text:
    The Cleveland and Pittsburgh Railroad Company v. Joseph L. Ball.
    The opinion of a witness as to the amount of damages which a land owner will sustain by the appropriation of a portion of his land for the purpose of constructing a railroad over it, is not admissible as evidence. Atlantic and Great Western Railroad Company v. Campbell, A. Ohio St. Rep. 583, followed and approved.
    But a witness may be allowed to give his opinion as to the value of the land affected.
    Where in a proceeding by a railroad company to appropriate land for its use, an inquiry of damages is made, and it appears from the direct examination of a witness, that on the tract of land over which the railroad is to be constructed, there are coal mines, and that the building of the road between them and a navigable river would tend to prevent the coal from being taken from the mines to the river, the witness, on cross examination, may be asked whether the facilities of transportation of coal to market would be diminished by reason of the construction of the road.
    Where compensation is claimed for the location and construction of a railroad between coal mines and a navigable river on the land-owner’s premises, whereby the conveniences of the river transportation for the coal to market were injured, or cut off, it is competent for the railroad company to show that the river transportation, in connection with the coal banks, had ceased to be valuable, or become of less value by means of the facilities for coal transportation afforded by the railroad, for the purpose of reducing the damages.
    Where a piece or strip of land is, by appropriation made by a railroad company, severed from its connection with the other land of the owner, in estimating the compensation to be made to the owner, not only is the abstract value of the strip or piece taken to be considered, but also its relative value, and the effect arising from its severance from the residue of the owner’s land, as well as the uses to which it is to be appropriated.
    In case of a railroad appropriation for a right of way through a tract of land, causing incidental and local injury to the residue of the tract, although general resulting benefits from the railroad to the value of such residue of the land cannot be taken into account, in estimating the amount of compensation to be paid the owner; yet where a local incidental benefit to the residue of the land is blended or connected, either in locality or subject matter, with a local incidental injury to such residue of the land, the benefit may be considered in fixing the compensation to be paid the owner, not by way of deduction from the compensation, but of showing the extent of the injury done the value of the residue of the land.
    But in assessing the compensation for a local incidental injury to the residue of the owner’s tract of land, arising from the appropriation of the right of way, and construction of a railroad, whether a local incidental benefit arising from the railroad structure to the residue of the tract, but not connected either in locality or subject-matter with the injury, can be taken into the account in estimating the compensation for the damages, — quere.
    Petition in error to reverse the judgment of the Court of Common Pleas in affirmance of the judgment of the Probate Court of Jefferson county.
    The original proceeding was instituted by the plaintiff, in the probate court of Jefferson county, under the statute of April 30, 1852, relating thereto, for the appropriation of certain land belonging to the defendant, situate in said county, for the purpose of constructing thereon its railroad.
    On the 20th of June, 1853, a jury was empanneled to assess the damages, and sent out to view the premises sought to be appropriated, and on their return into court, the parties called witnesses and examined them before the jury. On this examination, exceptions were taken to the ruling of the probate judge as to the admissibility of evidence ; also to his charge to the jury; and to his refusal to charge as requested by the plaintiff in error.

      A writ of certiorari was afterward prosecuted in the court of common pleas by the railroad company, to reverse the confirmation of the verdict of the jury by the probate court. The order of the probate court was afBrmed by the common pleas, and thereupon the company filed a petition in error in the district court, and the cause was reserved for decision in this court.
    During the trial of the cause in the probate court, the land owner asked a witness this question :
    “ What, in your opinion, is the damage which Joseph L. Ball will sustain by reason of this appropriation ?”
    The question was objected to, the objection overruled, and the witness answered, “ that in his opinion the said Joseph L. Ball sustained damages by reason of the appropriation, to the amount of $5,000 or $6,000.” The answer was objected to, and a motion made that it be withdrawn from the jury ; which motion was also overruled.
    Similar questions calling for the opinion of witnesses as to the gross amount of damage, were put to several other witnesses, and were answered; all objections to the questions and answers being overruled.
    The land owner next offered the following testimony, which was objected to by the railroad company, the objection overruled, and the testimony permitted to be considered by the jury:
    “ That in an adjoining field of the said Ball, and outside of the limits of the act of appropriation, there was a spring of water. That in his opinion the most convenient mode of raising said water, would be to bring the same from the spring to the house of Ball in pipes; and that a pipe from the spring to the house of the said Ball, would cross the strip of land appropriated, at a point where the cut was eleven feet deep ; that in his opinion, the use of the spring would be lost to the said Ball, and that in witness’s opinion he was damaged $1,000 by the loss of the spring; that he was damaged $1,000 by the cutting of the farm; that he was damaged $500 by the cutting off of a road which he had to the hill; that he was damaged $500 by the annoyance of the railroad ; that there was a site for a barn over the limits of the appropriation, but without them, upon which no barn was now situated, and that he was damaged $300 by the loss of that site, and that the land taken was worth $310.”
    The railroad company moved the court to take from the jury each one of those estimates, except that of the value of the land. This motion was overruled, and the whole testimony permitted to go to the jury as it had been testified to by the witness.
    Evidence was further offered by the land owner, that there were valuable coal mines on the tract through which the railroad passes; that the road was located between the mines and the river; and that in the opinion of the witnesses, the railroad would prevent the coal from being transported across it to the river.
    The counsel of the railroad company, in the cross examination of these witnesses, inquired : “ Will the facilities of transportation of coal to a market, be diminished by reason of the construction of this road ?” This question was objected to by the land owner, and the witnesses were not permitted to answer it.
    After the testimony was closed, the court was requested by the counsel for the plaintiff in error to charge the jury, amongst other things, as follows :•
    1st. That in estimating damages to property outside of the limits of the land appropriated, the damages only are to be considered, which necessarily result from the appropriation of the land, and that in estimating such damages they are not to take into account any supposed future damages from the working or construction of said road.
    2d. That in estimating damages, they are not to take into account any supposed future annoyance or damage to persons or cattle, which may be caused by the working of the railroad.
    3d. That it is proper for the jury to consider the benefits, by reason of the appropriation, to the residue of the tract through which the appropriation is made, for the purpose of determining tvhether such residue is injured by the appropriation.
    4th. That if the jury are of opinion that the whole of the residue of the tract through which the appropriation is made, is not diminished in value by the appropriation, that no damages are to be assessed for any injury -which it may be claimed is done by the appropriation to such residue.
    These instructions the court refused to give to the jury, but did charge, them as follows :
    As to the first and second of the propositions asked to be charged—
    “ That in estimating the defendant’s damages, they were to take into consideration such injuries or damages to his property, as might reasonably be looked for and expected as the necessary or natural consequence of the appropriation made by the railroad company, and the construction and use of the work proposed by it; or such as are reasonably to be expected as proximate consequences from the same — that is, near and immediate, and not such as may be merely imaginary, or may by possibility result therefrom.”
    As to the third point requested, the court charged the jury—
    “ That by the constitution of the State, and their oaths, they were required to assess the defendant’s damages or the amount of his compensation, irrespective of any benefit proposed by the plaintiff as a railroad company, and that they were to exclude all real or imaginary benefits from their consideration.”
    As to the fourth point requested, the court charged the jury—
    “ That the constitution of tlie State provided that the compensation shall be assessed by the jury without deduction of benefits to any property of the owner. That to charge the jury as requested, would be asking them to disregard this provision of the constitution as well as art. 13, sec. 5, which provides that the compensation made to the owner of the property, shall be irrespective of any benefits from any improvement proposed by said corporation.”
    Errors are assigned upon the several rulings of the court excepted to, and upon the refusal of the court to charge the jury as requested, and also upon the charge as given.

      R. S. Moody and Eli T. Tappan, for plaintiff in error.

      Stanton & McCook, for defendant in error.
   Bartley, C. J.

