Sutlii'I', C. J.
The plaintiffs below, in support of their claim to recover the lands in question, showed by their proof a conveyance to them on the 23d day of October, 1852, of lot No. 15, by Robert Piatt, who held the title at the time of the location of the railroad, and who, it is admitted, continued to hold a perfect title at the time of executing his deed, unless divested of the land in controversy by the proceedings of the [378] railroad company, as stated. If, therefore, at the time of the institution of the action below (February 18, 1854), Piatt, had he made no. conveyance, could have recovered the land from the company so occupied through lot 15, as their road-track, then and in that case Prentice and Maddocks, his grantees, were entitled to recover; otherwise they were not.
The defendant below relied upon the proceedings of appropriation which it gave in evidence to show the lands appropriated as a railroad track on the 21st of April, 1851; and it seems to be conceded by the defendants in error that with one exception those proceedings were regular, and that all the steps were therein taken to operate as an appropriation.
But it was objected by the plaintiffs below that the description of the land intended to be appropriated by the proceedings was too vague and uncertain to admit of the proceedings being operative to appropriate either the lands in question or any other lands. It is insisted by the plaintiff in error that the description was sufficiently certain, and, in fact, embraced the lands in question, and that the district court, therefore, erred in not regarding the lands legally appropriated by the company for its roadtrack through said lot No. 15.
We are referred by the defendants in error to the case of Hicks v. Fish, 4 Mason, 310, and the case of Hinckley v. Hastings, 2 Pick. 162, and various other, cases, to show that certainty of description is essential.
In the case of Hicks v. Fish, which was an action of trespass qucere clausum fregit, and plea that the locus in quo was a highway, it was held by Judge Story that a highway, to be legally located, “ must have some definite location and boundary.” And so in that case it was held that part of the description from a point “ even with the south end of the great ‘pine swamp,'and from thence, as it may be found the most convenient way, to the highway at the north end of the pond commonly called Little Pond,” etc., was void for uncertainty.
And so in the case of Hinckley v. Hastings, in a like action and defense, it was held that the following description of the street was insufficient for uncertainty: “ A street at least forty feet wide shall be opened on the east side of the land [379] purchased by them, which will be in a straight line with Blossom street,” etc., inasmuch as in that case the proof showed that it would be impossible to lay out such a street on the east side of said lands, and, at the same time, “ in a straight line with Blossom street.”
But in both the foregoing cases it should be remarked that the action of trespass was for acts done in opening the road.
The authorities will be found, I apprehend, less strict in requiring definite descriptions of roads, where the question is not made until after the road has been opened and in use, than in those eases where the question as to the locus in quo has been raised in limine, before the road has yet been opened and in use. This remark, doubtless, had its application in the case of Atlantic and Ohio R. R. Co. v. Sullivan et al., 5 Ohio St. Rep. 276, to which we are also referred by counsel for defendants in error. For in the case of Callenden et al. v. Painesville & Hudson R. R. Co., 11 Ohio St. Rep. 516, a description not less vague was held sufficient. And the charters referred to in the latter case show, very clearly, that descriptions less definite than that of the Atlantic & Ohio R. R. case, have, from very early legislation upon the subject, in this state, obtained more or less extensively; and without having their sufficiency questioned on the ground of want of certainty.
Indeed, very little light is shed upon the case before us by reported cases to which we are referred. The case of Vail v. Morgan & Essex R. R. Co. (1 Zabriski, 191), to which our attention has been particularly invited by counsel for defendants in error, it is true, was a case like the one at bar, which involved the validity of an attempted appropriation of lands; and it was there, as here, objected to the validity of the appropriation, that there was a fatal want of certainty in the description. But the record in that case showed only the following description in the notice to the owner, “ that an application will be made to assess the price or value of the land owned by him, over which said company has located its branch road from their original road to Dover, and all the damages which the commissioners are authorized to-[380] assess.” And the court in that case say : “ This is the whole, specification upon the face of the proceedings;” and adds * * * “ The act of incorporation requires that a survey of the route of the road shall be deposited in the office of the secretary of state. To that source the landholder would naturally look for information as to the extent of the claim -of the company, and the manner in which his rights were to be affected.” The survey presented in that case, or the “ paper,” the judge adds, “ is a mere specification in figures of the courses and distance of the survey, without a.designation of the lines of lands, or reference to a single monument from the beginning to the ending point. * * * It gives him no information whatever as to the location of the road upon his land, nor can he ascertain it except by a survey -of the whole route.” And the description of the property in that case was certainly insufficient, of itself, as held by the court, to enable the owner or appraisers to know what land was to be appropriated.
