
    Elster v. Springfield.
    
      Municipal Corporations — Streets—License to use public street, by private individual, creates no right by prescription against city— No right by prescription, as to percolating water — Contracts by municipal corporations, involving expenditure of money, made before money is in the treasury — Purpose of the statute, prohibiting — Section 2702, Revised Statutes, construed — Construction of sewers — Contract for, without funds being provided, does not make city liable for negligence in its constmction, where not otherwise liable — Nor, where law by which money was being raised, was unconstitutional — When error in charge to jury, not grotmds for reversal,
    
    E brought an action against the city of Springfield to recover for the destruction of certain water pipes which, by virtue of a license and grant from the city, had been placed under the surface of Center street for the purpose of conveying water from a spring owned by plaintiff, and located within twenty feet of the west margin of Center street, to a manufactory on the same street owned by plaintiff, and for destruction of the spring by . means of the unlawful and negligent construction of a sewer "built by the city in Center street. It was shown that the pipes had been in place as they were when taken up by the city, for more than twenty-one years. The water thus conveyed to the factory was valuable, and the destruction of the pipes, and the cutting oif of the water proved a serious damage to the plaintiff in the running of the factory.
    The city had been laid off into sewer districts before the proceeding, and a general system of sewerage, and plans and specifications therefor, had been prepared by experts and adopted according to law, and this sewer was one of those provided for in the general system. It was admitted that the city authorities had taken all proper and necessary steps to authorize the building of this sewer excepting that at the time of entering into the contract for the building of it, the city did not have the money in the treasury to pay the cost, and that all the money for the payment of the cost the city proposed to raise, and did raise by loan, under an act that was unconstitutional. The pipes were taken up by the city with care, after notice to the plaintiff, at the commencement of the work of excavating for the sewer, and the spring was destroyed by the cutting off of a portion of the water which supplied it, by excavating the trench in which the sewer was built, the trench being lower than the spring. The walls of the sewer were not made water tight, and the water of the spring, and water from sources which had supplied the spring, were carried off in part under the walls of the sewer, and in part by seeping through the walls into .the sewer. It did not appear that the spring was supplied other than by water percolating through the earth.
    The trial court gave an incorrect rule of law to the jury, which was excepted to by plaintiff.
    
      Held • 1. Section 1692, Revised Statutes, gives to cities the power to build sewers, and Center street being a public street, and sewerage being one of the legitimate uses to which a public street may be devoted, the construction therein of a sewer, if done in a lawful manner, was an authorized use by the city of that street.
    2. The use of the street by the plaintiff, for his water pipes being allowed by license, there was no enjoyment adverse to the city. Nor had the city power by grant, to give plaintiff any right in the street inconsistent with the future legitimate uses of the street by the city. Hence, no right by prescription to maintain the pipes in the street would vest in the plaintiff, although he had enjoyed the use more than twenty-one years, and any damage accruing to plaintiff by removing the pipes, and thus interrupting the flow of water through them, would be damnum absque injuria.
    
    
      3. No right by prescription can exist as to percolating water, nor is one prevented from making any lawful and legitimate use of his own huid, by digging or otherwise, even though the effect is to drain a spring on the land of an adjoining proprietor. Injury to the spring, therefore, by draining it, or cutting off water supplied to it by percolation, would not be, per se, actionable.
    4. Section 2702, Revised Statutes, which provides that no contract involving the expenditure of money can be entered into unless the clerk shall certify that the money required by the contract is in the treasury to the credit of the fund, is intended for the protection of tax-payers by checking municipal extravagance and the incurring of indebtedness, and is not intended to attach liability to a city for negligence where the city would not otherwise be liable. Hence, the mere fact that there was no money in the treasury to pay the cost of the sewer at the time of making the contract, would not make the city liable even though there was negligence in its construction. Nor would the fact that the act under which the city was proceeding to raise the money was unconstitutional give a right of action to plaintiff on the ground of negligence in the construction of the sewer.
    5. A judgment will not be reversed for error in the charge to the jury where, upon the most favorable construction of the evidence of the complaining party, he had shown no right of recovery
    (Decided February 2, 1892.)
    Error to the Circuit Court of Clark county.
    The plaintiff in error instituted a suit in the court oi common pleas against the defendant to recover for the destruction of certain water pipes, and of a spring, by the negligent and unlawful construction, by the city, of a sewer or drain in Center street. Issue was joined, and a trial by jury followed. The court gave to the jury the following charge:
    “Gentlemen of the jury, as a matter of law I say to you that the city was not a trespasser in this case — not a wrongdoer. That it had the right to use Center street for the purpose of constructing a sewer, it having taken the necessary preliminary steps, there being no conflict in the testimony about the necessary preliminary steps having been taken, the only objection made being that there was no money in the treasury of the city to the credit of the sewer fund at the time the contract for the construction of the sewer was made and entered into, and that there was no money in the city treasury at the time of the passage of the ordinances and resolutions providing for the construction of the sewer. Though the matter he admitted by the defendant, yet the court being of the opinion that this was not a jurisdictional matter — not a matter that can make any difference between the parties to this suit, and there being no conflict in the testimony as to the care used by the city in the construction of this sewer — all the testimony in this case tending to show that the defendant used such care and caution as a careful, prudent and cautious man would have used in the construction of a like improvement upon his own premises, the plaintiff having failed to establish by a preponderance of the evidence, negligence on the part of the defendant, as he was bound to before* he could recover in this action, I direct that you return a verdict for the defendant.”
    The plaintiff’s counsel tendered to the court several special requests to charge, each of which was refused, to which refusals, and to the charge as given, and every ■ part thereof, plaintiff excepted.
    Verdict for the defendant was returned by the jury, and a judgment thereon rendered, which, on error, was affirmed by the circuit court.
    
