Pennsylvania R. Co. v. City of Girard

• Decision Date: 11 February 1954
• Docket Number: No. 11792.,11792.
• Citation: 210 F.2d 437
• Parties: PENNSYLVANIA R. CO. v. CITY OF GIRARD.
• Court: U.S. Court of Appeals — Sixth Circuit

210 F.2d 437 (1954)

PENNSYLVANIA R. CO. v. CITY OF GIRARD.

No. 11792.

United States Court of Appeals Sixth Circuit.

February 11, 1954.

Norman A. Emery, Youngstown, Ohio (Norman A. Emery, Jay C. Brownlee, Harrington, Huxley & Smith, Youngstown Ohio, on the brief), for appellant.

Reed S. Battin, Warren, Ohio (Reed S. Battin, Warren, Ohio, on the brief), for appellee.

Before SIMONS, Chief Judge, and ALLEN and MILLER, Circuit Judges.

ALLEN, Circuit Judge.

This case arises out of an action filed in the state court by the city of Girard, Ohio, seeking damages from appellant railroad for the cost of removal of ashes and debris claimed to have been accumulated upon Byers Avenue, a street in the city of Girard, due to the negligence of the appellant in the operation and repair of its right of way. The petition prayed for a permanent injunction and also for the construction of a retaining wall to prevent the alleged nuisance.

Appellant filed a general denial and a cross-petition praying that it be permitted to vacate an underpass at the intersection of Mill Street with its right of way. The District Court rendered judgment for the city, dismissing the amended cross-petition, awarding damages for $1200, permanently enjoining the railroad from allowing refuse and debris to fall, be dumped, or washed from the right of way on Byers Avenue, and ordering the railroad to erect some kind of retaining wall or buttressing for the portion of the right of way that would adequately serve to prevent the recurrence of future damage. The court denied vacation of the underpass at Mill Street upon the ground that there had been a common-law dedication of the crossing and underpass to public use. It also held that the vacation of the Mill Street underpass was not shown to conduce to the general interests of the city of Girard, as required by Section 3730, Ohio General Code, R.C. § 723.09.

The railroad contends that the judgment must be reversed (1) because there was no evidence of dedication or intention to dedicate the underpass nor of acceptance on the part of the city, and (2) because there is no evidence of public necessity for keeping the Mill Street underpass open.

A preliminary question of jurisdiction raised by this court of its own motion will be disposed of first. The pecuniary damages claimed in the petition are $1,000.00, a sum short of the jurisdictional amount. The court found that the nuisance would continue unless a permanent injunction was issued. Jurisdiction under Title 28, Section 1331, depends "not alone upon the pecuniary damage resulting from the acts complained of, but also upon the value of the rights which plaintiff seeks to have protected." Wisconsin Electric Co. v. Dumore Co., 6 Cir., 35 F.2d 555, 556. Since the suit is for injunction as well as for damages, the test is the value of the controversy. Glenwood Light & Water Co. v. Mutual Light, Heat & Power Co., 239 U.S. 121, 125, 36 S.Ct. 30, 60 L.Ed. 174. This is measurable by the expense to which the plaintiff will reasonably be put through the years and by the value of the right sought to be protected. 2 Cyclopedia of Federal Procedure, § 3.93, page 324. The finding of the District Court that unless appellant is restrained appellee will suffer irreparable injury is amply sustained by the evidence. We conclude that the District Court had jurisdiction of the case.

With reference to the court's findings and conclusions on the question of nuisance, appellant contended in the trial that under Section 3714, Ohio General Code, R.C. § 723.01, the duty of keeping the public highways and streets "open, in repair, and free from nuisance" rests entirely upon the council of the city and that the railroad cannot be held liable for the deposit of debris upon the public streets. This statutory responsibility the city recognized when it cleared Byers Street of the ashes, etc., accumulated thereon by the negligence of the defendant. However, it is established law in Ohio that a city may enjoin maintenance of a nuisance upon public highways. City of Mt. Vernon v. Berman & Reed, 100 Ohio St. 1, 125 N.E. 116. Cf. Louisville & N. R. Co. v. City of Cincinnati, 76 Ohio St. 481, 81 N.E. 983. The city's obligation does not deprive it of its right of action against a third party which maintains a nuisance in the streets. The judgment upon the issues raised by the petition is amply sustained by the evidence and is in accordance with law.

