ment under the law. In such a case the pay- | law providing for their levy. The portion ment of the money could not be said to be a of section 8 of the law of 1913, above referpublic object, but would be, as said in the red to, is in direct conflict with section 5 of Lucas County Case, the giving of a bounty article XII. Each county of the state has pure and simple to one who had no real need raised a fund of its own under the law of for it in order to prevent his becoming a 1908 to be applied for the relief of its own charge upon the public. Concerning the pro- blind. Necessarily the amount and the provision in section 7 that the findings of the portionate amount which each county would probate judge shall be final and conclusive raise would be different from each of the unless reviewed, set aside, or modified by the other counties, and different from its proporboard at their discretion, it might well be tion if originally raised by the state for state doubted whether the Legislature has power purposes. To require that this money should to confer on an administrative board the au- be turned over to the state treasurer and usthority to review a final order made by a ed as a part of a fund which belonged to the court of record. Of course, if the order of entire state to be expended for the purposes the probate court can be regarded as a judi- of the entire state, although the object would cial order, the provision for review would be be similar, would produce the very inequality invalid, for such a board cannot exercise judi- and injustice which the Constitution intended cial functions. But, in any event, the provi- to prevent. Section 10 of this act repeals the sion does not furnish a definite method of ad- sections of the General Code which constiJusting the relief to the changing conditions tute the act of 1908. The provision in section and needs of the beneficiary. It is not con- 8, above referred to, for the transfer of countinuing in its duration, and it in no way pro- ty funds to the state treasury, was an essenvides a proper safeguard. The Legislature tial provision in the law of 1913, made to precannot be said to have the right to exercise vent postponement of the relief provided for. the taxing power for the accomplishment of There is no ground for the opinion that the such a result. It would not be such a pur- Legislature would have passed the statute pose, as the state is authorized to take prop- without the inclusion of the section refererty of the citizens by tax to carry out. But red to. there is another material infirmity in the law of 1913. Section 8 of this act requires that, on the demand of the state treasurer, the treasurers of the respective counties shall transfer and pay over to the state treasurer all moneys in their possession or that may thereafter come into their possession under present levies for the relief of the blind. It is conceded in the cases at bar that the county treasurer has in his possession moneys raised under the act of 1908, which were raised by taxation specifically for the relief of the blind, in accordance with the provisions of that law. In the consideration of this provision we are confronted with the plain mandate in section 5 of article XII of the Constitution that: "No tax shall be levied, except in pursuance of law, and every law imposing a tax, shall state, distinctly, the object of the same, to which only, it shall be applied." The taxes in the county treasuries, which were paid under the levies provided for in the act of 1908, can manifestly be applied only to the objects distinctly stated in the [3] Where an amendatory and repealing act is a substitute for the law repealed, and the body of the act is unconstitutional, the repealing clause is inoperative, and the old law remains in force. State ex rel. v. Buckley, 60 Ohio St. 273-297, 54 N. E. 272. For these reasons we conclude that the act of 1913 is not constitutional, and that the act of 1908 is in full force as a valid exercise of the legislative power. Judgments of the courts below in No. 14247 will be reversed, and judgment entered for the plaintiff in error. The judgment in No. 14433 will be affirmed, and judgment for defendant in error, and in No. 14434 the writ of mandamus prayed for will be allowed. Judgment accordingly. NICHOLS, C. J., and DONAHUE, WANAMAKER, and NEWMAN, JJ., concur in Nos. 14247 and 14434. NICHOLS, C. J., and SHAUCK, DONAHUE, NEWMAN, and WILKIN, JJ., concur in No. 14433. (89 Ohio St. 311) JORDAN V. BREECE MFG. CO. (No. 13498.) (Supreme Court of Ohio. Feb. 3, 1914.) (Syllabus by the Court.) 