and Messrs. James M. é Walter F. Brown, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.

Spear, Shauck and Crew, JJ., dissent.


text:
    No. 8080.
    Dickson v. Tom et al.
    (Decided October 27, 1903.)
    Error to Circuit Court of Muskingum county.

      Mr. S. M. Winn and Mr. John C. Bassett, Jr., for plaintiff in error.

      Mr. Frank E. Southard, for defendants in error.
   Judgment affirmed.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 8098.
    Walton v. City of Toledo.
    (Decided October 27, 1903.)
    Error to Circuit Court of Lucas county.

      Messrs. Southard & Southard and Mr. Chas. F. Watts, for plaintiff in error.

      Mr. J. M. Sheets, attorney general; Mr. M. R. Brailey, city solicitor, and Mr. Frank M. Sala, special counsel, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 8099.
    Jackman v. The City of Toledo.
    (Decided October 27, 1903.)
    Error to Circuit Court of Lucas county.

      Messrs. Southard & Southard and Mr. Chas. F. Watts, for plaintiff in error.

      Mr. J. M. Sheets, attorney general; Mr. M. R. Brailey, city solicitor, and Mr. Frank M. Sala, special counsel, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 7978.
    Cullom v. The City of Cincinnati.
    (Decided November 10, 1903.)
    Error to Circuit Court of Hamilton county.

      Mr. Edward M. Ballard, for plaintiff in error.

      Mr. Charles J. Hunt; Mr. John V. Campbell and Mr. Albert H. Morrill, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 8010.
    Haskell v. Brodhead.
    (Decided November 10, 1903.)
    Error to Circuit Court of Franklin county.

      Mr. H. M. Daugherty; Mr. D. B. Sharp and Messrs. Bailey & Bailey, for plaintiff in error.

      Mr. Thomas E. Powell, for defendant in error.
   Judgment affirmed.

Burket, O. J., Davis, Price and Crew, JJ., concur.


text:
    No. 8012.
    Bode v. Keck et al.
    (Decided November 10, 1903.)
    Error to Circuit Court of Hamilton county.

      Messrs. Goebel & Bettinger, for plaintiff in error.

      Messrs. Jones & James, for defendants in error.
   Judgment of the circuit court reversed and judg' ment of the court of common pleas affirmed.

Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 8419.
    The State ex rel. v. The Toledo Railway & Terminal Co.
    (Decided November 10, 1903.)
    Error to Circuit Court of Lucas county. '

      Mr. B. A. Hayes, for plaintiff in error.

      Mr. J. K. Hamilton; Mr. Clarence .Brown and Messrs. King é Tracy, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 7807.
    The Ohio & Pennsylvania Coal Co. v. House, Admr.
    (Decided November 17, 1903.)
    Error to Circuit Court of Columbiana county.

      Messrs. Billingsley & darle, for plaintiff in error.

      Mr. P. M. Smith; Mr. L. C. Moore and Messrs. Potts & Moore, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7949.
    The State v. Bishop et al.
    (Decided November 17, 1903.)
    Exceptions to the Court of Common Pleas of Butler county.

      Mr. Warren Gard, prosecuting attorney, for plaintiff in error.

      Mr. John F. Neilan and Mr. Allen Andrews, for defendants in error.
   Exceptions overruled. Pees to counsel $75.

Burket, C. J., Spear, Davis, Shauck, Price and Orew,- JJ., concur.


text:
    No. 7951.
    The State v. Bailey.
    (Decided November 17, 1903.)
    Error to Circuit Court of Pickaway county.

      Mr. Irvin F. Snyder, for plaintiff in error.

      Mr. Chris. A. Weldon, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7762.
    Snyder v. Coates.
    (Decided November 24, 1903.)
    Error to Circuit Court of Hancock county.

      Mr. Geo. F. Pendleton, for plaintiff in error.

      Messrs. Blackford & Blackford, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 7980.
    Wehrmann, Exrx., v. The Knights Templars & Masonic Mutual Aid Association et al.
    (Decided November 24, 1903.)
    Error to Circuit Court of Hamilton county.

      Messrs. Kelley & Hauck, for plaintiff in error.

      Messrs. Robertson & Buchwalter, for defendants in error.
   Judgments of. the lower courts reversed, and judgment for plaintiff in error on authority of The State National Bank v. Esterly, Receiver, 69 Ohio St., 24.

Burket, C. J., Spear, Davis and Price, JJ., concur.


text:
    No. 8026.
    Sater et al. v. Robbins et al.
    (Decided November 24, 1903.)
    Error to Circuit Court of Hamilton county.

      Mr. Milton Sater and Messrs. Follett, Kelley & Follett, for plaintiffs in error.

      Messrs. Paxton & Warrington, for defendants in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 8130.
    Corbet v. Fent et al.
    (Decided November 24, 1903.)
    Error to Circuit Court of Putnam county.

      Messrs. Baily & Baily and Mr. Ben L. Griffiths, for-plaintiff in error.

      Messrs. Watts & Moore and Messrs. Creamer &: Creamer, for defendants in error.
   Judgment affirmed.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 8161.
    Rector, Trustee, v. The Commercial National Bank.
    (Decided November 24, 1903.)
    Error to Circuit Court of Franklin county.

      Messrs. Pugh & Pugh and Mr. Thomas E. Steele,. for plaintiff in error.

      Mr. F. F. D. Albery, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Shauck, JJ., concur.

Price, J., dissents.


text:
    No. 8162.
    Rector, Trustee, v. The City Deposit Bank Co.
    (Decided November 24, 1903.)
    Error to Circuit Court of Franklin county.

      Messrs Pugh & Pugh; Mr. Thomas. E. Steele andi Mr. Fred C. Rector, for plaintiff in error.

      Messrs. Outhwaite, Linn & Thurman, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck and Crew, •JJ., concur.


text:
    No. 8168.
    The German Fire Insurance Co. v. Yates.
    (Decided November 24, 1903.)
    Error to Circuit Court of Lawrence county.

