author: Granger, C. J.

text:
    Hogg v. Beerman.
    1. Land covered by the water of a navigable land locked bay, or harbor, connected with Lake Brie, may be held by private ownership, subject to the public rights of navigation and of fishery, provided the holder derives his title from an express grant made, or sanctioned, by the United States.
    2. Where a petition in a civil action prays for equitable partition of real estate and an account of rents and profits, an answer denying plaintiff’s entire title does not oust the court of jurisdiction. Perry v. Bichardson, 27 Ohio St., 110, approved and followed.
    3. When a grantee enters under a deed describing his estate as a tenancy in common with others, his possession will be presumed to be not adverse to the owners of the other undivided interests, until, by unmistakable acts or declarations, of which his co-tenants had, or ought to have taken, notice he claims the entire ownership.
    4. Where the record properly presents the entire evidence in the case, and, giving full faith and credit to all of the evidence for the defense, the plaintiff is entitled to a decree, the court may grant it, notwithstanding a referee before whom the case was heard reported that the petition should be dismissed.
    Appeal. Reserved in the District Court of Ottawa County.
    In the township of Danbury, Ottawa County, Ohio, is a triangular body of water named “East Harbor.7’ It is separated from Lake Erie partly by a narrow strip of land, described in a survey made in 1808, thus: “The dike, or gravel bar, between the lake and marsh is from six to twelve rods wide, and about eight feet high,” and partly by an island similar to the “dike” in composition, width and height. The island is a little more than two miles long; the “ dike ” about one mile.
    The dike runs nearly west from the main land; the island runs northwesterly. Between dike and island is an inlet from the lake, about six rods wide and about eighteen feet deep. The western end of the island curves to the west and south, and there a narrow water passage connects “East Harbor” with another like body called West Harbor. At the extremity of the island, another “inlet” connects West Harbor with the lake. In this case “ East Harbor ” is thus described:
    The body of water is about two miles long east and west, and at the widest point is two miles north and south. It is an irregular triangular shape. The water varies in depth and rises and falls with the water in the lake.
    There is a channel or current extending westerly from the mouth of East Channel, through about the central part of the harbor and northerly to West Harbor. The water is from five to ten feet deep in this channel, and increases in depth as it nears the mouth, and decreases in depth towards the shores on either side. The average depth of water in East Harbor is about six feet. Unaffected by the wind the current in the channel would be out and towards the lake all the time.
    Boats drawing from four to six feet of water have entered East Harbor frequently through East Channel outlet, and occasionally through West Channel, and loaded wood, timber and sand.
    The shore around the greater part of East Harbor is well defined, and is not subject to overflow by the rising of the water in the lake or harbor, except at the west end where the harbor ends in a marsh, and a rise in water of a foot would cover several acres.
    . Wild rice and rushes grow up over most of the harbor, excepting in the channels. Wild rice will grow in water six feet deep. The bottom is muddy.
    The water has been used for fishing purposes in spring and fall, and even in winter through the ice, and for hunting and trapping, and has been generally considered by most people in that neighborhood, to be public and common to all; nor has any person been interfered with in fishing or hunting, or prohibited therefrom by any claimants.
    Danbury township lies within “the Western Reserve.” On September 13, A. d. 1786, Connecticut, by deed, ceded to the United States all its claim to both territory and jurisdiction west of a line drawn from a point in north latitude 41°, one hundred and twenty miles west of the west line of Pennsylvania, due north to the national boundary in Lake Erie. On the next day the old Congress accepted this deed, impliedly recognizing Connecticut’s title east of the-line so drawn.
    In A. D. 1792, Connecticut granted to the people who had suffered loss by the incursions of the British troops during the Revolutionary war, a half million acres of land, bounded on the north by the shore of Lake Erie, on the west by the west line of the Reserve thus drawn; on the south by the forty-first degree of north latitude, and extending far enough east to make up the half million acres. The state also directed a survey to be made at the expense of the grantees, to contain within its limits 500,000 acres, and for this purpose, a traverse was run along the shore of the lake. The grantees were then incorporated under the name of “ The Proprietors of the Half Million Acres of Land lying south of Lake Erie.” The land was laid out into townships and sections, and the Township of Danbury was described as follows: Bounded on the north and east by the shore of Lake Erie, southerly and easterly by the shore of Sandusky Bay, and on the west by the United States land. Section Two, which contains East Harbor, was described as bounded on the north by the shore of Lake Erie, on the east by Section One, on the south by Sandusky Bay, and on the west by the Third and Fourth Sections.

      In order to ascertain the proportions in which these lands should be held by the grantees, the loss of each individual was found in pounds, shillings and pence, and as considerable: time elapsed before partition was made, many of the sufferers assigned their claims, but instead of conveying any definite quantity of land, they simply conveyed values in pounds, shillings and pence. In this way many of the assignees acquired claims enough to locate an entire section, and the Classification Record shows that Section Two of Danbury Township was allotted to two men as the assignees of the original grantees. These men were. Henry Franklin and William Chappell. ...
    Franklin’s share of the losses was, ¿£809 7s. lid.
    Chappell’s “ “ “ . 534 19 1 .
    Total loss classified in Section Two, ¿£1344 7 0 This Section Two included all of the “Dike” except a small part of its east end; all of the island except about three acres at its northwest end; the greater part of East ■Harbor; about 25 acres of the eastern side of the small peninsula that lies west of the harbor, and all of the main peninsula between sections one and four. ■
    By the act of April- 28, A. D. 1800, Congress authorized the President “to execute and deliver letters patent in the name and on thé behalf of the United States, to the governor of the state of Connecticut, for the time being, for the use and benefit of the persons holding and claiming under the state of Connecticut, their heirs and assigns, forever, whereby all .the right, title, interest and estate of. the United States, to the soil of that tract of land ” * * * “including all that territory commonly called the Western Reserve of Connecticut and which was excepted by said state of Connecticut out of the cession by the said state heretofore made to the United States and accepted by a resolution of. Congress of .the fourteenth of September one thousand seven hundred and eighty-six.” The word soil was used for the purpose of showing that jurisdiction was not to be Conveyed. Connecticut was required to cede “jurisdiction”. to the United States. The state complied, and empowered its governor to accept the patent. Thus, while jurisdiction passed to the United States, ownership of soil — land and water — by express conveyance, sanctioned by the sovereign power, vested in the state, (represented by its governor) in trust for its grantees. The lines of the grant were defined with precision; the northwest corner being far out in Lake Erie, in latitude 42° 6'.
    With equal precision “ section two ” was aparted to Chappell and Franklin. It lay between the west line of section one and the east line of sections three and four, and between Sandusky Bay and “ the shore of Lake Erie,” and contained about 4120 acres. Its east and west lines were parallel running from Sandusky Bay to the main body of Lake- Erie. Actual surveys show that in the part of the section not covered by water, there are about 70 acres on the island; and about 3050 on the main land. Unless then the water of East Harbor, and the ground under it, be included, there is a deficiency of at least one thousand acres in the section. The actual area of the harbor is about 1145 acres.
    On the 19th day of January, 1811, Franklin conveyed all his interest in the section to three grantees: To James Stevens one-half, and to Isaac Ambler and James Skelding one-fourth each.
    On the 28th day of February, 1811, Chappell conveyed all his interest in the section to five grantees, to wit: Seymour Jarvis, Frederick Scofield, William King, Azariah Scofield and Josiah Lockwood, Jr.
    The section was then owned by these eight in common, and, while so owned, the tillable land was laid off in lots numbered from one to twenty. These lots do not extend to the Lake but are bounded on the north- by courses,, distances and monuments as shown by map and table.
    Afterwards they aparted the lots among themselves, leaving that portion of the section between the lots and the lake shore in common.
    Seymour Jarvis, one of the five grantees of Chappell, sold all his interest in the marsh to the other four grantees; and then Azariah Scofield, one of the five grantees of Chappell and one of the four grantees of Jarvis, conveyed all his interest in the marsh to James Skelding, one of the three grantees of Henrj'- Franklin, thus making Skelding the owner of one fourth of Franklin’s share of the marsh, and one fourth of Chappell’s share of the same.
    On the 6th day of October A. d. 1877, the heirs of James Skelding conveyed to Thomas Hogg the undivided one fourth — (the samé being all the interest owned by said James) of the part of section two (2) bounded on the north by “ the shore of Lake Erie, on the east by section one, on the south by lots 18, 14, 15,16, 17,18, 19 and 20, and on the west by section three.” The north line of said lots was about, the southern edge of the marsh.
    On October 30th, A. D., 1813, James Stevens conveyed to Benoni St. John, lots 8, 9 and 20, containing “about 400 acres,” and “ the remainder ” to make up six hundred acres was described as “ being holden in common by us, Isaac Ambler and others, also lying in said section.” Stevens’ share of the ground outside of lots 8, 9 and 20 was over 200 acres.
    On the 31st of March, 1836, the heirs of St. John, by the same description conveyed to E. Cooke and others, who secured the unpaid purchase money by a mortgage. This mortgage was foreclosed, (mortgagors and mortgagees being the only parties to the action,) and, about 1840, James B. St. John bought the mortgaged premises at sheriff’s sale, taking a deed with the same description. On January 23d, 1846, James B. St. John, by deed with same description, conveyed to Jacob Ramsdell. From 1849 down, so much of the island as lay in section two stood upon the tax duplicates of the township as about “72” acres, at first in name of Jacob Ramsdell and afterwards in the names of his heirs or grantees. On July 18th, 1846, Ramsdell quitclaimed to Edward J. Lockwood, so much of a certain interest conveyed by deed of James B. St. John and his wife to Jacob Ramsdell, bearing date January 13th, 1846, and recorded June 11th, 1846, in book B., pages 30 and 31, by S. H. Brown, recorder of Ottawa county, as lies east of lot No. 18 in the 3d section of Danbury and adjoining the same, containing about twenty-five acres, more or less, as survejmd by George W. Reilly, county surveyor of Ottawa county, on the lOfch of December, 1845, as by reference being had to said deed and survey, may more fully appear.
    Ramsdell exercised ownership as stated in the following quotation from the testimony of George Ramsdell: “ I am son of Jacob Ramsdell. Father claimed the island just as much as he did the farm he lived on. He said it was his. He claimed the whole of it. People used to go there to steal cedar, and father got Shanks to go on there to guard it and keep off trespassers. Father let Mr. Thompson go on and cut some hay there, some 33 to 37 years ago.- We always pastured it. Kept hogs and cattle there, and rented pasture there to others. The island or bar is adapted to pasture and to use for fishing. We used to cut wood there. Carsten Ahrens bought sand of us there to build his brick house. Mr. Jewett got permission of us to set out some grape cuttings there.”
    The heirs of Jacob Ramsdell made divers quitclaims. On the 10th of December, 1877, Thomas Hogg began a civil action, in Ottawa common pleas, against the heirs and grantees of Jacob Ramsdell, and the unknown heirs, grantees and devisees of Stevens, Ambler and others. His petition averred that plaintiff owned in fee simple one undivided fourth part of “All that part of said section two, (2) bounded on the north by the shore of Lake Erie, on the east by section one, (1) on the south by lots thirteen (13) to twenty, (20) inclusive, and on the west by the west line of said section two, (2) containing about fourteen hundred acres;” that Jacob Ramsdell in his life time claimed to own 78 acres; that in 1846 he had conveyed the 25 acres to Lockwood who had held adverse possession for more than twenty-one years; that Ramsdell’s heirs and their grantees claim the remaining 53 acres (of the 78); that the other defendants are entitled to shares in said premises. The prayer was to have plaintiff’s one'full and equal one fourth- part set off to him in severalty; that in so doing due regard may be had to the 25 acres of Lockwood, and for such other and further relief as may be right and proper. The heirs of Ramsdell and their grantees answered claiming title in themselves to the entire premises, denying plaintiff’s title, and setting up the 21 years’ statute of limitations.
    A reply traversed. all new matter in the answer. An amendment to the petition asked for an account of rents and profits by those defendants who had been in possession. To this said defendants answered thus: They deny the allegations of said amendment — except they admit that they have claimed and controlled so much of said premises as is capable of private ownership and occupation. And they aver that a good part of said premises as described in the petition consists of open and navigable waters, and is part of Lake Erie, being a mere arm .or bay thereof. And they pray that said petition and amendment be dismissed.
    Other defendants answered admitting the facts stated in the petition and asking that their shares might be aparted to them.
    The common pleas “dismissed the petition and amendment ” and rendered judgment for costs against the plaintiff. He appealed. The district court referred the case to E. B.. King, Esq., as referee. The case was heard before him and he found the facts to be as hereinbefore stated, and as matter of law reported thus:
    That the original survey of said Sufferers’ Land, and the - subsequent partition thereof, and the deeds from Chappell and Franklin and Schofield, and from Skelding’s heirs to' plaintiff, included, by the intention of all parties thereto, that portion of East Harbor and bar adjacent, which is now in controversy.
    I find that if East Harbor is capable of private ownership, the plaintiff is seized in fee, and entitled to an undivided one fourth (|-) part thereof.
    That since 1847 said bar or island, excepting that portion' in section three (3), has been in the possession of Jacob Ramsdell till his death, and since his death, of the defendants Pettibone and Beerman.
    That their possession has been- open, actual, notorious, distinct, hostile and adverse.
    And that the non-residence in Ohio of plaintiff’s grantors as herein before found, does not take the case out of the statute.
    I further find that East Harbor is a bay, arm or inlet of Lake Erie ; that it is not an inland river but a part of Lake Erie, and as such, the owners of land abutting thereon, are bounded bj1- the line at which the water usually stands when free from disturbing causes, and possess such riparian rights as are incident to such ownership, but have no title to or in the water of said harbor or land underneath.
    That the court has jurisdiction in this case upon the pleadings to hear and determine the interests and titles of each of the claimants to this harbor and bar, or any part thereof, and the jurisdiction of the court is not ousted by the fact that the defendants in their answer deny that plaintiff has any title to the premises claimed by him.
    I therefore find that plaintiff is not entitled to the partition of said premises, as prayed for in his petition, and that he ought to take nothing by this action, but the same should be dismissed at plaintiff’s costs.
    The plaintiff moved before the referee for a new trial, and took a proper bill- of exceptions showing all the evidence. He also filed, in court, exceptions to the report. The defendants, heirs of Ramsdell and their grantees, made no motion for a new trial; took no bill of exceptions; but filed in court exceptions to certain rulings and findings of the referee.
    Both sides moved the court to set aside the report, and the court “being of opinion that difficult and important questions arise in the case to be determined,” reserved the cause for decision by the supreme court.

