Ferris v. Bramble

5 Ohio St. 109

• Court: Ohio Supreme Court
• Decided: December 15, 1855
• Status: Published

Opinion

Bartley, J.

This case originated under the former constitution of the State, and, after the present constitution took effect, was transferred from the supreme court of Hamilton county to the district court of that county, from which court it came here by reservation.

The proceeding in the common pleas was certiorari, to revise the proceedings of township trustees, in the establishment of a township road. That court dismissed the case for want of jurisdiction, and it is alleged that there was error in this.

The court of common pleas had jurisdiction, by certiorari, to revise the proceedings of inferior tribunals, and jurisdiction of all other writs necessary for the due administration of justice. The remedial statute conferring this jurisdiction was entitled to a liberal construction. In Burrows v. Arthur, Vandevier and others, 3 Ohio Rep. 383, the Supreme Court entertained jurisdiction, by certiorari directed to the county commissioners, to review their proceedings on an application for the establishment of a county road. By the rule of interpretation adopted in that case, certiorari would lie in the common pleas, to correct the' errors of township trustees, as well as county commissioners, and all inferior tribunals authorized by law to pronounce judgment upon „any matter before them. The common pleas, therefore, erred in dismissing the certiorari in this case, for want of jurisdiction.

Numerous other errors are assigned, some of which it is deemed proper to decide in this case.

1st. That the proceedings of the township trustees do not show that any notice was given of the application for the road. It is essential to the validity of the proceedings of township trustees, ordering a view and the establishment of a township road, that the record should show, either that the notice of the application required by the statute was duly given, or that the trustees, before ordering the view, were satisfied that such notice had been given, the notice being a step which is essential and precedent to the exercise of the power.

2d. That the giving bond for damages occasioned by the road, was not such a compensation in money as the constitution required, and that tender of payment, or a deposit long after the action of the trustees, could not cure the defect in the original proceedings. In case of the assessment of damages for laying out a road over the lands .of any person, the damages or compensation for the land necessary to be taken must be paid, or tendered in money, or secured to be paid, to the acceptance of the owner, before the opening of the road can be ordered.

3d. That the proposed road was not for the public use, but merely the private convenience of the petitioner, and that, therefore, the land taken for it was not such an appropriation to the public use as the constitution authorized. A township road in this State is a public highway, and subject to the use of all persons having occasion to use it; and it may be highly necessary to enable the person or persons most immediately and directly interested in it, to discharge properly, and without trespassing on their neighbor’s premises, many of the public duties enjoined upon them as citizens of the State. In the establishment of such roads, therefore, by the exercise of the right of eminent domain, private property may be made subservient to the public welfare, on payment of a compensation therefor in money.

Judgment of the common pleas reversed, and the proceedings of the trustees of Columbia township, Hamilton county, set aside.