
    APPEAL OF DITCH PROCEEDINGS.
    Common Pleas Court of Fayette County.
    Mary A. Sever v. Commissioners of Fayette County et al.
    
    Decided, June 8, 1905.
    
      Ditches and Drains — Appeal from County Commissioners to Probate Court — What Constitutes a Pinal Order — Burden of Proof — Misapprehension by Jury — Verdict Against the Weight of the Evidence —Sections 6469 and 6471.
    1. In a ditch proceeding before a board of county commissioners, the final order from which an appeal may be taken to the probate court is the determination reached at the final hearing.
    2. The provision of Section 6471 that the appellants shall be plaintiffs on appeal from an order declaring for a ditch improvement, does not make it incumbent upon the appellants to assume the burden of proof; and where the appeal is from an order declaring for a ditch improvement, the burden is on the commissioners and petitioners affirming that the ditch will be conducive to the public health, and not on the appellants denying that such would be the fact.
    3. Where a proposed township ditch is substantially identical with an existing township ditch, except as to certain laterals as to which there is no evidence that they will be conducive to the public health, conevnience or welfare, a verdict by a jury who. misapprehending the instruction not to find for the improvement if the existing ditch would afford sufficient drainage, found in favor of the proposed improvement, will be regarded as against the evidence, notwithstanding the court did not have on review all the evidence before it, the view which the jury had of the proposed improvement being lacking therefrom.
    
      E. E. Sanderson, for plaintiff.
    
      Post & Reid, E. L. Bush, Creamer (& Creamer, contra.
    
      
       Affirmed, Sollars v. Sever et al, 8 C.C.(N.S.), 364.
    
   Dresbach, J.

Error to Fayette Probate Court.

This cause is presented to this court upon a petition in error from the trial of said cause on appeal in the probate court.

The defendants in error, the county commissioners, and petitioners for a ditch improvement, interpose motions to dismiss this petition in error, and assign among other reasons in support thereof, that it appears by the record that the appeal to the probate court from the action of the commissioners, finding that said ditch was necessary, and will be conducive to the public health, convenience and welfare, was hot taken within the time limited by law, and, therefore, that said probate court, on appeal, obtained, and this court, on proceeding in error, obtains no jurisdiction over said subject-matter for the purpose of again trying,- or reviewing, that question. The same objection was made in the probate court, and there overruled, and no cross-petition in error has been filed in this court to review that action; but, I here assume for the purpose of fairly considering the point, that no cross-petition in error is necessary, and that the point here made, if not going to the right to dismiss the entire petition in error, which also presents other and wholly separate questions, at least sufficiently raises the question of the right and duty of this court to review this branch of the case.

On October 8, 1903, the county commissioners caused an entry to be spread upon their journal as of date of August 26, 1903, materially changing the entry which had actually been placed on the journal of August 26. See generally as to the rights of parties under a nunc pro tunc order of perhaps like character, Miller v. Commissioners of Logan County, 3 C. C., 617, affirmed by the Supreme Court, without report, March 22, 1892. I mention this fact only to say in passing that the question here made does not turn upon this action of the county commissioners, because, under the construction of the law relating to the time within which such appeal must be taken, claimed by defendants in error here, the appeal is still taken too late, even if such entry speaks only from October 8. The original entry of August 26, and the amendment thereto, contains the usual finding for the improvement, but it further appoints the engineer, and orders him to perform the usual duties, and file his report by October 8, which time is fired for the hearing of questions of compensation and damages. On October 8, the board adjourned until October 20; then to October 22; then to November 5; then to November 10; then to November 11then to November 14; then to November 27; then to December 4, and then to December 10.

