Railroad Co. v. Commissioners. road so obstructed, the county commissioners can not maintain an action for the obstruction of that part of the highway which is within the limits of the corporation. 6. An action by the county commissioners, brought for the obstruction of a county road, was pending at the time of the passage of the act of March 7, 1873; and on May 31, 1873, the court, by consent of parties, made an order that the cause should stand as though commenced on that day. Held, that the action must be regarded as one prosecuted under the act of 1873. ERROR to the Court of Common Pleas of Mahoning county. Reserved from the district court of that county. July 20, 1872, the city of Youngstown commenced an action in the Court of Common Pleas of Mahoning county, against the Lawrence Railroad Company, a corporation under the laws of this state. At the January term, 1873, of that court, the commissioners of that county were substituted as plaintiffs. At the May term, 1873, the following order was made by that court and entered on its journal: "This cause came on for hearing upon demurrer to the petition filed herein, and was submitted to the court, who, upon due consideration, overruled said demurrer, to which defendant by counsel excepts; and thereupon, by consent of parties, the plaintiffs have leave to amend and file new petition within forty days from court, defendant to answer in thirty days thereafter, plaintiff to reply in twenty days thereafter, and hereafter this cause to stand as though commenced at this date, to wit, May 31, 1873; and this cause continued.” An amended and second amended petition was filed, the latter on August 8, 1874. In that it is alleged as follows: "That in the year 1810 a public road and highway, commencing at or near to the point where East Federal street in the city of Youngstown, county and state aforesaid, crosses Crab creek and extending in an easterly direction therefrom, sixty-six feet in width, to and beyond the eastern boundary line of the township of Youngstown, county and state aforesaid, was duly and legally laid out and established by the proper authorities, and that the same was Railroad Co. v. Commissioners. used and occupied by the public as such road and highway from said year until possession was taken thereof, as hereinafter set forth by said defendant, and that during said time said road and highway was graded, drained, and kept in good condition for the convenience and use of the public as such road and highway. "That some time during the year 1866, the exact date said plaintiffs are now unable to give, said defendant wrongfully and without lawful authority, entered upon and took possession of said road and highway between said Crab creek and Hazelton in said township, being a distance of about one and one-half miles, and in some places thereon dug up and removed the earth and soil therefrom, and in other places filled in for the purpose of causing the surface thereof to conform to the established grade of its railroad and built and constructed its locomotive railroad thereon, and thereby obstructed said road and highway and rendered public travel upon all that portion thereof covered by said railroad absolutely impassable and upon that portion not covered thereby difficult, dangerous, and very unsafe, and that in consequence of the wrongful and illegal acts of said defendant as above set forth, said road and highway has been rendered very much less convenient and useful to the public than the same was previous to the commission thereof, and said defendant has ever since said year 1866 held, and now holds, possession of said road and highway between said points, and has ever since said year last mentioned kept and maintained, and now keeps and maintains, said railroad thereon, to the damage of plaintiff's in the sum of one hundred thousand dollars, for which said plaintiffs ask judgment against said defendant.” The first, fourth, and fifth defenses in the answer were as follows: "First defense. That it is true defendant did, in the year 1866, enter upon and locate, and in that year, or the early part of the year 1867, did construct a portion of its railroad along and upon the highway in said petition mentioned; that the same is a part of its main line of railroad, Railroad Co. v. Commissioners. and which by its charter it was authorized to locate, construct, and maintain; and that the said entry upon said highway, and the location and construction of said railroad thereon, were done with the consent and knowledge of the commissioners of Mahoning county, Ohio, predecessors of the persons now acting as such commissioners." "Fourth defense. For a fourth defense, defendant denies that the care, custody and control of all of said highway, or the title thereto, belongs to or is vested in plaintiffs. On the contrary, defendant avers that a large extent of said highway is, and for many years has been, within the corporate limits of said city of Youngstown, as a street thereof, the title to which is vested in said city, and the care, custody, and control of which belongs to and is vested in said city." "Fifth defense. For a fifth defense defendant says that plaintiff ought not to have and maintain their action in said petition set forth, because it says