Ingersoll v. Herider 12 Ohio 527

*The following cases were decided at the December term, 1841, in bank, and are now furnished to the reporter for publication :

James Ingersoll v. Jacob Herider.

In a prosecution under the 10th section of the act prescribing the duties of supervisors, and relating to roads and highways, passed March 20, 1837, the defendant may show that travelers were not accustomed to pass the state-road obstructed by him, but that the travel was on a turnpike road, shorter and more convenient.

This is a Writ of Error to the court of Common Pleas of Hamilton county, and, on the last circuit, was reserved for decision in bank.

The original action was debt, brought to recover a penalty for obstructing a highway, instituted, originally, before a justice of the peace, and removed, by an appeal, into the court of Common Pleas of Hamilton county, where the defendant in error filed his declaration against the plaintiff in error, and, in the first count thereof, complains : For that the said plaintiff in error, on the 10th June, 1840, at the county aforesaid, fenced up the public highway, leading from Main street, in the town of Miami, to the Whitewater River, in said county; which said highway was and is authorized by a law of the state of Ohio, and did suffer said obstruction to remain, to the hindrance of travelers, twenty-four hours and more, contrary to the form of the -statute in such case made and provided, and whereby the plaintiff in error forfeited the sum of twenty dollars, and thereby an action hath accrued to the defendant in error, to demand, and have, of, etc.

In the second count, the defendant in error avers that the plaintiff in error, on the 10th June, 1840 — other obstructions made by him before that day in the public highway, in the county, aforesaid, autho528] rized before that time by a law of Ohio, ^did, for twenty-four hours and more, suffer to remain, to the hindrance of travelers, contrary to the form of the statute in such case made, and wrongfully and injuriously kept and continued the said obstructions, so existed, for a long space of time, to wit: for the space of fifty periods, of twenty-four hours, from the day and year last aforesaid, to the 2nd August, 1840, to the great hindrance of travelers, and contrary to the form of the statute, aforesaid ; by means whereof, and by force of the statute in such case made and provided, the plaintiff in error forfeited, *529on the 11th June, 1840, the sum of twenty dollars ; and, also, the further sum of ten hundred dollars, for the said fifty periods of twenty-.four hours, aforesaid, terminating on the 2d day of August, 1840, and thereby an action hath accrued, etc.; yet the said plaintiff in error, though often requested, hath not paid, etc.

To this declaration the plaintiff in error plead nil debet. The cause was then submitted to a jury, and a verdict rendered for the defendant in error, for $100. A motion was then filed for a new trial, by the plaintiff in error ; a remittitur entered by the defendant in error, for eighty dollars of the verdict so found by the jury ; the motion for a new trial then overruled, and judgment entered upon the verdict.

A bill of exceptions was taken during the progress of the cause, from which, among other things, it appears that the defendant in error proved, on the trial, that the state road, leading from Cincinnati to the town of Harrison, by the way of Miamitown, was laid out and established, agreeable to law, in or about 1807, and was duly opened and continued, until 1816. That the original road crossed the River Miami, above the town of Miami, and ran north thereof, west of the river ; that, in 1816, an application was made, by petition, to the county commissioners of Hamilton county, to alter the route of said road ; that the alteration was duly made, and reported to the commissioners, in 1816, and the report and survey ordered to be entered of record, and the alterations to be opened. There was no evidence that the original road had ever been vacated, nor any record of any subsequent proceedings, ^approving the report of the alteration and [520 survey, and order to record. It was proved, immediately after the report and survey; the alteration was duly opened, and had always since continued a public road; and that the old road had been shut up and discontinued ever since the alteration was opened.

It was also proved that the alteration, in 1816, on the west side of the Miami, was as follows : At State street, in th.e town of Miami, the alteration left the old road, and passed down State street, in said town, about one thousand feet, to the south side of the town; it then ran west, parallel with the old road, at the average distance, south of the same, from half of a mile, to two hundred yards, for the distance of about a mile and a quarter, when the alteration and old road again came together, and followed the same track thence to Harrison. It was also in evidence, that the plaintiff in error put his fence across the road, as altered, about half a mile west of the town of Miami, in 1839, and had continued it there ever since.

