author: Wiuuiams, J.

text:
    Coleman & Co. v. Insurance Co.

      Fire insurance — Policy covering separate property, real and personal— When contract severable — When breach of condition as to one, does not defeat recovery for loss of the other.

    A policy of fire insurance issued by the defendant, wliicli, for a premium in gross, insured the plaintiffs to the amount of two hundred dollars on their storehouse, and thirty-eight hundred dollars on their stock of goods therein, contained a condition that, “if the building intended to be insured stands on ground not owned in fee-simple by the assured, the policy shall be -void, unless consent in writing by the company be endorsed thereon.”' Within the period covered by the policy, the house and goods were destroyed by fire; and, it appeared that the plaintiffs did not own in fee-simple, the ground on which the building stood. In an action on the policy, Held: That the contract is severable; and that the breach'of the condition as to the title to the land, does not defeat the plaintiffs’ right to recover for the loss of the stock of goods insured by the policy.
    (Decided April 26, 1892.)
    ERROR to the Circuit Court of Scioto county.

      " The New Orleans Insurance Company, on the 17th day of November, 1882, issued to H. Coleman & Co., a policy of fire insurance, whereby the company insured Coleman & Co. against loss or damage by fire for the period of one year from the date of the policy, to the amount of four thousand dollars, as follows: “$200, on their one story frame shingle roof store-house. $3,800 on the general stock of merchandise, consisting principally of dry goods, groceries, clothing, boots and shoes, hats and caps, queensware, glassware, cutlery, ■ and such other articles as are usually kept for sale in a country store. All contained in their one story frame shingle roof store-house, situated in Pike county, Kentucky.” On the 11th day of April, 1883, the property was totally destroyed by fire; and thereafter proof of the loss was made out and forwarded to the company. The loss not having been paid, Coleman & Co. commenced an action against the the insurance company, in the court of common pleas of Scioto county, to recover the amount of the policy, the loss exceeding that sum. The petition .is in the usual form in such cases, and contains all the necessary averments to entitle the plaintiffs to recover. The answer set up the following defenses: ' ~
    “The said policy was issued and was accepted by the assured upon the following condition and agreement, expressed therein, to-wit: that this policy shall become void : ‘If the assured is not the sole and unconditional owner of the property.’ The said H. Coleman & Co., the assured, were not the sole and unconditional owners of the said storehouse at the time the said policy was issued.”
    • “The said policy was issued and was accepted by the assured upon the following condition and agreement, ex-presed therein,, to-wit: that this policy shall become void : ‘If any building intended to be insured stands on ground not owned in fee-simple by the assured.’ The said storehouse, intended to be insured by the said policy, stood on ground not owned in fee-simple bj^ the assured, H. Coleman & Co.”
    To these defenses the plaintiffs replied, denying that they were not the “sole owners of said store-housealso denying that the policy became or was void because said storehouse stood on ground not owned ■ in fee-simple by the plaintiffs; and further denying that the plaintiffs “stated or represented that said store-house stood on ground owned by them, or agreed in any way that said policy was, or should 'become void if said store-house did not stand on ground owned in fee-simple by them.”
    On the trial of the cause to a jury, the defendant prevailed; a motion by the plaintiffs for a new trial was overruled, and judgment was entered on the verdict. Exceptions taken by .the plaintiffs to the charge of the court, together with the evidence showing the materiality of the instructions, were embodied in a bill .of exceptions, which was duly allowed and made part of the record. Error was prosecuted to the circuit court, where the judgment was affirmed; whereupon the plaintiffs commenced the present proceeding in error in this court.
    The charge of the court to which the exceptions were taken, will be noticed in the opinion.

      Harper, Searls & Millner and George O. Newman, for plaintiffs in error.
    Brief of J. J. Harper.

    Upon this record we make several questions: 1. That the contract of insurance was an Ohio contract. The policy was issued and the premium paid in Ohio. Insurance Co. v. Parks & Canfield, 1 C. S. C. R. 574.
    2. That McFarland was the agent' of the insurer and not of the assured. Section 3644 Revised Statutes; Ins. Co. v. Williams, 39 Ohio St., 584; Baker v. Home Life Ins. Co., 64 N. Y., 648, 650; Pitney v. Glens Falls Ins. Co., 65 N. Y., 23; Mowry v. Rosendale, 74 N. Y., 363; Flynn v. Equitable Life Ins. Co., 78 N. Y., 577; Insurance v. Wilkinson, 13 Wallace, 223; Ins. Co. v. Mahone, 21 Wall, 152; Mut. Life Ins. Co. v. Baker, 94 U. S., 610; Life Ins. Co. v. Eshelman, 30 Ohio St., 647.
    3. If McFarland was the agent of insurer, then the Insurance Co. is estopped to question the title and ownership of the property insured. Wood on Insurance, edition of 1878, sec. 400, page 663, sec. 497, page 837.
    No representation was made at all by the assured; at least no wilful misrepresentation, in regard to the title to the land or the ownership of the store-house.
    And there are authorities which hold that when inquiries are not put by the company or its agents as to the title and situation of the property, and no fraud appears, a suppression of the facts will not make void the policy. Strong v. Manufacturers Ins. Co., 10 Pick., 40; Fletcher v. Com. Ins. Co., 18 Pick., 419; Niblo v. North American Fire Ins. Co., 1 Sand., 551.
    4. But if the assured are to be held liable for the eroneous statement in the policy as to the ownership of the store-Rouse and tbe title to the land on which it stood, we then claim that the contract was not an entirety so as to defeat a recovery for the loss of the personal property insured.
    Now, what is there in the circumstances of this case which should lead us to the conclusion that the parties intended that if the assured had -not the title in fee-simple to the let upon which the store-house stood, that fact should avoid the contract in toto? There is nothing to show that such a defect in the title would have been an objection to a risk on the property; or that the opportunity of insuring the store-house for $ 200 was dhe inducement to taking a risk of $ 3,800 on the chatties. There is nothing in the nature or terms of the contract which makes it so much an •entirety, as that it is at all difficult to tell the amount insured on the store-house as distinguished from that at risk upon the chatties. There is nothing to show that had the stock of goods been insured without insuring the storehouse, the premium would have been greater or different.
    The risks are not necessarily indivisible; they may be dealt with in separate clauses, and are made up of distinct and independent sums on different and distinct properties. There may be reasons which, existing as to one class of the property insured, might deter an, insurance company from taking a risk on any oí the classes. Some such general cause as fraud in the insured as to one class, would, in its nature, extend to'the whole subject matter of the contract, and vitiate and avoid the whole contract in all its parts. But it is difficult to conceive how an act, in itself not evil, though it may affect one of the classes of the property insured, and so affect it as to increase the hazard, if it also does not increase the hazard on another class, should operate so as to impair the contract as to that latter class. Upon the question of the entirety of the contract we cite: Merrill v. The Agriculture his. Co., 78 N. Y.,’452; French v. Che-nango M. Ins. Co., 7 Hill, 122; Koontz v. Hannibal, etc., his. Co., 42 Mo. 126; Lochner v. Home M. F. Ins. Co., 17 Mo., 247; Commercial Ins. Co. v. Sfankneble, 52 Ill., 53; Hartford F. Ins. Co. v. Walsh, 54 Ill., 164, (5th Am. R., 155.); Schuster et al. v. Dutchess County Ins. Co., 102 N. Y., 260, 263, 266.

      The case was also argued orally by J. J. Harper, for plaintiff in error.

      Wells A. Hutchins, Sylvester G. Williams and Eugene Wambaugh, for defendant in error.
    I. The stipulation is binding upon the assured firm; for they affirm all stipulations by their petition, and, besides, they were bound by accepting the policy. Waller y. Northern Assurance Company, 10 Fed. Rep. 232 (U. S. C. C. N. D. Iowa); Mers v. Franklin Ins. Co., 68 Mo. 127, 132; Cleaver v. Traders Ins. Co., 39 N. W. 571 (Mich.).
    II. Of the stipulation it is to be noticed that:
    (1.) It is a warranty; that is to say, the stipulation is to be enforced even in case it be not material, and a breach of the stipulation is to have precisely the same effect as the making of a material misrepresentation. May on Ins. (second ed.) sec. 156, and the following sections.
    (2.) The stipulation does not work a forfeiture. It is not a condition subsequent. On the contrary, it is a preliminary stipulation, and, if not complied with before the making of the contract, prevents the parties from ever entering into the contractual relation. To refuse to enforce the stipulation is not to prevent a forfeiture, but simply to force the parties into a contractual relation against which they themselves have expressly stipulated. Hence the prejudice against forfeitures and conditions subsequent has no place here. Here no rights ever vested and there is nothing to be forfeited. The policy never attached. Eangdell’s Summary of Contracts, secs. 26, 28.
    (3.) The stipulation is not an implied condition, but an express one, made in clear language by the parties themselves; and hence it is to be applied according to its terms. According to the law in some jurisdictions, an implied condition, being- created by the law, may be modified or apportioned by the law as circumstances may suggest; but this is not the law anywhere with reference to an express condition. Rangdell’s Summary of Contracts, secs. 40, 160, 167. In Ohio, as will be shown below, even an implied condition is held to be not severable.

