
    *David Young v. A. Buckingham et al.
    The erection of a toll bridge is a public use, for which land may be condemned.
    Where the journal of the court of common pleas contains entries showing a regular series of measures condemning l^nds for public uses, it is competent to prove the proceedings in pais by parol, w.here no complete record, is made, and the original papers are lost.
    Oommissioners appointed to appraise lands to be condemned for public uses¡. the concurrence of a majority binds the minority.
    This cause was adjourned here for decision from the county of Muskingum. It was an action of trespass, qucere clausum fregit. Declaration, for breaking and entering plaintiff’s close. Plea, gen- • eral issue, with notice of the special matter set forth in the evidence offered by defendants as hereinfter stated.
    On the trial, the defendants admitted that before and on January 21, 1812, John McIntyre was seized in fee of the undivided? half part of the locus in quo, and continued seized until December 1, 1814, when he conveyed the same to one Noah Zane, who convoyed the same to the plaintiff on January 1, 1823, and that after that time, and before the commencement of this suit, defendants made necessary repairs on the bridge, situate on said - premises as-hereinafter described, and that the plaintiff, therefor, is entitled to recover, unless the special matter offered in evidence by defendants constitutes a defense of the action.
    The defendants then gave in evidence the act of the general-assembly of the State of Ohio, entitled “ an act to authorize Moses Dillon and his asssciates to erect a toll-bridge over the Muskingumriver,” 10 Ohio L. 51, and the minutes of the court of common, pleas of Muskingum county, as follows:
    “August 18, 1813. The petition of Moses Dillon and his asso- • ciates was presented, and ordered that John McIntyre have notice • of the pendency of said petition until Friday morning.”
    “ August 20, 1813. This day the court have appointed Samuel Sullivan, Samuel Thompson, and Seth Adams, commissioners to appraise the land set forth in the petition of Moses Dillon and his .associates, agreeable to said petition. Protest against the same ■filed, John McIntyre having had notice that said petition of M. Dillon would be presented. The appraisers appeared in court and took the oath required by law. And ordered that they report by to-mbrrow morning to this court.”'
    “August 21,1813. This day the commissioners who *were appointed to view and appraise certain lands set forth in the petition of Moses Dillon and his associates, as belonging to John McIntyre, appeared in court and delivered in their report in writing, and the report^ of two of them, viz., Samuel Sullivan and Samuel Thompson, was admitted, and on motion affirmed by the court as a legal report in this case ; and the report is ordered to be filed. And the report of the third, viz., Seth Adams, rejected.”
    The defendants then offered to prove that the said petition and report have been lost or destroyed, and that there is no entry relating thereto in any of the books or records of said court, except the minutes before stated. That the said premises were and continue necessary to the erection and support of said bridge, and that the said petition was filed before the said Dillon and his associates took possession of the said premises, and further offered to prove by parol that the said petition and prayer thereof were in conformity to the said act, and set forth a description of the said premises as necessary for the purposes specified in section 2 • of the said act, and that the commissioners appointed by the court were freeholders, and that the said commissioners, after being .sworn, all proceeded together to value and appraise said premises, and that the said Sullivan and Thompson did appraise the same at the sum of two hundred and sixty dollars,.and the said Adams at the sum of one thousand five hundred dollars, which reports were returned to the court and acted upon by them as stated in the minutes; and that before the said Dillon and his associates entered on the said premises they tendered to the said McIntyre the ,said sum of two hundred and sixty dollars, which he refused to .receive, and that the said Dillon and his associates then proceeded •to erect said bridge, and completed the same within the time limited by the said act, and have ever since maintained the said bridge, and that defendants are the assignees of the said Dillon and his associates; all of which testimony the court rejected.
    The defendants then offered to prove that after the passage of the said act and before the said Dillon and his associates took possession of the said premises, the county commissioners of Muskingum county established a county road over the same, running to and over the river ; that the ^bridge was built by the said Dillon and his associates on the same, and the said bridge has ever since been used as a public highway, subject to the payment of toll to the defendants and those through whom they claim, and that they have ever since received toll from passengers, but-the place of receiving toll is not on the premises claimed by plaintiff, and that a bridge is the best mode of crossing the river at that point, and admitting that the Muskingum river is navigable.
    Which testimony the court rejected, and a verdict was rendered for plaintiff.
    A motion was made by defendants for a new trial on the ground that the testimony offered by them should have been received,., which motion was reserved for decision at the court in bank.
    The defendants contended :
    1. That as the subject matter of the appraisement was of a public- nature, the concurrence of two of the commissioners is sufficient.
    2. The decision of the court of common pleas in accepting the report is conclusive until reversed.
    3. That the establishment of the road by the county commissioners, and the act of the legislature, authorized the erection of the bridge and the taking of toll.
    4. That the erection of the bridge is not inconsistent with the-public right of way, but a furtherance of it.
    5. That the use of the highway for so long a period gives a ■ right of way which the owners of the fee can not question.
    6. That as the original grantees were in possession of the bridge before the title of the plaintiff accrued, the action of trespass can not be maintained.
    Stillwell, for defendants.
    Goddard, for plaintiff.
   Judge Lane

delivered the opinion of the court:

*The subjects of evidence offered by the defendants profess to be a proceeding of the court of common pleas of Muskingum county, carrying into effect the provisions of a statute, entitled “ an act to authorize Moses Dillon and his associates to ■erect a toll-bridge over the Muskingum river,” 10 Ohio L. 51, by which the right to use the land in question, then owned by McIntyre, was given to Dillon, in the erection and occupancy of a toll-bridge. The form, consequently, which the objection must assume, is, either that no authority is shown to appropriate the land to this purpose, or that this authority has been so defectively executed that no such appropriation is made.

That the legislature may lawfully create the franchise of erecting a toll-bridge we have no doubt. It is as much an object of pub- . lie concern as a turnpike road or a highway. It follows that 'private property, if necessary for this purpose, maybe taken from the owner, due provision being made for his compensation.

Section 2 of the statute is designed to secure the rights; of the proprietor of the land. ' It is there provided, that on the petition • of Dillon to the court of common pleas, a valuation of the property necessary to be taken shall be made by three commissioners, whose report shall be entered of record in the office of the clerk, .and the amount paid, before the property shall be appropriated to the use of the bridge.

The first objection made to the form of the proceedings is, that “ it has never been entered of record.” The original petition and report are not to be found, and no entry of proceedings has been made, except upon the journals of the court; and the question now made is whether the journal of the court is a record, so that entry there will satisfy this requisition. It is said that a distinct record of all the proceedings, in relation to this application, shall be made on the “complete records ” of the court; that the judgment book in England is not evidence. 5 B. & P. 474. This question, in our opinion, must be determined by the practice in our state. By our statute, the journal of courts is required to be kept, and in providing that acts of the court are of no validity, until entered there, it is implied that an Gentry on the journals is all that is indispensable to make an act of the court effectual. Hence judgments are good before the complete record is made; and- in the practice of many clerk’s offices, no complete record is deemed necessary, except of litigated suits. The only evidence of the doings of the court, in this case, is found in the journals. It is true that the entries in the journal are not any part of the record in the case, 1 Ohio, 268; but the book is one of the records of the court, containing the necessary materials to make the complete record, and when all is done to authorize the recording officer to record, it is in law considered as recorded, although the manual labor of writing it in the book, kept for that purpose, has not been performed.” 4 Ohio, 83. The objection, therefore, in our opinion, is not sustained. The proof offered shows the action of the court, in a matter over which they possessed jurisdiction, and consequently must not be collaterally questioned in another person. 1 Pet. 540.

The statute requires that the land shall be valued by three freeholders, and the assessment paid, before it can be taken for the bridge. The proceedings of the court show the valuation made and the amount tendered, but that although all the appraisers were present and acting, that two only united in the appraisement. It is objected that the dissent of one invalidates the appraisal, for it is insisted that a strict execution of powers must be shown. 3 Johns. Cas. 107; 1 Burr. 377; 4 Burr. 2244; Cowp. 26; 7 Term, 363. The determination of this point depends upon the nature of the powers to be executed by the commissioners. In the execution of a power delegated for purposes merely private, it is necessary .that all should concur in the act; as in cases of trustees, arbitrators, etc. But if the persons be intrusted with powers in some respects of a general nature, or for public objects, if all are acting, a majority will conclude the minority, and their act is the act of the whole. Co. Lit. 181; 6 E. B. & E. 228; 6 Johns. 39. It is evident that this power was confided to these commissioners for public objects, since the taking the land from McIntyre can be justified upon np other ground than that it was demanded by public interest.

*It is further objected that the law, section 2, requires notice to be given to the owner or owners of the land proposed to be taken, and that the case shows notice to McIntyre only, who held but an undivided moiety. But the plaintiff holds the estate of McIntyre, and is bound by what bound him; and it is plain he sustained no injury, since his interest was the subject of appraisal; and especially has he little cause to complain, if, as is possible, he was taken to be the sole owner of the land.

¥e are satisfied the evidence was-improperly rejected ; and that a new trial be granted, the costs of which must abide the event of the suit.  