
    Railroad Company v. Village of Belle Centre.
    
      Probate Courts — Jurisdiction—Records of import absolute verity-^-Eminent Domain — When property appropriated for a public use cannot betaken for another — When it may be — Municipal Corporations— Railway Companies.
    
    1. The prohate courts of this state are courts of record, competent to decide on their own jurisdiction, and exercise it to final judgment; and their records import absolute verity.
    2. The statute regulating proceedings instituted in the probate court by municipal corporations to appropriate real property for an authorized public use, confers on that court, power to decide when the service on the defendants is complete, and the parties are in court; and its decision on these questions cannot be collaterally inquired into.
    3. Where the record in such proceeding, shows that the court, after hearing the evidence, found that the defendants therein were duly notified according to law, of the time, place, and purpose of the application, a defendant on whom no service was had otherwise than by publication, will not be permitted, in a collateral proceeding, to draw in question the jurisdiction of the court, by proving that at the commencement, and during the pendency of the proceeding, he was a-resident of the state.
    4. It is a well established rule, that property already appropriated, in the proper exercise of the power of eminent domain, cannot be taken for another public use which will wholly defeat or supersede the former use, unless power to make such second appropriation be granted expressly, or by necessary implication.
    5. But land held by a eoi-poration, whether acquired by purchase or appropriation, which is not employed in, nor needed for the proper exercise of its corporate franchises, is not within the reason or operation of the rule.
    6. Municipal corporations, under the power conferred by section 2232, of the Revised Statutes, are authorized to appropriate for necessary public offices, or a prison, land of a railroad company, which is not needed, or used in the operation of its road, or the conduct of its business.
    (Decided March 31, 1891.)
    Error to the Circuit Court of Logan county.
    On the 30th of September, 1881, The Cincinnati, Sandusky & Cleveland Railroad Company, Edward Mains, and J. C. Mains, commenced their action in the Court of Common Pleas of Logan county, against the Village of Belle Centre, to enjoin the defendant from taking possession of certain real estate within its limits, under a proceeding theretofore had in the probate court, for the appropriation of the premises for the purposes of public offices and a prison for the village. The allegations and prayer of the petition are as follows:
    “ The said village of Belle Centre is a municipal corporation organized under the laws of Ohio, and situate in said Logan county. The Cincinnati, Sandusky & Cleveland Railroad Company is, and for ten years last past has been, a corporation organized under the laws of Ohio, owning the line of railroad and the real estate hereafter mentioned.
    In the year 1832, The Mad River & Lake Erie Railroad Company was created by and organized as a corporation under a special act of the legislature of Ohio, with full power and authority to construct a railroad from the city of Sandusky to the city of Springfield, in said state, and to acquire title to and hold all real estate requisite or convenient for right-of-way, depots, stations, side-tracks, turntables, etc., for the construction and convenient operation of said road.
    On the 12th day of June, 1846, Robert Mitchell and Robert D. Hemphill, being the owners of lot No. 4. in said village of Belle Centre, of which they were the proprietors, proposed to the said The Mad River & Lake Erie Railroad Company, to convey to it the said lot No. 4 in consideration that said company would locate and construct its line of railroad through and across the said village, and through, across, and upon said lot; which proposition the said company then accepted, and then located and constructed its line of road through and across the said village, and upon and across the said lot. In consideration thereof, the said Mitchell and Hemphill then conveyed to the said The Mad River & Lake Erie Railroad Company the said lot No. 4, as a place of depot forever. A copy of the deed therefor is in the record of the proceedings hereinafter mentioned. The said The Mad River & Lake Erie Railroad Company then accepted said lot and erected thereon a depot building with appurtenances for the operation of the said road, which ever since has been and now is maintained thereon.
    By judicial sale and reorganization under the laws of Ohio, and conveyances under the same, the title to all the said line of road, its real estate, right-of-way, and equipments, including said lot No. 4, passed to and is now vested in the said The Cincinnati, Sandusky & Cleveland Railroad Company.
    The village of Belle Centre, on the 6th day of August, 1881, filed in the Probate Court of Logan county, its application to condemn and appropriate for village offices and prison, a portion of the said lot No. 4. A copy of which application is hereto attached, marked ‘B,’ and made part of this petition.
    The plaintiff, said railroad company, was served with no process of notice of said application- as required by law; the only pretended notice being a newspaper publication, of which a copy is hereto attached, marked ‘C,’ and made part of this petition. On the said portion of lot sought to be appropriated a building and structure then was and still is standing, of which the said Edward H. Mains and J. C. Mains were and are joint owners each of the one undivided third part, and upon whom no notice whatever of the said application and proceeding was ever served, or caused to be served, by the said village or otherwise.
    Plaintiffs say that said portion of lot so sought to be appropriated was then and is part of said lot No. 4, upon which said depot buildings are standing and occupied, the said Edward H. Mains and J. C. Mains occupying said portion temporarily for a mere temporary purpose.
    On the 27th day of August, 1881, the said probate court wrongfully, and without any authority or jurisdiction, illegally made an order of appropriation authorizing and empowering the said village to enter upon and take possession of the said portion of lot No. 4, and erect and maintain thereon village offices and a prison on payment to the plaintiff, said railroad company, of $284.16 compensation for said portion of lot, and to one Charles Mains $100 for said structure. Under said illegal and pretended order, the said village is threatening to enter upon and take possession of said portion of said lot and said structure, and erect and maintain thereon village offices and a prison, and in addition thereto to erect and maintain thereon business rooms to be occupied as stores for general commercial business and trade; all of which it will do without authority, under said illegal order, to the great and irreparable damage of the plaintiffs severally, unless restrained by order of injunction from this court.