      Keifer & Keifer, for plaintiff in error.
    I. The court should have let the question of negligence at least go to the jury, even though all other questions were against the plaintiff.
    The rule is clearly established everywhere that if there is any evidence tending to support the material issues of the party holding the affirmative thereof, the case must go to the jury, and a charge such as that given in this case, arresting the case from the jury is a clear usurpation of the province of the jury. Dick v. R.R.Co., 38 Ohio St. 389; Whelan v. Kingsley, 26 Ohio St. 131; Turner v. Turner, 17 Ohio St. 449; Richardso7i v. Ctirtis, 33 Ohio St. 329; Wightman v. Washington, 1 Black (U. S.) 39, 49.
    
      II. We admit that the city of Springfield had the general right to use a public street for the construction of sewers. This admission appears in the plaintiff’s petition and the power to open sewers is found in the general charter right relating to municipal corporations in Ohio. Revised Statutes, secs. 1692, 2232, 2304.
    The act under which the city undertook to build the Center street sewer was clearly unconstitutional. State v. Mitchell, 31 Ohio St. 592; State v. Constantine, 42 Ohio St, 437; State v. Pugh, 43 Ohio St. 98; 82 Ohio Laws (1885), 153.
    Without this act the city, for want of money in its treasury, could not lawfully construct the sewer. Revised Statutes 2698, 2691, 2700; Id. 2702; Amended, Ohio Laws, vol. 80, 178.
    It may be important, in the consideration of this case, to keep in mind that in Ohio, the fee of the street is in the abutting lot owners, regardless of any specially acquired right. Crawford v. Delaware, 7 Ohio St. 459-469; R. R. Co. v. Williams, 35 Ohio St. 171; R. R. Co. v. Hambleton, 40 Ohio St., 501; Bingham v. Doane, 9 Ohio, 168; Dil. on Mun. Cor. sec. 687.
    But regardless of where the fee is, the abutting property owners have rights in the street which cannot be taken away from them in any other way than as provided by law, and in using the streets even where the legal right is acquired, there must be due care used, and whatever is done therein must be done without negligence. Ry. Co. v. Lawrence, 38 Ohio St. 41; Ry. Co. v. Cumminsville, 14 Ohio St. 524; Crawford v. Delaware, 7 Ohio St. 469; Att’y Gen'l v. Cin. Gas Co. 18 Ohio St. 262, 292; Barkley v. Howell, 6 Pet. 494, 512; Commins v. City of Seymour, 41 Amer. Rep. 623, 625; Terre Haute v. Hudnut, 112 Ind. 542.
    Before going further into the law of this case, it may be well enough to consider what a city sewer is. American Mechanical Dictionary, vol. 3, 2097.
    In conferring powers upon municipal corporations to construct sewers, drains and ditches are distinguished from sewers; and the words “drains and ditches” are used in contradistinction of the word sewers in the Ohio laws. Revised Statutes, secs. 1692, par. 21, Am’d Ohio Raw, vol. 78, 204; 2232, Am’d Ohio Raw, vol. 84, 66; 2366, etc., etc., 2404, 2402.
    It has been claimed that notwithstanding the fact that the law under which the city of Springfield undertook to construct the Center street sewer was unconstitutional, that it. was only so as between the city and the contractor, and that it was still good enough to enable the city to destroy the property of abutting land owners along Center street, and this claim may be made in this court, absurd as it seems, on its bare statement.
    Any person has a right to question the validity of a law, whenever he is, in any way, affected by its execution. Counterman v. Dublin Tp., 38 Ohio St. 515, 517; Tone v. Cohmi-bus, 39 Ohio St. 281, 309; Welker v. Potter, 18 Ohio St. 85; Roberts v. Easton, 19 Ohio St. 78; Smith v. Toledo, 24 Ohio St. 126, 131.
