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PECK, J.

The error complained of consists in the refusal of the court below to grant an injunction restraining the defendant from disposing of a certain patent-right of which he is the owner. The ground upon which the injunction was claimed was, that defendant had entered into a written contract with the plaintiff, whereby the latter was to form a company for the purpose of introducing and selling defendant's patented device, for which service plaintiff was to be paid a certain per cent, of the stock of any company formed, and of any money received. No company had been formed, but plaintiff alleged that he was proceeding in good faith to do so, when defendant entered into some sort of an arrangement with other persons, whereby the patent-riglıts were to be transferred to them, a proceeding which plaintiff claims to be in violation of the rights secured to him by contract, and which, if permitted, will prevent him from performing his part of the contract, and securing the compensation stipulated to be paid for that service.

The basis of plaintiff's claim appears to be that the contract confers upon him the sole right of organizing the proposed company for a reasonable time after the date of the contract, and that he is therelore entitled to have the defendant restrained from doing anything which will interfere with the performance of the contract on his part.

After a careful consideration of the contract, we conclude that it does not confer upon plaintiff the exclusive right to control the disposition of the patent, or to organize a company for its introduction. The provision simply is that he “shall manage and negotiate the sale of the patents or certain interests in them, or use his best efforts to organize a company."

This is the language of the contract most favorable to plaintiff's claim, and in our judgment it does not preclude defendant from negotiating sales or organizing companies for the same purpose.

Plaintiff further contends that the company which defendant proposes to organize is not gotten up in good faith, and has no substantial foundation, and that if defendant is permitted to transfer the patentrights to it, the plaintiff will be deprived of all the benefits of his contract, even if the per cent, of the capital stock therein stipulated for be delivered to him. On this point the evidence is conflicting, and leaves the matter in much doubt, and in that state of the case we do not think it proper to interfere by injunction. The remedy here sought is akin to that granted in Lumley v. Wagner, 1 D. G. M. & G., 604, and Lacy v. Heuck, 9 Ohio Dec. Re., 347, where persons who had contracted to perform certain personal services at a particular time and place, were enjoined from performing such services for any other person than the plaintiff at that time.

An examination of the cases herein that sort of a remedy has been granted, will disclose the fact that it has been resorted to only where the contract rights of the plaintiff were clear, and the proposed breach undisputed. It is hardly probable that such a remedy would be granted in any case where the contract or the intended breach is in doubt. In such cases a court of equity would leave the parties to seek their remedies at law, and that, we think, was the proper course in this case. The temporary injunction granted in general term is dissolved, and the judg. ment of the court at special term affirmed.

Taft and MOORE, JJ., concur.
C. W. Merrill, for plaintiff.
T. W. Herron, for defendant.

194

Corry v. City of Cincinnati.

ANNEXATION OF TERRITORY-GRADE OF STREETS.

194

[Superior Court of Cincinnati, February 15, 1888.)

CATHERINE CORRY V. CINCINNATI (City.) 1. Where a village had been annexed to a city, and as one of the terms of the annex

ation agreement it was stipulated "That all grades of streets heretofore established within, and by the proper authority of said village shall be respected, but the same may be altered with the consent of the property holders, or upon payment of damages that may be agreed upon, or as ascertained by law: "Held, that a municipal corporation cannot bind itself by an agreement not to change an established grade, and that the only effect of the annexation agreement was to put the grades established by the village authorities before the annexation, upon the same legal basis as grades established by the city authorities, and sub

ject to change in like manner. 2. The act of April 25, 1885, (82 L. 156), authorized the Board of Public Affairs of

Cincinnati to change established grades of streets of said city, without a petition from abutting owners, where the same are improved under that act, and it

makes no difference that such change may be injurious to abutting property. 8. It is not necessary that there should be a petition of the owners of three-fourths

of the property abutting on a street, to authorize an assessment for the improvement thereof, payable in installments, or the issue of bonds in anticipation of

such assessinent. 4. Assessments levied to pay the cost of improvements, of streets improved under

the act of April 25, 1885, (82 L. 156), may include one-half the damages paid to

abutting owners, for injuries to property caused by the improvement. 8. To show that a grade has been long established, and improved to by private

owners and public authorities, and that a change thereof will cause daniage to public and private property, is not sufficient to show that such change is unreasonable or an abuse of corporate power. It should be shown that such change is unreasonable with regard to the use of the street as a highway, before a court of equity will interfere under the statutes sec. 1777, to prevent the change

as an abuse of corporate power. PECK, J.

