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be applicable thereto. Chapter 8, pt. 3, tit. 2, | terms as is provided for the appropriation of relates to the appropriation of private prop- the property of individuals." erty by corporations. Section 6420 is one of As already stated, title 2, c. 8, pt. 3, of the the sections of this chapter and reads as Revised Statutes, provides for the appropriafollows: "On the day named in any summons tion of the property of individuals, so that first served, or publication first completed, the statutes in this respect are identical. the probate judge shall hear and determine the questions of the existence of the corporation, its right to make the appropriation, its inability to agree with the owner, and the necessity for the appropriation. Upon these questions the burden of proof shall be upon the corporation, and any interested person shall be heard."
In pursuance to the provisions of section 6420, this case came on to be heard in the insolvency court upon these four preliminary questions, and that court found that the plaintiff is a corporation, that it is unable to agree with the owner, that it had no right to make the appropriation, and that there is no necessity for the appropriation, and dismissed the plaintiff's petition. The common pleas court affirmed this judgment. The circuit court reversed this judgment of affirmance and also the judgment of the court of insolvency, upon the theory that that court had no authority to determine the necessity for the appropriation or the right to appropriate.
[2, 3] It is insisted on the part of the defendant in error, in support of the judgment of the circuit court, that section 3283a, Revised Statutes, authorizes the board of directors of any domestic or foreign corporation owning or operating a railroad wholly or partly within the state of Ohio to determine the necessity of such appropriation, that its judgment in that respect is final, that the court in appropriation proceedings under section 3283a has no right or authority to hear and determine these questions, and that the necessity for the appropriation is solely within the discretion of the board of directors of the railroad company. The language of this statute upon which counsel for defendant in error rely is as follows: "If it be necessary in the judgment of the board of directors of any domestic or foreign corporation owning or operating a railroad wholly or partly within the state of Ohio to use and occupy for an elevated track any portion of any public ground such company may appropriate an easement over so much of such ground as may be necessary for such This language is not different from the language found in original section 3283, Revised Statutes, which was before this court in Village of Rockfort v. C., C., C. & St. L. Ry. Co., 85 Ohio St. 73, 97 N. E. 133. That section provided among other things: "And it be necessary, in the judgment of the directors of such company, to use or occupy such road, street, alley, way, or ground, such company may appropriate so much of the same as may be necessary for the purposes
They are also alike in the fact that the board of directors of the railroad company must first determine the necessity of the appropriation before the commencement of the proceedings to appropriate.
It may also be observed in passing that the language used in the original section 3283, Revised Statutes, is now used in the General Code. The presumption is that the codifiers did not intend to change the meaning of this statute, and we do not think that they have changed the meaning by substituting the words, "in the manner and upon the same terms as is provided for the appropriation of the property of individuals" (section 8767, General Code), for the words, "title 2, c. 8, pt. 3, of the Revised Statutes" (section 3283a, Revised Statutes).
In the case of Rockfort v. Railroad Co., supra, the court of insolvency of Cuyahoga county heard these preliminary questions and determined among other things that "such appropriation is not necessary for the purposes of the plaintiff's railroad," and thereupon dismissed plaintiff's petition. The common pleas court affirmed the judgment of the court of insolvency. The circuit court reVersed the judgment of the court of insolvency and the judgment of the court of common pleas affirming the same, and this court reversed the judgment of the circuit court and affirmed the judgment of the court of insolvency.
The effect of the judgment in that case is that the following language, found in section 3283, Revised Statutes: "And it be necessary, in the judgment of the directors of such company, to use and occupy such road, *"-did not confer upon the railroad company final authority to determine that question, but rather that under the provisions of this section a corporation has primary discretion in determining the necessity for the appropriation, but that under the provisions of section 6420, Revised Statutes, the probate judge is expressly given jurisdiction to hear and determine this question, as well as the other questions mentioned in that section. To the same effect is W. & L. E. Rd. Co. v. Toledo Ry. & Term. Co., 72 Ohio St. 368, 74 N. E. 209, 106 Am. St. Rep. 622, 2 Ann. Cas. 941; P., C., C. & St. L. Ry. Co. v. City of Greenville, 69 Ohio St. 487, 69 N. E. 976.
