Page images
PDF
EPUB

fendant, while excavating the coal on lot 1222, (12 Ad. & Ellis N. S. 601), Lord Denman uses the mined over onto the adjoining lot 1223, from 36 following language: to 39 feet. In 1864 the plaintiff bought lot 1223 “The gist of the action, as stated in the declaof said Nahum Ward, and began operating the ration, is the keeping open and unfilled up an mines thereon. In June, 1868, the Workmen aperture and excavation made by the defendant engaged in said plaintiff's mine tapped the wat- into the plaintiff's mine. By the custom, the er which had accumulated in the abandoned defendant was entitled to excavate up to the mine, and it flooded the mine of plaintiff. boundary of his mine, without leaving any bar

The working over on lot 1223 was done as ear- rier, and the cause of action, therefore, is the ly as 1861, but was not known to the plaintiff not filling up the excavation made by him on until the water flowed into his mine as above the plaintiff's side of the boundary and within stated.

their mine. It is not, as in the case of Holmes On the trial the plaintiff among other things v. Wilson, 10 A. & E., 503, a continuing of requested the court to charge the jury as follows: something wrongfully placed by the defendant

"That if the jury find that the water from the upon the premises of the plaintiff; nor is it a mine of the defendant commenced to flow into continuing of something placed upon the land the mine of the plaintiff more than four years be- of a third person to the nuisance of the plaintfore the commencement of this action, and has iff

, as in the case of Thompson v. Gibson, 7 M. & continued to flow from that time up to the pres- W. 456. There is a legal obligation to disconent time, and the plaintiff has continually from tinue a trespass or remove a nuisance; but no that time to this been compelled to pump the such obligation upon a trespasser to replace what same out of his mine at a great expense in order he has pulled down or destroyed upon the land to enable him to work his own mine, then he is of another, though he is liable in an action of entitled to recover all damages he has sustained trespass to compensate in damage for the loss within four years before the commencement of sustained. The defendant, having made an exthis action.

cavation and aperture in the plaintiff's land, This instruction the court refused to give but was liable to an action of trespass; but no cause instructed the jury, in substance, that if the flow- of action arises from his omitting to re-enter the age of water from the old mine of the defendant plaintiff's land and fill up the excavation. into the mine of the plaintiff commenced more Such an omission is neither a continuation of a than four years before the bringing of the suit, trespass, nor a nuisance; nor is it a breach of the right of action was barred by the statute of any legal duty.” limitations.

The defendant in the present case had no esThe jury returned a verdict for the defendant, tate or interest in lot 1222 further than the right on which judgment was rendered. The district to mine the coal therefrom. This he accomcourt on error affirmed the judgment. The pres- plished in 1862, and surrendered the premises. ent petition in error is prosecuted to reverse these He had no authority from the owner of the fee, judgments.

nor from Horton, his immediate lessor, to mine WHITE, J.

over into lot 1223; and at the time of the flowThe decision of this case depends upon what age of water from the abandoned mine into the constituted the cause of action against the de- mine of the plaintiff, he had for more than five fendant, and when it accrued.

years, ceased to have any interest in lot 1222 or The claim of the plaintiff is that the cause of any right of entry thereon. action consists of a private nuisance caused by If the claim of the defendant as to what conthe excavation made by the defendant on lot stituted the cause of action is correct, the action 1223 when removing the coal under his lease clearly cannot be maintained. 1. For the reafrom the south half of lot 1222; and that the son that at the time of the commission of the cause of action is a continuing one and first trespass, the plaintiff was not the owner of the accrued when the water from the abandoned land upon which the trespass was committed; mine flowed over, into the mine of the plaintiff. and (2) if he had been such owner, the action

On the other hand, the claim of the defendant would be barred by the statute of limitations. is that the cause of action consisted of the tres- There is no distinction in the application of pass committed in making the excavation and the statute of limitations between trespasses unwas completed when the work was done and the der grouud and upon the surface; nor whether mine abandoned.

