author: Burket, J.

text:
    Cockley v. Brucker

      Copartnership — Entirety of contract — Breach of contract — Rights and remedies — Merger,
    1. C. and- B. entered into a written agreement of copartner ship for the term of five years, C. agreeing to furnish the úse of a ' mill owned by him, and the necessary capital to conduct the business which was to be for the joint profit of both, and B. agreeing to devote his entire time, ability and energy to the successful prosecution of the business, and to render an account once each month, Held: that such a contract is entire and not separable.
    2. Upon breach of such contract by either party, only one action lies for such breach, even though there be. two or more acts amounting to a breach of the contract.
    3. A breach of tne contract on part of C., followed by an action by B. to have the partnership declared dissolved, a receiver appointed, assets converted into money, debts paid and balance divided between the parties, all of which is done by the order and judgment of the court, is a full and final determination of the rights and remedies of the parties under the contract, and B. cannot thereafter maintain an action against C. for damages for terminating the partnership before the expiration of the term of five years.
    4. In such case all the rights and remedies of B. against C. for breach of the contract are merged into the judgment in the first action.
    (Decided February 25, 1896.)
    Error to the Circuit Court of Richland county.
    The said parties entered into the following written contract, at the time of the date thereof.
    “Shelby, Ohio, March 2d, 1886.
    Memorandum of agreement entered into this -day by and between David L. Coekley of the first part, and Francis Brucker of the second part, witnesseth:
    i That whereas the said David L. Coekley is now the owner of a stave and heading factory, located at Agosta, Ohio, he hereby agrees to furnish the use of the same and all of the capital necessary to successfully carry on said stave and heading business for the joint profits of both parties, and whenever the profits of said business shall be sufficient to remunerate the said Cockley for his entire investment in said business, then a deed for' the undivided one-half interest shall be made by him to the said Brucker. Said Francis Brucker of the second party agrees to devote his entire time, ability and energy to the successful prosecution of the business, and well and faithfully render an account of the same at least once per month to the said D. L. Cockley.
    It is understood that said parties have this day entered into a copartnership to run for the term of five years under the name and style of Cockley & Brucker for the purpose of running said stave and heading factory at Agosta, Ohio.
    Said Brucker does not have the authority or power to sign the firm name to any negotiable note or paper of any kind.
    David L. Cockley,
    Francis Brucker.”
    The parties ran the stave factory under this contract from the first of April, 1886 to the sixth of January, 1887, when they disagreed, and Mr. Cockley, defendant below, drove Mr. Brucker, plaintiff below, out of the factory, and excluded him therefrom. Thereupon plaintiff below commenced an action in Marion county against his partner upon his contract, setting out a copy thereof in his petition, and in connection with other averments, alleged that his partner had taken exclusive possession and custody of all the partnership property and books, and had'excluded him from access to the same; and' prayed that the partnership be adjudged dissolved, a receiver be appointed for the property and good will of the partnership, that the same be sold and claims collected, an account of the business betaken, the debts paid and the balance divided according to rights of the parties, and for all proper relief.
    Upon a hearing, the praj^er of the petition was granted by the court, a receiver was appointed, the property sold, and the business wound up under the orders and directions of the court.
    ■ Afterward the plaintiff below commenced this action against the defendant below, in the court of common pleas of Richland county on the same contract, alleging the same breach of the cod tract, but with more particularity, and with the addition of some aggravations, seeking in this last action to recover ten thousand dollars damages because the defendant below so conducted himself as to cause a dissolution of the partnership before the expiration of the five years.
    An answer was filed to the second amended petition, admitting the copy of the contract attached to the petition to be a true copy, denying that the defendant violated the contract, averring that the plaintiff below wilfully violated the same, that a receiver was appointed by the court of common pleas of Marion county who wound up said business, and further averred that in said action in Marion county between the same parties, the property rights in every way growing out of said partnership, were fully determined and adjudicated by said court. The reply is substantially a general denial of the answer.
    On the trial of the case in the common pleas of Richland county, the counsel for the defendant below introduced in evidence the record of the case in Marion county, and the court directed a verdict for the defendant.
    The circuit court reversed the judgment, and remanded the case for a new trial. . On petition in error this court affirmed the judgment of the circuit court, one judge dissenting. On a new trial in the common pleas, the plaintiff below recovered a judgment against the defendant for $6,960.00. The circuit court affirmed the judgment. On petition in error in this court, the case was orally argued, and upon looking into the record, sufficient errors appeared to warrant a reversal of the judgment ; and then looking back into the record when the case was here before, some doubts arose as to the correctness of the judgment of affirmance by the court at that time. Thereupon a rehearing was requested by one of the members of this court who had concurred in the affirmance, which rehearing was granted by the court, and the attorneys notified. They prepared additional briefs, and the case was again submitted aud considered by the whole court upon the briefs and both records.

      Skiles db Skiles, for plaintiff in error.
    We contend that all legal questions involved in this controversy are settled by the court of last resort in Ohio, and these questions in this case should be decided and settled by the decisions of our own state and not by any rule of law that may chance to be laid down by any decisions outside of our own state so long as the questions are settled in Ohio. Cincinnati v. Evans, 5 Ohio St., 594; Rhodes v. Baird, 16 Ohio St., 573; Newark Coal Co. v. Upson, 40 Ohio St., 17; Burkhart v. Burkhart, 42 Ohio St., 474; Powers v. Railway Co., 33 Ohio St., 435; 33 Pa. St., 426; 16 Ohio St., 573; 18 Ohio St., 169; 30 Ohio St., 604, 624; Railroad Co. v. Gardner, 45 Ohio St., 309; 4 Ohio St., 595; 5 Ohio St., 573. On the question of damages we cite a case on the rule applied by the United States Supreme Court which bears out the same doctrine as our own state, and we think this decision is conclusive. The United States decision, The Cincinnati Siemens’ Lungren Gas Illuminating Co. v. The Western Siemens’ Lungren Co., found in the advance sheets of the United States Supreme Court of April 1, 1894. The ground upon which the general rule of excluding profits for estimating damages is — ■
    (1.) That in the greater number of cases such expected profits are to be dependent upon numerous uncertain and changing contingencies to constitute a definite and trustworthy measure of actual damages.
    (2.) Because such loss of profits is ordinarily remote, and not as a matter of course the direct and immediate result of the non-fulfillment of the contract.
    (3.) And because most frequently the engaging to pay such loss of profits, in case of default in a performance, is not a part of the contract itself, nor can it be implied from its nature and terms.
    A litigant, proceeding as Mr. Brucker did, was bound, under the law, to make good his entire cause of action wherein it arose as- the facts in this case indicate, and as the record shows by reason of a claimed violation of the contract on the part of Mr. Coekley. Whatever was claimed at the time of this pretended violation of the contract and at the time they filed this suit in Marion county court, they were bound, under the law, to cover every phase of the case, and we say they did. But if they did not, under the law, as .they contend, i.t was their own fault, their own negligence, and they certainly cannot be permitted to visit their own fault, negligence or carelessness upon our' client. 20 Ohio St., p. 322; 13 Ohio St., p. 283, and authorities cited supra; 28 Ohio St., 596; 27 Ohio St., 233.
    The defendant in error claims that a suit in tort cannot be joined with a suit on contract. We ask the court’s attention to the 8th Ohio St., 515, and many other decisions in support of the same doctrine.
    If there is any proposition of law so thoroughly established as to be beyond doubt, it is that a judgment, decree or even a dismissal upon toe pleadings in a case is certainly a final determination and-constitutes a bar to any further litigation growing out of the same subject matter between the same parties. Foote v. Gibbs, 1 Gray, 412; Durant v. Fssex Co., 7 Wallace, 107; 5 Allen, 377; 1 Gray, 301; 99 Mass., 39; 4 Johns. Ch., 140; 29 Pa. St,, 78; 6 Ohio, 406; 7 Ohio, 529.
    The gentlemen cite a number of authorities claiming a different construction on this question, but they seem to lose sight of the fact that there was a time in the past wherein courts of equity were distinguished from courts of law, and courts of equity had no jurisdiction in a case at law. Nor could they consider or pass upon a legal defense or a counter claim not strictly equitable in its character. But such is not now the law. Under theCode and under the law, courts of equity have a right to go with and determine the legal rights of the parties as well as the equitable rights. 8 Ohio, 44; 4 Johns. Ch., 559; 5 Johns. Ch., 193; 13 Ohio St., 288; 6 Ohio St., 216; Roby v. Rainsberger, 27 Ohio St., 677.

      So,a report of a referee, master, etc., when confirmed by the court and rendered of record is conclusive, and affidavits or testimony attempting to show anything to the contrary are wholly inadmissible. Citing Leavitt v. People, 20th Alb. L. J., 413; Carver v. U. S., 111th U. S., 609; 28th Ga., 289; 58 Missouri, 327; 34 Md., 38; 37 Barb., 251; 72 N. Y., 300; 26 Wis., 152; 13 Cal., 620 ; 81 Ill., 278.
    A judgment by confession or default is conclusive evidence between the parties of all the facts alleged in the complaint necessary to make out the cause of action, and of all the legal principles necessarily applied in order to entitle the plaintiff to recover on facts alleged, and is binding as res judicata. 7th N. Y., 352; 48 N. Y., 676; 79 N. Y., 624; 86 N. Y., 448 ; 30 Minn., 424; 57 Cal., 558.
    Again, it is not the judgment in and of itself that creates the estoppel; it is not the recovery that creates the res judicata, but the matter alleged by the court on which the recover¶proceeds that creates the estoppel. No matter whether the recovery is by consent, default, confession or after a contest before a court and jury or court alone, or if upon demurrer, a judgment is rendered by the court upon a cause of action, the matter alleged that judgment is a judicial act on the merits between competent parties and merges that cause of action. 16 Cal., 389; 18 Md., 328; 17 Mass., 237; 48 Cal., 366; 68 N. Y., 676; Herman on Res Judicata, page 75, section 74.
    Whenever it appears that the same question had been directly decided by a court of competent jurisdiction between the same parties, it should be deemed res judicata. There is no need that both courts should have been courts of law or both courts of equity, or that all of the parties should have been the same in both suits. 99 U. S., 35 ; 70 Ala., 397 ; 77 Mo., 471 ; 54 N. Y., 644.

      Kerr do Brucker, for defendant in error.
    But in the case at bar the very purpose of the contract, the mutual obligations of the parties, was to continue for five years a concern for the sole object of making profits. The defendant was expressly obligated to do his part toward continuing the business for five years. We are not left to speculate about this rule — many cases with parallel facts have defined and applied it, some of which we cite. 101 N. Y., 205; 107 N. Y., 669; Treat v. Hiles, 50 N. W., 896; Amer. and Eng. Ency. of Law, vol. 1, pages 150, 151; Pomeroy’s Rights and Remedies, section 690; 52 N. W., 609; 17 Wend., 136; 97 N. Y., 507; 26 Am. St., 498; 128 N. Y., 455; 36 Ohio St., 261; 30 Ohio St., 624; 29 Am. St., 728; 39 Pa. St., 447.
    But if we understand the rule the court will not review this record upon the evidence, either as to its weight or the amount of damages. The circuit court has performed that duty and found that we were entitled to recover and that the verdict was not excessive.
    There are several reasons why this case ought not to be heard on the question as to what was litigated at one time in the court of common pleas of Marion county.
    1st. We cite the decision of this -court in the original case, a decision in which every judge but Judge Minshall concurred, and this upon a full and mature consideration after full argument. With the greatest respect Ue submit that under the. peculiar circumstances of this case, it would be an injustice to the defendant in error to reverse his judgment upon the question before presented and decided in his favor by an almost unanimous court.
    Two circuit courts passed upon this case, once upon the single question and fully argued, and once upon this record, and both decisions were that the defense of res adjudicata was not well taken.
    Nowhere in our brief in this cause did we argue this question because we supposed when an almost unanimous court, when it was composed of six members, decided it. Itabsolutely settled this question. Some of the reasons why this question in the record as it now stands cannot now be made we therefore propose to give now.

      Fwst — It seems clear to us that the court in granting a rehearing on this question must have overlooked one of its own decisions where it is expressly held that a rehearing in a case after the term in which it is decided- will not be granted even though requested by one of the judges. Horace Sabin Adm. v. Corcoran, 33 Law Bull., 36.

      Second — The question of res .adjudicata, is not before the court on the record in this cause. As the record now is there is not a particle of evidence that anything was ever litigated between these parties. Hicks v. Pearson, 19 Ohio 446; Busby v. Finn, 1 Ohio St., 312; Wells v. Warrich, 1 Ohio St., 387; Coach v. Irwin, 7 Ohio St., 23; Hallman v. Jacks, 11 Ohio St., 692 ; Fahey v. Esterly, 44 Am., State Rep.; Goldsmith v. State, 3 Ohio St., 208.

      Third — "We contend that the answer of plaintiff in error does not present the defense of res adjudicata. This case was tried on the amended answer to the second amended petition. That the receiver suit did not involve the question of damages as a matter of fact. Bates’ Pleading, vol. 2, p. 912 ; 2 Oregon, 269; Swans’ Pleading, 521; 37 Ohio St., 344; 53 Cal., 135; Herman on Estoppel, vol. 2, p. 1433; Lockwood v. Wileman, 13 Ohio St., 451; Spence v. Ins. Co., 40 Ohio St., 520; Nash, vol. 1, p. 102.
    Where plaintiff has two causes of action arising out of the same transaction, he has his election to bring either' separate actions in each or unite them. Bruce v. Kelly, 5 Hunter, 229; Bates, vol. 1, p. 199; 56 N. Y., 12, 85 N. Y., 345; Porter v. Wagner, 36 Ohio St., 475; 40 Ohio St., 521; Fahey v. Esterly Machine Co., 44 Am. St., Rep., 556; McDowell v. Langdon, 3 Gray, 513; Welmington R. R. Co. v. Ashbrook, 146, U. S. 279; Last Chance Mining Co. v. Tyler, 157 U. S., 683; Roberts v. Railroad Co., 158 U. S., 1; Simons v. Hart, 14 Johns., 63; 96 Am. Dec., 728; Barth v. Burt, 43 Barb., 628; United States Digest, first series, vol. 8, p. 123; Singer v. Heller, 40 Wis., 544; Bagley v. Smith, 10 N. Y., 489; Foye v. Patch, 132 Mass., 106; Stone v. St. Louis Co., 155 Mass.; Hixon v. Ogg, 53 Ohio St., 361; Railroad Co. v. Hoffman, 46 Ohio St., 643; The Lessees v. Trinnan, 10 Ohio St., 45; Cramer v. Moore, 36 Ohio St., 347; R. Company v. Stout, 46 N. W., 319. A matter is not considered Res Adyudicata unless there is a concurrence of the four conditions following, viz :

      First — Identity in the thing sued for (which is lacking in the case at bar.)

      Second — Identity of the cause of action (which is not the same here.)

      Third — Identity of person and parties to action.

      Fourth — Identity of the quality in the persons for or against whom the claim is made. (Wait’s Action and Defenses, vol. 6, 770.).
    The burden of proof on the question of estoppel is on the defendant (see Herman on Estoppel, page 481) but when the ease was before the Supreme Court the first time, we offered to show by witness, that no adjudication of damages was had but the court ruled out this testimony.
    Where the record is silent as to what is determined parol proof is admissible. 46 Ohio St., 643; 44 Amer. St., 556; 155 Mass., 267. We did not attempt to introduce oral testimony this time, because we relied on the former judgment of the Supreme Court.
   Burket, J.

The attention of the court is called to the rule of this court announced in Sabin v. Corcoran, 52 Ohio St., 690, which reads as follows: “Application for a re-hearing will not be entertained when made at a term subsequent to that at which the judgment is rendered, notwithstanding such re-hearing is requested by one of the judges. ’ ’

The case in which that rule was announced, was disposed of by the affirmance of a judgment of both the common pleas and circuit courts, and thereby the case was finally disposed of, and it could not return to this court for any purpose; while in the case here under consideration, the circuit court reversed the judgment of the common pleas, and this court affirmed the circuit court, and remanded the case to the common pleas for a new trial. Upon such new trial in the common pleas, a judgment -was rendered for the plaintiff below, which was affirmed by the circuit court. The case then again came here on petition in error by the defendant below to reverse the judgments of both the circuit and common pleas courts. While the ease comes here this last time on a new record, the old record and briefs still remain on file in this court, and the case when it so returns is still regarded as the same case that was here before. That this is so appears from section 440, Revised Statutes, which provides among other things that, “when a case is disposed of, and again comes into court, it shall be taken up as if it had its original place on the docket. ” So that this court construes the rule referred to as applying only to cases which are finally disposed of, and do not return to this court for review. Under this construction of the rule the rehearing was properly granted. Acheson v. Miller, 2 Ohio St., 203.

The action is founded upon the breach of the contract between the parties. That the defendant below was guilty of acts amounting to a breach of the contract, was in effect found by the court of common pleas of Marion county, in the action between the same parties upon the same contract, and for the purpose of this case, might as well be conceded. Such being' the case, the question arises as to the rights of the parties.’ Their rights and remedies must depend upon the nature, terms and effect of their contract, and what they have done under it.

The parties by the terms of their contract, entered into a copartnership for the term of five years, for the purpose of running' a stave and heading factory at Agosta, Ohio, for the joint profit of both parties. The defendant below on his part agreed to furnish the use of the factory at Agosta, owned by him, and all the capital necessary to carry on the business. The plaintiff below on his part agreed to devote his entire time, ability and energy to the successful prosecution of the business, and to render an account once each month When the profits should be sufficient to remunerate the defendant below for his entire investment, then he was to deed to plaintiff below one undivided half interest of what should be left after taking out defendant’s investment.

The consideration promised on defendant’s part, was the use of the factory and necessary capital; on the plaintiff’s part his entire time, ability and energy.

The contract fails to state how much of the plaintiff’s time, ability and energy, should pay for the use of the mill alone, or how much thereof for the use of the necessary capital alone. All of his time, ability and energy, was to pay for the use of both mill and capital. The use of both mill and capital, is the consideration for the time, ability and energy, combined. The contract is, therefore entire and not separable. The authorities are to the effect that when the consideration is single and entire, that the contract is entire, even though the subject of the contract consists of two or more distinct and independent items. Miner v. Bradley, 22 Pick., 457; 2 Parsons’ on Contracts, 517; Fish v. Folley, 6 Hill, 54; Shaffer v. Lee, 8 Barb., 412.

In this case the consideration on both sides is entire, and it is therefore clear that the contract is entire and indivisible.

For the breach of such a contract, only one action can be maintained. As the contract is single and entire, so the cause of action for its breach, is single and entire, even though there be different acts, each of which constitutes a breach of the contract. The breach of the contract may be more aggravated, but it cannot be more ample, by many acts in violation thereof, than by one act. One act sufficient to cause a breach of the contract, puts an end thereto, and many acts can not do more than end the contract. For putting an end to the contract by one or many breaches thereof, one action lies, and upon a final judgment being' rendered in such action, all the damages and causes of action arising from such breach of the contract, become merged into such judgment.

If from the nature of the contract, and the breach thereof, the party injurod has sustained damages, and has also other property rights under the contract, he must include his whole claim in one action, and if he omits a part, and recovers judgment for a part only, he cannot sustain another action for the omitted part, because the whole injury caused by the breach of the contract, is merged in the judgment recovered on the part sued for. A single cause of oaction cannot be split up into two or more causes of action; neither can two or more actions be sustained against the same party, on a single cause of action.

Stein v. Steamboat, 17 Ohio St., 471, and cases there cited; Erwin v. Lynn,, 16 Ohio St., 539, and cases there cited; Ewing v. McNairy, 20 Ohio St., 315; James v. Allen County, 44 Ohio St., 226.

From these considerations and authorities, it clearly appears that the judgment recovered by the plaintiff below in Marion county, in the action brought on this contract, exhausted all his rights and remedies for a breach of the contract, that the same are merged in said judgment, and that he has no further right of action by reason of such breach. It follows that the judgment of the court of common pleas in favor of defendant below, is right, and should be affirmed, and that all the other judgments in the case should be reversed, set aside and held for naught.

Judgment accordingly.


source: Caselaw Access Project

author: Williams, C. J.

license: Public Domain

text:
    Hull et al. v. Bell Bros. & Co.

      Practice — Right of Appeal — Determined by nature of action — Section 6226 Revised Statutes — Action to enforce specific performance, is not an action to recover specific property — Section 5130 Re-' vised Statutes — Different judgment against several defendants, either has right to appeal — Judgment of appellate court super-cedes judgment appealed from — Errors committed in lower court immaterial.

    1. The right of appeal to the circuit court from a final judgment of the court of common pleas, under the provisions of section 5226, of the Revised Statutes, is determined by the nature of the action, and not by the form of the judgment rendered.
    2. An action to enforce the specific performance of a contract for the conveyance of land and the payment of money, is not an action for the recovery of specific property, nor for money only, within the purview of section 5130, of the Revised Statutes, and neither f>arty is entitled to demand a trial thereof by jury.
    3. When such action is brought against several defendants-who entered into the contract, and judgment is rendered against some of them for the conveyance of the land, and against the others for a specific sum of money, either party has the right of appeal.
    4. While an appellant may prosecute error to the judgment appealed from, before the determination of his appeal, the proceeding will avail nothing if the appeal be sustained, for then the cause stands for a new trial of the issues of fact, the judgment is superceded by that of the appellate court, and the errors occurring in the court below, if any were committed, become immaterial; nor can the affirmance of the judgment before the trial of the appeal give it any additional or different effect.
    (Decided February 25, 1896.)
    Error to the Circuit Court of Hancock county.
    Action was brought in the court of common pleas of Hancock county by Bell Bros. & Co., a co-partnership, against P. Roettinger and Thomas McConica, trustees of the Bigelow Syndicate, and E. T. Dunn, J. Ramsey, Jr., and J. G. Hull, for the specific performance of the following contract: “This memorandum <of agreement between Bell Bros. & Co., of East Liverpool. O., of the first part, and P. Roettinger and Thomas McConica, trustees of the Bigelow Syndicate, owning the F. F. Bigelow land, consisting of one hundred and one-half acres at Findlay, O., and E. T. Dunn, trustee; J. Ramsey, Jr., trustee; J. G. Hull, trustee, of the second part, hereby enter into the following agreement, to-wit:
    “The said parties of the first part agree to erect upon said land on the east side of the T. C. & S. R. R., upon the tract heretofore described, a six-kiln pottery works for the manufacture of china pottery and similar ware, which works shall be commenced and pushed to completion in a reasonable time from this date.
    “The buildings of said works shall be substantially built of brick, with metal or slate roof; shall be three stories high at the ends; shall have six kilns, and a capaci by to employ two hundred hands.
    “In consideration of the foregoing the parties of the second part agree to convey to said parties of the first part, by good and sufficient deed of general warranty, the following described premises, to-wit:
    ‘ ‘Beginning at the southeast corner of block fifteen at intersection of Harriet and Massillon streets, thence four hundred and forty feet north along Massillon street; thence four hundred and fifty feet westward; thence four hundred and forty feet .southward to Harriet street; thence along Harriet street east four hundred and fifty (450) feet to beginning, containing four and one-half acres more or less; and three lots on a plat of said land made by Hosea Paul, Esq., said lots to be selected by said parties of the first part, said eon- " veyance to be made as soon as said buildings are completed.
    “Said parties of the second part further agree to pay to said parties of the first part the sum of fifteen thousand dollars ($15,000.00,) to-wit: five thousand dollars when the buildings aforesaid are completed; five thousand dollars thirty days after said works are in operation and employing one hundred persons or more; the balance, to-wit: five thousand dollars after said works are fully completed and employing two hundred persons.
    “Said parties of the second part further agree to macadamize one street from said works to Main street.
    “The second parties further agree to sink a gas well on said tract of land to be transferred to said party of the first part, and said first party shall have from said well a sufficient amount of natural gas to supply their works, whatever the extent may be on said premises.
    “The party of the second part, or assigns, shall have the use of any surplus gas. Should there not be sufficient gas produced from said well to . supply said works, then said parties of the second part agree to sink another well or wells, so that first party shall be supplied with natural gas for their works; and should there be connections made with other wells to be sunk in the north, then this well shall be connected with the general mains.'
    “In case it becomes necessary to supply the works with gas from high pressure mains, the charges for the same shall not exceed two hundred dollars per year for five years. Said works shall be supplied with natural gas so long as gas eon» tinues to flow in the high pressure mains in the Findlay district.
    “Parties of the second part shall have access to the well at all times for examinations of it and tests of capacity. The pipings and connections from the well shall be furnished and the well kept in good condition by the parties of the first part.
    “The well and roadway shall be commenced as soon as work is begun on the foundations of the buildings.
    “Executed this 21st day of April, 1888.”
    Signed “Phillip Roettinger, Trustee.
    T. H. McConica, Trustee.
    E. T. Dunn, Trustee.
    J. Ramsey, Jr., Trustee.
    J. G. Hull, Trustee.
    Edwin F. Bell,

      W. M. Bell,
    Bell Bros. & Co.”
    The petition alleges that: “On and before the 1st day of October, 1890, the plaintiff had duly kept, observed and performed all of the terms and provisions of said contract on their part to be performed. That the plaintiffs duly selected and designated the following described three lots in the plat made by Horace Paul as the three lots to be conveyed to them under said contract, to-wit: Lots four (4), five (5) and six (6) of Block “L,” in Bigelow addition to Findlay, O., and that the plaintiffs duly advise the defendants of the lots so selected. But the plaintiffs say that the said defendants have failed and neglected to perform their said contract on their part, in that they have failed and neglected and refused to macadamize one street from plaintiffs’ said works to-Main street.
    “That they have further failed to so perform their said contract in that they have failed, neglected and refused to deed and convey to these plaintiffs the said three lots so selected by plaintiffs, and in said contract so agreed to be conveyed.
    “Further and finally, the said defendants have failed to perform their said agreement in that they have failed, neglected and refused to pay to these plaintiffs, five thousand dollars, which by the terms of said contract they agreed to pay “after said works are fully completed and employing two hundred persons,” which last named event occurred on the 1st day of October, 1890, aforesaid.
    “Wherefore the plaintiffs pray that the said defendants be decreed and required .specifically to perform said contract, convey said lots, or in default thereof that the decree herein stand as a conveyance thereof, macadamize said street and pay said sum of five thousand dollars, and that in default thereof by the day named by the decree of this court, then that the plaintiffs have judgment for the amount of their damages to be ascertained by this court for the breach by the defendants of said contract in regard to the improvement of said street, to be enforced and collected in the manner provided for collecting judgments at law, and that the plaintiffs may have such other or further judgment or relief as equity and the nature of the case may demand.”
    An answer was filed by the defendants Roettinger and McConica, which, after denyingthat the plaintiffs performed the conditions of the contract on their part, alleges in substance, (1) that the stipulations of the contract in relation to the macadamizing of the street are void for uncertainty, and moreover, were waived and discharged for a valuable consideration paid by the answering defendants; (2) that the contract was entered into by them in their representative character as trustees of the Bigelow Syndicate, and not as individuals, which was well known to the plaintiffs at the time, and they are not, therefore, personally liable; and (3) that as to the obligation for the payment of the money as provided by the contract, they were sureties, merely, for their co-defendants.
    The answer of Hull and Dunn denies the performance by the plaintiffs of the conditions of' the contract on their part to be performed, stating wherein they failed to perform, and contains a counterclaim for damages for the breach.
    The allegations of new matter in the answers were controverted by reply, and the issues were tried by the court, a demand by the defendants for a trial by jury having been refused. The trial resulted in the following judgment:
    “And thereupon came the parties, and this cause was further heard and considered by the,court upon the pleadings and the testimony, and being fully advised in the premises, it is ordered, adjudged and decreed that within ten days from and after the entry of this decree, the defendants, Philip Roettinger and Thomas H. McConica, as trustees of the Bigelow Syndicate, do execute, acknowledge and deliver to the plaintiffs, Bell Bros. & Co., a deed of general warranty conveying to said plaintiffs lots four (4), five (5), and six (6) in block “L” in the Bigelow Addition to the city of Findlay, O., and that in default thereof that this decree stand and operate as a conveyance thereof. And it is further ordered and adjudged that the plaintiffs, Bell Bros. & Co., recover of the defendants, Elijah T. Dunn, Jasper G. Hull and Joseph Ramsey, Jr., the sum of five thousand five hundred and twenty-five dollars, and that the plaintiffs have execution therefor; to all of which the defendants, Elijah T. Dunn and Jasper G. Hull, duly excepted and here now except. And that as to the payment of five thousand dollars subsidy described in the petition, the defendants, Philip Róettinger and Thomas H. McConica, go hence without day, and it is ordered and adjudged that the defendants pay the costs of this action, taxed $-, in the proportions following, to-wit: Two-fifths by Roettinger and McConica, and three-fifths by Hull, Dunn and Ramsey.”
    The defendants, Hull and Dunn, gave notice of their intention to appeal, which was duly entered on the journal, and within the time allowed by law they executed the necessary undertaking for their appeal in the amount fixed by the court, and caused the appeal to be perfected. The circuit court sustained a motion filed by the plaintiffs in the action to dismiss the appeal on the ground that the cause, as to the appellants, was not appealable; and that action of the court is the error assigned here.
    The appellants also prosecuted error to the judgment from which the appeal was taken, assigning as error, the refusal of their demahd for a trial by jury. The circuit court affirmed the judgment, and a separate proceeding in error to reverse that judgment is prosecuted in this court.
    The cases have been heard together, and will both be disposed of by the opinion.

