
    Trustees of the Cincinnati Southern Railway v. Haas et al.
    In proceedings authorizing municipal corporations to appropriate private property (Eev. Stats. §§ 2232 to 2261), the failure of the corporation to pay for and take possession of the same within six months after the assessment of compensation shall have been made, is no bar to a new proceeding under the statute by the same corporation, after the expiration of the six months for the appropriation of the same property for the same public use (Rev. Stats. § 2260).
    ERROR to District Court of Hamilton county.
    On November 23, 1880, the trustees of the Cincinnati Southern Railway, a board appointed by the superior court of Cincinnati, under an act of the general assembly of the State of Ohio, passed May 4, 1869 (66 Ohio, 80; Rev. Stat. § 8303), passed a resolution declaring the necessity for the appropriation of certain property and their intention to condemn and appropriate the same to tlie uses of the railway, of which they were trustees, for the purposes of terminal facilities and rights of way thereto, said property lying on the west side of McLean avenue, in the city of Cincinnati and belonging to the defendants in error.
    An application, under Rev. Stat. §§ 2232, 2261, was hied by said trustees on February 9, 1881, in the court of common pleas of Hamilton county, Ohio, numbered 63905 on the docket thereof, and certain and regular proceedings had therein, resulting in a verdict which was confirmed May 6, 1882.
    The six months allowed by the statute (Rev. St. 2260), within which the corporation could take the property at the assessment, having expired, and the trustees having failed to take possession of and pay for said property, they commenced, on December 2, 1882, under a new resolution, passed November 4, 1882, a new proceeding in said court, numbered 67435 on the docket thereof, describing, as in the first proceeding, defendants’ lots and seeking their condemnation and appropriation.
    
      Service was made, and, on December 18, 1882, defendants filed an answer, in the second defense of which was set forth the commencement of the first proceedings, the verdict of the jury in full and the judgment of the court confirming the said verdict, so far as it related to defendants’ property, concluding as follows :
    “ These defendants therefore say that the plaintiffs ought not to have and maintain their said action and proceeding herein, because they say that the same is res adjudicata.”
    A demurrer to this defense was overruled in that court, and judgment was rendered for the defendant.
    This was affirmed by the district court.
    
      W. T. Porter, for plaintiff in error:
    This case involves the construction of section 2260 of the Revised Statutes. That section is, in substance, the same as section 537 of the municipal code, as passed May 4, 1869 (66 Ohio L. 240), the differences being verbal. Section 537 was taken from section 8 of an act passed March 14, 1867 (Si & S. 894), in which the limitation was one year as to all proceedings thereafter taken ; said section containing also a provision applying to all proceedings theretofore had, fixing a limitation for such of one year. Prior thereto there was no limitation, the corporation being allowed to take the property-“as soon as” it had “paid the'compensation assessed, or secured its payment by a deposit of the money under the order of court,” as will be seen by reference to original section 28 of the act “ to provide for the organization of cities and incorporated villages ” (50 Ohio L. 233), and to the said section as amended (S. & O. 1504). Sections 2260, Rev. Stat.; 537, 66 Ohio L. 240 ; 8, S. & S. 894; 28, 54 Ohio L. 240 ; S. & 0.1504; 28, 50 Ohio L. 233, are-all the sections on the sub ject passed in this state since the adoption of the present constitution. They have for their foundation art. 1, section 19 and art. 13, section 5 of the present constitution. These two sections of the constitution are in legal effect identical. Giesy v. B. B. Go., 4 Ohio St. 308. The power of eminent domain is not conferred by either of them. They simply prescribed modes for, and limitations upon its exercise. The power is an inseparable incident of sovereignty, and its exercise, for the accomplishment of lawful objects is conferred upon the general assembly in the general grant of legislative authority, 4 Ohio St. 308;. Iron B. R. Go. v. City of Ironton, 19 Ohio St. 299 ; L. M. & G. & X. R. B. v. City of Dayton, 23 Ohio St. 510; Powers v. Railway Go., 33 Ohio St. 429 ; Dillon’s Municipal Corps. 3d ed. §§ 586, 590, 600; Cooley Const. Lim. 4th ed. 672. The board of trustees of the Cincinnati Southern Railway was authorized, in the original act relating to the construction of the railway (66 Ohio L. 80), to appropriate private property.
    Later the proceedings were changed, and by section 2 of a supplementary act, passed April 18, 1873 [70 Ohio L. 139; Rev. Stats. 8317, et sec¿.~\, the proceedings of muncipal corporations in appropriations of private property were adopted.
    From that time, and, in fact, all the proceedings had by the said trustees for the appropriation of private property have been in conformity to the sections of the municipal code relating to proceedings in appropriation by municipal corporations, as found in Revised Statutes, §§ 2232, 2261, inclusive.
    Under those sections, upon a resolution being passed by the board, an application is filed in the common pleas or probate court, and, after five days’ service, an application is made for a jury, trial had, verdict returned and confirmed. At any time within six months the corporation may take the property, “ upon the terms of the assessment so made.” If it fails to do so, four several things result: 1st, the right to take on the terms of the assessment so made shall cease and determine ; 2d, the land shall be relieved from all incumbrance on account of the proceedings in such case; or 3d, the resolution of the council making the appropriation, and 4th, the judgment or order of the court, directing such assessment to be paid, shall cease to be of any effect, except as to the costs adjudged against the corporation.
    In effect, section 2260 is a legal abandonment of the proceedings, and that is all; the same as though the corporation had entered a discontinuance upon the record of the court.
    
