McCone v. Wood County , 4 Ohio Law. Abs. 751 ( 1926 )

YOUNG, J.

Thos. McCone brought this injunction proceeding in the Court of Appeals against the Joint Board of County Commissioners to restrain the defendants from making proposed improvements of a ditch across his lands, known as an outlet, and also the middle branch of the Portage River, a natural watercourse.

The Commissioners had ordered the said improvements and a contract for same had been entered into.

' Plaintiff claims that the contract for the improvement was for deepening, widening and straightening of said watercourse; and that after a route was determined by the Commissioners, a change was made which consisted in cutting a new channel at certain points in the route. It is urged by McCone that the cutting of a new channel is a changing of the stream in its course.

Subsequently a claim for compensation and damages was presented to the Board of Commissioners, and later an appeal was taken from its action to the Wood Common Pleas Court, where it is now pending. The Court of Appeals in hearing this present action, held:

1. That part of the constitution of Ohio applicable here is section 19, of Article I which refers to the taking of private property and which provides “ - - - - and in all ohter cases, when private property shall be taken for public use, a compensation 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.”

2. As there is now pending in the Common Pleas Court an appeal from the decision of the County Commissioners awarding compensation, an injunction should be and is hereby granted enjoining the defendants from entering upon the land of plaintiff until compliance with said section 19, Article I of the Constitution by payment or deposit of money as provided therein; and until final determination of the action now pending in the Common Pleas court.

Attorneys — Earl D. Bloom for McCone; Ray D. Avery, Pros. Atty., & Edward Fries for Commissioners; all of Bowling Green.

Injunction granted accordingly.

(Richards & Williams, JJ., concur.)