Columbus Gaslight & Coke Co. v. City of Columbus

• Decision Date: 24 January 1893
• Citation: 33 N.E. 292,50 Ohio St. 65
• Court: Ohio Supreme Court
• Parties: COLUMBUS GASLIGHT & COKE CO. v. CITY OF COLUMBUS.

33 N.E. 292

50 Ohio St. 65

COLUMBUS GASLIGHT & COKE CO. v. CITY OF COLUMBUS.

Supreme Court of Ohio.

January 24, 1893

Error to circuit court, Franklin county.

Action by the Columbus Gaslight & Coke Company against the city of Columbus. Plaintiff had judgment which was reversed by the circuit court, and plaintiff brings error. Affirmed.

The other facts full appear in the following statement by SPEAR C. J.:

The plaintiff in error commenced the original action by the filing in the court of common pleas of its petition, as follows: ‘ The plaintiff, the Columbus Gaslight &amp Coke Company, is a corporation duly organized under the laws of this state for the purpose of supplying gas for lighting the streets and public and private buildings of the city of Columbus. The defendant, the said city of Columbus, is a municipal corporation of this state, located in Franklin county, and organized as a city of the first grade of the second class. The plaintiff is, and for more than thirty years last past has been, the owner of a certain easement or right in the public streets and alleys of the defendant, duly and for sundry valuable considerations granted by the defendant to the plaintiff, to wit, the right to lay and maintain its pipes in the said public streets and alleys for the purpose of conveying gas to the said city and the citizens thereof. In the exercise and enjoyment of said right, and in accordance with the terms and conditions of the same, the plaintiff, several years prior to the year A. D 1887, for the purpose of conveying gas to the said city and the citizens thereof, laid in that part of Broad street (one of the public streets of said city) between Winner avenue and Reed avenue, and in conformity with the grade of said part of said street, which was then already established, a main pipe and a service pipe, and continued to maintain and use said pipes for the purposes aforesaid, until, in the summer of 1887, the defendant changed the grade of said part of said street, excavated the ground, and lowered the level thereof and thereby interfered with plaintiff's said pipes necessitating the removal or abandonment of the same, and the relaying by plaintiff, of pipes to conform to the new grade, to plaintiff's damages in the sum of $406.60, with accruing interest. Plaintiff filed its said claim for damages with the clerk of said city of Columbus on the 24th day of January, A. D. 1888, but the same is still wholly unpaid. Wherefore plaintiff asks judgment against the defendant for the said sum of $406.60, with accruing interest.’ To this pleading the city, by its solicitor, interposed a general demurrer, which, being overruled, the cause was tried, resulted in a judgment for plaintiff. The circuit court reversed the judgment, and ordered the cause remanded.

Syllabus by the Court

1. The power to grade and improve streets is conferred upon municipal authorities for the public benefit. It is a continuing power, and is not exhausted by the first exercise of it; nor can it, in the absence of statutory authority, be ceded nor bargained away; nor can one council, by its exercise, abridge the capacity of its successors to perform their duties in that behalf as the public interest may demand.

2. A gas company laying its pipes in the streets of a city, under a grant from the city, in conformity with an established grade, does so subject to the right of the city to change the grade of the street whenever the necessities of the public require it; and, in the absence of wantonness or negligence on the part of the city, the company cannot maintain an action for damages occasioned by the necessity of taking up and relaying its pipes in order to accommodate them to the new grade.

R. H. Platt, for plaintiff in error.

Paul Jones and Florizel Smith, for defendant in error.

SPEAR, C. J., (after stating the facts.)

The single question is as to the sufficiency of the petition. If that states a cause of action, the judgment of the circuit court should be reversed; if not, the opposite result follows. It will be noted that there is no direct allegation that the grant from the city gave the company the right to maintain its pipes at any particular place in the street, nor at any prescribed depth beneath the surface. Nor is it averred that the action of the city was in any way wanton, nor that the change of the grade of the street was unnecessary; and that presumption is that the city acted, in that behalf, lawfully, and without negligence. Nor is it pretended that the city has denied the company's right to maintain its pipes in Broad street. The dispute involves only the right to maintain them where first laid.

The company's claim is that, while the consent of the city must first be obtained, the city having the right to make reasonable regulations as to the terms and conditions on which the company may occupy, yet, when the city has given its consent, has made the grant, the right in the streets is in the nature of an easement, which then belongs to the company by force of the statute, and the city cannot interfere with that right, save upon condition of awarding compensation for...