Cuyahoga County. From this we conclude that the abutter has a right to consent or withhold his consent, either to the construction of a new road or to the extension of an old road. While it has been held with regard to a new road that a general consent, or even one specifying some company or individual, will inure to the benefit of the company or individual offering to carry passengers at the lowest rate of fare, we think it equally clear that a consent to the extension of an old road will inure only to the benefit of such old road. This personal right of the property owner to designate whether his consent shall inure to the benefit of the lowest bidder for a new road or for the benefit of an old company seeking a right to extend its tracks, is not founded alone upon the distinctions shown to exist in the statutes, between new construction and extension; it has natural justice back of it. If the right to consent or withhold consent is a personal right, the property owner should be allowed to exercise it as he sees fit and as he deems to his best advantage. It may be considered by him a more desirable thing to have a street railroad in front of his property which will take him for five cents all over the city, than to have one with a three cent fare which only runs up and down the street for two or three miles and neither goes near his own place of business or that of others with whom he trades or desires to meet. On the other hand, if he prefers the new railroad, because of its lower fare, he should have a right to express his preference. With these views of the law of the case we have admitted testimony as to the situation of the parties in order that we might determine the intention of George Flesher as expressed in his so-called withdrawal of consent dated August 24, 1903, and we hold that said instrument was a revocation of the general consent given theretofore and the exception therein contained referring to the Cleveland Electric Railway Company inures only to the benefit of the latter company in a proposed extension of its tracks along Denison avenue. This frontage is counted as not consenting. 9. Carrie E. Rundell, 46 feet. Counted against the ordinance for reasons stated in No. 8. 10. Joseph H. Storer, 524.31 feet. Counted against the ordiance for reasons stated in No. 8. 11. Frank S. Pelton, 120.88 feet. Pelton filed a consent, but revoked it August 17, 1903. On September 9, 1903, he signed another consent, but the evidence shows that the last consent was not produced to council. Counted against the ordinance. Day v. Railway. 12. Horatio B. Carpenter, 100 feet. Counted against the ordinance for reasons stated in No. 8. 13. The Union Savings & Loan Company, 93.33 feet. Consent was signed, "Union Savings & Loan Company, A. G. Hutchinson, secretary." Revocation was signed, "Union Savings and Loan Company, by H. Q. Sargent, president." Neither consent or revocation was authorized by the board of directors at a meeting regularly held, but we are satisfied that the several members of the board were consulted in each instance and that the revocation is as valid as the consent. Counted against the ordinance. 14. C. F. Brandt, 90.78 feet; Maria Peters, 155.00 feet; Michael J. Maher, 105.27 feet; Henry Maulberger, (1-2 of 35) 17.50 feet; John A. Dennerle, 138.18 feet; Nellie M. Noderer, 69.12 feet; Michael Froelich, (1-2 of 105) 52.50 feet; Ellen I. Sears, 414.75 feet; P. J. & Nettie Reilley, (1-2 of 50.8) 25.10 feet. The only objection made to the above consents is that they were signed in 1902, about a year before the passage of this ordinance. At that time a similar ordinance was pending, but the Supreme Court enjoined the council of the city of Cleveland from granting any street railway franchises until after its reorganization under the new municipal code. Further proceedings with regard to the old ordinance were dropped and application for the present franchise was made after the reorganization of the city government. We do not think these old consents were functus officio, as claimed by plaintiff. They were outstanding with full knowledge of the consenters and unrevoked. This conclusion is sustained by Sanfleet v. Toledo, 8 Circ. Dec. 711 (10 R. 460), affirmed by the Supreme Court without report. See also State v. Henson, 66 N. J. Law 601, 617 [50 Atl. Rep. 468, 616], and Nellis, Street Surface Rys. 81. These frontages are counted as consenting. 15. The Frisbie Company and William and Minnie Stroh, land contractees, 41.96 feet. Title in the Frisbie Company, but William and Minnie Stroh in possession of the property under a land contract. Consent signed by the Frisbie Company and Mrs. Minnie Stroh, one of the contractees. We hold, that where the vendee of land under a contract to convey it is not in default under his contract and is in possession of the land which abuts upon a street upon which it is proposed to construct a street railway, the right to consent to the construction of such railway is in said vendee. Cuyahoga County. Applying this rule to this frontage, one of the vendees having consented and the other having failed to give consent, only half of the frontage can be counted in favor of the ordinance, and we therefore count one-half of 41.96 feet, or 25.98 feet against the ordinance. 16. The Frisbie Company and J. C. Buchler, land contractee, 42.06 feet. Both vendor and vendee signed consent. We see no reason why it should not be counted in favor of the ordinance. 17. Estate of Mrs. F. W. Pelton, 1765.70 feet. Susan A. Pelton was at one time the owner of this land, signed a consent and then died. The property descended to her two daughters, Lucy A. Wenham and Elizabeth Pelton. Elizabeth Pelton was an imbecile and after the mother's death, Lucy A. Wenham was appointed her guardian. Mrs. Wenham knew that her mother had signed a consent and approved of it. Having such knowledge she never revoked the consent.. We hold that where an owner of land has consented to the construction of a street railway and the title to said land subsequently devolves upon another who has knowledge of said consent, but never revokes it, the latter is bound by the consent. Under such holding it follows that the one-half of this property which Lucy A. Wenham inherited must be counted as assenting. As to the one-half inherited by the imbecile daughter, it is conceded that had there been no outstanding consent, the guardian could not have consented for her ward without an order of the probate court authorizing such consent. The written consent, therefore, of the guardian, would have been of no avail, without an order from the probate court, and we are unable to see how the mere knowledge of the guardian of the former consent and the guardian's neglect to apply to the probate court for instructions regarding it, can alter the case. The one-half of this frontage, 882.85 feet, owned by Elizabeth Pelton, imbecile, is counted against the ordinance. 