
    Dodson v. The City of Cincinnati.
    1. In an action to recover compensation for land apppropriated by a mu.licipal corporation to public use, the same rule applies for assessing compensation as is applicable where the assessment is made by a jury in a special proceeding instituted, under the statute, for the purpose.
    2. A municipal corporation is authorized to appropriate an easement in land abutting on a street, for the purpose of making a sloping fill in order to afford lateral support to the street.
    3. Such appropriation does not divest the owner of his dominion over the property subject to the easement. He may still use it for all purposes not inconsistent with the special purpose of furnishing the neccessary support to the street.
    -4. Where suci an easement has been appropriated, the land-owner is entitled to be compensated for all the rights of which he has been deprived; hut where he still retains substantial rights in the property, he is not entitled to he allowed the value of the land in fee simple.
    Motion for leave to file a petition in error to reverse the judgment of the Superior Court of Cincinnati.
    The original action was brought by Edmond H. Dodson ■against the city of Cincinnati, to recover the valúe of a ;strip of ground twenty-five feet wide, taken off the front of his lot, and used by the city in the construction of State street. Ten feet in width of the strip were used in making the street, and the remaining fifteen feet were taken and used for the purpose of making a slope to support the -street.
    On the trial of the issues in the case, evidence was given by the plaintiff, tending to prove that the street was made in part upon his land ; and he also gave evidence as to the value of the land.
    On the part of the defendant it was admitted that the street had been improved by filling the same up in front of the plaintiff’s premises to a height of about t-welve feet, and that, in making such improvement, the agents of the defendant had so filled the street as to form a slope on the plaintiff’s lot, running from the line of the street as im-proved, to a point about fifteen feet in on plaintiff’s lot.
    The court instructed the jury, “ that if the defendant had ■constructed its street-in part on the plaintiff’s land, then, thaf the plaintiff was entitled to recover from the defendant the value of the fee of so much of his land as was •covered by and included in the street.”
    The court further charged the jury as follows: “If, in improving a street, the city makes a fill, it is bound to con-fine the earth within the street lines, and if it fails to do this, and allows the earth to run over onto abutting property, so as to make a slope for the support ■ of the street, this is a condemnation for street purposes of so much of the-land abutting on the street, as is covered by the slope, which is necessary for the support of the street, and the-property owner is entitled to recover from the city the value of the fee of his land occupied by so much of the slope as is necessary for the support of the street.”
    To the rule of compensation laid down in the charge, for the land occupied by the slope, the defendant excepted.
    The jury found for the defendant as to the land occupied by the street. As to the land occupied by the slope to support the street, they found for the plaintiff, and assessed his. damages.
    On petition in error, the court, at general term, reversed the judgment, for error in that part of the charge to which, exception had been taken.
    By the present proceeding, it is sought to reverse this judgment of reversal.
    
      Mallon § Coffey, for the motion.
    
      Bates, Perkins &¡ Goetz, contra.
   White, C. J.

The only question raised in this case is as to the rule by which the owner is to be compensated for ground taken and used by the city in making the slope to-support the street. ■

No question is made against the right of the city to the use of the ground for the purpose. The ground appears to have been regarded on the trial, as finally appropriated by the corporation for such purpose, subject to its liability to make due compensation therefor. The case is treated by the parties, and was so treated by the court below, as coming within the principle determined in Hatch v. The Cincinnati Railroad Company, 18 Ohio St. 93; and the only-question now in controversy is, whether the rule of compensation is the full value of the ground in fee-simple.

The rule ought to be the same as would be applied where the assessment is made by a j ury, in a special proceeding, instituted under the statute, for the purpose. Whether-the amount of the owner’s recovery should be the full value of the property, depends upon whether he has been deprived of the whole. It is the property of which he has been deprived by the public, for which he is entitled to be compensated; and his recovery should be neither more nor less-than a compensation for what has been taken.

Section 507 of the municipal code invests the city with power to appropriate, enter upon and hold real estate within its corporate limits for the purpose, among others, of opening, widening, straightening, and extending streets, alleys, and avenues; but provides that no more shall be taken or appropriated than is reasonably necessary for the purpose to which it is to be applied.

Section 509 declares that the terms “ land ” and “ real estate ” shall be regarded as including rights and easements of an incorporeal nature.

By section 512, it is provided that when it shall be deemed necessary to appropriate private property to public use, “ the council shall, by resolution, declare such intent, defining therein the purpose of the appropriation, and setting out a pertinent description of the property designed to be appropriated.”

The application made to the court or judge, for the assessment of compensation for the property appropriated, is required to be in writing, and to describe as correctly as may be the property to be taken, and the object for which it is taken.

Where a street is to be made at an elevation above the natural surface of the ground, it is clearly competent for the corporation, under these provisions, to appropriate the right to use so much of the abutting property as may be necessary to furnish the requisite lateral support to the street. Such use constitutes a mere easement in the abutting property, and does not divest the owner of his general dominion over it. He may still use it for all purposes not inconsistent with the special purpose of furnishing the necessary support to the street.

In' some instances, such use may, owing to the peculiar conformation of the land, be equivalent, substantially, to divesting tbe owner of the fee. But in others it may increase the facilities of the owner for using the land, and in fact enhance its value. True, the compensation must be assessed without deduction for benefits. But, as already remarked, the owner is entitled to be compensated only for such rights as have been taken from him by the public. And where he stills retains substantial rights in the property, he can not insist on their value being included in the measure of his compensation.

Leave refused.  