^aOJITVD-JO^ ^no %a3AIN(V3t\v 1©M |G ^/OJIIVDJO^ %)3 FC%, ^OFCAlIFOfy^ I- £7 n-i^ ^Aaviflii-T^ 7 .5ME-UNIVERS/A >- 1 e»«^ t 1 9 o **lOSANGElfj> o "%3AIN(13\\V ^OKALIFOBfe ^OF-C ^AHVHflllY^ y 0Alf ^lOSANGElfr- "%3AIN(HttV ^•UBRARYQ^ ^HIBRARYQ^ ^/ojiivjjo^ \oi\m-^ ^NINIVERS/a. 30^ %0JITY)J0^ %l30NVS0l^ "%3AIN(l3t\V IF(%, ^OF-CAllFORto ^MEUNIW^ ^TO-SOl^ ^lOSANCFt^ CO ^«3AINH-3V^ > ^UIBRARYQ^ <$UII «5 i i<— ' is ^MMITCHO 5 ^ ^KM aOF-CAllF(% ^0F( g 3 D y 0AHVH8IH^ >&AH ^lOSANCElfj^. ^3AIN(]3WV ^UIBRARY^ ^HIBRARYQr *\K4JNIVERJ/a ^OJITVD-JO^ %0i\TO^ ^3AINn-3\\v ^0FCALIF(% ^0FCALIFC%, y 0AMM* v ^ajmih^ <«NIVER$/a <^130NYS01^ O u_ 53 CP %^.^jJ§ ^mwm^ "^maim-jwv AWUNIVERS/a o o^lOS ANCFlfj> "^/MAINIl-JWV* ^OFCAHFOfy* ^0FCAUF(% y ^AHVJ!an-# ^AHvaanv^ r9. jo' ^OF-CAUFOMto ^Aavaain^ ^0FCAIIF(%, ^Aavaan-i^ ^EUNIVER^ ^OS-ANGEtffe ^TO-SGV^ %JHAINfl-]ftV s ^OFCAUFOty ^Awaan-tf ^EUNIVHtf/A o ^UIBRARft^ ^•UBRARY^ %MAINIHV^ ^ttOJITCHO^ %0JriVDJ0^ .itfEUNIVFW/, S 5J. ^JDNYSOV 4 .5^-UNIVflHfe. £* ^lOSANCElfj^ ^JUONV-SOl^ %MAINIH¥^' ^0FCA1IF(% >e?Aavnan^ % ^OFCAUFOJ^ y 0AHVH9Itt$* .^FWIVFM/, 59, ^mwm* ^UIBRARYQ^ ^UIBRARYQ^ ^fOJiivjjo^ ^aojnvj-jo^ ^.OFCALIFOfck, ^OFCALIFOfyj. ^Awaan^ ^wnan-^ 5jflH)NIVt!% ^IBNV-SOl^ OS ^uk-angei&u ^HMINIUV^ ^HIBRARTQ 5 %0JITY3J0 : ^lOSANGFl^ ^.QF-CAllFOfy ^AHvaan-^ If I C0 VJV8JSZLo» S -'•/URN \T LAW THE LA.WS RELATING TO ROADS AND DITCHES BRIDGES AND WATER-COURSES IN THE STATE OF OHIO INCLUDING State, county and township roads; free turnpikes or improved roads; highways in municipal corporations; toll-roads and turnpikes; bridges and culverts of all kinds; county and township ditches; the appropriation of private property for all such roads and ditches; rivers, creeks and other- natural watercourses, their straightening, and the removal of drift, mill-dams and other obstructions therefrom; the common law of roads and ways, and of persons using or owning them ; criminal laws relating to, and railroads, telegraphs, and telephones as affecting, roads, ditches, bridges; etc., etc. WITH NUMEROUS FORMS, NOTES OF DECISIONS, OPINIONS OF ATTORNEYS-GENERAL, PRACTICAL SUGGESTIONS, ETC. BY FLORIEN G-IAUQUE Author of "A Manual for Guardians and Trustees, "A Manual for Assignees," etc., etc. CINCINNATI ROBERT CLARKE & CO 1886 Copyright, 1885, By ROBERT CLARKE & CO. T 1836 PREFACE. This work is designed to contain all constitutional and statutory provisions of Ohio relating to free roads, toll-roads, bridges, cul- verts, ditches, including their inception, completion, use, repair, vacation, sale, or abandonment ; to natural water-courses ; to streets as connected with such roads; also, all pertinent reported decisions of the supreme court and inferior courts, as well as such unreported ones as could be reliably given ; also, many of the opinions of the attorneys-general of Ohio, especially as to ditches ; and also the most important provisions of the unwritten or common law, and of custom, recognized by courts and standard law writers as being in force here, including " the law of the road" relating to the rights, duties, etc., of the various classes of travelers and others frequenting the public highways, and the most generally applicable common law principles as to ways and roads by prescription, grant, reservation, from neces- sity, etc. (See chapter 22.) Logically and essentially connected with the design above mentioned are the provisions as to the pur- chase or appropriation of private property, including the lands over which these roads and ditches pass, as well as of the materials nec- essary for the construction and repair of these roads; and they will be found embodied in accordance therewith, and with the plan of the work long since announced, and as rapidly completed as the time which could be given to it would permit. A large part of the book is occupied by its numerous forms, introduced wherever their use becomes necessary. It is hoped that the work is well done, and that it will be useful to the bench and bar, as well as to the various county and township officers and others whose rights and duties relate in part to the mat- ters treated in it. It is regretted that the volume is so large ; but it is believed that the omission of any thing that would materially diminish its size would make it incomplete. Much might be said iu this preface, or a preliminary chapter might not inappropriately have been inserted, concerning the his- tory, kind, and condition of roads and drainage, at least in Ohio, if not in other countries and times, such as the roads of Rome of old, (iii) iv PREFACE. whose still existing remnants are among the wonders of our time, but space forbids. But it may at least be said that the un worked " mud-roads" of the pioneer era, and even the toll plank-roads and turnpikes which followed them in places, are giving way to the improved free roads or turnpikes, at least in those counties where gravel is good and abundant, as is fortunately the case in many of them. Indeed, it may be said that very large areas in the western and north-western parts of the state, formerly so swampy, dreary, and almost impassable, have been converted into the richest, most productive, and most easily traveled portions of it, by the new system of ditches (see chapters 23-25) and of improved roads (see chapters 6-10), or are in process of such conversion. While preparing this work, its editor, desirous of gaining infor- mation from every available source, visited many counties of the state, to study their forms, consult their experienced officials, and see the practical working of the various systems of roads and drain- age. To many of these officials he is under obligations he wishes to acknowledge, among these being especially Col. Curry, auditor of Union county, where almost every mile of road is a part of some two mile assessment pike ; auditor John C. Turpin, and probate judge Kolp, of Darke county, where there are nearly as many of the same kind of roads ; auditor Emil Kiessewetter, probate judge John T. Gale, and deputy B. Tussing, of Franklin county, where there are many one mile assessment pikes ; James M. Harper, engi- neer of Hamilton county; Col. T. H. Hunt, efficient clerk of the county commissioners of Hamilton county; Joseph Ramsey, engineer of the C. , H. & D. R. R. To Silas E. Hurin, Esq. , he is in- debted for preparation of the notes as to local laws on pp. 691-708. To another person he is indebted for very considerable and intelligent aid in copying, proof-reading, and in various other ways, whom he sees no reason for not thanking, merely because she is his wife. By proper permission, many of the forms in the first four chapters were taken or adapted from Raff's " Road Laws," a work written before the codification, devoted chiefly to the roads treated of in those chapters. By like permission, a few forms will be found from Peck's "Township Officers' Guide" and Gilmore's "Probate Practice." Cincinnati, Ohio, December 2, 1885. F. G. CONTENTS. PAGE. Preface, Table of Sections, 1X CHAPTER I. State roads, * * CHAPTER II. 17 County roads CHAPTER III. fin Township roads, CHAPTER IV. i 74 Appeals in road cases, CHAPTER V. The opening, repair, and maintenance generally, and certain improving of state, county, and township roads, taxation therefor, and duties of supervisors, and others, in relation thereto, . . 109 CHAPTER VI. Free turnpikes, built and owned by the public, .... 151 CHAPTER VII. One mile assessment pikes CHAPTER VIII. m 199 Two mile assessment pikes, CHAPTER IX. Converting toll-roads into free roads CHAPTER X. Repair of improved roads, (v) VI CONTENTS. PAGE. CHAPTER XI. Turnpike and plank-road companies, 287 CHAPTER XII. Bridges and culverts, 335 CHAPTER XIII. Toll-bridge companies and avenue companies, .... 375 CHAPTER XIV. Railroads, canals, telegraph, and telephone companies, as affecting pub- lic roads, 382 CHAPTER XV. Straightening and cleaning out of rivers, creeks, and other water-courses, and the removal of drift therefrom, for the protection of roads and bridges, 392 CHAPTER XVI. Highways in municipal corporations, 400 CHAPTER XVII. Road records, etc. 417 CHAPTER XVIII. Appropriation of private property by corporations, including turnpike companies and bridge companies, ...... 422 CHAPTER XIX. Appropriation of property by municipal corporations, county commis- sioners, and others, for roads, bridges, etc., .... 450 CHAPTER XX. Animals running at large on public roads, etc., .... 467 CHAPTER XXI. Criminal laws relating to roads, bridges, etc., ..... 473 CHAPTER XXII. The common law of roads, ways, and highways, .... 480 CHAPTER XXIII. County ditches, 525 CONTENTS. VII PAGE. CHAPTER XXIV. Township ditches 593 CHAPTER XXV. Additional provisions as to county and township ditches, drains, and water-courses, ....,••••• "^J CHAPTER XXVI. Rivers, creek, and other natural water-courses, and the removal of drift, mill-dams, and other obstructions therefrom, for sanitary and sim- ilar reasons, ...■...••• "44 CHAPTER XXVII. General and miscellaneous provisions, 660 Index, ni TABLE OF SECTIONS OP THE REVISED STATUTES OP OHIO, SHOWING PAGE ON WHICH FOUND. K 0TE —The pa°-e referred to is the one on which the section, or quoted portion of it, ends', and on which the number of the section may be found in the foot-notes. * Page. $ Page. $ Page. $ Page. $ Page. $ Page. $ Page. 2 170 1460 120 2648 405 3257 293 3498 324 8561a 685 4472 589 3 170 1482 665 2649 406 3258 293 3498o 325 3822 3S0 4473 589 5 265 14 S3 665 21150 406 3259 294 3499 326 3823 380 4474 582 625 40 1 1484 103 2651 409 3260 294 3500 326 3824 380 4475 551 794 342 1484 104 2652 409 3261 294 3501 327 3S25 381 417.". 554 794 34:5 1184 606 2653 411 3262 294 3501fl 328 3^26 381 4476 556 795 349 1503 63 2654 411 3263 294 3502 328 4201 467 4477 553 796 796 338 342 1503 1503 128 265 2655 2656 412 412 3264 3265 295 295 3503 3504 328 329 4202 4203 467 468 4478 4479 558 559 796 344 1506 265 2656 413 3266 295 3505 813 4208 121 44S0 560 796 34.S 1507 265 2657 413 3267 295 3506 313 4204 470 4480 561 796 355 1533 128 2658 413 3268 295 3507 313 4204 470 4481 562 796 356 1651 416 2658 414 3269 288 350.x 313 420:> 469 4482 562 797 347 1652 416 2658 135 3272 295 3509 310 4206 470 4183 573 79S 313 1654 416 2 159 414 3283 385 3510 310 4207 471 4484 574- 79S 344 1700 416 2660 414 3284 386 3511 310 4207 472 44S5 574 798 348 1703 416 2661 136 3285 335 3512 311 4 'JOS 472 44S7 565 799 348 1824 470 2661 415 3290 378 3513 308 4252 670 4488 565 799 354 223 1 450 2662 135 3323 384 3514 308 4253 670 4489 565 799 355 2 '33 450 2662 415 3324 384 3515 308 4254 070 4490 562 799 356 2233 451 2603 415 3324 383 3516 308 425.". 671 4491 563 80.) 349 2234 452 2664 414 3327 300 3517 309 4427 526 4491 564 801 356 2235 452 2822 137 3328 391 3518 309 444s 527 4492 561 802 35S 2236 453 2824 138 3329 391 3519 309 4449 528 4492 527 SO: 1 . 35S 2237 454 2S25 339 3332 391 3520 332 4150 528 4498 573 850 417 2238 456 2829 139 3336 382 3521 332 •1151 528 4404 552 850 418 2239 458 2S30 123 3337 382 3522 333 4152 580 4495 566 860 :;;;■> 2240 457 2830 143 3379 313 3523 333 4 153 533 4495 315 861 330 2240 93 2830 144 3392 313 3524 333 4154 534 4496 567 862 337 2241 459 2855 663 3454 387 3525 333 4454 591 4497 569 86:1 675 2242 459 2836 663 3171 387 3.",' '."> 314 4455 501 4498 571 864 359 2243 456 2837 663 3473 296 ;v,y, 313 4455 559 4498 572 865 392 2244 459 3184 361 3474 297 3527 313 4455 58 1 4499 574 866 392 2245 459 3206 361 3175 297 2528 311 4456 536 4500 575 867 394 2245 460 3,232 288 3476 298 3529 314 4456 591 4,500 628 868 395 224.". 461 3233 288 3477 300 3530 814 4457 53S 4501 575 869 .".'.i i 2246 461 3234 288 3178 301 35:10 330 4457 589 4501 576 871 341 2247 461 3235 288 478a 301 3531 330 4457 541 4501n 576 872 341 2248 462 3236 288 3479 306 3532 330 4458 543 1501/' 576 87:; 341 2249 462 3236 295 3481 300 3533 330 4 150 518 4.502 577 874 341 2250 462 3237 288 :;isi 303- 3534 330 4160 544 4503 577 877 339 2251 46:; 3237 295 348-. 316 3535 831 4461 544 4504 577 894 54 1 2252 463 3238 289 34s: 318 3536 331 4461 547 4,505 577 896 5S0 2253 463 3239 290 3484 319 3537 375 4461 518 4506 589 916 401 2254 461 3242 290 3 184 320 3537 376 4 161 519 4.506 590 917 276 2255 461 3,243 290 3484 321 :;:>:',s 3,76 4 162 519 4506 592 955 419 2256 465 3244 290 348c 321 3539 376) 4463 579 4506 501 956 419 2257 465 3245 291 3481 307 3540 877 4464 581 4. ,07 590 1021 417 2258 465 3246 291 3487 307 3511 377 4 164 582 4507 502 1071 (ill I 2259 465 3247 291 3488 307 3542 377 4465 583 4508 578 1075 690 2260 466 3248 291 3 181 307 3543 378 4 166 581 4500 578 1178 418 2261 466 32 19 292 3491 307 3544 378 4467 585 4510 578 1 11" 128 2 ■: 315 3 !5( 292 3 192 329 85 r 378 4468 586 4511 593 144,5 265 2642 402 3251 292 319: 329 3546 370 4 168 587 4512 505 1446 128 264: 403 3252 292 310 330 :;.".I7 8,0 4 169 587 4513 505 1451 127 2644 404 3253 292 349." 323 3548 3,79 4470 588 4514 595 1451 271 20 r 40 1 325 1 293 3101 323 3",]'. 879 4470 5S9 4.514 596 1457 128 2646 405 3255 293 3197 322 3550 682 4471 588 4515 597 1458 128 2647 405 3256 293 349S ' 323 3551 685 4471 514 4515 593 (ix) TABLE OF SECTIONS. $ Page. $ Page. $ Page. $ Page. $ Page. § Page. $ Page. 4516 595 4568 645 4649 30 4692 81 4745 133 4797 172 4854 259 4517 598 1568 64-; 4651 33 -1693 S3 4746 113 4797 190 4855 240 4518 598 4569 647 4651) 34 169-1 84 4747 134 4798 191 4856 242 4519 598 ■4570 647 4650 38 4694 85 4748 388 4799 166 4857 243 4519 599 4..71 648 4651 32 4695 106 4749 589 48UI 191 -1857 244 4520 599 4572 649 4651 33 4696 107 4750 133 4801 191 4858 245 4520 157:: 650 4651 36 4697 86 ■1751 133 4 Si 12 191 4859 245 4520 606 4574 650 4651 38 4697 98 4752 361 180: 173 4860 234 45-21 601 ! ,7a 650 41152 38 4697 91 4753 361 4804 192 4861 246 4521 607 15,5 651 4652 39 4698 87 4754 134 4805 192 4862 246 4522 602 4576 651 4652 40 4698 90 4755 147 4 HI'' 193 4863 246 452:: 603 45/7 651 4653 42 4698 91 4755 148 4807 166 4864 247 4524 600 4578 651 4653 39 4 6! 19 91 4756 149 4S08 185 4865 249 4525 60 ) 4578 652 4654 43 4699 92 4757 148 4809 193 4866 250 4526 602 I57H 652 4655 45 4700 92 4758 151 48 II 194 4867 251 4526 603 45S0 652 4655 46 4700 93 47.59 152 4811 194 4868 253 4527 623 4581 652 4656 47 4700 95 4760 154 4S12 176 4869 253 4528 603 4581 653 4657 49 4701 95 4760 451 4812 166 4S70 253 4529 606 4582 649 4658 49 4702 93 4761 157 4813 184 4S71 254 4530 ''.'7 4583 649 4659 49 4702 96 4761 157 4814 194 4S72 256 4531 603 4583 650 4666 50 4703 97 4761 152 4815 195 4873 257 4532 618 458 1 650 4661 50 4703 98 4762 157 4816 195 4874 257 4533 019 4615 1 4061 51 4704 100 4762 158 4817 195 4875 257 4534 620 4615 4 4662 52 4704 101 476:; 159 4818 195 4876 263 4534 621 4616 4 4662 54 4705 99 476,4 160 4819 196 4S77 263 4535 622 4617 4 4 '163 59 4706 100 4764 161 482!. I 196 4 878 264 4536 622 •ll'.17 2 4664 59 4707 105 4765 162 4621 196 487S 265 45: '.7 622 4618 2 4665 55 4768 105 4766 165 4822 196 4879 265 4537 623 4618 2 4666 55 4709 105 4707 159 4823 196 4880 267 453? 624 4619 1 4666 56 4710 106 4768 163 4824 197 4881 266 4539 625 4619 2 4667 59 4711 106 4769 163 4*25 197 4882 271 4540 626 4619 3 4668 57 4712 106 4770 163 4826 197 4S83 271 4541 626 4620 4 466.8 58 4713 107 4771 164 4826 198 4884 269 4542 626 4621 5 4669 58 4714 108 4772 164 4827 189 4885 269 4543 60S 4622 6 467(1 59 4715 Ho 4773 164 482 s 198 ism; 271 4513 609 4623 7 4671 61 4715 132 4774 165 4829 201 48S7 268 454:: 619 4624 8 4672 60 4715 112 4775 166 4829 202 4888 267 4.544 619 4624 9 4673 62 4716 U2 4775 168 4830 201 4889 271 45 45 610 4625 11 4673 63 4717 116 4775 106 4831 201 -1889 264 4545 611 4626 15 46,74 03 4717 117 4775 171 4831 203 4890 272 4516 611 4627 12 4674 65 4718 US 4775 172 4S32 20 1 4891 272 4547 611 4627 101 ■ill, 5 65 4719 120 4776 173 4833 206 4892 273 4548 612 4628 102 4076 66 4720 120 4777 174 4S34 206 4891: 273 4549 613 4628 102 4676 67 4721 H7 4777 175 4834 207 4891 274 455ii 613 4629 102 4677 68 4721 118 4778 170 4835 207 4895 274 4551 613 4629 103 4677 69 ■1722 118 4778 178 4836 209 4896 274 4552 613 4629 13 4678 OS 4722 129 4779 178 4836 210 4897 275 4552 614 13 4678 70 4723 119 4780 169 4837 213 4898 275 •i 614 4631 13 4679 70 1724 118 4780 170 4858 217 4898 276 4551 615 4632 103 4680 80 4725 119 4780 171 485'.! 215 4899 279 455 1 616 46,33 15 4680 71 4726 123 4780 173 4840 217 1899 280 1 619 4633 13 4681 72 4727 121 47S1 171 4810 216 4899 282 4556 617 4631 16 4682 72 4728 127 4781 173 4841 218 4900 280 027 4635 16 46S3 71 4728 123 4 782 180 4841 219 4901 2S2 4560 627 4636 16 4683 86 4729 121 4782 181 484. 227 4901 2.8.3 658 4637 17 46,8| 61 4730 122 4783 182 48-42 228 4902 283 4561 659 1638 17 61 4731 122 4784 183 48-1:; 230 4903 2S3 1 1638 .39 > 69 4731 286 4785 180 4843 231 4904 283 396 4638 20 4687 15 4732 130 4786 178 4811 233 4904 285 4504 1639 20 4687 56 4733 122 4787 180 4845 233 4905 283 A ,6 396 (640 17 4687 69 4734 131 4788 183 4815 234 4906 2-4 4566 397 !■ .11 19 4687 75 4735 120 4789 183 4816 207 4907 284 •1 167 645 [642 21 4687 86 4736 131 184 18 1,; 2: :5 4908 673 4567n 653 1643 27 75 4737 145 4791 184 4847 257 4908 674 653 16|| 27 76 4738 140 •1792 186 4848 237 4909 668 4567* 654 27 4689 78 4739 142 4793 187 4849 247 4910 669 45117/- 655 1645 78 4740 131 4794 187 4850 237 4911 669 1 6 5 1646 23 4690 79 4741 127 4795 171 48.51 238 4912 667 4567c 1647 23 4691 79 4742 127 4796 187 4852 214 1913 261 4567c 1647 24 4691 80 4748 116 4796 188 485:; 218 4914 258 4567c 658 46 is 29 4692 80 4744 132 4796 189 4853 238 4915 1 258 TABLE OP SECTIONS. XI $ ! | ;e $ Page. 5 age. $ Page. 4910 259 4933 672 49 15 362 6419 423 4916 260 1934 G73 4946 363 6420 430 4917 260 4935 673 4971 417 0121 431 4918 261 4935a 419 5022 315 0421 432 4919 661 4935a 420 5028 315 0122 432 4920 662 1935* 421 5033 315 0123 433 4921 662 1935c 421 5040 427 6424 433 4922 667 1936 337 5048 240 6425 433 4)s; 668 4937 338 5264 29 0125 431 4924 338 4938 336 5209 29 6420 434 492b 146 1939 336 5305 403 6427 434 1926 14(3 4910 336 0400 82 042S 43,5 4927 llii 1941 358 6411 240 6429 430 4928 140 4941« 361 6414 122 6130 436 4929 146 4941a 3G2 6415 424 0131 437 4930 147 4941* 362 0410 425 6 132 437 4931 671 4942 359 0117 426 0132 43S 4932 671 4943 359 6418 427 6433 410 4932 672 4944, 362 6434 6434 6131 643 6436 643' 6438 6139 0440 0111 6 142 6443 6414 6 1 15 6110 6417 6448 6448 Page 442 443 411 441 439 410 446 447 448 420 410 446 447 417 447 447 417 448 $ Page. 5 Page. 6449 lis 6882 473 6449 447 6884 179 1450 447 6908 474 6450 lis 6919 477 6451 448 6920 477 6451 419 6921 475 645 ' 4 19 6922 474 64 443 123 475 6453 452 1 6925 476 6453 421 6926 476 6707 403 0027 476 6707 98 7001 474 6740 98 7025 478 6831 471 7u :s 478 OS |2 478 7092a 421 6869 473 7050 338 0870 473 7769 390 6879 473 7770 338 ROAD LAWS OF OHIO. CHAPTER 1. STATE KOADS. 1. Definition of. — A state road is a road running into or through two or more counties. 1 2. Petition for. — Proceedings for laying out a state road must be beo-un by filing, with the county commissioners of each county through which it is designed to have it pass, a petition specifying the place of beginning, the intermediate points, if any, and the place of termination of the road. 2 Each petition must be signed by at least tweuty freeholders of the county in which it is filed. 3 3. These petitions, and the bonds mentioned in paragraph 7, must be filed at the same session of the commissioners in each of the counties interested. 4 4-6. Form of petition. To the board of commissioners of county, Ohio: The undersigned petitioners, resident freeholders of the said county, respectfully represent that the public convenience requires the estab- lishment of a state road on the line designated below; and pray that your body will institute and order the proper proceedings in the prem- ises to establish such road along the following described line: Begin- ning at in the county of , thence to \_here specify the intermediate points in their order, if any, and the place of termination. ~\ Dated , 18 — . [_Signatures.~\ 7. Bonds to be given. — Before granting an order on such petition, one of the parties in each county interested in the location of the road, must- enter iuto a bond with two or more responsible free- holders in such county as sureties, to the satisfaction of the county commissioners, payable to the state, and conditioned for the pay- 1 State v. Troas. of Wood Co , 17 O. 184. 3 § 4617. 2 §§4615, 4616. *§4619. 2 ROAD LAWS OF OHIO. [CHAP. 1, 8-16. ment of all expenses which may accrue in the location of the road, in case it should not be established a public highway. 1 8, 9. Entry of filing petition, and order for giving bond. In the matter of the petition of A. B., ) n .... „, j , z ? ? i ■.,, e aaj t J etitton filed, and bond ordered. and others, for a state road. j J ' On motion of [st ■ 'e ■ < '»/ ; see par. 1 and note 2, page 417]. The petitioners having made application for the establishment of a state road along the following described route, to-wit [here' insert the description contained in the petition] : It is therefore ordered that one of the parties interested in the location of such road, give bond to the State of Ohio, for the use of county, in the sum of dollars conditioned according to law, with sureties to be approved by this board, before further proceedings be had upon said petition. 10-14. Form of such bond. Know all men by these presents, that we, A. B., C. D., and E. F., all of county, Ohio, are held and firmly bound unto the State of Ohio, for the use of said county, in the sum of dollars, to the payment of which we do hereby jointly and severally bind ourselves, if default be made in the condition following: Signed by us at , this day of , a. d. 18 — . Whereas, the said A. B. has, with others, filed his petition with the commissioners of said county of , praying for the establishment of a state road along the following described route, to-wit [here describe the route of the proposed road, as in the petition] : Now, if the said A. B. shall pay all the expenses that may accrue in the location of such road, in case the same should not be established a public highway, then these presents shall be void, otherwise they shall be in full force and effect. [ Witnesses, if desired.] 2 [Signatures.] 15. Appointment of road commissioners. — The petition and bond being properly signed and filed, the county commissioners of each county through which the road is proposed must appoint one dis- interested freeholder of their respective counties as commissioners to view and survey the road. 8 16. The commissioners so appointed will, in this chapter, be designated as road commissioners, to avoid confusing them with the county commissioners. i §4618. 2 Witnesses to signatures, to bonds are sometimes required by the practice df certain places, but are not required by law. Private seals are abolished. See 81 O. L. 198. Therefore seals after signatures are useless. 3 g§ 4617, 4G19. CHAP. 1, 17-23.] STATE ROADS. 3 17, 18. Form of appointment of road commisswner, etc. 1„ the matter of the petition of A. } Bond fled, and commissioner ap- B. and others, for a state road. > pointed. ( m motion of . A. B., one of the parties interested in the location of said road in county' having filed his bond in the sum of dollars, with C. D. and E. F., sureties, payable to the State of Ohio, for the use of county, and conditioned for the payment of all expenses that may accrue in the location of said road, in case the same should not be es- tablished a public highway, which bond is accepted and approved; and it appearing that said petition is signed by at least twenty resi- dent freeholders of county, it is ordered that 0. P., a disinterested freeholder of said county, be, and he hereby is, appointed a commis- sioner on the part of said county of , to view and survey said road. 19. Duties of county and road commissioners; appointment and oath of surveyor, chain-carrier, etc.— The county commissioners must then issue their order, directing these road commissioners to meet at the place of the beginning of the road, on the first Wednesday of the month then next ensuing. The road commissioners, when met, must employ a skillful surveyor, chain-carriers, a marker, and other assistants, if necessary, and proceed to the discharge of the duties of their appointments respectively ; and each commissioner, surveyor, and chain-carrier must, before entering on the duties of his appointment, take an oath to discharge his duties faithfully and according to law. 1 20-23. Form of order to be issued to road commissioners. The State of Ohio, county. To 0. P., greeting : We have appointed you a commissioner, on the part of said county, to view and survey a state road petitioned for by A. B., and others, along the following described route [here state ihe route]. We direct that you meet with the commissioners appointed by the other county [or counties] inter- ested in said road, at the place of beginning of said road, on the first Wednesday [here name the month next after the one inn-Inch the order was made], to view and survey said road, and do such other things in the premises as are required of you by law ; 2 and that you make report i§4619. 2 This order may be general in its terms, as here given, or it may state fully and in detail what is required of these road commissioners, as is done in a similar order in chapter 2, pars. 45-52. 4 ROAD LAWS OF OHIO. [CHAP. 1, 24-31. of your proceedings under this order, to this board, on or before the first day of the next regular session thereof. Given under our hands, this day of , a. d. 18 — . [Signed by county commissioners.^ 24-27. Form of oath and certificate of oath of road commissioners, sur- veyor, etc. The State of Ohio, county. Before me, the undersigned authority within and for said county, personally came 0. P., Q. R,and S. T., commissioners, U. V., surveyor, and M. N. and J. K., chain-carriers of a state road petitioned for by A. B., and others, commencing in the county of , and terminating in the county of , and were by me duly sworn to discharge, faith- fully and according to law, the duties of their several appointments. [Signed here by 0. P., Q. R., S. T., U. V., M. N., and J. K.] Sworn to and subscribed before me, this day of a. d., 18 — . , Justice of Peace [or other officer\. 28. Such a certificate should be returned, with a copy of the re- port of the commissioners and surveyor, to the county commis- sioners of all the counties through which the road passes. 29. Route and width of road, etc. — Each state road must be not over sixty nor less than forty feet wide, and must be laid out from the place of beginning to the place of termination on the most direct route that suitable ground can be found whereon to establish it, always having regard to the intermediate points, if any. 1 30. Are public highways. — All such roads are declared by law to be public highways. 2 31. Survey, etc., of road; return of survey, plat, etc. — The road commissioners so appointed must cause the proposed road to be correctly surveyed and marked throughout its whole distance, and note its courses and distances ; and at the end of each mile, must mark its number on a tree, or on a monument erected by them for that purpose ; and the commissioners and surveyor of each road must make a certified return of the survey and plat of the whole length of the road, specifying therein the distance the same is laid out in each county, and whether, in their opinion, the public con- 1 H 4615, 4620. 2 1 4620. As to the rights of owners of adjacent lands, of persons travel- ing on the road, "the law of the road," etc., see chapter 27. CHAP. 1, 32-38.] STATE ROADS. 5 venience requires the establishment of the road, or any part of it. One complete copy of this return must be signed by a majority of the road commissioners and the surveyor, and immediately deposited in the commissioners' office in each county in which any part of the road is laid out, and the auditor of the county must file this re- turn in his office. 1 32-38. Form of report of the commissioners and surveyor. To the board of commissioners of county, Ohio: The undersigned commissioners and surveyor of a state road peti- tioned for by A. B. and others, and prayed to be located in the counties of and , submit the following report: In pursuance of their several orders of appointment the said com- missioners met, at the time and place specified in said orders, to wit: On the first Wednesday (being the day) of , IS—, at the place of beginning proposed for said road, and after being duly sworn to dis- charge their duties faithfully and according to law, employed U. Y., surveyor, M. N. and J. K., as chain-carriers, and L. L. as marker (the said surveyor and chain-carriers being also duly sworn as aforesaid), and thereupon they all proceeded to the discharge of the duties of their several appointments. They fixed, as an initial point of said road, a stone, at [here mention particularly the place of beginning], and starting thence laid out and sur- veyed said road along the following route [here give the line of the road, as surveyed, from commencement to termination, mentioning the intermediate points'], and caused the same to be correctly surveyed and marked the whole distance, noting the courses and distances, and at the end of each mile marking its number upon a tree, or a monument specially erected; as will more fully appear by the survey and plat hereto at- tached, and made a part of this return. The route so selected for said road is the most direct for which suitable ground could be found, be- tween the places of beginning and termination of the same, having re- gard to the intermediate points. Said road is laid out miles in the county of ; miles in the county of [efc.] ; and the whole distance thereof is miles. In their opinion the public convenience requires [or, does not re- quire] the establishment of said road. 1 £ 4621. The laying out a state road over the same ground upon which a part of a county road was established, does not extinguish the county road. The two may well co-exist as to the part occupied in common, for the benefit of different classes of the traveling public. Bisher v. Kichards, 9 O. S. 495. 6 ROAD LAWS OF OHIO. [CHAF. 1, 39-42 [Should the road commissioners be of opinion that a part only of said road ought to be established, they should so state.~\ Given under our hands this day of , a. d., 18 — . Time employed: commission-"] ers, 4 days each; surveyor, 4 I ^ Qnec i i y CO mmissio?iers and surveyor. days; chain-carriers, 3 days each; a marker, 3 days. J 39. Notice by publication to interested persons. — If the road com- missioners report in favor of the establishment of the road, the county commissioners of the respective counties must, at their next session after the filing of the report, order the auditor to have a notice published in some newspaper of general circulation in the countv, for four consecutive weeks before the next meeting of the board, notifying all parties interested in the establishment of the road, that the commissioners of the counties will hear parties in favor of or against its establishment, and the application for dam- ages and compensation for lands appropriated, of any person on ac- count of the location of the road through his lands. 1 40, 41. Form of such order. In the matter of the petition of) Qrdcr as to noiice f filing report. A. B. and others tor a state road. j On motion of . The commissioners appointed to view and survey said road having filed their report, whereby it appears that in their opinion the public convenience requires the establishment of said road, it is ordered that the county auditor cause notice of the filing of said report to be pub- lished in some newspaper in general circulation in county, for four consecutive weeks before the next meeting of this board, inform- ing all persons interested in the establishment of said road, that the board will hear the parties in favor of and against said road, and the application of all persons by whom damages and compensation are claimed by reason of the location of said road through their lands. 42. Form of such notice. Notice — All persons interested in the establishment of the state through the counties of , petitioned for by A. B. and others, are hereby notified that the commissioners of said road have made a report in favor of the same, and that the county commissioners of county will, at their next regular session, to be held on the first Mon- day j n ( is — , hear the parties in favor of or against the establish- i ^ 4622. CHAP. 1, 43-47.] STATE ROADS. 7 merit of said road; and also all applications for compensation and damages claimed by reason of the location of said road through the lands of any proprietor or proprietors. , 18 — . W. C, Auditor of County. 43. Damages considered released, hotv. — All persons who do not make application for compensation or damages at the next regular session of the county commissioners, after the publication of such notice, must be considered and held to have released all claim to damages by reason of the location of the road. 1 44. Second notice must be published. — But the law further provides that if there be any lands whose owners have not granted the right of way, nor filed their application for damages with the county com- missioners, the whole case must be continued to the next regular session of the commissioners; and that they must again order the auditor to cause notice to such owners and all other persons inter- terested, to be published in some newspaper of general circulation in the county, for four consecutive weeks before their next meeting, that they will, at such meeting, hear all applications for damages. 2 45, 46. Form of order requiring second notice to be given. In t lie matter of the petition of A.) ^ , • • „ ,7 „„*:..., t, , , , „ ? l Order requiring second notice. B., and others, tor a state road. J 1 * On motion of . It appearing that there are lands through which said road is located, the owners of which have not granted the right of way, nor filed their application for compensution and damages as authorized by law, it is ordered that said matter be coutinued to the next regular session of this board, and that the county auditor give notice, to be published in some newspaper of general circulation in county, for four con- secutive weeks before said next meeting, informing said owners and all other persons interested, that this board will, at said meeting, hear all applications for compensation and damages. 47. Form of second notice. Notice. — All land-owners affected by the location of the state road through counties, petitioned for by A. B., and others, and all other persons interested, are hereby notified that the county commis- sioners of county will, at their next regular meeting, to be held on , the day of , IS — , hear all applications for compen- sation and damages that may arise by reason of said location. 1 \ 4623. See pars. 48-50, below, also notes on p. 23, as to granting right of way, etc. 2 \ 4623. It is evident that " damages " in the statutes often means " com- pensation and damages." For difference, etc., see par. 77, chap. 27. See also par 59, chap. 7, and par 77, chap. 27. 8 ROAD LAWS OP OHIO. [CHAP. 1, 48-55 48. Relinquishment of damages and right of ivay may be obtained by the petitioners, or by any one of them, from any person through whose land the road may be located. 1 49. Form for relinquishing compensation and damages. For and in consideration of the advantages which will result to the public in general and to the undersigned in particular, from the location and construction of the state road petitioned for by A. B., and others, through and other counties in Ohio, as now surveyed or as it may be finally located, and for the purpose of aiding in the completion of said road, I [_or, we] do hereby relinquish all compensation and dam- ages that may accrue or might be claimed by me [or, us] by reason of said road passing over my [or, our] land in said county. [Signature or signatures.^ 50. As to granting right of way. — An instrument granting the right of way may be practically a quitclaim deed, signed and acknowl- edged as other deeds must be, except as to dower and curtesy. 2 But the object aimed at is accomplished as well by the foregoing relinquishment of damages as it could be by such a deed, since the commissioners have the power to appropriate the use of the land for the road, and all that is desired is to avoid the payment of damages for it. If it could be known in advance, in some other reliable way, that the land-owner would neglect to claim damages, as specified in paragraphs 43, 44, above, no such instrument as the above even, could be of any use. 51. What aggrieved person must do. — If any person consider him- self aggrieved by the location or widening of the road through his premises, he may file a petition in writing, describing the lands on which he claims damages, with the commissioners of the proper county, at their next regular session after the publication of the notice provided for in the preceding paragraphs, 1 which may be in form as follows : 52-55. Form of petition of land-owner for damages. To the board of commissioners of county, Ohio: Your petitioner respectfully represents that he is the owner of the following described real estate in said county, to-wit [here describe the property in full] : 1 \ 4G24. 2 See pars. 92, 93, chapter 7, and pars. 18-25, chapter & CHAP. 1, 56-59.] STATE ROADS. » That the commissioners appointed to view and survey the state road petitioned for by A. B , and others, have laid out said road across said premises, to the great injury of your petitioner. Your petitioner, therefore, asks that such proceedings may be had, to assess and determine the compensation and damages to which he may be entitled by reason of the appropriation of his said property, and the location of said road across the same, as may be authorized u i A. P. by law. 56. Sow damages assessed.— If claims for damages are filed, the county commissioners must appoint a jury of three disinterested freeholders of the county, who, after taking an oath faithfully and impartially to discharge the duties imposed upon them by law, must proceed to view the road the entire distance it has been located through the premises of the complainant, and of minors, idiots, lunatics, or insane persons, where they are known, and assess the compensation to be paid in money for the property sought to be appropriated, without deduction for benefits arising from the loca- tion of the road. 1 For principles governing such assessment of damages, see paragraphs 72-77 of chapter 27, and notes thereto. 57, 58. Form of appointment of jury to assess damages. In the matter of the peti- } tion of A. B. and others for V Order appointing jury to assess damages. a state road. J It appearing that petitions for the assessment of compensation and damages have been filed by (name them), land-owners over whose prem- ises said road has been laid out, it is ordered, on motion of , that L. N., R. C, and P. K., three disinterested freeholde; s of county, be, and they hereby are, appointed a jury, to assess, according to law, the compensation to be paid the several claimants, in money, for their prop- erty sought to be appropriated to the use of said road, without deduc- tion for benefits arising from the location of the road; and also the damages said claimants will suffier in consequence of the establisement of said road. And it is further ordered, on motion of , that said jurors make a report, in writing, of their proceedings in the premises, to this board, at its next regular session. 59. Form of oath of jury. You and each of you do solemnly swear [or, solemnly, sincerely, and truly declare and affirm], that you will faithfully and impartially dis- charge the duties enjoined on you by law, as jur ors to assess compen. 1 1 462 \. Sec note 2, page 7, unci par. 77, chapter 27. 10 ROAD LAWS OF OHIO. [CHAP. 1, 60-70. sation and damages to persons claiming the same on account of the location over their premises of the state road in the counties of and , petitioned for by A. B. and others, according to the best of your understanding and ability. So help you God. [Or, this you do under the pains and penalties of perjury.] 60-62. Form of certificate of oath of jury. The State of Ohio, county : On the day of , a. d. 18 — , before me, the undersigned au- thority within and for said county, personally came L. H., K. C. and P. K., and were sworn faithfully and impartially to discharge the duties enjoined on them by law, as jurors to assess compensation and dam- ages to land-owners, by reason of the location over their premises of the state road in the counties of and , petitioned for by A. B. and others. [Signed by L. H., R. C, and P. K.] Sworn to and subscribed before me, this day of , a. d. 18 — . C. C, Justice of the Peace [or other officer']. 64-70. Form of report of jurors to assess damages. To the board of commissioners of county, Ohio : The undersigned, jurors appointed to assess the compensation and damages to which [Here mention the names of the persons who petitioned for damages'] are entitled by reason of the location over their premises of the state road in the counties of and , petitioned for by A.B. and others, submit the following report : Having been first duly sworn, they proceeded to view so much of said road as is laid out upon the premises of the aforesaid claim- ants, as well as upon the premises of G. B., a minor, and after careful inspection of the same, they are now of opinion, and do award and de- termine: 1. That D. S. be paid the sum of dollars as a compensation for the land and property belonging to him, sought to be appropriated to said road. 2. That H. R. be paid, etc. 3. That G. B., a minor (over whose premises said road is also laid out), be paid the sum of , [etc. See form on page 32.] All which assessments we do make without deduction for benefits derived or to be derived by said real estate owners, or their said prop- erty, from the location of said road. Given under our hands, this day of , a. d. 18 — . [Signed by jurors.] Time employed: Jurors, each, 2 days. CHAP. 1, 71-74.] STATE ROADS. 11 71. Payment of damages, and establishing road. — If the commis- sioners are satisfied that the amount so assessed and determined by the jury is just and equitable, and that the road or any part of it will, in their opinion, be of sufficient importance to the public to cause the compensation and damages to be paid by the county, they must order the same to be paid to the claimant from the county treasury: but if, in their opinion, the road is not of sufficient im- portance to the public, to cause the same to be paid by the county, they may refuse to establish the same a public highway, unless the damages and expens.es are paid by the petitioners ; but if there be no applications for damages, or if the damages are paid by the county or petitioners, the commissioners may establish the road a public highway, and order the same to be recorded. 1 72, 73. Form of order establishing road, the county paying damages. In the matter of the petition of A. ) ^ , . ,,. 7 . , B. and others, for a state road. \ 0rder > «***&**»«* road. On motion of . The jurors appointed to assess compensation and damages to land- owners, having reported that they awarded to {state amounts, to whom, etc.'] and the board being of opinion that said assessments are just and reasonable, and that said road is* of sufficient importance to the pub- lic to justify the payment of said assessments out of the county treasury, it is ordered that the auditor draw his order upon the treasurer, in favor of the several claimants, for the amounts so as aforesaid assessed to them, respectively. And it appearing that the commissioners appointed to view and survey said road have reported in favor of the establishment of the same, and this board being of opinion that the public convenience requires its establishment, it is ordered that said road, as laid out and surveyed by said commis- sioners, through the county of , be established and recorded a public highway. The claimant II. R. gives notice of appeal. 74. Form of order requiring jietitioners to pay damages. (Proceed as in foregoing order to the *, then add, instead of what there fol- lows, these words), not of sufficient importance to the public to warrant the payment of said assessments out of the county treasury, it is, therefore, ordered that the petitioners pay, or tender to pay, to the said claimants, the amounts assessed to them, resspectively, forthwith; 1 § 4625. See note 2, page 7. 12 ROAD LAWS OF OHIO. [CHAP. 1, 75-80. and that no further proceedings be had in the premises until such payment or tender be made. 75, 76. Form of order establishing road, the 'petitioners or others having paid the damages assessed. In the matter of the petition of A. ) ^ , , ,,. ,. , ■n n , , n . l , , >■ Order, establishing road. B. and others, for a state road. J d It appearing that the petitioners have paid H. R. and G. B., the several amounts awarded them by the jury, and have tendered to D. S. (and upon his refusal to accept, have deposited in the county treasury, subject to his demand), the amount of compensation assessed to him by said jury ; and the board being of opinion that the amounts assessed to said claimants are reasonable and just, and that the public convenience requires the establishment of said road, it is ordered that said road, as laid out and surveyed by the commissioners appointed for that purpose, through the county of , be established and re- corded a public highway. The said D. S. gives notice of appeal. 77, 78. Form of order refusing to establish road. t, n , , . c J r , P , \ Order, refusing to establish road. B. and others, ior a state road. j ' J a The board being of opinion, after careful consideration, that the public convenience does not require the establishment of said road, the prayer of the petitioners is refused, and it is ordered that they pay the costs and expenses which have accrued and been occasioned by the filing of said petition. 79. Appeals. — An appeal from the final decision of the commis- sioners on any application for damages or compensation sustained by the location of a state road must be allowed, and proceedings will be had thereon, and the decision of the court will be certified back to the commissioners, as more fully set forth in subdivision 5 of chapter 4. 1 80. When costs and damages paid by county. — If, upon the re- ception of the decision obtained in the probate court, the county commissioners do not deem the road of sufficient importance to cause the expenses incurred and damages assessed in the probate court to be paid by the county, they may refuse to establish the road unless the parties interested in its location, shall pay or cause i §g 4627, 46-28, 4629. See subdivision 5 of chapter 4. 13 CHAP. 1, 81-88.] STATE KOADS. to be paid, before the opening of the road, to the satisfaction of the county commissioners, in case the road is established a high- way all expenses incurred and damages assessed. 1 81 Part onh, of road may be established. -The commissioners, it in their*o P inion a part only of the road will be of public utility, may record and establish such useful part, and reject the residue, in case it be capable of division. 2 82 When the road can be established.-If the expense and damages are paid or secured to be paid as mentioned in paragraph 80, or if the commissioners direct the same to be paid by the county they must enter an order that the road be established a public highway. 83, 84. Form of order of commissioners establishing road, after appeal Tn the matter of the petition ) . of A. B and others, for a state Order, establishing road, after appeal. r °it appearing from the transcript of the record of the proceedings had in the probate court, that the jury appointed therein to assess compensation to D. S., one of the claimants in this case, has awarded him the sum of dollars, and the board being of opinion that said road is of sufficient importance [or, is not of sufficient importance- and finish as informs above, making such modifications as the fads may re- quire~\. 85 Em width of road may be changed.-The county commissioners may, if they deem it just and proper to do so, reduce the width of any state road, or of any part of it, within their county, to not less than forty feet, or may increase its width to not more than sixty feet if a petition asking for such change, signed by at least twelve freeholders of the county, be presented to them, and notice thereof be given for four consecutive weeks in some newspaper of general circulation in the county. In that case the commissioners must ap- point three disinterested citizens of the county to view and report to them, under oath, as to the utility of the proposed change, and also the width which in their opinion would be necessary. 86-88. Form of petition to change width of road. To the board of commissioners of county, Ohio : Your petitioners, resident fre eholders of said county, r es pectfully " 1§ 4629. " 2 H630. '14681. *1«88. 14 ROAD LAWS OF OHIO. [CHAP. 1, 89~95. represent that so much of the state road leading from , in the county of , to , in the county of , as lies within the county of , is of unnecessary width, and that the public convenience does not require that the same should be more than - — — feet wide [or, is of insufficient width, and that the public convenience requires that the same should be not less than feet wide]. Your petitioners therefore pray that the necessary proceedings may be had to change the width of said road accordingly. [Date.] 89. Form of notice of petition to change width. Notice — Is hereby given that a petition will be presented to the commissioners of county, at their next regular session, to be held on the day of , a. d., 18 — , praying that the width of so much of the state road leading from , in the county of , to , in the county of , as lies within the county of , may be reduced to forty feet [or, increased to sixty feet]. 90, 91. Form of appointment of viewers. In the matter of the petition of A. B. ] and others to change the width of state > Order appointing viewers. road. [See note 2, p. 417.] ) It appearing that said petition is signed by at least twelve resident freeholders of the county, and that notice of the filing of said petition has been given, according to law, it is ordered that C. T., P. S., and R. G., three disinterested citizens of the county, be, and they hereby are, appointed a committee to view and report, under oath or affirmation, as to the utility or inutility of the change proposed by the petitioners, and the width which, in their opinion, the public convenience requires that said road should be. It is further ordered that said viewers report to this board at its next regular session. 92-95. Form of oath and certificate. The State of Ohio, county : On this day of , a. d., 18 — , before the undersigned authority within and for said county, personally came C. T., P. S. and R. G., and made oath that they would, according to the best of their understand- ing and ability, faithfully and impartially discharge the duties enjoined on them by law and the annexed order, as viewers of a proposed change in the width of the state road, as petitioned for by A. B. and others. [Signatures of C. T., P. S. and R. G.~] Sworn to and subscribed before me this day of , a. d., 18 — . C. L., Justice of the Peace [or other officer\. CHAP. 1, 96-104.] STATE ROADS. 96. This certificate should be attached to the foregoing order of appointment and be returned with it. 97-99. Form of report of viewers. To the board of commissioners of county Ohio: The undersigned respectfully report, that, being first duly sworn, they viewed so much of the state road leading from _, in the county f i_ to , as lies within the county of , and inquired into the expediency and propriety of the change in the width of said road proposed by A B. and other petitioners; and being fully advised in Cp misL, they are of opinion that such change would be useful and subserve the best interests of the public and that a width of road of forty feet only is necessary [or, that a width of road of at least fifty feet is necessary, or otherwise, as may be]. Given under our hands, this day of , a. d lb—. Time employed, viewers, one day each. [Signed ly viewers.] 100 When order may be executed.- -No order for the alteration in whole or in part, of a state road can be executed until twenty days after such order has been entered of record by the commissioners. 101 Compensation of commissioners, employes, etc.—lhe following persons required to render services under this chapter will receive compensation for each day necessarily employed, as follows, to wit : Commissioners, two dollars; chain-carriers, markers, and other as- sistants, one dollar, and surveyors two dollars and fifty cents per day each, to be charged as costs and expenses; the commissioners to be paid out of the county treasury of their respective counties, ou the order of the county auditor; and the fees of the surveyor, marker, chain-carriers, aud other assistants, must be equally divided among all the counties interested, and paid out of he county treasury of the respective counties on the order of the county auditors. 2 See also paragraph 159, chapter 4. _ _ 102 Record of change must be made.-U the county commission- ers make any change of width they must order the county auditor to make a record of the same. 5 103, 104. Form of order changing width of road. In the matter of the petition of A. B. and j g rder c } iang i ng width. others to change the width of the state road. J _ The viewers appointed at the last session having reported in favor 16 ROAD LAWS OF OHIO. [CHAP. 1, 105-108. of the change in the width of said road proposed by the petitioners, and the board being of opinion that it will be just and proper to make such change, it is ordered that said road be reduced in width from sixty feet, as originally established, to forty feet [or, that said road be increased in width from fifty feet, as formerly established, to sixty feet, or otherwise, as may 6e], and that the county auditor make a record of the same. 105. How road tarried, altered, vacated, etc. — Any part of a state road in any county may be turned or altered, or its beginning or true course ascertained, or, where it has become useless or has re- mained unopened for the term of five years, may be vacated by the commissioners of such county ; and when it has been injured or de- stroyed, it may be repaired by the township trustees. 1 106. Proceedings for such purposes must be conducted as in like cases for county roads. 1 See chapter 2. 107. Certain alterations established. — The law provides that all alterations of state roads heretofore or hereafter made and estab- lished, shall form part of said road, and that so much of the orig- inal road as lies between points which the alteration intersected shall be and remain vacated. 2 108. Vacation by non-user. — Any state road or part of such road which has heretofore been authorized, which remains unopened for public use for the space of ten years, must be vacated, and the au- thority for opening revoked for non-user. 3 1 1 4634. 2 1 4635, as amended 80 O. L. 64. 3 § 4636. The public right to a highway may be lost by non-user. Fox v. Hart, 11 O. 414. See note to par. 264, of chapter 2. CHAP. 2, 1-2.] COUNTY ROADS. 17 CHAPTER II. COUNTY ROADS. 1 1. Definition and width of.— A county road is one established as such by the county commissioners, and lying wholly within the county. 2 All such roads established after January 1, 1880, must be not less than thirty nor more than sixty feet wide, to be de- termined by the viewers. But if the road is on the state line, the county commissioners may determine the width, taking ^not less than fifteen nor more than thirty feet of land in this state. 3 2. Proceedings, how begun— Petition— Applications for laying out," altering, changing the width of, or vacating any county road must be by petition to the county commissioners, signed by at least twelve freeholders of the county residing in the vicinity where the road is to be laid out, viewed or reviewed, altered or vacated. 4 Such petition must specify the place of beginning, the intermediate points, if any, and the place of termination of the road, or part proposed to be altered or vacated/ 5 i An ac t providing for the improvement of a designated county road is local in its nature, and not in conflict with article 2, section 26, of the con- stitution, which provides that, "all laws of a general nature shall have a uniform operation throughout the state." State v. Commissioners, 35 O. S. 458. . An act requiring county commissioners to cause a designated road to be improved, and to lew a tax to defray the expense thereof, where the road is open to the-public, is not invalid for want of power in the general assem- bly to pass it. lb. 2 See Wells v. McLaughlin, 17 O. 99. A conveyance of land to the county commissioners for a county road, the acceptance of such grant by the county commissioners, the opening of the road by their order, and its subsequent use as such by the public, and by the proper authorities, constitute it a legal public highway, notwithstanding the want of statutory proceedings for its establishment. 23 O. S. G10. 3 § 4637. See note to par. 66, chapter 8. * I 4638. See note to par. 31, chapter 1 ; also, Beebe v. Scheldt in note to par. 1 chapter 5; also, note to par. 1, chapter 4. & § 4640. The power conferred upon county commissioners to lay out and 2 18 ROAD LAWS OF OHIO. [CHAP. 2, 3-11. 3-6. Form of 'petition for a new road. To the board of commissioners of county, Ohio : The undersigned petitioners, resident freeholders of said county, re- spectfully represent, that the public convenience requires the location of a county road along the following described route, to wit: Begin- ning at [describe the line of the road filly, giving the intermediate points and place of termination]. Said petitioners therefore ask that such proceedings may be had to establish such road, as required by law. [ Date. ] [Signatures. ] 7-9. Form of petition for change in old road. To the county commissioners of county, Ohio: The undersigned petitioners, resident freeholders of said county, re- spectfully represent that the public convenience requires that the county road leading from to , in said county, should be al- tered [or, widened, or, narrowed, etc., as may be] between the following points, to wit: [Give the points, and describe clearly the change desired]. Said petitioners therefore ask that the necessary proceedings may be had to establish such alteration, according to law. [Date.] [Signatures.] 10. After the jurisdiction of county commissioners, in the matter of laying out or altering a county road, has attached by the filing of a proper petition, etc., such jurisdiction can not be defeated by any number of the petitioners afterwards becoming remonstrants against the granting of the prayer of the petition. 1 11. Notice of fling petition. — Before any such petition being pre- sented, notice thereof must be given by advertisement set up at the auditor's office, and in three public places in each township through which any part of the road is to be laid out, altered, or va- cated, at least thirty days previous to the meeting of the commis- establish county roads, authorizes them to locate a road within or through an incorporated town or city. Wells v. McLaughlin, 17 O. 99. County Commissioners have power to establish county roads whose termini are wholly within the limits of an incorporated town or city. But- man v. Fowler, 17 O. 101. 1 Grinnell v. Adams, 34 O. S. 44. The filing of such petition, giving notice and execution of bond (as to these, see below), confer . upon the county commissioners power to act. lb. 45. CHAP. 2, 12-23.] COUNTY ROADS. 19 sioners at which the petition shall be presented, and stating the time when such petition is to be presented; and its substance must be published for four consecutive weeks before its presentation, in some newspaper published in the county in which the road described in the petition is situated, if there be a newspaper in that county. 1 12, 13. Form of notice, in case of new road. Road Notice. — Notice is hereby given that a petition will be pre- sented to the commissioners of county, at their session, to be held on the first Monday of , a. d. 18 — , praying for the* establishment of a county road along the following described route in said county, to-wit [describe the road as in the petition]. [Date.] [Signatures.] 14, 15. Same, in case of widening, etc., road. [Follow the foregoing form to the *, then add] widening [or, narrowing, etc.] of the county [or, state] road leading from to , in said county, between the. following points : [Name the points, and if neces- sary describe the changes desired, concisely, but clearly.] [Date.] [Signatures.] 16, 17. Same, in case of vacating road. [Follow the foregoing form to the *, and add] ; vacation of a county road leading from to , for the reason that the same has become useless to the public [or give other reasons], [Date.] [Signatures.] 18-20. Form of proof that notices were set up. [Copy the notice, then add] : The State of Ohio, county : A. B., being sworn, says that he set up a notice, of which the above is a true copy, in the auditor's office in said county, and like notices in three public places in township, and three in township, on the day of , 18—. A. B. Sworn to and subscribed before me, this day of , A. y D. 18—. [Officer s signature.] 21-23. Form of proof of publication of notice. The State of Ohio, county : P. F., being sworn, says that he is the publisher [or, book-keeper, or otherwise, as the fact may be], of the , a newspaper printed and of *§ 4641. See last part of note to par. 106, below. 20 ROAD LAWS OF OHIO. [CHAP. 2, 24-28 general circulation in said county, and that a notice, of which the an- nexed is a true copy, was published in said paper on of each week for four consecutive weeks, beginning on the day of , 18 — . P. F. Sworn to and subscribed before me, this day of , a. d. 18 — . [Officer s signature.'] 24. Bond required. — One or more of the signers to any such peti- tion must enter into bond with sufficient surety, payable to the state, for the use of the county, conditioned that the persons making such application shall pay into the treasury of the county the amount of all costs and expenses accruing thereon in case the application shall fail. 1 25. As to costs. — In case the application shall not fail, the commis- sioners may, in their discretion, order the petitioners to pay any or all costs and expenses of such application, or may pay all or any portion thereof out of the county treasury. 1 26. Judgment for costs and suit on bond. — When the commissioners make such an order, and the petitioners fail, neglect, or refuse to pay the costs and expenses, the persons signing the bond will be liable thereon for the full amount of all the costs and expenses of the application ; and the auditor of the county must deliver the bond to the prosecuting attorney, who must collect and pay the same to the county treasurer ; and in all cases of contest the court having jurisdiction of the case will have full power to render judg- ment for costs according to justice between the parties. 2 27, 28. Entry of filing petition, and order for giving bond. In the matter of the petition of A. B., j and others, for a county road [or, altera- > Petition filed, and bond ordered. tion of a county road. See note 2, p. 417]. ) The petitioners having made application for the establishment [or t alteration] of a county road, along the following described route [de- scribe the route of road or alteration] : it is ordered that before further pro- ceedings be had upon said application, one or more of the petitioners enter into a bond in the sum of dollars, payable to the State of Ohio, for the use of county, with sureties to be approved by this board, conditioned for the payment of the costs and expenses of a view, according to law. 1 § 4638. 2 1 4639. CHAP. 2, 29-35.] COUNTY ROADS. 21 29-34. Form of bond. Know all men by these presents, that we, A. B., Q. R., and S. T., are firmly bound unto the State of Ohio, for the use of county, in the penal sum of dollars, and for the true and faithful payment of which, well and truly to be made, we jointly and severally bind our- selves, our heirs, executors, and administrators by these presents. Done at , this day of , a. d. 18 — . The conditions of the above obligation are such, that whereas ap- plication has been made to the board of commissioners of said ■ county, for the establishment \_or, widening, or, vacation, etc., as may be] of a county road on the following line, to-wit: Beginning at \_descrile the road to be established, altered, etc., as in the 'petition]. Now, if the said shall pay into the treasury of the said county the amount of all costs and expenses accruing on said application, in case the prayer of said petitioner shall not be granted, or when the proceedings had in pursuance thereof shall not be finally confirmed and established, then this- obligation shall be void, otherwise it shall be in full force in law. A. B., Q. R, S. T. 35. Appointment of viewers and surveyor, and their duties. — On the presentation of the petition, if the commissioners are satisfied that notice has been properly given, they must appoint a skillful sur- veyor to survey the road, and must also appoint three disinterested freeholders .of the county as viewers, who will also be a jury to assess and determine the compensation to be paid in money for the property sought to be appropriated, without deduction for benefit to any property of the owner, and to assess and determine how much less valuable, if any, the laud or premises from which such appropriation may be taken, will be rendered by the opening and construction of the road ; and must issue an order directing the viewers, with the surveyor, to proceed on a day to be named in the or- der, or on their failing to meet on that day, within five days there- after, to view, survey, and lay out or alter said road, and deter- mine "whether the public convenience requires that such road or any part thereof shall be sixty feet in width, or whether a less width than sixty feet will as well promote the public convenience, and report the width in their opinion the road should be established and opened. 1 1 §4642. For form of appointment, see pars. 36-38, and 45-52 below. The establishment of a county road, by county commissioners, upon the 22 ROAD LAWS OF OHIO. [chap. 2, 36-38 36-38. Appointment of viewers and surveyor. In the matter of the petition of | . A. B. and others, for a county road V Bond filed, and viewers, etc., appointed. [or, alteration of a county road]. 1 ) On motion of . A. B., one of the signers of said petition, having filed his bond in die sum of dollars, payable to the State of Ohio for the use of county, with Q. R. and S. T. sureties, conditioned for payment of the costs and expenses accruing upon said application, in case the prayer of the petitioners be not granted, or the proceedings had in pursuance thereof be not finally affirmed and established; which bond is accepted and approved; and it appearing that said petition is signed by at least twelve freeholders of county, residing in the vicinity of the proposed road [or, alteration], and that notice of the filing of said petition has been given according to law : It is ordered that A. M., B. N., and C. O., three disinterested free- holders of the county, be, and they hereby are, appointed viewers, and D. P. surveyor of said road [or, alteration] ; and that they meet at t on the day of , 18—, at — o'clock, a. m., and after being duly sworn, proceed to the discharge of the duties of their several ap- pointments according to law. It is further ordered that the county auditor issue, in the name of the board, the necessary order to the said viewers and surveyor, and that said viewers and surveyor report their proceedings in the premises to this board, at its next session. [For form of this order, see paragraphs 45-52.] report of two viewers, the third neither qualifying nor acting, is erroneous. Re Wells County Road, 7 O. S. 17 (prosecuted on a petition in error . If, on appeal, the court of common pleas establish such road, upon the report of the two viewers, without other proof of the public necessity to condemn the land for public use, their proceedings are also erroneous. lb. If the owner of land through which a road is proposed to be established apply to the county commissioners for damages, and viewers are appointed, who report, and the owner appeals to the court of common pleas, and view- ers are there appointed, and report, and the court affirm their report, and establish the road, it is then too late for the owner to object on certiorari in the district court that the record does not affirmatively show that the free- 1 Viders who petitioned for the road were of the "vicinity," or that notice of the application for the road was not given. He should have made these ob- jections before the county commissioners. lb. Land-owner is entitled to jury to assess damages. lb. Notes to par. 3, ch. 4. 1 For convenience, the words to left of the }- may be called the caption, which precedes all entries as to roads, etc.; and the words to right, in italics, the catch words, which vary with each entry. To save space, these will not be given in full every time hereafter. See also par. 1 and note 2, page 417. / CHAP. 2, 39-41.] COUNTY ROADS. 23 < 39. Duties of viewers and surveyor. — The viewers and surveyor must meet at the time and place specified in the order of the com- missioners, and after taking an oath faithfully and impartially to discharge the duties of their appointment respectively, must take to their assistance two suitable persons as chain carriers and one marker, and proceed to view, survey, and lay out or alter the road as prayed for in the petition, or as near the same as in their opin- ion a good road can be made at reasonable expense, taking into consideration the utility, convenience, inconvenience, and expense which will result to individuals, as well as to the public, if such road or any part thereof is established and opened, or altered. 1 40. Assessment of damages. — The viewers must also, as a jury, discharge the duties required of them in paragraph 35 above, and assess and determine the damages sustained by any person through whose premises the road is proposed to be established, altered, or vacated. 2 41. When compensation and damages not to be assessed. — But the viewers are not to be required to assess or award damages or compen- sation to any person, except minors, idiots, or lunatics, in consequence of the opening of the road, unless the owner or his agent, having notice, as provided in paragraphs 59, 60, and 70 of this chapter, of the application and proceedings by which his property is sought to be appropriated or may be injured, shall have filed a written appli- cation with the viewers, giving a description of the premises on which damages or compensation is claimed. 3 1 \ 4646. See notes to par. 41 below. As to oath, see pars. 76, 77 below. As to viewers, see note on page 30. 2 g 4646. See note 2, page 7. 3 § 4647. See also pars. 72-77, chapter 27, and notes thereto. Where such owner, properly notified, appeared before the viewers and claimed his compensation and damages, but neglected to file a written appli- cation therefor, the viewers properly declined to assess such compensation and damages. Anderson v. Mclvinley, 24 O. S. 467. Where the viewers reported to the commissioners their declination as above, giving reason why, and the owner appealed to the probate court from the commissioners' approval of such report, the court did not err in dis- missing the appeal, on motion of the defendants. lb. Relief in equity, by restraining the appropriation of private property for a public road, will not be granted on the ground that compensation there- for has not been paid to the owner in money, where the owner, having 24 , ROAD LAWS OF OHIO. [CHAP. 2, 42. » 42. How damages barred. — All applications for damages will be barred unless they be presented as provided for by this chapter. 1 actual notice of the time and place of view, neglected or failed to present his application in writing for compensation, and where it does not appear that the owner could not have provided against the default so to prevent it. Keckner v. Warner, 22 0. S. 275. The proviso in section 6 of the act of January 27, 1853 (S. & C. 1291 — now § 4647) — declares a rule of evidence whereby a waiver on the part of the land-owner, of his right to compensation, may be established, and does not conflict with the constitution (sec. 19, art. 1) relating to the inviolability of private property. The rule contained in this proviso can not be regarded either as a statute of limitations, whereby a right secured by the constitu- tion is barred immediately on the accruing thereof, or as a statute declaring the forfeiture of private property. lb. The constitutional inviolability of private property is not impaired by a statute declaring a rule of evidence as to a waiver of claim. When a stat- ute would, if construed as a bar by limitation, be improper, and beyond the power of the legislature, as being an attempt to bar a right secured by con- stitutional provision immediately upon its accruing, it must be considered as a statutory rule of evidence, so as to give it effect, and at the same time preserve the constitution from invasion. lb. 294. Semble, that the failure to present a claim to the viewers will not, in every case and under all circumstances, preclude the owner of lands condemned to the public use, from enjoining the appropriation ; but any default which is not excused by unavoidable casualty, or by circumstances against which reasonable precaution could not have provided, will defeat such relief. When the claimant, having notice, leaves home the day preceding the time for de- mand, without appointing an agent to present his claim, or taking steps to secure his compensation, and does not return in time, though the train was detained by an accident on the railroad, there is no ground for equitable in- terference shown. lb. 295, 296. See also note on page 206. Under the constitution of 1802, which allowed private property to be ap- propriated without prepayment of compensation, and the statutes limiting the time in which the owner should apply for compensation for property taken for public uses; by omitting to apply for compensation the right is waived, and the title as complete as if compensation had in fact been made. Malone v. Toledo, 34 O. S. 541, 550. See also notes to par. 106, this chapter, and pars. 1, 3, 15, of chapter 4. 1 § 4647. See preceding notes, and note 2, page 7. b CHAP. 2, 43-52.] COUNTY ROADS. 25 43, 44. Form of application by a land-owner for the assessment of com- pensation and damages. To the viewers of the road petitioned for by A. B. and others : The undersigned respectfully represents that he is the owner of the following described real estate situate in the county of and State of Ohio, to-wit [here describe property] : over which it is proposed to locate said road. He claims compensation for so much of his land as may be appropriated to said road, and also damages for the injury which the premises from which such appropriation is made will sus- tain by the location of said road. [Date.] L. O. 45-52. Form of order l to be issued to viewers and surveyor. Auditor's office, county, Ohio, , 18 — . To A. M., B. N., and C. 0., viewers, and D. P., surveyor : You have been appointed by the commissioners of said county to view and survey a proposed [new, or, alteration in the, or, vacation of the, etc.] county [or, state] road along the following described route. [Here fully describe the line of the proposed new road, or alteration, etc.] You are directed to meet at , on the day of , 18 — , at — o'clock a. m., or within five days thereafter in case of failure to meet on the day above named, and after taking an oath or affirma- tion, faithfully and impartially, to discharge the duties of your respect- ive appointments, to take to your assistance two suitable persons as chain carriers and one as marker, and proceed to view, survey, and lay out said road [or, alteration, etc.] on said line, or as near thereon as in your opinion a good road can be made at reasonable expense, tak- ing into account the utility, convenience, inconvenience and expense which will result to individual as well as to the public if said road is established [or, altered, etc.]. You shall also determine and report of what width, not more than sixty feet nor less than thirty feet, in your opinion, public convenience requires that said new [or, altered] road should be. And you are further required to make and sign a report in writ- ing, stating your opinion in favor of or against the establishment [or, al- teration] of the road, or any part thereof, and set forth the reasons of the same, which report, together with the plat and survey of the road 1 This order may specify quite fully all the duties of the viewer, as in this form, avoiding the necessity of special instructions and removing in part the liability to error. But it may be more general in its terms, as in para- graphs 20-23 of chapter 1, or paragraphs 25-30 of chapter 8. 26 ROAD LAWS OF OHIO. [CHAP. 2, 53. [or, alteration], shall be delivered to the county auditor by one of the viewers, on or before the first Monday in the month of next. And you, the said viewers, are hereby further directed to assess and determine the compensation to be paid in money for the property sought to be appropriated, without deduction for benefits to any prop- erty of the owner, and you shall also assess and determine how much less valuable, if any, the land or premises, from which such appropria- tion may be taken, will be rendered by the opening and construction of said road ; but you are not required to assess or award damages or compensation to any person or persons, except minors, idiots or luna- tics, in consequence of the opening of said road, unless the owners or their agents, having at least six days' notice, in writing, in case of resi- dents, and four weeks' publication in a newspaper, in the case of non- residents, shall have filed a written application with you, giving a de- scription of the premises on which damages or compensation, or both, are claimed by them. You are hereby further directed to make and return at the same time as the report of view and survey as aforesaid, a separate report, in writing, stating the amount of compensation and damages, if any, and to whom, which have been assessed by you, which would accrue by the opening of said road, and you shall file therewith the written ap- plications on which such assessments have been made. And you, the said surveyor, are further directed to survey the said road, under the direction of the aforesaid viewers, and cause the same to be conspicuously marked throughout, noting the courses and dis- tances, and at the end of each mile, to cause the number of the same, and also the commencement and termination of said road or survey, to be marked on a tree or monument erected for that purpose ; and you are directed to make out and deliver to one of the said viewers, without delay, a correct certified return of the survey of said road, and a plat of the same. By order of the county commissioners. W. C, Auditor of count;/. 53. New order to be issued, when. — If the viewers fail to proceed on the day named in the order, or within five days thereafter, so that their duties shall not be performed and reported to the commis- sioners at their regular or special session next after such order was made, the commissioners may, at such next regular or special ses- sion, issue a new order and appoint new viewers, who must be re- quired by such order to perform the same duties as required of the 97 CHAP. 2, 54-59]. COUNTY ROADS. " original viewers under the original order; or the commissioners may make such other order in the premises as may seem proper to them. 54 If viewer fail to attend, how anotlier appointed.— If a person appointed as viewer (or reviewer) on any road by the commissioners (or probate judge) of the county, fail to attend at the place specified in the order at or before two o'clock p. m. of the day in the order specified, the surveyor and two viewers must fill the vacancy by ap- pointing a judicious disinterested freeholder of the county. In case of a review, when five viewers are required, the surveyor and not less than three of the viewers may appoint a judicious freeholder of the county to fill the vacancy, who will be required to take the same oath, and be vested with the same power to do and perform the same duties as if he had been appointed by the commissioners or probate judge of the county. 2 55. Notice of appointment to viewers and snrveijors.—The principal petitioner must give six days' notice of their appointment to each of the viewers and to the surveyor so appointed, and of the time and place of meeting. 3 56-58. Form of notice to viewers or surveyor. To A. M. [or, B. X., etc]: You are hereby notified, that under the order of the commissioners of county, Ohio, dated , 18—, you were appointed a viewer [or, surveyor, or, reviewer], of a new county [or, state, or, alteration of a county, or, state], road petitioned for by the undersigned and others, and that you are directed to meet at on the day of , a. d. , 1 8—, at — o'clock, — . m., to enter upon the duties of said appointment. Dated, this day of , a. d., 18—. A. B., Principal Petitioner. 59. Notice to resident land-owners.— The principal petitioner must give at least six days' notice, in writing, to the owner or his agent, if residing within the county, or if such owner be a minor, idiot, or insane person, to the guardian of such person, if a resident of the county, through whose land the road is proposed to be laid out and established, or through whose land the road which it is pro- posed to alter or vacate may have been previously established, of i § 4643, as amended 80 O. L. 192. 2 § 4644. See note to paragraph 35, as to two viewers acting. s § 4645. 28 ROAD LAWS OF OHIO. [CHAP. 2, 60-71 the time and place of meeting, as specified in the order, and of the day by which claims for compensation must be filed. 1 60. What the notice mud state. — The notices mentioned in paragraph 59 must state the time and place of the meeting of the viewers and surveyor, as specified in the order of the commissioners, and also the substance of the petition. 1 61-63. Form of notice to resident land-owners or tJieir agents. To : You are hereby notified that the viewers and surveyor appointed by the commissioners of county, Ohio, in their order dated , 18 — , to lay out and survey the new county [or, state] road [or, the alteration of, and designate the road'], petitioned for by me and others, will meet at on the day of , 18—, to enter upon the discharge of their duties. Dated this day of , 18 — . A. B., Principal Petitioner. 64. Proof of such service should be made substantially as follows : 65-69. Form of proof. — Give a copy of the notice, then add : The State of Ohio, county : A. B., being sworn, says that he served a notice, in writing, of which the foregoing is a true copy, upon G. G., D. S., and A. R., on the d a y f ( 18 — [at least six days before the time for holding the view]. [Signed.] A. B. Sworn to and subscribed before me, this day of , a. d., 18—. J. C, Justice of the Peace [or other officer.] 70. Notice to non-resident land-owners. — If the road is proposed to be laid out, altered, or vacated on any lauds owned by a non- resident of the county, the principal petitioner must cause a notice to such non-resident to be published for four consecutive weeks in some newspaper published in such county ; but if no newspaper is pub- lished therein, then in some newspaper in an adjoining county to that in which the lands sought to be affected by the road are situate. 1 71. Such notice must state the time and place of the meeting of the viewers and surveyor, and also the substance of the petition. 1 1 1 4645. CHAP. 2, 72-78.] COUNTY ROADS. ** 72,73. Form of such notice. Notice is hereby given to {mention their names and residences, iflnown], that at the session, IS—, of the commissioners of county, Ohio A B and others filed their petition for a county road [or, the alteration of a county road], as follows [describe the road or alteration at length'] ■ That viewers and a surveyor of said road were appointed by sxid commissioners; and that said viewers and surveyor will meet at J on the day of , 18—, at 10 o'clock, a. m., to enter upon the discharge of their duties. A. B., Principal Petitioner. [Date.'] 74. The proof of notice to non-residents may be the same as that given in paragraphs 21-23. 75 Filing certified copy of notices.— The certified copies of the notices mentioned in paragraphs 65 and 74 should be handed to the viewers, to file with their report, or should be left with the county auditor, to be so filed by him. _ 76. Who may administer oaths.— When an oath is required to be taken by any person under the provisions of this chapter, it maybe administered by the surveyor, or by one of the viewers or reviewers, who has been previously sworn. 1 It may also be administered by any officer, authorized by law to administer oaths generally. 3 77. Form of oath of viewers, surveyor, etc. You do solemnly swear [or, you do solemnly, sincerely, and truly declare and affirm], that you will faithfully and impartially discharge all the duties enjoined on you by law, as viewers [or, as reviewers, or, as surveyor, or, as chain carriers, or, as marker], of a county road peti- tioned for by A. B. and others, according to the best of your under- standing and ability. So help you God. [Or, this you do under the pains and penalties of perjury]. 78. Form of certificate of oath to viewers, etc. 3 The State of Ohio, county : Before me the undersigned authority within and for said county, personally came A. 11, B. N., and C. O., viewers; D. P., surveyor; F. R and G. S., chain carriers, and II. T., marker, of a county road, pe- titioned for by A. B. and others, and being duly sworn, each for him- 1 g 4648. * §2 5264, 5269. s This certificate should be given to the viewers, to be attached to their report, and returned to the county commissioners therewith. 30 ROAD LAWS OF OHIO. [CHAP. 2, 79-88. self, says that he will faithfully and impartially discharge the duties of his respective appointment. [Signed by A. M., B. N., C. O., F. B., G. S., and H. T.~\ Sworn to and subscribed before me, this day of , a. d. 18 — . H. M., Notary Public [or other officer, see -par. 76]. 79. Duties of surveyor, etc. — The surveyor must survey the road, under the direction of the viewers, and cause it to be conspicuously marked throughout, noting the courses and distances, and at the end of each mile must cause the number of that mile, and also the commencement and termination of the road or survey, to be marked on a tree, or monument erected for that purpose, and shall make and deliver to one of the viewers, without delay, a correct certified return of the survey of the road, and plat of the same. 1 80. Viewers' report. — The viewers must make and sign a report in writing, stating their opinion in favor of or against the establish. ment or alteration of the road, or of any part of it, setting forth their reasons. This report, with the plat and survey of the road, or al- teration, must be delivered to the county auditor by one of the viewers, on or before the first day of the next session of the county commissioners. 2 81-88. Form of viewers' report, if favorable to the road. 3 To the board of commissioners of county, Ohio : We, the undersigned viewers of the road petitioned for by A. B. and others, with D. P., surveyor, met at , on the day of , 18—, in pursuance of your order to us, dated , 18—, and were duly sworn, as will further appear from the certificate of said oath, hereto attached. [If a viewer fails to attend, see next form.'] We then took to our assistance F. R. and G. S. as chain carriers, and H. T. as marker, and with said surveyor proceeded to view, survey, and lay out the road [or, alteration] described in said order, of the width 1 1 4649. Where the appointee is county surveyor, he acts by virtue of his appointment, and not of his office, and his deupty can not act in his stead. 2 § 4649. Road viewers appointed by the court of common pleas may ad- journ from time to time, so that they are prepared to report at the return day ; and though they may at one time have resolved to report against the road, it is not error for them afterward to change their determination and report in favor of the road. Butman v. Fowler, 17 O. 101.— [This probably is true of all viewers. — Ed.] 8 See note to par. 45 of chapter 3. CHAP. 2, 89-91.] COUNTY ROADS. 31 and along the route specified in the surveyor's report of said survey, with its plat and field notes, which report, plat, and field notes are hereto attached and made a part of this report;* said route being on the route prayed for in said petition [or, as near the route prayed for in said petition] as in our opinion a good road can be made at rea- sonable expense, taking into consideration the utility, convenience, inconvenience, and expense which will result to individuals as well as tothe public, if said road [or, alteration], or any part of it, should be established. We are of the opinion that said road will be of general utility, and ought to be established [give reasons, for instance], because it will pass through a now well settled region needing a road to the new railroad station of , said road's northern terminus, and along a line where a road can be made at a moderate cost of money and laboi [or say, be- cause public convenience greatly needs such a road along the route surveyed, and its cost will not be great]. We are further of the opinion that the public convenience requires that said road be feet wide, and therefore directed the surveyor to survey it of that width, which he did accordingly. Eespectfully submitted, this day of , a. n. 18 . A. M., B. N., C. O., Viewers. Time employed : Viewers, — days each, at $ — per day ; surveyor, — days, at $— per day ; chain carriers, — days each, at $ — per day • marker, — days, at $ — per day. 89. Form of same, if viewer fails to attend. We, A. M. and C. 0., viewers, appointed in your order dated , 18 — , relating to a county road petitioned for by A. B. and others, with D. P., surveyor, likewise appointed, met in pursuance of said order, at , on the day of , 18—. B. N., also appointed in said or- der, having failed to attend at said place at or before 2 o'clock p. m. of the day last mentioned, E. Q., a judicious, disinterested freeholder of the county, was appointed as viewer in place of B. N. We were then duly sworn [and proceed as in the form last above given]. 90. Form of same, if adverse to the road. [Follow the proper one of the two preceding forms to the * then say: We are of the opinion that said road ought not to be established [or, said al- teration ought not to be made], because [give reasons why, as for instance] a good road can not be made on or near the line proposed by the peti- tioners, at a reasonable expense, and the little importance of such road to the public would not justify the expense and labor of opening it, and keeping it in repair. 32 ROAD LAWS OF OHIO. [chap. 2, 92-97. 91. Viewers must file separate report of damages. — The viewers must , at the time they make their report of the view, also make a separate report, in writing, stating the amount of damages, if any, and to whom, by them assessed, which would accrue by the opening of the road ; and they must also file the written applications on which such assessments have been made, with the county auditor. 1 92-96. Form of viewers' separate report as to compensation and dam- ages, if any awarded. To the board of commissioners of county, Ohio: We, the undersigned, appointed in your order of , 18 — , re- lating to a county road petitioned for by A. B., and others, as viewers to lay out said road and to assess the compensation and damages result- ing by reason of establishing \_or, altering] said road, report* as to said damages, that T. B., S. H., N. H., and L. Y., through whose premises said road as laid out will pass, have filed their written applications, hereto attached, for such compensation. Having carefully examined the route of said road over said premises, we award compensation to the claimants mentioned below for the property sought to be appro- priated, as follows: To T. B., dollars. To S. H., dollars. To N. H., dollars. To B. B., a minor [_or, lunatic, etc.~\, through whose premises also said road passes, ■ dollars. The above awards are made without deduction for benefit to any property of said owners which would accrue by the opening of said road. We also assess the following damages to be paid to the below-men- tioned claimants, whose premises will be injured or rendered less valu- able by the location of said road through said premises, to-wit : To T. B., dollars; to S. H., dollars. \If so, say, L. O. and M. P. have relinquished compensation of dam- ages by a writing, filed herewith]. In our opinion, no other claimant's property is injured or made less valuable by reason of said road. 2 Given under our hands this day of , a. d., 18 — . A. M., B. N., C. 0., Viewers. 97. Form of same, if no damages are claimed. [Follow preceding form to the *, then add] that no such compensation J g 4651, as amended 82 O. L. 72. See pars. 72-77, chap. 27. 2 See note to par. 41, above. CHAP. 2, 98-105.] COUNTY ROADS. 33 nor damages have been claimed by any person, and that said road is not so laid out as to pass through the premises of any minor, idiot, or lunatic Given under our hands [and close as in preceding form]. 98-101. Form of surveyor's report. To the board of commissioners of county: In obedience to your order dated , 18 — , and directed to A. M., B. N., and C. 0., viewers, and myself as surveyor, I, being first duly sworn, proceeded in company with and under the direction of said viewers, and with and , as chainmen, and , as marker, who were also first duly sworn, and surveyed and marked the road as directed by said viewers, as follows, to-wit: Beginning [describe fully and clearly'] as will more fully appear by ref- erence to the plat and field notes hereto attached, and hereby made a part of this report; and I hereby certify that said plat is a correct rep- resentation of said road from actual survey made on the ground. [Date , 18—.] Respectfully submitted, D. P., Surveyor. 102. Public reading of viewers' report. — On receiving the report of the viewers, the county commissioners must cause it to be read on two different days of the same session. 1 103. Form of minute of first reading. [Give caption ; see par. 36, and note thereto.] The viewers having reported in favor of the establishment of said road, said report was this day read for the first time. 104. Same, for second reading. The report of the viewers as to establishing said road was this day read the second time. 105. Separate report must also be read. — The commissioners must also cause the separate report as to damages to be publicly read on the third day of the session at which it is received. 2 1 1 4650. Proceedings can not be reviewed on error until final order is made Anderson v. McKinney, 24 O. S. 467. As to who are necessary parties in review in error, Comm'rs Wood Co. v. Junkins, 19 O. S. 348; see also Stemble v. Hewling, 2 O. S. 228. 2 g 4651, as amended, 82 O. L. 72. As to minutes of such reading, see the following orders as to opening the road 3 34 ROAD LAWS OF OHIO. [CHAP. 2, 106, 110. 106. Road must be established if: If no application be made to the county commissioners for a review of the road [or, alteration], or of any part of it, as provided in paragraph 128 et seq., and if they are satisfied that such road, or any part of it, if it is capable of division, will be of public utility, aud the report of the viewers is favorable thereto, and no damages have been claimed or assessed, they must, on the third day of the session, cause the report, survey, aud plat to be recorded, and from that time the road must be considered a public highway. 1 107. Order to township trustees to open road. — The commissioners must then issue their order to the trustees of the proper township or townships to open the road. 2 But see par. 255. 108-110. Form of order establishing road, when no damages claimed. [Give caption, see par. 36, and notes thereto.^ The report of the viewers in relation to the establishment of said !§4650. Under the statute (March 14, 1831, Swan, 796, ed. 1849), for opening roads and highways, a road record is not incompetent evidence in a collateral proceeding, because all the steps prescribed do not appear in the record itself. McClelland v. Miller, 28 O. S. 488. Although by sections 2 and 16 a bond is required to be given, the record is not incompetent evidence in a collateral proceeding, because it does not show such bond given. The statute prescribing what shall constitute the record of the road does not require that all preliminary steps shall appear therein, and when the report, survey, and plat have been recorded as directed by statute, it will be presumed that all was done which the law required should be done, where the road has long been opened and used with the ac- quiescence of land-holders adjoining. lb. In case of such record, use, and acquiescence, the proceedings are not in- validated, because it does not appear from the record itself that the viewers were freeholders of the county. Nor is it invalidated because one of the viewers acted as surveyor, nor because the record does not contain any order to the viewers and surveyors, nor because it fails to show that they were sworn. Nor is it invalidated because the commissioners ordered the report recorded at the same session it was made, nor because the record fails to show an order directing the road to be opened. If these things were omitted to be done, though they might be taken advantage of in a direct proceeding to reverse the action of the commissioners, yet in a collateral proceeding such omissions can not render the record null and void. lb. In Beebe v. Scheidt, 13 O. S. 415, with regard to the giving of notice prescribed by the statute, it is said: "While, therefore, the notice required 2 I 4650. CHAP. 2, 111.] COUNTY ROADS. 35 road having been this clay publicly read for the third time, and being in favor of said road, and no objections being made, nor damages claimed, nor assessed, nor petition for review 1 filed, and the board being of opinion that * said road, as laid out and surveyed, will be of public utility, it is ordered that the reports of said viewers, with the survey and plat of said road, bo recorded, and that said road be es- tablished a public highway, feet in width. It is further ordered, that the county auditor issue an order, in the name of the board, directing the trustees of and townships to cause said road to be opened, according to law. Should a portion only of a road be established, follow the form to the *, and say : The whole of said road, as laid out and surveyed, will not be of public utility, but that so much of the same, as lies between the fol- lowing points, to-wit \_describe that portion of the road which it is designed to establish'] : will be useful to the public, and that said road is capable of division, it is ordered that the aforesaid useful part of said road be established a public highway, and that the report of the viewers, and the plat and survey of said road be recorded, according to law [and add clause for order to trustees to open the part established^. 111. Order, ivhen damages are to be paid by county. — If no petition for review or alteration has been presented and received, and the in section 5 should certainly have appeared in the record, to make the same perfect and conformable to the statute, it does not appear to be such an omission as renders the proceeding while unreversed and in full force of no effect, and to authorize the court to treat the record as a nuliity in a collat- eral proceeding." McClelland v. Miller, 28 0. S. 488, 499. It will therefore be seen that whatever might be the effect of objections taken, in the direct proceeding, establishing the road, these objections are al- together of different moment, when made in a collateral proceeding, in a case of a road, established and used for a great length of time, and when they are made by one long cognizant of that use, who seeks to obstruct the highway, without other justification than that the original record is defective. lb. 499. As to all these objections, we only desire to say, had they been taken in the proceeding itself which established the road, as was in the case in Fer- ris v. Bramble, 5 O. S. 109, and in the matter of "Wells County Road, 7 O. S. 1G, cited by counsel, they might and probably would have been con- sidered by the court. But what may suffice to reverse on error will not necessarily invalidate the same record when attacked in a collateral proceed- ing. . . If the court had jurisdiction, however erroneously it may have proceeded, there is no remedy when the case is finally closed. lb. 501, 503. See also notes to par. 64, chapter 8 ; pars. 81-83, chap. 27, and notes thereto. 1 As to petition for review, see par. 127 et seq. 36 ROAD LAWS OF OHIO. [CHAP. 2, 112-116. county commissioners are satisfied that the amount of damages and compensation assessed aud determined by the viewers in their separate report, is just and equitable, and that the road will be of sufficient importance to the public to cause the damages which have been assessed to be paid by the county, they must order the same to be paid to the applicants from the county treasury. 1 112. Same, when petitioners must pay damages. — If, however, the county commissioners do not consider the road to be of sufficient im- portance to the public to cause the assessed damages to be paid by the county, they may refuse to establish the road a public highway, unless the damages which have been assessed are paid by the petitioners. 1 113. Same, ivhen county pays part and petitioners pay part. — The county commissioners may, in their discretion, order a portion of such damages to be paid out of the county treasury, and require the petitioners to pay the remainder thereof before such roads are opened. 1 114-116. Form of order establishing road, when county pays damages. [Give caption; see par. 36, and notes thereto. ~\ The report of the viewers in favor of the establishment of said road was this day publicly read, for the third time, and said viewers having filed a separate report, in writing, of the amount of compensation and damages which they have assessed to land-owners, by reason of the lo- cation of said road through their several premises, which report was also publicly read ; and the board being of opinion that the compen- sation and damages awarded by said viewers to the several claimants, to-wit: To S. H., dollars compensation, and dollars damages; To T. B. {etc, as the case may be) are reasonable and just *; that said road will be of public utility and of sufficient importance to the public to justify the payment of said compensation and damages out of the county treasury ; and no petition for review being filed, it is ordered that the county auditor draw his order upon the county treasurer, in favor of said claimants, for the amount of compensation and damages so awarded to them, respectively; that the several reports of the viewers, with the survey and plat of said road, be recorded, and that said road be established a public high- way. It is further ordered, that the county auditor issue, in the name 1 g 4651, as amended, 82 O. L. 72. §851 applies to such expenditures. Opinion of Lawrence, Atty.-Gen. CHAP. 2, 117-123.] COUNTY ROADS. 37 of the board, an order to the trustees of and townships, di- recting them to cause said road to be opened according to law. T. B. gives notice of appeal from the location of the road, and the assess- ment of compensation and damages. 117. Form of same, when petitioners must pay the damages. [Follow the preceding form tc the * then add], but that said road is not of sufficient importance to the public to warrant the payment of said compensation and damages out of the county treasury, it is ordered that the petitioners pay, or tender to pay, the several claimants, forth- with, the amounts so as aforesaid assessed to them, and that no further proceedings be had in the premises, until such payment or tender shall have been made. (A form for paragraph 113 can be easily adapted from this and the foregoing. ) 118, 119. Form of order, after petitioners have paid daviages. [Give caption.] It appearing that the petitioners have paid S. II. and T. B., two of the claimants, the amounts awarded to them, respectively, by the viewers, and have tendered to N. H. (and upon his refusing to accept, have deposited in the county treasury, subject to his demand), the amount of compensation and damages awarded to him by said view- ers; and the board being of opinion that said road will be of public utility, and no petition for review 1 being filed, it is ordered that the several reports of the viewers, with the survey and plat of said road, be recorded, and that said road be established a public highway, ■ feet in width. It is further ordered, that the county auditor issue, in the name of the board, an order to the trustees of and town- ships, directing them to cause said road to be opened, according to law. 120-123. Order to township trustees to open road or alteration. Commissioners' office, county, Ohio, IS — . To the trustees of township, in said county : Whereas, by the final order of the board of commissioners of said county, at their session, 18 — , upon the petition of A. B., and other resident freeholders of said county, a county road feet in width, was established, and recorded, along the following de- scribed route, to-wit [describe the road as surveyed and located] : You will therefore direct the supervisors of the several road dis- tricts in your township, through which said road has been established, 1 See par. 127 et seq. 38 ROAD LAWS OF OHIO. [CHAP. 2, 124-130 as aforesaid, to open the same, thirty feet wide, through their said dis- tricts, without delay, and keep it in repair, according to law. By order of the county commissioners, By J. K., County Auditor. 124. Wlien road not to be opened — Bondsmen liable. — If the report of the viewers be against such proposed road, or alteration, or if, in the opinion of the commissioners, such road or alteration is unneces- sary, no further proceedings must be had thereon, and in that case the signers of the bond securing the expenses will be liable for the full amount of the costs and expenses mentioned in the bond. 1 125, 126. Form of order refusing to establish road. [Give caption.^ The board being of opinion, after due consideration, that said road is unnecessary, and not required by the public convenience [or, if the viewers report be adverse : The viewers having filed their report, whereby it appears that they are of opinion that said road ought not to be estab- lished a public highway] : It is ordered that said petition be dismissed, without further proceed- ings, and that the petitioners pay the costs and expenses that have been caused by their aforesaid application. 127. Proceedings stop, if review applied for. If application for re- view or alterations have been made, as described below, no further proceedings can be had on the report of the viewers till the final determination of the commissioners on such application. 2 128. Application for review of road. — After the viewers have made return in favor of the road, and before the return is recorded and the road established, any citizen of the county may apply to the commissioners for a review of the road, by petition, agreeably to section 4638 of the Revised Statutes of Ohio. 3 129, 130. Form of petition for review of road. To I he board of commissioners of county, Ohio: Your petitioners, being of the opinion that the county road peti- tioned for by A. B. and others, and favorably reported by the viewers » 1 4650. 2 1 4651, as amended, 82 (). L. 72. 3 g 4652. See § 4638, in pars. 2, 24, 25, above, by which (and by opinion of Lawrence, Atty.-Gen., 1885) it appears that twelve freeholders of the county, residing near the road to he reviewed, must Bign the petition, and that a bond must be given. This seems more reasonable than that anyone citizen, in no way interested and not a freeholder, living remote from the road, could compel steps toward such review. QO CHAP. 2, 131-136] COUNTY ROADS. thereon, is wholly unnecessary [or, other reason for filing ^petition], ask that a review of said road may be granted according to l^ [Date.] L * 131 Appointment of reviewers.-The commissioners must, on such petition being presented, and being satisfied the same isjust and tunable, appoint five disinterested freeholders of the county to review the road, and issue their order to the reviewers, directing them to meet at a time to be specified in the order, or within five days thereafter. 1 , 132 Bond for revietv of road, and its form.-X bond must be en- tered into in case of such application for review, as in case of an application for a new road.' For a suitable form of bond see para- graphs 29-34. ^ ^ Fo ^ n oforderfor bmdm r Give caption. See par. 36, and note thereto.'] ,,,.,. . The report of th/viewer. of said road in favor of if estab hshment having been publicly read to-day for the third time [say also, i/so-and the : epo^of said viewers in relation to the assessment , of ^compensation and damages having also been publicly read]; and N. H., and others citfzens of— county, Ohio, having filed their petition for a review of sa d rold it is therefore ordered that one or more of said applicants a review enter into a bond to the State of Ohio for the use of said county in the sum of — dollars, conditioned for the payment of the costs of such review in case said road be finally established, with sure- ties to be approved by this board. 135, 136. Form of order approving hond, appointing reviewers, etc. T* having filed his bond with H. G. and L. S„ sureties, executed in accordance with the former order of the board, said bond is accepted and apptved. And it appearing to the board, that the petitioners for a review are freeholders of — county, residing in the vicinity ^w here said road is to be reviewed, and that the prayer of said peti tioner is just and reasonable, further Proceedings under the original petition are suspended, and it is ordered that L D., P K B. b 1. »., and M N five disinterested freeholders of said county be, and they hereby are, appointed a committee to review said road, and report Lreon to'th\s board at ^~»^T^1 said reviewers meet at , on the aay oi ' "7^652. a See g§ 4652, 4653, 4638, and par. 2, et seq., above 40 ROAD LAWS OF OHIO. [CHAP. 2, 137-145 forenoon, and that the county auditor issue, in the name of the board, an order to said reviewers, according to law. 137-141. Form of order to the reviewers. Auditor's office, county, Ohio, , 18 — . To L. D., P. K, S. S., J. B., and M. N. : You have been appointed by the commissioners of said county to re- view the county road petitioned for by A. B. and others, and surveyed and laid out by A. M., B. N., and 0. P., viewers, and D. P., surveyor, along the following described route [describe the line of the road]. You are directed to meet at , on the day of , 18 — , at o'clock, a. m., or within five days thereafter; and after taking an oath, faithfully and impartially to discharge the duties of your appoint- ment, to proceed to examine the route of said road as above described, and to make a report in writing to said commissioners, stating therein your opinion in favor of or against the establishment of said road, or of any part thereof, and your reasons for such opinion. By order of the county commissioners. , County Auditor. 142. Duties of reviewers. — The reviewers must meet, and after taking the oath required iu paragraph 39, must proceed to examine the route surveyed for the road by the former viewers, and make a report in writing to the commissioners, stating their opinion in favor of or against the establishment of the road, or any part thereof, and their reasons for the same. 1 143. Notice of meeting of reviewers. — The petitioners for review must cause at least six days' notice to be given to the principal petitioner for the road, of the time and place of meeting of the re- viewers. 1 If this notice is signed by one of the petitioners for re- view, it will be sufficiently signed, though it may well be signed by more, or by all of them. 144, 145. Form of such notice. ToN. H : You are hereby notified that the reviewers of the county road peti- 1 1 4652. It is no part of the duties of a committee of reviewers to award compen- sation and damages to land-holders, nor to direct a survey of the road, the sole object of their appointment being to obtain an expression of opinion as to the practicability and necessity of the road, as laid out by the original viewers. CHAP. 2, 146-154.] COUNTY EOADS. 41 tioned for by you and others, will meet at , on the day of , 18 — , at — o'clock, a. m., to enter upon the discharge of their duties. [Date.] A. B. [and others], Petitioners for Review. 146. Proof of service of notice, etc. — Proof of the service of this notice should be made as directed in paragraphs 65-69, and a copy of the notice so verified, should be given to the reviewers, to be by them returned with their report. 147. For form of notice to reviewers of time and place of meeting, see paragraphs 56-58, but sign " N. H. and others, petitioners for review." 148. For form of oath and certificate thereof of reviewers, use forms in paragraphs 77, 78, above. 149-153. Form of report of reviewers. To the board of commissioners of county, Ohio : The undersigned, reviewers of a county road petitioned for by N. H. and others, respectfully report, that in pursuance of the order issued to them, they met at , on the day of , 18 — , at — o'clock, a. m., as said order directs, and after being first duly sworn, proceeded to discharge the duties of their appointment. That after having examined the route of the road, as laid out and surveyed by the former viewers, they are of opinion that said road ought to be [or, ought not to be] established, because [give reason, for instance'], the public convenience requires the same, and a good road can be made, at a reasonable expense, and without causing serious in- jury to the individual land-owners along the route assigned to the same by said viewers, [or, if adverse, see paragraph 90, above.'] Given under our hands, this day of , a. d., 18 — . Time employed: reviewers, each one day. > (Signed by the reviewers.) 154. Proceedings on report of revieivers. — If the report of the re- viewers be in favor of the road, it must be established, recorded, and opened, agreeably to the provisions of this chapter, and the poisons bound for the costs of the review must pay into the county treasury the amount thereof; but if the report be against the estab- lishment of such road, no further proceedings can be had about the road before the commissioners, and the persons executing the first 42 ROAD LAWS OF OHIO. [chap. 2, 156-159 bond must pay into the county treasury the costs and expenses of the view, survey, and review. 1 155. Resuming ■proceedings interrupted by petition for review. — When the reason for discontinuing the proceedings provided for before paragraph 127, above, 2 is the filing of a petition for review, and the reviewers accordingly appointed also report in favor of the road, or otherwise in agreement with the report of the viewers, these pro- ceedings should be resumed where left off, and the orders as to es- tablishing and opening the road should be made and recorded, with such modifications only as the proceedings on the petition for review have made necessary. These modifications are so readily made that it is not necessary to repeat those orders here. The following form will give an idea of these charges : 156-158. From of order establishing road after review. [Give caption; see par. 36, and note thereto.] The report of the viewers being in favor of said road, and having been publicly read on three different days, as required by law, and the report of the reviewers being also in favor of said road, and no damages being claimed nor assessed, and the board being of the opinion that \_and continue as on pages 34-37 as the facts may require.'] [Should the road be established, vpon review, an order for costs may be made as follows :] And it is further ordered that the said N. H. [or other of the petitioners for the review who gave bond] pay into the county treasury the costs of said review, and upon failure to do so, that his bond be pro- ceeded against. [Should the report of the reviewers be adverse to the road, the order may be :] And it is further ordered that the said A. B. [or other of the original petitioners whose names appear in the bond first filed] pay into the county treasury the costs of the view, survey, and review of said road, and upon failure so to do, that his bond be proceeded against. 159. To find the line of a road. — "When the place of beginning, or true course of a county road is uncertain, by reason of the removal of any monument or marked tree by which such road was originally designated, or from any other cause, the county commissioners may appoint three disinterested land-holders of the county to review and find the line of the road, and if they deem it necessary, a competent surveyor to survey the same : The reviewers and surveyor, after 1 24653. 2 See par. 111. CHAP. 2, 160, 161.] COUNTY ROADS. 43 taking the oath required in paragraph 39, must view and survey said road, and correctly mark it throughout, as in case of new roads, and must make a return of the survey, and a plat of the road to the commissioners, who must cause the same to be recorded, as in other cases ; and from thenceforth the road so surveyed, will be a public highway. 1 160, 161. Form of appointment of viewers to find line of road. In the matter of finding the line of the road:[. [and others]. 90-92. Form of order of trustees vacating township road. In the matter of the petition of C. G. and \ others to vacate a township road. j The petitioners, residents of ■ ■ township, having filed their peti- tion, praying for the vacation of the township road leading from to ; and the trustees being satisfied that due notice of the inten- tion to file said petition has been given according to law, and that said road has become useless, and no injustice will be done to individuals or the public if the prayer of the petitioners be granted, It is ordered that said road be, and the same "hereby is, vacated. [If so, say also, C. C, gives notice of appeal to the probate court.] 93. Width of road may be changed. — Township trustees of the sev- eral townships have power to increase or reduce the width of any of the township roads within their respective townships within the lim- its fixed by law for the width of such roads. 1 See paragraph 1 of this chapter. 94. Proceedings therefor. — Before a township road can be increased in width as provided in paragraph 93, the same proceedings must be had, in all respects, so far as applicable, as are required for the laying out, opening, and establishing of such township road ; and before any township road can be reduced in width, as provided in the same, proceedings must be had, in all respects, so far as appli- cable, as are required in regard to the vacation of township roads. 2 95. Fees of viewers and otliers. — The law makes no direct provi- sion as to the fees of the viewers, surveyor, chain carriers, and mar- should operate very materially upon the determination of the question whether a township road shall be vacated or not. lb. Where a road has been established by a proceeding under the statute, it can not be vacated by a contract or arrangement between the commissioners and an owner of land over which it lias been laid out. Evidence of such a contract or arrangement is incompetent. Anderson v. Comm'rs, 12 O. S. 636. ig 4681. 2 §4682. CHAP. 3, 96-99.] TOWNSHIP ROADS. 73 ker of township roads. But the references made in this chapter to the laws relating to county roads would probably be construed to permit the payment of the fees mentioned in paragraph 269 of chap- ter 2. 96. Other 'provisions relating to township roads and township trustees. — lu addition to the provisions given above in this chapter, there are other important ones concerning township and other roads, and also as to the duties of township trustees and the township clerk, which are important to these officers. Among these, see carefully, paragraphs 242-254 of chapter 2 ; 4 and 9 of chapter 12 ; subdi- visions 2, 3, 4, 5 and 6 of chapter 5, and subdivisions 2, 4, 7, 8, 12, 13 and 14 of chapter 27. Also paragraphs 36-40, 42, 43, 44, 47, 49, 71, 72, and note to paragraph 1 of chapter 5, and all of chap- ter 4. For still others, see index " Trustees," etc. 74 ROAD LAWS OF OHIO. [CHAP. 4, 1. CHAPTER IV. APPEALS IN ROAD CASES. 1 INCLUDING — Subdivision 1 (Paragraphs 1-63). Appeals from final orders of COUNTY COMMISSIONERS ESTABLISHING OR CHANGING WIDTH OF COUNTY ROAD, OR ALTERING OR VACATING STATE OR COUNTY ROAD. Subdivision 2 (Paragraphs 64-83). Appeals from final decision of TOWNSHIP TRUSTEES, ON PETITION OR REPORT FOR A TOWNSHIP ROAD. Subdivision 3 (Paragraphs 84-136). Appeals as to award of compen- sation AND DAMAGES ON ACCOUNT OF ESTABLISHMENT OR ALTERATION OF COUNTY OR TOWNSHIP ROAD, OR ALTERATION OF A STATE ROAD, OR CHANGE IN WIDTH OF COUNTY ROAD. Subdivision 4 (Paragraphs 137-142). Appeal to jury from assessment of compensation and damages made by viewers appointed BY COURT. Subdivision 5 (Paragraphs 143-159 (. Appeals from county commission- ers' AWARD OF DAMAGES OR COMPENSATION FOR LOCATION OF STATE ROAD. Subdivision 6 (Paragraphs 160-169). Appeals from compensation al- lowed BY TOWNSHIP TRUSTEES AS TO ROAD MATERIALS APPROPRIATED. Subdivision 7 (Paragraphs 170-177). Probate court's record of pro- ceedings ON APPEAL, AND TRASCRIPT THEREOF TO BOARDS OF COUNTY COM- MISSIONERS AND TOWNSHIP TRUSTEES, AND PROCEEDINGS OF THESE BOARDS AND OF OTHER COUNTY AND TOWNSHIP OFFICERS THEREAFTER AS TO SAME. Subdivision 8 (Paragraphs 178-187). General provisions. Subdivision 1. Appeals from final orders of county commissioners establishing or or changing width of county road, or altering or vacating state or county road. 1. Who may appeal, and what from. — An appeal from the final order of the county commissioners establishing a county road, or al- tering or vacating, in whole or in part, a state or county road, or 1 In a case of which the court of common pleas would have had original jurisdiction, brought into that court by appeal from a justice of the peace, if the parties proceed to trial upon the merits, without objection to the mode in which jurisdiction was taken, it is too late after verdict to make such an objection. Bisher v. Richards, 95 O. S. 49. CHAP. 4, 2, 3.] APPEALS IN ROAD CASES. 75 changing the width of a count,/ road, may be taken to the probate court of the same county by any person having an estate in fee, tor life or years, in any lands or tenements, situate in any township in the' county, in or through which township such new, altered changed, or vacated road passes, or by the husband of any married froman, or guardian of any ward, having such an estate. 1 •' When such ordermay be executed,— To give time to perfect such appeal, the law forbids the executing of any such final order till twenty days have elapsed after its entry in the record of the com- missioners. 2 3. Appeal bond.— To perfect such appeal, the appellant must ex- ecute with sufficient sureties, or cause to be executed, by sufficient sureties, to be approved by the county auditor, a bond or under- taking, payable to the state, in a penal sum of not less than one The proceedings of a board of county commissioners, for establishing or altering a county road, can not be reviewed by a petition in error till the board has made a final decision of the matter pending before them. An- derson v. McKinley, 21 O. S. 467. See also note to pars. 35, 41 , chapter 2, and note to par. 3, below. An appeal from a single order of the commissioners upon two petitions by the same parties-one to establish and the other to vacate a road-granting the prayer of each petition, but making the granting of one dependent on the granting of the other, appeals both cases to the probate court. Geddes v. Kice, 24 O. S. 60. The execution of the order of the commissioners is suspended by the ap- peal until the order is affirmed by the judgment of the probate court. lb. The statute does not authorize the commissioners to vacate a county road without a view, if objections are made to its vacation, as provided by stat- ute- nor does it authorize them to unite a proceeding to establish a new road with another to vacate a road, and make the granting of one depend- ent on the granting of the other. lb. Where such consolidation is made by the commissioners, and the order of vacation is made without a view after objections thereto are duly made, and the order establishing the new road is founded on the vacation of the other, the proceedings of the commissioners are erroneous, and an appeal should be set aside by the probate court. lb. A claimant for damages in the alteration of a road is not entitled to re- cover where such alteration merely renders the road less convenient for travel, without directly impairing his access to the road from the improve- ments on his land. Jackson v. Jackson, 16 O. S. 163. 