author: Price, J.

text:
    Fisher v. Bower.

      Action for damages and injunction — Public ditch obstructed — And water diverted — Action not appealable — Court procedure.

    An action to recover damages for so filling up and obstructing a public ditch and making a new channel, as to cause the water falling on lands of defendant and others to be diverted from the public ditch and overflow the lands of the plaintiff, thereby annually destroying his crops and pasturage, is not appealable, although the prayer for damages is followed by a prayer for injunction to prevent repeating or continuing the cause of the injuries.
    (No. 10740
    Decided January 26, 1909.)
    Error to the Circuit Court of Hardin county.
    On the 15th day of August, 1902, the plaintiff in error brought suit against defendant in error, in the Court of Common Pleas of Hardin county, alleging in substance, that plaintiff and defendant are owners of farms in said county — one of said farms consisting of about three hundred acres belonging to the plaintiff, and the other consisting of ■ about two hundred and forty acres belonging to the defendant Bower. These farms are contiguous to the extent that the northern portion of plaintiff’s lands bounds defendant’s lands on the east; and the northern and eastern portion of defendant’s lands bounds plaintiffs said lands on the north. The plaintiff’s farm was adapted to and used for agricultural purposes such as raising grain and pasture for stock of various classes common to the business of farming in that community.
    It is averred that the natural drainage of the Bower farm is through a natural watercourse and township ditch, flowing in a north-easterly direction through his lands. Upon the lands of defendant and between said township ditch and lands of the plaintiff, there is a low ridge or elevation of land, and west of said elevation the waters falling upon the lands of Bower naturally flow into said township ditch. It is alleged that during or prior to the year 1897, the defendant Bower closed up said township ditch with logs and earth and other substances, and has thereby prevented said waters falling on defendant’s lands, and the other water flowing into the ditch from above his lands, from flowing away to the northeast through said ditch; and that Bower had cut a ditch running east from said township ditch through said elevation, nearly to the eastern boundary of his land, and has given such grade to the new ditch that the waters which theretofore naturally flowed into and through said township ditch and away to the northeast, now flow east through the ditch so cut by the defendant, and pour out of said ditch and run thence upon and over the lands of plaintiff, which are not naturally tributary to said waters so thrown upon them.

      The plaintiff charges that resulting from these wrongful acts of Bower, his lands have been overflowed and damaged and that he has been in large measure unable to raise crops on his lands, and that the yield of crops has been largely diminished. It is further alleged that the acts of defendant at times caused the overflow of twenty-five acres of' plaintiff’s lands, making them unsuitable for agricultural purposes, and that for the six years preceding the bringing of the action plaintiff had been prevented by defendant from using said twenty-five acres for any useful purpose. The plaintiff says he has been damaged by the conduct of defendant in causing and continuing plaintiff’s said lands tó be overflowed in the sum of $600 for which plaintiff asked' judgment. The further prayer of the petition is, “that defendant, may be forever enjoined from allowing said waters to flow upon the lands of plaintiff; and that defendant be forever enjoined from gathering" and diverting- into said east and west ditch said waters falling upon defendant’s said lands * * *, and from causing the same to flow through to the eastern extremity of said ditch, and thence discharging them upon said lands of plaintiff, and for such other and further relief as is proper in equity.”
    The defendant answered that he admitted his ownership of the lands ascribed to him in the petition, but denied all the other allegations therein.
    On the issues the case was tried to a jury at the March term for 1903, but in August of that year.
    The jury found the plaintiff damaged in the sum of $180. The court overruled a motion for new trial and rendered judgment on the verdict. The record shows that after the verdict and judgment the cause came on to be further heard, upon the motion of plaintiff for an injunction as prayed for in the petition, and the court found from the pleadings and the evidence that the equities of the case were with the plaintiff, and that defendant had diverted the water as plaintiff had alleged, and granted a perpetual injunction against the defendant as prayed for in the petition.
    The defendant gave' notice of appeal- and the court fixed the amount of an appeal bond, and bond for appeal was executed and with transcript and original papers the same was filed in the circuit court.
    The plaintiff moved to dismiss the appeal on the ground that the case was not appealable. This motion the circuit court overruled and exception was taken. This was done at February term, 1904. At the February term for 1907, the case was heard on the pleadings and evidence, whereupon that court held that plaintiff was not entitled to either damages or relief by injunction, it being the opinion of the court that plaintiff had an adequate remedy at law by means of proceedings before the county commissioners for the establishment of ditches, etc. Being of such opinion, the court dismissed the plaintiff’s petition without prejudice, and divided the costs.
    Error is prosecuted here to reverse the judgment of the circuit court.

      Mr. Art emus B. Johnson and Mr. George E. Crane, for plaintiff in error.
    If a legal and an equitable cause or action be united in the same petition, the parties have an absolute right to demand a trial by jury of the issues of fact in the legal cause of action, which cannot be taken away or abridged by the legislature. 1 Kinkead Code Pleading, 245; Rowland v. Entrekin, 27 Ohio St., 47; Ladd v. James, 10 Ohio St., 438.
    Where the facts constituting a single cause of action call for both legal and equitable relief, the method of trial in such case is determined by the nature of the action. If the primary or paramount relief be equitable, and the legal relief only incidental, that is, if it is necessary to determine whether plaintiff is entitled to the equitable before the legal relief can be granted, then it is an equitable action, and triable to the court without a jury. And if the primary or paramount relief is legal and the equitable relief only incidental, it is a jury case. 1 Kinkead Code Pleading, 246; Brundridge v. Goodlove, 30 Ohio St., 374; Converse v. Hawkins, 31 Ohio St., 209.
    In cases where a legal and equitable cause of action are joined, the parties had a right to separate trials of each cause of action, the legal cause to a jury, and the equitable cause to a court, unless one of the causes be incidental or so related, dependent or connected with the other, as that one cause may be paramount to the other, so that the right to appeal or to go up on error would be governed by the paramount relief. 2 Kinkead Code Pleading, 1296.
    In the cáse at bar the plaintiff was clearly entitled to a money judgment for damages, irrespective of any equity relief prayed for or granted, and each party had a right to a trial by jury. Ladd v. James, 10 Ohio St., 437.

      A claim for judgment on a note and for a sale on a mortgage are distinct claims. When united in one action, “as to any issue of fact affecting the claim to a personal judgment, there is a right to demand a trial by jury.” Brundridge v. Goodlove, 30 Ohio St., 374.
    An action to recover money damages and for injunction for the diversion of a stream, is not appealable. Bugh v. Sturgeon, 41 Ohio St., 402.
    The right of appeal is determined by nature of the action, and not by the form of the judgment rendered. Hull v. Bell Bros. & Co., 54 Ohio St., 228.
    In Raymond v. Railway Co., 57 Ohio St., 271, in which case plaintiff sued for possession of land, and to quiet title, and for an injunction, the court held that in an action for possession, either party was entitled to a jury, and therefore the action was not appealable.
    We think that all these Ohio cases sustain our contention, that the case at bar involved a “claim for the recovery of money only;” that, the legal right having been first determined by a jury, the court should exercise its equity powers to prevent a multiplicity of suits; and that the equitable remedy is only incidental to the legal one.
    There is no better settled principle of equity jurisprudence than that the remedy of injunction does not lie in favor of one who has a complete and adequate remedy at law. Bank v. Debolt, 1 Ohio St., 591.
    But, in the case at bar, the suggested remedy is neither complete nor adeauate. If plaintiff were to petition the countv commissioners to locate a ditch to take care of the water in question, he would- hardly find this remedy to be clear, complete and “as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.” Culver v. Rodgers, 33 Ohio St., 537; 16 Cyc., 41. And he would find, in this ditch proceeding no remedy whatever, adequate or otherwise, for his damage in the past from defendant’s acts of trespass.
    In Railway v. City of Greenville, 69 Ohio St., 487, this court held that a hearing before a city council was not such an adequate remedy at law. Is .the hearing on a ditch petition before commissioners any more so?
    Even if a ditch proceeding affords an adequate remedy at law, the court should simply have refused equitable relief, and should not have “dismissed the petition.”
    Plaintiff was still entitled to his action for damages. He cannot look to the county commissioners to assess damages on Bower for his past trespasses. At best, they can only provide for the future.
    If the appeal took up to the circuit court the judgment for damages, then the circuit court was wrong in dismissing the petition on the ground that plaintiff had a remedy at law.
    The right to an injunction failing, the only cause of action left to plaintiff was a legal one. That cause of action was in no way impaired by the finding of the circuit court; and it was error to dismiss the petition as to that legal cause of action. City of Wellston v. Morgan, 59 Ohio St., 147.

      In Ohio actions for damages and for injunctions have frequently been maintained and with the approval of this court, against those who wrongfully diverted water upon their neighbors. No court has heretofore held or ever suggested that a county ditch proceeding was a remedy, and an exclusive one, for this wrong. Butler v. Peck, 16 Ohio St., 334; Crawford v. Rambo, 44 Ohio St., 279; Railway Co. v. Franz, 43 Ohio St., 623.

