Cincinnati, S. & C.R. Co. v. Village of Belle Centre

• Citation: 48 Ohio St. 273,27 N.E. 464
• Court: Ohio Supreme Court
• Decision Date: 31 March 1891
• Parties: CINCINNATI, S. & C. R. CO. v. VILLAGE OF BELLE CENTRE.

27 N.E. 464

48 Ohio St. 273

CINCINNATI, S. & C. R. CO. v. VILLAGE OF BELLE CENTRE.

Supreme Court of Ohio.

March 31, 1891

[Copyrighted Material Omitted]

Error to circuit court, Logan county.

On the 30th of September, 1881, the Cincinnati, Sandusky &amp Cleveland Railroad Company, Edward Mains, and J. C. Mains commenced their action in the court of common pleas of Logan county against the village of Belle Centre, to enjoin the defendant from taking possession of certain real estate within its limits, under a proceeding theretofore had in the probate court for the appropriation of the premises for the purposes of public offices and a prison for the village. The allegations and prayer of the petition are as follows:

‘ (1) The said village of Belle Centre is a municipal corporation organized under the laws of Ohio, and situate in said Logan county. The Cincinnati, Sandusky & Cleveland Railroad Company is, and for ten years last past has been, a corporation organized under the laws of Ohio, owning the line of railroad and the real estate hereafter mentioned.

‘ (2) In the year 1832 the Mad River & Lake Erie Railroad Company was created by and organized as a corporation under a special act of the legislature of Ohio, with full power and authority to construct a railroad from the city of Sandusky to the city of Springfield, in said state, and to acquire title to and hold all real estate requisite or convenient for right of way, depots, stations, side tracks, turn-tables etc., for the construction and convenient operation of said road.

‘ (3) On the 12th day of June, 1846, one Robert Mitchell and Robert D. Hemphill, being the owners of lot No. 4, in said village of Belle Centre, of which they were the proprietors proposed to the said the Mad River & Lake Erie Railroad Company to convey to it the said lot No. 4 in consideration that said company would locate and construct its line of railroad through and across the said village, and through, across, and upon said lot; which proposition the said company then accepted, and then located and constructed its line of road through and across the said village, and upon and across the said lot. In consideration thereof the said Mitchell and Hemphill then conveyed to the said the Mad River & Lake Erie Railroad Company the said lot No. 4, as a place of depot forever. A copy of the deed therefor is in the record of the proceedings hereinafter mentioned. The said the Mad River & Lake Erie Railroad Company then accepted said lot, and erected thereon a depot building, with appurtenances, for the operation of the said road, which ever since has been and now is maintained thereon. By judicial sale and reorganization under the laws of Ohio, and conveyances under the same, the title to all the said line of road, its real estate, right of way, and equipments, including said lot No. 4, passed to and is now vested in the said the Cincinnati, Sandusky & Cleveland Railroad Company.

‘ (4) The village of Belle Centre, on the 6th day of August, 1881, filed in the probate court of Logan county its application to condemn and appropriate for village offices and prison a portion of the said lot No. 4; a copy of which application is hereto attached, marked ‘ B,’ and made part of this petition.

‘ (5) The plaintiff, said railroad company, was served with no process of notice to said application, as required by law; the only pretended notice being a newspaper publication, of which a copy is hereto attached, marked ‘ C,’ and made part of this petition. On the said portion of lot sought to be appropriated a building and structure then was and still is standing, of which the said Edward H. Mains and J. C. Mains were and are joint owners each of the one undivided third part, and upon whom no notice whatever of the said application and proceeding was ever served, or caused to be served, by the said village or otherwise.

‘ (6) Plaintiffs say that said portion of lot so sought to be appropriated was then and is part of said lot No. 4, upon which said depot buildings are standing and occupied, the said Edward H. Mains and J. C. Mains occupying said portion temporarily for a mere temporary purpose.

