
    Chagrin Falls and Cleveland Plank-road Company v. William Cane et al.
    A supervisor of highways has no jurisdiction or power over turnpikes or plank-roads, constructed by incorporated companies, and placed by law under their control; nor could he justify interference with such roads, although it should be directed by the township trustees.
    When a company, incorporated for the purpose of constructing a plank-road, is authorized by its charter to take possession of public roads for this purpose, and has constructed its road as required, and it has been accepted by the proper public authority, and the company permitted to erect its gates, any part of the public road so taken, is effectually withdrawn from the jurisdiction of the supervisor, whatever liabilities the company may have incurred to individuals, for a failure to appropriate their interests in a legal manner.
    *The interest of the public in such roads, consisting of a perpetual ease-merit in the land covered by them, for all the actual uses and purposes of public travel, may, at the discretion of the general assembly, be transferred without any pecuniary equivalent to a plank-road company; such plank-road still remaining a public highway, and subject to the same uses and purposes as before.
    In such case, the company becomes the assignee of the public, and lawfully possessed of the same interest the public had.
    Such change of the mode of supporting an existing highway, can not be presumed to affect injuriously the rights of the proprietors of lands over which it passes, and if such injury is claimed to have resulted, it must be proved.
    Action of trespass—appealed to the district court of Cuyahoga ■county, and reserved for decision here, on motion for new trial.
    The facts upon which the case went to a jury in th.e district court, were contained in an agreed statement, of which the following is the substance:
    H. C. McCullock, one of the defendants, was elected and qualified supervisor of highways, for the district in which the alleged trespass was committed, on the first Monday of April, 1851, and the clerk of the township delivered to him a rough draft of his district —the said township having been theretofore divided into districts by the trustees of said township, according to the statute. Prior to the alleged trespass, McCullock duly notified the other defendants, who were residents of the district, to appear in said district, at its west end, and about fifty rods west of the toll-gate on said road, on the day of the alleged trespass, and labor on said highway; and, accordingly, McCullock and the other defendants, with a number of other residents in said district, appeared and proceeded to work on said highway, pursuing an easterly course on said road, and making such repairs on the same as McCullock deemed proper and needed, until they arrived at the toll-gate on said road. The said gate was connected with a house standing in the highway in part on its northerly side, with a projection from the dwelling to the middle of the road, in which the gale.was raised. A fence ran from the gate and the projection to the southerly side of the road, to prevent teams and cattle passing around the gate. Some *three or four days previously, the supervisor had notified the gate-keeper that this fence and gate must be removed by the plaintiffs, or he, as supervisor, would have to do it. The gate-keeper had, as requested, notified the president of the company of this fact, and the company refused to remove the obstruction, and instructed the gatekeeper to forbid McCullock or any other person removing it. When tbe defendants arrived at tbe gate, McCullock asked the gate-keeper if he had informed the company-. The gate-keeper replied that he had, and that the company would not do it. McCullock then stated that he should have to do it, or cause it to be done, in the discharge of his duty as supervisor of highways. The gate-keeper forbade his doing it. The supervisor, as such, then directed the other defendants to take up the board fence before mentioned, which they did by taking up the post and fence all together; they set it up against the fence by the side of the road, doing no damage to the fence or boards. "When the fence had been thus removed, teams and cattle could pass on the road, without going through or under the gate. This was the act complained of in the declaration. The fence was placed back in the same place the next day by plaintiff’s agent.
    It was admitted that the plank-road was at this time in good repair.
    Prior to laying down the plank on that part of the road which was within the said district, the company had endeavored to procure the right of way, at this point, ,of the owner of the fee of said highway, and permission to put the plank on said road; and, except as to the ground where the toll-house stood, on the north side of the road, “ was refused either permission or a grant of the right of way.”
    It is necessary to observe that the road, when taken into possession by the company, was “ a state road and legal highway, within the meaning of the statutes of this state.”
    The company had not, before the laying of the plank or erecting the gate, obtained the right of way either by agreement with the owners of the fee of the road, or by obtaining *the same through a committee, as provided in its charter, or in any other way, but had laid down its plank against the will of the owners of the fee in said district, and after having been forbidden by them. The owner of the fee where the fence stood, had forbidden the putting up of the fence.
    No question, however, as to the right of way, or the right or permission of said company to construct said plank-road over the line of said highway in said district, was made or raised until after the company had constructed the first five miles of said road-—that is, from the city of Cleveland—and had erected their first toll-gate at Newburg.
    
