the Salt Co., being the owner of the land, sub- | ject only to the easement, has the right to the use thereof in any manner not inconsistent with the easement reserved. If then it is possible for it to cross the entry of plaintiff in the manner proposed, without destroying or substantially interfering with his use of the same, its right to do so is beyond question; and, if such right exists, we cannot see that the defendant's reason for making the crossing, whether for the purpose of mining coal in its own tract or of obtaining coal from lands lying to the east, is a subject for the court's consideration. These are the principles applicable to rights of way upon the earth's surface and we are not aware that they lose their application where such rights of way happen to be underground.

It is claimed by plaintiff that it is impossible to cross his entry, by another entry at the same level, without rendering his right of way useless and the working of his veins impracticable; for the reason that the necessary breaking of the continuity of his entry and windway will destroy the draft of air, by which his veins are ventilated, and without which it is absolutely impossible to work them. He also says that the danger of collision between trains at the crossing would be very great, owing to the darkness of the entries and the impossibility of discerning the approach of a crossing train until the moment of contact. On the other hand it is claimed that these are not necessary consequences of the proposed crossing; but, on the other hand, that, if the openings in the walls of plaintiff's entry and windway are closed with air-tight doors, which shall only be opened to admit the passage of trains, and then closed, the ventilation will not be interfered with, at least to any material degree; and that, by having a watchman constantly stationed at the point of crossing, all danger of collision will be avoided.

In support of these several claims a large amount of testimony has been taken, all of which is before us, and all of which we have examined with care.

We are satisfied that the crossing of the entries, if properly made by defendant, all reasonable means being used by it to prevent injury to plaintiff's right of way, such as have been referred to, his use of his entry will not be seriously affected.

It will be observed that no charge is made that defendant proposes to cross plaintiff's entry in an improper manner; on the contrary the only claim of threatened injury is that defendant proposes to make the crossing. This crossing we think, as before said, the defendant has the right to make, provided it protects plaintiff, at its own expense, from all possible injury; and we have no reason to suppose that it intends to do otherwise. These being the issues before the district court we think that court was right in dismissing plaintiff's petition and refusing an injunction. No injury was threatened. Should the defendant, in effecting such crossing, fail to use all proper means to protect the rights of

1. The creditors of an estate are entitled to have 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 order of a competent court. It is no bar to an action by an administrator to sell land to pay debts, that the heir has, without an order of court, sold the same at private sale and applied the proceeds in satisfaction of preferred claims.

2. An order of sale of real estate to pay debts, made by the court of common pleas on a petition which states facts sufficient to warrant such an order, will not be reversed for want of a journal entry showing that the facts stated in the petition were found to be true. In such a Case the reviewing court will presume that the judgment was founded on proper proof.

3. If an heir, to whom lands descend subject to the debts of his ancestor, sells the same with covenants of general warranty at private sale, without administration on his ancestor's estate, to a bona fide purchaser who applies the purchase money to discharge liens thereon created by the ancestor, and to the payment of preferred claims, such purchaser is in equity entitled, in the distribution of the purchase money, to be subrogated to the rights and equities of the holders of such claims.

4. In a proceeding to sell land to pay judgment creditors pending in the court of common pleas, it is competent for the heir, who still retains an interest in the subject matter, by cross-petition to attack such judgments on the ground of fraud.

5. A sale of the real estate by the heir with covenants of general warranty, before the commencement of proceedings to sell the same to pay debts, where the purchase money is applied to the payment of preferred claims thereon, does not thereby divest himself of such an interest in the subject matter, so as to defeat his right to file such cross-petition, and to protect his vendees.

6. If the allegations of the cross-petition implicates the administrator, as well as the judgment creditors in fraudulently obtaining such judgments, they are against the heir, united in interest as to the subject matter of the controversy.

88

7. On error by the heir to reverse a judgment dismissing such cross-petition, service upon the administrator within the time fixed for the commencement of such proceedings, saves the action as to his co-defendants so united in interest, though not served within that time.

Error to the District Court of Greene County. The following is a statement of facts so far as is necessary to present the points decided.

James E. Hawes, as administrator of Daniel Sidener, filed a petition in the Court of Common Pleas of Greene County, to sell lands to pay debts

of his intestate. Mary Sidener, who was sole heir, Clements and Wetherholts and William Law, her vendees were the defendants. He alleges that Daniel Sidener died in 1864, having neither widow nor children, nor any personal assets, but seized in fee of the land sought to be sold, lying in Greene County, to pay about $800 debts of the intestate.

