be, an entry nunc pro tunc. And, even though it should be given effect as such, it could not operate to give this decree validity as of the 24th day of October, 1904, for it is well settled law that an entry nunc pro tunc can give retroactive operation and effect to the judgment it records only in the furtherance of justice, and such can never be its office and effect where, as in the present case, it would operate to deprive a party of a substantial right. Again, section 5331, Rev. St. 1906, provides: "All judgments and orders must be entered on the journal of the court, and specify clearly the relief granted or order made in the action." This court has said in Coe v. Erb et al., 59 Ohio St. 263, 52 N. E. 640, 69 Am. St. Rep. 764, that: "The requirement that all judgments must be entered on the journal carries the implication that until that is done the judgment is inchoate only, it is incomplete. Though possessing the character of potentiality it lacks the character of actuality, and hence is without probative force."

The circuit court being a court of record, its judgments, orders, and decrees do not rest in parol. It speaks through its records, and, so, far as its record now before us discloses, the only decree ever made by it in the present case was made and entered on November 4, 1904. We must conclude therefore that the motion for new trial filed by plaintiffs in error on that day was filed in time. It is suggested in argument in this case that this court is without jurisdiction to entertain this proceeding in error, for the reason that an order dismissing and striking

from the files a motion for new trial is not a final order to which error can be prosecuted. In support of their contention in this behalf counsel cite the case of Young v. Shallenberger, 53 Ohio St. 291, 41 N. E. 518, where it is held that the overruling of a motion for new trial is not a final order from which error can be prosecuted. This case we think does not control the case at bar. There is an essential difference between an order of the court sustaining or overruling a motion for a new trial and an order made dismissing or striking such motion from the files. An order of the court striking a motion for new trial from the files, without considering or determining said motion on its merits, is an order that affects a substantial right, namely, the right of the unsuccessful party to appeal to the discretion of the court for a new trial, a right that is secured to and given him by statute. It is an order that finally and effectually prevents a judgment on the motion, and its effect may be to deprive a party of his remedy on error. It is therefore a final order reviewable on

error.

It follows that the circuit court erred in striking from the files the motion of plaintiffs in error for a new trial. The judgment of the circuit court must therefore be reversed, and the cause remanded to that court with instructions to consider and determine said motion for new trial on its merits. Judgment reversed.

SHAUCK, C. J., and PRICE, SPEAR, and DAVIS, JJ., concur.

(74 Oh. St. 396)

SETS.

Error to Circuit Court, Erie County.

Action by Mary A. Fitzpatrick and another against H. L. Peeke and others. Judgment for plaintiffs in the circuit court, and the defendant Peeke brings error. Affirmed.

On the 12th day of March, 1904, Mary A. Fitzpatrick, one of the defendants in error, filed her petition against the plaintiff in error and others, in the court of common pleas of Erie county, in which she set up a decree for alimony in her favor and against her husband, James Fitzpatrick, in the sum of $1,000 which decree was made by the court of common pleas at the January term for the year 1893, and on the 23d of February of that year. A decree of divorce was also made at the same time. It was found in the decree of alimony that the husband owned in fee simple, certain real estate situate in Erie county subject to the life estate of his mother, Catherine Fitzpatrick, and the land is described in the decree which made the alimony a lien thereon.

The petition alleges that nothing has been paid on the decree and that it is still due with interest from January 3, 1893, and that the husband since the making of the decree has sold and conveyed all his rigat, title, and interest in and to the said real estate to H. L. Peeke and Nannie B. McQuown; that the husband owns no other real estate to her knowledge; that her decree for alimony is the first and best lien on the interest of the husband in said premises, but she says, that by reason of the claim of title made by said grantees of her husband, she is unable to effect a sale of the property on execution; and she therefore asks that the claimants set up their claims, ir they have any, and that

her decree be declared the first and best lien; and that the real estate be sold and the proceeds applied in satisfaction of her alimony. The husband answered that on the 19th day of November, 1903, he sold and conveyed all his interest in the premises to H. L. Peeke for which he has been fully paid. The answer of Peeke says that he received the conveyance from the husband November 19, 1903, and that he still owns the interest so conveyed. He further alleges that no execution was ever issued upon said judgment for alimony, and that it became dormant after five years from its date, and has ceased to be a lien on the premises. The prayer at the close of his answer is that the court find him to be the sole owner of said premises subject to the life estate of Catherine Fitzpatrick and a certain mortgage for $200, executed in 1900, to H. L. Peeke, by the husband and Catherine Fitzpatrick, which was afterwards assigned by Peeke to the Erie County Investment Company about the date of its execution. No one contests the life estate of Catherine Fitzpatrick, the mother of the husband. The interest of Nannie B. McQuown is the title to a strip one rod in width off the west end of said premises, which she holds under a deed from James Fitzpatrick and Catherine Fitzpatrick, dated August 20, 1903.

