
    Jordan Anderson and wife v. The Commissioners of Hamilton County.
    The act of 14th March, 1831, for opening and regulating roads and highways, required that application for opening a county road should be by petition to the commissioners of the county, be signed by at least twelve freeholders of the county, and that notice should be given by advertisement set up at specified places. That, “on the petition being presented, and the commissioners satisfied that notice has been given,” as required, they should appoint viewers and a surveyor, who were to make a report, and return with it a survey and plat; and if the commissioners should be satisfied “ that such road will be of public utility, and the report of the viewers being favorable thereto, they shall cause said report, survey and plat to be recorded, and from thenceforth-said road shall be considered a public highway.” Held :
    
      1. That such record was prima facie evidence of the establishment of the road ; but that on a question between the owner of land over which the road was laid out and the county commissioners, whether they might enter on the land to construct the road, the owner of the land might show that, in fact, the petition was not signed by twelve freeholders, and no notice had been given as required by the statute.
    2. When a road has been established by a proceeding under the statute, it can not be vacated by a contract or arrangement between the commissioners and an owner of the land, over which it has been laid out. Evidence of such a contract or arrangement, offered to invalidate the effect of the record establishing the road, is incompetent.
    Error to the district court of Hamilton county.
    The original petition states that Elizabeth Anderson, wife of Jordan Anderson, is in possession of, and seized of a perpetual leasehold estate, in the land along the north bank of the Whitewater canal (describing it), which is claimed by the county commissioners as a site for a county road. That the latter are endeavoring to obtain possession 'thereof, for the purpose of using it as a prolongation of the lower river road, and that by the procurement and consent of the said commissioners, the Ohio and Mississippi railroad company have entered upon the premises, broken down the fences, and are removing large quantities of earth, etc., under the pretense that these acts will assist the commissioners in grading said premises, and preparing them for use as a county road, and as a prolongation of the lower river road. The plaintiff s allege that no part of said premises has ever been a county road, but the same were in the peaceable possession of Henry Darby, the father of Elizabeth Anderson, up to the time of his disease, and were used by him as a part of his farm, and have been set apart and conveyed to her by her brothers and sisters, the co-heirs with her of Henry Darby. The petition then alleges the making of the contract hereafter set forth. It alleges that the consideration of that contract was this— that at the time of the making thereof, Henry Darby had opened along the bank of the canal, a passway for his neighbors only; that the county commissioners claimed that a county road had been created by virtue of the proceedings hereafter set forth, of which Darby denied the validity, “ for want of notice and other defects.” That finally the dispute was compromised between these parties, by the acceptance from Darby of the site of the lower river road, now used and described in the contract, on land belonging to Darby, and by the abandonment, on the part of the commissioners, of their pretended claim to the site of the road along the bank of the canal. It states that the commissioners then constructed the road over the land thus received from Darby, and were receiving tolls for the travel thereon, and abandoned all claim to the site along the bank of the canal.
    The plaintiffs claim that the acts and conduct of the defendants complained of, tended to disturb their title, and that if not enjoined, great injury would be done to them. They, therefore, prayed that their title might be quieted, and the defendants might be enjoined, etc.
    The answer of the county commissioners, claims that the strip of land in controversy is covered by a county road, and sets forth the records hereafter described; that it was opened and worked as such, and denies that the county commissioners have ever released the right of the public thereto. They say, that by “ an act to provide for the extension of the lower river road,” passed March 22, 1850, they were authorized "to extend the same, and that they, located it on the site of the county road described in said record, and contracted with Samuel Jennifer to construct the same. “ That said road not being opened the width necessary for the construction of a good macadamized road, and as was authorized by the proceeding establishing the same, the commissioners went upon the premises with the view of opening the same the necessary width. That said Henry Darby objected to the widening of said road to the extent of sixty feet (but did not deny the existence of a county road), or in lieu thereof, desired that a new route for the extension of said road should be taken through his premises, by -which the road would be shortened; and the commissioners, after much persuasion from A. B. Darby, Esq., and believing that they were not confined to the county road in locating said c extension of the lower river road,’ and being then short of funds for said improvement, they consented to the alteration of the extension.” But they deny that they assented to any alteration or vacation of the county road. They say that they intend to “ maintain said-road provided for in the contract with said Darby, as a branch of said main road, but should it be necessary, they will abandon said last named road, and re-locate the extension of the lower river road over the county road adjoining the canal aforesaid.”
