author: Chew, J.

text:
    Alexander et al., Commissioners of Darke County, v. Baker et al.

      Interpretation of words “resident owners” — In act of April 4> 1904 — Improvement of public roads — Improvement requires the majority of petitioners, when — Authority of county commissioners — Road laws — Injunction.
    1. The words “resident owners” as used in section one of the ■ act of the general assembly passed April 4, 1900, (94 O. L., 96), entitled, “An act to provide for the improvement of public roads,” mean, and were intended to designate and include, all owners of real estate who are residents of the county and own lands lying within one mile of the road to be improved, and all must be considered and counted in determining whether a majority of the resident owners of real estate have signed the petition asking for the improvement.
    2. A petition presented to the county commissioners under favor of this section, asking for the improvement of a public road, which is not signed by a majority of such resident land owners, does not confer upon the commissioners jurisdiction; and where said commissioners assume to act on such petition and are threatening to proceed with and make said improvement, they may be restrained therefrom by injunction.
    (No. 9797
    Decided May 22, 1906.)
    Error to the Circuit Court of Darke county.
    On the twentieth day of March, 1905, the defendants in error presented to the county commissioners of Darke county, Ohio, and caused the same to be filed with the auditor of said county, a petition asking for the improvement of a certain public road lying and being within said county, pursuant to an act of the general assembly of the state of Ohio passed April 4, 1900, entitled “An act for the improvement of public roads.” (94 O. L., 96.) On March 30, 1905, said commissioners having theretofore considered said petition and having found and determined that the same was signed by a majority of the resident owners of the real estate lying and being within one mile on either side of said road and having found upon actual view of said road that the public utility required its improvement they thereupon, on said thirtieth day of March, in conformity with said findings ordered said road improved by grading and graveling according to the specifications fixed by them in said order, and directed the county surveyor to go upon the line thereof and perform the duties specified in said order in accordance with section one of said act. Said commissioners also determined and ordered that one-half of all the costs and expenses of the improvement of said road, except bridges,, sewers and culverts should be paid out of the proceeds of any levy, or levies upon the grand duplicate of the county, to be assessed by them against the taxable property of the townships of. Twin and Monroe in said county, in which townships said road is located, in proportion to the length of said road in each township, and ordered that the balance of said costs and expenses thereof be assessed upon, and collected from the owners of real estate situate within one mile of said road on each side thereof benefited thereby, and in proportion to. the benefits to be derived therefrom to said real estate, and further determined and ordered, that the estimated assessment therefor be made after said improvement was completed.
    Thereafter, on the thirtieth day of June, 1905, the defendant in error, George W. Baker, suing for himself and others, commenced an action in the court of common pleas of Darke county, Ohio, against the commissioners of said county, the petitioners for said road improvement and James R. Marker, county surveyor, to enjoin the making of said improvement, plaintiffs alleging in their petition as grounds for said injunction: (1) That a majority of the resident landowners had not signed the petition asking for said improvement; (2) That the public utility did not require said improvement; (3) The costs would exceed the benefits; (4) The commissioners ordered the road improved by grading instead of by stone as prayed for in the petition; (5) Said act of the general assembly of April 4, 1900, purporting to authorize said improvement, is unconstitutional. To this petition the commissioners interposed a demurrer, and this being overruled they thereupon filed their answer, pleading therein three several defenses. The first defense consisted of specific denials of certain of the allegations of said petition.
    The second defense of said answer set up and alleged affirmatively the facts as to the resident owners of land lying and being within one mile of said road, and further averred that the estimated assessment for said road, was to be made after said road was completed; and that the engineer had not made an estimated assessment of the proportion of the costs and expenses of said improvement upon the real estate to be charged therewith, and had not fixed and determined the amount or proportion thereof that should be assessed against plaintiff’s lands, or others, and had not determined the benefits that would result to plaintiff’s lands from said:improvement; that he would not do so until said road was completed as directed by said order of said commissioners; and that said commissioners did not intend to assess plaintiff’s lands or the lands of those whom he" claimed to represent, in excess of the special benefits said lands would derive from said improvement.
    Defendants for a further and third defense set up that the alleged want of jurisdiction of said commissioners to make said improvement was shown upon the commissioners’ journal, together with the exceptions of said plaintiff to said action of said commissioners in proceeding with said improvement, and that the error, therefore, if any, was apparent upon the record of said commissioners.
    Demurrers having been filed and sustained to tbe second and third defenses of said answer and plaintiffs having filed a reply to the first defense therein, the cause came on to be heard in the court of common pleas upon the pleadings and evidence and the court, on submission of said cause, having been requested by the defendants, the county commissioners, to separately state its finding of facts and conclusions of law, found among other facts the following, which are the only facts found by the court that are material or pertinent to the present inquiry.
    4. That the village of Arnettsville is a municipal corporation, situate wholly within one mile of said road sought to be improved in petition described, but said road does not extend into, nor through the municipal limits of said village.
    5. That at the time said defendants, the commissioners of said county, heard said petition for said road improvement, and determined that a majority of all resident owners of land lying and being within one mile thereof had signed said petition, there were one hundred and six persons owning lands lying and being within one mile of said road, of whom ninety-eight resided within one mile of said road in said county and state, and the other eight resided in Darke county, Ohio, but more than one mile from said improvement; that neither of said eight persons so residing within said county, but more than one mile from said road, signed said petition, and all are opposed to the improvement of said road.
    6. That of said ninety-eight persons so owning lots and lands and residing within one mile of said road, fifty-two signed said petition to improve the same; that of said fifty-two persons so signing said petition, thirty-four thereof resided within the municipal limits of said village of Arnettsville, owning real estate therein consisting of lots, and eighteen outside thereof owning lands. That of the forty-six persons so owning lots and lands and residing within one mile of said road, who did not sign said petition, forty-two owning lands resided without, and four owning real estate therein consisting of lots resided within the municipal limits of said village of Arnettsville.
    And as conclusions of law upon the above facts the court found:
    1. That all landowners residing in said county of Darke, in the state of Ohio, who own lands lying and being within one mile of said road, whether residing within one mile of said road or residing beyond or more than one mile from said road, should be counted in determining whether a majority ha;d signed said petition therefor.
    2. That all owners of real estate consisting of lots situate within the municipal limits of said village of Arnettsville, and residing within the municipal limits of said village, should also be counted in determining whether a majority had signed said petition for said road improvement.
    4. That a majority of all the landowners residing in said county, who owned lands lying and being within one mile of said road, did not sign said petition therefor, and said defendants, the commissioners of said -county, are without jurisdiction to proceed with the improvement of said road, and by reason thereof should be perpetually enjoined from so doing. That the injuries and damagés plaintiff and those whom he represents will sustain are irreparable, are not assessable in damages, and that redress for the grievances will engender a multiplicity of suits.
    Thereupon it was adjudged and decreed by said court of common pleas that the injunction theretofore granted in said action be and the same was made perpetual. On error, this judgment of the court of common pleas was affirmed. This court is now asked to reverse the judgments of the court of common pleas and circuit court and upon the above record to render such judgment as it is claimed these courts should have rendered.

      Messrs. Anderson, Bowman & Anderson, for plaintiffs in error,
    cited and commented upon the following authorities:

      Thompson v. Love, 42 Ohio St., 76; Lewis v. Laylin, 46 Ohio St., 663; Wells v. McLaughlin, 17 Ohio, 99; Butman v. Fowler, 17 Ohio, 101; Bisher v. Richards, 9 Ohio St., 495; State v. Craig, 12 Circ. Dec., 189; 22 C. C. R., 138; Zimmerman v. Canfield, 42 Ohio St., 463; Bowersox v. Watson, 20 Ohio St., 496; Longanecker v. Commissioners of Darke County, 69 Ohio St., 557; Haff v. Fuller, 45 Ohio St., 495; Frevert v. Finfrock, 31 Ohio St., 621; Frevert v. Finfrock, 43 Ohio St., 335; Endley v. Aldrich, 8 Circ. Dec., 725; 15 C. C. R., 36; s. c. Aldrich v. Endsley, 58 Ohio St., 725; Commissioners v. Junkins, 19 Ohio St., 348; secs. 4450, 4452, 4661, 4774 and 4836, Rev. Stat.