We are content with the the conclusions reached by this court in the cases above cited. We do not believe that the Legislature intended to make the board of directors of a railroad corporation a court of last resort to determine the necessity of the appropriation of property already dedicated to a public
dent that this court, when it affirmed the judgment of the circuit court of Hamilton county holding this law constitutional, did not believe it subject to any such construction as here contended for, otherwise it must have held the law to be in violation of section 16 of the Bill of Rights.
have provided some means or method by tual necessity therefor. It is therefore eviwhich persons interested might be heard before their rights are forever foreclosed by the judgment of the board of directors of a private corporation and probably would have provided for an appeal or error proceeding. When the Legislature declared that the proceedings to appropriate must be in conformity to the appropriation proceedings provided in chapter 8, pt. 3, of title 2, so far as the same may be applicable, it certainly had in mind the provisions of section 6420 of that chapter, and there is no apparent reason why the provisions of that section are not applicable to this proceeding.
In this case, as in the Rockfort Case, the property sought to be appropriated for the elevated tracks of the Louisville & Nashville Company is property already dedicated to a public use, and before it can be appropriated to another public use, which will materially interfere with the original use or be partly destructive of that use, it should be made to appear clearly that the same is necessary and not destructive of the public use to which the land is already devoted, otherwise great injustice might be done to existing rights of the public without any real necessity therefor. As, for instance, in this case, it is claimed by counsel for plaintiff in error that the real purpose of the railroad company is to cripple, hinder, and prevent river traffic, to the end that it may increase its own freight and passenger receipts, and that those in management of this company's affairs have shown an unfriendly disposition toward river navigation. Without in any way determining that this charge is true, the fact that it might be true, if not in this case, then in some other similar case, would show the absolute absurdity of committing to an unfriendly board of directors of a competing line of travel and transportation final authority to determine its own needs, to the destruction of a rival interest.
 If the construction of this section contended for by counsel for the Louisville & Nashville Railroad Company were to obtain, then the section is clearly unconstitutional. Section 16 of article 1 of our Constitution provides that: "All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law; and justice administered without denial or delay."
If a question of such vital importance to the citizens of a municipality is to be adjudicated finally by the board of directors of a private corporation without any notice to persons or municipalities interested and without even a right of such persons or municipalities to appear before the board of directors, then not only the spirit but the letter of this provision of the Constitution is violated, for in this way a most important public use may be entirely destroyed at the mere whim and caprice of the board of direc
 A consideration of the principles underlying the right sought to be asserted here could lead to no other conclusion. Eminent domain is the right of the sovereign to appropriate private property for public use upon paying to the owner a just compensation therefor to be ascertained according to the methods provided by law. In this state this right of eminent domain is vested in the state government, but the state may exercise this right through the medium of corporate bodies to whom it delegates the power to exercise it, but this right can be delegated only for public purposes; private property cannot be taken for private use without the consent of the owner. This appropriation is sought for public purposes only, otherwise there is no right to appropriate. The property, however, is already devoted to a public purpose. In 1789, when the town of Cincinnati was platted, the original proprietors dedicated this land as a common for the use and benefit of the town, forever reserving only the right to a ferry. In the dedication of this land to public use, the proprietors had a right to designate the use to which it should be applied. It is now sought to subject this land to another public use which may interfere with or even be partly destructive of the use to which it was originally dedicated. It is clear that this can be done under the provisions of section 3283a, Revised Statutes, but it is equally clear that it was not the intention or purpose of the Legislature to give any larger rights or greater powers to the company seeking such appropriation than is given in other cases. It is the settled policy of this state to protect from unnecessary interference or destruction a public use already acquired in property, and we do not think that the Legislature in enacting section 3283a, Revised Statutes, intended to relax this rule or to abandon this wise public policy.
This court, in the case of L. & N. Rd. Co. v. City of Cincinnati, 76 Ohio St. 481, 81 N. E. 983, held that the city could grant no rights in this property to the railroad company, and further held that it was not even in the power of the Legislature, unless in the exercise of the right of eminent domain, to authorize property dedicated to a public use for a specific purpose to be used for a purpose inconsistent with that to which it was dedicated. The effect of this holding is that, without the aid of section 3283a, the Louisville & Nashville Railroad could not appropriate any easement in this land inconsistent with the use to which it was originally dedicated. To
[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1556, 1732-1770; Dec. Dig. § 668.*]
extraordinary power to private corporations | delivery and was not postponed until five days also conferred authority upon these corpora- later is not contrary to law. tions to finally determine the existence of primary facts essentially prerequisite to the right to appropriate at all would be in effect to hold that the Legislature had abused the power and authority conferred upon it by the Constitution of the state.
