
    Silverthorne et al. v. Parsons et al.
    
      Countv road — Agreement between county commissioners and land owners — To change location of road — New road becomes legal-highway, when — Section 4869 Revised Statutes.
    
    When the owners of land crossed by a county road enter into an agreement' with the county commissioners pursuant to which they convey to the commissioners other land, with a view to affecting a necessary change in the road, and the road is by order of the commissioners opened on the lands conveyed, and is so used by the public and by the proper authorities, there is a legal change in the location of the highway, notwithstanding the want of statutory proceedings for that purpose : and, under section 4669 of the Revised Statutes, so much of the original road as is rendered unnecessary by the change is vacated.
    (Decided May 9, 1899 )
    Error to the Circuit Court of Cuyahoga county.
    
      The plaintiffs own the fee in a tract of land lying in the hamlet of Rocky River in Cuyahoga county and the defendants are the trustees and supervisors of said hamlet, the trustees having succeeded with respect to the matters in controversy to the rights and duties of the commissioners of the county. The defendants, asserting- an easement in the public for a street or public way in a strip thirty feet in width across said tract, were about to enter thereon and remove the fences and shade trees, The plaintiffs, denying the existence of such easement, brought suit to enjoin the defendants from opening- the street. Issues of fact having been joined the case was tried on appeal in the circuit court where there was a judgment for the defendants upon the following state of facts as shown by the special findings:
    “This cause came on to be heard on the pleadings, exhibits and evidence, and upon due consideration thereof, and in response to a request made by the plaintiff that the court make a statement showing the conclusions of fact separate from its conclusions of law, the court finds as follows:
    4 ‘First — -That on June 1, 1889, the plaintiffs were, the owners in fee of three acres of land in Rock-port township, in Cuyahoga county, Ohio, bordering' on the westerly side of Rocky river, on which was a public house, kept by them. The title to these premises, the plaintiffs .obtained on July 23, 1884, by warranty deed from Emma A. Hopkins and Mary A. Patchen, who, from the twenty-fifth day of March, 1882, to the twenty-third day of July, 1884, owned and occupied the same.
    
      44Second — That for many years prior to March 25,1882, The Rockport Plank Road Company, had control of the public highway known as the Detroit or Wooster road, which crossed the Rocky river, lying across the said premises of three acres. Prior to March 25, 1882, the said Roekport Plank Road Company, had built a bridge at this point for crossing the Rocky river, and had graded a roadway for its plank road up the side of the westerly bank in a northerly direction, and extending behind and northerly of the said public house.
    
      “Third — That on March 25, 1882, The New York, Chicago & St. Louis Ry. Co., a corporation legally organized for railroad purposes, located its main track in such manner that it came close upon said plank road at 'the north of said public house and upon said premises, and made travel so dangerous to be continued by that route that, in consideration that the said plank road would and did quit-claim to said Emma Hopkins and Mary Patehen, whatever interest it had in the said roadway which it was thus considered necessary to abandon, the said railway did cause to be conveyed from said Mary Patehen and Emma Hopkins, to said Roekport Plank Road Company, a roadway in front of said public house of thirty feet wide, and to the southerly side of said public house connecting by proper grade and with necessary slopes, the said plank road on the side of said westerly bank of Rocky river, with the county or Wooster road (so called) on the top of said bank, and to the satisfaction of the county commissioners; which was accordingly done.
    ■ “Fourth — That on October 11, 1882, the said Emma Hopkins and Mary Patehen, at the instance of said Railway Company, and in carrying out the arrangement named in finding “3” above set forth, conveyed to said Roekport Plank Road Company, a part of said three acre tract, described as follows: Being a strip of land thirty feet wide, beginning at a point on the side of the hill near the bridge where the new plank road recently constructed diverges from the old road recently abandoned, and extending along and up to the hill to the point in front of the Patehen house, where said new road intersects with the county road running- north and south, and wrote in the deed of conveyance, as follows: ‘Provided that in case the said party of the second part (the grantee Plank Road Company), its successors or assigns, shall at any time hereafter abandon or cease to maintain and operate its said plank road over the roadway hereinbefore, described, or any part thereof, then and in that case, all rig’hts hereby conveyed in said roadway or in any part thereof so abandoned, shall revert to the public.’ Thus separating said three acre tract into two parcels, one north and the other south of this thirty feet roadway.
    
      “Fifth — Subsequent to October, 1882, and prior to June 1, 1889, the said Rockport Plank Road Company, in due course of law, as provided by Revised Statutes, sections 3495 to 3500, sold and conveyed to the county commissioners of Cuyahoga county, their said' plank road, including the bridge over the said Rocky river, which at that time was about fifty feet above the bed of said river and about fifty feet below the level of the top of the banks on either side of the river, and said county commissioners having taken possession of said plank road, made it a free road for the public travel, and thereafter prior to June 1, 1889, the said county commissioners, having been legally authorised to build a new bridge for the public travel, which would cross said Rocky river on the level of what was substantially the top of the banks of said river, bargained with plaintiffs for a strip of land to serve as a right of way, on which to erect such new bridge, and by an oral agreement made on or about April 15,1889, by which all three county commissioners agreed with plaintiffs, but did not however reduce it to writing, that the said county commissioners would give to plaintiffs, three hundred and twenty-five ($325) dollars, in money, to be paid to said Emma Hopkins and Mary Patchen, for a release of so muGh of their mortgage' held upon said three acre tract as included the proposed right of way for said new bridge,' and would also give to said plaintiffs the said premises described in paragraph “4” of these findings, as conveyed by said Emma Hopkins and Mary Patchen, to said Rockport Plank Road Company, to be put in the possession of plaintiffs after the said new bridge should be completed and travel opened across said river upon the same; and thereupon in consideration of said agreements, the plaintiffs agreed to, and on June 1, 1889, did convey to said county commissioners, by warranty deed, for the purpose of said new bridge, a strip of land off the southerly side of said three acre tract, being fifty-four and sixty-four one-hundredths in width, and extending from said Wooster road to the said Rocky river, and said county commissioners went immediately into possession of said premises so conveyed, and erected thereon a bridge and roadway which was completed and opened and used for public travel on the fourth day of July, 1890, and from the day last named, has continued to be the sole means of public travel across said river at that point. Immediately after the date last named, the said county commissioners proceeded to sell the material contained in the old plank road bridge, and the same was at once taken and removed by the purchaser.
    “From the point where the roadway of the said Plank Road Company entered upon its said old bridge, the bank was precipitous to the water’s edge of the river, and it was impossible to reach said water’s edge then or hitherto by a team.
    