      E. B. Sadler and T. L. Magers for plaintiff in error.

      1. The land described in the petition is capable of private ownership. Sloan v. Biemeller, 34 Ohio St., 492; Gavitt v. Chambers, 3 Ohio, 496; Lamb v. Ricketts, 11 Id., 311; Walker v. Board Public Works, 16 Id., 544; June v. Purcell, 36 Ohio St., 396; State v. Shannon, Id., 423.
    A grant of land by government is tantamount to a conveyance. 3 Wash. Real Prop. (3d ed.), 173; Angelí on Water Courses, §§ 5, 6, 43.
    The referee found that the channel was in reality a water course. This brings it within Gavitt v. Chambers, 3 Ohio, 496; Lamb v. Ricketts, 11 Id., 311; Walker v. Board of Public Works, 16 Id., 544; June v. Purcell, 36 Ohio St., 396; State v. Shannon, Id., 423.
    The tract in controversy was included in the half million acres grant by the State of Connecticut. A traverse (see 13 Ohio, 431), was made of the lake shore, and was run for the purpose of fixing this eastern boundary of the grant, and it shows on its face that this tract is included in said grant.
    2. The answering defendants are not in adverse possession. 3 Washburn on Real Property (3d ed.), 123, 126, 566; Humphries v. Huffman, 33 Ohio St., 395; McNeely v. Langan, 22 Id., 37; Yetzer v. Thoman, 17 Id., 130; Lessee of Paine v. Skinner, 8 Ohio, 166; Youngs v. Heffner, 36 Ohio St., 282.
    3. The jurisdiction of the court is not ousted by the plea of adverse possession in the defendants. Perry v. Richardson, 27 Ohio St., 110.

      John M. Lemmon for defendant in error.
    1. The defense of adverse possession ousts the jurisdiction of the court in a suit for partition. Freeman on Cotenancy and Partition, § 502; Tatler v. Wiseman, 2 Ohio St., 207; Penrod v. Danner, 19 Ohio, 218.
    The question in this case is a question of title. The defendants have a right to have this question tried by a jury. Rev. Stats., § 5130; Ellithorpe v. Bush, 17 Ohio, 72.

      2. As to adverse possession:
    The acts of Eamsdell were sufficient to set the statute of limitations running against the world. Clark v. Vaughan, 3 Conn., 191; Freeman on Cotenancy, §§ 221, 229, 238; Prescott v. Nevin, 4 Mason, 330; Ewing v. Burnett, 11 Peters, 52-3; Clancey v. Handlette, 39 Me., 451; Turner v. Hall, 6 Mo., 271; Angell Limitations, §§ 390, 394, 397, 400; Yetzer v. Thoman, 17 Ohio St., 130; Clark v. Potter, 32 Id., 49; Young v. Heffner, 36 Id., 332; Bolton v. Hamilton, 2 W. & S., 299; 3 Metcalf, 101; 9 Cowen, 24. As to visible boundaries, see Angell, §§ 392, 398, 399; 11 Pet., 53 ; 10 Id., 442; 6 Id., 513. As to disseizin by cotenant, see 36 Ohio St., 332; Freeman’s Cotenancy, § 221; Frederick v. Gray, 10 S. & R., 188.
    3. As to boundary: The plaintiff’s title, if he has any, only extends to high water-mark.
    The uniform doctrine in the United States is that lands bordering upon a bay or lake or upon an arm or constituent part of a lake, extends to the high water-mark or to the water’s edge. Sloane v. Biemiller, 34 Ohio St., 492 ; Dela-plaine v. R. R., 42 Wis., 219; Diedrick v. Ry. Co., Id., 248; Leaman v. Smith, 24 Ill., 521; Fletcher v. Phelps, 28 Vt., 257; Tyler on Boundaries, 64, 66, &c.; The C. & St. L. R. R. Co. v. Valentine, 19 Barb., 489-491; Canal Com's. v. People, 5 Wend., 423-447; Hathorn v. Stinson, 1 Fairf. (Me.), 238; State v. Gilmanton, 9 N. H., 461; West Roxbury v. Stoddard, 7 Allen, 167; Wood v. Kellog, 30 Me., 47; U. S. v. Pachee, 2 Wall., 587; 16 Cow., 545, note citing Hale’s de jure Maris; Waterman v. Johnson, 13 Pick., 261; 43 N. H., 578; Austin v. R. R. Co., 45 Vt., 215; Wheeler v. Spinola, 54 N. Y., 377-384, is a good case; Angell Wat., 340, and cases cited.
    And this rule as to lakes applies to arms of the lake— to this harbor. Fletcher v. Phelps, 28 Vt., 257; Dillingham v. Smith, 30 Me., 370; Tyler Boundaries, 69; Robinson v. White, 42 Maine, 209; 3 Kent, 427, note b.; Id., 429, note b.; see Rice v. Ruddeman, 10 Mich., 125; Hooker v.
      Cummings, 20 John., 90; Marshall v. U. S. Nav. Co., 3 B. & S., 732 (213 E. C. L.) ; Mariver v. Shultz, 13 Wis., 692; Cortilyon v. Brundt, 2 John., 357; Fishing, etc., 1 Kent, 489; Houck on Rivers, 247; Rogers v. Jones, 1 Wend., 237; Martin v. Woodell, 16 Pet., 369.
    But it is claimed a traverse was run by somebody, by whose or by what authority does not appear, making the shore of Lake Erie out into the lake as far as north side of this sand bar or island.
    This purports to be a “traverse of the lake west of the outlet of Sandusky Bay. It is not a meander, nor does it mention such a thing as the shore of Lake Erie.
    Counsel for plaintiff attempt to prove this body of -water is subject to private ownership by showing that the “ traverse ” of the shore of Lake Erie includes it.
    The answer is, first, a surveyor cannot make land of water, nor by including an arm or bay of the lake as land; second, this same traverse includes Sandusky Bay as land.
    Let us recur to the plain law of common sense.
    What does shore mean? Simply where the land and water meet. The shore of Lake Erie must necessarily be continuous. But we are asked to admit that here a shore means an arbitrary line crossing two wide deep channels, leaving the main land and its well-defined bank — in short that it does not mean what everybody understands shore to signify. ■
    If the meandered line of a-lake or pond and the actual water line differ, the latter is the true line of a lot bounded in terms by the meandered line. Boorman v. Sunnucks, 45 Wis., 234, 243; R. R. Co. v. Schurmier, 7 Wall., 272, 286; Wright v. Day, 33 Wis., 260; Jones v. Pettibone, 2 Id., 308.
    The shore, we are told, is that portion of the land adjacent to the sea (or lake) that is between ordinary high water and low water-mark. Hale de jure Maris, 12; Hall on Sea Shore, 8; Tyler on Boundaries, 33 to 35 ; 6 Mass.* 435, 439; 3 Plow., 212. ' .