    In Ohio, at least, it has been held that a corporation cannot have the benefit of a contract and repudiate its obligations. Shoemaker v. Goshen Tp., 14 Ohio St. 569; Goshen Tp. v. Shoemaker, 12 Ohio St. 624; State v. Van Horne, 7 Ohio St. 327; State v. Mitchell, 31 Ohio St. 592.
    III. Whatever may yet be in dispute, growing out of the old rule and apparent conflict of authorities, on the question of a municipal corporation’s liability for wrongful and void acts, committed wholly outside of the corporate powers of such-corporation, it is now, at least, completely settled, that a municipal corporation -is liable for wrongful acts of its agents where these are within the scope of the general powers of the corporation, even though such acts amount to a tort. 2 Dillon, secs. 936, 965, 971, 973, 968, 966,1046, 1048, 1050; Akron v. McComb, 18 Ohio, 229; Goodloe v. Cincinnati, 4 Ohio 500; Evans v. Cincinnati, 2 Handjr 236; 0»r cimiati v. Evans, 5 Ohio St. 594. . ..
    If the act complained of lies wholly outside of the general or special powers of a municipal corporation as conferred in its charter, it is held in some of the states that there is no liability for resulting damage; but this doctrine is hardly maintainable now in the light of the majority of the well-considered cases. 2 Dillon, secs. 968, 971, 972; Hildreth v. Lowell, 11 Gray 345; Walling, v. Shreveport,, 5 Da.. Ann. 660 ; Stoddard v. Saratoga Springs, 4 N. Y. S. 745.
    The authorities last cited go to the full extent of holding that, however illegally and wrongfully the act may have been performed, and, however much it may have been outside of the corporate powers, if the act was directed by the municipal corporate powers, or even ratified after it was committed, that corporations become liable for the damage occasioned by the wrongful act. Cincinnati v. Cameron, 33 Ohio St. 366; Fox v. Cincinnati, 33 Ohio St. 492.
    On the question of a city’s liability for injuries to property, etc., in the construction of sewers, see, Chicago Daw Journal, July 1890, 429; 18 Am. and Eng. Corp. Cas., 302, 317, n.; 89 Am. Decisions, 400, n.; 9 N. E. Rep., 142, n.; 24 Cent. D. J. 123.
    An action for tort lies against a city by the owner of land through which its agents have unlawfully made a sewer. Hildreth v. Lowell, 11 Gray, 345; 2 Dillon, secs. 971 and notes, 968; Railway Co. v. I^awrence, 38 Ohio St., 41; Keat-ing v. Cincinnati, 38 Ohio St., 141; Fox v. Cincinnati, 33 Ohio St., 492; Dayton v. Pease, 4 Ohio St., 96.
    Formerly the doctrine of ultra vires was successfully invoked to exempt corporations from their wrongful acts, and to allow them to escape from contracts that were not supposed to be beneficial to them, but this doctrine has been in the main overthrown as to all classes of corporations. National Bank v. Graham, 100 U. S. Rep. 699 ; State Board v. Railway Co., 47 Ind., 407 ; Whitney Arms Co. v. Barlow, 63 1ST. Y., 62 ; Lexington v. Butler, 14 Wall., 282; Bank v. Globe Works, 101 Mass., 57.
    IV. Even though the city in this case should not be liable because of want of legal authority to construct the particular sewer, it is claimed that this sewer was so negligently constructed that damage resulted.
    The sewer should have been constructed water tight, that is, so as not to admit water from without, or to allow it to escape from within, Cincinnati v. Penny, 21 Ohio St., 499 ; Kerwhacker v. R. R. Co., 3 Ohio St., 172 ; Tiffin v. McCor
      
