
    Neff v. City of Cincinnati.
    1. Under the provisions of the statute authorizing a municipal corporation to appropriate land to a public use, such corporation must secure an “inquiry into and assessment of compensation” by a jury to the owner of the 'property sought to be appropriated, which inquiry and assessment must be, not merely nominal, but actual, and made upon proof of the value of the property, or the corporation may be defeated in the appropriation; it is therefore not such error as will warrant the reversal of a judgment for the court before which the inquiry is held to permit such corporation to open and close the evidence and argument to the jury.
    2. When a question is asked of a witness, which is objected to, and the objection is sustained, the ruling will not be reviewed on error, unless the exception taken shows what it was proposed to prove.
    3. On an inquiry before a jury for the assessment of compensation to the property owners for land sought to be appropriated for a public use, a civil engineer testified that he had computed the quantity contained in each of the lots described in the application for the appropriation, and had noted the square feet contained in each lot, on a copy of the plat contained in the application, which paper the court permitted to be given to the jury as a memorandum of the quantity of land contained in each one of the lots, as testified to by the witness: Held, not to be error.
    Error to tbe Court of Common Pleas of Hamilton county. Reserved in tbe district court.
    Tbe facts are sufficiently stated in tbe opinion.
    
      Goodman & Storer, for plaintiff in error:
    ¥e claim that tbe right to opeu and close was with tbe defendants (plaintiffs in error bere).
    The affirmation of the issue is upon tbe property owner.
    Tbe issue is, not what is tbe amount of damage, but, first, is there any damage ? second, if so, bow much ? .The issue really is: Can tbe property owner recover damages ? To do so be must prove them, and it is for tbe jury to say whether be has done so; and if they find be has, fix the compensation.
    
      Where the damages are unliquidated, the burden of proof is upon the party claiming to recover them, irrespective of the title of the action, or who is nominal plaintiff. Wooton v. Barton, 1 Mood. & R. 518; Geach v. Scott, 14 M. & W. 95; and a refusal to allow the nominal defendant to open and close, under such circumstances, is error, to be reversed by an appellate court. Mercer v. Whall, 5 Q. B. 447; Ashley v. Bates, 15 M. & W. 589; Davis v. Mason, 4 Pick. 158; Brooke v. Barrett, 7 Ib. 98; Robinson v. Hitchcock, 8. Met. 64, Rohun v. Hanson, 11 Cush. 44; Young v. Highland, 9 Gratt. 18; O. & C. R. R. Co. v. Barlow, 3 Oregon, 311; Singleton v. Willett, 1 N. & McC. 355; B. & O. R. R. Co. v. McWhinney, 36 Ind. 436; McNutt & Ross v. Kaufman, 26 Ohio St. 127; Railroad Co. v. Clapp, 1 Cush. 559; 111 Mass. 543; Burt v. Wigglesworth, 117 Mass. Mass. 306; Railroad v. Bonnell, 34 N. J. 479; Mitchell v. Thornton, 21 Gratt. 164; Doran v. Railroad Co., 17 Minn. 188; Railroad v. Murphy, 19 Ib. 506.
    
      Bates, Perkins 7 Goetz, for defendant in error.
    As to whose right it is to open and close.
    Past and present statutory law of Ohio will not help us on this point.
    The legislature evidently thought the owner would not have the right to open and close, unless given him by legislation, and, accordingly, in appropriations by private corporations, have so interposed, S. & C. 370, § (356), now repealed and supplied by 69 Ohio L. 95, § 23, which latter act, repealed by § 25, is not to be applied to municipal authorities, although § 1 says, “ any and every corporation.”
    This, then, is the law as to private corporations. On the other hand, in the only instance which we can find in which a public corporation is provided for, the opposite rule is adopted, and the state board of public works has thereby the open and close. S. & C. 1255.
    As to all other public corporations, our statutes are silent.
    In 1 Phillips’ Ev. (Cowen & Hill ed.) 817, et seq., may be found a summary of eases on the general principal of open and close.
    We suppose where statutes are silent the law is either that judicial discretion on the point is supreme, or else is revisble, only when prejudice is shown ; it is indifferent in this case, which is the rule. This is held in the following cases: Fry v. Bennett, 28 N. Y. 324, 329; Albany Northern R. Co. v. Bansing, 16 Barb. 68; Preston v. Walker, 26 Iowa, 205; Marshall v. American Express Co., 7 Wis. 1; Lexington Ins. Co. v. Paver, 16 Ohio 324, 330; C. & S. P. Co. v. Blake, 12 Rich. L. (S. C.) 634.
    Although the right to open and close is one of very doubtful benefit to its possessor, and although circumstances have rendered the city’s interest in this litigation very small, we give the court the best light we can on the prineples of the question, assuming for the sake of the argument, that the ruling below is revisable here, and that the test is to seek the burden of proof. Is not this, then on the city ?
    The land taken is presumed to be worth something, for everything must have some value. 13 Ohio, 401; 10 Ohio St. 575; 2 Ohio St. 583.
    In the absence of claimant, the city therefore can not, by putting in no evidence, get the land for nothing; she must show some evidence of value, which puts the burden on her, and she must begin the case.
    Often the owner is an unknown quantity, and is brought in by publication. Suppose, too, he lets'the case go by default, or as frequently happens, when the property is a little corner or narrow strip, or out of the way scrap, the owner is contented to take whatever may be awarded, and lets the city’s lawyers do the whole without retaining counsel, making a fight, or appearing at all. In all these cases there is no one to made a beginning, except tbe city; the evidence against her is merely in the nature of rebuttal, and may be omitted from the trial, if the owner chooses. If the city does not begin in such a case, who will ? She will get the property for nothing if she does not begin.
   Day, Chief Judge.