    The claim of the plaintiffs against the Ohio and Mississippi railroad company was settled by the parties, and it filed no answer.
    On the trial, in the district court of Hamilton county, the defendants in error admitted, that Elizabeth Anderson, the wife of Jordan Anderson, was seized in fee of the land in controversy.
    The defendants in error then offered in evidence what purported to be, the “ record of an alteration of the river road between sections 19 and 29, in Delhi township,” in said county. It is therein stated that the petition set forth was presented at the June road session, in 1849, of the county commissioners. The petition is in these words: “ To the commissioners of Hamilton county — Gentlemen: The undersigned, citizens of Hamilton county, residing in the vicinity of the road herein prayed to be allowed, respectfully present their petition that so much of the road running along the Ohio river, between Cincinnati and North Bend, as lies between the bridge over the Whitewater canal, situated in section 16, in the township of Delhi, and the canal bridge over the same canal, situated in section 29, in the same township, be changed from where it now runs along the bank of the river, and placed on the north side of said canal, and as in duty bound, etc. Cincinnati, 15th April, 1848.” Signed by twenty names. Then follows this entry: “ Whereupon the said commissioners, being satisfied that legal notice had been given and bond having been filed, appointed O. D. Williams, Robert Orr, and Noble Yesey, viewers, and James P. Williams, surveyor, to meet at the office of H. F. Sedam, Esq., on the 14th day of June, in the year one thousand eight hundred and forty-eight, at ten o’clock; and directed the auditor to issue the following order, which was done accordingly.” Then follows the order of the auditor directed to the viewers and surveyor, beginning in these words: “You have been appointed by the commissioners of said county to view and survey the following proposed alteration of a county road to-wit,” etc. Then follows the affidavit of the surveyor and viewers, and their return, which is in these words : “ We, the undersigned, met at the time and place named in the within order, and after being duly sworn, proceeded to view the said alteration, and are of opinion that the alteration should be made and recommend it. June 14,1848. See surveyor’s return for courses and distances. Width, sixty feet.” It is signed by the-viewers and surveyor, and attached thereto is the surveyor’s plat.
    There were no other clauses in these proceedings, in reference to the notice given, in reference to the character and residence of the petitioners, or in reference to the character of the road.
    The plaintiffs objected to the admission of these proceedings as evidence, because they did not show affirmatively, first, that the petitioners were freeholders residing in the vicinity ; secondly, that the road which the petitioners wished to be altered was a county road; and thirdly, because they did not show that legal notice had been given. , But the court overruled these objections, and admitted the record as evidence.
    The plaintiffs then offered a witness to prove that at the time of the date of said petition, and at the. time of the granting thereof by the county commissioners, there were not twelve of the signers of said petition who were freeholders, or were residents in the vicinity of said road where it was to be laid out or altered. But the court excluded the evidence, to which the plaintiff excepted.
    The plaintiffs then offered to prove that no notice had been g'ven as required by the statute, but the court excluded the evidence, to which the plaintiffs excepted.
    The plaintiffs then offered in evidence the following con•tract: “ The undersigned have made an arrangement to change the end of the location of the lower river road, so as to strike the hill road about half a mile above the mouth of Rapid Run, and that Samuel Jennifer transfers to Henry Darby so much •of said contract as lies between Schumann’s lower line and the lower end of the road, being 185 rods, more or less, at the same price per rod of Jennifer’s contract for the whole road (that is, at the rate of two thousand dollars per mile), on the same conditions, that is, one half cash and the other half road bonds, the cash part to be paid eighty per cent.; thirty •days on the work done according to the estimate of the engineer, and remainder at the time the contract is completed; and said Jennifer is allowed, beside the two thousand dollars per mile for the remainder of the original contract, fifty dollars for the work already done, money expended, etc.
    “ Given under their hands this sixth day of February, A.D 1851.
    “ R. K. Cox,
    “John Patton,
    “ Samuel Jennifer,
    . “ D. A. Black, '
    “Henry Darby,
    
      Commissioners.
    