      Messrs. Johnson & Corn, for plaintiff in error.

      Mr. J. 0. Yates, for defendant in error.
   Judgment affirmed.

•Spear, Shauck and Crew, JJ., concur.


text:
    No. 8249.
    Shaw v. French, Treas., et al.
    (Decided November 24, 1903.)
    Error to Circuit Court of Hamilton county.

      Mr. Charles W. Baker, for plaintiff in error.

      Messrs. Ampt, Ireton, Collins & Schoenle, county solicitors, for defendants in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 8324.
    Drake et al. v. The State of Ohio.
    (Decided November 24, 1903.)
    Error to Circuit Court of Union county.

      Mr. W. T. Hoopes; Mr. Geo. B. Olcey and Mr. Edw. L. Hyneman, for plaintiffs in error.

      Mr. J. M. Sheets, attorney general, and Mr. J. L. Hameron, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Siiauck, Price and ■Crew, JJ., concur.


text:
    No. 7838.
    The State ex rel. Willis v. Higgins et al.
    (Decided December 1, 1903.)
    Error to Circuit Court of Jackson county.

      Mr. Elmer G. Powell, for plaintiff in error.

      Mr. John T. Moore; Mr. John Harper; Mr. S. F. White and Messrs. Hogan & McFarland, for defendants in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Price and Crew, JJ., concur.


text:
    No. 7942.
    The City of Cleveland v. Etzensperger & Orschak.
    (Decided December 1, 1903.)
    Error to Circuit Court of Cuyahoga county.

      Mr. M. W. Beaoom and Messrs. Baker, Payer, Gage .<£ Carey, for plaintiff in error.

      Mr. Poppleton and Messrs. Billman & Billman, for defendant in error.
   Judgment of the circuit court affirmed.

Burket, C. J., Spear, Price and Crew, JJ., concur.


text:
    No. 7953.
    The Union Savings Bank & Trust Co. v. The Central Trust and Safe Deposit Co., Admr., et al.
    (Decided December 1, 1903.)
    Error to Circuit Court of Hamilton county.

      Mr. Howard Douglass and Mr. Geo. W. Harding, for plaintiff in error.

      Mr. Charles B. WiVby, for defendants in error.
   Judgment affirmed.

Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 8022.
    The Lima Electric Light & Power Co. v. Antrim, Admr.
    (Decided December 1, 1903.)
    Error to Circuit Court of Allen county.

      Messrs. Richie & Richie and Mr. W. H. Leete, for’ plaintiff in error.

      Messrs. Motter, Mackenzie & Weadock and Messrs.. GoeJce & Hoskins, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price andi Crew, JJ., concur.


text:
    No. 8203.
    Longanecker et al. v. The Commissioners of Darke County et al.
    (Decided December 1, 1903.)
    Error to Circuit Court of Darke county.

      Mr. Martin B. Trainor, for plaintiffs in error.

      Messrs. Meeker & Gasldll and Messrs. Anderson, Bowman & Anderson, for defendants in error.
   Judgment affirmed.

Burket, C. J., Shauck and Price, JJ., concur.


text:
    No. 8371.
    The Lake Shore & Michigan Southern Railway Co. v. Hotchkiss.
    (Decided December 1, 1903.)
    Error to Circuit Court of Cuyahoga county.

      Messrs. Brewer, Cook & McGowan, for plaintiff in error.

      Messrs. Kline, Carr, Tolies & Goff, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7954.
    Winland v. The State ex rel. Zitzman et al.
    (Decided December 8, 1903.)
    Error to Circuit Court of Monroe county.

      Messrs. Hamilton & Matz, for plaintiff in error.

      Messrs. Mallory & Sears; Mr. W. E. Moore; Mr. F.. A. Jeffers; Mr. E. L. Lynch and Mr. F. W. Ketterer,, for defendants in error.
   Judgment affirmed. Cross-petition not considered because not printed.

Spear, Davis, Shauok, Price and Crew, JJ., concur.


text:
    No. 7959.
    The Humphreys Manufacturing Co. v. Kennedy, etc.
    (Decided December 8, 1903.)
    Error to Circuit Court of Richland county.

      Messrs. Kerr & LaDow, for plaintiff in error.

      Messrs. Cummings, McBride & Wolfe and Messrs~ Briclcer cG Workman, for defendant in error.
   Judgment of the circuit court reversed and that of the common pleas affirmed.

Spear, Davis, Shauok, Price and' Crew, JJ., concur.


text:
    No. 7961.
    The Findlay, Ft. Wayne & Western Railway Co. v. Kindell.
    (Decided December 8, 1903.)
    Error to Circuit Court of Hancock county.

      Mr. H. F. Burket and Messrs. Watts & Moore, for plaintiff in error.

      Mr. John Poe and Messrs. Gable & Parmenter, for-defendant in error.
   Judgment affirmed on authority of The B. & O. Ry. Co. v. Glenn, 66 Ohio St., 395.

Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7974.
    The State v. Bowers.
    (Decided December 8, 1903.)
    Exceptions to the Court of Common Pleas of Stark: county.

      Mr. J, M. Sheets, attorney general, and Mr. Robert H. Day, prosecuting attorney, for plaintiff in error.

      Mr. James Sterling, for defendant in error.
   Exceptions overruled. A fee of $50 allowed to' James Sterling, Esq., counsel, -to be paid from the-treasury of Stark county.

Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7986.
    Mitchell et al. v. Tucker, Exr., et al.
    (Decided December 8, 1903.)
    Error to Circuit Court of Lucas county.

      Mr. Charles A. Thatcher, for plaintiffs in error.

      Mr. Glayton W. Everett, for defendants in error.
   Judgment affirmed on two grounds: 1. That the plaintiff in error has failed to print the record of the judgment complained of. 2. That if it were printed it would fail to show any error of the circuit court.

