ONE MILE ASSESSMENT PIKE LAW.

[Franklin Circuit Court,

January Term, 1894.]

Stewart, Shauck and Shearer, JJ.

#### †Grove v. Commissioners (Franklin Co.).

1. The One Mile Assessment Pike Law is not Unconstitutional.

The provisions of secs. 4774 to 4828, Rev. Stat., commonly known as the “ one-mile assess^ ment pike law,” are not in contravention of section 19 of Article 1 of the Constitution-

2. The Word Damages, as Used in Said Statute, Includes Compensation.

The word “ damages,” as used in said sections, except where the contrary clearly appears, includes compensation.

3. Private Property may be Taken Under this Act.

Under said enactments, a one-mile assessment pike may be laid out and established over private property.

Error to the Court of Common Pleas of Franklin county.

On March *1,*189B, Leroy Tussing and others filed with the board of county commissioners of Franklin county, a petition praying the appointment of road commissioners to lay out and establish in accordance with the laws relating to one-mile assessment pikes, a free turnpike road along the route therein described, which route coincided with the line of an existing established road until it reached the old Hebron road, from which point the course proposed crossed the lands of the plaintiff in error, James K. Grove, and terminated in the National road; and for the levy of an extra tax upon the taxable property within the bounds of the proposed improvement, to pay for the same.

To the granting of the prayer of said petition, Grove, the plaintiff in error, filed objections upon the ground that:

“ From the point where the line of said pike leaves the old Hebron road, 'the course thereof extends northwardly upon the section line across the lands of said James K. Grove * * * to the National road over which no public highway hajs heretofore been located and; established; that to locate and establish said pike upon the line thereof will take private property of the said James K. Grove ® * * for the space of the full width thereof across said tract of land, for which no compensation and damages have been paid, nor agreed upon j and that said commissioners have no power or authority under the constitution and laws of Ohio to appoint road commissioners to lay out and establish said pike upon and across the lands of the said Grove * *' until after the establishment of a public highway thereon according to law, and the payment of compensation and damages for lands taken and injuries done."

*383The commissioners found the facts stated in said ‘-‘objections” to be true, but ‘ ‘differing with the said Grove as to their power to appoint said road commissioners,” overruled said objections and made said appointment, to which Grove excepted, and filed in the court of common pleas a petition in error, together with a transcript of the proceedings in said matter had by and before said commissioners, praying a reversal of the orders aforesaid.

The court of common pleas affirmed the orders of the commissioners,‘and this proceeding is prosecuted to obtain a reversal of the judgment of affirmance and the action of said commissioners.

†

This judgment was affirmed by the Supreme Court, on authority of this opinion of the circuit court; no further report, 52 O. S., 664.

Shearer, J.

The material question presented in the record is whether the act commonly known as the ‘‘one-mile assessment pike law” contravenes sec. 19 of art. 1 of the constitution, in that it does not provide for making to the owner compensation in money for lands appropriated for the construction of the road.

The act itself does not in terms make such provision; but it is claimed that sec. 4803, Rev. Stat., is an adoption into the act of the provisions of chapters 2 and 4 of Title VII, Rev. Stat., relating to compensation, damages and appeal; and that by resort to those provisions the constitutional objection urged here is obviated.

We do not think it necessary to consider the entire scheme of road construe-. tion embraced in the ‘‘one-mile law.” It is sufficient to examine those sections which bear directly upon the question involved.

Nowhere in this act is there used the word ‘‘compensation;” but it is urged that the word ‘‘damages,” in sec. 4803, is used comprehensively and includes compensation.

- This section provides that all questions of damages shall be settled in the manner pointed out in chapters 2 and 4 above mentioned.

Referring to those chapters, we find in section 4642 a provision for the appointment of viewers to determine compensation to be paid for lands taken,' and to assess how much less valuable the premises will be rendered by opening the road. Section 4645 provides for notice to landowners of the time and place of the meeting of the viewers and of the day by which claims for 'compensation shall be filed. Section 4646 enacts that such viewers shall assess the compensation and damages sustained by landowners, through whose lands the road is to be located, etc., who have complied with the requirements of sec. 4647, respecting filing their claims, and sec. 4651 provides for the payment of such damages. We find no express provision for the payment of compensation, although it is required to be determined by the viewers.. The money to be paid is called damages.