      III. As to tbe building, tbe policy was void from tbe beginning; for, following tbe words of tbe stipulation:
    (1.) Tbe assured firm was not'“the sole and unconditional ■owner of tbe property.”
    (2.) Tbe “building intended to be insured” stood “on ground not owned in fee-simple-by the assured.” Goepper v. Kinsinger, 39 Ohio St., 429.
    (3.) “Tbe interest of the assured in tbe property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee, or otherwise,” was “not truly stated in this policy.” Citizen's Fire Ins. Co. v. Doll, .35 Md., 89, s. c. 6 Am. Rep. 360, 362, 363, 367, 371; Mers. v. Franklin In-s. Co., 68 Mo., 127.
    IV. Tbe policy was void from the beginning as to the contents of tbe building. This policy is an entire contract; for:
    (1.) There is but one consideration. 2 Parsons Con. 519; May on Ins., (second ed.) secs. 74, (last sentence) 189, 227.
    (2.) Tbe words of tbe stipulation are clear, saying that in ■case tbe stipulation be broken “the policy” shall be void. It is not tbe insurance on tbe building that is void, but “the policy.”
    (3.) Tbe risk on the two items insured, the building and its contents, is necessarily identical. Whatever increases tbe moral hazard on tbe building increases tbe hazard on tbe stock in tbe building. The danger of firé to one is a danger to tbe other.
    V. In Ohio the doctrine of entirety is applied to contracts of all kinds, and it is firmly established that even an implied condition is not severable, and that, too, in cases where there is, as there is not here, a right of action for damages because of breach of the condition. Witherow v. Witherow, 16 Ohio, 238; Allen v. Carles, 6 Ohio St., 505, 509; Larkin v. Buck, 11 Ohio St., '561, 569; Goldsmith v. Hand, 26 Ohio St., 101.
    VI. By a vast preponderance in number and weight, the authorities sustain the contention that a breach of the stipulation quoted must avoid the whole policy. Some of the authorities lay great stress upon the question whether the consideration, the premium, is one entire sum, and, if the consideration is entire, ponsider that fact alone as almost exclusively proving an intention tbat tbe contract be entire. Others lay great stress upon the language used, and consider that when the words are that upon breach of condition “this policy” shall be void, it is clearly the intention that in case of breach the whole policy shall fall together. Others, again, lay great stress upon the question whether all of the property insured is subjected to substantially the same risk, and when all of the property is obviously subjected to the same risk, for example, when the property insured is a building and its contents, consider that the identity of risk clearly shows an intention that the contract be entire.
    The question whether the whole contract is to be avoided by a breach of condition is clearly a question of intention. Entirety of consideration, clearness of language, and unity of hazard are all guides in ascertaining the intention of the parties. In a case where these three guides do not lead in the same direction, it may be difficult to show which guide has the right to be followed. In our case that difficulty does not exist; for here all of the guides agree, the premium being unapportioned, the language being that ‘this policy” shall be void, and the building being unable to burn without subjecting its contents to danger.
    An examination of the authorities will show that many of the cases are much stronger than we need. There are, of course, some cases just like ours, cases where a whole policy has been held to be avoided by a breach of a condition that was both a preliminary stipulation and a warranty. Yet there are cases where the same result was reached even when the condition was a condition subsequent, and when consequently there was a forfeiture of vested contractual rights. And there are also cases where the same result was reached when there was no breach of warranty, but merely a misrepresentation, the materiality of which, of course, had to be shown, and was shown ’ by the fact that the misrepresentation, though made only as to a building, necessarily affected the hazard on the building’s contents. Havens v. Home Insurance Company, 111 Ind., s. c. 12 Northeastern, 137; Phoenix Insurance Company v. Pickel, 119 Ind., 155, s. c. 21, Northeastern, 546; Picket v.
      Phoenix Ins. Co.. 119 Ind., 291, s. c. 21, Northeastern, 898; Geiss v. Franklin Ins. Co., 24 Northeastern, 99; Cuthbertson v. North Carolina Home Ins. Co., 96 N. Car., 480, s. c. 2 Southeastern 258; Western Assurance Co. v. Stoddard, 7 Southern Rep. 379; Essex Saving Bank v. Meriden Fire Ins. Co., 57 Cohn. 335; McQueeney v. Phoenix Ins. Co., 12 Southwestern Rep. 498; Loomis v. Rockford Ins. Co., 45 Northwestern, 813; Lee v. Howard Fire Ins. do. 3 Gray, 583, 594; Day v. Charter Oak F. and M. Ins. Co., 51 Me., 91, 99-101; Gottsman v. Pennsylvania Ins. Co., 56 Pa. St., 210; Bowman v. Franklin Ins. Co., 40 Md., 620, 632; Hinman v. Hartford F. Ins. Co., 36 Wis., 159, 169; Plath v. Minn. Farmers' Mtd. F. Ins. Assn., 23 Minn., 479; Moore v. Va. F. and M. Ms. Co., 28 Grattan, 508; Schumitsch v. American Ins. Co., 48 Wis., 26, 30; Aetna Ins. Co. v. Resh, 44. Mich., 55, 56; Baldwin v. Hartford F. Ins. Co., 60 N. H.,-422; American Ins, Co. v. Barnett, 73 Mo., 364, 367; Garver v. Hawkeye Ins. Co., 69 Iowa, 202; Kelly v. Humboldt F. Ins. Co., 6 Atlantic, 740; Gore Ins. Co. v. Samo, 2 Canada Supreme Court, 411.
    By way of summary we make the following points:
    I. There having been a breach of warranty as to the title to the land on which the store building stood, and as to the ownership of the building, there can he no recovery for the goods. The contract is entire, not devisable.
    Upon this point, in addition to the authorities already cited, we refer to May on Insurance, secs. 74,189, 258 (n. 5.) 277; Wood on Insurance, sec. 152,. 328 (n. 2.); 2 Parsons on Con., pages 434, 519; 9 Ins. Raw Journal, pages '56, 61, 62; 3 Ins. Raw Journal, pages 904, 906; 10 Ins. Raw Journal, page 33; 11 Ins. Raw Journal,-104; Stein v. Steamboat, 17 Ohio St., 471.
    II. As to warranty of title and its effect, we further cite: Phillips, Bechle & Co. v. Knox Co. Ins. Co., 20 Ohio, 174, 181; Hutchins v. Ins. Co., 11 Ohio St., 477; Smith v. Ins. Co,, 19 Ohio St., 287, 290; Byers v. Ins. Co., 35 Ohio St., 606; Ins. Co. v. Archer, 36 Ohio St., 608; Home Ins. Co. v. Lindsey, 26 Ohio St., 348; Ins. Co. v. R. R. Co., 28 Ohio St., 69; Geopper v. Kinsinger, 39 Ohio St., 429; May on Insurance, secs. 156, 158, 185, 186; Wood on Insurance, secs. 159, 165, 167, 176; 2 Parsons on Con., pages 421, 429, 482, 438.
    III. It is said in this case there was no written application, and, therefore, no warranty; that it was an oral application without inquiry, and therefore all questions as to title and ownership may be considered as waived. And on this point Wood on Insurance, secs. 154, 162, are cited.
    No written application was necessary. The warranty in this case is not based on statements made in the application, but is based upon the terms of the policy itself.
    Accepting a policy amounts to a declaration that the assured’s interest is truly stated therein. Meis v. Ins. Co., 8 Ins. L- J-, 505; Ins. Co. v. Doll, 6 Am. R., 360, 371; Waller v. Ins. Co., 10 Fed. Rep., 232.
    When there is no application the assured is bound by the conditions of the policy which he accepts and holds without objection. That he never read it is not the fault of the insurers. May on Insurance, sec. 167; Wood on Insurance, sec. 270; 10 Ins. E. J„ 392.
    IV. McFarland clearly was not the agent of the insurance company, but the charge of the court and verdict of the jury cover this point and can’t be here questioned.
    Even if McFarland was agent of the insurance company still sections of the Revised Statutes, 3643, 3644, have no application, and the charge of the court in this respect was also right.
    The case was also argued orally by Wells A. Hutchins, for defendant in error.
   Wiuuiams, J.

The policy of insurance contains the provisions that, “if the assured is not the sole and unconditional owner of the property, or if any building intended to be insured stands on ground not owned in fee simple by the assured,” the policy “shall become void, unless consent in writing, by the company, be indorsed thereon.” The policy was issued without any written application signed by the assured, and the insurance was solicited, as the evidence shows, at the request of the company’s agent, by a third person, on whose report the agent made up the application on which the policy was issued. The assured made no statement, nor was any requested, in regard to the ownership or title of the ground on which the house referred to. in the policy, stood; and it does not appear that there was any intentional concealment of the title, or of any fact material to the risk. It was shown by the evidence, that the fee simple of the land on which the insured building stood, was vested in Hammond Coleman, a’member of the firm of H. Coleman & Co., and his wife, who was not a member of the firm; but, that several years previous to the date of the policy, Hammond Coleman executed a deed for the land, directly to his wife, without the intervention of a trustee, in which the following provision is contained: “This deed is not to take effect until my death. This deed is in compliance with my will heretofore made.” The co-partnership of H. Coleman & Co., when the ¿insurance was effected, and at the time-of the fire, consisted of Hammond Coleman, Adam Venters and Henry E. Coleman; and the actual value of the stock of goods and merchandise covered by the policy, exceeded the valuation therein set forth.