The first Inquiry presented in this case, is, whether the court below erred in admitting the opinions of witnesses as evidence to show the damages which the appropriation would occasion to the defendant. This is fully answered by the determination of this court at the last term, in the case of The Atlantic and Great Western Railroad Company v. Campbell, 4 Ohio St. Rep. 583. The general rule that the testimony of witnessees is confined to a statement of facts coming from observation, knowledge and recollection, as distinguished from the mere opinion or inference of a witness, is a safe rule, although subject to numerous exceptions. Opinions are often formed upon slight or inaccurate information, and sometimes the mere dictate of feeling, rather than the exercise of judgment, and therefore to be received with great caution even when competent as evidence.

There are some facts of such a nature as to be incapable of the ordinary means of proof by direct evidence, and consequently resort is had to the best means of proof which the nature of the subject affords. On questions of science, skill, trade, and others of a like nature, experts are allowed to give their opinions as evidence. On questions of pedigree or relationship, character, boundary, and the like; also on inquiries touching the extent of a man’s property, his solvency, health, sanity, affection, antipathy, and others of a similar nature, the knowledge of witnesses is chiefly a matter of opinion, and it is often impossible to enumerate each particular fact from which the knowledge of a witness is derived. And of this nature are inquiries touching the value and quality of property. And in the case of The Atlantic and Great Western Railroad Company v. Campbell, above cited, while the opinions of witnesses as to the amount of damages sustained, are excluded as incompetent evidence, the court did not exclude the opinions of witnesses as to the value of the land, before and after the location of the railroad. It is proper for a witness to describe the particulars of the injury, the manner in Avhich the property is affected, and give his opinion as to the value of the land. And it is for the jury to find from all the facts, from the value of the land, and the extent and manner in which injured, and other circumstances, what amount of damage has been sustained by tho land owner, And to allow witnesses to give their opinions as to the amount of the damages suffered, would permit witnesses to swear to the conclusion which \it is the peculiar province of the jury to deduce from the evidence. Upon this ground, therefore, there was error in the proceedings of the court below.

2d. It appears, that in the further progress of the case before the probate court, evidence was given by the land owner that there were valuable coal mines on his land through which the railroad passes; that the road was located between the coal banks and the river ; and that in the opinion of the witnesses, the railroad would prevent the coal from being carried across the road to the river. On cross examination, the counsel for the company inquired of the witnesses: Will the facilities for transportation of coal to a market, be diminished by reason of the construction of this railroad ?” This inquiry was objected to by the land owner, and the objection sustained, to which ruling an exception was taken.

In this, the probate court manifestly erred. The inquiry was legitimate and proper as coming within the scope of cross-examination ; and it was especially important to show the value, if there would be any value, in the river transportation in connection with the coal banks. This would not be deducting benefits, but simply showing what value there would be in the river transportation to the owner of the coal banks, after the construction of the road ; for that value, so far as affected, would be one of the direct incidental consequences occasioned by the appropriation. If by means of the railroad facilities, the river transportation would be superseded by a cheaper and better mode of transportation, and thus be rendered of but little or no value to the owner, he ought not to be paid a compensation on account of an incidental disadvantage or loss of value which he did not suffer.

3d. The questions arising on the charge of the court to the jury, and the refusal of the court to charge as requested, are comprehended in the following inquiries :

1. In estimating the damages to property outside of the limits of the land appropriated, what compensation for the incidental injury to the value of the residue of the land, is to be taken into the account?

2. Can the damages to the residue of the land through which the appropriation is made, be reduced by deducting therefrom, or setting off against them, the resulting benefits of the railroad to such residue of the land ?

The provisions of the constitution of this State on this subject, are somewhat different from the provisions in the constitutions of some of the other states. “ Full compensation ” is required to be made to the owner in money for the appropriation of his property, as a condition precedent. To be a full compensation, it must be a remuneration or recompense for that detriment or loss to the owner in the value of his propei ty arising from the taking of his property in connection with the use for which it is taken. Where a piece or strip of land is taken and severed by the appropriation from its connection with other land of the owner, some elements of compensation necessarily enter into the computation besides the abstract value of the number of feet or acres of ground actually taken. These elements of compensation may be comprehended in the following: first, the abstract value of the quantity of ground taken; second, the value arising from the relative situation of the land, taken in its connection with the residue of the owner’s land from which it is severed ; and third, the effect upon the value of the residue of the owner’s land arising from the uses for which the appropriation is made. These grounds of compensation will give the land owner á recompense for the loss in the value of his property, caused by the appropriation for the special purposes or use for which it is authorized. Thus far, and thus far only, is the loss in the value of the residue of the land of the owner to be taken into account in making up the amount of the compensation to be paid.

It is said in the work of Redfield on Railways, page 152, It is requisite that the tribunal appraising land damages, for lands condemned for railways, should take into consideration all such incidental loss, inconvenience and damage, as may reasonably be expected to result from the construction and use of the road, in a legal and proper manner. And as all tribunals having jurisdiction of any particular subject matter are presumed to take into consideration all the elements legally constituting their judgments, such incidental loss and damage will be barred by the appraisal, whether, in fact, included in the estimate or not.”

It is true, that speculative prospective detriment or injury to the value of the residue of the land, either by means of the severance therefrom of the land taken, or by the use and workings of the railroad, is not to be taken into the estimate; but the compensation is to be confined to such loss and injuries in the value of the owner’s property, as are appreciable at the time, as the necessary or natural consequences, fairly and reasonably expected to follow, from the appropriation made to the uses of the railroad, including in the incidental injury, to the value of the residue of the land, the deterioration in value from the necessary inconvenience and annoyance in the enjoyment of the same arising from the operation of the railroad. This is in accordance with the rule estimating the compensation in England, which requires that “ regard shall be had not only to tbe land taken, but also to damage by reason of severance from other lands, or otherwise injuriously affecting such lands.”

The second inquiry arising on the instructions of the court to the jury, involves the inquiry whether, in estimating the compensation for the incidental loss or injury to the residue of the owner’s land, the incidental prospective benefits to such residue of the land from the railroad, are to be taken into the account, in reduction of the amount of the loss or injury.

Mr. Redfield, in his work on Railways, page 135, says : In consequence of numerous ingenious speculations in regard to possible advantages arising from the public works, for which lands are taken, the whole subject has become, in this country especially, involved in more or less uncertainty. All the cases seem to concur in excluding mere general and public benefit, in which the owner of land shares in common with the rest of the inhabitants of the vicinity, from being taken into consideration, in estimating compensation.”

It must be conceded, that the rule on this subject, recognized formerly in some adjudications in this State, has been materially changed by the provisions of the present State constitution. By the 19th section of the bill of rights, it is declared, among other things: “ Where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money ; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.”

And, by the 5th section of the 13th article of the constitution, it is further provided, on this subject: No right of way shall be appropriated to the use of any corporation, until full compensation therefor be first made in money, or first secured by a deposit of money to the owner, irrespective of any benefit from any improvement proposed by such corporation.”

Touching the subject of the construction of these provisions of the constitution, this court, in the case of Giesy v. C. W. and Z. Railroad Company, 4 Ohio St. Rep. 332, used the following language : The jury are not required to consider how much, nor permitted to make any use of the fact that, it may have been increased in value, by the proposal or construction of the work for which it is taken. To allow this to be done, would not only be unjust, but would effect a partial revival of the very abuse which it was a leading purpose of these constitutional provisions to correct. It would be unjust, because it establishes for a corporation what is done for no one else, a sort of right in the property of others, to the reflected benefits of its improvement; itself submitting to no reciprocity by affording others a compensation for the effect of their improvements, upon the property of the corporation. And it is doubly unjust, where, as must very often happen, the increase in value accrued to the benefit of a former owner, and has been bought and paid for by the present holder, from whom the property is taken at a diminished price.”

It is insisted in the case before us, that in estimating the compensation for the incidental injury to, or loss of value in, the residue of the tract belonging to the land owner, the incidental local benefits arising from the structure of the railroad, to any part of such residue of the land, must be taken into the account in reduction of the amount of the compensation.

