fendant, while excavating the coal on lot 1222, mined over onto the adjoining lot 1223, from 36 to 39 feet. In 1864 the plaintiff bought lot 1223 of said Nahum Ward, and began operating the mines thereon. In June, 1868, the Workmen engaged in said plaintiff's mine tapped the water which had accumulated in the abandoned mine, and it flooded the mine of plaintiff.

The working over on lot 1223 was done as early as 1861, but was not known to the plaintiff until the water flowed into his mine as above stated.

On the trial the plaintiff among other things requested the court to charge the jury as follows:

That if the jury find that the water from the mine of the defendant commenced to flow into the mine of the plaintiff more than four years before the commencement of this action, and has continued to flow from that time up to the present time, and the plaintiff has continually from that time to this been compelled to pump the same out of his mine at a great expense in order to enable him to work his own mine, then he is entitled to recover all damages he has sustained within four years before the commencement of this action.

This instruction the court refused to give but instructed the jury, in substance, that if the flowage of water from the old mine of the defendant into the mine of the plaintiff commenced more than four years before the bringing of the suit, the right of action was barred by the statute of limitations.

The jury returned a verdict for the defendant, on which judgment was rendered. The district court on error affirmed the judgment. The present petition in error is prosecuted to reverse these judgments.

WHITE, J.

(12 Ad. & Ellis N. S. 601), Lord Denman uses the following language!

"The gist of the action, as stated in the declaration, is the keeping open and unfilled up an aperture and excavation made by the defendant into the plaintiff's mine. By the custom, the defendant was entitled to excavate up to the boundary of his mine, without leaving any barrier, and the cause of action, therefore, is the not filling up the excavation made by him on the plaintiff's side of the boundary and within their mine. It is not, as in the case of Holmes v. Wilson, 10 A. & E., 503, a continuing of something wrongfully placed by the defendant upon the premises of the plaintiff; nor is it a continuing of something placed upon the land of a third person to the nuisance of the plaintiff, as in the case of Thompson v. Gibson, 7 M. & W. 456. There is a legal obligation to discontinue a trespass or remove a nuisance; but no such obligation upon a trespasser to replace what he has pulled down or destroyed upon the land of another, though he is liable in an action of trespass to compensate in damage for the loss sustained. The defendant, having made an excavation and aperture in the plaintiff's land, was liable to an action of trespass; but no cause of action arises from his omitting to re-enter the plaintiff's land and fill up the excavation. Such an omission is neither a continuation of a trespass, nor a nuisance; nor is it a breach of any legal duty,"

The defendant in the present case had no estate or interest in lot 1222 further than the right to mine the coal therefrom. This he accomplished in 1862, and surrendered the premises. He had no authority from the owner of the fee, nor from Horton, his immediate lessor, to mine over into lot 1223; and at the time of the flowage of water from the abandoned mine into the mine of the plaintiff, he had for more than five years, ceased to have any interest in lot 1222 or any right of entry thereon.

If the claim of the defendant as to what constituted the cause of action is correct, the action clearly cannot be maintained. 1. For the reason that at the time of the commission of the trespass, the plaintiff was not the owner of the land upon which the trespass was committed; and (2) if he had been such owner, the action would be barred by the statute of limitations.

There is no distinction in the application of the statute of limitations between trespasses under grouud and upon the surface; nor whether the cause of action is known or unknown to the plaintiff within the time limited by the statute, Howk v. Minnich, 19 Ohio S. 466; Hunter v. Gibbons, 1 Hurl. & Nor. 459.

The question therefore is, whether the defendant, in addition to the liability for the trespass, is also liable for creating and continuing a nuisance. If he is so liable a recovery for the trespass would be no bar to subsequent actions for continuing the nuisance.

In Stephen's Commentaries (vol. 3, 499) a private nuisance is defined to be "anything

absorbed the high and independent power and duty of juries, and centering in themselves the functions of both judge and jury, have established a tyrannical power in the person of the judge, the most oppressive and dangerous exercise in a free land, and that would have met with resistance even to arms in the far off time of King John.