      Mr. Martin B. Trainor, for defendants in error,
    cited and commented upon the following authorities:

      Street Railway Co. v. Pace, 68 Ohio St., 205; Cincinnati v. Guckenberger, 60 Ohio St., 353; Cincinnati v. Connor, 55 Ohio St., 82; Lewis v. Laylin et al., 46 Ohio St., 663; Musser v. Adair, 55 Ohio St., 476; Wells v. McLaughlin, 17 Ohio, 99; Butman et al. v. Fowler et al., 17 Ohio, 101; Railroad Co. v. Commissioners, 35 Ohio St., 9; State ex rel. v. Insur ance Co., 50 Ohio St., 262; Elliott on Roads and Streets, secs. 415, 453; Lear v. Halstead, 41 Ohio St., 572; Caldwell v. Village of Carthage, 49 Ohio St., 349; Railroad Co. v. Cummins et al., 53 Ohio. St., 683; Railroad Co. v. Commissioners, 48 Ohio St., 249; Bowles v. State, 37 Ohio St., 43; Carlisle v. Hetherington, 47 Ohio St., 235; State ex rel. v. Commissioners, 54 Ohio St., 333; Commissioners v. State ex rel., 50 Ohio St., 661; State ex rel. v. Commissioners, 56 Ohio St., 780; Commissioners v. Young et al., 36 Ohio St., 288; Makemson v. Kauffman et al., 35 Ohio St., 444; Raymond et al. v. Whitney et al., 5 Ohio. St., 201; Village of Pleasant Hill v. Commissioners, 71 Ohio St., 133; 50 O. L. B., 57; McGuire v. Smock et al., 42 Ind., 1; Doane v. Railway Co., 160 Ill., 22; Howard v. First Independent Church of Baltimore, 18 Md., 451; Traction Co. v. Parish, 67 Ohio St., 181; Dean, Appellant, v. Clark et al., Respondents, 80 Hun, 80; Smith et al. v.
      Applegate, 2 Zab., 352; Military Academy v. Railway Co., 65 N. J. Law, 328; State v. City of Elizabeth, 35 N. J. Law, 351; Hays et al. v. Jones, 27 Ohio St., 219; Roberts v. Easton et al., 19 Ohio St., 78; Belknap v. Belknap, 2 Johns. Ch., 463; Burgett et al. v. Norris, 25 Ohio St., 308; Glenn, Treasurer, et al. v. Waddell et al., 23 Ohio St., 605; Matheny v. Golden, 5 Ohio St., 361; High on Injunctions, sec. 1271; Spelling on Injunctions, secs. 141, 142; Elliott on Roads and Streets (2 ed.), 607; Town et al. v. Nelson, 35 Ind., 532; Haff v. Fuller, 45 Ohio St., 495; Frevert v. Finfrock, 31 Ohio St., 621; s. c., Fravert v. Finfrock, 43 Ohio St., 335; Gilliland v. Sellers, 2 Ohio St., 223; Taylor, Aud., et al. v. Crawford et al., 72 Ohio St., 560; 50 O. L. B., 415; State ex rel. v. Brown et al., 60 Ohio St., 470; Kelley v. State, 6 Ohio St., 269; Hixson v. Burson et al., 54 Ohio St., 479; Elliott v. Berry, 41 Ohio St., 110; Fields v. Commissioners, 36 Ohio St., 476; Hutchinson v. City of Omaha, 52 Neb., 346; N. W. Rep., 218; Zimmerman v. Canfield, 42 Ohio St., 463; Bowersox v. Watson, 20 Ohio St., 507; Commissioners v. Commissioners, 64 Ohio St., 160; Brown v. O’Connell, 36 Conn., 433; Norwalk St. Ry. Co., In re, 69 Conn., 576; Siebold, Ex parte, 100 U. S., 371; Maynard v. Hill, 125 U. S., 190; Taylor v. Porter, 4 Hill, 140; Crawford v. Taylor, 27 O. C. C., 245; Shepard v. Barron, 14 O. F. D., 417; secs. 2660, 2662, 4637, 4638, 4645, 4737, 4774, 4779, 4799, 4825, 4836, 4850, 4906, 4925, 4927, 5848 and 6708, Rev. Stat.
   Chew, J.

Numerous questions were raised on the trial of this cause in the court of common pleas two only of which, upon this record, are properly before us for review, these are:- 1. Did the county commissioners of Darke county, Ohio, by presentation to them of the petition for the improvement of the road in controversy, acquire jurisdiction to order said improvement? 2. At the time of filing their petition for injunction in this case had the defendants in error an adequate remedy at law? These propositions we shall consider briefly in the order named. It is conceded by counsel in this case that unless the petition presented to the county commissioners was signed by the requisite number of qualified landowners, said commissioners were without authority or jurisdiction to entertain said petition, or to order the making of said improvement, and that whether or not said petition was so signed depends upon and is to be determined by, the construction or interpretation proper to be given the words “resident owner” as employed in section one of the act of the general assembly passed April 4, 1900, entitled, “An act to provide for the improvement of public roads,” which section provides as follows:

“Section 1. That when a majority of the resident owners of any real estate lying and being within one mile of any public road shall present a petition to the county commissioners of any county in the state of Ohio, asking for [the] grading and improving of any such road, the board of county commissioners shall go upon the line of such road described in such petition, and if in the opinion of the county commissioners the public utility requires such road to be graded and improved, the commissioners shall determine whether the improvement shall be constructed of stone, gravel, or brick, any or all, and they shall determine what part or parts of such road improvement shall be of stone, gravel, or brick, any or all, and shall enter their determination on their journal, and at the same time appoint an engineer to go upon the line of such road and make such markings, gradient lines, plat and profiles and estimates as such commissioners shall order in their entry on their journal, and order that the improvement be made; and at the same time said commissioners shall order that a portion of the cost and expense thereof, which shall not be less than one-half, nor more than two-thirds, of the total cost and expense thereof, shall be paid out of the proceeds of any levy or levies upon the grand duplicate of the county assessed against (which) the taxable property of any township or townships in which such road may be in whole or in part, as authorized by section 5 of this act. And shall also order that the balance of said cost and expense be assessed upon and collected from the owners of the said real estate, and from the real estate benefited thereby in proportion to the benefit to be derived therefrom by said real estate as determined by said commissioners. Said order shall also state the lands which shall be subject to be assessed for the cost and expense of said improvement, and whether the estimated assessment therefor shall be made before the improvement is commenced, or after the same is completed.”

In the present case the record discloses that at the time the petition asking for said road improvement was presented to the commissioners of Darke county, there were then one hundred and six persons residing in said county who owned real estate lying and being within one mile of said proposed improvement. Of this number ninety-eight resided within one mile of said road, and the remaining eight, all of whom were opposed to the making of said improvement, resided more than a mile distant therefrom. Of the ninety-eight persons owning lands and residing ■ within one mile of said road, fifty-two signed the petition asking for said improvement. If therefore, nnder the above statute, in determining whether a majority of the resident owners of real estate have signed a petition for the improvement of a public road only those owning land and actually residing within one mile of said road are to be considered and counted, then the petition in the present case was sufficient, it having been signed by fifty-two of the ninety-eight landowners residing within one mile of the road in said petition described. If, however, all landowners residing within the county who own lands lying within one mile of the road to be improved must be considered and counted in determining whether a majority of the “resident owners” have signed the petition for the improvement, then the petition in the present case was not sufficient and the commissioners were without authority or jurisdiction to proceed with or to order the making of said improvement, — it being admitted that at the time of the presentation of said petition to the commissioners there were one hundred and six such resident owners within Darke county, only fifty-two of whom signed said petition. Obviously, therefore, the question of jurisdiction is to be determined according to the effect and meaning given the expression “resident owners” as found in the foregoing act of April 4, 1900. These words are without definition in the act itself and a comparison of the several parts and provisions of said act contributes little or nothing to the discovery of their intended office and effect. The meaning of these words and the effect the legislature intended they should have as employed and used in this statute may perhaps best be ascertained by a consideration of certain cognate statutes, observing and applying the well established rule, that the provisions of a statute are to be construed in connection with all laws in pari materia and especially with reference to the system of-legislation of which they form a part, and when in a systém of laws relating to a particular subject a. general policy is plainly declared, in order to arrive at the meaning of any particular part or pro-, vision the whole must be considered and that construction adopted, if may be, which will bring it in harmony with such general policy. Cincinnati v. Connor, 55 Ohio St., 82; Cincinnati v. Guchenberger, 60 Ohio St., 353. The act we are now considering is, as was said by the learned trial judge, “an act properly supplementary to the one and two mile assessment' acts which relate especially to making road improvements by special assessments. They are in pari materia; the objects are .the same, the persons interested are the same, and the same general plan of assessment is contemplated. * * * We may therefore look to these acts for aid as to the legislative intent, and particularly as to the meaning of terms used in the act under consideration.” Under the one and two mile assessment acts, all residents of the county owning lands within the assessment district may be petitioners, and all must be counted or considered in determining majorities. These statutes which were passed and had been in force for many years prior to April 4, 1900, are, we think, declarative of the general policy which the legislature intended to prescribe and adopt iu the matter of the making and improvement of roads, and a consideration of their provisions shows that it was the legislative purpose and intent to require that all landowners resident of the county, who own lands within the assessment district, which must bear the burden and will share the advantages resulting from the proposed improvement, shall be considered in determining whether or not a majority of the resident owners favor the making of the contemplated improvement. Such then being the declared general policy at the time the act under consideration was passed and there being nothing in the act itself to indicate an intent to ehangé or abandon such policy, and no reason being shown or suggested, why in the making of the improvement contemplated by this act such policy should be disregarded or abandoned, obedience to the rules of interpretation would seem to require that in construing the language and provisions of said act such general policy should be allowed to control. It follows therefore that the words “resident owners” as found in this act must be held to mean resident of the county and not merely resident of the assessment district, and such was the construction given them by both the circuit court and the court of common pleas.

