
    MUNICIPAL CORPORATIONS — APPROPRIATION.
    [Lucas (6th) Circuit Court,
    October 19, 1901.]
    Haynes, Parker and Hull, JJ.
    Elizabeth Webber v. Toledo.
    1. Appropriated Property Transferred — Action Por Compensation — Parties.
    Where a city appropriated property' to widen and extend a street and had compensation assessed.to the owners thereof, but failed to take possession of the property or pay the award, until several years after the appropriation, and after the property has passed into other hands, a widow as devisee thereof under the will of a testator, who owned part of the property'at the time of appropriation and to whom part was conveyed by warranty deeds after the appropriation and before the improvement was commenced, lias the right to bring an action for the amount assessed in the appropriation proceedings.
    2. Action not Barred in Less Than Twenty-One Years.
    The owner of property appropriated by a city for street improvements, wherein the city neglects to pay or take possession thereof within six months as provided hv .Sec. 2'260, Rev. Stat, has an election when the property is taken, to determine how he will sue therefor. His right is not barred, under Sec. 4977, Rev. Stat., in less than twenty-one years. Section 4981, Rev. Stat., the six years’ statute is not applicable. ,
    3. Taking Possession Without Paying Award — Remedy. - ■
    Where a city, under Sec. 2232, Rev. Stat., authorizing appropriation, takes possession of property, without payment of compensation awarded, the owner is not entitled to bring ejectment. His only remedy is to seek compensation.
    
      4. Evidence of Intention to Dedicate — Waiver.
    An intention to dedicate properly to public use must be evinced by acts clearly showing such intent. Therelore, the fact that the owner of property abutting a street, part of which is appropriated to widen the same, puts down a sidewalk either voluntarily or by order of the city for the purpose of enabling persons passing on the street to use it, cannot be construed as an intent to dedicate the property to the public or a waiver of any rights barring his recovery for the laud so appropriated.
    HEARD ON ERROR.
    M. R. Brailey and J. P. Mantón,- for defendant in error.
    T. L. Gifford, for plaintiff in error,
    cited :
    An action to recover compensation for lands taken for public use must be brought by the owner of the land at the time the action is commenced. Pittsburgh & W. Ry. Co. v. Perkins, 49 Ohio St. 326, 333 [31 N. E. Rep. 350]; Fries v. Railway Co., 56 Ohio St. 135 [46 N. E. Rep. 516]; Clarke v. Cleveland, 6 Circ. Dec. 176 (9 R. 118); Cincinnati, P. & V. Ry. Co. v. Davis, 10 Circ. Dec. 745 (19 R. 589).
    Elizabeth Webber possessed all the rights of Jacob Webber and was therefore, the only proper person who could have brought this action Railroad Co. v. Robbins, 35 Ohio St. 531; Warner v. Tanner, 38 Ohio St. 118,120; Railroad Co. v. O’Harra, 48 Ohio St. 343 [28 N. E. Rep. 175]; Railway Co. v. O’Harra, 50 Ohio St. 667, 678 [36 N, E. Rep. 14],
    The owner has twenty-one years from the time of the taking of his land in which to bring an action to recover compensation therefor'. Section 4977, Rev. Stat., gives to a claimant twenty-one years in which to bring an action to recover the possession of real estate wrongfully withheld from him. See, also, Dane v. Kennedy, 13 Ohio St. 42, 46; Tootle v. Clifton, 22 Ohio St. 247, 252 [10 Am. Rep. 732 ]; Thomason v. Day ton, 40 Ohio St. 63, 68.
    Municipal corporations áre subject to the operation of the statute of limitations in the manner and to the same extent as natural persons. Cincinnati v. Evans, 5 Ohio St. 594; Elster v. Springfield, 49 Ohio St. 82 98 [30 N. E. Rep. 274]; Hartman v. Hunter, 56 Ohio St. 175, 179 [46 N. E. Rep. 577]; Mott v. City of Toledo, 7 Circ. Dec. 216 (17 R. 472).
    The city having abandoned the proceedings to appropriate the land by its failure to comply with the order of the probate court within the time provided by the statute governing the same,-it lost whatever rights it had secured by virtue of the appropriation proceedings. It had no right to take possession of the land sought to be appropriated subsequent to the period stated in the order of the probate, court without the consent of the owner. However, having taken possession without such consent, the owner, if he so elected, could have maintained ejectment proceedings and ousted the city therefrom. Dillon on Municipal Corporations, Secs. 611 and 613; Elliott on Roads and Streets, Secs. 130» 242; Ryan v. Hoffman, 26 Ohio St. 109, on page 120.
    The owner having elected to bring an action for compensation, she could sue for the amount of the award in the appropriation proceedings or have the damages assessed as of the time of entry of the city upon the land. Toledo v. Groll, 1 Circ. Dec. 441 ( 2 R. 199). (Aff. by S. C., 23 Bull. 220.)
    A dedication cannot be based upon presumption. There must be facts shown from which a dedication can be fairley inferred. Those facts must be external and unequivocal, such facts as clearly indicate an intention to dedicate. The intention which must be shown to establish a dedication must be clear and unequivocal. It cannot be left to presumption or inference; but must be established clearly and without question. Elliott on Roads and Streets, Sec. 156; Eongworth v. Cincinnati, 48 Ohio St. 637, 645 [29 N. E- Rep. 274]; Millikin v. Bowling Green, 6 Circ. Dec. 483 (9 it. 493); Cherry v. Howe, 9 Circ. Dec. 131 (17 R. 246) ; Toledo v. Converse, 11 Circ. Dec. 468 (21 R. 239); Bass & Eake Co. v. Hollenbeck, 5 Circ. Dec. 242(11 R. 508.); Washburn on Easements, page 205; Case v. Favier, 12 Minn. 48. Mere lapse of time alone not sufficient. Penquite v. Eawrence, 11 Ohio St. 274.
    Even though the owner consent to the entry by the city, still that would not deprive him of the right to recover compensation for the land taken. Penn. Ry. Co. v. Platt, 47 Ohio St. 366, 382 [ 25 N. E. Rep. 1028] ; Goodin v. Canal Co., 18 Ohio St. 169, 179 [98 Am. Dec. 95].
    However much the opening and widening of Niagara street would benefit the remaining property of the owner, he would still be entitled to recover for the land actually taken. Cincinnati, E. & N. Ry. Co. v. Cincinnati, 62 Ohio St. 465 [57 N. E. Rep. 229]; Youngstown v. Moore, 30 Ohio St. 133.
   HAYNES, J.

