(98 Fed. 240.) HOLMES v. PHENIX INS. CO. OF BROOKLYN, N. Y. No. 1,236. 1. INSURANCE-CONSTRUCTION OF POLICY. In a policy of insurance against "loss or damage by wind storms, cyclones, or tornadoes," containing a provision that the company "will not be liable for any loss or damage that may occur from hail or lightning, directly or indirectly, or by the blowing down of chimneys, loose clapboards, weather vanes and shingles, unless other damage occur," the words, "unless other damage occur," apply only to the last member of the sentence, relating to minor damage by wind, and the company is not liable, in any event, for loss or damage occurring from hail or lightning. 2. CONTRACTS-RULES OF CONSTRUCTION-PUNCTUATION. The construction of a written contract is determined by the words used, and their relation to each other, and not by the punctuation. In Error to the Circuit Court of the United States for the Western District of Missouri. Sanford B. Ladd (John C. Gage and Charles E. Small, on the brief), for plaintiff in error. M. A. Fyke, Ed. E. Yates, C. V. Fyke, and E. L. Snider, for defendant in error. Before CALDWELL, SANBORN, and THAYER, Circuit Judges. CALDWELL, Circuit Judge. The Phenix Insurance Company of Brooklyn, N. Y., insured "James T. Holmes against loss or damage by wind storms, cyclones, or tornadoes" to the building described in the policy. The policy contains this provision: "This company will not be liable for any loss or damage that may occur from hail or lightning, directly or indirectly, or by the blowing down of chimneys, loose clapboards, weather vanes and shingles, unless other damage occur." The building insured was damaged by a wind and hail storm, the chief damage occurring from the hail. The insured brought this action against the insurance company to recover for the damage done to the building by the hail as well as by the wind. The lower court instructed the jury that "all damage done to this building which was the result of the injury done by hail is not recoverable in this action for the reason that the policies exempt the company from damage or loss from hail." The giving of this instruction was duly excepted to by the plaintiff, and is the only error assigned. The contention of the learned counsel for the plaintiff in error is that, when it was shown that damage was done to the building by the wind, the company was also liable for the damage done by the hail; that the words in the clause of the policy last quoted, "unless other damage occur," are not restricted to the last member of the sentence, namely, to damage done by the wind other than that done "to chimneys, loose clapboards, weather vanes and shingles," but that those words relate back to the first member of the sentence, and include damage done by "hail and lightning." The clause will not admit of any such construction. The words, "unless other damage occur," are manifestly restricted to the last member of the sentence, and refer to damage occurring from the thing insured against, namely, “wind storms," and are operative when the wind has damaged the building over and above "the blowing down of chimneys," etc. The obvious meaning of these words is precisely the same as if the clause read, "unless other damage occur" from wind. The last two words, which we have italicized, are plainly implied, and what is implied in a contract is as much a part of it as what is expressed. When the meaning of a statute or contract is perfectly plain and unambiguous, any ratiocination to make it plainer simply serves to make that which was before plain obscure. But it is said that in the policy the two members of this clause are divided by a comma only, and stress is laid upon this fact. But in a contract the words, and not the punctuation, are the controlling guide in its construction. Punctuation is no part of the English language. The supreme court say that it "is a most fallible guide by which to interpret a writing." Ewing's Lessee v. Burnet, 11 Pet. 41, 54, 9 L. Ed. 624. The Century Dictionary tells us, what is common knowledge, that "there is still much uncertainty and arbitrariness in punctuation." It is always subordinate to the text, and is never allowed to control its meaning. The court will take the contract by its four corners, and determine its meaning from its language, and, having ascertained from the arrangement of its words what its meaning is, will construe it accordingly, without regard to the punctuation marks, or the want of them. The sense of a contract is gathered from its words and their relation to each other, and, after that has been done, punctuation may be used to more readily point out the division in the sentences and parts of sentences. But the words control the punctuation marks, and not the punctuation marks the words. If there was not a punctuation