On December 10, as shown by the journal of the commissioners, occurred and was had what, in my judgment, was the “final hearing” referred to in General Code, 6470, and on that same day the notices in writing of an intention to appeal were filed by each of these plaintiffs in error, and within ten days thereafter the bond required was duly given. I have enumerated the various adjournments between October 8 and December 10 simply because (assuming as I do that-they were all of them necessary and proper), they illustrate one of the reasons which in my judgment support the view that the time within which the appeal may be taken begins to run from the date of this “final hearing,” as distinguished from the date of the making of any “final order.” This provision for appeal is special. It is a provision for an appeal, and not a provision for the prosecution on error. It therefore must not be .confused with a proceeding in error. The question therefore is to be answered by a construction of General Code,. 6470, and its application to the conceded facts shown by the record in this case. It may be assumed,although I am not now called upon to decide the point, that, if the time was being computed upon a prosecution of error, that the time would begin to run from August 26, certainly from October 8, because this statute does not fix the time within which error must be prosecuted, and therefore other statutes must be looked to for that purpose.

But that does not control this appeal, for the simple and sufficient reason that this statute, General Code, 6469, does expressly provide the manner and within what time the appeal shall be taken. General Code, 6469, does not mean that at the time of the making of any “final order” the party desiring to appeal from the action of the commissioners in making such “final order” shall then give their written notice of intention to appeal therefrom, and have the amount of the appeal bond fixed, and within ten days after the making of such “final order” give’the bond (unless the “final order” is made at the’“final hearing before them”), and yet this is substantially the construction claimed for it by defendants in error. If the words “final hearing” are to be construed as meaning any “hearing” at which any “final order” is made, then, as a number of “final orders” may be made in the course of this proceeding, we would have more than one “final hearing before them. ’’ Such a construction does palpable violence to the plain and direct language used in this statute. The word “final” qualifying “order or judgment” in General Code, 6469, is here used in the sense of “conclusive, decisive and final judgment,” while the word “final” qualifying “hearing before them” is used in the sense of “pertaining to the end or conclusion-; last; terminating” (see Webster). The language used in General Code, 6469, providing for this appeal, is in my judgment, too clear to need further comment. The point is not well taken; the several motions to dismiss are overruled. I do not find anything else of sufficient importance in the motions to justify taking space to comment upon it in this written memorandum of my reasons for the conclusions which I have reached in this ease.

This brings.me to a consideration of the errors complained of by the plaintiff in error.

The court below in its general charge to the jury said:

‘ ‘ The burden of proof is on the appellants, and they must show by the preponderance of evidence, that the proposed improvement will not be conductive to the public health, convenience or welfare, of the community through which the proposed improvement passes.”

The court also refused to give the following charge requested by plaintiffs in error:

“Before the jury can render a verdict for the defendant, it must find by a preponderance of the evidence, that there exists the necessity, in order to promote the public health, convenience or welfare, for the construction of the proposed ditch and that its construction will be conducive to the public health, ’ convenience and welfare of the public generally in the neighborhood through which the proposed improvement will pass. ’ ’

To the charge as given, and to the refusal to give the above charge requested, exceptions were duly taken by the plaintiffs in error.

It appears further, from the record, that “Before the statement of said cause and before any evidence was introduced, said Mary A. Sever on behalf of herself and co-appellants, William Ging and C. & M. Y. R. R., demanded of the court that it order and direct defendants to assume the burden of proof, and to open and close said case, and that she and her said co-appellants be relieved from assuming the burden of proof and opening and closing said cause, but the court refused to make such order, but on the contrary, held and ordered that said Mary A. Sever and her said co-appellants had, and must assume the burden of proof, and open and close said cause, to which the said Mary A. Sever at the time excepted. ’ ’

Did the court err in these particulars ?

What was the issue 1 Under General Code, 6469, and this appeal, one issue was: “Whether said ditch will be conducive to the public health, convenience, or welfare.”

To properly determine this branch of the case it was necessary that this inquiry as to this ultimate fact be answered, yes, or no.

Who necessarily affirmed it ? Certainly the petitioners for the improvement and the county commissioners; and these plaintiffs in error denied it.

Greenleaf in speaking of the “Burden of proof, upon which party it lies,” says:

“A third rule which governs in the production of evidence is, that the obligation of proving any fact lies upon the party who substantially asserts the affirmative of the issue.” 1 Greenleaf, Evidence, Section 74.