This power must be curbed, and juries by force of public sentiment made to understand that they are not mere automatons for the judge to direct in the determination of the facts as well as the law, and it is time the people, the press, and the bar, use their power to mould the true relations between the judge and jury as co-elements in the constitution of our courts, and firmly establish the proud and independent functions of twelve intelligent freemen when impanneled as a jury.

JOHN W. CANARY. BOWLING GREEN, O., March 9, 1882.

ADMITTED TO PRACTICE.

Fifteen applicants for admission to the Bar, of this State, were before the Supreme Court last week. The following obtained certificates:

Theodore Alvord, Conneaut.
Curtis E. McBride, Mansfield.
John Bender, Fostoria.

Curtis V. McBride, Mansfield.
Joseph Chaney, Newark.

George W. Fluckey, Mt. Gilead.
Carl A. Seiders, Tiffin.

O. W. Bair, Troy.

W. R. Sanborn, Piqua.

John A. Qualy, Columbus.

Adolph Goldfredrick, Circleville.

Andrew J. McClure, Kalida.

LXVTH GENERAL ASSEMBLY OF OHIO.

SNYPOSIS OF LAWS PASSED THIS SESSION.

March 2, 1882.

House Bill No. 120. To amend section 3786 of the Revised Statutes of Ohio authorizing trustees of religious denominations, on the parish or congregation becoming extinct, to take possession of the church property, and to lease, sell, invest or otherwise dispose of the same.

H. B. 46. To amend section 4969 of the Revised Statutes to read as follows:

Section 4969. If the judge of a court having but one judge, or if a quorum of the judges of any court having two or more judges, fail to attend at the time and place appointed for holding the court, or if, after the calling of the court, the judge, or a quorum of the judges are unable, on account of sickness, or from any other cause, to attend the daily sessions thereof, the sheriff shall adjourn the court from day to day, until the single judge attend or a quorum is convened, but if the judge or judges be not present within two days after the first day of the term, or if, after the court is called, the judge or judges are unable, on account of sickness, or from any other cause, to be present for ten days, the court shall stand adjourned for the term.

H: B. 82. To regulate the construction, enlargement, changes in, conduct and management of water works

in cities having a population exceeding eight thousand and not exceeding ten thousand, according to the Federal census of 1880, or in July of any year.

H. B. 132. An act to authorize the trustees of Miami township in Logan County, to levy a tax on the Quincy precinct of said township, and issue bonds for the purchase of cemetery grounds and the improvement thereof. H. B. 49. To amend section 5164 of the Revised StatMarch 3, 1882.

utes to read as follows:

Section 5164. The trustees of each township and the councilmen of each ward, shall, on the second Tuesday of October, annually, select 'of good, judicious persons having the qualifications of an elector, and not exempt by law from serving as jurors, the number of persons designated in the notice to be returned for jurors therefrom, and shall make a list thereof, and deliver the same to the judge of election, who returns to the clerk of the court, the poll-book of election, and such judge of election shall deliver the list to the clerk at the time he returns the poll-book; and in selecting the jurors, if any person shall attempt, by request, or suggestion, to influence said officers, or any of them, to select or not select himself, or any other person or persons as aforesaid, he shall be deemed guilty of a misdemeanor, and upon conviction thereof, before any court of competent jurisdiction, shall be fined in any sum not exceeding fifty dollars, or imprisoned in the county jail not more than ten days or both, in the discretion of the court.

H. B. 161. Making appropriations for the last three quarters of the Fiscal year ending November 15th, 1882, and the first quarter of the fiscal year ending February 15th, 1883.

H. B. 41. Authorizing the Commissioners of Lawrence County to levy an additional tax for certain purposes. H. B. 80. To amend section 3977 of the Revised Statutes to read as follows:

Section 3977. The prosecuting attorney of the proper county, or in case of a city district, the city solicitor shall prosecute all actions which, by this title, may be brought against any member or officer of a school board, in his individual capacity, and shall act in his official capacity as the legal counsel of such boards or officers in all civil actions brought by or against them in their corporate or official capacity, but no prosecuting attorney or city solicitor shall be a member of the board of education; provided, that in counties having a county solicitor, such officer shall prosecute all actions which may be brought against any member or officer of a school board in his individual capacity, and shall do and perform all the duties herein required of the prosecuting attorney, as to schools, school boards, and officers of schools of the county, outside of said city; but for such services he shall receive additional compensation.