      H. & L. H. Goodwin, in reply,
    on the question of boundary cited, in addition to the authorities cited by co-counsel, Rice v. Ruddiman, 10 Mich., 126; Lorman v. Benson, 8 Mich., 32, and urged that it makes very little difference, for present purposes, whether it was accurate or not. It was to “ run eastwardly along the shore of the lake, taking all the indents of the same,” and it was to be a boundary of the lirelands, and it was. The half-million acres was included in a space, bounded by that traverse or the traverse made by Ruggles as one of its lines. And it “ was agreed between the two companies that the waters of San-dusky Bay should not be included.”
    Counsel for defendant claims that this same traverse includes Sandusky Bay as land.
    This is a mistake. Before any survey was made they settled that “ the waters of Sandusky Bay should not be included as land.” See 13 Ohio, 431.
    Judge Burchard says that this survey (of Ruggles), was “approved and acted upon by the directors.”
    It is enough for us to know that a map was made, “upon which is stated the area of each township and fraction,” and making a traverse on the north line of the section. See 13 Ohio, 443 and 444.
    It was returned as part of Ruggles’s Survey, and that survey was made “ to settle what should be deemed land and what the waters of Sandusky Bay.” This map showed where the shore of the lake was and that there was “ marsh ” between that and the north line of the lots.
    We at this day must conclude that the traverse settles the boundaries of the southern shore of Lake Erie.
    It seems to us that it is entirely unimportant who run this traverse, whether it was run- by Ruggles or anybody else. It was certainly the northern boundary of the section, and must have been supposed, at the time, to be the south and west shore of the lake. And we can see no reason, why the owners of the lots, (if the original proprietors, Franklin & Chappell had made no other transfer of it,) would not be entitled to it by running their lines to the lake shore, in accordance with the rules laid down in Clark v. Campau, 19 Mich., 325.
    We admit the exclusive right of access to and from the lake in front of his land belongs to the riparian owner. But the question remains, where is the bank of the lake in reference to this land ? See Delaplaine v. The C. & N. & W. Ry. Co., 42 Wis., 225; Barney v. Keokuk, 4 Otto, 324.
    The state of Ohio has never claimed any right to this land, but has left it to the riparian proprietors to control it as they see fit.
   Granger, C. J.

Did the denial of plaintiff’s title oust the jurisdiction of the court? The claim that it did is based upon the theory that the issue so made is only triable by a jury. But equity courts have long exercised the power to decide finally upon the right of adverse claimants to real estate, where- the nature of the controversy properly called for the interference of a chancellor. A bill to establish and enforce a trust gave him jurisdiction to hear and determine its existence and extent, and to enforce it, in a proper case, by compelling a conveyance- by the defendant as trustee, notwithstanding his answer denied the entire title of the plaintiff. In this class of cases, as well as in a number of others, the fact that the decision of a judge, without a jury, might divest one in possession of the whole estate, does not affect the jurisdiction. The principle controlling is well known: where a party cannot have adequate and complete relief at law, he may apply in equity; and the chancellor, taking jurisdiction, retains it so far as may be necessary to furnish relief adequate and complete. A careful consideration of the position and relations of tenants in common of realty will satisfy the mind, that when a cotenant has gone into possession and refuses to recognize the title of the owners of the other undivided shares, an ordinary suit at law will not furnish to them adequate and complete relief. In the Ohio statutory proceeding for partition the court could not exercise chancery or equity powers, and was limited to the mode and extent provided by the statute. There would seem to be good reason for holding that those statutory powers could only be exercised on behalf of parties whose title at law was not disputed. But a civil action seeking equitable partition, together with an account of rents and profits, properly invokes the ordinary chancery powers of the court, and therefore upon the principle hereinbefore named, an answer denying plaintiffs title could not oust the jurisdiction. So it was well held in Perry v. Richardson, 27 Ohio St., 110. And the referee was right in so holding in this case.

Is East Harbor capable of private ownership ? An absolute sovereign, holding both ownership and jurisdiction of land and water, may vest in a private grantee such portions of either, as the grantor may determine. A sovereign whose powers are limited by constitutional provisions may do the like, so far as the grant does not contravene any constitutional provision or limitation. So long as navigable waters are left free to the public, for unembarrassed passages to and fro, we know of no reason why'the United States, or any state, holding ownership and jurisdiction of land and water, may not vest in a private grantee such a body of land, marsh and water as “ East Harbor.” History is full of instances of the exercise of such power by governments, and instances in which the courts have protected such a grantee against intrusion are not rare.

The ocean, with its gulfs and bays, belongs to no nation. Jurisdiction is allowed to such a distance from shore as the protection of that shore requires. This distance was fixed as a marine league at a time when no gun could force a ball farther. But over inland waters the nations in which they lie may hold, both as sovereigns and as proprietors. A proprietor may convey all his rights to a grantee unless forbidden by some law to which he is subject. No one not possessed of some right in the thing granted should be heard in objection. Where the grantor is the government, the thing granted government property held by absolute title, and no use of the thing granted to which the public is entitled is taken away, we see no reason for denying to the grantee ownership of the thing granted. In Lorman v. Benson, 8 Mich., 32, Judge Campbell, speaking of Detroit river, says: “ Applying the principles of the common law to the tideless stream in question, we do not conceive what public interests would be subserved by placing it on the footing of tidewaters, when the rules applying to public fresh water streams provide amply for every common easement. The right of navigation, to which all others are subservient, is in no way injured or abridged by this holding, and the necessities of wharves, and other conveniences, which could not be made available at all in such a stream as this, unless owned by the riparian proprietor (because not accessible except over his grounds), would be an inducement to modify the common law, were it otherwise, rather than change it as it is now. * * * And we have no difficulty in holding that the plaintiff is entitled to every beneficial use of the property in question which can be exercised with a due regard to the common easement. The cutting of ice is the exercise of a valuable privilege, in securing that which has become stationary on the freehold, and we conceive of no reason which would'justify a denial of it.”

In Rice v. Ruddiman, 10 Mich, 139, speaking of lake Muskegon, the court, after stating that the real question is not whether the outward limits of private ownership in the lake can be defined with precision, say, “But if the water continues so shallow as to render the lands under it susceptible of beneficial private use to the centre line of this narrow lake, then I have no hesitation, in saying that I think the riparian ownership extends to such centre line. * * * If the water becomes so deep * * * as to render the lands under it incapable of such individual use, the question of ownership beyond where it is available for such purpose becomes as barren as the use itself, and is of no practical importance whatever.

In Delaplain v. Railway Co., 42 Wis., 225, the court say: “ The question as to the ownership of the soil under the water, is one which each state is. at liberty to determine for itself, in accordance with its views of local law and public policy; and if it chooses to concede the right of the riparian owner to the centre of the stream, it is not for others to raise objections.”

In Barney v. Keokuk, 4 Otto, 338, the court say: “ If they (the states) choose to resign to the riparian proprietor, rights which properly belong to them in their sovereign capacity, it is not for others to raise objections.”

In Gavitt v. Chambers, 3 Ohio, 497, the court said: “It is, we conceive, vitally essential to the public peace, and to individual security, that there should be distinct and acknowledged legal owners for both the land and water of the country. This seems to have been the principle upon which the common law doctrine was originally settled; that where a stream was not subject to the ebb and flow of the tide, it should be deemed the property of the owners of the soil bounding upon its banks. The reason upon which this rule is founded, applies as strongly in this country as in any other. And no maxim of jurisprudence is of more universal application, than that where the reason is the same the law should be the same.”

In the cases referred to, the courts were dealing with implied grants, resulting from bounding the premises granted by a stream, or other water. What they say applies with additional force when the state owning both the water and the land, by express terms includes within its grant the territory covered by the water.

We think it was competent for Connecticut, with the-sanction of the United States, to vest in its private grantee-the ownership of East Harbor, subject to the public rights-of navigation and fishing. Did the state include East Harbor in its grant ?