The court instructed the jury, that their inquiry in regard to the title to the land on which the store-house stood must he: “Did the plaintiffs — not Hammond Coleman — have such (fee-simple) estate in this land upon which the building stood? It is not enough to satisfy this provision, that Hammond Coleman, one of the plaintiffs, had a life estate in the land. It is hot enough that he alone had an interest in the land. This would not constitute an estate in fee-simple. If you should find that he has an estate in fee-simple in the land, still it must be the' insured who must have this estate in fee-simple in the land to satisfy this provision, and therefore, if you find from the evidence that thé plaintiffs were not the owners in fee-simple of the land upon which the store building stood, then this policy is void and the plaintiffs cannot recover in this action.” The court further instructed the jury as follows: “This contract, gentlemen, is termed in law, an entire contract, and if you find that there has been a breach of any condition of this contract to which I have called your attention, it violates the policy, renders it void, and nothing can be recovered for either building or goods destroyed.”

The- effect of the instructions were, that if the fee-simple title to the land on which the store house was situated, was not vested in the co-partnership of H. Coleman & Co., but was in Hammond Coleman, a member of the co-partnership, the policy of insurance was void, and the plaintiffs could not recover, either for the loss of the building, or of the goods. These instructions were excepted to by the plaintiffs, who contend they were erroneous, and, on account of which, the judgment should be reversed. The principal ground of the contention is, that the contract of insurance evidenced by the policy, is so far severable, as to entitle the plaintiffs to recover for the loss of the goods, though they may not be entitled to recover for the loss of the building by reason of the state of the title to the land on which it stood.

Whether such a contract is so severable, is a question upon which the adjudications of courts of the highest respectability are in direct conflict. The following are some of the cases which hold the contract to be entire: Barnes v. Insurance Co., 51 Me. 110; Havens v. Insurance Co., 111 Ind. 90; Cuthbert v. Insurance Co., 96 N. C. 480; Bank v. Insurance Co., 57 Conn., 335.

On the other hand, such contracts are held severable, in the following, and other cases: Insurance Co. v. Spankneble, 52 Ill. 53; Insurance Co. v. Walsh, 54 Ibid, 164; Loehner v. Insurance Co., 17 Mo. 247; Koontz v. Insurance Co., 42 Ibid, 126; Insurance Co. v. Lawrence, 4 Metc. Ky. 9; Merrill v. Insurance Co., 73 N. Y. 452; Schuster v. Insurance Co., 102 N. Y. 260. And such, we understand to be the effect of the decision in Clark v. Insurance Co., 6 Cush. 342. There, the policy, for a gross premium, insured the plaintiff’s “Tavern House,” to the amount of $2,200, and his shop, valued at $300. The act of incorporation of the defendant provided, “that when any property insured by this company shall in any way be alienated, the policy shall thereupon be void, and should be surrendered to the directors, to be cancelled.” The shop was alienated by the assured, and the “Tavern House” was afterwards destroyed by fire. It was held', that the alienation of the shop, did. not prevent a recovery for the loss of the tavern. The court say, “The next ground taken by the defendants is, that the shop which was insured in the same policy had been alienated by the plaintiff, and that this is such an alienation as will avoid the policy. But the shop was valued separately, and was inshred separately, as a separate, distinct,, independent subject of insurance, though insured in . the same policy. The alienation of the shop would no doubt avoid the policy pro tanto, and only pro tanto. The tavern house and shop being insured separately, the alienation of one would no more affect the insurance on the other, than if they had been insured in separate policies.” In the case of Insurance Co. v. Walsh, cited above, two houses were embraced in the- same policy, and insured for different sums for a gross premium paid, the policy providing, that if the. insured premises should remain vacant for a certain time without notice to the companjr, the policy should become void; and it was held, that the fact that one of the buildings remained thus vacant without notice to the insurer, would not invalidate the policy as to the other. The action in Loehner v. Insurance Co., 17 Mo. 247, was upon a fire policy covering a dwelling-house and furniture therein. It was held, “A policy may be void in part and valid in part, if the subject-matter is capable of being separated; and, although a failure to. disclose an incumbrance would avoid the policy as to the house insured, it would not avoid it as to furniture insured in the same policy, but separately appraised, unless the' fact concealed was material to the risk.” Koontz v. Insurance Co., 42 Mo. 126, was a case where a policy of insurance upon a certain livery stable, was made to cover both personal and real property. The application of the assured contained a false warranty touching incumbrances upon the real estate; and it appeared that the personal property was separately appraised, and there was nothing to show that the representations as to the incum-brances upon the stable, formed any inducement to the execution of the policy covering the personal property. The court held, that the assured might recover the value of the latter, although the policy was rendered void as to the real estate by reason of such false warranty. The case of Insurance Co. v. Lawrence, 4 Metc. Ky. 9, is much like the one before us. There, the appellant, (company) fo.r a premium of $14.00, insured J. B. Lawrence & Co. against loss by fire, from the 25th of May, 1858, to the 25th of May, 1859, “to the amount of $200.00 on their frame storehouse, situated on the Ohio river, in Gallatin county, Kentucky, known as Jackson’s landing, and $1,200 on the stock of goods in said storehouse.” The premises and goods were destroyed by fire on the 5th of April, 1859, and suit was brought on the policy for the value of the goods, but not for the loss of the building. One defense was, that Kawrence & Co., when they obtained the insurance represented themselves to be the owners of the house, when in fact they were not, which, by the terms of the policy rendered it void. But the court held, that “in the absence of proof that the plaintiffs procured the insurance upon the house for a fraudulent purpose, or that their supposed interest in the house induced the defendant to insure the goods,” the insurance on the goods was not vitiated, and the plaintiff had judgment.

In the case of Merrill v. Insurance Company, 73 N. Y. 452, the policy, for one premium, insured the plaintiff against loss or damage by fire to the amount of $6,000,00, as follows: “$1,000.00 on dwelling-house and wood-house, if attached, $800.00 on household furniture therein, $200.00 on provisions, etc., therein,” and various other items of property described in the policy, each having a specific valuation therein set forth. The policy contained a condition that, if the property insured was incumbered by mortgage or otherwise, unless so represented in the application, the policy should be void; also, that if it should become incumbered by mortgage, judgment, or otherwise, the policy should be void until the written consent of the company was obtained. The real estate was incumbered, and that fact was set up in defense of the action on the policy. It was claimed by the defendant, that it. not only avoided the policy as to the building insured, but also as to the chattel property; and whether it did or not, it was conceded, depended upon whether the contract was entire or severable. In a well considered opinion, Judge Fou-•ger, after commenting upon various decisions on the subject, discusses the question on principle, and in the •course of the discussion, says: “It is plain from the fact of a separate valuation having been put by the parties upon the different subjects of the insurance, that they looked upon them as distinct matters of contract. The effect of a separate valuation was to make them so. No matter how much value there might have been in any one of those subjects, even to the whole amount of the policy, had it been totally destroyed, the defendants could not have been made liable to an amount greater .than that named in the policy as the valuation of it. Thus it was, at the inception of the contract, distinguished from the other subjects of insurance, and the contract so made as to be capable of application to it alone. So too, if but one of the subjects of insurance had been burned, the defendants {ceteris parabus), could not have avoided liability to pay for that, up to the value put upon it; and if not wholly destroyed, but so far damaged as to reach in deterioration- the value put upon it in the policy, the defendants would have to pay that damage; and that subject would no longer form a part of the general matter insured, and hence not a part of the continuing contract. Thus, there. would of necessity be a severance of the contract, worked out by the operation of its own terms. Again, the principle, in the case of a contract about several things, but with a single consideration in gross, is this, that we are not able to say that the party would have agreed for one, or for more than one yet less than all of them, without he could at the same time acquire a right to have them all. But our daily experience and observation shows that "an insurance company is as ready to insure buildings without insuring the contents, and the contents without insuring' the buildings, as to insure them together; so that that principle does not press so hard in considering such a contract as that before us. Besides, it is a rule that an agreement embracing several particulars, though made at one time, and about one affair, may yet have the nature and operation of several .different contracts; as when th^ admit of being separately executed and closed, as we have instanced just above, where the contract may be taken distributively, each subject being considered as forming the matter of a separate agreement after it is so closed; per WASHINGTON, J., Perkins v. Hart, 11 Wheat. 237-251; Rodemar v. Hazlehurst, 9 Gill. 294. In our judgment this rule applies fitly to the contract in hand. It admits of being separately executed and closed as to each of the separate subjects of insurance. When one species of the property insured is burned, a contract to insure as to that, may be performed as to that alone. The insured has paid the premium. A fire doing damage to that subject, the damage may be paid for by the insurer, and that subject be thus put out of the contract, while it remains in Jie7’i as to all the other subjects named in it. When there are several subjects of insurance (as there are fourteen here) separately valued, on which a gross sum is insured not exceeding the aggregate of that valuation, for the insurance of which a premium in gross is paid, it is easy to see what is the rate of premium on the whole valuation, and wha't is the amount of premium on each subject insured. This being so, it seems fanciful to say, that if the facts thus easily reached were stated in detail in the contract it would be severable, while not being specifically spread out it is entire. If there were anything in the terms or nature of the particular contract, or in the circumstances of the case, or in the nature of the different subjects of the insurance, from which it was to be inferred that the insurer would not have been likely to have assumed the risk on one of several of them, unless induced by the advantage and profit of having a risk on all, that would be a rational cause for deeming the contract entire. But when for aught that appears, it is indeed as likely that the insurer would have taken a risk upon any one, or any few, of the subjects insured, at the same rate oi; premiun as upon the whole, and has in the policy so separated the subjects, and so singled them out by a specific valuation, as that there is no difficulty in distinguishing the subject from the rest, and closing the contract as to that separately, and carrying forward the contract as to the rest, it does result that the contract is severable in practical operation, and hence, in law. And so also, that though there may have been some conduct of the insured as to some of the property, not evil in itself, ■but working a breach of a condition in its letter, the effect of that breach may be confined to .the insurance upon that property, the contract as to that be held avoided, and as to. the other subjects be held valid.”