      A. Blachforcl and E. T. Dunn, for plaintiffs in error.
    The first error complained of is the refusal of the court to try the case to a jury. A jury was not waived. Section 5130. There was do written consent in person nor by attorney filed with the clerk, nor any oral consent entered on the journal. Revised Statutes, section 5204. Kelly v. State, 25 Ohio St., 576; Ellisharpi v. Buck, 17 Ohio St., 72; 4 C. C. Rep., 310; Slocum v. Swan, 4 Ohio St., 166; Averill v. Oil Co,, 22 Ohio St., 372.
    Our next claim is that the petition does not contain a cause of action against the defendants. College v. Love, 16 Ohio St., 20; Johnson v. Ollerbie, 41 Ohio St., 530; Bank v. Cook, 38 Ohio St., 444; Anderson v. Shoup, 17 Ohio St., 128; Story Agency, section 160.
    The master as part of his report, returned the evidence taken by him. In the report he finds the number of hands employed at the dates named. Exceptions were filed by defendants to the report and his conclusions of facts and assigning errors in the admission of testimony. Hoffmire v. Cunard, 11 L. B., 136; Bell v. Crawford, 25 Ohio St., 402; Gill v. Geyer, 15 Ohio St., 408; 1 Cir. Rep., 348. Also the following authorities : 40 Ohio St., 468; 2 C. C., 553; 41 Ohio St., 606; 41 Ohio St., 402; 45 Ohio St., 356; 38 Ohio St., 405; 33 Ohio St., 537; 26 Ohio St., 426; 33 Ohio St., 116; 26 Ohio St., 514.

      George H. Phelps, for defendauts in error.
    The first and most important reason why there can be no error in this record prejudicial to the plaintiffs in error is that the answer of Hull and Dunn, (Ramsey being in default) makes no issue and sets up no defense, set-off or counterclaim. Revised Statutes, Sec. 5070; 35 Ohio St., 104; 2 Sedgwick on Damages, section 441; 37 Mich., 139.
    The petition as to these defendants (plaintiffs in error) is taken as true. There was no issue (as to them) for trial, and hence the mode of trial, whether by the court, jury, referee or master, the plaintiffs in error will not be heard to complain.
    • Under the statute, 5305, and the remedy which it affords, the plaintiff should have no standing in a court of error until a motion for a new trial, is heard and overruled by the common pleas court. Everet, Weddell & Co. v. Sumner, 32 Ohio St., 562; Ide v. Churchill, 14 Ohio St., 372; Turner v. Turner, 17 Ohio St., 450; Spangler v. Brown, 26 Ohio St., 389; Lookwood v. Krum, 34 Ohio St., 1; Westfall v. Dugan, 14 Ohio St., 276; Harnett v. State, 42 Ohio St., 568.
    In any possible aspect of the case, in the absence of a motion for a new trial overruled, the judgment will not be disturbed on error on account of the facts or the evidence; and this court will not review the evidence for any purpose. Averill C. & O. Co. v. Verner, 22 Ohio St., 372; Kelly v. The State, 25 Ohio St., 567; Mason v. Alexander, 44 Ohio St., 318.
    It is issues of fact in actions for the recovery of money only that are triable by jury as a matter of legal right. Revised Statutes, section 5130; Chapman v. Lee, 45 Ohio St., 356.
    There was but one cause of action — a breach of one contract in two particulars, or with two elements of damage; true the plaintiffs below might have sought damages in law, but they elected to sue in equity for specific performance, and the circumstances that the performance involved the payment of money as well as a conveyance of the land, does not make the action one for the recovery of money only. 1 Pomeroy’s Equity, sections 181, 183.
   Williams, C. J.

1. Did the circuit court err in dissmising the appeal?

Under our present legislation, “an appeal may he taken to the circuit court, by a party or other person directly affected, from a judgment or final order in a civil action rendered by the common pleas court, and of which it had original jurisdiction, if the right to demand a jury therein did not exist,” Revised Statutes, section 5226. And the actions in which the right exists to demand a jury, are limited to those “for the recovery of money only, or specific real or personal property.” Section 5130. It is obvious that it is the nature of the action which determines the right of appeal, and not the form of the judgment rendered; so that, if the action be not one in which there is a right to (demand a jury trial, an appeal may be taken from the judgment, though the payment of money be the only relief awarded. It is accordingly provided by section 5230, that, ‘when the judgment is personal against the party for the payment of .money only the penalty of the appeal bond shall be double the amount of the judgment;” and, by section 5231, that the bond shall be conditioned ‘ ‘to the effect that the party appealing shall abide and perform the order and judgment of the appellate court, and shall pay all moneys, costs and damages which may be required or awarded against him by such court.”

The nature of the action must be ascertained from the allegations of the pleadings, and the character of the relief appropriate under them. (

The action brought by the plaintiffs below was one for the specific performance of a contract, by the terms of which the defendants jointly bound themselves, for an entire consideration agreed upon, to convey to the plaintiffs certain designated lands, and pay a specified sum of money. It may be conceded that if, before the bringing of the suit, the stipulations of the contract with respect to the. conveyance of the lands had been performed, and no obligation of the defendants remained unfulfilled except that relating to the payment of the money, an action for its recovery would not be one in which an appeal could be taken. But, in the action brought, the payment of the money was sought to be enforced in connection with, and as a part of the contract for, the conveyance of the land. The plaintiffs were not required, nor permitted, to divide their action into as many separate ones as there were stipulations in the contract which the defendants were bound to perform, nor, in the same action plead each stipulation as a distinct cause of action. The petition properly states the facts as constituting one cause of action, which is for the specific enforcement of all the provisions of the contract which the defendants had bound themselves to perform. The principal issue in the case, and apparently the only one considered of practical importance on the trial, was whether the plaintiffs had so performed their part of the contract as to entitle them to demand performance by the defendants; and the trial of that issue involved the plaintiff’s right to the conveyance of the land, as well.as to the payment of the money. In this condition the case stood for trial. If the issue had been found against the plaintiffs, thus wholly defeating their action, their right of appeal, we apprehend, could scarcely be doubted; nor could that of the defendants had judgment been recovered against all of them for the conveyance of the land only; nor, do we think their right of appeal could be denied if the judgment rendered ag'ainst them had required both the conveyance of the land and the payment of the money according to the terms of the contract.

That suits for the specific performance of contracts for the sale of real property belonged to the exclusive jurisdiction of courts of chancery before the civil code, was well established, and their character was not changed by its adoption. They are still recognized as equitable actions properly triable to the court, and not of right to a jury. When a vendor’s title proves defective, or his estate is not all he agreed to convey, or is subject to an incumbrance, or outstanding interest in a third person, it has been regarded as the right of the vendee, if he so elect, to have specific performance so far as the vendor is able to perform, and compensation for any deficiency in the estate he agreed to convey, or difference between that and the estate which he is able to convey; and it was the practice of courts of chancery, in administering the remedy of specific performance, to award such compensation in proper cases. The remedy went further, and when necessary to the attainment of complete justice the court awarded either party such damages as he might be entitled to in the action, without compelling him to resort to another forum for their recovery, upon the principle that when a court acquires jurisdiction of a cause, it will exercise it to the extent of administering that full relief which the case appears to demand.

A civil action to enforce the specific performance of a contract by which the defendants have bound themselves for both the conveyance of real property and the payment of a sum of money, must be classed with those which were formerly within the exclusive jurisdiction of equity. If such a suit could be said to loose its equitable character by reason of the relief sought in the enforcement of the stipulation for the payment of the money, it would have become necessary for the plaintiff, before the code, either to forego his remedy for the performance of the stipulation to convey the .land or that for the payment of the money, or split his cause of action on the contract and pursue a separate remedy upon each stipulation, and in different tribunals. A party was not required to do either. An action brought to enforce the performance of such a contract cannot now be properly regarded as one for the recovery of specific property, or money only, within the purview of section 5130 of the Revised Statutes; and, though in such action brought against several defendants judgment be recovered against some of them for the conveyance of the land, and against others for the' money, either has the right of appeal from the judgment, because the mode of trial to which, the parties are entitled can be ascertained only from the nature of the case as shown by pleadings when it is called for trial, and upon that mode of trial depends the right of appeal, and not upon the judgment recovered as a result of the trial; so that, in our opinion,the plaintiffs in error were entitled to their appeal taken from the judgment rendered against them, and its dismissal was error.

2. The appeal having been improperly dismissed, and it being necessary to remand the ease to the circuit court for a trial of the issues of fact, the question arises, what is the proper disposition of the case brought here to reverse the judgment of the circuit court affirming that of the common pleas.

We are not aware of any statutory provision, or rule of law which prevents a party who has taken an appeal from a judgment, from also prosecuting error to obtain its reversal. When doubtful of his appeal, that may be a prudent and commendable practice; otherwise, if his right of appeal should not be determined until after the expiration of the time allowed for prosecuting error, and then be determined adversely to him, thus leaving the judgment in force, his remedy on error would be lost. But if the appeal be sustained, the proceeding in error avails nothing, for the cause then stands for a retrial of the issues in the appellate court, the judgment appealed from is superseded by that of the appellate court, and the errors occurring on the trial below, if any were committed, become immaterial. If a party wishes to bring the questions raised on that trial under review by this court, he must make them on the trial in the appellate court, and prosecute error to its judgment; if not so made, so far as this court could be informed by the record, that court may have determined all questions raised in his favor. The appeal has the same effect in that respect as a new trial granted by the trial court. Bartges v. O'Neil, 13 Ohio St., 72, 75. The party having the benefit of a new trial where the errors of the former one may be corrected or cured, they cease to be prejudicial or important. The judgment rendered on the appeal becomes the final judgment fixing the rights of the parties, and that appealed from is no longer operative; and its affirmance on error, before trial had on the appeal, can give it no effect that it did not have without such affirmance. In the view thus taken of the case it is deemed unnecessary to consider the errors assigned.