      mick, 34 Ohio St., 638; Carman v. R. R. Co., 4 Ohio St., 399; 2 Dillon, sec. 974 and n.; Rhodes v. Cleveland, 10 Ohio, 159; McComb v. Akron, 15 Ohio, 474; Akron v. McComb, 18 Ohio, 229 ; Mout v. Gilmer, 37 Ala., 116; Logansport v. Wright, 25 Ind., 512 ; Wallaces. Muscatine, 4 Green (Iowa), 375; Barton v. Syracuse, 36 N. Y., 54; Proprietors, etc., v. Lowell, 7 Gray, 223; Fhostburg v. Hutchins, 16 Atl. Rep., 380 ; Gross v. Lampasas, 11 S. W. Rep., 1086; 41 Am. Rep., 618 ; 24 Am. Rep., 553 and n.; Minn v. Rutland, 52 Vt.,481; Parker v. Railroad, 3 Cush., 107, 114; Wightman v. Washington, 1 Black (U. S.), 39 ; City of Evansville v. Decker, 84 Ind., 325; Rochester W. L. Co. v. Rochester, 3 N. Y., 463 ; Dillon on Mun. Corp., sec. 1048 n, 1050 ; Dehnonico v. New York, 1 Sandf., 222 ; Butlers. Edgwater, 6 N. Y. S. 174; Trobridge v. Brookline, 10 N. E. Rep., 796.
    V. The statute of limitations will run against a municipal corporation in favor of a private individual, so as to give him a private right in a public street. This is well settled in Ohio. Evans v. Cincinnati, 5 Ohio St., 594; Lane v. Kennedy, 13 Ohio St:, 42, 48; Oxford v. Columbia, 38 Ohio St., 96, and cases there cited; • Cincinnati v. Pres. Church, 8 Ohio, 298; Williams v. Pres. Church, 1 Ohio St., 478; Fox v. Hart, 11 Ohio, 414; McComb v. Miller, 28 Ohio St., 488; R. R. Co. v. Com'rs., 31 Ohio St., 338, 349.
    There is no distinction in the application of the statute of limitations, between trespasses under ground and on the surface; nor whether the cause of action is known or unknown within the 'time limited by the statute. Williams v. Coal Co., 37 Ohio St., 583, 589; Hawk v. Minnich, 19 Ohio St., 462; Htmters;. Gibbo?is, 1 Hurl.'& Nor., 459; Cmcinnati v. 1st. Pres. Church, 8 Ohio, 299; Cincinnati v. Evans, 5 Ohio St., 594.
    This case is to be distinguished from a class of cases where a city or village is not held liable for insufficient drainage, etc., of land-owner’s property, by reason of the plan of drainage adopted. Of this class of cases are the following : Mills v. Brooklyn, 32 N. Y., 489; Fair v. Philadelphia, 88 Pa. St., 309 ; Springfield v. Spence, 39 Ohio St., 665. All these cases recognize the liability of a city for damages growing out of the defective construction of the work.
    And it is not like a case of the exercise of a franchise by legislative authority, by which a private corporation uses streets of a city, where such use is held not to be exclusive, as in the case of State, ex rel. v. Gas Co., 18 Ohio St., 262.
    VI. The defendant is liable for work imperfectly done under a contract made by it and afterwards accepted. Carmen v. R. R. Co., 4 Ohio St., 899; Tiffin v. McCormick, 84 Ohio St., 638; Tremain v. Cohoes Co., 2 N. Y., 163 ; Circle-ville v. Neauding, 41 Ohio St., 465; 2 W. U. G., 270 ; Hughes v. Ry. Co., 39 Ohio St:, 461; Cincinnati v. Stone, 5 Ohio St., 38; Robms v. Chicago, 4 Wall., 657.
    
