ient for such offices and prison, which the defendant can procure at reasonable price either by purchase or judicial appropriation.

(9) The plaintiffs say that the said village is not, nor is its council, clothed with authority or power to condemn or appropriate said part of said lot; that said probate court had no authority or jurisdiction to entertain or hear said application, or to authorize proceedings under the same to condemn or appropriate any part of said lot for said purposes; that all its said proceedings are and will be null and void; but, if permitted, will be a cloud upon, and may ripen into an occupancy inconsistent with, plaintiff's rights and title, and work the entire forfeiture thereof. During all the months of July and August, 1881, the said corporation plaintiff had and maintained its general office and place of business in the city of Sandusky, in the state of Ohio, constantly in charge of its proper officers, agents, and clerks, and had and maintained its full organization and proper officers under the laws of and within said state, during all said time, and is not nor was a foreign corporation at any time.

"(10) The plaintiffs, and each of them, therefore pray that the said village, its agents and officers, may be restrained, and perpetually enjoined from asserting any estate, or exercising any right, under said order of appropriation, and from taking or maintaining possession of said part of lot No. 4; that the said order and judgment of appropriation be annulled; and that in the meantime a provisional injunction be allowed restraining them therefrom until the final hearing; and for other proper relief."

At the commencement of the action a temporary injunction was allowed as prayed for in the petition, and afterwards, on the 5th of October, 1881, the plaintiffs filed the following supplemental petition, and obtained thereon a further temporary injunction according to its prayer, viz.: "The plaintiffs say that on the 30th day of September, 1881, they obtained an injunction and filed their petition in the above entitled cause restraining the said village, its officers and agents, from erecting or maintaining any building or structure on the southeasterly part of lot No. 4, in said village, and from interfering with or molesting the structure now thereon standing. They now come and file this their supplemental petition against George Young, mayor of said village, Jefferson Wright, Lyman Dow, William Sicke, et al., members of the council of said village, and Thomas Nelson, Thomas Livingston, and M. A. Smith, Jr., and aver against them, all and singular, the matters and facts alleged and averred in their said original petition, as fully as if the same were herein set forth

at large. They further aver that the said Nelson, Livingston, and Smith, wrongfully claiming to act under some pretended authority or contract derived from or had with the mayor and council of said village, are contemptuously disregarding and violating the said order of injunction, and are now engaged in molesting and disturbing the said structure mentioned in the said original petition, and are digging and excavating the soil of part of said lot wrongfully, and are erecting thereon a structure as described and mentioned in their said original petition, in violation of the court's injunc tion, and without any legal authority or right, and in contemptuous disregard of the authority and order of the said judge, and the court allowing said injunction, which, if permitted to continue, will work an irreparable injury to these plaintiffs. They therefore pray that the said mayor of said village, and members of said village council, Thomas Nelson, Thomas Livingston, and M. A. Smith, be made defendants, and be enjoined and restrained from further proceeding in the said digging, excavation, erection, and molestation, on or about the part of said lot, until the final hearing of their said original petition, or until the further orders of the court; and from doing any of the acts which the said village is now restrained from doing by the said injunction."

The original defendant answered as follows: "Now comes said defendant, and for answer to the petition and supplemental petition of plaintiff denies each and every allegation therein contained, excepting the allegation that defendant is a municipal corporation organized under the laws of Ohio, and situate in said county of Logan, and excepting the allegation that said defendant on the 6th day of August, 1881, filed in the probate court of said county its application to appropriate a portion of the real estate described in plaintiff's petition. Defendant, for a further defense, says: (1) That the part of said lot No. 4, in said village, sought to be appropriated for the purpose in the petition mentioned, has never been and is not now used by said the Cincinnati, Sandusky & Cleveland Railroad Company, or any other railroad company, for depot purposes. That the depot building upon said lot is at the distance of 125 feet from the part of said lot sought to be appropriated as aforesaid. A plat of said lot and its surroundings is hereto attached, marked A,' and made part of this answer. That, on the intervening space of 125 feet between said depot buildings and the part of said lot sought to be appropriated, there has for several years been, and now is, a building occupied with business rooms, not in any way connected with the business of carrying on said railroad, and the part of said lot so sought to be appropriated

has never been used and will not be used by said railroad company in carrying on its business, and is not, and never will become, necessary for the purpose of the business of said railroad company. That there is a structure standing on the part of said lot No. 4 sought to be appropriated, but the same was erected since the plaintiffs had notice of the intention of said village to make its application for the appropriation of the same, and said structure was erected for the purpose and with the intent and design of preventing said defendant from making the said appropriation. That in said proceeding for appropriation the said structure was valued at one hundred dollars, and the owners thereof refused to remove the same, and said defendant was compelled to take the same, and pay said sum of $100 therefor, and proposes to permit to be used temporarily, merely for business, only so much of said structure as for the present is not necessary to be used for the purposes for which the same was appropriated. That, long before the beginning of this suit, defendant, after having paid into court the amount of compensation and damages assessed in said proceeding in the probate court of said county in pursuance of the order of said probate court, took possession of said structure, and the portion of said lot appropriated as aforesaid, and ever since has been, and now is in possession thereof. That, prior to the commencement of this action, the village council of said village appointed a building committee, with full power to contract for the erection of the structure mentioned, and that on the 29th day of September, 1881, and prior to the bringing of this suit, said committee made contracts for the erection and completion of said structure, all of which has been done, none of which contractors ever have been served with notice of any injunction having been allowed herein; and defendant says that, after said contracts were awarded, it had no power to prevent them from completing their contracts as aforesaid. Defendant further says that said the Cincinnati, Sandusky & Cleveland Railroad Company was properly and legally served with notice of the intended application of defendant to appropriate a part of said lot as aforesaid, as well as all other necessary parties thereto. That said the Cincinnati, Sandusky & Cleveland Railroad Company appeared in said probate court by its attorneys, and made and argued motions and examined witnesses during the trial of said proceeding. That the part of said lot No. 4 sought to be appropriated and which was therein appropriated consisted of a strip of ground 25 feet front by 50 feet, out of the south corner thereof. That, if any wrong has been committed against plaintiffs in said proceedings, plaintiffs have a complete and adequate remedy at law.

