
    Kramer v. The Toledo & Ohio Central R. R. Company.
    
      Jurisdiction — Proceedings in probate court to appropriate lands— Section 6448, Rev. Stat. — Court need not find facts before impanelling jury — furisdiction in error of circuit court — Section 6709, Rev. Stat.
    
    1. Jurisdiction of a suit to compel the appropriation of lands of which a railroad company has taken possession without compensation or an agreement with the owner is conferred upon the probate court by section 6448, Rev. Stat.
    2. The facts which entitle the owner to maintain such suit, being issuable and subject to determination in the exercise of the jurisdiction so conferred, need not be found by the court before impanelling a jury.
    3. The provisions of section 6709, Rev. Stat., conferring upon the circuit court jurisdiction in error and defining the mode of its exercise, peremptorily require that court to pass upon all the errors assigned.
    (Decided November 26, 1895.)
    Error to the Circuit Court of Crawford county.
    . The plaintiff in error filed his petition in the probate court, alleging in substance that the defendant is a corporation owning a line of railway which extends through the city of Bucyrus; that on or about February 9, 1890, it laid upon South Railroad street in said city a track for the carriage of freight from its main line to certain shops in said city, and changed the grade of the street; that the plaintiff is the owner of a tract of land lying along said street, and fronting the portion thereof so occupied and embracing the street itself subject only to the right of the public to the use of the street; that his dwelling house and other structures are upon said lands; that the defendant so took possession of said street and laid its track thereon without appropriation or compensation and without his consent; that more than ten days before the filing of said petition he served notice in writing on the company to proceed under the statute to appropriate said lands and street, and that it failed to comply with such notice; and praying that such proceedings might be taken as are authorized by law to appropriate said lands and street and to compensate him therefor. A summons issued upon the petition was duly served upon the company. The defendant answered denying the plaintiff’s title, and alleging that the title to the street was in the city of Buey rus, and that the occupation of the street for the purpose complained of was pursuant to an agreement between the city and the company. The following entry was made in the probate court: “Thiscause now coming on further to be heard, and being submitted to the court upon the evidence produced, the court find that the defendant has been duly served with process and is properly before the court, and further find that said defendant is a corporation, as averred in the petition herein, and that it has the legal right to make the appropriation prayed for in the petition, and that the same is necessary, and that the said defendant is unable to agree with the plaintiff as to the compensation to be paid for the property sought to be appropriated herein. It is therefore ordered that to assess compensation for said property herein sought to-be appropriated, a jury be impanelled according to law, and that said jury convene the 5th day of June, 1890, at 9 o’clock A. M., which time is hereby-fixed for the impanelling of the same.”
    
      A jury was impanelled and a trial had, resulting in a verdict for the plaintiff. A motion for a new trial was overruled, and judgment entered upon the verdict.
    Upon the trial numerous exceptions were taken by the defendant to the admission and exclusion of evidence, to the instructions given and to the refusal of the court to give instructions requested; and, grounds stated in the motion for a new trial were, that the verdict was contrary to the weight of the evidence, that the damages were excessive, and that the court was without jurisdiction. A bill of exceptions was taken containing all the evidence offered.
    A petition in error was filed in the court of common pleas, alleging as errors the several rulings to which exceptions were so taken, and the overruling of the motion for a new trial.
    A judgment of affirmance being entered in the court of common pleas, the same errors were assigned in the circuit court, where the judgment of the court of common pleas was reversed ; the portion of the entry of its judgment following such reversal being:
    “And this court proceeding to render the judgment the court of common pleas should have rendered, find there is manifest error in the record and judgment of the probate court in this, to-wit:
    “Said probate court erred in proceeding to impanel a jury and to try said case without first finding- the facts required under section 6448, Rev. Stat.j to confer jurisdiction on said probate court to impanel a jury and to try said cause.
    “And this court reverses said judgment of the probate court at the costs in error of said Henry Kramer, and sets aside the verdict therein rendered for the want of jurisdiction in said probate court to render said judgment under the facts as to jurisdiction apparent from the record of said probate court, and adjudges the costs of the proceedings in error, in common pleas and circuit court against said Henry Kramer. And this court passes upon no other of the assignments of alleged error in this case.
    “It is therefore ordered that this case be remanded to the probate court for further proceedings in accordance with law, and to the court of common pleas for execution of the judgment for costs, and that special mandates be sent to each of said courts to carry these orders into effect.”
    
