
    The Little Miami Railroad Co. v. Huston Hopkins.
    The 9th section of the act of April 30,1852, “ To provide for compensation to the owners of private property appropriated to the use of corporations” (S. & C. 311), is applicable to proceedings for appropriation and compensation instituted by the land-owner under the supplemental act of April 6, 1865 (S. & S. 114); and the proceedings in the probate court in such cases can be reviewed by the court of common pleas only when the petition in error is filed for that purpose within fifteen days from the rendition of the judgment in the probate court.
    Error to the court of common pleas of Warren county. Reserved in the district court.
    The case, so far as relates to the point decided, is sufficiently stated in the opinion of the court.'
    Upon questions touching the merits of the case presented by the record, counsel filed elaborate arguments ; but. those questions are not reached in the decision*
    
      A. G. McBurney, and T. F. Thompson for defendant in error:
    
      T. F. Thompson, in argument: •
    If the statute of 1852 has any application,, we think that the cou rt hs no> jurisdiction of the case; The act (S. & O. p. 314, sec. 9) requires the petition in error to be filed within fifteen days from the rendition of the judgment' by the probate court.. This petition was filed in the. court of common pleas nearly three, months, after the judgment was rendered.
    
      J. D. Wallace and James Murray for plaintiff in error:,
    The act of 1852 does not. apply to these proceedings in any. view whatever. It only claims (sec. 1) to apply to lands thereafter sought, to be appropriated.
    The act of 1865 does not claim to apply any of the provisions of that of 1852, as to review, but only as to the mode of ascertaining and measure of damages;
    No motion has ever been made to dismiss for want of jurisdiction, or to plead lapse of time in bar.
    
      J. B. Swan and J. F. Jewett, also for plaintiff in error:,
    As to the question whether the proceedings in this case are under the act of 1852, and to be governed by the 9th section of that act, we say:
    1. The counsel for th.e defendant in error suggest, in their printed argument upon the merits of this case, that “ If the statute of 1852 has any application, the court has no. jurisdiction of the case,” etc.
    The if is very properly put; for we concede that if these proceedings were had under the act of 1852, instead of the. act of 1865, the petition in error should have been filed within fifteen days.
    The if and the elaborate printed argument of the comise. 
      
      on the merits, and not a word by motion or demurrer 01 other objection throughout these proceedings, except the sug gestión above quoted, in argument, show that the counsel understood these proceedings to be had under and by virtue only of the act of 1865.
    2. These proceedings could not have been had under the act of 1852. If they had been instituted under that act, they would have been dismissed on motion and reversed on error.
    The act of 1852 has- so far to do with these proceedings, that, by force of the provisions of the act of 1865, they are to be conducted to final judgment m the same manner as proceedings under the act of 1852, so■ fare as practicable. And to what extent ? Up to final judgment! And this provision, up to final judgment, is significant of the intention of the legislature, when it is considered that, so far as regards proceedings under the act of 1852- the 9th section provided for proceedings after final judgment, and on error; and the legislature is presumed to know that proceedings under the act of 1852, after final judgment, were held in 1859 (10 Ohio St. 25) to be regulated by that act. If the legislature had intended, in view of that decision, that the proceedings under the act of 1865 should be regulated after final judgment by the act of 1852, they would have added after the words final judgment the words, “and on. error” or other1 words of like effect.
    ■ The proceedings authorized under the act of 1852 were all prior to any right- of entry by a corporation to construct their road, and therefore required summary proceedings; whereas the proceedings under the act of 1865 are had after the corporation has been in the use of the right of way, and therefore required no such summary proceedings in error, and might well come under the general provisions of the code.
    Why, in the act of 1865, say anything about the proceedings being as far as practicable like proceedings under the act of 1852 up to final judgment, if the act of 1852 was to be applicable after final judgment? The code provides generally for reversal of the judgments and final orders of the probate court, and must be operative in this case unless the ninth section of the act of 1852 applies to proceedings undei the act of 1865.
    Now it will be observed that the ninth section of the act of 1852 relates exclusively and by express terms to “ proceedings hereinbefore provided for,” and none other. And it is clear that the proceedings thereinbefore provided for are not the proceedings .provided for under the act of 1865 ; and yet the counsel for the defendants in error must claim that the new remedies, rights, and proceedings under the act of 1865 are provided for by the act of 1852.
    In the absence of this act of 1865, 'the present proceedings could not have been instituted under the act of 1852, but the remedy in such cases would have been a civil action in the nature of a bill in equity against the railroad company, asking compensation for the land.
    The final judgment in this civil action would have been subject to petition in error within three years under the code.
    The act of 1865 was therefore the regulation of a common-law right of action theretofore existing and unprovided for by legislation.
    Our position may be summarily stated thus:
    1. The ninth section of the act of 1852 cannot override the general provisions of the code enacted in 1853 relating to petitions in error, except in regard to rights of action and proceedings authorized and provided for by the act of 1852.
    2. A new statutory right of action and proceeding was created by force of the act of 1865, which is subject, under the code, to be revised within three years, and which, not being a proceeding under or by force of the act of 1853, is not subject to x’evisal under that act, nor does it come within the purview of the ninth section.
   Scott, J.