Forfeitures do not readily find favor in the law, and courts are reluctant to declare and enforce them, if, by reasonable interpretation it can be avoided. It is not likely that, in this case, the small amount of insurance on the store-house constituted any inducement for the insurance placed upon the stock of goods; and it does not appear, that the rates upon these classes-of property .were different, nor how it could make any difference if they were, since the only effect, in this respect, of holding the contract sever-able is, that the insurance company is enabled to retain the whole of the premium, which it accepted as the consideration for the insurance of all of the property, for the lesser risk on part of the property only; and it is not to be presumed, that the premium for the insurance of part only of the property, would exceed that accepted for the risk on all of it. It was not shown at the trial that the plaintiffs were guilty of any misrepresentation or intentional concealment concerning the title to the land on which the store-house stood. No inquiry was made of them about it. The subj ect was not a matter of negotiation between the parties in effecting the insurance, and the plaintiffs were ignorant of the condition, for the breach of which the company claims the right to forfeit the whole policy. If the position taken by the company be correct, the condition was broken when the policy was issued; and there was, therefore, no consideration for the premium that was- paid, for no risk attached; and yet, the company, while asserting the invalidity of the contract, holds on to its fruits. - This is not a very consistent position, nor a very just one. A just result is reached, and, as we think the lawful one, by holding, as we do, that the contract of insurance in this case is severable, and the breach of the condition as to the title of the land, does not ■defeat the plaintiff’s right to recover for the loss of the stock of goods insured by the policy in suit. It follows, that in our view of the case, the court erred in the instructions we have referred to, for which error the

Judgment is reversed.


source: Caselaw Access Project

author: Minshau,, J.

license: Public Domain

text:
    Railroad Company v. Perkins.

      Appropriation of private property — Measure of compensation, when wrongfully taken.

    In a proceeding under sections 6448 and 6449, Revised Statutes, by an owner of land, wrongfully occupied by a railroad company, to compel 'the company to appropriate and pay for the same, the measure .of compensation is the value of the land at the time it is assessed in the proceeding.
    (Decided April 26, 1892.)
    Error to the Circuit Court of Trumbull county.
    The facts are stated in the opinion,

      A. W. Jones, for plaintiff in error.
    I. When a railroad company, having the right to acquire property by the power of the state, takes possession of land for its legitimate use, with the purpose of so -acquiring it, and the owner makes no objection thereto, we insist that such land is appropriated by the railroad company to its use at the time of taking possession, and that the only right in the other party is compensation. Hatch Case, 18 Ohio St., 120; Goodin Case, 18 Ohio St., 179; Hairy v. P. & Y. Railway Company et al., 1 C. C. Reports, 426; Rand v. Townshend, 26 Vt., 670; Sargent v. Mocháis, 65 Me., 592.
    II. When a railroad company has entered upon land, and constructed its road over it without, assessment or payment of damages, and without objections on the part of the land owner, the value at the time of such taking, with interest to the time of assessment, seems to be the universal rule of valuation in any subsequent proceeding to determine compensation.
    This question has been several times decided by courts of last resort, and to them I -ask the attention of the court. Daniels v. C. I. & .N. R. Co., 41 Iowa, 52; Old Colony Railroad v. Miller, 125 Mass., 3; Kidder v. Oxford, 116 Mass., 165; Whitman v. B. & M. R. Co., 7 Allen 326; Pomeroy v. C. & M. R. R. Co., 25 Wis., 644; Delaware, etc, R. R. Co.- v. Burson, 61 Pa. St,, 381.

      Taylor & Upton and L. C. Jones, for defendant in error.
    Counsel seems to think that the unauthorized entry upon,' and wrongful use of another’s land, gives the intruder and wrong doer some' right in the property thus sized, especially if the owner sees it done and makes no protest; but surely it does not, whether with or without knowledge, or with or without prtoest. In either case, the possession is a naked possession, without claim of right and wrongful in law, not only in the beginning but continually. No equity flows from such a source'and the owner is still the owner; not merely the owner of the fee, subject to an easement, or to a superimposed equity, but the real, entire, sole owner.
    If the possession is taken and held without the knowledge or against the protest of the owner, or while the owner is under disability, all the remedies given by the common law or by statute may be invoked, but it is possible by his seeing without objection the occupancy and accompanying expenditure of large amounts of money for the owner to become estopped to reclaim possession, but his title is still perfect and other remedies exist. Goodin v. Ca-nal Company, 18 Ohio St., 169; sec, 6446, Revised Statutes.
    The right given by the statute to the owner of lands to compel a corporation in possession without condemnation and payment, and not under a written agreement, to appropriate, was not given for the purpose of enabling him to collect a pre-existing debt, or to realize upon a chose in action, but to compel the user to buy and pay for land then belonging to the proposed seller. It may be worth more than when seized. Very well, why did not the corporation buy or condemn instead of take? However much the value may be, it belongs to the owner. If it has lessened in value, all well again, the owner can claim no more than it is worth. In that case the wrong doer gains by his wrong, in the other he loses.
    Counsel for plantiff insists that there must be a fixed and certain and not a fluctuating time for fixing the value and assessing damages. We most heartily agree with him. The time to fix the value of property for the purpose of sale, is at the time of sale. The buyer should pay according to value of the property when he purchases. If it has been worth more or less that does not matter. The question is, what is it worth when bought and sold. A railroad corporation is given the • power to compel individuals to sell to it their land, however unwilling.they may be, and in certain cases individuals may compel such corporations to buy lands; this is called appropriation; but it is merely a sale, compulsory, may be, but still a sale.
    It should be remembered that the statute fixes the conditions permitting a forced appropriation against a corporation, and that it suggests no defeating conditions of the nature urged in argument.
    It does not say that owners who have quietly seen their property taken and improvements made thereon shall not have the privilege of the statute, but on the contrary it does provide that all owners .whose lands have been taken without appropriation and payment or without a written agreement may institute the necessary proceedings and proceed to judgment.
    Whether or not the ownler may be estopped to reclaim possession, he has this remedy and it is just as broad in behalf of one who' is thus estopped, as it is in behalf of one who is not.
    The case depends so much upon the effect of our statutes that decisions of other courts cannot aid us much, still we ■cite a few among many. 19 Am. R’3r Reports, 227; 124 Mass. R., 118; 15 Am. R’y Reports, 91; 115 Mass. R., 1 to' 14; 66 Pa. St., 404; 10 Am. R’y R., 209; 3 Am. R’y R„ 28;. 5 Am. R’y R. 127; 52 IncL, 163; 68 Ind., 137; Mills Em. Domain, sec. paragraph. 174, page 218.
   Minshau,, J.

The suit below was a proceeding in the probate court of the county to compel the appropriation of a strip of land occupied by the cpmpany as a right of way. A number of errors have been. assigned, but the only one we think necessary to notice is, that which arises upon the charge of the court as to the measure of compensation to be awarded the owner. The land was first entered upon and taken by ThePainesville and Youngstown Railroad Company, the predecessor of the defendant company, in 1873, without any agreement with the owner or lawful authority whatever; and has been so occupied and used. by it and its successors, to the present time. The court charged the jury that the owner was entitled to recover the value of .the land at the time of the commencement of the proceeding; the company claimed that it should be-the value at the time the land was taken, with interest to the present time, and asked the court to so charge the jury, which was refused. Exceptions to the charge of the court, and its refusal to charge, were properly reserved at the time. The verdict was for §6,300, on which the court rendered jugdment, after overruling a motion for a new trial. The judgment was, on error; affirmed by the common pleas, and, also, by the circuit court.

It is claimed that, where a railroad company wrongfully enters upon and appropriates land to its use as a roadway, the only remedy of the owner, who stands by and permits it to be done, without resorting to legal proceedings to prevent it, is to have his compensation and damages assessed to him and paid by compulsory proceedings in appropriation against the company under sections 6448 and 6449, Revised Statutes; and, therefore, that the amount of his compensation and damages is to be ascertained with reference to the time of the wrongful entry; that being, as claimed, the time when the injury was completed, and the time which, according to the general rule, is to be regarded in estimating damages for an injury.