    The plaintiffs say, that the said portion of lot is neither indispensable nor necessary for the construction of said village offices and prison; that there are many other lots and parcels of land iii said village, severally suitable and convenient for such offices and prison, which the defendant can procure at reasonable price either by purchase or judicial appropriation.
    The plaintiffs say, that the said village is not, nor is its council, clothed with authority or power to condemn or appropriate said part of said lot; that said probate court had no authority or jurisdiction to entertain or hear said application, or to authorize proceedings under the same to condemn or appropriate any part of said lot for said purposes; that all its said proceedings are and will be null and void; but if permitted, will be a cloud upon, and may ripen into an occupancy inconsistent with plaintiff’s rights and title, and work the entire forfeiture thereof. During all the months of July and August, 1881, the said corporation plaintiff had and maintained its general office and place of business in the city of Sandusky, in the state of Ohio, constantly in charge of its proper officers, agents and clerks, and had and maintained its full organization and proper officers under the laws of and within said state, during all said time, and is not nor was a foreign corporation at any time.
    The plaintiffs, and each of them, therefore pray, that the said village, its agents and officers, may be restrained and perpetually enjoined from asserting any estate or exercising any right, under said order of appropriation, and from taking or maintaining possession of said part of lot No. 4; that the said order and judgment of appropriation be annulled; and that in the mean time a provisional injunction be allowed restraining them therefrom until the final hearing and for other proper relief. ”
    At the commencement of the action, a temporary injunction was allowed as prayed for in the petition, and afterwards, on the 5th of October, 1881, the plaintiffs filed the following supplemental petition, and obtained thereon, a further temporary injunction according to its prayer, viz.:
    “ The plaintiffs say that on the 30th day of September, 1881, they obtained an injunction and filed their petition in the above entitled cause restraining the said village, its officers and agents from erecting or maintaining any building or structure on the southeasterly part of lot No. 4 in said village, and from interfering with or molesting the structure now thereon standing. They now. eome and file this their supplemental petition against George Young, mayor of said village, Jefferson Wright, Lyman Dow, William Sicke, et al., members of the council of said village, and Thomas Nelson, Thomas Livingston and M. A. Smith, Jr., and aver against them, all and singular, the matters and facts alleged and averred in their said original petition as fully as if the same were herein set forth at large. They further aver that the said Nelson, Livingston and Smith wrongfully claiming to act under some pretended authority or contract derived from or had with the mayor and council of said village are contemptuously disregarding and violating the said order of injunction, and are now engaged in molesting and disturbing the said structure mentioned in the said original petition, and are digging and excavating the soil of part of said lot wrongfully, and are erecting thereon a structure as described and mentioned in their said original petition in violation of the court’s injunction and without any legal authority or right, and in contemptuous disregard of the authority and order of the said judge, and the court allowing said injunction, which, if permitted to continue will work an irreparable injury to these plaintiffs.
    They therefore pray that the said mayor of said village, and members of said village council, Thomas Nelson, Thomas Livingston, and M. A. Smith be made defendants, and be enjoined and restrained from further proceeding in the said digging, excavation, erection and molestation, on or about the part of said lot until the final hearing of their said original petition or until the further orders of the court; and from doing any of the acts which the said village is now restrained from doing by the said injunction.”
    The original defendant answered as follows:
    “Now comes said defendant and for answer to the petition and supplemental petition of plaintiff, denies each and every allegation therein contained excepting the allegation that defendant is a municipal corporation organized under the laws of Ohio, and situate in said county of Logan, and excepting the allegation that said defendant on the 6th day of August, 1881, filed in the probate court of said county its application to appropriate a portion of the real estate described in plaintiff’s petition.
    Defendant, for a further defense, says: 1. That part of said lot No. 4, in said village, sought to be appropriated for the purpose in the petition mentioned has never been and is not now used by said The Cincinnati, Sandusky & Cleveland Railroad Company or any other railroad company for depot purposes.
    That the depot building upon said lot is at the distance of 125 feet from the part of said lot sought to be appropriated as aforesaid: a plat of said lot and its surroundings is hereto attached marked ‘ A ’ and made part of this answer.
    That on the intervening space of 125 feet between 'said depot buildings and the part of said lot sought to be appropriated, there has for several years been, and now is, a building occupied with business rooms not in any way connected with the business of carrying on said railroad, and the part of said lot so sought to be appropriated has never been used, and will not be used by said railroad company in carrying on its business, and is not, and never will become necessary for the purpose of the business of said railroad company.
    That there is a structure standing on the part of said lot No. 4 sought to be appropriated, but the same was ere.cted since the plaintiffs had notice of the intention of said village to make its application for the appropriation of the same, and said structure was erected for the purpose and with the intent and design of preventing said defendant from making the said appropriation. That in said proceeding for appropriation, the said structure was valued at one hundred dollars, and the owners thereof refused to remove the same, and said defendant was compelled to take the same and pay said sum of |100 therefor, and proposes to permit to be used temporality, merely for business, only so much of said structure as for the present is not necessary to be used for the purposes for which the same was appropriated.
    That long before the beginning of this suit, defendant, after having paid into court the amount of compensation and damages assessed in said proceeding in the probate court of said county, in pursuance of the order of said probate court, took possession of said structure and the portion of said lot appropriated as aforesaid, and ever since has been, and now is in possession thereof. That prior to the commencement of this action, the village counsel of said village appointed a building committee, with full power to contract for the erection of the structure mentioned, and that on the 29th day of September, 1881, and prior to the bringing of this«suit, said committe made contracts for the erection and completion of said structure, all of which has been done; none of which contractors ever have been served with notice of any injunction having been allowed herein, and defendant says that after said contracts were awarded, it had no power to prevent them from completing their contracts as aforesaid.
    Defendant further says that said The Cincinnati, San-dusky & Cleveland Railroad Company was property and legally served with notice of the intended application of defendant to appropriate a part of said lot as aforesaid, as well' as all other necessary parties thereto.
    That said The Cincinnati, Sandusky & Cleveland Railroad Company appeared in said probate court by its attorneys and made and argued motions and examined witnesses during the trial of said proceeding.
    That the part of said lot No. 4 sought to be appropriated and was therein appropriated consisted of a strip of ground 25 feet front by 50 feet, out of the south corner thereof.
    That if any wrong has been committed against plaintiff in said proceedings, plaintiffs have a complete and adequate remedy at law.
    Defendants further say that said lot so appropriated as aforesaid is necessary for the construction of said village prison and offices.
    Wherefore defendant asks that said injunction may be dissolved and said defendants restored to all things they have lost by reason thereof.”
    The plaintiffs did not reply. Upon the issues joined by these pleadings, the case was tried in the court of common pleas, where the plaintiff prevailed ; and the defendant appealed. The circuit heard the cause at its September term, 1887, and separately stated its conclusions of fact and law as follows:
    “ 1. The court find that the allegations of the defendant’s answer relative to the condemnation proceedings, therein mentioned, as having taken place in the probate court of said county, are true, that record of said proceedings was submitted to the court by the defendant, and the court declined and refused to hear any other evidence in the case except as set forth in the record of said probate court in said condemnation proceedings.
    “ 2. Upon the said record, the court refusing to hear any other evidence, they find that said condemnation proceedings were regular; and that said plaintiff, The Cincinnati, Sandusky & Cleveland Railroad Company, was a party thereto, and upon the facts so found the court finds the equity of the case to be with the defendants ; it is therefore considered and adjudged by the court that the injunction heretofore allowed herein be, and the same is dissolved, and that the defendants be restored to all things lost by reason thereof. It is therefore considered that the defendant, the village of Belle Centre, Logan county, Ohio, recover of the plaintiff, The Cincinnati, Sandusky & Cleveland Railroad Company, their costs expended, taxed at f-.”
    A motion for a new trial was filed in due time, which was overruled by the court. Exceptions to the ruling were taken by the plaintiff, the railroad company, and a bill of exceptions was allowed, from which it appears, that “it was agreed by the parties that the several allegations of the plaintiff’s petition in regard to The Mad River & Lake Erie Railroad Company, and the conveyance to it of the said lot No. 4, the terms, conditions and purpose of said conveyance; the building, operation and maintenance of said line of road, and the occupancy of said lot No. 4 for depot purposes were severally true. It was further agreed that in the year 1866, by judicial reorganization, and the sale and transfer of said line of railroad and of said lot No. 4, the said The Cincinnati, Sandusky & Cleveland Railroad Company became the successor to the said The Mad River & Lake Erie Railroad Company, and then became and has thence hitherto continued to be the owner of said line of railroad, with all the rights of its said predecessor, including its rights to and ownership of said lot No. 4, with the depot building thereon standing, which it has continuously maintained and operated ever since. It was further agreed that since the commencement of this action the said temporary lease of the other plaintiffs in the petition mentioned has expired, and that the said The Cincinnati, Sandusky & Cleveland Railroad Company alone prosecutes this action. The plaintiff, the said railroad company, to further maintain the issues on its part offered as evidence the deed to the said The Mad River & Lake Erie Railroad Company for the said lot No. 4, a copy of which is hereto attached marked “ A,” and made part of this bill of exceptions, and also offered other competent evidence, oral and record, tending to prove the allegations of the petition on its part, but the court refused to hear or consider the same or any evidence in support of the petition, other than the record of the condemnation proceeding before the probate court in the pleadings mentioned, and directed the defendant to first introduce the record of said condemnation proceeding, to all which ruling and refusal to admit evidence the said The Cincinnati, Sandusky & Cleveland Railroad Company by its counsel then excepted. The defendant then to maintain the issue on the part of said village offered and read in evidence the record of the said probate court, and of the said condemnation proceeding had therein, a transcript and copy of which marked “ B,” is hereto attached and made part of this bill of exceptions.”
    The deed from Hemphill and others to The Mad River & Lake Erie Railroad Company, describes lot No. 4, referred to, as “being 535 feet front on the railroad and 200 feet back.” Such portions of the record of the probate court to which reference is made in the bill of exceptions and judgment of the court, as may be deemed important in the decision of the case, will be noticed in the opinion. The proceeding in error here is to reverse the judgment of the circuit court.
    