      It will be noticed that the section deals alone with the “ proceedings ” and with the “ assessment so made,” remaining wholly silent as to the right of eminent domain in the corporation. This distinction must be borne in mind.
    If the power of eminent domain is not conferred in the two articles of the constitution cited, and if they simply prescribe modes for and limitations upon its exercise, then surely the legislation under those articles, such as the sections quoted, do no more. Hence those sections simply deal with the proceedings, and if the proceedings are not consummated by paying for and taking the property then the power of eminent domain' is not exercised, but still exists in the corporation. These proceedings so provided do not constitute eminent domain, and, all being in derogation of common right, are to be strictly pursued. Ilarbeclc v. Toledo, 11 Ohio St. 219 ; Ourrier v. M. & C. B. B. Co., Ibid. 228.
    The proceeding is not a civil action in which a judgment can be rendered upon which an execution may be issued. There is no provision for such a judgment. City of Blooming-ton v. Miller, 84 111. 621; South Park Corns, v. JDunlevy, 91 Ill. 49; Bevridge v. West Chicago Parh Corns., 7 App. O. R. 460; State v. Hug, 44 Mo. 116. The proceedings are special and bear little resemblance to ordinary legal trials. P. H. de S. W. By. Co. v. Voorheis, 50 Mich. 506..
    II. Can the proceedings be abandoned, and if so, what is the effect % On this point see Mills’ Eminent Domain, § 311; City of Bloomington v. Miller, 84 Ill. 621 ; Cook v. Parle Commissioners, 61 Ill. 115 ; 78 N. Y. 57; Beford v. Commissioners, die., 15 Adolf. & Ellis N. S. 773 ; Water Commissioners of N. J., 2 Vroom, 72; Walker v. By. Co., 6 Hare, 594; Doo v. By. Co., 1 Railway Oases, 257; B. B. Co. v. Lack-land, 25 Mo. 515 ; State ex rel. Hayes v. B. B. Co., 17 Ohio St. 108; Beasly v. Mountain Lake Water Co., 13 Cal. 306 ; 20 Iowa, 532; B. B. Co. v. Bradford, 6 W. Va. 220; Bun-can v. Louisville, 8 Bush, 98 ; Dillon on Mun. Corp. (6th ed.) § 608 ; 60 N. Y. 319, 324; 11 Wend. 155 ; B. B. Co. v. Out-water, 3 Sandf. 689 ; 11 N. Y. 311; 78 N. Y. 56 ; Commissioners Washington Park, 56 N. Y. 144; B. B. Co. v. B. B. 
      
      Co., 43 N. J. L. 528; State v. Halstead, 39 N. J. L. 640; State v. Cremes, 19 Md. 351; Graff v. Baltimore, 10 Md. 544; Merrielc v. Mayor of Baltimore, 43 Md. 219; Baltimore v. Musgrave, 48 Md. 272; Millard v, Lafayette, 5 La. Ann. 112; McLaughlin v. Municipality, 5 La. Ann. 504; Hullin y. Municipality, 4 Robinson, 357 ; Chicago v. BarMan, 80 Ill. 482; 7 Brad well, 460 ; 68 Ill. 144; 2 Mo. App. 105 ; 44 Mo. 116; 3 Mo. App. 41; 21 Minn. 533 ; 54 Wis. 136-9 ; 43 Wis. 574; 1 Iowa, 421; 20 Iowa, 523.
    Now with the four several and distinct nugatory provisions of section 2260 of the Revised Statutes, as the law of the case, and especially in view of the last very decided one, i. e., “ that the order directing the assessment to be paid, shall cease to be of any effect,” the court below allowed said assessment and order of confirmation to be plead in bar to a néw suit to condemn the same property after six months had expired, and sustained the plea, holding that the question was res adjudicata, and that the corporation was bound by the assessment so made, thus giving to the judgment and order of the court all the force and effect of a valid, binding, subsisting judgment.
    Clearly under the statute, the trustees cannot after the six months have expired, compel the property owner to accept as compensation the sum so assessed by the jury, for the rights secured, being in derogation of common law, must be strictly construed and the forms closely followed, and the statute itself has declared that after six months the corporation’s right to take shall cease and determine; hence, on this theory, if the corporation acquires title under the proceedings after six months, it is by reason of the consent of the owner and not by force of the proceedings. Ryan v. Hoffman, 26 Ohio St. 109.
    Hence, this judgment is not binding on both parties. Judgments to have the force of res adjudicata, must bind both parties and privies. W ells’ Res Adjudicata, § 5.
    If not binding on both parties, it is not binding on either, and if not binding on either party, it is not a valid and subsisting judgment, and, hence, will not support the plea of res ad-
      