It would seem that the mere statement of this claim should furnish its own refutation. One of two things would seem to be true: either the statutory remedy against the company is a substitute for the right to recover the possession, or it is cumulative, and in either case the measure of compensation should be the same. The more rational construction is, that it was intended to be cumulative, as affording the owner a speedier and more efficient remedy than an action in ejectment; and, at the same time, productive of less inconvenience to the public,, interested in the road as a means of travel and transportation. It could hardly have been intended to authorize railroad companies to enter upon lands and appropriate them, without first making compensation to the owner, as required by the constitution of the state. It may well be doubted whether, in view of section 5, article 13, of the constitution, it is in the power of the legislature to deprive the owner of the right to recover the possession of lands of which he has been deprived by the wrongful entry of a railroad company. In. such case the company is a disseizor and no lapse of time short of twenty-one years, can avail as a defense against the right of the owner to recover the possession of his lands, on the ground that he has acquiesced in the appropriation. The term is here used in an ambiguous sense. A man does not acquiesce in law, by merely neglecting to assert his rights. No acquiescence in this sense, affects his right of action short of the period prescribed for its commencement. “Improvements made by a disseizor or trespasser, upon the land of another, can never give him a title at law, nor in equity; unless, perhaps, in a case of gross fraud on the part of the real owner and under very peculiar circumstances;” 21 Myers’ Federal Dec. section 2054. Unless by its own perversity, no injustice or inconvenience can result from the' application of this principle to a railroad company, wrongfully in the possession of land as a right-of-way. In such case it may at once commence proceedings to appropriate the land, and thus prevent any interruption of its use. The question has never been directly decided by this court. In Hornback v. Railroad Company, 20 Ohio St., 81, an action was brought against the company'to recover the possession of land used by it as a railway. The recovery was denied; not, however, on the ground that such an action would not lie in a proper case, nor was such point made, though the company was. represented by able counsel, but upon the ground that the company had entered under an agreement with the owner,, by which, among other things, it was to fence the track, and that a breach of this stipulation did not divest its right to the-easement. The earliest statute giving the right to the owner to compel appropriation, passed April 6, 1865, (62 Laws 85), was then in force. In Railroad Company v. Robbins, 35 Ohio St., 531, it was held that an action could not be maintained by the owner for the value of his land wrongfully taken and appropriated by a company, on the ground that there is no action for a conversion of land; that the remedy, in such case, is either to compel an appropriation by a proceeding under the statute, or to recover the land itself, as in. other cases of unlawful entry. Goodin v. Canal Company, 18 Ohio St., 169, where it is said that the owner of land,, who stands by and sees, without objection, a public railroad-constructed over it, and large expenditures made upon the-faith of his apparent acquiescence, cannot recover the land,, or enjoin its use by the company, is much relied on. What: is there said, must he confined to the facts of that case. The-railroad company was in possession, under a claim of right, based upon proceedings in condemnation had against the. canal company. The plaintiffs, who were stockholders: and creditors of the canal company, claimed that there was fraud in the proceeding; that the directors of the canal company had been chosen by the railroad company, or by persons acting in its interest, and had used the power thus; acquired to obtain a settlement of the proceedings in condemnation for a sum much less than the real value of the property. This the court found was a fraud; but held the parties estopped from claiming a recovery of the land or an injunction against its use by the railroad company, by having stood by, with a full knowledge of the facts until the: road bad been, completed. It was adjudged, however, that the canal company should recover the full value of the property taken, less the sum that had been paid. Here it will be observed that the railroad company had a legal title to the property, acquired by the proceedings in condemnation; and while in equity this title was bad for fraud, the court held, that the land could not be recovered under the circumstances of the case; and, as it was not a case in which the land could be recovered, it was not a case in which appropriation could be compelled by proceedings under the statute. For the remedy under the statute applies only where there has been no appropriation, and the company is in possession without any agreement in writing with the owner; in other words, is in possession as a wrongdoer, or as a disseizor. And in such case we fail to perceive why the remedy of the owner should be any more restricted than if the entry had been made by a natural person; and in view of the provision of the constitution, regulating the right of appropriation by corporations, that “full compensation shall be first made in money,” it would seem that, if anything,’ it should be less. Certain it is that a company by its own wrong cannot be placed in a better position; and when required, must either yield the possession or pay the value of the land at that time. While under the occupying claimant’s act of 1831, it was held that payment for the permanent improvements of the bona fide occupant under color of title, might be required as a condition to a recovery of the land, yet the amendatory act of 1849, which gave to the claimant the option of retaining the land by paying for it, less the improvements, or of surrendering it on being paid for the improvements, was held to be a palpable invasion of the right of private property, and, therefore, invalid. McCoy v. Grandy, 3 Ohio St. 463. If the right to retain the land on paying for it, cannot be given to one who, under color of title, enters and possesses in good faith, much less can it be given to one who wrongfully enters and possesses without any title.

It is a mistake to say that by the wrongful entry of the company the right of the owner to his land is turned into a mere chose in action for the value of it; and that his only remedy is a proceeding under the statute to compel its appor-priation. If that, were so the legislature has selected verjr inapt language to express it. It will be observed that the statute only applies where “ a corporation,, authorized bylaw to make appropriation of private property * * has taken possession of, and is occupying or using the land of any person,” which has not been appropriated and paid for, oí is not held by an agreement in writing “with the owner,” and the remedy given is to the “owner,” to compel its appropriation as therein provided. The language imports a legislative understanding that the land remains the property of the owner until it has been condemned and paid for as therein provided. This coulcl not be if the wrongful entry of the company worked an appropriation in law, and converted the claim of the owner for land into one for money only. Again, to carry out the reasoning on which this view proceeds, the action, being simply a personal one for money, would have to be commenced in at least six years’ from the entry of the company; whereas it was held by this court in Railway Company v. O'Harra, 48 Ohio St., 343, that the right is not barred in less than twenty-one years.

Again it is said by way of argument that the proceeding must be brought by the owner of the land at the time it is taken by the company, and that it does not pass as a right to his grantee. This is based upon the mistaken assumption, that the wrongful entry of - the company constitutes an appropriation of the land, and converts the claim of the owner into one for its value rqerely. This is not so; and, as any grantee can maintain an action to recover lands wrongfully held against his grantor, where the lands are included in his grant, the proceeding may be maintained by whoever is the owner of the property at the time of its commencement.

The case of Hatry v. Railroad Company, 1 C. C. Rep. 427, 446, is also relied on. The judgment was affirmed by this court upon the opinion of the learned judge who delivered it. The question, however, of the measure of compensation to an owner whose lands have been wrongfully taken by a company was not involved in the case. The point decided was, that one whose lands had been so taken, could not present a claim for payment from the funds arising from a sale-of the road under a mortgage. This could only have been upon the principle, that the claim, in such case, is in the nature of a claim to recover land as distinguished from a demand for money.

Our conclusion then is, that in a proceeding under the statute by an owner of lands, occupied by a corporation without any right legal or equitable, to compel it to appropriate and pay for the same, the measure of the owner’s, compensation is the value of the lands at the time the same is assessed in the proceeding; and that the court did not err in so instructing the jury, and in refusing to charge, that it is the value of the land at the time of the entry of the company, with interest added.

Judgment affirmed.


author: DicKMAN, J.

text:
    Caldwell v. Village of Carthage.

      Condemnation of private property for street purposes — Resolution of council declaring the necessity — Due process of law.

    1. The preliminary resolution declaring the necessity of an improvement, which the council is required to pass, give notice of, and publish as provided in section 2304 of the Revised Statutes, does not apply to the condemnation of private property for opening, extending, straightening, or widening a street.
    2. Where land is appropriated for a street improvement, an assessment by the foot front of the property bounding and abutting upon the improvement, to pay the cost thereof, without the passage, notice, and publication of such preliminary resolution, as thus provided, will not thereby be a taking of property without due process of law, in violation of section 1 of the 14th amendment of the constitution of the United States.
    [Decided April 26, 1892.]

