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Manufacturing Co. v. Manufacturing Co.

except in the syllabus: The use of the water for the citizens for domestic purposes could not be restrained by legislation or grant.

For such purposes the law of paramount necessity would have justified the taking. There is no authority cited here by the court, but when we come back to see the points made by counsel we find that there are two cases cited by counsel for plaintiff in error; one, I think, is 2 Denio. An action was brought against the city of New York to recover damages for destruction by water and against the mayor of New York for the destruction of buildings to prevent the spreading of fire. It was held that outside of the statute and at common law there could be no recovery, because it was one of those cases of inevitable necessity. So, perhaps, it that is the rule which the Supreme Court of Pennsylvania mean to follow, then, in order to apply that rule where water is taken for domestic purposes by a city, that there must be a necessity for thus taking the water. As the Supreme Court say in this case, no such necessity existed; and what is quite evident from the reading of the opinion, together with the authority which is cited by counsel, that to sustain the doctrine that it would be necessary and that the city would be justified in taking it for domestic purposes if it were necessary to do so, but not otherwise.

But, in this case, the rule does not apply, for the reason that it is not the village of Kent that is taking this water, but it is the defendants' foreign corporation, that is taking this water and making merchandise of it by selling it to the citizens and railroad companies and others, and manufacturers of the village of Kent. And, in this case, I may say further, that as to the necessity to take it, even for domestic or manufacturing purposes, this contract which has been offered in evidence in this case shows that there are three other sources from which this water may be taken, and that the defendants have the liberty to take and furnish the water under their contract from either one of those places: I would say the defendants, under their contract, are at liberty to take their water from either one of the three other sources or places; so that the necessity of taking the water from Plum creek for this purpose is not apparent and does not appear in this case.

I think I need not take up more time in the review of the cases bearing upon this question. Then, perhaps, I should say something in regard to the question whether or not the plaintiffs have a remedy at law.

The proof in the case shows that this is a continuing nuisance or continuing injury and a continuing substantial damage, daily, monthly and yearly to these plaintiffs.

Now as I have read Crawford v. Rambo, supra, the circuit court uses this language: "It is sufficient, however, in this regard," that is, that there must be substantial and continuing injury, "that the damage are constant and frequent recurrence that no adequate compensation can be made thereby."

In the early case of Thayer v. Brooks, 17 Ohio, 489 [49 Am. Dec. 474], it is laid down that an action can be sustained in Ohio to recover damages for an injury occasioned by fire or water, although the act which occasioned the damage may have been committed in Pennsylvania.

The rule of damages in an action for a nuisance, is the injury actually sustained at the commencement of the suit; and the court say, in the opinion-Birchard, J.: "Supposing the party liable at all, he was

Portage Circuit Court.

only liable under any form of declaration, for the damages actually sustained prior to the commencement of the suit." So that the plaintiff in this case could not maintain an action to recover full and final damages for the injury which he had sustained, also all for the injury which they should sustain in the future. I may say, that we have examined, and we do not find that Thayer v. Brooks, supra, from which I have read, has been overruled by the Supreme Court of this state, and it is now at least, the settled law of Ohio upon that question. So, that, as I have said, the plaintiffs in their action would be compelled to commence actions daily, weekly or monthly as the case might be, for the purpose of recovering damages for their injuries; and they would also be compelled, in order to maintain their rights and to save the claim of the action of these defendants from getting into complete title by adverse user and they would be compelled to commence action at least once in twenty-one years for the purpose of maintaining their rights in this property. Then the rule which usually obtains, when a court of equity will take jurisdiction for the purpose of preventing a multiplicity of suits and a case of this kind, where at law they cannot recover adequate damages, or in other words, at law there is no adequate remedy, the court of equity will take jurisdiction. In a case of this character, if at law damages could be recovered, the uncertainty as to what future damages would be, the uncertain means and data which could be looked at as evidence bearing upon that question would be so uncertain and so unreliable that no court or jury could with any reasonable certainty determine what the future damages would be.

It might depend upon a great variety of circumstances. We think upon all of these grounds that we have a case here where a court of equity in Ohio, under Ohio decisions, would take jurisdiction. Now, the question arises-To what extent will this jurisdiction, in a case of this character, be extended? The rule seems to be well settled, not only in Ohio, but elsewhere, that in order to maintain this action the nuisance must create a material injury to the plaintiff and a substantial damage. If there is no injury or substantial damage, then, very likely, in Ohio, a court of equity would not take jurisdiction and would leave the party to bring his action at law, and under an action at law under Tootle v. Clifton, 22 Ohio St., 247 [10 Am. Rep. 732], he would be entitled to recover nominal damages at least, because it would be necessary for him to commence and maintain his action at law to prevent the claim of defendant from ripening into perfect title and taking away plaintiff's property. But, will a court of equity go beyond this, and will a court of equity go beyond where the proof in the case shows that the party as the plaintiff has been injured and grant full and final relief, or, should a court of equity stop and shut off its order as that the abatement of the nuisance would be to that extent that it should cease for the present at least to do injury or damage to the plaintiffs? And we think in this case, that while, as I have said, a court of equity, ordinarily, at least, would not assume jurisdiction unless material injury and substantial damage was done. Yet, when it is done and that is proven, at least to that extent in Ohio, a court of equity should take jurisdiction and act.