The only remaining question is, was injunction the proper remedy? As to this we think it enough to say, that inasmuch as presentation to the county commissioners of a petition signed by the requisite number.of resident landowners is necessary.to confer jurisdiction, and is a condition essential and precedent to the right of the commissioners to act. No such petition in the present case having been filed or presented, the commissioners were without lawful authority to proceed with said proposed improvement because wholly without jurisdiction. Injunction therefore was the appropriate remedy.

Judgment affirmed.

Shatjck, C. J., Summers and Davis, JJ., concur.


source: Caselaw Access Project

author: Price, J.

license: Public Domain

text:
    Gaiser v. Hurleman, a Minor.

      Blackmailing — Section 6830, Revised Statutes — Assault with intent to kill — Section 6821, Revised Statutes — Threatening with personal violence — Defendant held for money extortion —Subsequent indictment for assault — Suit for malicious prosecution — Criminal procedure.

    G filed his affidavit against H and others, before a justice of the peace, charging them with a violation of section 6830, Revised Statutes (blackmailing), on the second day of January, 1901, in unlawfully menacing and threatening G with personal violence with the intent, thereby to extort money from him. The case was heard by the justice, and the parties, ■including H; were held to answer said charge before the court of common pleas. At the next term of said court, G appeared before the grand jury and gave and furnished evidence to support said charge, upon which the grand jury found and returned an indictment for the same; and at the same time, , on the same evidence and covering the same alleged criminal transaction of the second of January, 1901, the grand jury found and returned an indictment against the same parties, for assaulting G with intent to rob him, in violation of section 6821, Revised Statutes. The indictment for blackmailing was quashed on the second day of March, 1901. On the fourteenth day of August, 1901, H, one of the accused parties commenced his action against G to recover damages for ■ malicious prosecution on account of the said proceedings before the justice and the court of common pleas; but the indictment against H and the others for assaulting G with intent to rob him was still pending and was not disposed of until November 25, 1902.

      Held: That the indictment for assault with intent to rob was a continuation of the criminal prosecution started before the justice of the peace, and the same was not legally terminated when said, action was commenced.
    (No. 9470
    Decided May 22, 1906.)
    Error to the Circuit Court of Montgomery ■county.
    On the fourteenth day of August, 1901, the -defendant in error, hy his next friend Prank Ritter, ■commenced an action against the plaintiff in error, to recover damages for malicious prosecution, in which petition it is averred that G-aiser, on or about the twenty-first day of January, A. D. 1901, falsely, maliciously and without reasonable or probable •cause therefor, filed an affidavit before Lee Markey, .a justice of the peace in and for Dayton township, in Montgomery county, against the plaintiff, charging that on or about the second day of January, 1901, in said county, the plaintiff, Hurleman, did •unlawfully, knowingly and maliciously and feloniously and verbally demand of him, said Jacob ■G-aiser, the sum of $4,000, with menaces to do injury -to the person of him, the said Jacob G-aiser, to-wit, to assault, strike and beat him with a club and rope, .and to kill him the said G-aiser, with intent thereby to then and there, by means of such menaces, to nnlawfully, wilfully, maliciously and feloniously ■extort from him, G-aiser, said sum of money; and that he, G-aiser, caused a warrant for the arrest of the plaintiff to be issued and his arrest thereon secured; that plaintiff was required to enter into recognizance for his appearance to answer said charge; that on the twenty-fifth of January the •case was heard by the justice, and the plaintiff was held to answer to the court of common pleas of that county and he was required to give recognizance for his appearance there, which he gave; that on the thirty-first' day' of January, 1901, Gaiser appeared before the grand jury, and there wilfully, maliciously, and without probable cause, testified in said cause, and furnished to the grand jury certain false information against the plaintiff, and thereby procured the indictment of plaintiff on said charge; that on the second of March, 1901, said indictment was quashed and dismissed, and the plaintiff discharged, and said cause is.wholly ended and determined; that he was compelled to employ counsel to defend him, etc., and prayed damages in the sum of $5,000.
    Gaiser answered, alleging: .(1) That upon the transcript sent up from the docket of Lee Markey, justice of the peace, of the proceedings had before him against the plaintiff, and upon the testimony the grand jury found and returned two separate indictments against the plaintiff and others jointly, one of which was still pending when this action was commenced; that said bills were found upon the same matters and facts, identical in time and place ■of occurrence. The answer denies that the prosecution is ended. (2) The defendant denies all malice and pleads probable cause for the arrest and prosecution ; that he detailed all the facts to a competent lawyer and sought his advice and acted upon it in instituting the prosecution. The reply denies the pendency of the prosecution when the action was commenced.
    On the issues, the case was tried to a jury. At the close of the plaintiff’s evidence, the defendant, Gaiser, moved the court to direct a verdict in his favor on the ground, “that the proof of the plaintiff did not show that the proseention for which damages was claimed was fully determined and ended.” The motion was overruled and the defendant excepted. The defendant then introduced his evidence against which the plaintiff introduced evidence in rebuttal. The defendant excepted to the charge of the court. A verdict was returned for the plaintiff assessing damages. The motion for new trial was overruled and judgment rendered on the verdict. On error, the circuit court affirmed the judgment. The case is here on error to reverse both judgments.
    The material facts are stated in the.opinion.

      Mr. Oscar M. Gottschall, for plaintiff in error,
    ■cited and commented upon the following authorities:

      Bacon v. Waters et al., 2 All., 400; Clark v. Cleveland, 6 Hill, 343; Ash v. Marlow, 20 Ohio, 119; Ford v. Osborn, 45 Ohio St., 1; Staunton v. Goshorn, 94 Fed. Rep., 52; Eihlert v. Gommoll, 13-23 O. C. C., 586; Railroad Co. v. Mason, 148 Ind., 578; Pawlowski v. Jenks, 115 Mich., 275; Page v. Miller, 6 Circ. Dec., 676; 13 O. C. C., 663; Johnson v. Miller, 63 Ia., 529; Ross v. Hixon, 46 Kan., 550; secs. 6821 and 6830, Rev. Stat.

      Mr. W. A. Hallanan, for defendant in error,
    cited and commented upon the following authorities:

      Ash v. Marlowe, 20 Ohio, 119; Anderson v. Friend, 71 Ill., 476; Vinal v. Core et al., 18 W. Va., 4; Watt v. Corey, 76 Me., 87; Hyde v. Greuch, 66 Md., 57; Walter v. Sample, 25 Pa. St., 275; Johnson v. McDaniel & Johnson, 5 Dec., 717; 7 N. P., 467; John v. Bridgman, 27 Ohio St., 39; National Bank v. Wheelock, 52 Ohio St., 550; Taylor v. Williams,
      2 B. & A. D., 845; Cotton v. James, 1 B. & A. D., 128; Bernar v. Dunlap, 13 Norris (Pa. St.), 329; Williams v. Van Meter, 8 Mo., 342; Ross v. Hixon, 46 Kan., 550.
   Price, J.

It was incumbent upon the plaintiff on the trial of his action for malicious prosecution to-establish by a preponderance of the evidence, among other things, that the prosecution for which he was asking damages, had legally terminated prior to the commencement of such action, and if he failed to make out the averment of his petition to that effect,, he had no right to recover.

The question was fairly raised at the close of the plaintiff’s evidence, by the motion of the defendant. Gaiser, asking the trial court to direct a verdict in his favor on the ground that plaintiff had failed in his evidence, to establish, that the prosecution complained of had legally ended. The court overruled the motion and defendant excepted.

One of the grounds assigned in the motion for new trial, is that the court erred “in overruling the motion of defendant to instruct the jury to return a verdict for the defendant at the close of the plaintiff’s testimony.” The motion for new trial containing this assignment was overruled. This ruling was complained of by Gaiser, in his petition in error filed in the circuit court. The same question is presented in the petition in error filed in this court wherein it is alleged that the circuit court erred in affirming the judgment of the court of common pleas, and in not reversing the same.

