author: White, J.

text:
    Sloan v. Biemiller.
    1. The rule of the English common law that the owners of land situate on the hanks of non-tidal streams, though navigable in fact, are owners of the heds of the rivers to the middle of the stream, is not applicable to the owners of land bounding on Lake Erie and Sandusky bay.
    .2. The right of fishing in Lake Erie and its bays, is not limited to the proprietors of the shores; and the right of fishing in these waters is as public as if they were subject to the ebb and flow of the tide.
    3. The prima facie right of the public is not rebutted by proof of the mere uninterrupted enjoyment of the privilege of fishing for the period requisite to perfect a title by prescription ; the mere lawful exercise of a common right for that period does not establish an exclusive right.
    4. Where no question arises in regard to the right of a riparian owner to build out beyond his strict boundary line, for the purpose of affording such convenient wharves and landing places in aid of commerce as do not obstruct navigation, the boundary of land, in a conveyance calling for Lake Erie and Sandusky bay, extends to the line at which the water usually stands when free from disturbing causes.
    5. A deed conveying land contained a reservation in the following terms: “And the said grantee shall not have the right to sell or remove sand from said premises, nor shall he have the right of fishing in either the lake or bay, the same being expressly reserved by the grantor. The said grantee shall have the right, however, of landing on either the bay or lake shore for other purposes than to take sand, fish, or to carry to and from seines and fishing tackle, all of which rights are exclusively reserved by the grantor, so that he may lease the same or sell the same.” Held, 1. That the attempted exclusion of the grantee by the first clause of the reservation from the right, disconnected from the shore, of fishing in either the lake or bay, is inoperative. 2. The right reserved to the grantor is the exclusive right of landing on either shore to take sand, fish, or to carry to and from the shore seines and fishing tackle to be used in the adjacent waters in direct connection with the shore; and the inhibition against the carrying of fishing tackle to and from the shore by the defendant, has reference to tackle to be used in connection with the shore in contravention of the right reserved to the grantor; and does not forbid the storing of tackle on the premises conveyed, which is not thus used.
    Reserved from the District Court of Erie county.
    The original action was brought to quiet the title of the plaintiff to certain real estate, and to enjoin the defendant from interfering with certain fishing rights alleged to belong to the plaintiff.
    In the petition the premises are described “ as a narrow strip of land in the form of a peninsula, and usually known as Cedar Point, in the township of Huron, county of Erie,, and State of Ohio, and extending from the south shore of' Lake Erie, in said krwnship, in a northwesterly direction several miles, to the mouth of Sandusky bay, and bounded on the northeasterly side by the waters of Lake Erie, and on the southwesterly side by the waters of Sandusky bay;, excepting about five acres on the northwesterly end of said Cedar Point, owned and occupied by the United States government asa site for a light-house; and excepting, also,, about sixteen acres sold by the plaintiff to the defendant (subject to reservations), as hereinafter set forth.”
    It is further alleged that for many years, and now, the shores of said Cedar Point (on the bay side to the center of the bay, and on the lake side so far as the land underneath and the waters are susceptible of any beneficial use for fishing purposes), have constituted, and now constitute, valuable fisheries ; and that the plaintiff is the owner of said fisheries, and of the shores for fishing purposes, excepting-only the shores and adjacent waters of that part of said Cedar Point which belongs to the United States ; that said fisheries are real property, and that the plaintiff is in possession thereof by his tenant Geiersdorf; that said tenant entered into possession March 1,1866, under a lease for seven years, and is now in possession thereof, although he-has been disturbed in the use and enjoyment thereof by the wrongful acts of defendant.
    That on or about April 15, 1865, plaintiff, in pursuance-of a previously existing contract, sold and (subject to the exceptions, reservations, and limitations contained in the deed) conveyed to defendant about sixteen acres of said Cedar Point. The deed is set out in full. That this deed did not convey, and was not understood to convey, any right to fish in the adjacent waters, nor to use the shores for fishing purposes. But the defendant, by virtue of said. •deed., claims these rights, and has disturbed said tenant by ■exercising them for a year past, and those rights are of great value, to wit, $10,000.
    In the deed referred to, the premises are described as follows: “ Situate in the county of Erie, in the State of Ohio, .and in the township of Huron, and bounded and described .as follows, subject to the reservations hereinafter expressed: Being a part of “ Cedar Point,” east of the old Eagle’s nest -on said Point, to wit: Commencing at a stake on the bay .shore; thence N. 60°, E. 3 14-100 chains to a cedar stump .standing N. 67°, E. 63 links from a pepperidge twenty inches in diameter; thence N. 60°, E. 3 6-100 to the lake shore; thence N. 40°, W. 19 60-100 chains; thence S. 60°, W. 9 16-100 chains to a stake standing S. 54°, E. 12 8-100 chains from .an elm thirty-one inches in diameter; thence following the bay shore to the place of beginning, containing 15 8-100 acres of land, be the same more or less, excepting and reserving to the grantor and not conveyed a strip of land fifty feet wide, commencing at said cedar stump and running a line N. 40°, .W. 19 60-100 chains, and said strip of land being twenty-five feet east and west from said stump and running the entire length of said piece of land along said line fifty feet in width.”
    Also a certain piece of land in said Cedar Point, and described as follows, to wit: “Commencing 3 22-100 chains south from said cedar stump, at a stake standing N. 29°, E. 7 links from a pepperidge two feet in diameter; thence S. •52J°, "W. to a stake on the bay shore; S. 44°, E. 7 chains to a stake; thence N. 52J°, E. 2 40-100 chains to a stake standing N. 9°, E. 31 links from a basswood three feet in •diameter; thence N. 44°, W. 7 chains to the place of beginning, one and 68-100 acres, more or less.
    “And the said grantee shall not have the right to sell or ■remove sand from said premises, nor shall he have the right •of fishing in either the lake or bay, the same being expressly reserved by the said grantor. The said grantee ■shall have the right, however, of loading on either the bay •or lake shore for other purposes than to take sand, fish, or carry to aud from seines and fishing tackle, all of which rights are exclusively reserved by the grantor, so that he may lease the same or sell the same.
    “ To have and to hold said premises, with the appurtenances, unto the said Andrew Biemiller, and to his heirs and assigns forever.”
    The prayer of the petition is “ that the title of plaintiff to said fisheries and the use of the said shores for fishing purposes may be quieted, and the adverse claim of an estate? right, or interest in said fisheries by said Biemiller may be forever determined and put an end to, and that said Biemiller may be perpetually enjoined from setting up any claim to said fisheries or the use of said shores for fishing purposes, and from in any way interfering with the plaintiff or his said tenant in the exclusive enjoyment of said fisheries, and of said shores for fishing purposes; aud for such other relief as in equity he is entitled to.”
    The defendant, in his answer, avers that Lake Erie and Sandusky bay, adjoining Cedar Point are public waters, used, •to a large extent, for navigation by the general commerce of the country, and for other public purposes; that the plaintiff does not own, and never did, the waters adjoining to said Point, or any part thereof, or the lands underneath and covered by said waters, or the fisheries in said waters ; that he is not in the exclusive possession, and has no exclusive right to the possession or enjoyment of the fisheries. The defendant denies that he has entered upon the waters adjacent to the land purchased by him of plaint-tiff, and disturbed or interfered with plaintiff in any of his rights, interests, and estate therein to fish; or used the shores for fishing purposes; but admits that he has constructed and used fishing pounds in Lake Erie, but says the same are not connected with the shore, and are exclusively within the navigable -waters of the lake, and not upon any premises owned or in possession of the plaintiff or his tenant.
    In the district court the case was referred to a master, to take the testimony and report his findings thereon to the court. The following facts appear from the master’s report : At the commencement of the action the plaintiff was the owner of Cedar Point, except about four acres off the extreme, northwest end, owned by the United States for light-house purposes, and the sixteen acres conveyed to the defendant, as mentioned in the petition. In the written agreement, by which the defendant purchased the premises, and in pursuance of which the deed was made, the land to be conveyed is described as follows: “ Fifteen acres-of land on Cedar Point, so called, to be in the vicinity of the present shanty occupied by the said party of the second part” (the defendant); “ and it is hereby agreed and understood, that in case said party of the second part shall select lands on the shore of the bay or lake, that he shall not have the right to sell and remove sand from the same, nor shall he have the right of fishing in either the lake or bay, the same being expressly reserved by the said party of the-first part. The said second party shall have the right, however, of landing on either the bay or lake shore for other purposes than to take sand, fish, or carry to and from seines and, fishing tackle, all of which rights are exclusively reserved to the said party of the first part, so that he may lease the-same or sell the same. ... It is agreed that said second party may select said lauds in three different places, if he so elects.”
    Cedar Poiut is mostly a sand beach, extending from the main-land in the second section of Huron township, in a northwesterly direction, between Sandusky bay and Lake Erie, some seven or eight miles, the northwest part having some timber and'pasture on it; but the Point is principally valuable for getting sand and for fishing purposes.
    On the lake side of Cedar Point the fishing is carried on,at the present time, by means of pounds, which commence about one hundred rods from the shore, and extend into-the lake, at l’ight angles thereto, which is in a northeasterly direction.
    Lake Erie is from forty to forty-five miles wide opposite-Cedar Point, in a northerly direction, striking the Canada^ shore at Point-au-Pelee, and on this line the water, in the deepest places, is about forty feet deep, and the deep waters of Lake Erie are east of this line.
    Sandusky bay is about eighteen miles long, and averages about four miles wide; is navigable for boats drawing eleven feet of water. Sandusky bay empties into Lake Erie between the northwest point of Cedar Point and the Peninsula Point. That part of Sandusky bay called the cove, and its surroundings, is very well represented by the map in 13 Ohio, next to page 431. The cove between Sandusky and Cedar Point is three to three and a half miles wide. Frcm the East Battery in Sandusky to the carrying place is about four miles. The carrying place is shown by the narrow place, on this map, nearly opposite the mouth of Pipe creek. The water deepens gradually from the Cedar Point shore into the cove, and is, in deepest parts, about ten to twelve feet deep. The cove is about one mile wide between Grass Point and the cai’rying place, and the watex’, in the deepest parts, is about ten feet deep. Sandusky river empties into the west end of Sandusky bay, and is navigable, for boats drawing eight feet of water1, to Fremont, a-distance of twenty-two miles from Sandusky bay.
    The waters of1 Sandusky bay ax'e on the level with the waters of the lake, and rise and fall with the same. The current sets out and into the bay, accordingly as the wind may be in an easterly or westerly direction. There is no other-perceptible current, but if there was no wind to affect the cun'ent the water would run out all the time.
    The waters on both sides of Cedar Point, where the said fishing is carried on, are navigable, and are used largely for the purposes of navigation. The boats that navigate Lake Erie draw from three to thirteen feet of water.
    Before the deed described in the petition was made, a plat of the lands was made, which is made part of the re-poi't. The boundary line on the bay side coincides with the shore of the bay; the line on the lake side of the piece first mentioned in the deed, does not follow the shore, but is a straight line which cuts into the waters of the lake in places, and in places onto the beach. The smaller piece of land conveyed does not reach to the lake.
    The lead of the defendant’s first pound commences about one hundred rods from the shore abreast his land in about eighteen feet of water. He set it here first in the spring of 1861, and has two pounds on his string. He has set his string in this locality ever since. In 1869 he had ten pouuds, and the outer end of his string of ten pounds extended into the lake about eight miles and was set in water forty-two feet deep. It is practicable to set pounds in forty-two feet of water, but they can not be set in much deeper water owing to the difficulty of getting stakes long enough for the purpose, as- they have to be about twelve feet longer than the depth of water.
    All the time the defendant fished there, till the spring of 1866, he had a lease from the owners of the point. The defendant expresses his determination to fish there in the same manner he has done, until he is prevented by the law.
    The proximity of the strings of pounds of the defendant and Geiersdorf is such that they interfere with each other; that is, if the defendant’s strings of pounds were not put in the water, more fish would be likely to get into Geiersdorf’s pounds, and vice versa. Strings of pounds can be set so close to each other as to interfere.
    The fisheries in Sandusky bay are called winter fisheries, and the fishing in the waters between Sandusky and Cedar Point is mostly carried on under the ice in the wdnter time with seines. Holes are cut in the ice, and the seines are put under and hauled under the ice. The shores of Cedar Point are not used for hauling the seines, but the fishermen have shanties there and live there.
    Sometimes, when the ice was poor and unsafe to leave the twine on, the fishermen would pull the sleds on which the twine was ashore for safety, and when they got through fishing at the end of the season they would take the twine and other fishing tackle and put it into the defendant’s 'barn, sometimes on the Point and sometimes in Sandusky. At one time in the winter of 1867-68, the defendant helped draw the twine ashore.
    On the lake side of Cedar Point the fishing was carried ■on by means of seines, prior to the commencement of pound fishing, which was about 1854. A lake seine was a largo net, with a rope fastened to a capstan on shore. The seine is then run out into the lake about eighty or ninety rods, and a return line brought back and fastened to the capstan ; the seine is then hauled in and fish in that way taken.
    There are two fishing seasons in each year in the lake ; one in the spring and the other in the fall. In the spring fishing season of 1866, the defendant took his fishing tackle from his premises on Cedar Point, where he had stored them at the close of the previous fishing season, and set it in the lake in the locality above indicated, and landed on his said premises no other time for fishing purposes that year. A part of the spring season he had a landing on the government land, but afterward moved his shanties to San-dusky, and carried on his fishing the remainder of that year from Sandusky.
    In the years 1867, 1868, and 1869, the defendant’s fishermen lived on his premises on Cedar Point during the fishing season. In the morning they take their boats, go to the pounds, lift the fish, and bring them to Sandusky ; then returning to Cedar Point, draw their boats on the shore, and remain there until the next morning; which maneuvers they repeat each day through the season, unless too stormy. When he puts his pounds in the water in the spring and fall, he takes his boats, stakes, and twine, when it is stored there, from his premises on Cedar Point, and sets the pounds as aforesaid, and when the fishing season is over, takes up his stakes and twine, and stores the stakes and boats on said premises, and the twine he sometimes stores there, but usually brings the twine to Sandusky to .store. In 1867 and 1868, the defendant had a railroad from the bay to the lake shore, over which he would haul his boats.
    On or about the 3d day of January, 1865, the plaintiff' leased all those parts of Cedar Point, as mentioned in the petition to said Geiersdorf.
    On or about the 18th day of April, 1868, the plaintiff conveyed all of Cedar Point, except the government land and the land of the defendant, and the plaintiff’s interest in the fisheries, by deed to said Geiersdorf and Eritz Nichols, who now own the same.
    Erom October, 1849, until the present time, the owners of Cedar Point have leased the same to sundry persons for fishing purposes, and the fisheries belonging thereto. And Cedar Point has been regularly under lease during all that time for fishing purposes, except when the owners themselves have fished there, and the owners have controlled the same, except the interference of Biemiller, above stated, and some other interference by other fishermen during the last four or five years.
    In carrying on the fisheries adjacent to Cedar Point, it is a matter of great convenience to have the privilege of landing on the Point for purposes of eating, sleeping, and storing fishing tackle.
    The master also finds that if the court shall be of opinion that the plaintiff, or his grantees, owns the fisheries in which the defendant fished, then he finds that Geiersdorf has sustained damages by the interference of the defendant in the following sums : In 1866, $400; in 1867, $650; in 1868, $900; in 1869, $950.
    On the master’s report, and certain exceptions thereto, the cause was reserved by the district court for decision by this court.