Spear, Davis, Shauck and Crew, JJ., concur.


text:
    No. 7997.
    The Luhrig Coal Co. v. Allison.
    (Decided December 8, 1903.)
    Error to Circuit Court of Athens county.

      Messrs. Burch & Johnson; Mr. W. E. Peters and Messrs. Grosvenor, Jones & Worstell, for plaintiff in error.

      Mr. Lawrence T. Neal and Messrs. Jewett & Wood, for defendant in error.
   Judgment affirmed.

Spear, Shauck, Price and Crew, JJ., concur.


text:
    No. 8115.
    National Tube Co. v. Eastern Tube Co. et al.
    (Decided December 8, 1903.)
    Error to Circuit Court of Muskingum county.

      Messrs. Garfield, Garfield & Howe and Messrs. Bullirán & Cromwell, for plaintiff in error.

      Mr. Frank A. Durban, for defendants in error.
   Judgment affirmed.

Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 8132.
    The Travelers Insurance Co. v. Rosch.
    (Decided December 8, 1903.)
    - Error to Circuit Court of Lorain county.

      Messrs. Hoyt, Dustin & Kelley, for plaintiff in error.

      Messrs. Metcalf & Ginniger, for defendant in error.
   Judgment affirmed.

Spear, Shauck, Price and Crew, JJ., concur.


text:
    No. 8179.
    Careno v. The State of Ohio.
    (Decided December 8, 1903.)
    Error to Circuit Court of Summit county.

      Messrs. Wilcox & Grant and Mr. W. A. Spencer, for plaintiff in error.

      Mr. H. M. HageTbarger, prosecuting attorney, and Messrs. Allen, Waters A Andress, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 8622.
    Thomas v. The W. J. Gawne Co.
    (Decided December 8, 1903.)
    Error to Circuit Court of Hamilton county.

      Messrs. Harrison & Aston, for plaintiff in error.

      Messrs. Gohen & Mack, for defendant in error.
   Judgment affirmed on authority of B. & O. R. R. Co. v. Fulton, 59 Ohio St., 575.

Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7995.
    Earley v. Earley et al.
    (Decided December 15, 1903.)
    Error to Circuit Court of Mahoning county.

      Mr. W. M. Roach and Messrs. Jones & Anderson and Mr. A. W. J ones, for plaintiff in error.

      Messrs. Murray & Koonce; Mr. Jared Huxley and Mr. D. D. Aitken, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 8092.
    Frey, Exrx., etc. v. Stewart, Treasurer.
    (Decided December 15, 1903.)
    Error to Circuit Court of Clark county.

      Messrs. Keifer & Keifer, for plaintiff in error.

      Messrs. Stafford & Arthur and Messrs. Bowman & Bowman, for defendant in error.
   Judgment affirmed.

Shauck, Price and Crew, JJ., concur.

Burket, C. J., Spear and Davis, JJ!, dissent.


text:
    No. 8183.
    Barber et al. v. Coffman.
    (Decided December 15, 1903.)
    Error to Circuit Court of Franklin county.

      Mr. T. J. Duncan and Mr. Eugene Lane, for plaintiffs in error.

      Mr. Thomas H. Clark, for defendant, in error.
   Judgment affirmed.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 8187.
    Bowlus v. Cable.
    (Decided December 15, 1903.)
    Error to Circuit Court of Lucas county.

      Mr. D. B. Austin and Mr. G. Harmon, for plaintiff in error.

      Mr. 0. 8. Brumback and Mr. C. A. Thatcher, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 8284.
    Village of Mt. Gilead v. Hayden.
    (Decided December 15, 1903.)
    Error to Circuit Court of Morrow county.

      Mr. Benjamin Olds, for plaintiff in error.

      Messrs. James, Millard & Powell; Mr. J. E. Ladd and Messrs. Harlan & Wood, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 8369.
    Jones, Auditor, et al. v. Britton.
    (Decided December 15, 1903.)
    Error to Circuit Court of Franklin county

      Mr. Cyrus Huling and Messrs. Taylor, Seymour, Webber é King, for plaintiffs in error.

      Mr. C. T. Clark; Messrs. Rogers & Rogers; Mr. Chas. Kinney; Mr. F. Rathmell; Mr. E. E. Corwin; Mr. M. E. ThrailMll and Mr. H. J. Ossing, for defendant in error.
   Judgment of the circuit court reversed, injunction dissolved, and petition of plaintiff below dismissed.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 8370.
    Jones, Auditor, et al. v. Britton.
    (Decided December 15, 1903.)
    Error to Circuit Court of Franklin county.

      Mr. Cyrus Huling and Messrs. Taylor, Seymour, Webber & King, for plaintiffs in error.

      Mr. C. T. Clark; Messrs. Rogers & Rogers; Mr. (Chas. Kinney; Mr. F. Rathmell; Mr. E. E. Corwin;

      Mr. M. E. ThrailMll and Mr. H. J. Ossing, for defendant in error.
   Judgment of the circuit court reversed,- injunction dissolved, and petition of plaintiff below dismissed.

Burket, C. J., Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7957.
    Fleming et al. v. Dwyer, Admr.
    (Decided December 18, 1903.)
    Error to Circuit Court of Montgomery county.

      Messrs. Wright & Ozias, for plaintiffs in error.

      Messrs. Craighead & Craighead, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7965.
    Britsch v. Britsch et al.
    (Decided December 18, 1903.)
    Error to Circuit Court of Marion county.

      Messrs. Copeland & Bartram, for plaintiff in error.

      Mr. J. W. Jacoby and Mr. Rohe W. Donithen, for defendants in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 7966.
    Thatcher v. Kirkpatrick et al., Exrs.
    (Decided December 18, 1903.)
    Error to Circuit Court of Clark county.

      Mr. D. F. Reinoelil and Mr. L. F. Young, for plaintiff in error.

      Mr. G. G. Kirkpatrick and Messrs. Hagan & Kunkle, for defendants in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 8255.
    Hastings v. The Commissioners of Lucas County.
    (Decided December 18, 1903.)
    Error to Circuit Court of Lucas county.

