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Allen Circuit Court.

directions to construct the drains within thirty days from the service of said notice, that the probate court would forthwith proceed and advertise a letting, and would let a contract for the draining of said accumulated waters from the side of said roadbed, to the lowest bidder in accordance with law; that prior to May 9, 1899, the plaintiff railway company. had no notice or summons served upon it requiring it to appear and answer to the complaint of the said Priscilla Keith made in said court, and no opportunity was afforded the plaintiff to make any detense or to make an issue as to whether said roadbed had been properly provided with drainage or was exempted from drainage as being swamp lands; that the thirty days named in the said notice, so served on May 9, 1899, have expired, and said Robb, as such probate judge, is threatening to proceed and advertise for the letting of a contract for the making of such drains, and will, if not restrained, advertise and let such contracts, and thereupon will charge the cost and expense of the same against the property of the plaintiff and the same will be placed upon the tax duplicate against the plaintiff railway company to be collected as other taxes; that the said proceeding in the probate court, in which said order was made and notice given, is under and by virtue of the provisions of Secs. 3342 to 3346, inclusive, Rev. Stat., which sections the plaintiff asserts are contrary to the provisions of Sec. 19, Art. 1, of the constitution of Ohio, for that thereby the plaintiff is deprived of his property without due process of law.

It is not stated as a fact that sufficient drainage to carry the water to an outlet and to prevent its accumulation so as to become a public nuisance, had been provided and was maintained by the railway company; or that the points where it is said drainage had not been provided was swamp lands, exempting the railroad company from constructing drainage by the express provisions of Sec. 3342, Rev. Stat.; but it is only stated in the petition as a ground for injunction, that the sections of the law, viz., Secs. 3342 to 3346, inclusive, are invalid because in conflict with Sec. 19, Art. 1, of the constitution, in that they deprive a citizen of his property without due process of law.

It is not the intention of the sections criticized to deprive a person of his property without due process of law, or at all, but the sole intention is to require the owner of property to so use and enjoy it as not to inconvenience and injure other owners, or the public. This was a requirement of the common law, and no new doctrine or principle is enforced by the enactment of these sections.

In the connection in which they appear, as a part of the chapter relating to railroads and their construction and operation, the sections have reference to the original construction and reasonable maintenance and operation of railroad roadbeds, making it the legal duty of the constructors 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 effort seems to have been in the first instance to prevent the creation of a public nuisance by accumulated standing and stagnant water, and failing that, to abate it, somewhat summarily, after ample notice to the delinquent, at the expense of the party creating it or maintaining it; and there is nothing improper or unconstitutional or inequitable in that. It simply enforces a legal duty resting on the railroad corporation at the expense of the corporation. There is warrant for this view, both in reason and upon authority. The public. and as well an individual, on the doctrine of self

Railroad Co. v. Keith.

defense, if no other, have a right to abate a physical, tangible nuisance summarily and without the intervention of judicial proceedings; but as in all cases of self defense, the act must be confined to the doing of what is necessary to accomplish the abatement. This is held in the case of Lawton v. Steele, 119 N. Y., 226 [23 N. E. Rep., 878; 7 L. R. A., 134; 16 Am. St., 813]. It was also held in that case: "The abatement of a nuisance, without first resorting to judicial proceedings, may be authorized by statute, because such right of abatement existed at the common law and was not taken away by the constitutional provision, that the owner of property shall not be deprived of it without due process of law." And also "the legislature may, where a public nuisance is physical and tangible, direct its summary abatement by executive officers, without the intervention of judicial proceedings, in cases analogous to those where that remedy existed at the common law." Andrews, J., who prepared the opinion, says on page 817 of 16 Am. St.:

The right of summary abatement of nuisances, without judicial. process or proceedings, was an established principle of the common law long before the adoption of our constitution, and it has never been supposed that this common law principle was abrogated by the provisions for the protection of life, liberty and property in our state constitution, although the exercise of the right might result in the destruction of property."

Judge Andrews quotes from numerous decisions in support of the view announced in the Lawton-Steele case, to-wit: License Cases, 46 U. S., (5 How.) 504; Rockwell v. Nearing, 35 N. Y., 302, 308, and numerous other authorities, and says:

These authorities sufficienty establish the proposition that the constitutional guaranty does not take away the common law right of abatement of nuisances by summary proceedings without judicial trial or process."

We think the same authorities amply cover the case made in the petition and necessitate the sustaining of the demurrer thereto. The sections, we think, are not in conflict with any provision of the state or federal constitution.