2 § 4687. 76 ROAD LAWS OF OHIO. [CHAP. 4, 4. hundred nor more than three hundred dollars, in the discretion of the auditor, conditioned for the payment by such appellant of all costs that may be adjudged against him in the probate court, or in any other court, to which the proceeding may be removed by peti- tion in error. This bond must be filed with the auditor on or before the twentieth day after the entry of the order appealed from in the record of the commissioners. 1 4. Is different from appeals as to amount of compensation and dam- ages. — Appeals from orders of commissioners and other authorities establishing, altering, vacating, etc., roads, are entirely separate and distinct from appeals as to the amount of compensation and damages. The former appeals relate only to the necessity, useful- ness, and expediency generally of such establishment or change, and to the regularity of the proceedings in such matter, and no jury is provided for nor required. The latter appeals relate only to the pecuniary harm inflicted thereby upon the owner of the land through which the road extends ; and the constitution of the state provides that when any one must so suffer, the amount of compen- sation for the land taken, and the other damages that will result, must be determined by a jury, if such person so desires. 2 Therefore, if both the former and the latter of these appeals are desired, they must be separately pursued and tried, and separate appeal bonds must consequently be given. 1 g 4689. The act which is the basis of this and other parts of the road laws of Ohio is not repugnant to art. 1, sees. 5 and 19 of the constitution [see pars. 72, 73, chapter 27], relating to trial by jury. The right of appeal provided for in them to the probate court, where a constitutional jury may be had, val- idates them; and the requiring of an appeal bond, with sureties, etc., does not contravene such right of trial by jury. Reckner v. Warner, 22 O. S. 275. See also Cupp v. Commissioners, 19 O. S. 173; Norton v. MoLeary, 8 O. S. 205; Kramer v. R. R., 5 O. S. 140. See note to par. 1, above. A law providing for such trial by six jurymen was decided to be uncon- stitutional. Lamb v. Lane, 4 O. S. 167. Th<; appeal is perfected when a bond is filed with the auditor. Geddes v. Rice, 24 O. S. 60. See also note to par. 15, below. 2 See \ 19, art. 1, constitution; notes to pars. 1 and 3, above; also, subdi- vision 12 of chapter 27. The law especially provides that, in proceedings in appeal as to compen- CHAP. 4, 5-13.] APPEALS IN ROAD CASES. 77 5-9. Form of appeal bond. Know all men by these presents, that we, A. S., L. R., and M. S., of county, Ohio, are held and firmly bound unto the State of Ohio, for the use of county, in the sum of dollars, to the payment of which we jointly and severally bind ourselves, our heirs, executors, ami administrators, by these presents: Signed by us at , on the day of , 18 — . The condition of the above obligation is such that whereas, the said A. S. appeals to the probate court of said county, Ohio, from the final "order of the commissioners of said county, made at their session, , 18 — , establishing a county road [or, altering or va- cating a state or county road or changing the width of a county road, as may be] from to , petitioned for by A. B. and others, Now, if the said A. S. shall pay all costs that may be adjudged against him in the probate court, or in any other court to which the proceed- ing may be removed by petition in error, then this obligation shall be void; otherwise it will be and remain in full force and effect. 1 A. S., L. R., M. S. Filed and approved , 18 — . W. O, County Auditor. 10-12. Entry as to filing bond, and form of. — To keep the chain of the road record unbroken, an entry of the filing of the bond should be made in the commissioners' road record, which may be as follows : In the matter of the road, ) , . ,-,. , , , petitioned for by A. B. and others, j As io fi lm 3 a PP eal bond - A. S. appeals from an order of the county commissioners of county, Ohio, made at the session, 18 — , establishing said road [or, other- wise, as may be — see the bond] and *has this day filed his appeal bond, approved by the auditor of said county. 13. Who need not give appeal bond. — Minors, idiots, or lunatics, or their guardians respectively, may appeal without giving bond, sation and damages, the court "shall confine itself to the question of com- pensation and damages." See par. 87, below. Also, Anderson v. McKinley, 24 O. S. 471-2. Appeal does not lie to the decisions of the county commissioners in the cases of taking property for ditches or roads, or making assessments for im- provements. Bowersox v. Watson, 20 (). S. 496. See, further, same case in note to par. 272, chapter 23. 1 See note 2, page 2. 78 ROAD LAWS OF OHIO. [CHAP. 4, 14-22 by causing an entry to that effect to be made within the twenty days mentioned in paragraph 3, above, by the county auditor in the record of the commissioners. 1 14. Form of such entry. [Follow the preceding form to the * then add'] it appearing that said A. S. is a minor [or, guardian, etc.'], no appeal bond is required from said appellant. 15. Auditor to transmit papers to court. — Within ten days after the filing of an appeal bond, or the making of an entry for an appeal, as mentioned in paragraphs 3 and 13 above, the county auditor must transmit to the probate court the original papers in the pro- ceeding, and a certified transcript from the record of the commis- sioners, of all proceedings and orders had or made by or before them therein. 2 16. Though this transcript should contain nothing done at any meeting except what relates to the road, it should show that fully, and should include so much of the minutes as show a proper meet- ing of the commissioners, and adoption of minutes containing a record of any of such proceedings ; and all orders, etc., relating to the road must be copied in full, in so far as they are so copied into the minutes. For example : 17-22. Form of Transcript. Commissioners' office, county, , June session, June — , 18 — . The board of county commissioners of county, Ohio, met this day in regular session. Present, , , and commissioners, and , ex-officio clerk. Minutes of previous meeting read and ap- proved. In the matter of the road 1 petitioned for by A. B. and others. J [Here copy what was done as to said road, the petition if copied into minutes, etc., and nothing relating to other matters.] 1 1 4689. 2 § 4690. The jurisdiction of the probate court acquired by such appeal is not lost by the failure of the auditor to transmit, the original papers and transcript of the proceedings before the commissioners within the time directed by the statute. Geddes v. Rice, 24 O. S. 60. CHAP. 4, 23-28.] APPEALS IN ROAD CASES. 79 The Board then adjourned, to meet , 18 — . Attest: W. C, Clerk. S.W., President. \_And so on for each day on which any thing was done about the road. At the close of the transcript add the following certificate] : 23. Commissioners' office, county, Ohio, 18—. 1 hfi-eby certify that the foregoing is a true and correct transcript, from the records of the county commissioners of said county, of all proceedings and orders had or made by or before said commissioners in the matter of the road, petitioned for by A. B. and others. W. C, Auditor of county, Ohio. 24. Docketing of case. — Upon the receipt of these papers and this transcript, the probate judge must forthwith docket the proceedings, styling the petitioners plaintiffs, and the appellants defendants, and must set a day for the hearing thereof, which must not be later than the twentieth day after such docketing of the appeal. 1 25-27. Form of entry, setting day of hearing, etc. A. B. [and others, if so], plffs. ] vs. V Road appeal. — Papers filed, case set, etc. A. S. \_and others, if so], defts. ) A transcript of the record of the county commissioners of this county, duly certified to as showing all the orders and proceedings had or made by or before them in the matter of the petition of A. B. and others for a road from to , and also the original papers therein, were this day received from the auditor of said county, in pursuance of said plaintiffs' appeal as to [state what matin- is appealed from]. Said cause is set for hearing on the day of , 18 — , at • o'clock, — M. 28. When previous proceedings must be affirmed. — If no appeal has been taken from the assessment of compensation and damages, as provided in subdivision 3 of this chapter, and if, upon the hearing mentioned in paragraph 24 above, it appears that the proceedings previous to the appeal under this subdivision were, in substance, regular and legal, the probate court must affirm the order of the commissioners, and enter judgment against the appellants for all costs created by the appeal. 2 1 2 4690. »g4691. 80 ROAD LAWS OF OHIO. [CHAP. 4, 29-34 29-31. Form of entry, affirming previous proceedings. State of Ohio, county, ss. Probate court. A. B. [and others, if so], plffs. ) „ , , D ?• r L , ( Road appeal. Previous proceedings af- A. S. {and others, if so], defts. j ./"" me This cause came on this day to be heard, in accordance with the pre- vious order of this court therein, on appeal from the final order of the county commissioners of said county, establishing a county road [or otherwise, as the order may be] petitioned for by said A. B. and others ; and the court finds, upon examination of the original papers and the com- missioners' proceedings, and hearing of evidence and argument, that the proceedings had by and before the commissioners, previous to the appeal, were, in substance *, regular and legal; and no exception being taken to the assessment of compensation and damages returned to said commissioners, said proceedings are affirmed; and it is ordered that the appellants [name them] pay all costs that have been created by said appeal, taxed at $ . 32. When proceeding must be set aside. — If the previous proceed- ings are found to be substantially erroneous, the court must set them aside, and order another view by three disinterested freeholders of the county, to be appointed by the court, who must perform the same duties that are required by chapter two, of viewers appointed by county commissioners, except that they must make their return to the probate court. 1 33. Order to viewers must specify what. — The order to the viewers must specify a place where, and a day upon which, or within two days, Sundays excepted, thereafter, they must meet to commence the performance of their duties, and must require them to make their report on or before a clay specified in the order, which must not be later than the twentieth day after the entry of the last men- tioned order of the court. 2 34. Court must appoint a surveyor; as to chainmen, etc. — The court must also appoint a surveyor to attend the viewers, who must perforin the duties required of surveyors by chapter 2. He may take to his assistance two chainmen and a marker, all of whom must be disinter- ested parties. 3 If surveyor fails to attend, see paragraphs 172-183. 1 \ 4691. If a viewer fails to attend to his duties, see pars. 54, 89, chap. 2. 2 I 4692. 3 § 4692. In chapter 2, the viewers must appoint chainmen and markers. See par. 39 of that chapter. CHAP. 4, 35-39.] APPEALS IN ROAD CASES. 81 35. Surveyor's report. — •The surveyor must deliver a report and plat of his survey to one of the viewers, in time to be returned with their report, and it must be so returned. 1 36. The viewers, surveyor, etc., must be sworn before entering upon their duties. See more fully, paragraph 184. 37. The law in the five preceding paragraphs, having ordered all " previous proceedings" set aside, provides for the appointment of new viewers and surveyor, and points out their duties, but is not definite in other respects. How are these appointees to be notified of their appointments and of their duties? In chapter two, the commissioners must not only appoint, but " must issue an order to proceed," etc., 2 in accordance with which the auditor, as their clerk, issues such order. 3 38. It seems to be the intention of the law that, after setting aside the previous proceedings, all subsequent proceedings shall be as directed in chapter two (or chapter one, as may be) so far as ap- plicable, except in so far as otherwise provided, and that among other things, such viewers must re-assess compensation for land ap- propriated, and damages arising from the location, etc., of the road. But in any case, there is no doubt that the court has the power, in- cidentally or under the statute, 4 to make such an entry in its journal as given in paragraphs 40-42 below ; and in addition to this, to give an order directly to the viewers and surveyor similar to the one in pars. 45-52 of chapter 2 ; or else to enter in its journal an order similar to the one given in par. 43 below, and to give to the viewers and surveyor a certified copy of this latter order — or the court may intrust to these viewers the original papers, and order them to per- form the same duties imposed upon the original viewers by law and those papers. Such an order would be short and very definite. But the danger of loss of such papers makes this course one of doubtful expediency. 39. Must land-owners be notified. — The law is silent as to whether or not the land-owners must be notified of the new view to be made by order of the court, as above provided. If the view expressed in the first part of paragraph 38 above be correct, they must be. At 1 1 4692. 2 See pars. 35-38, chapter 2. 3 See pars. 45-52, chapter 2. 4 See note to par. 74 below; also, note to par. 137 below. 6 82 ROAD LAWS OF OHIO. [CHAP. 4, 40-44. any rate, it is the better and safer practice to require them to be notified, since the new viewers may, by changing the line of the road, etc., change the amount of damages or compensation fairly due such land-owner. 1 40-42. Form of entry, setting aside previous proceedings, appointing viewers, -etc. [Follow the form in paragraphs 29-31 above to the *, then add'] : errone- ous, in this respect [state in what respect], it is therefore ordered that said order and proceedings be set aside and vacated, and that F. II., G-. S., and H. T., three disinterested freeholders of county, be and they are hereby appointed viewers, and J. U., surveyor, and that they mee t at , on the day of , 18—, at — o'clock a. m., or within two days thereafter [Sunday excepted, if that day could intervene], and, after* being duly sworn, proceed to view and survey said road [or, al- teration, etc.], according to law, and make report of their proceedings to this couft, on or before the day of , 18 — . It is further ordered that said A. B., principal petitioner [or, the sher- iff of said county, or otherwise], give notice to the land-owners affected by said road, as required by law in the original proceedings before the county commissioners. 43. Another form for same. [Follow the preceding form to the * then add] : taking an oath or affir- mation faithfully and impartially to discharge the duties of their re- spective appointments, proceed to view, survey, and lay out said road along the line originally petitioned for [or, along the following route — and here describe said route, as in petition], or as near thereon as in their opinion a good road can be made [and here finish substantially as in form in pars. 45-52, changing the second person there found to the third person — i. e. you to they, etc. — also ordering report made to court, instead of to commissioners* and adding order to give notice to land-owners, as in preceding form]. 44. Same, if assessment of compensation or damages appealed from. [Follow pars. 29-31 above to the *, then add]: regular and legal; but [or, if so, say erroneous; and] the court further finding that the said A. S. has also taken an appeal from the final decision of commission- ers in relation to the amount of compensation and damages assessed 1 As to notice and its service in such case, the following section of the statute probably applies. As to notice under chapter 2, see pars. 59-75. I 6406. When notice of any proceedings in a probate court shall be re- CHAP. 4, 45-49.] APPEALS IN ROAD CASES. 83 to him by reason of the location of said road through his premises, it is ordered that the clerk and sheriff of said county cause a jury of twelve men to be selected and returned according to law, to serve as jurors upon the trial of said claim for compensation and damages. \_The subsequent proceedings loill be as directed in subdivision 3.] 45. Other forms. — As to forms of notice to land-owner, of viewers' and surveyor's reports, etc., see chapters 1 or 2, as the case may require. 46. When court must confirm proceedings. — If the proceedings and report of the viewers and surveyor, or of the reviewers mentioned in paragraph 50 below, be substantially legal, and also substantially coincide with the order of the commissioners appealed from, the court must confirm such proceedings and report, and must render a judgment against the appellants for the costs created by the ap- peal; or, 47. If the report of the viewers be favorable to the petitioners, but materially varies from the order appealed from, the court must nevertheless confirm the report of the viewers if it be within the scope of the petition and substantially legal. 1 48. As to costs. — The court may, in the latter case, require all the costs created by the appeal to be paid by the appellants, or by the petitioners, or a portion of them by the one party, and the resi- due by the other, as may be equitable, and must render a judgment accordingly. 1 49. Form of order, confirming report of viewers. [Give caption.'] This cause came on this day further to be heard, and the viewers and surveyor appointed herein having filed their report [and a plat and survey, etc., as may be], as required, and it appearing upon examination thereof, that the said report and proceedings of said viewers and sur- veyor are * substantially legal, and substantially coincide with the or der of the commissioners appealed from, said report and proceedings are approved and confirmed ; and it is ordered that said A. S. [and others, quired by law, or deemed necessary by the probsite judge, and the manner of giving the same shall not be directed by statute, the probate judge shall order notice of such proceedings to be given to all persons interested there- in, in such manner and for such lengths of time as he may deem reasonable. 1 1 4693. 84 ROAD LAWS OF OHIO. [CHAP. 4, 50-57 if any'], appellants, pay the costs created by said appeal, taxed at dollars [or, begin at the * above, and say], substantially legal, favorable to the petitioners, and within the scope of the petition, though varying materially from the order appealed from. It is therefore ordered that [and here tax the costs as indicated in paragraph 48]. 50. When review may be ordered. — If the report of the viewers, ap- pointed by the court, be adverse to establishing, altering, vacating, or changing the width of the road, the court must, upon the motion of the petitioners, or any twelve of them, but not otherwise, order a review by five disinterested freeholders of the county, to be ap- pointed by the court. 1 51-53. Form of motion for review in such case. A " B- ) State of Ohio, County, Probate Court: , ~ ' . , [ Motion for revieiv of road. A. S. etel. ) J J The undersigned, petitioners for the road in respect to which an ap- peal has been taken by said A. S., and others, move the court for a review of said road, for the following reasons [give reasons]. 54-56. Form of order for review of road. [Follow paragraph 49 to the * then add], adverse to establishing [or, al- tering, etc., as may be], the road, and the said A. B. and [name them ; show- ing twelve or more] having filed their motion for a review of said road [or, altertion, etc.], It is ordered that B. Z., C. Y., D. X., E. W., and F. V., five disinter- ested freeholders of said county be, and they are hereby, appointed as reviewers to examine said road [etc.] ; that they meet at , on the day of , 18 — , at — o'cock a. m., and that, after per- forming the other duties of their appointment, they report, in writing, their opinion for or against said road, with their reasons therefor, on or before [not later than the twentieth day after the date of the order], C. E. is appointed surveyor, to act as required by law, with said reviewers. 57. Duties of reviewers. — To the reviewers so appointed an order similar to that hereinbefore prescribed in respect to viewers must, be issued. Such reviewers must examine the proposed new road, alteration, or change, or road, or part thereof, proposed to be va- cated, as defined or referred to in the order appealed from, and re- 1 1 4694. CHAP. 4, 58-63.] APPEALS IN ROAD CASES. 85 port, in writing, to the court, their opinions for or against the same, with their reasons. 1 58. As to surveyor, chainrnan, absent reviewer, etc., in such review. — Though the preceding paragraph does not indicate that a sur- veyor is to bo appointed, yet the law in paragraph 54 of chapter 2 shows that one must be, as it provides that, in case of a review, when five viewers are required and appointed by the commissioners or probate judge, if one of them is absent at two o'clock p. M., " the surveyor and not less than three of the viewers may appoint a judicious freeholder," etc. The employment of a surveyor implies the employment of chain carriers and markers, if necessary. The remarks in paragraphs 38 and 39, above, are applicable here. 59. As to bond. — As the petitioners for review are the same as the original petitioners, no additional bond is required of them. See paragraph 61, below. 60. Form of order of oath and report of reviewers. — For form, easily adapted for use here, of reviewers' oath, see paragraphs 77, 78, of chapter 2. For form of order to, see paragraphs 137-141 of same chapter. For form of report of, see paragraphs 149-153 of same chapter. 61. Proceedings on reviewers' report. — If the report of the reviewers be such as is mentioned in paragraph 46, above, the court must proceed as directed in that paragraph, 2 and should issue an order substantially as in paragraph 49, except that where the word "view- ers" is there used, the word "reviewers" should be used. 62. If the report of the reviewers be adverse to such new road, alteration, change, or vacation, no further proceedings can be had in the premises, except to render a judgment against the petitioners for all costs that have accrued from the commencement of the pro- ceedings before the commissioners. 2 63. Form of judgment. [Follow paragraph 49 to the * saying, "reviewers" instead of "viewers," omitting the words, "and proceedings are," then add] is adverse to said new road [or, alteration, etc.], it is ordered that no further proceedings l l 4694. As to orders "hereinbefore prescribed," see pars. 32 and 33 of this chapter, and par. 35 of chapter 2. 2 {M694. 86 ROAD LAWS OF OHIO. [chaf. 4, 64-73 be had upon the petition of the applicants. And it is considered by the court that the State of Ohio recover against the said \jn.ame all the petitioners'], all costs that have accrued upon their said application since the commencement of the proceedings before the commissioners, taxed atf . [See also subdivisions 7 and 8 ] Subdivision 2. APPEAL FROM FINAL DECISION OF TOWNSHIP TRUSTEES ON PETITION OR REPORT FOR ESTABLISHING, ETC., A TOWNSHIP ROAD. 64. How appeal taken, etc. — An appeal from the final decision of the township trustees on any petition or report for a township road, may be taken to the probate court, by the appellant's entering into bond to the state, for the use of the township, in the sum of one hundred dollars, with sufficient surety, to the acceptance of the township treasurer, within fifteen days from the date of the decision of the trustees, conditioned for the payment of all costs and expenses arising from such appeal, if the road be established. 1 See also para- graph 4. 65. Any person in the township may appeal, in the same man- ner, from the final decision of the trustees vacating a township road. 2 66. An appeal may also be had from the decision of the joint board of two townships, establishing, or refusing to establish a road upon or across the dividing line of the townships. 3 67. When the appeal is from the decision of the joint board of trustees of more than one township, such a bond must be given in each township. 4 68. When township road may be opened. — To give time to perfect such appeals, the law forbids the issuing of any order to open a township road until fifteen days after it has been established. 4 69-73. Fonn of bond. Know all men by these presents, that we, A. S., C. D., and E. F., are 1 \ 4097. This paragraph evidently refers only to a final order of the trustees establishing a township road. If the final order of the trustees refused to establish the road, further proceedings maybe had only hy beginning anew. As to an appeal from award of compensation and damages, see par. 84. See note to par. 4. 2 1 4683. 3 § 4687. * § 4680. CHAP. 4, 74.] APPEAL IN ROAD CASES. 87 held and firmly bound unto the State of Ohio, for the use of ■ town- s hip ) county, Ohio, in the sum of one hundred dollars, to the pay- ment of which we hereby bind ourselves, our heirs, executors, and ad- ministrators. Signed by us, at , this day of , a. d. 18 — . The condition of the above obligation is such, that, whereas, the said A. S. [or, A. S. and C. D., and others, if so], appeals to the probate court of said county from the final decision of the trustees of said town- ship, establishing [or, vacating, or, refusing to establish, etc.'], a town- ship road, on the petition of A. B., and others, from [here describe the road as in petition, or otherwise definitely]. Now, if the said A. S. [or, A. S. and C. D., if so], shall pay the costs and expenses that may arise from such appeal, in case said road be es- tablished [or, vacated, etc., as may be], by proceedings in the probate court, then this obligation shall be void, otherwise it shall remain in full force and effect. 1 A. S., C. D., E. F. Bond and sureties accepted, , i 8 — . P. R., Township Treasurer. 74. How appeal completed. — The law provides that such appeal must be entered with the probate judge, within six days from the filing of the bond with the township treasurer. 2 But beyond this provision, it is entirely silent as to how such appeal is to be en- tered, how the township trustees or clerk are to be notified of the intention to appeal, and that such bond has been filed; nor does it here impose directly any duties on any of these officers, as to such appeal. It probably was, however, the intention of the legis- lature that the proceedings in such cases should be similar to those in the preceding subdivision ; and that, in this case, the township clerk should perform the duties imposed upon the county auditor in similar appeals as to county roads, since the clerk stands in much the same relation to the township trustees as the auditor does to the county commissioners, in road matters. Assuming that such is the spirit of the law, if not its letter, and that it should be so con- strued as to give effect to its provisions that are expressed, 3 the 1 See note 2 on page 2 as to witnesses and seals to bond. 2 1 4698. 3 It is well settled that several acts in pari materia, and relating to the same subject, are to be taken and comprised together in construing them ; because they are considered as having one object in view, and as acting 88 ROAD LAWS OF OHIO. [CHAP. 4, 74. proceedings should be substantially as directed in the following paragraphs. 1 upon one system. The object of the rule is to ascertain and carry into effect the intention; and it is to be inferred that a code of statutes relating to one subject, was governed by one spirit and policy, and was intended to be con- sistent and harmonious. Him v. State, 1 0. S. 15, 20. To illustrate — Where the statute regulating the proceedings of justices of the peace, and the code of civil procedure were passed within three days of each other, if the policy or purpose of the one were at all doubtful, the light which is reflected thereon by the plain terms of the other, in pari materia, is not to be disregarded. (Per Scott, C. J.) Jones v. Carr & Co., 16 O. S. 420, 428. In giving a construction to any statute, the court must consider its policy, and give it such an interpretation as may appear best calculated to advance its object by effectuating the design of the legislature. Wilber v. Paine, 1 O. 251, 255. Statutes should be so construed as to give effect to the intention of the legislature, and, if possible, render every section and clause effectually operative. Pancoast v. Puffin, 1 O. 381, 385. In construing a statute, punctuation may aid, but does not control unless other means fail ; and in rendering the meaning of a statute, punctuation may be changed or disregarded. Albright v. Payne, O. S. "Take up and confine the same forthwith, giving notice thereof to the owner," construed to mean, " Take up and confine the same, forthwith giving notice thereof to the owners." lb. See same more fully in first note to par. 29, chap. 20. An act will not be declared void for uncertainty, if by resort to the recog- nized aids in the construction of statutes, it is possible to ascertain its mean- ing. State v- Comm'rs., 35 O. S. 458. Where there is any thing doubtful in a statute, it is the duty of a court, in expounding it, to give it such a construction as will comport with what is supposed to have been the intention of the enacting power. And where the intention is manifest, but that intention is in part defeated by the use of some particular word or phrase, the court will look to the intention 1 The law itself, in §4707 (par. 170 below), assumes that the clerk has forwarded to court original papers, as the count}' auditor is directed to do in pars. 15-23 above ; and the law in par. 169 below assumes that a view is actually provided for in matters treated of in this subdivision. A local and special act is nut repealed or otherwise affected by the con- flicting provisions of a subsequent general statute on the same subject, un- less the legislative intent that such effect be given the latter enactment, is clearly manifest. Comm'rs. v. B. P. W. 39 O. S. 628. CHAP. 4, 75-] APPEAL IN ROAD CASES. 89 75.—Noiioe of appeal.— Notice of the appeal should he given rather than the words. But where there is nothing doubtful, nothing am- bi«r UO us-no words made use of which operate to defeat the manifest inten- tion of the legislature, there is nothing left for construction. McCormiek r . Alexander, 'J O. 65,74. The words of a statute are not the only sources from which its meaning is to be gathered. It is one of the most familiar duties of a court to con- sider its object, scope, end, the form of its remedy, and the evils that ead to its adoption, so that it may receive that interpretation that will work its due effect. Van Matre v. Buchanan, W. 233, 235. In giving a construction to one section of a statute, the court should look through the whole statute, and if possible, so construe it that the whole may have effect, and that one part shall not defeat another. Patton v. Sheriff, 2 O 395 397. A statute should be so construed that the several parts will not only ac- cord with the general intent of the legislature, but also harmonize with each other; and a construction of a particular clause that will destroy or render useless any other provision of the same statute, can not be correct. No word ever should be rejected, if the statute will admit of a rational and consistent construction without rejecting it. Allen's Lessee v. Parish, 3 O. 187, 193. Courts, in construing statutes, aim to come as near the literal meaning ot the legislature as possible, but will gather that meaning from the whole act, instead of isolated expressions, and so construe the act as to effect, not de- feat, the beneficial end contemplated by the legislature in the enactment. Habere. Heis, W. 19. It is a settled rule of construction that the intention of the law-maker is to be deduced from a view of the whole and every part of the enactment taken and compared together. He must be presumed to have intended to be consistent with himself throughout, and at the same time to have in- tended effect to be given to each and every part of the law. And from this it results that general language found in one part is to be modified and re- stricted in its application, when it would otherwise conflict with specific provisions found in another; and this, from the reasonable and almost irre- sistible conclusion, that when the mind is directed to any particular subject, the language used is more likely to express the intention than general words, which might otherwise cover it, but from which it does not appear that the par- ticular case was intended to be provided for. State v. Blake, 2 O. S. 147, L51. It is also a well settled rule that when two laws of the same state are in conflict, the last one passed is the one that governs. See also note to par. 79 below. What the legislative intention was, can be derived only from the words they have used, and we can not speculate beyond the reasonable import of these words. The spirit of the act must be extracted from the words of the act, and not from conjectures aliunde. Brower v. Hunt, 18 O. S. 311, 341. See also note 4. page 173. 90 koad laws of ohio. [chap. 4, 76-80 stating, as in the bond, what order is appealed from. When such notice is given, a minute thereof should be entered upon the jour- nal of the proceedings of the trustees. 1 76, 77. Form of such notice. To the clerk and trustees of township, county, Ohio: You are hereby notified that appeal to the probate court of said county from the final decision of said trustees, rendered , 18 — , as to [specify the report, etc., appealed from], and that I filed my bond therefor with the township treasurer, on the day of , 18 — . [Date.] [Signature.] 78. Filing original papers and transcript. — The township clerk then should, within six days from the time of filing this bond, file a certified transcript of the proceedings had by and before the town- ship trustees in relation to the road matter appealed from, with the probate court, substantially as directed in paragraphs above. 79. How probate court must proceed. — The probate court must pro- ceed to a decision substantially as directed in the preceding subdi- vision; 2 and may, in such cases, order another view of the road, another assessment of damages, or make any other order which may be just and reasonable in the case. 3 80. To whom its decision certified. — Such decision so obtained must be certified to the township clerk, who must notify the trustees ac- cordingly concerning it. They must then make an order disposing of the case agreeably to the order of the probate court. 4 1 In the case of county roads, such notice is not necessary, because the bond, which sufficiently states the order appealed from, is tiled with the auditor, who must file the original papers and transcript with the court. But in this case the bond is filed with the township treasurer, and the clerk has no means of knowing that this has been done. In the case of state road appeals as to compensation, notice of appeal is explicitly required. See par. 143. ■-'■■ 1698. "As provided in the preceding sections," is the language of the statute; and as there is only one section preceding which relates to the appeals con- sidered in this subdivision, this shows that as to the court at least, if not the township officers, the view expressed in paragraph 74, above, is correct. 8 \ 4097. ' . 1698. See par. 170, below. CHAP. 4, 81-85.] APPEAL IN ROAD CASES. 81, 82. Form of order of trustees. In the matter of the petition of A. B., j and others, for a township road. ) A transcript of the proceedings had in this case in the probate court on appeal, having been returned to this board, whereby it appears that [slate the order of the court-]. It is, therefore, ordered that [make an order s ponding with the decision of the probate court]. 83 Fees.— The probate judge may tax the same fees which are by law allowed for similar services in other cases. 1 [See also sub- divisions 7 and 8.] Subdivision o. APPEALS AS TO COMPENSATION AND DAMAGES ON ACCOUNT OF ESTABLISH- MENT OR ALTERATION OF COUNTY OR TOWNSHIP ROAD, OR ALTERATION OF A STATE ROAD, OR CHANGE IN WIDTH OF A COUNTY ROAD. 84. Who may appeal— Every claimant of compensation and dam- ages on account of the establishment or alteration of a county or township road, or alteration of a state road, or change of width of a county road, may appeal to the probate court, from the final decis- ion of the county commissioners or township trustees, confirming the assessment of compensation and damages made by the viewers in his behalf, or the refusal of the viewers to award damages to him. 2 It is also specifically provided that the court may order another view of a township road, and assessment of damages, on appeal from the final decision of the township trustees, on any pe- tition or report for such road. 3 85. How such appeal perfected and docketed.— The law directs that such appeal must be perfected and docketed in the mode prescribed in paragraphs 15-27, except that the appellant must be made the plaintiff, and the obligors in the bond (given by the petitioners for the road) must be the defendants. 4 But as this can apply only to proceedings before county commissioners, it is apparent from the general conclusions in paragraph 74 that, as to proceedings by town- ~ 24698. a H699. "§4697. * \ 4G99. The words in parentheses above are not in the statute ; but this is evidently the meaning of the law, since, if the obligors in the bond given by appellant were meant, the appellant would be both plaintiff and defend- ant, which would be absurd. See note 3 to par. 74, above. As to right to trial by jury, on appeal, etc, see note to par. 3, above, and notes there referred to. 92 ROAD LAWS OF OHIO. [chap. 4, 86-93 ship trustees, the appeal must be perfected by giving notice and filing original papers, as provided in paragraphs 64, 74-79, above, and that the court must certify back its proceedings to 'the town- ship trustees. In all other respects the proceedings must be as di- rected in this subdivision. 86. Claimants may unite. — Several claimants may unite in a joint appeal, although their claims may be distinct, or they may severally appeal. 1 87. Court confined to what questions, on such appeal. — Upon such appeal, whether joint or several, the probate court must confine itself to the questions of compensation and damages presented by it. 2 88-92. Form of appeal bond, in such case. Know all men by these presents, that we, A. S., L. R., and M. S., of county, Ohio, are held and firmly bound unto the State of Ohio, for the use of county [or, for the use of township, in county, as may be], in the sum of dollars, to the payment of which we jointly and severally bind ourselves, our heirs, executors, and ad- ministrators by these presents. Signed by us, at , on this day of , 18 — . The condition of the foregoing obligation is such that, whereas, the said A. S. [name others, also, if they join] appeals to the probate court of said county, Ohio, from the final decision of the commissioners of said county [or, of the trustees of said township, as the case may be], made at their session, , 18 — , in relation to the application of said A. S. for compensation [or, damages, or, compensation and dam- ages, as may be] on account of the* location [or, alteration, or, change of width, etc ], over his premises, of a state [or, county, or, township] road, from to , petitioned for by A. B. and others. Now, if the said A. S. [and others, if they joined in appeal~] shall pay all costs* that may be adjudged againt him [or, them] in the probate court, or in any other court to which the proceedings may be removed by petition in error, then this obligation shall be void; otherwise, it will be and remain in full force and effect. A. S., L. R., M. S. Filed and approved , 18— . 3 W. C, County Auditor [or, township Treasurer]. 93. Form of bond in case of township road. — Follow the foregoing form in all respects, except that from the *, it should read " and ex- penses arising for said appeal, if the assessment of compensation 1 2 4699. 2 2 4700. See par. 4. ; See note 2, page 2. CHAP. 4, 94-99.] APPEALS IN ROAD CASES. 93 and damages be not increased by the proceedings in the probate court, then this obligation shall be void ; otherwise [and finish as above]. 94. Jury must be ordered.— Immediately after docketing the case, the court must cause a jury of twelve men to be selected and re- turned by the clerk and sheriff of the county, as provided by law. 1 95-99. Form of entry, docketing case, and ordering jury. The State of Ohio, county Probate court: A. S. [name all appellants], plffs., I Casg No R oa d appeal— Papers v ' s - „ m , ,. f filed, case set, jury ordered, etc. A. B., Q. R., and S. T., defts. ) A transcript of the record of the board of county commissioners of J g 4700. The phrase " as provided by law" above may refer to § 5167, as amended, 80 O. L. 219, found in the title relating to " Procedure in Courts of Common' Pleas and Superior Courts and District Courts on Appeal," which provides that between 10 and 12 o'clock a. M.on the forth Monday before the sitting of the court of common pleas, the clerk must, in the presence of the sheriff, by whom the box containing the names of citizens who may be drawn as jurors shall be shaken before the drawing is made, draw twenty- seven names of persons from this box, and not more than eight others if the judge so directs, the first fifteen to be grand jurors ; and that from the others the'petit jury must be selected, unless challenged, etc., after which the clerk must issue a venire to the sheriff to summon these jurors. But, since § 4702 (see par. 118 below) provides that the oath of the jury shall conform, as nearly as may be, to the oath prescribed for the jury in proceedings by corporations to appropriate property, that phrase may refer to \ 6421, also relating to such appropriations, which section directs that the probate judge must "issue an order to the clerk and sheriff to draw sixteen names from the jury box, as in other cases ; and within two days after the receipt of the same, they shall execute the order, and the clerk shall forth- with return it to the probate judge, with a list of the names drawn indorsed thereon : and the judge shall issue to the sheriff a venire," etc. This seems to be most in accordance with the course provided in this chapter, except the twelve names directed. That g 2240 of chapter relating to appropriation of property by munici- pal corporations is not meant, is evident from the fact that, in that section^ the sheriff has no part whatever in drawing the names, and that the clerk makes no list of the names drawn, and in fact does nothing except draw the names from the box. He must, " on the day fixed for the application, in the presence of the probate judge, draw twelve names, or such less number as may be agreed upon by the parties, from the box containing the names of persons selected as jurors for the county." The requirements as to jury, in par. 154 below, are similar to those in par. 94- 94 ROAD LAWS OF OHIO. [CHAP. 4, 100-102. said county [or, township trustees of township in said county], properly certified as showing all the orders and proceedings had or made by or before them in the matter of the petition of said A. B. and others for a road [_or, alteration of a road, etc ] from to , and also the bond and other original papers therein, were this day receiv- ed from the auditor of said county'[or, clerk of said township], in pur- suance of said plaintiff s appeal as to [stale the matter appealed from, as i, in the bond, e. g.~\ the amount of compensation and damages al- lowed him [or, them] by said board, on account of the location, through his premises, of said road. Said cause is set for hearing on the day of , 18 — , at — o'clock — M., and the sheriff and clerk of said county are ordered to select twelve men to serve as a jury in said cause, and to return to this court the names of the persons so selected, according to law. 100. Form of order to clerk and sheriff. To the clerk of the court of common pleas and sheriff of county Ohio: You are hereby notified that proceedings are now pending in the probate court of said county, docketed as Case No. — , wherein A. S., et. al. are plaintiffs, and A. B. el. al. are defendants, on appeal for the final order of the county commissioners of said county [or, township trustees of township in said county] as to the amount of compen- sation and damages allowed to said plaintiffs on account of the estab- lishment of a certain road over their premises, and that a jury has been ordered by the said probate court to be drawn by you according to law. You will make return, to this court, of the names so drawn' accordingly. 101. How names drawn returned to court. — The clerk and sheriff must draw the names from the jury box within two days, and the clerk must then at once indorse the names so drawn on the order received from the court, and return the orders') indorsed, and duly certified to the effect that the names so indorsed are the names drawn from the box, to the probate judge. 1 102. Form of clerk's certificate. 1,0. C, clerk of the court of common pleas in and for the county of , Ohio, hereby certify that the following is a correct list of the names of the jurors drawn from the jury box of said county by the sheriff thereof and myself, on the day of , 18 — , in obedience to 1 See note to par. 94. CHAP. 4, 103-112.] APPEALS IN ROAD CASES. 95 the within writ. [Here follow, one under the other and with post-office ad- dress, if desired, the names of the jurors drawn, and then the clerk's offi- cial signature.~\ 103. Venire to jury. — After receiving the names of such jurors, the probate judge must issue a venire commanding them to appear in court, on a day and hour named in the venire, which must not be later than the twentieth day from its date, to serve as jurors upon the trial of such claims. 1 104-109. Form of venire. The State of Ohio, County, Probate Court. To the sheriff of said county, greeting: You are hereby commanded to summon [name the jurors~\ to appear in this court, on the day of , 18 — , at — o'clock — m., then and there to serve as jurors in a cause now pending in said court, wherein A. S. is plaintiff, and A. B. and others are defendants. Hereof fail not, and of this writ make due return. Witness my signature and the seal of said probate court, this day of , a. d. 18 — . J. W. Probate Judge, [seal.] 110. Notice to appellants and obligors. — The court must also issue a summons or notice to all the appellants, whether joint or several, and to the obligors aforesaid, to attend at the same time and place fixed by court. Such summons or notice must be served by deliv- ering to each person named therein a copy thereof, or by leaving such copy at his usual place of abode. 2 111. If any of the parties are non-residents of the county, but have an agent or attorney therein, service on such agent or atttorney, as directed in the preceding paragraph, will be sufficient; or a summons or notice may be sent to another county for service upon any party residing or being therein. If an appellant is a non-resident when he perfects his appeal, he must leave with the probate judge the name of an agent or attorney in the county upon whom service may be made, and if he fail to do so, no service upon him will be necessary ; and service upon a guardian must be sufficient service upon his ward. 2 112. Such notice may be directed to the parties, or to the sheriff, 1 24700. 2§ 4701. 96 EOAD LAWS OF OHIO. [CHAP. 4, 113-119. as in usual form of summons, and may best be served by that of- ficer, who should make return as on other summons. This is, how- ever, left by the law in this subdivision to the discretion of the court. 1 113-117. Form of summons or notice. The State of Ohio, county, Probate Court. To A. S., Q. R., S. T. [etc.]: You are hereby summoned to appear in this court, on the day of , a. d. 18— at — o'clock, forenoon, upon trial of the case of A. S. against A. B. and others, being an appeal from the final decision of the commissioners of said county, in relation to the assessment of com- pensation and damages made to A. S., through whose lands a county [or, state, or, township, etc.'] road, petitioned for by said A. B. and others, has been laid out; and to take such action in the premises as to you may seem proper. Witness my signature and the seal of said court, this day of , A _ D . 18—. J. W., Probate Judge, [seal.] 118. Challenges, talesmen, and oath of jurors. — If any of the jurors fail to attend, or for good cause be excused from serving, or be set aside on account of a challenge, the panel must be filled with tales- men as in other cases. Each party is entitled to two peremptory challenges, and may make any number of challenges for cause. In respect to challenges, the appellants whose claims are on trial must be considered as one party, and the obligors as the other. The jury must be sworn in all the causes, whether the appeals are joint or sev- eral, at the same time, unless for good cause shown the court other- wise direct; and the oath of the jury must conform, as nearly as may be, to the oath prescribed for the jury in proceedings by cor- porations to appropriate property. 2 119. Form of oath of jury. You and each of you do solemnly swear [or, declare and affirm] that you will justly and impartially assess, according to the best of your judgment, the amount of compensation due in the cases which will be brought before you in the proceedings now pending, to [name the owner or owners] by reason of the appropriation of his [or, their] property for 1 See note to par. 39, above. 2 §4702. As to the oath referred to, see par. 60 of chapter 18. See note to par. 94. CHAP. 4, 120-123.] APPEALS IN ROAD CASES. 97 a county [or, township, or, state] road, as petitioned for by A. B. and others, irrespective of any benefit to be derived from said road ; and you do further swear [or, affirm] that you will, in assessing any damage that may accrue to said [naming owner or owners] by reason of the ap- propriation, other than the compensation, further ascertain how much less valuable the remaining portion of said property will be in conse- quence of such appropriation : this you do as you shall answer to God. [Or, this you do under the pains and penalties of perjury.] 120. Conduct of tlie trial— On motion of either party, or of any one of the appellants, the jury must, under the care of an officer of the court, and accompanied by such person or persons as the court may appoint to show them the premises, and before any tes- timony shall be given, except the plat and field notes of the road and the title papers of the claimants, if produced, which they must take with them, proceed to examine both the road as established or ordered, and the property of the several' claimants taken for the road, or alleged to be injured by it. 1 121, 122. Form of order as to jury. A. S. et al., | gtate of ohio county, Probate Court. A. B.'etal. J Entry as to jury. This day came the parties hereto [personally, or, by their attorneys, or, both, if so~]; thereupon the jurors summoned in this cause being called [slate who answered, who were summoned as talesmen, and loho finally composed the jury], who were duly impaneled and sworn, according to law. [// so, here say.] Thereupon, on motion of , the jury are ordered to proceed forthwith [or, state when], under charge of the sheriff [or other officer or deputy], to view and examine the premises of said [state whom] as to which compensation and damages are claimed, and so much of the [state what] road as is located through said premises, and to return to this court at [state when]. A. T. for plaintiffs, and B. U. for defendants, are appointed to show said premises and road to the jury. 123. Instructions to jury and others ivith them, and their return. — After the jury make such examination, they must return to court at the time appointed therefor. 1 But before their departure the court should caution them, as is customary, not to permit anybody to 1 \ 4703. 98 ROAD LAWS OF OHIO. [chap. 4, 124-129 talk to them, and to talk to nobody, concerning the matter under consideration, except so far as necessary with those appoiuted by court to accompany them ; and the officer and persons who go with them should receive instructions of a similar tenor, and such others as the court may deem advisable. A copy of the foregoing entry, or a writ of like purport, may be given to the officer in charge of the jury. 124. Trial, verdict, etc. — As soon as the jury shall have returned, or as soon as they shall have been sworn, if no view is applied for, the trial of the claims must be proceeded with in the same manner as in other trials in the court, and in the order the court may direct ; but any number or all of the claims may be tried at the same time, if the parties so agree, and any claimant may elect to have his claim tried separately. The jury must render a separate verdict upon each claim, which verdict must be entered upon the record of the court. * 125. A new trial can not be granted except for misconduct of the jury. 2 126. No appeal except for error. — No appeal, except by petition in error, as provided in paragraph 186, below, can be taken to any other court. 2 127-129. Form of verdict of jury. [Give caption : as in paragraph 121.] We, the jurors in this case [having inspected the premises of the said A. S.. and the road petitioned for by A. B., and others, as located through said premises, if so], and having heard the testimony offered by the parties, and the arguments of counsel, do award and determine: That A. S. be paid the sum of dollars as compensation for the land belonging to him which is appropriated to the said road, without deduction for benefits to any property of the said A. S., derived or to be derived by the location of said road.* And we do also find and determine that the premises of the said A. S., from which said appro- priation is taken, will be rendered less valuable by the location of said road, the sum of dollars {etc., if other matters are decided). \_Signe Exceptions to award of viewers. G. H. et al. \ The said A. S. excepts to the award of the viewers in this case, made in his behalf, for the reason that \_give reasons; for instance] said award has not been made by a constitutional jury of twelve men, and because the amount of compensation and damages assessed to him is far less than he should have been allowed. Wherefore he asks that said award may be set aside, and a new as- sessment may be made by a jury legally constituted. A. S. 142. Subsequent proceedings. — Such proceedings must then be had for a trial by jury, of his claim, and of any others thus presented, 1 §4706. 2 \ 4704. Such viewers are appointed by the probate court, as provided in par. 32 of this chapter, and their duties are defined in pars. 32-50 above. See specially par. 38 above. It seems that if the view there taken be not cor- rect, there is no reason for the provisions found in this subdivision. Why should the proceedings as to compensation and damages arising from the alteration of state road differ from those as to the location of such road? But they do. See subdivisions 4 and 5. CHAP. 4, 143-149.] APPEALS IN ROAD CASES. 101 as are provided in subdivision 3 of this chapter ; and the provisions of paragraphs 84 and 85, and of such other paragraphs as those two make necessary, are by law made applicable to this suhdivisiou. 1 See also subdivisions 7 and 8. Subdivison 5. Appeals from county commissioners' award of damages or compensa- tion ON ACCOUNT OF state road. 143. Notice of appeal; bond; transcript — An appeal from the final decision of the commissioners, on any application for damages or compensation sustained by the location of any state road, must be allowed to the probate court of the proper county, if notice of such appeal be given by the appellant during the same session of the commissioners at which such decision was made, and the appellant within ten days thereafter, enters into bond with good and sufficient surety, to be approved by the county auditor, for the payment of all costs and expenses arising from, or in consequence of, such ap- peal. The appellant must, within five days thereafter, deliver to the probate judge a transcript of the proceedings had before the commissioners. 2 See paragraphs 4 and 13 above. 144-146. Tlie form of notice of appeal may be as follows : To the board of county commissioners of county, Ohio: D. S. hereby gives notice of appeal from your final decision, made ( 18 — , as to his application for compensation claimed and for dam- ages sustained by him by reason of the location, through his premises, of the state road petitioned for by A. B. and others. , 18-. D - S- 147-149. Form of bond. [Follow the form in pars. 5-9 above to the * then add~] : decision of the county commissioners of said county, made at their session, , 18—, in relation to the application of said A. S. for compensation [or, damages, or, compensation and damages, as may />-•] on account of the location, over his premises, of a state road leading from to , and petitioned for by A. B. and others. Now, if the said A. S. shall pay all costs and expenses arising from, i \ 4704. 2 § 4627. See last part of note to par. 131 102 ROAD LAWS OF OHIO. [CHAP. 4, 150-156. or in consequence of, such appeal, then this obligation shall be void; otherwise, it will be and remain in full force and effect, 1 A. S., L. R., M. S. Bond and sureties approved this — day of , 18 — . W. C, County Auditor. 150. An entry of the filing of the bond should be made, as di- rected in paragraphs 10-12 above. 151. As to transcript, and form of, see paragraphs 16-23, and 85 and 98 above. 152. Who are plaintiffs, etc. — In the suit resulting from such ap- peal, the appellant must be made plaintiff, and the obligors men- tioned in the next paragraph must be made defendants. 2 An entry, similar to the one given in paragraphs 25-27, may be made in the journal of the court. 152. Summons to defendants, and service of — Upon receiving the transcript, the judge must immediately issue a summons against the obligors in the bond filed, as directed in paragraph 7 of chapter 1, which must be served and returned as other writs of like character. 3 154. Selection of jury, and trial. — Upon the return of service of summons upon defendants, the judge must cause a jury of twelve men to be selected and returned by the sheriff and clerk as provid- ed by law; and such proceedings and trial may be had before the jury, as provided in subdivision 3 of this chapter. 4 ! 55. As to forms and proceedings before verdict. — For all forms and all proceedings preceding the verdict of jury, and for such verdict, follow subdivision 3 above, making such slight modifications in the forms as necessary. These modifications will be few. 156. Entry of verdict, etc. — Upon the return of the verdict of the jury to the probate judge, he must enter it on record, with the firmer proceedings, and certify the decision to the county auditor. This verdict, or decision, so made and recorded, will be final, except as provided in paragraphs 80-82 of chapter l. 5 1 See note 2. page 2, as to witnesses, and seals to bond. - \ 4028. 3 §4628. As to summons, see §§5035-5056. "Obligors" means all per- sons who signed the bond. 4 y , 1628. See note to par. 04 above. 6§ 4628. CHAP. 4, 157-161.] APPEALS IN ROAD CASES. 103 157. Proceedings subsequent to verdict. — For all proceedings after rendering such certified copy of the verdict and proceeding in court to the county auditor, see paragraph 80, and helow it, of chapter 1. 158. Costs on such appeal. — In all cases of appeal from the final decision of the county commissioners, as provided in paragraph 143, above, the appellant must pay all costs that may accrue in conse- quence of said appeal, unless the award rendered by the jury in the probate court exceeds in amount the award rendered by the jury appointed by the county commissioners. 1 [See also subdivisions 7 and 8.] 159. Fees. — For services required by this subdivision, the officers and other persons are each entitled to the same fees as they are en- titled to by law for like services in other cases; the auditors to be paid out of the county treasury, and the judge and others entitled to fees, to be taxed in the bill of costs in the cause in court. 2 Subdivision 6. APPEAL FOR COMPENSATION ALLOWED BY TOWNSHIP TRUSTEES AS TO ROAD MATERIALS APPROPRIATED. 160. Owner of road materials condemned by trustees may appeal. — An appeal from the amount of the compensation allowed by township trustees for the payment of gravel or other material appropriated, as provided in paragraph 30 of chapter 27, for public use, must be allowed to the probate court of the county. This appeal must be entered with the probate court within five days after the filing of the bond mentioned in the next paragraph. 3 See also paragraph 4, above. 161. Bond, in such case. — The appellant must enter into bond to the state for the use of the township, in the sum of one hundred dollars, with one or more good and sufficient sureties, to the accept- ance of the township treasurer, within ten days from the date of the award of said trustees, conditioned for the payment of all costs arising from such appeal, if the compensation allowed be not in- creased by the proceedings had in the probate court. This bond must be filed with the township treasurer. 4 1 1 4629. 2 1 4632. 3 2 1484. * § 1484. Compare with par. 64, above. 104 ROAD LAWS OF OHIO. [CHAP. 4, 162-170. 162-167. Form of bond. Know all men by the presents, that we, A. S., C. D., and E. F., of count}', Ohio, are held and firmly bound unto the State of Ohio, for the use of township, in said county, in the sum of dollars, to the payment of which we do hereby jointly and severally bind our- selves, our heirs, executors, and administrators. Signed by us this day of , 18 — . Whereas the said A. S. appeals from the amount of compensation allowed him by the trustees of said township for [state what material] owned by him, and appropriated by said trustees for the improvement of the public roads [or, designate what road] within said township. Xow, if the said A. S. shall pay all costs arising from said appeal, if the compensation allowed him be not increased by the proceedings had in the probate court, then this obligation shall be void ; otherwise it shall remain in full force. A. S., C. D., E. F. Approved, , 18 — -, 1 L. M., Township Treasurer. 168. Proceedings. — The proceedings should be similar to those heretofore provided in subdivision 3, so far as applicable. 169. Wliat the court may order. — The court may order a view, as provided in cases of appeal from the decisions of the trustees in es- tablishing township roads, or make any other order that may be just and reasonable. 2 [See subdivisons 7 and 8.] Subdivision 7. PROBATE COURT'S RECORD OF PROCEEDINGS ON APPEAL, AND TRANSCRIPT THEREOF TO BOARD OF COUNTY COMMISSIONERS OK TOWNSHIP TRUS- TEES, AND PROCEEDINGS OF THESE BOARDS AND OF OTHER COUNTY AND TOWNSHIP OFFICERS THEREAFTER, AS TO SAME. 1 70. Court to make complete record, and send transcript of, and papers. — The probate judge must make a record of all proceedings had in the probate court under the provisions of this chapter, including the reports and plats of viewers, reviewers, and surveyors, and must at once, after the termination of the proceedings upon an appeal, trans- mit to the county auditor, if the appeal was from the county commis- sioners, or to the township clerk, if it was from township trustees, all original papers received from him, and also a transcript, from 1 See note 2, page 2. - \ 1484. See note 3 to par. 74, above. CHAP. 4, 171-174.] APPEALS IN ROAD CASES. 105 the record mentioned above, of the proceedings upon such appeal, 1 See also paragraph 80, above. For form of road record, see last part of chapter 8. As to form of transcript, see paragraphs 17-22. 171. When auditor to make record, and its effect. — If it appear by the transcript so transmitted to the county auditor that the court has approved the establishment, alteration, vacation, or change of a road, and that the compensation and damages, if assessed in or under the orders of the court, do not, in the aggregate, exceed the amount assessed, approved, and ordered to be paid out of the county treasury before the appeal, the auditor must forthwith record, in the proper book, the final decision of the court in the premises, with all reports, plats, field notes, or other matters appearing in the transcript necessary to a right understanding of the same, and note in said book the date of such recording ; and thenceforth the road will be established, vacated, altered, or changed, as the case may be. The auditor must then issue the necessary orders for the payment of the compensation and damages. 2 172. When commissioners may pay damages. — But if the damages so assessed exceed, in the aggregate, the amount ordered to be paid out of the county treasury, the auditor must lay the papers and transcript before the county commissioners, at their next session, who may thereupon establish such road, alteration, or change, and order the compensation and damages to be paid out of the county treasury, or refuse to establish the same unless the compensation and damages, or such portion thereof as they shall require, be paid, within such time as they may designate, by the petitioners. 3 173. For forms establishing, etc., road adaptable to this case, see paragraphs 72-84 of chapter 1, and paragraphs 108-118 of chapter 2. 174. When auditor shall issue order, and its effect. — If the appeal from the county commissioners was under subdivision 4, and the compensation and damages assessed in that court in favor of all the appellants do not, together with the compensation and damages awarded to claimants who did not appeal, exceed the amount which the commissioners had, before the appeal, ordered to be paid out of the county treasury, the auditor must issue the necessary orders for the payment of all said compensation and damages, and the road, 1 H707. 2 H"08. 3 2 4709. 106 EOAD LAWS OF OHIO. [CHAP. 170-182 or alteration, must be considered as established from the date of the final order in the probate court. 1 175. Proceedings of commissioners on transcript. — But if the assess- ments iu the probate court, with the compensation and damages awarded to claimants not appealing, exceed the amount so ordered to be paid out of the county treasury by the commissioners, the auditor must lay the papers and transcripts received from the pro- bate judge before the commissioners, at their next session, and they must act upon the same as in the case mentioned in paragraph 172 ; but the commissioners, if, in their opinion, a part only of a road will be of public utility, may record and establish such useful part, and reject the residue, if such division can be made without affect- ing the rights of any person entitled to compensation and damages. 2 See paragraph 173. 176. Proceedings of trustees on transcript.— -The township clerk, upon receiving a transcript from the probate judge, as aforesaid, must lay it before the township trustees, who must make an order in conformity with the decision of the probate court. 3 177. The provisions of paragraphs 172, 174, and 175 probably apply, in so far as suitable, to township clerks and trustees, also. 4 Subdivision 8. general provisions applicable to all subdivisions of this chapter. 178. WJien other viewers, etc., may be appointed. — When a viewer, reviewer, or surveyor, appointed by the court, is unable or fails to attend to the duty required of him, the court may substitute an- other in his stead. 5 179-182. Form of appointment. [Give caption, as the case may be, see preceding pages.'] B. N., heretofore appointed viewer [or, reviewer, etc.] in such mat- ter, having failed to attend, at the appointed time and place, to the duty required of him, F. L. is hereby appointed viewer [or, reviewer, etc.'] in- stead of said B. N. B. M\, Probate Judge. i g 4710. 2 §471l. »§4712. 4 See par, 74, above, and notes thereto. & ? 400.-,. CHAP. 4, 183-187.] APPEALS IN ROAD CASES. 107 183. This should be entered on the journal of the court, and F. L. may be notified of his appointment by giving him a certified copy of the order. 184. 'Oath of vieivers, etc.— Every viewer, reviewer, surveyor, chainman, or marker, appointed or selected under the provisions of this chapter must, before entering upon his duties, take an oath faithfully and impartially to discharge the duties of his appointment, which oath may be administered by any person authorized by para- graph 76 of chapter 2 to administer an oath, or by any other com- petent authority. 1 185. For form of oath, certificate of oath, etc., adaptable to all cases, see paragraphs 24-28 of chapter 1. 186. Decision of court reviewable on error. — The final decision of the probate court, made under the provisions of this chapter, may be reviewed, upon a petition in error, by the court of common pleas of the proper county, but can not be reversed for any defect in form if found to be substantially correct ; and upon a reversal, a court of common pleas may award a writ of procedendo, when deemed necessary. 2 187. Fees of officers and others. — For their services required by this chapter, the officers herein mentioned or referred to are entitled to 1 1 4696. 2 §4713. The code confers jurisdiction on the court of common pleas to review on error tlie anal orders of boards of county commissioners, in pro- ceeding under the " act for opening and regulating roads and highways.' Commissioners v. Junkins, 19 O. S 348. Where, in proceedings for a county road, there have been parties peti- tioners for a view and establishment of the road, and, after a report in favor thereof, there are other parties petitioning against it ; and, where, after the final order of the commissioners, either party brings a petition in error to review their proceedings, the other party is a necessary party to the peti- tion, and it is in error to reverse the orders of the commissioners unless such other party is made defendant. lb. See also notes to par. 35, chapter 2, and to par 1, chapter 4. A final judgment of a court of competent jurisdiction, rendered by con- sent of parties, will not be reversed on error. 1 0. S. 386; Jackson v. Jack- son, 16 O. S. 163. In the matter of an appeal from the decision of the county commissioners, it is error in the court of common pleas to render judgment for costs. But- man v. Fowler, 17 0. R. 101.] 108 ROAD LAWS OF OHIO. [CHAP. 4 the same fees as they are entitled to by law for like services in other cases ; and the court must direct what compensation the person or persons appointed to show premises to a jury shall receive, to be taxed in the cost bill. 1 See pars. 101 of chap. 1, and 269 of chap. 2. CHAP. 5, 1.] OPENING, REPAIR, ETC. 109 CHAPTER V. THE OPENING, REPAIR, AND MAINTENANCE GENERALLY, AND CERTAIN IMPROVING, OF STATE, COUNTY, AND TOWNSHIP ROADS, TAXATION THEREFOR, AND DUTIES OF SUPERVISORS AND OTHERS IN RELATION THERETO. INCLUDING — Subdivision 1 (Paragraphs 1-78). Supervisors and road work gen- erally, CONTAINING THOSE PROVISIONS OF LAW MOST FREQUENTLY AND WIDELY APPLICABLE THERETO. Subdivision 2 (Paragraphs 79-122). Certain provisions as to such ROADS AND ROAD WORK, BEING EITHER OF LESS FREQUENT OR LESS GENERAL APPLICATION THAN THE PROVISIONS OF SUBDIVISION 1, OR RELAT- ING MORE PARTICULARLY TO TOWNSHIP TRUSTEE OR OTHER OFFICERS THAN TO SUPERVISORS. Subdivision 3 (Paragraphs 123-151). General county and township TAXES FOR ROAD REPAIRS, AS CONNECTED CHIEFLY WITH THIS AND OTHER chapters; how certified TO township clerks, supervisors, and tax- payers; HOW WORKED OUT OR PAID, AND REPORT THEREOF; DISTRIBUTION OF SURPLUS. Subdivision 4 (Paragraphs 152-153). additional tax by township TRUSTEES FOR CUTTING DOWN HILLS, ETC. Subdivision 5 (Paragraphs 154-159). Extra road tax, by county AUDITOR FOR CONSTRUCTION, REPAIRING, ETC., ANY STATE, COUNTY, OR TURNPIKE ROAD, ON PETITION OF THE TAX-PAYERS WITHIN ONE MILE OF ROAD. Subdivision 6 (Paragraphs 160-184). How township trustees may AUTHORIZE CERTAIN UNIMPROVED STATE, COUNTY, OR TOWNSHIP ROADS TO BE IMPROVED BY PETITIONERS THEREFOR, UNDER SUPERVISOR'S INSTRUC- TIONS. Subdivision 7 (Paragraph 185). Miscellaneous provisions. Subdivision 1. Supervisors and road work generally, containing those provisions of law most frequently and widely applicable thereto. 1. Duties of supervisors as to opening roads. — Every supervisor must open, or cause to be opened, and also keep in repair, all public HO ROAD LAWS OF OHIO. [CHAP. 5 roads and highways which are laid out and established in his road district. 1 1 § 4715. As to establishment of road districts, see par. 79. As to roads on township lines, etc., see par. 91. A supervisor is, in this state, regarded as a ministerial officer, whose duties and authority are limited and prescribed by statute, and which, for the most part, are confined to his own particular district. His duties gen- erally are to open and keep in repair and unobstructed the public roads in his particular district not owned or operated under private charters or by incorporated companies. His powers and authority have always, in this state, been particularly prescribed by statute. Ai>d under these statutes, we understand that the courts of this state have always recognized the right of supervisors to a very liberal exercise of an honest discretion in the dis- charge of their official duties. It would be most unreasonable, under sucb statutory provisions, to hold a supervisor to a rigid exactitude in the use of the most appropriate means for the discharge of his duties. Grove v. Mike- sell, 13 0. S. 158. See also Beebe v. Scheidt, 13 O. S. 406, 416, 417, 418; also paragraph 5, below, and notes thereto; also last par. of note to par 159, chapter 2; see also pars. 106-126, and 207, chapter 2. "As to establishing, opening, strightenvng, vacating, etc., roads, supervisor's course. The lawprovide< how state, county, township, and other roads may be • laid out and established,' and also how they may be turned, widened, or narrowed, vacated, etc., and what proceedings must be had in such cases. These proceedings are numerous and long, and involve and require peti- tions, bonds, viewers, etc. But these are the affairs of those desiring the road or the changes mentioned, and with them the supervisor has nothing to do. After all these proceedings are had, and the county commissioners make the proper entries on their minutes, establishing or changing the road as above mentioned, and after the time required by law has passed, the county commissioners must issue their order to the township trustees, direct- ing the road to be opened. [See par. 107, 120-123, chapter 2.] "The township trustees of each township through which any part of such new road passes, or in which any such change is made, should receive from the county commissioners, through the county auditor, the order above mentioned, which should clearly describe, by plat, or otherwise, the exact location of the new road, or changes in the old one. The trustees, through the township clerk, should then order the supervisors of the proper road dis- tricts to open or change such road as directed, particularly and definitely de- scribing the line of the road to be opened or the change to be made. "The supervisor should do nothing at all toward opening or changing such roads, till after he has been officially notified, in writing, by the clerk, what to do. "Having received such notice, he should then notify the persons having control of the land over which such road extends, to remove the fences from CHAP. 5, 2.] OPENING, REPAIR, ETC. Ill 2. May take trees, gravel, stone, etc., from lands. — Supervisors may take trees, gravel, stone, etc., from certain lands near, the roads he the ground such road will occupy. He should do this chiefly to give them a chance to protect tlieir crops, etc., on and near the line of said road, es- pecially if it must be opened before such crops have ripened and been removed. •Should such persons unreasonably delay to comply with his notice, it is then his duty to proceed so to remove them himself, and to improve such road by removing the necessary trees, etc., by gradi'ng and otherwise work- ing said road as much as necessary or possible, having due regard to the claims and needs of other roads in his district. "The notice by the supervisor, mentioned above, may be a verbal one, or it may be written, in some such form as follows: " To C. D. : " You are hereby notified that a new public road has been duly estab- lished, which passes through my district and through your land, as follows [here describe the line of the road through C. D.'s hind']. l; You are requested and required to remove all fences and buildings on your land standing on the line of said road, before the day of , 1° — • A. B., Supervisor. "If the road is narrowed, the adjoining land-owner may set his fences out to the new line; and if the road is ordered to be widened, the supervisor may, after being duly notified thereof by the township clerk, cause the fences to be set back to the new line by the owner, and on such owner's fail- ure to do so, the supervisor may remove them as he would any other obstruc- tion, being careful not unnecessarily to damage or destroy the materials composing such fences. He is simply to remove, not to rebuild, the fences." Giauque's Manual for Road Supervisors, p. 7. Reform school is a special road district. — The reform school, with the lands thereto attached, is :l special road district, and the superintendent is vested with all the powers of a supervisor of roads for said district ; he may alter the public roads on said lands as necessary for their general plan and out- line; but no alteration can be made by which existing roads will be greatly lengthened, or their grade materially increased, or their general use to the public materially impaired; and all such alterations must be approved by the commissioners of county before they can be made. § 7t>4. Where, in an action for trespass upon lands, the defendant justifies that the acts complained of were done by him as supervisor in opening a public highway over the lands, the record of the proceedings of the county commis sioners, in regard to the road, is not incompetent evidence, because it term s the petitioners for the road " land-holders " instead of " freeholders," nor be- cause the viewers are not described as "disinterested freeholders" of the county, nor because it does not show that the plaintiff had notice of the time and place of the meeting of the viewers. Beebe v. Sheidt, 13 O. S. 406. It is not competent for the plaintiff in such cases to introduce parol evi- 112 ROAD LAWS OF OHIO. [CHAP. 5, 3-5 must work, for making, improving, or repairing such roads, 1 and must proceed in reference thereto as more fully stated in paragraphs 94-101, below. 3. May enter lands to make ditches, etc. — A supervisor may also en- ter upon any lands adjoining or lying near the road, and make such drains or ditches through the same as he may deem necessary for the benefit of the road, but he must do as little injury to such lands, and the improvements and timber thereon, as the nature of the case and the public good will permit ; the drains and ditches so made must be conducted to the nearest water-course, and must be kept open by the supervisor. 2 4. Such ditches must not be obstructed by owner; penalty. — Such ditches must not be obstructed by the owner or occupier of the lands, or any other person having the same in charge, under a pen- alty not exceeding ten dollars for each offense, which must be col- lected by the supervisor, and paid by him to the towship treasurer, and applied to the road fund of the township. 2 5. Must remove obstructions. — The supervisor of the district must also remove, or cause to be removed, all obstructions that may from time to time be found on the roads and highways mentioned in the precediug paragraph. 3 The law also provides that, at auy time during the year when any public highway is obstructed, he must forthwith cause the obstruction to be removed, for which pur- poses he must immediately order out such number of persons liable to do work or pay tax upon the public highways of his district as he may deem necessary ; if any person thus called out has per- formed his two days' labor upon the public highways, or paid his road tax, the supervisor must give him a certificate for the amount dence to show that such record was unauthorized by the commissioners, or that the road was not legally laid out, nor to show that the plaintiff had no notice or knowledge of the meeting of the viewers, or of the location of the road. lb. x g 4715. "When a supervisor, entering to cut timber for repairing a road, commits waste, he becomes a trespasser from the beginning. Palmer v. Stat.-, Wright, 364. The authority to cut timber to repair roads includes authority to cut for the purpose of repairing a bridge on a road. Nor is the power confined to the period between April 1st and October 12th, but is operative whenever the road, etc., is out repair. lb. 2 g 4716. 3 § 4715. CHAP. 5.1 OPENING, REPAIR, ETC. 113 of labor performed under such order, which may be applied on the labor or tux that may be due from such person the next year. 1 See i g 474i3- Where a highway, sixty feet in width, is established across a stream of water, and a bridge twelve feet wide is constructed along the cen- ter of such highway over the stream, and a proprietor of adjoining lands constructs fences from the outer limits of the road, along the hanks of the stream, to the bridge: Held, that such fences are, prima facie, at least, ob- structions of the highway, and as such it is the duty of the supervisor of the proper district, on due notice, and doing no unnecessary damage, to remove them ; and for so doing, an action for trespass will not lie against him. Baird v. Clark, 12 O. 87. Where there has been a continued use of a highway, although its width had been encroached upon by the adjacent owner for eighteen years, the right is not lost. The supervisor may open such road to its full width. Fox v. Bart, 11 O. 414. L. being the owner of lands adjoining a public highway, regularly laid out and used by the public, extended his fence so as to inclose a portion of the ground within the surveyed lines of the highway, which portion was not then used nor required for the public travel, and kept up said fence with- out any objection for upward of twenty-one years : Held, that such partial encroachment upon the side of a surveyed and traveled highway was not necessarily adverse to the public, nor inconsistent with its easement, and therefore constituted no bar to its reclamation by the supervisor, when re- quired for the public travel. Lane v. Kennedy, 13 O. S. 42. No penalty is given for obstructing a road authorized by law, nor for per- mitting the obstruction to remain, unless it is to the hinderance or inconven- ience of travelers, and therefore the defendant may show that travelers were not accustomed to pass the state road obstructed by him, but that the travel was 'in a turnpike road, shorter and more convenient. Ingersoll v. Herider, 12 O. 527. The right of transit in the use of the public highways is subject to such incidental, temporary, or partial obstructions as manifest necessity requires; and among these are the temporary impediments necessarily occasioned in the building and repair of houses on lots fronting upon the streets of a city, and in the construction of sewers, drains, etc. These are not invasions, but qualifications of the right of transit on the public highway; and the limita- tion on them is, that they must not be unnecessarily and unreasonably inter- posed. Clark v. Fry, 8 O. S. 358. As fuel is necessary, a man may throw wood into the street for the pur- pose of having it carried into his house, and it may lie there a reasonable time. lb. Where a road has been laid out in the manner prescribed by law, opened 114 ROAD LAWS OF OHIO. [CHAP. 5. also paragraph 10 of chapter 14, which provides " against obstruc- tions by any person, corporation," etc. See also paragraph 11 of chapter 14 ; paragraph 10 of chapter 21 ; and also paragraph 71 of chapter 27. and used for many years, it can not be allowed that it shall be suddenly closed, by any individual through whose land it passes, on the hypothesis that the road used does not exactly follow the courses and distances of the recorded survey. Nor can it be required, after the lapse of many years, that to sustain a public road, every preliminary step necessary to be taken to es- tablish it, must be proven by existing papers or records. Arnold v. Flat- tery, 5 O. 79. Before an action for obstructing a road can be maintained, it must be recorded, opened, and the statute followed. Roller v. Kirby (Ham. Com. Pleas), 1 W. L. J. 550. A supervisor can not begin and conduct, in his own name, a suit for an in- junction to prevent the obstruction of a public road. Putnam v. Valentine, 5U. 187. Where, in an action before a justice (for obstructing the road), the plain- tiff was described as " A. B., supervisor of road district No. 6, Stonecreek township, Clermont county," on appeal, the supervisor for the time being may file his petition as " supervisor of road district No. 6," etc. Hill v. Su- pervisor, 10 O. S. 621. Where private lands are erroneously included in a road by review and survey, the supervisor is liable in trespass for entering upon the land and digging up the soil; and he is not protected by the record of the survey and the declaration of the statute that the road as surveyed shall be considered a public highway. Beckwith v. Beckwith, 22 O. S. 180. A supervisor is not liable for damages to an individual for injuries that in- dividual has sustained because of the neglect of the supervisor to keep a bridge within his district in repair. The supervisor is liable only for the penalty prescribed by law. Duniap v. Knapp, 14 O. S. 64. (As to what this penalty is, see paragraph 77 of this chapter.) See also note to paragraph 1, above, and note to paragraph 54, below. A person owning lands through which a public road passes, who gives his assent to the cutting down of a tree standing thereon within a few feet of the traveled track, is guilty of obstructing the highway if the tree falls within the road and is suffered to remain therein to the hindrance or incon- venience of travelers. Nagle v. Brown, 37 O. S. 7. A condition attached to such assent, that the tree should not be felled in- to the road, does not relieve the owner from liability. lb. The statute (S. & S. 669, § 31), giving exclusive original jurisdiction to justices of the peace for obstructing highways, applies only to actions by CHAP. - r ), 6-11.] OPENING, REPAIR, ETC. 115 6. What roads and highways are meant.— There are, however, cer- tain " public roads and highways" to which the five preceding para- graphs do not apply, and others to which they apply only partially. These are : 7. First. Toll roads, owned by incorporated companies, and for traveling over which pay is collected at toll-gates, or by other mean-;. With these the supervisor has nothing whatever to do. 1 8. Second. Streets and alleys in incorporated cities, villages, and hamlets, these being under the exclusive control of the munici- pal corporations in which they are situate. 2 But roads in unin- corporated villages or hamlets must be worked and cared for by the supervisor just as the same roads outside must be. 9. Third. Certain township roads, which must be opened and repaired by those persons petitioning for them. See paragraph 73 of chapter 3. 10. Fourth. All improved roads treated of in chapters 6, 7, 8, and 9, and whose repair is specially provided for in chapter 10. The supervisor is concerned with these roads only by the fact that some of the road workers, road taxes, and road implements are diverted from his control to the control of the pike superintendents there mentioned. See paragraphs 1, 30, 31, 68, 72, of chapter 10, and paragraphs 111-113 of chapter 7. township trustees for penalty, and not to an action for damages by one in- jured by the defendant's felling a tree across the highway. Such action may originate in the common pleas. Nagle v. Brown, 2 Bull. 98. See also notes to par. 10, chapter 21. 1 A supervisor of highways has no jurisdiction or power over turnpikes or plank-roads constructed by incorporated companies, and placed by law under their control: nor could he justify interference with such roads, al- though it should be directed by the township trustees. He is bound to know what roads belong to the public and what to such trustees. Plank-road Co. v. Cane, 2 O. S. 419. See also first par. of note 1, par. 1, above. 2 The council shall have the care, supervision, and control of all public highways, streets, avenues, alleys, sidewalks, public grounds, and bridges within the corporation, and shall cause the same to be kept open and in re- pair and free from nuisance. \ 2640. See also §g 1651, 1652. When any part of a road district is annexed to a city, that part of the road lying in the annexed territory passes out of the jurisdiction of the su- pervisor and into the control of the corporation. Steubenville v. King, 23 O. S. 610. 116 ROAD LAWS OF OHIO. [CHAP. 5, 12-15. 11. Fifth. Roads which have been laid out, but which have be- come vacant by non-user. 1 See paragraph 108 of chapter 1, and paragraph 264 of chapter 2. 12. Sixth. Railroads and canals are, in some sense, also public highways. But the supervisor's duties as to these are few and merely incidental. See paragraph 10 of chapter 14. 13. What roads supervisor must ivork. — Supervisors must not per- form, nor cause to be performed, any labor on any road not regular- ly laid out and established by law ; 2 and an examination of the foregoing paragraphs will show that, of these, supervisors have to do only with state, county, and some township roads ; and their duties as to these roads are generally confined to keeping them in re- pair and free from obstructions. 14. Who are required to work tlie roads. — Except as specified be- low, all male persons between the ages of twenty-one and fifty-five, able to perform, or to cause to be performed, the labor required in paragraphs 16-23 of this chapter, must do two days' labor on the highways, under the direction of the supervisor of the road district in which he resides. 3 As to persons living in cities and villages, see subdivision 3 of chapter 16, and paragraph 8 of this chapter. 15. Who exempt. — The following are exempt from working on the roads : Persons permanently disabled in the military service of the United States, pensioners of the United States government, acting and contributing members of companies, troops, and batteries of the " Ohio National Guard," during their membership, and any person who is a member of any fire engine, hook and ladder, hose, or other 1 The public right to a highway may be lost by non-user. The law would raise a presumption of an extinguishment of the right, when the road has been abandoned for a long period, but where there has been a continued use of a highway, and the width has been encroached upon by the adjacent owner for eighteen years, the right is not lost, and the supervisor may open such road to its full width. Fox v. Hart, 110. 414. The statute providing that county roads shall be vacated by non-user for Reven years applies only to roads that have been authorized, but never opened. Peck v. Clark, 19 (). 367. The limitation prescribed in that section of law applies to roads author- ized but never opened, and not to roads which have been opened and par- tially obstructed by a land-holder fencing in a portion of the same. McClel- land v. Miller, 28 O. S. 488. 2 §4743. 3 §4717. CHAP. 5, 16-21.] OPENING, REPAIR, ETC. 117 company for the extinguishment of fire or protection of property at fires, under the control of the corporate authorities of any munici- pal corporation, and who receives no pay for such service, during the time he may continue an acting member of such company. 1 16. Supervisors to order out laborers. — Every supervisor must order out every person not exempt, resident in his district, between the first day of April and the first day of July, annually, and direct him to do and perform the work aforesaid on the public roads within the district; the order must be given to each person at least two days before the day named for the performance of the labor, either per- sonally or by written notice left at his usual place of abode. 2 17-19. Form of notice. Eoad district No. , township, county, 0., , 18 — . To E L : You are hereby notified to appear on the and days of , 18 — , at seven o'clock forenoon, at [here state where the workis to be done], to perform, under my directions, the two days' labor required of you by law, for the year 18 — . You will bring with you the following im- plements : \_name them ; and, if required, add one wagon and team of horses, etc.] , Supervisor. [See par. 22 below.] 20. Penalty for not obeying. — If any person so notified, who is liable to perform such labor, refuse or neglect to attend, by himself or substitute, to the acceptance of the supervisor, or having at- tended, refuse to obey the directions of the supervisor, or spend the time in idleness or inattention to the duties assigned him, he is liable to forfeit and pay the sum of one dollar for every such offense, and is further liable, in all cases of non-attendance, to the amount allowed for two days' work, to be recovered by action be- fore a justice of the peace of the proper township, at the suit of the supervisor within whose district he resides. 3 1 §4717. 2 §4721. 3 §4721. A supervisor of a road district, in suing a resident for the amount of work he should have performed on the roads, must state defendant's age so far as to show liability to do such work. Since the only right to sue is that given b} T the statute, this averment is jurisdictional, and overruling a demurrer to its omission is error. Lanter v. Lathrop, 15 Rec. 569. 118 ROAD LAWS OF OHIO. [CHAP. 5, 12-26 21. How penalty money applied. — The money so collected must be applied, by the supervisor, to the improvement of the roads in his district, and accounted for by him at the auuual settlement with the trustees of his township. 1 22 After notice, when and where laborer to appear. — Any person duly ordered out to work on the roads, must, by himself or substi- tute, appear at the place appointed by the supervisor, at seven o'clock in the forenoon, with such necessary tools and implements as the supervisor may direct ; and the supervisor may, if necessary for the improvement of the road, order a person owning the same to furnish a team of horses, mules, or oxen, and wagon, cart, plow, or scraper, to be employed and used on the roads under the direction of the supervisor. 2 Such teams, etc., must be allowed for. See par. 53. 23. Commutation of road labor. — Any person, having been duly warned to do his two days' labor, as provided in paragraph 16, this chapter, may, within three days after such warning is given him, pay to the supervisor in whose district he resides the sum of three dollars, which money must be received in lieu of the two days' labor, and be applied by the supervisor, to the improvement of the roads in his district, and accounted for as provided in para- graphs 56 and 63, of this chapter. 3 24, 25. Form of receipt. Road district No. •, township, county, O., , 18 — . I have received from , the sum of three dollars, in lieu of his two days' road work for the year 18 — , in said road district. Supervisor. 26. Neglect of supervisor does not release. — ~No person will be re- leased from performance of labor on the public highway by reason of the neglect of any supervisor to order him out on or before the first day of July. 4 27. Trustees may order work to be deferred, as more fully provided for in paragraphs 83-87 below. 1 \ 4721. See note 3, preceding page. 2 §4724. For form of order, see par. 19, above. 3 § 4718. * § 4722. See note to par. 144. CHAP. •"), 27-34.] OPENING, REPAIR, ETC. 119 28. Suck labor, etc., on improved roads. — The labor or commuta- tion mentioned in paragraphs 14-27 above, must, in certain cases, be done on improved roads, under the officers thereof. See para- graphs 111-113 of chapter 7; paragraphs 30-32, 68, 72 of chap- ter 10. 29. When laborer removes from his district. If a person remove from one district to another, between the first day of April and the first day of November, who has, before such removal, performed the whole or any part of the required labor, or in any other way has paid the whole or any part of the three dollars mentioned in paragraph 23, instead of such labor, and produce a certificate of the same from the supervisor of the proper district, such certificate must be accepted as a complete discharge for the amount therein specified ; but if such person fail to produce such a certificate, he must be required to perform two days' labor, or such part thereof as he has not performed under the directions of the supervisor. 1 30. Persons subject to perform labor on the roads, who have per- formed all or a part of it, and who intend to, or have so removed, should apply to the supervisor under whom they performed such labor, for a certificate to that effect, which certificate the supervisor must furnish. It may be, in form as follows : 31-32. Form of certificate. Road district No. , township, county, 0., , 18 — . I hereby certify that R. L. has performed, in said district, the two days' labor [or, one of the two days' labor, or, has paid me three dollars in place of the two days' labor, or otherwise, according to the facts], on the public roads, required of him by law, for the year 18 — . A. B., Supervisor. 33. Residence, hoio determined. — For road purposes, the residence of any person who has a family must be held to be where his family resides, and the residence of any other person must be held to be where he boards, in any road district. 2 34. Certain persons required to plant willows. — All persons subject to perform labor on public highways, whose lands lie on or are bounded by the Ohio river, are required to perform one day's labor 1 24723. 2 g4725. 120 ROAD LAWS OF OHIO. [CHAP. 5, 35-36 each year, between the mouths of March and June, in planting wil- lows in such a manner as to afford protection to the banks of said stream during floods, high waters, and at other times. 1 35. Such labor in lieu of road labor. — The supervisor of the district in which such labor is performed must inspect it ; and if he deem it sufficient in extent, and performed in such a manner as to fulfill the requirements and intent of the last paragraph, he must give the proper receipt for the same ; and this one day's w 7 illow planting must be counted and allowed as one of the two days' labor required on the roads. 2 36. Plows and scrapers. — The township trustees are authorized to furnish plows and scrapers for the use of the several road districts within their township, to be paid for out of any money in the town- ship treasury not otherwise appropriated, and if there be not enough of such money in the treasury, the trustees may apply to such pur- chase any labor or road tax for road purposes due within the town- ship. They must take a receipt from each supervisor for such im- plements as they deliver to him, showing the number, kind, and condition thereof; and such supervisor will be liable for any injury or damage that may result to such implements, or any of them, by the improper use thereof, or by unnecessary exposure to the weather during the time they may be in his possession, to be recovered in an action in the name of the trustees. On the first Monday in March, annually, he must return these implements to the trustees. 3 37-40. Form of supervisor's receipt. NO. AND NAMES OF ARTICLES. 1 Road plow. 1 Scraper I Scraper 10 Shovels Etc. CONDITION. Nearly new. New. Much worn. Worn. Received the articles above mentioned from the township trustees, this day of , IS — . A. B., Supervisor. x § 471'.». 2 § 4720. The form of receipt is similar to that given in paragraphs 31, 32. 3 H 14G0, 4735. CHAP. 5, 41-44.] OPENING, REPAIR, ETC. 121 41. Road beds to be leveled off.— Every supervisor must cause to be graded and leveled off, the earth and gravel that may be scraped, shoveled, or hauled into any public road under his direction or charge, at the time that such work is performed ; and for any neglect or refusal, on the part of such supervisor, to cause such leveling or grading in a reasonable degree, he will forfeit not less than one dollar nor more than five dollars, to be paid into the town- ship road fund, to be recovered by an action in the name of the township, before a justice of the peace within the township where such supervisor resides. The trustees of the township, after hav- ing been notified by any resident freeholder of the township of such neglect or refusal, must, by one of their number, examine the work, and if he find that it has not been performed, in a reasonable de- gree, according to the provisions of this section, he must prosecute such supervisor as provided herein. 1 42. Duties and penalties of road supervisors as to animals running a l forge— It J s the duty of all road supervisors, upon view or infor- mation, to cause all swine found ruuning at large upon roads within their respective districts to be impounded, and such further pro- ceedings had as are required and pointed out in the chapter of laws relating to estrays. If any such road supervisor fails or refuses to perform such duty, he is liable to be fined not less than two nor more than five dollars for each offense, to be collected in a suit brought in the name of the State of Ohio, on complaint of any per- son feeling aggrieved, before a justice of the peace, or other court having jurisdiction where the offense is committed ; and the trustees of the township are authorized and required to retain, from any sum that may be due and unpaid to such supervisor for services rendered in his official capacity, any unpaid costs or fines so arising. 2 43. Supervisor's duties as to hedges on roadsides. — See subdivision 8, chapter 27. 44. Supervisor must cut bushes, briers, etc. — Supervisors must cut down, or cause to be cut down, and destroy all weeds, burs, bushes, and briers growing within any county or township highway, to be done within the months of July and August of each year, and also within the months of September and October, whenever a repeti- !§4729. 2 4203, as amended, 77 O. L. p. 318, § 4204. See chapter 20 122 ROAD LAWS OF OHIO. [chap. 5, 45-53 tion of the work becomes necessary the more effectually to exter- minate them. 1 45. Land-muner may cut them, and belaid how. — For that purpose such supervisor may allow any laud-owner a reasonable compensa- tion for destroying such weeds, burs, bushes, and briers on the pub- lic highway on which such land-owner's land abuts. 1 46. Such compensation must be fixed by such supervisor before such labor is performed, and must be credited upon said land- owner's road tax for that year. 1 47. Supervisor to remove drift against bridges and from ditches. — The supervisor of each road district must remove, or cause to be removed, all timber or drift lodged against bridges, except toll bridges or bridges upon toll roads, and all timber, drift and sedi- ment lodged in and obstructing the free passage of water in ditches constructed for the draining and protection of such roads adjoining and upon the line of public roads in his district. 2 48. Compensation for. — The supervisor is entitled to receive the same compensation for such work or duties performed as Is prescrib- ed by law for other road work. 3 49. Penalty for neglect. — In case any supervisor fails or neglects to comply with the provisions of this act, he shall be held liable to a fine of not less than five and not more than twenty-five dollars. 3 50. Foot-bridges may be built. — The supervisor, when authorized by the trustees, may construct, on either side of any public road in his district, a public foot-walk, sidewalk, or foot-bridge over streams of water, of such material and at such expense as the trustees shall prescribe, which must not in any manner obstruct the public high- way or any private entrance. 4 51. The trustees may construct such bridges by contract with the lowest responsible bidder. 4 52. How paid for. — All such foot-bridge improvements must be paid for out of the township road funds. 4 53. How road tax worked out or paid, etc. — Any person charged witli a road tax may discharge it by labor on the public highways, !§ 4730, as amended, 81 O. L. 22. '-' \ 1731, as amended, 81 O. L. 132. For similar provisions as to pike su- perintendents, see par. 125 of chapter 10. \ 4731. as amended, 81 (). L. 132. 4 § 4733, as amended, 78 O. L. 84. CHAP. 5, 54-56.] OPENING, REPAIR, ETC. 123 within the proper time, at the rate of one dollar and fifty cents per day and a ratable allowance per day for any team and implements furnished by any person, under the direction of the supervisor of the proper district. 1 For further provisions as to such labor, see par- agraphs 126, 144-149, 157-159, 168-183, below, and paragraph 28 above. 54. Supervisors of roads must collect fines and penalties. — Supervi- sors, within their respective districts, must collect, by suit or other- wise, all fines, forfeitures, and penalties arising and accruing under the provisions of this chapter, unless the collection thereof is other- wise herein provided for ; and they must, before their settlement with the township trustees, prosecute to final judgment all persons neglecting or refusing to comply with the provisions ot this chap- ter, from whom such fine, forfeiture, or penalty, in the opinion of the supervisor, can be collected by execution; and the judgments, if not paid, togetler with the costs thereon, will remain and be in force against the judgment debtor, as other judgments at law. And the costs incurred by said supervisor in any suit brought under this chapter, when not collected from the defendant, must be paid by the trustees of the township out of the township fund. 2 55. Supervisors may sue out executions on unpaid judgments. — Any supervisor may sue out executions on any judgments that remain unpaid within his district, at any time when, in his opinion, the same can be collected, and the money so received and collected must be expended as provided in the next paragraph. 3 56. Must expend money, how, aud account therefor, when. — Supervi- !§ 2830, as amended, 77 O. L. 184. 2 1 4726, as amended, 79 O. L. 138. He can not be held personally liable for the payment of costs in such cases. See Bittle v. Hay, 5 0. 269. An action for obstructing a highway should be brought not in the name of the supervisor (individually), but the plaintiff should be supervisor of road district No. , in township , of county. Hill v. Supervi- sor, 10 O. S. 622. Where, in an action before a justice of the peace, the plaintiff was de- scribed as A. B., supervisor of road district No. 6, Stonecreek, Clermont county, on appeal, the supervisor for the time being may file his petition as "The Supervisor of Koad District No. 6," etc. lb. See note to par. 20; also, last part of notes to par. 5. 3 §4728. See pars. 60-62. 124 ROAD LAWS OF OHIO. [chap. 5, 57-59 sors must expend all money by them collected, for the benefit of the roads and highways in their respective districts, and give an account to the township trustees of the way in which such money was expended at the annual settlement. 1 57. Township trustees must settle supervisor's accounts, when. — At the annual March meeting of the township trustees, they must settle the accounts of the supervisors, and for this purpose the supervi- sors must attend that meeting. 2 58. Supervisor must report and settle what, etc., at March meeting. — At the annual settlement, the supervisors must also return a full and true list and statement of the names of all persons within their respective districts who have been ordered out to perform the two days' labor, as required herein, and of those who have refused or neglected to perform the same; and all fines and forfeitures sued for and recovered under the provisions of this chapter must be paid by the justice of the peace or constable collecting the same, on de- mand, to the supervisor of the road district wherein the fine or for- feiture accrued ; and supervisors must also render an account to the trustees, at the annual settlement, of all money that remains in their hands at the time of settlement, and all judgments that remain un- paid, and the name of the judgment debtor, and the justice before whom such judgments were obtained, with the amount thereof; and the trustees must make such order as to the prosecution of suits by the supervisors of the proper districts, against such delinquents, as in the judgment of the trustees the interest of the township may require. 3 59. The supervisor should arrange his report under the different heads required by law. The following forms should be substan- tially followed, ommittiug such parts, if any, as do not apply to his case. 1 \ 4727. See par. 63. » g 1458. - 3 H727. CHAP. 5, 60-63.] OPENING, REPAIR, ETC. 125 60. Form of supervisor's report and settlement [First]— List of persons ordered out to perform tivo days' labor, show- ing who worked, ivho paid, who delinquent, who was sued, etc. [See paragraphs 14-23, and 58, above.] Names of persons. ra d o d 3 SdS p. Amount paid on judgment, fines, etc. | Remarks. CD. E. F. G. H. J. K. L. M. N. 0. N. M. L. D. Etc. '2 1 1 2 1 1 2 2 $3 00 1 50 $3 00 Worthless; no use to sue. Sued ; he put in sta.y . See next list. Received amount of judgment from - Planted willows one day. Removed from district. Gave him Etc. , J. P. receipt. Total cash. ■ $4 50 1 $3 00 61. [Second]— List of unpaid judgments, showing names of judgment debtors, fines, penalties, etc., unpaid, who tried case, etc. [Omit when not needed. But see paragraphs 23, 54, 55, and 58.] Names of judgment Judgment for two days' labor. Fines, penalties, etc. Name of J. P. who tried the case. debtors. Debt. Costs. Total. Fine. Costs. Total. J. N. R. S. S. T. Etc. $3 00 3 00 $2 70 3 00 $5 70 6 00 $1 00 2 00 $4 10 2 30 $5 10 4 30 F. S. F. S. 62. [Third]— Statement of moneys recived by me, as supervisor. Amount received from C. D., late supervisor [see paragraph 75] $10 25 Total cash road tax collected, as shown by "Abstract of Road Tax" returned to clerk on , 18— [see paragraph 148]... 89 59 Amount of road tax received from township trustees 25 00 Total in lieu of two days' labor, as shown by " First" hereof. „ 4 50 Total judgments, fines, etc., collected, as shown by "First" , J „ ° 3 00 hereof Etc, etc Total receipts $ 132 25 126 ROAD LAWS OF OHIO. [char 5, 63-71 63. [Fourth']— Statement of moneys expended by me as supervisor. [Give the items of all moneys expended. The supervisor should have taken a receipt for every cent expended. These receipts should be numbered in the order of their dates, and used, in this settlement, as the supervisor's vouchers for the truth of his statements as to ex- pended money. No. of Voucher. 64] June 2, 18— . Paid to A B., for five days' work done. .. . June 7, IS—. Paid to C. D., four days' work of self and team Etc Etc $7 50 10 00 Total expenditures 65]. Total received $132 25 Total expended 128 75 Balance on hand $3 50 66-70. \_Fifth~] — Statement of my personal account. I was employed in the discharge of my official duties, as folows : Notifying persons to appear and labor — days. Superintending labor — Attending suits — Etc., etc — Total (say) 28 days. Deduct two days for self. 2 " Remaining 26 days Due me, at $1.50 per day, $39. For which I ask an appropriation. I certify the foregoing to be a correct report of my proceedings, and a true statement of my receipts and expenditures, during my term of office as supervisor since my election in April last. A. B., Supervisor. 71. The supervisor should then get a receipt from the trustees for the plows, scrapers, etc. , which he returns to them. This receipt may be in form like the one given in paragraphs 37-40 of this chapter, except that it should end with these words : CHAP. 5, 72-78.] OPENING, REPAIR, ETC. 127 72-4. Received the articles above mentioned from A. B., supervisor of road district No. , this day of , 1 8- J. C, C. S., 0. P., Township Trustees. 75 Supervisor to pay to his successor. —All money that may remain in the hands of a supervisor at the time of the annual settlement with the township trustees, must be paid to his successor in office as soon as such successor is elected and qualified, and a receipt taken therefor; and he must deposit the receipt with the township clerk " 76.' Vacancies in office of supervisor, how filled— When a vacancy occurs in the office of supervisor, by death, resignation, or other- wise the trustees of the township must appoint some suitable per- son to fill the vacancy, who must, before entering upon the duties of his office, take an oath to faithfully and impartially discharge the duties of his office, and who will be under the same restrictions and penalties as though he had been duly elected and qualified. 77 Penalties against supervisors.— A supervisor who neglects or refuses to perform the several duties enjoined on him by tins chap- ter or who, under any pretense whatever, gives or signs any re- ceipt or certificate, purporting to be a receipt or certificate for labor or work performed, or money paid, unless the labor shall have been performed or money paid before the giving fir signing of such re- ceipt or certificate, forfeits, for every such offense, not less than five dollars nor more than fifty dollars, to be recovered in an action before a justice of the peace within the township where he resides ; and the trustees of the township must prosecute all offenses against the pro- visions of this paragraph ; but if a supervisor conceives himself ag- grieved by the judgment of such justice, he may, on giving suffi- cient security for the payment of costs, appeal to the court of com- mon pleas, which must make such order therein as to it may appear just and reasonable. 3 . 78. Compensation of supervisor.— Every supervisor must be paid for his services, not more than one dollar and fifty cents per day, for the time he is actually employed on the roads ; but no supervi- sor can be allowed, in anyone year, more than twelve dollars, in addition to th e renumeration for his two days' labor on the roads, ig 4728 . "§4741. See alsoj 1451. 3 1 4742. See also par. 19 chap. 21. 128 ROAD LAWS OF OHIO. [chap. 5, 79-82. when the number of persons in his district, liable to work on the roads, does not exceed twenty-five ; not more than sixteen dollars, when the number so liable is more than twenty-five and less than thirty-five; not more than twenty five dollars, when the number so liable is not less than thirty-five nor more than fifty; aud not more than thirty-five dollars, when the number so liable exceeds fifty ; but a supervisor that is required, by any law of the state, to repair a turnpike road, or any part thereof, must be allowed not exceeding eight per cent for the amount of the labor performed under his di- rection as supervisor, repairing such turnpike or working out the road tax in his district ; but in no case shall he receive more than one dollar and fifty cents per day. 1 Subdivision 2. Certain* provisions as to roads and road work, being either of less general or of less frequent application than the provisions of subdivision 1, or applying more particularly to township trus- tees, or other officers, than to supervisors. 79. Township trustees must divide township into road districts, etc. — On the first Monday of March of each year, the township trustees must, 1st, divide their township into road districts, when not already so divided, or alter th*e existing districts as they may deem proper ; 2d, have a description of such districts, as so made or altered, en- tered in the proper township record ; 3rd, give notice of the num- ber of supervisors to be chosen in the township. They must also, at that meeting, settle with the supervisors, and cause due no- tice of the time and place for the election of supervisors to be given. 2 80-82. Form of order dividing township into road districts. Ordered, that the township be divided into road districts for the cur- rent year, as follows: 1 L533. 2 1\ 1 157, 1503, 1445, 1446, 1458. As to settlement, see pars. 57-75, above. This 8 per cent is additional to the $12, $10, $25, etc., provided the total compensation be not thus made to exceed $1.50 per day for the time he was a ilually employed on the roads. If the trustees fail to allow the full amount of compensation to which he is entitled, they can correct the error. Opinion of Lawrence, Atty.-Gen. (1884). CHAP. 5, 83-88.] OPENING, REPAIR, ETC. 129 District No. 1 shall comprise all the roads and persons contained within the following boundaries {give boundaries} : District No. 2, etc. [Should no alterations be made in the districts as they previously existed, it ma,, be sufficient to say} : Ordered, that the road districts within this township, as they were established for the year [the previous year], shall remain without alteration for and during the year [the current year}. 83. Trustees may order road work to be deferred. — If tiie trustees of any township, or any two of them, within three days after the elec- tion and qualification of any supervisor within their township, di- rect him in writing to defer any portion of the work to a date not later than the first of November, then the supervisor must be gov- erned by the directions so given as to the time the labor shall be performed. 1 84. Form of entry of trustees deferring road work. Ordered, that labor upon the roads and highways within this town- ship [or, specify what districts] be completed on or before the [not later than the first day of November]. 85-87. Form of order to supervisor. Clerk's office, township, county, Ohio, , 18—. To , supervisor of road district No. : You are ordered to complete all labor on the roads in your district not later than of this year. . [Signatures of Township Irustees.] 88. Canada thistles, wild carrots, etc., must be destroyed.— The trus- tees of any township, when notified, in writing, that any Canada thistles, teasels, or wild carrots are about to go to seed on any land within their township, must cause them to be destroyed in time to prevent the seed from spreading, and make return, in writing, to the board of county commissioners of their county, with their bill of expenses and charges therefor. This bill, having first been audited and allowed by the board, must be paid from the county fund, at the rate of compensation allowed by law to trustees for ordinary services, and the amount so paid must be entered upon the duplicate against the land upon which the thistles, teasels, or wild carrots were destroyed, and collected the same as other taxes, and returned 1 g 4722. 9 130 ROAD LAWS OF OHIO. [CHAP. 5 to the county fund. But the owner, lessee, or agent of any land upon which Canada thistles, teasels, or wild carrots are ahout going to seed, must be first notified, in writing, by some person interested, at least five days previous to the cutting thereof by the trustees. 1 !§ 4732. As amended, 81 O. L. 17. See as to same matter, par. 7 of chapter 21. In streets, etc.— On Feb. 26, 1884, \ 47Z2a was also passed [see 81 O. L. 27] in substance as follows: The mayor of cities of the third grade of the first class, or upon his negelct or refusal, the common council, must cause notice to be published for two weeks in the corporation paper, in any year after the first day of June, warning the owners of lots and lands within such city to cause all Canada thistles to be destroyed before the time such thistles will seed. The council must furnish the street commissioner the necessary funds, and said street commissioner must, so soon thereafter as any Canada thistles are found growing in such city, and have attained full bloom, enter upon the lots and lands where such thistles are growing, and cut them close to the ground, or otherwise destroy them, so as to prevent such thistles from going to seed. He must return, in writing, to the council, with his bill of expenses and charges therefor, on each lot or parcel of land on which he has cut or destroyed such thistles, whereupon said council must, after approving it, cause such expenses and charges for cutting or destroying such thistles, together with one dollar ($1.00) additional on each lot or parcel of land containing less than one acre, and with three dollars ($8.00) additional on each lot or parcel of land con- taining one acre or more, measured to the middle of all contiguous streets or alleys, to be certified to the county auditor, and by him entered on the tax duplicate of the county against the lots or lands on which the thistles were cut or destroyed, and be collected the same as other taxes, and returned to the fund " for general purposes " of such city ; such expenses, charges, and additional, as above, will be a lien on such lots and lands from the time said work is done. The provisions of par. 88, as to the notice to the owners, lessees, or agents of any land upon which Canada thistles are about going to seed, have no force or effect in such city; but the publication of notice, as herein provided, will be full and complete notice to all resident and non- resident owners of land in such city. Along partition fences. — An act, passed April 25, 1885 [82 O. L. 181], pro- vides that the owners of land adjacent to any line or partition fence, when the inclosure of two or more persons is divided by such fence, and when the land is improved on both sides of the same, must keep all brush, briers, thistles, or other noxious weeds cut in the fence corners, or along the line of partition fences; and also provides for penalties, fees of officers, steps to be taken, etc., in such cases. CHAP. 5, 89-93.] OPENING, REPAIR, ETC. 131 89, 90. Form of return. township, county, 0., 18—. To the county commissioners of said county: 0n the day of , 18— we were notified, in writing, that cer- tain Canada thistles [etc., as may be] were about to go to seed on the land of L. O., in said district. On the day of , 18-, we Lor, state who, an interested person] notified said L. 0., in writing, to de- stroy said Canada thistles [etc.] within - days, which he failed to do. Thereupon, on the day of , 18-, we caused said thistles to be destroyed. . The bill of charges and expenses therefor is as follows [here give the .. s -| [Signed by Township Trustees.] 91. Passways for stock may be constructed.— Any land-holder through whose land a state, county, or township road is now or may be hereafter laid out and established, is authorized, under the direc- tion of the supervisor of the proper district, to construct a passway either over or under such road, so as to permit stock to pass and repass ; but the passway must not be constructed over or under any road within the limits of the outlots of a city, town, or village, and must not hinder or obstruct the travel on such roads, and must be kept in good repair at the expense of the land-holder. 1 92. Guide-boards to be erected,— The township trustees must cause to be erected and kept in repair, at the expense of the township, at all such forks and cross-roads as are kept in repair for general public travel, and lead to some village, depot, or other important public place, a post and guide-board, containing an inscription in legible letters, directing the way and distance to the village or pub- lic place or places situate on each of such roads. 2 93. Watering places may be provided.— The township trustees are authorized to provide and maintain suitable places for procuring water for persons and animals on the public highways in their town- ships ; but not more than fifty dollars can be expended in any town- ship, in any year, for such purpose, to be paid out of any money in the township treasury not otherwise appropriated. 3 94. Supervisor may enter lands for trees, gravel, ete.— Supervisors may enter upon any uncultivated or improved lands unincumbered by crops, near to or adjoining such roads, cut and carry away tim- ber, except trees or groves on improved lands, planted or left f or 1M740. a H734. 3 H736. 132 ROAD LAWS OF OHIO. [CHAP. 5, 95-101 ornament or shade, and may dig, or cause to be dug and carried away, any gravel, sand, or stone which may be necessary to make, improve, or repair any such road. 1 95. This authority applies to bridges on the roads as well as to the roads themselves, and is operative not only during the regular time for road work, but whenever the roads or bridges are out of repair. 