Therefore our first duty is to determine the vital question, whether the plaintiff, in the trial court established by a preponderance of the evidence, the fact, that the criminal prosecution complained of had terminated or ended, when he commenced his action for damages on account of the same. To. decide this point, we are required to examine some of the facts disclosed by the record.. As shown by the petition, the substance of which appears in our statement of this case, the plaintiff in error, Gaiser, on or about the twenty-first day of January, 1901, filed his affidavit against defendant in error, Frank Hurleman, and two others, charging therein, that on the second day of January, 1901, in Montgomery county, Ohio, they did unlawfully, knowingly and maliciously and verbally demand of him, said Jacob Gaiser, the sum of $4,000, with menaces to do injury to his person, by assaulting, striking and beating him with a club and rope, etc., with intent thereby then and there, by means of such menaces, to unlawfully, maliciously and feloniously extort from him said sum of money. The affidavit charged the accused persons with a violation of section 6830, Revised Statutes — a law penalizing such acts to extort money as blackmailing and making the same a felony.

On hearing of the case, the examining magistrate held the accused, including Hurleman, to answer to the court of common pleas and recognizance was asked and given for their appearance before that court.

The petition further alleges, that on the thirty-first day of January, 1901, Gaiser appeared before the grand jury, and there wilfully, maliciously, and without probable cause, testified in said cause and furnished to the grand jury certain false information against the plaintiff, and thereby procured the indictment of the plaintiff on said charge, but that on the second day of' March, 1901, said indictment was quashed and dismissed and plaintiff discharged. The foregoing is the prosecution which the petition avers was thus wholly ended and determined. The printed record shows that the petition correctly details the contents of the affidavit upon which plaintiff and the others, were arrested and bound over to the court of common pleas, and that the indictment found by the grand jury charged them with the same offense. But the record does not stop here. It appears that the same grand jury at the same time, and we think on the same testimony, found and returned another indictment, styled in the record as an indictment for assault with intent to rob. We do not find a copy of this indictment in the record, but we think it is entirely clear that it was found on the same testimony that supported the indictment for blackmailing which was quashed, and that it covered the precise criminal transaction set out in that indictment. It appears that there was but one encounter between the parties, and that was on the second of January, 1901, and that after the grand jury heard Gaiser and the other evidence which he furnished, and perhaps on advice of the prosecuting attorney, the two indictments were found upon the same testimony. It is not claimed that Gaiser was twice heard before the grand jury, or that there were two separate examinations, which resulted in the' two indictments. The petition does not allege'that plaintiff was arrested on the indictment for assáult with intent to rob, and the record shows his bond was fixed at $200 and that he remained at large on such bond until the indictment was dismissed on the twenty-fifth day of November, 1902.

Such, being the facts as we glean, them from the record, what is the character of the second indictment as compared with the other.

The crime of committing an assault with intent to rob is defined by section 6821, Revised Statutes: —“Whoever assaults another with intent to kill or commit robbery * * * shall be imprisoned in the penitentiary not more than fifteen years nor less than one year.” There is one element common to both indictments, namely, an unlawful attempt to obtain the property of another. In one it was charged, that with menaces and threats to do bodily injury to Gaiser, the accused parties demanded of him the sum of $4,000. In the other it was charged in substance, that the same parties on the same day and at the same place, attempted to gain the same •property through robbery. Both sections of the .statutes whose violation was alleged in the respective indictments, are found in the same title and chapter, under the title of “Crimes against the person.”

The two indictments had a common root. Gaiser, ■on appearance before the grand jury, furnished the facts from which both indictments sprang. The •dual form of the charge was at the instance, no •doubt, of the counsel for the state. Again, had the indictment for assault with intent to rob been prosecuted to the conviction of Hurleman, he would have been convicted for the transaction of January 2, 1901, for the occurrences of that day would have been marshaled to secure such conviction.

The action in the trial court for malicious prosecution which we are reviewing, was commenced on the fourteenth of August, 1901, and the indictment for assaulting Gaiser with intent to rob, was pend'ing until November 25, 1902, and of course the prosecution on that indictment was not legally terminated when the action was commenced. That the criminal prosecution had ended prior to the beginning of the civil suit for damages on account of the same, is' of vital importance. As said by Bigelow in his work on Torts, marginal page 183, “if the suit for the alleged malicious prosecution should be permitted before the prosecution itself is terminated, inconsistent judgments might be rendered, — a judgment in favor of the plaintiff in the action for the prosecution, and a judgment against him in that prosecution; and it is often said that judgment against the party prosecuted, would show, and that conclusively, that there was probable cause for the prosecution.” This statement is qualified in the next section, where the author says, — “but since conviction would show that the charge was not false, the prosecution could not have been wrongful.” The termination of the prosecution need not be by a verdict of acquittal, but may be by an authorized nolle prosequi, or other form of legal discharge.

In Newell on Malicious Prosecution, 358, the author says: “It is a well settled rule of law that when a party is arrested and bound over on a criminal charge, he must show, in order to prove a discharge and a termination of the prosecution, that no bill was found against him by the grand jury. The complaint in such case, being only a preliminary step, is regarded as part of the proceedings which are subsequently .continued in the court to which the party is bound to answer to that which may be found against him by the grand jury. But it does not follow that the prosecution originally commenced by complaint before a magistrate is terminated because the accused party is not charged by indictment with precisely the same offense as that set out in the complaint. If on the same evidence, the grand jury present an indictment for a different offense from that charged before the magistrate, it does not destroy the identity of the prosecution, but only shows that different minds arrive at different conclusions from proof of the same facts. The prosecution commenced against the party still continues, and cannot be said to be at an end, until the indictment found by the grand jury is finally disposed of.”

This authority is precisely in point in the case at bar, and if sound, controls its decision. Is it sound?

In Schippel v. Norton, 16 Pac. Rep. (Kan.), 804, it appears, that on the twenty-seventh of December, 1879, Norton, Wagstaff, and another, through a mistake of boundary lines, went upon the land of Schippel, and cut down and carried away one or more trees standing and growing thereon. Immediately thereafter Schippel consulted the county attorney, and stated to him the facts, and the attorney advised the commencement of a criminal prosecution against Norton and the others. Such prosecution was commenced before a justice of the peace of the county, on December 31, 1879, the county attorney having charge of the same. On January 6,1880, the county attorney dismissed this prosecution, and on the same day commenced a new prosecution against the same parties in the district court for the same offense. Afterwards, and before the latter prosecution was ended, Norton brought suit against Schippel for malicious prosecution. The supreme court held that, “Where a criminal prosecution is commenced before a justice of the peace, and is afterwards dismissed, with the intention of commencing it again in the district court, and on the same day it is commenced in the district court, the criminal prosecution before the justice of the peace cannot constitute the basis of an action for a malicious prosecution while the criminal prosecution is still pending in the district court.”

In Bacon v. Towne et al., 58 Mass. (4 Cush.), 217, it is held that: “If, in an action for a malicious prosecution in instituting proceedings before a magistrate against the plaintiff on a criminal charge upon which the plaintiff was bound over and subsequently indicted, it appear that the indictment has been withdrawn by a nolle prosequi on account of a formal defect therein, and that a second indictment has been returned upon the same evidence, for the same or a substantive part of the same charge, the original complaint and the proceedings thereon must be considered as the actual cause, of the second indictment.” The opinion of the court was rendered by 'Chief Justice Shaw. •

In Bacon v. Waters et al., 84 Mass. (2 Allen), 400, it was held that, “if one who is charged with larceny in a complaint before a magistrate, is held under recognizance to answer before the superior court, but not at the next, or any regular term thereof, and at the next term of that court is indicted by the grand jury, on the same evidence which was before the magistrate, for fraudulently receiving the stolen goods, and not for the larceny, and the indictment is placed on file and not pleaded to, the finding of the indictment is to be regarded as a continuance of the same prosecution, and placing it on file is not a termination thereof, so as to authorize the person indicted to maintain an action for malicious prosecution. ’ ’

The opinion of the court by Bigelow, C. J., furnishes cogent reasons for the foregoing proposition.

It is claimed by the defendant in error, that the indictment for assault with intent to rob was not instigated by G-aiser, because it was endorsed— “Indictment found on testimony sworn and sent to the grand jury at the request of the prosecuting attorney, ’ ’ and therefore such indictment was not a continuance of the prosecution instituted by Gaiser before the justice of the peace. But we think such is not the function or effect of the endorsement. Section 7207, Revised Statutes, provides: “No indictment for a misdemeanor shall be found a true bill by the grand jury unless the name of the prosecuting witness is endorsed thereon, unless such bill is found upon testimony sworn and sent before the grand jury at the request of the prosecuting attorney, or of the foreman of the grand jury, in which case, the fact that the bill was so found shall be endorsed on the bill; but it shall not apply,” etc., to indictments under certain sections of the statute.

Each of the indictments we are considering, charged a felony, and not a misdemeanor, and there was no requirement or authority for the endorsement upon the indictment. Not being authorized, it proves nothing upon the subject. Besides, we have found from the evidence introduced by the plaintiff and from the circumstances attending it, that both indictments were found upon the same evidence on the same day, and that they were a continuance of the prosecution which Gaiser instituted before the justice — all growing out of' the single alleged criminal transaction on the second day of January, 1901.

