author: Kennon J.

text:
    Isaac Youmans v. Thomas Caldwell and Alexander Caldwell.
    "Where a lease for years is made of land, without any reservation in the lease itself of a growing crop, parol evidence may be introduced to show that the crop was growing on the land, at the time when the lease was made, and was treated and considered as personalty, and not intended to be convejred by the lease. In the sale of real estate in fee or for years, the growing crops may be considered by the parties as personal property, and so separated in contemplation of law as not to pass by the deed or lease. Baker v. Jordan, 3 Ohio St. 438, followed and approved.
    'Where a special plea of a former trial between the same parties, upon the same point sought to be litigated, is pleaded, and where it becomes necessary to introduce parol evidence, to show that the two causes of action were the same, the identity of the causes of action in the two cases, is a matter of fact for a jury, to be determined upon the evidence.
    When a motion to the court, to set aside the finding of a jury, or the court, upon such issue, because the finding was against the evidence, is overruled, the bill of exceptions must show what was the evidence upon which said finding was founded; otherwise, a court of error can not determine whether the court below erred or not. It is not sufficient to say that evidence was . given of such and such facts on the trial of the issue.
    ^Petition in error, to reverse a judgment of the district court ..in Licking county.
    The case is fully stated in the opinion of the court.

      Chas. Follett, for plaintiff in error.
    I. The parol testimony of reservation sbould not have been received. Nothing but a clear, subsequent, independent agreement could change the written lease; and parol testimony can not be .given to' change or vary a written contract, nor even to explain the ^understanding of the parties at the time of making it. Case v. Winship, 4 Blackf. 425; Zwillinger v. Webb, 9 West. Law Journal 310 (No. 7); Edwards v. Richards, Wright, 597; State v. Perry, Ib. 662; Morris v. Edwards, 1 Ohio, 189; Stone v. Vance, 6 Ib. 246 ; 1 Greenl. on Ev. 398, 275, 276.
    II. The court not only erred in admitting parol testimony to be given to prove title to the wheat, by reservation, as against the lease,. but the rule of res adjudicada forbade its introduction. Whether it sufficiently appears in the pleadings or not, that the former suit in. trespass was determined upon the merits, can make no difference, as it distinctly appears by the testimony set out in the bill of exceptions, that the question of title by reservation, and no other, was given to the jury and insisted upon, to entitle the plaintiffs to a recovery therein, and a verdict and judgment against the plaintiff, as the record shows. Gardner v. Buckbee, 3 Cow. 120; Burt v. Sternburgh, 4 Cow. 559; Bouchand, Ex. of Brunel v. Lewis, 3 Denio, 238; 1 Greenl. on Ev., sec. 533; Doty v. Brown, 4 Comst. 71.
    III. It can not be said, that the title to the wheat was not, or • could not be, called in question in the action of trespass, or that trespass was not the proper action. Either the wheat belonged to the ■ plaintiff, or did not; if the former, then the defendant’s *possession was forcible, and he a trespasser in entering and cutting' down the same, and the first taking wrongful; and trespass was the proper remedy. 7 Ohio (part 2), 133; 10 Johns. 369; 7 Ib. 140; 17 Ib. 116; 5 Mass. 283; 284; 3 Hill, 282. And, indeed, if the defendant had entered and ousted the owner of said field of wheat, and continued in possession of the premises, trespass quare clausum faegit is the only remedy. But if the entry was lawful, the property of the wheat was in the defendant. De Mott and Billson v. Hagerman, 8 Cow. 220; 2 Wheat. Selw. 1195, notes B and C; Brown v. Caldwell, 10 Serg. & R. 114; Mather v. Trinity Church, 3 Ib. 509.

      Smythe & Sprague, for defendants in error.
    I. The court will look in vain for any order in this case, making the bill of exceptions, or what purports to be a bill of exceptions, part of the record. The bill of exceptions can not, therefore, be considered. Baldwin v. State, 6 Ohio, 15; Acheson et al. v. Western Reserve Bank, 8 Ohio, 117.
    II. As to the admission of parol evidence to explain or vary the written contract, counsel for defendants in error do not deem it necessary to controvert any of the principles or authorities referred -to in the argument of plaintiff’s counsel; they simply deny that ;any such thing was done. The writing produced by plaintiff in -error, and called a contract, was .disregarded by the court below, .for two reasons—
    1. It fully appeared, and is stated in the bill of exceptions, that -the plaintiffs below were minors at the time of signing the writing, . and therefore were not bound by it. As to them it was no contract, ;and, so far as the matter in controversy was concerned, they had ■repudiated it by bringing their action.
    2. The writing did not purport upon its face to be a contract inter partes, but simply the contract of Youmans. True, it was signed by the others; but its stipulations are all in the singular number, and point wholly and exclusively to Youmans. There *is in the •writing no stipulation, engagement, or undertaking on the part of ■defendants in error; the mere act of signing, in such circumstances, ■would not make it the whole contract of all the parties, so as to ■ exclude reservations made on behalf of the defendants in error.
    III. Whether the former judgment would be a bar or not, de'pended entirely upon the identity of the subject decided in the former action, with the controversy in this; a question of fact, ■ depending not on the record of the former judgment alone, but upon that with the other testimony in the case. The finding of the -court of common pleas on this subject is that of a fact, and no error of law is or can be predicated upon it. The court of error can not review and reverse this finding of the fact, especially when the bill ■of exceptions does not pretend to set out all the evidence. It seems to be well settled, that such a thing can not be done. 14 Ohio, 586.

      Mr. Follett, in reply:
    I. The bill of exceptions is part of the record. The case in 6 -Ohio has no application; that in 8 Ohio does not go to the extent ■claimed by defendants in error; it only decides what is usual or ,-good practice. The case last named has not the slightest intimation that where a bill of exception has been made a part of the record, it .is to be disregarded for want of an express order making it such. But, even if that decision has the supposed extent, the-language of the statute of 1845,2 Curw. 1140, under which the bill of exceptions in this case was made, is imperative, upon the request of the party, ¿and no order is necessary for that purpose. If not made a part of the record, the consequences follow which are shown in 6 and 8 ■Ohio ; but once of record, the court can not disregard it.
    II. Upon the question of infancy the defendants are estopped ’This lease was not void, but voidable only; and although they might have re-entered and ousted the plaintiff, until they did that ■*or put an end to the term in some other way, they could not take the crops. Their tenant was permitted to enter and occupy under the lease, and he paid rent; the crops were his own, with which his landlord had nothing to do. Infancy is not allowed to protect fraudulent acts. 3 Kent, 239; Kitchen v. Lee, 11 Paige, 107; Badger v. Phinney, 15 Mass. 179; Roberts v. Wiggin, 1 N. H. 73; Roof v. Stafford, 7 Cow. 179; Hamblett v. Hamblett, 6 N. H. 339 ; Smith v. Evans, 5 Humph. 70; Kitchen v. Lee, N. Y. Ch. 3; N. Y. Legal Obs. 160; Zouch v. Parsons, 3 Bur. 1794; 2 Kent, 236 ; 1 Johns. Cas. 127; 5 Yerg. 41; Tucker et al. v. Moreland, 10 Pet. (U. S.) 66; Baylis v. Lumley, 3 Maule & Sel. 477 ; Lesse of Drake and wife v. Ramsey et al., 5 Ohio, 251; 14 Johns. 124; 4 Day, 51.
    III. Any statement in writing containing the agreement between the parties, and accepted and adopted by them, is the best and only evidence of the contract, even although not signed by the parties at ;all. But where, as in this case, the statement is signed and sealed by all the parties to the contract, in duplicate, there can be no more binding agreement. Patchin v. Swift, 6 Washb. 292.
    IY. All the testimony given on the trial is set out in the bill of •exceptions, and counsel for plaintiff in error think the language of the bill sufficiently shows that fact, to wit :■ “ The plaintiffs offered no further evidence in chief, but rested their case,” etc. “And the •defendant offered no other or further evidence in this ease,” etc. But this is not material. The bill sets out the testimony with suffi•cient clearness to enable the court to decide all that is necessary in •determining the cause.

      This case was argued before the decision of Baker v. Jordan.

   Kennon J.

The Caldwells had brought an action of replevin to recover some wheat which had been cut down and put in shock by Youmans, upon a tract of land leased to Youmans by the Caldwells, at the yearly rent of two hundred dollars and taxqs. The wheat in ■controversy had been sown, and was growing on the land, at the time the lease was made to Youmans. There was *about fifteen or sixteen acres of the wheat, making about 225 or 230 ■bushels. Youmans claimed the wheat by virtue of his lease, and the Caldwells claimed that it belonged to them, and was reserved'; when the lease was executed. The lease contained no express reservation of the wheat.

The question of title to the wheat was, therefore, the matter in controversy. The Caldwells recovered in the court of common pleas, and upon writ of error, the district court affirmed the judgment of the common pleas.

This petition was filed to reverse the judgment of the district-court.

Upon the trial of the case in the court of common pleas, the Caldwells gave in evidence their title to the land upon which the wheat grow, and rested. Youmans gave in evidence his lease to the land, bearing date prior to the time of cutting the wheat, and that he-had gone into possession of the farm on the first of April preceding-the harvest at which the wheat was cut. The Caldwells then gave evidence that the wheat was growing on the ground when the lease was made, and offered to prove that the wheat was reserved when they made the lease. To this evidence Youmans objected, but the court overruled the objection and admitted the evidence. To this-ruling of the court Youmans excepted, and procured his bill of exceptions to be signed by the court. Youmans had filed a special plea, setting forth that before the suit was brought, the Caldwellshad brought an action of trespass for the identical cause of action for which the action of replevin had been prosecuted; that, upon the trial of the trespass, judgment had been rendered against the-said Caldwells, and that the judgment so rendered was still in full force.' The trial of the trespass was before a justice of the peace.

