Morgan v. Boyer. way than by mere silence and inaction, have encouraged such officers and agents to make the improvement. State v. Railway Co., 74 Mo. 163; State v. Railway Co., 31 Ark. 701; Matter of Van Buren, 17 Hun, 527, affirmed 79 N. Y. 384; Starr v. Burlington, 45 Iowa, 87; Counterman v. Dublin Township, 38 Ohio St. 515. Quinlan v. Myers, 29 id. 500, arose under a valid act, and I do not deem it necessary to consider whether the case was properly decided. But I am further of opinion, that where lot owners have said things or done acts which were intended to and did encourage the officers and agents of the corporation in making the improvement under the statute, such statute is as to them valid, and should be enforced, and it is immaterial whether they actually knew that there was any defect in the law or the proceedings under it, or were or were not specially benefited by the improvement, beyond other owners of abutting lots. MORGAN V. BOYER. (39 Ohio St. 324.) Guaranty-continuing. A guaranty in the following words: "Messrs. Morgan, Root & Co. The bearer, Mr. H. A. Bowlus, is visiting your city, buying a few goods in your line, and any thing you may be able to sell him will be paid promptly as agreed on, which I herewith guarantee. H. A. BOYER," is not a continuing guaranty.* MOT OTION for leave to file petition in error to the District Court of Seneca county. The opinion states the case. John M. Lemon, for motion. R. G. Pennington, contra. UPSON, J. The defendant, H. A. Bowlus, a merchant of Melmore, in Seneca county, had at different times purchased small quantities of goods upon credit, of the plaintiffs, partners, under the name of Morgan, Root & Co., who were merchants of Cleveland, and in order to obtain from them further credit, he procured from * See Tootle v. Elgutter (14 Neb. 158), 45 Am. Rep. 103. Morgan v. Boyer. the defendant, H. A. Boyer, of Tiffin, a written guaranty in the following words: "Messrs. MORGAN, ROOT & Co.: "TIFFIN, April 11, 1876. "Gents.-The bearer, Mr. H. A. Bowlus, is visiting your city buying a few goods in your line, and sell him will be paid promptly, as guarantee. any thing you may be able to agreed on, which I herewith "Yours respectfully, "H. A. BOYER." Bowlus delivered this guaranty to the plaintiffs about April 12, 18:6, and then purchased of them, on the faith of the guaranty, goods to the amount of $797, for which he afterward paid in full. The plaintiffs continued to sell goods to Bowlus, from time to time, until about September 20, 1879, when the balance due from him was $301.12, for which the plaintiffs brought suit against Bowlus and Boyer. The case was submitted to the Court of Common Pleas, which rendered a judgment in favor of the defendant Boyer, and this judgment was, on error, affirmed by the District Court. The plaintiffs ask leave to file a petition in error to reverse the judgment of the District Court. The principal question argued by counsel, and the only one requiring our decision, is whether the guaranty given by the defendant Boyer is a limited or a continuing guaranty. The language of guaranties is often so indefinite that their construction in this respect is difficult, and the decisions relating to such construction are very numerous and conflicting. This conflict has in many cases arisen from the difference in the surrounding circumstances and the particular language of each guaranty, but in many cases it is due to the application by the several courts of different rules to the construction of those contracts. The rules which we apply in this case are those which are in accordance with previous decisions of this court, and those which we deem to be most in accordance with well-established principles of law. The rule that the language of a promise is to be construed most strongly against the promisor can not properly be applied to the construction of a guaranty. A guarantor, like a surety, is bound Morgan v. Boyer. only by the precise words of his contract. Other words cannot be added by construction or implication, but the meaning of the words actually used is to be ascertained in the same manner as the meaning of similar words used in other contracts. They are to be understood in their plain and ordinary sense, when read in the light of the surrounding circumstances and of the object intended to be accomplished. The rule that a guarantor is held only by the express words of his promise does not entitle him to demand an unfair and strained interpretation of those words, in order that he may be released from the obligation which he has assumed. In applying these rules there has been much difference of opinion as to whether the language of a guaranty should be construed as creating a limited or a continuing guaranty, when it is fairly capable of either construction, but we are satisfied that the decided weight of authority is in favor of the rule stated by Judge STORY, that in a doubtful case the presumption should be against the construction that the guaranty is continuing. In the construction of the guaranty in this case, the plaintiffs' counsel attach much importance to the words, used in the guaranty, "is