    “ Attest: J. L. Hoshbrook,
    “ B. Jennifer.”
    They also offered to prove by John L. Hoshbrook, one of the subscribing witnesses thereto, that it was on the day of its date signed by R. K. Cox, John Patton, and D. A. Black, who at that time were acting county commissioners of said •county, and by Samuel Jennifer, and by Henry Darby, who was the ancestor of Elizabeth Anderson; that on the day of •said dates in the contract, all the parties thereto were on the land described in said petition; that at that time Henry Darby, the ancestor of the plaintiffs, had allowed the use of a portion of said premises in controversy to his neighbors to pass and repass, and that the said county commissioners •claimed and pretended that the same was a county road by virtue of the record above alluded to, and made part of this-bill of exceptions, which the said Henry Darby denied ; that the said Henry Darby then offered to give the strip of land for the road up the hill, to the Delhi turnpike, if the county commissioners would abandon their claim to the strip of land covered by the so-called record; that thereupon the commissioners considered the whole subject, and among other things, the fact that persons living on the hill could get to the city quicker, and by a shorter road, than if they went down to Rapid run before they turned up the river road; that another reason which influenced the commissioners was a consideration of the expense that would be necessary to procure dirt to widen the road along the canal; that it was plainly understood between Darby and the commissioners, that the road to-be made up the hill, was to be in place of the road claimed along the canal. Henry Darby expressly told them that he-would have one road over his farm, but not two; that thereupon the commissioners did agree to abandon the site of the-road claimed, and did accept from Henry Darby, for no other consideration, the site of the new road up the hill; that thereupon said county commissioners executed said contract, and constructed the road up the hill, and have ever since been in receipt of the tolls taken for travel thereon. But the-court refused to admit any of said evidence, and excluded the-same; to which the plaintiffs excepted.
    A judgment having been rendered against the plaintiffs, they filed a petition in error in this court.
    The alleged errors considered by the court, appear in the opinion.
    
      Mills § Goshorn, for plaintiffs in error.
    
      E. A. Ferguson Peter Zinn, for defendants in error.
   Gholson, J.

The controversy between the parties, as-shown by the pleadings, is, whether a piece of land shall be taken, and used as a public road. It is claimed on the one side, that there is a title to real estate, which it is sought to-disturb, by an illegal appropriation to a public use; and on-the other side, that there has been a legal appropriation. 'The remedy sought, is an injunction to restrain the occupation of the land, and its appropriation to the purpose intended.

When a party is in possession of real estate, which those professing to act under public authority are about to enter upon and appropriate, for the purpose of a public road, if the steps required by law to secure a proper compensation to the owner, or to protect him against an improper appropriation, have not been taken, he may properly ask the interference of a court by injunction. McArthur v. Kelly, 5 Ohio Rep. 140. No objection was made, in this case, to the remedy sought, but as shown by the bill of exceptions, the parties proceeded to try the question of title and right. The plaintiffs showed that they were seized of the land, and thereupon the defendants, to show the right to appropriate, offered in evidence the record set out in the bill of exceptions. The questions we have to decide, arise on the objections made to that record, and the objections made to the evidence offered to impeach its validity and effect.

The objections to the record, are based on the assumption, that to give such a record validity, it should show on its face, or be supported by proof, that there was a petition signed by at least twelve freeholders of the county, and notice, as prescribed by the statute. That there are cases in which the proceedings of tribunals or bodies of special and limited jurisdiction, 'should show on their face, or be sustained by proof, that the prescribed requisites to the exercise of the power conferred upon them have been complied with, is certainly very true. But, looking to the subject matter, and the provisions of the statute, we think that the record which the statute directs, must be regarded, in any collateral proceeding, as evidence of the establishment of the road. If the report, survey and plat be recorded, as directed by the statute, the presumption that it has been properly and regularly done will arise, and the record will, in the language of the statute, show that the road is to be considered a public highway.

