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Cuyahoga Circuit Court.


County commissioners have authority under the act of April 16, 1900, 94 O. L., 364, Secs. 2822-1 and 4637-1, Rev. Stat., et seq., to improve state and county roads notwithstanding parts thereof may lie within a municipal corporation APPEAL.

Samuel Doerfler, for plaintiff, cited:

We claim that the act in question is unconstitutional for the following reasons:

First, that the county commissioners are compelled to assess back upon the abutting property owners at least one-fourth of the expense of the improvements which is contrary to the rule that assessments must be according to the benefits; and if the benefits should be less than one fourth of the entire expense, the county commissioners could not under this act make a valid assessment. Walsh v. Barron, 61 Ohio St., 15 [55 N. E. Rep., 164].

Second, that in two places only does the act make any reference to the compensation of abutting property owners. The first place is on page 365 of the ninety-fourth of the Ohio Laws, which provides that the county commissioners may assess the damages on account of the widening, etc., of the road upon the abutting property owners. The second reference to the compensation is upon page 366, and authorizes the county commissioners to collect the damages by assessing the same on the abutting property.

These are the only provisions in the act for the compensation of abutting property for any damages it may sustain. Both of these provisions are void by reason of their unconstitutionality. Cincinnati, L. & N. Ry. v. Cincinnati, 62 Ohio St., 465 [57 N. E. Rep., 229]. This act when stripped of these two provisions leaves it without any method of compensation to the property owners for damages sustained by them. For want of such provisions the entire act becomes void. Watson v. Trustees, 21 Ohio St., 667; Shaver v. Starrett, 4 Ohio St., 494; Lamb v. Lane, 4 Ohio St., 167.

If the court should hold the act to be constitutional, we still contend that it does not app!" within municipal corporations. Wabash RailJoad Co. v. Defiance, 52 Ohio St., 252-298 [40 N. E. Rep., 89].

P. H. Kaiser and F. L. Taft, for defendant.


This action was prosecuted in the court of common pleas to enjoin the board of county commissioners from improving a county road, under proceedings authorized by the statute of April 16, 1900, 94 O. L., 364 entitled "An act to supplement Secs. 2822 and 4637, Rev. Stat."


The trial court sustained the demurrer to the petition and gave judgment for the defendant, from which the plaintiff entered an appeal to this court. The grounds for which relief is sought, as stated in the petition, are: That the statute under the authority of which the county commissioners are proceeding, is unconstitutional and void for two

First. Because no mode is provided whereby the owner of property taken for the improvement can be compensated for such property.

Under this statute no private property is necessarily appropriated for most of the improvements authorized; and, as to such improvements as do not involve the appropriation of private property, this objection

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State v. Craig.

can not avail. As an authority to the commissioners to improve county and state roads where no private property is taken, there is no valid objection to the statute, whatever infirmity there may be in other respects. It does not appear in this case that any individual property rights are invaded, and, therefore, the contemplated action of the county commissioners is within the authority conferred by the statute and should be upheld.

Secondly. It is claimed that the statute is invalid by reason of the proviso, in Sec. 1 of the act which requires one-fourth of the costs and expenses of the improvement to be assessed upon the land abutting upon the improvement.

Section 1 of the act of 1900, 94 O. L., 364, adds four sections supplemental to Sec. 2822, Rev. Stat., known as Sec. 2822-1 to Sec. 2822-4, inclusive.

Section 2822, Rev. Stat., relates to the subject of taxation, and


"The county commissioners shall, at their March or June session, annually, determine on the amount to be raised for ordinary county purposes, for public buildings, for the support of the poor, and for interest and principal of the public debt, and for road and bridge purposes; and they shall set forth in the record of their proceedings specifically the amount to be raised for each of said purposes.'

Section 2822-1 authorizes a levy to be made to create a fund to be known as the state and county road improvement fund.

Section 2822-2 authorizes the county commissioners to use the funds thus created, for improving county and state roads. That section contains this proviso: "Provided, however, that no such improvement shall be made until the owners of at least a majority of the foot frontage of the land abutting on said road or part thereof shall petition therefor, and the county commissioners shall assess one-fourth of the cost and expense thereof on said abutting land."

Sections 2822-3 and 2822-4 relate to the proceedings to be had in making the improvement.

Section 2 of the act of 1900 adds eleven sections supplemental to Sec. 4637, Rev. Stat., known as Secs. 4637-1 to 4637-11, inclusive.

Section 4637-1 confers authority and power upon the county commissioners to cause to be graded, paved, curbed and improved, county or state roads.

Section 4637-2 reads: "The county commissioners may assess the damages on account of the widening, altering or establishing of said road or part thereof, also the costs and expenses of any or all of said improvements or such part of said damages, costs and expenses as they may deem equitable under the circumstances upon the taxable property abutting upon such road or part thereof, either according to the foot frontage or according to the benefits. The county commissioners are hereby created an assessing board for the purpose of assessing the damages, costs and expenses, as herein set forth, upon the abutting property as aforesaid."

