ROADS.

[Hamilton Circuit Court,

January Term, 1889.]

Smith, Cox and Swing, JJ.

#### †CHESELDINE v. HAMILTON COUNTY (COM’RS.)

1. County Liable for Change in Grade op a Road.

Where the County Commissioners, under an act of the legislature, proceed to improve *3*road, and in doing so change the grade of the road as heretofore established, an ownei of land abutting on such road, who has improved his land by placing buildings, etc. thereon, such improvements being made with direct reference to the grade of th< road as then established, has a cause of action for damages against the Count} Commissioners, where by such change of grade his access to and from the roac to his land is interfered with.

*5342. Not an Action Founded on Tort.

Such cause of action is not founded on the tort or negligence of the county commissioners.

Error to the Court of Common Pleas of Hamilton county.

†

This judgment was affirmed by the supreme court without report, May 24, 1892.

SWING, J.

Plaintiff brought his action in the court of common pleas, alleging in substance that he was the owner of certain real estate in Bond Hill, fronting ioo feet on what is known as the Paddock road; that he had improved said premises by building a dwelling-house, barn and other valuable improvements; that said road had an established grade, and that said improvements had been made with reference to said grade.

That said defendants, acting under an act of the legislature of Ohio authorizing the improvement of said road, had without any notice to him, and without having paid him for the same, changed the grade of said road, by which change the grade was raised from five to seven feet in front of his said premises, whereby plaintiff’s access to said road was greatly damaged, the amount of damage claimed .being $i,ooo. .

The commissioners filed a general demurrer to the petition, and the court 'below sustained the same; and this action of the court is the ground of error ¡relied on here.

Has the plaintiff stated a cause of action?

In the first place, has his property been taken, for which, under the constitution of the state, he is entitled to full compensation in money?

What right has he in the highway, and what right has he in the access to his property from the highway?

It seems to us that these questions have been very clearly answered by our supreme court, commencing with the case of Crawford v. Delaware, 7 O. S. 459; Street Ry. Co. v. Cumminsville, 14 O. S. 523, and Jackson v. Jackson, 16 O. S. 163, and other cases. In the last case, the court, at page 168, after referring to the Crawford and Cumminsville,' *supra,*cases, and what they had decided, says:

> “The private rights of the owner of lands in the highways, upon principle, are the same as those of the owner of lots in town to the adjacent streets. * * * Such owner 'has a private right of access to and from the street or highway, and when he has made improvements on his land with direct reference to the adjoining highway as then established, and with reasonable reference to its prospective improvement and enjoyment by the public, he has a private right of way or passage to and from the highway as it then exists, and any substantial change in the highway to the injury of such passage or way is an invasion of his private property.”

It would seem, after reading the decision of the court in this case, that it' would be unnecessary to consider this branch of the case any further, for it is clear that, if the allegation of the plaintiff’s petition be true, he has been deprived of Ins property for the public use and without compensation, and it results that he must have a cause of action against somebody.

Is it against the county commissioners? We think it is.

The case of Badgely v. Commissioners, 1 Disney, 316, is directly in point. And while it is not an authority that we are compelled to follow, we can see no escape from the reasoning and conclusions of the court. The court says, at page 320:

> “The property of plaintiff has been taken and appropriated to the use of the county by its properly authorized agents, and for a lawful purpose. It has been thus taken without the plaintiff’s consent and without being paid for. The law says it shall be paid for, and has provided a remedy, but the special remedy thus provided has failed the plaintiff without fault on his part. He is therefore remitted of necessity to his action against the county, as at common law, for the damages he has sustained.”

The theory of counsel for the county commissioners, that plaintiff’s cause of action was founded on the negligence of the commissioners, is not correct, and the authorities relied on do not app’y to the case at bar.

*535Miles Johnston, for plaintiff in error.

W. A. Davidson, county solicitor, *contra.*

The judgment of the court below in sustaining the demurrer of the defendnts was erroneous, and the same will therefore be reversed, and cause remanded 3r further proceedings.

(Affirmed by supreme court without report, May 24, 1892.)