      A. N. Summers, city solicitor, for defendant in error.
    It- is admitted that, in the construction of the sewer, so far as the legal steps are concerned, the city proceeded in all respects in accordance with law, excepting, that at the time of entering into the contract for the construction of the sewer, the city did not have the money to pay for the sewers; and, that the money was afterwards obtained under an act which it is claimed was unconstitutional.
    It seems to us, then, wholly unnecessary to consider, so far as this case is concerned, whether the act under which the money was obtained was constitutional. The mere statement of the plaintiff’s claim is sufficient. It is this: Granted that the city in the construction of this sewer acted without negligence and within the scope of its municipal authority, still it is liable, because, at the time it entered into contract, it did not have in its treasury the money to pay for it, but proposed- to and did raise the money under an unconstitutional law. I confess I cannot see how it could have made any difference, so far as this case is concerned, had the city stolen the money. Its right to use the street for sewerage purposes, to adopt a system of sewerage and plans and specifications for sewers, was not dependent upon its having money in the treasury. Section 2702 was enacted in the interest of the taxpayer and not for the purpose of enlarging the ground ■of municipal liability; the right to use the streets for sewerage purposes and the laws prescribing the steps to be taken in the construction of sewers existed long prior to the enactment of section 2702.
    In the case at bar the plaintiff was not the owner of real estate abutting on that part of the street in which the sewer was constructed. The fee of the street was not in the abutting lot owners. However, we claim it is immaterial whether the fee of the street was in the city or in the abutting lot owner, or whether the plaintiff was owner of abutting property. Dillon’s Munic. Corp. sec. 688; City of Cincinnati v. Penny, 21 Ohio St. 499.
    This is true also of Springfield. Subdivision 5, chapter 4, div. 7, title XII, Revised Statutes; especially sec. 2378, 2397, and subdivision 21, sec. 1692; Dillon’s Munic. Corp., sec. 1046; Springfield v. Spence, 39 Ohio St. 665.
    As a general rule, a municipal corporation is not liable for injuries to buildings on lots abutting upon streets and alleys, resulting from the improvements of such streets or alleys, or from their appropriation to a public use, provided its officers and agents, in making such improvements or appropriation, act within the scope of their authority, and without negligence or malice. City of Cincinnati v. Penny 21 Ohio St., 499; Smith v. Mayor, 66 N. Y., 295.
    The defendant did not undermine plaintiff’s spring, nor encroach or trespass on plaintiff’s property. The petition states that the spring was twenty feet west of Center street and, about fifty feet north of Washington street, and that the sewer was constructed near the center of the street. The water was not drawn out of the spring but intercepted before it reached the spring. In any view of this branch of the case, therefore, the plaintiff is not entitled to recover. Frasier v. Brown, 12 Ohio St., 294.
    As to the pipes. It is well settled law in Ohio that municipal corporations are subject to the operation of the statute of limitations in the same manner and to the same extent as natural persons, but in order to acquire title by prescription or adverse possession, the “adverse possession must be actual, open, continuous, hostile and exclusive.” The very essence of an adverse possession is, that the holder of it claims the right to his possession, not under, but in opposition to, the title to which his possession is alleged to be adverse. Nor is possession adverse when it is held by agreement with the true owner. Dietrick v. Noel, 42 Ohio St., 18, 21: Washburn’on Real Property (4th ed.) 322, 323.
    The city could not grant more than a license to lay the pipes in the street, and if they were laid under a license, as plaintiff claims in his petition they were, and in his brief that defendant’s answer admits they were, then he could obtain no right by prescription. Frazier v. Drown, 12 Ohio St., 311; Washburn on Real Property, 356; Dillon’s Munic. Corp. sec. 656 b; also sec. 660; Kirby v. Citizens' Ry. Co., Md. 168; Portsmouth Gas Light Co. v. Shanahan (N. H.) 19 Atlantic Reporter, 1002.
    So, here, the city could revoke the license to maintain the pipes in the street, or it could move them or require them to be removed if necessary in the construction of the sewer.
    The defendant, having acted within the scope of its authority and without negligence, i.t was the duty of the court to instruct the jury to return a verdict for the defendant; such being his duty it matters little what reason he may have given for so directing them; and such being his duty, it was unnecessary to charge them as requested by plaintiff.
   Spear, J.

It is not contended that the charge to the jury regarding the weight of the evidence was a correct instruction, but the claim of the defendant in error is, that under no charge that could have been given would the plaintiff have been entitled to a verdict.

This condition of the record makes it incumbent on this court either to reverse the judgments below and remand the cause for a new trial, or to examine the evidence in order to determine whether, upon plaintiff’s own showing, the right judgment was not rendered. The circuit court took the latter course, and the authority of this court to do likewise is not doubted. If, taking the evidence of plaintiff as true, a right of recovery, under the pleadings, had been established, then the plaintiff in error is entitled to a judgment of reversal, while, on the other hand, if plaintiff had failed to make a case, by the pleadings and proof, entitling him, in the most favorable view, to a verdict, then the charge to the jury was immaterial, and the judgments should be affirmed.

The important facts appearing are as follows: The water-pipes had been placed under the surface of Center street, one of the public streets of the municipality, by virtue of what is-termed “a license, privilege and grant from the town of Springfield,” to plaintiff’s predecessor in title, for the purpose of conveying water fr.oni a spring owned by him, and located within twenty feet of the west margin of Center street, to a manufactory on the same street owned by him. The pipes had been in place as they were when taken up by the city, for more than twenty-one years. The water thus conveyed to the factory was valuable, and the destruction of the pipes, and the cutting off of the water proved a serious damage to the plaintiff in the running of the factory.

Whether the plaintiff was the owner of the lot on which the spring was located, or so much only as supported the spring, with the right from the lot owner to maintain the pipes to the line of the street, did not clearly appear, but, for the purposes of the case, he may be treated as an abutting owner.

The city had been laid off into sewer districts before the commencement by council of the proceeding to construct the sewer, and a general system of sewerage and plans and specifications therefor, had been prepared by experts and adopted according to law, and this sewer was one of those provided for in the general system. It was admitted that the city authorities had taken all proper and necessary steps to authorize the building of this sewer, excepting that at the time of passing the ordinance and of entering into the contract for the building of the sewer, the city did not have the money in the treasury to pay the cost, and that all the money for the payment of the cost, the city proposed to raise, and did raise by loan, under an act that was uncousti-tutional. The pipes were taken up by the city with care, after notice to the plaintiff, at the commencement of the work of excavating for the sewer, and the spring was destroyed by the cutting off of a portion of the water which supplied it by excavating the trench in which the sewer was built, the trench being lower than the spring. The walls of the sewer were not made water tight, and the water of the spring, and water from sources which had supplied the spring, were carried off in part under the walls of the sewer, and in part by seeping through the walls into the sewer. It did not appear that the spring was supplied other than by water percolating through the earth.