mark in this whole clause, its meaning would be plain, and, whether a comma or a semicolon is placed between the two members of the sentence, the two members are there, separate and distinct, as a result of the obvious meaning of the words and their arrangement. The comma and semicolon are both used for the same purpose, namely, to divide sentences and parts of sentences, the only difference being that the semicolon makes the division a little more pronounced than the comma; but at the last it is the sense of the words, taken together, that dictates where the punctuation marks are to be placed, and what they shall be. Another contention of the plaintiff in error is that the insertion of the provision regarding hail is tantamount to a declaration on the part of the company that, without it, the policy would have bound the company to pay for damage done by hail. There is no ambiguity in either clause, and no conflict between them. The insurance clause plainly states what it insures against, namely, "wind storms, cyclones, and tornadoes," not hail or hail storms. The two clauses are cumulative, but in no sense inconsistent or conflicting. The rule for interpretation and construction of policies of insurance is pressed upon our attention to the effect that: "If a policy is so drawn as to require interpretation, and to be fairly susceptible of two different constructions, the one will be adopted that is most fa vorable to the insured. This rule, recognized in all the authorities, is a just one, because those instruments are drawn by the company." Thompson v. Insurance Co., 136 U. S. 287, 297, 10 Sup. Ct. 1023, 34 L. Ed. 413. Many other decisions of the supreme court of the United States and other courts, to the same effect, are cited. We recognize in the fullest manner the binding obligation of these settled canons of construction. But when, as in the case at bar, there is no ambiguity in the policy, and no inconsistent or conflicting provisions, and nothing requiring construction or interpretation, there is no room for their application. The judgment of the circuit court is affirmed. (98 Fed. 242.) CITY OF CLEVELAND v. BIGELOW et al. (Circuit Court of Appeals, Sixth Circuit. November 13, 1899.) No. 743. 1 EJECTMENT-TITLE TO SUPPORT ACTION-RULE OF FEDERAL COURTS. It is the settled law of the federal courts that a plaintiff in ejectment must show a good legal title in himself, and must recover, if at all, upon the strength of his own title, and not upon the weakness of that of his adversary. 2. BOUNDARY OF CITY LOT-DISCREPANCY BETWEEN PLAT AND MINUTES OF SURVEY. A plat of a city, as originally laid out, which was recorded, and by reference to which conveyances were made, showed that a particular lot at the intersection of two streets was not rectangular, but that the exterior corner had been taken off, and added to the width of one of the streets. The minutes of the original survey contained a statement of the width of the street, without showing that it was not of uniform width throughout, as in fact it was, as shown on the plat, except at this particular corner, where it terminated. Held, that the plat and minutes were not inconsistent, but that, even if contradictory, the plat would control as to the boundary of the lot, where it was the settled policy of the state, as shown by its statutes, to require the recording of plats of cities and towns. In Error to the Circuit Court of the United States for the Northern District of Ohio. M. G. Norton and Ford, Boyd & Crowl, for plaintiff in error. Before TAFT, LURTON, and DAY, Circuit Judges. DAY, Circuit Judge. This suit, having been removed from the state court, was tried in the circuit court for the Northern district of Ohio, to recover possession of certain real estate in the city of Cleveland. The petition is an ordinary one in ejectment for the recovery of real estate, and describes the premises as being "all that part of original lot 97 in the plat of the village of Cleveland (now the city of Cleveland) lying southwesterly of a line commencing upon the southerly line of Huron street, at a post standing sixteen rods and thirteen feet westerly from the intersection of the westerly line of Miami street with the southerly line of said Huron street, and drawn thence northwesterly direct to a point on the easterly line of Ontario street, distant twenty-five rods four feet southerly from the northwest corner of said original lot 97." The city of Cleveland interposed a general denial of the allegations of the petition, and set up that the land described was, on April 9, 1831, deeded by one Horace Perry to plaintiff in error for the use of a road or highway; that said deed had been duly recorded, and said city had accepted the grant, and continuously owned and kept said premises. To the answer of the city a reply