      It was admitted that the company constructed its plank-road according to the provisions of its charter, etc., unless the taking possession of the road, without taking steps to assess damages, or procure the right of way as aforesaid, was not in accordance with said charter. And that, “ after the completion of the respective portions of said plank-road, the company caused a committee to be sent out, to ascertain whether said plank-road had been constructed according to the provisions of said charter; that said committee reported said plank-road had been so constructed; and that thereupon said company erected 'its toll-gates and toll-houses, and fixed upon and advertised its rates of toll, and appointed its toll-collectors; and all according to the provisions of its charter. . . That in all other respects not hereinbefore specified, said company had been conducted and governed according to the provisions of its said charter.” For this charter, see vol. 47, p. 86, and vol. 43, p. 49, Local Laws.
    It was further admitted that “ prior to the commission of said, alleged trespass, the said McCullock applied, with the said plat so delivered to him by the clerk as aforesaid, to the trustees of said-township, to ascertain whether any alteration had been made in said district No. 2, and whether that portion of the highway where the gate and fence stood, was in district No. 2 or not, and was informed-by the trustees that-there had been no change made, and that that portion of the road was in his district; and the records of said township show no change.”
    *The verdict having been given for the plaintiffs, the defendant, for reasons shown in the opinion of the court, moved fora new trial.
    
      Williamson & Middle, for plaintiffs.
    
      Bolton, Kelly & Griswold, for defendants.
   Ranney, J.

This action was brought to recover damages for-removing certain fixtures attached to a toll-gate belonging to the-plaintiff.

The defendant, McCullock, as supervisor of the road district, and the other defendants as his servants, and under his direction, justify this removal, as an obstruction to the highway. Under a charge of the court, adverse to the sufficiency of this justification,' a verdict for nominal damages was found for the plaintiff; and the-defendants now move for a new trial upon two grounds:

1. That the supervisor was a mere ministerial officer, acting by, and in pursuance of, the authority given him by a body (the township trustees) having jurisdiction of the subject matter, and, therefore, that he and those acting under him are not liable in trespass.

2. That the plaintiff had no right to appropriate and use a public highway for the purposes of its plank-road, without first having made compensation for the damages to the parties injured, by reason of such appropriation; and that having no right in the public highway, its fence was an obstruction which the supervisor might lawfully remove.

The evidence upon which the cause was submitted to the jury, is contained in an agreed statement, signed by the counsel, and will b e found in the statement of the case preceding this opinion.'

Assuming the company to have been legally organized, and in lawful possession of the locus in quo, under its charter, there is very little difficulty in disposing of the first cause assigned in the motion. The supervisor, it is true, is a ministerial officer. He receives a rough draft of tho boundaries of his district, and a list of the road taxes to be paid within *it, and is bound to superintend the work upon the roads, and to keep them open, unobstructed, and in repair. So far as he executes these duties under the direction of others, having jurisdiction over the subject-matter, with no power to inquire into the regularity of their proceedings, or to control their action, he would seem to be within the reason of the rule laid down in Loomis v. Spencer, 1 Ohio St. 153; and would undoubtedly be protected by it. But his power only extends to the “public roads ” laid out and established in his district, and he has no more authority over the plank-roads and turnpikes-constructed by and placed by the legislature under the control of companies incorporated for the purpose, than he has over the farms and dwellings of those who may reside within his jurisdiction. He is bound to know what roads belong to the public, and what to such companies; and we see no hardship in requiring him, like every other citizen, to take notice of the laws of the land, and of the actual occupancy of those to whom such turnpikes or plank-roads may belong.

Nor is there much more difficulty in deciding the other cause assigned, without reaching the question mainly discussed by counsel. The company was certainly duly incorporated; and it is agreed it had constructed its plank-road, in all respects, according to the? provisions of its charter, unless taking jjossession and laying its plank upon what was then a state road, without assessing or paying any damages to the owners of the fee of the land over which the state road had been laid many years before, was unauthorized by it. It is further agreed, that after the completion of the road, a committee was duly appointed, as provided by law, who reported the road built according to the provisions of the charter; and that thereupon the company erected its toll-gates, etc., and that the road was in good repair at the time the injury complained of was done. It is not seriously denied, and certainly can not be, that the company was authorized by its charter to take possession of, and appropriate public roads, when necessary, for the purpose of constructing the one it was authorized to build.

*Under such circumstances, it seems to us very clear that the state road at the place in question was withdrawn from the jurisdiction of the supervisor, whatever liabilities the company might have incurred to individuals for a failure to appropriate it in a legal manner. He is but a public officer, charged with the performance of public duties, upon the roads belonging to the public; and when the public, whose officer he is, authorizes such roads to be taken, and by its constituted authorities approves the appropriation, by allowing the company to take possession and erect its gates, it effectually relieves him from all responsibility in respect to them, and divests him of all power over them. It is no part of his business to vindicate the rights, or redress the wrongs, of private individuals ; nor can he, in this collateral manner, legitimately •draw such rights into controversy, or insist upon them to justify -an unwarrantable interference with the property of the company.

