LANDLORD AND TENANT-Con.-- The common law rule requiring a notice of six months, is inappli- cable to the termination of a lease Ib. like this.
Under a tenancy from year to year, the serving of a notice upon the tenant four months before the expiration of the year he was then serving, includes a reasonable notice to quit the premises, and it is not error for the court to charge the jury to that effect. Ib.
A lessee operating under an oil and gas lease, who has entered upon the premises and expended money under such lease, has right to know if the lessor is going to insist upon greater developments of the property than have already been going on, and shall have notice of the fact and be given an opportunity to more fully and more speedily develop the property before the lessor is entitled to claim a forfeiture of the lease on the ground that there is not a rea- sonable operation under the lease. Ohio Oil Co. v. Hurlbut. 321.
In an action upon an oil and gas lease to which defendant al- leges that there prevailed a custom at the time of making this contract, well known to the parties and people generally, to the effect that a person operating under one of these leases would have the right to use so much of the gas produced from any well as would be nec- essary to operate that well: Held, that it was not error for the court to charge jury that the burden was upon defendant to establish it and he must establish it by a fair pre- ponderance of the evidence and that unless defendant did so establish it the defense was not maintained. Ohio Oil Co. v. McCrory.
There are two classes of prop- erty provided for in an oil and gas lease. One is an oil well, and the other is a gas well, both of which cannot usually exist at the same time and be paying property Taylor V. Peerless Refining Co. 368.
And, as the general provision of such lease is that if the lessee gets a gas well he is to pay a certain rental, and if he gets an oii well he is to pay so much royalty for each well; therefore where the lessee under such lease did sink a number of wells and in each case found a little gas which was used for running the boilers on the prem- ises, such well in the general sense
would not be considered as a "gas well" upon which the lessee would be liable for the payment of any Ib. stipulated rentals.
A lease of land for the pro- duction of oil and gas, providing that the lessee might exercise cer- tain rights and privileges thereon for three years, or as long as oil or gas should be developed there- from in paying quantities, and stipulating that as compensation therefor the lessee should deliver to lessor a certain share of the oil produced, and that "should gas be found and developed upon said prem ises producing 100 pounds pressure to the square inch in thirty seconds, said first party (lessor) is to have the right to consume for lighting and heating his dwelling such amount as may be necessary therefor, the said company (lessee) to furnish such an amount of one- inch pipe not exceeding 500 feet as may be necessary to conduct the gas from the well to the dwelling, and the additional sum of $100 per annum for each gas well exceeding 200 pounds pressure to the square inch in thirty seconds, when and as soon as the same is marketed and utilized," and providing for no other compensation for the ex- ercise of such rights and privileges by the lessor: Held, that the lessee having been permitted to ex- ercise such rights and privileges for the said term of three years, and for three additional years there- after, and having drilled but one well, which produced gas only. but not in sufficient quantities to at any time create a pressure of 200 pounds to the square inch in thirty seconds, and having furnished the pipe as required by the lease to convey gas to lessee's residence, and permitted the use of such gas for the lighting and heating of such residence, is not bound to pay any rental, compensation, or damages for such occupation or use of said premises for any of said time, either before or after the ex- piration of said three years' term. Oak Harbor Gas Co. v. Murphy. 700. LIBEL AND SLANDER-
A communication made to the appointing power concerning an applicant for position as teacner, when made in good faith, is priv- ileged, and the party making such communication is protected, even though the statements contained in it be not true. Nolan V. Kane
The statute of limitations does not run against the state in the matter of the collection of taxes. Schott, Treas., v. Wasteney. 222.
Where plaintiff's cause of ac tion accrued on March 16, 1887, this day should not be included in the computation of the statute of limi- tations of six years, and therefore such cause of action is not barred on March 16, 1893. Harris v. Harris. 189. MANDAMUS-
Whenever a judicial officer is vested with discretionary power as to the performance of any duty, or where in reaching a given result of official action, he is obliged to use some degree of judgment and discretion; while mandamus will lie to compel action upon the
matters in controversy, it will in no manner interfere with the ex- ercise of such discretion nor control or dictate the decision which shall be reached. State v. Wilson. 17.
Mandamus will not be allowed to compel a board of education to award a contract for furnishing a school house, to the relator who was a bidder, unless he shows that he is the one under law with whom the board should enter into the contract, and that regardless of their rights of anybody else. State ex rel. v. Bd. of Ed. 338.
Such relator cannot rely upon the weakness, or informality or ir- regularity of the bids or of the proposed actions of the board with reference to awarding the contract to anybody else. MARRIAGE-
To constitute marriage, it is es- sential when the statutory forms are omitted, that each of the parties contract with the other that they will, from the making of such contract, sustain to each other the relation of husband and wife so long as they live, and this must he followed by cohabitation. Swartz V. State.
Adultery, however long con- tinued, does not constitute marriage. Ib.
