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Lucas Circuit Court.

make out their account, yet, not having read it, I am not positive as to what it contains."

"Q. Referring, now, to Exhibit No. 1, I call your attention to. the words, 'Subject to the terms and conditions of the R. R. Co.'s bill of lading,' and ask you if you know why or how those words happened to be inserted in that shipping receipt? A. I believe the railroad companies required that clause before they would accept it in place of their regularly printed sheet.

"Q. State, if you know, whether the railroad company will receive goods from you without that provision in the receipt, or without giving you a regular bill of lading? A. I don't know that we ever offered them goods, except in connection with their regular bill of lading or this substitute. This substitute was prepared after ascertaining what would be acceptable to the railroad company.

"Q. This shipping receipt is used, then, instead of the regular bill of lading, as I understand you? A. Yes, sir.

"Q. State, if you know, whether the railroad company requires either the regular bill of lading, or a shipping receipt similar to this? A. They do.

"Q. Before they will ship goods? A. They do.

"Q. You knew in 1899, and for some time before that, that the contracts made by railroad companies in the shipment of goods contained certain conditions, did you not? A. I knew that they contained conditions. I was not altogether familiar with all the conditions that they did contain.

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"Q. You knew, however, that the railroad company would not accept this shipment for transportation except subject to the conditions. contained in its bill of lading? A. Yes, sir.

"Q. Otherwise, as I understand, the company would have issued to you its regular bill of lading? A. Yes, sir."

So that it appears, uncontradicted, in the testimony, from the evidence of the officers of the Ball Brothers Glass Manufacturing Company, that they knew that the railway company issued bills of lading; that they had bills of lading; that they might have bills of lading if they desired them, or, if they preferred this way of shipping, they could send their shipping receipts to the railway company's office, and if they contained this provision they would be acceptable to the railway company, and this arrangement was adopted as a matter of convenience to the shipper as well as to the railway company, to avoid the necessity of procuring from the railway company a regular bill of lading before the goods were accepted.

There is no evidence in the record that there was any fraud about this on the part of the railway company or its officers; that there was any attempt to conceal from the shipper the conditions of the regular bill of lading which the evidence shows had been in use for about seven years at this time. And this provision limiting the railway company's liability against loss by fire, unless occasioned by its own negligence, is an ordinary condition in a bill of lading, and is not such a condition as would be against public policy or would be held, in our judgment, to be void for any reason, but such condition has been sustained by the courts. We hold that this condition in this 1 of lading, if it was binding upon Berdan & Co., was a valid condition so far as it limited the liability of the railway company to fire not occasioned by its own negligence.

Railroad Co. v. Berdan & Co.

The evidence in the case shows that the shipper knew that there were conditions in the regular bill of lading of the railway company; the Ball Brothers Company knew that they were not shipping these goods upon a common law contract, that there were some conditions in the bill of lading, for they are referred to in the shipping receipt which they used. The evidence shows that they might have seen the bill of lading if they had seen fit; that they might have had a regular bill of lading issued to them if they had desired, but they preferred this way and they signed and delivered to the railway company this written receipt, and the company accepted the goods for shipment upon these conditions, and upon that written proposition the goods were taken by the railway company for transportation to Toledo.

Now, in our judgment, whether the Ball Brothers Company, through their officers, had actual knowledge of this condition contained in the bill of lading or not, under these facts and circumstances, undisputed in the record, they are bound and were bound by this condition named in the bill of lading. Having made this written request to the railway company to ship their goods, knowing that they would not be accepted unless this provision was in the paper, knowing that this was in lieu of a regular bill of lading, knowing that they might examine the regular bill of lading if they saw fit, knowing of this requirement of the railway company, and that the goods were not being taken unconditionally by them, they are estopped from denying that they had knowledge of this condition so contained in the bill of lading. The bill of lading thus became a part of the contract, as a matter of law, between the railway company and the shipper. It does not seem to us that these facts can be reconciled, with fair dealing and justice, in any other way. It was a plain, simple, ordinary business transaction. There was no concealment or fraud or misleading about it, so far as we are able to discover. It it was applied to any other question except that of the liability of a common carrier, it would seem that there would be no question, but that if such a proposition were made and accepted the parties would be bound by it.

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But common carriers may limit their liability, and in this case they undertook to do it, and adopted this means in lieu of a regular bill of lading. There is an Iowa case which seems to us directly in point and lays down the law as we understand it. The case is that of Wilde v. Transportation Co., 47 Ia. 272. The syllabus is:

Where a common carrier upon the delivery of merchandise for transportation, issued to the consignor a shipping receipt which stated that the bill of lading would be issued upon application at a place designated therein, and that the merchandise would be transported subject to the conditions expressed in the bill of lading, held, that the bill of lading and not the shipping receipt embodied the contract of the parties, and that the consignee would be bound by the conditions expressed in such bill of lading.