*530The plaintiff in error gave in evidence the charter of the Cincinnati and Harrison Turnpike Company, passed in 1831, and proved that, in 1832, the company constructed a road, under the charter, leading from Cincinnati to Harrison, crossing the bridge at Miamitown ; that between the two places, Cincinnati and Miamitown, the turnpike was laid upon the track of the state road, as altered, with the exception of three or four departures, for the purpose of straightening the road. In some places the two roads, the turnpike and road, as altered, were two or three hundred yards, and, at other places, a few rods distant from each other. That, in all the departures, the company had compromised the damages for the land taken, by the surrender of the ground, covered by the track of the old road departed from, to the owners of the land, and made an agreement to vacate the old road, at such points of departure. It was proved that the turnpike, west of Miamitown, left the track of the road, as altered, and passed north of said town, after reaching State street, and ran parallel with the state road, as altered, west, for about a mile and a quarter, where the turn-530] pike again came into the track of the old road, as altered, *and followed the same from thence, west, to the town of Harrison, with the exception of some few departures, at crooked places. It was proved that, between the bridge, at Miamitown, and the aforesaid junction, the turnpike runs parallel with the old road, as altered, the distance of one third of a mile, at the widest place, and about two hundred yards at the nearest point, and that the turnpike runs south of the track of the original state road, before the alteration, some few rods west of the town, and crosses the line of the same, at several points, before it reaches the junction west; and that the turnpike, from the place where it leaves the state road, at Miamitown, to the junction aforesaid, is shorter than the state road, as altered. The plaintiff in error also offered to prove, that he owned the land on both sides the state road, as altered, and, also, of the turnpike, and that the company agreed with him to vacate the state road, and permit him to fence it up, as altered, by way of compensation for damages, and that •it should be shut up and discontinued ; but the court refused to permit this evidence, so offered, to go to the jury, and charged the jury that the company had no authority to make the vacation and compromise, aforesaid, with the plaintiff in error; that the company had the rright to occupy the state road, as altered, so far as they followed the track ; but if the company made any material departure from the state iroad, as altered, the company ceased to have any power over it; and *531the state road, in such ease, between the point of departure and junction was, in no wise, vacated. The court further charged, that if the departure, where the obstruction was created, was material, the company had no power over the state road, to vacate it, or to make the compromise with the plaintiff in error.

The plaintiff in error also offered to prove, that the obstructions by him so placed, and the fencing up of the state road, as aforesaid, was not any hindrance or inconvenience to travelers, and that the same was not used by travelers when open ; that the turnpike was shorter and. better than the state road; but this evidence was rejected by the court.

*The plaintiff in error also objected to the evidence of the alter- [531 ation of the road, as being insufficient, without proof of the order of the county commissioners vacating the old state road; but the court admitted the evidence to go to the jury. To all which opinions of the court, the plaintiff in error excepted, assigns the same for error, and prosecutes this suit to reverse the judgment of the court of Common Pleas.

Morris and Rairden for plaintiff in error.

This is-an action of debt Nought to recover damages for obstructing a highway, under the tenth section of the act of March 20, 1837, entitled “An act prescribing the duties of Supervisors, and relating to Roads and Highways.” Vol. 35, O. L. 65.

This act provides, “ That if any person shall obstruct any road or highway, authorized by any law of this state, and suffer such obstruction to remain to the hindrance and inconvenience to travelers, any person so offending,” etc.

The intention of the legislature here, undoubtedly, was, to make the hindrance and inconvenience to travelers, which is caused by the obstructions being upon the road, the gist of the action. To constitute the offence contemplated by this law, there must be an obstruction placed upon the road, the obstruction must be suffered to remain, and the obstruction remaining upon the road, must be a hindrance and inconvenience to travelers. If such was not the intention of the legislature, why do they use the words “ to the hindrance and inconvenience to travelers.” The offence of placing the obstruction upon the road, would be precisely the same, without those words, if the intention had not been, to make the hindrance and inconvenience resulting from these obstructions, the reason of the offence.

In construing a statute, we are not permitted to exclude any words used by the legislature, when we can apply the law, and give to all the *533words used their appropriate meaning; giving, then, all the words in 532] this section of the act, their ^proper meaning, how can placing the obstruction on the road be an offence unless it results in a hindrance and inconvenience to travelers. We are supported in this view by a latter clause in the same section, which is as follows; “ And for every twenty four hours such person or persons shall suffer such obstruction to remain to the hindrance and inconvenience of travelers, such person or persons,” etc. By this latter clause it seems that the legislature were careful that their meaning and intention should not be mistaken ; the same words are retained,' and cannot, it seems to us, create an additional offence with any other construction than we have given.

If we are correct in this view, it is incumbent on the defendant in error to show by proof that the obstructions placed and suffered .to remain upon the road are a hindrance and inconvenience to travelers or the public.