      L. G. F&ighner and S. JR. Harris, for plaintiff in error.
    The sole ground of reversal of the case at bar in the circuit court, was that the probate court erred in proceeding to impanel a jury to try said ease without first finding the facts required under section 6448, Revised Statutes, to confer jurisdiction on said probate court to impanel a jury to try said case. Section 6448 may be examined in vain for the facts required to be first found by the probate court before proceeding to impanel a jury to confer jurisdiction upon such court.
    The defendants, by their answer, admit each and every allegation in the petition contained, with the modification that the owners of the land upon which said South Railroad street is located, deeded the same to the village of Bucyrus for street purposes.
    A failure to deny a material allegation is an admission of it and. the admission is conclusive evidence of the fact admitted. 64 Mo., 165.
    The answer shall contain a general or specific denial of each material allegation of the petition controverted by the defendant. Revised Statutes, section 5070. Every material allegation of the petition not controverted by the answer shall for the purpose of the action be taken as true. Revised Statutes, section 5081.
    The answer of defendant setting forth that plaintiff-did not own any interest in the street aside from the public is wholly frivolous. The admission that plaintiff is an abutting lot owner concedes to plaintiff, in the language of the supreme court, a peculiar interest in the street which neither the local nor general public can pretend to claim a private right in the nature of an incorporeal hereditament legally attached to his contiguous grounds and his erections thereon, an incidental title to certain facilities and franchises assured to him by contract and by law and without which his property would be of little value. This easement appendant to the lot, unlike any right of. one lot owner in the lot of another, is as much property as the lot itself. Street Railway v. Cumminsville, 14 Ohio St., 547; Railway Company v. Lawrence, 38 Ohio St., 41; Crawford v. Village of Delaware, 7 Ohio St., 459.
    It is immaterial whether the fee is vested in the city or in the abutting owners. The city held the property for the purposes of streets only, and the defendant could claim from the city only such rights in the street as the city held. The grant made by the city to the defendant of the right to use the street for railroad purposes is not a bar to plaintiff’s action. The right of access to a street is an individual right and not a public right and the land owner in claiming damages for being deprived of it, is complaining not of a public but a private nuisance. The state consent would not empower a railroad company to cut off an adjacent land owner from convenient access to the street. 18 Ohio St., 123; Cooley on Torts, 616; 14 Ohio St., 623; 38 Ohio St., 45; 40 Ohio St., 496; 101 N. Y., 98; 1 O. O. C., 558.
    The probate judge was authorized by section 6421 to proceed to impanel a jury to try said case, by first finding- the following facts required under section6420, Revised Statutes, to confer jurisdiction on said probate court to impanel a jury to try said case, to wit:
    1. The existence of the corporation.
    2. Its right to make the appropriation.
    3. Its inability to agree with' the owner, and
    4. The necessity for the appropriation.
    These are the jurisdictional questions to be first found which authorize -the probate court to proceed to impanel a jury to try said case and to confer jurisdiction.
    The supreme court has held that the probate courts of this state are in the fullest sense courts of record. They belong to the class whose records import absolute verity, that are competent to decide on their own jurisdiction and to exercise it to final judgment, without setting forth the facts and evidence on which it is rendered. Shrover v. Richmond & Stokely, 16 Ohio St., 455; Heckman v. Adams, 50 Ohio St.
    It is provided in section '6437 that either party may file a petition in error in the court of common pleas, of the proper county, within thirty days from therendition of the final judgment in the probate court and the proceedings in error shall be conducted as in civil actions. King v. Penn, 43 Ohio St., 57; Ludwig v. Hills, 46 Ohio St., 373; Railway Co. v. Wick, 35 Ohio St., 247.
    
      A. W. Scott and Finley <& Bennett, for defendant in error.
    The petition provided for under section 6448 is not an ordinary petition under the Code, but is a petition provided for by a special section of the statute, which requires that it must contain the following facts:
    1. The fact of such use or occupation by the corporation.
    2. That the corporation has no right, legal or equitable in the premises.
    3. That the notice provided for, has been duly served.
    4. That the time of limitation under the notice has elapsed.
    5. That the land has not been appropriated and paid for.
    6. That the land is not held by any agreement in writing with the owner thereof.
    7. That the corporation has no right, legal or equitable, thereto.
    8. That plaintiff is the owner of the land sought to be appropriated.
    Are the above facts jurisdictional, and can a court proceed unless those facts exist, and is it necessary for the probate court to find them to exist before it can proceed to take jurisdiction and impanel a jury? We think the answer must be- in the affirmative, and' the circuit court likewise thought so and answered in the affirmative.
    It is clear to us that under sections 6420 and 6421 of the Revised Statutes, and under 6448 and 6449, before the probate judge has authority to order a jury, he must first determine the foregoing jurisdictional questions, and that unless it is done and the record must speak whether it is done or not, he had no jurisdiction to impanel a jury, and that all proceedings in the absence of such finding and determination, including the verdict of the jury, and judgment of the court, are wholly without jurisdiction and void.
    By examination of the record of the probate court it will be seen that none of the foregoing jurisdictional facts were found by the court. Spoors v. Coen, 44 Ohio St., 497.
    The street having been occupied and taken by the defendant corporation under and by virtue of an agreement with the city council of Bucyrus, if the city owned the fee of land as the answer alleges it did, the plaintiff would have no right of action to have it appropriated, because two facts must exist as a condition precedent to his right to have an appropriation, viz.:
    1. That he is the owner of the fee.
    2. And that possession is not held by any agreement in writing with the owner thereof.
    But if the city did not own the fee, but granted the right to lay down the track by virtue of its control of the streets of the city, then plaintiff could elect either to have his interest in the street appropriated, or bring an action under section 3283 to recover damages to the adjacent lot, or rather abutting lot; but in an appropriation proceeding he could not have both. Railroad Co. v. Robbins, 35 Ohio St., 531; Flichman v. Railway Co., Superior Court of Cincinnatti, page 302 of Law Bulletin, No. 19, 1892.
   Shauck, J.

