
    McQuigg et al. v. Cullins.
    
      Public highways — Effect of order of vacation by township trustees— Injunction will lie against closing, when — Right of Easement.
    
    1. The order of vacation of a township road by the township trustees, in a proceeding conducted under chapter III, title 7, of the Revised Statutes, has the effect to relieve the public from any duty to keep such road in repair. But such ord'er does not authorize the closing up or obstructing of the road against the objection of one who has acquired an easement in it.
    2. Where, in such case, the trustees ' and others threaten to obstruct or close up such road, injunction will lie. And if it appear that such threatened action will destroy the easement of an owner of adjacent land in such road, and no other road reasonably suitable to meet the necessities of such owner has been provided, injunction forbidding such obstruction or closing up of such road will be granted.
    (Decided June 22, 1897.)
    Error to the Circuit Court of Muskingum county.
    Action for injunction by Cullins to restrain the trustees of Muskingum township, Muskingum county, and one J. W. Lane, from closing or obstructing a township road. Tried on appeal in the circuit court. Judgment for Cullins, sustaining demurrer to the answer, finding the allegations of plaintiffs’ petition to be true, and perpetually enjoining defendants from closing or obstructing the road.
    
      B: A. Poioelson, and Frcmh A. Durban, for plaintiffs in error.
    If the probate court had jurisdiction of the original appeal, that is jurisdiction to try and determine the controversy, and it seems to us clear that it had, the defendant in error having tried his case in that court he cannot use a bill in equity to per' form the office of a petition in error and thereby review in Another action the correctness of the holdings of the court in an action to which he was properly a party. Buchancm ,v. Baker et al. 35 Weekly Law Bulletin, 183.
    It is no objection to the road laws that the statutes do not give a trial by jury in the first instance, that is before the trustees. If that right is secured by appeal to the probate court the constitutional 'requirement is satisfied. Lamb v. Lane, 4 Ohio St., 167; Cramer v. Railroad, 5 Ohio St., 140; Reckner v. Werner, 22 Ohio St-., 275.
    Section 4697, as construed by the court in the case of Buchanan against Baker, secured to the defendant in error his right to appeal and to have his compensation assessed. If the defendant in error saw fit not to put in any claim for damages or compensation, he waived it. Anderson v. McKinney, 24 Ohio St., 467. But in this proceeding the conclusive presumption is that the probate court correctly decided the case when it was before it.
    Section 4683 provides for the right to appeal from the vacation of a township road in like manner as provided in chapter 4, and chapter 4 makes ample provision for the protection of all the rights of an appellant.
    
      Thomas J. McDermott, for defendant in error.
    Our contention is that the right to use this road was the private property of Cullins; that it could not be taken from him without compensation; that the statutes providing for the vacation of roads make no provisions for compensation; that none could be given by the trustees or by the probate court, and that, indeed, the object was not to deprive Cullins of the use of the road but to relieve the public of its burden.
    So far the claim is not made that Cullins’ right to use the road is not private property, but it seems to be assumed that there was something for the deprivation of which he might be entitled to compensation, but which he has in some manner lost. Jackson v. Jackson, 16 Ohio St., 168; Bingham v. Roane, 9 Ohio St., 165; Railroad v. Naylor, 2 Ohio St., 235; Parrot v. Railroad Co., 10 Ohio St., 624; ReForest v. Wheeler, 5 Ohio St., 286; Smith et alY. The Commissioners, 50 Ohio St., 628; LeClercq v. Gallipolis, 7 Ohio, 218; Crawford v. Reletoare, 7 Ohio St., 460; Roberts v. Easton, 19 Ohio St., 78; Me Comb v. Akron, 15 Ohio, 474.
    Now, if the statute furnish no remedy, injunction is the proper remedy. Hays v. Jones, 27 Ohio St., 218. The injunction prayed for in this case is not against the vacation of the road, but to restrain defendants from closing or obstructing it.
    The owner of this land has a right of free and unimpeded ingress and egress on this road to and from his property, a right of passage to and from the outside world, rights peculiar to himself.
    
