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Licking County Appeals.

dedicated to the use of one of the first four religious denominations forming a society in the town and erecting a building on the lot, it conveyed the lot to a Young Men's Christian Association, which demolished the church building and erected a building adapted to its own wants.

"Held: An abandonment of the use for which the lot was dedicated, entitling the holders of the reversionary interest to the lot."

Campbell v. Kansas, 102 Mo. 326 [13 S. W. Rep. 897]. Syllabi 1, 2, 3, 4 and 5 are as follows:

"1. A square was marked 'donated for graveyard' on an original plat not assigned or acknowledged by the proprietors of a town site, but filed with the recorder of titles by one of them, who soon after used it at a public sale of lots. The plat, and the use of the land for interments were acquiesced in by the proprietors. Held: Sufficient evidence of a dedication in pais.

"2. The donors of land dedicated to a city for a graveyard have, while the public use lasts, no right to a concurrent possession subject to a reasonable use of the public, and can not maintain ejectment against the city to recover such a possession.

"3. Land dedicated to a city for a cemetery, which has no longer the character and name of a graveyard, but is used as a public park reverts to the donor, who may recover in ejectment against the city, which in defense denies the abandon

ment.

"4. In such case, the question will not be considered whether the land can be appropriated and used for other charitable purposes germane to the original one, in accordance with the equitable doctrine of cy pres.

"5. In 1857, land in a city, dedicated and used as a cemetery was by ordinance 'vacated for graveyard purposes.' In 1866, the council, by published notice, required all who had friends buried there to remove the remains. Many removals were made, but the majority of the remains were left to be taken. away by the city. In 1869 it was used by the workhouse force. breaking rock. In 1870, earth was taken from it, and used to

Newark v. Crane.

fill a street. In 1877, the city engineer was instructed by ordinance 'to grade the old graveyard and get it into shape for a public park.

1

"This was done the next year. The grading went below all the graves, except, perhaps, a few in the lower part, on which four to ten feet of earth were placed. Trees were planted, grass grown, and walks laid out. It was named and recognized by the city as a park. No visible grave or monument remained. During the final grading, in 1878, the removal of the remains exhumed was stopped, and the bones of from eleven to eightyfour bodies were reinterred, in small boxes, as near the places from which taken as possible. Small stones, bearing numbers, but no names, were at these points either put five or six inches under ground, or they had sunk to that depth at the time of the trial, shortly before which the location of many of them was brought to light by agents of the city by 'prospecting through the park with a sharp iron rod.' Held: Sufficient evidence of abandonment."

Without pursuing the discussion further, we are of the opinion that the city or town of Newark has no right, title or interest in these premises, in either case, and that the petitions should be and they are dismissed, at the costs of the plaintiff.

It is therefore ordered by the court that said plaintiff remove all of said pipes, poles, electric wires, cement walks, and the fountain from said premises, and restore the same to the condition that they were in before such pipes, poles, electric wires, cement walks and fountain were placed in and upon said premises, and that the same be done within six months from the date hereof.

It is further ordered that a decree be drawn in accordance with the opinion of the court herein. Exceptions.

Motion for new trial, if one is filed, overruled. Exceptions. Ten days allowed for finding of fact and conclusions of law. Statutory time for bill of exceptions.

Shields and Powell, JJ., concur.

Summit County Circuit.

APPEAL-PARKS.

[Summit (8th) Circuit Court, April 15, 1907.]

Winch, Marvin and Henry, JJ.

MARY V. MILLER V. AKRON (CITY).

Appeal Lies to Probate Court Order Assessing Damages for Land Appropriated by Municipality.

An appeal under Secs. 2254, 6407, 6408 R. S. (Secs. 3696, 1120611209 G. C.), may be had to the common pleas court from a decision of the probate court assessing compensation to be paid by a municipality for land appropriated by it for park purposes.

ERROR,

WINCH, J.

The sole question raised by these proceedings in error is whether an appeal lies to the common pleas court from a verdict and judgment in the probate court, assessing the compensation to be paid for land appropriated by a municipality for park

purposes.

