Lawrence Lewis.

American and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] online

. (page 40 of 73)
Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 40 of 73)
Font size
QR-code for this ebook

were confined, of course, to the highway as described in the
petition. The verdict and final order have refer- hiohwat des.
ence to this highway. Unless the proof showed TfoSfvASAB^Ts'
that this had become a public highway by twenty years' use,
the case failed, and a new trial should have been granted.
The petition describes the beginning of the highway as com-
mencing at the north end of the road running through
Wilson's second addition of out lots to the City of LaPorte,
being 275, 75-100 feet east of the southwest corner, of west
fractional part of section thirty-four, etc. The evidence
shows that the highway does begin at the north end of the

Digitized by



road running through Wilson's said addition, but that this
road at that point is 285 i-io feet east of the said corner, as
measured by the witness. The north end of the road
through Wilson's addition seems to be well known, and is
the visible monument by which the beginning of the alleged
highway should be determined, rather than the measure-
ment from the comer of the section of land.

It is easy to mistake, in the measurement, but it is not likely
that there would be any mistake about the Wilson road.
The petition and the evidence agree that there was a high-
way commencing at the north end of the Wilson road. They
only disagree as to the distance of the north end of that
road from the named corner of land. This is not such a
variance as ought to overthrow the proceeding. Gray v.
Stiver, 24 Ind. 174; Simonton v. Thompson, 55 Ind. 87;
Hedge v. Sims, 29 Ind. 574.

In the Circuit Court appellants filed what purports to be,
opekwo moH- and what they style, an answer in bar of the pro-

"WAT. SUFTICI- ,..11 . ^

ExcnroFAKswKE ceedmg, m substance, that at a previous term of
the county board, appellees had petitioned for the location
and opening of a highway, upon the line of the highway that
they here seek to have entered of record, and that upon that
petition and a report of viewers the board adjudged that the
proposed highway would not be of public utility, and should
not be opened, and that the judgment remained in full force.

If this answer is sufficient to bar this proceeding, it was
error to sustain the demurrer to it If it does not con-
stitute such a bar, it was not error to sustain the demurrer to
it, whatever weight the facts set up might be entitled to for
any purpose, other than as a bar to the proceeding.

That the county board may have refused to open a new
highway upon the line of that here sought to have entered of
record as an existing highway, surely cannot bar this pro-
ceeding. The proceedings are entirely dissimilar. One
goes upon the theory that there is no highway, and that
one should be opened; the other goes upon the theory
that there is an existing highway, and that no action by the
county board nor any other authority is necessary to estab-
lish it. In the latter proceeding, the county board is not
asked to locate and open a new highway, but simply to
^^certain, describe, and enter of record one already existing

Digitized by



and open for travel. The board might well refuse to order
a highway to be established and opened upon the line, of an
existing highway without debarring itself or others of the
right to have the existing highway entered of record. Re-
fusing to order a highway located upon the line of an exist-
ing highway will not vacate the existing highway.

It is contended in argument that appellees might have
joined, in their petition for the location and opening of the
highway, an application such as that made in this case, and
that as they did not do so they are estopped to institute and
maintain this proceeding. It would seem to be an inconsistent
proceeding to join in the same petition an application to have
a highway entered of record as an existing highway, and
also an application to have a new highway opened upon the
same line. The contention cannot be maintained.

One question remains. It is contended that the question
of public utility is a material question here, and that that
question was adjudicated in the former proceeding. When
a highway has been established and opened by the p^^^^^ utilitt
county board there is no longer involved, any ^SkTiS^I^^^
question of public utility. So when a way has be- ^'^"**'
come a public highway by use it is such regardless of
any question of public utility, and it will remain such
until it shall be vacated in a proper proceeding or by non-
user, and that, too, whether entered of record or not.
The order for entering of record is not the establisment of a
highway, but an adjudication of the fact that there is already
such a highway. If indeed there is no such highway, the
order will have the effect of establishing one, but this is not
the purpose or theory of the order or proceeding.

