Hamilton County.

As opposed to these circumstances, we have the fact that the Tudor Boiler Manufacturing Company erected an office building directly across the end of this forty foot strip; and by this building of its own construction, effectually shut itself off from access to the same, and from any use of the easement now claimed by it. The significance of this fact, on the part of the Tudor Boiler Manufacturing Company, is well illustrated by contrasting the case of Stokoe v. Singers with the case of Regina v. Chorley, 12 Q. B. 515, both of which cases involved the question of ancient lights. In the former, the windows were closed by a covering temporary in its nature; in the latter, the windows were closed in a manner permanent in its nature. In the former, the court held that an intention to abandon was not thereby indicated. In the latter, on the contrary, the court held that the party, by its action, had clearly indicated his intention to abandon his right to light. The case at bar is one of an easement for roadway purposes, and the structure built by the Tudor Boiler Manufacturing Company is one which effectively shut its property off from all access to this roadway, and made the use of the same at this end impossible. It clearly indicates an intention upon the part of the Tudor Boiler Manufacturing Company to abandon this right of easement for a roadway in this forty foot strip. In addition, we have the existence of the sand shed, which was constructed by the I. & E. Greenwald Company, a permanent structure necessary to the latter's business, and inconsistent with a right of way over the part of the forty foot strip covered by it, and a substantial obstacle to access at the end of said strip to and from it, and the property of the Tudor Boiler Manufacturing Company.

We have likewise the fact that during the period from 1857 to 1879, this forty foot strip was continuously covered with a greater or less number of cores and flasks.

We are now considering these latter two items, not on the issue of adverse possession, but as collateral facts and circumstances, and the fact that they existed so long in plain view of the Tudor Boiler Manufacturing Company, so completely destroying any use of the roadway of this forty foot strip and without objection, and for the most part with the acquiescence of the Tudor Boiler Manufacturing Company, as indicating the attitude of mind, to wit, the intention to abandon on the part of the Tudor Boiler Manufacturing Company. Thus marshalling the facts as they appear on this issue, we find that a preponderance is clearly in favor of an intention to abandon on the part of the Tudor Boiler Manufacturing Company, and that the same became

Manufacturing Co. v. Greenwald Co.

and was thereby abandoned, and no subsequent acts of the parties has ever re-established it.

A great deal has been said about the deeds from Fox and Longworth, and it is claimed that the recitals in the same, accepted by the I. & E. Greenwald Company, recognize these easements. Be that as it may, these do not affect in any way the question of intention upon the part of the Tudor Boiler Manufacturing Company.

We come now to the question of adverse possession. The facts which the defense herein relied upon to maintain this defense are not much in dispute. It is claimed, however, that the use by the I. & E. Greenwald Company of this forty foot strip as a depository for their cores and flasks, in view of the fact that the I. & E. Greenwald Company held the fee of said strip, is not a user of the same, in its nature necessarily adverse to the easement claimed by the plaintiff. It is a familiar doctrine that, inasmuch as the owner of the fee has all the uses incident to a piece of property not inconsistent with a dominant easement, that until the exercise of such right or easement is asserted, any use by the owner of the fee is not in itself adverse.

This furnishes somewhat of an answer to the obstruction by the cores and flasks, but does not answer the interposition of the permanent, substantial sand shed, which by its very nature is a denial of any right of roadway use in this strip. Furthermore, at some time between 1857 and 1879, the I. & E. Greenwald Company built a substantial fence along the north side of this roadway, and continuously maintained the same.

It is extremely difficult, from the testimony, to determine whether or not any or all of these obstructions continued over the whole period of time, but we have no difficulty in finding that from 1857 to 1879 the I. & E. Greenwald Company exercised dominion over this strip and treated it practically as an appurtenance to their foundry, and paid no respect to any use of the same as a roadway. It is claimed that by acceptance of the Fox and Longworth deeds, and in other ways, the I. & E. Greenwald Company admitted the title of the Tudor Boiler Manufacturing Company for this easement. Such an admission is hardly important and not at all controlling on the issue of adverse possessionadverse possession, by its nature, being to destroy an admitted title and tɔ wrest away by physical holding property rights, the title to which may be in another. On this issue the court is not so strong in its conclusion as on the issue of abandonment, but on this, too, we find in favor of the defendant.

We are therefore of opinion that an injunction should be denied. 36 O. C. C. Vol. 26

Wood County.

ELECTIONS - INTOXICATING LIQUORS — EVIDENCE — CRIMINAL LAW.

[Wood (6th) Circuit Court, April Term, 1904.]

Hull and Haynes, JJ. Parker, J., not sitting.

FRANK DALRYMPLE V. STATE OF OHIO.

1. BEAL LAW ELECTION MAY BE PROVED OTHER THAN AS PROVIDED BY SEC. 4364-20A REV. STAT.

The fact that an election was held under the Beal local option law, and also the result thereof, may be established by evidence other than the original entry on the records of the municipal council, or a copy thereof certified by the corporation clerk as provided by Sec. 4364-20a Rev. Stat. which makes such record or certified copy prima facie evidence of such facts. Hence, the failure of the clerk to record, in the proper way and place, the result as reported to him, does not invalidate the election, if an election and the result thereof can be clearly established by other evidence.

2. PRESUMPTION IS THAT LEGAL BODIES ACTED LAWFULLY, ETC.

Where a duly and legally constituted legal body, such as a city or village council, has acted, the presumption is, in the absence of evidence to the contrary, that it has acted lawfully, and had before it sufficient facts to warrant it in acting. This presumption is in the nature of evidence, and until overcome by other evidence, it stands as proof of the fact in question.

