Opinion Per Curiam.

KELLEY ET AL. V. ARMSTRONG ET AL.

Pleadings-Jurisdiction of subject-matter-Title to roadway— Easement Adverse possession-Fee simple estate not acquired, when.

(No. 16714-Decided June 7, 1921.)

ERROR to the Court of Appeals of Hamilton county.

Messrs. Dolle, Taylor, O'Donnell & Geisler, for plaintiffs in error.

Mr. M. Muller and Mr. Thos. L. Michie, for defendants in error.

BY THE COURT. The object of pleadings, in addition to invoking the jurisdiction of the court, is to inform the parties of the respective claims of each and of the issues for determination at the trial.

Measured by this definition it is exceedingly doubtful whether the pleadings in this case make an issue as to the title to the 40-foot roadway, for the same right exists in the plaintiffs to protect the easement against damage by the diversion of the water course that exists to protect the fee against damage by diversion of the water course. But assuming that the court, regardless of the pleadings, had jurisdiction of the subject-matter of the title to the land included in the 40-foot roadway, upon the theory that the jurisdiction of the court invoked in an equity case attaches for all purposes necessary to afford complete relief, which does not seem apparent in this case, we have been unable to find any

Opinion Per Curiam.

evidence in the record of the use of the east 30 feet of the roadway by the defendants in error inconsistent with their right to do so under the easement running with the title to lots 19, 20, 21 and 25, except as to the land actually covered by the small wagon-shed north of where the creek crosses the roadway, and the exclusive open and adverse use inconsistent with the easement of that small portion of the roadway could not be effective to convert into an adverse and exclusive use the use of the entire roadway consistent with the easement.

Where a right to use is conferred by grant, any use reasonably consistent with such grant will be referable to such grant and will not be deemed ad

verse.

For these reasons the judgment of the court of appeals is reversed and the cause remanded for further proceedings according to law consistent with the protection of the easement of the defendants in error in the east 30 feet of the roadway as platted along the entire east side of lot 17.

Judgment reversed, and cause remanded.

MARSHALL, C. J., JOHNSON, HOUGH, WAnaMAKER, ROBINSON, JONES and MATTHIAS, JJ., con

cur.

Statement of the Case.

THE CITY OF YOUNGSTOWN v. STURGESS.

Municipal corporations - Negligence - Bridges and approachesCare, supervision and control-Section 3714, General CodeBridge on county or state road in city-County to construct and repair - Municipality to safeguard travelers-Liability for nuisances.

1. Where a bridge has been constructed by county commissioners upon a state or county road over a stream within the limits of a city, the city is nevertheless liable under the provisions of Section 3714, General Code, for damages to any person suffering injuries by reason of a nuisance being maintained upon any such bridge or the approach thereto.

2. The county primarily is obligated to construct and repair bridges upon state or county roads and the approaches thereto over streams within the limits of municipalities, but municipalities are not thereby relieved from their obligation to keep such bridges and the approaches thereto "open, in repair and free from nuisance;" neither are such municipalities relieved from the duty to safeguard travelers upon such structures within the limits of municipalities against dangerous defects amounting to a nuisance.

(No. 16476-Decided June 14, 1921.)

ERROR to the Court of Appeals of Mahoning county.

Within the limits of the city of Youngstown, Ohio, Market street crosses the Mahoning river by means of a bridge or viaduct known as Market street bridge, and at least a portion of the approach to the bridge is less than six feet in height and unprotected by guard rails. Market street, where it crosses the Mahoning river in Youngstown, is a part of one of the county roads of Mahoning county. The petition filed by Emily Sturgess in this cause in the court of common pleas of Mahoning county

Counsel for Plaintiff in Error.

alleges that at a point on Market street upon one of the approaches to the bridge, and where the approach or embankment is less than six feet in height, near the intersection of East Front street, the embankment is unprotected by guard rails, and that while she was walking along the sidewalk of the viaduct she fell to the pavement below, suffering certain injuries. The suit was brought against the city of Youngstown and also against the county commissioners of Mahoning county, it being claimed that there was a joint liability for negligence for failure to properly guard said approach or embankment.

The county commissioners had built the bridge and the approaches upon one of the county highways. The city was using the bridge and the viaduct as one of the streets of the city, and it appears that the street is much traveled by the inhabitants of the city. The negligence charged in the petition against both defendants is the failure and neglect to extend the guard railing to the end of the viaduct.

On the morning of the trial the plaintiff dismissed the cause as to the county commissioners. The trial proceeded against the city and a verdict was rendered for $1,000. The judgment on the verdict was affirmed by the court of appeals, and the cause was admitted to this court on motion to certify.

Mr. J. H. Leighninger, city solicitor, for plaintiff in error.

Opinion, per MARSHALL, C. J.

Mr. J. H. C. Lyon and Messrs. Anderson, Matthews & Wall, for defendant in error.

MARSHALL, C. J. This cause involves a construction of several statutes. So far as the city of Youngstown is concerned, its liability must be by virtue of the provisions of Section 3714, General Code, as follows: "Municipal corporations shall have special power to regulate the use of the streets, to be exercised in the manner provided by law. The council shall have the care, supervision and control of public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts, and viaducts, within the corporation, and shall cause them to be kept open, in repair, and free from nuisance."

The foregoing language is very clear and specific and leaves no doubt of the liability of the city for injuries occurring to persons lawfully passing along and over the streets, sidewalks, bridges, aqueducts and viaducts within the corporation, due to the failure to keep all such ways in repair and free from nuisance, unless relieved from such duty and liability by some other statutory provisions. It is claimed by counsel for the city that inasmuch as the city of Youngstown has not received any portion of the bridge fund of Mahoning county, it owes no duty or liability to expend any money upon this bridge or the approach thereto, which was built by the county. As one of the grounds of this contention we are referred to the provisions of Section 7563, General Code, as follows: