
    Lawrence Railroad Company v. Commissioners of Mahoning County.
    1. The legislature can not create a liability for acts as to which there was no liability when they were committed; hut where a remedy exists, the legislature may change it, as well as to acts theretofore as those thereafter done.
    2. The act of March 7, 1873 (70 O. L. 53), which provided a new remedy against those who place obstructions in public highways, applied as well to existing obstructions as to those subsequently placed therein.
    3. A railroad company wrongfully laid its track in a public highway, and' after it had continued the obstruction more than six years, an action was brought against it under the act of 1873. Held, that neither the limitation of four years, nor that of six years, was a bar to the action.
    4. Under the act of 1873, relating to obstructions in highways, the measure’ of damages, ordinarily, is the cost of removing the obstruction and restoring the highway to its former condition.
    5. Where an obstruction is created in a state or county road, and the corporate limits of a municipal corporation are extended over a part of the' road so- obstructed, the county commissioners can not maintain an action for the obstruction of that part of the highway which is within the limits of the corporation.
    6. An action by the county commissioners, brought for the obstruction of a county road, was pending at the time of the passage of the act of March 7, 1873; and on May 81, 1873, the court, by consent of parties, made an order that the cause should stand as though commenced on that day. Held, that the action must be regarded as one prosecuted under the act of 1873.
    Error to the Court of Common Pleas of Mahoning county. Reserved from the district court of that county.
    July 20, 1872, the city of Youngstown commenced an action in the Court of Common Pleas of Mahoning county, against the Lawrence Railroad Company, a corporation under the laws of this state. At the January term, 1878, of that court, the commissioners of that county were substituted as plaintiffs. At the May term, 1873, the following order was made by that court and entered on its journal : “ This cause came on for hearing upon demurrer to the petition filed herein, and was submitted to the court, who, upon due consideration, overruled said demurrer, to which defendant by counsel excepts; and thereupon, by consent of parties, the plaintiffs have leave to amend and file new petition within forty days from court, defendant to answer in thirty days thereafter, plaintiff to reply iti twenty days thereafter, and hereafter this cause to stand as though commenced at this date, to wit, May 31, 1873; and this cause continued.”
    An amended and second amended petition was filed, the latter on August 8, 1874. In that it is alleged as follows :
    “ That in the year 1810 a public road and highway, commencing at or near to the point where East Federal street in the city of Youngstown, county and state aforesaid, crosses Crab creek and extending in an easterly direction therefrom, sixty-six feet in width, to and beyond the eastern boundary line of the township of Youngstown, county and state aforesaid, was duly and legally laid out and established by the proper authorities, and that the same was used and occupied by the public as such road and highway from said year until possession was taken thereof, as hereinafter set forth by said defendant, and that during said time said road and highway was graded, drained, and kept in good condition for the convenience and use of the public as such road and highway.
    “ That some time during the year 1866, the exact date said plaintiffs are now unable to give, said defendant wrongfully and without lawful authority, entered upon and took possession of said road and highway between said Crab creek and llazelton in said township, being a distance of about one and one-half miles, and in some places thereon dug up and removed the earth and soil therefrom, and in other places filled in for the purpose of causing the surface thereof to conform to the established, grade of its railroad and built and constructed its locomotive railroad thereon, and thereby obstructed said road and highway and rendered public travel upon all that portion thereof covered by said railroad absolutely impassable and upon that portion not covered thereby difficult, dangerous, and very unsafe, and that in consequence of the wrongful and illegal acts of said defendant as above set forth, said road and highway has been rendered very much less convenient and useful to the public than the same was previous to the commission thereof, and said defendant has ever since said year 1866 held, and now holds, possession of said road and highway between said points, and has ever since said year last mentioned kept and maintained, and now keeps and maintains, said railroad thereon, to the damage of plaintiff’s in the sum of one hundred thousand dollars, for which said plaintiffs ask judgment against said defendant.”
    The first, fourth, and fifth defenses in the answer were as follows:
    “ Eirst defense. That it is true defendant did, in the year 1866, enter upon and locate, and in that year, or the early part of the year 1867, did construct a portion of its railroad along and upon the highway in said petition mentioned ; that the same is a part of its main line of railroad, and which by its charter it was authorized to locate, construct, and maintain; and that the said entry upon said highway, and the location and construction of said railroad thereon, were done with the consent and knowledge of the commissioners of Mahoning county, Ohio, predecessors of the persons now acting as such commissioners.”
    “Eourth defense. Eor a fourth defense, defendant denies that the care, custody and control of all of said highway, or the title thereto, belongs to or is vested in plaintiffs. On the contrary, defendant avers that a large extent of said highway is, and for many years has been, within the corporate limits of said city of Youngstown, as a street thereof, the title to which is vested in said city, and the care, custody,' and control of which belongs to and is vested in said city.”
