text:
    Lake Shore and Michigan Southern Railway Co. v. William Knittal.

      1. The employe of a railroad company takes the ordinary hazards of the service, also such risks as arise from his own negligence, or that of such of his fellow employes, engaged, in a common service with him, as have no authority or control over him; but takes no risk arising from the negligence of the company, or of a fellow servant placed by the company in authority over him.
    2. If, however, such employe, with a full knowledge of an habitual and continued negligence of the company or his superior fellow employe in some particular matter, acquiesces therein and continues in the service of the company, without any objection or effort toward a correction of the neglect, he thereby waives his right against the company and takes the risk upon himself.
    3. "Whore it was the custom of such employes operating a railroad train to switch cars from the main track to a side track while the train is running, and to make such switches on the order of the conductor, without his personal supervision, as required by a rule of the company: Held, That an employe, who accepted service on the train subordinate to the conductor, with full knowledge of such custom, or continued in the service after acquiring such knowledge, without any objection, and acquiesced in the custom, waives all right he might have against the company arising from such mode of doing the business, or from the neglect of the conductor in not personally superintending it, as required by the rule of the company; and if he be injured in making such customai'y switch through his own neglect or that of a fellow employe on the train having no control over him, no recovery therefor can be had against the company.
    Error to the District Court of Cuyahoga county.
    ’William Knittal, the defendant in error, sued the railroad company, plaintiff in error, to recover damages he sustained in the loss of a foot, while making a switch of a car from a train on the main track to a side track of the road, while the train was running. The grounds of the recovery were the alleged negligence of the company in not furnishing a competent conductor of the train, in permitting the business to be conducted in a negligent and dangerous . manner, -and the negligence of the conductor and foreman of brakemen in not sufficiently checking the speed of the engine, when he alighted therefrom to set the-switch to the side track.
    On the trial, the jury returned a verdict in favor of Knittal for $5,000. Exceptions were taken by the company to the admission of parts of the evidence and to the charge of the court. A motion for a new trial, on the ground that the verdict was against the law and the evidence, was overruled, to which the company excepted and took a bill of exceptions, embodying all the evidence.
    Knittal had been in the service of the company two or three years, and had been brakeman on this train about six weeks, when the accident occurred. The employes on the train were a conductor, engineer, fireman, and three brakemen. Knittal was one of the brakemen, and he claims that Kinsig, another brakeman, was foreman of brakemen. The accident occurred to Knittal on his alighting from the engine, when in rapid motion, to set the switch. He fell, and his foot came under the car wheels. The testimony is voluminous, but is so far referred to in the opinion that a further statement of the case is not required.
    The district court, on error, affirmed the judgment of the common pleas, and this petition in error is prosecuted to reverse these judgments.

      James Mason and JE. J. JEstep, for plaintiff in error:
    The only averment upon which it can be pretended that there is a cause of action is that the conductor and foreman carelessly and negligently did not reduce the speed of the train, but it is no where averred that either one of these officers had any power or control over the speed of the train, and, in point of fact, they had not. The engineer alone had control of the speed of his engine, and, in that regard, not under the control of the conductor. The law will certainly presume no such obligation on the part of the conductor or foreman, and the averment that they carelessly neglected to do what is not averred as an obligation and -which the law does not presume to be an obligation, charges no actionable wrong.
    The case is presented of a brakeman jumping from a rapidly moving train simply because, as the petition alleges, he was ordered to do so by one whose general and proper orders it alleged he was bound to obey,but who had no power to compel, and could not compel, him to incur any apparent danger. If the averment shows an improper order, it shows at the same time one he was not bound to obey, and show's what is per se contributory negligence in obeying it. Ill. R. Co. v. Swift, 26 Ind. 476; Sanford v. Eighth avenue R. R., 23 N. Y. 343 ; 3 Ohio St. 211.
    Enittal not only voluntarily took the risk of leaping from the engine, and undertook to use his own judgment in the business, having the right to himself control the engineer as to speed, but he knew of the manner in which the business was done by the company, and waived all objections to it, and with full knowledge that the speed of the engine was not controlled by the conductor, and that he did not ride on top of the train to supervise it, he continued the employment with this knowledge. Haskins v. New York Central R. R. Co., 65 Barb. 134 ; Wright v. New York Central R. R. Co., 25 N. Y. 562 ; Barber v. Mad. R. R., 5 Ohio St. 565; Hayden v. Smithfield M. Co., 29 Conn. 548. Greenleaf v. Ill. Con. R. R. Co., 29 Iowa, 14, is the case of a brakeman killed while making a running switch; Kroy v. R. 1. & P. R. R. Co., 32 Iowa, 357, is a strong case, illustrating effect of acquiescence by employes in a custom dangerous in itself.

      L. R. Critchfield, for defendant in error.
   Day, J.

We do not deem it necessary to pass upon all the questions made in the case. The motion for a new trial, on the ground that the verdict is against the law and the evidence, brings the case into review on its merits.

A recovery against the company was sought in the petition chiefly on three grounds: 1. That it employed an incompetent conductor; 2. That the making of a “ running switch ” was a dangerous mode of doing business; 8. That the injury was occasioned by reason of the negligence of the conductor and the foreman of the brakeman, in not reducing the speed of the train so that a running switch could be made safely.

There is no evidence proving the incOmpetency of the conductor.

As to the dangerous mode of doing business, it is proper to say it does not appear that the company required running switches to be made. Nor is it clear that the conductor ordered a running switch to be made on the occasion in question. The evidence does show, however, that this mode of making switches had long been practiced by the employes of the company, and that the plaintiff below had full knowledge of this mode of doing business, and at all times acquiesced therein. He had on numerous occasions before performed the same service in making running switches as he attempted to do when he was injured. He never objected to or complained of that mode of switching. On the contrary, he seems to have known of this practice by the employes of the company when he entered its service, or at once thereafter voluntarily united with his fellow brakemen in the practice, which seems to have grown up and at all times been continued from their voluntary choice, rather than from the orders of their superior servants.

If it be conceded that the switching of cars from the main track to a side track of the road while the train is in motion, is a dangerous mode of doing the business, and ought to be regarded as evidence of negligence of the company or its officers ; still, all the employes who entered the service of the company with full knowledge that such was the practice, or acquired such knowledge afterward, and remained in the service without the least objection thereto, and fully acquiesced therein, must be regarded as having consented to the practice, or as having waived any objection thereto, and therefore as having taken the risk upon themselves. Mad River Railroad v. Barber, 5 Ohio St. 541, 563 ; Kroy v. The Chicago Railroad, 32 Iowa, 357 ; Hayden v. Smithville Manufacturing Co., 29 Conn. 548; Wright v. N. Y. Central R. R., 25 N. Y. 566.

As to the alleged negligence of the conductor and foreman of brakeman, it must be observed that the evideuce clearly rebuts the idea that any authorized relation of superior and subordinate existed between the brakeman on the train. Kinsig, the supposed foreman, being the senior in service as brakeman, was intrusted by the conductor with more duties than was imposed upon the others. Neither the company nor the conductor had placed him in a position of authority over his fellow brakemen : he was therefore nothing more than their fellow servant, engaged in a common employment, whose negligence would not give the others a right of action against the company. Pittsburgh Railroad v. Devinney, 17 Ohio St. 197.

The conductor, at the time of the accident, was on the platform of the rear ear, which was used as a passenger car. The train consisted of twelve ears, all of which but the rear one were freight cars. The rules of the company require conductors of freight trains to be upon the top of the train to superintend its management. It is claimed, however, that this was a mixed train, to which this rule did not apply, and the weight of the evidence would seem to support this claim. But however this may be, the conductor seldom complied with the rule, aud his habit in that respect was well known to the brakeman, and was fully acquiesced in by them all.

On the occasion in question, the plaintiff below, without objection, as usual, undertook to make the switch', knowing that the conductor was not on the top of the train ; he can not, therefore complain of the negligence of the conductor, if any there was, in this respect.

But, independent of these considerations, the running switch on the occasion in question was made in every respect as the employes had been accustomed to make them, except, perhaps, that the speed of the engine, after it was detached from the train, was faster than usual at the moment the accident occurred. The engineer had been duly notified by the brakemen that a running switch of the second car was desired. They duly signaled him to slacken the speed, to enable them- to uncouple the car. The speed was checked; the car was detached ; the conductor, on the platform of the ¿ear car, properly applied the brakp to check'the motion of the rear section of the train after it was detached, and the other brakemen were at their proper places, and neglected no part of their duties. Had the conductor been on the top of the train, nothing more could have been done by him, or any other employe of the train, than was done to conduct -the business in the usual manner, except what was done by the engineer and the injured brakeman himself. They were on the engine. Both had equal means of knowing its speed. If either, or both, were negligent, no recovery can be had. Eor the brakeman’s own negligence would defeat his recovery; and if he was without fault, and the engineer alone was negligent, in not sufficiently checking the speed of the engine for the brakeman to alight therefrom, no recovery can be had for his negligence, for he was the brakeman’s fellow-servant having no authority over him.