Elizabeth Webber brought suit in the court of common pleas, against the city of Toledo, in which she set up that about February 15, 1875, the common council of the city duly passed the necessary legislation to open Niagara street a certain width; that on June 21, 1875, the common council passed an ordinance to appropriate the lands described in the petition, being parts of lots 228 and 248, Stickney’s addition, and also parts of lots 223 and 224; and on September 12, 1875, the city council made application to the probate court, and steps were taken whereby the amount of compensation to the owners was assessed, and É states the amount. And she says these amounts have never been paid. She says in her petition also that the city did not take the land so appropriated, and nothing further was done until about the year 1886, when the city entered upon the lands, and graded them, and they have been taken and used for a street ever since. The precise ordinance under which the grading was done has not been set out, but it is admitted that the work was doue under the authority of the city of Toledo. She says that one of the lots was conveyed to her husband in 1878, as I understand it; a portion of lot 224 was conveyed to Jacob Webber in 1875, February 12, by warranty deed, and the north half of lot 228 was conveyed to Webber by Valentine H. Ketcham February 8, 1878, and they owned the other lot before. Jacob Webber died somewhere about 1888 or 1889, I believe, and by his last will and testament he gave all this property to his wife, the plaintiff herein, who has been and remained in possession of it ever since.

It is claimed on behalf of the city of Toledo that the plaintiff has no right to sue; that even if the city was liable to pay the appropriation money, the administrator or the executor of the will of Jacob Webber was the proper party to bring the suit. It is claimed also that the statute of limitations is a bar to the action; also, that there has been a dedication of the lots by the Webbers.

The testimony shows that the Webbers were in possession of the property up to the time that the city graded the street, and had fences around it; that the city tore down the fences, graded the street, and took possession of the property, and subsequently the Webbers built a sidewalk along that part of the street for the benefit of people living on that side of the street.

It is not necessary that I should spend very much time on the case. There are two cases which settle some of the questions for us, at least. The first case is one decided by this court at the March term, 1887, the court then being composed of the original members, Upson, Baldwin, and myself. This is Toledo v. Groll, 1 Circ. Dec. 441 (2 R. 199), in which John Groll brought suit to recover the amount of $1,881 that had been awarded to him in certain proceedings brought by the city in the probate court to extend Fast Broadway across Groll’s land in East Toledo. The land had been appropriated in 1873. The city council passed a resolution directing the street commissioner to take possession of the land and open the street, but the street commissioner did not do jt. The matter remained in that condition until 1883, when the city council again passed a resolution directing the street commissioner to open the street, which the street commissioner did; and in 1884 the plaintiff began his suit, being eleven years after the award had been made. To that a contest was made by the city, and a decision was rendered by the court. After citing the statute, Sec. 2260, Rev. Stat., we cited from the opinion of Judge Gilmore in delivering the opinion of the Supreme Court in Ryan v. Hoffman, 26 Ohio St. 109, 120, wherein that judge said:

“ The provisions of this section are evidently intended for thé benefit of the land-owner, preventing as they do the land from being hung up in uncertainty for an unreasonable length of time; and a strict compliance with its requirements could be waived by the owner. An acceptance of the money assessed as compensation after the expiration of six months from the date of the assessment and delivery of possession, would constitute such a waiver and operate as a ratification of the proceedings.”

At page 122 of the same case, he says:

“ The second objection is that even if the city takes and pays for the property condemned, it takes the title by purchase, and not by appropriation, and hence cannot assess the expense on the adjoining property. From what has been before said, it will appear that there is no force in this objection. We think the city will take the title by appropriation; but the right to assess the expense upon the adjoining property depends upon other provisions of the municipal code and other proceedings not before us.”