On the trial of the action of replevin in the common pleas, the issues were submitted to the court; one of which issues was, whether-the cause of action was the same in the trespass and replevin suits.

*To support the issue on the part of Youmans, he gave in. evidence the transcript of the judgment before the justice, which of itself did not show that the same points wore in issue in both, cases; but Youmans offered to the court parol evidence to show that the identical same matter tried before the justice and then determined, was thqt in issue in the action of replevin. The court, however, found that the said supposed action of trespass in said plea mentioned, was not for the same identical cause of action as in said declaration mentioned. The finding is in these words: “And the court do further find, that the said supposed action of trespass in said defendant’s plea mentioned, was not for the same identical cause of action as in said declaration mentioned, and the judgment in said action of trespass mentioned, was not- upon, or for the same cause of action as in said declaration mentioned.”

Judgment was rendered for the plaintiffs, and the defendant moved for a new trial for the reasons: 1. That the court erred in overruling the objection made by the defendant to the evidence offered by the plaintiffs to vary or explain the written agreement; 2, In finding that the plaintiffs were not barred by said action of trespass so decided against them; and, 3. The court erred in not non-suiting the plaintiffs.

This motion was overruled by the court of common pleas. To-this opinion of the court of common pleas the defendant also excepted.

The bill of exceptions, among other things, states that the defendant gave evidence ” of certain facts (named in the bill of exceptions) which, if satisfactorily proved to the court, might have been a bar to the plaintiffs’ right of recovery.

The questions, therefore, presented on this record are : 1. Should the court have nonsuited the plaintiffs ? 2. Did the court err in not finding that the facts proved showed that the action of trespass- and replevin, were for the same identical cause of action ? 3. Did the court err in admitting the plaintiffs to prove that the-*wheat was sown before the lease was made, and that the plaintiffs, by parol, reserved the wheat to themselves?

As to the first question, it can not be seriously claimed that the plaintiffs, after proving title in themselves to the land, and that the-wheat grew upon that land, ought to have been nonsuited. The plaintiffs made a prima facie case for recovery, and therefore, the court did not err in refusing to nonsuit them.

As to the second question, we are, from the bill of exceptions, unable to say whether the court ought to have found the facts differently or not. Had the finding been by a jury, negativing the facts-in the special plea, and a motion had been made to the coui’t to set aside the verdict because it was against the evidence, and the court, had overruled that motion, a court of error could not have said that the court erred, unless all the evidence which the jury had before them, had been fully set out, that we might judge whether the-verdict was decidedly against the weight of the evidence. It would not do to that evidence was given to the jury of such, facts. The jury may or may not have believed the evidence, and in this respect it makes no difference whether the issue was found by the jury or by the court. If all the testimony had been set out, or if it appeared that the facts outside of the justice’s record had been proved, showing that it was for the identical same cause of action as that on trial, a different case would have been presented; but when the hill of exceptions only shows that evidence was given to the court of these facts, and the court expressly find that the facts stated in the plea of estoppel are not true, there is no ground for this court to say that the parol evidence proved that the two causes of action were the same. We are therefore of opinion that in this particular, the district court did not err in refusing to reverse the judgment of the common pleas.

The remaining is a very important question, and one which this court, at its present term, fully considered in the case of Baker v. Jordan. In that case, Jordan purchased of Baker a *farm; Baker, a few days after the parol contract for the sale of the farm, executed a deed to Baker for the land, without any reservation of the crops. There was, at the time of the execution of the deed, about seventy acres of corn growing on the land, which, by express agreement, was to belong to the grantor, and not the grantee in the deed ; it was by parol reserved, and the question was whether that fact could be proved in an action by the grantor for the corn; or whether such proof would not vary or contradict the deed itself. In that case the court held that such evidence was admissible. A growing crop may or may not be a part of the realty. It may be sold without writing, and the title pass; it may be levied upon by execution as personal property, and in certain cases passes to the administrator.

By the deed the realty passed, and prima facie the corn was realty; if so, it passed; but if, before the execution of the deed, the parties themselves so separated the land from the corn as to constitute it personalty, it would not pass by the deed; and therefore full effect was given to the deed without including the corn. 3 Ohio St. 438.

In the case now before this court we regard the paper given in evidence by Youmans, as a lease creating in him a lien for years, an •interest or estate in the land itself, which could not be created or pass without writing. The wheat would pass by a mere parol contract, and the lessee by the lease acquired, such an interest in the •land by the lease as would prima facie have passed to him this growing wheat; but it passed only because it might be and generally is considered as a part of the realty. But if the parties, by agreement before or at the time of making the lease, reserved the wheat, that agreement had the effect, as between the- lessors and the lessee, to convert the wheat into personalty; and therefore the wheat did not, in fact, pass by the lease, so that the lease may have its full effect in passing the realty without passing the wheat. We hold the effect of reserving the growing crop to be, that the parties themselves have, without writing, agreed to convert it *into personalty, and it so remains, and does not therefore pass by the deed creating an interest in the land. We are, therefore, of opinion that the district court did not err in refusing to reverse the judgment of the common pleas.

The judgment of the district court affirmed.


source: Caselaw Access Project

author: Ranney, J.

license: Public Domain

text:
    The City of Dayton v. Horace Pease.
    Municipal corporations are liable for injuries to third persons, resulting from tbe negligence of subordinate officers or agents acting under their authority and direction, in the construction of public improvements belonging to such corporations^
    In such cases, the maxim respondaei superior, properly applies, in the same manner and to the same extent, as in its application to the liabilities of private individuals.
    But where such agent or officer, although appointed by the corporation, performs duties for or between individuals, in which the corporation has no interest, no such liability arises, and the officer alone is responsible.
    The damages to be recovered in such action, must be the immediate, natural, and necessary result of the negligence or want of skill complained of.
    Error to the court of common pleas of Montgomery county, reserved in the district court for decision here. ^
    The original proceeding was an action on the case for consequential damages to the mill of Horace Pease, defendant in error. It was commenced before a justice of the peace. Judgment was rendered by him in favor of Pease, and an appeal taken to the Montgomery common pleas by the city. At the November term, 1852, the demurrer was withdrawn as to the first count of the declaration and overruled as to the second. On issue joined at the-same term, a special verdict was rendered *by the jury. On error to the district court for Montgomery county, the case was-reserved to this court for decision.
    The declaration contains two counts. The first sets forth that, the plaintiff was possessed (in October, 1851) of a certain mill in Dayton, on the Miami canal, and a certain water-power of so many cubic feet per minute; and the right to flow the same through the-canal to his mill, and from and below the same, through the said canal. That the defendant, on the 30th of October, 1851, etc., etc.,. “ wrongfully and injuriously ” erected an arched stone bridge across the canal below said mill, and in the city, and constructed, the same “ so inartificially ” that it fell into the canal and dammed up the water, and thereby obstructed and prevented the plaintiff' from the use of his mill, and from making divers profits,.etc., etc.
    The second count differs from the first, only, in alleging that the-defendant “ wrongfully and injuriously, by certain contractors for that purpose by the defendant employed,” erected the bridge in the first count mentioned.
    At the trial, the plaintiff so amended his declaration as to conform it to the proof of drawing off the water from the canal above-the mill, as set forth in specification number five (5) of the special verdict.
    The plea is the general issue — “ Not guilty.”
    The jury, being instructed that they might find a special verdict and assess the damages sustained by the plaintiff, did find—
    1. That the mill mentioned in the declaration was the mill of the plaintiff; that he'owned and used the water-power, and had the-right to flow water from said mill through the Miami canal.
    2. That the city of Dayton, by order of the common council, did contract with certain contractors to erect a stone bridge over said canal, as by law the city had a right and was bound to do, below said mill, on Warren street, under the supervision of the city engineer, and according to a plan to be furnished by him; *that. said contractors did erect such bridge, in pursuance of a plan afterward furnished by said engineer.
    3. That on the afternoon of the 30th of October, 1851, said bridge-fell into the canal.
    4. That the fall thereof was owing to defect and inartifi.ciality in the plan of the bridge, as furnished by said engineer; which plan ■was defective and inartificial through, the negligence and unskillfulness in devising the same, of the said engineer, and was such that the bridge could not stand.
    5. That, by reason of the stone and earth falling into the canal, the water was dammed and backed up on the wheels of plaintiff’s ■said mill, which stopped its working for a period of seven hours; .and that by reason of said fall of stone and earth, and for the purpose of removing the same, it became necessary to draw the water ■off the level of the canal above the mill, whereby it was stopped for a period of twenty-three hours longer.
    6. That immediately after the fall of said bridge, on the same •day, the city of Dayton proposed to remove from the canal the ■obstruction to the same occasioned thereby; but that the removal thereof was at once taken off their hands by the superintendent of repairs on that line of said canal, who forthwith took charge of the same, and proceeded to take the necessary steps to remove said 'Obstruction.
    7. That directly after the fall of the bridge — on the same day— the said superintendent of repairs directed the water in the level .above the mill to be drawn off, for the purpose of enabling him to remove the said obstruction from out the canal, and that the water was so drawn off; whereby the mill of the plaintiff was stopped for the period of twenty-three hours, as aforesaid.
    8. That said bridge was upon Warren street, a public highway ¿and street in Dayton, which was originally part of a state road, laid out and established as such road by the county commissioners, in 1806 or 1807, and which became one of the streets of the town ■of Dayton in 1812 or 1813; that there was at both these *periods, and until the construction of the said canal, a swamp or marsh directly on the line where the canal now runs; and a bridge ■of logs at the point on said road or street, where said stone bridge was erected.
    9. That the Miami canal was constructed about the year 1829, .and a wooden bridge erected over the same pursuant to law, which bridge fell down and was removed some time in the spring of 1851; and that the stone bridge was erected at the same point on the ■canal where the old bridge stood.
    And if the court should be of opinion that on these several facts thus found, the law was with the plaintiff, then, and in that case, ■the plaintiff’s damage to be assessed at the sum of sixteen dollars and fifty cents, by reason of the damming and backing up of the water upon the wheels of the plaintiff’s mill as aforesaid; and the further sum of fifty-four dollars and seventy-two cents, by reason of the water having been drawn off from the level above the mill of the plaintiff as aforesaid. Rut if the law were with the defendant, then, and in that case, the defendant to go hence without day, and recover from the plaintiff its costs, taxed at-dollars and -cents.
    And thereupon the parties, by their attorneys, agreed in open, court, that, in pronouncing judgment upon said findings of, the jury, the court should also look to, consider, and take judicial notice of the-charter of the said city of Dayton, and all acts of the legislatureamendatory thereto, or conferring power upon and regulating the duties and liabilities of the city and its officers, and of all the ordinances and minutes of the proceedings of the city council, in so far as they severally relate in any way to the matters in controversy— the same as though each and all were parts of the genéral laws of the state, or had been respectively and severally pleaded and given in evidence to the court and jury.
    * Copies of the proceedings of the city council, referred to in the-above entry, and agreed upon by counsel of loth parties.

