Wood Co. v. Shinnew

Citations

• 20 Ohio C.C. Dec. 158

Syllabus

<p>APPEALS — DRAINS AND DITCHES — EVIDENCE.</p> <p>Haynes, Parker and Wildman, JJ.</p> <p>1. Scope op Inquiry on Appeal in Ditch Cases.</p> <p>The inquiry as to the sufficiency of the outlet of a dfainage ditch is involved in an appeal from a finding in a proposed ditch im- ' provement proceeding, on the ground that the proposed improvement was not conducive to the public health, convenience or welfare.</p> <p>2. View op Ditch by Jury Discretionary with Court.</p> <p>It is not error for a probate court to refuse to send the jury, in a ditch improvement proceeding, back for a second view of the proposed outlet, though opposing landowners were not satisfied with the first view.</p> <p>[For other cases in point, see 3 Cyc. Dig., “Drains and Ditches,” §§ 87-94.— Ed.]</p> <p>3. Effect op Judge Entering Jury Room to Give Further Instructions.</p> <p>In proceedings before the probate court, in a ditch case, where the jury, after retiring, asked for further instructions, and the trial judge entered the jury room with counsel for both parties and delivered the instructions asked for without objection from either party, such action of the judge cannot be successfully attacked in a reviewing court on .the ground that it amounted to error or misconduct prejudicial to the rights, of a party.</p> <p>4. Sufficiency op Evidence as to Sufficiency of Ditch Outlet.</p> <p>In a proceeding before the probate court for the improvement of a ditch, opposed by landowners on the ground of the insufficiency of the outlet, the jury, having viewed the entire ditch and the outlet and having heard the' evidence introduced at the trial, is in a better position to say whether or not the outlet is sufficient than is a reviewing court having before it only a transcript of the evidence produced at the trial, and the finding of the jury will not be disturbed when not manifestly opposed to the evidence appearing in the record.</p> <p>[Syllabus approved by the court.]</p>