text:
    Lessee of G. N. Hunt v. John McMahan.
    The occupying claimant law of Ohio is constitutional.
    This cause came here from the coun ty of Butler, on exceptions to the report of commissioners appointed to value improvements.
    The plaintiff recovered in ejectment, and, on the motion of the defendants, commissioners wero appointed to value the land and the improvements under the statute of the state. The land recovered was one hundred and six acres and two-thirds. The commissioners certified that the improvements consisted of seventy acres of cleared land, divided into fields by worm fences, containing about fifteen thousand one hundred and thirty rails; a two-story frame house, twenty by twenty-five feet; a logo abin, two wells of water, two log corn cribs, a wagon shed, and one log barn, which they valued at one thousand one hundred and twenty-eight dollars and thirty-five cents, subject to no deduction for waste. The land in an unimproved state, they valued at six hundred dollai’S. The defendant excepted to the valuation on the single ground that the statute, commonly called the occupying claimant law, was unconstitutional.
    ^Pendleton, in support of the exceptions.
    Corwin and Collet, contra.
   Opinion of the court, by

Judge Wright:

After a verdict of guilty in this case, the defendant applied, under the occupancy claimant laws of Ohio, to have the value of his improvements assessed by three freeholders. The report of these freeholders being filed, it is objected to by the plaintiff because-the occupying claimant law contravenes section 8, of article 8, of the constitution of Ohio, which is in these words : “ The right of' trial by jury shall be inviolate.”

The counsel for the plaintiff rely upon the decision of the Supreme Court of the United States in the case of Green v. Biddle, 8 Wheat. 1. That ease determined that the occupying claimant act of Kentucky of 1812 impaired the obligation of the compact, between that state and Yirginia, of 1789, and so infracted the provision in the constitution of the United States prohibiting the-passage of a law impairing the obligation of contracts. The very-able judge who delivered the opinion of the court in that case, in reasoning upon the occupying claimant laws of Kentucky, does indeed determine it to be incompetent to the State of Kentucky,, or even the judges of the United States court, by rule, to introduce into the courts of the Union changes affecting a fundamental right incident to remedies in its courts of law, but he leaves untouched the question how far the legislative power of the state was adequate to effect this change in its own courts.

The occupying claimant laws of Ohio came under the consideration of the same court ih the case of the Bank of Hamilton v. Lessee of Dudley, 2 Peters. ,In that case the court concede that the state has the power to secure to claimants of lands their possessions until paid for lasting improvements made by them on the land, but denies the power of the state, by ,its enactments, to “change radically the mode of proceeding prescribed for the courts of the United States, or direct those courts in a trial at cornmon *law to appoint commissioners for the decision of questions which a court of common law must submit to a jury.” Such a proceeding the court suppose would conflict with the clause in the constitution of the United States, which declares that “ in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” It appears to us obvious that the provision of the constitution just quoted applies only to the courts of the United States, and does not prescribe a rule of practice for the courts of a state. In that case, the courts expressly determine that “the inability of the courts of the United States to proceed in suits at common law in the mode presented by the occupant law of Ohio does not deprive the occupant of the benefit intended him. The modes of proceeding which belong to courts of chancery are adapted to the execution of the law, and to the equity side of the court he may apply for relief. Sitting in chancery, it can appoint commissioners to estimate improvements, as well as rents and profits, and can enjoin the exeoution of the judgment at law until its decree shall be complied with and that on the chancery side of the United States courts the law can be executed. We understand this decision as affirming the" constitutionality of the law so far as it provides for the relief intended to the occupant, but that it is incompetent for the federal courts under the constitution of the United Stales to afford the relief or ascertain the damages, on the law side of those courts, by commissioners instead of a jury. We think the constitution of 'Ohio interposes no such restriction upon the action of this court.

This opinion renders it unnecessary to inquire what a jury is in the meaning of the Ohio constitution, or whether it consist of twelve, or any other number of persons. The late Judge Wilson, in his Lectures on Law, 2 vol. 300, defines a jury to be “ a convenient number of citizens, selected and impartial, who, on particular occasions, or in particular causes, are vested with discretionary powers to try the truth of facts on which depend the property, the liberty, the reputation, and the lives-of their fellow citizens.” Mr. Jacobs, in vol. 3 of his Law Dictionary, 566, says a jury is “a certain number of men sworn to inquire of and try a matter ■*of fact, and declare the truth upon such evidence as shall be given them in a cause, and they are sworn judges upon evidence in matters of fact.” We are not aware that we shall profit in the pursuit of this inquiry further.

The constitution of Georgia, in article 61, declares “the trial by jury shall remain inviolate forever.” In the case of Cooper v. Telfair, 4 Dallas, 16, the Supreme Court of the United States decided that an act of the legislature of Georgia of attainder and confiscation against one of her citizens was constitutional, though no jury intervened. If this be law, little difficulty will be experienced in awarding to the Ohio legislature, under our constitution, power •to pass the occupying claimant law. Indeed we are unable to discover wherein the law of Ohio conflicts with the constitution of Ohio. Were we to decide otherwise, there is a series of legislative acts, commencing with the organization of our government and continuing to this time, that we should be compelled to declare void. We allude to enactments providing juries in cases of forcible entry and detainer, for the trial of the rights,of property, for the assessment of damages where private property has been taken for public use, for inquiry in cases of idiocy, lunacy, etc. Upon the principle assumed all these are contrary to the constitution, and all rights acquired under them are void and of no effect. To sustain such a decision we should have unquestionable authority and a firm conviction that the constitution has been clearly violated. The case in hearing is not one of that kind.

It follows from this opinion that the objections filed to the report of the commissioners in this case are overruled.


source: Caselaw Access Project

author: Judge Hitchcock:

license: Public Domain

text:
    *Joseph Westerhaven v. Jacob Clive.
    , The fact whether a constable’s official bond was received or rejected, may be proved by parol, where no written entry is made concerning it.
    The admission of evidence pertinent to any point in a case is not error, though the court admit it for a wrong reason.
    Constable’s official bond, given after the expiration of ten days from his appointment, is not void. Such a bond found in the office is not, therefore,, a matter of record.
    This cause came before the court upon a writ of error toa judgment, of the court of common pleas of Hocking county, and was-adjourned here for decision by the Supreme Court sitting there.
    The original case was this: An action of debt was brought in the name of the State of Ohio, for the use of Jacob Clive, against Joseph Westerhaven. The declaration counted upon a bond mad» by Joseph Westerhaven and others, on May 2, 1826, conditioned, that if Simon Decker should well, truly, and faithfully discharge the duties of constable for the township in the year 1826, etc. The declaration averred that Decker held the office of constable for the year 1826; that on May 20, 1826, an execution was put into his hands, in favor of Clive, against one Burt; that Decker refused and neglected to levy upon property to make the money due on the execution; that for this default Clive recovered judgment against'Decker, upon which execution had issued and return made that nothing could be found to satisfy the same.
    The general issue of non est factum was pleaded, with a notice. This notice set out that Docker was elected constable, but did not give bond within ten days, whereupon the trustees appointed another person to the office of constable; that if defendant ever did give bond for Decker, it was with other obligors than those-named in the bond declared upon; that the bond declared upon never was delivered to the clerk of the township, and by him. received as defendant’s bond; and that the same never was approved of by the trustees. Yerdiet and judgment for the plaintiff.
    At the trial the plaintiff offered in evidence the record of the-judgment, Clive v. Decker, which was objected to, but received. Defendant excepted.
    Plaintiff then gave in evidence the township record, containing-the subjoined entries: “April 16, 1826. Ordered, that Horae» Stone and Samuel Alexander be appointed and *serve as constables for said township the present year, and that they be notified of their appointment by the township clerk.”
    “May 2, 1826. Simon Decker gave bond as.constable, in the-sum of six hundred dollars, with Joseph Westerhaven, T. W. Claxton, W. Wallace, and J. W. Coffinberg as sureties — bond filed the same day.”
    Whereupon the defendant offered to prove by the individuals-who were trustees at the time, that the bond declared upon was-never accepted by them, but absolutely refused and rejected. The-plaintiff objected to the admission of this testimony, and the court rejected it. The defendant excepted.
    The evidence being closed, the defendant moved the court to instruct the jury, that the bond not being given within ten days-after the election, and a new appointment having been made, there-being no evidence of the reappointment oí Decker, he could not be held a constable, and the bond was not obligatory; that the township record showed that Wallace was a surety, in the bond accepted, and his name not being on the bond declared upon, it-did not appear that the bond declared on was the one on which Decker acted as constable.
    The court refused to give all the instructions asked for, and the-defendant excepted. The errors assigned were predicated upon these different exceptions.
    Olds, for plaintiff in error,
    cited 3 Ohio, 487; 2 Ohio, 348.
    H. Stanbery and Hunter, for defendant in error,
    cited 14 Mass.-167.
   Opinion of the court, by

Judge Hitchcock:

Sundry errors are assigned in this case:

I. That the court of common pleas erred in admitting, under-the state of the pleadings, in evidence of the breach, *is the declaration assigned, the record of a judgment in favor oí said Jacob Clive against Simon Decker.

