Lake Erie & W. R. Co. v. Board of Com'rs of Seneca County

• Citation: 57 F. 945
• Parties: LAKE ERIE & W. R. CO. v. BOARD OF COM'RS OF SENECA COUNTY et al.
• Decision Date: 24 October 1893
• Court: U.S. District Court — Northern District of Ohio

57 F. 945

LAKE ERIE & W. R. CO. v. BOARD OF COM'RS OF SENECA COUNTY et al.

United States Circuit Court, N.D. Ohio, Western Division.

October 24, 1893

J. M Lemmon, N. E. Hackedorn, and J. B. Cockran, for complainant.

George E. Schroth, for defendants.

RICKS District Judge.

This case is now before the court upon a motion to dissolve the temporary restraining order heretofore allowed upon the filing of the complainant's bill, restraining the commissioners of Seneca county from constructing a ditch upon the right of way of the complainant near the city of Fostoria. The complainant alleges in its bill that it is a corporation created by the laws of the state of Illinois that it operates a railroad between the states of Ohio Indiana, and Illinois, and is engaged in interstate traffic and the transportation of the mails of the United States, and passengers and merchandise. It alleges that the city of Fostoria is a flourishing city, for which and from which it transports a large amount of freight and merchandise. It further alleges that near said place, upon its roadway, and within 12 feet of its main track, the defendants propose to deepen and widen a ditch which has already been in existence along said right of way for some time; that the defendants propose to make said ditch 1,150 feet long, chiefly on the southerly side of their right of way, and to be from 15 to 17 feet wide at the top, and from 5 to 7 feet deep; that the construction of said ditch so near the main track would endanger the permanency of its roadbed, increase the dangers of accident, and, in cases of the derailment of a train, make the loss of life and injury to property much greater than it otherwise would be. It avers further that the enlargement of said ditch would make it necessary to remove the telegraph poles along its right of way, would make the maintenance and cleaning of said ditch an annual tax upon the complainant, and otherwise impair the stability of its roadbed and superstructure, and greatly increase the risks and hazards of operating its road.

Upon the filing of this bill a temporary restraining order was allowed. In due course of time the defendants filed an answer denying that the enlargement of said ditch would imperil the stability of the complainant's right of way or increase the perils attending the operation of its railroad. Said answer further avers that, owing to the peculiar character of the soil at the place where said ditch is to be constructed, the enlargement and deepening of the same would not make any impression upon the remaining part of the complainant's right of way. The answer further claims that a ditch of considerable size has been in existence along said right of way where the proposed ditch is to be constructed for a great many years. Affidavits in support of the averments of the bill and the answer have been filed by the respective parties.

From the averments in the pleadings, and from the affidavits filed, it seems to me very clear that the enlargement of the ditch as now proposed by the county commissioners would be a substantial invasion of the complainant's right to the public use of its property, which it acquired by virtue of condemnation proceedings taken under the statutes of the state of Ohio. The state, by its legislative acts and policy has invested railroad corporations with the right of eminent domain, and authorized them to acquire lands for public uses against the will of the owners. No exceptions are made, and the purpose of the legislation is unmistakable. The land so condemned and appropriated is impressed with a public use and trust. It cannot be appropriated to another public use, and to defeat the original grant, unless the sovereign power of the state has expressly delegated that power to some public corporation. If we look to the statutes of the state, we find authority invested in county commissioners and township trustees, under certain conditions, upon certain terms, and after certain procedure, to appropriate lands for public ditches or drains. But this authority is limited. While the power to use lands appropriated for railroad purposes...