Franklin Common Pleas. commissioner that the plaintiffs were estopped from asserting the invalidity of said act, but were not estopped from seeking and obtaining such relief as they would be entitled to, were said act valid. If the act were valid, equity would relieve against an assessment in excess of the special benefit to their land by reason of the improvement, to the extent of such excess. The burden of proving that the plaintiff's land was not specially benefited by the improvement to an extent equal to or greater than the assessment made upon their land by reason thereof upon proof of the estoppel alleged, was cast upon the plaintiffs, and if the evidence is insufficient to show that their lands were not thus benefited to said extent, the prayer of the petition must be denied. The effect of the estoppel is that said act though invalid will be enforced against the plaintiff to the same extent as it would be if the act were valid, but to no greater. An assessment upon the grand tax duplicate of the county is prima facie or presumptively valid. This prima facie case is overcome when it is made to appear to the court that the act under which the assessment was made was and is invalid. But when the alleged defense of estoppel set up by the county treasurer is proved, the court will not permit the plaintiff to avail herself of the invalidity of the act, but will enforce it against her as if it were valid, and the prima facie case made by said tax duplicate will, in such case, be given the same force and effect to which it would be entitled, if the act were valid. The master found for the plaintiff on the ground that her land was not specially benefited by the improvement to any extent over and above what she had paid, to-wit, two of the ten equal annual installments, before she commenced this action. As to this finding of fact upon the evidence, this court does not agree with the learned master. The evidence taken on the hearing to prove or disprove that plaintiff's property was specially benefited by the improvement, and the extent of such benefit has little or no legitimate bearing upon the question. The highway was improved for a distance of about two and onehalf miles, and each of the plaintiffs had a frontage thereon of less than seven hundred feet. The petition for the improvement was filed in December, 1891, and the contract made in the spring of 1892, and the work completed in the fall of 1893. According to the evidence, the financial panic began in 1892, or 1893, and the value of real estate decreased generally all over the city of Columbus. Witnesses testified to the value of plaintiff's land and other lands during the construction of the improvement and for a few years before and after its construction. But the defect in the evidence is that it affords the court no standard or means whereby the effect of the improvement upon the value of the plaintiff's land can be reasonably ascertained. If the testimony warrants Murphy v. Sims. the inference that plaintiff's land was of less value after the completion of the improvement than before it was commenced, it by no means follows that her land was not benefited thereby to the full extent it was assessed. The cause of the depreciation can not be intelligently determined from the evidence. Under the statute, the lien attaches to the land on the day the contract is made. If the witnesses had testified to the value of plaintiff's land on that day, without the improvement, and also as to its value on the same day, assuming the improvement to be completed, the difference in values thus shown by the testimony would have afforded the court means upon which to predicate its judgment. But proof only of the value of the land before the improvement was commenced in May, 1892, and the value thereof after the improvement was completed, that is, after the fall of 1893, affords no rational standard whereby the rights of the parties can be determined, To hold otherwise, one would have to disregard the law of causation. The prima facie case made by the grand tax duplicate of the county, is not disproved by the testimony, to the extent at least found by the master, and for this reason the exceptions of the defendant Sims. treasurer, are sustained, and the case is opened up for the taking of further testimony. CORPORATIONS-STOCKHOLDERS' LIABILITY-ACTIONS. LILLEY V. Kinnear, Calk Co. ET AL. JOINDER OF ACTIONS FOR UNPAID SUBSCRIPTIONS AND STATUTORY LIABILITY. Under Sec. 8260, Rev. Stat., as amended and supplemented April 16. 1900, 94 O. L. 359, providing that no cause of action exists on the duplicate liability of stockholders until the property and assets of the corporation and the collectible stock subscriptions have been exhausted, a creditor may join a cause of action to compel payment of unpaid subscriptions for stock and a claim to enforce the statutory liability of its stockholders for the satisfaction of his debt, in the same manner as he could before the passage of such act. Nor does it make any difference that his claim is not reduced to judgment. BIGGER, J. The defendant Brickell demurs to the second amended and supplemental petition herein upon the ground, first, that two alleged causes of action are improperly joined; second, because of misjoinder of parties plaintiff; third, because of misjoinder of parties defendant in the second cause of action; and fourth, because neither the first nor the second cause of action state facts sufficient to constitute a cause of action. The second ground of the demurrer, counsel for the defendant Brickell concedes is out of the case, as the plaintiff does not claim to be prosecuting this action in his capacity as receiver of the defendant corporation but only in his capacity as a creditor. As to the other grounds of the demurrer I cannot escape the conclusion that the Supreme Court of this state has decided this question. 5 13 Dec. Franklin Common Pleas. The case of Warner v. Callender, 20 Ohio St. 190, decided that "a judgment creditor of an insolvent railroad corporation, may join, in the same action, a claim to compel payment of unpaid subscription for stock, and a claim to enforce the individual liability of stockholders for the satisfaction of his judgment." It is true as counsel for defendant points out that this was a judgment creditor. But in Peter v. Foundry & Machine Co., 53 Ohio St. 534 [42 N. E. Rep. 690], the Supreme Court laid down the same rule of pleading as to creditors whose claims have not been reduced to judgment. The syllabus is: "In such an action a defendant may join in his cross-petition a cause of action for money payable to the insolvent corporation by a stockholder thereof on account of stock issued to him, with a cause of action against all the stockholders of the concern upon their statutory liability as such stockholders. "If the corporation is insolvent and its assets in the hands of a receiver, a creditor may, by a cross-petition, seek the enforcement of the statutory liability of the stockholders, although his claim has not been reduced to judgment." This case extends the doctrine to the case of a mere contract creditor. Now it is argued that the amendment of and the supplement to Sec. 3260, Rev. Stat, recently passed, make these decisions inapplicable. It is argued that under the