that it located and constructed its said railroad along and upon said highway, under and by virtue of written contracts with the commissioners of Mahoning county, Ohio, and wherein said commissioners and defendant agreed upon the terms and conditions upon which defendant should use, occupy, and enjoy, for the purpose aforesaid, said highway; and whatever rights plaintiffs may have against defendant by reason of its railroad being located and constructed upon said highway, are dependent upon the terms of said written contracts." The defendant also set forth in its answer that the action was barred by the statute of limitations of four years and six years. The answer also contained a denial that the obstruction was to the extent claimed in the petition. By the reply the plaintiff admitted that the company located the main line of its road on the highway described in the petition, but denied all other allegations in the answer. On the trial at the January term, 1876, the evidence was conflicting upon the question whether the highway had Railroad Co. v. Commissioners. been entered upon or occupied by the company with either the verbal or written consent of the commissioners. In November, 1868, the corporate limits of the city of Youngstown were so extended as to include part of the road so obstructed by the defendant. The whole highway claimed by the plaintiffs to be occupied by the company, including as well that part within as that portion beyond the corporate limits, is twelve acres, being a track sixty-six feet in width and one and a half miles in length. On the trial, the plaintiff asked Montgomery, a witness, this question: "State to the jury, what, in your judgment, was the value of the easement in this twelve acres of land, assuming that to be the quantity before the Lawrence Railroad was located upon it, to the public?" Answer: "I suppose it was $15,000." Question: "State what the same easement was worth after the Lawrence Railroad was located and constructed along it, to the public, as a road and right of way between the same points?" Answer: "Taking into consideration the mode in which it is left by the railroad, I should say it might be worth $3,000 or $4,000.” Exception was taken to the introduction of the evidence. The court charged the jury, among other things, as follows: "On the question of damages you will disregard the claim of counsel, that the rights of individuals owning land along the highway in question, are to be protected in this case. There being but two ways in which the public can become dispossessed of their easement in this highway, namely: either by contract with the commissioners or by appropriation proceedings, and unless the proof shows that by one or the other of these methods the defendant has acquired this easement, the public still retain it; and as the public, in such circumstances, have a complete remedy at law for compensation for that easement so taken by the defendant, the commissioners can not recover damages except for the extent to which the public have been inconvenienced in the use of said highway, from the time the defendant Railroad Co. v. Commissioners. laid its track on said highway down to November, 1868, at which time the west half of said highway became annexed to the city of Youngstown, and for the extent to which the public have been inconvenienced in the use of the east half of said highway to the present time." The jury returned a verdict for $3,500, and the court overruled a motion for a new trial, and entered judgment on the verdict. A bill of exceptions, in which all the evidence and the charge of the court are set forth, was taken by the defendant. The district court, to which the case was taken on error, reserved it for the decision of this court. The act of 1853, "establishing boards of county commissioners, and prescribing their duties" (51 Ohio L. 421; 3 Curwen, 2204), was amended in 1873 (70 Ohio L. 53; 4 Sayler, 2866), as follows: "SEC. 17. That in all cases where any bridge on any state or county road, or public building, the property or under the control or supervision of any county within this state, shall be injured or destroyed, or where any state or county road or public highway has been, or shall be, injured or impaired, by placing or continuing therein, without lawful authority, any obstruction, or by the changing of the line, filling up or digging out of the bed thereof, or in any manner rendering the same less convenient or useful than it had been previously thereto, by any person, persons, or corporation, such person, persons, or corporation shall be subject to an action for damages, and the county commissioners of the proper county are hereby authorized to sue for and recover of such person or persons, or corporation, so causing or having caused such injury or impairment, such damages as shall have accrued by reason thereof, or as shall be necessary to remove such obstruction or repair such injury, and the money so recovered shall, when collected by the proper officer, be paid into the treasury of the proper county, and shall be appropriated by the commissioners thereof to repairing such bridge, building, or road, or removing such obstruction, as the case may be; provided, the court may, in case of a recovery, make such |