The case was taken to the circuit court on appeal, where the cause was heard, and the facts found, the substance of which we have already stated, and found (1) that the plaintiff, Mary A. Fitzpatrick, has the first and best lien upon the premises, subject to the life estate of Catherine Fitzpatrick; (2) that the Erie County Investment Company for the amount due it, has the best lien on the life estate or interest of said Catherine Fitzpatrick, and the second lien on the interests of defendant, James Fitzpatrick, conveyed to said Peeke; (3) that Peeke has the second lien upon the life estate or interest of said Catherine Fitzpatrick, except that portion of the premises conveyed to Nannie B. McQuown on the 20th day of August, 1903. An order of sale and distribution was made accordingly. Peeke prosecutes error in this court to reverse the order of the circuit court.

H. L. Peeke, for plaintiff in error. John Ray and John F. McCrystal, for defendants in error.

PRICE, J. (after stating the facts). As a fact omitted in our statement of this case, we note that James Fitzpatrick, the defendant in the divorce and alimony action, has filed in this court his cross-petition in error, in which he assigns practically the same errors complained of by plaintiff in error. Except for his own amusement, we see no reason for his having done so. On the nineteenth day of November, 1903, he conveyed all his title and interest in the premises

involved in this proceeding to the plaintiff in error, and thereafter had no interest to protect, unless it would be his covenants of warranty contained in his deed to Peeke of that date. The controversy, if it can be so dignified, is between the plaintiff in error and the defendant in error, Mary A. Fitzpatrick, in whose favor the decree for alimony was made on the 23d day of February, 1893, and in his answer he attacks the decree on the sole ground that it had become dormant because no execution was ever issued for its collection, and was dormant when she brought her action and obtained the decree under review. The controversy thus raised is foreclosed, unless we unless we overrule the judgment of this court, rendered in Lemert v. Lemert et al., 72 Ohio St. 364, 74 N. E. 194, 106 Am. St. Rep. 621, where it is distinctly held that, "a decree for alimony does not become dormant because of the failure to issue execution thereon for more than five years." On page 368 of 72 Ohio St., and on page 195 of 74 N. E. (106 Am. St. 621), this court says: "A decree for alimony is not a judgment within the meaning of section 5380, Rev. St. 1906, which provides that a judgment on which execution has not issued for five years shall become dormant and shall cease to operate as a lien on real estate, nor is it a judgment or finding within the meaning of section 5367, which provides for the revivor of a dormant judgment, or a finding for money in any equitable proceeding."

We still think the law is correctly stated in that case, and therefore follow it in this proceeding. Indeed, the plaintiff in error has not assailed the soundness of that decision either in his brief or oral argument. He opens his brief in this language: "The question in this case is-'When does a decree for alimony in gross cease to be a lien on land? We claim it ceases to be a lien in 10 years." The dormancy of the decree relied on in his answer to plaintiff's petition seems now to be abandoned, and a statute of limitations substituted, which formed no part of the issues made by the pleadings. This might be sufficient for us to say on the subject, but perhaps the spirit of enthusiasm in which the argument was presented, deserves further notice. He suggests that in the Lemert Case, supra, the decree was six years old, while the decree of Mary A. Fitz patrick was 11 years old when she com

menced her action now under consideration. What does that fact signify? Absolutely nothing. We have seen that the decree is not dormant, and we add, now, that we are not aware of any statute that limits its life. The records of the courts are devised and intended to perpetuate judgments and decrees, and unless their lives are limited or cut off by statute, they are the permanent record of what the court has done, until reversed, or otherwise legally set aside. No statute has been cited limiting or cutting off the life of this decree, and it has not been reversed modified or set aside in any proceeding brought to our attention. Therefore, it was a living decree in her favor when the plaintiff below brought her action, and it was the proper basis for the relief she demanded in that action. Her decree was made a lien on real estate subject to the life estate therein, of another party, and during its life, the husband who was the remainderman, conveyed his estate to plaintiff in error. The remainderman and the owner of the life estate, subsequent to the date of the decree, had executed a mortgage to a third party incumbering their interests in the premises, and a rod in width off one end thereof had been conveyed to still another party. These facts furnished a sufficient ground for the action instituted by plaintiff below, to the end that she might subject the real estate incumbered by her decree to the payment of the same. Her case was in the nature of an equitable execution, as held in some of the cases, and she was simply seeking to enforce her legal rights. The premises were in the actual possession of the life tenant. The defaulting husband could not defend by pleading the statute of limitations against a continuing, permanent decree. The plaintiff was not asking possession of the incumbered estate, but its sale under the continuing decree. The plaintiff in error acquired his title on the 19th day of November, 1903, from the defaulting husband, and the action before us was commenced on the twelfth day of March, 1904. There is no place in the facts or in the law for any statute of limitations to find lodgment. We find no error in the record, and the judgment of the lower court is affirmed. Judgment affirmed.