      Error to the Circuit Court of Hamilton county.
    The plaintiffs in error, J. Nelson Caldwell, Frank Caldwell, Fannie E. T. Caldwell, Marion E. Caldwell, and Cornelia A. Caldwell commenced the original action in the court of common pleas, against the defendant in error, The Village of Carthage, E. E. Ross, clerk of said village, and Fred Raine and John Zumstejn, respectively county auditor and county treasurer of Hamilton county, Ohio.
    The Village of Carthage in said county, in order to widen Taylor street in said village, appropriated a strip of ground belonging to the plaintiffs, thirty-three feet wide along the west side of Taylor street for its entire length. To pay the cost and expenses of the appropriation, a special assessment was levied, by the foot front, upon the lots and lands of the plaintiffs bounding and abutting upon the improvement; and the original action was brought to enjoin the collection of the assessment.
    The court of common pleas held the assessment against the plaintiffs and their property to be void, and perpetually enjoined the defendants from collecting or attempting to collect, and from demanding, certifying, or receiving any of said assessment from any of the plaintiffs, to all of which the defendants, by their counsel, excepted.
    The cause was appealed by the defendants to the circuit court, and that court found the facts upon the matters in issue, and rendered judgment, as follows:
    1st. “The Village of Carthage is duly incorporated and is situated in a county containing a city of the first grade of the first class. That on October 1, 1889, there was and for many years prior thereto had been in said village a certain street known as Taylor street, running northwardly from a point near Fifth street to the Hamilton, Springfield, and Carthage turnpike; that said Taylor street was thirty-three (38) feet in width, and that said street was dedicated from the lots and lands lying on the east side thereof.
    2nd. “That said Taylor street is a continuation of Jackson street, and that the west line of said Taylor street when thirty-three feet wide was the center line of Jackson street produced, said Jackson street being sixty-six feet in width. That on October 1,1889, the said Village of Carthage, deeming it necessary to widen said Taylor street, and to make it conform to said Jackson street, of which it is a continuation, the council of said village, by a unanimous vote of its members, duly passed an ordinance No. 808 to appropriate a strip of ground thirty-three (33) feet wide along the west side of said Taylor street for its entire length.
    “Section 1 of said ordinance declared the intent to appropriate the property, describing it, for the purposes above set forth.
    “Section 2 directed the solicitor of the village to apply to the court to have the compensation assessed to be paid for the property.
    “ Section 8 provided that the cost and expenses of said appropriation shall be assessed per front foot upon the lots and lands abutting upon the westerly side of said Taylor street, widened as aforesaid, said assessment to be collected in five annual installments, and bonds to be issued in anticipation of the collection of said assessments.
    “Said ordinance was read the first time. The rule of law requiring “By-laws, resolutions, and ordinances, of a general and permanent nature, shall be fully and distinctly read on three different days, unless three-fourths of the members elected dispense with the rule,” was then dispensed with by a unanimous vote of, the members elected to council, the yeas and nays being called, and entered on the journal. The ordinance was then read the second and third times by its title. On motion final action was then taken, and the ordinance duly passed upon a call of the yeas and nays, by a unanimous vote of the members elected and the vote duly entered on the journal; said ordinance was duly published as required by law.
    “No resolution declaring such widening of Taylor street to be necessary was adopted by council, and, consequently, no publication made or service of notice of such resolution.
    3d. “Plaintiffs in this cause were all parties defendant in a suit brought in pursuance of said ordinance to ascertain the compensation to be paid for the property condemned by the verdict and judgment, but neither the petition, the summons, nor any other part of the record of said cause disclosed the intention or purpose to assess the plaintiffs’ land to pay the cost and expenses of said widening.
    ' 4th. “The benefits of the property assessed, by reason of the appropriation of property and widening of Taylor street, is much greater than the amount of the assessment, and the assessment is less than one-fourth of tax values or actual of the property assessed aftgr the making of improvement of widening said Taylor street.
    “The assessment Includes only the costs and expenses'of the appropriation of property for widening Taylor street, as-provided in said ordinance, No. 808.
    “The court finds on all the issues joined herein for defendants.
    “It is therefore ordered, adjudged, and decreed by the court that the petition herein be dismissed; and that the defendants recover from the plaintiffs their costs herein expended, taxed at $>-. To all. of which findings and judgment plaintiffs by their counsel except.”
    To reverse the judgment of the circuit court this proceeding in error is prosecuted.

      W. M. Ampt and John E. Bruce, for plaintiff in error.
    I. It is contended that section-2304, Revised Statutes, does not apply to improvements in the nature of a widening or extension of a street, and further that its purpose is merely to furnish opportunity to cause damage claims to be filed under section 2315.
    The section is found in that part of the municpal code relating to street improvements which are enumerated in section 2263.
    In section 2305, referring only to cities of the second class and villages, language is used showing that the word “improvement” is intended to include condemnation and appropriations of real estate. Comparing these two sections and the latter appears to be a limitation of 2304, as to such second-class cities and villages, making it necessary in all other municipalities to comply with section 2304 in all improvements. In a word, section 2305 allows municipalities therein named to improve streets in the mode petitioned for, upon passing the resolution called for in section 2304, excepting as to condemnations as to which the mode can not be fixed in the petition.
    Again, section 2284, in fixing the items of cost which may be included in the assessment, says the “cost of an improvement” shall include the price of real estate, whether fixed by a jury in appropriating suits or otherwise, and so must mean that the word “improvement” as used in section 2304, includes street widening, extension, or laying out, as referred to in sections 2263 and 2264.
    Again, section 2264, which is the sole authority for levying any special assessment, refers back generally in the opening clause to section 2263, not only to the cases named in section 2263, but to improvements of any kind, and defines the mode of procedure.
    We therefore claim that section 2304, in the use of the words “public improvement,” includes condemnations of real estate for street purposes.
    An analysis of section 2304, will show that it provides for a declaration of necessity. It provides for such a declaration antecedent and preliminary to the ordering of the improvement under Revised Statutes 2316. It provides for publication of the resolution. It provides for service of a written notice of its passage upon abutting owners. It omits the written notice in sewer inprovements. It does not require that, at this time and in this resolution, the assessment must be determined upon.
    We claim that under the policy of the Ohio municipal improvement law, the necessity of an improvement must first be found and declared as a separate, antecedent, preliminary, and jurisdictional fact, and that this requirement is one of the instances wherein Article XIII, section 6, of our Constitution is being enforced for the purpose of restricting the power of assessment. As necessity is the foundation, and the only foundation, of all taxation or special assessment, and recognizing the peculiar liability of the assessing power to abuse, tbis section 2304 requires’ this preliminary finding of necessity as the very basis of all the proceedings to follow; and the passage of this resolution places the members of council upon record as having first assumed the responsibility of declaring this .necessity before, under section 2316, they order the improvement to be made.
    Reading these three sections 2304, 2315, 2316 together, we find our Ohio system of municipal improvements as in perfect accord with the requirements of the fourteenth amendment of the U. S. Constitution.
    If these three sections do not provide for the notice and opportunity, then the Ohio laws are defective, as not providing for “due process of law,” as required by the fourteenth amendment. Scott v. Toledo, 36 Fed. Rep., 385
    Assuming that the statutes require the passage of a resolution of necessity, under Revised Statutes 2304, as to all improvements where an assessment of private property is contemplated, we contend that such resolution is mandatory and jurisdictional in all its requirements; that it contemplates, an afiirmative and positive finding of the fact of necessity; that this fact of necessity must be found antecedent and preliminary to the city’s determination to make the improve-' ment; and in the matter of notice we contend that section 2304'provides fully for it as the basis of a hearing under section 2316, and thus makes our Ohio law in harmony with the fourteenth amendment, and that this section 2304, applies to all public improvements accompanied with a special assessment; and that this section is mandatory as being for the protection of assessment payers, and its passage is. required to put councilmen upon record, and thus insure an additional protection to the assessment payer. Walker v. State, 18 Ohio St., 85; Stephens v. Daniels, 27 Ohio St., 527; Fennelv. Kates, 19 Ohio St., 405; Boltons. Cleveland\ 35 Ohio St., 319; Upington v. Oviatt, 24 Ohio St. 232; Smith v. Toledo, 24 Ohio St., 126; Fdoyt v. Saginaw, 19 Mich.,. 39; McLausen v. Grand Forks, 43 N. W. Rep. 710; Baltimore v. Porter 18 Md., 284; Robinson, Tr., v. Logan, 31 Ohio St., 466; Rice v. Wellman, 3 C. C. 334; Cilrran v. Co., Comm’rs, 50 N. W. Rep. 237; Doughty v. Miller, 36 Cal. 83,' Dillon, M. C., 601; Quill v. Indianapolis, 23 N. B. R., 788.
    II. Whenever the character of the proceeding by which one is deprived of his property, whether judicial or administrative, and whether it takes the property directly or creates a charge or liability which may be the basis of taking it, the law directing the proceeding must provide for some kind of notice and offer the owner an opportunity to be heard, or the proceeding will want the essential ingredient of due process of law. San Matteo Co. v. R. R. 13 Fed. Rep. 722; Brown v. Denver, 3 Pacific, 459; Gatch v. Des Moines, 63 Iowa, 718; Stuart v. Palmer, 71 N. Y. 183; Ulman v. Baltimore, 20 Atl. R. 141; Sessions v. Crinkelton, 20 Ohio St., 349; R. R. v. Wagoner, 43 Ohio St., 75; 24 N. J. R. 662; 29 N. J. R. 475; 33 N. J. R. 39; 34 N. J. R. 451, 38 N. J. R. 95; 30 Mich. 201; Thomas v. Gain, 35 Mich., 155, 164; State v. Road Commissioners, 41 N. J. R. 83, 89; Campbell v. Dwiggins, 83 Ind. 473; Boerman v. St. Barbara, 4 Pacific R.; Griswold v. Davenport, 22 N. W. 904; Auer v. Dubuque, 22 N. W. R. 914; Welty on assessments, secs. 252, 287; Desty on taxation, 515; Welty on assessments, secs. 220, 221, 319; 13 Wallace. 506; 2 Kansas, 115.
    Want of jurisdiction can not be cured. Welty on assessments, sec. 231.; Cooley on taxation, 227; Peoples. Goldtree, 44 Cal. 325; Cooley on taxation, 2'27; Revised Statutes 5848; Cooley on taxation, 536; Stephens v. Daniels, 27 Ohio St., 527; Taylor v. Secor, 92 U. S., 575; Corry v. Campbell, 3 Cin. Raw Bull., 174; McMillan v. Anderson, 95 U. S. 37; Davidson~v. New Orleans, 96 U. S., 97; Arrowsmiih v. Har-moning, 118 U. S., 194; Hager v. Reclamation District, 114 U. S., 701; Wentz v. Hoagland, 114 U. S., 606; Spencer v. Merchant, 125 U. S., 345.
    Y. B. Hammel, solicitor of the village of Carthage, for defendant in error.
    I. Was it necessary to adopt a preliminary resolution, such as is contemplated in section 2304, of the Revised Statutes, and serve notice, before enacting the ordinance to appropriate?

