
    Railway Co. v. O’Harra, Adm’r.
    
      Administrators—Legal capacity of, to sue—Damages—Practice in civil cases.
    
    1. An action by an administrator to recover of a railroad company compensation and damages for wrongfully taking and appropriating lands of tbe decedent during bis lifetime, cannot be maintained, for tbe reason tbat sucb wrongful taking did not divest tbe decedent of bis title to the land; and the land, therefore, descended at bis death to bis heirs.
    Where tbe petition in sucb action, in addition to a claim for sucb compensation and damages, makes a case, and asks a recovery, for such damages to the lands of tbe decedent as be could have recovered in bis lifetime in an action of trepass, or case, without separately stating and numbering the same, a failure to demur to tire petition on tire ground of a want of legal capacity to sue, is not such a waiver of the objection as willpreclude the defendant from making it by an objection to evidence offered at the trial, or in a motion for a new trial, on the ground that the verdict is contrary to law.
    (Decided December 19, 1893.)
    Error to the Circuit Court of Mahoning county.
    The plaintiff below, as administrator of Anna Eoftus, deceased, commenced an action November 22, 1887, in the court of common pleas of the county to recover damages for the wrongful appropriation by The Eawrence Railroad Company of part of a highway of which the decedent was owner of the fee simple at the time, and of which she died seized; for the injury to her easement of ingress and egress to certain of her lands abutting on the highway; and, also, for consequential damages to the same. By reason of the nature of the questions made upon the record, the petition is here set out, and is as follows:
    “Plaintiff says, that he is the duly and legally appointed and qualified administrator with the will annexed of Anna Eoftus, deceased; that he was appointed such administrator by the probate court of Mahoning county, October 81,1887; that Anna Eoftus died about the 27th day of December, 1869; that no executors ever were appointed under her said will, and that no administrator ever was appointed until said October 31, 1887.
    “That The Eawrence Railroad Company is a corporation of the state of Ohio, owning a line of railroad from Youngstown to Eawrence Junction, in the state of Pennsylvania; that the Pennsylvania Railroad Company, .is a railroad corporation of the state of Pennsylvania, doing business in, and operating lines of railway in the state of Ohio.
    “That in the year 1868, and at the time of the wrongs and grievances hereinafter related, Anna Eoftus was the owner of the following described tracts and parcels of land, namely:
    “ First parcel; Situated in Youngstown township, Ma-honing county and state of Ohio, bounded and described as follows:
    
      “On the east by lot owned and occupied by James O’Harra, five chains and eight links (5c., 8 1.); north by the Catholic burying grounds,ninetj'-nine links; west by lot contracted to Mathew Roitus; south by the Cleveland and Mahoning Railroad; being part of lot No. 45, in the original survey of the township of Youngstown, and containing one-half an acre of land, and all the title and interest of Henry Manning, either in law or in equity of, in and to the said premises, together with all the privileges and appurtenances to the same belonging
    “That Anna Roftus became the owner of said first parcel, by deed dated April 2, 1861.
    “Second Parcel: Situated in Youngstown township, in the county of Mahoning, and said state of Ohio, being part of lot No. 45, in the original survey, containing one and 47-100 (1 47-100) acres, beginning at a stake in the north line of the land owned by Henry Manning, Sr., conveyed to the Cleveland and Mahoning Railroad, which stake is also the southeast corner of the lot which Henry Manning has contracted’to Owen Roftus; thence north 50°, east 7 chains, 9 links, to land sold by Henry Manning to William Jones; thence south 51J°, east on Jones’ line 1 chain 7 links, to the west line of the Catholic cemetery lot: thence southwardly on the line of said cemetery to the southwest corner of the same, and thence on the westerly line of a small lot deeded by Manning to Anna Roftus, to the line'of land conveyed to the said Cleveland and Mahoning Railroad Company, and thence on said line to the place of beginning. Also all my right to land in front of this lot and between it and the highway, Henry Manning having in a former conveyance to said railroad company, reserved all the land not wanted for county or railroad purposes, and all the estate, title and interest of the grantors of said Anna Roftus, either in law or in equity of, in and to the said premises, together with all the privileges and appurtenances to the same belonging, containing one and one-half (1-J-) acres of land.
    “That Anna Roftus became the owner of said second parcel by deed dated September 3, 1864.
    