    January 11, 1851.- — D. H. Morrison was then elected city engineer for the current year.
    June 5,1851. — Resolution, by Mr. Kenney, that the marshal, in-conjunction with the city engineer, have the bridge on "Warren street repaired, and that the work be let to the lowest bidder for-cash.
    June 20,1851. — Mr. Kenney, from the committee to whom was referred the matter of repairing Warren street bridge across the-canal, reported that said bridge since the last meeting has fallen-down, and offered a resolution that the city engineer be required to make an estimate of a stone bridge of rough masonry, also of a wooden bridge, and that he advertise for proposals for building the-same. Report accepted, and resolution adopted.
    August 8,1851. — Resolution, by Mr. Kenney, that the bids for building a stone bridge across the canal at Warren street be referred to a committee of two, in connection with the city engineer, and that they be authorized to contract for the building of said bridge,, with the lowest responsible bidder. Laid over.
    August 11, 1851. — Mr. Comly offered the following as an amendment to Mr. Kenney’s resolution : That the committee on the Warren street bridge report to council the gross amount of each bid for’ the wok on said bridge, before the contract for the same is awarded. Amendment adopted, and the resolution as amended passed. Committee — Messrs. Boren, Worman, and Beichler.
    August 18,1851. — The city engineer reported concerning the several amounts of bids for building Warren street stone bridge. On motion, the work, was awarded to Marcus Bosler, exclusive of embankment, for $1,155.79.
    November 17,1851. — Resolution, by Mr. Kenney, that the committee on Warren street bridge report to couneil the full particulars *in reference to the contract and full amount paid on said bridge; also, that the city engineer furnish statement of the reason why said bridge did not stand, and where the fault lies in the premises.. Committee — Boren, Beichler, and Worman.
    Horace Pease presented claim for damages sustained by him in the stoppage of his mill, as he alleges, by reason of the falling of Warren street bridge into the canal. Ordered that said bill be returned to Mr. Pease.
    December 15,1851. — Mr. Bosler submitted statement concerning the falling of the Warren street stone bridge. Laid over till next meeting.
    February 6,1852. — Committee on Warren street bridge reported progress, and asked further time. Granted.
    March 3, 1852. — Communication from Wm. Trebein, notifying council to remove stone and rubbish accumulated on the towing-path on the canal, at the Warren street crossing, was then read. Mr. Love moved that the matter be referred to the bridge committee, to report at next meeting. Carried.
    May 18, 1852. — Resolution, by Mr. Kenney, that the trustees of the Fourth ward be authorized to have the stone abutments of Warren street bridge built preparatory to the erection of a wooden rafter bridge; provided, the building of said abutments does not cost to exceed $100; and provided further, that the canal commissioners appropriate sufficient to build said bridge. Adopted.

      Tfte city charter and ordinances. — Counsel bring also into court and file with brief, a printed volume, containing the charter and ordinances of the city of Dayton; and refer therein especially:
    1. To the act of the legislature creating the office of “ city engineer,” requiring the city council to appoint, or provide for his election by the people, and fixing the term of office. Charter, etc., pp. 9,10.
    *2. To the ordinance prescribing his duties, requiring oath of office, fixing a salary, etc. Charter, etc., pp. 48,49.

      C. L. Vallandigham made the following points in argument for plaintiff in error:
    1. (1.) A mere private corporation, exercising mere private and strictly corporate powers, is liable for injuries occasioned by or resulting from the exercises of such powers, in like manner as an individual; but
    (2.) A mere private corporation, exercising public powers — powers belonging to and usually exercised by government (e. g. the case of turnpikes, canal, railroad companies, etc.) — is not liable, either in England, or in most of the states of this Union, or under the federal government, for injuries resulting from or occasioned by the exercise of such powers, except it act itself illegally (exceeding its jurisdiction) or wantonly, maliciously, or negligently in their exercise. 2 Broom’s Maxims, 373-389 ; Story on Agency, sec. 319, et seq.; 1 Am. Law Mag. 66; Plate Glass Company v. Meredith, 4 Term, 794; Boulton v. Crowther, 2 B. & C. 703 (9 Eng. C. L. 227) ; Sutton v. Clarke, 6 Taunt. 29 (1 Eng. C. L. 298) ; Hall v. Smith et al., 2 Bing. 156 (9 Eng. C. L. 357) ; Harris et ux. v. Baker, 4 M. S. 27 ; Duncan v. Findlater, 6 Clark & Fin. 903 ; The Queen v. Eastern Counties Railway, 1 Gale & Dav. 589 ; Callender v. Marsh, 1 Pick. 418; Steel v. The West Lock Nav. Co., 2 Johns. 286 ; Parker v. The Cuttler Milldam Co., 7 Shep. 353; Lansing v. Smith, 8 Cow. 146. See also the earlier Ohio cases.
    (3.) And so even in the case of a private individual, exercising a like power, by special grant. Calking v. Baldwin, 4 Wend. 667.
    Note. — Some of the other cases above cited, are eases where individuals exercised the powers, but assuredly there can be no sufficient reason for between acts dividual officer or body of ^individual officers, and the same acts done for same purposes, by a corporation — especially a muñid~

      pal corporation. And see 1 H. & W. Am. Lead. Cases, 645 ; 3 Hill, 531; Story on Agency, sec. 321. ’
    II. A public and political or quasi, corporation proper — “ a body politic and corporate,” in tbe language of the Ohio statutes (Swan’s Stat. 205, sec. 7; 827, sec. 7; 949, sec. 1), e. g. a county or township — is not liable for injuries occasioned by or resulting from the lawful exercise of its lawful powers.
    Note. — “ A city is in some respects a county.” Stetson v. Faxon, 19 Pick. 152.
    III. (1.) Though a municipal corporation, exorcising mere private :and strictly corporate powers, and for its own pleasure, benefit, and -emolument, is liable for injuries occasioned by or resulting from thg ■exercise of such powers, in cases where the acts producing the injuries are directly done or commanded by itself, in like manner as an individual.
    (2.) Yet it is not in like case liable where the powers exercised are public and political and quasi corporate, and not for its own ex■clusive benefit and emolument, unless it exercise such powers illegally or maliciously, or occasion injury in the exercise thereof by its own direct negligence.
    As above, especially Story on Agency, sec. 319, et seq.; also, 1 Hare & Wal. Amer. Lead. Cas. 645; Fowler v. The Com. Council of Alexandria, 3 Pet. 398; Humes v. The Mayor, etc., 1 Humph. 403; Bailey v. New York, 3 Hill, 531; New York v. Bailey, 2 Denio, 434.
    Note. — As to the Ohio cases bearing on this point, the counsel fop plaintiff in error maintains that, though the latter do not profess to ■overrule the earlier, and indeed deny any such purpose, there is nevertheless a conflict, direct and irreconcilable, between them; and that these later cases are unsupported by any authorities, English or American, and are manifestly against principle. And, further, that they do not at all decide the question involved in the case at bar. (See fifth proposition.)
    IY. A municipal corporation is not liable, any more than up individual would be, for injuries maliciously or wantonly committed *by its servants, the maxim “respondeat superior" not here-applying.
    V. (1.) Though municipal corporations are liable — like any other public officer — in all cases, for injuries resulting from their own direct negligence and carelessness, in even the legal exercise of as well public as mere private and strictly corporate powers:
    (2.) Yet, when exercising lawfully, even mere private and strictly corporate powers, they are not liable, even in Ohio, certainly not elsewhere, for injuries resulting purely from the negligence or unskillfulness of their officers in executing the acts ordered to be done; unless, indeed, the person executing the act, stand in the relation of a mere private servant or deputy.

