We think it is clear in this case that the conductor was simply obeying the orders of the master when he undertook to eject an intoxicated man from the car, and that if he added thereto any willful wrong, the company became liable.

But it is contended that the company can not be held for punitive damages in this class of cases. We think this question is answered by the Supreme Court in the case of The Western Union Telegraph Company v. Smith, 64 O. S., at page 117, wherein the court quotes with approval the following:

"That a corporation may be subjected to exemplary or punitive damages for tortious acts of its agents or servants done within the scope of their employment, in all cases where natural persons acting for themselves, if guilty of like tortious acts, would be liable for such tortious damages.'

As to the question that this verdict is excessive, it is urged upon our attention that not much injury was done to the person of the plaintiff, that if the elements which constitute compensatory damages were alone regarded, the sum given by the jury in its verdict is outrageously excessive; and that the element of punitive damages must necessarily have entered into this verdict. This contention does not appeal strongly to this court. While this plaintiff may have been guilty of moral deliction before he entered the car of the company, yet the record does disclose that he conducted himself with moderation after the relation of passenger and carrier had obtained. The jury was not called on to weigh with golden scales and adjust with great exactness the injuries resulting from an unjustifiable and unprovoked assault and ejectment from the car in the manner in which this plaintiff was ejected by the servant of the company, the jury in their sound discretion were entitled to return such an amount as in their judgment seemed proper. And it does not seem to us that the verdict was rendered under the influence of passion and prejudice. The case was very ably tried and the trial judge was exceedingly careful in giving proper cautions and instructions to the jury, and his instructions to the jury were as favorable to the defendant company as it could claim it was entitled to have, Judgment affirmed.

Daugherty & Todd, for plaintiff in error.

O, W. McCleery and M. A. Daugherty, for defendant in error,

Lanfersiek v. City of Cincinnati et al. [Vol. VIII, N. S.

BENEFITS FROM STREET IMPROVEMENT.

[Circuit Court of Hamilton County.]

GEORGE W. LANFERSIEK V. CITY OF CINCINNATI ET AL.

Decided, June 20, 1904.

Street-Improvement of. Which Benefits the Public Rather Than the Abutting Owner-Building not Erected for Corner Lot PurposesIncreased Light and Air.

Increased light and air resulting from a street improvement can not be considered as a "benefit" arising from the improvement.

GIFFEN, P. J.; JELKE, J., and SWING, J., concur.

The plaintiff is the owner of a lot fronting on Jefferson avenue and abutting 150 feet on Nixon street, which was assessed for the improvement of the street by grading, setting curbs and crossings, flagging and paving gutters, macadamizing the roadway, and constructing the necessary culverts, drains and retaining walls. Five annual installments have been paid, and the plaintiff now seeks to enjoin the collection of the remaining five installments, on the ground that the property received no special benefits in excess of the amount paid.

The dwelling-house which is situated on this lot was built before Nixon street was opened, and was not designed for use and occupancy upon a corner lot. The approach to the premises from the side street is made difficult and inconvenient by reason of the steep grade. The chief benefit to the property consists in the improved appearance of the surroundings rather than any additional use appurtenant to the land. The real benefit from the improvement is derived by the public, and not the abutting owner.

But this

Much of the testimony that the premises had been increased in value by reason of the improvement was based on the theory that the added light and air was a substantial benefit. was assured without the improvement, and can not therefore be considered. We are of the opinion that the special benefits received do not exceed the installments paid, and that the collection of those remaining should be enjoined.

Charles E. Tenney, for the plaintiff.
City Solicitors, contra.

Deeds-Ambiguity in—Giving Rise to Uncertainty as to Dividing LineAgreed Line Becomes the Established Line, When-Not Contrary to the Statute of Frauds-Erroneous Lines Distinguished from Uncertain Lines.

In a suit in equity, where the parties on both sides are seeking to quiet their title to a strip of intervening land, and the court is confident from the evidence that the purpose of the original grantor was to give to his two sons-in-law equal portions of the disputed strip, and it was so understood by them, and a line midway of the strip was acquiesced in by them as the dividing line, and the occupation has not been of such a character as to give title by prescription, a decree will be granted making such line the established boundary between subsequent grantees and heirs, notwithstanding an ambiguity in the original deeds gives color to the claim of the plaintiff to a legal title in the whole strip.

PARKER, J.; HAYNES, J., and WILDMAN, J., concur.

The case of George Challen v. John V. Martin et al is in this court by way of appeal. I can not do better, perhaps, than by reading the pleadings.