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The court say, in the opinion, on page 275:

"The consignors were notified that the contract was not the one which the law would imply from the simple delivery and receipt of the merchandise, but that it was to be such an one as should afterwards be embodied in a printed and written bill of lading. The consignors might have procured the bill of lading before the goods were shipped, or might have directed that the goods be not moved until the bill of lading had been procured. Then, if the terms contained in the bill of lading were

Lucas Circuit Court.

unsatisfactory or were not assented to they might refuse to make the shipment. But having permitted the goods to go forward under an agreement that the terms of shipment should be contained in a bill of lading, they, and the consignees whose agents for this purpose they are, must be bound by whatever terms are in good faith inserted in the bill of lading. There is here no evidence of bad faith. The bill of lading is proved to be in the form that defendants had for some time been in the habit of employing."

And they hold that the shipper there was bound by the conditions named in the bill of lading, and we think that the reasoning of that court is sound and that under the facts in this case the bill of lading became a part of the contract between these parties whether the shippers had notice and knowledge of these conditions in it or not.

The jury found that there was no negligence on the part of the railway company; that the goods were burned and that the railway company could not by the exercise of the highest degree of care have prevented their destruction. So that under this contract which we find existed between the railway company and the shipper, there being a finding by the jury that there was no negligence, the defendant was not liable for the loss of the goods, the bill of lading containing the condi tion that they would not be liable for fire, and the jury finding that they were not burned through their negligence.

In our judgment, therefore, the defendant below was entitled to have judgment in its favor notwithstanding the general verdict, upon these special findings of the jury; and, being of that opinion, the judgment of the court of common pleas will be reversed and set aside and judgment entered in favor of the plaintiff in error, defendant below, upon the special verdict of the jury, notwithstanding the general verdict.

RIPARIAN RIGHTS-CONTRACTS.

[Trumbull Circuit Court, November Term, 1900.]
Caldwell, Hale and Marvin, JJ.

A. G. MINER V. THOMAS FURNACE Co.

1. EASEMENT MAY BE SURRENDERED FOR A CONSIDERATION.

An easement and servitude appurtenant to dominant estate may be relinquished in whole or in part, or abandoned, and a contract for its surrender may be made for a consideration which the courts will enforce.

2. RULE Applied BetwEEN RIPARIAN PROPRIETORS.

The owner of a grist mill situated upon a mill race and having the right, under an order of partition, as first user to a specific use of the water, as against a lower riparian owner, cannot sell the water as such, but has a right to restrict his use and relinquish his right in favor of such ri arian owner; and a contract therefor is supported by full and ample consideration.

3. LOWER PROPRIETOR HAS NO RIGHT TO WATER CONFINED.

The owner of a grist mill, having been granted the first right to use all the water in a certain dam to furnish power for the operation of the grist mill as such, who for more than twenty-one years has maintained the dam and exercised the exclusive water privilege thereof, has the right to confine the water in the pond for the use of the grist mill, but is under no obligations to confine the water therein for a lower riparian owner. Therefore the latter has no rights to the water contained therein, and the laying of a pipe through the mill race into the pond and pumping water therefrom without consent of of the mill owner, would be a violation of legal rights.

Miner v. Furnace Co.

HEARD ON ERROR.

M. J. Sloan and Chas. Filius, for plaintiff, cited:
June v. Fremont, 54 Ohio St. 663; [46 N. E. Rep. 1160].
Washington Hyde and E. E. Roberts, for plaintiff, cited:
Findings of fact: Oliver v. Moore, 23 Ohio St. 473.
Appurtenance: Meek v. Breckenridge, 29 Ohio St. 642.

Riparian rights: 2 Blackst. 18; Cooper v. Williams, 4 Ohio, 253, 286; Cooper v. Williams, 5 Ohio, 391 [2ł Am. Dec. 299]; Morgan v. Mason, 20 Ohio, 401 [55 Am. Dec. 464]; 15 Am. & Eng. Enc. Law (1 ed.) 484; Lamb v. Rickets, 11 Ohio, 311; Day v. Railway Co., 44 Ohio St. 406 [7 N. E. Rep. 528]; June v. Purcell, 36 Ohio St. 396.

Adverse possession: Buckingham v. Smith, 10 Ohio, 288.

