
    Smith et al. v. Commissioners.
    
      Action to recover damages by reason of a change in the grade of a public road.
    
    Where the grade of a public road has been established, and the owner of abutting land has improved the same by erecting and maintaining buildings thereon with reference to such established grade, and with reasonable reference to the prospective improvement of the road and its future enjoyment by the public; and where the board of county commissioners has improved the road by changing such established grade, an action for damages will lie in favor of the owner against the board of county commissioners, where, by such change of grade, the owner’s free and safe passage from the road to and from his land and buildings thereon has been obstructed or impaired.
    (Decided December 5, 1893.)
    Error to the Circuit Court of Wayne county.
    The original action was commenced in the Court of Common Pleas of Wayne county, Ohio, by Mary F. Smith, William H. Smith, Charles P. Smith, James A. Smith, Mary A. Smith and Sarah M. Zimmerman, the plaintiffs in error, against The Board of County Commissioners of Wayne county, Ohio, the defendant in error.
    The amended petition, filed by the plaintiffs, reads as follows:
    “ The plaintiffs say that they now are and at the time of the committing of the grievances by defendant, as hereinafter set forth, were the owners in fee simple of the following described real estate situated in Chippewa township, Wayne county, Ohio, to wit: A part of the southeast quar-
    ter of section No. 3, township No. 18, of range No. 11, containing in all about 45 acres of land.
    “That for a period of more than fifty years a certain public road or highway leading from the village of Doylestown, in Wayne county, Ohio, fi> Akron, in Summit county, has run and passed through, said tract of land, and which said road or highway has been kept in repair and condition for public use and travel by the public authorities vested with the control and management of public roads in said Wayne county.
    “ That the grade of said road has been established, kept and maintained in reference to and respect to adjacent land, and that the grade and surface of said road or highway, and plaintiff’s lands have through all the years, for at least fifty, and until the time hereinafter set forth, been kept and maintained at practically the same level.
    “That said tract of land is improved farming land, with dwelling house, barn and suitable farm buildings erected •thereon adjacent to and along the said road or highway, and was at the time hereinafter mentioned, and for said period of fifty years, so as aforesaid, improved with suitable buildings, and the same had been improved, and said buildings erected and maintained with reference to the established grade of said road or highway, and with reasonable reference to its prospective improvement and future enjoyment by the public authorities vested with the control and management of the said road or highway; and that by reason of the established grade and relative level of said road or highway as hereinbefore alleged, said lands and buildings were of ready and easy access to and from the same.
    “That in the summer of 1884, the defendant herein, being the public body vested with the control and management of said road or highway, for and in behalf of the public, changed'and altered the grade and surface level of said road or highway that had been established and maintained through said lands as hereinbefore set out, by excavating a part thereof to a depth of sixteen feet, and along in front of the buildings already mentioned, excavating the same to a depth of from five to nine feet.
    “And along other portions of said lands defendant has changed and altered the grade and level, so as aforesaid established and maintained, and caused the same to be filled to a height of fifteen feet at different points.
    
      “That by reason of the said acts of defendant the means of access to plaintiff’s lands, buildings and improvements, from said road or highway, and their access to the same from their said land have been greatly impaired and rendered inconvenient and difficult, and the value of their said property has been by reason thereof greatly diminished.
    “Plaintiffs say further that they held and had the right to hold 'and enjoy their said lands so as aforesaid improved without change or alteration in the relative level of said road or highway, subject only to the right of eminent domain to be exercised bjr the defendant representing the public in respect to roads, and the same to be exercised only in manner provided by law, suitable and adequate compensation being first made in money for the deprivation of private, rights and property.
    “The plaintiffs say that the defendant herein proceeded to-make the change and alteration as hereinbefore set out,, without notice to them and without having paid them any compensation in money for the same, and without having caused a jury to inquire into and assess to them such compensation as they, the plaintiffs, were entitled to in the premises, and without having in manner provided any means or tribunal to ascertain and assess the compensation and damages for the acts of defendant as herein before set out.
    “Therefore, and by reason of the premises, these plaintiffs, say that they are entitled to have a jury assess their damages, in the premises, and say they have been damaged in the sum of $1,500, for which amount they ask a judgment.”
    To the amended petition there was a general demurrer, which was sustained. To the ruling of the court sustaining the demurrer the plaintiffs excepted, and the plaintiffs not asking to plead further, judgment was rendered for the defendants.
    On petition in error the circuit court affirmed the judgment of the court of common pleas, and proceedings in error are here instituted to reverse the judgment of the circuit court.
    