      H. Goodwin, for plaintiff in error :
    I. It must be conceded that the common law of England is the origin of all our common law.
    . It may be conceded that in England there are no great inland waters like Lake Erie, and therefore that the cir-cumstances, so far as that is concerned, are different here.
    But if the rules of the common law as to fisheries are just as applicable, and if the principles of justice will be subserved by the application of those principles, notwithstanding the change of circumstances, then there is every reason for their application.
    If these differing circumstances do not necessarily conflict with the application of the principles of the common law; or, in other words, if these circumstances do not present obstacles too formidable for their application, then there is no reason why their application should not be continued.
    And here it must be borne in mind, that, without a grant from the king, there could be no private right of fishing in navigable waters; that is, where the tide ebbed and flowed. And if our lakes are to be likened to navigable waters, then no individual has any right to fish there without a grant from the state (1 Wend. 261). But the state has never claimed any right to the fisheries of the lakes, and has never, and probably never will, -exercise the right of granting privileges of fishing therein. If, then, these fisheries are valuable property, and capable of ownership, we have got to find an owner for them outside of the state.
    There can be no ownership in the United States. The United States are a trustee to preserve navigable waters from impediments to navigation. This is all the right she has, and all the right she claims. 3 Ohio, 498; Pollard’s Lessee v. Hayan, 3 How. 230.
    In Ohio, there are no “ navigable waters.” I use the terms in their technical sense. “ Navigable waters,” technically so called, are those only where the “ tide ebbs and ■flows.” Blanchard v. Collins, 11 Ohio, 142; 6 Ohio, 510. ‘See also on same point, 3 Kent Com. 412 ; 12 How. 443.
    As to whether the common law regulating fisheries is .-adapted to the circumstances here, the court is referred to the following authorities : Gavit v. Chambers, 3 Ohio, 496, and authorities there cited; Benner v. Platner, 6 Ohio, 505; 8 Ohio St. 247: Blanchard v. Porter, 11 Ohio, 138; Lamb
      v. Rickets, 11 Ohio, 311; 16 Ohio, 544; 24 How. 65 ; 43 Ill. 447 ; 2 Smith’s L. C. (5th Am. ed.), 225 ; Rice v. Ruddiman, 1 Law Reg. U. S. 615 ; Looman v. Benson, 8 Mich. 18; Gough v. Bell, 2 Zab. 461; Bell v. Gough, 3 Zab. 658.
    We conclude, and have the right to conclude, from tlje authorities above cited, that on fresh-water streams, a,nd where the tide does not ebb and flow, the right of fishing-belongs to the shore owner. And the only question is, whether this rule should be applied to the lake. We are-aware that there are authorities which hold — so far as the admiralty jurisdiction is concerned, and so far as the right of docking out is concerned — that the common-law rules should not apply, and they very clearly should not. But there are no authorities, which we know of, that hold that they should not apply so far as the right of fishing is concerned. And we say they should. The custom of the country is that way. These rights are almost universally recognized.
    II. Can the plaintiff control the shores so that they can not be used for fishing purposes, such as landing boats and fishing tackle thereon, and departing therefrom with boats and fishing tackle, and drawing seines thereon, without the plaintiff’s consent, or against his remonstrance ?
    Conceding, for the sake of the argument — positions which we do not concede — that the lake and Sandusky bay are like navigable water, whei’e the tide ebbs and flows, and that the plaintiff can have no exclusive fishery therein, by virtue of his owning the shores, still the question recurs, may he so control his own land that nobody else can use it for fishing purposes ?
    This would seem to be almost, if not quite, a legal axiom, and a proposition most undeniable. If he owns the land, he surely ought to have the right of controlling it for all purposes. And if a stranger has equal right to fish in an arm of the sea adjacent, he could not use the plaintiff’s land for that purpose.
    But the proposition is not only clear in itself, but is most abundantly sustained by authority. Coolidge v. Williams,
      4 Mass. 144; Brink v. Reightmyer, 14 Johns, 259; Cortalyou v. Van Brunt, 2 Johns. 357; Hart v. Hill, 1 Whart. 138; Lay v. King, 5 Day, 72; Shunk v. Schuylkill, etc., 14 Serg. & Rawle, 71 ; Gray v. Bond, 2 Br. & Bing. 667; Hildebrand v. Fogle, 20 Ohio, 157; Bellinger v. Kilts, 6 Barb. 273 ; 1 Greenl. Ev., § 286 ; 2 Smith’s L. C. (5th Am. ed.), 226 ; Child v. Starr, 4 Hill, 369; Lincoln v Wildes, 29 Me. 169.
    The deed in question should be construed in the light of these authorities. And see Seymour v. Lord. Courtney, 5 Burr, 2817; Washburn on Easements and Servitudes, 411.
    III. Is the defendant, Biemiller, in a condition to dispute the right as claimed by the plaintiff?
    . We say that, by taking that deed, wherein is contained the reservation recited above, he is estopped from denying that the right of fishing in the lake or bay, or using the shore for fishing purposes, is not in the plaintiff.
    A reservation, says Lord Mansfield (5 Burr, 2817), is equal to a grant. And if Biemiller, being the general owner, had, for a valuable consideration, granted those reserved rights to the plaintiff, can there be a doubt about his being estopped from again asserting them ? See Skelly v. Bank, 9 Ohio St. 623; Dartmouth College v. Woodford, 4 Whart. 682 ; Fletcher v. Peck, 6 Cranch, 136 ; 2 Ohio St. 556 ; 2 Parsons on Contracts, 789.
    IY. Will a court of equity grant relief? See Webber v. Gage, 29 N. H. 182 ; 2 Story’s Eq., §§ 925, 927; Delaware v. Stump, 8 Gill & J. 479.