It is averred, that said Mary Sidener, sister and sole heir of deceased, sold said land in 1875, to defendants, Clements and Wetherholts, and that she, with one Jane Sidener, her mother, conveyed the same by deed of general warranty, and that Clements and Wetherholts sold and conveyed the same to defendant, William Law, who is in possession under the title so derived.

The prayer is, "that the several rights, liens &c. of the above defendants be adjusted &c.; and that your petitioner may be ordered to sell real estate, and for such other relief as the facts proven may at the hearing of this cause warrant and justify."

The defendants answered separately. Mary Sidener admits that she is sole heir, and states that Daniel Sidener, at the time of his death, resided in Fayette County, Kentucky, but died in Greene County while there on a visit, that letters of administration, on his estate, were granted by the County Court of Fayette County to one Kauffman who discharged his duties and made full settlement of said estate in said court, that in 1865, he with this defendant, came to Ohio, and contracted to sell said land to Clements and Wetherholts, for $1,800, which was paid as follows, $1,185 to satisfy a purchase money mortgage, made by Daniel Sidener, and the balance was used to defray certain debts which by law are preferred. She also sets up the fact, that Daniel Sidener was indebted to her some $1,200. the purchase money of land she sold to him in Kentucky. Her prayer is that the petition be dismissed.

A demurrer to this answer was sustained. Clements and Wetherholts filed an answer and cross-petition, claiming to be bona fide purchasers of said land, and averred that they applied the purchase money to the discharge of said mortgage, the payment of taxes, funeral expenses and other preferred debts. They insist on the validity of their title, and admit the sale to Law who is in possession.

Their prayer is, that plaintiff be denied the relief he asks, that the title derived from Mary Sidener be declared valid, and that they have such other relief as in equity they are entitled to.

William Law sets up his title and possession in good faith, and that he has made permanent and valuable improvements worth $650, and prays for proper relief.

At the November term, 1869, the cause came on for hearing on the petition and said answers and cross-petitions, and the court found that none of them constituted a defense to the action, and proceeded to order a sale of the real estate. At the same time, all questions concerning distri

bution of the proceeds of sale, and all issues that may be raised on the cross-petitions, were reserved for further consideration, with leave to plaintiff to reply thereto.

Replies were filed putting in the issue the claims of Clements and Wetherholts, and William Law, and of Mary Sidener.

Such proceedings were had under the order of sale, that the land was sold to said Law for $2,132.52. $2,132.52. The sale was confirmed January 4,1871, and the administrator was ordered to make him a deed, but no order was made respecting the disposition of the purchase money.

February 4, 1872, Mary Sidener, by leave, filed an amended answer and cross-petition. She states that Daniel Sidener died November 13th, 1864, while on a visit to a family of his manumitted slaves, whom he had settled in Greene County. The family consisted of the mother and two minor children, John and Mary Sidener, jr. She relates the settlement of the estate of Daniel Sidener in Fayette County, Kentucky, with full knowledge of said children, and alleges that neither of these minor children had any claims against the same, and yet they are the only parties that are making claims. against the estate, and that it was at their instance that plaintiff was appointed administrator in Greene County. She charges that these children have fraudulently conspired with others unknown, to cheat and defraud said estate, and have presented false and fraudulent claims against the same for services to said Daniel Sidener, and that plaintiff well knowing their fraudulent character, by carelessness and negligence, has suffered them to be referred to arbitrators, and to be determined on false and ex parte evidence, all for the purpose of defrauding said estate, by means of which neglect and carelessness, the claim of John Sidener for $750 has become a judgment of the court which he has assigned to John Little without consideration.

A second defense is, in substance, the same as the original answer and cross-petition as to the full settlement of the estate under the Kentucky administration.

The prayer is, that said John Sidener and his assignee, John Little, and Mary Sidener, jr., be made defendants, the judgment against said estate, in favor of John and Mary, be set aside, and for all other proper relief.

On the 20th of February, 1871, said John Sidener, John Little and Mary Sidener, jr., filed a joint demurrer to said answer and cross-petition, on the ground that it did not state facts sufficient to entitle said Mary Sidener to the relief prayed for, nor to constitute a cause of action against them, and on the further ground that there was a misjoinder of causes of action.

The plaintiff neither demurred nor replied, and as to him, this answer and cross-petition stands as upon default.