The oxlginal proceedings, here sought to be x-eviewed, were instituted by the defendant in error against the plaintiff in error, in the probate coux’t of Warren county, under the act of April 6, 1865 (62 O. L. 85), S. & S. 114, supplemental to the act of April 30, 1852: “ To provide for compensation to the owners of private property appropriated to the use of corporations.” (S. & C. 311.)

These proceedings were instituted by filing a petition in the probate court on the 17th of August, 1866, and the plaintiff in error having been made a party defendant, further proceedings were had, which resulted in an assessment of compensation and damages, by a jury, in favor of the plaintiff below, for the sum of $1,975.38, for which sum judgment was rendered against the defendant on the 29th of December, 1866. During the progress of these proceedings in the probate court, a bill of exceptions was taken by the plaintiff in error; and to reverse said judgment the plaintiff in error, on the 30th day of March, 1867, filed a petition in error in the court of common pleas of said county, in which many errors are alleged to have occurred in the proceedings and judgment so had and rendered in the probate court. Upon the hearing of this petition in error, the judgment of the probate court was affirmed by the court of common pleas; and to reverse this judgment of affirmance, the plaintiff in error filed a petition in error in the district court, and by reservation therein the case comes to this court for decision.

Before proceeding to state and determine the questions arising upon the various assignments of error in this case, it becomes necessary to inquire whether the proceedings and judgment of the probate court were open to review in the court of common pleas, under the petition in error filed therein by the present plaintiff. That petition was filed three months after the rendition of the judgment of the probate court which was sought to be reviewed.

The ninth section of the act of April 30, 1852, before referred to, provides that the proceedings in the probate court, which are authorized by that act, “ shall be open to exceptions, in the same manner that exceptions are or may be taken in civil suits in the court of common pleas; and either party may take the same up to the court of common pleas of the proper county, on a writ of oertiora/ri. . . Frovided that such writ of certiorari shall be issued within fifteen days from the rendition of the judgment in the probate court.” Now, it is claimed by defendant in error, that this provision is applicable to proceedings instituted under the supplemental act of 1865, and that the proceedings and judgment in the probate court can only be reviewed when the petition in error (which, under the code, takes the place of the obsolete writ of certiorari) is filed in the court of common pleas, within fifteen days from the rendition of the judgment in the probate court. We discover no satisfactory grounds upon which this claim can be refuted or overruled.