      M. A. Daugherty (with whom were J. M. Boot and W. G. Lane), for defendant:
    I. As to the clause of the deed of plaintiff to defendant, excepting certain rights as to fishing, etc., that clause can not operate in favor of plaintiff, as he claims, because it will not stand the test of a good exception given in Sheppard’s Touchstone, 77-80 :
    1. The words are not apt or definite.

      2. The things excepted are not parts of the things granted. There is no grant of a fishery.
    8. But while it is not part of the thing granted, the exception is of all the effect of the thing granted — the whole beneficial use, the entire profits ; and the exception is therefore void. “ This Cedar Point is mostly a sand beach, . . the northwest part having some timber and pasturage on it [but this part is not included in the deed to defendant] ; but the point is principally valuable for getting sand and for fishing purposes.” ” -
    This being so, the exception is repugnant to the grant, and deprives the grantee of the only possible beneficial use of the thing granted ; and this, according- to Sheppard (p. 79), can not be done.
    4. Pishing, if appendant to the land, is an inseparable incident, and could not, therefore, be excepted; but we do not claim that it is an appendant or appurtenant.
    5. The thing excepted — the fishery, the only thing in ■controversy in this case — is nota thing that belonged to the grantor-, and it could not, therefore, be excepted. Sliep. Touch. 79; Saunders v. Marwood, 5 Co. 126.
    In this connection it will be well to notice the case of Seymour v. Courtney (5 Burr, 2814), referred to and relied on by counsel for plaintiff. The term reservation is used in that case in the sense of exception, as shown by the context, and the question before the court was not between the grantor and grantee, but between the grantee and one who had no privity of estate with either ; and the thing to determine was simply what estate, if any, the grantee took, it being admitted that the grantor, who made the exception or reservation, was in fact the general owner of the fishery, as a several fishery. In that case the defendants contended that, the grantor, being the proprietor of a several fishery, had, in his grant of the fishery, or some interest in it, to the plaintiffs, so clogged the grant with exceptions of an oyster fishery, and the right to take other fish for his own table, that the grantees did not by the grant acquire a several fishery, for injury to which they sued. The court held a several fishery passed.
    This case, as it stands in the report, we accept, and insist on as good law, and it certainly, when understood in the light of the facts and issues, does not aid the plaintiff in the ease under consideration.
    It gives support to no such absurdity as that when a person who has no title to a fishery, grants to another a piece of land, and in the grant excepts or reserves the fishery, the grantor thereby gives or secures to himself either against his grantee or anybody else, any right to such fishery. After the grant the fishery remains as it wTas before, a free fishery, or the property of somebody else, unaffected by ■such vain exception or reservation.
    Equally unsustainable is the proposition elsewhere in their argument made by plaintiff’s counsel, that by this exception or reservation the grantee is estopped to deny the grantor’s title to the fishery. The grantee does not claim ■the fishery as a several fishery, or as in any way, either before or after this deed, derived from the grantor or from any ■other person. He claims it simply as a public right — -just the same right that he has to breathe the air that floats over ■Cedar Point, which we suppose he could not be estopped from ■claiming or using, even if the grantor had excepted or reserved the same to himself, his heirs, grantees, or lessees. And, apart from this consideration, it is very well settled that in a deed poll the grantee in a matter of this kind is -never estopped by its terms or recitals. Herm. on Estop. .241.
    We may then conclude that if the plaintiff had no title to the fishery before the making of the deed, he did not acquire any by the deed, either as against the defendant or anybody else.
    6. This is not a particular thing reserved out of the gen-' ■eral.
    7. The exception or reservation is set down with uncertainty. As to fishing, it applies to the whole lake and the -whole bay, without reference to the vicinity of the Point. The plaintiff, when he comes to sue, sees the necessity of limiting this clause to the waters adjacent to the Point. And so as to sand, which the grantee is prohibited from taking, and the grantor reserves the right to take without stint, eveu if in so doing he removed all that part of the Point which he granted to the defendant.
    II. The waters in question are public waters, in which the plaintiff' could not have the rights he claims. As to when rivers are public or private is a question very much confused in the United States by a contrariety of decisions, but no such difficulty exists as to lakes.
    1. As to rivers. By the common law in England, public or navigable rivers are usually defined by the ebb and flow of the tide; those being regarded as navigable or public,, in which, and to the extent to which, the influence of the tide is felt; and all others, whether navigable in fact or not, are regarded as private rivers. In the former, riparian proprietors own the land only to ordinary high-water mark ; in the latter, their title extends usque adjilum aqucer subject nevertheless to the easement in favor of the public, of navigation in those rivers that are in fact navigable.
    And, referring to this distinction, counsel for plaintiff say that in Ohio there are no navigable waters; and he cites Blanchard v. Collins, 11 Ohio, 142, and Callins, v. Chambers, 3 Ohio, 496, and a great many other cases in various states of the Union, in which this distinction, as to-riparian rights, is recognized and enforced.
    It is to be regretted that these eases, having their origin in a want of appreciation of the capacity of the great fresh water rivers in the United States, and (as subsequent facts, show, and subsequent decisions in states not hampered by these early and ill-considered decisions demonstrate), in contravention of public good, ever found place in the adjudications of this or any other state whose welfare so largely depends on the protection and fostering of public rights, so important as to have the sanction and support of magna eharta. Angelí on Tide Waters, 23 and 25.
    It is true that this distinction, which gives to riparian proprietors the ownership of the soil to the middle thread in fresh-water rivers, however navigable in fact they may be, has been adopted in the following states, beside onr own : New York, Comm’rs Canal Fund v. Kempshall, 26 Wend. 404; Massachusetts, Commonwealth v. Chapin, 5 Pick. 199; Connecticut, Adams v. Pease, 2 Conn. 481;. Maine, Berry v. Carle, 3 Greenl. 269; New Jersey, Arnold v. Mundy, 1 Halst. 1; Wisconsin, Walker v. Shepardson, 4 Wis. 486; Indiana, Stinson v. Butler, 4 Blackf. 285; Michigan, Loman v. Benson, 8 Mich. 18; Illinois, Middleton v. Pritchard, 3 Scam. 510 ; and Mississippi, Morgan v. Reading, 3 Smedes’ Mash. 366.
    On the other hand, we have decisions, early and late, in various states of the Union, that the leading mark, the ebb and flow of the tide, whereby the character of a navigable-stream, whether public or private, and whether the riparian proprietor owns only to the bank or to the middle thread of the stream, is determined, is not applicable to our great fresh-water rivers in the United States; that the magnitude and importance of the'public rights of navigation and fishery on these rivers — out of all comparison with anything above tide-water in England — demand that the spirit and reason of the rule, rather than the terms in which it is expressed in England, shall govern decisions here. See Lawson v. Blaver, 2 Bin. 475; Ex’rs of Cates v. Jesse Wadling, 1 M’Cord, 580 ; Wilson v. Forbes, 2 Dev. 30; Collins v. Benbury, 3 Ired. 277; Elder v. Burrus, 6 Humph. 358; Bullock v. Wilson, 2 Porter (sometime cited as 11 Alabama), 436; Castner v. S. B. Dr. Franklin, 1 Minn. 73 ; McManus v. Carmichael, 3 Iowa, 1.
    But when we pass from the conflict of opinions in the supreme courts of the various states, to an examination of the cases in the federal courts, w’e find a reason for this conflict in the contrariety of decisions on this matter between the earlier and later cases in the Supreme Court of the United States; the earlier decisions in this last-named court having adopted, without sufficient examination, the common-law definition of navigable rivers, while the later, on a fuller appreciation of the magnitude of our freshwater rivers, and their commercial importance, discard the common-law definition as unsuited to our circumstances.
    It will not be necessary to refer to many of these cases. Indeed, the case of The Genessee Chief v. Fitzhugh (21 How. 443) sufficiently develops the whole matter. It was decided in 1851.
    The principles thus settled by the Supreme Court of the United States in 1851, were reviewed and affirmed in 1870, in the case of Daniel Ball, 10 Wall 557.
    2. As to lakes. So far we have considered this question entirely with reference to rivers. When we come to consider the matter of riparian rights on the borders of lakes, we fortunately find no such conflict among elementary writers, or in the decisions of our state tribunals.
    Kent, who adopts the English definition of a public river, limiting it to the ebb and flow of the tide, does not apply this rule to lakes, but puts them in the same category with public l’ivers, as so defined. 3 Kent’s Com. 427, note b; lb. 429, note b; in which it is also stated that this is the law of Scotland. And see Angelí on Watercourses, 6th ed., by Perkins, §§ 41, 41a, 416, and 42, and cases cited.
    We have found but one case in the United States that countenances a different rule, as applied to lakes, and that is the ease of Rice v. Ruddiman, 10 Mich. 125, cited and relied on by counsel for plaintiff. This relates to Lake Muskegon, said to be six miles by two and a half in dimensions. In the case it was admitted that this little lake was an estuary of Lake Michigan, and not a mere widening of Muskegon river. Christiancy, J., in delivering the opinion of the court, attaches no importance to this admission, and one of the judges who concurred in the decision takes the same view of this admission; on the contrary, Martin, C. J., seems to attach importance to the fact that, in his opinion, it is not an arm of Lake Michigan. Neither of these three commit themselves to the proposition that their ruling would be the same if the question related to Lake Michigan, or if the Muskegon were, as a matter of law, a bay or estuary of the greater lake ; and it can not, therefore, be relied on as authority in the case at bar. Hooker v. Cummings, 20 Johns. 90.
    The majority of the court in this case found their judgment on the rule as to the definition of a navigable or public river — one in which the tide ebbs and flows — and they insist that this rule is applicable to Lake Muskegon. In this application they are not sustained by any English authority that we know of. As late as 1868, in Marshall v. U. S. Nav. Co., 3 B. & S. (113 E. C. L.), 732, the court (Queen’s Bench) quere, whether the soil of lakes, like that of fresh-water rivers, prima fade, belongs to the owners of the land or of -the manors on either side, ad medium filum aquae, or whether it belongs to the king in right of his prerogative. A doubt of this kind does not seem to occur to the Michigan court.
    By the way, this ease in 113 E. C. L. holds that, by the English authorities, it is settled that a several fishery, prima fade, imports ownership of the soil. “He that holds a several fishery must also be (or at least derive his right from) the owner of the soil.”
    In New Hampshire, in the ease of the State v. Gilmanton, the court hold that while in grants bounded on a river the center of the stream is the line, this rule does not apply to grants bounded upon a lake or large body of standing fresh water, but the grant in the latter case extends only to the water’s edge. 9 N. H. 461.
    The same doctrine is held in Illinois (Seaman v. Smith, 24 Ill. 521); W. Roxbury v. Stoddard, 7 Allen, 159. As will be seen by the last citation, the courts of New York recognize this difference between boundaries on fresh-water rivers and fresh-water lakes. It may, however, be well to refer the court to the case of the C. & St. L. R. R, Co. v. Valentine, 10 Barb. 484, in which the court, with reference to a boundary on Lake Champlain, after stating the rule in that state as to fresh-water rivers, says: “ This rule, however, is not applicable to our North American lakes.” See the court’s discussion of the question, commencing on page 490, which concludes by holding that the line is low-water mark. Robinson v. White, 42 Me. 209; Fletcher v. Phelps, 28 Vt. 257; Mariner v. Schulte, 13 Wis. 692.
    III. The public rights of navigation and fishery.
    The public rights of navigation and fishery go hand in hand in all public waters; and all waters are public, except only where the soil under them belongs to individuals. Fishery, as a public right, yields to no other, except only to that of navigation, and to it only to the extent needed to avoid obstruction.
    Whatever may be determined to be the American doctrine as to the character of our great fresh-water Western rivers — ■ whether they be public or private — we think there can be no question as to the character, in this respect, of our great lakes. They are, to all intents and purposes, and without question by a single authority (unless the case of Rice v. Ruddiman, supra, may be considered such an authority, which we deny), public waters, having all the incidents, both as to navigation and fisheries, that belong to the open seas, or arms, bays, or rivers, where the tide ebbs and flows.
    Regarding them in this light, as to what is the condition of their fisheries, see 1 Kent’s Com. 489; Rogers v. Jones, 1 Wend. 237; Houck on Rivers, 247; Angell on Watercourses, 65a, and note 2; Woolrych on Waters, 75, ch. 5; Angell on Tide Waters, 80; Id. 124; Martin v. Waddell, 16 Pet. 369.
    Now, it is the existence of this great public liberty — this public right of fishery — which has been so carefully hedged in and protected by the common law, that particularly alarms plaintiff’s counsel in this case. Speaking of fisheries, they ask: “ If the shore owners do not own them, who does own them ? ”
    There is no doubt as to the ownership of these fisheries. They belong where the soil under them belongs. They belong to the State of Ohio. The state can regulate them and regulate their use. It should be remembered that it is very lately that these fisheries have assumed any great commercial importance, and this, we believe, is the first case that has found its way into the supreme court that has relation' to these fisheries. Legislative attention has not been brought to the matter, because the attention of the people, who make the legislature has not been brought to it. Already, however, our legislature has turned its attention to1 the protection of fish and birds, and in due time this matter of public fisheries will have attention.
    In the case of Martin v. Waddle, supra, the decision is that the fisheries belong to the state within whose territory they are embraced; and in the case of Pollard’s Lessee v. Hagan, 3 Howard, 212, the same result is reached. And in this connection, see Angell on Tide Waters, 196, ch. 7.
   White, J.