Defendant further says that said lot so appropriated as aforesaid is necessary for the construction of said village prison and offices. Wherefore defendant asks that said injunction may be dissolved, and said defendant restored to all things it has lost by reason thereof."

The plaintiffs did not reply. Upon the issues joined by these pleadings the case was tried in the court of common pleas, where the plaintiffs prevailed; and the defendant appealed. The circuit court heard the cause at its September term, 1887, and separately stated its conclusions of fact and law as follows: "(1) The court find that the allegations of the defendant's answer relative to the condemnation proceedings, therein mentioned, as having taken place in the probate court of said county, are true; that record of said proceedings was submitted to the court by the defendant; and the court declined and refused to hear any other evidence in the case, except as set forth in the record of said probate court in said condemnation proceedings. (2) Upon the said record the court refusing to hear any other evidence, they find that said condemnation proceedings were regular; and that said plaintiff the Cincinnati, Sandusky & Cleveland Railroad Company was a party thereto; and, upon the facts so found, the court finds the equity of the case to be with the defendants. It is therefore considered and adjudged by the court that the injunction heretofore allowed herein be, and the same is, dissolved, and that the defendant be restored to all things lost by reason thereof. It is therefore considered that the defendant, the village of Belle Centre, Logan county, Ohio, recover of the plaintiff the Cincinnati, Sandusky & Cleve land Railroad Company their costs expended, taxed at $."

A motion for a new trial was filed in due time, which was overruled by the court. Exceptions to the ruling were taken by the plaintiff the railroad company, and a bill of exceptions was allowed, from which it appears that "it was agreed by the parties that the several allegations of the plaintiffs' petition in regard to the Mad River & Lake Erie Railroad Company, and the conveyance to it of the said lot No. 4; the terms, conditions, and purpose of said conveyance; the building, operation, and maintenance of said line of road; and the Occupancy of said lot No. 4 for depot purposes,—were severally true. It was further agreed that in the year 1866, by judicial reorganization, and the sale and transfer of said line of railroad, and of said lot No. 4, the said the Cincinnati, Sandusky & Cleveland Railroad Company became the suc cessor to the said the Mad River & Lake Erie Railroad Company, and then became and has hence hitherto continued to be the owner of said line of railroad, with all the rights of

its said predecessor, including its rights to and ownership of said lot No. 4, with a depot building thereon standing, which it has continuously maintained and operated ever since. It was further agreed that since the commencement of this action the said temporary lease of the other plaintiffs in the petition mentioned has expired, and that the said the Cincinnati, Sandusky & Cleveland Railroad Company alone prosecutes this action. The plaintiff the said railroad company, to further maintain the issues on its part, offered as evidenee the deed to the said the Mad River & Lake Erie Railroad Company for the said lot No. 4, a copy of which is hereto attached, marked A,' and made part of this bill of exceptions; and also offered other competent evidence, oral and record, tending to prove the allegations of the petition on its part; but the court refused to hear or consider the same, or any evidence in support of the petition, other than the record of the condemnation proceeding before the probate court in the pleadings mentioned, and directed the defendant to first introduce the record of said condemnation proceeding; to all which ruling and refusal to admit evidence the said the Cincinnati, Sandusky & Cleveland Railroad Company by its counsel then excepted. The defendant then, to maintain the issue on the part of said village, offered and read in evidence the record of the said probate court and of the said condemnation proceeding had therein, a transcript and copy of which, marked B,' is hereto attached and made part of this bill of exceptions."

The deed from Hemphill and others to the Mad River & Lake Erie Railroad Company describes lot No. 4, referred to as "being 535 feet front on the railroad and 200 feet back." Such portions of the record of the probate court to which reference is made in the bill of exceptions and judgment of the court as may be deemed important in the decision of the case will be noticed in the opinion. The proceeding in error here is to reverse the judgment of the circuit court. W. A. West, for plaintiff in error.

McLaughlin & Dow, for defendant in error.

Jurisdiction

of probate

WILLIAMS, C. J.-The probate court is empowered by the constitution, in addition to its jurisdiction in probate and testamentary matters, and others expressly enumerated, to take such other jurisdiction as may be provided by law. It has been given general juris- court. diction to make inquests of the amount of compensation to be made to owners of real estate, when appropriated by any corporation legally authorized to make such appropriation. Rev. St. § 524. The purposes for which mu