Miami Conservancy District v. Bowers
| Decision Date | 08 July 1919 |
| Docket Number | 16337 |
| Citation | 125 N.E. 876,100 Ohio St. 317 |
| Parties | The Miami Conservancy District v. Bowers Et Al. |
| Court | Ohio Supreme Court |
Conservancy act - Condemnation proceedings - Verdict by three-fourths of jury - Jury fees taxed, how - Market value of land determined, how - Sections 6828-34, 11046, 11089 and 11091 General Code - Section 19, Article I, Constitution.
Mr O.B.Campbell and Mr. L.H. Shipmam,for plaintiff in error.
Messrs Broomhall & Broomhall and Mr. W. L. Martindale, for defendants in error.
Mr. R A. Kerr, prosecuting attorney, for county, as to taxation of costs.
BY THE COURT. This is a proceeding in appropriation under the conservancy act. Upon the trial of the case in the common pleas court it was held that (1) a verdict could be rendered upon a concurrence of three-fourths of the members of the jury; (2) jury fees may be taxed as part of the costs in the case; and (3) the market value of the land to be taken should be determined as of the time of trial and not as of the date of the confirmation of the appraisement by the conservancy court. The court of appeals affirmed the common pleas.
1. The verdict in this case was rendered upon the concurrence of all the jurors, hence there was no prejudice to the plaintiff in error by reason of the instruction with reference thereto. This ques- tion, however, has been decided by this court in the case of The Miami Conservancy District v. Mitman et al., ante, 315.
2. By the provisions of Section 6828-34, General Code, being a portion of the conservancy act, condemnation proceedings instituted as therein authorized, are required to conform to the provisions of the statute regulating appropriation by other than municipal corporations, and in such appropriation proceedings Section 11089, General Code, authorizes the taxing of costs, including jury fees, against the corporation. Detroit Southern Rd. Co. v. Commissioners, 71 Ohio St.454.
The general provisions of Section 11091, General Code, do not overcome or modify the specific terms of Section 6828-34 General Code. Therefore, in such case jury fees were properly taxable as costs against the plaintiff in error.
3. Section 19, Article I of the Ohio Constitution, provides that
Under such provision, before private property can be "taken," compensation must "first" be made or secured and such compensation shall be assessed by a jury. Any act of the legislature inconsistent with such...
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