No charge is made that sewage flowed out from the sewer, working injury. It is because water flowed into it that complaint is made.

Plaintiff’s claim for damages naturally divides itself into two branches. The first is for destruction of his water pipes and the interruption of the flow of water to the factory. This claim rests upon the proposition, averred as a fact in in the petition, and argued in the brief, that a right by prescription had been acquired by the occupancy by plaintiff and his predecessors in title of the privilege of maintaining the pipes in the street for more than twenty-one years.

To thus acquire an easement the enjoyment of the privilege must have been under an adverse claim of right against the city, since no length of enjoyment by permission can ripen into an easement. 2 Washburn on Real Property, §88; Morse v. Williams, 62 Me. 445; Colvin v. Burnett, 17 Wend. 569; Luce v. Carley, 24 Wend. 451. It must also have been an open and notorious possession. The facts of adverse enjoyment, and open and notorious possession, are not, we think, shown by the evidence. The occupation was under the surface. It is presumed to have been known to the municipality because of the giving of the license, though not so as to the public. The use was not apparent, and could hot, in its nature, be notorious, as regards the public. Neither was it, in its nature, adverse, inasmuch as it did not interfere with the uses of the street, either by the municipality or the general public, until the needs for a sewer arose, nor did it, in any waj*-, work inconvenience to either. See Lane v. Kennedy, 13 Ohio St. 42. Indeed the averment that the owners “have had the license, privilege and right under a grant of the said city of Springfield,” etc., etc., would appear to be inconsistent with holding under an adverse claim of right, as we will endeavor to show later on.

As: to the grant the further averment is that “in the month of December, A. D. 1848, the said city of Springfield (then a town), by proper grant through the municipal authorities of said city, and on a good and valuable consideration, gave to J. W. and Wm. A. Kills, then the owners of the premises now owned by the plaintiff, and then the owners of the real estate and the spring situate thereon aforesaid, the privilege, license and right to lay pipes from said spring to said Center street, thence beneath the surface of said street to the premises then owned by said J. W. and Wm. A. Kills, and now by the plaintiff and the said J. W. and Wm. A. Kills, on or about, the month of May, 1849, in execution of said grant, and in pursuance of the same, and the license and privilege aforesaid, at great'* cost' and expense, procured and laid pipes from said real estate, and said spring, to said Center street, thence under the - surface thereof, on the west side of the same, north to the premises now owned by plaintiff, and for-the purpose of conducting' water from said spring to said premises for the use of the same in connection with manufacturing and other legitimate purposes, and.- the' said pipes have been maintained as thus laid down by said J. W. and Wm. A. Kills and those holding under them, and renewed from time to time from the date last aforesaid, up to the present, and especially to the time of the commission of the wrongs and injuries herein complained of. And during all such time, with the exceptions hereinafter named, the said J. W. and'Wm. A. Kills, and those purchasing and owning the real estate, -now owned by plaintiff, including said spring and the real eétate on which it is situated, have had and exercised the right to conduct the water through such 'pipes thus located, and use • the same as aforesaid.’

Plaintiff has succeeded, by mesne conveyances, to all the rights of the Kills save only as regards an unimportant privilege reserved by one Steele.

This brings us to the question of the effect in law of the grant by the town of Springfield. Its exact terms do not appear, though, probably this is not important, for the question, independent of form, is, could the council of the town make a grant of an easement in a public street which would interfere with the legitimate use of the street, by the municipality itself? This is to be determined by a consideration of the power of the corporation over the street', and its duty with respect to the street, growing out of its relations to the public.

For the purposes of this case, it is probably not of consequence whether, as to Center street, the naked fee is in the city or in the owners of the abutting lots. However, it is averred and not denied, that the town acquired its rights to the street by dedication. Therefore, under section 2601, Revised Statutes, the fee is in the municipality in trust, however, for public uses, to-wit: for all the uses of a street, subject, of course, to the property rights in the street of the abutting lot owners.

The laying of sewers, like that of gas and water pipes beneath the soil, and the erection of lamps and hitching-posts, etc., upon the surface, is a street use, sanctioned as such by their obvious purpose, and long continued usage, and that such is one of the legitimate uses to which a street may be devoted is distinctly held by this court in Cincinnati v. Penny, 21 Ohio St. 499. For such purpose, it would seem that the right of the municipality in the street could not be inferior to the right of a private owner over his own land. If the title comes by appropriation, all right to damages by reason of the acquisition of the land for street uses, in favor of abutting owners, must be held to have been taken into the account and compensation therefor awarded in the original taking, and, if by dedication, the same result would follow as an incident of the grant. That a city’s power over its streets for legitimate street purposes, is as great as that of a private individual over his own land, is recognized in Nevins v. Peoria, 41 Ill. 502; Dixon v. Baker, 65 Ill. 518; Yearney v. Smith, 86 Ill. 391, and appears to be sustained by-sufficient reason. It necessarily follows that for all such public uses the right of the municipality is paramount to any property right of the abutting owner in the street. Dillon on Munic. Corp., section 656.