statute as it now stands there is no such thing as liability against the stockholders on their statutory liability until it has been first determined that there is no property or assets of the corporation sufficient to satisfy the claim; that the stockholders' liability on their subscription is a primary resource for the payment of plaintiff's claim and that the stockholders' liability can not be enforced until this has been exhausted. But that was the law before the passage of this act. In Warner v. Callender, supra, although they were permitted to be joined, Judge Welsh says in the opinion on page 195: "It seems to us that these causes were properly joined in the same action. The plaintiff sought to subject two funds to the payment of his judgments. "One of these funds, the balance due on these subscriptions was primarily liable. In the event of its insufficiency, and in that event only, he might resort to the other fund, the pro rata for which the stockholders were individually liable. It is the peculiar province of equity to marshal and apply such funds, and this can best be done where all parties are before the court." So that the argument that no cause of action exists on the duplicate liability until the property and assets and collectible stock subscriptions have first been exhausted, applied as well before the passage of this act as since, as is pointed out by Judge Welsh, and yet they were permitted to be joined in one action. Lilley v. Kinnear, Clark Co. et al. The act of April 16, 1900, 94 O. L. 359, amending Sec. 3260, Rev. Stat., and supplementing it, is not by any means clear, but it would seem that practically all objections to this petition which are here urged, could have been urged to such a pleading before its passage. And yet the court held that such causes of action were properly joined. I am therefore of opinion that they may still be joined. As to whether or not the defendant is entitled to a jury trial upon the question of his liability is a question to be determined later. It would seem that this claim of right to a jury trial could have been made with the same force as an objection in the cases decided by the Supreme Court, holding that such joinder is permissible. The demurrer is therefore overruled. HIGHWAYS-DEEDS-ESTOPPEL. [Franklin Common Pleas, August 2, 1902.] OTTO L. HAays et al. v. Olentangy PARK Co. et al. Deed ReserVING EXISTING STREETS AS HIGHWAYS-ESTOPPEL. When certain streets are open and existing at the time the deed is made and the deed covenants that they shall be and remain forever public highways, and other parties have acquired rights therein, the deed estops everybody under it from denying the existence of such highways, notwithstanding the grantor and grantee might have revoked the dedication before it was accepted by the public, and although they may not be highways in the sense that the public would be liable to any one injured thereon nor the public bound to keep them in repair. Hon. Gilbert H. Stewart, for plaintiff. W. J. Dusenbury, for defendants. EVANS, J. This is a case to have determined by the court whether certain streets in Olentangy Park ground are public or private. The two plaintiffs here, Mr. Hays and Mr. Mackay, each own something over four hundred feet fronting on High street, on the west side thereof. Their lands run west to a street designated here as a sixty foot street. From the south end of that street leading up to High street is another street designated as a thirty foot street. This fifty foot street runs from this thirty foot street north to the land of Wilson. The plaintiffs have brought suit to enjoin the defendants from closing up the streets and compel them to remove certain obstructions in the street. The evidence shows that in 1865 or 1866 Harriett Guitner acquired a title to this land, the land owned by Hays and Mackay now, the land to the west now owned by Mr. Chittenden, the land south of the thirty foot street belonging now to Mrs. Ramlow, and the land on the east side of High street. She and her husband lived on the east side of the street first until along sometime in 1884 or perhaps later. They then moved across the street into a house on the south side of the thirty foot street and then a couple of years later to the house farthest east of the three Franklin Common Pleas. houses on the north side of the street. She lived there until 1888. In 1887 she and her husband made a deed to Henry T. Chittenden for the land to the west of the tracts of land now owned by the plaintiffs in this case, and in that deed there is a clause providing: "It is hereby covenanted and agreed that the fifty foot street,-referring to it as said fifty foot street designated in this deed,--and the thirty foot street shali be and remain forever public highways." By that deed she granted and conveyed the land from the middle line of this fifty foot street westward to the river to Henry C. Chittenden. The evidence shows quite conclusively that for several years prior thereto, that is, prior to the time of the execution of that deed, these two streets had been opened. They were opened by Mrs. Guitner. First, she opened the thirty foot street, probably in 1881 or 1882. The exact date I think the testimony shows. Perhaps a couple of years later she opened the fifty foot street and the thirty foot street was fenced on either side. It was thrown open to the public. It was fenced on the south side and the north side back to the fifty foot road. It may have run clear to the river, but whether or not it did is immaterial so far as this case is concerned. The fifty foot road as I said was laid out a year or two after the other. It must have been laid out as far back as 1883 or 1884 anyhow or possibly farther back. It was thrown open to the public. There was a bridge built in the fifty foot street across the ravine two or three years after the thirty foot road was opened. It remained in that condition until this deed was made in 1887 which contained said covenants. After that deed was made and delivered these roads remained opened. Just how long I do not know; nor, in the view I take of the case, is it material. Later on there were some obstructions. A gate was put in, but these streets were not inclosed for several years afterwards, a year or two or more anyhow. This case has been well argued by counsel on both sides. I have been greatly aided in reaching a conclusion on the facts and the law in respect to the case by reason of the thorough way in which it has been presented. A common law dedication is where a proprietor opens a street with the intention that it shall be used as a highway and hence gives it to the public as a highway forever and the public accept it by improving it in some way or by using it. If people use it it is a good acceptance. Of course, after it is accepted as a highway by either of these modes the dedication becomes irrevocable. Whether prior to the making of the deed they were public ways or not I need not discuss or consider. They have been used by the public generally for several years and have been opened so that they might be used by the public going down to the picnic grounds. Mrs. Guitner opened picnic grounds and entertainment houses, and to approach these places these ways were laid out by her through her own lands. |