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Laugabough v. Anderson.

as he chooses upon his premises, but he cannot erect a nuisance to the annoyance of the adjoining proprietor, even for the purpose of lawful trade. 9 Coke, 58. He may excavate a canal, but he can not cast the dirt or stones upon the land of his neighbor, either by human agency or the force of gunpowder. If he can not construct the work without the adoption of such means, he must abandon that mode of using his property or be held responsible for all damages resulting therefrom. He will not be permitted to accomplish a legal object in an unlawful manner.' And in Tremain v. The Cohoes Co., Ib., 163, it was held, that, in such case, evidence to show that the work was done in the most careful manner is inadmissible where there is no claim made for exemplary damages."

This case, it seems to us, is analogous to the case under consideration, and the principles there set forth, of themselves, would be decisive of the proposition involved.

In Defiance Water Co. v. Olinger, 54 Ohio St., 532 [44 N. E. Rep. 238; 32 L. R. A., 736], it is held:

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One who collects on his own premises a substance liable to escape, and, if it should escape, likely to cause mischief, must, at least, use reasonable care to restrain it. If for want of such care it escapes and injures persons or property rightfully on adjoining premises, he is answerable for the damages sustained on account thereof."

In this case Bradbury, J., endorses directly the principle laid down in Fletcher v. Rylands, 1 Exch. Law Rep., 265, and more than intimates that the party would be liable, independent of the question of negligence; but it being a demurrer to the petition and the petition having averred negligence, it was not necessary to pass upon the question as to whether a party would be responsible whether there was negligence

or not.

In Bradford Glycerine Co. v. Woolen Mfg. Co., 60 Ohio St., 560 [54 N. E. Rep., 528; 71 Am. St. Rep., 740], it is held:

"Nitroglycerine is a substance usually recognized as highly explosive and dangerous, the storage of which at any place is a constant menace to the property in that vicinity. And one who stores it on his own premises is liable for injuries caused to surrounding property by its exploding, although he neither violates any provision of the law regulating its storage, nor is chargeable with negligence contributing to the explosion.

"2. A right of action will exist in favor of all property within the circle of danger, and the fact that the property injured was not on premises adjacent to those on which the explosive substance was stored, will not defeat a recovery."

While crude oil differs from nitroglycerine to a certain extent, it is of a like dangerous character. It is not so explosive, but it is highly inflammable and when large quantities of it take fire, it is equally destructive to property in its vicinity.

In Bradford Glycerine Co. v. Woolen Mfg. Co., supra, Fletcher v. Rylands, 1 Exch. L. R., 265, is approved. Bradbury, C. J., makes the following quotations from that case, as furnishing the correct principle applicable to cases of this character:

"'We think that the true rule of law is, that the person who, for his own purposes, brings on his lands and collects and keeps there anything likely to do mischief, if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the

Harrison Circuit Court.

natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default; or perhaps that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as above stated, seems, on principle, just. The person whose grass or corn is eaten down by the escaping cattle of his neighbor, or whose mine is flooded by the water from his neighbor's reservoir, or whose cellar is invaded by the filth of his neighbor's privy, or whose habitation is made unhealthy by the fumes and noisome vapors of his neigbor's alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbor, who has brought something on his own property, which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if he gets on his neighbor's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there no mischief could have accrued, and it seems but just that he should, at his peril, keep it there so that no mischief may accrue, or answer for the natural and anticipated consequences. And upon authority, this we think is established to be the law whether the things so brought be beasts, or water, or filth, or stenches.'

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This language was approved in the house of lords when the cause came up for consideration there, Lord Cranworth saying: 'My Lords, I concur with my noble and learned friend in thinking that the rule of law was correctly stated by Mr. Justice Blackburn in delivering the opinion of the exchequer chamber. It a person brings, or accumulates, on his land anything which, if it should escape, may cause damage to his neighbor, he does so at his peril. If it does escape, and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage.'

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One other question is made: Counsel for Mary Scott claim that whatever may be the liability of the lessees, she is not responsible. As she leased the premises for the express purpose of drilling for and storing oil and was the owner of one-eighth of the oil, it necessarily follows that she occupies the same relation to the injury as the lessees, and is equally liable.