      We contend that section 2304 does not apply to improvements in the nature of a widening or extension of a street.
    That there is not provision in the statutes requiring a resolution in such a case, and that therefore the adoption of a preliminary resolution is not a jurisdictional pre-requisite.
    The appropriation of private property is specially provided for in chapter 3, division 7, title XII of the Revised Statutes. Section 2235, provides for declaration of intention to appropriate. Section 2236, for application to court. Section 2247, orders as to payment. Section 2260, fixes the time at six months, within which the corporation shall determine whether or not it will take the property. Section 2642, in chapter 13, division 8, title XII, modifies section 2235, in that it provides that the declaration shall be by ordinance.
    There is no provision in chapter 3 for a resolution or notice. It is quite difficult to understand how section 2304 can be held to apply to, or in any manner affect, the provisions for appropriating private property, which are specially provided for in another chapter. Krumberg v. Cincinnati, 29 Ohio St., 69.
    The word “improvement” is used, we think, throughout the code in such a way that its real meaning in any one section, must depend upon its connection with the subject matter. In order to determine the meaning and application of the word “improvement,” as used in section 2304, let us read in connection with it, the preceding section 2303.
    The words, “subject to the restrictions herein contained,” as used in 2264, which is in the same chapter, will certainly cover the above requirements as well as the requirements of section 2304.
    Thus it would seem that the improvements contemplated •by section 2304, and to which its provisions apply, are improvements by construction, with cuts, fills, macadam, etc., and are not intended to embrace condemnations.
    It is perhaps true that the resolution prescribed in section '2304 is a necessary pre-requisite, and must be adopted, in all cases to which its provisions apply, and in such cases we ■concede that it may perhaps be jurisdictional. But when read in connection with, sections 2315 and 2316, there can be no mistaking the fact that the principal object is to give such notice as will result in the adjustment of damage claims.
    But it is argued that the owner of property abutting upon the land appropriated may be assessed, although none of the property appropriated was taken from him; he, therefore, not being a party to the condemnation proceedings. That is true, and it is equally true that the mere appropriation of property can in no wise damage such abutting property owner, while the subsequent improvement of the street by construction may; and of which improvement he would be entitled to notice under section 2304.
    Having determined these preliminary questions to-wit: That it will proceed with the improvement, and the time of making the judicial inquiry as to the damage cláims, the council is now ready to enact the improvement ordinance.
    We come now to the consideration of the fourth provision of the section, which has reference to the proceedings in chapter 3, or condemnations, to which counsel for plaintiffs in error so tenaciously cling, as the true solution of their theory of this case.
    This provision is so very plain that, either read alone or in connection with kindred sections, it is impossible that its. meaning can be misunderstood. It simply means that when an improvement by construction has been declared necessary, and notice served pursuant to 2304, and claims for damages-have been presented under 2315, and such claims have been considered by council, and it has been determined to proceed with the improvement, and that the damage claims shah be judicially inquired into, then the provisions in chapter 3, (condemnations), as to service of notice, time of empaneling the jury, etc., shall be used so far as applicable, provisions in detail not having been provided in the assessment chapter.
    We do not dispute the proposition that a municipal corporation must act within the authority which the legislature has granted it, either by express terms, or by fair implication. The provisions of the statutes governing the appropriation of private property are most explicit. Sections 2235 and 2642.

      The record of this case clearly reveals the fact that the provisions of these sections have been strictly complied with and observed, both in spirit and in-letter.
    The following cases hold that the preliminary resolution is not necessary, and not being required by statute the absence of a resolution did not invalidate the assessment. Fennell v. Kates, 19 Ohio St., 405; Krumberg v. Cincinnati, 29, Ohio St., 69; Bolton v. Cleveland 35, Ohio St., 819; Upingtonv. Oviatt, 24 Ohio St., 232; Scoville v. Cleveland, 1 Ohio St., 127.
    On the other hand the following cases hold that where the statute requires a resolution, its adoption is mandatory and jurisdictional. Welker v. Potter, 18 Ohio St., 85; Stephens v. Daniels, 27 Ohio St., 527; Hoyt v. Saginaiv, 19 Mich. 39.,
    II, Assessments to pay for local improvements have been ■uniformly upheld by this court, as being in harmony with the provisions of the Constitution of both the State of Ohio and of the United States under the power of taxation, Bonsall v. Lebanan, 19 Ohio 418; Scoville si. Cleveland\ Ohio St., 127; Hillsr. Higdon, 5 Ohio St., 243.
    The restrictions and limitations which the legislature has prescribed, and which are fully discussed in the first section of this brief, and their observance, secure to the property owner and tax-payer,- “Due process of Raw.” Reeves v. Treasurer of Wood Co., 8 Ohio St., 833; Northern Indiana R. R. Co., v- Connelly, 10 Ohio St., 159; Maloy v. Marietta, 11 Ohio St.. 636 Creighton v. Scott, 14 Ohio St., 438; Cleveland v. Wick, 18 Ohio St., 303; Corry v. Campbell, 25 ■Ohio St., 134; Lima v. Cemetery Association, 42 Ohio St. 128; R. R. Co. v. Wagner, 43 Ohio St., 75.
    The assessment sought to be enjoined in the case at bar is not a personal tax.
    There are two methods prescribed for the collection of assessments for local improvements, by the statutes of Ohio. Sections 2294, 2295 and 5848.
    ' If the corporation making an assessment for a local improvement, provide that the assessment shall be payable within a certain time, and that if the same be not paid, that suit be instituted pursuant to the provisions of section 2294, then the notice of such proceeding issued to the parties assessed, has been repeatedly held to fulfil the requirement of “Due process of Raw.” Davidson v. New Orleans, 96 U. S., 97; McMillan v. Anderson, 95 U. S. 37; Cony v. Campbell, 3 W. R. B. 174; Murdock v. Cincinnati, 25 W. R. B. 26.
   DicKMAN, J.

It is conceded in the case now under consideration, that before proceeding to condemn the property of the plaintiffs for the purpose of widening Taylor street, the council did not declare by resolution the necessity of such a street improvement, as set forth in section 2304 of the Revised Statutes, and hence gave no notice of its passage to the owners of the abutting property. It is therefore contended that the assessment to pay the cost and expenses of the improvement is void, and that the defendants should be enjoined from collecting or attempting to-collect any part of the same.

Section 2304 provides “When it is deemed necessary by a city or village to make a public improvement, the council shall declare, by resolution, the necessity of such improvement, and shall give twenty days written notice of its passage to the owners of the property abutting upon the improvement, or to the persons in whose names it may be assessed for taxation upon the tax duplicate, who may be residents-of the county, and publish the resolution not less than two-nor more than four consecutive weeks, in some newspaper published, and of general circulation in the corporation.”

There can be no doubt that the resolution declaring the necessity of the improvement is required in a street improvement by construction, as by grading, paving, macadamizing, changing grade, repairing, etc.; but, the question arises, is-such a resolution required in a street improvement by appropriation of property. The language, “when it is deemed necessary to make a public improvement,” is general in its nature; but the word “improvement,” as used in Subdivision I, of chapter 4, of Assessments in General, is not of uniform signification. In some sections of the statute the street improvement contemplated is of one kind, while in other sections provision is made for an improvement of a different character. Whether the term “improvement” refers to condemnation proceedings, or to the construction or repair of a street, must be determined by the connection in which it is used.

In our view, the preliminary resolution provided in section 2304 is not necessary in the appropriation of property for opening, widening, and extending streets. For the purpose of the improvement contemplated, 'the resolution of necessity is a part, and an essential part of the proceeding. But by reading section 2304 in connection with sections 2315 and 2316 of the Revised Statutes — being sections 563, 564 and 565, as revised, of the Municipal Code of 1869 (66 Ohio E. 245) — it will be apparent, that the preliminary resolution and notice thereof refer not to an appropriation deemed necessary to be made, but to an improvement of a constructive character, as by grading, raising or lowering the grade, to which damages are usually incident. Section 2315 provides, that an owner of a lot, or of land, bounding or abutting upon the proposed improvement, and claiming that he will sustain damages thereby, shall within two weeks after the service or the completion of the publication of the notice “mentioned in section 2304” file his claim for damages, with a general description of the property to which it is claimed injury will accrue. The resolution declaring the necessity of the improvement having been brought to the knowledge of the abutting owners, and the time limited for filing claims for damages having expired, by section 2316, the council is to determine whether it will proceed with the proposed improvement, or not; and whether the claims for damages shall be judicially inquired into before commencing, or after the completion of the improvement. The damages inquired into, it is obvious, have no relation to the assessment of compensation to the owner of lands appropriated, provided for in chapter 3, Division 7, Title XII of the Revised Statutes; and the reference in section 2315 to section 2304, would indicate the propriety of reading those two sections together, and construing them in the light of each other. If the damages referred to were such would be incident to an appropriation, they would be included in the compensation for the property appropriated and paid for before the property could be lawfully taken, and would not be inquired into after the taking, or “ after the completion of the improvement.” Railroad Co. v. Ball, 5 Ohio St., 568.