It is not denied that this record was a proper item of evidence, but the objection is that it was admitted for an improper purpose.

This objection is not well taken. If evidence is proper for any purpose in a case, it should be admitted, and it is immaterial whattreasons are assigned by the coart, when it is received. That this ■record is proper evidence to show the amount which the plaintiff is entitled to recover, provided he has any right, there can be no -doubt. If, in the charge to the jury, the court had directed them that this was an item of evidence to prove the breach in the declaration assigned, and this had been spread upon the record, the question which the counsel for the plaintiff in error wishes to raise, would have been fairly presented to the court. But nothing •of this kind appears. Upon this assignment, then, we can not reverse the judgment.

2. That the court erred in rejecting the testimony of the trustees, to prove that the bond declared upon had been by them disap•proved and rejected. The law requires that a constable shall give -bond with sureties, to be approved of by the trustees of the- town■ship. This law ought to be complied with, but we are not prepared to say, that if a bond be delivered to a township clerk, and by him filed away, that such bond would not be obligatory, without proof of its having been approved by the trustees. When, ■however, a bond is presented to the trustees, and by them rejected ■and disapproved of, it is clear that such bond can not be held obligatory. The sureties are discharged. Can this disapproval or ■rejection be given in evidence? The court of common pleas rejected this evidence upon the principle that the official acts of the trustees must be proved by the record of the township alone. We do not believe that these records are of that absolute verity, ■that any person shall be estopped to show the truth, in consequence of any matter which they contain. We are of opinion, ■therefore, that in rejecting this evidence, there was error.

3. That the court erred in refusing to charge the jury as requested by the plaintiff in error. And,

*4. That the court erred in charging the jury that the bond "itself became matter of rebord, etc.

There can be no doubt but that after the ten days had expired,' Decker having failed to give bond, it was the duty of the trustees ¡to consider the office as vacant, and appoint another person to •fill the office of constable. This was done; but up to the time ■the bond in suit bears date, neither of the individuals thus appointed had complied with the law by executing bond. If, then, the trustees Lad accepted this bond, it would have been, on their part, a ratification of the appointment of Decker, and the security would have been holden. The mere circumstance that the bond is executed after the ten days have expired is not sufficient to* vitiate it. So far, then, as respects the first and third instructions-of the court, we think they might well be refused.

As to the second instruction requested, it should have been.' given. From the township book, as shown by the bill of exceptions, it appears that on May 2, 1826, Decker gave bond as constable in the sum of six hundred dollars, with the same persons named in the bond now in suit, together with fm. Wallace, as-sureties. It can not, with'propriety be said, that a bond found in the office of the township clerk, years afterward, became so far a-matter of record as to control this entry of May 2, 1826.

In refusing the instruction stated in the second particular, and in declaring the effect of filing bond upon the entry óf 2d of May,, there was error. Judgment reversed.


author: Judge Collet:

text:
    D. McArthur v. A. Kelly and M. T. Williams, Acting Canal Commissioners, Henry Neville, and others.
    The canal laws do not authorize the commissioners to compenesate those who-maybe injured, by appropriating lands of others, to be used without their' consent. An attempt to make such an appropriation may be stayed by' injunction.
    This cause was adjourned for decision here from the Supreme-Court of Pickaway county. The ease made in the bill was this: The complainant alleged that he was owner of a tract of land, and' in its actual possession and ^occupancy, situate between the Ohio canal, a certain feeder and dam and' the Scioto river, the feeder being upon the land thus owned and possessed by the complainant. That the defendants, Neville and others, owned a mill on the Scioto river, a short distance below the land of complainant. That the defendants, with Kelly and Williams, acting as-canal commissioners, threatened t‘___fc, under color of an act of the legislature, March 8, 1831, they would erect a waste weir and dig-a race to conduct water from the head race of the mill to supply it with water; that this waste weir and race defendants were .about to cut on complainant’s land without his consent and against his will. The bill alleged that the acting canal commissioners had •no authority, under the act referred to, to proceed in this manner. It made the act a part of the bill, and prayed an injunction, which had been allowed by a single judge out of term. The defendants ■ demurred.
    Leonard, for complainant,
    cited 2 Johns. Ch. 162, 463; 7 Johns. Ch. 329, 332, 436.
    Olds and Hunter, for defendants.
   Opinion of the court, by

Judge Collet:

The bill states that complainant was seized in fee simple, .and was in possession of a tract of land situated on the Scioto river, in the county of Pickaway; that the canal commissioners, to supply the canal with water, have erected a dam across the said river, which is abutted on the said land, and have constructed a feeder from said dam to the canal; that the feeder passes through said land; that the defendants, H. Neville, James Neville, and J. Cushing, are the owners of a mill on said river a short distance below said tract of' land; that they have no right to abut a dam against said land, or to dig a mill-race on it, or in any manner to use it, or any part of it, to convey water to said mill, or for any other purpose; that neither the complainant nor any other person, who was authorized, ever consented or agreed that they should do so; that the defendants pretend that they, by virtue of an *act of the legislature, passed on March 8,1831, entitled “ an act concerning the surplus water at the Scioto dam near Circleville,” have authority to construct a waste weir in said feeder, .and to dig a race from it to the head race of. said mill to supply it with water without the consent and against the will of the complainant, although the weir and the greater part of the race, if constructed, will be on the said land of the complainant; that they threaten, without the consent and against the will of the complainant, to construct this waste weir and race for the purpose aforesaid; that they have no right or authority to do so. The act referred to by the bill is made a part of it. • The bill prays an injunction, which was allowed in vacation. The defendants demurred to the bill, and moved to dissolve the injunction and dismiss the bill.

This act, which is a part of the bill, 29 Local Acts, 199, provides, that on the owners of Neville’s mill releasing to the state all damages sustained by them, by the construction of the canal and supplying it with water from the Scioto river, that then the canal commissioners should construct in this feeder a waste weir oí sufficient dimensions to pass off all the surplus water of the river, which can safely be made to pass into said feeder, over and above what can be safely made to pass along said canal below its junction with said feeder; and shall cause to be constructed a sufficient race from such waste weir to the point where the canal leaves the head race leading to the mill known by the name of Neville’s mill, and shall permit all the surplus water as aforesaid to pass through said waste weir into said race for the use oí said mill. This act further provides, that if the Supreme Court should determine that owners of mills on the Scioto river, who were injured by turning water from the river into the canal, could not recover damages for such injury, because the Scioto was a navigable stream, that then the canal commissioners should appoint appraisers, to ascertain the value of the water privilege, on which value, the owners of the mill ■should pay to the canal fund commissioners annually six per cent.; and if they failed to pay, that the privilege should be forfeited. That if the Supreme Court should determine that the owners of mills on the Scioto *river were entitled to damages for such injury, and that the state had no right to pass into the canal more water than was necessary for the purposes of navigation on the canal, that then the value of this water privilege, and the injury which the owners of this mill would have sustained without it, by withdrawing from the river, into the canal, more water than was necessary for navigation, should be ascertained by appraisers appointed by the canal commissioners; and if the value of the water privilege was equal to the damages, that the owners of the mill should receive the difference from the canal fund. By the last section of this act it is provided, “ that nothing in this act contained, shall be construed to affect, or interfere with the rights of any person or persons, through whose land said race may be constructed.”

