P. C. C. & St. L. Railway Co. v. Greenville

• Citation: 69 Ohio St. 487
• Decision Date: 02 February 1904
• Docket Number: 8192
• Parties: P. C. C. & St. L. Railway Co. v. Greenville.
• Court: United States State Supreme Court of Ohio

__ N.E. __

69 Ohio St. 487

P. C. C. & St. L. Railway Co. v. Greenville.

No. 8192

Supreme Court of Ohio

February 2, 1904

Appropriation of property by municipal corporation - For opening streets across railway tracks and lands - Section 2233, Revised Statutes - Railway company may seek relief in court of equity, when - Court may restrain proceedings for compensation assessments - Court procedure - Municipal law.

1. Where a municipal corporation exercises the power to appropriate for the purpose of opening or extending streets or alleys across railway tracks and lands held or owned by a railway company, under section 2233 and cognate sections Revised Statutes, and is about to file in the probate or common pleas court, an application for the assessment of compensation to the holder or owner of such railway property the company may resort to a court of equity by filing a petition against the municipality, alleging sufficient facts to show that such extension of the streets or alleys will unnecessarily interfere with reasonable use of said tracks and other property to be affected, and the court may upon such petition, restrain further proceedings for the assessment of compensation until the claim of the company may be judicially determined.

2. The petition involved in this case states a cause of action for the relief therein prayed for.

The action commenced in the court of common pleas, is for an injunction against the City of Greenville, to prevent it from extending wayne and Harrison avenues in said city across the tracks, side tracks, yards and other property of the railway company. Facts are alleged in the petition tending to show that the extensions proposed will unnecessarily interfere with the reasonable use of said property by the railway company; and that the city has passed a resolution to appropriate for the extensions, a part of the said railroad property, and is about to apply to court for the assessment of compensation. Other averments are noticed in the opinion.

The petition prays for an injunction against the city taking any steps for the purpose of having compensation assessed for the property appropriated, and that the city be enjoined from taking possession of the premises and from interfering with the plaintiff's use of the same, and that its rights be declared paramount to the rights of the city.

General equitable relief is prayed for.

The City of Greenville, by its solicitor, demurred to this petition on the ground that it does not state facts sufficient to con&twitted a cause of action against the city and does not state facts sufficient to warrant the court in granting the relief prayed for.

The demurrer was sustained by the court and petition dismissed and upon appeal the circuit court rendered a like judgment. Thereupon the railway company filed its petition in error in this court, seeking to reverse the judgment of the circuit court.

Messrs Anderson, Bowman & Anderson and Mr. C. B. Heiserman, for plaintiff in error, cited and commented upon the following authorities:

Railway Co. v. Fostoria, 4 Circ. Dec., 602; 7 C. C. R., 293; Giesy v. Railway Co., 4 Ohio St. 326; Railway Co. v. Dayton, 23 Ohio St. 510; Davis v. Davis, 11 Ohio St. 391; Clapp v. Banking Co., 50 Ohio St. 537; Railroad Co. v. Belle Centre, 48 Ohio St. 273; United States v. Jones, 109 U.S. 518; secs. 524, 2238, 2239, 2241, 2245, 2246, 2247, 2248, 2249, 2250, 2251, 2252, 2253, 2254, 2260, Rev. Stat.

Mr. Guy C. Baker, city solicitor; Mr. D. L. Gaskill and Mr. J. M. Bickel, for defendant in error, cited and commented upon the following authorities:

Railway Co. v. Dayton, 23 Ohio St. 510; Railroad Co. v. Belle Centre, 48 Ohio St. 296; Woods; Railway Law, 670; Railroad Co. v. Railroad Co., 66 Ill., 174; Railroad Co. v. Gas Co., 63 New York, 326; Haff v. Fuller, 45 Ohio St. 497; 1 High on Injunctions, 644; Railroad Co. v. Patterson, 37 Md., 125; 57 Md., 267; Spelling on Injunctions, par. 284; McDonald v. Payne, 114 Ind., 359; Connor v. Railroad Co., (Ky.) 19 S.W. Rep., 597; Lanterman v. Railroad Co., 28 N. J. Eq., 1; Adams v. Harrington, 114 Ind., 66; Railway Co. v. Fostoria, 4 Circ. Dec., 602; 7 C. C. R., 293; Railway Co. v. Fostoria, 56 Ohio St. 726; In re Application of City of Buffalo for Appointment of Commissioners, 64 N. Y., 547; Railway Co. v. Akron, 13 Dec., 411; Railroad Co. v. Hyde Park, 6 Dec., 327; 4 N. P., 296; Railroad Co. v. Toledo, 5 Dec., 306; 7 N. P., 285; act of May 3, 1852 (50 O. L., 223); act of April 28, 1873 (70 O. L., 175); secs. 2232, 2233, 2237, 2238, 2252, 2254, Rev. Stat.