Neither the negligence of the engineer, nor the unexpected speed of the engine, at the instant of the accident, can be attributed to either the conductor or the alleged foreman; for both, equally with the injured brakeman, had the right to presume that the engineer would properly regulate its speed. On all such occasions he, and not the conductor, controlled' the speed of the engine, and this was well known to the injured party. This duty belonged to, and was properly committed to, the engineer. Neither the conductor nor the brakemen from the rear sections, detached and distant from the engine, could exactly determine or control its speed in the brief space of time in which the business must be done, especially at the moment of the accident. From the nature of the case, none could do that but those on the engine; and, therefore, neither the conductor nor the other employes can be charged with negligence in not checking the speed of the engine when the accident occurred.

The case at last, then, falls under the settled principle, that a servant can not recover damages of the master for an injury which results either from his own negligence or that of a fellow servant, engaged in a compion employment, having no superior authority or control over him.

The verdict, then, upon the law and the evidence, can not be sustained; The jury, doubtless, fell into the error from the concluding remark of the court in its charge to the jury, viz.:

“ If the jury find that in the instance complained of in the petition the speed of the train was so great as to make it dangerous to get off the engine, and greater than they were in the habit of having on former and similar occasions, and the plaintiff did not know the speed of the train was greater than at other times when plaintiff performed the same duty, and the plaintiff exercised ordinary care in getting off" the engine, and was without fault in this particular instance, and the company by its officers having charge of the train was negligent in thus keeping up the speed of the engine uuder the circumstances, the plaintiff is entitled to recover.”

Por want of proper qualification, this instruction was misleading in this, that it might lead the jury to find a verdict against the company upon the negligence of the engineer, who, being merely a fellow servant of the plaintiff, it was shown by the evidence, had charge and control of the speed of the engine, and whose negligence alone (except perhaps that of the plaintiff himself) occasioned the injury.

It follows that the court erred in not granting the motion of the company for a new trial, and that the judgment, for that reason, must be reversed.

Judgment accordingly.


source: Caselaw Access Project

author: Day, J.

license: Public Domain

text:
    Stephenson v. Incorporated Village of Leesburgh.
    Where, in an action by an incorporated town to recover possession of certain streets and alleys, the petition set forth the plat of the town, and facts to constitute a legal establishment of the town and the dedication of the streets and alleys in question to the public use; also other facts pertaining to the case; and the answer admitted that the town had been laid out and established, but denied that the plat set forth in the petition was a correct one, and denied all the other allegations in the petition: Held, 1. That in admitting that the town was laid out and established, there being no specific denials to the contrary, the answer admitted all the facts averred n the petition which were essential to the legal establishment of the town and the dedication of its streets to the public. 2. The general denial applies only to the averments not included in such admission. 3. Upon the issue of the correctness of the plat in question, the record, of the plat made in the recorder’s office of the proper eouniy, which was conceded to be the only record of the plat of the town ever made, was admissible evidence. 4. The recorded plat being correct, and the dedication thereby effected having been acquiesced in more than sixty years, in connection with the other facts admitted, warranted the court in charging the jury that the plat was sufficient evidence of a dedication of the streets and alleys therein des? ignated, and sufficient to confer upon the town a right to the alley in question, and that the same was of the width specified in the plat.
    Error to tbe District Court of Carroll county.
    In tbe action below, tbe village was plaintiff and Stephenson defendant. Tbe action was brought, March 17, 1874, to recover possession of a street and an alley. Tbe petition, so far as material, was as follows;
    “ Tbe plaintiff' says:
    “ 1. The said plaintiff is an incorporated village in the county of Carrol, and State of Ohio, duly organized under tbe laws of said state.
    “ 2. The said village was laid out in the year 1812, by Thomas Price and Peter Saunders, who were the legal owners of the land on which said village was laid out; that the said Peter Saunders owned the land hereinafter described in the year 1812, and in that year laid out said town on the.land hereinafter described, and dedicated and established certain streets and alleys — a full plat thereof, fully describing the same, is hereto attached and made a part of this petition, marked £A.’
    3. That the ground between lots numbered 93 and 92, and between 100 and 101 on said original plat, situated in said village, being sixteen and one half feet wide, and one hundred and thirty-two feet in length, was, by said Peter Saunders, duly laid out in an alley, and donated to the use of said village and to the public, as an alley; and also the ground seventy-four and one-half feet wide on the north of said lots 93 and 100 to the same as a street.”
    The petition contains four other separately numbered paragraphs, stating other facts relating to the case.
    The answer, so far as material, was as follows:

      “ The defendant, for answer to the petition of the plaintiff in this case, says that he does not know whether the plaintiff is an incorporated village in the county of Carroll, Ohio, and, therefore, denies that said plaintiff is an incorporated village. And defendant admits that the village of Leesburgh, in said county of Carroll, was laid out and established, and that certain streets and alleys were described therein, but whether the plat marked ‘A’ is a correct survey of said village, as stated in the petition, the defendant does not know, and, therefore, denies that the same is a correct plat and survey. And defendant denies all and singular the other allegations contained in the said petition.”
    It appeared on the trial that, on March 14,1836, the legislature passed an act, the first section of which is as follows, viz.:
    “ That so much of the township of Orange, in the county of Carroll, as is comprised in the original town-plat of the town of" Leesburgh and addition, together with all such additions as may hereafter be made thereto and recorded, be, and the same is, hereby created a town corporate, and shall hereafter be known by the name of the town of Lees-burgh.”

      The plaintiff also offered in evidence a record of town-plats of the county of Carroll, and to exhibit to the jury a plat of the town of Leeshurgh in said county, with the lots platted and numbered thereon, also the street and alley mentioned in the petition, of the length and breadth as therein described; also to read the certificate attached thereto, showing that the town of Leeshurgh was founded in 1812, by Thomas Price and Peter Saunders by Daniel Black, his duly authorized attorney, and specifying the street and alley mentioned in the petition as being the same length and breadth as that therein described.
    To the plat and certificate were attached the following acknowledgment and certificates:

      “State of Ohio, Tuscaraioas county, ss.

      “ On the first day of August, in the year of our Lord one thousand eight hundred and twelve, personally appeared before me, a justice of the peace in and for said county, Thomas Price and Daniel Black agent for Peter Saunders, proprietors of the town of Leeshurgh, and severally acknowledged the above plat to be a true and accurate map of the the said town above stated.
    “ Given under my hand and seal the day and year above written.
    “ John Butterfield, Justice of the Peace.

      “ Received August 1,1812, and recorded August 11,1812. “ Attest :
    “ James Clark, Recorder.”

    The court, among other instructions, charged the jury as follows:
    “ The above plat and acknowledgment so found in record No. 1 of the records of Carroll county aforesaid, taken in connection with an act passed by the legislature of Ohio, March 14, a. d. 1886, for the incorporation of the town of Leeshurgh, Ohio, in connection with the fact admitted that there was no other recorded plat of said town, and no other town of Leeshurgh in Carroll county, Ohio, was evidence sufficient of a dedication of the streets and alleys, together with the width of the same as alleged in the petition — a copj^ of which such act of incorporation is hereto attached —and that the same was sufficient to confer upon the town of Leesburgh, Ohio, the right to Church alley, and that the same was sixteen and one-half feet wide, to which instruction the defendant excepted.”
    Verdict and judgment were rendered in favor of the village. On error in the district court the judgment of the common pleas was affirmed. To reverse these judgments this petition in error is prosecuted.
    The errors assigned are : 1. That the court erred in admitting the record of the town-plat in evidence. 2. That the court erred in its charge to the jury.

      John U. Tripp, and S. M. Graine, for plaintiff in error:
    I. The plat recorded and allowed in evidence was not such a plat as was authorized by the statutes in force in 1812, to be recorded — because, 1. It was not acknowledged by the proprietors of the land ; 2. If the words certified by the justice of the peace are an acknowledgment, under the statute, such acknowledgment is Daniel Black’s; 3. If the words are a proper acknowledgment, the acknowledgment was not certified by the justice of the peace under his seal. 1 Chase’s Stat. 502, §§ 1, 2.
    The record of a town-plat, not executed and acknowledged in pursuance of the statute, is not evidence. Satchell v. Doran, 4 Ohio St. 542; Incorporated Village of Fulton v. Mehrenfield, 8 Ohio .St. 440; Incorporated Village of Lockland v. Smiley, 26 Ohio St. 94.
    II. The record was no evidence of the original town-plat. If it were, the act of incorporation can not be construed as intending to regulate the width of its streets and alleys; it only purports to make a certain piece of land a town corporate.
    But, if the act did legalize a defective town-plat, other evidence was necessary to establish the right of the plaintiff. Proof was necessary to show that Peter Saunders was the proprietor of the land in 1812, and that Daniel Black was his agent, authorized for the purpose of dedicating the land.