      Mr. Frank C. Daugherty and Mr. William P. Henderson, for defendant in error.
    The right of appeal is determined by the -nature of the action, and not by the form of the judgment rendered. Hull v. Bell Bros. & Co., 54 Ohio St., 228.
    Whether a case is one in equity or at law, does not depend upon the understanding of counsel, or of the trial court, nor upon the form of the judgment rendered, but upon the nature of the action as shown by the pleadings. Raymond v. Railway Co., 57 Ohio St., 271.
    The cause of action stated in the petition is a single and .simple one, to-wit: that at or prior to the year 1897, defendant cut a ditch through a natural ridge or elevation of ground on his own land, and thereby diverted and cast upon plaintiff's land, large quantities of surface water, to which plaintiff's land is not naturally tributary.
    From this single cause of action arise two remedial rights, one legal, i. e., compensation for the damage wrought; the other equitable, i. e., a perpetual injunction against so diverting said surface water. Pomeroy’s Code Remedies, Secs. 453-4-5, 460.

      It is to be noted that both remedies depend upon the same evidence and arise from the same alleged wrongful act; if the evidence fails to sustain the claim for an injunction, it would equally fail to sustain the demand for damages, and vice versa.

    No one doubts but that plaintiff might so have framed his petition, as to have presented strictly a damage suit at law; he did not do so, precisely for the reason that such a remedy would not have been an adequate one; and 'so he came into an equitable forum, seeking a complete remedy. Presumably, what he wanted was the use of his farm, undisturbed by his neighbor’s surface water being diverted and cast upon it; inasmuch as he had to go into court anyhow, he also wanted an account taken of the damages he had already suffered from the same cause and compensation awarded therefor. Pie could obtain both of these results from the equity jurisdiction of the court, in a single action; from the law side, he could obtain only an equally uncertain and varying estimate of damages with his land still subject to the same inundations, and with the prospect only of an equally uncertain and varying estimate of damages from year to year in the future.
    The claims herein advanced are confirmed by the cases of Converse v. Hawkins, 31 Ohio St., 209, and Railway Co. v. Horner, 53 Ohio St., 648, also found in 33 W. L. B., 332; we claim these two judgments to be decisive of this branch of the case at bar.
   Price, J.

It has been a long time' since the plaintiff in error began his quest for justice in the court of common pleas. On August 15, 1902, he filed his petition against Bower asking judgment for damages for causing a part of plaintiff’s farm to be annually overflowed and crops destroyed during the six years preceding. As a part of his case he also asked the court to enjoin Bower from continuing the wrong. Issue was joined by a general denial — except that plaintiff owned his land — and trial was had to a jury in May, 1903. The jury found for the plaintiff and assessed his damages at $180, for which judgment was rendered, as well as for the costs of the action. Thereupon and on further hearing to the court, the defendant was enjoined from further diverting the water and throwing it upon the lands of the plaintiff. The defendant appealed to the circuit court and filed the bond for appeal August 1, 1903, and the transcript and other papers on August 8 of the same year. On September 28, 1903, a motion to dismiss the appeal was filed, containing as its ground that the case was not appealable. This motion was heard and denied by the circuit court at its February term, 1904. The case was continued by order of the court at each subsequent term until February 1907, —a period of three years — and then the plaintiff was turned out of court with some advice but without any relief whatever; a rather remarkable end to the long slumber of the case on the trial docket.

But before we further consider the latter end of the case, it is important that we notice a judicial event which transpired quite early in the proceedings of the circuit court. One of the errors assigned in this court is, that the “circuit court erred in overruling the motion of the plaintiff to dismiss the appeal of said defendant to said circuit court * * As already stated, the ground of the motion is that the case is not appealable. If' this motion had been sustained and the appeal dismissed, the responsibility of the circuit court would have there ended.

Our statement of this case shows that the action in the court of common pleas was to recover damages caused by the wrongful acts of the defendant. For six )^ears before suit was filed, it is alleged, the defendant trespassed upon the lands of plaintiff by interfering with certain physical conditions on his own and plaintiff’s lands so as to overflow the latter. The acts charged were trespasses in the broad meaning of the term, and the primary redress sought was damages, and as an incident to his right of recovery, if the same should be established, he asked that further trespass and injury be enjoined. If the plaintiff on this petition had asked for injunction as his sole remedy,' he would have been told that none could be granted because he had an adequate remedy at law, for it is a fundamental doctrine, underlying the entire jurisdiction of equity by injunction against the commission of trespass, that where adequate relief may be had in the usual course of procedure at law, equity will not interpose by the extraordinary remedy of injunction. The remedy at law is a bar to injunction. Fligh on Injunctions, Section 699.

The issue made up in the pleadings was an issue of fact for trial by jury, and with consent on all hands, the case was tried to a jury and its verdict for so much money was returned. Section 5130, Revised Statutes, provides that “issues of law must be tried by the court, unless referred as hereinafter provided; and issues of fact arising in actions for the recovery of money only, or specific real or personal property, shall be tried by a jury, unless a jury trial be waived or a reference ordered as hereinafter provided.”

In this case, the allegations on which plaintiff prayed for damages are the allegations on which an ultimate injunction was asked. Therefore there were not two causes of action each based on separateeand distinct facts, but one cause of action for damages, and if that should be sustained, then as ancillary relief, an injunction to prevent further injury. It was proper practice in actions founded on trespass such as disclosed in the petition, to first establish the legal rights of the plaintiff, and when that has been done, in order to avoid a multiplicity of suits, to have the repeating of the trespasses enjoined; and this may be done in the same action, upon sufficient averments for that purpose. If the jury had found for the defendant on the plaintiff’s demand for damages, an injunction would not have been granted, because the plaintiff had failed to make a case on the averments of his petition. The prayer for the injunction is predicated on the truth of the averments on which the recovery of damages is sought, and was granted when and only when the right of recovery had been determined by the jury.

Another view point is found in Section 5226, Revised Statutes, as to when an appeal may be taken to the circuit court. It reads, in part, “an appeal may be taken to the circuit court by a party or other person directly affected, from a judgment or final order in a civil action rendered by the common' pleas court, and of which it had original jurisdiction, if the right to demand a jury therein did not exist, * * It will require a high degree of courage to contend, as in brief of defendant in error, that under the issues joined in this case, the parties were not entitled to a jury. If the right to demand a jury existed the cause was not appealable. The foregoing provisions of our statutes have received construction in numerous cases, including Dunn & Witt v. Kanmacher & Stark et al., 26 Ohio St., 497; Chapman v. Lee, 45 Ohio St., 356; Gunsaullus, Admr., v. Pettit, Admr., 46 Ohio St., 27; Raymond v. Railway Co., 57 Ohio St., 271. The latter case contains an elaborate discussion of the subject, and the fourth paragraph of the syllabus is directly in point here.

What have we in this record? The tail of the case, to-wit: the supplication for an injunction at the close of the plaintiff’s allegations of wrong— taking up by appeal the entire lawsuit; — the jury issues — the verdict of the jury and the judgment thereon, as an accompaniment of the order of injunction; for it is contended that such did actually happen by reason of the appeal, so that the verdict and judgment thereon were suspended. We are not able to concur in such views, but, on the contrary, we think the action is one for damages as the primary relief, and the relief by injunction is ancillary thereto. We therefore hold that the circuit court should have sustained the motion to dismiss the appeal and that its refusal so to do is error.

Having refused to dismiss the appeal, in course of time the court took up the case for hearing and consideration, and the record shows the following disposition of the controversy, under date of February 21, 1907. “This day this cause came on to be heard and was submitted to the court upon the pleadings and the evidence and was argued by counsel, upon consideration whereof the court find for said defendant, and that said plaintiff is not entitled to the relief prayed for in his petition, either in the form of an injunction or in the form of damages, it being the opinion and finding of the court from the evidence that said plaintiff had and has an adequate remedy at law by means of proceedings before the county commissioners of said county for establishment of ditches, drains and watercourses. It is therefore ordered and adjudged and decreed that the petition of the said plaintiff be and the same hereby is dismissed without prejudice, however, to his right to pursue his said remedy at law, and without being concluded in pursuing said remedy by any finding herein made.” The court then ordered each party to pay his own costs.

This disposition of the case is certainly unique. Notwithstanding- the fact that a jury had found that plaintiff had been damaged as he had alleged, the court, believing that it had acquired jurisdiction of that subject by apneal, decided that plaintiff was not entitled to relief “in form of damages,” nor to relief in “the form of an injunction.” If the court had jurisdiction to hear and determine .the claim of damages, and found that plaintiff yras not entitled to recover on the allegations of his petition, it would follow that the relief by injunction would be denied, because the ground of his action had failed. The reason assigned by the court for its findings is’ that plaintiff has “an adequate remedy at law, by means of proceedings before the county commissioners of said county for the establishment of ditches, drains and watercourses.”