Though the relations between persons of opposite sexes, may be illicit in their inception, yet this does not preclude the subsequent making of a valid marriage contract between them, without the statu- tory forms. Ib.
MASTER AND SERVANT-
An employee is bound to ex- ercise ordinary care and observe the rules of his employer, and it will not excuse him for a violation that the employer or his agent, superior to plaintiff, has at some time disobeyed such rules. L. S. & M. S. Ry. Co. v. Litz. 282.
If an employee has suffered an injury brought about by violation of the plain instructions of his principal, he cannot hold his prin- cipal liable therefor Ib.
If an employee, with knowledge of the habitual and continued neg- ligence of his superior fellow-em- ployee in some matter acquiesces therein and continues in the service of his employer without ob- jection or effort toward correction of such neglect, he thereby waives his right against the company and takes the risk upon himself. Ib.
In an action for damages for an injury caused by a defect in the machinery upon which plaintiff was at work, and the jury from the evidence found that plaintiff had shown that the machinery was defective and that the injury had occurred from the defect existing in the machinery, in such case the plaintiff will be entitled to recover damages for the injury received. Connelly v. Cake et al. 477.
The fact that the act of 3 servant resulting in an injury may have been malicious, and one for which he is liable to criminal pros- ecution, does not prevent the master from being liable for damages for such act. Lloyd v. Nelson Busi- ness College. 318.
In an action by a servant against his master on account of in-
juries received while operating machinery for the master, where the petition contains an averment. that the servant upon discovering a defect in the machine making it dangerous for him to operate it as directed, informed the foreman of the fact; that the foreman subse- quently informed the servant that he had remedied the defect and directed the servant to resume work with and upon the machine, which the servant accordingly did, believing and relying upon this as- surance of the foreman that the defect had not been remedied, and in consequence thereof the servant was injured; and it appearing that the defect was not obvious or ap- parent to one working at the machine and that plaintiff was without fault in the premises: Held, that a further averment or proof that plaintiff did not have equal means of knowing of said de- fect with defendant is not required. Barbour v. Miles. 682. Defendant having introduced testimony tending to show that the machine had not been repaired since the injury to plaintiff, and the jury having viewed the machine and it appearing that it was not then defective, plaintiff had right on rebuttal to show that the machine was defective, as alleged at a time subsequent to the injury. Ib.
MECHANIC'S LIEN-
A mechanic's lien can only arise under a contract made with the owner, and shall date from the first item, meaning the first item under that contract-not under any other person's contract. Feike v. C. & E. Ry. Co. 652. or ma-
When certain work
terials are furnished under a contract with the owner, the statute fixes the lien and should be liberally construed by the courts.
The courts have no power to substitute a contract made with an- other contractor and the owner, for one made by the claimants long af terwards with the owner. Ib.
A mechanic's lien is not created by contract, but by statute; and the statute only creates a lien when cerain other things exist, to- wit: work and materials furnished under a contract with the owner. Ib.
Work done under a contract with some other party than the
An ordinance, passed by a hamlet, providing for the arrest of any person guilty of any loud or lascivious behavior in the streets, alleys and other public places in such hamlet, is valid, and full au thority is given the hamlet to pass such ordinance, by the provisions of sec. 1653, Rev. Stat. Billington v. Hoverman. 358.
Where the council passes an ordinance under the provisions of sec. 2494, requiring a railroad com- pany owning or operating its rail- road partly within such corporation, to light its bridges and crossings within a specified time, such or- dinance must specify a time within which such lighting shall be done, and failing to so specify, the or- dinance is invalid, and no lawful assessment could follow it. L. E. &
It is the duty of a city to keep its streets "open, and in repair and free from nuisance," and when in the course of a public improvement it becomes necessary to make an excavation, it is the city's duty to have the excavation guarded by a railing or suitable protection or a signal light to warn persons using the street of the danger they incur by so doing. Its failure to do so renders it guilty of negligence and a want of ordinary care. Moon v. Middleton. 579.
A preliminary resolution, passed by the council declaring it necessary to issue bonds for the erection and purchase of water- works for the purpose of supplying water to its inhabitants is not a resolution of a general or per- manent nature, and, therefore, it is not necessary that such resolution be read at three separate meetings of the council before its final adoption. Elyria Gas & Water Co. v. Elyria. 527.
Such resolution is not invalid on the ground that it does not def- initely state the amount of the bonds to be issued. Ib.