' This view of the subject disposes of the case, and renders it ■strictly unnecessary to go further; but as counsel have supposed the legality of the appropriation to be involved, and have fully discussed that question, we have concluded to express our opinions aipon that aspect of the defense, as though the controversy had •arisen between the owner of the fee over which the road passed, ;and the company.

Section 7 of the act incorporating the Milan and Richland •Plank-road Company, which is made to govern this company, provides :

“ It shall, and may be lawful for said directors to enter upon, and take possession of, any lands, roads, streets, alleys, stone, timber, and earth necessary for the laying out and construction of said plank-road, and all necessary appurtenances and appendages, doing no unnecessary damage, having first tendered or secured to the party injured the value thereof, or the damages sustained by said appropriation ; and in case any land or materials, etc., are wanted to be .appropriated for the purposes aforesaid, shall not be given,” etc. The mode in which the appropriation may be enforced is specifically ^pointed, out. It is quite evident the legislature intended by this section, as the constitution required, to provide for making full satfaction to the owners of private property before it could be taken by the corporation; nor am I disposed to doubt, that it would be incumbent upon the company to satisfy any damages that an individual might sustain to his property, by reason of the change írom a state to a plank-road, before such change could be lawfully made, although no property was actually taken. But while private rights were thus amply secured, it is clear that no compensation for the public interest was expected or required. That interest, like all others of like character, was subject to legislative control, •■and might be disposed of at the discretion of the general assembly, without any constitutional restraint, whatever may be thought of •the justice or propriety of its action. The true inquiry, therefore, is: Has this company taken and appropriated to its uses anything more than the public interest in the state road? If it has, or has in any manner taken or injured the property of individuals, without making compensation, it is in the wrong, and liable to them for nil the consequences. What, then, were the respective interests of the public and the owners of the soil over which this road passed?

The public had acquired, and, we are bound to suppose, had paid for, to the satisfaction of the owners, a perpetual easement in the land covered by the road, which gave the right to all persons to pass and repass over it at pleasure, either on foot or by any mode •of conveyance they might see fit to employ; and also the right to improve it, for that purpose, in any manner that might be thought, by the legislature, most conducive to the end in view, and would best subserve the interests and convenience of the public at largo.

The owners retained the fee of the land subject to the easement, and the right to use it in any manner not inconsistent with the full and perfect enjoyment, by the public, of the interest acquired by it, so long as it continued to be used for that purpose.

*As the interest of the public was acquired for defined objects and specified purposes, it seems very clear that the land could not be diverted to other purposes, or used in a manner substantially different from that for which it was appropriated, without relieving it from the incumbrance, and restoring the owner to the absolute-dominion he had before it was taken.

But it is equally clear that there has been no substantial change of the uses to which the land was subjected, or of the rights and interests of the owners, by the transfer of the public interests to the uses of this company. It was a public highway before, and is a, public highway still. 1 Ohio St. 95; 16 Pick. 175; 12 Met. 458. It, was subject to certain'uses before, and is subject to precisely the-same now. Before, the public had the right to construct the road: or improve it in any manner deemed expedient or necessary; and the company now have the right, and are bound to construct it in. the manner provided in its charter, and to keep it in repair.

The interest of the public extended no further than was necessary to accomplish these objects; and in the accomplishment of the same-objects, the company now require no greater interest, and are limited by the same necessity as the public, before the transfer was-made. Before, the owner still retained the fee in the land, with the right to occupy it in any manner not inconsistent with the public-use; and his interest and right of occupancy is no less now.

, Before, it is true, the road was placed under the control of public-officers, and supported by a tax laid upon the persons and property of the vicinity; now, it is placed under the control of a company incorporated for the purpose, and supported by a toll exacted from those who use the road. But this is only using other instrumentalities, and raising the necessary funds by other means, to accomplish the same lawful purpose; and in no respect changes the public-character of the improvement, or the relation of property-owners, to it.

*That the legislature then possessed unlimited discretion in the choice of means and agencies for the accomplishment of such objects, has been judicially determined in the case of Cincinnati, etc., R. R. Co. v. Clinton Co., 1 Ohio St. 95.

If, instead of adopting this means and agency, it had seen proper to raise a tax to plank the road, through the agency of the supervisor, and had erected gates upon it, and exacted tolls to reimburse the expenditure, no one could have doubted the power to do so, however much the policy of such a course might have been questioned.

