
    EMINENT DOMAIN.
    [Summit (8th) Circuit,
    October 11, 1909.]
    Winch, Henry and Marvin, JJ.
    Big Cuyahoga Light, H. & P. Co. v. Turner, Vaughn & Taylor, Co.
    Failure to Give Opportunity For Agreement in Appropriation Proceeding.
    In an appropriation case, the jurisdictional fact that the corporation was unable to agree with the owners of the property sought to he appropriated as to compensation therefor is not shown by like propositions made to all the owners of different parcels of varying size and value, mailed to them the evening before suit was begun, without opportunity on their part to consider the propositions.
    ERROR.
    
      G. M. Anderson, for plaintiff in error.
    
      Allen, Waters, Young & Andress, for defendant in error.
   WINCH, J.

The original proceeding in this case was begun in the probate court by the plaintiff in error for the purpose of appropriating certain lands and rights of defendants in error. At the conclusion of the evidence on the preliminary hearing in that court, the probate judge dismissed the petition as to these defendants in error on the ground that the plaintiff had failed to bring itself within the requirements of See. 6415 R. S., which provides that “Appropriations can only be made when the corporation is unable to agree with the owner.”

It is said that the bill of exceptions shows that the plaintiff had made no tona fide effort to agree with the owners before it filed its petition in the probate court. The common pleas court took this vew of the case and affirmed the judgment.

We entertain the same opinion of the evidence in the ease.

The propositions made by plaintiff to these defendants were all alike, offered $1,000 to each, though their properties were of different values, and were mailed about four o’clock one evening and the petition filed shortly after seven o’clock the next morning, before .the defendants had any opportunity to consider them or make counter propositions.

The fact that the petition pended some time before it was heard does not change the situation. These sham offers could not ripen into bona fide propositions by the mere lapse of time after the owners had been brought into court. They then had a law suit to defend and not an opportunity to come to an amicable agreement with the plaintiff. The record disclosed no further effort to agree with the owners after the filing of the petition.

Judgment affirmed.

Henry and Marvin, JJ., concur.  