      “Third Parcel: Situated in the township of Youngstown, county of Mahoning and state of Ohio, and known as part of lot No. 45, in the original survey, bounded and further described as follows: Beginning at a stake standing on the line of Hubler’s lot; thence north 5(KJ¡-°, east 6 chains and 83 links, to William Jones’ lot; thence south 51°, east 3 chains and 2 links, on said Jones’ line, to a stake which is the corner of a lot sold to Mathew Eoftus; thence south 50£°, west on the line of Mathew’s lot, 7 chains and 9 links; thence north 39°, west 2 chains and 95 links, to the place of beginning, containing two acres of land.
    “ That on the southwest of these several parcels of lands, was a highway leading from Youngstown down Mahoning Valley, to Haselton, and all that section of country and the Mahoning Valley, lying south and east of Youngstown, and was the leading highway leading into and out of the city of Youngstown, and was the only way of ingress and egress to and from said several parcels of land heretofore described.
    “That said highway in front of said property, was from fifty to sixty feet wide, and was bounded southwesterljq by a fence erected by The Cleveland and Mahoning Railroad Company, that said Cleveland and Mahoning Railroad Company had their track southwesterly from this 'fence and between said fence and the old Pennsylvania and Ohio Canal.
    “That the said Cleveland and Mahoning Railroad Company, occupied said right of way, under deed from Henry Manning, dated April 24, 1858, in which Henry Manning expressly reserves to the use of himself and heirs, all of said premises not required by said company, for the use of said railroad.
    “That all the land required for the use of said Cleveland and Mahoning Railroad, was southwestern'' of the said fence so erected by them on the southwesterly side of the aforesaid highway, and the southwesterly boundary of said lots; was intended to and did extend to the aforesaid fence, erected on the northwesterly side of the said Cleveland and Mahoning railroad track.
    “That about the year 1868, The Eawrence Railroad Company wrongfully and unlawfully entered upon and took possession of said highway and land, and located their line of railroad thereon, and without making any compensation to said Anna Roftus, the then owner thereof, and wrongfully and unlawfully appropriated the same to its use, and on the said highway, and land dug up and removed the earth, and made a deep cut and excavation to the depth of from six (6) to ten (10) feet, for a place and bed whereon to lay the ties and iron rails of their locomotive railroad; and built and erected its railroad track thereon and shortly thereafter commenced to use said railroad tracks, so wrongfully located and built on the said highway, on and over the premises of Anna Roftus, and in front of the said parcels of land so described, at all hours of the day and night until some time about the year 1873, when pursuant to some sort of an arrangement or lease, which plaintiff has no definite information, the Pennsylvania Company obtained possession of said railroad track, so unlawfully located and built by the said Rawrence Railroad Company, and said Pennsylvania Company has ever since continued to use and occupy the said railroad track as the said Rawrence Railroad Company had formerly used the same.
    “That all of said wrongful acts and the appropriation of said right of way and the use thereof was done without any agreement with the owner thereof, Anna Roftus, and appropriated to its use said right of way, without first making compensation or securing the same by a deposit of money, and without having the compensation and damage assessed in a court of record as prescribed by the constitution of the state and the law of the land.
    “That such use of said highway was not within the contemplation of the parties at the time said highway was located and dedicated to public use; that the entering upon, digging up, removing the earth, and making said cut and excavation, and building thereon said railroad track, occupying from one-half to two-thirds of said highway was a new use of the same not contemplated by the parties at the time of the location and dedication of said highway, and in no wa}' consented to by the owners of the fee thereof, and those owning property located on and abutting on said highway.
    “That about the time of the unlawful taking and appropriation of said highway and land to its use, said highway by the extension of the city limits became and was East Federal street of said city.
    “That said described parcels of land aggregating about four (4) acres in extent at the time of the wrongs and grievances herein related, was valuable suburban property so situated and located on the extension of the principal street of the city of Youngstown, and was of the value of three thousand dollars ($3,000) per acre, or twelve thousand dollars ($12,000); that on the same were dwellings, and improvements, and appurtenances thereto,locatedand erected with reference to the use of said highway, as said highway existed previous to the wrongful and unlawful use and appropriation thereof by said Eawrence Railroad Company.
    “ That by reason of the wrongful location of said railroad so near to said dwellings and appurtenances, and the danger from fire, and the nuisance occasioned by the soot and smoke, and the noise of bells and steam whistles, and the continual jarring of windows, occasioning the loosening of plaster and breakage thereof, the destroying of cellar walls and chimneys, the said propertj'- with its appurtenances became and was substantially valueless.
    “That by reason of the wrongful and unlawful location, use, and obstruction of said highway, so unlawfully appropriated by the said Eawrence Railroad Company, travel was driven and directed from said street, and the right of ingress and egress to and from said lots made extremely hazardous and dangerous, and making said property impassable for anything but foot passengers.
    “That the small part of said highway so left is so narrow that it will not permit the turning of a team therefrom on to the said land so described, and so narrow that there is only room for a vehicle, without any room for a sidewalk thereon.
    “That the value of said parcels of land and the appurtenances thereunto belonging, after the said wrongful taking and appropriation, did not exceed the sum of one thousand ($1,000.00) dollars.
    “That the said Eawrence Railroad Company have ever since delayed making reparation for the wrongs so done, and making compensation for the property so unlawfully taken and appropriated to their use.
    “And that by reason of the premises, said Anna Eoftus has been damaged in her estate, to the extent of twenty thousand ($20,000.00) dollars.
    “Wherefore, said plaintiff, Patrick O’Harra, administrator •of Anna Eoftus, asks judgment against the said defendants for said sum of twenty thousand ($20,000.00) dollars, with his proper allowance for interest and his costs.”
    The answer contained a number of defenses, to which there was a reply. The issues were found in favor of the plaintiff, so that, on the record as presented, the questions arise'upon the petition taken as true, and the pleas of the statute of limitations, in substance that the action was not •commenced within two, four, six, or even ten years, after the cause of action, if any, stated in the petition, accrued
    On the trial to the jury the defendant objected to any evidence being received under the petition in the case, for the reason that it does not state facts sufficient to constitute a •cause of action: and, also, because the plaintiff has not legal •capacity to sue. The objection was overruled and the defendant excepted. And at the conclusion of the evidence the court was asked by the defendant to charge the jury ,‘that under the evidence that had been offered, the plaintiff •cannot recover, and your verdict should be for the defendant;” which was refused and the defendant excepted. The jury rendered a verdict in favor of the plaintiff for $1,200.00.
    The defendant then moved for a new trial on these, among other grounds. (1) That the court erred in overruling the •objection of the defendant to the receiving of any evidence under the petition in the case; (2) that it erred in refusing to charge as required; an.d (3) that the verdict is contrary to law. The motion was overruled, exception taken and judgment rendered on the verdict. The judgment was affirmed on error by the circuit court—to reverse which judgment and that of the common pleas, this proceeding is prosecuted.
    The errors assigned are substantially the same as the grounds relied on in the motion for a new trial.
    