    “ Eifth defense. Eor a fifth defense defendant says that plaintiff ought not to have and maintain their action in said petition set forth, because it says that it located and constructed its said railroad along and upon said highway, under and by virtue of written contracts with the commissioners of Mahoning county, Ohio, and wherein said commissioners and defendant agreed upon the terms and conditions upon which defendant should use, occupy, and enjoy, for the purpose aforesaid, said highway; and whatever rights plaintiffs may have against defendant by reason of its railroad being located and constructed upon said highway, are dependent upon the terms of said written contracts.”
    The defendant also set forth in its answer'that the action was barred by the statute of limitations of four years and six years. The answer also contained a denial that the obstruction was to the extent claimed in the petition.
    By the reply the plaintiff admitted that the company located the main line of its road on the highway described in the petition, but denied all other allegations in the answer.
    On the trial at the January term, 1,876, the evidence was conflicting upon the question whether the highway had been entered upon or occupied by the company with either the verbal or written consent of the commissioners.
    In November, 1868, the corporate limits of the city of Youngstown were so extended as to include part of the road so obstructed by the defendant.
    The whole highway claimed by the plaintiffs to be occupied by the company, including as well that part within as that portion beyond the corporate limits, is twelve acres, being a track sixty-six feet in width and one and a half miles in length.
    On the trial, the plaintiff asked Montgomery, a witness, this question: “ State to the jury, what, in your judgment, was the value of the easement in this twelve acres of land, assuming that to be the quantity before the Lawrence Railroad was located upon it, to the public?” Answer: “I suppose it was $15,000.” Question: “ State what the same easement was worth after the Lawrence Railroad was- located and constructed along it, to the public, as a road and right of way between the same points ?” Answer: “ Taking into consideration the mode in which it is left by the railroad, I should say it might be worth $3,000 or $4,000.” Exception was taken to the introduction of the evidence. The court’ charged the jury, among other things, as follows:
    “ On the question of damages you will disregard the claim of counsel, that the rights of individuals owning land along the highway in question, are to be protected in this case. There being but two ways in which the public can become dispossessed of their easement in this highway, namely: either by contract with the commissioners or by appropriation proceedings, and unless the proof shows that by one or the other of these methods the defendant has acquired this easement, the public still retain it; and as the public, in such circumstances, have a complete remedy at law for compensation for that easement so taken by the defendant, the commissioners can not recover damages except for the extent to which the public have been inconvenienced in the use of said highway, from the time the defendant laid its track on said highway down to November, 1868, at which time the west half of said highway became annexed to the city of Youngstown, and for the extent to which the public have been inconvenienced in the use of the east half of said highway to the present time.”
    The jury returned a verdict for $3,500, and the court overruled a motion for a new trial, and entered judgment on the verdict. A bill of exceptions, in which all the evidence and the charge of the court are set forth, was taken by the defendant. The district court, to which the case was taken bn error, reserved it for the decision of this court.
    The act of 1853, “ establishing boards of county commissioners, and prescribing their duties ” (51 Ohio L. 421; 3 Curwen, 2204), was amended in 1873 (70 Ohio L. 53; 4 Sayler, 2866), as follows:
    “ Sec. 17. That in all cases where any bridge on any state or county road, or public building, the property or under the control or supervision of any county within this state, shall be injured or destroyed, or where any state or county road or public highway has been, or shall be, injured or impaired, by placing or continuing therein, without lawful authority, any obstruction, or by the changing of the line, filling up or digging out of the bed thereof, or in any manner rendering the same less convenient or useful than it had been previously thereto, by any person, persons, or ^corporation, such person, persons, or corporation shall be subject to an action for damages, and the county commissioners of the proper county are hereby authorized to sue for and recover of such person or persons, or corporation, so causing or having caused such injury or impairment, such damages as shall have accrued by reason thereof, or as shall be necessary to remove such obstruction or repair such injury, and the money so recovered shall, when col-’ lected by the proper officer, be paid into the treasury of the proper county, and shall be appropriated by the commissioners thereof to repairing such bridge, building, or road, or removing such obstruction, as the case may be; provided, the court may, in case of a recovery, make such order as in its discretion may be deemed necessary to repair the injury, or remove the obstruction complained of; and provided, further, that the statutes of limitation shall not run or be deemed to have run in favor of any person or corporation so obstructing or continuing an obstruction in, or causing injury to, or having done the same, respecting any such road or public highway.”
    
