
    George D. Harter Bank of Canton, Trustee, et al. v. Muskingum Watershed Conservancy District.
    (Decided October 10, 1935.)
    
      Mr. Paul J. Gnau, for plaintiffs in error.
    
      Messrs. Wilkin, Fisher $ Limbach and Mr. J. E. Patrick, for defendant in error.
   Lemert, P. J.

This cause, comes into this court on petition in error from the Court of Common Pleas of Tuscarawas county. The plaintiffs in error were defendants below, and defendant in error was plaintiff below. The Muskingum Watershed Conservancy District, as plaintiff, filed its petition against the defendants seeking to appropriate approximately six and one-half acres of land described in the petition, the plaintiff reciting in its petition that it was necessary for it to acquire the premises in carrying out the plans and objects of the district, and, more particularly, in connection with the construction of the Dover Dam.

The defendant, Frank G-. Hoover, filed his answer denying that the court had jurisdiction of the subject-matter, and denying that the conservancy district had authority to appropriate the property described in its petition; denying that the property was necessary in carrying out the plans and objects of the conservancy district and further denying that it was necessary for the construction of the Dover Dam.

The answer affirmatively averred that the plaintiff sought to appropriate the property for a purpose which is not a public use, contrary to the constitutions of the state of Ohio and of the United States of America, and averred further that the plaintiff sought to appropriate the property for the use and benefit of a railroad corporation for profit.

The case was tried in the Court of Common Pleas before a jury, resulting in a verdict in favor of the defendant, George D. Harter Bank of Canton, as trustee, etc., in the sum of $8,178.

The record in this case discloses that the Boy Scout Organization of McKinley Area, comprising a large portion of Tuscarawas, Wayne, Carroll and Stark counties, Ohio, maintained for many years a camp known as Camp Tuscazoar, located upon the Tuscarawas river in Fairfield township, Tuscarawas county, Ohio. The tract consisted of approximately one hundred and sixty-five acres, beautifully located near a bend in the Tuscarawas river, which was selected for its purposes because of its great and unusual natural beauty; its isolation from outside influences, and its historical value and special interest because of the natural growth of trees and unusual rock formations, all of which were factors in making it an ideal location for the Boy Scouts organization.

On the 13th day of April, 1935, Muskingum "Watershed Conservancy District filed its petition in the Court of Common Pleas of Tuscarawas county, Ohio, against the plaintiffs in error, for the appropriation of the property therein described to be used in connection with the construction of Dover Dam in accordance with the official plan of the district. The organization of the district as a body corporate and a political subdivision of the state of Ohio, under the Conservancy Act of Ohio, Sections 6828-1 to 6828-79, General Code, the adoption of an official plan, the inability of the district to agree with the owners, and the necessity for the appropriation, were all also alleged in the petition.

On the 19th day of April, 1935, the Court of Common Pleas of Tuscarawas county, in .which the cause was then pending, determined the jurisdictional questions required by Section 11046, General Code, in favor of the district, in the following journal entry:

“This cause coming on for hearing and being submitted to court upon the admissions and the evidence, the court finds that the defendants, The Geo. D. Harter Bank of Canton, Ohio, as Trustee for Canton Council, Boy Scouts of America, and Prank G. Hoover, have been duly served with process and are properly before the court.

“The court further finds that the plaintiff, Muskingum Watershed Conservancy District, is a public corporation as averred in the petition herein, that it has the legal right to make the appropriation prayed for in the petition, that the same is necessary and that the plaintiff is unable to agree with the defendants as to the compensation to be paid for the property sought to be appropriated herein.

“It is, therefore, ordered that to assess compensation for said property, herein sought to be appropriated, a jury be impaneled according to law and that said jury come on the first day of May, 1935, at nine o’clock, a. m., which time is hereby fixed for the impaneling of the same. It is further ordered that the clerk and sheriff draw sixteen names from the jury wheel for the purpose aforesaid on Monday, April 22nd,' 1935, and make due return thereof as provided by law.”

The case thereupon proceeded to trial in the usual manner, upon the questions of compensation and damages.