A demurrer admits the facts stated in the bill. Me Arthur, then, must be considered as owning the land, against which the dam of the feeder is abutted, through which the feeder passes, where the waste weir is intended to be erected, and through which a greater-part of the race, if dug, will pass. Through this race, this mill is probably forever to be supplied with water — this, without any right or authority derived from McArthur, or from any source other than the act of the legislature of March 8, 1831, which declares that' nothing in it shall be so construed as to affect or interfere with the-rights of any. The entering on McArthur’s land and digging this race, the subjecting it, forever, to the passage of this water, forever'to be entered on as often and as far as may be necessary to cleanse and keep the race in repair, without the consent of McArthur, must undoubtedly affect and interfere with his rights. After this is done, will McArthur have that full and exclusive enjoyment of his landhe before had? Can the Nevilles and Cushing acquire-a right to pass water over the land of McArthur, without McArthur’s right being thereby lessened or impaired? Their right to pass this water may, if acquired, be worth half their mill; must not Arthur be affected ?

There being no provision in this act of the legislature, of March 8, 1831, for ascertaining the value of any land through which this race might pass, contrary to the will of *the owner, and for its payment, makes it highly probable that the legislature did not intend that it should interfere with the rights of any without their consent.

We can not presume that the legislature would be unmindful of the constitution, which declares that “private property ought and shall ever be held inviolate, but always subservient to the public welfare, provided a compensation in money bo made to the-owner,” art. 8, sec. 4; of the constitution of the United States, which declares that property shall not be taken “for public use-without just compensation (amendment 5); of that fundamental principle of which our constitutions are only declarative, that when the government tabes private property for public use, full compensation shall be made to the owner. The laws of nations require it. 1 Vat., sec. 244. To establish justice is the declared end of our government. Preamble to constitution of Ohio and United States. Before the owner can, without his consent, be deprived of his land for the public use, the legislature must declare by law that the public welfare requires it (1 B. C. 139), direct the- mode of ascertaining its value, and prpvide for its payment. The mouth of the owner is closed, he can make no terms, the government will take it, and must have the value ascertained, and. pay for it.

In the case of Gardner v. The Trustees of the Village of Newburgh and others, 2 Johns. Ch. 162, which was this: H. owned a farm near the village, on which was a spring, the water from which flowed in its natural channel from the farm of H. across, the farm of Gardner, and supplied his farm, brick-yard, and distillery with water. An act was passed by the legislature of New York to authorize the trustees ot the village to convey the water from the spring into the village for the use of the inhabitants. The act provided for the indemnity of H., the owner oí the spring,, and of another person through, whose land the water had to be-conveyed in passing to the village, but made no provision for the indemnity of Gardner. Chancellor Kent said that he “supposed the necessity of a provision for the compensation of Gardner did not occur to the legislature, or it doubtless would have been inserted ; until, then, some provision be made for affording him compensation, it would be unjust *and contrary to the first principles oí government, and equally contrary to the statute, to take from him his undoubted and prescriptive right to the use and the enjoyment of the stream of water and he, to prevent it, granted an injunction.

The legislature, on March 7, 1831, the day before they passed this act, passed the act “ defining the duties of supervisors of roads and highwaysby section 9 of that act they expressly authorize the supervisors to enter on lands near the road for materials to repair or construct the road, and, by section 10, point out the mode in which the value of any timber or stone taken and used for their purposes should be ascertained, and paid for. Seven days after, on the 14th of March, they passed the act for the opening, etc., of state roads; by section 17 they provide for ascertaining the injury which may have been done to any person by opening and making the roads, and for its payment. On the same day the “ act for opening and regulating roads and highways ” was passed; this provides for ascertaining the damages done to any one whose land should be taken for a road, and for their payment.

The legislature had these road laws under consideration when they were considering the act of the 8th of Masqh. By providing in the road laws for the taking of property of individuáis without their consent, and for the assessing its value and p>aying for it, while in the other they declared that it should not be interfered with, and no provision is made for its valuation and payment, is shown, •beyond a doubt, the intention of the legislature that it should not be taken.

It is contonded that, to pay the owners of this mill the damages they have sustained by constructing the canal and supplying it with water from the river, the canal commissioners have a right to construct this race, and pass the water through it from the feeder, by virtue of the constitution and of laws before enacted by ■the legislature.

All the authority which the commissioners have to enter on, or •take from the owner, without his consent, any land or interest in land, or materials for any work whatever, is given them by the ■“ act to provide for the internal improvement of the State of Ohio by navigable canals,” passed *February 4, 1825, vol, xxiii. 50. By this act they are directed to enter on and take possession of the land, water, and materials necessary for the construction and making the canals navigable, and for no other purpose. The legislature, in 1820, “ for the effecting a navigable communi•cation ” between the Ohio river and Lake Erie, appointed commissioners to locate a canal, and applied to Congress for aid in its construction. Vol. xviii. 147. In 1822 an act was passed, authorizing the governor to employ an approved engineer, to ascertain “the practicability of uniting the Ohio and Lake Erie” by “a navigable canal,” and creating a board of seven commissioners, who were required to make estimates of the cost of making the canal or canals.

The legislature having ascertained that it was practicable to connect these waters by a navigable canal or canals, passed the act of February 4, 1825, to effect that pui’pose; and having by section 1 of this act, organized the board of canal commissioners, provided for their payment, etc., and giving them authority to employ such engineers and assistants as should be necessary to fulfill the duties imposed on them by that act, by section 2 enact, “ that the said canal commissioners are hereby authorized and empowered in behalf of this state, and on the credit of the fund hereby pledged, to commence and prosecute the making of a navigable canal on the Muskingum and Scioto route so called, from the Ohio river at or near the mouth of Scioto river,” etc., “ to Lake Erie,” •etc., and likewise a navigable canal on so much of the Maumee .and Miami line, as lies between Cincinnati and Mad river, at or near Dayton.” Immediately after this formal grant of power to «construct the two navigable canals,” by section 3 it is enacted, “ that for the purpose of carrying into effect the object hereby contemplated, there shall be constituted a fund, to be denominated the canal fund, which shall consist,” etc. By section 8 it is ■enacted, “that it shall and may be lawful for the said canal commissioners, and each of them by themselves, and by any and ■every superintendent, agent, and engineer employed by them, to enter upon, take possession of, and use, any lands, waters, streams, .and materials, necessary for the prosecution of the improvements intended by *this act, and to make all such canals, feeders, dykes, locks, dams, and other works and devices, as they may think proper for making said improvements; doing, nevertheless, no unnecessary damage.” It is further provided by this section, that on application to the canal commissioners, by the owner of any land, water, or materials taken and appropriated for the purposes above mentioned, they should appoint not less than three nor more than five discreet persons, who, on oath, should appraise -or estimate the loss sustained by the applicant; and that the canal commissioners should pay to the owner the damages assessed.

It was impossible for the state to have these canals constructed and made navigable without acquiring a water power, which might be rented or sold for hydraulic purposes for considerable sums, without affecting the navigation on the canals, or the rights «of any.

The legislature, to enable the fund commissioners to raise funds for the construction of the canals, to enable the canal commis■sioners to contract for their construction, and to pay those whose land, or water, or stone was taken for their construction; and to insure the payment of the debt of the state, to be contracted by the fund commissioners, pledged for its redemption, by sections 5 •and 6 of this act, a certain proportion of the prdiiaary revenue of the state, and all the net proceeds of tolls collected on the canals, .and of the rents and profits of all privileges and works connected with the canals, which belonged to the state. The fund commissioners, by section 7 of this act, are required to pay to the canal commissioners such money as may be “ necessary for, and applicable to the objects contemplated ” by the act, which money the canal commissioners are required to expend “in all such works a® may be proper to make the said canals.”

From the formal grant of authority to the canal commissioners, by section 2, to construct the navigable canals, from their being directed to expend the money of the state in making the canal, and from the whole act, it appears evident that the legislature intended to authorize them to go no further. The disposable water power is noticed only to lien it to the fund commissioners. The canal ^commissioners are not authorized to seize lands for mills or materials for their construction ; they are not authorized to dispose of the water power for hydraulic purposes. When a part of the canal is navigable, they are required by this act to-establish reasonable tolls, and provide for their collection, section 7, but they are not authorized to fix a price or rent on the disposable-water power.