If the road, thus shown to be established, be opened and •used, a further presumption may arise, as to those who are, or properly should be, cognizant of such use,-and may be regarded as acquiescing therein, which may estop them from disputing the legality of the proceedings. Such a presumption from the assent to and acquiescence in the dedication to public use, will" increase in strength, and become conclusive by the lapse of time. It was on this principle that the court acted, in the case of Arnold v. Flattery, 5 Ohio Rep. 271.

The operation of this principle will generally suffice to prevent the obstruction of the public highways of the state, which have been used for a length of time, on the ground of a want of compliance with the requisites prescribed by the statute, as essential to their original establishment. The principle does not apply when the record is offered, not in connection with, and to sustain the use of a highway, but as the authority to enter upon land and open and construct a highway for future public use. Nor does the admission of this principle as a ground of decision, show that the proceedings of the commissioners are to be regarded in the light of proceedings of courts of general jurisdiction. Indeed, the resort to such a principle would, iu itself, show the contrary. We think we go far enough, and give the provisions of the statute full effect, when we hold that the limited record they direct to be made, is to be considered evidence of the establishment of the road, although unaccompanied by proof of the essential requisites to the exercise of the jurisdiction conferred. There is nothing in those provisions which would authorize us to depart from the well-established rules of law, and regard such a body as the county commissioners, acting 'in a special matter, out of the course of the common law, as a court of general jurisdiction. The requirements of a statute authorizing the taking of private property for public use, ought to be strictly pursued. Authority for this purpose, although conferred upon a court of general jurisdiction, not belonging to it properly as such, has been held to give no greater effect to the proceedings than to those of a court of special and limited jurisdiction. The action of county commissioners, in establishing a road, and taking therefor private property, can not be placed on higher ground. Dyckman v. Mayor of New York, 1 Selden, 434, 439; Embury v. Conner, 3 Comst. 511, 523; Striker v. Kelly, 7 Hill, 9, 22; Harrington v. The People, 6 Barb. 607; Barrickman v. Commissioners of Harford Co., 11 Gill & J. 50; Lamar v. Commissioners of Marshall, 21 Ala. 772, 776; 1 Smith’s Lead. Cas. 833.

The decisions which have been cited by counsel for defendants in error, do not sustain their claim, that the courts of this state have applied a different rule in such cases as the present. The remark of the court in Harding v. Trustees of New Haven Tp. 3 Ohio Rep. 227, 232, is not fully stated by counsel, an exception being omitted, and this ease comes within the exception. It is there said, “ that this court has always taken great latitude of discretion, in deciding upon the proceedings of inferior tribunals of limited jurisdiction, except on questions involving their right of jurisdiction, and we have done so from a conviction that a different course would not only destroy their usefulness, but render them, in a great degree deceptive and mischeivous.” The principle on which the court proceeded in Arnold v. Flattery, 5 Ohio Rep. 271, has been already stated. Counsel have not pointed out, and.we have not been able to find anything in the case of Ferris v Bramble, 5 Ohio St. Rep. 112, or in the other road cases in Ohio, which shows, that as to such cases, the court has held that the rule that a statute authority to take private property for public use must be strictly pursued, is inapplicable, or that the distinction between courts of general and courts of limited and inferior jurisdiction does not apply.