      W. A. West, for plaintiff in error.
    I. The question of law involved in this case may be briefly stated, to wit: Has the general power conferred upon a municipal corporation, by section 2232 of the Revised Statutes, “to appropriate, enter upon, and hold” real estate within its corporate limits, for the purposes therein enumerated, also clothed it with power “ to appropriate, enter upon, and hold ” property already dedicated to'another public use?
    In this country most of the railway charters, (as is the case here,) contain a power to the company to acquire lands by agreement with the owner. In such case it has been held the rights of the company are the same as where they take their land under their compulsory powers, and is the same as taking lands in invitum. So far as the merits of the present case are concerned, the land, though held by purchase, must be held in the same light as if it had been originally acquired by the railroad in the exercise of the compulsory power vested in it by the act of its incorporation, to appropriate private property to a public use. In either event, whether the land be acquired by purchase, or by its vested right of emi
      
      nent domain, it is held by the company, dedicated to that public use, in view of which its power to take or acquire title to land, whether bj^ purchase or appropriation, was alone conferred. 1 Redfield on Railways, 234 and n.: Whitcomb v. Vermont Cent. Railw., 25 Vt. 49, 69; 1 Redfield, 234, n., and cases there cited; 1 Potter on Corporations, 220, n. 5; In re, N. Y. & H. R. Co., 46 N. Y. 546; Buf. & N. Y. R. Co. v. Brainard, 9 N Y. 100; Olcott v. Supervisors, 16 Wall. 678; Bonaparte v. C. & A. R. Co., Bald. 205; Bradley v. N. Y. & N. H. R. Co., 21 Conn. 294; Brown v. Beatty, 34 Miss. 227; Swan v. Williams, 2 Mich. 427; Giesy v. C. W. & Z. R. R. Co., 4 Ohio St. 308; Moorehead v. L. M. R. R. Co., 17 Ohio 340; Eldridge v. Smith, 34 Vt. 484; N. Y. & H. R. Co. v. Kipp, 46 N. Y. 546; State v. Mansfield, 3 Zabr. 510; Phil. W. & B. R. Co. v. Williams, 54 Pa. St. 103; Protzman v. Ind. R. R., 9 Ind. 467; Lacy’s R. R. Digest, 179; Maghee v. C. & A. R. R., 45 N. Y. 514; P. Ft. W. & C. R. R. v. Rose, 24 Ohio St. 219; 1 Redfield on Railw. 261, 262; Ib. 261, 262, n. 1; In re N. Y. & H. R. Ry., 46 N. Y. 546; 24 Ohio St., supra, 219, 230; Richards v. Scarborough Public Market Co., 23 Eng. L. and Eq. 343; 1 Redfield on Railways, 409; London & Birm. R. R. Co. v. Grand Junction Canal Co., 1 Eng. Railway Cas. 224; 1 Redfield on Railways, 351, n. 3; N. Y. & H. Railw. v. Kipp, 46 N. Y. 546; Stock & Darlington R. R. v. Brown, 6 Jur., (N. S.) 1168; North Missouri R. R. v. Lackland, 25 Mo. 515; Same v. Gott, Ib. 540; Lundon v. Midland R. R. Co., 34 L. J. Ch. 276; State v. Boston, Concord Montreal R. R., 25 Vt. 433.
    But we are not confined merely to the analogy of these judicial decisions to determine that a public corporation, clothed by the legislature with power to appropriate lands, which may be deemed necessary, to a particular public use, is properly made the proper judge of what quantity of ground will best subserve the interest and purposes of such use, if the corporation making the purchase or appropriation act in good faith. This conclusion is confirmed by the judicial construction of the statutes of Ohio, conferring upon corporations the express power to acquire, by appropriation, lands intended for a particular public use. The Iron R. R. Co. v. The City of Ironton, 19 Ohio St. 299.
    II. There can be no question but that the railroad company acquired the title to said lot No. 4 in good faith “ as and for a place of depot forever.” They purchased it for depot purposes. But land acquired by a railroad company by purchase, is as much subject to the. public use, as if acquired by appropriation, as we have shown. Both are equally and alike dedicated to the public use. The question is therefore presented: Is there any power lodged by statute, either expressly or by necessary implication, in the village of Belle Centre, to appropriate this land, already dedicated to a particular public use, to another and conflicting public use, to wit: For village offices and a prison? We do not question nor deny the sovereign right of the legislature to confer such power upon a municipal coporation, but the inquiry is, has it so vested it with power? The right of eminent domain, extending over all the property in the state, is limited simply by the boundaries of the sovereignty. It is not affected by the character of the owner, whether an individual, a municipal corporation, a railroad corporation, or even the federal government. But the exercise of this right by any power less than the sovereignty, must be conferred thereon by legislative grant. It is a question of conferred power.
    If the power to appropriate by the village property already appropriated by a railroad to the particular and authorized uses of a depot, under authority of law, is lodged by the legislature in a municipal corporation, it is conferred by one or both of sections 2282 and 2233, of the Revised Statutes of Ohio. Miami R. R. v. City of Dayton, 23 Ohio St. 510; Harback v. Toledo, 11 Ohio St. 219-228; 1 Potter on Corp., 221; Dillon on Municipal Corp., 467, 468, 469; Toledo & Wabash R. R. v. Daniels et al., 16 Ohio St 396; 20 Ohio St. 496-508; Broom’s Legal Maxims, 7th ed., 650, 652.
    Sections 2233, above quoted, must, under the rules cited, be strictly construed. It confers the power of eminent domain over the lands and tracks of railroads for one single purpose only, and that merely conditional — that its exercise shall not interfere or be inconsistent with its use by the com* pany, etc. The power thus conferred for one single purpose by express language, necessarily excludes the power for any other purpose, and especially for purposes absolutely inconsistent with any use by the railroad company of the property sought to be appropriated. Matter of Boston & Albany R. R., 53 N. Y. 574-5; 1 Potter on Corp. 237,238, n. 17; Hickok v. Hine, 23 Ohio St. 523; Springfield v. Conn. R. R. Co., 4 Cush. 63; Appeal of Pittsburgh Railroad Co., 122 Pa. St. 511; Appeal of Sharon Railroad Co., id. 533; B. & O. R. R. Co. v. Bellaire, 4 Law Bull. 201; Mills on Eminent Domain, chap. 5, secs. 45 and 46; Prospect Park etc. R. R. Co. v. Williamson, 91 N. Y. 552; 14 Amer. and Eng. R. R. Cases, 34; A. & F. Ry. Co. v. A. & W. R. R. Co., 75 Virg. 780; 10 Amer. and Eng. R. R. Cases, 23, 31; Albany North R. R. Co. v. Brownell et al., 24 N. Y. 345; West River Bridge Co. v. Dix, 6 How. U. S. R. 507; The Iron R. R. v. The City of Ironton, 19 Ohio St. 305.
    That our remedy in this case is by injunction I cite the following: 24 N. Y., 345; 1 High on Injunctions, 231.
    