In October, 1872, the city of Cincinnati filed its application in the Probate Court of Hamilton county, to appropriate certain lands of Narcissa W. Neff and others, the plaintiffs in error, for a street. From the judgment of the probate court, awarding damages, the plaintiffs in error appealed to the court of common pleas. At the January term, 1873, of that court, the cause was tried, and the jury rendered a verdict awarding damages. The court rendered judgment on the verdict. Thereupon the plaintiffs in error filed their petition for review, and the court made a report in the nature of a bill of exceptions, which, with the petition for review, was filed in the district court, in accoi’dance with section 529 of the municipal- code.

On the trial* the plaintiffs in error claimed the right to open and close the evidence and argument to the jury, which the court denied, and permitted the city to open and close the evidence and argument; to all which the plaintiffs in-error excepted, and now claim the ruling to be erroneous.

The proceeding was under the provisions of the municipal code, to appropriate land for public use. Under the constitution of the state, the owners of land so appropriated are entitled to compensation in money. To obtain the land the law requires an assessment of such compensation to be made by a jury. For this purpose the municipM corporation is required to notify the land-owners of its application ; and, upon proof of such notice, as required by law, the court must set a time “for the inquiry into and assessment of compensation,” by a jury to be impaneled for that purpose. No pleadings are filed by the parties, nor is an issue of fact in any form submitted to the jury. “The inquiry into and assessment of compensation” comprise all the duties of the jury. This was the character of the trial in which the question is made as to which party is entitled to begin.

The statute providing for the appropriation of land for the “ public works ” of the state, and for the assessment by a jury of the amount to be paid to the owners, declares that “ the state shall be entitled to open, and close, in giving testimony, and in the argument. S. & C. 1255. On-the other hand, the statute in regard to appropriations by general corporations, secures to the land owner the rights, in argument to the jury, of a party holding the affirmative. 69 Ohio L. 95, § 23. But, in regard to appropriations under the municipal code, no provision is made on this subject. Such cases, then, not being controlled by any statutory provision, as to which of the parties must begin before the jury, must necessarily be governed by the rules of the common law, or in analogy to the corresponding provisions of the code of civil procedure.

In.either case, the result will be the same, for there is no substantial difference, in this respect, between the practice prescribed by the code, and that of the common law. The code provides that the party, who would be defeated, if no evidence were to be given on either side, must first produce his evidence; and that the party required first to produce his evidence, shall have the opening and closing argument. § 266. At the time the code of civil procedure was adopted, the rule, as recognized by the supreme court of this state, was, “ that the party having the affirmative of the issue, shall open and close ; ” and, in Lexington Ins. Co. v. Paver, 16 Ohio, 330, Hitchcock, J., in stating the rule upon this subject, says: “Where, by the pleadings, it is apparent that no evidence is required from the plaintiff', the defendant ought to open ; but if any, no matter how slight, proof is required of the.plaintiff, he must be allowed to go forward.” And the general rule of the English courts seems to be, that “ the party entitled to begin, is he who would have a verdict against him if no evidence were given on either side.” 1 Arch. Pr. 385; Geach v. Ingall, 14 M. & W. 95.

“ In considering, however, which party ought to begin” (it is said in 1 Arch. Pr. 385), “ it is not so much the form of the issue which is to be considered as the substance and effect of it; and the judge will consider what is the substantial fact tó be made out, and on whom it lies to make it out.” Ashby v. Bates, 15 M. & W. 589. Accordingly, it seems to be settled that in “actions where the plaintiff' seeks to recover actual damages of an unascertained amount, he is entitled to begin, although the affirmative of the issue may, in point of form, be with the defendant;” for, although the plaintiff' might be entitled to nominal damages upon the pleadings, if no proof of his actual damage be given he would be substantially defeated. Carter v. Jones, 1 Moody & Robinson, 281; Mercer v. Whall, 5 A. & E. (48 Eng. Com. Law), 447. The rule as thus explained is followed in England and in the courts of this country. Huntington v. Conkey, 33 Barb. 218; Young v. Highland, 9 Grattan, 16. It follows, therefore, that, in determining which party ought to begin, regard must be had, not so much to the form as to the substance of the case; and in that view it must be considered what is the substantial fact to be made out, and on which party it lies to make it out.

