
    The State of Ohio, on the relation of Silas V. Hayes and Moses Hayes, v. The Cincinnati and Indiana Railroad Company.
    Where, under the act of April 30, 1852, “to provide for compensation to owners of private property appropriated to the use of corporations,” a railroad corporation regularly instituted proceedings in the proper probate court for the appropriation of a right of way over lands of a party made a defendant in such proceedings, and carried the same forward until a verdict was rendered and confirmed by the probate court, fixing the amount to be paid by the corporation for the right of way sought to be appropriated; and the corporation immediately thereupon, having neither paid nor secured to be paid the amount of the verdict, caused notice to be entered on the journals of said court of its abandonment of such intended appropriation — Held:
    1. That the probate court had no jurisdiction to proceed, on motion of the landowner, to thereupon render a judgment or order for the payment, by the corporation, of the amount of the verdict.
    2. Such proceedings terminating when and as they did, the corporation thereby gained nothing, and the land-owner lost nothing; the latter can not enforce •against the former the payment of the amount of such verdict, either by action or by mandamus.
    3. In case there had not been entered on the journal of the probate court any such express abandonment, by the corporation, of its proposed appropriation; but where the railroad corporation afterward, failing either to pay or to secure to be paid the amount of the verdict, actually constructed its road on another line, not touching the lands of the defendant to the proceeding, the like results in law would follow.
    ^Motion for mandamus. Reserved in the district court of Hamilton county.
    The case is stated in the opinion of the court.
    
      Collins & Herron, for relators:
    1. The relators have a right to the amount of the condemnation money assessed against the railroad company by the verdict of the jury and confirmed by the judgment of the probate court. The company can not be allowed to submit to a jury the question of damages by reason of the appropriation, await the verdict and its confirmation by the court, and then adandon or renounce the proceeding-can not bind the owner of the land if the verdict please them, and yet not be themselves bound if it displease them. S. & C. Stat. 311; Const., art. 1, sec. 19; Smart v. Portsmouth & Concord R. R. Co., 20 N. H. 233; Dayton & Western R. R. Co. v. Marshall, 11 Ohio St. 500; A. & G. W. R. R. Co. v. Campbell, 4 Ohio St. 583; L. M. R. R. Co. v. Collett, 6 Ohio St. 184; S. & I. R. R. Co. v. Patrick, 7 Ohio St. 170; Redf. on Railways, 116, 117; Code, sec. 372; Taylor v. Alexander, 6 Ohio, 144; Comm’rs of Montgomery Co. v. Cary, 1 Ohio St. 463; 19 Ohio, 245; Conner v. Drake, 1 Ohio St. 463; B. & P. R. R. v. M. R. R., 1 Gray, 360; Drake v. H. R. R., 7 Barb. 552; Harrington v. Berkshire Co., 22 Pick. 262; Amherst’s Case, 1 Ventr. 187; S. C., 2 Keb. 87; Mayor of New York, ex parte, 20 Johns. 268; Neal v. P. & C. R. R. Co., 31 Pa. St. 19; Hudson River R. R. v. Atwater, 3 Sandf. 268; Westbrook v. North, 2 Greenl. 179; Hampton v. Coffin, 4 N. H. 517.
    2. As to the form of the remedy: Fox v. Burns, 2 W. L. Monthly, 387; Dimick v. Brooks, 21 Vt. 569, 578; Williams v. Jones, 13 M. & W. 633; Shelburne v. Eldridge, 10 Vt. 123; 1 Robinson (Va.), 167; Harrington v. Berkshire Co., 22 Pick. 263; Tapping on Mandamus, 134, 135, 218; Rex v. Catharine’s Dock, 4 B. & Ad. 360; Wormwell v. Harlstone, 6 Bing. 668; Treat v. Middleton, 8 Conn. 243; Rex v. Hungerford Market Co., 4 B. & Ad. 327; Rex v. Town of Manchester, 4 B. & Ad. 333; Rex v. Deptford Pier Co., 8 A. & E. 910; Rex v. Stanforth Canal, 1 M. & S. 33; Rex v. Harham
    
      Roads, *4 Jurist, 50; Amherst’s Case, 1 Ventr. 187; Rex v.
    
    Hull Railway, 13 Law Journal, 257; S. C., 8 Jurist, 491; 6 Q. B. 70 ; Rex v. Thames, 5 A. & E. 104; 6 A. & E. 355, 367; 8 A. & E. 439; Rex v. Great Western R. R., 1 D. & M. 471.
    