In view of the claim of the defendant in error that as the jury are entitled to take what they saw on their view as evidence, that strictly speaking neither party has the burden of proof, the following language of the Supreme Court of Massachusetts in Central Bridge v. Butler, 68 Mass. (2 Gray), 130, 132, seems pertinent:

“The burden of proof and the weight of evidence are two different things. The former remains on the party affirming a fact in support of this case, and does not change in any aspect of the cause; the latter shifts from side to side in the progress of a trial, according to the nature and strength of the proofs offered in support or denial of -the main fact to be established. ’ ’ Quoted in note to Section 74 of 1 Greenleaf, Evidence, with many-other authorities.

It is settled in this state that what the jury observe on such view is evidence (Williams v. Lockoman, 46 Ohio St., 416; Lake Erie & W. Ry. v. Commissioners of Hancock County, 63 Ohio St., 23); therefore, when the jury go out and make the view they have then received part of the evidence. It is the proper and logical thing to do to take part of the evidence and then stop and say, “here at this point we determine the burden of proof. If no more evidence is introduced we can not say which party would fail, therefore, the burden of proof is not upon either party.” Clearly such a method would lead to absurb consequences.

The burden of proof must be determined from the issues. The test is to be applied before any evidence is introduced, and the mandatory provision for this view, and then the statement that either party may offer evidence, is not, in my judgment, a sufficient indication of legislative intention to establish an arbitrary rule, which seems to do such violence to justice and reason and the accepted rules of practice.

But, it is also contended by defendants in error, that the matter has been settled by statute, and the- provisions of General Code, 6471, that “the appellant shall be plaintiff therein and the county commissioners and petitioners defendants,” is cited in support of such claim. In my judgment this simply provides a style, or name, for the case. We know that when error is prosecuted the style of the case is reversed. It was convenient to have some style, or order of name, and that provided seems quite a natural one. Surely the courts are not warranted in construing this simple provision to indicate a legislative intention that the' citizen whose property is sought be taken under the power of eminent domain for a public use, shall be compelled to assume the burden of proving the non-existence of the facts which are depended upon to justify and authorize the taking of his property. Not fairness and justice will be advanced by such eonstruetion, but the contrary. In Anderson v. Commissioners of Hamilton County, 12 Ohio St., 635, on page 643, the court say:

“The requirements of a statute authorizing the taking of private property for public use, ought to be strictly pursued. ’ ’

By the terms of General Code, 11046, the burden of proof is expressly placed upon the corporation seeking to condemn land, to prove similar questions.

The style of the case does not determine the burden of proof, nor the order in which evidence should be introduced. In a broad sense, the order of the evidence should conform to the burden of proof. While just turned around in its statement, it seems clear that that is just what is meant by the provision of -the general statute, Section 5190, Rev. Stat., that;

“3. The party who would be defeated if no evidence were offered on either side must first produce his evidence, and the adverse party must then produce his evidence.”

The case of Emig v. Commissioners of Clark County, 1 N. P., 320, is directly in point. It is suggested that that case is not well considered. I think otherwise. True, the rank of the court is subordinate, but that does not make its reasoning any the less clear and convincing.

Stephens, Law of Ev., 175, Article 93, states the law as follows:

“Burden of proof. # * * He who affirms must prove. * * * Whoever desires any court to give judgment as to any legal right or liability dependent on the existence or non-existence of facts which he asserts or denies to exist, must prove that those facts do or do not exist.” See to the same effect, 1 Phillips, Evidence, 552; Best, Evidence, 265, 266; Starkie, Evidence, 585, 586; Wharton, Evidence, Sections 353, 357.

And on page 178 of Stephens, Law on Ev., in the notes it is said:

“The general burden of proo.f upon the main issue does not really shift from the party upon whom it rests at the beginning, but remains upon him throughout the trial.” Citing numerous authorities.