Again, if the preliminary resolution as to the necessity of the improvement is to be held applicable to condemnation proceedings, why, it may be inquired, should provision be made for giving notice of its passage to the owners of property abutting, and not to the owners of adjacent and contiguous or other benefited lots and lands in the corporation, which, under the statute, may also be assessed for the cost and expenses of the appropriation. And, it is evident upon examination, that the resolution has no reference to any assessment that may be subsequently made in connection with an improvement by condemnation of land, or to defray the cost and expenses thereof. The notice to be given is of the passage of the resolution declaring the improvement necessary, and not of any assessment which may be made to pay the cost of such improvement.

The authority to assess in proportion to benefits, or according to value, or by the foot front, for appropriating property for streets, is found in section 2264, of the Revised Statutes, and the assessments therein authorized are to be made as expressed therein “in the manner and subject to the restrictions herein contained. ” That section being in the same sub-division and chapter with section 2304, it is Contended that the preliminary resolution required by the latter section is a restriction that must be complied with, before there can be a legal assessment of the cost of property appropriated for a street improvement. The preliminary resolution does not operate as such a ■ restriction, and as we have before suggested, does not refer to an assessment to pay the cost and expenses of an improvement, but is mainly designed to give notice to the property owner claiming damages by reason of the improvement, to file his claim within a specified time, or be barred' from thereafter filing the same or receiving damages. ,

Restrictions upon assessments, such as those alluded to, may be found in sections 2270, 2271 and 2272, but not in section 2304.

But the question as to .the passage of a resolution declaring the necessity of the improvement should, we think, be taken as settled by the case of Krumberg v. Cincinnati 29 Ohio St. 69, which was an action brought to collect an assessment made on the property of the plaintiff in error therein, to pay for land taken by the city to widen a street. An objection was urged in the court below, in behalf of Krumberg, that the council did not declare by resolution the necessity of widening the street, and publish such resolution, as required by the statute. It was held by this court that, the resolution declaring the necessity of an improvement, which the council is required to pass and publish as provided in section 563 (now revised in section 2304), does not apply to the appropriation of private property to public use, such proceedings being otherwise specially provided for. Section 563 of the Municipal Code of 1869, reads: “When it shall be deemed necessary, by any city or incorporated village, to make any public improvement not otherwise specially provided for, it shall be the duty of the council to declare, by resolution, the necessity of such improvement, and to publish such resolution,” etc. The words, “not otherwise specially provided for,” are omitted in section 2304. But, the fact remains as before the revision of section 563, that a public improvement by the condemnation of private property is still specially provided for, and the retention of those words in-the Revised Statutes might well have been deemed unnecessary, in view of the patent fact of ample provision elsewhere in the statutes for a public improvement of that character.

And if it be contended, that by reason of, the broad signification of the words “public improvement,” in section 2304, the resolution of necessity is to be considered applicable to condemnation proceedings, the special pi ovisions on the subject-matter in chapter 3, on the appropriation of property, will control. In Ohio v. McGregor, 44 Ohio St. 628, it is said: “The courts presume an intention in the legislature to be consistent in the making of laws; and also to have had a purpose in each enactment and all its provisions. Special circumstances often create a necessity for appropriate special provisions, differing from the general rule upon the same subject; and so, where such provision's are found in a statute, different from the general provisions that would apply to the case, the courts must assume that the special provisions were made for adequate reasons, and give them effect by construing them as exceptions to the general rule contained in the general provisions of the statute.”

Furthermore, it is urged in behalf of the plaintiffs in error, that in condemnation, proceedings where assessments are on the foot front plan, as in the case at bar, our laws provide for no notice of an assessment apart from section 2304; that sections 2277 and 2278, of the Revised Statutes, provide only for notice of assessments in proportion to benefits; and that, therefore, if there is no resolution declaratory of the necessity of the improvement, with notice thereof to the owners of the abutting property, in accordance with section 2304, and their property is nevertheless assessed for the cost of the improvement, there will be a taking of property “without due process of law,” and a violation of section 1 of the Fourteenth Amendment of the Constitution of the United States, which provides, that no state shall “deprive any person of life, liberty or property without due process of law.”

Due process of law implies a due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights. If the validity of an assessment is called in question, an opportunity must have been given to resist it, either by allowing a hearing before the imposition thereof, or by providing for an appeal to a court of law afterwards. But as said in McMillen v. Anderson, 95 U. S. 37; it is not, and never has been considered necessary to the validity of a tax, that the party charged should have been present, or had an opportunity to be present, in some tribunal when he was assessed. In that case it was held, that a statute which gives a person against whom taxes are assessed a right to enjoin their collection, and have their validity judicially determined,-is due process of law, notwithstanding be is required, as in other injunction cases, to give security in advance. In Davidson v. New Orleans, 96 U. S. 97, it was said by Mr. Justice Miller: “Whenever, by the laws of a state, or by state authority, a tax, assessment, servitude, or other burden is imposed upon property for the public use, whether it be for the whole state or of some more limited portion of the community, and those laws provide for a mode of confirming or contesting the charge thus imposed, in the ordinary courts of justice, with such notice to the person, or such proceeding in regard to the property as is appropriate to the nature of the case, the judgment in such proceedings cannot be said to deprive the owner of his property without due process of law, however obnoxious it may be to other objections. * * * * It is not possible to hold that a party has, without due process of law, been deprived of his property, when, as regards the issues affecting it, he has, by the laws of the state, a fair trial in a court of justice, according to the modes of proceeding applicable to such a case.” These principles have been reaffirmed in the opinion of Mr. Chief Justice Fuller, in Walston v. Nevin, 128 U. S. 578.

The inquiry is suggested, what is the remedy by which, in Ohio, the property owner may test the illegality of an assessment? By Section 5848 of the Revised Statutes, “Courts of common pleas and superior courts shall have jurisdiction to enjoin the illegal levy of taxes and assessments.” An opportunity is here-afforded to establish the invalidity of the tax or assessment; and with such privilege, if judgment is rendered against the property owner in the suit, it cannot be properly said that his rights of property have been determined without due process of law or judicial investigation. Tone v. Columbus, 39 Ohio St. 301, 302; Stephan v. Daniels, 27 Ohio St. 536: Steese v. Oviatt, 24 Ohio St. 253. Between the passage of the condemnation and assessment ordinances and an advertisement of a tax sale, ample time elapses, and ample notice of the proceedings to appropriate and assess is provided for to enable the owner to go into court, and contest the assessment by application for injunction.

If special assessments are not paid by tbe time stipulated in the ordinance providing for the same, they may be recovered by suit, or the lien therefor may be enforced in the name of the corporation against the property owners. Revised Statutes, § § 2285,2286,2294. And in a suit to recover the assessment or to enforce the lien therefor, the owner of the property assessed may set up in defense the illegality of the assessment. In Murdock v. Cincinnati, 25 Weekly Raw Bulletin 26, U. S. Circuit Court, S. D. O., it was said by JacesoN, J., “It appears that the city of Cincinnati is now proceeding by civil suit in the state courts, against complainant, to collect the assessment in question. To that suit complainant may interpose any and all defenses going either to the validity or regularity of such assessments. Such suit gives him a full opportunity to be heard, and affords him the privilege of presenting every objection that can possibly be made, either under the Constitution of the United States, or under the Constitution and laws of Ohio, to the validity of the assessment. It cannot be questioned that the judgment which may be rendered against complainant in said suit, will constitute “due process of law.” If the owner of assessed property may have the benefit of the law of the land or due process of law, in a suit against him by the corporation making the assessment, he may also have the benefit in a suit by himself against the corporation, wherein the same questions can be determined.

In the case, Central Ohio Railroad Co. v. The City of Columbus, decided by this court, without report, Decémber 17,1889, (23 Weekly Raw Bulletin 3), and referred to by counsel, the original action was brought by the city to recover an assessment upon the land of the company, for a street improvement by grading, paving and graveling. It was contended by the company, that the notice provided in section 2304 had no reference to any assessment that might be subsequently made in connection with the improvement, or to the defrayal of the cost and expenses thereof, and that the assessment had therefore been made upon the property of the defendants without notice, and was a taking of their property without due process of law. But this court affirmed the judgment of the circuit court, and found no invasion of the constitutional rights of the railroad company.

In connection with the case at bar, we have examined the two cases, The City of Cincinnati v.J. G. Rademacher, begun in the Court of Common Pleas - of Hamilton County, to enjoin an assessment to pay for opening Burns street, and the case, The City of Cincinnati et al. v. Lars Auderson, Executor, commenced in the Superior Court of Cincinnati,to enjoin an assessment to pay for widening Ravine street. In the first case, we find no error in the judgment of the court of common pleas, and are of opinion that the circuit court erred in reversing the judgment of that court as to the third cause of action set forth in the petition below. In the second case, in which there was a condemnation of land to widen Ravine street, we have considered the question of a preliminary estimate of the probable cost of the improvement, and of a recommendation by the Board of Public Affairs, and of the passage of a resolution declaring the necessity of widening Ravine street, and we find that the superior court in general term erred in reversing the judgment of the superior court in special term. In the two cases judgment should be rendered in accordance with such findings.

In the case at bar, our conclusion is, that the judgment of the circuit court should be affirmed.

ftdgment accordingly.