Opinion of the Court. down to the elevator to investigate the risk? The nature and extent of Ensel's interest was determined by that contract, and "his interest" was, by the very language of the "rider," a very material element of the risk. If Ensel's in terest was the perfect and complete ownership of the structure which he was to demolish, then he had all the right of recovery from the Wabash company or anybody who caused its destruction by negligent fire or otherwise. If the company's agents did not examine this phase of the risk, can the company complain now? Counsel for the company allow no presumption that the company knew what it might have known; and justly, we think, because it is a question of construction and inference, whether he affirmed the fact by silence, or whether under all the circumstances the company was under duty to inquire. But counsel also concede no ground for inference. We think there was ground for inference, and that the trial judge properly decided the question. If the circuit court ruled the question otherwise, it must have done so because there was no evidence that the company assumed the risk upon its own knowledge; ignoring the clear, uncontroverted testimony that Bowen "made a thorough inspection of the risk in detail." On this question of knowledge, we are cited to the case of Nelson v. Continental Insurance Co., 182 Fed. Rep., 783. That company had issued to Nelson a policy against fire to his "five-story building, situate Nos. 138-142 E-S of North Market St." The policy had a "rider," to-wit: "this. insurance also covers the assured's one-half * Opinion of the Court. interest in the south wall of the four-story * building, situate Nos. 144-146 North Market St." The court said: "The rider indicates that the insurer had knowledge that the south wall of the Pilcher building was a party-wall, outside of and beyond the limits of the premises generally described in the policy, which were the assured's 'five-story * ** building, situate Nos. 138-142 E-S of North Market street * * *' while the rider extends the protection of the insurance to the assured's interest in the south wall of the building described as 'situate Nos. 144-146 North Market St. * Under these circumstances defendant must be presumed to have had knowledge of plaintiff's interest in the subject of the insurance, and to have issued its policy with such knowledge." Counsel for defendant here criticise the case, but reluctantly admit that the federal court rightly raised the presumption under the circumstances of that case. Counsel can hardly consistently contend that the trial court went wrong in drawing an inference of the same sort under the circumstances of the case at bar. Furthermore, there may be a question whether, in the light of all the circumstances, the stipulation as to the subrogation was in fact violated. It runs in the future. "If this company shall claim that the fire was caused by the act or neglect of any person or corporation this company shall be subrogated to all right of recovery by the insured ** and such right shall be assigned to this company." That the Wabash company caused the fire, does not appear. If that fact shall * Opinion of the Court. subsequently appear, the defendant may assert it in an action for breach of this covenant. "Sufficient unto the day is the evil thereof." This stipulation is used in this action to work a forfeiture. The law abhors a forfeiture, and will countenance it only strictissimi juris. Besides, the stipulation, being written in the policy by the insurer for the protection of the insurer, is to be interpreted most strongly against the insurer. Here the insurer seeks to construe it as implying, nay, as importing by presumption of law, a representation that the insured had a right of recovery against the Wabash company. The representation can hardly be imported into the document by strict construction. The most the defendant could claim is a mere inference that the plaintiff represented that he had the right to sue the Wabash company if that company should negligently or otherwise set fire to the property, and that he so represented falsely and purposely. That was an inference for the trial judge, if he found the facts would justify it. The judge did not so find. We think he was right; he properly construed the contract. Third. The property was incumbered by an undischarged mortgage upon the Wabash railroad. What we have said supra about notice of and inquiry into the extent of his interest, applies to this defense. Insurance is often written, "upon the assured's interest as his interest may appear." The "rider" is not materially different in effect. It was notice that his ownership of the building was not perfect, absolute ownership. Opinion of the Court. The mortgage does not appear in the record, but we glean that there was the usual proviso that the railroad company might dispose of equipment and material, replacing the same with new. For aught that appears this is what the railroad company was doing. If so, the lien upon this lumber was discharged. This defense is not valid. Fourth. The elevator was situate on ground not owned by the plaintiff in fee. The property insured was not the building, but the lumber contemplated as personalty, though part of a structure "in process of demolition." The property was upon the land where it was described to be. The fact that the fee simple title to the land was not in the owner of the personalty insured, is not material. The error of counsel throughout this case, lies in a confusion of terms. They mistake inference for presumption-a slip too often unconsciously made by judges as well as lawyers. A presumption is a rule which the law makes upon a given state of facts; an inference is a conclusion which, by means of data founded upon common experience, natural reason draws from facts which are proven. A presumption of law may be prima facie only— that is, a hypothesis which will admit of proof to the contrary; or it may be absolute-that is, a postulate which, for reasons of legal policy, the law will not permit to be contradicted. The latter may be a mere fiction, assumed to be true, although the known fact may be the very oppo site. Syllabus. It is the latter sort which we are urged to adopt in this case. There may be cases, having somewhat similar features, where judgment upon presumptions may be legitimate. This is not one of them. Judgment of the circuit court reversed, and that of the common pleas affirmed. SHAUCK, C. J., JOHNSON, DONAHUE, WANAMAKER and NEWMAN, JJ., concur. THE CITY OF CINCINNATI ET AL. V. THE LOUISVILLE & NASHVILLE RAILROAD COMPANY. Appropriation of public property for easement-Section 6420, Revised Statutes, applies to proceedings under Section 3283a, Revised Statutes (99 O. L., 590)—Board of directors of railroad -Has primary discretion to determine necessity therefor—-But court has final authority to determine necessity for appropriation. 1. Section 6420, Revised Statutes, is a part of title II, chapter 8, part 3, Revised Statutes, applicable to proceedings brought under favor of Section 3283a to appropriate an easement over public ground lying within the limits of any municipality and dedicated to the public for use as a public ground, common, landing, wharf, or any other public purpose, excepting streets, avenues, alleys or public roads. 2. Section 6420, Revised Statutes, authorizes the court in which such proceeding is properly brought to hear and determine the questions of the existence of the corporation, its right to make the appropriation, its inability to agree with the owner and the necessity for the appropriation, before proceeding to impanel a jury to assess compensation. 3. The board of directors of any domestic or foreign corporation owning or operating a railroad wholly or partly within the state of Ohio has primary discretion to determine the necessity |