 It is, however, the settled rule of construction in this state that all statutes granting to corporations the right of eminent domain, which is an attribute of sovereignty itself, must be strictly construed. Currier v. Marietta & Cincinnati Rd. Co., 11 Ohio St. 228; Atkinson v. M. & C. Rd. Co., 15 Ohio St. 21; Platt v. Pennsylvania Co., 43 Ohio St. 228, 1 N. E. 420; Ravenna v. Pennsylvania Co., 45 Ohio St. 118, 12 N. E. 445.
2. INSURANCE (§ 164*)-POLICY-DESCRIPTION OF PROPERTY-SUFFICIENCY.
The subject of the insurance was described in these words: "On his interest in the lumber in Wabash Elevator No. 4, while on the premises, situated on Middle Ground near the Maumee river, Toledo. It is understood that the building is in process of demolition and said insurance is to cover above described lumber while on the premises."
Held, this advised the underwriters of the nature and extent of his interest as an element of the risk.
[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 347-350; Dec. Dig. § 164.*] 3. INSURANCE (§ 668*)-ACTION ON POLICYQUESTION FOR COURT.
We have reached the conclusion that section 6420, Revised Statutes, applies to pro- Wabash Railroad Company by written contract, Plaintiff's interest was acquired from the ceedings to appropriate brought under favor in which he agreed to demolish the building of section 3283a, Revised Statutes, and that and release the railroad from all damage by fire the judge or court hearing said cause has the caused by it. The underwriters thoroughly inright and authority to determine every pre-wrote the policy. They did not inquire for the spected the risk on the premises before they liminary question incident to the exercise of contract nor ask the plaintiff any questions, the right of eminent domain. and he made no statement about it. A clause
Counsel have urged other assignments of error upon our attention, but the view we have taken of this question disposes of the case; and, because of the fact that the other questions are peculiar to this case only and not of general importance, we have not considered it necessary to pass upon them at this time.
The judgment of the circuit court is reversed; the judgment of the court of insolvency of Hamilton county and the court of common pleas affirming the same are af
SHAUCK, C. J., and JOHNSON, WANAMAKER, NEWMAN, and WILKIN, JJ., con
(88 Ohio St. 269)
ENSEL v. LUMBER INS. CO. OF NEW YORK et al.
(Supreme Court of Ohio. June 27, 1913.)
(Syllabus by the Court.)
1. INSURANCE (§ 668*) - POLICY-TIME OF TAKING EFFECT.
An insurance agent negotiated for the plaintiff, through the underwriters of an insurance company, a policy in that company. A
few months later the underwriters notified the agent that the company would cancel the policy. The agent assented for the plaintiff, but said he would take the usual five days to obtain other insurance. Thereupon the underwriters offered to rewrite the insurance in the defendant com
The plaintiff, through the agent, assented, and a new policy was delivered the same day at two o'clock. The fire occurred at 6 o'clock.
Held, the court properly submitted to the jury the question as to the time the contract of insurance went into effect, and the finding of the jury that it went into effect at the time of
in the policy avoids it, "if the insured conceals any material fact concerning the insurance or any subject thereof."
Held, it was for the court to say whether his failure to mention the release was a material concealment within the terms of the policy. Cent. Dig. .88 1556, 1732-1770; Dec. Dig. § [Ed. Note.-For other cases, see Insurance, 668.*]
4. INSURANCE (§ 603*) — POLICY - CONSTRUC
Another clause of the policy provided that: "If the company shall claim the fire was caused by the act or neglect of any person or corporation, the company shall be subrogated to all right of recovery by the insured for the loss resulting therefrom, and such right shall be assigned to the company by the insured."
Held, a stipulation such as the latter can only be used to work a forfeiture strictissimi juris. That clause being inserted by the insurer for the protection of the insurer is to be construed most strongly against the insurer and in favor of the insured. In view of the facts disclosed in this case, the court could not by way of purely legal construction give the stipulation the effect which the defendant claimed for it and void the policy.
[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 1499; Dec. Dig. § 603.*] 5. INSURANCE (§ 282*)-POLICY-CONSTRUC
Another clause avoids the policy, "if the subject of the insurance be a building on ground not owned by the assured in fee simple." The building was upon the ground described in the policy, but the fee-simple title to the land was not in the plaintiff.
Held, the property insured was not part of the real estate but lumber in a building in process of demolition. Therefore this clause of the policy has no application to this case.
Cent. Dig. §§ 601-635; Dec. Dig. § 282.*] [Ed. Note.-For other cases, see Insurance, 6. INSURANCE (§ 283*) - POLICY - ENFORCE
It also provided that "if the subject of the insurance be or become incumbered by a chattel mortgage the policy shall be void." There was a railroad mortgage by the Wabash company
undischarged at the time it sold the lumber in | date; and at 6 o'clock the building took fire the building to the plaintiff. That mortgage and was consumed. contained the usual proviso that the railroad company might dispose of equipment and material, replacing the same with new, and the company was doing that thing.