      Mr. B. A. Hayes, for plaintiff in error.

      Messrs. Sumner & Tucker and Mr. G. W. Everett, for defendants in error.
   Judgments of the circuit court and of the court of common pleas reversed, demurrer overruled, and cause remanded for further proceedings.

Burket, C. J., Spear, Davis, Shauck, Price and Crew. JJ., concur.


text:
    No. 8508.
    Yoder v. Bevard et al.
    (Decided December 18, 1903.)
    Error- to Circuit Court of Wayne county.

      Mr. W. F. Kean and Mr. A. B. Metz-, for plaintiff in error.

      Mr. M. L. Smyser, for defendants in error.
   Judgment affirmed.

Btjrket, C.J., Spear, Davis, Shatjck, Price and Crew, JJ., concur.


text:
    No. 7943.
    Hoffhine v. Goldsberry et al.
    (Decided January 5, 1904.)
    Error to Circuit Court of Ross county.

      Mr. John 0. EntreMn; Mr. John P. Phillips and Mr. Lyle 8. Evans, for plaintiff in error.

      Mr. John W. Goldsberry, for defendants in error.
   Judgment affirmed.

Btjrket, C. J., Davis, Shatjck and • Crew, JJ., •concur.


text:
    No. 7967.
    Schroeder v. Phillips.
    (Decided January 5, 1904.)
    Error to Circuit Court of Cuyahoga county.

      Messrs. Beavis & Johnson, for plaintiff in error.

      Messrs. Foran, McTighe <£ Baker and Mr. C. G„ Lones, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 8180.
    The National Life Insurance Co. v. Hanner, Admr.
    (Decided January 5, 1904.)
    Error to Circuit Court of Lucas county.

      Messrs. Doyle & Lewis, for plaintiff in error.

      Messrs. Kinney & Newton, for defendant in error-
   judgment affirmed.

Burket, C. J., Spear and Crew, JJ., concur.


text:
    No. 8181.
    The Aetna Life Insurance Co. v. Hanner, Admr..
    (Decided January 5, 1904.)
    Error to Circuit Court of Lucas county.

      Messrs. James, Beverstock & Donáhey and Messrs. J ames, Millard & Powell, for plaintiff in error.

      Messrs. Kinney & Newton, for defendant in error..
   Judgment affirmed.

Burket, C. J., Spear and Crew, JJ., concur.


text:
    No. 8238.
    McCammon et al. v. Cooper, Trustee, etc., et al.
    (Decided January 5, 1904.)
    Error to Circuit Court of Hamilton county.

      Mr. Harlan Cleveland and Messrs. Bromwell &■ Bruce, for plaintiffs in error.

      Messrs. Harmon, Colston, Goldsmith & Hoadly, for-defendants in error.
   Judgment affirmed on authority of McCammon et al. v. Cooper, Trustee, 69 Ohio St., 366.

Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 8374.
    The National Steel Co. v. Linn, Admr.
    (Decided January 5, 1904.)
    Error to Circuit Court of Jefferson county.

      Mr. P. P. Lewis, for plaintiff in error.

      Mr. D. M. Gruber, for defendant in error.
   Judgment of the circuit court reversed and that-of the common pleas affirmed.

Burket, C. J., Davis, Shauck and Crew, JJ.,. concur.


text:
    No. 8008.
    Village of Perrysburg v. Buckhouse.
    (Decided January 12, 1904.)
    Error to Circuit Court of Wood county.

      Messrs. Baldwin & Harrington, for plaintiff in. error.

      Messrs. James, Bever stock & Donahey, for defendant in error.
   Judgment of the circuit court reversed, and that of the common pleas affirmed.

Burket, C. J., Spear, Davis, Shaucjk, Price and ■Crew, JJ., concur.


text:
    No. 8021.
    Ricketts v. Brown.
    (Decided January 12, 1904.)
    Error to Circuit Court of Hamilton county.

      Messrs. Horstman & Horstman and Mr. G. H. Kattenhorn for plaintiff in error.

      Mr. W. A. Hicks, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 8036.
    Williams v. The State of Ohio.
    (Decided January 12, 1904.)
    Error to Circuit Court of Lucas county.

      Messrs. Ohittenden & Chittenden and Mr. C. W. F. Kirkley, for plaintiff in error.

      Mr. J. M. Sheets, attorney general, and Mr. W. F. Brown, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur-


text:
    No. 8188.
    State National Bank v. Williams, Recorder, etc.
    (Decided January 12, 1904.)
    Error to Circuit Court of Cuyahoga county.

      Messrs. Brewer, Cook & McGowan, for plaintiff in error.

      Messrs. Johnson & Dunlap, for defendant in error.
   Judgment affirmed.

Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 8191.
    Raymer v. Gendron.
    (Decided January 12, 1904.)
    Error to Circuit Court of Lucas county.

      Mr. O. S. Brumback and Mr. G. A. Thatcher, for plaintiff in error.

      Messrs. Smith & Baker, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Crew, JJ., concur.


text:
    No. 8193.
    Hutchins et al. v. Seney et al.
    (Decided January 12, 1904.)
    Error to Circuit Court of Hancock county.

      Mr. A. G. Fuller, for plaintiffs in error.

      Mr. Henry W. Beney, for defendants in error.
   Judgment affirmed.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 8004.
    Rissler et al. v. Edwards.
    (Decided January 19, 1904.)
    Error to Circuit Court of Richland county.

      Messrs. Twitchell & Hartman, for plaintiffs in error.

      Messrs. Douglass & Mengert, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 8005.
    Rissler et al. v. Keller.
    (Decided January 19, 1904.)
    Error to Circuit Court of Richland county.

      Messrs. Twitchell & Hartman, for plaintiffs in error.

      Messrs. Douglass & Mengert, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 8009.
    The Northwestern National Insurance Co. v. Green.
    (Decided January 19, 1904.)
    Error to Circuit Court of Ashtabula county.