As already stated it granted 500,000 acres to be bounded on the west by the west line of the “Reserve,” south by latitude 41°, north by “ the shore of Lake Erie,” and to extendi eastward for the quantity. What was “ the shore of Lake-Erie ” referred to in this grant? The same words described the north line of “ section two.” Was the northern edge of' island and dike “ the shore of Lake Erie ? ”

In one sense all of its bays and harbors are parts of the lake. In another sense the name “Lake Erie” embraces only the main water, excluding land-locked bays and harbors. In which sense were the words used as between the state and its grantees ?

The map shows that the island is a continuance of “ the Dike,” following the trend of the lake shore; that it is made an island because the action of the water has opened, or kept open, two narrow passages called “inlets.” A “ traverse ” of the lake shore was made prior to 1808, and its line followed the outer, or lake, side of both dike and island; the field notes styling East Harbor “ the marsh; ” and describing the eastern inlet as “ a good harbor for small boats and is about six rods wide, and deep.”

It does not appear that the state has ever asserted any ownership of the harbor since the grant of 1792. In the first partition its entire surface was certainly computed as part of section two, and aparted to Franklin and Chappell. Their deeds, as well as those of their grantees, assert title to “ the marsh.” Under these facts can there be doubt that the state used the words “ shore of Lake Erie ” in the popular sense ? Her grant was 500,000 acres. In measuring off that quantity, section two was computed as 4120 acres. ■ To now hold that the harbor was not granted is to deprive the grantees of the state of at least 1000 acres. To do so because the public has fished and hunted, ad libitem, on this marsh, or water, seems to us without warrant. As was held in Sloan v. Biemiller, 34 Ohio St., 514, the right of fishing in Lake Erie and its bays is as open to the public as if they were subject to the ebb and flow of the tide. No mere grant of the land covered by such waters destroys this public right. The private grantee of the land cannot do anything that will interfere with the channel, or hamper the passage of water craft through it. But he may, without the limits of the channel, erect fishing houses or such other structures as his means and the depth of water will permit; he may convert shallow portions into cranberry patches; he may fill up other parts and make solid ground. Although such action by him may lessen the water surface available for the fishing boats, the fishermen cannot complain. Such public right to fish always yields to any permanent improvement by the owner of the land on which the water rests.

How much of East Harbor can be advantageously used by its private owners the record does not tell. It is evident that parts of it may be so used. The private ownership subject to these public rights may be of small value. But it is of some value, and those who own it are entitled to have their respective shares set apart.

Jacob Ramsdell entered into possession of the island and of the 25 acres adjoining lot 18, of section three, in 1846, and he and his grantees have since held possession. But he entered under a deed which recited that so much of the premises granted as lay outside of lots 8, 9 and 20, was “ holden in common ” by his grantor with “ Isaac Ambler and others.”

He had full right to so enter. Having so entered, his possession continued referable to that deed; continued to be that of one tenant in common, until by unmistakable acts of which his co-tenants had notice, or of which it was their duty to take notice, he disclaimed to hold as a tenant in common, and asserted ownership of the entire estate. Until 1877, he and those claiming under him were the only owners resident near the premises. He collected some rents; granted some permits; drove off some trespassers; and paid the taxes. All these were acts that as tenant in common in possession he had a right to do; all of them were perfectly consistent with his being only a tenant in common. Until they were informed that he claimed to be sole owner, his co-tenants might well regard his receipt of rents as merely compensation for looking after the property; or as a matter to be settled and adjusted between them. There is no evidence tending to show that, prior to 1877, any co-tenant had any information that their title was disputed by any adverse claim. Ramsdell’s quitclaim of the 25 acres to Lockwood has resulted in enabling Lockwood by lapse of time to hold that tract as against plaintiff, but a court of equity will treat that as so much of Ramsdell’s share already set off to him, and diminish the quantity now to be set apart for his heirs and their grantees.

We see no reason to disturb the findings of fact made by the referee as stated separately from his “findings,” or conclusions of law. Giving to the evidence full faith and credit so far as it is favorable to the defense, we think it establishes the title of the plaintiff, and his right to an equitable partition and account. We sustain the exceptions to so much of the findings and conclusions of law set out in the report of the referee as conflict with our holding. The court, under section 5213 Revised Statutes, has the same powers in reviewing its decision as it has over the judgment of a trial court. Proceeding to render the judgment required by the record, we grant to the plaintiff a decree for such partition and account, and remand the cause to the common pleas for execution.

Judgment accordingly.


source: Caselaw Access Project

author: Dickman, J.

license: Public Domain

text:
    Peckham Iron Co. vs. Harper.
    1. In an action by an incorporated company, the duly verified answer to the first cause of action in the petition, containing, among other things, an admission of the company’s corporate existence, was, on motion of the plaintiff, stricken out by order of the court, as redundant and irrelevant, and the defendants excepted. The entry granting the plaintiff’s motion to strike out was afterwards set aside. A verified amended answer to the same cause of action, was then filed, and a portion thereof embracing, among other things, the same admission of the incorporation of the company, was, on motion, stricken out by order of the court, as redundant and irrelevant, and both parties excepted — leaving in the remainder of the amended answer, a denial “of every allegation in said first cause of action not herein admitted.” This denial was included in the motion to strike out. Held : That it was not error to permit the plaintiff 'to read in evidence to the jury, that portion of the original answer, which contained an admission of the company’s corporate existence.
    2. Exemplary damages may be allowed, where an agent by false and fraudulent representations to his principal, obtains possession of his princi- " pal’s goods and converts them to his o«n use.

      3. The jury in such a case, in estimating the damages, may include the plaintiff's reasonable counsel fees as an item of compensation.
    4. Fraudulent representations by one partner, in the course of the partnership business and transactions, will hind the firm and create a liability coextensive therewith.
    Ekbok, to the District Court of Hamilton County.

      King, Thompson & Maxwell, for plaintiff in error.
    I. If the plaintiff’s corporate capacity was not put in issue by the answer, the admission of incompetent evidence to prove it, not being prejudicial, was of course not ground of error in the district court.
    It must be remembered that the question of plaintiff’s corporate existence relates only to its legal capacity to sue, and that any objection upon that score is waived, unless taken by demurrer or answer. Rev. Stat. Ohio, § 5064; Haskins v. Alcott, 13 Ohio St., 21-217.
    II. But if plaintiff’s corporate capacity was in issue and necessary to be proved, the defendants’ admission was competent evidence of the fact. Admissions are not limited to the proof of facts otherwise provable by parol. Any issuable fact may be proved against a party by his admission, whether matter of record or contained in a written instrument. Earl v. Picken, 5 C. & P., 542; Smith v. Palmer, 6 Cush., 513; Edgar v. Richardson, 83 Ohio St., 581, 592; Haynes v. Brown, 36 N. H., 545.
    III. But if the admission objected to was incompetent, the error was immaterial and not ground for reversal.
    Plaintiff’s corporate existence was not only admitted on the trial, but was otherwise established by abundant and uncontradicted proof. The admission, therefore, of incompetent evidence to establish it, not being prejudicial, could not be ground of error. Evans v. Reynolds, 32 Ohio St., 163, 166; Kilbourn v. Fury, 26 Id., 153, 161.
    “ The rule that an agent employed to sell can not himself be a purchaser, unless he is known to his principal as such, applies where the employment is to sell at a stipulated price.” Ruckman v. Bergholz, 37 N. J. Law, 437. He can not sell to a firm of which he is a member. Francis v. Kerker, 85 Ill., 180. Nor to a third person for the joint benefit of himself and such person. Hughes v. Washington, 72 Id., 84. It is, therefore, at the principal’s election, a conversion, for an agent to so deal with the principal’s property.
    Exemplary damages, including reasonable counsel fees, were properly allowed. Roberts v. Mason, 10 Ohio St., 277; Finney v. Smith, 31 Id., 534, 535.

      Jordan, Jordan & Williams, for defendants in error.
    1. The admission of the answer as evidence of the incorporation of defendant was erroneous. Taylor on Evidence, § 754, cites Gould v. Oliver, 2 M. & G. R., 234; Harrington v. McMorris, 5 Taunt, 228; Firmin v. Crucifix, 5 C. & P., 98; Montgomery v. Richardson, Id., 247; Ingram v. Lawson, 2 M. & Rob. 253.
    2. As to the measure of damages:
    The only foundation upon which a claim for damages rests is that the title of the 130 tons remained in plaintiff by reason of the innocent impression of Harper that he had a right to take an interest in the iron as purchaser, and, therefore, that defendants must account for its value at the time of its conversion, which would- be the measure of damages in the absence of actual fraud. See Field on Damages, 626; Sedg. on Damages, (6th ed.), 600; Kennedy v. Strong, 14 Johns. R., 128; Suydam v. Jenkins, 3 Sanf. Law, 614, 616; Baker v. Drake, 53 N. Y., 211; Sturges v. Keith, 57 Ill., 451; Turner v. Ritter, 58 Id., 264; Neiler v. Kelly, 69 Pa. St. R., 403; Matthews v. Coe, 49 N. Y., 57; Robinson v. Hartridge, 13 Fla., 501.
    3. There was no actual fraud, hence exemplary damages could not be allowed. 1 Sedg. on Damages, 38, 138, note a; 185, note a; 2 Sedg., 323, note a; Moore v. Croso, 43 Ind., 30; Miller v. Kirby, 74 Ill., 242; Scott v. Bryson,
      74 Id., 420; Farrell v. Warren, 70 Id., 28; Becker v. Dupree, 75 Id., 167; Roberts v. Mason, 19 Ohio St., 277; Railway Co. v. Bartram, 11 Id., 465; Smith v. Railroad Co., 23 Id., 18.
   Dickman, J.