The first question arising in this case is, whether the plaintiff in acquiring title to the part of Cedar Point not occupied by the United States, thereby, became invested with the exclusive right to the fisheries in Lake Erie and Sandusky bay, opposite the premises thus acquired.

The plaintiff’s claim is, in substance, that as owner of the land on the lake and bay shore, he has the right to control these fisheries to the middle of the bay and lake.

This claim is sought to be supported upon the doctrine of the common law of England, that in streams above the ebb and flow of the tide, the ownership of soil to the center of the stream is presumed to be in the adjoining proprietor, and that the right of fishing in such stream is not public, but is vested exclusively in the adjoining owners.

Whether the doctrine of the common law, which regards all non-tidal streams, that are in fact navigable, as mere highways, and as uon-navigable in law, is applicable to the condition of things in this country has given rise to much discussion, .and contrariety of decision. In some of the states this doctrine of the common law' is repudiated a3 inapplicable to the circumstances of this country; and streams, without regard'to the ebb and flow of the tide, which are navigable in fact, are i’egarded as navigable in law. Tyler’s law of Boundaries, 58 et seq.; Houck oxt Rivers, chapters 3 and 6, where the subject is discussed and the authorities collected. Railroad Company v. Schurmeir, 7 Wall. 272.

It has, however, been held in this state, as is the case in most of the states, that the owners of lands situate on the banks of fresh-water navigable streams are owners of the beds of the rivers to the middle of the stream, as at common law. Gavit v. Chambers, 3 Ohio, 496. The same doctrine has been recognized in subsequent cases. Lamb v. Rickets, 11 Ohio, 311; Walker v. The Board of Public Works, 16 Ohio, 544.

We are not called on in this case to review the doctrine laid down in Gavit v. Chambers. The question before us is, whether the rule there laid down, as applicable to navigable rivers, applies to the owners of land bounding on Lake Erie and Sandusky Bay. In our opinion, it clearly does not. In The Canal Commissioners v. The People, 5 Wend. 423, Chancellor Walworth said: “ Our large freshwater lakes or inland seas are wholly unprovided for by the law of England. As to these, there is neither flow of the tide nor thread of the stream; and our local law appears to have assigned the shores down to ordinary low-water mark to the riparian owners, and the beds of the lakes, with the islands therein, to the public.” And in Kent’s Commentaries it is laid down that, “in this country our great navigable lakes are properly regarded as public property, and not susceptible of private property any more than the sea.” 3 Kent’s Com. 429, note a.

The doctrine thus stated is fully supported by the adjudged cases. The State v. Gilmanton, 9 N. H. 461; The State v. Company, 49 N. H. 250 ; Fletcher v. Phelps, 28 Vt. 257; Austin v. The Rutland R. R. Co., 45 Vt. 215; Champlain and St. Lawrence R. R. Co. v. Valentine, 19 Barb. 485 ; Ledyard v. Ten Eyck, 36 Barb. 102; The People v. Gutchess, 48 Barb. 656; Wheeler v. Spinola, 54 N. Y. 377 ; West Roxbury v. Stoddard, 7 Allen, 167.

In Seaman v. Smith, 24 Ill. 521, the question was as to the location of a boundary line calling for Lake Michigan in the various deeds in a chain of title. It was held that the line at which the water usually stands, when free from disturbing causes, is the boundary of lands in a conveyance calling for Lake Michigan as a line.

In the opinion it is said : “A grant giving the ocean or a bay as the boundary, by the common law, carries it down to ordinary high-water mark. Costelyou v Brundt, 2 J. R. 357. . . . The principle, however, which requires that the usual high-water mark is the boundary on the sea, and not the highest or lowest point to which it rises or recedes, applies in this case, although this body of water has no appreciable tides. . . '. The portion of the soil which is only seldom covered with water may be valuable for cultivation or other private purposes.”

We are not required in this case to consider any question in regard to the right of a riparian owner to build out beyond his strict boundary line, for the purpose of affording such convenient wharves and landing places in aid of commerce as do not obstruct navigation. It was held in Dutton v. Strong that these rights of the riparian owner apply to the lakes as well as to tide waters. 1 Black, 23. See also Austin v. The Rutland R. R. Co., supra, 25 Vt. 215.

The question here is, whether the right of fishing in the lake and bay is limited to the plaintiff as the proprietor of the shores.

“ Fishery in the sea, and in the waters which are made to flow inland therefrom by its egress and influence, constituting, as it does, a great source of sustentation, has in all ages and in all countries been deemed of such importance that it has ever been regarded a privilege open and common to all persons.” Angelí on Tide Waters, 124.

And although the dominion over and the right of property in the waters of the sea and its inland waters were, at common law, in the crown, yet they were of common public right for every subject to navigate upon and to fish in, without interruption. Id. 21. They were regarded as the inherent privileges of the subject, and “ classed among those public rights denominated jura publica, of jura communia, and thus contradistinguished from jura corona, or private rights of the crown.” Id. 22, 80; Harg. Law Tracts, 11. The sovereign was the proprietor of these waters, as the representative or trustee of the public. In this country the title is vested in the states upon a like trust, subject to the power vested in congress to regulate commerce. Martin v. Waddell, 16 Peters, 367, 412; McCready v. Virginia, 94 U. S. (4 Otto), 391.

That fishery in such waters as Lake Erie and its bays should be as free and common as upon tide waters, and alike subject to control by public authority, is obviously just. The reasons for regarding the right as public is as great in the one case as in the other; and we have no hesitation in saying that the right of fishing in these waters is as open to the public as if they were subject to the ebb and flow of the tide.

The Supreme Court of New Hampshire, in speaking of Lake 'Winnipiseogee say : “ The right of fishing in the lake is not limited to the proprietors of the shore, but is common to all citizens of the state, just as much as the fishing in the tide waters of the Piseataqua.” State v. Company, 49 N. H. 250.

The plaintiff likewise claims a right to the fisheries in question by prescription. It appears from the finding of the master, that from October, 1849, up to the time of making his report, the owners of Cedar Point “ leased the same to sundry persons for fishing purposes, and the fisheries belonging thereto.” And that Cedar Point was regularly under lease during all that time for fishing purposes, except when the owners themselves fished there ; and that the owners controlled the same except when interfered with-by the defendant, and sometimes by other fishermen, during the four or five last preceding years. In the spring of 1866, the defendant ceased to fish under lease from the owners of the Point. At that time he commenced to carry on his fishing operations in his own right; and in the following year, May 4; 1867, the present suit was commenced. Fishing with pounds was commenced about the year 1854. Prior to that time, fishing was carried on with seines used in connection with the shore.