The constitution requires full compensation in money, and prohibits deductions for benefits to any property of the owner, from any improvement proposed by the corporation. It would scarcely be claimed by any one that the compensation required by the constitution was limited to the abstract value of the number of feet or acres of ground taken in the appropriation. The compensation must be broad enough to cover the full loss in value which the owner suffers in his property, by means of the appropriation for the uses for which it is made. Rut although it is not claimed that any deduction is to be made in view of the general prospective or resulting benefits in which the owner shares in common with others in the vicinity of the improvement, and which constituted a leading object in the grant of the important privileges by the State to the company ; yet it is insisted that incidental or local benefits may be conferred on the residue of the owner’s land, by the construction of the railroad, and that in estimating the compensation to be allowed for the incidental injury or loss of value in the residue of the owner’s land, the local benefits to such residue of the land are to be taken into the account and deducted; and that, therefore, the rule of compensation for the loss in the value of the residue of the land, is the loss in value to the whole residue of the tract after deductions or allowances for the local incidental advantages. Where a local benefit or advantage is blended with, or has a direct or immediate connection with, or bearing upon, the local incidental injury, such as appears in this case in the instance of the obstruction of the free and convenient communication between the coal banks and river, which loss may be either totally or partially removed by the facilities for the transportation of coal to market afforded by the railroad, then, the local advantage or benefit may have to be taken into consideration, in order to estimate the extent of the loss, if any, in the value of the property, caused by the injury or disadvantage. Eor if the river transportation for getting the coal to market had ceased to be of any great value, by means of the facilities supplied by the railroad for the transportation of the coal, the owner ought not to be compensated for the disadvantage beyond its actual value to him in the enjoyment of his property. Where, in the construction of a railroad, a ditch or excavation is made, which drains a swamp and renders a part of the owner’s land valuable, which had been previously of little or no value, but the same ditch in draining the swamp, destroys a valuable spring of water, the injury and benefit may be so blended that they must necessarily be taken into consideration in estimating the compensation to be made. But where, in constructing a railroad, two ditches are made, one at one side of the owner’s tract, which benefits the land by draining a swamp, and the other, at the other side of the tract, which destroys a valuable spring; or where the locality and subject-matter of the local benefit and injury are otherwise separate and wholly unconnected, although on the same tract of land, the question may be quite different. And in such case, whether, under the peculiar provisions of the constitution of this State, in estimating the compensation to be made to the owner for the local incidental injury to the residue of his land, any deduction or allowance can be made for such separate local benefit, is a question not necessarily presented in this case, and as to wdiich we express no opinion at this time. The views already expressed in this connection have xgone far enough to show, that there was no error in the instructions of the probate court to the jury.

On the other grounds, however, the judgment and proceedings of the court below are reversed.

Judgment reversed, and cause remanded for further proceedings.


source: Caselaw Access Project

author: Ranney, C. J.

license: Public Domain

text:
    Mart Ann Wagg’s Executor v. Lydia Gibbons.
    A married woman, abandoned by her husband in a foreign country, coming to this Stale to reside, is competent to contract in respect to necessaries for her support and maintenance, and to sue and be sued in the same manner as a femme sole.

    In error to the District Court of Washington county.
    The material facts in this case are stated in the opinion of the court. The answer therein mentioned was/on demurrer in the court of common pleas, held to be a sufficient defense, and judgment was entered accordingly.
    The district court, on error, reversed this judgment of the common pleas; and the present petition in error seeks to reverse the judgment of reversal.

      Charles R. Rhodes, for plaintiff in error.

      Clark & Ewart, J. W. Andrews, and Buell, for defendant in error.
   Ranney, C. J.

The petition alleges that the plaintiff’s testator was married to Edwin Wagg sometime prior to the year 1849, in the kingdom of Great Britain, of which both parties were then citizens. That in May of that year she was abandoned by her husband, who left' Great Britain and went to Asia, and has never returned; and that he left her wholly without any means of support, and has ever since refused to make any provision therefor. In 1850 she came to this State, and has supported and. maintained herself, and dealt as a single woman ; and that in 1854 it came to her knowledge that her husband was in California. An answer insisting upon her coverture as a bar to an action brought for necessaries furnished her during this period, raises the only legal question in the case. If under these circumstances she may contract, and sue and be sued as a single woman, in respect to such necessaries, the answer is no defense to the action. In view of the case of Benadum v. Pratt, 1 Ohio St. Rep. 403, decided by this court in 1853, there would seem to be very little doubt upon the question. It was there held that a woman who had separated from her husband on account of his abuse of her, and to whom a tract of land had been assigned on a petition for alimony, might sue, in her own name without joining her husband, a third person who had taken a crop of wheat from the land ; although her husband still continued to reside in this State, and only a separation de facto existed. That case, it is true, is not in all respects like' the one now before us. But the points of difference are rather in favor than against the present case; and it is most apparent, that a greater restriction of the strict principles of the common law, was required to sustain that case, than is needed in this. At the time that case was decided, the law and chancery jurisdiction of our courts, were distinct and separate. Whatever difference of opinion might then have existed as to the proper form of the remedy, no doubts were, or could have been, entertained as to the propriety of affording the wife a remedy beyond the reach of the husband; and the whole matter has now become entirely immaterial by the adoption of a uniform and single mode of procedure.

The real question here is, when and under what circumstances may a married woman contract .as femme sole ? The common law disabled her to do so, not from any supposed want, of capacity on her part, but because the enforcement of her contracts might interfere with the marital rights of the husband. If she could contract, she could be sued; and if sued, might be arrested and imprisoned ; and the husband thus be deprived of his right to her aid and society. But where the husband himself had voluntarily renounced these rights, and abjured the realm without making suitable provision for her support and maintenance, it has always been held in England, that she might provide for her own support by dealing for herself, and might sue and be sued as a femme sole. In analogy to this doctrine, several cases have been decided by the supreme court of Massachusetts, which cannot fail to receive universal approval for their logical reasoning and good sense. In the case of Gregory v. Paul, 15 Mass. Rep. 31, the husband and wife were British subjects, living in England, until by his neglect and ill treatment she was induced to leave him and come to this country. Coverture being pleaded to an action brought by her, notwithstanding the husband remained in England, and the wife had left her home and come here, the court sustained the action; and upon the ground that her abandonment was compulsory, in order to obtain a living by her industry, which, in their opinion, brought the case within the spirit of the rule above referred to. In the case of Abbot v. Bayley, 6 Pick. Rep. 90, the husband and wife were citizens of New Hampshire until the wife, by the husband’s cruelty, was obliged to separate from him, and afterwards came to Massachusetts. The court, affirming the doctrine in Gregory v. Paul, and applying it as between the several States of the union, held her competent to act as a..single woman in that State; and, therefore, overruled a plea of coverture interposed in an action brought by her.

Of the soundness, good policy, and intrinsic justice of these decisions, we entertain no doubt. When applied to the present case, they fully sustain the judgment of the court below, and it must, therefore, be affirmed.


author: J. R. Swan, J.

text:
    Oliver P. Boyer, relator, v. William D. Morgan, Auditor of State.
    Where an appropriation is made for the purchase of furniture specifically described, and the agent of the State purchases other articles not within the description, the Auditor of State may refuse to draw on the State treasury for the amount, unless the articles not authorized to be purchased are stricken from the claim.
    Motion for a peremptory mandamus.
    The legislature made an appropriation “ for bedsteads, beds, bedding, chairs, tables, table ware, and kitchen utensils,” for the new lunatic asylums.
    The trustees of the two asylums purchased of the relator, under this appropriation and designation, the following described furniture:
    2 Tete-a-tetes, carved, upholstered in broehatelle................. $146 87
    2 French sofas, sweep-backed, rxpholstered with maroon plush, and carved.................................................... 162 58
    12 Parlor chairs, French stitched, upholstered broehatelle, carved fronts and backs............................................ 158 44
    8 Center tables, marble tops, rosewood, mahogany, and walnut____ 251 25
    1 Medallion carved table, legs and stretcher carved, rosewood..... 125 11
    4 Plush arm chairs, carved, upholstered in broehatelle, etc........ 1S4 43
    $1,028 68
    The auditor of State refused to allow the bill, and this manda-) mus is prosecuted to compel him to draw on the above mentioned appropriation to pay the bill.

