
    *Thomas Hueston v. The Eaton and Hamilton Railroad Company.
    The owner of land regularly appropriated to the use of a railroad company, upon proceedings instituted by the company, under laws providing therefor, is barred of the common-law remedy to sue for and recover the damages he may have sustained by the entry of the company and the construction of their road upon such land.
    In such case, the bar is equally effectual, although the owner may have refused to submit to such proceedings, or to receive the amount awarded to him and deposited for his use.
    Error to the court of common pleas of Butler county.
    The original action was brought to recover from the defendant, for the construction of its railroad upon 'the lands of the plaintiff, by which he claimed he was damaged f 4,000. The defendant pleaded to the declaration, and the third plea upon which the decision of the case turned was, in substance, as follows: 11 For a further plea the defendant comes and says, that the plaintiff ought not to maintain his action against it, because, by virtue of the power and authority conferred-upon it by an act of the general assembly of the State of Ohio, enacted on the 7th day of March, 1851, entitled ‘ an act to amend and consolidate the several acts relating to the Eaton and Hamilton Company,’ which said act was afterward, to wit, on the first day of April, a. d. 1851, at Eaton, in the county of Preble, and State of Ohio, to wit, at Butler county aforesaid, accepted by the board of directors of said Eaton and Hamilton Bail-road Company, by a journal entry to that effect, regularly made upon the journal of the proceedings of said company. The said defendant did heretofore, on the 20th of April, 1851, enter upon the lands of the plaintiff, for the purpose of examining and surveying the line of the said railroad, and the said defendant then and there ascertained that it was necessary to appropriate, and did appropriate, to the use of said*eompany, a strip of land 100 feet wide, through the plaintiff’s land, for the distance of 3,402 feet, more or less,containing twelve andfour-tentks acres, more or less, with the privilege of removing and using a sufficient quantity of earth and other material, except timber, within said limits, to make and construct said railroad; and to restore the crossing of the turnpike over the said railroad, the same to be used as a way and bed for said railroad, of tbe width of one hundred feet, with grades, excavations, embankments, drains, and culverts; allowing the said plaintiff, his heirs and assigns, to pass and repass over the same in a reasonable manner, not interfering with the rights and interest of said company. And the said defendant further says, that upon the making of said appropriation, the defendant did forthwith, on the 10th day of July, 1851, file with the clerk of the court of common pleas of said county of Butler, a description of the rights and interest so appropriated, as such description remaining on file in the office of said clerk, will fully and at large appear. And said defendant further says, that the said railroad company did, upon making the appropriation aforesaid, to wit, on the 11th day of July, 1851, deliver to the said Thomas Hueston, a copy of the said act or instrument of appropriation, and that thereupon, the court of common pleas of Butler county not being then in session, Nehemiah Wade, Esq., one of the judges of said court, did, upon the application of the defendant (of which application the said Thomas Hueston had due notice), by his warrant duly issued, appoint Fergus Anderson, James W. Cochran, and G-iles Richards, three disinterested freeholders of the said county of Butler, to appraise the damages which the said Thomas Hueston would sustain, by reason of the appropriation of the premises and rights aforesaid, of which appointment the said Hueston had due notice. And defendant further says, that by virtue and in pursuance of the command of the warrant aforesaid, afterward,, on the 14th day of July, 1851, the said freeholders having been first duly sworn, at the time and place named in the warrant, %nd having fully heard the parties, did, on actual view and upon full consideration of the premises, appraise the value of the land of the said Thomas Hueston, so appropriated and taken for the use of said defendant’s railroad, at the sum of nine hundred and thirty dollars, and the damage done, by reason of said railroad to the said tract of land, at three hundred and seventy-eight dollars — making, together, the sum of thirteen hundred and eight dollars; and the said freeholders appraised the benefits which would accrue to said tract of land, by the construction of the railroad, at three hundred dollars, and the difference being one thousand and eight dollars, the said freeholders assessed that sum as the damages of the said Thomas Hueston in the premises, and made return of the same, under their hands and seals, to the clerk of the court of common pleas of Butler county, by whom the same was duly filed and recorded.
    