The plaintiff had resorted to his remedy at law and had pursued it to verdict and judgment, and it is a harsh saying under such circumstances, that his adequate remedy at law is to go before the county commissioners and implore them to establish a ditch or ditches to drain his lands. It is indicated in the record that plaintiff may have had tribulations of that kind before, for in his petition he accuses the defendant of filling up or obstructing a township ditch as a part of the scheme to overflow plaintiff’s lands. The court entertained the case on appeal and then commended the plaintiff to the tender mercies of the county commissioners: This was the unkindest cut of all. He asked for a fish, but they g-ave him — water.

The judgment of the circuit court is reversed and set aside; the motion to dismiss the appeal is sustained and the appeal dismissed, and the case is remanded to the court of common pleas for such proceedings as are authorized by the law and this opinion.

Judgment reversed.

Crew, C. J., Summers, Spear, Davis and Spiauck, JJ., concur.


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    Straight v. Hover.

      Contamination of stream — Lower proprietor of lands entitled to damages- — Upper owner of lands operates for petroleum — Salt water discharged into stream — Operation conducted with care and in only practicable mode.

    1. It is the right of the lower proprietor of lands upon a running stream to receive the water from upper proprietors free from contamination by artificial means, and for substantial injuries which result from an invasion of that right he may maintain an action without regard to the motive which prompts the invasion.
    2. An upper owner of lands upon such stream who operates them for underlying petroleum by pumping it and the salt water with which it 'is commingled into tanks and, after the petroleum rises, withdrawing the salt water from beneath and discharging it by gravity into the stream is liable in compensatory damages for such substantial injuries as may be sustained by a lower proprietor in consequence of the water in the stream being thereby rendered unfit for the use of live stock and destructive of the grass with which it comes in contact, although such operation is conducted with care and in the only known practicable mode of developing the mineral resources of his lands.
    (No. 10646
    Decided January 26, 1909.)
    Error to the Circuit Court of Allen county.
    Mrs. Hover brought suit in the court of common pleas to recover from Straight damages which she alleged were sustained by her in consequence of his polluting a stream of water which naturally flowed from his premises upon hers, the pollution resulting from Straight’s operation of his lands for underlying petroleum, in which operation petroleum was separated from salt water with which it is commingled, and the salt water discharged into the stream rendering its water unfit for her live stock and causing it to overflow and injure the grass of her' pasture land through which the stream flows. Straight answered setting up three defenses. On the first and second defenses the cause was tried to a jury which found for the plaintiff in the sum of $102.25 for which judgment was rendered in her favor. Upon those defenses no question now arises. The question here presented arises upon a third defense, to which the court of common pleas sustained a general demurrer. In that defense Straight alleged that he cast no water or other substance upon the plaintiff’s lands except by the stream which naturally flowed from his lands to hers, that he was engaged in operating his lands carefully and in the only known mode for operating lands for underlying petroleum, and that the resulting discharge of the salt water raised from his wells into the stream, which was the natural drainage of the basin, was inevitable. The demurrer to this defense having been, sustained in the court of common pleas, judgment in favor of the plaintiff was entered and that was affirmed by the circuit court.

      Messrs. Richie & Leland and Mr. John W. Roby, for plaintiff in error.
    The cases relating to the pollution oi streams by factories, or in the course of any artificial use of the soil, do not apply to such facts as are here involved. The factory can be located elsewhere than at the point where the damages accrues. The oil on the other hand has been put in place by nature, and its production is but a natural use of the property where found.

      If the right of operating for it be denied then the owner is deprived of one of the natural uses of his property, and mankind is deprived of the use of one of earth’s great natural resources.
    It can not be said that the 'rule that one must use his own so as not to injure his neighbor applies. Iron & Steel Co. v. Kenyon, L. R., 11 Ch. Div., 783.
    Nor does the mere fact that damage has ensued entitle one to relief. It may be damnum absqiie injuria and as we have said in the Sander-son case hereinafter referred to, “It may be stated as a general proposition that every man has the right to the natural use and enjoyment of his own property, and if, while lawfully in such use and enjoyment, without negligence or malice on his part, an unavoidable loss occurs to his neighbor, it is damnum absque injuria, for the rightful use of one’s own land may cause damage to another without any legal wrong.”
    In Pennsylvania and Indiana this question has been fully discussed and settled to the effect that where others are injured by a natural use of property, it is but damnum absque injuria. Barnard v. Sherley, 135 Ind., 547, 34 N. E. Rep., 600, 35 N. E. Rep., 117, 41 Am. St., 454, 24 L. R. A., 568.
    The same question was reconsidered and former decision approved in Barnard v. Sherley, 151 Ind., 160, 41 L. R. A., 747, 47 N. E. Rep., 671.
    The leading case on the subject is Coal Co. v. Sanderson, 113 Pa. St., 126, 57 Am. Rep., 445, 6 Atl. Rep., 453.
    In this latter case the process of mining • developed a stream of acidulated water, which was permitted to flow into the water course of the basin in which the coal mine was situated, to the material damage of a lower riparian land owner. The court sustained the right of the mine owner to permit such flow.
    It will not do to say, in the case at bar, that this water could be diverted from land of plaintiff below by the use of a sewer or ditch, for then it must be. thrown into some other water course, and, as was said in the Sanderson case, “It pan not be said where short of the sea, such sewerage could stop.” C. & H. C. & I. Co. v. Tucker, 48 Ohio St., 41, was relied on by the court below as authority for its ruling in sustaining its demurrer to the third defense. This case is one where the coal slack was deposited on the land of the miner in such a position that a stream of water washed it down and over the land of the adjoining owner. A coal slack case is in no way parallel to a water case. The coal slack is something which by its very nature may either be disposed of by burning or so deposited as to remain where placed. The fact that the miner in the Tucker case did not have sufficient land for the storage of his slack did not relieve him from caring for the same. But water has a natural flowage and may not in its nature be indefinitely contained.
    The Pennsylvania courts recognize this distinction and fully uphold the principle laid down in 48 Ohio St. by two well known decisions. Elder v. Coal Co., 157 Pa. St., 490, 27 Atl. Rep., 545, 37 Am. St., 742; Hindson v. Markle, 171 Pa. St., 138, 33 Atl. Rep., 74.

      Nor in considering the Ohio coal slack case (48 Ohio St., 41) should the fact be lost sight of that the decision was predicated primarily on a criminal statute prohibiting the depositing of coal slack in the manner in which it was deposited in that case. \
    Though it has often discussed the question, our legislature has always, in view of the great property interests at stake, refused to prohibit by criminal statute the flowage of salt water into the streams of the state. Section 6925, Revised Statutes, now permits such flowage. It would certainly seem that the declaring of certain acts named in this section to be unlawful, but expressly, excepting the running of “fresh and salt water” into water courses, from the list of unlawful acts, fixes the right to run fresh and salt water into water courses as clearly as if it had said that such an act is lawful- — -that certain acts are unlawftil but this act is not unlawful.
    The Pennsylvania courts have directly and specifically applied the principle of the Sanderson case to numerous oil mining cases. Pfeiffer v. Brown et al., 165 Pa. St., 267, 30 Atl. Rep., 844.
    In considering the applicability of the case last cited to the case at bar it must be remembered that the third defense, the demurrer to which was sustained by the lower court, avers that it was only possible to successfully and profitably operate the oil wells of the plaintiff in error here by disposing of the salt water in the manner in which he was disposing of the same.

      Messrs. Ridenour & Halfhill, for defendant in error.
    The drilling and operating of oil wells is a form of mining, and is therefore controlled by the laws applicable to mining. We do not contend that the drilling of oil wells is an unusual use of the lands as compared with those engaged in the same forms of business in certain localities, but is an exceptional use rather than a common and ordinary use. It is not incidental to the use of the soil itself, and yet, indeed, it is destructive of what is the most common use of the soil, viz: for agricultural purposes.
    The doctrine on which the cases in Pennsylvania and Indiana have been decided, viz: that it is the development of the natural resources of the country, does not apply in Ohio. The common pleas court in sustaining the demurrer to the defendant’s answer and applying the law in the trial of this case followed the doctrine and rule that prevails in most of the states, and especially based its ruling upon the case of C. & H. C. & I. Co. v. Tucker, 48 Ohio St., 41.
    The court in its charge to the jury also relied upon the above authority as being the law governing this case, and we maintain that the charge in substance contains the rule of law as announced in the above case.
    The plaintiff in error contends that he has operated his wells as is customary in the Ohio and Indiana oil fields and in the only way that oil wells can be successfully operated at a profit, etc. The same argument was used by the coal company in C. & H. C. & I. Co. v. Tucker, supra.

