Public Improvements-Railroads.
Section 3333-1 Rev. Stat. is not ap-
plicable to street railway crossing
steam railroad. Dayton & U. Ry. v.
Traction Co.
1
Street and steam railways are sep-
arately and distinctly classified and
recognized by Ohio statutes, and laws
applicable to one are not necessarily
applicable to the other.
Whether the necessities of a railroad
demand exclusive occupancy of its
right of way, and what use of the
property by an abutting owner is a
detriment to or interference with the
company's rights, are questions of fact
and not of law. Smith v. Railway.
44
Duty required of brakeman to be
cautious and careful does not impose
absolute duty to look for danger at all
times. Lake Shore & M. S. Ry. v.
Fisher.
143
Inexperienced brakeman not charged
with knowledge of dangerous obstruc-
tions along track in absence of notice
thereof.
Ib.
Location of switch staff in close
proximity to railroad tracks, held neg-
ligence.
Ib.
Railroad right of way, not needed
for proper exercise of its franchise
is subject to right of eminent domain.
Clev. C. C. & St. L. Ry. v. Railway.
Municipality may extend a street
across railroad tracks, provided such
use does not defeat original use. Ib.
Title of railroad right of way not
needed as such, is extinguished in
street extension. When such street
use interferes with railroad franchise
the remedy is one for damages. Ib.
Section 3365-11 Rev. Stat., regu-
lating the employment of conductors,
etc., not a valid exercise of police
power. Railway v. State.
348
Not necessary to set forth in arti-
cles of incorporation names of town-
ships through which a proposed railway
is to be extended. The counties, only,
are required to be mentioned.
v. Railway.
Hayes
395
A railroad corporation is not dis-
solved by the appointment of a re-
ceiver. Monnett v. Railway.
469
Conditions subsequent and covenants
in a deed regarding location of a rail-
road station, distinguished.
Ib.
A steam railroad occupying its own
right of way is not liable for dam-
ages naturally resulting to adjoining
improved property, from noises, smoke,
etc. Cincinnati Connec. Belt. Ry. v.
Burski.
485
A master is not responsible for the
wrongful act of his servant unless the
act be done in the execution of author-
ity, express or implied, given by the
master. A railroad company is liable
for the willful wrong of its employe
in expelling a trespasser from its
freight train while in motion to his
injury only upon proof that the act
was done by such employe, in the
course of his employment and within
the scope of his authority. What must
be shown to hold company for such
expulsion. Brakeman of freight train
has no implied authority to expel tres-
passer. Whistler v. Cowan.
A contract by a prospective employe
with a railway company, waiving dam-
ages for personal injuries, is not with-
in the inhibition of Sec. 3365-20 Rev.
Stat.. if the injury occurred before
the execution of the contract; che right
to damages which cannot be released
is one thereafter arising. Bowers v.
Railway.
518
Re-employment of injured employe
by railroad company not against public
policy. A contract of employment in
no stipulated capacity, for no stated
period, except such as may be satis-
factory to the employer, and for no
designated wages, does not imply mu-
tuality.
Ib.
Negligence of railroad in running
at a high rate of speed, and in failing
to ring a bell on approaching a cross-
ing, will not excuse a traveler's negli-
gence in failing to look and listen.
Norfolk & W. Ry. v. Tea Co. 547
Risk assumed by section men of
approach of trains and absence of rule
requiring warning thereof. Green v.
Railway.
609
A duty is imposed upon railroads
to furnish a reasonably safe place for
employes to work. Employe bound to
know dangers when facts simple and
conditions not complex.
Ib.
REAL PROPERTY-
Judgment in action to recover real
estate upon forfeiture of leasehold and
mesne profits cannot be pleaded in bar
to action for rent accrued prior to
10
forfeiture. Linke v. Walcutt.
An executed parol license in land is
irrevocable, when granted for a valu-
able consideration; and where a
definite understanding exists between
competent parties, an executed license
is not affected by reason of not being
in writing, but if such understanding
be lacking claimant must establish his
right by an adverse possession for
twenty-one years. Smith v. Railway.
Water pipe passes as an appurce-
nance under general warranty deed,
when. Turner v. DeWitt.
77
RECEIVERS-
Court cannot imprison party dis-
obeying order made under Sec. 5483
Rev. Stat. as for contempt. First
Nat. Bank v. Clauss.
Judge acting under Sec. 5483 Rev.
Stat. may appoint receiver to hold
money in dispute.
