
    John C. Anderson v. William H. McKinney et al.
    1. Where the owner of land, proposed to be appropriated for the establishment or alteration of a road, being duly notified, appeared before the viewers and claimed an assessment of his compensation and damages, occasioned by such appropriation, but neglected to file a written application therefor, as prescribed by the sixth section of the act relating to the opening of highways (S. & C. 1291), under the proviso of that section, the viewers properly declined to assess such compensation and damages.
    2. Where the viewers reported to the board of commissioners that they had declined to assess the damages of such owner, for the reason that he neglected to file with them a written application therefor, and the owner appealed to the Probate Court from the decision of the commissioners approving the report, that court did not err in dismissing the appeal on motion of the defendants.
    
      3. The proceedings of a board of county commissioners, for the establishment or alteration of a county road, can not be reviewed by petition in error, until the board has made a final decision of the matter pending before them.
    Motion for leave to file a petition in error to tbe District ■Court of Warren county.
    On tlie 3d day of June, 1872, the defendants filed their petition in the auditor’s office of Warren county, praying for the alteration of a county road, and the location of the road through the lands of the plaintiff, and for the vacation of certain portions of the road.
    The county commissioners appointed three viewers, who met, on the 22d day of June, 1872, on the plaintiff’s premises, to view the road proposed to be altered and established; and, pursuant to notice, the plaintiff then appeared before the viewers, and, while they were locating the road upon his premises, applied to them verbally, but not in writing, to assess the amount of damages he would sustain by reason of the appropriation of his land for such road.
    The viewers reported in favor of the proposed alteration of the road, and also separately reported their assessment of damages; but, as to the claim of the plaintiff, they reported that, as he had made no written application for compensation or damages, as the law requires, therefore-none is awarded to him.
    At their next session, in September, 1872, the board of commissioners approved the separate report of the viewers-upon the subject of compensation and damages, and declared that the proposed alteration of the road was not of sufficient importance to the public to justify the payment of such damages out of the county treasury, and ordered the petitioners for the.road to pay the same; thereupon,, they ordered that all further proceedings in the matter be-suspended until the damages assessed were paid.
    Upon the coming in of the viewers’ reports, the plaintiff moved the board of commissioners to set aside both reports-of the viewers, and to quash the proceedings, for specified defects in the proceedings; but the board overruled the-motion, to all which the plaintiff excepted.
    Thereupon the plaintiff’ appealed to the Probate Court from the decision of the commissioners approving the report of the viewers in relation to the assessment of compensation and damages, and a transcript of the proceedings was duly filed in the Probate Court, as required by law ;- and a jury was summoned to appear on the 9th day of October', 1872, pursuant to the order of the Probate Court.
    At the hearing before the Probate Court, on the 9th day of October, the defendant moved the court to dismiss the-appeal, because the plaintiff did not make a demand in writing to the viewers for compensation and damages; and. the court sustained the motion and dismissed the case.
    Thereupon the plaintiff filed his petition in error in the-Court of Common Pleas, to reverse the judgment of the Probate Court, and the proceedings of the commissioners; but the Common Pleas affirmed the judgment of the Probate Court.
    The plaintiff then filed his petition in error in the District Court, to reverse these judgments; but that court affirmed the Common Pleas-
    
      To reverse all these judgments, and the proceedings of ■the board of commissioners, he now asks leave to file a petition in error in this court.
    
      J. D. "Wallace, for the motion:
    We deny that the viewers, or any other tribunal, had or has the power to deny the plaintiff the right of appeal to the Probate Court, or the right to have his damages assessed by a constitutional jury, provided all the proper preliminary .steps are taken, as was done in this case.
    The tenure of private property, in Ohio, must be very slight indeed, if it can be wrested from the citizen, without compensation, for his neglect or ignorance to comply with a statutory technical requirement, that his claim, describing the premises, must be presented to the viewers in writing.
    Such a construction of their powers and duty does not comport with the letter and spirit of our constitution. The statute they claim to act under, conflicts with the constitutional and legal rights of the citizen “ to acquire, possess, .and enjoy his property,” if the fruits of his labor are to be wrested from him, and when he demands compensation therefor, he receives for answer, “You have waived your rights because your demand was not in writing.”
    A waiver is defined to be “ the relinquishment or refusal to accept a right.” “ A throwing aside, abandonment, or relinquishment; a passing by or over, the express relinquishment of a right or advantage which one may enforce or insist on, if he pleases.” “ To abandon or forsake a right.” 2 Bouvier, 648.
    We respectfully submit, that it requires some positive act, ■a, clear defined intention to abandon, or an express refusal to claim his rights, before he is estopped from enforcing them.
    The provision in the 6th section of the road law, requiring the applicant’s claim for damages to be in writing, is merely directory — a rule of procedure; and if all the circumstances, and conduct of the applicant, does not show a clear intention on his part to relinquish or abandon his' rights, it is not a waiver — it is a mere default.
    Anderson appeared before the commissioners, and protested against the wrong done him, and implored them to protect his rights.
    The exercise or power of appropriating the property of the citizen is in derogation of common rights, and is to receive a reasonably strict and guarded construction. 1 Redfield on Railways, 233, note 6, and cases cited; Livingstone v. The Mayor of New York, 8 Wend.
    The Probate Court could not dismiss the appeal, but , should have either affirmed the proceedings of the commissioners or ordered another view. Sections 5 and 10, act of April 8, 1856 (S. & C. 1302, 1303), and section 12 of the; same act, provide for a jury trial in such case as this.
    J. Kelly O’Neal, contra.
   Day, C. J.

