Richland Common Pleas.

From the finding of facts it is also disclosed that the south field of May, by reason of the topography of the ground drains in a southerly and southwestern direction, and that very little, if any, portion of it naturally can drain into the ditch in question, and so the question arises whether or not a servient estate, which but for the construction of an intercepting ditch would naturally receive the surface waters from dominant estate can be held as benefited under the law for the maintenance of a ditch that intercepts the flow of the water from the dominant estate down upon the servient estate, the natural watershed of which is in the direction away from such ditch.

In Blue v. Wentz, supra, in the third syllabus, the court lays down this rule of law:

“In making an assessment on lands benefited by artificial drainage, the extent of their watershed is not the proper rule, but the amount of surface water for which artificial drainage is required to make them cultivatible and the benefits that will accrue to the land from such drainage. However much water may fall on them or arise from natural springs, if, by reason of their situation, they have adequate natural drainage therefor, they are not liable for the cost of artificial drainage to other lands."

In the case at bar, from the finding of facts, it does appear that the south field of May has a drainage towards the east and southeast, and that if it does not drain into the ditch in question, and that the ditch can afford no drainage to it, that the only purpose of the ditch, so far as the adjoining fields are concerned in that locality is to receive the surface water from the Dempsey tract on the west.

In the case of Mason v. Fulton Co. (Comrs.), supra, the court in the syllabus lays down the following proposition:

"A landowner may in the reasonable use of his land drain the surface water from it into its natural outlet, a water course, upon his own land, and thus increase the volume and accelerate the flow of water without incurring liability for damages to owners of lower lands; and his land is not subject to assessment for the cost of a ditch or an improvement that will not benefit its drainage but is constructed to prevent overflow from the water course or to benefit the drainage of the servient lands."

And in Blue v. Wentz, supra, in the first paragraph of the syllabus, this rule is laid down:

"Where the lands of an owner, by reason of their situation, are provided with sufficient natural drainage, they are not liable for the costs and expenses of a ditch necessary for the drainage of other lands, simply for the reason that the surface water of his lands naturally drain therefrom to and upon the lands requiring artificial drainage."

May v. Plymouth Tp.

In other words, the servient estate cannot require the dominant estate to assist in the construction of a ditch that facilitates the flow of water off the land of the servient estate simply upon the ground that some of the water may flow into that ditch. Being surface water, it naturally flows off the dominant estate on to the servient estate, and it would also seem that where a ditch is constructed, which intercepts the waters of the dominant estate, but which offers no direct drainage to the servient estate, that the mere fact that waters, but for such intercepting ditch would naturally flow off the dominant estate on to the servient estate, affords no sufficient reason to hold that the servient estate would be benefited by reason of such ditch. It is true that such ditch relieves, to more or less extent, the burden that otherwise would naturally fall upon the servient estate, but this would be true of each parcel of land in the watershed lying below the intercepting ditch, and to ascertain the benefit to each possible lower servient estate by reason of the construction of said ditch would present a situation that in the end would be almost impossible of calculation and would result possibly in a more inequitable ascertainment of benefits than would be to hold to a rule which was absolutely certain and which in a fair measure was consistent with the benefits to be derived.

So taking these findings of facts as made by the probate court, and the law as this court understands it, we think the court erred in affirming the apportionment made by the ditch supervisor, that in affirming the assessment it appears that the lower court took into consideration the fact that the south field of May was relieved of a great deal of burden by the ditch intercepting the waters from the Dempsey land, which but for said ditch would otherwise naturally flow down upon the land of May.

As this case must be reversed it is proper that the court should lay down a rule as to what should be taken into consideration in determining what benefits May would derive from the cleaning out of this ditch, or at least what lands should be taken into consideration in determining the question.

Under the case of Blue v. Wentz, supra, in making the assessment for the construction of a ditch it would seem that the water coming off of the clover field of May, and flowing down upon the Dempsey land and thence into the ditch, could not be taken into consideration in ascertaining the benefits if any to May's land, however that may be, the statute, so far as the cleaning out of the ditch is concerned, steps in, and in the judgment of this court modifies the rule that may be inferred from that decision, and that is under Sec. 3 of act 99 O. L. 238 which provides:

28 Dec. Vol. 20

Richland Common Pleas.

"For the cleaning out and keeping in repair of all township and county ditches, it shall be the duty of the township ditch supervisor to divide the same into working sections and apportion the same to the landowners, according to the benefits received, and owners of lands not contiguous to the ditch, but the water from whose lands is carried into the ditch, by means of tile or by passing over the lands of others, shall be required to assist in cleaning out and keeping such ditch in repair," etc.

So that the ditch supervisor could properly take into consideration the waters flowing off the clover field in a westerly direction on to the lands of Dempsey, and thence into the ditch, also, any waters coming from the clover field that flowed directly into the ditch through the lands of May, and also, that portion of the south field of May lying east of the ditch from which any surface drainage finds its way into the ditch. Taking all these benefits into consideration May could properly be apportioned so much of the work of cleaning out of such ditch, the apportionment to be made on that section of the ditch or his own property to the extent, taking these matters into consideration to which it appears his land is benefited.

The judgment of the lower court will be reversed for the reasons stated and the apportionment set aside at the cost of the defendant in error. The exceptions of the defendant in error are noted.

CONTRACTS-HUSBAND AND WIFE.

[Hamilton Common Pleas, January 8, 1910.]