2 96. Certificate for timber, etc., taken for road. — A supervisor of roads, who takes any timber, stone, or gravel for the purpose of making, improving, or repairing any road or structure, or repairiug any bridge or crossway within his district, must, on demand of the owner of the land, or his agent, or the guardian of any ward, or the executor of any will, having the lands in charge from which the same were taken, give a certificate, showing the quantity of such timber, stone, or gravel, with the value thereof respectively, and the time and purpose for which the same was taken. 3 97. The preceding paragraph applies also to superintendents of free turnpikes, improved or other macadamized roads having no gates thereon. 4 98-101. Form of certificate for timber, etc. Eoad District No. , township, county, O. 1 hereby certify that in making [_or, improving, or, repairing] the county [or, state, or, township] road leading from to , [or, bridge, giving its name or location'], within said district, on the day of 1 18—, I took from the land of L. M. the following materials for the purpose of said improvement, as follows: 1 large oak tree, worth $7 00 1 locust tree, " 100 10 loads of gravel, " 2 00 3 perch of stone, " 1 50 Total $11 50 A. B., Supervisor. l l 4715. When a supervisor, entering to cut timber for repairing a road, commits waste, he becomes a trespasser from the beginning. Palmer v. State, Wright, 364. 2 Palmer v. State, Wright, 364; also § 4744. See par. 103. 3 § 4744. As to payment oF such certificate, see par. 102, below *g 4744. CHAP. 5, 102-106.] OPENING, REPAIR, ETC. 133 102. How certificate for road material paid.— A person who receives such certificate must present it to the township trustees of the proper township, at any regular or called session, within twelve months after the taking of such timber, stone, or gravel; and the trustees, if satisfied that the amount is just and equitable, must cause it to be paid out of the fund provided for in the next para- graph ; but a certificate so allowed and paid by the trustees must not exceed twenty-five dollars to any road district per annum ; any greater amount that may be presented must be examined, and if allowed, must be certified by the trustees to the commissioners of the county, with the accompanying vouchers, to be allowed by them if, in their opinion, the same is just and equitable; and the com- missioners must cause the same to be paid out of the county funds for that purpose. 1 103. Levy for. — The township trustees are authorized to levy an- nually, upon the taxable property of their respective townships, in addition to other taxes authorized by law, a tax sufficient to pay such certificates, not exceeding twenty-five dollars to each road dis- trict in the township, which must be certified, assessed, and collected as other township taxes. 1 104. Woods or prairies on fire: trustees and supervisor's duties. — Whenever the woods or prairies in any township are on fire, so as seriously to endanger, property, the trustees of such township may order as many of the inhabitants of the township, liable to work on the highways, and residents in the vicinity of the place where such fire is, as they may deem necessary, to repair to the place where such fire is, and there to assist in extinguishing the same, or stopping its progress. 2 105. Pay for assisting.— -Every person so called out must be al- lowed, by the supervisor of hisroad district, to be applied on his poll or road tax, the same amount per day that he is now allowed for work on public highways. 2 106. Penalties for refusal to assist. —If a person refuse or will- fully neglect to comply with such order, he is liable to forfeit a sum not less than five nor more than fifty dollars, to be collected before any justice of the peace of the township. 3 i g 4745. * g 4750. I 4751. 134 ROAD LAWS OF OHIO. [CHAP. 5, 107-114. 107-110. Form of certificate which may be given. Road District, No. , Township, county, Ohio, , 18 — ■. I certify that E. F. has been ordered out to assist in extinguishing fires in the woods [or, prairies, as maybe], in said district; that he was thus employed for one half day, for which he is entitled to seventy-five cents, to be credited to any road or poll tax against him now due or to become due. A. B., Supervisor. 111. Duty of supervisor as to mill-races. — When any person exca- vates or constructs a mill-race across a public highway, he must give at least thirty days' previous notice, in writing, to the trustees of the proper township, of his intention so to do ; and if he fail or neglect to give such notice, the supervisor of the proper road dis- trict may, if in his opinion the public good demands it, fill up such mill-race or water-course, at the cost of the party so failing and ne- glecting to give notice, to be recovered by the supervisor, together with fifty per centum thereon, and the costs of suit, for the use of such road district, in an notion before any court of competent juris- diction. 1 112. Roads on state lines. — A supervisor of a road district border- ing on the state line between Ohio and an adjoining state may, when a public highway has been located upon such state line in accord- ance with and under the provisions of the laws of the State of Ohio, apply the labor of his district upon such road in the same manner as on roads located within the boundaries of the state. - 113. Roads on township or municipal line. — In case any public road is or may be established as a part of the line or boundary of any township or municipal corporation, the trustees of such adjoining townships, and council of such corporation, as the case may be, must meet at some con veuient place as soon after the first Monday of March asconvenienl and apportion such road between the townships, or town- ship and corporations, as justice and equity may require; and the trustees of the respective townships and council of the corporation must have the road opened and improved accordingly. 2 1 14. After such joint meeting, each township's trustees and each corporation's council should pass and record an order, or ordinance, substantially as follows: 1 \ 17">1. See pars. 146-7, in. chapter 12, for other provisions as to mill-races. 2 g 4747. CHAP. 5, 115-120.] OPENING, REPAIR, ETC. 135 115, 116. Form of order, or ordinance, apportioning road. Whereas, at a joint meeting of the trustees of and town- shins [or trustees of township and the council oi-name the corpo- ration], held on the day of , IS-, for the purpose of appor- tioning the road on the boundary of said townships [or, township and corporation], the following described part of said road was apportioned in this township [or, corporation] to wit : [describe the part]. It is therefore ordered, that said part of said road be made part ot road district No. , and [or, Therefore, Be it ordained by the coun- cil of the-name the corpora/ion] that the supervisor of said district [or street commissioner, etc.-] open [or, keep in repair, etc., as way be] said portion of road according to law [or, modify to conform to the facts.] 117. Territory may be attached to city or village for road purposes. The trustees of any township in which is situated a city or village, may, in connection with the council of the corporation, attach to such corporation any territory lying contiguous thereto, for road purposes. 1 , 118. And detached.— And any portion of the territory so attached may be detached by the council with the concurrence of the trus- tees, and replaced under the control of the township trustees for road purposes. 2 119. Two days' labor in such territory.- -The city or village council have control of the road labor in such attached territory, and may cause it to be expended in such territory or within the corporation, or may cause a portion of the labor due from persons residing in the corporation to be expended within the attached territory. 3 120. How such action to be taken.— After such trustees and coun- cil concur as to such attaching or detaching of territory, which may i \ 9662 Where, under the statutes in force in 1868, contiguous territory was attached to a town corporation for road purposes, a street commis- sioner of the town might lawfully enter upon and take from the lands situate near a public road needing repair, in such territory, material requ.red and necessary to repair such road, although the land from which the material was taken was in another and different road district. Burrows v. Cosier, 33 O. S. 567. 2 \ 2662. . , . 3 1 9658 See chapter 16. When any part of a road district is annexed to a city that part of the road lying in the annexed territory passes out of the jurisdiction of the supervisor, and into the control of the corporation. Steubenville v. King, 23 O. S. 610. 136 ROAD LAWS OF OHIO. [CHAP. 5, 121-122 be done at a joint meeting, or by official communication between such bodies, an order and ordinance relating thereto should be passed and recorded, which may be adapted from the forms in para- graphs 115-116. 121. Road tax within such attacJied territory.— All road taxes assessed within any territory attached to a city or village, must be paid over to the treasurer of the corporation, to be expended upon the roads within the attached territory, uuless the trustees of the township, and the corporation council, agree upon a different distribution 1 . 122. How road fund paid to township treasurer expended.— When money is received into the township treasury from the county treas- ury for road purposes, the trustees must cause the money so re- ceived to be appropriated to building bridges or repairing public roads within their township; and, after public notice, let by con- tract to the lowest bidder (if, in the opinion of the trustees, such bidder is competent to perform the same), such part or parts of any road as they deem expedient, equal to the amount of money to be appropriated as aforesaid ; and when such labor is performed agreeably to the contract or conditions of the letting, the trustees must draw an order in favor of the person or persons who have per- formed such labor for the amount due for the same. 2 See also para- graph 151, below, and paragraph 4 of chapter 27. For forms of contracts, specifications, etc., see chapter 12. 3 i§2661. §1459. 3 Or the following forms may be used, if preferred: Form of order of appropriation. 18—. Ordered that the moneys received from the county treasury, for road purposes, be appropriated and distributed, as follows: To building a bridge over creek, at the point where it is crossed by the road, the sum of dollars. To grading of the hill on the road, near residence of , dol- lars. To repairing the road, the sum of dollars. Etc. And that said money be applied and expende 1 under the superintendence of the supervisors of the several road districts in which the proposed im- provements are ordered to be made. Notice of the letting of such work may be posted in one or more public places in the township, or published in a newspaper of general circulation CHAP. 5, 123-124.] OPENING, REPAIR, ETC. 137 Subdivision 3. General county and township taxes for road repairs, as connected CHIEFLY WITH THIS AND OTHER CHAPTERS; HOW CERTIFIED TO TOWN- SHIP CLERKS, SUPERVISORS, AND TAX -PAYERS; HOW WORKED OUT OR PAID, AND REPORT THEREOF; DISTRIBUTION OF SURPLUS. 123. County commissioners' road and bridge tax levy. — The county commissioners must, at their March or June session, annually, de- termine on the amount to be raised for road and bridge and other purposes ; and they must set forth iu the record of their proceed- ings specifically the amount to be raised for each of said purposes. 1 124. Its amount. — The commissioners, at their March session, an- therein. It should state the work proposed to be sold, and the time when and place where the sale is to take place. Form of notice. Notice is hereby given that, on the day of , 18—, at the office of the clerk of township, in , the following work will be let to the lowest bidder, to-wit: the construction of a bridge over creek, at the point where it is crossed by the road, according to the specifications on file in this office. By order of the township trustees. , Clerk of township. Contract.— After a bid has been accepted, a written agreement, such as found in chapter 12, or, as follows, should be made: Form of contract. This agreement, this day entered into by and between the trustees of township* county, parties of the first part, and , party of the second part, witnesseth, that said party of the second part does hereby agree and contract to construct a bridge over creek, at the point where it is crossed by the road, according to the specifications attached hereto and made a part of this contract. The whole to be completed in a good and workmanlike manner, of good, sound materials, on or before the day of ; 18—. And said parties of the first part agree to pay for said work upon its due completion, according to this contract and the specifications, the sum of dollars. It is mutually agreed that no extra work or ma- terials shall be charged for, unless the same is ordered, in writing, by the hoard of trustees. Witness our hands, this day of , 18—. [Signed by contractor and the township trustees.] 1 1 2822. 138 ROAD LAWS OF OHIO. [cilAP. 5 nually, may levy on each dollar of valuation of taxable property within their county, for road and bridge purposes, as follows: In a county where the valuation of taxable property exceeds one hun- dred and twenty millions dollars, not to exceed three-tenths of a mill ; where the amount exceeds eighty millions and does not ex- ceed one hundred and twenty millions dollars, five-tenths of a mill ; where the amount exceeds fifty millions and does not exceed eighty millions dollars, seven-tenths of a mill; where the amount exceeds twenty millions and does not exceed fifty millions dollars, one mill and one-tenth ; where the amount exceeds ten millions and does not exceed twenty millions dollars, one mill and five-tenths ; where the amount exceeds five millions and does not exceed ten millions dol- lars, three mills; and, where the amount is less than five millions dollars, five mills and five-tenths; and of the tax so levied, the commissioners must set apart such portion as they may deem proper to be applied to the building and repairing of bridges, which por- tion so set apart must be called a bridge fund, and must be entered on the duplicate in a separate column, and must be collected in money and expended, except as may be otherwise provided by law, under the direction of the commissioners in the building and repair of bridges and culverts. 1 1 § 2824. This section further provides, that in case an important bridge belonging to or maintained by any county, has been or shall become de- stroyed or dangerous to public travel, by decay, or otherwise,and the res- toration thereof is deemed necessary for public accommodation, the com- missioners may levy a special tax for that purpose not exceeding one mill and five-tenths, the proceeds of which must be applied solely to such res- toration ; and the commissioners may anticipate the collection of such special tax by borrowing any sum not exceeding the amount so specially levied, or to be levied, at any rate of interest not exceeding eight per centum, and issue notes or bonds therefor, payable upon the collection of such special tax. Also, that in all cities of the first class, and all cities of the second class, one-half the proportion of said bridge fund collected upon property within said cities — in all cases where city council shall demand it — -must be paid into the city treasury, and shall be expended by such city for the purpose of building and repairing bridges. Also, that the commissioners of Montgomery county must levy not ex- ceeding one mill and one-tenth for road and bridge purposes, and that said levj must only be on the property subject to taxation outside of the city of Dayton; and that the proceeds of such levy must be applied exclusively to 139 CHAP. 5, 125-129.] OPENING, REPAIR, ETC. 125 Certain local laivs as to road taxes, etc., may be found by ref- erence to notes below, and to subdivision 16, chapter 27. ' 126 Additional road tax hj township trudees.-U the trustees oi anv township deem an additional road tax necessary, they must de- termine the per centum to be levied on the taxable property of their I „ hip, not exceeding one mill on the dollar. But m count.es ; vlu ,e L taxable property is less than ten millions, the trustees o the different townships may, at their discretion, levy an additional road tax, not to exceed two mills on the dollar valuation of th taxable property of their towuship. This tax may be discharged in labor, a provided in paragraph 144 of this chapter; and the trustees may "seL, in additL thereto, not exceeding one mill on the do lar, for the same purpose, to be collected in money ,- bee also par m 127 Taxes certified to auditor, and collected, tiAen. -These _ taxes must be certified to the auditor on or before the first Monday in May Teach year, and he must assess them on the duplicate for collec- tion in December, as other taxes. 2 128 129 Form of order of trustees for levying an additional road tax. It appearing that the ordinary tax levy for road purposes in the town- ship of— will not be su fficient to m eet all the expenditure^ neces- road7Ind^gero _ ut7de"o7said city, and the council of said city may an nuahv evy on the taxable property within the same, for bridge purposes, a nual.y ley o on V tenth) ln addition to the total aggregate of Ltrn noriuThor^d by said council, to be expended for the buildmg o^rl rpnnirinff of bridges within said city. SZpp.l»^ !«• AUo Athens, Den.nce, H„n,.ton, Wash- ineton and other counties in notes, pp. 691-708. ,D 2 89 This section also provides that where a township includes an in- eolrafed village, the rate of tax so fixed by said township trustees, shall not Tnli be assessed or ollected from the property included within the ,n- app l y o. be .** bob. council of Rny such vinage 7Z: h ionll lev y , for r°oa'd purposes, on the taxable property within Z corporate limits of any such village, as trustees may make for road purposes in their respective townships ^ ^ In Hamilton county, such additional tax to the extent dollar, may be assessed and certified * ^the ^^^^^ and may be worked out, as provided in par. 144, below, a y 77 i?s'me'anin!'in several respects can be guessed at, but is not clear What uZZ^t.n C eM^^^ and "sub-road districts," and by 140 ROAD LAWS OF OHIO. [CHAP. 5, 130-132. sary for such purposes in the year 18 — , it is ordered that an additional mad tax of on the dollar valuation of the taxable property in the township be levied and certified to the county auditor, according to law. 130. Notice to be published. — Immediately after the commission- ers and trustees have determined the amounts of tax to be assessed for road purposes in their respective counties and townships, the auditor must give notice, in some newspaper of general circulation in the county, of the per centum on each hundred dollars so deter- mined to be assessed in the county and the respective townships, and that said tax may be discharged by labor on the roads, under the direction of the supervisors of the several road districts. 1 131. Lists of taxes, etc., to be sent. — The auditor must then make a list of the names of tax-payers, and the amount of the road tax with which each stands charged, and transmit the same to the clerk of the proper township. 2 132. 133. The form of such list 3 (usually called an Abstract of Road Tax) may be, and generally is, substantially as follows, some of the columns being, of course, wider than here given : "this title," it being an independent act, not connected in terras with the revised statutes? For other special law, 82 O. L. 252. 1 \ 4738. Form of notice of the assessment of taxes for road purposes. Road tax kotice. — Notice is hereby given that the commissioners of county, at their session, 18 — , levied a tax of mills [or, cents], on each hundred dollars valuation of taxable property within the several townships in said county, for road purposes in said townships; and that said tax may be discharged by labor on the roads, at the rate of one dollar and fifty cents per day for each able-bodied man, with a ratable allow- ance for any team or implements furnished by any person, under the direc- tion of the proper supervisor. W. R., Auditor. Auditor's office, county, , 18 — . Should the road tax not be uniform in rate throughout the county, the notice must be so changed as to shovv the rate levied in each township. 2 §4'38. 3 If the lands taxed are military lands, not included in those laid off into Ranges, Townships, and Sections, the auditor may give the number of the entry, etc, in place of such "Range, Tp., Sec." in the second, third, and fourth columns. CHAP. 5, 134-137.] OPENING, REPAIR, etc. 141 a &| „ o -1 S I X o 6 y. o « a DO 4> ~! "S o> a "3 > Road Tax on Land. 1-1 d 'A A a w 0) > Road Tax on Lot. u 0-, oj 03 ° — >. > Road Tax on Personal Property Total Road Tax. I cts. $ cts. 1 cts. •1 cts. To the clerk of ■ township : I certify that the foregoing is a correct list of the names of the tax- payers in your township, and of the amount of road tax with which each stands charged, for the year 18 — . W. C, Auditor of county. 134-136. Another form. — All of the details given in the foregoing form are not required by law, and are given for the information of the person taxed, who may then get such information from the clerk, or supervisor below, and may do their own computing. But these officers can not correct the mistakes, if any are found. A short form, as follows, would comply with the law : Names of Tax Payees in Township. Total Road Tax. ? cts. ♦ [Certified as above.] 137. Tax to be certified to supervisors. — The township clerk, im- mediately after the receipt of such list, must make out and deliver 142 ROAD LATVS OF OHIO. [CHAP. 5, 138-144 to each supervisor an abstract of the amount of road tax each per- son iu his distinct is charged with. 1 138, 139. Form of .abstract of road tax from township clerk to super- ior. The form should be precisely like the one received from the county auditor, except that it should contain the following additional columns, to the right of those given above, and should, of course, contain only the names of tax payers in the road district to which it goes. See paragraph 144, below. Give preceding columns. Then add these. Amount paid in Labor. Amount paid in Money. Amount still due. Here Super- visor writes '■ Paid," when so. $ cts. $ cts. ? cts. 140-143. Form of cedificate to same. To , supervisor of road district No. : I certify that the within [or, foregoing, or, following, as may be~] is a correct abstract of the persons owing road tax in your district, and of the amount due from each, for this year, as appears from the list fur- nished me by the auditor of said county. [Add, when so — see paragraph 1 48-1 r »0, below.'] You are dircted to note, in the proper columns to the right of each person's name, what part of said tax such person pays you in money, and what part in labor, and to mark the word " paid " in the last column opposite the name of each person who pays his share of said tax either in money or labor, and to return this abstract to me on the day of , 18 — . D a t ec i , 18 — . A. B., Clerk of said township. Returned , 18 — . 144. Payment of road tax by labor. — Any person charged with road tax may discharge the same by labor upon the public highways of the district, within the time designated by law, at the rate of one dollar »§47 CHAP. 5, 145-149.] OPENING, REPAIR, ETC. 143 and fifty cents per day, and a ratable allowance for any team and implements furnished by any person, under the direction of the supervisor of the proper district. 1 145. Certificate of payment by labor. — The supervisor must give each person so performing labor a certificate, which certificate must in no case be given for any greater sum than the tax charged against such person, and the certificate, must specify the amount of tax thus paid, and the district and township wherein the labor was performed ; and the county treasurer must receive all such certificates as money in discharge of the road tax. 1 146, 147. Form of certificate. I hereby certify that R. L. has paid in labor dollars and cents, being in full [or, if not paid in full, say, on account] of his road tax for the year 18 — , in road district No. , township, county Ohio, and that such labor was performed between the day of and day of , 18—. , Supervisor. , 18—. 148. Lists to be returned. — When the county commissioners so direct, the supervisor must write on the margin of his list, opposite to the amount charged against all such as pay by labor or money, the word " Paid," and must return his list on or before the fifth day of September, of the same year, to the clerk of the township. The clerk must then write the word "Paid" on the margin of the list sent him by the auditor, opposite to the amount charged to each one who has paid, as shown by the supervisor's list, and forthwith for- ward the same to the county auditor, who is required to charge all such as remain unpaid, according to the returned list, with the amount due, upon the tax duplicate, and the same is to be collected as other taxes. 2 149. When labor to be done. — When such road tax is paid in labor, 1 §2830, as amended, 77 O. L. 184. The failure of a road supervisor to give notice of the time when, and place where, the road tax may be worked out, will not release the land from a lien of such tax. R. R. Co. v. Lancas- ter Co., 4 Neb. 293. 2 g 2830, as amended, 77 O. L. 184. In Hamilton county, the supervisor must return his list on or before the twenty-fifth day of September. 77 O. L. 38. 144 ROAD LAWS OF OHIO. [CHAP. 5, 150-152. such labor must be performed before the first day of September of the year iu which the tax is levied. 1 150. Certain exceptions to this. — -In all counties containing either graveled roads or free turnpikes, or both, except Shelby and Allen counties, the time for the payment of the road tax in labor on such roads may extend to the fifteenth of October of the year the tax was levied ; but on all other roads in such counties the labor must be performed before the fifteenth of September; and the super- visors in such counties must return their lists, before the twenty- fifth of October of the year in which the tax was levied. 2 151. To ivhom collected road taxes paid, and how expended. — All road taxes collected by the county treasurer must be paid over to the treasurer of the township or municipal corporation from which they were collected, and must be expended ou the public roads, and in building and repairing bridges, in the township and municipal cor- poration from which the taxes were collected, under the direction of the trustees of the proper township, or council of such municipal corporation ; and all fuuds heretofore levied for road purposes, and not expended, must be expended by such trustees or council as other taxes collected uuder the foregoing provisions of this subdivi- sion. 3 See also paragraph 122. Subdivision 4. Additional tax by township trustees for cutting down hills, etc. 152. If, for the purpose of cutting down hills, filling low places and making repairs that may be necessary by reason of any cas- ualty that may occur on the public highways of their respective townships, the township trustees deem it necessary to levy a tax ad- ditional to that provided for in paragraphs 123, 124, above, they must determine the per centum to be levied upon the taxable property of their respective townships, not exceeding three mills on the dollar. x \ 2830, as amended, 77 O. L. 1S4. In Hamilton county, "before the first day of October." 77 O. L. 38. 2 §2830, as amended, 77 O. L. 184. The list of counties affected by such exceptions is liable to be changed fre- quently. 3 § 2830, as amended, 77 O. L. 184. As to Hamilton county: "All road taxes collected by the county treasurer CHAP. 5, 153, 154.] OPENING, REPAIR, ETC. 145 But such tax must not, in auy year, exceed the sum of two hun- dred dollars, unless the question of a greater levy be submitted to a vote of the qualified voters of the township, at a special election called by the trustees for that purpose ; if a majority of the quali- fied voters at such election vote in favor of levying such tax, the trustees must certify the same to the county auditor, in writing, on or before the first Monday of June in each year, and the auditor must assess the same on the taxable property in the township, not included in any municipal corporation, and it must be collected in the December installment, and paid out as other taxes, except as hereinafter provided. 1 153. Hoio election conducted. — For forms and procedure which can be adapted to suit this case, see paragraphs 43-61 of chapter 6. Subdivision 5. Extra road tax by county auditor. for constructing or repairing, etc., any state, county or turnpike road, on petition of tax- payers within one mile of road. 154. Petition for, and levy of tax. — When two-thirds of the resi- dent freehold tax-payers living on the line of any state road, county road, or turnpike road, file a petition with the auditor of any county for an extra tax for the purpose of constructing, improving, or re- pairing such road, he must levy such tax, of any amount that may be required, not exceeding six mills on the dollar valuation, in any from any person shall be paid over to the treasurer of the township or mu- nicipal corporation from which they were collected, and shall he expended on the public roads, and in building and repairing bridges, in the several subdistricts in the township or municipal corporation from which the said taxes were collected and the same taxable property is located, under the direction of the trustees of the proper township or council of such munici- pal corporation and supervisors of the several subdistricts in each township. All funds heretofore levied for road purposes, and not expended, shall revert back, as herein named, to the several subdistricts and villages, and be ex- pended under the direction of the trustees of township and supervisors of the several sub-road districts, or council of municipal corporation, from which tho same was collected, as other taxes collected under the provisions of this title." 77 O. L. 38. See note to par. 128, above. !§ 4737. 10 146 ROAD LAWS OF OHIO. [chap. 5, 155-159. year, on all the lands and taxable property for any distance on each side of such road not exceeding one mile, and in no case more than half the distance from such road to any other state, county, or free turnpike road running parallel or nearly parallel thereto. 1 For form of petition readily adaptable to this case, see paragraphs 10- 12 of chapter 7. 155. How long such tax to continue. — When any such tax is levied it must continue for the term of three years and no longer, unless at the expiration of three years the petition or request be renewed ; and in that event such tax may be levied for the term of three years longer. 2 156. Wlien such tax may be levied in a township. — The auditor of any county must levy such tax on the lands and property on the line of any such road, in any township, when petitioned for by three-fourths of the resident freehold tax-payers on such road, in such township only. 3 157. Such tax may be paid in labor under supervisor. — All taxes arising under the provisions of the three preceding paragraphs may be discharged by labor on the proper road, under the direction of the supervisors within whose jurisdiction such road is located, as pro- vided in paragraph 144, above. The rate of labor is fixed by law at one dollar and fifty cents per day, and a ratable proportion for teams and implements. 4 158. Supervisor to give receipts. — If such taxes be discharged by labor, the supervisors must receipt therefor, as in other cases for like services, and their receipts must be received by the county treas- urer in discharge of such tax. 5 For form of receipt, see paragraph 146, above. 159. Disbursment of tax when paid in money. — All taxes arising under the provisions of the first four paragraphs of this subdivision, and not discharged by labor, must be collected as other taxes by the 1 \ 4925. The provisions of section 4925 of the Revised Statutes, author- izing the levy of an extra tax to improve a state, county or turnpike roadi do not authorize the levy of such tax to improve a certain specified part only of such mad. Elliot v. Berry, 41 O. S. 00. Note the general similarity of the provisions of law in this snhdi vision, passed in 1872, and of chapter 7, passed later, and seemingly expanded for this. 2 'i 1926. See preceding note. :; I 4927. 4 § 4928. 5 1 4929. CHAP. 5, 160-166.] OPENING, REPAIR, ETC. 147 treasurer of the county, and by him paid to the treasurers of the townships in which such roads are situate, and be disbursed by the trustees of such townships upon the roads for which the same were levied ; but if any road, for the benefit of which any tax is so lev- ied, is on a township line, the county treasurer must pay to each of the township treasurers the portion of the taxes belonging to his township. 1 Subdivision 6. HOW TRUSTEES MAY AUTHORIZE CERTAIN UNIMPROVED STATE, COUNTY, OR TOWNSHIP ROADS TO BE IMPROVED BY PETITIONERS THEREFOR, UNDKR supervisor's instructions. 160. Petition for, and extent of improvement— -The trustees of any township may, upon the written petition of one or more persons in- terested, describing the road or part thereof proposed to be im- proved, authorize any person living on or near any unimproved state, county, or township road, situate within the township, which intersects or connects with any turnpike or improved road, to im- prove any part or all of such road situate within the township, within such time as they may direct, by grading it not more than sixteen feet wide, and graveling such grade not exceeding twelve feet wide, or otherwise improving it. 2 For suggestions as to form of petition, see order below, and petitions in chapters 2 and 8. 161. How to be made.— Such improvements must be made under the instructions of the supervisors of roads within whose districts the road or part thereof to be improved is situate. 2 162-166. Form of order to improve. In the matter of the road \ petitioned for by A. B. and others, j A. B. [and others, if so~\ having filed with this board a petition ask- ing leave to improve [here state what road, or part thereof, is asked to be im- proved, and also in what manner it is proposed to improve it] as provided by section 4755 of the Revised Statutes of Ohio, and said board believing that said improvement would be of public utility and desirable, said petitioners are therefore authorized and ordered to make said im- provement, under the instructions of the supervisor [or, supervisors, re- spectively] of the road district [or, districts] within which said road [or, part of road] to be improved is situate, as mentioned above [or, if i §4930. 2 H755. 148 ROAD LAWS OF OHIO. [chap. 5, 167-176 differently, state how; and give rules, etc., as required in paragraph 168, below"]. It is further ordered, that the [mention what materials] for such im- provement be taken from [state where, as per next paragraph], and that said supervisor proceed in reference to the foregoing, according to law. 167. Trustees' duties as to materials. — The trustees, at the time of authorizing such improvement, must direct in their order at what point the materials therefor shall be taken, under the general laws in force for procuring materials for the improvement of public roads, which point must be the nearest and most convenient to the place where the materials can be procured in the township. 1 168. Supervisor's duties, etc. — As soon as such road or part thereof authorized to be so improved, within any road district, is fully im- proved and completed to the satisfaction of the supervisor of such district, he must estimate the work so done by the several persons authorized, either by themselves or those employed by them, under such rules and regulations as the township trustees prescribe as to extent and character of such improvement, and give to such persons a certificate specifying the amount of labor performed by them, stating when authority was given to improve such road, and when it was completed in his district, and accepted by him, and the value in money of such labor so estimated ; but in estimating the value of such labor in money, the supervisor must not allow a greater sum than two dollars and twenty -five cents for each team and driver, and not to exceed one dollar for each hand per day, for the time actually employed. 2 169. In case of dispute between the supervisor, and any person in- terested in such improvement, as to the manner of making it, its completion, or the value of the work, the matter in dispute must be submitted to the township trustees, and their decision will be final. 3 170-176. Form of certificate mentioned in paragraph 168. Road District No. , township, county, 0., , 18 — . I hereby certify that L. 0. has performed labor on the [here name, or otherwise describe the road] road within said district, between the i \ 1757. 2 §4755. 3 § 47-")5. It is only in case of such dispute that the matter is submitted to the trus- tees. They can not allow more than $2.25 per day for team and driver, nor than fl.OO day per band, during time actually employed. Opinion of Lawrence, Attor- ney-General (1884). CHAP. 5, 177-184.] OPENING, REPAIR, ETC. 149 day of , 18—, and the day of , 18—, the prices set forth being allowed by me, as follows : One [or, more, as man &«] hand, for days, at P er day...... % One [or, more, as may be] team, for days, at per day The authority to improve said road was given on the day of , 18 — ( an d the improvement was completed in said district on the day of , 1 8—, and accepted by me on the day of , lg A. B., Supervisor. 111. Certificate transferable to whom. — The owner of the certifi- cate may transfer it, or any balance due on it, to any subsequent pur- chaser of the property owned by him when the certificate was is- sued. 1 178. Hoio certificate credited.— The holder of any such certificate will be entitled to have its amount credited on any road tax, pay- able in labor, levied on the property of such person situate within the county, after the completion of such improvement. 1 179. If such road tax levied in any year on such property is not sufficient to cover the amount of the certificate, it must be so credited from year to year until the certificate is fully paid without interest. 1 180. Supervisor must give receipt. — At the time of making such credit upon the certificate, the supervisor must give to the owner of the certificate a receipt for the road tax charged against him for the current year. 1 181-183. Form of receipt. Road District No. , township, county, O. The road tax charged against L. 0., in said district, for the year 18 — ( has been paid to the extent of dollars and cents, by labor done in said district in the year 18—, and described in his cer- tificate therefor, dated , 18—, and signed by A. B., supervisor. I have this day credited said amount as paid on said certificate. C. D., Supervisor. 184. Not applicable to what counties. — The provisions of this sub- division do not apply to Fulton county. 2 i g 4756. 2 See 79 O. L. 88. 150 road laws of ohio. [chap. 5, 185 Subdivision 7. Miscellaneous provisions. 185. For other matters relating to repair or improvement of such roads as treated of in this and preceding chapters, but applicable to roads mentioned in the following chapters as well, see chapter 10. S,e also chapter 27, as to sidewalks along roads ; the purchase and transportation of road material by county commissioners, township trustees, etc.; building embankments to raise roads out of water, or protect them therefrom ; obstruction of roads ; hedges along roads ; and other provisions. As to telegraph and telephone lines along roads, see chapter 14. 1 ^1 CHAP. 6, 1-3-] FREE TURNPIKES, ETC. CHAPTER VI. FREE TURNPIKES,* BUILT AND OWNED BY THE PUBLIC. 1 When and where county commissioners may build turnpikes When the county commissioners of any county become satisfied that the public interests of their county demand and justify special action for the improvement of the roads therein, they may appoint three disinterested freeholders of the county as commissioners, to view, survey, and locate one or more roads, beginning at and lead- ing from the county seat of the county, or such other and eligible points as may be deemed proper, and running by such direct and eligible route as they may find best for the public convenience, and terminating at any point within or at the- county line ; but such road can not be constructed nor maintained by them within the cor- porate limits of the county seat, when, according to the last federal census, its iuhaibtants exceeded one thousand in number 2 As to initial proceedings, etc.-It will be noticed that before the commissioners can proceed to act in any respect toward building improved roads, under chapters 7 and 8, petitions must be filed with them, asking for such improvements; but, in reference to such roads built under this chapter, the commissioners may take all the initial steps when, for any reason, whether urged by petitioners or not, they " become satisfied," etc. # 8 Should resident land-holders or others desire to induce the commissioners to build, such a road, they may petition therefor, substantially as in case of other improved roads, but in this case "Tl^pike, strictly speaking, is a gate or pike set across a ^*«£ travelers and vehicles till toll is paid for traveling on the road. A tui npik< road originally meant a toll road with such pikes. A free turnpike now means merely an improved free road. See par. 1, chap. 11. 2 3 4758, as amended, 77 O. L. 298. For form of appointment of freeholders, see paragraphs 8-14, below. Where an act requires county commissioners to levy a tax in June 18,7, they are not exonerated from performing the duty three J°™^*»- cause they failed to do it then. State „. Commissioners, 3d O. S. 458, 4bS. 152 ROAD LAWS OF OHIO. [CHAP. 6, 4-6 such petitions could not compel any such action as prayed for to be had. 4. Certain taxes must be paid to town or city. — For the purpose of improving the streets of such county seat, as mentioned in para- graph 1, above, so much of the tax collected therein for turnpike purposes as, in the judgment of the county commissioners, may be necessary for that purpose, must be paid over to the treasurer thereof, to be expended in improving the streets of such town or city. 1 5. May be located upon an old road. — The commissioners may au- thorize the viewers or commissioners appointed by them to locate the road upon the whole or any part of any state, county, or town- ship road heretofore laid out and established within the county, and to widen, alter, change, or vacate such old road, or any part of it, subject to the rules as to compensation for property appropriated as specified in paragraph 27. 2 6. The manner in ivhich the road must be constructed. — The roads established and constructed under this chapter must be opened not more than sixty nor less than forty feet wide, and at least twenty feet in width must be turnpiked with earth so as to drain freely to the sides, and raised with stone or gravel not less than ten nor more than sixteen feet in width, nor less than twelve inches thick in the center, and not less than eight inches thick at the ou ter edges of such bed of stone or gravel, well compacted together in such man- ner as to secure a firm, even, and substantial road; but the com- missioners may, in their discretion, cause the road to be constructed wholly of earth, when stone or gravel is not accessible to the line of the road. The grade of ascent or descent on the road can in uo case be greater than seven degrees. The road must be well pro- vided with all necessary side-drains, waste-ways, and underdrain- ing, to prevent overflowing or washing by water, and with substan- tial bridges or culverts at all crossings of water-courses ; and such roads must be free to the public for travel. 3 'See note 2, preceding page. 2 2 4761. :! § 4759. One of the essential points, and one which the engineer should look well after at the time of locating, is to provide ample width for the con- struction of the road. * * * The road-way should never be less than 50 feet, and in certain places, as in hilly country, where the cuts and fills arc large, or in wet, swamp lands, where deep side ditches are needed, even this width CHAP. 6, 7.] FREE TURNPIKES, ETC. 153 7. Survey, etc., of road, rigktofway, and materials.— The county com- missioners may authorize the commissioners appointed by them to call to their assistance a competent surveyor or civil engineer, or both, at their discretion, with the necessary and proper assistants, and to lay out, survey, and locate such turnpike road, through or upon any Mist be increased variously up to 100 feet. * * * The top of the road- bed should be made slightly rounding, from side to side, the amount of crown to be from 6 to 10 inches, depending upon the width of road-bed, the greater crown to be given to the greater width ; except, where the bottoms of side ditches, on either side, are 3 feet or more below the level of the road, in which case the top of the road-bed should be made level from side to side. The proper construction of the side-ditches is a matter of prime importance, and the extremes, of either too much or too little side-ditch, are both very bad. * * * Perfect drainage is an absolute necessity in the construction of a durable road, and the engineer should so construct the ditches as to draw the rain water quickly and entirely away from the center of the road, and should also provide good and sufficient outlets, as a side-ditch, left so as to stand full of water, is as bad or worse for the road than no ditch at all. The bottoms of the side ditches should always be kept as far as practicable from the center of the road, should be cut smooth, and straight, parallel with center line, and in ordinary grading at a distance of about 10 feet from the edge of road-bed, and the grade should be so constructed as to have a regu- lar, straight slope, from the edge of road-bed down to the bottom of the ditch. In summit-cuttings of 2 feet or more in depth, the bottoms of the ditches, at the summit, may be made within 2 feet of the edge of the road- bed, but should be made, on eachsideof thesummit, to diverge fromtuecenter line of road, so as to regain their usual distance from the center on reach- ing the end of the cutting. By placing the side-ditches close to the road- bed at the summit, a greater depth of cutting can be obtained for the same amount of excavation, and, by increasing the depth of cutting, a less height is necessary in the fill, and the cost of construction is thereby greatly re- duced. A level-cutting is very objectionable on account of bad drainage, and to remedy this defect, all cuttings should be given a pitch, or grade, of at least one loot per 100 feet. Fills should be built in layers, of uniform thickness, of about one foot, commencing the fill full width on the bottom, which bottom should be made wide enough to give the fill a slope on each side when completed, not steeper than 2 feet horizontal for each foot verti- cal. Various expedients have been resorted to by different engineers to counteract the settling in fills, none of which have, so far, proved entirely satisfactory. A very simple plan, and one which gives tolerably fair results, however, is, in fills of 3 feet or more in height, to have the fill built in regu- lar order and up to the height required for grade line, and then allowed to stand 5 days for each foot in height of fill at deepest point, after which 154 ROAD LAWS OF OHIO. [CHAP. 6, 8-14 improved or unimproved lands, on the best route between the points of beginning and termination, and to obtain by grant, or take propositions for the purchase from the owners of land over which the road will pass, the right of way, and to take timber and other materials necessary to the construction and repair of the same. 1 8-14. Form of entry, appointing viewers, etc. In the matter of the — Free Turnpike [See ) Vim&r& inted etc _ par. 1, and note 2, p. 417; also note 1, p. 22.] J ^r The board of commissioners of county, Ohio, being satisfied that the public interests of said county demand and justify such ac- tion, hereby appoint A. M., C. N., and C. O., disinterested freeholders of said county, as commissioners or viewers to view, survey, lay out and locate, under the provisions of chapter 6, title 7, part 2 of the Re- vised Statutes of Ohio, a road, beginning at [thence to , if so] and terminating at , in said county, through any improved or un- improved lands, on such direct, eligible and best route as they can find between said points. [Here say, if so : But said viewers may locate said road, in whole or in part (or, designate what part, if desired), on the state the work should be again built up to grade line, and completed as desired. If the time set for completion of contract will not allow time for settling of fills as above, then about 20 per cent should be added to the required height of fill, and the work may be completed at once. The general form of the road must be made with reference to the country in which it is located; thus, a road in flat, prairie, or wet lands must be made with special reference to drainage, providing ample and well constructed side-ditches, from 18 inches to 3 feet deep, and the grade line should be carried well up, so the road-bed will always be high and dry; whereas, in rough and hilly country the operation is in a manner reversed, provision must be made to prevent side- ditches from washing too deep, while the grade line should be placed as low down as possible, and avoid as far as practicable the building of very high fills; the latter for two reasons, 1st, as a matter of economy, both in con- struction and subsequent repair; 2d, as a precaution against accidents in icy weather. A road, very good in other respects, may still be made quite un- satisfactory by having a very high grade line and deep side-ditches, which renders it inaccessible to adjacent lands, hence the necessity for keeping the grade line as low as possible, and to avoid making ditches deeper than the proper drainage of the road requires.— Extract from paper read by A. S. Buchanan, C. E., at the January, 1883, meeting of the Ohio Society of Survey- ors and Civil Engineers, at Columbus, O. But see note to pars. 1 and .64 of chapter 8. ig 1760. CHAP. 6, 15-19.] FREE TURNPIKES, ETC. 155 (or, county, or, township) road heretofore established between said points, and may widen, alter, change, or vacate such old road, or any part thereof (or, specify what part), as they may deem will best subserve the public interests.] Said viewers may call to their assistance a competent surveyer or civil engineer, or both, with two chain-carriers and one marker, and such other proper assistants as may be necessary, if any. Said viewers are also authorized [and directed, if so~] to obtain, from the owners of the land over which the road will pass, grants of the right of way and of the right to take timber and other materials nec- essary to the construction and repair of said road ; or, in case such grants can not be obtained, to obtain propositions for the purchase of said rights from said owners. Said viewers are directed to meet at , on , 18 — , and, after being duly sworn, to enter upon the discharge of their duties, and to make a written report of their doings to this board, at their ses- sion on , 18 — . 15. Notice to viewers of their appointment. — A copy of the forego- ing order should be given to at least one of the viewers; and, if given to one only, a notice similar to the one in paragraphs 37-39 of chapter 8 should be given to the other two. 16. How road commissioners should proceed, etc. — Though the law does not specifically say so, there can be no doubt but that the view- ers should proceed substantially as iu similar cases, to be sworn, at- tend to the duties imposed upon them by the order of the commis- sioners and by law, and make a written report of their doings. The directions and forms relating to such duties and report, includ- ing a profile of the road, a plat of the adjacent land, descriptions and explanations, given in chapter 8 of this volume, may be fol- lowed where none are given here, making such changes as circum- stances require. 17. The report of the viewers should state from whom grants of right of way or to use materials, and also propositions to purchase the same, were obtained ; and such grants and propositions should all be filed with the report. Such grant and proposition may be substantially as follows : 18, 19. Form of grant of right of way, etc. Know all men by these presents, that I, L. 0. [and others, if so; on each may grant separately], in consideration of the benefits to be derived 156 EOAD LAWS OF OHIO. [CHAP. 6, 20-26. by him {or, them] from the free turnpike proposed to be established and made from to , in county, Ohio, by the county com- missioners of said county, do hereby grant and convey to said com- missioners the right* of way, feet wide, for said road along that part of its route described as follows : {Here describe the route. This de- scription could best be furnished accurately by the surveyor or engineer ; but if tit' line be not yet located, or an accurate description can not be obtained, say, for instance : Through my farm (or, farms, or, lot, or, lots, etc.), along such line as said commissioners may select, or, have selected.] Given under my hand this day of , 18 — . L. 0. {and others, if so~\. 20. This should be acknowledged before a notary public or other officer authorized to take acknowledgement of deeds, which may be iu form as follows, and must be on the same sheet as the grant : 21-23. State of Ohio, county : On the day of , 18 — , L. 0. {and others, if so~\ personally came before me, a notary public {or, J. P., etc.] in and for said county, and acknowledged the signing of the foregoing grant to be his volun- tary act and deed. {Add, if so — but this is unnecessary, unless the xoife owns the land — see paragraphs 92, 93, chapter 7 — ] and M. 0., wife of said L. 0., being examined by me apart from her husband, and the contents of said grant being by me explained to her, said that she voluntarily signed the same, and that she is still satisfied therewith. R. E., Notary Public, county, Ohio. 24. {If such grant is of materials, timber, etc., follow the foregoing form to the *, then say :] to take timber {or, gravel, etc., as may be~\ to construct [and repair, if so~\ said road from {say where such things may be taken; and if desired, limit the time within which they may be taken, and also their amount]. 25. This latter grant need not be acknowledged. 26. Form of proposition to sell. 1 agree to sell to the county commissioners of county, Ohio, {state what] at the following prices {give prices'], to be used only for right of way {or, constructing, or, repairing the free turnpike proposed to be established and made by said commissioners from to , in said county. ,18—. L. 0. This need not be acknowledged. TS7 CHAP. 6, 27-34.] FREE TURNPIKES, ETC. 27 How compensation to land-owners to be ascerta^L -When these commissioners and the owners foil to agree as to the amount of com- pensation, or when the owner is unknown, non-resident, or in- capable of contracting, then this amount must be ascertained and adjusted by proceedings had in the name of the county commission- ers, under the law providing for the appropriation of private piop- ertv bv corporations. . . 28 Donations cud agreements m aid of roao,-Before detenmnrog to locate or establish any such turnpike road, the county commis- sioners may require donations of money, and written agreements ou the Part of tax pavers of the eouuty subjecting thetr taxab e prop- r v ,o taxation annually, to aid in the location and construct™ of the road during the term of years named ,n these agreements, and at the rate therein specified. 2 29 This requiring may be either before or after the appointment of the viewers, and after their report is returned to the commis- sioners, as specified in paragraphs 8-14 and 16, above. 30 All revenues derived from donations in money and taxation must" be kept and held as a separate fund in the county treasury applicable only for the purpose of locating and constructing such ^tl-M X Formofreeeiptfor money so donated.-The treasurer should give a receipt for all money so donated, which may be as follows : « Treasurer's Office, county, Ohio, , 18—. Lc^edfro^^ \\Z "ZlZrovX seems to m ean both persona! and real pro,-. If Imay not the amount of taxable property so decrease as to make it unsafe L ZZL that a fixed rate for a fixed number of years will produce enough or he road? Near wealthy cities, for instance, the removal, to or from a ^boZd, of one man whose large wealth may be all P^^jS of Llf makes a great difference in the receipts from taxes on all taxable nronertv" of a village or district. P Partraph 38 says the filing of such agreements operate as a hen on the reale Xe of the parties joining in them, which, to some extent, seems to Xw^real estal only is meant. Under the general pr m c, pics and prac- tice as to assessment for street ^^^^^S% § o Pl- enty that is assessed. But see paragraph 88, chapter /, ana graph 40, below, s I 4762. 158 EOAD LAWS OF OHIO. [CHAP. 6, 35-40 the county commissioners of said county, to assist in constructing the proposed Y. and Z. Free Turnpike Road in said county, from through to . Said money is to be refunded if said road is not established and constructed. C. T., County Treasurer. 85-37. Form of tax-payers' agreement. We, the undersigned, tax-payers of county, Ohio, hereby agree with the commissioners of said county and with each other, that if said commissioners will locate and construct a free turnpike in said county from [through , if so], to , on such route as may be selected according to law, our taxable property in said county may be taxed annually, for years and at the rate of mills on the dollar, to aid in the location and construction of said turnpike. [7b more surely comply with par. 40, if desired, add: and we pray for the levying of the amount of cost of such location and construction on the taxable property within the boundaries of the said road, according to the benefits to said property, taking into consideration any assessments heretofore made.] Signed in said county in the year a. d. 18 — . \_Signatures.~] 38. Record of agreement; is a lien. — These agreements must be filed und recorded in the office of the county auditor; and from the time of such filing and recording, will operate as a lien upon the real estate of the several parties joining therein as donors for the purpose therein provided. 1 39. Money refunded and agreement* void, ivhen. — If the commis- sioners determine not to establish and construct such road, then any money received as donations must be refunded, and the agreements for donations by taxation will become inoperative. 1 40. When an assessment may be made, and on what. — When the county commissioners receive or require donations of money, or written agreements on the part of tax-pavers subjecting their tax- able property to taxation annually, to aid in the location and con- st ruction of such roads, and a majority of the tax-payers within the boundaries of the road sign such subscription or agreement, the commissioners are then authorized to levy the amount thereof upon all the taxable property within the boundaries of the road, accord- ing to the benefits to said property, taking into consideration an v assessments that have, been heretofore made. The boundaries of the 1 g 4762. CHAP. 6, 41-44.] FREE TURNPIKES, ETC. 159 road can not be taken to include any property that does not lie within two miles of such contemplated improvement. 3 41. Hoio to proceed when no such donations nor agreements required, etc. — But the commissioners may not choose to require any such as- sistance, or may fail to get it, or may get some, but not so much as indicated in paragraph 40, above, and may desire to proceed to con- struct such road by a general tax upon all the property of the county, or by such tax and such aid as has been secured. 42. Their course will then be to have an election held, as men- tioned below. 43. Question of general tax must be submitted to electors. — The com- missioners can not levy any general tax, nor appropriate any money (except so far as may be necessary to pay the expense of prelimi- nary surveys already commenced, or any other liabilities already in- curred) to be expended in the construction of such turnpikes, with- out first submitting to the qualified voters of the county the ques- tion as to the policy of constructing such roads by general tax, which submission must be made at any annual spring or fall elec- tion. 2 44. Notice of such election. — The commissioners must cause public notice of such vote to be given by publication in all the newspapers printed and of general circulation in the county, and also by caus- ing hand-bills to be posted up at the usual place of holding elec- tions in each township and ward throughout the county, at least fif- teen days before such election.' 2 1 g 4767. Paragraph 28, above, seems to authorize, in effect, the re- ceiving of subscriptions in aid of the road, and to provide a sure way of col- lecting what subscribers agree to give. Paragraph 40 (whose meaning is ; however, obscure), seems to construe such subscription to be also a petition for constructing the road by a tax on all the taxable property within its boundaries. If this view be correct, and the courts sustain such construction, such subscription list operates as such in any case, and also, if enough sign it, as a petition in paragraphs 10-12 of chapter 7 ; and such road becomes prac- tically a one mile assessment pike, with two mile boundaries. But the safer way, if a general tax is to be levied, would be to proceed to hold an elec- tion, as provided in pars. 43 et seq. See purs. 64, 88, chap. 7. 2 1 4763, as amended, 77 0. L. 161. That amended section also provides that in any county in which such question has heretofore been submitted, under the authority of an act enti- 160 ROAD LAWS OF OHIO. [CHAP. 6, 45-51 45-49. Form of notice. The qualified voters of county, Ohio, are hereby notified that the question of constructing a free turnpike in said county by the county commissioners, from , through , to , will be sub- mitted to said voters at the next election to be held on the day of , 18 — . [If more than one pike is proposed, change notice accordingly. ~\ Said turnpike, if constructed, is to be paid for by a general tax lev- ied on all the taxable property of the county. [If so, say, instead of the preceding paragraph :] all [or, about one-hal!'. etc., as may be~] of the right of way for said turnpike has been granted, free of charge, and propositions for purchase of the remainder, at a cost of $ , are on file. The right to use all the material for build- ing about miles of said road are also on file. Donations in money, to the amount of % and written agreements by tax-payers to have their property taxed to raise $ more, have been required and se- cured by the commissioners, to aid in the location and construction of said road [or, otherwise state, as may be so']. The remainder of its cost will be raised by a general tax on all taxable property of the county. [Here may be added :] which tax, it is estimated, will be about mills on each $100. [Here may also be added :] Those in favor of said turnpike will have on their tickets, ''Turnpike, Yes; " and those opposed thereto, will have on their tickets, " Turnpike, Xo " [and print or write the tickets accordingly]. 50. Conduct of the election, etc. — The judges of such election in the several townships and wards in the proper county must open a poll for taking such vote, receive and count the ballots cast, and within three days thereafter return to the auditor of the county a full and correct abstract of the votes, and must, in all respects, be governed by the laws regulating general elections. 1 51. The poll-books so returned must, within five days from the day of holding such election, be opened, and the votes counted by the commissioners and auditor of the county ; and a correct state- ment of the result must be kept by the auditor on file in his office for public inspection. 1 tied '• an act to authorize county commissioners to locate and construct turn- pike roads," passed April 30, 1869, and acts amendatory thereto, and in which, at such election, the majority of the votes cast were in favor of such policy, no vote shall be again required to authorize the commissioners to continue such tax and improve roads as provided for in this chapter. i§ 1764. CHAP. 6, 52-60.] FREE TURNPIKES, ETC. 161 52. Pay of judges of election.— The judges mentioned above are entitled to the same compensation for returning the poll-books as in the case of general elections, to be paid out of the county treasury on the order of the county auditor. 1 53-55. Form of poll-book. POLL-BOOK Of the election held in the of , in the county of , on the day of , a. d. 18 — , as to constructing a free turnpike from to , to be paid for by a general tax, and , judges, am l ) clerk of said election, were severally sworn, as the law di- rects, previous to their entering on the duties of their respective offices. NUMBER AND NAMES OF ELECTORS. NUMBER AND NAMES OF ELECTORS. 56-60. Form of abstract, or tally sheet. Tally sheet of an election held at precinct, township, county, Ohio, on , 18—, showing number of votes cast in favor of, and number of votes cast against, constructing the Y and Z Free Turn- pike by general tax. Turnpike, Yes. [Here give the tallies ; and at their right, give in figures the number of votes for.~\ Turnpike, No. [Here give the tallies ; and at their right, the number, in figures, of votes against.'] We hereby certify that, at the time and place above mentioned, [here slate the number, in words'], votes were cast in favor of constructing said turnpike by general tax, and that [here state the number in words] votes were cast against so constructing said turnpike. F. II., G. S., H. T., Judges of said election. I. U., .1. V., Clerks of said election. ^6764. 11 162 ROAD LAWS OF OHIO. [CHAP. 6, 61-67 61. Inclose one of the poll-books and one of the tally sheets securely in a sealed envelope, to be returned to the auditor as above directed, and retain the other one of each, with the ballots, as in case of elections for county officers. 62. Question may be again submitted. — If at such election a major- ity of the votes so cast be agaiust the policy of constructing such turnpikes, the commissioners can not assess any tax for that pur- pose ; but they may, on petition of not less than one hundred tax- payers of the county, again submit the same question at any regular annual election, either in the spring or fall, to the qualified voters of the county. 1 63-65. Form of petition may be as follows : To the board of county commissioners of county, Ohio We, the undersigned, tax-payers of said county, respectfully petition your honorable body to submit again to the qualified voters of said county, at the election to be held on , 18—, the question as to the policy of constructing, by a general tax, a free turnpike from through to [or, if more than one pike is desired, and was formerly voted on, say, the following designated free turnpikes : one from through to ; another from through to , etc.'] under the provisions of chapter 6, title 7, part second of the Revised Statues of Ohio. {Signatures.'] [Signatures.] 66. Notice and conduct of such election.— Notice of such subsequent election must be given, and the election must be conducted in all respects as prescribed in paragraphs 43-61, above. 1 67. When a tax may be levied, and how much. — Upon the location and establishment of any such turnpike road by the county com- missioners, and after an affirmative vote by the electors at any such election, they may appropriate and expend money in its construction as in their judgment may be necessary to the public convenience an ,1 promotion of the public interest, and may, for the purpose of aiding in the construction, and to provide a permanent fund for its maintenance and expense, levy annually, in addition to other road tax.s authorized by law, a tax for turnpike road purposes of not more than four mills on the dollar of valuation on the grand dupli- cate of taxable property in the county, and to continue su ch levy , 1 1 4765. CHAP. 6, 68-74.] FREE TURNPIKES, ETC. 163 from year to year, until the road or roads which have been com- menced are completed. 1 68. Restriction of the levy.— No such taxes can be levied on any lands which have heretofore been assessed for the construction of any free turnpikes, or improved road or roads, already constructed, or in the course of construction at the time of the levy of the tax- unless the amount that would be ratably levied upon such lands ex- ceed the amount of such assessment, and in such case such excess only can be levied and collected. 2 69. County bonds may be issued.— For the purpose of raising money necessary to meet the expenses of such improvements, the county commissioners may, if in their opinion the same be advisable, issue the bonds of the county, payable at such times as they may deem advisable, with interest not exceeding the legal rate per annum, payable semi-annually. These bonds can not be sold for less than their par value. 3 70. Form and sale of bonds.— For form of bonds, see paragraphs 174-182 of chapter 8, which may readily be adapted to this case; as to their sale, etc, paragraphs 9-17, chapter 27. 71. Records to be kept— The commissioners must cause to be kept, by the county auditor, a record of all the proceedings of the loca- tion, establishment, and construction of the road, together with ac- curate accounts of receipts and expenditures of money under the provisions of this chapter. 3 72. How payments made.— No money can be drawn from the treasury except to pay liabilities already accrued, and then only in pursuance of orders caused by the commissioners, whilst in session as a board, to be entered upon the record of their proceedings, and by orders drawn by the county auditor, upon the county treasury, in favor of the persons to whom such money is due. 4 73. For form of record, see paragraphs 257-263 of chapter 8. 74. Letting the work.— The work of the construction of such roads must be let publicly by the county commissioners to the lowest re- sponsible bidder, after due notice given of such letting by publica- tion in one or more newspapers published or of general circulation in the county, or by hand-bills, or both; for that purpose the com- missioners must cause the road to be divided into convenient sections, i §4766, 4768. 2 § 47G9. *{\ 4769, 4766. 4 §4770. 164 KOAD LAWS OF OHIO. [chap. 6, 75-77 and each section to be numbered from the county seat, or other point named as the place of beginning, toward the termination, and must let the same by sectious, with proper specifications of the various kinds of labor required on each section ; bidders must be required to state separately their bids for each classs of work, in such manner as the commissioners shall provide; and each con- tractor must be required to give bond, with sufficient sureties, for the performance of his contract, payable to the county commission- ers, for the use and benefit of the county, and with the necessary specifications and stipulations on the part of the contractor inserted therein. 1 75. For forms of notice, contract, specifications, bond, etc, adaptable to the above, see chapter 8. See also chapter 12. 76. Payments to be made on estimates. — In all cases the construc- tion of such roads must commence at the point of beginning; and no payment for work or material can be made except upon esti- mates made by the surveyor or engineer employed by the commis- sioners, and by him duly certified, of work actually done or mate- rials actually furnished, or both, and after reserving such per cent as may be fixed by the parties to the contract, to guarantee per- formance of the same. 2 For adaptable form of estimate, see paragraphs 131-136, chap, ter 12. 77. Compensation of viewers, etc. — The viewers, surveyor, or en- gineer, and their assistants, are entitled to receive the same com- pensation for their services required under the provisions of this chapter, as is now allowed by law in the construction of state or couuty roads. 3 »§4771. 2 H772. 3 1 4773. See par. 101, chapter, 1, and par. 269, chapter 2. CHAP. 7, 1-3] ONE MILE ASSESSMENT PIKES. 165 CHAPTER VII. ONE MILE ASSESSMENT PIKES. 1. Petition for a free turnpike, and notice of application. — Free turn- pike roads may be authorized, and commissioners appointed to lay out and establish the same, in the following manner: A majority of all the land-holders residing in the county, who own lands lying within the bounds of any free turnpike, as provided in this chapter, must present a petition to the board of county commissioners at any regular or special session, asking the appointment of commissioners to lay out and establish a free turnpike road between any points within such county, and stating therein that they desire the county commissioners to levy an extra tax, the amount of which shall not exceed ten mills on the dollar valuation in any year, on the lands and taxable property within the bounds of the road, and also the number of years they desire the levy to continue, not exceeding eight years; and they must satisfy the commissioners that public notice has been given by advertisement in some newspaper of gen- ral circulation in such county, of such intended application, for at least four consecutive weeks preceding the hearing of such applica- tion. 1 This petition must be entered upon the minutes of the proceedings of the board. 2 2. Certain phrases explained. — The words " bounds of the road," and " line of the road," wherever used in this chapter must be held to include so much laud on either side of such road as may be charged with such extra tax. 3 3. The line of what other road may be occupied. — It is lawful to lay out and establish such free turnpikes, in whole or part, upon the 1 § 4774, as amended, 79 0. L. 142. See par. 154, chap. 5. It will be noticed that the tax above mentioned is to be "on the lands and taxable property" (see also par. 64), while in chapter 8 such tax is on the land alone. See note to par 40, chapter 6. 2 2 4775. 3 § 4779. 166 EOAD LAWS OF OHIO. [CHAP. 7, 4-8 line of any state, county, or township road, or upon any two or more of such roads. 1 4. Apply to all one mile assessment pikes. — The provisions of this chapter extend and apply to all free turnpike roads heretofore built, now building, or to be built hereafter. 2 5. Who may sign petitions. — All petitions to the county commis- sioners to appoint commissioners to lay out and establish free turn- pike roads, and to levy an extra tax for the construction thereof, and all remonstrances against either, can only be signed by free- hold tax-payers, resident within the county in which the road is proposed or situated, owning lands within the bounds of the road, as described in paragraph 88 ; minors residing in the county, and owning lands in such bounds, can not be counted for or against the road or extra tax, unless represented by their legal guardian ; and all owners, either adults or minors, of any undivided estate, will only be entitled to one vote for or against the road or tax. 3 6. Appointment of road mmmissioners, etc. — As soon as the require- ments of paragraph 1, above, are complied with, the county com- missioners must appoint three judicious freeholders of the county to be commissioners of such free turnpike road. ' This appointment must be entered upon the minutes of the board. 4 7, 8. Form of free turnpike road notice. Notice is hereby given that a, petition will be presented to the board of commissioners of county, Ohio, at their next regular ses- sion, to be held on the day of , 1 8 — , asking that said board appoint commissioners to lay out and establish a free turnpike road, lying and being fully within said county, between the following points, to-wit: Beginning at the north-east corner of township, in the road ; thence running west about the north line of said township, about miles, thence south on the road known as the road, about miles, to the north line of 's farm; thence west along said farm's north line, and a continuation thereof, to \etc, as may be.~\ Said petition also prays that said board of commissioners of 1 g 4807. > \ 4312, as amended, 80 (). L. 222. The "free turnpike roads" mentioned here and in par. 1, ahove, mean only those included in this chapter. 3 1 4799. See par. 10 of chapter 2. * § 4775. CHAP. 7, H-21.] ONE MILE ASSESSMENT PIKES. 167 county, Ohio, levy an extra tax, the amount of which shall not exceed mills on the dollar valuation in any one year, on all the lands and taxable property within the bounds of said proposed free turnpike, and that said levy continue for years, if the cost and expense of building it be not sooner paid. L. M. et al., Petitioners. , 18—. 9. Proof of publication [same as in paragraphs 21-23 of chapter 2]. 10-12. Form of petition. To the board of county commissioners of county, Ohio: We, the undersigned, residents of said county, and land-owners within the bounds of the proposed free turnpike road, ask your honor- able body at its next regular session to appoint commissioners to lay out and establish, in pursuance of the laws relating to one mile assess- ment pikes, a free turnpike road between the following points, to-wit [Describe as in the notice ahove~\. We also ask that your honorable body levy an extra tax, the amount of which shall not exceed mills on the dollar valuation in any one year, on all the lands and taxable property within the bounds of said proposed free turnpike, and that said levy continue for years, if the, cost and expense of said turnpike be not sooner paid. , 18 — . [Signatures. ~\ 13-16. Form of remonstrance. To the board of county commissioners of county, Ohio: We are informed that a petition has been or is about to be presented to your honorable body, asking for the construction, in acccordance with the laws relating to one mile assessment pikes, of a free turnpike along the following route [describe the route as in the petition'] ; being the same turnpike petitioned for by A. B. and others. We, the undersigned, owners of land and taxable property within the bounds of said proposed improvement, do remonstrate against the laying out and establishing of said free turnpike, and against the ap- pointment of commissioners therefor. [Signatures.'] , 18—. 17-21. Form of entry of filing petition, remonstrance, etc., appointment and bond. In the matter of the V. and W. I Petition, etc., filed. — Road commission- Free Turnpike Road. \ ers appointed. [See note 1, page 22.] A petition was presented to this board, signed by A. B. and others, asking the appointment of road commissioners to lay out and estab- 168 ROAD LAWS OF OHIO. [chap. 7, 22-28. lish, in accordance with the laws relating to One Mile Assessment Pikes, a free turnpike along the route described in said petition, and that a tax be levied as stated therein, as will more fully appear for said petition, which is in words and figures as follows : [Here copy the peti- tion, including all signatures thereto.] An affidavit to the effect that notice of said application had been published as required by law, and a remonstrance, signed by R. S. and others, against granting the prayer of said petition, were also filed. [Then should come the following, which may, however, be a separate entry, if done at another session.'] Thereupon, said board proceeded to examine said petition, and to compare the names of persons signed thereto with the names of all land-holders residing within the bounds of said proposed improved road, and found that there are [state how many] such land-owners, and that [state how many] of them, being a majority thereof, have signed said petition. Said board was also satisfied, from evidence produced, that proper public notice of said application has been given by publi- cation in the , a newspaper of general circulation in said county, according to law. It is therefore ordered, that F. K., G. S. and H. T., three judicious freeholders of said county, be and they are hereby appointed road commissioners of said free turnpike road, under the name of [see par- agraphs 43, 44, below], to lay out and establish said road, according to law ; but they are required to enter into proper bond in the sum of dollars each, with [two, if so] sureties each, before entering upon their duties as such commissioners. 22. Notice of appointment, etc, to commissioners. — A certified copy of this entry must be furnished to the road commissioners, by the clerk of the board of county commissioners, upon demand therefor. 1 Although the law makes no specific provision as to notifying the commissioners of their appointment, a notice similar to the one given below should be sent to each of them by mail or otherwise. 2 23-28. Form of notice. Auditor's office, county Ohio, , 18 — . ToF. R., G. S. and II. T.: Gentlemen : By an order passed by the board of county commission- er- of said county of , on the day of , 18—, you were ap- pointed road commissioners to layout and establish, under the (me i§4775. 'For notice in analogous circumstances in case of other roads, see pars. 20-2::, chapter 1 ; pars. 56-58 and 45-52 of chapter 2; pars. 36-39 and 24-30 of chapter 8. CHAP. 7, 29, 30.] ONE MILE ASSESSMENT PIKES. 169 Mile Assessment Pike laws of Ohio, a free turnpike, petitioned for by an d others, to be known as the V. and W. Improved Road. You are each required by law to execute a bond [see paragraph 30] to the state, with two good and sufficient sureties, in the sum of $ , to be approved by the said board of county commissioners, conditioned for the faithful performance of your duties as said road commissioners, and to take an oath faithfully and honestly to discharge your duties, before entering upon the discharge thereof. You will please meet at said auditor's [or, commissioners'] office on the day of , 18—, at o'clock — m., where you will find proper blank bonds ready to be executed, and where, after being duly sworn, proper instructions will be given you as to your duties under said appointment. 29. Some remarks as to the foregoing.— In some counties, the bonds are sent to the commissioners, to be signed by themselves and sure- ties at their homes or elsewhere. But the more customary and the better practice, at least where the population is too great to permit the county commissioners to know personally all property-holders in the county, is to require the commissioners, with the sureties, to ap- pear before county commissioners, and there give an opportunity to ex; mine the sureties, etc., as to their property qualifications to act as such. It is well at least to have the road commissioners meet for instructions, etc., in the county auditor's or commissioners' office, to get the certified copy provided for above, and such other printed, written or verbal instructions as may be desired to give them, or as they may ask for; and for this reason, a day should be set for such meeting. The foregoing notice may be modified according to the practice adopted. 30. Bond and oath of road commissioners.— -The road commission- ers must severally execute a bond, payable to the state,, for the use of the county in which the road is located, with good and sufficient sureties, to be approved by the board of commissioners of tin county and in such sum as the board think proper, conditioned for the faithful performance of their duties as such road commissioners, and must also eacli take an oath faithfully and honestly to discharge their duties, before they will be authorized to do or perform any matter or thing under thi s chapter. 1 1 1 4780. 170 ROAD LAWS OF OHIO. [CHAP. 7, 31-41. 31-35. Form of bond. Know all men by these presents, that we, F. R. as principal, and G. L. and M. P. as sureties, are held and firmly bound unto the State of Ohio, for the use of county, in the sum of dollars, for the payment of which we jointly and severally bind ourselves, our executors and administrators. Done at , this day of , 18 — . The condition of the above obligation is such, that whereas, the above bound F. R. has been appointed by the county commissioners of county, Ohio, one of the commissioners of a free turnpike road in said county, known as the road. Now, therefore, if the said F. R. shall faithfully discharge all his duties and properly account for all moneys that may come into his hands as said commissioner, then the above obligation will be void; otherwise it will be and remain in full force. F. R., G. L., M. P. 36-39. Form of oath} — Attached to or indorsed upon the bond, or filed with it, may be the following certificate of the required oath : State of Ohio, county : F. R. being duly sworn, says that he will support the constitution of the United States, the constitution of the State of Ohio, and that he will faithfully and honestly discharge the duties of his office as road commissioner of the V. and W. Improved Road. F. R. Sworn to and subscribed before me on this day of , 18 — . [Signed by proper officer.'] 40, 41. Form of entry, approving bonds, etc. [Give caption as in paragraph 17. See par. 1, p. 417.] The bond of F. R., with G L. and M. P. as sureties, the bond of G. g t w ith and as sureties, and the bond of H. T., with and as sureties, each of said bonds being in the sum of dollars, conditioned according to law, being the bonds of said principals as road commissioners in said road improvement matter, were presented to this board, and were examined and accepted by this board and filed with the county auditor. Certificates of the oath of office of said road commissioners, showing thai they had been duly sworn, according to law, were also filed with said bonds. 1 gg 2, ■■',, 4780. CHAP. 7, 42-74.] ONE MILE ASSESSMENT PIKES. 171 42. Organization. — The road commissioners, after qualifying, as provided in paragraphs 30-42, above, must immediately meet and organize their board by choosing one of their number as president thereof. 1 43. Are a body corporate ; quorum; record. — The road commission- ers and their successors are declared by law to be a body corporate, under such name as the commissioners of the county may designate, for the purpose of carrying into effect the provisions of this chapter. 2 A majority of them is a quorum, and have power to transact any business and exercise any power devolving upon or intrusted to them by this chapter. They must keep a record of their proceed- ings, which must at all times be open for inspection by any person interested, or desiring to inspect it. 3 44. Name of, and of road. — There are many good reasons why each road should have a name of its own, by which it and all pro- ceedings relating to it can be conveniently identified. Its name can be selected as suggested in paragraph 10 of chapter 8. Its commis- sioners would then be appropriately named after it as " The Road Commissioners of the V. and W. Free Turnpike." 45. Suits by, and against; money collected, how used. — Such road commissioners must prosecute for all obstructions to the road, or for injuries done to it, or to bridges thereon ; the amount recovered in each case must be the amount of damages actually found by the court or jury, and the interest thereon; and in all cases the com- missioners have a right to sue, either before a justice of the peace, or in the court of common pleas of the county, as in other cases ; and the amount so collected in each case must be used for the benefit of the road, and be paid over to the commissioners. 4 46. Removal of road commissioners. — The board of county commis- sioners may remove, for cause, any or all of the commissioners of any free turnpike road, when petitioned so to do by a majority of the land-owners residing within the county, who own lands within the bounds of such road. 5 47. Filling vacancy. — On the removal of any such commissioner, the vacancy must be at the same time filled by the appointment of some other freeholder of the county. 5 The commissioners must 1 H''80. 2 g? 4775, 4795. 3 g 4781. For further powers, see par. 90. 4 §47i>5. 5 1 4775. 172 ROAD LAWS OF OHIO. [chap. 7, 48-54 appoint such person as may have been recommended by petition of a majority of the land-owners, if any such recommendation be so made. 1 48-50. Form of petition for removal. To the board of county commissioners of count}-, Ohio-. We, the undersigned, land-owners residing within the county, who own lands within the bounds of the V. and W. Improved road, respeet- fully petition your honorable body to remove from his position as a road commissioner of said road, for the following reasons: [Give the reasons; add, if so, and we ask that be appointed in the place of said ]. [Signatures.] 51-52. Form of entry of removal, etc. [Give caption, as in paragraph 17. above.] A petition having been presented to this board, signed by and others, asking said hoard to remove [state the matter asked for, and cause, as in the petition'] ; and the board having proceeded to examine [state the examination and finding as to land-owners, as in paragraph 20, above]; and the board [if so, having notified said accused of said charge and of the time of its hearing, and] having examined into said charge [if so, said being present in person, or, by counsel, or, both] ; and finding that said charge is well founded and true, said is therefore removed from said position [and is appointed to fill the vacancy caused by said removal; add, if so, in accordance with the petition filed with this board on , 18 — , praying for said appointment, signed by and others, being a majority of the land-owners within the bounds of said road.] 53. Other vacancies. — When any vacancy occurs in the board of road commissioners by death, resignation, -or otherwise, the county commissioners must fill it, when notified thereof. 2 54. Form of such appointment [Give caption.] , one of the board of road commissioners of said road, having died [or, resigned], as appears from [stale how, e. g., his letter of resig- nation, dated , now on tile with this board], is appointed to fill the vacancy so created. 55. Road to be laid out, and returns to county commissioners. — These road commissioners so appointed, and who qualify as provided in !§4775. 2 §4797. CHAP. 7, 55-59.] ONE MILE ASSESSMENT PIKES. 173 paragraph 30, must, within a reasonable time, proceed to view, lo- cate lay out, and establish such free turnpike road within the points named in the petition, and as soon thereafter as it can be done, re- turn to the board of county commissioners a map and profile ot such road, including upon the map, as near as can be done, the names of the land-holders whose property may be liable to be taxed for its construction, as provided in paragraphs 64, 65, below, together with a statement of the probable cost of building and completing the road 1 56. Employment of engineer and others.— The law does not ex- plicitly require the road commissioners to employ an engineer or surveyor, chain-carrier, and marker, as in the case of some other roads r but it provides that they " may appoints superintendent, and such other agents as they may deem necessary to carry into effect the provisions of this chapter." 3 57. Even if this language were not comprehensive enough to in- clude such engineer and surveyor and assistants, the implied and incidental powers of such commissioners would enable them to em- ploy assistants so obviously necessary to the fulfillment of their du- ties, as an engineer, chain-carriers, etc/ Besides, paragraph 159 below, provides for paying a surveyor, etc. 58 Such engineer, chain-carriers, and marker, if employed, should be sworn, and certificates of their oaths should be returned with the report, as in chapter 8. 59. As to compensation and damages to land-owners.— The law pro- vides only that all claims for damages arising out of the location of any free turnpike road must be settled in the manner prescribed in chap- ters 2 and 4. 5 It makes no provision in terms for claims for compensa- tion for land appropriated for the road. But as lands can not be taken from their owner without compensation, 6 it seems that the i \ 4776, 4780. As to width, at least of two mile assessment pikes, see Hays v Lewis, in note to par. 64, chapter 8. ' *See, for instance, par. 19, chap. 1 ; par. 35, chap. 2, par. 17, chap. 8. 3 2 4781. * See note to par. 74, chapter 4; also Burrows v. Cosier, 33 O. S. 567, 571-2. Where the power is general to perform, a resort to ordinary and usual methods or means comes within the scope of the power. Layet v. Gano, 17 O. 466, 473. _ n _ c , _ 5 § 48 03. 6 See pars, 72-76, chap. 2,. 174 EOAD LAWS OF OHIO. [CHAP. 7, 60-64 word "damages" must be construed to mean both "compensation and damages." 1 60. The road commissioners, acting as viewers, and the engineer, etc., should proceed, as directed in chapter 2, to lay out and estab- lish the road, prepare the required maps, profiles, reports, etc., so far as the provisions of that chapter are applicable. As to profile, the analogous course in chapter 8 may no doubt also be followed. As to land-owners' claims, appeals, etc, chapters 2 and 4 must be followed, in so far as no provision is made in this chapter. 61-63. Form of report of road commissioners. [Follow the form, beginning with paragraph 52 of chapter 8, ?naking such slight modifications as the facts require, to the paragraph beginning ivith the words, "We find that, in our opinion," which paragraph omit; and also omit such other matter, if any, as is not applicable to the case in hand. The first paragraph should show that an engineer, as well as chain-carriers, etc., were selected. The engineer should attest the profile and map, but should not sign the report.^ 2 64. Levy of taxes to construct and repair. — The board of county commissioners must immediately thereafter transmit to the auditor of the county said map, profile, and statement as returned to them by the road commissioners, and must at the same time direct the auditor to levy upon the grand duplicate of the county, for the pur- pose of constructing, improving, and repairing such road, the amount of the tax, and for the number of years petitioned for; and the auditor must enter the same upon the duplicate for collection, on all the lands and taxable property within the bounds of the road, as laid out and established, in the same manner and subject to the same penalties and forfeitures as other taxes are entered thereon for purposes of collection. 3 1 See note to par. 74, chapter 4; also note 2, page 7. For form, see p. 238. 2 It has been the practice in some counties to make only a "statement of the probable cost of building and completing the road," which is all that the language of the statute (see par. 55) seems to require. But analogous pro- ceeding in similar cases in other roads all require fuller reports, and such re- port is necessary to get enough in the record to show that all necessary steps were taken. There should be something to show that the engineer who pre- pared the plat, etc., was appointed to do that work, and what steps, if any, were taken by land-owners and others in reference to damages, etc. 1777, as amended, 80 (). L. 222. chap. 7, 05-69.] one mile assessment pikes. 175 65. But no such tax can be levied for an amount or for a term of years greater than that set forth in the petition, unless the petition be renewed, or the county commissioners order an extension of the levy for the purposes stated in paragrrph 69. When an extension of the tax is granted on petition, such tax must be levied for any number of years that may be set forth in the petition as, when added to the first levy, will not, in the aggregate, exceed ten years. 1 66, 67. Form of entry as to report, statement, etc. , and ordering tax. \_Give caption as in paragrrph 17.] The road commissioners heretofore appointed in said matter, this day filed their report, and statement of probable cost of building and completing said road, and also a profile of said road and a map of tbe lands within the bounds of said road, showing the names of the land- holders whose lands are liable to be taxed for said road, with a list of said lands and land-holders. Thereupon, it is ordered that said map, profile, report, statement, and list be transmitted to the county auditor, and that said auditor levy upon the grand duplicate of the county, according to law, for the pur- pose of constructing, improving, and repairing said road, the amount of the tax and for the number of years, petitioned for in said matter. 68. Contract, specifications, etc. — The law does not provide just how the road commissioners must proceed in the actual work of making the road. But without question, the best and cheapest, and per- haps the only practicable, manner is for them to have the work done by contract, after proper specifications have been prepared and due advertising of the letting of such contract has been had, as pro- vided in chapter 8. For form of contract, etc., see paragraphs 117— 126 of chapter 8, and for specifications see pp, 220-6, It is true, however, that they may probably proceed to build it themselves, employing superintendents, etc., to oversee the work. See paragraph 56 of this chapter. 69. Extension of taxes. — At any time when the county commission- ers shall deem it necessary, for the purpose of providing the means for completing the road, and liquidating any indebtedness incurred on its account, they may continue the tax originally levied for con- structing it for a period not exceeding, in the aggregate, five years, x § 4777, as amended, 80 O. L. 222. See note 1 to par. 10G of chapter 2. 176 ROAD LAWS OF OHro. [chap. 7, 70-77. in addition to the levy made on petition, as provided in paragraph 64. J 70-74. Form of application for the extension of tax. , 18—. To the board of county commissioners of county, Ohio : The undersigned, road commissioners of the V. and W. Free Turn, pike, in said county, hereby petition your honorable body to continue the tax heretofore levied for the construction of said free turnpike, for a period not exceeding years, or less, if sooner paid out, and at a rate not exceeding mills, for the purpose of providing means for completing said turnpike, and liquidating the indebtedness incurred on account thereof, for the following reasons : The amount to be realized from the sale of bonds issued in anticipa- tion of the tax already levied, will amount to $ , and no more: while the total cost of said trunpike, including interest on bonds, when completed, will be at least $ , leaving a deficiency of $ or more, to be provided for by an additional levy, and the issue of bonds accord- ing to law. F. R., 6. S., H. T., Road Commissioners. 75, 76. Form of entry, extending tax. Application having been heretofore made by the road commissioners of the V. and W. Free Turnpike to this board for the extension of the special tax heretofore levied for the construction of said turnpike, for the reason that the fund realized from the sale of bonds issued in an- ticipation of said tax is insufficient to complete said road and pay the indebtedness incurred on account thereof, this board, having duly con- sidered said application and all the evidence adduced relative to the necessity of said extension, finds that it is necessary to extend said special tax for said purpose at the rate of mills on the dollar for the period of years, in addition to the tax heretofore levied as aforesaid. It is therefore ordered by the board that said special tax be continued at the rate of mills on the dollar on all lands and taxable property within the bounds of said road for a period of years, in addition to said levy heretofore made, and it is further ordered that the county auditor enter the same upon the duplicate for collection according to law. 77. Abatement of tax. — If at any time after the first levy is made, the commissioners of any free turnpike road are satisfied that the road can be built with a less sum than is provided in paragraphs 64 1 § 4812, as amended, 80 O. L. 222. CHAP. 7, 78-85.] ONE MILE ASSESSMENT PIKES. 177 and 65, the auditor must, on the order of the commissioners of the road, reduce the extra tax, or abate it entirely. 1 78-81. Form of statement as to. To the board of county commissioners of county, Ohio: We, the undersigned, road commissioners of the V. and W. Free Turnpike, are satisfied that said road can be built for a less sum than was originally provided for, for the following reasons: The amount realized for the sale of bonds issued in anticipation of tax already levied, will amount to $ , while the total cost of turn- pike, including interest on bonds, will be no more than $ , leaving a surplus of $ . [Signed ly road commissioners.] 82-83. Form of entry, abating tax. The road commissioners of the V. and W. Free Turnpike, having represented to this board that the amount realized from the sale of bonds issued in the matter of said road will amount to $ , and that the total cost of said turnpike, including interest on bonds, will be no more than $ , leaving a surplus of $ , and upon investigation we find this to be true. It is therefore ordered, that the auditor reduce the tax originally levied for said turnpike to mills per year for the remaining period of said levy [or, that the auditor abate the tax originally levied for said road]. 84. Who to be taxed pro rata. — When any of such freeholders have previously made, or have been previously taxed to make, any free turnpike already completed or in progress of completion, they can only be taxed pro rata for the making of the remainder of the turn- pike, or its continuance. 1 85. Wlio to be exempt, or taxed pro rata. — When any of such free- holders, or those from whom they derive their title, have, before the levy of said tax, improved at their own expense, by macadamizing or graveling, any part of the line of the proposed free turnpike road adjacent to their lands, if by such improvement such portion has been made and maintained so as to be at that time wholly fit for a free turnpike road, or if by such improvement such portion is in part only suitable for a free turnpike road, they must be entirely exempt, as to lands and other property on either side of and oppo- ^4778. 12 178 ROAD LAWS OF OHIO. [chap. 7, 86-88 site to such improved portion, from the payment of the extra tax mentioned in paragraphs 64 and 65, or have credit upon that extra tax iu the proportion that such labor performed bears to the aver- age amount of labor required to construct such part of the entire line of such proposed free turnpike road. 1 86. How amount of exemption determined. — Such pro rata ex- emption or credit must be determined by the auditor and the com- missioners of the proposed free turnpike road, at any time before payment of such extra tax, upon the application of any person in- terested ; but such determination may be reviewed and corrected by the court of common pleas, upon the petition of any person claiming such pro rata reduction, exemption, or credit, and upon such evi- dence as may be produced upon the hearing. 2 87. How extra tax collected. — The county treasurer must collect the extra tax in the same manner as state and county taxes are col- lected. 2 88. Upon what property taxes to be assessed. — Extra taxes, when levied as hereinbefore provided, must be on real and personal prop- erty within one mile on each side of the free turnpike road, except Avhen any free turnpike road in process of construction crosses a free turnpike road, either completed or iu process of construction, under and by virtue of any of the road improvement or free turnpike laws, in which case such lands and personal property as lie within one mile on either side of where such free turnpike roads cross each other shall be assessed and taxed, in proportion to the benefits that may be derived by the owners of the land and personal property from the construction and use of such free turnpike roads ; except, further, that when any mad improvement, or free turnpike road, built and completed under any of the turnpike laws, begins or ter- minates in the proposed free turnpike, or where any of such roads, or any toll-road, or unimproved state or county road, being uncon- nected with the same, runs upon either side of such proposed road, within less than two miles, then the taxes can only be levied upon such lands and personal property as lie within one-half the distance of such roads. 8 1 24778. 2 g 4779. 3 \ 4786. Under amended section 8 of the act authorizing county commis- sioners to lay out and establish free turnpike roads (73 O. L. 98), the pro- CHAP. 7, 89.] ONE MILE ASSESSMENT PIKES. 179 89. No division of territory or taxation to be made.— No division of territory, or division of taxation of lands or personal property, can be made' with any other road improvement, free turnpike road, or state or county road, except as herein provided for, nor with any township road ; but if the road commissioners report to the county commissioners that the extra taxes levied within the bounds of the road are insufficient to make a good and substantial road, the county commissioners, if in their opinion the public interest re- quires it, may order the road commissioners to extend the bounds of the free turnpike road to one mile on either side of the same, vision that "extra taxes when levied shall be on all real and personal prop- erty within one mile on each side of said free turnpike road," does not in- clude land within one mile as measured from the end of the road, but only as measured from either side of the road, and between the termini of the same. Lear v. Halstead, 00 O. S. 00. Where an unimproved county road runs upon either side of a proposed free turnpike road, within less than two miles thereof, although a township or county road may extend from such unimproved county road to the pro- posed turnpike road, extra taxes for the construction of such turnpike road can only be levied upon such lands and personal property as lie within one- half the: distance of such county road. lb. Where, upon a division of territory under amended section 8, the extra taxes levied within the bounds of a free turnpike road are insufficient to make a good and substantial road, the county commissioners will not have jurisdiction to order the road commissioners to extend the bounds of such free turnpike road to one mile on either side of the same, unless a majority of the resident land-owners, owning land within the bounds of the territory as proposed to be extended, shall have signed a petition there- for, lb. Where no jurisdiction is thus acquired by the county commissioners to or- der an extension of the bounds of the turnpike road, a resident owner of land that lies within the bounds of the territory as proposed to be extended, and that has been taxed for the purpose of constructing the road, will not bo estopped from objecting that the tax was illegally assessed, if such owner did m>t participate in causing the improvement to be made, and had no knowledge, until after the completion of the improvement, that there bad been no sufficient petition for extending the bounds of the road, and it does not appear that any special benefit accrued to the owner's property from such improvement. lb. County commissioners can appoint commissioners for a free turnpike (act of 1867, section 6, amended 1868), only on petition of a majority of land- owners' within a mile on each side, or half way to any macadamized road 180 ROAD LAWS OF OHIO. [CHAP. 7, 90-94 when a majority of the resident land-owners, owuiug land within the bounds of the territory proposed to be extended sign a petition therefor; but if a turnpike road runs upon either side of such free turnpike road, within less than two miles, the taxes must be levied upon such lauds and personal property as lie within one-half the distance of such roads. 1 90. Subscriptions, donations, releases, etc., for road. — The road com- missioners may receive subscriptions and donations in money, or real or personal property, which must be applied to the construction of the road. 2 91. They may receive donations of land to aid in the construc- tion of the road, and sell and convey the same in fee-simple, and they may take releases of the right of way. 3 92. Such subscriptions and donations of money or personal prop- erty may be made in the same way as in other matters, by i in medi- ate payment of the money or delivery of other personal property, or by signing a subscription list or other written agreement to give in the future. (For adaptable form, see pars. 35-37, page 158.) Donations of land intended for sale by the commissioners, and upon which the road will not be built, must be by deed, duly executed, witnessed, and acknowledged so as to release the wife's dower or husband's curtesy, if subject thereto, remembering that, as these com- missioners are a corporate body (see paragraph 43), land must be conveyed to these commissioners as such, their successors, not their heirs. They, as such commissioners, must sell these lands, if they be sold. 93. Release of the right of way may be in the form of deeds, but the wife need not sign it, as a widow is not entitled to dower in grounds which is within two miles, but the distance of land-owner is not reduced by- there being mud roads within two miles. [Ham. Uist. Ct.] State v. McCly- rnon, 1 Bull. 116. The legislature, in the exercise of the general power of taxation, as dis- tinguished from the power of local assessment, may create a special taxing rict, without regard to municipal or political subdivisions of the state, and may levy a tax on all property within such district, by a uniform rule, accordidg to its true value in money, for the purpose of defraying the ex- penses of constructing and maintaining the public roads therein. Bowles v. State, 37 O. S. 35. l l±m. 2 §4782. 3 4785. CHAP. 7, 94-9G.] ONK MILE ASSESSMENT PIKES. 181 given for roads or similar public uses. 1 For forms, see paragraphs 18-25, chapter 6. 94. Contracts, gravel, stone, implements, etc., for making and main- taining road. — The road commissioners may make contract for constructing the road in a solid and durabl i manner, and keeping the same in repair. They may open and finish the road in the first instance, al mg such portions of its line as are available for travel or transportation. They may purchase and procure all necessary im- plements and fixtures to preserve the road, and contract for and purchase such stone, gravel, and other material as may be necessary for its construction and repair; and if the commissioners and own- ers of such material can not agree on a price deemed fair and reasonable, the commissioners may apply to the judge of the pro- bate court of the county to appoint appraisers to assess the value of such material. 2 95. The provisions of law, in this chapter and in chapter 8, as to appraisers to assess the value of such road material, are so nearly alike that the forms found in paragraph 189 and below it, of chap- ter 8, may, with slight modifications in some cases, be used here. The notice there provided for is omitted here, but the court may, and should, require such notice here as well. See note 1, page 82. 96. Assessment of damages for material taken, etc. — On the filing of the application mentioned in paragraph 94, above, the probate judge must appoint three disinterested freeholders, who, after be- ing duly sworn to assess impartially the value of the material, or any part of it, must enter upon the premises of the owner of such materials, and assess their value, and the damages that will accrue to the owner by their removal through his premises, and within ten days after appointment return their award to the court. The pro- bate judge must then require the commissioners to pay for or give security 3 for the payment of all material to be taken, and damages done to the owner of the premises, and in ten days after the return of the award, on application of the commissioners, furnish them a copy of it. They may then enter upon the lands, either inclosed or uninclosed, and remove such stone, gravel, or other material, un- 1 Gwynne v. City, 3 (). 24, 25. See par. 50, chapter 1. 2 § 4782. 3 In chapter 8 no security is provided for, payment being required. See par. 225 of that chapter. 182 ROAD LAWS OF OHIO. CHAP. 7, 97-108 less an appeal has been taken, as provided in paragraph 109 of this chapter. 1 97, 98. Form of the order in this case may be as follows : \_Give caption, as in preceding ordtrs.~\ This day the appraisers heretofore appointed in this proceeding re- turned and filed their award herein, appraising the material wanted by the commissioners of said road at $ , and the damages to accrue to L. 0. by the removal of said material through his premises, at $ ; and said appraisement is hereby approved and confirmed. Said com- missioners are hereby required to pay for or give security for the pay- ment of all material to be taken, and for said damages, in the sum of dollars, to the approval by this court, within days. 99-104. Form of the bond may be as follows : Know all men by these presents, that we, , , and , as commissioners of the V. and W. Free Turnpike Road, in county, Ohio, as principals, and and , as sureties, are held and firmly bound unto L. O. in the sum of dollars, for the payment of which we hereby bind ourselves. Signed by us at , this day of , a. d. 18 — . The condition of this obligation is such that whereas, said L. 0. is the owner of [state what materials^ wanted by said commissioners for use on said road, but as to the price of which they and said owner could not agree; and whereas, certain proceedings have been had in the pro- bate court of said county, which resulted in the appraisement of said material at $ , and finding that the damages that would result to said L. 0. from the removal of said material from his premises at $ , being a total of— — dollars, and said court having required said com- missioners to pay or to give security to said L. 0. for said sum of dollars, as payment in full for said material and damages. Now, therefore, if said commissioners shall pay said damages and pay for all of said material they take, according to said appraisement and the requirement of said court, within days after their taking of said material, then these presents shall be void, otherwise they shall be in full force and effect. [Signed by road commission! rs and surety or sureties.^ 105-108. Form of order, approving hand, ordering costs paid, and as to notice of appeal. [Give caption.^ This day came the commissioners of said road, and presented for ap- 1 2 4783. 2 See note 2, page 2. CHAP. 7, 109-112.] ONE MILE ASSESSMENT PIKES. 183 proval their bond in the sum of dollars, with as surety, made to L for the payment of material and damages, as specified , a previous order of this court, which bond and surety are hereby ap- proved. , It is ordered that said commissioners pay the costs of these proceed- ing, taxed at $ , within days. _ Thereupon, L. O. [or, said commissioners, by G. and M., their attor- neys, if so] gave notice of appeal to the court of common pleas. 109. Appeal from the assessment— An appeal from the decision of the appraisers may be taken by either party to the court of common pleas, within twenty days after the rendering of the award, upon the appellant entering into an undertaking to the adverse party, in a sum not less than fifty dollars, and in all cases not less than double the amount of such award. 1 110. The foregoing paragraph contains the only provisions relat- ing to such appeals found in this chapter. It will be noticed that no & notice, condition of bond, sureties, etc., are provided for. But as some course as to these must be presumed to be meant, the antil- ogous case more fully provided for in chapter 8, paragraphs 229 and following, may be followed. 111. How township road tax and labor applied.— So much of the taxes annually levied for road purposes by the trustees of townships, which may be collected within the bounds of any free turnpike road, including the two days' labor authorized by law, must be applied in the construction and repair of the road, under the direction of the road commissioners, or their agents, until the road is completed. 2 112. When trustees fail to apportion road labor.— If, before the com- pletion of the road, the trustees fail to direct the supervisors of any road district, the whole or any part of which is within the bounds of any free turnpike road, to apportion the labor provided for in the preceding paragraph, annually, before the first day of May, and to give notice thereof in writing to the proper commissioners, then all persons liable to do two days' labor, annually, on the public highways, residing within the bounds of any free turnpike road, must do that labor under the direction of the commissioners or agents of such road. 3 ! „ 47g4 2 1 4788. See chapter 5. 82 4789. 184 ROAD LAWS OF OHIO. [CHAP. 7, 113-116 113. WJien road work to be done. — All such persons must perform such labor, after being notified three days previous to the time of doing such labor, between the first day of April and the first day of July ; but they may pay to the superintendent the sum of three dollars, in lieu of said two days' work, if paid when notified to do the work ; and in case of refusal or neglect to do so, the person so offending will be liable to pay a fine of one dollar, and will further be liable, in case of non-attendance, to the amount allowed for two days' work> to be collected by the road commissioners, in the same manner that supervisors are authorized to collect in similar cases. 1 114. Road tax paid into county treasury to be refunded. — So much of the taxes mentioned in the preceding paragraph as is not dis- charged in labor, and which is paid into the county treasury, must be paid by the treasurer, upon the warrant of the county auditor, to road commissioners, to be expended by them in constructing such free turnpike road ; when two or more free turnpike roads cross each other, the county commissioners of any county through or in which any such roads, or any part thereof, may be located, may make such equitable division or apportionment of the taxes, other than extra taxes, among such roads as they deem proper, these taxes to be dis- charged in labor, under the direction of the road commissioners, or paid to them in money, as provided in the preceding paragraph. 2 115- Certificates of labor receivable for road tax. — Certificates from the road commissioners to persons owing any free turnpike tax, for labor performed in discharge of the same, are receivable by the treasurer of the county, at the December collection of taxes, in pay- ment of such tax. Such certificates must specify the amount of tax so paid, and must in no case exceed the amount of extra tax charged against such person upon the duplicate of the county. 3 116. Road bonds, etc. — The commissioners of any free turnpike road, whenever they deem it necessary for the purpose of construct- ing a free turnpike road, completing the same, or liquidating any indebtedness on account thereof, are authorized to issue bonds, pay- able at the county treasury, in installments, at intervals not exceed- in-' the number of years for which the special tax provided for in this chapter has been levied, bearing interest not exceeding six per 1 g 4790. See par. 20, chapter 5. 2 \ 4791. B jl 1813. CHAP. 7, 117-122.] ONE MILE ASSESSMENT PIKES. 185 centum, payable semi-annually. These bonds can not be sold for less than par, and must be registered by the county auditor, pre- vious to their issue, in a book by him kept for that purpose ; such registry must show the number of each bond issued, the amount for which issued, the rate of interest which it bears, and when the same is payable. The extra taxes levied under the provisions of this chapter must be divided in such manner as to meet the payment of the interest and principal of the bonds, and when collected, the money arising therefrom must be paid to the road commissioners, by the treasurer of the county, upon the warrants of the county audi- tor ; and the road commissioners must apply the money first to the payment of their bonds and interest, and next to the construction and improvement of such free turnpike road, and in discharging any indebtedness incurred on its account. 1 For further important provisions applying to these and other bonds, see paragraphs 9-17 of chapter 27. 117. For form of bond and coupons, see paragraphs 174-182 of' chapter 8. 118, 119. Form of bond register . — Such register can best be in the form of tabulated pages, with printed headings for its columns, as follows : REGISTER OF BONDS ISSUED BY THE COMMISSIONERS OF THE V. AND W. FREE TURNPIKE. Num- ber. Date of issue. To whom issued. Dol's Cts Kate Of Int. When due. Where pay- able. When paid ney, as shown by their valuation container! in the county duplicate. 1 173. When different rates have been authorized. — When, by the laws in force immediately preceding the time when the right to levy taxes for the benefit of any such road ceased, different rates of tax- ation were authorized upon the lands adjacent to or lying near any such road, according to their proximity to such road, the amount authorized to be levied by paragraph 172, above, must be so assessed upon those lands as to preserve the same relative proportions be- tween the taxes mi the several tracts as formerly; but the county commissioners m iy in their discretion divide the aggregate of such indebtedness into installments, not exceeding five in number, and order that one of those installments be assessed and collected annu- ally; and the amount so assessed must be collected in the same manner as state and county taxes. 2 174. Orders to be paid pro rata.. — Immediately after the settle- ment of the county treasurer with the county auditor in August of any year, next after that in which any assessment has been made, as provided in paragraphs 172 and 173, above, the county auditor must proceed to ascertain the net amount of money collected on account of the indebtedness of such free turnpike road company; and if the amount so collected is sufficient: to pay the whole of such in- debtedness, he must proceed to pay all orders of such road company on presentation, by his warrants drawn on the county treasurer, payable out of the proper fund, and must cancel such orders, and keep them on file in his office; but if the net amount so collected be insufficient to pay the orders in full, or the amount of indebted- ness has been ordered to be collected in annual installments, the county auditor must divide the net amount collected prorata among the holders of the orders, taking up and canceling the original or- ders, and issuing new orders for the balances unpaid.' 1 175. Special taxes to be applied to debts. — When a free turnpike road is finished according to law, with an outstanding debt unpro- vided for, and the right to levy special taxes for the benefit of such road has not ceased, such special taxes, when collected, must be applied exclusively to the payment of such debt, till the same is paid in full.' 1 §4815. 2 g 481G. 3 H817. 4 g 4818. 196 ROAD LAWS OF OHIO. [CHAP. 7, 176-181 176. Road may be transferred to turnpike company. — The county commissioners, whenever in their opinion the public interest will he subserved thereby, may surrender to any turnpike company any free turnpike or other road in the county, and direct that the taxes levied and collected for such road, and not otherwise appropriated by law, he paid over to such turnpike company, to be expended in constructing or repairing the* road, to construct or repair which the same were levied. 1 177. Tax-payers to hold stock. — Any turnpike company receiving such surrender must issue to the persons upon whose property taxes have been levied to construct or repair such road, certificates of stock for the amount of taxes by them respectively paid, upon which they will be entitled to dividends, pro rata, as other stockholders may be, upon their stock. 2 178. Toll-gates and toll. — When three consecutive miles of such road have been constructed and finished, according- to law, the di- rectors of such company may establish a toll-gate thereon, and for every additional five miles finished as aforesaid an additional gate, and may demand and receive tolls thereat, at rates not exceeding the rates allowed by law to other companies. 3 179. Elections of directors. --In elections for directors of such com- pany, each stockholder must be allowed one vote for each share of stock by him held, and one vote for each fraction greater than half a share.* 180. Villages may assist in constructing sucli roads. — Councils of villages are authorized to levy a tax to construct free turnpike n ads, or a part thereof, in counties wherein such villages are situate, and terminating [in] or running through such villages. 5 181. May issue bonds; sale of. — For this purpose, such councils are authorized to issue the bonds of the village, payable with legal in- terest at such times as the councils may deem advisable. Such bonds can not be sold for less than their par value. 