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Lloyd Booth Co. v. Commissioners.

of the state constitution which prohibits the taking of private property without just compensation.

And it is said by Tracy, J., in his opinion on page 167: "The street thus became what is known to the common law as the servient tenement, and the lots abutting thereon, the dominant tenement. Such servitude constitutes a private easement in the bed of the street attached to the lots abutting thereon and passed to the plaintiff as the owner of such lot. That an easement is property, within the meaning of the constitution, cannot be doubted. This was expressly adjudicated in this court in Arnold v. Railroad Co., 55 N. Y., 661."

And then he proceeds and discusses the question whether that easement impairs the right to light and air.

So that while we, perhaps, are advanced somewhat on this question over the other states of the Union, yet New York has taken the same view of it, "that this easement of the street is property that cannot be destroyed or impaired impaired or invaded without making compensation therefor."

The next question is, whether compensation must be first awarded to a party, under the constitution, before the property can be taken. And in this we do not know that counsel in the case are at all in variance. At all events, we think it is a case where the compensation need not be awarded in the first instance or before the property has been taken.

The section of the constitution which I have read, Sec. 19, Art. 1, expressly states that where property is taken for the purpose of making or repairing roads which shall be open to the public without charge, compensation shall be made to the owners in money, but not before the property is taken. In other cases compensation can be first awarded, paid or secured by depositing the money.

Now this is a case where the property is taken for the making of a road. It is done by the county commissioners in the making of a county road. True, it is laid over a street in this city, but that does not interefere at all with the proposition. They have the right to lay out county roads over streets in municipalities, and as we held once in Ashtabula county, the entire street or county road consequently can be shut up against the rights of the parties. County commissioners, where they have laid out a county road in a municipality, have a right to have it opened and the municipality can not close it up. It is not for the purpose of simply repairing Market street, nor of changing its grade, but it is for the purpose of establishing a second road over that part of the city. It leaves Market street as it theretofore existed, in front of these premises at least, and that is all that is necessary for us to consider. It leaves Market street at its grade as it was before and it establishes a new roadway which in certain respects, heretofore described, by necessity supersedes the old traveled roadway or street, thus making substantially a new road over a portion of the street, so that it comes within the provision of the constitution relative to the taking of property for the making of a road.

Coming then within the meaning of the constitution, it follows of course that compensation need not be awarded in the first instance, before the taking of the property, but here comes the line of demarkation between the counsel for defendant and the court. Counsel for defendant claims that the board of county commissioners can proceed in the construction of this roadway and leave the plaintiff to its remedy at common law to recover damages for whatever injury it may create.

Mahoning Circuit Court.

We take issue with counsel upon this because this provision of the constitution requires that compensation shall be made for the property thus taken. It shall be made, not obtained by the plaintiff suing to recover damages, but it shall be made by the parties or board who take the property, and it must, in order to be within the constitution and make it a constitutional act of the board, be within the law a provision providing for compensation to be assessed by a common law jury, not at the instigation of the lot owner, but at the active instigation of the board of commissioners; that board must be the actors, and the law itself which authorized them to take the property, to be a constitutional provision, must contain within it a provision for assessing to the lot owner that compensation by a common law jury.

Now this matter has not been determined in the case to which I have referred, Cohen v. Cleveland, supra, which has nothing at all bearing upon this question because it is stated there that the law provided the means for or the municipality provided the means to have the compensation fixed and awarded by the action of the common law jury, so that it did not determine the question. It recognized the fact that the law was such as the constitution required and in that instance it had been carried into the statute.

The question is determined in Hendershot v. State, 44 Ohio St., 208 [6 N. E. Rep., 245], and there can be no question in this respect. The per curiam is very short. The syllabus is: "There is no provision in the statutes whereby the owner of material taken by a supervisor for the repair of a public highway, under Sec. 4715, Rev. Stat., can have his compensation assessed by a jury as required by Sec. 19 of the bill of rights, and it is there!ore invalid; and the owner, resisting a supervisor entering upon his lands under the provisions of said section, is not guilty of resisting an officer under the provisions of Sec. 6908, Rev. Stat.”

Now the court says, "The plaintiff in error was indicted and convicted under Sec. 6908, Rev. Stat., upon the charge of resisting a supervisor of a road district while the latter was, under the provisions of Sec. 4715, attempting to enter upon certain uncultivated lands of the accused, near a public highway, for the purpose of obtaining gravel to repair the

same.

