either of these eminent jurists in support of the proposition advanced by them, nor do either discuss it on principle, but seem to have taken it to be conceded as matter of course. The direct question has not heretofore been considered by this court, nor does it necessarily arise in the case under consideration; for the justice in this case did not merely decline to give an instruction which he had been requested to give, and then-submit the evidence to the jury without any instructions whatever, but he actually gave them in charge a proposition substantially the converse of that which was requested. The highest courts of the states of Iowa and Nebraska hold that an instruction given by a justice of the peace to a jury is a mere nullity that they will not review: St. Joseph Mfg. Co. v. Harrington, 53 Iowa, 380; Ives v. Norris, 13 Neb. 252. On the other hand, the doctrine in New York and Georgia is, that while a justice is not bound to instruct a jury, yet, if he does so, it must be done correctly: Bendheim v. Baldwin, 73 Ga. 594; Adams v. Clark, 64 Ga. 648; Delancy v. Nagle, 16 Barb. 96; Trustees etc. v. Thorne, 6 Hill, 326. The latter rule, we think, is the better one. Without 62 passing upon the question of the duty of a justice of the peace, to give to the jury a sound and pertinent legal proposition when he is so requested, we hold that if he does instruct them, whether pursuant to a request or not, he is bound to lay down the law correctly; for a jury are quite likely to respect the official character of the justice, and be influenced by the instructions that he may give to them under the sanction of his office.

Whether a sale of growing trees is the sale of an interest in or concerning land has long been a much controverted subject in the courts of England, as well as in the courts of the several states of the union. The question has been differently decided in different jurisdictions, and by different courts, or at different times by the same court within the same jurisdiction. The courts of England particularly have varied widely in their holdings on the subject.

Lord Mansfield held that the sale of a crop of growing turnips was within this clause of the statute: Emmerson v. Heelis, 2 Taunt. 38, following the case of Waddington v. Bristow, 2 Bos. & P. 452, where the sale of a crop of growing hops was adjudged not to have been a sale of goods and chattels merely. And in Crosby v. Wadsworth, 6 East, 601, 610, the sale of growing grass was held to be a contract for the sale of an interest in or concerning land, Lord Ellenborough saying:

"Upon the first of these questions" (whether this purchase of the growing crop be a contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them), "I think that the agreement stated, conferring, as it professes to do, an exclusive right to the vesture of the land during a limited time, and for given purposes, is a contract or sale of an interest in, or at least an interest concerning, lands."

Afterwards, in Teal v. Auty, 2 Brod. & B. 99, the court of common pleas held a contract for the sale of growing poles was a sale of an interest in or concerning lands. Many decisions have been announced by the English courts since the cases above noted were decided, the tendency of which has been to greatly narrow the application of the fourth section of the statute of frauds to crops or timber growing 63 upon land. Crops planted and raised annually by the hand of man are practically withdrawn from its operation, while the sale of other crops, and, in some instances, growing timber, also, are withdrawn from the statute, where, in the contemplation of the contracting parties, the subject of the contract is to be treated as a chattel. The latest declaration of the English courts upon this question is that of the common pleas division of the high court of justice, in Marshall v. Green, 1 C. P. Div. 35, decided in 1875. The syllabus reads: "A sale of growing timber, to be taken away as soon as possible by the purchaser, is not a contract or sale of land, or any interest therein, within the fourth section of the statute of frauds." This decision was rendered by the three justices who constituted the common pleas division of the high court of justice, Coleridge, C. J., Brett and Grove, JJ., whose characters and attainments entitle it to great weight; yet, in view of the prior long period of unsettled professional and judicial opinion in England upon the question, that the court was not one of final resort, and that the decision has encountered adverse criticism from high authority (Benjamin on Sales, sec. 126, ed. of 1892), it cannot be considered as finally settling the law of England on this subject.

The conflict among the American cases on the subject cannot be wholly reconciled. In Massachusetts, Maine, Maryland, Kentucky, and Connecticut, sales of growing trees to be presently cut and removed by the vendee are held not to be within the operation of the fourth section of the statute of frauds: Clein v. Carpenter, 4 Met. 580; 38 Am. Dec. 381; Nettleton v. Sikes, 8 Met. 31; Bostwick v. Leach, 3 Day, 476;

Erskine v. Plummer, 7 Me. 447; 22 Am. Dec. 216; Cutler v. Pope, 13 Me. 377; Cain v. McGuire, 13 B. Mon. 340; Byasses v. Reese, 4 Met. (Ky.) 372; 83 Am. Dec. 481; Smith v. Bryan, 5 Md. 141; 59 Am. Dec. 104. In none of these cases except Byassee v. Reese, 4 Met. (Ky.) 373, 83 Am. Dec. 481, and in Cain v. McGuire, 13 B. Mon. 340, had the vendor attempted to repudiate the contract before the vendee had entered upon its execution, and the statement of facts in those two cases do not speak clearly upon this point. In the leading English case before cited, Marshall v. Green, 1 C. P. Div. 64 35, the vendee had also entered upon the work of felling the trees, and had sold some of their tops before the vendor countermanded the sale. These cases, therefore, cannot be regarded as directly holding that a vendee, by parol, of growing timber to be presently felled and removed, may not repudiate the contract before any thing is done under it; and this was the situation in which the parties to the case now under consideration stood when the contract was repudiated. Indeed, a late case in Massachusetts, Giles v. Simonds, 15 Gray, 441, 77 Am. Dec. 373, holds that "the owner of land, who has made a verbal contract for the sale of standing wood to be cut and severed from the freehold by the purchaser, may at any time revoke the license which he thereby gives to the purchaser to enter on his land to cut and carry away the wood, so far as it relates to any wood not cut at the time of the revocation."