      Transylvania University v. Lexington, No. 3 B. Mon., 25; Anderson v. Twrbeville, 6 Coldw., 150; Indianapolis v. Croas, 7 Ind., 9; Warren v. Mayor of Lynn City, 22 Iowa, 351.
    There must be a law provided for this compensation. Lamb v. Lane, 4 Ohio St., 167 ; Shaver v. Starrett, 4 Ohio St., 494; Watson's Executor v. Trustees of Pleasant Township, 21 Ohio St., 667.
    The defendant Cullins cannot be estopped by not putting in a claim for compensation and damages ; for there was no law providing for its payment, and so it would be a vain thing to do.
    There was no adjudication and no assessment of compensation and there was no opportunity to procure either. No re-trial is asked for, but it is original and independent relief that is sought and that cannot elsewhere be afforded.
    But upon other and additional grounds Cullins is not estopped from making this claim now. Roberts v. Easton, 19 Ohio St., 78 ; 31 Ohio St., 623; Cincinnati v. Combs et al., 16 Ohio, 181; Gargan v. Railway Co., 12 S. W., 259; 3 Ben Monroe, 25.
   Spear, J.

The petition shows, among other facts, that the defendant in error, Henry Cullins, is the owner of two farms situate in Muskingum county. At the time of his purchase, and for more than sixty years, a township road led from the smaller farm to a county road; and this township road ever after, continued to be the only means of access to the smaller farm which was a separate tenement with buildings and improvements of its own; and is the only road leading from this farm to any other road. A new road has been laid off across the land of said lane, but its use by Cullins is not convenient, nor is it practicable except by the expenditure of a large amount of money. Plaintiff purchased upon the faith that the township road would remain forever open, paid full price, would not have bought except upon the faith that the road would so remain open; and at a great expense, put up a stable and dug a well and erected certain out-buildings thereon, and built a kitchen as an addition to the dwelling-house thereon, and located said improvements close, convenient to and with reference to the township road, which is yet in fair condition for use, and for many years has been in use by plaintiff, his tenants, and others.

The answer, to which a general demurrer was sustained, shows, among other things, that prior to March 6, 1893, a petition was presented to the trustees, signed by Lane and fourteen other residents of the township, asking for the vacation of the road. Of this Cullins had notice, appeared at the hearing, but entered no objection to the petition, and filed no claim for compensation or damages. The ease was heard on the date above named, and the trustees being satisfied that no injustice would be done by the vacation, and that the road had become useless, made an order in due form vacating the road. From this order, Cullins, appealed to the probate court. That court. heard the case, confirmed the proceedings and judgment of the trustees, affirmed their order, and entered judgment against Cullins for costs. This judgment remains in force.

The question, therefore, is, whether or not the order of vacation by the trustees authorizes the closing up of the road as against the objection of Cullins? We think the question must be answered in the negative.

As heretofore stated, the road was legally established, and has been in existence over sixty years. It has been used by Cullins over thirty years. It was a public highway, made so by statute, and' Cullin’s rights in it were, and are, such as adjacent owners have in highways. His predecessor in title was one of those for whose benefit the road was established. Presumably he contributed to the expense of its establishment. By this means he acquired an easement in the road. De Forest v. Wheeler, 5 Ohio St., 286. Cullins, therefore, when he purchased the land, purchased this easement as an incident to his estate. It is in the nature of private property, for the taking of which there is no right in the public, except upon awarding compensation. And, under the constitution, article I, section 19, this compensation must be made before taking. In cases of vacation, no compensation has been provided. Chaptei III, title 7, of the Revised Statutes (section 4671 to 4686, inclusive), relates to the establishment, alteration and vacation of township roads. But neither by these sections, nor by related sections in the chapter preceding or following, is there any provision for ascertaining or awarding compensation to one whose easement would be destroyed by the closing up of a road ordered vacated. There is no fund provided for paying such compensation, nor method pointed out whereby such fund may be obtained, even if the amount were ascertained. A demand for compensation before the trustees or the probate court, would, therefore, have been an idle ceremony.

If the taking of the easement without compensation is attempted, injunction is the proper remedy. Hays v. Jones, 27 Ohio St., 218. Where, however, another road, reasonably suitable to answer the needs of the complaining party, has been established, the chancellor might properly refuse the order of “injunction against closing up the old road. But such reasonable provision has not been made in ‘this case.

The effect of the judgment of the trustees ordering the road vacated, is to relieve the public from any duty to keep it in repair, but it does not authorize the trustees, or anybody else, to close the road up, or obstruct it, and thus deprive Cullins of the right to travel it.

Judgment affirmed.  