      .Messrs. Hoyt & Munsell, for plaintiff in error.

      Mr, Charles Lawyer; Mr. Perry and Mr. Roberts, for defendant in error.
   Judgment affirmed.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 8015.
    Knedler, Admr., et al. v. Doster, Admr.
    (Decided January 19, 1904.)
    Error to Circuit Court of Fayette county.

      Messrs. Qregg, Patton & Gregg and Messrs. Post & Reid, for plaintiffs in error.

      Mr. H. H. Sanderson, for defendant in error.
   Judgment affirmed on authority of Banning v. Gottschall, 62 Ohio St., 210.

Burket, C. J., Davis and Price, JJ., concur.


text:
    No. 8198.
    The Midland National Bank v. Long et al.
    (Decided January 19, 1904.)
    Error to Circuit Court of Fayette county.

      Messrs. Post & Reid, for plaintiff in error.

      Mr. Mills Gardner; Messrs. Rogers & Dempsey and Messrs. Creamer & Creamer, for defendants in error-
   judgment affirmed.

Speak, Shauck and Crew, JJ., concur.


text:
    No. 8227.
    Bretz et al. v. Moore.
    (Decided January 19, 1904.)
    Error to Circuit Court of Sandusky county.

      Mr. Edmund B. King and Mr. George E. Withey:,. for plaintiff in error.

      Messrs. Richards & Heffner, for defendant in error-
   judgment affirmed.

Spear, Shauck and Crew, JJ., concur;


text:
    No. 8403.
    Swart, Admx., v. The Huron Dock Co., et al.
    (Decided January 19, 1904.)
    Error to Circuit Court of Erie county.

      Mr. C. A. Thatcher and Mr. W. B. Btarbird, for plaintiff in error,

      Messrs. Wickham & Wickham, for defendants in error.
   Judgment affirmed on authority of Busby v. Finn, 1 Ohio St., 409, the map and blue print being filed with the bill of exceptions and so described as to» leave no doubt of their identity, and the same are therefore held to be a part of the bill of exceptions.

Burket, O. J., Davis, Shauck, Price and Crew,, JJ., concur.


text:
    No. 8201.
    The State v. The Commercial Bank.
    (Decided January 26, 1904.)
    Error to Circuit Court of Jackson county.

      Mr. Elmer G. Powell, for plaintiff in error.

      Mr. J. M. McGillivray, for defendant in error.
   Judgment affirmed.

Burket, C. J., Spear, Davis, Shauck, Price andi Crew, JJ., concur.


text:
    No. 8217.
    Knox v. Carr et al.
    (Decided January 26, 1904.)
    Error to Circuit Court of Greene county.

      Mr. Geo. Arthur; Mr. Horace L. Smith and Mr.. John B. Knox, for plaintiff in error. •

      Mr. Charles L. Spencer and Mr. Charles H. Kyle, for defendants in error.
   Judgment affirmed.

Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 8224.
    Dovel v. Dovel et al.
    (Decided January 26, 1904.)
    Error to Circuit Court of Fairfield county.

      Mr. W. E. Lane; Mr. G. W. McCleery and Mr. A. E. Dovel, for plaintiff in error.

      Mr. G. D. Martin; Mr. M. A. Daugherty; Mr. L. B. Tussing; Mr. T. E. Dolson and Mr. G. E. Martin, for defendants in error.
   Judgment affirmed on authority of Ryan v. Rothweiler, 50 Ohio St., 595.

Spear, Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 8236.
    Cox v. City of Lancaster.
    (Decided February 2, 1904.)
    Error to Circuit Court of Fairfield county.

      Mr. O. D. Martin and Mr. M. A. Daugherty, for plaintiff in error.

      Mr. A. W. MitJvoff, city solicitor, and Mr. G. E. Martin, for defendant in error. -
   Judgment affirmed.

Spear, Shauck and Price, JJ., concur.


text:
    No. 8242.
    Commercial Bank v. The Union Central Life Insurance Co.
    (Decided February 2, 1904.)
    Error to Circuit Court of Seneca county.

      Messrs. McCauley & Weller, for plaintiff in error.

      Messrs. Noble, Keppel & Noble and Mr. Robert Ramsey, for defendant in error.
   Judgment affirmed.

Spear, Shauck and Crew, JJ., concur.


text:
    No. 8244.
    Streit, Admx., v. Outcalt, Admr., etc., et al.
    (Decided February 2, 1904.)
    Error to Circuit Court of Hamilton county.

      Messrs. Burch <& Johnson, for plaintiff in error.

      Mr. Philip Roettinger; Messrs. Harper & Allen and Mr. M. G. Slutes, for defendants in error.
   Judgment affirmed.

Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 8248.
    The Michigan Mutual Life Insurance Co. v. The East Side Lumber Co. et al.
    (Decided February 2, 1904.)
    Error to Circuit Court of Lucas county.

      Mr. E. R. Guiney and Mr. G. W. Kinney, for' plaintiff in error.

      Mr. C. W. 'Everett; Mr. N. 0. Winter; Mr. Ohas. E~ Longwell; Mr. Clem V. Wagner and Messrs. Griffin & Conklin; for defendants in error.
   Judgment affirmed.

Davis, Shauck, Price and Crew, JJ., concur.


text:
    No. 8426.
    Lewis, Auditor, v. State ex rel. Harris, Exrx.
    (Decided February 2, 1904.)
    Error to Circuit Court of Hamilton county.

      Messrs. Ampt, Ireton, Collins & Behoenle, for plaintiff in error.

      Mr. Dan Thew Wright, for defendant in error.
   Judgment reversed on authority of Lewis, Auditor, v. Kramer, 69 Ohio St., 473.

Spear, Davis, Shauck and Price, JJ., concur.


text:
    No. 8463.
    Scarborough et al., Exrs., v. Gibson, Treasurer, et al.
    (Decided February 2, 1904.)
    Error to Superior Court of Cincinnati.

