Railway Co. v. Tuttle.

urged that the plaintiff was not in possession and could not maintain this suit until he was.

The property in controversy was uninclosed until shortly before the beginning of this action, it had never been enclosed, it was open for anybody to pass over it that saw fit and it is in evidence that people used it without regard to who owned it. Up to within a short time before this suit was commenced there is evidence that the plaintiff made some use of it, just how much is not very material, the second year before this action was commenced, the defendant, without making any other or additional boundaries to the land, did enter upon it and cultivated a strip of potatoes a rod wide along one side of it and the following year I think planted a second crop and cultivated it, and he testifies he gave permission to somebody else to come in there without renting it; there is evidence on the part of the railroad company that it also gave permission to somebody to plant potatoes. Beside that, the defendant, in the summer of the commencement of this action started the erection of a barn or a leanto and laid sills upon the foundation, erected posts and put on rafters, and had so far proceeded at least when this action was commenced. He went or after the commencement of the action and completed the shed and Las occupied it by himself or his tenants ever since. That is all there is of the possession of either of these parties that is worthy to be noticed In this case of this strip of land. That does not change it at all from a controversy as to where the boundary line is.

In 1852, somewhere about July, Lyman Miller, was the owner of a piece of land, about two acres or a little more, and he secured a surveyor by the name of T. W. Clapp to make a plat of it. Mr. Clapp or some body seems to have written he made it in July, 2352. On November 21, 1854, Mr. Lyman Miller acknowledged it and it was left for record in this county on January 11th, 1855 On January 4th, 1853, after the survey was made and plat was presumably in Mr. Miller's possession, but before it had been acknowledged or recorded he made a conveyance to the S. C. & I. R. R. Co., of certain lots by the designation in the deed shown upon his plat, lots numbered 9, 10, 11 and 12, and on September 14th, 1853, the same year, he made a conveyance to the person from whom the defendant in this case claims of lots 6, 7 and 9. Sometime after that, but the day is not before us, he also made a conveyance of anotner lot on this plat called lot 5. This plat contains 12 lots aud they are numbered from 1 to 12 inclusive. The lots conveyed to the railroad con pany, 9, 10, 11 and 12, lie substantially north of, and if this plat be correct, their south ends adjoin or abut against the property claimed by the defendants in this action, which are lots 6, 7 and 8, and also lot 5, a part of which is involved in this suit so that by the plat the defendant's property and plaintiff's property are supposed to adjoin each other. The plat shows upon it that lots 6 and 7 of the defendant's property are bounded upon one end by Buckeye street, on Buckeye street it shows that they are each four rods in width, the plat shows that they are each tca rode in length, extending back at right angies with Buckeye street, and that each contains 40 square rods. So far now these figures are defi nite and certain and so far they declare two lets containing each 40 rods, and so far as the evidence in this case will show, the land is there to accommodate that description and is owned by defendant. These are probably the only two lots on this plat where length and breadth and area are given and where there is laid sufficient to accommodate thes 7 Dec. 5

Sandusky Circuit Court.

measurements, but these two lots comprise the south boundary line nearly the entire length of that which is now disputed. So far as this plant has been re-surveyed or re-copied by surveyors, they have made the line bounding these lots eight rods in length as being substantially the entire length of this disputed piece of land and so far as any question is involved between plaintiff and defendant that line adjoining these two lots is the only line that needs to be considered.

Now as to the lots 9, 10, 11 and 12, plaintiff's property, when the maker of this plat came to designate it, he designated as I have said, by the number of lots and he gave the area of each of the lots, and the length of certain of the lines. It is impossible to tell from the plat what lines are correct. There is no width given to these lots except lot 12 is described as being 2 rods and 14-100, and upon lot 9 appears the designation four rods. These lots, 9, 10, 11 and 12 abut upon what was then known, perhaps still is known as Maple street, and the L. S. & M. S. Ry. After Maple street was laid out, the railroad company, to whom this land was conveyed, came in possession of part or all of this street, all of it for some distance and laid its railroad tracks upon it so really these lots now and ever since these railroad tracks were built, have abutted on the railroad right of way. The property about which this dispute has arisen are the two lots shown as fronting on Maple street. Now it is said that the measurements of these lines are incorrect and this raises our inquiry. Surveyors tell us if they give to this lot of land all there is described there as area that there will be a chortage on the plaintiff's land of a little more than four rods, there will be shortage of about the same, possibly a little more, probably six rods of the lots which were originally conveyed to Mr. Tuttle. That shortage will appear, not in the two lots I have mentioned but will appear in lot 8 which adjoins the two lots I have mentioned and if the two lots I have mentioned are given forty square rods, which the plat calls for, then it is conceded, I think, that lot 8 will not have upon it the number of square rods given upon the plat nor will it have the dimensions given on the plat. The plat as made by the surveyor of this county, Mr. Hughes, in which he gives to lots 6 and 7, the amount of land which they are said to contain in the original plat, gives to lot 8 a considerable less amount. That is about 7 rods or substantially the shortage which he finds would exist in these lots by giving the areas described.