6 i ? 4819. ^ g 4820. 3 § 4821. For such rates, see pars. 53-57 of chapter 11. See par. 161 of this chapter, and note thereto. ' ^ 4822. 6 § 4823. 6 § 4823. For provisions applicable to such bonds, see pars. 9-17 of chap- ter 27. cnvr. 7, 182-186.] one mile assessment pikes. 197 182. Tax to be submitted to electors. — For the purpose of paying such bouds, and the interest thereon, as the same become due, the councils are authorized to levy a tax upon the taxable property of such villages sufficient for the purpose, not exceeding five mills on the dollar in any year; but such tax can in no case be levied, nor can such bonds be issued, until at some regular election, held in such villages, the majority of the qualified electors thereof approve the tax. 1 For similar elections, see paragraphs 43-61 of chapter 6. 183. May be paid from fund* on hand, when. — In case the amount to be appropriated for any one road does not exceed the sum of five hundred dollars, the councils may appropriate and apply the same in money for said road improvement, out of any money on hand, or funds not otherwise appropriated, without issuing bonds or levy- ing a tax, such appropriation to be made by an ordinance passed for the purpose, specifying particularly the amount, and for what road appropriated. 1 184. When road may be extended to village. — When a free turnpike road in progress of construction terminates within one mile, by way of a public road, of any such village, the council of such village has the same power to levy a tax and issue bonds to aid in the con- struction of such free turnpike road that it would have if the road terminated in the village; and if the county commissioners having in charge the construction of such road accept such bonds, such free turnpike road must be deemed to be extended, by way of the public road before mentioned, to the corporate limits of the village ; and the commissioners must make and publish an order to that effect, and thereupon the commissioners must improve such extension of such free turnpike road, in the same manner as the other parts of it. 2 185. Time for construction extended. — When the commissioners of a free turnpike road fail, either for want of time or sufficient means, to complete such road, the county commissioners of the county or counties through which it is located may grant such extension of time for its completion as may seem reasonable and proper to them. 3 186. County to pay for bridges, when. — In all cases of indebtedness for the erection of bridges upon the line of such free turnpike roads, the county commissioners may discharge such indebtedness, from 1 H824. » 24825. 3 § 4826. 198 ROAD LAWS OF OHIO. [chap. 7, 187, 188 the treasury of the county in which such bridge or bridges may be located. 1 187. Vacation of free turnpike road. — When any part of a free turnpike road becomes useless, or remains unopeu for the term of five years, after it has been established, the commissioners of the county may, on application of twelve freeholders of the county, ap- point three disinterested freeholders to view such portion of road and report whether such road is useless, or whether it would be of public advantage to vacate it ; and if such freeholders report in favor of such vacation, the county commissioners may order the road to be vacated. 2 188. The same proceedings must be had on such application as are provided on applications to vacate county roads. 3 1 1 4826. 2 §48^8. 3 §4828. See par. 264 of chapter 2 Notes for pp. 193, 194. — The road commissioners have no power to refund or remit taxes erroneously assessed upon property not within the limit of the road improvement. The last clause of § 4810 refers to reducing or abat- ing levies as authorized by § 4778. The county commissioners have power to relieve such property from all future assessments. Under § 4777, the board of county commissioners direct the levy to be made, and the auditor is required to enter the same upon the duplicate for collection, but only on the lands and taxable property within the bounds of the road. The fact that the "levy in previous years has been entered upon the duplicate on property not subject thereto does not make the levy thereon legal, and the county com- missioners have power to direct that such illegal levy he omitted in all future duplicates. If entered on the duplicate, collection thereof could not he en- forced, and the tax-paver would also have a remedy by injunction. There remain-, however, the question, can the county commissioners order money heretofore paid by reason of such levy to be refunded? If so, their author- ity must be derived from \ 1038. Under the decisions of the .Supreme Court in the cases reported in SI O. S. 271. 38 O. S. 560, and 39 O. S. 168, they propably have not power to do this, unless the levy was entered against said lands merely by a clerical error, and such clerical error must have been made by the ofheer who entered it upon the duplicate. If the plats, etc., urned by the road commissioners included this land within the bounds of tl e road, the money can not be refunded. In such case the tax-payer's only remedy is an appeal to the courts, where the real question will be whether the payment was voluntary. Opinion of Lawrence, Attorney-General (1884). Ste par. CHAP. 8, 1.] TWO MILE ASSESSMENT PIKES. 199 CHAPTER VIII. TWO MILE ASSESSMENT PIKES. 1. County commissioners may improve roads, how, etc. — The county commissioners of any county may, as provided below, lay out and construct any new county road, or improve any state, county, or township road, or any part of it, or any free turnpike road, or any part of it not completed, by straightening or altering it, and by grading, paving, graveling, planking, or macadamizing it, and by draining it in any direction required to make the most convenient and sufficient outlet. 1 ! $ 4829. This legislation is constitutional. It does not provide for a tax, but for an assessynent. State v. Comm'rs Warren Co., 17 C). S. 558; Reeves v. Treas. Wood Co., 8 0. S. 333; Hill v. Higdon, 5 O.S. 243; Scovill v. Cleve- land, 1 O. S. 12G; Bonsall v. Lebanon, 19 O. 418. Commissioners can not lay out or improve a road more than sixty feet nor less than thirty feet wide. Hays v. Lewis, 28 O. S. 326; but where land is do- nated it is otherwise. lb. See also note to par. G5. Concerning the cost, advantages, etc., of improved roads. — The following, compiled from information furnished by Col. W. L. Curry, auditor of Union county, O., for eight years, may prove interesting and useful here: Union county has now constructed about one hundred and sixty improved roads, all but two or three of them being ''two mile assessment pikes," with an aggregate mileage of about six hundred miles, without a single toll-gate. All of the main roads, and many of the cross roads, are now graveled or macadamized. Commissioners and engineers have learned by many years experience that the first requisite is to make a good grade and good drainage, and this part of the work is very closely guarded by the superintendent and engineer. Many of the roads are constructed on the "double track plan," that is, one track of gravel and one of dirt, the dirt road being used during the spring, summer and fall, and the gravel track in the winter, thus saving the gravel track, which will last many years longer. As there is but little difference in the cost of constructing the single and double track roads, the matter is 200 ROAD LAWS OF OHIO. [CHAP. 8, 2 2. May vacate certain roads for this purpose. — For such purpose they may, upon further petition, when they deem it expedient, always left to the choice of the petitioners, some preferring single and others double track. The expense of constructing gravel roads depends largely on the distance the gravel lias to be hauled. Eoads now cost from $1,200 to $1,803 dollars per mile, exclusive of bridg- ing, all governed by the distance gravel has to be hauled. Gravel in the pit costs an average of $125 per mile In counties that have no gravei, but have limestone, roads can be con- structed from crushed stone at a cost but little above that of gravel. Some contractors have used, from choice, such stone instead of the gravel they had contracted, to use. On the usual gravel roads we put seven cubic yards of gravel to the rod, . but of the crushed stone we use about 4\ cubic yards to the rod, which makes a very material difference in the expense of hauling and spreading. Cross- roads, not much traveled, need less. A number one rotary crusher with ten horse-power engine will crush sixty cubic yards of ordinary quarry limestone per day, and such stone will cost, loaded on wagon, about eighty cents per cubic yard, counting every thing. The pikes in this county have cost more than $1,000,000, but the land- owners have been repaid with large interest by the increase in the value of real estate. For one million dollars expended for pikes the value of real estate has been increased two millions. Lands sell for about forty to fifty per cent more after the road improve- ments than before, and many citizens of old and richer counties are coming in and purchasing farms in this county, their reason being that they wish to own land in a county blessed with good roads. New dwellings are built, barns are painted, and the whole county is improved and beautified wher- ever there are good pikes. "When the gravel road question was first agitated in this county, the enter- prise was bitterly opposed by some of the heaviest tax-payers and best citizens, as they argued (and honestly, too), that "first, there was no gravel in the county to build the r<>ads; and second, if there was material, it would bankrupt the county to build them," but experience has demonstrated the fallacy <>f their argument. Those who were the strongest opponents ol gravel rends in the beginning, arc. now their most enthusiastic advocate-. Horseflesh and breakage of vehicles are saved, and many other obvious advantages have accrued. Our pikes are paid for. and the county is much richer to-day than when we began to build them, and we have an abund- ance of material left. Years ago the citizens of Marysville shipped gravel fifteen miles by rail- road from another county, to put on our streets, and since that time they CHAP. 8, 3-5.] TWO MILE ASSESSMENT PIKES. 201 vacate any state, county, or township road, or any part thereof, or any free turnpike road, or any part thereof not completed. 1 3. May unite roads.— They may improve several roads or parts of roads, or free turnpike roads, or parts thereof not completed, when they can be united in one continuous road improvement. 1 4. As to unfinished turnpikes, plank-roads, etc.— They may improve by grading, graveling, or macadamizing, any unfinished turnpike road, plank-road, or other graded road of five degrees or less, other than such as charge and receive tolls; and, when the grading has been already done, and the bridges and culverts already built, one- half of the cost of such improvements must be assessed upon the land-owners along and adjacent to the line of the road, as provided in this chapter, and one-half on the grand duplicate of the county. 2 5. Petition for the improvement and bond.— A petition, stating the kind of improvement prayed for, and the points between which the improvement is asked, signed by five or more of the land-holders whose lands will be assessed for the expense of the improvement, and a bond, signed by one or more responsible freeholders (to whom the petitioners will be responsible pro rata), conditioned for the payment of the expenses of the preliminary survey and report, if the improvement be not finally ordered, must be filed with the county commissioners before any thing can be done by them about any of the improvements mentioned above ; 3 and if any road is to be have learned that the -whole town is underlaid with gravel superior to that shipped. Other counties may find an abundance of material where not now expected. The citizens are well satisfied with the money they have expended for road improvements. The farmers are well paid by the increase in the value of their lands, and can market their grain and produce as easily and readily in December and January as they could under the old system of mud mads in August or September, thus having the opportunity of taking advantage of the best markets all the year. Merchants are well pleased that they have at their counters in the winter season, as well as in the summer, cus- tomers who live fifteen and twenty miles away. We pay our contractors in six per cent bonds, that are anxiously sought and sell as readily as United States bonds. See also note to par. 6, of chapter six. also, th.- preface of this book. ig 4829. 2 2 4830 > as amended, 77 O. L. 280 3g 4831, as amended, 81 0. L. 56, § 4829. 202 ROAD LAWS OF OHIO. [CHAP. 8, 6-10 vacated, further petition therefor must also be made. 1 But these matters can all be asked for in the same petition. 6. No notice of filing required. — No notice is required of the filing or presentation to the commissioners of the petition for the improve- ment. 2 7-9. Form of petition for road improvement. To the board of county commissioners of county, Ohio. We, the undersigned, land-holders whose lands will be assessed for the expenses of the improvement mentioned below, respectfully peti- tion your honorable body to improve, under and in accordance with the provisions of thestautes of Ohio relating to Two Mile Assessment Pikes, the county [or, township, or, public turnpike, or, a new] road, along the following described route: Commencing at ■ — [clearly describe the line of the proposed improvement, stating the points between which the road is asked for, for instance, as in paragraphs 7, 8 of chapter 7 ; or say, if so, along the present route of said road, as nearly as practicable, from to , or, otherwise, as may be~\. [To this may be added, if desired : 3 ] Your petitioners further pray that said improvement may consist of straightening, grading, graveling, bridging, and culverting said road [and further define the character and extent of the work desired to be done~]. [Add also, if desired :] Your petitioners further pray that, for the pur- pose of said improvement, the [designate what road, or part of it, as in paragraph 8, above] be vacated. [Signatures.'] 10. Naming the road. — It will be found convenient, and in many- ways desirable, to give a definite name to each separate road im- provement, and to designate it, in all proceedings, by that name, rather than from the petition. It may be named from its termini, or from some place through which it passes, or from some stream, along whose valley it extends, or otherwise, somewhat as railroads are named. 1 § 4829. 2 Thompson v. Love, 00 O. S. 000. 8 Che extent of the improvement desired may vary, as in case of places where no gravel is accessible, and it is desired to improve, but not gravel, the road; or it may be desired to plank or macadamize the graded and straightened road-bed. The commissioners are not bound to improve in the details petitioned for, but may nevertheless choose to follow the suggestions of the petition. CHAP. 8, 11-22.] TWO MILE ASSESSMENT PIKES. 203 11-16. Form of bond. Know all men by these presents, that we, A. B., L. R., and M. S., are held and firmly bound unto the State of Ohio for the use of county, in the sum of dollars, for the payment of which we jointly and severally bind ourselves by these presents. Done at , this day of , 18 — The conditions of the above obligation are such, that, whereas, ap- plication has been made by A. B. and others to the board of commis- sioners of said county for the improvement, under the Two Mile Assessment Pike laws of Ohio, of a [or, the] road, on the following line: Beginning at [describe as in petition, or otherwise clearly designate the road~\. Now, if the undersigned shall pay into the treasury of said county the amount of all expenses of the preliminary money and report, if the said improvement be not finally ordered, then this obligation shall be void. 1 A. B., L. R„ M. S. 17. Appointment of viewers and surveyor; duties of, etc. — The petition and bond mentioned above having been filed with them, the com- missioners must appoint three disinterested freeholders of the county as viewers, and a competent surveyor or engineer, to proceed, upon a day to be named by the commissioners, to examine, view, lay out, or straighten such road, as in their opinion public convenience and utility require. But in locating such improvement within the limits of any town or village, the viewers and engineer are confined to the platted streets of such town or village. 2 18-22. Form of entry as to filing petition and bond, appointing viewers, etc. , IS—. In the matter of the X and Y Road) Bond m< dm&rs in(ed etc . Improvement [£>ee p. 4h ; note 1, p. II \. \ A petition, signed by A. B. and [state how many'] other land-holders, whose lands will be assessed for the expense of the improvement mentioned below, was this day presented to the board of commission- ers f county, Ohio, praying for the improvement, under the Two Mile Assessment Pike Laws of Ohio, of a road, by grading, grubbing, graveling, [etc., as in the petition] the same, of a road along the follow- nc described route: Beginning at [describe as in petition]. 1 See note 2, page 2. 2 § 4831, as amended, 81 O. L. 56. 204 ROAD LAWS OF OHIO. [chap. 8, 23-30 A good and sufficient bond, signed by , in the sum of $ , conditioned according to law, has also been filed with said board. Thereupon, said board appointed * A. M., B. N., and C. O., three dis- interested freeholders of the county, as viewers, and F. S., as surveyor [or engineer], and directed them to meet at , on the day of > is_, a t — o'clock — M., and, after being duly sworn, to take to their assistance two suitable persons as chain carriers, and one marker, and proceed to view, examine, lay out, or straighten sai'd road as in their opinion public utility and convenience require; to assess and determine the damages sustained by any person through whose premi- ses the road is proposed to be laid out, straightened or improved; and to do such other things in the premises as are required of them by law ; and to make report of their proceedings, in writing, to this board at its next regular session, on , 18 — •. The auditor is directed to give notice, as required by law in such case. 23. Notice and publication.— The county auditor must notify the viewers and surveyor of the time and place of their meeting to make the view, and must also give notice by publication, in a' newspaper printed in the county, for three consecutive weeks before the meeting, which notice must state the time and place of meet- ing, the kind of improvement asked for, the place of beginning, intermediate points, if any, and the place of termination. 1 24. Certain interested officers not disqualified— A county commis- sioner, or a surveyor, or engineer, or county auditor, is not disquali- fied to act by reason of the fact that he owns and resides upon land within the two miles to be assessed and has signed the petition for the improvement. 2 25-30. Form of order to viewers and surveyor [or engineer]. Auditor's office, county, Ohio. , 18—. To A. M., B. N., and C. O., viewers, and F. S., surveyor: Gentlemen: A petition having been presented to the board of county commissioners of county, Ohio, praying for the improve- 1 §4832. In the published notice required under section 4832, "the kind of improvement asked for" is sufficiently described by the following state- ment, "and asking that said road be improved by macadamizing, under the two mile assessment act." . Thompson v. Love, 00 O. S. 000. 2 Thompson v. Love, 00 O. S. 000. CHAP. 8, 31-39.] TWO MILE ASSESSMENT PIKES. 205 ment, under the provisions of law relating to Two Mile Assessment Pikes, of a road, by grubbing, grading, straightening, and graveling [or otherwise state what improvement is asked for, according to the facts'] the said road along the following described route: [state the route]. A sufficient bond having also been filed with said board, conditioned as required by law, Thereupon said board appointed you [here copy all after the * in the preceding form, except the last paragraph, and change the third person into the second, when the viewers are meant']. [Here may well be added:] The law provides that the viewers shall not be required [then continue, giving the matter found in paragraph 41, be- low, or say :] The law governing the viewers' duties maybe found in sections 4833 and 4835 of the Revised Statutes of Ohio; or on page 21)6 of Giauque's " Road and Ditch Laws of Ohio" [or, the duties of the view- ers may be, but need not be, fully set out in the order, as is done in the case of county roads. See paragraphs 45-52 of chapter 2, and note thereto]. By order of the county commisioners. W. C, Auditor. 31-35. Form of notice by 'publication. IMPROVED ROAD NOTICE. Auditor's office, county. , O., , 18 — . Notice is hereby given to all parties interested, that A. B. filed his and others' petition with the county commissioners of county, Ohio, on the day of , 18 — , asking for the improvement by [tell how; for instance'] grading, graveling, draining, building bridges and culverts, of a road, on the following route, to wit: Commencing [describe substantially as in petition, briefly as consistent with clearness]. And notice is hereby given that the commissioners have appointed viewers and a surveyor, and ordered that they meet at , on the day of , 18 — , at 10 o'clock a. m., and proceed to view and survey said route, and make a written report of the same to the county commissioners at the auditor's office of county, on the - day of , 18 — , at — o'clock p. m. W. O, Auditor. 36-39. Notice to viewers. — The viewers may be notified by giving each of them a copy of the order appointing them, or by giving to each of them a notice, as follows : To A. M., B. N., and C. O.: You are hereby notified, that under the order of the commissioners of county, Ohio, dated , 18 — , you were appointed viewers of 206 ROAD LAWS OF OHIO. [chap. 8, 40-46 a road improvement petitioned for by A. B. and others, and that you are directed to meet at , on the day of , a. d. 18—, at 10 o'clock, a. m., to enter upon the duties set forth in said order. Dated this day of , a. d. 18—. W. C, Auditor county. 40. Duties of viewers and surveyor: assessment of damages. — The viewers and surveyor or engineer, must meet at the time and place specified by the commissioners, and after taking an oath faithfully and impartially to discharge the duties of their appointments, must take to their assistance two suitable persons as chain-carriers, and one marker, and proceed to view, examine, lay out, or straighten such road, as in their opinion public utility and convenience require, and assess and determine the damages sustained by any person through whose premises the road is proposed to be laid out, straight- ened, or improved. 1 41.' But the viewers are not required to assess damages to any person except minors, idiots, or lunatics, in consequence of the appropriation of any private property for the making of the im- provement, unless the owner thereof, or his agent, file a written application with the viewers, giving a description of the premises on which damages are claimed by them. 1 42. Damages barred, when.— AW applications for damages will be barred, unless they be presented as above required. 2 43. Form of oath of viewers and others. The form found in paragraphs 24-27 of chapter 1, may be used, making such slight changes as the circumstances require. 44-46. Form of application for damages maxj be as joliows: To A. M., B. N., and C. 0., viewers: 1 claim compensation in the sum of % , for damages that I will sustain if the road you are now viewing [or were viewing on , 1 § 4833. 2 g 4834. Where on the day of the meeting of the viewers, in proceedings to lay out a public highway, the mother of the owner of one of the tracts through which the proposed highway runs was taken suddenly sick, and, in consequence thereof, such owner failed to attend the meeting of the viewers, or present any claim for damages: Held, that such failure was a waiver of all claims for damages. Shearer v. Commissioners, 13 Kan. 145. See also note 3, page 23; par. 42, chapter 2, and note 2, page 7. CHAP. 8, 47-63.] TWO MILK ASSESSMENT TIKES. 207 18—,] is laid out [or straightened, or improved, or laid but, straightened, and improved, etc., as may he] as viewed by you through my premises, described as follows : [give descriplio nises]. h. 0. 47. Appeal from assessment for damages. —Any person feeling ag- grieved by the assessment made may demand of the commissioners to have the same assessed by a jury. In such case, the claimant may appeal to the probate court of the county ; and the same pro- ceedings must be had there, and like orders and judgments rendered, as are provided in chapter four. 1 48. But the guardian of any minor, idiot, or insane person, may act for his ward; and all his acts will be binding upon the ward. 2 49. Report of viewers to commissioner*.— The viewers, and surveyor or emrineer, must make a report to the commissioners at their next regular session, showing the public necessity of the contemplated im- provement, the damages claimed, and by whom, the amount assessed to each claimant, an estimate of the expense of the improvement, and the lots and lands which will be benefited thereby, and ought to be assessed for the expense of the same. 3 50. What lends may be assessed.— Tito lands shall be assessed as provided in the preceding paragraph which do not lie within two miles of the proposed improvement. The distance of two miles may be computed in any direction from either side, end, or terminus of the road. Lands that have once been assessed for the expense of any improvement made under the provisions of this chapter, can not be re-assessed under subsequent proceedings for an extension of the same, unless the prior assessment be not deemed proportioned to the whole benefit resulting to such lands.' 51. Bridges and culverts. — The county commissioner must build all bridges and culverts on the improvement, and pay for them out of the bridge fund of the county. 4 52-63. Form of viewers' and surveyor's report. To the board of commissioners of county, Ohio : In compliance with your order to us, hereto attache d, we, the under- *g 4834. As to proceedings in probate court, see subdivision 3, of chap. 1. 2§4834. 3 g 4835. The public necessity for the road does not mean that the road is indispensable. Shaver v. Starrett, 4 O. S. 494, 499. 4 \ 4846, as amended, 80 O. L. 4 208 ROAD LAWS OF OHIO. [chap. 8, 52-63 signed, viewers and surveyor [or, engineer], named in said order. mefc a t , on the day of , 18—, and, after having been duly sworn, as will further appear from the certificate of said oath, hereto at- tached, we chose C. C. and P. M. to act as chain-carriers, and P. Q. to act as marker, who were also sworn faithfully to discharge their duties, as will also appear from said certificate [or, from the attached certificate of their oath, if sworn by different officer]. We then proceeded carefully to examine, survey, lay out [etc , as may be] the road described in said order; and we hereto attach a profile of said road, showing the location and extent of its cuts, fills, culverts, bridges, etc., and a plat of the lands and lots tying within of said r<»ad [and no others, if so], showing the number of acres in each tract, the names of the owners thereof, and the route of said road through said lands and lots, and drawings of a cross-section of said road and its side ditches, of its bridges and culverts in so far as said profile and other descriptions do not explain the same, and other descriptions and explanations relating to said road as surveyed, laid out, straightened, and altered [etc., as may be] by us. We find that, in our opinion, said road improvement would be of great convenience to the general public, as well as to the residents in its vicinity, and further that it is a public necessity. 1 [Give other rea- sons also, if d, sired.] We recommend the improvement of said road, as shown by said profile, plat, drawings, descriptions, and explanations, all of which are made a part hereof. [Or, if the report is to be adverse:] We find that, in our opinion, said road improvement is not a public necessity, and we do not recommend it. We also submit herewith a list of all lands and lots lying within two miles [or, less, if so] of said road as surveyed [and no others]. [This list nun/ be as shown in paragaaph 135, below, omitting amounts in "$ and cts." coluni ns. ] Written claims for damages were filed with us by the following per- sons, claiming amounts as follows: A. Z., who claims $ . B. L , " " • A. Y., " " • D. R., " " • I < te. ] These claims are filed herewith. We assessed damages to the following persons, as follows: To B. L., $ . To A. Y., . [Or, say, if so .] No damages were claimed or allowed. *See note to par. 4 ( J, above. CHAP. 8, 64, 65.] TWO MILE ASSESSMENT PIKES. 209 We estimate the whole expense of said improvement at $ , clas- sified as follows : Grading and ditching, at $ per mile, amounting to . $ Graveling and material, at$ per mile [ yards at per yard], amounting to ....... . Damages assessed, at $ per mile [ yards at per yard], amounting to ........ . Fees of assessors, engineers, etc., and interest on bonds, amount- ing to .......... . Total, excluding bridges and culverts, . . $ ■ Bridges and culverts, at $ per mile, amounting to . . Grand total, ....... $ These estimates are based upon the following general specifications: The road bed and all bridges and culverts to be made feet wide, the culverts to be of sewer pipe, or with stone abutments and wooden superstructure, or stone arches, and all bridges to have stone abut- ments and wooden or iron superstructure, as shown on profile. The gravel to be placed upon center \_or, side] of grade feet wide, inches deep in center, and inches deep at the sides. [Or, if there is to he a layer of broken stone, with a layer of gravel on top, state the ividth and depth of each, or vary otherwise, as need 6e.] Given under our hands, this day of , 18 — . A. M., B. N., C. 0., Viewers. F. S., Surveyor. 64. Proceedings when report of viewers is filed. — When the report is filed, the commissioners must, unless such report shows that there is no public necessity for the contemplated improvement, enter on their records and order that the improvement be made. This order must state the kind of improvement, its width and extent, and the lands which must be assessed for the expenses thereof; but such order can not be made until a majority of the resident land-owners of the county whose lands are reported as benefited and ought to be assessed subscribe the petition mentioned in paragraph 5, above. 1 65. In counties containing a city of the first grade of the first class, in addition to such laud-holders, a majority in interest of the persons whose lands abut upon said proposed improvement must also subscribe this petition. 1 1 § 4836, as amended, 80 0. L. 25. See note to pars. G6 and 77, below. 14 210 ROAD LAWS OF OHIO. [CHAP. 8, 66 66. Hoxo majority determined. — In determining such majorities, minor heirs can not be counted for or against the improvement, unless represented by legal guardian ; but the action of such guardian will be binding upon such minor heirs. All heirs or owners, either adults or minors, to any undivided estate, will only be entitled to one vote for or against such improvement. The name of any per- son who has acquired title to the same by gift, or in any other man- ner, for the purpose of making such person a petitioner for or re- monstrator against such improvement, can not be counted in favor of nor against it. 1 1 1 4836, as amended, 80 O. L. 25. There is no appeal to the court of common pleas from a final order made by the board of county commissioners in proceedings to improve a county road on the petition of a majority of the qualified land-owners under the the act passed March 29, 1867. (S. & S. 671. This act is the basis of the present Two Mile Assessment Pike laws. Ed.) Southard v. Stephens, 27 0. S. 649. A final order made by the county commissioners in such a proceeding is not a judicial act, and hence not appealable under section 18 of the county commissioners' act, passed March 12, 1853 (S. & C. 247.) lb. When error has intervened in the proceedings and final order of the county commissioners in the laying out and establishing a county road under the provisions of the act of March 31, 1868, and the acts amendatory thereof, where jurisdiction over the subject-matter hail been acquired as required by the statute, which error is in some degree prejudicial to the rights of the party complaining, but not so materially affecting such proceedings and final order as necessarily to render them void, and they can be modified so as to do substantial justice to the complaining party and allow a complete county road to remain, such modification as will do justice to the individual and promote the public interests is authorized by section 514 of the code and the act of May 13, 1868 (S. & S. 677), (although such act. in terms only, gives power to reverse, and not to modify). Hays v. Lewis, 28 O. S. 326. The maximum width <>f a county road is limited by law to sixty feet, and the minimum width to thirty feet, and county commissioners, under the pro- visions oi the act of March 31, 1868 (S. & S. 673). giving an additional mode of laying out and improving county roads, have no power to appropriate to that public use, for the width of the road, more than the maximum number of feet; and the provisions of section 5, of the act of -May 9, 1868 (amend- atory of the act passed March 31, 1868), authorizing the commissioners to determine the width of the county roads hod out under the authority of the act of March 31, does not, in respect to the width of the road, increase the power of the commissioners. lb. Where a public necessity is shown to exist for a county road, and land is CHAP. 8, 67.] TWO MILE ASSESSMENT PIKES. 21 1 67. Vendees of land in possession under valid and subsisting contracts of purchase, who are entitled to enforce their contracts, are land-owners within the meaning of the statute ; so also are the owners of estates for life, and the guardians of minors, idiots, and insane persons who have signed the petition or remonstrance/ donated to public use for a county road-bed, and accepted by the county commissioners, with the understanding of both parties that the road will be laid upon the donated land five rods wide, and the county commissioners cause the road to be laid out over the donated land five rods m width, and the improvement put on that portion of the road costs no more than it would have cost had the road been laid out only sixty feet wide, and no sub- stantial injury or prejudice results to the plaintiffs by reason of the increased width of the road-bed: Held, as neither qf the individual plaintiffs are prej- udiced in any substantial right by the action of the county commissioners, and a benefit accrues to the general public by the establishment of the road, no sufficient reason appears on account of the width of the road for revers- ing the final order of the commissioners. lb. The board of county commissioners has no jurisdiction to make an order of improvement until a majority of the resident land-holders whose lands will be benefited, and ought to be assessed, have signed a petition therefor. Burgett v. N orris, 25 O. S. 308; Hays v. Jones, 27 O. S. 218. It is not neces- sary that a majority who are finally assessed should have signed the petition. Parker v. Burgett, 29 O. S. 513. If order was valid when made, it remains valid. lb. 513. The petition may be signed in duplicate, and failure to re- cord one does not vitiate. Braden -v. Commissioners Logan Co., 31 O. S. 386 Petitioners, at any time before the order is made, may withdraw their assent by remonstrance. Hays v. Jones, 27 O. S. 218. Quare: Whether a lot owner in an incorporated village or city is a "land-holder" within the meaning of this section. The commissioners can not order a part only of the improvement to be ■ made. Robinson v. Logan, 31 O. S. 466; Worth v. Avenue Co., 26 O. S. 345. There is no appeal from final improvement order. Southard v. Stephens, 27 O. S. 649. Equity and injunction furnish the remedy to test the juris- diction. Hays v. Jones, 27 O. S. 218; Burgett v. Norris, 25 O. S. 308; Glenn v. Waddel, 23 0. S. 605. See notes to par. 106 of chapter 2. 1 When the viewers and surveyor, acting in good faith, have made and re- turned their report, and the county commissioners acting thereon, have en- tered the order that the improvement be made, the further proceedings will not be enjoined because of omissions, by mistake, from the report, of lands and persons to be assessed. Thompson v. Love, 00 O. S. (not yet printed). "We do not wish to be understood as expressing the opinion that the 212 ROAD LAWS OF OHIO. [chap. 8, 68-72 68-72. Form of order to make the improvement, appointing engineer, ete. In the matter of the X and Y Road 1 j vemmi ordcred dc _ Improvement. [See note 2, pp. 22, 41 7J. j The report of the viewers heretofore appointed, having been made as required by law, and said report being in favor of said improvement, and showing that there is public necessity therefor, and the board being satisfied by a comparison and count of the petitioners for said im- provement and land-holders taxable therefor as reported by the viewers and by the testimony of et al. that a majority of land-owners whose lands would be assessed for the expenses of the same,* have signed the petition asking for said improvement, that public utility requires it, and that the proceedings heretofore had were in conformity to law. The board, therefore, order the reports and plat in said matter to be duly recorded and filed, and said improvement to be made in the fol- lowing manner, to wit: [Here specify how road is to be improved, which may be as recommend' d in viewers report.'] The board appoint F. S. as engi- neer, to take charge of said improvement, to advertise and sell the same according to law, and require said work to be done by the (j a y f ( 18 — . 1'ayment for said work will be made [tell how, e. g.~\ in the turnpike bonds of county, Ohio, bearing per cent in- terest, payable semi-annually, and falling due in years [or, pay- ment will be made in cash]. The board find that the following lands will be benefited by said improvement and should be assessed to pay the same: {Here give a list similar to the one in par. 135, below, leaving the columns for dollars and cents vacant. ] The board appoint D. P., E. Q., and F. R., three disinterested free- holders of the county, a committee to apportion the expenses of said improvement, estimated by the viewers heretofore appointed to be $ on the lots and lands benefited by said improvement; taking into consideration any benefit that would accrue to any person by reason of drainage or of former expense from other road improvements heretofore made. Said committee are directed to make report of their proceedings, in writing, to this board at their earliest convenience. commissioners could not have referred the report for proper correction before acting on the same." lb. The commissioners have no power to review the report and change it as they judge best. "Owners of estates for life may be held to be land-owners; and holding a joint estate they may be counted as one." lb. CHAP. 8, 73-81.] TWO MILE A 88 1CSSMK NT PIKES. 213 On the question of the passage of the foregoing order, all the com- missioners [or state who] voted aye Attest: C. B., Auditor and Clerk. W. B., President. 73-75. Form of order, if viewers' report be adverse. [Give caption as above.'] The report of the viewers heretofore appointed, having been made as required by law, and said report being not in favor of said improve- ment, and showing no public necessity therefor, it is ordered that said report be recorded [and that all plats, profiles, and other papers in said matter be carefully preserved, or recorded, according to law], and that all further proceedings in said matter be discontinued. It is further ordered that the obligors in the bond filed in said matter pay into the treasury of said county the amount of all expenses heretofore incurred in said matter, according to law ; and that, in default of such payment, proper pi'oceedings be had to compel the same to be made. 76. When remonstrant bound for costs ; how collected. — If it appear that any person who signed the petition asking for such improve- ment afterward signed a remonstance against the same, so that by counting such person as a reraonstrator instead of a petitioner the object and prayer of such petition will be defeated, the person who is both petitioner and reraonstrator must be held liable, and must pay all costs growing out of the presentation of the petition, and the proceedings had thereon. If the costs are not paid within thirty days after the dismissal of further proceedings in the case, the auditor must tax the costs against such person, and if there is more than one such person, the auditor must apportion the costs among such persons, in the proportion of the appraised value of their several lauds for taxation that are within two miles of the route on which the improvement was prayed for, and must place the same on the grand duplicate for collection, to become due and payable at the next December collection of taxes thereafter; and the same penalties will attach, and the same proceedings must be had in the collection, as in delinquent state and county taxes. 1 77-81. Form of remonstrance. To the board of county commissioners of county, Ohio: We, the undersigned, residents of said county, respectfully but ear- 1 g4837. 214 road laws of ohio. [chap. 8, 82-84 nestly remonstrate against the improving of the road petitioned for by A. B. and others, and known as the X. and Y. improved road, and beg your honorable body to refuse to improve said road as petitioned for, or in any other way \_or designate some particular thing objected to, e. g.~\ for the following reasons : * 1. It is not a public necessity. '2. It is not of sufficient public utility to justify its improvement, there being already a good, improved road near to it [etc., as may le~\. 3. [£ta.] [Signatures. ~\ 82. Form of order, if remonstrants stop the improvement. [Follow the order on page -12 to the *, then say :] had signed the petition asking for said improvement; but remonstrances having also been filed, from which and from the evidence thereon, it appears to the satisfaction of the board that a majority of the land-holders whose lands would be assessed as aforesaid, are no longer petitioners for said improvement, it is ordered that said improvement be not made, and that [name them], who signed said petition and also said remonstrances, be required to pay the costs and expenses accrued in said matter, ac- cording to law; and that, in default of such payment, proper proceed- ings be had to compel the same. 83. Plats, profiles, and surveys to be preserved, why. — All plats, profiles, and surveys, on applications for road improvements, when the application fails, and the county commissioners refuse to order the construction of the road, must be carefully preserved in the office of the county auditor; and the county commissioners are au- thoriezd to use the same, if practicable, on any new application for the same road, or any part of the same road. 2 84. Must be paid for, if used later. — If such plats, profiles, or sur- veys, or any part of them, are so used, the persons originally charged with their cost must be paid therefor, or such part thereof as may be so used, in the manner provided by law. 2 1 Previous to April 16, 1880, the commissioners had, after the viewer.-' report was filed, "if in their opinion public utility requires it," to "enter on their records an order that the improvement be made" (as amended, § 4836). Now, it is not left to their discretion. See paragraph 64, above. The form of the remonstrance is, therefore, now immaterial, and really need give no reasons at all. 2 § 4852. CHAP. 8, 85-92.] TWO MILE ASSESSMENT PIKES. 215 85. How -proceedings abandoned before contract. — All proceedings relating to the construction of such improvements may be discon- tinued at any time before a contract is entered into for the improve- ment, by the filing of a notice with the county auditor, signed by a majority of the petitioners for the improvement, stating that they will not further prosecute the same, and by the payment of all costs that have accrued up to the time such notice is filed. The auditor must then immediately notify the engineer, and cause all proceedings relating thereto to be discontinued ; and the county commissioners, at their next regular or called session, must place upon their records an order abandoning such proposed improvement, and vacate and set aside the order for the improvement. 1 86-88. Form of notice by the petitioner. , 18—! To the auditor and commissioners of county, Ohio: We, the undersigned, signers to the petition praying for the X. and Y. Road Improvement, which petition was filed with said commission- ers at their session, 18 — , hereby give notice that we will not fur- ther prosecute said improvement, and that we will pay the costs in relation thereto heretofore accrued to the date of filing of this notice. [Signatures. 2 89. The auditor should indorse on the notice the date of its filing with him. 90-92. Form of notice by auditor to engineer. In the matter of the X. and Y. Road ) Improvement. j To F. S., Engineer: Sir: You are hereby notified that a majority of the petitioners for said improvement have given notice, as authorized by law, that they will not further prosecute said improvement, and that they will pay all costs in relation thereto, heretofore accrued. You will, therefore, cause all proceedings, expenditures, and costs relating to said improvement to be at once discontinued. W. C, Auditor of count*/. 44839. 216 ROAD LAWS OF OHIO. [CHAP. 8, 93-101 93-95. Form of order by commissioners. , 18—. In the matter of the X. and Y. Road ) Improvement. [See note 2, pp. 22, 417]. J Whereas, on , 18 — , a notice, signed by a majority of the peti- tioners for said improvement, stating that they would not further prosecute the same, and would pay all costs accrued in relation thereto to that time, was filed with the county auditor according to law, and whereas, it appears to the satisfaction of this board that said costs have now all been paid by them, it is therefore ordered that said improve- be, and it is, hereby abandoned. [Here maybe added :] It further appears to the satisfaction of this board that said auditor notified the engineer of said improvement, at the proper time, to cause all proceedings, expenditures, and costs in relation thereto to be discontinued, which was done accordingly. •96. How abandoned after contract. — At any time after the contract for the improvement is made, the commissioners may, with the con- sent of the contractor for the improvement, or for the part or parts of it to be affected, and also with the consent of a majority of the petitioners for the improvement whose lands lie within two miles of the part of it to be affected, vacate and set aside the order for the improvement, or any part of it, or abandon any part of such pro- posed improvement, if they deem it proper and advisable to do so. 1 97-98. Form of contractors' and petitioners' consent to abandonment, etc. — Such consent may be verbal, but ought to be in writing, and may be as follows : , 18—. In the matter of the X. and Y. Koad ) Improvement. } We consent to the vacation of the order to improve said road, passed by the commissioners of county, Ohio, at their session, 18 — . [If the consent is as to a part only of the improvement, here add ;] as to the following part of said improvement : [describe the part.] [Signatares.~\ 99-101. Form of order of abandonment, etc. , 18—. In the matter of the X. and Y. Road I mprovement. With the consent of R. S., contractor for said improvement [or, of that part of said improvement affected by this order], and of a major- 1 § 4840. CHAP. 8, 102-100.] TWO MILE ASSESSMENT PIKES. 217 ity, of the petitioners therefor, which consent is evidenced by a writing now on file with this board, the former order of this board, passed , 18 — , ordering the improvement of said road, is hereby vacated and set aside [add, if so, in the following respect, and state in what re- spect, or, as to the following part of said road, and designate what part]. [Signed by commissioners.] 102. Effect of such abandonment. — In the case mentioned in para- graph 96, above, if the order as to a part of such improvement be set aside and vacated, or a part of such proposed improvement be abandoned, such action will not in any way impair or affect any order, contract, or proceeding relating to the remainder of the im- provement ; but no assessment can be made for the remainder of any such improvement, upon any lands not lying within two miles of such remainder. 1 103. Changes in the improvement and assessments. — If at any time after making such final order directing the improvement to be made the commissioners find that there has been an omission of lots and lands within the territory sought to be assessed, or that, there has been manifest injustice in the apportionment of taxes, or that pub- lic necessity requires any alteration in the manner of the improve- ment as ordered, they may make such addition and re-apportionment as they deem just and proper, and such change in the improvment as will conform the same to the public requirement. 2 104. Form of change in assessment. — A form can readily be adapted from the latter part of form on page 232. 105. Commissioners may receive donations. — The commissioners may receive subscriptions and donations, in money, or real or per- 1 1 4840. 2 § 4838. In an action by H. against the county commissioners to enjoin the assessment of the costs and expense of a road improvement, on the ground that the commissioners had not jurisdiction to order the improve- ment to be made, it was determined upon a trial on the merits that the com- missioners had such jurisdiction. Afterward the same parties brought, an action against the commissioners to enjoin the same assessment for want of jurisdiction of the commissioners for a reason not stated in the former action. Held, that the question of jurisdiction of the commissioners was con- clusively settled between the parties by the judgment in the first action. Martin v. Roney, 00 O. S. 00 (not yet printed). 218 ROAD LAWS OF OHIO. [CHAP. 8, 106-111 sonal property, which must be applied to the construction or im- provement of the road. 1 106. Engineer to superintend ivork; his bond, and action on.-— After making such order for an improvement, or for any change in the same, the commissioners must appoint a competent engineer to superintend the performance and completion of the work, who must enter into a good and sufficient bond, with surety to be approved by the county commissioners, conditioned for the faithful perform- ance of his duties, in a sum to be fixed by said commissioners ; and an action may be brought on such bond by any person aggrieved by a failure of the engineer to do his duty, in the name of such party, and recoverv may be had for his use and benefit. 2 107. Must wuzfte contract; work to commence. — The engineer must, with the approval of the county commissioners, make a contract for the performance of the work. The contractor may at once enter upon the performance of the work, under the superintendence of the engineer. 2 For order appointing engineer, see paragraph 22, above. 108. Max] be removed. — The county commissioners may, at any time, for cause, remove the engineer and appoint another in his place. 2 109, 110. Form of entry, removing engineer and appointing another. In the matter of the X. and Y. Road ) 18—. Improvement. 1 Complaint having been made against F. S., engineer in said matter, charging him with [state charge], and it appearing to said board, after full investigation, that said charge is true, and is good cause for remov- ing said engineer, he is hereby removed and A. G. is appointed in his place. 111. Another form. r ( 'option as abore~\ It appearing to the satisfaction of the board, after careful examina- tion in reference thereto, that V. S., engineer in said matter, is incom- petent [or, slate other cause'], he is hereby removed and A. G. is appointed in his place. ^4853. See paragraphs 90-92 of chapter 7, and paragraphs 18-35 of chapter G, for remarks, etc., as to similar provision there. 2 § 4841, as amended, 78 O. L. 227. See note, p. 248. CHA1'. 8, 112-1 15. J TWO MILE ASSESSMENT PIKES. 219 112. Letting of contract; security for. — The improvement must be let in sections of not less than one-half mile, by public outcry or sealed bids, and to the lowest and best bidder, who must give such reasonable security for the proper performance of his contract within the time and in the manner described, as the county commissioners may deem expedient. 1 113. Form of notice of letting. Notice is hereby given that the X. and Y. Road Improvement will be sold at public outcry at , to the lowest and most responsible bid- der or bidders, on , 18—. Said road is [describe location] to be im- proved according to specifications, plat, and profile in the auditor's office of county, < »hio. Said road contains sections, each feet in length. The commissioners and engineer reserve the right to reject any or all bids. By order of the commissioners of county, Ohio. F. S., Engineer. 114. Another form. Sealed proposals will be received at the auditor's officer of county, Ohio, till noon on the day of , 18—, for the grading, graveling [etc., as may be] of a road along the following route: [briefly give route]. Said road is to be improved according to specifications, plat, and profile, which are on file and may be seen in said office. Said road is divided into sections of a half mile each, and the bids will be received for any section or sections, or for the road as an entirety. [Say, if so:] Proposals may be for grading or graveling only, or for grading and graveling, and must be made on blanks to be furnished by the auditor, and a good bond in the sum of $ for each section must accompany each bid, conditioned for the faithful performance of the bid, if it be accepted. Xo proposal will be considered, unless ex- hibiting the full name and address of each and every person inter- ested, and the names of proposed bondsmen — one of which must be a resident of county. Bidders must deposit one hundred dollars with the commissioners or engineer, which will be forfeited by the successful bidder in case he fails to enter into bond and contract within five days. The county commissioners and engineer reserve the right to reject any and all bids. F. S., Engineer. 115. Proof of publication. — (Same as given on page 19.) 1 l 4841, as amended, 78 (). L. 227. 220 ROAD LAWS OF OHIO. [CHAP. 8, 116-126 116. Entry of the letting. This being the day advertised for the sale of the X. and Y. Road Im- provement, and it appearing to the board that due notice of the time and place of said sale has been given as required by law, the same was offered for sale [state how offered] ; and R. S. having bid fully to im- prove the entire road [or, state how he did bid] for the sum of dol- lars, and said bid being the lowest and best, the said road was sold to him accordingly; and he entered into a good and sufficient bond in the sum of $ , with L. R. and M. S. as sureties, for the faithful per- formance of said contract according to the specifications, plat, and profile of the engineer in charge; which bond was accepted by the commissioners. [Change to meet the facts.] 117-126. Form of contract. Articles of agreement entered into this day of , 18 — , by and between R. S., party of the first part, and F. S., as engineer of the X. and Y. Road Improvement, petitioned for by A. B. and others, and ordered to be made by the commissioners of county, Ohio, at their session, 18 — , of the second part, witnesseth: That the said party of the first part, hereby promises and agrees to execute and finish in the most substantial and workmanlike manner, and to the satisfaction and acceptance of said engineer and the com- missioners ot county, Ohio, all the work upon that part of said road improvement, described as sections Mo. [or, upon ■ road improvement], and in the manner described in the specifications, 1 1 Form <>f stkcifications for improving the X. and Y. road in county, referred to in contract [hereto attached, or, between ~F. S., engineer, and 11. S., contractor, dated , 18 — ]. 1. Removing obstructions. — The contractor must clear the road of all ob- structions to the width of ■ feet. All trees and stumps within the area required for the construction of the road-bed and ditches shall be grubbed and removed therefrom; except in tills, where they may be cutoff level with the natural surface of the ground; and all earth, rubbish, or other matter liable to obstruct the water-way between the abutments of* any bridges built by either county or contractor, must he removed to a depth deemed by the engineer sufficient for the necessary water-way. 2. Corner stones, etc. — Contractors will he required to preserve all monu- ments and corners to lauds found in the road-bed, and will be held respon- sible if the same are destroyed. 3. The grade to conform to the profile and cro9S section of the road. The road-bed to be smooth and evenly graded (in roads of two tracks on the side to be used for dirt track, leave no sinks or low places in the surface of CHAP. 8, 116-126.] TWO MILE ASSESSMENT PIKES. 221 plat, profile, and cross section of said road, as made out by said en- gineer, and on file in the office of the auditor of county, Ohio. Said specifications, profile, etc., are made a part of this contract. the grade liable to contain or hold water) to a width of feet on each side of and crowning inches to the center line. The sides of all cuts, tills, or ditches over three feet in depth or height, to receive a side slope of 1 \ horizontal to one perpendicular. The grade of said road must in no place receive a greater assent or descent than degrees or feet of rise or fall in 100 feet in length. ■i. Common grade and ditches. — On that part of the road described on the profile as common grade, the road bed to be made as above described, with side ditched not less than feet wide at the top and feet wide at the bottom, and to be not less than feet below the edge of the grade on the high grounds or water-divides, and not less than feet below the edge of the grade at the culverts or outlets, unobstructed and continuous, with bot- toms graded straight and smooth, leaving no ponds or pools by the road side. The banks of all ditches feet deep and less, to receive a side slope of one foot horizontal to one foot perpendicular. All culverts, ditches, or small bridges must have outlets or side ditches cut from the road sufficient to drain them thoroughly, except those which are marked on the profiles which are not included in this contract. These ditches to be one foot wide in the bottom, and to have their banks sloped \\ to 1 foot and to be cut to a grade of 12-100 of a foot to each 100 feet until a good and sufficient outlet is mad.'. The whole grading to be done in a neat and workmanlike manner. Specifica- tions for common grade to apply to the whole of said road, except where otherwise specified by the profiles. 5. Gravel. — The gravel to be of a good quality and entirely free from top dirt, loam, clay, or sediment mixed with the gravel, and to be uniformly spread upon center \or, side] of the road-bed as above prepared feet wide, inches deep in the center, and at the sides when completed ( inches additional are to be put on in the center and inch at the sides for shrinkage). Each cubic yard containing large stones or coarse gravel to be thoroughly raked with an iron or steel rake, and the raklngs to be thrown forward and spread in the center of the road-bed, and no stones larger than '1\ inches in diameter shall be left nearer than two feet of the edge or 4 inches of the surface of the gravel, and no stone larger than 5 inches in diameter shall he regarded as gravel. At the junction or crossing of each gravel road there shall be put on yards of extra gravel, and at the approaches to wood- top culverts on all double track roads the side track shall be graveled wide and back from the culvert on each side, gradually sloping the same to the level of the side track (the cost of which is included in this contract). 0. Materials. — All earth, timber, stone, gravel, or other material naturally belonging within feet of the center line of said road, may he used for 222 ROAD LAWS OF OHIO. [chap. 8, 116-126 Said engineer shall have the power to vary the specifications, plat, profile, and cross section, on equitable terms as to diminution or in- crease of cost, and all work is to be done in the manner prescribed by the construction of the same unless otherwise reserved by the superintend- ent. All other material must be furnished by the contractor [or specify otherwise, if so ; or add, if so :] But in case the contractor shall be unable to agree with the owners of gravel for the purchase of the same, the com- missioners will procure the gravel at such points as the contractor may select; and if they are unable to agree with the owners thereof, at reason- able rates, will proceed under sections 4854 to 4857, inclusive, of the Kevised Statutes of Ohio, to appropriate such gravel at their own expense; but the contractor shall pay the expense of condemning the same and refund to said commissioners whatever sum they shall be required to pay for said gravel. No gravel will be allowed on any part of the grade until the same, with its side ditches, has been entirely finished, examined, and accepted, and a written permit to gravel the same obtained from the engineer or superin- tendent in charge. 7. Box culverts. — [Adapt specifications from forms given in chapter 12 for such culverts ; if logs instead of stone are used for side walls, use specification for, below, in this note.~] 8. Sewer jiijie culverts. — "Where sewers are used they are to be of the grade of first class sockets or flanges, in all classes a sufficient number of pipes to be used to correspond in length to the width of the grade or fill in the bottom, or the number of feet in length shown upon the profile, the ends of which are to be protected by stone work laid in mortal 1 composed of two parts of clean, sharp sand to one part of Louisville or Akron cement. Said pipe to be laid in a trench dug to a solid foundation and rounded in the bottom to fit the shape of the pipe, the dirt at the sides to be tamped until solid. Aflat stone to be laid under the pipe at the lower end, and said stone to project one foot further than the end- of the pipe. The stone work to be three feet three inches long, and eighteen inches thick, and of sufficient height to be flush with the top, and twelve inches below the bottom of the sewer pipes. To be covered with stone copings not less than six inches thick and of sufficient length to cover both walls and the pipes. Said coping must not be in more than two pieces. 9. Bridges. — [Adapt specifications from forms in chapter 12.] [Signed.] F. S., Engineer. 11. S., Contractor. [If desired, the following may be used in place of the corresponding parts above, or adaptations from both may be used. Matter which more properly belongs in the contract is sometimes inserted into the specifications, some 3uch matter being given below. If the contract makes the specifications a CHAP. 8, 116-126.] TWO MILE ASSESSMENT PIKES. 223 the engineer as to any matters not stated in the specifications, etc. It is hereby agreed that the engineer shall estimate and determine the amount or quantity of the several kinds of work done, as said work part of itself, no harm is likely to result, especially if both engineer and contractor sign the specifications. To avoid future trouble, it is well that both should sign them.] Grading.— There must be a road-bed graded up of the width of feet between the edges of the same and to have a crown in the center of about ten inches above the edges. Make the edges straight and of a uniform dis- tance apart, and make the surface of a smooth and uniform appearance, without any holes or uneven places upon said road-bed, and have no stumps if they are within inches of the surface of the grade. Put the center of the road-bed exactly on the line to be staked out; and whenever there is a rise in the surface of the grade, do not increase the rise by placing earth upon the same from the side ditches, but move the earth from said ditches on the high places to the low ground so as to level up the road bed; in low, wet places the grade must be made high, so that it will be above the effects of the water; draw the earth from the ditches in the high places to make the fills in the low places. Before said road-bed is graveled there must be at least rods graded to the specifications of the same and accepted by the engineer in charge. And, therefore, whenever there is rods graded of said road-bed, and before there is any gravel placed upon the same, the rods, together with the ditches and culverts thereon, must be examined and accepted by the engineer as aforesaid. And if the same is not completed to these specifications and to the acceptance of the engineer, and in case the contractor refuses to complete the same according to the direction- of said engineer, made in accordance with these specifications, then the engineer and commissioners of said county shall have the right to declare said contract forfeited; and they shall have the right to relet the same. Should the road- bed, after being accepted, be cut up by travel, the contractor must scrape, fill, and smooth off all uneven places in the surface of the grade at least rods ahead of the gravel. Ditches. — On each side of said road-bed there must be cut a ditch feet wide; in no place less than inches deep, and in low, wet places not less than feet deep. And should there be an old ditch not in the proper place for the new ditch, then fill up the old ditch and construct a new one in the proper place. The ditch must be of a smooth, even slope on the side next the road-bed, and the outside of the ditch must be perpendicular, or slightly sloped outward. All earth excavated in the ditches must be placed upon the road-bed as aforesaid, and in case there is not sufficient earth in the ditch of feet width to make the grade high enough in low places, then widen the ditch sufficiently to procure earth enough; but in Widening, go squarely out, so that the ditch where it has a uniform width will have its outside edge perfectly straight when completed. The ditches must have an 224 ROAD LAWS OF OHIO. [chap. 8, 116-126 progresses. And that said engineer and commissioners of county, Ohio, shall determine the amount of compensation or deduction to be made, at contract prices, where any change shall be made as to said work. even grade in their bottom and be smoothly cut, so that the water will flow uninterruptedly down to the culverts. Cuts and Jills. — Make the cuts of the depth shown, and convey the exca- vated earth to low places when directed by the engineer, within a distance of feet from the cut. The road-bed and ditches in the cut will be the same width as before described. Culverts. — Culverts are to be constructed at all places .shown on profile, and of the width inside in the clear marked thereon ; make them of good, sound timber ; they must have logs on each side, increasing feet in length to each log from top down ; the top log being at least feet long. The logs must be at least inches thick, and inches wide, and be hewn on three sides, and be well put in place. The said logs must be of good ; sound green white oak, or burr oak, or black hickory; there must be at least stringers placed upon said logs not less than by inches; and boards must be set up at the end of the stringers to prevent the earth from caving. Cover the culverts with good, sound plank ; the plank to be not more than inches nor less than inches wide, and inches thick, and be thoroughly spiked down ; and have end boards at each end of the culvert. Said covering boards must be feet long, and the whole culvert must be neatly constructed in a workmanlike manner; and when in position its top must be flush with the top of the grade, and the gravel must be placed over said culverts so that the gravel will have a uniform, even grade on its surface. Bridges. — The bridges shown are to be constructed by the commissioners of said county. Upon their completion, the contractor of said road im- provement must make the necessary fills and approaches to said bridges, and gravel up to the same, but not over the floor of the bridge; and have the gravel so placed next the bridge, that after it has settled, it will be just flush with the top of the floor of the bridge. Gravel. — The gravel to be placed upon said road must be the best that can be procured in the locality of the road, where the same is purchased by the commissioners, and must be of a coarse quality, containing no earth or loam, and he uniform in quality. Said gravel to be placed upon said road-bed feet wide and inches deep in the center, and inches at the edges. And if, at estimate time, or upon the engineer's examining any portion for acceptance by the commissioners, if said engineer or commis- sioners find any portion of said gravel that they consider is not of the quality and does not contain the quantity herein required, and does not measure of the depth and width herein required, then said engineer shall not issue an estimate nor the commissioners accept any portion of said CHAP. 8, 116-126.] TWO MILE ASSESSMENT PIKES. 225 Said R. S. is to do said work for the sum of dollars. [Add, if so :] of which sum $ is to be paid in cash, and $ to be paid in the bonds of county, Ohio, at par, and the payments thereof to be made according to the estimate as set forth in the specifications. gravel, until said contractor has made full and complete to these specifica- tions every portion of said gravel; and upon failure within a reasonable time, or a refusal of the contractor to complete and gravel to the satisfaction of said engineer and commissioners, then said engineer and commissioners are to have the right to declare said contract forfeited, and shall have the right to relet the same to some other person. In placing the gravel upon the road, the edges of the gravel must not he torn down, hut kept up in a straight line; and after dumping the same, the teams must turn at regular intervals of not less than twenty rods; and after a new turn is made, then straighten up the edges of the old turn. Keep the gravel uniform and even on the top and on a straight line. Keep up side and center boards while putting on the gravel. Estimates. — Whenever there is work done to the satisfaction of the engi- neer to the amount of dollars, then said engineer shall issue an estimate to the contractor for the amount. And the auditor, after reserving twenty per cent of said amount until the completion of the contract, or section, he shall then pay the contractor in the manner as provided by law, and as ar- ranged by the commissioners of said county. And whenever there is a half mile of said road completed, the same shall be inspected by said commission- ers in company with the engineer; and if the work is satisfactory to all of them, and the same is completed to their satisfaction, then said engineer and commissioners shall issue a certificate signed by themselves for the final acceptance; and the contractor shall receive his pay in full upon said half mile. And therefore no estimate shall issue until the work inspected is fully completed and not lacking any thing under the specifications. Changing of specifications. — The commissioners and superintending engi- neer reserve the right to alter or change these specifications, and at any time during the progress of the work; and if more work is required by any change, then the contractor is to receive extra pay for the same, to be esti- mated by said engineer; and if less work is required, then there is to be a corresponding reduction, to be estimated as above. Tools and implements. — Contractor to furnish all tools and teams and implements necessary to do said work and to do and perform all herein required; and to do the same in a thorough workmanlike manner and as specified (as the weather will permit), and in every respect comply with these specifications, orders of engineer and commissioners, made in accord- ance therewith. The commissioners of said county to furnish the gravel at the pit; the contractor to make the necessary road to the same and open the pit and haul the gravel as aforesaid. There must be wings or turns graveled out at each end of the road, to enable teams to turn in and out 15 226 ROAD LAWS OF OHIO. [chap. 8, 127-130 Said bonds of county, Ohio, bear per cent semi-annual in- terest, and are due in installments, as follows : One-tenth, March 1, 18 — ; one-tenth, September 1, 18 — ; one-tenth, March 1, 18—; one-tenth, September 1, 18 — ; one-tenth, March 1, 18 — ; one-tenth, September 1, 18 — ; one-tenth, March 1, 18 — ; one-tenth, September 1, 18 — ; one-tenth, March 1, 18 — ; one-tenth, September 1, 18—. Said R. S. agrees to have said work fully completed by the first day of , 18—. In witness whereof, the said R. S. and the said F. S., in his capacity as engineer only, have hereunto set their hands the day and year above mentioned. Approved by us, , 18—. R. S., F. S. W. H., C. A., M. D., County Commissioners. 127-130. Form of contractor's bond. Know all men by these presents, that we, R. S., L. R., and M. S., of the county of , and State of Ohio, are held and firmly bound unto the board of commissioners of county, for the use of said county, in the sum of dollars; for the payment of which sum we bind ourselves, jointly and severally, our heirs, executors, and administra- tors. Done at , this day of , a. n. 18 — . The condition of the above obligation is such, that if the saiu. *.». S. shall well aud truly perform the stipulations upon his part to be per- without difficulty. The profile of said road is to be made part of these specifications. It is distinctly understood that no gravel that the contractor places upon the road shall be paid for unless said gravel is of a quality en- tirely satisfactory to the superintending engineer and commissioners of said county. All matters mentioned in the contract to be fully binding upon the contractor; and if he fails to complete the road within the time required in contract, and unless the weather will not permit them, the commissioners and engineer shall have the right to relet the same to some other person. Sub -contra cling. — The contractor shall positively not let, sub-let, or con- tract any portion of the same to any other person ; but must personally superintend all of the work upon said contract; and no estimate shall issue to any other person except the contractor who signed the contract. Nor will any other person be recognized in charges of the whole or any por- tion of said work. All culverts must be put in and -railed up to before any portion of the grade is or will bo accepted. These specifications shall and will be strictly adhered to, without regard to contractor or contract price at which the same was bid off. CHAP. 8, 131-133.] TWO MILE ASSESSMENT PIKES. 227 formed, of 1 a certain agreement of even date herewith for the con- struction of [sections , if so, of] the improvement of the X. and Y. road in township of said county, entered into by said F. S., as engineer and superinteudent of said improvement, and R. S , as parties to said agreement, then this obligation shall be void; other- wise it will remain in full force. R. S., L. R., M. S. Approved by us, , 18 — . W. H., C. G., M. D., County Commissioners. 2 131. Assessment of estimated expense. — When any such improve- ment is ordered, the commissioners must immediately appoint three disinterested freeholders of the county, who must, upon actual view of the premises, apportion the estimated expense of the improve- ment upon the real property embraced in the order, according to the benefit to be derived from the improvement, and report the same to the county auditor. 3 132. In making such apportionment, these freeholders must take into consideration previous special assessments, or special taxes, made upon such real property for the improvement of any road, and any benefit which will accrue to any land by reason of drainage re- sulting from the making of the improvement. 4 133. If any of the lands to be assessed are subject to a life es- tate, the assessment made thereon must be apportioned between the owner of the life estate and the owner of the fee in proportion to 1 Some counties have printed forms, with suitable blank spaces for dates, names, etc., of contract and bond, the contract on the left-hand page and the bond on the right-hand page of the same sheet, and the two are thus filed and kept together. In such case, the bond may here be worded, "of the annexed agreement," and the description of the agreement may be omitted. 3 See note 2, page 2. 3 § 4842, as amended, 77 O. L. 240. 4 § 4842, as amended, 77 O. L. 240. County commissioners were duly mak- ing an improvement under this chapter; and before any contract was made or assessment ordered, § 4842 was amended, by which the rule of apportion- ment was materially changed. Held: that the amendatory act applied to the proceedings, and the assessment made in conformity to its provisions is right. Comm'rs v. Greene, 40 O. S. 318. Where a one mile and a two mile assessment pike are being constructed, and the territory between them is divided upon a certain tract of land, upon which the latter road only is situate, the tract should be taxed for the latter road only. Opinion of Lawrence, Attorney-General. 228 ROAD LAWS OF OHIO. [CHAP. 8, 134-136 the relative value of their respective estates, such proportion to be ascertained upon the principles applicable to life annuities. 1 134. Concerning list of lands and lots for apportioning committee, etc. The list of lands and lots to be assessed, being, an important mat- ter, should be made out accurately by some competent person, such as the surveyor or engineer who made the profile of the road and plat of the lands assessable. This list may be as follows, the " R. T. S." columns being for " Congressional Survey" lands, and the " Description" column, which should be wide as possible, being for " Virginia Military Survey " and other irregularly shaped lands, or lots. Each tract or lot should be separately mentioned, as on a tax duplicate, even though two or more of them have the same owner. 135. LIST OF LANDS AND LOTS WITHIN TWO MILES OF THE X. AND Y. IMPROVED ROAD, AND ASSESSABLE THEREFOR. Owner's Names. T. No. of Acres or of Lot. Description. Assessed by Committee As chang'fl by Com'rs. 136. To the beginning of this list may be affixed the order to the apportioning committee, given below ; and after that committee have filled up the column marked "Assessed by Committee," they may annex to the list their report, and return all these to the commis- sioners. This order, list, and report might well be on sheets of paper of uniform size, say eight and a half by fourteen inches, and J § 4842, as amended, 77 O. L. 240. For explanations of the principles applicable to life annuties, and for full tables for ascertaining such relative values, see Giauque& McClure's "Dower and Curtesy Tables," recently published by Robert Clarke & Co. As the apportionment committee are not likely to understand such mat- ters, they may, under their implied powers, get competent assistance as to this; or if they do not properly apportion between these owners, the com- missioners may correct their assessment in this respect as in others. Seo par. 154 chap. 8, 137-143.] two mile assessment pikes. 229 be inclosed, for the purpose of keeping them clean and dry, and for the purpose of giving a convenient backing to write on at the different places where the committee may go to view lands, in a cover of their own, or in the cover of an old blank book of the proper size. If the list is too long for one sheet, it can be continued on another of the same kind. 137-142. Form of order for apportionment Auditor's office, county, Ohio, , 18 — . ToD. P., E. Q., and F. R.: Gentlemen: Whereas, the county commissioners of said county have, upon the petition of A. B. and others, ordered the improvement of a certain road known as the X. and Y. Improved Road, leading from to , along the following route: [stale the route as in said order .] And whereas, said commissioners have appointed you as a commit- tee to apportion the expense of said improvement, estimated at dollars, upon the real property embraced in said order, You will, therefore, on the day of , IS—, at — o'clock m., meet at this office [or say where], and after there being duly sworn, 1 and receiving such instructions as desired, you will proceed forthwith, and from day to day thereafter, as the discharge of your duty may require, upon actual view of the premises specified in the list hereto annexed, to make out the said apportionment according to the benefit each piece of said land will derive from said improvement, and report the same to the county auditor as soon as practicable. In making said apportionment, you will take into consideration previous assessments made upon such real property for the improve- ment of any road under the provisions of the statutes of Ohio relat- ing to Two Mile Assessment Pikes, and also any benefit which will accrue to any land or lands by reason of drainage resulting 'from the making of said improvement. By order of the county commissioners. W. C, Auditor of county. 143. Notice to committee of (heir appointment.— The committee so appointed may be notified of their appointment by giving to each one of them a copy of the foregoing order, or by giving to each of ■The statute, in paragraphs 131-133, does not specifically require any oath; but in analogy with all similar cases, and perhaps in compliance with \ 2, R. S., they should be sworn. As to oath, see paragraph 42. 230 ROAD LAWS OF OHIO. [chap. 8, 144-152 them a notice similar to the one in paragraphs 56-58 of chapter 2, substituting " one of a committee to apportion the expenses," instead of "viewer," and making such other slight chauges as necessary. 144-146. Report of the apportioning committee. To the board of commissioners of county, Ohio : We, the undersigned committee, appointed by you at your session, 18 — , to apportion the estimated expenses of the improvement of the X. and Y. Improved Road, as described in said order, met as directed, and after being duly sworn, as will further appear by the cer- tificate of said oath hereto attached, assessed, upon actual view of the premises required, the estimated expenses of said improvement on said lands and lots as shown in the annexed [or, following, if so'] list; all of which is respectfully submitted. , 18 — . D. P., E. Q., F. R., Apportioning Committee. 147. Notice of report. — When the report of the committee is re- turned, the county auditor must give notice thereof by publication in some newspaper published and of general circulation in the county, for at least three consecutive weeks, of the time when the commis- sioners will meet at the county auditor's office to hear the report. 1 148-152. Form of notice that apportioning committee's report is on file. X. AND T. ROAD ASSESSMENT NOTICE. Notice is hereby given to owners of lands and lots heretofore assessed for the estimated expense of improving the X. and Y. Improved Road that the report of the apportioning committee is now on file at the auditor's office of county, and that the county commissioners will meet at the auditor's office, in , Ohio, on the day of , 18 — , at o'clock a. m., to hear the report of the apportioning committee and any and all exceptions thereto by any person interested, and con- firm, recommit, or modify said report as may be legal and just. The following schedule exhibits the names of the persons whose lands are assessed for the expense of said improvement, with the amounts set opposite their names respectively : 2 1 1 4843. 2 It is probable that a notice omitting the names of property-holders and amounts assessed would be strictly legal and sufficient. Yet there are many obvious reasons for giving these names and amounts. However, if desired, the following shorter form of notice may be used: " Notice of hearing is hereby given that the committee appointed to ap- CHAP. 8, 153-155.] TWO MILE ASSESSMENT PIKES. 231 TOWNSHIP. L., J. A $ 58 M., R. and H. 8 same T. R. 17 23 same, T. E., 23 93 same, - J ° [etc.] TOWNSHIP. B., J. W $ 76 B., L. C, " 80 [etc, and so through each township affected.] All exceptions to said report and assessment must be filed in writing at the auditor's office, in Ohio, on or before the day of hearing and each one will be heard in the order of date of filing his or her objections. June 21 18 . W. C, County Auditor. 153. Proof of publication, and filing of.— Proof of publication of the foregoing notice should be made as directed in paragraphs 21-23 of chapter 2, and this proof should be filed with the county audi- tor. 154. Commissioners' proceedings on report. — The commissioners must meet on the day named in the notice ; and if no exceptions have been filed to the report, must confirm it ; but if exceptions in writ- ing have been filed by any of the owners of the lands affected thereby, they must first proceed to hear such exceptions', and for that purpose must hear any testimony offered by any party interested. Either of the commissioners may administer oaths to witnesses; and after such hearing they may either confirm the report, change it, or refer it to a new committee of three disinterested freeholders. 1 155. Form of exceptions. — Such exceptions will vary greatly in portion the estimated costs of the X. and Y. Road Improvement have filed their report of assessment of said improvement in the office of the auditor f county, Ohio. And the board of commissioners has appointed , 18 , the time to hear exceptions to said assessment at the auditor's office of said county; and if no exceptions be made, the board will proceed to confirm said report." w - C i Auditor. i§4843. 232 ROAD LAWS OF OHIO. [chap. 8, 156-161 different cases; but the form given in paragraphs 77-81 and 156- 160 may suggest what is wanted. 156-160. Entry, confirming, changing, or rejecting committee's report. In the matter of the X and Y Road ) E as to H of eommittee . Improvement. [See note, 2, p. 41/. J ) On motion of . D. P., E. Q., and F. R., heretofore appointed by the commissioners of county, Ohio, to apportion the expense of said improvement upon the real property reported by the viewers as benefited, having filed their report in the auditor's office of said county, and this being the day fixed for the hearing of said report, and exceptions to the same, and the commissioners having met to consider the matter, and proof being made satisfactory to the board that lawful notice had been given of the time and place set for said hearing, thereupon the cause came on to be heard, and all persons interested were granted a hearing before the board. [Here say, if so, including 0. K. and L. M., who had filed exceptions in writing to the amount of their assessment, etc., as may be~\. After a careful examination of said report [and hearing all excep- tions thereto, if so], the board ordered that said report be confirmed, and that the auditor place the same on a special duplicate for collec- tion, as required by law [or, the board ordered that the following changes and additions be made in and to the assessments reported by said committee (and no others) : Add to E. R.'s assessment, $ , making same $ Add to R. M.'s assessment, , making same Add to M. R.'s assessment, , making same Deduct from J. K.'s assessment, , making same Deduct from W. W.'s assessment, .making same Assess L. P., heretofore omitted, And that said report, as changed above, be confirmed, and that tne auditor place— [and finish as above— or, that said report be not confirmed, but be referred to G. S., H. T., and I. U., three disinterested freehold- ers, as a new committee of apportionment, who are hereby directed, upon actual view of the premises, to report a new apportionment ol the expenses in said matter as per order to the former committee, or to recommend the confirmation of the former committee's report, as to them may seem best and right]. [Signed by < 'ommissioners.] 161. Proceedings on a re-reference. — If the report be referred, the new committee must, upon actual view of the premises, report a CHAP 8,162-168.] TWO .MILK ASSESSMENT PIKES. 233 new apportionment, or recommend the confirmation of the former report. 1 162-165. Form of new committee's report. To the board of commissioners of county, Ohio : We, the undersigned, new committee, appointed by you at your session, 18 — , to report a new apportionment of the expenses in the matter of the X and Y. Road Improvement, or to recommend the confirmation of the former committee's report, met at , and, after being duly sworn, as will further appear from the certificate of said oath hereto attached, and made actual view of the premises required; and we recommend* the confirmation of the former committee's re- port. [If that report, with some, but not too numerous, changes, is recommended here add — making therein the following changes and additions (and no others) — add to E. R.'s assessment $ , making it $ [etc., as in entry on page 232.] [If a new report is made, continue from the * above — that the estimated expenses of said improvement be assessed on said lands as shown in the following or annexed list. Give or attach list as directed in pars. 136 and 145, above.'] 166. Proceedings on return of new report. — Upon the return of such report to the county auditor, the same proceedings must be had as upon the return of the first report, except that there can not be a re-reference to another committee ; and the final action of the com- missioners must be entered upon their records, together with the re- port as confirmed, showing how the estimated expense has been ap- portioned upon the lands ordered to be assessed. 1 167. Assessment may be increased or diminished. — After the work is completed, the county auditor, before placing the assessment upon the duplicate, must add to or deduct from the estimate, pro rata, the amount that the actual expense may be found to be more or less than the estimate. 2 168. Spec inl duplicate for assessments. — All assessments on lands, under the provision of this chapter, must be placed upon a special duplicate, to be provided by the county auditor, at the expense of the county. 3 1 g 4844. 2 § 4845. See also paragraph 183, below. 3 2 4845. See note 3, page 691. 234 ROAD LAWS OF OHIO. [chap. 8, 169-171 169. Costs paid by county. — The costs and expenses of the pre- liminary survey, proceedings, and report of the improvement, must be paid out of the county treasury. 1 170. Assessments, how enforced; bonds for delinquencies; report to court. — When an assessment, made upon any real estate by virtue of proceedings had under this chapter, remains unpaid for the period of one year after it is placed upon the special duplicate, the auditor of the county in which such real estate is situate, must, unless otherwise ordered by the county commissioners, place it upon the general duplicate for collection, together with a penalty of six per cent per annum as county improved road taxes; and the amount of delinquent tax thus placed on the general duplicate must be charged, respectively, to the several improved roads on account of which such assessments have been made as a transfer from the county improved road fund. The commissioners of the county are authorized to issue county improved road bonds not exceeding the amount of such delinquencies after each semi-annual settlement between the auditor and treasurer for a term of years, not exceeding three, at a rate of interest not exceeding six per cent, payable semi- annually, for the payment of which, both the principal and interest, the faith of the county must be pledged. The money arising from the sale of the same must be charged to the county improved road fund. The commissioners, in their annual report to the court of common pleas, must fully set forth the amount of tax transferred and bonds sold as provided in this paragraph.' 2 171. Bonds may be issued and sold. — For the purpose of raising the money necessary to meet the expense of the improvement, the commissioners of the county may issue the bonds of the county, payable in installments, or at intervals not exceeding in all the pe- riod of twenty years, bearing interest at a rate not to exceed six per cent per annum, payable semi-annually. These bonds can not be sold for less than their par value. The assessment must be di- vided in such manner as to meet the payment of principal and interest of the bonds, be placed upon the duplicate for taxation against the lands assessed, and collected in the same manner as other taxes; and when collected, the money arising therefrom can 1 \ 1845. ' \ i860, as amended, 82 O. L. 70. CHAP. 8, 172-173.] TWO MILE ASSESSMENT PIKES. 235 be applied to no other purpose than the payment of the bonds and interest. No bonds can be delivered, or money paid to any con- tractor, except on the estimate of work done, as the same progresses or is completed. 1 172-174. Form of order to deliver bonds. $ . , 18—. To the auditor of county : Div. No. . Certificate No. . Bond No. . R. S., contractor, is entitled to dollars, in the bonds of the X. and Y. Improved Road, as part payment for the labor and material furnished for making improvements on said road. Bond dated , 18—. Due , 18—. F. S., Eng. and Supt. x l 4846, as amended, 80 O. L. 4. The act of March 29, 1867, and the acts amendatory and supplementary thereto, commonly called the Two Mile Road Improvement Laws, authorize the commissioners of counties, for the purpose of raising money necessary to meet the expenses of road improvements, "to issue the honds of the county," and thereby create a debt of the county in its quasi corporate ca- pacity, notwithstanding they also require the commissioners to assess the cost and expense of the improvement upon the lands benefited thereby and situate within two miles thereof. When, from any cause, sufficient money be not realized from such local assessments to pay the debt so created, it is the duty of the commissioners to levy a tax therefor upon all the taxable property of the county. (See par. 178.) A purchaser of such bonds, who has no actual knowledge of any defect in their execution, is not bound to look beyond the findings and record of the commisssoners, for the purpose of ascertaining whether conditions precedent to their execution have been performed. State ex rel. (Horseman) v. Com- missioners, 37 0. S. 5-16. In cases where a specific duty is enjoined by law upon the board of county commissioners to be performed in a specific manner not involving judicial discretion, and when performance by the board is due it refuses to act, it may be compelled to do so by mandamus. Commissioners v. Hunt, 33 O. S. 169. The county commissioners having accepted, as completed according to contract, a road improvement ordered by them to be made in pursuance of statutes authorizing payment therefor to be made in bonds of the county, to be issued to the contractor on completion of the improvement and accept- ance thereof, and the commissioners refuse to deliver to the contractor the bonds to which he is entitled, mandamus and not appeal, is the proper remedv for redress. lb. 236 ROAD LAWS OF OHIO. [CHAP. 8, 174-182 175-180. Form of bond. $ . United States of America, State of Ohio, county: \ per cent bond, No. . ) By virtue of the provisions of the statutes of said state relating to Two Mile Assessment Pikes, and in pursuance of proceedings in ac- cordance therewith, the board of county commissioners of said county have made an order for the improvement of the X. and Y. Improved Road in said county, and the same has been put under contract, and is in process of construction; and to pay the expenses of such improve- ment, this bond is issued, as authorized by section 4846 of said statutes. Therefore, the county commissioners of said county, Ohio, do hereby acknowledge to owe to , or bearer, dollars, payable at the treasurer's office of said county, on the first day of , 18 — , with interest thereon at the rate of per cent per annum, payable semi- annually on the first days of the months of and , on pre- sentation of the proper interest warrant at said treasurer's office; and for the payment of said principal sum, and of the interest thereon, the faith of said county is hereby pledged; and sufficient taxes will be levied on the lands and lots assessed to fully pay for said improvement. In witness whereof, the commissioners of said county have hereunto set their hands and affixed the seal of said county, at , on the day of , 1 8 — . [seAl.] [Signed by commissioners.'] [( imnter signed by county auditor.] Interest War- rant, No 6. Interest War- rant, No. 1. Interest War- rant, No. 7. Interest War- rant, No. 2. Interest War- rant, No. 8. Interest War- rant, No. 3. Interest War- rant, No. 9. Interest War- rant, No. 1. Interest War- rant. No. 10. Interest War- rant, No. 5. 181 , 182. Form of interest warrant, or coupon. INTEREST WARRANT No. 1. On the 1st day of March, 1887, the Treasurer of County, Ohio, will pav the bearer Dollars. for interest on Bond No. , for the X. and Y. Improved Road. ...Ohio, 188 W. C, Auditor. INTEREST WARRANT No. 10. On the 1st day of September, 1891, the Treasurer of County, Ohio, will pay the bearer Dollars, for interest on Bond No — for the X. and Y. Improved Road. ...Ohio,.... 188.. W. C, Auditor. CHAP. 8, 183-186.] TWO MILE ASSESSMENT PIKES. 237 183. When assessment is insufficient-Kit be ascertained by the county auditor that the assessments on land upon the duplicate are not sufficient to pay for the construction of any such road, he must add to the assessments, pro rata, the amount that the actual expense is found to be more than the assessments on the duplicate ; and the additional assessments must be placed upon the same duplicate with previous assessments for the construction of the same road, and must be collected in like manner. 1 184 How excess of assessments to be distributed.— Any balance ot assessments made for the construction of any such road, remaining in any county treasury after the payment of all expenses incurred on account of the road, must be certified by the county auditor into the treasuries of townships through which the road is located, pro- portionately to the amount paid for the making of the same in each of the townships, to be expended under the order of the township trustees in repairing the road. 2 185. But in counties where the county commissioners are consti- tuted a board of turnpike directors, such unexpended balance must be transferred to the general improved road repair fund for such county. 2 . , 186 Cities and villages may assist in construction.— \V hen any road to be improved under and by virtue of this chapter begins or ter- minates in a city or village, its corporate authorities may, upon the recommendation of the county commissioners, if they deem the same expedient, agree to pay in the bonds of such city or village, in the manner and proportions described in paragraph 171, in addi- tion to any amount that may be assessed upon the real property within such corporation by virtue of the provisions of this chapter, an amount not exceeding one-fifth of the entire cost of the road ; but the entire tax to be imposed for road purposes, by virtue ot this paragraph, must not in any year exceed five mills on the dollar ot the taxable p roperty in the corporation . s , ? 4g47 2 1 4848, as amended, 79 O. L. 40. 3 3 4850, as corrected, 77 O. "L. 56. A suitable form of bond can readily bo adapted from the form given in pars. 174-182. . The corporate authorities, it appears, need only the recommendation of the county commissioners to enable them to agree to pay in bonds, and con- sequently to issue the bonds mentioned in this paragraph. They may, ho*- 238 ROAD LAWS OF OHIO. [chap. 8, 187-192 187. Cities in adjoining county may aid. — When it is desirable or expedient to continue any road contemplated under this chapter, into or through an adjoining county, the city council of any city of the first or second class may, if they think it would promote the general interests of their city, and if their county commissioners recommend it and apply therefor, aid in the construction of the road to an extent not exceeding one-fifth of its cost, the payment of the same to be provided for in the manner and proportions described in paragraph 17 1. 1 188. Contracts for material. — The commissioners may contract for and purchase such stone, gravel, or other material as may be neces- sary for the construction and repair of the road. 2 189. Application for appraisers of material. — If the commissioners and owner of such stone, gravel, or other material can not agree on a price deemed fair and reasonable, the commissioners may apply to the judge of the probate court of the county, or if such material is located in another county than that in which the road is located, then to the judge of the probate court of the county in which such material is located, to appoint appraisers to assess the value of the material. 3 190-192. Form of ajjplication. To the honorable the judge of the probate court in and for county, Ohio: The undersigned, 4 county commissioners of county, Ohio, rep- resent that [slate what material, and about how much of it], owned by , located at , in county, Ohio, is necessary for the construction [or-, repair, or, both'] of the X. and Y. Improved Road duly established in ever, choose to proceed as provided in g§ 2835-8 before agreeing to pay as above mentioned. 1 \ 4851. See note to par. 186, above. * 24853. 3 §4854. 4 The application in case of one mile assessment pikes may follow this form to here, then continue, " represent that they were, in , 18—, duly ap- pointed and qualified as the commissioners of the V. and W. Free Turnpike Road in said county, which road has been duly established, and that they arc now and ever since said time have been acting as such commissioners: all according to the laws relating to One Mile Assessment Pikes: that [state what material, and about how much of it], owned by , located at , in county, Ohio, is necessary for the construction [or, repair, etc.] of said road, and that said commissioners have endeavored [and continue as above]. CHAP. 8, 193-200.] TWO MILE ASSESSMENT PIKES. 239 said county of , and that said commissioners have endeavored to purchase said material from said owner for said purpose, but that said commissioners and owner can not agree on a price therefor deemed fair and reasonable. Said commissioners therefore apply to said judge to appoint apprais- ers to assess the value of said materials, according to law. , , , Commissioners as aforesaid. 193. Notice of application. — An order must then be entered of rec- ord in the office of such probate court, directing that notice in writ- ing be served by the commissioners, upon the person whose property is sought to be appropriated, not less than ten days before the fur- ther proceedings provided for below shall be had. Such notice must contain a brief description of the property sought to be appro- priated, and state the use to which it is to be put, and the time when further proceedings are to be had. 1 194-197. Form of order to give notice. In the matter of the X. and Y. Improved 1 Order to notify owner of road Road. i material, etc. This day came the county commissioners of county, Ohio, 2 and applied in writing to this court for the appointment of appraisers to appraise the value of [state briefly what materials], owned by , located at , said commissioners representing that said material is necessary for the construction [etc.'] of said road, and that they and said owners can not agree as to the price thereof. It is therefore ordered that further proceedings as to said applica- tion will be had on the day of , 18 — , at o'clock — m., and that said commissioners serve notice, in writing, on said owner, of said application and of the time set for further proceedings thereon. 198-200. Form of notice to owner. To : You are hereby notified that on , 18—, the undersigned, com- missioners of county, Ohio, filed an application in the probate court of county, Ohio, for the appointment of appraisers to assess the value of [state ivhat materials], located at , owned by you. wanted by us to use in constructing the X. and Y. Road at [or, otherwise state the use to be made, as may be], and as to the price of which materials we ^4854. 2 [Or, for chapter 7. F. R., G. S., H. T., the commissioners of said road.] 240 ROAD LAWS OF OHIO. [chap. 8, 201-207 and you have failed to agree; and that further proceedings as to said application will be had in said court on the day of , 18 — , at o'clock — M. Dated , 18 — . \Signed by the commissioners.^. 201. How notice served. — A copy of this notice should be served on the owner of the materials wanted, and the original notice should be returned to the court, with an affidavit as to its service annexed or attached. Such affidavit can be adapted from the one in para- graphs 65-69 of chapter 2. 202. The law in this chapter makes no provision for notice by publication in case such owner can not be found. 1 203. Appointment, duties, and award, of appraisers. — Upon the day so fixed, the probate court before whom such application is filed must appoint three disinterested freeholders, who, after being duly sworn to impartially assess the value of the material, or any part of the same, must enter upon the premises of the owner and assess the value thereof; and they must also assess the damages that will ac- crue to the owner by the removal of the material through his prem- ises, and must, within ten days after their appointment, return their award to the probate court. 2 204-207. Form of order, appointing appraisers. [Give caption as in paragraph 194, ahove.~\ The application of the commissionei's of county, Ohio, for the appointment of appraisers to assess the value of certain road materials owned by , coming on this day to be heard, as per previous order of this court herein, and it appearing that said \owner~] has been duly notified of said application and hearing thereof, and said \owner~\ being present at said hearing [or, having jailed to appear, etc., as may be~\, It is ordered that A. M., B. N., and C. O., three disinterested free- holders of county, be and they are hereby appointed as said ap- praisers, and that they, being first duly sworn to impartially assess the value of said material, or any part of the same, enter upon the prem- ises of said owner and assess the value of said material or part thereof as may be required, and that they also assess the damages that will accrue to said owner by the removal of said material through his prom- ises; and that they, within ten days after their appointment, return their award to this court. 1 But see §6411, and § 5048. par. ?,. 2 ? 4855. chap. 8, 208-219.] two mile assessment pikes. 241 It is further ordered that said appraisers be notified of their appoint- ment and duties thereunder by said commissioners [or, sheriff of said county, etc., as may be]. 1 208-212. Form of notice to appraisers. Office of Probate Judge of county, Ohio. To A. M., B. N., and C. 0. : You have been appointed by the probate court of county, Ohio, to appraise the value of [describe the materials], owned by , located at , in county, Ohio, which the county commissioners of county, Ohio [or, said county], consider necessary for use in constructing [or, repairing, etc., as may be] the X. and Y. Improved Boad in said county of , and as to the price of which road mate- rials said commissioners and owner can not agree.. You are ordered by said court and required by law to be first duly sworn impartially to assess the value of said road materials or any part thereof wanted by said commissioners, and then to enter upon the premises of said owner to the place where said materials are and assess the value of said material, or part thereof, and also to assess the dam- ages that will accrue to said owner by the removal of said material through his premises, and to return your award to this court on or be- fore the day of , 18 — . Witness my hand and the seal of this court, this day of , 18 — . A. G., Probate Judge. 213-218. Form of oath of appraisers. — On the same sheet as this order, or annexed thereto, should be a certificate substantially as fol- lows : State of Ohio, county. Before me, the undersigned authority, personally came A. M., B. N. and C. 0., who, being duly sworn, say that they will impartially as- sess the materials owned by and described in the foregoing [or, annexed] order, and perform the other duties imposed upon them by said order and by reason of their appointment as appraisers of said ma- terial to the best of their ability. [Signed by the appraisers here.] Sworn to and subscribed before me on this day of . 18 — . A C, Notary Public, county, Ohio [or other officer]. 219. Form of appraisers' report. — On the same sheet as the fore- 1 See note 1, page 82, as to how certain notices are to be given, when the statute does not specifically provide. 16 242 ROAD LAWS OF OHIO. [chap. 8, 220-228 going order, or annexed thereto, the appraisers should report in writing substantially as follows : 220-224. To the honorable the judge of the probate court in and for county, Ohio : We, the undersigned, appraisers appointed in the foregoing [or, an- nexed] order, respectfully report that, after being duly sworn, as will more fully appear from the certificate of oath hereto annexed, entered upon the premises of the owner, M. O., named in said order, and, after viewing the materials described in said order [and shown to us by said commissioners and owner, if so], do appraise the value of said mate- rials as follows : yards of 1 gravel, per cubic yard perch of 1 limestone, per perch of 25 cubic feet. Seven oak trees, per tree [or, per 1000 feet] [Etc.] Total value of materials wanted by said commissioners. Dollars Cts We assess the damages that will accrue to said owner by the re- moval of said material through his premises at $ Witness our hands this day of , 18 — . [Signed by the appraisers.] 225. Affirmance of award; copies furnished. — The judge of the probate court must, upon the return of the award, furnish the commissioners, on application, a copy of it, and also furnish a copy to the owner of the material; and thereupon, if neither party sig- nify an intention to appeal to the court of common pleas, the pro- bate court must at once render judgment for the amount of com- pensation and damages awarded by the appraisers, and order that, upon payment of such sums and costs, the commissioners may enter upon the lands, either inclosed or uninclosed, and remove such material as may be required to make the road. 2 226-228. Form of judgment, confirming appraisers? award. [Give caption, as in paragraph 156, above.] Tli is day came the appraisers, appointed herein on , 18 — , to 1 If the quantity wanted is not known, the appraisement may simply give the price per yard, perch, etc., leaving the total amount of money to be paid to be computed later by the commissioners and owner. The damages to ac- crue for removal should, however, be assessed in every case. 2 § 4856. Compare par. 93, chap. 7. chap. 8, 229-236.] two mile assessment pikes. 243 appraise the value of road material wanted by the county commission- ers of county, Ohio, for said road, and made return of their award, which, upon examination, is found to be in due form and is confirmed. It is therefore ordered that, upon said commissioners paying to said M. O., for said materials, the sum of $ , and for damages that will accrue to said M. 0. by the removal of said materials through his premises, $ , and the costs herein, taxed at $ , said commission- ers may enter the lands of said M. 0., inclosed or uninclosed, and re- move therefrom the materials so appraised and required for said road. Thereupon [if so. See next paragraph] gave notice of appeal to the court of common pleas. He is [or, they are] therefore required to give an appeal bond in the sum of $ , conditioned according to law. 229. Appeals to the common pleas. — An appeal from the decision of the appraisers to the court of common pleas may be allowed, if taken within thirty days after the rendering of the award. Either party desiring to appeal must give notice at the time, or within three days thereafter, of his intention to appeal to the court of com- mon pleas. Thereupon the probate court must require such appel- lant to enter into a bond, in a sum not exceeding the value of the property sought to be appropriated, conditioned that the appellant shall perform the judgment of the court of common pleas, and pay all costs and damages adjudged or ordered by such court. 1 230-232. Form of notice of appeal (see last part of preceding form, if notice of appeal be given at once). \_Give caption] To the honorable the probate judge in and for county, Ohio: The undersigned gives notice of appeal to the court of common pleas from the final order of said probate court rendered in said mat- ter on the day of , 18 — , confirming the award of the apprais- ers as to the value of certain road material designated in said final order. [Signed by appellant] , 18—. 233-236. Form of entry as to appeal and bond. [Give caption] This day came and gave notice [and continue in same words as in notice above, then add ] 1 1 4857. 244 ROAD LAWS OF OHIO. ' [chap. 8, 237-244 Said [name the appellant] is therefore required to enter into an appeal bond to said [the other party] in the sum of $ within days, con- ditioned according to law. 237-241. Form of appeal bond. Know all men by these presents, that [name the appellant or appellants], as principal, and P>. F. and C. G., as sureties, are held and firmly bound unto [name the appellee] in the sum of dollars, for the payment of which we hereby bind ourselves, our heirs, successors, and representa- tives, by these presents. Signed by us at -, on this day of , 1 8 — . The condition of the foregoing obligation is such that, whereas, the said appeals to the court of common pleas of county, Ohio, from the final order of the probate court of said county, made on the day of , IS — , confirming the award of the appraisers ap- pointed by said probate court in a certain proceeding relating to the assessment, by said appraisers, of the value of certain road material owned by M. O., wanted by the commissioners of for use on the turnpike road, and to the assessment of the damages that would accrue to said M. (")., by the removal of said material through his premises. Now, if the said shall perform the order of the said court of com- mon pleas, and pay all costs and damages adjudged or ordered by said court, then this obligation shall be void. [Approved by probate judge.] [Signed by principal and sureties.] 2 242. Sending case to common pleas; jury trial. — When such bond is filed, the probate court must send all the original papers in the proceeding, with a certified copy of the journal entries made in the cause, to the clerk of the court of common pleas. In that court a jury of twelve men must be impaneled according to law, to try and determine the amount of compensation and damages that must be awarded; and such proceedings must be had as are provided by law to appropriate private proj^erty for public use. 2 As to such pro- ceedings, see chapter 19. 243. Appeal tvill not delay taking of material. — Such appeal will not prevent the immediate entry upon the premises by the commis- sioners, for the purpose of taking material." '2 I 1. When the road is in more than one county. — When any pro- posed road improvement contemplated by this chapter is in more 1 See note 2, page 2. 2 § 4857. chap. 8, 245-250.] two mile assessment pikes. 245 than one county, application must be made by petition to the com- missioners of each of the counties ; and the commissioners of such counties, upon the petition and bond being filed in their respective counties, must meet in joint session, at such time and place as the auditor of the county in which the principal petitioners reside shall appoint, in a notice to the auditor of each of the counties in which the petition has been filed. The auditor of the county in which the joint board meets must be the clerk of the board, and furnish a certified copy of all proceedings to each of the counties interested ; and in all subsequent sessions the joint board must proceed in all respects according to the provisions of this chapter. 1 245-248. Form of notice. Auditor's office of count}-, Ohio, , 18 — . To the auditor of county, Ohio : Sir: It appearing that a petition, asking for the laying out, establish- ment, etc., under the laws relating to Two Mile Assessment Pikes, of an improved road through the counties of and , has been filed with the commissioners of each of said counties, and it appearing that the principal petitioners for said road reside in this county, you are therefore hereby notified by me, according to law, that there will be a joint meeting of the commissioners of all of said counties at the commissioners' office of this county, at , on the day of , 18—, at — o'clock — M., to take such action in relation to said petition as the law and the circumstances require. W. O, Auditor of county, O. 249. Appeals in such cases. — Applications may be made by the joint board, to the probate judge of the county in which stone, gravel, or other material is located, to appoint appraisers to assess their value, and damages; and like proceedings must be had thereon as are provided in other cases. Any person feeling aggrieved by any decision of such appraisers may appeal from such decision to the probate court of such county, and such proceedings must then be had as are provided for appeals in paragraphs 47 and 48, above, and such orders and judgments must be rendered as are there pro- vided for, and as the necessities of the case may require. 2 250. Improved road* may be surrendered to county commissioners. — Any road, or part of it, constructed or improved by any corporate i§4858. » § 4859. 246 ROAD LAWS OF OHIO. [chap. 8, 251-254 body, or otherwise, may, after its completion, with the consent of the stockholders or contributors thereto, be relinquished and trans- ferred, without consideration, to the commissioners of any county in or through which it is located, together with all rights and privi- leges appertaining thereto — such transfer or relinquishment to be evidenced by a written declaration, executed by the president and secretary of such corporate body, or by the other owners. Upon the deposit of such instrument of writing, duly executed, with the county auditor, the commissioners, if satisfied that such road has been built in such manner as to make a good and lawful turnpike, and that there are no debts against it for its construction, must, by a proper order, cause the road to be entered of record as a free turnpike, within the meaning of this chapter; and thereafter such road or part of it transferred will be a free road, and must be kept in repair as provided in chapter 10. 1 251. Proceedings under the preceding paragraph, and the forms required, would be analogous in most respects to similar proceedings and forms in chapter 9, and in subdivision 3, of chapter 11. Ref- erence is therefore made to those chapters for forms readily adapted to use in cases contemplated in that paragraph. This is also at least equally true of the cases contemplated in the next paragraph. 252. County may purchase roads. — The county commissioners of any county may purchase and make free any turnpike road, or part of such road, within the limits of their respective counties, on the conditions and by the procedure which are provided for the con- struction or improvement of roads in this chapter. 2 253. Who may take advantage of errors. — No person can take ad- vantage of any error committed in any proceeding to lay out, con- struct, or improve a road under and by virtue of this chapter, nor of any error committed by the county commissioners or county audi- tor, or by the engineer or surveyor, or other person, in the proceed- ing to lay out, construct, or improve such road, nor of any infor- mality, error, or defect appearing in the record of such proceeding, unless the party complaining is affected thereby. 3 254. How far proceedings may be declared void. — But the court in l g 4861. See also chapter 9, for analogous provisions. 2 \ 4862. See par. 251, above, also chap. 9. s § 4863. chap. 8, 255-263.] two mile assessment pikes. 247 which any action is now pending, or may hereafter be brought, to enjoin, reverse, or declare void the proceedings by which any such road has been laid out, constructed, or improved, or ordered to be laid out, constructed, or improved, or to enjoin the collection of any tax or assessment levied or ordered to be levied for the purposes mentioned above, or of either, may, if there be manifest error in such proceeding affecting the rights of the plaintiff in such action, set the same aside as to him, without affecting the rights or liabilities of the other parties in interest. The court must, on the final hearing, make such order in the premises as may seem equitable and just, and may order the tax assessment levied against the plaintiff to re- main on the duplicate for collection, or to be again levied in whole or in part, or may perpetually enjoin it, or any part of it. The cost of such action and of the proceedings had therein must be ap- portioned among the parties, or paid out of the county treasury, in whole or in part, as justice may require and the court direct. 1 255. Compensation and fees.— The compensation of persons em- ployed under this chapter must be fixed by the county commission- ers, and can not exceed three dollars per day ; but the surveyor or engineer and the county auditor are to receive such compensation for their services as is fixed by law for the compensation of the county surveyor and county auditor respectively for like services in other cases.' 256. Record of proceedings, etc., must be made,— A complete rec- ord of the entire proceedings, including full copies of all petitions, bonds, orders, oaths, etc., and of all things done by or before the commissioners or court about such improvement, must be made in the proper book as the matter progresses or after it is done. 257-263. Form of record of road improvement Be it remembered, that heretofore, to wit: , IS— , at a regular session of the board of county commissioners of county, Ohio, held at ■ , a petition was filed with said board, which was in words and figures following, to wit: \_Hcre copy the petition.] 1 \ 4864. This and the preceding paragraphs govern all proceedings pend- ing when this law was passed (in 1862 and 1879), so far as applicable. § 4864. * \ 4849. In my opinion, the surveyor or engineer, appointed in pursuance of section 4841 Revised Statutes (amended 78 O. L. 227) to superintend the 248 ROAD LAWS OF OHIO. [chap. 8, 257-263 This petition was accompanied by an affidavit that notice had been given as required by law, which affidavit and notice were as follows: [Here copy the affidavit and notice attached.'] Thereupon a bond was filed with said board in the words and figures following, to wit : [Here copy the bond; and proceed in like manner to copy all orders, oaths, and other forms, and state all proceedings had, when had, etc.] performance and completion of the road improvement therein referred to, is entitled to receive four dollars per day for the time actually employed by him, but is not entitled to any allowance for mileage or expenses. By g 4849 Revised Statutes, he is to receive for said work such compensation as is fixed by law for the compensation of the county surveyor for like services in other cases. This, I take it, refers to the general provision in \ 1183 Revised Stat- utes, concerning the compensation of the county surveyor when employed by the day. Opinion of Lawrence, Attorney-General (1885). While § 4849 Revised Statutes is not very definite as to the compensation of the surveyor or engineer employed in the construction of two mile assess- ment pikes, I am of the opinion that the provision that he shall receive such compensation as is fixed by law for the compensation of the county surveyor for like services in other cases, has reference to § 1183 Revised Statutes, which is the only statute fixing the compensation of the county surveyor as such. The provisions as to compensation found in g§ 4506, 4527, 4604, and 4664, do not apply specially to the county surveyor, but to any surveyor or engineer designated for the work. Moreover, § 4604 does not fix the com- pensation of the engineer, but only the limit which it shall not exceed. Under \ 4798, the expenses of surveying and locating a one mile assess- ment pike are to be paid out of the county treasury, and not out of the funds appropriated to the construction of the road. As the sum paid the surveyor and his assistants out of the county treasury can only be so paid upon the allowance of the county commissioners, I am of the opinion that the amount of their compensation is to be fixed by the county commissioners, provided that the same shall not exceed the customary wages per day for like work. The determination of what is such customary wages is thus left largely to the discretion of the county commissioners. However, in determining this matter, I think that the county commissioners ought to look to the wages usually prescribed in the statutes for similar services, which, in the case of the surveyor, is four dollars per day. lb. See also, notes to par. 159, chap. 7 ; and notes, pp. 590, 592. CHAP. 9, 1-5. J CONVERTING TOLL, KOADS. 