      “ And defendant further says, that the said railroad company paid into the hands -of the said clerk, to and for the use of the said Thomas Hueston, on the 18th of July, 1.851, the sum of one thousand and eight dollars, as his damages aforesaid. And thereupon, by virtue of the provisions of the said act, it became and was lawful for the said defendant to hold the interest in the lands and materials aforesaid.” The plea then alleges that, in the construction of the said railroad, the acts were rightfully done of which the plaintiff complains, and prays judgment if the said plaintiff ought to maintain his action. The plaintiff replied that the matter, in the introductory part of the plea, had been wrongfully done by the defendant without the consent or acquiescence of the plaintiff, and in defiance of the objection and protest of the said plaintiff, and, therefore, he ought not to be barred of his action in the premises. The court sustained the plea of the defendant, whereupon this writ of error was brought.
    
      Vance, for Hueston.
    -, for railroad company.
   *Ranney, J.

The third special plea of the defendants sets up a regular appropriation of the lands of the plaintiff for the track of their road, and a deposit of the sum awarded him, with the clerk of the court, for his use. To this he replied that the assessment was made without his consent and against his protest, and that he then refused, and still refuses, to receive the sum awarded in satis-' faction of the damages claimed in the declaration. The demurrer to this replication having been sustained, and judgment given for the defendant, his counsel now insists that the assessment provided by the statute for property taken for public uses, is cumulative merely to the common-law remedy by action, and unless acquiesced in by the owner, and the amount awarded received by him in satisfaction, is no bar to the common-law remedy, and, consequently, no bar to the present action.

We can not yield our assent to this position. Before a case for an election of remedies can arise, there must be a wrong requiring a remedy. A right of action must exist before the party can choose, as between two modes provided by law for obtaining satisfaction. In the case before us, as it is made to appear by the pleadings, no -wrongful act has been done; no trespass upon the plaintiff’s property lias been committed, and, consequently, no right of action over existed in his favor. The defendants have regularly appropriated his property to a public use, and before taking possession, or otherwise interfering with it, have paid him its full value in money, as provided by law. The public, as it lawfully might, has compelled him to submit to a forced sale of the property to be applied to a public use. But in all this, no legal wrong has been done; it was but the exercise of a lawful authority, and lawfully and regularly pursued. He has but submitted to one of the conditions upon which all property is holden — the sovereign right of the state to appropriate it to -public uses when necessary, upon making compensation. His right to compensation was perfect and absolute; but when these proceedings were had, under the former constitution of the state, *no court or jury was required to [689 fix the amount. Any fair mode of assesssment, provided by law, was sufficient. Willyard v. Hamilton, 7 Ohio, 115 (pt. 2); Work v. The State, 2 Ohio St. 307.

After the amount was regularly ascertained, and paid or deposited for the use of the owner, the title to the property, or such interest as was necessaiy for the use of the company, passed from him to the company, to be held in trust for the public, just as fully and effectually as though he had voluntarily conveyed by deed. In afterward entering upon it, they entered upon their own land, and not upon his; and used it as lawful proprietors, and not as trespassers.

If they had taken possession without making compensation, a very different question would be presented. Although that constitution did not provide that the compensation should be made before the property was taken, still it would seem to be doubtful whether the property could be appropriated until it was done, and whether the company might not bo treated as wrong-doers, and, as such, subjected to a common-law action, at the election of the owner, instead of a proceeding, on his part, under the statute. But even upon that state of facts, the case of Hickcox v. The City of Cleveland, 8 Ohio, 543, supported by numerous decisions in other states, would seem to confine the owner to the statutory mode of assessment. Upon that question, however, we express no opinion. All we decide is, that where the corporation itself institutes the proper proceeding, and regularly appropriates the property by making compensation, no right of action arises against it$ and that such proceeding is equally effectual, whether the owner submits to it or not, or whether he takes or refuses the money deposited for his use.

The diversion of the water-course was a necessary consequence of making the embankment, and fell within the appropriation for which compensation was made, and seems to be fully justified by the plea.

Judgment affirmed,.  