H. B. 145 Authorizing the city of Ironton to issue bonds, borrow money and levy a tax for the purpose of defraying the expenses incurred in suppressing the small pox.

H. B. 148. To amend section 5053 of the Revised Statutes to read as follows:

Section 5053. Where an heir or a devisee of a deceased person is a necessary party, and it appears by affidavit that his name and residence are unknown to the plaintiff, proceedings against him may be had without naming him, and the court, or a judge thereof, shall make an order respecting the publication of notice, but the order shall require not less than six weeks publication.

H. B. 223. To amend sdction 6046 of the Revised Statutes to read as follows:

Section 6046. Before receiving said inventory by the probate court, the executor or administrator shall take and subscribe an oath or affirmation before the probate judge or his deputy, a justice of the peace, or other officer authorized to administer oaths required or authorized by law, stating that such inventory is in all respects Just and true; that it contains a true statement of all the estate and property of the deceased which has come to the knowledge of such executor or administrator, and particularly of all money, bank bills, or other circulating medium belonging to the deceased, and of all just claims of the deceased against such executor or administrator, or other persons, according to the best of his knowledge. Such oath shall be endorsed upon or annexed to the inventory.

H. B. 106. To authorize the village of Milford, Cler mont County, to transfer certain funds.

which is least favorable to the existence of the power. In no case is this principle more distinctly asserted than in Straus v. Eagle Ins. Co., 5 Ohio St. 59.

We are told that other consolidations, based on such leased lines, have been made, and that the Secretary of State has received and filed the certificates of such consolidation, and furnished copies thereof. No doubt the practical construction which the statute has received in the Executive Department of the Government, may in some cases aid in its construction. Work v. Corrington, 34 Ohio St. 64, 75. But we are not advised that there has been such uniform usage in that particular as to afford aid in the interpretation of this statute, much less control its construction.

But there is another view of this case to which I assent and that view leads to the same result. It is in respect to the situation of these roads, and the relation they bear to each other, without special reference to the title by which they are held. It is admitted, "That for many years last past, a very large commerce has existed between the portions of the United States lying southerly, southeasterly and southwesterly of Cincinnati, on the one hand, and the regions conveniently reached by the commerce of Lake Erie, and of the great lakes connected therewith, on the other hand. That the course of this commerce has been such that goods, wares and merchandise in large amounts, have been brought to the city of Cincinnati by the transportation lines upon the Ohio River, and by the railroad lines converging at Cincinnati, and the same has been transported by the railroads running through the State of Ohio to points upon Lake Erie, and thence transported by the way of the lakes, and the railroads running from cities upon the lakes to the Atlantic Seaboard and the Northwestern States. That owing to the great competition existing between the transportation lines upon Lake Erie, the rates of transportation of merchandise from either Cleveland, Sandusky or Toledo to points upon the said great lakes, except Lake Erie, either easterly or westerly, from the said cities, have been generally the same to and one of such points, notwithstanding the difference as to distance in favor of either of

the said cities; so that merchandise going from either of said cities through the said lakes and destined to any point, either upon the Atlantic Seaboard or in the Northwestern States, or any intermediate point east of and including Buffalo, generally paid the same rates for transportation upon the lakes, whether they were shipped from either Cleveland, Sandusky or Toledo. That previous to the 8th day of July, 1881, there was an active competition between the aforesaid Cleveland, Columbus, Cincinnati and Indianapolis Railway Company and the aforesaid Cincinnati, Hamilton and Dayton Railroad Company in respect to the said transportation business from Cincinnati to points upon Lake Erie, and great rivalry existed as to the obtaining and conducting of such transportation business. That the said railroad companies respectively connected the said city of Cincinnati with the ports of Cleveland and Toledo on Lake Erie."

