
    Joseph Reckner, Supervisor, etc. v. Warren Warner.
    1. The act of January 27, 1853 (S. & C. 1289), entitled “an act for opening and regulating roads and highways,” as amended April 8, 1858 (S. & O. 1301), is not repugnant to the provisions of the constitution relating to trial by jury as contained in sections 5 and 19 of the first article. The right of appeal, therein provided for, to the Probate Court, where a constitutional jury may be had, validates the statute; and the provision therein for an appeal bond, with sureties, conditioned for the payment of costs adjudged against the appellant, does not contravene the right of trial by jury, as guarantied by the constitution.
    2. "Sha proviso in section 6 of the act of January 27, 1853 (S. & C. 1291), declares a rule of evidence whereby a waiver, on the part of the landowner, of his right to compensation, may be established, and does not conflict with the constitution (sec. 19, art. 1), relating to the inviolability of private property. The rule contained in this proviso can not be regarded either as a statute of limitation, whereby a right secured by the constitution is barred immediately upon the accruing thereof, or as a statute declaring the forfeiture of private property.
    3. Relief in equity, by restraining the appropriation of private property for a public road under said statutes, will not be granted on the ground that compensation therefor has not been paid to the owner in money, in a case where the owner, having actual notice of the proceedings in which the property is sought to be taken, and of the time and place of the view, neglected or failed to present his application for compensation, in writing, to the viewers, and where it is not shown that the default was occasioned by inevitable casualty, or by other circumstances against which reasonable precaution could not have provided.
    Error to the District Court of Hamiltou county.
    The original action was brought in the Court of Common Pleas of Hamilton county, by the defendant in error, against the plaintiff' in error, to restrain him from opening a new county road through the premises of the plaintiff below.
    The petition alleges the ownership of the locus in quo to be in the plaintiff; that the order of the county commissioners locating and establishing the road, and the order to the supervisor to open the same, had been made without the consent of the plaintiff', and without compensation for the right of way over his lands having been made or secured to be paid, and that the threatened acts of the defendant, in and about the opening of the road, would produce irreparable injury to the plaintiff
    The defendant, in his answer, justified under an order to open the road issued to him as supervisor of the road district, and alleged that the plaintiff had waived his right to compensation for the land appropriated, by failing to present his claim for damages in writing to the viewers as required by the statute, in such cases made and provided.
    The plaintiff, by reply, denied that he had directly or indirectly waived his right to compensation and damages.
    On the trial in the Court of Common Pleas, the issues thus joined were found for the plaintiff, and the defendant was perpetually enjoined from opening the road through the lands of the plaintiff'.
    The cause was thereupon appealed, by the defendant, to the District Court, and, upon trial therein, the like decree was rendered; whereupon the defendant moved for a new trial upon the grounds that the findings and judgment of the court was contrary to the law and the evidence; which motion was overruled, and defendant excepted, and, by bill of exceptions, placed on the record all the e vidence offered on the trial.
    
      Harmon ft Durrell, for plaintiff in error :
    The only question is, does the act in question violate section 19, article 1, of the constitution?
    Counsel for defendant in error claim that it does.
    1. Because it bars all claims for compensation unless presented in writing to the viewers.
    
      2. Because, though au appeal to the Probate Court for assessment by a jury is provided by the act, it can not be had by those who fail to file their claims with the viewers; so that for such there is no provision for compensation to be assessed by a j ury.
    3. Because such appeal can be had by those who do file their claims, only by giving an appeal bond within twenty days, as a condition precedent — a hardship with which the right to a jury can not be burdened.
    I. As to the first objection :
    The constitution, section 19, article 1, excepts from the rule that “ compensation shall be first made ” the case of “ roads (such as the one in question), open to the public without charge,” thus making its provision in such case the same as section 4, article 8, of the old constitution, under which it was held, Bates v. Cooper, 5 Ohio, 115, that it was sufficient if provision be made, “so that the person injured might get compensation if he should desire it. But we are not advised that the courts have ever held that compensation must be actually assessed and paid over to the owner whether he desire it or not.” The act in question in that case contained the same provision, as to waiver, as the act in question here.
    It is sufficient if the act provide a certain and adequate remedy. 2 Kent, 339 ; Sedgwick Stat. & Const. Law, 526, 537, 533.
    But Cupp v. Commissioners, etc., 19 Ohio St. 173, is conclusive upon this point, the provision in the law under consideration in that case being the same, as to waiver, as in the law now in question.
    Warner was personally notified that unless he filed his claim by a certain time he would be conclusively presumed to have waived it. He was even present and asked to present it. His waiting until the last moment was at his own risk. Shall all the trouble and expense of the petitioners in surveying and establishing the road be for naught, because of his negligence? They and the public have rights ag well as he.
    