was filed admitting that the premises in question had been deeded at the time claimed in the petition by said Horace Perry to the trustees of the city of Cleveland to be used as a road or highway, but denying that the city had held, kept, or used said premises for said purpose. John W. Wardwell, as receiver of the Cleveland, Canton & Southern Railroad Company, was originally a party to the suit, but the issues between the plaintiffs and said Wardwell were determined by a consent judgment, and the case went to trial to a jury as to the issues joined between the plaintiffs and the city of Cleveland. At the trial the plaintiffs abandoned all claim to a portion of the property described in the petition, and claimed a legal title and right of possession in a part of the premises, for which they recovered a verdict and judgment. From the testimony and the admissions of the pleadings, it appears that both parties claimed title under Horace Perry, who, up to the time of the conveyance to the city on April 9, 1831, may be regarded as the owner of the property in controversy. It was evidently the purpose of Perry to deed so much of lot 97 to the city of Cleveland as is described in the petition and answer. The testimony in the case, without reference to certain maps of the city, the competency of which were controverted in the court below, shows that lot 97 was one of the original lots on the plat of the village, now city, of Cleveland, and can be best understood by reference to Exhibit A, with its accompanying minutes, which was admitted in testimony from the Cuyahoga county records, and Exhibit B, also admitted in evidence from the same source. Exhibit A. "Cleveland Survey, by Amos Spafford, in 1801. "Minutes of the survey of the outlines, roads, lands, and square of the city of Cleveland, as surveyed for the Connecticut Land Company in the year 1796, by Augustus Porter, said minutes retaken by Amos Spafford, surveyor, November 6, 1801: Said city is bounded as follows, viz.: Beginning on the lake shore, on the east bank of the Cuyahoga river: then eastwardly, on the shore of the lake, one hundred and two chains; then south, 34 degrees east, eightyeight chains and fifty links; then S., 56 degrees W., thirty-eight chains fifty links; then N., 34 degrees W., ten chains and 50 links; then S., 56 degrees W., to the bank of the Cuyahoga river; thence down said river as it winds and turns to the place of beginning,-containing in the whole about five hundred and twenty acres, through which the following roads are laid, in the following manner (viz.): Bath street, so called, begins in the east bank of the Cuyahoga river, seven chains 50 links above where it empties into Lake Erie; thence N., 66 degrees E., thirty chains, to a large white-oak post standing in the west line of Water street; all the lands between said lines and the lake is included in said Bath street, and is from 3 to 5 chains wide. Water street is bounded by said post on the west side, and is one chain and 50 links wide, and runs from said post N., 34 degrees W., to the lake shore; then S., 34 degrees E., 29 chains to a white-oak post standing on the northwest corner of Superior street. Superior street is two chains in width, and begins at said last-men tioned post, and runs N., 50 degrees E., 50 chains and 50 links, to a white-oak post standing on the west line of Erie street. Erie street begins at the lastmentioned post, and is one chain and 50 links wide, and runs N., 34 degrees W., 32 chains, to the lake shore; then from said post S., 34 degrees E., 55 chains, to a white-oak post marked 'E. S. No. 133.' Ontario street begins at a post standing on the bank of the lake in the west line of said street, 24 chains east of the east line of Water street; then running S., 34 degrees E., 51 chains, to a post standing in the north line of Huron street; said street is one chain and 50 links wide. Huron street begins at a post in the north line of said street, on the east bounds of the city, 33 chains north by west from the southeast corner of said city; then running S., 54 degrees W., 53 chains, to the east bank of the Cuyahoga; said street being 150 links wide. Ohio street is 150 links wide, and begins at a white-oak post standing in the north line of said street, and in the west line of Erie street, 11 chains 50 links north of the south line of the city; then running south, 54 degrees W., 16 chains, to a white-oak post marked 'O. S. No. 117'; then turning at right angles, and running in the east line of said street twenty chains, to a white-oak post standing in the south line of Huron street. Lake street is 150 links wide, and begins at a white-oak post standing in the north line of said street, and in the west line of Erie street, 21 chains and 50 links north, 34 degrees west, from the northeast corner |