    (3.) Nor, a multo fortiori, are they in a like ease liable, where the powers exercised are of a public and political or quasi corporate kind, and not employed for the mere private pleasure, benefit, or emolument of the corporation, where they act as public officers,, and not as mere corporators. 1 Hare & Wal. Amer. Lead. Cas. 645; Paley on Agency, 300; Story on Agency, secs. 319-457; Hall v. Smith et al., 9 Eng. C. L. 357; Harris and wife v. Baker, 4 M. S. 27; Martin v. Mayor, etc., of Brooklyn, 1 Hill, 545 ; Bailey v. New York, 3 Hill, 530; The Mayor, etc., of New York v. Furze, 3 Hill, 612; Same v. Bailey, 2 Denio, 434. And see Connell v. Voorhees, 13 Ohio, 523, with the comments in 1 Hare & Wal. 645.
    Note. — The counsel for the plaintiff in error maintains that this proposition puts the case at bar — if the facts bring it within the proposition — beyond the cases decided in 10, 15, and 18 Ohio.
    Applying these propositions to the case at bar, the- counsel for the plaintiff in error further argues:
    I. That the building of bridges is, from its nature, the exercise of a public and political, and not a mere and strictly corporate power.
    *Note. — It was so regarded by both ancient and modern governments. part necessitas, attaching old to every man’s estate, to wit: Expeditio contra hostem; arcium constructio; pontium reparatio. So also at Rome, no man was exempt, from the- duty — nullum genus hominum, nulliusque dignitatis ac venerationis mentis. And in Ohio it devolves, except in special cases, upon counties and townships.

      II. That the city of Dayton, in building bridges, acts, under our-statutes, as a public officer, being substituted for the county commissioners and township trustees, and not in the exercise of a mere and' usual corporate franchise. Swan’s Stat. of ’41, p. 165, sec. 8; 177, sec. 15; 206, sec. 10; 808, secs. 70, 71; 810, sec. 74; 811, sec. 79; 813, secs. 87, 90: and compare city charter, p. 27, sec. 2.
    Note. — This was an ancient bridge, on an ancient state road. It. was not a toll-bridge, nor built for mere pleasure, ornament, emolument, or benefit of the city, but being a canal bridge, the city was■■ bound to build it. Swan’s Stat. 165, see. 8, and 177, sec. 15; and special verdict, specification number 2. Nor, further, was the city using and improving its own property, nor property of which it had'the control. It belonged to the state.
    III. That the city having thus the right, and being bound to-build the bridge, did not, in bulding it, act illegally or exceed its-jurisdiction. Nor yet did it act maliciously.
    Note. — The injury complained of was not caused by the doing of' the act ordered by the city, to wit: the building of the bridge; nor-did it even result consequentially (strictly speaking) from the building, but the/aZZ of the bridge. Nor yet was it occasioned by, or-result from negligence or unskillfulness in, the city itself (as if, e. g., the city council had itself devised the plan), but from the fall of the-bridge, which fall was occasioned by the negligence and unskillfulness, or mistake rather, of the city engineer; neither the fall nor' negligence being ordered, countenanced or contemplated by the city.
    And this consideration, especially, distinguishes this from every and all the cases where cities have been held liable.
    IY. The city engineer is a public ministerial officer of the municipality, and not a mere private servant, employe, or deputy thereof;, but bearing a relation to the city similar to that which the county surveyor sustains to the county. Ante, p. 4; and see Knight v. Fox & Henderson, 1 L. & Eq. 477.
    *Note 1. — The case of a ship-master compellable to take a pilot, for whose negligence he is not liable, is not without analogy. Story on Agency, sec. 456a.
    Note 2. — The fact that the city appoints the engineer, does not. affect the question. Paley on Agency, 300, note p; Canterbury v. The Attorney-General, 1 Phil. 306; Lane v. Cotton, 1 Salk. 17, and 1 Hill 545, ut supra. See also the case of a stage-driver appointed ¡by the mail-contractor, Connell v. Voorhees, 13 Ohio, 523.
    Y. The argument by analogy and ab inconvenienti, applies here with peculiar force, since the city must be liable for all the mistakes .and negligences of all its other officers also — its assessors, weighers, measurei’s, marshals, market-masters, health officers, fire-wardens, •city jailer, supervisors, night watch, etc., etc., throughout the list.
    YI. That as to the loss occasioned to the defendant in error, by ■the drawing off the water in the level above his mill (which was the .act of the superintendent of repairs on the canal), the city is clearly not liable, even aside from the principles hereinbefore noted; be•cause, although the drawing off the water was brought about by the building and subsequent fall of the bridge, these were only the remote cause of the loss to the defendant in error — quite too remote to be the subject of an action; the proximate cause was the drawing •off the water, by one in nowise the agent or employe of the city.

      Summary. — I. That in building the bridge in question, th® city of Dayton acted as a public officer of the state, lawfully discharging her public duties in like manner as a county commissioner or town•.ship trustee in a like case.
    II. That a public officer, acting in the lawful discharge of his •public duties, is not responsible for the negligence or unskillfulness -of those whom he is obliged to employ as public, though subordinate, •officers under him.
    III. That the city engineer of Dayton is such public, though ^subordinate, officer, acting in a public capacity, and not a mere private service.
    IY. And that, therefore, the city is not liable for his negligence <sr want of skill.

      Haynes & Howard, for defendant in error:
    I. Municipal corporations are liable, like individuals, for injuries •done by them, though the act be not beyond their lawful powers. 'They are created to enable a body of people to act, as an individual •could, for the convenience and profit of all; sue and be sued, and, generally, to carry into effect any object of interest to those who belong to it. If the property of any one must be taken for the benefit of all, a fair compensation must be made to him in money It is no less a duty to make good a loss resulting from their acts— 0 consequential damage. This case is stronger than the case of Rhodes v. Cleveland, 10 Ohio, 159.
    Under this head, counsel cite also Smith v. Cincinnati, 4 Ohio, 514; McComb v. Akron, 15 Ib. 474; Akron v. McComb, 18 Ib. 229.
    II. There is no conflict between these and the earlier Ohio cases. In Scovill v. Giddings, and Hickox v. Cleveland, the points could' not arise. In the first case, the suit was against agents of the corporation for doing what the corporation might legally do, and had. ordered them to do: the law authorized the acts, and the corporation, not the agents, was liable for the injury. In Hickox v. Cleveland, there was a special provision in the law‘providing for the-assessment of damages. "When that is the ease, the party must resort to the remedy which is given him.
    III. Counsel also rely on the following American cases: Thayer v. Boston, 14 Pick. 115; Stetson v. Faxon, Ib. 141; Baron et al. v. Baltimore, 2 Amer. Jur. 203; — cited and approved in 18 Ohio, 233. Also, Bailey v. New York, 3 Hill, 531; New York v. Bailey, 2 Denio, 434. The English cases cited by ^plaintiff in error, can only be sustained on the ground, that the defendants were independent officers of the British government, discharging their-duties without fault; the government being the superior, the rule, respondeat superior, did not apply.
    IY. Under the ordinance for the appointment of a city engineer,, the counsel did not comply with their whole duty in the matter. The ordinance is as follows :
    “ Sec. 1. The city council of Dayton ordain, that the said city council shall annually appoint some suitable and competent person, to the office of city engineer and surveyor, who shall hold his said office for one year, and until his successor shall be appointed and qualified; and before entering upon the duties of his office, said city engineer and surveyor shall take an oath or affirmation to-faithfully and impartially discharge the duties of his said office.

      “ Sec. 2. It shall be the duty of said city engineer and surveyor, when called upon by the city council, or any committee thereof, to-make all surveys of the streets, lanes, alleys, sidewalks, and public roads in said city; and to execute plats, plans, draughts, and statements of the same, and to calculate and ascertain the proper and necessary grade and level of all of said streets, sidewalks, lanes,, alleys, and public roads, and execute profiles, delineations, and. ■■draughts of the same. All of -which surveys, grades, levels, profiles, delineations, and draughts, said city engineer and surveyor shall deliver over to the city clerk and recorder as soon as prepared, who shall carefully file away and -preserve the same in his office. And said city engineer and surveyor shall, from time to time, dis■chax-ge such other official duties as the city council, by ordinance or resolution, shall direct; for all which he shall receive such compensation as the city council shall determine.”
    Under this ordinance, the engineer is simply to dx'aw plans, and .hand them to the city clerk, to be filed away, and discharge %uch other duties as the council, by ordinance or resolution, may direct. He is not to build the bridge on his own plan; nor, if he draw a plan, is the council bound to adopt it. No act of his, •of this class, has any validity till adopted by the council. By determining to go on with the bridge, they make the act their own. The ordinance says he is to “ calculate grades,” but that does not .shield the city from responsibility for injuries resulting from cuttixxg down or filling up streets, in conformity to such grades. The •engineer is not an independent officer.
    V. Even if he were an independent officer, the city would be liable. New York v. Baily, 3 Hill, before cited, is in point. The ■city of Dayton was not bound to build the kind of bridge which they did build. It was not one of the usual kind of canal bridges. It was an arched stone bridge — intended to be a work of great beauty and strength — to improve in value the individual and corporate property of the city, as well as to benefit the public. The ■council were in duty bound to have a plan drawn, filed away, examined, and adopted with care and prudence. If they did not do so, they are certainly liable; and if they did so, the engineer is not .an independent officer, and the negligence was the direct negligence ■of the city.
    VI. The city of Dayton is not to be shielded froxn liability as a “ public officer.” It is in no respect analogous to a public officer. It is not like the county commissioner's. The latter are the agents of the county, as the city council is of the city; and the county and the city must respond in damages for acts which would make individuals .liable. By the act of incorporation, the city is invested with certain rights. The people in that capacity may, and often .do, take upon themselves and agree to discharge some of the duties which to the that them in their own peculiar way. They discharge those duties as well for their own interest, emolument, and pleasure, as for the public good; and it is not supposed that, because they do so, they have the shield of the sovereignty. They are *not, on that account, less liable for the consequences of their acts.
   Ranney, J.