On the day this demurrer was filed, it was submitted to the court and sustained, and thereupon judgment was rendered against Mary Sidener and in favor of plaintiff, for all the costs made by

By force of such lease the right to the use of the road passed from the lessor to the lessee, according to such terms and conditions with respect to the use as are proper in a lease, but it seems clear that nothing else passed. In Pennsylvania it is said, "that the lessee is the assignee for a term or period of the lessor -his bailift to hold possession for him." Penn. R. Co v. Sly, 65 Pa. St. 205. In case of consolidation by the lessee with ano therrailroad company, the rights of the lessee under that lease, passed to the new company; but the corporation thus leasing its road retained unimpaired its corporate existence, powers and privileges, except as affected by the agreement for such use, and among the powers so retained by the lessor was that of consolidation. In other words, the power to take a lease does not imply a power to consolidate, nor does the power to consolidate imply a power to lease, but the powers are distinct and independent. Evidently that was the view taken by the parties when the lease to the Cleveland, Columbus, Cincinnati and Indianapolis Railway was executed, as will appear from the extracts from that instrument quoted in this opinion, and I am unable to see that it is not a perfectly fair interpretation of the statute. While the connection is formed and only exists in this case by lines of road of the lessors, and while there can be no consolidation unless the companies whose roads form the connection are consolidated, it is equally true that there is no consolidation as to these lessor companies in law or fact. Moreover, the statute, which makes ample provision for the protection of the stockholders of the consolidating companies, makes none with respect to the stockholders of the lessor companies; nor is there any word, as I read the provision in relation to consolidation, which properly or naturally refers to lines held by lease. True, under the former as under the present statute, the power to consolidate may, in general, have been in obeyance in the lessor company; but it was the lessor's voluntary act if its power in this respect was suspended; and it is equally true that upon termination of the lease for any cause, the power to consolidate would revive with all its force.

Suggestion is made that the danger of defeating the consolidation by non payment of rent, or the like, and consequent forfeiture of the lease, was not greater than the danger arising from the foreclosure of a mortgage, which practically might have the same effect as such forfeiture. If we admit this to be true, it does not militate against the construction we have given to the statute. The real question is as to the meaning of the words of the statute,

"lines of road." In IIarkrader v. Leiby, 4 Ohio St. 602, 612, the judge delivering the opinion said that " a mortgage is now treated in both courts (law and equity) as a mere security for the debt, and the mortgagee is permitted to use the legal title only for the purpose of making effectual such security." But the title of a lessee is very different, and the road so leased to it is not its line of road, in the sense of the statute, but the road of the lessor company. Inded, if we are permitted to depart from the plain words of the statute, and determine that where the control of a railroad by another company is permanent in its character, such ownership is sufficient to satisfy the requirement, it is difficult to see why a company having no other than leased lines, or one having a permanent running arrangement with another, may not come within the provision. I am fully pursuaded that nothing of the sort was contemplated by the legislature

I have so far spoken in the main of the proper construction of the acts of 1848 and 1851. But, although certain changes have been introduced into the subsequent acts (3 Curwen, 1882, 1884; 3 Sayler, 1760, 1872; 4 Sayler 2950; Rev. Stats. §§ 3300, 3379), there is nothing in any of them leading to any other conclusion in this respect than the one stated. Indeed, it is a well settled principle, that where a statute has undergone revision, it should be construed as before, unless the new act plainly requires a change in the construction. Application has been given to this principle in cases where the change was very marked. Williams v. The State, 35 Ohio St. 174. And it is also a well settled rule that, it being of the very essence of a law that it be uniform and unchangeable, whatever was the meaning of a statute when first enacted, should be its meaning through all future time. Reed v. Evans, 17 Ohio, 128, 134. This, of course, is to be taken with the qualification that such statute, modified or controlled in its operation by a though unchanged in its language, may be subsequent statute. Slater v. Cave, 3 Ohio St. 80. But there is nothing in the present statutes requiring any different construction, in the

particular under consideration, than should have been placed on the former acts.

In holding that lines held by lease are not within the provisions as to consolidation found in section 3379, we give expression to that which seems to be the plain construction of our statute. But if we regarded the question as doubtful, the result should be the same; for it is a principle perfectly well settled, that where a statute granting corporate power admits of two probable but conflicting constructions, that construction should be given to it

ing railroad companies under Rev. Stats. ? 3381, which fails to show any place of residence of the directors of the new company, is fatally defective.