1. EASEMENTS (§ 36*)-Creation- PRESUMPTION FROM USE. Where the owner of several tracts of land ases a part or all of one tract as a roadway for his own convenience while he is the owner and in occupation of all the several tracts, no presumption arises therefrom that the tract so used is devoted to a way appurtenant to one of these tracts purchased by him at a different time and from a different proprietor. [Ed. Note. For other cases, see Easements, Cent. Dig. 88 77, 78, 88-93; Dec. Dig. § 36.*] 2. EASEMENTS (§ 18*)-NECESSITY — DETERMI NATION. The question of whether a roadway is reasonably necessary to the enjoyment of premises conveyed is one that must be determined from the conditions existing at the time of the con veyances. [Ed. Note. For other cases, see Easements, Cent. Dig. §§ 50-55; Dec. Dig. § 18.*] 3. EASEMENTS (§ 18*)-NECESSITY-ROADWAY. Where a portion of a farm is purchased by an adjoining proprietor, and while he remains the owner of the tract so purchased he uses a roadway over and across the adjoining premises owned by him for his own convenience while in the use and occupation of all his land, including this parcel, and later this parcel is conveyed to the owner of the farm from whom it was originally purchased and who thereupon reestablishes the original lines of his farm and constructs a partition fence thereon, and, being still the owner of the entire farm lying and abutting on a public highway, a roadway over and across the grantor's land is not reasonably necessary to the enjoyment by the grantee of this parcel of his own farm reconveyed to him by the grantee of the original purchaser. [Ed. Note. For other cases, see Easements, Cent. Dig. §§ 50-55; Dec. Dig. § 18.*] Error to Circuit Court, Scioto County. Injunction brought in the Common Pleas Court by the Breece Manufacturing Company against one Jordan. From a judgment of the circuit court, defendant brings error. Reversed. with the board of trade of Portsmouth to erect, complete, and start in operation a sawmill upon this 6.24-acre tract. On the 17th day of January, 1891, Holcomb, as trustee, did convey this land consisting of 6.24 acres and the 30-foot strip extending to the Gallia pike, all of which had theretofore been a part of the Rhodes farm. On the 24th day of July, 1889, the same day of the conveyance of this land to Holcomb, trustee, the heirs of John Rhodes, deceased, conveyed to the Little Kanawha Lumber Company a certain other tract of land which was also a part and parcel of the Rhodes farm. This consisted of about 4.72 acres lying north of the 6.24-acre parcel of ground above referred to, and being a strip of ground immediately north and adjoining the right of way of the Cincinnati, Washington & Baltimore Railway, 200 feet in width, entirely across the Rhodes farm from east to west, excepting therefrom a strip of ground 30 feet wide from east to west and 20 feet long from north to south on the west end of this tract adjoining the Peebles land that had theretofore been conveyed by the Rhodes heirs to Holcomb, trustee. On the 3d day of August, 1889, the Little Kanawha Lumber Company purchased directly from John G. Peebles a part of the Peebles farm containing about 3 acres 73 feet south of the Cincinnati, Washington & Baltimore Railway, contiguous to, and bounded on the east by, the 6.24-acre tract conveyed to it by Holcomb, trustee. It was provided in this deed that if the grantee, the Little Kanawha Lumber Company, failed to erect and complete a sawmill within a period of two years from the date of the deed, either upon the 6.24 acres purchased from the Rhodes heirs or upon these 3 acres purchased from Peebles, it would reconvey to Peebles this 3 acres upon condition that he return the $500 purchase money without in terest. On the 24th day of July, 1889, the board On the 1st day of July, 1891, John G. of trade of the city of Portsmouth, Ohio, pur- Peebles executed a lease for ten years to the chased from the heirs of John Rhodes a part Little Kanawha Lumber Company of a strip of what was known in that vicinity as the of land 330 feet in width, bounded on the "Rhodes farm," which farm lies directly east east by the Rhodes farm, on the north by and contiguous to a farm then owned by the Haverhill free turnpike, on the south by John G. Peebles. The amount of land pur- the line of the Baltimore & Ohio Southwestchased consisted of 6.24 acres of land' 90 feet ern Railroad, the west line of said 10 acres south of the Cincinnati, Washington & Bal- being 330 feet west of the partition line betimore tracks (which run through both of the tween the Rhodes and Peebles farms. This above-named farms) and north of the Ohio lease also provided for a 16-foot alley on the river, and bounded on the west by the Pee- west side of the 330-foot strip leased, and bles farm, also a strip of ground 30 feet wide further provided for the erection and mainon the west side of the Rhodes farm, bound- tenance