Drinkwater v. Jones.

Upon the question whether the damages are excessive, there is a little more difficulty. We have looked the testimony over very carofully, and have come to the conclusion that the damages arc a little large in this action.

Eglantine Jones resided with her sister part of the time whose name was Mrs. Green-and then she transferred her residence to Mrs. Jackson's. While she was at Mrs. Jackson's, Mr. Drinkwater went to Jackson's house and saw her, and he there charged her with being Eva Jones; which she denied, and insisted that she was not Eva Jones. Shic says, on cross-examination, that she don't know as she told him who shc was-because she didn't know that it was any of his business. She diá not give her name, but said it was not Eva Jones. Eva. Jones was charged with having bought a watch of the defendan: below, who was engaged in the jewelry business, selling the goods on the installment plan, for which watch she gave some kind of a chattel mortgage; and that she had conveyed it away and not paid for it, and that she had not returned the property. She was a sister of this plaintiff. After this conversation with Eglantine Jones, in which Eglantine said she was not Eva, Drinkwater went to a justice of the peace and swore out this warrant, and then went back to the same house, with the constableperhaps within a week—and then there was more talk of about the same effect. Eglantine told them then that her sister had gone to Canada; that she (Eva) did not know anything about the watch; that it couldn't have been her-the plaintiff-because she was not in the city at the time; that she had only been here about two months. On the trial it was developed that she-plaintiff had been ing here several years. She said that her sister had a watch, but did not know who her sister bought it of; knew that her sister got a watch, but she claimed she did not know it was mortgaged. She was arrested by the constable, taken before a justice of the peace and required to enter into bonds. A time was set for the trial of the case, a few days thereafter, but between the time of the arrest and the day set for the trial, the watch was delivered to Mr. Drinkwater, and was said to have been delivered to him by Mrs. Green, who was a sister of Eglantine and Eva Jones. When Mr. Drinkwater got his watch back, before or at the time of the calling of the case for trial, he dismissed it, or authorized the justice of the peace to do so, and there was no trial of the case. The evidence shows, we think, pretty clearly, that Mr. Drinkwater in good faith believed that the plaintiff here was Eva Jones; and there are some very cuspicious circumstances in this record, and it is not clear that she was not Eva Jones. The claim was made that Eva Jones was in Canada, and had not been heard or for several months; that she had left the watch behind her, and that it was returned to Mr. Drinkwater, either by the plaintiff herself or by her sister. Plaintiff testifies that she didn't see the watch taken back, and dión't have anything to do with the taking of it back, but that aer sister took it back; but all of these facts would seem to indicate that the injury to her was not to the extent that the jury found, and we think that they unreasonably found a verdict of $175 in this case. We think they must have been either biased or prejudiced in this case, and unless the defend ant in error will remit $75 of this judgment, we shall reverse the case and remand it for a new trial; otherwise, we will affirm it.

C. T. Johnson, Attorney for Plaintiff in Error.
L. M. Murphy, Attorney for Defendant in Error.

Lucas Circuit Court.

BOUNDARIES.

[Lucas Circuit Court, February 5. 1897.]

Haynes and King, JJ.

*ANNIE M. HEAD V. ABRAM M. CHEsbrough.

CONVEYANCE OF LAND ADJOINING A NAVIGABle River.

Where one conveys land adjoining a navigable river of this state and the land in fact bounds and abuts upon the water which flows in front of the premises and conveys by a conveyance which does not except or reserve the land in front of the premises, although they may be marked with boundary lines, the grantee takes to the centre of the navigable stream, that is to the centre of the current.

APPEAL.

KING, J.

This case was brought in the common pleas by the plaintiff, to quiet title to certain premises which she avers the defendant is claiming; it was tried in the common pleas and appealed to this court.