Section 4637-3 reads: "The commissioners may order such part of the damages, cost and expense of such improvement as they may deem equitable, to be paid out of the county treasury, or out of any state and county road improvement fund."

Cuyahoga Circuit Court.

The provision to Sec. 2822-2, Rev. Stat, and the last two sections quoted are apparently not in harmony; at least there is a possible conflict in the two. Section 4637-1, Rev. Stat., and following were intended to confer upon the county commissioners ample power to improve county roads, determine the cost and expense of the same, and the proportion to be assessed upon the owners of property abutting upon the proposed improvement, and the proportion to be paid from the road improvement fund.

The means and mode of making the assessment of the equitable portion to be paid by the abutting land owner is therein provided for. The statute seems to be complete in this respect, and its provisions are without objection and clearly not obnoxious to any provision of the constitution. Just what purpose there was in adding the proviso to Sec. 2822-2 is not quite clear, but we hold that it in no way affects the power and authority given to the county commissioners under Sec. 4637-1, Rev. Stat., and following sections, and, as to improvements falling within those sections, must be disregarded.

We hold, therefore, that this statute shonld not be held unconstitutional because of the proviso appearing in Sec. 2822-2, Rev. Stat.

Again, it is claimed that even though the statute is a valid enactment, still it conferred no authority to improve that part of the county and state road lying within the municipal corporation, and the allegations of the petition are, that the road to be made lies wholly within the municipalities of East Cleveland and Cleveland Heights.

We are of the opinion that Lewis v. Laylin, 46 Ohio St., 663 [23 N. E. Rep., 288], settles this contention in favor of the defendant. It is there held in the third proposition of the syllabus:

"County commissioners have authority under the two-mile assessment pike law to improve a state, county or township road, although the improvement embraces that part of the highway which lies within the limits of a municipal corporation."


We find nothing in subsequent decisions, modifying or overruling the principle announced in this case. It is claimed, however, that the case of Lewis v. Laylin is overruled or at least modified by the case of Railroad Co. v. Defiance, 52 Ohio St., 263 [40 N. E. Rep., 89]; the first paragraph of the syllabus reads:


'Where a part of a county road is taken into a municipal corporation by the annexation of continguous territory, it is subject to the control and supervision of the municipal authorities, who may improve it by grading, or otherwise, at the expense of the corporation. Section 4906, Rev. Stat., does not apply to unimproved county roads."

No reference is made in this case (Railroad Co. v. Defiance) to Lewis v. Laylin, supra, which sustains the jurisdiction of the commissioners in improving a state or county road within the limits of a municipality. The latter case sustains the jurisdiction of the municipal authorities to improve a state or county road within a municipal corporation as one of the streets of the municipality. The result of the two cases is simply to sustain the jurisdiction of the county commissioners and the municipal authorities over such highway.

Plaintiff's petition is dismissed. Judgment for the defendant.

Weyer v. Sager.


[Allen Circuit Court, April Term, 1901.]
Norris and Mooney, JJ.


1. RULE IN PLEADING ESTOPPEL-PARTICULARITY AND CERTAINTY. Great particularity and precision should be observed in pleading an estoppel, leaving nothing to intendment. This rule is based upon the principle that an estoppel concludes a party from asserting the truth and all things essential to give the right to shut out the truth should affirmatively appear.

2. NOTICE To Covenantor to Defend.

Upon suit being brought upon a paramount claim against one who is entitled to the benefit of any of the covenants for title, he can, by giving proper notice of the action to the party bound by the covenants, and requiring him to defend it, relieve himself of the burden of being obliged afterwards, in an action on the covenants against the covenantor so notified, to prove the validity of the title of the adverse claimant. By such notice the covenantor becomes in effect a party to the action and is thereby estopped by the judg



To deprive the warrantor of the right to show title, the notice to the covenantor, requiring him to defend the title of the party sued upon a paramount claim, should be unequivocal, certain and explicit, and should demand that warrantor furnish testimony, defend the suit or aid in the defense; and should be given so as to afford the covenantor a full, fair and previous opportunity to meet this controversy. A petition in an action for breach of covenant which does not show what the substance of the notice given was, when it was given, whether the covenantor was requested to make defense, or opportunity to do so, the allegation thereof is immaterial and does not conclude the cove



In an action for breach of covenants against incumbrances and general warranty, a petition, which shows that at the date of the covenant there was an outstanding consummate dower interest not admeasured, shows that the covenant against incumbrances was broken as soon as made and states a cause of action for nominal damages, of which the common pleas has exclusive original jurisdiction, and against which demurrer does not properly lie; and it is not necessary for the plaintiff to show that he discharged the incumbrance by payment to the person entitled to dower.


