
    Hans H. Frevert et al. v. Samuel Finfrock.
    A land-owner whose claim for dami>ges in the location of a township road was disallowed by the viewers, is not entitled to an injunction, against the petitioner who is proceeding with an order to open the road, on the ground that the proceedings are erroneous; hut ordinarily, the claimant has no other remedy than error or appeal, even if the rejection of the claim was for a cause wholly insufficient.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Shelby county.
    On April 26, 1877, a petition signed by Samuel Einfrock and others was presented to the trustees of Cynthian township, Shelby county, for the location of a township road along the line dividing sections twenty-two and twenty-seven in that township, commencing at the Farmer’s turnpike at the west side of those sections, and terminating at the Angel street road, which is a county road, at the east side of the sections. The trustees, finding that notices had been posted in three public places in the township, for thirty days, granted the prayer of the petitioners and appointed a surveyor and three viewers, who were freeholders and residents of the county. They also issued an order showing such appointment and the time and place of meeting for the purpose of viewing the road; and notice in writing wTas given to the owners of the land through which the road would pass, that the viewers would meet on May 5, 1877, for the purpose of viewing and establishing the road, and that all damages must be presented to the viewers at the commencement of the view.
    The report of the viewers shows that they and the surveyor met at the time designated in the order, and were sworn to discharge their duties faithfully and impartially. James Gaily and Nathan "W. Penrod, two of the plaintiffs, were selected and sworn as chain-carriers, and a marker was selected and sworn. The route proposed was viewed and surveyed, and the viewers found that the road ought to be established, and that the public convenience required it to be thii’ty-three feet in width. The viewers fux’ther stated in their repoi’t, that they had assessed no damages for the reason that there was no descxñption of property in any of the claims presented.
    At their session, May 18,1877, the trustees, on considertion of the report, gi’anted an order establishing the road; and an order to open the road was issued and delivex’ed to Samuel Finfrock, June 4, 1877, which order required liixn and the other petitioners to keep the x’oad open and in i’epaii\ . ■ '
    All the foregoing appeal’s by the recox’d of the trustees. No appeal was taken from the order establishing the road or the refusal to assess damages.
    On June 8,1878, Hans H. Frevert, James Gaily, and Nathan W. Penrod, owners of lands through which the road was located, tiled a petition in the Court of Common Pleas of Shelby county, against Samuel Finfrock, in which it is aven’ed that Finfrock is about to cause the road to be opened ; that in so doing he will remove the fences of the plaintiffs, the necessary protection of their crops, which are valuable; that Finfrock has not paid or tendered to them any compensation for the land taken or for the damages occasioned to them by the location of the road; that the plaintiffs have .not waived such compensation in any way, and that the acts of Finfrock will occasion to the plaintiffs irreparable injury. .A copy of the record of the proceedings before the trustees was made pai’t of the petition. The plaintiff pi’ayed for an injunction, which was gi’anted.
    In the court of common pleas a demurrer to the petition was interposed by the .defendant, and the court sustained the demurrer, dissolved the injunction, and dismissed the petition. Tlie plaintiffs having • appealed to the district court, the same disposition was made of the case there. They now ask leave to file in this court a petition in error to reverse the judgment of the latter court.
    
      J. S. Conklin, for plaintiffs in error:
    1. The record does not show the notice required by the statute was given. 2 S. & C. 1296, sec. 31; 2 Ohio, 251; 3 Ohio, 227; 11 Ohio St. 497; 12 Ohio St. 636; 13 Ohio St. 406; 27 Ohio St. 230.
    2. To refuse compensation because the property was not described in the- application for damages, was unlawful. Const., art. 1, sec. 19; 2 S. & C. 1261, sec. 6; lb. 1296, sec. 31; Raff’s Road Law, 61; 71 Ohio L. 186; High on Injunctions, secs. 387, 391; 27 Ohio St. 218.
    3. The remedy by appeal is inadequate. 2 S. & C. 1297, sec. 33.
    
