CHANGE OF GRADE.

[Franklin Circuit Court,

September Term, 1894.]

Stewart, Shauclc and Shearer, JJ.

#### Theodore Leonard v. Thomas D. Cassidy et al.

1. Owner of Unimproved Rots has no Right of Action.

The owner of unimproved lots is not entitled to damages for or a suit to prevent a change of grade though it may be by a fill and high viaduct to lead to the street across railway tracks.

*2.*But if Grade Encroaches, He is Entitred to Compensation.

But if the slopes of the fill, as planned, will occupy part of plaintiff’s premises, he is' entitled to an injunction until compensation for the encroachment is made.

On Appear from the Court of Common Pleas of Franklin county.

On the demurrer to the petition.

The substantial allegations of the petition are that the defendants, Cassidy, McDonald and Bigger, are the county commissioners of Franklin county, and the defendant, The Etna Construction Company, a corporation organized under the Jaws of New Jersey and doing business ac Columbus, Ohio. The plaintiff is the owner in fee of lands described abutting on St. Clair avenue. The commissioners have entered into a contract with the construction company for the erection of a •viaduct on said avenue in front of ihe plaintiff’s premises and over railroad tracks which cross it, the viaduct to be 21 feet above the tracks, the approach to be without retaining walls, and of such height and width that in view of the necessary •slope, the base will occupy not less than 9 feet of the plaintiff’s premises, and the roadway will be 24 feet above the present grade of the street in front of the plaintiff’s premises. The lands of which plaintiff’s lots are a part were located and platted with referenced said street, and the existing grade thereof. By the proposed •change of grade, and by cutting off the use of other streets in the vicinity, plaintiff’s enjoyment, and means of access to his lots will be greatly impaired. St. Clair avenue is a public highway, open to the public without charge. There is •no allegation that the plaintiff has improved his lots, or any of them, with reference to the existing grade. No proceedings have been instituted to appropffate the plaintiff’s lands, or any portion thereof, or any right therein. The prayer of the petition is that the defendants may be enjoined from the prosecution of the ■work of constructing the viaduct and such approaches until after they have appropriated and paid for the property of the plaintiff so to be taken.

Shauck, J.

The complaint of the plaintiff is, that the defendants, without payment or appropriation, are about to interfere with his facilities for ingress to his property •by substantially changing the grade of the street on which it fronts, and to occupy with the proposed fill a strip thereof nine feet in width.

We are not prepared to hold that in any case the authorities having charge of •streets and roads are required to appropriate the right to change the grade thereof, however well it may be established that an abutting owner may in certain cases, recover such damages as he may sustain by reason of such change If an improvment of this character is made wholly upon ground already owned by the public, the interruption which it may occasion to an abutting owner’s means of access may not be a taking of his property within the provisions of the 19th section of the bill of rights. Whether it is or not, the case does not require us to ■determine. The numerous cases in which the abutting owner’s right to recover the damages resulting from change of grades is recognized, all require, as an indispensable condition to the right, the improvement of his property with reference to a previously established grade, or a reasonable grade. We are aware *481of no case in which a change of grade in front of unimproved lands has been regarded as the foundation for any form of action. *Crawford*v. *Delaware,*7 O. S., 460.

*G. J. Marriott,*for plaintiff.

*Geo. B. Okey*and *C. C. Williams,*for defendant.

Counsel for the defendants contend that the right to take the strip of the plaintiff’s lot for the base of the proposed fill is conferred by the nineteenth section of the bill of rights, since the petition shows that St. Clair avenue “is a public highway open to the public without charge.” This section does not execute itself by conferring'the power of eminent domain upon the commissioners or any similar board. It assumes that by the general grant of legislative power this incident of sovereignty is vested in the general assembly, and defines the modes, and limits the extent, of its exercise by that branch of the government. *Lamb*v. *Lane,*4 O. S., 167; *Giesy*v. *Railroad Co., 4 O.*S., 308; *Shaver*v. *Starrett, 4*O S., 495; *Ferris*v. *Bramble,*5 O. S., 109.

It is, therefore, indispensable that there be a proceeding according to legislative authority for the assessment of the owner’s compensation. If we look to the act of April 11, 1893, 90 O. L., 170, we find authority conferred upon the commissioners “to build a viaduct across the railroad tracks at the intersection of St. Clair avenue.” Authority to take property for the widening of the avenue is not expressly given. The act does provide that “in the exercise of their powers and the performance of their duties in that behalf, said commissioners shall be governed by the general statutes upon that subject, except in so far as their powers and duties are prescribed by this act..” But counsel agree that the statutes contain no authority for the taking of property for the widening of a street or road under the circumstances of this case. Whether they do or not, is perhaps not Important, since it appears that no proceeding to assess the plaintiff’s compensation has been instituted by the defendants.

The plaintiff is entitled to an injunction restraining the defendants from encroaching upon this land as proposed. Though that is the extent of the relief to which he is entitled, the demurrer must be overruled.