Railroad Co. v. Cincinnati

• Decision Date: 25 June 1907
• Docket Number: 10400
• Citation: 76 Ohio St. 481,81 N.E. 983
• Parties: The Louisville & Nashville Railroad Company v. The City Of Cincinnati.
• Court: Ohio Supreme Court

81 N.E. 983

76 Ohio St. 481

The Louisville & Nashville Railroad Company v. The City Of Cincinnati.

No. 10400

Supreme Court of Ohio

June 25, 1907

Public streets and grounds are held in trust for the public - Subject to rights of abutting owners - Under control of legislative power of state - Municipal authorities may grant right of way to railroads, when - Sections 3283, 3337-1, 3337-17a and 3337-17b, Revised Statutes, construed - Rights of eminent domain - Ordinance of Cincinnati council as to right of way for L. & N. railroad - Passed November 7, 1904 and amended August 28, 1905, is void - Municipal law.

1. Public streets, squares, landings and grounds are held in trust for the public, and being so held they are, for the use for which they were dedicated or acquired and subject to the property rights of the abutting owners, under the absolute control of the legislative power of the state. In this state the care, supervision and control of public highways, streets and grounds in cities is delegated to the council; but notwithstanding this delegation of general power over them the state, now and since 1852, has in express terms delegated to cities the power to grant to railroad companies the right to occupy or incumber and use them, or in express terms has made the right subject to agreement with the municipal authorities as to the manner in which they are to be occupied, so that the general power of care, supervision and control, that has been delegated to cities, does not carry with it the power to grant such right.

2. Neither Sections 3283, 3337-1, 3337-17a, 3337-17b, nor the act entitled: "An act to provide how railroad and highway crossings may be constructed," 97 Ohio Laws 546, authorize a municipality to grant to a railroad company the right to occupy a public common or landing with an elevated railroad structure.

3. It is not in the power of the legislature, unless in the exercise of the power of eminent domain, to authorize property, dedicated to the public for a specific purpose, to be used for a purpose inconsistent with the purpose for which it was dedicated.

4. The ordinance of the council of the city of Cincinnati, entitled "An ordinance agreeing upon the manner, terms and conditions upon which The Louisville & Nashville Railroad Company may use, occupy and cross over, along and upon the streets, alleys and public grounds of the city of Cincinnati, for the purpose of constructing, maintaining and operating an extension of its steam railroad from a point at or near pier No. 1, on the Ohio side of the Newport and Cincinnati bridge in the city of Cincinnati, to the site of a proposed depot south of Water street, between Vine and Plum streets, in said city," passed November 7, 1904, and as amended August 28, 1905, is void.

In the year 1789 the proprietors of a tract of land on the Ohio river laid out the town of Cincinnati. On the plat or plan of the town the ground lying between Front street and the river was set apart as a common for the use and benefit of the town forever, reserving only the right of a ferry. This common extends from Broadway street on the east to Main street on the west and from the river on the south to Front street on the north, and is about five hundred feet wide by one thousand feet in length. The city of Cincinnati has now become a great city, and a number of its streets open into this common, or, as it is usually denominated, public landing. In the briefs of one of the counsel it is said that every municipality on both banks of the Ohio river has its public landing, but that Cincinnati, in this respect, has exercised less foresight than any city between Pittsburg and Cairo, for, of its twenty miles of river front, this is the only part reserved as a means of public access to the river, and with slight exception all of the river front above and below is occupied by railroads.

The Louisville & Nashville Railroad had for many years entered the city of Cincinnati on a bridge over the Ohio, connecting Newport, Kentucky, with Cincinnati, east of the public landing, and had used, for its yards and station property, land east of the bridge. The increase in its business made larger terminal facilities a necessity, and in the year 1904 the company entered upon the work of providing them. The site procured is located on the water front and is west of the public landing. To reach this site with a practicable structure required, it is said, the exercise of considerable engineering skill; that it was necessary to construct a western approach to the bridge and that west of the point where the approach would leave the bridge was another bridge, known as the Broadway and Newport bridge, so situated that the approach to be constructed must be made to a grade low enough for trains to pass in safety beneath that bridge. And, going thence westwardly, the approach passed first over private property and then had to cross the public landing and west of the public landing to pass under the suspension bridge, connecting Covington with Cincinnati.