      II. It is a sufficient answer to the second objection, that it would be folly to provide an appeal to a jury for the assessment of compensation which has been waived. The constitution does not secure the right to have a jury to pass upon the right to compensation, but only to assess it. When Warner waived his right to compensation, he also waived all secondary rights appurtenant thereto. There was nothing left to assess even by the viewers.
    III. The reply to the second objection applies also to the third. If Warner waived his claim, by what right does he complain of the mode of assessment provided for others? To make this objection pertinent, he should have claimed compensation, and demanded a jury in the first instance and without condition.
    But even if he could make the objection and had made it, it is unfounded.
    The constitutionality of law's subjecting unwilling parties to atrial before magistrates, without the right to a jury, has been questioned in many states, but it has been held in every instance, that the right of appeal to a court where trial by a constitutional jury may be had, validates the laws referred to; that the legislature may, in its discretion, impose conditions upon such right of appeal, which, although troub'csome, inconvenient, and often to be regretted., will be sustained unless they are so onerous and unreasonable as manifestly to impair the right; that the requirement of a bond lor costs, and the prosecution of the appeal, does not so impair the right, and is valid. Emerick v. Harris, 1 Binney, 416; McDonald v. Schell, 6 S. & R. 240; Biddle v. Commonwealth, 13 S. & R. 405; Beers v. Beers, 4 Conn. 535; State v. Brennan’s Liquors, 25 Conn. 278; Curtis v. Gill, 84 Conn. 54; Jones v. Robbins, 8 Gray, 329; Hapgood v. Doherty, 8 Gray, 374; Keddie v. Moore, 2 Murphy (N. C.), 41; Wilson v. Simonton, Hawkes (N. C.), 482; Flint River Steamship Co. v. Foster, 5 Ga., 208; Murford v. Barnes, 8 Ga; 444; State v. Beneke, 9 Iowa, 203; Deaton v. Polk Co., 9 Iowa, 594; Norton v. McLeary, 8 Ohio St. 205.
    In Howell v. Fry, 19 Ohio St. 559, a law relating to the Probate Court was held unconstitutional because it provides neither for a jury nor an appeal — a strong “ negative pregnant.”
    But Lamb v. Lane, 4 Ohio St. 167, decides the exact point. In that case this very road law was in question. It was held unconstitutional, because after the appeal a jury of only six men was provided. The law then required assessment by viewers, and the same conditions for appeal (Swan’s R. S. 808, sec. 22), yet the court held that “ an assessment of damages may be made by viewers in the first instance, provided a right o'f appeal is given to a court where it may be made by a constitutional jury.”
    The legislature at once acted upon that decision, by amending the law so as to provide a jury of twelve on the appeal, and the law has stood unquestioned in that respect ever since. All the roads that have been opened for twenty years have been opened under this law. See remarks of Thurman, C. J., Shaver v. Starret, 4 Ohio St., reaffirming Lamb v. Lane, bottom of page 498, as to the effect of lapse of time during which such laws have been acquiesced in.
    It is plain that the constitution, article 1, section 19, simply secures a right which, like any other right, legal or constitutional, may be waived. 3 Comst. 571; 5 Hill, 468, etc. The legislature may certainly establish a rule of evidence of such waiver. Even courts do that by rule, i. e., by holding a defendant duly served and in default to have waived a jury.
    “The constitution, in the above respect, does not execute itself.” Lamb v. Lane, 4 Ohio St. 167. The legislature must provide the remedy for the right so given. 19 Ohio St. 173. Have they not a lawful discretion in fixing the mode and conditions of such remedy? Have they not provided a full and adequate remedy, protecting the rights, both of the state and of the owner? Do not the conditions imposed leave the owner’s rights unimpaired? Is this so clear a case pf pnconstitutionqlity qs this court has always required before interfering with a law ?
    
      Is not Warner’s position the result of his own. negléct rather than of the law? Had he followed the remedy provided, which of his rights would he have failed to get? That remedy having been neglected, he can have no other. L. M. R. R. v. Whiteacre, 8 Ohio St. 590; Hueston v. E. & H. R. R. 4 Ohio St. 685; Gas Light and Coke Co. v. Broadbent, 7 House Lords Cases, 606, 612. In which last case, it was held, that if the condemnation act provided a full and sufficient remedy for compensation, the-owner could not arrest the improvement by injunction.
    