A consummate dower interest before admeasurement may be aliened to a stranger to the title.

6. ORDER TO SELL LANDS TO PAY DOWER-EQUIVALENT TO EVICTION. When the value of dower is determined in a gross sum in an action for dower and assessed as a lien upon lands, and it is ordered that upon default of payment the lands be sold as upon execution, this is equivalent to an eviction and constitutes a breach of warranty.


In an action for dower the court of common pleas, under Sec. 5714a, Rev. Stat. has power to assess the value of the dower interest at a gross sum and charge the same upon land under certain circumstances. And where this is one, it will be presumed that the requisite circumstances existed and that the judgment is valid.


A land owner may pay the sum assessed as the value of a dower interest and under a covenant against incumbrances may recover the expense incurred in defending the action for dower and the value of the dower interest which he was required to extinguish; nor is the amount found by the court in the action for dower necessarily the value of the dower interest to be recovered by the purchaser.

13 O. C. D. Vol. 12

Allen Circuit Court.


Richie, Leland & Roby and Edwin Blank, for plaintiff in error,

cited :

Dower interest: Black v. Kuhlman, 30 Ohio St., 196-199; Unger v. Leiter, 32 Ohio St., 210-213; Dingman v. Dingman, 39 Ohio St., 172-177; Mandel v. Clave, 46 Ohio St., 407-411 [22 N. E. Rep., 290; 15 A. S. Rep., 627; 5 L. R. A., 519].

Subject to sale and assignment: Jackson v. Vanderheyden, 17 Johns, 167; Douglass v. McCoy, 5 Ohio, at p. 527; Todd v. Beatty, Wright 460; Avery v. Durfrees, 9 Ohio, 145, 147; McMahon v. Gray, 22 N. E Rep., 923 [150 Mass., 289; 5 L. R. A., 748; 15 A. S. Rep., 202]; Strong v. Clem, 12 Ind., 37 [74 Am. Dec., 200]; Mitchell v. Winslow, 2 Story, 630; Nicoll v. N. Y. R. R., 12 N. Y., 121; Stroughton v. Froust, 4 Blackf., 379; Kent's Com., 269; Moon v. Lancaster, Wright 35; Ford v. Rehman, Wright, 434; Weakly v. Hall, 13 Ohio, 167 [42 Am. Dec., 194]; Pomeroy's Eq. Jur. Vol. 1, Sec. 137; Vol. 3, Sec. 1270; Payne v. Becker. 87 N. Y., 153; Pope v. Mead, 1 N. E. Rep., 671 [99 N. Y., 201]; Boltz v. Stolz, 41 Ohio St., 540; Strong v. Clem, 12 Ind., 37 [74 Am. Dec. 200].

Cable & Parmenter, for defendant in error, cited:

Section 5707, Rev. Stat., et seq.; Secs. 5708, 5714, Rev. Stat.; Miller's Admr. v. Woodman, 14 Ohio, 518, 520; 10 Ency. of Law (2nd Ed.), 146-147; Johnson v. Nyce, 17 Ohio. 66, 68, 70-71.

Covenants: Gest v. Kenner, 12 Dec. (Re.), 343 [2 Handy, 87, 94]; Great Western Stock Co. v. Saas, 24 Ohio St., 542, 552.

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In the court of common pleas Weyer filed his amended petition, and therein alleged that in 1888 one Massa W. Baker, being seized in fee simple of certain lands, conveyed the same to Newton Sager, Sr.; that at the date of said conveyance Massa W. Baker was intermarried with one Harry E. Baker who did not join in said conveyance or otherwise release his dower in said premises; that about April 25, 1889, Massa W. Baker died leaving Harry E. Baker her widower, and said widower is still living. that September 22, 1892, Newton Sager, Sr., for the consideration of $300.00 b deed duly executed, and with covenants against incumbrances and of general warran'y conveyed said lands to Weyer; that after September 22, 1892, Harry E. Baker before the admeasurement of his said dower state, sold and by deed duly executed conveyed his dower interest in said premises to one Susannah Bechtol; that thereafter in a certain action pending in the court of common pleas of this county, wherein Weyer was plaintiff and Susannah Bechtol was defendant, said Susannah Bechtol, as grantee of Harry E. Baker, by her cross-petition demanded, and upon trial estab:i-hed, nur claim to dower in said lands, and he court in said action found the value in a gross amount of said dower interest, and charged the amount so found as a lien upon said lands and ordered that in default of payment the lands be sold as upon execution; that Sager was notified of the pendency and prayer of the cross-petition of Bechtol, but failed to make defense in said action; " that Weyer was compelled to and did pay the amount of said lien in discharge thereof, and also paid attorney's fees and costs in said action, in ali amounting to $175.00, for which amount he prays judgment against said Sager.

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