(146 N.E.) reported in 34 L. R. A. 321, and an elaborate editorial note follows, and more than a hundred cases decided by more than a score of states are cited in support of the rule that the decision upon a former appeal is binding even though erroneous. The state of Illinois is included among those courts which have in some measure clouded the doctrine. That court is also in a peculiar situation. In the case of Freet v. American Elect. Sup. Co., 257 III. 248, 100 N. E. 933, that court declared that the rule laid down in a former review is not binding upon the court on a second review. The court did not in that case overrule, criticize, or attempt to distinguish the numerous cases which had theretofore been decided by it, in which the rule had been unequivocally declared, and, what is stranger still, in the case of Thomasson v. City of Chicago, 261 Ill. 131, 103 N. E. 552, the rule was again applied in a case which had been consolidated with two other cases, only one of which had had a former review, and it was held that the rule in the former review in one case became the law of the case in all three cases thus consolidated. The state of New York is included by certain text-writers among those that have beclouded the doctrine, but we are unable to find any justification for this view, because it is stated in the Matter of Laudy, 161 N. Y. 429, 55 N. E. 914, that a decision in a former appeal is conclusive upon the court in a subsequent review. The state of Missouri is another state which has vacillated in the discussion of this doctrine. Many cases decided by that court can be found which uphold the doctrine, and other cases state that the rule is not a binding rule. The leading case of departure is perhaps that of Keele v. Atchison, Topeka & Santa Fé Ry. Co., 258 Mo. 62, 167 S. W. 433. That case being the last expression of the Missouri courts probably removes that state from the list of those which adhere to the doctrine. The earliest federal case is Himely v. Rose, 9 U. S. (5 Cranch) 313, 3 L. Ed. 111, decided in 1809, the opinion having been delivered by Chief Justice Marshall. The report is very brief, but it does appear that there was a former review and reversal and an express mandate to the lower court. In the colloquy between court and counsel the Chief Justice said on page 314: "Nothing is before this court but what is subsequent to the mandate." The opening sentence of the opinion, on page 316, states: definite rule of law was declared, but a reading of the case discloses that there was a first and second appeal and that the Supreme Court only considered those matters which were not settled by the first appeal The doctrine has been followed by the Circuit Courts of Appeals in a large number of cases which we will not take the trouble to discuss. It is said, however, that the case of Southern Ry. Co. v. Clift, 260 U. S. 316, 43 S. Ct. 126, 67 L. Ed. 283, is opposed to the doctrine. That case merely decided that "A decision of a state court disposing of a federal question by following its decision on a former appeal as the law of the case, cannot be regarded as resting on the independent, nonfederal ground of res adjudicata." Mr. We have no quarrel with that case, because it is well settled that the Supreme Court of the United States is not in any way bound by a decision of a state court where federal questions are involved. Justice McKenna delivered the opinion of the court and proceeded to declare the true distinction between res adjudicata and "the law of the case," and made the very pertinent, cogent statement that the law of the case directs discretion and that res adjudicata supersedes it and compels judgment; in other words, in one it is a question of power, in the other submission. It was but natural that the United States Supreme Court should refuse to submit to the judgment of a state court as a finality, in a case where a federal question was involved. In Messenger v. Anderson, 225 U. S. 436, 32 S. Ct. 739, 56 L. Ed. 1152, the doctrine of the law of the case was clearly recognized, but limited to a question of practice and not as a restraint upon power. This again was a case where the Supreme Court of the United States was reviewing a decision of a state court where a federal question was involved, and in the syllabus of the case the following is declared: "In a conflict between decisions of the state and federal courts, this court is free when the case comes here." In the case of Zeckendorf v. Steinfeld, 225 U. S. 445, 32 S. Ct. 728, 56 L. Ed. 1156, the Supreme Court of the United States for the third time refused to apply the doctrine of the law of the case when it had on review a case which had been twice heard in the court of last resort of the territory of Arizona and then prosecuted to the Supreme Court of the United States upon a federal question. We "A decree having been formerly rendered in have searched the opinions in all these cases this cause, the court is now to determine in vain to find anything contrary to