author: By the Court.

text:
    Bailey & Co. et al. v. Childs, Groff & Co.

      Attachment — Property held by one officer under writ of, not subject to levy under a writ held by another officer — Garnishment.
    Different attachments of the same property may be made by the same officer (Revised Statutes, sec. 5535). But personal property held on attachment by one officer, is not subject to levy and seizure under writs in the hands of another officer. In order to attach property in the custody of an officer under legal process, unless the writ is placed in his hands,' he must be proceeded against as a garnishee. (Locke v. Butler, 19 Ohio St. 587). And this rule is not changed by the assent of the officer holding the property, to the subsequent so-called levy.
    (Decided Oct. 29, 1889.)
    Error to the Circuit Court of Trumbull County.

      Homer E. Stewart, for plaintiff in error.
    No brief for defendant in error.
   By the Court.

The sheriff of Trumbull county levied an attachment in favor of Morgan, Root.& Co. upon the personal property of the debtor, and during his possession under the levy, Childs, Groff & Co. caused an attachment, issued by a justice of the peace against the same debtor, to be placed in the hands of a constable, who, with the assent of the sheriff, went through all the forms of making a levy on the same property. The constable returned on his writ that he attached the property subject to” the previous levy of the sheriff, in whose possession the property then remained. Subsequently, and while the sheriff was still in possession of the property, writs of attachment procured by Joel J. Bailey & Co., and Edwards, Townsend &■ Co., against the same •debtor, came to his hands, and were by him levied on the goods. The property was sold under an order of sale issued in the attachment proceeding of Morgan, Root & Co., and sold for more than enough to satisfy their claim.

Held: That the property in the custody of the sheriff was not subject to levy and seizure by the constable. While different attachments of the same property may be made by the same officer (Rev. Stats, sec. 5535), personal property held under attachment by one officer, can not be levied upon under a writ in the hands of another officer. In order to attach the property in the hands of the sheriff, he should have been proceeded against as a garnishee (Locke v. Butler, 19 Ohio St. 587). His assent to the so called levy did not change the rule.

Judgment modified.


source: Caselaw Access Project

license: Public Domain

text:
    Young, Treasurer v. The Pennsylvania Company.

      Findings of facts — Section 6710, Rev. Stats., conslmed.\

    (Decided Oct. 29, 1889.)
    Error to the Circuit Court of Holmes County.

      Oritehfield & Huston, for plaintiff in error.

      Bush Taggart, for defendant in error.
   By the Court.

A finding of fact, made by the circuit court from the evidence contained in a bill of exceptions in a case before it on error, is not authorized by sec. 6710 of the Rev. Stats., as amended May 4, 1885 j (82 Ohio L. 230), and if in fact made, will present no question that this court will review.

Judgment affirmed.


text:
    Neubert v. Phillips.

      Practice — Supersedeas—Stay of judgment.

    (Decided Nov. 1, 1889.)
    Motion for a stay of execution in cause No. 2018, on the General Docket.

      Joshua B. Seney and H. 8. Banker, for plaintiff in error.

      Lee & Brown, for defendant in error.
   In the Circuit Court of Lucas county, the judgment of the court of common pleas, in favor of Neubert and against Phillips in a suit brought to recover the possession of certain land, was reversed and the cause remanded for a new trial; and a proceeding in error, brought by Neubert against Phillips, is now pending in this court for a reversal of the judgment of the circuit court, and an affirmance of the common pleas; and the present application is for a stay of the judgment of the circuit court, until the final disposition of the proceeding in error here.

Held: that this is not the proper practice in a case of this kind; Schaeffer v. Marienthal, 17 Ohio St. 183, 188. That the plaintiff in error here should apply to the court, io which the cause has been remanded for further proceedings, for a continuance of the cause until the final disposition of the case on error in this court. The court to which the cause has been remanded, may, in the exercise of a sound discretion, so continue it; but if it does not, the party making the application may save his rights by excepting to the overruling of his motion.

Motion for supersedeas overruled.


author: Minshall, C. J.

text:
    Seebaum v. Handy et al.

      Lien of feed-stable keeper wider 2§ 3212 and 3213 Rev. Stats.— Waiver of,

    1. Tbe lien given the “person” by §2 3212 and 3213, Revised Statutes, who furnishes feed and bestows care on a horse or other animal therein named, is a right in the nature of a common law lien to retain possession as a security for the charges; and may be waived by the “person” voluntarily parting with the possession to the owner without the charges being paid.
    2. The plaintiff below was the keeper of a feed-stable in the city of Cincinnati. The owner of a horse, who lived out of the city, was in the habit of leaving it with the plaintiff, when in the city, to be fed and cared for as long as suited liis-convenience ; when called, for, the horse would be delivered to the owner, and not returned, except at such intervals as suited the owner’s convenience when again in the city. The plaintiff kept an account in which the owner was charged with the feed and care of the horse from time to time, as it was left with him. On or about the 12th of November, 1884, the horse was called' for and delivered to the owner, as usual; the charges for feed and care then amounted to over a hundred dollars. Shortly afterward the owner was killed by being thrown from his buggy. And some time after that, the horse was driven to the city by a brother of the deceased and left at another feed stable, from which it was replevined by the plaintiff in an action against certain children of the deceased, who claimed to be the owners of the horse.

      Held: That the delivery of the horse was a voluntary one, and the lien waived. Whether an express or implied contract to return the animal would have varied the rights of the parties, is not determined ; for the reason, that no express contract was claimed, and none can be implied from the circumstances of this case.
    (Decided November 19, 1889.)
    Error to the Circuit Court of Hamilton County.
    The action below was replevin for a horse. It was commenced in a justice’s court, and appealed to the common pleas. The petition averred a special ownership in the plaintiff by virtue of a lien for feeding the horse and paying the expense of shoeing for more than ten days before the commencement of the action. The answer is in substance a general denial of the petition. The case was tried to a jury upon the issues joined, which found for the plaintiff, and assessed his damages for the detention, at one cent. A motion for a new trial was then made' on the ground of a misdirection of the court to the jury and a refusal to charge as requested. The motion was overruled and judgment entered on the verdict. The defendants tendered their bill of exceptions, which was signed and made a part of the record.
    The bill sets forth all the evidence offered as to the existence of the lien, the charge of the court, and the instructions which wrere asked and refused. The evidence offered consisted of the testimony of the plaintiff and the items of his account, and is as follows:

      Plaintiff’s testimony — I keep a livery stable on Seventh street in Cincinnati, and have done so for many years.
    Truman B. Handy, the father of the defendants, was in the habit for several years of putting up his horses at my stable; he paid me all! his bills up to August 1, 1883. After that he paid me nothing on account of stabling, shoeing, feeding or expense of any kind of caring for the horse “ Jim,” which was replevied in this action.
    This account '(marked “A” and hereto attached), is a true ■copy of my account against said Truman B. Handy up to November 1, 1884.
    He brought his horse to my stable five times between November 1, 1884 and November 12, 1884, for which I charged $2.00 in addition to what is shown on this account.
    Mr. Handy’s habit was to drive into the city in the morning, drive his horse and buggy to my stable, deliver them to some employe about the stable and go about his business. In the evening, or when he wanted to use the horse, ho would ■come to the stable and order his horse, and some one of my employes would then harness his horse and give him the reins, and he would then drive away. During the day I would have the horse fed and watered, and give him whatever attention he required. This was the usual course of business between us. I charged 40 cents a day for the feed and care of the horse when left at my stable in this way. I made out my bills every month, and my account shows at the beginning of each month the amount of my bill for the preceding month; for instance, the charge of $1.20 June 1, for stabling during May, 1884, shows that Mr. Plandy stabled his horse there three days during that month. During the month of June he left his horse at the stable in the usual way twice, as shown by the charge of July 1. And during the month of July the horse was left there but one day, as shown by the 'charge of August 1, in said account. From the middle of August to the first of November, said horse was at my stable all the time, and I charged $20.00 a month.
    The last time the horse was at my stable before Mr. Handy’s death, was, I think, November 12, 1884. On that occasion when Mr. Plandy called for him he was harnessed and delivered to Mr. Plandy in the usual way. Mr. Handy was living in Clifton at the time this bill was made.
    Mr. Handy was killed, so it was reported, on the 15th day of November, by being thrown from his buggy.
    On the 24th of November, 1884, this horse w’as driven into town by Charles E. Handy, defendant’s brother, and was. left by him at the stable of "William H. Bristol, on Walnut street, and was taken from there by proceedings in replevin in this case.
    On one occasion I was pressing Mr. Handy pretty hard to pay up his bill. He was a little irritated, and said : “ Dammit, if you are afraid you won’t get your pay you can sell the horse,” I answered : “ Oh no, Mr. Handy, I would not do that.”
    Plaintiff’s Account.

      “ Exhibit A.”

    Mr. T. B. Handy, Dr.

