McCune v. Larkin. It is also well stated in the opinion of the court in Fulkerson v. Holmes, 117 U. S. 389, 397, as follows: "The proof to show pedigree forms a well settled exception to the rule which excludes hearsay evidence. This exception has been recognized on the ground of necessity; for as in inquiries respecting relationship or descent, facts must often be proved which occurred many years before the trial, and were known to but few persons, it is obvious that strict inforcement in such cases of the rules against hearsay evidence would frequently occasion a failure of justice. Traditional evidence is, therefore, admissible. The rule is that declarations of deceased persons who were de jure, related by blood or marriage to the family in question may be given in evidence in matters of pedigree. A qualification of the rule is that before a declaration can be admitted in evidence, the relationship of the declarant with the family must be established by some proof independent of the declaration itself. But it is evident that but slight proof of the relationship will be required, since the relationship of the declarant with the family might be as difficult to prove as the very fact in controversy." We fail to find any error prejudicial to plaintiffs in error regarding the admission of evidence. It is also urged that the court erred in refusing the demand of plaintiff below for a jury trial. It was practically conceded by the parties that the party having title to the land must be considered as in possession of it, a receiver having been oppointed by the court to care for the property until the determination of the title. The action was brought as an action for partition. Partition is a civil action not triable by a jury. McRoberts v. Lockwood, 49 Ohio St. 374 [34 N. E. Rep. 734]; Swihart v. Swihart, 4 Circ. Dec. 624 (7 R. 328.) The fact that the title of plaintiff was denied by the answer did not oust the court of jurisdiction. Perry v. Richardson, 27 Ohio St. 110. The answer and crosspetition of Hannah Hartnett Larkin was in the nature of an action to quiet title, which is a civil action under the code, in which the parties are not entitled to a jury. Under the pleadings, thereHamilton County Appeals. fore, it was not error in the trial court to refuse the demand for a jury. Nor do we find any other errors to the prejudice of plaintiff in error. Judgment affirmed. Jones, E. H., and Gorman, JJ., concur. SALES. [Hamilton (1st) Court of Appeals, January 31, 1916.] CHARLOTTE T. BROWN, IN RE, ET AL. Assignee Obtains no Title to Goods Sent without Selection by or Price Given to Possible Buyer though not Rejected for Eight Days after Bill Sent. A sale of goods is not complete within the provisions of Sec. 8399 G. C. when they are placed in the house of a possible buyer without being selected by or any price being given to the buyer, even though they are retained without notice of rejection for eight days after a bill is sent, accordingly the title remains in the seller and the assignee of the buyer has no claim thereon. Samuel Wolfstein and Dempsey & Nieberding, for W. H. Davis. Worthington, Strong & Stettinius, for Loring Andrews. PER CURIAM. After a consideration of the facts in this case and applying thereto the law of Ohio with regard to sales we reach the conclusion that on May 9, 1913, the title to the personal property in question was in the Loring Andrews Company and did not pass to the assignee. Section 8399. G C.. provides: "Rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer" and by the language of the section said rules do not apply where a different intention appears. Brown, In re. The goods were sent to Mrs. Brown's house on approval, and hence the second subdivision of rule 3 of Sec. 8399 would apply here. It provides : "(2) When goods are delivered to the buyer on approval or on trial or on satisfaction, or other similar terms, the property therein passes to the buyer "(a) When he signifies his approval or acceptance to the seller, or does any other act adopting the transaction. "(b) If he does not signify his approval or acceptance to the seller, but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of such time, and if no time has been fixed, on the expiration of a reasonable time. What is a reasonable time is a question of fact." Mrs. Brown had not signified her approval or acceptance of the goods, but she had retained them without notice of rejection. As no time was fixed for the return of the goods, the sale would be complete on expiration of a reasonable time, and what is a reasonable time is the question of fact in this case. The time may vary owing to the circumstances of each case. Here no price was given Mrs. Brown on the goods. Most of the articles had not been selected by her, but were placed in her home during her absence. She had no intimation of the price or that the goods were charged to her as sold