The courts of most of the American states, however, that have considered the question, hold expressly that a sale of growing or standing timber is a contract concerning an interest in lands, and within the fourth section of the statute of frauds: Green v. Armstrong, 1 Denio, 550; Bishop v. Bishop, 11 N. Y. 123; 62 Am. Dec. 68; Westbrook v. Eager, 16 N. J. L. 81; Buck v. Pickwell, 27 Vt. 157; Cool v. Peters Box & Lumber Co., 87 Ind. 531; Terrell v. Frazier, 79 Ind. 473; Owens v. Lewis, 46 Ind. 488; 15 Am. Rep. 295; Armstrong v. Lawson, 73 Ind. 498; Jackson v. Evans, 44 Mich. 510; Lyle v. Shinnebarger, 17 Mo. App. 66; Howe v. Batchelder, 49 N. H. 204; Putney v. Day, 6 N. H. 430; 25 Am. Dec. 470; Bowers v. Bowers, 95 Pa. St. 477; Daniels v. Bailey, 43 Wis. 566; Lillie v. Dunbar, 62 Wis. 198; Knox v. Haralson, 2 Tenn. Ch. 232.

The question is now, for the first time, before this court for determination; and we are at liberty to adopt that rule on the subject most conformable to sound reason. In all its

1

other relations to the affairs of men, growing timber is regarded as an integral part of the land upon which it stands; it is not subject to levy and sale upon execution as chattel property; it descends with the land to the heir, and passes to the vendor with the soil: Jones v. Timmons, 21 Ohio St. 596. Coal, petroleum, building-stone, and many 65 other substances constituting integral parts of the land, have become articles of commerce, and easily detached and removed, and, when detached and removed, become personal property, as well as fallen timber; but no case is found in which it is suggested that sales of such substances, with a view to their immediate removal, would not be within the statute. Sales of growing timber are as likely to become the subjects of fraud and perjury as are the other integral parts of the land, and the question whether such sale is a sale of an interest in or concerning lands should depend, not upon the intention of the parties, but upon the legal character of the subject of the contract, which, in the case of growing timber, is that of realty.

This rule has the additional merit of being clear, simple, and easy of application, qualities entitled to substantial weight in choosing between conflicting principles.

Whether circumstances of part performance might require a modification of this rule is not before the court, and has not been considered.

STATUTE OF FRAUDS-SALE OF STANDING TIMBER.-Contracts for the sale of standing timber are contracts for the sale of an interest in land, and must be in writing under the statute of frauds: Owens v. Lewis, 46 Ind. 488; 15 Am. Rep. 295; Slocum v. Seymour, 36 N. J. L. 138; 13 Am. Rep. 432. Trees growing on land so far partake of realty that any contract for their sale is within the statute of frauds; yet if the contract is in contemplation of their severance, whereby they become personalty, the same rule in respect to the identification of personal property is applicable: Carpenter v. Medford, 99 N. C. 495; 6 Am. St. Rep. 535. This question is fully discussed in the extended note to Kingsley v. Holbrook, 86 Am. Dec. 182, and Purner v. Piercy, 17 Am. Rep. 595.

COLUMBUS GAS LIGHT AND COKE Co. v. COLUMBUS.

[50 OHIO STATE, 65.]

MUNICIPAL Corporations-CHANGE OF GRADE OF STREETS. —Under a statute declaring that the council of a city shall have the care, supervision, and control of all public streets, and shall cause them to be kept open and in repair, such council may change the grade of a street. already improved without creating any liability against the municipality in favor of a corporation having gas-pipes in the street under an easement granted to it by the city, and which pipes must necessarily be taken up and relaid as a consequence of the change in the grade. A MUNICIPAL CORPORATION CANNOT ABROGATE ITS OWN POWER.-There fore any grant of an easement to lay pipes in a street is subject to the legislative power of the municipality over such street. MUNICIPAL CORPORATIONS-DAMAGES FOR Change of Grade of.-A gas

company which has been granted the right to lay and maintain its pipes in a public street does not thereby acquire an easement to maintain them in the place where they are so laid, and therefore cannot recover damages resulting from a subsequent change in the grade of the street, the consequence of which will be the taking up and relaying of such pipes. MUNICIPAL CORPORATIONS-EASEMENTS IN PUBLIC Streets.-The grant ing of a right to lay and maintain pipes in a public street must be interpreted in the light and duty of the city to regrade whenever, in its judgment, the public interests demand, and the easement must be accepted and received in common with equivalent rights which have been acquired by other public agencies, rights of a secondary character, and all must give way to the paramount duty of the city to care for the streets and keep them open, in repair, and convenient for the general public.

ACTION by the plaintiff in error to recover damages sustained from a change in the grade of a street. The defendant interposed a demurrer to the complaint, and the only question was whether such complaint stated a cause of action. It was in the words and figures following:

"The plaintiff, the Columbus Gas Light and Coke Company, is a corporation duly organized under the laws of this state, for the purpose of supplying gas for lighting the streets and public and private buildings of the city of Columbus. The defendant, the said city of Columbus, is a municipal corporation of this state, located in Franklin county, and organized as a city of the first grade of the second class.

"The plaintiff is, and, for more than thirty years last past. has been, the owner of a certain easement or right in the public streets and alleys of the defendant, duly and for sundry valuable considerations granted by the defendant to the plaintiff, to wit: The right to lay and maintain its pipes in