      To R. Seebaum.
    1883.
    August 1 — To stabling during July..................$ 6 00.
    “ 4 — To horseshoeing........................... 2 00
    “ 25 — To a load of sawdust....................... 3 00
    September 1 — To stabling during August.............. 2 60

      September 28 — To cash for bringing back horse and
    buggy neat............................... 5 00
    October 1 — To stabling during September........... 7 20
    “ 1 — To°horseshoeing............................ 5 00
    November 1 — To stabling during October.............. 12 55
    w 1 — To two loads of sawdust.................. 6 00
    December 1 — To Stabling during November........... 11 00

      “ 1 — To horseshoeing............................. .2 00
    1884.
    January 1 — To stabling during December........... 13 60

      “ 1 — To horseshoeing............................. 3 75
    February 1 — To stabling during January.............. 18 75

      “ 1 — To horseshoeing............................. 3 50
    March 1 — To stabling during February............ 13 75

      “ 1 — To horseshoeing............................ 6 30
    April 1 — To stabling during March............... 12 90

      “ 1 — To horseshoeing ........................... 2 00
    May 1 — To stabling during April.................- 3 60
    “ 1 — To horseshoeing............................. 2 00
    June 1 — To stabling during May.................. 1 20
    July 1 — To “ “ June................. 80
    August 1 — To “ “ July ................. 40
    September 1 — To “ “ August.............. 10 65
    October 1 — To “ “ September ......... 20 00

      “ 1 — To repairing harness....................... 45
    November 1 — To stabling during- October.............. 20 00
    $197 10
    Upon this state of the proof the court, among other things, charged the jury:
    “ If you should find that it was the uniform manner between these parties, that Mr. Handy would bring this horse to the stable, leave him there for a day, or part of the day, and take him away again, bring him the next day, or probably the next two or three days, without any definite arrangement as to time, there would arise an implied contract, when Mr. Handy took the horse away under these circumstances, that he would return him again. In other words, there would not be under these circumstances, such a voluntary parting with the possession of the hoi’se on the part of the plaintiff, in the case, as to work a waiver of the lien under these circumstances.”
    This was excepted to at the time, as were, also, other parts of the charge founded on substantially the same view of the law, and are, therefore, not inserted here. Nor, is it necessary to set forth the instructions asked and refused, as they are all contradicted by the part of the charge above given.' The case turns upon this part of the charge.
    The judgment was reversed on error by the circuit court, and remanded for further proceedings.

      Burch & Johnson, and H. Marckworth & J. H. Marckworth, for plaintiff in error.
    Under the provisions of the Revised Statutes, (sections 3212 and 3213), a livery stable keeper who has furnished feed and care for a horse, has a lien therefor, which is not defeated by the voluntary delivery of the possession to the owner in the ordinary course of business.
    At common law, a livery stable keeper had no lien; 2 Kent’s Com. 630, note d. “ By passing the statute in question, the legislature gives the livery stable keeper a lien, notwithstanding the fact that he does not at all times have possession of the animal.” 10 Law Bull. 386. The legislature of Pennsylvania passed a law almost identical with ours; Penn. Laws, 1807, p. 162. The Supreme Court of that state, in Young v. Kimble, 23 Pa. St. 195, construes that statute in harmony with our view. The Tennessee statute, which is, in effect, the same as ours, has been similarly construed. Caldwell v. Tutt, 10 Lea 258.
    We also call the courts attention to the following cases, Munson v. Porter, 63 Ia. 453; Smith v. Morton, 60 N. H. 511.
    The act being remedial, must be liberally construed. Eckert v. Donahue, 9 Daley, (N. Y.) 214; Swan’s Statutes, 615.

      J. F. Baldwin, for defendants in error.
    Defendants in error controvert the proposition of plaintiff in error, and claim that a livery-stable keeper, who has become entitled to a lien on a horse for food or care under the provisions of secs. 3212 and 3213 of our Revised Statutes, loses his lien when he voluntarily delivers the possession "of the horse to the owner, without any agreement for its réturn, provided the horse is never voluntarily returned.
    Now, what is a lien ? Hammond v. Barclay, 2 East. 227; Gladstone v. Bierly, 2 Merivale, 401; Bouvier Law Dic., title— Lien; Smith’s Mer. Law, title — Lien, 688; 2 Kent’s Com. 634. Possession is necessary to a lien. 2 Kent’s Com. 638, 639; Smith’s Mer. Law, 697; 2 Dane’s Abr. 262; Sweet v. Pym, 1 East. 4; Lickbarrow v. Mason, 6 East. 21; Haywood v. Warring, 4 Camp. 291.
    In adopting our statute in 1873, the legislature did not undertake to define the word “ lien,” but used it as if it had a settled and well understood meaning. It was well understood in Ohio, that possession of a chattel was essential to a lien thereon. Jordon, Ellis & Co., v. James, see 5 Ohio, 89. The legislature, therefore, must be presumed to have used that word according to its legal meaning, then well understood and established in this state.
    Moreover, the use of the word “ retain,” in sec. 3213, shows affirmatively that the legislature presumed the stable keeper to be already in possession. For how could he retain that of which he was not possessed?
    When Seebaum gave to Handy the possession of the horse, the last time he was at the stable, he must have decided to look to Handy personally for the amount of his bill, and not to the security of the horse. Vinal v. Stafford, 139 Mass. 126; Perkins v. Boardman, 14 Gray, 81; Papineau v. Wentworth, 136 Mass. 543; Forth v. Simpson, 66 Eng. Com. Law, 680.
    There was no implied contract. When a person has patronized a stable or a hotel for many years, there is a probability that he will continue to do so, and this probability of future patronage constitutes the “good will” of the stable or the hotel; but it was clearly erroneous to say that this probability amounts to an “implied contract” or any duty or obligation to continue the patronage.
   Minshall, C. J.

Whether the instructions of the court to the ]ury stated the law applicable to the case made by the tendency of the proof, depends upon the nature and character of the lien given by sections 3212 and 3213, Rev. Stats., to a person who furnishes food and care for any horse ” by virtue of an agreement with the owner, .to secure the payment of the same.

These sections are as follows :

Sec. 3212. A person who feeds or furnishes food and care for any horse, mare, foal, filly, gelding, mule, or ass, by virtue of any contract or agreement with the owner thereof, shall have a lien therefor, to secure the payment of the same, upon such animal.”

Sec. 3213. A person feeding or furnishing food and care for any horse, mare, foal, filly, gelding, mule, or ass, shall retain such animal for the period of ten days, at the expiration of which time, if the owner does not satisfy such lien, he may sell such animal at public auction, after giving the owner ten days’ notice in a newspaper of general circulation in the county where the services were rendered; and after satisfying the lien and costs that may accrue, any residue remaining shall be paid to the owner.”

It seems to us very clear upon a view of these sections, that the intention of the legislature was, in enacting them, to give to the person furnishing such food and care a lien upon the animal as a security for the food furnished and care bestowed, with the incidents of a lien at common law in analogous cases. The first section gives the “ lien,” and the next one provides the mode of maintaining and enforcing it: The “ person ” shall “ retain ” the animal for ten days, and if, at the expiration of that time, the owner does not satisfy the lien,- he may, on giving the requisite notice, sell it at public auction.

The nature and incidents of a common law lien of this kind are well settled : It is a right to retain property until certain claims against it are satisfied; and possession is not only essential to its creation, but also to its continuance. Where the party voluntarily parts with the possession of the property upon which the lien has attached, he is divested of his lien. 2 Kent Com. 638; Smith’s Mercantile Law, 697; Sweet v. Pym, 1 East. 4; Lickbarrow v. Mason, 6 East. 21; Hammond v. Barclay, 2 East 227 ; Jordan v. James, 5 Ohio R. 89, 98. In McFarland v. Wheeler, 26 Wend. 473, it is said, that “ the very definition of a lien as the right to retain, indicates that it must cease when the possession is relinquished. This principle, so clearly founded in reason and so congruous to public utility and the convenience of trade, is supported by the uniform testimony of the decisions.”

The right to sell the animal upon notice and apply the proceeds to satisfying the lien, does not affect its classification with similar common law liens; it only gives a plain and simple remedy for enforcing the lien.

The evidence .tended to show, and the charge of the court was applicable to, a case where the owner of a horse temporarily leaves it with the owner of a feed-stable to be fed and cared for; there is no definite arrangement as to time; it may be for less or more than a day; this depends upon the convenience of the owner who resides out of the city; when he wishes to return home, the horse is delivered to him, and the feed and care is charged to him in an account by the keeper. There is no express agreement at any time that the horse is to be returned Now how, under these circumstances, it can be inferred, as the court charged the jury, that there is an implied contract on the part of the owner to return the horse, we are unable to see. The owner is, for the time, simply a customer of this particular feed-stable. The keeper may expect that when the owner again comes to the city he will again patronize him by sending his horse to his stable. But when this may be, he can neither rightfully demand to know, or expect to be informed. How would the owner, as a matter of law, violate any agreement for which damages could be recovered, if he should, in the meantime, conclude to change his patropage and never return the horse. If it were otherwise then it might be inferred that every customer of a store is under an implied contract to continue to deal with it. If he were in debt for goods previously sold, he might be under a moral obligation not to withdraw his custom until he had- discharged what he owed, but there would be no legal obligation to that effect, arising from the circumstances.