But it is very positively asserted that the property-owners have been injured; and as the record discloses no particular damages to have resulted from planking the road, and as no property has been taken from them, and they, evidently, retain the samé interest as before, it is said we are bound to presume such injury, from the fact that what was before a free road, is now a toll-road. How this injury would have been less, if the state or county had constructed the road, and exacted tolls upon those who use it, to pay for it, than by attaining the same end, by the same means, through the agency ■of a corporation, is not easily perceived. But how are wé to pre-sume that any one has been injured? We are bound to suppose, the general assembly, in full view of the facts, and with absolute power over the subject, intended a benefit instead of an injury, when they created the corporation, and authorized it to construct the road, paying itself for the expenditure by reasonable tolls upon those who might find it for their interest or convenience to use it. If the general assembly was not mistaken, those residing upon it w-ould be likely to reap a full share of its benefits; but if they were mistaken, and it is really an injury, such persons only share it in common with the balancé of the community, and not, surely, in a larger degree, since they are relieved from the burden of keeping it up, than those who are compelled to use it, and at the same time compelled to keep up the public roads of their own neighborhoods.

But all such considerations are too intangible to base judicial ^action upon.- Individuals may suffer from bad legislation; but it is damnum absque injuria, and no appeal can be taken from the law-making power to the courts, for relief. Such injury, in this case, is only a possible result—it is neither probable nor proved; but if it was not only probable, but proved, so long as no property was taken, or rights of property affected, I should still be of opinion, that no remedy could be had through the judiciary.

The views we have presented are fully sustained by the adjudged -cases cited in argument.

In the case of Murray v. Commissioners of Berkshire, 12 Met. 456, a turnpike road had, with the assent of the corporation, been ■changed to a common highway, without again appropriating the land over which it passed, to the latter use. It was claimed that the land, upon the discontinuance of the turnpike, reverted to the owners, discharged of the easement, and could only be appropriated, for the purpose of a common highway, upon making full compensation. But the claim was disallowed, and an application for a writ of mandamus, to compel the assessment, dismissed; not, as counsel suppose, because the proper remedy was not pursued, but upon tho merits. Several formal objections were made; but Chief Justice Shaw, after alluding to them, says: “We have thought it best to pass these all over, without further notice; because the court are of the opinion, that upon the main question, which involves the merits of the case, the claim of the petitioners is not well founded.” He then proceeds to show, that “the proprietors had already been paid for a perpetual easement over their land, for all the uses and purposes of public travel; ” that the corporation, having thus paid the owners for it, “ transferred it to the public, under the sanction of law, and -thereby the public became their assignees; ” that it was hardly a change of the use, but “ rather a change of the mode, in-which an existing highway should be supported, repaired, and maintained ; ” that “ a turnpike is a highway, which all the public have a right to use, which no one has a right to obstruct, not even the-^corporation that built it, except so far as they are expressly authorized by law to do so, in order to secure the tolls granted them that “ the change of a turnpike to a common public highway, is rather a continuance of the same public easement, under a modification of form, not in general affecting the rights of proprietors of lands over which it passes;” and that, without such change, the lands would have stood charged “ with a perpetual easement for a public way, neither smaller nor less enduring than that with which they are now charged.” Such is an'outline of this opinion, given in the language of the court; and if it is admitted to be a correct exposition of the law, it must be deemed conclusive of the question we are considering.”

It is true, the statute of Massachusetts, as I have expressed the opinion this statute does, allows the owner indemnity for any damages arising to his property from the change; but the case is full to the purpose, that “ in general, such, a change will occasion no damage;” and if it is claimed to have resulted, it must be distinctly proved, and can not be presumed.

In the case of Benedict v. Goit, 3 Barb. S. C. 459, a common highway had been taken by a plank-road company, under authority of a legislative enactment, upon paying the commissioners of highways for the public interest. The plaintiff, an owner of land over which it passed, claimed the enactment to be unconstitutional, and that the road,11 since its appropriation by the company, had ceased to be a public highway, and, therefore, that the entire interest in it had reverted to him as the original owner.” The court affirmed the constitutionality of the law; and after stating the position of the defendant’s counsel to be, “ that the road in question in this suit is a public highway still, open for the public use, precisely as every public road in the state; and that the corporation organized by the act before cited, has succeeded to all the rights and powers of the commissioners of highways, in the several towns through which the road passes,” say, “we are of this opinion.”

*In this case, compensation for'the public interest was required to be made; but whether such interests shall be granted with or without compensation, is a matter within the sole discretion of the general assembly, and however exercised, lays no ground for legal complaint on the part of private individuals. In every view of this case, therefore, taken by the defendant’s counsel, we are of opinion the law was correctly given to the jury, and that the verdict is entirely consistent with both the law and the evidence.

The motion for a new trial must be denied.  