      J. R. Carey, and Hiñe & Clark, for plaintiff in error.
    The defendant in error has recovered judgment for land taken and damages to adjacent lands, caused by the building of the Eawrence Railroad in 1868. His decedent died on December 27, 1869.
    Thus, whatever cause of action grew out of the building of the railroad accrued in the lifetime of Anna Eoftus and so set the statute of limitations running, and once set running her death does not stop it. Granger, administrator, v.. Granger, 6 Ohio, 35; Williams et al. v. Presbyterian Society, 1 Ohio St., 478; Bartlow v. Kinnard, 38 Ohio St., 373.
    This brings us to the question raised by the objection to-the receiving of any testimony under the petition, viz.: was the right of action which grew out of the construction of that railroad track, i. e.:-—the property in that highway, for the taking of which damages is asked, land at the time of the commencement of this action, or was it simply a right or chose in action ? It must be one or the other, and yet, if either, the action was barred. For if it was land, the administrator, whose official powers extend over personal property only (except for payment of debts), could not maintain the action—it could be maintained by the one only to whom the fee passed on the death of Anna Eoftus.
    If it was a chose in action the longest possible limit of its life was ten years from the building of the track, or to-1878. Revised Statutes 4985. While this action was not commenced until November 22, 1887.
    The question as to the definition of such land owner’s right, has not been expressly decided by this court, except it be in Railroad Company v. Hambleton, 40 Ohio St., 496, where the right to sue for damages is held not barred for twenty-one years, which is tantamount to holding that the property in the street is land. And this is distinctly held in Valley Railway Company v. Bouchot, 4 C. C., 187, citing Railway Company v. Gardner, 45 Ohio St., 309.
    
