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the Salt Co., being the owner of the land, sub- plaintiff, or at any time fail to provide the same, ject only to the easement, has the right to the the courts are open to hear the complaint. Inuse thereof in any manner not inconsistent with deed we see no reason to doubt the power of the the easement reserved. If then it is possible for court to enforce all reasonable conditions on the it to cross the entry of plaintiff in the manner part of defendant, by mandatory injunction even proposed, without destroying or substantially in after the crossing has been completed and the terfering with his use of the same, its right to new entry used. do so is beyond question; and, if such right ex- Judgment affirined. ists, we cannot see that the defendant's reason Johnson, J., did not sit in above case. for making the crossing, whether for the purpose This case will appear in 37 O. S.) of mining coal in its own tract or of obtaining coal from lands lying to the east, is a subject for REAL ESTATE-ADMINISTRATOR'S SALE the court's consideration. These are the prin

TO PAY DEBTS-FORMER SALE BY ciples applicable to rights of way upon the earth's surface and we are not aware that they

HEIR AT PRIVATE SALElose their application where such rights of way

EFFECT OF. happen to be underground. It is claimed by plaintiff that it is impossible

SUPREME COURT OF OHIO. to cross his entry, by another entry at the same level, without rendering his right of way useless

MARY SIDENER and the working of his veins impracticable; for the reason that the necessary breaking of the

JAMES E. HAWES, ADM'R, ET AL. continuity of his entry and windway will de stroy the draft of air, by which his veins are

February 28, 1882. ventilated, and without which it is absolutely 1. The creditors of an estate are entitled to bave the impossible to work them. He also says that the

same settled in due course of administration, and in case

of a sale of real estate to pay debts, that it be made by ordanger of collision between trains at the cross- der of a competent court. It is vo bar to an action by an ing would be very great, owing to the darkness administrator to sell land to pay debts, that the heir has, of the entries and the impossibility of discern

without an order of court, sold the same at private sale ing the approach of a crossing train until the mo

and applied the proceeds in satisfaction of preferred

claims. ment of contact. On the other hand it is claimed 2. An order of sale of real estate to pay debts, made that these are not necessary consequences of the

by the court of common pleas on a petition which states

facts sufficient to warrant such an order, will not be reproposed crossing; but, on the other hand, that, if

versed for want of a journal entry showing that the facts the openings in the walls of plaintiff's entry stated in the petition were found to be true. In such a and windway are closed with air-tight doors,

case the reviewing court will presume that the judgment which shall only be opened to admit the passage

was founded on proper proof.

3. If an heir, to whom lands descend subject to the of trains, and then closed, the ventilation will debts of his ancestor, sells the same with covenants of not be interfered with, at least to any material general warranty at private sale, without administration degree; and that, by having a watchman con

on his ancestor's estate, to a bona fide purchaser who ap

plies the purchase money to discharge liens thereon crostantly stationed at the point of crossing, all ated by the ancestor, and to the payment of preferred danger of collision will be avoided.

claims, such purchaser is in equity entitled, in the disIn support of these several claims a large

tribution of the purchase money, to be subrogated to the

rights and equities of the holders of such claims. amount of testimony has been taken, all of 4. In a proceeding to sell land to pay judgment credwhich is before us, and all of which we have ex- itors pending in the court of common pleas, it is compeamined with care.

tent for the heir, who still retains an interest in the sub

ject matter, by cross-petition to attack such judgments We are satisfied that the crossing of the en- on the ground of fraud. tries, if properly made by defendant, all reason- 5. A sale of the real estate by the heir with coveable means being used by it to prevent injury to nants of general warranty, before the commencement of plaintiff's right of way, such as have been re

proceedings to sell the same to pay debts, where the

purchase money, is applied to the payment of preferred ferred to, his use of his entry will not be seri. claims thereon, does not thereby divest himselt of such ously affected.