      The plaintiff in error also contends that he has conducted his business in the only practical way. This contention was also made in C. & H. C. & I. Co. v. Tucker, supra. We think this case is in common with the case in review: that all of the claims made by the plaintiff in error are answered and fully decided by this court in that case.
    The entire brief of plaintiff in error is based upon the rule laid down in Barnard v. Sherley, 135 Ind., 547, and 151 Ind., 160, and Coal Co. v. Sanderson, 113 Pa. St., 126, and a few other cases decided in Pennsylvania following the rule announced in 113 Pa. St.
    The doctrine of the Pennsylvania and Indiana cases is not followed by a majority of the states. The Ohio rule, announced in 48 Ohio St., is the rule observed in the following cases: Jacobs v. Allard, 42 Vt., 303; Manufacturing Co. v. Atlantic De Laine Co., 10 R. I., 106; Washburn v. Gilman, 64 Me., 163; Canfield v. Andrews, 54 Vt., 1; Robinson v. Coal Co., 57 Cal., 412; Roller Mills v. Wright, Admx., 30 Minn., 249.
    Any use that materially fouls and adulterates the water, or the deposit or discharge therein of any filth or noxious substance that so affects the water as to impair its value for, the ordinary purposes of life, will be deemed a violation of the lights of the lower proprietor. Baltimore v. Manufacturing Co., 59 Md., 96.
    Mine water can not be turned into a stream in such way as to pollute it, although the pollution is nothing more than to render the water which was before soft and suitable for distilling purposes, hard, and unfit for such purposes. Young & Co. v. Distillery Co., A. C. 1893, 691.

      An upper proprietor can not throw poisonous and corrosive substances into the stream so as to corrupt the water to the extent that the machinery of the other proprietors on the stream is corroded and destroyed and the use of the water for reasonable and proper purposes impaired and perverted. Merrifield v. Lombard, 13 Allen, 16.
    The owner of a bleachery will not be permitted to turn the chemicals used in his business into the stream so as to render the water unfit for domestic use for the lower proprietor. Holsman v. Bleaching Co., 14 N. J. Eq., 335.
    A stream can not be polluted for mining purposes. Beach v. Iron & Zinc Co., 54 N. J. Eq., 65.
    Water can not be polluted by washing iron ore to such an extent as to render it unfit for the domestic use of the lower, proprietor. Coal, I. & R. Co. v. Hamilton, 100 Ala., 252; Hunter v. Coal Co., 16 Ky. L. Rep., 190.
    There is no difference in' the rules governing natural and artificial watercourses. So if the right to an artificial course has been acquired, mine water can not be turned into it in such a way as to pollute it. Magor v. Chadwick, 11 Ad. & El., 571.
    Many other cases can be cited from the various states supporting the Ohio doctrine.
    The plaintiff in error, however, contends that the case of The C. & H. C. & I. Co. v. Tucker, 48 Ohio St., supra, was based on a criminal statute. It is true that there is a criminal statute declaring that the depositing of refuse from a mine in certain places constitutes a nuisance; but the court decided the case on the principles of the common law and did not rely upon the criminal statute.
    The plaintiff in error has seen proper to cite Section 6925, Revised Statutes, making it a misdemeanor to permit petroleum or crude oil or any compound or mixture or other product of such well, except fresh and salt water to escape into a water course, etc., and he argues'that by reason of the fact that salt water is excepted from this criminal statute, that it becomes lawful to permit salt water to flow into any stream of this state in any quantity. -This is true only to the extent that the rights of the lower proprietor in said stream and his said land be not injured.
    This statute can in no way vary the rule requiring one to respond in damages for permitting salt water to flow into a stream in stich quantities as to injure the lower proprietor. It is the abuse of the upper proprietor in permitting the salt water to flow in such quantity as not only to destroy the water in the stream, but also to injure the realty itself that is complained of and for which suit is brought.
   Shauck, J.

Counsel for defendant in error cite as complete authority for the judgment under review, The C. & H. C. & I. Co. v. Tucker, 48 Ohio St., 41, and it is said that the case was so regarded in the courts below. In that case it was held that, where in the operation of a coal mine, coal slack, dirt and refuse are washed down upon the lands of a lower proprietor to his injury, an action lies to recover damages therefor, the deposits having been made intentionally upon the defendant’s premises though made in the conduct of the business in accordance with the general practice in the operation of similar coal mines in the surrounding district. That case may not be full authority for the judgment of the courts below in the present case since it did not affirmatively appear there, as it does here, that the injury resulted from the careful pursuit by the defendant of the only known mode in which it was practicable to develop the mineral resources of its lands. While the facts upon which the original plaintiff counted in The Salem Iron Company v. Hyland et al., 74 Ohio St., 160, were substantially the same as those presented here, a different remedy was sought. In that case we concluded, that inasmuch as the plaintiff could not be entitled to a remedy in equity unless it could recover at law and the injuries complained of did not amount to an appropriation of its property, but merely constituted a nuisance which might be adequately compensated in damages, the equitable considerations presented would not justify us in rendering a decree which would in effect deny to the'defendants the opportunity of bringing to the surface and subjecting to use the petroleum underlying their lands. Whether the injuries which resulted to the plaintiff from the discharge of salt water into the flowing stream which it had been accustomed to use in its natural state of comparative purity was a burden to which the lower proprietor must submit without remedy, or was a proper subject for compensation in damages, was expressly left undetermined.

The view which counsel for the plaintiff in error urges upon our attention is, that he has an. undoubted right to develop the resources of his land by bringing the underlying petroleum to the surface and preparing it for market, that throughout the Ohio field it is commingled with salt water from which it must be separated by pumping it into tanks and by drawing the salt water from beneath the petroleum after it rises, that the salt water can not be indefinitely confined, and that drainage effective to prevent its uniting with the fresh water of flowing streams can not stop short of the sea. The conclusion is, that since he is carefully exercising a right in the only known practicable mode he incurs no liability for the consequences which result. This view has won the approval of courts in a few of the cases contained in the reporter’s abstract of the briefs. Of these the leading case is Pennsylvania Coal Company v. Sanderson, 113 Pa. St., 126, which is not distinguishable from the present case by any fact of legal significance. Water necessarily developed in the operation of a coal mine was discharged into a stream which was the natural drainage of the basin and resulted in such a change in the character of the water of the stream as rendered it unfit for the uses to which it had been devoted by the lower proprietor when received in its natural state. Suit having been brought to recover for such injurjq the trial court took the view now urged by counsel for the plaintiff in error here and the judgment was adverse to the right to recover. In a proceeding in error in the supreme court the judgment was reversed, six of the seven judges concurring. The view taken by the Supreme Court of Pennsylvania in that case, and elaborated in its opinion, is well expressed in the syllabus: “The invasion of an established right will in general per se constitute an injury for which damages are recoverable, for in all civil acts the intent of the actor is less regarded than the consecjuences to the party suffering. However laudable industry may be, its managers are still subject to the rule that their property, can not be so used as to inflict injury on the property of others.” This view of the law was applied to the following concrete case: S. purchased a tract of land in the coal regions, upon which he erected a handsome residence. One of the principal inducements to the purchase was that a stream of pure mountain water ran through the tract, and a number of valuable improvements were made in order that the residence and grounds might be supplied with water for culinary, bathing and other purposes. Shortly after these improvements were completed a mine was opened by defendant on the stream about two miles above the land of S., the water from which when pumped or flowing naturally therefrom ran into the stream and so polluted it as to render the water unfit for any of the uses to which S. had adapted it. Upon the above facts the court below entered a nonsuit, on the ground that in the absence of negligence or malice this was damnum absque injuria. Held, that S. had a right of action and the case should have been submitted to a jury. The harmony between the law of' England and that of the United States upon the subject was assumed, for much reliance was placed upon the instruction given by Mr. Justice Mellor in St. Helen's Smelting Company v. Tipping, 11 H. L. Cases, 642, which had been approved in the Queen's Bench in the Exchequer Chamber and in the House of Lords. The judgment of the trial court in the Sanderson case, being reversed upon the view of the law above expressed, the case was remanded to the court of common pleas where it was again tried, the trial - resulting in a judgment for the plaintiff. The controversy of the parties appeared in the supreme court of the state upon three occasions in addition to the one already noted. In every instance the supreme court adhered to the right of the plaintiff to recover under the conditions stated, except the last which is reported in 113 Pa. St., page 126. In that case, four of the seven judges concurring, the doctrine previously announced was rejected and the court denied the right to recover. The condensed proposition expressing the later view of the court is as follows: Damages resulting to another, from the natural and lawful use of his land by the owner thereof are, in the absence of malice and negligence damnum absque injuria. One operating a coal mine in the ordinary and usual manner may upon his own lands drain or pump the water which percolates into the mine into a stream which forms the natural drainage of the basin in which the mine is situate, although the quantity of the water may thereby be increased and its quality so affected as to render it totally unfit for domestic purposes by the lower riparian owners. The use and enjoyment of a stream of pure water for domestic purposes oy the lower riparian owners, who purchased their land, built their houses and laid out their grounds before the opening of the coal mine, the acidulated waters from which rendered the stream entirely useless for domestic purposes, must ex necessitate give way to the interests of the community, in order to permit the development of the natural resources of the country and to make possible the prosecution of the lawful business of mining coal. The final conclusion was reached by a nearly equally divided court, and the change of view apparently resulted from changes in the composition of the court. The case, though obviously weak as an authority, seems to have had much to do with the decisions in Barnard v. Sherley, 135 Ind., 547, and 151 Ind., 160. But the final judgment in that case was based upon an elaborate finding of facts .from which, in connection with the opinion, it appears that the conclusion was also much influenced by the consideration that the lower proprietor’s right to recover is only for injuries of a substantial character which have been caused by the defendant, and that it does not extend to such promiscuous and general consequences as unavoidably attend the substitution of urban for rural conditions.