It must follow that the question of public utility in a pro-
ceeding like this cannot in any way constitute a bar to the

There was no error, therefore, in sustaining the demurrer
to the answer. As we find no available error in the record,
the judgment is affirmed with costs.

Digitized by



Zimmerman v. Canfield et al.
Zimmerman v. Prickett et oL

(42 Ohio State, 463.)

Section 4452 (Rev. Stats.), which authorizes the county commissioners to
view the line of a proposed ditch, and determine, by actual view of the
premises along and adjacent thereto, whether the ditch is necessary, or
will be conducive to the public health, convenience or welfare, invests the
commissioners with political and not judicial powers, and notice of such
proceedings to the owners of lands crossed by the ditch is not essential to
the validity of such enactment or of such proceedings thereunder.

Sections 4461, 4471 and 894 (Rev. Stats.) authorize the payment of
money out of the county treasury as compensation for lands taken for a
county ditch, within the meaning of section 10 of the bill of rights, which
ordains that : *' When private property shall be taken for public use, a
compensation therefor shall first be made in money, or first secured by
deposit of money."

The statutes relating to county ditches, in force in the year 1881, were
valid and constitutional enactments.

In an action by a resident owner of land crossed by the line of a pro-
posed ditch, who has neither notice nor knowledge of such proceeding
prior to the hearing upon the engineer's report, to enjom the construction
of the proposed ditch, it is error in the court to send the proceedings
before the commissioners for hearing upon the plaintiff's claim for com-
pensation and damages, and leave the commissioners at liberty to proceed
with the construction of the ditch without regard to whether his compen-
sation for lands taken be first made in money or first secured by deposit
of money, as required by section 19 of the bill of rights,

Error to the District Court of Fulton county.

These cases are considered together. The first was one to
enjoin the construction of a proposed ditch about eight miles
in length, seventeen rods of which crossed the plaintiff's lands
seven miles below the initial point and about one mile above
the outlet.

The object of the second was to enjoin all proceedings upon
a petition to locate and construct a ditch across the plaintiff's
land along the route of the proposed ditch involved in the
first case.

In the first case the proceedings were regular, except that
the plaintiff (who was a resident of the county) had no notice
or knowledge of the ditch proceedings prior, to the hearing of

Digitized by



the engineer's report. The proceedings were under the
statutes in force in 1880 as amended in 1881 (78 O. L. 204-210).

A preliminary injunction was allowed by the probate judge
against all work on the ditch. A judge of the court of com-
mon pleas dissolved the injunction as to all of the ditch except
that crossing the plaintiff's lands.

Two judges of the district court modified this last order by
restraining the construction of the ditch above and across the
plaintiff's land ; leaving the part below to be completed.

Thereupon the second petition was filed with the commis-
sioners, to establish a ditch across plaintiff's land of the same
dimensions as the first proposed ditch.

Before the time for hearing this second petition plaintiff
filed another petition for an injunction, which is the second of
the above mentioned cases, upon which a preliminary injunc-
tion was allowed.

Upon trial in the common pleas both injunctions were dis-
solved, except so much of the first as related to the seventeen
rods across plaintiff's land, which was held in force until his
damages, if any, were legally ascertained and paid.

Upon appeal, the district court found the foregoing facts
and that the ditch was necessary and would be conducive to
the public health, convenience and welfare, and proceeded to
make the following order :

" And the court upon the conclusions of fact and law afore-
said, do order, adjudge and decree: That said county com-
missioners shall and they are hereby ordered, to give said
plaintiff an opportunity to be heard before them and to pre-
sent any claim for compensation or damages that he may have
or sustain by reason of the construction of said ditch, and said
commissioners shall give him such notice of the time and
place, when and where such hearing is to be had, and claim
to be presented, as is prescribed by statutes in case of pro-
ceedings to establish ditches by county commissioners ; and
plaintiff shall have the right of appeal and all other remedies,
as is provided by said statute, upon said question of compen-
sation and damages, and no other question shall be heard by
said commissioners or upon such appeal. It is further con-
sidered, that the injunction heretofore granted in this case be
and the same hereby is dissolved, and said plaintiff shall have
and recover his costs in this case, taxed at $— , which shall be

Digitized by



paid by said County of Fulton, upon the warrant or order of
the auditor thereof. It is ordered that the further construc-
tion of this ditch and all proceedings to establish the same or
to ascertain said damages or compensation shall be delayed
for sixty days. To all and each of which action, rulings and
judgment of said court said plaintiff then in due form ex-

Pratt & Bentley and W. C. Kelly for plaintiff in error.