      judicata. R. R. Go. v. Nesbit, 10 Howard, 395 ; Garrison v. City of New 7orlo, 21 Wallace, 196.
    We say in conclusion : If the trustees desire to acquire the property, they must begin anew, pass á new resolution, declaring a new necessity, file a new application, summon anew the parties, ask the court to fix a day for trial, give the parties their day in court; in a word, proceed de novo.
    
    No one is injured by such proceeding. The trustees are not in possession; the property owners are not disturbed. They still have their property; they have their day in court. The former verdict can figure in no way in the new trial, either for or against them. They have equal rights with the corporation, but no greater.
    It is quite clear that upon the expiration of the six months the parties are in statu quo — as though no proceedings had ever been commenced, — and if none had been, then the trustees under powers given them had a perfect right to appropriate this private property of these defendants in error to the uses of the railway, upon making full compensation, to be assessed by a jury as provided by law.
    Long, Kramer <& Kramer, and A. G Huston, for defendants in error:
    This proceeding is to condemn and appropriate lands of defendants “to and for the uses of the Cincinnati Southern Railway for the purpose of terminal facilities and rights of way thereto.”
    It is identical with a former proceeding in all essential respects, — as to parties, property, purpose and mode. In the former, the judgment confirming the verdict assessing compensation stood unreversed, and the corporation failed to pay for or take possession of the lands within six months after the final order, and in less than a month thereafter proceeded de novo. The six months began to run from date of the final order and not from date of the verdict. Ryan v.Hoffman, 26 Ohio St. 122.
    The question is, can the present proceeding be maintained ? Is it not barred by the former ?
    
