Page images
PDF
EPUB

Ib.

as

LANDLORD AND TENANT-Con.-

The common law rule requiring
a notice of six months, is inappli-
cable to the termination of a lease
like this.

Ib.
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 а reasonable
notice to quit the premises, and it is
not error for the court to charge
the jury to that effect.

Ib.
Alessee operating under an
oil and gas lease, who has entered
upon the premises and expended
money under such lease, has a
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 ner.
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. 344.

There are two classes of prop-
erty provided for in an oil and
gas lease. One is an oil weli, and
the other is a gas well, both of
which cannot usually exist at the
same time and be paying property
Taylor 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
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

may be necessars
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 an
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

520

V.

no

LIFE ESTATE

A life tenant cannot acquire
any new or additional title by pur.
chasing the property at a delinquent
sale. Cook v. Prosser.

619.
LIMITATIONS-

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

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 school
board with reference to awarding

the contract to anybody else. Ib.
MARRIAGE-

Where a person has been ad-
judged insane and a guardian ap.
pointed and such person subse-
quently marries, and then by
proceeding in probate court is
again restored to sanity after
which he ratifies his marriage; such
marriage will be annulled at the
suit of the guardian where the evi
dence clearly shows that at no
time since such person

was ad
judged insane has he been sane, or
possessed of sufficient mental ca-
pacity to be able to ratify the
marriage contract. Goodhardt v.
Speer.

47.

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 92
long as they live, and this must ha
followed by cohabitation. Swartz
V. State.

43,
Adultery, however long con-
tinued, does not constitute marriage.

Ib.
Though the relations betwee:1
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 continried 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 9
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.

MASTER AND SERVANT—Con.-
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 plaintir, and
the jury having viewed the machine
and it appearing that it was not
then defective, plaintiff had a
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.
When certain work

ma-
terials are furnished under
contract with the owner, the
statute fixes the lien and should be
liberally construed by the courts.

Ib.
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

owner will not create any lien
against the property of the owner.

Ib
MORTGAGES-

Where suit is brought to fore
close a mortgage against a piece of
land upon which payment was made
by one of the persons who were
jointly owners of the land, and
especially where made by one, who
by agreement of the parties was
obliged to pay the notes secured by
the mortgage, removes the bar of
the statutes of limitations and en.
titles the holder of the mortgage to
foreclose upon the whole farm.
Lawton v. Adams.

129.
Where a corporation organized
and doing business under the laws
of this state, abandons its place
of business and moves out of the
state and its franchise is not taken
away on account of such removal,
it will, until that is done, continue
to be a corporation and will have
power to execute a valid mortgage
on its property in this state and
such mortgage when properly re-
corded will operate as a valid lien
upon such real estate. Lattimer V.

Glass Co.
MUNICIPAL CORPORATIONS-

A municipal corporation which
proceeds to drain a street, is liable
to the owner of an abutting lot for
such injury as may result to his
soil from the withdrawal of its
natural support, even though the
support withdrawn consists of per.
colating waters and sand of such
nature and so blended with the
waters

to be inseparable
Columbus v. Williard.

33.
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. &

as

or

a

or

W. R. R. Co. v. St. Mary's (village.)

661.
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 ít
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 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 det-
initely state the amount of the
bonds to be issued.

Ib.
A preliminary resolution, passed

the council, providing for
the erection and purchase of water-
works the city having a plant al-
ready in existence, does not state
a double purpose for which the
bonds of the municipality were to
be issued, the sole object being to
supply the city with water.

Ib.
The council may unite in
proposed improvement two or more
things so authorized by law, pro.
vided they are so intimately con-
nected as in fact to form but one
improvement.

Ib.
Where the preliminary reso
lution passed by the council, pro-
viding for the erection of water-
works, was "To purchase and
coustruct," and the proclamation
issued by the mayor, designating
the purpose for which the bonds
were 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.

Ib.
7 Dec. 48

by

a

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.

Ib.

NEGLIGENCE-

In an action by a switchman
against a railroad company for in.
juries received by falling into an
ash pit while in the course of em.
ployment, such plaintiff will not be
entitled to recover where the tes.
timony clearly shows that he was
careless and does not show any
excuse for being careless at that
point of time. Holmes v. Railway
Co.

165.
It is error for the court to say
to the jury as a matter of law, that
the mere facts that plaintif 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.
Toledo Con. St. Ry. Co.

389
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

Ib.

a

NEGLIGENCE-Con.-

hiring such minor. P. C. C. & St.
L. R. R. v. M'Laughlin.

354.
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 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 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 а
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 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.
NEW TRIAL-

When the natural and probable
effect of an improper address to the
jury by the prosecuting attorney, is
to create an unjust prejudice against
the defendant, and secure a de
cision influenced by the prejudice so
created, new trial should be
granted. Gawn v. State.

19.
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 plaintif fles afidavits 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
ofnce 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 oficer 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

an

was

« PreviousContinue »