author: G-rimkb, Judge.

text:
    *S. R. Hutchinson and Others, v. S. Thompson and Others. and C. M. Gidings and Others v. S. Thompson and Others.
    The clause in the ordinance of 1787, for the government of the Northwestern Territory, declaring the navigable rivers therein “common highways, etc. without any tax, impost, or duty therefor,” does not prohibit the states formed in that territory, from legislating respecting those rivers, or affecting their navigation, when their regulations subject equally their own citizens and the citizens of other states, to the inconvenience resulting from such legislation.
    The clause imposes a limitation upon the power of congress to control the navigation of such rivers, within the limits of the new states, and prohibits the states from imposing discriminating restrictions, duties, and imposts, upon the citizens of other states, prohibiting the states from legislating to regulate commerce among the states.
    Any other construction would not admit the new states into the union upon an equal footing with the original states.
    An injunction to the building of a bridge will not be granted, unless the evidence clearly show that the bridge, if erected, would be an obstruction to the navigation of the river.
    Bills in chancery for injunction. From Cuyahoga county. The two bills depending upon the same principles of law, and similar allegations and proofs, were argued by counsel, and considered by the court, together. The bills assert that the Cuyahoga river at Cleveland, is a navigable river, declared so by the laws of Ohio, and within the ordinance of congress of 1787, and therefore a common highway, to be kept for ever free to the citizens of the state and of the United States. That the complainants are forwarding merchants, owners of water lots on said navigable river, (which, at that point, forms part of the harbor of Cleveland,) with large and valuable warehouses and wharves erected thereon, and used for the prosecution of their business, of •transporting merchandise and produce upon said river, and upon Lake Erie, in steamboats, and in vessels propelled by wind. That the defendants, in violation of law and the rights of complainants, have ■commenced obstructing the navigation of said river, below the said warehouses and wharves, by the erection of a bridge over said river( and by placing timbers, driving piles, building piers and abutments, in the navigable parts thereof, thus obstructing the free navigation of ■said river and harbor, to the irreparable injury of the complainants, the destruction of their business and property. And therefore the •complainants pray a perpetual injunction against such obstruction and for general relief. The answers admit the claim 'of property in the complainants, their alleged business, and the navigable and free character of the river; admit also, that they áre erecting a permanent draw bridge across the river, to be supported upon two abutments and two piers, but insist that they will be at*such distance from each other, and that the draw will be elevated so high, as to admit the free passage of every species of water craft. They assert a supposed right to erect said bridge under certain acts of the General Assembly of Ohio, authorizing such structure, and providing for its preservation ; and they insist that the value of their property, at and near the bridge, will be much reduced in value if the bridge is prohibited. Much testimony was taken as to the character of the bridge to be built, (which was intended to connect the cities of Cleveland and Ohio,) and its effect upon navigation and upon the value of property, which can not be here stated, without too much extending this report. The opinion of the Court is referred to for such facts as influenced the decision.
    J. W. Willey, and S. J. Andrews, for the complainants,
    insisted, that the declaration in the ordinance of 1787, that the navigable waters leading into the Mississippi and the St. Lawrence, should be common highways, and forever free, and the provisions of the acts of Congress excluding the beds of rivers from the survey of the public lands, together with the- Ohio acts declaring the Cuyahoga navigable, solemnly appropriated the river to the free, sole and only purpose an'd use of navigation, in the broadest sense, inhibiting its use for any other purpose which can impede or interrupt this entire freedom in any degree. The public is thus secure, not only in the enjoyment of the entire surface of the stream, but also to an indefinite extent above and below. “ Gujust est solum, ejus est usque ad caelum.” Our streets in towns and common roads are public highways. Can it be admitted for a moment, that any one has a right to throw a bridge across our streets for a walk, if high enough to admit the passage beneath of the highest vehicle ? the right thus to exclude from our streets and high • ways light and air, essential to their full enjoyment? The right can only'exist where there is no obstruction, that prevents the use of any part or the whole of a public highway or navigable river. If impediment be admitted at one point it will be justified in another. The interest or passion which prompts one man to obstruct the channel in one place, will prompt another man to obstruct it in another. Instead of one bridge, ten, twenty or a hundred, are justified upon the same claim of'right that justified the first, until the whole river is filled up, the last structure being no greater impediment than the first, until the navigation is annihilated. Greater interests are involved in this question, than the mere property of the complainants. The public has a much greater interest *at stake in these suits than the litigants. Navigation has already made Cleveland a great commercial mart, with an increase of shipping and commerce without parallel in the history of our rapidly improving country. An enlargement of her harbor is •daily taking place from necessity. The general government has already expended nearly one hundred thousand dollars for its improvement. Individual enterprise has added vast sums to these expenditures. Shall these gigantic strides onward be arrested, to accomodate the few at the expense of many ? The river at the place of the bridge is one hundred and eighty feet wide only, and when the draw is down, the bridge obstructs the entire river. The draw is only sixty feet, and when up, it still leaves two thirds of the whole covered with a solid •superstructure of immoveable materials! Can it be successfully maintained, that to shut up permanently two thirds of the river, and -to subject to a timely withdrawal of a part of a bridge used as a common highway, would leave the navigation free ? Will the permanent closing up of two thirds of a navigable river, and placing a bar across the remainder, which every navigator must stop and remove, and cau"tiously warp through, offer no impediment to its free navigation ?
    They cited 5 Ohio, 110 ; 6 Ves. jr. 689; 2 Atk. 182; 10 Ves. jr. 194; 2 Johns. Chap. 164; 2 Vern. 390; 1 Vern. 120, 7, 275; 16 Ves. jr. 338 ; 7 Johns. Ch. 314 ; 18 Ves. Jr, 215; 6 Johns. Ch. 439 ; 12 Pet. 98; 19 Ves. jr. 616; 9 Wheat. 1; 3 Cow. 739; 1 Kent C. 437 ; 1 Pick. 180 ; 12 Mass. 492; 10 Mass. 70; 8 Cow. 146.
    H. Foot and R. Hitchcock, contra,
    admitted the validity of the ■ordinance of 1787, that the Cuyahoga is a navigable river, and' that this court gave a true construction of that ordinance in 5 Ohio, 41.0, They contended the bridge to be erected was upon a public highway-across said river, where a bridge of some kind had been kept up by . the public since 1820, and was essential to the public convenience, and no fair construction of the ordinance and the laws could prevent the-state from constructions to facilitate commercial intercourse, and improving the channels of intercourse. If the power of Ohio, and of the new states, was thus curtailed, she was not in the union, though such was the express provisions, upon a footing with the original states. The Supreme Court of the United States, in Gibbons v. Ogden, 5 Wheat. 1, decided that laws “ regulating the internal commerce of a state, and those which respect turnpike roads, ferries, etc. are component parts” of the mass of legislative power left with *the-states. A late case in New York, 12 Wend. 113, had raised the precise question before us; the right to build a bridge across the Hudson river at Troy, under a legislative act of that state, leaving over the main channel an opening for a convenient and suitable draw, The-court thought the place of the bridge one which vessels had a right to-pass, and where any obstruction entirely preventing or essentially impeding the navigation would be unlawful; but held, that by a free-navigation must not be understood one free from such partial obstacles- and impediments as the best interests of society may render necessary. If the state power was adequate to compel the observance of quarantine laws, which may wholly stop the navigation for a month or more,, or may establish and regulate ferries, etc., it has power to erect-bridges, which is but a substitute for a ferry, and one of many means or channels of internal commerce, essential to its convenient exercise; and therefore that a draw bridge properly constructed might be erected over a navigable river. See also, 2 Pet. 245 ; 7 Pick. 445 ; 1 Pick. 180 ; 4 Pick. 460 ; Ang. Tide W. 48 ; 9 Johns. 507; 1 Kent C. 411; 8 Cow. 146 ; 4 Wend. 9 ; 15 Wend. 115. The ordinance of 1787 does not in fair construction prohibit, impediments, but only the imposition-of tax, impost, or duty.
    But the ordinance of 1787, never was in force in that part of Ohio-called the Connecticut Western Reserve, where this river is situate. The charter of Charles II. to Winthrop and others, granted the soil and governmental jurisdiction, to all the country between the forty-first and forty second degree and two minutes north latitude, from the Narraganset Bay on the east to the Pacific ocean on the west. This grant includes the Cuyahoga river .and the whole of the Reserve. In-1783 Connecticut by proclamation asserted her claim to this grant as .to all lands lying west of Pennsylvania. See Mr. Marshall’s Rep. 16 state papers, 94. In 1786, Connecticut ceded this territory to the United States, except the reserved tract lying between the west line of Pennsylvania and a parallel line one hundred and twenty miles west thereof. 1 Ch. O. L. 64. The ordinance of 1787 was expressly made for the government of the territory of the United States. And •Congress made provision for sale of the lands within said territory; but neither the right of soil or jurisdiction in the Reserve was ever vested in the United States, until the deed of cession by that state to the United States, I Ch. 0. L. 65, vested in them “ the jurisdiction •of the territory.” This was long after the ordinance of 1787. ■Ohio, therefore, in her sovereign authority over the Cuyahoga, *is not limited by any provision of that ordinance, and may, in her dis■cretion, regulate her internal commerce as her judgment shall dictate. The question whether the contemplated bridge will be a nuisance or not, is one of fact. 6 Barn, and Ores. 566; 3 Am. Jur. 185, 190, 200 ; 3 Kent Com. 430, note.
    They cited several legislative acts authorizing the construction of a bridge at the place, and .insisted they operated to dedicate the ground and crossing of the river to the public as a highway, and cited 11 East. 375 n.; 5 Taunt. 126 ; 1 Camp. 260 ; 2 N. Hamp. 513 ; 2 Ver. 480 ; 3 Ver. 521; 2 Saund. 175, c. note e.; 6 Ohio, 303 ; 2 Str. 1004; 2 Stark Ev. 662. This being a public highway, and a former bridge having been carried away, it is the common law right of the respond-ents to repair and rebuild it. Cro. Eliz. 184; 1 Com. Dig. 307 ; 9 Wend. 571.
    S. J. Andrews, for plaintiff,
    in reply, examined the arguments and authorities cited by the respondents’ counsel, and insisted, that if the •river was a public highway, as the ordinance of 1787, and the legislative acts declared it to be, then the order for erecting a bridge across it, in the language of the court, in 1 Pick. 186, “ is void.” He insisted that neither the ease of the staiths in the Tyne near New Castle, nor the bridge over the Hudson at Troy, sustained the defence. In the former case the court thought the mode of lading vessels by .staiths took up less room and interposed less obstruction to the navigation, than the former mode by lighters. 6 Barn, and Cres. 566. In the latter case the defendants set forth legislative authority to build the bridge, not impairing the usefulness of the river as a public navigable stream, and averred they had so erected the bridge, which was -.admitted, in the question submitted to that court, and therefore, and because it was merely to try the right, no one being injured, the structure was not disturbed. 12 Wend. 131.
    As to the claim that the Western Reserve was exempt from the-operation of the ordinance of 1787, he observed that the fifth art. of-that ordinance expressly provides for the boundaries of the eastean state of the North Western Territory, now Ohio, so as to embrace the Reserve. Although the right of soil was in Connecticut, Congress ex- ■ ercised jurisdiction over it, precisely as it- did over the residue of the territory, and in pursuance of the provisions of the ordinance, and of the acts of Congress, the present constitution of state government of Ohio was formed, in which the provisions of the ordinance are-^recognized and ratified. Upon the doctrine of counsel, slavery might be introduced in the Reserve under a new constitution, though-prohibited by the ordinance in all the rest of the state.
    Neither of the counsel for respondents pretend to deny, but the bridge if erected will be a total obstruction to the navigation of the river by steam boats. It is well known, that the most important navigation on the Lake connected with the port of Cleveland, is by steam boats, and this court will never sanction an obstruction to the-navigation which will drive that description of vessel from our harbors. But what right have respondents to compel the warping of schooners and other vessels propelled by wind past this bridge, if business shall require them to be taken above ? We think the bridge a nuisance upon common principles. The Supreme Court of New York, in the case of Lansing v. Smith, 8 Cow. 152, declare the true doctrine, that “ a ditch dug in a public highway, which from the local circumstances of the country, is seldom or never used, but by. one or more families, is still a public nuisance, not because any considerable portion of the public is actually affected by it, but because it obstructs a passage which all' home a right to use.”