      McLau,ghlin $ Bow, for defendant in error.
    The probate courts of this state are, in the fullest sense, courts of record. They belong to the class whose records import absolute verity. They are competent to decide on their own jurisdiction, whether that be of the person or of the subject matter, and exercise it to final judgment. They are given jurisdiction to as fully try and determine the rights of parties in proceedings of condemnation as the court of common pleas. See Shroyer v. Richman, 16 Ohio St. 455; 3 Ohio St. 500; 8 Ohio St. 27, 39; Revised Statutes, sections 2252, 2254; Dillon on Corporations, section 611.
    The probate court had jurisdiction, not only of the subject matter, but also of the person of the plaintiff in error. The records show that it made the motion, not merely to the jurisdiction of the person of the plaintiff, but also as to the subject matter. It appeared, examined witnesses, and had the cause continued. The company did not appear for the 
      sole purpose of objecting to the service, but the motion involved the merits of the action. They objected to the jurisdiction over the subject matter. Smith v. Hoover, 39 Ohio St. 249; Elliott v. Lawhead, 43 Ohio St. 171; Handy v. Insurance Company, 37 Ohio St. 366; Holm v. Marshal, 29 Ohio St. 611; section 5043, Revised Statutes; section 5048 Revised Statutes, par. 2.
    The probate court having had jurisdiction both of the person and of the subject matter, plaintiff in error had a complete remedy at law in the proceeding it now seeks to enjoin; it cannot therefore maintain this action. Geisy v. The Railroad Company, 4 Ohio St. 308; A. & O. Railroad v. Sullivan, 5 Ohio St. 276; Atkinson v. Railroad Company, 15 Ohio St. 21; Swan’s Pleadings and Precedents, 257; Story on Equity, 875.
    The question of the necessity of said strip for the use of plaintiff in error was one that the probate court had jurisdiction to determine in said application. L. M. & C. Railroad v. City of Dayton, 23 Ohio St. 518; Iron R. R. Co. v. The City of Ironton, 19 Ohio St. 299.
    This strip of ground not having been acquired by plaintiff by appropriation, and not being necessary for its use, it is subject to appropriation for the purposes described in the proceedings for condemnation, whether consistent with the original grant or not. Little Miami & Columbus R. R. Co. v. City of Dayton, 23 Ohio St. 510; Iron R. R. Co. v. City of Ironton, 19 Ohio St. 299; 6 Am. and Eng. Encyc. of Law, par. 6, 535, and cases therein cited; 6 Howard, 506; 26 Pickering, 360; I. W. L. J. 251-275; Walker and Bates’ Digest, 414, par. 56, 57; L. S. & M. S. R. R. v. The N. Y. C. & St. L. R. R., p. 167, Ohio Law Journal, vol. 2, No. 11; 2 Abbott’s Digest, 376.
    Plaintiff further claims that this ground having once been dedicated to a public use, cannot be appropriated by the Village of Belle Centre to the uses sought, without express or by necessary implied authority. Section 2232, Revised Statutes, gives full power. This authority is broad, it is not limited to real estate owned by individual persons, neither is it confined to lands that have nolf been dedicated to public uses. Vol. 70, O. L. 175.
    