Chapter 4, which is also adopted into the ‘‘one-mile law,” relates to appeals, in road cases.

“ Section 4688 provides that an appeal to the probate court may be taken by any person having an estate in lands in the township in or through which a new road passes. This appeal is from the final order of the commissioners.

“ Section 4691 requires that if the proceedings prior to the appeal are regular, etc., and no exception be taken by any claimant for compensation or damages to the assessment approved by the commissioners, the probate court shall affirm the order of the commissioners ; otherwise, the proceedings shall be set aside and another view ordered by viewers appointed by the court, who shall perform the same duties as the original viewers.

“ Section 4699 authorizes an appeal to the probate court by a claimant for damages and compensation, from the final decision of the commissioners confirming the assessment of compensation and damages made by viewers in his behalf, or the refusal to award damages; and by sec. 4700, a jury of twelve men is provided for the trial of such claims.”

There is great confusion in the road legislation and nowhere is it more apparent than in the act under consideration.

The multitude of separate acts which stood upon statute books previous to the revision, have been gathered under appropriate titles, but without pains to-bring them into harmony, as might have been done, without doing violence to *384the general scheme of the enactments. The result is doubt, uncertainty and •difficulty of construction; but we must endeavor to harmonize these provisions, .and, if practicable, uphold them.

*Marriott &*Hughes, for plaintiff in error.

*Donaldson <$f Tussing, contra.*

Those sections which prescribe the duties of viewers, notice to landowners ¡and duties of claimants in respect to filing their claims, procedure on appeal, etc., contain both the words *compensation*and *damages.*Some sections providing for the payment of claims of applicants refer only to *damages*(4651); others use the words indifferently; for example, sec. 4709: “But if the *damages*so ¡assessed exceed, etc., * * the county commissioners * * may * * -order the *compensation*and *damages*to be paid, ’ ’ etc.

Is it not clear that the word “damages,” as used in sec. 4651, comprehends compensation ? If it does not, then there is no authority for the payment of compensation where a county road is opened upon order of the commissioners based upon a report of the viewers.

In *Anderson*v. *McKinney, 25 O. S.,*467, construing the sixth section of the act of January 27, 1853, now sec. 4647, Rev. Stat., which provides that application for *damages*are barred unless they be presented as provided in chapter two, the Supreme Court held the bar to apply also to *compensation.*It seems to have treated the words as convertible terms.

We incline to the opinion, notwithstanding the omission of any express provision for compensation to landowners for lands appropriated for the construction of roads, the proper construction is that “damages,” where used alone in these statutes, includes compensation. Certainly it was not the purpose of the general assembly to provide for the ascertainment of the value of lands taken for public use, for appeals from the assessment of such value, etc., and provide no means for their payment.

There is no great violence to language in treating “compensation” and “damages” as synonymous. Compensation is defined, “What is given to supply .a loss.” Damages — “Money awarded by a court of law on account of loss or injury.”

These definitions are substantially the same, and we hold that the provision •of sec. 4803 applies as well to compensation as to damages in the road laws.

The contention that the one-mile law does not authorize the construction of a free turnpike over a route other than one that coincides with that of an existing established highway, is not well founded. Section 4774, Rev. Stat., expressly authorizes the laying out and establishing of a free turnpike road ‘ ‘between any points” within the county. Broader language could not be used. The power •of the commissioners, so far as the route of the road is concerned, is without restriction; and, if we are right in our interpretation of the statute in respect to •compensation, the argument of plaintiff in error, that in order to uphold the «constitutional validity of the statute,-the pike can be established only upon and •over the line of an existing highway, is without force. There can be no doubt -of the power of county commissioners to lay out and establish a one-mile assessment pike over private lands. Certainly it was not in the mind of the legislature that a sort of statutory roadbed must be previously provided by the •establishment of some other highway before a one-mile pike can be laid out.

We think that the plaintiff in error might have asserted a claim for compensation and damages to the road commissioners. Had that been done the county commissioners would have been required to appoint viewers to assess and determine the amount to be paid, and the same could have been paid from the county treasury.

Judgment affirmed.