
    In the Matter of the Wells County Road.
    1. The establishment of a county road, by county commissioners, upon the report of two viewers, the third neither qualifying nor acting, is erroneous.
    2. If, on appeal, the court of common pleas establish such road, upon the report of the two viewers, without other proof of the public necessity to condemn the land for public use, their proceedings are also erroneous.
    *3. If the owner of land through which a road'is proposed to be established apply to the county commissioners for damages, and viewers are appointed, who report, and the owner appeals to the court of common pleas, and viewers are there appointed, and report, and the court affirm their report, and establish the road, it is then too late for the owner to object on certiorari in the district court, that the record does not affirmatively show that the freeholders who petitioned for the road were “ of the vicinity,” or that notice of the application for the road was not given. He should have made these objections before the county commissioners.
    4. The owner of lands is entitled to a jury to assess damages sustained by the establishment of a county road. As to whether the constitution operated upon cases pending before legislation — guare.
    This case comes to this court by petition in error to reverse the proceedings of the district court of Hamilton county.
    The original proceedings were upon a petition before the commissioners of Hamilton county to open and establish a county road. George Kluntz, the owner of lands through which the road was established, prosecutes the petition in error; his principal complaint being that he was entitled to damages.
    The record shows the following state of facts:
    March, a. D. 1850, petition for county road by twelve freeholders, presented to the county commissioners, who appointed R. Orr,. George Luckey, and-Bromwell, as viewers.
    March 5, 1850, order issued to the viewers.
    ■Orr and Luckey qualified. Bromwell was not qualified, and did not act.
    May 31, 1850, Orr and Luckey made a report as viewers, to the-county commissioners, that the road would be a public convenience, by facilitating neighborhood intercourse. A survey, etc., accompanied this report.
    June 3, 1850, the report of Orr and Luckey taken up and read-by the commissioners. Kluntz, under date of May 10, 1850, petitioned the commissioners that damages be assessed, in his behalf, on account of the establishing of the road through his land. The-commissioners appointed three freeholders to view and assess the damages, if any, that might accrue to Kluntz, in the opening of the proposed road.
    ^December 4, 1850, the viewer’s reported that, after taking: into consideration the advantages and disadvantages, they were of the opinion, “the advantages are equal to the disadvantages; and,, therefore, declined awarding any damages to Kluntz.”
    From-this award of the viewers, Kluntz appealed to the court of common pleas; and here the action of the commissioners ended.
    September 29, 1851, the court of common pleas, having heard testimony, ordered three freeholders to view and report how much less valuable, if any, the land of Kluntz would be rendered by the-opening of the road.
    October 15, 1851, the freeholders reported to the court that the lands of Kluntz would in nowise be rendered less valuable by the-opening of the road; and that they did not take into account certain buildings found on the line of the road.
    November term, 1851, the court of common pleas confirmed the report of the freeholders, and ordered the road to be opened; and that the plat and survey of the road be certified to the county auditor, to be by him recorded, etc.
    These proceedings were had under the act of March 14, 1831. Swan’s Stat. (old ed.) 796.
    It nowhere appears in the proceedings of the county commissioners that notice was given of the application to open the road, as provided by the third section of the above-mentioned act. The-petition of the twelve persons who asked for the opening of the road, name G-. Kline, instead of G-. Kluntz, as one of the owners of the land through which the proposed road would pass. The fact that the petitioners were freeholders of the vicinity, does not appear in the proceedings. The petitioners, however, describe-themselves in their petition as freeholders.
    Kluntz prosecuted a certiorari, issued by the district court, to the-court of common pleas of Hamilton county, to reverse the order of the court of common pleas.
    The district court affirmed the orders of the court of common* pleas; and a petition in error is now prosecuted in this court, to* reverse the .affirmation of the district court.
    The following objections, among others, are assigned for error:
    *1. In the proceedings before the commissioners, it does not apjiear that notice was given of the application to open the road. This was necessary to give the commissioners jurisdiction.
    2. It does not appear that the twelve persons, by whom the original petition was signed, were “ freeholders of the county,” and residents in “ the vicinity ” of the proposed road.
    3. The route of the road was not truly described. The road was laid out over the land of Kluntz; it was described as running over the land of “ G-. Kline.” This is not in accordance with the statute.
    4. Only two viewers were ever sworn, or ever acted; the statute-requires three.
    
    5. The appellant was entitled to have his damages assessed by a jury of six citizens.
    
      George F. Pugh, F. A. Ferguson, and Alexander Fong, for G-eorge-Kluntz, plaintiff in error.
    