It has been said, however, that this will be presumed, where the fact of the obstructions being placed upon the road is proved. If -this position be correct, (which we do not admit,) in the absence of proof to the contrary, it is certainly competent for the plaintiff in error to rebut the presumption by proof, and show that the acts done by him cause no hindrance or inconvenience to the public. The court of Common Pleas, therefore, erred in not permitting that evidence offered by the plaintiff in error to go to the jury.

The court of Common Pleas erred in permitting the evidence of the defendant in error to go to the jury, to prove this a public road or highway, authorized by a law of this state, and instructing the jury that the same was sufficient to prove the altered road an established highway.

The change of this road from the original route of the state road á-t this point was made upon the petition of Arthur Henrie, under the act', of 16th February, 1816. 2 Chase’s Stat. 945, 948.

The plaintiff in error insists that the proceedings of the county commissioners of Hamilton county, ordering this change, are irregular 533] erroneous, and incomplete, and do not ^establish the changed route “ a public road or highway” authorized by any law of this state.

The ninth section of the act above referred to provides the mode of changing an established road upon the application or petition of an individual, and that the county commissioners, upon receiving “ satisfactory information that the petitioner or petitioners have opened such *534road equally convenient i'or travelers and carriages, they shall vacate so much of the old road as shall lie between the different points of intersection, and record such vacation, which shall afterwards be a public road or highway.”

Thus it will be seen, that the altered route can only be a public road or highway, after the vacation of the old road and a record of the new route. And the only legal evidence of such altered route being a public road or highway, “ authorized by any law of this state,” is the record of such vacation and alteration.

It has been contended by the defendant in error that this alteration was made under the provisions of the third section of the act of 1816, and does not require a vacation of the old, and a record of the new route to establish this a public road.

The third section requires that “ previous to any application being •made to lay out a new, or alter an established road, such intended application shall be advertised,” etc.

This section is equally applicable to the second and ninth sections, as both declare the mode in which an application to lay out a new or alter an established road shall be made ; and the ninth section prescribes the only mode by which an alteration of an established road can be made upon the application of a single individual.

A public road, or highway, authorized by a law of this state must, we suppose, be laid out and established according to the law in force at the time such road is laid out and established, or legalized by some subsequent act of the Legislature.

If we are correct in our view of this act, the change, when made upon an application of a single individual, must be under the provisions of the ninth section, and that to establish the *new or [534 altered route a public road, the county commissioners must first vacate so much of the old road as lies between the different points of intersection of the old and new routes, and cause such alterations to be recorded. There is no provision for either establishing a new road or altering an established road that does not require a record of such road or alteration. And where the alteration is made upon the application of a single individual, a vacation of the old road and a record of the new is required to establish the alteration, and so we understand this court to'have decided on the circuit in this county, in the case of Doitrich v. Pendry and others.

It may be contended, however, on the authority of the case in 5 Ohio, 271, that the alteration is complete and establishes the new route *535without such record and vacation. We conceive a material difference between the ease in 5 Ohio, and the ease under consideration.

In the ease in 5 Ohio, there is no petition or order of the county commissioners establishing the road ; there is the report of the viewers and survey, and a full record of the road, and in the absence of proof to the contrary, the court presume the proper petition was on file, and the proper order made at the time.

In the case under consideration, there is a petition by a single, individual, the order of the county commissioners to view the proposed change, and the report of the viewers, but no order vacating the old road, and no record of either.

In the case in 5 Ohio, the court presume, in the absence of testimony to the contrary, certain acts to have been done when the necessary results of those acts are found on record, as the law requires. In the present case, there are certain acts done, which prove incomplete and insufficient either to vacate the old or establish the new route. And,, in this case, there is no record whatever.

It is contended by the plaintiff in error, that the state road from Cincinnati to Harrison, was, to all intents and purposes, vacated by the Cincinnati and Harrison Turnpike Company, in laying out and estab535] lishing their road, under the seventh ^section of the charter of said company, which provides, “ that if any part of said road shall be located on ground occupied as a county road, and which have been-'graded and improved by direction of the county commissioners, at the expense of the county, said company, before they collect any toll thereon, shall pay or secure to be paid to the satisfaction of the-county commissioners, the fair value to said company of such grading or improvement,” etc.

We suppose there can be no doubt that this provision in the charter was made to meet the very case now made. It was well known that the best route from Cincinnati to Harrison across the bridge at Miami-town, was occupied by the state road, and this provision was incorporated into the charter for the purpose of giving the company the-right to appropriate this road, or any part thereof, to their own use,, upon paying a fair equivalent for the improvements made on the road at the expense of the county.

If the turnpike road, under this provision in the charter was located substantially on the land occupied hy the state road, under any arrangement with the county commissioners, we think the state road would lose its character as such, and as a state road would be vacated.