      LL. B. Teetor and C. W. Cole, for defendant in error:
    The issue between the parties is a single one, viz:
    Is the statute constitutional?
    We hold that it violates sections 5, 16, and 19, of article 1, of the constitution of Ohio.
    A careful analysis of the statute will exhibit the following provisions, viz:
    1. Viewers are appointed to assess compensation and damages, instead of a jury, and, in this case, their action was final.
    2. The viewers are not required to make assessments, unless the owner has presented his claim in writing, containing'a description of his premises.
    8. No appeal is provided for, in case the owner fails to present his claim as required, even though he should have a good reason for not doing so.
    4. When a claim has been filed as required, and no compensation, oran inadequate compensation, is allowed,there is no appeal provided for to a tribunal in which the claim may be passed upon by a jury, except by the claimant executing an appeal bond with surety.
    5. It provides no remedy by due course of law for injnry suffered; on the contrary, it bars any application for damages, if the owner has failed to present his claim as required.
    I. The right to compensation for private property taken for public use., is an unconditional constitutional right, which can be waived only by the express consent of the owner, or by some positive act done by him equivalent thereto. The statute specifies conditions which may arise when it shall be taken without compensation, and is therefore unconstitutional.
    A brief review of the history of the law in Ohio, upon this subject, we deem important in this connection.
    The constitution of 1802 (sec. 4, art. 8) contained the following provision: “ Private property ought and shall ever be held inviolate, but subservient to the public welfare, provided a compensation in money be made to the owner.” By the decisions of the Supreme Court, made in pursuance of this constitution, it was held that compensation need not first be made in money nor secured by a deposit in money; that assessments might be made by commissioners instead of a jury, and that in making the assessments, account might be taken of benefits to the property of claimants, resulting from the proposed improvement; all of which will clearly appear from an examination of the following cases, viz: Bates v. Cooper, 5 Ohio, 115; Willyard v. Hamilton, 7 Ohio, 2 pt. 112; Symmonds v. City of Cincinnati, 14 Ohio, 173; Cooper v. Williams, 4 Ohio, 285.
    In Werkes’ case, 2 Ohio St. 307, Ranney, J., who delivered the opinion of the court, used the following language: “ This course of proceeding by commissioners had been much complained of, as unjust and oppressive to the owner of the property; and to make at once a proceeding within the protection of the constitution, and to be pursued in a court of justice with a common law jury, this fifth section of the thirteenth article was inserted when the constitution was revised.”
    It would be difficult to find language by which to express more positively and unequivocally that the right of the owner to compensation is unconditional, than that which was employed when the constitution came to be revised. Section 19, article 1, provides:
    (а) “ Private property shall ever be held inviolate.”
    (б) “ Compensation shall be made to the owner in money.”
    
      (c) In Lamb and McKee v. Lane, it was held that the provision that compensation shall be assessed by a jury, without deduction for benefits, applies to all cases mentioned in the section. By parity of reasoning, it follows that the provision, that “compensation shall first be made in money,” applies also to cases of taking private property for constructing public roads. 4 Ohio St. 177, 178; 2 Kent, 839; 3 Howard (Miss.), 240; 3 Hill (S. C.), 100.
    
      (d) “ Compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.”
    In the case of Lamb and McKee v. Lane, 4 Ohio St. 167, it was decided that the provision of the constitution, that compensation shall be assessed by a jury, without deduction of benefits, applies to cases of land taken for the purpose of constructing public roads, as well as all other cases; that the word “jury,” in all places where used in the constitution, means a tribunal of twelve men; and that no valid appropriation of property for public use can be made without a law providing compensation to the owner, to be assessed in the mode prescribed in the constitution.
    Upon the subject of eminent domain, Blackstone says (1 Com. 139):
    “The public is now considered as an individual, treating with an individual for an exchange. All the legislature docs is to oblige the owner to alienate his possessions for a reasonable price.”
    The constitution accordingly declares that “ compensation shall first be made,” and that, too, “ without deduction for benefits.” That is to say, by no technicalities shall any advantage be obtained over the owner; and by no subtlety of reasoning-shall it be made to appear that the benefits of the proposed improvement will be equal to the value of the property taken. The owner’s right to compensation for the actual value of the land appropriated, is unqualified and unconditional. The right of the state to the land depends upon the compensation, and upon that only — compensation being made a condition precedent to the appropriation.
    