      Mr. F. O. Buire; Mr. A. B. Benedict and Messrs.. Outealt & Foraker, for plaintiff in error.

      Messrs. Ampt, Ireton, Collins & Behoenle, for defendants in error.
   Judgment affirmed.

Shauck, Price and Crew, JJ., concur.


author: Brinkerhoff, J.

text:
    The Junction Railroad Company v. Richard Ruggles.
    Where a land-owner granted a right of way to a railroad company organized' under a charter in perpetuity, and the grant contains no limit as to time, the easement will be perpetual, unless terminated by release or abandonment.
    Where such railroad, with its appurtenances, is subsequently pledged to the state in security for a loan, and, the pledge being forfeited, is sold by the state, he easement passes by the sale, and is vested in the purchaser.
    This result is in no way affected by the fact that the purchase is made, me- • diately or immediately, by another railroad company, if there be legislative authority to make the purchase, and if the original object and consideration of the grant of the easement be not thereby changed or defeated

      In chancery.
    Reserved in the district court of Erie county.
    On the 8th day of March, 1836, the general assembly of Ohio passed “ an act to incorporate the Ohio Railroad Company,” *and vested it “ with the right to construct a double or single railroad or way from some suitable point, to be selected, on the east line of the State of Ohio, in the county of Ashtabula, from, at, or near the northeast corner of the county of Ashtabula, and to pass westwardly through the counties of Ashtabula, Geauga, Cuyahoga, Lorain, Huron, Sandusky, Wood, and Lucas, to the Maumee river,” etc.
    And the stockholders were by this act “ created a body corporate, and shall remain a corporation forever, under the name of the Ohio Railroad Company,” with perpetual succession.
    On the second day of January, 1837, Almon Ruggles executed and delivered to the Ohio Railroad Company, an instrument in writing, under seal, but not acknowledged, and attested by but one witness, reciting that “If the Ohio Railroad Company shall locate the road referred to in their charter, through any lands owned or possessed by me, for the consideration of the location of said railroad, I hereby quitclaim to said company so much of said land as ■said company are by their charter authorized to take for the purposes of the location and construction of said road; and the right of immediate possession is hereby given to said company, for the ■consideration above mentioned ; and I further grant to said company, the right of taking and converting to their own use any stone ■or gravel,” etc.
    At the date of this written instrument, Almon Ruggles owned and was in possession of a farm, in the township of Yermillion, Erie county.
    The Ohio Railroad .Company was then, by its charter, authorized to take, for the purposes of the location and construction of its road, a strip one hundred feet wide, across the lands through which it might be located.
    Soon after the date of said written instrument, said company located the road referred to in its charter, through said farm of said Ruggles, and with his consent, and took possession of the roadway, and commenced the construction of the road, when the board of public works of the State of Ohio took possession of the road, as hereinafter mentioned.
    By an act of the general assembly of the State of Ohio, passed *on the 24th day of March, 1837, Swan’s Stat. 559, every railroad company in the state, two-thirds of whose authorized capital stock had been subscribed, became entitled to receive a loan of credit from the state, equal in amount to one-third of such authorized capital stock, “to be delivered to the company in negotiable scrip, or transferable certificates of stock of the State of Ohio,” etc. . . . And “the receipt of such scrip, or any portion of .scrip, by any railroad company, shall operate as a specific pledge of the capital stock, estate, tolls, and profits, of such railroad company, to the State of Ohio, to secure the repayment of the sums advanced in pursuance of this act,” etc. And in case any such oompany should receive such loan, and should “ at any time fail in the punctual payment of the interest on the sums advanced, or in repaying the principal when redeemable, the governor shall be authorized, on behalf of the state, to take possession of the works of said company, and to place them under charge of the board of public works, to hold the same until, by the tolls and profits of the road, or by a lease of the road, engines, cars, and fixtures, or by sale thereof, the state be fully reimbursed.”
    The Ohio Eailroad Company availed itself of the provisions of this act, and made a loan of one hundred and fifty thousand dollars from the state.
    In July, 1842, the railroad company failed to pay the interest on this loan; and in January, 1843, the governor, on behalf of the state, took possession of the road, and all the property and effects of the company that could be found, and placed the same under charge of the board of public works. At the time the road passed into the hands of the state authorities, the right of way had been obtained by the company for most of the distance between the Cuyahoga and Maumee rivers, and considerable work had been done toward constructing the road, in driving piles, building bridges, etc.
    On the 12th day of March, 1815, the general assembly of Ohio passed a joint resolution directing the board of public works to sell to the highest bidder “ all the personal property belonging to the Ohio Eailroad Company that now is or may ^hereafter come into the possession of said board,” . . . and to “ sell and dispose of the whole or part of the right of way, permanent fixtures, and chartered franchises of said company; and the person or persons, or body corporate, becoming the purchaser of such permanent fixtures, right of way, and chartered privileges, may exercise, use, possess, and enjoy the same, or so much thereof as may be purchased, as fully as the same could have been enjoyed by the said Ohio Eailroad Company; provided that said permanent fixtures, right of way, and chartered privileges shall become forfeited to the State of Ohio, if the purchaser shall not, within five years commence, and within ten years complete said road or so much thereof as shall have been purchased by such person or persons, or body-corporate,” etc.
    Under this resolution a sale having been made in December, 1845, by the board of public works, to Ebenezer Lane, of “ all and singular, the rights of way, permanent fixtures, and chartered privileges of the Ohio Eailroad Company, to and in that part of the line of the said Ohio Eailroad which lies between the west bank of the river Cuyahoga and the intersection and termination of the Mad Eiver and Lake Erie Eailroad, in the town of San-dusky, in Erie county, together with ten thousand shares of the capital stock of said company, and all the appendences, appurtenances, rights, privileges, immunities, and incidents belonging te the same,” etc., on the 20th day of February, 1846, said board of public works formally granted, by deed of that date, said rights, fixtures, privileges, stock, etc., to said Lane, and to his successors-forever, subject to the forfeiture mentioned in the said joint resolution.
    By an act of the general assembly passed March 22, 1850, the time fixed by said joint resolution for the commencement and completion of said railroad, was extended for the period of five years for commencing, and ten years for completing the same.
    The Junction Eailroad Company, complainant, being engaged in the exercise of its chartered rights, in constructing a railroad from the city of Cleveland to the west line of the State of Ohio, *to facilitate its object,- purchased, for a valuable consideration, from Lane, the rights, interests, privileges, and stock of the Ohio Eailroad Company, which he acquired by the sale to him by the board of public works.
    In the meantime Almon Euggles died, leaving his son Eichard his devisee as to a part of the farm taken by the Ohio Eailroad Company for the purposes of the location and construction of its road.
    The Junction company located its road across the Euggles farm, on the same strip of land upon which the Ohio Eailroad was loeated. and was about to send its agents there to construct that portion of its road, when the said Biehard Euggles denied the right of tne Junction company to occupy said strip, and threatened to sue it for trespass in case its agents came upon the land.
    Upon this state of facts the Junction company filed its bill, complaining of the action and threats of the said Eichard Euggles, and the hinderance and delay he thereby occasioned it, in the construction of its road, and asking the court to perpetually enjoin the said Euggles, his agents and servants, from interfering with its rights in the premises.
    The case is heard upon bill, answer, replication, exhibits, and testimony.