visiting," as denoting continuance, and as contemplating continuing visits. Those words however are equivalent to the word visits, and may be understood to mean visits from time to time, or visits at this time. The latter seems to be the more natural interpretation of the words used, and the one probably intended by the guarantor, for it can hardly be supposed that he intended to give a guaranty neither limited in time nor amount. Applying to the construction of this guaranty the rules which we have stated, with the aid of the surrounding circumstances, and the purpose for which it was given, we are led to the conclusion that the plaintiffs were not justified in treating it as a continuing guaranty. Motion overruled. A hackney coach stand on a public street, interfering with access to the premises of an adjoining proprietor, is a nuisance, and is not justified by a city ordinance permitting its establishment. CTION for injunction. A was The opinion shows the point. The injunction was granted below. Campbell, Bates & Bettman, for motion. Paxton & Warrington and M. F. Wilson, contra. JOHNSON, C. J. The finding of the court below that the use of Central avenue from Fourth to Third streets as a hack stand is such an unlawful interference with the use and occupation of the premises by the adjacent owner, the plaintiff, as to obstruct the avenue and render access to the store-rooms fronting thereon by the plaintiff's tenants impossible, leaves little to be said. The owner of lots abutting upon a public street in a city or village has a peculiar interest in the street, distinct from the right of the public to use the street. It is a private property right in the nature of an incorporeal hereditament attached to his contiguous grounds and the erections thereon, without which his property would be of comparatively little value. The right of access to the street for business purposes is of great value. The finding of the court is that this is destroyed. This easement appendant to the abutting property is a valuable property right of which the owner cannot be divested except when taken for public use and after due compensation. The city is clothed with power over the streets, and is charged with the duty of keeping them open for public use and free from nuisance. It may enlarge these general public uses without infringing the rights of the adjacent owner, but where additional burdens are imposed even for a public purpose, which materially impair the incidental property right of the lot owner, equity will enjoin until compensation is made. Railway v. Lawrence, 38 Ohio St. 41; VOL. XLVIII-58 Branahian v. Hotel Company. Street Railway v. Cumminsville, 14 id. 524; Crawford v. Village of Delaware, 7 id. 459. This ordinance granted a permanent use of the street for mere private uses. As well might the city authorize permanent booths or structures for the use of dealers in the various articles of trade. Having no rent to pay, the occupants could accommodate the public at better rates. The supervision and control of the public highways of a city is a public trust, and while additional uses may be imposed, not subversive of or impairing the original use, such as laying down gas and water mains, yet the rights of the public to use it as a street, and of the adjacent lot owner to enjoy it as the means of access to his property, cannot be materially impaired. The city has the right to regulate hackney coaches (R. S., § 1692), and also the right to appropriate private property for the use of the corporation, but it has no power to appropriate the easement of an adjacent owner to a mere private use. This permanent occupancy of the streets cutting off access to plaintiff's store-rooms, for the convenience and benefit of a private business, cannot be justified on the plea that the public who use hacks are accommodated more readily and on better terms. The same would doubtless be the case with other kinds of business located in the streets. The finding of the court is, that the use complained of deprives the owner of all access to his premises. Even if, as is suggested, this is in the nature of a public use, like a market, the city could not appropriate it to such use without proceeding according to law as settled in the cases already cited. The doctrine of these cases is so just. They rest upon a satisfactory foundation. The principle there settled is no longer open to discussion. Whatever criticism of that doctrine may be met with in some of the States, it has rapidly grown in favor and is now generally accepted as the true exposition of the rights of the public, and of property owners affected. The following among numerous authorities may be cited in support of the principle that the lot owner has property rights in the street in front of his property, which he has the right to have protected. A careful examination of these cases will, I think, show that while these private rights are generally conceded both in England and in all the States, the doubt was merely whether this right was property within the meaning of the Constitution, which had to be taken under the power of eminent domain, or merely gave a |