The premises in controversy, as alleged in the petition, is a certain tract of land which she avers lies between lots eleven and twelve of the subdivision of lots twelve, thirteen, fourteen and fifteen of Ironville, constituting the village of Ironville,-lying between those subdivided lots and the centre of the channel of the Maumee River, and the claim is based upon a survey and plat of the village of Ironville, made by David Weaver, in 1870; Weaver being then the owner of the original lots Nos. twelve, thirteen, fourteen and fifteen in the Wa-sa-on Renau and Cheno tract, in Manhattan. That map purports to divide parts of these lots which I have named into small lots; and among the small lots are lots numbers eleven and twelve. The lots appear on the Weaver map to come substantially to the water's edge, as it stood in 1870, or as the map illustrates it; but, drawn along the shore of the water, and near it, was a line which it is claimed by the plaintiff marked out the boundary of lots on that side, or end, and it is claimed that the map shows that although those lines are angling lines, running a short distance in one direction and then changing direction and running again a short distance on a straight line and then again changing direction,-that each of the angles was marked by posts and that the line itself on the map was shown to have certain angles-which are given; and if that be so, it appears in the original map, which is before us- then those courses are somewhat oblique. The record, and this map, for it was, shortly after its execution, recorded,-show some courses on that line, but they do not show that there were boundary-stakes set at those angles. Whether that line was intended to be a boundary of these lots, or not, and without deciding whether it was the original intention of Mr. Weaver to make that the boundary, it appears plainly, from the map that that angling line is coincident with the water as it then appeared or as his surveyor represented it upon his map; and we think it appears from this map alone to have been intended simply as a survey of that end of the lot, placing the line as near the water's edge as it was convenient for the surveyer to go. But the determination of that question is not, in our judgment, essential to the determination of the rights of the parties. Mr. Weaver had claims against him and gave mortgages upon some portions of his land, and *For decision of the common pleas, which is affirmed by this decision, see 6 S. & C. P. (17),

494.

Head v. Chesbrough.

conveyed other portions of it, and some of it was sold at sheriff's sale, and these lots, eleven and twelve, which are owned by the defendant, Chesbrough, became, by a conveyance to the plaintiff, the property of the plaintiff-before 1885, but in 1885, the plaintiff being then, the owner of lots eleven and twelve, conveyed them to A. Bridge, and plaintiff now claims that she is the owner of the land and the sole owner of the water in the river between those lots and the channel. Being the owner of lots eleven and twelve, she conveys them to one A. Bridge, by a deed which describes them as lots eleven and twelve on this plat. In 1895, Bridge conveyed these lots by the same description, to the defendant, but with also an additional description, by which he undertook to convey all the riparian rights and water privileges that might exist upon them or be annexed to them. There is no dispute upon the testimony here that the water had then either risen, or had washed away the soil, so that it covered a large portion of lots eleven and twelve as originally shown upon the Weaver map-especially lot twelve, which perhaps was at least onethird of it under water-and a good portion of lot eleven was also under water at the time when she conveyed to Mr. Bridge, and this condition of things existed at the time when Bridge conveyed to the defendant; so that when the defendant purchased, as well as when Bridge purchased of the plaintiff, these lots ran to the water-and the water covered a part of the premises.

It is also in evidence that when Mr. Bridge purchased these lots and the plaintiff purchased of Bridge, these lots, because of their water privileges, he paid a very much larger price-several times as large a price as these lots would have been worth at any time.

We think the law is well settled that when one party conveys land adjoining a navigable river of the state of Ohio, and the land in fact bounds and abuts upon the water which flows in front of the premises and conveys by a conveyance which does not except or reserve the land in front of the premises, although they may be marked with boundary lines, that the grantee takes to the centre of the navigable stream-to the centre of the current; and it is useless and the time of the court will not allow us to cite authorities upon that question.

The only case we need to refer is a recent one of the supreme court in 53 O. S., 254, and I will only read a few lines in that decision.

The court, after describing the grant-which was to a boundary line fixed by the deed, and which boundary line was in the water-say, on page 266:

"These considerations would seem to justify the presumption that a grant of this character is to the central thread of the stream unless apt terms are employed to limit it.

"And such appears to be the settled view of the courts of the country. (Citing many other cases.)

"To the application of this doctrine it is quite immaterial whether the stream be named as a boundary of the lands granted or there be a description by courses and distances from a fixed monument whereby a line is established coincident with the stream. The doctrine regards the substance of the grant and not its form."

That, we think, is sufficient law to cite upon this question, and that the substance of this grant made by the plaintiff herself, in 1885, conveyed this land and all its rights and privileges to the water and soil in

Dec. 12

Hamilton Circuit Court.

front of these lots, though it may have been described by actual boundaries-to the centre of the stream in front of the premises.

Therefore the order and judgment will be that the petition in this case be dismissed, and the defendant will recover his costs of the plaintiff.

King & Tracy, Attorneys for Plaintiff.

Clayton W. Everett, Attorney for Defendant.

STREETS AND ROADS.

[Hamilton Circuit Court, January 5, 1897.]
Smith and Swing, JJ.

THE METHODIST PROTESTANT CHURCH OF CINCINNATI V. HARRY L.
LAWS AND FLORENCE E. LAWS.

