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own house, for that is a matter he can remedy at will, but to protect the public against a nuisance which they have no power to prevent except through the authority of a town ordinance acting on the offender.

A nuisance is to the public, or to others, and not an injury or annoyance which a person causes to himself and family. It is an anomaly that the defendant, who has disobeyed the ordinance forbidding him to commit a nuisance upon the public, should be complaining that the town did not go further and forbid him being a nuisance 1095 to himself. He could refrain from that without official help.

There is no discrimination in this ordinance, for it forbids all citizens alike from keeping hogpens within one hundred yards of the residence of another. The learned counsel of the defendant, however, frankly admitted that it is not every discrimination which would make a town ordinance invalid, and that this would be the case only when the discrimination is an unreasonable one: State v. Call, 121 N. C. 643, 648; Slaughterhouse cases, 16 Wall. 36.

No error.

MUNICIPAL CORPORATIONS-POWER TO DECLARE NUISANCE.-Under a general grant of power over nuisances, town authorities have no power to adopt an ordinance declaring a thing a nuisance which in fact is clearly not one, but in doubtful cases, depending upon a variety of circumstances requiring judgment and discretion, their action is conclusive: Harmison v. Lewiston, 153 Ill. 313; 46 Am. St. Rep. 893, and note. See Grossman v. Oakland, 30 Or. 478; 60 Am. St. Rep. 832, and note; Walker v. Jameson, 140 Ind. 591; 49 Am. St. Rep. 222. Under such power, a city may regulate the location of livery stables within its limits: Chicago v. Stratton, 162 Ill. 494; 53 Am. St. Rep. 325; though a stable is not prima facie a nuisance: Burditt v. Swenson, 17 Tex. 489; 67 Am. Dec. 665, and note; extended note to Shiras v. Olinger, 32 Am. Rep. 141-143. Likewise, it may declare a slaughter house within town limits a nuisance: Harmison v. Lewiston, 153 Ill. 313; 46 Am. St. Rep. 893, and note; a slaughter house so located being prima facie a nuisance: Catlin v. Valentine, 9 Paige 575; 38 Am. Dec. 567; Seifried v. Hayes, 81 Ky. 377; 50 Am. Rep. 167. But an ordinance declaring that "all hogpens or lots now used as such, are hereby declared a nuisance and shall be abated," is too broad and sweeping in its provisions, and is invalid: Ex parte O'Leary, 65 Miss. 80; 7 Am. St. Rep. 640. See monographic note to Milne v. Davidson, 16 Am. Dec. 194-198.

CASES

IN THE

SUPREME COURT

OF

MUNICIPAL

OHIO.

WILHELM V. DEFIANCE.

[58 OHIO STATE, 56.]

CORPORATION-SIDEWALKS-PROPERTY OWNER'S LIABILITY.-A municipal corporation may, upon proper notice, require an abutting property owner to construct a sufficient sidewalk in front of his premises, and, upon his failure to do so, may itself construct such walk and assess the cost thereof against his property, but it cannot recover indemnity from him for money paid out on a judgment against it for injury caused by his negligent construction of the sidewalk.

MUNICIPAL CORPORATIONS-SIDEWALKS-LIABILITY OF PROPERTY OWNER.-If a municipality accepts a sidewalk constructed by the owner of abutting property, pursuant to its notice, and in compliance therewith, all liability for mere negligence in construction and maintenance must rest and remain upon the city.

In compliance with an ordinance of the city of Defiance and notice received from the authorities of such city, Wilhelm, a property owner therein, undertook to build a sidewalk in front of his premises, and upon its completion it was accepted by the city. Thereafter, Mary L. Sammis, while passing along such walk, without fault on her part, sustained severe injuries, for which she recovered judgment against the city. It paid the judgment, and then brought this action against Wilhelm to recover indemnity from him, alleging that he constructed the sidewalk in a negligent manner and of defective materials, and that he left it in an unsafe and dangerous condition. Hence the injury. Judgment in favor of the city. Wilhelm appealed.

H. and E. H. Newbegin, for the plaintiff in error.

E. A. Latty, for the defendant in error.

63 SHAUCK, J. In Morris v. Woodburn, 57 Ohio St. 330, we held that if the owner of a lot abutting upon a street of a municipality, for the use of his property, constructs a vault under the sidewalk, over which he negligently places and maintains a defective covering, he is liable directly to a footman injured thereby, notwithstanding the omission by the municipality of the duty imposed upon it by statute to keep the street in repair. And since the decisions in Chicago v. Robbins, 2 Black, 418, and Robbins v. Chicago, 4 Wall. 657, it seems to be the settled law that if a municipal corporation is held in damages for its failure to keep a sidewalk in repair by removing the source of danger so created by an abutting owner for his own personal ends, it may, having given him notice of the pendency of the suit against it, recover from him the amount which it is adjudged to pay be cause of his tort.

But it is not assumed that the grounds upon which recoveries were sustained in those cases are available here. The opinion of the circuit court in the present case (12 Cir. Ct. Rep. 346) shows that it was mindful of the fact that the statute imposed 64 upon the municipality, and not upon the abutting owner, the duty of keeping the streets and sidewalks in repair and free from nuisance. It is conceded that the law imposes upon such owner no duty with respect to the walk whose mere omission could be asserted as the foundation of an action against him. According to the view there taken, Wilhelm, having assumed the duty of constructing and maintaining the walk, thereby became bound to exercise due care in the selection of materials and reasonable skill in constructing and repairing the walk, and by his failure in respect thereto he actively created the dangerous place and negligently left it unguarded, whereby he became directly liable to the person injured or to the city in the present action, it having been compelled to respond first because of its failure to perform the duty imposed upon it by the statute. No authority is cited by the circuit court in support of this view, and most of the cases cited by the city solicitor in support of the judgment relate to the points decided in Morris v. Woodburn, 57 Ohio St. 330, Chicago v. Robbins, 2 Black, 418, and Robbins v. Chicago, 4 Wall. 657.