      In a proceeding to condemn private property for public use, the owner is not an ordinary defendant, resisting an effort of the plaintiff to enforce, by suit, some right which is being withheld; and it is against the spirit, if, indeed, it is not against the letter of the constitution, to apply to him the strict rules of law as to default, and to require of him the same activity in looking after his interests in the one ease as in the other. But the statute now under consideration requires greater diligence at his hands than is required of the defendant in an ordinary suit at law.
    The defendant, Warner, had a good reason for not being present at the time the view was made. At any rate, he was, by the law, entitled to the last day in which to present his claim. He says himself he never waived his right to compensation, nor intended to waive it; that he intended to return on the day the view was made and present his claim; and that he actually started home, giving himself sufficient.time to make the journey, but was prevented from being present by an unavoidable accident.
    But it is claimed that the defendant himself, by his failure to present his claim in writing, waived his right to compensation. In support of this proposition, the case of Cupp v. Comm’rs Seneca County, 19 Ohio St. 173, is cited.
    The statute, under which that case arose, differs in several vital points from the one now in question, which will be hereinafter considered. The cases themselves are different.
    The language of the ditch law is, that on failure to make application the owner “ shall be deemed and held to have waived his right to compensation and damage;” while that of the road law is, “all applications for damages shall be barred, unless they be presented as provided by this act” —the one being a rule of evidence and the other a statute of limitations.
    That the decision, in the case of Cupp v. Comm'rs of Seneca County, has no application to the question of waiver, as it arises in this case, we do not claim.
    The District Court below based their decision upou the burden which the statute imposes upon the right to a jury trial, and in their opinion they use the following language: “We suppose the Supreme Court has gone to the extreme verge in sustaining the various provisions of these laws, and as we do not think they have decided this point, and we ourselves regard the law as failing to accord a claimant his constitutional right, we grant the injunction against further proceedings in this case.” And, since the decision in Cupp’s case was the decision of a divided court, it will not be considered presumptuous to ask the court to reconsider that decision in the light of the case now presented.
    It has been held that not only a statutory, but a constitutional right may be waived by written or even by parol consent. Baker v. Braman, 6 Hill, 48; People v. Murray, 5 Hill, 468; Embury v. Conner, 3 Comst. 519.
    In all cases referred to by opposing counsel, and in all the cases which we have examined upon this point, there was some positive act done by the claimant, which was held to be a waiver of his constitutional right.
    A constructive waiver is of the nature of a statute of limitations. The express words of this statute are: “That all applications for damages shall be barred, unless they be presented as provided for by this act.”
    That the state takes a fee in the land appropriated for a public road, and that its title and possession depend upon the compensation, are propositions.which we shall not stop to argue. It is a proposition equally clear, that the right of the owner to compensation does not arise until the state has, in fact, taken his property. Hampton v. Commonwealth, 19 Penn. 329.
    We do not deny the constitutional right of the legislature to pass statutes of limitation, but the length of time before they become a bar must be reasonable. Rexford v. Smith, 1 Kernan, 308; Jackson v. Lamphire, 3 Peters’ S. C. 287.
    • If we are right in considering this provision as of the nature of the statute of limitations, then the novel case is presented of a statute of limitations becoming a bar simultaneous with the beginning of the right of action.
    The constitution guaranties to the owner his right to the enjoyment of his land, or, if it be taken from him by the state, that he shall have full compensation therefor. The remedy, or the proceedings whereby that right is affected, is left to the wise discretion of the legislature. Tf, however, the power of the legislature over the remedy is exercised in such a way as seriously to violate the right, it become the duty of the judiciary to interfere. C. W. & Z. R. R. Co. v. Comm’rs of Clinton County, 1 Ohio St. 81; Kramer v. C. & P. R. R. Co., 5 Ohio St. 146; Howell v. Fry, 19 Ohio St. 559; Marbury v. Madison, 1 Cranch, 137; 1 Kent, 449.
    By the operation of this statute the defendant’s property, around which has been thrown in an especial manner the protection of both the constitution of the United States and of the State of Ohio, is taken by the state, upon his failure (and for which failure he was not responsible) to comply with the technical requirement of filing his claim in writing. "We claim that this is such an abuse of legislative discretion as not only to warrant, but to demand the interposition of this court, as it has already justified the interposition of three subordinate tribunals.
    The proceeding by which lands are appropriated for the construction of roads, as defined by the court in the ease of Cupp v. Comm’rs of Seneca County, is substantially a proceeding in rem. The viewers have in their possession a description sufficiently accurate, and all other means necessary to enable them to make the assessments. S. & C. 1290, 1291. And we fail to see how any hardship would be imposed on anybody, or any obstruction placed in the way of public improvements, by requiring compensation to be assessed for the lands of those who have not expressly relinquished their right to the same, notwithstanding they have not filed applications' therefor in writing. The fact that lands of “ minors, idiots, or lunatics,” are made exceptions to the bar or waiver, it seems to us, is conclusive upon this point. Suppose there should be a dispute as to the title, and two claims should be filed for the same premises, would all further proceedings have to be stayed until the question of title could be settled; or would not the value of the property be assessed, and a deposit in money of the amouat required be made and paid over to the successful contestant upon the settlement of the question of title?
    A law which, in its provisions, falls short of this, it seems to us, violates both the letter and the spirit of the constitution.
    The owner’s right to have his compensation passed upon by a “jury of twelve men, presided over by a court,” is unconditional ; and, in a proceeding to condemn private property for public use, the law should not place any obstruction whatever in the way to a free enjoyment of that right. This statute, by requiring claimants to give bond and security, before their compensation may be passed upon by a constitutional jury, imposes such a condition as to render the act unconstitutional and void.
    The constitution provides, section 5, article 1, that “the right of trial by jury shall be inviolate;” and, as an additional safeguard to private property taken for public us it provides further, in section 19, article 1, that “ compensation shall be assessed by a jury without deduction for benefits to any property of the owner.”
    In Lamb v McKee v. Lane, 4 Ohio St. 173, which is perhaps the leading case upon'this subject, the right of the owner to have his compensation assessed by a jury of twelve men, is decided beyoud question. In the course of their decision in this case, the court employ the following language: “ We entertain no doubt of the validity of an enactment that requires an assessment of the damages, in the first instance, by a commission — as, for example, the viewers of a road — provided, a right of appeal is given to a court in which they may be assessed by a constitutional jury.” But as that point was not necessary to the decision of the question before the court, it may properly be regarded as an obiter dictum.
    