      J. T. Brooks, for plaintiff in error.
    
      Wilson, Jackson & Wilson, and Jones & Murray, for defendants in error.
   Okey, J.

The court properly instructed the jury that there could be no recovery on the issues as made, if the railroad company occupied the highway under an agreement with the commissioners. 54 Ohio L. 133. The jury must have found that there was no such agreement. We are not prepared to say that the court below erred in overruling a motion for a new trial, based on the ground that the finding was against the evidence. The rule on the subject is correctly stated in McGatrick v. Wason, 4 Ohio St. 566, 575. Nor does the fact that some of the commissioners saw the obstructions placed in the highway, but made no objection, afford any ground for saying that the plaintiffs were estopped.

The seventh section of the act of 1853, repealed and reenacted with changes (65 Ohio L. 35; 74 Ohio L. 134), seems not to provide for such a case. There is manifestly an error in the seventeenth section of the act of 1853, as originally enacted. Whether it occurred in the enrollment, I know not. We need not undertake the task of interpreting the enactment. This action is against a corporation for unlawfully placing an obstruction in a county road, and the rights of the parties must be determined under the seventeenth section of the original act, as amended in 1873.

The legislature, it has been said, can not create a liability for acts as to which there was no liability when they were committed. Const., art. 2, § 28; Little Miami R. R. Co. v. Comm’rs Greene County, 31 Ohio St. 338; and see cases collected in 70 Ohio L., Appendix, 69. But “ a party has no vested right in a defense based upon an informality, not affecting his substantial rights.” Cooley’s Con. Lim. (4 ed.) 461. At least, it is perfectly clear that if a liability exists, the form of the remedy may be changed, or the existing provisions supplemented by other legislative enactments. Such an obstruction as that created in this case is, by the act of 1857 (54 Ohio L. 130), re-enacted in 1877 (74 Ohio L. 240), declared to be a nuisance, and the person erecting or maintaining it is liable to indictment, chargeable with the expense of removing it, and moreover liable to the suit of any person injured by such nuisance in his health, comfort, property, or the enjoyment of his estate. And see the act of 1868, 65 Ohio L. 21, § 29 ; lb., § 32.

It is clear, therefore, that for this obstruction there was, at the time it was created, a remedy provided by law; and we think the general assembly might well provide, as it did by the amendment of 1873, this new and additional remedy, and that the amended act applied to obstructions already created. Nor can the statute of limitations apply to such a case as this, for the reasons stated in the opinion in Little Miami R. R. Co. v. Comm’rs of Greene Co.

Considering further the construction which should be placed on this act, we hold that, as applied to the facts disclosed in this record, the measure of damages is the cost of removing the obstruction and restoring the highway to its former condition. "What the rule is in those exceptional cases, where such restoration would be almost, if not altogether, impossible, we need not determine. But it is clear in this case that evidence as to the value of the easement was improperly received; the charge to the jury was given on an erroneous basis as to the measure of damages; and the petition was not framed in strict accordance with a proper interpretation of the statute, though we do not hold that no cause of action is stated therein.

The obstruction was placed in the highway in 1866 and 1867. In November, 1868, the corporate limits of the city of Youngstown were extended over a considerable portion of the road so obstructed, aud that part of the road became a street in the city. The court charged the jury that, as to this part of the highway, the plaintiffs might recover for damages sustained from the time the obstruction was placed in the road until such annexation was made, and evidence was received, against the defendant’s objection, to prove such damages. In this the court erred. True, it was held in Wells v. McLaughlin, Butman v. Fowler, 17 Ohio, 99, 101, that the county commissioners might lay out, within or through a municipal corporation, a public highway. We do not decide that that may not still he done. But the municipal code of 1869 (66 Ohio L. 222, § 439), re-enacted in 1878 (75 Ohio L. 388), provided that “the council shall have the care, supervision, and control of all public highways, bridges, streets, avenues, alleys, sidewalks, and public grounds within the corporation, and shall cause the same to be kept open and in repair and free from nuisance.” . And see 66 Ohio L. 149, §§ 8, 199. ' Under the act of 1873, the damages recovered must be appropriated by the commissioners in repairing the road or removing the obstruction ; but as control of highways in the corporation is confided to the corporate authorities, the commissioner could not apply such moneys within the corporate limits. Hence, if an action for damages, sustained by reason of such obstruction within the corporate limits of Youngstown, can be maintained, the action must be prosecuted by the city, and the recovery of the plaintiffs in this case must be confined to injury to the road outside of the city limits.

By the order of May 31, 1873, the cause is to stand as though commenced on that day. The order appears to have been made by consent of parties, and no attempt has been made to set it aside or impeach it. Full effect must be given to it, and we think such effect is given when we hold that by force of it this action must be regarded as one prosecuted under the act of March 7, 1873.

Other questions have been discussed, but we do not think it is important to make any report of them.

Judgment reversed, and cause remanded for a new trial.  