the genwhether that decree has been executed accord-eral doctrine of the law of the case, and it is ing to its true intent and meaning." The entire opinion covering only two pages shows that that was the only question which the court considered. In Stone v. Southern Ill. & Mo. Bridge Co., 206 U. S. 267, 27 S. Ct. 615, 51 L. Ed. 1057, no quite clear that those decisions only constitute one of the well-defined exceptions thereto. Having carefully examined all the federal cases decided by the Supreme Court of the United States and the many decisions of the Circuit Courts of Appeals, it is believed that the foregoing are all of the cases which have declared any exception to the general rule that a declaration in. a former appeal has binding force. The Supreme Court of the United States, beginning with the early case of Himely v. Rose, supra, has never departed from the general features of the rule farther than indicated by the few cases already discussed. In the case of Roberts v. Cooper, 20 How. 467, at page 481 (15 L. Ed. 969), the Supreme Court of the United States made the following ringing pronouncement: One of the earliest of the Ohio decisions. cases in which this rule might have been applied is Aubrey v. Almy, 4 Ohio St. 524. The failure of this court to apply the rule in that case does not detract in the least from the rule itself. The case originated as a forcible detainer suit before a justice of the peace. Judgment was there rendered for the plaintiff. The judgment was reversed in the court of common pleas and the cause retained for trial. Judgment was again rendered for the plaintiff for costs and restitution. Thereupon in the same case "It has been settled by the decisions of this the plaintiff moved the court to impanel a court, that after a case has been brought here jury to assess the value of rents and damand decided, and a mandate issued to the courtages accruing to plaintiff after the notice to below, if a second writ of error is sued out, it quit. The motion was overruled and error brings up for revision nothing but the proceedings subsequent to the mandate. None of the prosecuted to the Supreme Court, which questions which were before the court on the reversed and awarded a writ of procedendo first writ of error can be reheard or examined to proceed with the inquiry. A jury was acupon the second. To allow a second writ of cordingly impaneled and a verdict rendered error or appeal to a court of last resort on the for plaintiff, and error was again prosecuted same questions which were open to dispute on from that judgment to the Supreme Court, and the first, would lead to endless litigation. In the Supreme Court held on the second review chancery, a bill of review is sometimes allowed that by virtue of sections 13 and 14 of the Act on petition to the court; but there would be no of 1831 (Swan's Statutes, old Ed. 419), reguend to a suit if every obstinate litigant could, by repeated appeals, compel a court to listen to lating proceedings in forcible detainer, no criticisms on their opinions, or speculate of jurisdiction was conferred upon the court of See common pleas to assess damages in any case chances from changes in its members. Sizer v. Many, 16 How. 173; Corning v. Troy except where the judgment of the justice of Iron Company, 15 How. 466; Himely v. Rose, the peace is affirmed. On page 529 of the 5 Cranch, 515; Canter v. The Ocean Insurance opinion, Thurman, C. J., makes it clear that Company, 1 Pet. 511; The Santa Maria, 10 the court could not in its former review Wheaton, 431; Martin v. Hunter, 1 Wheat. 304; confer jurisdiction upon the court of comand Sibbald et al. v. United States, 12 Pet. 488. mon pleas which was not conferred upon "We can now notice, therefore, only such errors as are alleged to have occurred in the de- that court by the statute relating thereto. cisions of questions which were peculiar to the It is universally agreed that if a court does second trial." not have jurisdiction of the subject-matter of an action, any judgment becomes a mere nullity. There is nothing in the case of Aubrey v. Almy, 4 Ohio St. 524, which goes farther than to merely recognize that wellknown principle. That case and its citations were followed in Supervisors v. Kennicott, 94 U. S. 498, 24 L. Ed. 260, and the general doctrine has been affirmed and approved in the following cases: Thompson v. Maxwell Land Grant & Ry. Co., 168 U. S. 451, 18 S. Ct. 121, 42 L. Ed. 539; Clark v. Keith, 106 U. S. 464, 1 S. Ct. 568, 27 L. Ed. 302; Chaffin v. Taylor, 116 U. S. 567, 6 S. Ct. 518, 29 L. Ed. 727. And in at least two cases in which no federal principle was violated the Supreme Court applied the rule that where there has been a second appeal in the state courts the United States Supreme Court would refuse to review the law declared in the first appeal: Northern Pac. Rd. Co. v. Ellis, 144 U. S. 458, 12 S. Ct. 724, 36 L. Ed. 504; Great Western Tel. Co. v. Burnham, 162 U. S. 339, 343, 16 S. Ct. 850, 40 L. Ed. 991. In obedience to the