As I have said, the proof in this case shows that there the ordinary flow of Plum creek at its ordinary stage of water is 125.7 cubic feet in a minute, and at that stage of water, both in Plum creek and the Cuyahoga river, the plaintifs in this action need all of the water, and that the taking away of any material portion of it is an injury to the

Manufacturing Co. v. Manufacturing Co.

plaintiffs, and, as, we have found, the taking away of this 125.7 cubic feet of water by the defendants is an injury to the plaintiffs; and so we find and order in this case, that the defendants be restrained from the taking of water, or in other words, that they shall permit to flow, 125.7 cubic feet of water per minute, and that, we believe, is substantially the order which was granted by the court below, with this further proposition, however, which we think should be added, and that is, that the plaintiffs, upon 30 days notice to and motion to this court, may have the leave to apply for a modification of this order or extension of the order-either modification or extension.

Mr. Stuart: Which party?

The Court:


Mr. Stuart: Will the same right be reserved to the defendants?

The Court: That we have considered, and in our judgment it ought not to be allowed to the defendants. We only give this to the plaintiffs for this reason, that in the future the taking of the surplus water beyond that amount may produce an injury, a substantial injury and substantial damage to the plaintiffs, and if it shall do so in the future, then this order ought not to be final and they should have the right to apply upon it showing the order would be either modified or extended. Mr. Stuart: The other side appealed in this lawsuit as well as us, and do not your Honors think they ought to pay some of these costs? They appealed before we did. We might have gotten along without appealing at all, and it is just the same decree as before.

The Court: We have modified the decree so far as to give them, in the future, should any change be made in the circumstances, the right to apply for modification or extension of the order.

Mr. Stuart: I think that in equity they ought to pay half the costs in the circuit court.

The Court: Upon consideration of this question, which we had not considered before the fact that both parties appealed and that the order which we have now made is substantially the same order made in the court of common pleas, and while the costs are probably not heavy, we think that probably under these circumstances it would be proper and just that each party should pay their own costs in this court, but that the plaintiffs should recover their costs in the court of common pleas. Mr. Stuart: I have one more request to make of your Honors. want to have this injunction made to take effect the first day of July. The Court: We made it ninety days. We have considered that part


of it.

Mr. Stuart: We have to do one of two things, either auction off our things, or find water elsewhere.

The Court: We will consider this. How long did you say you wanted?

Mr. Stuart: I do not want to put it any time where it is going to interfere with their water. All the witnesses put it along in the summer, but one, I think-put it in June. I would like until the first of July, but if the court thinks that is too long then I would like it—

The Court: We fixed it 90 days that they might do something or get a supersedeas if they want to. I am not speaking of that as fixing this matter at all. It will be remembered, however, that we except the water above the ordinary stage. We do not know how much that might affect you. Is there any objection to fixing this the first of June? Mr. Wolcott: I presume not.

Portage Circuit Court.

The Court: The order is of that character, that it is to take effect at such time, if they do not acquire the right from the plaintiffs within such time.

Mr. Holland: If the court please, I do not think we have any objection to fixing it at the first of May. I know there is a very dry time during June.

You may take your order to the first

The Court: The first of June. of June.

Mr. Carpenter: I wish that the stenographer be instructed so he will not mention the petition of Milbank as answer and cross-petition. The Court: Yes, make Milbank co-plaintiff; instead of crosspetitioner.


[Stark Circuit Court, May 5, 1897.]

Adams, Pomerene and Douglass, JJ.

*ULMAN EINSTEIN & Co. v. Effinger.


A judgment may be set aside for fraud although defendant was properly served with summons, by copy left at her usual place of residence, and made no defense to the action, where a good and valid excuse is shown for not defending.


A judgment procured against a party on an account which she never owed nor The judgment of the circuit court in this case was affirmed by the Supreme Court, 60 Ohio St., 579 [54 N. E. Rep., 1101].

Nat. C. & J. S. McLean, for plaintiff in error in the Supreme Court, cited: Pleading Pendleton v. Galloway, 9 Ohio, 178 [34 Am. Dec., 434]; Baldwin v. Sheets,39 Ohio St.. 624.