an interest in the subject matter, so as to defeat his It will be observed that no charge is made that

right to file such cross-petition, and to protect his ven

dees. defendant proposes to cross plaintiff'e entry in 6. If the allegations of the cross-petition implicates an improper manner; on the contrary the only the administrator, as well as the judgment creditors in claim of threatened injury is that defendant

fraudulently obtaiving such judgments, they are as

against the heir, united in interest as to the subject matproposes to make the crossing.. This crossing tor of the controversy. we think, as before said, the defendant has the 7. On error by the heir to reverse a judgment dismissright to make, provided it protects plaintiff, at

jog such cross-petition, service upon the administrator

within the time fixed for the coinmencement of such proits own expense, from all possible injury; and ceedings, saves the action as to his co-defendants so we have no reason to suppose that it intends to united in interest, though not served within that time. do otherwise. These being the issues before the Error to the District Court of Greene County. district court we think that court was right in The following is a statement of facts so far as dismissing plaintiff's petition and refusing an is necessary to present the points decided. injunction. 'No injury was threatened. Should James E. Hawes, as administrator of Daniel the defendant, in effecting such crossing, fail to Sidener, filed a petition in the Court of Common use all proper means to protect the rights of | Pleas of Greene County, to sell lands to pay debts of his intestate. Mary Sidener, who was sole bution of the proceeds of sale, and all issues that heir, Clements and Wetherholts and William may be raised on the cross-petitions, were reLaw, her vendees were the defendants. He served for further consideration, with leave to alleges that Daniel Sidener died in 1864, hav- plaintiff to reply thereto. ing neither widow nor children, nor any Replies were filed putting in the issue the personal assets, but seized in fee of the land claims of Clements and Wetherholts, and Wilsought to be sold, lying in Greene County, to pay liam Law, and of Mary Sidener. about 8800 debts of the intestate.

Such proceedings were had under the order of It is averred, that said Mary Sidener, sister sale, that the land was sold to said Law for and sole heir of deceased, sold said land in 1875, $2,132.52. The sale was confirmed January 4, to defendants, Clements and Wetherholts, and 1871, and the administrator was ordered to make that she, with one Jane Sidener, her mother, him a deed, but no order was made respecting conveyed the same by deed of general warranty, the disposition of the purchase money. and that Clements and Wetherholts sold and con- February 4, 1872, Mary Sidener, hy leave, filed veyed the same to defendant, William Law, who an amended answer and cross-petition. She is in possession under the title so derived.

states that Daniel Sidener died November 13th, The prayer is, “ that the several rights, liens 1864, while on a visit to a family of his manu&c. of the above defendants be adjusted &c.; and mitted slaves, whom he had settled in Greene that your petitioner may be ordered to sell real County. The family consisted of the mother estate, and for such other relief as the facts and two minor children, John and Mary Sidener, proven may at the hearing of this cause warrant | jr. She relates the settlement of the estate of and justify"

Daniel Sidener in Fayette County, Kentucky, The defendants answered separately. Mary with full knowledge of said children, and alleges Sidener udmits that she is sole heir, and states that neither of these minor children had any thát Daniel Sidener, at the time of his death, claims against the same, and yet they are the resided in Fayette County, Kentucky, but died only parties that are making claims. against the in Grcene County while there on a visit, that estate, and that it was at their instance that letters of administration, on his estate, were plaintiff was appointed administrator in Greene granted by the County Court of Faytette County County. She charges that these children have to one Kauffman who discharged his duties and fraudulently conspired with others unknown, to made full settlement of said estate in said court, cheat and defraud said estate, and have presented that in 1865, he with this defendant, came to false and fraudulent claims against the same for Ohio, and contracted to sell said land to Clements services to said Daniel Sidener, and that plaintand Wetherholts, for $1,800, which was paid as iff well knowing their fraudulent character, by follows, $1,185 to satisfy a purchase money inort- carelessness and negligence, has suffered them to gage, made by Daniel Sidener, and the balance be referred to arbitrators, and to be determined was used to defray certain debts which by law on false and ex parte evidence, all for the purpose are preterred. She also sets up the fact, tha of defrauding said estate, by means of which Daniel Sidener was indebted to her some $1,200. neglect and carelessness, the claim of John Sidethe purchase money of land she sold to him in ner for $750 has become a judgment of the court Kentucky. Her prayer is that the petition be which he has assigned to John Little without dismissed.

consideration. A demurrer to this answer was sustained.