George K. Nash, Attorney General, B. H. Bristow, A. F. Perry, E. A. Ferguson, Converse, Booth & Keating, and R. C. Parsons for the State.

R. P. Ranney, Harrison, Olds & Marsh, S. Burke, W. B. Sanders and O'Conner, Glidden & Burgoyne, for the defendants.

OKEY, C. J.

George K. Nash, Attorney General, on October 25, 1881, filed in this court, a petition in quo warranto. The action is against William H. Vanderbilt and other persons named, and it is alleged in the petition that those persons, with others too numerous to be brought before the court, have usurped the franchise to be a body corporate, under the name of the Ohio Railway Company, and that they wrongfully claim to possess certain corporate franchises, powers and privileges. The prayer is for judgment ousting the defendants from exercising such franchises, powers and privileges. The record consists of the petition, answer, reply, and an agreed statements of facts.

The burden is on the defendants to show by what authority they claim to exercise such powers, and the order of trial is the same as if the cause was for hearing on testimony. Consequently, wehave held that under the statute (Rev. Stats. $$ 5190, 6760, 6772), the defendants were entitled to open and close in the argument.

The defendants claim to be such corporation, clothed with such powers and privileges, under authority of certain proceedings had in the months of July and September, 1881, whereby the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company, and the Cincinnati, Hamilton and Dayton Railroad Company, Ohio corporations, were consolidated into one corporation, under the corporate name of the Ohio Railway Company.

The Cleveland, Columbus, Cincinnati and Indianapolis Railway Company is a corporation, with a line of railroad extending in a north-west direction from Cleveland, in Cuyahoga County, to Springfield, in Clark county, a distance of one hundred and sixty-three miles; and the Cincinnati, Hamilton and Dayton Railroad Company is a corporation, with a line of railroad extending from Cincinnati, in Hamilton county, via Hamilton, in Butler county, to Dayton, in Montgomery county, Dayton being in a direction east of north from Cincinnati, and distant therefrom sixty miles. The authority to make the alleged consolidation is based by the defendants on section 3379 of the Revised Statutes, which is as follows: "When the lines of road of any railroad companies in this State, or any portion of

such lines, have been or are being so constructed as to admit the passage of burthen or passenger cars over any two or more of such roads continuously, without break or interruption, such companies may consolidate themselves into a single company."

As the southern terminus of the first named road is twenty-four miles from the northern terminus of the latter road, being the distance between Springfield and Dayton, it is not claimed by the defendants that the consolidation could be effected under authority of that section, if the power to consolidate can only be exercised where burden and passenger cars can pass from the road of one company to the road of the other, "continuously, without break or interruption." It is said, however, that it is not essential to a valid consolidation that such companies' own lines should be thus connected, but that where the consolidating companies, or either of them, holds from another railroad company a perpetual lease of its road, and such leased line is so constructed that cars may thus pass from the line of the lessee to the leased line, and from the latter line to the line of the other consolidating company, the latter company and such lessee may consolidate; in other words, that such leased line is embraced by the words of the section, "lines of road" of the consolidating companies.

As each of the consolidating companies is possessed of such leased lines, by means of which it is said such connection is made, the importance of this contention of the defendants is manifest, and hence it is proper to state more definitely the condition and situation of the several roads affected by this controversy.

The line of the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company, as already stated, extends from Cleveland to Springfield. This is by way of Galion, in Crawford county, and Delaware, in Delaware county. It also extends from the latter place to Columbus, in Franklin county; and another part of its line, extending from Galion to Indianapolis, Indiana, crosses the track of the Dayton and Michigan Railroad Company at Sidney, in Shelby county. This constitutes the line of road which it owns.

The Cincinnati and Springfield Railway road extending from a point near Cincinnati Company is a corporation with a line of railto Dayton It also has by lease from the Cincinnati, Sandusky and Cleveland Railroad Company, a line of railroad extending from Springfield to Dayton. These two lines do not directly connect at Dayton, but by arrangement between the Cincinnati and Springfield Railway and other railroad companies, a connection is made between the two roads, by means of a road used in common by several railroad companies. In 1871, the Cincinnati and Springfield Railroad Company (party of the first part), the Cleveland, Columbus, Cincinnati and Indianapolis Railway Company (party of the second part), and the Lake Shore and Michigan Southern Railway Company (party of the third part), executed an instrument in writing, called by the defendants a

were before the court, but if it did proceed, the judgment would be voidable, and not void for want of jurisdiction. Douglas v. Massie, 16 Ohio, 371.