"That resistance to a supervisor of roads while in the execution of his office is an offense within the provisions of Sec. 6908, Rev. Stat., was decided in Woodworth v. State, 26 Ohio St., 196.

"The ground, however, upon which a reversal of the conviction of the accused is asked, is that the section ci the Revised Statutes (4715) under which the supervisor claimed the right to enter upon his lands, makes no provision for the assessment of his compensation by a jury, as required by Sec. 19 of the bill of rights, and is therefore void. This we think is the fact and that the accused must be discharged. It is true that under this section of the bill of rights, property may be taken for the repair of a public highway without first making compensation in damages, as in other cases; but this is the only difference; the owner is, after his property has been so taken, entitled to have his compensation assessed by a jury. Lamb v. Lane, 4 Ohio St., 167; and, as said in that case, the constitution does not in this regard execute itself.

"We fail to find any provision in the statutes by which the owner of property taken under Sec. 4715, Rev. Stat., can have his compensation assessed by a jury. It is not found in Sec 4744 and 4745. These

Lloyd Booth Co. v. Commissioners.

sections only provide a mode by which he may be paid such sum as may be allowed to him by the township trustees, and, where the amount exceeds the sum of $25, by the latter in connection with the county commissioners. No appeal is given from the decision of the trustees or commissioners to a court in which the owner may have his compensation assessed by a jury."

So that there can be no question as to this. No act is valid which authorizes county commissioners, or any other body, to take property from the making or repairing of roads, unless it contains a provision for fixing compensation to the owner of the property. It is admitted on all hands that there is no such provision in the statutes of this state. We understand, and we are pleased to hear it, that perhaps a proper law has within a day or two been passed by the legislature of this state to meet this contingency and that there will be but little delay in the construction of this roadway by reason of our action in the premises.

Finally, it is said that an injunction is not a proper remedy. That that is not open to the party. Now I am at a loss to know why these questions are pressed upon the court, when they have been so firmly settled in the law of the state; why we should be called upon to reiterate the decisions of the Supreme Court that are open to the parties and counsel and are known to them, because the attorneys in this case are not only reputable, but they are men of ability and knowledge. They must know of these cases and of the decisions of the Supreme Court which has settled every question in this case against them and yet we are called upon, as I have said, to reiterate the decisions in the settlement of this case. Every proposition in it that has the least show of merit has been decided over and over again by the Supreme Court of this state and this last question made in the case as well.

In this case counsel have referred to and commented upon, by both sides, Cincinnati & S. G. A. St. Ry. v. Cumminsville, 14 Ohio St., 523. There, the railroad company undertook to build a street railroad in front of the premises of the plaintifl. They proposed to locate it within sixty-three feet of the sidewalk in front of the store of these parties, and all these questions were settled in that case, i e., that it was intringement and impairment, an attempted impairment of the easement of the plaintiff in the street; it was the taking of their property and was an attempt to take without compensation, and the action was for an injunction to restrain the railroad company from the construction of the roadway. That it was a permanent erection in the street, that it would destroy travel-the travel would only be obstructed in front of the plaintiff's premises near the crossing--and the court held that it was an attempt to take away the property of an individual, which the court would restrain until steps were taken to acquire it according to law, or by the consent of the owner. They were enjoined in this case from constructing it, and not only that, but a mandatory Injunction was issued to compel them to remove what they had already built.

So in the later case, Watson v. Trustees, 21 Ohio St., 667, it was disposed of by the Supreme Court of this state in a very few words. That was a case where the township trustees undertook to locate a ditch or drain on lands lying adjacent to the public road, where they had a right to do it, and the court held that they had no right to do it in this case because the statute contained no provision for compensation, so the injunction was made perpetual. So we have had decisions on every

Mahoning Circuit Court.

question involved in this case, and they have been settled and determined by the Supreme Court of this state, not one of which has ever been shaken.

It leads us to the conclusion that the injunction in this case must be awarded. Not only to restrain the construction of this structure in front of the plaintiff's premises until their consent is obtained, or right is obtained by appropriation or other proper proceeding, but a mandatory injunction must issue to compel them to fill up such excavations as they have made and to remove the obstruction that they have now in the street in front of the premises of the plaintiff.