The municipality is given the exclusive care, supervision and control of the streets. Hand in hand with this power goes a corresponding duty to keep them open, in repair, and free from nuisance. This implies a duty to see that the right of the public therein is not encroached upon. An encroachment which would prevent the reasonable use of the street by the municipality would be a nuisance, and power to validate such nuisance by a grant would be utterly inconsistent with the duty enjoined to keep the street free from nuisance.

As we have seen, the city as to its streets, is a trustee for the use of the public. A trustee of property for the benefit of the public could not, any more than could a trustee of private property held for known specific and continuing uses, alien or encumber the property to the prejudice of the beneficiary, and a purchaser dealing with the trustee, in either case, would be bound to take notice, at his peril, of the limitation of the power. 2 Dillon on Mun. Corp., section 671; Alton v. Trans. Co., 15 Ill. 60. Hence it would follow that whatever grant may have been made by the town of Springfield to the Kills, to maintain water-pipes in Center street, could have no greater operation than as a temporary license, subject to be revoked at the will of the town, or city, as its necessities in the future uses of the street might require. It necessarily results from this that the enjoyment of the street beneath the surface for the laying of the pipes and the flowing of the water through them was a permissive use, and that no permanent right could be acquired by long continuance.

Extended comment upon the subject is not necessary here, but we may remark in passing that it is difficult to perceive how title to an easement by prescription, as against a municipality, can result from occupancy for twenty-one years, even if it be open, notorious and adverse, for such title rests upon the presumption of a grant. We do not propose questioning that a municipal corporation, as to its streets, may be affected by the statute of limitations, and if the plaintiff’s remedy could be worked out by the operation of the statute, of course, it would not be important to him as to the ground on which the court might put it. But while treating of the subject, it is somewhat desirable that right conclusions be reached, though, they may not be necessary to a determination of the case. We have already seen that there is no power in the municipality to make a valid grant prejudicial to the interests of the public. And nothing seems better settled than that' a grant cannot be presumed unless it relates to that which one party could have granted to the other. Washburn on Easements, 150; Watkins v. Peck, 13 N. H. 360; Fishing Co. v. Carter, 61 Pa. St. 21; Chalker v. Dickinson, 1 Conn. 384. In Cincinnati v. Evans, 5 Ohio St. 594, the court says that “municipal corporations are subject to the operation of the statute of limitations, in the same manner, and to the same extent, as natural persons.” An examination of the charge of the trial court, which was under’'review in that case, and was distinctly approved, discloses that the learned judge gave effect to the statute of limitations, not as having vested in the occupant a title by prescription, but upon the ground that municipal corporations have the right, from necessity, to establish the lines of their own possessions, and when once established, they are bound by them, which was entirely justified by the fact that Evans’ building had been located by the city surveyor, and upon lines previously established and built upon. Pecic, J., in Lane v. Kennedy, supra, commenting upon Cincinnati v. Evans, observes that the case was “rightly determined, but, as will be seen by a reference to the facts therein stated, it might with equal, if not greater propriety, have been placed upon the ground of an estoppel in pais on the part of the city authorities.” This is a recognition of the later, and apparently, the more generally accepted doctrine out-side of our own state, of the application of the rule of equitable estoppel in pais, rather than the statutory rule óf the statute of limitations. 2 Dillon, § 675. The doctrine of equitable estoppel has no place in the case we are considering. The language of this court, above quoted, from Cincinnati v. Evans, means, we suppose, simply that the-city’s claim could not be maintained, because the law-making power had seen fit to provide that an action for the recovery of the possession, etc., of lands, etc., can only be brought within twenty-one years after the cause of action shall have accrued.

Plaintiffs second ground of complaint is the cutting off of water which before had supplied the spring, and the destruction of the spring by draining it. It is not charged that this supply came from plaintiff’s lands. The inference is that it came by percolation through the earth in the vicinity of the spring. It is averred that the damage arose from the negligent construction of the sewer, and that, being unlawful because done in violation of the terms of the statute requiring that the money to pay the cost shall be in the chy treasury, and under an unconstitutional act intended to afford a way to raise the necessary money by issuing bonds, a right of action accrued to plaintiff for his damages. This claim must rest upon the proposition that plaintiff had a legal right to the use of the water percolating through the earth, and a like right to have maintained intact, the water of the spring itself. It is not insisted that the claim to the water was the subject of grant. Could the enjoyment by plaintiff and his predecessors in title for more than twenty-one years give such right?