      Shober & Railey, for defendant in error:
    I. To the petition, the plaintiff in error answered, and in his answer admits “ that the village of Leesburgh, in said county of Carroll, was laid out and established, and that certain streets and alleys were described therein; ” but “whether the plat marked ‘A’ is a correct survey of said village, as stated in said petition, the defendant does not know, and therefore denies that the same is a correct plat and survey.” The case came on to be tried, and the main question was as to the width of Church alley, the defendant in error claiming it was sixteen and a' half feet wide, and the plaintiff in error claiming it was only twelve feet wide.
    II. It was admitted that there was no other recorded plat of said town than the one offered in evidence, and that there was no other town of Leesburgh in Carroll county, Ohio. And it appeared that the copy attached to the petition was identical with the recorded plat offered in evidence.
    Now, the question arises, under the said act of incorporation, and said admissions in his said answer: Could the plaintiff* in error insist on any technicalities in the acknowledgment and recording of the plat? "We think not. The act of the legislature of 1886, recognized and confirmed the plat of Leesbui’gh, as then recorded. The record acknowledged and recorded in 1812 showed “all the alleys, uniform sixteen and one-half'feet wide, crossing at right angles, as shown on the map.”
    III. The record shows that the plat was executed and acknowledged, in pursuance of the statute then in force. 1 Chase’s Stat. 502. The want of seal to the acknowledgment was cured by the statute of 1883. S. & C. 470.
    The cases cited by plaintiff in error are not in point. They relate to cases where there was no acknowledgment.
   Day, J.

The answer denied that the plaintiff below was incorporated; but the legislative act given in evidence established that fact.

The answer admitted that the village of Leesburgh, with its streets and alleys, was “ laid out and established,” but denied that the plat thereof, made part of the petition, was a “ correct ” plat. There being no specific denial of the averments in the petition relating to the due and legal dedication of the streets and alleys to the public use, this admission, in effect, conceded all that was essential to the legal dedication of the town of Leesburgh, including its streets and alleys ; for it could not be “ established” without a legal dedication. The issue taken was only as to the correctness of the plat. The general denial in the answer must relate to the other facts of the petition not included in those necessary to the laying out and establishment of the town.

The act of February 14,1805 (Chase’s Stat. 502), in force when the town was established, required the proprietors of the town to have an accurate plat thereof made, acknowledged, and recorded; and the act devotes the streets and alleys so designated to the public use. The making, acknowledging, and recording of the plat, as well as the proprietorship of the town, were all essential to the legal establishment of the town; and that fact being admitted, there being no direct denials to the contrary, necessarily included them all in the admission.

The issue being only as to whether the plat in question was a “ correct” one of the town in fact “ established,” the record, being the statutory evidence of the plat, and being the only record thereof ever made, was admissible evidence upon that issue. There being no other recorded plat, it must be correct,” and must, therefore, be sufficient evidence to establish both the correctness of the plat and the width of the alley, which seems to have been the matter in controf'ersy,

This plat and dedication of the town, with its streets and alleys, having remained undisputed for more than sixty years, in connection with the admitted facts, clearly warranted the charge given by the court to the jury.

This, iii the view we have taken of the case, disposes of all the questions necessarily involved in it.

Judgment affirmed.


author: Johnson, Chief Judge.

text:
    In the Matter of the Exceptions to the Accounts of Thomas Stayner, Administrator of William Stayner.
    1. Under section 169 of the administration act (1 S. & C. 599), the filing of exceptions to an account of an executor or administrator in the settlement of an estate, raises a matter of dispute between the exceptor and such executor or administrator as to the items of said account excepted to.
    2. When such matter in dispute has been duly heard and determined by the court, it can not again be called in question by either of the same parties on the hearing of a subsequent account, without leave of the court.
    3. Exceptions are filed to items of a partial account, which are heard and determined by the probate court. On appeal to the common pleas, the matter in dispute is again fully heard and determined : Held, That the hearing and determination of the matters involved in the exceptions by the common pleas is final and conclusive in the probate court between the same parties, on the hearing of all subsequent accounts. In such case, the probate court has no power to open up or disregard the order or judgment of the court of common pleas in the settlement of the disputed items in the former account.

      4. The provision of said section 169, which authorizes the opening up of all former accounts for the correction of errors or mistakes therein, upon the filing of subsequent accounts, does not authorize the probate court to open up or vacate, at the instance of either of the parties thereto, a former order by the court of common pleas on appeal, in the settlement of a former account.
    5. Where the matter has been heard and determined by the common pleas on appeal from the settlement of a partial account, that court will not, on the heai'ing of another appeal on a subsequent account, on the motion of either of the same parties, reopen the former adjudication for the purpose of a rehearing of the exceptions to the partial account, upon the same evidence, or upon evidence that might have been adduced on the former trial.
    6. While the court of common pleas has power, for good cause, on the hearing of a subsequent account, which comes before it by appeal, to open up the settlement of a former partial account, made before the filing of such subsequent account, yet it is not error for it to refuse to do so. where the only cause assigned for such rehearing is, to enable a party to have a new hearing upon the same facts that existed, and might have been adduced at the former hearing.
    Error. Reserved in the District Court of Wyandot county.
    The facts will be found in the opinion.

      B. McKelly, with whom was G. B. Watson and Berry Berry, for the administrator :
    The decision of the common pleas court seems to be based on section 169 of the general administration act, 1 S. & C. 599.
    This provision of the statute was not designed for any such purpose. The legislature could not have designed to close an administrator’s account upon each partial settlement. A court with probate and testamentary jurisdiction is of the same character of chancery, in its jurisdiction and trusts. The trusts are vested in the chancellor, and trusts are but the adjuncts of the court. Jurisdiction on the estate of the dead, is but one form of jurisdiction and trusts. The estate is a trust, the administrator a trustee, and therefore an adjunct of the probate court. The orders made in the probate court, upon partial accounts, are but interlocutory decrees. It is certainly a novel proposition, that an interlocutory decree is conclusive. See Kelly and others v. Stansbery and others, 13 Ohio, 408; 7 Ohio, 71; 6 Ohio, 264 ; 7 Ohio, 265.
    Prior to the passage of sec. 169, a final settlement in a court of probate was but prim.a facie. 7 Ohio, part 1, 21, 71. The section in question puts a limitation upon the opening of such settlements. It provides for excepting to settled accounts in eight months; under certain circumstances, it further provides that on final settlements all former accounts are to be open for the correction of errors and mistakes. It then contains an exception as to matters of dispute between two parties, which have been previously heard and determined by the court. This certainly does mot mean a difference between the administrator and an ■exceptor. The administrator can not, in any proper sense, be a party, he is but the agent of the court. Like a trustee, he can only be sued in certain conditions. When sued, the ■estate, not himself, is a party. When an account is brought in, an outside party must deal with the court, not the administrator, for the whole matter is in and with the court. The claims of-an exceptor are against the estate. The ex-ceptor claims that the estate is not all returned. The court controls the subject by its orders, these orders are interlocutory or final, the differences between interlocutory and final orders are not abolished by the operation of sec. 169.
    This exception in sec. 169 is most surely intended to apply only to such orders as may be made between parties ■claiming adversely some fund or property that is part of the estate, and an order has been made settling their conflicting claims. In such cases the orders of the court become estoppels of record.

      John D. Sears, for the exceptions :
    The motion of the administrator for leave to open the order made in this cause in the Court of Common Pleas of said Wyandot county, at the March term thereof, 1869, of itself implies that the matter could not be opened and reheard without leave of the court, and would seem also to imply that the granting or refusal of that leave was discretionary with the court. And such is the only construction ■which can be given to the last clause of section 169 of the administration act (S. & C. 599), and the one it has uniformly received in Massachusetts, from whose legislation it was copied. It never was extended to the rehearing of a question which had been appealed. See opinion of Wilde, J., in Stetson v. Bass, 9 Pick. 27. The order made by the common pleas in March, 1869, was not an order in this cause which came into that court by appeal from an order of the probate court made in 1870. It was an order adjudicating the same question between the same parties in another case.
    It is claimed, therefore, that in any case it would have been within the discretion of the probate court to refuse to open and rehear this question, but after it had been heard,, on appeal, in the common pleas,the lower court could not review it, nor could the common pleas do so on appeal. It was res adjudicata. Any other view would make the-settlement of an estate entirely optional with the administrator. He could go on indefinitely, as he has attempted to do in this case, charging back to the estate what the court had charged him with, and there is no reason, logical or legal, why he could not do this after the order of the common pleas had been affirmed in the district, or even in-the Supreme Court, just as well as before.
    Eor other Massachusetts cases involving the construction of the statute under consideration, the court is referred to Sexton v. Chamberlain, 6 Pick. 422; Field v. Hitchcock, 14 Pick. 405 ; Boynton v. Dyer, 16 Pick. 1; Wiggin v. Swett,. 6 Metc. 194; Blake v. Pegram, 101 Mass. 592. And see 2 Redfield on Wills, 894; Babcock v. Camp, 12 Ohio St, 11; Roby v. Rainsberger, 27 Ohio St. 674.
   Johnson, Chief Judge.

