
    Railroad Co. v. O’Harra.
    
      Eminent Domain — Right of landowner to compensation for soil of an adjacent highway, taken by a railroad company — May compel company to condemn and pay for — Sections 32S3 and 6448, Revised Statutes, construed — Limitation, of actions thereunder — Proceedings^ in Probate Court — Right of Jury Trial, etc.
    
    1. The owner of the soil of a highway, taken by a railroad company for its roadway, under an agreement between the company and the commissioners of the county as to the terms and manner of its use, as provided in § 3283, Revised Statutes, is entitled to compensation for its appropriation, and may compel the company under the provisions of § 6448, Revised Statutes, to condemn and pay for the same; and such right is not barred by the lapse of less than twenty-one years from the time of such occupation by the company: The limitation of two years contained in § 3283, applies only to incidental injuries to property on and adjacent to the roadway, occasioned by the location and construction of the railroad, and does not include the remedy for injuries to, or the taking of, the land itself.
    2. In a proceeding in the probate court , under § 6448, Revised Statutes, by a landowner to compel a railroad company to condemn and pay for land of his, which it has taken and appropriated to its own use, either pai’ty is, on demand, entitled to trial by jury on an issue of fact as to the ownership of the land. But where no demand is made, the question may be heard and determined by the court.
    3. In such proceeding the jurisdiction of the probate court is not defeated by a denial of the title of the plaintiff; and the court may on the demand of either party, proceed and empanel a jury for the trial of the issue, in any of the appropriate modes provided by statute for the empaneling of juries in the court of common pleas.
    (Decided May 23, 1891.)
    
      Eeeob to the Circuit Court of Mahoning county.
    The facts are stated in the opinion.
    
      Sine Clark, for plaintiff in error.
    I, It is alleged and admitted by the demurrer:
    That it was necessary in the location of its main line of road for the plaintiff in error to occupy the part of the public road in question: That the county commissioners were the public officers having charge thereof: That the plaintiff and the county commissioners, prior to entry thereon, agreed upon the manner, terms and conditions upon which the same was to be used and occupied: And that said part of said highway was and is actually occupied in the manner provided by said contract. And yet this action was not commenced within two, four, six or even ten years after the completion of said line of railway, under and in accordance with said contract.
    Here is every requirement of the statute filled, not in substance merely, but to the very letter also. And this the three lower courts have held did not constitute a defense to to the plaintiff’s claim. Railroad Company v. Mowatt, 35 Ohio St. 284; Terry v. Anderson, 95 U. S. 628; Cooley on Constitutional Limitations, 448 et, seq., 5th ed.
    II. The court erred in overruling the motion of defendant to dismiss the proceeding on the ground that, upon the issues raised by the answer, the defendants were entitled a trial by jury, and the probate court had not constitutional power to determine the same. The probate court, in eminent domain proceedings, is a court of special and strictly limited jurisdiction. Railroad Company v. Marshall, 11 Ohio St. 497; approved in principle, 45 Ohio St. 145.
    The proceeding was one in which the plaintiff could recover a judgment for money only — he could not recover the land. Platt v. Penn'a Co., 43 Ohio St. 229; Goodin v. Canal Co. et al., 18 Ohio St. 169. And such case, whatever form the pleadings may assume, or whatever the character of claim made, or of the proceeding in which it is made, is triable only to a jury. Revised Statutes, 5130; Alsdorf v. 
      Reid, 45 Ohio St. 653; Gunsaullus, Adm'r, v. Pettit, Adm'r, 46 Ohio St. 27.
    The defendant, by denial of title, denied the legal capacity of the plaintiff to institute such a proceeding — because it can be commenced only by the owner of land. Revised Statutes, 6448. And this question of legal capacity to sue when the judgment asked is for money, has been twice decided by this court to be triable to a jury. Presb. Soc. Gallipolis v. Smithers et al., 12 Ohio St. 248; Drea v. Carrington, 32 Ohio St. 595.
    The probate court had jurisdiction in such a proceeding as this instituted by the plaintiff, only when the plaintiff was owner of the land. Revised Statutes, 6448. When that ownership was denied, the right of the defendant to the trial by jury, of the issue thus made, at once arose, and the jurisdiction of the probate court under the above authorities was not sufficiently broad to determine the question, and proceed to a determination of the cause.
    The only alternative to the position that this is a proceeding in which a money judgment was sought, is that it was a question of title to specific real property, Railroad Co. v. Robbins, 35 Ohio St. 531, and this has always, to be sure, in Ohio, been one for trial to a jury only. Revised Statutes, 5130. And it is a right which the legislature is not competent to abridge by authorizing the probate judge to determine such a question. Gunsaullus, Adm'r, v. Pettit, Adm'r, 46 Ohio St. 27, and 45 Ohio St. 653, supra. This, with the guarantee of the 5th section of the 1st article of the Constitution of Ohio, “ The trial by jury shall be inviolate,” meaning, as determined in Willyard v. Hamilton, 7 Ohio 2, pt. 111, and Work v. State, 2 Ohio St. 296, that trial by jury as it existed at common law is the irrevocable right of every citizen of Ohio, “ a claim to which should be ever listened to with attention and' earnestness,” seems to us puts the right of the defendant to trial by jury in this case beyond question, and that the denial of it is not only error — it is a denial of justice.
    III. It may not be improper, however, to consider the claim made by the defendant in error in the lower courts, and on which these courts rested their decisions, viz.: That the trial and decision of the question of title was not necessary to the trial of the case had in the court below. This for the reason that Revised Statutes, 6442, provided that, when in trial of such a case there are diverse or conflicting claims, legal or equitable, to the real estate, or any interest therein, the jury or court shall not pass upon the case, in the proceedings for appropriation, but such claims shall be reserved for adjudication to the court of common pleas. , *
    A moment’s consideration of the statutes would seem sufficient to dispose of this position. Revised Statutes, section 6442, clearly does not provide for reserving the question of title when the controversy as to ownership is between the appropriating company and defendants, but extends only to cases where the appropriating company confessedly not being owner, there is a controversy amongst the persons by it acknowledged to be owners as to their respective interest in the lands. This controversy involves, necessarily, a question of title, which can be settled only by a jury or a court of equity, and, therefore, recognizing the principle for which we contend, the question is reserved to a court with competent constitutional powers to determine the same.
    The reasons for the construction we claim for the statute are as follows: Revised Statutes, 6448, prescribes the character of petition that must be filed in such a case. The allegations shall be (and in this are) 1. Ownership of land; 2. Use and occupation by the company; and 3. That the company has no legal or equitable right to the land.
    