      F. B. Sadler and W F. Stone, for complainant.

      J. M. Boot, for defendant.
   Brinkerhoff, J.

The instrument executed by Almon Euggles to the Ohio Eailroad Company, was more than a mere license revocable at will. It wanted but a more formal execution, to render it a legal conveyance of a perpetual easement in such lands as the grantee might appropriate in conformity to its terms. The Ohio Eailroad Company having accepted the grant and complied with the conditions on which it was made, would, by virtue of this instrument, at least be entitled to enforce such legal conveyance; and regarding as done that which ought to he *done, we treat the instrument, for the purposes of this suit, as if it were a formally executed legal conveyance. Wilson v. Chalfant, 15 Ohio, 248. The instrument itself containing no limitation as to time, the duration of the easement granted would be perpetual, unless terminated by a release or abandonment.

The remaining, and, indeed, the decisive question in this case, here presents itself. Was the easement of the Ohio Eailroad Company, thus acquired, of such a nature as to be capable of being pledged in security of a loan, and, on failure to redeem the pledge, of being sold and transferred so as to vest the easement in the purchaser ? or, in other words, was it capable of sale and transfer ?

And here, at the outset of this inquiry, it is important to notice that this easement in the Ohio company originated solely in voluntary contract between it and Almon Euggles. It was not appropriated to the use of the company in the exercise by it of any right of eminent domain delegated by the state to the company, nor has there been, at any time since, any exercise of, or claim to have exercised, such sovereign right, as against the land in question, either by the Ohio company or those who have succeeded, or claim to have succeeded, to its rights. It was purely a matter of contract between Ruggles and the company. Nor are we perplexed in this case by being called on to decide any difficut and important question as to the assignability or otherwise of corporate rights, privileges, enfranchises. The state is no party to this proceeding, her interests or rights are in no way involved in it, nor has her authority ever been invoked or exercised in respect to the subject-matter of this easement, except to enforce the contract of pledge between herself and the Ohio Railroad Company. The possession of corporate franchises, or of a corporate existence, even, was not at all necessary to the validity of the contract between the company and Ruggles, nor, as against Ruggles, to the complete enjoyment of the easement by the company. Had the persons composing the Ohio Railroad Company been nothing more than an unincorporated partnership, it would have been fully competent to make the contract withRuggles which it did make, to have vested in it the easement *which he conveyed; and, as against Raggles, fully to enjoy that easement; that is to say, it would have been competent to construct a railroad over the land covered by the easement, and to rum trains of cars over it, at will, from end to end. All this the company could do without corporate franchises or corporate existence; and the right to do this, and no more, is all that is now claimed, as-against Ruggles, by those who claim to have succeeded to the rights-of the Ohio Railroad Company in respect to the easement granted by him. We are, therefore, freed from all questions of eminent domain and corporate franchise, and, in the determination of the case,. we throw them entirely out of view, and confine ourselves exclusively to an inquiry as to the rights of the original parties and their successors, arising out of the contract between them.

We return, then, to the question: Was this easement capable of transfer? The question seems to be one of first impression. At all events, no case is cited, and we can find none, in which the point has ben adjudicated. The subject-matter of the question — a right of way for a railroad — is itself new ; and the principles, long ago established, in regard to rights of way personal or in gross, and rights of way appurtenant -to real estate, have no direct application to this new class of rights of way. It, we apprehend, is sui generis, and must be governed by reasons peculiar to itself, and the lights-which may be derived from the analogies it may bear to the old classes of easements of this kind, whose incidents have been already fixed and determined. It seems to be settled that “ if a right of way be in gross, or a mere personal right, it can not be assigned to-any other person, nor transmitted by descent. It dies with the person, and it is so exclusively personal, that the owner of the right can not take another person in company with him. But when a. right of way is appendant of annexed to an estate, it may pass by assignment when the land is sold to which it was appurtenant.” 3 Kent, 420. Why this distinction ? Because (I apprehend) the grant being silent on the subject of a transfer of the easement, the grant simply of a personal right does not in its nature presuppose or imply a right of transfer, or give rise to any presumption that *such a right must have entered into the intention of the parties. But where the easement is annexed to real estate, the simple grant of such an easement fairly and reasonably justifies a presumption, in the absence of -anything in the terms of the grant to the contrary, that the duration of the easement was intended to run parellel with the estate to which it was made appurtenant, and to be subject to its incidents and liabilities. This easement was made appurtenant to a railroad, and was granted to a corporation whose sole function was the construction, ownership, and management of a railroad. Now a railroad, strictly speaking, is neither a person nor real estate; yet it presents strong features of analogy to real estate —particularly in those qualities out of which arises the distinction above referred to. Like real estate, a railroad is — or at least the Ohio Railroad was — expected to be of perpetual duration. 33 Ohio L. L. 320, sec 3. Although the body corporate, which is nothing but a fiction of law, instituted for purposes of policy and convenience, remains the same, yet its actual ownership, like that of real estate, is subject to constant change by all the modes of transfer known to the law. A right of way appendant to a farm, is granted or reserved as being necessary or convenient for the occupancy and use of the farm, and is therefore transferable with the farm. A railroad is an entire thing ; and the entire right of way for a railroad is made up out of a union of many rights derived from many individual owners; some by contracts, involving various duties and obligations, and others by appropriation, under a delegated right of eminent domain. Any one of them is appurtenant to all the remainder — necessary to the enjoyment of all the remainder— and therefore, from analogy to rights of way appendant to real estate, alienable, we think, with the thing to which it is appurtenant.

