
    City of Fostoria v. Fox. Fox v. City of Fostoria.
    
      Action for injury to land— Where action to be brought — Section 5081 Revised Statutes — Summons may issue to other county, when— Section 5088, Revised Statutes — Reversal of judgment.
    
    1. An action for consequential injuries to land, or, a suit for a mandatory injunction requii’ing the defendant to abate a nuisance on his own land, causing injury to the land of the plaintiff, is, under our code, not local, but transitory in character; and, under section 5031, Revised Statutes, must be brought in the county where the defendant resides, or may be summoned.
    2. A city partly situated in two counties has its situs in the county where its municipal offices and government are located; and must, when the action is not local, be sued in that county.
    3. Under section 5038, Revised Statutes, to warrant the issuing of a summons in one county to be served- by the sheriff of another, on a defendant therein, the suit -must have been properly brought in the county where the summons was issued; that is, must either be local in character, or have been properly commenced against some one of the defendants.
    4. A judgment rendered in an action in favor of a defendant in which the court had jurisdiction of the subject-matter, but not of the person of the defendant, is not erroneous, although . the defendant made a timely objection and reserved an exception to the ruling of the court, and might, for this reason» have caused a judgment against him to be reversed.
    (Decided May 9, 1899.)
    Error in each case to the Circuit Court of Hancock county.
    
      J. M. Bever, City Solicitor and J. A. <& E. V. Bope, for plaintiff in error, City of Fostoria, (City of Fostoria v. Fox.) v
    Section 5038, we contend, refers solely and makes provision only for the issuing of summons to foreign counties for non-resident co-defendants where service has been made in the county where suit is instituted, upon a defendant having a real and substantial interest adverse to plaintiff in the subject of the action. Allen v. Miller, 11 Ohio St., 374.
    Section 5044 refers to and provides for the method or manner of service and upon whom it may be made. So that we are r.elegated to section 5026 and upon the interpretation of this section depends the solution of the question of jurisdiction of this case.
    If situated in Hancock county, then when the clerk issued his summons in this case, it should have been directed to the sheriff of that county and by him served within the county. This we claim is the clear and necessary construction and intendment of section 5026. It must be the county in which the corporation is situate and in which process may be served. But, as found by the court, summons was not and could not be issued to the sheriff of, or served in Hancock county.
    And it would necessitate legislative action and authority before suit could be commenced in a county against a municipal corporation in another county and summons issued to and served in that county. Directors, etc. v. City of Toledo, 15 Ohio St., 409.
    But sections 5072 to 5029 provide for venue of actions against various corporations, and then section 5031 provides that every other action must be brought in the county in which the defendants reside or may be summoned. Thompson v. Massie, 41 Ohio St., 317.
    For in the case at bar the action and remedy sought are personal, and personal in their application. Purely in personam, nothing in rem. . Primarily it is for injunction and secondarily for damages, both personal in their nature and application, and the parties must be subject to the jurisdiction of the court and jurisdiction acquired by personal service within the county within which the suit is instituted.
    It must be admitted that under section 2407 the city could have taken possession of the water rights and easements on Fox’s land, and no doubt had injury or damage been anticipated, would hare done so by proceedings to appropriate.
    If now, for the purpose of this branch of our argument, we concede that the injury claimed by ■Fox has unexpectedly resulted, then the city is in possession of the water right without agreement, otherwise not. But if so in possession, the statute gives to Mr. Fox a full and adequate remedy open to him. Section 6448, Revised Statutes, provides the remedy to the land owner when a corporation is in possession without appropriation and compensation paid, or written agreement. City of Logansport v. Uhl, 50 Am. Rep., 116.
    Injunction will not issue when the relief sought is disproportionate to the nature and extent of the injury sustained. Ammerman v. Dean, 23 Am. State Rep., 584.
    Injunction will not be granted to restrain a great public work. Steward v. R. R. Co., 14 Ohio St., 358.
    The owner of lands through which a stream runs is entitled to the continuance of its natural flow, subject to the rights of eminent domain, and any one impairing his right is liable in damages, but not to injunction. A clear distinction is made between private and public corporations exercising governmental powers; the exclusive right to a stream is qualified; a lower riparian owner, particularly when a public corporation, may back water, and is liable only when the injury is clear and specific, and then the remedy is at law for damages. That the lower riparian owner may not back water is not a universal or absolute rule but is subject to qualification. Ten Eck v. Canal Co., 37 Am. Dec., 233; Garrett v. McKee, 44 Am. Dec., 263.
    When plaintiff’s land bordering on a stream was liable to overflow during winter freshets, his application for injunction to restrain the building of a dam in the stream should be denied since it cannot be inferred that the damage from the overflow would be augmented by its existence. Essen v. Watier, 34 Pacific Rep., 750; Monongahela Navigation Co. v. Coon, 6 Pa. State, 379; 10 Neb., 460; 6 Northwestern, 755.
    Where plaintiff remains silent and inactive and allows acts to be done and expenses incurred, he willijlose the remedy by injunction and be compelled to assert his right of law. He must show promptness and vigilance in asserting his right. Chapman v. R. R. Co., 60 Ohio St., 119; Kellogg v. Ely, 15 Ohio St., 64; Goodin v. Canal Co., 18 Ohio St., 169; Trout Club Co., v. Sporting Club, 8 C. C. Rep., 207; City of Logansport v. Uhl, 50 A. Rep. 109; 99 Ind., 531; State v. Patterson, 40 N. J. L., 246 and 36 N. J. L., 159; State v. Morristown, 34 N. J. L., 445.
    A mere objection or protest or a threat to take legal proceedings is not sufficient to exclude the consequences of laches or acquiescence. Easton v. N. Y. R. Co., 24 N. J. Eq., 57; 10 Neb., 460; 23 Kan., 217; 61 Wis., 515; 70 Ga., 164; Whiting v. Union Ry. Co., 11 Gray (Mass.), 359 and 71 Am. Dec., 715.
    Injunction will not be granted unless a clear case of nuisance, or irreparable injury is made out. Goodale v. Crofton, 33 Ohio St., 270.
    But injunction against a nuisance will not be allowed or very rarely prior to a trial at law where the nuisance is established. Rosser v. Randolph, 31 Am. Dec., 712.
    Courts of equity will not exercise the extraordinary remedy of injunction except in extreme eases, that is to say, it must appear from the facts alleged in the petition and supported by the testimony that plaintiff has no adequate remedy by law; that the injury is one which cannot be compensated by damages, or in other words, in the language of the courts, the injury must be irreparable and irremedial; to justify injunction the injury must go to or tend to a destruction of the inheritance. When the statements in the petition are vague and indefinite or the testimony fails to make the injuries clear, certain and specific, injunction will not be granted. Blaine v. Brady, 64 Maryland, 373; 1 Am. State Rep., 378, and note in which the whole doctrine is discussed and authorities cited.
    Upon examination of the decisions of our own Supreme Court we find nothing to contravene our position. Upon the contrary we think they sustain our contention. Crawford v. Rambo, 44 Ohio St., 279; R. R. Co. v. Bohm, 34 Ohio St.; The R. R. Co. v. Tucker, 48 Ohio St., 57.
    