The lien provided by this statute does not arise upon contract., True, the fee.d must be furnished under an agreement with the owner, but where this has been done’ the statute creates the lien in favor of the party furnishing it, irrespective of any agreement therefor to that effect. The lien given is a right to retain the property, that is its possession, as a security for the debt, and if this right is not insisted on when the horse is called for, the owner can not be said to violate any agreement in not afterward returning it; for he has no notice of an intention on the part of the keeper to assert a lien, when the property is voluntarily delivered to him ; and, therefore, any supposed agreement to return could only relate to a thing of which he has no notice, and, which in fact, has no existence.

Therefore, in a case like the one to which the court applied its charge, the person furnishing the feed and bestowing the care must, if he would assert a lien on the animal therefor, do so by retaining its possession when called for by the owner, unless his charges are p>aid. If he do not, and voluntarily deliver the animal to the owner, he must be held to have waived his right to assert a lien under the statute, and to be satisfied with the personal liability of the owner for the charges. Such is the rule in common law liens based on possession, and we see no reason why the rule should not apply here as well as there. It is more in harmony with the general policy of our statutes “ which always strive to secure public registration when possession is not given and retained, and which expressly provide for such registration -when the/ in terms create a lien not depending on possession.” Holmes, J., in Burton v. Frye, 139 Mass. 126, 130. See also the following cases : Perkins v. Boardman, 14 Gray, 481; Papinsau v. Wontworth, 136 Mass. 543; Forth v. Simpson, 66 Eng. Com. Law, 680.

What should be the rule in cases where the animal is placed by the owner with a person to be fed and cared for, not temporarily — the horse being ordinarily kept at Tome or somewhere else by the owner — but, permanently for.some time either definite or indefinite, presents a different question. In such case where the owner is allowed to use it, its voluntary delivery to him for such purpose, might be said to imply a contract to return the animal, and a failure to do so would be such a fraud as to estop the owner from setting up that the lien had been lost by such voluntary delivery. But this is not the case before us, and we express no definite opinion upon it at this time.

We have examined the cases cited by counsel for the plaintiff in error, but fail to find that they give any considerable support to his view of the case.

The case of Young v. Kimball, 23 Penn. St. 195, is simply to the effect that where the owner forcibly or clandestinely obtains possession of the subject of the lien, the lienor’s right is not impaired by such deprivation of the possession. Munson v. Porter, 63 Ia. 453, rightly holds that demanding more than is due, will not entitle the owner to replevin the property without paying what is due. And Eckland v. Donahue, 9 Daly, 214, holds that replevin of the property cannot be had by bi’inging it before the defendant had time to make out his bill and give notice of his intention to perfect a lien, as required by statute.

The cases of Caldwell v. Tutt, 10 Lea. (Ten.) 258, and of Smith v. Marden, 60'N. H. 509, would tend to support the case where animals are, for the time being, permanently left with a person to be fed and cared for, with the right in the owner to use them. In such cases it is held that the lien is not thereby affected as against a creditor of the owner. The possession of the animal by the owner under such circumstances is not regarded as terminating the bailment, the pos•session being constructively that of the bailee, and under an implied contract to return the animal as soon as the use is at an end. This seems somewhat plausible, but whether sound or not, we do not, for the reasons before stated, now determine.

Judgment affirmed.


author: Dickman, J.

text:
    The State v. Kinninger.

      Change of judicial subdivisions.

    The act of March 21,1887 (84 O. L. 229), to'repeal sec. 1 of “an act to change the sub-divisions in the second judicial district, and to provide for the election of an additional judge in the first sub-division,” passed March 13, 1868 (65 O. L. 25), not having been passed by a concurrence of two-thirds of the members elected to each house, is invalid, and ineffectual to change Montgomery county from the first sub-division to the second sub-division of the second judicial district.
    (Decided November 19, 1889.)
    Mandamus.-
    The case is sufficiently stated in the opinion of the court.

      Brotherton & Dustin, for the relator.

      John A. MoMahon, and J. M. Sprigg, for the defendant.
   Dickman, J.

This is an application by the relator, Charles W. Dustin, an elector of Montgomery County, for the allowance of a writ of mandamus against Joseph E. Kinninger, deputy sheriff of that county, to compel him to give notice and issue a proclamation according to law, in the name of the sheriff, who is beyond the jurisdiction of this court, for the election of a common pleas judge of the second judicial district, in the second subdivision thereof, at the election to be held on the fifth day of November, 1889. By Article XI, Section 12, of the constitution, under which the state is apportioned for judicial purposes, it is provided that, “The counties of Butler, Preble, and Darke, shall constitute the first subdivision; Montgomery, Miami, and Champaign, the second; and Warren, Clinton, Greene and Clarke, the third sub-' division, of the second district; and, together, shall form such district.” By section one of an act passed March 13, 1868, “To change the subdivisions in the second judicial district, and to provide for the election of an additional judge in the first subdivision,” (65 Ohio L. 25), the counties of Butler, Preble, Montgomery and Darke are made to constitute the •first subdivision; and Champaign and Miami, the second subdivision of the second judicial district. On June 12, 1879, •an act was passed, to provide for the election of an additional judge of the court of common pleas in the second subdivision of the second judicial district (76 Ohio L. 156); the first election of such additional judge to be on the second Tuesday •of October, 1879; his term of office to commence on the first Monday of November, 1879, and to continue five years. With the view of effecting a change in the first subdivision, and of restoring Montgomery County to the original second • subdivision of the district, an act was passed March 21, 1887, (84 Ohio L. 229), enacting, that section one of the above entitled act, passed March 13, 1868, be repealed.

By virtue of the aforegoing legislation, it is claimed by the relator, that Montgomery County is now in the second subdivision of the second judicial district, and that the deputy .sheriff should be commanded to give the notice, and issue proclamation for the election of a judge, as asked in the petition. The answer of the defendant denies that Montgomery County is a part of such second subdivision, but avers that it is a part of the first subdivision. It alleges that the law under which the change is claimed by the relator to have taken place, to-wit: the law of March 21, 1887, to repeal ■section one of the act of March 13, 1868, was not passed by a concurrence of two-thirds of the members elected to each house, but by a majority only of the members elected, as shown by the journals of the house and senate. To the .answer of the defendant the relator has filed a demurrer. The ■record presents the question, whether the act of March 21, 1887, was passed by a constitutional majority, and furthermore, whether after there has been a change by a two-thirds vote of each branch of the general assembly, from the judicial apportionment provided by Article XI of the constitution to :a new legislative apportionment, there may be a change from •such legislative apportionment to one different from that designated in the constitution, or to the constitutional apportionment itself, without the concurrence of two-thirds of the .members elected to each house.

It is evident that the apportionment for judicial purposes, was not designed to continue without change or modification,, during the life of the constitution. With the increase of population, and the formation of new counties, it was contemplated, that the districts of the court of common pleas might be increased and changed, and the subdivisions thereof changed, to meet the public convenience, and facilitate the efficient administration of justice. As provided by section 15, Article IV of the constitution, The general assembly may increase or diminish, the number of the judges of the supreme court, the number of the districts of the court of common pleas, the number of judges in any district, change the districts, or the subdivisions thereof, or establish other courts, whenever two-thirds of the members elected to each house shall concur therein.” The concurrence is required, it will be observed, not of a quorum, but of two-thirds of the members elected to each house of the legislature. But while changes' were contemplated, this section wisely ordains, that the constitutional scheme of judicial apportionment shall not be subjected to the will of bare majorities, whether partisan or otherwise, whereby the judicial system may lose stability, and be-weakened in its hold on the public confidence. And this policy has been uniformly adhered to since the adoption of the-constitution. In changing the districts of the court of common pleas, or the subdivisions thereof, it has been generally recognized by the legislature -as the established constitutional-rule, that such change could not be effectual, without the sanction of a two-thirds majority.

In our judgment, when the judicial subdivisions marked out in Article XI have been constitutionally changed, the new apportionment becomes a permanent substitute for the original, until again changed by the concurrence of two-thirds of the members elected to each house of the general assembly. When the judicial apportionment named in the constitution is-once changed, in whole or in part, in the manner provided by the instrument itself, the new arrangement is determined and fixed until altered by the prescribed rule. What is that rule ? It is plainly laid down in section 15, of Article IV, above-•cited. Without ambiguity, the legislature is thereby authorized to change the subdivisions of the several judicial districts— the number of subdivisions in each district being preserved— whenever the requisite number of members assent to the change. A judicial apportionment having been made, which, in the future, might demand revision or alteration from time to time, the constitution has left it to the wisdom and discretion of the general assembly to incorporate with it the needed changes, but has provided a safeguard in the requirement of a two-thirds majority, as it has required that either branch of the general assembly may propose amendments to fundamental provisions of the constitution, only when the same shall be agreed to by three-fifths of the members elected to each house.

It is contended, however, in behalf of the relator, that although the act of March 21,1887, to repeal section one of the .act of March 13, 1868, was not passed by a majority vote of two-thirds, yet, that the act restores Montgomery County to the original second subdivision, and thus leads the way back to the normal or constitutional condition, and hence should not require more than a mere majority vote. But, to repeal section one, by a majority vote merely, would, in our view, be to change in plain violation of section 15, Article IV of the constitution, the subdivisions of the second judicial district, the first subdivision of which, composed of Butler, Preble, Darke and Montgomery counties, has stood for more than twenty years. The first subdivision as now constituted, it is to be presumed in the case at bar, was created by the concurrence of the requisite number of members elected to each house of the general assembly, and to destroy its unity, would certainly be a change of the most marked and decided character. The question is asked, what would become of Montgomery County, were section one repealed even by a majority vote of two-thirds, but with no further legislative action, if that county were not allowed to take its original place in the constitutional arrangement of judicial subdivisions. Such a case is not before us for consideration. But, it is not to be anticipated that the legislature would ignore its trust, or abandon its functions, by failing or neglecting to assign that county to-some other judicial subdivision.