      S. L. Qlarlce and W. S. Anderson, for defendant in error.
    I. The Lawrence Railroad Company does not claim any ownership, except by breath of counsel; does not allege this contract was in writing; does not allege that this contract was prior to the building of its road; does not allege that the terms and conditions of the so-called contract, were ever complied with; does not allege that the contract was complied with; does not allege that the contract had been assented to at a regular or special session of the county commissioners and entered in the minutes of their proceedings, something that is essential to the validity of every contract entered into by the county commissioners (Revised Statutes, sec. 878); does not allege that the county commissioners were the owners of said highway, or had any unusual authority over said highway; and does not allege any power or authority in the county commissioners to contract with reference to plaintiff’s land.
    County commissioners have only statutory powers. 10 Ohio St. 515, 520, 521. Their powers are strictly construed. 11 Ohio St. 188, 190 ; cited 21 Ohio St. 43 ; Commissioners v. Railroad Co., 45 Ohio St. 401, 403. The case of this same railroad company, The Lawrence Railroad Co. v. Sarah Williams, 35 Ohio St. 168, seems to settle the law in Ohio, that the owners of the fee in the highway may compel such appropriation, and the plaintiff’s interest in the highway is private property within the meaning of the constitution. These new uses of the street in the absence of any agreement with the adjacent landowner, or of an appropriation of the right to so use the street by a proceeding for that purpose, could not become complete until the same had been so used for the period of 21 years. Railroad Co. v. Hambleton, 40 Ohio St. 496, 502; Tootle v. Clifton, 22 Ohio St. 247-253; Valley Railway Co. v. Franz, 43 Ohio St. 623-625.
    