The judgment of the circuit court dismissing the a/ppeal is reversed, and the cause remanded to that court for further proceedings. The petition in error in the other case is dismissed.

Burket J., having been of counsel, did not sit in the cases.


author: By the Court:

text:
    Meyer v. The State of Ohio. Bissman v. The State of Ohio.
    Motion for leave to file petition in error to the Circuit Court of Summit county.
    'Motion for leave to file petition in error to the Circuit Court of Hardin county.

      'Sale of adulterated wine — Vendor subject to fine, although agent — • Principal residing without the state.

    1. One who sells impure and adulterated wine is subject to fine, although at the time of the sale he is the agent of a principal who resides without the state.
    2. The manager -of a mercantile corporation is subject to a fine under the provisions of the “act to provide against the adulteration of food and drugs,” when the adulterated article is sold or offered for sale by an agent of such corporation acting. within the scope of his authority, and the offense is triable in the county in which such article is sold or offered for sale by such agent.
    (Decided February 25, 1896.)

      Oviatt, Allen dh Gobbs, for plaintiff in error.

      Clark ds Thompson, for defendant in error.

      J. G. Laser and Black c& Mahon for plaintiff in error.

      Frank G. Daugherty, for defendant in error.
   By the Court:

In the former ease Meyer was found guilty in Summit county of selling adulterated and impure wine, and a fine of $600 was imposed by the justice of the peace before whom the verdict was found. On the trial it was shown that the accused was at the time of making the contract of sale in Summit county, a traveling salesman for a dealer in Pitts-burg, and that he sent to such dealer an order to send to the purchaser the goods sold.

In the second case Bissman was tried before the mayor of Kenton and a jury in Hardin county, on .the charge of offering for sale and selling in that county an article known as “Ohio Valley Ketchup,” which contained salicylic acid an article injurious to health. On the trial evidence was introduced to show that the accused was manager of the Bissman company, a mercantile corporation engaged in the wholesale grocery business at Mansfield, in Richland county, and that the sale of the adulterated article was made through a traveling salesman of the company who made the contract of sale at Kenton, and ordered the goods shipped by the company from Mansfield to the purchaser at Kenton. The jury were instructed that if the accused, as manager of the corporation, sent an agent from Richland county to Hardin to sell the article of food in question, and it was so sold, the defendant was liable as though he had been personally present making the sale, and was triable in Hardin county.. The accused excepted to the charge. After the verdict of guilty a fine of $100 was imposed.

.Both judgments were affirmed by the common pleas and circuit courts of the respective counties.

The statutory provisions governing these cases (RevisedStatutes, section8805, etseq., section 8841, et seq., Giauque’s 7th E.) do not exempt any one who sells or offers to sell the articles prohibited, because of his relation to the transaction, whether it is that of agent or principal. As they prohibit both the selling and the offering for sale they do not require or permit the application of technical rules to determine at what point the title passes from the vendor to the purchaser. By their titles and provisions they disclose the purpose of the general-assembly to prevent the sales of the articles described, and to accomplish that purpose by imposing penalties upon all who sell or offer them. The agent is within the terms of the statute because he personally participated in its violation; and the principal is responsible for what he does by another. Any other construction of the statute would afford an easy method for defeating its purpose; and it would extend to those who are likely to know of the adulteration of the article sold immunity from the penalty which is imposed upon others who have not such knowledge.

Other considerations offered in support of the motions are disposed of in State v. Kelly, ante.

The motions are overruled.


text:
    Theis v. State of Ohio.

      Unlawful sale of intoxicating liquors within two miles of agricultural fair — Rev. Slat., 6946 ( 88 Ohio Laws, 60S).-

    By the provisions of section 6946, Revised Statutes (88 O. L., 603), it is made unlawful to sell intoxicating liquors “within two miles of the place where any agricultural fair is being held,” not only during the hours within which the gates of the grounds ,are open for the admission of the public, but during the entire time from the opening of the fair until its close.
    (Decided March 3, 1896.)
    Error to the Circuit Court of Brown county.
    At the February term, 1894, of the court of common pleas of Brown county, the plaintiff in error was convicted and sentenced upon the charge of unlawfully selling intoxicating liquor within two miles of the place where an agricultural fair was being held. The judgment was affirmed by the circuit court, and the plaintiff in error now asks a reversal of both judgments.

      John M. Markley, for plaintiff in error.

      David Tarbell, prosecuting attorney, for defendant in error.
   By the Court:

Conviction was had under section 6946, Revised Statutes (vol. 88, Ohio Laws, 603), which makes it an offense to sell intoxicating liquors “ within two miles of the place where any agricultural fair is being held.” The evidence showed that the sale was made within the limits named, on the evening of October 4th, one of the days during which the fair was held, after the hour of six o’clock. It further appeared that the gates of the fair grounds were closed at six o’clock p. M., and remained closed to the public until six o’clock A. M. of the 5th of October.

The question therefore arises whether the intent of the statute is to interdict simply sales made while the grounds are open to the public, or all sales made within the prescribed distance during the entire time from the opening to the close of the fair. We think the latter is the true construction of the statute, and that the conviction was right. The question is not essentially different in-principle from the one decided in Schuck v. The State, 50 Ohio St., 493.

Judgment affirmed.


text:
    Brown et al. v. Sayler et al.

      Appeal — Dissolution of Corporation.

    (Decided March 3, 1896.)
    Error to the Circuit Court of Highland county.

      Steel da Hogsett, for plaintiffs in error.

      Gardner da Sams and J. B. For coker, for defendants in error.
   By the Court:

Appeal from the court of common' pleas to the circuit court, does not lie in* proceedings for the dissolution of a corporation under chapter 5 of title 1, division 7, of the Revised Statutes.

Judgment affirmed.


author: Minshall, J.

text:
    Blue et al. v. Wentz et al.

      Assessment of land for drainage — Lands provided with natural drainage — Not 'liable for costs of ditch for other lands — Advantage of higher 'tenement over lower, natural right of owner— Rule for assessment on lands benefited by artificial drainage.

    1. Where the lands of an owner, by reason of their situation, are provided with sufficient natural drainage, they are not liable for the costs and expense of a ditch necessary for the drainage of other lands, simply for the reason that the surface water of his lands naturally drain therefrom to and upon the lands requiring artificial drainage.
    2. A lower tenement is under a natural sórvitude to a higher one to receive from it all the surface water, accumulating from falling rains and melting snows, or from natural springs, that naturally flow from it to and upon the lower one. This advantage of the higher tenement is a part of the property of the owner in it, and he is not indebted to the lower tenement therefor.
    3. In making an assessment on lands, benefited by artificial drainage, the extent of their water shed is not the proper rule, but the amount of surface water for which artificial drainage is required to make them cultivable, and the benefits that will accrue to the lands from such drainage. However much water may fall on them or arise from natural springs, if, by reason of their situation, they have adequate natural drainage therefor, they are not liable for the cost of artificial drainage to other lands.
    (Decided March 17, 1896.)
    Error to the Circuit Court of Wyandot county.
    The action below was brought to enjoin certain assessments made on the respective lands of .the plaintiffs to pay for the improvement, of a ditch. The suit was against the petitioners for the improvement and the proper county officers. On issues made up and tried,, judgment, was rendered in favor of the plaintiffs, granting the relief. The case was appealed to the circuit court, where, on leave given, the defendants demurred to the petition, and the demurrer was sustained. On leave given, the plaintiffs filed an amended petition; and to this a demurrer was also sustained. The plaintiffs, electing to abide by their amended petition, the court rendered judgment dismissing it. The only question in the ease before us is as to the sufficiency of the petition, to entitle the plaintiffs to relief.
    Omitting the description of the lands and that of the ditch, as well as some immaterial averments, the petition is as follows:
    The plaintiffs say: “They are the owners in severalty of the tracts of and parcels of land in Wyandot county, described as follows : * * *
    In the year 1873, upon petition duly filed and bond given by David Morrison and others, the board of commissioners of said county caused to be located, established and constructed a county ditch, known as the Morrison ditch, number 14, on the following route: * * *
    “Said ditch was established and constructed at a total cost of about five thousand dollars, for the purpose of draining a large swamp or marsh, which to that time had been wholly worthless, and thereby reclaiming and rendering valuable and capable of cultivation a large body of land covered by the waters of said swamp, and therefore utterly incapable of being cultivated, pastured or put tó any profitable use.
    “The lands of plaintiffs, or any part thereof, were not benefited by said ditch in any manner, and, accordingly, when the cost and expenses of the construction of said ditch came to be assessed upon the lands benefited thereby, no part of said cost or expenses was apportioned or assessed upon the -aforesaid lands of the plaintiffs, but said entire cost and expense was apportioned to and assessed upon the lands' which the drainage of said swamp would render not only productive but peculiarly valuable, the actual value of a large portion of said lands having been increased tenfold.
    “And the plaintiffs now complain and say that on the 17th day of February, 1891, a petition signed by the defendants, Emanuel Wentz, Amos Schoenberger, W. W. Duffield and David Kauble was filed with the auditor of said county, praying the defendants, the board of commissioners of said county, to cause said Morrison ditch to be deepened and widened from its original point of commencement to its intersection with what is known as the Hart ditch, on land then owned by one M. D. Phillips, also for the widening and deepening of a certain branch ditch entering said main ditch from the west, near its intersection with said Hart ditch, and that such proceedings were had by said commissioners on said petition; that on the 10th day of March an order was made by them granting the prayer of the petition, and directing the county surveyor to go upon the line of said ditch therein. described and perform such duties and make such reports and apportionments as are contemplated and specified in sections 4454, 4455 and 4456 of the Revised Statutes of Ohio.
    “And afterwards, on or about, the 10th day of April, 1891, said surveyor filed his report, showing the general character of the improvement, with an estimate of the total cost thereof and an apportionment of the same. - By said report and apportionment over sixty per cent, of the total estimated cost of the proposed enlargement of said ditch is assessed against the lands of plaintiffs, heretofore described.
    “And plaintiffs say that said apportionment is unjust and unfair, and that had it been made according to benefits, no part of the cost of said ditch would have been apportioned against them, or either of them.
    “Upon receiving notice thereof, and that the same would be for hearing before said board of commissioners on the 23d day of April, 1891, plaintiffs appeared and filed their exceptions to said apportionment, but the same were disregarded by said board of commissioners, and with the following trivial alterations, by them made, said report and apportionment were approved by them, and an order made for the sale by said surveyor of the construction of the work of enlarging said ditch, as proposed in his said report.
    “At the time of approving and confirming said report and apportionment, the said commissioners ordered the auditor to put the assessments so made and charged upon the said lands of the plaintiffs upon the proper duplicate for collection.
    “The said commissioners and auditor are threatening to take all the steps necessary to make said apportionments liens upon the plaintiffs’said lands, and to collect the same by legal proceedings, to the great and irreparable damag’e of the plaintiffs.
    “And plaintiffs say that although no benefit whatever would accrue to their aforesaid lands by reason of the construction, cleaning out, deepening or widening of said ditch, although none of said lands were assessed for the original location, establishment or construction of the same, the said defendants are insisting that the plaintiffs should bear a large part of the expenses of cleaning out, widening- and deepening of said ditch, because the aforesaid lands of plaintiffs naturally drained their waters into said swamp, and the same are carried off through said ditch; and the said defendants, the board of commissioners, and their engineer, have made the apportionment for the cost and construction of said ditch not according to benefits which would accrue to the lands of the plaintiffs, but according to the quantity of rainfall or quantity of water which fell upon the lands of the plaintiffs and would be carried off through said ditch.
    “But the plaintiffs say that whatever benefit might accrue to any lands assessed for the location and construction of said ditch would accrue to the defendants alone, and that all the benefits therefrom would accrue to the lands of the said defendants.
    “The plaintiffs therefore say that said proposed assessments upon their lands are unauthorized, illegal- and oppressive; that they, the said plaintiffs, are united in interest in resisting the collection of any sum whatever, for the purpose contemplated in the aforesaid proceedings of the commissioners, and that the plaintiffs and defendants are the only parties affected by said proceeding;
    “The plaintiffs say that the location and construction of said proposed improvement is not conducive to the public health, convenience or welfare, but was specially located and apportioned for the private benefit of the petitioners for said improvement; nor did said commissioners proceed to view the line of the proposed improvement, and to determine by actual view of the premises along and adjacent to the line of said ditch whether the said improvement was necessary or would be conducive to the public health, convenience or welfare, as is required by section 4452 of the Revised Statutes of this state; nor did the surveyor go upon the line of said ditch, described in the petition therefor, and survey and levy the same, and apportion the cost of location and labor of construction of said improvement, as is required by sections 4454 and 4455 of the Revised Statutes of Ohio, but the location and construction and apportionment thereof was done by the direction and at the suggestion of the defendants herein.
    “And plaintiffs further say, that the said county-commissioners, and the county surveyor have colluded and conspired together for the purpose of promoting the construction of ditches, and to that end have agreed to put such a wrongful construction upon the law as enables them to assess a large portion of the costs and expenses of making ditches upon lands not benefited by their construction, and in pursuance of such collusion the said surveyor made, and the said commissioners confirmed the assessments herein complained of, upon plaintiff’s lands aforesaid and ordered the same to be levied thereon, for the avowed reason that the surface water from said lands runs through said ditch, and for no other reason whatever. And plaintiffs say that the said surface waters have been running through depression in which said ditch is constructed ever since the “flood,” to the same extent that they now do; that said depression was the natural drain and outlet for said waters, and plaintiffs’ said lands were naturally and sufficiently drained thereby, and were as well drained, and as thoroughly, before said ditch was constructed as they have been since, or will be when said ditch has been deepened and widened, the first or, the fiftieth time.