      W. S. Anderson and S. L. Clark, for defendant in error.
    1. . There can be no question under the law, that if Anna Eoftus had lived, her action was not barred at the time of the commencement of this action. Railroad Company v. Hamilton, 40 Ohio St., 496, 500; Lawrence Railroad v. Loftus, No. 1939; Lawrence Railroad v. Hackett, No. 1937; “Washburn on Easements, 19; Butler v. Peck, 16 Ohio, St., 247, 253.
    The taking of this easement is the disseizin of title to an incorporeal hereditament belonging to the lot owner. Tootle v. Clifton, 22 Ohio St., 252; Bidelman v. Fulk, 5 Watts., 308; Syler v. Hooker, 7 Cowen, 266; Railroad Company v. Hamilton, 40 Ohio St., 496, 500.
    If Anna Eoftus had lived, her right of action lived for twenty-one years. Can there be any good reason for saying that her action became barred, and a different period of limitation applies to the action because she died, and without any administrator or executor to represent her estate, ■until about the time of the filing of this petition ?
    Anna Loftus was deprived of a private right, of the nature of an incorporeal hereditament, legally attached to her contiguous grounds; an incidental title to certain facilities and franchises assured to her by contracts and .by law, and without which her property would be comparatively of little value. This easement, appendant to the lots, unlike any right of one lot owner in the lot of another, is as much property as the lot itself. Crawford v. Village of Delaware, 7 Ohio St., 459, 469; Bingham v. Doan, 9 Ohio, 157; Street Railway v. Cumminsville, 14 Ohio St., 523, 547; Peoria & R. I. R. R. Co. v. Rice, 75 Ill., 329; Satterfield v. Crow, 8 B. Monroe (Ky.), 553; Neal v. Knox and L. R. R. Co., 61 Me., 298; Moore v. City of Boston, 274, 277, 278; Boynton v. Petersborough and S. R. R. Co., 88 Mass. (4 Cush.), 467; Boonville v. Ormroa’s Administrator, 26 Mo., 193; Ency. of Raw, Vol. 6, p. 590 (note 5); Ballou v. Ballou, 78 N. Y., 325.
    But it seems to be equally well settled law that where land or property appurtenant to the land, as in the case at bar, has been taken during the owner’s life, the compensation is payable to the administrator. Weller v. Cowles, 4 Conn., 182; S. C. 10 A. M. Dec. 115; 61 (Me.), 298; 58 Mass. (4 Cush.), 469; 36 Barber (N. Y.), 600; Howcott's Exrs. v. Warren, 7 Ired. (N. C.), R, 20; Ency. of Law, Vol. 6, p. 590 (note 6); Chicago & A. R. R. Co. v. Maher, 91 Ill. 312; Toledo W. W. R. R. Co. v. Morgan, 72 Ill., 155;, 50 Ill., 325 ; 39 Ill., 205 ; 100 Ind., 409; McFadden v. Johnston, 72 Pa. St., 335; 108 Mass., 209; 50 Mich., 470; 63 Wis., 178; Crawford v. Rambo, 44 Ohio St., 279; Delaware Railroad Co. v. Burson, 61 Pa. St., 369, 378.
    Did her death change the cause of action or period of limitations ? Wait’s Actions and Defenses, 10; Angell, Sec. 1; Ency. of Raw, Vol. 13, p. 668 (note 1).
    II. The record shows that no demurrer was filed in this, case and no objection raised by the answer to the legal capacity of plaintiff to maintain the action. Sections 5064 and 5062, Revised Statutes ; Bates PI., Vol. 1, pp. 66, 67 ; Hoop v. Plummer, 14 Ohio St., 448; Palmer v. Davis, 28 N. Y., 242, 247; Tapley v. Tapley, 10 Minn., 448; Jones v. Steel, 36 Mo., 324; Perkins v. Ingersol, 1 Dillon, 417; Section 5013, Revised Statutes; Depuy v. Strong, 37 N. Y.,. 372; Zabriskie v. Smith, 13 N. Y., 322, 336; Zimmerman v. Sheonfeldt, 3 Hun., 692 ; Saline Co. v. Sappington, 68 Mo., 454; Ryan v. Mullinix, 45 Iowa, 631; McCormick v. Blossom, 40 Iowa, 256; Parker v. Wiggins, 10 Kan., 420; Lowry v. Harris, 12 Minn., 255; Dewey v. Moyer, 9 Hun., 473 ; Affirmed, 72 N. Y., 70; Donnan v. Intelligencer, etc., 70 Mo., 268. It cannot be raised by charge to the jury. Bates’ Pl., Vol. 1, p. 70 ; Dunn v. Hannibal & St. Jo. R. R., 68 Mo., 268. Nor in the court above. Bates’ Pl., Vol. 1, p. 70; Potter v. Ellice, 48 N. Y., 321; Cairnes v. Knight, 17 Ohio St., 68; 29 Ohio St., 624; O’Briens. P. S. V. R. R. Co., 119 Pa., St., 184.
   Minshalr, J.