   By the Court,

G-rimkb, Judge.

The ground which the complainants assume, in order to entitle them to a perpetual injunction, is, that the work prosecuted by the respondents, will be a permanent obstruction to the navigation of the Cuyahoga, and inasmuch as their property,, and the business in which they are embarked, are dependent for their value upon the free navigation of .the river, that the work undertaken by the repondents will draw after it an irreparable injury to them.

Will, then, the contemplated bridge obstruct the navigation of the-river ? Will it, if permitted, be a violation of the ordinance ? And will it be productive of irreparable mischief to the complainants ? For the first question the state may be considered a party; in the second, the government df the union is directly interested; and the third has relation more immediately td the respective rights of th« complainants and respondents. And yet the determination of the first two, may, in reality, decide the last, for inasmuch as private individuals may maintain a suit for an injury occasioned to them by a public nuisance, yet the moment that the question of nuisance or no nuisance is determined in one way, an end will be put to the question of private right also.

Whether the erection of a bridge will impede the navigation of the driver over which it is thrown, must necessarily depend upon eircumstances. It will, in some measure, depend upon the nature of the bridge which is to be erected, the particular situation where it is placed, and the kind of vessels which navigate the river. When a communication is thus established between the opposite banks of a stream, it is for the purpose of facilitating the travel and transportation upon the highway which leads to it: and if this highway should, as in the present instance, be one continued street, connecting two densely peopled towns, and binding them together as OBe community, it would not be right for the mind to fasten its attention exclusively upon one of these objects, or to consider the one as merely subordinate to the other. Such a ease presents, at any rate, a eonflict of interests, if not of rights, and it should be our endeavor, if possible, so to reconcile them, that the one shall not encroach upon the other. Ono reason, perhaps, why the navigation of the river is considered the. primary, and the freedom of the highway as the secondary interest, is, that rivers are found traced upon the map of the country on its firs'! settlement, while the road or the street is an artificial work, undertaken and abandoned, as the exigencies of society may require. It is a reason calculated to impose upon the imagination, for the latter may acquire as great if not a greater importance than the first..

It appears that the legislature of this state, in 1817, passed an act declaring the Cuyahoga River navigable, and at the same time prohibited, under severe penalties, all obstructions to the navigation of it. It is sometimes difficult to determine what is the precise character of a stream. Rivers were once divided into navigable and not navigable. They are now generally divided into three classes, the two former, and a third partaking of the character of each of the others, and yet distinguishable from both. The act of 1817, however, must be considered as affording unequivocal evidence of what was the intention of the legislature with regard to this stream. There is no gainsaying its provisions, so long as they stand uneontradieted by the same authority which declared them. And this renders it very important to examine several other statutes, for the purpose of ascertaining the true construction which should be given to the act of 1817, or for the purpose of answering a still further inquiry, whether that act has not, by necessary implication, been repealed, so far as regards the subject matter of this suit? The fact that the legislature, when they have declared a river navigable, have generally specified mill dams as an obstruction, can not be considered as evidence of an intention to except every other mode of impeding *the navigation. Nor is the fact that they have authorized the erection of dams and aqueducts in the construction of the great public works of the state, conclusive as to what individuals.may do : though this may be a circumstance of some importance hereafter, in giving an interpretation to the ordinance, and determining the right of the general government.

