
    The City of Steubenville v. Ezra A. King.
    1. A conveyance of land to the county commissioners for a county road, the acceptance of such grant by the commissioners, the opening of the road by their order, and its subsequent use as such by the public, and by the proper authorities, constitute it a legal public highway, notwithstanding the want of statutory proceedings for its establishment.
    
      
      H. Where territory, including a public road connecting with the streets of a city, is annexed to the city, and the road continues to be used as a street or thoroughfare, it thereby becomes a “ public highway ” of the city, within the meaning of section 439 of the municipal code (66 Ohio L. 222), although it has never been “accepted and confirmed by an ordinance specially passed for such purpose,” as provided in section 440.
    Motion for leave to file a petition in error from Jefferson county.
    The original action was brought by King against the city of Steubenville, to recover for an injury to his horses and wagon, alleged to have been occasioned by the neglect of the city to keep in proper repair and condition one of the Streets or thoroughfares of the city. The city denied its liability, on the ground that the place where the injury happened was not a street or alley of the city. The case was submitted to a jury, who found a special verdict, substantially embodying the following facts:
    In 1868, Jewett & Crawford conveyed to the commissioners of Jefferson county a strip of ground for a county road. This grant was accepted by the commissioners, and the road accordingly opened, used by the public, and worked as a county road by the proper authorities. The road so opened and used connected with the streets of the city, and until February, 1872, lay partly within the city limits and partly outside, and at that date the territory including the entire road was annexed to the city. After its annexation, the road continued to be used as.a highway or street of the city, but no city ordinance was ever passed specially accepting or confirming it as such. On the 2d of July, 1872, the trustees of the water-works of the city dug a ditch in this road or street in which to lay water-pipes, leaving the same insecurely guarded, and on the 18th of July, 1872, the plaintiff’s team, without fault on his part, and by the want of proper protection to the ditch, fell into the same, and was damaged to the amount of $200. The city council did not direct the particular place in which the pipes were to be laid, and did not sanction the act of digging the ditch, otherwise than by auditing and allowing the trustees’ account for doing the work, without any knowledge as to-where the ditch had been dug. The accident happened in that part of the road originally lying in the city.
    Upon this verdict, the Common Pleas rendered a judgment for the city. On petition in error, this judgment was-reversed by the District Court, and the present motion is for leave to file a petition in error to reverse the judgment of the District Court.
    
      James A. McCurdy, city solicitor, for the motion:
    The road in question was not a public street or alley. S. & C. 1514, sec. 63; Fulton v. Mekrenfeld, 8 Ohio St. 440; 56 Ohio L. 57 (S. & C. 1514); Wisby v. Bonte, 19 Ohio St. 238; Municipal Code, secs. 439, 440 (66 Ohio L. 222).
    It was not legally a county road.
    
      Trainer & Cook and J. McClave, contra.
    The action of Jewett & Crawford and of the county commissioners made the strip of ground a public road or highway of the county.
    See Cincinnati v. Lessee of White, 6 Peters, 431; Village of Fulton v. Mehrenfeld, 8 Ohio St. 440; Brown v. Manning, 6 Ohio, 298; Cincinnati v. Hamilton County, 7 Ohio, 88; Dillon on Mun. Corp., sec. 505; Le Clercq v. Gallipolis, 7 Ohio, 218; Wells v. McLaughlin, 17 Ohio, 99; Butman v. Fowler, Ib. 101.
    Section 440, municipal code, applies only to “ streets or alleys,” while section 439 includes “public highways” and “ streets and alleys.”
    The city accepted said highway as a street under the rules, of the common law. See cases cited supra.
    
   Welch, J.

Counsel for the city contend : 1. That the-road in question was not a legally established public highway at the time of its annexation to the city; and, 2. That if it were such, its annexation and continuous use by the public did not constitute it a street or highway of the city, for the reason that it was never accepted and confirmed ny an ordinance specially passed for such purpose,” as required by section 440 of the municipal code (66 Ohio L. 222).

We think neither of these propositions can be maintained.

Section 440 of the municipal code provides that “no 'Street or alley which has been or may be dedicated to public use by the proprietor of grounds in any corporation, shall be deemed a public street or alley, or be under the care or control of the' council, unless the dedication shall be accepted and confirmed by an ordinance specially passed for such purpose.”

Section 439 makes it the duty of the council to take “ the -care, supervision, and control of all public highways, bridges, streets, avenues, sidewalks, and public grounds, within the corporation,” and to “ cause the same to be kept open and in repair, and free from nuisance.”

It is quite obvious that the provisions of section 439 are -broader than those of section 440, and that there are some descriptions of “public grounds” or “public highways,” which may become subject to the control and supervision of the council, without any ordinance specially accepting them as such. We suppose the object of section 440 was to prevent proprietors of lands within the city limits from establishing new streets or alleys by a mere paper dedication. This was in effect decided in Wisby v. Bonte, 19 Ohio St. 238.

It can hardly be supposed that the legislature intended -by section 440 to vacate, or withdraw from city control, all streets and thoroughfares of the city which had already been established without any “ ordinance specially accepting and affirming them as such.” This would be the effect of the construction contended for, if allowed. We suppose the provision was not intended to'have any application to cases where streets are established as such by public use, .and by acts of the city authorities improving them as such. If the road in question was a legal public highway at the time of its annexation to the city, we think the simple fact of annexing it to the city, and its continuous subsequent use as a street, constituted it a “ public highway ” of the city, within the meaning of section 439 of the code, and subjected it to the control and care of the'city authorities. That it was a legally established public highway at and before its annexation, we entertain no doubt. Because the-statutes have pointed out certain.methods to be adopted for the establishment of public roads, it by no means follows that they can never be established by any other means. The grant of the owner made to the county commissioners, their acceptance of the grant, the'opening and working of the road by the public authorities, and its use as such by the public, were sufficient to establish it a legal public highway, and its annexation to the city and continuous use as one of its streets, constituted it a street of the city.

Motion overruled.  