Now another plat is prepared by Mr. Hughes upon the theory of defendants here in which they undertake to start upon the idea of bounding plaintiff's lands by lines which shall be substantially like the length of these lines laid down in Miller's plat without regard to area, and it is said in argument that area should not govern length of lines. That is true if the lines are shown to be correct, but the difficulty with Mr. Hughes' plat is he does not give the length to these lines as given in Miller's plat, and he gives a good reason why he does not. He says he cannot do it. That is evident, it is evident these lines cannot be laid, at least so as to make a regular boundary and the lengths be taken as in Mr. Miller's plat but why he changed them, no reason has yet been shown, nor do we understand why a surveyor can arbitrarily change figures or dimensions or lengths of lines that are laid down upon a plat to accommodate any given theory. There is not certainly any legal reason for it, he does it arbitrarily, and if it conflicts with facts it must give way to them. The great fact in this case is the plat, which may have been made, and probably was, without any accurate survey, and assum

Railway Co. v. Tuttle.

ing it was made by a surveyor in his office who had divided it and undertaken to give certain portions of its dimensions and area and to other portions area without dimensions, what are we to hold? At first it seems fundamental, and it appears here beyond any controversy that this paper chows that it was the intention of the maker of this plat to plat all the land between these streets which are mentioned which bound it, Buckeye street, State road, Lake Shore Railroad and Maple street, he intended to plat it into twelve lots and when he conveyed by lot numbers, he intended to convey every foot of that property. To say that thirty years thereafter, that it is discovered by somebody's theory that by rearranging these lines it can be found there is a surplus and that Mr. Miller said he was the owner of this surplus would be an astonishing proposition. When he conveys all these lands by the lot numbers it matters not whether these lines are correct or whether he gave entirely wrong lengths to all of them, still the intent is manifest to convey all this land and that is the overwhelming fact in the case and we cannot overcome that by any theory. The second fact pertinent here, is that the lots which abut this controverted property are laid out correctly on Mr. Miller's plat and the land is there and the defendant is the owner of it. When he obtained a deed to lots 6 and 7 he had a deed to forty square rods of land in each lot, his deed says so, says four rods wide and ten rods deep, and says so by making this plat part of the deed, and that would make a reasonably good description; a description in which we are not required to give greater force and effect to lines than area for lines and area agree. Now abutting upon the north of these two lots are the lots 9 and 10 on this plat, Mr. Hughes says that if 9 and 10 were correctly surveyed it would throw 11 over so that 9, 10, and 11, abut against these two lots. Now it was the intention of Mr. Miller that they should so abut and we cannot conceive any other way out of it. Taking these two points, the evident intention of the maker of this plat to plat the whole property and sell it, and the fact the two lots owned by defendant and abutting this line have all the land called for, and correspond with the deed in length, breadth and area, it follows as an irresistable conclusion that, when Miller conveyed this land by lot numbers he conveyed all the land he owned between 6 and 7, or if you please, 6, 7 and 8 and Maple street and Lake Shore road, he conveyed the land lying north of it. If there was a shortage on the plat the rule is well settled in this state that it will be divided as near as possible pro rate between the parties, and authorities to that effect are in the 7th Ɔ. S, 204, and in 2d O. S., 363, cases in many respects like this, I refer to this particularly because the court in delivering opinions in both of these cases say that by plats or maps which were concededly incorrect both as to lines and area that the intention of the maker of the plat was evident to divide the whole property by is plat. That intention is what we think is manifest here, that being se we think it clear he intended to convey all the property between the strip of land ten rods deep extending back from Buckeye street and the street adjoinining on the north when he made the deed to defendant. We think plain has sufficien possession to quiet title to this disputed boundary and is entitled to tha relief in this case

Hamilton Circuit Cour*.

APPEALS.

[Hamilton Circuit Court, December 30, 1896.]

Swing and Smith, JJ.

JANE THOMPSON ADMX., v. The Gest Street Building ASSOCIATION. RIGHT TO APPEAL FROM CINCINNATI SUPERIOR COURT TO HAMILTON CIRCUIT COURT.

An action pending in the superior court of Cincinnati, on and before November 1, 1893, and in which a judgment was entered on June 20, 1894, ten days before the law of May 16, 1894, took effect, cannot properly be appealed to the circuit court on July 29, 1894, or at any time and a motion to dismiss such appeal will be sustained and the case stricken from the docket.

HEARD on motion to dismiss appeal.

SMITH, J.

This case was heard on a motion to dismiss the appeal. The facts on which the motion is grounded, briefly stated are these.

