Board of County Commissioners v. Gates

Citations

• 83 Ohio St. (N.S.) 19

Syllabus

<p>County commissioners sitting as a board — In hearing on application of land-owners — For establishment of ditch — Represent landowners and not the county, when — Section 4447, Revised Statutes — Board represents county and not exclusively petitioners, when — Question of damages by construction of ditch — Owner of lands not party when — Personal notice to owner of land, not indispensable, when — Legality of proceedings — Section 4451a, Revised Statutes — Waiver of right of application for damages.</p> <p>1. The county commissioners, sitting as a board, in hearing an application on the part of land-owners for the establishment of a ditch, as provided by section 4447, and following, of the Revised Statutes, represent the land-owners, petitioners, and not the county, where it is found that the improvement is of local interest only, and that the cost and expense should be assessed wholly against the lands benefited. Where the finding is that the improvement is of sufficient importance to the public to justify the payment of damages and compensation, in whole or in part, out of the county treasury, the board may so order, and in such condition the board represents the county, and not exclusively the petitioners.</p> <p>2. An owner of land not a party to the proceeding, whose land may have been damaged by the construction of such ditch, cannot recover of the county for such damage where the board fails to find that the ditch will be of sufficient importance to the public to warrant an order for payment of damages and compensation, in whole or in part, out of the county treasury. Hence, a petition which seeks recovery in such case against the county which fails to aver such finding and order of payment will be held bad on general demurrer.</p> <p>3. The application for a ditch under the section cited is in the nature of an action in rem. Hence personal notice of the proceeding to the owner of land which may be affected by the ditch is not indispensable to the legality of