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Sutlii'I', C. J.
The plaintiffs below, in support of their claim to recover the lands in question, showed by their proof a conveyance to them on the 23d day of October, 1852, of lot No. 15, by Robert Piatt, who held the title at the time of the location of the railroad, and who, it is admitted, continued to hold a perfect title at the time of executing his deed, unless divested of the land in controversy by the proceedings of the [378] railroad company, as stated. If, therefore, at the time of the institution of the action below (February 18, 1854), Piatt, had he made no. conveyance, could have recovered the land from the company so occupied through lot 15, as their road-track, then and in that case Prentice and Maddocks, his grantees, were entitled to recover; otherwise they were not.
The defendant below relied upon the proceedings of appropriation which it gave in evidence to show the lands appropriated as a railroad track on the 21st of April, 1851; and it seems to be conceded by the defendants in error that with one exception those proceedings were regular, and that all the steps were therein taken to operate as an appropriation.
But it was objected by the plaintiffs below that the description of the land intended to be appropriated by the proceedings was too vague and uncertain to admit of the proceedings being operative to appropriate either the lands in question or any other lands. It is insisted by the plaintiff in error that the description was sufficiently certain, and, in fact, embraced the lands in question, and that the district court, therefore, erred in not regarding the lands legally appropriated by the company for its roadtrack through said lot No. 15.
We are referred by the defendants in error to the case of Hicks v. Fish, 4 Mason, 310, and the case of Hinckley v. Hastings, 2 Pick. 162, and various other, cases, to show that certainty of description is essential.
In the case of Hicks v. Fish, which was an action of trespass qucere clausum fregit, and plea that the locus in quo was a highway, it was held by Judge Story that a highway, to be legally located, “ must have some definite location and boundary.” And so in that case it was held that part of the description from a point “ even with the south end of the great ‘pine swamp,'and from thence, as it may be found the most convenient way, to the highway at the north end of the pond commonly called Little Pond,” etc., was void for uncertainty.
And so in the case of Hinckley v. Hastings, in a like action and defense, it was held that the following description of the street was insufficient for uncertainty: “ A street at least forty feet wide shall be opened on the east side of the land [379] purchased by them, which will be in a straight line with Blossom street,” etc., inasmuch as in that case the proof showed that it would be impossible to lay out such a street on the east side of said lands, and, at the same time, “ in a straight line with Blossom street.”
But in both the foregoing cases it should be remarked that the action of trespass was for acts done in opening the road.
The authorities will be found, I apprehend, less strict in requiring definite descriptions of roads, where the question is not made until after the road has been opened and in use, than in those eases where the question as to the locus in quo has been raised in limine, before the road has yet been opened and in use. This remark, doubtless, had its application in the case of Atlantic and Ohio R. R. Co. v. Sullivan et al., 5 Ohio St. Rep. 276, to which we are also referred by counsel for defendants in error. For in the case of Callenden et al. v. Painesville & Hudson R. R. Co., 11 Ohio St. Rep. 516, a description not less vague was held sufficient. And the charters referred to in the latter case show, very clearly, that descriptions less definite than that of the Atlantic & Ohio R. R. case, have, from very early legislation upon the subject, in this state, obtained more or less extensively; and without having their sufficiency questioned on the ground of want of certainty.