We are of the opinion therefore, that the criminal prosecution was not ended prior to the commencing of the action under consideration, and that this appears without contradiction in the plaintiff’s evidence, upon which the court should have directed a verdict in favor of defendant.

The court of common pleas heard the entire case, hut there was nothing offered by the defense to show that the prosecution had ended. It was a part of the answer that the prosecution was not ended prior to the filing of the petition for malicious prosecution.

These views lead us to reverse the judgments of the circuit and common pleas courts,, and on the ground that it cléarly appears that the criminal prosecution was not ended when the action for damages was commenced, we render judgment for the plaintiff in error.

Judgment reversed.

Shauck, C. J., Summers, Davis and Spear, JJ., concur.


author: Shauck, C. J.

text:
    The General Cartage and Storage Company v. Cox.

      Corporation for the storage of goods — Insurance of goods incident to storage — Agreement to insure goods for bailor — By agent for bailee without express authority — Liability of corporation — Agency.
    A corporation engaged in the business of storing goods for hire is bound by a stipulation to effect insurance on goods stored with it, the stipulation being incident to a contract of bailment executed in its name by an agent who, though without express authority to stipulate to insure, is by it held out to the public as authorized to make contracts for storage in the conduct of its business, the bailor acting in good faith and without notice of any limitation upon the agent’s authority.
    (No. 9399
    Decided May 22, 1906.)
    Error to the Circuit Court of Cuyahoga county.
    Cox brought suit in the court of common pleas against the Storage Company to recover for a breach of its alleged contract to procure insurance on goods stored by him with it and destroyed by fire while uninsured. He alleged that on October 4, 1902, the parties entered into a contract whereby the Company, which as its name indicates was a warehouseman, agreed to store in its warehouse his household goods of the value of $850.00 and to have the same insured in the sum of $500.00 while they should be in its possession; that he delivered the goods to the Company in pursuance to said contract; that it failed to procure any insurance whatever on them, and that on about January 10, 1903, a fire occurred to said warehouse and the goods were wholly destroyed.
    The Company answered admitting its corporate character; the reception of the goods for storage and their destruction by fire; and denying all the other averments of the petition.
    On the trial of the issues to a jury the plaintiff’ introduced evidence tending to show that having ordered that vans of the Company he sent for his goods, and the vans not having arrived, he hastened to the warehouse of the Company and inquired of a young man on duty in the office and apparently in charge of it where the manager was. He was told that the manager was up stairs and would he sent for. Shortly an employe of the Company named H. E. Smith, who was a stranger to Cox appeared in response to the summons and said that he was the manager. Cox then explained his insistence that the vans should he sent promptly for his goods because he had procured tickets for New York and the time for the departure of his train was near at hand and that before going he desired to see his goods properly in place in the warehouse and to effect their insurance. In response to the latter suggestion Smith said: “Let us take care of that for you.” After some conversation as to the character and rates of the proposed insurance Cox accepted the suggestion thus made to him and Smith said: “We cannot hand you the policy now hut will send it to you.” Smith then made a written memorandum of the amount of the policy desired and of the New York address of Cox and added that as he had a hank account in Cleveland, he could send a check for the premium when he received the policy. A few days later a letter written on the head of the Company and bearing its name in the proper place for its signature, attested, “per H. E. S.” was sent to Cox at his New York address stating that insurance for $500.00 had been effected hut that the policy was not forwarded because of doubt as to the precise amount of insurance which he desired. The testimony offered by the Company was that Smith was not manager for it but in his absence acted in his stead; that it was not engaged in the business of insuring goods left in its care; that it had given Smith no authority to bind it by contracts of this character and that he did not report to it any insurance which he effected upon goods deposited with it. The value of the goods was proved by Smith as alleged. The jury returned a verdict for the plaintiff and the defendant’s motion for a new trial was overruled. On petition in error the circuit court affirmed the judgment of the court of common pleas.

      Messrs. White, Johnson, MoCaslin & Gannon, for plaintiff in error.
    If anything is well settled it is that neither the fact nor extent of a pretended agency may be proven by statements, declarations or admissions of the person claimed to be an agent. If this fundamental principle needs any citation of authority, we call your Honors’ attention to the following: Meehem on Agency, sec. 100.
    The declarations of the alleged agent are not competent to prove such agency although they are accompanied by acts purporting to be acts of agents. 1 Jones on Evidence, sec. 256: Tiffany on Agency (1903), p. 247.
    His power to make admissions rests upon the very fact that he is agent and has authority to make the statement which constitutes the admission. To receive his statement as an admission of that authority would be to proceed in a circle. Tiffany on Agency (1903), pp. 256-7; 1 Am. & Eng. Ency. Law (N. S.), p. 690; Reinhard on Agency (1902), sec. 353; Belting Co. v. Gibson, 68 Ohio St., 442.
    If the admissions of an agent are incompetent to establish his agency, so is his conduct; and this, letter in the absence of any proof of the person who wrote it was not proper evidence for the purpose of fixing a liability upon the defendant company. Huffcut on Agency (2 ed.), 178, sec. 137.
    The rules as to the liability of a principal for the acts of his agent, and the liability of a master for the acts of his agent are, in effect, the same. Belting Co. v. Gibson, 68 Ohio St., 442.
    If the servant step aside from his master’s business for however short a time, to do an act not connected with such business, the relation of master and servant is for the time suspended. Railroad Co. v. Little, 67 Ohio St., 91.
    True it is that he lightly touched upon the subject in his charge to the jury, but the error of the admission of this testimony and the error of his refusal to charge as requested were not cured by such reference in the general charge. Huffcut on Agency (2 ed.), 178.
    All the testimony is to the effect that no officer of the defendant company knew that Smith was-engaged in the business of insuring its customer’s goods, and this testimony remained uncontradicted, and the jury should have returned a verdict in accordance therewith.
    The authority of an agent seems to be express, implied or apparent. Express authority, of course, speaks for itself. Implied authority is in addition to that which is expressed, and is authority to do-those things usually and necessarily incident to the expressed powers. 1 Am. & Eng. Ency. Law (2 ed.), p. 988.
    It is manifest in this case that Mr. Smith had no express authority to do the act claimed, inasmuch as all the testimony shows he was simply a bookkeeper employed for that purpose.
    In order, then, to hold the defendant company, it was necessary to establish that the act was within his implied or apparent authority.
    It cannot be said under the testimony in this case that the act of insuring the goods was usually and ordinarily connected with the business of storing goods, in view of the fact that the evidence discloses that such a thing was never done. Therefore, the power could not have been implied as a part of the business.
    Was the act, then, within the apparent authority of Smith?
    A liability upon the basis of an act committed within an agent’s apparent authority rests in its last analysis upon the doctrine of estoppel. The apparent authority which will bind the principal binds him because there has been some act of commission or omission on his part which the law will not permit him to deny, and by which the rights of other persons have been affected. 1 Am. & Eng. Ency. Law (2 ed.), p. 989; Tiffany on Agency, p. 183.
    There was nothing in this case in the way of an act of omission or commission on the part of the defendant company by which Smith was held out as having any authority in regard to insuring goods; but it is manifest that in so agreeing to insure, Smith was not acting within the course of his employment as bookkeeper, was not serving his principal, and was not acting within the scope of his authority. The reasonable conclusion is that in agreeing to insure the plaintiff’s goods, he was the plaintiff’s and not the defendant’s agent. Rice v. Peninsular Club, 56 Mich., 82; Lumber Co. v. Williams, 73 Mich., 86; Bank v. Graham, 109 Mass., 519; Edwards v. Dooley, 120 N. Y., 540; Huffcut on Agency (2 ed.), 178, sec. 137; Bank v. Bank, 6 Circ. Dec., 452; 10 C. C. R., 233; Railway Co. v. Wiseman, 1 Circ. Dec., 134; 1 C. C. R., 246.
    In conclusion we believe that the ultimate question involved in this case is finally disposed of in the case of The Bradford Belting Co. v. Gibson, 68 Ohio St., 442.

      Mr. E. J. Thobabén, for defendant in error.
    It is well settled that a warehouseman or corporation engaged in the warehouse business may act as insurers of goods placed in the warehouse while so placed, or they may insure as bailees and be liable to their bailors for the proceeds of the insurance.