August 27, 1868, the administrator filed his first account, aud among his credits claimed,, was the following:

“ The administrator asks for a credit for the annexed sums-which were advanced by decedent to his heirs, and on which, no interest was to be charged, and which were mentioned-in inventory:

Thomas Stayner’s 3 notes and aec’t..............$1,368 00

Jacob Ream’s 2 notes................................. 500 00

David Bower’s 2 notes............................... 779 14

Aggregate................................$2,647 14

October 17, 1868, the widow, excepted to the allowance-of these items.

December 1, 1868, these exceptions were heard and sustained, in part, by the probate court, and the matter was appealed to the coiu-t of common pleas, by the administrator.

March 15, 1869, the account was heard in the common -pleas, upon the exceptions to these and other items. The ■question there was: were these seven notes, mere advancements to the children, or were they assets of the estate? ■On that question the court of common pleas specially found, :as follows:

“This day came Thomas Stayner, administrator of William Stayner, deceased, by Messrs. Berry & Berry, his attorneys, and also came Lucia M. Stayner, widow of the ■said William Stayner, deceased, by Messrs. J. D. & C. Sears, her attorneys, and this cause came on for hearing upon the accounts of the said administrator, the exceptions ■thereto, and the testimony, and" was argued by counsel. And the court, upon examination of the several items ■of the said accounts, and the vouchers accompanying the same, as well as the several exceptions thereto, upon consideration of the same, the testimony adduced as well as •the arguments of counsel, do find that the said administrator in addition to the sum of $2,264.22 with which he charged himself in said account, ought to be charged with the •several notes, seven in number, for the principal of which he claims credit in his account as advancements by the intestate in his life time to the said Thomas Stayner, Maria Ream, and Mrs. “ Jacob ” Bower, amounting to the sum of ‘$2,647.14, together with the interest thereon from their maturity up to the 25th of January, a. d. 1867, the date of the letters of administration. The court finding as a matter of fact, that the notes were given in consideration of corresponding amounts of money, received by the makers of the notes, of the intestate, at the time of the execution and delivery of the notes by the several makers of said notes; and ■as a conclusion of law, the court holds that it is incompetent for the makers of the notes thus delivered to and held by the intestate, at the time of his decease, to aver and prove by parol testimony, that such notes were nbt, in fact, ■what they legally import to be — evidences of indebtedness —but were memorandums of advancements, unless fraud, or mistake be alleged and proved, which does not appear in this particular. . . ■. .

“ Thereupon the court further find that the said administrator, ought to be surcharged- with the said several amounts aforesaid, including the improper credits, for the-amount of the principal of said notes alleged to have been advancements.....

“ Thereupon, the court made an order, charging the administrator with these items, and rendered a judgment for a stated balance, with a maudate to the probate court in the usual form. From this judgment the administrator-prosecuted a petition in error in the district court, which was dismissed, without prejudice, at the September term of said court, a. d. 1869, for’want of a complete i-ecord, showing the existence of any errors as assigned in the exception. No further proceedings seem to have been taken to reverse-this judgment, nor was any direct proceeding instituted to-vacate or modify it.

Subsequently, January 26, 1870, the second partial account was filed; and on the 18th of August, 1870, the third and final account was filed. In the second account,, the administrator again includes the several items excepted to, and ruled out, in the first account as a credit, in these-words: “ Accountant claims credit for the amount of seven promissory notes with which he was erroneously charged by said common pleas in his first account, and which said notes can not be collected, and the amount thereof never-having been received by him,- $2,197.22.” ■

Exceptions to these items were again filed, by the widow,, on the ground of their former adjudication. Whereupon counsel for the administrator moved the probate court to-.open up the former order of the court of common pleas,, charging him with these items, which the probate court refused to do, and held that the former adjudication was-final and conclusive.

The case was again appealed, after sundry proceedings, not necessary to state, to the common pleas, where it was-heard upon the evidence, and a bill of exceptions taken. On the hearing, in the common pleas, the administrator-sought, by various efforts, to go back of the settlement of the first account, and show that these contested items were illegal and unjust charges against him, not by impeaching the former adjudication, on the first account, in any way, but by evidence tending to show that the exceptions, sustained to his first account, should not have been allowed, on the ground that these so-called notes were only memoranda of advancements; all of which was refused. ITe also moved the court, during the progress of the trial, to open up the former order of the common pleas, made on the first account of advancements, and rehear the question, which motion was overruled. To all of which exceptions were taken.

On error to the district court, to reverse this second judgment of the common pleas, affirming the action of the probate court, the case was reserved for decision here.

The sole question presented is, as to the effect of the judgments of the probate court and court of common pleas, as to these disputed items, made on the hearing of the first account, on the 15th of March, 1869. On behalf of the administator it is claimed, that the decision was not final; that the orders made by a probate court, or court of common pleas, on appeal, in the settlement of partial accounts, are in the nature of interlocutory decrees in chancery; and that, on final settlement of the estate, all former accounts are subject to be opened up, for the correction of any errors or mistakes of the court, as well as of others, in previous accounts.

On the contrary, it is claimed, that under section 169 of the administration act (1 S. & O. 599), a hearing between the parties, on exception to such partial account, and on adjudication thereon, is final as to all items in dispute, and can not again be relitigated, in a subsequent account, by either of the same parties.

That section provides that: “When the account is settled, in the absence of any person adversely interested, and without actual notice to him, the account may be opened, on his filing exceptions to the account, at any time within eight months thereafter; and, upon every, settlement of an account by an executor or administrator, all his former accounts may be so far opened as to correct any mistake or error therein ; excepting that any matter of dispute between two parties, which had been previously heard and determined by the court, shall not again be brought in question, by either of the same parties, without leave of the court.”

It would seem, that the words of this section leave nothing for construction, so far as they are applicable to the case at bar. The “ matter in dispute” was heard upon exception to the first account, and finally passed upon by the probate court, and again by the common pleas, on appeal. The “parties ” to that dispute were the administrator and the exceptor, who was the widow. The “matters in dispute” were the items excepted to. These matters wTere heard and determined, as between these parties, and could not again be brought in question by either of them without leave of the court. Such leave was not obtained, nor was there any direct proceeding to vacate or open the former judgment. Under what circumstances the court, hearing a subsequent account, might, as between the same parties, and in a proper application, open up a former order or judgment of this kind, we need not now determine.

The object of this provision of the statute was to change the former rule, which held such settlements only prima facie evidence of correctness (Bank of Muskingum v. Carpenter, 7 Ohio (pt. 1), 23, 71); and to make them final, as between the same parties, when any matter in dispute had been previously heard and determined. Such an order or judgment would not be binding on others, not parties to that dispute. As to those adversely interested, -who had no actual notice of the settlement of a former account, it may he opened up by filing exceptions in eight months; and, upon every settlement, all former accounts may be opened, so far as to correct any mistake or error therein, without regard to the lapse of time. This power to open up a former settlement, to correct errors and mistakes therein, is subject to the exception, that any matter of dispute which hacl been previously heard and determined by the court, shall not again be brought in question by either of the same parties, without leave of the court.

The “ errors and mistakes,” in a previous account, '.'-hich might be corrected on the hearing of a subsequent account, do not embrace errors and mistakes of the court on matters previously litigated, so far as the same parties aro concerned. They have had their day in court. The first account was heard and determined in the court of common picas, March 15, 1869. The matters in dispute, on that hearing, were then properly before that court. The evidence ruled out, on the subsequent hearing of the second, and final accounts, went to the merits of that issue on the first account. It was admissible on that hearing; and, for aught that appears, this evidence, so far as competent, was heard and considered by the court before rejecting these •disputed items. At all events it might have been offered, ■and, if erroneously ruled out, the judgment could have been reversed by a direct proceeding for that purpose. Public policy, as well as this statute, required that litigation should have an end. The parties to that controversy were the administrator, claiming certain credits, and the widow, objecting to their allowance. Upon a full hearing, in which all the evidence now offered was pertinent, the claims were disallowed, the account settled, and a balance found due the estate in the hands of the administrator.

Until reversed, this judgment was final as to these parties to it, unless opened up by the court rendering it.