A second defense is, in substance, the same as Clements and Wetherholts filed un answer the original answer and cross-petition as to the and cross-petition, claiming to be bona fide pur- full settlement of the estate under the Kentucky chasers of said land, and averred that they ap- administration. plied the purchase money to the discharge of The prayer is, that said John Sidener and his said inortgage, the payment of taxes, funeral ex- | assignee, John Little, and Mary Sidener, jr., be penses and other preferred debts. They insist made defendants, the judgment against said eson the validity of their title, and admit the sale tate, in favor of John and Mary, be set aside, and to Law whosis in possession.

for all other proper relief. Their prayer is, that plaintiff be denied the re- On the 20th of February, 1871, said John Sidelief he asks, that the title derived from Mary ner, John Little and Mary Sidener, jr., filed a Sidener be declared valid, and that they have joint demurrer to said answer and cross-petition, such other relief as in equity they are entitled on the ground that it did not state facts sufficient to.

to entitle said Mary Sidener to the relief prayed William Law sets up his title and possession for, nor to constitute a cause of action against in good faith, and that he has made permanent them, and on the further ground that there was and valuable improvements worth $650, and a misjoinder of causes of action. prays for proper relief.

The plaintiff neither demurred nor replied, At the November term, 1869, the cause came on and as to him, this answer and cross-petition for hearing on the petition and said answers and stands as upon default. cross-petitions, and the court found that none of On the day this demurrer was filed, it was subthem constituted a defense to the action, and mitted to the court and sustained, and thereu pon proceeded to order a sale of the real estate. At judgment was rendered against Mary Sidener the same time, all questions concerning distri. and in favor of plaintiff, for all the costs made by

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By force of such lease the right to the use "lines of road.” In IIarkrader v. Leiby, 4 Ohio of the road passed from the lessor to the les- St. 602, 612, the judge delivering the opinion see, according to such terms and conditions said that“ a mortgage is now treated in both with respect to the use as are proper in a lease, courts (law and equity) as a mere security for but it seems clear that nothing else passed the debt, and the mortgagee is permitted to In Pennsylvania it is said, “that the lessee is use the legal title only for the purpose of makthe assignee for a term or period of the lessor ing effectwal such security.” But the title of -his bailift to hold possession for him.” a lessee is very different, and the road so leased Penn. R. Co v. Sly, 65 Pa. St. 205. In case to it is not its line of road, in the sense of the of consolidation by the lessee with ano therrail- statute, but the road of the lessor company. road company, the rights of the lessee under Inded, if we are permitted to depart from the that lease, passed to the new company; but the plain words of the statute, and determine that corporation thus leasing its road retained unim- where the control of a railroad by another paired its corporate existence, powers and company is permanent in its character, such privileges, except as affected by the agreement ownership is sufficient to satisfy the requirefor such use, and among the powers so retained ment, it is difficult to see why a company havby the lessor was that of consolidation. In ing no other than leased lines, or one having a other words, the power to take a lease does not permanent running arrangement with another, imply a power to consolidate, nor does the may not come within the provision. I am fully power to consolidate imply a power to lease, pursuaded that nothing of the sort was conbut the powers are distinct and independent templated by the legislature Evidently that was the view taken by the parties when the lease to the Cleveland, I have so far spoken in the main of the Columbus, Cincinnati and Indianapolis Rail

proper construction of the acts of 1848 and way was executed, as will appear from the 1851. . But, although certain changes have extracts from that instrument quoted in this

been introduced into the subsequent acts (3 opinion, and I am unable to see that it is not Curwen, 1882, 1884; 3 Sayler, 1760, 1872; 4 a perfectly fair interpretation of the stat