SHAUCK, C. J., and CREW, SUMMERS, SPEAR, and DAVIS, JJ., concur.

(74 Oh. St. 318) GREENE COUNTY COM'RS v. HARBINE. (Supreme Court of Ohio. June 12, 1906.)

DRAINS-WATERCOURSES-POWERS OF COUN

TY COMMISSIONERS.

The word "watercourse" as used in the county ditch law (title 6, c. 1, Rev. St. 1906), is synonymous with the word "drain," and the county commissioners are without authority to convert a living stream of water into a ditch by proceedings for the locating and constructing of a ditch.

(Syllabus by the Court.)

Error to Circuit Court, Greene County. Action by one Harbine against the commissioners of Greene county. Demurrer to answer sustained, and defendants bring error. Affirmed.

Certain landowners filed a petition with the county auditor of Greene county praying for the construction of a county ditch beginning at the head of a milldam in Beaver creek, and running thence up the stream to the boundary line between Beaver creek and Bath townships. The milldam is the property of the defendant in error, and is used in connection with a feedmill. Such proceed. ings were thereupon had before the county commissioners as that they found in favor of the improvement and ordered the ditch constructed, although they changed the southern terminus of the ditch so as to run around the milldam instead of beginning at the head of the dam. The exhibit attached to the record fairly shows the course of the ditch as prayed for and as ordered to be constructed. Mr. Harbine then filed his petition in the common pleas court praying for a perpetual injunction, and upon his motion a temporary injunction was granted. His petition states two grounds upon which reliance was had in support of an injunction: First, that the county commissioners are without authority to convert a living stream of water, as Beaver creek is, admittedly, into a county ditch; second, that the petition for a county ditch was an effort to get rid of the milldam without following section 4567a et seq., Rev. St. Ohio 1906. It is averred in the petition that the milldam had been in existence and continuous use for more than 60 years; and that the plaintiff and those under whom he claims title had been the owners of the land above and below this milldam and on both sides and of the water rights and privileges connected therewith from time immemorial; and that until about the year 1888 there was a flouring and gristmill belonging to them on the bank of said creek in connection with said dam, and by means of which and a head race said mill obtained its water supply; that in the year 1888 the gristmill was destroyed by fire, and that the plaintiff subsequently built a feedmill on the cite thereof, which was then in operation and using said water power. It was denied in the answer that the object and purpose of the petition for the location and establishment of a ditch

was to get rid of the milldam without a resort to the statutory methods specially provided in such cases, and it was admitted that in 1893 some of the same persons who had signed the petition for a ditch had filed a petition with the said commissioners praying for a removal of the milldam, and that the commissioners ordered a removal thereof, and that the execution of the order of removal was perpetually enjoined by the court of common pleas of said county in an action instituted therefor by the plaintiff. The case was heard in the common pleas on a motion to dissolve the temporary injunction, and the evidence, the court overruling the motion, the board of county commissioners answered, to which a general demurrer was sustained. The defendant below not wishing to amend, the answer being insufficient in law, the injunction was made perpetual. The defendant appealed. In the circuit court the case was heard upon the motion to dissolve the injunction and the evidence for and against the motion. The motion was overruled and thereupon the court passing upon the general demurrer to the answer sustained the same and the defendant, not wishing to amend, the injunction was made perpetual. Error is prosecuted in this court.

W. L. Miller and H. L. Smith, for plaintiff in error. McMahon & McMahon and Charles Darlington, for defendant in error.

SUMMERS, J. (after stating the facts). It is said that the circuit court ruled that the board of county commissioners is without power to locate a county ditch in or over a living stream of water, or, in other words, to convert a living stream of water into a county ditch. The contention on the part of the defendant in error in support of this ruling is, in brief, that the board of commissioners has only such power as has been expressly conferred; that power had been conferred upon it to construct ditches or drains, and also to straighten, widen, or deepen streams, and to remove dams; that these powers are distinct so that one does not comprise the others; that the word "watercourse," when used in the statutes relaing to ditches, is used as synonymous with drain, and does not include a stream, and that, therefore, the board of county commissioners may not, in the ditch proceeding, widen, straighten, or deepen a stream, or convert it into a ditch. The plaintiff in error contends that, "under the general authority to locate and construct county ditches, they could be located anywhere if found conducive to the public health, convenience, and welfare, with possibly the one exception that the same could not be so located as to destroy or supersede a public use theretofore appropriated. There being no limitation, and there being full provision for such construction anywhere, with full provisions for compensation, etc., our claim is that the subse