The provision of section 15, Article IV of the constitution,, for changing judicial subdivisions, is intended to be uniform in its operation. But, such uniformity will not be attained by 1. iding, that in a change from the constitutional apportionment a vote of two-thirds of each house shall be necessary, but shall not be necessary in a change from a judicial apportionment by the general assembly, in the event that such change would work, u return to the original constitutional arrangement. There is not such inconsistency or incongruity in the operation of section 15, as that one judicial subdivision can be changed only by a majority vote of two-thirds, while a, simple majority vote shall be adequate to change another subdivision.

We find nothing in the case of State v. Wright, 7 Ohio St. 333, cited in argument, that militates against the views which we have presented. In that case a clause of section 15 of Article IV of the constitution came under consideration, and it, was decided that, the constitution of' the state has not limited the power of the general assembly to abolish courts created by the legislature, nor its power to vacate the office of judges of such courts. But the case also recognizes the doctrine, that courts established by the constitution itself exist independently of the general assembly, and can not be abolished by it. In-applying to the case in hand, that portion of section 15, which provides that, the general assembly may “ establish other courts, whenever two-thirds of the members elected to each house shall concur therein,” Brinkerhoff, J., says : “ It is not difficult to conceive of very good reasons why the constitution should require a vote of two-thirds for the passage of an act establishing a new court, increasing the number of public functionaries, and possibly adding thereby to the public burdens, while the repeal of such act might be safely confided to the discretion of a simple majority.” It is obvious, if the act repealing the-law that established the new court, had been enacted for the-additional purpose of establishing another court in its place, a less number of affirmative votes than two-thirds of each house. would have been insufficient for its passage. And so in reference to the constitutional rule that, subdivisions of judicial districts can be changed only when there is a concurrence of two-thirds of the members of each house, although generally it is sufficient for the enactment and repeal of laws if a majority of the members elected to each house concur, yet, when, the design and effect of such repeal is, clearly, to change judicial subdivisions, the constitutional requirement of a two-thirds majority vote must be paramount,- and govern the action of the-general assembly. The rule of two-thirds having been expressly enjoined by the fundamental law, it can not be dispensed with by the legislature.

Writ refused.


author: Williams, J.

text:
    National Exchange Bank v. Cunningham.

      Easements — Access to buildings.

    1. When the owner of an entire estate, makes one part of it visibly ’’ependent for the means of access, upon another, and creates a way for its benefit over the other, and then grants the dependent part, the other part becomes subservient thereto, and the way constitutes an easement appurtenant to the estate granted, and passes to the grantee as accessorial to the beneficial use and enjoyment of the granted premises.
    2. The owner of a lot situated at the corner of intersecting streets fin a city, erected thereon a three-story building covering the whole of the lot. A stairway leading from the principal street to the second story of the building, was constructed in the corner room of the first story. At the landing of the stairway, and connected with it, a hall was made, extending across the second floor of the room next to the corner room, and connecting with the second story of the next adjoining room. The rooms on the second story were intended for offices, and to adapt them to such use, doors were made opening into them from the hall. Another stairway was also put in, running from the hall to the third story. The stairway leading from the street to the second story was, and is, the only means of access to the hall above, and to the rooms opening into it, and the use of the stairway was, and is, necessary to their proper use and enjoyment. While the premises were in this condition the owner sold and conveyed a part thereof described by metes- and bounds, which included the hall connected with the landing of the stairway leading from the street, and the office ¡rooms on the second floor opening into the hall, which had no means of access except through the hall, and by the stairway. The purchaser, with the knowledge of his vendor who retained the corner room in which was the stairway, immediately entered upon, and continued the use of the stairway as his only means of access to the hall and connecting rooms purchased by him.

      Held: That by the conveyance, a right to the use of the stairway, passed to the purchaser, as an easement appurtenant to the premises conveyed.
    (Decided November 19, 1889.)
    Error to the Circuit Court of Seneca County.
    The original action was brought in the Court of Common Pleas of Seneca County by Edward J. Cunningham v. The National Exchange Bank of Tiffin, Ohio, and William H. ■Grapes.

    The petition charges that the bank, which is a corporation ■organized under the National Bank Act, became the owner of a lot sixty feet square at the corner of Washington and Market streets in the city of Tiffin, and erected thereon a three story brick building covering the whole of the lot. The first story consisted of three business rooms fronting on Washington street and one fronting on Market street. The corner room occupied by the bank as its banking house has a front of twenty-four feet on Washington street and extends back along Market street a distance of forty-five feet. The room immediately in the rear of the bank, fronts on Market street fifteen feet and has a depth of twenty-four feet. The other two rooms which are used for store rooms, each have a frontage of eighteen feet on Washington street and extend back the full ■depth of the lot.
    . The petition then alleges “ that upon the twenty-four feet front, so fronting on Washington street, and north of, and adjoining the south side thereof, the bank, in erecting the building, erected a stairway leading from Washington street to the second floor of the building; and also then erected a stairway, upon the same line, from the second to the third floor of the building, and also then made a hall upon the second floor leading east from the stair landing to the east end •of the. building; also another hall upon the second floor leading south from the stair landing to the room upon the second floor above the south store room, and also then erected another stairway from the hall last mentioned, leading from the •second floor to the third floor of said building, and also then divided the second floor into eight or more rooms and connected the rooms with the halls by means of doors. That the second floor of the building so made by the bank now is, and ever since the erection of the building has been, used and occupied under the lease of the bank, and its grantees, for offices; and during the same periods, the stairway leading from Washington street to the second floor has been used by those occupying the offices; also by all the comers and goers into the building; and was during all of said time, and still is, the only way to re'ach the offices upon the second floor, and also the stairway leading to the third floor. That the stairways • and the halls, also the right to use each thereof, are privileges and appurtenances belonging to the said building and to each and every part thereof. That on the 11th day of January, A. D. 1867, and while the building was unfinished and incomplete, the bank in consideration of the sum of thirteen thous- and and five hundred dollars, to it paid by the defendant, William JEL Grapes, bargained and sold and agreed to convey to the said Grapes, in fee simple, the following part of the. said lands and tenements, upon which the said building then stood, together with all and singular the rights and privileges and appurtenances to the same belonging, including the right to use and enjoy for himself, his heirs and assigns, forever, the said stairways and halls ; being all of the lot, and building upon it, except so much as are within the boundaries of that portion on the corner having a frontage of twenty-four feet on Washington street, and running back a like width the entire depth of the lot on Market street. That as a part of the said bargain and sale and agreement to convey, and concurrent therewith, the bank, for the consideration last aforesaid, agreed in writing with the said Grapes, to finish and complete the building in the manner and form afore described, which was so done by the bank, on or about the first day of April, A. D. 1867, and since then no change or alteration in said building has been made. That on the first day of April, 1867, the said'Grapes took possession of the premises so conveyed to him, and occupied the store room himself, for more than one year next thereafter, and during the same period the other store room, also the rooms upon the second and third floors, were occupied by different persons, under leases from the said Grapes, to whom they accounted for the rent; and that during the time aforestated, the stairways and halls were used by the said persons, and by all others who visited the rooms above the store rooms so conveyed to the said Grapes, and without the objection of the bank, or notice, or knowledge that it claimed an adverse right. 'That on the 14th day of January, A. D. 1868, the said Grapes, in considerttion 'of the sum of sixteen thousand dollars to him paid by the plaintiff, bargained and sold and agreed to convey to the plaintiff, in fee-simple, the same premises, together with the same rights, privileges. and. appurtenances, which the bank bargained, sold and agreed to convey to the said Grapes, including the right to use, forever, the said stairways and halls. That on the 14th day of January, A. D. 1868, the plaintiff entered into the possession, of the premises so agreed to be conveyed to him, and ever since has had, and still has, through himself, and his tenants, such possession, together with the open and notorious, and until recently, the uninterrupted use and enjoyment of the said -stairways and halls, and with the knowledge and acquiescence of the bank, and without demand by it for compensation therefor, or notice from it of an adverse right. That on the 11th day of April, A. D. 1867, the bank intending to fully execute its-agreement to convey to the said Grapes, in fee simple, the said premises, and also the said right to use and enjoy, forever, the stairways and halls, did execute and deliver to the said Grapes its deed, conveying to him,-in fee simple, so much of the south part of the noi'th third of said in-lots sixty-six and sixty-five-as is bounded by the lines aforestated, together with the privileges and appurtenances thereunto belonging, but unintentionally, and through mistake, omitted to grant in the said deed,, in express terms, to the said Grapes, and his heirs and assigns, forever, the right to use and enjoy the said stairways and halls. That on the 14th day of January, A. D. 1868, the said Grapes, intending to fully execute his agreement to convey to the plaintiff, in fee simple, the said premises, and also the right to use and enjoy, forever, the said stairways and halls, did execute and deliver to the plaintiff, his deed, conveying to the plaintiff, in fee simple, the same premises described in the deed of the bank to the said Grapes, together with the appurtenances thereunto belonging, bnt unintentionally, and through mistake, omitted to grant in the said deed, in express terms, to the plaintiff, and his heirs and assigns, forever, the right to use and enjoy the said stairways and halls. That the bank claims an estate and interest in the premises so bargained and sold and agreed to be conveyed by it to said Grapes, and by the said Grapes to the plaintiff, adverse to the plaintiff, and his estate and interest therein. That the bank claims that the plaintiff has no right to the use of the stairway leading from Washington street to the second and third floors of the building, or to the east hall on the second floor, and threatens, and is about to shut up and close the north end of the hall upon the second floor, which leads south from the stair landing upon the second floor, and thereby prevent the plaintiff and his tenants from using the said stairways and halls, alsp the second and third floors of that part of the premises so agreed to be conveyed to the said Grapes and the plaintiff, and will so do, to the irreparable injury 'of the plaintiff and his said premises, unless restrained by the order and judgment of this court. The plaintiff prays that the bank and each of its officers, servants and agents may be enjoined from any and all interference with the said rights of the plaintiff, from closing up or obstructing, in any manner,'the said stairways or halls, or either thereof, from preventing or attempting to prevent the plaintiff, or those claiming under him, also all other persons, from the full, free and perfect use and enjoyment of the said stairways and halls, to go to and from the said second and third floors of the plaintiff’s said premises.”

