Deming v. Cleveland (City). question, the person complained of is entitled to a trial in a competent tribunal of that question before he can be deprived of his property. The Supreme Court of the United States in Mugler v. Kansas, 123 U. S., 623, 661 [8 S Ct. Rep. 273], said: "If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution." The statute under which this property right of the plaintiff in this stream is sought to be taken, makes no provision for compensation, no trial by jury or otherwise is provided for; hence it cannot be said that this is a taking by due process of law, and for this reason the act is a clear violation of Art. 1, Sec. 19 of the constitution. Whether any particular thing or act is not permitted by the law of the state, must always be a judicial question, and therefore the question, what is, and what is not a public nuisance, must be judicial; and it is not competent to delegate it to the local legislative or administrative boards. Yates v. Milwaukee, supra; Redford v. People, 14 Mich., 41; State v. Street Com., 36 N. J., 263; Everett v. Council Bluffs, 45 Iowa, 66; Hutton v. Camden, supra; St. Louis v. Schnuchelberg, 7 Mo. App., 536. The local declaration that a nuisance exists is, therefore, not conclusive, and the party concerned may contest the fact in the court Ex parte O'Leary, 3 So. Rep., 144 [65 Miss., 80; 7 A. S. Rep., 640]; Hennesy v. St. Paul, 37 Fed. Rep., 563; Arkadelphia v. Clark, 11 S. W. Rep., 957 [52 Ark., 23; 20 A. S. Rep. 154]; Janesville v. Carpenter, 46 N. W. Rep., 128 [77 Wis., 28; 8 L. R. A., 808; 20 A. S. Rep., 123]. There are some things which in their nature are nuisances, and which the law recognizes as such. There are others which may or may not be so, their character in this respect depending on circumstances. And in the latter, it is manifestly beyond the power of the municipality to declare in advance that those things are a nuisance; the question when the thing may or may not be a nuisance must be settled as one of fact and not of law. That a running stream or water course is not in its nature a nuisance per se, we think, is quite clear. It is not in the list of common law nuisances enumerated in the text books. Wood on Nuis. (2 Ed.), Sec. 23, et seq. It follows, as it would seem, from an unbroken line of authorities, that the act of the legislature conferring this extraordinary power on the city of Cleveland, whereby it assumes to divert this stream from the premises of the plaintiffs because the council of said city declared by resolution it to be a nuisance, is unconstitutional and void; and all the proceedings of the council under and by virtue of this legislative act, are necessarily null and void, and the defense based thereon must fail. Since the court takes this view of the law. we do not deem it necessary to decide upon the right of the city in a proper case and under a valid law, to assess property of abutting owners on a stream for benefits resulting to their property by reason of a legal diversion of a stream from their property, as a legal diversion under a valid law does not arise in this case. We, therefore, hold that the plaintiffs are entitled to the relief against the city, and the defendant Lander, as treasurer, as prayed for in their petition; and this is the decree of the court with costs. Tuscarawas Circuit Court. CONTRACTS-RECEIPTS. [Tuscarawas Circuit Court, November Term, 1899.] Adams, Douglass and Voorhees, JJ. CHARLES SEEMAN, EXR., ETC., V. OHIO COAL MINING CO. WRITING ACKNOWLEDGING Settlement not A MERE RECEIPT-PArol EviDENCE INADMISSIBLE TO VARY. An instrument in writing containing these terms: "Received of the Superior Mining Company thirty-five hundred dollars, being the amount in full for all royalties or amounts due, or to become due, trom said Mining Company under the lease or contract made between Henry Seeman and J. S. Seiberling, dated April 13, 1887," is an instrument acknowledging the receipt of money and also a contract to the effect that the parties have come to a settlement of all matters of account then existing between them, and have agreed upon the balance due or to become due from one to the other under said lease. Parol evidence tending to prove that certain matters of account, then existing under said lease, were not included in such settlement would contradict the writing in this respect, and is not admissible. Appeal. Richards & McCullough, for plaintiff. Neeley & Patrick, for defendant. VOORHEES, J. The case is in this court upon appeal. The plaintiff's action is for an accounting for royalties under a lease made by his testator, Henry Seeman, to the defendant company's assignor, one John S. Seiberling. Plaintiff asks that an account of the amount of clay mined and removed under the lease by the defendant company, and the amount due therefor may be ascertained. The defendant answers, setting up two defenses. First defense is a denial of liabilities of plaintiff under said lease. The second defense sets up a contract of lease made by Henry Seeman to J. S. Seiberling; that on August 1, 1888, Seiberling sold and assigned said lease to the Superior Mining Company; and on November 23, 1888, the said Superior Mining Company paid to the plaintiff and Mary Seeman the sum of thirty-five hundred dollars, thereby becoming the owner of all