Appellant's principal attack is directed to the court's refusal to vacate the underpass at Mill Street. It contends that it owns the underpass, that a new structure costing $198,300 will be necessary if the underpass is not vacated, that the public has no right in the underpass, and that the District Court made clearly erroneous findings and conclusions as a basis for its judgment dismissing the cross-petition.

In appellant's original cross-petition, of which we take judicial notice, De Bearn v. Safe Deposit & Trust Co. of Baltimore, 233 U.S. 24, 34 S.Ct. 584, 58 L.Ed. 833, the expense of repairing the underpass was set at $35,000 or more instead of the $198,300 now claimed to be required. We infer that the railroad has considered more than one method of repairing the underpass, one much more expensive than the other. However, since the majority of the court thinks the case was rightly decided, we do not discuss the expense of a new structure.

The city was lax in presenting evidence which might have shed light upon the intricate questions of fact presented and the record as to the negotiations, contracts, and ordinances which form the background of this controversy is in considerable confusion. However, the following facts are established:

December 10, 1919, an ordinance was passed by the city of Girard granting the Brier Hill Steel Company, its successors, lessees and assigns, a right to construct a railroad crossing across West Liberty Street in the village of Girard, providing that the council should vacate all grade crossings on the east side of the Mahoning River, and authorizing the elevation of the Pennsylvania Railroad tracks on the east side of the Mahoning River. In the preamble to the resolution of the County Commissioners, dated July 23, 1923, with respect to the elimination of grade crossings, the railroad is called a lessee. It is nowhere shown that it owns the land on which the underpass was constructed, nor just what it had leased, whether tracks, personal property, or an interest in land. The tracks of the railroad run on the east side of the Mahoning River in a general northerly and southerly direction parallel to Byers Avenue, formerly known as Water Street. At the southerly end of Byers Avenue and at right angles to it is Walnut Street, north of that is an alley, and north of the alley is Mill Street. In accordance with the above ordinance the railroad elevated its tracks and constructed underpasses, both at Mill Street and Walnut Street, connecting with Byers Avenue, which is the principal thoroughfare from the lowlying district along the Mahoning River called "The Flats" to the central part of the city of Girard. A railroad employee from the engineering department, thoroughly familiar with this area, having visited it at least once a week for twelve years, states in effect that Byers Avenue is immediately adjacent to the right-of-way line of the Pennsylvania Railroad Company, that the curb on Byers Avenue is against the railroad right of way and also against the embankment. This evidence is uncontradicted.

The ordinance specifically provided for construction of a subway at Walnut Street and also for the completion of "the structure to separate grades at Mill Street." A city zoning map made in 1931 does not show Mill Street or Walnut Street connecting with Byers Avenue. However, a railroad map dated 1918 indicates Mill Street as passing partly across the right of way of the railroad. Several witnesses, one of whom was born on Mill Street, testified that the general public had for many years used a crossing at the railroad right of way, which was not then elevated, from Byers Avenue to Mill Street. Two witnesses of middle age had used this crossing going to and from school. One of them said that horses and buggies had used the crossing for over forty years. The clerk of the Girard City Council stated: "we used to cross over to Mill Street to go over and play ball." He had used the crossing since 1907 and said that there was no difference then between the crossings at Walnut Street and Mill Street.

This uncontested oral evidence is corroborated by admissions against interest made in appellant's original cross-petition. It said "that the tracks of its railroad parallel with Byers Avenue are elevated above the street level, and that underneath said tracks and intersecting with Byers Avenue is a street known as Mill Street, and that this Defendant cannot, so long as said Mill Street is kept open for travel by a subway beneath its tracks, build or erect any retaining wall at a reasonable expense * * *." The cross-petition also stated that "said Mill Street extends under its right-of-way and railroad tracks by a concrete subway * * *." It later states that the appellant "filed a petition with the Council of the CITY OF GIRARD requesting that the part of Mill Street which is underneath its railroad tracks be closed for public travel * * *." These statements recognize the existence of a public way coincident with the underpass. They were admitted by the city in its answer and reply and the existence of Mill Street as a public highway stood admitted on the pleadings until the...