quent provision for straightening, widening, and deepening streams did not and does not have the effect to limit or abrogate the power already in force and operation, but only provided a manner of straightening, widening, etc., streams without the construction and location of a county ditch. The county commissioners already had the power to locate and construct a county ditch upon and over the stream. The new provision did not limit the power of the commissioners as to county ditches and was not so intended, but it provided a manner for the straightening of streams in cases where a county ditch might not be feasible or desirable. It is a provision relating solely to streams and the improvement of same, without even the pretense of superseding, abrogating, or limiting any ex isting power or right in the commissioners as to county ditches." Attention is also directed to section 4448, Rev. St. 1906, in which it is provided: "The word 'ditch' as used in this chapter shall be held to include a drain or watercourse."

It does not follow that a power is unlimited because granted in general terms and without words of limitation. Regard must be had for the circumstances existing at the time the power is granted. If from these it clearly appears that the Legislature could not have intended the power should comprise a particular thing then the power to that extent is limited just as effectually as if the act had contained express words of limitation. That the Legislature did not intend to confer power to convert a stream into a ditch clearly appears from the circumstances existing at the time of the legislation, and it just as clearly appears from the language used, that the word "watercourse," as used in the ditch law is synonymous with the word "drain." In the early history of the state water power was the only power in use for the operation of mills and manufactories, and the interests of the state were thought to be so largely dependent upon the utilization of that power that riparian rights were watched with jealous care. So it was when ditches and drains were first made subjects of legislation. At that time land was so cheap that ditching was comparatively unimportant and the Legislature would not have authorized the destruction of a water power in order to provide a ditch. It was not until some years later that the matter of drainage became so important that tradition has it a member of this court was heard to say that the great Northwest, meaning thereby the northwest part of the state, must be ditched even if it is necessary to break the Constitution. Then streams were not converted into ditches, and such is not now the practice. In Reeves v. Treasurer of Wood County, 8 Ohio St. 333, 343, the learned judge writing the opinion notices the importance of drainage to a portion of the state and reviews the legislation respecting it. The first act noticed is an act passed March 26, 1841 (39 Ohio

Laws, p. 122), entitled "An act providing for the appointment of commissioners of sewers in certain counties of this state." It authorized the court of common pleas in certain counties, on application of the proprietors of "meadows, marshy and low lands, or grounds which are injured by the overflowing of waters, and of swampy land which may be rendered valuable by draining the same, to grant a commission or sewers to such, and so many able and discreet persons as they shall judge expedient, for clearing and removing the banks and obstructions of the passages of the water in rivers, brooks, streams or ponds, which occasion the overflowing and drowning of meadows, swamps and low lands; and also for the draining of swamps, and other unprofitable lands; and also for damming, to prevent the water from overflowing marshy and flat lands; * * and the commissioners shall have power to do the service aforesaid, and shall also have power to enter upon any adjoining lands in the most convenient place or places, to open drains through such adjacent lands, to the nearest and most convenient watercourse or watercourses, for the purpose of carrying off the water from such meadows, swamps, marshy, low, or flat lands." In 1853 (51 Ohio Laws, p. 351) the act of 1841 was repealed and it was provided "that the trustees of townships shall have the power on application of the parties, to enter upon any lands in their township, to view any watercourse, or proposed ditch, for the purpose of draining the lands of one or more persons, and, in case the parties interested shall be unable to agree where said watercourse shall be opened, or said proposed ditch shall be cut, said trustees shall cause said watercourse or ditch to be located, and surveyed, and shall set apart to each person interested in the said watercourse or ditch, such portion of the same, to be by him opened, as shall, by said trustees, be deemed just and right, according to the benefit to be derived from the opening of said watercourse or ditch." This act was repealed in 1854 (52 Ohio Laws, p. 92) by an act in which many of its provisions were incorporated, and in 1857 (54 Ohio Laws, p. 112) the act of 1854 was amended, but no change was made that will throw any light upon the question under consideration. In 1859 (56 Ohio Laws, p. 58) the act of 1857 was repealed and sustantially the same power that theretofore had been granted to township trustees was taken from them and vested in the county commissioners. They were authorized "to cause to be established, located and constructed, as hereinafter provided, any ditch, drain or watercourse, within such county." This act was amended in 1867 (64 Ohio Laws, p. 66, and 64 Ohio Laws, p. 143), and in 1868 (65 Ohio Laws, p. 107) it is supplemented by granting authority to county commissioners, "in case where any ditch, drain or watercourse has been es