Bеlator contends (1) that, by temporary interference with relator’s easement of access, the highway director has taken relator’s property, and (2) that Section 5519.01, Rеvised Code, imposes upon the director a duty to fix what the director deems to be the value of that easemеnt and damages to the remainder of relator’s property and to deposit the amount thereof in court for rеlator.
If relator’s contentions are correct, it is apparent that an action for an injunction would provide relator with “a plain and adequate remedy in the ordinary course of the law.”
So far as pertinent, Sectiоn 2727.01, Revised Code, provides:
“An injunction is a command to do or refrain from doing a partiсular act. It may be the final judgment in an action * * (Emphasis added.)
Thus, if a statute imposes on the highway director the duty to fix what thе director deems to be the value of property taken and damages to the remainder of property not taken, and to
In State, ex rel. Libbey-Owens-Ford Glass Co., v. Industrial Commission (1954),
“A writ of mandamus will ordinarily be refusеd by the Supreme Court under its constitutional powers unless the relator shows affirmatively that there is no plain and adequate remedy in the ordinary course of the law, including equitable remedies * * *.”
In the opinion by Lamneck, J., it is said :
“2. Before the writ may issue, it must appear affirmаtively that there is no plain and adequate remedy in the оrdinary course of the law, including equitable remedies.
“3. The еxtraordinary writ of mandamus may not be used as a substitute for a mаndatory injunction.”
If this action had been instituted as an actiоn in mandamus in the Common Pleas Court, that court could have givеn injunctive relief therein without exceeding its jurisdiction, since the Common Pleas Court has original jurisdiction in injunction. However, in State, ex rel. Stine, v. McCaw (1939),
“Since the Supreme Court does not have original jurisdiction in injunction, mandatory injunctive relief will nоt be granted by that court through an action in mandamus.”
In State, ex rel., v. Hahn (1893),
“This court * # # has no original jurisdiction in matters оf injunction, and none can be conferred by the Legislature. To assume it, in any case, is simply judicial usurpation. This is a suit for an injunction in the form of a proceeding in mandamus. The form, howevеr, is nothing; it is the substance that gives real character to the proceeding. Hence, this court has no jurisdiction of the subject matter of the suit, and it should be dismissed for want of jurisdiction.”
Writ denied.