The first assignment of error, the admission of any evidence under the petition, for the reasons stated—want of capacity in the administrator to sue, and the bar of-the statute of limitations, makes it necessary to determine the character of the injuries for which a recovery was sought, and the time in which an action may be commenced thereon. By a reference to the petition it will, appear that the plaintiff claimed that the decedent, Anna Loftus, at the time of the injuries complained of, was the owner of three certain tracts of land, which, on their southwest sides, abutted upon a certain highway, leading from Youngstown down the Mahoning Valley to Haselton, the only ingress and egress to these lands. /That about the year 1868, The Lawrence Railroad Company wrongfully and unlawfully entered upon and took possession of the said highway and land, and located its line of railroad thereon, without making any compensation to said Anna Loftus, the then owner thereof, and appropriated the same to its use, without any agreement with her, and without having the compensation and damages assessed in a court of record, as prescribed by the constitution and the law of the land. That the use thus made of the highway was a new one, not contemplated at the time of its dedication as a highway by the owners. That these tracts of land, being at the time suburban property, were very valuable, but were greatly depreciated by the location and operation of the defendant’s road on the highway, and the inconveniences and annoyances incident to such use. That the part of the highway left was so narrow as practically to destroy her right of ingress and egress to her lands; and that by reason of the premises, Anna Loftus has been damaged in her estate to the extent of $20,000. It is, therefore, evident, as we think, from a consideration of the substance of the petition, that the injuries for which compensation and damages were sought, were the unlawful taking of the highway, the fee-simple being in Anna Loftus at the time; the disturbance of her ingress and egress to her lots; and the consequential injury to her lands not taken, arising from the usual annoyances incident to the location and operation of a railroad in their immediate vicinity. The question then arises, for which, if any, of these injuries, could the administrator maintain an action ; and, if for any, could it be commenced after the lapse of time shown by the petition, since the cause of action accrued.

It seems to be settled by the previous decisions of this court that the wrongful taking of land by a railroad company for a right of way, does not divest the title of the owner, and reduce his remedj' to a mere claim for compensation and damages. He continues the legal owner of the land and has the right to recover it in any period short of 21 years from the taking. Railroad Company v. Robbins, 35 Ohio St., 483; Warner v. Tanner, 38 Ohio St., 120; Railroader. O’Harra, 48 Ohio St., 343; Railroad v. Perkins, 49 Ohio St., 326, 333; and it necessarily follows that at his death his title to the land with the right of recovery, as well as the right to compel the company to condemn and pay for the land under section 6448, Revised Statutes, descends to his heir and not to his administrator. Hence, so far as the administrator sought to recover for an}*- part of the land taken, included in the highway, the right of actidn was in the heir and not in him, and he had no right to sue therefor. And the same is true as to any compensation sought for the taking of the easement of the decedent in the highway as a means of ingress and egress to her lands. An easement of this kind belongs to the land, is a part of the realty, and on the death of the owner passes with the land to his heir. The administrator cannot recover .the land, nor compel compensation to be made, for, as shown in Railroad Co. v. Perkins, this can only be done by the “owner” of the property taken. But as to the damages which accrued in the lifetime of the decedent from the wrongful use made of her lands, the interruption of her easement, and the consequential injuries to her other lands, and for which she could have maintained a personal action, the case is different. Being choses in action the right to recover the same passed, at her death, to her personal representative as a part of her personal estate; and could only be recovered by the administrator within the time limited for the commencement of such actions, which is four years. It therefore appears, as we think, that the court erred in admitting any evidence under the petition, for the reason, that the right to recover compensation for the taking of the highway and her easement therein, was in the heir and not in the administrator; and the right to recover the damages that had been done to her property in her lifetime, was barred by the statute of limitations, pleaded in the answer; and, of course, he could recover nothing for damages of any kind, to the land that accrued subsequently to the death of the decedent, for the right to such damages is in the owner of the land.