Sayler 2950; Rev. Stats. S S 3300, 3379), there ute. While the connection is formed and is nothing in any of them leading to any other only exists in this case by lines of road of the conclusion in this respect than the one stated. lessors, and while there can be no consolida- | Indeed, it is a well settled principle, that where tion unless the companies whose roads form

a statute has undergone revision, it should be the connection are consolidated, it is equally construed as before, unless the new act plainly true that there is no consolidation as to these requires a change in the construction. Applicalessor companies in law or fact. Moreover,

tion has been given to this principle in cases the statute, which makes ample provision for where the change was very marked. Williams the protection of the stockholders of the con

v. The State, 35 Ohio St. 174. And it is also solidating companies, makes none with respect

a well settled rule that, it being of the very esto the stockholders of the lessor companies;

sence of a law that it be uniform and unnor is there any word, as I read the provision changeable, whatever was the meaning of a in relation to consolidation, which properly or

statute when first enacted, should be its meannaturally refers to lines held by lease. True,

ing through all future time. Reed v. Evans, under the former as under the present statute,

17. Ohio, 128, 134. This, of course, is to be the power to consolidate may, in general,

taken with the qualification that such statute, have been in obeyance in the lessor. company; modified or controlled in its operation by a

though unchanged in its language, may be but it was the lessor’s voluntary act if its power subsequent statute. Slater v. Cave, 3 Ohio St. in this respect was suspended ; and it is equally true that upon termination of the lease for any

80. But there is nothing in the present statcause, the power to consolidate would revive

utes requiring any different construction, in with all its force.

the particular under consideration, than

should have been placed on the former acts. Suggestion is made that the danger of de- In holding that lines held by lease are not feating the consolidation by non payment of within the provisions as to consolidation found rent, or the like, and consequent forfeiture of in section 3379, we give expression to that the lease, was not greater than the danger which seems to be the plain construction of arising from the foreclosure of a mortgage, our statute. But if we regarded the question which practically might have the same effect as doubtful, the result should be the same; as such forfeiture. If we admit this to be true, for it is a principle perfectly well settled, that it does not militate against the construction we where a statute grauting corporate power adhave given to the statute. The real question is as mits of two probable but conflicting constructo the meaning of the words of the statute, tions, that construction should be given to it

ing railroad companies under Rev. Stats. & 3881, which As the southern terminus of the first named fails to show any place of residence of the directors of

road is twenty-four miles from the northern terthe new company, is fatally defective.

minus of the latter road, being the distance beGeorge K. Nash, Attorney General, B. H.

tween Springfield and Dayton, it is not claimed Bristow, A. F. Perry, E. A. Ferguson, Converse, by the defendants that the consolidation could Booth & Keating, and R. C. Parsons for the State.

be effected under authority of that section, if the R. P. Ranney, Harrison, Olds & Marsh, S. power to consolidate can only be exercised where Burke, W. B. Sanders and O'Conner, Glidden & burden and passenger cars can pass from the Burgoyne, for the defendants.

road of one company to the road of the other,

continuously, without break or interruption.' OKEY, C. J.

It is said, however, that it is not essential to a George K. Nash, Attorney General, on October valid consolidation that such companies' own 25, 1881, filed in this court a petition in quo lines should be thus connected, but that where warranto. The action is against William H. the consolidating companies, or either of them, Vanderbilt and other persons named, and it is al- holds from another railroad company a perpetual leged in the petition that those persons, with lease of its road, and such leased line is so conothers too numerous to be brought before the structed that cars may thus pass from the line court, have usurped the franchise to be a body of the lessee to the leased line, and from the corporate, under the name of the Ohio Railway latter line to the line of the other consolidating Company, and that they wrongfully claim to company, the latter company and such lessee may possess certain corporate franchises, powers and consolidate; in other words, that such leased line privileges. The prayer is for judgment ousting is embraced by the words of the section, "lines the defendants from exercising such franchises, of road” of the consolidating companies. powers and privileges. The record consists of