Ib.
Appointment of, does not dissolve
railroad corporation. Title does not
vest in receiver, and the company may
be sued as such. Monnett v. Railway.
469
RECORD-
Record of deed for fee to railroad
right of way and entry thereunder are
evidence of adverse claim and con-
tinuous hostile possession for twenty-
one years grants a title for prescrip-
tion therein. Smith v. Railway. 44
REFORMATION OF WRITTEN IN-
STRUMENTS-
Equity will cancel and reform re-
lease of conditions in deed obtained by
fraud. Monnett v. Railway.
Right of church college as grantee
of church property held in fee by its
trustees to mortgage same after aband-
onment as cemetery. Methodist E.
Church v. Gamble.
295
Conveyance for burial purposes vest-
ing in trustees of church fee simple-
act of March 27, 1861, construed. Ib.
REMOVAL OF CAUSES-
Right to insist that cause is re-
moved to federal court not lost by mak-
ing defense or appealing in the state
common pleas. Monnett v. Railway.
469
No federal questions involved in an
action against a railroad company to
quiet title, etc,. although the federal
receiver of such road was made a party
defendant.
Ib.
Vendor may rescind for vendee's
failure to pay for installment deliv-
eries.
Tb.
Section 5437 Rev. Stat.., allowing
exemptions in lieu of homestead out
From damages for personal injuries.
See RAILROADS.
of proceeds of sale is applicable to
voluntary sales. Bretz v. Moore. 66
Heirs sui juris, voluntarily agreeing
to sale of mortgaged premises and
after payment of mortgage indebted-
ness to deliver balance of proceeds to
administrator are estopped from deny-
ing sale or right of widow to dower
and homestead in such balance. Ib.
Sale of chattels to be paid for in in-
stallments with title to remain in ven-
dor is within Sec. 4155-2 Rev. Stat.
Vendor cannot replevin same without
returning part of purchase
Richcreek v. O'Donnell.
Statute of Frauds-Streets and Highways.
STATUTE OF FRAUDS
Part performance must relate strict-
ly to contract to take it out of the
statute. Burckhardt v. Green.
315
Facts not constituting part perform-
ance so as to take contract out of
Ib.
statute of frauds.
Street and steam railways are sep-
arately and distinctly classified and rec-
ognized by Ohio statutes, and laws
applicable to one are not necessarily
applicable to the other. Dayton &
U. Ry. v. Traction Co.
Amendment 96 O. L. 17 dispensing
with necessity of entry upon court
journal, and, providing that signature
by trial judge shall be sufficient evi-
dence of settling and allowance, etc..
does not dispense with order to make
bill of exceptions part of record.
Strauck v. Stoneware Co.
73
Police regulations not interpreted
as are revenue laws. Word, "dealer,"
as used in Sec. 4200-11 Rev. Stat. in-
cludes persons selling milk from his
221
own cows. Guilder v. State.
New school code does not deprive
clerk of board of education, chosen be-
fore its enactment of the right to
qualify after it became a law. State
301
v. Cave.
Law must provide for public safety
to be sustained as police measure. Rail-
348
way v. State.
Dentist not legally practicing when
Sec. 4404 Rev. Stat. was enacted, is
governed by the restrictions therein.
State v. Dental Examiners.
Section 4404 Rev. Stat., governing
practice of dentistry, not unreasonable.
Right to make application for a cer-
tificate under former dental laws not
a "cause of proceeding" under Sec. 79
Rev. Stat.
Ib.
Section 1536-933 Rev. Stat., does
not repeal that part of Sec. 4105 Rev.
Stat.. providing for the levy of taxes
for the support of municipal univer-
sities. Waddick v. Merrell.
437
Section 1536-933 Rev. Stat., does
not repeal that part of Sec. 4105 Rev.
Stat.. providing for the levy of taxes
for the support of municipal univer-
sities.
Sections 546, 547, 719, 753, 759,
1129, 4022, 4022-8, 6470 Rev. Stat.,
construed as relating to costs and fees
of probate judge in certain cases.
lard v. Conrade.
Section 3365-20 Rev. Stat. only in-
hibits releasing claims for damages
accruing before execution of release.
Bowers v. Railway.
Part of an ordinance may be valid
and part invalid. Sterling v. Bowling
Green.
581
Judicial power is not conferred upon
a city auditor and chief of police by an
ordinance which provides that if the
former is not satisfied with the de-
scription of vehicles furnished by an
applicant for a vehicle license, the
matter shall be referred to the latter
for examination and report. Ib.