      The answer of the bank in substance admits that it owned the lot and erected the building, as alleged in the petition, but avers that the hall leading southward from the landing of said stairway in said bank building was only made for temporary purposes; and that the right to use said stairway or the entrance into said south hall therefrom, are not now and have never been intended to be an)'- privilege or appurtenance belonging to said south building nor any part thereof, which Grapes and plaintiff during their respective occupancies well knew and acknowledged. The answer denies that on the 11th day of January, 1867, or at any other time, the defendant sold or agreed to sell or convey to Grapes, or any other person, the said stairway, or the use thereof, as a privilege or appurtenance belonging to the said south rooms, or ever included the right to use and enjoy for himself, or his heirs or assigns, forever, the said stairways and halls to said Grapes, in any conveyance or contract whatever. It denies that said stairway was ever used by the lessees of either Grapes or Cunningham without objection, or notice, or knowledge, on the part of Grapes or plaintiff of the adverse right and claim of the defendant. It denies that Grapes sold, or agreed to sell or convey, to plaintiff any right or claim in or upon said stairway as an appurtenance or otherwise to said south building. It further denies that the plaintiff, or his lessees, had uninterrupted use and enjoyment of said stairway without demand from the defendant of any compensation for such use and occupancy, or any notice to plaintiff of the adverse right and claim by the defendant; and avers “ that the plaintiff promised and agreed to pay the defendant for the use of said stairway for his tenants in said building, in the second and third floors thereof, the sum of--dollars per year, and under such agreement, paid to the defendant, for such use and occupation of said stairway, at two or three different times, and at said payments for several years at a time, and about the-day of January, 1880, made an agreement with the defendant to pay to him for the use of said stairway for said building the sum of fifteen dollars per year for each and every year that he should use the same.”

      The defendant Grapes, made default.
    The plaintiff by reply, denied all the allegations of new matter in the answer. The case was tried at the September term, 1883, and a decree having been rendered for the plaintiff, the bank appealed to the circuit court, where, at the October term, 1885, the cause was tried, and at the request of the defendant that court separately stated its findings of fact and conclusions of law, which are as follows:
    “ The parties appeared with their attorneys and this cause was heard on the petition of the plaintiff, the answer thereto of The National Exchange Bank, of Tiffin, Ohio, the reply of the plaintiff, and the testimony.

      “ In consideration whereof, and upon the request of The National Exchange Bank, that the court should state the conclusions of fact separately from the conclusions of law, the court finds as conclnsions of fact from the testimony, that The National Exchange Bank, of Tiffin, Ohio, duly became a corporate body as averred in said petition, and that it was located and doing its banking business in Tiffin, Seneca County, Ohio.

      “ That in the year 1866, the said bank purchased the lands first in the petition described, and immediately thereafter proceeded to, and did, erect thereon the said building in the petition described, and did complete the same in manner and form therein described.
    “ That to obtain the proper location for a banking room, the said bank was compelled to buy the whole of the said lot of land, on which the building was so erected, and that the two rooms, on the south of the banking room of the defendant, were so erected to be immediately sold.

      “ That the building was built of brick, three stories high, and divided into three separate business rooms, extending east and west and fronting west on Washington street of said city of Tiffin, the north room thereof being built twenty-four feet wide, with a stone front, on Washington street, and the middle and south rooms thereof each eighteen feet wide.
    “ That said business rooms were separated by solid brick walls, extending from the cellar to the roof of said building,

      except that an opening was left in said wall, separating said north from said middle room, in the second story of said building, for a hall, extending south through the said middle room, and to the said south room, as hereinafter more particularly set forth
    “ That the first story of the north' room of said building, was intended for a banking room, and of the middle and south rooms for business or store rooms, and that said rooms always have been and yet are so used.
    “ That in constructing the building, on the premises described in said petition, and the banking room on the north side thereof, a stairway was made, a stairs put up on the north side of and against the south brick wall of the banking room, above mentioned, and wholly within the banking room, and leading from Washington street to the second floor or story of said banking room, and also a further stairway was made and stairs put against the same side of the same dividing brick wall, of said banking room, commencing some feet east from the top, or landing, of the stairs first above mentioned, and leading up to the third floor, or story, of the banking room.

      “ That rooms, or offices, are made on the second floor, or in the second story of the banking room, and doors opened into them from the hall, or passage-way, formecl by making said rooms, and the said stairways above mentioned, and a way leading from the one into the other.

      “ That between the top, or landing, of the first stairs and the foot of the second stairs, above mentioned, an opening was left, or made, in the brick, or south wall, above mentioned, of the banking room, and which separates it from the remainder of the brick building, from which said opening a hall was made, extending south to the south wall, or side, of the building, and which hall divides the second floor, and story, of the two store rooms of said building, south ofthe said banking room, into back and front rooms, or offices, and from which hall doors open into said front rooms, or offices.
    “ That the third story of the two store rooms, south of the banking room, is all in one room.

      “ That in constructing the building, the stairs above mentioned, and the hall last above mentioned, were the only way provided to get to the rooms on second floor, or in the second story, of the said two store rooms; except that a stairway and stairs were'put up in both of the store rooms, leading from the first floor to the second floor of the back rooms of each of them, and thence a stairway and stairs were put up which conducted up to the third story or room over the two store rooms, but that in constructing the brick building, no other way was provided to get to the front rooms, or offices on the second floor, or story, of the said store rooms than the said stairway and hall above mentioned.
    “That on the 11th day of January, 1867, when said building was finished and ready for occupancy, the said bank sold and conveyed, in fee simple, to .the defendant, William H. Grapes, for the sum of $13,500.00, the said middle and south rooms of said building and premises above mentioned, and which are described in the deed of conveyance therefor as follows:
    “ So much of the south part of the north third of in-lots numbered sixty-six (66) and sixty-five (65), in the first ward of the city of Tiffin, in Seneca County, Ohio, as is bounded by the following lines:
    “Beginning therefor at the northwest corner of the middle third of the said in-lot No. 66, which point is also the northwest corner of the building of Charles M. Yerk on said middle third of said lot No. 66, thence northerly on and along the west line of said in-lot No. 66 to the south side of the stone column at the southwest corner of the new bank building on said north third of said lot No. 66, thence eastward and northerly around said stone column to the center of the brick wall on the north side of the room adjoining said new building or room on the south side thereof, thence easterly on and along the center line of said brick wall to the west line of that portion of in-lot'No. 65 aforesaid now owned by Philip Emich, thence southerly on and along said west line of said Philip Emich’s to the north line of said Charles M. York on the north side of said middle third of said lot No. 66, thence on and along said north line westwardly to the place o£ beginning, be the same more or less. And said description, in said deed, was and is immediately followed by the words, and all the estate, title and interest of the,said National Exchange Bank, either in law, or in equity, of, in and to said premises, together with all the privileges and appurtenances to the same belonging.’
    “ That afterwards, on the 14th day of January, 1868, the said Grapes sold and conveyed, in fee simple, to the said plaintiff, the same part of the said building and premises last above described, with the same description and like covenants.
    “That on May 3, 1869, and again on January 31, 1870, the plaintiff paid to the bank the sum of $12.50, which said bank demanded of him on account of an alleged higher rate of insurance the said bank had to pay because of the opening for said south hall, in said brick wall, separating the banking' room from the rooms conveyed to said Grapes and to the plaintiff.
    “That the free and undisturbed use of the said stairway-leading from Washington street to second floor of said building, and the opening at the top landing of said stairway in the wall, separating the said parts of said building, owned respectively by the plaintiff and the bank, are necessary for the proper use and enjoyment of that part of said building, so conveyed by said bank to said Grapes, and by said Grapes, to-to the plaintiff, as constitute the front offices of said portion 'so sold and conveyed, and that such use and enjoyment of said stairway, and said opening in said wall, is the only means of access to the said offices, on said second floor of the plaintiff’s part of said building, and was used with the knowledge of said defendant from the 11th day of January, 1867, until about the time of the commencement of this action.
    “That on or about the 1st day of December, 1880, the bank was about to close the opening in said wall, at the entrance of said south hall, in the second -story of said building, so as to prevent the usp of said stairway to i-each the second and third floors of that part of said building so conveyed by said bank to Grapes, and by Grapes to the plaintiff

      “ And the court, from the foregoing conclusions of fact, find, as conclusions of law, that-the said stairway, leading from said Washington street to the second floor of said building, and the opening in said wall, at the top landing of said stairway, forming the entrance of said south hall in the second story of said building, are privileges and appurtenances belonging to that part of said building and premises, so conveyed by said bank to said Grapes, and by said Grapes to the plaintiff; and that the plaintiff, his heirs and assigns, have and hold the right to the free and undisputed use and enjoyment of the said stairway leading from Washington street to the second floor of said building, and of the entrance to the said south hall thereof.