      
      McClure & Smyser, for plaintiffs in error.
    If we can establish the proposition that private property was taken by the defendant, then, of course, we have established the right of plaintiffs in error to maintain some sort of action. A landowner has property and a private right in a highway adjacent to his lands. Jackson v. Jackson, 16 Ohio St., 168; Crawford v. The Village of Delaware, 7 Ohio St., 459; Street Railway v. Cumminsville, 14 Ohio St., 523; Parrot v. C., H. & D. Railway, 10 Ohio St., 624; Hatch v. The Railroad Company, 18 Ohio St., 123, 124; Simons et al. v. Cincinnati, 14 Ohio, 175, et seq. Ferris et al. v. Brambel et al., 5 Ohio St., 109; 3 Sutherland on Damages, 430, 446; 4 Wait’s A. and D., 623; 2 Field’s Briefs, Sec. 231 ; 4 Field’s Briefs, Sec. 291; 6 Wait’s A. and D., 301 et seq. Anderson v. Commissioners of Hamilton County, 12 Ohio St., 643; Lamb et al. v. Lane, 4 Ohio St., 161; Watson v. Trustees, 21 Ohio St., 667; McArthur v. Kelly, 5 Ohio St., 143; Foot v. Cincinnati, 11 Ohio, 408; Dodson v. Cincinnati, 34 Ohio St., 278.
    The act complained of the defendant, is the exercise of the power of eminent domain, and compensation or damages arise from such act in the same manner as if the power had been legally exercised. 34 Ohio St., 276; 18 Ohio St., 109; Cincinnati v. Penny, 21 Ohio St., 499.
    Can this action be maintained against the defendant in error ? In respect to roads, although they are intended for the public benefit, the power and the whole power in relation to them is conferred on the board of county commissioners. Badgely v. Commissioners of Hamilton County, 1 Disney, 316: Cincinnati v. Cooms et al., 16 Ohio, 181, 188 ; Lee v. Pembroke Iron Company, 2 Am. Rept., 59; Johnson v. Parkersburg, 37 Am. Rept., 779.
    We submit, that no respectable authority will be, or can be produced upon the proposition that a county, through its commissioners, may take, or subject, private property to the burdens of a public use, and receive the benefits thereof, without payment of the constitutional compensation therefor.
    
      
      John McSweeney, for defendants in error.
    The plaintiffs have not a cause "for action. This highway by lapse of time became vested. Dillon on Municipal Corporations, Sec. 629, and cases cited.
    The statute of limitations runs against individuals and in favor of the public and public corporations, in Ohio. 8 Ohio, 298; 5 Ohio St, 594.
    Why call this an action for appropriation, and why ask for a “respectable authority which holds that the county commissioners may appropriate private property for public use without pay ?” The defendants do not base their defense tO' this action, on the maintenance of such a proposition; but claim that by virtue of the adverse use of said highway for more than 21 years, the plaintiffs are estopped from bringing an action to appropriate said land for a highway, and the law will presume by reason of the lapse of time, an original appropriation or dedication of the land for said highway by the plaintiff or by those through whom he claims title.
    As to involuntary or quasi corporations, no private action (unless by statute) lies against quasi corporations for breach of duty; having no fund, each individual would be liable to satisfy the judgment. 1 Maine, 361; 36 N. H, 284; 47 Maine, 281; 7 Mass, 187.
    Boards of commissioners of counties are involuntary qausi corporations, being political and civil divisions of the state, created by general laws to aid in the administration of the state ^government. Cooley Con. Dim, 241; Symonds v. Clay Co., 71 Ill., 377; Commissioners v. Mighels, 7 Ohio St, 121; Dill. M. Cor. p. 962; Russell v. The Men of Devon, 2 Term R. (D. & E.), 667; 30 Ohio St, 37; 25 Ohio St, 305; 23 Ohio St, 600. Commissioners are not personally liablé, where they act in the honest discharge of official duty. 40 Ohio St, 617 ; 3 Peters, U. S, 409; 8 Barb, 645 ; 45 Ohio St, 401; 33 Ohio St, 451; Johns v. Cincinnati, 45 Ohio St, 279; Dun v. The Agricultural Society, 46 Ohio St, 93; 38 Ohio St, 522; 39 Ohio St, 346; 17 Ohio, 402.
   Dickman, J.

