
    The Dayton and Western Railroad Company, v. Hugh Marshall.
    1. The probate court, under the Act of 30th April, 1852, to provide for com pensation to owners of property taken for use of corporations, has a special and limited jurisdiction, to be exercised in the cases, and in the mode prescribed in the act; and that court cannot, under an order of the court of common pleas, and to carry into effect that order, take jurisdiction of a case, or proceed in a mode not authorized by the act.
    2. In a proceeding under the act of 30th April, 1852, to ascertain the amount of compensation to be paid to the owner of property sought to be appropriated to the use of a corporation, such corporation is the actor, and may discontinue the proceeding, at any time, at least, before the submission of the inquiry to the jury.
    Error. Reserved in the district court of Preble county.
    The Dayton and Western Railroad company was incorporated February 14th, 1846. In 1850 the company commenced the construction of its road through the lands of the defendant, by his permission, and under an agreement that the damages should be settled by arbitration. An arbitration was had, but failed, the arbitrators being unable to agree upon an award. Marshall afterward, on the 12th of November, 1852, filed a bill in the common pleas of Preble county, for the purpose of compelling the company to proceed under the statute to appropriate the right of way, for an injunction, and other relief. In this suit, in April, 1855, the following order was made by the court:
    “ This cause coming on to be heard upon the demurrer of the defendant to the complainant’s bill, and the court being advised, do overrule the demurrer, and thereupon, by consent of parties, the defendant files his answer and submits to the-following decretal order, to-wit: That the defendant shall, within sixty days from this date, by their proper ofiicer, to-wit, the president of the .company, make out a statement containing a specific description of each parcel' of the complainant’s property and rights specified in the bill, which they have taken and occupied in the construction and for the use of their said railroad, and within the time aforesaid, they file-the same with the probate judge of this county, preparatory to an assessment of the damages sustained by the complainant by reason of said appropriation and use of his property for the purpose aforesaid, and the compensation which he ought to receive therefor, and further equities be reserved until the next term of this court, to which time this cause is continued.”
    The company afterward refused to comply with this order, but after certain proceedings in mandamus and for contempt, did, on the 17th of January 1856, by its president, file with-the probate judge a statement, under the following protest:
    “The Dayton and Western Railroad' Company, by its attorneys, comes, and protesting against the decretal order of the court of Common pleas, by which it is compelled to file this statement, and saving to itself the right to except to this proceeding and all orders or judgments under the same, at such times and in such manner as may be allowed by law, but acting under said decretal order,” etc.
    The statement showed on its face that the company, in the year 1850, had entered on the lands, and with the consent of the defendant, Marshall, surveyed and established the line of . its road, under an agreement that it should progress with the construction and completion of its road, and that the compensation to be paid, if the parties could not agree, should be left to arbitration. That under this arrangement, the company did go on and complete its road, some time in the year 1852. That the arbitrators appointed failed to agree, and Marshall filed his bill in the court of common pleas against the company, “ under which, by virtue of a decretal order of said court of common pleas, the said company further states that there is required for the perpetual use of said company so much of the lands,” etc.
    The case was set for trial by the probate judge on the 22d of January, 1856, and on that day action of the court was had, as shown by the following bill of exceptions:
    “Be it remembered that on the 22d day of January, 1856, this cause being called in the probate court of Preble county, the said Dayton and Western Railroad Company, by its attorneys, claimed the benefit of its protest reserved in the statement filed in this cause, and asked the court aforesaid, to dismiss these proceedings upon the following grounds, to-wit:
    “ 1. That this court has no jurisdiction of the case.
    “ 2. That these proceedings, and the form of action here brought, are inapplicable to the case.
    “Which motion was and is predicated on an agreed statement of facts of the case, signed by counsel for the parties, and herewith filed marked ‘ B,’ and, together with the papers and proceedings in the court of common pleas therein referred to, is made a part of this bill of exceptions. The agreement ‘ B,’ is as follows: ‘ In the proceedings pending in the probate court of Preble county, relative to the assessment of damages, wherein Hugh Marshall and the D. & W. R. R. Co., are the parties, in which proceeding said Marshall is seeking to recover damages for the ground and materials taken, and injuries sustained by him, in consequence of said company having constructed their railroad through his premises in said county, it is agreed by said parties, for the purpose of the proceedings now pending in said probate court, that in November, 1852, said Marshall commenced suit for damages against said company, in the court of common pleas of said county of Preble, for the ground and material so taken by said company, and the injuries so sustained by him; that in said suit in said court of common pleas, an order and decree was made that said company file a statement or description of the grounds so taken, by thé said probate court preparatory to an assessment of such damages by said probate court; that said suit in said common pleas court was continued and is still pending, awaiting the fulfillment of such order in said probate court; and that said company located their railroad through the premises of said Marshall, took possession of that portion of his premises now occupied by their railroad, and began to construct the same in the year 1850, and completed the sanie about the month of-in the year 1852. Grilmore, Lowe & Booth, attorneys for company ; Hubbard & Eoos, and Holt, for plaintiff.’ Which motion to dismiss, the court, after argument of counsel, overruled, and decided that this court has jurisdiction of this cause. To which ruling and decision, the railroad company aforesaid by its counsel excepted.”
    Further proceedings were had, which resulted in a verdict assessing the damages of Marshall at $1800, to which, under the direction of the court, the jury added $540, interest from the time of the appropriation. On which, a judgment was entered in the probate court.
    The case was taken by a petition in error to the court of common pleas, where the judgment was affirmed. A petition in error was then filed in’ the district court, which was reserved for decision to this court.
    