The Sanderson case was a manifest departure from the rule of law often stated, and generally regarded as well settled, that although there is a servitude upon the lower proprietor to receive the natural flow of water from higher grounds, it is his right to receive it in its natural state and without deleterious change effected by artificial means. The case was cited as an authority in John Young & Company v. The Bankier Distillery Company, App. Cases, 1893, page 691, where Lord Watson said of it: “Against the principle the appellants were able to cite only one American case, which I do not notice further, because it was decided on the express ground that in so far as concerns the present question, the law of Pennsylvania essentially differs from the law of England.” In another opinion in the same case it was said that Coal Company v. Sanderson proceeded upon considerations which characterize making law rather than interpreting the law so as to give effect to sound, just and well recognized principles as to the common interest and rights of upper and lower proprietors in the running water of a stream. This criticism seems to be justified by the attention which was given to considerations which tended to obscure, rather than make clear, the settled principles of the law. It is familiar that one who merely exercises a right is not liable for the consequences which result to another, even though he is prompted by malice, and that the motive which prompts one to a wrongful act may determine whether he is liable for exemplary or only actual damages. But was it ever before considerately held that one who invades the rights of another is not liable for such actual damages as ensue merely because the act was not done maliciously? An erroneous conclusion would naturally issue from such confusion of legal and theological considerations. Nor did the court limit the opportunities for the intervention of error when it turned its attention from the legal principles which it, with other courts of this country and England, had often declared, and permitted itself to become concerned regarding the interests of the community and the extent to which public interests might be impaired if, in cases of this character, it should continue in the familiar course of adjudication. However numerous may be the persons who engage in mining- for coal and petroleum, however laudable may be their undertakings, these are but private 'enterprises instituted and conducted for private gain which may be acquired only with due regard to the rights of lower proprietors, whose numbers must always at least equal theirs, and in accordance with the principles upon which all titles are held. Without further exposition of this familiar subject, notwithstanding a few cases to the contrary, we adhere to the established rule upon the subject which is expressed in the syllabus. This case considered in connection with The Salem Iron Company v. Hyland et al., places us in the position of holding, that in cases of this character where the invasion of the rights of the lower proprietor does not amount to an appropriation of his property, but merely constitutes a nuisance, an injunction- will not be allowed to prevent the development of the resources of the lands of the upper owner, but that an action will lie for the recovery of such substantial damages as the lower proprietor may sustain by reason of such operations. With that position we are content since it seems to regard all the principles which the rights of the parties require us to recognize. The judgment in the present case appears to have been carefully restricted to the actual injuries sustained by the original plaintiff and it will be affirmed.

Judgment affirmed.

Crew, C. J., Summers, Spear, Davis - and Price, JJ., concur.


author: Davis, J.

text:
    Fowler v. Delaplain.

      Question to witness for opinion — Incompetent—Oral permission to occupy land — Is a license and revocable, when — Although valuable improvements are made by licensee — Terminated by death— Oil lease — Does not permit right of land cttltivation, when.

    1. A question to a witness which calls for his opinion on the precise issue of fact which the jury is sworn to determine from the evidence, is incompetent.
    2. Where a landowner orally gives permission to another to occupy and use certain land, but does not grant or attempt to grant any interest in the land, and the landowner ass.umes no obligation on his part with regard to such occupation or use, the possession and use of the land are under a bare license, which is revocable at the pleasure of the licensor; and this will be so, although the licensor has silently acquiesced in the making of valuable improvements and the erection of structures on the land by the licensee.
    3. Such a license is terminated by the death of either of the parties.
    4. An oil lease which grants to the lessee the exclusive right to mine for and produce petroleum and natural gas from a certain tract of land' and the possession of so much of said land as may be necessary therefor, does not give to the lesgee the right to occupy and use any portion of the land for purposes of cultivation or for residences and conveniences for employes, but confines the occupancy and use of the surface to so much as is strictly necessary for mining and producing purposes.
    (No. 10745
    Decided January 26, 1909.)

      Error to the Circuit Court of Monroe county.
    The defendant in error commenced an action in the Court of Common Pleas of Monroe county to recover possession of certain real property situate .in that county and for damages for the unlawful detention of the same. The plaintiff in error defended first upon a general denial of the plaintiff's right of possession. Second, he alleged that he was placed in possession of the premises by William A. Delaplain, under whom the defendant in error claims title, and was in possession thereof at the time that the defendant in error became seized of the legal title; that he went into such possession under a contract with William A. Delaplain that the plaintiff in error should have and retain possession of said premises and quietly enjoy the same so long as he was engaged as an employe of the parties who owned the leasehold on the W. A. Delaplain farm, and was operating the same for oil and gas; and he alleged that under such contract he erected buildings upon the said premises and occupied them and that he is still an employe of the parties holding" said leasehold and who are operating the farm for oil and gas. His third defense sets up a lease for oil and gas purposes given by William A. Delaplain and wife to F. L. Mooney on the farm of which the premises claimed in this action constitute a part. The provisions of the lease relied on are as follows: “That the lessor does hereby grant unto the lessee for the term of five years (and so long thereafter as oil or gas is produced from the land leased and royalty or rentals paid b3>" the lessee therefor) the exclusive right to mine for and produce petroleum and natural gas from and the possession of so much of four hundred and thirty acres of land in Washington township, Monroe county, Ohio, as may be necessary therefor. Lessee is to have all the rights and privileges necessary for the proper use and enjoyment of this lease.” He further alleged in this third defense that he was placed in possession of the dwelling house on the premises claimed by the defendant in error by the parties holding the lease and operating the farm; that he is an employe of the lessee and that such occupancy and possession was reasonably necessary for the proper, economical and safe operation of the premises for oil and gas under said lease.
    The defendant in error demurred to the second and third defenses of the answer and the court of common pleas overruled the demurrer. The defendant in error then filed a reply admitting' the possession of the plaintiff in error at the time of the death of William A. Delaplain; admitting that the plaintiff in error was and is an employe of the parties operating the lease; admitting that the plaintiff in error took possession of the premises during the lifetime of William A. Delaplain; admitting that the title of the defendant in error to said premises came to her by devise from William A. Delaplain; admitting the execution of the lease for oil and gas; and denying all the other allegations of the second and third defenses of the answer. On -the trial a verdict was returned in favor of the plaintiff in error and judgment was rendered on the verdict. A petition in error having been filed in the circuit court the said court reversed the judgment of the .court of common pleas for the reason that the court erred in admitting testimony on the part of defendant below over the objection' of the plaintiff below. This proceeding is prosecuted to reverse the judgment of the circuit court and to obtain an affirmance of the judgment of the court of common pleas.

      Messrs. Mallory, Jeffers & Sears, for plaintiff in error.
    Mining for, and the producing of oil and gas, is not an industry, trade or calling that is within the general knowledge of all persons. The jury being unacquainted with the business would not have the same knowledge of the necessity of having buildings on the lánds operated as would persons engaged in the business of operating and producing oil and gas.
    The question asked the witness is not one of expert testimony, but is a case, where the primary facts upon which the necessity arises to use a part of the surface of lands operated for oil and gas for buildings, can not be placed before the jury in any other practicable manner and form, other than that pursued in the trial of this case.
    We recognize the general rule, that where the jury are as capable as the witnesses, of forming an opinion upon the facts stated, the opinions of witnesses are - not competent; but we claim we are within a well recognized exception to the general rule, and that the evidence was admissible. Railroad Co. v. Schultz, 43 Ohio St., 270.
    The lease, as shown by the record in this case, is more than a mere license; it is a lease of the land, oil and gas for-a limited time and purpose, with the right of possession to the extent reasonably required for such purpose. Oil Co. v. Crawford, 55 Ohio St., 176.
    The instrument grants the oil and gas, and also the land for the purpose of operating thereon for said oil and gas, and it is therefore a lease and not merely a license.