Collateral attack: Spier v. Corll, 33 Ohio St., 236; Lewis v. Moon, 1 Circ. Dec. 116 (1 R. 211]; Bigelow v. Bigelow, 4 Ohio, 134, 138, 148 [19 Am. Dec., 591]; Buell v. Crop, 4 Ohio, 327; Douglass v. McCoy, 5 Ohio, 522; Foster v. Dugan, 8 Ohio, 89, 107; Adams v. Jeffries, 12 Ohio, 53 [40 Am. Dec., 477]; Boswell v. Sharp, 15 Ohio, 447; Paine v. Mooreland, 15 Ohio, 435 45 Am. Dec., 585]; Douglass v. Massie, 16 Ohio, 271; Cochran v. Loring, 17 Ohio, 409; Newman v. Cincinnati, 18 Ohio, 323! Reynolds v. Stanbury, 20 Ohio, 344 [55 Am. Dec., 459]; Fowler v. Whiteman, 2 Ohio St., 270, 286; Moore v. Robison, 6 Ohio St., 302; Trimble v. Longworth, 13 Ohio St., 431; Callen v. Ellison, 13 Ohio St., 446 82 Am. Dec., 448; Hammond v. Davenport, 16 Ghio St., 177; Calkins v. Johnston, 20 Ohio St., 539, 549:

Collateral impeachment in tribunal rendering the judgment: State v. Daily, 14 Ohio, 91; Calvin v. State, 12 Ohio St., 60, 70; Wooster Bk. v. Stevens, 1 Ohio St., 233 [59 Am. Dec., 619].

Justice courts-Court of record: Adair v. Rogers, Wright, 428; Stockwell v. Coleman, 10 Ohio St., 34, 40:

Jurisdiction: McCurdy v. Baughman, 43 Ohio St., 78 [1 N. E. Rep., 93]; State v. Daily, 14 Ohio, 91; Spier v. Corll, 33 Ohio St., 236; Lewis v. Moon, 1 Circ. Dec., 116 (1 R. 211); Griffin v. State, 18 Ohio St., 438, 446.

Peter J. Collins, for defendant in error, cited:

Pleading: Mansfield, C. & L. M. R. R. Co. v. Hall, 26 Ohio St., 310; Shroyer v. Richmond, 16 Ohio St., 455:

Collateral attack: Wooster Bank v. Stevens, 1 Ohio St., 233 [59 Am. Dec., 619]; Conway v. Duncan, 28 Ohio St., 102; Ralston v. Wells, 49 Ohio St., 301 [30 N. E. Rep., 784]; Baldwin v. Sheets, 39 Ohio St., 624.

Fraud and collateral attack: Freeman on Judgments, Secs. 486, 495; 2 Black on Judgments, Sec 979; Hogg v. Link, 90 Ind., 346; Miller v. Longacre, 26 Ohio St., 291; Coates v. Bank, 23 Ohio St., 415; Darst v. Phillips, 41 Ohio St., 514, 518.

Einstein v. Effinger.

became either directly or indirectly liable for, may be set aside in a proper proceeding brought for that purpose.

3. PLEADING Sufficient Averment of Fraud.

It is a sufficient averment of fraud in a petition to set aside a judgment to allege that the merchandise for which the judgment was obtained, was sold to plaintiff's husband and that afterwards the name of the wife was inserted in the account therefor, without her knowledge or consent, which account with her name so fraudulently inserted was sued on and judgment procured, against her.


Memorandum of decision.

First. A judgment may be set aside for fraud notwithstanding the fact that no defense was made at the time it was rendered although the defendant was properly served with summons by copy thereof left at her usual place of residence.

Second. A judgment procured against a party on an account which she never owed, nor became neither directly nor indirectly liable for its payment, constitutes a fraud on the court rendering such judgment, which should be set aside in a proper proceeding brought for that purpose.

Third. An averment in a petition that goods or merchandise were sold to a husband, and that atterwards and before suit is brought to recover the price thereof, the plaintiffs insert the name of the wite of such husband in said account, and without her knowledge or consent, is a sufficient averment of fraud to constitute a cause of action, and a demurrer to such petition and pertinent interrogatories attached thereto is properly overruled.


[Auglaize Circuit Court.]

Price, Day and Finley, JJ.

* ELIZA GRAHAM ET AL. v. Michael Burggraf eT AL.


The record of deeds is competent as evidence in an action involving title to land, where there are irregularities in the execution of the deed.

2. EVIDENCE ESTABLISHING Signature to a Deed.

The testimony of a witness who saw a deceased grantor sign a deed, and the identification of the deed in question, and the testimony of three or four expert witnesses that the handwriting is that of such grantor, are, standing uncontradicted, sufficient to establish the signature of such grantor.


A party may sign a deed elsewhere than in the place provided for that purpose; and if in other respects regular, and the signature is properly identified, the

The judgment of the circuit court in this case was affirmed by the Supreme Court, unreported, 59 Ohio St., 603.

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