
    Lowmiller v. Fouser et al.
    
      Establishment of road by county commissioners — Road not to be opened till petitioners pay landowner— Failure to make payments terminates right to open road — Landowner entitled to action for vacatioti — Sectio7i 4109, Revised Statutes.
    
    Where a board of county commissioners, in a proceeding for the establishment of a road, make an order under section 4709, Revised Statutes, directing the petitioners to pay a landowner, in certain payments at certain times, the amount awarded him as compensation for land taken, and that the road be not opened until the payments are made, a failure to make the payments as directed, on demand of the landowner, terminates the right to open the road; and, in such case, the landowner may maintain an action for the vacation of the order establishing the road as a cloud on his title; and, also, in such case, the petitioners for the road are the proper parties defendant.
    (Decided December 11, 1894.)
    
      Error to the Circuit Court of Crawford county.
    This was a suit brought by Lowmiller against the defendants to quiet his title to the premises described in the petition. The defendants demurred to the petition, on the ground that it does not state facts sufficient to entitle the plaintiff to the relief sought. The demurrer was overruled; and, the defendants not desiring to answer, judgment was rendered quieting the title as prayed for. On error, the judgment was reversed by the circuit court, and cause remanded for further proceedings. The only questions in the case arise upon the sufficiency of the petition. It is as follows :
    “The said plaintiff says, that he is in possession of the following described real property situate in Whetstone township, in the county of Crawford and state of Ohio, * * * being a strip eighteen feet wide on each side of the following line, beginning at the corner stone of the southwest corner of the southeast quarter of section (20) twenty, township (3) three, range (17) seventeen; thence south eighty-nine degrees and fifty minutes * (89°50'),' east eight (8) chains and twenty (20) links to a stake; thence in the same direction twelve (12) chains and thirty-six (36) links to a stone; and-this plaintiff is owner in fee simple of the above described premises.
    “This plaintiff further alleges, that the said defendants claim an interest therein adverse to him, which plaintiff is advised and informed, and on such information and belief alleges, to be in substance and in fact as follows :
    “That on the petition of said Samuel Fouser, Jonathan Beal, Samuel Shearer, Jacob Shearer, John C. Kurtz, J. G. Kelly, John Deebler, Isaac Beal, Michael Stoltz, Wensyl Uskalitz, J. A. Laughbaum, Henry Ruth, C. F. Keiss, John Gwinner, B. Beal, to the board of county commissioners of Crawford county, Ohio, in which said Samuel Fouser was principal petitioner and the only petitioner who gave bond, the said board of commissioners of Crawford county, Ohio, on the 3d day of June, A. D. 1890, established a county road on the lands of this plaintiff, and which road as established by said commissioners embraced the strip of land aforesaid, thirty-six feet wide, having the above described line as the center thereof, and said commissioners made at the same time an order, that said road should not be opened until certain compensation and damages which had previously been awarded to plaintiff by the said commissioners should be paid; that an appeal was taken from said award by plaintiff to the probate court; and upon said appeal the sum of nine hundred and seventy-nine ($979.00) dollars was awarded by the jury to this plaintiff as compensation and damages; that the county commissioners on the 6th day of December, A. D. 1890, made an order that said road be not opened until the said petitioners for said road pay to this plaintiff one hundred and forty-five ($145.00) dollars on the 1st day of January, A. D. 1891, one hundred and forty-six ($146.00) dollars on the 1st day of January, A. D. 1892, one hundred and forty-six ($146.00) dollars on the 1st day of January, A. D. 1893, one hundred and forty-six ($146.00) dollars on the 1st day of January, A. D. 1894, and one hundred and forty-six ($146.00) dollars on the 1st day of January, A. D. 1895; and that upon payment of said last installment by said petitioners'on said last mentioned date the county commissioners assumed to pay the remainder of said compensation and damages ; to which order of the county commissioners, in so far as the same extended the payment of said compensation and damages for the periods aforesaid, this plaintiff excepted, all of which will appear by the records of said commissioners. ’ ’
    £ £ And plaintiff says, that said order of said commissioners postponing the payment of plaintiff’s said compensation and damages, and making- the same payable by installments, was both unconscionable and unauthorized by the laws of Ohio.
    £ ‘This plaintiff alleges that the dwelling house on his farm in which he resides and his out-buildings stand within the limits of. said proposed road; that his dwelling house is and has for some time been out of repair; and that plaintiff, before said road was petitioned for, made his plans and preparations to erect a new dwelling- house within the bounds of said proposed road; that he had most of his material on the ground for that purpose, which is suffering serious damage by exposure, and plaintiff is left in uncertainty and doubt as to what use he shall make of said property, not knowing what the intentions of said defendants are in regard to paying- said compensation and damages or the opening- of said road.
    “ Plaintiff further says, that since said first installment of one hundred and forty-five ($145.00) dollars fell due on said 1st day of January, A. D. 1891, he requested payment thereof of the said principal petitioner for said road, but he neglected and refused to pay the same, and still neglects and refuses payment thereof, and all the defendants refuse to pay plaintiff any part of said award.
    “And again on the 23d day of March, A. D. 1891, this plaintiff personally applied to said Samuel Fouser, the defendant, for payment of said installment which was again refused, and he then and there served upon said Samuel Fouser a written notice, that unless the same was paid forthwith, plaintiff would regard the road as abandoned by said defendants, and would file a petition in the court of common pleas to quiet his title as against said proposed road, and their right to construct the same upon his premises.
    “Plaintiff further alleges, that by reason of the premises said road and the opening thereof should be declared by this court to be abandoned by said defendants, and that his title to said strip of land should be forever quieted as against any claim of said defendants or any of them to pay any part thereof for the road proposed or otherwise.”
    Prayer for such relief.
    