      £. Them Wright, for the railroad company:
    The relators have no right to the payment of the verdict of $3,000. They have no right to the money because nothing of right or property has been taken from them. The inchoate appropriation proceedings did not divest the relators of their land, and vest it in the railroad company. Const., art. 1, sec. 19, and art. 13, sec. 5; S. & C. 24, 51, 277, 311; Baltimore and Susquehanna R. R. Co. v. Nesbit et al., 10 How. 395, 398; Hudson River R. R. Co. v. Outwater et al., 3 Sandf. 689; Steubenville and Indiana R. R. Co. v. Patrick, 7 Ohio St. 170; Graff v. Baltimore, 10 Md. 544; North Missouri R. R. Co. v. Lackland, 25 Mo. (4 Jones) 515; The matter of Anthony Street, 20 Wend. 618; New York City v. Masses, 6 Johns. 46; The matter of Canal Street, 11 Wend. 154; The People v. Brooklyn, 1 Wend. 318; Hawkins v. Trustees of Rochester, 1 Wend. 54; Matter of Mayor, etc., 6 Cow. 571.
    The law gives us the power to abandon one route and take another. S. & C. 277, sec. 11.
    Mandamus is not the proper remedy. Code, secs. 569, 570; Shelby v. Hoffman, 7 Ohio St. 450; Ingerson v. Berry, 14 Ohio St. 321; Turner’s matter, 5 Ohio, 542; C., W. & Z. R. R. Co. v. Comm’rs of Clinton Co., 1 Ohio St. 305; State ex rel. Huston v. Comm’rs of Perry Co., 5 Ohio St. 502; Hollister & Smith v. Judges of District Court, 8 Ohio St. 201; State ex rel. Whiteman v. Chase, 5 Ohio St. 528; Marbury v. Madison, 1 Cranch, 170; 3 Bla. 110; Rex v. Baker, 3 Burrows, 1266; The People v. Brooklyn, 1 Wend. 318, 324; Redf. on Railways, 457.
    
      A. Brown, for the railroad company:
    1. The remedy by mandamus is not applicable to the case made by the relators. Shelby v. Hoffman, 7 Ohio St. 455; C., W. & Z. R. R. Co. v. Clinton County, 1 Ohio St. 78; Comm’rs of Rollersville v. Sandusky County, 1 Ohio St. 149.
    *2. The relators are not entitled to any remedy, and therefore not to this one:
    (1.) The railroad company has no legal right to the plaintiffs’" lands until and unless the money awarded by the verdict of the jury is actually paid to the court of probate or to the party; and if the company, by the proceedings in the probate court, before payment of the amount of the verdict, obtain no vested right to the land of these plaintiffs, then the owners have obtained no vested right to the money so assessed.
    (2.) It is not the confirmation of the verdict, which vests in the ■corporation the right to the plaintiffs’ lands, but the payment of the money to the owner, or its deposit in court.
    (3.) This payment of the money by the corporation is the precedent condition uj)on which any right is obtained by the corporation or lost by the owners. Const., art. 13, sec. 5; see Stacey v. Vermont Central R. R. Co., 27 Vt. 39; Baltimore R. R. Co. v. Nesbit, 10 How. 396; Redf. on Railways, 119.
    3. The claim of the relators would prevent any change of route or location by the railroad company, as is authorized by the railroad act. S. & C. 277, see. 11.
   Brinkerhoff, J.

In disposing of this case I shall attempt but little more than to state the case and to announce the conclusions at which the court has arrived.

The defendant is a railroad corporation under the laws of this state. The constitution of Ohio (art. 1, sec. 19) declares that, “in all cases, other than in time of war or other public exigency, where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money.” And in art. 13, sec. 5, it declares that “no right of way shall be appropriated to the use of any corporation until full ■compensation therefor be first made in money, or first secured by a deposit of money,” etc.

