Railroad Co. v. Martins Ferry

CourtUnited States State Supreme Court of Ohio
Citation157 N.E. 110,92 Ohio St. 157
Docket Number14462
PartiesThe Cleveland & Pittsburgh Railroad Co. Et Al. v. The City Of Martins Ferry
Decision Date04 May 1915

Constitutional law-Grade-crossing act-Section 8807 et seq., General Code constitutional-Section I, Article II, Constitution-Municipal corporations-appropriation of property-Section 3677,General Code, unrepealed and unmodified-Determination of question of necessity-Jurisdiction of common pleas court-To determine all questions in one proceeding.

1. The statute known as the grade-Crossing act, Section 8897

et seq., General Code, is not In conflict with Section 1 Article II of the Constitution of Ohio, and is valid.

2. The enactment of that statute did not repeal Section 3677,

General Code, nor in anywise modify its requirements hence the appropriation proceeding therein authorized cannot go forward until it shall have been determined by a court of competent jurisdiction that such appropriation will not unnecessarily interfere with the reasonable use of the property to be crossed by the proposed Street.

3. Upon proper pleading by the city, tendering the issue, the court of common pleas may, in the same proceeding, hear and determine all questions arising under Sections 3677 and 8899, General Code.

Facts stated in opinion.

Messrs. Healea & Kinsey and Mr. J. C. Heinlein, for plaintiffs in error.

Mr. David H. James, city solicitor, and Mr. William Dixon, Jr., for defendant in error.

MATTHIAS J.

The Cleveland & Pittsburgh Railroad Company and The Pennsylvania Company filed their joint petition in the court of common pleas of Belmont county alleging that the city of Martins Ferry had instituted an action in said court for the assessment of compensation and damages accruing by reason of the appropriation of a portion of their right of way for public street purposes; that the proposed place of crossing is occupied by four tracks of said companies, and the switch-point of the switches that serve the freight traffic of two large industrial establishments located near said railroad, and that one of said tracks is a portion of and the lead track into extensive yards used in connection with said railroad as distributing yards for a local freight district which includes the industrial establishments of said city of Martins Ferry and also the city of Bellaire; that the situation of said tracks and the condition of the business of said companies is such that the appropriation of said property and the extension of said street across their right of way and tracks will unnecessarily interfere with the reasonable use of said property for railroad purposes and will inflict irreparable damage upon the plaintiffs by permanently hindering, impairing and destroying the use of said tracks and of said property as part of the yard system of the plaintiffs. Plaintiffs pray that said city be enjoined from further prosecuting said appropriation proceeding.

In its answer, as a second defense, the city averred that it had theretofore filed its petition in said court praying for an order permitting said city to cross the railway tracks and right of way of said companies at grade for the purpose of opening and extending Sherman avenue thereover; that said cause was heard upon the amended petition, the answer of said companies, the reply of the city and the evidence; that thereupon an order was entered by the court permitting said crossing at grade as prayed for; that upon appeal to the circuit court the following order was made:

"This cause came on to be heard upon the amended petition of plaintiff, the answer of the defendants and reply of plaintiff thereto and the evidence; and upon due consideration thereof, the court finds that the allegations of the said petition are true; that by reason of the situation of the land at this place, it would be impracticable, and impos- sible to cross said railroad track and right of way by either an overhead or an under crossing, or in any other way than at grade; that it is necessary to cross said railroad tracks at grade; and such construction is reasonably required to accommodate the public, and in order to make any crossing. It is therefore ordered and decreed that said plaintiff be and is hereby permitted to make such crossing, at grade."

A demurrer to said second defense was overruled in the court of common pleas and a similar ruling was made in the court of appeals. Thereafter a reply was filed alleging the unconstitutionality of the so-called grade-crossing act being Sections 8897, 8898 and 8899, General Code, and a motion of the city for judgment was sustained. A reversal of this judgment is sought by pl...

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