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Hamilton and Rossville Hydraulic Co. v. C., H. & D. R. R. Co.

the Cincinnati, Hamilton and Dayton Railroad Company, also a body politic and corporate, entered into and upon said tract of land for the purpose of constructing a railroad across the same, and across the race of plaintiff, on said tract of land, and commenced filling up plaintiff's said race and destroying a part thereof, preparatory to diverting the water from said race to other lands on the east side of the line of said railroad, which plaintiff had not been authorized to occupy, and upon which said water-power could not be advantageously applied to propelling machinery; that after said defendant had so entered upon said land, and had commenced filling up said race as aforesaid, with the purpose aforesaid, plaintiff, at the request of the defendant, agreed with defendant, that defendant might complete the filling up of a part of said race by constructing its said railroad across the same, and might divert the water therefrom to other lands on the east side of the line of said railroad above mentioned, and in consideration thereon, said defendant agreed with and promised plaintiff that said defendant would open up and repair said race, and put it in the condition it was at the time defendant entered thereof, and return the water thereto, on the west line of said railroad, whenever said plaintiff should request the same to be done, and thereupon said defendant did, in pursuance of said agreement, immediately complete the filling up said race by constructing its said railroad across the same, and did divert the waters therefrom to said lands on the east side of the line of said railroad, which plaintiff had not been authorized to occupy, and upon which said water could not be advantageously applied to propelling machinery."

The petition, after averring that the defendant had refused upon request to open up said race and restore it to the condition it was in at the time it entered thereon, etc., concludes with a prayer for $120,000 damages.

To this amended petition, after a demurrer thereto had been overruled, the defendant made answer setting up six several defenses. To the first defense the plaintiff replied,

Hamilton and Rossville Hydraulic Co. v. C., H. & D. R. R. Co.

and to the other five defenses separate demurrers were filed. As to the third, fourth, and fifth defenses the demurrers were sustained; but as to the second and sixth the demurrers were overruled. To the overruling of these last-named demurrers the plaintiff excepted. And thereupon final judgment in the case was rendered in favor of the defend

ant.

The second and sixth defenses to the amended petition were as follows:

"2. For a second defense, defendant says that the alleged promise and agreement stated in the amended petition to return the water in said tail-race to its original channel, on the west side, and to repair said original tailrace, was a contract for an interest in lands, tenements, and hereditaments, and that there was no deed or note in writing signed by either of the parties, or by an agent of either party, lawfully authorized, evidencing such promise or undertaking; and that the same is void as against the fourth provision of the statute of frauds and perjuries, on which defendant relies."

"6. For a sixth defense, defendant says that the plaintiff had no authority to conduct water from the Miami river, by means of its race and feeder, back again to the Miami river for manufacturing purposes, to any other than some point within the limits of the town of Hamilton or Rossville; that by its act of incorporation, as copied into said amended petition, it is limited to some point within the limits of said towns, at which to return its said water to said river; that the whole of said tail-race through the said Gordon tract, as well as the point at which the water is returned to the river, is not within what was the then limits of either of said towns, and therefore plaintiff has sustained no damages."

On petition in error to the district court by the plaintiff, the judgment of the court of common pleas was affirmed, and this proceeding is prosecuted for the reversal of the judgment of the district court for error in affirming the judgment of the court of common pleas, and for the re

Hamilton and Rossville Hydraulic Co. v. C., H. & D. R. R. Co.

versal of the court of common pleas, for error in overruling the demurrers to the second and sixth defenses.

The allegation in the second defense that the alleged promise and agreement stated in the amended petition "was a contract for an interest in lands, tenements, and hereditaments" is not well pleaded. It is a mere conclusion, which the facts stated in the petition do not warrant. The promise was to perform work and labor upon land. The performance of this promise would not pass to the plaintiff any interest in the land. The right to maintain this tail-race is undoubtedly an interest in the land, but that right had been fully acquired by the plaintiff from Gordon long before the defendant's promise was made. The plaintiff is not seeking any title from the defendant. While a demurrer admits the truth of facts well pleaded, it does not admit the correctness of mere conclusions drawn from the facts. The demurrer to this defense should have been sustained.