249 CHAPTER IX. CON VESTING TOLL ROADS INTO FREE ROADS. Subdivision 1. Sale of road to county, on petition of owners of adjacent lands. Subdivision 2. Vacation of turnpikes and plank-roads out of repair, and their conversion into free improved roads, by proceed- ings in probate court. Subdivision 3. Appropriation of unfinished turnpikes and plank- roads BY COUNTY COMMISSIONERS, AND CONVERSION OF SAME INTO COUNTY OR IMPROVED ROADS. Subdivision 1. Sale of road to county, on petition of owners of adjacent lands. 1 1. Owners may propose to commissioners to sell toll road. — The duly constituted officers of any incorporated turnpike company may, after obtaining the written consent of the owners of a majority of its stock, make a proposition to the county commissioners of the county in which its road, or any part thereof, is located, for the sale of such road or any part of it, in order that it may be converted into a free road as provided below. 2 2-5. Form of p>roposition. , IS—. To the board of county commissioners of county, Ohio: Gentlemen: We, the properly constituted officers of the Turn- pike Company, hereby propose to sell to your said county, the said turnpike [or, so much of the said turnpike as lies] in said county, in order that it may be converted into a free turnpike-road. We have obtained the written consent of the owners of a majority of the stock of said Turnpike Company to the foregoing proposi- tion [add, if so, which writing is hereto attached]. '[Signed.'] 1 Subdivision 3 of chapter 11 also provides for the sale or gift of such roads to the county in which they he. 2 §4865. 250 ROAD LAWS OF OHIO. [CHAP. 9, 6-17 6-7 . Form of consent. ,13-. We, the undersigned, stockholders of the Turnpike Company, do hereby consent that the officers of said company may offer to sell said turnpike [or, so much of said turnpike as lies] in county, Ohio, to said county, in order that it may be converted into a free turnpike. [Signatures.'] 8. Appraisement of the road and bridges. — The county commission- ers, upon the receipt of such proposition of sale, must appoint three competent disinterested freeholders of the county appraisers, who must, upon actual view of the road, make and return to the com- missioners, under oath, their appraisement of its actual cash value, and the actual cash value of the bridges and culverts which have been built thereon by such company. 1 9-15. Form of entry; appointing appraisers, etc. In the matter of converting the turnpike into a \ Appraisers ap- free road. [See note 2, p. 417; note 2, p. 22.] j pointed. A proposition from [state who, as in proposition] the duly constituted officers of the Turnpike Company having been made to this board, with the written consent of the owners of a majority of the stock of said company, proposing to sell to county, Ohio, in pursuance of the provisions of the statutes of Ohio relating to converting toll roads, said turnpike [or, so much of said turnpike as lies] in said county, This board do, therefore, appoint A, M., B. N., and C. 0., three com- petent, disinterested freeholders of said county, as appraisers, to appraise the same, upon actual view, and to make report in writing, upon oath, of the actual cash value of said turnpike-road, and of the bridges and culverts built thereon by said company, to this board, at its session on ' , IS — , in accordance with said statutes. Thereupon the board adjourned to meet , 18 — . Attest: P- B-» President of Board. W. C, Auditor and Clerk. 16. Notice to appraisers. — The appraisers should be notified of their appointment and duties. Such notice may be substantially like the concluding part of the precediug entry. 17. Oath of appraisers, etc. — The appraisers must be sworn, as mentioned above, and substantially as shown in the following cer- 1 1 4866. CHAP. 9, 18-27.] CONVERTING TOLL ROADS. tificate which should be obtained from the officer administering the oath, and attached to the appraisers' report, and filed therewith. 18-22. State of Ohio, county, ss. Before me, the undersigned authority, personally came A. M, B. N., and C who made solemn oath that they would, upon actual view thereof, make a true and impartial appraisement of the actual cash value of the turnpike-road in said county, of its bridges and cul- verts, and report the same, in writing, to the commissmners of said county. {.Signed.^ A M., B. N C. O. Sworn to and subscribed before me this day ot , . R. R., Notary Public in and for county, Ohio. \_Or other proper officer.] 23 Appraisers' report.— The appraisers should make out a report in substance as follows, attach it to the order to appraise and then file said certificate, order, and report with the county auditor with- out unnecessary delay. 24-26. Form of same. , 18—. To the commissioners of county, Ohio: We the undersigned appraisers, met in pursuance of the order, hereto attached, of your honorable board; and after being duly sworn af will further appear from the certificate of oath hereto attached, and upon actual view, and after a full and careful examination of the - turnnike-road, as specified in said order, do appraise the same at f — . We l^Z the bridges and culverts built thereon by said turnpike company at f— [and, if so, the ^^ R ^* ^^ 27 The commissioners may propose to buy.-The commissioners at their' next regular meeting after the receipt of the report of the appraisers, must, if they deem the valuation reasonable make a proposition to such officers for the purchase of the road, or any part of it, at the value reported by the appraisers, on the condi ion that a majority of the resident land-owners along and adjacent to the line of the road, whose lots and lands will be assessed for the purchase of the same, shall petition the county commissioners for an assessment, as provided in paragraph 37. 1 i§4867. 252 ROAD LAWS OF OHIO. [chap. 9, 28-35 28-30. Form of entry of filing report, and order to make proposition. The appraisers heretofore appointed to appraise the actual cash value of the turnpike-road have submitted their report, which is in the words and figures following: [Copy the report. .] On motion the report was adopted and the auditor directed to make, on behalf of this board, a proposition to purchase said road of the legally constituted officers of said turnpike road ; that the same may be converted into a free road, which proposition is to be on the statu- tory condition, that a majority of resident land-owners along and ad- jacent to said road will sign a petition for such conversion as contem- plated by statute, the amount to be $ for road and $ for its bridges and culverts. Payments to be made in the bonds of county, dated -, in equal amounts in one, two and three years, with interest from acceptance of this proposition at per cent per an- annum, payable annually. W. H., President Board of Commissioners. Attest: W. O, Auditor and Clerk. 31-34. Form of proposition. To [name the officers'] : The board of county commissioners of county, Ohio, offer to purchase said turnpike-road [or, so much of said turnpike-road as lies] in said county for the purpose of converting it into a free turn- pike-road, according to the statutory provision governing such matters, at the following appraised values, as fixed by appraisers duly appointed according to law : Said turnpike-road at $ ; the bridges and cul- verts thereon, built by said company, at $ . On this condition, however, that a majority of the resident land-owners along and adja- cent to the line of said road, whose lands and lots will be assessed for the purchase of the same, shall petition the county commissioners for an assessment to pay for the same, as provided by law. The terms of payment will be \_state them]. By order of said board, P. P., President of Board. W. C, Auditor of county. 35. Company may accept proposal. — The officers of such company may, after obtaining the written consent of the owners of a major- ity of the stock of the company, accept the proposition of the com- missioners for the purchase of the road, or any part thereof, situate CHAP. 9, 36-41.] CONVERTING TOLL ROADS. 253 in the county ; and such acceptance will be binding upon the com- pany for the space of six months succeeding its date. 1 36. Form of acceptance of 'proposition and of stockholders' consent. Such forms can be readily prepared from the forms of proposition and of consent found in paragraphs 6, 7, above. 37. Petition of land-owners for purchase. — After the filing of such acceptance with the commissioners, the resident land-owners along and adjacent to the line of the road, whose lots and lands will be assessed for the purchase of the same, may petition the county com- missioners of the county through which the road or any part thereof runs, for the purchase of the road at the appraised value ; that the bonds of the county be issued to such company according to its ac- ceptance, and that a sum sufficient to pay the amount with which they will be charged, together with the interest, may be assessed upon the lots and lands which would be benefited by the conver- sion of the road into a free "-oad, within no greater distance than two miles thereof. 2 38-40. Form of •petition. , 18—. To the board of commissioners of county, Ohio : We, the undersigned, resident land-owners along and adjacent to the line of the turnpike-road in said county, and within two miles thereof, whose lots and lands will be assessed to pay for the purchase of the same, respectfully petition your honorable body to purchase said road at its appraised value, as ascertained by the appraisement of A. M., B. N., and C. O. under your order to them of , 18 — , and that bonds of the county be issued to said turnpike company accord- ing to its acceptance of your proposition, now on file in jour office, and that a sum sufficient to pay the amount of the principal and interest of said bonds and costs that may accrue may be assessed upon all the lots and lands situated as above mentioned and which would be bene- fited by the conversion of said turnpike into a free road. [Signatures.'] [Signatures.^ 41. County to pay for bridges. — The cash value of the bridges and culverts which have been built by the company, as appraised by the appraisers, must be paid by the county commissioners out of the bridge fund of the county, less any amount they may have thereto- fore appropriated. 8 1 1 4868. 2 1 4869. 3 \ 4870. 254 ROAD LAWS OF OHIO. [chap. 9, 42-46 42. Hoiv assessments made. — In ascertaining what lots and lands are benefited, and to what extent each piece must be assessed for the purchase, and whether a majority of the owners thereof have petitioned therefor, the county commissioners, auditor, and treas- urer have the same power and authority provided in chapter 8, and must be governed in the assessment and collection of taxes to pay for the road so purchased, and in all other respects, so far as the same may be applicable, by the provisions of that chapter. 1 The forms in that chapter can readily be adapted for use in this, where forms are not here given. 43-46. Form of entry of fling petition, etc., and appointing apportion- ing committee. \_Give caption. See par. 9.] Whereas, a proposition was heretofore made by the commissioners of county, Ohio, to the stockholders of the turnpike-road company to purchase their said road, together with the bridges and cul- verts, on the statutory condition that a majority of the resident land- owners along and adjacent to said road and that should be taxed to pay for said road, at the price and on the terms heretofore submitted, and which sum is $ for said road, and $ for the bridges and cul- verts belonging to said company. And whereas, the duly constituted officers of said turnpike company have filed their acceptance of the proposition as aforesaid, And whereas, there was this day filed in the auditor's office a petition signed by A. B. and a lawful number of resident land-owners of said county, praying for the conversion of said toll road into a free road in pursuance of the provisions of the statutes of Ohio relating to converting toll roads, Therefore, in pursuance thereof, the board of commissioners ap- pointed D. P., E. Q., and F. K. to go upon the line of said road, and note the lots and lands and the amount that each should be assessed to reimburse the county in the amount of such purchase, together with interest and costs that may or shall accrue by reason of such sale and purchase; and direct that they meet for such purpose at , on the day of , 18 — , and make report in writing to this board at its regular [or, adjourned] session, 18 — . Thereupon the board adjourned to meet . Attest: W. C, Auditor and Clerk. W. H., Prest. Bd. of Com. 1 1 4871. CHAP. 9, 47-56 ] CONVERTING TOLL ROADS. 255 47. Notice to and duties of such committee. — An order must then be issued to such committee analogous to the one found on page 229, and they should be notified as directed in paragraph 143 on page 229. * 48. After receiving such notice, they must be sworn, and a cer- tificate of their oath should be given them to annex to their report, as specified on pages 29. They must then, upon actual view, apportion the cost of the purchase as prayed for in the petition, upon the lands to be benefited thereby, and situate not over two miles from said road, in such way as seems just and right; and they must make a report of their doings analogous to the report on page 228, varying the form there given as circumstances require ; and having attached it to the order to them, must file it with the county auditor with no unnecessary delay. 1 49-51. Entry, fixing day to hear exceptions. , 18—. In the matter of \_finish caption]. The assessment committee having filed their report, the board fix the day of 18 — , as the day for the hearing on said assess- ment. Thereupon the board adjourned to meet — — , 18 — . 52. Notice to land-holders. — The auditor should then give a notice similar to the one on page 230. 53-56. Form of entry as to hearing exceptions, etc. {Give caption.] , 18 — . This being the day fixed for the hearing on assessment of said pike and to determine whether a majority of land-owners, resident along and adjacent to the line of said road, had signed the petition for such conversion, and the commissioners, upon actual count and comparison, find a clear majority of in favor of said conversion. {Here say, if so — but if not, add matter after * on next page.] There being a number of the resident land-owners of said road pres- ent who were dissatisfied with the assessment as returned by the com- mittee, it was therefore ordered by the commissioners that a new committee be appointed, consisting of , to make an assessment on the lands so reported benefited by the conversion, and make report to this board at its adjourned session , 18 — . Thereupon the hoard adjourned to meet , 18 — . x See paragraph 42, above. 256 ROAD LAWS OF OHIO. [chap. 9, 57-63 57. Entry of filing new committee's report. The new committee, heretofore appointed, submitted their report of the assessment for the conversion of turnpike.* The hoard fix , 18 — , as the day on which exceptions to said assessment will be heard. 58. A new notice should be published similar to the one mentioned in paragraph 52. 59-61. Form of entry on hearing exceptions. '[Give caption.] , 18 — . This being the day advertised for the hearing on assessment of turnpike conversion, having filed an exception to said assessment' setting forth that a tract, etc. \_Here follows- statement.'] And the board being satisfied from the return of the committee, that the same was true, ordered that his assessment be reduced to $ ; after which the assessment was confirmed. And the president and clerk of this board are ordered to notify the officers of said turnpike company that a majority of the resident land-owners along and adjacent to the line of said road, whose lands and lots will be assessed for the purchase of the same, have petitioned this board for an assessment to pay for the same, that an assessment has been made and apportioned accordingly. [Here add. if so, the matter in paragraph 64, below.] 62. Form of notice, to turnpike officers, of filing petition for assess- ment, can be readily prepared from the concluding part of the mat- ter next above. 63. How put in proper condition and kept in repair. — After the purchase of any such road by the commissioners it immediately be- comes a free road, to be kept in repair as provided in chapter 10; but if the county commissioners are of opinion that such road is not in repair and condition equal to free turnpikes in its vicinity, they are authorized, at their discretion, to assess on the lands taxed for its purchase, an amount which will, in their judgment, put it in repair equal to the free turnpikes. Such assessment must be made upon the lands taxed for the conversion of the toll road into a free road, and in the same proportion, must be placed upon the same special duplicate, and collected at the same time and in the same manner as the taxes for the purchase of the toll road are collected ; and when collected, must be applied by the county commissioners in the repair of the road, and for no other purpose. 1 1 1 4872. CHAP. 9, 64-68.] CONVERTING TOLL ROADS. 257 64. Form of assessment for repairs. [Add to the preceding entry .] This board being of the opinion that said road is not in as good repair and condition as free turnpikes in its vicinity, hereby assess on the lands taxed for its purchase, an additional assessment for the repair of said road, of per cent of the assess- ment for its purchase, and order the auditor to place said assessment for repairs on the proper duplicate for collection, according to law. 65. Owners of certain roads may sell the same. — A person owning the right to take toll on any toll road, or the road of any incorpo- rated turnpike company, which right has been purchased under the provisions of the act of the general assembly passed February 8, 1826, entitled "an act for the regulation of turnpike companies," may sell such right to the county commissioners of the county in which the road or any part thereof is located, in conformity with the provisions of this chapter, so far as the same may be applicable. 1 66. To be a free road. — Immediately after the purchase of such right by the commissioners, the road becomes a free road, for the period over which such right extends. 2 67. Fees of officers and others. — The officers and other persons who perform service under this chapter must be allowed the same fees as they are allowed for like services in other cases, and may be paid out of the fund created by this chapter, or out of any funds in the county treasury, not otherwise appropriated. 3 Subdivision 2. Vacation of turnpikes and plank-roads out of repair, and their conversion into free improved roads by proceedings in probate COURT. 68. What roads may be declared abandoned, and when. — Any turnpike 1 g4874. On February 8, 1826, ''an act for the regulation of turnpike companies" was amended, not passed originally. Its sections Land II. con- tain much the same provisions as now contained in paragraphs 195 and 196 of chapter 11 of this volume. These sections I. and II. were next amended May 5, 1868, and again as found in Vol. 76 Ohio Laws, whence they were inserted into the Revised Statutes as §§ 3535 and 3536. 2 §4875. 3 § 4873. See paragraphs 101 of chapter 1, 269 of chapter 2, 77 of chap- ter 6, 158 of chapter 7. Also, notes on pp. 248, 590, 592. 17 258 ROAD LAWS OF OHIO. [chap. 8, 69-80 or plank-road in the state upon which toll has been or may be author- ized to be taken, which has been or may hereafter be out of repair for six months, may be deemed and held abandoned; and upon such abandonment being declared, as provided below, it will be un- lawful for any company or person owning or claiming to own such road, or any person owning or claiming to own the right to take tolls thereon, or any person in behalf of such company or person, to take, demand, or receive toll for the use of such road, or so much thereof as may be so declared abandoned. 1 69. Petition to have same declared abandoned. — Any twelve or more freeholders of a county in or through which any toll turnpike or plank-road, or any part of it, has been or may hereafter be con- structed, may present to the probate court of any county in which such road or part of it is situate, their petition, stating that such road or part of it has not been kept in repair for the preceding six months, and praying that it may be declared abandoned and va- cated as a toll road. The company or persons owning or claiming to own such road, and all persons owning or claiming to own the right to take toll thereon, must be made defendants. 2 70. It is apparent that these proceedings for abandonment are to be conducted as a civil action. 3 The petition, summon?, etc., should therefore conform to the requirements of such an action. 71-80. Form of petition. State of Ohio, county, Probate Court: A. B. [name eleven or more other freeholders of the' county], Plaintiffs. vs. The E. and S. Turnpike-road Company, a cor- [■ Petition, poration organized under the laws of Ohio [ami if any otfu r persons own or claim to own the right to take toll on said mad, make them, defend- ants]. Defendants. Plaintiffs represent that they are freeholders of said county; that defendants own, or claim to own, a certain turnpike-road situate [in part, if so] in said county, extending from to , and known as the turnpike-road, and also the right to collect tolls thereon [or if some of the defendants own the road, and others the right to collect its tolls, 1 2 4914. '§4915. 3 rfee paragrapb 69, above, and paragraph 82, below, especially. CHAP. 9, 81-86. J CONVERTING TOLL ROADS. 259 so state it'] ; that said road [or designate what part of it, if not alf] for the six months last past and longer, has not heen kept in repair. Plaintiffs therefore pray that said road [or part of it, as may be] may be declared abandoned and vacated as a toll road. W. P., Attorney for plaintiffs. State of Ohio, county, ss. A. B., being duly sworn, says that he is one of the plaintiffs in the foregoing petition, and that the facts stated therein are true [and. if so, that said A. M. and L. B., defendants, are non-residents of the state] as he verily believes. A. B. Sworn to and subscribed before me this day of , 18 — . A. C, Notary Public in and for said county. 81. A precipe for summons may be unnecessary in view of the pro- visions of the next paragraph, but it would be the safer practice to file one in form and time as in other civil actions. State the court and case as in the petition, then add : " Issue notice, in writ- ing, to the defendants. W. P., Attorney for plaintiffs." 82. Notice and hearing on petition. — On the filing of such petition the court must fix a time for its hearing, not less than thirty clays nor more than forty days thereafter, and issue a notice in writing to the defendants, stating the filing of such petition, and the day fixed for hearing thereof, and requiring the defendants to appear and answer. This notice must be served in the same way as a summons in civil cases. 1 83-8(5. Form of journal entry, as to filing petition, ordering notice, setting case, etc. A. B. [name all], plaintiffs. ) Petition filed, notice vs. > ordered, cases set, H. and S. Turnpike-road Co. [name all] defendants. J etc. This day came the plaintiffs, by , their attorney, and filed their petition, praying for the vacation of [state what, as in petition]. Said petition is set for hearing on the day of , 18 — , at — o'clock — m., and notice of the pendency, object, and prayer thereof, and of the time fixed for its hearing, is ordered to be given to said defendants, according to law. [Add, if so:] It appearing from affidavit filed with the petition, that the defendants A. M. and L. B. are non-residents of the state, it is ordered 260 ROAD LAWS OF OHIO. [chap. 9, 87-94 that said notice be given to them by publication, as prescribed by law. [See paragraph 88, below. ~\ 87. Form of notice to resident defendants. — This may be in the usual form of a summons, or substantially as in the next form below. 88. Publication against non-residents. — If any one of the defend- ants is a non-resident of the state, and this fact is made to appear by affidavit on the filing of the petition, the court must order notice to be given by the petitioners to such non-resident, by publication for three consecutive weeks, in some newspaper printed and of gen- eral circulation in the county, stating the time when such petition will be for hearing, and the object and prayer thereof, which publi- cation must be deemed sufficient service. 1 89. Form of notice to non-resident defendants. Legal Notice. — -A. M. and L. B., non-residents of this state, are hereby notified that on — — , 18 — , a petition, signed by A. B. [ami state how many other], freeholders of county, Ohio, was filed in the pro- bate court of said county, which petition states that [give in substance the statements of the petition'}. The object and prayer of said petition is that said turnpike-road [or state what part of it] may be declared by said court to be abandoned and vacated as a toll road. The hearing of said petition is set for , the day of , 18 — , at — o'clock — m. 90. Court must declare road vacated. — If, on the hearing of such petition, the court find that the road or part of it has been out of repair as specified in paragraph 68, the court must declare it aban- doned and vacated as a toll road. 2 91-94. Form of journal entry vacating or refusing to vacate road. [Give caption.] This cause came on this day to be heard, upon the pleadings [or, state what pleadings], evidence, and argument of counsel; and upon ex- amination, the court finds that all parties are in court by their plead- ings, in person or by attorney (except , defendant, who lias failed to appear or plead, but upon whom due notice of the pendency and prayer of the petition has been served according to law) *, and that said road [or state what part of it] has been, for six months next preced- !§4917. 2 H91G. CHAP. 9, 95-97.] CONVERTING TOLL ROADS. 261 ing the filing of the petition in this cause, out of repair, as charged in said petition It is therefore ordered and declared that said [or, said part of said] II. and S. turnpike-road be, and the same is ordered and declared abandoned ami vacated as a toll road; and it is further ordered that said defendants pay the costs herein taxed at 8 . [Or, proceed to the * then add:] but that said road lias not been out of repair as charged in the petition. It is therefore ordered that this proceeding be dismissed at plaintiff's costs, which are taxed at $ . 95. Abandoned toll road to become free road. — When a toll road, or part thereof, has been heretofore or shall be hereafter declared abandoned and vacated as aforesaid, it thereafter becomes a free road, to be kept in repair as provided as in chapter 10. 1 Subdivision 3. Appropriation of unfinished turnpike and plank-roads by county commissioners, and conversion of same into county roads. 96. Applies to ivhat roads; improvement of. — The county commis- sioners of any county through which any turnpike or plank-road, or part of it passes, are authorized to appropriate as county roads any part of such roads that may remain unfinished for live years; and they may proceed at any time after any such road has become a county road, under the provisions of this paragraph, to improve it under the provisions of any law, and will have the benefit of all work done on such road or parts thereof, by any company or cor- poration, without any compensation for the same ; but this puragraph can not be construed to authorize the appropriation of any part of such road already finished. 2 97. How appropriated. — It will be noticed that the law is entirely silent as to how the commissioners are to proceed in making such appropriation. The provisions of chapter 2 do not seem applicable, nor do the proceedings relating to appropriation of property by corporations. The spirit of this law probably is, that as to such roads it is a statute of limitations, and that the public, having been in possession of the road during the prescriptive period, may, through its agents, the county commissioners, so use and improve the road 1 1 4918, as amended, 80 O. L. 48. 2 1 4913. 262 ROAD LAWS OF OHIO. [chap. 9, 98-100 as will best subserve the interests of the public. Assuming this view to be correct, the commissioners may, of their own motion, or on petition of one or more persons interested in such matter, by personal inspection or otherwise, ascertain the extent and descrip- tion of this unfinished part, and enter, in the proper record, an order appropriating it; and let the turnpike compauy, or other per- sons, who may consider their rights invaded, commence proceedings in court, if there are to be any, to assert their rights. Such order may be as follows: 98-100. Form of order, appropriating turnpike-road. In the matter of the Appropriation of the } Q? .^ apropriating road . Turnpike-road. j It appearing to the satisfaction of the board that the [or describe what part of it] turnpike-road extending from to [etc., as may be necessary to describe it] has remained unfinished for the five years last past and longer, it is ordered that said road [or part] be and the same hereby is appropriated, and established a county road [order further as to its improvement, if desired now]. CHAP. 10, 1-3 ] REPAIK OF IMPROVED KOADS. 263 CHAPTER X. REPAIR OF IMPROVED ROADS. 1 Improved roads defined; repair of .—AW macadamized or grav- eled roads which are free roads, whether constructed under general or local laws by taxation or assessment, or both, or converted by purchase or otherwise from a toll road into a free road under any law, and all turnpike -roads, or parts thereof, unfinished or abandoned bv 'any turnpike company, and appropriated or accepted by the commissioners of the county, must be kept in repair as provided m this chapter. 1 2. For the purposes of such repair, the statutes separate the counties of the state into three classes, with different laws relating to each class. For the sake of greater clearness, the following por- tions of this chapter will therefore be separated into three subdivis- ions, corresponding to the classification of counties just mentioned. Subdivision 1. Counties in which each township is a road district for improved ROADS UNDER A PIKE SUPERINTENDENT ELECTED BY. THE PEOPLE. 3. In Clermont county.— Each township in the county of Cler- mont, for the purpose of keeping in repair so much of such roads as may be therein, is hereby constituted a road district, and placed under the care and supervision of a superintendent now in office, or hereafter elected, as herein provided. 2 1 § 4876. 2 § 4877, as amended, 81 O. L. 80. When the original of this section was first enacted (March 2, 1878, 75 O. L 26), it described by population the counties of Darke, Logan, and Shelby; when this section was adopted and passed as part of the Revised Statutes, it named these counties; when it was amended March 18, 1880 (77 O. L. 65), it named Shelby only; when it was amended February 21, 1883 (80 O. L. 24), 264 ROAD LAWS OF OHIO. [CHAP. 10, 4-13 4. Auditor to notify township clerks. — Unless a superintendent has heretofore been elected, the county auditor of each of said counties must notify the township clerks within his county that the election of a township pike superintendent is necessary. 1 5-8. Form of notice to clerk. Auditor's office, county, Ohio, , 18 — . To the township clerk of township, ■ county, Ohio : Sir : You are hereby notified that the election of a township pike superintendent for your township is necessary, in pursuance with the provisions of section 4878 of the Revised Statutes. You will notify the trustees of your township accordingly. Gr. B., County Auditor. 9. Clerk must notify trustees. — The township clerk, upon the receipt of such notice from the auditor, must immediately notify the town- ship trustees of such receipt of notice. 1 10-13. How notified. — The clerk may write on the back of the no- tice he has received, or below it, or on an annexed sheet, as fol- lows : To the township trustees of township : The within [or, foregoing, or, following, or, annexed] notice, that the election of a township pike superintendent is necessary, was received it named Adams, Shelby, and Clermont; when it was amended March 25, 1884 (81 O. L. 80), it named Clermont only. This section has not since then been amended nor changed directly. But section 4889 (paragraph 58, below) was also amended in 81 0. L. 80; and again in 81 O. L. 202; and it was then made to include Clermont county. Under the principle of construction, that when two laws of the same state are in conflict, the one last enacted governs, Clermont is not now in this subdivision, notwithstanding this section 4877; and consequently all the stat- utory provisions of this subdivision, *. e., $ 4877-4888, inclusive, though in force, are left without any territory to which they are applicable. As they are likely to be awakened from their trance-like condition by a further amendment of section 4877, naming other counties, these provisions are given here in their proper way and place. The counties of Darke, Logan, and Shelby, by being omitted from H 4877 and 4889, are placed in subdivision 3, below. 1 §4878. CHAP. 10, 14-24.] REPAIR OF IMPROVED ROADS. 265 by me on the — day of , 18 — . You are hereby notified accord- ingly. A. B., Township Clerk. 14. Order to elect pike superintendent. — The township trustees must, at their next annual meeting on the first Monday of March next after the receipt of such notice, order the election of one pike su- perintendent, at the annual spring election for township officers, to serve for one year ; and they must order such election annually thereafter. 1 15, 16. Form of entry in minutes. Notice having been received from the county auditor to elect a pike superintendent, in pursuance of section 4878 of the Revised Statutes of Ohio: Ordered, that such superintendent for this township be elected ac- cordingly, at each annual spring election for township officers, till fur- ther notice, to serve for one year. 17. Notice to electors. — In the warrant of election which the trus- tees must issue to some constable of the township, directing him to notify the electors to assemble and elect the officers enumerated in such warrant, a pike superintendent must be enumerated among the other officers. 2 18. Bond and oath of superintendent. — Each person so elected must, before entering upon the duties of his office, take an oath to faithfully discharge the duties thereof, and give bond to the state of Ohio, in the sum of two thousand dollars, with sureties as the trustee may require. This bond must be filed with the township clerk. 3 19-24. Form of bond. Know all men by these presents: That we, P. S., as principal, and S. F. and G. N., as sureties, are held and firmly bound unto the State of Ohio in the sum of two thousand dollars, to be paid to the said State of Ohio, for the payment whereol well and truly to be made, we i?4878. » §1445. 3 ? 4879. The bond and oath of all township officers who must give bond must be filed with the township clerk (except the clerk's). §§ 5, 1503, 1506, 1607. For this reason it is well to be sworn by the clerk. 266 ROAD LAWS OF OHIO. [CHAP. 10, 25-31 jointly and severally bind ourselves, our heirs, executors, and adminis- trators firmly by these presents. Signed by us this day of , a. d. eighteen hundred and The condition of the above obligation is such that, whereas, the said P. S. has been duly elected and qualified as pike superintendent of township, county, and State of Ohio, for the term of one year from the day of April, a. d. 18 — , and until his successor is elected, or appointed, and qualified. Now, if the said P. S. shall faithfully discharge his duties as said officer, then this obligation will be void; otherwise it will remain in full force and effect, 1 " P. S., S. F., G. N. The sureties on the above bond approved by us: [Signed by township trustees ] 25-29. Form of oath. The State of Ohio, county, ss Before me, A. O, clerk of said township [or other proper officer], per- sonally came , who, being duly sworn according to law, says that he will support the constitution of the United States and the constitu- tion of the State of Ohio; snd that he will faithfully discharge his duties as pike superintendent of township, county, Ohio, during his continuance in said office, and until his successor is chosen and qualified. P- S. Sworn to before me and signed in my presence, on this day of , a. i). 18 — . A. C, Township Clerk. 30. Labor and taxes to be set off; use of road tools. — The township trustees must provide for keeping in repair such improved roads witliiu their respective townships. For that purpose they must set off persons who must perform their two days' labor as required by law, and also labor in commutation of taxes, to be worked out under direction of the pike superintendent, who is authorized to give re- ceipts for such work and commutation of taxes as other road super- visors. Such receipt must be received at the treasurerer's office for taxes on the lands on which the tax was levied ; and the trustees must give the pike superintendent the use of any plows, scrapers, or other implements owned by the township for road purposes. 2 31. The township clerk should notify the road supervisors and pike superintendent as to what persons and labor were set off to the superintendent. These road officers can no doubt agree as to when 1 See note 2, page. 2 1 4881. CHAP. 10, 32-3-1.] REPAIR OF IMPROVED ROADS. 267 each shall use these plows, etc.; but should they be unable so to do, the township trustees should decide when each shall have them. 32. Where and when work must be done. — The labor provided for in paragraph 30, together with the repairs otherwise provided for, must all be applied upon the roads by the first of September of each year; but the superintendent, at all seasons of the year, must see that the culverts and bridges are kept in repair, in case of damage to the road by flood or otherwise. 1 33. Superintendent's powers and duties. — As soon as the pike su- perintendent shall have qualified himself by giving bond and taking the oath prescribed in paragraphs 18, 29, he will have full control of all such improved roads within his township, and must keep them in good repair and condition for all kinds of public travel. For this purpose he has all the powers and privileges of road super- visors, for drainage, and for the removal of timber, logs, cord-wood, or other obstructions found within the limits of the road from time to time. He may, subject to the will of the commissioners, contract for all material necessary for repairs, and in case of freshets or floods, giving rise to breaks in the road-bed, or washing off large quantities of gravel, he may contract for repairs, either by day or job work, and must certify the same, with the amount due under each contract, to the county auditor, who, upon the order of county commissioners, must issue an order on the county treasurer for the amount so certified, or so much thereof as may be allowed by them, in favor of the party to whom such certificate was issued. 2 34. Forms of contract. — Such contracts may, under the varying circumstances which call for them, vary from a verbal agreement about small matters, such as to haul a single load, or a few loads of gravel, at so much per load, or per day, to contracts which Avould call for specifications of considerable length. For forms which can be adapted to this case, see chapters 8 and 12. Contracts calling for considerable expenditure of money ought perhaps always to be approved by the county commissioners, and should always be in writing. 1 2 4888, as corrected 77 O. L. 56. 2 § 4880. As to powers, etc., of supervisors, see chapter 5. See note to paragraph 7, chapter 21. 268 ROAD LAWS OF OHIO. [CHAP. 10, 35-41 35-38. Form of certificate. To the auditor of county, Ohio : I certify that, on , 18 — , I entered into a contract with , to [state fully if a verbal contract ; if a written one, briefly what, and add : as will more fully appear from the copy of said contract, hereto annexed], and that there is now due to said , for [state what, e. g.~\ twenty-five loads of gravel hauled, according to said contract, dollars. [Or say, if so :] I certify that there is due to , for [state what] done in accordance with the contract, a copy of which was certified to you on the day of , 18—, the sum of dollars. P. S., Pike Superintendent of township. 39. Same as to bridge repairs, etc. — The superintendent must keep in repair all culverts necessary for the travel and convenience of such roads ; his authority extends to repairing bridges and culverts, in all cases where the expenditure of money will not exceed fifty- dollars ; he has power to contract for the necessary material and labor therefor, and to certify the same to the commissioners, as provided for in paragraph 33. 40. Bridge repairs, how paid. — All contracts for labor and ma- terial so employed in the repair of culverts and bridges must be paid for out of the road fund of the county. 1 41. General tax for repairs. — If the tax and labor provided for in paragraph 30 be found insufficient to keep such roads in good re- pair, the county commissioners must determine and levy such addi- tional pike repair tax as may be found necessary to keep the same in good repair and condition for public travel, upon all the taxable property of the county, not exceeding one mill on the dollar in any year. This tax must be collected as other taxes, and paid by the county treasurer to the various pike superintendents in such sums and proportions as the commissioners may direct, they having first determined what proportion of the fund must be set apart to the credit of each township ; and the commissioners, in determining the division of the fund, must be governed not by the miles of pike in each township, but by the necessities of the roads, the convenience of getting material, the quality of material necessary to make sub- stantial repairs, etc., and must make a just and equitable division of 4 4887, as amended, 81 .0. L. 27. CHAP. 10, 42-53.] REPAIR OF IMPROVED ROADS. 269 the fund between the several townships, to be paid the superintend- ents on warrants of the auditor. 1 42. Semi-annual reports of pike superintendents.— -Each pike super- intendent must, at the regular meeting of the county commissioners in March and September of each year, render an account to them of all the money drawn by him from the county treasury, how ex- pended, to whom paid, and for what purpose so paid, together with a detailed statement of his official transactions, including the num- ber of miles of improved roads in the township, the number of miles in each road, the aggregate expense incurred in repairs, the expense of each road, the number and names of persons having performed their two days' labor under his direction, the names and number of persons who received certificates of having performed labor in com- mutation of road tax, the amount of each certificate, on what road such labor was performed, and the convenience of getting material for repairs, as well as the condition of each road on settlement day. This report must be sworn to by the superintendent." 43. Form of account. — This account may be in the form of a let- ter, stating each of the items enumerated above in a paragraph of its own, one paragraph under another, in the order mentioned above. But, especially if there are many such roads in a township, such accounts are more convenient and more easily examined, as well as more compact and more suitable for filing, if their items arc ar- ranged in columns, each with its proper heading. In this case, the columns would be too numerous to follow one another from left to right on a sheet of convenient size. The items may therefore be arranged as first mentioned, or in different sets of columus on differ- ent sheets, as shown on next page. 44-53. To the board of county commissioners of county, Ohio : I thereby render my account to your honorable body at its — — meeting of 18—, concerning the improved roads in township, in said county, as required by law, as follows: (First sheet.) Account of Moneys Received. When. 10, 18— 12, 18— 18— 18- 18- Peom Whom. Balance on hand at last report (if so) Counts' Treasurer A. M H. S County Treasurer [etc.] On Account of What. County Road Fund Commutation road labor (see par. ;10) do County Road Fund [etc.] Total Receipts. Amount. \etc.] $231 cts. [etc.] 75 x § 4884, as corrected, 77 O. L. 66. ! §4885. 270 ROAD LAWS OF OHIO. [CHAP. 10, 44-53 (First sheet, continued, or second sheet.) Account of Moneys Expended. When. How Expended, for what Materi- als, Labor, etc. And for what Purpose. To whom paid. Amount so Paid. J CtS. 21, 18— 46 cu. yds. gravel. Repair of rond. L. M. 18— 5 days labor. Repair of culvert. J. R. 18— 5 days labor. Repair of road. J. F. [etc.] [etc.] [etc.] [etc.] [etc.] [etc.] Total expended. . . Balance on hand. . 211 20 50 25 (Second sheet.) Names of the Im- proved Roads in the Township. Condition of Road. No. of Mh.es in. Expense of. $ cts. X. and Y. Road. In good repair. [etc.] [etc.] [etc. | \etc.] Totals: Miles and expenses. $ (Third sheet — and fourth, and fifth, etc., if third will not contain all the names.] Names of Persons who Per- formed their Two Days' Labor. No. of Persons. Names of Persons who Received Certificates for Labor in Commu- tation of Road Tax. No. of Persons. Amount of Cer- tificate. $ cts. A. B., 1 A. B., 1 o 31 CD., 2 3 E. F.. o 40 E. P., G. H. 3 19 50 (Date.) Respectfully submitted, P. S., Pike Superintendent. State of Ohio, county, ss: P. S. being duly sworn, says that the foregoing account is true in every respect as he verily believes. P. S. Sworn to and subscribed before me, this day of , 18 — . W. C., Notary Public [or other offi.cer\. CHAP. 10, 55-58.] REPAIR OF IMPROVED ROADS. 271 54. Vacancies, how filled.— Should a vacancy occur in the office of pike superintendent, by death, resignation, or otherwise, the trus- tees of the township must appoint some suitable person to fill the vacancy, and the person so appointed must, before entering upon the duties of his office, qualify himself, and must be under the same restrictions and penalties as though he had been duly elected. 1 55. Penalties against superintendents. — Any such pike.superintend- ent who neglects or refuses to perform the duties enjoined on him in this chapter, or who, under any pretense whatever, gives or signs any receipt or certificate for labor or work performed, money paid, or material furnished, when the labor has not been performed, money paid, or material furnished, before the giving or signing of such re- ceipt or certificate, is liable to forfeit for every such offense not less than five nor more than fifty dollars, to be recovered by an action before a justice of the peace within the township where such super- intendent resides. 2 See also paragraph 11 of chapter 17. 56. Trustees must prosecute. — The township trustees must prosecute all offenses against the provisions of the precediug paragraph. 3 57. Compensation of superintendents. — Each pike superintendent is entitled to receive for his services under the preceding paragraphs, one dollar and seventy-five cents per day, for the time actually em- ployed in the care of such roads, and no more, which must be paid out of the funds thereby created. 4 Subdivision 2. Counties in which each township is a road district for improved road repairs, under the charge op the township trustees. 58. Each township in the counties of Belmont, Butler, Carroll, Champaign, Clinton, Columbiana, Cuyahoga, Darke, Delaware, Erie, Fayette, Franklin, Geauga, Greene, Hamilton, Henry, Hu- ron, Licking, Lucas, Madison, Miami, Montgomery, Muskingum, Ottawa, Pickaway, Pike, Preble, Ross, Shelby, Stark, Summit, Trumbull, Tuscarawas, Vinton, Washington, Warren, and Wayne,' in which any such free road is located, is made a road district for the care and maintenance thereof. 5 i §§ 4882, 1451. Such an officer qualifies himself by giving the bond and taking the oath required in pars. 18-29. As to penalties, see par. 55. *§4883. 3 § 4883. 4 § 4886. 5 § 4889, as amended, 82 O. L. 49. This section has been amended, chang- 27 2 ROAD LAWS OF OHIO. [CHAP. 10, 59-68 59. Auditor to give notice to township clerk. — Unless such notice has heretofore been given, the auditor of each of said couuties must immediately give notice to the clerk of each township in which any such road is located, that the trustees are required to take the charge and control thereof; and the auditor must give the like no- tice upon the acceptance or appropriation of any other macadam- ized or graveled road by the county commissioners. 1 60. The form of notice may readily be adapted from paragraphs 5-8, above. 61. Notice to township trustees. — The township clerk, on receipt of such notice from the auditor, must immediately notify the township trustees of su'jih fact. 2 62. Form of notice. — Adapt the form in paragraphs 10-13, above. 63. Powers of trustees, after such notice. — The township trustees will, upon receipt of the notice, have full charge and control of all such roads within their townships. The trustees must divide such road, or roads, into sections of not less than one-half mile each, and keep them in repair and in good condition for all kinds of public travel; and for that purpose they are invested with all necessary powers as to drainage, the purchase of stone, gravel, or other ma- terial, or if necessary, the condemnation of such material for the repair of the roads within their townships, as are, or may be con- ferred by law upon county commissioners. 2 See paragraphs 96— 114, below. 64-67. Form of order dividing road into divisions. Ordered, that the improved roads in this township be divided into sections as follows: The X. and Y. road shall be in [say how many"] sections, the first sec- tion thereof to begin at , and end at ; the second section thereof to begin at , and to end at [«te.]. The V and W. road shall be in [etc., as above]. 68. Trustees may assign roads to supervisors. — The trustees may, at their regular March session, each year, apportion and assign to the several supervisors of roads in their townships, or to other suitable ing the counties mentioned in it, at least once each year, since the adoption of the Revised Statutes. 1 § 4890. 2 \ 4891, as amended, 82 O. L. 42. CHAP. 10, 69-72.] REPAIR OF IMPROVED ROADS. 273 persons, such road or roads, or any part or parts thereof, in the road districts of such supervisors respectively, to be by such supervisors or by such other suitable persons kept in repair, as required in paragraph 63, and under the control and supervision of the trustees. 1 69. Trustees' annual report to commissioners. --The trustees must send to the county commissioners, before their regular quarterly meeting on the first Monday of June of each year, a statement showing the number of miles of free gravel roads in their township, the amount of levy made for road purposes, and the pro rata of the levy set apart for keeping such roads in repair and expended on them, and the conditions these roads are in for public travel. 2 70-71. Form of report. Office of township trustees of township, county Ohio ) ,18—. '} To the board of county commissioners of county, Ohio : We hereby report to your honorable body, concerning the free turn- pike or gravel roads in said township of , as required by law, as follows : No. of miles of such roads in said township, . . miles Amount of levy made for road purposes in said township, mills. Pro rata of said levy set apart for keeping said free turn- pikes in repair, and expended on them, . . Said roads are in [state their condition for public travel; if necessary, spec- ify how each road is, or otherwise give details'}. [Signed by the township trustees.'] 72. Labor and taxes to be set off.— The trustees must provide means for keeping in repair all such roads within their township, and for that purpose must set off persons and districts. Such persons must perform their two days' labor as required by law, and also labor in commutation of taxes, to be worked out under the direction of such supervisors or such other suitable persons, as provided in paragraphs 63 and 68 ; and under the control and supervision of the trustees; and such supervisors or other suitable persons are authorized to give receipts therefor. Such trustees must set off, from the common road fund of their township, such amount as may seem equitable to 1 § 4892, as amended, 81 O. L. 127. 2 1 4893. 18 274 ROAD LAWS OF OHIO. [chap. 10, 73-74 them, to be an improved road fund, especially applicable to the care and improvement of such roads, and may also allow the use of any plows, scrapers, or other implements owned by the township for road purposes. 1 73. County commissioners may levy additional road tax, when. — If the tax levied by the township trustees and the road-labor where applied to such improved roads are found by the county commis- sioners to be insufficient to keep such roads in good repair, they may determine and levy an additional per centum of extra road tax, to be levied upon the taxable property of the county, not ex- ceeding two mills on the dollar in any year. Such tax must be collected as other taxes, and when collected, must be paid by the county treasurer to the township treasurers, 'upon the order of the county commissioners, in such proportion as they may determine to be just and equitable between the several townships in which the roads are located, and must be expended upon such improved roads in accordance with the foregoing provisions ; or the county commis- sioners must, in any townships within their respective counties, in which such roads are not kept in good repair as heretofore provided, levy an additional tax to that levied by the township trustees, on all the taxable property of the township, on the basis of the number of miles of improved road or roads, within the township, sufficient to keep them in good repair. Such taxes must be collected as other taxes are, and paid over to the treasurer of the township on which such levy is made, and must be expended by the trustees thereof on the improved roads within their township, so as to keep these roads in good repair. 2 Subdivision 3. Counties in which the county commissioners have the manage- ment AND CONTROL OF SUCH ROADS. 74. County commissioners as a board of directors, control. — In every county not mentioned in paragraphs 3 nor 58, the county commis- sioners are by law constituted a board of turnpike directors, in which the management and control of all such roads in such coun- ties is exclusively vested. 3 1 §4894, as amended, 81 O. L. 127. Compare with paragraphs 30, 31, above. 2 § 4895, as amended, 80 O. L. 89. »§ 4896. CHAP. 10, 75-86.] REPAIR OF IMPROVED ROADS. 275 75. Division of county into districts, etc.— The directors, at their first meetiDg, must divide the county into three districts, as nearly equal in number of miles of turnpike, and conveniently located, as may be practicable. Each director will have the personal supervis- ion of one of such districts, subject to all rules and regulations that may from time to time be agreed upon by the board. The direct- ors must hold a meeting as such board at least once in three months, al their office at the county seat, and must be governed in all trans- actions by the rules governing county commissioners. 1 76-79. Form of order dividing county, etc. The county commissioners of county, having met as a board of turnpike directors for the first time, order that said county be divided into three improved road districts, as follows: The first of said districts shall be under the personal supervision of A. C, of said board, and shall be bounded as follows : [state its boundaries']. The second of said districts shall be under the personal supervision of B. C, of said board, and shall be bounded as follows: [bound it], and The third of said districts [etc., as above.] 80. May appoint superintendents; bond of. — They may appoint suit- able persons to superintend the work of repairs on the several roads, who must be required to give bond and security to the satisfaction of the commissioners for the faithful performance of their duties, and take and subscribe an oath also, which must be indorsed on the back of the bond ; and it must be filed in the auditor's office of the county. 2 81. Assigning territory to superintendents, and form of appointment. By an order similar to the preceding form, divide the county into divisions of such size as may be deemed best, and similarly appoint these, superintendents, if ready to do so ; if not, appoint them at a subsequent meeting, by a properly modified order. 82-86. Form of bond. Know all men by these presents: That we, L. A., as principal, and M. O. and P. H., as sureties, are held and firmly bound unto the county of , in the State of Ohio, in the sum of dollars, for the i§4897. 2 § 4898, as amended, 81 O. L. 196. 276 ROAD LAWS OF OHIO. [chap. 10, 87-93 payment whereof we jointly and severally bind ourselves firmly by these presents. Signed by us at , this day of , a. d. 18 — . The condition of the above obligation is such that, whereas, the said L. A. has been duly appointed and qualified to superintend the work of repairs on the free turnpikes in division No. of said county, under the supervision of the turnpike directors thereof, according to law. Now, if the said L. A. shall faithfully discharge his duties as said officer, then this obligation will be void. 1 L. A., N. O. P. R. The sureties on the above bond approved by us: [Signed by the county commissioners.'] 87-91. Form of oath. State of Ohio, county, ss. Before me, N. P., a within and for said county, personally came L. A., who, being duly sworn according to law, says that he will sup- port the constitution of the United States and the constitution of the State of Ohio; and that he will faithfully discharge his duties as a pike superintendent as within described, during his continuance in said office. L. A. Sworn to before me and signed in my presence, on this day of , a. D. 18 — . N. P., Notary Public [or other officer]. 92. Duties of county auditor. — The auditor of the county must serve as clerk of the board, aud must record the proceedings of the board in a book to be provided for such purpose by the county com- missioners, which must be open for examination to all persons in- terested. 2 93. Notice of rules, meetings; statements of receipts, etc. — The county commissioners must cause notice to be published in at least one newspaper of general circulation in the county, of such rules as may be adopted for the regulations of labor and travel on such roads, notice of the regular meetings of the board, and on or before the third Monday in the month of September in each year must make a detailed statement of receipts and expenses to the court of common pleas, and it must be examined and published as provided in section nine hundred and seventeen of the Revised Statutes of Ohio. 2 x See note 2, pa^c 2. 2 g 4898, as amended, 81 O. L. 196. Section 917 is as follows: Sec. 917. The county commissioners, annually, on or before the third CHAP. 10, 94, 95.] REPAIR OF IMPROVED ROADS. 277 94, !)"). Form of notice. TURNPIKE DIRECTORS' NOTICE. The county commissioners of county, Ohio, acting as a board of turnpike directors, hereby give notice that the regular meetings of said board of directors will be held on [state when], and that said board has Monday in September, shall make a detailed report in writing to the court of common pleas of the county, of their financial transactions during the year next preceding the time of making such report, and the court "shall cause the same to be investigated and examined by the prosecuting attorney of the county, together with two suitable persons to be appointed by the court; and the two persons so appointed shall each be allowed, and paid out of the county treasury, on the warrant of the county auditor, the sum of three dollars per day, for the time they are necessarily employed in making said investigation; to aid in their investigation, the person so appointed^ with the prosecuting attorney, to examine said report, shall have power when, in their opinion, it is necessary, or the court shall so order, to subpoena witnesses to appear before them at such time and place as is designated: upon the filing of a precipe with the clerk of the court of common pleas, he shall issue a subpoena, directed to the sheriff of the county, who shall serve the same and make return according to law: such witnesses may be sworn before any officer authorized to administer oaths, and shall thereupon be compelled to answer such questions as are put to them relative to the official transactions of the county commissioners: the clerk of the court shall cer- tify all costs arising under these proceedings to the auditor of the county, who shall draw warrants upon the county treasurer for the payment of the same, and said examiners, when they have completed their examination, shall leave said financial statement, and the report of their examination' with the auditor of the county, for the use of the commissioners, who shall,' immediately thereafter, cause said statement, together with the report of the examiners, to be published in a compact form for one week, in two weekly newspapers of different political parties, printed in the county, if there are two such papers there published; if not, then a publication in one paper only is required: in case of any violation of the law, the prosecuting attor- ney is directed to cause the same to be prosecuted according to the nature of the case; and if any county commissioners in this state fail or neglect to make the report required of them by this chapter, at the time therein re- quired, they shall be fined in any sum not exceeding one hundred dollars- and the prosecuting attorney of any such county shall prosecute in the court of common pleas, as is provided by law in similar cases, any one or all of such commissioners who neglect or refuse to publish the required statement as herein provided. 278 ROAD LAWS OF OHIO. [chap. 10, 94, 95 adopted the following rules for the regulation and travel on all free turnpike-roads in said county. {Give the rules. 1 '} '[Signed by said directors.'] Attest: W. C, Clerk of Board and County Auditor. 1 These rules may be as follows, or modified within the law, as desired: Rules governing turnpike directors and superintendents, and reg- ulating TRAVEL UPON FRK.E PIKES IN COUNTY, ADOPTED BY THE COUNTY COMMISSIONERS, ACTING AS A BOARD OF TURNPIKE DIRECTORS 7 ON , 18—. First — The board of turnpike directors of county, Ohio, will hold regular sessions at the auditor's office in , on the of each of the fol- lowing month,?, viz : , , , and , and in special meetings when deemed necessary, upon the call of the president of the board. At such meetings the board will allow the payment of bills, ratify con- tracts, etc., and attend to the transaction of all business which belongs to their consideration as a board having charge of the free pikes in the county and relating to the repairs of such pikes; both as to graveling and the keep- ing up of the bridges and culverts thereon. Second — Each director may appoint such persons as he may select and deem proper and necessary to superintend the work of repairs upon the re- spective pikes in his division, subject to confirmation by the board; and such superintendents shall each be required to enter into bond in double the amount of money likely to come into his hands during the year, with surety to the acceptance of the directors, conditioned for the thorough and faithful performance of his duties and the proper disbursement of all funds placed in his custody, and a correct accountability of such funds to the directors. Each superintendent shall be subject to the direction and control of the director in charge of such division, in all matters pertaining to his duties, whether mentioned specifically in these rules or not, and shall be liable to dismissal at any time, within the discretion of the director. Tin iiD — Superintendents shall have power to employ laborers and teams; and the wages for the coming year shall not exceed the following rates, to wit: Teams, per day $3 00 Shovelers, per day 1 50 Superintendent's service, per day 2 00 Fourth — Superintendents will be required to keep an accurate detailed account of all work done under their direction, giving the name of each pike, where and time when labor was performed, name of person perform- ing the 6ame, the kind of labor and price per day; and he will also keep a separate account of the number of loads of gravel hauled and from whose 279 CHAP. 10, 96-98. J REPAIR OF IMPROVED ROADS. 96 May contract for labor and material.-The directors may con- tract for labor and material, either at public sale or private contract, as will best subserve the interests of the different roads. 97 If competitive bids are desired, probably the most practicable way of obtaining them is to advertise, in the usual form, for propo- sals to furnish material, designating what, as gravel, stone, etc., and, if possible, approximately at least what quantities will be wanted, and also designating the quality, as per specifications or .ample, if possible. The bidder may also be required to state where the gravel-bed, etc., from which the material proposed to be fur- nished will be taken, so that the directors can go and examine its quality, etc., if desired. 2 . 98 May take and pay for road material, how. —\\ hen in the opin- ion of the board the interests of any of the roads require it, they may enter upon any lands in the county, and take the gravel or other material necessary for the repair of the roads, and must give a certificate to the owner of such material so taken, which must pit taken, and also a separate account of his own time when serving as such superintendent. FiFTH-Superintendents will see that all obstructions to travel are kept off the bounds of all roads under their control. They must give due notice to persons violating these rules, or in any manner obstructing or injuring the roads, that thev must desist. They must see that stock is not permitted to run at large-except under such protection that no injury will accrue to the roads under their charge-and in all other matters must exercise such care and vigilance as will serve to keep the roads in good repair and creditable appearance. . , SixTH-TJnder the laws relating to regulation of burdens upon improved roads, the following restrictions are imposed: Transporting heavy burdens upon the pikes in the county is prohibited during the late fall, winter and early spring, upon wagons having tires of two inches or less, excepting when roads are dry or solidly frozen. Burdens of 2,500 pounds upon such wagons when the roads are in a soft condition, are as much as will be allowed; and burdens upon wagons with tiros up to a width of 3J inches, not more than 3 500 pounds will be allowed. Loads exceeding 3,500 pounds must be trans- ported upon wagons having tires at least four inches in width ; but no load must exceed 4,500 pounds upon any wagon at any time. By order of the board, W. C, Auditor and Clerk of Board. i § 4899. 2 For form adaptable, see pars. 56-63 of chapter 12. 280 ROAD LAWS OF OHIO. [chap. 10, 49-104 state the value thereof, together with the amount of damage to the lands by reason of the removal of such material. 1 See also para- graph 97, chapter 5. ^9-101. Form of certificate. We hereby certify that we entered upon the lands of L. O., in county, Ohio, and took therefrom road material, at the times, of the quantities, and valued by us, as follows : Apr. 10, 18 — . 25 cubic yards [or, loads] at 10 cents per cubic yard $ 2 50 " 11, " 30 cubic yards [or loads] at 10 cents per cubic yard 3 00 May 1, " 50 perch of limestone, at 25 cents per perch... 12 50 [Etc.'] [etc.] [etc.] Total valuation 210 00 Amount of damage done to lands by reason of such taking.... 20 00 Total amount allowed $230 00 We direct the auditor of said county to issue an order on the county treasurer in favor of said L. O. for said $230.00. D a t e cl , 18 — . [Signed by the directors.] 102. Payment of. — The county auditor, upon the presentation of such certificate, must issue an order on the county treasurer for the amount so certified, who must pay the same out of the turnpike fund. 1 103. Appeal from assessment of damages. — If an owner be dissatis- fied with the value so certified by the board, he may appeal to tin- probate court of the county,' subject to all the provisions of the statutes relating to the appropriation of material for road purposes ; but notice of such appeal must be filed with the probate judge of the county within ten days after the delivery of the certificate. 2 104. The preceding paragraph is extremely indefinite and per- plexing. Appeals are provided for under various other provisions of the statutes relating to the appropriation of material for road purposes, but in each case the procedure as to such appeals diners in some respects from every other case. Which one must he follow- ed ? In all of these, however, there must be, or may he, an award by appraisers made before the material can be taken or used, and ^4899. 234900. CHAP. 10, 105-111.] REPAIR OP IMPROVED ROADS. 281 the appeal is generally from the order of court confirming their award, hut in this case, the material is first taken and used, 1 then a certificate issues to the owner, values having heen decided and the certificate issued without any action or knowledge of or proceedings in any court. To appoint appraisers to view and decide upon the value of, say, trees that have been cut down and converted into lumber used in or about bridges or culverts, or under their abutments, where it can not be seen, gravel or stone hauled away and mingled with other material, which they can not see, and concerning which they have no power to take testimony, seems to be useless ; and the law is not supposed to do a vain thing. 105. It seems, then, that in this case, the certificate of the direc- tors takes the place of an award by other appraisers, and that if this award is to be reviewed, it must be in a court that can compel the attendance of witnesses, and before a jury who must weigh the evidence presented and decide the matter in dispute. 106-111. Form of notice. If the foregoing views are correct, and as some course has to be adopted to get the matter into court, 2 and by the court afterward, the notice mentioned in paragraph 98, above, may be in form as follows : State of Ohio, county, ss. In the probate court. L. 0., plaintiff, -\ vs. ! Notice of appeal, [Name them'] as the board of turnpike directors T etc. of said county, defendants. J The undersigned represents that he is the owner of a certain tract of land situate within said county, and that on the day of , 18 — , he received from , , , the turnpike directors of said county, a certificate, which is in words and figures as follows: [copy it, or say, a true copy of which is annexed hereto, and annex such copy]. He further represents that on or about the [state the time] said direct- ors entered upon his said land and took therefrom, without his consent, the material described in said certificate [or if more or different is claimed, state what material] and that he is dissatisfied with the value so certified x See paragraphs 72-78, chapter 27. 2 See note 3 to paragraph 74 of chapter 4, and that paragraph. 282 ROAD LAWS OF OHIO. [CHAP. 10, 112-115 by said directors therefor, and gives notice of appeal from the value so allowed and award made by said directors, and asks the court to de- termine the amount and character of appeal bond, if any, which will be required of him in said appeal, and the time for hearing said matter. [Signed.] 112. Affidavit to this may be required as to a petition in a suit, at the court's discretion. 113. An entry may be made accordingly, and the case may be proceeded with as provided in subdivision 3 of chapter 4, as far as applicable. 114. Must certify how much money needed. — The directors must cer- tify to the county auditor, on or before the first Monday in June each year, the amount of money necessary for the purpose of keep- ing such roads, including the bridges and culverts thereon, in good repair. 1 115. General levy for repairs excludes other levy. — Upon the issue of such certificate to the county auditor, he must levy upon all the taxable property of the county such sum, not to exceed three-twen- tieths of one mill for every ten miles of turnpike completed in the county, the receipts of which levy are to constitute a turnpike fund in the county treasury, to be paid out only upon the order of the county auditor, issued upon the certificate of the board of turn- pike directors, properly attested by the clerk of the board. But in all counties where such a levy is made, the county commissioners must make no further levy for general road purposes. 2 i§4899. 2 H901. FORMS. The board of turnpike directors met this day in quarterly session ; pres- ent ) , , and the auditor as clerk. The minutes of the meet- ing were read and approved. On motion of M. L. the levy for turnpike repair fund for the duplicate of 18— is fixed at one mill on the dollar of all the taxable property in the county; and the auditor is directed to place said levy upon the duplicate accordingly. Upon which motion each director present voted aye as his name was called. Opon motion the board adjourned. Attest : Approved : C. B., Clerk. M - C-> President. CHAP. 10, 116-119.] REPAIR OF IMPROVED ROADS. 283 116 But township trustees may levy.— In such case, the township trustees iu such counties may make such levy for common road pur- poses in their several townships as they may deem proper, not to exceed in amount the combined levy that would have been author- ized by county commissioners and township trustees in case no levy had been made under the provisions of this and the preceding para- ' 117. Trustees mud apportion road hbor.-Jn townships in which such roads are located, and placed under the control of turnpike directors under the provisions of this chapter, the township trustees must, at their annual meeting in March, designate and set off such portion of the two days' labor as they may deem just and equitable, to be performed under the control of the board of directors or their superintendents, subject to all the rules and regulations of law for its performance under the direction of road supervisors. 2 118. Compensation of directors and others.- -The compensation for services as such director is the same in all respects as county com- missioners, and the compensation for the services of superintendents and clerk of the board is subject to the agreement of the board, but can not exceed two dollars and fifty cents per day for time actually employed, and to be paid out of the turnpike fund. 3 119^ Penalties for violation of rules.— Any person who violates, either by himself or agent, any of the rules or regulations adopted by the board and recorded in their book of records, must, upon con- viction thereof before any j ustice of the peace of the county, or any court having competent jurisdiction, be fined in any sum not less than ten dollars for each offense ; and all such fines must be paid into the county tre asury for the use of the turnpike fund. 4 1 g 4901. 2 1 4902. See chapter 5. 3 §4903. u *§ 4905. This section has been rendered superfluous and incongruous by the amendment of §490*, which, as originally incorporated into the Revised Statutes, reads as follows: « See 4904. The board of turnpike directors shall adopt regulations as to burdens which may be transported over such roads, and prescribe the width of tire on vehicles used by persons engaged in the business of transporting heavy loads over the same, and cause the same to be recorded; but such width of tire shall not be required to exceed five and one-half inches ; and the county commissioners of every other county shall constitute a board of 284 ROAD LAWS OF OHIO. [chap. 10, 120-122. 120. Parts of roads in cities and villages must be repaired. — The com- missioners must keep in repair such portions of such roads within their respective counties as have since their completion been in- cluded, or may hereafter be included, within the corporate limits of any city or village in such counties, to points therein where the side- walks have been curbed and guttered, and no further. 1 121. Certain funds apportioned. — In each county where the com- missioners have been, by virtue of their office, constituted a board of directors for keeping in repair the turnpike-roads therein, and who are not now by law such board, and who will not by the pas- sage of this chapter be made such board, and wherein there is an accummulated fund in the hands of the treasurer thereof for the pur- pose of keeping in repair such roads, the commissioners must appor- tion such fund to the different townships within their county, accord- ing to the number of miles of turnpike-roads therein contained ; and they must direct the county auditor to draw warrants on the county treasurer, payable to the treasurers of the respective townships, for the amount so apportioned, to be used in keeping in repair the turnpikes therein contained, in accordance with law, and for no other purpose. 2 Subdivision 4. General provisions. 122. Weight of load on free turnpikes, rides, prosecidions, etc., as to. The law forbids any person or persons, firm or corporation, either by themselves or agents, in any county having such roads as speci- di rectors within the meaning of this section, with power to regulate bur- dens that may he transported over such roads in their respective counties, and fix the width of tire, not exceeding five and one-half inches, of vehicles used in transporting heavy loads over the same ; and upon the complaint of any resident freeholder of such county, if, in the opinion of the board, the provisions of this section have been violated, the board shall prosecute, be- fore any justice of the peace, or court having competent jurisdiction, any person who violates the same, in an action in the name of the state, for the use of the county." But as amended, it is made applicable to all subdivisions of this chapter; and is therefore given in subdivision 4, as paragraphs 122-l'_'-3. It now con- tains its own provisions as to prosecutions, penalties, etc. ig 1906. 3 ?4907. CHAP. 10, 123-125.] REPAIR OF IMPROVED ROADS. 285 fied in paragraph 1 of this chapter, to transport, between Novem- ber 15th aii'l May 15th of each year, over such roads, in any vehicle having a tire less than four inches wide, a burden of more than twenty-five hundred pounds; but whenever said roads are suffi- ciently dry or frozen to bear up burdens of greater weight, then this restriction does not apply. 1 123. The county commissioners of every such county constitute a board of directors for their respective counties, with power to prescribe, within the requirements of this act, the quantity of any commodity that may be transported in bulk ; and also the increased weight, in quantity greater than twenty-five hundred pounds, that may be carried in vehicles having a width of tire greater than four inches, and must cause such regulation to be recorded. 1 124. Any resident freeholder of such county may prosecute any person or persons violating any of the requirements of this and the two preceding paragraphs, before a justice of the peace of the county or mayor of any village or city [in such county], in any action for damages, in the name of the State of Ohio, for the use of the free macadamized or graveled road fund of the township where the roads are kept in repair by townships, and to [for] the county road fund where the roads are kept in repair by the county where the offense was committed ; and, on conviction, [such offender] must be fined not more [less] than five nor more than fifty dollars. On complaint of any freeholder, if, in the opinion of the board, the complaint is well founded, said board may also enjoin any person or persons who are engaged in the business of transporting heavy loads over such roads in violation of the requirements of this and the two preceding paragraphs, or the regulations prescribed under them, in an action in the name of the state ; and the court, in any such action, may render a judgment against the defendant or defendants for any dam- age done. 2 1 27}. Must remove drift from bridges, ditches, etc.— The superintend- ent of any free turnpike or improved road must remove or cause to be removed all timber or drift lodged against bridges, and all timber, 1 1 4904, as amended, 79 O. L. 86. 2 \ 4904, as amended, 79 O. L. 86. The words in brackets, seeming to be clearly necessary to the meaning of the statute, have been inserted by the editor. 286 ROAD LAWS OF OHIO. [chap. 10, 123-125 drift, and sediment lodged in and obstructing the free passage of water in ditches constructed for the draining and protection of such roads, adjoining and upon the line thereof, in his district. He must receive the same compensation for such work or duties performed as is prescribed by law for other road work. In case any superintend- ent fails or neglects to comply with the provisions of this paragraph, he will be held liable to a fine of not less than five nor more than twenty-five dollars. 1 !§ 4731, as amended, 81 O. L. 132. For similar provisions as to supervisors, see pars. 47-52, chapter 5. CHAP. 11, 1.] TURNPIKE AND PLANK-ROAD COMPANIES 287 CHAPTER XI. TURNPIKE AND PLANK-ROAD COMPANIES. Subdivision 1 (Paragraphs 1-110). Organization and operation of ROAD, AND GENERAL PROVISIONS. Subdivision 2 (Paragraphs 111-159). Concerning the repair of ROAD, AND MEASURES TO COMPEL THE SAME. Subdivision 3 (Paragraphs 160-187). Voluntary sale or gift of ROAD TO PRIVATE PERSONS, COUNTIES, OR MUNICIPALITIES, AND ITS APPRO- PRIATION AND CONVERSION INTO A FREE ROAD BY COUNTIES. Subdivision 4 (Paragraphs 188-199). Concerning mortgage of road, AND OF ITS SALE ON EXECUTION. Subdivision 5 (Paragraph 200). How certain free improved roads MAY BE CONVERTED INTO TOLL ROADS UNDER THIS CHAPTER. 1. Definitions, etc.— A turnpike, strictly speaking, is a gate or pike set across a road to stop travelers till toll is paid for traveling on the road. A turnpike-road is a road over which the public have a right to travel upon payment of toll, and on which the parties entitled to such toll have the right to erect such gates or pikes to insure its payment. In the United States, turnpike-roads are often called turnpikes, or pikes, just as the word hackney-coach is short- ened into hack, and stage-coach into stage. 1 As a consideration for this right to collect toll, the parties entitled to it are required to keep such roads in good condition and repair by graveling or mac- adamizing, or otherwise improving them. A plank-road is a turn- pike-road whose road-bed is improved by planking instead of graveling or macadamizing it, and is generally found in compara- tively new countries, where timber is plenty and the cheapest material available for such improvement. Plank-roads are being supplanted by other kinds of improved roads in Ohio.* *See Encyclopedia Am., Bouvier's Law Die. This process of changing words and phrases ml" >horter ones of the same meaning, is one of the growths to which all living languages are subject, and is a time-and-labor-saving process not to be regretted. 2 Incorporation and procedure of turnpike-road companies. — Persons who 288 ROAD LAWS OF OHIO. [CHAP. 11, 2 2. Roads improved by the public and paid for by taxation or propose to form a company to build and operate a turnpike-road must form a corporation, as directed in the chapter of the Kevised Statutes relating to the creation of corporations (§§ 3232-3269); and such companies, as well as those already in existence, are subject to the provisions of that chapter. As many of these provisions are of constant application to persons interested in such roads and in bridge companies, and as certain improved roads may be changed to turnpike roads also in accordance therewith (see paragraphs 200 of this chapter), the sections of that chapter are here given, being as follows — \ 3269 being given first, instead of last, and in substance: Sec. 3269. The provisions of this chapter do not apply when special provis- ion is made in chapters 11 and 12 of this volume, but the special provision made in those chapters shall govern, unless it clearly appears that the pro- visions are cumulative. Sec. 3232. By what laws governed. — Corporations created before the adop- tion of the present constitution, and which have not, by election or some other act, come to be governed by laws since passed, shall be governed and controlled by the laws then in force, and the valid modifications thereof since or herein enacted; and other corporations, now existing or hereafter created, shall be governed and controlled by the provisions of this title. Sec. 3233. What corporations may accept the provisions of this title. — A corporation created before the adoption of the present constitution, and now actually doing business, may accept any of the provisions of this title, and when a certified copy of such acceptance is filed with the secretary of state, so much of its charter as is inconsistent with the provisions of this title is hereby repealed. Sec. 3234. Corporations taking action under this title elect to be governed thereby. — Corporations created before the adoption of the present constitu- tion, which take any action under or in pursuance of this title, shall thereby and thereafter be deemed to have consented, and shall be held to be a cor- poration, and to have and exercise all and singular its franchises, under the present constitution, and the laws passed in pursuance thereof, and not otherwise. Sec. 3235. For what purposes formed. — Corporations may be formed in the manner provided in this chapter for any purpose for which individuals may lawfully associate themselves, except for dealing in real estate, or carry- ing on professional business; and if the organization is for profit, it must have a capital stock. Sec. 3236, as amended, 82 O. L. 134. Articles of incorporation. — Any number of persons, not less than live a majority of whom are citizens of this state, desiring to become incorporated, shall subscribe and acknowledge, before an officer authorized to take acknowledgments of deeds, articles of incorporation, which must contain : 1. The name of the corporation, which shall begin with the word "The," and end with the word "Company," unless CHAP. 11, 2.] TURNPIKE AND PLANK-ROAD COMPANIES. 289 assessment, chiefly under the provisions of chapters 6, 7, and 8, the organization is not for profit. 2. The place where it is to be located, or where its principal business is to be transacted. 3. The purpose for which it is formed. 4. The amount of its capital stock, if it is to have capital stock, and the number of shares into which the stock is divided. [ I his amended section contains some additional matter as to associations not for profit; not applicable to roads, etc. Ed.] Sec. 3237. What set forth in certain case. — When the organization is for a purpose which includes the construction of an improvement which is not to be located at a single place, the articles of incorporation must also set forth: 1. The kind of improvement intended to be constructed. 2. The termini of the improvement, and the counties in or through which it or its branches shall pass. Form of articles of incorporation. ARTICLES OF INCORPORATION OF THE H. AND S. TURNPIKE-ROAD COMPANY. Know all men by these presents, that we, the undersigned, natural persons and a majority of us being citizens of the State of Ohio, do hereby associate ourselves together into a corporation under the laws of the State of Ohio relating to turnpike companies. 1. The name of said corporation shall be "The H. and S. Turnpike-road Company." 2. The principal office of said company shall be at . 3. Said company is formed for the purpose of constructing, keeping in repair, and collecting tolls upon, a turnpike-road, running from to , in the county of [or, through the counties of ]. 4. The amount of the capital stock of said company shall be dollars, divided into shares of dollars each. In testimony whereof, we have hereunto set our hands this day of , 18 — . [Not less than, Jive signatures.] Signed and acknowledged in the presence of us: [Two witnesses.] State of Ohio, county, ss. On this day of , 18 — , before me, the subscriber, a notary public in and for said county, personally came , , the signers of the fore- going articles of incorporation, and acknowledged the signing thereof to be their voluntary act and deed for the uses and purposes therein mentioned. In testimony whereof I have hereunto subscribed my name and affixed my notarial seal on the day and year last above written. A. C, Notary Public, as aforesaid. Sec. 3238. Articles must be acknoivledged, etc. — The official character of the officer before whom the acknowledgment of articles of incorporation is made shall be certified by the clerk of the court of common pleas of the 19 290 ROAD LAWS OF OHIO. [CHAP. 11, 2 defined in chapter 10, arid repaired as provided in that chapter, are county in which the acknowledgment is taken, and the articles shall be filed in the office of the secretary of state, who shall record the same, and a copy duly certified by him shall be prima facie evidence of the existence of such corporation; and all certificates thereafter filed in the office of the secretary of state relating to the corporation shall be recorded. Sec. 3239. Corporation thereby created, and its general powers. — Upon such filing of the articles of incorporation, the persons who subscribed the same, their associates, successors, and assigns, by the name and style provided therein, shall thereafter be deemed a body corporate, with succession, and power to sue and be sued, contract and be contracted with, acquire and con- vey at pleasure ail such real or personal estate as maybe necessary and convenient to carry into effect the objects of the incorporation, to make and use a common seal, the same to alter at pleasure, and to do all needful acts to carry into effect the objects for which it was created. [Sections 3210 and 3241 do not apply.] Sec. 3242, as amended, 80 O. L. 42. Notice of opening books for subscription; may be waived. — The persons named in the articles of incorporation of a corporation for profit, or any five of them, shall order books to be opened for subscription to the capital stock of the corporation at such time or times and at such place or places as they may deem expedient, and of the time and place of opening which books at least thirty days' notice shall be given by publi- cation in a newspaper published or generally circulated in the county or counties where books of subscription are to be opened; provided, that such notice may be waived in writing by all the incorporators and such waiver shall be entered or copied in the records of said corporation. Form of notice. NOTICE. The undersigned, incorporators of The H. and S. Turnpike-road Company, hereby give notice that books will be opened for subscription to the capital stock of said company at — , on the day of , 18 — , at — o'clock — M. Dated at , 18 — . [Signed by all the Incorporators.] Sec. 3243. When subscriptions are payable. — An installment of ten per cent on each share of stock shall be payable at the time of making the sub- scription, and the residue thereof shall be paid in such installments, and at such times and places, and to such persons, as may be required by the direct- ors of the corporation. Sec. 324 1, as amended, 77 O. L. 266. Notice of election of directors.— A.* soon as ten per cent of the capital stock is subscribed, the subscribers of the articles of incorporation, or any five of them, shall so certify, in writing, to the secretary of state, and thereupon shall give notice to the stockholders, as CHAP. 11, 2.] TURNPIKE AND PLANK-ROAD COMPANIES 291 often, even in the statutes, called free turnpikes, though tney are also more properly designated as improved roads. provided, in section three thousand two hundred and forty-two, to meet at such time and place as they may designate, for the purpose of choosing not less than five nor more than fifteen directors, who shall continue in oflice until the time fixed for the annual election, and until their successors are hio, signed by [state how many] citizens of said county, representing that [give substance of the petition], and that application for the granting of said petition has also been made, on the day of , 18—. The H. and S. Turnpike Co. By I. C, President. 21. Proof of publication of this notice should be made as in para- graphs 21-23 of chapter 2, and presented to the commissioners 22-25. Form of remonstrance. To the board of county commissioners of county, Ohio : We, the undersigned, hereby remonstrate against the granting of the petition for granting the road [or, bridge, etc.] to the II. and S. turnpike-road company, for the following reasons: [give them]. ig [Signatures.] 26-30. Form of entry, granting or refusing the application. In the matter of the H. and S. Turnpike- ) Entry, granting petition as road Company. J i0 the hrid 9 e - The board heard and took into consideration the application of said turnpike company and the petition of A. B. and others asking for the right to enter upon and use the road filed with this board on _ 18— [and the remonstrances of and others opposing the same, if there were such], and the board finds that due notice of said petition and application has been duly given as required by law ; that said pe- tition was signed by at least twelve citizens interested in and living upon [as may be] said road, and that it will be for the interest of the community using such road to have it taken and used as prayed for in said petition. It is therefore ordered that, upon said turnpike company [here state the terms upon which the company may take the road], it may enter upon 300 ROAD LAWS OF OHIO. [CHAP. 11, 31-33 and use said road for the purpose of constructing said turnpike- road thereon. 31. A certified copy of this order may be obtained by said com- pany, and entered upon its minutes. 32. Width and grade. — All turnpikes and plank-roads must be opened not exceeding sixty feet wide, thirty feet of which must be cleared of brush and logs, and at least sixteen feet must be made an artificial road, composed of stone, gravel, wood, or other con- venient material, well compacted together in such manner as to secure a firm, even, and substantial road ; and in no case must the ascent in any such road be greater than five degrees ; but when a company has been licensed by the county commissioners as directed by law, and has collected tolls on its road for ten years or upward, it may demand and receive such tolls thereon as are authorized by law, when the grade does not exceed seven degrees. 1 32i. Mile stones to be put up. — Each company must put up a post or stone at the end of each mile, with the number of miles from some noted point or place, at one end of the road, fairly cut or painted thereon, and must place near each gate a board, with the rates of toll painted thereon. No toll can be demanded unless such boards are kept up. 2 33. Hoiv authority to take toll acquired. — A company, when it has completed its road, or any part of it not less than three miles, and when, from time to time thereafter, it has completed any further or continuous portion of it, may apply to the commissioners of the county in which the finished road, or part thereof, lies, or in case it lies in two or more counties, to the commissioners of either of the counties; and the commissioners must appoint three judicious, dis- interested freeholders, who must, on oath, examine the same, and report their opinion to the commissioners, in writing. If they re- port that the road, or such part of it, is completed agreeably to the provisions of this chapter, the commissioners must, by license in writing, authorize the company to erect gates, at suitable distances, and demand and receive, of persons traveling such road, the tolls allowed by law. If any such commissioner is a stockholder in the company making the application, the duties required of the com- '2 3477. 2 2 3480. CHAP. 11, 34-41.] TURNPIKE AND PLANK-POAD COMPANIES. 301 missioners will devolve upon the probate judge of such county or counties; and if any such probate judge is a stockholder in the company, such duties will devolve upon the common pleas judge of the district in which such road lies, or the judge of any of the dis- tricts within which such road lies, in case the same lies in two or more districts. 1 . 34 4s to road extended.— Any turnpike company, whose begin- ning point is a turnpike-road, and having completed more than two- and a i u df miles, but less than three miles, and connecting its road with an improved graveled road, or with another turnpike-road will have all the privileges granted by the preceding paragraph, and must in all other respects, conform to its requirements, if the county commissioners shall first authorize said privilege by a vote entered upon their journal. 2 35-38. Form of application for leave to receive tolls. To the board of county commissioners of county, Ohio : _ The H and S. Turnpike-road Company represents that \ij not already said in former application or communication it is a duly incorporated com- pany, for the purpose of constructing a. turnpike road from —to 1 and that] it has completed its road [or, that its has completed mile's of its road, said completed part beginning at and extending continuously to ], and respectfully asks that such proceedings be had by your honorable board as will authorize said company to erect gates and demand and receive toll on said completed [part of said] T ° Attest- The H. and S. Turnpike-Road Company, „ TT ' a By I. C, its President. S. H., Secretary. "* 39-41. Form of appointment of commissioners to view road. r Give caption as in paragraph 26.] The said company having reported that it has completed [state what] and asked for authority to demand and receive tolls on said completed ^Ordered, that A. J., B. K. and C. L., three judicious, disinterested freeholders of the county, be and they are hereby appointed to go upon said road, and being first duly sworn, to examine the same and report in writing their opinion as to whether said [part of said, if so,-] road has been constructed according to law. ^^ ~ 2 % 34780, 79 0. L. 144. i§3478. * 302 ROAD LAWS OF OHIO. [CHAP. 11, 42-53 42. Form of order to such commissioners. — A certified cop}' of the foregoing entry, or an order directed to them in the second person, and containing substantially the same matter as the entry, and also the law as found in paragraph 32, above, may be given to these commissioners. Attached to this order should be their certificate of «.ath. Such certificate can be readily adapted from paragraphs 25-27 of chapter 1. 4:]_46. Form of their report, which may also be attached to the the order to them : To the board of county commissioners of county, Ohio : In obedience to the order hereto attached, we were duly sworn, as will further appear from the certificate of oath also hereto attached; and on the day of , IS — , we went over the H. and S. Turn- pike-road [or part of it], described in the said order, and carefully ex- amined the same, and we found and now report that it has been con- structed [tell of what material, width, grade, etc., and how, in what condition road is, etc.] Also, that mile-stones have been erected, all as required by law. We recommend the acceptance of said road, and that toll be authorized to be collected thereon. j) ;l t e 18 . [Signed by the commissioners.] 47-51. Form of entry authorizing toll. [Give caption.] A. J., B. K., and C. L., commissioners, heretofore appointed to exam- ine said turnpike-road and report thereon, having reported [state what they report, or copy the report in full] And it appearing that said commissioners were duly sworn, and pro- ceeded in all respects according to law, and the report being favorable thereto, Ordered, that said II. and S. Turnpike-road Company be and they are hereby authorized to erect gates at suitable distances, and to demand and receive from persons traveling on said road the tolls allowed by law. 52. A certified copy of this entry should be given to said company, and entered in their minutes or record. 53. Bates of toll.— Every company entitled by the laws of this state, to charge tolls may receive from persons traveling on or using its road the following tolls, and no more, for every ten miles travel on such road, and in the same proportion for any less distance, CHAP. 11, 54-5.")] TURNPIKE AND PLANK-ROAD COMPANIES. 303 to wit: For every four-wheeled carriage or other vehicle, drawn by one horse or other animal, fifteen cents, and for each additional ani- mal five cents; for .very sled or sleigh drawn by one horse or other animal five cents, and for each additional animal five cents; for every horse or mule, and rider, five cents ; for every horse, mule, or ass, six months old or upward, three cents ; for every head of neat-cattle, six months old or upward, one cent; for every head of sheep or hogs, one-half cent; for every stage-coach or omnibus, drawn by two horses or other animals, twenty cents, and for each additional animal ten cents; and for every two-wheeled carriage, drawn by one horse or other animal, ten cents, and for each addi. tional animal five cents. 1 54. On all turnpike roads constructed of and kept in repair with two-thirds broken limestone, the companies operating the same may charge and receive for each ten miles travel on such road, and in the same proportion for any less distance, to wit : For every four- wheeled carriage or other vehicle, drawn by one horse or other ani- mal, twenty cents, and for each additional animal ten cents; for every sled or sleigh drawn by one horse or other animal teu cents, and for each additional animal five cents ; for every horse or mule, and rider, ten cents ; for every horse, mule, or ass, six months old or upward, five cents; for every head of neat- cattle, six months old or upward, one and a half cents; for every head of hogs three-fourths of a cent; for every head of sheep one-half cent ; for every stage-coach or omnibus, drawn by two horses or other animals, thirty cents, and for each additional ani- mal ten cents ; and for every two-wheeled carriage, drawn by one horse, fifteen cents 1 . 55. Rates for certain other roads. — A company incorporated for the purpose of constructing a turnpike or plank-road from a mine or quarry to a railroad, canal, slackwater navigation, other navigable water, macadamized road, or place within or upon the borders of this state, may, when such road is completed, charge and collect x \ 3481, as amejided, 79 O. L. 1 17. The laws [found in paragraphs 53-57, above] dividing all turnpike com- panies within the state into separate and distinct classes, have a uniform operation upon all the members of each class and are not in conflict with article '2, section 26, of the constitution of the state. State v. Turnpike Co., 37 Ohio St. 481. 304 ROAB LAWS OF OHIO. [CHAP. 11, 56-58 such amouut of toll for teams hauling the products of such mines or quarries on its road as its directors may determine, not exceeding four cents per mile for two-horse teams, and an increase of two cents per mile for each additional horse; but such rates can not be charged for teams hauling the products of such mines or quarries for more than eight miles ; nor can other travelers on such roads be charged more than the ordinary rate of toll per mile, as specified in paragraphs 53 and 54, above. 1 56. But for auy vehicle travelling over a plank-road having a load exceeding two tons net weight, toll must be paid in addition to the rates given above, not to exceed two cents per net ton per mile for such excess, at the discretion of the board of directors. 1 57. Who need not pay. — Persons going to and from their regular place of worship on the Sabbath, or to and from funerals, militia musters, or elections, jurymen going to and returning from their attendance at court, and the troops and armies of the United States and of this state, may pass on any such road free of toll. 1 58. Wlu a municipal limits are extended beyond a toll-gate. — No corn- pan v can hereafter erect a toll-gate and collect tolls within the lim- its of any city or village, or within eighty rods of such limits; and when, by the creation of a village, or the extension of the limits of a city or village, a toll-gate is brought within such limit-, or within eighty rods thereof, the company must remove the toll-gate to a point on its road not nearer to such limits than eighty rods ; and so much of its road as is included within the limits of such city or vil- lage will become a public street, and must be kept in repair as other public streets, but no toll can be taken thereon. But compensation must be made to the company for the damages it will sustain by reason of such removal of its toll-gate and surrender of such part of its road ; and if the company and the proper authorities of the city or village do not agree thereon, the damages must be ascertained in pro- ceedings which the municipal authorities must commence, to appro- priate such property to the use aforesaid, in the manner provided by law for the appropriation of property by municipal corporations, or, iD default of such agreement, or the institution of such appropriation proceedings, the company, at any time after the removal of the toll- 1 See note on preceding page. CHAP. 11, 56-58] TURNPIKE AND PLANK-ROAD COMPANIES. 305 gate, may recover the compensation from the city or village by- civil action. 1 For additional provisions, see paragraphs 4-12, chapter 1(!. *§ 3491. An injunction against a turnpike maintaining a toll-gate within eighty rods of the city limits will not be granted at the suit of a private individual not injured differently from the general traveling public. If the turnpike is entitle! to maintain a gate, but the locality only is objected to, the amount of tolls not being complained of, the injury is merely a technical damage; if it is a substantial damage, it is merely obstructing the highway, inconveniencing plaintiffs use of the road, or compelling him to take some more circuitous route; this is a public nuisance, and not special to the plaintiff. [Ham. Dist. Ct., 1876.] Kelly v. Turnpike Co., 1 Bull. 1°>2. In a proceeding to assess the value of that part of a turnpike-road within territory annexed to a city: Held, the receipts at the toll-gates, less the ex- penses (i. e., the net earnings of this partof the road), is the proper evidence to determine its value. That, by the act of April 4, 1878 (75 O. L. 90), the gates in the annexed territory were properly maintained until compensa- tion, and were not to be removed before bringing suit. That the stock having no market value, but little of it being bought and sold, evidence of experts as to the value of investments, and the rate per cent at which the earnings of a turnpike-road should be capitalized, is com- petent. [Ham. Dist. Ct., 1880.] Cincinnati v. Scarborough, 5 Bull. 77; 8 Rec. 562. A municipal corporation has no power, under section 570 of the municipal code, to institute proceedings to condemn any less than the whole portion of a turnpike within its limits; but where the turnpike also brought a suit to compel the city to condemn the whole portion of the pike within its limits, and the two suits are consolidated, though they are not such as, under the code, can be consolidated, yet, if the verdict finds separate values and that the second suit is just, it will be sustained. Turnpike Co. v. Cincinnati, 2 Bull. 12G; 4 Rec. 325. No existing right of a turnpike company to charge and collect toll for that portion of its road within municipal limits, and eighty rods beyond, is taken away by section 34 of the turnpike law (1 S. & C. 295), which pre- scribes that the company is not authorized "to erect or keep up any toll- gate, or receive tolls, within the corporate limits, etc., <>r within eighty rods of such limits." Springfield and Clifton Turnpike Co. v. Springfield, 27 Q. S. 584. A toll-gate, properly located outside the prescribed boundaries, may charge and collect toll, not only for the eighty rods leading to the city 20 306 ROAD LAWS OF OHIO. [CHAP. 11, 59-60 59. Penalties for evading toll-gates. — A person using any turnpike- road provided for in this chapter, who, with intent to defraud any such company, or to evade the payment of toll, passes through any private gate or bars, or along any other ground near a turnpike or plank-road gate, erected in pursuance of law, or practices any fraud- ulent or forcible means with intent to evade or lessen the payment of such toll, is liable, for every such offense, to forfeit and pay a fine of five dollars, to be recovered, with costs of suit and amount of toll due for passing through any such gate, before any justice of the peace of the county in which such offense was committed, without stay of execution ; and the fine or fines, when collected for such offense, must be paid into the common school fund in the township in which such offense was committed ; but nothing herein is to be so construed as to prevent persons using any such road between the gates for common purposes. 1 60. Penalties for detaining travelers at gate. --If a toll-gatherer on a turnpike or plank-road unreasonably detain a passenger after the toll has been paid or tendered, or demand or receive greater toll than is allowed by law on such road, he will be liable to forfeit and pay a sum not exceeding twenty dollars, to be recovered, with costs of suit, before any justice of the peace having jurisdiction thereof, limits, but for such portion of the road as is lawfully within the city limits. lb. A contract between a turnpike company and a city, allowing the former to make a portion of its road within the limits of the latter, and collect tolls thereon, is to be construed with reference to the laws providing for the loca- tion of toll-gates. And the company, having a toll-gate properly located, may collect tolls thereat for the portion of the road within the city, it the contract be not otherwise objectionable. lb. A corporation organized under the act of May 7, I860, to provide for the keeping in repair of gravel and macadamized roads, etc. (66 O. L. 131), al- though the road of such corporation be a plank-road, constructed under the act of March 29, 18G7 (64 0. L. 81), must be regarded as a turnpike com- pany, whose only remedy (for compensation for a portion of its road, which has become a street of a city, by an extension of the city limits) is by a pro- ceeding under section 598 of the municipal code, as amended March 30, 1875 (72 <). L. 172), and such company is not entitled to a civil action, as a plank- road company, under the act of March 23, 1869 (66 O. L. 36). Plank-road Co. v. Toledo, 31 Ohio St. 588. l § 3479, as amended, 78 O. L. 78. CHAP 11, 61-65.] TURNPIKE AND PLANK-ROAD COMPANIES. 307 without stay of execution ; but no suit can be commenced against a toll-gatherer for an offense committed or penally incurred under this paragraph, unless it be commenced within twenty days from the time the offense is committed or the penalty incurred. 1 61. Penalties for fast riding or driving over bridges, or ranging fire. No person is permitted to carry fire across any wooden bridge, on any turnpike or plank-road, in this state, except in a lantern or close vessel, under a penalty of five dollars; and no person is permitted to ride or drive a horse, or drive a stage-coach or other vehicle, over any such bridge, faster than a walk, under a penalty of two dollars ; but United States express mail is not subject to such penalty.' 2 62. Penalties for obstructing roads.— Whoever deposits any wood, stone, or other kind of material, on any part of a turnpike or plank- road inside of the ditches of such road, or outside of the ditches, but so near thereto as to cause the banks thereof to break into the same, or causes the accumulation of rubbish, or any kind of obstruction, will be liable to forfeit and pay the sum of five dollars. 3 63. How penalties to be recovered.— All penalties and forfeitures incurred under the provisions of this chapter are recoverable, with costs of suit, before any justice of the peace having jurisdiction of the same, and must be- paid into the treasury of the proper county, as in other cases. 4 64. Travelers must, on meeting, go to the right— AW persons driving carriages or riding on horseback on any turnpike or plank-road must, on meeting carriages, or persons on horseback, keep to the right, so as to leave at least half of the road free ; and if any person neg- lect or refuse to comply with the provisions of this section, or in any other manner hinder or obstruct any person in the free passage of "any such road, he will be liable, on conviction thereof, before any justice of the peace having jurisdiction thereof, for every such offense, to forfeit and pay not less than one dollar nor more than twenty dollars, at the discretion of the justice, at the suit and for the use of the person aggrieved, and will moreover be liable to the person aggrieved for any damages he may sustain. 5 65. Treasurer to hold no other office in company. — The treasurer of a company can hold no other office in the company, and when ap- i l 3486. ^§ 3487. 3 g 3488. * g 3489. 5§ 3490. See " The Law of the Road," chapter 22. 308 ROAD LAWS OF OHIO. [chap. 11, 66-68 pointed, and before assuming the duties of bis office, he must take an oath of office, and give bond, with security to tbe satisfaction of the board of directors, conditioned for the faithful performance of his duties according to law. 1 66. Toll-gate keeper is agent of company; judgments and executions. Tbe keeper of a gate on any turnpike or plank-road will be deemed and held to be the agent of the company or person owning the road; and judgment obtained against any such gate-keeper for a violation of this chapter will be considered and held to be a judg- ment against the company or person owning the road, and execu- tion may issue thereon accordingly against the gate-keeper and such company or person. 2 67. How obstructions to road or ditches may be removed ; penalties. If a person whose fence is upon, or who erects a fence upon, the limits of a turnpike or plank-road, or who places within the limits of such road any wood, stone, or other obstruction, other than per- manent buildings already constructed, so as to interfere with the public travel upon such road, or prevents or interferes with the free passage of water in the side drains or ditches of such road, upon being notified by the president, a director, or the superintendent of such road to remove such fence or other obstruction, neglect or re- fuse to comply with such requirement withiu ten days from the serv- ice of such notice, he will be liable to forfeit and pay to and for the benefit of the company owning such road a sum not less than one nor more than ten dollars, for each and every day he permits such fence or obstruction to remain upon such road after the expira- tion of ten days from the service of such notice ; which sum will be recoverable by action in the name of the company, before any jus- tice of the peace of the township where the fence is situate or the obstruction placed. 3 68. Company may assess stockholders. — When the stockholders of a turnpike or plank-road company are individually liable for the liabil- ities of such company, the proportion that each stockholder will be required to pay to meet the existing liabilities may be determined ;n id collected as follows. 4 >§3513. 2 ? 0514. 3 § 3515. See chapter. 5 as to similar obstructions and their removal by supervisors. "J 3616. CHAP. 11, 69-75.] TURNPIKE AND PLANK-ROAD COMPANIES. 309 69. Notice of meeting for thd purpose.— The directors of any such company, desiring to take such action, may give notice to the stock- holders, by publication for at least thirty days in at least two news- papers published in the counties in which the road is located, for a meeting of the stockholders, specifying the time and place of meet- ing and the object thereof. 1 70-72. Form of notice. Turnpike Stockholders' Meeting.— A meeting of the stockholders of the H. and S. Turnpike Road will be held on , the - - day of jg a t o'clock — M., at , to consider the liabilities of said company and stockholders and to take action in reference to the By order of the board of directors, J. P., Secretary. 73. Proceedings thereat,— At such meeting a detailed statement must be submitted, showing the assets and indebtedness of the com- pany ; and a majority of the stockholders may there determine upon the basis for assessing the stockholders to meet the indebtedness of such company, and fix the time or times, and the mode, for the pay- ment of the amount assessed against each individual or corporation." 74. Collection of assessments.— No stockholder will be liable beyond the sum fixed by the charter of such company ; and all assess- ments, when paid, will be a credit on his liability. A stockholder who fails to pay, as required, the amount so assessed, will be liable to an action in the name of the company for the recovery thereof, as in other cases of indebtedness. 3 7:>. Must keep accounts and books open to inspection, or forfeit char- ter. Every company must cause to be kept a fair and accurate account of the whole expense of making its road, with the expense of toll-gatherers, and all other necessary agents or officers whom the company may find it convenient to employ, and a fair and accurate account of the amount of toll received. The books of every com- pany must always be open for the inspection of the commissioners i §3517. 2 § 3518. A statement of assets may be adapted from the form found in pars. 90-97, below, s §3519. 310 ROAD LAWS OF OHIO. [CHAP. 11, 76-88 of any county through or into which it passes, or of the agent of the general assembly of the state, and of any stockholder ; and if any company refuse or neglect to exhibit its accounts, agreeably to the provisions of this paragraph, when required to exhibit them by such commissioners or agent, all the rights granted by this chapter, and its right to be a corporation, will cease and determine. 1 76. Tixe books a company must keep. — The directors of each com- pany must cause books to be kept, in which must be entered all the transactions of the company, with the dates of such transactions; also stock books, in which must be entered the names of the stock- holders, the number of shares of stock owned by each, and all transfers of stock made during each year, and by and to whom made ; on the first Monday of January of each year the directors must cause a statement to be made in such stock books, showing the names of the owners of the stock of the company, and the respective number of shares held by each ; and all books herein provided for must, at all proper times, be open to the inspection of any stock- holder. 2 77. Toll-gate keepers must report. — A keeper of a toll-gate must, on the first Monday of January of each year, and at such other times as may be required by the company, make a report in writing, under oath, showing the amount of toll received at each gate re- spectively for the preceding year, the amounts paid to the company from time to time, the amounts retained on account of salaries of gate-keepers, the amount of tolls outstanding and uncollected, and also who and to what amount persons have passed through such gates without paying tolls, and by whose orders such persons have so passed ; and all such statements must be submitted to the stock- holders at their annual meeting on the second Monday of January of each year. 3 This report may be as follows : 78-88. Gate-keepers form of report. , Ohio, January , 18 — . To the directors of the H. & S. Turnpike Road Company : I report that during the preceding year [18 — ], the total amount of toll collected at toll-gate No. - — , on said road, is dollars and cents; and that the total amount of tolls outstanding and un- collected, for that year, is dollars and cents. ^3509. * g 3510. 3 § 3511. CHAP. 11, 89.] TURNPIKE AND PLANK-ROAD COMPANIES. 311 1 also report as follows for that year: When. Names of persons who passed through gate without paying. — '= - c By whose orders such persons passed. When. Respectfully submitted, C. W., Keeper of said gate. State of Ohio, county, ss. C. W., being sworn, says that he is the keeper of the gate mentioned in the foregoing report, and that said report is true and correct in every respect, as he verily believes. C. W. Sworn to and subscribed before me, this \_finish in uswil form~\. 89. Directors' annual report to stockholders, and dividends. — The directors of each company must cause to be made, in writing, and submitted to the stockholders of the company, at the regular meet- ing of the stockholders on the second Monday of January of each year — notice of which meeting must be given by the directors, by publication, for four consecutive weeks, in a newspaper printed and of geueral circulation in each county in which any part of the road is situate — a report of the transactions of the company for the year next preceding, which report must show the amount of revenue received by the compauy from all sources during the year, and the amount of tolls received at each gate respectively; also a statement in detail of all the items of expenditure of the company, for all pur- poses, including the amount expended on each mile of the road re- spectively, the amount paid to each officer of the company for his services, the amount paid to gate-keepers for salaries or otherwise, and the amount of money on hand after paying expenses of the company ; also a statement of the outstanding liabilities of the com- pany, and to whom owing, and of the amounts due to the company, and by whom owing, and how secured ; and the directors must order a dividend to be made of the money then on hand, unless otherwise ordered by a majority of persons present at such meeting owning stock in the company. 1 1 g 3512. 312 ROAD LAWS OF OHIO. [CHAP. 11, 90-97 M o o O « --• r- p - p< 6 o o o o ID R ei ! - 1 u o 3 o o a o Is c fa _- 0J ■a '13 I 3 o o 1 a* s • c c "3 p. 1 c 6 I » S O Salary as Presi- dent Salary as gate- keeper. 100 loads gravel. Etc. S o "> o '— J. C. C. W. J. D. Expended on. -J 1 «* oj 7. No. 1. No. 2. Etc. Ain't of toll rec'd at. 6 1 ««• o 6 a '< K y, y. B S S E-> H Eh = © <» k ^ « S Z. '? r « ■^ - - s 5 3 >> PQ 5 ?> V ■< CHAP. 11, 98-103.] TURNPIKE AND PLANK-ROAD COMPANIES. 313 98. Additional stock authorized.— The directors of any company may open books of subscription along the line of its road for the purpose of raising additional stock for the completion, extension, planking, or otherwise improving or repairing its road. 1 99. Tiro or more com] >tt it ir* may consolidate. — When two or more turnpike or plank-road companies desire to consolidate themselves into :i single corporation, they may do so in the manner, and sub- ject to the rules, provided by law for the consolidation of railroad companies. 1 100. May f action against the turnpike company for the amount paid for the same, together with one hundred per cent penalty, to be re- covered before any justice of the peace of the township. 4 108. Construction of sidewalks to turnpikes, etc. — The council, or trustees, of a municipal corporation, through or into which any turnpike or plank-road passes or enters, may, with the consent of 1 £ 3527. See \ 3238. in note on pages 288-2!»0, as to filing and recording articles of incorporation. A form of notice can be adopted from pars. 69-72, above. 1 \ 3528. See, generally,- note 2 to par. 1. 3 § 3529. *§4730. CHAP. 11, 109-111.] TURNPIKE AND PLANK-ROAD COMPANIES. 315 the authority having control or direction thereof, cause to be con- structed on the sides of such road, sidewalks, not exceeding twelve feet in width, ami gutters for the passage of water; and may also cause the same, when constructed, to be kept in proper order and repair; and the council, or trustees, have power, for the purpose of the construction or repair of such sidewalks or gutters, to assess and collect the charges and expenses thereof on the owners of lots and lands abutting on such road, and to supervise and control such side- walks and gutters, in all respects as if the road were a street of the corporation. 