      S. R. Harris and A. Wickham, for plaintiff in error.
    In this class of cases section 4711 directs the commissioners how to proceed after receiving the papers and transcripts from the probate court. It requires that they shall act upon the same as in the case mentioned in section 4709, Revised Statutes. Under section 4709 the county commissioners can do only one of two things (the damages exceeding the amount ordered to be paid out’ of the county treasury), either to establish the road, and order the compensation and damages to be paid out of the county treasury, or refuse to establish the same unless the compensation and damages, or such portion thereof as they shall require, be paid, within such time as they may designate, by the petitioners.
    The commissioners under said section neither • established the road nor refused to establish the same, but made an order that said road be not opened until the petitioners for the same pay to this plaintiff the sum of compensation and clamages awarded to him, by the jury in the probate court, in installments covering a period of over four years thereafter.
    This was gross error, but cannot be reviewed by petition in error, because not a final order. Anderson v. McKinney, 24 Ohio St., 467.
    The final decision Of the commissioners is the order to the trustees of the proper township directing said road to be opened. Section 4650, Revised Statutes. It is error for county commissioners to make a final order establishing a county road, until the compensation and damages shall have been paid by the petitioners, or otherwise secured to the satisfaction of the claimants. Dwiggins v. Denver et al., 24 Ohio St., 630. Private property shall ever be held inviolate. Section 19, article I, constitution of the state. There was a quasi appropriation of the land, at the time said road was established, to wit: the 3d day of June, 1890, and without any compensation made to plaintiff, in money therefor, which is clearly in violation of the constitution. Section 19, article I, constitution.
    The order, we claim, is nugatory, although, it “easts a cloud on plaintiff’s title, and the defendants admit it by their demurrer.
    The refusal of the petitioners to pay as averred in the petition and admitted by the demurrer, is an abandonment of the road, and they could have relieved the plaintiff from his suspense and themselves from the costs of the action by a plea of disclaimer, under section 5346. The plaintiff’s petition might be held, if necessary, to perform the office of a petition in error, under section 6708. The errors of the commissioners may be averred, in the petition in error and proved if denied. They did not appear of record, as required in the judgments of common pleas and circuit courts, when reviewed on error under sections 6709,6710, Revised Statutes. In the present cáse the error of the commissioners are alleged in the petition of plaintiff in error and admitted by the demurrer. So that if the order establishing the road should be held to be a final order, without payment for the land, it is an erroneous order, in which the errors are gross, but do not appear in the record, because it does not show either the payment or nonpayment of plaintiff for his land.
    If it is binding on the plaintiff to hold his land in readiness for the road, he should be furnished with a remedy to sue for his money as the installments fall due, or rather get his cash, as required by the constitution. Section 19, article I.
    He has no money or remedy to get it, and the cloud on his title should be removed at once, as clearly provided by section 5779.
    The defendants, however, instead of disclaiming the land, as they may do under section 5346, thus relieving the plaintiff from his suspense, and permitting him to proceed with his projected improvements, take this strange and vexatious stand. “We will not pay you the installments past due. We will make no provision for the future, but we will not abandon the road. We admit that we make a claim to an interest in the land adverse to the plaintiff, but we will neither inform you nor disclose to the court, the nature of our contention, nor submit the same to the court for the purpose. 
      of determining such, adverse interest, as provided by section 5770. ’ ’ With the constitution, section 19, article I, providing that when private property shall be taken for public uses, a compensation therefor shall first be made in money. It was never intended by the legislature or the courts that one man and his property should be put under the power and control of another to any such extent.
    