      “The plaintiffs therefore ask that the said proceedings of the said commissioners in said matter of deepening and widening said ditch may be reviewed by this court, that the gross injustice in the said apportionment of the costs and expenses of said improvement may be corrected; that said commissioners and said auditor may be enjoined from levying the said assessments or any part thereof, upon any of the said lands belonging to either of the plaintiffs, and that said auditor be enjoined from placing upon the tax duplicate any of the assessments for said improvement, ordered to be levied upon the lands of the plaintiffs, as aforesaid, and that the plaintiffs- may have all other proper relief.”

      Carey <£ Parker and JohnD. Sears, for plaintiffs in error.

      Elza Carter and D. D. Clayton, for defendants in error.
   Minshall, J.

An assessment on lands presupposes some special benefit to .the lands to be assessed, derived from the improvement for which the assessment is made. When, in the nature of things, there can be no special benefit to the lands from the proposed improvement, an assessment made on them for any part of the cost of the improvement, would be a simple taking of the property of one person for the benefit of another ; and the assessment would be void. This,. I appreprehend, will not be controverted by any one.

In a state of nature, as appears from the petition, the lands of the plaintiffsdid not need drainage, and were not and are not benefited by the ditch. Being higher than those of the petitioners for the ditch, such waters as accumulated upon them from rains and melting snows, naturally-drained off into the swamp or swail, drained by the ditch. The petition avers that when the ditch was originally constructed, which was in 1873, the lands of the plaintiffs not being benefited thereby, were not assessed for its construction, nor was any part of them. But it is now claimed, as the petition avers, that because the lands of the plaintiff’s naturally drain into the ditch, constructed to drain the swail, they should be required to contribute to its improvement, not according to any actual benefit that would accrue to the lands, but according to the quantity of water that will fall upon their lands, and be drained off through the ditch; and this irrespective of the fact that the swail is the natural outlet and drainage of their lands and by which they are as well drained as if no ditch had been constructed.

This, we think, is erroneous. If the lands of the plaintiffs are so situated that, by reason of their level, the surface water thereon derived from falling rains and melting snows, or from natural springs, naturally drained off into this swail, and are no better drained by the ditch than they were by the swail, then it is hard to see upon what principle the lands of the plaintiffs should be assessed for the construction of the ditch or its improvement. It is a principle of property well recog'nized in many of the states, and particularly, in Ohio, that, where lands are situated as-above supposed, the lower tenement is under what is called a natural servitude to receive such waters as flow to and upon it from a higher one, provided the industry of man has not been used to create the servitude. The right which the higher tenement has to require the lower one to receive from it the surface water that naturally drains to and upon it, is a right incident to the higher tenement, and a part of the property of the owner in it; and for any invasion .of this right the law will afford him a remedy. Washburn on Easements, 23, 211, 336; Tootle v Clifton, 22 Ohio St. 247; Butler v. Peck, 16 Ohio St. 334; Crawford v. Rambo, 44 Ohio St. 279, 284; Kauffman v. Griesemer, 26 Pa. St., 407. The reason for this usually given, and generally accepted, is that water is naturally descendible, so that, in the. course of nature, water must flow from a higher to a lower level; .and the owner .is entitled to enjoy his property with such natural advantages as are derived from its situation.

It is then apparent that the proposed assessments upon the lands of the plaintiffs in this case cannot be sustained. To do so would be to compel the plaintiffs to pay for that which they possess as a part of their property in their lands — the right to require the lands on and along’ the swail to be servient to their lands for the purpose of surface and other natural drainage; and for the enpyment .of this right, incident to their lands, they.- cannot be assessed.

But if the lands .of the plaintiffs were subject to assessment,.the.rule adopted for making the apportionment, would still be open to objection. The benefits for which an assessment may be made, must relate to the betterment of the land for the purposes to which it may reasonably be put. It is difficult to see how this may be done by simply estimating the amount of its water-shed. It is not the rain that falls on the land that determines its need of drainage — rain is necessary to its fertility —but it is the amount that falls on it for which artificial drainage is needed. This, from the natural situation of the land, may be little or nothing; and where it is nothing, there can be no ground for an assessment upon it for the purposes of drainage, however much rain may fall on it. The situation of lands with respect to drainage, is a controlling factor in their value; the purchaser pays for this advantage in acquiring his property; and there is no principle of justice upon which others, less favorably situated, can compel him to contribute toward making their lands as good as his in the matter of drainage. Each owner has the right to enjoy his property with its advantages and he cannot be deprived of his advantages for the benefit of others upon some fictitious notion of benefits conferred.

The petition of the plaintiffs make a case for relief ; and, if the facts are as stated in the petition, the assessments should be enjoined. Or if some benefits are conferred on the lands of the plaintiffs by the improvement for which, within the principles before stated, they may be assessed, power is conferred on the court by section 4491, Revised Statutes, to set aside the assessments and cause such apportionment of the cost and expenses to be made, as is required by the facts of the case.

Judgment reversed and cause remanded for further proceedings.


text:
    City of Cincinnati v. Manss

      Street improvement — Owner of property represents in petition certain number of feet — Estopped after improvement from claiming less number of feet.

    Where an owner of property on a street unites with others in a petition for its improvement, stating therein the number of feet his property abuts on the street, that the council may be informed as to the interest of the petitioners, he thereby represents to the council that he has the number of assessable feet stated in the petition; and, after the improvement has been ordered and the work done, he is estopped to say that he has a less number of feet subject to assessment.
    (Decided March 17, 1896.)
    Error to the Circuit Court of Hamilton county.

      Frederick Hertenstein, Corporation Counsel and William H. 'Whittaker, for plaintiff in error.
    The principal questions raised in this case are:
    1. Whether the decree in the above case of Ottomar Topf \ on behalf of himself et al., v. The City, is res adjudicada, and bars the defendant from prosecuting this action.
    2. Whether the signing of the petition foi;.the improvement estops him from claiming that his lot does not front on the street improved.
    3. Whether his lot does not front upon the street improved by reason of having a gate which affords access to and from the premises opening upon that street.
    Another question raised by the cross petition in error of defendant in error is, whether excessive installments of assessment paid can be credited upon subsequent installments or recovered back.