It is perfectly clear that the principle settled in Rhodes v. Cleveland, 10 Ohio, 159; McComb v. Akron, 15 Ohio, 474, and Akron v. McComb, 18 Ohio, 229, can have no application to the present controversy. In each of those cases, the liability of a municipal corporation, acting through subordinate agents, within the .scope of its authority, and without malice or negligence, was enforced, where the acts of such agents resulted in injury to the property of private invividuals. The propriety of investing such corporations with a power to imjjrove their streets, resulting often in indirect injury to private property, is conceded; but the cases rest upon the -clear principle of right and justice, which requires compensation to .go hand in hand with public benefit. And, when in the lawful exercise of these powors, private property must be injured for the common benefit of all, all should be held liable to make reparation; and, in the view of the judges-who concurred in these decisions, the principle was not without support from that section of the constitution of the state, which secures the inviolability of private property. I am aware that these cases have not commanded the universal assent of the profession, and,,as one member of this court, I am quite willing to reinvestigate the doctrines upon which they are founded, when a case shall arise in which it can properly be done; but, notwithstanding their very emphatic condemnation by a highly respectable judge in a sister state (Bronson, C. J., in Radcliff’s Ex’rs v. Mayor, etc., of Brooklyn, 4 Com. 204), I still think that the •obligation to make compensation in such eases can not be seriously •doubted; and the only question seems to be, whether it should not be uniformly provided by the legislature, as a matter of justice, when such improvements are authorized rather than afforded by .action in the courts of law.

*In the present case, it is not doubted that the corporation, under its authority to improve the streets of the city, had full power to build the bridge in question. The special verdict finds that the bridge was built by contract with the city council, upon Si plan furnished by the city engineer; and that its fall, which occasioned the injury to the plaintiff, was owing to a defect in the plan, arising from the carelessness■ and unskillfulness of the-engineer.

The engineer was an officer of the city, elected by the people, and, among other things, charged with the duty of furnishing plans and specifications of this character. He acted in subordihation to, and under the direction of, the city council, although the charter and ordinances of the corporation defined the duties he-was required to perform. This action is grounded, therefore, upon the negligence and unskillfulness of the agent and officer of the corporation, resulting in injury to the plaintiff; and not, as in the-cases referred to, upon any claim of liability for injuries arising-from his lawful acts, while executing the orders of the council, and performed without malice or negligence. And the true question is, docs the corporation that elects him, directs what works he shall undertake, and for whose benefit he acts, become responsible-for the fidelity of his conduct, and liable to individuals for iujuries arising from his negligence and want of skill, while executing the lawful command of his employers ? "We have no doubt that it does; and we know not by what court, or in what case, for many years past, it has ever been questioned.

The liability of a private person, under precisely such circumstances, rests upon one of the oldest and best settled doctrines of the common law. We have again and again affirmed, that the liabilities of corporations, private and municipal, are no less extensive ; and that the maxim, respondeat superior, properly applies to-them, in the same manner, and to the same extent, as in its application to the liabilities of private individuals. Kerwhacker v. Cincinnati, Columbus and Cleveland Railroad Co., 3 Ohio St. 172; Keary v. The Same, Ib. 201. *However lawful a business, inay be, and whether pursued by an individual or corporation, the law exacts of those who uudretake it, a careful regard for the rights and interests of others. It must not only be lawful in itself, but also lawfully pursued, to shield from responsibility. It can not be accomplished safely to others, without the exercise of a proper degree of care and skill; which simply means, such care and skill as careful and prudent men, competent to the undertaking, exercise in their own affairs, when the loss, if any happens, is to be borne by themselves. The reasons upon which this doctrine rest, are not in the least diminished, when applied to injuries inflicted by associations of men, endowed with corporate capacities, either for individual emolument or social convenience. They are still but individuals, pursuing their own interests, or common advantage; and it would be altogether inadmissible to permit them to use their acts of incorporation, granted at their own instance, and designed to afford them extraordinary facilities in the accomplishment of these purposes, to deprive others of acknowledged rights. Whether men act individually or collectively, or whether they pixrsue mere private gain, or social convenience, or governmental security, they are equally bound by the great law of social duty, to-so conduct themselves as not to injure others by their malice or negligence; and when they do, the highest considerations of right and justice require them to be held responsible, whoever may be injured, or by whomsoever it may be inflicted. Even the state is .not absolved from the moral obligation of making reparation in such cases; and it is only because her policy requires an appeal toiler justice, rather than amenability in her’ courts, that a remedy is denied.

To a certain extent these doctrines are not controverted by the plaintiff’s counsel, and in a limited sense he concedes the liability of municipal corporations for the negligent or unskillful conduct, of their agents and servants; but he insists that the building of bridges is, from its nature, the exercise of a power, public and Apolitical, devolved upon the city as a public officer of the state, and not a mere corporate power, and that the city engineer is a public ministerial officer of the municipality, and not a mere private servant or employe thereof, for whose conduct it can be made responsible.

We are wholly unable to see how the building of a bridge, when necessary as a part of the street of a city, is to be distinguished in principle from the performance of any part of the work that may be needed to accomplish the same purpose upon the land; or how the mode of appointing an officer, or the rank he may hold, or the particular work he may be intrusted to accomplish, can be of any importance in determining the liability of the corporation. The true inquiry in every case must be, does he act for the corporation, and under the command of its regularly constituted organs, and while acting in such capacity, has he injured the party complaining,, by his negligence or unskilifulness? If this question is answered in the affirmative, the relation of principal and agent exists, and the liability of the former to respond for the defaults of the latter is established. How far this obligation extends, and in what cases it properly arises, is made very manifest in several late cases. To say nothing of the early reported cases, in this state, and the large number determined upon the circuit, it may be sufficient to refer to a scries of decisions in the State of New York, in which the subject has been fully and ably examined.

The case of Baily v. The Mayor, etc., of the City of New York, 3 Hill, 531, was brought to recover for an injury sustained by the plaintiff from the breaking away of a dam on the Croton river, erected for the purpose of supplying the city with water. The work was done by contractors, under the superintendence and control of water commissioners, appointed by the governor of the state, with the advice and consent of the senate; and it appeared that the injury arose from their want of skill and care in constructing the dam. On the part of the city, it was ^contended that the construction of the work was a power conferred upon the corporation for an exclusively public purpose, in the performance of which they were obliged to employ the commissioners appointed by the state, without the ability to discharge them, and substitute others in their places, and therefore that they could not be deemed the agents of the corporation. But the court were of a different opinion, and gave judgment for the plaintiff. It was admitted that a public officer, although liable for his own negligence or malfeasance in the discharge of his duties, was not so liable for the misconduct of those he was obliged to employ, the rule of respondeat superior not applying in such cases. But it was held, that the power conferred upon the corporation had for its principal object the private advantage of the inhabitants of the city, although incidentally benefiting the public at large; and inasmuch as the corporation might have’ accepted or rejected the amendment to its charter, it must be held to have accepted it upon the condition that the agents should be appointed by the state, and from that time forth they became the agents of the corporation, and fixed the liability of the corporation for their negligent and unskillful acts while in the discharge of their duty. The case was taken to the court for the correction of errors, where the judgment of the Supreme Court was affirmed. 2 Denio, 433.

In the case of the Rochester White Lead Co. v. The City of Rochester, 3 Com. 463, the property of the plaintiffs had been injured in consequence of the unskillful construction of a culvert, built under tbe superintendence of tbe city surveyor. Tbe plaintiffs were allowed to recover, and in answer to the objection that tbe work was of a public character, in tbe performance of wbicb tbe corporation could not be held responsible, in a private action, for tbe misconduct of its officers, tbe court proceed to draw tbe distinction between tbe acts of a corporation, judicial in tbeir nature, and such as are merely ministerial, bolding an ordinance of tbe corporation, directing the construction of a work *within tbe scope of its powers, to be judicial, for which it can not be made responsible; but that the prosecution of a work thus authorized was merely ministerial, and that the corporation was bound to see it done in a safe and skillful manner.

The same distinction was taken in the case of Lloyd v. The Mayor, etc., of New York, 1 Seld. 369; in which the plaintiff recovered for the value of a horse, whose death was occasioned by the negligence of an officer of the city, in leaving open a public •sewer, during the night, while undergoing repairs. The court say: “ Tbe act wbicb caused tbe injury in the present case, was performed under the power and duty to clear the sewers of the city. Legislation, or, in other words, the establishing of rules and regulations in respect to cleaning tbe sewers, or keeping them in a state of cleanliness, is one thing, and tbe act of cleaning them is another. The power and duty to perform tbe latter is clearly ministerial, and falls under tbe class of private powers. The principle of respondeat superior consequently applies, and the judgment must be affirmed.”

