True American. [volume] (Steubenville [Ohio]) 1855-1861, 1855-01-11
Supreme Court of Ohio.

l. The statue for the relief of occupy
ing claimants, passed March 10, 1881, re-
quiring the value of the permanent i'm
provcments of the bona fde occupant
under color Of title, to be paid as a condi-
ton precedent to the entry and possession
of the owner, although an encroachment
on the rights of the private property as
settled by the common law, rests upon a
strong equity in favor of compensation
for improvements, which have augmented
the value of the land, and Injured to the
benefit of the owner.
,. The option, which this law gives to
the owner of land, after a recovery in
ejectmcnt, either so take the land on pay
ing for the improvements, or to take the
amount of its value in money without the
improvements, secures to the owner the
property in the land, and at the same time
protects the occupying claimant in his equi-
table claim, to a compensation for his i'm
provcmcnts.
8. But the amcndatory act of lS40, CIV
ing to the occupying claimant the option,
which the original act gave to the owner
of the land, thus taking the property away
from the owner after the solemn form of
recovery and judgment in ejectment, and
transferring it to his unsuccessful adversa-
ry, who is ordered to be elected as an in
truder on the land, is palpable invasion
of the right of private property.
4. In case of a mortgage, a judgment
lien, levy under an execution, assessment
of tax, or other incumbrance on land
arising out of the owners liabilities, it is
not within the scope of the legislative
power, to take the fee in the land from the
owner, and transfer it absolutely to the
person holding the claim, while the owner
stands ready and insists on discharging the
liability and saving his property.
5. The competency of the legislative
power to transfer the property of one per-
son to another, without the consent of the
former, is not shown by any analogy, ei-
thef to proceedings in partition, or the bar
of the statute of limitation. In the case
of the former, although the right of parti-
tion is an incident to the estate of tenancy
in common, and the division the result of
necessity, yet the owner is not divested Of
his property, without the opportunity Of
saying it, by purchase and in the case
of the latter, the bar of the statute rests
upon arule of evidence, raising prcsump-
ton that the title has passed, and upon
this ground the aid of the judicial power is
denied to one who has slept too long on his
rights.
6. The occupying claimant law rests
upon entirely different ground; and in Sc
curing to the occupant compensation for
his improvements, as condition precedent
to the restitution of the property to the
owner, it goes to the utmost stretch of the
Legislative power touching the subject
And the amendatory act of 1919, provi-
ding for the transfer of the land to the oc-
cupying claimant without the consent of
the owner, is in plain conflict with the 10Th
section of the 1st article of the constitution,
which declares that "private property shall
ever be held inviolate," &c., and is, there
fore, by the unanimous opinion of the
Court, pronounced unconstitutional and
void.
The proceedings of the Common Pleas
reversed, and cause remanded.
George T. Thomas, vs.. the Administra-
tor of W. P. Miles, deceased. Error to
the District Court of Hamilton county.
Ranney J.
T. and NJ, partners in trade in the city
of G., agree to dissolve partnership; NJ,
the party retiring from the establishment,
binding himself that he shall not within
five years enter into nor be concerned in
the kind of business conducted or carried
on by the said firm, nor any branch thereof
within the said city, nor interfere in any
way with any agency before established by
the firm, nor establish any similar agency
that may interfere or compete with any
agency of the firm or of the party succeed
ing to its business upon its dissolution,
whether such agencies be established in the
said city or elsewhere. Held.
|. That such q contract was reasonable
and proper, so far as it restrained M. from
engaging for limited time in the city Of
G. in the business heretofore pursued by
the firm.
2. But so far as it attempts to prevent
NJ. from interfering or competing with any
branches that T. might establish, at any
and all other places, it is clearly opposed
to public policy, and is therefore void.
8. Such a covenant is diviSible, and il
does not constitute a breach of its lcga