The canal commissioners are authorized by section 8 to pay those from whom they take land or water, or materials in constructing the canals, the value of the property taken. This, by the constitution, must be in money.

The legislature, neither by this nor any other act, have placed anything but money in the hands of the commissioners to pay any demand. How, then, can the commissioners, independent of the act, which is a part of this bill, convey this water to Neville’smill, to pay them the damages sustained by the construction of the canal.

If there was room for a doubt on this subject, it is removed by after legislation. Bythe act of February 7,1826, “to provide for the increase of the canal fund, by the purchase and sale of real estate,” in vol. xxiv. 58, the canal commissioners are authorized “to procure, by purchase or otherwise,” a suitable number of acres of land, at every point adjoining the canals, where the surplus water can profitably be used for hydraulic purposes, provided no-contract, made by the commissioners to purchase, should be binding on the state until approved by the governor. The commissioners are further authorized by this act to sell any lands which had been or might be given to the state for the benefit of the canal-, fund, and which were not adjoining the canal at points where the-surplus water of the canal could be profitably used for hydraulic purposes. They are also directed to take all deeds, whether of gift or sale, for the benefit of the canal fund, to the state. If the -canal commissioners had been before authorized to seize on lands, •without the consent of the owners, at the points on the canals where the surplus water could advantageously be used for the benefit of the canal fund, and had the legislature intended they ¡should exercise that power, they would not have passed this law, with the provision that no contract to- purchase ^should be binding until approved by the governor, without providing that no seizure of the commissioners, against the will of the owner, should be valid without his approbation. “ By purchase or otherwise,” certainly means by gift. There is no provision made for valuation or payment. By section 3 of the “ act in addition to the several acts for the protection of the Ohio canals, and for other purposes,” passed on February 28, 1830, vol. xxix. 380, the canal commissioners are authorized to order any surplus water, which can be spared from the feeders or from the canals, without impairing the navigation, for hydraulic purposes, to be sold with-any land given to, or purchased by the state, on which to use such water. No mention is here made oí any land which the state had seized for this purpose. By section 5 of “ the act for the protection of the Ohio canal,” passed February 11, 1828, it is enacted that whenever, in the opinion of the board of canal commission•ers, any water may be spared from any state canal, or works connected therewith, without injury to the navigation or safety'of such canal, the board may order a sale of such surplus water, for n. term of years, in their discretion, to the person who shall.bid the highest annual rent therefor, provided that the same ” shall not in any way interfere with the rights of individuals. By the last section of this act, the legislature expressly repeal all laws inconsistent with its provisions. This act expressly authorizing the canal commissioners to sell the water power of the state which can be spared from the canal, without affecting the navigation, requires them to sell at auction to the highest bidder, and prohibits them from interfering with the rights of any in disposing oí that water. The act of February 28, 1830, extended the authority of •the commissioners to the sale of the land sold or given to the •state, to use on it the surplus water for hydraulic purposes; and to the sale of her surplus water power on her feeders and at her works, for improving the navigation of rivers, and required them, in all their conveyances of water power, to insert a condition that whenever the water was deemed necessary for navigation it should be withdrawn, and the purchaser should either receive-back the purchase or have his rents remitted, as ^should, be just. By this act it is provided that all moneys arising from, any contract made in pursuance of it, shall be paid into the state' treasury, and form a part of the canal fund.

There is nothing in this act inconsistent with the provision of the act of February 11, 1828, that in no sale of water power by the commissioners should the rights of any be affected. The-legislature, therefore, thought it not necessary to repeal it. They carefully provided for the rights of those who purchased, when the state should withdraw the water. There is nothing in this,, or any other act, from which an inference can be drawn that the legislature intended that the commissioners should seize on the property of any, to sell or rent it, to pay the proceeds into the state treasury, or any department of it. On February 22, 1830r the legislature passed an act to authorize the canal commissioners-to occupy and use part of the common of the town of Newark, in the employment of the water power of the canal, provided the town council consented. This was but six days before the passage of the act last mentioned. Here they prohibited the use of a town common for this purpose, without the consent of the town council.

Roads, streets, landing places on navigable waters, canals, and fortifications are necessary. For these and some other public uses, the public must have land. To enable them to command so much of it as is necessary to be used and occupied for public purposes, is almost the only reason for subjecting the land of the owner to be taken by the government. A nation might be reduced to so great a strait as to go farther. Spain had to cede Gibraltar for a garrison to her enemy, whether any part of it belonged to a private owner or not. The public must have materials, such as-stone, timber, and gravel, to construct and repair her roads and. canals. The very existence of the soldier, in time of war, may depend on the food, etc., to be taken from the inhabitants in his neighborhood; for these reasons, property, other than land, is-subject to be taken by government. When taken, it is to be used by the government — the food for the hungry soldier, the stone- and timber in making and repairing the public work. 2 Johns; Ch. 166. When the state takes land *from the owner, as the constitution of the United States expresses it, for “public use,”' she takes no more, nor any greater interest’in it than is necessary for the “ public use.” He who owns the land over which a road passes, still retains the fee subject to the public use. A tree left by the public is his — -a quarry underneath is his; he may take the tree or work the quarry, if he does not thereby impair the road. When the road is discontinued, the whole interest of the land is again in him. Our governments have always acted on these principles. I know not that there was an instance of any state, distressed as they were, during the revolution, ordering the property of any individual to be taken and exchanged for arms- or clothing, or food, for the unarmed, unclothed, and hungry soldier. Our legislature has never directed either the land or personal estate of any man to be taken and transferred to another, to pay him the damages he had sustained by a road being laid on his land. They have ever considered it as a debt to be paid in money. They have never directed him to go and take his neighbor’s land, or timber, or stone, in compensation for what he had lost. They have never directed property of any kind to be taken from the owner, unless it, in kind, was wanted for public use. Considerable excitement sometimes existed, respecting the canals, but the legislature still kept this principle in view. To make the navigable canals, they directed the land to be occupied, and the materials to be used in their construction to be taken. For the-using or selling their water power, for hydraulic purposes, they prohibited it.

Nations, to discharge their debts, levy taxes; for roads and other-public purposes, requiring the occupation of land, they take land-No other course is just or consistent with the security of property, or the public welfare. Our state has pursued this course as-the only constitutional one. She has not, either to relieve or increase the canal fund, or any other department of her treasury,, directed the property of any one to be affected without his consent.

It is contended that the canal commissioners, having a right to construct waste weirs in the canals and feeders to pass off surplus water wherever they think it necessary; have a right to dig a race or ditch to convey from the weir the water which ^passes through it; that this lessens the injury to the owners of the land over which it passes; that, consequently, they have a right to erect this weir, and dig this race. The commissioners undoubtedly have a right, and it is their duty, if they have the means, to construct waste weirs wherever it is necessary to preserve the canal’s or feeders, or to facilitate navigation on the canals; and to cut ditches from the weir where the water would otherwise overflow, and injure the adjoining lands, as it is the duty of a supervisor of a road to cut ditches to pass off water which would otherwise injure the road; but a supervisor who should cause the water to be conducted into the road, that he might enter on the land below, against the will of the owner, and cut a ditch to pass it off, would be a malicious trespasser, without excuse, who should pay most exemplary damages. Here, the water which is to be passed through this weir and race, is to be turned into the feeder for the express purpose, and no other, of being passed through this race and weir to supply Neville’s mill. The feeder is to be overcharged with water, to make this weir and race necessary to the preservation of the canal; more water is to be passed along the feeder to the weir than “ can safely be passed along the canals” below the feeder. It is very clear that on this ground the defendants can not be justified.