      Lawrence Railroad Co. v. Commissioners, 35 Ohio St. 1, also throws light upon the second and third defenses of The Lawrence Railroad Co., to which demurrer was sustained, as to the alleged contract with the county commissioners, and the action of the city of Youngstown thereunder, and also the finding of the jury that there was no such agreement; also (p. 30) that the statute of limitations does not apply in such a case.
    But it is claimed that the answer of The Lawrence Railroad Co. states a defense to the plaintiff’s claim perfect under Revised Statutes, sec. 3283. . What has sec. 3283 got to do with the plaintiff’s lawsuit ? And even if see. 3283 governed, the agreement must be such an one as the public officers and authorities could make, and made according to law. This section provides for the recovery of damages for injury done to property where the property itself is not taken, and is not applicable where there is a taking of property within the meaning of the constitution. It has reference entirely to a civil action brought in the court of common pleas, just as in the Mowatt case, referred to, 35 Ohio St. 284. In the Mo-watt case there was no taking of property ; it was an incidental injury, and of course was governed by sec. 3283. State v. Railway Company, 37 Ohio St. 157-170.
    II. This action was brought under sec. 6448 of the Revised Statutes under the notice given, the railroad company had the right, under the statute, to proceed, under chapter 7, to appropriate this land, and under sec. 6419 can publish notice and bring in any one having an interest in the property. . It does not claim the land so occupied or used had been appropriated and paid for, which is the material fact in the notice and the proceedings. The material facts in the petition would be the fact of such use or occupation by the corporation, and that it had no right, legal or equitable, thereto. It would seem that, under sec. 6448, the question of title did not properly arise. The question for the railroad company to determine, is has it appropriated and paid for the land specified in the notice, and described in the petition ? If it has not, then the .land must be owned by some person, and nowhere does it appear in this record that either of said railroad companies claims to own said land; if the railroad companies were in doubt as to the ownership, they had a right to commence their proceedings- and bring in any person who might have an interest in the land. Revised Statutes, sec. 6418, 6419.
    After the proceedings are commenced, as provided for in Revised Statutes, sec. 6448, the proceedings should be conducted to final judgment, as provided in chapter 8 of Revised Statutes.
    Corporations are entirely under legislative control. Railway Company v. Schultz, 43 Ohio St. 270, 274; Railway v. Railway, 30 Ohio St. 614; Railway Co. v. Sharp, 38 Ohio St. 150, 152.
    
      The act giving probate courts jurisdiction as to appropriation of property, is constitutional under sec. 8, art. 4, of the constitution. Giesy v. C. W. & Z. R. R. Co., 4 Ohio St. 308; 30 Ohio St. 604, 616; 34 Ohio St. 114, 121; R. R. Co. v. Marshall, 11 Ohio St. 497.
    But does the constitutional right of the trial by jury in any .event apply to this class of cases? Why is not the statute, under which this action is brought, the mean adopted, or mode of proceeding to enforce legal rights ? If so, it is well settled in Ohio, that these are at all times within legislative control. Railroad Co. v. Commissioners, 31 Ohio St. 338; Rairdon v. Holden, 15 Ohio St. 207, 211; Green Township v. Campbell et al., 16 Ohio St. 11, 17; Seely v. Thomas, 31 Ohio St. 301; Bullock v. Dorn, 44 Ohio St. 420.
    This court, in Skerrett v. Presbyterian Society, 41 Ohio St. 606, on page 630, where this very question of the right of trial by jury in an appropriation matter is considered, says, that sections 6442, 6443 and 6444, do not grant any right to a trial by jury; and under these sections why would the parties not be more entitled to the right of a jury than any case that could be raised under sec. 6448 ? Under sec. 6448 this court also says, that the sections under consideration only preserved existing rights as to mode of trial. If the legislature can so preserve existing rights as to mode of trial under theste sections, why cannot it do the same under 6448? Is there any difference, except under 6448 it is a railroad corporation that is to be compelled to obey the constitution and the laws of the state, and under 6442, 6443 and 6444 the money representing the value of the land is in litigation, while in the case at bar, properly speaking, it is only preliminary questions that are to be tried by the court. Why does not that decision in principle settle the jury question in this case?
    But why does not Revised Statutes, sec. 6400 settle the entire matter ? Under this section the probate judge may, in his discretion, order any question to be tried by a jury, if demanded. The defendants were very careful not to demand a jury, and did not want a jury. It was a jury that they were particularly afraid of. If they had demanded a jury the probate judge could have then exercised his discretion, and even then matters within his discretion would only be reviewable where his discretion had been abused. 1 Ohio St. 286; 9 Ohio St. 397.
    The record must show that a jury was demanded and re.fused, or constitutional objection does not apply. Klonne v. Bradstreet, 2 Handy, 74, 77. Again, the constitution only gives the right of trial by jury where the right of trial by jury existed at common law. Hagany v. Cohnen et al., 29 Ohio St. 82, 84; Schroyer v. Richmond, 16 Ohio St. 455, 467.
   Minshall, J.