These facts dearly fail to establish a prescriptive right to the fisheries in controversy. The time is insufficient, even if the other facts necessary to support the claim were shown.

The prima facie right of the public is not rebutted by proof of the mere uninterrupted enjoyment of the privilege of fishing for the period requisite to acquire a title by prescription; the mere lawful exercise of a common right for that period never having been considered as conferring an exclusive right. Angelí on Tide Waters, 135, 270 ; D. & M. R. R. Co. v. Stump, 8 G. & J. 497; Chalker v. Dickinson, 1 Conn. 382 ; Id. 510; State v. Company, 49 N. H. 240,

The next question is as to the extent of the reservation contained in the deed from the plaintiff' to the defendant. The reservation is in the following terms :

“And the said grantee shall not have the right to sell or remove sand from said premises, nor shall he have the right of fishing in either the lake or bay, the same being expressly reserved by the said grantor. The said grantee shall have the right, however, of loading on either the bay or lake shore for other purposes than to take sand, fish, or carry to and from seines and fishing tackle, all of which rights are exclusively reserved by the grantor, so that he may lease the same or sell the same.”

The word “ loading,” should doubtless be read “ landing.” Landing is the word used in the contract, in fulfillment of which the deed was made; and the reservation is regarded by counsel as containing the word landing, instead of “ loading,” and it will be so treated by us.

Iir determining the effect of the reservation, it may be remarked, in the first place, that it can operate to reserve to the grantor only such rights as would have passed from him to the grantee by the deed in the absence of such reservation. It does not abridge the rights held by the grantee independent of the deed, nor does it enlarge the rights of the grantor beyond what they were before the execution of the deed. The attempted reservation, in the first clause of the right of fishiug in either the lake or bay, disconnected from the shore, is, therefore, inoperative.

The question is as to the extent of the reservations contained in the last clause. In giving construction to this clause, it is to be observed that all the estate and interest in the land is vested in the grantee, subject only to the rights reserved to the grantor. No right is denied to the grantee, in respect to his use of the land, except in so far as such right is saved to the grantor. The right is denied to the grantee of landing on the bay or lake shore to take sand, fish, or to carry to and from the shore seines and fishing tackle. The right reserved to the grantor, therefore, is the exclusive right of landing on either shore to take sand, fish, or to carry to and from the shore seines and fishing tackle. He can land on or occupy the shore for no other purpose.

It is claimed, on behalf of the defendant, that the reservation is repugnant to the grant, and is therefore void. We do not think so. The rights reserved might be granted by the owner of the premises upon which they were to be exercised; and if they could be granted, there is no reason why they might not be reserved — a reservation being but the equivalent of a grant.

The plaintiff not being entitled to relief in respect to the fisheries, which is the main subject of controversy, the only remaining question is whether there has been such an invasion of his shore rights as to entitle him to a decree for their quiet enjoyment.

We find nothing in the case to show that the plaintiff or his grantee has been prevented from landing on the shore for the purposes specified in the reservation; nor is their right to do so denied by the defendant. He sets up no interest adverse to the rights reserved to the plaintiff.

It appears from the report of the master that at times the fishermen of the defendant live on the premises, and that, in the fishing season, they take their boats, go to the pounds, and lift the fish, which they take to Sandusky, and then return to Cedar Point, and draw their boats on the shore, and x-emain there until the next morning. This course is continued during the fishing season. When the fishing season is over, the boats, stakes, and twine are sometimes stox’ed on the premises.

The right is not x'esexwed to the plaintiff to have his fish-ex’men reside on the premises; nor is there reserved to him any light of storing fishing tackle there. His light to the shox’e is limited to taking sand, fish, and to the carrying to and from the shore fishing tackle to be used for fishing in the adjacent waters in direct connection with the shore. And the inhibition agaixxst the carrying of fishing tackle to and from the shore by the defendant, has reference to tackle to be used in contravention of the right reserved to the plaintiff, and does not refer to the stoxixxg of tackle on the px’emises which is not thus used.

The master’s report also shows that sometimes, when the ice in the bay was unsafe, the fishermen would pull the sleds on which the twine was ashore for safety; and that at one time, in the winter of 1867-8, the defendant helped to draw the twine ashore. Whether the fisherman were authorized, by the defendant, to so use the shore does not appear. He sets up no claim to the use of the shore for such purposes, and in his answer he denies having so used it. The finding, that on one occasion the defendant used the shore for the purpose, is not a sufficient ground on which to found a decree to quiet title. The act is to be regarded rather in the nature of a temporary trespass, than as the assertion of a right. Moreover’, the act of the defendant now in question constituted no part of the cause of action set up in the petition, the act having been done after the commencement of the action.

We find, therefox’e, that the plaintiff is not entitled to the relief px’ayed for, and his petition is dismissed.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Ex parte Frank A. Ammons.
    The act of 1875 (75 Ohio L. 79), relating to fugitives from justice, is a valid enactment, in so far as it is in aid of the provisions of the constitution of the United States and the act of congress oil that subject.
    Application for a writ of habeas corpus.

      Hildebrant $ Bruner, for petitioner.

      IL. M. Moos and J. M. Pattison, contra.
    It is shown on behalf of the applicant that he is restrained of his liberty by the sheriff of Clinton county, in the jail of the county, by virtue of an order made by Hon. A. W. Doane, a judge of the court of common pleas in and for that county, on an examination had before him under the act of March 2-3, 1875 (72 Ohio L. 79), “ to regulate the practice of the delivery of fugitives from justice when demanded by another state or territory,” set forth at large, ante, 65.
    The petition of the applicant states that the order of commitment was made “ on proceedings had before said judge on a warrant issued by the Governor of Ohio, on a requisition of the Governor of North Carolina,” for the return of said Ammons, an alleged fugitive from justice. The substance of the order is stated to be “ that the said Ammons be committed to the jail of said county of Clinton for the space of twenty days, from the 21st of Eebruary, 1877, to await the order of the Governor of North Carolina for the extradition of said alleged fugitive.”
    There is no complaint that the demand for Ammons by the executive authority of North Carolina was not made, or that the warrant under which he was arrested was not issued by the Governor of Ohio, in due conformity to the provisions of the act of congress in respect to fugitives from justice, approved February 12,1798 (1 Stats, at Large, 302), re-enacted in 1873 (U. S. Rev. Stats., § 5278).
   By the Court.

The petitioner claims that his imprisonment is unlawful, for the reason, as he alleges, that the act of 1875, under which the order of commitment was made, is void.

The extradition of fugitives from justice, as between the states of the Union, as provided in section 2, article 4, of the constitution of the United States, is subject to the control of the congress of the United States; and congress having legislated on the subject, it is contended that the state legislature is without power in the premises.

’Admitting that it is not within the power of the state legislature to make provisions in conflict with the laws of congress on the subject, it is quite clear that state legislation in aid of congressional enactments is not objectionable:

The act of congress approved February 12, 1793, re-enacted in 1873 (U. S. Rev. Stats., § 5278), provides that, in certain cases, the executive authority of a state, to which a person charged with the commission of crime in another state shall have fled, shall cause such fugitive “ to be arrested and secured,” and cause such fugitive to be delivered to the agent of the executive authority of the state demanding his extradition.

The means by which the fugitive is “ to be arrested and secured” are not provided by the act of congress; hence the legislature of a state may and should provide proper and adequate means and facilities for the accomplishment of such extradition.

The act of our general assembly of March 23,1875, in so far as its operation is complained of in this case, is not in conflict with the constitution of the United States, or of the laws of congress.

The writ will therefore be refused.


author: Oket, J.

text:
    Wilcox v. Nolze.
    1. The power of a judge to discharge an alleged fugitive from justice, under the act of 1875 (72 Ohio L. 79), is essentially the same as under the habeas corpus act (75 Ohio L. 754).
    2. The provisions of the constitution of the United States (article 4, section 2) and the act of congress (U. S. Kev. Stats., § 5278), which provide for the extradition of those “who shall fleo from justice and be found in another state,” are confined to-persons who are actually, and not merely constructively, present in the demanding state when they commit the acts charged against them; and in a proceeding on habeas corpus, for discharge from arrest on a warrant of extradition issued by a governor, in compliance with the requisition of the governor of another stjte, parol evidence is admissible to show that there had been no such actual presence of the accused in the demanding state.
    Error to the Court of Common Pleas of Cuyahoga county.
    On February 8, 1878, Francis A. Nolze was indicted in the court of oyer and terminer, in the city of New York, for obtaining, on July 25, 1877, in that city, from Simpson & Co., by false pretenses, twenty-one piano-fortes.
    On March 4, 1878, the Governor of New York sent to the governor of this state a requisition for Nolze as a fugitive from justice. ■
    On March 9, 1878, the governor of this state, in pursuance of the requisition, issued a warrant, directed to the sheriff of Cuyahoga county, commanding him to arrest Nolze, and take him before a judge of the court of comr mon pleas of this state, to be examined and dealt with as provided in the act of 1875 (72 Ohio L. 79), relating to fugitives from justice.
    Wilcox, sheriff’ of Cuyahoga county, pursuant to the warrant, arrested Nolze, and took him before Plon. Jesse H. McMath, one of the judges of the court of common pleas, to be so examined and dealt with.
    During the examination, on application of Nolze, a writ of habeas corpus was issued, returnable before the same judge, with a view to his discharge from such imprisonment.
    On hearing of the case on habeas corpus, Nolze proved that the piano-fortes were obtained solely on representations made by him to an agent of Simpson & Co., at Cleveland, Ohio, on July 25, 1877, and that he had not been in the State of New York since September 1,1876. To the introduction of this evidence Wilcox excepted.
    The requisition and accompanying papers and warrant of extradition are substantially regular in form.
    Nolze was discharged, and it is now sought to reverse the judgment in the habeas corpus proceeding, on the ground that the acts constituted an offense in the State of New York ; that the case is, therefore, a proper one for sending Nolze to that state as a fugitive from justice; that the court erred in admitting parol evidence to show that he was actually in this state when he committed the acts complained of; and that the court erred in discharging him.