      “ It is therefore ordered, adjudged and decreed, that the defendant, the National Exchange Bank, of Tiffin, Ohio, and all persons Claiming by, through, or under it, be and hereby are perpetually enjoined from closing up the said opening in said wall, at the top landing of said stairway, forming the entrance to the said south hall, in the second story of said building, and from closing up or obstructing the said south hall, or the way leading thereto, in any manner whatever, or doing or permitting to be done, any act whatever to prevent the free and undisturbed use of the said stairway leading from Washington street for that part of said building and premises, so by it conveyed to said Grapes, and by said Grapes to said plaintiff”
    To which findings and conclusions of law, and jundgment, the bank excepted, and to obtain the reversal of the judgment prosecutes error to this court.
    IV. L. Brewer, for plaintiff in error.
    No brief for defendant in error.
   Williams, J.

The only question raised upon the record, is whether the facts found by the circuit court are sufficient to warrant the judgment it rendered. The case made by those facts is. in substance, that in the plan and construction of the building erected by the bank, which covered the entire lot owned by it, a stairway, leading from Washington street to the second story of the building, was constructed in the corner room, now occupied and owned by the bank. At the landing of this stairway, and connected with it, a ball was made, extending across the second floor of part of the premises after-wards conveyed by the bank to Grapes, and by him to the plaintiff, and connecting with the second story of the balance of the premises so conveyed. The rooms on the second story of the premises now owned by the plaintiff, were made into offices, and doors opened into them from the hall. Another stairway was also put in, running from the hall to the third story. The stairway leading from Washington street to the second story, was, and is, the only means provided for access to the hall above, and to the rooms opening into it, and the unobstructed use of that stairway is necessary to their proper use and enjoyment. This was the condition of the premises when the bank sold and conveyed to Grapes, those portions purchased by him, including the hall, and the rooms which open into it; and thereafter, with the knowledge of the bank, he used the stairway as his only means of access to the hall and the rooms, until he sold to the plaintiff. The stairway was so in use when the plaintiff purchased, and he, thereafter continued such use until shortly before the commencement of the action, when the bank threatened to close up the entrance to the hall, and thus prevent the use of the stairway as a means of approach to it, and to the connecting rooms.

The general rule, that easements appurtenant, pass with the grant of the dominant estate, is not controverted; but the principal claim of the plaintiff in error is, that inasmuch as the conveyance was made to Grapes immediately after the completion of the buildiug, and, at that time no use had been made of the stairway as a means of access to the hall and rooms above, the right to such use was not an appurtenance to the premises conveyed, and did not, therefore, pass by the grant. It is evident however, that at the time of the conveyance, the arrangement and construction of the building were such as to plainly indicate, that the stairway must have been intended as a permanent and continuous way of reaching the hall, and the rooms connecting with it, on the second floor. Those rooms were constructed for use, and no avenue of approach to them was provided, except by that stairway. • The bank, in the construction of the building, had thus visibly and obviously made them dependent, for the means of access, and beneficial enjoyment, upon the use of the stairway; and, it must have been apparent to both parties, that, in the condition in which the premises were, at the time of the conveyance, without the use of the stairway, the hall and rooms to which it led, were inaccessible and useless; and it could hardly have been contemplated by either, that immediately thereafter, the grantee should contrive, and adopt some different means, by which he might be enabled to .enjoy what he had purchased. The parties are presumed to have contracted, with reference to the condition of the property at the time of the sale, and to have intended, that the grantee should have the means of using the property granted, and therefore, that he should have such rights and privileges in, or over, the premises remaining in the grantor, as might be requisite for that purpose.

It is a well settled doctrine of the law of easements, that where there are no restrictive words in the grant, the conveyance of the land, will pass to the grantee, all those apparent and continuous easements which have been used, and are at the time of the grant used by the owner of the entirety for the benefit of the parcel granted; and also, all that appear to belong to it, as between it, and the property which the vendor retains ; and hence, when the owner of an entire estate, makes one part of it visibly dependent for the means of access, upon another, and creates a way for its benefit over the other, and then grants the dependent part, the other part becomes subservient thereto, and the way constitutes an easement appurtenant to the estate granted, and passes to the grantee, as accessorial to the beneficial use and enjoyment of the land. “ It can not be denied,” said Pollock, C. B., in Glave v. Harding, "that if a man build a house and there is actually a way used, or obviously and manifestly intended to be used, by the occupier of the house, the mere lease of the house would carry with it the right to use the way as forming part of its construction.” ' 2 L. J. (N. S.) C. L. R. 292. And " Where the shell of an unfinished house was sold, with openings in the the walls for the insertion of windows and doors, it was held that the vendor could not, after the sale and conveyance of the unfinished structure, build on his own adjoining land, so as to obstruct the access of light and air to the spaces left for windows, or place obstacles in the way of the exercise of a right-of-way to the apertures intended for doors; and when two separate purchasers buy two unfinished houses from the same vendor, and at the time of the purchase the spaces for windows and doors are marked out, this is a sufficient indication to the purchasers of the rights they are respectively to enjoy,so that they can not subsequently interfere with each other’s .enjoyment- of the windows and doors so marked out and impliedly agreed upon at the time of the sale.” Addison on Torts, (Sixth Ed.), 314; Janes v. Jenkins, 34 Md. 1; Compton v. Richards, 1 Price, 27. And see Thompsons v. Miner, 30 Iowa, 386 ; Washburn on Easements, 91.

So long as the bank continued to own the entire premises, there could, of course, be no easement in favor of one part, or servitude upon another, for, it might- make any use it chose, of every part. But when it conveyed the part now owned by the plaintiff, the purchaser took it with all the incidents and benefits which at the time appeared to belong to it, as between it and that part retained by the bank. The stairway being at that time, the means provided by the vendor for access to a part of the premises sold, and the only means of such access then existing, and being then and now, as found by the circuit court, necessary to the proper use and occupation of the premises sold, the right to its use, passed by the conveyance to the purchaser, and the bank can not be allowed now to derogate from its grant, by depriving the plaintiff of that use.

„It seems to be supposed by the counsel for plaintiff in error, that the judgment of the circuit court requires the bank to keep the stairway in repair, and rebuild it in case of its destruction by -fire or other casualty. If such were the scope of the judgment, the plaintiff in error would have just ground of complaint; for it is undoubtedly the rule, that unless the owner of the servient estate is bound by covenant or prescription to repair, he is under no obligation to do so. The burden devolves upon the owner of the dominant estate, of making whatever repairs are necessary for his use of the easement. It is said by a learned author that “As a general proposition, whoever has an casement, like a right-of-way for instance, in or over another’s premises^ is the one to keep it in repair.” Washburne on Easements, 730. And by another, that “ Every grantee of a right-of-way, to be exercised and enjoyed over or through the land of the grantor, must himself repair the way, if he desires to have it repaired and kept in repair for his use, or if repairs are necessary to prevent the enjoyment of the right becoming an annoyance and nuisance to the owner of the servient tenement, unless the grantor himself has expressly undertaken the performance of that duty.” Addison on Torts, 301-302. But it is clear the judgment has no such effect as that supposed. It does no more than enjoin the defendant, and those succeeding to its title, from doing any act, curtailing the plaintiff’s enjoyment of the easement

The payment made by the plaintiff to the bank on account of the insurance, is quite unimportant. It appears to have been nothing more than a voluntary contribution, without agreement, or obligation, toward the paymeut of the increased rate of insurance exacted-in consequence of the opening made in the wall, in the construction of the hall referred to, and is not incompatible with the existence of the easement. How it would have affected the rights of the parties, if the payment had been made as a compensation for the use of the stairway, we need not determine.

Upon the facts found by the circuit court, its judgment, we think, is correct and must be affirmed.

Judgment accordingly.


author: Spear, J.

text:
    Cohoon et al. v. Kineon.

      Landlord and tenant — Rental value of premises — Offer to confess judgment— Rule of costs in such cases.

