
    Tussing et al., Commissioners, et al. v. King.
    
      County ditches — Power of county commissioners to vacate — Proceedings necessary before order to vacate — Cannot impair acquired private rights of persons — Section 4499, Rev. Stat.
    
    In a proceeding before the county commissioners, under Revised Statutes, section 4499, before an order can be made, declaring a ditch to be vacated and abandoned and its location and establishment to be held for naught, the commissioners must first find and determine whether any persons have acquired any private rights by reason of the location and establishment of such ditch, and, if any such exist, whether such vacation would interfere with or impair such rights; -and such order cannot be made if it would interfere with or impair such private rights.
    (Decided June 4, 1901.)
    Error to the Circuit Court of Hancock county.
    Under favor of Revised Statutes, section 4499, the commissioners of Hancock county made an order vacating’ a ditch known as the Old Open Nimrod Bright ditch, No. 38. The commissioners refused to receive notice of appeal, and refused to receive and file a bond for appeal, and overruled a motion to vacate their said order and proceedings. The defendant in error in this case thereupon filed a petition in the court of common pleas praying for an injunction against the commissioners and others who were interested in the order vacating the ditch. The issues were made up upon this petition, and upon hearing in the common pleas court a perpetual injunction was granted as prayed for by the plaintiff below. Upon appeal to the circuit court the same order and judgment were made in that court,and thereupon at the request and on the motion of the defendants that the court state its findings of fact and conclusions of law separately, the court found as follows:
    First — That said plaintiff, Robert Q. King, at the commencement of the action, .was and still is, aqd for thirty years prior thereto had been the owner and seized in fee of the 320 acres of land described in his said petition, situated in Biglick township, Hancock county, Ohio. That about twenty-eight years before the commencement of the suit, the ditch described in said petition, known as the Old Open Nimrod Bright ditch, No. 38, was located and constructed by the county commissioners and has ever since been maintained through plaintiff’s land; that during said time plaintiff has been assessed and paid for the location and maintenance of said ditch about $2,500.00; that during all said time plaintiff’s said lands and other lands in the vicinity have been and are wholly dependent upon said ditch for drainage and that private rights said plaintiff has acquired by reason of the location and establishment of said ditch which will be interfered with and impaired by the vacation of said ditch.
    Second — That in the year 1895 and 1896, certain parties owning lands along said ditch filed their petition with the county commissioners for the deepening and widening of said ditch, and such proceedings were had, and by a vote of the majority of said land owners the said ditch was deepened and the tile laid in the bottom thereof through a large portion of the distance, and for a part of the way through plaintiff’s land outside of the line of the ditch, but the ditch was not vacated or ordered filled up, but was left open through which and into which the water was drained.
    Third — That said plaintiff consented that the ditch should be deepened and a tile laid in the bottom of fche ditch upon the condition only that the ditch should remain open for the drainage of his lands.
    Fourth — That afterwards, and on the seventh day of August, 1897, under the provisions of section 4499 of the Revised Statutes of Ohio, said defendants filed their petition with said county commissioners praying for the vacation of said Nimrod Bright ditch, No. 38, throughout its entire length, and such proceedings were had by and before said commissioners. That on the thirty-first day of August, 1897, they made the following findings: And having duly considered the matter we do find and determine that said ditch is no longer of use as an open ditch to the persons interested and will not be conducive to public health, convenience, and welfare, as an open ditch, and made their order vacating said ditch and ordered the same to be vacated and abandoned without first finding that such vacation would not interfere with or impair the private rights of plaintiff therein, and without regard to, or taking into consideration plaintiff’s vested rights or interest or the effect upon his land. That said plaintiff then was a resident of the city of Springfield in Clark county, Ohio, but his son acting as his agent and representative resided upon and cultivated said land; that neither plaintiff nor .his said agent had any knowledge whatever of the filing of said petition or of the proceedings and no notice thereof other than by publication in a newspaper published and of general circulation in said Hancock county, Ohio, until after the order of vacation was made and entered on the journal; that on the sixth day of September, 1897, and as soon as he obtained information of said proceedings, plaintiff appeared before said county commissioners with his attorney and filed notice in writing of his intention to appeal said cause to the probate court of said county, and tendered a bond iri the sum of $500.00, conditioned according to law, and with good and sufficient surety for such appeal, bút the commissioners refused to receive, entertain or consider said motion or application, or to receive said bond, -stating to plaintiff and his counsel that he had no right of appeal from their said order under the statute; that thereupon plaintiff offered to file and tendered to said commissioners his motion in due form of law to vacate their said order and proceedings for the reason and upon the grounds that said commissioners had no jurisdiction or right to make said order or vacate said ditch, or deprive plaintiff of his said vested right and interest therein and to its maintenance, but the said commissioners refused to receive or entertain or consider said motion and refused to vacate or modify their said order.
    Fifth — That about the year 1897 defendant, M. E. Ewing, and others owning lands next west of and below the lands of plaintiff, placed a dam in said open Nimrod Bright ditch, No. 38, and 'entirely filled the channel thereof for a distance of over sixty feet, so as to prevent the flow of water in said ditch and flooded the same back upon the lands of plaintiff. The said fill oi- dam has been entirely removed by order of this court in a former case and said defendants are not obstructing or threatening to- fill or obstruct said open ditch.
    Sixth — That no adequate provision has been made for the drainage of plaintiff’s land or to take the place or answer the purpose of said open ditch No. 38, or to carry off the water from his said lands, in times of heavy rains and high waters. Upon said findings of fact the court find as its conclusions of law that the. said, county commissioners have no right, power or jurisdiction to make said order of vacation or to vacate said ditch, and that their said proceedings and order were wholly without authority of law and void, that said plaintiff has no remedy at law for the protection of his said rights in and to the maintenance of said ditch.
    ■ It is therefore considered, ordered and adjudged that the proceedings and order of said county commissioners vacating said Old Open Nimrod Bright, No.38, be and the same hereby are declared illegal and void and the said order is hereby set aside, vacated and held for naught, and the said county commissioners and other defendants are hereby perpetually enjoined from in any wise interfering under said order with the vested rights of the said plaintiff in said ditch, etc.
    Error is prosecuted here to reverse the judgments of the courts below.
    