the cause of action is known or unknown to the In the first place, it may be observed that this plaintiff within the time limited by the statute, is not a case where the defendant has wrongfully Howk v. Minnich, 19 Ohio S. 466; Hunter v. entered upon the lands of the plaintiff and Gibbons, 1 Hurl. & Nor. 459. erected and maintained structures thereon. Nor

The question therefore is, whether the defendis it a case where structures have been erected ant, in addition to the liability for the trespass, and maintained on the lands of the defendant is also liable for creating and continuing a nuior of another to the nuisance or injury of the

If he is so liable a recovery for the tresplaintiff's premises. In these cases the wrong pass would be no bar to subsequent actions for may, by lapse of time, ripen into a right under continuing the nuisance. the statute of limitations, or by prescription. In Stephen's Commentaries (vol. 3, 499) a

In speaking to this point in Clagg v. Dearden, | private nuisance is defined to be "anything

sance.

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.
0. W. Bair, Troy.
W. R. Sanborn, Piqua.
John A. Qualy, Columbus.
Adolph Goldfredrick, Circleville.
Andrew J. McClure, Kalida.

in cities having a population exceeding eight thousand and not exceeding ten thousand, according to the Fed. eral 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 Stat

March 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, it 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, inay 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 80licitor 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 du. ties 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 5063 of the Revised Statutes to read as follows:

Section 5063. 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 witbout naming him, and the court, or a judge thereof, sball make an or. der respecting the publication of potice, but the order shall require not less than six weeks publication.

H. B. 223. To amend sdction 6048 of the Revised Statutes to read as follows:

Section 6048. 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 author. ized 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, Clar mont County, to transfer certain funds.

LXVTH GENERAL ASSEMBLY OF OHIO.

SNYPOSIS OF LAWS PASSED THIS SESSION.

March 2, 1882. House Bill No. 120. To amend section 8786 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 iwo 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 upable, 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 tbe term,

H: B. 82. To regulate the constructii n, onlargement, changes in, conduct and management of water works

which is least favorable to the existence of the they are, indeed, in the largest sense, parallel power. In no case is this principle more dis- and competing roads, seems to be beyond distinctly asserted than in Straus v. Eagle Ins. pute, and it may be fairly inferred from the Co., 5 Ohio St. 59.

record that a leading object in making the We are told that other consolidations, based consolidation was to destroy that competition. on such leased lines, have been made, and that That being true, the lines of these roads are the Secretary of State has received and filed not, in my judgment, "so constructed as to adthe certificates of such consolidation, and mit the passage of burden or passenger cars furnished copies thereof. No doubt the prac- over two or more of such roads continuously,tical construction which the statute has re- within the proper meaning of section 3379. ceived in the Executive Department of the That the mere physical ability to pass cars Government, may in some cases aid in its con- from one road to the other satisfies the statute, struction. Work v. Corrington, 34 Ohio St. is a construction of it which is wholly inad64, 75. But we are not advised that there has missible, for the provision requiring such conbeen such uniform usage in that particular as nection would be without meaning. In imto afford aid in the interpretation of this posing that restriction upon consolidation, the statute, much less control its construction. Legislature intended, not merely that the

But there is another view of this case to which I assent physical fact should exist, but that such conand that view leads to the same result. It; is in respect

solidation should only be made for the very to the situation of these roads, and the relation they bear purpose of passing freight and passengers over to each other, without special reference to the title by both lines, or some material parts thereof, not which they are held. It is admitted, “That for many necessarily in a direct or straight line, but years last past, a very large commerce has existed betweon tlie portions of the United States lying southerly,

continuously. southeasterly and southwesterly of Cincinnati, on the one hand, and the regions conveniently reached by the