The petition states that the plaintiff is the owner in fee simple of the northwest quarter of Section No. 19, town three north, of range No. 9 east, in Jackson township, Wood county, Ohio; that said northeast quarter contains one hundred and seventy-nine acres, and that each of the defendants as widow and heirs at law of Robert M. C. Martin, deceased, claims some estate and interest adverse to plaintiff in and to east nineteen acres of said northwest quarter; but plaintiff avers that each of said defendants had no estate or interest whatever in and to said quarter section, or in and to any part thereof. Wherefore, plaintiff prays that he may be adjudged the owner in fee simple of said premises, freed from all claims or estate or interest therein of said defendants and each of them, and that he may have all other relief to which, in equity, he may be entitled.

The defendants, for answer to the petition of the plaintiff, say, that John V. Martin, Fannie Helper, Charles E. Martin, Eliza E. Sargent, Isaac Martin, Annie C. Derr, Jennie Lease, and Samuel Martin are the only heirs at law of Robert M. C. Martin, deceased, and that the defendant, Barbara Martin, is his widow; that on the 27th day of October, 1862, Abraham Kagy, who was then the owner in fee simple of the north half of Section No. 19, township three north, range nine east, containing three hundred and thirty-eight acres of land, deeded to Daniel Spitler the northwest quarter of said section, which said deed set forth as containing one hundred and sixty-eight and 86-100 acres of land, to Robert M. C. Martin, the northeast quarter of said section, which said deed set forth as containing one hundred and sixty-nine and 45-100 acres, intending thereby to divide said half-section equally between said Daniel Spitler and Robert M. C. Martin; that said deeds to Daniel Spitler and to Robert M. C. Martin were recorded on October 27th, 1861, and were recorded in Volume "T," pages 404 and 405, of the records of Wood county, Ohio; that the said Daniel Spitler and Robert M. C. Martin, ascertaining that the north and south quarter-section line did not divide said north half of said quarter section in two equal parts, and that the northwest quarter of said section contained one hundred and seventyeight acres of land, and that the northeast quarter contained one hundred and sixty acres, entered into an agreement to have a line established dividing said half-section into two equal parts, and that the said Robert M. C. Martin should be the owner in fee simple of the land in said half-section lying east of said line, and that the said Daniel Spitler that lying west of said line; that thereafter, in the year 1879, in pursuance of said agreement, the said Daniel Spitler caused said line to be established and the corners of said two tracts of land were set 2.36 chains west of the west line of the northeast quarter of said section; that the survey establishing said line is recorded in the records of the surveyor of Wood county, Ohio, as survey number 776; that said Daniel Spitler was the grantor, through his heirs, to the plaintiff herein, of said northwest quarter of section number nineteen, township three north, range nine east; that since

the year 1879 they have had open, notorious and adverse possession of nine and 45-100 acres off the east side of the northwest quarter of said section east of the line as established as aforesaid; that since the date of the conveyance of the northeast quarter of said section to Robert M. C. Martin, the said Robert M. C. Martin and his heirs have paid the taxes on the said nine and 45-100 acres off the east side of the northwest quarter of said section, amounting with interest to the sum of $--; that said defendants are the owners of said strip of land off the east side of the northwest quarter of said section 2.36 chains wide, containing nine and 45-100 acres of land.

And the defendants allege that before the plaintiff parted with any valuable consideration for the said northwest quarter of said section, the plaintiff had knowledge and notice of the defendants' claim to said premises. The defendants deny each and every allegation in the petition contained, not expressly admitted herein. And for further answer to the petition the defendants say, that in the year 1903 the plaintiff rented of the defendants the said strip of land off the northwest quarter of said section, 2.36 chains wide, containing nine and 45-100 acres of land, and that the possession of said plaintiff of said premises is the possession of the defendants. Wherefore, the defendants pray that they may be adjudged to be the owners in fee simple of said strip of land off of the east side of the northwest quarter of Section No. 19, township three north, range nine east, 2.36 chains in width, containing nine and 45-100 acres of land, free from all claims or estate of the plaintiff, that the title of the defendants thereto may be quieted as against the plaintiff, and to all relief to which, in equity, they may be entitled.

For reply to the answer and cross-petition of the defendants the plaintiff represents and says to the court: That he admits that the parties named in said answer are the only heirs at law of Robert M. C. Martin, deceased: admits that on the 20th day of October, 1850, Abraham Kagy, by deeds duly executed, and who was then the owner in fee simple of the north half of Section No. 19, town three north, range nine east, deeded to Daniel Spitler the northwest quarter of said section, and to Robert M. C. Martin the northeast quarter of said section;