      West West, for plaintiff in error, in reply.
    1. The grant of the power of eminent domain to a corporation in general language, without words of special legislative intent as to the property on which it may be exercised, will be construed and interpreted to exclude all property which, before its exercise, shall have been acquired or appropriated for, or dedicated to, another and different inconsistent public use.
    Where a corporation to which the power of eminent domain is so granted in general language, without words of special legislative intent, invokes the jurisdiction of the probate court for its exercise, all propert3r which previously thereto shall have been acquired or appropriated for, or dedicated to, another and different inconsistent public use, will be deemed and held to be excluded from the purview of the grant, and consequently excluded from the jurisdiction of the court.
    Where such court assumes to exercise jurisdiction, under a grant of the power of eminent domain in general language, to declare the appropriation of property previously acquired or appropriated for, or dedicated to, another and different inconsistent public use, its judgment of appropriation is eoram non judiee and void. Pennsylvania Company’s Appeal, 93 Pa. St. 150.
    Authority given in general terms is, consequently, presumptively not sufficient to authorize the taking for an inconsistent use, of property already devoted to a-public use, and necessary for the purpose for which it is devoted. This rule has been frequently applied where one private corporation, as a railroad company, seeks to condemn property of another, in use for a public purpose.
    The right to exercise the power of eminent domain must, then, be conferred by clear and express terms, or by necessary implication. And an application does not arise except from the language of the legislative act, or from its being shown, by an application of the act to the subject-matter, to be a necessary condition to the beneficial enjoyment and efficient exercise of the power expressly granted, and then only to the extent of the necessity. Hickok et al. v. Hine 23 Ohio St. 523; The Appeal of Sharon Railway Co., 9 American St. Reports, 133.
    II. What is jurisdiction? Sheldon v. Newton, 3 Ohio St. 494.
   Williams, C. J.

The probate courts of this state, are empowered by the constitution, in addition to their jurisdiction in probate and testamentary matters, and others expressly enumerated, to take such other jurisdiction as may be provided by law. Constitution, section 8, article 4. They have been given general jurisdiction to make inquests of the amount of compensation to be made to owners of real estate, when appropriated by any corporation legally authorized to make such appropriation. Revised Statutes, section 524. The purposes for which municipal corporations may appropriate real property, are defined, and the mode of procedure in such cases prescribed, by chapter 3, division 7, title 12, of the Revised Statutes.

When it is deemed necessary by the municipal corporation to appropriate any real property within its limits, for any of the authorized purposes, and the council shall by proper resolution declare the intention to make the appropriation, an application may be made to the probate court, and prosecuted therein to final judgment. The notice to the owners whose property is sought to be appropriated, the manner of service of the same, the empaneling of the jury, the conduct of the trial, the verdict and judgment, are all provided for, and regulated by the statute. When the assessment of the compensation has been made by the jury, the court shall make such order for its payment or deposit, as may seem proper, designating the time and place of payment or deposit, the persons entitled to receive payment, and the proportions payable to each; and the court may require adverse claimants of any part of the money or property, to interplead, and fully determine their rights in the same proceeding. The court may also direct the time and manner in which possession of the property condemned shall be taken or delivered, and may, if necessary, enforce the order for the possession. No doubts that arise concerning the ownership of the property, or the interests of the parties therein, shall cause any delay in the proceeding, or in taking possession of the property. But in such cases, the court shall require a deposit of the compensation allowed; and in all cases, as soon as the compensation shall be paid, or secured by a deposit under the order of the court, possession of the property may be taken, and the public work or improvement progress. Provision is also made for prosecuting error, as in other cases, by any party aggrieved; and also for appeal. The circuit court found that the proceedings had in the probate court on the application of the defendant here, were regular; and the record shows them to be so. It is clear, therefore, that if the probate court had jurisdiction of the parties, and of the property involved, its judgment established the right of the village to enter upon and hold the property thus appropriated, and to subject it to the proposed uses ; and must necessarily operate to defeat the plaintiffs action. For, such a judgment, until reversed, is final and conclusive between the parties, and cannot be collaterally impeached. This we do not understand to be seriously controverted. The contention of the plaintiff, here, is, that the probate court, in the appropriation proceedings, acquired no jurisdiction, either over it, or its property; and the judgment, therefore, constituted no barrier to the relief sought by the plaintiff in the court below. And, it is not doubted, that unless the probate court had jurisdiction over both the property and the parties, its judgment is void, and may be collaterally assailed. The inquiry then is, was there a want of jurisdiction in either particular?

1. The claim of the plaintiff in error, with respect to the want of jurisdiction over its person, as alleged in the petition, is, that during the pendency of the proceeding in the probate court, it was a resident corporation, maintaining its general office and place of business in this state, and that it was not served with notice of the application, otherwise than by publication.

The statute, section 2237, provides that notice of the time and place of the application, “shall be given personally in the ordinary manner of serving legal process, to all the owners or agents of the owners of the property sought to be appropriated, resident in the state, whose place of residence is known; and to all others, by publishing the substance of the application, with a statement of the time and place at which it is to be made, for three weeks next preceding the time of the application, in some newspaper of general circulation in the county.”

