City of Norwood v. Sheen, Exr.

CUSHING, J. The disposal of sewage is a governmental function. City of Mansfield v Balliett, 65 Oh St, 451. There is no question but that the act of the City of Norwood in permitting the sewage to flow over and upon the plaintiff’s property constituted an appropriation of property to that extent. In the case of Schneider v Brown et Commissioners, etc, 33 Oh Ap, 269, it was held that the temporary use of property was an appropriation for that purpose. So in the case at bar, the using of the property for the disposal of sewage was an appropriation to that extent of the property. The City also claims that the verdict is excessive and against the weight of the evidence. The record discloses that the testimony of the plaintiff fixed the rental value of the property between twelve and sixteen hundred dollars per year, and it was used by the City of Norwood for about four years. The City did not offer any testimony. So that the verdict of the jury cannot be questioned, as it was based on the only testimony introduced in the case. This court cannot substitute its judgment for that of the jury, and while( the verdict seems excessive, the court is powerless to modify. The judgment of the Court of Common Pleas must, therefore, be affirmed. ROSS, PJ, and HAMILTON, J, concur.