      Messrs. Mats & Kremer; Messrs. Kennon & Kennon and Messrs. Winn & Bassett, for defendant in error.
    The third defense of plaintiff in error’s answer is interposed on the theory that the clause “lessee is to have all the rights and privileges necessary for the proper use and enjoyment of this lease,” gives the lessee the right to use the surface of the land for any and all purposes connected' with the operation of the lease for oil and gas and, in particular, that the lessee may use the surface for the purposes of constructing thereon houses for employes.
    The real subject of the grant was the-gas and oil, contained in or attainable from the land, or rather the right to take possession of the gas and oil by mining and boring for the same and not the lands or the surface. Brown v. Spilman, 155 U. S., 665, 15 Sup. Ct. Rep., 245.
    The expression “lessee is to have all the rights and privileges necessary for the proper use and enjoyment of this lease” certainly meant the privi-lege of building such structures and erecting such fixtures as were necessary to properly develop the lease, which would include rights of way to and from the place of operation, erection of derricks, tanks, shackle works, boiler houses, in short, any and all rights necessary in the operation.
    Now upon what theory is it necessary in the successful operation of that leasehold for oil and gas, that this employe, known as “pumper” should reside upon the lease? We think it evident that the house for the pumper is erected by the lessee, not as a necessity or even a convenience or benefit to the operation, but rather as a convenience for the pumper.
    The plaintiff in error claimed that he had a right, by virtue of the terms of the lease, set out in the third defense, to hold possession of the premises in question because it was necessary in the operation of the lease.
    The direct question, therefore, for the jury to answer was whether or not it was necessary in the operation of that lease for oil and gas for the lessee to maintain houses for pumpers upon the lease. This question, the jury should answer from the evidence, and the evidence alone. If the court was right in overruling the demurrer and admitting any evidence under the third defense the court should have admitted such evidence as would put the jury in the light of all the facts. The witness might then have been permitted to testify as to the peculiar methods and manner of operating and the peculiar duties of a pumper and distance away from habitation and the like, and thereby enabled the jury to determine the question at issue. The court had no right to permit the witness to put into the mouths of the jurors, the very question that they were to decide. Railroad Co. v. Schultz, 43 Ohio St., 270.
   Davis, J.

The trial court, over the objection of the plaintiff, allowed the defendant to propound to several witnesses this question, “What buildings or structures were necessary to be placed upon this lease in order that the same might be properly operated for oil and gas?” The circuit court held that this was prejudicial error; and for that reason reversed the judgment of the court of common pleas and remanded the cause to that court for a new trial. Thus far the proceedings by the circuit court were strictly, correct. The question called upon the witnesses to answer in regard to one of the ultimate facts which it was the province of the jury only to answer; but the jury can not be aided by the opinions of those who are not triers of the facts as to the very issues which the jury is itself sworn to determine from, evidence. Witnesses, if properly qualified, may testify as to facts of such evidential value as would assist the jury in arriving at its cqnclusions upon the determinative questions of the case; but if the vital issues involved in a cause can be decided upon the mere opinions of witnesses, however expert, as has often been remarked, juries might be dispensed with altogether. Ohio & Indiana Torpedo Co. v. Fishburn et al., 61 Ohio St., 608; Railroad Co. v. Schultz, 43 Ohio St., 270, 282, 283.

However, we think that the circuit court might safely have gone much farther. One of the assignments of error in that court was that the court of common pleas erred in overruling the demurrer 'to the second and third defenses*of the defendant’s answer. ■ The defendant’s second defense met the assertion of the plaintiff’s claim of title and right to possession by alleging that the plaintiff acquired title by devise and subject to all the burdens which existed on the property at the death of the testator; and that the defendant was placed in possession of the premises in controversy by the testator, who was also the lessor in the oil lease, under an oral contract that defendant should have and hold possession of the premises so long as he was engaged as an employe of the parties who owned the leasehold and was operating the same for oil and gas; and that the defendant was in possession thereof at the time the plaintiff became seized; and that under this oral agreement and with knowledge on part of the plaintiff’s testator the defendant erected .and has occupied until now, as an employe of the owners of the lease hold, the buildings on the premises in controversy in this action.

The substance and effect of this defense is that the defendant claims to be in lawful possession of the disputed premises under a parol license from the owner to himself and not under the oil lease which was granted to his employers. That which he alleges as a contract is merely a permission, without consideration, to occupy and use the premises for an indefinite time and without the grant of a permanent interest in the land of any kind whatever. It was neither a lease nor an easement; but was merely an oral license to occupy for a temporary purpose. Being a license not coupled with an interest in the land it is revocable at any time. As such it was probably revoked by the licensor when he devised the property to the plaintiff below, the defendant having no interest in the land; and certainly it was terminated by the death of the licensor, because, not being an interest running with the land, the permissive right expired with him who gave it (see 2.5 Cyc., 651, n. 61); and it was again revoked by the plaintiff below, the admitted owner of the legal title to the premises.

In some of the states, and heretofore to some extent in this state, equity will not allow an executed license to be revoked. This is upon the ground that a revocation wotild operate as a surprise and fraud upon the licensee. Probably this rule has never been applied unless the license was' connected with an attempted grant of an interest in real estate. But even in jurisdictions where it prevails to its fullest extent, it has been held that a mere naked acquiescence, such as is alleged in this case, in the construction of valuable improvements or the expenditure of money, on the faith of the license, will not render it irrevocable. Ewing v. Rhea, 37 Ore., 583; Kipp & Kendall v. Coenen & Bechtell, 55 Iowa, 63. And see Wilkins v. Irvine, 33 Ohio St., 138. In the license which we are now considering the licensor did not undertake to do anything nor to grant any interest in the land, permanent or otherwise. The licensee took the premises by mere sufferance and took possession with the possibility that the license might be revoked at any time; and any expenditures or improvements which he may have made under such conditions, he made for his own convenience and at his own risk.

It scarcely needs to be mentioned that if this were an unquestionable case of an executed license, it would come within the recent ruling of this court in Yeager et al. v. Tuning et al., ante., 121.

In his third defense the defendant claims that he is in possession and entitled thereto as the tenant of the leaseholders, who have “the exclusive right to mine for and produce petroleum and natural gas from and the possession of so much of 430 acres * * * as may be necessary therefor” etc., of which the disputed premises are a part; that it is provided in the lease that the “lessee is to have all the rights and privileges necessary for the proper use and enjoyment of this lease;” and ■that the possession and occupation of the premises held by the defendant as employe and tenant of the lessees under the oil lease are necessary to the proper, economical and safe operation under the oil lease and is one of the rights granted under that lease. The demurrer challenges the sufficiency of this defense and involves a construction of the lease.

The grant in the lease is “the exclusive right to mine for and produce petroleum and natural gas from and the possession of so much of 430 acres of land * * * as may be necessary therefor.” The further stipulation that the “lessee is to have all the rights and privileges necessary for the proper use and enjoyment of this lease,” does not seem to enlarge the grant. The separation of the surface rights from the mineral rights is very plain in this instrument. The grant to the lessee is exclusive as to the right to mine for and produce from the entire 430 acres, while as to the surface the grant is of only so much as may be necessary “therefor,” that is, so much as may be necessary for “mining and producing” oil and gas. The lease contains no stipulation authorizing the lessee .to sub-let to his employes any of the surface for barns, residences, yards, gardens, pasture lots, etc., as accessory to and convenient for the operation of the lessee’s mining privileges; but the right to the surface is expressly and clearly restricted to so much as may be “necessary” for mining and producing, that is for stationing and operating machinery, tanks, pipes, and the like, with the right of passage to and from the same. The lessee could therefore assume no broader rights than those named; and when he undertook to determine for himself, if he did so undertake, that he and his employes could occupy the land to an indefinite extent for his own convenience, he did so at his own risk and both he and they became trespassers as to the land so taken.

The judgment of the circuit court reversing the judgment of the court of common pleas is affirmed.

The cause will be remanded to the court of common pleas with instructions to sustain the demurrer to the second and third defenses of the answer and for such other proceedings in accord with this opinion as are authorized by law.

Judgment accordingly.

Crew, C. J., Summers, Spear, Shauck and Price, J'J., concur.


author: Spear, J.

text:
    Willis, Admr., v. Braucher, Guardian.

      Testator in will gives executor and trustee — Power to sell personal estate — And reinvest proceeds — Trustee invests in bank stock— In good faith and zvith proper care — Trustee not personally liable for loss — If stock becomes valueless — Scope and interpretation of section 6413, Revised Statutes.

    1. The provision of a will by which the testator gives to his executor and trustee and his successors in the trust, whenever in his or their judgment the interests of the estate shall demand, power to sell at private sale or' otherwise, all or any part of his personal estate in such manner and upon such terms as may be deemed best and deliver for any or all real estate sold deeds acknowledged by him or them, and reinvest the proceeds arising from any such sales in such manner as he or they may think best, to dispose of any property real or personal so acquired and reinvest the proceeds in the same manner, serves to extend the scope of the statute (section 6413, Revised Statutes), governing investments by trustees, and relieves the trustee from the requirements of said section.
    2. Where, in such case, the funds of the estate required to be invested in order to produce income are invested by the trustee in the stock of a state bank at current market rates, and the trustee, in making such investment, uses discretion and care in ascertaining the value ofathe stock, and with the honest belief exercised in the utmost good faith that the bank is sound and the stock a good investment, acting in that behalf on the advice of business men of sound judgment, having means of knowing the market value of the stock, including the judge of the probate court, and upon the counsel of a reputable attorney who advises that the terms of the will are broad enough to authorize the trustee to make such investment, and a loss occurs by reason of a'failure of the bank, the trustee cannot be held personally liable therefor.
    (No. 10784
    Decided January 26, 1909.)
    Error to the Circuit Court of Stark county.
    The controversy below had its origin in the probate court of Stark and was there heard and disposed of upon an exception by the defendant in error, Milton J. Braucher, as guardian of Stewart I. Allen, a minor, to the fourth settlement account of Grant B. Willis, administrator de bonis non with the will annexed of John C. Allen, deceased. The exception being overruled the guardian took an appeal to the court of common pleas, where upon hearing the exception was sustained and judgment entered in favor of the guardian and against the administrator. From this judgment error was prosecuted by the administrator to the circuit court, and the judgment of the common pleas being by that court affirmed the administrator brings error to this court and prays reversal.
    Facts are stated in the opinion.