      Nickerson & Bright; Charles E. Jordan and Boss & Kinder, for plaintiffs in error.
    
      J. A. & E. V. Bope, for defendant in error.
   Davis, J.

It is the contention of the plaintiffs in error that the order made by the county commissioners did not affect any private rights of the defendant in error; and that it went no farther than to release or destroy the public interest in the ditch, and thereby to cancel the obligation to maintain it. The claim of the defendant in error, plaintiff below, is that by reason of the facts which are disclosed in the findings of the circuit court, he has acquired certain vested rights in the ditch, which are distinct from the public interest therein; and that the finding by the commissioners that the ditch “is no longer of use to the persons interested and will not he conducive to the public health and welfare as an open ditch,” and the order that the same shall be vacated and abandoned, constitute an unlawful interference with, and impairment of, the private rights which the defendant in error had acquired by reason of the location and establishment of such ditch. Two reasons are assigned in support of this claim by the defendant in error; but it is necessary to consider only one of them.

Assuming the validity of section 4499 of the Revised Statutes, and passing by questions as to the sufficiency of the notice given and the refusal by the commissioners to receive notice and bond for appeal, we come to the pivotal question in the case, that is, whether the commissioners are. required, by the provisions of section 4499, to inquire and find whether the vacation and abandonment of the ditch would interfere with private rights acquired by the location and establishment of the ditch, before proceeding to grant the prayer of the petition. It is urged in behalf of the plaintiffs in error that when the commissioners are satisfied that the ditch has ceased to be of public utility, and the public health, convenience or welfare no longer demand the maintenance thereof, the inquiry should stop there; and that the last clause of the section is merely a saving clause, preserving to the individual his private rights, notwithstanding the discontinuance of the public interest in the ditch. It is obvious, however, that if that part of the section preceding the clause relating to private rights, authorizes the abandonment of the public interest only, a clause saving private rights is unnecessary; because such private rights would remain intact without • such, legislation. McQuigg et al. v. Cullins, 56 Ohio St., 649, 654. When we look closely to the language of this clause, with the purpose of ascertaining, if possible, the object of the legislature in inserting it, it is first of all apparent that it is absolutely prohibitive of any interference with, or impairment of, private rights acquired by reason of the location and establishment of the ditch. If the language does not mean this, it means nothing. An order by the commissioners vacating and abandoning the ditch and declaring “its location and establishment to be held for naught,” is necessarily, in some degree, an interference with, and impairment of, rights “acquired by reason of the location and establishment of such ditch.” It follows, therefore, that although the commissioners may be of the opinion that the ditch has ceased to be of public utility, and that the public health, convenience or welfare no longer demands the maintenance thereof; yet if persons have acquired private rights by reason of the location and establishment of such ditch, they are prohibited from making an order declaring that the ditch shall be vacated and abandoned,' and that its location and establishment shall be held for naught. This implies an inquiry as to the existence of such private rights, before the making of such an order, and such inquiry is necessary to the exercise of the jurisdiction to make an order upon the petition. Such an inquiry, if made in this case, is not disclosed in the record. The circuit court has found that the defendant in error has private rights which he acquired by reason of the location and establishment of this ditch, that the ditch has.existed long enough to be “in all respects considered and treated as a natural water course,” as provided by section 4500 of the Revised Statutes, that the ditch was necessary to the drainage of the lands of the defendant in error, and that said lands were wholly dependent thereon for drainaga He was, therefore, entitled to have an injunction as prayed. The judgment of the circuit court and that of the common pleas, are

Affirmed.

'Minshall, O. J., Burket, Spear and Shauck, JJ., concur.  