It is shown that a road or highway has been laid out, leading from Brooklyn Township to ClevelandTownship, crossing the river at this place; and it also appears, that in 1820, the legislature passed an act authorizing Noble II. Merwin and Josiah Barber to build abridge across the river, within limits, whieh include the point where the defendants are erecting their work. They did not avail themselves of the benefit of this act, and a temporary free bridge was afterwards built at the same place. In 1828, another act was passed authorizing a company to erect a toll bridge across the river at some place between Vineyard Lane and the entrance of the Ohio canal. These acts contribute very strongly to show that the legislature do not consider the erection of a bridge, as per se an obstruction to a river : they go further, they show that they did not consider it an obstruction at this particular point. If this reasoning could by possibility, be deemed not to be legitimate, then these various acts must at any rate, be regarded as a repeal, so far as regards the subject matter of this suit, of the statute of 1817. At a still later period, in 1832, an act was passed authorizing the erection of a bride higher up, across the river, and in that act is contained this proviso, “ that nothing herein contained shall be so construed as to prevent the repairing, keeping up and using the floating bridge which is now in use, nor to prevent the building another in its stead.” The company which had been created in 1828, relinquished their right to the public in 1829; a floating ■bridge was then built by subscription, and maintained by the county commissioners, from whom these defendants, in 1836, obtained permission to build a drawbridge. Taking all these circumstances together, if they do not amount to a positive declaration on the part of the legislature, not only that a bridge, but that this bridge, would be a lawful erection, and if they do not, prima facie, show the acquisition of a right on the part of the defendants to build, I do not know what will have this effect.

But inasmuch as the complainants purchased property on the river -in the expectation that the navigation would not be obstructed, it may "be necessary to examine the testimony still further, in order to see whether the whole result of it will at all vary the conclusions to *whieh we have been hitherto justified incoming? Here, however, very little satisfaction is to be gained. There is an irreconcilable conflict in the testimony which has been taken. The witnesses on the part of the complainants are generally of opinion that the proposed work would be an injury to the navigation, while those who testify for the respondents are almost equally unanimous in a contrary belief. Eor instance, John Haggerty says that a wind blowing from the lake, and which will enable a vessel to enter the harbor, will carry it half a mile above the bridge, and he is sustained in this by three other witnesses, while on the other hand they are all directly contra-■dieted by several witnesses whom the respondents have examined. So on the question whether there will be sufficient room below the bridge to transact all the shipping business, there is the same diversity. John Sims and- several others think there will be, and give as one reason, that the Cuyahoga River below the bridge is larger than the harbor at Buffalo. In like manner the witnesses on the part of the com plainants, believe that the warehouses and other property owned by them, will be much diminished in value, while on the other hand those •on the part of the respondents are equally confident that that property would be rendered even more valuable than it is, if the proposed bridge were built. Some of the witnesses not only testify that the bridge would not be an obstruction, but that it would even assist the navigation of the river, since it would afford a place for vessels to make fast their warping line to. It is vain and needless to trace the difference of opinion which runs through nearly all the testimony : but it is easy to see that it presents a complete obstacle to the extraordinary relief which is sought in these bills.

There is no circumstance in the administration of justice, which is-more striking than the contradiction which is discovered, not occasionally, but constantly, in the testimony of witnesses. Every belief which witnesses have concerning even what are called matters of fact, is necessarily made up of á judgment as well as of a direct perception. So far as the last is concerned, every one may be impressed alike ; but there is no testimony, however plain and simple it may be,, which does not require a great variety of judgments to be formed, in order to render it at all intelligible to the, person delivering it in the first instance, and to those to whom he communicates it afterwards. The mind is so accustomed in the common affairs of life, to form these judgments with instantaneous rapidity, and they are at the same time so numerous, and so minute, that they entirely escape our observation ; and we suppose that we are only seeing an ^object, when-in addition to that, and in order to see it, we are really forming a great multitude of judgments ! And as our judgments depend upon our faculties, which are so various, and so variously used, the extreme contradiction which is met with in the testimony of witnesses is not an unaccountable fact at any rate. There is no part of the testimony in. these cases which does not afford illustration of these remarks. Witnesses are examined as to a fact of some importance, whether there is any shipping business of importance transacted above the bridge ; for if there is not, the bridge would not be an obstruction. Some of them testify that business of that character is transacted above the bridge, while others testify that • it is the rarest thing imaginable for vessels to move up above that point; that if they do, they are warped up, and never sail up, and it is only for the purpose of being over-hauled or repaired, or for the purpose of laying up during the winter. With regard to the bridge, some of the witnesses think that the draw which is proposed to be constructed, will obviate all difficulty as to the-passage of vessels, and others are of a directly contrary belief. It is evident what a multitude of judgments and reasonings are involved in the simple examination with regard to this one matter, and what room-there may be for the greatest variety of opinion.

There is another circumstance equally entitled to observation with the one I have just noticed — it is that, when testimony the most discordant imaginable, and tending to totally different results, has been delivered, has had its effect, and a judgment, as must necessarily be the case, has been pronounced upon one side or the other, all the difficulties which had been anticipated in practice, begin to disappear. Things are seen in a different light from what they were before, which, alone occasioned snch a difference of judgment; and the parties frequently find that their interests, which were believed to be absolutely contradictory, are not only reconcilable, but acquire strength from their alliance. The circumstance which, occasioned a difference of opinion and a supposed conflict of rights, disappears. Minds which before saw things- differently, now see them alike.

But the complainants have relied upon the ordinance of Congress of 1787. The various acts of the state legislature which have been referred to, as giving a construction to the term navigable river, or as limiting its meaning in practice, are not here of the same importance-as under the first branch of the case. The right now to be considered, is one which affects the authority of the general government, as well as that of the state ; and it would not be safe to rely upon a sumptive evidence of intention, contained in a number of local acts, as furnishing an absolute rule of interpretation. And yet when it is-considered, that the lawfulness of those acts has never been questioned by the federal authority; that since the foundation of the-state, its legislature have authorized bridges to be erected over the largest streams, the argument drawn from acquiescence is not without force: and when it is also remembered, that Congress have given, donations to the state to aid in the construction of its canals, after it was known that in the prosecution- of the work, some of the widest, streams were crossed by draws and aqueducts, the argument from acquiescence is still further fortified.

The ordinance consists of two parts ; first, of a constitution of government for the then territory ; and secondly, of articles of compact? which were intended to look beyond the period when the people-should emerge from their territorial condition, and become members-of the union. I have called this part a compact, because it is so termed in the instrument: but if it were not for some things which have since taken place, there might be great difficulty in regarding it. in that light. There was in reality but one party to it originally, and that was the general government. But when application for admission into the union was made by the people inhabiting the eastern part of' the territory, modifications in several parts of the ordinance were asked for, and they were granted by the United States as one party, to the state, as the other. This seems to show, that the people of' Ohio have, so far, treated the articles of compact as of perpetual obligation. The alterations proposed were with a view to the imme•diate formation of a state constitution, and were of no importance, if the state should have a right to annul the ordinance the moment it ■assumed that condition. The state may thus, by its own act, have converted that into a compact which was before only a fundamental act of Congress.

But what is the true meaning of that clause which declares the free navigation of our rivers. Its language is this: “The navigable

waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said territory, as to the citizens ■ of the United States, and those of any other states that may be admitted into the confederacy, without any tax, impost, or duty therefor.”