Counsel for the defendants insist that in commerce of Lake Erie, and of the great lakes connected construing statutes, regard must be had to the therewith, on the other hand. That the course of this words. No doubt that is true; but it does commerce has been such that goods, wares and merchandise in large amounts, have been brought to the city

not follow that regard is to be had to nothing of Cincinnati by the transportation lines upon the Ohio else Mr. Bishop says that courts “do not River, and by the railroad lines converging at Cincinnati, and the same has been transported by the railroads run

close their eyes to what they know of the higning through the State of Ohio to points upon Lake Erie, tory of the country and of the law, of the conand thence transported by the way of the lakes, and the railroads running from cities upon the lakes to the Atlan

dition of the law at a particular time, of the tic Seaboard and the Northwestern States. That owing public necessities felt, and other like things. to the great coinpetition existing between the transportation lines upon Lake Erie, the rates of transportation of

Bishop's Stat. Cr. § 77.

In Logan v. merchandise from either Cleveland, Sandusky or Toledo Courtown, 13 Beav. 22, 29, it was said to points upon the said great lakes, except Lake Erie, either easterly or westerly, from the said cities, have been

that in construing a statute, regard must generally the same to and one of such points, notwith

be had to the words in which it is exstanding the difference as to distance in favor of either of the said cities; sò that merchandise going from either of

pressed, applied to the facts existing at said cities through the said lakes and destined to any

the time.” “In Brewer v. Blougher, 14 Peters, point, either upon the Atlantic Seaboard or in the North- 178, 198, Taney, C. J., said: “It is undoubtwestern States, or any intermediate point east of and including Buffalo, generally paid the same rates for trans

edly the duty of the court to ascertain the portation upon the lakes, whether they were shipped meaning of the legislature from the words from either Cleveland, Sandusky or Toledo. That previous to the 8th day of July, 1881, there was an activo

used in the statute, and the subject matter to competition between the aforesaid Cleveland, Columbus, which it relates; and to restrain its operation Cincinnati and Indianapolis Railway Company and the within narrower limits than its words import, aforesaid Cincinnati, Hamilton and Dayton Railroad Company in respect to the said transportation business

if the court are satisfied that the literal meanfrom Cincionati to points upon Lake Erie, and great ing of its language would extend to cases rivalry existed as to the obtaining and conducting of such transportation business. That the said railroad

which the legislature never designed to emcompanies respectively connected the said city of Cincin- brace in it.” Cooley's Con. L. (7th ed.) 79; nali with the ports of Cleveland and Toledo on Lake Erie."

Maxwell on Stats. 16-25. The Cleveland, Columbus, Cincinnati and Having regard to the language of this statIndianapolis Railway and the Cincinnati, ute, in the light of such aids as are here indiHamilton and Dayton Railroad, with their cated, I am satisfied the legislature never inleased lines, constitute two great arteries of tended that railroads situated as these are trade, both commencing on the Ohio river at should be regarded as constructed for the carCincinnati, meeting at Dayton, and extending riage of freight and passengers continuously, in thence to Lake Erie, one terminating at Cleve- the manner contemplated by the section. Inland, and the other at Toledo. The Attorney deed, each of these consolidating companies General says, and the record supports the had a line for the carriago of freight and passtatement, that these roads are "for sixty miles sengers from Cincinnati to Lake Erie, "con: lying parallel and near to each other.” That

That tinuously, without break or interruption,” and

perpetual management and control of the LONG WORTH, J. C. H. & D. Co. from Cincinnati to Toledo, and I concur with my brethren that judgment of in legal effect was an extension of the line of the ouster should be rendered, but not upon the C. H. & D. road to Toledo- Each new line had ground set forth in the first paragraph of for its terminus on the Ohio river, the city of the syllabus; and I agree with the opinion Cincinnati, and on Lake Erie, one had Cleve- of Judge Johnson. I only desire to add one conland, the other Toledo. At the Southern ter- sideration to what has been said by him. minus and to Dayton, they were parallel and In construing a statute it is always well to competing for all freight and passengers to Lake consider the object to be attained by legislaErie. At Toledo and Cleveland they were com. tion. In this case it is evident that the object, petitors for business to Dayton and Cincinnati. (or at least one object), was to enable trains of Neither of these lines is as to the other a continuing cars to pass continuously without break or interline. By a consolidation they do not constitute ruption over the lines of road of the companies one continuous line, but two parallel and com- desiring to become consolidated. As the lessee peting lines.