On May 20,1885, Patrick O’Harra, Jr., filed a petition in the Probate Court of Mahoning county, against The Lawrence Railroad Company, and its lessee, the Pennsylvania Company, to compel the company, under the provisions of section 6448, Revised Statutes, to appropriate its track upon lands claimed to be owned by the plaintiff, and particularly described in the petition.

To this petition three defenses were interposed by The Lawrence Railroad Company:

First. A denial that the plaintiff is the owner of the land.

Second. That its railroad track was constructed in the year 1867 in a regularly laid out and established highway that had been used by the public for more than forty years prior thereto; that prior to the building of its road, it entered into a contract with the commissioners of Mahoning county, whereby it was granted the right to construct its road in said highway; that said highway was occupied by it in accordance with the terms of the contract, and is the land claimed by the plaintiff. Wherefore the defendant claimed that the action, not having been commenced within two, four, six, or even ten years from the completion of its line of railway, is barred by the statute. Section 3283, Revised Statutes.

Third. That subsequent to the building of said railroad, to wit: in the year 1868, the city limits of the city of Youngstown were extended, so as to bring within said city the part of its railroad track concerning which the plaintiff makes complaint. That after such extension of its limits, the city of Youngstown ratified and adopted the contract made between the defendant and the commissioners of Mahoning county, and brought an action upon the same, in the year 1872, against the defendant, claiming damages for non compliance with some of the conditions of the contract. That at the January term of the Court of Common Pleas for Mahoning county, for the year 1873, judgment was duly entered in favor of this defendant, and against the city of Youngstown, which still stands unreversed and unmodified. Wherefore, the plaintiff should not recover, for the reason that his alleged cause of action did not accrue within two, four, six or even ten years from the entering of said judgment.

The court sustained a demurrer to the second and third defenses, which is assigned for error.

After the demurrer was sustained, The Lawrence Railroad Company filed an amendment to its first defense, intended to make the denial of the plaintiff’s title more definite; and then moved to dismiss the proceeding on the ground that the title of the plaintiff to the land being put in issue, the court was without jurisdiction to hear and determine the same, as it was entitled to a jury trial upon the issue, which, as claimed, could not be had in that court. This motion was overruled, which is also assigned for error.

Thereupon the court, no jury being demanded, proceeded to determine the preliminary questions, and found that the plaintiff is the owner of the land; that The Lawrence Railroad Company in 1867 located and constructed its road upon it; that in 1871 the Pennsylvania Company took possession of it under a lease, and has ever since continued to use and occupy it; that the land has never been appropriated, and that the plaintiff is entitled to compel the defendants to proceed and appropriate and pay for the land. To which exceptions were reserved. •

It then appears from the record, that without waiving the benefit of any exceptions to the previous rulings of the court, to which the defendants had reserved exceptions, it was expressly agreed by the parties, that the empaneling of a jury should be waived, and that the amount of compensation due the plaintiff for the appropriation of the land, should be considered the sum of $900, and should stand for the verdict of a jury, as fully as if a jury had been empaneled and returned a verdict for that amount.

A motion for a new trial was then made, overruled, and a bill of exceptions taken and made a part of the record, and judgment rendered for the plaintiff, which was affirmed on error in the court of common pleas, and, also, by the circuit court.