In strict accordance with this fundamental provision, is the language of the statute, passed expressly to carry it into effect. It provides (sec. 1) that all appropriations of private property to the use of corporations, shall be made and ^conducted in accordance with its provisions; that (sec. 2) whenever any corporation shall wish to make any such appropriation, it shall ■ file a statement containing a description of the property and rights sought to be appropriated; the jury are summoned (sec. 3) for the purpose of •estimating and valuing the amount of compensation which the ■owner shall be entitled to by reason of such appropriation. And the only judgment authorized by the act is to be rendered after the payment of the money, to the effect that the corporation shall hold the property in the proceedings mentioned, for the purposes for which the same was appropriated, and enter the same upon record; and thereupon such corporation shall hold’ the same accordingly, and be entitled to execution to put them in possession thereof. 3 Curwen’s Stat. 1818.

The Cincinnati and Indiana Railroad Company filed its statement, in the probate court of Hamilton county, against Silas V., Hayes and divers other land-owners, setting forth that their railroad Had been located over certain lands of the several owners and defendants; that an effort had been made to agree with them, respectively, in relation to the amount of compensation to be paid them; that no such agreement could be made; and asking the appointment of a jury, under the statute, for the assessment of the damages to each of them, by reason of the appropriation of their respective lands thus sought to be made by the railroad company.

Such a jury was selected and sworn; they viewed the lands of the relators, and heard evidence in relation to the value, etc., and returned a verdict, in the separate matter of these relators, in their favor for $3,000, as the damages which would accrue to them by reason of the appropriation, etc.

Before the confirmation of this verdict in the case of relators, the corporation gave notice, upon the record of the probate court, in the proceeding then pending, that they abandoned the proposed appropriation of the lands of the relators, and would not exercise their right to pay the amount of the verdict, but declined so to do.

The probate court entered a confirmation of the verdict, and, on the motion of the relators for the entering of a judgment by the probate court against the corporation in their *favor for the amount of such verdict, or of an order that said corporation should pay said sum of $3,000 to the relators, refused to enter such judgment or order.

The railroad company has never taken possession of any portion of the lands of the relators mentioned in the proceedings in the probate court, and never entered upon the same, except to make the preliminary survey for the purpose of instituting the proceedings for appropriation; and, in accordance with the notice given at the time the confirmation of the verdict was urged, abandoned the idea of taking and paying for the relators’ land, and went elsewhere and actually located and built their railroad on other grounds, where they have since completed and operated their road, and. have always refused, and now refuse, to pay the relators said sum of $3,000, and to enter upon and take possession of their land^. once sought to be appropriated.

The relators now seek, by the writ of mandamus, to compel the railroad company to pay into the probate court, for their use, the-sum of $3,000 and interest.

On this state of case we are of opinion:

1. That the confirmation of the verdict of the jury by the probate court was, in effect, merely a negation of the right of the railroad company to a1 new trial.

2. That the probate court was right in declining to render any judgment and to make any order against the railroad company for the payment of the amount assessed by the jury; no such judgment or order being warranted by law.

3. That no appropriation of the lands of the relators could be completed, no title from them could be acquired, and no incumbrance could be imposed on their estate by the railroad company,. until the amount of compensation fixed by the finding of the jury was paid in money, or secured to be paid by a deposit of money.

4. That the finding of the jury not being complied with, the relators are in statu quo — as if no proceedings in the probate court had ever been commenced. They have lost nothing, and are not entitled to complain of anything. The railroad company having abandoned all claim to a right1 of way over the land of the rela-tors, it could not thereafter ^acquire such right of way except by the commencement of proceedings de novo, and perhaps not. even by such means.

5. If there was no express abandonment of the claim to appropriate a right of way entered of record in the proceeding in the probate court, the fact that the corporation has constructed its-road upon another line, not touching the lands of the relators, is conclusive evidence of such abandonment, and leads to like results.

And we are furthermore unanimously of opinion, that if there-were no express abandonment of claim in either of these ways, it woiild be the right of a land-owner, immediately after verdict and. its confirmation, by a demand from the corporation of the amount assessed in his favor, to compel it to elect whether it would corn•píete its appropriation by the payment of the money, or, on failure to do so promptly within a reasonable time, submit to be held to have abandoned its claim, and to have subjected itself to whatever consequences are involved in such abandonment. It would be intolerable that the land-owner should be hung up in uncertainty in respect to his rights by the non-action of the corporation.

Questions have been made in argument in respect to the remedy by mandamus in a case of this kind; but as we have preferred to decide the case upon the rights of the relators, the conclusions we 'have arrived at leave us no occasion to consider their remedies.

Mandamus refused.

Day, C. J., and White, Welch, and Scott, JJ., concurred.  