The record of the probate court shows that the plaintiff in error was made a party defendant to the application, and, when the time for making the application was fixed, the court ordered that the defendants be duly notified thereof; and, that an affidavit in due form, was filed, for service by publication upon the plaintiff here, stating that it had no officer or agent upon whom personal service could be made; and also, that notice, in conformity to the statute, was published in accordance with its requirements, in such cases, and due proof of publication made. It further shows, that when the application was made, the court, “after hearing the evidence, being satisfied that.the owners, and those claiming to own said real estate, have been notified according to law, of the time, place and purpose of the application, and that the necessary statutory steps before making the same have been had,” ordered a jury to be drawn, and proceeded with the case.

The averments of the plaintiff’s petition were controverted by the answer. And it appears from the bill of exceptions, that on the trial in the circuit court, the plaintiff offered evidence tending to prove the allegations of its petition, but the court refused to hear any evidence other than the record of the condemnation proceedings. The question is thus raised, whether it was competent, in that collateral proceeding, to contradict the record of the probate court, by showing that the plaintiff in error was a resident corporation, having in this state officers or agents upon whom personal service might have been obtained, and that therefore, it was not legally served by publication.

In Hammond v. Davenport, 16 Ohio St. 177, it was held, that defendants on whom no service of process was had, otherwise than by publication, will not be allowed, in a collateral proceeding, to draw in question the jurisdiction of the court rendering the decree, by proving that at the commencement, and during the pendency of the proceeding, they were residents of the state. And see Callen v. Ellison, 13 Ohio St. 446. And the question here, is, whether that rule is applicable to probate courts in proceedings of the kind we are considering. It seems well settled, that the probate courts of the state are courts of record, competent to decide on their own jurisdiction, and exercise it to final judgment; and that their records import absolute verity. Shroyer v. Richmond, 16 Ohio St. 455. The class of tribunals to which they belong, and the character of their jurisdiction, are aptly pointed out in the opinion of the court in the ease just cited, in the following language: “ True, it (the probate court) is a court of limited jurisdiction, and it is equally true, that the jurisdiction of each of the courts of the state is expressly limited, either by the constitution or by statute. But, as was said in the case of Sheldon v. Newton, 3 Ohio St. 494, ‘ the distinction is not between courts of general and those of limited jurisdiction, but between courts of record, that are' so constituted as to be competent to decide on their own jurisdiction, and to exercise it to a final judgment, without setting forth the facts and evidence on which it is rendered, and whose records, when made, import absolute verity; and those of an inferior grade, whose decisions are not, of themselves, evidence, and whose judgments can be looked through for the facts and evidence which are necessary to sustain them. Orphans’ courts, and courts of probate, when constituted courts of record, have uniformly been held of the former description,’ and the authorities cited in that case fully sustain these positions.”

The statute regulating these appropriation proceedings, expressly confers upon the probate court power to decide when the service is complete, and the parties are in court. Its decision upon those questions cannot, we think, be collaterally inquired into; and the circuit court committed no error in refusing to hear evidence offered for that purpose. Besides, it is shown by the record of the probate court, that the plaintiff in error, at the time and place fixed for making the application as designated in the published notice* filed its motion in that court to dismiss the proceeding and deny the application, for the reason, among others, that the court had no jurisdiction of the subject-matter. The motion was argued by counsel for the parties, and overruled by the court. This effected the appearance, and gave the court jurisdiction of the plaintiff in error. Elliot v. Lawhead, 43 Ohio St. 171.

2. But the claim is made that the probate court had no jurisdiction over the property, because no power has been conferred on municipal corporations to appropriate property owned by a railroad company, for the uses for which the property was sought.

This claim is based upon two propositions: First, that the property was already devoted to a public use, viz., that of the railroad company, and could not be taken for another and different public use, under the general power possessed by the defendant to appropriate real property for such use; and, second, that the express grant of power, by section 2233 of the Revised Statutes, to municipal corporations, to appropriate property owned by a railroad company, for the purpose of opening or extending streets or alleys, under the limitations therein contained, by implication, excludes the power of appropriation of such property, for any other purpose.

If it be true that the defendant was without lawful authority to appropriate the property for the proposed uses, the judgment of the probate court, of course, could confer none. If, on the other hand, the defendant was clothed with the necessary power, the judgment of the court was not open to collateral attack, but could only be reviewed on error, or appeal. In support of the first proposition, it is argued, that the railroad company was the exclusive judge of what lands were necessary for its purposes; and, that the land in question, having been acquired for a depot, and thus devoted to a public use, could not be taken by the defendant for the uses proposed, because the power to so take it, is not expressly granted by the statute, nor necessarily implied from the terms of the grant. The statute, in general language, expressly authorizes any city or village, “ to enter upon and hold real estate within its corporate limits,” for “necessary offices,” and for “prisons.” Revised Statutes, section 2282. No limitation on the power is found in the statute, either with respect to the ownership, or the uses made of the property. Under a statute, which, in equally general language, conferred power upon cities and incorporated villages, to enter upon and take land for the purpose of opening and extending streets and allej's, it was held in L. M. & C. & X. R. R. Co. v. Dayton, 23 Ohio St. 510, that they were authorized to appropriate to those uses, lands which were the subject of the franchises of railroad companies ; provided the second use for which the land was taken was, in the circumstances of the particular case, reasonably consistent with the former use. The court say in that case, that the terms of the grant are “ sufficiently broad, prima facie, to confer the requisite authority, and there is in such case nothing in the nature of the use to which the land has been appropriated bj'- the railroad company, or in that to which it is proposed to subject it bj'- the second appropriation, which requires us, upon the presumed intention of the legislature, to ingraft upon the general terms of the grant an exception which will prohibit such crossing.” According to the rule established by that decision, whether municipal corporations, under the power conferred by section 2232 of the Revised Statutes, can appropriate lands owned by a railroad company, within their limits, for any of the specified uses, must depend upon the circumstances of each case ; the criterion in all cases, being, whether such appropriation is reasonably consistent with the use to which the property has been subjected by the railroad company. And whether it is so consistent, may, in each case, become a question of fact.