uniform and consistent decisions of the Supreme Court of the United States, the federal District Courts and Circuit Courts of Appeals have followed and applied the rule in a large number of reported cases. It is even said that the Supreme Court of Ohio has not supported this doctrine in the In the case of Pollock v. Cohen, 32 Ohio St. 514, this court has clearly and unequiv. ocally recognized and applied this doctrine, and has extended it not only to questions actually presented but to all questions existing on the record that might have been presented for adjudication on the first petition in error. The fourth syllabus reads as follows: "Where a case is brought a second time, on the same record, by petition in error, all ques tions on such record will be deemed settled by The steps which had been taken in that case as a basis for the foregoing pronouncement were not by any means parallel to the steps in the case at bar as heretofore outlined, but the principles which are decisive bar. (146 N.E.) Whatever facts may have been the basis of that syllabus, the opinion of the court, which may properly be referred to in construing the syllabus, has left no doubt of its application to the instant case. On page 519 of the opinion we find: "It is well settled by authority, and is a doctrine sound in principle, that all questions which existed on the record, and could have been considered on the first petition in error, must ever afterward be treated as settled by the first adjudication of the reviewing court. "The time should come, in the history of a cause, when litigation must end. If the failing party was allowed to prosecute a new petition in error, on the same record, whenever he imagined he had discovered a new ground of error not previously assigned, litigation would be interminable. Such a practice would violate well-settled principles of law and be against public policy." It is said, however, that the cases of Bane v. Vick, 6 Ohio St. 13, and Pennsylvania Co. v. Platt, 47 Ohio St. 366, 25 N. E. 1028, are contrary to Pollock v. Cohen. In those cases it is declared in the syllabus that the law declared in a former review will be followed in a subsequent review "unless very clearly satisfied that it is erroneous." careful reading of the opinion shows that "In the case we have here it must be remembered that there is a vital difference between the former and the last proceeding in the Court of Appeals." It is further contended that the case of Columbus Packing Co. v. State, ex rel. Schlesinger, Pros. Atty., is in point, and that it disapproves the doctrine. That case is reported in 100 Ohio St. 285, 126 N. E. 291, 29 A. L. R. 1429, and again in 106 Ohio St. 469, 140 N. E. 376. It is true that in that case this court in its later judgment directly overruled some of the declarations of its former judgment, but it is also true. as shown by the opinion in the latter judgment, that after the cause was first heard by this court and remanded for further proceedings one of the defendants, "the creamery company, filed its amended answer, containing a new and distinct defense, which the trial court did not have before it for consideration, and the validity of which was not determined by it." The above-quoted matter appears in the opinion of Jones, J., at page 477 (140 N. E. 379). the first review was upon materially different issues. It was further stated in the opinion of Jones, J., at page 479 (140 N. E. 376), that there was a failure of proof upon the trial of the cause, and this matter could not have been determined in the first review because there had at that time been no trial of issues of fact. The Ohio courts are therefore not out If it be conclusively inferred from this very indefinite pronouncement that in all cases where the declaration of law on the The syllabus of the later judgment confirst review is erroneous, it will be disre- tains no discussion whatever of the doctrine garded on the second review, it must be of the law of the case, and manifestly that conceded that very little would be left of doctrine could have no direct application, bethe doctrine itself. It will be observed, how-cause the hearing in the trial court after ever, that the case in the 6th Ohio State was decided many years before the pronouncement in the 32d Ohio State, and it will also be found that in the opinion of Williams, J., in the 47th Ohio State no reference whatever is made to the 32d Ohio State; nor is it distinguished, criticized, or in terms overruled. Manifestly, the doctrine would be utterly devoid of meaning if applied only when the decision upon the former appeal is sound. If the former decision is sound there is no occasion to invoke the rule, because any sound decision ought to be affirmed; no vitality or meaning can be given to this doctrine unless it is made to apply to an erroneous decision. We can only conclude therefore that in each of those cases the court did not carefully consider the effect of the language above quoted, and we think therefore it