      N. B. Burress, for defendant in error:
    The damages were properly refused because the property was not properly described in the claim therefor; and, beside, there was an adequate remedy by appeal. 2 S. & C. 1291, 1292, 1296, 1297; 4 Ohio St. 685; 8 Ohio. St. 590; High on Injunctions, secs. 30, 31, 249, 273; Const, art. 1, sec. 19; 12 Ohio St. 636.
   Okey, J.

Road cases, as a class, are attended with difficulty. The statutes relating to roads are and have been for years in much confusion, and the records in road eases are nearly always informal. Courts, in general, have with propriety confined themselves strictly to the decision of the particular questions involved. Nevertheless, certain principles have been recognized in the cases, by the application of which, when the facts and statutory provisions applicable thereto have been clearly ascertained, controversies of this sort may be determined as readily as others.

Brought together from the various places in v7hich they are found, the statutory provisions applicable to this case, so far as it is now necessary to state them, are, iu substance, as follows:

If a person, for the convenience of himself and his neighbors, wishes to have a township road laid out from one public road to intersect another, he may petition the trustees of the township therefor, after giving thirty days’ previous notice, by advertisements posted up at three jDublic places witbin the townshij), setting forth the time when the petition will be presented, and the place of beginning, intermediate points, if any, and the place of termination of the road. (74 Ohio L. 84; S. & S. 692.)

The petition must be read in open meeting of the trustees, and if they are satisfied that the notice has been given, they will cause the petitioner to give bond for the payment of the costs and expenses of the view and survey; and, if satisfied that the proposed road is necessary, they shall'appoint, besides a surveyor, three judicious, disinterested landholders of the township, who shall constitute a jury. The persons so appointed shall be sworn to faithfully and impartially discharge the duties of their appointments, and shall take to their assistance two chain-carriers and a marker, view the ground, and locate the road as near the line proposed as a good road can be -had at reasonable expense. They are required, furthermore, to determine the compensation to be paid in money for the property sought to be appropriated, without deduction for benefit to any property of the owner; and they are also required to assess and determine how much less valuable, if any, the land or premises from which such appropriation may be taken, will be rendered by the opening and construction of the road. (2 S. & C. 1296; 69 Ohio L. 187; 66 Ohio L. 68.)

The viewers are required to report in writing. If they report in favor of the establishment of the road, they must state its width, which must be not less than sixteen nor more than sixty feet. They must also report the damages, if any, assessed to each person through whose land the road is proposed to be established. The report, with a plat of the road, must be deposited with the township clerk, and the trustees, at their next meeting, must cause the report to be read. If it appear that the report is favorable to the establishment of the road; that to establish it is reasonable and just; and that the damages, if any have been claimed and assessed, have been paid by the petitioner or petitioners, the clerk of the township, by direction of the trustees, must enter the report on record, and the trustees shall issue their order to the petitioner or petitioners to open the road, and it shall then be considered a private or township road.' Where the road is not less than thirty feet in width, commences in a state, turnpike, township, or county road, and intersects another state, turnpike, county, or' township road, it must be kept open and in repair by the' supervisor in whose district it is situated, and the cost of the view and survey must be paid out of the township treasury. (73 Ohio L. 21.)

.Each claimant of damages, on account of the establishment of such road, may appeal to the probate court from; the refusal of the viewers to award him damages. Upo» such appeal, the probate court is confined to the question; of damages, and, for its determination, causes a jury of twelve men to be selected, and a trial to be had. (68 Ohio L. 111, 112; 2 S. & C. 1301, 1302, secs. 59, 60.)

