
    (Second Circuit—Franklin Co., O., Circuit Court
    Sept. Term, 1894.)
    Before Stewart, C. J., and Shauck and Shearer, JJ.
    Theodore Leonard v. Thomas D. Cassidy et al.
    1. The owner of unimproved lots cannot maintain a suit to prevent the changing of the grade of a road or street upon which they abut.
    2. The nineteenth section of the bill of rights does not authorize the taking of private property for the purpose of making or repairing roads which shalll be open to the public without charge, except by proceedings pursuant to legislative authority for the assessment of the owner’s compensation.
    On Appeal from the Court of Common Pleas of Franklin County.
    On the demurrer to the petition.
    The substantial allegations of the petition are that the defendants Cassidy, McDonald and Bigger are the County Commissioners of Franklin county, and the defendant, The Etna Construction Company, a corporation organized under the laws of New Jersey, and doing business at Columbus, Ohio. The plaintiff is the owner in fee'of lauds described abutting on St. Clair avenue. The commissioners have entered into a contract with the Construction Company for the erection of a viaduct on said avenue in front of the plaintiff’s premises and over railroad tracks which cross it, the viaduct to be 21 feet above the tracks, the approach to be without retaining walls, and of such height and width that in view of the necessary slope, the base will occupy not less than. 9 feet of the.plaintiff’s premises, and the roadway will be 24 feet above the present grade of the street in front of the plaintiff’s premises. The lands of which plaintiff’s lots are a part were located and platted with reference to said street, and the existing grade thereof. By the proposed change of grade, and by cutting off the use of other streets in the vicinity, plaintiff’s enjoyment and means of access to his lots will be greatly impaired. St. Clair avenue is a public highway, open to the public without charge. There is no allegation that the plaintiff has improved his lots, or any of them, with reference to the existing grade. No proceedings have been instituted to appropriate the plaintiff’s lands, or any portion thereof, or any right therein. The prayer of the petition is that the defendants may be enjoined from the prosecution of the work of constructing the viaduct and such approaches until after they have appropriated and paid for the property of the plaintiff so to be taken.
   Shauck, J.

The complaint of the plaintiff is, that the defendants, without payment or appropriation, are about to interfere with his facilities for ingress to his property by substantially changing the grade of the street on which it fronts, and to occupy with the proposed fill a strip thereof nine feet in width-.

We are not prepared to hold that in any case the authorities having charge of streets and roads are required to appropriate the right to change the grade thereof, however well it may be established that an abutting owner may, in certain cases, recover such damages as he may sustain by reason of such change. If an improvement of this character is made wholly upon ground already owned by the public, the interruption which it may occasion to an abutting owner’s means of access may not be a taking of his property within the provisions of the 19th section of the bill of rights. Whether it is or not, the case does not require us to determine. The numerous cases in which the abutting owner’s right to recover the damages resulting from change of grades is recognized, all require as an indispensable condition to the right, the improvement of his property with reference to a previously established grade, or a reasonable grade. We are aware of no case in which a change of grade in front of unimproved lands has been regarded as the foundation for any form of action. Crawford v. Delaware, 7 Ohio St. 460.

Counsel for the defendants contend that the right to take the strip of the plaintiff’s lot for the base'of the proposed fill is conferred by the nineteenth section of the bill of rights, since the petition shows that St. Clair avenue “is a public highway open to the public without charge.” This section does not execute itself by conferring the power of eminent domain upon the commissioners or any similar board. It assumes that by the general grant of legislative power this incident of sovereignty is vested in the general assembly, and defines the modes, and limits the extent, of its exercise by that branch of the government. Lamb et al. v. Lane, 4 Ohio St. 167; Giesy v. The Railroad Co., 4 Ohio St. 308; Shaver v. Starrett, 4 Ohio St. 495; Ferris et al. v. Bramble et al., 5 Ohio St. 109.

It is, therefore, indispensable that there be a proceeding according to legislative authority for the assessment of the owner’s compensation. If we look to the act of April 11, 1893 (Local Laws, vol. 90, p. 170), we find authority conferred upon the commissioners “ to build a viaduct across the railroad tracks at the intersection of St. Clair avenue.” Authority to take property for the widening of the avenue is not expressly given. The act does provide that “in the exercise of their powers and the performance of their duties in that behalf, said commissioners shall be governed by the general statutes upon that subject, except in so far as their powers and duties are prescribed by this act.” But counsel agree that the statutes contain no authority for the taking of property for the widening of a street or road under the circumstances of this case. Whether they do i>r not, is, perhaps, not important, since it appears that no proceeding to assess the plaintiff’s compensation has been instituted by the' defendants.

G. J. Marriott, for plaintiff.

Geo. B. Okey and C. C. Williams, for defendants.

The plaintiff is entitled to an injunction restraining the defendants from encroaching upon this land as proposed. Though that is the extent of the relief to which he is entitled, the demurrer must be overruled.  