      P. P. Lowe, for the relator.
    The Attorney General, for the auditor.
   J. R. Swan, J.

Neither the auditor of State, nor this court, can interpose to prevent the trustees frotn selecting such furniture as the taste of the auditor and the court might deem wholly inappropriate for a lunatic asylum. Its shape, color, and material, were left for the determination of the trustees. The price, too, was to be determined by the trustees, unless so grossly exorbitant as to amount to collusion and fraud.

But the sofas are not “ bedsteads, beds, bedding, chairs, tables, table ware, or kitchen utensils.” The appropriation did not cover sofas, and the auditor of State had a right to refuse to draw on the fund until they were stricken from the bill.

Motion for peremptory mandamus overruled.


text:
    Joseph Butler and Elisha Lane v. Jacob Baker.
    B. leased to B. & L. certain premises, for which they agreed to pay him, as rent, a portion of the crop and a certain number of bushels of grain, but no money value was fixed. They occupied the premises, but failed to pay the rent when it became due. Held :
    That the market value of the grain, etc., at the time it should have been delivered, could be recovered upon a common count for use and occupation.
    This is a petition in error to reverse the judgment of the District Court of Muskingum county.
    Baker, the plaintiff in the court of common pleas, declared inassumpsit.
    The declaration contained but one count — the common count for use and occupation.
    Plea, non-assumpsit.
    On the trial, Baker offered in evidence, in support of the declaration, an agreement in writing, signed by himself and Butler & Lane, whereby he leased to them a tract of land, two parcels of which were to be by them put in corn, and the residue in buckwheat, reserving in the agreement as rent, twenty bushels per acre of the corn to be grown upon one, and eighteen bushels per acre of the corn to be grown upon the other of the two parcels to be cultivated in corn; and two bushels out of every five of the buckwheat to be grown upon the remaining parcel ; which corn and buckwheat were, by the terms of the agreement, to be delivered on the premises, at the river, in due season.
    No money rent was reserved; nor was there specified in the contract any money value’ of the corn or buckwheat reserved as rent; nor any liquidated damages stipulated to be paid by the lessees, in the event of non-delivery. Butler & Lane objected to the admissibility of the agreement as evidence under the declaration. The court sustained the objection, excluding the agreement, and ordering a non-suit, and entered judgment accordingly. Baker excepted to this action of the court.
    The district court, on error, reversed the judgment of the common pleas. And to reverse this judgment of reversal is the object of the proceeding in this court.

      R. Stillwell, for plaintiff in error.

      Jacob Baker, in person.
   J. R. Swan, J.

We are of the opinion that the plaintiff was entitled to recover, under the count, the value of that portion of the crop and grain which the defendants were required to deliver: The value to be determined by the market price at the time of the breach of the contract.

Judgment of the district court affirmed.


text:
    John Burgoyne, Administrator of James C. Ludlow, deceased, and George C. Miller, v. The Ohio Life Insurance and Trust Company.
    At common law, the death of one of the joint makers of an obligation, extinguished all remedy at law against his estate.
    No action at law could be maintained against his personal representative, either jointly with the survivor or by a separate suit.
    In such case relief was afforded in chancery, but only upon condition that the remedy'against the survivor had proved fruitless.
    The principle of the common law was abrogated by the 90th section of our administration law, (Swan’s Rev. Stat. 378,) and the estate made liable in the same manner “ as if the contract had been joint and several.”
    The 38th section of the code of civil procedure allows all persons severally liable upon the same instrument, to be included in the same action, at the option of the plaintiff.
    This section permits the joinder of the survivor, and the personal representative of the deceased obligor, in the same action, whether the contract is in terms joint and several, or made so by the 90th section of the administration law; and authorizes a several judgment to- be rendered against each.
    This is a petition in error to reverse the judgment of the Court of Common Pleas of Hamilton county. Reserved in the District Court.

      Woodruff & Hopkins, and Ball, for plaintiffs in error.

      Worthington & Matthews, for defendant in error.
   Ranney, C. J.

The action in the court below, was brought upon a joint and several promissory note signed by Ludlow, Miller, and Dudley; the last of whom was not served with process. The demurrer filed by Ludlow’s administrator, was overruled, and a several judgment, in due form, entered against him to be levied of the goods, etc., of the intestate, and also a judgment against Miller on default. It is now insisted that these several parties could not be joined in the same action; that the obligation must have been treated by the creditor as either joint or several; in the one ease warranting only a single judgment against the survivors, and in the other, requiring a separate action against each of the parties or their personal representatives. By a settled rule of common law, the death of one of the joint makers of an obligation, extinguished all remedy at law against his estate. If the contract was joint, the action must be joint, and a joint judgment must follow. But as the same judgment could not be rendered against the survivor, and the personal representative of the deceased party, the consequence was, that no action at law could be maintained against the personal representative, either jointly with the survivor or by a separate suit. 1 Chitty’s Pl. 187 ; Brigden v. Park, 2 B. & C. 424; Ashby v. Ashby, 7 Id. 444; Bemott v. Field, 7 Cow. 58 ; Corner v. Shew, 3 M. & W. 350.

In such cases relief was afforded in chancery; but only when a necessity for such interposition was shown to exist; and, therefore, only upon the condition that the remedy at law against the survivor, had proved fruitless. 3 Denio 65 ; 2 J. C. Rep. 508 ; 1 Story’s Eq., sec. 162 ; 11 Paige Rep. 80 ; 10 Id. 101.

And inasmuch as no equities arise against a surety, and he is only legally bound upon the strict terms of the obligation into which he has entered, there is no small show of authority in the early eases for affirming, that no such interference can be invoked against the estate of a party thus situated. Hoar v. Contanien, 2 Bro. C. C. 27; Sumner v. Powell, 2 Mer. 30; Ex parte Kendall, 17 Ves. 519 ; Weaver v. Shryork, 6 Serg. and R. 262 ; 1 Story’s Eq., sec. 164.

In view of the difficulties which surrounded this subject at the common law, legislation became imperative; and it has been fully supplied. By the 90th section of the act to provide for the settlement of the estates of deceased persons, (Swan’s Rev. Stat. 378,) it is enacted, that “ when two or more persons shall be indebted in any joint contract, or upon a judgment founded upon any such contract, and either of them shall die, his estate shall be liable therefor, as if the contract had been joint and several, or as if the judgment had been against himself alone.” This statute effected an entire abrogation of the common law principie to -which allusion has been made ; and left the estate of the deceased joint debtor liable to every legal remedy, as fully as though the contract had been joint and several. Until the passage of the act to establish a code of civil procedure, it is very true, his personal representative and the survivor could not be sued in the same action. But by the 38th section of that act, it is provided, that “ persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may, all or any of them, be included in the same action, at the option of the plaintiff.” And the 371st section allows a several judgment to be given against any one of the defendants, as the nature of the case may require.

In the opinion of the court, these sections permit the joinder of the survivor or survivors, and the personal representative of the deceased obligor, in the same action, whether the contract is in terms joint and several, or made so by the 90th section of the administration law upon the death of a joint obligor ; and authorizes a several judgment to be rendered against each, according to the nature of their respective liabilities. We are aware that these provisions of our code, are almost literally copied from corresponding provisions in the code of New York; and that a different construction was placed upon them by a single judge of the supreme court of that State, in the case of Morehouse v. Ballou, 16 Barb. Rep. 289. With all proper respect for the opinions of each of the thirty-two judges of which that court is composed, we think it much safer to rely upon the obvious import of the language of our code, liberally interpreted with a view to the objects intended to be attained, than upon the multitude of conflicting decisions to be found in the reports of the supreme efeurt of New York. But if we were bound to fol low a New York decision, we need not go beyond the volume to which we have been referred, to find authority for our own position, and a direct contradiction to the case above cited. In the case of Parker v. Jackson, 16 Barb. 33, decided at a general term of the supreme court, by four judges, it was held that all the parties severally liable upon the same instrument, might be prosecuted in the same action, and several judgments be entered; that such a proceeding was to all intents, under the code, a several action, giving the full right to separate defenses ; and that such an action might be maintained against the surviving debtor, and the representatives of a deceased co-debtor, without alleging the insolvency of the survivor. On the whole, we can find no error in the proceedings of the court below, and its judgment should be affirmed.


