
    The Northern Ohio Railway Company v. The Commissioners of Hancock County et al.
    
      •County ditches — Authority of county commissioners to locate and construct — Sections 4447 and 4448, Rev. Stat. — Commissioners may change terminus of ditch, when.
    
    1. County commissioners have authority, under section 4447 of the Revised Statutes, to order, in the same proceeding, a ditch to be located, constructed, and tiled. It is not required that there shall first be an open ditch constructed, and thereafter a separate proceeding to have it tiled.
    2. Under section 4448, of the Revised Statutes, the commissioners may change either terminus of a ditch before its final location, when in their opinion the object of the improvement will be bettter accomplished thereby; and their official action making the change raises the presumption that there was legal cause therefor.
    3. It is not a valid objection to the establishment of a tiled ditch that it is located, in part, longitudinally, or otherwise, on the right of way of a railroad company, unless it is made to appear that the proper use of the right of way by the company will be thereby defeated.
    4. The syllabus in the preceding case, except the 5th paragraph, is applicable to questions involved in this case, and is here adopted.
    (Decided May 22, 1900.)
    
      Error to the Circuit Court of Hancock county.
    This case grows out of a proceeding before the commissioners of Hancock county, for the establishment of a county ditch. The proceedings were had about the same time as those in the preceding case; and though they relate to a different ditch, ■ both cases reached this court in the same way, and at the same time. In many respects the cases are not substantially different, but some questions are made in this case that were not presented in the other case.
    
      John B. Cooler nm and Jason Blackford, for plaintiff in error.
    The grounds of error which we shall more particularly urge will be in the order set out in the petition in error and the motion for a new trial.
    First. As to the refusal of the commissioners and of the jury to give this company any compensation whatever for land taken and for damages done to the property of the appellant.
    Mr, Beatty testifies the land taken is worth $25.00; there is no claim anywhere that no land is taken from the company and that the land taken has some value. Unless compensation is paid the commissioners have no jurisdiction whatever to locate this ditch on the .appellant’s land. Section 19, Article 1, Constitution of Ohio; section 4401, Revised Statutes; Anderson v. Commissioners, 12 Ohio St., 635; Maude Carlin v. Hosler, Treas., 58 Ohio St., 694.
    It will be seen by the transcript from the commissioners records filed in this case, the commissioners undertake to change the route from that prayed for in the petition, and surveyed and estimated by the engineers. The commissioners assume to change the route without any reason whatever therefor and with neither a petition nor asking for a change. Allyn v. Depew et al., 28 Ohio St., 619, 623.
    It is an underground drain asked for in the petition in our case and located by the commissioners in their proceedings and on appeal is shown by the evidence to be what was wanted. This the township trustees alone had jurisdiction to consider, and the commissioners’ proceedings are wholly void, and consequently the acts of the probate court on appeal are void.
    We maintain further that there can be no public health, welfare or convenience involved in the making of this underground drain, and there is not a word of evidence in the case from which the jury would be justified in finding such a fact. Ferris v. Bramble, et al., 5 Ohio St., 109; Bothe v. R. R. Co., 37 Ohio St., 147.
    The damages or compensation for the land taken must be paid in money, or secured to be paid to the acceptance of the owner, before the opening of the road can be ordered.
    There is error then in the probate court ordering this ditch for no compensation has been tendered or paid. McQuillen v. Hatton, 42 Ohio St., 202; Smith v. A. & G. W. R. R. Co., 25 Ohio St., 91
    The power to locate and construct a ditch arises from the right of eminent domain, and the requisite steps must be strictly followed. Sessions v. Crunkilton, 20 Ohio St., 349.
    On the question of the practicability of the route and necessity for the location across the roadbed, we cite Railway Co. v. Railway Co., 2 Bull, 189; 7 Dec. Re., 364.
    Notice in our case that the petition calls for this ditch to run along the north side of the railroad to a sufficient natural outlet. The engineer made an estimate of the cost on this route at $18. The commissioners in their transcript say that because the company put in claims for compensation and damages, they will change the route to cross the roadbed and make the company put in a new culvert. This culvert is shown by the evidence to be very expensive and not at all necessary. Morehouse v. Norwalk, 6 Bull., 267; 8 Dec. Re., 199.
    If the proceeding is only colorable, and the true object is to secure farm drainage for Shoemaker, then the proceeding is void. Blue v. Wentz, et al., 54 Ohio St., 247; Washburn on Eas., 23, 211, 336; Tootle v. Clifton, 22 Ohio St., 247; Bushfield v. Meyer, 10 Ohio St., 334; Crawford v. Rambo, 44 Ohio St., 279; 26 Pa. St., 407.
    The commissioners have no authority to locate a ditch longitudinally along the right-of-way. This the petition asks to have done and the commissioners on a change of route also seek to do this. Railway Co. v. North et al., 103 Ind., 486.
    
      Charles E. Jordan and John Poe, for defendants in error.
    This claim for compensation and damages was filed before the change. So the complaints are in substance :
    1. The commissioners allowed it no compensation for lands taken.
    2. The commissioners allowed it no damages to the remainder of its lands. And that the jury in probate court committed the same errors. Also that the commissioners are not authorized to construct tile drains.
    That the commissioners may construct a tile ditch is provided by section 4447. See also sections 4467, 4468, 4461.
    
