(Crawford County Common Pleas.)

#### THE OHIO POSTAL TELEGRAPH CO. v. THE C., C., C. & ST. L. RY. CO. ET AL.

*Appropriation of property*— Extent *of jurisdiction of the probate court*— Amount *of compensation and damages recoverable under sections*3454, *et seq.*—

(1) . The decision of the probate court in appropriation proceedings .brought by a private corporation, in favor of the right to make the appropriation, is final, and error does not lie to such decision. On error in such cases, the court of common pleas has jurisdic tion to review only questions arising on the assessment of compensation and damages.

(2) . In appropriation proceedings brought by a telegraph company to condemn a right to erect poles and wires along the right of way of a railway company under sections 3454, et *122seq., nominal damages only are recoverable.

(Decided December 30, 1900.)

YOUNG, J.

The Postal Telegraph Company filed its petition in the probate court of Crawford county, Ohio, to appropriate the right to erect a line of telegraph poles and string its wires on a five foot strip being a part of and on the side of the right of way of the railway company ip the manner and subject to the conditions and limitations prescribed by sections 3454, 3456, 3458, 3459 and 3468, Revised Statutes of Ohio.

The probate court decided the jurisdictional questions in favor of the telegraph company at a preliminary hearing on the 16th day of January. 1900, that the plaintiff was a corporation; that is had the right to make the appropriation; that it was unable to agree with the owner; and that the appropriation was necessary.

A jury was empaneled and the question of the amount of the compensation and damages was submitted to them, resulting in a verdict of $6750.00, on the —day of March, 1900. Within the ten days provided by law each party filed a motion for a new trial. The defendant’s motion was on the 22nd day of March, 1900, overruled, and the plaintiff’s motion was overruled on the 29th of March, 1900, and exceptions taken on both sides. Judgment was entered confirming the verdict.

On the 23rd day of April, 1899, the defendant railway company filed Us bill of exceptions showing all of the evidence and exceptions at the preliminary hearing. A bill of exceptions was also filed by the plaintiff, telegraph company, showing all of the evidence, charge of the court and exceptions on the trial to the jury.

This proceeding in error was commenced by the telegraph company, the railway company filing a cross-petition in error in this court. The cross-petition in error complains of errors occurring at the preliminary hearing, and the petition in error complains of errors occurring at the trial to the jury. A motion is interposed to strike the bill of exceptions taken to the rulings of the probate court at the preliminary hearing, from the files.

This motion is sustained for the following reasons:

First: The decision of the probate court on the preliminary or jurisdictional questions is final, at least where the decision is in favor of the right to appropriate. There are no provisions of law for taking bills of exceptions or prosecuting error to the judgment of the probate court on these questions. Proceedings for the appropriation of property by private corporations are entirely governed by special statutes, which prescribe a complete code not' only for the preliminary hearing and trial to the jury, but also for the prosecution of error. These special statutes-are found under the title “Appropriations of Property”, sections 6414 to 6453,both inclusive, Section 6420, which governs the preliminary hearing, provides that upon these jurisdictional, questions the burden of proof shall be upon the plaintiff, and any interested person shall be heard. Section 6422, which governs the trial to the jury, provides that the property holders shall hold the affirmative on the trial, which shall be conducted, and evidence shall be admitted and bills of exception may be taken as provided in civil actions. It must be noticed that sections 6422 does provide for taking bills of exceptions at the trial to the jury in this special proceeding as if it were a civi action, while 6420 makes no such prov sion for saving exceptions at the preliminary hearing. That this was by no oversight on the part of the legislature is shown by other sections of this special code. By section 6433, for instance, it is provided that upon payment of the award of the jury -or deposit of the amount thereof with the probate judge together with the costs, the plaintiff shall be entitled to take possession of, and shall hold the property rights or interests appropriated, for the uses and purposes for which the appropriation was sought, as set forth in the petition, and the probate judge shall enter of record an order to that effect and if necessary proper process shall be issued to place the plaintiff in possession thereof. This completes the appropriation, and the title to the property has passed to the plaintiff. It never passes back. This is true even though error-is successfully prosecuted by' either party. No reversal can divest this title. In so deciding I am aware of the decision in the case of Street Railway Co. v. Street Railway Co., 6 C. C., 362; affirmed in 50 Ohio St., 603. In the case of Wagner v. Railway Co., 38 Ohio St., 32, the supreme court construed these sections of the statute in a case requiring their construction. What that construction was, as understood by the supreme court, is indicated in Railway Co. v. Bailey, 39 Ohio St., at page 171, where in the opinion, Okey, J., says: “On petition in error by Bailey, the court of common pleas reversed the judgment so far as it may be reversed" in view of the rule stated in Wagner v. Railway Co., 38 Ohio St., 32.” This is, the assessment of compensation and damages in the probate court may be reversed and the case retained by the common pleas court for another ascertainment of the amount of compensation and damages. On the construction *123■of these sections given in Wagner v. Railway Co., supra, that is as far as the case is within the jurisdiction of the common pleas court.

‘ Newbegin *&*Newbegin, (Defiance, O.) and Beer *&*Monnett, (Bueyrus, O.),for Telegraph Company.

Foote and Estabrook, for Railway Company.

Second: Even if the decision of the probate court is not final on the jurisdictional questions, the bill of exceptions thereto was not taken or filed in time.

On the trial to the jury, the bill of exceptions on which the petition in eiror of the plaintiff is grounded, among other things, shows that the defendant was permitted over the objection of the' plaintiff to prove the value of this five foot strip and to prove that this line of telegraph would interfere to the detriment of the defendant in the operation of its railroad. The charge of the court did not confine the recovery to what it was possible to appropriate under the statutes. All that could be appropriated was a right to erect poles and string wires in such a manner as not to interfere with the use of the’ defendant of its railroad, and subject to be removed on notice that the railroad desired to use the part of the right of way occupied by the poles and wires; subject also to be removed clear off of the right of way on notice, whenever the defendant should have occasion to use all of its right of way for railway purposes. The compensation and damages for such an appropriation could not be other than nominal. That this testimony and this charge did mislead the jury is shown by the amount of the verdict.

The judgment of the probate court confirming the verdict is reversed, and the cause will be retained here tor the assessment of compensation and damages by jury.