until eight days before the assignment. At that time and for months before, she was ill, insolvent and much worried over business affairs of a different nature, of greater magnitude and "nearer consequence." The fact that she let eight days elapse after receipt of this bill when she was obviously contemplating bankruptcy is not conclusive evidence that she accepted the goods. She could have returned the bill received by her with notice of rejection and would not have been indebted to the firm for same. Such being the case the assignee or trustee has no claim upon the goods and the Loring Andrews Company are entitled to the proceeds of the sale of the property, to-wit, $1,200. Perry County Appeals. NUISANCE-WATERS AND WATERCOURSES. [Perry (5th) Court of Appeals, November 19, 1915.] STANDARD HOCKING COAL CO. V. MARY A. KOONTZ Actual Damages Only Recoverable in Action for Pollution of Running Stream by Pumpings From Coal Mines. ror. Where water pumped from a coal mine and discharged into a running stream is so impregnated with sulphuric acid as to pollute the stream and a neighboring well to such an extent that live stock will no longer drink therefrom and the water from the well is rendered unfit for domestic purposes, the damage sustained by the riparian owner is measured by the permanent injury to his land as shown by its diminished rental value or the cost of installing another sufficient water supply. T. M. Potter and George A. Fairbanks, for plaintiff in er. C. A. Donahue and T. B. Williams, for defendant in error. HOUCK, J. This is a proceeding in error prosecuted from the common pleas court of this county, asking that the court below be reversed in a judgment rendered in favor of the defendant in error, the plaintiff below, against the plaintiff in error, who was the defendant below. The suit was for alleged damages to the farm of the plaintiff below. The petition in substance avers that the plaintiff is the owner of a farm of 158 acres, located in Perry county, Ohio; that running through said premises is a natural stream of water and that prior to the grievances complained of, as hereinafter set forth, this stream had been used by her for the purpose of watering stock and that it was the only available stream for that purpose; that on said premises were dwelling houses and a barn; that there was a valuable well of water which was used for domestic purposes; that the defendant owned and operated a coal mine north of said plaintiff's premises and nearby said stream of water; that defendant made an opening into said mine through which water was pumped therefrom and found its Coal Co. v. Koontz. way into said stream above referred to, and that said water so pumped into said stream was highly impregnated with sulphuric acid, and that it polluted the water in said stream flowing through the land of plaintiff and it found its way into said well on the premises of plaintiff and rendered the water therein useless for domestic or any other purposes, and by reason thereof said farm had become less valuable and her rents and income therefrom had decreased; that she expended large sums of money in an effort to secure suitable water and by reason of the same has been damaged in the sum of $2,000, and for which sum she prays judgment. The defendant filed an answer to the petition which was in the nature of a general denial. Upon the issue joined the cause was submitted to a jury and a verdict rendered for the sum of $280 in favor of the plaintiff. A motion for a new trial was filed, heard and overruled, and a judgment rendered on the verdict. The plaintiff in error seeks a reversal of this judgment and in its petition in error sets forth a number of grounds of alleged error, but its counsel in oral argument urge but two of them, namely: first, that the court erred in not giving to the jury requests Nos. 2 and 3, which were in writing, and were requested to be given by defendant below before argument; second, that the court erred in its general charge to the jury. Taking up the first ground of alleged error, to-wit, that the court erred in its refusal to give requests Nos. 2 and 3 before argument, will say that we have examined these requests and while we are of the opinion that as abstract propositions of law they are sound and should be given in such a case, where the facts involved in the case warrant the application of such principles of law as are contained in said requests Nos. 2 and 3 but on an examination of the record and the evidence disclosed therein, we are of the opinion that the facts in the case at bar do not warrant the application of the principles of law as set forth in said special requests Nos. 2 and 3, and that the court below did not err in refusing to give the special requests hereinbefore referred to. Coming now to the second ground of alleged error, that the court erred in its general charge to the jury, will say that coun |