      Cahill Bros., for defendants in error.
    The single question to be decided in this case is: Are the facts set forth in plaintiff’s petition in the court of common pleas sufficient in law to constitute a cause of action in favor of plaintiff in error against the defendants in error ? The plaintiff alleges that he is the fee simple owner, and in possession of a certain strip of land situated in Whetstone township, Crawford county, Ohio, and that the defendants in error claim an interest therein adverse to him. Plaintiff in error then set forth the extent of said adverse claim, by which it appears that said defendant in error, except the county commissioners, were road petitioners, who petitioned for a public county road on and over the strip of land described in plaintiff’s original petition, in the court of common pleas. '
    Section 4638, Revised Statutes, authorizes any twelve freeholders residing in the vicinity where the road is to be laid out, etc., to petition the county commissioners for the establishment of a county road. County and township roads are public highways, and are open to all who have occasion to use them. Shaver v. Starrett, 4 Ohio St., 475; Ferris et al. v. Bramble, 5 Ohio St., 109. Petitioners for a public highway acquire no more interest therein than any other citizen,or citizens who may have occasion to use the same. Their interest is a public, and not a private interest. Peifer v. Cox, 21 Ohio St., 248. If the prayer of the plaintiff’s petition were granted, it would only bind the defendants in error. The public, except these defendants, would still hold the same right and privilege ; these defendants would be restrained from the use of a public road open to the use of all the. world but them.
    The only estate of interest the petitioners could claim in the strip of land described in the original petition of plaintiff in the court of common pleas is a public interest in common with the public at larg’e. We do not think that an action to quiet title will be against the public at large, or any part of it, neither public authorities in proceedings to establish a highway. It is not the kind of adverse claim contemplated by the statute. The statute provides in what way a public road may be vacated, but it is not by an action to quiet title.
    The road will never be opened until the petitioners comply with the order of the commissioners. Section 4709, Revised Statutes.
    • The petitioners refuse and neglect to comply vdth said order, and to pay the sum of money which the commissioners ordered them to pay as a condition precedent to the opening' of the road, and the commissioners are not authorized by law, and will not order the road opened until the petitoners first comply with their former order as to the payment of the money. Does this act of refusal constitute a claim to an estate or interest in plaintiff’s land-in favor of defendants, adverse to plaintiff in error ? We think it does not.
    The petition of plaintiff in error, in the court below does not state that the defendants, or anyone else are doing any act, or threatening to do any act, which if done, would disturb plaintiff in his said possession; on the contrary, the road petitioners are refusing to do anything. Rhea v. Dick, 34 Ohio St., 425; Collins v. Collins, 19 Ohio St., 468. We suppose it will not be seriously claimed that plaintiff in error can maintain an action to quiet title against the board of county commissioners, acting in their official capacity in the establishment of a public highway. In substance, plaintiff’s complaint is directed against the order made by the board of county commissioners, and is an attempt to have the courts review that order in a collateral proceeding. Said order was- made in pursuance of section 4709, Revised Statutes.
    Under section 4709, the board of commissioners are left to their own discretion as to the time designated for the payment of compensation and damages. Rowersox et al. v. Watson et al., 20 Ohio St., 507.
    The duties enjoined upon the board of commissioners, under section 4709, are purely political in their character, and not. judicial. Bowersox v. Watson, 20 Ohio St., 507; Southard v. Stephens, 27 Ohio St., 649; Hulbert et al. v. Mason, 29 Ohio St., 562. A judgment will not be reversed on error for the action of the court below in regard to a matter resting within its discretion. Legg v. Drake, 1 Ohio St., 287; Duncan et al. v. Furguson et al., Wright, 740. The commissioners are not authorized or required by law to declare said road, so established, abandoned because the compensation and damages are not paid. Sections 6432,6453, Revised Statutes. The statute provides how the public right to a highway may be lost by non-user. Sections 4668 and 4636, Revised Statutes. The seven years limitation prescribed in section 4668 applies to roads authorized - but never opened. McClelland v. Miller, 28 Ohio St., 488; Peck v. Clark, 19 Ohio, 367; Fox v. Hart, 11 Ohio, 414; Grove v. Graham, 41 Ohio St., 304. An action does not lie to quiet title as ag-ainst highways. Sloan v. Biemiller, 34 Ohio St., 492. The demurrer to the petition was well taken for the further reason that the petition must set out the nature of plaintiff’s claim, which it does not. Lamb v. Boyd, 4 C. C., 499. If the commissioners erred in establishing said road and ordering' it opened upon payment of compensation and damages as aforesaid, their proceedings could have been reviewed by petition in error,-and reversed for errors appearing on the record. Haff v. Fuller, 45 Ohio St., 493, and cases cited.
    In case of the assessment for laying out a road over the lands of any person, the damages or compensation for the lands necessary to be taken must be paid or tendered in money or secured to be paid to the acceptance of the owner, before the opening-of the road can be ordered. Ferris et al. v. Bramble et al., 5 Ohio St., 109.
   Minshall, J.

