#### HAMILTON COUNTY *v.*THE CINCINNATI AND WOOSTER TURNPIKE COMPANY.

Unconstitutional act — case—trespass by corporation agents — damages.

Where a legislative act is unconstitutional and void, or a corporation acting under its supposed authority, has caused an illegal act to be done, the corporation is liable in case for the injury to real or personal property, and its agents are liable as trespassers — the remedy is at law, not in chancery, except to enjoin their further proceedings — equity will not take jurisdiction of a question of damages merely against persons because they act without authority.

In Chancery. The bill sets forth that the county has expended $¡6765 19 on the road from Cincinnati to Columbia, in levelling, bridging and paving, and would shortly have finished and made it a free road: that the defendants were incorporated in 1828, and empowered to lay out and construct a road from Cincinnati, by the nearest and most eligible route, to Columbus, etc. and under their charter located their road on that of the county, appropriated the embankments, bridges, stone, etc. to their own use, that they have finished their road, erected two toll-gates, and are in the receipt of thirty per cent, profit. The bill prays an 'answer, an assessment of *604the county expenditures on the road and its repayment, and for general relief. To this bill there is a demurrer.

F. Worthington, for the demurrants,

contended that the act incorporating the defendants, allows them to construct the road on the nearest and best route, and to take from the land occupied by the road, any material for its structure without paying any damage therefor; but if there is any claim in the county for damage, it is one to be asserted in a court of law.

*Van*Matre, contra,

insists that the legislature had no legal right to take the property of the county and give it to the Turnpike Company, and any act to that effect is void.

Lane, J.

If it be true, as the complainants claim, that the legislature had no authority to confer the county or public property on, the turnpike company, and that the act passed on that subject is void; or if the company has exerted its corporate power, under the act, in an illegal way,, to the injury of the complainants, then the company agents are- trespassers, or the- company having caused the act, are liable in case for the injury. In either case a court of law can afford them redress: (5 *O. R.*224; 4 *O. R.*5.13, 14.). Where-simple compensation is sought for injury to real or personal property, a court of law is the proper tribunal to resort to, chancery does not take jurisdiction in such cases. If any jurisdiction of this subject pertained to this Court, it must be to restrain the parties by injunction. We are not applied to for that purpose, nor is the case made one in which such a remedy would be effectual; the injury is already done. Nor- are we called upon to say that a court of law ought to give damages in such a case. The simple question before us is, whether equity will decree a compensation in damages for an injury to real property, by persons who are said to act without authority. We think equity will not make such a decree. The bill is dismissed.