by the lessee of a board fence 8 feet ed on the west by the Peebles farm, and ex- high along the west side of the alley. This tending 1,208 feet north to the Haverhill free lease also provided that the Little Kanawha turnpike, commonly known as the "Gallia Lumber Company should grant to Peebles pike," and caused said land to be conveyed to "the free right of egress and ingress over A. T. Holcomb, trustee, for the purpose of and along the streets on the east side of being conveyed by him to the Little Kanawha said leased premises, over the Rhodes lands Lumber Company when it should comply to and from and switches on said leased with a certain contract entered into by it premises and the use of the same for the purpose of loading or unloading cars at such ber Company directly from the Rhodes times as would not interfere with the use thereof" by the Little Kanawha Lumber Company. The Little Kanawha Lumber Company, being the owner of that part of the Rhodes farm conveyed to it by Holcomb, trustee, and of that portion of the same farm purchased directly from the heirs of Rhodes, and the owner of the 3-acre parcel of the Peebles farm purchased by it from Peebles and contiguous to its 6.24 acres of the Rhodes farm owned by it, and being the lessee of these 10 acres of the Peebles farm, with the right of a 16-foot alley the entire length of said leased premises from the railroad tracks to the pike, continued in the use and occupation of this property until December 17, 1897, when its business and all of its real estate holdings were sold by a receiver to Newman & Spanner, of Ironton, Ohio, who were also engaged in the sawmill business. The following plat shows these several parcels of land owned and leased to the Little Kanawha Lumber Company. 1 GALLIA PIKE. (Portsmouth Haverhill T'pke) "or 4P+7P WAIT FULLER CABINET CO. 7P 8P 330 heirs; 4P is the 3-acre tract purchased directly from John G. Peebles by the Little Kanawha Lumber Company; 5P is the tract of land leased by John G. Peebles to the Little Kanawha Lumber Company; 6P, consisting of 4P and 7P combined, is the tract of land conveyed by devisees of John G. Peebles to the Portsmouth Rim & Spoke Company by deed hereinafter mentioned (this includes the tract marked 4P, consisting of 3 acres and the tract marked 7P, consisting of 1 acre); 8P is the 60-foot strip off of the north portion of 6P conveyed by deed hereinafter mentioned by the Portsmouth Rim & Spoke Company to the Norfolk & Western Railway Company. On April 23, 1898, John G. Peebles, by a written indorsement upon the lease theretofore executed by him to the Little Kanawha Lumber Company, agreed to this transfer to Newman & Spanner. On the 4th day of February, 1898, all of this real estate was conveyed to the Yellow Poplar Lumber Company. This company wrecked the sawmill, sold and moved the buildings and machinery from the premises, and discontinued the operation of the sawmill and the manufacturing business theretofore conducted on these premises. Shortly prior to the expiraItion of the lease for the 10-acre tract, Peebles purchased from the Yellow Poplar Lumber Company the 3-acre tract he had originally sold to the Little Kanawha Lumber Company, paying therefor the sum of $500, being the same price, without interest, paid him by the original grantees. There was then upon this property a brick building that had been partly destroyed by fire. At the same time the Yellow Poplar Lumber Company surrendered to Peebles the 10 acres held by it under the original lease from Peebles to the Little Kanawha Lumber Company. This land then had upon it a board fence constructed by the original lessee, which, by the terms of the agreement to surrender, became the property of Peebles, he agreeing, in consideration of such surrender, to release NAW.RR the lessee from the further payments of rent and to build at his own expense a partition fence between his farm and the Rhodes farm. After the reconveyance of this 3 acres and the surrender of the lease, the lines of the Peebles farm were the same as they had been prior to any of these transfers: 1029 3R 4.724 Acres 1079 +6P~~ BREECE MFG.CO. OHIO RIVER BORR- 6.236 Acres Neither Peebles nor his devisees used this land for sawmill purposes or manufacturing purposes of any kind. On May 14, 1902, the devisees of John G. Peebles conveyed to the Portsmouth Rim & Spoke Company, now the Breece Manufacturing Company, the defendant in error herein, 4 acres on the east side The parcel marked 1R and 2R is the land of the Peebles farm and south of the railpurchased by the board of trade of Ports- road (6P). Of this tract of 4 acres the 3 mouth, Ohio, from Rhodes, and conveyed to acres originally deeded by Peebles to the the Little Kanawha Lumber Company by