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Huron Circuit Court.

"Damages must be measured by the market value of the land at the time it was taken, not its value to the petitioners, nor to the respondent, not the value which it might have under different circumstances from those then existing. The petitioners were not entitled to swell the damages beyond the fair, actual market value of the land at the time by any consideration of the chances or probability that in the future authority might be acquired by legislation to carry the water in pipes to neighboring towns; such chance or probability must needs enter to some extent into the market value itself, and so far as the market value might be enhanced thereby the petitioners were entitled to the full benefit of it. If there were different customers who were ready to give more for the land on account of this chance, or there were any other circumstances affecting the price which it would bring upon a fair sale in the market, these elements would necessarily be considered by the jury, or by witnesses in forming an opinion of the market value. Nevertheless the value for these special or possible purposes is not the test; but the fair market value in the land, in view of all the purposes to which it was naturally adapted."

In the case at bar the landowners were seeking to show substantially the same thing as is stated in the Massachusetts case. They were trying to have the jury consider an enhanced value to this property, from the fact that it was adapted to a reservoir, which was the very purpose for which the city was appropriating it. This necessarily was an enhancement of the value, based upon the necessity of the city to have it, and not from any demand in the market for it. There was no proof that there was any general demand for this property for such purposes, and we may take notice that there is no other town or city, within any reasonable distance of this place, whose probable demand for water, or for a reservoir, would be likely to, in any wise, affect the value of the lands, and there never had been any demand on the part of the city of Norwalk for this property, before the commencement of these proceedings. If this evidence had been admitted, or if this charge that was requested had been given, the jury would have been left to speculate upon how much the city of Norwalk could afford to pay for this property, having in view, not the market value of the lands, but the necessity of the city to acquire it for this particular purpose. In our judgment the ruling of the court was correct upon the questions proposed, and upon that part of the charge. If there are any cases which seem to hold a different doctrine, we are satisfied that the rule in Ohio, as stated in the case cited, and that the best, as stated in all the authorities, is opposed to the claim made here by the land owners.

The case cited in the 98th U. S., 403, does not militate against our holding. The circumstances there were altogether different than here. That was a proceeding to appropriate certain islands in the Mississippi river by a boom company, authorized by statute to appropriate lands for such purposes, and it was permitted to be shown that the islands were so situated as to be available for booming purposes. Clearly, if they were situated where they could be used for booming logs, they were in open market, liable to be purchased by any individual or company engaged in booming logs, and to be used for the same purpose as that for which the company in question was appropriating them, and therefore, their value for that purpose was the principie element to be considered by the witnesses and by the jury in estimating the value of the lands. They were shown to be some thirty acres, in three irregular shaped islands, of prob

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Gibson et al. v. The City of Norwalk.

ably no value for any other purpose except to which a boom to hold logs might be moored and fastened, and in such a situation that the logs would be protected and not impede navigation. Any person, who had logs, had a right to float them down the Mississippi river, and had a right to acqnire a place where they could be boomed, by purchase or by condemnation under the statute.

But the record here disposes that evidence was admitted, showing the formation of the lands, the facts were given in evidence to the jury, all of the facts, and from those facts it is easy to conclude that there was no market for this property, or any part of it, for the purpose that the city wanted it. We think this sufficiently disposes of those objections to this judgment.

We think on the whole the case was fairly submitted to the jury by the court. There was some exceptions taken, to requests offered by the land owners on the ground that the requests were in writing, presented to the court, and asked to be given to the jury before the argument of the case, and some of those, it is conceded, are embraced in the charge of the court as finally given. We do not think that the court was required to give those requests in writing after the evidence was closed and before the argument. This proceeding is governed by the statutes relating to the appropriation of property by municipal corporations alone, unless in that statute there is found an exception; and section 2245, does not refer to any exception, but states the course of proceeding upon the file, and as to the charge of the court provides:

"The injury and assessments shall, in other respects, be made by the jury, under such rules and regulations as shall be given by the court."