On sales of water power or land the commissioners are required by the general laws to have the proceeds paid into the state treasury for the canal fund, which is a department of the treasury. The proceeds of the water power are liened for the discharge of the canal debt by the act of 1825. They are not authorized to dispose of it to persons who have been injured by the canal, to pay them for their unliquidated damages. The legislature have, in this case, made the contract; this act is nothing more than a ■contract between the state and the Novillos and Cushing, by which, the state agrees with them, that on their releasing to her all damages which they have sustained by the construction ot the canal, etc., she will dig this race and construct the waste weir, and forward through the feeder and weir into the race the water for tho mill, if it can be done without affecting or interfering with the rights of any. If there are rights which will *be affected by this race, the getting them in by the Nevilles and Cushing is .a condition precedent to calling on the state to construct the weir and race. The canal commissioners, as agents of the state, are required, in executing the contract, to interfere with the rights of none. Now, to subject the state to the payment for any right which maybe affected is contrary to this act or .contract, and -unjust. The state agreed to be at the cost of digging the race, •constructing the weir, keeping up the dam, and forwarding the water through the weir only, and not to that of getting any right necessary to convey the water to the mill, or to be subjected to any damage for doing so, but provided that she would not. Every light in which we can view this subject manifests that the •commissioners had no right to construct this race without the consent of McArthur.

It is contended that the injury to McArthur will be trivial; that it will not be grievous; that, therefore, this court will not interfere by injunction. The bill might have stated the length of the .race, or of that part of it which passes through McArthur’s land. It states that the dam is abutted on McArthur’s land; that the -weir and the greater part of the race will, if constructed, be on McArthur’s land; that the race is intended ever to be occupied for the use Of the mill. If this land of McArthur, between the feedor and the river, was of little value before the construction of the dam and feeder, after this construction it becomes of considerable value. It is valuable in proportion to the value of the water power, and to the' necessity to use this water power on or through this land. The water power is of as little value to the owner, without land to use it on, as the land can be without the water power; and it would consequently be as unjust, and an injury .as grievous, to force the owner to part with his land as to force the owner of the water power-to part with it. Suppose at this weir McArthur owns one hundred feet, through which this water must pass; the Nevilles and Cushing own the land between that .and the river, fifty or one thousand feet; they, having purchased the water power of the state, can they use McArthur’s land without his consent to convey the water to theirs, and then say to McArthur, we owning the water power aryl the land below, your land is of *no value to you; your injury is nothing; to us, though, your land is of immense value — without it our water privilege is worthless? If the court by injunction prevent.persons from cutting timber, to the injury of the land upon which it is ’growing; tenants from pulling down houses, from draining fishponds, or from cutting down ornamental trees, or from plowing meadow where the lease forbids the plowing (1 Mad. Ch. 143-149), how can it refuse an injunction in this case, where the land of McArthur is to be taken from him forever, so far as is necessary to keep up the race and pass this water? 1 Fonb. Eq. 29; 2 Johns. Ch. 162.

The case of Jerome v. Ross, 7 Johns. Ch. 315, in which the chancellor refused an injunction, differed materially from this; that was a simple trespass of almost the least injurious kind, the taking stone to erect a dam from a cliff of rocks, in which, and in the neighboring cliffs, the quantity was such as to make them of little value; and their removal did not diminish the value of the cliff. It was like taking a winter’s fire-wood for a family from the fallen beech and sugar-tree and tops of fallen and decaying oaks of a thousand acre tract of unimproved woodland. In this case a permanent appropriation of the land of McArthur is intended. The legislature, in the contract with the Nevilles and Cushing for this water power, have carefully guarded the rights of McArthur, as we have seen; they are now endeavoring, at the expense of the state, by color of this contract to prostrate these rights. It is very clear that this objection can not prevail with this court:

It is contended that the bill should have stated that the release to the state had been executed, and that the canal commissioners had commenced the weir or race, or that preparations were made for its commencement; that the statement that they “ threatened” to construct the weir and race is not sufficient to authorize the injunction. An injunction prohibits the doing something which, would injure or endanger the rights of the complainant, as the causing nuisances, or committing trespass of certain kinds, or the assignment of a note, or the payment of money. If the court had evidence that the defendant intended to commit the wrong, before-its commencement, and that he had power *to do it, they could no more refuse the writ to prevent its commencement than after its commencement to stop its progress. Why should the court? There are many cases in which, if the court could not issue the writ until the wrong was commenced, it would be of no avail, as to prevent the assignment of a note, opening of a mill-dam, or taking down a house. And in this case the canal commissioners, with the force in their employ, might not allow sufficient time after the commencement of the work until it was finished to have ».n injunction applied for, allowed, and served before its completion. The bill states that the defendants “ threaten ”■ to dig this race, which is confessed by the demurrer. On proof of the defendants threatening to do the wrong when it appears that they have the power, the court issue this writ. 1 Mad. 138, 147-149; 2 Mad. 216; 2 Har. 131.

It was'not necessary to state in the bill that the release to the-state was made. It is made the duty of the defendants to have it executed; its execution may lie presumed from their threat. Whether the release is executed or not, the injury would be the same to McArthur, and the defendants are equally unauthorized, to inflict it. Upon the whole, the court are clearly of opinion that the motion to dissolve the injunction must be overruled. The defendants had leave to answer.


text:
    Edward King v. John Kerr’s Administrators.
    Covenant of warranty, until eviction, passes to-heir or assignee.
    The holder of a covenant of warranty, at the time of eviction, may maintain-a separate action against every intermediate warrantor, which he may prosecute to judgment, but he can only obtain one satisfaction. The amount he can receive, is actual damage sustained, including costs paid, with the-costs of the several suits.
    To sustain an action on the warranty, it is not necessary to give notice to the warrantor that the ejectment is brought upon which the eviction is had.
    Where, after judgment in ejectment, the defendant claims the benefit of the occupying claimant law, under which the case is settled, actual eviction is not necessary to sustain an eviction on the warranty.
    The rule of damages is the actual loss to the warrantee, when ascertained under the occupying claimant, law.
    This case was adjourned from the county of Ross, and came before the court upon an agreed state of facts. It was an action of covenant upon a warranty in a deed of conveyance made by Kerr,, in his lifetime, December 30, 1807, to M. Baldwin, for a lot in the-town of Chillicothe, in which deed the consideration expressed was two hundred dollars. This lot, by intermediate conveyances,, all containing covenants of warranty, came to the plaintiff, King, *by a conveyance dated November 4, 1817, from Marcus Heylen and wife; consideration expressed, two thousand eight hundred dollars. The possession had passed with the conveyances to King, against whom James Miller and wife brought an. ejectment, and recovered judgment for the lot upon an independent and superior title. King claimed the benefit of the occupying claimant law. Upon the return of the commissioners appointed to make valuation, Miller and wife elected to take the valuation, put upon the ground, without improvements, being three hundred and fifty dollars, which, upon the order of the court, was paid to them by King, and they released to him their title. Subsequent to the recovery in ejectment against King, he had sued an action of covenant against the executrix of Heylen, his immediate grantor, upon which no execution had been issued or compensation had. The questions presented for decision on this state of the case were, can the action be maintained? And if so, for what amount'?
    Leonard, for the plaintiff,
    cited 1 Roll. 521; 1 Inst. 384, a; 1 Ves. 572; 4 Mass. 352; 1 Camp. 244.
    G-. Swan, for defendants,
    cited 4 Halstead, 139; 7 Johns. 259, 376; 11 Johns. 122; 1 Ohio, 386; 5 Johns. 120; 3 Term, 587; 2 Saund. 177; 13 Johns. 336; 1 Mass. 464; 3 Bibb, 175; 1 Marsh. 370.
   Opinion of the court, by

Judge Collet:

The covenant of warranty in a deed conveying land, or any interest in laud, is an undertaking by the warrantor, that on the failure of the title which the deed purports to convey, either for the whole estate or for a part only, by the setting up a superior •title, that he will make compensation in money,'for the loss sustained by such failure of title. It is commonly, in express terms, • extended, to the heir and assignee of the grantee, but this is immaterial. This covenant is not broken until the grantee, his heir ■ or assignee, is evicted from or disturbed in the enjoyment of the premises, or a part of them, by the setting up of a superior, or paramount *title. It is like the covenant of quiet enjoyment in a lease. The covenant of warranty, as respects the grantee, is not merely a personal covenant, for the breach of which he, or his executors or administrators, only could sue; but it has respect to the land, is a real covenant, and until broken, passes with the land, to the heirs of the grantee ; or if the land is conveyed or assigned ■ to the assignee, and when broken, the heir or,assignee injured by vthe breach can, in his own name, sustain an action against the warrantor. Co. Lit. 384 b, 385 a; 4 Kent Com. 459; 5 Cow. 138; 1 Conn. 248. The court believe it settled, that all covenants in deeds for the conveyance of lands, which have respect to the title, and which were not broken when the land descended to the heir or passed to the assignee, are inherent or real covenants, and attend the land; and that on a breach happening, the heir or assignee injured thereby, could sue the warrantor, his executor or administrator, for the recovery of damages. In the case of Adm’rs of Backus v. McCoy, 3 Ohio, 218, 222, which was an action to recover damages for a breach of the covenant of seizin,, in a deed made by McCoy, the court determined that when a. grantor was in possession of the land, claiming it in fee simple, at the time he made the deed, that the covenant of seizin was not broken as soon as made; that in such a case, it was not broken-until the grantee, his heir or assignee, was evicted, or disturbed in the enjoyment of the premises, but was a real covenant, and as-well as the covenant of warranty, descended with the land to the assignee, and that the heir or assignee, when evicted, could sustain an action for a breach of it. This objection to King’s recovery can not prevail.

It is objected to his recovery, that he has a judgment against the-representatives of Heylen, o-n the covenant of warranty in Heylen’s deed to him for these premises, for the damages he claims of Kerr’s representatives in this action. Kerr, for the consideration as stated in his deed, of two thousand dollars, conveyed the premises, with a covenant of warranty, in fee simple, to Baldwin. The-title conveyed by Kerr to Baldwin was passed by several intermediate conveyances, each with general warranty to Heylen, and by *Heylen to King, whereby King became the assignee of Heylen and of Baldwin, and of each grantor through whom the premises passed from Baldwin to Helyen. With the premises, the covenant of warranty of Kerr, and of each of the others, passed, to and centered in King, as though they had each been made with-him personally. That eviction or disturbance of King in the enjoyment of the premises, which was a breach of the covenant of warranty of Heylen, was a breach of the warranty of Kerr, and of each of the others, whereby each became liable to be separately-sued on his several covenant, for the same damages which each-for himself had undertaken to pay.

As in a joint and several note to pay a sum of money on a certain day, or on the happening of a particular event, if the moneyis not paid on the day or on the event happening, the payee may treat •the contract as the several undertaking of each, and sue at the same time each maker separately, and recover judgments against each, or may sue them each in succession, and obtain a judgment against one, then sue another and obtain a judgment against him. The judgment against one is no bar to the action against another; nothing isa bar but actual payment according to the undertaking as by the note. Or as where a promissory note passes by indorsements through several hands, each indorser, by his indorsement, guaranties or warrants the payment of the note by the maker; and if it is not paid when it becomes due, the contract oí each indorsee is violated, and the holder can sue each at the same time for the amount of the note, or in succession. Imprisonment of one, on a ca. sa. at the suit of the holder, will not be a bar to an action by him against another. The undertaking was that the money should be paid; nothing else can, without the consent of the holder, make him whole. So here (for in principle the cases -do not differ), King might have sued all the warrantors at the same time or in succession. A judgment against one unsatisfied "is no bar to a suit against another. Nothing but payment of the damages sustained can, in this respect, bar his action. To pay is the covenant of warranty. 1 Conn. 248; 5 Cow. 138. King can have but one satisfaction; on that being actually made, then, on payment of the costs, *all further proceedings Would be stayed so far as King was to be benefited by the actions. If these covenants have been broken, it is commendable in King to prose•cute the representative of the first warrantor; if he can obtain from him compensation for all the injury he has sustained, there can be no further litigation on the subject, unless it is about the •costs of the judgment against the administrators of Hevlen.

It is not necessary to sustain this action, that notice should have been given by King to the defendants of the commencment of the action of ejectment against him by Miller. No such averment is found in the precedents of the declarations in this action, as there would have been if notice was necessary. It is prudent to give the notice; it in some cases enables a plaintiff to recover on less testimony. 2 Saund. on Plead, and Ev. 631. This objection of the defendant can not bo sustained.

It is objected to King’s recovery that he has not been evicted; this can not prevail. It is a general rule that, to sustain an action -on a covenant of warranty, an eviction by process of law must be shown. The Supreme Court of Massachusetts admits of exceptions. 4 Mass. 348; 1 Big. Dig., title Cov., K. 4, 5. In an action on a covenant in a deed against incumbrances, no eviction is necessary; but the plaintiff may show that he has, by paying it off, got it in, on which he shall recover what he has fairly paid for it. If he could not thus protect himself, and preserve his right of action against the warrantor, he would have to buy in the incumbrance and lose it, or suffer the whole or a part of the premises to be sold by the officer to a stranger to satisfy the incumbrance; to he sued and regularly evicted by execution, although the incumbrance was due and liquidated, and not one-tenth of the value of the premises. The covenant of warranty includes the covenant -against the incumbrances. Why should the eviction, in such case, when it is so manifestly injurious to both parties, be anywhere required in the action on the covenant of warranty? Be this as it may, Miller has, by a paramount or superior title, recovered a judgment in ejectment for the premises against King. King remains in possession, and has got in the title of Miller, not by a private ^arrangement between him and Miller, but by conforming to the provisions of the occupying claimant laws (22 Stat. 448), and that not without being injured by the failure of the title derived from Kerr. Justice, and the interest of both warrantees, and the manifest intention of the legislature in enacting the occupying claimant laws, all require that this action be sustained.

The occupying claimant laws were enacted to promote the settlement and advance the improvement of the country, by giving assurance to the settler in the woods, who had reasonable grounds to believe- that he had a good title to the land on which he settled, that if that title should fail, the person who by his superior title entered into the enjoyment of the-fields which the settler had cleared, the orchard he had planted, and the houses which he had erected, should do him justice, by paying him for that labor and ■expense of which the successful claimant reaped the benefit. These laws provide, that on the recovery of a plaintiff in ejectment against a defendant who has such evidence of title as is required by the statute, either party may, by motion to the court, have commissioners appointed, to value all improvements on the land, made by the defendant, or by any person through whom he derived title, deducting for waste and now for rents; and to assess the value of the land without the improvements. The'plaintiff in ejectment can not put the defendant out of possession, until he has either paid him for the improvements or offered to convey to him the land, and he has refused to receive, and pay its value-without the improvements.

The rule by which damages are ascertained in this action,, whore the whole of the premises are lost by the failure of the title, is the same as in an action on the covenant of seizin, the consideration received by the warrantor for the premises, and interest. 3 Ohio, 221; 4 Kent, 462-465.

This rule is adopted as the one most likely to do justice between the parties. It is the rule in most of the United States. In a-country long settled, where the value of real property varies but little in twenty or forty years, whether this, or the value of the-premises on eviction, is the rule, this, in general, is ascertained without cost or dispute. In this state, where real property is rising fast in value, the *value on eviction would be ruinous-to the warrantor, and, in cases to which the occupying claimant law applies, would be unjust..

The warrantor covenants or agrees, that on failure of the title, he will pay the loss sustained; hence, to assess the damages at more is unjust; he covenanted to pay no more; to-assess them at. less, would be unjust and injurious to the warrantee.

When the title fails for a part only of the premises, as for one-tenth in value, the party recovers but one-tenth of the consideration and interest. 3 Ohio, 221, 222; 4 Hals. 143-148; 8 Pick. 455.

Interest is not recovered when the premises have been occupied by the warrantee, and he has not accounted, nor is accountable, for1 the rents and profits. It would be unjust. He who buys a farm, or house and lot, agrees to part with the use of the consideration forever, for the use of the farm or house and lot forever. As long as he has the use of the farm or house and lot, so long should the seller have the interest of the consideration.

A. sells to B. a farm for one thousand dollars; B. receives for it a clear rent of sixty dollars a year, for forty years, when his title fails, and he has to account to the claimant for four years’ rent. A. should refund to B. the one thousand dollars, and four years’ interest; it would be unjust to give B. forty years’ interest. -The-title of A. enabled B. to enjoy the premises thirty-four years. 4 Kent’s Com. 462; 9 Johns. 324; 13 Johns. 31.