1 109. The county may require any bridge or culvert to be enlarged, etc. The commissioners of any county may, when necessary to the public health, convenience, or welfare, cause to be constructed, deepened, or enlarged, any bridge or culvert, made necessary by the crossing of any ditch, drain, water-course, or stream of water, by any railroad, turnpike, plank-road, or other road of any corporation, at the ex- pense of such corporation. A failure to construct, deepen, or enlarge any such bridge or culvert within the twenty days specified below must be taken as a refusal to do the same ; and thereupon the commissioners must at once proceed to let the work of con- structing, deepening, or enlarging the same, to some suitable person, for such reasonable price as they may be able to agree upon, and assess the corporation with the price paid therefor, and all costs of letting the same. Such assessment will be a lien upon the property of the corporation, and must be collected as other taxes. Before the commissioners let such work they must give to the corporation, its agent or attorney, at least twenty days' actual notice of the necessity of the work. 2 110. Suits against such roads. — Generally speaking, an action against a turnpike company may be brought in any county in which any part of its road lies. 3 111. Turnpikes, plank-roads, etc., as affected by municipal corpora- tions. — There are certain provisions of law in subdivision 1 of chapter 16, under this head, which need only be referred to here ; and others in the paragraphs next below, in this chapter. i g 2331. 2 H-W5. s § 5028. See §? 5022-5033. As to some suits before magistrates, see "pen- alties" in paragraphs 59-64, 07, 107 of this chapter. 316 ROAD LAWS OF OHIO. [CHAP. 11, 112-114 Subdivision 2. Concerning the repair of roads, and measures to compel the same. 112. Repair of roads within municipalities. — If a company fail to keep any part of its road within the limits of a municipal cor- poration in repair for five days successively, the proper authority of such municipal corporation may pass a resolution requiring such company to repair the same within ten days after the service of a copy of such resolution on the gate-keeper nearest such municipal corporation, and the company must declare its intention to abandon or repair the same ; in case of a failure or refusal so to do within thirty days, or in case of a failure or refusal to repair in ninety days, the municipal corporation may file a complaint, in writing, with a copy of the resolution, in the court of common pleas of the county, describing the portion of the road required to be repaired; and the court, or any judge thereof, must appoint two disinterested persons as inspectors, who must view the portion of the road com- plained of, and return their findings thereon, under oath, to the court, within ten days ; and if they find the complaint to be true, such portion of the road must be declared abandoned by the- com- pany; and the municipal corporation may improve or repair the same, and assess and collect the costs of such improvement or re- pairs in the same way as is provided by law in relation to the- improvement of streets. 1 113. Form of resolution by municipal corporation. Be it resolved, by the council of the city [or village} of , That the H. and S. Turnpike-road Company be, and it is, hereby required to repair thai part of its road lying [state the part required to be repaired] within ten days alter service of a copy of this resolution. And the clerk [or other offia r] is hereby directed to serve a copy of this resolution on , a gate-keeper of said road, without delay. 114. The person serving the notice should indorse thereon the date and manner of service. See paragraphs 26-39 of chapter 19. 1 g 3482. CHAP. 11, 115-126.] TURNPIKE AND PLANK-ROAD COMPANIES. 317 115-124. Form of complaint to court. State of Ohio, county, ss. In the court of common pleas. The Village of j vs. > Complaint. The H. and S. Turnpike-road Company, j The said village represents that the road of said company lies in part within the limits of said municipal corporation, and that said company has failed to keep the following described part of said road, within said limits, in repair, to wit: [state the part, as in the resolution]. On the day of , 18 — , the council of said village passed a resolution, a copy of which is hereto attached, requiring said company to repair said part of said road, and on the day of , 18—, a copy of said resolution was duly served on , the gate-keeper of said road nearest said village, but said road has failed to make the repairs required, and has not declared its intention to abandon said road. Wherefore, said village prays that two disinterested persons may be appointed inspectors to view said portion of road, and report to this court as provided by law, and that said part of said road may be de- clared abandoned by said company. [Signed.! The Village of . By , its Attorney [or Mayor, etc., as may le~J. State of Ohio, county, ss. W. K., being duly sworn, says that he is the clerk of said village [etc., as may be~], and that the facts set forth in the foregoing complaint are true, as he verily believes. W. K. Sworn to and subscribed before me this ■ day of , 18 — . A. C, Notary Public. county, Ohio. 125. For form of appointment of inspector, and of order to them, easily adaptable to this case, see paragraphs 39-41. 126. Proceedings to enforce repair in such cases. — Notice of the complaint, and of the appointment and time of meeting of the in- spector, must be served on the president or other officer of the com- pany, or at its principal office, five days before the meeting of the in- spectors; and if such service be made by any person other than the sheriff", it must be verified by the oath of the person making the same. No toll can be received at the gates for the portion of the road so declared abandoned ; and if the keeper of any gate demand and receive toll for the same, he will be liable to pay the sum of five dollars to the party injured, to be recovered by civil action before any justice of the peace having jurisdiction. The costs of the pro- ceedings on the complaint must be paid by the company, if the ac- 318 ROAD LAWS OF OHIO. [CHAP. 11, 127-136 tion be sustained ; but if not sustained, they must be paid by the municipal corporation, and execution will issue therefor, as in other cases. 1 127-129. Form of notice may be by regular summons, or as follows: To the IT. and S. Turnpike-road Company: Your are hereby notified that on the day of , 18 — , a com- plaint was filed against you by , setting forth that \_state what is com- plained of]. You are also notified that inspectors have been appointed in relation to said complaint, who have been ordered to inspect the part of said road complained of, on the day of , 18 — , and to report their findings to this court, according to law, not later than the day of , 18—. 130. Service of notice may best be made by the sheriff; but if served by another person, the form of service, verification, etc., may be in substance as provided in paragraphs 25-38 of chapter 19. 131. Inspectors' oath, doings, and report. — The inspectors having received their order from the court, should proceed at the proper time before some officer authorized to administer oaths, and, being sworn, should attach the certificate of such oath to the order. On the day named, they should go to the place complained of, and, hav- ing inspected it, should attach a report of their findings to this order, and return these papers all to the court that gave the order. 132-135. Form of report. In obedience to the order hereto attached, we were duly sworn, as further appears from the certificate of oath hereto attached ; and on , IS — , we went to the place on the H. and S. Turnpike-road speci- fied in said order, and, having then and there carefully inspected the same, we found and now report that said road is, at the place specified, much out of repair and in [state what condition; as, bad condition, cut into ruts, the gravel nearly all washed away or pushed into the mud of the road-bed, etc., according to the facts], and that said complaint is true. Respectfully submitted, , 18—. A. G., L. D., Inspectors. 136. Repair of roads outside of municipalities. — If any company 1 1 3; 8:5. CHAP 11, 137-145.] TURNPIKE AND PLANK-ROAD COMPANIES. 319 fail to keep in repair its road outside the limits of a municipal cor- poration for five days successively, or fail to build or rebuild any of the bridges or culverts across any or all of the streams crossing its road for a period of six months, any person may file a complaint, in writing, before any justice of the peace of the county, setting forth the nature and extent of the defect complained of, and designating the place or places in the road where it exists. 1 137-139. Form of complaint. State of Ohio, county ) m -, i • , _£ " > SS. Jurnpdce complaint. To IT. M., a justice of the peace of said county: The undersigned complains that the [or, a bridge, or, culvert on the] H. and S. Turnpike road, at [state where'], in said county, is now and for the five days last past has been out of repair [or, washed away, etc., if a bridge or culvert, and so — and in any case, set forth the nature and defect complained of ; for instance, as set forth in paragraphs 132-135, above'], and asks that such proceedings be had in relation thereto as provided by law in such cases. A. P. Signed by me this day of , 18 — . 140. Notice of complaint, and inspectors appointed. — The justice, upon at least three days' notice, to be given to the gatekeeper near- est the place complained of, must appoint two disinterested persons as inspectors, as further mentioned below. 1 141-144. Form of notice of complaint. State of Ohio, county ) , T ,. ,- f > i\olice oj complaint. To G. K., as gate keeper of the H. and S. Turnpike-road: You are hereby notified that on the day of , 18 — , a com* plaint was filed against said road by A. P., setting forth that [stale what, as in the complaint] ; and that on the day of , 18 , I will ap- point two inspectors to examine into the truth of matter complained of. Witness my hand this day of , 18—. II. M\, ,/. P. 14-"). Service of notice.— -This notice, and the others in the case, may be served by the constable, and return made as to service, just as in case of summons. But if made by another, it should be veri- l g 3484. 320 ROAD LAWS OF OHIO. [CHAP. 11, 146-156 fied, as provided in paragraph 130, above. There should be some written evidence filed with the justice, of the service of every no- tice required. 146. Appointment of inspectors. — At the time mentioned in the notice, the justice must, unless the matter is continued as other cases for good cause, appoint the inspectors mentioned in paragraph 140, above, noting such appointment in his docket of the case and give them notice of the appoiniment, which may be as follows : 147-153. Form of appointment. State of Ohio, county of . To A. L. and B. W. : You have been appointed by me, in the matter of the complaint of A. P. against the H. and S. Turnpike-road, wherein said A. P. com- plains that [state what, in substance, as in the complaint']. You will therefore, within five days, having first been duly sworn, 1 and having given to G. K., gate-keeper at , reasonable notice of your going, go to the place complained of on said road and then and there examine into the truth of the matter complained of. And if you find the complaint to be true, you will file with me a re- port, in writing, of your findings, and send a certified copy of said re- port to each of the gate-keepers of the toll-gates on said road between which said defective place [or, places] is located. Witness my hand this day of , 18 — . H. M., -/. P. 154. Proceedings of the inspectors. — The inspectors must meet at the place complained of, having first given to the gate-keeper men- tioned in paragraph 140, above, reasonable notice of that time and place of meeting. The inspectors must then examine into the truth of the matter complained of, and, if they find the complaint to be true, they must file with the justice a report of their finding, in writing, and send a certified copy of the complaint, and of their finding thereon, to the keeper of each of the gates between which the defective place or bridge is located.' 2 155. Report of inspectors. — They should further proceed and report as directed in paragraphs 132-135, above. 15(5. Record of complaint and report; fees and costs.— The justice JThe statute does not specifically require them to be sworn, but they should be in analogy to all similar appointees. The J. P. may here add "by me." 2 §3484. " cnAF. 11, 157-1.39.] turnpike and plank-road companies. 321 must record the complaint, and the report of the inspectors; and the inspectors and justice will be entitled to receive- one dollar per day for their services, which must he paid by the company, if the complaint be sustained, and if it fail, then by the complainant; ami to the amount so taxed must be added the expense of sending the the notice to the gatedveepers, as required by paragraph 154, which must he paid as aforesaid, and for which the justice must render judgment against the party liable for the payment thereof. 1 157. No (oil colleeted, when; penalties, if collected. — After receiving the certified copies mentioned in paragraph 154, no toll can be re- ceived at such gates for the immediate distance until the parts of the road found defective by the inspectors are fully repaired, or an appeal is taken as hereinafter provided. If the keeper of any such gate demand and receive toll contrary to the provisions of this para- graph, he will be liable to pay the sum of five dollars to the party injured, to be recovered by action before any justice of the peace having jurisdiction. 1 158. Company liable for damages. — The company will be liable to any person injured, for the damages sustained by reason of such road or bridge being suffered to remain out of repair by the neglect of the company. 1 159. Appeals in such cases. — If the sum necessary to make such repairs exceed twenty dollars, the company may appeal the proceed- ing, and from the report and judgment as to costs, to the court of common pleas of the county, on filing affidavit as to cost of repairs, and giving bail as in other cases of appeal, within ten days after the service of the certified copy of the report of the inspectors. The condition of the appeal bond must be to abide by and perforin the order of the court of common pleas. The court of common pleas must hear and determine as to the truth of the complaint and report, and make such order as to the collection of tolls while the proceeding is pending as the court may deem just ; and if, upon the final hearing, the court find the complaint and report true, in whole or in part, it must make such order as to such repairs, and as to the collection of tolls, as it may deem just. 2 §3484. 2 g 3485 _ 21 322 road laws of ohio. [chap. 11, 160-162 Subdivision 3. Concerning the voluntary sale or gift of road to private persons, counties, or municipalities, and its appropriation and conver- sion into a free road by countiks. 1 160. Transfer of road to private persons. — Any such company may, with the consent of three-fourths of the stockholders, relinquish and transfer, by sale or otherwise, to any person or persons other than commissioners of counties, the whole or any part of its road, to- gether with all rights and privileges appertaining thereto. Such sale or relinquishment must be evidenced by a written deed of con- veyance, under the seal of such company, signed by the president or other principal officer of such company, and the secretary or other recording officer thereof. Before it will have any validity or effect, such deed must be recorded in the official records of deeds of each county within which the road, or any part thereof, which has been so sold and conveyed, lies, or be left for record in the office containing such official records. 2 161. Such sale or transfer may be made upon the consent of the holders of three-fourths of the entire stock of the company, the holders of the stock so consenting in that case to be liable in their individual capacity to any stockholder not assenting, for such loss or injury as such non-assenting stockholder may sustain by reason of such sale or transfer. 2 162. Hoiv road may be given to county. — Any company having its road located or constructed, or having the corporate right to con- struct auy such road, through or into any county or counties of this state, may, with the consent of three-fourths of the stockholders, and with the like consent of all the commissioners of such county or counties, relinquish and transfer to the commissioners of such county or counties the whole or any part of its road, together with 3 The proceedings under this subdivision are analogous, in many respects, to the proceedings in chapter 9; and the forms there found may be adapted or h.uked to for suggestions in the cases arising under this subdivision, when no forms are given in it. 2 2 ?>4!»7. See paragraphs 2-7, chapter 9, for forms of consent of stock- holders. The deed may be adrtpted from an ordinary printed form of quit- claim or warranty deed; as may be agreed upon, e. g., paragraphs 167-176, below. CHAP. 11, 163-166.] TURNPIKE AND TLANK-ROAD COMPANIES. 323 all rights and privileges appertaining thereto ; but any such trans- fer to such commissioners must be limited to the part of such road within the boundaries of such counties respectively, and the transfer must be without consideration ; and no tolls can be collected on such road within such county or counties. 1 163. How mch transfer to be evidenced. — Such transfer must be evidenced by the execution of a written declaration, signed by the president or other principal officer, and the secretary or other re- cording officer, and under the seal of the company, and will take effect and have full force when there is deposited with the auditor of the county within which the relinquished road lies the written declaration, or a copy thereof, and an entry is made upon the jour- nal of the commissioners of such county, of an acceptance, signed by all the commissioners, of such relinquishment or transfer. This written declaration, so deposited, must be entered by the auditor upon his record of roads ; and thereafter such road, or part of road, will be under the control of the commissioners of the county in which the same lies, who must, by a proper order, provide that the same shall be a public highway, and that no tolls be collected thereon within the limits of such county. 2 164. Forms of stockholders' consent, etc., can be adapted from paragraphs 2-7 of chapter 9, and the deed may be as in paragraphs 167-176, below. 165. When and how a road may be sold to county. — The board of directors of any company, when authorized so to do by a vote of the holders of a majority of the stock of the company, represented at a meeting of the stockholders called for that purpose by either the board of directors or ten stockholders of the company, of which at least twenty days' public notice has been given, by advertisement in not more than two newspapers published in the county where such road or part thereof is situate, must sell and convey the whole or any part of its road to the commissioners of the county, together with all rights and privileges appertaining thereto. 3 166. Deed required. — Such sale or relinquishment must be evi- denced by a written deed of conveyance, under the seal of such i§3495. 2 g34!)f>. 3 g 3498. For soniewhut similar provisions, and for adaptable f jrms, see chapter 9. 324 ROAD LAWS OF OHIO. [chap. 11, 167-176 company, signed by the president or other principal officer of such company, and the secretary or other recording officer thereof; hut before such deed "will have any validity or effect, it must be recorded in the official records of deeds of each county within which the road or any part thereof which has been so sold and conveyed lies, or be left for record in the office containing such official records. 1 167-176. Form of deed or declaration may be as follows : Know all men by these presents, that the H. and S. Turnpike-road Company, duly incorporated under the laws of Ohio, in consideration of dollars [or, without any consideration], to it in hand paid by R. S. [or, the commissioners of county, Ohio], and by virtue of the authority conferred upon it by section 3497 [or 3495 and 3496, etc., as may be] of the Revised Statutes of Ohio, three-fourths of its stockhold- ers [or, the holders of three-fourths of its stock] hereto having con- sented [as shown by a writing hereto attached, if so] does hereby grant, bargain, sell, convey, and forever quitclaim unto said R. S. [or, commis- sioners of county, Ohio], all of its right, title, and interest in and to the following described [or, part of said] H. and S. Turnpike-road, situate in county, Ohio, to wit : Beginning at , in said county, thence extending [and further describe the road or part conveyed]. To have and to hold the same, with all the rights, privileges, and ap- purtenances thereunto belonging, to said R. S., his heirs and assigns forever [or, to said commissioners, their successors and assigns forever]. In testimony whereof, the said company has hereunto set its name and corporate seal, and I. C, its president, and J. P., its secretary, have hereto set their hands, this day of , eighteen hundred and Signed and acknowl-1 ^ H ^ R TtnwpiKE _ R0AD Co . [lTS SEAL i edged m ouroresence: . r , D i , r j * »*• ;- 1. t ., Jrrestdent oj said company. j,' ^. '' I ''• -^-' Secretary of said company. State of Ohio, county, ss. On this day of , 18 — , before me, a notary public [or, J. P., etc.] in and for said county, personally appeared the II. and S. Turn- pike-road Company, by its president and secretary, named below, and I. C, the president of said company, and J P., the secretary of said company, and acknowledged the signing and sealing of the foregoing instrument to be their voluntary act and deed. Witness my official seal and signature, on the day 1 a ~ t above men- tioned. II. P., Notary Public. 1 §3498. CHAP. 11, 177-178.] TURNPIKE AND PLANK-ROAD COMPANIES. 325 177. Purchase of road by county commissioners on petition, and after vote of citizens of county. — When the county commissioners of any county in the state arc petitioned by at least fifty freeholders who arc citizens of the county, to purchase any or all of the toll roads, or parts of toll-roads within their county, they must make an entry to that effect in their journal, and submit the question of such pur- chase to the voters of said county, either before or after an appraise- ment of the value of the roads has been had, at any regular spring or fall election, giving at least ten days' notice thereof, in at least two newspapers published in the county. At such election, the voters who are in favor of such purchase must inscribe on their bal- lots, "Purchase of toll-roads, Yes;" and those opposed thereto must inscribe on the ballots " Purchase of toll-roads, No ; " and if at any such election a majority of those voting on said questions are in favor of such purchase, the said commissioners must make such purchase, but not otherwise. The vote on said question must be re- turned by the judges of the election to the clerk of the court of common pleas, who must open, count, and declare the same, as iu election for county officers, and certify the same to the county com- missioners. 1 For forms, etc., readily adapted to such election, see paragraphs 43 to 61 of chapter 6. 178. How road appraised for sale and when sale may be made. — In any county where, heretofore or hereafter, an affirmative vote has been or may be given at any general election, in favor of purchasing any or all of the toll-roads, or parts thereof, lying within such county, at a price to be fixed by three 1 \ 3498a. 77 O. L. 83. This is believed to be the meaning of that section, which, however, reads as follows : "g 3498a. The county commissioners of any county in the state, when petitioned to do so by at least fifty freeholders, citizens of the counties, shall and they are hereby authorized and required to purchase any or all of the toll-roads, or parts of toll-roads, within said counties, as hereinafter pro- vided; provided, however, that before such purchase is made, the com mis- sioners of tbe county in which the people shall vote in favor of purchasing the toll-roads, shall make an order to that effect on their journals, and sub- mit the purchase to the voters of said county either before or," [etc., the rest being substantially as given above, except that " may make such purchase" is changed io "must make such purchase."] 326 ROAD LAWS OF OHIO. [CHAP. 11, 179-181 disinterested appraisers, such appraisers must be appointed as follows : one by the court of common pleas of the county, or a judge of said court resident of the subdivision in which the county is si Unite, one by the probate judge of the county, and one by the commissioners of the company. Said appraisers, after being sworn faithfully and honestly to discharge their duties in that behalf, must personally inspect the road or roads, or parts thereof, so far as the same may be within such county, and make and return, in writing, to the commissioners, a valuation of each of the roads or parts thereof. If the commissioners, from any cause, fail to purchase any road, or part thereof, other appraisers may be appointed in the same manner. But nothing herein contained can prevent the commis- sioners from making or receiving propositions, and to purchase at any time within two years after an appraisement has been had at the appraised price ; any law heretofore passed to the contrary not- withstanding. 1 179. For adaptable forms of appointment of appraisers, their oath, report, etc., see paragraphs 147-153 of this chapter, and chap- ter 9. ISO. Tlie purchase by the commissioners, and effect tftereof. — If the report is satisfactory, and the commissioners, or a ma- jority of them, indorse their approval thereon as to all or any of the roads, or part thereof, they must cause an entry to be made to that effect on their journal ; and thereupon they may purchase such roads or parts thereof at a price not exceeding such appraisal, and pay such company or companies in money, or in bonds to be issued as hereinafter specified. Thereupon such roads, or parts thereof, so purchased, will cease to be toll-roads, and become free roads, to be kept in repair in the manner prescribed in chapter 10 of this volume. 2 181. Bonds for purchase and the tax for their redemption. — For the purpose of paying fur such roads, or parts thereof, the commissioners must issue bonds payable at such times, and in such amounts as will be as near as practicable equal to the semi-an- 1 &3499, a. amended, 78 O. L. 149. - §3500. The levying of taxes by the county commissioners, under the statute for the purchase of toll-roads, in order to make them free to the pub- lic, is a constitutional exercise of the taxing power. So also is the levying of a tax to refund assessments as provided for in section 3501 of the lie- vised Statutes. Warder v. Commissioners, 38 O. S. 639. CHAP. 11, 182.] TURNPIKE AND PLANK-ROAD COMPANIES. 327 nual collection of taxes levied for that purpose. These bonds must bear interest at a rate not exceeding six per centum, payable semi- annually, and may be delivered to such companies in payment for such roads, or parts thereof, or sold for money at not less than their par value ; but they must not run more than eight years from date. For their payment the commissioners must levy, annually, on all the taxable property of such counties, in addition to the taxes they are otherwise authorized to levy, such sum as will fully pay such bonds and the interest thereon. 1 For form of bond readily adaptable, see paragraphs 174-182 of chapter 8. 182. Assessments for Gowtructmn of free turnpikes may be refunded. An act passed April 15, 1881, provides: "That the commissioners of the counties are hereby authorized and directed to refund to all persons residents of their respective counties, who have paid, or may be required to pay, any assessment for the construction of any free turnpike-road, or roads, under the act of March 29, 1867, or the acts amendatory thereof, or supplementary thereto, which road has not been converted into a toll-road, for the purp >se of adjusting this refunding of assessments, the auditors of such counties shall pre- pare a book of such assessments paid in the counties, in which shall be noted all amounts so refunded ; and in no instance shall the amount so refunded exceed the amount they have paid or may be required to pay, toward the purchase of toll-roads, or parts of toll-roads, in their respective counties; provided, that all persons who shall demand or ac- cept the refunding of the assessments paid by them, or any part thereof, shall thereby release all right to have the road or roads, to the construction of which they have contributed, to be converted into toll- road or roads; and in any attempt to convert such road or roads into toll-roads, the names of such persons and the assessments by them contributed shall be counted against the conversion of such road or roads, or parts thereof, into toll-roads; and for the purpose of refunding such assessments the commissioners are authorized to issue bonds in such amounts as will be necessary, which bonds may run not to exceed eight years, and bear not to exceed six per cent interest, payable semi-annually ; for the payment of such bonds the commissioners are required to levy on all the taxable property of the county such sum, annually, as will fully pay said b aids and 1 \ 3501, as amended, 78 O. L. 149. See note to preceding ^eetioii. 328 ROAD LAWS OF OHIO. [chap. 11, 183-185 the interest thereon, in addition to the taxes they are otherwise au- thorized to levy." 1 183. Fees of appraisers and county officers. — The appraisers men- tioned in paragraph 178 must be paid by the county, upon the allow- ance of the commissioners, three dollars per day, and their neces- sary expenses for the time actually employed in the business of their appointment; and the county auditor and county treasurer, for their services under the preceding paragraph, will be entitled to one- half of the lowest rate of fees now allowed to them by law for like services. 2 184. Sale of road in one county does not affect portion of road in an- other. — The sale by any company owning a toll-road, or such part of such road as lies within any county, will not affect its organiza- tion or right as to such part or parts of its road as may be situate outside of such county. 3 185. Transfer not to affect creditors. — No relinquishment, sale, or x § 3501a, as enacted, 78 O. L. 149. If the first part of that section means any thing, its meaning is very ob- scure. It takes the place of the concluding part of the original $ 3501, found in the Revised Statutes, which part followed what is now \ 3-301 (par. 181, above), and be<;an as follows : " Provided, however, that all persons resident of such counties who have paid or may pay any as-essment for the construc- tion of any roads under the act of March 29, 1867, or the act* amendatory thereof, which road has not been converted into a toll-road, and who are re- quired to pay the tax levied for such purpose, or any part thereof, shall be entitled to have repaid to them, out of any tax they are required to pay for such purchase, the amount of such assessment so paid by them, which repay- ment shall in no instance exceed the amount of such tax they may have so paid, and for the purpose of adjusting this refunding of taxes, the auditors of such counties shall prepare a book of all such assessments paid in the counties, in which shall he noted all amounts so refunded; and in no instance shall a greater amount he refunded to any person than the assessment paid by him, and no tax shall be relunded but on the order of the auditor." Taking the old law to aid in interpreting the new, the meaning seems to be that if any person has been assessed to help build an improved in ad under chapter 8 , why chapter 8 only '.' |, and he must also pay taxes lor bonds under par.l81,tfAera the assessments he has so paid must be relunded to him out of the taxes In- must so pay, as far as said taxes will reach. If this tax be greater than the assessment, then he is to get back the amount of his as- sessment, and the county keeps the rest. 3502. 3 g 3503. CHAP. 11, 186-189.] TURNPIKE AND PLANK-ROAD COMPANIES. 329 transfer herein provided for will prejudice or affect, in any way, the claim of any creditor of the company which makes the same ; nor do the provisions of the four preceding paragraphs extend or apply to any road in which the state is interested as a stockholder. 1 186. Sale of bridge or road to city or village. -A company, any part of whose road or bridge is, or hereafter becomes, embraced within the corporate limits of a city or village, may contract with the proper authorities of such city or village, or of the township or county in which the same is situate, for the disposal, release, and abandonment of such part of its road or bridge, for such compensa- tion and upon such terms as may be agreed upon between the com- pany and such authorities. Any such contract heretofore made is as good and valid as if made under this paragraph 2 See also para- graph 58. 187. Purchase of road by county, in other ways.— In addition to the purchases provided for above, and in chapter 9, the county commissioners may proceed to convert any turnpike-road into a free road, in accordance with the provisions of chapter 8. 3 Subdivision 4. Concerning mortgage of road and of its sale on execution. 188. Foreclosure of mortgages on roads.— When a company exe- cutes a mortgage upon its road, or any part of it, the mortgagee, or the assignee thereof, may, at any time after the money secured by the mortgage becomes due, foreclose the mortgage in the same man- ner as if it were upon real estate, ami the sale so made will be held to pass to the purchaser the corporate franchises of such company as fully a- the mortgagor held the same at the time of executing the mortgage. The laws relating to the foreclosure of mortgages upon rea ] estate are applicable to the foreclosure of mortgages upon turn- pikes or plank-roads. 4 189. Appraisers; the purchaser takes the franchises.— -In such pro- ceeding, the court must appoint the appraisers; and when the road runs into or through more than one county, the court may order it to be appraised and sold entire, or in parcels, as may seem e&pedi - - 3 3492 l §3504. Zl' » See par. 252 of chapter 8. *g3493. 330 ROAD LAWS OF OHIO. [CHAP. 11, 190-195 ent to the court. The purchaser of any such road, or any part of it, will be entitled to exercise all the corporate franchises purchased as fully as they belonged to such company before such sale, in any name that may be assumed by such purchaser. 1 190. Roads may be sold on execution. — All turnpikes and plank- roads under the control of individuals or corporations, and held as property or as a franchise, are liable to sale upon execution, in the same manner as other property. 2 191. The levy and appraisement. — All such property must be levied upon, appraised, and sold as real estate is appraised and sold ; and the appraisement must be made with reference to the value thereof for the purposes for which it is or may be used, and must include the value of the franchise therewith connected. 3 11)2. W.ien an order for appraisement may be made. — -When any such propt-rty is levied upon and not appraised, and when portions of such property are situate in two or more counties, the court in which the judgment was rendered may, upon application of the creditor, order it to be appraised, appoint appraisers, and have it sold entire, or in such parcels as the court may deem most advan- tageous to the debtor; but if no such application be made the sheriff must proceed as in other cases.* 193. The purcliaser takes the franchise. —The purchaser of any such road will, upon the confirmation of the sale, be entitled to hold and exercise all the corporate franchises purchased at such sale, as fully as they were held and exercised by the debtor before such sale, in any name assumed by the purchaser. 5 194. Transcript to be filed with secretary of state. — Upon the filing with the secretary of state of a duly attested copy of the sale, con- firmation, and conveyance of any franchise as herein provided for, such transfer must be recorded in the same manner that original articles of incorporation are recorded ; and thereupon the franchise will vest absolutely in the purchaser, in the same manner as fran- chises vest in original corporators upon the recording of the certifi- cate of incorporation. 6 l!)o. When right to take toll maybe sold on execidion. — When a judgment has been heretofore or is hereafter rendered against any i ^ :un4. • I 3330. s §3531. 4 3532. a 23533. *i 3534. CHAP. 11, 196-199.] TURNPIKE AND PLANK-ROAD COMPANIES. 331 turnpike, plank-road, or bridge company, and remains unsatisfied for ten days after the rendition thereof, execution may issue thereon against the goods and chattels of the company, which must he lev- ied upon and sold as in other cases; if sufficient goods and chattels can not be found to satisfy such execution, the officer holding the same may, if the judgment creditor so direct, levy upon the right of the company to take toll at any of its gates within the jurisdic- tion of the officer, which right the officer must advertise and sell as personal property; and the person who will pay the amount due upon the execution for the right of using such gate or gates, and of taking toll at the same, for the shortest time, will be the purchaser; but nothing herein contained is to be so construed as to deprive the company of the same right to give bail for stay of execution, within the same time after the rendition of a judgment that an individual might have. 1 196. Certificate of such sale and its effect. — The officer who makes sale of the right to take toll at any gate as aforesaid must give to the purchaser a certificate thereof. Such certificate will be sufficient to authorize him to take possession of such gate, and to hold it during the time for which the same was sold. The purchaser will have the full right to demand and receive the same tolls of and from all passengers passing through such gate as have been estab- lished and posted up by such company according to law; and during the possession thereof the purchaser, or his agent, must con- form to all rules, regulations, and contracts of the company, in the same manner as required of the gatherers of toll of the company, except that he will hold for his own use all tolls collected at such gate for and during the time for which he purchased the same, and must keep such part of the road in as good repair, so long as he holds the same under such contract, as when possession was taken thereof, ordinary wear and travel excepted.' 2 197-199. Form of such certificate. I hereby certify that on , 18 — , I sold to [state whom~\. by virtue of an execution, incase No. , in the \_natnethe courQ, in which was plaintiff, and the 11. and S. Turnpike-road Company was defendant, the 1 £ 3535. See par. 65 of chapter '.), and note thereto. 2 \ 3536. See par. 65 of chapter ( J, and note thereto. 332 ROAD LAWS OF OHIO. [CHAF. 11, 200-202 right to take toll on [state what gates] of said road for the period of [state how hng~\. Witness my hand and seal, this day of , 18 — . [Signed by proper officer.] Subdivision 5. HOW CERTAIN FREE IMPROVED ROADS MAY BB CONVERTED INTO TOLL-ROADS UNDER THIS CHAPTER. 200. Those assessed for improved roads may become incorporated. When amajority of the land-holders whose lands have been or hereafter may be assessed to construct a road by virtue of proceedings had under the act of March 29, 1867, and the acts supplementary thereto and amendatory thereof (now chapter 8), desire to incor- porate themselves into a turnpike company, they may proceed in the manner provided in the chapter of the Revised Statutes relating to the creation of corporations (see note 2 to paragraph 1, above); but in their articles of incorporation they must also state that the road has already been constructed under and by virtue of said act. The amount of capital stock of the company will be, as near as the same can be arrived at, the amount expended in the construction of the road. There must be annexed to the articles of incorporation a petition, asking for the incorporation of the persons named in the articles of incorporation, for the purposes therein named, which pe- tition must be signed by a majority of the land-holders whose lauds have been taxed for the making of the improvement, accompanied by a certificate of the auditor of the county in which the road is located to the effect that the petition contains the signatures of a majority of the land-holders whose lauds have been so taxed. 1 201. Who to be stockholders. — No stock books are to be opened, and no subscriptions received to the stock of such company. 1 The audi- tor of the county in which any road is located must, on demand, furnish to the corporators a certified list of the land-holders whose lands have been taxed for the construction or improvement of the road ; and at the first election of directors and officers of the com- pany each person whose lands have been so assessed will be entitled to one vote, and no more.* 202. Certificates of stock to be issued.— After the company is or- g8520. ■ I 3521. CHAP. 11, 203-20G.] TURNPIKE AND PLANK-POAD COMPANIES. 333 ganized, its president and secretary must issue certificates of stock to each land-holder, for the number of shares of the stock, of the sum which .nay be designated by the directors, and fractions of a share, as will amount to the sum assessed upon Ins lands and which he has already paid for making the improvement; and they must also from time to time, alter the assessment on each land-holder each year is paid, issue like certificates for the amount of the assessments so paid. 1 , 203. Other stockholders.— But any person whose lands have been assessed, ami whose assessments have been paid, may, at any time after the organization of the company, become a stockholder therein by producing and exhibiting to the secretary of the company the certificate of the auditor aud treasurer of the county, showing the amount of the assessment on the lands of such person for the im- provement, and that the same has been paid, and thereupon the president and secretary must issue certificates of stock to him for the amount so paid. 1 204. Powers of such companies.— A company so incorporated will have the same powers and he subject to the same liabilities another turnpike companies incorporated under the laws of the state. 2 205. When such company may increase capital stock.— A company organized as provided in paragraph 200 may, with the assent of the holders of a majority of its stock, and the consent of the county commissioners, increase its capital stock to such an amount as may be deemed necessary to extend its road or to build a branch road, not exceeding five miles in length, to form a connection with any other similarly improved road in au adjoining county or state. 3 206. Proceedings for such purpose.— For the purpose of increasing the capital stock of the company for the objects heretofore stated, books may be opened for subscriptions, under the direction and at the office of the auditor of the county in which the company is located, upon giving thirty days' previous notice in some newspaper published and of general circulation in the county ; and all persons, whether original stockholders or otherwise, may become subscribers to the capital stock of the company ; but the aggregate of such sub- scriptions must not exceed the amount necessary to construct or build such road or branch.* 1 1 3522. '§3523. 3 I 3524. * 2 3525. 334 ROAD LAWS OP OHIO. [CHAP. 11, 206 If a company so organized refuse its assent to such extension, or to the construction of such branch road, for the purposes stated, or refuse, by the vote of the holders of a majority of its stock, to in- crease its capital stock for such purposes, a stock company may be organized under the chapter of the Revised Statutes relating to the creation of corporations (see note 2 to paragraph 1, above), which may build such extension or branch, and erect toll-gates, as provided in this chapter. 1 1 3525. CHAP. 12, 1-3.] BRIDGES AND CULVERTS. 335 CHAPTER XII. BRIDGES AND CULVERTS. 1. Although the statutory provisions, specifications, and other matter brought together into this chapter may be useful or conven- ient to various public officers and others, it is not expected to make unnecessary the services of a competent engineer, who should be consulted in all cases of bridge or culvert work of any importance. No chapter, nor can any one work, supply the technical knowledge such an engineer must have, and of which the public should have the benefit. 2. What bridges the county commissioners must build and repair. The commissioners must construct and keep in repair all necessary bridges over streams and public canals on all state and county roads, free turnpikes, improved roads, and abandoned turnpikes and plank- roads, in common public use, except only in such cities and villages as, bylaw, have the right to demand and receive part of the bridge fund levied upon property within the same.' 3. The commissioners of the several counties must build and keep in repair, in the manner prescribed by law, all necessary bridges in villages and cities not having the right to demand and receive any ' portion of the bridge fund levied upon property within such cor- porations, on all state and county roads, free turnpikes, improved roads, transferred and abandoned turnpikes and plank-roads, which igSGO. See also paragraph 41, chapter 9; paragraph 114, chapter 10; chapter 13, paragraph 156, below. Also, notes on pages 693-708. While congress may, in the assertion of its power under the constitution to regulate commerce among the states, exercise control over the navigable waters within this state, so far as to protect and improve their free naviga- tion, yet while this power remains dormant and uneffectuated by legislation, the state has plenary authority over bridges across them, and there is nothing in the ordinance of 1787 that precludes her from exercising such authority. Comm'rs v. Board P. W., 39 0. S. 628. 336 ROAD LAWS OF OHIO. [CHAP. 12, 4-9 are of general and public utility, ruuniug into or through any such village or city. 1 4. Township trustees, ditto. — But the trustees of the several town- ships must cause to be built and kept in repair all bridges and cul- verts, except upon improved and free turnpike-roads, where the cost of construction does not exceed fifty dollars; and they are au- thorized to levy a tax for the payment of the same. 2 They may cause foot bridges to be built. 3 5. Tax levy for bridge fund. — Such levy must be made by the county commissioners, as is more fully set forth in paragraph 124, and note thereto, in chapter 5. 4 6. Joint county and railroad bridges. — The commissioners of any county may contract with any railroad company for the construction, use, and maintenance of wagon tracts in connection with railroad bridges. 6 7. Drift against all bridges except toll and toll-road bridges must be removed by the road supervisor or pike superintendent, as the case mav require. 6 Further provision as to the protection of bridges against drift is made in chapter 15. 8. Who muA build approaches to bridge. — The commissioners of any county must construct, without unnecessary delay, and must keep in repair, good and sufficient approaches or ways to bridges which have been or may hereafter be erected by them. The must con- tract for their construction in the same manner as is provided by law for contracting for the erection of bridges by county commis- sioners. The cost of constructing such approaches or ways must be paid from the bridge fund of the county, on the order of the com- missioners. 7 9. But when the cost of the construction or repair of the ap- proaches or way to any such bridge does not exceed fifty dollar--, such construction or repair must be done by the township trustei - s 1 \ 4938. 2 1 4910. ^.S.-u further, paragraph 50, chapter 5; also paragraph 122, chapter 5. 1 \ 4938. The application of this paragraph is limited in Defiance < See 80 O. L. 21, 58. See notes, pp. 695, 704. 5 2 4939. "Tracts" in this paragraph, is evidently an error for "tracks." 6 S<'<. further, paragraph 47, chapter 5, and paragraphs 39, 40, 125, chapter 10. See also chapter 15. » 22 861, 4940. 8 2 801. CHAP. 12, 10-12.] BRIDGES AND CULVERTS. 337 10. Bridges near county line and repair of.— When it becomes necessary for the public convenience, to bridge any stream of water which is on or near the lines of two or more counties, which coun- ties are traversed by, or lie on or near the road or roads on which such bridge is needed, the commissioners of such counties interested, may build, or authorize the building of, such bridge, jointly, to be paid for, with the approaches thereto, in proportion as the commis- sioners agree ; and the expense of keeping such bridge in repair must be paid by the counties interested, in the same proportion as the expense of building such bridge was paid by said counties. 1 1 1 . Bridges over canals—The commissioners of any county through which any canal or feeder of a canal of this state passes, except such as are built by incorporated companies, must, at the cost of such county, keep in good repair all bridges, where any state or county road crosses such canals. 2 12." When a new road or public highway is laid out so as to cross the line of any permanently located and established canal or navi- gable feeder, any new bridge required on such road, over such canal or feeder, must be constructed and forever maintained at the ex- pense of the county in which such bridge is situated. But no such bridge can be built without first obtaining, for the model and loca- tion thereof, the consent, in writing, of one of the acting commis- sioners, or the principal engineer of said canal ; and if any person undertakes to construct or locate such bridge, withoutsuch consent, and proceeds so far as to place any materials for that purpose on 1 1 862. If a bridge, on or near the line of two counties, be built by one of the coun- ties without the concurrence of the other, no right of action for contribu- tion arises in favor of the county expending the money. Lake Co. v. Ash- tabula Co., 24 Ohio St. 393. Under the act of March 30, 1877 (74 0. L. 424), the commissioners of Ham- ilton and Clermont counties are to erect a bridge to be paid for in specified proportions, but the act doe. not provide that a tax must be levied in the first instance, but only to replace the cost, the county commissioners having averred that they have not refused to build the bridge, and the act not de- fining the time, a mandamus to compel the levy of the tax three months after Uie passage of the act is premature. [Ham. Dist. Ct., 1877.] State ex rel. (Bush.) v. Hamilton Co., 2 Bull. 156. 338 KOAD LAWS OF OHIO. [CHAP. 12, 13-16 either bank or on the bottom of the canal, he will be subject to a penalty of fifty dollars therefor; and either of said commissioners or engineer is authorized to remove all such materials as soon as discovered, wholly without the banks of the canal. 1 13. Swing bridges over same. — "When it is deemed necessary to construct a bridge upon any street, road, or public highway, across any of the canals or feeder of the canals in this state, in any city or village, the council of such city or village, or the commissioners of the county in which such city or village is situate, and having law- ful authority to construct or erect a bridge on such road, street, or public highway, where it crosses any such canal, or feeder of the canal, may erect and maintain, for public use, a swing bridge, or self-closing bridge, upon any such street, road, or public highway, at such place ; but no such bridge can be so constructed or erected without first obtaining, tor the model and location thereof, the con- sent, in writing, of the board of public works. 2 Application for such consent may be directed to " The Board of Public Works, Co- lumbus. Ohio," where their office is. 3 14. Commissioners may establish ferry if bridge gone. — When any county bridge has been destroyed by fire, flood or any other cause, the county commissioners may, if in their opinion the public good requires it, establish, or cause to be established, a free ferry in lieu of such bridge; but the cost of maintaining such free ferry must not, in any case, exceed the interest on the probable cost of con- structing a bridge across the stream. 4 15. Kind of; who decides as to.— When it becomes necessary to erect a bridge, the county commissioners must determine its length and width, and whether it shall be of single or double track." 16. Petitions and remonstrances must be heard.— Before the county commissioners erect any bridge, the expeuse of which exceeds one thousand dollars, they must publish and circulate hand-bills, and publish in one or more newspapers of the county, notice of their in- tention to erect such bridge, and its location, for at least four con- secutive weeks prior to the time that such building or location is '>, 7770. 2 ? 4937. 3 See g 7056. * $ 4924. 5 § 796. CHAP. 12, 17-27.] BRIDGES A> D CULVERTS. 339 marie ; and they must hear all petitions for, aud remonstrances against, such proposed location or improvement. 1 17-21. The petition may be in form as follows: To the board of county commissioners of county, Ohio : We the undersigned citizens [or tax-payers, etc.'], of said county, re- spectfully* petition your honorable body to build a [state what kind, e'c] bridge over the [state what creek, road, etc ], at . [Signatures.'] 22-24. The remonstrance may follow the foregoing form to the *, and then add : Remonstrate against the erection of the bridge petitioned for by , over the , at [or otherwise specify the bridge]. [Signatures.] 25. Hearing of. — If such petitions or remonstrances are filed, the commissioners may set a day for their hearing. 26. Ten thousand dollar bridge mast be voted for.— The county com- missioners can not levy any tax, or appropriate any money, for the purpose of building any bridge, except in case of casualty, the ex- penses of which will exceed ten thousand dollars, without first sub- mitting to the voters of the county, the question as to the policy of such building, which submission must be made at the annual spring or fall election, next after the proposition for such levy is adopted by the commissioners and placed on their record.' 2 For conduct of elec- tion, see note below. 27. No bridge, if vote be negative.— I? the majority of the votes so cast be against the policy of such improvements, the commissioners can not assess any tax for that purpose. 2 ig 877. It is probable that advertising for proposals for such bridge for the proper length of time would be construed to be a compliance with the law, as to publishing in newspapers. 2 \ 2825. Sec also paragraphs 33, 84. This section does not apply to the construction of any bridges commenced or contracted for prior to the passage of this law, or for which the commis- sioners have, in good faith, purchased the ground, or acquired materials for the same, and were then proceeding to construct. § 2825. Conduct of such election.— Each proposition must be separately submitted, and printed tickets mn-t be provided by the commissioners, on which must be printed, " For tax, yes;" and "for tax, no;" which blank must 340 ROAD LAWS OF OHIO. [chap. 12, 28-29 28. On petition of tax-payers, may again submit the question. — But the commissioners may, on the petition of not less than one hundred tax-payers of said county, again submit the same question at any regular aunual spring or fall election, under the same rules and reg- ulations as before provided. If at any such election, a majority shall be found in favor of the bridge, then the commissioners will be authorized to levy the tax. 1 29. Borroiving money for building, etc., bridge; bonds therefor. The commissioners, for the purpose of erecting, repairing, improv- ing, enlarging, or rebuilding any bridge, may borrow such sum or sums of money as they deem necessary, at a rate of interest not to exceed six per cent per annum, and issue the bonds of the county to secure the payment of the principal and interest thereof. Such interest must be paid semi-annually, at the county treasury, and the principal must be paid at such treasury, at such times as the commissioners prescribe, within seven years from the date of such indebtedness ; the interest on all the bonds issued for any of said purposes, must become due and payable at the same time, and the first payment of interest on any such bond must be for such portion of the six months as has elapsed between the date of its issue and the time specified therein for the first-payment of interest thereafter. be filled with a proper designation of the proposed improvement, as the no- tice may require; and said commissioners must cause the same notice for such vote to be given as is required in the election for state and county officers. It will be the duty of the judges of election in the several town- ships and wards in any county in which such questions may bo submitted, on the day of said election, to open a poll for taking said vote, and to receive and count the ballots cast on each of such propositions, and within three days thereafter to return to the auditor of the county a full and correct ab- stract of said votes. The said judges of election must, in all respects, be governed by the laws regulating general elections, and be entitled to the same compensation for returning said poll-books, which must be paid out of the county treasury on the order of the auditor; and the poll-books so re- turned must, within the days from the time of holding such election, be opened, and the votes counted by the commissioners and auditor of the county; a correct statement of the result of which votes must be kept by said auditor on tile in his office for public inspection. \ 2825. For somewhat similar elections and forms see paragraphs 43-G1 of chap- ter 6. See note 2, preceding page. CHAP. 12, 30-31.] BRIDGES AND CULVERTS. 341 The Ihhi.Is so issued must be signed by the commissioners or any two of them, and countersigned by the auditor, with or without cou- pons attached, in sums not less than fifty nor more than one thou- sand dollars each, payable to bearer at the county treasury, with in- terest, as aforesaid, at such times, not exceeding seven years aftei date, as the commissioners prescribe, and such bonds must speedy distinctly the object for which they were issued. 1 30. Taxes levied/or same.— The commissioners must, annually, at their June session,' levy such amount of taxes as will pay the inter- est on such indebtedness, and at least one-seventh of the principal ; and if the commissioners refuse or neglect to levy such tax regu- larly, the county auditor must levy it upon the taxable property of the county, and place it upon the tax list. All the taxes so levied and collected must be applied to paying said debt, and to no other object. 2 31. As to plans and specifications for.— The commissioners may, but are not required to, prepare, or cause to be prepared, plans, de- scriptions and specifications for a bridge as determined upon, as provided in paragraph 15, above, which must be kept on file in the auditor's office for inspection by bidders and all persons interested , and may invite bids or proposals in accordance with t he same ; but they ig§ 871, 872. All bonds issued must bo correctly numbered in the order in which they are issued, and registered by the county auditor in a book by him to be pro- vided and kept in^his office, and all warrants drawn upon the treasurer for the payment of the principal and interest on such bonds must specify the fund on which they are drawn; and the auditor must, upon delivering to the holder of any such bond a warrant upon the treasurer forthe redemption of the same, receive such bond and forthwith write across the face of the same, in red ink, the word, "Eedeemed," with the proper date, and sign his name thereto; the treasurer, upon receiving such warrant, which contains the number of the bond for the redemption of which the same is drawn, must go forthwith to the auditors office and ( there, in the presence of the auditor, write in red ink across the registry of such bond the word « Re- deem sd " with the proper date, and sign his name thereto, when the auditor must deliver to him the original bond, for which he shall be ere lited in his semi-annual settlements with the auditor and commissioners, § 875. See paragraphs 9-17, chapter 22, as to sale of bonds, and paragraphs 17 1 L82, chapter 8, for a form of bond adaptable to this case. * gg 873, 874. 342 ROAD LAWS OF OHIO. [chap. 12, 32-34 must also invite, receive, and consider proposals on any other plan, at the option of bidders, and must require that all proposals on such other plan be accompanied with plans and specifications showing and setting forth the number of spans, the length of each, the nature, quality, and size of the materials to be used in the erection of such bridge, the strength of the structure when completed, and the separate cost of base and superstructure when any proposal in- cludes both, and also whether there is any patent right on the pro- posed plan, or on any, and if any, what part of it. 1 32. The plan of the bridge generally requires drawings for its ex- planation, which drawings should, and generally must be, made and properly described and explained by a competent engineer. The specifications may be prepared by such engineer or other competent person. Specimens of specifications, notices, contracts, etc., for masonry, superstructure, etc., of iron, wooden, stone, arched, box etc., bridges, culverts, etc., are given in various places following the appropriate text, but especially in paragraphs 157-258, below, which may be adopted as given, or changed by omitting therefrom or add- ing thereto, as the circumstances require. 33. Not applicable when. — The provisions of the next paragraph do not apply to the erection of bridges and other structures of a less cost than ten thousand dollars. 2 34. When separate bat* required for contract work, contract must go to lowest and best bidder. — When any board of commissioners, board of trustees, officers, or board of directors of any road district of the state, or auy other authority, who are now or at any time shall be authorized to contract or engage for the erection, repair, alteration, or rebuilding of any bridge, culvert, or other public improvement [to cost, $10,000 or more], and who are now or hereafter may be required by law to advertise for and receive proposals for the fur- nishing of materials and doing the work necessary for the erection of the same, such board, or other authority, must require separate and distinct proposals to be made for furnishing the materials or doing the work, or both, in their or his discretion, for each separate and distinct trade or kind of mechanical labor, employment, or busi- ness necessary to be used in making such public improvement; and in no case where more than one such trade or kind of mechanical 1 \ 796. 2 § 794. See also pars. 26-28. CHAP. 12, 35-36.] BRIDGES AND CULVERTS. 343 labor, employment, or business is required to furnish the materials for and do any such work, can any bid for the whole of the job, or any greater portion thereof than is embraced in one trade or kind of mechauical labor, employment, or business, be received or con- sidered by any such board or authority, in making the award of the c >n tract or contracts for the same, unless the separate bids do not cover all the work and materials required, or the bids for the whole, or tor two or more kinds of work or materials, are lower than the separate bids in the aggregate, iu all cases the contracts for the doing of the work belonging to each separate trade, or kind of me- chanical labor, employment, or business, or the furnishing of the materials for the same, or both, at the discretion of said board, or other authority, be awarded to the lowest and best separate bidder therefor; and a contract for the same must, in all cases, be made di- rectly with him or them by said board, or other authority, in the same manner and upon the same terms, conditions, and limitations, as to giving bond with security and otherwise, as are now prescribed by law, unless the same is let as a whole, or to bidders for more than one kind of work or materials, as aforesaid. 1 35. Advertisement for proposals. — After such plans, descriptions, bills of material, specifications, and estimates, are made and ap- proved as required by this chapter, the county auditor mnst give public notice (for the commissioners), in two of the principal papers published in the county having the largest circulation therein, and also by hand-bills (but if there is only one paper published in such county, then it must be published in such paper), of the time and place when and where sealed proposals will be received for perform- ing the labor and furnishing the materials necessary to the erection of any bridge, or any addition to, alteration or improvement thereof, and a contract or contracts based on such sealed proposals will be made. This notice must be published weekly four consecutive wicks, next preceding the day named for the making of such con- tract or contracts, and must state when and where such plan or plans, descriptions, bills, and specifications can be seen. 2 36. In their advertisement for proposals the commissioners must invite bidders to make the same for furnishing all the materials and performing all the work, or for such parts thereof as bidders may 1 1 794. See also pars. 20-28. *g 798. 344 ROAD LAWS OF OHIO. [chap. 12, 37-47 see proper, and must state the time and place when and where bids will be opened and the contract or contracts awarded. 1 37. When notice not required. — But when the cost of a bridge will not exceed one thousand dollars, the commissioners may, if they believe that the interest of the public will be the best subserved thereby, cause such bridge to be built by private contract, without publication. 2 38-45. Form of notice. NOTICE TO BKIDUE-BIILDERS. County auditor's office of county, Ohio, , 18 — . Sealed proposals will be received at the office of the county com- missioners of said county until (e.g. Wednesday, July 16, 18 — , at 12 o'clock m.) for * a wooden \_or, an iron! superstructure over D. Creek, on the road from R. to N., in C. township, in said county; to con-ist of one span of seventy (70) feet, with clear roadway twenty feet \_adJ, if desired, also, the masonry aud approaches to said bridge, or make separate notice of this, as in next form~\, to be built according to plans and specifications on file in said county commissioner's office. [If an iron bridge, the following may be a J ded: Bidders must furnish a clearly made out strain-sheet of their design, with the data on which it was computed, and showing also the areas of material proposed to be given to each part.] [Add, if so: Proposals are also invited for doing said work according to plans to be furnished by the bidder, which plans must be accompa- nied with suitable drawings and specifications showing and setting forth, and finish as designated in paragraph 31, or as required in paragraph 34, above, or as circumstances require^. [Ad! also, if desired, bidders are requested to be present on the above occasion, when all the proposals will be opened and read in their presence.] Contractors will be required to give approved security for the per- formance of their contracts. The commissioners reserve the right to reject any and all bids. By order of the county commissioners, W C , County Auditor. 46—47. Form of notice for masonry and filling only. KOTICE TO CONTRACTORS. \w the foregoing to the * then add']: The masonry and approaches to a bridge over D. Creek, on the road from 1!. to M., in C. town- ship, in said county, to be built according to plans and specifications now on file in said county commissioner's office. i g 796. 2 1 "98. CHAP. 12, 48-63.] BRIDGES AND CULVERTS. 345 The commissioners reserve the right to reject any or all bids. By order of the board of county commissioners W. O, County Auditor. 48-55. Form of notice for numerous less important matters. NOTICE TO STONE MASONS AND BRIDGE BUILDERS. Auditor's office, county, Ohio, , 18 — . Notice is hereby given that tbe county commissioners of county, Ohio, will offer for sale at public outcry, the following work at the times and places mentioned below, to wit: On Friday, May 5, IS — , at one o'clock p. m., one stone culvert in the village of ; also on the same day at two o'clock p. m., one stone culvert near the residence of , in township. Also Saturday, May 6, IS — , at one o'clock p. m., one stone culvert in township, near the late residence of , deceased. Also Monday, May S, 18 — , at ten o'clock a. m., two stone abutments near the R. R. Station, township. Also, on same day, at two o'clocdt p. m , stone abutment near the residence of , at , in township. Also on Tuesday, May 9, 18 — , at ten o'clock a. m., two stone abut- ments and wooden bridge, near the residence of , in township. Contractors will be required to give approved security for the per- formance of their contracts, and must do the work in accordance with specifications now on file in the office of said commissioners, and which will be on the ground on the day of sale. By order of commissioners. W. C; County Auditor. 56-59. Form of jiroposals for gravel. County auditor's office, county, Ohio, , IS — . Sealed proposals will be received at the office of the county commis- sioners, at , until Saturday, August 23, IS — , at twelve o'clock m., for 1,816 perch, good, clean, screened gravel, lor use on the pike, according to specifications now on file in the commissioners' office. The commissioners reserve the right to reject any or all bids. W. C, County Auditor. 60-63. Form of notice for approach to bridge NOTICE to graders. — Notice is hereby given that the commissioners of county will offer lor sale at public outcry, the following work at , on Saturday, September 1, 18 — , at one o'clock p. m., a fill to a 346 ROAD LAWS OF OHIO. [chap. 12, 64-78 bridge one mile west of , in township, requiring about cubic yards of earth, and about cubic yards of gravel [if so']. By order of commissioners. W. C, County Auditor. 64-67. Form of specifications for stone arch bridge or culvert. [Follow the specifications for abutments and wing-walls, in subsequent para- graphs, so far as applicable ; state how high walls must be built before arch begins] breadth of span, thickness of arch, how ring stones and arch sheeting must be dressed, and add :] The ring stone and sheeting of the arch to be of stone not less than ■ inches thick on the intrados of thearch. To be dressed with three- eights of an inch joints and to be of full depth specified for thickness of arch; the joints to be at right angles to the surface of the intrados, the face of sheeting stones to be dressed to make a close joint center- ing. The ring stone and sheeting shall break joints not less than one foot. The wings to be neatly stepped with selected stone the full width of wing, and not less than ten inches thick, no stone covered by the one next above less than one foot six inches; or to be finished with a neatly capped newel at end of wing, and a coping course on wing. The parapets to be finished with a coping course of full width of parapet with a projection of six inches. Stone to be not less than inches thick. 68-73. Form of proposal. , Ohio, , 18—. To the board of county commissioners of county, Ohio: The undersigned proposes to build [state what] according to the plans and specifications relating thereto, on file in the [state what office], at the following rates: For masonry, per perch of 25 cubic feet $ " rip-rap " " " excavation, per cubic yard [and so continue, as called for by the specifications. See paragraph 88, above.] [Signed.] L. B. 74-78. A bond, which may be in form as follows, is sometimes required to follow the proposals, to prevent frivolous bidding : We, the undersigned, are held and firmly bound unto county, Ohio, in tin- sum of one thousand ($1, <)()()) dollars, for the payment of which well and truly to be made, we hereby jointly and severally bind ourselves. Signed at , this day of , a. d. 18—. CHAP. 12, 79-85.] BRIDGES AND CULVERTS. 347 The condition of this obligation is such that if the above proposal is accepted and the contract awarded to the above-named bidder, L. B., and the bidder shall, if the estimated cost of said work exceeds three hundred dollars, within five days after such award is made, enter into a contract, in the form as prescribed by the commissioners of county, Ohio; or in case the said bidder fail or refuse to perfect said contract as aforesaid, within the time limited as aforesaid, lie then shall promptly pay to the said county all the expenses it has been to in advertising for bids on said work, and also the sum of two hundred ($200) dollars, which is hereby agreed to as liquidated damages, to meet the loss of time in the engineer's office of the board of commis- sioners of said county, and shall also pay all other damages that may accrue to said county, by reason of such failure or refusal as aforesaid; or if the estimated cost of said work does not exceed the sum of three hundred dollars ($:500), and the contractor shall well and truly perform the stipulations according to the true intent ami meaning of tlie speci- fications and hid, th.-n tlds obligation to be null and void; otherwise to be of full force and value. L. B., M. A., N. R. 79-84. Form of surety's oath, as to his property and liabilities. The sureties may also each be required to make aud attach an affidavit, as follows, to this bond : State of Ohio, county of , ss. M. A., being duly sworn, deposes and says that he is a freeholder in the county of , and resides at , and that he is worth the sum of thousand dollars over and above all his debts and liabilities, in- cluding his liabilities as bail, surety, or otherwise, and over and above all his property which is exempt by law from execution. M. A. Subscribed and sworn to before me this day of , 18 — . !I. P., Notary Public, county, Olao. 85. Plans, etc., must be approved by whom, — The plans, drawings, representations, bills of material, and specification of work, and estimates of the cost thereof, in detail and in the aggregate, required in this chapter to be made, if they relate to the building of a bridge, must be submitted to the commissioners, county auditor, and county surveyor; and if approved by a majority of them, a copy thereof must be deposited with the county auditor, and be kept for the inspection and use of parties interested. 1 86. Plans, etc., must be open to inspection. — The plan or plans, de- !g 797, as amended, 77 O. L. 72. 348 ROAD LAWS OP OHIO. [chap. 12, 87-88 scriptions, bills, and specifications mentioned above must be open to public inspection at all reasonable hours between the date of such notice and the making of such contract or contracts. 1 87. Opening proposals and awarding contracts. — At the time and place advertised for opening the proposals, as mentioned in para- graph 36, above, or at a time to which the commissioners publicly adjourn the consideration of the same, they must publicly open, read, and examine such proposals as have been made, and must award the contract or contracts for the furnishing of the material for, and for the erection of such bridge, as a whole or in parts, to the person or persons who is (or are) the lowest and best responsible bidder or bidders, considering price, plan, material, and method of construc- tion, and who gives good and sufficient bond to the acceptance of the county commissioners for the faithful performance of his con- tract, in accordance with the plan or plans, descriptions, and speci- fications herein required. 2 88. The statute (§ 800) also provides that no contract shall be made for the erection of any court-house, jail, infirmary, or bridge, or for any addition to or improvement of the same, or for the labor and materials provided for in reference thereto, at a price in excess of the estimate required to be made in the chapter of the i§798, 2 g"3 790, 799. Under the act of April 27, 1809 (66 v. 52), it is not an abuse of the discretion as to the acceptance of the bond required of a bidder, to require that the sureties therein shall be residents of this state; and if a bidder refuse to furnish such sureties, they may refuse to award him the contract, although his is the lowest bid; and they may award it to the next lowest. It is their duty to award the contract to the person who offers the lowest price, and gives good and sufficient bond, if the price is within the estimates; but if the bidder includes in his bid labor or material not specified in the advertisement, and the price bid is an aggregate sum of the whole, the commissioners can regard it only as a bid for the things advertised tor, and if such aggregate is not lower than another bid which embraces only what is called for in the advertisement, the former is not entitled to have the contract awarded to him; and when they refuse to award the con- tract to lie person entitled thereto, he may compel them to do so, although they have made an unauthorized award* to other parties, provided the party entitled has done nothing to waive his rii^ht, and has used reasonable dili- gence in asserting it. Boren v. Comvn'rs of Darke Co.; Farman v. Same, 21 (>. S, 311. CHAP. 12, 89-100.] BRIDGES AND CULVERTS. 349 Revised Statutes containing that provision. 1 Thatcnapter relates to public buildings for the state and county, some section* only of it re- lating to bridges. One of its sections'- relating to state buildings only, and onother 8 relating to county buildings only (court-house, jail, etc.), not including bridges, require such estimates. But as neither of these sections, nor any other one requiring these pre- liminary estimates, includes bridges, the insertion of the word " bridges" in section 800 was probably an inadvertence, and these sections, taken together, should be so construed as to exclude bridges entirely. 4 89-100. Form of contract. This agreement, made this day of , a. d. 18 — , between the board of commissioners of county and L. B.: Witnesseth, that the said L. B. agrees to and will in a good, skillful, substantial, and work- manlike manner, and with materials sufficient and proper, of their l l 800. That chapter is chapter 1, title vi, part first. 2 g 782. 3 # 795. This section is as follows : "Sec. 795. In all cases where it becomes necessary for the commissioners of any county to erect, or cause to be erected, any court house, building for county offices, jail, or infirmary, or when it is neeessary to make any addi tion to or alteration of, any such building, such commissioners, before en- tering into any contract for the erection, alteration of, or addition to, such building, or for the supply of materials therefor, shall make, or procure some competent architect to make, a full, complete, and accurate plan or plans of such court house, jail, or infirmary, or cf any addition to, or altera- tion thereof, in all its parts, showing all the necessary details of tin- work, together with working plans suitable for the use of the mechanics or other builders during the constructing thereof, so drawn and represented as to be plain and easily understood, and also accurate billsshowing the exact amount of all the different kinds of materials to be used in the erection thereof, addi- tion thereto, or in the alteration and improvement thereef, to accompany said plan or plans, and also full and complete specifications of the work to be done, showing the manner and style in which the same will be required to be done, and giving such direction for the same as will enable any compe- tent builder to carry them out, afford to builders all needful information to enable them to understand what will be required in the construction, addi- tion to, alteration, or improvement of, any court-house, jail, or infirmary, and to make, or cause to be made, a full, accurate, and complete estimate of each item of expense, and the entire aggregate cost of such court-house, jail, or infirmary, or of any addition to, alteration, or improvement thereof, when completed." [G8 v. 20, \ 7.] *See note 2 to par. 74, chapter 4. 350 ROAD LAWS OF OHIO. [CHAP. 12, 89-100 several kinds, execute, perform, and complete all and singular the works either mentioned herein or in the specifications and plans, dated of even date herewith, and signed by the said L. B., or implied or to be reasonably inferred by and from this contract or said specifications and plans, in and about the , the said materials to be furnished and the said work to be done to the satisfaction of C. E.,or other, the engineer [cfc.] for the time being superintending according to the said specifi cations, and to the plans and drawings of the said C. E., and according to such working plans and explanatory drawings and instructions as may from time, to time be furnished by the said C. E. And the said L. B. agrees to commence the said work, and to proceed with and complete the same to the satisfaction of the said C. E. and commissioners, by the day of- , a. d. 18 — . And the said L. B. further agrees that he will not execute any extra work, or make any modifications or alterations in the work mentioned in the specifications and plans, unless nor until ordered in writing by the said C. E., countersigned by the said board; nor will he demand payment or assert any claim for the same unless such written order be produced. The said board shall be at liberty from time to time, in writing and not otherwise, to direct or order any modifications or alterations to be made in the said specifications, plans, or drawings, and in any portion or portions of the materials or work in the said specifications mentioned, and in like manner to direct and order the omission altogether of any other portion or portions of the work in said specifications mentioned, or to substitute any other work or works for and in place of such portion or portions; and such modifications, al- terations, omissions, and substitutions may be so directed and ordered to be carried out by the said board in respect to any portion of the work in said plans or drawings described, but the same or any extra work which shall be directed to be done shall not vitiate or determine this contract; that the value and amount of all such omissions as afore- said shall be deducted from the sum to be paid by this contract, and that the value and amount of all such other modifications, alterations, substitutions, or added works shall be either deducted from, allowed for, or added to the said sum, according to the particular nature and description thereof; the said C. E. shall ascertain, determine, and fix siii h respective value and amounts, and whether the same respectively shall be deducted from, allowed for, or added to the said sum to be pail by this contract, in any and all cases where the parties shall not agree in writing upon such value and amounts before the modificatii n, alteration, substitution, or added work shall be made. And said L. B. agrees that if lie shall be delayed or prevented from performing the said work at any time, by any of the other contractors CHAP. 12, 101-113.] BRIDGES AND CULVERTS. 351 or workmen on said , that he will forthwith give notice in writing to the said C. E. of such prevention or delay. If the said L. B. shall fail to proceed with said work according to this contract and the said specifications and plans, to the entire satisfaction of the said C. E., it shall he lawful for the said hoard, after three days' previous notice, signed by the auditor of the said county, to he given to the said L. B., or left at his residence or place of business, of their intention so to do, to employ any other person, by contract, day-work, or otherwise, to proceed with the said work, and to complete the same; and on the ex- piration of the said notice, the said contract shall, at the option of the said hoard, become void as to the said L. B., but without prejudice to any right of action in the said board which the said L. B. may be sub- ject unto for not proceeding with said work pursuant to this contract; and the amount then already paid to the said by the said board shall be considered to be the full value of the work executed up to the time when such notice shall have expired, and no further claim what- ever shall be made by the said L. B. for contract work or additional work which may have been done up to that time, and the materials, whether prepared or unprepared, which may be upon the premises, shall thereupon become the property of the said board without further payment for the same. And the said board agree to pay the said L. B. for the full and com- plete performance of the said work to the entire satisfaction of the said C. E., to be evidenced by his certificate, the sum of dollars and cents. And the said board further agree that they will, upon the completion of portions of the said work to the satisfaction of the said C. E., also to be evidenced by his certificate, pay ninety-five 1 per cent upon the amount of said C. E.'s certificate, and the balance upon the completion of the work upon the production of the certificate thereof as afore- said. In witness whereof, the said board of commissioners, and the said L. B. have hereunto affixed their signatures. In presence of L- M., ) Commissioners B.C. of (Witnesses are not | ) county, Ohio. really necessary.) J L. B. 101-113. Another form of contract for the stone-work. (This form has the advantage of including the specifications in it, so that the contractor has all together. For specifications, see subsequent pages.) l See par. 137. 352 i:oad laws of ohio. [chap. 12, 101-113 This agreement, made and concluded this day of , in the year of our Lord 18—, by and between , of the first, and the com- missioners of county, State of Ohio, of the second part: Witness- eth, that for and in consideration of payments hereinafter mentioned to be made and performed by the party of the second part, the said party of the first doth hereby covenant and agree to furnish all the materials, and construct, build, and finish, in a most substantial and workmanlike manner, to the satisfaction and acceptance of the com- missioners aforesaid of county, of the second part, abutments for a bridge across S. creek, on the road, near the residence of f i n township, county, Ohio, in strict conformity to the following specifications: Foundations.— When the subsoil is sufficiently compact, the abut- ments must be laid on good, sound timber, inches thick, inches wide, and feet long, hewed on two sides, and cross- covered with inch plank, firmly spiked to said timber and to ex- tend six inches beyond the base of the wall, all of which is to be sunk low enough to bring the bottom of the stone-work inches below low water mark, or to a greater depth, if directed by the commission- ers. Abutments to be feet long, feet high, and feet thick at base and feet at top, and to stand feet apart at top and the face of the walls to step or batter back from the foundation inches to the perpendicular foot. Wing walls to be raised to the height of the bridge floor, and to be of the same thickness as the main walls. wings to be long at base, and to be raised to a perpendicu- lar height of feet, and to step back regularly to feet at top. wings to be feet long at base, and to be raised to a perpen- dicular height of feet, and to step back regularly to feel at top. Masonry must be first-class chisel-drafted bridge masonry, and laid in range work. The stone must be good sound quarried sandstone, and to work upon their broadest bed, and to be laid parallel with the plane of their stratification in the quarry. All stone must have full dressed beds and lie steady without the aid of chips or spauls, with verticil joints dressed back at least six inches from the face, and at right an- gles therewith. All joints must be reduced to at most three-sixteenths of an inch, and be dressed off to a true line with the face. No stone to be less than thick and two feet long, and to be of uniform thickness throughout the course. All stone in the face to break joints at least twelve inches, and no stone to have more rise than bed. In double wall the back and face stone must be of even thickness and to be dresssd in such manner as to lie close together and break joints with each other. Headers must In- placed in the walls at intervals of not CHAP. 12, 101-113.] BRIDGES AND CULVERTS. 353 more than six feet; those in the one course alternating with those in the course next below it and extend through the wall. All stone in the top courses must be through stone. The stone to be laid in well-tem- pered mortar, composed of two parts of clean sharp sand to one of quicklime, to be mixed at least three day- before being used ; and all ma- sonry below high water mark to have a sufficient quantity <>t' water lime added immediately before being used; each course to be fully grouted with a proper portion of cement of such consistency as to allow it to run in and fill the wall completely. The bridge seats must be dressed to a true Level at least two feet from face, or the thickness of the waH when less than two feet 'J 'lie party of the first part further agree, that will conform in every particular to the directions of the commissioners or other per- sons appointed by them to take charge of the work agreeably to the terms of this contract. That will claim no extra allowance in any contingency in doing and completing the foregoing described work. That the commissioners may extend or diminish the quantity of work within reasonable limits without vitiating this contract. But no part of the work shall be altered by the contractors without the express sanction of the commissioners. The commissioners shall be the sole judge whether the work is pro- gressing with sufficient rapidity to insure its completion within the time specified; and if, in their opinion, the work is not thus progress. ing, or is being done in an unskillful or defective manner, they may declare this contract forfeited, or they may employ other assistance to complete the work at the sole cost of the party of the first part. The said work to be completed and ready for the acceptance of the parties of the second part, on or before the day of , 18 — , and warranted to stand firm in all its parts for years from its comple- tion. The said party of the second part aforesaid agree, upon the comple- tion of said work as above specified, that they will cause an order to to be drawn by the county auditor on the county treasury of said county, payable to the party of the first part, for the sum of dol- lars and cents, as full compensation for the work as specified above. In witness whereof, we, the parties, have hereunto set our hands the day and year above written. , , , C'inlractors. , , , Commissioners of county, Okie. 23 354 ROAD LAWS OP OHIO. [CHAP. 12, 114-121 114-116. Form of bond. Know all men by these presents, that we, L. B, as principal, and M. N. and O. P., as sureties, of the county of , in the State of Ohio, are held and firmly bound unto the board of commissioners of said county, for the use of said county, in the sum of dollars ; and lor the payment of which we jointly and severally bind ourselves, our heirs, executors and administrators. Signed this day of , A. d. 18 — . The condition of the above obligation is such, that, whereas, the said board of commissioners of county have this day entered into the foregoing [or, annexed, or otherwise clearly designate the] contract with the said L. B. at the request of the obligors herein : Now, if the said L. B. shall well and truly perform the stipulation upon his part to be performed, according to the true intent and meaning of said contract, then this obligation shall be void; otherwise it shall remain in full force. L. B., M. N., O. P. Approved : , , , County commissioners. 117, 118. Shorter form of bond, to be on same sheet with contract. On condition that the above named L. B., contractor, shall fail or neglect to do and perform all and singular the conditions, agreements, and stipulations of the above contract therein required to be performed by the party of the first part, we, L. B., M. N., and 0. P., jointly and severally firmly bind ourselves in the sum of dollars to pay to county, Ohio, all damages or losses which may be caused or sustained by reason of said failure or neglect on the part of said contractor to do and perform any and all the agreements which he has undertaken to perform in the foregoing contract. In witness whereof, we have hereunto set our hands this day of , 18—. [Signed by L. B., M. N., O. P.] 119. If contract not made on day named. — If the commissioners fail to make the contract or contracts, as above provided for, on the day named in the notice, they may continue from day to day until such contract or contracts be made. 1 120. Plans, etc., are part of contract, — The statute makes the plans, descriptions, and specifications a part of the contract. 1 121. When contracts valid. — It is essential to the validity of every ^ g 799. CHAP. 12, 122-127.] BRIDGES AND CULVERTS. 355 contract entered into by the county commissioners, or order made by them, that it has been assented to at a regular or special session thereof, and entered in the minutes of their proceedings by the au- ditor; 1 nor will such contract for the building of any bridge be binding upon any county until submitted to the prosecuting attor- ney of such county, and found by him to be in accordance with the provisions of this chapter, and his certificate to that effect is indorsed thereon. 2 122-124. Form of prosecutor's indorsement. After careful examination, I find the within contract to be in accord- ance with the provisions of law found in Chapter I., Title VI., Part First, of the Revised Statutes of Ohio, and to be in all respects in con- formity to law. C. C, Prosecuting Attorney of county, Ohio. 125. The prosecuting attorney is not limited in ascertaining whether the contract awarded by the commissioners is in legal form, but he is also required to ascertain whether the necessary steps which precede the award have been followed ; his duties are not merely ministerial, but he is also invested with discretionary au- thority ; and if he refuse to make the indorsement required of him, he will not be compelled to do so if the form and proceedings adopted in receiving bids are susceptible of being so construed and under- stood as to show that the contract may not have been awarded to the person offering to do the work for the lowest price, and he finds such to be the fact. 3 126. Plans, etc., must be filed. — The plan or plans and specification or specifications upon and according to which such contract or con- tracts are awarded must be kept on file in the office of the auditor, and made a part, respectively, of the contract or contracts with the successful bidder or bidders, as provided by law for other contracts/ 127. Contracts for repairs, alterations, etc. — When it is necessary to make any addition to, or alteration, or repairs of. any bridge, the commissioners must, in making contracts for the same, conform to 1 § 878 2 £ 799. 3 State v. Nash, 23 O. S. 568; and see also State v. Yeatman, 22 <>. S. 546. 4 g 796. See paragraph 87, or more fully, § 799, as to law referred to. Compare with paragraph 85, as to filing. 856 ROAD LAWS OF OHIO. [chap. 12, 128-136 the provisions of paragraphs above, in relation to the erection of bridges, as nearly as the nature of the case will permit. 1 128. Forms as to repairs, alterations, etc. — These will, of course, vary according to circumstances ; but they can readily be adapted from those given above. 129. If contractor fails to proceed. — If the contractor or contract- ors fail or refuse to proceed with the work specified in his or their contract or contracts, in accordance with the plans, descriptions, aud specifications attached to and made part of such contract or contracts, the commissioners have power to declare such cou tract or contracts annulled, and must proceed to make another contract or contracts for the completion of such work in accordance with the provisions of this chapter.' 2 130. Estimate of labor and materials shall be made, etc. — At the time or times named in the contract or contracts made and filed with the county auditor, in accordance with the provisions of this chap- ter, for payment to the person or persons with whom such contract or contracts had been made, the commissioners, or any architect they employ to superintend the erection of any bridge, or of add- ing to, altering, or improving the same, must make, or cause to be made, a full, accurate, and detailed estimate of the various kinds of labor and materials performed and furnished under such contract or contracts, with the amount due for each kind of labor and ma- terial, and the amount due in the aggregate. These estimates must, in all eases, give the amounts of the preceding estimate or estimates, and the amount of labor performed or material furnished since the last estimate or estimates, made as above required; and the es- timates must be recorded in a book for that purpose, to be provided by the commissioners and kept by the auditor. The auditor must furnish copies of all such estimates to the contractor or contractors, as these estimates are made from time to time. 3 131-136. Form of estimate for masonry. The following form may be used, or be added to, or otherwise adapted, as the circumstances require : 13 796. '£799. -?801. CHAP. 12, 137.] BRIDGES AND CULVERTS. 357 Engineer's office, county, Ohio, , IS—. Estimate No. of amount due to L. B., contractor, on S. creek bridge, for work done and materials furnished to and including Satur- day, May 9, 18—. Labor done, Materials furnished, etc. No. perch mortar masonry, at $ per perch No perch dry masonry, at $ — per perch. No. cubic yards earth moved, at cts. per yard [Etc., as may be\ Total earned, as per estimate.. Deduct per cent to be retained. Amount due on this estimate Since last Estimate. Dollars cts. Total of all Estimates. Dollars eta. To the commissioners of said county : 1 certify the above estimate to be correct, and the above amount of dollars to be due to on his contract for said work. , Engineer. 137. Duty of county auditor as to estimates, etc.— The county auditor must, when such estimate or estimates, certified as required in paragraph 130, above,', is or are presented to him, compare the same carefully with the contract or contracts under which such labor or materials were furnished, and if there are any previous estimates, then with such estimates ; and if, upon such comparison, he finds such last named estimates correct, he must number the same, place the original on file, and have a record thereof made, as required in paragraph 130, and give to the person or persons entitled thereto (taking his or their receipt therefor), a warrant on the county treas- urer for the amount shown by such estimate or estimates to be due, less the amount of five per centum thereon, which must be retained as additional security for the faithful performance of such contract or contracts ; and when the labor to be done and performed under such contract or contracts is completed or materials furnished, and a final estimate thereof is made, and all done to the acceptance of the commissioners, or any competent architect or builder employed by them to superintend the execution of such contracts, the county auditor must include, in his warrant or warrants on the county treasurer in favor of the person or persons to whom such final esti- 358 ROAD LAWS OF OHIO. [chap. 12, 138-141 mate or estimates are due, the percentage retained on former esti- mates, as herein required. 1 138. When contractor forfeits five per cent. — The five per centum mentioned in the preceding paragraph will be forfeited to the county in the event of a failure by such contractor or contractors to con- firm in good faith to the terms and conditions of such contract or contracts. 1 139. Payment of ivarrants; duty of treasurer. — The treasurer of the county must pay the warrants drawn under the provisions of this chapter, placing them on file, and keeping a register of the names of the person or persons to whom such warrants are paid. 2 140. Commissioners may purchase toll-bridge. — The commissioners of any county in which there is a toll-bridge may purchase it at such price as may be agreed upon by them and the owners of such bridge. 3 For forms which may be followed, with slight changes, see chapter nine. 141. May issue bonds therefor. — For the purpose of paying such agreed price, or any part of it, or the award or assessment and costs of appropriation, the commissioners may issue the bonds of the county, in sums of not more than five hundred dollars each, paya- ble in installments, during a period not exceeding ten years from their date, with interest not exceeding the legal rate, payable semi- 1 1 802. 2 \ 803. s §4941. Where a bridge company, owning a toll-bridge, sells it, under authority of law (Gli O. L. 22, 838), to the commissioners of a county for a considera- tion, in money, paid to a controlling stockholder of the company, who, to induce, and as part consideration of, the purchase, gives his bond for the use and benefit of the county, conditioned, among other things, "to pay off all liens and debts, whether in judgment or otherwise, existing against said bridge,"' a judgment creditor of the company, who had an execution lien upon the bridge at the date of the bond, may recover the amount of his judgment thereon against the obligor. Emmitt v. Bropliy, ; O. S. . I he -tatute of limitations does not interpose a bar to recovery upon such an instrument within fifteen years from the accruing of the cause of action upon it. I b. In an action to recover the amount of a judgment theretofore rendered, the plaintiff is entitled to recover interest upon the costs adjudged to him, from the date of the original judgment to the time ot recovery, lb. CHAP. 12, 142-146.] BRIDGES AND CULVERTS. 359 annually. Such bonds can not be sold at less than their par value. 1 142. And levy tax to pay same.— The commissioners may also cause to be levied and collected such tax, not exceeding one mill on each dollar of valuation of the taxable property of the county in any year, as will be necessary to pay such bonds as they become due, together with the interest thereon. 2 °143. Suits for injuries, etc., to bridges.— The provisions as to this include roads, etc., and may be found fully given in subdivision 11 of chapter 27. 144. Replacing bridge burned down.— In rebuilding a bridge de- stroyed or injured by flood or fire, the commissioners may select a new site for the bridged 145. Notice of hearing.— But before the change is made, or any contract for that purpose entered into, the commissioners must give at least twenty days' notice of the time when the question of change will be considered, and on the hearing, all persons interested may present their views and wishes to the board, either by petition, re- monstrance, or orally. 4 146. Bridges over mill-races, rfc.-No person possessed of the right to any water privilege is required by law to build, nor keep in re- pair, any bridge over any mill-race or water-course constructed by such person across any public road for hydraulic purposes. 1 g 4942 as amended, 81 O. L. 98. As to form of t,ond, see pars. 171. 182, of chapter 8. As to sale of, see pars. 9-17, of chapter 27. a§ 1943. 3$ 864. For adaptable forms of petition, etc., see pars. 17-25, above. 4 g Nil. 5 §4752. The person who maintains a mill-race, diverting water from its natural flow through the race to his mill, for private us,., which mill-race cuts and crosses a public road previously established over his land by authority of law, which race unbridged is an obstruction across the highway, to the hin- derance and inconvenience of travelers and persons going along and upon such public highway, must place a sufficient bridge over the race at the point ,,f obstruction, and keep it in repair so that the highway will be a good and safe for public travel as before the race was constructed. Township Trus- tees r. I'll tie. 30 <>. S. 62. This decision, which appears to conflict with the law above, is based by the court on the words, "or other obstruction," in par. 10 ol chapter 17. Per GH0LS0N, J. '"The purport of a number of authorities seems to be 360 ROAD LAWS OF OHIO. [CIIAP. 12, 147 147. When any road is hereafter established, the owner of such right must file in the county auditor's office, within a year after such that any person may erect a bridge over a stream crossing a public highway if it be of public utility. If it be built in a slight and incommodious man- ner, it may be treated as a nuisance. If not so treated as a nuisance, and it be really for the use and benefit of the public, then the charge of its repair is thrown on the county. (5 Mod. Cases, -100, p. 307 ; 1 Salk. 350; 5 Burr. 259 1 ; 2 Blackf. 68o; 2 East, 342; 2 M. & S. 513; 3 B. & Adol. 147. The right of the owner of land, through which a road passes and crosses a stream of water, to build a bridge for the public, with a view to the use of his water power, appears to have been tacitly or expressly admitted in a number of cases. The only doubt or inquiry in such cases has been whether the cost of the subsequent repair shall be borne by the mill-owner or the county. In the case of the King v. Inhabitants of Kent, 2 M. & S. 513, where a person had erected a mill and dam for his own profit, and thereby deepened the water of a ford, through which there was a public highway, but the passage through which was at times inconvenient to the public, and the miller erected a bridge over it, which the public used, it was held the county, and not the miller, was chargeable with the reparation. It is said in a case de- cided in New Yoik, ' a bridge built by an individual over a public; highway, that is useful to the public and generally used by them, or if in the course of time it has become useful, and is used by the public, must be kept in repair by the public; as should a patriotic person build a bridge, at his own expense, over a public highway, it would be more than unjust to compel him also to keep it in repair. Even should he derive a benefit or convenience individu- allv, still, as it would be a great accommodation to the public, it ought to be repaired by the public' Heacock v. Sherman, 14 Wend. 58-60. Similar re- marks are made in a case in New Hampshire. State v. Campton, 2 N. H. 513. In another case in New York, where the distinction was recognized as to the question of a liability to repair, that the bridge was exclusively for the use of the miller, it being over a ditch which he had dug in the surface of the ground for a race way, it was said: 'The defendant certainly committed no trespass in digging the ditch. It was on his own soil. The only right ad- verso to his was one to have a common highway for the purposes of travel. All the public c< uld require was that he should make and keep the road as good as it was before he dug the ditch.' Dygert v. Schenck, 2:5 Wend. 416. "There seems to be some conflict in the authorities as to the cases in which, by the erection of a bridge, the burden of its repair can be cast upon the public. The point lias been regulated, in England, by a statute, which, by implication, admitting that a private person might build a bridge upon the public highway, provides that its repair shall not devolve upon the pub- lic, unless built under the supervision and direction of the proper officer. 1 Ilarr. Dig. 2148; 3 B & Adol. 1 17. So upon the construction of the road laws of a state, the same result, clearly provided in England, lias been held CHAP. 12, 148-150. ] BRIDGES AND CULVERTS. 361 road is established, a written declaration of such right, describing and stating as near as practicable, where he intends some time to excavate a mill-race or water-course across the road. This declara- tion must be recorded by the auditor, and will secure such right to the owner, his heirs and assigns. But nothing in this section can prevent such owner from constructing a mill-race or water-course across any public highway already established, if he give the notice required in paragraph 111 of chapter 5. 1 14-S. Meclianictf liens may be taken on bridges. 2 But as it can scarcely be supposed that such a step will be deemed necessary as to bridges built as provided in this chapter, a mere mention of the fact and reference to the laws governing such liens is deemed suffi- cient on that subject. 14'.). Count ij commissioners may purchase toll-bridge. — The commis- sioners of any county in which there is a toll-bridge, or any bridge owned by any person or corporation authorized by law to charge and collect toll for crossing the same, may purchase such bridge, to- gether with the approaches, at such price as may be agreed upon by them and the owners of such bridge. 3 150. May appropriate same, when. — In case they are unable so to agree with the owners, the commissioners may appropriate it. For this purpose they must cause an accurate survey and description of such bridge and approaches, and the land occupied by it to be made, and file the same with the probate judge or court of common pleas of the county ; and thereupon the same proceedings must be had which are now provided by law for the appropriation of private property fir municipal corporations. 4 See chapter 27. to follow. Sampson v. Goochland Justices, 5 Grutt. 241. And we are not prepared to say that the same rule might not lie required under our statutes regulating the construction of roads and bridges." Bisher v. Kiehards, 9 Ohio St. 502. 1 \ 1753. H 3184-3200. 8 \ 19 1 1 a, 81 (). L. 97. See next note. *g 1941a, 81 O. L. 97. That amendatory section also provides that in case anysuoh bridgesou^ht to be purchased or appropriated is a part of a plank-road, and is located within one-fourth of a mile from the end thereof, as then existing, said com- missioners must also purchase or appropriate, in connection with said bridge 362 ROAD LAWS OF OHIO. [chap. 12, 151-155 151. Toll* cease, when. — Upon payment of the agreed price, or, payment into court of the compensation assessed, the right to charge or collect toll ceases. 1 152. Right to bridge forfeited. — When the commissioners make an appropriation of any bridge, as specified in paragraph 150, above, and fail to pay for it within three months after the assessment of compensation shall have been made, the right of the commissioners to make such appropriation on the terms of the assessment so made, ceases, and the bridge so appropriated will be relieved from all in- cumbrance on account of the proceedings in such case, and the judgment or order of the court, directing such award or assessment to be paid, will cease to be of any effect, except as to the cost ad- judged against the commissioners. 2 153. Mud put up caution notices; fast driving, etc. — The commis- sioners of the several counties must cause to be painted in large letters, and conspicuously placed at each end of every free county bridge which they may deem proper to protect by the provisions of this chapter, a notice cautioning all persons against driving on or over the bridge faster than a walk, or driving on or over the bridge at any one time a greater number of cattle or horses than twenty head, under penalty of a fine not to exceed ten dollars nor less than one dollar. 3 154. Arrest of certain persons on view authorized. — A constable of any township, or the marshal of any city or village, may arrest upon view, and without any process, any person violating the provisions of the preceding paragraph. 4 155. How prosecxded; effect of suit. — Prosecutions under the pre- ceding paragraph must be in the name of the state, and must be commenced within three months after the offense is committed. Nothing contained in this chapter can be construed to take away all of said plank-road lying between said bridge and the end of said plank- road, not exceeding one fourth of a mile, together with any toll-house used in connection with said bridge ; but that said sale or appropriation shall in no way affect the right of said plank-road company to collect toll on the un- sold or unappropriated part of its said plank-road. 1 I 49 1 1 a, 81 (). L. 97. 2 ? 49416, 81 0. L. 98. :i i> 1944. 1 \ 1945. For similar provisions as to toll-road bridges, see par. 61, chap- ter 11. CHAP. 12, 15G-176.] BRIDGES AND CULVERTS. 3G3 from the county commissioners any right of action for damages which they may have against any person for injury done to such bridge. 1 156. References to other bridge matters. — As to repair of, see pages 112 n, 182, 267, 268, 319. As to sale of bridge (or turnpike) in a municipal corporation to that corporation, see paragraph 187 of chapter 1 1. As to appropriation of bridge by turnpike company, see paragraph 7 of chapter 11. As to toll-bridges, see chapter 13. As to use of certain railroad bridges, see chapter 14. As to straighten- ing and cleaning out channel of stream for benefit of bridge, see chapter 15. See also paragraph 171 of chapter 7 ; par. 17, chap. 14; par. 197, chap. 23; pars. 4, 34-36, chap. 27. As to bridges on improved free roads, see paragraph 6, chapter 6; pars. 45, 135, 160, 186, chap. 7 ; pais. 4, 51, chap. 8; par. 114, chap. 10. On toll-roads about to be sold, see pages 250, 253. In cities and vil- lages, see page 398. 157-176. Forms of specifications. [Fill the blanks, of course.~\ GENERAL SPECIFICATIONS FOR A BRIDGE ACROSS , IK TOWNSHIP, COUNTY, OUIO, AT , ON THE ROAD, LEADING FliOM TO . 1. All old material will belong to the contractor, and must be re- moved by him without expense to the county, unless specially reserved below. 2. The contractor shall be at all risks from any cause whatever. 3. The contractor shall give his personal attention to the work, and will be held responsible for any damage that may result by reason of neglect. 4. No extras will be allowed except on the express agreement of the county commissioners and the county engineer. 5. All material must be furnished and all work be done by the con- tractor necessary to complete the job entire. 6. The work must be completed within the time specified, and no charge shall be made by the contractor for hinderance or delay from any cause; but such time may be extended by express agreement be- tween the contractor and the commissioners and engineer. 7. All work must be done in a neat, workmanlike, and substantial manner, and at the time of the acceptance to be fully completed, in all respects, to the satisfaction o p the county commissioners and county engineer. 8. No constructive or conventional measurements will be allowed, 1 § -1946. See par. 71 of chapter 27, as to such actions for damages. 364 ROAD LAWS OF OHIO. [chap. 12, 177-205 and only the actual quantity not in excess of the prescribed dimen- sions will be paid for, any custom to the contrary notwithstanding, except in case of excavation, where due credit will be given for all caving of banks, etc., that may actually occur surrounding the pits; but no measurement will be made of any work done by the contractor for his own benefit, beyond the proper slope of side banks required, and only on such side slopes where the slope is actually made and is necessary to protect the banks. 9. The contractor will be required to sign these specifications, and when signed, these form a part of the contract to complete the work specified. 10. The work must be completed within from the time of awarding the contract. 11. Commissioners reserve the right to reject any or all bids. 12. The commissioners may appoint any person or persons, whose duty it shall be to see that the work is done and materials furnished in accordance with the contract and specifications. 13. The work must be done to the acceptance of the county commis- sioners, who may make any alterations of plans or specifications, which shall accordingly be executed by the contractor, upon reasonable no- tice being given. The contractor shall be paid for such alterations at the same rates as for like work on the original contract, and when such alteration dispenses with any work or material, a deduction shall be made therefor at the same rates. 14. Bids will be received for the above described work accord- ing to the foregoing general and following particular specifications, at the rates stated below, which prices will cover all labor and material what- ever necessary to complete the job, viz: For masonry per perch of 25 cubic feet $ " rip rap " " " " • " excavation per cubic yard ■ " timber for foundations, per 100 feet, B. M " planking for foundation, per 100 feet, B. M " lumber for work specified, per 100 feet, B. M " superstructure for the job entire " fill per cubic yard.. Or, for the job entire, including every thing 177-205. Form of specifications FOR BUILDING THE ABUTMENTS AND WING-WALLS OF A BBIDGE ACROSS , ON TIIK COUNTY ROAD LEADING PROM TO , IN TOWNSHIP. Clear span feet from face to face of the abutments at the top, when completed : measured with the line of the center of the bridge. CHAP. 12, 177-205.] BRIDGES AND CULVERTS. 365 The pits for the abutments and wing walls must be dug out to the depth of feet below the of the , or to such a depth as, in the opinion of the engineer, will obtain a good bottom. In case of rock foundations the rock must be excavated to such depth as required, and must be made level by dressing to receive the foundation course. They must be of the same size and form at the bottom as the bottom of the walls, or as the timber foundation, if the latter is used, and equally deep throughout. Before commencing the timber foundations or any masonry, the contractor will notify the commissioners and en- gineer, in writing, and allow them at least days' time to get to the work and examine it. The pits, and the ditches or channels leading from them, must be excavated according to the directions ami stakes of the engineer. The contract price per cubic yard for excavation covers and includes all expense and work of pumping or bailing water, and placing in the ap- proaches, under the direction of the engineer, the material excavated that is fit for embankment. If, in the opinion of the commissioners and engineer, a timber foun- dation is necessary, it must be put in, and be of sawed or hewed square live timber. The first course must be laid crosswise with timbers feet long, inches wide, inches thick. The second course must be laid at right angles, inches wide, inches thick, and feet long ; the top course must be of sawed oak plank feet long, inches wide, and inches thick; all the timber to be laid firm and close together, and securely bolted, spiked or pinned, as the engineer may direct. The abutments must be feet long, feet high, and feet thick at the bottom, and built plumb of the same thickness to the height of feet, at which point there will be an offset on the back of inches. The face of the wall must then be carried to the top with a batter of inch to the foot. The back of the wall from said point must be built perpendicular to the top with ■ offsets toward the front inches wide, and at regular intervals of feet. The top, or coping course of the abutment walls must be inches thick, of stone, not less than feet wide, and extending en- tirely across the walls, and projecting inches over the face. The wing-walls must be ■ feet long, and built to correspond with the abutments at their junction with the same. The outer ends of the wing-walls must correspond with the abutments, except they must be feet less in thickness, and be made in regular offsets toward the abutments, commencing at the height of feet above the foun- dation course. Each offset must be inche high, and inches long. The top, or coping course, of wings and offsets must be a single 36G road laws of oiiio. [chap. 12, 177-205 stone inches thick, projecting three inches all around, and the same number inches into the masonry underneath the next offset above. The parapet walls must be inches high, inches thick, and feet long, coped with stone of the same quality and thickness as that specified for the wings and offsets, and projecting three inches all around. They must lap inches on the abutments, leaving feet between, measured square across the line of the bridge. All the stone must be cleaned, perfectly sound, durable, thoroughly wet, and fully shaped before taking upon the walls, and of a size from to inches wide, and from to inches long, and from to inches thick, and laid in regular courses through the whole thickness of the wall, including backing stone; no header or Btretcher being less than inches wide, forming range work. On all face stones designed for corner or angle stones, true and smooth drafts at least one inch wide must be cut. Backing shall be of same size stones, so dressed that each stone will lie firm and solid on its quarry bed, and with a proper proportion of headers, and header bear- ers, for the next course above. At least one-fourth of the entire wall shall be composed of headers, and all stones must bind eight inches on the next stone below. Joints shall be not more than of an inch wide, straight, and be so broken as to make a perfect bond. Joints of face stones shall extend at least eight inches into the masonry be square with each other, and be well and suitably pointed and fin- ished to the satisfaction of the county commissioners [board of control, if so] and engineer. Mortar. — No mortar must be spread on the top cf any stone or course of stone until the next course is to be laid, then each stone must be thoroughly imbedded in mortar. All lime mortar shall be composed of good newly burned black lime and clean sharp sand, in the proportion of one measure of lime to two measures of sand; one bushel of lime to each perch of stone must be used ; it must be slacked and mixed dry with sand in a box, kept covered, and mixed with water in another box as needed. The masonry of that part of the abutments and wing-walls from the foundation to the heighth of feet and the face course to the top, must he laid in cement mortar. From the point above the cement mortar the stones for the abutments and wing-walls must be laid in lime and sand mortar. All cement mortar shall be composed of good cement that has not been manufactured more than two months previous to the time of using, and clean, sharp sand, only in proportions of one measure of cement to two measures of sand. No lime or cement shall be used CHAP. 12, 206-213.] BRIDGES AND CULYSRTS. 367 that has been wet, or in any way damaged. One barrel of cement to four perches of masonry must be used ; it must be sifted together with dry sand and kept in a covered box, until needed, and then mixed in another box. Masonry requiring the use of mortar shall not be built when the weather is cold enough to freeze. If, in the opinion of the county commissioners and engineer, said work is not being done according to these plans and specifications, the contractor or contractors, upon receiving through the engineer a copy of the resolution condemning said work, or any part thereof, said resolution having been duly approved by the board of , the said contractor or contractors must proceed, within five days from the re- ceipt of said copy of said resolution, and tear down said work in whole or in part, as may be required, and to at once replace the same in strict accordance with the plans and specifications. 'I he whole ex- pense of tearing down and rebuilding, as above described, must be borne by the said contractor or contractors, who shall also, upon order of the engineer, at once stop all work until further orders. Should the contractor or contractors refuse or neglect, within the time mentioned, to tear down and rebuild as directed aforesaid, then the said board of county commissioners [with Ihe approval of the board of control, if so] may rescind said contract, and the contractor or contractors must forfeit all moneys due them by reason of said in- ferior work, and the said commissioners shall at once relet the work in the usual manner, and so much of the cost of tearing down and rebuilding said work in accordance with the plans and specifications in excess of the original estimated cost shall be borne by the said contractor or contractors, or their sureties, and the said contractor or contractors shall be, debarred from further competition in county let- tings, unless, by resolution of the board of commissioners (and ap- proved by the board of control), said disability is removed. TO BE 1SII) FOlt. Foundation. — Timber, per 100 feet, B. M. ; excavation, per cubic yard, ; masonry, per perch of 25 cubic feet, [etc. ax may be]. — , 18 — . , County Engineer. 