In 2 Am. & Eng. Enc. Law, 649, “Burden of proof” is defined to be “The obligation imposed upon a party who alleges the existence of a fact or thing, necessary in the prosecution or defense of an action, to establish it by proof. ’ ’

On page 655, it is said:

‘ ‘ Burden of proof and weight of evidence distinguished. The burden of proof remains on the party affirming a fact in support of his case, and does not change in any aspect of the cause; the weight of evidence shifts from side to side in the progress of a trial, according to the nature and strength of the proofs offered in support or denial of the main fact to be established. ’ ’

On page 656, the following rule laid down in Bailey’s Onus Probandi, is quoted with approval:

“Rule 1. The issue must be proved by the party who states an affirmative, not by the party who states a negative.”

In the absence of authoritative decisions in this state on this subject it seems to me that some light is thrown on the subject by the following eases from other states:

The fact that one party is made plaintiff and another defendant in a case by virtue of the statute has nothing to do with the question of burden of proof; in other words, burden of proof is not governed by the style of the case. Shaw v. Abbott, 60 N. H., 564.

The burden of establishing the usefulness and necessity of a road for public or private purposes is wholly and exclusively upon the petitioner for the right of way (Hays v. Briggs, 3 Pittsb. Rep., 504). The burden is on the plaintiff to prove that the land sought to be condemned is reasonably necessary. Spring Valley Water-Works v. Drinkhouse, 92 Cal., 528.

In an action to open a street the burden is on the plaintiff to allege and prove the use is public. St. Louis v. Franks, 78 Mo., 41.

In my judgment, it is clear that the court erred in its charge to the jury above quoted and in the refusal to charge as requested.

Is this such prejudieal error as necessitates the reversal of this case ?

In McNutt v. Kaufman, 26 Ohio St., 127, the syllabus in full is as follows:

“A misdirection of the jury, as to the burden of proof, is error for which the judgment will be reversed at the instance of the party prejudiced thereby.
“A reviewing court having found such error to exist, will not look into the testimony for the purpose of ascertaining whether the verdict is sustained by the weight of the evidence.”

On pages 130 and 131 the court say:

“It is contended, however, for the defendant here, that the judgment should not be disturbed on account of this error in the charge, because the testimony (the whole of which is set out in the record) shows, as it is claimed, that the verdict was clearly right. In answer, it is enough to say that the plaintiffs in error are entitled to have the issues of fact in the case determined by a jury properly instructed as to the burden of proof.”

This case is decisive of the proposition. In justice to the court below, however, I want to say that I do not think this difficult question was there quite fairly presented by either side. Both were looking for an advantage, and yet, I can not say that either side waived the point, or that they were not within their legal rights. It is perhaps true that counsel had not considered the matter with the care which should have been given to the subject.

The fifth assignment of error is that: “The verdict is contrary to the evidence and the law.”

In this connection I desire also to refer to the claim that the proposed improvement is substantially identical with an existing township ditch, and that, as it affirmatively appears that the township trustees have not refused to act, that the county eom- • missioners had no jurisdiction. That the proposed improvement in all respects except the three laterals is substantially identical in route with the existing township ditch, can not be successfully denied, but the addition of these three laterals prevented that ground of complaint being well taken in the petition in error prosecuted direct from the action of the county commissioners and which I have already decided. I speak of this simply to dispose of it, and to prevent misapprehension in regard to what I further say of the case.

I now recur to the fifth assignment of error: The court in its general charge said:

“If you find from the evidence that a public township ditch has been heretofore established along the line of' the proposed improvement, and that such ditch, if properly cleaned out, would afford sufficient drainage for the lots and lands sought to be drained by the proposed ditch, then you should return a verdict against the improvement.”

In special instruction No. 1, requested by plaintiffs in error, and given to the jury, the court also said:

‘ ‘ If you find from the evidence that a township ditch has been heretofore established along the line of the proposed improvement, and that such ditch, if properly cleaned out to the depth at which said ditch was orginally constructed, would afford sufficient drainage for the lots and lands sought to be drained by the proposed ditch, as located by the county commissioners, then your verdict should be against the establishment of the proposed improvement.

In my judgment these instructions correctly and clearly state the law on the point which they were designed to cover. Lake Erie & W. Ry. v. Commissioners of Hancock County, supra. I can state my judgment under this fifth assignment of error more clearly by first speaking of the entire improvement, except the three laterals, and then speaking of the three laterals, and then the entire improvement as ordered by the commissioners including the laterals.