Little Kanawha Lumber Company was a Holcomb, trustee; 3R is the 4.72 acres of part. On November 21, 1903, the Portsmouth land purchased by the Little Kanawha Lum-Rim & Spoke Company, the predecessors in title of the defendant in error, conveyed to presented by the record is whether at the the Norfolk & Western Railway Company a time Peebles repurchased this tract of land strip of land 60 feet wide off of the north from the Yellow Poplar Lumber Company end of this 4 acres. This strip is designated this roadway that was then being used by on the plat as 8P, and adjoins the railway's the Yellow Poplar Lumber Company over its right of way. On the 7th day of October, own property was a way appurtenant to the 1909, the Yellow Poplar Lumber Company conveyed to the plaintiff in error, Allen Jordan, the 6.24 acres (1R), the 30-foot strip on the west side of the Rhodes farm extending to the Gallia pike (2R), and the 4.72 acres, part of the Rhodes farm north of the railway track (3R). On February 17, 1891, that part of the Rhodes farm lying north of the 4.72acre tract (3R) and east of the 30-foot strip (2R) was platted in lots, streets, and alleys, and designated as New Boston. This plat purported to show a 60-foot street extending from Gallia pike south along the line between the Rhodes and Peebles farms and the 4.72-acre tract (3R). This 60-foot strip, however, included the 30-foot strip of land conveyed in fee simple by the Rhodes heirs to Holcomb, trustee, and of which the plaintiff in error is now the owner through mesne conveyance. After the plaintiff in error acquired title to this strip of land he instituted an action against the village of New Boston to quiet his title to this 30-foot strip, and a decree was entered against the village of New Boston as prayed for in the petition, quieting the title of Jordan and enjoining the village from the use of this 30-foot strip of land as a street in said village. During the time the Little Kanawha Lumber Company was in possession of these premises it used the 30foot strip of land conveyed to it by Holcomb, trustee (2R), as a roadway to and from these premises, including not only the lands purchased from Rhodes, but the 3-acre tract purchased from Peebles, and after the sale of this 3-acre tract to Peebles it continued to use the same roadway to and from the Rhodes lands owned by it until it conveyed the same to the plaintiff in error. It also appears that, since the time of the conveyance of the Yellow Poplar Lumber Company of this 3-acre tract of land to Peebles, the owners of that land have been using the same 30-foot strip on the Rhodes farm as a roadway to and from these premises, and the original action was brought in the common pleas court to enjoin the plaintiff in error from obstructing this strip of land by fence or otherwise and from interfering with the plaintiff in its use thereof. T. C. Anderson and Joseph P. Coates, both of Portsmouth, and Joseph W. O'Hara, of Cincinnati, for plaintiff in error. Holcomb & Millar, of Portsmouth, for defendant in error. 3-acre tract. This claim cannot be sustained When this 3-acre tract of land was reconveyed to Peebles by the Yellow Poplar Lumber Company Peebles must have known the history of this entire transaction. He knew when he deeded it to the Little Kanawha Lumber Company that there was then no way appurtenant to it. When he accepted DONAHUE, J. (after stating the facts as the surrender of this lease and the reconveyabove). [1-3] There is no conflict of evidence ance of this land, his farm lines were just in this record upon any point material to the the same as before he had sold or leased Lumber Company. He could then travel pany, it conveyed to the Norfolk & Western over and across his own land to the Gallia pike, and, that being the fact, he could not claim a way of necessity over the adjoining land of his grantor. The deed from the Yellow Poplar Lumber Company to Peebles of this 3-acre tract did not purport to grant any rights or easements in this particular 30-foot strip. The grant in that deed is as follows: "All the estate, title, and interest of said grantors, either in law or in equity of, in and to said premises, together with all the privileges and appurtenances to the same belonging." Railway Company a 60-foot strip off of the north end thereof, thereby severing the connection of the remainder of the 4 acres held by it with the 30-foot strip now claimed as a roadway. In this deed to the Norfolk & Western Railway Company no right of way is reserved over the 60-foot strip. It is true that the testimony shows that the railway company has put in a crossing running diagonally from the residue of defendant in error's land to this 30-foot strip, but there is no claim that the defendant in