So, without further reviewing the history and preliminary steps in this case, suffice it to say that the main question presented for the consideration of this, a reviewing court, goes to the constitutional right of Muskingum Watershed Conservancy District to appropriate the private property described in its petition for the relocation of the tracks and right-of-way of the .Pennsylvania Railroad, as incidental to and made necessary by the construction o^Dover Dam, in accordance with the official plan of the district, approved and adopted by the Conservancy Court. For a proper decision of this case, we must not lose sight of the fact that the acquisition of the property appropriated in these proceedings for railway relocation purposes was incidental to, in connection with, and made necessary by the construction of Dover Dam in accordance with the official plan of the district. So, with this issue so clarified, we will proceed to an analysis of the law and authorities in favor of the district’s right of eminent domain in this particular respect.

Section 6828-18, General Code, provides:

“Said board shall also have the right to condemn for the use of the district, any land or property within or without said district * * * according to the procedure provided by law for the appropriation of land or other property taken for telegraph, telephone and railroad rights-of-way. ’ ’

This section should be interpreted and read along with and in connection with Section 6828-15, General Code, which recites the general powers of the district:

“In order to effect the protection, reclamation or irrigation of the land and other property in the district, and to accomplish all other purposes of the district, the board of directors is authorized, and empowered * # * to remove or change the location of any * * * railroad * * * or other improvements in or out of said district; and shall have the right to hold, encumber, control, to acquire by donation, purchase or condemnation, to construct, own, lease, use and sell real and personal property # * * in or out of said district for right of way, holding basin or for any necessary purpose * * *.”

Section 6828-2, General Code, in reciting the purposes for which a district may be organized, and to which Section 6828-15, General Code, refers, provides, under subsection (f), that it can be done; that is that it may “do all other things necessary for the fulfillment of the purposes of this act.”

The powers of the district granted by the Legislature, as above stated, are applicable to the instant case. The construction, maintenance and operation of Dover Dam, according to the official plan of the district, necessitated the relocation of that portion of die Pennsylvania Railroad within the reservoir area of said dam below its spillway elevation of nine hundred and sixteen feet to a point above said spillway elevation, and the acquisition of the premises described in the petition was, therefore, necessary and essential for such relocation purposes. Certainly, it cannot be contended that an act which grants to the district the power to do all things necessary for the fulfillment of the purposes of the Conservancy Act, that is, to remove or change the location of any railroad, and to acquire by condemnation real property for any necessary purpose, can not be construed as giving the district the right to condemn property for railroad relocation purposes made necessary by the execution and accomplishment of the official plan for which the district was organized.

Even if such power of eminent domain were not expressly granted by the Conservancy Act of Ohio we are of the opinion that it would still be a lawful exercise of that power, as a necessary incident to the execution and accomplishment of the official plan for which the district was organized. Upon this point we cite the case of Pitznogle v. Western Maryland Rd. Co., 119 Md., 673, 87 A., 917, 46 L. R. A. (N. S.), 319. It was sought by the railway company to acquire an existing private highway for the relocation of its tracks, and also to acquire other real estate for the relocation of the private highway. The appellant in that case contended that the appropriation of the property to be used as. a private road in substitution for the existing private road, which was taken for the relocation of the railway company’s tracks, would constitute a private use of the land, in violation of the railway company’s constitutional and statutory right of eminent domain. The court held that a railroad company which takes under the right of eminent domain, for the purpose of its tracks and yards, the space occupied by a private way which is necessary to permit the owner to reach a highway from his home, may, in order to afford him full compensation for the taking, condemn a strip of land belonging to a stranger as a substitute for the private way.

The court, in commenting upon that case, said:

“The right of eminent domain having been conferred upon the plaintiff by legislative enactment, it has the undoubted right to condemn, if need be, the aforementioned * * * road or private way for railroad purposes, and in our opinion it was not intended by the framers of the Constitution that there should be no adequate relief from the conditions that we have mentioned, resulting from the taking of said private road for public use. The condemnation of a part of this land, here sought to be condemned, for a substitute private road or way is incident to and results from the taking, by reason of public necessity, of the existing private road for public use, and the use of it for such purposes should, we think, be regarded as a public use within the meaning of the Constitution.”