      The common pleas court held that the decree in the case of Ottomar Topf on behalf of himself, et al., v. The City of Cincinnati, et al., was a bar to this action, and dismissed the petition. The circuit court reversed the judgment of the common pleas court, holding, in a decision published in the Court Index, August 15, 1895:
    1. That a gate in a lot opening upon an improved street did not constitute a front so as to make the owner liable for the whole of the assessment upon that street.
    2. That the signing of the petition did not estop him from bringing’ this action.
    3. That the plea of res adjudicata by the city was not supported by the evidence.
    4. That the plaintiff was not entitled to apply excessive installments of assessment upon subsequent installments, or to recover back excessive payments
    The authorities in the state and elsewhere are numerous to the effect that a plea of res adjudicata applies not only to points upon which the court was actually required to form an opinion and pronounce a judgment, but to every point which properly belong to the subject of the issue, and which the parties, exercising reasonable diligence, might have brought forward at the time. 2 Taulor on Evidence, section 1573; Bridge Co. v. Sargent, 27 Ohio St., 233; Swenson v. Cresop, 28 Ohio St., 688; Martin v. Roney, 41 Ohio St., 141; Shaw v. City, 1 Nisi Prius Rep., 88; Lumber Co. v. City et al., No. 47,375, superior court.
    Defendant in error, the plaintiff below, signed a petition for the improvement. "We submit that defendant in error is estopped from claiming that he does not own the number of front feet on Carson avenue found by the decree in tbe former case.
    We refer to the opinion of the circuit court upon this branch of the case, that the defendant in error would not be entitled to have subsequent excessive payments credited on future installments. This follows logically from the principles laid down in Wilson v. Pelton, 48 Ohio St., 306, or Grosbeck v. City, 51 Ohio St., 365, for if under section 5858, Revised Statutes, an action to recover an illegal assessment, must be brought within a year after it is paid, credit should not be given for excessive payments after the expiration of the year.

      Charles F. Proste, for defendant in error.
    Defendant in error’s' lot is bounded by Carson avenue to the extent of 417 feet. We claim the lot does not front on Carson avenue, under the decision of the case of Haviland v. City of Columbus, 50 Ohio St., 471. The defendant in error in this case, signed a petition requesting this improvement to be made, but signed no numerical quantity of feet. He, however, did nothing more, actively or otherwise, in the furtherance of this improvement. We claim he is not estopped from objecting that any of the subsequent proceedings of said plaintiffs in error, have, with reference to himself, been conducted in violation of the assessment laws. 39 Ohio St., 281; 22 Mich., 104; 56 N. Y., 251; 26 Wis., 67., vol. 9, O. C. C. Rep., 243; 31 W. L. B., 335.
    These plaintiffs in error also plead res adjudicata, and allege that on the 25th day of May, 1893, in the ease of Ottomar Topf et al. v. The City of Cincinnati, superior court of Cincinnati, wherein this defendant in error was plaintiff, and the plaintiffs in error were defendants, for the same cause of action alleged in the petition. A decree was rendered, finding the equities of the case with the defendants, dismissing the petition, and dissolving the injunction.
    The decree rendered in that case, was to the effect, that said assessment of three and ninety-seven hundredths (3.97) dollars per front foot, was a valid assessment, and that the plaintiffs were not entitled to the relief prayed for, namely,, to have the said assessment of three and ninety-seven hundredths (3.97) dollars per front foot declared null and void. This, we contend, is as far as the decree extends. The question whether the lot of the plaintiff was assessed for too many feet toas not before the court, or raised by the pleadings, 10 O. S., 45; 5 Wall. (U. S.) 502.
    These plaintiffs in error, however, in determining the defendant in error’s proportionate share of the total cost of the improvement, assessed this rate per front foot upon 417 front feet, and the result of the calculation of that rate per front foot upon 417 is called an assessment, when, -in fact, it is the proportionate share, and is, therefore, an assessment in name only.
    And to successfully maintain res ctdjudicata, there must he a concurrence of the four conditions, viz.:
    Subject Matter, . . 1 21 vol. American
    Causes of Action, . i and English Cy.
    Parties, .... j" of Law, 227.
    Quality of Persons, j
    In the cases now before the court, there is no identity of subject-matter.
    The subject-matter in the prior suit, was the assessment upon each and every front foot, of property bounding and abutting upon this improvement.
    The subject-matter in the case at bar, is \ho, proportionate share, of this particular lot, of the total cost of this improvement.

      Burlen v. Shannon, 99 Mass., 200; Lea v. Lea, 99 Mass., 493; Porter v. Wagner, 36 Ohio St., 475; Washington Steam Packet Co. v. Sickles, 5 Wall (U. S.), 502.
    Section 5020 of the Code provides that “the cause of action so united, must affect all the parties to the action.” Having two causes of action, he could not be compelled to join. Merrill v. Lake, et al., 16 Ohio, 407; section 117, in Bliss on Code Pleadings; 38 Iowa, 468.
    Is the. defendant in error entitled to have ap ■ plied as a credit toward the subsequent installments to become due, the amount of the payment upon said assessment, already made by him, over and above what was really due, by the terms of the assessing ordinance, at the time of payment of said installments? We claim it is not an assessment, and an action brought for the recovery of the excess, would be brought under section 4982, Revised Statutes of Ohio, and not under section 5848, of Revised Statutes. Grosbeck v. City of Cincinnati, 51 Ohio St., 376; Wooley v. Staler, 39 Ohio St., 359; Wilson v. Pelton, 40 Ohio St., 310; Pike v. Cummings, 36 Ohio St., 213; Chamberlain v. Cleveland, 34 Ohio St., 551; Wewell v. Cincinnati, 45 Ohio St., 424.
   Minshall, J.

The original action was commenced in the court of common pleas of Hamilton county by John Manss against the auditor of the city of Cincinnati, and the auditor and the treasurer of the county, and sought to enjoin, in part, the collection of certain assessments that had been, made on his property for an improvement of Carson avenue in the city of Cincinnati, from Wabash to Glenway avenue. The case having been heard and decided against the plaintiff in the common pleas' was appealed by him to the circuit court; and was there heard and determined on the pleadings and evidence. The evidence showed, and the court found, that the property of the plaintiff abutted lengthwise 417 feet on the avenue, but did not in fact front thereon; that it fronted 121, and a fraction feet on Warsaw avenue, and a like number of feet on Laclede avenue. So that, under the rule heretofore adopted as to corner lots, it should have been assessed for the sum of 243i feet, only.

But it further appeared in the case, that the plaintiff, Manss, was one of the owners residing-on the avenue who petitioned the proper board for the improvement, and the improvement was ordered upon his petition and those who signed with him. Under section 2272, Revised Statutes, a petition signed by three-fourths in interest of the owners of property abutting upon the improvement, is the only authority to the city council to order an improvement to be paid for by assessments on the front foot. In the petition the plaintiff represented 417 feet, the length of his property on the improvement; and, in ascertaining whether under section 2272, Revised Statutes, the petition was signed by the requisite number in interest, received credit for 417 feet. And the question now arises, whether under these circumstances, he can bé heard to say, that he should be assessed for a less number of feet than he represented and for which he received credit, on the question whether three-fourths in interest had signed the petition. We think not. It would not only be contrary to equality to allow an owner a greater number of feet as a petitioner in procuring an improvement, than he is to be assessed on in paying for it, but it would defeat the equity and policy of the statute. The language, “three-fourths in interest,” as used in the statute, necessarily refers to the interest the petitioners have in the cost of the improvement. It represents three-fourths of the total number of feet on which the costs of the improvement are to be assessed. If it referred to the benefits of the improvement, or the value of the lots of the petitioners, it would place it in the power of those having the least to pay to compel an improvement largely at the expense of those deiiving a much less benefit from it. If the number of feet a petitioner represents himself as having on the improvement, is not the number on which he is to be assessed, in case the improvement is ordered,then there is no mode by which it can be determined from the petition, whether the requisite number have asked for the improvement. It is certainly not the business of the council or of the board of improvements, to ascertain for themselves, aliunde the petition, whether a petitioner has the number of feet subject to assessment, represented by him in the petition. What he represents in the petition must, as against him, be taken as true. He is estopped to say otherwise. For it must be remembered that the very purpose of stating in a petition the number of feet each petitioner has, is to .enable the council to determine, whether the petitioners, in the aggregate, represent three-fourths in interest of the property owners to be assessed for the improvement. And every one who signs a petition of this kind must be held to know the purpose and effect of it. There is nothing in. the case of Tone v. The City of Columbus, 39 Ohio St., 281, in conflict with what is here held. It was there held that Tone, by having signed the petition for the improvement, was not estopped from averring and proving that the petition had not been signed by the requisite two-thirds in interest, required by the statute under which the proceeding was had. But that is not this case. Manss claims that he has not the assessable number of feet represented in the petition for the improvement, which petition was signed by himself. A very different question from that in the case of Tone.

The view here taken of the case makes the consideration of other questions presented in argument unnecessary.

Judgment reversed, and petition of plaintiff below dismissed.


author: Shauck, J.

text:
    Zumstein, Treasurer v. The Consolidated Coal & Mining Co., et al. The Same v. Lysle et al.

      Taxation of real estate — Lands owned by municipal corporation— L'eased for more than fourteen years — Section 3733, Revised Statutes.

    Lands owned by a municipal corporation and leased for more than fourteen years, not subject to re-valuation, are under the? provisions of section 2733, Revised Statutes, taxable only to the extent of the lessee’s interest therein.
    (Decided March 17, 1896.)