      Clearly, the conditions exist bere for application of the rule of res adjudícala, except for what is claimed by right of eminent domain.
    But the question not only involves, as counsel for plaintiffs put it, but depends, upon the construction of section 2260 of the Bevised Statutes.
    The fallacy of plaintiffs position lies in the narrow construction given to said section 2260, and in the unlimited power accorded to eminent domain. While it is true, this power is “ inherent in the state,” counsel’s statement, that “ no legislation can restrain the complete, continuous, and repeated exercise of the right,” is extreme and unwarranted. On the contrary, the exercise of this power is subject to legislative regulation and judicial control. The right of eminent domain remains dormant in the state until legislative aetion is had, pointing out the occasions, mode, conditions and agencies for its exercise. Cooley Const. Lim. 528. The question is not as to the existence of the power in the state, but whether the intention of the legislature has been to delegate it to be exercised again and again, through the same agency, over the same property, and especially for the same purpose and against the same owners. This court has construed the provisions of section 2260, to be “ evidently intended for the benefit of the landowner.” By an v. Hoffmam, 26 Ohio St. 120. The section under consideration in that case was 537 of the Municipal Code, which was afterwards embodied in the Bevised Statutes as section 2260. In the absence of any such provisions, the corporation would not be bound, but would be left to determine, at its own option, whether to take the property. The object of those provisions is to set a bound to that option — to limit the period for sueh determination, which would otherwise be unlimited except by the indefinite line of “ a reasonable time.” Section 2260 fixes that reasonable time at six months from date of assessment. The corporation has this time within whieli to consider the ascertained priee in connection with the public necessity affected by it, and its decision should be final. . It is said, that this section “ deals alone with the ‘proceedings,’ and with the ‘assessment so made,’remaining wholly silent as to the right of eminent domain in the corporation.”
    Counsel seem to overlook the fact that the corporation’s right to condemn is entirely statutory. The proceedings referred to are statutory. Without the aid of the statute it would be powerless to maintain any action of this kind. So that if it has lost its remedy provided by law, it cannot fall back upon the right of eminent domain to restore the loss. It is a question of remedy. Hence we do not see the force of counsel’s argument, that the legislation on this subject simply deals with the proceedings, “ and /if the proceedings are not consummated by paying for and taking the property, then the power of eminent domain is not exercised, but still exists in the corporation.”
    Our province here is to get at the intention of the legislature as expressed in said section 2260.
    True, private property is “ subservient to the public welfare,” but public necessity must require it before it can be taken by the public. The right to take, vested by the legislature in the corporation, depends on this necessity. It is a grant in derogation of private right and must be strictly construed against the corporation. While the authority to determine this necessity, in the first instance, is, in this state, generally delegated. Oiesy v. R. R. Go., 4 Ohio St. 326 ; Malone v. Toledo, 34 Ohio St. 546.
    The railway had its day in court on the assessment. It had equal chance with the land-owners before a jury of twelve men to fix, by testimony, the compensation. It took its option of six months to consider the verdict, and having failed to pay for or take the property within that time, it may fairly be presumed to have determined that the necessity for the land had ceased. It is immaterial what may have induced the refusal, — whether the assessment was not satisfactory, the necessity passed, its own neglect, or what not, — it should be held under the obvious meaning of the limitation statute, to have exhausted its power to appropriate the same property for the same purpose, — certainly as against the same owners.
    As to the right of abandonment before confirmation of the assessment, it is immaterial to this discussion — that right might be conceded, and not affect the issue in this case, which involves the question of abandonment after such confirmation irrespective of the six month’s limitation. In some states, as in New York, the courts hold that rights become vested after the confirmation and the corporation cannot then recede. Gas Light Go. v. Syracuse, 78 N. Y. 57; Commissioners of Washington Parle, 56 N. Y. 144.
    In the states wherein the statutes fix a limit within which the corporation may take the property, so far as those statutes have been judicially construed, the courts hold, that the judgment in the first proceeding, if regular, is a bar to any subsequent proceeding to condemn the same property for the same purpose. Rayes v. Cm. dé Lid. R. R. Go., 17 Ohio St. 108 ; Ryan v. Hoffman, 26 Ohio St. 120; Rogers v. City of St. Charles, 3 Mo. App. 41; Mills on Eminent Domain § 315; City of St. Joseph v. Hamilton, 43 Mo. 282; Heal v. Pittsburgh R. R. Co., 2 Grant Cases, 137 ; Weill v. Freeholders of Hudson, 40 N. J. Law, 161-173; Drath v. R. R. Co., 17 Reporter No. 22; State of Iowa v. City of Reolmlc, 9 Iowa, 438. But even admitting the claim, that appropriations made by a municipal corporation may be abandoned even after assessment of compensation, — the conclusion is not warranted that thereupon the power exercised is restored, to be at once re-exercised. Public policy cannot surely require that the same land be subjected again and again to the same proceeding, until a jury be found to fix a price to suit. That would be 'practically enabling the corporation to take the land at its own price.
   Johnson, C. J.

This question not only involves, but depends, upon the construction of section 2260 of the Revised Statutes, which reads as follows :

When a municipal corporation makes an appropriation of land for any purpose specified in this chapter, and fails to pay for or take possession of the same within six months after the assessment of compensation shall have been made, as here-inbefore provided, the right of the corporation to make such appropriation on tbe terms of the assessment so made, shall cease and determine ; and any lands so appropriated shall be relieved from all incumbrance on account of the proceedings in such case, or the resolution of the council mating the appropriation ; and the judgment or order of the court, directing such assessment to be paid, shall cease to be of any effect, except as to the costs adjudged against the corporation.”

Keeping in mind the fact that private property, though inviolate,'is always subservient to the public welfare, such a construction is to be avoided as will release this private property from its liability to be taken for public use if the necessity ever arises.

Section 2260, in express terms provides, that in case of failure for six months to pay the compensation assessed, the right of the corporation to take the property on those terms, shall cease, the lands shall be released, and the judgment or order shall no longer home any effect, except as to costs, &c. By the very explicit terms of this section, the former proceedings are to have no other effect than as a judgment for costs. Any other construction would forever release this property from sub-serviency to this public use however great the emergency.

The same principles that would govern if this was a municipal corporation, control the case in behalf of the plaintiff.

The record contains no intimation that the failure to take the property under the former assessment was for the purpose of getting it at a lower rate.

For aught that appears, there was no objection to the amount'of the former assessment, and that the failure to then pay may have arisen from other causes.

The suggestion therefore that this is simply a device to harass the property owner, and get the property at a lower price is dehors the record, and the remarks of counsel as to want of good faith, are not in point.

We hold therefore that upon the case as made the former proceedings, are no bar.

Judgment reversed and cause remanded.  