
    No. 82
    KIEFER MACH. CO. v. AULT et
    No. 19402.
    Supreme Court
    On motion to certify.
    Dock. Nov. 3, 1925;
    3 Abs. 690.
    327. COURTS — Has a Court of Appeals in a proceeding in error the right to take a view of the premises involved in the transaction?
    Attorneys — Freiberg, Avery & Simmonds for Company; F. K. Bowman for Ault et; all of Cincinnati.
   The Karl Kiefer Machine Co. commenced an action in the Hamilton Common Pleas against L. A. Ault and others, comprising the board of park commissioners of Cincinnati, asking for a mandatory injunction against them and for damages.

It was alleged by the Company that the city maintained a reservoir situated near the Company’s place of business; and when the use of said reservoir was discontinued the property was attempted to be converted into a park for playground purposes. To this end the walls of the reservoir were cut down close to the ground and the stone was used to fill in as was also a large amount of earth.

It was alleged that the terrace walls upon which this stood was insecure and had moved several feet; that the filling in of the earth without proper drainage had caused water to collect and seep through in such a manner as to interfere with the lands, works, and buildings of the Company, situated on a lower level. The court, sitting in equity, awarded the Kiefer Company $1000 in damages.

The case was argued in the Court of Appeals and the judgment of the trial judge was reversed on the ground that his finding was against the great weight of the evidence. The Court announced that it had taken a view of the premises.

In the Supreme Court it is claimed that a view of the premises was entirely out of place so long after the trial and without opportunity of counsel for the Company to explain, in argument, any of the matters and things apparent to the eye at this date

It is contended:

1. That courts of error in Ohio have no right to take a view of the premises in passing on the weight of the evidence.

2. The Court of Appeals should have limited itself in passing on the weight of the evidence to the written record before it.

3. If that record could not be fully understood by the reviewing court, then it was the duty of that court to let the finding of the Common Pleas stand.

4. Since the Court of Appeals found in its entry of reversal that the written record could not be fully understood it should have gone on further, and should have affirmed the judgment of the court below.  