The following assignments of error are relied on, for a reversal of the judgment in each of the lower courts:

1. The court erred in sustaining the demurrer to the second and third defenses of The Lawrence Railroad Company.

2. The court erred in overruling the motion to dismiss the proceeding on the ground before stated.

3. The court erred in finding the plaintiff to be the owner of the land.

The ground of the first defense is that the proceeding to compel an appropriation of the land in question was barred under the provisions of section 3283, Revised Statutes-. This section incorporates the provisions of the act in force at the time the company took possession of the land, and, under which, it has continued to occupy the same as a roadway. 54 Ohio Laws, 133, § 12, When it is necessary in the location of any part of a railroad to occupy any public road or street, it authorizes the railroad company and the public authorities having control of such highway, to agree upon the manner, terms and conditions upon which the same may be done, with the proviso that the company “ shall be responsible for injury done thereby to private property lying upon or near to such ground, which may be recovered by civil action brought by the owner before the proper court, at any time within two years from the completion of such track.”

It is apparent from its terms, that this case does not come within the provisions of this statute. It is not a suit for injuries done to any property lying upon or near tbe roadwaj1-, and to which the statute only by its terms applies; it is a suit brought by one claiming to be the owner in fee-simple of the roadway itself, to compel the company to appropriate and pay for the land as provided in section 6448, Revised Statutes. The fact that the road was occupied by the company under an agreement with the commissioners of the county, as provided in section 3283, does not in any way affect the right of the owner in fee of the soil of the road to be compensated for the appropriation of his property. The distinction is properly stated in Railroad Co. v. Williams, 35 Ohio St. 168, 172, where it is said, “in such case, the rights of the public, and the rights of the owner, are- entirely distinct; and the consent, express or implied, of one to the appropriation, would not bind or affect the rights of the other.” Where, however, the highway is occupied by the company under an agreement with the public authorities having control of it, the owner may compel the institution of proceedings for its condemnation under section 6448, Revised Statutes. Railroad Co. v. Robbins, 35 Ohio St. 531; Railroad Co. v. Williams, supra. The remedy in such case is a substitute for an action to recover the possession, and we fail to perceive why it should be barred in any shorter period than an action for such purpose; particularly, as it would seem, that when a highway has been taken possession of by a railroad company under an agreement with the public authorities, a proceeding to compel condemnation is the only remedy of the landowner. Railroad Co. v. Robbins, supra.

It would have been entirely competent for the legislature to have limited the right of a landowner to two years, in which to compel a condemnation of his property in a case like this; and it would also have been an easy matter to have done so, if such had been the purpose; but, under a well settled rule of construction, the employment of language which does not include the landowner, excludes any such purpose as to him on the part of the legislature.

The ground on which the third defense is based, seems far fetched. How the landowner could be affected by the result of a suit between the Railroad Company and the city of Youngstown, and to which the landowner was not a party, is not readily perceived. The court did not, therefore, err in sustaining the demurrer to each of these defenses.

As to the jurisdiction of the court: The claim here made is, that, where the company denies the title of the landowner, the court is without power to determine the issue, and must dismiss the proceeding, on the ground that an issue of fact as to title can only be determined bjr a jury, if demanded by either party, which, as claimed, cannot be had in the probate court.

It is quite clear a probate court may be clothed with such jurisdiction bj1- the legislature. It is declared by the constitution to be a court of record; that it shall have jurisdiction in various matters peculiar to a probate court, and finally, “ such other jurisdiction in any county or counties, as may be provided by law.” Sections 7 and 8, article 4, constitution. The last clause has been held to be enabling and not restricting ; and that what may be conferred on a probate court in one or more counties, may, by a general law, be conferred on it in all the counties of the state. Giesey v. Railroad Company, 4 Ohio St. 308-320. So that under the constitution the probate court has capacity for receiving jurisdiction quite as great as that of the coui’t of common pleas. It is not a court of general jurisdiction; but that is because such powers have not been conferred on it by statute as have been conferred on the common pleas. So that the question here is, not what capacity has been given the probate courts of the state by the constitution, but what jurisdiction has been conferred on them in the several counties of the state, by the legislature.