An ordinance imposing graduated li-
cense fee upon owner of any vehicle
using the streets is not in conflict with
Secs. 1 and 2, Art. 1 of the constitu-
tion.
Ib.
See also TABLE OF STATUTES CITED.
CONSTRUED, ETC., in first part of this
volume.
STREETS AND HIGHWAYS-
Municipalities have power to make
street improvements without petition
of abutters. Thornton v. Cincinnati.
Streets and Highways-Street Railways.
STREETS AND HIGHWAYS-Con.
Construction of tile drain not sep-
arate and distinct improvement. Tay-
lor v. Wapakoneta.
285
Collection of street improvement as-
sessment will not be enjoined because
of insufficient notice when assessment
does not exceed benefits and the party
objecting had legal notice of filing of
petition for improvement and stood by
without objection by legal proceeding.
Ib.
Collection of street improvement as-
sessment will be enjoined until im-
provement is completed.
Ib.
Council may construct tile drain as
part of street improvement when nec-
essary to effectuate and complete such
improvement.
Ib.
The fact that there was no legally
chosen officer as "city engineer" where
a person so qualified had been acting
as such with officers in the county
surveyor's office to the common knowl-
edge of all in the village does not ren-
der an advertisement for street im-
provements, directing bidders to see
plans and specifications in "city engi-
neer's" office, misleading.
Ib.
Collection of street improvement as-
sessment will not be enjoined because
of insufficient notice when assessment
does not exceed benefits and the party
objecting had legal notice of filing of
petition for improvement and stood by
without objection by legal proceeding.
Collection of street improvement as-
sessment will be enjoined until im-
provement is completed.
Ib.
Where streets are named as boun-
daries and do not meet, their lines are
to be considered as if extending to
the meeting point; and where a cer-
tain "river" is mentioned without nam-
ing it, the first river in the direction
indicated is meant. Chittenden V.
Columbus.
531
The owner of a fee in highway has
all the uses incidental to the property
not inconsistent with the dominant es-
tate. and until the exercise of the ease-
ment is asserted, any use by the owner
of the fee is not in itself adverse.
Boiler Mfg. Co. v. Greenwald Co. 556
Adverse possession is shown by the
exercise of dominion over a strip of
land over which another claims a
roadway, treating it as an appurtenant
to adjoining property, erecting per-
manent buildings thereon, enclosing
part of the way with a fence and pay-
ing no respect to its use as a roadway,
for more than twenty-one years. Ib.
In a proceeding by a council to ap-
propriate for the extension of a street,
it is necessary to pass the preliminary
resolution and give notice as required
by Lan. R. L. (R. S. 2235) but the
probate court has no jurisdiction to
determine whether or not such resolu-
tion was passed, and the notice given;
the only remedy of the owners is an
action to restrain municipality from
proceeding to assess compensation and
from taking possession of the property.
Erie Ry. v. Youngstown.
679
County commissioners not required
to proceed de novo after report
of reviewers. Cin. H. & D. Ry. v.
Brossia.
773
Where the commissioners order the
payment of the costs and damages
forthwith as a condition precedent to
the establishment of a road it must
affirmatively appear that they were
not paid forthwith in order to consti-
tute error for which the proceedings
should be reversed. It would be in
substantial conformity with such or-
'der if the costs and damages were
paid immediately prior to the time
that the order was made for the estab-
lishment and opening of the road. Ib.
The costs and damages arising from
the establishment of the county road
should be paid into the county treas-
ury, and not directly to the claimants.
Ib.
STREET RAILWAYS-
Street and steam railways are sep-
arately and distinctly classified and
recognized by Ohio statutes, and laws
applicable to one are not necessarily
applicable to the other. Dayton & U.
Ry. v. Traction Co.
1
Section 3333-1 Rev. Stat. is not ap-
plicable to street railway crossing
steam railroad.
Ib.
Street railway along street is not
a new servitude thereon entitling abut-
ter to additional compensation. Clev.
C. C. & St. L. Ry. v. Railway. 180
Electric street car is a vehicle to
which the use of a street extended
across a railroad right of way is sub-
ject.
Ib.
Interurban railways may construct
extensions and branches and cross
steam railway at grade.
Ib.
Question of notice under Sec. 2502
Rev. Stat. may be raised by steam
railroad to enjoin construction and
operation of street railway on a street
extended across its right of way.
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