      Watkins v. Durand, 1 Port., 251; Savage v. Insurance Co., 36 N. Y., 655; De Forrest v. Fulton Ins. Co., 1 Hall, 136; Sideways v. Todd, 2 Stark, 400; Home Ins. Co. v. Warehouse Co., 93 U. S., 527; Walters v. Insurance Co., 5 El. & Bl., 870; Hough v. Insurance Co., 36 Md., 398; Insurance Co. v. Jackson, 16 B. Mon. (Ky.), 242; Lee v. Adsit, 37 N. Y., 90; Siter v. Morris, 13 Pa. St., 218; Pelzer Mfg. Co. v. Insurance Co., 41 Fed. Rep., 271.
    "Where warehouseman agrees to insure property stored with him, he is liable to the owner for any loss arising from his failure to do so. Deming v. Merchants Cotton Press Co., 90 Tenn., 306; Lan

      caster Mills v. Cotton Press Co., 89 Tenn., 1; Cole v. Favorite, 69 Ill., 457; Conover v. Wood, 48 Minn., 438.
    It is incident to the business of a warehouseman to insure or cause insurance to be effected on property within his warehouse.
    The corporation (plaintiff in error) created the situation by which defendant in error was led to rely upon the contract made with the corporation by the man apparently in charge of its business at the time he called there, and who actually, for the time being was in charge of its business. The business transacted was within the usual course of business of the corporation, and from .appearances thus created by plaintiff in error, Smith had full authority to transact all business for the corporation which the corporation itself had a right to transact.
    This leaving Smith in charge of its office and putting it in his power to transact business in the name of the Company creates an .apparent authority which the corporation is estopped to deny. Huffcut on Agency (2 ed.), secs. 52-52a; Insurance Co. v. Kelly, 24 Ohio St., 345.
    Plaintiff in error says it never authorized Smith to have property stored in the warehouse insured or to agree to have it insured.
    The question as to whether an agent was acting for the principal is a question of fact to be submitted to the jury, and the master cannot exempt himself from liability because the agent disregards the rules laid down by the master. Railway Co. v. Little, 67 Ohio St., 91; Thompson’s Ohio Trial Evidence, sec. 428; citing Kehm v. Insurance Co., 11 Dec., 739-746.

      Notwithstanding private instructions, a person held out as general agent, and which conduct raises an implication of agency, will have authority consistent with the usual course of business in which he acts as agent. 1 Am. & Eng. Ency. Law (2 ed.), p. 992; Doan v. Duncan, 17 Ill., 272; Insurance Co. v. Advance Co., 80 Ill., 549; Insurance Co. v. Eshelman, 30 Ohio St., 648.
    The agency was established by the circumstance of Smith being left in charge of the business,' and this conversation was such a part of the transaction that it was necessary in order to explain the actions and situation of the parties. It was made at a time and under such circumstances that it was a part of the res gestae of the whole transaction. If it had been ruled out or disregarded, the conduct of the defendant in error and of the agent, in the position he had been placed by the principal, would have been meaningless. The acts of the parties would have been ‘ ‘ dumb. show. ’ ’ Insurance Co. v. Tobin, 32 Ohio St., 77; Elliot on Evidence, sec. 252; Huffcut on Agency (2 ed.), secs. 138-139.
    The Company, by placing Smith in charge of its office with all the appearance of possessing the power which he exercised, would work a fraud on innocent persons dealing with him relying on his apparent authority as agent.
    They are estopped on the principle that a person cannot show his own fraud in order to relieve himself from liability..
    If they had been permitted to show secret instructions limiting the apparent authority of its agent, an authority which he apparently had and which was impliedly given him by the conduct of the principal, it would have worked a fraud on defendant in error. Huffcut on Agency sec. 52; Thompson’s Ohio Trial Evidence, sec. 428; Insurance Co. v. Kelly, 24 Ohio St., 345; 1 Am. & Eng. Ency. Law (2 ed.), p. 990.
   Shauck, C. J.

It cannot be claimed upon the evidence that the Storage Company was accustomed to insure goods left in its care, nor that Smith had express authority to make the particular contract set out in the petition or like contracts for insurance with others who deposited their goods with the Storage Company. Nor can it be said that such authority was implied in the sense that the making of the contract to insure was indispensable to the execution of his authority to receive goods for the Company on bailment. Nor should there be any dissent from the legal proposition which counsel for the Company advances in support of the criticisms of the rulings of the trial judge as to the competency of evidence and his instructions to the jury, viz., that the authority of an agent cannot be proved by his own declarations. But the question by which the liability of the Storage, Company must be determined is, was it within Smith’s apparent authority to make the contract counted upon in the petition? It does not seem important that Smith was not in fact the Company’s manager, for he appeared in that capacity at the time of this transaction when the manager was absent, and it is clear that in the absence of the manager he was authorized to act in his stead in the reception of goods for storage. His authority would not have been greater if he had regularly occupied the position of manager for the Company. Counsel for the Company insist that in determining whether Smith had such apparent authority to make the contract for insurance that Cox might rely upon it, it is the conduct of the Company that is to be considered. The soundness of this proposition should be conceded for it is supported by the decided cases and by the reasons involved. The Company fixed the character of its business and employed Smith in the capacity in which he was presented to those who appeared in response to its invitation to the public to store goods with it for hire. It was not an employment of a transient character or to represent it in the conduct of an isolated transaction, but in the general conduct of a business of established and defined character and scope. In the relation into which the parties were brought by the regular and usual conduct of that business the bailee, though not authorized to issue policies of insurance, was authorized to secure insurance upon goods stored with it even without the express assent of the bailor and to effect such insurance for the benefit of both parties to the contract of bailment. If insurance is effected by the bailee apparently for his own exclusive benefit he will nevertheless by legal construction be held to be a trustee for the bailor as to the surplus. The frequency with which this authority is exercised by bailees of the character of plaintiff in error is suggested by the reported cases. A number of them are cited in the briefs submitted in the present case and they are in entire accord with respect to the doctrine stated. It is to the relation into which the parties were thus brought by the express and confessedly authorized contract of bailment in connection with the facts found in the statement of the case that we are to apply the rules of law respecting the apparent authority of an agent. A correct .statement of the matured view of that subject will show that it does not have exclusive regard to the immunity of the principal without consideration of the rights of those who accept his invitation to enter into contract relations with him. That view is comprehensively and accurately stated in Johnston v. Milwaukee and Wyoming Investment Co., 46 Neb., 480. “Where a principal has by his voluntary act placed an agent in such a situation that a- person of ordinary prudence, conversant with business usages, and the nature of the particular business, is justified in assuming that such agent is authorized to perform on behalf of his principal a particular act, such particular act having been performed the principal is estopped as against such innocent third person from denying the agent’s authority to perform it.” It is an obvious limitation upon the liability of the principal that he who deals with the agent must act in good faith, respecting every restriction upon the agent’s authority of which he may have notice. The most careful scrutiny of the record in the present case discovers no suggestion of the want of usual prudence or good faith on the part of the bailor. . The rulings of the trial judge respecting the competency of evidence and instructions to the jury are consistent with these views and the judgment is affirmed.

Affirmed.

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


author: Davis,' J.

text:
    Gill et al. v. Fletcher.

      Construction of language in deed — Whether creating reservation ■ or exception from grant — Intention of parties — Conveyance of fee simple estate in lands — Excepting mineral rights— Question of surface and sui-surface rights — Statute of limitations.

