57 F. 945 (N.D.Ohio 1893), Lake Erie & W. R. Co. v. Board of Com'rs of Seneca County

Citation57 F. 945
Party NameLAKE ERIE & W. R. CO. v. BOARD OF COM'RS OF SENECA COUNTY et al.
Case DateOctober 24, 1893
CourtUnited States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 945

57 F. 945 (N.D.Ohio 1893)

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

Page 946

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...

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