On a hearing of the subsequent accounts, the probate •court was appealed to, to go behind this judgment of tie common pleas, so far as to correct the alleged errors of that court. Clearly, the pi’obate court could not thus disregard a judgment rendered on appeal from its decision. To do so, would defeat the right of appeal, and render nugatory the mandate of the appellate court, which it was bound to respect and obey. That court did not, therefore, err in refusing to set aside the former order of the appellate court, ,nnd again rehear upon its merits the original matter in dispute.

The power of a probate court, to open up a former settlement can not receive that unlimited construction which would nullify the appellate power of the court of common pleas. Whatever may be the extent of that power over its own orders, made in the settlement of partial accounts, on ■the hearing of subsequent accounts, it is quite clear that it has n; power to open, vacate, or modify the judgments or ■orders of the court of common pleas, on appeal, in the settlement of a former account on the application of either of the parties to the original controversy ; nor as between the same parties, could it disregard, as of no effect, its own former orders, made on matters of dispute between them. Neither was it competent for the court of common pleas, on appeal from the settlement of the second and final accounts, rehear and redetermine upon its merits this original controversy which that court had heard and determined, while that judgment remained in force. As to the same parties it was res adjudicata, unless opened up by leave of the court.

During the progress of the hearing in the court of common pleas, the administrator moved the court to open the order of March 15, 1869, by which these disputed items were charged to him, and assigns for cause, therefor:

“ That said notes were given for sums advanced by the said William Stayner to his children, Thomas Stayner, Susannah Bower, and Maria Ream, and wmre not intended as promissory notes, but as memorandums of the amounts of the aforesaid advancements, and that that question was not made or heard in the said court of common picas on the hearing of said cause at that time.”

This motion was overruled and properly. The claim here made is identically the same as made in the first account, i. e. that these notes were mere memoranda of advance-mints, and not assets to be collected. The statement that that question was not made or heard in the court of common pleas, on the hearing of said cause, on the 15th of Marob, 1869, is contradicted by the special findings made-' at that time, which we have copied, wherein it is expressly found, after hearing the evidence, that they were not advancements. It is true that in that case the court held, as a matter of law, after finding as a fact that those notes were given for corresponding amounts of money received, that parol evidence was not admissible to contradict the express terms of the notes themselves, and, therefore, ruled, out all parol contemporaneous evidence to vary or contradict the notes themselves. If that ruling was erroneous, a proceeding in error would have reversed it. Until reversed,, the judgment was final, and could not be impeached collaterally. That error, if it was such, did not render the judgment-void, but only voidable, and until reversed by a direct pi’oceeding for that purpose, must be conclusive, unless opened up for good cause.

The court did not err in refusing to vacate the former order, for the cause assigned, as that cause — i. e. that the question of advancements had not been considered — was-not true in fact. The administrator sought by this motion to relitigate an issue once heard and determined, and not to open up a former order for any cause for which a court would grant a rehearing. That the court of common pleas had power to open up its former order, is implied by the closing sentence of said section 169. In furtherance of justice, and on proper application, a former account might be opened up.

But for the opinion in Johnston, Ex’r v. Johnston, 26 Ohio St. 857, I should hold, that the application for that purpose, must be made under section 584 of the code. The syllabus of that case holds, that “ section 534 does not confer power on a probate court, to vacate or modify its own orders previously made in the settlement of accounts of executors and administrators.” The reason given for this-conclusion is, that said section relates not to ex parte proceedings, but to adversary actions and proceedings wherein there is a plaintiff and a defendant, and as in the settlement of an account, there are none, those provisions of the code do-not apply. The reasoning of the court would seem to apply equally to the power of the court of common pleas in a like case, and that its order settling a former account could not be opened under the civil code, but must be done by some other form of proceeding. Be this as it may, no cause was •assigned for vacating the former order theretofore made, which, either under section 534 of the code, or under the statutes relating to the settlement of estates, or under the practice at common law, or in chancery, would have warranted such an action. While the power of the common pleas to open up its former order is conceded, where a valid cause exists, yet, in this instance, that court did not err, in refusing to do so, simply to re-try an issue once heard and determined. It was asked, not because of newly discovered •evidence, accident, sickness, surprise, fraud in the prevailing party, or any other cause, usually assigned for such rehearing, but simply, to have a second hearing upon the same evidence, upon the same matters in dispute.

Judgment of the common pleas affirmed, and cause remanded.


text:
    Fox v. The City of Cincinnati.
    Under the act of March 24, 1863 (60 Ohio L. 44), the state granted to the city of Cincinnati, authority and permission to enter upon, improve, and occupy as a public highway and for sewer purposes, a section of one of its canals in said city, between Broadway and the Ohio river, on which there were nine locks for the descent of the water to the river, subject to all outstanding rights and claims, if any, with which such grant might conflict, reserving the revenues derived from water privileges, and on condition that it shall not obstruct the flow of water through said canal, nor destroy or injure the present supply of said water for milling purposes ; and providing that no work shall be done by the city, until the plan of improvement shall be approved by the hoard of public works — Held:
    1. That the lessees of surplus water at these locks, under the laws of the state, in force in 1836, had no such absolute title or vested interest in the premises, nor any such right or claim, as to conflict with the right of the state, to make such grant, though its effeet, and the improvement made, was, to prevent a future supply of surplus water at such locks.
    2. This grant, and the construction by the city of a highway and a sewer along the line of the canal, upon a plan of improvement approved by the authorized agents of the state, which rendered it impossible to use the same for the purposes of navigation, was an abandonment thereof for such purposes, and by operation of law, was a surrender by the state of its incidental power to sell or lease surplus water on the part, so abandoned, not expressly saved by the reservations and conditions of said act, as incidental to the reserved right to flow the water from the canal above through to the Ohio river.
    3. F. was the lessee of the surplus water of lock No. 8 within the granted -section, and owned land adjoining, on which was a factory operated by the power at said lock prior to and until 1855, when the same was destroyed by fire, after which he neither rebuilt nor paid rent, for the nonpayment of which his lease was subject to forfeiture. The state suffered the gates of the lock and the canal to be out of repair, so that for many years prior to the grant to the city, there was no water power there, and the canal could not be, and was not used for purposes of navigation. The plan of improvement approved by the state did not provide for a restoration of such power. Held : That the state was not required by said lease to repair the lock, or restore the power thereat; nor was it liable in damages for a failure to do so; nor did the act of 1863 impose-that duty and liability on the city. The city, by the construction of the highway and sewer according to such plan, is not liable in damages to F., as there was no destruction or injury thereby, to “ the present supply of water for milling purposes,” within the meaning of said act.
    Error reserved in the District Court of Hamilton county.
    The original action was brought by Eox, to recover from the city, damages for the destruction of a certain waterpower, which he claimed to own at lock No. 8 of the Miami and Erie Canal in said city. His title to this water power is. derived from a sale or lease of the same by the state to-Clark 'Williams, dated March 26, 1836, of which he is the assignee. This instrument is denominated a lease, and is,, in its terms, in accordance with the statute then in force, authorizing a sale of surplus water on the canals of the-state, and contains the stipulations usual in such instruments.
    In connection with this water power, Eox owned a lot. one hundred and fifty-five feet on Pearl street, by one hun-drecl and eighty feet on said canal, on which there was a building, machinery, etc., operated by this power. On the '9th day of October, 1855, this building was burned down, .and never after rebuilt, and since then, whatever the power was at that point, there was no machinery there to be moved by it. The acts of the city, by which it was claimed this power was destroyed, consisted in the construction, 'by the city, of an avenue and sewer on that part of the line of said canal, lying between Broadway and the -Ohio river, in said city. This was done under the act of March 24, 1863 (60 Ohio L. 44). Fox claims, that under this act, which granted to the city that part of said canal, ■“ as a public highway and for sewerage purposes,” required that in the construction of such highway and sewer, his power was to be saved for his use, that is, that the grant was subject to his rights under the Clark Williams lease, and was upon the express condition, that in making such highway and sewer, the city should not injure or destroy this water power.
    On the other hand, the city claims that under said act it was authorized to make such improvement, subject only, •so far as individuals are concerned, to the saving of “the present supply of water for milling purposes,” and not subject to any liability to lessees generally of such power, much less to save and protect an unused or abandoned power, such as it is claimed this was, and had been for several years. This grant by the state was accepted by the city, and on August 28, 1863, the city, in pursuance of the .act, submitted a plan for the proposed improvement to the board of public works. This “ plan” sought to provide for •the flow of water from the canal above, through the proposed sewer to the river, and to save the present supply of water to such lessees of power on that part as were then using water power. This plan made no provision for supplying surplus water at lock No. 8 to Fox, but wholly ignored the existence of such power, if any there was, at that point. It proposed to provide for sewerage for the ■whole area then drained by the Beer creek sewer, and also to furnish, an avenue from Broadway to the river, “ allowing the water rights and privileges to remain to the lessees.”
    It provided for the construction of a sewer, so as to carry off all the water from the canal above, as well as surface and other drainage, making use of lock walls whenever it could be done. Commencing at the river, the plan was to carry the sewer by regular inclinations to the level of loekNo. 7, where this sewer would receive all the water of the canal passing the mills above. This regular inclination up to lock No. 7, passed by Box’s property and destroyed the level that had existed at lock No. 8, when in repair, and prevented any further use of that part as a canal lock or as a means of accumulating surplus water.
    The several lessees of power at the locks above Third street wei’e by the plans to be protected in the future use of water as then supplied for milling purposes. This “ plan ” was accepted by the board of public works in these words: “as far as regards its general features, reserving the right to approve or disapprove any details of construction which may in any way affect the interests of the lessees of waterpower; and that while the work of coi>struction may be commenced at any and all points below Third street, there shall be no work done above Third street until further examination with a view of settling details.” There were nine locks between Broadway and the river. At those the state was then supplying water, the plan provided for continuing the supply. In accordance with this approved plan, the city took possession of the canal, and constructed the highway and sewer, doing away with the lock at that point, thus rendering it impracticable to furnish water to plaintiff if he should ever be in a condition to use it.
    The question presented is, was it the duty of the city to make this improvement in such way as to provide for a head of water at lock No. 8? Box became the owner of the lease of power at this point in 1840 and 1844, and about that time granted a sub-lease to one Giesendorf, who, In 1849, replaced a former building in which this power had been used, by a large cotton-factory, which he operated until October 9, 1855, when it was burned down, and never rebuilt.
    In October, 1855, Giesendorf re-transferred this power to Eox, who now claims to hold the same as a subsisting contract with the state. The evidence is that for a long time prior to and at the time the city accepted the grant and made its improvement, this lock had been out of repair, and that part of the canal unused for purposes of navigation ; that there was no building or machinery at that point, and no surplus water.
    The stone work or the lock was there, but the lower gates were unshipped, and the head gates so rotted away that all the water passed through.
    Eox says the property he owned, that is, this ground -where the cotton-factory stood, was not used, because he was not able to rebuild, and that he paid no rent, nor offered to pay any, because the state had no surplus water then to furnish him, and he never offered to pay rent until the state attempted to forfeit his lease, after the title had passed to the city.
    Wirth, the city engineer, who made the surveys and the “ plan of improvement,” says : “ It was intended to protect the rights of lessees of water power. . . . Ve did not protect Eox’s power, because we supposed there was none.”
    R. C. Phillips says: “After the destruction of Giesendorf’s building (1855), the water power was left to go to waste. There was no navigation after 1860.” Also, that in 1860 the gates were in a state of dilapidation and decay. In 1856, a stone wall on the side of the canal opposite and above Eox’s property fell into the canal, which prevented its use for navigation, and was not removed.
    The record is quite lengthy, raising many questions of law and fact during the trial in the court below, but the foregoing, in connection with the facts stated in theJSleoator case, 30 Ohio St. 629, is sufficient for an understanding of the legal points upon which the decision rests.