    1. Whether the language used in a deed creates a reservation or exception from the grant depends upon the intention of the parties as evinced by a construction of the- whole instrument in the light of the circumstances of each case.
    2. Where the owner of a fee simple estate in lands conveys the lands to another in fee simple, reserving one-half of the mineral which may thereafter be found on said land and declaring that the grantee, his heirs and assigns shall have and hold the land and its. appurtenances, “the half of the mineral only excepted,” such conveyance creates an exception to the grant, leaving in the grantor and his heirs a fee simple estate in one-half of the mineral separate and distinct from the estate in the surface and the other half of the mineral conveyed to the grantee.
    3. Under such a deed the sub-surface rights will not be lost by nonuser, nor by constructive possession under color of recorded deeds which are silent as to the excepted mining rights; but to bar such rights under the statute of limitations the possession must be actual, open, notorious, continuous, exclusive and adverse, shown by overt acts of unequivocal character which clearly indicate an assertion of ownership of the premises to the exclusion of the rights of the real owner.
    (No. 9450
    Decided June 12, 1906.)
    Error to the Circuit Court of Ottawa county.
    This action was begun in the court of common pleas of Ottawa county by the plaintiffs in error, who were plaintiffs below, -to quiet title to certain lands, which are now a part of said Ottawa county; and also to restrain the defendant from interfering in any manner with the right of plaintiffs in the premises and from preventing the plaintiffs from going upon the premises and removing one-half of the gypsum, or plaster, therefrom, and for other relief. The case was tried in the court of common pleas and also in. the circuit court on appeal, and in both courts the judgment was in favor of the defendant. The circuit court made findings of fact separate from its conclusions of law, from which findings it appears: that on the fifth of October, 1838, one Joseph Gill and his wife, residing in the county of Jefferson, Ohio, conveyed the lands in question to one Jesse Payne, who resided in Berkley county, Virginia. The lands were described as the east half of section nine, etc., “joining a fracr tional school section on the Sandusky Bay near Lockwood’s Plaster Beds and containing three hundred and seventeen acres more or less; the said Joseph Gill reserving the one-half of the plaster or the profits thereof which may hereafter be found on said land. To have and to hold the same hereby conveyed with all and singular the premises and every part and parcel thereof with every of the appurtenances (the half .of plaster as above described only excepted) unto the said Jesse Payne, his heirs and assigns forever.” The grantor, Joseph Gill, was born in February, 1763, and the grantee, Jesse Payne, was born in 1776, and they were acquainted with each other at the time of this conveyance. The said Joseph Gill died intestate as to the property which is the subject of this action, and it descended to his son, John W. Gill, who died intestate about 1872, leaving the plaintiffs herein, who are all nonresidents of the state of Ohio, his only heirs at law. In the lifetime of Jesse Payne he entered into a written agreement with his son, A. C. Payne, whereby he agreed to convey to the latter ninety-seven and one-half acres of the land described in the deed aforesaid, and afterwards snch proceedings were had in the court of common pleas of Ottawa county, that on or about the twentieth of February, 1866, Amos Payne, as executor of the last will of Jesse Payne, was authorized and directed to execute this written agreement by a deed conveying the said ninety-seven' and one-half acres to A. C. Payne, his heirs and assigns forever; which the executor accordingly did • convey. Neither the agreement between Jesse Payne and A. C. Payne, nor the deed from the executor of Jesse Payne to A. C. Payne, contained any restriction, limitation, reservation or exception whatever, but by its terms purported to convey to A. C. Payne in fee simple every right and interest in the premises described. That deed was filed for record on the twelfth of October, 1866, and was duly recorded in the record of deeds of Ottawa county, and A. C. Payne went into possession of the premises under the claim of title described and conveyed by said deed, without knowledge of any claim of the plaintiffs or those under whom .they claim. The deed from Joseph Gill to Jesse Payne, however, was recorded on the third day of December, 1838, in the record of deeds of Erie county, and the same was not recorded, nor a transcript of the records of Erie county relating to the premises described in the deed was not recorded in Ottawa county before the year 1888. The deed from the executor of Jesse Payne to A. C. Payne covers the land which is now held by the defendant in this action, James Fletcher, who holds by mesne conveyances. None of the deeds from A. C. Payne down to the defendant herein contains any restriction, limitation, reservation or exception whatever. The defendant,' Fletcher, and those under whom he claims? successively went into possession of the premises described in the deed to Fletcher by virtue of their respective deeds, and for more than thirty-five years next prior to the commencement of this action they have been in actual, notorious and uninterrupted possession of the premises, and have cleared, cultivated, used and improved the same for agricultural purposes only under claim of ownership of the same and every right, title and interest therein by virtue of the said deeds. There is no affirmative evidence that Joseph Gill or John W. Gill, or any of the plaintiffs, had any actual knowledge of the claim of exclusive ownership by the defendant and his predecessors in title, prior to the year 1902. On the fifth day of October, 1838, the date of the conveyance by Joseph Gill to ■ Jesse Payne, gypsum, otherwise called- plaster, was not known to exist upon the land described in the deed, but a large deposit of plaster was at that time known to exist about one and one-half miles east of the premises described in the deed, which deposit was known as Lockwood’s Plaster Beds, as mentioned in the deed. Those deposits of plaster existed in certain strata, the first or upper stratum being near the surface and broken and not continuous. Between the different strata of plaster there were layers of limestone. On the fifth of October, 1838, and up to about the year 1864, only the upper stratum was known to exist, and it was obtained by quarrying or stripping the earth therefrom, and was taken in the form of bowlders or chunks ranging in size from the size of one’s fist to many tons in weight, and after 1864 a lower stratum was found from which, the gypsum was obtained by stripping the earth from the same and then replacing the earth after the gypsum had been taken out. About the year 1900, other' valuable deposits of gypsum or plaster were found to exist about one-half mile west from the premises in possession of the defendant, which gypsum existed wholíy beneath the surface of the earth, and since that time extensive operations for mining have been conducted west and east of the premises of the defendant. But after the gypsum has been removed from between the strata of limestone there have, been some cavings in of the earth and the surface has been to some extent interfered with for farming purposes. No plaster has ever been actually found of taken from the surface, or from beneath the surface of the defendant Fletcher’s land, nor has there been any mining or •exploration for gypsum conducted on or under said premises. But the court finds from the evidence that gypsum, or plaster, exists thereunder and probably in quantities that would make it profitable to mine the same. This proceeding in error is prosecuted to reverse the judgment of the circuit court.

      Mr. Scott Stahl and Mr. S. P. Alexander, for plaintiffs in error,
    cited and commented upon the following authorities:

      Weakland v. Cunningham, 7 Atl. Rep., 148; Sloan v. Furnace Co., 29 Ohio St., 568; Wolfe v. Scarborough et al., 2 Ohio St., 368; 2 Devlin on Deeds, sec. 836; Am. & Eng. Ency. Law, 457; Deering v. Proprietors of Long Wharf, 25 Me., 51; Congregational Society of Halifax v. Stark, 34 Vt., 243; Henderson v. Mack, 83 Ky., 379; 1 Jones on Real Property, sec. 566; 1 Washburn on Real Property (4 ed.), 17; Wardell v. Watson, 93 Mo., 107; Hartwell v. Camman, 10 N. J. Eq., 128; Kincaid v. McGowan, 88 Ky., 91; Marvin v. Brewster Coal & Mining Co., 55 N. Y., 538; Edwards v. McClurg, 39 Ohio St., 41; 3 Washburn on Real Property, 134; Campau v. Lafferty, 50 Mich., 118; Sydnor v. Palmer, 29 Wis., 227; Gordan v. Eans, 97 Mo., 588; Whiting v. Edmunds, 94 N. Y., 309; Piatt v. Longworth, 27 Ohio St., 198; Elsenheimer v. Sieck, 8 Dec. Re., 101; 5 W. L. B., 645; Cincinnati College v. Yeatman, 30 Ohio St., 276; Jones on Real Property, sec. 538; Armstrong v. Copeland, 53 Pa. St., 284; 1 Am. & Eng. Ency. Law (2 ed.), 873; Turner v. Stephenson, 72 Mich., 409; Pearne v. Coal Creek Co., 90 Tenn., 619.

      Mr. Wm. C. Wierman, for defendant in error,
    cited and commented upon the following authorities:

      Coleman v. Chadwick, 80 Pa. St., 81; Sloan v. Furnace Co., 29 Ohio St., 568; Wiley v. Sirdorus,. 41 Ia., 224; Smith v. Higbee, 12 Vt., 113; Gould v. Coal Co., 2 DeG. J. & S., 600; Crouch v. Sheppard, 4 Coldw., 389; Curtis v. Gardner, 13 Metc., 461; Bean v. French, 140 Mass., 229; Ashcroft v. Railroad Co., 126 Mass., 196; Kister v. Reeser, 98 Pa. St., 1; 42 Am. Rep., 608; Jones on Real Property, 456; Williams v. Coal Co., 37 Ohio St., 583; Howk v. Minnick, 19 Ohio St., 462; Hogg v. Beerman, 41 Ohio St., 81; Bean v. French, 140 Mass., 229; 1 Devlin on Deeds, sec. 222; Ashcroft v. Railroad Co., 126 Mass., 196; 3 Washburn on Real Property (4 ed.), 443; Hornbeck v. Westbrook, 9 Johns., 73; 1 Wood Conv., 228; Seymour v. Courtenay, 5 Burr., 2814; Bean v. Coleman, 44 N. H., 542; Marvin v. Iron Co., 55 N. Y., 538; Angell on Limitations, 413; Jackson v. Porter, 1 Paine C. C., 457; Prescott v. Nevers, 3 Mas., 330; Prescott v. Nevers. 4 Mas., 326; Pearsal v. Thorp, 1 Vt., 92; Jackson v. Thomas, 16 Johns. (N. Y.), 293; Proprietors of Ken. Purchase v. Laboree, 2 Me., 275; Bogardus v. Trinity Church, 4 Pai. Ch., 178; Jackson v. Sheldon, 5 Cow., 448; Payne v. Cooksey, 8 Dec., 407; 7 N. P., 90; Humphries v. Huffman, 33 Ohio St., 395; Youngs v. Heffner, 36 Ohio St., 232; Clymer v. Dawkins,, 3 How., 674 (11 L. ed., 778); Harvey v. Briggs, 10 L. R. A., 62; Bromall v. McCallion, 6 Cent. Rep. (Pa.), 715; Day v. Davis, 64 Miss., 253; Wright v. Kleyla, 104 Ind., 223; Ewing v. Burnet, 36 U. S., 41 (9 L. ed., 624); Dryden v. Newman, 116 Ill., 186; Bradstreet v. Huntington, 30 U. S., 402; Rutter v. Small, 10 Cent. Rep., 112; 68 Md., 133; Logan v. Pierce, 66 Tex., 126; Hasbrouck v. Burhans, 42 Hun, 376; Barclay v. Howell, 31 U. S., 498 (8 L. ed., 477); Railroad Co. v. Obert, 1 Cent. Rep., 384; 109 Pa., 193; McAllister v. Hartzell, 60 Ohio St., 69; Townsend v. Eichelberger, 51 Ohio St., 213; Nance v. Fore, 24 Cal., 435; Hager v. Spect, 52 Cal., 579; Dunn v. English, 23 N. J. Law, 126; Adams v. Frothingham, 3 Mass., 352; Mills v. Catlin, 22 Vt., 98; Watson v. Boylston, 5 Mass., 411; Middleton v. Pritchard, 38 Am. Dec., 112; Cocheco Mfg. Co. v. Whittier, 10 N. H., 305; Bushnell v. Proprietor, 31 Conn., 150; Charles River Bridge v. Warren Bridge, 11 Pet., 589; City of Alton v. Ill. Trans. Co., 12 Ill., 38; Rung v. Shoneberger, 26 Am. Dec., 95; Pike v. Munroe, 36 Me., 309; Jackson v. Hudson, 3 Johns., 375; Budd v. Brooke, 43 Am. Dec., 321; 2 Devlin on Deeds, sec. 848; Craig v. Wells, 11 N. Y., 315; Marshall v. Turmbull, 28 Conn., 183; State v. Wilson, 42 Me., 9; Whitaker v.
      Brown, 46 Pa., 197; Munn v. Worrall, 53 N. Y., 44; Moulton v. Trafton, 64 Me., 218; Barnes v. Burt, 38 Conn., 541; 2 Devlin on Deeds, secs. 979, 980; Bryan on Petroleum and Natural Gas, sec. 71; see also notes under the case of Kincaid v. McGowan, 13 L. R. A., 289, and notes under Hagerty v. Lee, 20 L. R. A., 631; Washburn on Real Property (4 ed.), 432; Jackson v. Gardner, 8 Johns., 394; Grubb v. Grubb, 101 Pa. St., 11; Jackson v. Myers, 3 Johns., 388; Esty v. Baker, 50 Me., 331; Melvin v. Proprietors of Locks, 5 Metc., 27; secs. 558 and 560, Rev. Stat.
   Davis,' J.

