#### Muskingum Watershed Conservancy District, Appellant, *v.*Fry et al., Appellees.

(Decided December 18, 1938.)

*Messrs. Wilkin, Fisher & Limbach*and *Mr. Warner Pomerene,*for appellant.

*Mr. Thomas H. Wheeler,*for appellees.

Lemert, J.

This cause of action comes into this court based upon the sustaining of a demurrer to a petition filed by the appellant, the Muskingum Watershed Conservancy District, against appellees, Otto Fry and Amanda Fry, his wife.

The petition so filed grows out of a condemnation suit by the conservancy district brought against Otto Fry and others, condemning lands for use by the conservancy district.

This cause or suit was commenced under Section 11072, General Code, which reads as follows:

“When there are diverse or conflicting claims, legal or equitable, to the real estate, or any interest therein, *324sought to be appropriated under the provisions of this chapter, the jury or court shall not pass upon them in the proceedings for appropriation.”

Section 11073, G-eneral Code, provides:

“Upon the payment of the money into court by the corporation, a party claiming a legal or equitable interest in the property, or the money arising therefrom by such appropriation, may file his petition in the Common Pleas Court of the proper county, making the other claimants to the property or money parties thereto, setting forth the facts on which the claim is founded, the fact of the appropriation of the property, the amount of money so paid in and such other facts as are required to enable the court to hear and determine the matter between the claimants.”

The condemnation suit was brought by the Muskingum Watershed Conservancy District against Otto Fry and others, under the Conservancy Act of Ohio, Sections 6828-1 to 6828-79, inclusive, G-eneral Code. An appraisal record was filed by the Muskingum Watershed Conservancy District with the Court of Common Pleas of Tuscarawas county, Ohio, the county in which the conservancy district was organized, and the appraisal record was approved by the court. The defendants herein filed written notice, appealing from the award of the appraisers as to compensation and damages, and thereupon demanded a jury trial. The court ordered the directors of the plaintiff district to begin condemnation proceedings according to law in the county where the lands were situated. The jury returned a verdict in that condemnation case. . No appeal was taken, and the compensation and damages allowed by the jury were paid into court. The conservancy district has been in possession of the premises since that time.

The Muskingum Watershed Conservancy District filed its petition February 17, 1937, in the Common Pleas Court of Coshocton county, Ohio, setting forth *325that the premises were and are described in the appraisal records, book 4, page 115, under index Nos. 3399, 3401 and 3403, of the appraisal record, and are described therein as being 175.44 acres of land in Newcastle township, Coshoeton county, Ohio, as more fully appears in said appraisal record, more particularly described as lot No. 20, part of lot No. 25, west part of lot No. 25, and northeast part of lot No. 24, U. S. M. S., range 9, township 6, first quarter, Coshocton county, Ohio.

The plaintiff did not, in the petition,filed in the condemnation suit, claim any canal lands, and recognized the deed of the defendants, which included the premises set forth in their petition, to wit, a certain tract as therein described and designated, containing 175.44 acres of land.

We note from the record that the plaintiff filed a plat of lands condemned, which was used by both plaintiff and defendants. This plat was marked “property to be acquired,” etc., and within the boundaries of this plat was embraced all land described and included in that part of the farm marked “abandoned canal.”

In the original condemnation suit the plaintiff set forth in its petition that the estate sought to be appropriated consisted of a *fee-simple*estate and that the only defendants were Otto Fry and wife, admitting that the defendants were the sole owners in fee under Section 11046, General Code.

Provision is made for the determination of all jurisdictional questions in the appropriation of property, but under the Conservancy Act of Ohio these jurisdictional questions are taken care of by the filing of what is known as an “appraisal roll” and the adjudication thereof by the Conservancy Court which is taken care of as provided in the ease of the *Miami Conservancy Dist.*v. *Bowers,*100 Ohio St., 317, 125 N. E., 876.

The demurrer to the petition was sustained by the *326Common Pleas Court and the plaintiff, appellant here, claims that the court below erred in sustaining it.

It is the contention of the defendants, appellees here, that Sections 11072 and 11073, G-eneral Code, hereinbefore quoted, and under which this petition is filed, do not apply when the plaintiffs and defendants are the identical persons named in the original condemnation suit, and only apply when the interest of third parties may intervene.

Plaintiff has cited numerous authorities in its brief but we are of the opinion that the authorities cited do not apply, for the reason, as set forth in plaintiff’s petition, that the condemnation suit was filed February 17, 1937, and that the conservancy district in its brief sets forth that the canal lands were claimed by them by virtue of 116 Ohio Laws, 135, passed April 5, 1935, and by deed dated June 2,1936, from the state of Ohio, which would be a year previous to the filing of their petition in the condemnation suit.

On the matter or question of title we find it stated in 20 Corpus Juris, 967, Section 376, that:

“If the petitioner recognizes the person in possession of the land as its owner by instituting against him a condemnation proceeding, no issue is raised as to the title to the land, and such person will not be required on the trial to prove his title, since the petitioner will not be permitted to deny it. So where the owner brings an action to recover the land, a plea by defendant for condemnation is an admission of plaintiff’s title. The condemnor need not, however, admit the nature or extent of the alleged owner’s title, but may prove it at the trial. But while the condemning party is bound by its allegation of title in defendants, the latter are not bound by the petitioner’s averments, but may show the true state of facts and what their right and title actually are.”

In the case of *Northern Pacific Ry. Co.*v. *Jackman,*6 Dakota Rep., 236, 50 N. *W.,*123, it is held that if the *327company has paid the amount into court, it cannot, on an order to show cause why the fund should not be paid to a certain person claiming to be the owner, contend that it was entitled to the land under its grant from the government of a right of way over public land.

We therefore find that the demurrer was properly sustained by the Court of Common Pleas and that all questions as to ownership as between the parties were determined at the time that the jurisdictional questions were determined. It follows, therefore, that the judgment of the court below will be affirmed.

*Judgment affirmed.*

Montgomery, P. J., and Sherick, J., concur.