
    (Crawford County, O., Common Pleas.)
    JOHN VONDRON v. THE TRUSTEES OF CRAWFORD TOWNSHIP et al.
    (1). In proceedings to lay out a county road the commissioners under sec.4642 R. S. are authorized to appoint a surveyor to survey and locate the proposed road, and where they appoint the county surveyor for that purpose, he acts by virtue of such appointment, and not as county surveyor, and his deputy can not act for him.
    (2). In proceeding to locate a county road, property owners have 20 days after the commissioners have approved the report of plat locating and establishing the road to file remonstrances or to appeal to-the probate court. And where a land owner ascertains after the expiration of these 20 days that by a mistake of the surveyor in locating a section corner, a strip of his land is taken for the road, for which he should receive compensation, but he has failed to file his remonstrance or to appeal within the 20 days, his-remedy is gone.
   Tobias, J.

The facts are substantially as follows:

On June 12, 1897, Israel Stutzman and twenty other persons, including John Vcndrcn cf Cranberry township, petitioned the county commissioners to establish an east-and-west road on the section line between sections 22, 23 on the north,and sections 26, 27 on the south, Vondron’s traot being the south-east quarter of section 22, Tp. 18, R. 21 W., proposed road to commence at the south-west corner of section 22, the eastern terminus being a north-and-south road running through the center of the west half of section 24.

Bond was filed and public notice regularly given, as well as notice to the landowners. The commissioners appointed Herschel V. Flickinger, county surveyor, and three viewers who located the road and reported a plat of the same to the commissioners, who, having given notice to land owners to file their claims for compensation, established the road, and under the statute paid a portion of the compesaticn allowed to owners for land taken, and the petitioners paid the balanoe.

The road was established, and after waiting twenty days for remenstranoes, exceptions or appeal, as provided by section 4687, Revised Statutes, no objections were filed or appeal taken, and the road was finally established at the December session of the commissioners A. D. 1897; the same was recorded in the County Road Reoord,and an order was issued ■to the township trustees to open the •road.

On June 1, 1898, Vondron commenoed suit in the oourt of common pleas, alleging that the township -trustees and supervisors were threatening and about to proceed to open the road some twenty-eight feet north of the section line as petitioned for and located.

The defendants answered, denying that they so threatened or were about to open the road elsewhere than as located.

The controversy has its origin since the read was established, and grew out of the position of the seotion corner common to said four sections, which is the south east corner of Vondron’s quarter seotion.

When the surveyor and viewers met on the line of the road pursuant to notice previously given, many of the parties interested were present, but ■were unable to locate that seotion corner, and no monument thereof could be found. The surveyor there-, upon proceeded to locate the corner •under a rule prescribed in such cases. :He went to the nearest found original corners north, south, east and west of ■the last oorner. He apportioned the ■returned distances of the government survey so as to allow eaoh land owner his length of boundary line in proportion to the distances called for in the original survey, and at that point established the missing corner. From •thence he ran a straight line to' the found corners on the east and on the west for the oenter of the read.

After the road was established and work begun on it, to-wit: May 24, 1898, Vondron, believing the original oorner was farther south, procured! the deputy county surveyor to visit the premises, and he produced Adam Kline, an old man now living in the west, who formerly owned the Vondron tract, and whose father entered the land. Mr. Kline testified, in substanoe, that he had seen the original oorner and witness tree, and located the same some twenty-eight feet south of the oorner established Ly Surveyor Flijkinger when the road was established.

Plaintiff’s contention was that the defendants were opening the road twenty-eight feet too far north, thus taking a strip of that width off his land, which would not be were the Kline corner to govern.

The defendants’ contention was that plaintiff’s suit oame too late; that he could have obtained compensation by applying for it, or he had his remedy before the commissioners by remonstrance, exceptions, review; or by appeal to the probate court, and having failed to avail himself of those remedies, the oourt of common pleas has no jurisdiction to afford him relief now.

The court finds the proceedings of the commissioners, the surveyor and the viewers to be all regular in form, and that under the statute the viewers and surveyor could follow the seotion line described in the road petition cr survey, and lay out the road as near to the same as in their opinion a good road could be made at a reasonable expense.

All proceedings for locating and establishing a county road are purely statutory.

Seotion 4688 provides for making application to the county commissioners for laying out a oounty road.

Seotion 4640. What the petition to contain.

Sections 4641, 42, 45, 46, provide for notioe of application, appointment of viewers and surveyor.

Notice to land owners — duties]'of viewers — 4649. Duties of surveyor.

On May 24, 1898, the deputy county surveyor took the testimony of one Adam Kline as to the true corner of said section.

The oourt cannot consider the testimony of said Kline or the proceedings of the deputy surveyor had on . said date.

It is unfortunate that the testimony of Mr. Kline was not taken before Surveyor Fliokinger the day that the road was surveyed and located. If it had been, it might have saved this suit.'

Giauque on Law cf Roads lays down the rule: “Where the appointee is county surveyor, he acts by virtue of his appointment,and not of his offioe, and his deputy cannot act in his stead.”

L. C. Feighner and Geo. E. Hahn, for Plaintiff.

S. R. Harris and P. W. Poole, for Defendant.

The deputy oounty surveyor oan only perform such duties as Surveyor Flickinger could do as county survey- or, but when the commissioners appointed Flickinger surveyor to survey and locate the Vondron road, this act of the commissioners did not include his deputy. The commissioners under section 4642 had the authority to appoint a surveyor, and they only appointed one. I have cited sections 4638-51. These sections govern all the proceedings that have been taken in this case.

Counsel have filed with the court voluminous briefs. Law pertaining to the case has been cited, and numerous decisions have been oited that do not apply.

Vondron’s remedy, and only remedy, was by appeal under section 4687. If he had appealed under said seotion, the probate court would have ordered view under section 4692, whioh provides for the appointment of a survey- or, two ohainmen and a marker, and under this section the viewers and surveyor are clothed with the same authority as when appointed by the commissioners under section 4642.

At the expiration of the twentieth day after the board of commissioners approved of the report and plat locating and establishing said road, plaintiff’s remedy oeased.

If he has been wronged,it is too late for this court to grant relief. Every* man has his day in court. Vondron had twenty days, and could have any time within the twenty days perfected his appeal in the road case. Plaintiff may say that he has heen wronged and that he has no remedy.

There is no wrong without a remedy, and plaintiff’s remedy, and only remedy, was under section 4687.

Plaintiff’s counsel claim that the public cannot take his land without just compensation. This is true.

He not only had notice of the time within whioh tc file his claim for compensation, but on the thirteenth day of October, 1897, he personally served notices on all of the land owners of the time that claims for compensation must be filed with the viewers.

By his own act he waived his right to any compensation for land taken for said road.

Injunction dissolved and petition dismissed.  