Ohio Electric Power Co. v. State, Ex Rel.

• Decision Date: 12 June 1929
• Docket Number: 21302
• Parties: Ohio Electric Power Co. v. The State, Ex Rel. Martin, Pros. Atty.
• Court: Ohio Supreme Court

167 N.E. 877

121 Ohio St. 235

Ohio Electric Power Co. v. The State, Ex Rel. Martin, Pros. Atty.

No. 21302

Supreme Court of Ohio

June 12, 1929

Municipal corporations - Twenty-year electric-light franchise granted in 1890 (84 O.L., 7) - Perpetual right to occupy streets not acquired from state, when - Nor by acquiescence or non-action of public officials or through estoppel.

Messrs Fauver & Fauver, and Mr. W.R. Pruner, for plaintiff in error.

Mr Edgar G. Martin, Mr. G. Ray Craig and Mr. Charles Suhr, city solicitor, for defendant in error.

BY THE COURT.

This is an action in quo warranto, originating in the Court of Appeals of Huron county, wherein is challenged the right of the defendant, the Ohio Electric Power Company, to maintain its poles, wires, and electrical equipment in the streets alleys, and public places in the city of Norwalk for the purpose of distributing and supplying electric current for commercial and private lighting, and plaintiff prays an order ousting the defendant therefrom. The Court of Appeals on hearing found for the plaintiff and ordered a decree of ouster as prayed for in the petition. Thereupon a petition in error was filed in this court.

The rights of the respective parties may readily be ascertained from a consideration of the facts disclosed by the record. The defendant, the Ohio Electric Power Company, became the owner of the property concerned, and of certain rights privileges, and franchises, by successive grants from the Northern Electric Company, a corporation formed April 30 1895. Shortly after its incorporation, to wit, May 20, 1895, the Northern Electric Company procured a transfer to itself of the property, including all rights and franchises, theretofore belonging to the Incandescent Light & Power Company, a corporation organized March 7, 1891, and had acquired a 20-year franchise, which in 1890 had been granted to the Norwalk Incandescent Light Company, a partnership. The grant by the municipality to the partnership, which thereafter incorporated and became the Incandescent Light & Power Company, was for a stipulated and expressly limited term of 20 years, and granted a right of way upon the streets, alleys, and public grounds of said city for the purpose of therein erecting and maintaining necessary poles and wires to provide and successfully operate a system of incandescent lighting. No written acceptance was provided for, nor shown in the record, but it does appear that the ordinance was enacted upon "the application of the partnership, members of which attended the meeting of council and personally accepted the grant, and thereupon the grantees entered upon, and thereafter the company which took over the property of the partnership continued to operate, the plant and lines constituting the only lighting system then existing in the city of Norwalk. Said company was incorporated in March, 1891, its purpose being the furnishing to the citizens of Norwalk and vicinity electric current for lighting, power, and heating. Later, through an assignee for creditors, and by order of court, all the property of said company, including "all franchises, patronage, good will and rights of said business," were sold and transferred to certain individuals named, who, in May, 1895, by conveyance of similar purport and description, transferred the same to the Northern Electric Company. By like description the same property was on May 8, 1900...