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Sauer, Admr. v. Street Ry. Co.

CHANGE OF VENUE.

[Superior Court of Cincinnati, General Term, July 1897.]
Hunt, Smith and Jackson, JJ.

+SAUER, ADMR., v. CINCINNATI STREET RY. Co.

1. FILING Five AffidavITS MERELY ALLEGING THAT APPLICANT CANNOT HAVE AN IMPARTIAL TRIAL NOT SUFFICIENT UNDER SEC. 5033, REV. STAT.

Filing five affidavits, in addition to that of the party making application for a change of venue, under sec. 5033, Rev. Stat., (which provides for a change of venue, in actions where corporations having more than fifty stockholders are parties), which affidavits merely allege that "affiant believes that the plaintiff cannot have a fair and impartial trial in the above entitled action in said county," is not sufficient to entitle the applicant to a change of venue.

2. COURT HAS A RIGHT TO BE SATISFIED OF SUFFICIENCY OF AFFIDAVIT AND CREDIBILITY OF WITNESSES.

The correct construction of the act above referred is one which confers discretion upon the act and the venue need not be changed unless the court is catisfied as to the sufficiency of the affidavits and the credibility of the witnesses.

SMITH, J.

This case has been reserved for general term upon the motion of plaintiff for a change of venue, under sec. 5033, Rev. Stat., which reads. as follows:

"When a corporation having more than fifty stockholders, is a party in an action pending in a county in which the corporation keeps its principal officers, or transacts its principal business, if the opposite party make affidavit that he cannot, as he believes, have a fair and impartial trial in that county, and his application is sustained by the several affidavits of five credible persons residing in such county, the court shall change the venue to the adjoining county most convenient for both parties."

In support of the application, the plaintiff has filed his own affidavit in which he states:

"That the defendant in the above entitled action is a corporation, and has more than fifty (50) stockholders in said Hamilton county, Ohio, in which the said defendant keeps its principal office and in which county the said action is now pending, and that this affiant cannot, as he believes, have a fair and impartial trial in the said county."

In addition to his own affidavit, the plaintiff has filed the affidavits of five other persons, two of whom are his attorneys. The affidavits are in the same form as that of plaintiff, and after stating that the defendant is a corporation, such as is described in sec. 5033, conclude with the statement that: "the affiant believes that the plaintiff cannot have a fair and impartial trial in the above entitled action in the said county." The contention of the plaintiff is, that by the filing of these six affidavits, he has complied with the requirements of the statute and that the court must change the venue to an adjoining county.

The contention of the defendant is, that the affidavits are insufficient in failing to state any facts from which an inference can be drawn that the plaintiff cannot have a fair trial; that even if they were not insufficient for this reason, nevertheless the court must exercise a discretion in determining whether the affiants are credible; and furthermore that the law is unconstitutional in that it grants to one party in the case a † Dissenting opinion of Jackson, J., see 8 O. D. ·

Superior Court of Cincinnati.

right which it denies to the other, and thus does not afford to both the equal protection of the law.

It is undoubtedly true that the affidavit of the party himself need only state, "that he cannot, as he believes, have a fair and impartial trial." But the law requires that, "his application must be sustained" by the affidavits of "five credible persons.'

And the controversy turns upon the construction of the words "sustained" and "credible persons."

The plaintiff insists that the application is sustained if the five additional affidavits are each to the effect that the affiant believes the plaintiff cannot have a fair trial, and the affiants are credible persons; that all persons are presumed to be credible until the contrary appears; and that therefore the application in this case "is sustained by the several affidavits of five credible persons."

It is further insisted by the plaintiff that sec. 5032 provides for a change of venue in a hearing upon the question whether "a fair and impartial trial" can be had in the county where the suit is pending, and that sec. 5033 is intended to furnish a summary proceeding dispensing with the hearing of evidence upon both sides of this question except that the court may hear evidence of one kind bearing upon the credibility of the affiants, viz.: as to their reputation for truth and veracity.

That the general assembly by sec. 5033 intended to provide a more summary proceeding than is provided for in sec. 5032 must be conceded. But it does not necessarily follow from this concession that the court has no discretion in determining whether the affidavits filed "sustain" the "application," and whether they are by "credible persons."

The admission of plaintiff, that affidavits may be filed by the defendant attacking the credibility of the affiants by showing their general reputation for truth and veracity would seem to be inconsistent with his contention, that the statute is one which deprives the court of any discretion in determining whether the application is sustained by the affidavits of credible persons. Because, after the evidence as to general reputation has been submitted, the court must weigh it and determine its force. If, too, the question of credibility of the witnesses may be determined by evidence, dehors the affidavits, it would seem that there could be no satisfactory reason no satisfactory reason for limiting such evidence to the general reputation of the affiants for truth and veracity, but that any evidence bearing upon that question and showing malice, bias or prejudice should be admitted. And evidence showing a condition of affairs different from that detailed in the affidavits, should be heard. For what stronger evidence that the affiants were not credible could be submitted than facts showing that plaintiff could have a "fair and impartial trial." The result of this proceeding would be to open up an inquiry and a discussion not substantially different from that provided for in sec. 5032.