      EEord, Daioley Hord, and S. M. Eddy, for plaintiff in error:
    The act of 1875 (72 OhioL. 79) is unconstitutional. Hurd on Hab. Cor. 635 ; 12 Wend. 311; 16 Peters, 426 ; 22 Am. Reps. 63 ; Am. L. Rep., March, 1868, p. 164; 14 Howard (H. S.), 13; 5 Met. 550. If constitutional, the act of 1875 only permits inquiry into regularity of proceedings. 7 Ind. 611; 29 Ind. 10 ; 32 N. J. L. 341; 3 Blackf. 160 ; 4 Har. (Del.), 579 ; 2 Cal. 59; 9 Wend. 42; 13 Ga. 97; 56 N. Y. 182 ; 3 Ga. 311; 25 Wend. 483 ; 1 Comst. 173 ; 106 Mass. 223 ; 24 How. 66. The defendant, being in custody under the act of 1875, there could be no interference by habeas corpus. Hurd on Hab. Cor. 235 ; 1 Watts,. 66; 16 Ohio, 405 ; 8 Ohio St. 599; H. S. S. C., 6 Curtis, 169; 6 McLean, 355, 361; 21 Howard, 506. The duty of the executive was merely ministerial. 9 Wend. 212 ; 32 N. J. L. 141; 4 Har. (Del.), 572; 7 Blatch. 349; 5 Cal. 237; 122 Mass. 324. The court had no power to receive evidence on habeas corpus
      S. & 0. 681, 685 ; 56 N. Y. 182; 5 Oal. 227 ; SecLgw..Con. L. 395 ; Hard on Hab. Cor., §§ 327-338; 5 Hill, 164; 9 Wend. 212; 7 Blatch. 345; 1 Watts, 66; 1 Disney, 10; Cooley’s Con. L. 347 ; 4 Barb. 31 ; 6 McLean, 355 ; 21 Howard, 506; 8 Ohio St. 599; 122 Mass. 324; 3 Blatch. 1&0; 4 Har. (Del.), 572. The crime was committed in New York. 25 Ohio St. 217; 19 Am. Rep. 739 ; 3 Denio, 190 ; s. c., 1 Comst. 173 ; 1 Hale, 514; 1 Chitty’s C. L. 191; 1 Leach, 142 ; 21 Wend. 509 ; 32 N. J. L. 141; Sandf. L. 701; 1 Conn. 1.

      J. W. Iieisley and Henry McKinney, for defendant in error:
    He can not be extradicted, as he never fled from New York. 1 Sandf. L. 708 ; Hurd on Hab. Cor. 606 ; Cooley’s Con. L. 16; Sedgw. Con. L. 605 ; 1 Kent’s Com. 654; 1 Bouv. Die. Fugitives; 3 McLean, 121; 3 Centi'alL. J. 636; 32 N. J. L. 141; 23 N. J. L. 311; 5 Cal. 237; 2 Carter, 396. Act of 1875 valid. 5 Wheat. 49; 3 Wall. 713; 2 Peters, 250 ; 12 Howard, 319; 5 Cush. 550. Power of court. 16 Wall. 370; 106 Mass. 223;.56 N. Y. 186; 3 McLean, 121; 24 Howard, 66.
   Oket, J.

1. The writ 'of habeas corpus was obtained during the pendency of the examination of Nolze, under the act of 1875. That statute is set forth at large, ante, 65. In Ex parte Ammons, decided in 1877 (ante, 518), it was held that the act is valid, in so far as it is an enactment in aid of the constitutional provision and tlie act of congress. How far the statute is valid, and what construction it should receive, in other respects, was not determined. In effect, however, it confers on the accused, without any application therefor on his part, all the benefit he could derive from a writ of habeas corpus issued under our statute on that subject. (75 Ohio L. 754.) But the act of 1875 could not, without violating the provisions of the constitution of the United States, relating to fugitives from justice, secure to him any greater right or privilege than is guaranteed by the proceeding in habeas corpus.

The records in the two cases were, by consent, blended together, and the same facts appear in each case. There was no irregularity in hearing the cases together. While we are not clothed with power to review the proceeding under the act of 1875 — certainly not where the supposed error only appears, as here, by bill of exceptions (Sheldon v. McKnight, ante, 316) — the fact is immaterial in this case, for our right to review the proceedings on the writ of habeas corpus is unquestioned. 75 Ohio L. 758, § 26.

2. It is ordained, in the constitution of the United States,, that “ a person charged, in any state, with treason, felony, or other crime, who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.” (Const., art. 4, § 2.) These words taken, as they must be, in their natural and obvious sense, do not include a case of constructive presence in the demanding state and constructive flight therefrom, but relate only to a case where the accused is actually present in the demanding state at the time he commits the act of which complaint is made. That is the construction which congress placed on the provision by the act of 1793 (1 Stats, at Large, 302), which has remained in force, without material change, to the present day. (U. S. Rev. Stats., § 5278). The rule applicable to constitutions, as well as statutes, which may be properly invoked in this case, is that, where the language is clear, there is no room.for construction; and the spirit of a provision must be extracted from its words, and not from conjectures aliunde.

3. The governor of a state, in issuing his warrant of extradition of a fugitive from justice, acts in an executive, and not in a judicial capacity. He is not permitted to try the question whether the accused is guilty dr not guilty; he is not to regard a departure from the prescribed forms for making the application, or as to the manner of eharging the crime, in any matter not of the substance; and he is not to be controlled by the question whether the offense is or is not a crime in his own state, the inquiry being whether the act is punishable as a crime in the demanding state. Nor have the courts larger powers, in any of these respects, than the governor. Work v. Corrington, Ex parte Sheldon, ante, 64, 319; The People v. Brady, 56 N. Y. 182. But whether or not the accused committed the acts complained of while actually present in the demanding state, is jurisdictional; and it is clearly competent, in such case, to show by parol evidence a defect in the executive power, however regular the extradition papers may be in matter of form. In Jones v. Leonard, 19 Albany L. Jour. 112, the Supreme Court of Iowa decided these questions in the same way, and Dr. Spear, in liis valuable woi’k on the subject, strongly opposes the view of constructive presence in and flight from the demanding state. Spear on Extradition, 306.

4. There is no conflict in the testimony that Nolze’s statements were all made in this state to an innocent agent of Simpson & Co. Whether obtaining goods in that manner could constitute an offense in New York, is a question which we do not determine. See The People v. Adams, 3 Denio, 190; s. c., 1 Comst. 173 ; State v. Wyckoff, 2 Vroom, 65 ; R. v. Keyn, Law Rep. 2 Ex. D. 63, 232, 237 ; 4 South. L. Rev. N. S. 676, 702; Norris v. The State, 25 Ohio St. 217.

When one actually present in this state obtains, by false pretenses, through either a guilty or an innocent agent, goods from a person in another state, there can be no question that the offender should be punished. Neither congress nor our state legislature has attempted to provide for sending such person out of his state for trial and punishment. We express no opinion on the question whether such provision could or should be made. But there can be no doubt as to the power to punish such offender in this state, under a statute sufficiently comprehensive in its terms. It is now provided by statute that, “whoever, with firearms, or by sending poison or other thing, or by other means, kills or injures any person in another state, . . . shall be tried and punished in the county where the offender was at the time the poison or other thing was sent, or the force was used.” (74 Ohio L. 334.) There would certainly be no impropriety in extending this provision, in terms, to the ease of one who, being actually present in this state, obtains goods from a person in another state, by false pretenses. Possibly the provisions of our present statute (75 Ohio L. 562) may extend to such a case, but that is also a question which we need not decide.

Judgment affirmed.


author: Boynton, J.

text:
    Sturgeon v. Korte.
    1. An inmate of a county infirmary, who has adopted the township in which the infirmary is situated as his place of residence, having no family elsewhere, and who possesses the other qualifications required by law, is entitled to vote in the township in which said infirmary is situated.
    2. Such inmate is not under such legal restraint as to incapacitate him from adopting the township in which the infirmary is situated as his place of residence.
    Error to the Court of Common Pleas of Muskingum county.
    The original proceeding was instituted by the plaintiff, Thomas E. Sturgeon, against the defendant, Henry L. Korte, to contest the election of the defendant to the office of probate judge of Muskingum county, at the October election of 1878.
    The defendant’s right to the office depended wholly on the vote of inmates of the county infirmary.
    It appears from the special finding, that the county infirmary is located in Ealls township, in said county, and that forty-six inmates thereof voted at said election in that township; forty-two for the defendant, and four for the plaintiff. If these votes were legally cast, the defendant is entitled to the office; if not, the plaintiff was elected by ten majority.
    The following is the special finding as to the fact of residence :
    “ That each of said persons was, at the time he so voted, an inmate of said county infirmary; and that each of them was admitted into said infirmary from other and outlying townships in said county; that at the time they were so admitted, each and every one of said persons was a resident of, and had a legal settlement in, a township or ward other than Ealls township in said county; and that, at said time, no one of them, or any of them, resided in, or had a legal settlement in, said Ealls township.
    “ That each and all of said persons, at and prior to said election, had been inmates of the .infirmary aforesaid, and actually domiciled therein, for a sufficient length. of time prior to said election, and had other necessary qualifications to entitle them to vote in said Ealls township, if they might or could after becoming inmates as aforesaid, and while such inmates, change their several residences from outlying wards and townships of said county to said Ealls township, and that while so inmates as aforesaid, and for a sufficient length of time before said election, they severally did adopt said Ealls township as their permanent residence, and by such act of adoption and selection of said Ealls township, and not otherwise, did change their several ‘ residences ’ to Ealls township.”
    Upon these facts the court held, that said inmates were legally entitled to vote in said township, and gave judgment for the defendant. To reverse this judgment is the object of the present petition in error.

      A. W. Train, for the plaintiff in error:
    Can inmates of the county infirmary situated' in Ealls township, who were received into the infirmary from other townships, acquire, while in the infirmary, a right to vote in Ealls township ?