A., by a claim for dower in the premises, which is paramount, has it assigned, the premises not dividing, by an annual rent of thirty dollars; at the end of the first year, the warrantee pays her the thirty dollars, when she dies; he will recover of the warrantor the thirty dollars, and costs taxed against him in the proceedings for dower. The costs were incurred in defense of the warrantor’s title. 13 Johns. 51; 4 Bibb, 220; 14 Johns. 89; 4 Kent, 442. The thirty dollars, costs and interest from the payment, is all the injury sustained.

When the commissioners, under the occupying claimant laws, value improvements, and the successful claimant pays *the defendant for them, the warrantor, when the improvements were made by him, in this action must have credit for them. The spirit and policy o'f the occupying claimant laws, and justice, require it. In this case, suppose the improvements' all made by Kerr; that, they had been valued at one thousand six hundred and fifty dollars, after deducting the rents received by King; that Miller had paid King the one thousand six hundred and fifty dollars, and put him out; King would recover only three hundred and fifty dollars, the balance of the consideration of two thousand dollars received by Kerr for the premises. King had received the rents; Kerr had paid for them, by having them deducted from his improvements. If the improvements had been a part made by Kerr, a part by King, in assessing damages their relative value to the whole sum recovered by King for them would have to be ascertained, and interest apportioned according to the charge on the improvements. 3 Bibb, 167.

In this case, King has not lost the whole of the estate which he derived from Kerr in the premises, by the recovery of Miller. He has, by virtue of Kerr’s title, retained the improvements, whether they were made by Kerr, or any other assignee of Kerr, before they came to King, or by King. Miller’s title, by the proceedings under the occupying claimant law, has been reduced to an incumbrance of three hundred and fifty dollars, which King has paid off, together with the costs of the ejectment and proceedings under the occupying claimant law. This three hundred and fifty dollars, and these costs, are the damages sustained by King, which, with interest. from the time he paid them, is all he should receive, or the warrantor pay. Their covenants extend no further.

Not to give King this, would not only be unjust, but it would in .some cases prevent the occupying claimant from purchasing in the paramount title, and subject the warrantor perhaps to the double loss of the value of the improvements made by him, and to the return of the whole consideration which he received for the premises.

It is agreed by the parties, that final judgment should be rendered at this term, without an inquiry-of damages. The three hundred and fifty dollars, and interest on it from the *time •it was paid by King to Miller, and the costs of the ejectment, and of the proceedings under the occupying claimant law, with interest on these costs from the time they were paid by King, must all be added together, and the sum thus produced the court assess as the •damages of King, for which sum, and the costs of this suit, judgment must be entered.


author: Judge Wright:

text:
    James Taylor v. The Miami Exporting Company and others.
    A stockholder in an incorporated bank may sustain a bill in equity against the corporation, the directors, and other stockholders, upon allegations of fraudulent practices, depreciating the value of the stock, suspending banking operations, refusing cash payments, and withholding dividends; and in such bill the complainant may join individual stockholders with the corporation, may pray for an account of stock and funds, and for restoration of whatev er may have been fraudulently withdrawn from the common stock.
    This case was adjourned here for decision from the county of Hamilton. The bill charges that in the year 1803, the Miami Exporting Company were incorporated and organized, and that, before the year 1818, the complainant became the owner of two hundred shares of the stock, at the price of one hundred dollars per share. And it is alleged that on July 14,1818, he gave a note to the company, payable in ninety days, for three thousand dollars, and pledged his whole stock as security for the payment, for the recovery of which a suit is pending in favor of the company. It is further alleged, that the whole stock is retained, and that for a long time no dividends have been paid to him.

      The bill proceeds to charge that the president and directors of the company have greatly mismanaged its concerns, so as to destroy its credit, and render it unable to pay its notes when demanded, and that it had ceased to do business as a bank. And that on September 22, 1818, they passed a resolution, made known only to a few, authorizing the transfer or liquidation oí stock in payment of debts due the bank from stockholders. It then enumerates the stockholders who made transfers tinder the resolution-, and the amount of debt and stock thus liquidated by each, all of whom are made defendants. The amount of' stockthus liquidated by *the payment of debts under this order, up to October 2,1820, is charged to be one hundred thousand seven hundred and seventy-six dollars and eight cents.
    The bill further charges that on May 8,1821, another order was made for the transfer of stock for the payment of debts by the stockholders, under which a number of stockholders, who are named and made defendants, transferred stock to the amount of forty-six thousand one hundred and nine dollars and ninety-six cents.
    The bill then states that the whole number of shares sold, before the transfers under the resolution of 1818, was five hundred and fifty-nine thousand nine hundred dollars, upon which actual payments were made to the amount of four hundred and seventy-nine thousand six hundred and forty-five dollars and thirty-one cents.
    The bill further charges that William Barr, who is made defendant, on May 21, 1821, subscribed and paid for six hundred shares of stock of the company, in the names of individuals stated, one hundred shares in his own name, and one hundred in the name of Samuel Patterson, John Sterret, David Cfriffin, James Riddle, and Samuel Perry, each. And that on the 5th of June of the same year (1821), the board of directors, of which Barr, Sterret, Perry, Griffin, and Riddle were members, passed a resolution to take back the said six hundred shares of stock, and pay to Barr the original price of sixty thousand dollars. And it is charged that the purchase of the stock was a fraudulent act, in which the directors concurred, to decide an eLection for directors, which w«,s held between the time of sale and repurchase.
    The bill prays that the stock liquidated or transferred, in the payment of debts, may be set up in equity as subsisting stock to bear a share of the profit- and loss of the whole concern. It prays, also, that the debts discharged by the stock may be set up, and that the stock purchased by William Barr, and sold again to him, may be set up, and that the company may be decreed to make a final settlement of all its business with the stockholders, or that it may be decreed to go on with its business in the regular manner, and declare and pay the stockholders their dividends. And in case of final settlement, it is prayed that the company account to-the ^complainant for his stock and dividends, deducting the amount due upon the note named in the bill. There is, besides, a prayer for general relief.
    To this bill some of the defendants answered and some demurred. And some of the defendants demurred generally, and some upon the ground of being improperly made parties.
    Hammond and Worthington, for complainants,
    cited 1 Ves. & Beame, 226; 5 Cranch, 90; 17 Ves. 315; 2 Term, 204; 2 Johns. Ch. 390; 5 Mass. 230; 15 Mass. 505; 3 Mason, 308; 19 Johns. 456; 5 Pet. 672; 2 Kent’s Com. 239; 2 Cranch, 127; 15 Johns. 358; 5 Conn. 560; 3 Barn. & Ald. 1; 4 Wheat. 518.
    Storer and Fox, and N. Wright, for the defendants,
    cited 1 Ves. & Beame, 157; 2 Id. 330; 3 Id. 180; 1 Jac. & Walk. 572; 2 Term, 199, 346; Mitford Pl. 21; Coop. Pl. 27, 163; 4 Wheat. 50; 4 Bro. Ch. 165; 2 Ves. Jr. 46; Coop. Eq. Pl. 30; 6 Johns. Ch. 160; 15 Ves. 10; 1 J. & W. 572, 574; Swa. 495; 1 Ven. 117; 2 P. Wms. 310; 14 Ves. 245; 1 Johns. Ch. 366; 5 Com. Dig. 19; 3 Burr. 1266; 1 Cranch, 167; 5 Johns. Ch. 377; 5 Mass. 230; Yel. 190; 2 Term, 513; 4 Term, 199.
   Opinion of the court, by

Judge Wright:

Two questions are presented for the consideration of the court:

1. Whether the bill, in any aspect, presents a case proper for the interference of a court of chancery ?

2. Whether any of the defendants have been improperly made defendants ?

> As to thfe first question, it is not my purpose to go into a detailed examination of the numerous authorities cited at this time-. If the case made in the bill is one- under which facts might be proven, entitling the complainant to any relief, the demurrers cannot be sustained. The bill is not artificially or precisely drawn; and the case is one of some doubt and difficulty. It claims, among other things, to be relieved against the fraudulent acts of the directors and several of the stockholders of the bank, and for an account. ^Matters of' trust and account are within the undisputed jurisdiction of a court of equity.