does not follow that the court would have made a different ruling if error had been found to exist in the former appeal. The court in each of those cases was only considering the record then before it in which the error was found. It is further contended that the case of Russell, Adm'r., v. Fourth Natl. Bank, 102 Ohio St. 248, 131 N. E. 726, disapproves this doctrine. There is no declaration whatever in the syllabus of that case either nearly or remotely referring to the doctrine, and a of harmony with the courts of other states of the Union and the federal courts upon this doctrine. [3] Although we are affirming the doctrine of "the law of the case," when we come to apply the rule to the instant case and make a careful study of the second trial, it is found that the trial court did not give full effect to the mandate of the Court of Appeals upon the first review, and further that the mandate did not cover the entire case presented in the second trial. This situation is covered in 4 Corpus Juris, at page 1097, and many cases are there discussed from which the editor reaches the following conclusion: "Where, after a definite determination, the court has remanded the cause for further action below, it will refuse to examine questions other than those arising subsequently to such determination and remand, or other than the propriety of the compliance with its mandate; and if the court below has proceeded in sub- | an appropriation of property. This being stantial conformity to the directions of the ap- the theory upon which compensation is pellate court, its action will not be questioned awarded in favor of the property owner on a second appeal. But if the mandate does and against the municipality, the same not cover the entire case, but leaves something undetermined to be inquired into and adjudicated, or if the lower court misconstrues the decree of the appellate court and does not give full effect to its mandate, a new appeal is an appropriate remedy." measure of damages must necessarily be ap- The weight of the authorities cited fully support the conclusion stated. Applying the general rule to the instant case, in the light of those conditions and exceptions as above stated, we find no error in the judgment of the Court of Appeals reversing the second judgment and remanding the cause for a third trial. It is manifestly desirable that it be tried by the application of correct prin-between value and damages. It is manifest ciples of law, and that the damages existing, if any, be measured by a standard uniform rule which has been generally approved in the past and which may be employed as a precedent in future cases. In any event, in this particular case, the cause having been certified to this court for review and final determination, it is obligatory upon this court to declare the true rule which shall govern this case and all other cases grounded upon similar facts. [4] It is alleged as a ground of recovery in this case that the plaintiff erected improvements upon her property before a grade had been established, but that she exercised reasonable care and judgment in erecting buildings and making improvements with reasonable regard to a future grade to be thereafter established; that after said improvements had been constructed the city through its council adopted a grade which was unreasonable, resulting in damage. [5,6] It has been established by several decisions of this court that where improvements are erected by a property owner with reference to an established grade which was thereafter changed, damages may be recovered, and it is not disputed by counsel in this case, neither is it doubted by this court, that the same rule applies under the facts pleaded in this case. We will assume that the jury found the grade adopted by the city to be unreasonable, and we are therefore confronted only with the question of the measure of damages. The measure of damages has never been declared by any previous decision of this court in any case involving a change of the grade of a street. In the case of Crawford v. Village of Delaware, 7 Ohio St. 459, there is no discussion of the measure of damages, but there is a discussion, beginning at page 470 of the opinion, concerning the nature of a proceeding whereby a change of grade is adopted, and it is therein declared that property owners are entitled to compensation because the change is an invasion of a private right The that if a reasonable grade should be es- This is the rule which was very briefly laid down in Columbus, H. V. & T. Ry. Co. v. Gardner, 45 Ohio St. 309, and it is stated on page 322 of the opinion (13 N. E. 69) that the rule is too well settled in this state to admit of further controversy. This rule was followed by counsel in the trial of the case in the insolvency court, in propounding questions to the witnesses, except that counsel was not always careful to confine the questions to market values. It has already been observed that on the second trial of the case in the insolvency court