      Mr. W. H. Smith and Messrs. Ake & Day, for plaintiff in error.
    We think that the case at bar is very similar to the case of Miller et al. v. Proctor et al., 20 Ohio St., 442.
    Discretionary powers: Scott v. Trustees, 39 Ohio St., 153; Watts v. Watts, 38 Ohio St., 480; In re Allis’ Estate, 123 Wis., 224; Laws of Wisconsin, 1903, p. 317; In re Barker’s Estate, 159 Pa. St., 518; Davis, Appellant, 183 Mass., 499; Dickinson, Appellant, 152 Mass., 184; Harvard College v. Armory, 9 Pick., 446; Brown v. French, 125 Mass., 410; Hunt, Appellant, 141 Mass., 515; Hamilton, Trustee, v. Jacobs, 4 C. C., 250; In re Estate of Reynolds, 3 O. N. P., 292; Luxon v. Wilgus, 7 Bush, 205; McCoy v. Horwitz, 62 Md., 183; In re Raynor, 73 Law J, Ch., 111.

      Story says where a trustee has acted in good faith in the exercise of a fair discretion and in a sound manner, as he would ordinarily do in regard to his own property he ought not to be held responsible for losses accruing in the management, qf trust property. 2 Story Equity, Section 1271.
    Whether a trustee has exercised a sound discretion must be determined as of the time when the investment was made and not in the light of subsequent events. Taft v. Smith, 186 Mass., 31; Mattocks v. Moulton, 84 Me., 545.
    Attention is called to the fact that in Maryland, the statute authorizes investment of trust funds in bank stock or any other good security Section 237, Article 93, Code of Maryland; Smyth v. Burns, 25 Miss., 423; Durrett's Gdn. v. Commonwealth, 90 Ky., 321; 3 Redfield on Wills (3 ed.), 142.

      Messrs. Sterling & Braucher, for defendant in error.
    We contend first that the administrator had no legal authority to invest this trust fund in bank stock.
    A trustee must invest trust funds in accordance with the provisions of the statutes if the instrument creating the trust does not otherwise specify and where the instrument specifies and directs a different manner from the statutes, the trustee is bound to follow either the instrument creating the trust or the statutes or both, and if he invests any of the trust moneys outside of this authority given to him either by statutes or by the will, he becomes personally liable.

      The authorities are practically unanimous upon the doctrine that good faith and advice of counsel, etc., is no protection to a trustee if he exceeds his legal authority. In this case we contend that the administrator exceeded his legal authority in making this investment. Sections 6269 and 6413, Revised Statutes; Curtis v. Bank, 39 Ohio St., 579; Adams, Trustee, v. Nelson, 1 O. D., 216; Lucht, Admr., v. Behrens, 28 Ohio St., 231; Rockel Probate Practice, Section 518; 17 Am. & Eng. Ency. Law (2 ed.), 450.
    Where a trustee is directed by the instrument creating the trust to use his best skill and judgment in making investments, his power and discretion are not enlarged by the use of those words. King v. Talbot, 40 N. Y., 76; Kimball v. Reding, 31 N. H., 352; 17 Am. & Eng. Ency. Law (2 ed.), 466; Perry on Trusts, Section 453.
    Investments in business and stock not allowed by trustee. Perry on Trusts, Section 454; 2 Underhill on Wills, Section 740, p. 1145; 2 Rockel Probate Practice, Section 1385; Adair v. Brimmer, 74 N. Y., 539; 4 Lawson’s Rights & Remedies, Sections 2026, 2029, 2030; Nyce’s Estate, 40 Am. Dec., 498; 2 Pomeroy Eq. Jur., Section 1074; Tucker v. State, ex rel., 72 Ind., 242; White v. Sherman, 168 Ill., 589; Rockel Probate Practice, Sections 491, 512, 515; Miller et al. v. Proctor & Anderson, 20 Ohio St., 442; Scott v. Trustees, 39 Ohio St., 153; Watts v. Watts, 38 Ohio St., 480; Hamilton, Trustee, v. Jacobs, 4 C. C., 250; In re Estate of Reynolds, 3 O. N. P., 292; In re Allis’ Estate, 123 Wis., 224; 17 Am. & Eng. Ency. Law (2 ed.), 456; State, ex rel., v. Greensdale, 106 Ind., 364; Brown v. Dunham, Admr., 11 Gray, 42; Shaw v. Bauman, Admr., 34 Ohio St., 25; Oliver v. Piatt, 2 O. F. D., 335.
   Spear, J.

The matter in the settlement account to which the exception was directed was a credit in the sum of $1,360 of the funds of the estate invested by the administrator in forty shares of the capital stock of the Canton state bank, a corporation organized under the banking laws of Ohio on May 10, 1900, and engaged in a general banking business at the city of Canton, Ohio. The claim of the exceptor is that the investment of the estate’s funds was without authority of law, and that of the administrator that the authority to so invest is given in the will of the deceased.

Twenty shares of this stock were purchased April 8, 1904, and twenty shares October 7, 1904. The bank failed May 24, 1905, and the stock then became and has remained entirely worthless. The par value of the stock was fifty dollars per share of which sixty per cent, had been paid in. The purchase was at thirty-four dollars per share, and stock of the bank was selling at the time of the purchase in the market at Canton at thirty-four and thirty-five dollars per share. Dividends had been and were then being paid on the stock. The purchases were made without consultation with any of the beneficiaries of the estate, or any one acting in their interest, without their knowledge or consent, and without any order of court, although the administrator did mention to the judge of the probate court that he thought of purchasing' some of the stock for the estate and the judge responded that it ought to be a good investment, and he had some of the stock himself. Prior to the purchase- the administrator made inquiries of a number of reputable business men of good judgment on the question of investments, and they advised that the stock was both safe and an excellent investment, and reputable citizens of good judgment at the dates of purchase above stated purchased shares of the stock at the figures stated as late as April 21, 1905. The administrator, also, before the purchase advised with a lawyer of the Canton bar of high standing (one who had means of knowing the character and market value of the bank’s stock and well qualified to give a legal opinion in the matter), with reference to the investment, asking him particularly about the terms of the will as to whether they would cover such an investment, and he advised that the terms were sufficiently broad to cover that investment. The administrator also himself examined the statements of the bank sworn to by the cashier on April 4, 1904, and statement of a date previous thereto, which statements* showed the bank as having a surplus and undisposed of profits amounting to between twenty-five and thirty thousand dollars and the bank in good financial condition. At the time of the purchase the administrator was a stockholder in his own right of sixty shares of the stock, and remains such owner. It seems unnecessary to go farther into the circumstances because the record shows an admission by counsel for the, guardian that in the purchase the administrator acted with good faith and with prudence, diligence and good judgment aside from the claim that he exceeded his legal authority in making that kind of an investment.

Whether or not the administrator did exceed his legal authority depends upon á proper construction of the will in connection with the statute on the subject. The portion of that instrument called in question is as follows:

“I do hereby nominate and appoint my wife, Mary E. Allen, executrix of this, my last will and testament, hereby authorizing and empowering her to compromise, adjust, release and discharge in such manner as she may deem proper, the debts and claims due to and from me. I do devise and bequeath to my said executrix and trustee and to her successors in trust, the title to all the property hereinbefore described. I do also authorize and empower my said executrix and trustee and her successors in trust, whenever in her or their judgment the interests of my estate shall demand, to sell at private sale or otherwise, all or any part of my personal estate in such manner and upon such terms as may be deemed best and deliver for any or all real estate sold, deeds acknowledged by her or them, and reinvest the proceeds arising from any 'such sales in such manner as she or they may think best, to dispose of any property, real or personal, so acquired and reinvest the proceeds in the same manner.”

The particular provision which' is the subject of special dispute is the last clause, viz.: “and reinvest the proceeds arising from any such sales in such manner as she or they may think best, .to dispose of any property real or personal so ac■quired and reinvest the proceeds in the same manner.”

It is contended in support of the judgment of the=acircuit court that the administrator had no legal authority to invest the fund in bank stock because it is the duty of the trustee to invest in accordance with the provisions of the statute where the instrument creating the trust does not otherwise specify or direct, that this will does not otherwise specify or direct, and therefore the administrator was bound to follow the statute which does not permit, but in effect forbids, the investment of trust funds as in the present case in bank stock; that good faith, diligence and advice of counsel give no protection to the trustee, and where he makes an unauthorized investment he becomes personally liable.