When the ordinance was framed, the articles of confederation were in force. This instrument provided for the admission of Canada into *the Union, but it was entirely silent with regard to the formation of any other new state. It gave no power to organize new states within the bounds of the confederacy. The consequence is, that any new communities which may have sprung up, by whatever name they may have been called, would have been mere dependencies on, and not integral parts of the confederacy. The act of cession by Virginia, ■six years later in date, for the first time provided for the creation of new states, having all the powers of the original states. But for it, the legislature of the Union may have exercised an unlimited control over those communities. The articles of confederation afforded them no security. Congress may have passed laws affecting the navigation of their rivers, and have imposed duties on the commodities transported on them. And the inference which I think we are now justified in making is, that the clause in question, so far as it regards the people of the territory, is a guarantee to them against the interference of Congress ; that it is, in other words, a limitation on the power of the general government, and not a prohibition to the new states. For the clause in question consists of two parts, which are very distinct from each other, not merely because the language is different, but because the subject matter in each is of a different'character. The first assures a free navigation to the people of the territory, and the second to the people of the other states. It is impossible to admit that the first imposes a restraint upon the legislation of the new states, without doing violence to the act of cession, and to the ordinance itself both of which declare that those states should be admitted to a share in the federal eonneils on an equal footing with the original states. It • is plain that the construction contended for, would involve a manifest inconsistency between different parts of the ordinance, and would permit a direct encroachment on the acknowledged powers of those new states.

If this part of the clause is too vague to admit of this construction, then the only other interpretation which we are permitted to give it,, is, that it forbids the states to be formed out of the territory from regulating their internal commerce, or from imposing discriminating duties on persons who should be citizens of one or more of those states, and not citizens of the state passing such laws. The words- states afterwards admitted into the confederacy,” which occur in the ■ latter part of the clause, was not sufficient to denote this intention, inasmuch, as there might be, and actually have been, several new states-created, which were not included in the north western territory.

*But if I should be mistaken in endeavoring to give a just and sensible interpretation to this part of the clause — if it does undertake to prohibit the northwestern states from passing laws affecting the navigation of their rivers, then it might become a question whether such a provision was not, ipso facto, abrogated by the constitution of' the United States ; for the people of a state have not even the right to cede to the government of the Union any of those powers which appertain to its domestic jurisdiction, and which go to make up the idea-of a distinct state. It would not only subvert the authority of the - state, but would also disturb the necessary balance between the federal- and local governments. It will be observed, that the section immediately preceding the “ articles of compact,” declares, that they are ■ adopted, among other things, to ensure the admission of the new states • to a share in the federal councils on an equal footing with the original - states : and the last article but one of the compact, provides that they shall be admitted on an equal footing with the original states in all-respects whatever. To suppose that the author of that instrument intended to spoil the work of his own hands, by mutilating the just authority of the state governments, would be, to say the least, unreasonable, and I have therefore preferred to put such an interpretation upon it, as is at once natural and consistent. The remaining part of ’ the clause, which relates to the citizens of the United States and to those of other states does contain a prohibition on the states of the territory ; and its true sense and intention may be gathered from the-history of the country prior to that time. At a yery early period,. ■even during our colonial condition, the citizens of different parts of the country were greatly harassed by the interfering regulations of the local governments. A difficult controversy once existed on this subject, between Connecticut and Massashusetts. The former state commanded the mouth of the Connecticut river, and imposed duties on boats from Massachusetts. And Massachusetts, in retaliation, laid an impost on all commodities exported to or from Connecticut. The New England confederacy, as it was termed, was in existence at that time, but it was not armed with sufficient authority to prevent these collisions. There was no period prior to the adoption of the articles of ■confederation, which did not attest the same spirit of hostile legislation among the colonies. Their alienation from each other was so extreme, that Dr. Franklin at one time doubted whether they would ever 'be able to form anything like a permanent union. The articles of confederation, for the first time, established that salutary regulation regarding the intercourse of the ^different states, which declared that “ the free inhabitants of each state should be entitled to all the privileges and Immunities of citizens in the several states. He who framed the ordinance, was familiar with the difficulties which gave rise to the insertion of this provision, and he determined to carry its whole spirit into the ordinance.

It was uncertain where the boundaries of the new states would be, •but it was very probable, that some of the rivers of the territory, would traverse more than one of them. It was the intention of the ordinance, first, to restrain a state from obstructing the navigation of .a river to the injury of the inhabitants of another state, into or from which it passed and in the second place, to prohibit all discriminating duties on citizens of other states, on any river, whether it run through several states, or was contained in the limits of the single state which attempted to impose such duties. This was effecting precisely what was effected by the constitution of the United States, which was in agitation at that very time, and was adopted two years afterwards. That gives to the citizens of each state, all the privileges and immunities of citizens of the several states, and in addition, ■clothes Congress with the power of regulating the commerce among the states. The principles of the new constitution, (as it was uncertain whether it would, be adopted,) were carried into the ordinance. But to suppose that it was intended to restrain the state from passing laws affecting the navigation of rivers, which lay exclusively within fits own limits, by authorizing the building of bridges, dams, or aqueducts, can not be admitted, because it would, to say the least, be a palpable departure from those principles. That a state should wantonly clog the navigation of its streams, to the permanent injury of its own people, is not to be supposed. It is one of those events which no legislator would think of providing against, any more than he would against suicide. Or, if such a thing may be supposed, then it is clear, that the restraint can not be imposed in this instance, without invading the appropriate sphere of state jurisdiction.

He who framed the ordinance, had a difficult and delicate task to perform. The people of the United States were then living under the articles of confederation. What should be the exact limits between state and federal authority, what the relative powers of the two species of government, were questions deeply and extensively agitated, and therefore not yet settled. And still more undetermined was the question what should be the relative attributes and authority of states *whose existence was not provided for even in the articles of con federation.

This will account for the very singular fact, that not only does the ordinance establish a constitution for the territory, but some of the leading features of a constitution in embryo are marked out for the •new states, when they should be admitted into the Union. An attempt of this kind would never have been thought of, if the. constitution of the United States had then been adopted. Fortunately these outlines were conformable to the great principles of freedom, were copied from the constitution of other states, and were precisely the elements of government which the people desired to establish: otherwise, I do not know what would have become of them, when the states were admitted into the union under the constitution.

The conclusion to which I have come is, that the clause in the ordinances contains a limitation on the power of the general government, as well as a prohibition to the states. Or- if it is not divisible into two distinct parts, that then it contains throughout a prohibition to the states ; that this prohibition restrains these states from passing laws which should have the effect of regulating its commerce with other states, or from imposing discriminating duties on the citizens of other states, but does not prevent them from legislating concerning rivers which run exclusively within their own limits, when their own ■citizens, equally with the citizens of other states, are subjected to any inconvenience or disability which may flow from that legislation.

There is, in reality, no remaining question to be examined. For although I have considered the case as leading to a third division, yet if' the question of private injury to the property of the complainants, is itself dependent upon the fact, whether the navigation of the river will be obstructed, and there is not evidence under either of the first two branches that it will be, every ground upon which the complainants ask for relief is taken away.

Bills dismissed ; but on the application of the complainants, an appeal was allowed to the Supreme Court of the United States.

Wood, J. being related to a party in one of these suits, did not sit. during the trial of either.


source: Caselaw Access Project

author: Hitchcock, Judge.

license: Public Domain

text:
    *Lessee of Henry Avery v. John Pugh.
    Under the act of 1816, legulating the duties of executors and administrators,, the court granting letters had the same power to direct the sale of real property of the decedent, lying in any other part of the state, as in the-county where letters were granted.
    An administrator can only sell his intestate’s real estate to pay debts upon the-express order of the court, after they have ascertained the necessity of such-sale.
    Ejectment, for ninety acres of land in township two, range six. Prom Montgomery. The case is submitted to the court upon an agreed stalement of facts, showing that both parties claim title to the land in dispute under Daniel Symmes. Symmes died before the year 1818, seized in fee. In 1822 his heirs conveyed to Avery and Nicholas’ Dongworth, and Longworth afterwards conveyed his interest to Avery. Symmes resided in Hamilton County at his death, and administration-on his estate was granted in that county. Proceedings were had in that county to subject his real estate to sale for the payment of debts, under which the defendant, in 1819, became a purchaser,, received his deed, and has ever since been in possession. These proceedings are admitted to have been apparently correct.
    Holt, for plaintiff.
    Stoddard, Odlin, and Schenck, for defendant.
   By the Court,

Hitchcock, Judge.