The right of the municipality to recover from the wrongdoer was upheld in Chicago v. Robbins, 2 Black, 418, and in the cases following it, upon the ground that the recourse of the person injured is primarily against him; and the municipality, having relieved him of that liability, is subrogated to the rights of

the person injured. In Rochester v. Campbell, 123 N. Y. 405, 20 Am. St. Rep. 760, it was correctly said of those cases: "These were all cases where the dangerous conditions of the streets were created by the defendants, and they were held liable for the consequences of their unlawful acts, under their common-law obligations as the creators 65 of nuisances, and not by reason of any duty enjoined upon them by statute or otherwise." Section 2640 of the Revised Statutes provides: "The council shall have the care, supervision, and control of all public highways, streets, avenues, alleys, sidewalks, public grounds, and bridges within the corporation, and shall cause the same to be kept open and in repair, and free from nuisance."

This, as has been repeatedly held, is not merely a grant of power to the municipality, but the imposition of a duty upon it. Cognate provisions of the statute authorize the municipality to require, in the mode specified, the abutting owner to construct or repair the walk in front of his premises. The effect of his failure to comply with the requirement is also defined by the statute; that upon his failure, the municipality may construct or repair the walk and assess the cost thereof upon his property. But the right of the city to be indemnified in this manner is expressly limited to one-fourth of the amount at which the property is valued for the purposes of taxation. The consequence thus indicated by the statute is exclusive. In considering the effect of similar statutory provisions in Keokuk v. Independent Dist., 53 Iowa, 352, 36 Am. Rep. 226, it was said: "The city has sole authority over its streets, is charged with their improvement and repair, and vested with the power to tax for that purpose. Where the lotowner is required by the city to construct or repair a sidewalk, it is simply a method of exercising such power of taxation, by which he is made the agent of the city to expend the amount of the tax, and the responsibility for the performance of the work remains where the authority to control it is found."

In well-considered cases, it has been held that the liability which the statute imposes upon the abutting owner is exclusive and not reconcilable with an unlimited liability for injuries occasioned by the defective condition of streets and sidewalks which are constructed and maintained under the authority of the municipality, where that condition results from negligence merely: Flynn v. Canton Co., 40 Mo. 312; 17 Am. Rep. 603; Hartford v. Talcott, 48 Conn. 525; 40 Am. Rep. 189; St. Louis v. Connecticut Mut. Life Ins. Co., 107 Mo. 92; 28 Am. St. Rep. 402.

[Ohio, That conclusion is in harmony with the view of the subject taken in Rochester v. Campbell, 123 N. Y. 405, 20 Am. St. Rep. 760, where it is said that to hold the abutting property liable in an action for indemnity "would tend to relax the vigilance of municipal corporations in the performance of their duties with respect to the repair of streets and highways, and impose that duty upon those who might be utterly unable to discharge it."

The policy of the statute, as indicated by its provisions according to the doctrine of the cases cited and the numerous cases which they review, seems to require the conclusion that when a municipality accepts a sidewalk constructed by the owner of abutting property pursuant to its notice, as a compliance therewith, all liability for mere negligence in construction and maintenance must rest and remain upon it.

Judgment of the circuit court reversed and that of the common pleas affirmed.

SIDEWALKS

MUNICIPAL CORPORATIONS-DEFECTIVE ABUTTING OWNER'S LIABILITY.—Although a city may have imposed upon lotowners the public duty to keep the sidewalks in front of their premises in repair, or to raise or lower them to an established grade, yet the city, and not the owner, remains answerable in a private action for injuries resulting from his negligence or omission to act: Betz v. Limingi, 46 La. Ann. 1113; 49 Am. St. Rep. 844, and note. A municipal corporation cannot recover back from an owner of property fronting on one of its streets, damages which it has been compelled to pay to a person for injuries received by reason of its failure to keep the sidewalk in front of said property free from snow and ice, notwithstanding an ordinance of the city requires such owner to keep his sidewalk free from snow and ice, and imposes a penalty for its violation: St. Louis v. Connecticut etc. Ins. Co., 107 Mo. 92; 28 Am. St. Rep. 402, and note citing conflicting cases. That the principal case accords with the weight of authority, see extended note to Browning v. Springfield, 63 Am. Dec. 355-357; Rochester v. Campbell, 123 N. Y. 405; 20 Am. St. Rep. 760.

FIRST NATIONAL BANK OF BELMONT V. FIRST NATIONAL BANK OF BARNESVILLE.

[58 OHIO STATE, 207.]

BANKS AND BANKING

CHECKS.

LIABILITY OF DRAWEE.-The drawee of a check, draft, or bill of exchange is held to know the signature of the drawer, and makes payment at his own peril in case of forgery or otherwise.

BANKS AND BANKING-CHECKS-INDORSEMENT FOR COLLECTION-GUARANTY.-The indorsement of a check, draft, or bill of exchange "for collection," by other than the payee, is not a guaranty that the name of the drawer is genuine, but only of the genuineness of the names of the indorsers.

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