      It is conceded that if a panper he removed from the township in which he resides and has a legal settlement, against his will, to the county infirmary, he does not either lose his right to vote in the former, or gain a right to vote in the latter township.
    To enable a person to change his voting residence, two things must concur:
    1. He must intend to acquire a new residence.
    2. He must actually remove to the intended place.
    Neither the intention without the removal, nor the removal without the intention, avails anything. 75 Ohio L. 17, rule 7.
    It follows, that a person without the power to form the intention, and the liberty of person to carry the intention into execution, can not acquire a new residence.
    Has an inmate of a county infirmary both of these qualifications ?
    The laws of Ohio recognize two classes of paupers:
    1. Those requiring partial relief only. 78 Ohio L. 89, § 25. • '
    2. Those requiring full relief. 74 Ohio L. 32, § 24.
    The second class only can legally become inmates of the county infirmary. 74 Ohio L. 32, §§ 14, 15, and 24.
    Erom these sections of the law, it is evident that whenever it is, by the trustees and directors, determined that a man requires public support, he becomes subject to the officers of the law, and must go to the infirmary.
    It is not the act of the pauper in giving the notice required by the statute that puts the officers of the law in motion, as claimed by defendant. All that is required, is that “ complaint shall be made by some person having knowledge of the fact ” of the persons requiring public relief. Complaint by the alleged pauper is neither required nor contemplated by the statute.
    The trustees do not transmit a statement because someone has given notice or made complaint, but only “ if the trustee be of opinion that the person complained of is in a condition requiring public relief.” And “ if said directors are satisfied that said alleged pauper requires public relief, they shall forthwith direct,” etc. The will of the alleged pauper is a matter of no moment.
    If the person complained of is found to be in condition requiring public relief, willingly or unwillingly, he must go to the infirmary. His person is no less under the restraint of the law, if he be willing than if be be unwilling.
    "W e deny that the pauper, if put in the infirmary by compulsion, can determine to make the township in which the infirmary is located his permanent home, and thereby gain a right to vote therein.
    This would be changing a man’s residence by an act of the will, without the power or the right to remove his body.
    Such power, to “ make the infirmary his, home,” is limited to the one change. It is a power to make one change,, and to one place, and that place must be the infirmary.
    The power to choose or determine a residence implies the power to make any place a residence.

      ~We think the poor laws should receive such a construction as will enable the officers of the law to give effect to the benevolent intentions of the legislature.
    In some instances, the officers of the law are required to arrest paupers and remove them to their proper place. 73 Ohio L. 233, §§ 16, 17.
    The case of Freeport v. Board of Supervisors, 41 Ill. 495, is in point; and, see Ill. R. S., 1874, 758, § 33; Payne v. Town of Dunham, 29 Ill. 125; Opton v. Worthbridge, 15 Mass. 237; Reading v. Westport, 19 Conn. 561; Amherst v. Hollis, 9 N. H. 107; Winchenden v. Hatfield, 4 Mass. 124; Andover v. Canton, 13 Mass. 547; Woodstock v. Hartland, 21 Vt. 536; Manchester v. Rupert, 6 Vt. 291; Danville v. Putney, 6 Vt. 512.

      Gilbert D. Munson, also, for plaintiff in error:
    The question, in this case, must be determined under the acts constituting paupers. 73 Ohio L. 233; 74 Ohio L. 32, § 24; 75 Ohio L. 15, 16; and the constitution of Ohio, art. 5, § 1.
    It must be conceded that the provision of rule 7, of the act (75 Ohio L. 16), assumes the power or right of the voter to acquire a new residence.
    In other words, free-agency is assumed in the voter.
    It follows, that whenever the intention and power of removal can and do, at one and the same time, become coincident, then, and not until then, can a voter be said to have changed his residence — acquired a new one.
    Can these two things co-exist in the ease of a pauper ?
    Under the laws of Ohio, a pauper is not necessarily a person without property. 73 Ohio L. 240, 241, §§ 29, 31.
    Whether a person may or may not be a pauper, depends upon the directors, whose duty it is made, by the law, to determine the matter. 74 Ohio L. 32, § 24; 73 Ohio L. 239, § 25. '
    Then a pauper, under Ohio laws, is a person who has been “ found,” “ considered ” to be a pauper by those authorized by law to give him a legal status, styled pauper.
    The law makes no provision for a poor person voluntarily becoming a pauper, either by his own application, or compelling a finding to that end, by the directors, in his favor.
    But, assuming that a poor person may himself make the complaint, and desires to “ be found ” a pauper, and to become an inmate of the infirmary: He makes his application. Having thus applied, his volition in the premises ceases. It ends in his own township. After he makes complaint, whether he will or won’t go to the infirmary depends not on him. He has nothing further to do or say about it.
    Volition of mind is not enough. Two things are necessary: first, an intention to remove, and second, a removal. And, as stated, the latter presupposes or assumes the power or right to remove wherever the voter wills. These two things can never be coincident in the pauper; because, until he ceases to be a pauper, there is never a time when he has the right or power of changing his residence. His removal was not his free and voluntary removal (in view of the election laws) ; therefore it was not his removal, but rather a removal of him. The intent to remove must co-exist with the fact. They are two distinct requirements: he declares the intent; that is evidence of his possessing that intent, but it is not removal. .
    How then can he manipulate the removal by the officers into his own act ? Only by adoption sui juris. He can not furnish evidence of actual adoption.
    The intent is one thing, and evidence of intent is another. How can he furnish evidence .of a voluntary adoption of the removal until his liberty is restored ? Any declaration is evidence of intent. An intent to remove when he can, and the burden of proof is on him. The point seems narrowed to the free-will doctrine — we maintaining there is no free will where the body is constrained; the other side saying that if the mind runs the same way as the constraint of the body, there is no constraint; or, in other words, that it is a free, full choice, where there is but one. thing to choose.
    The following authorities are submitted: Guier v. O’Daniels, Am. L. C. 748; 1 Binney, 349 ; Woodstock v. Hartland, 21 Vt. 567; Danville v. Putney, 6 Vt. 518; Pawlet v. Rutland, Brayton (Vt.), 179; Dale v. Owen, 78 Ill. 181, and 41 Ill. 506, and cases there cited; Covode v. Foster, 2 Bartlett, 600; Taylor v. Reading, 2 Bartlett, 661; Monroe v. Jackson, 1 Bartlett, 98; Cranford v. Wilson, 4 Barbour S. C. (N. Y.), 504; Cadwalader v. Howell & Moore, 3 Harrison (18 N. J.), 138.

      M. M. Granger, with whom was John O’Neill and F. H. Southard, for defendant:
    As to what constitutes “ residence,” see Horton v. Horner, 16 Ohio, 147; Sink v. Reese, 19 Ohio St. 307; Renner v. Bennett, 21 Ohio St. 449.

      The admission of inmates to a county infirmary is regulated by statute.
    In all the legislation in this state on the subject, no authority is given to any official to coerce a pauper, who has a settlement in the county, to enter the infirmary. We find a “ complaint,” which may be made by “ some person ” (as well by the pauper as by anybody). This complaint makes it the duty of the township trustees'to visit the pauper, ascertain facts and report, in certain contingencies, to the infirmary directors. ■ These directors may “ direct their superintendent to receive the pauper,” and they are not to transport, but to “furnish transportation for” the pauper. And, lastly, the superintendent is to receive the pauper upon his (the pauper) “ producing to him (the superintendent) such an order or voucher as is provided for.”
    It is clear, therefore, not only that the statute has provided no mode of forcing a pauper to enter the infirmary against his own will, but that it has expressly recognized his right to enter or not, by leaving to him the operative function of producing the order or voucher.
    So as to an inmate’s stay in the infirmary. There is not one word in the statutes touching infirmaries and the poor, from end to end, even implying that an oificial can keep him there one moment longer than he is willing to st-aju There are rules and regulations of the infirmary, that the iumate must comply with, or he is subject to be discharged, but there is no power to keep. Benner v. Bennett, 21 Ohio St. 433.
    The mere fact that a pauper goes to the infirmary and stays there, raises no “presumption” that he intended to change his home. But if proof be made of the additional facts, to wit, that he there claimed and exercised rights belonging to him only in case he purposed to change his residence, and if he testifies that he did consider, regard, and hold that his home was at the infirmary, then, and in that case, the court ought to find that his residence is changed. It is, then, no longer a question of inferring- or presuming an intent from conduct that is equally consistent with an intent to change or an intent not to change, and is a case where the intent is positively proved.
    The Ohio legislature can say for how many months or days a voter must “reside” in his county or precinct before he can vote. But whatever “ l’eside ” meant in. 1851, when the constitution was adopted, it still means — no more — no less. And the general assembly can not say what he must do or omit to do, in order to change his residence ; nor can it in any way resti’ict his right to so change, so far as concerns his right to vote. Our legislature has said: “The mere intention to acquire a new residence, without the fact of removal, shall avail nothing; neither shall the fact of removal without the intention.” S. & S. 341.
    That statement is true, but it derives all the force that belongs to it because it is true, and not because it was enacted by our legislature. As to whether it is a valid enactment or not, is immaterial. What does it mean ?
    Its last clause means exactly what is expressed by those words, to wit: “Neither shall the fact of removal without the intention to acquire a new residence.” These two facts need not begin to exist at the same time. It is enough if they coexisted for the statutory number of days before the election. Nor is it necessary that the “fact of removal” should be the act of the voter. If an actual removal has occurred, it matters not how or by whom or with what intent it was made, it nevertheless constitutes “ the fact of removal.” Whenever, after such removal, the voter determines to recognize it, and to adopt his new “ locus” as his home, and he does so adopt it, from that moment his change of residence is complete, and from it the days must be computed.
    Before an act can be declared void because of “ duress,” it must appear that the act was forced by the duress. Even if the pauper be taken to an infirmary and retained there against his will, that does not deprive him of his right to his former residence. He can, in such case, regain that right, if he desires so to do. Whether he decides to surrender that right, or to retain it, can make no difference in his position under the poor laws. Neither those laws, nor the lawful proceedings of the authorities under them, are intended to in any way affect that right. Any decision he may make as to that right is his own. If duress be charged, he alone, or those claiming under him, can plead it; he or they alone can avoid his act. The state, which by its laws exerted all the force there is, if any, in the case, can not disfranchise him under pretense of protecting his free agency. The rule avoiding acts done, or contracts made, under duress, was made law for the protection of the victim of force. What name ought to be bestowed upon an attempt to deprive a man of his constitutional right to vote, by using against him a rule that was created solely for his protection, and for his sole use?
   Boynton, J.

The right of the contestant to the office of probate judge of Muskingum county depends on the solution of the question, whether the inmates of the county infirmary, located in Ealls township in that county, who, at the time they were received into the infirmary, were residents of other townships, and who voted in said Falls township at the October election of 1878, were, under the special finding of facts entitled to vote in that township.