The railroad having perfected its plans applied to the council of the city of Cincinnati to grant it the right to occupy and cross over, along and upon the streets, alleys and public lands of the city for the purpose of constructing, maintaining and operating an extension of its railroad. And on November 7, 1904, the council of the city passed an ordinance entitled: "An ordinance, agreeing upon the manner, terms and conditions upon which The Louisville and Nashville Railroad Company may use, occupy and cross over, along and upon the streets, alleys and public grounds of the city of Cincinnati for the purpose of constructing, maintaining and operating an extension of its steam railroad from a point at or near pier No. 1, on the Ohio side of the Newport and Cincinnati bridge in the city of Cincinnati, to the site of a proposed depot south of Water street, between Vine and Plum streets, in said city." Section 1 of this ordinance was amended by an ordinance passed August 28, 1905.

The route described in the amended ordinance is as follows: Beginning at pier No. 1 of the Newport and Cincinnati bridge; thence over private property with a curve to the left one hundred and fifty-two feet; thence over the same with a curve to the left two hundred and seventy-six feet to the south side of Front street, twenty-seven feet west of the east side of Pike street extended; thence over the south sidewalk of Front street, seventy-five feet; thence over the same with a curve to the left eighty-four feet; thence over private property with the same curve one hundred and twenty-one feet; thence over the same with a straight line seventy-three feet; thence over the same with a curve to the right eighty-seven feet to the east side of Lawrence street, ninety feet south of the south side of Front street; thence across Lawrence street with the same curve fifty-four feet; thence over private property with the same curve fifty-four feet; thence over the same with a straight line ten feet north of Griffin street and parallel thereto four hundred and forty-eight feet to the east side of Ludlow street; thence across Ludlow street with the same straight line seventy-one feet; thence over private property with the same straight line one hundred and sixty-one feet; thence over the same with a curve to the right two hundred and sixty-nine feet; thence over the same with a straight line forty-seven feet; thence over the same with a curve to the left one hundred and twenty-six feet; thence over the same with a straight line, eight feet north of the United States harbor line and parallel thereto eight hundred and forty-six feet; thence over the same with a curve to the left thirty-six feet to the west side of Main street, seven feet north of the south side of Water street; thence over the south sidewalk of Water street with the same curve twenty-one feet; thence over private property with the same curve sixty-eight feet; thence over the same with a straight line forty-two feet; thence over the same with a curve to the right one hundred and six feet; thence over the same with a straight line eighty-four feet; thence over the same with a curve to the right sixty feet; thence over the same with a straight line six and one-half feet north of the United States harbor line and parallel thereto forty-seven feet to the east side of Walnut street; thence across Walnut street with the same straight line sixty-five feet; thence over private property with the same straight line four hundred and six feet to the east side of Vine street; thence across Vine street with the same straight line sixty-seven feet to the freight yard of the Louisville and Nashville Railroad.

Also beginning at a point on the above described line one hundred and ninety feet east of the east side of Walnut street; thence over private property with a turnout for a No. 8 frog into a straight line parallel to the above described line and fourteen and one-half feet northward therefrom, one hundred and eighty-seven feet to the east side of Walnut street; thence across Walnut street with the same straight line sixty-five feet; thence over private property with the same straight line two hundred and fifty-eight feet; thence over the same with a curve to the right one hundred and forty-five feet to the east side of Vine street, one hundred and seventy-three feet south of the south side of Water street; thence across Vine street with the same curve sixty-seven feet to the freight yards of the Louisville & Nashville Railroad Company.

Also beginning at a point in the last above described line twenty-six feet east of the east side of Vine street; thence over private property with a straight line twenty-six feet to the east side of Vine street; thence...