    The statute now in question provides that, before a claimant can have an appeal to a tribunal in which compensation may be-assessed by a constitutional jury, he must enter into an appeal bond, with security, in tne amount of two hundred dollars. And he might well say, in the first instance, he would not submit his claim to the viewers, knowing that, if their action in the premises should prove unsatisfactory, he could have no appeal without giving bond with security. Nor is the defendant now in a situation not to be able to take advantage of this objection; as is claimed by opposing counsel.
    There is a vital difference between this statute and that under which the case of Cupp v. The Commissioners of Seneca County arose, in reference to the right of appeal. Under the former, if application for damages or compensation is made by any owner, the case is immediately certified by the commissioners to the Probate Court, where a jury is impaneled to assess and determine the amount of compensation — no bond being demanded, nor any obstruction interposed. S. & S. 313, 314. And we submit, that that is the sort of appeal which the court had in mind, when using the language before referred to, in the case of Lamb & McKee v. Lane.
    
    If the legislative discretion lias been so far abused as to enact laws, making the right of trial by jury dependent upon conditions which seriously impair that right, the courts will interpose and pronounce such acts unconstitutional and void.
    
      Green v. Biggs, 1 Curtis’ C. C. 311; United States v. Rathbone, 2 Paine’s C. C. 578; Webster v. Reid, 11 How. S. C. 473; Lamb & McKee v. Lane, 4 Ohio St. 173; Norton v. McLeary, 8 Ohio St. 209; Howell v. Frey, 19 Ohio St. 559; 2 Kent, 13, n.; 13 How. (N. Y.) 142.
    This is not a case similar to a suit before a magistrate to enforce an ordinary claim. It is the question of taking the property of an owner without his consent, concerning which Sherman, Senator, said, in Livingston v. The Mayor of New York, 8 Wendell, “Taking a man’s property without his consent, is one of the highest powers that is exercised under the constitution, and ought to be used with great caution.”
    
      We have found no case exactly parallel upon this question. The one most nearly in point is Green v. Biggs, 1 Curtis’ C. C. 311; and the attention of the court is called specially to this case. The decision was that “a state legislature can not make the right to a trial by jury dependent on giving a bond, with surety, for the payment of the penalty and costs.”
    But it is claimed that the defendant, by his own negligence, has forfeited his right to compensation. And of what negligence was he guilty ? Precisely that of which one of the viewers was guilty, on the day first appointed— absence from the view. And it is proper to note, that, if this viewer had not been absent in the first instance, the defendant would have filed his claim and received compensation. An unavoidable accident kept him away from the adjourned meeting; and of this misfortune advantage is taken to get his land without compensation.
    In a civil action before a justice of the peace, or in the Court of Common Pleas, the rights oía judgment debtor are more safely secured than are the rights of property owners under this law. In the Court of Common Pleas a defendant has two years in which to.come in and move to vacate a judgment. 8. & C. 1112-1115. And is there a court in Christendom that would refuse to set aside a judgment, upon affidavits of the defendant that he was prevented from defending on account of an unavoidable casualty, and that the claim on which the judgment had been rendered was wholly without consideration ?
   McIlvaine, J.