It appears from the petition of the plaintiff, that on the petition of Samuel Fouser and some fourteen others, such proceedings were had before the commissioners of Crawford county, that on June 3, 1890, by the order of the commissioners, a county road was established on and over the lands of the plaintiff. The plaintiff appealed to the probate court from the compensation awarded him, where such proceedings were had, that by the verdict of a jury $979.00 were awarded him. These proceedings being laid before the commissioners, the board, on December 6, 1890, made an order that “the road be not opened until the petitioners paid the plaintiff’'$145.00 January 1,1891, and four other payments of $146.00 each, at designated times, the last to be made January 1, 1895; the commissioners assuming to pay the balance. When the first payment became due, it was demanded of the principal petitioner of the road, who refused to pay it, and neither he, nor any of the rest, has paid it, or any part of the sum awarded.

The question arises whether the plaintiff has, under the state of facts, a right to have the road, so established, declared vacated, and his title to the land quieted ag’ainst any claim that may be made of a right to open it under the proceedings had before the commissioners. The fact that the plaintiff’s dwelling-house stands upon the way of the proposed road, and will have to be removed if the road is opened, and that the same is in need of repairs, which he cannot prudently make during the uncertainty caused by the neglect of the parties to pay the amounts awarded, aggravates the nature of his injury, if any exists, but does not, as we think, add anything to his rights in the premises. If the right exists to open the road, notwithstanding the default of the petitioners in making payments as directed, the inconvenience connected with the removal of his dwelling house must be deemed compensated by the award of damages that has been made him.

