1909.] State, ex rel, v. Workman et al. We think the case of State, ex rel Hunt, v. Fronizer, 77 O. S., 451, is decisive of the questions in the case at bar. The syllabus of that case is: "Section 1277, Revised Statutes, which authorizes the prosecuting attorney to bring an action to recover back money of the county which has been misapplied or illegally drawn from the county treasury, does not authorize the recovery back of money paid on a county commissioners' bridge contract fully executed, but rendered void by force of Section 2834b, because of the lack through inadvertence of a certificate by the county auditor that the money is in the treasury to the credit of the fund, or has been levied and is in process of collection, there being no claim of unfairness or fraud in the making, or fraud or extortion in the execution of such contract for such work, nor any claim of effort to put the contractor in statu quo by return of the bridge, or otherwise, the same having been accepted by the board of commissioners, and incorporated as part of the public highway." The principle of the case, the syllabus of which we have just read, applies to the case before us. There is no allegation in the petition that Richland county has put or offered to put the defendants in statu quo; indeed, it would be impossible to accomplish that result. The answers allege the facts, and for the purposes of the demurrer are admitted to be true, that the defendants under a contract with the county commissioners performed all legal services necessary to bring about a compromise with the executors of the estate of John Sherman, deceased, and through their efforts secured the sum of $62,500, out of which was paid the compensation agreed upon between the commissioners and the defendants, the sum of $18,500. The county commissioners could not return to the defendants the time spent by them in the prosecution of that suit, and in its preparation for trial, nor could they return any of the services rendered by the defendants. The only thing possible to be done would be to reimburse the defendants for the expense incurred by them, and there was no offer to do that. In the case of Hunt v. Fronizer, supra, the action was brought by the prosecuting attorney of Sandusky county, under Section 1277, Revised Statutes, to recover an amount of money paid by the county commissioners for certain bridges and repairs, with State, ex rel, v. Workman et al. [Vol. IX, N. S. The out placing Fronizer, the contracting party, in statu quo. Supreme Court held that no recovery could be had; that the law would leave the parties where they had placed themselves. We can see no difference in principle between the furnishing of material for the construction of bridges and labor in their construction, and services rendered by an attorney in the prosecution of an action at law, which results in a benefit of the county. To quote the language of the Supreme Court in that case: "Such a recovery is not authorized. The principle applicable to the situation is the equitable one that where one has acquired possession of the property of another, through an unauthorized and void contract, and has paid for the same, there can be no recovery back of the money paid without putting, or showing readiness to put the other party in statu quo, and that rule controls this case, unless such recovery is plainly authorized by the statute. The rule rests upon that principle of common honesty, that imposes an obligation to do justice upon any persons, natural as well as artificial, and is recognized in many cases. The authorities cited by counsel are beside the question presented on this demurrer, and I need only to refer counsel to the opinion in the case of Hunt v. Fronizer, supra, for an illustration of those authorities and the reasons why they are inapplicable. Our opinion being that the petition in this case states no cause of action against the defendants, it results that the petition should be dismissed at the costs of the relator, unless it is desired to amend, in which event leave will be granted to the relator to file an amended petition. Headington v. Neff, 7 Ohio, pt. 1, 229; Railroad Co. v. Mowatt, 35 0. S., 284. 1909.] Traction Company v. Dempsey. FIXING VALUES OF A RIGHT-OF-WAY THROUGH A FARM. Common Pleas Court of Richland County. THE PLYMOUTH & SHELBY TRACTION COMPANY V. JAMES H. DEMPSEY ET AL. Decided, April Term, 1909. Eminent Domain—Interference with Farm Drainage by Building of Railway-Rule for Estimating Damages to Residue-General and Incidental Benefits-Competency of Testimony-Impressions of Jury on View of Premises not Evidence-Charge of Court. 1. In condemnation proceedings brought by a traction company seeking to appropriate a right-of-way through a farm, the owner must be paid for the land taken its fair market value at the time it is taken, and testimony tending to introduce the element of probable benefit to the farm from the building of the road, or as to the price at which the farm may have been offered for sale is incompetent. 