the trial court did not give full effect to the mandate of the Court of Appeals, and that the mandate did not cover the entire case presented in the second trial. As a part of the instruction upon the measure of damages the trial court made the following statement: "Different methods and differences in value have been given you, one method being for the erection of a retaining wall and the filling in of the lots and the raising of the buildings and (146 N.E.) expense cannot be allowed. If for instance you find a fill necessary and a retaining wall unnecessary, then the latter cannot be added to the cost of a proper fill. It is for you to determine from the evidence which is the most feasible and the most reasonable and economical and practicable way of treating the property to get at this question of damages, if you find she is entitled to any damages." of Little Falls, 102 Minn. 358, 113 N. W. 884, 13 L. R. A. (N. S.) 790, 120 Am. St. Rep. 635. Under such circumstances, it is not easy to see how it is competent in any event for the claimant to introduce evidence of the cost of alterations. This inquiry should only come on the part of the city, in the event that the general damages could be minimized by making alterations. For these reasons the judgment of the Court of Appeals will be affirmed. Judgment affirmed. ROBINSON, ALLEN, and CONN, JJ., con cur. con JONES, J. (dissenting). We concur in the judgment and in that part of the syllabus which relates to the question of damages. However, we dissent from the first three propositions contained in the syllabus. This instruction was a gross departure from the uniform rule of measuring the damages by ascertaining the value of the property before and after the improvement. Many cases hold that an inquiry may be made into the cost and expense of alterations and restorations, for the purpose of JONES, MATTHIAS, and DAY, JJ., adjusting the property and its improvements to the new conditions created by the change cur in propositions 4, 5, and 6 of the syllabus, of grade. This is, however, not for the pur- and in the judgment, but dissent from proppose of ascertaining the extent of the propositions 1, 2, and 3 of the syllabus. erty owner's damage. Its purpose is to ascertain whether the damages shown by decrease in market value can be minimized by resorting to alterations and adjustments. If, for example, property left after a street improvement in an unsightly condition should be estimated to be worth $1,000 less than There are important facts, however, which before the improvement, and by the expendi- have been omitted from the majority opinture of $100 the property could be restored ion. When the cause was first taken to the to its former value, the property owner appellate court it was reversed and remandwould be made fully whole by the payment ed by the Court of Appeals of the first disof $100, and the cost of alterations and ad-trict. It appears from their opinion, but justments should then become the measure not from this record, that it was remanded of damages. A different rule prevails when to the trial court with instructions relating the cost of alterations to suit the fancy of to the measure of damages, which another the owner, or to meet the different ideas of appellate court on the second review found, witnesses called to testify as experts on the and this court now finds, to be erroneous. subject of alterations, shall exceed the When, the cause came to the Court of Appeals amount of the difference in values of the the second time, another Court of Appeals, property before and after the improvement. to wit, the judges of the Fourth appellate In the instant case, the same witnesses who district, sat in place of the judges of the had given testimony of values before and First appellate district and held that the after the improvement were also interrogat-charge on the measure of damages suggested ed as to the cost of making alterations, and by the First District Court of Appeals was in each instance the cost of alterations exceeded the difference in values as estimated by those witnesses. An examination of the record discloses that the testimony as to the amount of the difference in values was approximately $2,000, and that no witness set a greater difference than $2,000 except one whose testimony was that the difference would be between $2,000 and $2,500. The testimony on the subject of the cost of alterations ran very much higher. It is apparent that the verdict is responsive to the higher estimates upon the subject of alterations and adjustments. This portion of the charge is therefore clearly prejudicial. Such testimony, according to the authorities, is only competent when alterations could be made at a cost which would be less than the amount of the difference in values. City of Topeka v. Martineau, 42 Kan. 387, 22 P. 419, 5 L. R. A. 775; Smith v. Kansas City, 128 Mo. 23, 30 S. W. 314; Ziebarth v. Nye, 42 Minn. 541, 44 N. W. 1027; Sallden v. City erroneous. They again reversed and re- |