people famous for fertility in that regard, especially with respect to rapid transportation, the growth and change of location of population and the teachings of experience, are apt to make such modifications necessary to accomplish what was intended in the creation of agencies of this kind. It is the nature of the use, not the motive power, which determines whether the road belongs to one class or the other. When a road is laid in a street, on the surface of the street, because it is a street and to facilitate the use of the street by the public, it is a street railroad whatever the means used to propel cars over it." The circuit court of Hamilton county in 1888, in the case of the Mount Adams & Eden Park Inclined Railway 2 Circ. Dec., 240 Howard Winslow and others, had occasion to consider the right to operate an electric system of motive power on the lines of street railroads owned by that company. In that case the court found the facts to be that as an essential part of the system, poles eleven inches in diameter at the bottom, and twenty-seven feet in height, were placed about 100 feet apart on each side of the street and opposite to each other, close to the curbstone; a single wire is stretched on each side of the street from the top of one pole to the top of another on the same side, and from the top of each of said poles a wire extends to the top of the pole on the opposite side of the street. The object of the wire across the street is to support the two other wires, one of which runs parallel with and immediately above each of the two tracks on which the street cars of the plaintiff, propelled by horse power, have been running for several years past." It will be seen that the general plan of construction in that case is very like that proposed to be applied here. "The tracks of the street railroad continue in the condition in which they have been for several years past; the only addition or change which has been made to adapt it to the use of the electric motor being the poles and wires before referred to. If the structure of the plaintiff in the street so long in use is not an invasion of the rights of the defendants, (though the same must in the nature of things be some obstruction to the highway, but largely compensated in a populous city by the advan tages of this mode of travel,) it is difficult to see why the mere placing of a pole of this size on the margin of the sidewalk, at once and necessarily gives to the owner of the adjacent premises the right to prevent it, or have it removed. The sidewalk is only a part of the way, and is to be dealt with as such, and it seems to us that a structure erected thereon stands on the same principle as those in the center of the street. And why should the planting of the pole in this instance be held, on the evidence, to entail any special damages to the defendants? It is not objected that it is unsightly in appearance, or unsuited to the purpose for which it is used; all that is claimed is that it impedes the access to defendants' premises, and that the electric system in use is unsafe. We have found as a fact that neither of these objections is well founded. The margins of the sidewalks in cities for centuries past has been appropriated for the placing of shade trees, public lamp posts, hitching posts and similar structures, and when they are suitably placed, and at sufficient intervals, cannot, we think, be any obstruction to the access to the premises adjacent thereto, or be said to impose new burdens upon the land, the right to impose which has not been acquired by the public. * * *But it (the public highway) was acquired that the public might travel over the same, on foot or horseback or in vehicles of variou kinds, and as we have before stated, we think it is the law of this state that the use of cars drawn by horses on rails permanently placed in the roadway is not to be considered of itself an unlawful or improper change of the use of the highway, or as imposing an additional burden upon the adjacent land. And if this be so, then the use of it in substantially the same way, but with a different motive power, would not alter the case. It is still a mode of travel over the same highway." The Cincinnati case and the one now before the court differ in this, that in that case the action was brought to compel the removal of posts, wires, etc., already in use, while this case is brought to prevent their erection. But the circuit court put their decision upon the broad ground of the right to prevent as well as remove the alleged obstructions or burdens. We have quoted the Cincinnati case at some length since it throws considerable light upon the questions here involved. We may now recur to our question. In the case before us-will the proposed change, if made, constitute a new burden or servitude upon the street? It is urged that the operating of cars by electricity is dangerous, and dangerous in that electricity is a dangerous agency to employ. The proof clearly establishes the opposite, that it is safe, suitable and practicable. The tracks are in no manner changed. The cars employed in point of size and appearance are not substantially different. Is more of the traveled and paved roadway occupied by the electric system than when horse power is used? No, but is lessened by the removal of several hundred horses from the street. It is claimed that the speed, twelve miles an hour as proposed, will be a dangerous rate on a street the width of Prospect street. This is a matter within the control of the council, with full power to limit the rate of speed to a suitable and safe rate, and one consistent with the uses of a public highway. The court would hardly be warranted in assuming that a