20G-213. Another 1 form of specifications for the stone work. The masonry to consist of two abutments, to be built of quarried sand-stone, all to be laid on its quarry bed; all face stone to be not less than long on their face, not less than inches thick, and ^ee also pars. 101-113. 368 ROAD LAWS OF OHIO. [chap. 12, 214-224 to bed not less than inches, and to be well bound together by- headers, which must reach clear through the wall at intervals of not to exceed feet apart in each course. Each stone to be dressed to a true and even surface and laid in range work; the face to be what is termed rock work, with rough points broken off, and laid up in the best workmanlike manner, to the satisfaction of the superintendent. The stone to be laid in well tempered mortar, composed of two parts of clean sharp sand to one of quicklime, to be mixed at least three days before being used; and all masonry below high watermark to have a sufficient quantity of hydraulic cement added immediately before being used. Each course to be fully grouted with a proper por- tion of cement, of such consistency as to allow it to run in and till the wall complete. The abutments to rest on a platform of hewed timber inches square and long, covered with two inch oak plank well spiked down with six inch spikes, and to be sunk at least . [If so, say — the top course to have large stone to furnish bearings for the cords of the bridge. Said stones to be wide enough to cover the wall and to be at least feet long, and to be one or one and one-half inches higher than the rest of the wall. The r<-st of the top course on face and wings to be coping of [describe the stone'] span in the clear.] [Add, when needed, specifications as to wing-walls, etc., ivhich may be adapted from preceding form.] All embankment necessary to be bid on by the yard. Any excava- tions to be included in the bid for stone work. 214-224. Form of specification for an iron superstructure. 1 General description. — The bridge will be a through [or, deck] bridge, consisting of spans, and will have a roadway of feet between 1 This form, as well as the following sensible remarks, are taken from the "Practical Treatise on the Construction of Iron Highway Bridges," by Al- fred P. boiler, A. M. C. E. "The best work is obtained by permitting bridge builders to have full latitude of design, under no other restriction than that of requirements and material. These should be made so clear that no refuge for evasion may be found under technicalities. To make a just comparison of prices, com peting parties must estimate upon precisely the same basis, or endless con- fusion will result in any effort to make a fair canvass of tenders. It is recommended, in all cases of a bridge-letting, to call in the services of an expert — not simply a general engineer, but one familiar with the science and practice of bridge building, for the purpose of examining the CHAP. 12, 214-224.] BRIDGES AND CULVERTS. 3G9 guards, with sidewalks of feet in the clear each. Sidewalks to be raised inches above level of roadway. The distance from grade to bed of stream [or, from grade to grade of roads crossing each other] is feet. From grade to highest water is feet, and the center line of the bridge makes an angle of degrees [to the right or left] with the face of the abutment or piers. Loads to be carried. — The bridge must be proportioned to carry, in addition to its own weight, pounds per square foot of moving load, starting at one end, and moving over until the whole span is covered, in addition to which the flooring system must be proportioned to carry tons [of 2,000 pounds] on each pair of wheels for each wagon-way, and due consideration must be given to the effect of this concentrated loading upon the posts and tension-braces of the trusses. The stringer-beams and floor-beams [to be wood or iron, as desired]. Factor of safely. — Under the above loading, the factor of safety re- ferred to ultimate strength, shall be for the chords [four or live], for the web system [five], and for all parts of the floor system [five or six]. Material. — The wrovghi-iron [or, steel] used shall be of that quality best suited to the purpose, the test for bars being that pieces cut therefrom shall be capable of being bent cold without fracture, until the two sides of the bend shall approach each other within the thickness of the bar. No iron in small bars to be used with an ultimate strength of less than 55,000' pounds per square inch, or an elastic limit of less than 24,000 pounds per square inch. Castings must have a clean skin, free from holes or cinder, and ex- pose when broken a fine-grained gray fracture. Lumber must be [see specification in pars. 225-231, and adapt to suit, for bridge stringers and flooring. Ed.~\ Construction. — In pin-connection designs, the pins must be carefully turned to match the holes of the several parts of the trusses through which they pass, with a minimum play of a scant one thirty-second of an inch, and in diameter must not be less than eight-tenths the width strain-sheets submitted with the tenders, and comparing them with the specifications on which bids were taken. His services should be continued throughout the building of the bridge, the work on which, however, should not be commenced before all detail drawings have been made by the eon- tractor, and submitted to the expert for criticism and approval. If it is inconvenient to employ such an inspector through the continuance of the work, he should be called in at its completion, to make a thorough examina- tion as to the material and execution, in accordance with the contract and specification. 1 A high standard. 50,000 for iron and 00,000 for steel will do. 24 370 ROAD LAWS OF OHIO. [chap. 12, 225-231 of the largest bars they connect; if of flat iron, or if the bars are of square iron, the diameter must not be less than one and three-fourths times the side of the largest square. The heads of eye-bars must have at least fifty per cent of effective section more than in the body of the bar. The bearing surfaces of the compression members on the pins must be effectively reinforced, so that the minimum thickness in inches of such surface will not be less than the result derived by divid- ing the maximum strain as shown on the strain-sheet in pounds, by 12,000 times the diameter of the pin All bearing surfaces must be machine-faced, and any discrepancy in length between all parts in the same panel must not exceed one sixty-fourth of an inch. Where rivets are used, serving to transmit strain, and not simply for the purpose of securing parts in position, they should be proportioned as to number and size by considering the working value [in pounds] of each rivet to be equal to its diameter, multiplied by 12.1 '00, multiplied by the thick- ness of the thinnest plate. The plates and angle-bars subject to ten- sion, under such riveted construction, must have an allowance made up for the area cut out by the rivet-holes. Pin-connection work and solid section iron will be considered to have an advantage of ten to twenty per cent over and above riveted or com- pound work. The spacing of the rivets must not exceed five inches between centers, and in the flanges of plate-girders the pitch must be reduced as the ends are approached, according to the value obtained by the above rule for the proportioning of rivets. Before shipment, all iron must have a thorough coating of mineral paint, well rubbed in, and all bright work must be protected with white-lead and tallow. [To the above specifications must be added the degree of finish re. quired, such as the painting after erection, the manner in which side- walk is to be laid, whether the plank is to planed, etc.; also the kind of railing desired, whether plain or ornamental, and proposed arrange- ments of lighting.] 225-231. Form of specification far roooden superstructure Of a bridge which is to be built across creek, in township, county, Ohio, at a place known as . [ Use the foregoing general specifications, specifications for stone work, and additions to the following, if required.] [The plat (or plats) which accompanies these specifications, and which is hereby made a part of the same, is a plan and elevation of some of the wood work and abutments of said bridge ] Tin' entire length of the bridge to be feet in span, to be a single track bridge sixteen (16) feet wide, from out to out, and high CHAP. 12, 225, 231.] BRIDGES A.N'D CULVERTS. 371 in the clear. The timbers for the stringers, main plates, arches, caps bolsters, and checks, main braces and lateral braces, will be of good sound white oak, and the timbers for the posts and Boor timbers, rafter plates, rafters, etc., will be of good sound white oak or burr oak. Shingles to be of No. 1 white pine or cypress, made, shaved, and war- ranted laved on lath inches to the weather, in the usual manner. The sides and ends of the bridge to be inclosed with good one inch dry poplar Siding, parallel widths, and well battened in the usual way. Ends to be finished with box cornice, planed, and painted with two good coats of white paint. The stringers, arches, and main plates to be bolted through the posts with inch round iron bolts. 1 he main plates to be locked together with inch round iron bolts at the joints and with one bolt in each cord at every space as per plat . Locks in stringers to be bolted with four inch bolts at each lock; ends of the floor timbers to be bolted to the posts in the same way. Lateral braces to be bolted to the stringers and caps with inch locks as per plat " ." All bolts to be secured with good burrs and washers The washers for the inch bolts to be not less than inches in diameter, and the washers for the inch bolt to be inches in diameter; washers to be used under each head and nut of all the bolts The stringers to be well locked together at the joints with hard wood locks (see plat " "), and in no case, will there be more than one lock to each panel in the same stringer; each span ot said bridge to be framed not less than inches crowning; bolsters framed with posts with - - inch tenons; arch checks to be locked to the stringers and guyed to the posts and bolted through the stringers and sub-cords with two inch round iron bolts. Stringers, arches and main plates and posts to be guyed together with guys one inch deep cut in each timber. Stringers will be trunneled together with goo d one and one-half inch hard wood pins in each cord at every panel. The sizes of timbers to be used shall be as follows : Stringers by inches, two thicknesses of timber to each cord. p lates 1_ by inches. Arches by inches when worked. Po C sts by inches, enlarged at the ends to by inches. Caps by and by inches. Floor timbers by inches. Sub-cords - - by inches. Wall plates by - - inches. Arch checks by inches. Main braces — by -- inches. Lateral braces by - - inches. Rafter plates by — inches. Small floor Umbers - - by inches. Rafters and nailing pieces _ bv inches Floor plank inches thick by inches wide, well spiked to the floor timbers. Fender plank by inches, spiked 372 ROAD LAWS OF OHIO. [chap. 12, 232-249 to the posts and braces, one foot from the floor. Skew braces to be by inches. All lumber and timbers must be good and sound, sawed true, not winding, full size, free from sap, wind-shakes, large or loose knots, de- cayed wood, worm holes, or any defect that will impair its strength or durability. All surfaces where wood touches wood must be thoroughly painted before being put together with hot coal tar properly thickened with lime [or slate how else it must be painted in joints.^ 232-241. Form of specifications of wooden superstructure for smaller bridge. [ Use the foregoing general specifications, specifications for stone work, and additions to the following, if required.^ The lumber used must be good sound white or burr oak, of full length and thickness, free from sap and all defects, and cut from live timber, and will be in quantity and dimensions as follows, viz: joists inches thick, inches wide, feet long, will be placed equal distances apart and bridged with row of diagonal bridging, similar to house joists, of three inch by one inch stuff, nailed with two 8d. nails at each end. Two dirt planks two and one half inches thick, inches wide, feet long, to be spiked to the ends of the joists, at top and bottom of each joist. Two wall plates two and one-half inches thick, twelve inches wide, feet long, to be laid on the abutments flush, with their faces, for the joists to rest on. side posts three inches thick, four inches wide, at top, by six inches wide at bottom, to have a shoulder cut at the lower end, of the same depth and length as to fit the joists, to which they will be spiked, at top and bottom. Two side rails four inches thick, four inches wide, feet long, to be spiked to the top of the posts, which will be cut so as to be three feet above the floor. Flooring planks will be inches thick, eight to ten inches wide, anc l feet long, to be spiked to the joists with inch spikes at each end, and one into each joist between on alternate sides, will be laid so as to lap over the dirt planks and be spiked to them. Lumber and work must correspond to the foregoing specifications, and any variation therefrom, except by agreement, will not be received 242-249. Form of specification for a box culvert of stone. [Use the general specifications found on pages 363-4, and such others next chap. 12, 250-252.] bridges and culverts. 373 thereto as desired, if any, and also the following, or those found in note on page 224, as circumstances require.] The culvert will be feet long, and in the clear will be by feet at the lower end, and by feet at the upper end, and will be built as follows : A pit will be excavated feet long, feet wide, and feet below the of the . This pit will be paved throughout with stout's sot on edge crossways foot deep, and for the feet below the culvert the pavement will be dished in the center and be protected with a double row of inch curbing feet deep across the lower end. On this pavement the abutments will be built feet long, feet high at the lower end and feet high at the upper, and feet thick. All stonework except pavement to be of range work in to inch courses. Stone to be sound and of good size, to be dressed and bedded to inch joints. Joints broken and no spawls to be used in the face work, and all stone to be laid flat on their natural quarry bed. Covering stone to be feet long, feet wide, and not less thau inches thick, closely jointed and backed up level. Parapets will be built on the ends of the culvert, inches high, inches thick, and feet long. Last course of stone to reach entirely across the wall. Above to be dry work. 520-252. Form of specifications for a sluice bridge over Branch, near the residence of , in township. Pits for bents must be sunk two feet below the bed of the stream. Bents to be eight.feet high, and to be composed of two sills eight by ten inches, twenty-six feet long; two caps 8 by 8 inches, twenty feet long, and live posts to each bent six by eight inches; the two outside posts to be slanting posts, all to be substantially framed together and pinned at top and bottom. Bents to be spanned with six joists five by fifteen inches, twelve feet long. Joists to be let down on caps one and one-half inches at each end, and to be covered with plank two and one-half inches thick and eighteen feet long, and not to exceed ten inches in width, all of which must he firmlj spiked with not less than one live-inch spike at each crossing of joists. The ends of covering plank are to be extended over the outside joists four inches, and to be sawed off to a line. Hand rail to he the length of bridge, four by four inches in size., and to be supported by three posts of same size running through the floor of bridge, halved on to inside of joists and firmly bolted to the same. Kail to stand three feet high from bridge floor with rub board one and 374 ROAD LAWS OF OHIO. [chap. 12, 253-258 one-half inches thick and twelve inches wide, spiked to posts ten inches from top of rail. The hack of bents to be planked up to the height of road-bed with two-inch plank firmly spiked on. A three- fourths-inch bolt or rod of round iron with head and washer on one end, and burr and washer on the other, is to pass through the center of the joists below the floor, and are to be substantially bridged with two-inch plank of the same width of joists on alternate sides of the rod and about two inches from the same with burr firmly drawn up. 253. For specifications for a culvert or bridge with wooden abut- ments, see page 224. 254-258. Specification for approaches to [designate the bridge, etc., as in preceding specifications, or otherwise definitely]. The approaches to said bridge must be made of stone, gravel, sand or earth, to be taken from within the limits of the road [or, elsewhere, if so, designating where], under the directions of the county commission- ers [or, engineer, etc.]. Said approaches must be feet wide at the top, and to have slopes of one and a half feet horizontal on each side to one foot perpendicular. The top of said approaches shall be grav- eled for a width of feet, the center of the graveled part to coincide with the center of the approach, the gravel thereon to be inches deep at the edges, and inches deep at the center, the gravel to be got at , and to be [describe it, as in paragraph, "gravel," in note on page 23A, if desired]. These approaches shall be so made that, after settling weeks, the surface of said gravel thereon [or, their surface, if not graveled] shall be just flush with the floor of the bridge at each end of it, and of a uniform grade from the north [or, east, etc.] end of the bridge to a point in the road feet north [or, east, etc.] of the bridge, and of a uniform grade from the south [or, west, etc.] end of the bridge to a point in the road feet south [or, west, etc.,] of the bridge; showing no "swags," elevations, or depressions. The line of direction of said approaches shall be straight [or, if curved, its staked off, or, as shown on the plat, etc., as may be] from the center of each end of the bridge to the center of the road at the points where the approaches meet the road. No extras will be allowed, except upon the express agreement of the county commissioners, and all work must be done not later than ■ •, 18—, to the satisfaction of said commissioners [and county engineer, if so]. All materials not expressly furnished by the commissioners must be paid for by the contractor. CHAP. 13, 1-2.] TOLL-BKIDGE AND AVENUE COMPANIES. 375 CHAPTER XIII. TOLL-BRIDGE COMPANIES AND AVENUE COMPANIES. Subdivision 1 (Paragraph 1). General LAWS. Subdivision 2 (Paragraphs 2-8). Bridge companies in fhk state. Subdivision 3 (Paragraphs 9-17). Ohio river bridge companies. Subdivision 4 (Paragraphs 18-22). Avenue companies. Subdivision 1. General laws. 1. General laws as to corporations govern.-The provisions of this chanter are found in Title II of Part Second of the Revised Stat- utes of Ohio, and therefore the chapter of those statutes relating to the creation of corporations, with its general provisions regulating corporations so created, apply to these bridge and avenue com- panies. 1 Subdivision 2. Bridge companies in the state. 9 Poivers of bridge companies.— A company incorporated to con- struct a bridge over any stream of water in this state must either owl- the bank on each side of the stream where it is proposed to erect its bridge, or obtain the consent of the owner or owners thcreoi, iu writing, to occupy it; it may purchase, or appropriate in the manner provided by law, and hold, such real estate as will be re- quired for the site of the bridge, and suitable avenues or approaches leading thereto, may use so much of any public street, road, or avenue as is necessary for landings and abutments, and may appro- priate in the manner provided by law any rights or franchises nec- essary in the construction of the bridge. 2 iSee note 2 to par. 2 of chapter 11 of this b »ok. 2§ 3537 As to laws [joverning such appropriations, soo chapter 18. For the exercise of the franchise of erecting a toll-bridge created by the legislature, authority to take private property, necessary for the purpose, may be granted. It U a public use. Young v. Buckingham, 5 O. 48o. 376 ROAD LAWS OF OHIO. [CHAP. 13, 3-7 3. In municipal corporation*. — The provisions of paragraph 186 of chapter 11 (§ 3492) are applicable to such companies. 1 4. Must post rates of toll. — Such company, previous to receiving tolls upon its bridge, must set up and keep in a conspicuous place on it, a board, on which must bo written, painted, or printed, in a plain aud legible manner, the rates of toll there charged; and if its charter provides that such rates shall be proscribed by the court of common pleas of the proper county, and the company demand and receive any greater rate of tolls than the rate so prescribed, it will be subject to a hue of ten dollars. 2 5. The posting of the rates of toll is a condition precedent to the right to exact tolls; but the casual interruption, by violence or otherwise, for a short period, in keeping up the rates of toll, would not deprive the company of any right, provided it had once per- formed the duty imposed by the statute, and were guilty of no un- reasonable delay in keeping within its provisions. 3 6. Rates of toll allowed. — Any company authorized by its charter to take tolls above the rates hereinafter provided, may charge and receive the following rates of tolls, and do more : for each foot passenger, one cent ; for each horse, mule, or ass, one year old and upward, three cents; for each horse and rider, ten cents; for every chaise, chariot, gig, or other two or four-wheeled pleasure carriage, drawn by one horse, fifteen cents ; for every such vehicle drawn by two horses, twenty-five cents, aud if draw r n by four horses, thirty cents ; for every sled or sleigh drawn by one horse or other animal, ten cents, and for each animal in addition, three cents; for every wagon drawn by one horse or other animal, ten cents, and for each animal in addition, three cents; for every wagon drawn by two horses or other animals, fifteen cents, and for each animal in addition, three (ruts; for each head of neat cattle, six mouths old or upward, one cent ; and for each head of sheep, goats, or hogs, one-half cent ; but this paragraph can not be construed to affect any company in whose charter special rates are provided ; and no power is given to the legislature to alter or amend the same. 4 7. May make and enforce regulations. — All bridge companies aud. owners are invested with full power and authority to make and en- i§3537. 2 § 3538. 3 Bonham v, Taylor, 10 O. 108. *l 3539. CHAT. 13, 8-11.] TOLL-BRIDGE AND A.VENUE COMPANIES. 377 force any rule or regulation deemed necessary or requisite to preserve and protect their property and collect their tolls, and may prevent any person from crossing any bridge owned by them on foot, or by riding, or driving any team or vehicle, or from driving any stock thereon, who fails to pay the regular fare when demanded; and the police or watchman of any such bridge have all the power and au- thority of policemen of cities, and may arrest any person who vio- lates the law, or the rules of the company or person owning the bridge, without warrant, at or upon such bridge, and take him before the proper civil authority to he dealt with according to law. 1 8. As to purchase or appropriation of toll-bridges by county com- missioners, and their conversion into free bridges, see paragraphs 149-152 of chapter 12. Subdivision 3. Ohio river bridge companies. 9. Powers of Ohio river bridge companies. — A company organized to construct a bridge over the Ohio river may construct and main- tain such bridge, with suitable avenues or approaches leading to it, and with either a single span or a draw, as the company may deter- mine; hut in either case, in order that the bridge may not obstruct the navigation of the river, it must be built in accordance with the provisions of an act of congress approved July Id, 1862, entitled "an act to establish certain post-roads," or of any act of congress subsequently passed on the subject. 2 10. Further powers of such companies. — Such company may pur- chase or appropriate in the manner provided by law, and hold, such real estate as, in the opinion of its directors, will he required for the site of the bridge 1 , and of suitable avenues or approaches lead- ing thereto, and may locate the same on any public street, road, or avenue; and the company will be responsible for injuries done to private property, adjacent, or near to such bridge, by its location ami const ruction, which may be recovered in a civil action brought by Hie owner, at any time within two years from the completion thereof/ 1 11. Rates of toll preserved. — The company may fix and collect iJ^JtO. a g3541. 3 2 3542. 378 ROAD LAWS OF OHIO. ' [CHAP. 13, 12-14 reasonable rates of toll for all persons, animals, vehicles, and prop- erty passing or transported over the bridge, but such rates can at no time exceed those collected at the Covington and Cincinnati bridge; and the company must set up and keep in a conspicuous place, at each end of the bridge, a board on which the rate must be written, painted, or printed in a plain and legible manner. 1 12. May lay railway tracks on bridge. — The company may lay down a railway track or tracks upon the bridge and its approaches, and may contract at any agreed sum or rate, with any railroad company organized in this state in accordance with law, or any railroad com- pany organized in any other state of the United States, for the use of the bridge, for the purposes of such railroad company. Any such railroad company organized in this state may enter into such contract with the bridge company ; but the bridge company have no right to charge or collect from the railroad company for the use of the bridge in the transportation over it of cars, railroad passen- gers, and freights, a greater toll than the following : for each ton (two thousand pounds) of freight, not exceeding fifteen cents; for each passenger, not exceeding fifteen cents; for each passenger, baggage, mail, or express car, not exceeding one dollar; for each eight-wheeled freight car, fifty cents; and for each four-wheeled freight car, not exceeding twenty-five cents. 2 13. Mortgage of franchises and sale of obligations. — The company may include all its rights, income, profits, and franchises in any mortgage it may lawfully make, and upon a foreclosure of a mort- gage of its bridge, land, and franchises, and a sale thereof, such sale will pass to the purchaser the corporate franchises of the com- pany as fully as the company had them at the time the mortgage was executed ; and the company may dispose of any evidence of indebtedness it may lawfully issue at such rates and for such prices at not less than seventy-five cents on the dollar, as, in the opinion of the directors, will best advance the interests of the company ; and if so sold at a discount, without fraud, the sale will be as valid, and the securities as binding for their respective amounts, as if sold at par. 3 14. Railroad companies may subscribe to stock. — Any railroad com- pany, or other private corporation, organized under a law of this state, may become a subscriber to the capital stock of such bridge g3543. 2 §3544. s §§ 3545, 3290. CHAP. 13, 15-18.] TOLL-BRIDGE AND AVENUE COMPANIES. 379 company, to an amount not exceeding one-third of such stock, or may purchase or take by way of pledge, any of the bonds or other evidences of indebtedness issued by it. 1 15. Consolidation of companies. — Such bridge company has the right to consolidate its capital stock with the capital stock of any bridge company in an adjoining state authorized to construct a bridge across the Ohio river, in the manner prescribed for the con- solidation of railroad companies ; and the two companies will there- upon be merged into one corporation, possessing within this stateal] the rights, privileges, and franchises, and subject to all the restric- tions, disabilities, and duties of such corporation of this state so consolidated." 16. May change span or height of bridge. — Such company may fix or change the span and altitude of any bridge which it may erect and construct ; but the span must not be less than three hundred feet in the clear over the main channel, and not less than two hundred and twenty feet in the clear in one of the next adjoining spans ; and the height of the bridge in the center of the span over the main channel can not be less than one hundred feet above the surface of the water at low water mark, measuring for such elevation to the bottom chord of the bridge, and such height above extreme high water mark as may be provided in any act of congress now in force or hereafter passed ; but this section does not apply to any bridge built with a draw in accordance with the provisions of an act of congress approved July 14, 1862, entitled "an act to establish cer- tain post roads," or any act of congress subsequently passed on the subject. 3 17. May oivn and run certain ferries ; rates of ferriage. — Such com- panies may purchase, hold, and receive grants for, and run, ferries within one-half mile of such bridges across said river, and do and perform all the necessary acts in relation thereto; but the rates of ferriage will be subject to the control of the authorities as in ease of ferries owned and run by individuals. 1 Subdivision 4. Avenue companies. 18. Avenue companies in certain counties. — Companies may be in- 1 \ 354G. 2 1 3547. 3 g 3548. * \ 3549. 380 ROAD LAWS OF OHIO. [CHAP. 13, 19-21 corporated in any county having not less than one hundred thousand inhabitants, for the purpose of constructing avenues in the counties where they are organized. Such avenues must be opened not more than one hundred feet in width, at least sixty feet of which must be cleared of all obstructions, and not less than thirty feet must be made an artificial road, composed of stone, gravel, or other suitable material, wel) compacted together in such a manner as to secure a firm and substantial road, and must not be less than five miles in length. Such companies may enter upon and appropriate any lands for the use of such avenue after having obtained the written con- sent of a majority of the persons owning the lands sought to be ap- propriated, which consent must be entered upon their records. 1 19. Other turnpike companies. — A corporation created for the pur- pose of constructing and maintaining a free public avenue must construct and maintain its avenue not less than fifty nor more than one hundred feet wide, of such materials as it may deem proper. It can not charge toll of any kind for the use of its avenue by the public, but may make and enforce all necessary and reasonable reg- ulations for its use and preservation. If, in laying out such avenue, it be necessary to enter upon and appropriate any lands or premises, the proceediugs therefor must be instituted and carried on in all re- spects as is provided by law for the appropriation of private prop- erty by municipal corporations. 2 29. When company may take tolls. — When any such company puts under contract five consecutive miles of any such avenue, and com- pletes not less than two consecutive miles thereof to the acceptance of the county commissioners, or when the whole of any such avenue is completed to such acceptance by any such company, the company may erect a toll-gate thereon for the collection of such tolls as turn- pike and plank-road companies are allowed by law to collect ; and when a company completes to such acceptance five consecutive miles of an avenue, it may erect thereon two toll-gates, at such places as in the opiniou of the directors will best subserve the interest of the company, for the collection of such tolls. 8 21. When consent of authorities necessary. — When, in laying out any such avenue, it becomes necessary to run through or along the 1 \ 3822. See chapter 19. 2 § 3823. See chapter 19. 3 g 3824. As to what these tolls may be, see pars. 53-57 of chapter 11. CHAP. 13, 22.] TOLL-BRIDGE AND AVENUE COMPANIES. 381 line of any village, the board of directors of the avenue company must obtain the consent of the council of such village to the laying out of such avenue through or along the territory over which they have supervision or control. 1 22. Authorities may surrender roads to company. — If, on application being made to the council of a village, they are of opinion that the public good demands the laying out of such avenue, they may give their written consent to the laying out and construction of the same, winch will have the force and effect of a full and complete release of all authority over the avenue within their corporate jurisdiction, and the directors may lay out and construct the avenue through the territory of such village, and control the same in all respects as though the village did not exist. 2 13 3825. §3826. 382 ROAD LAWS OF OHIO. [CHAP. 14, 1-3 CHAPTER XIV. RAILROADS, CANALS, TELEGRAPH, AND TELEPHONE COM- PANIES, AS AFFECTING PUBLIC ROADS. 1. Signals at road crossings. — Every railroad company must have attached to each locomotive engine passing upon its road, a bell of the ordinary size in use on such engines, and a steam whistle ; and the engineer or person in charge of an engine in motion, and ap- proaching a turnpike, highway, or town road crossing, upon the same level therewith, and when the road crosses any other traveled place, by bridge or otherwise, must sound such whistle at a distance of at least eighty and not more than one hundred rods from the place of such crossing, and ring such bell continuously until the en- gine passes such road crossing; but the provisions of this paragraph shall not interfere with the proper observance of any ordinance passed by any city council regulating the management of railroad locomotives and steam whistles thereon, within the limits of such city. 1 2. Penalties/or violation of preceding paragraph. — Every engineer or person in charge of any such engine who fails to comply with the provisions of the preceding paragraph will be personally liable to a penalty of not less than fifty nor more than one hundred dollars, to be recovered by civil action, at the suit of the state, in the court of common pleas of any county wherein any such crossing is ; and the company in whose employ such engineer or person in charge of an engine is, as well as the person himself, will be liable in damages to anv person or company injured in person or property by such neg- lect or act of such engineer or person. 2 •'!. Railroad company mud build crossings and cattle-guards. — A com- pany or person having control or management of a railroad must, before operating it, cause to be constructed and maintained at every point where any public road, street, lane, or highway, used by the 1 \ 3336. See notes to par. 3, below, as to watchfulness, etc., person cross- ing track must exercise. * I 3337. CHAP. 14, 3.] RAILROADS, CANALS, ETC. 383 public, crosses such railroad, safe aud convenient crossings, and on each side of such crossings, cattle-guards sufficient to prevent do- mestic animals from going upon such railroad. 1 As to private crossings, see paragraphs 14-18, below. 1 . 3324, as amended, 78 0. L. 190. This section also contains some provisions as to fences. For decisions ns to fences, domestic animals, and duties of owners and railroad as to, etc.. see R. R. Co. v. Laurence, 13 O. S. 60; Kerwliacker v. 11. B. Co., 3 (). S. 172; Ii. It. Co. v. Elliott, 4 O. S. 474; R. R. Co. v. Smith, 22 (). S. 227; R. 11. Co. v. Bailey, 11 O. S. 333; R. R. Co. v. Watterson, 4 (). S. 424; Easter v. It. It. Co., 14 O. S. 48 ; R. R. Co. v. Stephenson, 21 O. S. 48 ; R. R. Co. v. McConnell, 26 (). S. 57 ; Haxton v. R. It. Co., 20 O. S. 214; R. It. Co. v. Schruyhart, 10 O. 8. 116; Gill v. R. R. Co., 27 O. S. 240; It. It. Co. v. Methven, 21 O. S. 586; R. R. Co. v. Cunnington, 39 O. S. 327; Corwin v. It. R. Co., 13 N. Y. R. 42 ; Bradley v. Buff, 34 N. Y. R. 432; Shcpard v. Buff, 35 N. Y. R. 641; Tracy v. II It. Co., 38 N. Y. R. 433. The liability imposed by the act of May 25, 1859, supra, upon railroad companies, for damages which result to domestic animals from the want or insufficiency of fences, road crosssngs, or cattle-guards, or from any careless- ness of tht company or its agents, is not in the nature of a penalty ; and the same liability for neglecting to discharge the duty tc build fences, etc., im- posed by that act, would have arisen by construction, and upon common-law principles, if the statute had been silent on the subject; and the owner of a c >w, who permitted her to rnn at large in violation of the act of April 13, 1865 (62 v. 185), which strayed upon the uninclo.-ed track of a railroad com- pany, and was killed by a train, without the fault of the company or its agents in running the train, is not in a situation to demand compensation, and can not recover from the company damages for the loss of the cow. Railway Co. v. Methven, 21 O. S. 586. But the rule is otherwise where cattle were at large without the omission of reasonable care on tin; part of the owner, and without his fault. Railroad Co. v. Stephenson, 21 O. S. 48. (See the N. Y. notes below.) What is >uch contributory negligence as will defeat a recovery is usually a question of mixed law and fact, to be determined by the jury from all the circumstances of the case and under proper instructions from the court; but where the undisputed facta show that by the exercise of ordinary care a party might have avoided injury, lie can not recover, lty. Co. v. Elliott, 28 O. S. 340. The omission to ring the bell or sound the whistle at public crossings is not of itself sufficient ground to authorize recovery, if the party, notwithstanding such omission, might, by the exercise of ordinary care, have avoided the ac- cident, lb. It is the duty of a traveler upon the highway, when approaching a rail- 384 ROAD LAWS OF OHIO. [dlAP. 14, 4-6 4. Must erect sign-boards at crossings. — Each company must erect, at all points where its road crosses a public road, at a sufficient elevation from such public road to admit of the free passage of ve- hicles of every kind, a sign, with large and distinct letters on it, to give notice of the proximity of the railroad, and warn persons to be on the lookout for the locomotive. 1 5. Damages for not— Such company or person will be liable for all damages sustained in person or property in any manner by rea- son of the want or insufficiency of any such crossing or cattle-guard, or any neglect or carelessness in their construction, or in keeping them in repair: 2 and in damages for all injuries which occur to per- sons or property from neglect or refusal to erect such signs. 1 6. May construct its bridges as toll-bridges ; tolls thereon. — It may so construct its bridges as to answer the ordinary purposes of travel and road crossing, to make use of his senses to ascertain if there is a train in the vicinity, and if, when in full possession of his faculties, he fails to see or hear anv thing, when a prudent man, exercising his eyes and ears, with ordinary care, would have discovered a train in close proximity, and he is thereby injured, he is guilty of such negligence as will prevent a recovery. lb. In an action by a traveler on a public highway, against a railroad com- pany, to recover for injuries by collision with a passing train at a public crossing, alleged to have been caused by negligence in the management of the train, where the evidence lends to show that he did not exercise proper care and caution to avoid the injury, it is competent for him to show that there was no sign-board up, as is required by law, as reflecting upon the ques- tion of his want of care, although the want of such siy;n-board is not alleged as aground of recovery. [Though, as the omission was not charged as a ground of recovery, it would not have been admissible to warrant recovery, p. 629.] Railroad v. Whitacre, 35 O. S. 627. See also pp. 386, 390-4. Where a person familiar with a dangerous railroad crossing, in passing over the same, neglects the exercise of any care to ascertain if a passing train is near, and in consequence of such neglect is injured by a collision witii the train, he is guilty of negligence, and the mere fact that he had forgotten that he was in the vicinity of the crossing will not excuse such neglect, lb. It is tin' duty of a railroad corporation under the common law principles to keep its road at a crossing in safe condition, so that a traveler upon the highway, exercising ordinary care, can pass over the same in safety. Gale v. K. R. Co.. 76 N. Y. R. 591; see 19 Hun. 108. Citizens and railroad corpo- rations have not the same and equal rights, as to the use of the highway at a crossing. The company has the preference, and it is the duty of the citizen to wait until the train has passed. Warner v. 11. Tt. Co., 44 N. Y. R. 465. i \ 3323. 2 } 3321, as amended, 78 O. L. 199. CHAP. 14, 7.] RAILROADS, CANALS, ETC. 385 business, as well as for railroad purposes, and may demand and re- ceive such rates of toll for the passage of individuals, vehicles of all kinds, or animals, as it may fix, subject to the approval of the com- missioners of the county or counties in which such bridge is erected ; but the rates of toll must be uniform, must be printed or paint \ and kept conspicuously posted in or near the toll-house of the brio 1 and may be revised and changed in the first week in each year ; and the company may compound and bargain with any person or party for the use of such bridge, by the month, quarter, or year; but no company must receive toll upon any such bridge if erected within one mile of any toll-bridge previously constructed over the same stream.' 7. Sow railroad may occupy road, street, alley, etc. — If it be neces- sary, in the location of any part of a railroad, to occupy any public road, way, or ground of any kind, or any part of either, the raunici* pal or other corporation, or public officers or authorities, owning or having charge thereof, and the company, may agree upon the man- ner, terms, and conditions upon which it may be used or occupied ; and if the parties be unable to agree thereon, and it be necessary, in the judgment of the directors of such company, to use or occupy such road, street, alley, way, or ground, such company may appro- priate so much of it as may be necessary for the purposes of its road, in the manner and upon the same terms as is provided for the ap- propriation of the property of individuals; but every company which lavs a track upon any such street, alley, road, or ground, will be responsible for injuries done thereby to private or public property lying upon or near to such ground, which may be recovered by civil action brought by the owner, before the proper court, at any time within two years from the completion of such track.' 1 \ 8285. As to condemning toll-bridges, see pars. 149-102, chapter 12; as to toll-bridges generally, see eh ipter 1:'.. 2 g 8283. As to appropriation, sec chapter 18. Sec notes, pp. 399-403. Where a city, under tin; authority given by section 3283 Revised Statutes, granted to a railroad company the right to construct and use its track in a street: Held, that the city is not liable to the owner of a lot adjacent to the street for damages to his property, resulting from the use of the street by the railroad in the manner thus authorized. Dillenbach v. Xenia, 00 O. S. 00. See also next note and notes to par. 10. 25 386 ROAD LAWS OF OHIO. [chap. 14, 8 8. May divert road or stream when necessary. — A company may, whenever it is necessary in the construction of its road to cross a road or stream of water, divert the same from its location or bed; but the company must, without unnecessary delay, place such road or stream in such condition as not to impair its former usefulness; and any or all railroads hereafter constructed, which shall cross any avenue or public highway leading from a city of the first or second class, to a public cemetery of such city, situate within or without the limits of any such city, must be constructed so as either to pass under or over such avenue or public highway, at such elevation or depression, as the case may be, as will allow the unobstructed pas- sage of all wagons, carriages, or other vehicles which it may be neces- sary for any person to use upon such avenue or public highway. 1 1 ? 3284. Under section 13 of the act of May 1, 1852 (50 v. 274), it is the duty of a railroad company to restore a highway, diverted in the construc- tion of its road, to such condition as not to impair its former usefulness, and it is liable for injuries resulting from its neglect to do so; but when the high- way has been fully restored, the corporation is under no obligation to keep the same in repair. Railway Co. v. Maurer, 21 O. S. 421 ; Potter v. Bunnell, 20 0. S. 150. But if, after the restoration of the highway, the railroad com- pany wrongfully encroaches upon it, or impairs its usefulness, it will be held liable for damages resulting from such encroachment or impairment. Rail- way Co. v. Maurer, above. The right of a railroad company to enjoy the use of its road at the cross- ing of a common highway, and the right of the traveling public to use the highway, are co-ordinate and equal, and reasonable care and prudence must be exercised by each, in the use of the crossing, so as not to interfere unnec- essarily witli the other. lb. A corporation owning and operating a railroad which crosses a common highway is under no obligation to remove from the highway obstructions placed o)\ the crossing by a stranger, if the material constituting the construc- tion is neither the property, nor under the care and control, of the corpora- tion, although the existence of the obstruction is brought to the knowledge of its agents ; nor does such obligation exist, although the person so placing the obstruct] >ii be a brake man on the company's road, and the material con- stituting the obstruction be waste manure from the stock-cars of the com- pany, if the hrakeman so placed the manure for his own use, without the authority of the company, and at the time was not acting within the scope of his employment and duty as brakeman. lb. Power given by a charter of a railroad company to construct, its road .across a public highway, upon condition that the same be restored to its former state, "or in a sufficient manner not to impair its usefulness," does CHAP. 14, 9, 10.] RAILROADS, CANALS, ETC. 387 9. Telegraph and telephone companies may occupy road, how. — A magnetic telegraph company heretofore or hereafter created may construct telegraph lines, from point to point, along and upon any public road, by the erection of the necessary fixtures, including posts, piers, and abutments necessary for the wires; but they must not incommode the public in the use of such road. 1 And this ap- plies also to telephone companies.' 2 10. Obstruction of roads by railroad agents and other persons. — If any person, or corporation, or a conductor of any train of railroad cars, or any other agent or servant of a railroad company, obstruct, not authorize the company permanently to appropriate any portion of the public highway by obstructions which materially interfere with the public travel. Railroad v. Commissioners, 31 0. S. 338. Where the diversion of a stream of water from its existing bed or course becomes necessary in the location and construction of a railroad, the power to appropriate the land on or through which to construct a channel for such stream is conferred by section 10 of the general incorporation act (S. & C. 279). Railway Co. v. Bohm, 34 O. S. 114. The provision in section 16 of the corporation act of May 1, 18-32, which requires a railway company to place a highway crossed or diverted •• in such condition as not to impair its former usefulness,'' is a condition inseparable from the right or franchise granted to such company to cross the highway with its railroad, or to divert it from its location. State ex rel. v. Bailroad Co., 36 O. S. 434. While the company continues in the exercise of the franchise, the state has the right to compel it to peform the condition upon which tin; franchise was granted, by petition invoking the equity powers of the court, prosecuted by the attorney-general in the name of the state. lb. The remedy given to the county commissioners by the act of March 7, 1873 (70 O. L. 53), for the obstruction of a state or county road, is cumulative, and does not affect the right of the state to maintain the present action. lb. In enjoining the railway company from using the highway, where it has been diverted by the company from its location, but left in such close prox- imity to the railway as to make it dangerous for public travel, it is proper for the court to prescribe what change in the location shall operate to super- sede the injunction. lb. On allowing an injunction against the company from any further work on or obstruction of the highway, the court may, on final hearing, require the removal of the obstructions already placed thereon, in case the company re- fuse to restore such highway to its former usefulness. lb. See also notes to pars. 1 and 10, and notes, pp. 399-403. 1 1 3454. 2 § 3471. 888 ROAD LAWS OF OHIO. [CHAP. 14, 10 unnecessarily, any public road or highway authorized by any law of this state, by permitting any railroad car or locomotive to remain upon or across the same for a longer period than five minutes, or permit any timber, lumber, wood, or other obstructions, to remain upon or across the same to the hinderance or inconvenience of trav- elers, or any person passing along or upon such road or highway, every person or corporation so offending is liable to forfeit and pay, for every such offense, any sum not exceeding twenty nor less than two dollars, and will be liable for all damages arising to any person from such obstruction, or injury to such road or highway, to be re- covered by an action at the suit of the trustees of the township in which the offense is committed, or of any person suing for the same before a justice of the peace within the county where the offense is committed, or by indictment in the court of common pleas in the proper county ; every twenty-four hours such person or corporation, after being notified, suffers such obstruction to remain, must be deemed an additional offense against the provisions of this paragraph ; and all fines accruing under this paragraph, when collected, must be paid to the treasurer of the township in which the offense was committed, and be applied by the trustees to the improvement of roads and highways therein. 1 l \ 4748. By this section, township trustees are authorized to bring civil actions to recover the statutory penalty for obstructing and permitting ob- structions to remain upon and across public roads or highways authorized by the laws of this state, to the hinderance and inconvenience of travelers or other persons passing along or upon such public roads or highways. Township Trustees v. Tuttle, 30 O. S. 62, 64. The statute giving the cause of action confers jurisdiction over it upon justices of the peace. lb. 62. In actions prosecuted under the provisions of this statute, where the ob- struction is alleged to have been caused by a railroad car, or cars, or locomo- tive', it must be averred in the petition that the public road or highway was obstructed unnecessarily by permitting such railroad car or cars, or loeomo- tive, to remain upon or across the public road or highway for alongerperiod than five minutes to the hinderance, etc. In actions for obstructions to pub- lic roads catfsed by agencies other than railroad cars and locomotives, in de- scribing the manner of the obstruction, the word '■'■unnecessarily'" forms no essential part of the description of the cause of action. lb. It is ii -..valid objection to the jurisdiction of a justice of the peace in this class of cases, that, on the trial, the right of the public to the use of the roadway, as a public highway, may involve, to some extent, the title to the CRAP 14, 11-13.] RAILROADS, CANALS, ETC. 389 11. Company liable for fines against employes.— -Every railroad company or other corporation, the servant, agent, or employe of which, in any manner, obstructs any public road or highway, will he liable to pay all fines which maybe assessed against such serv- ant, agent, or employe for so obstructing the same, and such liabil- ity may be enforced by execution issued against such corporation on the judgment rendered against such servant, agent, or employe. 1 12. Railway to mines, shops, etc., may cross highway. — A person may construct a railway, and run cars thereon, over or under any public highway, to any coal-mine, iron-ore mine, stone-quarry, roll- ing mill, or machine-shop he may own or operate, if he first secures the consent of the owner of the fee of the land where such railway is to cross the highway. But such railway must be so constru* ! as in no way to impede or interfere with the travel on such highway, nor to injure or impair the highway. 2 13. Proa edings when a road is occupied by a canal. — In all cas land at the place of alleged obstruction. As the statute confers original ju- risdiction upon justices of the peace over the cause of action, by necessary implication it vests authority in justices' courts to hear and determine all questions necessary to render a final judgment, lb. See also notes to par. 2, above ; to par. 5 of chapter 5; to par. 71, chap- ter 27, and to par. 146, chapter 12. An action to recover the penalty provided for in this section for unneces- sarily obstructing a public; road or highway by a fence may be maintained before a justice of the peace not only by the trustees of the township, but by any other person suing for the same, the iines accruing um' ction to be applied by the trustees of the township to the improvement of roads and highways therein. Higgins v. Grove (not yet printed). No action can he maintained to recovor the penalty provided for by that section, unless the obstruction therein mentioned amounts to the actual hin- derance or inconvenience of travelers, or of any person passing along or upon such road or highway. lb. In an acti >n brought by a supervisor to recover damages sustained l>\ the traveling public on account of the deepening of a ford on a county road, by the elevation of a dam erected for the use of a mill on the stream crossed bv i In- ford, evidence that the inconvenience to tin- public would have been re- moved by a change in the bed of the stream, which could have 1 n easily made, and which the defendant, tins owner of the land and mill, before the commencement of I he action, offered to make-, but was not permitted to make by the supervisor, is competenl upon the question oi damages to be ascertained ami assessed by the jury. Bisher r. Richards, 9 O. S. 49u. 1 1 47 -i' J - 2 \ 3355. 390 EOAD LAWS OF OHIO. [CHAP. 14, 14 which it shall be deemed necessary by the principal engineer, or act- in"- commissioner, in laying out the line of any canal authorized by the laws of this state, or any work connected therewith, to discon- tinue or alter any public road or highway, such engineer or acting commissioner is authorized to make such discontinuance or alteration ; and upon his drawing up a plat, with a true description, in writing and figures, of all such parts of any public road or highway as he may discontinue or lay anew for that reason, and filing it in the office of the auditor of the county in which such discontinuance or alteration may be situated, the new laid road, as described in said plat, will be deemed a public highway, and <>f the same width of the road so discontinued or altered, and must be entered on the rec- ords of roads, by the county auditor, as such. But the board of public works must, before they obstruct the passage of any part of a highwav, now legally established, open and reasonably work, in order to render it passable, such part of said highway as may be new laid by such engineer or acting commissioner as aforesaid : and the certificate of said engineer or acting commissioner, in writing, that the part of any highway new laid, as aforesaid, is so opened and reasonably worked by said commissioners, will be sufficient for their justification. Every alteration heretofore made by any en- gineer, or acting commissioner, in any public road or highway, on either of the said canals, must, from the time of such alteration, be deemed lawful to all intents and purposes. 1 14. When private crossings mud be built. — A person owning fifteen or more acres of land in one body through which any such railroad passes, and which is so situate that he can not use a crossing in a public street, mad, lane, or highway, in passing from his land on one side of the railroad to that on the other side without great in- convenience, the company or person operating the road must, at the request of the land-owner, within four mouths after such re- quest, at the expense of such company or person, construct a good and sufficient private crossing across the railroad and the lands oc- cupied by the company, between the two pieces of land of the land- owner, to enable him to pass with a loaded tram, and over which he will have the privilege of passing at all times when such company or person is not using the railroad at the crossing, or so near thereto as to render crossing thereat dangerous. 2 1 \ 77 2 g 3327. CHAP. 14, 15-17.] RAILROADS, CANALS, ETC. 391 15. When land-owner may build it at company's expense. — If such company or person neglect, for four months after request by any such land-owner for that purpose, to construct a good and sufficient private crossing as provided in the preceding paragraph, such land- owner may, after having- given reasonable notice to the agent of the company for receiving and shipping freight at the station on the railroad nearest to the land where it is proposed to construct such private crossing, of the time when such land-owner will proceed to construct such crossing, enter upon the lands of the company, at any point he may desire between the two pieces of his land, and construct a good and sufficient private crossing; and such company or person will be liable to him for all the reasonable expense thereof, not exceeding the sum of fifty dollars ; and he may recover the same in an action against such company or person, before any court having jurisdiction thereof. 1 1G. When tiro 'preceding paragraphs do not apply. — The provisions of the two preceding paragraphs relating to fences and private cross- ings do not apply to any case in which compensation for building a private crossing has been or may hereafter be taken into considera- tion, and estimated as a part of the consideration to be paid for the right of way, so far as the right to private crossing, has been or may be settled or paid for; nor can said paragraphs be held to affect, in any manner, any contract or agreement between any railroad company or person having the control and management of a rail- road, and the proprietors or occupants of lands adjoining, for the construction and maintenance of cattle-guards, and railroad cross- ings. 2 17. Right of land-owner to use culvert, etc., for cattle-way. — Any owner of land through which a railroad is constructed, and upon which there is a culvert, water-way, or opening through the em- bankment of the railroad, of sufficient height for such purpose, may uhio : The undersigned, tax-payers of said county, represent that the gen- era] direction of Crook Creek, where it crosses the road, near the residence o\ A. P.. in township of said county, is from east to west, nearly at right angles with the line of said road; but that, owing to the rapid current of said creek when high, and a Lend toward tin- south in its channel, above the bridge over said stream at the place mentioned, its waters approach said bridge in a direction almost par- allel with the line oi said road, and in such a way as to make it cut in behind the upper wing wall on the south end of said bridge, and as to strike the north abutment of the bridge, there washing out a deep hole an. 1 threatening to undermine that abutment. That bend also takes said stream through a piece of timber land, where its channel is much obstructed by fallen trees, causing the waters of the stream to overflow its banks, and wash along and to overflow the I to its great injury; about rods below said bridge, this stream bend ly toward the north-east, in such n way that, about — said bridge, its channel is only a few feet from the line of sa id ' and there the ground is such that, at each flood time, the an cuts it away, so that, if nothing is done, it will soon wash away the road. If, at a point about rods nearly due east of said bridge, at a all sycamore on the bank of said stream, a new channel of proper aenced, and thence extended westwardly in a straight line nidge to a point about rods below it, where said new cha] Lga in m eet the present channel of the stream, all of the Q g tendencies of said creek would be entirely overcome. Your petitioners respectfully pray that said channel may be straight- ened as indicated above, and they estimate that it would cost al dollars to make said new channel. [Add, if so :~] The ises- tim , ... nts made by them [or, by F. S., engineer for them], whi | h a t said new channel would be rods long, and would make necessarv the removing of about - cubic yards of earth, at cents per cubic yard. [Signature or signatures.'] 10. 1 r appointed; his duties.— Upon receiving said petition, the commissioners must forthwith appoint a competent engineer, resident of the county, who must go upon the line of said creek or 394 ROAD LAWS OF OHIO. [CHAP. 15, 11-1G water-course, and examine it carefully, and make his report to the county auditor in writing, stating whether he deems the straighten- ing or cleaning out of said creek or water-course will be beneficial for the protection of any bridge, state or county road, or other road in the control of the commissioners; and if so, to give, in his report, an estimate of the amount of money required to perform the same. 1 11-14. Formof appointment. In the mutter of straightening Crook Creek. [See note 2, pp. 22, 417.] A petition having been this day received by this board from the countv auditor, signed by A. P. [and others, if so], stating [here may fol- low the statenu nts as in the petition : or say, for instance], in substance, that Crook Creek, because of certain bends and obstructions in its channel near its place of crossing the road, in township, is damaging said road and the bridge over said stream at that place, all of which damages would be stopped if said channel were straightened from [give lin of new channel proposed, as in petition] , said petition also asking that said straightening be done. It is therefore ordered that F. S., believed to be a competent engi- neer, resident of this county, be appointed and directed to go upon the line of said creek, and examine it carefully, and make his report to the county auditor in writing, stating whether he deems the straightening and cleaning out of said creek will be beneficial for the protection of said bridge or road, or both; and if so, to give, in his report, an esti- mate of the amount of money required to perform the same. 15. How engineer to > proceed. — The law docs not provide in detail as to the proceedings of the engineer ; but no doubt the command of the law to do a. certain thing implies the power to procure such means as are necessary and customary to do that thing. If neces- sary, the engineer can therefore employ chain carriers and a marker if needed, as in ease of other surveys under the road laws. In the absence of provisions directing his proceedings, he should follow the course pointed out in analogous cases, as far as applicable, and if he calls such assistance as mentioned above, they (and he) should be sworn, etc., as directed in paragraphs 20-28 of chapter 1. 16. If he reports in favor of the straightening petitioned for, he should make a plat of the ground through which the new channel 1 g 867. CHAP. 15, 17-22.] STRAIGHTENING BTVEES, ETC. 395 is to run, and also a profile of the channel, and such other descrip- tions, explanations, or drawings (as cross-sections, etc.) as may en- able proper specifications to be prepared, and intelligent bids to be made for the work. 1 17. llr may follow the forms of report, etc., found in paragraphs 55-71 of chapter 23, so far as applicable. 18 Work to be let, when, how, etc.— At the first regular session after receiving the report, if it recommends the straightening or cleaning oul of such creek or water-course, and the commissioners deem it advisable, they must advertise the letting of the work at least twenty days, and let it to the lowest responsible bidder, taking from him a bond in a sum fixed by them, payable to the state, with good sureties, for the performance of the work in a proper manner and within a time therein named; but no bid can be accepted that exceeds the estimated cost in the engineer's report. The commis- sioners may reject all bids. 2 19. For form of advertisement adaptable to this case, see para- graphs 139-142 of chapter 23. 20. For form of bond also adaptable to this case, see page 354, chapter 12. A proper contract should be entered into, and the bond should be conditioned for the performance of the work according to the contract, as in the case just referred to. 21 Paid for oat of bridge f und. -All costs of letting and of doing the work and all other expenses in behalf of such straightening of creeks or water-courses, must be paid out of the bridge fund of the county, when the work is accepted and approved by the commis- sioners, and they direct the payment. 15 Subdivision 2. Removal of drift from kiter or other water-course for protection OF KOAl'S AM> BRIDGES. 22. Additional powers of commismners, as to drift, etc.— The law further provides, as stated in this subdivision, that the commission- ers of any county are authorized to cause to be removed from any river or water-course within their county, any drift or timber for the better protection of roads and bridges in such county. 4 ^ i As to such descriptions, etc., see chapters 8 and 23. 2 \ 868. n n g69 i \ 45G2. dee note to par. 1 of this chapter. 396 ROAD LAWS OF OHIO. [chap. 15, 23-31 23. But a petition by tax-payers mast first be filed. — When there is filed with the county auditor a petition signed by five or more tax- pavers of the county, setting forth the benefits to be derived from removing such drift and timber, the starting point and terminus, with a description of the river or -water-course to be cleared, and amount of drift and timber to be removed, together with an esti- mate of cost to be incurred to complete the work, the auditor must at the next regular or called meeting of the commissioners, notify them of the filing of the petition. 1 24. Form of petition and estimate. — The petition may be substan- tial^ the same as the one in the preceding subdivision. 25. Appointment of viewer. — The commissioners, upon receiving such notice, must forthwith appoint some disinterested person resi- dent of the county, who must go. upon the line of such river or water-course, and carefully examine it. 2 2G. Form of appointment and how to proceed. — Follow the form in paragraphs 11-14, and see the suggestions of paragraphs 15-17. 27. Viewer's report. — This viewer must make his report to the county auditor in writing, stating whether he deems the clearing of the river or water-course important and beneficial for the protection of any state or county road or bridge, and if so, he must also make and furnish an estimate of the amount of money required to perform the labor. z 28. Proceedings on report. — The auditor must, at the first regular or called meeting of the commissioners, after receiving the report from such person, notify the commissioners of the same ; and if the report recommends the clearing of the river or water-course, the commissioners must proceed to let the same at public sale to the lowest bidder, whose bid is not twenty per cent above the estimated cost, and who lias no official duty to perform about the work, and take from him a bond payable to the state, with good and sufficient sureties for the performance of the work within a specified time. 3 . .'. done. — On completion of the work thus let and accepted by the commissioners, the auditor must issue a certifi- cate to the person performing the work for the sum due. 3 30. As to forms, etc., see pa 19-20. 31. Costs and expenses to be paid out of bridge fund. — All the costs 12 4563. *l¥Mi. 3 M565. CHAP. 15, 32.] STRAIGHTENING RIVERS, ETC. 397 of letting and clearing such river or water-course, ami all the other necessary expenses which accrue, must be paid out of the county treasury, out of the bridge fund, on the order of the county auditor. 32 Reference to other and simitar provisions.— -For provisions relat- in „. fc0 th e removal of drift, etc., from streams and obstructions ther - in see chapter 26. As to obstructions in county .inches, see para- graphs 2llo-2o2 of chapter 23 ; in township ditches, see paragraphs 1 36-182 of chapter 24. _ 1 1 4566. found in subdivision 2 of chapter 11. For provisions as to cutting Canada thistles and other objectionable weeds in certain cities, see note on page 130. 398 ROAD LAWS OF OHIO. [CHAP. 16, 1-2 CHAPTER XVI. HIGHWAYS IN MUNICIPAL CORPORATIONS. Subdivision 1. Control; dedication. Subdivisions. Vacation of streets by council Subdivision 3. Vacation' of streets by courts. Subdivision 4 Labor upon streets; tax. Subdivision 5. Special provisions as to roads, etc.. in hamlets. 1. To what extent considered here. — The streets and aven nes of cities and villages, being an important part of the higways of the state, and in many cases being either a part or the continuation of roads or turnpikes, or the connecting link between them, can not be en- tirely omitted from this volume, and will be treated as to their relations above alluded to. But it is not designed to include all the statutory provisions as to the lighting, platting, sidewalks, assess- ments relating thereto, etc., nor the numerous and voluminous special provisions for various cities. 1 There are other provisions concerning turnpikes, etc., in cities and villages, which may be found in subdivision 2 of chapter 11. For provisions as to cutting Canada thistles and other objectionable weeds in certain cities, see note on page 130. Subdivision 1. Control ; dedication. 2. Council control* streets, etc. — The council has the care, supervis- ion, and control of all public highways, streets, avenues, alleys, sidewalks, public grounds, and bridges, within the corporation, and must cause them to be kept open and in repair, and free from nuisance. 2 i These matters may all be found considered in Judge Peck's "Law of Municipal Corporations." z 3 -i.lO. In any city of the second or third grade of the second class, the council may, by ordinance, require the name- of streets to be marked at their corners, and numbers to be legibly placed on buildings, by the owners of property abutting on any street, prescribing the style and manner of so CHAP. 16, 3.] HIGHWAYS IN MUNICIPAL CORPORATIONS. 399 3. Opening streets, etc. — When it is deemed accessary by the coun- marking the names of streets and placing the numbers on buildings, and specifying the time wilt, in which this must be done, which can not be less than thirty days alter the taking effect of the ordinance. Notice of such requirement must be published in one or more newspapers printed and of general circulation in the city, for at least ten days; and in case the owner (if any property within the limits specified in the ordinance and notice, fails to comply therewith, the city may have the work done and assess its cost on the lots or lands on which they are placed, and collect the cost in the same manner as other assessments. Any such city may provide, bj ordinance, a fine and imprisonment, or both, to be imposed on any person who willfully obstructs or interferes with any person employed by the city so to place such names or numbers, or who tears down, removes, or defaces the same. \ 2641. A municipal corporation may, in a proper case and within a reasonable time after it is erected, summarily abate a nuisance erected upon a public street, if it be such as interferes with and prevents the free exercise of the right on the part of the public to the use of the easement. Even then the delay of the public authorities may operate as a waiver of the right to do so. In such a ease, the public must resort to their action to recover the posses- sion of the street, and to abate the nuisance also. Evans v. Cincinnati, 2 Handy, 236. In no case, however, unless the obstruction impedes the free use of the street-, can the public resort to this summary mode of abatement without process. lb. As to damages for injury to a building, resulting in an injury to owner's business, see Cincinnati v. Evans, [> (.). S. 594. The city council have power to grant to a railroad company the right to lay a track in a street, and owners of property abutting thereon can not in- terfere, unless private rights are interfered with. Sargent v. O. & 31. 11. It. Co., 1 Handy, 52. Where, in an action for damages, by the neglect of a city to keep a street in repair, by which the plaintiff sustained a severe personal injury, the jury find a verdict for a substantial sum, so that it is evident that they found negligence, hut the sum is plainly insufficient, the court will set the verdict aside. Baily v. Cincinnati. 1 Handy, 4;"8. But when the jury find one cent and damages, in such a ease, it i< a sub- stantial finding for the defendant, and the verdict will not be set aside, when negligence on the part of the city was not plainly shown. McMabon v. Cin., Sup. Ct. of Cin , general term. IIagans, J., Storer and T.\rr, .J.J., concurring. MS. In a S'.iit against nearly two hundred defendants, for the purpose of estab- lishing the boundaries of a street, which it was alleged had been lost by lapse of time, the destruction of landmarks, and other causes: Held, upon de- murrer to the petition, that '-the relief asked here was tie determination of 400 ROAD LAWS OF OHIO. [CHAP. 16, 3 cilof any municipal incorporation to open, extend, straighten, narrow, the width of the street through the whole of two miles. The strip of land two miles long, sixty feet wide, is a unit. . . . Hence, every defendant has a common interest in every part of the relief asked for." Also, that the bill would lie to prevent a multiplicity of suits. Cincinnati v. Morris, Ham. Dist. Ct., MS. 187-1. The plaintiffs brought suit against Ryan & Co., contractors, Long and B'iedeldev, their sureties, and the city of Cincinnati, for injuries to horses, wagon, and harness, through the want of a proper guard for an excavation for a sewer. Held, that the sureties were improperly joined, and that the plaintiffs must elect between the contractors and the city, which party they intend to pursue. Seelen v. Ryan, 2 Sup. Ct. Hep. 158. A city ordinance imposing, in general terms, a penalty on any person for incumbering or obstructing any part of any street, lane, or alley, etc., rationally construed, has manifest reference to nuisances; in other words, to incumbrances or obstructions which, but for some special license, would be unlawful. Clark v. Fry, 8 O. S. 358. Any obstruction in a public thoroughfare, calculated to produce an injury to persons passing, is in itself a nuisance. The object of the obstruction, and the precautions taken to prevent injury, may prevent the character of a nuisance attaching; but if the object be illegal, or the proper precautions are not taken, then that is its character. Mcllvaine v. Wood, 2 Handy, 166. When an obstruction is created in a sidewalk, such as an area, though the object is legal, it is a nuisance, unless the proper precautions are taken in its construction to prevent injury; and if Jhis defect is in the construction, and not in the mode of use, the landlord is responsible. lb. As to contract between a village and railroad as to use and repair of streets by latter, etc., see 11. It. v. Carthage, 36 O. S. 681. Where a village council and a railway company agree, under the statute, as to the terms upon which the company may use the streets of the village for its road, whereby the company bound itself to grade and gravel the streets so used, in a manner "to the acceptance of the council :" Held, that a subsequent ordinance repealing the contract ordinance, passed with in- tent to rescind the entire contract, being inoperative, without the assent of the company, to rescind the grant of the right of way, is also inoperative tn release the company from its obligation to grade and gravel streets. C. & S. Railway Co. v. Village of Carthage, 36 O. S. 631. That upon the failure of such company within a reasonable time to grade and gravel the streets as per contract, a right of action accrues to the village without special notice, request, or demand on the company to perform its contract. lb. It is not essential to the right to maintain such action that the city should CHAP. 16, 3.] HIGHWAYS IN MUNICIPAL CORPORATIONS. 401 or widen any street, alley, or public highway within the limits of such corporation, the council must provide by ordinance for the have established, by ordinance, other than the contract ordinance, the per- manent grade of such streets. lb. Under the statute, the exclusive control of the streets is in the council of villages, and directions by the mayor concerning their improvement are wholly without authority, lb. Where, by annexation of contiguous territory, a county road is brought within the limits of a municipal corporation, the exclusive control over it vests at once in the corporation. Ridenour v. Saffin, 1 Handy, 464. When a municipal corporation has condemned and taken land for a street, it will be restrained from disposiug of the land for other purposes, on the application of one of the owners of adjoining property. Strader v. Cincin- nati, 1 Handy, 446. The special interest of a person who has surrendered or acquired a valu- able private right under such an appropriation will enable him to maintain a suit against the corporation, though the wrong is a public injury, lb. Where the statute requires that a municipal corporation "shall cause the streets to be kept open and in repair, and free from nuisances," a duty is im- posed upon the corporation ; it will be liable to any person sustaining injury by reason of a breach of such duty. Vandyke v. Cincinnati, 1 Disney, 532, 536, Spencer, J. The negligence must be such as would have warranted an indictment at common law. ''Trifling obstructions or want of repairs mux occasionally work a serious harm; yet such accidents can not ordinarily bo foreseen or guarded against, and do not lay the foundation of an action. To require the city, at all hazards, to remove or correct them, or be liable for their conse- quences, would be not only to make the city an insurer of the lives and safety of all its people who pass on the streets, but to ask the performance of an impossible duty. lb. 537. Permitting snow and ice to remain on the pavement is not a violation of this duty. lb. 537. Nor does the fact that it was allowed to remain in violation of an ordi- nance requiring the property holder to remove the snow or ice, cr sprinkle it with sand or some other substance, under a penalty, render either the city or the person in default liable to the party sustaining the injury, lb. 533, 534. In an action for damages sustained by a public nuisance, special damages must be shown, differing not merely in degree, but in kind, from the rest of the community. Merely enhanced suffering of the same kind will not an- swer. Farrelly v. Cincinnati, '2 Disney, 516. Damages can not be claimed for the injury suffered from continued use 26 402 ROAD LAWS OF OHIO. [CHAF. 16, 3 same; such ordinance must briefly, and in general terms, describe the propertv, if any, to be appropriated for such purposes ; and the proceeding- for such appropriation must be as provided in chapter 19 of this book. 1 of a highway known to he out of repair, unless it is shown to be the only road that could be resorted to. lb. The fact that a traveler is obliged to adopt a circuitous route to his desti- nation, whereby he suffers injury to business, does not constitute special damage. lb. Nor does the fact that an omnibus proprietor has lost custom by being forced to change his route. lb. Where territory, including a public road connecting with the streets of a city, is annexed to the city, and the road continues to be used as a street or thoroughfare, it thereby becomes a "public highway" of the city within the meaning of section 439 of the municipal code, although it has never been accepted and confirmed by an ordinance specially passed for such purpose, as provided in section 440. Steubenville v. King, 23 O. S. G10. The right of transit in the use of public highways is subject to such inci- dental, temporary, or partial obstructions, as manifest necessity requires, and among these are the temporary impediments necessarily occasioned in the building or repair of houses on lots fronting upon the streets of a city, and in the construction of sewers, cellar-drains, etc. These are not invasions, but qualifications of the right of transit on a public highway, and the limitation on them is, that they must not be unnecessarily and unreasonably interposed and prolonged. Clarke v. Fry, 8 O. S. 358. Such temporary obstructions upon the highway, when guarded with due care to prevent danger to the public, and not unnecessarily extended or con- tinued, are not nuisances, and do not require a license from the municipal authorities to legalize them ; although suitable regulations by the public au- thorities requiring such obstructions to be properly guarded, and to prevent them from being made in an improper manner, or continued unreasonably, are highly proper. lb. "Where an obstruction is created in a state or county road, and the cor- porate limits of a municipal corporation are extended over a part of the road so obstructed, the count}' commissioners can not maintain an action tor the obstruction of that part of the highway which is within the limits of the corporation. Lawrence R. 11. Co. v. Commr's, 35 O. S. 1. Where, on a plat at the junction of two streets, is a small lot of about one-tenth of an acre, marked on the plat as ,; public ground,'' but not hirg3 em nigh to be of any use as a park, and is used by the city as a place for the office of a street commissioner, being about all it is fit for, such use will not be a nuisance or obstruction. It was not dedicated as a street. (Cuy. Dist. tit., 1878.) Sargent v. Cleveland, 1 Clev. Kep. 122. u g2642. CHAP. 16, 4.] HIGHWAYS IX MUNICIPAL CORPORATIONS. 403 4. Wlim turnpike or plank-road becomes street.— When any turnpike or plank-road terminates within the corporate limits, any portion of it so included bee »mes n public street of the corporation, and must be maintained and kept in repair as other streets; and the council may cause the same to be condemned and appropriated for use as such, according to the provisions of chapter 19 of this bo ok. 1 ■->, -j.;j:5. The extension of city limits poasto include partofaturnpike-road does not extinguish the rights of the turnpike. The municipal code, section 510, that the part of a turnpike terminating in a city shall becomea public street, and shall be kept in repair as other streets, construed in connection with sec- tions 599, 600, shows that the mandatory words are to be construed as per- missive, and that, until appropriation proceedings, section 599 governs the relations of the city and the turnpike company. Where a city, without condemning such portion of the turnpike-road, seek.- to change its grade and improve it as a street, the turnpike company is not limited to redress in damage?, but is entitled to injunction. (Sup. Ct., general term, 1875.) Turnpike Co. v. Cincinnati, 4 Rec. 325. County commissioners may be required to levy a general tax to improved road, although the road is partly within the city. State ex rel. v. Comrn'rs, 85 O. S. 408, 4G8. It is not error to admit as evidence in a case where a city is seeking to condemn a portion of a turnpike lying within the city limits, a statement of the net revenue derived from the tolls taken on that portion of the turnpike, nor is it error in such a case to permit one having personal knowledge of the road, its income, and its probable future, and also large experience as to in- vestments in stocks, bomb, and property, to give in evidence his opinion of the rate at which the income of such road should he capitalized. Cincinnati v . Scarborough (Ham. Co. Dist. Ct.), 5 Cin.Law Bui. 77. Under the municipal code of 18C9, a city could not condemn only a portion of the part of a turnpike lying within its corporate limits, hut must condemn ail of the turnpike within its corporate limits, if any. Turnpike v. Cincin- nati (Ham. Co. Dist Ct.), 2 Cin. Law Bui. 126. An assessment for the improvement of part of a county turnpike lying within the city limits is valid, even though the county commissioners reluse their consent to such improvement. (Per Yaple, J.) Scully v. Cincinnati, Sup. Ct. of Cin., MS.. 1ST I. Where part of a county turnpike comes within the limits of the city by reason of the annexation of the territory containing the same, the control of that part of the road passes to the city. (Per MukdoCK, J.) Cincinnati v. Comrn'rs of Ham. Co., Ham. Con:. Pleas, MS., L874. The county commbsioners being authorized by an act of the leg.slature to collect tolls on a turnpike-road for the purpose of keeping the road in repair, 404 ROAD LAWS OF OHIO. [CHAP. 16, 5-9 5. Cost of improving turnpikes, etc. — When any portion of a turn- pike or plank-road, or its control, is required by a municipal corpo- ration, or when any arrangement is made with the company owning it for its improvement or repair, provisions for the cost, and for im- proving and keeping such turnpike or road in repair, must be made, as is provided with respect to the streets and other highways of the corporation. 1 6. No streets, alleys, or roads through lands of benevolent institutions. No streets, alleys, or roads can be laid out, or established through or over the lands belonging to any of the public institutions of the state, without the special permission of the general assembly. 2 7. Tax on infirmary farms for free turnpike. — The commissioners of any county having an infirmary farm within the limits for taxation of any free turnpike-road, may levy a tax on the taxable property of the county, in addition to other taxes, for the purpose of paying the equitable proportion of taxes which would be levied on siid farm, if it was subject to taxation as other property within the bounds of any free turnpike road, under the laws of the state authorizing the construction of free turnpike roads, and apply the money arising from such levy to aid in the construction of such road. 3 This is believed to apply to all kinds of free turnpikes. 8. Remedy for neglect to keep turnpike, etc., in repair. — If a munici- pal corporation condemn any portion of a turnpike or plank-road, and fail to keep the portion so condemned in as good condition and repair as is required by the charter of the company, the directors of the company may, by writ of mandamus, compel the corporation to perform that duty. 4 9. How turnpike or plank-road condemned for street purposes. — If any city has extended or hereafter extends its limits so as to include therein a portion of any turnpike or plank-road, without purchasing or condemning it, the council must, within six months are not authorized to continue the collection of tolls within the city limits, after the annexation to the city of territory containing part of the turn- pike; for the city is required by law to keep all highways within its limits in repair, and the necessity for the collection of such tolls ceased by reason of Iho annexation, as did the jurisdiction of the county commissioners over the road. lb. 1 § 2644. 2 §625. 3 § 916. * I 2645. See " 31 O. S. 588 " in notes to par. 58 of chapter. 11. CHAP. 16, 10-11.] HIGHWAYS IN MUNICIPAL CORPORATIONS. 405 after the mayor is notified in writing that such company demands compensation therefor, proceed in the manner prescribed in chapter 19, to cause such portion of such turnpike or plank-road to be con- demned for street purposes; on failure of such council so to proceed the president of such turnpike or plank-road company, if author- ized by its directors, may file an application in the court of com- mon pleas of the proper county, setting forth said facts, and asking that the value of such portion of the turnpike or plank-road may be assessed by a jury. The cause must be conducted to final judgment in the manner provided in said chapter, so far as it is ap- plicable ; and such city must pay the compensatian awarded by the jury, with interest, and costs, in such proceeding, within one year after date of the rendition of the verdict. When the compensation awarded has been paid, the title to such portion of such turnpike or plahk-road vests in the city ; and for the purpose of providing means to pay for the same, the city council of any city of the first or second grade of the second class, may levy a tax in addition to the amount now limited by law. 1 10. Adaptation of turnpike or plank-road to corporation uses, etc When the road of any turnpike or plank-road company passes through or terminates in any municipal corporation, the council or trustees have power, with the consent of the company, to make any improvement or repair of such road, additional to the improve- ment or repair required by law of the company, that, in the opinion of the council or trustees, will better adapt such road to use as a street of the corporation. 2 11. Right of toll not to be impaired. — The right of any company to take toll at any toll-gate established in the corporation must not be impaired by any thing contained in this chapter, except where the road of the company has been duly appropriated, and compensation made therefor, or the rights of the company in the road have been surrendered by agreement. 3 1 \ 2640. For form of application readily adapted to this case, see pars. 7- 17, chap. 19. 2 \ 2647. 3 g 2648. No existing right of a turnpike company to charge and collect toll for that portion of its road within municipal limits and eighty rods be- yond, is taken away by section thirty- four of the turnpike law (1 S. & C. 295), which prescribes that the company is not authorized to erect or keep 406 ROAD LAWS OF OHIO. [CHAP. 16, 12-13 12. Use of National road by city or village as street. — The council of any city or village through which the National road passes may, after filing with the county commissioners an agreement, in writ- ing, authorized by the council, and signed by its president, binding itself to keep such road in such repair as is contemplated by the act or acts of congress ceding to the State of Ohio the jurisdiction and control of such portion of said road as lies within this state, take under their care and control so much of the road as passes through the corporate limits of such city or village, and use and occupy the same as a street or streets for such city or village ; and when such road is so taken, it must be kept in the repair aforesaid, at the proper cost and expense of the city or village. 1 13. Dedication of streets; acceptance by council necessary. — No street or alley which has been or may be dedicated to public use by the proprietor of ground in any corporation, will be deemed a public street or alley, or, under the care or control of the council, unless the dedication is accepted and confirmed by an ordinance specially passed for such purpose. 2 up any toll-gate, or receive tolls, within the corporate limits, etc., or within eighty rods of such limits. Turnpike Co. v. Springfield, 27 Ohio St. 584. A toll-gate, properly located outside the prescribed boundaries may charge and collect toll, not only for the eighty rods leading to the city limits, but for such portion of the road as is lawfully within the city limits. lb. A contract between a turnpike company and a city, allowing the former to make a portion of its road within the limits of the latter, and collect tolls thereon, is to be construed with reference to the laws providing for the loca- tion of toll-gates. And the company having a toll-gate properly located may collect tolls thereat for the portion of the road within the city, if the contract be not otherwise objectionable. lb. 1 ? 2649. 2 1 2G50. A widow is not entitled to dower in property dedicated by her husband to public use. Gwynne v. Cincinnati, 3 Ohio 24. This section is not intended as a limitation upon the general powers of the corporation for opening and improving streets, but as a restriction to prevent the vesting in the corporation the title to streets and alleys, and thus charg- ing it, without its consent, with the duty of keeping them open and in repair. Wisby v. Honte, 19 (). S. 238. The passage of an ordinance recognizing the street by name, and ordering and making an improvement, is an acceptance or adoption of the street by OHA.P. 16, U.] HIGHWAYS IX MUNICIPAL CORPORATIONS. 407 14. Pwoer of villages to procure material to improve streets.-— The council- of vill ig is, where material for gra veling and macadamizing the corporation ; and tho right, of the corp .ration Lo its care, supervision, and control, is not impaired by this section. I b. Existence of a gran toe not essential to validity of dedication. Brown v. Manning, 60. 208; Bryant v. McCandless, 7 O. (2 pt.) 135; W ilham* v. l'res. Soc, 1 O. S.478. Proof of an alley provided for the use of the adj .ining proprietors is not proof of ? public alley. Satchell v. Doram, 4 O. S. 542. A dedication of -round for public uses .nay be made in Ohio, either under the statute or according to the rules of the common law. Pulton v. Mehren- feld. 8 O. S. 440. When a valid dedication of a street has been made in cither form, an action may be maintained by the proper municipal corporation to recover the pos- session from one who wrongfully withholds it. lb. \ statutory dedication operates to transfer the estate by way of grant, re- quiring no assent on the part of the public, and to be effective as a statutory dedication, the forms required by the statute, as to the acknowledgement and recording, must be complied with. lb. To constitute a valid dedication at common law, there must be not only an intention to dedicate, and an actual dedication to public uses by the owner, but also an acceptance of such dedication by the public. All these may be shown by the acts of the parties and the surrounding circumstances. lb. A defective dedication, under the statute, is evidence as an act in pais of a dedication at common law by the owner. lb. The public may accept a portion of a street dedicated at common law, with- out the whole. As to each portion, the question of an aeeeptance is a question of fact, to be determined from the surrounding circumstances. lb. And sc, Williams v. Pres. Soc, 1 O. S. 478; Brown v. Manning, 6 0.298; Lockland r. Smiley, 26 O. S. 94. Mere silent acquiescence of the owner of land to the use of a public road across it for a period of less than twenty-one years is not conclusive proof of a dedication thereof to public uses, but only evidence, more or less signifi- cant, tending to prove such dedication. Penquite v. Lawrence, 11 O. S. 274. It'is error°in a court to charge the jury, "substantially, that such use was, as a matter ol law, a dedication, and not mere evidence of a dedication to be weighed and considered by them:' lb. '277. Use, by a municipal corporation, of property which it holds by absolute title in fee, for a period of forty years as a market space, does not constitute a dedication of the land to the public for market purposes. The corporation was simply exercising its proprietary rights therein. Gall v. Cincinnati, 18 O. S. 563. When commissioners in partition lay out -rounds in a city into lots abut- ting on a street, which they also declare, in their report, to be dedicated and 408 ROAD LAWS OF OHIO. [CHAP. 16, 14 the streets must be transported by rail, have like power with county set apart for public use forever, and the parties take possession of their re- spective allotments under the petition, the parties and their privies, as be- tween themselves, while the partition subsists, will be estopped from ques- tioning the existence of the street; and after they have allowed the city to take possession and improve it, the estoppel becomes equally effective between them and the city. Wisby v. Bonte, 19 O. S. 238. Making a plat of lots and alleys, with a design of recording it as an addi- tion to a town, will not, of itself, make a dedication of the streets and alleys to the public. Bailey v. Copeland, Wright, 150. When a road has been laid out from point to point, and opened and used for along time, upon ground different from that upon which the line of the road was actually run, the traveled road is the public highway. Taylor v. Bailey, Wright, 016. Appropriating property by the exercise of the right of eminent domain for a street is a dedication of it to that special use, which can not afterward be recklessly rescinded. Strader and Hart v. Cincinnati, 1 Handy, 440. Where a subdivision of lots is made and recorded without acknowledg- ment, and lots sold and conveyed by the numbers on the plat, which shows the lots so numbered to be bounded by a street or alley, though the fee would not vest in the city, such acts would be sufficient evidence of an intention to dedicate such streets and alleys, which intention, when accepted by the. city, or by u>e on the part of the public, would become complete. Uoren v, Hor- ton, 1 Disney, 401. As to what acts operate as a dedication, see also Brown v. Manning, 6 O. 298; Le Clercq v. Gallipulis, 7 O. (1 pt.) 218; Lebannon v. Warren Co., 9 O. 80; McLaughlin v. Stevens, 18 O. 94; Williams v. Pres. Soc, 1 O. S. 478, 509. Where an old road ran through property, and the owners in a partition plat have straightened the lines of the road, and have stood by and seen an improvement made in accordance with the lines so laid down, they are es- topped afterward to set up such variation from the old road as a defense to the assessment. Strohman v. Hutchins, Ham. Dist. Ct., MS. When the owner of land dedicates a strip of ground twenty-five feet wide, adjoining the land of his neighbor, on condition that his neighbor shall dedi- cate a like strip from his land, so as to make a street fifty feet in width, and immediately open his part of the street to public use, and permits it to be used by the public as a street for eighteen years, the condition is waived, and the dedication absolute, although the neighbor had refused to dedicate; and the council had a right to improve it as a street, and assess the cost of the improvement upon the property abutting thereon. Lloyd v. Hulbert, 1 Cin. Sup. Ct. Rep. 228. Where a contract provides for the improvement of a dedicated street which had not been previously accepted by the council, such contract for its CIIAP. 16, 15.] HIGHWAYS IN MUNICIPAL CORPORATIONS. 409 commissioners in case of turnpike roads, 1 as stated in paragraphs 32 and 33 of chapter 27. Subdivision 2. Vacation of streets by council. 15. Vacation of streets, change of name, etc. — The council of any city or village, on petition by any person owning a lot in the cor- poration, praying that a street or alley in the immediate vicinity of such lot may be vacated or narrowed, or its name changed, may, upon hearing, and upon being satisfied that there is good cause for such change of name, vacation, or narrowing, that it will not be detrimental to the general interest, and that the same should be made, declare by ordinance such street or alley vacated, narrowed, or its name changed. 2 improvement constitutes an acceptance of the dedication on the part of the village. C. & S. Ry. Co. v. Carthage, 36 O. S. 631. The statute of limitations runs against a municipal corporation. Cincin- nati v. First Pre«. Ch., 8 O. 310; Williams r. Pres. Soc., 1 O. S. 478, 510 ; Cincinnati v. Evans, 5 O. S. f>04 ; Lane v. Kennedy, 13 O. S. 4:2. A condition in a deed of dedication exempting from assessment the abut- ting lots for the improvement of the streets dedicated is invalid. "While the public Lad power to accept the dedication, it had nopower to accept the con- dition. The deed takes effect, but the exemption is void. Richards v. Cin- cinnati, 31 0. S. 506. The owner of land who allows the construction and use of a public 1 canal through bis land-, although claiming damages therefor from the beginning, will, after such occupation and use for a period of years, be deemed to have originally consented to the dedication to such use, and be estopped from en- forcing bis claim to the possession of the land so used as such public highway. If tho owner's intention clearly appears, the use of the way for compara- tively a few years is sufficient to establish the right of the public. Pierson v. Canal Co., 2 Disney, 100. i§2651. 2 1 2652. Misuser of dedicated property does not work a forfeiture. A forfeiture only occurs when the uses are obsolete, or impossible of execution. "The uses declared by the alleged dedication are neither obsolete nor impos- sible of execution. They are perpetual uses, and tho right is vested in a perpetual corporation or corporations. Neither tho county nor the city are temporary creations. They yet exist, and must continue to exist. They must have a court-house and jail, not only now but forever, and the people must always have churches and schools." '-Misuser or non-user does not, 410 ROAD LAWS OF OniO. [cnAr. 16, 16-21 16-20. Form of petition to vacate street. To the council of the city [or, village] of : The undersigned, owners of property abutting upon and in the im- mediate vicinity of street, from to , respectfully request that said street, between the points mentioned, be vacated, for the reason that it is no longer of any public use whatever; and that it will not l>e detrimental to the general interest to vacate the same. [Or, be narrowed to feet, for the reason that it is of unnecessary width, and that it will not be detrimental to the general interest so to narrow the same.] [Date.] NAMES. LOT. NAMES. LOT. 21. Notice of application. — No street or alley can be so vacated or narrowed, unless notice of the pendency and prayer of the petition be given by publishing the same in some newspaper published or of general circulation in such municipal corporation, for six consecu- in ease like this, work a forfeiture, as we have already shown." Williams v. First Presbyterian Church, 1 O. S. 478, 490, 510; beard of Education v. Ed- son, 8 0. S. 321 ; Doren v. Hortnn, 1 Handy, 401, 404. Municipal corporations are subject to the operation of the statute of limitations in the same manner, and to the same extent, as private individu- als. Cincinnati v. The First Presbyterian Church. 8 O. 298; Williams v. The First Presbyterian Church, 1 (). S. 478, 510; Cincinnati r. Evans, 5 O. S. -v.il. Notorious and uninterrupted possession for more than twenty-one years, by a private individual, under a claim of right, of land dedicated to a city for streets or public squares, will bar the claim of the city to its use. Cin- cinnati r. Evans, supra; Cincinnati v. The First Presbyterian Church, supra. But the possession of land adverse there must have been an intention on the part of the person in possession to claim tiile, so manifest- d l>;i Jan decla- rafio s i r his acts, that a failure of the owner to prosecute within the time limited, raises a presumption of an extinguishment, < r a surrender of his claim. The mere inclosing of a part of a highway, not u-ed or traveled by the public, with a fence is not such a claim, (,hi.u^h tiie erection, within the lines of the street, of a permanent building would be. Lane v. Kennedy, 13 O. S. 42. CHAP. 16, 22-34.] HIGHWAYS IX MUNICIPAL CORPORATIONS. 411 tive weeks preceding action on such petition; or, where no news- paper is published in the corporation, by posting the notice in three public places therein six weeks preceding such action. 1 22. Must be dm* when.— Action thereon must take place within three months after the completion of the notice. 1 23-26. Form of notice of petition to vacate street. Notice is hereby given that a petition praying for the vacation of stree t f rom - to , is now pending before the council ol the city [or, Village] of , and that the same will stand for action on andafterthe day of .18—. IThe dale given must not be lest than six weeks after the date of first publi- cation of the notice.-] A. .!.. Clerk of said city lor, village}. Given at , this day of , 18—. 27-33. Form of ordinance to vacate. Whereas a petition signed by various owners of lots abutting on or in the immediate vicinity of the , hereinafter described, has been presented to the council, praying for the vacation of the same; and, Whereas, notice of the pendency and prayer of said petition has been given bv publishing the same in the , a newspaper oi general circulation in the corporation, for six consecutive weeks, ending on the day of , IS—; ami, Whereas, the council is satisfied there is good cause for such vacation, that it will' not be detrimental to the general interest, and that the same should be made ; therefore, Be it ordained, by the council of the city \or, village] of , that Bai( j from to , be and the same is hereby vacated. *' p a8S ed' , a. i). 18—. R- K -> President of Council. Attest: A. J., City Clerk. 34. Effect of order of vacation, etc.— The order of the council va- cating or narrowing any street or alley which has been dedicated to public use by the proprietor, operates, to the extent to which it is vacated or narrowed, as a revocation of its acceptance by the coun- cil ; hut the right of way and easement therein of any lot-owner is not impaired thereby. 2 i 3 2653. ' J 2- 654 - 412 ROAD LAWS OF OHIO. [chap. 16, 35-45 Subdivision 3. Vacation of streets by court. 35. Vacation of establishment of street or alley by court. — On peti- tion filed in the court of common pleas by any person owning a lot in any city or in an incorporated or unincorporated hamlet or vil- lage, for the establishment or vacation of a street or alley in the im- mediate vicinity of such lot, the court, upon hearing, and being sat- isfied that it will conduce to the general interests of such city, hamlet, or village, may declare such street or alley established or vacated. This remedy is in addition to those prescribed in this chapter. 1 36. When petition to be filed. — In all cases where the application is made in the manner and for the purpose mentioned in the last para- graph, the petition must be filed in the office of the clerk of the court at least forty days previous to the next term of the court. 2 37-40. Form of jietition to court. To the Hon. the Court of Common Pleas within and for the county of , State of Ohio : Your petitioner, A. B., respectfully represents that he is the owner of lot number , in the city of , in said county, and that said lot is in the vicinity of an alley, feet wide, extending from street on the west, to street on the east, between lots Nos. ; that said alley has become wholly useless ; that the public convenience does not require it should be kept open ; and that it -will not be detri- mental to the general interest to vacate the same. Your petitioner, therefore, prays that said alley may be vacated. A. B. 41. Verification. — This petition may be verified as in paragraphs 10-14 of chapter 18, omitting " of." 42. Notice of filing. — The petitioners must also give notice in some newspaper printed in the county, and of general circulation therein, of the filing of such petition, and the substance and prayer thereof. 2 43-45. Form of notice. Notice. — I have this day filed a petition in the court of common pleas i § 2655 2 2 2056. CHAP. 16, 46-49.] HIGHWAYS IN MUNICIPAL CORPORATIONS. 413 of county, Ohio, praying for the vacation of [give substance of peti- tion^. Said petition will be for hearing on the day of . 18—, or as soon thereafter as counsel can be heard. [Date.] A - B - 46. Damages, etc.— If any person other than a petitioner owning a lot in the immediate vicinity of such street or alley, prayed to be established or vacated, claims that he will sustain damage thereby, the court may proceed to hear proof in reference thereto, and may render judgment against the petitioners for such damages as it may think just ; and they must be assessed by the court against the pe- titioners ratably, according to the value of the property owned by them, as the same stands taxed on the tax-list of the county. 1 47. Jury, guardian ad litem, etc.— A jury may be demanded as in other cases, and when necessary, the court must appoint a guard- ian ad litem for all minors, or persons of insane mind, who may be interested in the premises. 2 48. Street not to be closed until damages paid.— A street or alley so declared vacated, under the provisions of this subdivision, can not be closed or obstructed until the damages so assessed shall have been fully paid to the persons entitled to the same. 3 Subdivision 4. Labor upon street ; tax. 49. Labor upon streets; who liable, etc.— The council of any municipal corporation may require each able-bodied male person between the ages of twenty-one and fifty-five years, resident of the corporation, or territory attached as provided in this subdivision, to perform by himself, or substitute, in each year, two days' labor upon the streets and alleys of such corporation, or upon the public roads or high- ways that lie within such attached territory. This labor is in lieu of the two days' labor required to be performed upon roads and highways. 4 1 1 2656. 2 g 2656. As to guardian ad litem, forms as to, duties of, etc., see Giauques' Manual for Guardians, chapter 23. 8 % 2657. *§ 2658 - See uha P ter 5 » 414 road laws or onio. L UIIAP - 16> 50-54 50. Who exempt. — Active members of volunteer engine companies not exceeding sixty-four, of hook and ladder companies not ex- ceeding thirty, and of hose companies not exceeding twenty, are exempt from the performance of such labor during such member- ship, and, having served faithfully as such for five consecutive years, are exempt for five years thereafter. 1 51. May be paid in money. — Such labor may be commuted by the payment of three dollars, to be expended where the labor would have been applied. 1 And all other persons who are or may be ex- empt from performing labor on the public highway, are not subject to the provisions of this subdivision. 2 52. Penalty, etc, for refusal to perform labor. — Upon refusal to per- form such work under the proper street commissioner, or other officer appointed by the council, the delinquent will be liable to the same fines, penalties, and forfeitures as are provided against persons refusing to perform two days' labor upon the roads and highways in other cases; and to be recovered in the name of the corporation, before the mayor thereof. 3 53. Road districts and street commissioners. — The council have power to form road districts within the limits of the corporation, and contiguous territory attached as aforesaid, and to appoint suit- able street commissioners, or other proper officers, for any length of time, not exceeding two years, for such districts, or for the whole limits of such corporation, and the contiguous territory attached as aforesaid, who will be governed in the performance of their duties by the by-laws and ordinances of the corporation. 4 54. Road taxes, how collected and applied. — No tax assessed upon property within the territory attached to any corporation as afore- said, can be applied otherwise than within the territory in which it is assessed ; and all taxes charged for road purposes on the property within the limits of the corporation, or the. territory so attached, 1 \ 26.58. 2 \ 2664. 3 2 2659. i i 2660. Where, under the statutes in force in 1868 (S. & S. 839, and S. & S. 662), contiguous territory was attached to a town corporation for mad purposes, a street commissioner of the town might lawfully enter upon and take from the lands situate near a public road needing repair, in such terri- tory, material required and necessary to repair such road, although the land from which the material was taken was in another and different road district. Burrows v. Cosier, 33 O. S. 567. CHAP. 10, 55-00.] HIGHWAYS IN MUNICIPAL CORPORATIONS. 415 and collected by the county treasurer, must be paid over to the corporation treasurer, to be specially appropriated by the council to Streei and road purposes within the corporate limits and territory so atta hed. 3 55. The trustees of the township in which such territory is lo- cated, and the council, may agree upon a different distribution cr division of the funds. 1 • r )t'i. Attachment of contiguous territory.— It is the duty of the coun- cil, and the trustees of townships, respectively, in which any such corporation is situated (when it has not already been done, where from the sparseness of population the public interest requires it), to attach to the corporation any territory lying contiguous thereto, for the purposes mentioned in this subdivision. 2 57. Maybe detached. — Any portion of territory so attached may be detached, and replaced under the control of the township trustees for road purposes, by the council, with the concurrence of the town- ship trustees. 2 58. Collections of fines, forfeitures, etc. — The street commissioners, or other proper officers, have power to collect by suit, all fines, for- feitures, and penalties arising under the provisions of this subdivis- ion ; and they are authorized and required, before their annual settlement with the council, to prosecute to final judgment all per- sons neglecting or refusing to comply with the provisions of this subdivision, from whom, in the opinion of such street commission- ers, or other proper officers, such fine, penalty, or forfeiture can be collected. 3 59. As to weeds, etc., in the streets, see note to paragraph 88 of chapter 5. Subdivision 5. Special provisions as to roads, etc., in iiamlkts. 00. Trustees of, have full power over roads, etc., in. — The trustees of hamlets have exclusive jurisdiction of all public roads, streets, alleys, sewers, and drains within the limits of their corporati >u. They have also power to construct and keep in repair bridges and sidewalks; to lay out, establish, open, widen, improve, narrow, l 2 2G61. As to Washington county, see . . zg 2662. 3 g -J663. 416 ROAD LAWS OF OHIO. [CHAP. 16, 61-63 straighten, keep in order and repair roads, streets and alleys; to open, construct, and keep in order and repair sewers and drains; to enter upon and take, when necessary for the purposes named, any land or material, and to assess and collect a charge for the con- struction, improvement, or repair of any road, street, or alley ; but if a street is vacated or narrowed, the right of way or easement of lot-owners is not thereby impaired. 1 61. No order directing the opening of a new road, street, or alley, or the taking of any land for the improvement, straightening, or changing of any road, street or alley, can be made by the trustees nor can they pass any ordinance for such purpose unless they all concur therein ; and no order for the improvement or repair of a road, street, or alley can be made, except on petition of two-thirds of the owners of the lots or lands through or by which such road, street, or alley, or the part thereof to be improved or repaired, may pass. 2 62. The trustees may appoint, either from their own body or from the electors of the corporation, a marshal, who may, by ordinance, be required to act as supervisor; or they may, by ordinance, pro- vide for a supervisor other than the marshal; in which case they must appoint a supervisor from the electors of the hamlet. The services rendered by the marshal as supervisor must be paid for by the trustees of the proper township. 3 63. The trustees are authorized bylaw to make and publish such by-laws, resolutions and ordinances as may be necessary to carry into effect the powers conferred upon them ; and are vested with like rights and remedies in respect to enforcing their by-laws, etc., as other municipal corporations. 4 x \ 1651. As to their powers overconstruetiou of street railways, see Kail- way v. Cumminsville, 14 O. S. 523. They can not act separately. State v. Tp., -22 (). S. 144. 2 2 1652. 8 §2 1700 and 1703, as amended, 77 O. L. 15. As to supervisor's duties, so-i chapter 5. i i 1654. CHAP. 17, 1-2.] ROAD RECORDS, ETC. 417 CHAPTER XVII. ROAD (RECORDS, ETC. Subdivision 1. What records must be kept; where, etc. Subdivision 2. Restoration of lost ok damaged ruad records. Subdivision 1. What records must be kept; where, etc. 1. Commissioners' clerk must keep record of what ; index of yeas and nays. — The clerk of the county commissioners (generally the county auditor 1 ) must keep a full and complete record of the proceedings of the board, and a general index thereof, in a suitable book pro- vided for that purpose, entering every motion with the name of the person making it on the record ; 2 and he must call and record the yeas and nays on every motion which involves the levying of taxes or the appropriation or payment of money. He must state fully and clearly in the record any question relating to the power and duties of the board which is raised for its consideration by any per- son having an interest therein, together with the decision upon the same, and must call and record the yeas and nays by which said de- cision was arrived at. He must record, when requested by the par- ties interested in the proceedings, or by either of them, or by their counsel, any legal proposition decided by the board, together with the decision thereon and the votes by which the decision was reached ; and if cither party, in person or by counsel, except to said decision, the clerk of the board must record such exception in con- nection with the record of the decision. 8 2. Where kept, etc. — The record book of the board of county com- 1 1 1021. As to Hamilton county, see §j> 952, 953, 954. 2 This may be done by saying, in a line of its own preceding the entry or other matter introduced or brought to the attention of the board, "On mo- tion of ' [naming the person], as on pages 3, 6, and others; or by intro- ducing these words or their equivalent at suitable place or places in the entry, as on page 9, par. 58. 3 I 850, as amended, 82 O. L. 203. 27 418 ROAD LAWS OF OHIO. [CHAP. 17, 3-9 missioners must be kept, when the board is not in session, in the auditor's office, aud open to public inspection at all proper times. It must be duly certified by the president and clerk, and must be received as evidence in every court in the state. 1 3. Index of past records. — In counties where no index has been made of such record, the commissioners thereof are authorized to cause an index to be made of such past records for such period of time subsequent to the first day of January, A. D. 1880, as the judg- ment of the county commissioners may determine. 1 4. Clerk's fees. — The clerk is entitled to receive for indexing, pro- vided for above, such compensation as is provided for like services in other cases. 1 5. As to records of township roads, see paragraph 82, chap, 27. 6. Record of road surveys, etc., by county surveyor. — The county sur- veyor must make and keep in a book to be provided for that pur- pose, an accurate record of all surveys made by himself or his depu- ties, for the purpose of locating any land, or road lines, or fixing any corner or monument, by which the same may be determined, whether official or otherwise, and also any other surveys made in the county by competent surveyors, duly certified by such surveyors to be correct, and deemed worthy of preservation by the county commissioners, to whom the same must be submitted for approval before being recorded. These surveys must include corners, dis- tances, azimuths, angles, calculations, plats, and a description of the monuments set up, with such references thereto as will aid in finding the same, together with the names of the parties for whom made, the date of making the same. 2 7. Where kept. etc. — The book must be kept as a public record by the county surveyor at his office, and be at all proper times open to inspection and examination by all persons interested therein. 2 8. His fees. — The surveyor is entitled to the same fees as are now allowed county recorders for like work. 2 9. Hamilton county auditor must turn over certain books, etc., to com- missioners. — All books, papers, plats, records, journals, petitions, aud all other matters and things whatever, in any wise relating or ap- pertaining to, or necessary to the business of the commissioners, >§ 850, as amended, 82 O. L. 203. 2 1 1178, as amended, 82 O. L. 255. CHAP. 17, 10-12.] ROAD RECORDS, ETC. 419 and to county and state roads, free turnpikes, and all applications for road improvements, and all accompanying papers now or here- tofore in the custody or under the control of the auditor of said county, or on file in his office, must be, by him, placed in charge of said board of county commissioners, to be kept by it in some con- venient place in its office, open at all times to the inspection of the public. 1 10. Plats, surveys, to be kept where.— In said county, all plats, pro- files, and surveys, on applications for road improvements, when the application fails, and the county commissioners refuse to order the constructing of the road, must be carefully preserved in the office of the board of county commissioners ; and in case a new application for the same road, or any part thereof, is made, and said plats, pro- files or surveys, or any part thereof, are used by the county commis- sioners (the authority to do which is conferred on said commission- ers), the persons originally charged with the cost of the same, must be paid for all or such parts of said plats, profiles, or surveys as are so used, in the manner now provided by law. 2 Subdivision 2. Kestoration of lost or destroyed road records. 11. Application to restore.— An application may be filed in the court of common pleas of any county by the commissioners of that county, showing that the records of any specified road or roads of said county were lost or destroyed by fire, riot, or civil commotion, and that copies thereof or of some of them are in existence, and praying that the verity of such copies as may be produced shall be ascertained and declared by the court. 3 12. Notice by publication.— When such application is so filed, said court must require notice to be given by publication for six weeks upon such days, not less than once a week, and in such nswspapers as said court shall direct, of the filing and prayer of said applica- tion, and that the application will stand for hearing upon some day fixed by the court ; and requiring all persons interested to appear on said day and show cause, if any they have, why said application should not be granted. 3 1 g955. 956. 3 I 4935a, 81 O. L. 165. 420 ROAD LAWS OF OHIO. [CHAP. 17, 13-19 13. Notice at dwelling, etc— The court must also cause a copy of said publication to be served at each house which is occupied on the premises abutting on said road or roads upon any person dwelling therein, and upon the owner of each lot or tract of land abutting on said road or roads, or his agent, if found in said county, at least one week before the day fixed for such hearing. 1 14. Hearing.— Upon the day fixed for said hearing, and upon such days thereafter as said court by entry .on its journal may direct, said court must proceed to hear and determine whether the papers produced before it or any of them, are accurate or substantial cop- ies of said records fairly and honestly made. In considering this, it must hear any evidence which in its judgment throws light upon the question without regard to the ordinary rules of evidence. 1 15. Judgment of court and transcript of. — In all cases in which said court shall find any of said papers to be accurate or substantial copies of such records, it must so enter upon its journal, and direct transcripts of such copies to be made by such persons as it may select. 1 16. Entry as to transcripts, and delivery of to commissioners.— As often as any of said transcripts are completed to the satisfaction of the court, an entry of that fact must be made upon its journal ; and thereupon the clerk must certify upon such transcripts that they have been approved by the court, and must deliver them to the commissioners of said county. 1 17. Force and effect o/.— Thereafter said transcripts so certified will prima facie have the same force aud effect as the originals from which said copies were made. 1 18. Costs of, how paid.— The costs of making said transcripts must be fixed and allowed by the court. Other costs under this subdi- vision must be the same as now fixed by law for similar services ; and all costs for restoring such lost road records must be paid by the county, except as hereinafter provided. 