It seems to us, therefore, to be clearly settled in this state that one who brings or stores upon his own premises in large quantities, a substance like crude oil, which is highly inflammable and dangerous and a menace to his neighbor's property, must keep the same upon his own premises at his peril, independent of all question of negligence.

We therefore find that there was no error in the charge of the court and the judgment will be affirmed.

Vanimmons v. State.

CONCEALING STOLEN PROPERTY.

[Williams Circuit Court, 1901.]

Haynes, Parker and Hull, JJ.

ELI VANIMMONS V. STATE OF OHIO.

1. CONCEALMEnt of Stolen Property-MERE ATTEMPT.

Evidence that a person charged with receiving and concealing stolen goods made an unsuccessful attempt, by an offer of money, to dissuade an officer in search of certain stolen property from searching the premises where the property was concealed, may be competent as tending to show that the accused was in fact concealing the property, but is not sufficient in and of itself to constitute the offense.

2. SAME ATTEMPT OF CONCEALMENT BY MATERIALS.

If a person knowing the place of deposit of stolen goods should prepare himself with materials to cover the same so that they might not be discovered, and should set out for the place of deposit with such materials and with a purpose of thereby covering and concealing such stolen property, but the stolen property should be discovered and recovered before such person had reached the place of deposit, the fact that he had done something designed and intended to conceal the goods, would not be sufficient to constitute an offense under the law.

8. SAME

ATTEMPT BY WORDS.

An attempt to cover up by the use of words instead of materials cannot be more potent in accomplishing an infraction of the law. It is not necessary that the offender should be successful in any degree or for any period in concealing the property, but he must in some measure succeed in accomplishing the act that he designed to effect the concealment.

4 RULES APPLIED-ERRONEOUS CHARGE.

Under foregoing rules a charge that "words are deeds," and that if accused "had knowledge of that fact (the theft) and having that knowledge, that he did or said anything to the officer holding the warrant, which was calculated and intended by him to prevent the search for his property" he is guilty, is erroneous."

Hill, prosecuting attorney and John M. Killetts, for State.
M. M. Boothman, for the prisoner.

The plaintiff in error was convicted under an indictment that charged that he did receive and conceal certain stolen property.

The evidence disclosed that the property was stolen by others, among whom was his brother, and deposited in a house owned and occupied by their parents, where the brothers had their homes. That the sheriff went to this house in search of the thieves and these goods and found the brothers and others there. That plaintiff in error took the sheriff aside and offered him fifty dollars if he would not search the premises for the stolen property, which offer the sheriff promptly rejected, whereupon plaintiff in error volunteered to and did conduct him to where part of the stolen property was deposited. Parts of the stolen goods were concealed and found in other places on the premises, but it does not appear that plaintiff in error knew that they were so concealed until they were found. There was no evidence tending to show that he had received the property. He was convicted on the ground that by his act in trying to prevent the search he had concealed the property that he knew was there and that he knew had been stolen.

Williams Circuit Court.

PER CURIAM:

The plaintiff in error made an unsuccessful attempt to dissuade an officer in search of the stolen property from searching certain premises where the stolen property was concealed. It does not appear that plaintiff in error had any authority, domination or control over the premises, or over the stolen goods there concealed, or that he had taken part in placing the goods upon the premises, or in concealing them there, unless his attempt to thus dissuade the officer amounted to a concealment of the goods.

Upon this state of facts and with respect to the attempt to thus dissuade the sheriff from searching, the court charged the jury, in part, as follows:

"Words are deeds, and if you find that, at the time this property was stolen, as charged in the indictment, that Eli Vanimmons had knowledge of that fact, and, having that knowledge, that he did or said anything to the officer holding the warrant, which was calculated and intended by him to prevent the search for this property, or any part of it, in any place or places where Eli Vanimmons knew it to be, and you find these facts, together with the other facts to which I have called your attention, as constituting this crime in the indictment, proved beyond a reasonable doubt, then, gentlemen of the jury, without reference to the purpose for which he did it, whether for his own benefit or to screen others, it will be your duty to find the defendant guilty of larceny, as he stands charged in the indictment."

""

We hold that in so charging the court erred. That it is not enough that the prisoner did an act "calculated and intended to conceal the property, but he must have done something which in some measure or degree actually effected that result. A mere attempt to conceal, not in any measure effective, is not sufficient to constitute the offense charged.