2. Testimony as to interference with drainage pipes and destruction of a part of the underground drainage system of the farm is compe tent. 3. It is not error to refuse to give a special charge, which in effect tells the jury that the impressions from viewing the premises was evidence and better evidence than the testimony of witnesses whose testimony may be in conflict therewith as to physical features and general facts relating to the land. WICKHAM, J. This action was brought by the plaintiff in the Probate Court of Richland County, to appropriate a right-of-way across the lands of the defendants for an electrice railroad. The road was constructed and in operation when the petition was filed. The cause was tried in the probate court, a verdict was rendered for the defendants finding the value of the lands taken, and the damages to the residue. A judgment was rendered on the verduct, a motion for a new trial was filed and overruled, and a petition in error filed in this court to reverse that judgment. The plaintiff in error claims there was error prejudicial to it in the trial in the court below in: 1. The exclusion of evidence offered by the plaintiff in error. 2. The admission of evidence offered by the defendants in error. Traction Company v. Dempsey. [Vol. IX, N. S. 3. The court's charge to the jury, and 4. The refusal to charge as requested by the plaintiff in error. We will consider these assignments of error in their order. 1. Was there error in the exclusion of evidence offered by the plaintiff in error? It was the opinion of counsel for plaintiff in error at the time of the trial below, and is argued by them here, that the rule of damages to the residue of the land after deducting the amount actually appropriated, would be the difference in value of that residue before the road was built and its value after, taking into account the general benefits to the farm, or the amount it would be enhanced in value by reason of the conveniences afforded by the road. Entertaining this view, counsel asked James Dempsey, a witness for the defendants, on cross-examination (Rec., p. 75): "Q. Don't you think, Mr. Dempsey, if that farm was put on the market it would sell better with the electric line through there than it would without?" Again, on the same page: "Q. Considering what accommodations and conveniences come to that farm by reason of the electric line, don't you believe it would bring on the market today more than it would if the line was not there?" Isaac Stein was called as a witness for the defendants, and testified to the value of the residue before and after the road was built, and on cross-examination by plaintiff in error he was asked (Rec., p. 8): "Q. You would not consider it (the railroad) any convenience, would you? "Q. Do you consider that the electric line would not add anything to the value of the farm? Q. In fixing the value of the farm before and after the construction of the line, you don't take into consideration the convenience that the road is to the farm?'' On page 10: "Q. Do you think that the farm would not bring more today than it would before the road was constructed? 1909.] Traction Company v. Dempsey. "Q. Do you think that the farm in the same market would not bring more after the road was constructed than it would without it? "Q. Isn't it a fact, Mr. Stein, that when these farms throughout the country are put on the market, one of the elements argued in favor of them is that they have an electric railroad in front of them?" Defendants' witness, Gautschall, who testified in chief that the land was worth $100 an acre before the road was constructed, was asked on cross-examination (Rec., p. 54): "Q. Now, considering all the conveniences the farm gets from the railroad, and the depreciation that is caused by the railroad passing along it-considering everything that would go to enhance the farm because of the construction of the railroad and the running of cars there-do you say that farm is not worth $100 an acre?" Objections by the defendants were sustained to all these questions by the trial court. There were other questions asked these and other witnesses called by the defendants, to which exceptions were sustained, but they were of the same character as questions cited, and it would serve no useful purpose to refer to them. In addition to the evidence excluded on cross-examination, plaintiff in error called witnesses who testified in chief that the farm was worth as much or more after the construction of the road than before. And when it was made to appear by crossexamination that these witnesses, in fixing the value of the farm after the road was built, took into account the enhancement of the value by reason of the conveniences offered by the road, the court sustained motions to exclude that part of the answers fixing the value after the construction of the road. And these are assignments of error on the ground of exclusion of evidence. In our opinion this evidence offered by the plaintiff in error was incompetent, and was rightly excluded by the trial court. The rule of damages in such cases was established by our Supreme Court in an early case, and, we believe, has never been deviated from, except in rare cases and under peculiar facts, as where local incidental benefits accrue to the land by reason of the improvement, which is not true in the case at bar. And when such facts exist the case is regarded as an exception to the |