The case of Railroad Company v. Hambleton, 40 Ohio St., 496, is relied on to support the judgment of the courts below. But we see nothing in that case that can be said to do so. The raising of the grade of the street above that which had been established, was held by the court to impose an additional burthen on the land, and permanently affect the value of the plaintiff’s property, and that the right to continue this change could not be acquired by an adverse use short of 21 years, that is for the length of time necessary to create a right by prescription; and, being a continuous injury, the plaintiff had the right to recover the damages to his property occasioned by the permanent impairment of his, easement in the street. That the court clearly distinguished between the damages occasioned by the taking of the plaintiff’s property and those resulting from a mere trespass or nuisance, is clear from what is said in considering the charge to which an exception had been taken. The language is, “The charge of the court on the trial below was correct, so far as the cause of damages were affected b}r limitation, that is, that for permanent injury the limitation would be twenty-one years, the whole period during which the act of the defendants in continuing the cause of such injury would be without legal right. And that for temporary injury the plaintiff would be limited to four years before his action for the same.”

The principle upon -which 'this case and those cited above, have been decided is, that the title to real estate is not changed bjr being taken for a public use, unless under an agreement with the owner, by proceedings in condemnation, or, the use has been continued as an adverse one beyond the period in which an action can be maintained to recover the possession. It therefore remains in the owner with all the incidents and character of real estate, passing by his deed, or, at his death, to his heirs. Hence, whatever title the decedent had to the soil of the highway on which the company constructed its road—whatever easement she had therein as a way to her lands, bounded on the highway, being realty, did not pass to her administrator as assets; and he has no right to recover the same, or to maintain an action in any form to recover its value. A recovery by him would not bar the right of the heirs or those claiming under them to recover the land with its easements and appurtenances, or its value in a proper proceeding.

Decisions from the courts of some of the other states have been cited; but upon examitiation it will be found that they relate to cases where there had been a rightful taking of the land by due process of law, without the compensation having been paid in the lifetime of the owner. Thus in Welles v. Cowles, 4 Conn., 182, the holding is that, “Where damages were assessed, by the county court, in favor of the owner of land, through which a highway had been laid out, in her lifetime, payable at a future period, when the road was to be opened, which did not arrive until after her death, that such damages, as soon as assessed, became a debt, which belonged to the executor, and did not descend with the land to the heir.” Many such cases rna}'- be found, and also, cases where a recovery by an administrator has been sustained for damages done to the lands of the decedent during his lifetime, and which he could have recovered in a personal action, such as trespass or case; but none, where the object of the suit was to recover the value of land, its appurtenances or easements, wrongfully taken for public use, during the lifetime of the deceased; or for damages of any kind to land suffered subsequent to his death. In all such cases the right is adjudged to be in the heir. Boynton v. Railroad Co., 4 Cush., 467; Neal v. Railroad Co., 61 Maine, 298; Howcott v. Warren, 7 Ired , 20; Hotchkiss v. Railroad Co., 36 Barb., 600. In the case last cited, and which was an action in ejectment against a railroad company to recover lands wrongfully taken and damages, prosecuted by devisees, the court properly distinguished the rights of the parties as follows: “On the decease of Mrs. Hotchkiss, under her will the title to all her real estate vested in her children. In the prosecution of this action they were entitled, at the trial, to recover the land, and the use thereof as incidents thereto from the time of her decease. All claim to damages done to the estate, and for the use and profits thereof at the time of her decease, went to her executor, and belonged to the personal estate. The plaintiffs were only entitled to recover the land claimed, with damages for withholding the same, and the rents and profits thereof from the time their title to such rents and profits accrued.”

But it is claimed that under the provisions of section 5064, Revised Statutes, the objection to the right of the administrator to maintain the action, was waived by a failure to demur on the ground of a want of legal capacity to sue. It may well be questioned whether the objection did not go to a want of facts sufficient to constitute a cause of action, rather than to a want of capacity to sue. (Buckingham v. Buckingham, 36 Ohio St., 68, 73; Dale v. Thomas, 67 Ind., 570, 578; Notes to Subdivision 2, section 5062, Revised Statutes, Whitaker’s Code); but, be this as it may, the objection could not have been taken by demurrer on the ground of a want of capacity to sue, since the petition was, in part, good against such an objection; for waiving theobj ection of the statute of limitations, the petition did state a right of action in the plaintiff to recover for the torts of the company committed' during the life of the decedent; and, therefore, though good as to part of the injuries complained of, could not have been sustained, because not good to the petition as an entirety. We, therefore, think that, considering the substance of the petition, the practice adopted was a proper, if not the only course, the defendant had to pursue, other than a motion to strike out the immaterial portions of the petition; and, a failure to do this, was not a waiver of the right to object to the plaintiff’s want of capacity to sue, by objecting to the evidence offered at the trial.

Judgment reversed, and petition of plaintiff below dismissed.  