
    APPROPRIATION FOR ROAD PURPOSES.
    Court of Appeals for Fairfield County.
    Stephen A. Holtsberry v. The State of Ohio Ex Rel. Frank R. Fawver, Superintendent, Public Works of Ohio.
    Decided, September 24, 1918.
    
      Roads — Appropriation of Land for — Verdict may be Returned by Three-Fourths of the Jury — Burden of Proof — Necessity and Purpose of the Appropriation Need 'not be Set Forth in the Certificate.
    
    1. In an action for appropriation of land for road purposes, tbe burden of proving tbe value of tbe land sought to be taken is upon tbe property owner.
    2. 'Error does not lie in sucb a ease to failure of tbe certificate of appropriation to set forth tbe necessity of tbe appropriation or tbe purpose for which tbe land sought to be appropriated is to be used.
    
      Augustus A. Mithoff, for plaintiff in error.
    
      Joseph McGee, Attorney General; John F. Kramer and J. U. Fultz, Prosecuting Attorney, contra.
   Houck, J.

This case is here on error from the judgment of the probate court of Fairfield county, Ohio. The parties here stand in the reverse order from where they stood in the lower court.

The plaintiff below brought suit to appropriate certain real estate belonging to the defendant below for road purposes. A jury returned a verdict for the plaintiff and allowed the defendant the sum of $260 as compensation for the land so taken. A motion for a new trial was overruled and a judgment entered on the verdict.

Plaintiff in error seeks a reversal of this judgment for the following reasons:

1. The court erred in charging the jury that three-fourths of its number or more might return a verdict in the case.

2. Error of the court in its charge to the jury that the burden of proof as to the value of the land, sought to be taken, was upon the land owner.

3. Error in overruling motion of defendant below to dismiss the proceedings because the certificate of appropriation failed to state that it was necessary to appropriate the real estate in question, and further that- said certificate failed to state the purpose for which the land sought to be appropriated was to be used.

As to the first claim of error this court has heretofore passed upon this question in the case of F. B. Smith, et al. v. Carrie Craig, et al., 29 O. C. A., 236, the same being adverse to the claim of plaintiff in error.

As to the second and third grounds of alleged error, will say the suit in this case was brought under and by authority of and as a special proceeding, as authorized under Sections 442 to 450, General Code.

An examination of the record in this case clearly shows that each and every step necessary to be taken by the plaintiff below, as required by said sections of our statute, was fully carried out and the judgment of the lower court is clear and free from’any prejudicial error in any way affecting the substantial rights of the plaintiff in error.

It therefore follows that the judgment of the probate court should be affirmed.

Judgment affirmed.

Powell, J., and Shields, J., concurring.  