
    The Central Ohio Railroad Company v. Adam Holler.
    Before the code of civil procedure took effect, the final order of the court of common pleas, in proceedings for the appropriation of a right of way by a railroad company, under the act of February 11, 1848, regulating railroad companies, was subject to revision by the district court, on certiorari.
    An assessment of damages in the “sum of $150, with a wagon-way and stop-for cattle,” as the damages sustained by the owner of the land taken, is not in conformity with the provisions of said act, nor with the provisions of the constitution of this state, requiring compensation to be made to the-owner for the property so appropriated to public use.
    An order of the court of common pleas, confirming such assessment of damages, was in that respect erroneous, and was rightfully reversed by the district court, on certiorari. And a mandate from such court, on such reversal, authorized the court of common pleas to vacate its order of con,-* firmation.
    Petition in error to reverse tbe judgment of the court of common pleas of Licking county.
    Eeserved in the district court.
    In May, 1854, the Central Ohio Eailroad Company, pursuant to-the act of February 11,1848, “ regulating railroad companies,” and to the act amendatory thereof, passed March 20, 1850, filed in the office of the clerk of the court of common pleas *of Licking county, an instrument for the appropriation of a right of way for its railroad, through the lands of Adam Holler.
    At the May term, 1851, said court appointed appraisers to assess damages which Holler might sustain by the appropriation.
    
      On the 17th of May, 1851, the appraisers returned to the clerk of the court an award of “ one hundred and fifty dollars, with a wagon-way and stop for cattle,” as Holler’s damages.
    At the August term, 1852, the court finding that no exceptions had been filed to the report of the appraisers, and that the amount of damages assessed by them had been paid to the clerk of the court, for the benefit of Holler, made an order confirming the appropriation, and establishing the company in the rights acquired under it; and directed the clerk to record the proceedings, which was done.
    In May, 1853, at the instance of Holler, ^ transcript of the proceedings in the court of common pleas was taken to the district court on certiorari; and that court, at the June term, 1854, reversed the proceedings of the common pleas, and directed a mandate to be sent down.
    At the October term, 1854, of the common pleas, the cause coming on to be heard on the mandate of the district court, on Holler’s motion, the common pleas set aside the proceedings and award of damages, for irregularity; and directed a transcript of the case to be certified to the probate court of the county, to be proceeded in according to law, and that the company pay the costs.
    To this judgment of the common pleas the company excepted.
    The statute, under which the original appropriation was made (46 Ohio L. 40), is, so far as it pertains to the present case, as follows:
    “If the corporation shall not agree with the owner of the land, Or with his guardian, if the owner is incapable of contracting, touching the damages sustained by such appropriation, such corporation shall deliver to such owner or guardian, a copy of such instrument of appropriation. . . . Upon the filing of such act of apjiropriation and delivery of such copy, or making of such publication, the court of common pleas, or other court of record of the county where, the land lies, or any judge thereof in vacation, upon application of ^either party, shall appoint by warrant three disinterested freeholders of such county, to appraise the damages which the owner of the land may sustain by such appropriation, Such appraisers shall be duly sworn ; they shall consider the benefit as well as injury which such owner shall sustain by such railroad; and shall, forthwith, return their assessment of damages to the clerk of said court, setting forth the value of the property taken, or damage done to the property, the amount of benefit conferred, and the difference between the value of, or damage done to the property taken, ■which they assess to such owner, or owners, separately, to be by him filed and recorded; and .thereupon such corporation shall pay to the clerk the amount thus assessed, or secure tho-payment to the satisfaction of such court, or of the judge issuing the warrant. And on making payment or tender 1 hereof to said clerk, or on giving such security as may be required, it shall bo lawful for such corporation to hold the interests in such lands or materials thus appropriated, and the privilege of using any materials on said roadway, within fifty feet on each side of the center of such roadway, for the uses aforesaid. The costs of such award shall be paid by such company ; and, on motion by any party interested, and showing said proceedings, the court may order payment thereof, and enforce such payment' by execution. The award of said arbitrators may be reviewed by the court of common pleas, or other court in which proceedings may be had, on written exceptions filed by either party in the clerk’s office, within ten days after the filing of such award; and the court shall take such order therein as right and justice may require, by ordering a new appraisement on good cause shown: Provided, that notwithstanding such appeal, said company may take possession of the property described as aforesaid, and subsequent proceedings on the appeal shall only affect the amount of compensation to be allowed.”
    It is assigned for error, in substance:
    1. That the court of common pleas had no jurisdiction in the case after the expiration of ten days after the filing of the award.
    2. That no motion to set aside the appraisement and award having been made, and no exceptions thereto having been taken for more than two years after the filing of the award, and the ten days having expired, the court erred in setting the same aside.
    
      Stanbery, Kebler & Wright, for plaintiff in error.
    