    ¶. Where a party occupies premises as a tenant upon an uncertain tenure, and suit is brought, to recover for use and occupation for the time occupied, the rule applicable to the case is: WThat was the fair rental value of the premises as occupied under all the circumstances of the case? And it is competent for the defendant to prove the rental value for the time so occupied.
    2. In such case evidence of the value of the real estate itself is not competent as bearing upon the question of rental value.
    3. Where, in an action for the recovery of money, commenced in a justice’s court, the defendant, in that court, offers to confess judgment for a given amount, with interest from the accruing of the debt, which is not accepted, and the case is appealed to the court of common pleas, the offer follows the case to that court, and is governed by section 5141 of the Revised Statutes; and if, at the trial the plaintiff'does not recover more than was so offered (o be confessed, and interest thereon from the date of the offer, he will be liable for the costs of defendant accruing after the offer was made.
    (Decided November 19, 1889.)
    Error to tbe Circuit Court of Hamilton County.
    The plaintiff in error and the defendant in error were tenants in common of a parcel of land situate in the City of Cincinnati, which the defendant occupied for six months beginning ’ January 1, 1881. The plaintiffs brought two suits against defendant before a justice of the peace, one to recover .$250.00 for a quarter’s rent from January 1, to April 1, and another for a like amount from April 1, to July 1. Both cases were appealed to the Court of Common Pleas of Hamilton County, where they were consolidated, and the consolidated case tried at the November term, 1887, which trial resulted in a verdict and judgment in favor of plaintiffs for $347.13, Plaintiffs moved for a new trial, which was overruled and judgment was rendered for plaintiffs for amount of verdict. The court rendered judgment against the plaintiffs for a portion of the costs. Plaintiffs prosecuted error to the circuit court, in which court the judgment below was affirmed. To obtain a reversal of this j udgment of affirmance this proceeding in error is prosecuted.
    Other facts necessary to an understanding of the points decided are stated in the opinion.

      D. Them Wright, for plaintiffs in error.

      Wulsin & Perkins, for defendant in error.
   Spear, J.

The relation of the parties with respect to the property in question, and the circumstances, showed that, by mutual understanding, the relation of landlord and tenant existed between plaintiffs and defendant. But ofie question, therefore, was to be determined by the trial, viz.: the amount of recovery for the rent to-be paid. The plaintiffs claimed that an agreement existed, between them and defendant, by which defendant undertook to pay rent at the rate of $1,000 a year. The verdict disposed of that claim, and it is unnecessary to consider it here.

At the trial, the plaintiff sought to prove, as a means of ascertaining the rental value oí the premises for the time occupied, the value of the property itself. To this an objection by defendant was sustained by the court, and the evidence excluded. This ruling is alleged as error. We see no error in the ruling. Proof of the value of the fee simple could hardly aid in ascertaining rental-value. The converse of the proposition might be true; indeed would be. But it is matter of common observation that many tracts of real estate of great value have no actual rental value. The evidence would have been misleading, and was, we think, properly excluded.

In cross-examination defendants counsel sought to show, by a witness called by plaintiff to prove rental value of the property for a year, what it was worth for three months only. Plaintiff’s objection was overruled and the evidence admitted. This is assigned'as error. The rental value for three months was one of the matters at issue, and hence was a proper subject of proof. Besides, the questions were legitimate as cross-examination. For the same reason the defendant was properly permitted to give evidence in chief of the rental value of the premises for three months.

"We think the true rule applicable to the case by which the defendant’s liability was to be ascertained, was : What was the fair rental value of the premises as occupied by the defendant, for each of the two quarters which he occupied them, under all the circumstances of the case. This rule the trial judge recognized and enforced. His instructions to the jury were clear and impartial, and we think, as favorable to the plaintiffs as the law of the case would warrant.

Divers other errors are assigned as occurring at the trial. We have examined the record with respect to all these alleged errors, and are satisfied that no error is apparent on the record prejudicial to the plaintiffs.

In the justice’s court, before the trial, the defendant offered in one case to allow judgment to be taken against him for $125.00, with interest from April 1, 1881, (the end of the first quarter), and the costs then made; and in the other case1 for a like amount, with interest from July 1, 1881, (the end of the second quarter), with costs, each of which offers plaintiffs in open court refused to accept. In' rendering judgment, the court of common pleas ordered plaintiffs to pay the costs of defendant (save certain costs which had been adjudged by higher courts) accruing after the making of the offers. This is assigned as error. The claim is that the offers to confess were governed by section 6581 of the Revised Statutes. That section provides that if a defendant, any time before trial, make an offer in writing, to allow judgment to be taken against him for a specified sum, the plaintiff may then have judgment therefor, with the costs then accrued; but if he do not accept the offer before trial, and fail to recover a sum greater than the offer, he cannot recover costs accrued after the offer, but costs must be adjudged against him. This section is part of the justice’s code, and applies to actions pending before ajustice of the peace.

The general provision on the subject was enacted as section 498 of the Code of Procedure, which regulated practice in courts of record. It is now section 5141, Revised Statutes, and provides that the defendant in an action for the recovery of money may offer in court to confess judgment, whereupon if the plaintiff refuse to accept and at the trial does not recover more than was so offered, and the interest thereon from the date of the offer, the plaintiff shall pay all the costs of defendant incurred after the offer was made.

These actions had been removed from the justice’s court by appeal to the court of Common pleas, and were there subject to the general rules of practice of that court. This is the spirit of section 6587 of the Revised Statutes, which is that The plaintiff in the court below shall be plaintiff in the court of common pleas; and the parties shall proceed, in all respects, in the same manner as though the action had been originally instituted in the said court.” Conformably with this provision pleadings are required to be filed, the jury selected, and the trial conducted and judgment rendered as in other suits for money there pending. Why should not the rule of the statute as to costs also apply? True, the offers were made in the justice’s court, and had the cases terminated there, the matter of costs would have been determined by the provision of section 6581. But the offers to confess judgment were carried with the other proceedings by the appeal to the common pleas, and the defendant had the rights thus given until the cases should be finally disposed of. That this section applies to cases like the one at bar, after appeal to the common pleas, was distinctly held by Day, J., in his opinion in Courtright v. Staggers, 15 Ohio St. 511. This holding seems to us well grounded in reason, and we are content to follow it in determining the question here. By force of the section, unless the plaintiffs should recover more than the sum offered, and interest from the date of the offer, they were liable for the costs of the defendant after the offer. Their recovery was a little less than that sum. We think the court of common pleas properly adjudged defendant’s costs accrued after the offers against the plaintiffs.

This construction works out justice between the parties.. Had the plaintiffs accepted the offers, they would have had,, adding interest, as much money as the verdict entitled them to. The statute is intended to impose the expense of litigation-upon the party who wrongfully persists in continuing it. Its purpose is to discourage needless contention by placing on the-litigious party the risk of having his final recovery reduced by a liability for his antagonist’s costs. The litigation in this case-proceeded to determine whether the plaintiffs were entitled to-recover a judgment for a greater sum than the amounts offered^ The result showed that they were not; that beyond that, amount the plaintiffs’ claim was groundless, and in equity, and upon the reason of the statute, plaintiffs should pay the costs-made necessary by so unjustifiably prolonging the litigation.

Another view of the case leads to the same result. The instructions of the court required the jury to ascertain from the-evidence the amount due from the defendant as rent for each quarter, and then to the amount found for the first quarter add interest from April 1, 1881, to the first day of the term, and also ascertain the amount of rent due for the second quarter, and to that add interest from July 1, 1881, -to the first day of the term, and add all together, and make their verdict.for the gross sum. It must be presumed that the jury followed this direction. It is not unreasonable to construe the “ recovery” referred to in the statute as the recovery upon the cause of action, in this case for rent, the interest being a mere incident. That recovery by the verdict was a sum a trifle less than the-sums offered. So that, upon this view, the plaintiffs not having recovered a sum greater than the offers, were liable for defendant’s costs after the offers were made.

Judgment affirmed.


author: Bradbury, J.

text:
    Board of Education v. Board of Education.

      Statutes — Construction of — Public school property — Title to.

    1. General words used in one section of a statute may be restrained to particular subjects, where the letter of the words would make it impracticable to accomplish a special object authorized by another section of the same statute.
    2. Public school property, real or personal, that has been appropriated and set apart by a township board of education for the purpose of a public school of a higher grade than primary, for the benefit of the youth of the whole township, does not pass to or vest in the board of education of a separate school district that may be afterwards organized out of the territory within which the property happens to be situated, although the property falls within the letter of section 3972 Rev. Stats., which is the section of the school law relating to the subject.
    (Decided November 19, 1889.)
    Error to the Circuit Court of Carroll County.
    ‘ This action was brought by the plaintiff in error, in the Court of Common Pleas of Carroll County, to recover from the defendant in error possession of a school house and the lot of land upon which it stands. The pleadings, as made up, put in issue both the title and the right of possession of the plaintiff to the property in dispute. The action was tried by the court, without the intervention of a jury, and resulted in a judgment for the defendant.
    The plaintiff embodied the proceedings at the trial in a bill of exceptions and took the case to the circuit court on error, where the judgment of the court of common pleas was affirmed. Thereupon this proceeding was brought to reverse both judgments.

      Fimple, Holder & TJeFord, for plaintiff in error.