We are of the opinion that the Conservancy District has the right to appropriate the right-of-way of the Pennsylvania Railroad Company if it impedes the construction of an improvement within the permitted purposes of the district. In the case of Brown v. United States, 263 U. S., 78, 68 L. Ed., 171, 44 S. Ct., 92, it was held that the power of eminent domain may be exercised by the United States government to secure land for a town site, locations in which may be exchanged for those in a tract which it has taken for a reservoir site for an irrigation project, and to which buildings on the tract taken may be removed, all in part payment for the tract taken, because the acquisition of the town site is so closely connected with the carrying out of the irrigation project, and the mere existénce of a residue of land taken which may have to be sold if all exchanges are completed is immaterial.

In this case, the Federal Government, in connection with the'construction of American Falls Reservoir on the Snake river in the state of Idaho, proceeded to condemn private property for the relocation of the town, American Falls, which would be flooded by such reservoir. It was contended that the power of eminent domain did not extend to the taking of one man’s property to sell it to another, and that such an object can not be regarded as for the public use of the property. Upon this point Chief Justice Taft, in delivering the opinion of the court, said:

“The District Court held that the acquisition of the town site was so closely connected with the acquisition of the district to be flooded and so necessary to the carrying out of the project that the public use of the reservoir covered the taking of the town site.”

Counsel for plaintiffs in error contends that because the Pennsylvania Railroad Company has the right of eminent domain, the Conservancy District can not appropriate property for the relocation of its railroad necessitated by the construction of the dam. In other words, it is his theory that the Conservancy District, which has the right of dominant eminent domain, must appropriate from the railroad company, and the railroad company must, in turn, appropriate such land as may be necessary for the relocation of its road. We believe this proposition to be unsound, and the same is fully answered and very nicely treated in the case of Dohany v. Rogers, State Highway Commissioner of Mich., 281 U. S., 362, 74 L. Ed., 904, 50 S. Ct., 299. In that case, Mr. Justice Stone, in delivering the opinion, held:

“We need not inquire whether, under the peculiar provisions of the Michigan statutes, the proposed taking of appellant’s land is for highway or railway purposes. It is enough that although the land is to be used as a right of way for a railroad, its acquisition is so essentially a part of the project for improving a public highway as to be for a public use.”

Brown v. United States and Pitznogle v. Western Maryland Rd. Co., were both cited in this opinion.

We are of the opinion that these cases conclusively establish the right of the Conservancy District to appropriate the real estate in question for the relocation of the Pennsylvania Railroad, as incidental to and made necessary by the construction of the Dover Dam according to the official plan of the district. The foregoing authorities clearly hold that this is the taking of property for public use.

Before concluding this opinion we desire to say that in approving the original order of Judge Lindsay, the trial judge, finding in favor of the district on the preliminary questions under Section 11046, General Code — without saving their exceptions — precludes the plaintiffs in error from raising those questions by error proceedings in this court. Section 11560, General Code, provides that “The party objecting to the decision must except at the time it is made.” There are numerous authorities to this effect — that errors not excepted to are not reviewable by a higher court. Plaintiffs in error attempted to raise the same preliminary questions by filing an answer when the case was being submitted to a jury upon the questions of compensation and damages. There is no authority in law for this and the court below properly overruled their motions. The decisions are unanimous in holding that the jurisdictional questions required by Section 11046, General Code, are for the court to hear and determine, and until the court has so determined it is without jurisdiction to order an appropriation and impanel a jury for the assessment of compensation and damages. Cleveland, C., C. & St. Louis Ry. Co. v. Ohio Postal Telegraph Cable Co., 68 Ohio St., 306, 67 N. E., 890, 62 L. R. A., 941.

While it is elementary that jurisdiction of the subject-matter is never waived, yet the Supreme Court of Ohio in the case of State, ex rel. Geo. D. Barter Bank of Canton, Trustee, v. Lindsay, Judge, 129 Ohio St., 680, 196 N. E., 432, to prohibit Judge Lindsay from entering a final judgment in the case immediately after the verdict of the jury, upon practically the same grounds set forth in these error proceedings, sustained a demurrer to relator’s petition and dismissed said cause upon the ground that the Court of Common Pleas of Tuscarawas county, Ohio, had jurisdiction of the subject-matter in these appropriation proceedings and that prohibition did, therefore, not lie.

So, from the foregoing we conclude that there is no error apparent upon the face of the record in this case, and that the judgment of the Court of Common Pleas should be and the same hereby is affirmed.

Judgment affirmed.

Montgomery and Sherick, JJ., concur.  