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    The City of Zanesville v. Imri Richards, Auditor of Muskingum County.
    The 26th section of the act of March 11, 185$, to amend the act for the organization of cities and incorporated villages, (Swan’s Rev. Stat. 988,) requires the auditor of the county to place upon the duplicate of taxes the per cent-age regularly levied and certified by the council of a municipal corporation, on all the real and personal property returned on the grand levy in such corporation.
    The provisions of this section are in no way restricted by any provision contained in the special act creating such corporation, or by any implication arising from the 94th section of the act of 1852. (Swan’s Rev. Stat. 976.)
    All such special acts are repealed by the last named act; and all exemptions of any part of the property in such corporation otherwise subject to taxation, from contributing to the general revenue fund, are in conflict with the second section of the 12th article of the constitution.
    No tax, either for State, county, township, or corporation purposes, can be levied without express authority of law; and this section of the constitution is equally applicable to, and furnishes the governing principle for, all laws authorizing taxes to be levied for either purpose.
    It requires a uniform rate per cent, to be levied upon all property acccording to its true value in money within the limits of the local subdivision for which the revenue is collected, subject only to the exemptions specifically provided for in the section.
    A writ of mandamus will not lie to compel the county auditor to enter such tax upon the duplicate until the time arrives for making it up.
    This is an application on bebalf of the city of Zanesville, for a writ of peremptory mandamus, to compel the defendant, as auditor of Muskingum county, to enter upon the tax duplicate of the county, against all the lands within the corporate limits of said city, the per centage regularly levied for city purposes in the year 1855.
    The motion for the peremptory writ was filed in this court January 4th, 1856 ; and on the 9th day of the month an alternative writ of mandamus was issued by order of the court, commanding the defendant to place said taxes on the duplicate for the year 1856, or show cause by the 22d of January, why he refuses so to do.
    The defendant, failing to place the taxes upon the duplicate, as directed in the alternative writ, returned the same, with his answer, stating the grounds of his refusal to place said levy for city purposes on the tax duplicate for the year 1855, against all the lands within the city limits, and setting up the non-existence of the duplicate for the year 1856, and the consequent impossibility of his complying with the command of the writ, or any order in the premises.
    The questions presented by the alternative writ, and the answer thereto, are stated in the opinion of the court.

      A. P. Blocksom, for plaintiff.

      Jewett & O'Neill, for defendant.
   Ranney, C. J.

The city of Zanesville was organized under the provisions of a special act of incorporation, passed March 19, 1850 ; 48 O. L. 473. By the 6th section of this act, the city council was authorized to levy and collect taxes, to provide for the debts and to defray the current expenses of the city, with a limitation upon this power, expressed in these words: “ But the said city council shall levy no tax upon any land or lands within the limits of said city, except for road purposes, unless the same is laid off into town lots, and recorded as such, agreeably to the laws of the State, or into' out-lots not exceeding five acres each, and recorded as such, agreeably to the laws of the State of Ohio.”

At the proper time in the year 1855, the city council, elected under the provisions of the act of May 3, 1852, to provide for the organization of cities and incorporated villages, (Swan’s Rev. Stat. 955,) and in accordance with the provisions of the 26th section of the amendatory act of March 11, 1858, (Swan’s Rev. Stat. 988,) regularly certified to the county auditor the per centage by them levied for city purposes upon the real and personal property in the corporation, returned on the grand levy, in order that the same might be placed upon the duplicate, and collected as therein provided. But this officer, conceiving that the lands described ih the 6th section of the original charter, were not legally subject to anything but the road tax, refused to enter against them the other taxes levied for city purposes. Whether or not he was justified in this refusal, presents the main question in the case. It certainly cannot be doubted, that the section of the act of 1853, to which reference has been made, in terms requires the auditor to place upon the duplicate the per centage regularly levied and certified by the council of a municipal corporation, on all the real and personal property returned on the grand levy in such corporation. It alludes to no exceptions, and allows of none. But it is claimed that all parts of the laws in force at the time, upon this subject, should be referred to, and such a construction be given them as will harmonize their various provisions ; and that when this is done, the implication arising from the language of the 94th section of the act of 1852, is sufficient to justify the conclusion that the legislature intended the 6th section of the charter to continue in force, and the lands therein described to remain exempt from city taxes, until they were laid off in lots, and sold or leased by metes and bounds, or other description. We are of a different opinion. The 6th section of the 12th article of the constitution of 1851, required the general assembly to provide for the organization of cities and incorporated villages by general laws. In obedience to this requirement, the act of 1852 was passed ; and, in the'first section, repeals all previous acts for their organization or government. By the 109th section, those provisions of these special acts which related to the police regulations or local affairs of a particular corporation, were given a temporary continuance as by-laws or ordinances, until repealed by the proper authority thereof.

The 94th section certainly seems to imply that municipal corporations might exist, which were only authorized to tax lots when platted and recorded ; and seems intended to narrow the exemption by including those which were laid off and sold or leased, although not platted or recorded. With reference to the other provisions of the act, it is not an easy matter to give a proper construction and application to this section. Nor do we deem it necessary to make the- attempt. The very last construction that should be adopted would be one that makes it conflict with the constitution; and we are clear in the opinion, that if it means what is claimed for it, and intends to provide for the exemption of any part of the property in a municipal corporation otherwise subject to taxation, from contributing its proper proportion to the general revenue fund, it is in conflict with the second section of the 12th article of that instrument, and should be treated as a nullity. Before the adoption of the present constitution, the whole matter of taxation was committed to the discretion of the general assembly. It might be levied upon such property and in such proportion, as that body saw fit. The right to make exceptions and exemptions, was unquestionable. But this discretion no longer exists. The public burdens are made to rest upon the property of the State, and whenever money is to be raised by taxation, the positive injunction is, that “ laws shall be passed, taxing by a uniform rule, all moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise; and also all real and personal property, according to its true value in money.” Without express authority of law, no tax, either for State, county, township, or corporation purposes, can be levied ; and we see no reason to doubt, that this section of the constitution is equally applicable to, and furnishes the governing principle for, all laws authorizing taxes to be levied for either purpose. The great object of the provision was to secure equality and uniformity in the imposition of these public burdens. The convention was very well aware that much the largest part would be required to answer the purposes of these local subdivisions; and equally well, that it could only be levied as the general assembly should provide. In establishing this principle of justice and equality, they have necessarily made it the fundamental rule upon which all such laws must be based ; and its spirit and purpose can only be preserved by holding that it requires a uniform rate per cent, to be. levied upon all property, according to its true value in money, within the limits of the local subdivision for which the revenue is collected; subject only to the exemptions specially provided for in the section. In any view, therefore, of the construction to be placed upon the 94th section of the act of 1852, the exemption claimed for any part of the real estate within the limits of the city, cannot be sustained. If it is open to the construction contended for, either by implication or otherwise, it is repugnant, not only to other parts of the enactment, but also to the constitution of the State; and according to the holding in Exchange Bank v. Hines, 3 Ohio St. Rep. 1, may be treated as a nullity without affecting the legality of the general levy. To avoid all misapprehension, we should add, that while this opinion extends to all laws providing for taxation, within the meaning of that term as used in the constitution, it by no means follows that it necessarily covers the whole ground included within the limits of the taxing power. Whether the constitution itself has not provided for the exercise of this power under the name of “ assessments,” resting upon other principles and modes of exercise, and if so, what are the limits and proper application of this mode of imposing public burdens, are questions now before us in other cases, which will be disposed of upon their own merits.