We perceive no error in the judgment of the lower court, and its judgment is affirmed, with costs, but without penalty.

PARTNERSHIP

EVIDENCE.

[Wood Circuit Court, March Term, 1901.]

Haynes, Parker and Hull, JJ.

GEORGE H. BAKER ET AL. v. John BRENNAN & Co.

1. THE QUESTION OF PARTNERSHIP One of MIXED LAW AND FACT.

The testimony, in another case, of one of the defendants, that they were partners, is not conclusive against him; neither is it a mere legal conclusion, but may go to the jury, with other facts, under proper instructions by the court on the question of partnership.

Wood Circuit Court.

2. WEIGHT OF SUCH EVIDENCE.

Such a statement is not a sufficient foundation for the conclusion that the party making it was a partner, nor will it sustain a verdict against him on that ground, where it appears that there was no express contract of partnership, that he acquired his interest in the common property separate from his associates, that he furnished and paid his part of the machinery and expenses, that he sold his share of the oil in the line separately, on his own account, and that prior to the sale to his associates of the property for the price of which suit is brought, he said and did nothing to induce the seller to believe that he was a partner.

8. PARTNERSHIP IN BUSINESS OF Producing Oil and Gas.

Owners in common of interests in oil lands, carrying on the business of producing oil, each one paying his share of the expense, and selling on his own account his share of the oil in the pipe line, do not become partners without an express agreement to that effect, and a stranger selling supplies for use on the common property to some of the part owners, cannot maintain an action against the others, as partners, for the price of the supplies, unless such other part owners have so conducted themselves in the business, or made such statements as to lead the stranger to believe, before making the sales, that they are partners.

4. EVIDENCE.

Statements or conduct of one or more of the associated parties, or part owners cannot be received as evidence against others, having no knowledge of such statements or conduct.

HEARD ON ERROR.

G. Harmon, for plaintiff in error, cited:

Lindley-Partnership, Sec. 6, pp. 51, 53; Taylor v: Fried, 161 Pa. St., 53 [28 Atl. Rep., 993]; Walker v. Tupper, 152 Pa. St., 1 [25 Atl. Rep., 172] Ash v. Guie, 97 Pa. St., 493 [39 Am. Rep., 818]; Brown v. Jaquette, 94 Pa. St., 113 [39 Am. Rep., 770]; Dunham v. Loverock, 156 Pa. St., 197 [38 Am. St., 838]; Butler Sav. Bk. v. Osborne, 159 Pa. St., 10 [28 Atl., Rep., 163]; Neill v. Shamburg, 158 Pa. St., 263 [27 Atl. Rep., 992]; Meridian Natl. Bank v. McConica, 4 C. D., 106 [8 R., 442]; Ervin v. Masterman, 8 C. D., 516 [16 R., 62].

James & Beverstock, for defendant in error.

PARKER, J.

This case is brought into this court to reverse the judgment of the Wood county common pleas court, against George H. Baker and Lewis C. Winchell upon two promissory notes for $224.87 each, signed "Cribbs & White, per W. W. White."

John Brennan & Co. plaintiff below, charges that all the defendants, James Cribbs, William W. White, George H. Baker and Lewis C. Winchell, were partners, doing business in the firm name of Cribbs & White, and also in the name of Baker, Cribbs & White, and that these notes were partnership obligations, in other words that the defendants were doing business under two firm names indiscriminately. Neither Cribbs nor White answered or demurred to plaintiff's petition.

Baker and Winchell defended, on the grounds that there was no such partnership; that the notes were not partnership obligations of any firm of which they were members, and that they were in no way obligated to pay the notes, or the debt of which they were evidence

The trial resulted in a verdict against all the defendants. Baker and Winchell filed a motion to vacate the verdict, which the common pleas court overruled, entered judgment on the verdict against all the parties, and Baker and Winchell prosecute error here against plaintiff below.

Baker v. Brennan & Co.

All the evidence received in the court below is embodied in a bill of exceptions, from which it appears that all of the defendants below were operating oil leases; that Cribbs and White were interested in certain leases with Baker and Winchell, and also in other leases, and that there was a partnership doing business in the name of Cribbs and White, owning a one-half interest in certain leases in which Baker owned a quarter and Winchell a quarter.

The notes in suit were given for two boilers, sold by Brennan & Co. through an agent, who testifies that he transacted the business with Mr. White.