As each of the consolidating companies is the petition, answer, reply, and an agreed statements of facts.

possessed of such leased lines, by means of The burden is on the defendants to show by which it is said such connection is made, the what authority they claim to exercise such pow- importance of this contention of the defenders, and the order of trial is the same as if the

ants is manifest, and hence it is proper to state cause was for hearing on testimony. Conse- more definitely the condition and situation of quently, wehave held that under the statute (Rev. the several roads affected by this controversy. Stats. $$ 5190, 6760, 6772), the defendants were The line of the. Cleveland, Columbus, Cinentitled to open and close in the argument. cinnati and Indianapolis Railway Company, as

The defendants claim to be such corporation, already stated, extends from Cleveland to clothed with such powers and privileges, under

Springfield This is by way of Galion, in authority of certain proceedings had in the

Crawlord county, and Delaware, in Delaware months of July and September, 1881, whereby the Cleveland, Columbus, Cincinnati and Indi

county. It also extends from the latter place anapolis Railway Company, and the Cincinnati,

to Columbus, in Franklin county; and anHamilton and Dayton Railroad Company, Ohio

other part of its line, extending from Galion corporations, were consolidated into one corpora- to Indianapolis, Indiana, crosses the track of tion, under the corporate name of the Ohio Rail the Dayton and Michigan Railroad Company way Company.

at Sidney, in Shelby county. This constitutes The Cleveland, Columbus, Cincinnati and In- the line of road which it owns. dianapolis Railway Company is a corporation, The Cincinnati and Springfield Railway with a line of railroad extending in a north-west direction from Cleveland, in Cuyaboga County, road extending from a point near Cincinnati

Company is a corporation with a line of railto Springfield, in Clark county, a distance of one hundred and sixty-three miles; and the Cincin

to Dayton It also has by lease from the Cinpati, Hamilton and Dayton Railroad Company cinnati, Sandusky and Cleveland Railroad is a corporation, with a line of railroad extend- Company, a line of railroad extending from ing from Cincinnati, in Hamilton county, via Springfield to Dayton. These two lines do Hamilton, in Butler county, to Dayton, in Mont- not directly connect at Dayton, but by argomery county, Dayton being in a direction east rangement between the Cincinnati and Springof north from Cincinnati, and distant therefrom field Railway and other railroad companies, a sixty miles. The authority to make the alleged connection is made between the two roads, by consolidation is based by the defendants on sec

means of a road used in common by several tion 3379 of the Revised Statutes, which is as follows: “When the lines of road of any rail

railroad companies. In 1871, the Cincinnati road com papies in this State, or any portion of

and Springtield Railroad Company (party of such lines, have been or are being so constructed

the first part), the Cleveland, Columbus, Cinas to admit the passage of burthen or passenger

cinnati and Indianapolis Railway Company cars over any two or more of such roads continu-(party of the second part), and the Lake Shore ously, without break or interruption, such com

and Michigan Southern Railway Company panies may consolidate themselves into a single (party of the third part), executed an instru. company

ment in writing, called by the defendants a

V8.

sance.

were before the court, but if it did proceed, the legations of the petition being sufficient to warjudgment would be voidable, and not void for rant the judgment. want of jurisdiction. Douglas v. Massie, 16 Ohio, The judgment of the district court, dismissing 371.

the petition in error is reversed, the judgment We are of opinion however, that there was of the common pleas sustaining the demurrer of such unity of interest between defendants served, February 20, 1871, overruled, said demurrer is and those not served, as to prevent the statute of overruled and cause remanded to the common limitations running as to all.

pleas for further proceedings on said answers and The controversy related to the distribution of cross-petitions. a fund arising from a sale of the land.