the coal and clay and royalties under said contract of lease. Afterwards the said Superior Mining Company, for a full consideration paid by defendant company, sold and conveyed all its rights and interest in said coal and clay and lease to the defendant company, and ever since said purchase defendant has been the owner of said coal and clay free from royalty to the plaintiff. A third defense is set up alleging, that on November 23, 1888, the said Mary Seeman and Charles Seeman, as executors of the will of said Henry Seeman, entered into an agreement with the said Superior Mining Company, in writing, whereby it was agreed that if the said Superior Mining Company should pay to the said executors, the sum of thirty-five hundred dollars in cash, for all royalties then due under said lease and to become due thereunder at once, that the said executors would accept the same as payment in full for all royalties under said contract then due and to become due, and they would further give and grant to said company the Seeman v. Ohio Coal Mining Co. exclusive right to use the lands lying between the railroad track and the line fence; that said company paid said sum of thirty-five hundred dollars in cash, or its equivalent, and said executors executed a release of all royalties under said contract and lease. The plaintiff files a reply, putting in issue the answer of the defendant company. The material question to be considered is the legal effect and true construction to be given to the instrument of writing, entered into with the executors of the will of Henry Seeman and the Superior Mining Company, which is in the words following: "Received of the Superior Mining Company thirty-five hundred dollars ($3,500 00), being the amount in full for all royalties or amounts due, or to become due, from said Mining Company under the lease or contract made between Henry Seeman and J. S. Seiberling, dated April 13, 1887. It is not claimed that this instrument was obtained either by fraud or by mutual mistake entitling the plaintiff to relief against its terms by reformation of the instrument. If the instrument will bear the construction contended for by the defendant company, namely, that it is a receipt and also a contract to the effect that the parties came to a settlement of all matters of account then existing between them, and agreed upon the balance due, or to become due, from one to the other under said lease, and when executed, and the thirty-five hundred dollars were paid to the executors, that it was intended to be and was in fact in full settlement and discharge of all royalties that were due, or to become due, under the contract of lease between said Seeman and Seiberling, then the plaintiffs cannot recover in this action, as it would be a settlement and payment for not only the royalties for the coal but also for royalties for the clay which were contemplated might be mined under the original lease or contract. This raises two questions: First-Is the writing merely a receipt, or is it more than a receipt embracing within its terms a contract of settlement. If it is more than a receipt, then it is such an instrument of writing that parol testimony would not be competent to contradict or vary its terms, without first laying the foundation that would authorize a court of equity to reform the instrument. Second-If on the other haud it is simply a receipt, then under the well settled rule of law, it could be explained by parol evidence; and if it could be so explained it would be competent by parol evidence to show that it did not express the real intention of the parties giving the receipt. But if it is a contract and a receipt combined then the rule of law is different. In Jackson v. Ely, Exr., 57 Ohio St., 450 [49 N. E. Rep., 792] it was held: "A written instrument in the follwoing terms: 'This is to certify that I have this day settled with John Ely, and he has paid me all he owed me, up to this date, and I have no claim or demand against him of any kind whatsoever. Mrs. Wm. Jackson,' is not a mere receipt, but contains an agreement to the effect that the parties have come to a settlement of all the accounts then existing between them, and agreed upon the balance due from one to the other; its terms clearly import that all matters of account, existing, between Tuscarawas Circuit Court. the parties at the time were included in the settlement; and as parol evidence which tends to prove that certain matters of account, then existing, were not included in such settlement, would contradict the writing in this respect, it is not admissible." Stone v. Vance, 6 Ohio, 246; Bird v. Hueston, 10 Ohio St., 418, 421, 430; Gass v. Ellison, 136 Mass., 503. We are of opinion and hold, that the instrument of writing in the case at bar is a contract as well as a receipt, and its terms as far as it is a contract cannot be contradicted or explained by parol evidence. If it had been intended for a receipt merely, why should it cover amounts to become due in the future? It embraces not only royalty then due but to become due, and the evident intention of the parties was, that it should include all royalties that were to be paid under the contract or lease for coal as well as royalty on clay. The purpose of the parol testimony offered by the plaintiff was to show that the