So the question then arises: Did the failure to make the payments as directed by the order, defeat the right of the petitioners to have the road opened, and cast a cloud upon the title of the plaintiff? We think it did. We see no error in the order of the' commissioners, that the road should not be opened until the plaintiff be paid the compensation awarded. It seems clearly authorized by the provisions of section 4709, Revised Statutes, and does not violate the provisions of the constitution requiring compensation to be made in money before private property is- taken for public use. By this order the road is not to be opened until the payment is made; and no taking can be said to occur until the road, is opened to public travel. A mere order establishing a road, with a conditional order for opening it, is not, in law, a taking* of the land until the order for opening it becomes absolute. But the taking of private property for a public use is a matter of strict law. It was therefore the duty of the petitioners to comply with the terms of the order and make payment as directed, in order to acquire the right to have the road opened for the use of themselves and the public. So that when they neglected to make the payment of $145.00 required to be paid January 1,1891, their right under the order establishing the road terminated, unless the default should be waived by the plaintiff, which was not done. To hold otherwise would be to establish an unjust and oppressive practice. It would give the petitioners the power at any time to open the road by making payment, whether at the day or not, without any right in the land owner to compel payment. This would materially affect the value of the owner’s land, and be a cloud on his title. He could not improve it as prudence might suggest, nor sell to advantage, if he desired to do • so. Hence, such an order for the opening of a road by petitioners must be strictly complied with as to making payments, of the right will, and should, be lost.

Again, we think it clear, that this is such a cloud as may be removed by the decree of a court at the suit of the land owner. The proceedings before the commissioners apparently establish a public highway on his lands, which, from the default of the petitioners, is not such in fact. As observed by the judge delivering the opinion in Bogert v. City of Elizabeth, 27 N. J., 568, 572: “It is highly desirable that land should be freed from every lurking and unsubstantial claims, for even the ■suspicion of such claim, no matter how ill-founded, ■affects the value of the property when on sale.” 'This was said in construing a statute of the state of .New Jersey, furnishing a remedy for quieting "title, substantially like our own. Section 5779, Revised Statutes. It is further observed, that “The policy which the statute is designed to promote is beneficial and enlightened, and it should be received with favor.” The decision was followed and approved by this court in construing ■our own statute. Rhea v. Dick, 34 Ohio St., 420, 423.

Two objections are, however, made to the maintenance of the action: (1) That the plaintiff has an adequate remedy at law by a proceeding in error ; (2) That the defendants are not the proper parties.

1. It will be conceded, that if, in this case, the plaintiff could obtain relief by a proceeding in error, such proceeding would be an adequate, as well as the proper remedy. Upon a cursory examination of Dwiggins v. Denver, 24 Ohio St., 629, it mig’ht seem that such is the case. But it will be observed that in that case, the error consisted in the order of the commissioners, directing the road to be opened before the expiration of the time fixed for the payment of the money. The error was apparent on the record, and the court properly reversed the order. Here no such objection can be taken to the order. The road is not to be opened until the payments are made. The fact entitling the plaintiff to relief — non-payment of the money as required — is dehors the record, and cannot be reached by a proceeding in error. Haff v. Fuller, 45 Ohio St., 495. If the board of commissioners abused its discretion in giving too much time in which to make the payments, the plaintiff, in not prosecuting error from that fault, may be regarded as having waived it. But this would in no way affect his right to insist on the performance of the order as made. He could elect to abide by the order, and insist on its performance, and if not performed, treat the order as at end, and ask a court to remove the cloud created by it upon the title to his land; and if thereby the petitioners lose what they had gained, it is the result of their own negligence.

2. As to the proper defendants. The proceeding for the establishment of the road was begun, as it had to be, by the petitioners. In such proceeding, in case of an appeal, it is required to be docketed by the probate court, under the style of “the petitioners as plaintiffs and the appellants as defendants.” Where proceedings in error are instituted, the petitioners are made defendants; and so, where a remedy by injunction is sought. And where, as in this case, the proceeding had, simply cast a cloud upon the title of a land owner, which he seeks to have removed, the petitioners are, for like reasons, the proper parties defendant. Until an absolute order has been made, under ■which the road can be opened, the proceeding must be regarded as pending and subject to the control of those by whom it was instituted ; no condemnation is effected, and the public acquires no right in the land as a highway; and so until then, it is not a necessary, nor proper party, to any suit affecting the proceeding.

It may not have been necessary to make the commissioners parties. They acted simply in a ministerial capacity, exercising quasi judicial functions. But they made no motion to be dismissed from the action; and joining them with the petitioners, though probably not necessary, does not render the judgment quieting plaintiff’s title, erroneous.

Judgment of the ci/rcwit court reversed, and that of the common pleas affirmed.  