[This case will appear in 37 O. S.] The administrator held this fund in trust for the parties entitled thereto. He is charged with TRESPASS UNDERGROUND-DAMAGES BY colluding with his co-defendants John and Mary

FLOODING
Sidener, jr., to defraud the estate.
Mary Sidener and her vendees are claimants

SUPREME COURT OF OHIO.
of this fund, setting up their equities thereto. A
judgment in her favor is against the claims of

EBENEZER WILLIAMS the administrator and these judgment creditors, and they are all united in interest in the judg

THE POMEROY COAL COMPASY. ment rendered in their favor sustaining the demurrer to the cross-petition, filed February 20,

March 7, 1882 1871.

The defendant, the lessee of a coal mine, worked over It is to their interest to maintain the judg- onto the land of an adjoining proprietor, and after taking ment of the common pleas, holding that the an

out all the coal from the demised premises, sur

rendered his lease. The plaintiff having subsequently swer and cross-petition did not entitle Mary purchased the adjoining lands, in mining thereon, in Sidener to any relief. They are so united that ignorance of the overworking of the defendant, struck it would be impossible to render any judgment

such working whereby the water from the abandoned

mino flooded the plaintiff's mine. In an action by the against Hawes, administrator, which would not

plaintiff against the lessee to recover the damages caused affect the right of his co-defendants, the judg- by the flooding-Held: ment creditors. For this reason we think the

1. That the cause of action against the defendant is

for the trespass in working over his line, and that he is proceeding in error was commenced within the not chargeable with creating and maintaining a nuitime, service having been made on the administor within the three years, the time then allow

2. In the application of the statute of limitations there

is no distinction between trespasses under ground and ed for commencing such action. Buckingham v. upon the surface; nor whether the canse of action is Commercial Bank, 21 Ohio St. 131.

known or unknown to the plaintiff within the time limII. It is also assigned as error that the court

ited by the statute.

3. The bar to a recovery in an action for the trespass of common pleas crred in ordering and confirm

includes all the cousequences resulting froin such trosing the sale.

pass, At the time this was done, the amended an- Error to the District Court of Meigs County. swer and cross petition of Mary Sidener had not The original action was commenced by Ebenbeen filed. The petition on its face, was suffi- ezer Williams, plaintiff in Error, against The cient, if true, to authorize an order of sale. In Pomeroy Coal Company, the defendant in error, the original answer and cross-petition the valid in February 1873, in the Common Pleas Court ity of the debts alleged in the petition were not of Meigs County. disputed.

The facts as they appear in the record are subThe only defence then before the court was, stantially as follows: that the estate had been fully administered in Prior to January 30, 1868, one Nahum Ward Kentucky, and that this land had been sold and owned in fee lot 1223, on the Ohio river, in conveyed by the heir, with the consent of the Meigs county, and at the same time one Philip Kentucky administrator, and the proceeds ap- Hondesheldt was the owner in fee of lot 1222, plied to preferred debts.

and V. B. Horton was the owner in fee of lot 301, This sale by the heir, was no bar to the judic- and the latter had a lease from Hondesheldt ial sale to pay valid debts of the ancestor. The granting the right to mine all the coal under the creditors had the right to a public sale under an south half of lot 1222. On August 10, 1858, Mr. order of court. This, the court ordered, reserv- Horton conveyed to the Pomeroy Coal Company, ing all rights and equities arising on distribu- by his lease of that date duly executed, his right tion.

to mine and take away the coal under said two As the pleadings then stood, there was no er- tracts of land. By the terms of said lease the ror in ordering the sale.

Pomeroy Coal Company bound itself to "quit and III. Again, it is urged, that there is no spec- surrender the premises" at the end of ten years, ial finding of the truth of the allegations of the to wit: by August 10, 1868. The defendant enpetition, as a predicate of such an order.

tered upon the premises, and as early as 1862 had The action came under the provisions of the mined all the available coal thereon, and did, in code, and was in a court of general jurisdiction. that year, abandon the said lease, with the conIt will therefore be presumed that such proof sent of the said Horton, and turned over to him was made as will support the judgment, the al- the abandoned mines on said premises. The de

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