      Observe: The commissioners clearly have the authority to locate and construct tile drains.- But can one claim compensation for land taken within the meaning of this statute, if, forsooth, a tile drain is put through his lands. The tile is covered up out of his way. He uses his lands, all of his lands as before, even to better advantage than before. Dirt that is dug out of a trench and put back into the trench is not “land taken” within the meaning of this law.
    Has such owner any land taken? Land is measured by the extent of its surface, not by the wagon load. The earth even in such case all remains in the owner’s deed that it ever conveyed; nothing is lost; no title is appropriated or transferred. He has the same title he always had. His title is as large and full and complete as ever before, so no land is taken by the process of tiling. Hence if this is true, the same is true where all that is done is to burrow through a right of way of a railroad company at a point say nine feet below the surface. The title of the company is as broad and covers precisely the territory, the land, it covered before. No “land taken,” Miller v. Weber, 1 Circ. Dec., 77; 1 C. C. 130.
    Observe: This is not one of the cases which comes within the meaning of the statutes authorizing the jury to assess either compensation or damages to the owner. This section contains a separate provision for this precise class of cases, and by its terms it disposes without a jury of the question of the expenses of making this change. This company had no right to claim damages for'this change for it is not included in the damage section, but it is ordered under this section and the cost of it assessed according to its provisions.
    
      It is conceded by the record that this culvert was necessary to let the water across this right of way, for it had been put in before and the damages here claimed are for lowering it. The commmissioners order this under section 4495 and no damage is provided in such case.
    It will be observed from the statutes above (cited) that the jury must view the situation, and no evidence is required for thei r decision. True, either party may oifer evidence and when they do the jury from their view and the evidence reach, their conclusion. It is apparent from this that no court could set aside a verdict in such a ease for insufficiency of the evidence, for that part of the evidence comprised in the view is never in the record and cannot be. The jury may throw away or discard the evidence entirely and how will any court say they are wrong, for the reviewing court nor the trial court ever has the view. So the jury control in a peculiar sense the findings in these appeals. Williams v. Lockoman, 46 Ohio St., 416.
   Williams, J.

The petition on which the commissioners acted, prayed that the ditch it was sought to have constructed, should be tiled; and the commissioners so ordered. This, it is contended, the commissioners were without authority to do. But that authority, we think, is conferred by section 4447, of the Revised Statutes, which provides that: “The commissioners of any county * * * may cause to be located and constructed, straightened, widened, altered, deepened, boxed or tiled, any ditch, drain or water-course, or box or tile any portion thereof.” This statute does not require, as counsel contend,that ¿here shall first be an open ditch constructed, and thereafter a separate proceeding to have it tiled. The statute was designed for practical purposes, and enables the commissioners in the same proceeding, when deemed advisable, to order the construction of a tiled ditch, instead of going through the formality, and imposing upon the landholders interested the expenses, of two successive proceedings to accomplish that end. This authority is not affected by the fact that a subsequent statute has conferred the power on township trustees to locate underground drains. A tiled ditch may be an underground drain, but it is still a tiled ditch within the purview of section 4447; and all underground drains are not necessarily made of tile. Until the enactment of that statute the trustees had not been invested with the power to make tiled or other underground drains, and the difference in the phraseology of that statute from that of section 4447, fails to establish that the commissioners are not, by that section, clothed with like power.

In the petition, one of the descriptive calls of the ditch is to run “along the line of the Northern Ohio railroad to the natural watercourse, and there terminate;” and, in the order establishing the ditch that terminus was changed by extending it a short distance down the stream, “far enough” as stated in the record, “to give sufficient outlet for the ditch.” By this change of the terminus, it is claimed the whole proceeding became void, because, it is said, the ditch thus established is not the one prayed for in the petition. But authority for such change is found in section 4448, of the Revised Statutes, which provides that “the commissioners may change either terminus of such ditch before its final location, if the object of the improvement will be better accomplished thereby.” The statement in the record that the change was made in order to provide sufficient outlet for the ditch, sufficiently shows that it was necessary to better accomplish the object of the imju'ovement. Besides, the change made was an act done in the exercise of jurisdiction already fully acquired, and an entry on the record showing the reason for the change was not necessary to confer jurisdiction, nor required by the statue. The official act of making the change raises the presumption that there was legal cause therefor. It was not a change of the route of the ditch, within the contemplation of section .4489.

The further claim is made in this case, that the location of a part of the ditch in question, on the company’s right of way, parallel with its used roadway, was without authority; and in support of that claim R. R. Co.’s v. North, 103 Ind., 486, is cited. It urns there held that: “In the absence of statutory authority a ditch cannot be ordered to be constructed longitudinally on a right of way of a railroad.” By our statutes, the power to establish'and construct county ditches is conferred on the commissioners in general terms, and without restraint or qualification oh. account of the nature of the use or ownership of the lands on which they may be located. And it is the settled rule in this state that, while property already appropriated in the proper exercise of the power of eminent domain cannot be taken for another public use that will wholly defeat or supersede the former use, unless the poAver to make the second appropriation be granted expressly or by necessary implication, land held by a corporation, whether acquired by purchase or appropriation, may, subject to that limitation, be made subservient to other needed public uses. Railroad Co. v. Belle Centre, 48 Ohio St., 273. There is nothing in this case to show, nor does it seem possible, that the construction of the contemplated ditch will be incompatible, or interfere, with the exercise, by the railroad company, of any of its franchises.

The questions in this case so far as they relate to the public utility of the ditch are substantially the same as in the preceding case. What is said there is applicable here, and disposes of that branch of this case. No further consideration of it is needed here.

In regard to the claim of this plaintiff in error for damages, the record shows that the court jjroperly instructed the jury, giving in charge, in substance, the instruction requested and refused in the preceding case. No exception was taken to the charge, nor request made for further instruction.

But with respect to compensation for land appropriated for the ditch, the same error occurred that was committed in the preceding case, and for that error alone the judgments below will be reAmrsed and the cause remanded to the probate court for a new trial, no other error being discovered in the record.

Judgment accordingly.  