error has any right to the use of this crossing except at the will of the railway company. This 30-foot strip extends only to the north side of the railway tracks, and never did extend to this 3-acre tract. True, the driveway was continued beyond this 30-foot strip over and across the railway tracks and upon the lands purchased from the Rhodes heirs, for the purposes of the successive owners of all this property, up until the time of the severance of title by the reconveyance to Peebles. This litigation, however, is confined to the strip of ground 30 feet wide and extending 1,208 feet south from the Gallia pike. It is this strip of land that it described in the amended petition; it is this strip of land that defendant in error claims the right to travel over; and it is this strip of land that the amended petition charges the plaintiff in error with fencing and refusing to permit plaintiff to pass over or use as a roadway. It is clear from the evidence that this strip of land, although it has been used as and for a roadway, is neither contiguous to, nor appurtenant to, the 3-acre tract, nor was it ever devoted to that exclusive purpose. The most that can be said about it is that, while one proprietor owned all these tracts, it used this roadway for its own convenience and for its own purposes, irrespective of the different parcels of land owned by it. It is clear that, unless this was at that time a way appurtenant to this 3-acre parcel of land, this deed did not convey to Peebles any interest or rights therein. That it was not at that time or at any other time a way appurtenant to the 3-acre tract is too clear for dispute. The use of this roadway by the owner was not different than if it had been used in connection with the leased land. The fact that it did serve the purpose of a way to this 3-acre tract, with other tracts, while all this property was owned and occupied by the same owner, does not evidence any intention on the part of the owner to devote this parcel to the use of the 3 acres as a way appurtenant thereto. When the sawmill business was discontinued upon this and the adjoining tract, Peebles repurchased this land at the price that he had agreed to pay for it in the deed from himself to the Little Kanawha Lumber Company. It may be, however, that that provision of his deed to the Little Kanawha Lumber Company did not control the price that he paid for this property. It is nevertheless a significant fact. It is hardly within the range of possibility that he believed or expected that he was purchasing from the Yellow Poplar Lumber Company any more than he had granted to its predecessor in title, the Little Kanawha Lumber Company, except the structures or parts of It is urged upon the attention of this court structures still standing thereon. After the that the circuit court found as a fact that sale to Peebles of this 3-acre tract it practi- this roadway was reasonably necessary to cally lost its identity as a separate parcel, the enjoyment of the premises owned by deand became a part of the original Peebles fendant in error and added materially to the farm, as it was before the original convey-value of said premises. That is undoubtedly ance. Later a deed was made by Peebles' true in so far as it applies to the conditions devisees of a 4-acre parcel of this land to the existing at the time of the commencement Portsmouth Rim & Spoke Company. The fact of this litigation, but it was not the fact, nor that this 4-acre tract included the 3-acre is there any evidence tending to prove that tract originally deed by Peebles to the Little that was the condition at the time the propKanawha Lumber Company has little or no erty was reconveyed to Peebles. On the consignificance. It might just as well have been trary, it is admitted that Peebles then owned any other 4-acre tract out of his farm. The the entire farm reaching to the Gallia pike, claim that this roadway had become appur- and that he could travel over his own farm tenant to the 3-acre tract could not by any to the highway. At that time there was a flight of imagination develop into a claim of 16-foot alley on the west side of the land a way appurtenant to the whole Peebles Peebles had leased to the Little Kanawha farm. If the claim could be sustained that Lumber Company which extended from the this was a way appurtenant to 4 acres of the railway tracks directly north of this tract Peebles farm, it could be shown by the same to the Gallia pike, so that Peebles could not reasoning to be a way appurtenant to all the then claim that a way over other lands of his farm. After these conveyances had been grantor was reasonably necessary to the enmade to the Portsmouth Rim & Spoke Com-joyment of the premises conveyed to him, and 106 N.E.-4 |