This action was brought in the superior court of Cincinnati, by the plaintiff in error, the Peckham Iron Company, against the defendants in error, E. L. Harper, George E. Clymer, R. C. Trivett, Jr., William A. Rogers and William H. Harper, partners under the firm name of E. L. Harper & Company. It is alleged in the petition of the plaintiff below, that the plaintiff is a corporation duly organized and existing under the laws of the state of Missouri. As a first cause of action the petition alleges, that on or about August 19, 18,79, the defendants falsely and fraudulently represented to the plaintiff that they, as agents of the plaintiff, had made a contract with Mitchell, Tranter & Co., a firm doing business in the city of Cincinnati, for the purchase by the latter from the plaintiff, of three hundred tons of “Peckham blooms iron,” at the price of fifty dollars per ton; and during the months of October and November, 1879, the defendants procured from the plaintiff one hundred and eighty -|||-| tons of said iron, for the ostensible purpose of filling said contract. That the defendants did not, in truth, make said contract so represented by them to have been made, and did not appropriate said iron to the filling of any such contract, but converted the same to their own use. And, as a second cause of action, it is further alleged in the petition that, on or about March 15,1880, the defendants also converted to their own use 7-|-||-|- tons of iron, the property of the plaintiff.

Eor answer to the first cause of action the defendants admit their co-partnership, and say, that they have not, as individuals, had any dealings, of any kind, with the plaintiff, and that all their dealings and business with it have been as such copartners. They admit and allege, that the plaintiff is a corporation, incorporated and existing under the laws of the state of Missouri, and engaged in the business of manufacturing blooms from iron ore. But, they deny each and" every averment and allegation contained in the first cause of action, in manner and form as therein stated, except as set forth in their answer. For answer to the second cause of action stated in the petition, they deny each and every averment and allegation therein contained in manner and form as therein stated.

On motion of the plaintiff, the answer of the defendants to the first cause of action stated in the petition, was stricken out as redundant and irrelevant, to which the defendants excepted. The defendants thereupon, by leave of the court, filed an amended answer to said first cause of action, and it was ordered, that the entry theretofore made, granting the plaintiff’s motion to strike out, he set aside. Upon filing this amended answer, the plaintiff moved to have stricken from the same as redundant, irrelevant and surplusage, a designated portion thereof containing, among other things, an admission of the corporate existence of the plaintiff, but also embracing a denial of each and every allegation in said-first cause of action not admitted in the amended answer. This'motion of the plaintiff to strike out, was granted only in part. The admission of the plaintiff’s corporate existence was stricken out with other matter, but the denial of the allegations in the first cause of action, as above stated, was left to constitute a part of the amended answer. To the order of the court thus granting in manner and form the motion of the plaintiff to- strike out, both plaintiff and defendants excepted.

At the trial in the court below, the plaintiff in order to prove that it is a corporation, and to prove its legal capacity to maintain this action, offered in evidence so much of the original answer of the defendants as in the words following, viz: “ The defendants further say, that the plaintiff is a corporation, incorporated and existing under the laws of the state of Missouri, and engaged in the business of manufacturing blooms from iro.n ore.” To which, the defendants objected, and called the attention of the court to the fact, that the said portion of said answer had, with other portions, been stricken out by the court on the motion of the plaintiff; and that the amended answer denied that the plaintiff is a corporation as alleged in the petition. But the court overruled the objections of the defendants, and permitted the said portions of the answer to be read in evidence to the jury — to all of which the defendants excepted.

The trial resulted in a verdict and judgment for the plaintiff for a sum embracing the plaintiff’s counsel fees, and an unpaid balance on the iron in q estion at an estimated value of |70 per ton. A bill of exceptions, embodying all the evidence given to the jury and the charge of the court, was tendered and allowed. The district court on error reversed the judgment of the court below, upon the sole ground, that the court erred in admitting in evidence the admission contained in the original answer of the defendants to prove the corporate capacity of the plaintiff; the district court, without passing upon any other questions, holding that that fact could only be proved by the record of incorporation. This court is asked to reverse the judgment of the district court, and affirm that of the superior court.

Among the several assignments of error in the district court, the only ones which we deem it material to consider are, 1st. That the superior court erred in admitting in evidence, the admission contained in the original answer of the defendants, to prove the corporate capacity of the plaintiff. 2d. That the assessment of the amount of recovery was too large. 3d. That the superior court erred in ruling out, and in refusing to admit certain evidence offered at the trial by Harper & Co.

The district court based its reversal solely upon the first of the above alleged grounds of error; but, it is contended, that if the court erred in so doing, the judgment of reversal may be supported upon either of the other two grounds.

It is a well-settled rule, that parties are bound by their written admissions made in the progress of a cause as a. substitute for proof of any material fact, and cannot repudiate them at pleasure. The admission of the existence of a corporation by pleading and setting forth the fact, comes within the rule, and is binding, as between parties to the suit, and in the same suit in which such admission is made. Carradine v. Carradine, 38 Miss., 698; Elwood v. Lannon's Lessee, 27 Md., 200. Harper & Co. in their original answer, alleged and admitted under oath the incorporation of the Peckham Iron Company. And the same admission was made in their amended answer: True, it was in both instances, from its juxtaposition, stricken out with other matter, on motion, as redundant. But though stricken out, the fact that the admission had been made under oath, was not thereby annulled. The order of the court granting the motion was excepted to by the defendants, and by so doing they preserved their admission as a part of the record. When offered in evidence by the plaintiff as a part of the original answer, it was still a part of the record, and had not lost its original character as a deliberate declaration or admission of the plaintiff’s corporate existence. The denial left in the amended answer after the admission of the plaintiff’s corporate capacity was stricken out, was not thereby enlarged, but remained as originally verified under oath, a denial in fact of that only which had not been admitted in previous parts of the amended answer.

Furthermore, the dealings of Harper & Co. with the Peck-ham Iron Company in its corporate name, were of such a nature as not to permit a plea by them of nul tiel corporation. In full recognition of the plaintiff as a body corporate, they got possession of the one hundred and eighty tons of iron in question. The transaction they turned largely to their own pecuniary profit and advantage; and in subsequent dealing with the plaintiff, in reference to a purchase of stock in its corporation, they fully recognized its corporate existence and capacity. Under such eircum.stances, we think that Harper & Co. are estopped to deny the legal existence of the plaintiff as a corporation. Bigelow on Estoppel, 464; Newburg Petroleum Co. v. Weare, 27 Ohio St., 343; Farmers’ & Merchants’ Ins. Co. v. Needles, 52 Mo., 17; City of St. Louis v. Shields, 62 Id., 247.

As to the measure of damages — were they excessive? The relations existing between the plaintiff and Harper & Co. were those of trust and confidence. The latter were the agents of the former to sell the Peckham blooms iron on commission, and in effecting sales, were legally bound to act in the best faith towards their principals. Certainly they were not expected to report sales as made to others, while they, themselves, were the real purchasers to secure the benefit of a rising market. On August 16, 1879, the plaintiff, by letter, directed Harper & Co. not to offer for sale over two hundred tons of blooms. This letter in the regular course of mail, should have reached Cincinnati the next morning. But on August 18, Harper & Co. wrote to the plaintiff, that before the receipt of the letter of the 16th, they had sold three hundred tons of the blooms iron to Mitchell, Tranter & Co., fifty tons to be delivered as soon as possible, and the balance in November, December and January following. Yet, in fixing the date of this sale, E. L. Harper testifies, that it was not made until late in the afternoon of August 18. An order was at once enclosed to the plaintiff for the blooms said to have been sold to Mitchell, Tranter & Co., to be delivered in Cincinnati. It was an unwelcome order to the President of the Peckham Iron Company, who at once wrote to Harper & Co., “ I was in hopes my letter would reach you in time to stop the negotiations, as I did not want to make any further contracts for future delivery, preferring to take our chances of the market when we had the blooms to deliver.” E. L. Harper further testifies, that in a day or two after August 18, William H. Carruthers, one of the firm of Mitchell, Tranter & Co., informed him that of the three hundred tons of blooms, his firm had purchased fifty tons only, and that he was the purchaser of the balance. Yet, when the plaintiff wrote to Harper & Co. to know whether they could not get “ Mitchell, Tranter & Co. off with less than three hundred tons,” they reply, under date of August 23, “ Mitchell, Tranter & Co. are unwilling to decrease their order below three hundred tons.” And even as late as October 6,1879, the plaintiff writes to Harper & Co., “ we want to know exactly what you sold them,” — Mitchell, Tranter & Co., — “ so that there will be no complaints hereafter about misrepresentations;” and Harper & Co., on the 8th of October, reply, “ the lot was sold to Mitchell, Tranter & Co.” While the plaintiff was thus being misled as to the real purchasers, the truth was, that Mitchell, Tranter & Co. were the purchasers of only fifty tons, and E. L. Harper and William H. Carruthers were secretly the purchasers, for their joint benefit, of the balance of the three hundred tons — at $50 per ton — Harper keeping the matter from his partners as being “ none of their business,” and Carruthers keeping his own firm in the dark, ’that E. L. Harper might sell to them and others, this very iron at an advanced price, ostensibly on behalf of Harper & Co., but really for the sole benefit and advantage of E. L. Harper and William H. Carruthers.

It was doubtless in view of these facts and others of a kindred nature, that the jury, as manifest from the verdict, must have found, that E. L. Harper, for the purpose of deceiving the plaintiff and getting possession of the iron in question, had falsely and fraudulently represented a sale of three hundred tons as having been made to Mitchell, Tranter & Co.; and after having thus acquired possession, had colluded with Carruthers to gather the' fruits of the fraud.

It is a fundamental rule, that an agent employed to sell cannot be a purfchaser, unless he is known to his principal to be such; nor is the rule inapplicable or relaxed when the employment is to sell at a fixed price. Ruckman v. Bergholz, 37 N. J. L., 437. The law will not suffer one to earn a profit, or expose him to the temptation of a dereliction of his duty, by allowing him to act at the same time, in the double capacity of agent and purchaser. Church v. Marine Ins. Co., 1 Mason, 341. As said by Chancellor Walworth in Van Epps v. Van Epps, 9 Paige, 241, “ It is a rule which applies universally to all who come within its principle, which principle is, that no party can be permitted to purchase an interest in property and hold it for his own benefit, when he has a duty to perform in relation to such property, which is inconsistent with the character of a purchaser on his own account and for his individual use.”