Judge Story, in the case of Wood et al. v. Deeman et al., 3 Mason, 310, in discussing this subject, says, “ It appears to me very clear, upon general principles, as well as the legislative intention, that the capital stock of banks is to be deemed a pledge or trust fund for the payment of the debts contracted by the bank. The public, as well as the legislature, have always supposed this to be a fund appropriated for such purpose. The individual stockholders are not liable for the debts of the bank in their private capacities. The charter relieves them from personal responsibilities and substitutes the capital stock in its stead. Credit is universally given to this fund by the public as the only means of repayment. During the existence of th.6 corporation it is the sole property of the corporation, and can be applied only according to its charter; that is, as a fund for the payment of its debts, upon the security of which it may discount and circulate notes. Why, otherwise, is any capital stock required by our charters? It the stock may, the next day after it is paid, be withdrawn by the stockholders without payment of the debts of the corporation, why is its amount so studiously provided for, and its payment by the stockholders so diligently required? To me this point appears so plain, upon principles of law, as well as common sense, that I can not be brought into any doubt that the charters oí our banks make the capital •stock a trust fund for the payment of all the debts of the corporation. The bill holders and other creditors have the first claim upon it; •and the stockholders have no rights until all the other creditors are satisfied. They have the full benefit of all the profits made by the establishment, and can not take any portion of its funds until all the other claims upon it are extinguished. Their rights are not to the capital stock, but to the residuum after all the demands upon it are paid. On the dissolution of the corporation, the bill holders and stockholder's have each equitable claims; but those of the bill holders possess, as I conceive, a prior exclusive equity. •The same doctrine has been recognized by the Supreme Court of Massachusetts. 15 Mass. 505, 517, 522; 16 Mass. 9, 15. If I am right in this, the principal difficulty *in this cause is overcome. If the capital stock is a trust fund, then it may be followed by the creditors into the hands of any person having knowledge of the trust attaching to it. As to the stockholders themselves, there can be no pretense to say that, both in law and fact, they are not affected with ample notice.” In Gray v. Portland Bank, 3 Mass. 364, Lowell, Judge, considers this kind of corporation as a copartnership; and Sedgwick, Judge, says all the stockholders were partners. Blackstone says, 1 Com. 477, that “ the general duties of all bodies politic may, like those of natural persons, be-reduced to this single one — that of acting up to the end or design, \whatever it be, for which they were created.” I look upon it asolear, that all corporations are trustees for the individuals of which they are composed, and that those who act for the corporation and , conduct its affairs, are trustees for the corporation and can not ap- ) propriate the corporation funds to their individual advantage, to- , gratify their passions or to serve any other purposes than those for j the general interest of the corporation and its creditors. And ' /when a by-law or resolution is adopted for the personal benefit ! of the individuals making it, chancery will control such exercise [ of power. 17 Ves. 315. Lord Redesdale, in Adair v. Shaw, 1 Sch. & Lef. 243, 262, says “trusts are enforced, not only against those-persons who are rightfully possessed of the trust property as trustees, but also against all persons who come into possession* of the property having notice of the trust.” Upon this ground, assets-in the hands of debtors, or misapplied by executors, or where-there is collusion, are often vested in chancery as a trust fund. Chancellor Kent, in Attorney-General v. Utica Insurance Co., 2 Johns. Ch. 389, admits “ that the persons who, from time to time, exercise the corporate power, may, in their character of trustees, bo accountable to this court for a fraudulent breach of trust; and to this plain and ordinary head of equity the jurisdiction of this-court over corporations ought to be confined.” A corporation, being a trustee, is in part the same as an individual. 2 Ves. Jr. 467; 14 Ves. 252, 253; 2 D. & E. 171; 2 Bos. & Pul. 222; 11 East, 566; 4 Barn. & Cress. 461; 19 Johns. 456, 457. If this-^application was on the part of a creditor, properly so called,, there would hardly be a question that this court had jurisdiction. I am not able to discover any good reason why the jurisdiction should be denied to a corpoz-ator against his trustee. The stockholders own the whole fund managed by the directors as their agents and.trustees. Can these agents take fraudulent measures to depress the value of the stock they manage, buy it. up at the reduced price, and then transfer it to the bank at its nominal-value, pocket the avails of the fraud, render the bank insolvent, totally destroy the value of the stock of the remaining stockholders, and claim exemption from legal responsibility? Can they make corrupt bargains to elect directors who will divide the whole funds of the bank among themselves and set their eo-stoekhoiders at defiance? We can not believe the powers of this court so feeble as not to reach a case of such palpable fraud or unequal to the revision of so iniquitous a contract. Upon the case made-in the bill, the complainant’s interest has been destroyed by the acts of his agents fraudulently performed for their own exclusive advantage. Can not this court set aside such acts and place the rights of the complainant and his co-corporators where they would have stood if this fraud not been attempted? Again, if this corporation and directors were trustees and agents of the stockholders, can they not call them to account for the funds placed under their care, and to exhibit the state of the corporate affairs, in order to stay them from totally destroying the whole fund-under their charge; or is it true that these extensive trusts and these trustees are peculiarly exempt from responsibility? We-think they are not.

But it is said this court can not act, because the taking an account, or the restriction of the directors from further fraudulent acts, puts in issue the life of the corporation, and seeks administration of its effects. If that must be the effect of the account,, or the setting aside these fraudulent transfers, the objection is-well taken. An individual can not treat a corporation as dissolved for misfeasance or malfeasance till it has been called upon to answer the direct charge, and the law .has adjudged the forfeiture. 2 Burr. 862. Suppose the account prayed for is had, does the making it put in tissue the life of the corporation, or interrupt the exercise of the corporate functions ? Clearly not. Suppose these transfers of stock should be found fraudulent, as alleged, be set aside, and the money withdrawn from the vaults of the bank through their instrumentality is replaced, would that interrupt the business of the bank or put in issue its life ? So far from it, the restoration of this money improperly withdrawn from the-funds of the bank might impart to the institution new life and vigor. There is a vast amount of capital managed under various acts of incorporation, whose directors are under immense responsibilities to the public and to individual stockholders. It is only necessary to suppose it possible that these agents, like other men, can be unfortunate or dishonest to demonstrate the necessity of fixing a responsibility somewhere, or these agents and trustees will have power at their own will to divide the capital entrusted to their care among themselves, defrauding both creditors and stockholders. The action at law would not afford an adequate remedy. A court of law has no power to restore things fraudulently removed. Its whole power would be exhausted in the assessment of damages against the individual committing the wrong, and the satisfaction of the amount of his property or person, while the fraudulent act would remain operative to the injury of the principal. Besides, the matters charged in the bill load us to suppose a case where to effect a particular fraudulent object, the stock might be so arranged as to elect a board wholly irresponsible in a pecuniary view, and altogether free from restraint. ¥e think this court, in a proper case made, has the jjower to compel an account from bank directors to their stockholders, to restrain them from the gross misapplication of the stock intrusted to them, and to set aside their fraudulent acts, if injurious to their principals-But it is again claimed that this power can not be exercised until the corporation is dissolved by legal means, or the expiration of its charter. If this be true, the power of the court does not extend to the preservation of the property of the individual, or the functions of the corporation from destruction. The chancellor has no power to prevent irreparable injury or waste of his funds; but the corporator must first institute proceedings at law upon *scire facias or quo warranto to repeal or destroy the charter, the veiy thing he desires to preserve. 5 Pet. 673.

The second point remains. Are these defendants properly made parties to this bill? If we are correct in the view we have taken, it would seem to follow, as a necessary consequence almost, that in order to the effectual exercise of the power of the chancellor, he must have all the parties to the fraud before him. The defendants are the bank in its corporate capacity, the director's and stockholder's charged with the fraud. There is a peculiar fitness in bringing them all before the court, that if fraud is found, the whole proceedings may be reviewed and the participants compelled to restore their ill-gotten gain to the coffers of the corporation.

Demurrer overruled.