Other provisions, by a fair construction of the act of 1853; (2 S. & C. 1289; S. & S. 690), apply to township roads.. The-first section provides that “ all county and township roads-shall hereafter be laid out and established agreeably- tO'the provisions of this act.” Then the provisions of the first' twenty-nine sections apply mainly to the state and county roads, and the remaining sections apply chiefly to-township roads. But several provisions in the part applicableto>state- and county roads,'are made applicable, by special:reference, to township roads, and the same thing is effected as to some other provisions by general reference. Thus,.in the second1 section, relating to township roads (2 S. & C. 1296, sec. 31),. it is provided that the trustees must be “ 'satisfied that proper notice has been given as aforesaid” This might be thought to refer to the notice which in the preceding section (now amended) is required to be posted in three public places in the township ; but notice to the property-owners, which is more important, is required in that part of the act relating to state and county roads (2 S. & C. 1291, sec. 5; 69 Ohio L. 186), and it seems that provision is, by the clause quoted from sec. 31, in connection with other provisions, made applicable to township roads. So, that portion of the act which relates to township roads, contains no provision that an application for damages, containing a description of the premises, shall be filed with the viewers. Section 6, which requires such written application, is in that part of the act relating to state and county roads. (2 S. & C. 1291; 69 Ohio L. 187.) But section 32 (2 S. & C. 1297), which has been amended (69 Ohio L. 187), provides that the trustees can not establish the road until they are “ satisfied that the damages, if any have been claimed and assessed, have been paid or secured to be paid.” How claimed ? The answer seems to be found in section 6, for it is not elsewhere provided in the act how the claim must be made. Nor is there any reason why the mode of asserting such claim should not be uniform.

The objection is urged that the general language in the record, with respect to the notices, is insufficient. It is said that the record should show that the notices were such as the law requires. But the statement in the record, which is substantially set forth in the statement of the case, seems to be entirely sufficient. .The objection, moreover, could not be made in this collateral way. McClelland v. Miller, 28 Ohio St. 288.

The plaintiffs insist that it was a violation of the constitution, art. 1, sec. 19, to deny them compensation, for the reason that they had failed to describe their lands in the applications for compensation. If I have correctly construed the statutory provisions, and on this subject I speak for myself alone, there was no error in the proceedings of' the viewers in that respect. Reckner v. Warner, 22 Ohio St. 275. But we all agree that if section 6 of the road law, already referred to, has no application to township ro'ads, the same result will follow. The plaintiffs did make application to the viewers for damages, and the viewers denied their application. If the reason for- denying the application was bad, it was nevertheless a denial; and, as we have seen, the plaintiffs had the right of appeal. The language is explicit: A “ claimant of damages on account of the establishment . . . of a . . . township road, . . . may appeal to the probate court from the . . . refusal of the viewers to award damages to him.” 68 Ohio L. 111. And this right exists, it seems,for twenty days after the refusal. 2 S. & C. 1301, secs. (59) and (60).

In Reckner v. Warner, supra, it -was held that if the claimant of damages in such a case can, by appealing, obtain the assessment of such damages by a jury of twelve men, the assessment or denial of damages in the first instance by viewers is not in violation of the above mentioned-provision of the constitution, and the proceedings will not be restrained. For a stronger reason, where the regularity of the proceedings' is the ground of objection, the claimants will not be permitted to resort to the remedy of injunction, but will be confined to his appeal, or, if the proceedings are so erroneous as to be reversible, to his petition in error’. Ib.; McClelland v. Miller, supra; High on Injunctions, secs. 30, 129, 131; unless, indeed, special circumstances of fraud, accident, mistake, or the like, are shown ; and nothing of the sort appears or is averred.

Other objections to the record are, that it does not show, as the statute requires, that the petitioners gave bond ; and that, while it is stated the viewers were residents of the county, it does not show, what the statute also requires, that they were residents of the township. But these matters are not required to be stated in the record. Consistently with the record and averments, the statute in both particulars was 'complied with ; and admitting that here was ground of error (though I believe there is no substantial defect in the proceedings), the objections, as will appear by the above cases, are of no avail when presented iu this form.

Upon the whole, it seems to us- perfectly clear that the judgment of the district court was right.

Motion overruled.  