PRICE J.

The questions involved in this proceeding are of more than ordinary interest, and deserve a careful review. The petition is elaborate with description of the property of plaintiff, the date of its acquirement, and the serious inroads about to be made upon it and its proper use. It is fruitful of apprehensions of impending danger to its property, and spreads before as for consideration the nature and extent of its possessions and rights in the city of Greenville which will surely be affected and inevitably injured if the defendant in error is allowed to proceed with the work of appropriation.

It is alleged that the council of the city of Greenville has passed an ordinance which, by its terms, appropriates portions of the plaintiff's premises, for the extension of wayne and Harrison avenues across the railway property, tracks and yards, the wayne street extension to be sixty-six feet in width; and that the railway company acquired the premises so to be crossed long prior to the establishing of either of said avenues, and that it had located and constructed its station and yards so as to be able to transact its business conveniently and safely, and at the same time accommodate the public. It has constructed and for many years maintained upon its premises its main railway track and three side tracks with the necessary switches and yards, and upon the same land has erected and maintained its freight depot, stockpens and weighing scales, all of which are in daily use, and absolutely necessary for the transaction of its business. The side tracks, switches and yards are used by the plaintiff to shift cars and make up trains to deliver to and remove from the station at Greenville, loaded and empty cars, and the side tracks are usually wholly occupied by freight cars, a large number of which are required to carry on the company's business, and that the side tracks and switches at the points of threatened extension are so arranged that daily a large number of vehicles and teams are driven upon the premises for the purpose of carrying away freight, or bringing in freight for shipment to other point. It also appears by averment, that other and sufficient streets have heretofore been extended across the company's lands to amply accommodate the traveling public, and that the company has no other grounds or lands which can be used or occupied for its business, and that none can be secured within the city limits, If the proposed extensions are made, the petition says, the railroad yards will be cut into three sections of about 300 feet each in length, and that to manage and make up its trains it will be impossible to comply with the laws of Ohio with reference to blockading of street crossings, and its property will thereby be rendered valueless to the company for the uses to which it is now devoted.

The petition then says that the appropriation of said property and the extension of said avenues will unnecessarily interfere with the reasonable use of the plaintiff's property for railroad purposes, and it will be prevented from the full and free exercise of its rights and privileges under the law. There are other averments in the petition which we need not at present set out. The company would have the city enjoined from making the extensions. Both of the lower courts held the petitiOn bad on demurrer, and we are asked to determine whether their judgments shall stand. The questions raised by the demurrer as stated by counsel are: 1. Is the petition sufficient to entitle the plaintiff to an injunction? 2. Has the plaintiff an adequate remedy at law?

There is no doubt of the power of a municipal corporation to lay out and establish streets or alleys across railroad tracks and lands, if one condition fixed by the law is not broken. The easement or right of a railroad company acquired by appropriation in the exercise of the right of eminent domain, or its tracks and lands acquired by purchase for railroad purposes, may alike be subjected to the use of a municipal corporation in the form of streets and alleys, if done in accordance with the provisions made by our general assembly on the subject. Appropriations by municipal corporations are not governed or controlled by the general statute for the appropriation of private property by corporations, as found in sections 6414 to 6453, Revised Statutes, inclusive. That there should be no doubt about this, section 6453 expressly provides that "The provisions of this chapter shall not apply to proceedings by state, county, township, district or municipal authorities, to appropriate private property for public uses, or for roads or ditches; * * *." Therefore we may lay aside the rules of procedure provided in those sections and look to the Municipal code as the sole authority for the appropriation of property by municipal corporations.

It begins in section 2232, Revised Statutes, and thereby "Each city and village may appropriate, enter upon and hold real estate within its corPorate limits for the following purposes, but no more shall be taken or appropriated than is reasonably necessary for the purpose to which it is to be applied: 1. For opening, widening straightening and extending...