Henry Newbegin representing parties having like interests
as plaintiff in error.

Owen, J. — i. It is maintained by the plaintiff (i) that the
statutes in force in 1881, under which the commissioners
were proceeding, were unconstitutional and void, and (2) that
the order of the district court directing proceedings before
the commissioners was unauthorized.

One of the g^rounds relied upon to support the first propo-
r.^w«-.,,^w sition is that these statutes were in contravention


Sr?I«lif^ of section 19 of the bill of rights of the constitu-
^^"'* tion of Ohio, which ordains that : *' Where private

property shall be taken for public use, a compensation there-
for shall first be made in money, or first secured by a deposit
in money, and such compensation shall be assessed by a jury."

It is contended that the legislation in question failed to
provide for payment or deposit of compensation in money
before the lands are " taken " by the construction of the
ditch. The Revised Statutes, § 4461, provides that: "The
commissioners shall, upon actual view of the premises, fix and
allow such compensation for lands appropriated, ... to each
person or corporation making application as provided in the
preceding section." . . .

By this provision the commissioners are called upon to do
two things : First to " fix " the amount of compensation,
and second to " allow" it.

Let us inquire what it is to allow a sum of money which
"ALLOWING" A has been " fixed," that is, determined upon by the
ooMPEMBATioK. commissiouers.

Section 894 (Rev. Stat.) provides that : '* No claims against
the county shall be paid otherwise than upon the allowance
of the county commissioners, upon the warrant of the county
auditor, except in those cases in which the amount due Is

Digitized by



fixed by law, or is authorized to be fixed by some other per-
son or tribunal, in which case the same shall be paid upon the
warrant of the county auditor, upon the proper certificate of
the person or tribunal allowing the same ; but no public
money shall be disbursed by the county commissioners, or
any of them, but the same shall be disbursed by the county
treasurer, upon the warrant of the county auditor specifying
the name of the party entitled to the same, on what account
and upon whose allowance, if not fixed by law."

When the commissioners have caused to be entered upon
their journal an order fixing and allowing the amount of
compensation to a land owner who has made application
therefor, they have exhausted their powers, and it only re-
mains for the county auditor to draw his warrant on the
county treasurer for the sum so allowed. •

If an appeal is taken from the allowance of the commis-
sioners to the probate court, and " the verdict of the jury be
in favor of the appellant, the commissioners shall cause to be
made on their journal an entry carrying out the findings of
the jury," etc., §4471.

How may the commissioners "carry out the findings of
the jury" except by the allowance of the amount of the com-
pensation found by the jury ? Whether the amount of com-
pensation for lands taken be " fixed " by the commissioners
or ** found " by the jury, the provision for first paying or
depositing the compensation in money is ample ; and it is no
answer to this to say that the particular fund to be drawn
upon is not designated.

The case of Ohio ex reL McConahey v. Seaman, 23 Ohio St
389, where it was held that orders drawn on the county treas-
urer for the cost of constructing a ditch were not payable
out of the general county fund, has no application to the
present case.

It is to be supposed that when the commissioners enter
upon the location and construction of a ditch which must in-
volve the " taking" of lands, they do so in contemplation of the
fact that compensation for lands so taken must, if applied for,
be first paid or dep)osited, and it seems clear that if no other
fund is provided, nor payment or deposit otherwise made by
those to be benefited by the ditch, the general county fund is
to be resorted to. Ample provision is made to reimburse

9 Cor. Gas.— 25

Digitized by



this fund. Section 4479 provides for assessments on benefited
lands to raise the amount of compensation and damages, and
section 2834 provides for the transfer of these special funds
so raised to the general fund.