If, then, the easement in question be, in its nature, capable of alienation, the means or medium of transfer, whether voluntary or enforced, or the party to whom the sale is made, whether a natural" person or a body corporate, can not affect the question. They can in no way affect the interests, and therefore in no way the rights, of the original grantor, or those claiming under him. *As to him and them, the saléis valid and binding, provided the purchaser had legal capacity to make the contract of purchase, and no condition, either expressed or fairly implied, on which the grant wasmade, has been thereby defeated or violated.

The legal capacity of E. Lane, the intermediate purchaser, and of the Junction Railroad Company, the present claimant of the casement, to purchase a right of way from any person authorized to sell, will not be questioned.

Has any condition of the grant, expressed or implied, been violated ?

The only express condition named in the grant is, that the grantee should locate its road across the land of the grantor. This was done by the original grantee. The grant was, however, we-think, subject to the further conditions, fairly implied from the nature of the grant, that a railroad should be constructed and operated on the same line substantially as that contemplated by the charter of the original grantee. This, too, seems to have been done.

On the sale of the Ohio Railroad by the state, Lane, under whom the complainant claims title to this easement, purchased but a section of the road; and it is a least an open question whether, by virtue of that sale, any of the corporate franchises of the Ohio Railroad Company passed and were vested, either in him alone or in conjunction with the purchasers of the other sections of the road. Now, assuming that Lane owned but a portion of the road, and was vested with none of its corporate franchises, and that, therefore, he had not the power to complete and to operate the road, in conformity with the implied conditions of the grant, it may be argued, and in the consideration of this case it has been suggested, that this want of power in Lane himself to fulfill the conditions of -the grant, would work a forfeiture or avoidance of the easement. But, we are satisfied, there is nothing in this argument.

Suppose, that in contemplation of the construction of this road, but before any corporate body whatever had been chartered for that purpose, Lane, in his individual capacity, had volunteered to pass along the line of the contemplated road, and had purchased *from individual land owners, paid for, and received from them grants of the right of way for just such a railroad as that authorized by the charter of the Ohio Railroad Company, on the conditions that such road should'be located and constructed over the lands of the grantor. Suppose, that immediately after the right of way was thus acquired, a company were incorporated to construct just such a road; that Lane should transfer the rights of way held by him to the corporation, and that a railroad should thereupon be constructed, in all respects, like that provided for in tho ■conditions of the grants of rights of way, could it be contended, with any degree of plausibility, that these grants would be void, merely because, at the time they were made, Lane had not, in his own person, then and there the power to fulfill their future conditions? We think not. So that the conditions of the grant are actually fulfilled, surely the agency through which their fulfillment .is accomplished can not affect the validity of the grant itself. For there is nothing of which the grantor can complain; he is wholly uninjured.

Again, the charter of the Ohio Railroad Company provided that its road should be completed within ten years. No railroad on the line designated in that charter, was completed within that limit; ■but that of the Junction company and its extensions were completed within the time to which that limit was extended by subsequent legislation; and it is contended that one of the implied conditions of the grant of the right of way in question was, that the road should be completed within the time fixed by law, at the date of tho grant.

We do not think so. The time limited for the completion of the road was fixed as a condition in the charter of the company, by the state, for her benefit and security. This benefit and security she hail a right to waive at her own will; and it seems to us that when Almon Ruggles granted a right of way to the Ohio Railroad Company, without any stipulation as to the time in which its conditions should be performed, he must be held to have made the grant subjeet to, and in contemplation of, the right of the state to extend the time for the completion of the road. Doubtless, a right of way, like any other right of property, maybe ^abandoned; and' such abandonment, which depends on the intention of the owner, may be inferred from the lapse of time or other circumstances indicative of an intention on the part of the grantee to abandon ; but in this case we see no sufficient evidence of such intention.

The Ohio Railroad Company was chartered by the state, for the purpose of constructing a railroad, running east and west, along the south shore of lake Erie. To attain this object, and to have the road located across his land, Almon Ruggles granted the right of way in question. The company made a loan from the state, and pledged its road, with its appurtenances, in security. The company having failed in its contract with the state, the road was sold by the state, and in conformity to the terms of the pledge, to E. Lane, who sold the same to the Junction company, which was by law authorized to make the purchase. The Junction company has stepped into the place of the Ohio company, and has constructed its road, so far as the land of Ruggles is concerned, on the precise1 line where the Ohio company had located its road, and on substantially the same line throughout, so as to afford the same facilities of transportation and travel.

On this state of fact we are. unable to see how or wherein the estate of Ruggles has been injured by the transfer, or that anything has happened or been done since the grant, which, had it been foreseen by him at the time of the grant, could reasonably have induced him to withhold it. And the attempt of his devisee, therefore, now to exact further compensation, is, we think, wrongful; and to prevent this, the powers of a court of equity are properly invoked.

Decree for complainant.

Barteet, C. J., and Swan, Bowen, and Scott, JJ., concurred.

       Judge Bowen’s term of office expired on the 9th day of February, 1858, when he was succeeded by Judge Sutliff.