The second objection, which we deemed worth noticing is in relation to the statement by the court that the burden of proof was upon the property owners to establish the value of the property by a fair prependerance of the evidence; there is some criticism upon the use of the word "fair," and it is claimed that it requires a greater degree or weight of evidence than the use of the words "preponderance of the evidence" without the qualifying adjective. We are disposed to think that the word "fair" in that connection was proper, and that to say to the jury they shall find an issue or a fact from a fair preponderance of the evidence, is the same as to require that they shall, after a fair consideration of all the evidence, find the preponderance of the evidence in favor of, or against the fact in question. And we are pointed to no case where any different rule has been held. In the circuit court it was held that to charge in a criminal case that a defense set up by a defendant must be established to the satisfaction of the jury, or that the jury must be satisfied by a fair preponderance of the evidence, was imposing a higher degree of proof than the law required, and the supreme court held the same substantially in the case of Kelch v. The State, 55 O. S. R., Adv., 356, where the court below charged in a case where insanity was set up as a defense that "the proof must be such as to overcome the legal presumption of sanity; it must satisfy you that he is insane."

If any just criticism could be indulged in of the use of that phrase "fair preponderance," we do not think it was prejudicial to the land owners in this case. The question submitted to the jury was not as to the truth or falsity of any fact or issue, but only the value of the lands appropriated, or the injury to the balance of the land owners, tract, by reason of the severance of that appropriated. It was conceived that the land was valuable, and the only question for the jury to determine

Cuyahoga Circuit Court.

was the amount that should be assessed, which the city ought to pay for the appropriation.

We think the judgment should be affirmed without penalty.

GUARDIAN AND WARD.

[Cuyahoga Circuit Court, November 19, 1896.]

Caldwell, Hale and Marvin, JJ.

LAURA I. LYNCH, AN INFANT, BY NEXT FRIEND, V. BENJAMIN S. COGSWELL, EXECUTOR.

EXAMINATION AND APPROVAL OF GUARDIAN'S ACCOUNT.

Where the probate court examines and approves the account filed by a guardian. Held, that this adjudication is conclusive between the guardian and his ward, and that the judgment of the probate court in approving the account of the guardian was the end of any controversy between the guardian and his ward. HALE, J.

The case of Laura I. Lynch against Benjamin S. Cogswell, is a proceeding in error in which it is sought to reverse the judgment of the court of common pleas.

On the 28th day of March, 1890, Benjamin S. Cogswell was appointed guardian of Laura I Lynch. At the time of the appointment, Laura was a young girl living with her grandfather, Solomon Cogswell. She continued her residence with her grandfather until December, 1890, about nine months after the appointment of her guardian. After the termination of the residence of Laura with her grandfather, the grandfather presented to the guardian a claim for the board of his granddaughter from 1884, to December, 1890, amounting to six hundred and forty-three ($643.00) dellars. The guardian apparently acquiesced in this account, and instituted a proceeding in the probate court to sell certain real estate belonging to his ward, to raise the means with which to pay this claim and perhaps, to provide for the future support of his ward. Sale was made of the real estate, but before the money came into the hands of the guardian, Solomon Cogswell died. By his will Benjamin S. Cogswell was named as his executor, and qualiñed as such in February, 1893. The money from the sale of his ward's property came into his hands about this time, and he passed from the estate of his ward to the estate of Solomon Cogswell, both of which he represented, the amount of this bill, including interest, seven hundred and seventeen ($717.00) dollars. The guardian immediately resigned his guardianship, not desiring to retain both places, and filed his final account in the probate court. In that account he claimed credit for this payment which he had made to the estate of Solomon Cogswell. William H. Lynch succeeded Cogswell as guardian of the little girl, and filed exceptions to his account, objection being made to this item that I have stated. On the day of the hearing, or the day to which hearing had been adjourned, no one appearing to represent the exceptions to the account, the probate court dismissed the exceptions, examined and approved the account. The time for appeal passed. Counsel for the guardian of Laura, supposing that that adjudication was final as between the ward and the guardian, commenced this action against the estate of Solomon Cogswell to recover directly from that es

Lynch v. Cogswell, Executor.

tate the money that had been paid it by the guardian upon that account. The objection to this claim on the part of the executor of the Cogswell estate, relies upon two defenses: First, that the claim was a just nd valid claim which ought to have been paid, and should be sanctioned by the court. Second, that the adjudication in the probate court was a final adjudication as between the guardian and the ward, and conclusive of the case here.