In my judgment there is no substantial conflict in this evidence upon the proposition that if this original township ditch was properly cleaned out to its original depth, and so kept cleaned out, that it would afford entirely adequate drainage to all the lots and lands sought to be drained by the proposed improvement.

Independently of the three laterals, then, it is manifest that the jury disregarded the law as.given to them in the above charge of the court. In other words, independently of the three laterals, there is substantially no evidence to support the finding of the jury on that point.

Coming, then, to the three laterals: Does the evidence justify the finding of the jury that the establishment of these three laterals, or either of them, “will be conducive to the public health, •convenience, or welfare?” The statement on this point can not be made with the same positiveness as that which I have made with reference to the main ditch, bnt the finding of the jury on that subject is certainly clearly and manifestly against the weight of the evidence.

Indeed, if we eliminate conclusions, which it seems to me are clearly shown by the evidence of the parties stating such c'on- ■ elusions to be based upon a wholly erroneous conception of the law, in my judgment there is substantially no evidence to sustain the claim that the establishment of these three laterals, or any one or more of them, will be “conductive to the public health, convenience, or welfare.”

. If my conclusions as thus stated separately are correct, I can not conceive how by their combination the facts are changed, or that the law applicable to those facts would be different.

The mistake in this regard was not with the court, except that it should have set the verdict of the jury aside. The mistake was made by the jury and arose either out of a disregard of the evidence, or the application to the evidence of wholly erroneous notions of the law, notwithstanding and in disregard of the charge of the court.

I am not unmindful of the favor with which the courts have looked upon improvements, which have for their purpose the drainage of this country. Much can be said on that general subject, and I am not aware that the bent of my mind is opposed to that liberal view, on the contrary I strongly favor it; but, there certainly is a limit, and that line can not be crossed without resulting in unjustifiably taking private property, not to promote the general welfare but solely to advance the advantage of individual men, as distinguished from the public. In Lake Erie & W. Ry. v. Commissioners of Hancock County, supra, the court, upon page 27, say:

“The law undoubtedly requires something more than mere private and individual advantage to sustain an improvement of this nature.”

And the Supreme Court seemed to approve the following language quoted from the charge of the. court below in that case:

“The prosperity of each individual conduces, in a certain sense, to the public welfare, but the fact is not sufficient reason for taking other private property to increase the prosperity of individual men.”

In Chesbrough v. Commissioners, 37 Ohio St., 508, the court, on page 516, say:

' “Public welfare, health and convenience, in this connection, are terms used in contradistinction for a mere private benefit.”

Again:

“It is a finding that it is for the public welfare as distinguished from a mere private'advantage.”

The Constitution forbids such an invasion of private property. See Reeves v. Treasurer of Wood County, 8 Ohio St., 333, where on page 346, the court say :

“But it is a much more serious subject of inquiry, whether this section does not, in effect, authorize the entry upon lands and the construction of drains, when demanded by private interest merely, without reference to- the public interest, convenience, or welfare. It seems to us clear that it does.”

The principles decided in the case of McQuillen v. Hatton, 42 Ohio St., 202, seem to me to be directly in point here. The syllabus of that case in full is :

“The facts being ascertained, the question whether or not a ditch will conduce to the public health, convenience or welfare, within the meaning of Bevise,d Statutes, Section 4511, so that it will be of public use, is a question of law; and the mere fact the larger and better crops may be raised on two farms sought to be drained, does not authorize the establishment of the ditch.”

Without stopping to quote from it, I cite and ask counsel to read the entire opinion in that case.

But it requires an examination of the facts in this ease before the rules of law, just quoted, can be applied.

Is it the duty of the court for that purpose, to look at the facts as disclosed by the record? A contemplation of the size of this record, and of the rather disagreeable character of the task, would certainly incline one to let the responsibility on this branch of the ease rest where we find it, but I am forced to the conclusion that that would be an evasion, rather than an honest discharge of a judicial duty.