      George II. Phelps, for plaintiff in error, Elias Fox. (.Fox v. City. of Fostoria.) ' .
    We know of no exception or qualification to the primary right of the riparian owner the free, unobstructed and uninterrupted flow of the water of the stream in its natural channel. 48 Ohio St., 57; Tootle v. Clifton, 22 Ohio St., 254.
    
      This doctrine of primary riparian right is so far fundamental as to require no comment, or citation of authority; and certainly, if there is, or can be any qualification to such right, it cannot go to the extent of suspending the right altogether at a time of all others when such right is most valuable, to-wit: when the stream is at flood tide, and its capacity taxed to the utmost limit to carry off the super abundant waters. Dayton v. Robert, 8 C. C. R., 649; 4 Circ. Dec., 361; 8 C. C. R., 650.
    The court is asked in this case to engraft an exception, of qualification, upon this rule of riparian right, by holding that in time of high water, when this stream may reasonably be expected to overflow its banks its ordinary channel, and in fact its entire channel, may be completely obstructed for from six to twelve hours at a time when of all others, such riparian right is the most valuable, and the waters held back upon the farm of the plaintiff for the convenience, or (if we may so term it), the business necessity of a lower riparian owner.
    We say business necessity because it is well settled that' a municipal corporation owning property for such uses and purposes represents a proprietary interest, and for any violation of the property rights of others, in the course of such úse, the municipality is liable in the same degree as an individual would be under like circumstances. Cincinnati v. Cameron, 33 Ohio St., 336; Robinson v. Greenville, 42 Ohio St., 628; Dayton v. Peas, 4 Ohio St., 80; Ironton v. Kelley, 38 Ohio St., 50; Springfield v. Spence, 39 Ohio St., 665; Johns v. Cincinnati, 45 Ohio St., 278.
    It has been strenuously argued by counsel, that plaintiff must be content with his remedy at law for damages, and that equity will not interfere.
    