What is it necessary that the five sustaining affidavits shall contain in order to meet the requirements of the statute? It is insisted by plaintiff that the mere belief of such an affiant that the plaintiff cannot have a fair and impartial trial, is sufficient, without the statement by the affiant of any fact, or even reason for entertaining such belief. Such belief may be formed solely from the conversations with a party or with the counsel in the case and from an entirely incorrect or misleading statement of thei situation; yet the belief formed in this matter is to be accepted as of sufficient solemnity and force that the trial of the cause is to be removed to

VII.

SUPERIOR AND COMMON PLEAS COURTS.

McDonald v. Cincinnati.

21

another county. We cannot bring ourselves to believe that the general assembly intended to give such weight to mere belief without respect to the facts upon which it is founded or the source from which it arises.

Nor do we think that the court is so bound by the presumption that all persons are credible, that it must accept the statements of the affiants as true. If so, then a party with counsel and relatives, both men and women, many of whom may be entirely ignorant or misinformed in respect to the question whether the party can have a fair trial, by mere affidavits that they believe he cannot have such a trial, may transfer the case to an adjoining county..

In our opinion the correct construction of this statute is one which confers a discretion upon the court, and which does not make the court a ministerial officer, as is the clerk of the court, under sec. 550, when an affidavit is filed charging the judge with being disqualified. The same conclusion has been reached by the court of common pleas and also the circuit court of this county. State v. Wilson (7 Ohio Circ. Dec., 17.) In the exercise of this discretion, a majority of the court are of the opinion that the application in the case should be denied, and it will therefore be so ordered.

The determination of this application upon the ground indicated makes it unnecessary for us to consider the question as to the constitutionality of the statute.

The same order will be made in the case of Wright v. Railway Co.
HUNT, J., concurs. JACKSON, J., dissents.

Thos. L. Michie, John W. Wolfe, for plaintiff.

J. W. Warrington, E. W. Kittredge, John B. Boutet, for defendant.

SEWERS-APPROPRIATION.

[Superior Court of Cincinnati, General Term 1, June, 1897.]
Hunt, Smith and Jackson, JJ.

ALEXANDER MCDONALD V. CITY OF CINCINNATI.

1. Owner of PRIVATE SEWERS ENTITLED TO COMPENSATION IF TAKEN FOR PUBLIC PURPOSES.

Where a city appropriates a private sewer to an extent which deprives the owner of all dominion over it, and limits him to only such rights as may be vested in the owner of abutting property, under permits to use the same, such owner is entitled to compensation for such appropriation, as of the right of way for the sewer.

2. Not so where Taken for Special PuRPOSE AND CITY ACQUIRES ONLY AN EASEMENT.

But if the city has taken the sewer for a special purpose, and has not deprived the owner of his rights further than that he shall not use the sewer for purposes inconsistent with the special purpose for which the city has taken it, then the city has only taken an easement and the owner is not entitled to such compensation.

3. SUCH QUESTIONS ARE OF FACT AND ARE FOR THE JURY.

M. owned property in which a sewer had been constructed; subsequently the city, having constructed a connecting sewer, made it and the sewer owned by M., a part of its entire system of drainage, for sewerage and surface water, for a certain district, held, that the question as to whether the action of city was, under rules above stated, an appropriation 'or not is a question of fact for the jury and that it was error in the trial court to direct a verdict for the city. Held, also, that if there was an appropriation by the city, that the character and value of the property so taken should be determined by the jury.

Superior Court of Cincinnati.

HUNT, J.

This case comes before the court in error to the special term.

In July, 1891, the plaintiff, Alexander McDonald, purchased three lots, described as lots numbered 22, 25 and 27, in the zoological and syndicate subdivision. These lots had a frontage of fifty feet each on Erkenbrecher avenue, and extended back the same width to their depth, being about 150 feet. At the time the lots were purchased by the plaintiff, there was a stone sewer constructed on them. It was a large culvert, six feet in diameter, with what is known as an eighteen inch rim and crossed the lots at right angles, at a distance of about ninety-five feet from Erkenbrecher avenue, and about fifty feet west of a ravine on said lots (5 and 6). In midway of the lots, there was a man-hole of sufficient dimensions to admit a man into the sewer. The sewer in question had been built a number of years prior to the time that either the zoological and syndicate, or the plaintiff had purchased the ground, and had been constructed in connection with what is known as the French sewer which lay immediately south and connected with the sewer, and was used for surface water only.