GEORGE KRUGER V. D. L. BAUMGARTEN.

1. SECTION 3110 REV. STAT. (GEN. CODE 7997) DOES NOT GIVE ANY ADDITIONAL RIGHTS IN FAVOR OF CREDITORS.

Section 3110 Rev. Stat. (Gen. Code 7997) simply defines the duties of husband and wife with reference to themselves and their children and does not give rise to any additional rights in favor of creditors, or create any additional liability against the wife's property for the maintenance of the family.

2. IN ABSENCE OF CONTRACT, WIFE NOT LIABLE FOR SERVICES RENDERED SON UNDER CONTRACT WITH HUSBAND.

Tuition fees for services rendered to a son under a contract entered into by the husband cannot be made a charge against the wife individually in the absence of a contract with the wife, or circumstances that raise a presumption that she intended to charge her separate estate therefor.

Kruger v. Baumgarten.

Galvin & Bauer, for plaintiff.

J. T. Harrison, for defendant.

GORMAN, J.

This action is in this court on appeal from a judgment of the justice of the peace. The plaintiff, George Kruger, seeks to recover from the defendant, Mrs. D. L. Baumgarten, or Rachael Baumgarten, $128.85 for services rendered to the son of the defendant in giving music lessons between September 6, 1903, and July 7, 1904. The defendant answers under the name of Rachael Baumgarten and says that whatever services were rendered by the plaintiff in the behalf alleged were performed for her husband, D. L. Baumgarten, and that D. L. Baumgarten settled for said services in full by giving his note to the plaintiff for the amount of plaintiff's claim; that said note was accepted by the plaintiff, and when the same became due he brought suit thereon and obtained a judgment against D. L. Baumgarten before Philip Winkler, a justice of the peace in and for Cincinnati township.

The plaintiff by amended reply admits that D. L. Baumgarten, the husband of the defendant, gave plaintiff his note for the amount of plaintiff's claim, and that subsequently to the giving of said note plaintiff brought suit and recovered a judgment thereon by default before the said justice of the peace, but avers that said judgment has not been paid. He further sets out in his reply that at the time said note was given and accepted, said D. L. Baumgarten represented that he alone, and not the defendant, was financially responsible for such debt; that he had ample means to pay the same, and that said note would be paid as soon as it became due. He further sets out that the statements as to the financial worth of D. L. Baumgarten were false and fraudulent and that he, the plaintiff, was misled into accepting said note by said false and fraudulent statements.

Plaintiff further avers that defendant alone is responsible and possessed of ample means, and that she is the wife of D. L. Baumgarten. and the mother of the son to whom the services were rendered, and that defendant alone paid all the bills for household expenses and provided for the education, tuition and maintenance of her children and the children of D. L. Baumgarten; and the plaintiff denies that he accepted said note in full settlement of his claim for services, and denies that the judgment rendered thereon was in full payment of said indebtedness.

The evidence of the plaintiff disclosed that the employment of the plaintiff to give the music lessons to the son of the defendant and D. L. Baumgarten was made with D. L. Baumgarten; that he and he alone employed the plaintiff. There was no evidence that the defendant em

Hamilton Common Pleas.

ployed the plaintiff, nor is there any evidence that the plaintiff charged the services to the defendant, but he did charge them to D. L. Baumgarten. Some time after the services were rendered the plaintiff met D. L. Baumgarten, and upon threatening to bring suit against Baumgarten to recover the value of his services, D. L. Baumgarten gave his individual note to the plaintiff for the amount of the plaintiff's claim, and the plaintiff accepted the note and when it became due, brought suit thereon and recovered a judgment. There was no evidence before the court that the judgment has ever been satisfied; but on the contrary there is a statement that nothing has ever been realized on the judgment.

At the close of plaintiff's evidence the court, on motion of defendant's counsel arrested the case from the jury and instructed the jury to return a verdict in favor of the defendant. Motion for a new trial was filed in due time and that motion is now passed upon.

This action was commenced upon the theory of plaintiff's counsel that the wife, Rachael Baumgarten, is liable to the plaintiff for his services under Sec. 3110 Rev. Stat. (Gen. Code 7997), notwithstanding the giving of the note of D. L. Baumgarten, the acceptance thereof by the plaintiff, and the judgment rendered thereon in favor of the plaintiff against D. L. Baumgarten.

Section 3110 (Gen. Code 7997) reads as follows:

"The husband must support himself, his wife, and his minor children out of his property or by his labor. If he is unable to do so, the wife must assist him so far as she is able."

This section is a part of the married woman's act, passed March 19, 1887 (84 O. L. 132), by the provisions of which act the legislature of this state emancipated the wife from the domination of the husband, except as to the obligations that she owed to him by reason of the marital vows and contract. Under the provisions of this act of 1887, a married woman may contract and be contracted with, and hold and convey property as though she were unmarried. The only act she cannot do is to affect her marriage relations. This can only be done by decree of a court of competent jurisdiction. Her private estate is hers absolutely, subject to her husband's dower and other rights therein conferred by statute.

The court is of the opinion that this Sec. 3110 (Gen. Code 7997), under which it is sought to hold the defendant, does not create a legal liability against the wife even for the necessaries of the family, in the absence of a contract with her, or circumstances which raise a presumption that she intended to charge her separate estate therefor.

It seems to the court that this section simply defines the duties of husband and wife with reference to themselves and their children, and does not give rise to any additional rights in favor of creditors, or create