      W. J. Gilmore for plaintiff in error.
    
      Holt, Hubbard & Foos for defendant in error.
   Gholson, J.

The act of April 30, 1852, “ to provide for compensation to the owners of private property appropriated to the use of corporations,” confers a special and limited jurisdiction upon the probate court. It can only take jurisdiction of such cases as the provisions of the statute direct. To present a case for its action, a statement must be filed with the probate judge, showing that the corporation wishes to make the appropriation described, and is unable to agree with the owner of the property sought to be appropriated. The subsequent proceedings which the act authorizes, and especially the judgment which it directs to be entered on the ver diet of the jury, show that the object is to give the use and possession of the property which the corporation desires to appropriate, and not to provide a mode of assessing the value or worth of property, or interests in it, already in the possession of the corporation, under an agreement with the owner. The proceeding is also shown, by the provisions in relation to it, to be one in which the corporation is to be the actor, and, in analogy to other proceedings, we think, that at any time, at least before the submission of the inquiry to the jury, the corporation would have the right to discontinue.

Assuming these views to be correct, as applicable to an ordinary proceeding under the act, it is manifest that the present proceeding can only be sustained on the ground that it was had in virtue of the decretal order of the court of common pleas, in the suit in chancery pending between the parties. This leads to the inquiry, whether it was competent for the probate court to exercise a jurisdiction conferred, not by the statute, but by the order of another court. And we think it was not within the competency of the court of common pleas to confer, or of the probate court to acquire and exercise, jurisdiction in this mode.

It may be that the order of the court of common pleas might have been enforced by requiring the company to present the case in such a form as to show one proper for the jurisdiction of the probate court, and by restraining the company from discontinuing the case after it had been once commenced. But this could only be done by acting on the company, and not through the aid or instrumentality of the probate court. That court could only regard what the company in fact did, and not what it ought to have done, in obedience to the order of the court of common pleas. The probate court could only look to the statute under which it was acting, and govern itself by the provisions of that statute. The order of the court of common pleas could not warrant a deviation from those provisions.

It is argued for the defendant in error, that the company was in the probate court of its own choice, and its answer and the decretal order in the chancery suit, are relied on as showing that the proceeding in the probate court was with its consent. Consent can not give jurisdiction where jurisdiction can not properly be taken. We are to determine as to the wish of the company and the character of the case from its statement in the probate court, and not from anything that may have previously occurred. That statement-shows that the company were acting under compulsion, and not willingly; that it already had possession of the land, under an agreement with Marshall; and that the only question was one of compensation for property already appropriated by that agreement. The statement shows an unwillingness to come into the probate court, and the record discloses an anxiety to get out; and this anxiety was manifested by a motion to discontinue the proceeding, which motion could be properly refused only on the ground that the other party had the right to have the proceeding retained, to carry into effect the order of the court of common pleas, and secure a recovery of damages for the use of land already in the possession of the company.

The suit in chancery presented a proper case for relief. Justice required that the failure of the arbitration should not prevent Marshall from obtaining a just and proper compensation for any loss or damages he had sustained from the occupation of his land by the company. But if this occupation was had under an agreement to pay such damages, it is very questionable whether it would be right to apply, for their ascertainment, a measure or rule not recognized at the time of the transaction, but which subsequent legislation, not within the contemplation of the parties, brought into existence. If there was such agreement, the court of common pleas might have ascertained the damages by reference to a master, or by an issue framed for the purpose, and to be tried in that court. But we are aware of no law which could authorize the common pleas to send, or the probate court to receive, any such issue; and we are satisfied that the law does not permit the proceedings of the probate court, under the act providing for the appropriation of private property to the use of corporations, to be controlled or modified by an order of the court of common pleas.

Our conclusion is, that the jurisdiction of the probate court, in the proceeding under examination, can not be sustained. The judgment must be reversed, and the proceeding in the probate court be dismissed for want of jurisdiction.

Judgments of common pleas and prolate court reversed; and proceeding in probate court dismissed for want of jurisdiction.

Scott, C.J., and Sutliff, Peck and Brinkerhoff, JJ., concurred.  