In one of these cases Mrs. Corry sues as a property holder to enjoin the improvement of Vine street, upon which she alleges she owns abut. ting property. In the other she alleges that she requested the city solicitor in writing to begin the action; that the solicitor declined, and that shie commenced the action thereupon on behalf of the city, as a tax payer, in pursuance of the provisions of the statute.

The allegations of the two petitions are very much the same, and I shall speak of them both together without attempting to deal with them separately. The object of both petitions is to enjoin the proposed improvement of Vine street, upon which the grade is to be changed, the change at one place involving a cut of as much as nine feet.

The plaintiff owns property abutting on a portion of the street proposed to be improved, and it does not appear that she filed any claim for damages, nor is it alleged that she was not notified of the intention to improve the street. It is alleged that the city commenced a proceeding against a number of property holders there, and that there was an assessment of damages. The amount of the verdicts are set forth in the petition, and some of the proceedings in connection therewith, and it appears that Mrs. Corry was not a party to that action, and no assessment of damages in her favor has been made.

The first ground upon which it is sought to enjoin this improvement is that, by virtue of the terms under which that territory where the improvement is proposed to be made was annexed to the city, the power

Superior Court of Cincinnati.

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to change this grade without the consent of the property owners, or at least of a majority of them, does not exist, the street having been improved to an established grade prior to the annexation. The stipulations in the agreement made between the officers of the village, which was annexed to the city, and the city council, are set forth in the petition, from which it appears that it was agreed “That all the grades of streets heretofore established within and by the proper authority of said village shall be respected, but the same may be altered with the consent of the property holders, or on payment of damages that may be agreed upon or ascertained by law;" and the plaintiff contends that the property holders have not consented, and that she, at least, has not been paid any damages under the provisions of this agreement.

The ultimate control of all the highways in the state rests with the state itself, to be regulated by the legislature, and it is a function of government; but it is a power which the state may, and does, delegate to subordinate departments of government, to county commissioners, to township trustees and municipal authorities. All these authorities act in pursuance of this delegated power from the state, and yet they are all exercising powers of government in ordering the grading and improvement of highways.

In the case of Goszler v. Georgetown, decided by Chief Justice Marshall, 6 Wheaton, 593, it was held that an ordinance providing for the improvement and grading of a street was an act of legislation, and that the corporation of Georgetown could not bind itself by an agreement with reference to grades.

If this annexation agreement is urged on the ground that the city cannot change the grade without the consent of the property holders, it cannot avail the plaintiff, because it was without the power of the city to make such an agreement; and if it is urged on the ground that the city should pay damages to the plaintiff before making the change, it is evident that such an agreement must be construed with reference to the laws on the subject, and she would be bound by the same rules as to making claims and ascertaining damages, as other people would with respect to established grades. In other words, the whole substance and effect of that portion of the agreement, so far as I am able to make it out, is to put these grades on the footing of grades established by the city, and to put people abutting on them, in the position of people owning property abutting upon an established grade. And as it is not alleged that she has filed a claim, as required by the statute of persons seeking damages by reason of a change of grade, she is not in a position to make this complaint.

It is alleged that it is proposed to change the grade without any petition of the property holders. The grade being regarded as one established, it is urged that sec. 2101, forbidding such change without petition, applies: and that would undoubtedly be the case, if it were not for the act passed April 25, 1885 (82 Ohio L., 156), in which it is provided that, “ In cities of the first grade of the first class, the board of public works of such city shall have authority to cause any of the streets, avenues or highways of said city to be improved with granite block, asphalt pavement, or other material, and the method of procedure in such cases shall be as follows:” Then it goes on to specify the steps that shall be taken by the board in providing for any such improvement; and among other powers conferred upon the board, is this :

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Corry v. City of Cincinnati.

“Said board of public works shall have full and final authority in any such improvement, to make sucli change or changes in the grade of any streets, avenues or highways to be so improved, as it may be necessary to best conform the same to such contemplated improvement, and such change of grade shall be published with the advertisement pro vided for in sec, 2304.”

And section three also provides that,

"The owner of a lot or of land bounding or abutting upon any such improvement, shall file his claim for damages as provided in sec. 2315, or be barred, as therein provided, from filing a claim or from receiving damages.

"And all other questions pertaining to such claims for damages and assessments of, or compensation for same, shall be governed by the provisions of law not applicable to like claims."