Prom the agreed facts in this-case, it will be seen that the premises in controversy, being situate in-the County of Montgomery, were sold in pursuance of an order of the Court of Common Pleas of Hamilton County, for the payment of the debts of Daniel Symmes, who died seized of those premises. And the only question raised and discussed by the counsel is, whether that court had so far jurisdiction of the subject matter as to possess the power to order such sale. It seems to be admitted, that if the court possessed the power, then there is an end of the case, and judgment must be entered for the defendant.

The position assumed by the counsel for the plaintiff, is, that the Court of Common Pleas, whether acting as a court of common law, o:f chancery, or of probate, is a court of limited local jurisdiction, and can not take cognizance of matters without or beyond that local juris ■ diction. This, to a certain extent, and as a general rule, is correct, It must exercise its jurisdiction within the appropriate county, but when that jurisdiction has been exercised, the effects are not always limited to the county, or even to tbe state. A judgment recovered in one county, if the court had jurisdiction, is conclusive of *the rights of the parties, not only in that particular county, but throughout the state and throughout the United States, and perhaps throughout the world.

The Court of Common Pleas is created by the constitution, and its jurisdiction, in part, defined by that instrument; but it is left principally to subsequent legislation to ascertain the extent of its jurisdiction, as well as the manner in which that jurisdiction shall be exercised. The first section of the third article of the constitution prescribes. that “ the judicial power of the state, both as to matter of law and equity, shall be vested in a Supreme Court, in Courts of Common Pleas for each county, in justices of the peace, and in such other courts as the legislature may, from time to time, establish.” The fifth section of the same article provides, that “ the Court of Common Pleas in each county, shall have jurisdiction of all probate and testamentary matters, granting administration, the appointment of guardians, and such other cases as shall be prescribed by law.” Acting under the constitution, the general assembly have, from time to time, passed laws regulating the practice of these courts, defining their duties and ascertaining their jurisdiction. In this legislation, however, the common law, chancery, and probate jurisdiction, has been described in different statutes. Each jurisdiction has been kept separate and distinct. To the constitution, then, and to the laws made conformably theieto, we must look, in order to ascertain the extent of the jurisdiction of our several courts.

As before remarked, the Court of Common Pleas is a court of limited local jurisdiction. In other words, it must exercise its jurisdiction in its own appropriate county. But the law authorizes a change of venue, and by such change the jurisdiction is transferred to a tribunal having no original jurisdiction of the case, but which, by the change and the law under which it was made, acquires jurisdiction. And notwithstanding the locality of the jurisdiction of the Court of Common Pleas, still when a judgment is once rendered by that tribunal, that judgment may be enforced by execution issued to any other county of the state. This is not because the jurisdiction of the court is eo-extensive with the state, but because the policy of the law requires that the property of a debtor, wherever located ■within the state, should be subjected to the payment of his debts. The same reason would operate in case of insolvent estates of deceased persons. The, Court of Common Pleas of the county in which the deceased had his last place of residence, have not only jurisdiction to appoint, but it is their duty to appoint administrators on his estate. All the estate of *the decedent is made assets for the payment of his debts, the personal estate first being appropriated. The real estate can not be appropriated without .an express order of the court after having ascertained the necessity of such appropriation. How does the court acquire the jurisdiction to make this order ? Not from the fact that the land lies within the county, but from the fact that they appointed the administrator, and have a supervisory control over his actions until the estate is settled. And there certainly can be no more impropriety in permitting an order of sale to be executed in a distant county, than there is in permitting an execution issued upon a judgment of the same court sitting as a court of law, to be enforced in a distant county.

But unless, by a fair construction of the statute in force at the time this order was made, such effect can be given to it, the title of the defendant must fail.

Before proceeding to a particular examination of this statute, it may be well to refer to the case of Ludlow’s heirs v. M’Bride, 3 Ohio, 240, which is cited by the counsel for the plaintiff as an authority in point. In that case the premises in controversy were situate in Butler county, and had been sold in pursuance of an order of the Court of Common Pleas of Hamilton county, acting as a court of probate. The ■court decided that the court of Hamilton county had no jurisdiction to make the order, and that the sale was consequently void. There is much similarity between the case above referred to and the case before the court; and had there been no change in the law, it would have been an authority in point. But the law in force at the time of the sale to M’Bridehas been long since repealed. This was “ alaw for the settlement of intestates’ estates,” adopted from the Pennsylvania statutes, and published June 16, 1795. In the seventh section of this law, provision is made authorizing the administrator under certain circumstances to sell the real estate of his intestate, but it is only •such real estate as the orphan’s court of the county, where such real ■estate lies, shall think fit to allow, order and direct, from time to time.” This law continued in force until 1805, and was then repealed. And from the first of June, of this latter year, until the first of June, 1808, there was no law in the state, subjecting real estate to sale for the payment of the debts of a decedent. Since this latter period, however, all the estate of a deceased person, with some trifling exceptions, has been assets in the hands of an administrator for the payment of the debts. Such is the policy of the law, and *in construing the several statutes on the subject, this policy should be kept in mind.

The law in force at the time the premises in controversy were sold, is the act of the 25th January, 1816, entitled “ ah act for the proving .and recording wills and codicils, defining the duties of executors and .administrators, the appointment of guardians and the distribution of insolvent estates. ” Oh. St. 929.

It is insisted by the counsel for the plaintiff, that inasmuch as there is no express provision in this, statute, that the court of Common Pleas, granting letters of administration, should have power to order the sale of real estate, situate beyond its local jurisdiction, therefore that an order so made, is coram nonjudice and void. It is true that there is no such express provision, and it is equally true, that there is •no express provision that the court shall have power to order the sale of real estate within its local jurisdiction. But there is a provision that any part or the whole of the real estate of a deceased person, ■shall be sold for the payment of his debts, if the same be necessary. Although such is the provision .of the statute, no reference is made to the locality of the estate to be sold until we al-rive at the thirty-eighth •section of the act. By this section, administrators appointed in other .states, are authorized to sell the property of their intestates, situate in this state, provided such sale be necessary for the payment of debts. In such case the order of sale must be made by “ the court of Common Pleas in the county where the property lies.”

There can be no controversy but that it was the intention of the-legislature by the act of 1816, that all the estate, both real and personal, of a deceased person, should be liable to the payment of his debts, and it is equally clear that it was not their intention that real estate should be sold without an order of a court of Common Pleas. The question is what court of Common Pleas possessed the power to make the order?

The twenty-third section of the act provides “ that when any person dying intestate, shall have real or personal property to the amount of one hundred dollars, the court of Common Pleas in the county wherein such intestate had his last place of residence shall grant letters of administration.” This section unquestionably refers to the appointment of administrators upon the estates of such persons as had: died residents of the state, for.in the forty-eighth section, provision is-made for the appointment of administrators upon the estates of persons dying in other states, having property in this. But where the deceased had been a resident of this state, then *the court of Common Pleas of the county in which he had his last place of residence, had the sole jurisdiction to grant letters of administration.

Letters of administration being granted, it is next made the duty of the administrator to give bonds with sureties, to the satisfaction of' the court, and take an oath faithfully to discharge the duties of his appointment. It is further his duty to procure the personal property of the estate to be appraised, by appraisers appointed by the court, and to return a true and accurate inventory of the same, together with a schedule of the debts due the estate, so far as known, to the clerk’s office of said court within three months.” It is next made the duty of the administrator, provided such sale be necessary, to sell the personal property at public vendue, and “ in all cases of the sales of the-property of the deceased, return a true and accurate statement of the same, to the court or clerk’s office as aforesaid.” He is then to pay the debts of his intestate, and if there be any of the avails of the personal property remaining after the payment of all debts, the saméis to be distributed to the widow and heirs of the deceased, as prescribed in the law. Of all this return must be made to the court.