So far as the plaintiff seeks, by petition iir error, to review the proceedings of the board of county commissioners, it is sufficient to say it does not appeal’, from the certified record before us, that the board have reached a final decision of the matter pending before them. Until that is done, it can not be known that the plaintiff will be prejudiced by the action of the commissioners. They may refuse to establish the proposed alteration of the road; then he will have no ground of complaint. He must, therefore, in accordance with the settled rule, await the-final order of the commissioners, before he can proceed in-error to reverse their proceedings.

The same remark may be made in reply to what is urged in argument as to the action of the Probate Court, as if the-appeal had been taken from the final order of the commissioners upon the whole matter, under the second section of the act of April 8, 1856. S. & C. 1301. ■

The appeal was not taken under that section, but was-taken under the tenth section of the act, which provides-for a separate appeal to the Probate Court, from the decision of the commissioners upon the report of the viewers as to damages.

Granting that the appeal was properly taken under this section, the only question then is, whether the Probate Court erred in dismissing the appeal.

Doubtless the principal reasons for providing for such appeal, were to secure to the claimant of damages his constitutional right of a jury trial of the question, and a determination of the cost of the road, as an element to be considered on the final decision of the board of commissioners as tO'tbe establishment of the proposed road.

It is essential to such final action of the board that the commissioners should be definitely informed whether any damages will be claimed; and, if so, that the amount should be determined.

For this purpose, as well as to preserve the rights of those whose lands riiay be appropriated, it is provided, in the fourth section of the act of January 27, 1853 (S. & C. 1289), that the viewers appointed to view and report upon the proposed establishment or alteration of a road, “ shall also be a jury to assess and determine” the compensation and damages to be paid therefor.

Again, this duty is imposed upon the viewers by the sixth section, connected with the proviso that they shall not be required to assess such damages to persons notified as required by law, and not being under disability, unless they “ shall have filed a written application with said viewers, giving a, description of the premises, on which, by them, damages or compensation are claimed; ” and “ that all applications for damages shall be barred unless they be presented as provided for by this act.”

The constitutionality of these provisions, taken in' connection with the right of appeal and jury trial, provided by the amendatory act of April 8, 1856, is settled in Reckner v. Warner, 22 Ohio St. 275.

The plaintiff, whose land was to be appropriated in the proposed alteration of the road, applied to the viewers to assess his damages, but did not make his application in writing, as required by the statute. For this reason the viewers refused to award him any compensation or damages, and so reported in writing to the commissioners, who approved the report. From this decision the plaintiff appealed.

The question recurs: Did the Probate Court err in dismissing the appeal ? It is true the section, under which the appeal was taken, requires the court to confine itself to the question of damages presented by the appeal, and forthwith to issue a venire for a jury to determine the matter. But these requirements, a3 well as the right of appeal itself, are based upon the idea that a claim for damages has been made as required by the statute. A right of appeal is given to a “ claimant of damages.” Surely, one who expressly, or within the contemplation of the statute (as held in the ease already referred to), has waived his right to damages, can not be regarded as a claimant of damages within the meaning of the statute granting the appeal. A contrary construction would annul the provision barring claims not presented to the viewers. Both provisions harmonize, however, upon the idea that the right of appeal, conferred upon “ claimants of damages,” refers to those only who have presented their claims to the viewers in the manner prescribed.

But it is claimed that the plaintiff appeared before the viewers and expressly claimed the assessment of his damages, and therefore cannot be regarded as having waived his claim. Still, he did not present his claim to them ip writing, giving a description of the premises on which he claimed damages, as prescribed by the statute. But the statute absolutely bar’s all applications for damages not presented in that manner. „

The statute does not debar the owner of land taken for a road from compensation. It only prescribes the mode in which it can be obtained; and, for obvious reasons, precludes a recovery of damages in any other manner, where there exists no sufficient reason why the statutory remedy •may not be pursued; or, as held in the case of Reckner v Warner, tbe statute “ declares a rule of evidence whereby a waiver, on the part of the land-owner, of his right to compensation, may be established.”

It makes no difference, then, whether the owner appears before the viewers and claims damages, or, having due notice, fails to do so. So long as, in either case, he fails to comply with the essential requirements of the statute, by presenting his claim in writing, the viewers might properly ■disregard it; for the statute not only provides that all other applications shall be barred, but the viewers are required, by the eighth section of the act under which they are appointed, to make a separate report in writing of their assessment of damages, and that “ they shall also file the written applications on wrhich such assessments have been made, with the county auditor.”

The manifest legislative theory is, that all claims for ■damages, not preferred in writing, are to be regarded as waived, and that only those who “ shall have filed a written application” with the viewers are to be regarded as •“ claimants of damages.” A purpose is thereby evinced to regard both the rights of individuals, and those of the public.

By tbe twentieth section of the act under which the appeal was taken, authority is conferred upon the Court of Common Pleas to review, by petition in error, the final decision of the Probate Court upon such appeal; but it provides that it “ shall not be reversed for any defect in form, if found to be substantially correct.”

By the appeal to the Probate Court, the plaintiff was seeking a statutory remedy; but having failed to pursue the statute, we have seen that he was thereby debarred from proceeding under it. The ruling of the Probate ■Court, in dismissing the appeal, was therefore substantially correct. There was, then, no error in affirming its judgment. Motion overruled.

McIlvaine, White, and Rex, JJ., concurring. Welch, J., not sitting.  