The act of 1865 is merely supplemental or additional to that of 1852.- It repeals none of the provisions of the former act, but was intended to compel railroad corporations to proceed pursuant to the provisions of the former act, to perfect appropriations of land which they had taken and were in fact using for the purposes of their roads, without the consent of the owners, and without, having paid thereforand on their default to do so, then to authorize the land-owner to institute similar proceedings, to become the actor, and to obtain an assessment by a jury of the compensation and damages due him for the land so taken, in the mode prescribed by the act of 1852, and to obtain a judgment and execution, if necessary, against the corporation for the amount of such compensation and damages.

Its provisions are as follows:

Sec. I. “ That in all cases, where any railroad company has taken possession of and is now using the land of any person, or persons, for its track, or any other purpose, and which land, or right of way, so used and occupied,, has not been condemned, and paid for by such, company, or is. not held by any agreement with the owner or owners, the said company shall,, within ten days after its president or secretary shall have been notified in writing for that purpose by the owner or owners of said land, proceed under the act to which this is supplemental, and cause said right of way to be condemned ; and on failure of such company so to proceed, the owner or owners, as aforesaid, may file a petition in the probate court of the proper county, observing the same mode of proceeding as is provided in said act, and said cause shall be conducted, in every respect, to final judgment, so far as the same is practicable, as provided by said act, to which it is supplemental; and if said company shall fail to pay such damages and costs as may be awarded against it in such proceeding, the same shall be collected by'execution, as in other cases; provided, however, that nothing in this act shall be so construed as to prevent the owner or owners of such land and such company from agreeing upon the amount of damages due to such owner or owners.

Sec. II. “ This act shall take effect and be in force from and after its passage; provided further, that if execution shall be duly returned unsatisfied, with the indorsement that no goods or chattels, land or tenements, can be found whereon to levy, to satisfy the same, the court may by injunction restrain such company from using or occupying the lands of such owner until the said judgment and eosts shall be paid.”

Here it is to be observed, that it is made the imperative duty of the railroad company, upon receiving the proper notice from the land-owner, to proceed within ten days, under the apt of 1852, to cause the right of way to be condemned. In case the company complies with this positive requirement of the statute, then the proceeding being directly under the act of 1852, the limitation as to the right of review, contained in its ninth section, must unquestionably apply to the case. But if the company makes default, and thus throws upon the land-owner the onus of becoming the actor in proceedings intended to accomplish the same object, and which are required to be conducted in every respect to final judgment, as provided in the same act of 1852, could it have been intended that the company should, by its own default, acquire a right to delay a final adjudication and settlement of the controversy, by reviewing the judgment of the probate court, at any time within three years from its date ? The policy of the statute contemplates a fair and just ascertainment and adjustment of the rights of the parties without unnecessary delay, and no good reason is perceived for leaving the controversy longer open in the one case than in the other. The purpose of the act of 1865 was to enforce the prompt payment of proper compensation to the land-owner, and not to permit the continued use of a right of way which had never been paid for, or otherwise adjusted with him.

The statute of 1865 directs that the same mode of proceeding shall be observed, and the cause be conducted in every respect to final judgment, so far as practicable, as is provided by the act of 1852. We do not find, in this language, the implication suggested by counsel, that the proceedings in review, after judgment shall not be governed by the limitation of the same act. We regard this merely as a declaration that the whole proceeding, from its inception to its termination, should, as far as practicable, be governed by the act of 1852.

Again, .the questions which the plaintiff in error here seeks to present are mainly brought into the record by bills of exception taken during th.e progress of the case in the probate court. We know of no authority for taking bills of exception in such special proceedings in the probate court, excepting that which is found in this same ninth section of the act of 1852. We think it clear that a party who would avail himself of the rights conferred by this section must exercise them in the mode and subject to the limitations which its terms prescribe.

We hold, therefore, that the judgment of the probate court, in this case, was not subject to review by the court of common pleas, upon a petition in error filed after lie lapse of fifteen days from its date; that the judgment of affirmance rendered by the latter court is simply nugatory, and does not prejudice the plaintiff in error; and that the present petition in error must be dismissed.

Beinkeehoee, C.J., and Welch, White, and Day, Jl concurred.  