The constitution provides, that “ every (white) male citizen of the United States, of the age of twenty-one year’s, who shall have been a resident of the state one year next preceding the election, and of the county, township, or ward in which he resides, such time as may be provided by law, shall have the qualifications of an elector, and be entitled to vote at all elections.” Article 5, § 1.

Section 4 of the same article provides, that the general assembly shall have power to exclude from the privilege of voting, or of being eligible to office, any pei’son convicted of bribery, perjury, or other infamous crime ; and, by section 6, it is provided, that no idiot or insane person, shall be entitled to the privileges of an elector.

These are the only provisions of the constitution that relate to the qualification of electors, and they confer on all persons having the requisite qualifications of sex, age, and residence, the right to vote at all elections, except idiots and insane persons, and such other persons as may have been denied or excluded from the privilege by reason of their conviction of some infamous crime.

Therefore, if not an idiot nor insane, and he has not been excluded from the privilege of voting for crime, the right of an inmate of a county infirmary to vote is as fully guaranteed and secured to him by the constitution as that of any other citizen. The question then comes to this : Is an inmate of a county infirmary, having his residence when received into the infirmary in a township other than the one in which the infirmary is situated, incapacitated from forming a purpose or intent to change his residence ?

While the question is not free from doubt, we incline to think he is not. The word “ residence,” as used in the constitution, has substantially the meaning of “habitation,” “ domicile,” or “ place of abode.” The law ascribes a domicile to eveiy person, and no person can be without one.

In Bell v. Kennedy, L. R. 1, H. L. 320, it was said by Lord Westbury, that domicile is the relation which the law creates between an individual and a particular locality or country. And by Judge Story, in his Commentary on the Conflict of Laws, that it is of three sorts :■ domicile of birth, domicile of choice, and that which results from the operation of law. § 46. Domicile of birth remains until another is chosen, or where a person is incapable of choosiug, until one results by operation of law. To acquire a new residence or domicile, where one is under no disability to choose, two things must concur — the fact of removal and an intention to remain. The old domicile is not lost or gone until the new one is acquired,facto et animo. It is not, however, necessary that the purpose to acquire a new residence should exist at the time of removal. It may be formed afterward. A residence may be acquired by one who has removed to a place for temporary purposes only, by a change of purpose, and an election of the new habitation or place of abode as his place of future domicile or home. Story’s Conflict of Laws, § 89. In such case the old residence would be gone, and the new one acquired from the point of time when the intention to adopt the new residence was determined upon and fixed. “In a strict legal sense, that is properly the domicile of a person where he has his true, fixed, permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning.” Ibid., § 41.

It is not, howmvcr, necessary that he should intend to remain there for all time. If he lives in a place, with the intention of remaining for an indefinite period of time, as a place of fixed present domicile, and not as a place of temporary establishment, or for mere transient objects, it is to all intents, and for all purposes, his residence. § 46. Bruce v. Bruce, 2 Bos. & Pull. N. 228; Sears v. City of Boston, 1 Met. 250. These' are well settled rules relating to the selection or change of residence, existing when the constitution was adopted, and consequently apply in all cases where a change of residence results from or depends upon choice. The question is, and must always remain, one of fact, often attended with much difficulty; but to be determined by the preponderance of evidence favoring one place as against another. Residence resulting from the operation of law supervenes upon a disability to make choice. Minors being incapable of acquiring a domicile, retain that of their parents. A married woman takes the domicile of her husband; an illegitimate child that of its mother. An insane person may take that of his guardian. Trustees of Jackson Tp. v. Trustees of Polk Tp., 19 Ohio St. 28. A person under confinement for crime can not adopt a new residence until discharged from imprisonment. Such disability is said to arise from the general principle that a person under the power and authority of another possesses no right, or is incapacitated, to choose a residence. Story’s Conflict of Laws, § 46. But this incapacity does not necessarily attach to the condition of an inmate of a county infirmary. That he is under a species of restraint there is no doubt. It is also true, that he can not exercise that freedom of choice that may be exercised by one lesa needy and helpless, and less affected by circumstances. But very many persons in indigent circumstances, living upon the bounty and charity of others, are, as respects their ability to form and execute the purpose to select a new residence, affected similarly to those who are inmates of an almshouse. The permanency of their residence must largely depend on the continuance of such charity.

Yet no one doubts the legal capacity of one so situated to change, his domicile at pleasure. Laws regulating relief for the poor, and prescribing the conditions on which it will be furnished, including the settlement necessary to enable one to obtain it, and those that regulate the right to vote, have no necessary relation. The words “settlement” and “ residence ”, are not necessarily of the same import. The former derives its meaning from the statute, while the force and effect of the latter are to be drawn from the sense in which the word “ resided ” is used in the constitution. It is provided by the constitution of many of the states, that no inmate of an almshouse or asylum shall acquire a residence there, while receiving support at the expense of the public. This inhibition evinces an understanding in such states, that, without such provision, the particular circumstances would not prevent the inmate from acquiiing a new residence at the place where the almshouse • or asylum was located. The inmate of an infirmary in this state is not restrained of his liberty, nor kept in the infirmary against his will. He is under no such restraint as prevents him from removing from the infirmary to any other place in the township, if he chooses to do so.

The court below specially found that each of the persons whose right to vote in Falls township is drawn in question, possessed the necessary qualifications to entitle them to vote therein, if they could, after becoming inmates of the infirmary, change their respective residences from other townships in said county to that township; and that while such inmates, they severally did adopt said Falls township as their permanent residence; and by such act of adoption and selection, and not otherwise, did change their residence to Falls township.

This, we think, they were competent to do. Persons may be, and often are, so needy and helpless as to make it reasonably certain that the remainder of their days will be spent in the infirmary; and when this is the case, the infirmary is to such persons, in the full sense of the term, their habitation or home. If the inmate is a voter, and has no family in another township, and has adopted the infirmary as his abode, looks upon and treats it as his home, and has been sufficiently long a resident, he is entitled to vote at all elections in the township wherein the infirmary is situated.

Judgment affirmed.


author: Gilmore, C. J.

text:
    Atcherly v. Dickinson.
    3. Section 23 of the code, as re-enacted in 1878, relates to the time within which an original action may be recommenced, or claims set up by the defendant in such an action may be reasserted, if either party “ fails otherwise than upon the meritsand has no application to proceedings in error.
    2. Where a proceeding in error was transferred to the supreme court commission, and by it dismissed for want of preparation as required by rule, and a motion was subsequently made before it to reinstate the proceeding, which was overruled, such action of the commission is final.
    Motion to dismiss proceedings in error to the District Court of Licking county.
    The judgment of which the plaintiffs in error (defendants below) complain, was entered against them, at the July term, 1874, of the District Court of Licking county. To obtain a reversal of the judgment so entered, the plaintiffs in error, in January, 1876, on leave being granted, filed a petition in error in this court. The cause was transferred to the supreme court commission for decision. When it was reached in its regular order on the docket, in November, 1878, it was “ dismissed, at the cost of the plaintiffs in error, for want of preparation as required by rule.” And it was ordered that a “ special mandate be sent to the court of common pleas to carry this order into execution.”
    Afterward the plaintiff's made a motion before the commission to reinstate the case on the docket. On the 18th of December, 1878, the motion was overruled by the commission, “ for the reason that the motion and proof do not disclose any ground for vacating the judgment of last term of this court dismissing the case under the rules.”
    On the 19th of January, 1879, the plaintiffs filed a petition in error in this court, as a matter of right under the present law, to reverse the judgment of the district court, relying on the same errors assigned in the first petition in error, upon which process has been issued and served on the defendant in error.
    The defendant iu error now moves the court to dismiss the proceeding in error so commenced.

      John D. Jones, for the motion.

      Smythe ‡ Sprague, contra.
   Gilmore, C. J.

1. The plaintiffs in error, through their counsel, claim that they are entitled to prosecute this proceeding in error by virtue of the provisions of section 18, title 1, division 2, chapter 2 of the code of 1878, which is substantially a re-enactment of section 23 of the original' code. The section reads as follows : “ If, in an action commenced in due time, a judgment for the plaintiff be reversed, or the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action has expired, at the date of such reversal or failure, the plaintiff . . . may commence a new action within one year after such date, and this provision shall apply to any claim asserted in any pleading by a defendant.”

The plaintiffs have misconceived the purpose and effect of this section. It is a part of the chapter of the code relating. to the “ time of commencing actions,” of which section 6 reads as follows : “ Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action accrues.” It is plain, from this, that the chapter relates exclusively to original actions, and the prescribed limitations apply only to the causes of such actions. In addition, the plaintiffs in error are not within the terms of section 18. The first clause of the section relates to the reversal of judgments for the plaintiff, or the failure of the plaintiff otherwise than on the merits. The plaintiffs in error were defendants in the original action, and hence they are not within the first clause of the section. The second clause of the section makes its provisions applicable to any claim asserted in any pleading by a defendant, i. e., any set-off or counterclaim which would have constituted a cause of actior. against the plaintiff that may he set up by the defendant. But the defendants set up no such claim in this case. The defense was a denial of liability.

It follows that section 18 has no application to proceedings in error, and the plaintiffs can claim nothing under it in this case.

2. There is, however, another objection to the plaintiffs in error further prosecuting this proceeding in error. It is that this proceeding in error was disposed of by the late supreme court commission. It was dismissed for want of preparation as required by rule, in November, 1878. Afterward, the plaintiffs in error moved the commission to set aside the order dismissing the proceeding, and to reinstate it on the docket; which motion was heard upon proofs, and overruled on the 18th of December, 1878.

The constitutional amendment, among other things, conferred upon the commission power “ to dispose of such part of the business on the dockets of the supreme court as shall by arrangement between said commission and said court be transferred to such commission, and said commission shall have like jurisdiction and power in respect to such business as are or may be vested in said court.” This proceeding in error had been transferred to the commission, and at the time the proceeding was dismissed and the motion to reinstate it was overruled, the commission had sole and exclusive jurisdiction over the cause, and its action in reference to it was final and conclusive as to all the parties to the proceeding.

The plaintiffs in error, therefore, had no right to recommence this proceeding in this court, and the motion to dismiss it must be sustained.

Judgment accordingly.