The city of Cincinnati, prior to the year 1893, adopted sewer district No. 17, which comprises about three hundred acres. It constructed a number of lateral sewers, and then constructed a large sewer which it brought down and connected with the French sewer on the south end.

The city subsequently, but before the filing of the petition in this case, constructed a sewer about four thousand feet in length and made a connection on the north end of the sewer of the plaintiff, and since 1892, the city, in its published reports that of 1895 being attached and made part of the record has made the sewer in question, a part of its entire system of sewerage for district No. 17; and all the sewerage of the same, including the surface water, passes through it. The city has constructed a lateral sewer, seven feet south of the property of the plaintiff, on Dexter avenue, and turned it into this stone sewer, and has also constructed a lateral sewer in front of the property on Erkenbrecher avenue, and turned it into this stone sewer.

The plaintiff, before bringing this action, tendered to the defendant by quitclaim deed, the sewer, together with an easement to the ground when the same was constructed for the use and maintenance of the same. The petition alleges the appropriation of the sewer by the city, in connecting its sewers at each end of the sewer in question, and thus causing an additional amount of surface water, and all the sewers of the district to pass through the sewer. It further alleges the necessity of the sewer to the city, the willingness of the plaintiff to satisfy the wrongful act of the city in appropriating the sewer, and offers to convey the sewer and easement by proper conveyance upon payment of the sum of $2,067.50, which it claims is a just compensation for the same.

The city files a general denial.

At the conclusion of all the testimony below, both for plaintiff and defendant, the court, on motion of the defendant, instructed the jury to return a verdict for the defendant, to which the plaintiff excepted, and filed a motion for a new trial which was overruled, and error is now prosecuted to reverse the judgment on the court in special term.

It is provided by the constitution of the state of Ohio, that private property shall ever be held inviolate, but subservient to the public welfare. When private property shall be taken for public use, a compensation

McDonald v. Cincinnati.

therefor shall first be made in money, or first secured by a deposit of money, and such compensation shall be assessed by a jury without deduction for benefits to any property of the owner. The power to appropriate property for the public use is the exercise of the power of eminent domain. This power may be exercised through the general assembly, or as authorized or directed by the general assembly under constitutional limitation.

Under paragraph 21, sec. 1692, Rev. Stat., cities and villages are granted the power to open, construct and keep in repair, sewers, drains and ditches. Under paragraph 19. sec. 2232, cities are granted the power to appropriate. enter upon and hold real estate within their corporate limits, * * * for sewers, drains and ditches; and for this purpose the corporation shall have power to appropriate, enter upon and take private property lying outside of the corpoate limits.

The statute provides that when it is deemed necessary by a municipal corporation to appropriate private property, the council shall, by resolution, declare such intent, defining therein the purpose of the appropriation and setting forth a pertinent description of the property designed to be appropriated; that the application shall be made to the court that notice shall be given, and that assessment of compensation to the owner shall be made by a jury of twelve men duly sworn to discharge that duty, and that the court may direct the time and manner in which possession of the property condemned shall be taken and delivered.

While such proceedings are provided for by statute, yet the approation of private property may be made by a municipal corporation for sewers under its power of eminent domain. In the event that a municipal corporation enters upon private property for the purposes of a sewer without complying with the provisions of the statute, and the owner on discovering that the land has been so taken ratifies the act, then the appropriation is in fact made, and the owner is entitled to such compensation, to be assessed by a jury, as he would have been entitled to had there been a compliance with the provisions of the statute.

This principle is recognized in Longworth v. Cincinnati, 48 O. S., 637, where the court says that:

"Where in an action for compensation for land unlawfully taken by a municipal corporation * * * and devoted to public uses * * * it appears that the owner upon learning that the lands had been so taken, acquie ced in the appropriation as an accomplished fact and ratified it by tendering a sufficient deed of the premises conveying title to the corporation and by offering to allow judgment, that upon the value of the premises being fixed, and payment of the same, plaintiff should be ordered to convey to the corporation, a case is made entitling plaintiff to recover the value of the land." The court, continuing on page 640, in speaking of the position of the city, says:

"It could have acquired a right in the land by appropriation, paying its value. This it chose not to do, but rather to incur the risks attending a wrongful seizure; yet while the act was wholly indefensible, the parties to it obtained a valuable privilege in the use of the street; but the owners' rights were not extinguished. They were entitled, unless preyented by their own acts or omissions, to recover the land itself or to demand a compensation for its value. If compensation would make them whole, and they were content to accept that in full satisfaction, and as an extinguishment of all right in and title to the land thus wrongfully

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