      Hays & Blaok, Mo Coy <fc Taylor, and George E. Coleman, for defendant in error.
   Bradbury, J.

There was no dispute about the essential ■ facts of the case. It appears from the bill of exceptions that, prior to May 19, 1885, Monroe Township, Carroll County ^ constituted a single school district, composed of a number of sub-districts of which the village of Dell Roy, known as sub-district No. 5, was one; that in the year 1882, the plaintiff bought the lot and advertised for bids to construct the house in disputo; that at a meeting, of the board of education, held September 18, of that year, the bids were opened and the board at the same meeting, by resolution, established for the township a school of higher grade than primary, and appropriated and set apart for that purpose this house, when it should be built, together with the lot and all its appurtenances ; that during the ensuing winter it caused such school of higher grade than primary to be taught therein; that after-wards the board rejected .a resolution introduced to transfer this property to sub-district No. 5, for a sub-district school house, but did from time to time, by special resolutions, permit sub-district No. 5 to use said house for limited periods of time; that on May 19, 1885, the territory composing sub-district No. 5 was organized into a village, or independent, school district, which is the defendant in error; that at the time of its organization into a village district there were within the territorial limits two school houses besides the one in controversy; and that upon completing its organization the defendant took possession of the latter house, as well as of .the two others, and has retained such possession ever since.

Counsel for plaintiff in error claim that, upon the undisputed facts as above recited, the judgments of the common pleas and circuit courts should have been for their client, while, on the other hand, counsel for the defendant contend, not only that the judgment of the lower courts upon the facts, we're correct, but that this court is not completely advised concerning the undisputed facts, because the bill of exceptions does not contain all the evidence that was before the court of common pleas. An examination of the bill of exceptions will disclose that the contention of defendant’s counsel, that it does not contain all the evidence, is incorrect. The only omission claimed is, that the bill of exceptions does not contain a report of the plaintiff made August 31, 1883. This report was offered by the defendant, evidently, to show that it contained no reference to a high school, and the. record discloses that the plaintiff then admitted it contained no such reference. This was to obviate the necessity of introducing in evidence the report; and as the record does not contain any statement that it was in fact admitted, the inference is that it was not. But were there no such inference, yet as the bill of exceptions states that it contains “ all the evidence introduced by either party,” it would be conclusive of the matter, unless upon its face some omission affirmatively appeared, and the circumstances alluded to above fall far short of establishing such omission, even if the correctness of the inference drawn by the court from them should be questioned.

The bill of exceptions, then, being complete, did the undisputed facts which it discloses, entitle the plaintiff to a judgment? The school house in dispute was built by the township board to be used for teaching a school of higher grade than primary, for the benefit of the youth of the whole township. It was, presumably, located at a point most convenient for that purpose, and which happened to fall within the territory afterwards organized into a separate village district, but was not designed for the benefit of that territory alone ; nor was .it ever afterwards set apart by any action of the township board for the use of that territory. On the contrary, not only was a resolution to that effect defeated, but resolutions granting its use to the sub-district temporarily were couched in the most cautious and exact terms, to avoid, evidently, any inference that the township board intended to yield up any right thereto, beyond that expressly granted.

There being, then, nothing in the bill of exceptions from which it can be inferred that the township board ever renounced its general control over, or transferred to the defendant its title to, the property, this must have been accomplished, if at all, by operation of law, from the circumstance that it was situated within the territorial limits of the defendant when that territory was organized into a village district. It is claimed that section 8972, of the Revised Statutes, has this effect. That section reads as follows : All property, real or personal, which has heretofore vested in and is now held by any board of education, or the council of any municipal corporation, for the use of public or common schools in any district, is hereby vested in the board of education provided for in this title, having under this title jurisdiction and control of the schools in such district.”

That the school property in dispute in this action is embraced by the terms of this statute is clear; it is property “ held * * * for the use of public or common schools,” and it is situated in the district, the schools of which are under the “jurisdiction and control” of the defendant board, so that, unless the general words of the statute can be restrained or limited by ascertained principles of construction, they would vest the title of the property in the defendant. These principles require us to examine the whole law upon the subject, and learn, if possible, the general object of the law maker, and give to any particular section a meaning in harmony with this general object, if the language will bear it; or, to forbear to give it a meaning that will defeat some special purpose of the legislature, clearly discernible in some other portion of the entire enactment.

The purpose of the legislature, in enacting the school law of 1873, was to provide a harmonious system of public schools for the education of the youth of the state, in both the primary and higher branches of learning. Township boards of education were authorized to create and maintain, for the benefit of the whole township, schools of a higher grade than primary. For this purpose they have power to procure grounds at points most accessible and convenient, erect suitable houses and provide appropriate instruments and appliances. Can it be reasonably supposed that the legislature contemplated that, after a township board had, perhaps, expended a large sum of money in purchasing a site convenient for the whole township, erected a building in every way suitable and commodious for the youth of the township who might be' desirous of higher education, and provided instruments appropriate to the object in view, their hopes could be defeated, and house, grounds and appliances wrested from them, by the inhabitants, of the territory in which the building was situated organizing themselves into a separate school district ? This result could be brought about if the general language of section 3972 can not be restrained by construction. That they should take •with them and hold in their new and independent state, all the public school property which was in their territory and had before been used by them alone, is entirely reasonable. The other portions of sub-districts of the township had no practical interest m or beneficial use of it before the separation. Each remaining sub-district had similar property in its limits, subject to its particular use, and therefore suffered no injury by the transfer of the title and control to the same persons, though differently organized, who had before enjoyed its sole use. Here, then, is property that is embraced within the general terms of section 3972, and which, it is reasonable to suppose, was intended to be transferred to the separate district upon its organization. To hold that grounds, buildings ■and appliances, designed and intended to secure to the youth •of the whole township an opportdnity for education in the higher branches of learning could be thus transferred, would •defeat a legislative purpose clearly discernible upon the face •of the law; for township boards could hardly be expected to provide the necessary means to accomplish it, where the requisite property should be held by so uncertain a tenure.

The rule that general words used in a statute should be limited to the objects to which it is apparent the legislature intended to apply them, is established upon the authority of the text books and of almost innumerable adjudicated cases. Hardcastle, in an ably written and recent treatise on the construction of statutes, reviews the English cases on the subject from a very early period, and on page 75 says : “The question whether, when the legislature have used general words in a statute * * * those words are to receive any (and, if •so, what) limitation, is one which may sometimes be answered by considering whether the intention of the legislature on this point can be gathered from other parts of the statute.” And he cites from Stradling v. Morgan, Plowden, 204, the following language with approval: “ The judges of the law, in all times past, have so far pursued the intent of the makers of statutes, that they have expounded acts which are general in words to be but particular where the intent was particular; * * * and those statutes which comprehended all things in the letter they have expounded to extend but to some things.”

This principle is peculiarly apposite to the case before us; the words of the statute embrace and would transfer, if not limited, all the school property within the territorial limits of the defendant to its control and use; but there can be gathered from the statute a legislative intent incompatible with, the unlimited meaning these general words convey; — an intention to empower the township board of education to establish a township school of a higher grade than primary, and to acquire and hold property for that purpose, though the territory within which the property may be located should organize itself into a separate school district.

This rule of construction finds support in the decisions of neatly every state of the’Union, but it is only necessary to notice some of the cases in our own state. The first case in Ohio is that of Burgett v. Burgett, 1 Ohio, 469, where the court construe the statute making “ every gift, grant, or conveyance of lands, * * * to defraud creditors, utterly void and of no effect.” These words are general, and if not limited by construction, would make such conveyance void as to all persons; but the court limited it to persons whom it was the intention of the legislature to protect, that is to creditors and subsequent purchasers. On page 480, Judge Burnet in delivering the opinion of the court says: “ The intention of the law makers may be collected from the cause or necessity of the act, and statutes are sometimes construed contrary to the literal meaning of the words. It has been decided, that a thing within the letter, was not within the statute, unless within its intention. The letter is sometimes restrained, sometimes enlarged, and sometimes the construction is contrary to the letter.” The same principle was adopted in Whitney et al. v. Webb et al., 10 Ohio 513 in construing the. words “beyond the seas” in the statute of limitations. See also Slater et al. v. Cave, 3 Ohio St. 80. It is unnecessary to refer to all the cases in this state in support of this principle of construction. There is, however, one other case to which I desire to refer; it is that of Sawyer v. The State ex rel. Horr, 45 Ohio St. 343. In that case the court was required to construe the statute (84 Ohio L. 240) creating a new judicial circuit and providing for three additional circuit judges, which it provided should be elected “ on the first Tuesday of' November next.” The court upon a consideration of the whole statute, in connection with the general election law of the state, rejected the language quoted and held that the legislature must have intended the election to be held on the “ first Tuesday after the first Monday of November.” It was contended in that case that the language was too plain to admit of such construction, but an examination of the opinion of Owen, C. J., will show the holding of the court to be in line with the best considered cases.

We hold, therefore, that by the established principles of construction, the general words of sec. 3972 Rev. Stats., must be limited so as not to vest in a separate school district, carved out of ,a township, property that had been acquired and was> held for the benefit of the whole township.

The judgment of the circuit court, and that of the common pleas,, is reversed, and a judgment for the plaintiff upon the undisputed facts.