      Isaac C. Collins and John W. Serrón, for defendant in error.
   J. R. Swan, J.

Had the county commissioners any authority to establish a road upon the report of two viewers, when the third viewer did not qualify or act ?

The county commissioners are required to appoint three viewers, and can not establish a road unless the report of the viewers be in favor of establishing it. Swan’s Stat. (old ed.) 797, sec. 4.

But two, in this case, qualified and acted. This was not a compliance with the statute, for the duty required the exercise of discretion and judgment; Young v. Buckingham, 5 Ohio, 485; and if the county commissioners had proceeded to establish the road on «uch report, their proceedings would have been erroneous.

Could the court of common pleas establish the road upon the report of the two viewers, made to the county commissioners?

It will be observed that the county commissioners did not ^establish the road, but simply received the report of the two viewers, entertained the application of Kluntz for damages, and appointed and received the report of the freeholders as to damages. Kluntz then appealed from the. last-mentioned report; and the case went to the court of common pleas, without any action whatever upon the question whether the road should be established. The commissioners were acting in accordance with the statute (Id. sec. 6), in not determining whether the land should be appropriated and the road established, until the question as to the damages of Kluntz should be finally determined. Upon the appeal, the damages of Kluntz might have been determined, under the statute referred to, and the court could have then remanded the whole subject, as to the establishment of the road, to the county commissioners ; or the court could have proceeded, in the place of the commissionex-s, to determine whether the road was of public utility, and ordered the report of the viewers, and the plat and survey, to be recorded by the auditor of the county, and thus establish the road. In the present case, the court appointed viewers to determine the damages of Kluntz, affirmed their report, and then, under the report of the two viewers, who had reported to the county commissioners, ordered the plat and survey to be recorded by the county auditor, and thereby established the road. The power of the court over road appeals is very general. The seventeenth section of the act above mentioned allows appeals, as well from the final decision of the county commissioners upon a petition for a new road, as for damages sustained by the same; and the ■court “ may order another view or review, if justice and the interest of the public require it, or make any other order they may deem just and x’easonable.” Unlimited as this language is, there is a legal discretion beyond which the court can not go. They may direct another view; but if no legal view has in fact beer made, and they direct no view, and establish a road without any legal evidence that the road is of public utility, it is certainly an abuse of legal discretion. The court, in this case had before them the opinion of two viewers. Instead of setting aside this view, they acted upon it. The statute never contemplated the establishment of a road by the ^report of two viewers, the third never qualifying, meeting, or acting with the other viewers. "When the question, whether private property shall be condemned to the public use, is transferred by the state to and vested in a court, the power, so dangerous and easy of abuse, can not be exercised without such proofs of public necessity or public utility as have been prescribed by the state. The .law never intended that the county commissioners, or the court, should condemn lands for a county road on the mere opinion of either tribunal. Yiewers, who are freeholders of the vicinity, must first report, under oath, that the public require the assumption of the property for a road, before the county commissioners or the court can condemn it. We think the court, in the case before us, had not sufficient proof before them to exercise the power of eminent domain.

The objection to the qualifications of the persons who petitioned for the road, as freeholders of the vicinity, and that notice of the application for the road does not affirmatively appear to have been given, comes too late after the appearance of Kduntz before the commissioners, and his omission to make any objections of this kind until the matters were before the district court on certiorari.

Unless it be held that the constitution, relating to the assessment by a jury of the value, etc., of property taken for public use, is not applicable to proceedings pending when the constitution took effect, until the general assembly have had an opportunity to make provision for a jury (see People v. Board of Supervisors, etc., 3 Barb. (S. C.) 332; Graves et al. v. Slaughter, 15 Pet. 449; Rowan et al. v. Runnels, 5 How. 134, 138-139), it is clear that Kluntz, on his appeal from the award of damages, was entitled to a jury. Lamb et al. v. Lane, 4 Ohio St. 167.

The order of affirmation of the district court will be reversed. The order which the district court should have entered, under the law as it now exists relating to the assessment of damages, should have been to set aside all the orders made after the petition was filed before the commissioners, and remanding the whole matter *to the county commissioners for proceedings de novo on the petition.

This court will, therefore, reverse the orders of the district court and the court of common pleas, and the orders of the commissioners made ^fter the petition was filed before them, and remand the matter for further proceedings before the county commissioners.

Bartley, C. J., and Brinkerhoee, Bowen, and Scott, JJ., concurred.  