
    McQuillen v. Hatton.
    The facts being ascertained, the question whether or not a ditch will conduce to the public health, convenience or welfare, within the meaning of Revised Statutes § 4511, so that it will be of public use, is a question of law ; and the mere fact that larger and better crops may be raised on two farms sought to be drained, does not authorize the establishment of the ditch.
    EititoB to the District Court of Brown county.
    Proceedings were bad under section 4511 of the Revised Statutes, which provides that, “The trustees of any township may, whenever in their opinion the same will be conducive to the public health, convenience or welfare, cause to be established, located, and constructed, as hereinafter provided, any ditch, within such township.”
    The original action was by M. Hatton and Isabella Hatton against A. McQuillen before the trustees of Perry township, Brown county. M. Hatton and Isabella Hatton are husband and wife, and were the only petitioners for the proposed ditch. Isabella and McQuillen are the owners of the land adjoining the line of the proposed ditch. Since the commencement of these proceedings A. McQuillen has deceased, and his executrix was made a party.
    The proceedings were regular, and the trustees located and established the ditch partly on the lands of Isabella Hatton and partly on the lands of McQuillen. McQuillen appealed to the probate court, and a jury tidal was had there, under the provisions of Revised Statutes, section 4533 and following, and the jury found in favor of the establishment of the ditch. McQuillen moved for a new trial, which motion was overruled, and entry made establishing the ditch.
    On the trial, some of the witnesses on behalf of Hatton testified that, in their opinion, the proposed ditch would be conducive to public health, convenience and welfare ; and on cross-examination they assigned as a reason for such opinions, that the proposed drain would enable Hatton and McQuillen to raise larger crops and that these larger crops would be a public benefit, and in this way only would the proposed ditch be conducive to public health, convenience and welfare.
    Thereupon McQuillen asked the court to charge the jury some thirteen propositions, which the court refused to give and to Which refusal McQuillen excepted, and took a bill of exceptions. The last part of the ninth proposition is as follows, to wit: “ The mere fact that the ditch in question might enable Mr. Hatton or Mr. McQuillen to raise more corn or other grain does not authorize you to return a verdict in favor of the establishment of the ditch.”
    And the tenth is, — “ The fact that the ditch in question might enable the petitioner to raise larger crops is a fact going to show that they would be privately benefited, but it requires more than this to authorize you to find a verdict showing that it would be conducive to public health, convenience or welfare to locate the ditch.
    “ If you find that the petitioners, M. Hatton and Isabella Hatton and the appellant A. McQuillen are the only persons in any way interested in the location of the ditch, and that it would not be conducive to public health convenience or welfare to locate the ditch in question, then, and in that case, you should return your verdict against the proposed ditch.” The latter part qf the tenth was given, the rest was refused. The proceedings were taken on error to the court of common pleas, where the judgment of the probate court was affirmed; and the district court affirmed the judgment of the court of common pleas. McQuillen is now here seeking to reverse the judgment of the district court.
    
      W. W. McKnight, for plaintiff in error
    
      Thompson c& Fite, for defendant in error.
   Follett, J.

The charge as given and the refusal to charge as requested, in effect, told the jury, that the mere fact that the ditch would enable Hatton and McQuillen to raise larger crops, would authorize a verdict in favor of establishing the ditch.

Article I, section 19 of the constitution provides that, ‘private property shall ever be held inviolate, but subservient to the public welfarethus placing beyond question, that private property cannot bo taken for amere private use. McArthur v. Kelley, 5 Ohio, 139; Shaver v. Starrett, 4 Ohio St. 498; Reeves v. Treasurer Wood Co., 8 Ohio St. 345.

Two petitioners are sufficient, and one petitioner is all the law requires; and the land through which the ditch is to pass need not be owned by more than two persons, and if owned by one person only the ditch may be made. Reeves v. Treasurer Wood Co., 8 Ohio St. 333; Kent v. Perkins, 36 Ohio St. 639. Whether or not the use.for which property is proposed to be taken is a public use, is a question of law, to be settled by the judicial power. Costar v. Tide Water Co., 18 N. J. Eq. 55; Tyler v. Beacher, 44 Vt. 648; Parham v. Justices, 9 Geo. 341; Anderson v. Turbeville, 6 Coldw. 150; Channel Co. v. Railroad, 51 Cal. 269. The use-must be for the public, at large. Memphis Freight Co. v. Mayor, 4 Coldw. 419. The use that will justify the taking of private property by the power of eminent domain, is the use by or for the government, the general public or some portion of it; and not the use by or for particular individuals, or for the benefit of certain estates. The use may be limited to the inhabitants of a small locality, but the benefit must bo in common and not to a very few persons or estates. Costar v. Tide Water Co., supra; Talbot v. Hudson, 16 Gray, 417, 424; Gilmer v. Lime Point, 18 Cal. 229.

The prosperity of each individual conduces, in a certain sense, to the public welfare, but this fact is not a sufficient reason for taking other private property to increase the prosperity of individual men.

The draining of marshes and ponds may be for the promotion of the public health and so become a public object; but the draining of farms to render them more productive, is not such an object. Anderson v. Kerns Draining Co., 14 Ind. 199.

The other errors complained of refer to the question whether or not the proposed ditch would be a public benefit or only a private benefit.

"We tbinlc the mere fact that the proposed ditch would enable the parties to raise more corn and larger crops, did not authorize a verdict in favor of establishing the ditch; and that the probate court erred in refusing to charge the jury all the ninth and tenth propositions requested by McQuillen.

The motion to file petition is granted, and, all the judges concurring, the judgments are reversed, and the cause is remanded to the probate court for further proceedings.  