SENTENCES.

[Hamilton Circuit Court.]

FLORIEN ATKINS V. STATE OF OHIO.

CORRECTION OF SENTENCE.

A sentence within legal limits cannot be corrected on error although it may seem too long to appellate court.

HEARD ON ERROR.

H. R. Probasco, for plaintiff in error.
Schwartz, Darby & Ballard, for the state.

SMITH, J.

A majority of the court are of the opinion that the verdict of the jury finding the plaintiff in error guilty of an assault upon the prosecuting witness with an intent to ravish her, was not so manifestly against the weight of the evidence as to justify the court in reversing the judgment on that ground. Judge Smith is of the opinion that, while the defendant was shown to have been guilty of an assault upon her, it was not shown with the clearness and certainty that the law requires in cases of this character that he at the time intended to ravish her. We are all of the opinion that, in view of the uncertainty and of the facts shown, the sentence of the court (five years in the penitentiary) was far too long a term, but this we cannot correct.

The judgment will, therefore, be affirmed.

PRINCIPAL AND AGENT-CONTRACTS.

[Hamilton Circuit Court.]

Smith, Cox and Swing, JJ.

HAVEN Co. v. JOHN CARLISLE ET AL.

*THE JAMES L

1. CONTRACT OF AGENT AND TRUSTEE.

Principals are bound by the contract of their agent made with their knowledge and authority, although such agent is trustee of a trust contained in a written instrument not conferring such authority.

2. APPROVAL OF AGENT'S CONTRACT.

The fact that owners of property consented that the agent in charge thereof, or *For decision of the court of common pleas, Hollister, J., see 3 Dec., 27.

Haven Co. v. Carlisle.

the trustee above referred to, should use rents to pay additional expense of improvements amounts to an approval of the agent's contract for such improvements.

HEARD ON ERROR.

Thomas McDougall, Cadwallader, Ben. B. Dale, Stephens & Lincoln, Herron, Gatch & Herron, and James J. Muir, for the plaintiff

contractors.

C. W. Baker, Edmund K. Stailo and Reuben Tyler, for the Carlisle heirs.

The suits were instituted against the Carlisle heirs by the respective contractors, plaintifls in error, for recovery of balances due them under contracts for remodeling the St. Nicholas Hotel during the year 1890. These balances amount to about $26,000. The work was contracted for by John Carlisle, and owing to changes in the plans, cost much more than was expected. At the hearing below it was contended on behalf of the solvent Carlisle heirs that John Carlisle acted independently and not as their agent in this matter, and therefore he alone was liable for the unpaid balance. The common pleas court released the other heirs upon this ground, holding that where the agent is trustee of a trust necessarily contained in some written instrument, it is the duty of those dealing with him to ascertain the exact extent of his authority which was not done in this case.

SWING, J.

We think these cases should be reversed on the ground that the judgments are clearly and manifestly against the evidence. It seems to us beyond any question that in making this improvement John Carlisle was acting as the agent of all the parties. He had been the trusted agent of the parties in all matters pertaining to the estate hitherto, and we see nothing to indicate in the slightest degree that in this particular matter this relation was changed, and that he was acting wholly for himself and as an independent contractor. If he had been acting for himself it is inconceivable to us that he should have so changed the improvement that instead of costing $50,000 it cost to him over $75,000. The change was for the benefit of the property, and it was so great in amount, and so against his own interest that he should expend out of his own pocket over $15,000, that we can not believe that he thought for a moment that he was paying for this extra improvement. His conduct all the way through shows clearly that he thought he was acting simply as the agent of all. He time and again, verbally and in writing, said to the contractors that he was acting as the agent of the estate or the heirs. Besides all this, the other parties must have been aware of this extra expenditure, for they gave their consent that he might use the rents in advance, which belonged to them, to pay for this extra improvement, thus in effect approving and ratifying his conduct. All the evidence shows that every contractor contracted with John Carlisle as agent for all the parties interested. There never was an intimation that he was acting in any other capacity, and we have no doubt but what in fact he did so act. He had in all other matters acted as the trusted agent of his brothers and sisters, and that he so continued to act in this matter we have no question.

The several judgments in this case will be reversed and remanded for further proceedings.

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