      u Sixth — Soon after the opening for- travel of the said new bridge, the plaintiffs took possession of said thirty feet roadway, described in paragraph “4” above, under claim of right derived under said oral agreement set forth in paragraph “5” of the findings, and by and with the consent of the commissioners, and in the spring of 1891, proceeded to and did, at the expense of about one hundred ($100) dollars, and by open and continuous work for several weeks, carried on in the plain sight of all the inhabitants of the vicinity, which afterwards became part of the hamlet of Rocky river, and while no objection was made by any person thereto, plaintiff did fill up a portion of the said roadway of thirty feet, and plant over the same, brushes and flowers, and did place a fence consisting of a bar upon posts set in the. ground at the line where said thirty feet roadway entered the easterly side of said county or Wooster road, covering such entrance except about two feet at the southerly line thereof, which fence has continued till the time of this trial.
    “That the commissioners required said bar to be so placed as to leave an opening for foot passengers to pass through and thus over said road way to the river.
    “ Seventh — That on or about the nineteenth day of December, 1891, the hamlet of Rocky river was duly organized, under the statutes of Ohio, and at the date of the commencement of this action, the defendants named in plaintiffs’ petition were such officers of 'said hamlet, duly chosen and holding the offices named in said petition. Up to the date of about a year prior to the filing of the petition in this cause, there is no proof of any complaint or objection made to the plaintiffs against their taking possession of said • thirty feet roadway, and filling in the same as aforesaid; and about a month before the bringing of this suit, the said defendants, as officers of said hamlet, made threats that they were about to take down said fence described in paragraph “6” of these findings, and to plough up and restore as a road for travel, said thirty feet roadway.
    
      uEighth — When the new bridge was opened for travel on July 4, 1890, at the point where said thirty feet roadway entered said county or Wooster road, which was within the territory after wards included in said hamlet, there were no sidewalks there, nor up to the time of this trial.
    
      “Ninth — The county commissioners of Cuyahoga county never at any time entered upon their record any memorandum of the oral agreement made with plaintiffs as it is set forth in paragraph “5” above, nor did they_ ever proceed in any formal action which is entered on their records, to vacate that portion of said thirty feet roadway claimed by plaintiffs under said oral agreement last named.”
    ■ As conclusions of law, resulting from said conelusions of fact, the court finds:
    
      First — That under the statute of Ohio, providing for the dedication of highways, the roadway in controversy in this suit, from 1885, became a legally established .public highway, and that on the creation of said hamlet of Rocky River, the same became one of the highways of said hamlet.
    
      “Second — That under section 1651, Revised Statutes of Ohio, trustees of hamlets within this state, have exclusive jurisdiction of the highways within the corporate limits of their respective hamlets, and therefore, the court finds that the defendants in this action, the trustees of the hamlet of Rocky River, represent the interest of the public in this highway, and are proper parties to this action, and have a standing to contest the rights claimed by the plaintiffs in said highway in controversy in this action.
    
      “Third — That the commissioners of the county could not by contract executed or otherwise, turn the public highway over to a private individual, so as to deprive the public of its use without proceeding in the form and manner as provided by section 4661, Revised Statutes of Ohio; and that within the time asserted here in this action by the proper agencies of the public, its use as a high way may be enforced.
    
      uFourth — That the plaintiffs have no such right in law or equity to the premises embraced in said thirty feet roadway, as would entitle them to maintain this, action.
    “And it is therefore ordered, that the same be, and it hereby is, dismissed at the costs of plaintiffs to be taxed, to which finding of fact and of law and judgment, the plaintiffs except.”
    This is a petition in error to reverse the judgment of the circuit court.
    
      Bivrke <& Ingersoils and Squire, Sanders <& Deuvpsey, for plaintiffs in error.
    
      
      Alex. Hadden and II. R. Husbands, for defend ants in error.
   By the Court.

Counsel for the defendant in error relies upon the decision of this court in the City of Steubenville v. King, 23 Ohio St., 610, where it was held that “a conveyance of land to the county commissioners for a county road, the acceptance of the grant by the commissioners, the opening of the road by their order and its subsequent use as such ■ by the public, and by the proper authorities, constitute a legal public highway, notwithstanding the want of statutory proceedings for its establishment.” Applying this doctrine to the facts found by the circuit court it results that there is a legally constituted public highway upon the ground now occupied by the public in connection with the high level bridge, notwithstanding the want of statutory proceedings for its establishment. Since the absence of favorable action by viewers does not prevent the change of the road to the new level, it cannot serve to defeat the result of such change, which section 4669 of the Revised Statutes defines to be that “so much of the original road as is rendered unnecessary by such alteration * * * shall be and remain vacated.”

Judgment of the circuit cou/rt reversed and judgment for the plaintiffs in error.  