Held, the mortgage lien upon this lumber was discharged. For this and other reasons this defense was properly excluded.
[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 636-651; Dec. Dig. § 283.*]
(Additional Syllabus by Editorial Staff.) 7. EVIDENCE (§ 53*) - "PRESUMPTION"-"IN
A "presumption" is a rule which the law makes upon a given state of facts; an "inference" is a conclusion which, by means of data founded upon a common experience, natural reason draws from facts which are proven. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 73; Dec. Dig. § 53.*
For other definitions, see Words and Phrases, vol. 6, pp. 5535-5537; vol. 8, pp. 7761, 7762; vol. 4, p. 3579; vol. 8, p. 7687.]
Error to Circuit Court, Lucas County. Action by one Ensel against the Lumber Insurance Company of New York and others. Judgment was entered for plaintiff in the Court of Common Pleas, and on error the Circuit Court entered judgment for defendants, and plaintiff brings error. Judgment of Circuit Court reversed, and that of Common Pleas affirmed.
Attached to the face of the policy of the Lumber Insurance Company was a typewritten memorandum, called a "rider," as follows: "E. L. Ensel. $1,000 on his interest in the lumber in Wabash Elevator No. 4, and, or while on the premises situated on Middle Ground near Maumee river, Toledo, Lucas county, Ohio. It is understood and agreed that the building is in process of demolition and said insurance is to cover above-described lumber while on the abovedescribed premises, within 1,000 ft. of building."
The printed policy contained the following clauses: 1. "This entire policy shall be void if the insured has concealed or misrepresented in writing or otherwise, any material fact or circumstance concerning this insurance, or the subject thereof." 2. "This entire policy unless otherwise provided by agreement, indorsed hereon or added hereto, shall be void if the subject of insurance be a building on ground not owned by the insured in fee simple; or if the subject of the insurance be personal property and be or become incumbered by a chattel mortgage." 3. "If this company shall claim that the fire was caused by the act or neglect of any person or corporation, private or municipal, this company shall, on payment of the loss, be subrogated to the extent of such payment to all right of recovery by the insured for the loss resulting therefrom, and such right shall be assigned to this company by the insured on receiving such payment."
The plaintiff held a policy of insurance in the Teutonia Fire Insurance Company for $1,000 upon his interest in a frame building known as Wabash Elevator No. 4, in Toledo. By contract in writing he had purchased the material and lumber in the building from the Wabash Railroad Company for $2,000 and agreed to demolish the building. There was a stipulation in the contract that the The record discloses that the Wabash comrailroad company was released from all lia- pany and other companies operated steam bility on account of fire, from negligence, or railroads in the immediate vicinity of the otherwise, while the building was being de- elevator, that the cause of the fire was unmolished. The plaintiff obtained the insur- known, that Ensel had never shown his conance from a Mr. Smith, an insurance agent, tract with the Wabash Railroad Company, who negotiated the policy through the Wel- and that no one had ever asked him for it. les-Bowen Company, agents of the Teutonia The loss was much more than the insurCompany. Before writing the policy, Mr. | ance. Proofs of loss were filed with the Bowen of that firm, with Mr. Smith, made company, which declined to pay, and this a thorough inspection of the risk. About suit was commenced. six months later, on June 24, 1910, Mr. Welles of that firm notified Smith that the Teutonia Company wished to cancel the policy, and he offered to rewrite the insurance in the defendant company. Smith communicated with the plaintiff Ensel by telephone, who assented to the change and said he would return the Teutonia policy. policy. Thereupon Smith told Welles to rewrite the insurance in the Lumber Insurance Company, which he did and delivered the new policy to Smith about 2 o'clock the same day. Proper entries of the transaction were made in the Welles-Bowen Company's books and the defendant company was notified of the issuance of the policy. About one-fourth of the building was reduced to lumber by that
The defendant sets up four defenses: First, a general denial; second, the building was on ground not owned by the plaintiff; third, part of the property was incumbered by a mortgage given by the Wabash Railroad to the Bowling Green Trust Company; fourth, the subrogation clause, that plaintiff by his contract with the Wabash Company released that company, which fact he had not disclosed to to defendant. Plaintiff in reply admitted the provisions of the policy; that the building was not on ground owned in fee simple; but alleged defendant knew that fact and waived that provision and the provision in regard to chattel mortgage, by the rider; and that defendant had full opportunity to know all of the provisions of
ber Insurance Company). Smith, after consulting Ensel: "Go ahead, rewrite the policy and deliver it this afternoon." That was done and the fire occurred four hours later. Counsel for defendant say: "They wished to substitute one policy for another, but intended the new policy should come into force four days later." We think otherwise; the exchange was complete when the new policy was delivered that afternoon at 2 o'clock. The jury so found by their verdict, and the circuit court erred if it meant to reverse that finding.