      Error to the Circuit Court of Hamilton county.
    In these eases the treasurer of Hamilton county brought suit to charge different parcels of wharf property belonging to the city of Cincinnati, but leased to other defendants with taxes, in one case for the years 1881 to 1887, inclusive, and in the other for the years 1883 to 1887, inclusive, which had been accidentally omitted from the tax duplicate. The cases were tried in the circuit court ■on appeal, and the facts material to the present controversy were found to be as follows:
    The lands are owned by the city in fee, are within its corporate limits, and are for wharf purposes. Not being needed for those purposes for the time being, the city leased one portion of the lands for twenty years from November 23, 1881, and the other for fifteen years from March 18, 1882. The defendants are the city, its lessees and others acquiring interests by leases or assignments from or through the original lessees. Shortly before the bringing of the suits it was discovered that said lands had been omitted from the duplicates of real estate in the county, and that no taxes had been paid thereon for the years aforesaid. Thereupon the auditor proceeded to determine the value of the fee in said lands, and after giving notice to the lessees of his intention to place the same upon the duplicate, and giving them an opportunity to be heard, placed the same upon the duplicate. The values of said parcels were properly ascertained. No taxes had been paid thereon for any of the years mentioned. The property was not, by the terms of the leases, subject to revaluation, nor did the lessees undertake to pay taxes thereon.

      The circuit court, as its conclusion of law, found that the lands are not taxable. The reversal of its judgment is the object of this petition in error.

      Fredenck S. Spiegel, county solicitor; Mathews da Cleveland, Harry L. Burgoyne and Coppoch da Gallagher., for plaintiff in eri-or.
    It will probably not be claimed that the property of the city of Cincinnati is exempt, unless it is fairly covered by some statute exempting it.
    This court has uniformly held that in the strongest language that the constitution is imperative as to taxing all property, not exempted and that its provisions preclude any other exemptions than those indicated. Zanesville v. Richards, 5 Ohio St., 590.
    It is further held that the statutes of exemption shall be strictly construed, and shall not be considered as including any species of property which does not fairly fall within their provisions. Cincinnati v. State, 19 Ohio St., 110.
    The only exemption which can be claimed to apply to the property involved in this case is paragraph eight, of section 2732, Revised Statutes.
    It is evident, we think, that the laws relating to the taxation of real property in the state, do not deal with a less interest than the fee. If the legislative intent, as expressed in section 2733, had been to impose a tax upon the leasehold merely, surely such intent would have been plainly expressed. A construction so opposed to the whole tax system cannot be upheld unless warranted by the specific language of the statute. Hitherto our argument has been based upon the language of the statute itself, without reference to any judicial interpretation which has been given to the statute.

      We find, however, that this court, in the case of Bentley v. Barton, 41 Ohio St., has given to section 2733, the construction for which we contend. In that case, lands owned by the state, and leased for a term exceeding fourteen years, were held to be taxable in the name of the lessee, and a sale of the lands was ordered, upon the petition of the county treasurer, to recover the amount of the tax. Lee, Treas., v. Sturges, 46 Ohio St., 159; Zanesville v. Richards, 5 Ohio St., 590; Cincinnati College v. State, 19 Ohio, 110; Library Association v. Pelton, 36 Ohio St., 258; Sturges v. Carter, 114 U. S., 521; 30 Ohio St., 234; 41 Ohio St., 410; Ludlow v. Brewster, 3 C. C., 82.
    The general exemption statute is section 2732, and the eighth subdivision of that section is the only one which it can be claimed relates to the case at bar. It follows, therefore, that lands belonging to the city of Cincinnati, when leased, and devoted to a private use and occupancy, are taxable, as they would be if they were the property of a private individual.
    We submit, first: That section 2733 authorizes the taxation of these lands in the name of the lessee. Second: That even in the absence of section 2733, the lands would-be taxable under the general tax laws of the state, as they do not come within the provisions of any exempting statute.

      Frederick Hertenstein, William H. Whittaker, Fit■ tridge, Wilby da Simmons, Herbert Jenny, Van Seggern, Phares da Be Wald and Ramsey, Maxwell da Ramsey, for defendants in error.
    This case depends on the construction to be given to section 2733, Revised Statutes. We claim that the property is exempt from taxation, being public property, and the revenue being .devoted to a public use. The fact that it has been leased does not deprive it of the exemption. Dillon, Mun. Corp., 4th ed., section 773; State v. Gaffney, 34 N. J. L., 131.
    The statute requires the lessee to pay the taxes. Looking at the history of the statutory legislaton upon this subject, it would appear that the lessee only is liable for the taxes. Daugherty v. Thompson, 71 Texas, 192.
    The original petition- was hied by John Zumstein. We hnd an entry made April 11, 1892, substituting Reuben B. Brooks, as plaintiff. On the day following an amended petition was hied in the name of R. B. Brooks. The city and the other defendants hied answers to the amended petition, not to the original petition.
    An appeal was taken, and the finding of facts shows that since the amended petition was hied in this case, said John Zumstein, county treasurer, has retired from office, and Leo Schott has become treasurer of Hamilton county, state of Ohio, in his stead and place, and “is entitled to have this action revived in his name.” We claim, therefore, that the court has no jurisdiction in the premises, the petition in error having been hied in the name of John Zumstein, treasurer, and not in the name of his successor in office. Smetters v. Rainey, 13 Ohio St., 568; 14 Ohio St., 287; Kennard v. Kennard, 35 Ohio St., 660.
    There are four distinct irregularities in the listing and valuation of this property, each of which is sufficient to render the whole assessment void.

      Lessee of Perkins v. Dibble, 10 Ohio, 434; Burchard v. Hubbard, 11 Ohio, 316.

      But this duplicate does not even contain a sufficient descriptionof the parcel of tract of land.
    The Ohio cases in point, other than the two already cited, are: Massie's Heirs v. Long, 2 Ohio, 287; Lafferty v. Byers, 5 Ohio, 458; Lessee v. Emerick, 6 Ohio, 391; Douglass v. Dangerfield, 10 Ohio, 152; Hamel's Lessee v. Smith, 15 Ohio, 134; Turney v. Yeoman, 16 Ohio, 24; Stewart v. Aten's Lessee, 5 Ohio St., 257; Winkler v. Higgins, 9 Ohio St., 599; Humphries v. Huffman, 43 Ohio St., 395; Worthington v. Hewes, 19 Ohio St., 75; Thompson v. Gotham, 9 Ohio, 175; Lafferty's Lessee v. Byers, 5 Ohio, 458; Cooley on Taxation, 470.
   Shauck, J.

Whether a tax may be assessed upon these lands or any interest therein must be determined by a construction of the appropriate subdivision of section 2732, Revised Statutes, which relates to exemptions from taxation, and of section 2733, which relates to the taxation of lands belonging to the state or to a municipal corporation, and leased for a term exceeding fourteen years.

The exemption from taxation provided for in the eighth subdivision of section 2732, is of “all market houses, public squares, or other public grounds, town or township houses, or halls used exclusively for public purposes, and all works, machinery and fixtures belonging to any town, and used exclusively for conveying water to such town.

Section 2733 provides that “All lands held under lease for any term exceeding fourteen years, and not subject to revaluation belonging to the state or any municipal corporation, or to any religious, scientific or benevolent society, or institution, whether incorporated or unincorporated, or to trustees for free education only, and school and ministerial lands, shall be considered for all purposes of taxation as the property of the person or persons holding the same, and shall be assessed in their name.”

Counsel for the plaintiff in error, construing these provisions literally, insist that although the lands were acquired for a public purpose by the city of Cincinnati, they are not now used exclusively for a public purpose, and that they are not therefore exempt under the eighth subdivision of section 2732, and are therefore subject to taxation as the property of the city; and, further, that the lands are taxable under the express provisions of section 2733, since they are held under lease for a term exceeding fourteen years, and not subject to revaluation. And, to sustain this view, the definition of the term “land” in section 2730 is invoked.

This conclusion, it. is insisted, is the necessary result of the statutory provisions referred to, although cases are conceivable in which the amount of the tax upon the fee would prevent the leasing of lands held in the ownerships mentioned in section 2733, so that the owners, would derive no income from the lands and the public no tax.

In opposition to this view, it is urged that' the lands in question, though occupied by shippers of coal, are “used exclusively for public purposes” since the rents derived therefrom are so used, and that there should not be imputed to the legislature an intention to provide for the sale of the fee belonging to the city to discharge any obligation which the statute imposes on its lessee.

The tax does not seem to be imposed upon the fee of these lands by provisions so clear as to relieve us of the duty of considering these provisions together and ascertaining the purpose of the legislature as indicated by all the related provisions.

It is not disputable that if the lands had not been leased, they would be exempt under the terms of the eighth subdivision of section 2732. It does not seem necessary to consider what would have been the effect of the leases, if the taxability of the lands were to be determined by section 2731, which provides for the taxation of. all property whether real or personal, and the exemption referred to. For, since their taxability results from the fact that they are held under leases from the city for terms exceeding fourteen years, and not subject to revaluation, the case is to be determined by the particular provisions of section 2733, by which the general assembly has defined the extent of the tax. There should be no inference except such as may aid in ascertaining the meaning of this section.

■ The term ‘‘lands,” when not restricted in meaning by related provisions, includes all interests therein. There are, however, considerations which indicate that the term is used in a restricted sense in section 2733. By the terms of the section, it does not apply to lands held under leases for terms shorter than fourteen years, nor to those held for longer terms, if by the stipulations of the lease the lands are, as between the lessor and lessee, subject to revaluation. These conditions to the application of the section can have no meaning if the object of the legislature was to impose a tax upon the fee. The value of the fee could not be at all affected by the duration of the lease, nor by stipulations for revaluation. These conditions are, however, important in providing for the taxation of the lessee’s interest in such lands. They indicate that in the opinion of the legislature in leases for a shorter term, the rent reserved would be the substantial equivalent of the rental value, and that in the cases of leases for a longer term, but stipulating for revaluation, the rent reserved and the rental value would be made substantially equal by such revaluation. The result in either case would be, that the lessee’s interest would not be of substantial value.

By the terms of section 2733, leased lands belonging to a municipal corporation and. those belonging to the state, are subject to the same rule.

The third subdivision of section 2732 very clearly exempts “all property, whether real or personal, belonging exclusively to the state.” It cannot be supposed that, notwithstanding this exemption, the legislature contemplated a tax'upon the fee, to be assessed against the lessee, and enforced against the property of the state or the municipality. We are of the opinion that the purpose of section 2733 is to impose a tax upon the lessee’s interest in lands, in the cases specified, and not a tax upon the fee.

Judgments affirmed.