The plaintiffs in error make two contentions: First, that as to the one-half of the gypsum underlying the land there was a severance of the title in the deed of Joseph Gill to Jesse Payne so that the grantor withheld to himself a fee simple in one-half of the mineral estate and conveyed to the grantee all of the other half of the mineral and all other rights in the land; second, that the plaintiffs in error have not lost their rights in the mineral through adverse possession by the defendant and his grantors.

It is familiar law, already recognized by this court in Burgner v. Humphrey, 41 Ohio St., 340 and 352, that the surface of the land and the minerals underlying it may belong to different owners. The doctrine is thus stated, with citations of a great number of authorities: “It is well settled that a mine may be severed from the surface, the surface being held in fee by one person and the mine by another. The ownership of a mine after severance is to all intents and purposes the same as the ownership of land, and is-attended with all the attributes and incidents peculiar thereto. The mine itself may in turn be divided longitudinally and each stratum become the subject of a grant, the mine thus becoming the property of as many owners as there are different strata. Severance may be accomplished by a conveyance of the mines and minerals only, or by a conveyance of the land with a reservation or exception as to the mines and minerals.” 20 Am. & Eng. Ency. Law (2 ed.), 771-773.

The defendant in the case at bar insists upon the technical distinction between a reservation and an exception, maintaining that, since the language of the deed is, “the said Joseph Grill reserves the half of the plaster, etc., which may hereafter he found on said land” it should be construed as a reservation and not an exception; because the express language is that of a reservation and because it is a reservation of something which was not known to. be in esse at the time of the conveyance, as shown by the words, “which may hereafter be found.” Upon the theory that the deed operated only as a reservation to the grantor of something out of the estate granted, it is urged that whatever rights the grantor reserved to himself expired with his life, because there are no words of inheritance in the reservation. The weakness of this theory lies in the fact that it does not give full force and effect to all the words of the deed. Following and in immediate connection with the language above quoted these words occur, “To have and to hold * * * the half of the plaster as above described only excepted * * *.” This language cannot be overlooked nor thrown out of the instrument. The parties meant something in using it and it can only mean that the grantor excepted out of the estate granted and retained in himself the fee simple, which he already had, in the one-half of the plaster. It cannot be maintained that the plaster was not in esse at the time of the conveyance. With good reason it was at that time believed to exist, although it had not been “found;” and hence the reservation or exception. The court found that it exists now and the necessary inference is that it existed then. The case is not at all like cases in which an estate is granted and at the same time some new right or privilege is reserved out of it to the grantor, as, for example, a right of way or other easement.

It is conceded that if the language of the deed constitutes an exception, words of inheritance are not necessary to transmit the estate to the plaintiffs; but the use of the word “reserve” or “reserving” or of other words of similar import, does not necessarily create a technical reservation. The deed may nevertheless operate as an exception. The construction of the deed is to be drawn from the circumstances of each case and from all the words of the instrument, the object being to ascertain and give effect to the intention of the parties. In this case the words are both “reserve” and “except;” and it seems clear to us that not only the language employed but also the facts found by the circuit court justify the conclusion that it was not the intention of the grantor to reserve to himself merely an' immediate privilege which should expire with his own life, but that it was the intention of the parties to except from the grant an absolute and inheritable estate in the one-half of the plaster beneath the surface of the land conveyed. Hay’s Lessee v. Storrs, Wright’s (Ohio) Reports, 711; Sloan v. Furnace Co., 29 Ohio St., 568; Coal Creek Mining Co. v. Heck, 15 Tenn. (Lea), 497; State v. Wilson, 42 Me., 9; Bridger v. Pierson, 45 N. Y., 601; Wood v. Boyd, 145 Mass., 176; Whitaker v. Brown, 46 Pa. St., 197.

A separate estate in one-half of the mineral having been excepted by the grantor, it becomes a material question whether the rights of the plaintiffs are lost to them by adverse possession. It is not disputed that title to a mine which has been severed from the title to the surface may be acquired by adverse possession; but this can take place only when the possession is actual, continuous, open, notorious and hostile. It cannot be accomplished by secret trespass upon the owner’s rights and it has been held in many cases that, where there has been a severance of estates, neither the owner of the surface nor the owner of the mine can claim the other estate merely by force of the possession of his own estate. Nor does the mine owner lose his rights by mere nonuser. His title can be defeated only by acts which actually take the mineral out of his possession. We cite some of the cases which support the foregoing propositions. Smith v. Lloyd, 9 Exch., 562; Arnold v. Stevens, 24 Pick. (Mass.), 106; Caldwell v. Copeland, 37 Pa. St., 427; Armstrong v. Caldwell, 53 Pa. St., 284; Kingsley v. Coal & Iron Co., 144 Pa. St., 613; Plummer v. Coal & Iron Co., 160 Pa. St., 483; Algonquin Coal Co. v. Coal & Iron Co., 162 Pa. St., 114; Huss v. Jacobs, 210 Pa. St., 145; Marvin v. Iron Mining Co., 55 N. Y., 538.

In this connection it is--proper to direct attention to the' principle that a tenant in common cannot assert title by adverse possession against his co-tenant unless he shows a definite and continuous assertion of adverse right by overt acts of unequivocal character clearly indicating an assertion of ownership of the premises to the exclusion of the right of the co-tenant. This principle has been so-generally recognized by the courts that it may be said to be elementary. It has been distinctly declared by this court in Youngs v. Heffner, 36 Ohio St., 232. Therefore, when by the exception and severance of title in the mineral by the deed, the grantor, Grill, and the grantee, Payne, became tenants in common in the mineral, each owning one-half,, neither the grantee nor those holding under him could acquire title through the statute of limitations as against the plaintiffs unless they are able to show such open and unequivocally adverse possession of the mineral rights as would put the plaintiffs and their ancestors upon notice. Actual possession of the surface and constructive possession of the mineral under color of deeds will not be sufficient. It. must be an actual interference with the seizin of plaintiffs with denial of their title. The record of deeds from Payne’s executor, and of mesne conveyances down to the defendant, which deeds convey the full title with no exceptions or reservations, cannot operate as adverse possession, nor as notice of an adverse claim. The deeds being silent as to the-mining right in Grill and his heirs, which had been severed by the deed from Grill to Payne, they could only be construed as conveying only such title as Payne, or his grantees, had. As to the severed mining estate, a distinct title must be asserted and established. Kincaid v. McGowan, 88 Ky., 92, and cases cited above. There was no open, unequivocal, exclusive and adverse possession in this case; and to hold otherwise, in our opinion, would be inconsistent with, the findings of fact and with the line of decisions which we have cited.

Judgment reversed and judgment for plaintiffs in error.

Shauck, C. J., Price, Crew and Summers, J.J., concur.