
    Leonard & Cook v. The City of Cincinnati.
    1. Whether the materials used in paving the sidewalks of a street in a city belong to the city or to abutting lot owners, subject to the public easement, is not a question of law merely. It is only upon the facts and circumstances of a given case, that the ownership becomes a question of law.
    
      % A bill of exceptions, taken on a trial before a justice of the peace, which contains the testimony offered on the trial, but does not show any question of law decided by the justice, is unauthorized, and can not be considered by a reviewing court.
    Motion for leave to file a petition in error to the District Court of Hamilton county.
    The original action was commenced before a justice of the peace, by plaintiffs in error, against the defendant in error, to recover the value of certain bricks and sand, which, it was claimed, the defendant had taken from the sidewalk in front of the plaintiff’s premises in the city of Cincinnati, and converted to its own use. The bricks and sand alleged to have been converted by the defendant had been furnished and used by the plaintiffs inrelaying and repairing the pavement.
    On trial before the justice, judgment was rendered in favor of the plaintiff for $82.80 and costs. To this judgment the defendant excepted, and filed a bill of exceptions, setting out certain testimony which had been offered on the trial. The bill of exceptions, however, does not purport to set out all the testimony given on the trial, nor does it appear that the decision of the justice was based on the; testimony set out in the bill.
    On petition in error, the Court of Common Pleas affirmed the judgment of the justice of the peace. These judgments were afterward, on error, reversed by the His-. triet Court.
    The plaintiffs claim that the District Court erred in reversing the judgments below, and the defendant claims that the justice of the peace erred in deciding that the bricks and sand alleged to have been converted by the defendant were the property of the plaintiffs.
    
      Forrest, Cramer Mayer, for the motion :
    A bill of exceptions can only be taken to the rulings of a justice of the peace on the law of the case. 66 Ohio L. 7, sec. 93; Swan’s Treatise (new ed.), 187; The State v. Wood, 22 Ohio St. 558; McCleary v. McLean, 2 Ohio St. 369; 16 Ohio, 408.
    
      Peck, Gerard $ Moloy, contra:
    'We claim that a bill of exceptions can be taken to the rulings of a justice, upon the objection by the parties that it is against the weight of the testimony. From the facts in this case, the judgment of the court below must have turned upon a question of law, to wit: Are the bricks and ■sand in the pavement in front of the property of the plaintiff his property, or do they belong to the public? The justice decided this question in favor of the plaintiff, to which the defendants immediately excepted, which they could do under section 93 of the justices’ code.
    We also claim that the brick and sand did not belong to the plaintiffs. They were put into the street, and became a part of it, and were the property of the public.
   By the Court.

While it is clear enough that the justice of the peace must have held that the bricks and sand, in controversy, were of the property of the plaintiffs, it is-impossible, upon the record before us, to determine whether he did or did not err in so holding*

It can not be affirmed, as matter of law, that abutting-lot-owmers have no proprietory interest in the materials with which sidewalks upon the streets of cities are paved.. Facts may be readily suggested, under which such materials, subject to the public easement, would be the property of abutting proprietors. "We can not judicially know what the facts were in this case. The bill of exceptions can not avail to inform us. The only authority for taking a bill of exceptions on the trial of a cause before a justice of the-peace is found in the 93d section of the justices’ code, as amended February 11,- 3869 (66 Ohio L. 7), wherein the right is limited to an exception “to the opinion of the justice upon a question of law arising during the trial of a-cause 'and in such case it is required that the bill contain the exception, with the point (of law) decided. The-bill in this record does not purport to state any point of law decided by the justice ; but contains only the testimony offered on the trial. There is no authority for an exception to the opinion of the justice on a question of fact, and a bill-of exceptions embodying the testimony taken on the trial,-but not stating a point of law decided and excepted to, is not authorized. It may be, that a judgment rendered by a justice without any testimony tending to support it, and without any presumption in its favor, would be reviewed on a bill of exceptions containing the whole of the testimony, as, in such case, the question arising would be one of law merely. But such is not the case before us. The bill here does not purport to contain the whole of the testimony, nor does it show that the case was decided alone on the testimony set out in the bill of exceptions.

Motion granted, and the judgment of the District Court reversed, and the judgment of the Common Pleas affirmed.  