royalty on the clay was not covered or intended to be covered by the receipt of November 23, 1888, but only royalties upon coal. In the absence of allegations of fraud or mutual mistake in the execution of the instrument, we think the evidence was incompent for this purpose, as it would vary and contradict the terms of the contract, and, without allegations in the pleadings that would justify its reformation, parol evidence is inadmissible. Under the contract and receipt as made the plaintiff is concluded by its terms, and he is not entitled to the relief prayed for in his petition. Decree for defendant dismissing the plaintiff's petition with costs. RAILROADS-CONSTITUTIONAL LAW. [Allen Circuit Court, November, Term, 1900.] CHICAGO & ERIE RAILROAD Co. v. PRISCILLA KEITH ET AL. 1. SECTIONS 3342 тo 3346, REV. STAT., are ConstitUTIONAL. Sections 3342 to 3346, inclusive, Rev. Stat., making it the legal duty of the constructors of railroads to provide drainage for all waters that accumulate along the roadbed by reason of its construction except where the roadbed is on or near swamp lands, the object being to prevent the creation of a public nuisance by accumulated standing and stagnant water in the first instance, and failing that to summarily abate it upon notice to the delinquent, at the expense of the party creating or maintaining it, are not inequitable or unconstitutional. Said sections do not deprive a citizen of his property without due process of law. 2 SELF DEFense-Right to Abate Nuisance. The public and individuals, on the doctrine of self defense, have a right to abate a physical, tangible nuisance summarily and without the intervention of judicial proceedings, but the act must be confined to the doing of what is necessary to accomplish the abatement. 3. RIGHT EXisted at ComMON LAW. The right of summary abatement of nuisances without judicial process of pleadings existed at the common law, and was not taken away by Art. 1, Sec. 19, of the constitution, that the owner of property shall not be deprived of it without due process at law. HEARD ON ERROR. Railroad Co. v. Keith. Ridenour & Halfhill, for plaintiff in error, cited. Injunction is the proper remedy in this case: Moody v. George, 1 O. S. C. D., 578 (37 B., 189); Secs. 4447 to 4510-66, Rev. Stat.; Secs. 4511 to 4566, Rev. Stat.; Secs. 3342 to 3346, Rev. Stat.; Railroad Co. v. Wagner, Treas., 43 Ohio St., 75 [1 N. E. Rep., 91]; Sec. 5848, Rev. Stat. Sections 3342 to 3346, Rev. Stat., are unconstitutional as in violation of Sec. 19, Art. 1, of the Ohio constitution: Reeves v. Treasurer, 8 Ohio St., 333; Crawford v. Delaware, 7 Ohio St., 459; Ray v. Norseworthy, 90 U. S. (23 Wall.), 128 (137); Sec. 7, Art. 10, of the constitution; Secs. 7 and 8 of Art. 4 of the constitution; Sec. 19 of the bill of rights; Sessions v. Crunkilton, Treas., 20 Ohio St., 349; Railroad Co. v. Wagner, 43 Ohio St., 75 [1 N. E. Rep., 91]; Sessions v. Crunkilton, 20 Ohio St., 349; French v. Edwards, 80 U. S. (13 Wall.), 506; Sec. 1, Art. 14, of the amendments to the U. S. constitution. In this proceeding the plaintiff in error was plaintiff in the lower court. Priscilla Keith and Theo. D. Robb, as judge of the probate court of Allen county, Ohio, wer defendants below and here. The action was to procure an order of injunction against the defendants, restraining the said probate judge from advertising and letting a contract to dig ditches and drains described in the petition and from certifying the costs and expenses of the proceeding to procure such ditches and drains so the same can be placed against the property of the plaintiff on the tax duplicate of Allen county, Ohio, for collection, until the validity of the act by virtue of which the proceeding was had can be judicially determined. A petition was filed by the railway company, setting forth the facts which it relied upon as constituting a legal basis entitling it to the relief of injunction, as prayed for. A general demurrer to the petition, that it does not state facts sufficient to constitute a cause of action, was sustained by the court, and the plaintiff not desiring to amend its petition or further plead, the petition was dismissed at plaintiff's costs, for which judgment was given. The plaintiff prosecutes error here, and the only question raised and presented is, do the facts stated in the petition constitute a cause of action entitling plaintiff to the relief prayed for? The material facts stated in the petition are in substance; that the plaintiff is a railroad corporation, organized under the laws of Indiana; that on May 9, 1899, there was served on the plaintiff's agent. in the city of Lima, Ohio, a notice, signed by the probate judge of Allen county, Ohio, and bearing the seal of the probate court of said county, and purporting to be a copy of an order of said probate court made in a matter pending therein, directing the said railway company to construct a drain or drains of sufficient capacity to conduct to a proper outlet the water that accumulated along the side of plaintiff's roadbed, by reason of the construction and operation of said railway, at certain points designated and contiguous to lands owned by the defendant, Priscilla Keith. The notice further declares that unless the railway company comply with the said 14 O. C. D. Vol. 12 |