companies actually operate the roads, of which If these lines can be consolidated, the new or they alone have possession and control, they consolidated company, does not then have one must certainly be the owners of such lines withcontinuous line, but two lines, parallel in their gen- in contemplation of g 3379. A consolidation of eral features, neither of which, as to the other, is lessor companies could accomplish no conceivaa continuous line, nor is either as to the other an ble practical result, seeing that they do not opeextension.

rate the roads and never can, at least while the The intent of this section of the statute is, to leases are in force. This drives me to the conauthorize a consolidation, when the lines are so clusion that the lines of road of any railroad constructed as to admit the passage of burden or companies” mentioned in the statute refer to passenger cars over two or more of them continu- lines held under perpetual lease, where the lessee ously, i. e. the two lines so consolidated, will, has sole possession and control of their operaeach as to the other, be an extension, and provide tion, as well as to lines held and owned by title for continuous transit under a single manage. in fee simple. I concede that the title must exment and control, thus affording to the public, ist in perpetuity, since the consolidated corporagreater facilities for travel and business," without tion will, in contemplation of law, endure foreconomy of management, continuity of transit this being true, it follows that the lines of and efficiency, responsibility and economy road” in question extend from Cincinnati to in the transaction of business, under a single Cleveland, and Toledo, respectively; that they management, are the objects to be accomplished. are competing and in their general features parConsolidation, which thus promotes the conven- allel; and their consolidation is open to the ience of the public, is for the public benefit and objections so well announced and discussed in is authorized, while that which does not provide the opinion of the Chief Justice and of Judge for continuity of transit without break or inter- Johnson. ruption, but combines parallel and competing lines, creates a mor:opoly, which is against the public policy of the State.

The statute is addressed to corporations having the capacity to accomplish the main object,

NEW YORK. the continuous transit, without break or interruption.

(Court of Appeals.) The lessor company of a given line, has

VAN SCHOONHOVEN v. CURLEY ET AL. Oct. 4, 1881. neither capacity or power to do this. It has by a lease or contract of a permanent nature, di

Conversion-Negotiable Paper:- Defendants distilled

certain whiskey and placed it in their warehouse, in vested itself of any power to furnish such trans- April, 1875, as required by 3293 U. S. R. S., and gave portation.

the bond required, in which they bound themselves to The franchise to maintain and operate a rail

pay the tax and remove the whiskey in one year. They

issued a warehouse receipt, which stated that it was held road over the leased line, passed with the tangi- subject to the order of J. G. & Co. At the expiration of ble property, to the lessee company. It alone the year the whiskey was withdrawn and shipped to J. can furnish the desired transportation.

G. & Co., who, after its receipt, and in June, 1876, for a

valuable consideration, delivered to plaintiff the receipt The franchise or power to consolidate must ex- and a bill of sale, which stated the whiskey was "in bond ist in the corporation having such lines as may or tax paid.” In an action to recover damages for conbe united, so as to furnish that continuity of quired by the provisions of the U.S. R. S. to be with

version of the whiskey, Held that as the property was retransportation, which it was the purpose of the drawn within a year from date of entry, defendant's obstatute to provide for. A lessor company could

ligation to keep the whiskey ceased when the year exnot do this. A lessee company, having absolute

pired, and plaintiff, having received the receipt after the

year had expired, was chargeable with notice that decontrol, during the life of the lessor company, fendants custody of the whiskey, as keepers of a governcan fully accomplish this object, and I see no ment “distillery bonded warehouse," was enited, and reason why it may not consolidate when this

was put on inquiry to learn what had become of it'; that

under the Kentucky Statute, making such receipts negocontinuity of transit will be provided, which tiable, plaintiff took it after maturity, subject to all was the primary object of the statute.

latent equities between the parties.