‘ (7) On the 27th day of August, 1881, the said probate court wrongfully, and without any authority or jurisdiction, illegally made an order of appropriation authorizing and empowering the said village to enter upon and take possession of the said portion of lot No. 4, and erect and maintain thereon village offices and a prison on payment to the plaintiff, said railroad company, of $234.16 compensation for said portion of lot, and to one Charles Mains $100 for said structure. Under said illegal and pretended order the said village is threatening to enter upon and take possession of said portion of said lot and said structure, and erect and maintain thereon village offices and a prison, and in addition thereto to erect and maintain thereon business rooms to be occupied as stores for general commercial business and trade; all of which it will do without authority, under said illegal order, to the great and irreparable damage of the plaintiffs severally, unless restrained by order of injunction from this court.

‘ (8) The plaintiffs say that the said portion of lot is neither indispensable nor necessary for the construction of said village offices and prison; that there are many other lots and parcels of land in said village severally suitable and convenient for such offices and prison, which the defendant can procure at reasonable price either by purchase or judicial appropriation.

‘ (9) The plaintiffs say that the said village is not, nor is its council, clothed with authority or power to condemn or appropriate said part of said lot; that said probate court had no authority or jurisdiction to entertain or hear said application, or to authorize proceedings under the same to condemn or appropriate any part of said lot for said purposes; that all its said proceedings are and will be null and void; but, if permitted, will be a cloud upon, and may ripen into an occupancy inconsistent with, plaintiffs' rights and title, and work the entire forfeiture thereof. During all the months of July and August, 1881, the said corporation plaintiff had and maintained its general office and place of business in the city of Sandusky, in the state of Ohio, constantly in charge of its proper officers, agents, and clerks, and had and maintained its full organization and proper officers under the laws of and within said state, during all said time, and is not nor was a foreign corporation at any time.

‘ (10) The plaintiffs, and each of them, therefore pray that the said village, its agents and officers, may be restrained and perpetually enjoined from asserting any estate, or exercising any right, under said order of appropriation, and from taking or maintaining possession of said part of lot No. 4; that the said order and judgment of appropriation be annulled; and that in the mean time a provisional injunction be allowed restraining them therefore until the final hearing; and for other proper relief.’

At the commencement of the action a temporary injunction was allowed as prayed for in the petition, and afterwards, on the 5th of October, 1881, the plaintiffs filed the following supplemental petition, and obtained thereon a further temporary injunction according to its prayer, viz.: ‘ The plaintiffs say that on the 30th day of September, 1881, they obtained an injunction and filed their petition in the above-entitled cause restraining the said village, its officers and agents, from erecting or maintaining any building or structure on the south-easterly part of lot No. 4, in said village, and from interfering with or molesting the structure now thereon standing. The now come and file this their supplemental petition against George Young, mayor of said village, Jefferson Wright, Lyman Dow, William Sicke, et al., members of the council of said village, and Thomas Nelson, Thomas Livingston, and M. A. Smith, Jr., and aver against them, all and singular, the matters and facts alleged and averred in their said original petition, as fully as if the same were herein set forth at large. They further aver that the said Nelson, Livingston, and Smith, wrongfully claiming to act under some pretended authority or contract derived from or had with the mayor and council of said village, are contemptuously disregarding and violating the said order of injunction, and are now engaged in molesting and disturbing the said structure mentioned in the said original petition, and are digging and excavating the soil of part of said lot wrongfully, and are erecting thereon a structure as described and mentioned in their said original petition, in violation of the court's injunction, and without any legal authority or right, and in contemptuous disregard of the authority and order of the said judge, and the court allowing said injunction, which, if permitted to continue, will work an irreparable injury to these plaintiffs. They therefore pray that the said mayor of said village, and members of said village council, Thomas Nelson, Thomas Livingston, and M. A. Smith, be made defendants, and be enjoined and restrained from further proceeding in the said digging, excavation, erection, and molestation, on or about the part of said lot, until the final hearing of their said original petition, or until the further orders of the court; and from doing any of the acts which the said village is now restrained from doing by the said injunction.’

The original defendant answered as follows: ‘ Now comes said defendant, and for answer to the petition and supplemental petition of plaintiff denies each and every allegation therein contained, excepting the allegation that defendant is a...