*536The turnpike road was located on the exact track of the state road, the whole distance from Cincinnati to Harrison, except some slight variations for the purpose of avoiding a crooked route, where the-company departed from the land occupied by the old road, varying inth'e present case from one-fourth of a mile to a few rods, the distance between the two points of intersection being about one mile.

It seems to us clear that'the turnpike road occupying the track of the state road under the charter, except the very slight variations, the parts departed from are substantially vacated, as much so as the parts-actually occupied by the turnpike road.

Suppose the turnpike company to have established a toll-gate on their road between the two points of intersection, would it be said that this road must be kept open, and so give *an opportunity to [536-travelers to evade the payment of toll for the two ten miles on either side of such gate. The road being kept open in such case would be a complete trap to travelers to incur the penalty provided for in the eleventh section of the charter of the turnpike company.

The ninth section of the Cincinnati and Harrison Turnpike Com* pany’s charter gives the right to said company to erect toll-gates on-their road. The tenth section fixes the rate of toll which may be-charged by the company, and the eleventh section, or that part to which we refer, is as follows : “ If any person or persons using said road, shall, with intent to evade the law, pass through any private gate or bars, or along any other ground near to any turnpike gate which shall be erected pursuant to this act,” — “ shall forfeit and pay to said company,” etc.

We suppose it would not be contended that the road said to have been obstructed would not be vacated, if the company had erected a gate between the two points of intersection. It would be doiDg violence to the good sense of the Legislature to suppose they intended to-give the right to the company to appropriate the state road to their use, to erect toll-gates on the same, and inflict a penalty on those who pass round such gates, if the old road must be kept open at every trivial departure, as a lure to travelers to incur the penalty provided for in the charter.

The only reasonable construction is, that the old road at this point is vacated by the turnpike company, and if the action of the turnpike company, ea; vi termini, vacates the state road for one purpose, it is by the same action vacated for all purposes.

The court erred in instructing the jury that the turnpike company *538had no right or power to agree with the plaintiff in error, as the owner of the land through which both roads run, to close up the old road in lieu of damages for the land occupied by the turnpike.

We have seen that the turnpike company, under the seventh section 531] of the charter, have the right to locate their road *upon the land occupied by the state road. Now, what is the difference to public convenience, if the turnpike company, in locating their road, agree with the owners of the land through which- both roads run, to depart from the track of the old road and permit it to be closed, in consideration that the owner of the land will give ground for the turnpike road on a straight route, equally convenient for the travel of the public. In either case the convenience of the public is the same, and is wholly under the control of the owner of the land and the turnpike company, and it is highly probable that the turnpike road would have been located on the exact track of the state road but for this arrangement. The court of Common Pleas erred, therefore, in ruling the testimony out, and instructing the jury as they did.

William M. Corry for defendant in error.

By the diagram herewith presented, in explanation of the plaintiff’s exceptions, the court sees that this controversy is not vexatious merely —it is important. The plaintiff, living at the north end of Miamitown, proposes, by his obstruction, to force the traveling public away from a state road leading to the ford of the river, and to compel them to use the turnpike and the bridge. He has also shut in the other owners of fronts on such a road ; and the south end of town, where defendant resides, is cut off from all direct communication towards the west. This substantial injury, thus done to a large number of citizens of every description, results to the benefit of two corporations, the Harrison turnpike and the Whitewater bridge companies. The plaintiff is the instrument by which this wrong is done ; and the unteehnieal part of his excuse is, that he has by this means, and the consent of the former, indemnified himself against private loss. This is the reason given for condemning a mile and a half of state road, diverging from the turnpike a whole furlong in that distance, indispensable to the neighborhood, and a link of communication between the ford, mills, 638] and town of Miami and the country on one side. We *are at issue on its sufficiency, and will proceed to investigate the merits of the defence. The first question is, was there any road established by the action of the commissioners in 1816, and was not an order of vacation of the road of 1807 necessary? There was no such necessity, *539The argument of plaintiff to prove it is utterly fallacious. Its premises are a perversion of the facts and a mistake of the law. It assumes that because Arthur Henrie presented the petition to vacate, that the petition (now lost) was not signed as the law required. We say it was so signed, and this court will undoubtedly so presume on the authority of 6 Ohio, 166, and 5 Ohio, 271, after a lapse of more than twenty years. If this presumption were not one of law, it must be drawn from the fact that the petition covered all the road from, within seven miles of Cincinnati (Fenton’s) to the state line. What individual would presume to ask for the revision of fifteen miles of the state road? And yet the main argument of the counsel for the plaintiff is to show that the road of 1816 is a case where one person has requested the commissioners to alter a route on his own land, and. so falls under the ninth section of the road law of that year, in which event the owner of the land requests the alteration, and after certain proceedings, “ so much of the former road as shall lie between the different points of intersection, shall be vacated, the alteration recorded, and, afterwards, the new route shall -be a public highway ; ” Chase, 948. There Í3 no proof that Arthur Henrie ever owned a foot of land on these roads ; there is proof that plaintiff owns both sides, at a certain place. The counsel have totally mistaken the sections controlling these proceedings; they are the second, third, fourth and fifth sections of the law of 1816, (2 Chase, 946,) and not by any means the ninth, (Chase, 948,) as they suppose. I will not labor the point.