These cases sufficiently indicate tbe true line that divides the exercise of public, or merely j udicial or legislative powers, conferred upon a corporation, from those ministerial or executive, and municipal in tbeir nature and character.

In the exercise of tbe first class, the corporation can not be made responsible for the misconduct of those intrusted with tbeir execution. It embraces all that description of duties, involving judgment and discretion in their exercise, and resulting in prescribing the rules by wbicb the conduct of individuals is to be regulated, or works, either public or municipal, are to be accomplished. And the immunity from responsibility to individuals is grounded upon tbe same public policy, that protects tbe judge or legislator in the exercise of his duties, and is designed to remove every obstruction to the free exercise of his judgment and discretion. It also includes, so far as the liability of tbe corporation is concerned, tbe accomplishment of purposes merely public, ^devolved upon the-corporation as a public officer or agent of the state, with no power to decline their performance. In such cases, the immunity of the state is transferred to its officer or agent, and he only is liable for his own direct misconduct. The power of prescribing rules and regulations is sometimes called judicial and sometimes legislative. It would perhaps be more accurate to say that it partakes of the nature of those powers, and therefore is attended with the same protection to those who exercise it; since it is perfectly clear that the legislature is incompetent to devolve any portion of its legislative power upon a corporation, or take from the judicial tribunals any part of the judicial power of the state, where the constitution has lodged it. C. W. & Z. R. R. Co. v. Clinton County, 1 Ohio St. 77. In such cases, the corporation exercises a wholly subordinate function, and father gives detailed application to legislation, than originates new rules; while its by-laws are to be deemed in the nature of compacts between the corporators, rather than acts of legislation.

But when a municipal corporation undertakes to execute its own prescribed regulations, by constructing improvements for the especial interest or advantage of its own inhabitants, the authorities are all agreed that it is to bo treated merely as a legal individual, and as such owing all the duties to private persons, and subject to all the liabilities that pertain to private corporations or individual citizens. To this class most clearly belongs the construction, repair, and maintenance of its streets. Nor does this conclusion give the least countenance to the supposition, that the corporation is liable for the misconduct of the officers it selects, when performing duties for or between private individuals. In such cases, the whole duty of the corporation is performed when the selection is made, and having no interest in, or control over, the performance of such services, no liability attaches.

No valid objection can be taken to the rule of damages adopted in this case. It is very true that the damages to be recovered against the corporation, must be the immediate, natural, an 1 *necessary result of the negligence or want of skill complained of. But the drawing off the water for the purpose of removing the materials, of which the bridge was composed, out of the canal, was as clearly the necessary result of its fall, as its obstruction of the water while in.

Finding no error in the ruling of the court below, the judgment must be affirmed.


author: Thurman, C. J.

text:
    David S. Dutro v. Matthew Wilson, Jr.
    The word “ owner,” in section 1 of the mechanics’ lien law, is not limited in its meaning to an owner of the fee, but includes, also, an owner of a leasehold estate. If the ownership is in fee, the lien is upon the fee; if it is a less estate, the lion is upon such smaller estate.
    'The true rule of damages in an action on the case, brought by a reversioner on account of an injury done to the premises, is the amount of the injury-done to the estate in reversion.
    Error to the district court of Muskingum county.
    The case is sufficiently shown by the following extracts from the ■record:

      Declaration.

    “ The State of Ohio, Muskingum county, ss.
    “ Court of common pleas of Muskingum county, of the term of .March, a. d. 1852.
    “ Mathew Wilson, Jr., by his attorneys, complains of David Dutro, in a plea of trespass upon the case; for that, whereas, the Hope Hose Company, No. 1, before and at the time of the committing of the grievances hereinafter mentioned, had and enjoyed a certain lot or parcel of land, with the appurtenances, situate in the city of Zanesville, in the county aforesaid, as tenant thereof *to the said plaintiff, that is to say, as tenant thereof for one year, from the 1st day of September, 1851, with the privilege of continuing said tenancy for two years more, that is to say, for three years from the commencement thereof, to wit, at the county aforesaid. Yet the said defendants contriving, and wrongfully and unjustly intending to injure, prejudice, and aggrieve the said plaintiff, in his said reversionary interest and estate, in and of the said lot or parcel of land, and the appurtenances thereto belonging, while the same were so in the possession of the said Hope Hose Companyj No. 1, as tenant thereof, as aforesaid, to the plaintiff, to wit, on the Dth day of March, A. d. 1852, at the county aforesaid, wrongfully ¡and entered upon said lot or parcel of land, and then and there removed therefrom a certain frame building, then situate-thereon, of great value, to wit, of the value of one thousand dollars, whereby the plaintiff hath been, and still is, greatly damaged in his said reversionary interest, to wit, at the county aforesaid.”
    There were two other counts in the declaration, but it is unnecessary to notice them.

      Pleas. — “ And now comes the said David Dutro, by Goddard & Eastman, his attorneys, and defends the wrong and injury, when, etc., and as to the first count of the plaintiff’s declaration, saith that the said plaintiff ought not to have or maintain his aforesaid action thereof against him, the said defendant, because he says that the said Hope Hose Company, after the commencement of their said lease from the plaintiff, and before the expiration thereof, to wit, on the 1st day of October, 1851, at Zanesville, in the county aforesaid, undertook to erect a frame building upon the said land;, and in furtherance thereof, then and there contracted and agreed with one Erastus Bailey, that he, the said Erastus, should put a roof upon said building, and paint and glaze the same, for a reasonable compensation, to be paid him by said company; and the defendant avers that the said Hope Hose Company did then and *there proceed to erect said building upon said demised premises, and that said Bailey, in pursuance of said contract, did then and there proceed to put a roof on said building, and to paint and glaze'said building, and that he reasonably deserved to have therefor a large sum of' money, to wit, the sum of fifty dollars; and the defendant further avers, that the said Bailey afterward, and within the period of four months from the time of his performing-the said labor, in roofing, painting, and glazing the said building, to wit, on the 11th day of November, 1851, at said Zanesville, made an account in writing of the items of such labor, as follows, to wit :
    Zanesville Hose Company,

      To Erastus Bailey, Dr.

      October 17,1851.
    To roofing hose-house, 7 squares and 20 feet — $5 per square. $36 00
    To priming front of house and windows and doors............ 4 00
    To priming and glazing 45 lights of glass....................... 3 15
    $43 15-
    And on the day and last aforesaid, at said Zanesville, made-oath thereto; and on the same day filed the said account, with the oath aforesaid, in the recorder’s office of said county of Muskingum, when the same was, by said recorder, recorded in a separate book, provided by him for the recording of liens, in book A, page 86, on the same 11th November, to wit, at Zanesville aforesaid. And the defendant further in fact saith, that the said Erastus Bailey having such lien as aforesaid, afterward, and within the period of four months from the time of performing such labor, to wit, on the 5th day of January, 1852, at said Zanesville, commenced a suit before Frederick A. Seborn, Esq., a justice of the peace for said Zanesville, against said Hope Hose Company, and for the amount of the said account; and such proceedings were thereupon had that afterward, to wit, on the 13th day of January, 1852, at said Zanesville, by the consideration of the said Frederick A. Seborn, Esq., the said Bailey recovered judgment in the same action, and upon the same account, against said ^company, for forty-three dollars and fifteen cents damages, and eighty-nine cents, costs of suit. And the defendant further saith, that the said Bailey, afterward, to wit, on tho 13th day of January, 1852, caused an execution to be issued upon said judgment, directed to any constable of the said city of Zanesville, and commanding him of the goods and chattels of said Hope Hose Company he cause to be made the damages and costs aforesaid, and costs that might accrue; which writ afterward, to wit, on the 14th day of January, 1852, at said Zanesville, came into the hands of Benjamin Spangler, a constable for said Zanesville, who, in purstiance thereof, afterward, on said 14th January, at said Zanesville, levied the same upon the said Hope Hose [building], being the same frame biiilding mentioned in the first count of the plaintiff’s declaration, and the same on which the said Bailey had his said lien, and advertised the same for sale, and afterward, to wit, on the 26th day of said January, at said Zanesville, sold the same to this defendant for the sum of two hundred dollars, as by the return on said execution, with the said justice remaining, fully appears. And the defendant afterward, to wit, on the 6th day of March, 1852, entered upon said lot and removed the said building, doing no injury to the plaintiff, as he lawfully might; all which he is ready to verify. Wherefore he prays judgment, if the plaintiff ought to have or maintain his aforesaid action thereof against him, etc.
    “And as to the second and third counts of the plaintiff’s declaration, the defendant saith he is not guilty in manner and form as therein alleged, and of this he puts himself upon the country, etc.”