The position contended for, that the allowance by the com-
missioners or even the drawing of his warrant by the auditor
is neither the payment nor deposit of money in the sense m
which these terms are employed in the bill of rights, is not
well taken. There is no complaint that the county was in-
solvent, nor that for any other cause the warrant of the audi-
tor would not be honored.

The solvency of the State and of her municipal subdivis-
ions is presumed in the absence of a showing to the contrary.
Talbot V. Hudson, 16 Gray, 431; Hill v. United States, 9
How. 386; Long V. Fuller, 68 Pa. 170; Yost*s Report, 17 Pa.
524; Mills on Eminent Domain, § 126.

This question was considered by the supreme court of
Indiana in Rudisill v. State, 40 Ind. 490, where it is said:
" The author is authorized to draw his warrant upon the treas-
urer for a sum allowed or certified to be due ... by the
board of county commissioners. We are of the opinion that,
when the amount of damages is ordered to be paid out of the
county treasury, as in this case, the commissioners may treat
the case as one where the amount it deposited in the treasury
for the use of the parties entitled to the same." It is not easy
to conceive how a more eflScient scheme can be devised for
either the payment or deposit of money for compensation for
lands taken, then the statutes in question have provided.

2. It is further maintained that the statutes under considenu

tion are in contravention of the constitution, for

5S?^B d5^' the reason that no notice is provided of the hear-

^*"**" ing of the petition for the ditch. That it is the fil-

ing of this petition which confers upon the commissioners
jurisdiction to act, and that the failure of the statutes to pro-
vide for notice of the hearing of such petition, and permitting
the commissioners to proceed to " find for the improvement**
without giving parties to be afifected by the improvement
their day in court is fatal to the validity of the statutes.

It is not denied that opportunity is afforded to all parties
affected by the ditch to be heard upon appeal in the probate

Digitized by



court; and this leads to the inquiry whether they are
entitled to such hearing in the first instance.

The proposition contended for contemplates that the com-
missioners, in determining upon the necessity of the ditch or
whether it will conduce to the public health, convenience or
welfare, are acting judicially.

Section 4452 provides that the commissioners, upon receiv-
ing a copy of the petition, shall proceed at once to view the
line of the proposed ditch and determine by actual view
whether it is necessary, or will be conducive to the public
health, convenience or welfare, and whether the line de-
scribed is the best route.

Section 4453 provides that if the commissioners shall find
against the improvement, they shall dismiss the petition and
proceedings at the cost of the petitioners.

By section 4454, if the commissioners find for the improve-
ment, they shall direct a survey, etc., of the line described in
the petition. Up to this point in the proceedings, none of
the interested parties except the petitioners for the ditch
have notice. So far the proceedings are preliminary. The
State has delegated to the commissioners so much of her
power of eminent domain as is necessary to determine
whether the construction of the ditch is so far a public neces-
sity as that it is demanded by consideration of public health,
convenience, or welfare. There is nothing in the constitu-
tion of our State which guarantees to the owners of lands
traversed by a ditch a trial by jury, or other judicial investi-
gation, to determine upon its necessity or whether it will
conduce to the public good.

While the statutes in question do provide for such a heai^
ing upon appeal, it is so rather as a matter of favor than of

The commissioners, in determining this preliminary ques-
tion of the necessity of appropriating lands for the appropwatwo
purposes of a ditch, are called to the exercise of kmbciS?*^ ©J
political and not judical powers. It is a question »"«•
rather of public policy than of private right. McMiken v.
City of Cincinnati, 4 Ohio St. 394; Giesy v. Railroad Co., 4
Ohio St. 325; People v. Smith, 21 N. Y. 597; Bowersox v.
Watson, 20 Ohio St. 507 ; Mills's Eminent Domain, §11;

Digitized by



Cooley's Constitutional Limitations, 528 ; Kramer v. C. & P.
Railroad Co., 5 Ohio St. 146.