There is no controvei’sy between, the parties as to the material facts appearing in the testimony set out in the bill of exceptions.

The proceedings which resulted in the order to open the road, issued to the plaintiff in error as supervisor of the road district, were in strict conformity to the provisions of the statute of January 27, 1853 (S. & O. 1289), then in force. It appears, also, that the defendant in error was present at the time and place appointed for the view, for the purpose of claiming damages; but one of the viewers failing to attend, the claim was not presented, and the view was postponed for two days (of which postponement the defendant in error had due notice), and at that time the viewers met and duly performed their duties, and made report. The defendant in error was not present at the view, nor was his claim for compensation or damages presented to the viewers in writing, as required by the statute.

It further appears, that the defendant in error did not present his claim for damages on the first day appointed for the view, for the reason that the board of viewers was not full; and on the second day, when the view was actually made, he was prevented from being personally present at the view, by reason of the fact that on the day previous he had gone from his home and the neighborhood of the view, and was unable to return in time to meet the viewers, by reason of irregularity in the movement of the train of cars upon which he was traveling.

Upon this state of facts, considered in connection with the provisions of the constitution of the state, and the statutes in relation to roads and highways, the following questions are made:

1. Does the statute law conflict with the provisions of the constitution relating to trial by jury?

2. Does the statute contravene the provision of the constitution in relation to the inviolability of private property ?

3. Do the facts show a waiver, on the part of defendant in error, of his right to compensation for the lands appropriated ?

The statute of January 27, 1853 (S. & C. 1289), and the amendatory act of April 8, 1856 (S. & C. .1301), provide for a preliminary assessment of damages sustained by any person through whose lands a county public road is proposed to be established, by a board of viewers composed of three disinterested freeholders of the county, who are required to report their assessments in writing to the county commissioners; and if an order for the establishment of the road be made upon the report of the viewers, it is further provided, that every claimant of damages on account of such road may appeal from the order of the commissioners to the Probate Court, by executing “ a bond or undertaking, payable to the State of Ohio, in a penal sum of not less than one hundred or more than three hundred dollars, in the discretion of the auditor, conditioned for the payment by such appellaut of all costs that may be adjudged against him,” etc. And on such appeal, provision is made for the assessment of compensation or damages by a jury; and if the amount assessed by the jury exceeds the amount assessed by the viewers, the appellant is entitled to costs; but if the sum be not greater the appellaut shall be adjudged “ to pay all costs created by the appeal.”

The objection made to this legislation by the defendant in error is, that the bond or undertaking required of the appellant is an unauthorized condition and burden imposed on his constitutional right to a trial, or assessment of eompensation, by a jury.

Section 5 of the first article of the constitution provides, “ The right of trial by jury shall be iuviolate,” and section 19 of the same article provides, “Private property shall ever be inviolate, but subservient to the public welfare. When taken . . . for the purpose of making or repairing roads which shall be open to the public without ■charge, a compensation shall be made to the owner in money, . . . and such compensation shall be assessed 'by a jury.”

In the first place, it is claimed in argument, that the right to a jury assessment, secured by section 19, is unconditional, and that (whatever may be the rule as to the right secured by section 5), the provision of section 19 nullifies all legislation on the subject which does not provide, without restriction, for an assessment of compensation by a jury in the first instance.

