Opinion, per WANAMAKER, J.

Both parties to this cause have urged upon the court the careful consideration of Neff v. City of Cincinnati, 32 Ohio St., 215, decided by the supreme court of Ohio in 1877. The first proposition of the syllabus in that case reads:

"Under the provisions of the statute authorizing a municipal corporation to appropriate land to a public use, such corporation must secure an 'inquiry into and assessment of compensation' by a jury to the owner of the property sought to be appropriated, which inquiry and assessment must be, not merely nominal, but actual, and made upon proof of the value of the property, or the corporation may be defeated in the appropriation; it is therefore not such error as will warrant the reversal of a judgment for the court before which the inquiry is held to permit such corporation to open and close the evidence and argument to the jury."

In the course of the opinion, Judge Day, speaking for the court, says at page 218:

"The proceeding was under the provisions of the municipal code, to appropriate land for public use. Under the constitution of the state, the owners of land so appropriated are entitled to compensation in money. To obtain the land the law requires an assessment of such compensation to be made by a jury. For this purpose the municipal corporation is required to notify the land-owners of its application; and, upon proof of such notice, as required by law, the court must set a time 'for the inquiry into and assessment of compensation,' by a jury to be impaneled for that purpose. No pleadings are filed by the parties, nor is an issue of fact in any

Opinion, per WANAMAKER, J.

form submitted to the jury. 'The inquiry into and assessment of compensation' comprise all the duties of the jury. This was the character of the trial in which the question is made as to which party is entitled to begin.

"The statute providing for the appropriation of land for the 'public works' of the state, and for the assessment by a jury of the amount to be paid to the owners, declares that 'the state shall be entitled to open and close, in giving testimony, and in the argument.' * * * On the other hand, the statute in regard to appropriations by general corporations secures to the land-owner the rights, in argument to the jury, of a party holding the affirmative. * * * But, in regard to appropriations under the municipal code, no provision is made on this subject. Such cases, then, not being controlled by any statutory provision, as to which of the parties must begin before the jury, must necessarily be governed by the rules of the common law, or in analogy to the corresponding provisions of the code of civil procedure."

Judge Day continues:

"The code provides that the party, who would be defeated, if no evidence were to be given on either side, must first produce his evidence; and that the party required first to produce his evidence, shall have the opening and closing argument."

By this test of the Code as applied in the Neff case, it is quite clear that the municipality "would be defeated" if no evidence were given on either side, and hence would, under the Code, in the ab

Opinion, per WANAMAKER, J.

sence of any special provision to the contrary, be "required" first to produce its evidence, and "have the opening and closing argument." In ordinary civil actions the general rule would undoubtedly be that such right and requirement would carry with it the so-called burden of proof.

But another test is equally significant. A party plaintiff is the one that initiates the action or proceeding by making its application or filing its petition in a court of competent jurisdiction, to protect some right or secure some remedy against the defendants.

At the instance of the petitioner service is made, or notice given to the defendants, and they are brought into court, usually against their will. Manifestly the duty rests upon the plaintiff either to show that his rights have been violated, or that the remedy he seeks is under the facts and circumstances of the case authorized and justified by the law, and that therefore he asks for a writ, order, or judgment of the court against the defendants.

Under the general rule, then, in civil actions, the obligation of making out a case for relief or remedy by process of court is upon the plaintiff, the mover, the initiator of the action or proceeding. And, speaking generally, the burden of making the necessary proof to warrant the order, finding, or judgment of the court, is upon the party praying for the relief or the remedy.

But, again, the Constitution of Ohio, by the Bill of Rights, Section 19, is most careful to safeguard the right of private property. This section reads:

Opinion, per WANAMAKER, J.

"Private property shall ever be held inviolate, but subservient to the public welfare. When taken in time of war or other public exigency, imperatively requiring its immediate seizure or for the purpose of making or repairing roads, which shall be open to the public, without charge, a compensation shall be made to the owner, in money, and in all other cases, where 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."

Now the burden of showing that the owner should be divested of his right, title and interest in the property, and should surrender the same to the plaintiff, is not upon the owner, but upon the person who seeks to dispossess the owner and take his property for a public use. The constitution makes such safeguard by expressly providing that such property shall not be taken for public use until 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."

The plaintiff, relying upon the right of eminent domain, is obliged to set the machinery of the law in operation in conformity to the constitutional requirement and the statutes pursuant thereto, in order to secure the title and possession of the property. The property owner need not even appear. The constitution and the laws protect him as to

Opinion, per Wanamaker, J.

"full compensation or just compensation for the value of the property taken."

This provision of the constitution was under consideration by the supreme court in an early case, The Cleveland & Pittsburg Rd. Co. v. Ball, 5 Ohio St., 568, when Judge Bartley, speaking for the court, said at page 575:

"The provisions of the constitution of this state on this subject, are somewhat different from the provisions in the constitutions of some of the other states. Full compensation' is required to be made to the owner in money for the appropriation of his property, as a condition precedent. To be a full compensation it must be a remuneration or recompense for that detriment or loss to the owner in the value of his property arising from the taking of his property in connection with the use for which it is taken."

Those who seek to dispossess others of their constitutional right of private property, under the provisions of the extraordinary power of eminent domain, should have cast upon them the burden of proving to the satisfaction of the court and jury that they have performed, or are willing to perform, their full constitutional and statutory duty in the premises touching such full or just compensation. Such provision is special and in derogation not only of the common law but also of the general provision of the constitution, and therefore should be strictly construed.

Since the decision in the Neff case, which allowed the city the right to open and close, the legislature of Ohio has passed a statute giving the right to