Although the land of which the company took possession is a public highway, its occupation for the purposes alleged in the petition, imposed upon it an additional servitude for which the plaintiff, as owner of the fee, is entitled to compensation; and his right in that regard, the company having taken possession without appropriation and without the owner’s consent, may be enforced under the provisions of section 6448, Revised Statutes. Railroad Co. v. Williams, 35 Ohio St., 168; Rodlroad Co. v. O'Harra, 48 Ohio St., 343. The petition fully conforms to that section, and alleges the service of the preliminary notice therein required. It, therefore, states a cause of action.

The principal contention of counsel for the defendant in error is that the probate court was without jurisdiction to impanel a jury for the assessment of compensation and to render a judgment upon the verdict because it did not first find all the facts which under section 6448 constitute the plaintiff’s cause of action. The finding which the court made is conformable to the provisions of section 6420, which relates to the proceedings to appropriate voluntarily instituted by the company before it takes possession of property. In proceedings of that character the statute contemplates that the company shall be found to be vested with the power to exercise the right of eminent domain, and that the condition to its exercise shall be first found. The provision is in favor of the property ' owner. There is no such requirement in regard . to proceedings under section 6448, nor are there analogous reasons for such requirement. In cases of this character the probate court derives its jurisdiction from the unconditional terms of the statute, which constitutes it a court with full jurisdiction for the purposes indicated. The ■ facts which counsel insist the court should have .found as a condition to its jurisdiction, are issuable facts to be determined in the exercise of the jurisdiction which the statute confers.

It is true that in Railroad Co. v. O'Harra, the probate court did find the facts which under section 6448 constitute the cause of action, but they were found after issue joined, ‘ no jury being demanded.” Undoubtedly the issues joined are triable to a jury, and the contention of counsel is, in effect, that they should be tried twice. We do not find in the statute or the reason of the law, or in the cases cited any support for the conclusion reached by the circuit court.

Counsel for the plaintiff in error further contend that the circuit court erred in refusing to pass upon all the errors assigned in the petition filed in that court. Section 6709, Revised Statutes, relates exclusively to the jurisdiction of the circuit court in error and to the manner of its exercise. It provides, that “all errors assigned in the petition in error shall be passed upon by the court, and in every case where a judgment or order is reversed and remanded for a new trial or hearing, the circuit court shall, in its mandate to the court below, state the error or errors found in the record upon which the judgment of reversal is based.” The requirement of this section could not be made clearer by comment. When the record permits the presumption, as it always should, that the circuit court has complied with the section, an inference of much importance, not only in this court, but in courts inferior to the circuit court, arises. That inference is that all assignments of error in the circuit court, except those which are stated as the basis of a judgment of reversal, are adjudged to be not well taken.

Important rights of litigants are secured by this provision. Practically, the circuit court is the court of last resort for the determination of the weight of the evidence. If it should fail to pass upon an assignment of error founded upon that ground, and reverse upon other grounds, a most important right of the plaintiff in that court would be put in peril. For, if this court upon a petition in error, should reach a different conclusion upon the questions on which the circuit court bases its judgment of reversal, it would be its duty to reverse the judgment of the circuit court and affirm that of the common pleas; and it would result that the plaintiff in error there would be conclusively denied the right, clearly conferred by law, tb have the judgment of the circuit court upon the weight of the evidence.

The subject of a suit in error is the judgment whose reversal is sought. However numerous may be the grounds upon which the validity of the judgment is challenged by the assignments of error, the suit is single and entire. This statute wisely protects both parties from the evils of expense and delay that would result from having the suit tried piecemeal. If the action of the circuit court in this case is to be approved, there may in every error ease brought there be as many judgments as there are assignments of error, and every judgment so rendered be the subject of a separate petition in error here. The performance of the duty here enjoined would not only secure important rights of both parties, but afford an attractive example of judicial obedience to a statute about whose meaning there is no difference of opinion.

We cannot infer that the circuit court conformed to the requirement of the statute in this case, since its record affirmatively shows that it did not. It is true that if the assignments of error not passed upon are not well taken, the plaintiff in error should now recover a final judgment. One of those assignments, however, requires a determination of the weight of the evidence, which, as is well known, this court does not consider. These assignments were not waived, and, so far as the record discloses, the action of the court in refusing to pass upon them was of its own motion. Due regard for the right of the company to have a determination of all the errors assigned in its petition in the circuit court requires that, upon a reversal of its judgment for the error first noticed, the cause be remanded to that court with instruction to pass upon all the errors assigned.

Judgment accordingly.  