      That position, is not tenable. The protection and preservation of riparian rights is within the recognized exclusive jurisdiction of equity. High on Injunctions, sections 501 to 514 inclusive; Pollock v. Ship Company, 56 Ohio St., 674; Fox v. Fostoria, 14 C. C. R., 481; 8 Circ. Dec., 62.
    In Railroad v. Carr, 38 Ohio St., 448, the doctrine is established in Ohio, that a riparian owner like the defendant, who proposes for purposes of his own, to make changes or improvements, in the channel of the stream, must in the conception, as well as in the execution of his plan of improvement, pay just and proper regard to its probable effect upon other riparian owners. Crawford v. Rambo, 44 Ohio St., 279.
    The alleged necessity of the defendant for the maintenance of this dam and its operation in the city’s water supply is no warrant for denying the plaintiff a remedy where, as in this case, the operations of the defendant result in a direct and substantial injury to his inheritance, and in a manifest violation of his primary riparian right. Coal Co. v. Tucker, 48 Ohio St., 61; Hay v. The Cohoes Co., 2 Comstock (N. Y.), 159.
    A man may prosecute such business as he chooses upon his premises, but he cannot erect a nuisance to the annoyance of the adjoining proprietor, even for the purpose of lawful trade.
    If he cannot construct the work without the adoption of such means * * * he must abandon that mode of using his property.
    The above doctrine is quoted approvingly by this court in Tiffin v. McCormick, 34 Ohio St., 644.
    There is nothing whatever in the record to show the motive or consideration which actuated the court, and affected to dismiss the plaintiff’s petition, and the record in this case would effectually and forever bar the plaintiff against all further equitable remedies to procure the removal of this dam, or to enjoin its use and operation in the manner and for the purpose for which the pleadings in this case disclose that it is proposed and designed to be applied. 27 Ohio St., 238; 53 Ohio St., 361.
   Minshall, J.

These two cases relate to the same. subject of litigation and present similar questions, and for these reasons are reported together.

In the case of the City of Fostoria v. Fox, the suit below was brought by Fox against the city for a mandatory injunction, requiring it to remove a dam from a stream of water, a branch of Portage river, the dam being a part of its system of works for supplying water to itself and its citizens; and for damages, on the ground that the lands of the plaintiff were thereby wrongfully overflowed and injured. The dam was on the premises owned by the city, but a short distance below the lands of the plaintiff, situated on the stream above. The defendant was served with process by the sheriff of Seneca county, on a summons issued by the clerk of the court of common pleas of Hancock county. The defendant appeared for the purpose only of objecting to the jurisdiction of the court over it, and moved to quash the summons, and set aside the service made upon it on the ground that it is a city situate within Seneca county. ' It appeared, however, that a part of the city is within Hancock county, but that its principal place of business and all of its offices, are situate within Seneca county. In other words, Fostoria is substantially a city in Seneca county. The court overruled the motion and held that it had jurisdiction of the person of the defendant on the service as made. The defendant excepted. Issues were then made up, trial had, and judgment rendered against the city. It appealed to the circuit court The same objection was there made to the court’s jurisdiction; the objection was overruled and exception taken; and a trial had, which resulted in a judgment against the city.

Error is prosecuted here on various assignments of error, among others, that the court erred in overruling its motion to quash the summons, and set aside the service made upon it.

Evidently the court did not proceed upon the assumption that Fostoria is a city situate in Hancock county; for in such case the summons should have been issued to and served by the sheriff of that county, instead of to the sheriff of Seneca county; and the real question would seem to be, whether a city in a case like this may be sued in a county other than the one in which it is situated.

The action as brought is not a local one. This will appear from an examination of the chapter of our code of civil procedure, fixing the venue of actions, beginning with section 5022, and including section 5034, Revised Statutes. It is not an action for the recovery of real estate, or an interest therein, nor to enforce a lien of any kind upon it — it is for a consequential injury to such property, the defendant and the thing causing the injury, the dam, being both situate in another county. Nor is it within any of the eases that, under section 5025, must be brought in the county where the cause of action arose or some part thereof. This section applies only to actions for fines and penalties, to actions, against public officers for neglect of official duty, and to actions brought upon their bonds. The cause of action of the plaintiff below is under our code, transitory in character. At law the plaintiff had a right to proceed against the defendant for consequential damages; and such action could have been brought in Seneca county, as it is not local in character, that is, it need not be brought where the injury occurs. He proceeded in equity for a mandatory injunction, as well as for damages. If he had simply proceeded for a mandatory injunction, the suit could have been brought in Seneca, where the defendant had its domicil, and the thing sought to be abated was situate; and should have been brought there and not elsewhere. This necessarily results from the general rule prescribed in section 5031. It follows the sections prescribing where certain actions must, or may be brought; and is as follows: “Every other action must be brought in the county in which a defendant resides, or may be summoned,” except actions against executors, etc., which may be brought where the appointment was made or the defendant resides. It was held at an early day in Genin v. Grier, 10 Ohio, 209, that the common law division of personal actions into local and transitory is not known in Ohio. Local actions are such only as are made so by statute; and all other personal actions may be prosecuted in any county where process may be served on the defendant. See, also, Butler v. Birkey, 13 Ohio St., 514, 518.