It is not upon the question of the appropriation of lands
for public use, but upon that of compensation for lands so
appropriated, that the owner is entitled, of right, to a hearing
in court and the verdict of a jury.

What remedies the courts afford for the perversion or abuse
of this power of appropriation we are not now called upon to

3. The remaining constitutional objections to these statutes
are predicated upon the assumption that all proceedings look-
ing to the appropriation of lands for ditch purposes are judi-
cal in their nature, and that the owner is entitled to a jury trial
or other judical investigation, and are suflBciently answered
by the conclusions already declared.

4. It is also assigned for error that, even if the statutes in
question are valid, the district court erred in ordering the
proceedings before the commissioners for hearing upon any
jtoSwn'® nl cJ^i"^ of the plaintiff for compensation and dam-
mSKSSiif™* ages; and in dissolving the injunction theretofore
granted in the case, and staying the proceedings to establish
the ditch for only sixty days.

It is maintained by the defendants that this order was war-
ranted by section 4491, which provides that: "The court in
which any proceeding is brought ... to declare void the
proceedings to locate or establish any ditch .... shall, if
there is manifest error in the proceedings, allow the plaintiff
in the action to show that he has been injured thereby. . .
The courts in which any such proceedings are begun shall
allow parol proof that said improvement is necessary and will
be conducive to the public health, convenience, or welfare,
. . . and without finding error, the court may correct any
gross injustice in the apportionment made by the commission-
ers ; the court shall, on final hearing, make such order in the
premises as shall be just and equitable," etc.

How far this provision may authorize the court to cure
jurisdictional defects in the proceedings of the commissioners
by ordering proceedings, in their nature de novo, in which
the plaintiff would be permitted to make every claim and
assert every right allowed to hini in case of notice of the orig-
inal proceedings, or whether it was the duty of the district

Digitized by




court to proceed in the case before it, to administer such re-
lief, we need not now inquire.

No opportunity had been afforded the plaintiff to claim or
prove compensation and damages.

The court dissolved the injunction theretofore granted, and
thus left the commissioners entirely at liberty to proceed
(after the expiration of the sixty days for which proceedings
were stayed) with the construction of the ditch across the
plaintiff's land regardless of whether his compensation
should " first be made m money, or first secured by a deposit
of money" (as required by section 19 of the bill of rights). In
this there was error for which the judgment of the district
court is reversed.

Judgment will be entered enjoining all further proceedings
until the ditch is legally established.

5. In the second case, the commissioners, when their pro-
ceedings were enjoined, were proceeding to act upon a peti-
tion for a ditch across the plaintiff's lands along SS^n£?Sf!
the identical route, and of the same dimensions, of
the ditch involved in the first case. It represented J^T
that a large extent of country above was in need of drainage
and would be drained by the proposed ditch. It was alleged
by the plaintiff that this second ditch proceeding was the re-
sult of a conspiracy between the commissioners and the peti-
tioners to ignore and defeat the injunction against the first
ditch proceedings.

So far as the proceedings for the last ditch had progressed,
they were regular.

The district court found the facts which embraced the pro-
ceedings in the first case up to that time, and then stated their
conclusions of law, and ordered as follows :

" And the court upon the facts aforesaid, and those admitted
in the pleadings herein, find as matters of law, that it is not a
question material for the introduction of testimony, whether
or not there was any conspiracy between the county commis-
sioners and said petitioners for said shorter ditch, or what the
motives of said parties might have been or were ; that the
plaintiff began this action for an injunction prematurely, and
that for the matters complained of in his petition, he has an
adequate remedy at law by hearing before said county com-
missioners, and an appeal thence to the probate court of said

Digitized by



county. That the statutes of the State of Ohio relating to the
establishment of county ditches under which the proceedings
complained of in this action were had, are not in conflict with
the constitution of the State of Ohio."

Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 40 of 73)