      Replication. — “And the said plaintiff, as to the said plea of the said defendant, firstly above pleaded, says, that by reason of anything therein pleaded by the said defendant, in that respect, he ought not to be barred from his aforesaid action thereof against him, because, he says, that at the time of the making and execution of *the said lease, in the first count of his said declaration mentioned, there was a building on the said lot or parcel of land, in said count mentioned; that by the terms of said lease, the said Hope Hose Company was to have said building to use as they might see proper, they agreeing to leave on said described tract of land a good, substantial frame building, when they delivered the same up to the said plaintiff, with all the improvements they might put thereon, to be delivered up with the said lot or parcel of ground to the said plaintiff; and the said plaintiff, in fact, says that the said Hope Hose Company did remove from said parcel of land the building aforesaid, then standing thereon, and erected in its stead the said frame building described in the said plea of the said defendant, by him firstly above pleaded as aforesaid; and this the said plaintiff is ready to verify. Whereof he prays judgment, etc.”

      Rejoinder. — And now comes the said David, by Goddard & Eastman, his attorneys, and saith that the plaintiff ought not, by reason of anything in said replication alleged, to have or maintain his aforesaid action thereof'against him, because he says that the said supposed lease in said replication referred to, was in the words and figures following, that is to say:
    “ This is to certify that I, Matthew Wilson, Jr., have rented unto the Hope Hose Company, No. 1, of Zanesville, Ohio, a certain lot of ground on Sixth street, on the rear of Beaumont & Hollingsworth’s store, for the term of one year from the first day of September, at fifty dollars per year, to be paid quarterly, the said Hope Hose Company to have the privilege of holding it for three years at the same price per year. The said hose -company is to have the building that is at this time on the premises to use as they may see proper, they agreeing to leave a building on the premises, a good substantial frame, when they deliver up *the said premises to M. Wilson, Jr., and all improvements that may be put on to be ■delivered up With the lot.
    (Signed,) “Matthew Wilson, Jr. .. „ ' „ xr xr n í D. H. Orndoree, “ On part of Hope Hose Oo. j Wm h Stei>hens.
    “ Zanesville, September 1,1851.
    “ And no other or different; and the plaintiff avers that the building described in said paper as then on the said premises was at the date thereof, to wit, on the said 1st September, 1851, at said Zanesville, of no value whatsoever. And this the defendant is ready to>. verify, wherefore he prays judgment, if the plaintiff ought to have or maintain his aforesaid action thereof against him, etc.”

      JDemurrer to Rejoinder. — “And now comes'the said plaintiff, by his attorneys, and says that the rejoinder of the said defendant to the replication of said plaintiff, and the matters and things therein contained, and set forth, are not sufficient in law, to bar the said plaintiff from having and maintaining his aforesaid action thereof against .him, the said defendant, and that he, the said plaintiff, is not bound ■by law to answer the same. And this he is ready to verify; wherefore he prays judgment and his damages aforesaid.”
    There was judgment for the plaintiff below upon the demurrer, and upon the assessment of damages, a bill of exceptions was taken to the rulings of the court, of which a copy is now here given:
    “Be it remembered that upon the inquiry of damages which was made by the court, neither party requiring a jury, the plaintiff proved the value of the building removed by the defendant to be the sum of §229.32. The defendant then offered to prove that the said building, for the removal of which this suit was brought, was sold upon an execution as set forth in the defendant’s plea, and also •offered to prove the other facts set *forth in said plea as to said Bailey’s account, and his lien on said building for the same, and .also offered to prove that the money arising from such sale was applied first to the payment of said Bailey’s judgment, and the resi■due to the payment of accounts of other mechanics who had performed labor on said building, and who had taken the steps required by the statute, to assert and continue such liens, and claimed that the judgment for the plaintiff should be for nominal damages only. This evidence the court refused to receive, and decided that the true rule of the plaintiff’s damages was the value of the building, to which decisions of the court the defendant, by his counsel, excepts, and prays the court to sign and seal this, his bill of exceptions, and that the same be made a part of the record, which is accordingly done.”

      Goddard & Eastman, for plaintiff in error.

      Jewett & O’Neal, for defendant.

      Goddard & Eastman, for plaintiff in error:
    I. The builders had a lien upon the property in question, and no interest in the house was acquired by the owner of the lot, whether owner of the term'for years or owner of the reversion, until they were paid.
    II. The Hope Hose Company were, in the sense of the statute, the owners of the lot. The statute does not say owners in fee, nor owners of a term of ninety-nine years, but simply owners. Choteau v. Thompson & Campbell, 2 Ohio St. 114. This sale, it is true, was not a sale of the leasehold interest of the company. It was a sale of a building which stood on it. The hose company do not complain that a part of their interest has been sold, and not the whole, nor can the reversioner,
    III. But the first section of the lien law gives a lien upon the building, independent of the lot upon which it stands. A true paraphrase would run thus : 11 Any person who shall perform labor on any building, by virtue of a contract with the *owner of the building, shall have a lien upon the building, and also upon the lot on which the building stands, to the extent of the interest which the owner has in the lot.” Suppose the mechanics had agreed with these lessees to build for them, the builders to retain a lien on the building for their unpaid bills, to be enforced by sale and removal of the building during the term of the lease, could the lessee have prevented the enforcement of such a lien ? The statute (enacted before this lease was made) takes the place of such a contract.
    IY. The tenth section of the act has no application. There was no equitable title requiring that section to be observed. The title of the hose company, under the lease in question — good under our statutes for three years — was the legal title.
    Y. The case of Thornton v. Williams, 14 Pick. 49, has no application. In that case, Smith had an equity only, and no right of possession, though probably he had actual possession. Ho was not the proprietor of the land, and none but such proprietor could, under the Massachusetts law, subject the building to lien. Our statute-gives the lien upon the building and the land.
    YI. Wilson had no lien on the improvements which should be-made on the lot. The lessees were bound to deliver up the improvements when the lease should expire. ,. This gave him no lien; but, if it did, such lien could not attach till the improvements were discharged from the mechanic’s lien.
    YII. But, in any view, what damages ought Wilson to have, if he recover at all? This suit is brought a very few months after-the commencement of the lease. Non constat, but that at the expiration of the lease the lessees would have a substantial frame house, and deliver it up to the lessor. At most, he could only recover for the technical injury to the land, and in such case the-damages would be nominal only.

      Jewett & O'Neal, for defendant in error:
    I. The condition of this property was not such as to authorize-^the mechanics’ lien. The lien given by the first section of the law is upon the building, “ and upon the lot of land upon which-the same shall stand,; ” but to enable the mechanic to take advantage of this provision of the law, -the labor performed and the materials furnished must be “ by virtue of a contract or agreement with the owner thereof.”

    By the terms of the lease the house removed was to be replaced by another one, and all other improvements put upon the lot were to remain there for the benefit of Wilson. They became his property in law and in fact. He became the owner, and he would have been entitled to his remedy against the lessees, if they, during the existence of their lease, had attempted to remove that or any other building erected on the lot. Having- removed the building that was upon it at the time they took possession, their power to remove was exhausted. All other buildings erected, thereafter, attached to the freehold, and by operation of law, as well as by the provisions of the lease, vested in Wilson the lessor and the owner-of the lot.
    II. Whether or not a mechanic can assert a lien upon a building, not a fixture, is a question which does not necessarily arise in this case. It is not claimed that the building in controversy in this case was not a fixture; nor is it denied that the ownership of the lot was in Wilson. But if we understand the claim of the-plaintiff in error, it is, that the first section of the law under discussion, is susceptible of a division ; that the lien may attach to the building, the fixture, the appurtenance to the land, without attaching to the land itself; and that if the owner of the building is a ■different person from the owner of the land, then the building may bo sold and removed' from the land. No foundation for any such ■ claim can be found in the statute. The very provision which authorizes this lien, and the only provision, is in the first section of ■the act; and by its terms whenever the lien attaches to the building, it must attach to the land upon which the building is erected. Mil. The section referred to is the only section of the law ■that gives to the mechanic a lien for the labor and materials furnished. The law does not embrace all mechanics, nor extend to .all kinds of labor. The engine and car builders can not secure liens for the labor and materials by them furnished, in carrying ■on their business; and the same remark is equally true in regard to almost every other class of mechanics, except those whose business is indicated by the law in the character of the structures named in the first section of it.
    There was reason for authorizing a lien upon a water-craft, ■which on the day of its completion might be floated beyond the jurisdiction of our courts and into another state. But the legislature saw no necessity for embarrassing the ordinary business of the country, with these special liens, upon structures of a movable character, and in which our mechanical interests are more deeply involved, perhaps, than in any other species of property.
    A tenement, not a fixture, is no more permanent than a carriage. It may change owners daily. It may be moved from place to place ■to suit the convenience of its last owner. If it be subject to this lien, then two years, for instance, after its construction, the owner of it at that time, the man who has paid for it and purchased it without notice, because he has no means of obtaining any, for it has no name and no locality, may be called on to pay the mechanic the full amount of what it originally cost.
    IY. The Massachusetts statute in relation to mechanics’ liens is similar to our own, and in support of our views we refer to the •case of Thaxter v. Williams et al., 14 Pick. 49.
    Y. Upon the general question of our right to recover and the •rule of damages; we refer to 4 Kent’s Com. 855; 11 Mass. 518; 8 Pick. 235 ; 19 Ib. 156 ; 16 Ib. 464.
   Thurman, C. J.

By the terms of the lease all the improvements-that the -lessee should put on the premises, were to be delivered up-with the lot to the lessor, at the expiration of the Please. The building in question was erected by the lessee, and was a fixture. The interests of the parties then were, a leasehold estate in the hose company, and a reversion in fee in Wilson, the lessor. The lien of the mechanic who erected the building for the company, was upon the leasehold estate, and no more. This point was-decided in Choteau v. Thompson, 2 Ohio St. 123, where it is said: “ The word ‘ owner,’ in the first section of the act, is not limited in its meaning to an owner of the fee, but includes also an owner of a leasehold estate. If the ownership is in fee, the lien is upon the fee, if it is of a less estate, the lien is upon such smaller estate.”