1. FACTS WHICH DO NOT BAR PLAINTIFF FROM MAINTAINING HIS PRESENT ACTION.

Upon the facts as stated by the court in its opinion in this case, it was held that the pendency of the proceeding in error in the supreme court to reverse the judgment in a former case, did not bar the plaintiff from bringing and maining this action, if the evidence otherwise shows that he is entitled to the relief sought.

2. MATTERS SETTLED AND ADJUDICATED IN FORMER CASE BETWEEN SAME PARTIES-EFFECT.

That the matters set up in the second defense, even if there was evidence to maintain them, (which was not offered), had already been settled and adjudicated in the former case between the same parties.

3. OBSTRUCTING PLAINTIFF'S RIGHT OF WAY.

That the structure erected by the defendant over the roadway of plaintiff is in violation of the right of said plaintiff, and ought not to be maintained as it now is.

HEARD ON APPEAL.

SMITH, J.

After the entry of the final decree rendered by this court in another cause then pending therein between these same parties, and in regard to the same roadway, and the respective rights of the parties therein, a proceeding in error was filed in the supreme court of Ohio to reverse our judgment. While this proceeding in error was pending in that court the present action was begun in the court of common pleas, and is now here on appeal from the decree entered in that court. The opinion announced by the circuit court in the first case will be found in 4 C. D., 562, and the judgment rendered has recently been affirmed by the supreme court, without further report. In the opinion referred to, the nature of the controversy between the parties there adjudicated and the conclusions reached by the court are fully set out, and it is therefore unnecessary to state them here, and the judgment of the court having been affirmed, we must accept that judgment as to the rights of the parties as to the matters involved therein, as correct and final.

The petition in the case now before us, sets out substantially the alegations of the petition in the other case as to the roadway and the rights of the plaintiff thereto, and the ownership by the defendants of For previous decision in this case, see 4 Circ. Dec., 562, which was affirmed by Supreme Court in 55 O. S., 662; unreported.

Church v. Laws et al.

the real estate immediately east of and adjoining the land owned by plaintiff, subject to said roadway through the same, and then avers that such defendants without any right to do so, are threatening, and proceeding to obstruct said roadway and right of way, by placing the foundations of a stable which they are erecting out in said roadway about six feet, and are carrying the same to a considerable distance above the grade of said road and arching the same over said road in such a manner as will permanently injure and interfere with the use of said roadway by the plaintiff and others entitled thereto, and the prayer was that the deendants be enjoined from in any way obstructing said road, or permitting or maintaining any obstruction therein. A temporary restraining order was also asked for. The answer sets up three defenses.

First. The pendency in the supreme court of the former suit on error, and the refusal of the supreme court to grant a temporary injunction against the maintenance of a gate at the west end of the roadway.

Second-That Mrs. Laws is the owner of the real estate east of, and adjoining that of plaintiff, (particularly described,) and that the right of way referred to Hes on the north end of her real estate. It then sets up that plaintiff's real estate was acquired solely for use as a cemetery, and was so used until a few years ago, and that the right of way referred to, during all that time, has been used simply as an entrance to the cemetery for persons having lawful right to enter therein, and was granted for no other purpose. That there has always been a gate at the west end of the right of way at the entrance of said cemetery, between posts, about eight feet apart. It then sets up the agreement recited in the opinion of the circuit court referred to, and what was done under it, and the decree of the court in the former case. It further avers that about the plaintiffs subdivided the cemetery ground into lots for residence and building purposes, and has opened and dedicated public streets through the same, running north and south, connecting with another street ruuning east and west, having its eastern terminus at the west end of said right of way over the defendants, premises and both connecting with other streets running through populous parts of the city, so that said right of way over the premises of the defendants can no longer be used for the purposes for which it was granted, but if at all, only as an entrance for the public generally to said public highway, by reason whereof said easement and right of way have been lost and ceased-and inasmuch as it can no longer be used for the purpose for which it was granted, nor otherwise that an entrance for the public generally to said public streets, the defendants pray that the easement may be declared abandoned, lost and at an end.

Third. They deny that they are threatening and proceeding to obstruct said road by carrying the foundations of their stable which they re building on the rear of their premises, out into said roadway about six feet, and carrying the same a considerable distance above the grade of said road, and arching the same over said road in such manner as will permanently injure and interfere with the use of said roadway by the plaintiffs and those entitled thereto. The distance between the posts occupied by the gate at the west end of said roadway, has never been greater than eight feet. If plaintiff ever had any right to a larger entrance to its property, it has been lost or abandoned. The defendants nave left an entrance way of nine feet, and the arches of defendants stabic are sufficiently high to enable plaintiff a passage way from said roadway onto its property.