Section 6448, Revised Statutes, provides, in substance, that when any incorporated company of this state, clothed with the power of eminent domain, is occupying the land of any person, that has not been condemned, or is not held under an agreement with the owner, the owner may, by filing a petition in the probate court, compel the company to condemn and pay for the land. There can be no question but that the legislature intended by this section to clothe the probate court with power to hear and determine all questions connected with the proceeding — the title of the claimant to the land, as well as the compensation to be paid for its use. It could not have been the intention of the legislature that the jurisdiction of the court to hear and determine the matter, should be made to depend upon the kind of answer the company might make, irrespective of its truth. If that were so, it would amount to an anomaly in procedure, for the power to hear and determine is of the essence of all jurisdiction.

But if, in the trial of the case, an issue of fact may arise that can only be determined by a jury, should it be demanded by either party, then, in order that it may be said that the court has jurisdiction, it must appear that it is also clothed with power to empanel a jury to try the issue ; otherwise its jurisdiction is defective, and cannot be said to exist; and it would seem that there cannot be much doubt that such would be the right of either party, in a proceeding to compel the appropriation of land by a railroad company. The party instituting the proceeding must be the owner of the land, or of some interest in it. If this be denied, the issue to be tried would be the same as if a suit had been brought to recover the possession, in which either party is entitled to a jury upon any issue of fact arising in the case. The change in the remedy from a suit to recover the possession to a form of proceeding in which the value, instead of the land, is recovered, should not be held to deprive either party of the mode of trial to which he would have been entitled, if the suit had been to recover the possession, instead of the value of the land. Hence the question in the case seems narrowed to the inquiry, whether the probate court may, when the title of the landowner is denied by the company, empanel a jury to try the question of fact so made: For we cannot accept the suggestion, as a solution of the difficulty, that such issue may be reserved for trial in the common pleas, in analogy to the provisions contained in section 6442, Revised Statutes, where, in a proceeding commenced by the company, it may be done, if there are diverse and conflicting claims to the real estate sought to be appropriated.

No express provision on the subject is to be found in the procedure provided by statute for the probate court; indeed the special rules of procedure provided for this court, are quite limited, because, by section 6411, Revised Statutes, all the provisions of law governing civil proceedings in the court of common pleas, are made applicable to the probate court, where there is no special provision on the subject applicable to that court. Again it is provided in section 537, Revised Statutes, that the probate judge shall, in the exercise of the jurisdiction conferred on his court, have the same powers and be governed by the same regulations as are provided by law for the courts of common pleas, and, by section 539, it is made his duty to issue all process and notices, not contrary to law, “ necessary and proper to carry into effect the powers granted to him.”

Now, various methods are provided by statute for empaneling juries in the court of common pleas. Thus the parties may under section 5185 have a struck jury, and under section 5168 special juries may be empaneled by the court. We see no reason why either of these methods for obtaining a jury might not be adopted, under the provisions above referred to, for the purpose of obtaining a jury, if necessary, in any proceeding in the probate court, where there is no special provision applicable to the case. In such case any order which it would be necessary for the common pleas to make in the empaneling of a struck jury or a special jury, may be made by the probate court, because necessary to carry into effect the powers granted it in the trial of an issue on which the parties are entitled to a jury.

The power of the probate judge to empanel a jury, irrespective of special provisions, is recognized in section 6400, Revised Statutes. He is there given a discretion in any civil matter to order the question to be tried by a jury. The conferring of the discretion implies power in the judge to empanel a jury: and, if he may empanel a jury where he has a discretion, he may, by adopting the same method, empanel it where the rights of the parties make it his duty to do so. This provision accentuates, as we think, the construction placed on the sections above referred to; for it can hardly be supposed that the legislature would have conferred a power of this kind, without making some provision for its exercise; and no special provision was made for empaneling a jury, for the reason, doubtless, that, in its view, ample provision therefor was to be found in the provisions for the common pleas, made applicable, as above shown, to the probate court.

The court then did not err in refusing to dismiss the proceeding on the denial of the plaintiff’s title; and, as no jury was demanded, it did not err in proceeding to hear and determine the question of the plaintiff’s title. This it could do where no jury was demanded. Trial by jury cannot be said to be denied where it is not demanded.

It is also claimed that the court erred in finding the plaintiff to be the owner of the land. This is a question of fact, and it is sufficient to say here that there was evidence of a very satisfactory nature tending to support the claim.

Judgment affirmed.  