This, upon its face, would seem to give to the board of public works full authority to make such change as they deem necessary. The act has heen construed by the general term of this court, in a case of Sheer v. City of Cincinnati, 9 Ohio Dec. Re., 477, in which it was held that it is constitutional, and that it authorizes the board of public works to take all necessary steps in the making of an improvement, and the levying of the assessment, without reference to council, so that whatever power it has on the subject of change of grade, would seem to be a power to be exercised by this board independent of council. But an ingenious argument is made on the language of this act. It is argued that power to change the grade, is only such as the board may deem necessary to best conform the same to such contemplated improvement, and the words granting the power to“ include in said improvement, such reconstruction as it may deem necessary,” are dwelt upon. The claim being that the purpose of this act is simply to authorize a repaving of an established street, and that the change of grade which the board may make, is only such as is pecessary to conform to the new paving, and may extend but little, if any, beyond the curb. If the section stood alone, that construction might be correct; but it is immediately followed by a section which provides for the filing of claims and the assessment of damages in behalf of the property holders, and when we take that in connection with the broad language conferring the power, "shall have full and final authority in such improvement to make such change or changes in the grades of any streets, avenues or highways to be improved, as it may deem necessary to best conform the same to such contemplated improvement," it clearly appears that the power given to the board was not intended to be restricted within such narrow limits. It was evidently contemplated that the board should have power to make changes of grade affecting the property of abutting owners, while a change of grade merely extending to the curb, would hardly have such effect. The legislative mind was directed to the fact that abutting owners might be damaged by these improvements, and the method in which they shall file their claims and the damages shall be ascertained, is provided; and therefore it follows, by necessary implication, that it was the intention to confer a power to make changes of grade, such as might cause damage.

It is also contended that the corporation proposes to make an assessment payable in installments, and issue bonds in anticipation thereof without a petition of three-fourths of the property holders, as provided in sec. 2272 of the Rev. Stat., where it is provided that “In cities of the

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194

first grade of the first class, when a petition, subscrided by three-fourths an interest of the owners of property abutting upon any street or highway of any description, is regularly presented to the council for the purpose, the cost of any improvement of such street, or highway, may be assessed and collected in equal annual installments, proportioned to the assessment, in a mauner to be indicated in the petition, or it not so indicated, then in the manner which may be fixed by council; and the interest on any bonds for the improvement by the corporation, shall be assessed, together with the annual installments herein provided for, upon the property so improved; but where a lot or land of one who did not subscribe the petition if assessed, such assessment shall not exceed twenty-five per cent. of the value of his lot or land, after the improvement is made.” This section, or rather, the provisions which I have read of this section, were first incorporated into the statutes in the year 1876, 73 Laws, 171, and the purpose of it was not, as will be seen by an examination of the statutes as they then stood, to give the city power to make assessments in installments, or to issue bonds therefor, but the purpose of it was to provide for an assessment which might exceed twenty-five per cent. of ihe value of the abutting property. The statutes as they then stood, and as they have been ever since the adoption of the municipal code in 1869, authorized the city to make an assessment in annual installments, and to issue bonds for that purpose. Section 2264, containing the power, was an original section of the municipal code of 1869, and sec. 2704, contains the power to issue bonds, and that power had been exercised under these various sections by various inunicipalities in the state before the passage of this sec. 2272.

The case of Steese v. Oviatt, 24 Ohio St., 248, was decided before the adoption of this section, which it is now claimed is necessary to be invoked in order to give the power, and it was there held, that interest on bonds issued to cover as assessment, payable in installments, might be included in the assessment; which shows that the Supreme Court recognized the existence of the power at that time. So that it is not necessary that there should be a three-fourth petition, to authorize the city to make an assessment in installments, or to issue bonds in anticipation of such assessment.

Then it is complained that the city proposes to include in the assessment one-half of the damages which were assessed in favor of the property holders, the amount of which is set out in the petition.

Section 2284 provides, “What shall be estimated as cost of improvement. The cost of any improvement contemplated in this chapter, shall include the purchase money of real estate, or of any interest therein, where the same lias been acquired by purchase, or the value thereof as found by the jury, where the same has been appropriated, the costs and expenses of the proceeding, the damages assessed in favor of any one of the adjoining lands, the costs and expenses of the assessment, the expense of the preliminary and other surveys, and of printing publishing the notices and ordinances required, including notice of assessment, and other necessary expenditure, and the cost of construction."

Now, while this act of 1895 is an act complete in itself, in that it authorizes the board of public works to make such improvement, and levy assessments therefor; yet it is an act supplementary to sec. 2293 of the Rev. Stat., and it is obvious that in many particulars it can not be construed without a reference to the other sections of the statutes on the same subject, as on this subject there is nothing that prescribes what are

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