Richland Common Pleas

interest. Williams v. Matthews, 47 N. J. Eq. 196 [20 Atl. Rep. 261]; Story, Eq. Plead. Sec. 292.

7. And, lastly, the party interpleading must bring or offer to bring the money or thing claimed into court, so that he can not be benefited by delay in payment. Crane v. McDonald, 118 N. Y. 648 [23 N. E. Rep. 991]; Bassett v. Leslie, 123 N. Y. 396 [25 N. E. Rep. 386]; Travelers' Ins. Co. v. Healey, 86 Hun. 524 [33 N. Y. Supp. 911]; Gibson v. Goldthwaite, 7 Ala. 281 [42 Am. Dec. 592].

The supplemental answer of the defendant does not bring nor offer to bring the money due from it on the policy of insurance into court, and therefore it lacks one of the essential elements of the interpleader.

The answer and supplemental answer must be read together, and so read must be regarded as the answer of the defendant in the case. The original answer denies title or right of the plaintiff in the money sought to be recovered in this action, and in that respect the answer differs from the allegations which must be set forth in a bill or answer in interpleader.

Our conclusion is that the facts contained in the supplemental answer are such as are intended to show that the plaintiff has no right to recover, and that the court would not be justified in requiring the defendant to elect between reliance upon the facts contained in the original answer and the facts set forth in the supplemental answer, and the motion is overruled.

Much of the oral argument of counsel and of their written briefs has not been referred to nor considered in the opinion on this motion for the reason that they go to the question of the plaintiff's right to maintain the action, in view of the facts as shown by the pleadings; and as we have already said, the cause is submitted to the court solely on the motion filed by the plaintiff to compel an election by the defendant.

ON MOTION BY THE DEFENDANT TO REQUIRE THE PLAINTIFF TO BRING IN THE EXECUTORS OF CHARLES H. HACKLEY AND THE HACKLEY NATIONAL BANK AS NECESSARY PARTIES TO THIS ACTION, AND UPON FAILURE TO DO TO DISMISS THE ACTION.

This cause now comes on for consideration on the motion filed by the defendant to require the plaintiff to bring in the executors of Charles H. Hackley and the Hackley National Bank of Michigan as necessary parties to this suit, and on her failure to bring them in to dismiss her action.

The plaintiff in her reply admits she executed and delivered the assignment of the policy of insurance as alleged by the defendant in its answer, but says that under the statute law of Michigan the as

Swett v. Insurance Co.

signment is void. She also pleads no consideration, and the extension of time on the notes to avoid the assignment of the policy.

That the Michigan parties are necessary to the correct determination of this case there can be no doubt. If the courts of this state on the legal propositions involved in this case should sustain the claims of the plaintiff, and the federal court hold in favor of the Michigan parties, the defendant would have to pay the money twice, a manifest injustice which no court in a civilized country would sanction. If our courts should sustain the contention of the defendant, and the Michigan court adopt the plaintiff's view, the defendant would escape paying a valid debt, a result equally as unjust. It is manifest, therefore, that the rights of the parties to the fund in suit must be adjudicated by the same tribunal.

Counsel for plaintiff eloquently declare in their oral argument: "She (the plaintiff) does not propose to go to the courts of Michigan to litigate a matter that she has a right to litigate in the courts of Ohio; nor does she propose to be turned out of doors when she has once appealed to the jurisdiction of the Ohio courts."

Counsel's argument is calculated to touch our state pride and excite sympathy for the plaintiff, a woman, even as the declaration, "Where the American flag has once been raised no hand will be permitted to haul it down," stirs our patriotism.

But neither chivalrous sentiments, pride of state, nor love of country, should make us forget the blind goddess with her sword and scales. Even-handed justice must be administered although it be necessary to turn a litigant out of court or haul down the American fiag.

a case.

Counsel for plaintiff cite R. S. 5016 (G. C. 11265) of Ohio, and say it was passed for the purpose of taking care of just this kind of We cannot agree with counsel. That section can only apply to persons who may be reached by the process of the court. It assumes to deal with parties only who are within the court's jurisdiction. It was not intended to apply, and could not apply, to two or more persons claiming the same fund by suits in as many different states. The decided cases of the Ohio courts cited by counsel for both parties aid us but little for that reason; they are all (except the nisi prius case of Erie county) cases where the parties were within the territorial jurisdiction of the court, and they should be read in the light of that fact.

It is said that it will impose a great hardship on the plaintiff if she is required to go to Michigan to litigate her rights, and that the defendant is responsible for the present condition of matters pertaining to this case. We fail to see the force of the argument. The plain

Richland Common Pleas.

tiff was a resident of Michigan when the policy was issued, and it was her domicile when the alleged assignment of the policy was made by her and her husband, and remained her domicile till after the death of her husband. She by her own act, which could not be controlled by defendant, changed her domicile to Ashland county, this state, and by her own voluntary act brought this action here; and by the process of this court brought the defendant within its jurisdiction without its will or consent, and now invokes the authority and jurisdiction of the court for a judgment. The argument that the defendant could have protected itself from being put in its present situation by a provision inserted in its policy, does not appeal strongly to the court.

The plaintiff has by her own voluntary acts created the present condition of affairs. She assigned the policy in Michigan when she was domiciled there to parties now resident there. The policy is now in the hands of the Michigan parties. She then left that state and came here and brought this action. We think it would be no injustice to her to require her to go back to Michigan and meet the parties with whom she dealt there in a court of that state to litigate her claims. We have examined the authorities cited by counsel in their briefs, but this already too lengthy opinion should not be made longer by any further comments of the court.