      Numerous questions of law are raised upon the charges-to the jury and the refusal to charge. In the view taken in the decision of the case, it becomes unnecessary to state them in detail.

      Jordan $ Jordan and Charles Fox, for plaintiff in error.

      Bates, Perkins § Goetz, for defendant in error.
   Johnson, Chief Judge.

It is conceded that the city, by the construction of the avenue and sewer, has rendered it permanently impracticable to again have or use surplus-water power covered by the Clark 'Williams’ lease, at the-point owned by Eos.

The only question we shall consider is: Has the city, by its improvement, rendered itself liable in, damages to the-plaintiff? The act under which it accepted the grant of that part of the canal, is as follows (60 Ohio L. 44):

“AN ACT to authorize the city of Cincinnati to enter upon and occupy a part of the Miami and Erie canal as a public highway and for sewerage purposes.

“ Sec. 1. Be it enacted, etc., That authority and permission shall be granted, in the manner pointed out, to the city of Cincinnati, to enter upon, improve, and occupy forever as a public highway and for sewerage purposes, all or any of that part of the Miami and Erie canal which extends from the east side of Broadway in said city to the Ohio river, including the width thereof as owned or held by the state; but the said grant shall be made subject to all outstanding rights or claims, if any, with which it may conflict.

“ Provided, that no work shall be done by said city authorities on the premises hereby granted, until the plan of improvement shall be approved by the board of public works.

“ Sec. 2. The said grant shall not extend to the revenues derived from the water privileges in said canal, which are hereby expressly reserved.

“And the said grant shall be made upon the further condition that the said city, in the use, as aforesaid, of all or any of said portion of said canal, shall not obstruct the flow of water through, said canal, nor destroy nor injure the present supply of said water for milling purposes; and •that said city shall be liable for all damages that may accrue from such obstruction or injury. But it is not intended hereby to relieve the lessees of said canal, or their assignees, from any responsibilities imposed upon them by an act to provide for leasing the public works of the state, passed May 8,1861; or by the instrument of lease executed in pursuance of said act; except as and to the extent they .may be interfered with, as said city may, from time to time, <enter upon, improve, and occupy any part of said grant.”

In the case of The Little Miami Elevator Co. v. Cincinnati, 30 Ohio St. 629, we had occasion to examine and comment ■on the provisions of this act at some length. Upon a review of what was then said, so far as affects the present •question, we are content with the construction there given this statute. It was there held that the reservations and ■conditions annexed to the grant to the city were not intended to reserve to the state, nor to the lessees of the public works, the right, after that part of the canal had been .abandoned by the state as a canal, and after the title had vested in the city, to create new water rights not theretofore .-existing; and that this grant, and the construction of the highway and sewer upon a plan of improvement approved by the board of public works, which destroyed the canal ■for purposes of navigation, was an abandonment of it for .such purposes, and this by operation of law was a surrender by the state of the incidental rights of the state to sell or lease the surplus water along the part so abandoned, not •expressly saved to lessees of water privileges as outstanding rights or claims under contracts existing at the time of such rabandonment. Hence it was held, upon the facts in that •case, that a sale or lease of surplus water, after such aban■donment, and after the title and possession had vested in •the city, could not operate to vest in the grantee any right to compel the city to so construct its improvement as to •preserve such water power for the use of the purchaser or lessee. In reaching that conclusion, it became necessary to •consider the legal effect of the reservations and conditions of the act, that the grant “ shall be subject to all outstanding rights or claims, if any, with which it may conflict,” and that “the said grant shall not extend to the revenues derived from the water privileges in said canal, which aro hereby expressly reserved,” and that in the use of said canal the city should not “ obstruct the flow of water through said canal, nor injure nor destroy the present supply of water for milling purposes,” and should be liable “ for all dam.ages that may accrue from such obstruction or injury.”

Upon these provisions we restate what was then incidentally said, that some of these provisions looked to the rights and interests of the state, such as the saving of the revenues and the flow of water from above through the .sewer; some to the interests, if not to the rights of the then lessees of the canals, and some to the rights and equities of the lessees of water power, but that none of these reservations or conditions contemplated the future use by the state of that part of the canal for purposes of navigation, but only to flow water through ; nor did they save to the state the surplus water power not theretofore leased or granted.

It was further said that the intention was to protect existing rights, if any, of lessees of water privileges, and make the city liable for damages to them, as well as to the ■state, or its lessees, for the obstruction of the flow of water from Broadway to the river.

"We further add that it is also a condition of said grant that the city should not injure or destroy “the present supply of water for milling purposes,” and that it “ shall be liable for all damages that may accrue from such obstruction or injury,” and that these provisions are for the benefit of individuals injured as well as for the state.

TIence it follows that if Eox had rights there which were saved, he is entitled to maintain this action; that is, if it was the duty of the city so to construct its sewer as to provide a head of water at that point equal in quantity and power to that furnished before the factory burned down in .1855, then the city is liable; otherwise, not.

That clause of this statute which says, “but the said grant shall be made subject to all outstanding rights or claims, if any, with which it may conflict,” has already received a judicial constructiou which we adopt.

In Hubbard v. Toledo, 21 Ohio St. 379, it was held “that, the abandonment of her canals by the state creates no liability on her part to respond in damages resulting therefrom to parties holding leases of surplus water,” and that the liability of the city, provided for in the clause above quoted, is restricted to those rights and subjects for an injury to-which a legal demand would accrue against the state, resulting from such abandonment; that is, that the city was substituted for the state, and made to assume such liabilities as the state would have been liable for by reason of the-abandonment.