The constitution of 1802 did not provide for the assessment by a jury of compensation to the owners of private property taken for a public use. Section 5, however, of the first article of the present constitution, originally appeared as section 8, of article 8, of the old. constitution. But, it will be observed, that the right of trial by jury was not thereby for the first time introduced into our system of jurisprudence, although that was the first constitution of the state. The right appears to be therein recognized as pre-existing, and the purpose of .the provision would seem to be to preserve the right, whatever its nature and scope might be, inviolate. The right thus recognized, however, did not extend to actions or proceedings for the appropriation of private property to public uses. 5 Ohio; 411; 7 Ohio, 2 pt. Ill; 14 Ohio, 147; 5 Ohio St. 140. The purpose, therefore, of introducing into the present constitution the last clause of section 19 of the first article was to enlarge the rights of the citizen by extending the right of trial by jury to a class of cases wherein it did not before exist. But we can find no evidence of an intention on the part of the framers of the constitution to fortify this extension of the right, with immunities and privileges unknown in the history of the law relating to juries, and not enjoyable in other eases wherein the right of such trial previously existed. Henqp, we conclude that the mode in which the right secured by section 19 may be exercised and enjoyed, is subject to legislative control, to the same extent as in other eases where the right is secured by section 5. And inasmuch as the nature of the right and the means whereby it may bo enjoyed, are wholly undefined and unexplained in the constitution, they must be ascertained by reference to the common law and statutory law upon the subject, in force at and before the time of the adoption of the constitution.

The history of our jurisprudence, prior to the adoption of the present constitution, shows, that in civil cases within the jurisdiction of justices of the peace, wherein the right of trial by jury was fully recognized, the right was subordinated to the discretion and power of the legislature to compel a party to submit, in the first instance, to a trial before a court without a jury; and in all such cases the right to a jury was burdened with the condition that the party aggrieved, before the right could be enjoyed in an appellate court, should execute an appeal bond, conditioned not only for the payment of costs of appeal, in the event of an adverse judgment in the appellate court, but of all the costs, as well as the judgment, on the merits. And since the adoption of the constitution the jurisdiction of justices of the peace has been extended by legislation to sums between one and three hundred dollars, without providing for a constitutional jury therein, and the judgments under such extended jurisdiction are final, unless the party desiring a trial by jury execpte" a bond with like condition. And in Norton v. McLeary, 8 Ohio St. 205, this court held that such legislation was preserved from constitutional infirmity, inasmuch as the right to appeal to a court where such jury could be had, was provided for.

Such has been the theory aud practice in this state for seventy years, under a constitution declaring that “ the right of trial by jury shall be inviolate,” and the statutes now under consideration have been in force and constant use for a period of sixteen years without being questioned, so far as we know. In view of these facts we are unable to hold that the moderate and reasonable restriction imposed upon the enjoyment of the right by this statute, is an impairment of the right itself, within the meaning of the constitution.

Similar questions have frequently arisen in tlvs courts of several of our sister states, and, when made in ckA actions, similar conclusions have generally been reached. Emerick v. Harris, 1 Binn. 416; McDonald v. Schell, 6 S. A. R. 240; Biddle v. Commonwealth, 13 S. & R. 405; Beers v. Beers, 4 Conn. 535; State v. Brennan’s Liquors, 25 Conn. 278; Curtis v. Gill, 34 Conn. 54; Jones v. Robbins, 8 Gray 329; Hapgood v. Doherty, 8 Gray, 374; Keddie v. Moore, 2 Murphy (N. C.), 41; Wilson v. Simonton, Hawks (N. C.), 442; Flint River Steamship Co. v. Foster, 5 Ga. 208; Murford v. Barnes, 8 Ga. 444; State v. Beneke, 9 Iowa, 203; Deaton v. Polk Co., 9 Iowa, 594, etc.

2. Does the statute contravene the provision of the constitution iu relation to the inviolability of private property ?

The proviso in section 6 of the act of January 27, 1853, reads as follows : “ Provided, that such viewers shall not be required to assess or award damages or compensation to any person or persons, except minors, idiots, or lunatics, in consequence of the opening of said road, unless the owner or owners, or their agents, having notice, as provided for in the foregoing section, of the application and proceedings by which his, her, or their property is sought to be appropriated, shall have filed a written application with said viewers, giving a description of the premises on which, by them, damages or compensation are claimed; provided, further, that all applications for damages shall be barred, unless they be presented as provided for in this act.”

It is claimed that this proviso contravenes section 19, article 1, of the constitution which provides, that when private property is taken for the purpose of making or repairing roads, etc., “a compensation shall be made to the owner in money,” etc.

The right to compensation is undoubtedly made absolute and unconditional by the terms’of this provision in the com stitution ; but it is also true that the owner may waive his right to compensation, although it be a constitutional right. 6 Hill, 48; 5 Iiill, 468; 3 Comst. 519. But the claim of the defendant in error is :

1“ That such waiver can only be made by express consent, or by some positive act done by the owner equivalent thereto.

2. That the rule of the proviso, that all applications for damages shall be barred, unless presented as provided for in said act, was not intended as á rule of evidence of the waiver of the right to compensation, but as a bar by lapse of time.