The verdict returned by the jury in this case — made up as it was in part of plaintiff’s counsel fees, and damages accruing from the loss of a rising market in iron — is to be regarded as rather compensatory than punitive in its character. But, it is contended, that from the amount of the verdict, the jury must have allowed exemplary damages, and the question arises, whether upon such a state of facts as the jury must have found, exemplary damages were authorized. We think that where an agent by false and fraudulent representations to his principal, obtains possession of his principal’s goods and converts them to his own use, exemplary damages may be allowed; and in such a case, the jury, in estimating the damages, may include the plaintiff’s reasonable counsel fees as an item of compensation. Roberts v. Mason, 10 Ohio St., 277; Finney v. Smith, 31 Id., 534, 535. Upon a review of all the testimony, we are not prepared to say, that the verdict rendered by the jury in this case is not sustained by sufficient evidence; or, that the ingredient of fraud entering into the transaction and brought home to Harper & Co., was inadequate or of such a character as not to justify the amount of damages awarded.

The false representations by E. L. Harper were made in the name of his firm, and in the course of its regular business. His partners are therefore bound, though they may have had no knowledge of, or connection with, his dealings with the plaintiff. Fraudulent representations by one partner, in the course of the partnership business; will bind the firm and create a liability coextensive therewith. Story on Part., §§ 108, 131.

It is contended in behalf of the defendant, that the superior court erred, in excluding evidence offered to show that the Peckham Iron Company had previously authorized Harper & Co. to sell blooms on the terms of the sale reported. But such evidence, in our judgment, was not relevant to the issue. The question was not, whether the terms of the sale exceeded the authority of the defendants; or whether the terms would have been ratified if submitted to the plaintiff; but whether the defendants by falsely and fraudulently representing to the plaintiff that they had sold three hundred tons of iron to Mitchell, Tranter & Co., thereby obtained possession of the same, and with the ostensible purpose of filling the sale converted the iron to their own use. Being satisfied from an examination of the whole record, that there is no ground of error upon which the reversal by the district court of the judgment of the superior court can be sustained, the judgment of the district court must be reversed and that of the superior court affirmed.

Judgment accordingly.


author: McCauley, J.

text:
    Elliott vs. Berry.
    The provisions of section 4925 of the Revised Statutes, authorizing the levy of an extra tax to improve a state, county or turnpike road, do not authorize the levy of such tax to improve a certain specified part only of such road.
    Error to the District Court of Butler County.
    It appears from the record in this case: That there is a free turnpike or county road in Butler county extending from the village of Le Sourdsville to the village of West-v Chester, a distance of about six miles. •
    That about the 20th day of May, 1880, one John Pocock and others filed with the auditor of the county a petition praying for the levy of an extra tax under section 4925 of the Revised Statutes, to improve that part of the road within the following limits : Beginning at a point in said road just thirty-five rods north from the center of the free turnpike road running east and west through the village of Tylersville, thence in a northerly direction through sections 30 and 36 in Union township and sections 31 and 32 of Liberty township, to a point 32 rods south of the intersection of a county road in Liberty township and there end, being a distance less than two miles.
    That upon this petition the auditor made a levy of six mills on the dollar valuation for the years 1880, 1881 and 1882, on the taxable property within one mile of the road, and half the distance between this road and any other turnpike road parellel, or nearly parallel, with it.
    That the property of plaintiffs in error was within the limits of the levy, and was taxed for the improvement.
    The plaintiffs in error brought their action to enjoin the collection of this tax, alleging various reasons why it was not valid, none of which need be considered, if the tax can not be levied to improve a part only of the road.
    After judgment in the common pleas, the case was appealed to the district court where judgment was given for the defendant.
    A petition in error is filed here asking for a reversal of this judgment.

      Israel Williams, S. C. Gard and Allen Andrews, for plaintiffs in error.

      Thomas Milliken, for defendant in error.
   McCauley, J.

If the tax levied by the auditor was not authorized by section 4925 of the statutes, it is not necessary to consider the alleged formal defects in the proceeding in which it was levied, such as the failure of two thirds of the resident freehold taxpayers to sign the petition, or that the signers were not bond fide freehold taxpayers, and other defects and acts of bad faith that are alleged as a ground for the relief demanded. If such defects in the proceeding existed, they would only furnish another reason why the tax was invalid.

Section 4925 provides: “When two thirds of the resident freehold taxpayers living on the line of any state road, county road, or turnpike road, file a petition with the auditor of any county for an-extra tax for the purpose of constructing, improving or repairing such road, he shall levy such tax, of any amount that may be required not exceeding six mills on the dollar valuation, in any year, on all the lands and taxable property for any distance on each side of such road not exceeding one mile, and in no case more than half the distance from such road to any other state, county or free turnpike road running parallel or nearly parallel thereto.”

This section does not in terms provide that it shall be applicable to any part of a road; but that the tax shall be levied for the purpose of constructing, improving or repairing such road. The section is part of a chapter of the statute relating to roads in various ways. Section 4908 provides that a road, or any part thereof may be vacated by a proceeding for that purpose. Section 4918 authorizes county commissioners to appropriate as a county road, any turnpike or plank road, or any part of such roads, that may remain unfinished for five years. Section 4915 provides that twelve freeholders, by petition to the probate court, may have a turnpike or plank road, or a part thereof declared abandoned. And sections 4916, 4918 and 4931 of the same chapter authorize and direct proceedings in reference to roads or parts thereof.

These numerous provisions in the same chapter applicable to roads or parts thereof, indicate that if it were intended that section 4925, while it provides for the improvement of a road, should apply to only a part thereof, such case, as in other cases, would be provided for, in terms.

Section 4927 leaves but little - doubt that the proceeding under section 4925 applies to the road, and not to a part of it only. This section provides: “ That the auditor of any county shall levy such tax on the land and property on the line of any such road, in any township, when petitioned for by three fourths of the resident freehold taxpayers on such road, in such township only.” When it is proposed to improve under section 4925 the whole road, the petition for the improvement shall be signed by two thirds of the resident freehold taxpayers living on the road; but when the improvement is to be made under section 4927 the part of the road in one township only, the petition shall be signed by three fourths of such taxpayers. When the improvement is less than the whole road, and the expense of it may fall upon a small part of those who would be liable to improve the whole road, a greater share of those liable to be taxed shall petition. In other words, that an improvement shall not be authorized in an exceptional ease except upon such necessity for it as to move three fourths of those liable to pay for it, to sign the petition.

Section 4927 provides for the improvement of a part of a road, and in the absence of any other provision for such improvement, if a part only is to be improved the proceeding we think should conform to this section. The tax having been levied in conformity to the provisions of section 4925, was unauthorized and void.

Judgment reversed.


author: Nash, J.

text:
    Baker vs. McGrew.
    H., in her will, devised, gave and bequeathed to C. B. and D. B., her grandchildren, one sixth of her residuary estate. She then provided, that in case of the death of both grandchildren, without issue, the property coming to them should be given to the other grandchildren of the testatrix. It appeared from all the words of the will that the contingency contemplated by the testatrix was one to occur prior to the distribution of her estate.
    Held: That if C. B. and D. B. survived the testatrix, their title to said share became absolute, and on their subsequent deaths, without issue, passed to their legal heirs.
    Error to the District Court of Clarke County.
    The facts are stated in the opinion.

      Keifer & White, for plaintiff in error.
    An estate in personalty bequeathed to A. with the qualification that if he should die without issue, it should go to another, vests the estate absolutely in A. Rewalt v. Ulrick, 28 Pa. St., 388; Williams v. Daniels, 12 Wheat, 650; 2 Kent’s Com., 353, 354; Jackson v. Bull, 10 John., 19; 1 Red. on Wills, 476-8, par. 5 and 9; Manderson v. Lukens, 23 Pa. St., 31; Hall v. Priest, 6 Gray, 18, 21-2.
    In Hall v. Priest, the court draws the distinction between the effect of the use of the same words when applied to personalty instead of realty. The whole case is one in point. See, also, King v. Beck, 12 Ohio, 390, 474; Schouler on Per. Prop., 9, p. 179, (ed. 1873); Williams on Per. Prop., pp. 264-5, (5th Am. ed.); Chandless v. Price, 3 Vesey, 99; Moody v. Walker, 3 Ark., 117.
    In addition to the foregoing, the following authorities each seem to be directly in point in this case. Landon v. Moore, 45 Conn., 422; Deering v. Sage, 68 Maine, 318; Blum v. Evans, 10 South Car., 56.
    Words which would create an estate tail in realty, when applied to personalty, create an absolute estate in the first taker. 23 Pa. St., 388, supra; 11 Wend., 260, 278-279; Jackson v. Bull, 16 John., 537; Jackson v. Bull, 10 Id., 19; Ide v. Ide, 5 Mass., 500; 2 Kent’s Com., *353; Chandless v. Price, 3 Vesey, 99; Cooley’s Blackstone, Book II, 398.
    A devise to a man, and if he dies without issue, is always construed to create an estate tail. 11 Wend., 288; 3 Vesey, 99.

