
    Board of Education v. Board of Education.
    
      Distance from residence to schoolhouse — How measured — Section 4022a, Revised Statutes.
    
    The distance of its residence from the school of its district, which under section 4022a, Revised Statutes, entitles a child of school age to attend the school of another district, is one and a half miles by the most direct public highway from the school to the nearest part of the curtilage of its residence-
    (Decided April 19, 1898.)
    Error tc the Circuit Court of Darke county.
    The plaintiff in error seeks the reversal of a judgment of the circuit court affirming- a judgment of the court of common pleas.
    The judgment of the court of common pleas was rendered in favor of the defendant in error in an action brought by it to recover upon the following facts appearing in the petition and answer:
    Ralph and Hollis Coblentz are children of school age residing in sub-district number eight in Butler township, residing more than one and a half miles from the school in the district of their residence. The school in the Eldorado village district is the nearest school to their residence. They were permitted to attend the intermediate grade of the school of the village district, that grade being below the high school. The expense per capita of ‘running’ ’ said intermediate school was $11.50. The payment of $23.00 was demanded and refused before suit.
    The answer admits that the residence of the children is more than one and a half miles from the school in the district of their residence, if the distance is ascertained by measurement along the “nearest” public highway; but avers that it is less than one and a half miles if measured in a direct line, and that the land owners along such direct line have always permitted the children to follow it in attending school, and that it is a convenient and “practical” route for them to travel.
    
      Allread da Teegarden, for plaintiff in error.
    It is contended by the plaintiff below that the statute contemplates measurement only along the public highways, while on the part of the defendant below it is contended that the distance by direct line or at most, the nearest way of access by accustomed path or private or quasi public way is contemplated.
    Any person can avail himself of section 4672, and have a road laid out from his residence to the schools, or a board of education may lay out such a road where desired, so that ample provisions exist for a reasonable and proper way to the school from every quarter of the district.
    The terms employed “reside farther” and “nearest’ ’ in their ordinary acceptation allude to distance measured in a direct line, or in common parlance “as the crow flies.”
    The statute does not indicate any other but the usual method of measuring distance. If the purpose was to measure • the distance of travel by public road, the legislature would have so indicated by using instead of the words ‘ ‘who reside farther, ’ ’ etc., some such phrase as this: “Who are compelled to travel over public highways farther,” etc. Amer. & Eng. Eney. of Law (5 volume, page 704, first ed.).
    In England this question came up, and after considerable contention was settled in favor of a direct line or “as the crow flies.” Wood v. Dermett, 2 Stark, 89; Leigh v. Hind, 9 Barn. & C., 714; Reg v. Saffron, Waldon, 9 Q. B., 76; Stokes v. Grissel, 14 Com. B., 678; Lake v. Butler, 5 E. & B., 92; Jeioel v. Stead, 6 A. & E., 300; Smith v. Ingraham, 7 Com., 419.
    In a recent English magazine (60 Justice of the Peace, 706), the doctrine is maintained that “dis-tan ce is measured as the crow flies. ’ ’ General Dig. (1896), volume 2, page 382.
    The opinion in Lear v. Halstead, 41 Ohio St., 566, holding that the tax district in the one mile assessment turnpike act was bounded by a “line drawn from the terminus at right angles with the last course of the road,” gives support to the contention that when no other is clearly indicated, the geometrical plan of measuring courses and distances prevails.
    
      James A. Gilmore and D. W. Younker. for defendant in (error.
    Our claim is that the plain, common sense view of the provisions of the section requires that the distance should be measured by the nearest practical traveled route.
    (.a) If the claim of counsel for plaintiff in error, to the effect that a straight line is the only way to measure the distance, is right, then why rely on the statement that the land owners will permit the pupils to pass through their premises, and that the route is practical?
    (6) There can be no question but that every time a pupil passes upon the lands of another, without permission, he is a trespasser. Permission then, of the owner, is indispensable, and though it may be granted to-day, it may be withdrawn to-morrow, and the pupil will be a trespasser, which certainly was not intended by the legislature.
    The route may be practical to-day and to-morrow obstructed by a wire fence or a county ditch. The court will not incumber lands with an easement of this kind.
    (c) Counsel argue that a township road should be established to the schoolhouse, and rather intimate that it is the duty of the parents of pupils, or the defendant in error, to have such a road located and opened up in the present instance. Let the plaintiff in error have such a road established and there will be no occasion for a repetition of this case.
    
      {cl) Conceding that “distance is to be measured in a straight line * * * unless there is a clear
    indication that another mode of measurement is to be adopted;” in this case, the very purpose of the statute does clearly indicate that the distance is to be measured as the pupil must travel, and has a legal right to travel, to cover the distance.
    
      (e) So far as we have been able to examine the English authorities cited, we think it may be said that they all involve the question of radius, rather than a distance to be traveled, and there is a marked distinction between the two.
    Where radius, alone, is in question, the measurement should be a straight line, but where the traveling of the distance is involved, then it must be measured by a practical route, and a practical route is a route that can be traveled without permission from anyone.
    We have many statutes that illustrate this, Section 624.
   By the Court:

The action was brought under favor of section 4022a, Revised Statutes (92 O. L., 132). It provides as follows:

“Section 4022a. The board of education of any township, district, (sub-district) joint sub-district, special or village district, within the state of Ohio, shall permit children of school age who reside further than one and one-half miles from the school where they have a legal residence under the school laws of Ohio, to attend the nearest sub-district or joint sub-district school; or the grades below the high school in special and village districts * * * and the per capita current expense of running the school in the district where such children attend, for the term so attending, shall upon the demand of the board of education of such district, be paid by the board of education of the district where such children have a legal residence. ” * * *

Counsel for the plaintiff in error contend that the distance from residence to school is to be taken “as the crow flies.” The courts below properly rejected this aerial view of the subject. The legislation provides for the convenience of children in attending school, and the distance is to be taken as they travel along the most direct public highway from the schoolhouse to the nearest portion of the curtilage of their residence.

Judgment affirmed.  