the contract with the Wabash Railroad; | policy in the Hudson's Underwriters" (Lumand denied any concealment of a material fact. At the close of plaintiff's case, defendant made a motion for a directed verdict, which was renewed at the close of all the testimony and was overruled. Thereupon the defendant requested that the case go to the jury on all the issues, which was refused. The court submitted the first defense, holding the others were not separate defenses. The jury returned a verdict for the plaintiff; a motion for new trial was overruled, and judgment entered. Defendant prosecuted error. The circuit court found the common pleas should have directed a verdict for defendant, and entered judgment accordingly. The plaintiff now prosecutes error to this court.
Ralph S. Holbrook and Claude R. Banker, both of Toledo, for plaintiff in error. Brown, Hahn, Sanger & Froelich and King, Tracy, Chapman & Welles, all of Toledo, for defendants in error.
WILKIN, J. (after stating the facts as above). The counsel for defendant lay down four propositions to support the judgment of the circuit court: (1) The policy never went into effect. (2) The minds of the parties never met upon the subject-matter of the contract of insurance. (3) Part of the property was personalty incumbered by a chattel mortgage, contrary to the provisions of the policy. (4) Part was a building situate on ground not owned in fee simple, contrary to the provisions of the policy.
The evidential facts connected with the negotiation of the insurance are not in dispute. But there is a dispute about the ultimate facts which may be deduced from the proven facts: (1) Are they mere inferences which the judge may draw? (2) Are they legal presumptions which the law makes? (3) What conclusion of law arises from the ultimate facts thus determined?
As is usual in insurance cases, we are confronted with a mass of diverse decisions and doctrines. We would have to write a treatise if we attempted to untangle the confusion and conflict of law presented in the briefs. We have not the time, if we had the inclination, to attempt to harmonize the cases. We shall dispose of this case upon its own intrinsic facts and the legal principles which we deem safe guides to its solution. To that end we shall consider the defendant's four propositions briefly.
 First. Did the policy not go into effect? This is based on the fact that, when Welles notified Smith that the Teutonia Company would cancel its policy, Smith answered that he would accept the notice and take the usual five days to obtain other insurance. If the colloquy had ended there, the Teutonia policy would have been current when the fire occurred some hours later. But the dia
[2, 3] Second. Did the minds of the parties meet upon the subject-matter of the insurance? Counsel for defendant say the subject-matter is the risk of loss by fire which the underwriter agrees to take. He quotes Richards on Insurance, page 118: "And if, at the time of closing the contract, the one party has knowledge of facts material to the risk which, with or without design, he fails to disclose to the other party, then the parties are not contracting with reference to the same chance. There is no meeting of the minds upon the same essential subjectmatter of their contract." The author supports that text by an extract from Lorá Mansfield's decision in the leading case of Carter v. Boehm, 3 Burr. 1905: "The special facts upon which the contingent chance is to be computed lie most commonly in the knowledge of the insured only. The underwriter trusts to his representations, and proceeds upon confidence that he does not keep back any circumstance in his knowledge to mislead the underwriter into a belief that the circumstance does not exist, and induce him to estimate the risk as if it [the circumstance] did not exist. The keeping back such circumstance is a fraud, and therefore the policy is void."
The circumstance alleged to have been withheld is the clause in Ensel's bill of sale from the Wabash Company releasing the company "from all liability on account of fire to said elevator while being wrecked." Was this release a material element of the risk about which the parties were negotiating when they arranged to exchange the Teutonia for the Hudson's Underwriters policy? If it became material at all, it did so only as a feature, not of the risk but of the contract; for if it became an element of the contract of indemnity it did so not as affecting the risk but only as affecting the contract of subrogation. That is to say, the policy contained two contracts: One to indemnify Ensel for loss by fire; the other to subrogate the company to any right he might have against anybody else to recover for the same loss by fire "from negligence or otherwise."
Now, it is not contended by the defendant that these obligations were reciprocal in the sense that the breach of the latter discharg