The claim of opposite counsel in attacking the judgment below is that the provisions of the will above quoted extend the scope of the statute governing investments by trustees and take the case out of the operation of the statute, and that the provision of the will, not being contrary to any positive rule of law, must prevail; that the intent of the testator as to authority of his trustee to make investments clearly expressed in the will is to clothe the trustee with powers practically unlimited. Having acted, therefore, in admitted good faith and with diligence and discretion, the administrator cannot be held personally liable for the misfortune which attended the investment.

Section 6413 of the Revised Statutes is the section directing how executors, et cetera, may invest trust funds, which section is as follows:

“Executors, administrators, guardians and trustees may, when they have funds belonging to the trust which are to be invested, invest the same in the certificates of-the indebtedness of this state or of the United States, or in such other securities as may be approved by the court having control of the administration of the trust, and whenever money coming into the hands of an executor, administrator, trustee, agent, assignee, attorney, or officer shall be stopped therein by reason of litigation or other lawful cause, and the same will probably be so detained for more than six months, such executor, administrator, trustee, agent, assignee, attorney or officer may invest the same during such detention in the same manner that trust funds are now authorized by law to be invested, or in such other manner as the probate court or other court having jurisdiction of the pending litigation, or person aforesaid, may direct.”

It is perhaps enough to say of this statute that it is permissive. It provides for situations where the instrument constituting the trust does not otherwise provide. Undoubtedly it indicates a general policy; a policy of carefulness in the handling of trust funds; it points out a course free from risk, and affords a certain sure method by which the trustee may secure an affirmation of the legality of his. investment in advance. So that, as a matter of prudence, resort to the methods indicated may be strongly commended. But the statute does mot afford any special aid in determining the question involved in the case at bar unless it be ascertained that the will gives no added authority to the trustee.

The general matter of investments of trust funds by trustees has been a subject of extended com-ment by text writers, and of a great variety of decisions of courts. It may be assumed, based upon the ancient principle of English equity, that a trustee is held to a rigid accountability in the execution of the trust, the rule requiring the trustee to invest on good security and holding him liable for a loss occasioned by an improper investment even though it has been made in the utmost good faith; but if he has acted with due prudence, discretion and diligence, and in accordance with the law and with the established rules of equity, he will not be held liable for loss in case such loss follows. In this country there does not seem to be any settled rule applicable to cases such as we are considering, although in England a stringent rule has obtained in the chancery courts. Putting it briefly it is that a trustee will be protected only where he invests in such securities as the court would decree on application. The grounds of the rule are more specifically stated in Clough v. Bond, 3 My. & Cr., 491, thus: “It will be found to be the result of all the best authorities upon the subject that, although a personal representative, acting strictly within the line of his duty, and exercising reasonable care and diligence, will not be responsible for the failure or depreciation of the fund in which any part of the estate may be invested, or for the insolvency or misconduct of any person who may have possessed it, yet, if that line of duty be not strictly pursued, and any part of the property be invested by such personal representative in funds or upon securities not authorized, or be put within the control of persons who ought not to be entrusted with it, and a loss be thereby eventually sustained, such personal representative will be liable to make it good, however unexpected the result, however little likely to arise from the course adopted, and however free such conduct may have been from improper motive. Thus, if he omit to sell property when it ought to be sold, and it be afterwards lost without any fault of his, he is liable; or if he leave money due upon personal security, which though good at the time afterwards fails.”

This rule has been taken as a guide by the courts of several of the states of the Union. They hold that an investment in bank stock is an investment in personal securities which is condemned. Their decisions fully support the contention of the learned counsel for defendant in error, and if they should be followed in the present case the judgments below would be affirmed and the administrator would be held. A number of the authorities of this character will be found collected in their proper place preceding this opinion. But a more liberal doctrine has been sustained by the courts of a number of the states of the Union, notably Massachusetts, (Harvard College v. Armory, 9 Pick., 446; Lovell, v. Minot, 20 Pick., 116; Brown v. French, 125 Mass., 410); Pennsylvania, (Barker’s Estate, 159 Pa. St., 518); Kentucky, (Luxon v. Wilgus, 7 Bush., 205; Durrett’s Gdn. v. Commonwealth, 90 Ky., 312); Mississippi, (Smyth v. Burns, 25 Miss., 423); and Maryland, (McCoy v. Horwitz, Admr., 62 Md., 183).

With the authorities of this country thus in conflict we are at liberty to apply such rule to the present case as seems to us most consonant with justice and equity, having especially in mind the terms of the will itself and the duty to give effect to the intent of the testator to be gathered from those terms. By the clause quoted the trust reposed is most liberal. It gives to the trustee and to her successors in trust the title to all the testator’s property, with authority “to sell at private sale or otherwise all or any part of my personal estate in such manner and upon such terms as may be deemed best, and deliver for any or all real estate sold deeds,” “and re-invest the proceeds arising from any such sales in such manner as she or they may think best,” and further “to dispose of any property, real or personal, so acquired and re-invest the proceeds- in the same manner.” We cannot conceive that this language imports a purpose to limit the power of the trustee to the ordinary powers incident to such trusts, or to confine his conduct as to investments within the narrow conw pass of the statute. On the contrary it lodges with the trustee the most ample authority not only to sell the property in such manner as his judgment should dictate, but to invest and re-invest the pro-/ ceeds in any manner to such trustee deemed best.1 Can it be possible that the testator intended or expected that the trustee would be governed by any statute inconsistent with the expressed purpose of the will? We think not. Had that been -the intent no provision such as is found would have been necessary. By other clauses of the will it was made his duty to pay the proceeds by way of earnings of the- funds to named beneficiaries, and the whole will imports a duty to keep the funds invested in such manner as that income would be derived therefrom. We do not agree with the /proposition that in order to authorize a trustee to 'invest trust funds otherwise than in accordance with the statute the instrument creating the trust must specify the particular securities to be purchased; it is sufficient if the instrument designates the test to be applied. In the present case the .will does so designate by providing that investments may be made in such manner as the trustee may think best. Undoubtedly it was expected that the trustee would exercise care, good faith and good judgment in making investments, such judgment to be exercised in view of conditions existing at the time, and as certainly the duty to satisfy that expectation devolved upon the administrator. In what respect, pray, did he fail to observe that duty? We fail to see any such failure. Let us recall some of the fácts. He in the first place investigated the condition of the bank for himself, using the usual and perhaps only means of ascertaining its then condition; he consulted business people of good judgment in such matters, persons having the means of knowing what was to be known by the public; he went further, he laid the matter of authority and discretion of the will with respect to investments before his attorney, a lawyer possessing the means of knowing the reputation of the bank and capable of giving a sound legal opinion as to the powers given by the will; lie spoke to the judge of the court under whose direction the estate was being settled, and all commended the investment. His good faith is further abundantly shown by the fact that in his own rig'ht he at the time of these purchases owned stock in the same institution and continued to be such owner from that time on. It is common knowledge that trustees find it difficult to make satisfactory investments of trust funds, as the amount seeking investment is all the time large and the opportunities for profitable and at the same time safe investments is limited. And if a trustee under the circumstances which surrounded this administrator at the time he made these investments, acting as he supposed and was advised under the distinct terms of the will is to be held personally liable for the loss not only would it result as it seems to us in a gross injustice in this instance but it would prove a discouragement to conscientious men, deterring them from accepting trusts of this nature. Where as in this case the party creating the trust has given to-the trustee enlarged and adequate powers and he exercises them in good faith and with prudence and with what is appparent good judgment at the time and a loss results, equity requires that that loss be borne by the-estate and the beneficiaries thereof and not personally by the trustee. Our conclusion is that the provisions of the will extended the scope of the powers as to investments and thus took the case out of the operation of the statute, and that no personal liability attached t® the administrator. /

We know of no reported case by any of the courts of this state _ which exactly determines the case at bar, but the conclusions hereinbefore indicated are consonant with and to a greater or less degree supported by Miller v. Proctor, 20 Ohio St., 442; Watts v. Watts, 38 Ohio St., 480; Scott v. Trustees, 39 Ohio St., 153; Hamilton, Trustee, v. Jacobs, 4 O. C. C., 250.

Attention is called by counsel to what it is claimed appears by the record that in making one of these investments the administrator must -have used some eighty-one dollars of his own money and over two hundred dollars, of the life estate fund, while he was authorized to invest only the permanent fund. This was an :^'regularity, but it ought not to be visited with a severe penalty, especially as no reason is shown why it may not be ordered adjusted and the accounts properly settled without detriment to the beneficiaries in the probate court. It also appears that a portion of the stock purchased was first issued in the individual name of the administrator. This was through inadvertence and ■a temporary misunderstanding of the force of the provision of the will conveying title to all the estate to the trustee. As soon as the mistake was discovered it was corrected and the certificates of stock to the administrator as such duly issued. We do not regard the objection as serious.

The conclusion stated requires a reversal of the judgments of the circuit and common pleas courts and a final judgment by this court overruling the exception and for costs in favor of the ‘ plaintiff in error.

Judgment reversed.

Crew, C. J. Summers, Davis, Shauck, and Price, JJ., concur.