A preliminary resolution, passed by the council, providing for the erection and purchase of water- works the city having a plant al- ready in existence, does not state
Where the preliminary reso- lution passed by the council, pro- viding for the erection of water- works, was "To purchase and construct," and the proclamation issued by the mayor, designating the purpose for which the bonds to be issued was "For the erection of waterworks," and the 'ordinance, as passed by the council after the vote of the people was "For the erection or construction of waterworks:" Held, that the variance in the reading of the resolution, proclamation of the mayor and the ordinance as passed by the council does not invalidate the proceedings. *7 Dec. 48
Where an agreement between a municipal corporation and a tele- phone company as to the mode of use of its streets has expired by limitation, the municipal corpo- ration cannot oust the company from the use and occupation of its streets until it is made to appear that no agreement as to further use can be made and that the company, after such failure to agree, delays unreasonably to apply to the probate court to fix the mode of use as pro- vided by law. State ex rel. Mathews v. C. U. Telephone Co. 536.
In making an agreement as to the mode of use of its streets, etc., a municipal corporation has no power to fix the rentals to be charged by the telephone company for the use of its instruments; and a refusal of the company to assent to a provision in that behalf is not a failure to agree, within sec. 3461 Rev. Stat.
It is error for the court to say to the jury as a matter of law, that the mere facts that plaintiff may have seen men at work on her sidewalk on the afternoon before the injury, and knew they were about to make an excavation for the purpose of putting in a side- walk renders her guilty of contrib- utory negligence and bars her re- covery. Such facts in themselves are not conclusive. Moon v. Mid- dletown. 579.
A person driving upon and at tempting to cross the track of a street railroad without looking to see if the cars were coming is guilty of negligence, which bars his right of recovery. Schausten, Admr., v. 389. Toledo Con. St. Ry. Co.
If the officer of a railroad com. pany who happens to hire a minor, in good faith believes at the time of hiring and had reasonable grounds to believe from the size, appearance, conduct and statements of such minor that he was then of full age, the company cannot be deemed to have been negligent in
A railroad company permitting crude oil to accumulate and remain for an unreasonable time upon its side tracks, is guilty of negligence, and answerable therefor in damages to a brakeman, who, while in the performance of his duty, slips upon such oil and is injured. C. H. & D. R. R. Co. v. Criss. 632.
Suddenly stepping upon a rail. way track, or walking thereon un- necessarily, and without looking to see if a train is approaching, con- stitutes contributory negligence and the railway company is not liable even though it was negligent or not, having a light upon the tender of a backing engine. C. H. & D. R. R. Co. v. Lally. 632.
In an action for damages for injuries received by a person while crossing the tracks of a railroad, the court is not authorized to say to the jury, as a matter of law, that if plaintiff heard the whistle of the train while he was at a reasonable distance from the crossing, so that he could have stopped his horse in time and avoided the injury, that he was therefore guilty of con- tributory negligence and could not recover. C. C. & I. Ry. Co. v. Reiss. 450.
Where an employee, without any business or need in the pros. ecution of his work, walks upon tracks of a traveling elevator and there meets with an accident, such action on his part constitutes sheer carelessness for which he cannot recover, there being no neg. ligence on the part of those in charge of such elevator. Hocking Coal & Ore Transfer Co. v. Voght. 494.
It is not negligence for a brakeman engaged in the regular discharge of his duty, to step upon the pilot of a moving engine from the outside of the track, it being necessary for such brakeman, in the proper discharge of his duties to get on the pilot of the engine, as that was the proper method of doing, and was the method univer- sally employed, in order to facilitate business in coupling cars by means of the draw bar of the engine. Wabash R. R. Co. v. Heeter. 485.
The knowledge on the part of the brakeman of the fact that the company permitted its engine to be operated by the engineer alone,
while the fireman was at dinner, was not such negligence on the part of the brakeman SO as to preclude a recovery for an injury received while the engine was being thus operated. Ib.
The proximate cause of the in jury was the negligence of the com- pany in not furnishing two men to run the engine, and in sending it out with only one man, and there- fore the proximate cause of such in- jury was not the negligence of the engineer in leaving his side of the engine and going to the opposite side. Ib.
The neglect of counsel for de- fendant to make objection to such misconduct at the time, will not preclude its consideration upon a motion for a new trial, where its prejudicial effect could not have been prevented thereby. Ib.
Where plaintiff files affidavits in support of a motion for a new trial, based on the ground of newly dis- covered evidence, it is not error for the court to allow affidavits to be filed on behalf of defendant in an- swer to those filed by plaintiff. This is provided for by sec. 5308, Rev. Stat. Ousley v. Witheron. 448. OFFICE-
If the sinking fund commis sioners of Cleveland hold their office by a title unassailable, then their official acts cannot be chal lenged in a proceeding in quo war- ranto to oust them from office, and therefore the appointment of the board of park commissioners by such board was an official act which such board was authorized to per- form, and the appointment will be held a valid one. State ex rel. Strimple v. McBride et al. 522.
A person holding an office, the existence of which is supported by no color of law, is not an officer de facto, but one holding an office created or attempted to be created, by an act unconstitutional may be an officer de facto. Ib. PARENT AND CHILD
Property accumulated by par ents and children will not be con
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