      Charles Follett, for defendant in error.
   Sutliff, J.

The principal question presented for our consideration upon the petition in error relates to the jurisdiction of the court of common pleas in this case. It is insisted by counsel for plaintiff in error that the statute having provided a particular «manner in which the defendant' in error could have had the award of the arbitrators reviewed by the court of common pleas, and the defendant not having availed himself of that provision to take the case before that court for review, he is precluded from bringing the case before the common pleas in any other manner.

The correctness of this position, we apprehend, depends upon the terras of the act authorizing the district court to revise and vacate the first order made by the court of common' pleas in the case confirming the award.

Upon examining the statutes in force upon the subject in May, 1853, at the time the writ of certiorari was issued by the district •court, it will be seen that the proceeding in certiorari was applicable to the final order made by the court of common pleas. And it is not pretended that there is any express provision contained in the statute under consideration excluding the jurisdiction of the district court in the case.

If the district court then had jurisdiction to issue a writ of certiorari in the case, and to thereby obtain supervisory power over the final order of the common pleas, that jurisdiction and power carried with it the authority to dictate to the common pleas an amendment, reversal, or vacation of the order so revised.

Indeed, it is difficult to perceive how the jurisdiction, denied to the common pleas by counsel for plaintiff in error, to make an order, in obedience to the mandate from the district court setting ■aside the proceedings under the award, could depend upon the- case having been appealed to that court from the award of the arbitrators.

Suppose the defendant had availed himself of the provisions of the statute, and, within the ten days, filed his exceptions to the award of the arbitrators? In that case the proceedings would only have been reviewed by the court of common pleas, and that court would still have had to make a final order in the case; and it might have been the same order in substance which it did make ■simply approving and confirming the award and appropriation.

But obviously, in that case, the final order so made by the court of common pleas, might have been revised by the district court *upon certiorari. And if reversed for error, a mandate from the district court to vacate such order, would, as in all similar cases, be sufficient authority for the common pleas to set aside and vacate the order which had been so adjudged erroneous by the district court.

If those views be correct, it is evident that the common picas not only had jurisdiction and authority to set aside or vacate the.final order so before made by that court upon the award of the arbitrators, but in fact had no other alternative but to comply with the mandate received from the district court.

If any error- intervened in setting aside the award of the arbitrators, the district court, and not the court of common pleas, is chargeable with that error.

But we do not perceive any error in the action of the district court, in setting aside, under the proceeding of certiorari, the final order made by the court of common pleas upon the award of the arbitrators.

We have already observed that the district court, at the time of issuing the writ of certiorari, had undoubted jurisdiction to revise the action of the common pleas in the matter.

When the .case came before the district court, it was the dujy of that court to examine the record of the proceedings of the arbitrators, and the action of the common pleas thereon, and, if found in conformity with law, to affirm the same ; but if found irregular, and not in conformity with the statute regulating such proceedings, to vacate and reverse the order and judgment of the common pleas.

The constitution of 1802, under which the statute governing these proceedings was enacted, like the constitution of 1851, provided that the compensation to be made to the owners of private property taken and made subservient to public use, should be in money. But it was the practice under the former constitution, and such is the provision of the statute under consideration, to make the actual damage sustained by the owner the measure of his compensation.

The statute provides that the appraisers “ shall consider the benefit as well as injury which such owner shall sustain by reason. *of such railroad, and shall forthwith return their assessment of damages to the clerk of said court, setting forth the value of the property taken, or damage done to the property; the amount of benefit conferred, and the difference between the value of, or damage done to the property taken, which they assess to such owner or owners separately; to bo by him filed and recorded,”..... “ and on motion by any party interested and showing said proceedings, the court may order payment thereof.”

This statute, as well as the constitution under which it was enacted, evidently required the damage to be assessed and paid in money; but the appraisers in this ease assess the damage or compensation to bo paid by the plaintiff to defendant to be “$150, with a wagon-way and stop for cattle,” as the damages sustained by Holler.

Neither the constitution, the statute, nor the order of court, authorized the compensation duo the owner of property, under such circumstances, to be assessed or paid by constructing for him wagon roads and cattle passes, or otherwise than in money, without his agreement to accept the same as such compensation. The report of the appraisers being, therefore, irregular and unauthorized by the statute, the court of common pleas had no authority under the statute to confirm their report; and the district court, for that cause, very properly set aside and vacated the order made by the common pleas upon the report.

And the district court having so reversed the proceedings of* the court of common pleas, and sent down its mandate to that court, the court of common pleas rightfully, in accordance with the mandate, set aside the erroneous order so before made upon the award.

The proceedings and judgment of the court of common pleas are affirmed.

Bartley, C. J., and Brinkerhoee and Scott, JJ., concurred.

Swan, J., did not sit in this case.  