The record shows that the plaintiff in error, Jennie V. L. Miner, is the owner of the grist mill and water power and privilege appurtenant thereto in the city of Niles and located upon Mosketo creek. Mosketo creek comes down into the city of Niles trom the north, passes across Robins avenue under the Erie railroad, past the land of the Thomas Furnace Company (owned by Margaret Thomas) thence, under the Pittsburg & Western railroad, on down past the site of the grist mill, thence a short distance further into the Mahoning river. The Thomas Furnace Company property, located upon the map, is bounded north by the Erie railroad, west by Mosketo creek and south by the Pittsburg & Western railroad, and is said, by defendant's witnesses in this case, to have a frontage on Mosketo creek of from five to six hundred feet, and contains four or five acres of land. It does not reach down as far as the grist mill within eight or nine hundred feet. Just north of the Erie railroad and of Robins avenue is a dam built across Mosketo creek, forming a mill pond above it. From the west end of this dam a mill race leads off to the south across Robins avenue and under the Erie railroad, and thence in a southwesterly direction to the grist mill. The water collected by this dam is conducted through this race to the mill where there are two turbine water wheels and is used when there is sufficient water in the creek, in operating the mill.

Said plaintiff, Jennie V. L. Miner, at the time of the making of the contract upon which suit was brought, was the owner in fee simple of the grist mill property and plant and of the right to the use, through the race, of the water privilege and power afforded by the dam and creek. Said plaintiff was at that time the absolute owner of the right to maintain the race and dam and mill pond, to the end that she might enjoy said water privilege and power. The nature and extent of the privileges annexed and appurtenant to the grist mill were originally determined in the proceedings in partition of the estate of Warren Heaton, and the said plaintiff succeeded to the ownership thereof by various and successive conveyances.

By the proceedings in partition it appears that there was set off to Julia H. Woods, a daughter of Warren Heaton, the grist mill, and to Eliza M. Heaton the forge and furnace property so called, and to James M. Heaton the saw mill lot. See map "A to A.”

And in connection with the grist mill set off to Julia H. Woods there was set off to her as a part of it, and appurtenant to it, the first right to use all the water of the damn through the race to drive the grist mill with all the machinery attached, for milling purposes, and in case

Trumbull Circuit Court.

the proprietors of the grist mill property should abandon the use of the water to propel the grist mill, then they should be entitled to the first right to use as much water as would be required to propel three run of ordinary millstone, to be computed in the usual and customary way of determining the power, together with the right to keep up the race-way and the dam. There can be no doubt but that the commissioners, at the time they set this property off to Julia H. Woods, had in mind the three run of stone then in the mill. It clearly appears that it took from seventy-five to one hundred horse power to run three run of stones, such as are referred to in the partition proceedings and that no more than that horse power was required, indeed not so much, to run the two turbine wheels now in use at the grist mill.

The water power made appurtenant to the furnace lot and saw mill lot was, expressly in the proceedings of partition, made subject to the prior right of the grist mill, and it fully appears that the water rights set off to said old furnace lot and the said saw mill lot were each abandoned more than thirty years ago and the furnace and saw mill lots have for more than thirty years been abandoned as manufacturing sites, yet when they were used it appears, in the evidence of John Ohl, that the proprietor of those respective properties were obliged to quit the use of water when there was not more than enough to supply the grist mill.

It also appears, and was so found by the court, that when the pond was full, that is, the water was just running over the top of the dam, there was then just power sufficient to run the grist mill and as, with use, the water in the mill pond diminished and fell below the top of the dam and lower, it became less and less sufficient to the needs of the mill and the power it afforded had to be reinforced by steam power until the water in the pond fell a foot below the top of the dam, when it ceased to furnish any power whatever at the mill. And it appears that often during the long summer seasons especially dry spells, there were periods of greater or less length when the power furnished by the water was insufficient to run the mill and at times diminished below the point of any usefulness whatever, and that when the water ceased to flow over the dam into the creek and so on past the Thomas Furnace Company landsthe creek between the dam and the grist mill below was quite without water, all the water at such times flowing through the race and back into the creek below the grist mill and far below the Thomas Furnace Company property.

It also appears that for many years prior to the making of the contract upon which this suit was brought, the proprietor of the Thomas furnace had found it necessary to procure water from the pond or the race-way, which was always done by arranging with the grist mill proprietor for a consideration, for the water to run from the race into the creek just below the dam and so pass the Thomas furnace. This was done by putting a sluice in the bank of the race.

In this condition of things, the Thomas Furnace Company, desiring to use more water than it could otherwise get, on September 20, 1897, entered into the contract upon which this suit was based. The contract was drawn by John R. Thomas himself, was put in the form of a letter prepared by him, signed by the plaintiffs and then accepted by the Thomas Furnace Company. And immediately upon the execution of the contract, the Thomas Furnace Company laid the pipe specified in the contract. The pipe was laid from the Mosketo creek, commencing at the pumping station of the furnace company, across the lands of Marga

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