1 19. Proceeding when copies of records, etc., are in existence. — Upon its appearing to the court at any time after the filing of said appli- cation and before the final determination thereof that any person has in his possession or under his control papers purporting to be copies of said record, or the originals from which the same were i J 4935a, 81 O. L. 1G5. CHAT. 17, 20-23.] ROAD CONTRACTS, ETC. 421 made and refuses to produce them to the court, the court must issue a rule requiring such person to show cause why he does not produce such papers and enforce the same by proceedings for contempt as in other cases ; and in case the production of such papers is ordered by the court, the party ordered to produce the same must pay all the costs under this paragraph. 1 20. County roads. — As to all county roads whose records have been lost or destroyed as aforesaid, and are not reproduced under the foregoing sections, prima facie the center of the road as now fenced shall he taken as the true center, and prima facie the width of the said road shall be sixty feet. 2 21. Penalty for altering, forging or counterfeiting record. — Whoever falsely makes, alters, forges, or counterfeits the record of any pro- ceeding, judgment, decree, entry, or any part of the record of any judicial proceeding required by law to be made in any action or other proceeding of any court in this state, or any certified copy of such record or any part thereof, or any pleading, process, return, report, minute, or docket entry or other authentic matter in any court in this state, or any writing by law made evidence for the purpose of restoring a lost or destroyed record, or any person who offers in evidence as true or genuine any such false, altered, forged, or counterfeited matter, knowing the same to be altered, false, forged, or counterfeited, is guilty of forgery, aud upon conviction thereof will he liable to be imprisoned in the penitentiary not more than twenty years nor less than one year. 3 22. Remedies, etc., cumulative. — Remedies and rules of evidence provided by this subdivision are cumulative to those already pro- vided by law.' L'.i. No . 81 O. L. 165. :; g 7092a. 81 (). L. 165. * 81 O. L. 166. 422 ROAD LAWS OF OHIO. [CHAP. 18, 1 CHAPTER XVIII. APPROPRIATION OP PRIVATE PROPERTY BY CORPORA- TIONS, INCLUDING TURNPIKE COMPANIES AND BRIDGE COMPANIES. 1. To what this eliapter applies. — Appropriation of private property by corporations must be made according to the provisions of this chapter. 1 This includes incorporated turnpike companies, bridge 1 § G414. (Though many of the decisions below relate to railroads, the principles decided are applicable, under like circumstances, to other cor- porations.) Land appropriated to a particular public use is not thereby withdrawn from the liability to be taken by legislative authority, in the exercise of the power of eminent domain, for another public use; but a subsequent grant can not be construed to authorize the subversion or destruction of the former use, unless such appears by express words, or by necessary implication, to be the legislative intent. Railroad v. Dayton, 23 O. S. 510. The right of eminent domain granted to a corporation places the property it acquires on no better footing than that of a private citizen, and it must still subserve public welfare, and the right of eminent domain may be granted to another corporation over the lands of the first corporation. The legislature can not part with the right of eminent domain, so as not to be able to resume it, or grant it over the same property to another corporation. Cin. Sup'r Ct., 1849. Cemetery v. R. R. Co., 7 W. L. J. 251 ; R. R. Co. v. Sundry persons, 7 W. L. J. 265, 275. The act conferring upon the probate court jurisdiction in cases for the ap- propriation of private property to the use of corporations authorized to construct public improvements, is a constitutional enactment, and not in conflict with section 8, article 4, of the constitution, which, while enabling the general assembly to give other jurisdiction to the probate court, by special or local law, does not prevent its being done by general law. Giesy -. R. 11. Co., 4 O. S. 308. The probate court has a special and limited jurisdiction, to be exercised in the cases and in the mode prescribed by law, and that court can not, under an order of the court of common pleas, and to carry into effect that order, take jurisdiction of a case, or proceed in a mode not authorized by the act. R. R. r. Marshall, 11 O. S. 497. "Where the charter of a railroad company merely fixes a few points through CHAP. 18, 1.] APPROPRIATION OF PRIVATE PROPERTY, ETC. 42o companies, avenue companies, treated of in this book, besides such corporations as railroads, etc. which the road is to pas? from its commencement to its terminus leaving the location of the road between the points specified to the discretion of the corporation, the railroad company, having once located the road, its power to relocate, and for that purpose appropriate the property of an individual, has ceased ; ami the same principle applies, whether the cas.) be that of an attempt to relocate on the property of an individual, or that of using a street or highway for that purpose. Railroad v. Naylor, 2 O. S. '_'■"»•">. When a company is authorized by its charter to change the location of its track on account of "difficulty of construction," and other causes, it may do so at any time before the construction of its road is completed, at the point where the change is made. Atkinson v. Kailroad, 15 (). S. 21. The power of eminent domain must be strictly construed; and if there is a reasonable doubt whether the legislature intended to grant the power claimed, the doubt is to be resolved against the power ; and this power should never be taken to be delegated by doubtful implication. Railroad u. Daniels, 16 0. S. 390; Bowersox v. Watson, 20 O. S. 490; hence, where a company is authorized by law only "to enter upon any land to survey, lay down, and construct its road;" "to locate and construct branched roads, from the main road to any town or places in the several counties through which the said road may pass;" to appropriate land for "necessary side tracks," and "a right of way over adjacent lands sufficient to enable such company to con- struct and keep in repair its road," such company, while engaged in con- structing its permanent main road along the north side of a town, is not authorized to appropriate a temporary right of way along the south side of *the town, to be used as a substitute for the main line while the latter is in course of construction. Currier v. Kailroad, 11 O. S. 228. The general assembly possesses the constitutional power to confer upon a railroad company the authority to appropriate grounds necessary for the use of a depot. Giesy v. Railroad, 4 O. S. 308. Where a canal company and a turnpike company have a common interest in a strip of land, and the canal company sells its interest to a railroad com- pany, the latter takes, subject to the easement, of the turnpike company, and if the railroad company construct a railroad in part along and upon the strip owned in common, the turnpike company is entitled to compensation to the extent of the diminution of the productive value of the property by reason of the change from a canal to a railroad; but in such case the diminu- tion of the productive value of the turnpike-road, arising merely from com- petition between the two roads, as a means of transportation and travel, is to be excluded. Railroad v. Zinn, 18 O. S. 417. Where the property of one corporation is taken by another, as that of a canal or turnpike company for railroad purposes, the rule of valuation is what the interest of the company is worth, not for any one specified purpose- 424 ROAD LAWS OF OHIO. [CHAP. 18, 2-4 2. To what this chapter does not apply. — The provisions of this chapter do not apply to proceedings by state, county, township, district, or municipal authorities, to appropriate private property for public uses, or 'or roads or ditches. 1 3. May be made when.— Such appropriations can only be made when the corporation is unable to agree with the owner, or his guardian or trustee, as to the compensation to be paid for the prop- erty sought to he appropriated, or when the owner is incapable of contracting in person or by agent, and has no guardian or trustee, or is unknown, or his residence is beyond the state, or unknown. 2 4. Petition for; in what court to be filed.— In any such case the corporation may file with the probate judge a petition, verified as in a civil action, on taining a specific description of each parcel of property, interest, or right, within the county, sought to be appro- priated ; the work, it any, intended to be constructed thereon ; the use to which the same is to be applied; the necessity for the appro- priation ; the name of the owner of each parcel, if known, or if not known, a statement of that fact; the names of all persons hav- ing or claiming an interest, legal or equitable, in the property, so or use merely, but for what it is worth generally, for any and all uses. Goodin v. Canal Co., 18 O. S. 169. See also notes to pars. 20, 42, 51, 72, chapter 19. The fact that the owner of property sought to be condemned has agreed with the railroad company seeking its appropriation, on the terms of a right of way, on a different part of the property, is no defense to the appropria- tion on a different line as to which they can not agree. Warren Prob. Ct., 1877. Railroad v. Railroad, 2 Bull. 187. Parties acting under and within the scope of the provisions of this chap- ter are not wrong-doers. Railroad v. Whitaker, 8 O. S. 590. The power to appropriate private property to corporate uses rests upon the public necessity, and can only be exercised where such necessity exists; but this necessity relates rather to the nature of the property, and the uses to which it is applied, than to the exigencies of the particular case, and it is not a valid objection that other land could be obtained by purchase which would be equally feasible (Giesy v. Railroad, 4 O. S. 308); and only such interest as will answer the public wants can be taken, and this can be held only so long as it is used by the public, and can not be diverted to any other pur- pose, lb. See also notes to par. 84, below. 1 2 6153. J 6415. CHAP. 18, 5.] APPROPRIATION OF PRIVATE PROPERTY, ETC. 425 far as the same can be ascertained, and a prayer for the appropria- tion of the property. 1 5. In what county petition to be filed. — The petition may include one or more of the parcels of property, rights, or interests in the county in which it is filed ; and when any such parcel, right, or in- »§6416. In a proceeding by a railroad company, under the railroad act of 1848 (2 Curwen, 1394), authorizing an appropriation of lands on which to construct a railroad, the company described the land to be appropriated as "fifty feet wide on each side of said railroad as last surveyed through sub- division lots Nos. 1, 2, 8, and 4, fractional section No. 1, of township 10, south of range 7 east, commencing on the north bounds thereof, thence westerly and southerly on and near the boundaries thereof to a point in the the west line of said No. 4, near the nort-west corner ; also, lots Nos. 11. 12, 13, 14, and 15 of the subdivision of river tract No. 87, in said count v." The application was filed February 28, 1851, and notice given March 4. View made and report tiled April 21, and possession taken by the company April 22, 1851. In an action by a subsequent purchaser of the lands of the former owner, with notice, to recover the same from the company, on proof that said road was surveyed and staked out previous to the 1st of April, and found staked out by the viewers; Held, that said description was sufficiently certain in the appropriation proceedings. Cleveland & T. K. Co. v. Prentice 13 O. S. 373. "Where, in such proceeding, the company lias filed, in the proper court, a written statement, specifically describing the property sought to be appro- priated, no further written or record evidence of the lino of the road is es- sential to the right of the company to have an assessment by a jury of the compensation to be paid for the property so described. Powers v. Railway Co., 33 O. S. 429. The general assembly has power to confer on the probate court jurisdiction in cases for the appropriation of private property for the use of corporations authorized to construct public improvements, and an act conferring such jurisdiction is not, on that account, in contravention of the constitution. An act of the character named does not confer the power of eminent do- main, but merely provides the modes for its exercise; but the power of emi- nent domain 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, and may be by it exercised, directly or indirectly, without the intervention of the judiciary except for determining the amount of compensation in a particular case. But the courts possess full power to determine its proper limits, and to pre- vent abuses in its exercise. Giesy v. Railroad, 4 O. S. 308. The probate court has only special and limited jurisdiction under the stat- 423 ROAD LAWS OF OHIO. [CHAP. 18, 6-14 terest is situated in two or more counties, the petition may be filed in either of the counties in which an owner is resident, and if no owner is resident therein, it may be filed in either. 1 6-14. Form of petition. State of Ohio, county. In the probate court: The Company, plaintiff, 1 vs - . I Petition [Name all other persons in- j forested] defendants. J Plaintiff is a corporation duly organized under the laws of Ohio; and it is necessary for plaintiff to appropriate the following described parcels of property [interest or right, if so] within said county of , to wit : 1. [Describe specifically the strip or tract of land needed'] owned by L. D. 2. [D>scr''b ; specifically to trait, or interest in it, etc.] owned by M. X. [or, owner not known]. 3. [D, scribe specifically thus each parcel, or interest or right in the parcel, needed. ] The said parcels of land are wanted by plaintiff for the purpose of constructing thereon a part of the turnpike [or state whatever it be] of said company, which turnpike is to be used as a public highway according to the laws governing such turnpikes, and plaintiff is unable to agree with said owners [and with said guardian, if so] respectively as to the compensation to be paid for said property [or, that said owner, X. Y., is incapable of contracting, and has no guardian, or, is a non-resi- dent of this state, or, his residence is unknown, or all of these statements or modifications of them, according to the facts]. Plaintiff therefore prays that such steps may be taken in the prem- ises as are required by law to enable it to appropriate said property for the uses and purposes above specified, upon payment of such compen- sation to each owner as may be found payable according to law. The Company. By , its A ttorney, [or, , Attorney for Plaintiff]. ute authorizing the appropriation of private property to the use of corpora- tions, and can not proceed in a mode not authorized by law. Railroad v. Marshall, 11 O. S, 407. Such corporation may, at any time, at least before the submission of the inquiry to the jury, discontinue such proceeding. lb. ig 6117. Proceedings may be instituted jointly against all the owners of property CHAP IS, 15-21.] APPROPRIATION OF PRIVATE PROPERTY, ETC. 42/ State of Ohio, county, ss. \ T being duly sworn, says that he is the of said plaintiff, and that the statements and facts set forth in the foregoing petitionee true, as he verily believes. ' ' Sworn to before me and subscribed in my presence on this day „ 1Q II M., Notary Public, county, (J. ot , i <-> — • 15. Form of entry, fixing time for hearing. The court fix the day of , 18-, for the hearing of this cause. 16 Summom.-V pon the filing of a precipe therefor, the probate judge must issue summons for the owners, and persons named in the petition as residents of the state and having an interest, which may be directed to the sheriff of any county, and must command him to notify the persons named therein of the filing of a petition and to ap- pear thereto at a time tobe fixed by the judge, and named therein, not less than five nor more than fifteen days from the date thereof. It must be served and returned as in a civil action. 1 17 Alias mmmom.— When a writ is returned » not summoned, other writs may be issued, until the parties are duly summoned. 1 18-21. Form of precipe. State of Ohio, county ss. Probate court. The Company, plaintiff, Precipe L. D. et al., defendants. To the Hon , probate judge of said county: Issue summons in said case for [state «*>], residents of said county, to the sheriff of said county ; and for [state who, resident of another county |, resident of county, to the sheriff of said county [etc as may, A. T., Attorn, y for Plainttf. be\. Ivino in the county and sought to be appropriated, but after the return of the .fury from the view, each owner of distinct property is entitled to a sepa- rate trial. Giesy v. Railroad, 4 O. S. 308. i 3 0418. See also § 5010. The whole proceeding is substantially in rev,, and jurisdiction of the per- Bons of the parties is not necessary. Cupp v. Seneca Co., 19 O. S. 178. 428 ROAD LAWS OP OHIO. [chap. 18, 22-31 22-26. Form of summons. State of Ohio, county, ss. Probate court. To the sheriff of county, greeting : You are hereby commanded to summon \_name all -parties in the county] to be and appear before the probate court within and for the county of , on , the day of , 1 8—, at o'clock a. m. of said day, to answer a certain petition filed in said court against them by the [name the plaintiff], in which said corporation seeks to appropri. ate certain property, therein described, of which they are the owners [or, in which they claim some interest], and make due service and re- turn of this writ, as in civil actions. Witness my hand, and the seal of said court, this day of , 18—. Tseal.1 'i P/'obate Judge. 27. Service by publication. — When a person having an interest is unknown, or his residence is beyond the state, or unknown, the cor- poration may make service by publicatian against him, by publish- in^ in a newspaper of general circulation in the county where the petition is filed, for four consecutive weeks, a notice containing a summary statement of the object and prayer of the petition, so far as it relates to the property of the person thus to be notified, the court in which it is filed, and the time when such person is to ap- pear thereto, not less than ten nor more than twenty days after the last publication ; and the fact of publication may be proved by the affidavit of any person knowing it. 1 28-31. Form of affidavit for service by publication. State of Ohio, county, ss. [State case.~\ A. T. being duly sworn, says that he is attorney of the plaintiff; that , defendant, is a non-resident of the State of Ohio, and is a resident of , in the state of [or, the residence of , defendant, is unknown], and service by summons can not be made upon him in this state; and that this is one of the cases mentioned in section 5048 of the Revised Statutes. A. 1. Sworn to and subscribed before me this day of , 18 — . H. M., Notary Public. »§6419. CHAP. 18, 32-SG.] APPROPRIATION OP PRIVATE PROPERTY, ETC. 429 -32. Form of order directing service by publication. It appearing upon evidence to the satisfaction of the court that the residence of the defendant, M. X., is beyond the State of Ohio \_or, is unknown], it is ordered that service by publication be made against the said M. X., in accordance with the provisions of section 6419 of the Revised Statutes. 33. Form of notice by publication. M. X., who resides in — — [or, whose residence is unknown], is hereby notified that on the day of , IS — , the Company filed its petition in the probate court of county, in which it seeks to appropriate certain real estate owned by said M. X. [or, in which said M. X. claims some interest], to wit: [describe property as in the peti- tion]. Said M. X. is required to appear and answer to said petition on the day of , 18 — , at o'clock a. m. The Company, By IT. M., its Attorney. 34. For form of proof of publication, see paragraphs 21-23, chap- ter 2. 35. Court to appoint attorney for party absent or under disability. When a party in interest is unkuown, or his residence is unknown, and when service has been made by publication, and the party has not appeared in the proceedings by agent or attorney, or when such party in interest is under any legal disability, and has no legal guardian, or trustee, within the county where the action is brought, the court must appoint some competent attorney to attend upon the proceedings, and protect the rights and interests of such party. The court must fix the amount of the fees of the attorney for such service, which will be payable out of any money paid on the judg- ment rendered in such case for property appropriated. 1 36. Form of appointment. M. X., one of the defendants herein, not having appeared in these proceedings by agent or attorney [or, being a minor and not having any guardian, etc.'], the court hereby appoints E. R. attorney to attend upon these proceedings and protect the rights and interests of the said M. X. 1 1 6441. 430 ROAD LAWS OF OHIO. [CHAP. 18, 37 37. Jurisdictional questions to be first determined. — On the day named in any summinons first served, or publication first completed, the probate judge must hear and determine the questions of the ex- istence of the corporation, its right to make the appropriation, its inability to agree with the owner, and the necessity for the appro- priation. Upon these questions the burden of proof is upon the corporation ; and any interested person has a right to be heard. 1 1 ?6420. In a proceeding by a railroad company before a probate judge, under the act of April 30, 1852 (S. & C. 311), for the assessment of compensation to be paid for land appropriated for its road, it was incompetent for the land-owner to prove, for the purpose of defeating the proceeding, that the corporators procured the incorporation of the company, not for a public use, but for their private purposes merely, and were exercising the corporate privileges in abuse of the law ; nor was it competent to prove for that purpose that there was no public necessity for the road. These questions were not committed by the law to the determination of the probate judge, nor to the jury ; but pertained to other proceedings and other tribunals. Powers v. Railway Co., 33 O. S. 429. But by the act of March 23, 1875, the power of determining the necessity of the appropriation, which had, prior to that time, been held by the corpo- ration seeking to condemn, is now delegated to the probate court. War. Prob. Ct., 1877. Railroad Co. v. Railroad Co., 2 Bull. 187. The existence of the corporation, and the right to make the appropriation, both depend on the legal validity of the certificate and the public record of the organization of the corporation ; and it is therefore essential, in such pro- ceeding, that the corporation give evidence of a certificate or public record of its organization in accordance with the provisions of the statute. Rail- road v. Sullivant, 6 O. S. 276; and as corporate existence, and the right to exercise the power of eminent domain, can only be derived from legislative enactment, the corporation must show, before it can demand a judgment of condemnation, that both have been conferred upon it by a valid law, and that it has substantially complied with the conditions which the law has an- nexed to the exercise of the power. Atkinson v. Railroad, 15 O. S. 21. Where a railroad company proceeds to appropriate land for its use, it 19 essential to a judgment of condemnation that it should prove its corporate existence, and that it has complied with the law giving it the right to exer- cise the power of eminent domain. Powers v. Railway Co., 33 O. S. 429. It is essential to the exercise of the right of eminent domain for the com- pany to prove that it has fully organized by the election of directors, and that they are unable to agree with the owner of the property upon the com- pensation to bo paid therefor. lb. But a judgment rendered in a proceeding for the appropriation of land CHAP. 18, 38-46.] APPROPRIATION OF PRIVATE PROPERTY, ETC. 431 38. If, after hearing the evidence and argument, as in other trials, cither of said questions are decided against the corporation, the case must be dismissed at plaintiff's costs. 39. Jurors to be drawn from the box. — If the judge determine these questions for the corporation, as to any or all of the property, and persons interested therein, he must issue an order to the clerk and sheriff to draw sixteen names from the jury-box, as in other cases. 1 40. Form of entry, determining preliminary matters; jury ordered, or case dismissed. The cause came on to be heard, and was submitted to the court upon the evidence produced; and the court find that the defendants have been duly served with process and are properly before the court; and further find that the plaintiff is [not] a corporation, as averred in the petition herein, that it has [not] the legal right to make the appro- priation prayed for in the petition, and that the same is [not] neces- sary, and that plaintiff is unable [or, has not sufficiently tried] to agree with the defendants as to the compensation to be paid for the property sought to be appropriated herein [to all of which excepts].* 41. It is therefore ordered that [said proceeding be dismissed at plaintiff's costs, taxed at $ , or'] to assess compensation for said property, herein sought to be appropriated, a jury be impaneled, ac- cording to law, and that said jury come on the day of , 18—, at 10 o'clock a. m., which time is hereby fixed for the impaneling of the same. 42-46. Form of order to clerk and sheriff to draw jury. The State of Ohio, county, ss. Probate court. To , clerk of the court of common pleas, and , sheriff of county, Ohio, greeting: You are hereby commanded to draw from the jury-box, as required by law in other cases, the names of sixteen persons, and report said names to this court forthwith, to serve asjurors in a ease pending in this court, wherein the company is plaintiff, and L. D. and others are under the act of April 30, 1852 (S. & C. 311, which did not specifically re- quire that such proof should bo preliminary), will not be reversed for failure to make such proof on a hearing before the court preliminary to the impan- eling of the jury, if it be made at any time during the trial before judg- ment, lb. i§G421. 432 ROAD LAWS OF OHIO. [chap. 18, 47-55 defendants, in which the plaintiff seeks to appropriate certain prop- erty described in its petition. Witness ray hand, and the seal of said court, this day of — 18—. r SEAL 1 H. G., Prolate Judge. 47. Clerk's return to court— Within two days after the receipt of this order, the clerk and sheriff must execute it, and the clerk must forthwith return it to the probate judge, with a list of the names drawn indorsed thereon. 1 48. Venire for jury. — The judge must issue to the sheriff a venire for the jurors so drawn to attend at his office, at a time to be fixed by him, and named in the writ, not exceeding ten days from the date thereof, which must be served and returned as in other cases. 1 49-53. Form of venire for jury. The State of Ohio, county, ss. To the sheriff of said county, greeting: You are hereby commanded to summon {name the jurors drawn'], to be and appear before the probate court in and for said county on ■ , the diiy of , 18—, at o'clock — M., to serve as jurors in a case pending in said court, wherein , Company is plaintiff and L. D. and others are defendants, and in which case the plaintiff seeks to ap- propriate certain property of the defendants to its use. You will serve and return this writ, as required by law. Witness my hand, and the seal of said court, this day of , 18—. r gEU "I II. G., Probate Judge. 54. How trial conducted.— The owners of each separate parcel, right, or interest are entitled to a separate trial by jury, verdict, and judgment. They hold the affirmative on the trial, which must be conducted, and evidence must be admitted, and bills of exception may be taken, as provided in civil actions. 2 This means that each owner is entitled to a separate trial, after the jury views the premises, but not a separate jury.' 55. The court may allow any amendment.— The court may amend i §8421. 3 Geisy v. R. R., 4 O. S. 308. See note 2, this page. - 1 G422. Proceedings under that act may be instituted jointly against all the owners of property lying in the county and sought to be appropriated ; CHAP. 18, 50-58.] APPROPRIATION OF PRIVATE PROPERTY, ETC. 433 auy defect or informality in any of the proceedings authorized or required by this chapter, or cause new parties to he N added, and direct such further notice to be given to any party in interest as it deems proper. 1 56. Time of trial, adjournment-'', and discharge of juries. — The court may direct the order and fix the time of the several trials ; may ad- journ or continue any trial for the purpose of obtaining proper service Upon any property owner, or when deemed necessary for the proper and convenient trial of the several cases ; and may discharge any jury, and cause other juries to be impaneled, as provided in this chapter." 57. TaU&men. — When, by reason of non-attendance, sickness, or other cause, any of the sixteen persons are not present and in con- dition to serve as jurors, the judge must order the sheriff to fill the vacancies with talesmen. 3 58. Judge to question, jurors ; further talesmen. — When the list of sixteen is full, the judge must call upon each separately, beginning but after the return of the jury from the view each owner of distinct prop- erty is entitled to a separate trial. Geisy v. Railroad, 4 O. S. 308. Per Kanney, J. The statute is full of obscurity as to how the jury shall be impaneled — the right of challenge for cause is expressly given to either party. The right of each owner to retain en the panel such members of the regular jury as neither he nor the company could except to, would seem almost equally important, but it is seriously impaired i'f he is bound to sub- mit to challenges made by other owners. I am inclined to think that the law subjects him to this inconvenience, and contemplates but a single jury, to be composed of those against whom no just exception can be alleged by any of the parties interested. lb. 321. He (the owner) has the right to demand that his rights and interests shall engage the separate attention and examination of the jury, upon such evi- dence as he may be able to produce. lb. The word "jury,'' in section 10, article 1, of the constitution, as well as where it occurs in other places in that instrument, means a tribunal of twelve men, presided over by a court, and hearing the allegations, evidence, and arguments of the parties ; and they may be sent to inspect the prem- ises, Lamb v. Lane, 4 (). S. 1G7 ; and no valid appropriation of property for public use can bo made without a law providing compensation to the owner, to be assessed in the manner prescrihed in the constitution, for it does not execute it-elf in this particular. lb.; Smith v. Railroad, 2-3 O. S. 91 . Shaver o. Starrett, 4 0. S. 404. i g G 123 - g 6424. :t g G 125. See par. GG. 28 434 EOAD LAWS OF OHIO. [chap. 18, 59-61 with the first named on the list, to take his place in the jury-box, and must personally inquire of each, as called, whether he is in- terested in any way in any of the property, rights, or interests sought to he appropriated, or in the corporation which filed the pe- tition, either as owner, stockholder, agent, attorney, or otherwise; and if such person answer in the affirmative, or if it be shown to the judge, by satisfactory evidence, that he is so interested, he must be excused from serving on the jury, and the next person on the list must be called, and interrogated in like manner ; and if the list of sixteen be exhausted before a proper jury of twelve men is taken and accepted therefrom, the judge must order the sheriff to fill the remaining vacancies in the jury-box required to make up the number of twelve, with talesmen, who must be interrogated as above provided. 1 59. Challenges to jurors, and how vacancies in jury-box filled. — When the jury-box is filled with twelve disinterested jurors, the owners of the property which is the subject of the trial, jointly, and the peti- tioner, each have the right to two peremptory challenges, and to challenge for cause; and all vacancies arising in the jury from challenge, or otherwise, must be filled by talesmen having the qual- ifications prescribed in the last paragraph, to be ascertained as therein provided. 2 60. The oath to be administered to jury. — When the jury is filled, the probate judge'must administer to them the following oath: You, and each of you, do solemnly swear that you will justly and impartially assess, according to your best judgment, the amount of com- pensation due to the proper owners in the cases which will be brought before you in this proceeding, by reason cf the appropriation of their property described in the petition, to the use of [here name the corpora- tion], in the proceeding now pending, irrespective of any benefit from any improvement proposed by such corporation; and you do further swear that you will, in assessing any damages that may occur to such property owners, by reason of the appropriation, other than the com- pensation, further ascertain how much less valuable the remaining portion of said property will be in consequence of such appropriation ; this you swear as you shall answer to God. 3 61. The form of writ to sheriff. — The probate judge may, upon i§6425. See par. 66. 2 § G426. 3 2 6427. CHAP. 18,62-67.] APrROrPJATIOK OF PRIVATE PROPERTY, ETC. 435 motion of either party, issue the following writ to the sheriff, to wit: ' 62. State of Ohio, county, ss. To the sheriff of county : You are hereby commanded to conduct the twelve jurors named in the panel to this writ annexed, to view the property or premises sought to be appropriated by [here stale the name of the corporation'], and owned by [here state the n i ne of the owner or owners'], on — ■ — , the day of , 18 — , then and there to view the premises or property aforesaid [in the presence of A. B. on the part of the corporation aforesaid], and C. D. on the part of the owner, appointed by this court, and you shall make return of the manner you have executed this writ to this court, on the day of , a. d. 18 — .' 63. The writ must be signed by the probate judge, and certified under his seal of office. 1 64, 65. Form of sheriff's return on this order. Received this writ , 18 — , and on the day named therein I con- ducted said jury to the premises, and, in the presence of the two persons named in said writ, said jury proceeded to and did view said premises according to the command thereof. M. II., Sheriff. 66. Form of journal entry, as to talesmen, interrogating jury, completing panel, and view of premises. This cause came on this day to be heard, and the parties and their attorneys appeared, and also the following named jurors, heretofore summoned herein, viz. : [name them], and the panel not being com- plete, it was ordered that the sheriff fill the vacancies with talesmen; and thereupon D. P. and M. K. were called, and the panel was com- plete. And each juror being interrogated as to whether he was in any way interested, either as owner or agent, or otherwise, in the property sought to be condemned and appropriated, and each answering in the negative, and neither party excepting thereto, the said jurors were duly sworn.* 67. And on motion of , a writ was issued to the sheriff for a view by the jurors, in the presence of A. B. and C. D., of the premises » 1 6428. 436 ROAD LAWS OF OHIO. [chap. 18, 68-74 sought to be appropriated, returnable, according to law, on the d a y f ( 18 — , at — o'clock — m., to which time this cause is now adjourned. 68. \_Tf trial is had at once, without view of premises, omit the preceding paragraph, and say:'] And thereupon, after hearing the testimony of witnesses, argument of counsel {and finish as in paragraph 86, after same words there]. 69. Copies to sheriff. — The judge must also deliver to the sheriff a copy of that part of the petition containing a separate description of each parcel of property, and rights or interests sought to he ap- propriated within the county, which the jury is required to view. 1 70. He may appoint, to be present at the view, the two persons named in the writ. 1 71. The sheriff who is to execute the writ must, by a special re- turn upon it, certify under his hand that the view has been made according to its command. 1 72. The expenses of taking the view must be taxed in the bill of costs, and no evidence can be given on either side at the taking thereof. x 73. Witnesses examined before jury. — Witnesses may be examined before the jury after its return to the court ; but if more than three witnesses be examined by either party, on the same point in the same case, the judge may tax the costs of such additional witnesses to the party calling them. 2 74. When a structure is partly on land sought to be appropriated. When a buildiug or other structure is situated partly upon land sought to be appropriated, and partly upon adjoining land, and » § 6429. 2 \ 6430. In a proceeding to appropriate the land of a person, the owner of the land proposed to be appropriated, is a competent witness to testify in his own be- half, provided the proceedings have been instituted since the code took effect. As a general rule, the opinion of a witness as to the amount of damages which the land-holder will sustain by reason of the construction and use of a railroad, is not evidence, not being a question of science or skill, lying more within the knowledge of one man or another. By this is not intended that a witness may not testify to the value of the land, both before and after the location of the railroad. Railroad v. Campbell, 4 O. S. 583. The opinion of a witness as to the amount of damages which a land- owner will sustain by the appropriation of a portion of his land for the CHAP. 18, 75-83. J APPROPRIATION OF PRIVATE PROPERTY, ETC. 437 such structure can not be divided upon the line between such two tracts of land without manifest injury, the jury, in assessing the compensation to any owner of the lands, must assess the value of the same exclusive of the structure, and make a separate estimate of the value of the structure. The owner of the structure may elect to retain the ownership of the same, and to remove it, or ac. cept its value as estimated by the jury. If he fail to make such election within ten days from the date of the report of the jury, or within ten days from the termination of the cause in any higher court to which it may be taken, he must be deemed to have elected to retain and remove the structure ; but if he elect to accept the value of the structure, the title thereto will vest in the corporation making the appropriation, which will have the right to enter upon the laud for the purpose of removing the structure therefrom. 1 75. Verdict. — The jury must render its verdict in writing, signed by the foreman, to the judge, who must cause it to be entered of record. 2 76-83. — Form of verdict. [State court and case, as in paragraphs IS, ]9.] We, the jury in this cause, do find and assess compensation for land taken and damages to residue of tract, irrespective of any benefit to the owners named below, from any improvement proposed by the company, plaintiff herein, to be paid by the said plaintiff, because of the appropriation of the property of said owners to its use, in the purpose of constructing a railroad over it, is not admissible as evidence. 4 O. S. 583, followed and approved. Railroad v. Ball, 5 O. S. 568. But a witness may be allowed to give his opinion as to the value of the land affected. lb. "Where, in a proceeding by a railroad company to appropriate land for its use, an inquiry of damages is made, and it appears from the direct ex- amination of a witness, that on the tract of land over which the railroad is to be constructed, there are coal mines, and that the building of the road between them and a navigable river would tend to prevent the coal from being taken from the mines to the river, the witness, on cross-examination, may be asked whether the facilities of transportation of coal to market would be diminished by reason of the construction of the road. Railroad v. Campbell, 4 O. S. 583. 1 ?G431. 2 i 0432. See par. 115, and note thereto. It would be well for the at- torneys to prepare forms of verdict, leaving blanks to be filled by the jury. 438 ROAD LAWS OF OHIO. [chap. 18, 84-87 several casc-s submitted to us [or, in the case of B. M., if. his case is sub- mitted separately] as follows: To A. B., as compensation, $ ; as damages, $ ; total, $ . To CD. " $ ; " $ ; " $ • e tc. etc. etc. etc. 84. As to new trial; confirming verdict. Unless for good cause shown, upon motion to be filed within ten days after the verdict is rendered, a new trial be granted, the judge must enter a judgment confirming such verdict. 1 85-86. Form of entry as to hearing and verdict. [State county, etc., as in paragraphs 18, 19.] This cause came on this day further to be heard, the parties and their attorneys having appeared, and the jury, heretofore impaneled and ordered to view the premises having viewed the same, as appears from the sheriff's return on said order, also appeared, and after hear- ing of testimony of witnesses, argument of counsel, and charge of the court, the jury, after due deliberation, returned their verdict in writ- ing to the court, in words and figures as follows : [here copy the verdict entire']. 87. [ After ten days, if no new trial granted, enter here matter in paragraphs 95, 96, below.'] 1 1 6432. Where the statute has provided a mode for estimating damages for land taken by a railroad company in the construction of its road, and thus given a legal remedy both for original action and for revision of it, before courts of law, chancery has no jurisdiction upon that question. Walker v. Railroad, 8 O. 38, 39. The owner of land, regularly appropriated to the use of a railroad com- pany, upon proceedings instituted by the company under laws providing therefor, is barred of the common-law remedy, to sue for and recover the damages he may have sustained by the entry of the company, and the con- struction of their road upon such land. In such case, the bar is equally effectual, although the owner may have refused to submit to such proceed- ings, or to receive the amount awarded to him and deposited for its use. Hueston v. Railroad, 4 O. S. G85; S. P. Akron v. McComb, 18 O. 229, 1232. The statutory remedy for damages, under the railroad act of February 11, 1848, against a railroad appropriating a right of way, as it does not negative the common-law remedy, is merely cumulative to the common-law remedy by trespass or ejectment, or, in a proper case, by injunction. Union Com. Pleas. Hathaway v. Railroad, 2 W. L. M. 481. CHAP. 18, 88-94.] APPROPRIATION OF PRIVATE PROPERTY, ETC. 439 88 New trial, proceedings thereon, efc.-A new trial ran be -ranted for cause only, must take place in the same court where the first trial was had, and must he conducted in accordance with the pro- visions of this chapter for the first trial, so far as they are applica- cable ; and upon the granting of the motion for a new trial, it the amount of the first verdict has been paid into curt, the probate judge must retain it until the final termination of the second trial; but if, upon the new trial, the verdict of the jury exceed the amount of the first verdict, the corporation must pay the amount of the first verdict, together with the excess, to the owner of the property ; and if the verdict upon the second trial be less than that of the first, the probate judge must repay to the corporation the difference. If a new trial be granted at the instance of the owner of the property, and the verdict of the jury be the same or less in amount than that first rendered, the owner must pay the whole costs of the second trial ; and if it be more than that first rendered, the costs of the second trial must be paid by the corporation. 1 89, 90. Form of motion for new trial. [State court, parties, etc., as in. paragraphs 18 ,19.] Now comes [slate who], and moves the court to set aside the verdict in said case [or, in his separate trial in said cause], and to grant a new trial therein, for the following reasons: {give them, numbered, each in its own paragraph-]. {.Signed by said pariy or his attorney.] 91, 92. Form of entry, sustaining motion. [State case, as above.] This day this cause came on to be heard upon the motion ot lor a new trial, and was argued by counsel; on consideration whereof and for good cause shown, the verdict of the jury in said cause* [add, if so in so Jar as it relates to the case of -; or, to the property oi be and the same is hereby set aside, and a new trial granted as moved for]. 93, 94. Same, when motion overruled. [Follow preceding torn, to the * then add:] is hereby overrule-! [ifso.say to which overruling --excepts; and his exceptions are entered ot record]. . , It is therefore ordered that the verdict of the jury m said cause be i§ 6436. See pars. 128-134. 440 ROAD LAWS OF OHIO. [chap. 18, 95-97 confirmed, and that said plaintiff, upon the payment of the amount of said verdict, and of all costs due from them, shall be entitled to take possession of, and hold the premises aforesaid, with all rights and in- terests thereto belonging and appertaining, for the uses and purposes for which the appropriation was made; and all necessary process to put said plaintiff in possession of the same is thereupon awarded. 95, 96. Same, wJien no motion filed. This day this cause came on further to be heard ; and no motion for a new trial having been filed, and ten days having elapsed since the rendition of the verdict of the jury in said cause, It is therefore ordered that said verdict be confirmed [and finish as in preceding form~\. 97. When and how corporation may have possession. — Upon pay- ment to the party entitled thereto, or deposit with the probate judge, of the amount of the verdict, and such costs as have law- fully accrued iu the case up to the time against the corporation, the corporation will be eutitled to take possession of, and shall hold, the property, rights, or interests so appropriated, for the uses and pur- poses for which the appropriation was sought, as set forth in the petition ; and the judge must enter of record an order to that effect, and if necessary, proper process must be issued to place the corpora- tion in possession thereof. 1 >§ 6433. In proceedings by a corporation to appropriate private property, there must be a judgment confirming the verdict of the jury, before the corpora- tion is entitled, by a deposit of the amount of such verdict, to possession of the property appropriated. Wagner v. Railroad Co., 38 O. S. 32. Where a railroad company enters upon land under color of a proceeding in the probate court to appropriate the same, without first making compen- sation in money or first securing it by a deposit of money, and constructs thereon a railroad track and commences to run its cars along the same, after which the owner obtains a reversal of the proceedings and commences an action to recover possession of the land, the mere fact of delay, without proof of knowledge of or acquiescence in the acts of the company, will not estop the owner from maintaining such action. Bothe v. Railway Co., 37 O. S. 147. The act of February 11, 1848, makes the payment or tender of damages assessed, or the giving security, a condition precedent to the right of enter- ing upon land appropriated to construct railroads; therefore a plea, averring CHAT 18, 98-103.] APPROPRIATION OF PRIVATE PROPERTY. 441 98. If corporation fails to pay or deposit. — If the corporation fails in any case to make payment 01 deposit, as provided in the preced- ing paragraph, within thirty days after confirmation of the verdict, the probate judge, on motion of the party entitled to such payment, to be filed within ten days after the expiration of said thirty days, must enter an order directing the corporation to make such payment or deposit within thirty days after the date of such order. 1 99-101. Form of motion for ordei against corporation. [State case as in paragraphs 18, 19.] Now comes L. D., a defendant herein, and, first stating that although more than thirty days have elapsed since the confirmation of the ver- dict in said case in his favor for $ , no part of said sum has been paid or deposited as required by law, moves that said corporation may be ordered to pay or deposit said money within thirty days from the day of said order. H. M., Attorney for L. D. 102, 103. Form of such order. \_State case, as above.~\ On motion of the defendant, L. D., and it appearing that the plaint- iff herein has failed to make payment or deposit of the amount of the such payment before the commencement of this suit for trespass, is bad. The averment should be of payment before entry on the land — i. c. before the alleged trespass. Ward v. Toledo, M, & C. R. Co., 10 W. L. J. 365. In case of the assessment of damages for laying out, a road over the lands of any person, the giving bond for damages occasioned by the road was not such a compensation in money as the constitution required. 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. Ferris v. Bramble, 5 O. S. 109. 1 1 6434 Where a corporation having a right to condemn property has unlawfully and without condemnation taken possession or part of private property and damaged the value of the rest, the owner of such property may maintain an ejectment, or may have an action to compel condemnation, but can not have an action for damages as for condemnation and for consequent injury to the remainder, because payment of the damages awarded in such action would not vest the title in the corporation; therefore, the action being for trespass, a judgment for damages, and that, on payment thereof, title shall vest in the corporation, is erroneous. Ham. Dist. Ct., 1880. Turnpike Co. v. Railroad Co., 5 Bull G13. 442 ROAD LAWS OF OHIO. [chap. 18, 104-108 verdict rendered herein, it is ordered that the said plaintiff pay or deposit such sum, together with costs, as required by Livv, within thirty days from this date. 104. If money not then paid or deposited, what. — Unless such cor- poration, within saiil thirty days, make such payment or deposit, it must l)e held and considered to have thereby abandoned the prop- erty, rights, or interests so appropriated, and all claims thereon under its proceeding, and the judge must issue an order to that effect. The judge must also enter a judgment against the corpora- tion, and in favor of the party entitled to such payment, for such amount of expenses, including time spent, and attorney fees, incurred by him in the proceeding, as the court, upon the evidence offered in that behalf, deems just and reasonable, for which execu- tion may be issued against the corporation. 1 105. Directors liable. — The directors of the corporation, individu- ally, will be liable upon such judgment, and may be made parties thereto by action. 2 106. Application for sugIi order. — An application, similar to the motion in paragraphs 89, 90, may be filed, and under it a day for the hearing may be set by the court. But this application is probably not necessary. 107, 108. Form of entry in such case. The plaintiff herein having failed to make payment of the amount of the verdict rendered in this case, in favor of the defendant, L. D., it is now ordered that said plaintiff be considered to have abandoned the property so appropriated and all claims thereon under this pro- ceeding. And the court now, on evidence offered, find that the cost and expenses incurred by the said L. D., including time spent and at- torney fees, in this behalf, amount to dollars. It is therefore considered and adjudged that the said L. D. recover from the said plaintiff the said sum of dollars; and execution is av/arded therefor. >§ (It: 1 . 1. That a proceeding by a corporation to condemn land and taking posses- sion, followed by paying the money, into court ten years afterward, is void (Const., Art. 1, I 19). Bothe v. Kail way Co., 37 O. !5. 147, 151. 2 g G434. CHAP. 18, 109-115.] APPROPRIATION OF PRIVATE PROPERTY. 443 109. Additional remedy ; action for costs, etc. — The law provides, iu addition to the foregoing remedies, that if such judgment be not satisfied within thirty days niter its rendition, or if the party enti- tled thereto be not satisfied with its amount, such party will have a right of action against the petitioner for his expenses aforesaid, in- cluding time spent and attorney fees, and also for his expenses, including reasonable attorney fees, incurred in prosecuting such action ; but the action must be brought within six months after the rendition of the judgment in the probate court. 1 110. When and how corporation may abandon proceeding. — But the corporation may abandon any case or proceeding after paying into court the amount of the defendant's costs, expenses, and attorney fees, as found by the court. 2 Ill, 112. Notice in such case. [State court, parties, etc., as in paragraphs 18, 19.] The plaintiff desiring to abandon its proceedings for the appropria- tion of property, as stated in its petition, asks the court to find the amount of defendant's costs, expenses, and attorney fees, which it will pay when so found. G. M. Attorney for Plaintiff. 113, 114. Form of entry in same case. [State court, parties, etc.~\ The plaintiff gave notice this day of its intention to abandon its pro- ceedings herein, and thereupon the court, upon hearing, find that the defendant's costs herein, to this date, amount to $ ; his expenses incurred, including $ ■ attorney fees, $ : total, $ ; which is paid by plaintiff. This proceeding therefore is dismissed at plaintiff's costs, taxed at $ , which it is ordered to pay within days, or, in tit-fault thereof, that execution issue therefor. 115. May aho decline to talce property after judgment. — In all cases it is optional with the corporation to pay the judgment rendered against it, according to paragraphs 75 and 84, or to pay the costs, and decline to take the property sought to be appropriated. 3 '2 6435. * 1 0434. 3 \ 0453. Where, under this chapter, a railroad company regularly instituted pro- ceedings in the proper probate court, for appropriation of a right of way 444 ROAD LAWS OF OHIO. [dlAP. 18, 116 116. Petition in error; proceedings in error. — Either party may file a petition in error in the court of common pleas of the proper county, within thirty days from the rendition of the final judgment in the probate court, and the proceedings in error must be con- ducted as in civil actions. 1 over lands of a party made defendant to such proceedings, and carried the same forward until a verdict was rendered and confirmed by the probate court, fixing the amount to be paid by the corporation for the right of way sought to be appropriated, and the corporation immediately thereupon, hav- ing neither paid nor secured to be paid the amount of the verdict, caused notice to be entered on the journals of said court of its abandonment of such intended appropriation, it was held: 1. That the probate court has no jurisdiction to proceed, on the motion of the land-owner, to thereupon render a judgment or order for the payment by the corporation, of the amount of the verdict. 2. Such proceedings terminating when and as they did, the corporation thereby gained nothing, and the land-owner lost nothing; and the latter can not enforce against the former the payment of the amount of such verdict, either by action or by mandamus. 3. In case there had not been entered on the journal of the probate court any such express abandonment by the corporation of its proposed appropria- tion, but the railroad company afterward, neither paying nor securing to be paid the amount of 3uch verdict, actually constructed its road on another line, not touching the line of the lands of the defendant to the proceeding, the like results in law would follow. State v. Kailroad, 17 O. S. 103. i§ 6437. The limitation fixed by this section for commencement of proceedings in error is not by implication suspended by section 6723. Buckingham v. Bail- road, 10 O. S. 25. Where a corporation proceeded before a probate judge, under this chap- ter and where a final judgment was rendered by the probate judge in favor of the owner of the property against the corporation, for the amount assessed by the verdict of the jury, and the corporation paid the amount of such judgment into court, and entered into possession of the land, and then filed its petition in error to reverse the judgment of the probate court, and requested the probate judge to retain the money so paid into court until the final disposition of the proceedings in error, it was held that it was the duty of the probate judge, on demand of the party in whoso favor the judgment was rendered, to pay over to him the amount of such judgment, notwithstanding the pendency of proceedings in error and the objection of the corporation, and his failure to do so is a breach of his official bond. Meily v. Zurmehly, 23 O. S. 627. Where a railroad company, in such proceedings, pays into court the dam- ages assessed, and takes possession of the property, and upon petition in error CHAP. 18, 117-118.] APPROPRIATION OF PRIVATE PROPERTY. 445 117. The proceedings in such cases are, except so far as here pro- vided, in accordance with the chapter of the Revised Statutes relat- ing to Jurisdiction and Procedure in Error. 1 To give these fully would unduly enlarge this work. 118. If the court of common pleas, upon the hearing of the cause, affirm the judgment of the probate court, all the costs in the court of common pleas must be paid by the plaintiff in error; and if it reverse such judgment, it must retain the cause for trial and final judgment, as in other cases. This trial must be had at the term of reversal of the judgment, unless for good cause shown by either party the court grant a continuance; and on the trial of the cause the assessment is set aside and a new one awarded, it is competent for the jury, in making the latter assessment, to allow, and include in the verdict, interest from and after the time possession of the property appropriated was taken, and while the money was retained by the court. Railroad v. KoblentZ f 21 O. S. 334. The proceedings in the probate court can be reviewed by the court of com- mon plea*, only when the petition in error is filed within thirty clays from the rendition of the final judgment in the probate court. Railroad v. Hop- kins, 19 O. S. 279, approved and followed; Railway v. Wick, 35 O. S. 247. "Whether a petition in error was filed in time or not is to be determined from the record; and no plea is required setting up the lapse of time as a bar to the proceeding. lb. On error, the record under review can not be contradicted. If it is incor- rect, application should be made to the court whose record it is for its cor- rection, and when the correction has been made the corrected record should be brought before the reviewing court, by proper proceeding, before the case in error is determined. lb. This limitation for filing petitions in error applies as well to proceedings instituted by the land-owner under paragraph 126 as to proceedings insti- tuted by the corporation. lb. The limitation of fifteen days, fixed for the commencement of proceedings in error, by section 9 of the act of April 30, 1852, "to provide for the com- pensation of owners of private property appropriated to the use of corpora- tions" (3 Curwen, 1820), is not, by implication, repealed, nor superseded by the provisions of section 52:'. of the code of civil urocedure. Buckingham v. Steubenville & I. R. Co., 10 (). S. 25. 1 £ G707 ct seq. Condemnation proceedings in the probate court having been reversed on the application of one of several defendants in the common pleas, the case should be remanded to the probate court, not retained for further proceed- ings. Ilam. Dist. Ct., 1878, s. c. below, 2 Bull. 287. Banning v. Trustees C. S. R. Ry., 3 Bull. 965. 446 ROAD LAWS OF OHIO. [chap. 18, 119-122 in the court of common pleas, the same inquiry must he made as to the interest of the jurors, and the same oath must be administered to the jury as is provided for in paragraphs 57, 58, and 60. 1 119. Corporation may nevertheless proceed. — The corporation may, on the rendition of the final judgment in the probate court, pay into said court the amount of the judgment for compensation and costs therein rendered, and proceed to enter upon and appropriate the property, notwithstanding the pendency of the proceedings in error. 2 120. Conflicting claims not to be passed upon. — When there are di- verse or conflicting claims, legal or equitable, to the real estate, or any interest therein, sought to be appropriated under the provisions of this chapter, the jury or court can not pass upon them in the proceedings for appropriation, but such claims must be reserved for adjudication as provided in paragraphs 121, 125, below. 3 121. But to be adjudicated in the common jjleas.- — Upon the pay- ment of the money into court by the corporation, a party claiming a legal or equitable interest in the property, or the money arising therefrom by such appropriation, may file his petition in the court of common pleas of the proper county, making the other claimants to the property or money parties thereto, setting forth the facts on which the claim is founded, the fact of the appropriation of the property, the amount of money so paid in therefor, and such other facts as are proper to enable the court to hear and determine the matter between the claimants; and the court must forthwith ap- point some master of the court, or other suitable person selected by the parties, to hold and safely keep such fund, or invest it in the manner the court shall direct, after hearing the parties. Such fund will thenceforth represent the laud, and the interests therein, and be subject to the control of the court, having jurisdiction of the case, by orders entered in the action, according to the righ's of the parties to the land or fund, as the court may determine from time to time. 4 122. -4s to form of petition. — The facts to be stated are so various that no form of petition can well be given ; but its formal parts will be the same as in civil actions. See paragraph 125, below. 12 6438. 2 g 6437. See notes to par. 116. 8 \ 6442. Compare with pars. 67, 68, chapter 19. *§ 6443. CHAP. 18, 123-12G.] APPROPRIATION OF PRIVATE PROPERTY. 447 123, 124. Form of order to hold or invest money. [Give title, of case. ] It appearing to the court that, in accordance with the order of the court of - - county, Ohio, in a proceeding of the company against , to appropriate the property of for the use of said company, said company lias paid into said court $ [andfurther ibe 'the fund, if desired^, and the control of said fund having come to this court, It is ordered, that I. W., a master of this court [or, a suitable person selected by the parties therefor], hold and safely keep said $ until the further order of this court [or, invest said $ in, state what securi- ties, and hold them till further order of this court]. 125. Such proceeding a civil action.— Such proceeding in the court of common pleas must be considered and held to be a civil action ; and the conflicting claims of parties to said fund must be determined by the court, or by a jury trial, according as the claim is equitable or legal, in the same manner as if the laud had not been converted into money. 1 126. Certain provisions as to wrongful occupancy, etc., by corpora- tions.— -The law provides as to the procedure and remedies for cases where a corporation has taken possession of and is occupying or using the land of any person, etc., without having appropriated and paid°for the same, or the land is not held by any agreement in writ- ing with the owner. 2 But such cases, as to roads, etc., considered in this book, must be so rare as to make it inadvisable to give these provisions in full. There are also certain provisions as to the oc- cupancy of certain school lands, and as to the appropriation of un- finished railroad bods, by railroads, not important here, to which reference only will be made.' ___ J § 6444. As to procedure in civil action, see \ 4071 ct seq. 2 gg G448 and 6449, as amended, 80 O. L. 114, G450. s See I 6439; § 6445, as amended, 79 O. L. 65; \ 6446; § 6447, as amended, 79 O. L. 65. See last part of note to par. 116, above. The owner of land which has been unlawfully and wrongfully taken and appropriated to its use by a corporation authorized by law to appropriate land, can not maintain an action for the value of the land so taken and ap- propriated, and also damages accruing by reason of such taking and appro- priation, if the circumstances are such that ho may recover the land itself. Railroad v. Rbbbins, 35 O. S. 531. In such cases the owner may recover compensation and damages by spe- 448 ROAD LAWS OF OHIO. [chap. 18, 127-129 127. When, the probate judge is interested, either as stockholder, di- rector, or otherwise, in a corporation seeking to appropriate private property to its use, the proceedings authorized by this chapter may be commenced in the court of common pleas of the county. In that. case the proceedings must conform in all respects, so far as appli- cable, to the provisions of this chapter ; and all the powers conferred and duties imposed thereby upon the probate court will devolve upon the court of common pleas; and that court may make such orders, and direct such proceedings to be had as may be necessary to do full justice between the parties, according to the true spirit and intent of this chapter. After final judgment the corporation may [will], on depositing the amount of the judgment and costs as- sessed in said court, with the clerk thereof, be entitled to enter into possession of the property sought to be appropriated. In case such court is not in session when the proceedings are commenced therein, nor on the day fixed for the inquiry and assessment of compensa- tion, a special term thereof must be held in the same manner as provided in section twenty-two hundred and thirty-nine of the Re- vised Statues. 1 128. Fees, and how costs adjudged. — The jurors summoned, and at- tending or serving, in accordance with the provisions of this chap- ter, are each entitled to receive the same fees per day as are pro- vided by law for jurors in the court of common pleas, to wit: two dollars per day, and also five cents per mile for each mile of the dis- tance they are compelled to travel in the discharge of their duties. 2 129. The witnesses must be allowed the same fees and mileage as are allowed for attendance at the court of common pleas, to wit : cial proceedings, under §? 6448-6450, or the land itself, as in other cases of unlawful entry. lb. Where a railroad company occupies a public highway for its track, with- out appropriating or otherwise acquiring the right to do so, an owner of abutting lands, having the fee in the lands covered by the highway, may proceed, under \\ 6448, 6449, to compel the company to appropriate the right of way for its road. Railroad v. Williams, 35 O. S. 168. Section 12 of the corporation act of 1852 (S & C. 278) only assumes to ap- ply where the highway is occupied by agreement with the public authorities in charge or appropriation, but not where the public rights have been thus acquired. lb. 171. 1 1 6440, as amended, 80 O. L. 218. 2 2 6451. CHAP. 18, 130, 134.] APPROPRIATION OF PRIVATE PROPERTY. 449 seventy-five cents per day, and five cents per mile from residence, both ways. 1 130. The sheriff* is entitled to such fees as he is allowed by law or similar services in other cases, but he can not be allowed any thing in the way of poundage, except on money made on execution. 1 131. The clerk is entitled to a fee of one dollar and fifty cents for drawing, and certifying to the probate judge, the list of jurors. 1 132. The probate judge is allowed to enter a charge of five dollars in the cost bill for each day occupied in the trial of a cause, in ad- dition to his other fees provided by law. 1 133. And the whole costs so taxed must be adjudged against and paid by the corporation, except as provided in the next paragraph. 1 134. When costs may be apportioned. — A corporation, by its proper officer, agent, or attorney, may, at the time of filing the petition with the probate judge, deposit with such judge such sum of money, for each separate parcel of property as it deems a just and equitable compensation for the property, rights, and interests described in the petition, and sought to be appropriated ; and when the final verdict of the jury as to any parcel of property does not exceed the amount so deposited, and the owner has refused, after notice of such de- posit, to aceept the same, the whole costs of the proceeding as to such parcel must be equally divided between the corporation and owner or owners of the property ; and when the final verdict as to any parcel or parcels exceeds, and as to other parcel or parcels does not exceed, the amount deposited, the probate judge must appor- tion the costs in such manner as he may deem equitable and just. 2 1 1 6451. 2 g 6452. 29 450 ROAD LAWS OF OHIO. [CHAP. 19, 1 CHAPTER XIX. APPROPRIATION OP PROPERTY BY MUNICIPAL COPORA- TIONS, COUNTY COMMISSIONERS, AND OTHERS, EOR ROADS, BRIDGES, ETC. 1. By municipal corporation, for what purposes. — Each city and village may appropriate, enter upon, and hold real estate within its corporate limits for the following (among other) purposes; but no more can be taken or appropriated than is reasonably necessary for the purpose to which it is to be applied : 1. For opening, widen- ing, straightening, and extending streets, alleys, and avenues; also for obtaining gravel or other proper material for their improvement. For this purpose the right to appropriate is not limited to lauds lying within the limits of the corporation. 2. For levees, to pro- tect against floods. 3. For necessary bridges. 4. For deepening, straightening, or enlarging any water-course, in whole or in part, in the corporation. 5. For sewers, drains, and ditches ; and for this purpose the corporation has power to appropriate, enter upon, and take private property lying outside of the corporate limits. 6. For the purpose of opening or extending streets or alleys across railway tracks, and lands held or owned by railway companies, where such appropriation will not unnecessarily interfere with the reasonable use of such road or land by the railway company. 1 1 \\ 2232, 2233. See par. 19 of chapter 13. A municipal corporation is authorized to appropriate an easement in land abutting on a street, for the purpose of making a sloping fill in order to afford lateral support to the street. Dodson v. Cincinnati, 34 O. S. 276. Such appropriation does not divest the owner of his dominion over the property subject to the easement. He may still use it for all purposes not inconsistent with the special purpose of furnishing the necessary support to the street, lb. "Where such an easement has been appropriated, the land-owner is entitled to be compensated for all the rights of which he has been deprived ; but where he still retains substantial rights in the property, he is not entitled to he allowed the value of the land in fee-simple. lb. A railroad company seeking to enjoin a city from proceeding by ordinance CHAP. 19, 2-4.] APPROPRIATION OF PROPERTY, ETC. 451 2. Material. — Whenever material is required for the construc- tion, improvement, or repair of any such works, the corporate au- thorities are empowered to appropriate and Cake it; and for this purpose they may go outside the corporate limits. 1 3. By county commissioners, for turnpikes, etc. — Couuty commission- ers, when proceeding to build free turnpikes, and are not otherwise able to obtain the right of way and materials therefor, may proceed to appropriate the same under the laws providing for the appropria- tion of private property by corporations. 2 4. It would seem at first sight, that this referred to proceedings mnler chapter 18, above, and very appropriately so, as its provis- ions seem well adapted to this purpose, and are more definite and specific than those of this chapter. But it is there stated that the pro- visions of that chapter do not apply to proceedings by state, county, to condemn a street across tracks used as a railroad yard, which would de- stroy the yard for its purposes of shifting cars and as a standing place for cars not in use: Held, lands subject to a public use can not be condemned to a second public use inconsistent with the first. Belmont Dist. Ct., 1879. Railroad v. Bellaire, 4 Bull. 201. The power to extend streets over railroad tracts was conferred by the gen- eral authority to take land for street purposes, but the former use could not thereby be defeated. It' the municipal corporation acts in good faith, and within the limits of its authority, courts arc not authorized to interfere with its action. It. R. Co. v. Dayton, 23 O. S. 510. And see R. R. Co. v. Mau- rcr, 21 O. S. 421. Where a city erects a school-house on its own lot, but part of the building is on the property of a private person, such private person is entitled to the accumulation unless an assent by him is clearly made out; and in proceed- ings by the city to condemn the land so occupied by part of the school-house, the property owner is entitled to the value of the ground, with the additional value which it has with the building on it. Cuy. Prob. Ct., 1878. Cleveland v. Slade, 1 Clev. Rep. 105. A city acquires the fee-simple in lands appropriated to public uses, and this, whether she acquires it by condemnation in court or by taking the same by having built a street on private property ; the plaintiff can not maintain ejectment, being estopped by acquiescence to pursue any other remedy than an action for its value. Sup. Ct., Gen. Term, 1877. Cincinnati v. Kemper, 2 Bull. 5; Cincinnati v. Kemper, 2 Bull. 18. .. 1 § 2233. 2 gj| 4760, 4761. See par. 27 of chapter 6. for same. 452 EOAD LAWS OF OHIO. [dlAP. 19, 5-8 township, district, or municipal authorities, to appropriate private property for public uses, or for roads or ditches. 1 5. It therefore seems necessary to construe the word "corpora- tions" in paragraph 1, above, to mean "municipal corporations." 2 While the language of the chapter relating to appropriations thereby will be substantially followed in this chapter, the forms given will be adapted for use by county commissioners. 6. For other places in this volume where proceedings under this chapter are provided for, see paragraph 242, chapter 8 ; paragraph 150, chapter 12; paragraph 9, chapter 1(5. 7. Declaration of purpose to appropriate, etc. — "When it is deemed necessary by a municipal corporation so to appropriate private prop- erty, the council must, by resolution, declare such intent, denning therein the purpose of the appropriation, and setting forth a perti- nent description of the property designed to be appropriated ; and on the passage of such resolution, the yeas and nays must be taken and entered on the record of the proceedings of the council. 3 Two- thirds of all the council elected must vote for the by-law, ordinance, or resolution directing such proceedings. 4 8. Form of resolution to appropriate. Be it resolved by the board of commissioners of county, Ohio (two-thirds of the members of said board concurring), that it is deemed necessary and that it is intended by said board to condemn, appropri- ate, and take, and that said board does hereby condemn and appro- 1 § 6453. See also par. 2 of chapter 18. 2 See note 3 to par. 74 of chapter 4, for rules of construction. As the Revised Statutes were all adopted as one act at the same time, it can not be said that either \ 4761 or \ 6453, by reason of passage subsequent to the other, prevails over the other. An examination of the sources of these sections (66 O. L. 62, § 3, for § 4761, and 69 O. L. 88, § 24, for § 6t53) strengthens the view stated above. 3 \ 2235. A municipal corporation passing an ordinance when it is deemed necessary to extend a street, as provided for by R. S., § 2642, need not also pass the resolution to the same effect, as provided in 11. S., I 2235. Essentially there is no difference between the methods except that the ordinance is of the more solemn nature. Section 2642 modifies the other section. Ham. Dist. Ct., 1879. Cincinnati v. Mathers, 4 Bull. 273; 7 Kec. 734. * \ 2234. CHAP. 19, 9-17.] APPROPRIATION OF PROPERTY, ETC. 453 priate to public use for the purpose of [state w hat purpose'] the following described property, to wit: [describe the (and or materials wanted, as in the next form below'] ; that the county solicitor [or state what attorney] is hereby instructed to institute the necessary proceedings, and to apply to the court for an inquiry and finding of the compensation to be paid for said property, for the purpose above stated. 9. Application to court, etc. — Upon the passage of the resolution by the requisite majority, application in writing must be made to the court of common pleas of the proper county, or to a judge thereof in vacation, or to the probate court of the county. This application must describe, as correctly as possible, the property to be taken, the object proposed, and the name of the owner of each lot or parcel of the property. l 1 0-1 7 . Form of application. State of Ohio, county, in the court. The Commissioners of county, Ohio, plaintiffs, J Application to rs - > appropriate [Name all parties adversely interested], defend' ts. j property. On the day of , 18 — , said board of commissioners passed a resolution [the yeas and nays being called thereon, and two-thirds of the members elected to said board voting in favor thereof], declaring that it is deemed necessary to condemn and appropriate to public use for [state the purpose,as in resolution], and declaring its intention so to do, did condemn and appropriate to the public use, for said purposes, the real estate [or materials] described and owned as follows : First. [Describe a lot or tract, or trees or gravel, if so], situate at , owned by . Second. [Describe another lot, etc.], situate at , owned by [and so describe all lots, tracts, etc., to be appropriated]. Said board of commissioners ask that the court cause a jury to be impaneled to make inquiry and finding of the compensation to be paid by said board for the property condemned as set forth above ; and that, upon payment into court, or to the proper owners, defendants herein, of an amount of compensation equal to the sum so found as the value of the parcels of ground above described, the appropriation of such land may be allowed and possession awarded to said board, according to law ; and that the court will divide the sum so paid, or order its dis- 1 §2236. 454 ROAD LAWS OF OHIO. [CHAP. 19, 18, 19 tribution, among the several claimants, according to their respective interests in said property. [Signed ] The Board op County Commissioners op county, Ohio. By G. M., its Attorney. 18. Verification. — In the similar case under the preceding chapter, the petition must be verified, as in civil actions. 1 Such verification may be added here, if desired, and could do no harm. It may be verified by one of the commissioners. 19. Service of notice to property owners. — Notice of the time and place of such application must be given personally in the ordinary manner of serving legal process, to all the owners or agents of the owners of the property sought to be appropriated, resident in the state, whose place of residence is known ; and to all others, by pub- lishing the substance of the application, with a statement of the time and place at which it is to be made, for three weeks next pre- ceding the time of the application, in some newspaper of general circulation in the county. 2 (Read note below.) 1 See pars. 4, 6-14, chapter 18. 2 §2237. The provisions of this section appear to be contradictory. It seems that " notice of the time and place of such application " must be given personally, or by publication, " with a statement of the time and place at which it (the application) is to be made" not heard. This seems, especially when considered with section 2238 (par. 41), to leave no doubt that the notice must precede the filing of the application. But "the ordinary manner of serving legal process" is by the sheriff, on precipe, after filing the petition or application. But what basis is there for precipe, or for asking the sheriff to serve a notice of a proceeding not yet begun, no papers being yet in court? The phrase last quoted must have reference to the way the corporation, or the person who serves the notice for it, must serve the notices, and make his return and proof of same. — Ed. "Wheie the defendant, in a proceeding under the statute to condemn land for public use, dies during the pendency of the proceeding, or during the pendency of a petition in error to reverse the same, the revivor of the pro- ceeding must be had in the name of the heirs or devisees, and not of the ad- ministrator of the deceased. Railway Co. v Bohm, 29 O. S. 633. A municipal corporation need not proceed to appropriate private prop- erty by publication in a newspaper. Ham. Com. Pleas, 1877. Trustees v. O'Aieara.2 Bull. 142. In proceedings in eminent domain personal service of summons is not necessary. Service at residence is good as to those within the jurisdiction of the court; as to others, publication is good. lb. CHAP. 19, 20-38.] APPROPRIATION OF PROPERTY, ETC. 455 20-25. Form of notice. To [name all the deft ndants] : You arc hereby notified that the board of commissioners of - county, Ohio, will apply to the [name the court or judge], <>n , the day of , IS — , at o'clock — m , for the impaneling of a jury to find and determine the compensation to be paid by said hoard to each of you respectively, for the following described property [describe it as in the applicati n, or in such other way as wVl make its identity reasonably specific and certain], which property said board have condemned and appropri- ated for public use, for a free turnpike [etc., as may be j [Signed.'] TnE Board of County Commissioners of county, Ohio. By G. M., Attorney for said Board [or, clerk]. 26. How served, etc. — The foregoing is the " original," and should be retained by the person who is to serve the notices. That person should make, or there should be made for him, as many copies of the original as there are persons he will find on whom to- serve them. This copy need, however, name only that person to whom it will be given, or at whose residence it will be left, and, doubt- less, it need describe only the land in which that person is inter- ested, and not all that is sought to be appropriated, if there be more than one tract and owner. This copy should be given to the person for whom it is meant, or, if he can not be found, it must bedeft at his usual place of residence, if in the state and known. 27-29. Certificate on each copy. — On each copy so served put the following certificate : "I certify the within [or, foregoing] to be a true copy of the original notice." [Signed.] M. G. 30-32. Return of notice. — A copy, as just described, having been served on all persons found, or at their residence, if known, the original should have this indorsement made on it : " , 18 — . On , 18 — , I received this notice, and on , 18 — , I served the same on [state whom], by delivering to them each personally a true copy thereol ; and on [state whom], by leaving a true copy thereof at his usual place of residence; and on , 18 — [and state on whom service was made on that day, and how, as just stated — and so on t<>r each day, if all were not Si reed on same day.] [Signed.] M. G." 33-38. Affidavit to return. — An affidavit, as required by § 5041, 456 ROAD LAWS OF onio. [chap. 19, 39-42 may be unnecessary, but can do no harm, and may be as follows, written just below the foregoing return : State of Ohio, county, ^s. M Or., being been duly sworn, says that the various statements con- tained in the foregoing return are true. [Signed."] M. G. Sworn to and subscribed before me on this day of , 18 — -. [Signed officially by an officer authorized to administer oaths.'] 39. Form of notice by publication. This may be the same as the notice found in paragraphs 22-25. 40. Proof of notice by publication. — Paste a copy of this notice, cut from the paper in which it was printed, and below it make the affi- davit found iu paragraphs 21-23 of chapter 2, saying " three weeks" instead of " four weeks," as there stated. 41. Court to fix time for inquiry, etc. — If it appear to the court or judge that such notice has been served five days before the time of the application, or has been published as provided in paragraph 17, aud that such notice is reasonably specific and certain, the court or judge may set a time for the inquiry into aud assessment of com- pensation, by a jury of twelve men, unless all the parties agree upon a less number. This jury must be duly sworn to discharge that duty. 1 42. Guardian ad litem for infants, etc. — If at the time of such ap- plication, it appear that any of the owners of the property sought to be appropriated are infants, or insane, and that they have no guardian, a guardian ad litem must be appointed to act in their be- half. 2 x \ 2238. See note to par. 54, chapter 18. But such agreement would be effectual. 2 § 2243. For forms of application for appointment, etc., and as to duties, responsibilities, etc., of guardians ad litem, see the chapter thereon in Giauque's Manual for Guardians and Trustees, p. 270. Under the act of 1852, it was held that proceedings to assess the compen- sation for property belonging to a minor are invalid unless a guardian ad litem is appointed, although the minor is actuallly represented in the case by an attorney employed by his actual guardian, and the fact of minority is not made known until after the trial. Wewell v. Cincinnati, Ham. Dis. Court. Where the jury in allotting the sum upon the lots set a gross sum upon CHAP. 19, 43-49] APPROPRIATION OF PROPERTY, ETC. 457 43. How jurors drawn and panel filled in probate court. — If the ap- plication lit> in the probate court, the clerk of the court of common pleas of the county must, on the day fixed for the application, in the presence of the probate judge, draw twelve names, or such less number as may be agreed upon by the parties, from the box con- taining the names of persons selected as jurors for the county; and the persons so drawn must be summoned and serve as the jury, un- less excused or set aside by the court for good cause shown ; and if, for any cause, the panel is not full; the probate judge must fill it from the by-standers. 1 44_48. Form of journal entry. [State the case.~\ This day came the said plaintiffs [by G. M., their attorney, if so], and filed their application to condemn and appropriate certain property [describe it, or say, described in said application], for [state what purpose'], and it appearing to the court that due notice has been served on the defendants according to law, and that all of said defendants, except , appeared accordingly [or, name the defendants who appeared], and also that all preliminary steps required by law have been duly taken, and no agreement having been made as to the number of jurors, It is ordered that the clerk of the court of common pleas proceed at once, in the presence of the judge of this court, to draw from the box containing the names of persons selected as jurors for the county twelve names of persons to serve as jurors in this case, who shall be summoned to appear in this court on the • day of , 18 — , at o'clock — M. And it also appearing that L. B., a defendant herein, is a minor [or, insane], and has no guardian, A. L. is appointed guardian ad litem for said L. B. This proceeding is adjourned until the day of , 18 — , at o'clock A. M. 49. For form of order to clerk to draw jury, venire for jury, oath of jury, two lots belonging to different owners, it is error in the court to apportion the sum, but if the jury has been dismissed before the error is noticed, an- other jury must be impaneled. lb. x \ 2240. In proceedings in the probate court, under tbe act of April 30, 1852, a jury is to be impaneled to try all the cases, but each party has a right to his challenges, as if the trials were separate. Giesy v. R. R. Co., 4 O. S. 308. 458 ROAD LAWS OF OHIO. [CHAP. 19, 50 etc., not given here, see adaptable forms for same in preceding chapter. 50. Special term of court may be had. — If the application be in the court of common pleas, and such court is not in session on the day fixed for the inquiry and assessment of compensation, the judge of the court of common pleas of the subdivision in which the property is situated, or in case of his absence, interest, or disability, any other judge of the court within the district must hold a special term of court for the purpose of hearing and determining such inquiry and assessment, and direct a jury to be summoned for the purpose of making such inquiry, in the same manner that petit jurors are sum- moned in the court of common pleas for other purposes. 1 »§ 2239. In an action to recover compensation for land appropriated by a municipal corporation to public use, the same rule applies for assessing compensation as is applicable where the assessment is made by a jury in a special proceeding instituted under the statute for the purpose. Dodson v. Cincinnati, 3-1 O. S. 276. Where part of an abutting lot is covered by the slope of a fill made in the improvement of a street, the owner is entitled to compensation for the use of such part of his lot, the measure of which compensation would not be the full value <>f the fee, but the difference in the land without the easement, "and its full value as burdened with the easement. Cincinnati v. Dodson, Sup. C, 3 Bull. 560. A witness can not state his opinion of the damage; that is the question the jurv are to determine from the facts. He can describe the manner in which the property is affected, and state his opinion as to the value of the property. R. 11. Co. v. Ball, 5 O. S. 568. Where land is valued the limits of compensation may be comprehended in the following: First, the abstract value of the quantity of ground taken; second, the value arising from the relative situation of the land taken, in connection with the residue of the owner's land, from which it is severed, and third, the effect upon the residue of the owner's land arising from the uses for which the appropriation is made. 11. R. Co. v. Ball, 5 O. S. 568, 57">. Whether local incidental benefits can be set off against local incidental damages, see lb. and R. R. Co. v. Collett, 6 (). S. 182. Sales of neighboring property are not competent on dircet examination, at least unless the sale be of precisely similar property very near and very recent, and perhaps not even then, but on cross-examination they may be in- CHAI\ 10, 51-55.] APPROPRIATION OF PROPERTY, ETC. 459 51. Inquiry to be at time fixed.— The inquiry and assessment must be made at the time appointed, unless, for good cause, continued to another day- 1 52. View of premises may be required.— A view of the premises must lie ordered, when desired by the jury, or demanded by a party interested in the proceeding. 2 53. See forms in paragraphs G1-6S of the preceding chapter. 54. Maps, plats, etc. may be required of corporation. — The corpora- tion may he required to file a more full and accurate description of the property to be taken, and the object proposed, and maps, plats, and surveys, if, in the opinion of the court, the same are necessary and proper/ 1 55. How jury to return assessment. — The assessment must be in writing, signed by the jury, and must be so made that the amount payable t.» each owner may be ascertained, either by alloting it to each owner by name, or on each lot or parcel of land. 1 quired into to test the witnesses' knowledge. Cincinnati v. Bates. 11am. Dis. Ct. See also MeCraeken v. West, 17 O. 16, '24. "Where land originally taken for one public use is transferred to another, the measure of compensation to the owner is compensation for such addi- tional burden and inconvenience, not common to the general public, as ac- crues to him and his entire tract on which the easement is imposed, by rea- son of the change of uses to which the lands appropriated have been subjected. Hatch v. R. R. Co., 18 O. S. 92. Where land once taken for canal purposes is appropriated from the canal by a railroad, its value is not what the property is worth for canal purposes alone, or for any other particular use, but what it was worth generally for any and all uses for which it might be suitable. Goodin v. Canal Co., 18 O. S. 169. See also notes to par. 1 of chapter 18. !g 2241. 2 § 2242. s §2244. On an inquiry before a jury for the assessment of compensation to the property owners for land sought to be appropriated for a public use, a civil engineer testified that ho had computed the quantity contained in each of the lots described in the application for the appropriation, and had noted the square feet contained in each lot, on a copy of the plat contained in the application, which paper the court permitted to bo given to the jury as a memorandum of the quantity of land contained in each one of the lots, as tes- tified to by the witness. Held, not to be error. Neffy. Cincinnati, 32 O. S. 215. * 1 22i:>. In proceedings by a corporation to appropriate private property [under 460 ROAD LAWS OF OHIO. [CHAP. 19, 56-61 56. For forms, see paragraphs 76-83 of chapter 18. But the verdict here must be signed by all the jurymen, as per preceding paragraph. Where there is to be a new trial, etc., as provided for in paragraphs 74, 75, below, see paragraphs 89-94 of chapter 18. 57. Opening and closing of case. — The owners have the right to open and close the case in the introduction of evidence and the argument; but not more than two counsel can be heard for the city or the owners of any separate lot or tract, unless the court, for good cause, direct otherwise. 1 58. Hoiv inquiry made. — The inquiry and assessments must, in other respects, be made by the jury, under such rules and regula- tions as shall be given by the court. 2 59. When a structure is partly on the land. — When a building or other structure is situated partly upon the land sought to be appro- priated, and partly upon adjoining land, and such structure can not be divided upon the line between such two tracts of land without manifest injury, the jury, in assessing the compensation to any owner of the lands, must assess the value of the same exclusive of the structure, and make a separate estimate of the value of the structure. 3 60. The owner of the structure may elect to retain the ownership of the same, and to remove it, or accept the value thereof as esti- mated by the jury. 3 61. If he fail to make such election within ten days from the date chapter 18], there must be a judgment confirming the verdict of the jury, before the corporation is entitled, by a deposit of the amount of such verdict, to possession of the property appropriated. (March 28, 1882. In full, 2 O. L. J. 433.) Wagner v. Railway Co., 38 O. S. 32. i g 2245. Under the provisions of the former statutes authorizing a municipal cor- poration to appropriate land to a public use, such corporation must secure an inquiry into and assessment of compensation by a jury to the owner of the property sought to be appropriated, which inquiry and assessment must be, not merely nominal, but actual, and made upon proof of the value of the property, or the corporation may be defeated in the appropriation ; it is therefore not such error as will warrant the reversal of a judgment for the court before which the inquiry is held to permit such corporation to open and close the evidence and argument to the jury. Neff v. Cincinnati, 32 O. S. 215. 2 g 2245. See note 3, preceding page. 3 I 2245. CHAP. 19, G2-G8.] APPROPRIATION OF PROPERTY, ETC. 461 of the report of the jury, or within ten days from the termination of the cause in any higher court to which it may be taken, he must be deemed to have elected to retain and remove the structure. 1 62. But if he elect to accept the value of the structure, the title thereto vests in the city or village making the appropriation ; and it will have the right to enter upon the land for the purpose of re- moving the structure therefrom. 1 63. Verdict in whole or in part. — The jury must be sworn to make the whole inquiry and assessment, but may be allowed to return a verdict as to part, and be discharged as to the rest, in the discretion of the court. 2 See paragraphs 60, 76-83 of preceding chapter, and paragraph 55, above. 64. Another jury, when. — In case a jury is discharged from render- ing a verdict in whole or in part, another 'must be drawn and im- paneled at the earliest convenient time, who must make the whole inquiry and assessment, or the part not made, as the case may be. J 65. Orders as to payment or deposit of assessment. — When the assess- ment has been made by the jury, the court must make such order as to payment or deposit by the corporation as may seem proper. Such order must designate the time and place of payment or deposit, the persons entitled to receive payment, and the proportion payable to each. 3 66. Form of entry. [See pp. 439-40; in place of (he words in par. 96 of chap. 18, sag:] It is therefore ordered that said verdict be confirmed, and that, within days, said county commissioners pay to \_or, deposit, state ivhere, for the use of] the following persons the amount of compensa- tion so assessed to them, to wit : [name the persons and amounts for each. See paragraphs 67, 68, below]. 67. Adverse claimants must interplead. — The court may require ad- verse claimants for any part of the money or property, to interplead, and fully determine their rights in the same proceeding. 4 68. Form of entry as to interpleading. [At the close of the form given in paragraphs 85, 86, in chapter 13, add:"] And it appearing that [name the parties'] claim adverse interests in 1 g2245. 2 §224G. "§2247. *§ 2247. Compare with pars. 120-124, chapter 18. 462 ROAD LAWS OF OHIO. [chap. 19, 69-72 the sum of $ , assessed to , as above, it is ordered that said parties iile such pleadings in this proceeding as will present the issues between them, within days; the said to file his claim in days:, and the said to file his answer thereto in days there- after; and as to said parties named, this proceeding is continued until ;he day of , 18 — . 69. Time and manner of delivery of property. — The court may direct the time and manner in which possession of the property con- demned shall be taken or delivered, and may, if necessary, enforce any order giving possession. 1 70. Form of entry. [After paragraph 66, above, say .] It is further ordered, that, upon the payment [or, deposit] by said corporation of the several amounts as herein directed, the said parties so paid [or, secured by such deposit] shall, within days thereafter, surrender quiet possession of said property to said corporation, and, in default thereof, such process as is authorized by law is hereby awarded. It is further ordered, that said corporation, within days from this date, pay the costs herein, taxed at $ . 71. Costs, how paid. — The costs occasioned by the inquiry and assessment shall be paid by the corporation, and the other costs which may arise must be charged or taxed as the court in its dis- cretion may direct. 2 72. No delay from doubt of ownership ; deposit of money. — No delay in making an assessment of compensation or in taking possession can be occasioned by any doubt which may arise as to the ownership of the property, or any part of it, or as to the interests of the re- spective owners; but in such cases the court must require a deposit of the money allowed as compensation for the -whole property, or the part in dispute; and in all cases, as soon as the corporation shall have paid the compensation assessed, or secured its payment by a deposit of money under the order of the court, possession of the property may be taken, i.nd the public work or improvement progress. 8 1 \ 2248. 2 \ 2249. ■'■\ 2250. Where; the city claims title to a portion of the ground required for some public use which is in the possession of third parties, it is not bound to await CHAP. 19, 73-76.] APPROPRIATION OF PROPERTY, ETC. 463 73. Interested parties may give bond, etc. — Any person interested in the appropriation of private land for a street, alley, or public highway, may, before or after the passage of an ordinance for the opening of such street, alley, or public highway, or before or alter application to the court, execute his bond, payable to the corpora- tion, to the acceptance of the council, conditioned for the payment of all damages which may be assessed by the jury ; and such bond will be good in law, ami if such bondsmen pay or deposit according to the order of the court, then such street, alley, or highway must be opened; or the corporation may, at its discretion, make such payment or deposit, and collect bylaw the amount of such damages of such bondsmen, with or without costs, as the court may direct. 1 74. Review of proceedings. — Whoever, being directly interested, feels aggrieved by the verdict or finding or any decision or judg- ment of the probate court or court of common pleas in any such proceeding, has remedy by motion for new trial and petition in error, as in other cases. 2 See paragraph 56, above. 75. When execution of order may be suspended. — When such petition is filed, the court of common pleas, or probate court, as the case may be, may suspend the execution of any order which may have been made, on such terms as may be deemed proper, and may require a bond with security for the payment of any damages or costs which may be thereby occasioned; but in all cases where the municipal corporation pays or secures by a deposit of money the compensation assessed by the jury, and gives such security as may be deemed adequate to pay any further com- pensation and all damages and costs which maybe thereafter ad- judged, the right to take and hold the property condemned will not be affected by any such review. 3 76. Appeal to court of common pleas. — Where the proceeding is had in the probate court, any party interested in the inquiry and the tedious progress of an ejectment, but may condemn the property, have its value nssessed, pay the money into court, and litigate its rights by a claim to the money. The appropriation does not estop it. Wewell o. Cincinnati I Ham. Dist. Ct.) 1 ?2251. 2 1 2252. As to new trial, see chapter •">. T. I, Div. 3, Rev. Stat. (§ 5305 et As to error, s chapter 1. T. I V (jj G707 et seq.). ■■ \ 2253. 464 ROAD LAWS OF OHIO. [chap. 19, 77-86 assessment may take an appeal to the court of common pleas ; and thereupon the same proceedings must be had as if the application had been originally made in that court, except that the corporation shall not be required to give notice of its application ; and the in- quiry and assessment must be limited to the case of the party taking the appeal. 1 77. Costs on appeal. — The court must make such order for the payment of the costs accruing upon the appeal as may seem equi- table and just. 1 78. Notice of appeal. — The party desirous of appealing must, within ten days after the date of the final order determining the rights of such party, file with the probate judge notice of his inten- tion to appeal. 2 79. For adaptable form of notice see page 243. 80. Appeal bond. — The party appealing must, further, within twenty days after the making of the order, give a written un- dertaking to the adverse party, with one or more sufficient sure- ties to be approved by the probate judge, conditioned that the party appealing shall abide by and perform the order, judgment, or de- cree of the appellate court, and pay all costs or moneys which may be awarded against such party by the appellate court. 2 81-86. Form of appeal bond. Know all men by the?e presents, that we, L. P., M. P., and V. S., are held and firmly bound unto the commissioners of county, Ohio, in the sum of dollars, for the payment of which we jointly and severally bind ourselves, if default be made in the condition following. Signed by us at , this day of , 18 — . The condition of this obligation is such that, whereas, the said L. P. has appealed to the court of common pleas, from the final order of the probate court confirming the verdict of the jury assessing com- pensation to him for lands taken in a certain proceeding pending in 1 \ 2254. "Where a railway company, in proceedings under the statute for condem- nation of private property, pays iii court the damages assessed, and takes possession of the property, and upon petition in error the assessment is set aside, and a new assessment awarded, it is competent for the jury, in making the latter assessment, to allow and include in their verdict interest from and after the time when possession was taken, and while the money was retained by the court. Ky. Co. v. Koblentz, 21 O. S. 334. 2 1 2255. CHAP. 19, 87-91.] APPROPRIATION OF PROPERTY, ETC. 465 said court, wherein the said county commissioners made application for the appropriation of certain lands owned by said defendant and others, for the purpose of [shite the purpose'], and from all orders and judgments of said court, based upon said verdict, affecting the rights and interests of said L. P. : Now, if the said L. P. shall abide by and perform the order, judgment, or decree of the appellate court, and pay all costs and moneys which may be awarded against him by the appellate court, then this obligation shall be void ; otherwise to remain m full force. [Sianed by L. P., M. P., and V. S.~\ Approved: H. G., Probate Judge. 87. As to appeal by guardian, married women, etc. — When the ap- peal is taken by a person as guardian, executor, or administrator, who has given bond as such in the state, no undertaking will be required from such guardian, executor, or administrator ; and when an appeal is taken by a married woman, her liability will be the same as if she had been sole. 1 88. Transcript; effect of not filing, etc. — The probate judge must, upon the giving of the undertaking as provided in paragraph 80, or upon the filiug of notice of the intention to appeal where no undertaking is required, prepare an authenticated transcript of the docket or journal entries, and of the order or decision appealed from, which must be forthwith filed with the clerk of the court of common pleas by the person appealing, and the appeal must thereupon be considered perfected. If the transcript is not filed within thirty days after the date of the undertaking, or of the filing of the notice of intention to appeal where no undertaking is required, the party must be deemed to have waived an appeal. 2 89. Original papers may be used. — The original papers pertaining to the proceeding may be used upon the hearing or inquiry in the court of common pleas, aud must be transmitted by the probate judge for that purpose. 8 90. Corporation not to appeal, etc. — The municipal corporation has no right of appeal ; nor can it prosecute error, except upon leave of the reviewing court or a judge thereof. 4 91. Effect of neglect to take }>ossession in six months. — When a mu- nicipal corporation makes an appropriation of land for any purpose specified in this chapter, and fails to pay for or take possession of 1 §2256. 2 §2257 3 g2258. "3 2259. 30 466 ROAD LAWS OF OHIO. [chap. 19, 92-93 the same within six months after the assessment of compensation shall have been made, as hereinbefore provided, the right of the corporation to make such appropriation on the terms of the assess- ment so made, will cease and determine; and any lands so appro- priated will be relieved from all incumbrance on account of the proceeding in such case, or the resolution of the council making the appropriation ; and the judgment or order of the court, direct- ing such assessment to be paid, will cease to be of any effect, except as to the cost adjudged against the corporation. 1 92. Corporation need not accept the land. — The corporation appro- priating land may decline to take it, and judgment can not be entered against them for the price. 2 93. Corporation may begin new proceedings. — 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 cor- poration, after the expiration of the six months, for the appropria- tion of the same property for the same public use. 3 1 § 2260. The time commences running from the date of the judgment or order of the court directing such assessment to be paid, and not from the date of the rendition of the verdict. Ryan v. Hoffman, 26 O. S. 109. The provisions of this section are evidently intended for the benefit of the land-owner, and a strict compliance with its requirements could be waived by the owner. An acceptance of the money assessed as compensation after the expiration of six months from the date of the assessment, and a delivery of possession, would constitute a waiver, and be a ratification of the pro- ceedings, lb. 120. Proceedings, followed by payment ten years later, void. Bothe v. Rail- road, 37 0. S. 147, 151. In cases in which hamlets are authorized to appropriate private property, the proceedings must conform, as far as practicable, to the provisions of this chapter, § 2261. 2 State ex rel. Hayes v. Railroad Co., 17 O. S. 103. 3 Trustees C. S. R. R. v. Jacob Haas CHAP. 20, 1-3.] ANIMALS RUXXL-U AT LARGE, ETC. 467 CHAPTER XX. ANIMALS RUNNING AT LARGE ON PUBLIC ROADS, ETC. 1. What animals not to run at large.— The owner or keeper of a stallion, jack, bull, hoar, or buck must not allow it to go or be at large out of his own inclosure, under penalty of ten dollars for the first offense, and of twenty-five dollars for each and every subsequent offense, to be recovered by civil action, in the name of the State of Ohio, before a justice of the peace of the township in which such owner or keeper, or either of them, may reside. Such penalty will be for the benefit of, and, when collected, paid into the common school fund of the township in which the suit is brought; but such suit must be brought within sixty days after such animal is found to be at large. 1 2. What other animals not to run at large, unless; penalty.— It is unlawful for any person or corporation, being the owner or having the charge of any horses, mules, cattle, sheep, goats, swine, or geese, to suffer them to run at large in any public road or highway, or in any street, lane, or alley, or upon any uninclosed land, or cause such animals to be herded, kept, or detained for the purpose of grazing them on premises other than those owned or occupied by the owner or keeper of such animals, except as provided below; and any person so doing incurs a penalty, for each violation, of not less than one dollar nor more than five dollars. Continued violation, after notice or prosecution, is an additional offense for each day of such continuance. 2 3. Exceptions, regulations, ete. — General permission may be grant- ed by the county commissioners for any animal named in par. 2 above to run at large in their respective counties. In counties where there is no general permission, township trustees may grant special permits, directed to individuals, and for particular animals described therein, revokable at the discretion of these trustees, upon three davs' notice in writing to the owner of such animal. Such i§ 4201. 2 § 4202, as amended, 78 O. L. 18. 468 ROAD LAWS OF OHIO. [CHAP. 20, 4-7 permission, whether general or special, will terminate on the first Monday of March in each year. 1 4. As to swine. — No permit can be granted for any swine to run at large ; and in case any person permits any swine belonging to him, or under his control, to run at large, he thereby loses the bene- fit of any permit issued to him as to any domestic animals whatso- ever, and also the benefits of any general permit issued by the county commissioners, and is subject to all the fines and penalties provided above. 2 5-7. Form of general permit. Office of Commissioners of county, Ohio, , 18 — . [Among other business done at a regular or special meeting of the board may be the following .] Ordered, that general permission is granted by this board for horses, cattle, and sheep [or state what animals, if more or less than these] to run at large within said county till March 1, 18 — . On the question of the passage of said order, all members of the board [or, and ] voted "Aye." J § 4203, as amended, 77 O. L. 318. The authority to commissioners of counties and trustees of townships to grant permission for animals to run at largo is constitutional, and it may be exercised by them, although they, in its exercise, relieve themselves from the duty imposed by the statute. A special permit granted by the township trustees, at a special meeting of the board, is valid, although two trustees only be present, and the person to whom the permit is directed be one of the two granting it. Fox v. Fox, 24 O. S. 335. Where the trustees by a majority, at a regular meeting, upon application made for a special permit, granted the same, and so informed the applicant, this was an official act of the board; and mere delay of the township clerk in recording such grant or order does not invalidate the same, if such record be afterward made up, such recording being only a ministerial act; and such permit, when issued, though signed by the trustees at a subsequent time, will relate back to the day on which it was authorized by the board. In such permit it is not necessary to describe particularly each animal, or state the number of animals; but it is a compliance with the statute if the description name the class or classes, and state that they are owned by or are under the control of the person to whom it is granted. Katcliff v. Teters, 27 O. S. 06. 2 £ 4203, as amended, 77 O. L. 318. Previous to the amendment, swine with their noses so cut or ringed as to prevent rooting were on same footing as animals mentioned in par. 2. CHAP. 20, 8-20.] ANIMALS RUNNING AT LARGE, ETC. 469 8-12. Form of special permit. Office of the Trustees of township, county, Ohio 18— To S. L.: At a regular [or, special] meeting of said trustees, held on , 18—, a special permit, allowing [here specify what annuals, or what class or classes of animals'], owned by you, to run at large in said township till March 1, 18—, if said permit be not sooner revoked, * was granted by said trustees to you. J. O, A. L., B. Q. [or any two of than], Township Trustees. [Or, By order of said trustees. A. B., Township Clerk.] 13, 14. Form of revocation of special permit. [Follow the foregoing to the * then add:] granted by said trustees to you ou . ]8 ~ - was revoked, said revocation to take effect three days after your receipt hereof. [Signed as preceding form]. 15. Return of service of this notice should be made to the trustees by the clerk, trustee, constable, or other officer or person serving it on S. L., which return may be as directed in paragraphs 86-91, of chapter 23. The minutes of the board should also fully show the granting, revocation, and return above mentioned. 16. No prosecution can be commenced to recover the penalties named in paragraph 2, above, until at least one day's notice has been given to the owner or person having charge of such animal, as the case may be; and it will be a sufficient defense to such prosecution to show that such animal was at large without the knowledge of such owner or keeper, and without his fault. 1 17-20. Form of notice may be as follows: ToS.L, .Ohio,—, 18-. You will please take notice that a horse [or otherwise state what animal or animals] owned by yon [or, in your charge] is now [or, was this morn- ing, etc.] running at large on the public road near [or otherwise say where, a,; the fact may be], and that I intend to file a complaint against you for suffering said animal so to be at large, before a magistrate [or state what one] having jurisdiction of that offense. [Here may he added, if so:] Said animal is now in the pound at [or state where, if taken up]. Very respectfully, etc., M. C. !§ 4-205. 470 ROAD LAWS OF OHIO. [chap. 20, 21-29 21. All suits to recover the penalties mentioned in paragraph 2 must be brought in the name of the State of Ohio, on complaint of a person feeling aggrieved, before a justice of the peace, or other court having jurisdiction where the offense is committed; the party offending must, on conviction, pay the amount of penal- tics adjudged, with costs; and all money collected as penalties must be paid into the treasury of the township where the offense was committed, for the use of common schools therein. 1 22-26. Form of complaint. State of Ohio, county, ss. Before me, II. M., a justice of the peace for sa'd county, personally came M. C, who being duly sworn according to law, deposes and says that on or about the day of , 18 — , at the county of , S. L. did unlawfully suffer two cows and one horse [or otherwise, as may be]. owned by [or, in charge of] the said S. L., to run at large in a public road, contrary to the form of the statute in such case made and pro- vided. [Signed by~] M. C. Sworn to and subscribed before me, this day of , 18 — . H. M., Justice of the Peace. 27. Warrant, trial, etc. — A warrant, embodying the foregoing complaint, or its substance, should be then issued, and S. L. should be brought before the magistrate, and there have a trial, as in other cases. 28. Owners, etc., liable for all damages. — The owner, or any per- son having in charge any animal mentioned in paragraph 2, above, allowing it so to run at large, will be liable for all damages done by such animal on the premises of another, without reference to the fence which may inclose the premises ; but this does not apply to damages so arising to a railroad. 2 29. Animal running at large may be treated as estray. — A person finding au animal mentioned in paragraph 2, above, at large, con- trary to the provisions of this chapter may, and any constable of any township, or any supervisor of roads in any township, or mar- shal or constable of any city or village, on view or information, 1 I 4204. Mayors of villages have jurisdiction throughout their county in such cases. See \\ 1824, 4204. 2 1 4206. CHAP. 20, 30.] ANIMALS RUNNING AT LARGE, ETC. 4/1 must take up and confine the same forthwith, 1 giving notice thereof to the owner if known, and if not known, by postog notices de- scribing such animals therein, in at least three pubhc places within the township; and if the owner does not appear and claim his property, and pay all charges for taking up, advertising, and keep- ing the same, within ten days from the .late of the notice, the an* mals may he proceeded with under the laws regulating estrays. 30 The mere act of any such animal running at large m or upon any of the places mentioned in paragraph 2 will he prhm f.R. R, 30. S. 172, 178; Bloom v. llichards, 2 O. S. 387; R. 11. v. Keary, 3 O. S. 201, 205 ;King v. Beek, 15 <). S. 55!\ 503. CHAP. 22, 2.] COMMON LAW OF ROADS. 481 when they meet, traveling thereon in vehicles or on horseback. Cooley, in his standard Treatise on Torts, says in one place, that " in order that there may bean equal enjoyment of the public high- way, it is usual to provide by law that where two persons meet they shall turn to the right of the middle of the main traveled path ; and in the absence of any statute, perhaps this requirement may be considered part of the common law of the laud. If one is injured by reason of the failure of another to observe this rule, he has his action for the recovery of the damages suffered, provided he was him- self free from fault. But one who finds that another whom he is about to meet is not turning out as he should, must endeavor to avoid collision, and if he takes no pains to do so, and a collision oc- curs, he may lose his remedy through his contributory negligence." 1 And in another place he says that "the custom of this country, in some states enacted into statute laws, requires that when teams ap- proach and are about to pass on the highway, each shall keep to the right of the center of the traveled portion of the road." 2 1 Cooley on Torts, 3U8. Citing Baker v. Portland, 58 Me. 199; S. C, 4 Am. Eep. 274; Daniels v. Clegs;, 28 Mich. 32. 2 lb. GG5. It is not the center of the sm,ooth or most traveled part of the road that is the dividing line, but the center of the worked part, although the whole of the smooth or most traveled pathway be upon one side or the other. Earing v. Lansing, 7 Wend. (N. Y.) 185; " unless the situation be such that it is im- practicable or extremely difficult for the party to turn out. . . . The questions of fact were properly left to the jury, and their verdict is war- ranted by the evidence.'' lb. See also Clark v. Commonwealth, 4 Pick. (Mass.) 125; Daniels v. Clegg, 28 Mich. 32; Commonwealth v. Allen, 11 Mete. 403. The law of the road as to turning to the right does not apply to street cars. One may turn to the left on meeting them. Hegan v. R, li., 15 N". Y. 380. By the Masschusetts Ilev. Stats , chapter 3, travelers in carriages, who meet in a road, are required, under a penalty, seasonably to drive to the right of the middle of the traveled part of the road; and they can not avoid the penalty by seasonably turning to the right of the wrought part of the road, though they leave sufficient room for travelers, whom they meet, to pass with convenience. and safety in the use of ordinary care and skill. Commonwealth v. Allen, 11 Mete (Mass.) 403. The rule of the road applies to the conduct of travelers as between them- selves. It< violation can not show want of care in regard to defects in the road. Grier v. Sampson, 27 Pa. St. 18'i. 01 61 482 ROAD LAWS OP OHIO. [chap. 22, 3-4 3. This is the statute law of Ohio as to travel on toll turnpikes, as may be seen in paragraph 64 of chapter 11. As to other roads, the statutes of this state are silent. But the custom mentioned by Cooley is in full force on all roads in Ohio. This seems to be so throughout the continent of Europe, 1 as well as throughont the United States. 4. Modification of the rule. — But this rule, whether enacted into statute or not, does not justify any one in causing a collision which a slight change on his part could have avoided; and the circum- stances may even be such as to make it his duty to turn to the left, or to stop in a suitable place till the approaching one has passed. Both parties must be careful, and do every thing that ought to be done by a reasonable and careful person to avoid accident. This will further appear in subsequent paragraphs. 2 1 Encyc. Brit., art. "Highways." In England, however, the " law of the road," enacted into statute law by the Highway Act of 1835, and as fixed by custom before that time, requires that persnns so meeting bhall turn to the left. See lb.; also Wade v. Carr, 2 Dow. & Ry. 165, in which case the court said that "whatever might be the law of the r nid, it was not to be considered inflexible, and imperatively governing a case of this description. In the crowded streets of a metropolis, where this accident happened, situations and circumstances might frequently arise where a deviation from what is called the law of the road would not only be justifiable but absolutely necessary. Of this the jury were the best judges, and, independently of the law of the road, it was their province to determine whether the accident arose from the negligence of the defendant's servants." See also Turley v. Thomas, 8 Carr. & Payne, 103. 2 O'Maley v. Dom, 7 Wis. 236. Where alternatives are presented to a traveler upon the highway as modes of escape from collision with an approaching traveler, it is a question of fait whether either might not fairly be chosen by an intelligent and prudent person. Larrabee v. Sewall, C6 Me. 376. One riding on the right side of the road is not bound to cross over to the left side to avoid a collision. Simmondson v. Stellendorf, 1 Edm. (N. Y. Sel. C.) 194. The law of the road (Mass. Rev. Stat., ch. 51, \ 1) extends to all places appropriated, either dejure or de facto, to the purpose of passing with car- riages, etc., whether they are so appropriated by public authority, or by the general license of the owners thereof, expressed or implied, and such ownersi while using their land as a road, must conform to this law. Commonwealth v. Gammon, 23 Pick. (Mass.) 201. Under the Maine Rev. Stats., ch. 26, it is the duty of persons meeting and chai\ 22, 5-6.] common law of roads. 483 5. Heavily haded vehicles, etc.— The rule of the road as to giving way is modified in favor of heavily loaded conveyances against horsemen, light vehicles, etc. These latter must leave the beaten path of the road, if there he sufficient room to pass; 1 and where a horseman or light vehicle can pass with safety to the left of a heavily loaded team, it is their duty to give way and leave the choice to the more unwieldy vehicle. 2 If there be not room to pass, such vehicle should stop at some convenient place to allow the other to pass/ 6. Going in same direction.— A traveler in a wagon may use the middle or either side of a road, at his pleasure, and is not bound to turn to either side to allow another going in the same direction to pass him, provided there is room enough. 4 passing each other upon the highway, " to drive to the right of the middle of the traveled part of the road or bridge, wh