18. Estate of Frederick W. Pelton, one-third of 858.50, or 286.167 feet. Frederick W. Pelton, husband of Susan A. Pelton, mentioned above, owned 858.50 feet, and by his will left one-third to his widow, Susan A. Pelton, and after his death she signed a consent. No consent was ever given for the two-thirds devised by Frederick W. to his daughters, Lucy Wenham and Elizabeth Pelton. The contention is, with regard to the one-third devised to the widow, which, by inheritance, upon her death passed the same as in No. 17, and the facts being the same in both cases, we count the one-half of this one-third, or 143.083 feet, inherited by the imbecile daughter, against the ordinance. Day v. Railway. 19. Marie Reppennagen, 98.75 feet. This consent was withdrawn in the same manner as the Fleisher consent was withdrawn, and for the reasons stated in that case, this frontage is counted against the ordi nance. James Sears' Estate, 1086.502 feet. ordinance for reasons stated in No. 8. Counted against the 21. Congregational city missionary society, 77.14 feet. Consent signed, "Congregational Church, by the authority of trustees, John G. Simon." The society first mentioned, an incorporated body, owned the property. The "Congregational church" whose signature purports to be affixed by Simon, occupied the church under some arrangement with the incorporated society, but had no title to the property. Simon was not an officer of the incorporated society and had from it no authority to sign the consent. Counted against the ordinance. 22. Frieda Schwartz Schweiger, 51.025 feet. Consent signed, "A. Schweiger," by her husband, Adolph Schweiger. The proof shows that the owner authorized her husband to sign for her, and we hold the consent should be counted in favor of the ordinance. 23. Big Four railway, 154.65. No consent was filed and this frontage is counted against the ordinance. 24. James Evans, 184.64 feet. Title to this property was originally in Mary A. S. Evans, wife of James Evans. She had conveyed the property to her husband, but his deed was not of record. The wife, with knowledge and consent of her husband, signed her own name to a consent. We count it in favor of the ordinance. 25. Orrin Wallace, one-fourth of 174.23, or 43.56 feet. Property owned in common by three brothers and a sister. Consent signed, "By authority, H. B. Wallace." Evidence shows H. B. Wallace was so authorized by one brother and the sister. He himself testifies that he also had such authority from his brother Orrin. This Orrin denies. We do not think an agency is proved by the declarations of the agent, when the principal denies the agency. The rule that the presumption is, that the council acted with sufficient consents before it, does not extend to the validity of any single consent when the validity of such consent is directly attacked. In the latter case the validity of the consent is to be determined as a fact, under the ordinary rules of evidence and applying them to this frontage we find that Orrin Wallace never consented, and this frontage is counted against the ordinance. 26. Ernst Schueneman, one-half of 45, or 22.5 feet. Ernst and Wilhelmina Schueneman owned the property, and the consent was Cuyahoga County. signed, "Mr. Ernst Wilhelmina Schueneman," by their daughter. It appears that she signed by direction of her mother; that her father was promptly informed of what she had done and never made any objection. Counted for the ordinance. 27. Katharine Ehrbar, 146.66 feet. Consent signed, "Katharine Ehrbar by F. C. Ehrbar." The latter was her husband. There is some doubt whether the signature was written by the husband or by a daughter, but there is no doubt that Katharine adopted the signature and consented. 28. George P. Geib, 410.16 feet. Two consents, one signed June 6, 1902, by Geib, and one signed August 5, 1903, by his son. No revocations. Following our holding as to No. 14, this frontage is counted as consenting. 29. Herman Stuhr, one-third of 129.44, or 43.18 feet. Annie L. Wertz owned the property, consented and died. The property descended to three heirs. Two of them signed consents. There is no evidence that the third heir, Herman Stuhr, had any knowledge that Mrs. Weitz had signed a consent and we therefore count this property against the ordinance. 30. Estate of Samuel and Susan B. Storer, four-fifths of 292.68, or 234.13 feet. There are five consents and withdrawals in this case. It is necessary to consider but three of them. Consent dated August 11, 1903, signed, "S. Storer's heirs, Mrs. Mabel Templin, executrix.' We think the proof shows that all the heirs at this time consented and authorized Mrs. Templin to sign for them. On August 14, 1903, a revocation was signed, "Mrs. Mabel Templin, Mrs. Julia Storer," with the exception as to the Cleveland Electric Railway Company. Under our previous ruling we hold this to be a revocation as to the two owners who signed it. Mrs. Templin subsequently signed another consent. Mrs. Julia Storer did not, and we count her share, or 58.536 feet against the ordinance. 31. Marcus Dennerle; Marcus and Teresa Rohrbach, land contractees, 54.06 feet. Marcus Rohrbach signed a consent which was before the council, and under our ruling in No. 15 we count his half of this frontage in favor of the ordinance, but the one-half, 27.03 feet, belonging to his wife, who did not sign, we count against it. 32. Joseph and Margaretha Oeschger, Charles Burlinghausen, land contractee, 182.89. Charles Burlinghausen having signed a consent, under the ruling in No. 15 we count this frontage for the ordi nance. |