It does not appear that Baker or Winchell participated in any way in the purchase of this property, or that they had any knowledge of the sale until after it was made and the property moved upon the premises. They say there was no partnership, and that the understanding, with this particular part of the equipment, as well as generally, was that each one should furnish his proportionate share, and when it cam:: to the matter of boilers, since the lease required four boilers, it was arranged that Baker should furnish one, Winchell one, and Cribbs & White two. They say that they each furnished the boiler he agreed to furnish, and Cribbs & White purchased these two boilers from the plaintiff and furnished them in pursuance of the aforesaid agreement.

The first question presented for our consideration, is as to the admissibility in evidence of certain testimony given by Baker upon the trial of another case against this alleged firm.

It appears that one Kidd sued the defendants as a partnership, and that, upon the trial of that case, Baker testified that there was a partnership existing during certain years, covering the time of the transaction sued upon here, and that he and Winchell were members of that partnership

Baker objected to the admission of this evidence on the ground that it was simply a statement of a legal conclusion and not an admission of a fact.

It was admitted over defendant's objection, and exception was taken. We are of the opinion that the admission of partnership relations involves the admission of facts, as well as law, and whether or not there is a partnership is a mixed question of law and fact.

The weight and value of this testimony should be submitted to the jury, and it is a matter of legitimate argument to the jury that one may suppose he is a partner, when as a matter of fact he is not a partner, that he is mistaken about the legal status, growing out of his relations with the other parties. We think this testimony was admissible, and that the common pleas court did not err in admitting it.

It is further contended that the verdict against Baker and Winchell is contrary to law, and against the weight of the evidence, as to the existence of a partnership, or a course of conduct such as would make them chargeable in this transaction as partners.

Upon the general subject of partnership in the operation of oil and gas leases, I will read a few extracts from decisions of the Supreme Court of Pennsylvania. The courts of that state have had a much wider experience in that business than the courts of Ohio, or perhaps of any other state.

In Taylor v. Fried, 161 Pa. St., 53 [28 Atl. Rep. 993], the syllabus reads: “A division of the products between tenants in common does not make them partners, although they may have contributed labor or

Wood Circuit Court.

money to raise it. No presumption of partnership arises from the mere fact of cotenancy, etc.

"Persons who join in the purchase of goods, not for the purpose of selling them again, but for the purpose of dividing the goods among themselves, are not partners, and are not liable to third parties as if they were."

Now the property referred to there, consisted of a boiler sold to one of the parties, and used upon a certain lease in which the other defendants were interested, and with respect to the facts the court says: "We think it is clear that W. P. Black and his vendees were tenants in common of the leasehold, and that the agreement under which he drilled the well did not create a partnership interest or a joint liability. It is quite evident that it was not the intention of the parties to become partners in the work to which their agreement was limited. It is probable that Black and his vendees believed, or at least entertained a hope, that, the work contracted for would demonstrate that the leasehold was good oil property, but the latter did not consent to be jointly bound to the former, his employees or material men, for all or any portion of the price of it, nor did their agreement include anything more than the drilling of the well. We have then a case in which one cotenant improves or tests the common property under an agreement with each of the other cotenants to pay his share of the expenses incurred in making the improvement or test. Thus the promise of each cotenant created a distinct and individual liability which was measured by his interest in the leasehold. This liability was not affected by the mere fact that oil was obtained and run in the pipe line to the credit of each cotenant in the proportion above stated. because (1) the operation of the well was not included in the agreement under which it was constructed, and (2) a division of the product between tenants in common does not make them partners, although they may have contributed labor or money to raise it."

It appears, I should say to make this matter more clear, that Black had agreed to drill this particular well at his own expense.

I next call attention to Walker v. Tupper, 152 Pa. St., 1 [25 Atl. Rep. 172], the syllabus of which reads as follows:

"Participation in profits is the most generally accepted test of the existence of a partnership, and though its presence is not conclusive in favor of, its absence may be regarded as conclusive against, partnership. "The owner of an oil lease assigned an undivided three-fourths interest in the lease to two other persons. The assignees agreed to drill two wells at their own expense without any liability upon the part of the assignors to defray any of the expense of drilling, but the assignors were to pay one-fourth of the operating expenses of the wells, and one-fourth of the bonus due the lessor.

"The assignees were to drill a third well, the assignors to pay oneeighth of the expenses thereof. It was further agreed that the assignors should be the owners of the full equal one-fourth of all the production (after deducting the royalty), machinery, rigs, casing, buildings and appliances of all descriptions, which may be placed upon said leasehold for use in operating the same. Held, that there was not a partnership relation between the assignors and the assignees, and that a contract for drilling a well, entered into by the assignees, would not bind the assignors.

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