Digest of Decisions.

:

spoken in commendation of our undertaking; by Ohio Law Journal. a prompt renewal when their term of subscrip

tion has expired; by a gentle but firm refusal to COLUMBUS, OHIO,

lend the Law JOURNAL to a parsimonious neigh: MARCH 23, 1882.

bor who never will buy what he can borrow,

they can render us substantial services for which A WORD TO OUR READERS.

we will be duly grateful.

We desire to say further, that we will on the One year ago we discovered that our experi: first of May take possession of new, large and comment of publishing a law journal at the capital modious offices and work rooms, now being exof the State, that would meet the approval of the pressly constructed for our business, and with legal fraternity, was an undoubted success. We

the addition of largely increased facilities in the learned also that our publication must put offline of power presses, fine new type, and comthe form and semblance of a newspaper and as

plete stock of extra paper, we will make a spesume a bookish garb, and must likewise be en

cial business of printing records and briets for larged to accommodate the matter naturally ex

the Supreme Court. pocted to fill an Ohio Law Journal..

We have so arranged the conduct of this speActing upon these discoveries, we did change cialty, as to be able to say that we can do such the form of our paper and enlarge our borders, work as good as the best in this or any other State, and and that our course has met the approval of the fully as cheap if not cheaper, also, than any other. Our profeesion, is amply evidenced by the fact that

proof readers on brief printing, verify the citations our paper is now a regular visitant to the hands

of counsel, which is done in no other printing office of nearly two thousand of the best lawyers and

in the United States. Having access to the State judges in the State.

Library we can do this and frequently find errors We have labored unremittingly and success

in citation which have crept into briefs through fully to give to our patrons the regular weekly the mistakes of writers of text books, or of the report of all cases decided by the Supreme Court compilers of digests, and which would have given and every opinion of that court as soon as writ

great annoyance to the court. We also attend ten. This has been our primary intention; and

to the filing of records printed by us. in the great quantity of valuable matter we have

All these things embolden us to ask our friends published in addition thereto, will be found no

to give us a trial in this special branch of our mean secondary achievement.

business. Write for terms at all events. The advantages thus yielded to our readers, in Thanking all our friends for past favors, we the early publication of all the work of our Su- hope to continue to be the recipients of the same, preme Court, are freely conceded by every law

and to be able to render a quid pro quo for each yer in the State. The advance sheets of the re

and every one. ports are not issued until months after the de

With this brief inaugural, and, we fear slightly cisions are announced, and the opinions written; egotistical address, we settle down to another and, except for our journal, attorneys would be

year of hard labor to deserve your friendship and compelled to wait all these months, or to pay

your money. copying rates for written transcripts. We furnish all the decisions of the highest court

CORRESPONDENCE. in the State at a cost to the subscriber of less than ton cents per week. Our generous friends through. EDITORS OHIO LAW JOURNAL: out the State by their patronage and prompt A case was commenced in the Common Pleas payment, enable us to do this and to give them Court, by the creditors of a father, to set aside for a neat, well printed paper, free from typograph fraud a deed given by the father to his son, and ical errors, and which comes promptly each week also a deed from the son to a younger brother, a full freighted with that which is most valuable minor, conveying the same premises. By due to them in their practice.

process, a guardian ad litem was appointed by the In entering upon the second year of the Law court upon the application of plaintiffs, to deJOURNAL, in its book form, we call the attention fend for the minor. After the guardian ad litem of our good friende to these points of vantage. had filed his answer, he was appointed the guar. But we also desire to remind them that with dian in fact, withdrew his answer, and filed anthoir co-operation oven to the extent of a word other answer signing it as guardian in fact. The

« PreviousContinue »