This case was a proceeding in mandamus to compel the city to pay the amount of the assessment of compensation made by the jury.

We further cited in the same case, Trustees C. S. Ry. Co. v. Haas, 42 Ohio St. 239, where the court held that the failure of the corporation to pay and take possession of the land within six months, was no bar to a proceeding by the corporation to appropriate the same property for the same public use. And that the case was governed by the same rules as in case of municipal corporations. This court, then proceeding in announcing its decision, said:

“ We have said that we find that upon the city's making the order in 1883 and taking possession of the property, that it was proceeding under the order for the appropriation, and was seeking to take the property by virtue of that appropriation, and we think the true rule is that the owner of the property had his election to waive the forfeiture of the city to take within the six months and to demand of the city the amount of compensation assessed by the jury at the time the city'took possession in 1883; and that by the demand he made of the city for the award of- the jury, and the bringing of this suit for the same, making no objection to the city opening the street, he ratified the appropriation -and is entitled on the facts stated to recover the amount of the assessment made by the jury. The court below having so found, its judgment is affirmed.
“ Question is made as to when interest should commence to run upon the assessment.
“The plaintiff below had the use of the property during the time from 1878 to 1883, with full right to dispose of or sell the same free from the order of appropriation, and at the time of taking the property in 1883, had the right to elect to take the compensation awarded or to have a new assessment made. We therefore are of the opinion, that interest should commence to run from 1888; and the court below having so found, we affirm the judgment in that respect.”

That- case went to the Supreme Court and was affirmed without report. Toledo v. Groll, 23 Bull. 220.

Clark v. Cleveland, 6 Circ. Dec. 176 (9 R. 118), is a case that is also applicable to this one, besides containing some good law. It was decided in Cuyahoga county in 1894, and was tried before Judges Baldwin, Caldwell, and Hale, Judge Baldwin having sat in the case from which I read Toledo v. Groll, supra. I will read the syllabus :

“ After conditional judgment in favor of the plaintiff in error under 66 O. L., Sec. 537, p. 240 (R. S. 2260), in appropriation proceedings against the city of Cleveland, he conveyed the lands in fee simple-Thereafter, and after the expiration of the six months provided for in that statute, and without any new appropriation contract, the city took possession of the land, but did not pay therefor.

Held, the right of the vendor to receive the damages under the conditional judgment had ended, and the right of action -for damages for the taking of the land accrued to the vendee.”

It will be observed that the facts of the case are exactly like those of the case at bar. After stating the facts of the case, and after citing the case of Toledo v. Groll, 1 Circ. Dec. 441 (2 R. 199), the court say:

“ We think that was good law. The property owner had the election at the time of the city taking possession to determine how he would sue for the amount awarded him. We do not think that a former owner of that land, who had parted with that land by warranty deed in fee simple, had the right to make such election and require payment by the city to him for that, land of which he had long ceased to be the owner-We are therefore of the opinion that when, after the six months expired’ the city took possession of that ten feet, the right to recover for that was in Mercy J. Phillips, and not in Clarke. The decision of the court of common pleas is affirmed.”

That sustains the position that the plaintiff in this case is the one authorized to .sue ; and so we hold.

Now, in regard to the statute of limitations. • The title in this property being in Mrs. Webber, and she having the right of election when the property was taken, we think she should not be cut off short of twenty-one years, Sec. 4977, Rev. Stat., and that the six years statute, Sec. 4981, Rev. Stat., does not apply to the case.

It is claimed here that there had been a dedication of this property. We are clearly of the opinion that there had not been a dedication, or anything from which the jury could infer that there was a dedication. The statute, Sec. 2232, Rev. Stat., et seq., provides that where land is taken for and used as a street the compensation shall be made, but it does not say that it shall be first made. It is held by the Supreme Court that the rule that applies to railway companies does not apply to streets. The city takes possession of a street. The owner of the property cannot eject the city from the street, as we understand the case, and the only remedy that is left him is to seek to obtain the compensation which is allowed him ; and we think in a case of that kind, any act like putting a sidewalk on the street which the city has a right to improve and keep possession of for the use of the public, whether the sidewalk was laid down by order of the city or voluutarily by the owner, for the pui pose of enabling persons passing on the street to use it, cannot be construed into any act which shows an intent to dedicate the property to the public. The owner of the land does not waive his rights by any such act as that. To be a dedication there must be a clear intention to dedicate, and that evinced by acts tnat clearly show such intent to. dedr cate. We think no act of this kind can be construed to show any attempt to dedicate. Plaintiff in the case says that she never had dedicated. She went out to object when they came to open the street, but I think she did not go into that, or was not allowed to; at any rate, nothing further was said about it. She says her husband always during his life said he never would give any of his property, not even a shovelful, to the city.

We therefore hold that the judgment of the court of common pleas, should be reversed and a new trial awarded.  