3. PRESUMPTION THAT PROPER PETITION WAS FILED FOR BEAL LAW ELECTION WHEN ELECTION ORDERED BY COUNCIL.

The presumption is that a petition for an election under the Beal local option law, in due and legal form and signed by 40 per cent of the qualified electors of the municipality, was presented to council as required by Sec. 4364-20a Rev. Stat., when it appears from the council record that a petition was presented asking for an election, that it was duly acted upon, and that an election was ordered on a certain date.

4. NAMES OF BUYERS NOT MATERIAL IN AFFIDAVIT CHARGING KEEPING PLACE FOR SALE OF LIQUORS, ETC.

The names of persons to whom liquors were sold need not be set forth in an affidavit charging the offense of keeping a place for the sale of intoxicating liquors, in violation of the Beal local option law.

5. FINE OF $300 UNDER BEAL LAW FOR FIRST OFFENSE EXCESSIVE.

A fine of $100 on each count of an affidavit charging three separate offenses of keeping a place for the sale of intoxicating liquors, in violation of the Beal local option law, or $300 in the aggregate, is excessive, when there is no charge or claim that defendant had ever been previously convicted of a violation of said law. In such case the entire charge must be treated as charging a first offense, the maximum fine for which is $200.

6. CAUSE ONLY REMANDED FOR RESENTENCE WHEN JUDGMENT REVERSED FOR EXCESSIVE SENTENCE.

Where the judgment of a lower court in a criminal prosecution is reversed on error because of the imposition of an excessive sentence, the case will be remanded for proper sentence only.

Dalrymple v. State.

ERROR to Wood common pleas court.

Benj. F. James and Shefler & Campbell, for plaintiff in error.

E. G. McClelland, prosecuting attorney, and W. B. Wheeler, for defendant in error.

HULL, J.

This case, by consent of parties, was heard before two judges, Judge Haynes and myself.

The plaintiff in error, Frank Dalrymple, prosecutes error to reverse the judgment of the court of common pleas and the mayor's court of the village of Rising Sun, in this county.

He was tried before the mayor of the village of Rising Sun for violating the "Beal Law," so-called, or certain provisions of that law, the charge being that under an election duly held in that village, the sale of intoxicating liquors and the keeping of places for the sale of intoxicating liquors had been prohibited, and that the defendant kept and was keeping, on the different dates named in the affidavit, a place for the sale of intoxicating liquors.

There were three counts in the affidavit, charging the keeping of a place for the sale of intoxicating liquors on different dates or different periods, in one or two of the counts the period set forth covering more than one day. The defendant was found guilty by the mayor on each one of the three counts; a motion for a new trial was overruled and he was sentenced to pay a fine of $100 on each count, making $300 in all.'

The plaintiff in error complains that the record does not show that any legal election had been held in the municipality, prohibiting the sale of intoxicating liquors, the chief ground of that complaint being that no evidence was offered that a petition containing 40 per cent of the voters of the municipality had ever been presented to the council praying for an election, and it is claimed that there was no proper evidence before the mayor that any election had been held, or, if there was any election, no proper evidence as to the result of that election.

Section 4364-20a Rev. Stat. provides that whenever 40 per cent of the qualified electors of any municipal corporation shall petition the council thereof for the privilege to determine by ballot whether the sale of intoxicating liquors as a beverage shall be prohibited within the limits of such municipal corporation, such council shall order a special election to be held, and that the result of the election shall forthwith be entered upon the record of the proceedings of the council; and provides that, in all trials for the violation of this act, the original entry of the record, or a copy thereof certified by the clerk of the corporation, provided that said record shows that a majority of the votes cast at said election was against

Wood County.

the sale of intoxicating liquors as a beverage, shall be prima facie evidence that the selling, furnishing or giving away of intoxicating liquors as a beverage, or the keeping of a place where such liquors are sold, kept for sale, given away or furnished, if such selling, furnishing or giving away or keeping such place occurred after thirty days from the day of holding the election, was then and there prohibited and unlawful.

The clerk of the village, Mr. Parmalee, was called as a witness, and it appeared from his testimony that a report was made to him of the election and that he entered the result of the election in a book; that it was not the record of the proceedings of the council but a book that had been kept and used for the purpose of entering elections of this kind at former times, during the terms of his predecessors. This book he could not find, and it was not produced. The clerk testified however that an election was held, that the report was made to him in proper form, and that the vote stood eighty against the sale of intoxicating liquors and seventyfour in its favor, making a majority of six.

The records of a meeting of the council were put in evidence showing that a petition was presented to the council, asking for an election. No certificate of the record showing the result of the election was produced at the trial except one that the clerk prepared about the time of the trial, from the tally sheet or poll book. This certificate was offered in evidence and is attached to the bill of exceptions.

We are of the opinion that while the statute makes the certificate, or what is contained in the records of the proceedings of the council, prima facie evidence of the election, that is not the only way that an election and its results may be proven; that if the clerk fails to record the result as reported to him in the proper book or any book, it does not invalidate the election, if it can be proven clearly by other evidence that an election was held and what the result of that election was. And in this case, the tally sheet or poll book was offered in evidence and is attached to the bill of exceptions, and the clerk testified as to the result of that election as reported to him.

The evidence shows that an election was in fact held and that it was conducted by the regular election officers-all of this being shown affirmatively. The mere fact that the clerk does not make a certificate in proper form, or that he has not recorded the result of the election in the proper book as he was required to do by statute, does not invalidate the election. It requires more than the negligence, carelessness, or dereliction of duty of such an officer as a clerk of a municipality, to invalidate an election which has been duly and regularly held.

It is urged, however, that there is nothing in this record to show