In the thirty-third section, it is provided “ that if on return made to the court, it shall appear to their satisfaction, that after deducting. the widow’s wearing apparel, one bed and bedding, the expense of the last sickness, funeral charges and the cost of administration, there is not personal property sufficient to pay all the demands against said «state, they shall, after setting to the widow her dower, direct the administrator or administrators to sell so much of the real estate of the deceased as shall be sufficient to discharge all such demands, after the sales of personal property has been applied thereto, etc.” The mode of sale is then pointed out, and the court are authorized to require additional security of the administrator that the avails shall be faithfully applied.

• “ If on return made to the court.” What court is here referred to ? There can be but one answer to this question. It is the court spoken of in the preceding sections of the act. And the only court before spoken of is the court of Common Pleas of the county in which the 'intestate had his last place of residence, and which granted the letters of administration. This is the court to which the administrator must •make all his returns, from which he received his authority, and with which he must, effect his final settlement. And the same court to which return is made, is empowered to order the sale of real estate if .-such sale is necessary. And no other court but this *is referred to in the act in connection with the sale of lands, except in the thirty-eighth section before referred to. Such we take to be the clear interpretation of the act, and any other construction would defeat the intention of the legislature.

Upon the facts agreed, the law is with the defendant, and judgment must be entered accordingly.


author: Wood, Judge.

text:
    Lester Clark v. Caleb Keith.
    'In replevin for several articles, where the jury find for the plaintiff, as to part of them, and for the defendant as to part, assessing to each the proper damages, separate judgments will he entered in favor of each, with full costs.
    Replevin. From Huron. The plaintiff replevied three stacks of hay and thirty-five bushels of corn in the ear standing on the ground. The defendant pleaded, 1. Non detinet. 2. Property in himself, derived through a constable’s sale. The jury returned the following verdict. “ That at the commencement of the suit, the right of possession and the right of property in and to the three stacks of hay in-said declaration mentioned, and in and to twenty bushels part and parcel of the corn therein also mentioned, were in said Lester Clark, and they assess his damages by reason of the premises, at five dollars. And the jury do further find, as to the rest and residue of said corn, viz. the quantity of five bushels, the right of possession, and the right of property, at the commencement of the suit, were in the defendant, and assess the value thereof at two dollars and fifty cents, and his-damages at one dollar.” The counsel for the plaintiff moved for judgment against defendant, for the damages assessed against him with full costs, but the questions arising on the verdict were reserved.
    N. Newton, jr. for plaintiff,
    thought the right to recover costs depended upon the pleadings. The defendant having put in issue the; whole property replevied, when he should have so pleaded as to separate his own from the plaintiff’s property. The plea being found false in part, is bad in toto. Where the whole property is put in issue, as in the plaintiff, if he recover at all, recovers full costs. 4 Mass. 614.
    No argument for defendant.
   *By the Court,

Wood, Judge.

Our replevin act, 3 Ch. St. 1723^, § 7, 8, provides, that in all cases where issue is joined in replevin, and the jury shall find for the defendant, they shall also find whether the defendant had the right of property in the goods and chattels, or the-right of possession only, at the commencement of the suit, and if they shall find either in his favor, they shall assess such damages as they may think right and proper for the defendant, on which, with costs of suit, judgment shall be rendered by the court. But if the jury find for the plaintiff on the issue, they shall assess adequate damages to-him for illegal detention of the property, for which, and the costs, judgment shall be rendered for the plaintiff. In this case both parties-seem to be within the letter and spirit of the act of Assembly, and entitled to costs, for each has an assessment of damages in his favor,, and we see nothing inconsistent with general principles, in awarding-costs to each. The precise question was decided in Massachusetts, in 1809, Powell v. Hinsdale, 5 Mass. 343. In that ease the jury found part of the chattels in the plaintiff and part not, and the court said, that in replevin, each party might be an actor, and if the plaintiff prevailed he should have damages for the caption and detention by the-defendant, but if .the defendant prevailed, he should have a return of the goods, and damages for the taking on the writ, with costs. In ■which case, each party would he considered as prevailing, and as each had judgment for damages, he must also have judgment for costs. We consider the same rule applicable to this ease. Judgment will therefore be entered for the plaintiff, for five dollars and costs, for the defendant for three dollars and fifty cents and costs.


author: Lane, C. J.

text:
    William Davison v. James Wolf and Wife, and Others.
    Under the following will: “ I bequeath to my wife my real estate, in -order to raise my younger children, to have it as long as she continues my widow, but if she ceases to be my widow, I wish it not to be disposed of until the youngest child becomes of age,” no partition can be made among the residuary devisees until the majority of the youngest child, although the widow's estate may have become extinct.
    Chancery. From Pickaway. Edward Davison died in 1827, seized of the lands in controversy, leaving a widow, now the defendant, Mrs. Wolf, seven children by a former marriage, and five children by the last marriage. The plaintiff is one of the earlier children, and having acquired the interest of the other six elder children, *seeks by this bill, a partition of the land. Averring that the widow and her husband have forfeited the estate by waste, he also demands an account of rents and profits.
    The waste proven, consists in clearing and improving a plantation of wild land, and burning the logs of some old cabins for firewood; and was thought by the court undeserving of further notice. The answer and evidence present the question whether the estate of the widow and devisees have not so determined, as to leave the plaintiff a right of partition.
    The will of Edward Davison, after some small legacies to his eldest children, bequeaths his property, as follows ; “ I will and bequeath to my wife Elizabeth, after all my debts and funeral expenses are paid, all my personal property and real estate, in order to raise my five (younger) children: I wish her to have all this property so long as she continues my widow, but if she discontinues my widow by reason of death, I wish the property not to be sold, or disposed of, until my son Edward Davison becomes to the age of twenty-one, then I wish my property to be equally divided between my first named children, and my last named children.” Edward Davison, the devisee, will not be of age until 1847.
    Green and Olds, for the plaintiff,
    contend that the will only devises to the wife a life estate upon condition she remains a widow; and by marrying again she has determined her estate. As to the trust for the benefit of the five younger children, there is no difficulty. The object of the testator was two fold, the benefit of the widow as such, and the raising the children. The widow has ceased to be such, and the children are raised, so far as to be no longer a charge. The provision in the will, forbidding the sale of the property in ease of the widow’s death, until the youngest child came of age, was designed to secure them the means of subsistence, when unable to earn it. The devise to the widow was expressly for raising the children, but upon condition she should not marry again. The trust in favor of the, younger depended, upon the event of her dying the widow of Davison; which is rendered impossible by her intermarriage with Wolf.
    J. D. Caldwell, for defendants,
    contended that the condition of the devise to the widow, the raising of the children, amounted to the full value of estate, and inasmuch as she and her husband had faithfully performed the condition, they were to be regarded in,equity as ^purchasers for a meritorious and valuable consideration, of an estate during the life of Mrs. Wolf. The design of the testator evidently being to place the estate beyond the interference of the elder children during the life of his widow and the minority of her children. There is also a trust for the education and support of the younger children, until the youngest is twenty-one years old, which can not be defeated by their mother’s marriage, but will be protected by the court. 2 Munf. 234; Saund. on uses, etc. 349,351; 3 Pr. Wms. 215 ; 2 Atk; 406.
   By the Court,

Lane, C. J.

The plaintiff insists, that by the marriage of Davison’s widow to Wolf, in 1828, her estate under the will ceased, and that the land became subject to distribution among the residuary devisees. To sustain this position, it is necessary to give such an interpretation to that instrument, that not only the widow’s estate is determined by the marriage, but that no other estate was interposed by the donor, between it and those who hold the remainder.

The common principles of the construction of wills, requires courts to search for the meaning of a testator, without regard to the 'form he ■adopts to express it, and to give effect to that intention, if consistent with the policy of the law. It is evident here, that the object of the ■testator was to provide for the nurture of his youngest children, by keeping the estate undivided for their benefit, until the youngest became of age. To this end he gave the land to his wife during her ■widowhood, to raise them;, and when her estate should be ended by her death, he directed it to remain undisposed of during their minority, -evidently as a provision for them. Admitting, then, for present purposes, that the estate of the widow was extinguished by her marriage, the specific object of the testator, in providing for the nurture of his younger children, can not be carried into execution, without creating ran estate, in those depending on the contingency of the falling in of the widow’s interest, before the youngest child became of age. Viewed in this aspect, the relations of the devisees were : a conditional freehold for the life of the widow ; a contingent remainder to all the younger children in fee. Whether the contingent estate in the younger children, be at law or in equity, is of no moment in this suit in chancery ; either is equally destructive of the plaintiff’s claim for partition.