It is argued, however, that under sections 5026, 5038 and 5044, construed together, this action was rightly brought and jurisdiction obtained of the defendant in Hancock county. We are unable to see how section 5038 can be of any-avail in this case. It simply provides that where an action has been rightly brought under the provisions of the Code, a summons may, at the request of the plaintiff, be issued to another county against one or more defendants. This section can only apply where the action has been rightly brought in the county where commenced. This action had not been rightly brought in Hancock county, where the summons was issued to the sheriff of Seneca. It had not in law, been brought at all; and could not be regarded as brought until the city had been rightly summoned. It is the only defendant to the action. Nor do we see how under the other two sections, or either of them, the service made in this case can be supported. Section 5044 simply provides how service against a corporation may be made: The summons may be served on the president, mayor, or other chief officer. There is no question in this case but that the proper officer was served, had the writ been properly issued.

We come now to section 5026 under which the claim is principally made, that the court acquired jurisdiction in this case. It reads as follows: “An action other than one of those mentioned in the first four sections of this chapter (being the sections prescribing a local venue to certain actions) against a corporation created under the laws of this state, may be brought in the county in which such corporation is situated, or has, or had, its principal office or place of business, or in which any corporation has an office or agent.” Of course this section can be of no avail in supporting the jurisdiction of the court, unless there was a showing that Fostoria is situate within Hancock county, or, being partly situate in this county, has its principal office or place of business therein, or at least an office or agent therein. But this is not claimed to be the case. The court found that a part of the city is within Hancock county, and then expressly found that its principal place of business is not therein, and that none of its officers or agents reside therein. We do not wish to be understood as intimating that, had the mayor resided in the part of the city within Hancock county, service could have been made on him at his residence, that would have bound the city. We suppose that in the case of a city, it would require a showing that the office of the mayor is located within the county where the suit is brought and that its principal place of business is therein.

But it is also claimed, that where a city is partly within one and partly within another county, it has a situs in each. This we think is not admissible. If this were so, it would be two cities instead of one. It would be quite as consistent with reason to say, that an individual could have two domiciles. The situs of a city is to be determined by the place where its principal seat of municipal government is located.

Again, if the above assumption were correct, then, as before pointed out, the service was bad; because it was made by the sheriff of Seneca countjq and not by the sheriff of Hancock, as it should have been, if Fostoria is a city of Hancock county.

As to the case of Fox v. Fostoria: After the determination of the previous suit, the city proceeded to make certain changes at its dam, so as to conform to suggestions of the court, whereby the injury complained of might be avoided. But the plaintiff, claiming that the changes had not avoided injury to his land, commenced this suit for an injunction and damages. The case having ' been heard in the common pleas, was appealed to the circuit court, where it was heard on the merits, and the court finding for the city, dismissed the action. The same question as to jurisdiction was made and reserved in both courts. The plaintiff in error seeks to reverse the judgment on the ground that the court erred in the admission of evidence, that the finding is against the weight of evidence, and that the judgment is against the law and the facts. There is no finding of facts, but the record contains all the,, evidence. We are of the opinion that there was no error in the admission of evidence; and, if it were proper for us to weigh the evidence, we have examined it sufficiently to say, that we would not disturb the finding below. Nor is the judgment against the law.

The court had jurisdiction of the subject matter, and the plaintiff having invoked it against the defendant, cannot object to an affirmance of the judgment on the ground that the court had no jurisdiction of the person of the defendant. It is an advantage a defendant jn such a case has: He may avail himself of a judgment in his favor on the merits, or set it aside for want of jurisdiction, where it is against him. .

It is proper to observe that the plaintiff in error does not ask a reversal of the judgment on the ground of a want of jurisdiction of the court over the person of the defendant, what has just been said it is to remove any appearance of inconsistency in reversing the first, and affirming the second ease on error; in as much, as the court had, in neither case, actual jurisdiction of the defendant.

Judgment in the first case reversed and petition dismissed; in the second case the judgment is affi/i'med.  