The Cleveland, Columbus, Cincinnati and Indianapolis Railway and the Cincinnati, Hamilton and Dayton Railroad, with their leased lines, constitute two great arteries of trade, both commencing on the Ohio river at Cincinnati, meeting at Dayton, and extending thence to Lake Erie, one terminating at Cleveland, and the other at Toledo. The Attorney General says, and the record supports the statement, that these roads are "for sixty miles lying parallel and near to each other." That

they are, indeed, in the largest sense, parallel and competing roads, seems to be beyond dispute, and it may be fairly inferred from the record that a leading object in making the consolidation was to destroy that competition. That being true, the lines of these roads are not, in my judgment, "so constructed as to admit the passage of burden or passenger cars over two or more of such roads continuously," within the proper meaning cf section 3379. That the mere physical ability to pass cars from one road to the other satisfies the statute, is a construction of it which is wholly inadmissible, for the provision requiring such connection would be without meaning. In imposing that restriction upon consolidation, the Legislature intended, not merely that the physical fact should exist, but that such consolidation should only be made for the very purpose of passing freight and passengers over both lines, or some material parts thereof, not necessarily in a direct or straight line, but continuously.

Counsel for the defendants insist that in construing statutes, regard must be had to the words. No doubt that is true; but it does not follow that regard is to be had to nothing else Mr. Bishop says that courts "do not close their eyes to what they know of the history of the country and of the law, of the condition of the law at a particular time, of the public necessities felt, and other like things." Bishop's Stat. Cr. § 77. In Logan v. Courtown, 13 Beav. 22, 29, it was said that in construing a statute, regard must be had to "the words in which it is expressed, applied to the facts existing at the time." In Brewer v. Blougher, 14 Peters, 178, 198, Taney, C. J., said: "It is undoubtedly the duty of the court to ascertain the meaning of the legislature from the words used in the statute, and the subject matter to which it relates; and to restrain its operation within narrower limits than its words import, if the court are satisfied that the literal meaning of its language would extend to cases which the legislature never designed to embrace in it." Cooley's Con. L. (4th ed.) 79; Maxwell on Stats. 16-25.

Having regard to the language of this statute, in the light of such aids as are here indicated, I am satisfied the legislature never intended that railroads situated as these are should be regarded as constructed for the carriage of freight and passengers continuously, in the manner contemplated by the section. Indeed, each of these consolidating companies. had a line for the carriago of freight and разsengers from Cincinnati to Lake Erie, "continuously, without break or interruption," and

perpetual management and control of the C. H. & D. Co. from Cincinnati to Toledo, and in legal effect was an extension of the line of the C. H. & D. road to Toledo- Each new line had for its terminus on the Ohio river, the city of Cincinnati, and on Lake Erie, one had Cleveland, the other Toledo. At the Southern terminus and to Dayton, they were parallel and competing for all freight and passengers to Lake Erie. At Toledo and Cleveland they were com petitors for business to Dayton and Cincinnati. Neither of these lines is as to the other a continuing line. By a consolidation they do not constitute one continuous line, but two parallel and competing lines.

If these lines can be consolidated, the new or consolidated company, does not then have one continuous line, but two lines, parallel in their general features, neither of which, as to the other, is a continuous line, nor is either as to the other an extension.

The intent of this section of the statute is, to authorize a consolidation, when the lines are so constructed as to admit the passage of burden or passenger cars over two or more of them continuously, i. e. the two lines so consolidated, will, each as to the other, be an extension, and provide for continuous transit under a single management and control, thus affording to the public, greater facilities for travel and business, "without break or interruption," and greater unity and economy of management. Continuity of transit and efficiency, responsibility and economy in the transaction of business, under a single management, are the objects to be accomplished. Consolidation, which thus promotes the convenience of the public, is for the public benefit and is authorized, while that which does not provide for continuity of transit without break or interruption, but combines parallel and competing lines, creates a monopoly, which is against the public policy of the State.

The statute is addressed to corporations having the capacity to accomplish the main object, the continuous transit, without break or interruption.

The lessor company of a given line, has neither capacity or power to do this. It has by a lease or contract of a permanent nature, divested itself of any power to furnish such transportation.

The franchise to maintain and operate a railroad over the leased line, passed with the tangible property, to the lessee company. It alone can furnish the desired transportation.

The franchise or power to consolidate must exist in the corporation having such lines as may be united, so as to furnish that continuity of transportation, which it was the purpose of the statute to provide for. A lessor company could not do this. A lessee company, having absolute control, during the life of the lessor company, can fully accomplish this object, and I see no reason why it may not consolidate when this continuity of transit will be provided, which was the primary object of the statute.