It is there said, on page 398: “ But the abandonment of the canal by the state has the same effect upon their privilege as would a resumption of the grant. Since, then, the consequences of resumption and of abandonment are identical, it is incredible that a liability should arise by implication from the latter, which, by express negation, can not from the former. If it were otherwise, the state would be compelled to maintain her canals, at any sacrifice, for the exclusive benefit of the lessees of the surplus water. This can not be. The creation of water power did not enter into the purpose of their construction. It was adventitious, incidental, and, therefore, necessarily precarious; and those obtaining grants thereof must be supposed to have taken them subject to the fluctuations of tides and the changes of time. Hence, it seems to us to have been the-obvious intention of the law, and of the lease under it,

. . . that the privilege granted to the plaintiffs should continue for such p>eriod, not exceeding that specified, as the state might see proper to maintain and operate the canal, unless sooner terminated for some of the reasons, specified in the statute. In this view, we are sustained by

. . . 25 Ind. 409. . . . The result, then, is that, if as above assumed, the liability of the city was by the •statute restricted to, and substituted for, that of the state, it follows that, as no legal demand accrued to the plaintiffs .against the state, they can not recover against the city.”

And, on page 399: “ Hence, as whatever claims or rights 'plaintiffs had under their lease might be lawfully terminated by an abandonment of the canal, such abandonment could not, in any legal sense, conflict with them. It was only rights and claims that might not be lawfully terminated by the state, with which a conflict was possible. . . The plaintiffs’ lease did not vest in them such claim or right. They had a mere license, which the abandonment extin.guished;”

The injury complained of, in that case, was the abatement of an aqueduct on the Manhattan branch of the Miami and Erie Canal, which conducted the water to the plaintiffs’ mill. He was the owner of an existing water privilege, used in operating his mills, and this abatement •of the aqueduct destroyed his water power. His injury ■was to existing mills, that were using a present supply of water. Eor this reason, the case is stronger than that of the present plaintiff.

The above quoted clause from the Cincinnati act is identical with the clause in section 1 of the Toledo act. Hence, the grant to the city was, under this clause, subject only to -such outstanding rights and claims of Eox, as he would have had against the state for the abandonment of that part of the canal, and for the refusal to keep in repair that lock, so as to keep up a water power.

The lease under which Eox claimed provided (29 Ohio ,L. 380) for the resumption by the state of the surplus water, whenever needed for navigation, and the rent to be paid, or ■a reasonable part should be remitted or refunded for the time the lessee was deprived of water. The state evidently contemplated a permanent use of the canals, if public policy required their maintenance, but the right of the state to -abandon them, or to resume the grant, was not abridged or ¡surrendered by the lease, though it was in perpetuity.

Neither party to the lease, doubtless, contemplated the probability of the abandonment of the canal for purposes-of navigation. That it would continue to be used as a canal, seems to have been so confidently relied on, that the-lease contains no provisions providing for a different event. The lessee required from the state no stipulations for his-security, in the event of such an abandonment, and none-were inserted.

The lessee took upon himself the risk of such an event, whenever the state, in the exercise of its sovereign power, deemed it for the public welfare that the canals should not be kept up. The lease expressly provides for damages for a non-supply of water, when it is necessary for navigation,, but makes none for damages for non-supply in other cases.

The exercise of the reserved right of the state to abandon the canal, and thus cut off' permanently the supply of surplus water, created no obligation, on the part of the-state, to respond for damages to a lessee; and if none existed against the state, none was imposed on the city by accepting the grant. The right or claim that did not subsist against the state did not accrue against the city.

As the state was under no obligation to keep up and in repair the canal and locks, but might abandon it, no obligation was imposed upon the city, by this clause of the act, to repair this lock, and restore the original supply of water,, as it had existed in 1855. Hubbard v. Toledo, 21 Ohio St.. 379; The, Trustees v. Brett et al., 25 Ind. 412; Fishback v. Woodruff, 51 Ind. 102.

We will assume that it was competent for the state to require that the city should repair and maintain this lock, so as to provide surplus water for the plaintiff. Yet, in view of the fact that this lock was out of repair; that there-was no head of water there, nor any machinery to utilize-it, if it were; that no revenues had been derived from it for many years; that, by the terms of the lease, the state-might- forfeit the lease for non-payment of rent; and that the state had ceased to keep it in repair or to use it to pass boats through, renders it extremely improbable that the-state intended to protect this water power.

After the state ceased to use this lock to pass boats through, it was under no obligation to keep it up for the sole purpose of supplying water to the lessee. The power of the state to exact such a condition might well be doubted, but, if it exists, it should be expressed in such clear and unambiguous language as to admit of no uncertainty. We-assume, further, that the state has the power which is clearly expressed, to save the present supply of water for milling purposes, so long as it retains the use of the canal to flow water through from above, as incidental to the continued public use of the abandoned part as an outlet for the water of the part not abandoned.

At this lock, there was not, nor had there been for many yeai’S, any surplus water, nor any revenues derived from water privileges. After the factory burned down, it was allowed to be and remain out of repair and unused for many years. The state had the clear right to proceed, if it did not, to forfeit the lease. In this condition of things, the grant was made, and the improvement made, which operated as an abandonment for public uses, reserving to the state only the revenues derived from water-privileges, and the right to flow water through.

That the state could make such a grant, without any reservations or conditions in favor of lessees, is settled in Toledo v. Hubbard, supra.

Unless, therefore, the rights of Eox are saved by the conditions named in the secoud section of the act, and the city has violated these conditions, he has no right of action.

II. But it is claimed, that while the state may not be liable, nor the city either, for the mere vacation and neglect to keep the lock in repair, yet it has made itself liable by the improvement which makes it impossible to ever repair said lock; that by section 2 of the act it was made a condition that the highway and sewer to be constructed should not destroy or injure the present supply of water, etc.

To this we reply : 1. That these conditions, found in section 2, are in derogation of the grant, and embrace only those rights by clear intendment included in the terms; 2. That the reservation of the revenues derived from the water privileges in said canal, and the inhibition against the destruction or injury to the present supply of water for milling purposes, can, by no reasonable interpretation, be extended so far as to compel the city to restore a water power, where none existed when it accepted the grant, and to restore revenues to the state from a lease under which none had been derived for many years.

By the grant, the city took the canal as it then was, without any obligation to repair water gates and locks, and restore a head of water where none existed, unless such obligation arises by reason of these conditions.

The highway and sewer were to be constructed on a plan that would not obstruct the flow of canal water through the sewer, and would not destroy nor injure the present supply of water for milling purposes; reserving, also, the revenue derived from water privileges. The city was not bound to restore water power that the state had refused to restore, nor to repair locks and gates. The grant did not contemplate this, nor did the authorized agents of the state require it, when they approved the plan of improvement.

These agents, the board of public works, sought to save existing revenues derived from the present supply of water, and to provide for the flow of water from the canal above. They assumed, as well they might, that Eox had forfeited or abandoned his lease, or that the state had, by this act and grant, abandoned that part of the canal, and relieved itself of the duty of repairing and maintaining this lock.

Indeed, it would be strange if the state should be anxious to save any dormant rights of Eox derived from the Williams’ lease. He had paid no rent for many years. He had not rebuilt the factory, and had no machinery to utilize any surplus water the state might have for sale, if the proper repairs had been made.

The state, in the proper exercise of its discretion, elected not to repair the lock, and authorized the city to destroy it, by converting that part of the canal into a sewer. By this, no surplus water, nor present supply of water for milling purposes, was cut off or destroyed, for none then •existed.

We may concede that Fox had, in the absence of a forfeiture, a claim to all surplus water that the state should ever thereafter have at that point; but, as that claim imposed no obligation on the state to keep in repair the canal for the sole purpose of supplying him with surplus water, its grant to the city, for a use which rendered such repair and future supply impossible, did not invest Fox with a right against the city which he did not have against the state. Indeed, as was said in the Elevator case, such a reservation would be an intolerable burden upon the grant in all future time, and can not be predicated upon implications •or inferences founded on a doubtful construction of the act, especially when it is perfectly obvious that neither the,city, when she accepted the gift, nor the board of public works, when it approved the plan of improvement, contemplated the creation of new water privileges and new sources of revenue.

At this lock all was dilapidation and decay. The state had no surplus -water to sell, and Fox had no use for any if any had been for sale. The state had for years derived no revenues from this lease, but allowed the canal to remain unused, either for purposes of navigation or revenue .at this point. The conditions of the grant, so far as lessees of surplus water were concerned, saved only the rights’ and claims of those having a right to a present supply of water.

As Fox had ceased to use water in 1855, and had paid no revenue to the state, it might, without semblance of bad faith, treat the lease as at an end, and exercise its conceded right, to allow the lock to remain out of repair, and abandon its use. This is the legal effect of what was done. No legal injury would result to Fox. by this. Neither would such injury result by an abandonment of the canal to the •city for other public uses. So that, unless Fox’s claim is -within the saving clauses or conditions of the grant, he can Lave no cause to complain. If the city, in making its improvement, obstructed the flow of water through this section, or destroyed or injured the present supply of water for milling purposes, it would be liable for such obstruction or injury.