Regarding the proceedings of the county commissioners as those of a court of special and limited jurisdiction, the question recurs, whether the requisites of the statute as to a petition by at least twelve freeholders, and notice, are jurisdictional facts, the compliance with which may be questioned in a collateral proceeding. There is some contradiction in the authorities as to what matters coming in question before courts of special and limited jurisdiction, shall be regarded preliminary and precedent to the exercise of the power con- _ ferred. But when they are collateral to the'merits of the subject matter upon which action is to be had, and are to be considered as conditions precedent to the exercise of the power, we think, the question, whether they in fact existed, must remain open to inquiry, and particularly in cases where private property is sought to be appropriated by statutory proceeding. Rex v. Croke, 1 Cowper, 30; Hills v. Mitson, 8 Exch. 751-763; Bunbury v. Fuller, 9 Exch. 111, 140; In re Baker, 2 H. & N. Exch. 219, 249; Birmingham v. Shaw, 10 Q. B. 868, 879; Suydam v. Keys, 13 Johns. 444; New Jersey R. Co. v. Suydam, 2 Harrison, 25; The People v. Koeber, 7 Hill, 39; City of Chicago v. Rock Island R. Co., 19 Ill. 286, 290.

To determine whether any particular matter falls within this rule, will require a construction of the statute under which power is exercised. The act of 14th March, 1831 (3 Chase, 1850), under which the proceedings now in question were had, clearly requires as necessary to invoke the action of the county commissioners, in the establishment of a county road, a petition signed by at least twelve freeholders of the county, and notice “ by advertisement set up at the auditor’s office, and in three public places in each township through which any part of such road is designed to be laid out or altered, at least thirty days previous to the meeting of the commissioners, at which the petition shall be presented.” The statute proceeds : u and on the petition being presented, and the commissioners satisfied that notice has been given as aforesaid, they shall appoint three disinterested freeholders of the county, as viewers of said road, and a skillful surveyor to survey the same,” etc. A plat and survey of the road is to be made and returned with a report of the viewers, and any person through whose land it may be laid out and who may feel injured thereby is required to make complaint to the commissioners, “ at any time between the session of the commissioners at which the report of said road is made, and the second day of their next stated session.” If such complaint be made, the damages are to be assessed by three freeholders appointed by the commissioners, who are to report to the commissioners. An appeal from the decision of the commissioners as to the road or the damages is allowed, but it must be taken “ during tlie same session of the commissioners at which said decision was made.”

As to the petition, which must be deemed essential to give the commissioners jurisdiction, there is nothing in these provisions to show, that its sufficiency is to be adjudicated by them so as to preclude inquiry. There is more doubt as to notice, for they are required by the statute to be satisfied that notice was given, in the manner prescribed. But they are not required to make any finding as to such satisfaction; and the great importance of notice in all proceedings affecting rights of property must not be overlooked. It will also be observed, that the provisions of the statute require that those who may be injured, shall assert their claim for compensation during the pendency of the proceedings, contemplating that they have had notice. The legislature must be supposed cognizant of the rule so long and so well established, that a summary proceeding under a statute to take private property must be strictly pursued, and that when notice to the party, before action taken upon his rights, is required, it is an essential condition to the exercise of jurisdiction; and had it been intended to make an exception to the rule, and allow the commissioners to conclude the party on a matter so important, we can not but think such intention would have been clearly ■expressed.

It is also claimed as error, that the court refused to receive evidence of what would seem to be a contract between the county commissioners and the ancestor of the plaintiffs, by •which the commissioners, in consideration of the right of way for another road, agreed to relinquish their alleged right ■to construct a road over the land in controversy under the authority of the proceedings shown by the record offered in evidence. If the record was valid and established the road, then it is quite clear that the commissioners could not, by a contract, alter or vacate it, but could only do so upon a petition and proceedings under the statute. This is shown by one of ■the authorities already cited. 11 Gill & J. 50, 56. For the purpose, therefore, of showing a contract binding on the com.missioners and invalidating the effect of the record as establisting the road, the evidence was incompetent, and being offered for that purpose only, was properly rejected.

For the error in rejecting the evidence offered to show that there was not a petition signed by at least twelve freeholders, and no notice as prescribed by the statute, the judgment of the district court will be reversed, and the case remanded to that court for another trial.

Judgment reversed.

Sutliee, C.J., and Peck, Brinkerhoee and Scott, J J., concurred.  