Though it is not so shown by the bill of exceptions, it may be supposed that it was to this point the plaintiff, on the trial in the circuit court, offered evidence. The nature of the evidence is not disclosed. And under the pleadings, its precise character is not readily conjectured. The lot is described in the 'deed, referred to in the petition, as “ being 535 feet front on the railroad, and 200 feet back.” That portion of it which the defendant sought to appropriate, is 25 feet by 50 feet in dimensions. And, while it is averred in the petition that a depot building has been erected and is maintained on the lot, it is not alleged that any part of the building is on the portion wanted by the defendant. Nor, is it averred that any of that part of the lot is occupied or used for railroad purposes, or that it is in any way necessary for the use or operation of the plaintiff’s road, or the conduct of its business. The answer alleges, that the depot building is 125 feet distant from that part of the lot embraced in the condemnation proceeding; that on the intervening space, there is, and for years has been, a building occupied for business rooms, in no way connected with the business of the railroad company; and, that the portion of the lot which the defendant was seeking to appropriate, has never been needed, or used, or occupied for any railroad purpose, and never will be by the plaintiff. The plaintiff not having replied, these allegations of the answer stand admitted. Proof in their stipport was unnecessary, and proof against them inadmissible. It is not suggested that the proof offered was for any other purpose.

Was the defendant, under these circumstances, destitute of power to appropriate the property so conditioned? It may be true, that a railroad corporation is, in the first instance, the exclusive judge of what lands are necessary for its purposes, and of the quantity of land so needed; and that it may acquire the same by condemnation. But the rightful exercise of its power of eminent domain, is limited to the appropriation of such lands as are reasonably necessary for its legitimate uses. Whatever, beyond that, is so acquired, must result from erroneous judgment, or a wilful abuse of the power. What reason can there be for exempting such excess, when not employed, nor in any way reasonbly necessary, in the proper exercise of its corporate franchises, from appropriation for a needed public use ? There appears to be none. The power of eminent domain, is the right to make private property “ subservient to the public welfare,” without the owner’s consent. It resides in the sovereign, and rests upon public necessity. And though it may be delegated to, or exercised through instrumentalities like corporations, it can never be rightfully exercised beyond the public necessity. Giesey v. R. R. Co., 4 Ohio St. 308. All property, however held, is necessarily subject to the legitimate exercise of the power. It seems to be a well established rule, however, that property already appropriated, in the proper exercise of the power of eminent domain, cannot be taken for another public use which will wholly defeat or supersede the former use, unless the power to make such second appropriation be given expressly or by necessary implication. Railroad Company v. Dayton, supra. But land held by a corporation, whether acquired by purchase or appropriation, which is not employed in, nor needed for the proper exercise of its corporate franchises, is not within the reason or operation of the rule. The admissions of the pleadings, in the case before us, show that the property appropriated by defendant for the purpose of .the municipality, was of this character, and it was, therefore, we think, the proper subject of such appropriation.

The provision contained in section 2233, of the Revised Statutes, relating to the opening and extending of streets and alleys across railroad tracks, and lands held or owned by railroad companies, first became a part of the legislation of this state, by the passage of the act of April 28, 1873. That act did not contain the clause, limiting the appropriation for such purposes, to cases “ where such appropriation will not unnecessarily interfere with the reasonable use of such road, or land, by the railway company.” The original act, with this clause added, was carried into the Revised Statutes, as the section above named. Before the enactment of the statute, the case of the Railroad Company v. Dayton, supra; had been decided; by which it was established, that under a general power, like that granted by section 2232, municipal corporations were authorized to appropriate property held or owned by railroad companies, under substantially the same conditions now embodied in section 2233. This latter section did not, therefore, confer the power to appropriate railroad property. It was not necessary for that purpose. The power existed before that statute was enacted, and independently of it. The statute is, therefore, simply declaratory of what the law was at the time of its adoption, and was not designed to exclude the power then possessed by municipal corporations under the general grant.

Hence, we conclude,.that municipal corporations, under the power conferred by section 2232, of the Revised Statutes, are authorized to appropriate, for necessary public offices, or a prison, land of a railroad company, which is not needed or used in the operation of its road, or the conduct of its business ; and that the probate court had complete jurisdiction in the appropriation proceeding instituted bythe defendant, .and the plaintiff is concluded by its judgment.

The judgment of the circuit-court is affirmed.  