The ownership of underground waters has been a prolific subject of discussion, and much difference of opinion has developed among text writers and judges. We are concerned only as to percolating waters. Upon this branch, the law, at least in Ohio, is settled to the effect that no right ex-' ists in the owner of one piece of land to receive percolation through the land of another, and that such a right cannot be acquired by prescription. The same rule must apply to a spring supplied by percolating waters. That is, an owner of land cannot, in the absence of grant or contract, deny to his neighbor the right to use his own land for legitimate purposes, though the direct effect be to drain the former’s spring, and it is not of consequence bow long tlie spring has been enjoyed. We regard these questions as entirely covered by the case of Frazier v. Brown, 12 Ohio St. 294, and the authorities there cited, and discussion of them here would be superfluous. From these rules it results that in water percolating through the earth under Center street, or under the surface of lands of others in the vicinity of the spring, the plaintiff had no ownership, nor had he a right to insist that they should flow as they had theretofore flowed. It follows that unless the case is affected by the fact, that at the time the contract was let the city did not have in the treasury money to pay the cost of construction, or by the attempt to act under a void statute in the raising of money, or by the charge of negligence in the construction of the sewer, there can be no right of recovery.

The legality or illegality of the city’s acts depends upon the construction of section 2702, Revised Statutes. This provides that no contract involving the expenditure of money shall be entered into, or ordinance for the appropriation of money passed, unless the clerk shall certify that the money required for the contract is in the treasury to the credit of fund, etc. We think the object and purpose of this section is apparent on its face in view of the mischief theretofore existing. Before its passage there was no adequate check upon municipal extravagance in the making of improvements, and the incurring of municipal debt. This act put a barrier in the way, and thus afforded some protection to the taxpayer. To give it such construction as to defeat that purpose, and bring about the opposite result, would be to ignore the main guide in the construction of statutes, viz: the intent of the law makers. Had the plaintiff, in due time, brought action as a citizen taxpayer to enjoin the work of building the sewer, no reason is perceived why the result desired might not have been reached. And if a violation of section 2702 did not create liability for negligence, certainly, as it seems to us, the fact that the city was proceeding to raise the money by an unconstitutional act of the legislature, could not have that effect. It was a mere incident. So long as the general power to devote the street to sewer purposes existed, the method of raising the money to pay the cost, while it might have been enjoined and thus prevented, could not create liability for negligence where none otherwise attached to the acts of the city. The general rule, that any person has a right to question the validity of a law whenever he is injuriously affected by its execution, is not denied, but it can have no application to the case at bar for the reason that it was the execution of the laws which gave to the city the general power to construct the sewer in Center street, which produced the damages of which plaintiff complains, and not that under whjch the city was endeavoring to raise money. So far as plaintiff’s complaint is concerned, therefore, the city was not proceeding illegally.

How is the case affected by the charge of negligence? Negligence, we suppose, necessarily implies a legal duty to use care. That is, the complainant must show that he had a legal right to demand care, and this, too, as to the particular matter complained of. Where there is no obligation of care or caution, there can be no actionable negligence. Railway v. Bingham, 29 Ohio St. 364. It has been well-said, that “negligence is not absolute nor intrinsic, but always relative to some circumstance of time, place, or person.” Needham v. Railroad, 37, Cal. 410. It would be immaterial, therefore, in this case, that the sewer was so faultily constructed as to admit of the outflow of sewage, to the damage of adjoining property, as that is not the damage complained of. We have already seen that the plaintiff had no right in the percolating waters cut off by the construction of the sewer, nor a right to have maintained intact the water of the spring. Consequently, he could not demand the exercise of care to protect those waters. The charge of negligence, therefore, so far as the same might affect them, whether as regards the flow of water into and through the sewer and trench, or the effect of blasting of rocks in the excavation for the sewer upon the waters in the earth of Center street, or in the lands of others in the vicinity of the spring, if proven, could not create liability against the city.

Attention is directed to Trowbridge v. Brookline, 144 Mass 139, where it was held that a town, which, under the Massachusetts statute, condemned land and constructed a sewer, whereby a well upon land not taken was made dry, the well being fed by water percolating through the soil, was liable to the owner of the well. The decision is distinctly placed, upon the provisions of the condemnation statute, which provides that compensation shall be made for damages sustained by any person, whether by taking his property, or injuring it in any manner, and is, upon the face of the statement, not authority in the case at bar.

We agree with the conclusion of the circuit court, that the charge given, and the refusals to charge, were alike immaterial, because no ground for recovery had been shown, and as a judgment will not be reversed for errror in the charge to the jury, where, upon the most favorable construction of the evidence, the complaining party had shown no right of recovery, the judgments below should be affirmed.

fiidgment accordingly.  