For the reasons given, we are brought to the conclusion that the defendant should have entered against all the lands within the city, the taxes regularly levied for city purposes ; and there can be no doubt that the writ of mandamus is the proper remedy to enforce the performance of this public duty. But this writ only lies when the officer is legally empowered to perform the judgment of the court. In accordance with law, the duplicate for 1855 has gone out of the hands of the officer, and he has no further power over it; and the time has not yet arrived for making up that for 1856. To require these taxes to be entered upon the first, would be to exact an impossibility ; and to order them to be entered upon the last, when the proper time shall arrive, is to assume that he will then, without coercion, refuse to perform his legal duty. We are not authorized to make any such presumption; and as this writ was presented too late for the one purpose, and too soon for the other, we are of the opinion that it should be dismissed, and judgment be given for the defendant.

Judgment accordingly.


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    The City of Cincinnati v. Platt Evans.
    Municipal corporations are subject to the operation of the statute of limitations. in the same manner, and to the same extent as natural persons.
    Notorious arid uninterrupted possession for more than twenty-one years, by a private individual, under a claim of right, of land dedicated to a city for streets or public squares, will bar the claim of the city to its use. The case of Cincinnati v. The Presbyterian Church, 8 Ohio Bep. 298, approved # and affirmed. '
    In an action of trespass for an injury to a building occupied by the plaintiff as a store, resulting in an interruption of his business, he may recover, in addition to the damages done to the building, such further sum as will compensate him for the loss of its enjoyment while such interruption continued.
    For this purpose it is competent to prove the nature and extent of the business, the necessity of using the building for its prosecution, and the value of such use to him during the period of interruption.
    But in the absence of fraud, or malice, or other circumstances justifying the recovery of exemplary damages, the amount of profits which might have been realized by employing his personal services and capital, in the prosecution of his business in the injured building during such interruption, cannot be. recovered.
    In such case, the loss of profits does not furnish a proper rule for estimating the damages ; but the loss of the use of the property, and the value of such use to the injured party, is all that can be recovered.
    In error to the Superior Court of Cincinnati.
    In the year 1852, the city of Cincinnati, by order of the city council, removed the front of a storehouse belonging to Platt Evans, on Main street, in the city, and in which he was, at the time, carrying on the business of a merchant tailor. Evans brought an action against the city to recover for the injuries he sustained by the removal of the front of his building, and the consequent interruption to the business he was conducting in it.
    The case came to trial to a jury in the superior court of Cincinnati at special term in December, 1854. It appears from the bill of exceptions taken on the trial, that the plaintiff below produced evidence going to show that he erected the building on what was then supposed to be, and still is claimed to be, the original line of the street, and that the line was “ given by the city surveyorthat the houses both above and below him were then built to the same line on which he built, and that he had occupied the ground since the year 1822 ; that the front of the building was torn down by certain officers of the city in a summary manner, without any action or suit against him. In showing his damages, Evans introduced testimony tending to prove a loss of profits and permanent custom. Counsel for the city objected to the introduction of this evidence, but the court overruled the objection, and permitted the evidence to go to the jury. To this ruling, counsel excepted.
    On the part of the city, testimony was produced going to show that Evans had built over the original line of the street, as laid out by the original survey; that this line was established by well-known corners, landmarks, and secondary monuments; that it had been built by, as far back, as the year 1818; and that Evans’s building, at the time of the removal of the front thereof, was over the line of the street, and in the street, and that only so much thereof was removed as projected into and over the street. Also, testimony going to show that the city had repeatedly, during the period before the expiration of twenty-one years, after the year 1822, when Evans first built, asserted a right to the street, as claimed to have been originally laid out, and that others on the same square had, during that period, removed their buildings back to the said original line of the street, in accordance with this claim.
    The court instructed the jury as follows:
    “ It is contended on the part of the plaintiff, that whatever may have been the original line of the street, its apparent and reputed line was the one by which he built his house, in common with his neighbors ; that it was shown to him by the city surveyor, when he began to build; that his improvement was made in good faith and without fault on his part; had been acquiesced in by the city authorities, without disturbance or complaint, for more than twenty-one years, and that thereby he had a right to continue undisturbed, and the city lost all claim to his removal. Should you find these facts true, then the plaintiff had a right, as claimed by him, to remain undisturbed in his property, and the city authorities had no right to remove or destroy it in a summary manner.
    “We recognise the doctrine, that the corporate authorities of the city sustain the same relation to the property and interests of the city, that a private individual does to his own; and that except when expressly restrained by positive law, or by the nature of the trust conferred upon them, they may deal with the interests and property of the city as an individual may with his own. Among the duties devolved upon a municipal corporation, is that of regulating and taking care of its streets and highways ; and seeing that their boundaries are properly fixed and preserved. It would be strange to say, that whilst it is their duty to keep the streets open and free from nuisances, they have no power to determine where the lines of those streets are located. Rut it would be still more strange to say, that they can make and unmake, establish and destroy those lines at pleasure ; so that the authorities of to-morrow may obliterate and destroy lines which have been solemnly fixed by the authorities of to-day. The truth is, they have a right from necessity, as individuals, to establish the lines of their own possessions, and when once established, they are equally bound by them. Public policy and the quiet repose of the community require this much. It would be monstrous, for example, in a case like the present, after the city had caused the plaintiff to be torn down, according to what it claimed to be the line of the street, and allowed him to rebuild upon the new line, if another city council, if it should hereafter discover that he was a foot or six inches still over the true line as originally laid out, might again remove him, and so on, toties quoties.
      There must be a time whep these matters become fixed, and there must be an authority resident soméwhere in the city, by which they can be'settled and fixed. The best rule we can lay down as to time, is that established by the statute of limitations. Had this been a case of boundary between two individuals, twenty-one years uninterrupted and peaceable possession of the line claimed by the plaintiff, would have established his right to hold by it. The same rule is reasonable, and must apply, we think, with regard to the corporate authorities of the city in the present case, should you find the - facts as claimed by the plaintiff.

      “ If, therefore, the city authorities stood by and allowed the plaintiff to build his house upon a line, supposed at the time to be the true line of the street, and to remain there for twenty-one years, without interruption, or without taking any measures to assert the right of the city against the plaintiff, such acquiescence would amount to a recognition of his right, and be as binding in law as an establishment of the line by positive direction; and in such case the city authorities had no more right to cause the plaintiff’s .house or any part thereof, to be removed in a summary way, than they" would have had to widen the street, had it been too narrow, as originally laid out, to accommodate the increasing business of the city. The only way they could properly act, would be by causing the property to be condemned and paid for, as in cases of the appropriation of private property for public uses.”
    The court further instructed the jury, that if they found for the plaintiff, they might allow him damages for the loss of profits in his business, occasioned by its interruption by the acts of the defendant; but at the same time the jury were instructed to keep such damages separate from such other damages as might be assessed by them for the plaintiff.
    The verdict was for the plaintiff below, including seven hundred dollars for loss of profits in business.
    The defendant then moved for a new trial, on the ground that the court had misdirected the jury, and because the verdict was , against the law and the evidence. This motion was overruled, and judgment entered for the full amount of the verdict, including the damages for loss of profits. The superior court, in general term, on error, affirmed this judgment. To reverse the judgment of affirmance, is the object of the proceeding in this court.
    It is claimed on behalf of the plaintiff in error, that the court below, in its charge to the jury, instructed them that the statute of limitations would run against the city. This is assigned for error.
    It is claimed, also, that the court below erred in permitting Evans to recover for loss of profits. .

      McGroarty & Brown, and Mills & Hoadly, for plaintiff in error.