LONGWORTH, J.

I concur with my brethren that judgment of ouster should be rendered, but not upon the ground set forth in the first paragraph of the syllabus; and I agree with the opinion of Judge Johnson. I only desire to add one consideration to what has been said by him.

In construing a statute it is always well to consider the object to be attained by legislation. In this case it is evident that the object, (or at least one object), was to enable trains of cars to pass continuously without break or interruption over the lines of road of the companies desiring to become consolidated. As the lessee companies actually operate the roads, of which they alone have possession and control, they must certainly be the owners of such lines within contemplation of § 3379. A consolidation of lessor companies could accomplish no conceivable practical result, seeing that they do not operate the roads and never can, at least while the leases are in force. This drives me to the conclusion that the "lines of road of any railroad companies" mentioned in the statute refer to lines held under perpetual lease, where the lessee has sole possession and control of their operation, as well as to lines held and owned by title in fee simple. I concede that the title must exist in perpetuity, since the consolidated corporation will, in contemplation of law, endure for

ever.

This being true, it follows that the "lines of road" in question extend from Cincinnati to Cleveland, and Toledo, respectively; that they are competing and in their general features parallel; and their consolidation is open to the objections so well announced and discussed in the opinion of the Chief Justice and of Judge Johnson.

Digest of Decisions.

NEW YORK.

(Court of Appeals.)

VAN SCHOONHOVEN v. CURLEY ET AL. Oct. 4, 1881. Conversion-Negotiable Paper.-Defendants distilled certain whiskey and placed it in their warehouse, in April, 1875, as required by 3293 U. S. R. S., and gave the bond required, in which they bound themselves to pay the tax and remove the whiskey in one year. They issued a warehouse receipt, which stated that it was held subject to the order of J. G. & Co. At the expiration of the year the whiskey was withdrawn and shipped to J. G. & Co., who, after its receipt, and in June, 1876, for a valuable consideration, delivered to plaintiff the receipt and a bill of sale, which stated the whiskey was "in bond or tax paid." In an action to recover damages for conversion of the whiskey, Held that as the property was required by the provisions of the U. S. R. S. to be withdrawn within a year from date of entry, defendant's obligation to keep the whiskey ceased when the year expired, and plaintiff, having received the receipt after the year had expired, was chargeable with notice that defendants custody of the whiskey, as keepers of a government "distillery bonded warehouse," was ended, and was put on inquiry to learn what had become of it; that under the Kentucky Statute, making such receipts negotiable, plaintiff took it after maturity, subject to all latent equities between the parties.

Ohio Law Journal.

COLUMBUS, OHIO, : : MARCH 23, 1882.

A WORD TO OUR READERS.

One year ago we discovered that our experiment of publishing a law journal at the capital of the State, that would meet the approval of the legal fraternity, was an undoubted success. We learned also that our publication must put off the form and semblance of a newspaper and assume a bockish garb, and must likewise be enlarged to accommodate the matter naturally expected to fill an Ohio Law Journal.

Acting upon these discoveries, we did change the form of our paper and enlarge our borders, and that our course has met the approval of the profession, is amply evidenced by the fact that our paper is now a regular visitant to the hands of nearly two thousand of the best lawyers and judges in the State.

We have labored unremittingly and successfully to give to our patrons the regular weekly report of all cases decided by the Supreme Court and every opinion of that court as soon as written. This has been our primary intention; and in the great quantity of valuable matter we have published in addition thereto, will be found no mean secondary achievement.

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proof readers on brief printing, verify the citations

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CORRESPONDENCE.

EDITORS OHIO LAW JOURNAL:

A case was commenced in the Common Pleas Court, by the creditors of a father, to set aside for fraud a deed given by the father to his son, and also a deed from the son to a younger brother, a minor, conveying the same premises. By due process, a guardian ad litem was appointed by the court upon the application of plaintiffs, to defend for the minor. After the guardian ad litem had filed his answer, he was appointed the guardian in fact, withdrew his answer, and filed another answer signing it as guardian in fact. The