dangerous and unlawful or unreasonable rate of speed will be authorized or permitted. That the cars operated by the electric motor are in perfect and absolute control of the operator is sustained by the proof, as well as by our common observation. That these cars can be stopped quickly, or moved forward or backward at a slow or rapid rate is apparent. It is claimed further that these poles or iron posts and the wires constitute an obstruction to abutting property; that they are unsightly and a burden upon the street. It is clear that they add nothing to the beauty of a street, but that they amount to a burden or obstruction seems to us more fancied than real. Certainly the proof does not justify such conclusion. One of these poles is no more of an obstruction than a lamp post or an electric light post. If the Cincinnati court found that poles eleven inches in diameter and twenty-seven feet high constituted no obstruction or burden, we would be entirely safe in saying that poles only six inches in diameter and twenty-five feet high do not. It can not be said in seriousness that these poles and wires will obstruct the light or air from the premises of the plaintiffs, or will interfere with ingress and egress to their premises, for it is not pretended or believed that the defendant will so place these poles as to obstruct driveways or other places designed for passageways to and from the street. It is urged also that the electric motor frightens horses and makes it unsafe to drive along the street in carriages or other vehicles. This was undoubtedly true in the beginning, in the first occupancy of the streets in this city, and it is likely such would be the effect on Prospect street for a brief period of time. But it can not be doubted from the facts sub mitted, as well as from our common observation, that this difficulty soon disappears and horses soon become accustomed to the change. In fact, these motor cars are probably no more cause of alarm to horses than were the more primitive horse cars when first introduced into the public highWhether a particular structure authorized by public authority is consistent with the uses of a street, as a street, must be largely a question of fact, depending upon the nature and character of the structure authorized. The true distinction, we think, must be found, not in the motive power of the railway, but it depends rather upon the question whether the railway constitutes a thoroughfare, or whether on the other hand it is a mere local convenience consistent with the uses of a street thoroughfare. While the purpose of streets is primarily for public travel, yet in populous districts it has been the immemorial custom to employ them for other purposes of a public nature, which though having little or no connection with the uses or improvements of the street as a highway, are not inconsistent with such use. Lewis on Eminent Domain, sec. 126. We are of the opinion that the use here contemplated is a consistent use; that it is not in the nature of an original grant imposing new and greater burdens for which these plaintiffs may have compensation, and in so holding we think we are in accord with the judicial thought in this state, and do no violence to the justice or judgment of the constitution. Temporary injunction refused. Burke & Ingersolls, for plaintiffs. J. M. Jones, R. P. Ranney, Richard Bacon, for defendant. 1 98 FRAUDULENT CONVEYANCES. [Superior Court of Cincinnati. General Term, 1889.] PIERCE V. WHITE. Where, in a bill of exceptions, an admission is made by counsel for one party, the meaning and effect of such admission is to be determined from the language used in connection with all the circumstances under which it is made, including the other evidence adduced by that party. The defendant in an attachment proceeding based on her alleged conveyance of real estate with intent to hinder and defraud creditors, admitted through her counsel that she was insolvent, and that the deed of the real estate complained of was "without consideration," and then offered evidence to show that the deed was executed with the intention of receiving full consideration from the grantee, and was recorded by mistake before the grantee had any knowledge of its execution, and that, upon learning of the deed. the grantee refused to accept it, or to pay the consideration mentioned in the deed. Held: 1. That the admission must be construed to mean that no consideration passed, because the deed never took effect, rather than that the deed, on its face for value, was in fact voluntary. 2. That it was competent to ask the defendant whether she intended, by such conveyance, to put her property beyond the reach of her creditors. 3. That there is no conclusive presumption of fraud arising from an intent on defendant's part to turn real estate into money. 4. That a deed, unaccepted by the grantee, derives no force as a deed from being recorded. 