The action was begun in the superior court October 6, 1888, and on June 20, 1894, a final judgment was rendered therein. Notice of appeal was duly entered, and on June 29, 1894, the case was attempted to be appealed to this court by the giving of the bond, and the filing of the transcript and papers.

On the 18th day of April, 1893, an act was passed by the general assembly, which in effect abolished the general term of the superior court and gave, by an amendment to section 6709, to the circuit court of this county, the right to reverse, vacate or modify on petition in error filed therein, a judgment rendered, or final order made by said superior court, (93 O. L., 191.) To correct an error therein, this section, with a slight alteration not affecting this case, was re-enacted, January 30, 1894, (91 O. L., 8), and by the act of April 18, 1893, section 6709a was passed, and it provided that "all laws providing for appeals from the court of common pleas to the circuit court shall apply in like cases to the superior court of Cincinnati, and all laws regulating the practice, forms of process and procedure in error or appeal from the court of common pleas to the circuit court, shall be held to extend and apply to the superior court of Cincinnati, as fully as they extend to the court of common pleas."

This act took effect November, 1893, and continued in force until July 1, 1894. See act of May 16, 1894. (91, O. L., 277.)

It will be seen from the foregoing statement, that the question presented, is whether in a case which was pending in the superior court on and before November 1, 1893, and in which a judgment was entered on June 20, 1894, ten days before the day on which the law of May 16, 1894, took effect, might properly be appealed to the circuit court on July 29, 1894, or at any time.

It is apparent from an examination of the statutes which were in force up to November 1, 1893, that no right of appeal, as distinguished from a proceeding in error, was given from the decree or judgment of the special term of the superior court, to any court. And it is also ear that by the act of April 18, 1893, in section 6709, as therein re-enacted or in 6709a which last section appears for the first time, and which sections provide for proceedings in error and for appeal from the superior court to the circuit court, and in no other piace in said statute, is there any *This decision was considered again by the same court, and approved, in Blymyer v. Meader, 9 Circ. Dec., 173.

Thompson, Admx., v. Building Association.

express statement that the law in question shall apply to actions then pending in the superior court, with the single exception that section 3 thereof, provides that all cases, pending in the general term of the superior court, and all unfinished business therein, at the time of the taking effect of the act, should be transferred to this court, nor so far as we can see was there any language used therein from which such legislative intent can be implied. How then under the express provisions of section 79, Revised Statutes, that "when the repeal or amendment relates to the remedy it shall not effect pending actions, prosecutions or proceedings unless so expressed," can this act affect this action which was pending in that court, prior to, and at the time of the taking effect of the act referred to November 1, 1893? It must be conceded also, we think, that this act, and the sections referred to, diá relate to the remedy; and it would follow therefore, that section 6709a did not apply to actions then pending in that court, so as to give a right thereafter to any one, to appeal from a judgment rendered therein to the circuit court and this is the only section or provision of law which ever gave an appeal from that court to this.

Nor was there anything in the act of March 16, 1894, repealing the original statute of April 18, 1893, which can be construed as giving the right to appeal cases which were pending November 1, 1893, to the circuit court. Section 4 of this last act contains this proviso, to the repeal of sections 6709 and 6709a, viz: "Provided, however, that said section 6709a and section 1 of said act passed January 30, 1894 (section 6709) shall continue in force in so far as the same affect judgments rendered and final orders made by the superior court of Cincinnati, at special term prior to the taking effect of this act; but this act shall apply to all actions and proceedings which may be pending and undetermined in the superior court of Cincinnati at special term when this act takes effect July 1, 1894.

The effect of this provision as we understand, is simply this-that whatever effect section 6709 and 6709a originally had, still remains; as to actions which had been pending in the special term, but in which judgments had been rendered before the taking effect of the repealing law, viz: July 1, 1894. It did not give any new right of appeal or errorthat is, if an action had been commenced in the superior court after November 1, 1893, and a judgment had been rendered therein before July 1, 1894, there was still a right of appeal in such cases, unless the time therefore had expired. But as there was not originally given by section 6709a a right of appeal in cases brought before November 1, 1893, this proviso did not give it. And as this case had been fully disposed of by the superior court, before July 1, 1894, it certainly does not come within the last provision of section 4 (the repealing section) which makes the act apply to all actions which may be pending and undetermined in that court when the act took effect July 1, 1894.

The general doctrine that statutes affecting the remedy do not apply to pending actions, unless so expressed, is conclusively settled by the decision in the case of The State of Ohio ex rel.v. Rabbits, 46 O. $., 178, and the other cases decided by the same court, cited by counsel for the appellant, which seem in any degree to militate against that view, notably 29 O. S., 19, as shown by Judge Minshall in deciding the Rabbits case, were under statutes which contained no such provision as to the amendment or repeal of statutes relating to the remedy, not affecting pending actions un