Previous to the enactment of the municipal code in October, 1902, the right of appeal in such cases was granted by Sec. 2254 R. S., and the manner in which such appeal might be perfected was prescribed by Secs. 2255 to 2259 inclusive. The new municipal code re-enacted the provision of Sec. 2254, granting the right of appeal (Sec. 3696 G. C.), but repealed the other sections specifying the manner in which the appeal might be perfected. From this situation the city solicitor concludes that such cases no longer be appealed, and he is right in his conclusion and sustained by a former ruling of this court in the case of State v. Hanousek, 10 Circ. Dec. 516 (19 R. 303), unless other sections of the statutes provide the method of bringing such cases into the appellate court. Manifestly the legislature did not intend to take away the right of appeal, and was of the opinion that other sections fully provide the procedure in appeal, for otherwise it would not have reenacted Sec. 2254. Having in mind this intention of the legislature and its judgment, we are called upon to examine Secs. 6407 and 6408 R. S. which plaintiff in error claims are applicable to this case.

Miller v. Akron.

Section 6408 provides what steps shall be taken by "the person desiring to take an appeal, as provided in the preceding section."

Section 6407 provides: "In addition to cases specially provided for, appeals may be taken to the common pleas court,' from the probate court in eight classes of cases, to no one of which this case belongs.

In addition to cases brought in the probate court by municipalities for the appropriation of land, there are several other statutes which provide the right of appeal in special cases. Some of these statutes provide that the appeal shall be perfected "as in other cases," undoubtedly referring to Sec. 6408 et seq., and some set forth the procedure.

From this we conclude that the general procedure on appeal is regulated by Sec. 6408, for all cases where special procedure is not provided. To hold otherwise and to limit the application of the provisions of Sec. 6408 to the eight classes of cases as to which the right of appeal is "provided in the preceding section," i. e., Sec. 6407, would be to take away the right of appeal in many cases by a strict and literal reading of a legislative act, without regard to the manifest intention of the legislature. We see no necessity for so holding, and thus nullifying not only Sec. 1536-114 which governs this case, but many other statutes of like import.

The Hanousek case is not in point. When the legislature created the insolvency court in Cuyahoga county, and provided that appeals might be taken to it from judgments of justices of the peace, without providing how such appeals should be taken, there were no other statutes applicable to the case, and the court properly held:

"If the jurisdiction is conferred by statute, then the court, if no method is prescribed for bringing a case before it on appeal or error, is powerless to prescribe any method by rules or regulations, either in matters of appeal or matters of error, and such court acquires no jurisdiction of such cases.'

In the case at bar the only question is whether the general procedure as prescribed by statutes in force, regulating appeals

Summit County Circuit.

from the probate court to the common pleas court, apply where the intention of the legislature is manifest that they should apply, but the wording of the law is doubtful.

The right to appeal being plain, a liberal construction should be put upon the law providing the remedy.

We therefore hold that plaintiff in error was entitled to appeal her case to the common pleas court, and that the said court erred in dismissing her appeal.

Judgment reversed, and cause remanded to the common pleas court for further proceedings.

Marvin and Henry, JJ., concur.

PAYMENT-PRINCIPAL AND AGENT.

[Hamilton (1st) Court of Appeals, March 4, 1914.]

Swing, Jones and Jones, JJ.

THOMAS L. EVANS V. JAMES P. VAUGHAN ET AL.

Payment of Principal and Interest at Office of Attorney Conformably to Statement in Note Held Payment to Principal under Equitable Rule.

Payment of interest for several years and finally, the principal sum of a promissory note to an attorney, later absconding, at whose office the note itself makes it payable, and from whom the maker received the loan, the maker and payee never having met or consulted with each other, brings an action for recovery thereof within the rule with reference to innocent parties the carelessness of one of which is responsible for the loss, and is properly submitted to a jury under proper instructions, the verdict of which for the maker will not be disturbed on review. Nor is it error to exclude answer of payee as to whether he authorized such attorney to collect the principal of the note.

ERROR.

Overbeck, Kattenhorn & Park, for plaintiff in error.
G. C. Wilson, for defendant in error.

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