      Bowman f Bowman, for defendant in error.
    It is, and was, we submit, at the date of this will, authoritatively settled in Ohio, that the words, “ if he die without issue,” and other words of similar import in a will, do not refer to an indefinite, but to a definite failure of issue, and that they mean “ if he die without issue living at his death.”
      Parish's Heirs v. Ferris, 6 Ohio St., 563; Niles v. Gray, 12 Id., 320.
    In as much as the bequest and devise over in this will is “to the surviving children of my.said daughters,” the words of the will would refer to a failure of issue at the death of the Baker children, even under the artificial, common law interpretation of the words. Hughes v. Sayer, 1 P. Wms., 534; Fosdick v. Cornell, 1 Johnson, 440; Jackson v. Blansham, 3 Id., *293; Jackson v. Statts, 11 Id., 337; Executors of Moffatt v. Strong, 10 Id., 12; Nichols v. Skinner, Prec. in Chan., 528, cited in 10 Johnson, supra ; Anderson v. Jackson, 16 Johnson, 382; Lyn v. Burtis, 20 Id., 483; Jackson v. Billinger, 18 Id., 368; Wilkes v. Lion, 2 Cowen, 333; Jackson v. Chew, 12 Wheat., 94; Bowman v. Christman, 4 Wend., 237.
   Nash, J.

Catherine Hertzler died in January, 1872, leaving three daughters, each having ehiídren, and leaving also eleven other grandchildren — the children of these daughters who died before Mrs. Hertzler executed the will now in controversy in this action. The will was made in February, 1870, and is in the following words:

“Know all Men by these Presents, That I, Catherine Hertzler, of Clark county, state of Ohio, of sound and disposing mind and memory, do make and publish this my last will and testament, hereby revoking all other wills.
“ Item. I give, devise and bequeath a specific legacy of two thousand dollars to the children of my daughter Barbara, intermarried with Samuel Huffman; two thousand dollars to the children of my daughter Ann, intermarried with Henry Snyder; and two thousand dollars to the children of my daughter Mary, intermarried with John Rubsam, to be set apart for them out of the first moneys coming into the hands of my hereinafter named executors, the annual interest of said sums, respectively to be paid to the said Barbara, Ann and Mary, during their natural life, and at the death of the said Barbara, Ann and Mary, the principal sums aforesaid shall be paid to their children, or the survivor of them ; in case of the death of the children of my daughter Barbara, then one half of the share coming to them shall be given to the children of Ann, and the other half shall be given to the children of Mary, the same rule to be applied in case of the death of all the children of either Ann or Mary; and in case of all the children of any two of my said daughters Barbara, Ann and Mary, then the share coming to them shall be given to the surviving children of either Barbara, Ann or Mary, as the case may be.
“ Item. As to the rest, residue and remainder of all my estate, I devise, give and bequeath as follows:
“ To the children of my daughter Barbara, the one sixth share; to the children of my daughter Ann, the one sixth share; to the children of my daughter Mary, the one sixth share; to the children of my daughter Martha, deceased, the one sixth share; to the children of my daughter Susan, deceased, the one sixth share; to the children of my daughter Elizabeth, deceased, the one sixth share.'
' “ The annual interest of said one sixth share bequeathed to the children of my daughter Barbara, shall be paid to my daughter Barbara during her natural life, and at her death the principal shall be equally divided among her children. The annual interest of said one sixth share bequeathed to the children of my daughter Ann, shall be paid to my daughter Ann during her natural life, and at her death the principal shall be equally divided among her children. The annual interest of the one sixth share bequeathed to the children of my daughter Mary, shall be paid to my daughter Mary during her natural life, and at her death the principal.shall be equally divided among her-children. In case of .the death of all the children, without issue of either of my daughters Barbara, Ann, Mary, Martha, Susan and Elizabeth, then the one sixth share coming to them so deceased, shall be given to the surviving children of my said daughters. Thus, if all the children of one of my daughters die without issue, then the share coming to said deceased children shall be divided into five equal parts; and if all of the children of two of my daughters die without issue, then the shares coming to said deceased children shall be divided into four parts, and so on.
“ In case I should die before my grandchild Catherine Pope arrives at the years of majority, Mrs. Mellinger, wife of Jacob Mellinger, shall have the custody thereof, and in case of the death of said Mrs. Mellinger, the guardian of the said Catherine Pope, appointed by the probate court of Clark county, Ohio, to take charge of the estate she received from Daniel Hertzler, shall have the custody or provide a suitable place for her.
“ I hereby constitute and appoint my friends Henry Mouk and Joseph Harshman, executors of this will.
“ In testimony whereof, I have hereunto set my hand and seal this 9th day of February, A. D. 1870.
“ Catherine Hertzler. [seal.]
“ Signed, sealed and acknowledged by Catherine Hertzler as her last will and testament in our presence, and signed by us in her presence and at her request, the ninth day of February, A. D. 1870.
“John H. Protzman, Osborn, Greene Co., O.
“David M. Martin, Osborn, Greene Co., O.

One of Mrs. Hertzler’s deceased daughters, Martha, had intermarried with the plaintiff in error, L. J. M. Baker. At the time of the making of the will two children of Mr. and Mrs. Baker were living, to wit: Catherine and Daniel. These children lived until after the death of their grandmother, Catherine having died April 2d, 1874, and Daniel having died October 8th, 1878.

These grandchildren having deceased without issue, the question now presented is, did the property which Catherine Hertzler devised, gave and bequeathed to them in her will ascend to their father at their death, or did it pass to the surviving grandchildren of Catherine Hertzler?

The word “ coming ” taken in connection with the words “shall be given ” solves this question.

Upon the death of Catherine Hertzler in January, 1872, the property bequeathed to Catherine and Daniel Baker vested in them, became their property, and after that time could not in any sense be said to be coming to them. After the making of the will but before the testatrix’s death, the property was only the property of Catherine and Daniel Baker in expectancy — it was coming to them.

The use of the words “ shall be given ” are very significant. In the first instance Mrs. Hertzler devised, gave and bequeathed one sixth of the remainder of her estate to Catherine and Daniel Baker. Upon the death of the testatrix it was the duty of the testator to place the devisees, if of full age, in possession of the property, otherwise to hand it over to their guardian. The words “shall be given” were evidently intended as a direction to the executor as to what to do, in case this could not be done. This contingency could not happen if the grandchildren survived the testatrix. It could only happen in case all the children of one or more of the daughters died before the death of Mrs. Hertzler.

Giving the words of her will their ordinary and natural meaning, we conclude that the contingency contemplated could only árise in case the devisees should die prior to testatrix’s death.

Having given this construction to the will, it follows that the property bequeathed to Catherine and Daniel Baker vested in them at the death' of Mrs. Hertzler, and as they died without issue or the marriage of either, it ascended under the statutes of Ohio to their father, the plaintiff in error.

Judgment reversed.


text:
    Railway Company vs. Staley.
    A railway company, by its train, unlawfully obstructed a village street. S., therefore, walked around the rear of the train, entered another street, and there, having selected one of several routes to her home, .■ slipped on some ice, fell, and sustained serious injury. The same railway company had placed the ice there in the process of clearing its track, which occupied part of the street. The street was laid out after the railway was in use, and the rights of the public in said street were subject to tbe rights of tbe railway company. .
    Held: 1. The proximate cause of the injury was the placing of the ice in the street.
    2. If the railway company was not in fault in so placing the ice, it was not liable for the injury caused by the fall.
    Error to the District Court of Warren County.
    On the 17th of January, A. D. 1877, a freight train of the Pittsburgh, Cincinnati & St. Louis Railway Company, bound east, went upon a side track at Morrow, Warren County, Ohio, at eight o’clock, R. m., and remained there until five minutes after nine o’clock. Although the train crossed Center street in the village, no cars were uncoupled and that street was completely blocked. The only reason for this was the expectation of the conductor that he would be ordered to move his train eastward at any moment. Mrs. Emily E. Staley, and others, resident in the village at points north of the railway, were in a church on Center street, one square south of the railway, when the train arrived. When the service ended they found the train blocking the street, and after waiting ten or fifteen minutes, they went to the west end (the rear) of the train, passed around the rear car, walked eastward between the tracks the length of three, or four cars, turned northward to cross another track of the railway, and as she was “just stepping off the last track” she slipped upon some ice piled there, fell and sustained serious injury to her “whole limb from the hip down.” She suffered much pain, was confined to her bed for a time, to her room for a longer time, and claimed that her health was permanently impaired. A number of other women pursued the same route, some before, some behind, and some with Mrs. Staley. None of them fell. The evidence showed that it was unnecessary for her to step upon the pile of ice on which she slipped and fell.
    The village of Morrow was laid out after the railway was in use, and one street called “ Railroad street ” included the railway tracks, and ran in the same direction with them. Snow fell and ice formed on the tracks in this street. The company to clear its tracks for the passage of trains, removed this ice and snow and cast it in the street on either side of the tracks. Mrs. Staley sued the company. The answer made the general issue. Evidence as to the manner in which the ice had been placed there was before the jury at the trial. The charge to the jury contained the following instruction: •
    “ But suppose the jury should find that there was negligence in the blocking of the street by the company, but none in the placing of the piles of dirt, ice or snow on or over which it is claimed the plaintiff fell without fault on her part in going that way, or in the mode of going ? what, then, is the law ?
    “ Here comes the difficulty in the application of the rule as to proximate or remote consequences.
    “ Undoubtedly injuries might have been received by her as she passed around the train, for which the company would not be liable. For instance, suppose as ■ she passed along, attempting to cross the road, she had been struck by a stone thrown by some ruffian. Clearly she would not thus have been injured if she had not gone by that route, but it is equally clear that this injury would not be one for which the company was liable.
    “But suppose the injury results - while so prudently and carefully passing around by some other instrumentality placed or maintained there by the defendant. I confess that I have great difficulty in arriving at a conclusion on this point.
    “ The law seems to me to be this: ‘ That if the original act (in this case the blocking of the street) was wrongful, and would naturally, according to the ordinary course of events prove injurious to some other person or persons, and does actually result in injury through the intervention of other causes which are not wrongful, the injury shall be referred to the wrongful cause, passing by those which are innocent.’ And an-illustration of this doctrine given in the law books is the wrongful throwing" of a lighted squib, which being innocently warded off by several persons, at last struck and put out the eye of another person. The original thrower was held liable. Now it seems to me that the question whether the injury in this case to Mrs. Staley was the proximate result of the original blocking of the street, is one not to be settled by the court, but by the jury under appropriate instructions from the court. And I say to you that if the evidence shows that prior to the time in question, the agents and servants of the company were in the habit, frequently, of blocking this same street by its cars unlawfully and negligently, and for more than five minutes, and persons thus prevented from crossing the street were accustomed to pass around the end of the train west of Center street, down Railroad street, and there cross the tracks and highway substantially as was done by the plaintiff, and these facts were known to the officers and agents of the company, that in such case the jury should determine, under such circumstances, whether the result which followed to Mrs. Staley might reasonably have been anticipated by the company, the defendant, and if you find that it might, and there was no fault on the part of the plaintiff, the company in that would be liable.
    “But that if there was no such reason to apprehend the result, I say to you that it would not be the proximate result of the original act.”
    The verdict was for the sum of $1,625, in favor of the plaintiff. A motion for a new trial was overruled and a bill of exceptions, containing all the evidence, duly made part of the record.
    Nineteen errors were counted on in the petition in error. The seventeenth complained of the charge. The district court affirmed the judgment of the common pleas, and we are asked to reverse the judgment of both courts. Other parts of the charge and several refusals to charge as requested by the defendant, were also duly excepted to and assigned for error.