It is claimed by defendants in error, in substance, that because the jury are authorized to consider and weigh as evidence, what they saw upon the view, that, notwithstanding the recital of the record that it contains all of the evidence, that, in the nature of things, that recital can not be regarded as true, and that, therefore, the court does not have all of the evidence before it, and that, the rule that even in a case where a review is authorized, the court will not reverse on the weight of the evidence unless it affirmatively appears that it has all of the evidence before it, applies, and is decisive of this branch of the ease.

If the conclusions which I have come to, with reference to findings from the evidence, involved taking a different view from the jury upon a question of fact upon which the evidence was substantially conflicting (and by that I mean a pure question of fact, as distinguished from a question of law, or a mixed question of law and fact), then the question raised above would have direct application. That question, in my judgment, is one of great difficulty, and much can be said upon either side of it. But I do not feel that that question is necessarily involved in reaching the conclusions which I have come to on this branch of the case. In my judgment the jury misapprehended, or disregarded the law as laid down for them in the charge of the court. Applying the law last above quoted to the substantially admitted facts, the verdict of the jury is substantially without evidence to support it. Nor am I unmindful that as I do not know what the jury saw on the view that, in a certain sense, I do not have all of the evidence before me upon which the jury may have based its findings on this point. But it seems to me that the cases of Lake Erie & W. Ry. v. Commissioners of Hancock County, supra, and McQuillen v. Hatton, 42 Ohio St., 202, clearly indicate that it is the duty of the court to examine the record upon a question of this kind. The same view by the jury was provided for when those eases were determined. It may be true that those cases do not go as far as I have gone in the case at bar, but surely the principle is the same, and I feel that I ha,ve not carried that principle beyond its logical limits.

The circuit court of this circuit in passing upon another branch of this- litigation said:

“And as I have already said, there is no provision in this section or in any section that we have examined, that provides for the taking of an exception, but a subsequent section does provide that any party who is interested in the improvement who feels aggrieved at the finding of the commissioners, may appeal to the probate court, and there the entire matter may be heard again upon evidence; from the conclusion in that case or the judgment that may be found in that case, error may be prosecuted to the court of common pleas, in which instance a full bill of exceptions may be taken and the errors complained of brought upon the record by its office. ’ ’

I do not say that this language necessarily warrants my conclusions, but to my mind it has considerable significance. And, in that connection, the following language used by the court in Dellogg v. Ely, 15 Ohio St., 64, on pages 66 and 67, seems pertinent :

“It is evident enough, that when the proceedings in the probate court, on inquiry of damages claimed by him, were ended, the plaintiff below might have proceeded on error to test their legality, and, if erroneous, to reverse them. And when the final order establishing the ditch was made by the county commissioners, he might then have proceeded, on error or by appeal, to question their power and jurisdiction, and to undo what may have been erroneously done. And these remedies, if they had been resorted to, would have had these important recommendations — that whatever had been done erroneously or without authority of law, would have been set aside; officers would have been instructed as to their duties, and parties as to their rights; and proceedings, recommencing from the erroneous point of departure, would have been carried on in strict conformity to law, with all just interests respected, and all rights conserved. ’ ’

That there is nothing in the general policy of the law which conflicts with the theory that a review should be allowed in such a case as this, see the strong ease of Blue v. Wentz, 54 Ohio St., 247, and in Ferris v. Bramble, 5 Ohio St., 109, in speaking of a principle much like this, the court say, page 112:

“The remedial statute conferring this jurisdiction was entitled to a liberal construction. ’ ’

In making the disposition which I have of this case, I have had fully in mind its great importance to the defendants in error as well as to the plaintiffs in error. I presume the principal complaint will be with regard to the conclusions which I draw from the record.

On this subject I simply suggest a careful, candid, unbiased examination of the record.

I do not find any of the other errors assigned well taken. On that relatin'g to peremptory challenges, see Cincinnati v. Neff, 19 Bull., 404; Moore v. Union, 23 Bull., 48, and Gram v. Sampson, 4 C. C., R., 490.

For the errors which I have enumerated, the cause is reversed, and remanded to the probate court for further proceedings.  