In the case before us the substantial fact to be ascertained by the jury was the amount of compensation which the city must pay to the property owners, to enable it to acquire the land sought to be appropriated. The assessment was not to be made upon a claim of the property owners, but the city -was required to have it made before it could obtain the land. The city, therefore, was required to move affirmatively in the matter, and to secure an “ inquiry and assessment” of compensation by a jury, or fail in the appropriation. Notwithstanding the city is substantially the plaintiff in the matter, if it would be entitled to a verdict for a nominal amount if neither party gave any evidence, the land-owner would undoubtedly be entitled to begin. But it is clear that the appropriation must fail, unless an actual and not a nominal assessment is made. The constitution guai’antees to the owner of the property an actual compensation ; and the statute authorizing the appropriation and providing for the compensation is framed so as to secure an actual and not a nominal assessment. The statute not only requires the jury to make an assessment of compensation, but it equally imposes upon them the duty of “ inquiry ” into the matter of compensation; for, in nearly every one of the numerous instances in which it speaks of the assessment, it speaks of “ the inquiry into and assessment of compensation,” as if no assessment was contemplated but such as should be the result of due inquiry by the jury. In view of the provisions of the constitution and of the statute, it is quite clear that the city could not appropriate the laud to the public use desired, without an assessment of compensation to the owners of the property, made upon due inquiry by the jury. In order, then, to secure a valid assessment, it was incumbent on the city to have the inquiry made upon proof as to the compensation to be assessed, otherwise the appropriation might fail for want of a valid assessment of compensation.

Since, then, the assessment of a substantial compensation was required, which might have failed without proof given to the jury, and as the appropriation could not be made without such assessment, the court might well be warranted in holding that the city ought to begin, for otherwise it might be defeated.

This view of the cáse renders it unnecessary to refer to cases in other states, in which it was held that the property owner was entitled to begin, for the case turns on provisions peculiar to our own constitutional and statutory law. It also becomes unnecessary to determine whether the question, as to which party must begin, is one within the discretionary power of the court, or is one of law, the decision of which may be reviewed on error. It is sufficient to say that, upon either view, no error intervened on this point in the present case.

Another error alleged is based on exceptions taken, on the part of the property owners, to the ruling of the court, on the trial to the jury, in sustaining objections of the city to questions propounded by them to a witness, in regard to the effect of the proposed grade of the street. But the record does not show what was expected to be proved by the witness. It does not, therefore, appear that the evidence offered was something material, the rejection of which would be prejudicial to the party excepting. The record, therefore, fails to show any error on this point to the prejudice of the plaintiffs in error. Gondolfo v. The State, 11 Ohio St. 114; Holister v. Reznor, 9 Ohio St. 6; Bolen v. The State, 26 Ohio St. 371.

Again, it is claimed that the court erred in permitting a certain paper to be given to the jury. On the trial to the jury, the city called a witness, who testified that he was a civil engineer, and “ that from the plat and description set out in the petition he had computed the number of square feet in each one of the lots described, which numbers he gave, and had noted the same on a plat similar to that filed by the city; and thereupon he was examined and cross-examined, and enumerated the measurement of each lot in the plat set forth in the petition, and compared the same with each lot upon the plat produced by him, and made his calculations of the square' feet in each lot of the plat in the petition, and compared the result with the quantities respectively noted on the plat produced by him, and they agreed with each other. ■ Whereupon the counsel for the city offered in evidence the said plat with the figure on it, and asked that the same be allowed to go to the jury, and to be taken out with them when they retired; to which the defendants, by their counsel, objected; but the court overruled the objection, and allowed the plat with the figures on it to be offered in evidence to the jury, and taken with them on their retirement; to which ruling the defendants then and there, by their counsel, excepted.”

There was no objection to the testimony of the witness; on the contrary, it is conceded to be competent and admissible. The exception goes only to the ruling of the court ■in permitting the paper, which was a copy of the plat of lands in controversy containing figures showing the quantity of ground, which the witness had sworn was contained in each of the several lots, to be given to the jury. The paper was not suffered to go to the jury as an exhibit or plat of the ground. A plat was already properly in the case. It was given to the jury, not as evidence in the case, but merely as a memorandum of the quantity contained in each of the several tracts, as sworn to by the witness. It was, therefore, a matter within the discretion of the court. In permitting the paper to be handed to the jury no injustice could be done to either party; nor could it prejudice the plaintiffs in error. It merely subserved the convenience of the jury in enabling them to accurately retain the testimony as to the several quantities of ground contained in the lots', which it would otherwise be difficult for them to remember. Tracy v. Card, 2 Ohio St. 431, 451. There was no error in this respect.

Judgment affirmed.  