      Charles Darlington, for plaintiff in error.

      The fact that Railroad street was laid out with the railroad on it, and subject to the right of the company to operate its trains along the street, gives to the company the right to remove the dirt, snow and ice in the manner and for the purpose stated. Short v. R’y. Co., 50 Md., 73. The placing the snow and ice on the street was the proximate cause of the injury. Daniels v. Ballantine, 23 Ohio St., 538. Cooley on Torts, 68, 69, 70; Tisdale v. Inhabitants of Norton, 8 Met., 388. The proximate cause being lawful there is no redress for the injury.

      J. D. Wallace and J. F. Smith, for defendant in error.
    The blocking of Center street by the train was unlawful and was the proximate cause of the injury. Billman v. R'y. Co., 76 Ind., 166; Addison on Torts, § 12; Beauchamp v. Saginaw Mining Co., 50 Mich., 163; Clark v. Chambers, 7 C. L. J., 11; Thomas v. Winchester, 6 N. Y., 397; Richter v. Freeman, 50 N. H., 420; Griggs v. Fleckenstein, 14 Minn., 81; Weick v. Lander, 75 Ill., 96 ; Powell v. Deveny, 3 Cushing, 300; McDonald v. Snelling, 14 Allen, 290; Lane v. Atlantic Works, 111 Moss., 136; 109 Id., 277; 59 Ill., 349; 118 Mass., 251; 2 Thompson’s Negl., 1083; 56 N. Y., 200; 80 N. Y., 212.
   Granger, C. J.

We are satisfied that the railway company violated section thirty-one (31) of the act relating to roads and highways, passed March 9,1868, (S. &. S., 669,) and thereby became “liable for all damages arising to any person from such obstruction.”

Counsel upon both sides have aided the court by able and carefully prepared arguments citing and commenting upon the numerous cases in which the question “ What was the proximate cause of the injury? ” has been discussed by American and English courts.

Judge Cooley, at page 69 of his work on Torts, thus briefly states the test:

“If the wrong and the resulting damage are not known by common experience to be naturally and usually in sequence, and the damage does not, according to the ordinary course of events, follow from the wrong, then the wrong and the damage are hot sufficiently conjoined or concatenated, as cause and effect, to support an action.”

Apply this to the noted “ Squib ease,” Scott v. Shepherd, 2 W. Bl., 892. As soon as the fire reaches the explosive material in the squib an explosion naturally and usually follows. If, when thrown, it falls so near a person, that, to pick it up and cast it hurriedly elsewhere is the obvious means of escape from harm, such action naturally, and, we may add, usually follows. If this thus occurs in a crowded market space, the natural and usual result would be injury to some one other than the person at whom it was first' thrown. So long as the act of the second thrower is the result of mere impulse to avert danger to himself by removing the dangerous thing to a distance, the first thrower’s act is in progress. But if the second thrower deliberates, even for a mere instant, and, with intent to injure a third person, casts the squib at him, such deliberation and intent puts an end to the act of the first thrower, and the thing done by the second thrower is not his fault.

So also if a wholesale druggist prepares a jar of belladonna, labels it “ extract of dandelion,” and sells it as such to a retail dealer, who uses it as “ extract of dandelion ” in filling a prescription: the great suffering of the patient, who takes the medicine so prepared, is plainly the natural and usual result of the act of the wholesale dealer. In the case referred to, the defendant prepared the jar to be sold to a retailer whose regular business it was to incorporate it in prescriptions to be swallowed by patients. The “ concatenation ” of Judge Cooley is particularly complete in this case of Thomas v. Winchester, 6 N. Y., 397.

In Clark v. Chambers, 7 Cen. L. J., 11, the defendant wrongfully placed a dangerous spiked hurdle in a private way, along which the plaintiff had a right to pass. Some person, without the defendant’s knowledge, moved it a short distance, but left it still in the same private way. The plaintiff passing on a dark night, with knowledge of the original position of the hurdle, thinking to avoid it, came into collision with it and was injured.

Having unlawfully placed the dangerous movable thing in a passage-way, so long as it remained in that way, it was there by the defendant’s act. That such a movable thing in such a place would be moved by some passer-by, is, it seems to us, natural and not unusual; and he who originally placed it there should be held to contemplate such a possibility, and be responsible for results so long as he suffers it to remain in that way.

And we see Judge Cooley’s “ concatenation ” in Griggs v. Fleckenstein, 14 Minn., 81, and Weick v. Lander, 75 Ill., 93. The injury complained of in each of these cases, by a plain, clear and simple chain of cause and effect was “ conjoined” to the wrongful act' of the defendant, and was the result of its continuing force. In the Minnesota case the action of the defendant’s team frightened other horses and, we may well say, forced them against the horse and sleigh of the plaintiff. In the Illinois case the stoppage of the foremost wagon by defendant’s fault forced the stoppage of the second wagon in such a position that the tongue of the third wagon, ex necessitate, passed into the second wagon and did the injury complained of. The like continuing force of the wrongful act is apparent in Brown v. The Railway, 54 Wis., 342, and Drake v. Kiely, 93 Penn. St., 492.

In the Wisconsin case the wrongful act caused a pregnant woman to leave the train three miles short of her destination on a,cloudy night. This act forced her to walk to the station. This effort caused the injury.

In the Pennsylvania case the “lad of tender age” was' wrongfully and forcibly put upon a train, carried five miles and there put off. This act forced him to go over the five miles. The doing this caused the injury. In each case the precise thing that did the injury was forced upon the injured person by the wrongful act of the defendant.

But the fact that she walked around the train was not the cause of Mrs. Staley’s injury. Other persons that night walked ■ around the same train without harm. In the full possession of her faculties, she passed safely around the obstruction and beyond its influence; she was walking in a street in which others were then safely walking; she stepped upon a small pile of ice without necessity. She could, at will, have gone on either side of it; she might have, walked between the rails of the unoccupied track, from which the snow and ice had been removed, until she arrived at the usual crossing of Center street, from which the train (before she passed around it) had excluded her. The turning to cross that track in order to there cross the street was a voluntary act on her part. It was a selection of one of several convenient routes to her home. We are unable to see any chain of cause and effect leading back from it to the obstructing train. True, if the train had not blocked the way, she would not probably have been at the turn in Railroad street at the point where she decided to cross that street; but so long as the obstructing train did not compel her to take that precise route, and step on that pile of ice in order to reach her home without undue delay, her decision to there attempt to cross that street was in no sense, in no particular, forced by that train; hence it did not cause her fall.

The charge attempted to trace a possible “ concatenation ” of cause and effect by stating “ that if the evidence shows that prior to the time in question, the agents and servants of the company were in the habit frequently of blocking this same street by its cars unlawfully and negligently, and for more than five minutes, and persons thus prevented from crossing the street were accustomed to pass around the end of the train west of Center street, down Railroad street, and there cross the tracks and highways substantially as was done by the plaintiff, and these facts were known to the officers and agents of the company, that in such case the jury should determine under such circumstances whether the result which followed to Mrs. Staley might reasonably have been anticipated by the company, the defendant, and if you find that it might, and there was no fault on the part of the plaintiff, the company in that would be liable.”

As no evidence tended to show that prior to that night any one fell while passing there, we do not perceive how knowledge by the company that people were in the habit of following the route taken by her, without any fall or injury, would make her fall a “ usual and natural ” result of the obstruction of Center street by a train; or that such fall “ might reasonably be anticipated by the company.”

It seems to us that unless the company was at fault in placing the ice where she trod upon it and fell, no verdict ought to have assessed upon the defendant any damages for that fall.

While we thus hold that the pile of ice was the proximate cause of Mrs.. Staley’s fall, we agree with the cases cited by her counsel, that in such cases “ the question as to whether the cause was remote or proximate is for the jury, under the instruction of the court.” But we think that the charge as given misled the jury, and that the evidence, as set out in the bill of exceptions, clearly proves that the act of stepping on the ice where she fell was not forced by the train, but was the result of her own choice of route after the train had ceased to be an obstruction to her. The court should apply the law to those facts; and as we understand it, such application determines that the position of the train was not the proximate cause of the fall.

A demurrer to the petition raised the question whether the latter charged the company with any fault in the matter of the ice. Perhaps it may be construed as averring, in substance, that the blocking of the street compelled her to step upon the ice placed by the defendant, and that while so stepping, under such compulsion, she, without her own fault, fell. If this be so, the demurrer was rightly overruled.

We deem it unnecessary to consider the other alleged errors.

Judgments below reversed, and cause remanded for a new trial.