Bill dismissed.


text:
    *Henrietta Township v. Brownhelm Township.
    In order to gain a settlement under the law for the relief of the poor, the domicil must he clear, notorious, and continuous.
    Debt. From Lorain. Suit to recover compensation for the support and maintenance of Samuel B. Wilgus, a pauper, claimed to be an inhabitant of Brownhelm. The case came on to trial before a jury in Lorain County upon the general issue.
    On the trial of this ease it was proven that Samuel B. Wilgus, then ■an infant, from the year 1829, until late in the fall of 1834, was occasionally in the township of Brownhelm, but had there, within that time, no fixed residence. . That late in the- fall of 1834, and after the ■close of navigation upon Lake Erie, he took boarding at the house of one Parsons, in Brownhelm. During the subsequent winter he was in this township, not to exceed one-half of the time, and the residue of the time, was in the adjoining and neighboring townships. Upon the opening of navigation in the spring of 1835, he left and was absent upon the lake until late in the fall of the same year. During this absence, he left at the house of Parsons, a'box and some small articles-of clothing, and in two instances visited the house himself, but did not stay to exceed one day, at each time. At the times of these two visits, he took away some small articles of clothing and left others. After the close of navigation in the fall of 1835, he again returned to-the house of Parsons, and was there, as testified by one of the witnesses “ off and on,” until the March following, when he left entirely, and did not return until brought back by the overseers of the poor, of the township of Henrietta, in September, 1836. Wilgus was an unmarried man.
    By consent the jury returned a verdict for the plaintiff, subject to-the opinion of the court, and assessed his damages at one hundred and forty-four dollars and fifty cents.
    Tiffany for the plaintiff, and Root for defendant,
    submitted the case without argument.
   By the Court,

Hitchcock, Judge.

The only question for determination in this case is, whether Samuel B. Wilgus, the pauper, had. acquired a legal settlement in Brownhelm, prior to March, 1836. The mode of acquiring such settlement is, by “ residing one year in any township of this state, without being warned by the overseers of the poor for said township to depart the same; or three years after *having been once so warned, without being again warned as aforesaid.” 29 O. L. 320. It is not pretended that Wilgus had ever-been warned to depart from the township of Brownhelm ; of course, iii before March, 1836, he had resided in that township one year, he had; gained a legal settlement. In order to gain such settlement, however,. I apprehend the residence must be continuous. It will not suffice that a person shall have been in a township four months in one year, four-months in another, and four months in a third. The residence must have continued for one entire year from the time of its commencement. In saying that the residence must be continuous, I would not be understood as intending that a person may not be occasionally absent, provided the intention to return be open and manifest. As if, for instance, an individual should go into a township, purchase property and take up his residence, or having a family, should, with his family take up his residence in such township, in either ease a settlement would be gained at the end, of the year, although the individual might have been absent for days or weeks.

The residence must not only be continuous, it must also be open and notorious, and attended with such circumstances as to lead the authorities of the township in the exercise of proper vigilance, to the conclusion that there is an intention to gain a settlement.

In the case before the court, it appears that Wilgus, the pauper, was an unmarried man. In the fall of 1834, and after the close of navigation upon the lake, he took boarding at the house of Parsons, in Brownhelm. Previous to that time, if not afterwards, he appears to have been a transient person, having, sd far as we know, no fixed place-of residence. From the fall of 1834, to the following spring, he resided in Brownhelm, not to exceed one-half the time, and the balance-of the time was in the adjoining and neighboring townships. Upon the opening of navigation in the spring of 1835, he left the neighborhood, and continued absent until its close, late in the fall, with the exception of two occasional visits, not exceeding one day each. True, he left at Brownhelm a small box with some few articles of clothing, but there is nothing to show that this was a fact of general notoriety, or that it came to the knowledge of any of the township authorities. From the close of navigation in the fall of 1835, until 1836, he was- “ off and on” at Brownhelm and in the neighborhood.

In the opinion of a majority of the court, these facts do not prove such continuous, open and notorious residence as is necessary under the statute to entitle a person to a legal settlement.

*The verdict, therefore, must be set aside, and a judgment entered for the defendants.

Wood, J. dissented.


author: Wood, J.

text:
    Jacob Sook’s Administrator v. Geo. Friend’s Administrator.
    In a suit upon a lost sealed obligation, cbaneery has concurrent jurisdiction-with a court of law, where discovery as well as relief is sought.
    A court of law is inadequate to secure the obligator of a lost instrument from indemnity against its recurrence, but chancery is adequate.
    In Ohancert. From Richland. The case made in the bill and substantially proven, shows : — That in 1807, Friend” gave his sealed note to Sook for seventy-five dollars, payable in nine-months or a year,. 'the parties then residing in Pennsylvania. Before the note matured, Friend moved to Ohio, without Sook’s knowledge. In 1829, Sook discovered the residence of Friend, and came to Ohio and demanded payment. Friend admitted the debt and promised to pay, but soon after died, leaving assets more than sufficient to pay his debts. The bill 'has been accidentally lost, and though frequently demanded has not been paid. The bill seeks discovery and payment.
    T. W. Bartley, for the plaintiff,
    cited the following cases : 1 Story Eq. 97, 8, 101; 1 Fonb. Eq. 16, 17 ; 1 Ves. 341; 6 Ves. 812; 7 Ves. 20; 16 Ves. 430 ; 7 Barn. and Cres. 90 ; 2 Sim. 285 ; 2 Hill Ch. 371, 373; 4 Rand. 541; 3 J. J. Marsh. 73, 288, 300; 6 Mon. 140; 2 Bibb, 556; Wright, 526; 1 Yeates, 344; Gilm. D. C. 562; 5 Ohio, 126 ; 2 Wash. C. C. 514 ; 3 Do. 404; Wal. C. C. 66.
    J. Purdy, for defendant,
    cited 1 Har. Ch. 117, 18.
   By the Court,

Wood, J.

The respondent’s counsel contends that inasmuch as an action at law lies upon the note, this bill must be dismissed. This we think does not follow. Though a suit at law may .be sustained upon a lost instrument, and the loss will excuse profert, yet it is well settled, that where discovery and relief are both sought, -,equity has concurrent jurisdiction with a court of law. Judge Story holds the case of a lost sealed instrument one of the %nost common for equity interposition ; and that one of the primary reasons -for exercising this jurisdiction is, that no other court can furnish the same remedy, with all the limitations which may be demanded for the purposes of justice, by granting relief only upon the terms of the party’s giving, when proper, a bond of indemnity, which courts of law can not require as a part of their judgment. 1 Story Eq. 97. There seems no necessity for the interference of equity now, upon the ground that courts of law will not excuse profert, because that rule has been so relaxed, as to admit an excuse for not making profert, in the place of profert although itdeprive the defendant of oyer, 3 Saund. 151, 3, note. Another reason why chancery interposes in such cases, -is to secure the defendant the benefit of the plaintiff’s oath to the fact of loss. 1 Johns. Ch. 417. True, the loss may now be proven at law as well as in equity. But the necessity of requiring indemnity is sufficient to give equity jurisdiction; and the efforts in courts of law to ■afford analogous relief, by requiring an offer to indemnify, is not 'deemed adequate to secure the obligor. 1 Story Eq. 98; 6 Ves. 812.