The first question that claims our consideration is,, whether the original petition states facts sufficient to constitute a cause of action for damages, in consequence of excavating and filling the highway to which the lands and buildings of the plaintiffs were adjacent. The general rule is well established in this state, that a municipality may become liable for consequential damages caused in grading a street. The owner of a lot abutting on a street has an easement in the street appendant to his lots whereby he is entitled to an unobstructed access to and from the street, and this appendant easement is as much property as the lot itself. This right of property vested in the owner of abutting land is subject, however, to the right of the public to grade and improve the street. ’But grades once established are presumptively permanent and cannot, it is obvious, be changed without causing injury and confusion. Elliott on Roads and Streets, 346. And, as is said in Crawford v. Delaware, 7 Ohio St., 471, “if, after establishing the grade, they block up or cut down the street before one man’s house for .the benefit of others, doing a substantial injury, the rights of property have been invaded, and the plainest principles of justice require compensation.”

The private rights, easement and facilities of the owner of lands in the adjacent highways, are not, upon principle, materially different from those of the owner of lots in towns and cities in the adjacent streets. But, in both instances, it is recognized as a fundamental principle, that if improvements are made on lots or lands in accordance with an established grade, and the grade is afterwards altered, and a substantial injury thereby done to the owner of such lots or lands, he will be entitled to compensation.

A grade line for a public road or highway may become practically established though not evidenced by legislative enactment definitely fixing the line. In Akron v. Chamberlain Co., 34 Ohio St., 336, it is said: “We are of opinion that the establishment of a grade whereby lot owners are justified in assuming that no change will be made in the grade of a street, and may, therefore, improve their lots with reference to its present condition, so that the municipality will be liable for injuries to their improvements, resulting from a subsequent change of the grade, does not necessarily require the passage of an ordinance or other legislative action; but it may be shown, by the nature of the improvement on the surface of the street, under the direction or sanction of the proper authorities, whether in accordance with an ordained grade line or not.”

And when a public highway has been so laid out as to indicate that it is designed for permanent use by the public without substantial alteration, and the owner of adjacent lands and buildings improves the same with due reference to the highway as thus established, and to its reasonable improvement in the future for the public convenience, if such owner's passage to and from the highway be thereafter impaired by a substantial alteration in the highway, it will be an injury to his property for which he will be entitled to indemnity. This is but a restatement of the rule announced in the opinion in Jackson v. Jackson, 16 Ohio St., 168; that súch owner has a private right of access to and from the highway; and, when he has made improvements on his land, with direct reference to the adjoining highway as then established, and with reasonable reference to its prospective improvement and enjoyment by the public, he has a private right of way, or passage, to and from the highway as it then exists; and any substantial change in the highway, to the injury of such passage or way, is an invasion of his private property; and this private right extends so far as the reasonable and convenient enjoyment of such improvements requires the use of the adjacent highway.

The record in the case at bar discloses as facts admitted on demurrer to the original petition, that the grade of the public road leading from Doylestown to Akron had been established, •kept and maintained in reference to adjacent lands; and the grade and surface of the road, and the plaintiffs’ lands, for at least fifty years preceding, and until the change of the grade and surface level of the road in 1884, had been kept and maintained at practically the same level. The plaintiffs’ lands adjacent to and along the road had, during the time above mentioned, been improved with suitable buildings thereon; and had been so improved, and the buildings erected and maintained with reference to the established grade of the road, and with reasonable reference to its prospective improvement and future enjoyment by the public. By reason ■of the established grade and relative level of the road, there was ready and easy access between the road and the lands and buildings of the plaintiffs. But, by changing the grade and surface level, in the manner and to the extent set forth in the petition, the means of access to lands, buildings and improvements from the road, and to the road from such lands, have been impaired and made inconvenient and difficult.

Upon an application to the facts stated in the petition, of the legal principles recognized and enforced in the decisions of this court, we are of the opinion, that the plantiffs in error had a right of action against the .defendants in error for damages in consequence of the alleged change and alteration in the grade of the road or highway.

But it is urged in behalf of the defendants, that the petition in the case sets forth a tort, and that, therefore, the action is not maintainable against the board of county'commissioners in their quasi corporate capacity. County commissioners have power to improve any state, county, or township road, ■or any part thereof, by grading, paving, graveling, planking •or macadamizing the same. Revised Statutes, section 4829. Having exercised the power granted by statute of changing the grade of the road or highwajq for the purpose of improving the same, there is no claim that the work was done in a careless manner, and no question consequently arises of negligence in the discharge by the defendants of their official functions. In their official capacity, as the representatives of the county, having improved the road for the public benefit by changing its grade, the sole question involved, namely, that of compensation by the county, to the owner of adjacent lands, gives rise to no inquiry as to any personal wrong, neglect, or default on the part of the commissioners.

The judgments of the circuit and common pleas courts should be reversed, and the cause remanded for further proceedings.

fudgment accordingly.  