      Mills & Hoadly, made the following points :
    1. In such a case as this, the statute of limitations does not run against the city.
    It is elementary law that the statute does not run against a State. The State holds all its property in trust for the public— it cannot be guilty of laches — and as a consequence, is not barred by any general language in a statute, unless it is expressly named. Angelí on Limitations 36.
    Now, there is no reason that can be given to support the rule as to a State, that does not apply with equal force to a large city. The latter holds the street in trust for the public, and it would certainly be against policy (that is, public interest,) to allow the negligence, or the bad faith of officers thus to narrow those rights, over which they are placed as guardians. Municipal corporations, such as towns and counties, are representatives of the State, as to certain local matters. ■ They enjoy and exercise certain franchises.
    See Madison Bounty v. Bartlett, 1 Scam. 70, where it is held that a municipal corporation stood, in reference to the statute, on the same footing with the State ; that the reasons for this rule were equally applicable to both, and that no laches could be attributed to either.
    In the case of the State Banh of Illinois v. Brown et ál., 1 Scam. 106, th.e above case was approved, and, because the State Bank was owned by tbe State, it was held that the statute did not run against it.
    This case only follows the principle, decided in the case of Lee v. Norris, Cro. Eliz. 331. In that ease A had a lease from the Crown for ninety-nine years, and having been out of possession for more than twenty yeai’S, recovered notwithstanding, in ejectment. It was held that the possession of A was that of the king, against whom the statute did not run.
    If, then, the principle properly applies to crown lands held by a tenant, and to a bank owned by a State, why should it not as properly apply to a city corporation, in respect to a street, which it holds for the public as the representative of the State ?
    2. In such a case as this-^tort, unattended with malice — the direct and immediate consequences of the act, are alone to be taken into consideration — future contingent profits never. The ground of the distinction is, that while the former may properly he presumed to have been in the contemplation of the person committing the illegal act, the latter cannot be. See Sedgwick on Damages 112 ; Masterton v. Mayor of Brooklyn, 7 Hill 62 ; Borradaile v. Brunton,' 8 Taunton 535 ; Blanchard, v. -2%,- 21 Wend. 342; Briggs v. Bwight, 17 Wend. 71; Thureau v. Thornhill, 2 W. Black. 1078.
    By the same rule, in the case of Thureau v. Thornhill, 2 W. Blackstone 1078, damages for-a supposed loss of profits were denied. The case of Hadley r. Baxendale, decided in exchequer, February, 1854, 26 Eng. Com. Law and Eq. Rep. 398, reviews all the cases on this subject, and sustains the principle claimed.
    In cases of tort, where there is malice, evidence may be introduced of a loss of profits; not as a rule of damages, not because they may be presumed to have been within the contemplation of the parties, but as one of the elements for estimating vindictive or exemplary damages. Ingram v. Lawson, 6 Bing. N. C. 212 ;- Hunter v. Astor et al., 4 Moore 12, 16 Eng. Com. Law Rep. 357 ; Amiable Nancy, 3 Wheaton 560.
    In cases of collision, of illegal capture, of insurance, of marine trespasses, the -rule is well settled that the profits of a voyage cannot be recovered. La Armisted de Lues, 5 Wheaton 389 ; Schooner Lively, 1 Gall. 325.
    All the reasons for refusing profits in such cases are applicable in respect to the profits of a merchant tailor — profits that might have been made on transactions that never took place. Such profits would have to be ascertained by “ a calculation upon conjecture,” as Judge Story expresses it in 1 Gall. 325.

      Coffin & Mitchell, and Kebler & Force, for defendant in error.

      Coffin & Mitchell argued in substance :
    1. As to the statute of limitations.
    We do not think the naked question, whether or not the statute of limitations runs against the city, necessarily arises. The rule given by the court to the jury did not depend alone upon uninterrupted and adverse possession for twenty-one years, but upon positive affirmative acts of the defendant, establishing the boundary of the street, and the line between the plaintiff and defendant, and occupancy, by the plaintiff, according to that line.
    The whole charge must be taken together, and it is clear, from the record, that the case went to the jury, not on a right in the plaintiff arising from the bar of the statute, but upon the acts of the defendant establishing the line of the street, assented to by the plaintiff, and acquiesced in by all parties for a long time.
    The court did not err in its charge to the jury. Commonwealth v. Miltenlerger, 7 Watts 450, is a case in points
    Where adjoining claimants take possession up to a given line, and claim it for boundary for years, that is evidence that it is the true line, and where the true locality of the line is doubtful, such acts are regarded as furnishing evidence that the line so recognized is the true line, and neither of the parties is at liberty to abandon such line, although the original line should afterwards be ascertained to be at a different place. Gfillchrist v. Mo Glee, 9 Yerger 455.
    A mere acquiescence in a line as a dividing line between adjoining properties for fifteen years, is sufficient to establish the line as the true line of division. Brown v. Fdson, 23 Vermont 435.

      That a statute of limitations does run against a city corporate, is, we suppose, settled in this State. Cincinnati v. The Presbyterian Church, 8 Ohio Rep. 298. See also, Dudley v. The Trustees of Frankfort, 12 B. Mon. 610 ; Angel on Limitations, sec. 88 ; Armstrong v. Dulton, 4 Dev. 15 N. C. Rep. 568.
    2. As to the recovery for a loss of profits.
    We claim, on the part of Evans, to recover damages for a loss in his business, occasioned by its interruption by the trespass committed by the city.

    The use of the word “ profits ” cannot affect the question. It is damages for a loss in business; the direct and immediate consequence of the acts of the defendant; damages “ suffered by reason of the trespass.”
    The following eases fully sustain, in principle, the ruling of the court below on this point: White v. Mosely, 8 Pick. 356 ; Williamson v. Barrett, 13 Howard 101, 106 ; The Narragansett, 1 Blatchford O. C. R. 211; Lincoln v. S. S. B. B. Co., 23 Wend. 425 ; Phil., W f Balt. B. B. Co. v. Howard, 13 Howard 307. See also, Sedgwick on Damages, 79, 88, 89, 90, and cases there cited.
   Ranney, C. J.

But two questions have been pressed upon our attention in the argument of the plaintiff’s counsel — the one going to the defendant’s right of action, and the other to the measure of his damages. The action in the court below, was brought against the city to recover for injuries sustained in the removal of the front of a store building by the order of the council, and the consequent interruption to the business of the defendant, which he was prosecuting in it, until the injury could be repaired. On the part of city, it was claimed that the part of the building which they caused to be removed, was within one of the public streets of the city, and they attempted to justify its removal for that reason. This was met with proof on the part of the plaintiff below, tending to show that he had in good faith placed his building upon the apparent and reputed line of the street, as it was shown him by the city surveyor when he commenced its erection ; and that he had from that time, and during a period of more than twenty-one years, continued in the uninterrupted, exclusive, and adverse possession of the ground upon which it was located. The court instructed the jury that if they “ should find these facts true, then the plaintiff had a right as claimed by him, to remain undisturbed in his property, and the city authorities had no right to remove or destroy it in a summary manner.” It is very far from being clear, that the naked proposition argued by counsel, that municipal corporations are within the provisions of the limitation act, and that an adverse holding of streets or squares for the statutory period, will bar all remedy for their recovery, can be fairly said to arise from the charge given to the jury. This proposition is so connected with other material considerations, as, perhaps, to require us to give effect to them all, in passing upon the correctness of the instruction as a whole. Rut as we find no difficulty in fully approving the charge, in the absolute form in which it has been presented, we are content so to consider it. In treating this question, we need do no more than refer to the case of the Lessee of the City of Cincinnati v. The First Presbyterian Church, 8 Ohio Rep. 298, and make our own, the conclusions to which the court then arrived: that municipal corporations are subject to the operation of the statute of limitations, in the same manner, and to the same extent as natural persons; and, as a consequence, that notorious and uninterrupted possession by a private individual, under a claim of right of land dedicated to a city for streets or public squares, for more than twenty-one years, will bar the claim of the city to its use. This case was decided in 1838 ; was fully argued by eminent counsel, and carefully considered by the court. In following it now, we not only yield the respect due to a decision of the court of last resort, which has so long been supposed to have settled the law, but with a full approval of the principles upon which it is founded.