Indeed, very little light is shed upon the case before us by reported cases to which we are referred. The case of Vail v. Morgan & Essex R. R. Co. (1 Zabriski, 191), to which our attention has been particularly invited by counsel for defendants in error, it is true, was a case like the one at bar, which involved the validity of an attempted appropriation of lands; and it was there, as here, objected to the validity of the appropriation, that there was a fatal want of certainty in the description. But the record in that case showed only the following description in the notice to the owner, “ that an application will be made to assess the price or value of the land owned by him, over which said company has located its branch road from their original road to Dover, and all the damages which the commissioners are authorized to-[380] assess.” And the court in that case say : “ This is the whole, specification upon the face of the proceedings;” and adds * * * “ The act of incorporation requires that a survey of the route of the road shall be deposited in the office of the secretary of state. To that source the landholder would naturally look for information as to the extent of the claim -of the company, and the manner in which his rights were to be affected.” The survey presented in that case, or the “ paper,” the judge adds, “ is a mere specification in figures of the courses and distance of the survey, without a.designation of the lines of lands, or reference to a single monument from the beginning to the ending point. * * * It gives him no information whatever as to the location of the road upon his land, nor can he ascertain it except by a survey -of the whole route.” And the description of the property in that case was certainly insufficient, of itself, as held by the court, to enable the owner or appraisers to know what land was to be appropriated.
But how is it in the case before us ? As we have seen, oui statute authorizes the company to “ enter upon any lands for the purpose of examining, and surveying its railroad line, and appropriate so much thereof as may be deemed necessary,” etc. In this, case the notice mentions the survey as having been made, as the statute evidently contemplates it -should be, before the proceeding to appropriate. The description in the notice is as definite a description of a surveyed railroad track as could well be made; and if the survey, had in fact, been made, such a description in a deed would be even more certain than could be expressed by courses and •distance ; and would be, beyond doubt, a sufficient description in-tbe deed of conveyance to pass the title in the railroad track to the company. But the record only shows that the road-bed had been surveyed and staked out previous to the 1st day of April; yet the return of the commissioners that they had viewed and appraised the lands described, and giving, as they do, the precise quantity of land, clearly implies that they found the road surveyed as described in the notice. Indeed, we do not understand counsel to insist particularly [381] «pon the want of certainty at the time the appraisers made their view and appraisal on the 21st of April. But it is insisted that the plaintiffs in error did not, on the trial below, make proof that the road-bed was, in fact, surveyed and staked out on the 28 th of February, or on the 4th of March, 1851, at the time of applying for the appropriation and giving notice to Piatt by advertisement. To this objection, we think, the defendant below might well have claimed, under the law and circumstances of the case, that after the proof of so much by the • company in support of the defense, the burden of proof was reasonably shifted upon the plaintiffs below to rebut the presumptions in favor of the title of the company, arising from their proof. • Indeed, it may well be questioned whether a survey made, and monuments set along the land to be appropriated, as described in the notice, as early as the 1st of April, would not. have been sufficient. But in this case, from all that appears upon the record, the reasonable presumption would be that the petition correctly described the land as then surveyed. The proof, it is true, is not positive that the survey was made as early as prior to the 1st day of March, but it is certain that the survey was made prior to the 1st day of April; and there is no proof or circumstances tending to show that it was not in fact made, as recited in the notice, at the time the notice was given.
It certainly is not an unreasonable presumption, after proof of the fact that a road or canal had been surveyed and staked out, that when worked and in operation as a public thoroughfare, without any objection to the locus in quo, it should, if afterward questioned, be presumed to have been opened where surveyed and located. And more especially is such presumption clear, in such a case, where the stakes or monuments set are, after its completion, found to be all removed, as, in the-case of a railroad or canal, they necessarily must be, when opened on the line so surveyed and staked.
We, therefore, regard the proof made by the defendants below, in relation to the proceedings to appropriate the lands in question, as by no means void for uncertainty of descrip tion; but as prima facie embracing the lands in question, [382] and sufficient in law, unless rebutted by countervailing proof on tbe part of tbe plaintiffs below; and no such proof appears to have been offered upon the trial.
The judgment of the district court must, therefore, he reversed with costs. And this court, thereupon proceeding to render such judgment in the case as the district court should have rendered, orders that the petition so filed by the plaintiffs below be dismissed; and it is thereupon adjudged that the defendants below recover of the plaintiffs below their costs, etc.
Judgment accordingly.
PbcK, GholsoN, BriNKerhoee and- Scott, JJ., concurred.