The motion is sustained with exceptions.

CANALS.

[Licking Common Pleas, April Term, 1909.]

COLUMBUS, N. & Z. ELEC. RY. v. JOHN NELSON ET AL.

TITLE OF STATE IN SELECTED CANAL LANDS SUPERIOR TO SUBSEQUENT UNITED STATES PATENT.

Lands having been selected by the state for canal purposes under act of congress of May 24, 1828, the title of a lessee under the state is superior to that claimed under a patent subsequently issued by the United States.

W. R. Pomerene and J. R. Fitzgibbon, for plaintiffs.

Flory & Flory, for defendants.

SEWARD, J. (Orally).

This case is submitted to the court upon the pleadings and the evidence. The suit is brought by the two railway companies, the Columbus, Newark & Zanesville Electric Railway Company and the Ohio Electric Railway Company, against Nelson and his wife, and some man named Bell, whose first name is not given in the petition. I

Railway v. Nelson.

do not know why his name is there. I do not know whether he was brought in by summons or not, and no allegation seems to be made against him.

The plaintiffs allege that they are the owners of certain real estate abutting upon Buckeye lake for some two thousand feet, and running back a distance of some four hundred feet; that the defendants, Nelsons, are preparing to and will, unless restrained, enter upon the lands of plaintiffs, dig up the ground and erect buildings thereon, without any consent or authority from the plaintiffs. An injunction was asked and granted.

The answer admits that the plaintiff owns certain real estate, but denies that they have any interest, right or title to these lands. The cross petition sets up title in the state, and claims that Mrs. Nelson's rights are based upon a lease from the state. She says that she was erecting a pier and certain structures upon lots 48 and 49; charges that the plaintiffs entered upon the same and removed the structures and destroyed the piers, and she prays for an injunction.

The real controversy therefore is as to whether the plaintiffs, or either of them, own the real estate upon which the defendants were erecting their structures or building the piers.

The plaintiff's claim that the matter in dispute is:

First. As to whether the state of Ohio has title to a strip of ground twelve and twelve one-hundredths feet wide above and outside of high watermark.

Second. As to what is the present high watermark.

Third. As to what was the original high watermark when the reservoir was first built.

The defendants claim that the matter in dispute is not the twelve and twelve one-hundredths foot strip, but whether the plaintiffs owned or had any interest in the ground upon which she was erecting her structures. She claims, and I think not without good reason for it, that the two buildings, one larger than the other, were being erected, one of them thirty-six feet below high watermark; the other thirty feet below high watermark, or substantially that distance, and that the pier was about thirty feet below high watermark. So that if her contention is true, neither of these buildings nor the pier approached the twelve and twelve one-hundredths foot strip. And I think she is right about that; I think that neither of the buildings nor the pier interfered with or approached this twelve and twelve one-hundredths foot strip. This strip is what is claimed as necessary for the berme bank of the canal; and it is claimed to be so because it is necessary to prevent the water of the canal from overflowing. It is claimed by the

45 Dec. Vol. 20

Licking Common Pleas.

plaintiffs that that does not apply to the reservoir, to Buckeye lake; but the court does not think that the twelve and twelve one-hundredths foot strip is in controversy in this case. The plaintiffs claim title through a patent issued to one Holtsberry, in the year 1842, by the United States; that the state never acquired any title to the land patented to Holtsberry. The defendants claim title by lease from the state of Ohio to land taken possession of by the state for canal purposes. There is some controversy as to whether this was for canal purposes or not. The court thinks it was. The reservoir was built and maintained for canal purposes, to feed the Ohio canal. It is not claimed that the state got this by grant; probably in some few instances there might be some deeds from individual owners of the lots, but there are none shown. Whatever title the state got has come not by grant but under the provisions of Sec. 8 of the act of 1825 (Chase 1472).

That act recites in substance that it shall be lawful for the canal commissioners to enter upon and take possession of any lands necessary for the prosecution of the improvements, and in case any lands taken possession of shall not be granted or given to the state, it shall be the duty of the commissioners to appoint three appraisers who shall make a just and equitable appraisement or estimate of the loss or damage, etc., and the land so appropriated shall thereby be vested in the state in fee simple; that, within a certain time, the persons whose lands were thus taken by the state, might come in and claim the amount of damage set off by the appraisers; and if they did not do it, the land became the property of the state, and became vested in the state, in fee simple, by virtue of this section of the statute, Sec. 8 of the act of 1825.

State v. Snook, 53 Ohio St. 521 [42 N. E. Rep. 544], holds that any lands in any manner acquired under the provisions of Sec. 8 of the act of 1825, became the property of the state in fee simple.

State v. Railway, 53 Ohio St. 189, holds to the same effect: "By force of the provision of section 8 of the act to provide for 'the internal improvement of the state of Ohio by navigable canals,' 23 O. L. 57, whenever the state actually occupied a parcel of land for canal purposes, a fee simple title thereto at once and by virtue, alone, of such occupancy, vested in the state."

State v. Griftner, 61 Ohio St. 201 [55 N. E. Rep. 612], holds to the same effect.

It is claimed by the plaintiff that the patent to Holtsberry gave title as against the state, and the question is: What would be the effect of the state taking possession of the lands of the United States?

Under the act of congress, dated May 24, 1828, shortly after this