2. The remaining question is one of more difficulty; and after a careful examination, we find ourselves unable to concur in the views expressed by the learned judge who presided at the trial.

Against the objection of the counsel for the city, the plaintiff below was allowed to give evidence of a loss of profits and permanent custom by means of the acts of the defendantand the court, with a view to this evidence, instructed the jury, that “ they might allow the plaintiff damages for the loss of profits in Ms business, occasioned by its interruption by the acts of the defendant.” The jury having found such damages, which, under the instruction of the court, they have separately assessed, the question arises, whether this part of the judgment can be sustained.

There is, perhaps, no subject so important in the practical administration of-justice', about which so much doubt and uncertainty exists, or such confusion is to be found in the adjudged cases, as that which concerns the rules for assessing damages in actions for torts. Some principles, however, are well settled; and by carefully attending to the analogies they afford, we shall be much more likely to arrive at a correct conclusion, than by placing entire reliance upon particular adjudications. One of these principles, applicable to cases like the present, where neither fraud, malice, or other circumstance, justifying the recovery of exemplary damages, exists, is that which limits the recovery' to the natural and proximate' consequences of the illegal act. These, it is fairly presumed, the party committing the injury in good faith, or under a claim of right, may foresee and expect to compensate, should he be found in the wrong. But the principle necessarily excludes all those consequences of the act which are remote and indirect, and all investigation of losses which are purely speculative. It is very true, that the simple statement of this principle, falls very far short of determining what are the direct, natural, and proximate consequences of a particular act, or what are too remote, speculative, or contingent, to be taken into the account. In the language of Mr. Sedgwick, Even this is vague enough, for language confesses itself incompetent to depict the nicer shades of right and obligation, and all rules will be found valueless unless applied and expounded by tribunals as sagacious as they are learned.” Sedg. on Dam. 115. But this rule has been repeatedly and constantly applied in a class of cases, which it seems impossible to distinguish from this, and in each of which the claim for profits has been refused. The cases to which we allude, are those in which it has been uniformly held, that the damages to be recovered in marine trespasses, resulting in the illegal breaking up, or interference with the voyage, could not cove;;, the profits of the voyage. Debol v. Arnold, 3 Dall. 333 ; Anna Maria, 2 Wheat. 327 ; Amiable Nancy, 3 Wheat. 546 ; L'Amistad, 5 Wheat. 385 ; Smith v. Coudry, 1 How. 28 ; Boyd v. Brown, 17 Pick. 543. A necessary extension, perhaps, of the same principle, was allowed in the case of Williamson v. Barrett, 13 How. 101, where the owners of a steamboat, in a suit brought to recover for injuries sustained by a collision, in addition to the amount necessary to raise and repair the boat, were allowed to recover a further sum to compensate them for her use, during the time she was being refitted. In the case before us, there is no reason to suppose that the city officers knew they were acting illegally, or intended anything else than to discharge what they supposed a public duty. In this, however, they have been found mistaken. The plaintiff below has been injured, and ought to be compensated so far as he can be, and preserve the integrity of salutary rules. It must have been evident to those who deprived him of the use of a building in which he -was prosecuting his business, that the simple rentable value of the property during the period of interruption, would not compensate him for the interference. They could not fail to have contemplated a further injury, as the necessary consequence of their act, and for that further injury he is entitled to recover. But the supposed or contemplated profits of his business during the period, does not measure this injury. Such an issue cannot be proved without indulging in suppositions and conjectures which the law does not permit; and in so far as it involves his capital and personal services in the result, includes matters not within the scope of the action. Upon the whole, we are of opinion, that, in addition to the damages done to the building, he was entitled to recover such further sum as would compensate him for the loss of its enjoyment while the interruption continued; and that for the purpose of showing how much this Avas, it was competent to prove the nature and extent of his business, the necessity of using the building for its prosecution, and the value of sueh use to him. during the period of interruption.- But that in the absence of fraud, or malice, or other circumstances justifying the recovery of exemplary damages, the amount of profits which might have been realized by employing bis personal services and capital in the prosecution of his business in the injured building, during the period for which he was deprived of its use, cannot be recovered. That, in such case, the loss of profits does not furnish a proper criterion for estimating the damages; but the loss of the use of the property, and the value of such use to,the injured party, is all that can be recovered.

Judgment reversed as to damages for loss of profits, and affirmed as to the balance.

Bartley, J., dissented, being in favor of reversing the entire judgment.


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    John Craig v. The State of Ohio.

    In impeaching the credit of a witness, the inquiry into his general reputation or character, should be restricted to his reputation for truth and veracity.

    In making this inquiry, any form of words may be adopted, by which to ascertain whether the impeaching witness has sufficient knowledge of the public estimation for truth, in which the witness proposed to be impeached is held.
    This is a writ of error to the Court of Common Pleas of Wayne county.
    The plaintiff in error was cdnvicted of arson at the September term, A. D. 1853, of that court, and sentenced to imprisonment in the penitentiary.
    It appears from a bill of exceptions taken on the trial, that one Jesse Taylor, an accomplice of the plaintiff in error, was examined as a witness for the State.
    A witness was then examined on behalf of the prisoner, to impeach Taylor, and being inquired of as to Taylor’s character for truth and veracity, testified that it was bad, and that he would not believe him under oath.
    The prisoner’s counsel then proposed to ask the impeaching witness the following questions:
    1; What is generally said of the prosecuting witness, Jesse Taylor, by those among whom he dwells, as to imputations for general turpitude of character ?
    2. Do you know the general reputation of the prosecuting witness, Taylor, among his neighbors, as to imputations of a criminal nature, and what is that reputation ?
    3. Do you know the general character of the prosecuting witness, Jesse Taylor, among his neighbors and those who best know him; and if so, what is his general character ?
    The court refused to permit these questions to be answered.
    And this refusal is assigned for error.

      Jeffries, for the plaintiff in error.

      McCook, Attorney General, for the State :
    There is no error in this refusal. The witness sought to be impeached, is a criminal by his own admission, and testifies against his associate in the very crime on trial. The necessity of the prosecution alone, places him on the witness stand, instead of in the dock. Of course his reputation for honesty and morality is bad, or at least ought to be. How, then, could proof of his turpitude add to his guilt already acknowledged ? But the testimony was incompetent, by the well settled principle which excludes all evidence as to the character of the witness, except for truth and veracity. It has never been departed from in Ohio, although the Supreme Court seem to intimate that it is here an open question. Bueldin v. The State, 20 Ohio Rep. 25. A better illustration of the impropriety of changing the rule could not be found than the case at bar affords.

       This case was decided at the December term, 1854.

   J. R. Swan, J.

This case presents for decision the question, whether in impeaching the credit of a witness, the inquiry into the general reputation or character of the witness should be restricted to his reputation for truth and veracity, or may be made in general terms, involving his entire moral character and estimation in society. In most of the northern States the inquiry is limited to reputation for truth; in some of the southern States, full latitude is given to ascertain the standing of a witness and his inherent moral character. Very cogent reasons have been given for the holding on each side. In Bucklin v. The State, 20 Ohio Rep. 25, this question was raised but not decided.

The rule has generally prevailed in this State to confine the inquiry to general reputation for truth; and, without repeating the reasons which have induced the adoption of this rule, and which have been so ably stated by courts, we simply announce that our deliberations have induced us to adhere to that general practice.

We do not intend to prescribe the exact form of words in which a witness should be interrogated, for the purpose of impeaching another witness; but, that we may be clearly understood upon this subject, it is proper to give here what we believe to be in general the proper form of the questions. They are these :

Have you the means of knowing the general reputation of A B, the witness, for truth ? Or, this preliminary question may be thus: Are you acquainted with A B, and do you know what is his general reputation for truth ? So, any other form of words may be adopted, by which to ascertain whether the witness has sufficient knowledge of the public estimation for truth, in which the witness proposed to be impeached is held.

Judgment affirmed.

       This decision was made by Thurman, Chief Justice, and Ranney, Swan and Kennon, Justices.