If one, knowing the place of deposit of stolen goods, should prepare himself with materials to cover the same so that they might not be discovered, and should set out for the place of deposit with such materials and with a purpose of thereby covering and concealing such stolen property, but the stolen property should be discovered and recovered before such person had reached the place of deposit, the fact that he had done something designed and intended to conceal the goods would not be suffi cient to constitute an offense under the law. It would be no more than a mere attempt.

An attempt to cover up by the use of words instead of materials cannot be more potent in accomplishing an infraction of the law. It is not necessary that the offender should be successful in any degree or for any period in concealing the property, but he must in some measure succeed in accomplishing the act that he designed to effect the concealment. The act here attempted was the turning aside of the officer, and the attempt was altogether futile and abortive, as if, in the case instanced in the use of material covering, such material had been destroyed before the place of deposit of the stolen goods had been reached. The effort of the prisoner to thus influence the sheriff while it was competent evidence tending to show that the prisoner was in fact concealing the property, was not enough in and of itself to constitute the offense.

We also hold that the verdict is not sustained by sufficient evidence and that, therefore, the court erred in overruling the motion of the prisoner for a new trial.

Colby v. Toledo.

MUNICIPAL CORPORATIONS-APPROPRATION.

[Lucas Circuit Court, June 18, 1901.]

Haynes, Parker and Hull, JJ.

GEORGE F. COLBY V. Toledo et al.

1. APPROPRIAtion-Probate JURISDICTION—Collateral ATTACK.

The probate court has jurisdiction, in an action by a railway company to appropriate property used for park purposes, to determine the right to appropriate, the necessity for it, and other jurisdictional issues, and its finding is conclusive upon the questions involved and cannot be collaterally attacked. The only remedy is by proceedings in error.

2. CITY MAY WAIVE RIGHT TO JURY.

A city, in an action against it to appropriate property already devoted to public use, after the preliminary questions as to jurisdiction and parties have been determined, may waive the right to have the question of assessment of damages submitted to a jury, and consent to have the same determined by the court; and may agree to receive a certain amount in compensation therefor, if the city authorities act in good faith and receive a fair compensation therefor.

8. PARK PROPERTY MAY BE APPROPRIATED by RAILWAY.

Property already appropriated to the uses and purposes of a public park may be subjected to the uses and purposes of a railway company.

APPEAL.

Kinney & Newton, for plaintiff, cited.

1. Where property has already been appropriated for public use, it cannot be taken for another public use which will defeat or supersede the former use, unless power to make such second appropriation is granted expressly or by necessary implication. In this case no such power is granted. A railroad corporation can acquire by appropriation only such rights as it might acquire by agreement with the city. The same property cannot possibly be used both for railroad purposes and for park, the two uses being absolutely inconsistent with each other, and the use of park property for railroad purposes necessarily prevents the use of the same property for park purposes. (The city has no power to enter into an agreement giving the railroad company the right to use park property, nor has the probate court any jurisdiction to grant to a railroad company the right to use park property for railroad purposes.) Railroad Co. v. Belle Center (Vil.), 48 Ohio St., 273 [27 N. E. Rep. 464]: Street Ry. Co. v. Street Ry. Co., 50 Ohio St. 603, 616 [36 N. È. Rep. 312]; State v. Railway Co., 37 Ohio St. 157; Zanesville v. Fannan, 53 Ohio St., 605 [42 N. E. Rep. 703]: Cleveland City Cable Ry. v. Barris, 1 O. S. C. D. 333; In re Boston & Albany R. R. Co., 53 N. Y. 574; In re New York & Brighton Beach R. R. Co., 20 Hun. 201; Railroad Co. v. Defiance, 52 Ohio St. 262 [40 N. E. Rep. 89]. 2. In order to give the probate court jurisdiction, it must appear that the railroad company and the city were unable to agree. In this case it appears conclusively, not only by resolution passed by the common council, but also by the terms of the judgment entered by the probate court, that the city and railroad company had agreed on all the terms, and that for this reason the probate court had no jurisdiction. Dayton and Western R. R. Co. v. Marshall, 11 Ohio St. 497.

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