Cincinnati, H. & D. Ry. Co. v. City of Troy

• Decision Date: 16 June 1903
• Citation: 67 N.E. 1051,68 Ohio St. 510
• Court: Ohio Supreme Court
• Parties: CINCINNATI, H. & D. RY. CO. et al. v. CITY OF TROY.

67 N.E. 1051

68 Ohio St. 510

CINCINNATI, H. & D. RY. CO. et al. v. CITY OF TROY.

Supreme Court of Ohio.

June 16, 1903

Error to Circuit Court, Miami County.

Action by the city of Troy against the Cincinnati, Hamilton &amp Dayton Railway Company and others to condemn certain land. From the judgment the city brought error to the circuit court, and on reversal defendants bring error. Judgment of circuit court reversed, and of common pleas court affirmed.

A proceeding by the city to appropriate property for the extension of McClung street across the railroad owned by the Dayton & Michigan Railroad Company, and operated and held under lease by the Cincinnati, Hamilton & Dayton Railway Company, was tried in the court of common pleas for the determination of compensation and damages. At the point of intersection of the railroad company with the proposed street the railroad had been constructed upon a high fill, so that the proposed improvement would require the trains to be carried over the street upon a bridge whose construction it was admitted would be made necessary by the proposed extension of the street. The jury returned a verdict as follows:

For land taken for said street from

outlot No. 19 $ 125 00

For damages to residue of said outlot

and for crossing said railroad

right of way 75 00

Damages for construction of viaduct

over said street at said crossing 6,117 00

Total assessment $6,317 00

A motion for a new trial having been overruled, judgment followed the verdict. The city filed a petition in error in the circuit court, where the judgment was reversed because in the opinion of that court, the judge of the common pleas court had erred in charging the jury.

Syllabus by the Court

1. In a proceeding to appropriate the property of a company owning an existing railroad, for the purpose of extending a street under its tracks, such company is entitled to compensation for the cost of a bridge or viaduct to carry its trains over the street.

R. D. Marshall, A. F. Broomhall, and A. McL. Marshall, for plaintiffs in error.

Gilbert & Shipman, for defendant in error.

SHAUCK, J. (after stating the facts).

In the introductory and general portion of the charge there is a use of inappropriate language, upon which counsel for the city base the claim that the jury were directed that, in estimating the damages to the portion of the property not taken, there could be no deduction on account of benefits which might accrue to it from the extension of the street but no criticism is or could be made upon that portion of the charge in which particular instruction was given upon that subject. Viewing the entire charge, it appears that the trial judge entertained the view, admitted to be correct, that, in determining the value of the property taken, there could be no deduction on account of benefits to the residue, but that in determining the damages to the residue they should ascertain the damages upon all considerations affecting that question. It does not seem likely that the instructions would mislead the jury in that particular, and attention to the evidence and the verdict shows that they did not.

The question of importance arises out of that portion of the charge in which the jury were told that their verdict should include the cost of constructing the bridge or viaduct which would be necessary to...