Opinion of the Court. property is materially depreciated by reason of the obstruction of the street complained of. In this error proceeding this finding of fact is conclusive, nor is any claim made that it is not sustained by evidence. The only power and authority this court has is to determine whether the law has been properly applied to the state of facts so found by the circuit court. It is clear from this finding that the injury that would result to these plaintiffs from the construction of these tracks does not differ from the injury and inconvenience suffered by the public in degree only, but does substantially differ in kind in that the access to their private property will be seriously impaired and interfered with, and the value of the property itself materially depreciated, and it therefore necessarily follows that plaintiffs are entitled to injunction restraining the defendant in error from constructing and maintaining these tracks until it has in a proper proceedings appropriated the plaintiffs' easement in the street and compensated them for the damages to their private property. Railway Company v. Lawrence, 38 Ohio St., 41. The judgment of the circuit court in so far as it refused the plaintiff in error an injunction against the laying of these railroad tracks across Ludlow street is reversed, and this court proceeding to render the judgment that the circuit court should have rendered upon the facts found by it, the Pittsburg, Cincinnati, Chicago and St. Louis Railway Company, defendant in error, is hereby enjoined from laying or constructing the additional tracks across Ludlow street complained of in plaintiff's petition. And it is hereby ordered Syllabus. that said defendant in error remove all such tracks that it may have placed across said street since the commencement of this action, and the judgment of the circuit court in all other respects is hereby affirmed. Judgment accordingly. SPEAR, C. J., SHAUCK, PRICE and JOHNSON, JJ., concur. GERMAN AMERICAN INSURANCE COMPANY V. MCBEE ET AL. Building totally destroyed-Except foundation-Settlement of loss by insurers-Section 3643, Revised Statutes-Insurance of cellar not prohibited-By Section 3691, Revised Statutes-Cellar must be insured for specific sum-Section 3643, Revised Statutes, may apply-In case of more than one policy. 1. Where a building or structure, is totally destroyed except the foundation walls, the fact that the description in an insurance policy, covering the property, includes the foundation, does not prevent the application of Section 3643, Revised Statutes, in the settlement of the loss. 2. Section 3691, Revised Statutes, does not prohibit the insurance of the cellar and foundation walls under a building or structure, but does provide, that such walls shall not be included or considered a part of the "building or structure" in settling losses, and where the building or structure is also insured in the same policy, the cellar and foundation walls must be insured for a specific sum, and described separately, from the building or structure. 3. Where a building or structure is totally destroyed by fire, the fact that there is more than one policy of insurance on the Statement of the Case. property, does not prevent the application of Section 3643, Revised Statutes, in the settlement of the loss. (No. 12086-Decided December 12, 1911.) ERROR to the Circuit Court of Hamilton county. A policy of insurance was issued by plaintiff in error November 30, 1906, on the dwelling house, smoke house, chicken house and coal house of defendants in error for sums aggregating $2,080. Suit was brought in the common pleas court of Hamilton county to recover on the policy for the total loss of the buildings by fire. The petition averred that the plaintiffs below had complied with all the terms and conditions of the policy. There were three defenses in the answer, the first of which was substantially a denial of the total loss of the buildings, and that the foundation of the dwelling house was only slightly damaged. The second defense alleged that the foundation of the dwelling was slightly damaged, but not destroyed, and sets out various provisions of the policy for ascertaining the loss by appraisement in the event of disagreement between the parties; that there was disagreement as to the amount of the loss and that the company demanded an appraisement which the plaintiff refused. The purpose of this defense was that even if it should appear that there had been a total destruction of the property except the foundation under the dwelling, nevertheless the company would be entitled to an appraisement for the reason that the foundation is insurable, although by statute it is Statement of the Case. made no part of the building, and that therefore, the valued policy law, Section 3643, Revised Statutes, would not apply. The third defense sets out certain provisions of the policy as to concealments and misrepresentations, and avers that plaintiffs did conceal certain matters referred to when the policy was issued, which if they had not concealed would have precluded the issuance of the policy. An amendment was filed to the second defense which is, in substance, that the policy sued on contained a provision that the company should not be liable under the policy for a greater part of any loss on the property than the amount thereby insured should bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers; that at the time of the loss the plaintiffs had other insurance on the dwelling house in the sum of $2,000, and that the cash value of the dwelling at the time of the fire did not exceed $2,000. A reply was filed which in effect denied generally the defenses set out in the answer. A demurrer was filed and sustained to the amendment to the second defense of the answer. On the trial of the case in the common pleas court the jury returned a verdict for the full amount of the policy as for a total destruction of the property insured. Judgment was entered on this verdict and the circuit court on error affirmed this judgment. Error is now prosecuted here to reverse the judgments of the courts below. Exceptions were reserved to the admission and to the rejection of evidence and to the refusal of the court to give certain charges requested by the com Argument for Plaintiff in Error. pany, and to the charge of the court which will be noticed in the opinion. Mr. J. W. Mooney, for plaintiff in error. This court has had occasion to define what constitutes a total loss to a building or structure under Section 3643, Revised Statutes, in the case of Insurance Co. v. Drackett, 63 Ohio St., 41. The record in the case at bar shows that the loss and damage to the property has never been ascertained by appraisement as provided by the provisions of the policy. In fact, it is conceded that the plaintiff in error demanded of the defendants in error that the loss and damage be ascertained by appraisement under the provisions of the policy, and that the defendants in error refused to ascertain the loss and damage by appraisement. This made the appraisal provisions of the policy, if the plaintiff in error was entitled to an appraisement, a condition precedent, and the defendants in error could not recover without complying with the provisions of the policy, or showing a legal excuse therefor. Graham v. Ins. Co., 75 Ohio St., 374; Insurance Co. v. Carnahan, 63 Ohio St., 258. We contend that the valued policy law (Section 3643, Revised Statutes) applies only where the policy of insurance covers a building or structure. Where the policy covers a building or structure and other property in a gross or blanket sum, the valued policy law does not apply, and where there has been a disagreement as to the amount of loss an appraisement must be had. Section 3643, Revised Statutes, applies only to applies only to building or structure. |