If we were to determine this controversy upon the merits of the claim which existed in favor of Solomon Cogswell or of his estate for the board of this granddaughter, we should have no hesitation whatever in saying that there was no legal foundation for this claim. There was no pretense that there was any contract with the girl, her father or her mother, or any one representing her, that the board while she remained in the family of her grandfather should be paid. She remained in that family only nine months after the guardian was appointed; but after his appointment the guardian made no arrangement by which the grandfather should be paid for the board of the granddaughter. The relation between this little girl and her grandfather was such as to preclude any presumption that that board was to be paid for. That is, there is no implied promise of the child or of her guardian to pay this claim.

But going to the effect of the adjudication in the probate court, the counsel who represents the plaintiff concedes that that adjudication is conclusive between the guardian and his ward, and that the judgment of the probate court in approving that account is the end of any controversy between them; but while that is so, he makes the claim that an action can be maintained against the executor of Solomon Cogswell whom, he alieges, wrongfully received this money. The approval of the account of the guardian by the probate court adjudges that account to have been a just claim against the ward, and its payment rightfully made. It would seem to us to be a strange proposition if, as between the guardian and the ward, the payment of that account was rightfully made; and yet the person to whom it was paid, so wrongfully received it that he is liable to an action for its recovery. We cannot approve such proposition, and after a careful review of the case we feel compelled to approve the holding of the court of common pleas.

We believe that this action cannot be maintained by reason of the adjudication that was made in the probate court, not that the judgment was res adjudicata between the ward and this defendant, but that the result of that adjudication was such as to show that the money paid on this account was not wrongfully paid by the guardian, and therefore no wrongfully received by the estate of Solomon Cogswell.

The judgment of the court of common pleas is affirmed.
Gilbert & Hills, Attorneys for Plaintiff in Error.
George A. Grout, Attorney for Defendant in Error.

Cuyahoga CiCourt.

CONTRACTS-STATUTE OF FRAUDŚ,

[Cuyahoga Circuit Court, December 12, 1896.]}

Caldwell, Hale and Marvin, JJ.

THOMAS P. WESTROPP V. PATRICK S. WESTROPP.

1. AGREEMENT BETWEEN MOTHER AND SON.

agreement entered into by a mother and son, whereby the son placed into the hands of his mother, a certain sum of money, with the agreement that she should make use of it, as she might need, during the period of her li and that upon her death, it, or such part of it as should remain unexpended, should be paid back to the son: Hela, that this contract is not within the statute of frauds, and need not be in writing in order to maintain an action upon it.

2. CONDITIONS NECESSARY TO BRING A CASE WITHIN THE STATUTE OF FRAUDS. To bring a case within the statute of frauds, it must have been expressly stip lated by the parties, or appear to have been clearly understood by them upo a reasonable construction of the contract, that the contract was not to be per formed within year.

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These of Thomas P. Westropp against Patrick S. Westropp, as administrater of the estate of Catherine Westropp, deceased, is brought ere upon a petition in error seeking to reverse the judgment of the out of common picas. The case was brought by Thomas P. Westropp in that court, by filing a petition which sets forth that something like cleven years before the death of Catherine Westropp, ho was his other, he put into her hands the sum of five hundred ($500.00) dollars the agreement with her that she should make use of it, as she right nx, during the period of her life, and that upon her death, it, or ch part of it as should remain unexpended, should be paid back to i and the petition further alleges that the en amount wa 1.6 mended at the death of his mother; that he flea i claim with chain. istrator of her estate, and that the same was rejected, and so he bringt this suit in the court of common pleas for judgment for the amount of laim.

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To his petition a demurrer was interposed, the ground of which was t the promise witch was claimed to have been mad by the other to return the propert, was within the statute of fra ds; that it was a contract on er part, no to be performed within a year from the time it w made; and the court of common pleas sustained the demurr, ná ih out urther pleading, judgment was entered for the defendan.

So the question her is whether or not the court of common leas erred in staining the demurrer.

It is urged that the mother was likely to live, in any event did ive, eleven years after this money was put into her hands; and it is urged to us that even if she died the next day, the statutca 1 ws the administra tor eighteen months within which to pay any claim owed by the deceased, and that, therefore, the contract could not be performed within a rear and to this we think it sufficient to say that, if by the terms of the con tract the performance was to be at such a time as to take the case cal the statute, the fact that the law allows eighteen months to the admins trator to pay the depts of the estate, this would not have the effect 2 bring it within the statute. It is further urged that without reference to

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