3. That such a bar, by limitation of time, is unreasonable and void.

1. As to the first proposition, we have no doubt that, in the absence of all statutory rules upon the subject, the proof of a waiver of a legal right must be found in the express assent of the party, or by some act done by him from which his .assent may be inferred.

2. As to the second proposition, we are of opinion that the intent of the legislature was to declare a rule of evidence, by which a waiver, on the part of the owners (other than minors, idiots, and lunatics), of their claim for compensation for property taken, might be established. The power of the legislature to declare such a rule of evidence is not questioned, at least, to the extent that the parties affected thereby might have actual notice of the time and place of the view.

"We are inclined to give this construction to the statute for the reason, among others, that we deem it beyond the power of the legislature to bar, by a statute of limitation, an action or a right secured by a constitutional provision immediately upon the accruing or maturing of the right. Such legislation, if not in terms, would, in effect, nullify the constitution, and work a forfeiture of private ¡rropertj'-. If, then, such be the law, the presumption being that the legislature did not intend to contravene the constitution, it becomes our duty to so construe the statute as to give it effect, and at the same time preserve the constitution from invasion, if such construction cau reasonably be made.

It is true that the phraseology of the proviso is not exactly equivalent to a declaration that compensation for lands should be deemed waived by the owner failing to present his application therefor in writing. But it is perfectly clear from the very words of the proviso that the right to apply for compensation in such case is barred; and it is equally clear, from the tenor of the whole act, that the legislature intended in such case, notwithstanding compensation had not been made, and notwithstanding the right to apply for compensation was barred, that the property should nevertheless be appropriated and the road established. Hence, one or the other of two conclusions must follow, to wit: the legislature inteuded to take private property for a public use without compensation and without the owner’s consent; or, it intended that the circumstances named in the proviso should be deemed and taken as evidence that the owner had consented to waive his right to compensation. The former intention can not be presumed, nor can it be admitted, except from the necessity which arises upon language susceptible of no other meaning or inference. And we think there is no such necessity in this case.

Do the facts show that the defendant in error waived his right to compensation for the lands appropriated?

The defendant in error had full and actual notice, under the statute, of the proceedings by which his property was appropriated, and of the time and place of'the view, and he neglected to present his application for compensation to the viewers in writing. He is also chargeable with notice of the provisions of the statute and of the consequences of his neglect to present his claim. It must also be presumed that he knew that the public welfare required the road to be established through his lands. And with knowledge of all these facts, he left his home and the neighborhood of the view on the day preceding the.time appointed for the view, without appointing an ageut to present his claim or taking other steps to secure his compensation, and did. not return until after the report of viewers had been made.

Upon this state of facts, we are of opinion that the rule of the statute, as to waiver of compensation on his part, ought to have been applied. It is true that the defendant in error testifies that he did not waive or iutend to waive his right to compensation-. But we think the statutory evidence of his waiver must prevail, and that under that rule and the circumstances of this case, he is concluded from controverting the legitimate inferences to be drawn from his default in not presenting his claim for damages to the viewers in writing.

We do not, however, undertake to say, nor do we believe that the failure to present an application to the viewers in wilting for compensation will, in every case and under all circumstances, preclude the owner of lands condemned to a public use from enjoining the appropriation; but any default which is not excused by unavoidable casualty, or by circumstances against which reasonable precaution could not have provided, will defeat such relief.

In this case we can find no such excuse. It is said that the return train was detained by an accident upon the railroad; but of this circumstance the defendant in error had assumed the risk, and against it he might well have provided by the employment of an agent to present his claim in his absence. Had he been absent from home when first served with notice of the view, with no opportunity to employ an effective agent, and his return had been prevented by like circumstances, a very different question would have arisen, and equity might afford relief. But here, his departure from home was voluntary and upon the eve of an, important event, and we can not regard his default otherwise than as the want of reasonable precaution and diligence under the circumstances.

The legislature, in the exercise of its discretion, intended to establish a stringent rule in these cases, and there is no reason why it should not be strictly enforced.

We fully appreciate the importance of protecting private property from unnecessary and unconstitutional invasions. But, nevertheless, under our constitution private property is subservient to the public welfare, and when a real necessity arises for its appropriation to a public use, and a fair and reasonable opportunity for the adjustment and payment of compensation to the owner, through the action of a jury, has been provided by law, a wise policy would dictate that he should be diligent in the assertion of his rights, so that the wants of the public may be supplied without unnecessary delay.

Judgment reversed and cause remanded.  