Again the defendant insists the claim is stale and barred by the Ohio statute. We think otherwise. When Friend left Pennsylvania,, no cause of action had accrued, and neither Sook nor his administrator' are shown .to have been in Ohio, until 1829. Until then, the plaintiff, was beyond sea,” under the construction heretofore given to the statute of limitations in 1804, which was in force when this note matured. The statute had no effect on this contract until 1829, only eight years before the filing of the bill. But there is another reason-why the statute of limitations does not bar this recovery. In 1829, Friend not only acknowledged the debt, but promised to pay it.

We t'hink the plaintiff entitled to a decree for the amount of Manóte with interest, but as no legal demand appears to have been made upon the administrator before suit, the plaintiff must pay his own-costs.


author: Lane, O. J.

text:
    *Town of Lebanon v. The Commissioners of Warren County.
    An act of dedication, by the record of a town plat, of lots as “public ground” ' is presumed, in the absence of ^explanatory evidence, to be for a public square for the use of the town.
    Ueither a subsequent deed by the proprietors, nor their posterior declarations can affect the right.
    The mere erection of a court house on a public square, and its occupation as ■ such, is consistent with the use of the town; and when such buildings are • abandoned, the town may reclaim its rights.
    Bill in Chancery. From Warren. Lebanon was laid out and a plat surveyed in September, 1802, the site then being in Hamilton county. The plat was acknowledged and recorded in October, 1803, after the county of Warren was created, including the town. Four lots (those now in controversy) were designated on the plat, “public ■ ground,” and as such are claimed to have vested in the county for the use of the town. In 1805, Lebanon was established the seat of justice of Warren county. In 1806, the commissioners of Warren county with consent of the town, erected a court house on one of the said lots, and afterwards a jail on another, which from thence were used by the county, and by the people of the town in public meetings, until 1834, when a new court house and jail having been erected in another - part of the town, the courts, etc., were removed there. About this time, the county commissioners proposed to lease the site of the old «court house for twenty years, to the highest bidder. The town claiming the exclusive use, bid in and took a lease, reserving the right to litigate the title of the county to “ the public ground.” The commis-' sioners again proposing to let other parts of said ground on long lease, this suit is brought to restrain their proceeding, to secure the town in the free use of the ground, and to quiet their right as against the ■claims of the donors. The proprietors executed deeds to the commissioners in 1809. The facts are not controverted.
    A. H. Dunlevt and T. Corwin, for plaintiff,
    cited 7 Ohio, 217; 6 Ohio. 304.
    G. J. Smith and-J. Probasco, for defendants,
    cited 1 Ch. St. 291, 353; 3 Ch. St. 2099, 2232; 3 O. L. 255 ; 5 Ohio, 204 : 7 Ohio, 88 ; 6 Pet. 507 ; 8 Ohio, 298, and relied upon the occupancy, and the deed to the county.
   By the Court,

Lane, O. J.

The object of the bill is to prevent the ■commissioners of the county from selling or leasing certain lots in ^Lebanon, claimed to have been dedicated to the town, by its original proprietors, as a public square, and to secure them to their public use.

The town" of Lebanon was laid out by Corwin, Hathaway, and Hurin, in 1802, but the record of the plat was not made until 1803. •On the plat the lots in question are designated as “ public ground.” The registration of the plat, by the operation of the statute of 1800, 2 Ch. St. 291, vests the fee of the land set apart for public uses in the ■ county, to hold upon the uses intended by the donor.

The commissioners claim to hold the lots free from the trust as the property of the county, because they were conveyed to them by a deed of the proprietors in 1809, and because they have been occupied by the county ever since, in the erection and use of a court house and jail, and because, as they say, the lots were originally designed for this purpose.

The dedicating act in- this ease, was the registry of the town plat in 1803. The use was limited and took effect then ; and a subsequent conveyance of the donors affects neither the trust nor the title. The words expressed in the act of dedication were “public ground;.” a phrase which, in reference to a lot in a town, of shape, dimensions, ,and position suitable for this purpose, naturally, though not neces■sarily, means a public square. 6 Ohio, 298; 7 Ohio, 221. Where the words of dedication are ambiguous, the cotemporaneous acts and declarations of the donors, and usage, may be adverted to, to explain them. 6 Ohio, 298; 7 Ohio, 88, 221. The testimony taken in this case, does not show with any certainty, that these words ought to bear a different interpretation. The subscriptions for the erection of a court house, made in 1805, but not paid until 1809, and the erection •of the court house in that year, are probably too long after the grant to be employed to explain its meaning. The actual occupation of the •lots by a court house and jail, is not inconsistent with the use of the property in the town; for the location of a court house and jail on a public square, transfers no property, but is an easement only, and the town may reclaim its rights, when the county occupation shall cease.

Remanded to the county for final decree, with leave to either party "to take further proof.


author: Grimice, Judge.

text:
    *Doctor Dunn v. Henry Cronise.
    'The declarations made by one offered as witness, can not be received to exclude him on the ground of incompetency, to deprive a party of the benefit of his evidence.
    But such declarations maybe received to impeach his credit.
    Assumpsit. From Seneca. The suit is upon a promissory note, made by Cronise to Samuel Leighton, and by him endorsed to the plaintiff. The note is for five hundred and thirty dollars, with interest, dated 8th of June, 1837, payable to the order of Cronise in six months. 'The defence is, that the note was given for real estate conveyed to the defendant by Leighton, and that 'since its execution and delivery to Leighton, the words, with interest, had been inserted in it, and testimony was adduced showing the fact. Leighton was then called by -the plaintiff, for the purpose of explaining the alteration, and that it was done with his and Cronise’s consent. The defendant then called witnesses to prove that they heard Leighton say he was interested in the note, and his offer to sell it. This was objected to, but admitted by-the court, and the witness Leighton, was then rejected. The plaintiff submitted to a nonsuit, and now moves to open it up, because the •court erred in the rejection of Leighton.

      A. L. Rawson and 0. L. Boalt, for plaintiff,
    cited 1 Stark Ev. 51; 5 Mass. 262 ; 8 Mass. 488; 4 M’Cord. 311; 1 Serg. & R. 130 ; 8 Am. Com. L. 517 ; 1 Blackf. 86, n. 2; 2 Ohio, 230; 2 Stark Ev. 757.
    Cuffinberry and Stiver, for defendant,
    cited 8 Mass. 438.
   By the Court,

Grimice, Judge.

This is a question which we might suppose would have arisen very frequently; and yet very little is to-be obtained from the English authorities. There are several American cases, however, in which the point has been directly made,, although the determinations are by no means uniform. In Calston v„ Nichols, 1 Har. & J. the declaration of a witness, that he was interested in the event of the suit, was admitted in evidence on an objection to his competency, and a similar decision was made in an anonymous oase in 2 Hayw. 340, while in Fernsler v. Carlin, 3 S. & R. 130, it was held, that such declarations were not sufficient to exclude the witness. In commonwealth v. Waite, 5 Mass. 261, the same law was-declared. It was said that the confession of a witness as to his incompetency, can not be admitted to disqualify him. *In that case, however, the objection was not made at the trial, but discovery having been made of those confessions after the trial, a motion was made to set aside the verdict for that reason. A new trial is never granted fof the purpose of affording an Opportunity to impeach a witness. No notice, to be sure, is taken of this circumstance, and the-decision is placed exclusively on the ground, that such declarations are inadmissible for the purpose of excluding a witness. In the still, later case of Cotchell v. Dixon, 4 M’Cord 311, it was held, that the declarations of a witness, that he is interested in the event of a suit, are not per se sufficient to deprive the party by whom he is called, of the benefit of his examination. It was well said, that although there might be danger of allowing a witness to give evidence, when he is suspected of having an interest in the event of a suit, yet that sufficient security would be found in permitting the circumstances to be used on the score of his credibility. “ The declarations of a party,” it is said, “ when they operate against his interest, are admitted on the-presumption that he is best acquainted with his own rights, and judging from the known influenee which interest exercises over the mind, it is a fair inference that he would not make such a declaration unless it was true.” But there is no reason why the rule should be extended to the declarations of a stranger. "We think the court erred in excluding the witness.

Nonsuit set aside, and new trial awarded.