It follows that Dutro acquired by his purchase no greater estate than that of which the hose company was seized, and as they had no right to remove the building, he acquired no such right. The-demurrer was therefore properly sustained.

For the same reason the testimony offered by Dutro, on the inquiry of damages, was properly ruled out, and the rule of damages-claimed by him properly rejected.

The language of the bill of exceptions is not very clear in respect to the rule of damages adopted by the court, but we infer that by the expression, " the value of the building,” is meant its value to the lessor; that is, the value of his reversionary interest in it. In other words, a not very happy phraseology is employed to express ■ the true rule of damages, which was the amount of injury done to the reversionary estate in the lot by the removal of the building. We are strengthened in this inference by the fact that the only exception taken to the assessment is, that no deduction was made of' the amounts for which the mechanics had held liens.

Judgment affirmed.


text:
    Mahlon Eastman v. Warren W. Wight.
    To enable this court to review the judgment of the court below, overruling a motion for a new trial because the verdict is claimed to be against the evidence, it must appear, either expressly or by necessary implication, that the bill of exceptions contains all the evidence given to the jury upon the trial.
    All jurors must have the qualifications of electors; and if one, not having such qualifications, is retained upon the panel, without the knowledge of the party or his counsel, and after reasonable diligence used to ascertain the fact when the jury is impaneled, a new trial should be granted.
    To lay a proper foundation for a new trial, for such cause, it should be shown to the court, that the disqualification of the juror was unknown to the party «and his counsel, and that reasonable diligence was used before the jury was sworn, by inquiry of the juror, or otherwise, to ascertain whether such objection to his sitting existed.
    Petition in error, to reverse a judgment of tbe district court of Crawford county, affirming a judgment of tbe court of common pleas of tbe same county.
    Tbe original action, wbicb was one of trespass, was tried by jury in tbe court of common pleas, and a bill of excepting was taken to the overruling of tbe defendant’s motion for a new trial, a verdict having been rendered in favor of tbe defendant in error, then plaintiff. Tbe defendant below attempted to justify as supervisor of roads. Among tbe reasons assigned for a new trial were tbe common assignments, that tbe verdict was against tbe evidence, against tbe law, etc. But tbe bill of exceptions does not state that all tbe evidence given at tbe trial is set forth — the language of tbe bill being that tbe witnesses, respectively, “testified in substance” as therein set forth; and in one instance, that a witness being recalled, “ made some explanations, and testified in substance as follows.” Another reason assigned was that David Pulton, one of tbe jurors, was not, at tbe time of tbe trial, an elector of this state, and that that fact was not known to tbe defendant until after tbe jury bad returned tbe verdict and were discharged. In support of this assignment, tbe defendant introduced the affidavit of Fulton, that be was called by the sheriff to fill tbe panel of tbe regular jury; that be was not, when tbe trial was bad, nor was be when tbe affidavit was made, an elector of Ohio; that for tbe (then) last three or thereabouts, be bad been a resident of Indiana, until about six months before the time of the affidavit, when he removed to Ohio; and that he was a citizen a.nd elector of Indiana until October, 1853 (the affidavit is dated April 18,1854); also, the defendant’s own affidavit that he did not know that Fulton was an incompetent juror at the time of the trial, “ nor did he consent to be tried by said jury, ^knowing the same to have any incompetent member thereon; ” that “ affiant was wholly unacquainted with said David Fulton, nor did sai d affiant know that said David Fulton did not have the legal qualifications of a juror, until after said jury had returned their verdict and separate; and during the pendency of the above motion for a new trial, if affiant had known that said David Fulton was not an elector or competent juror, affiant would have challenged him off said jury; and now affiant makes his objection at the earliest opportunity.”
    The court of common pleas having given judgment on the verdict for the plaintiff, the defendant (here plaintiff) filed his petition in error in the district court,‘adding to his other assignments of error, the following: “The testimony in regard to the survey of William C. Parsons is illegal, and was improperly admitted to the jury.” The testimony referred to is not matter of express exception in the bill of exceptions; but it appears that one witness testified that he “was present when Parsons surveyed the route spoken of; acted as chainman. We started at the west end of the route, and chained through to about opposite plaintiff’s house, and there set a pole,” etc., giving the result of the survey; and several other witnesses refer to the same facts, in greater or less degree.
    , The judgment of the common pleas being affirmed in the district court, Eastman has been allowed to file his petition in error, the object of which is to reverse the judgment of affirmance.

      S. R. Harris, for plaintiff in error:
    I. Fulton was not a legal juror. Swan’s Stat. 489, sec. 1; Const., art. 5, sec. 1; Swan, 491, see. 8; lb. 492, sec. 10.
    II. Where a juror is incompetent, or a good cause of challenge existed, and that fact was unknown to the party before verdict, and he made his objection as soon as discovered, a new trial must be granted. Commonwealth v. Spring, Am. Law *Reg., vol. 1, No. 7 (May, 1853); 5 Bac. Abr. 243;. 7 Mod. 54; 2 Met. 558; 1 Scam. 128, and other cases cited in Curwen’s Stat. 189; 1 B. Mon. 213; Briggs v. Georgia, 15 Vt. 61; McKinley v. Smith, Hardin, 167.
    [The other points of Mr. Harris are in reference to the weight of testimony.]

      J. S. Plants, for defendant in error.
    No argument was furnished to reporter.
   Ranney, J.

To enable this court to review the judgment of the court below, overruling a motion for a new trial, because the verdict is claimed to be against the evidence, it must appear either expressly or by necessary implication, that the bill of exceptions contains all -the evidence given to. the jury upon the trial. This has been the constant course of decision, and is affirmed in several reported cases. Kepner, Adm’r, v. Sniveley, Adm’r, 19 Ohio, 296 ; Walker v. Dovlin’s Lessee, 2 Ohio St. 593.

Indeed, the very nature of the inquiry demonstrates the absolute necessity of the rule. No question of law is involved, but it is simply an appeal from the jury on the facts; and without having the evidence given to the jury, it is impossible for us to say whether it justified their finding or not. When the bill of exceptions in this case is subjected to this test, it is very doubtful if it amounts to anything more than a statement of the tendency óf the evidence, without expressly, or by necessary inference, negativing the idea that no further evidence was given. But suppose the objection to the bill of exceptions removed; still it is to be remembered that this is the fourth time the same party has been permitted to reinvestigate the facts — twice before tribunals who heard the evidence, and twice before those who have acted upon an imperfect statement of it upon paper. Three of these tribunals have decided in the same way, and adversely to him. The jury, made by the constitution and laws the exclusive triers of the *facts, .have found a verdict; the court in which this was done, and that heard the witnesses, has approved the finding. The district court has affirmed the correctness of the judgment of the common pleas. Under these circumstances, and with the imperfect understanding that we can get of the evidence, it must appear like the rashest presumption in us to overrule these repeated adjudications, without the clearest convictions that they were erroneous. We are not so convinced. The facts were strongly litigated, and while it would appear to us that the weight of testimony was against the finding, this mere difference of opinion is not enough to justify an interference with it.

It is certainly clear that all jurors must have the qualifications of electors; and if one not having such qualification is retained upon the panel, without the knowledge of the party or his counsel, and after reasonable diligence used to ascertain the fact when the jury is impaneled, a new trial should, for that cause, be granted. But it is equally clear that the proper time to take the objection is at the impaneling of the jury; and it must be taken to have been waived, unless the party is able to show to the court, upon the hearing of the motion, that with the exercise of such diligenco he could not have taken the exception at the proper time. This is indispensable, to prevent constant mistrials, and to protect the rights of the adverse party; otherwise the party afterward taking the exception might lie by and take the chances of a verdict in his favor, and if given adversely, be entitled to a new trial as a matter of course. We have therefore settled, that to lay a proper foundation for a new trial, for such cause, it should be shown to the court that the disqualification of the juror was unknown to the party and Ms counsel at the time the jury was impaneled, and that reasonable diligence was used before the jury was sworn, by inquiry of the juror or otherwise, to ascertain whether such objection to his sitting existed. We have, at the present term, applied this rule in a criminal case of great importance — Parks v. The State.

*The necessity of showing the counsel ignorant of the objection is most apparent. In most cases he is better acquainted with the persons appearing in the jury-box than his client can be. He acts for the client as his authorized agent, and consequently binds the client by his acts in the management of the cause. In this, as in other cases of agency, his negligence is the negligence of the client, and his knowledge the knowledge of the client. If, therefore, he knows of the disqualification at the time the jury is impaneled, it is but right and justice to the other party that the objection should be then taken. Whether he had such knowledge or not can only be known to the court hearing the motion when it is made to appear by affidavit; and it did not appear in the present case. The objection to the juror, in this case, was of the slightest imaginable consequence, as it is not to be presumed that his judgment or honesty would have been materially improved by residing six months longer in the state. No valid objection could have been taken to the testimony given as to the location of the line. It is true that the recorded survey of a county surveyor is of itself only made evidence by the statute. But the actual localion of a line, whether made by a county surveyor or not, may be shown by any one having a knowledge of the fact.

Judgment affirmed.