Second : Was the requisite proof of the establishment of the road of 1816 produced at the trial? The answer to this'question is very brief. If the road came into existence as we assert, it is the case in 4 Ohio, 79, where the original papers were ruled sufficient without the record; and if it should *be a road under the ninth section, it [539 makes no difference in the testimony. But that supposition is inadmissible.

Third : A fence across the public road does not hinder travelers nor put them to any inconvenience, because the turnpike company had a new road running between the same extreme points, and with this difference of route only at Miamitown, that it enters the north end of it and crosses the Whitewater Company’s bridge, within a furlong of the point at the south end, where the old road entered, going directly to the mills and ford ; and a traveler on horseback, or with his wagon, who crossed the ford from the east side of the river, and went up to the old road, half a mile on the west side of the town, to plaintiff’s *540fence, had only to turn back and get to the turnpike as well as he could. As to the other land owners on the old road, for the mile and a. half front, though obstructed, they had no business to complain, because they were not travelers in any correct sense of the word. The statement of this argument is its refutation.

Fourth : Plaintiff avers that the old road was vacated by the turnpike company at the place of obstruction, not by actual user, but because the departure was very slight, and only made to avoid a crooked route. The old road was substantially occupied. How far the property of the citizen in the easement of public highways can be divested, by a special charter for a turnpike company, is one of the gravest questions which this tribunal may have to consider. But in this ease-there is no occasion for going into that subject. The case is clear upon other principles.

1. Plaintiff did not show any agreement to pay, nor any payment of the value of the old road by the turnpike company to the county commissioners. This was indispensable, both to the right of collecting any tolls on the road (7 sec. Charter,) and, a fortiori, of their right to prevent its use by the public.

2. The whole mass of testimony bears down the plaintiff’s position,, that the variation of the route was slight, and that the turnpike lay substantially upon the track of the old road. There was a most mate-540] rial departure from the track. It is *precisely analogous to the course of Yine and Sycamore streets extended on the north side of Cincinnati. These streets are great thoroughfares for the country to-different sides of that city; out of which they run up two converging-ravines, until they intersect just over a mile to the north. Who would presume to fence up either of them ? What man would listen to the-argument, that one of them was a slight variation of the other, and that a certain turnpike charter authorized him to vacate either ? The attempt would be utterly abortive. Any obstruction would be indignantly removed in an hour, though ever so formidable, by a rising of the community; and shall the people of Miamitown, in the same instances, aggravated by the loss of a public ford, be so unjustly treated by two companies who were never certainly chartered, the one to hold and the other to skin the traveling public.

Fifth : I hardly know what to say to the fifth proposition of the-opposite counsel. It is very obscurely stated in their argument; but the court will find that it is insisted upon. They quote several sections of their charter to show a right of punishing evasion of the *541toll-gate, and then speak of these deviations of their road from the state road as furnishing lures of that sort to travelers. By such an argument they expect to impress this court. No one can fail to see that so far from requiring its assistance they have only to help themselves. If they plant their gate at the intersection of the two roads instead of between the intersections, it can not be evaded. And why should not this company, if it be more convenient to vacate the old road than to put the toll-gate in the right place, or remove it from a wrong one, petition for that purpose like other citizens ? Simply, because usurpation is more grateful than justice to the passions, and a charter in this country is become only the more effectual by being the very last hold of usurpation. So fearful are freemen even yet of its power, that they hardly question any of its acts ; and in the present instance a whole town submitted to the deprivation presented by these proceedings, very probably under the mistake that a special law granting privileges to corporators could cut off ^travel on the state [541 road and shut up men in their own houses.

Plaintiff's positions were all overruled by the court successively, and they held that, in the last place, if the company could not vacate the state road of 1816, through Miamitown, they had no power of that sort to grant to the plaintiff. Hence the agreement about compensation for his damages was ruled out below. The ease is with this court. The defendant supposes that the Common Pleas settled the case correctly, and that there is no error in his record.