We are of opinion however, that there was such unity of interest between defendants served, and those not served, as to prevent the statute of limitations running as to all.

The controversy related to the distribution of a fund arising from a sale of the land.

The administrator held this fund in trust for the parties entitled thereto. He is charged with colluding with his co-defendants John and Mary Sidener, jr., to defraud the estate.

Mary Sidener and her vendees are claimants of this fund, setting up their equities thereto. A judgment in her favor is against the claims of the administrator and these judgment creditors, and they are all united in interest in the judgment rendered in their favor sustaining the demurrer to the cross-petition, filed February 20, 1871.

It is to their interest to maintain the judgment of the common pleas, holding that the answer and cross-petition did not entitle Mary Sidener to any relief. They are so united that it would be impossible to render any judgment against Hawes, administrator, which would not affect the right of his co-defendants, the judgment creditors. For this reason we think the proceeding in error was commenced within the time, service having been made on the administor within the three years, the time then allowed for commencing such action. Buckingham v. Commercial Bank, 21 Ohio St. 131.

II. It is also assigned as error that the court of common pleas erred in ordering and confirming the sale.

At the time this was done, the amended answer and cross petition of Mary Sidener had not been filed. The petition on its face, was sufficient, if true, to authorize an order of sale. In the original answer and cross-petition the validity of the debts alleged in the petition were not disputed.

The only defence then before the court was, that the estate had been fully administered in Kentucky, and that this land had been sold and conveyed by the heir, with the consent of the Kentucky administrator, and the proceeds applied to preferred debts.

This sale by the heir, was no bar to the judicial sale to pay valid debts of the ancestor. The creditors had the right to a public sale under an order of court. This, the court ordered, reserving all rights and equities arising on distribu

tion.

As the pleadings then stood, there was no error in ordering the sale.

III. Again, it is urged, that there is no special finding of the truth of the allegations of the petition, as a predicate of such an order.

The action came under the provisions of the code, and was in a court of general jurisdiction. It will therefore be presumed that such proof was made as will support the judgment, the al

legations of the petition being sufficient to warrant the judgment.

The judgment of the district court, dismissing the petition in error is reversed, the judgment of the common pleas sustaining the demurrer of February 20, 1871, overruled, said demurrer is overruled and cause remanded to the common pleas for further proceedings on said answers and cross-petitions.

[This case will appear in 37 O. S.]

TRESPASS UNDERGROUND-DAMAGES BY FLOODING.

SUPREME COURT OF OHIO.

EBENEZER WILLIAMS

vs.

THE POMEROY COAL COMPANY.

March 7, 1882.

The defendant, the lessee of a coal mine, worked over onto the land of an adjoining proprietor, and after taking out all the coal from the demised premises, surrendered his lease. The plaintiff having subsequently purchased the adjoining lands, in mining thereon, in ignorance of the overworking of the defendant, struck such working whereby the water from the abandoned mine flooded the plaintiff's mine. In an action by the plaintiff against the lessee to recover the damages caused by the flooding-Held:

1. That the cause of action against the defendant is for the trespass in working over his line, and that he is not chargeable with creating and maintaining a nui

Error to the District Court of Meigs County.

The original action was commenced by Ebenezer Williams, plaintiff in Error, against The Pomeroy Coal Company, the defendant in error, in February 1873, in the Common Pleas Court of Meigs County.

The facts as they appear in the record are substantially as follows:

Prior to January 30, 1868, one Nahum Ward owned in fee lot 1223, on the Ohio river, in Meigs county, and at the same time one Philip Hondesheldt was the owner in fee of lot 1222, and V. B. Horton was the owner in fee of lot 301, and the latter had a lease from Hondesheldt granting the right to mine all the coal under the south half of lot 1222. On August 10, 1858, Mr. Horton conveyed to the Pomeroy Coal Company, by his lease of that date duly executed, his right to mine and take away the coal under said two tracts of land. By the terms of said lease the Pomeroy Coal Company bound itself to "quit and surrender the premises" at the end of ten years, to wit: by August 10, 1868. The defendant entered upon the premises, and as early as 1862 had mined all the available coal thereon, and did, in that year, abandon the said lease, with the consent of the said Horton, and turned over to him the abandoned mines on said premises. The de