Upon the admitted facts, the city has not destroyed or injured any present supply of water for milling purposes belonging to Fox. Therefore he has no cause of action^ for damages against the city, under the act of 1863.

Judgment affirmed.


author: Ashburn, J.

text:
    Lytle v. Boyer.
    The charge of the court to the jury should be founded on and be applicable-to the issues and testimony in the case; and where a party requests the court to give a specific charge to the jury material to a question in the case and substantially correct, and the court refuses to give the charge requested, and wholly neglects to instruct the jury as to the law applicable to such question, error intervenes, for which the judgment will be-reversed.
    Error to the District Court of Shelby county.
    Lewis Boyer, plaintiff' below, defendant in error, brought an action against B. Slusser, Isaac Miller, and Edmund Lytle, upon a promissory note, of which the following is a-copy:
    “$1,000. Sydney, Ohio, June 4,1870.
    “ Six months after date, we, or either of us, promise to-pay to Lewis Boyer, or order, one thousand dollars, with-interest from date at eight per cent, per annum, for value received. B. Slusser,
    Isaac Miller,
    [50 cent stamp.] Edmund Lytle.”
    Slusser and Miller filed a joint answer to the petition, and such proceedings were had in relation to the answer-that it was stricken from the files. No further defense was-made by Slusser and Miller, nor by either of them.
    Edmund Lytle, plaintiff in error, defendant below, filed his separate answer. As a defense, he alleged that plaintiff* ought not to have his said action upon the note in this case sued upon, for this, to wit: That the sole and only consideration for the said note was the loan by the plaintiff* to the-defendants of the sum of $1,000 for the period of six months, from and after June 4, 1870; that said plaintiff" failed to make said loan to said defendants, or any part of the same; wherefore said note is wholly without consideration.
    Boyer replied, denying that the note in plaintiff’s petition set forth was given for a loan of money, or was without consideration, but says it was given, with others, forth© purchase of his, defendant’s, interest in the Excavator and Sulky Plow Manufactory, of Sidney, and the territory belonging to the firm of Slusser, Miller, Boyer & Lytle, and. the business connected therewith, and for no other or different consideration.
    On the issues thus made, a trial was had to a jury, which resulted in a verdict for Boyer. Lytle made a motion for a new trial, which the court overruled; whereupon Lytle perfected a bill of exceptions, which brings in review the-testimony given on the trial, the charges requested and refused, and the general charge of the court, etc.
    Defendant, Lytle, presented to the court a number of requests, to be given in charge to the jury on the power and authority of Slusser, as the agent- of Lytle. These the court refused to give, and Lytle excepted. The requests which the court refused to give, and which are of importance to-the question decided, appear in the opinion.
    In the district court the proceedings and judgment of the-court of common pleas were affirmed.
    The material errors assigned in the district court were : 1. That the court of common pleas erred in refusing to instruct the jury, as requested by the defendant below; and,,
    2. In overruling his motion for a new trial.

      It is assigned for error here that the district court erred in affirming the judgment of the court of common pleas.
    Such facts in the case, shown by the testimony, as are ■deemed material to an understanding of the question decided, will be found in the opinion.

      J. S. Conklin and Thompson § Mathers, for plaintiff in ■error.

      Murray $ Wilson, for defendant in error.
   Ashburn, J.

Two issues are made by the pleadings. One on the averments in the answer denied by the reply; the other by the new matter alleged in the reply.

So much of the general charge of the court as relates to the issues made by the pleadings is confined exclusively to the issue made in the answer, and if this was the only issue and presented the only question material in the case, the •charge would be unexceptionable. ¥e think there were other issues and material facts in the case, made by the pleadings and testimony, not alluded to in the general charge, and which would have been, in a measure', covered by some of the requests asked by defendant below and refused.

This will more clearly appear by a statement of some of the prominent facts in the case. The new matter averred in the reply was a consideration for the note different from that alleged in the answer, and, as the case was developed by the evidence, involved the authority of Slusser, as the agent of Lytle, to bind Lytle on the purchase of Boyce’s interest in the firm properly.

In 1870, a firm, composed of B. Slusser, Isaac Miller, Louis Boyer, and Edmund Lyt-le, were the owners of a patent right for a new and improved sulky-plow, and also •of certain real estate in the town of Sidney, in Shelby county, Ohio, and, as such partners, were actively engaged in carrying on the manufacturing business of the firm. In June, of that year, the firm was in debt — embarrassed for money — and must close unless funds were obtained shortly. The personal relations of Lytle and Boyer were unfriendly,, so that they were not on speaking terms. At this juncture,. Lytle told his partner, Slusser, they must raise funds or stop business. Slusser told Lytle he thought he had found a man, named Totten, residing at Lebanon, who would buy Boyer’s interest if Boyer would sell. With the consent of Lytle, Slusser saw Boyer, made an arrangement for him to-deed his interest in the real estate of the firm, and assign, his interest in the patent right to Totten. He did so. It ay as arranged through Slusser that Lytle should send the-deed and other papers to Totten, receive the purchase-money from Totten, and use it in paying the debts of the firm. Slusser, Miller, and Lytle executed their time notes,, one of which is the note sued on, to Boyer, and left them with one Hale to be stamped and delivered to Boyer.. During this transaction, Lytle and Boyer had no communication save through Slusser. The deed and papers were-sent by Lytle to Totten, \A’ho declined to receive them, and returned them to Lytle.

Thus matters stood until October, when Slusser returned-from the west, where he had gone immediately after the supposed arrangement Avith Boyer. Slusser and Lytle-Avent to see Totten, but could affect no arrangement Avith him. BetAveen the first and fifth of October, at Slusser’s request, Boyer executed a deed to his co-partners for his interest in the firm property. Lytle testifies that he never-thought of purchasing Boyer’s interest; that it was funds-they wanted, not property. Says substantially that he signed the note to raise money, never intending it to be-used in buying the interest of Boyer for the firm.

We find no testimony in the record directly showing-that Lytle authorized Slusser to purchase Boyer’s interest for the firm, or that he enlarged Slusser’s authority after Boyer had executed the first deed to Totten ; nor that he-directly affirmed the' purchase after it was made. Yet there is testimony tending to shorv that Lytle, at sometime,, spoke of Boyer as being out of the firm, and expressing a- ■ determination that he should never again become a member of it, etc.

Tp raise a consideration for the note, Boyer relies upon .a sale of his interest to his copartners. That his interest was transferred to them is evident. When or by what authority it was purchased does not so clearly appear.

Slusser, as a member of the firm, had clearly no authority to buy ont Boyer and charge his copartners without •their express consent or subsequent ratification, because ¡such transaction was not germain to the business of the firm. Lytle denies conferring such authority on Slusser.

If it should be made to appear that he did, then he is bound by the acts of his agent, otherwise not.

As Lytle denies the purchase ; denies the power of Slus-.ser to bind him; and denies that he executed the note to 'be used in the purchase of the interest of Boyer for him, the authority of Slusser in that behalf, as affecting the consideration of the note, was a material fact, in the case, for the determination of the jury, under proper instructions as to the law.

It was in this view of the questions in the case, that ■ defendant below requested’the court to charge: “That even if the jury believe, from the evidence, that Slusser did purchase the property for himself and Lytle and Miller, yet if the jury believe, from the evidence, that Lytle ■ did not authorize him to do so, Lytle is not bound by such purchase. That if the jury find that in the contract and arrangement, which resulted in the giving of the note in ■suit, the business between Lytie and Boyer was done by Slusser, and that said Slusser had no authority, as a general agent, from said Lytle, beyond that resulting from their relation as general partners in the manufacture of plows, but only an authority to do that particular business, he (Slusser) would be, as far as this case is concerned, a special agent of Lytle in that business, and so far as the jury find that he (Slusser), in doing it, exceeded the authority and instructions given to him by Lytle, Lytle would mot be bound.”

The court refused, and did not give their substantial •equivalent in the general charge. The instructions asked may not be in the best possible form, yet they pertinently •called the attention of the court to a material question in the case, upon which the defendant below had the right to have the jury instructed. As the court refused to give the instructions, as requested, which were substantially correct, and failed to instruct the jury on a material question in the case, we think the court erred.

Other questions are made on the record, and discussed by counsel; but we do not find that other error intervened, in the action of the court of common pleas, to the prejudice of the plaintiff in error.

The judgment of the district court, affirming the judgment of the court of common pleas, is reversed; and this court, now proceeding to render the judgment that the district court should have rendered, adjudges that the judgment of the court of common pleas be, and the same is, reversed.