The sixth defense seeks to put in issue the power of the plaintiff, under its charter, to maintain an outlet for the return of the water, or any part thereof, to the river at a point outside the limits of the town as they were defined at the date of the incorporation of plaintiff.

It may be conceded, for the purposes of this case at least, that the lower terminus or outlet to the river, of the headrace or principal ditch authorized by the plaintiff's charter to be constructed, must be maintained within the old corporate limits of the town; but for myself, I can not hesitate to believe that the plaintiff, by its charter, was not restricted to the limits of the town either for manufacturing sites or outlets of tail-races. But, however that may be, the court places its decision of the question made on this defense solely on the ground of estoppel in pais.

The defendant found the plaintiff in the actual possession of this easement and in the enjoyment of its use, and thereupon, in consideration of the plaintiff''s consent and agreement, that the defendant, for its own convenience and benefit, might fill the race with earth in the construction of its

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Hamilton and Rossville Hydraulic Co. v. C., H. & D. R. R. Co.

road-bed, and thus temporarily divert the water therefrom, promised the plaintiff that, whenever requested, it would open up and repair the race so as to restore it to its former condition, and return the water thereto. Having thus obtained possession from the plaintiff, and secured the benefits of the contract, the defendant is estopped from denying either the right or power of plaintiff to enjoy and maintain the tail-race. As well might a tenant dispute his landlord's title. The demurrer to this defense should also have been sustained.

It is claimed, however, that the judgments below should not be disturbed on account of error in overruling the demurrers; because, it is said, that in view of the whole record, it does not appear that the plaintiff was prejudiced thereby.

This claim is based on the assumption that the court of common pleas found the issue of fact made by the reply to the first defense in the answer, in favor of the defendant below. The record does not show that a trial was had on that issue; and it is very clear that such a trial would have been fruitless. The court of common pleas had held rightly, as we think, that the petition stated a cause of action; and it had also held wrongly, as we have found, that the defenses number two and six were sufficient. In such state of the case it was of no consequence whether the facts stated in the first defense were true or not. The journal entry of final judgment immediately follows the entry overruling the demurrers to the second and sixth defenses, and it is thus shown, as we think, that final judgment was rendered in favor of the defendant upon his second and sixth defenses without any trial of the issue upon the first defense.

The judgments of the district, and also of the common pleas court, will be reversed, and cause remanded to the court of common pleas.

The State v. Wilson.

THE STATE OF OHIO, EX REL. THE ATTORNEY-GENERAL, V.CHARLES L. WILSON.

The place of medical superintendent of a hospital for the insane, under the act of March 27, 1876 (Ohio L. 80), is an "office" within the meaning of section 4, article 15, of the constitution, which ordains that, “No person shall be elected or appointed to any office in this state unless he possesses the qualifications of an elector."

PROCEEDINGS in quo warranto.

John Little, attorney-general, for the state.
E. A. Guthrie, for defendant.

GILMORE, J. This proceeding was commenced by theattorney-general in pursuance of a joint resolution of the general assembly.

The information charges that the defendant has usurped and intruded into, and does now usurp, the office of medical superintendent of the hospital for the insane at Athens; "he, the said Charles L. Wilson, not being an elector of the State of Ohio, but a resident and elector of the State of Indiana."

The plea, though otherwise sufficient, fails to traverse this allegation, and on this ground is demurred to.

The only question presented is, whether the place of medical superintendent is an office and he who holds it an officer.

Section 4, article 15, of the constitution ordains that, "No person shall be elected or appointed to any office in this state unless he possesses the qualifications of an elector."

It is impossible to give a definition of an office that will be applicable to all offices; but by taking definitions that have been given by text writers and others we have the means of determining the question as it relates to the defendant.

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