5. That evidence of an attempt to convey by a deed which never took effect, does not sustain an allegation in an affidavit for attachment, that defendant has disposed of and conveyed her property, and that, in the absence of amendment, such variance requires the dissolution of the attachment This is a petition in error to an order of the special term discharging attachments in two cases between the same parties, and involving, so far as the ground for attachment was concerned, the same facts. The actions below were on promissory notes signed by Ambrose White, and endorsed by his mother, Harriet White. The attachments were issued on affidavits filed by the plaintiffs, alleging that Harriet White had disposed of her property with fraudulent intent to hinder, delay and defraud her creditors. In one suit the attachment was issued on a debt before due, under section 5564. In the other, the attachment was issued on the same ground, under section 5521. The motion below was heard on oral evidence. The bill of exceptions does not purport to contain all the evidence, and of course, we are unable to consider the case on the weight of the evidence. But counsel for plaintiffs rely upon certain admissions of the defendants in the bill of exceptions, which they claim, entitled them to an order overruling the motion, whatever the other evidence was, for they say, having admitted certain facts in open court, they could not be permitted to contradict such admissions. The admissions in effect were, that in March, 1888, Harriet White was the owner of four different lots in this county, and that this was all the property she had; that two of these lots she conveyed on the twenty-second of March, 1888, to the Commercial Bank for $26,000; and the other two, she executed a deed for, to Peter A. White, for the recited consideration of $12,000; that at the time of the making of the latter deed she was insolvent by reason of debts arising from accommodation endorsements for her son, Ambrose White, and that this latter deed was without consideration. It appears from the evidence in the case, that the deed to White, which is made the ground for attachment, never took effect, because it was never delivered to and was never accepted by the grantee named therein. Moreover the evidence discloses, that when made, it was expected, that upon delivery to the grantee he would pay the purchase price mentioned in the deed. The admission, therefore, that the deed to White was without consideration, must be taken to mean that nothing in fact was paid, because it never took effect, and not that it was a deed on its face for value, but as between the parties voluntary. In this view the admission amounts only to this, that Harriet White wished to sell her property, and made a deed to a person whom she expected to buy the property for the price named, but who declined to take the deed and pay the price. Clearly, from an attempt to sell property by an insolvent, there is no necessary presumption of an intent to defraud creditors, and we cannot therefore say that an admission of such an attempt required the court to sustain the attachment, without regard to the other evidence in the case. The next error complained of is in the court's permitting the following questions over plaintiff's objection. Q State what, if any, intention you had at the time you signed that deed to Peter A. White, as to the disposition of that property or the proceeds of the sale of it? A. It was given up to enable all to get as much as they could; that was my understanding of it. Q. State whether or not in signing that deed you had an intention to place the property beyond the reach of your creditors? A. I had not the slightest intention of that kind. We think both of the questions competent. The intent of Mrs. White in making the deed was in issue, and could be testified to by her. Coal Co. v. Davenport, 37 O. S.. 194, 196. Superior Court of Cincinnati. 98 The first question was neither leading, nor did it involve a conclusion of law. The second question was leading, but whether a leading question shall be put, is within the discretion of the trial court. That a person intends to put his property where his creditors cannot reach it, is a fact which does not involve a conclusion of law. Whether what is done has any such effect, may be a question of law; but the intention to produce that effect, seems to us to be a fact involving no conclusion of law by the witness interrogated with reference to its existence in his mind. Error is also claimed in the refusal of the court to permit questions to be asked of witnesses in rebutal, whether Ambrose White had been indicted for embezzlement of the proceeds of goods consigned to him on commission. This evidence was offerred to show a motive for Ambrose White to use the proceeds of the sale of the property attached to pay debts arising from these criminal transactions. No offer was made to show that Mrs. White had any knowledge, either of his extremity or of such an intent. If he had used the money for such purpose, it would simply have been a breach of trust on his part to his mother therefore, and a motive for a breach of trust on his part toward her could hardly be evidence of her intent in making the deed. The court also refused to admit certain admissions of Ambrose White, as to other fraudulent transactions of his, in a deposition taken in another case. On the issue of this motion, the parties were Mrs. White and the plaintiffs; certainly Mrs. White could not be affected by admissions of Ambrose White in another case. Finally, the attachment was discharged on the ground that Mrs. White had not disposed of her property with intent to hinder, delay or defraud creditors, which was the ground of the attachment. There was no evidence at all to sustain this ground. All the evidence that plaintiffs adduced tended to show only that she was about to dispose of her property, and failed to do so. Though the deed to Peter A. White was recorded, it never took effect. Younge v. Guilbean, 3 Wallace, 636. There was no offer to amend the affidavit in attachment to conform to the proof, by alleging that she was about to dispose of her property, and no leave of court for that purpose asked. The evidence does not tend to sustain the allegation of the affidavit, and without regard to the question already considered, the action of the court below must be affirmed on this ground alone. PECK and MOORE, JJ., concur. Black and Rockhold and J. J. Glidden, for plaintiff in error. |