Perkins v. Village of Quaker City

• Decision Date: 04 April 1956
• Docket Number: No. 34464,34464
• Parties: , 59 O.O. 151 PERKINS, Appellant, v. VILLAGE OF QUAKER CITY et al., Appellees.
• Court: Ohio Supreme Court

Page 120

165 Ohio St. 120

133 N.E.2d 595, 59 O.O. 151

PERKINS, Appellant, v. VILLAGE OF QUAKER CITY et al., Appellees.

No. 34464.

Supreme Court of Ohio.

April 4, 1956.

Syllabus by the Court

Injunction is an extraordinary remedy equitable in nature, and its issuance may not be demanded as a matter of strict right; the allowance of an injunction rests in the sound discretion of the court and depends on the facts and circumstances surrounding the particular case; and, where, in an action for an injunction, conflicting claims are advanced by the parties and the merits of one of such claims over the other are doubtful, an injunction may be refused especially where those claims may be asserted and determined in another and different form of action.

The present cause originated in the Court of Common Pleas of Guernsey County. It is an action for injunction brought by Dean Perkins against the incorporated village of Quaker City and its marshal to prevent the latter from interfering with his motor truck operations over the streets of such village. The injunction was denied by the trial court and the petition dismissed.

An appeal on questions of law was taken to the Court of Appeals, where the judgment below was affirmed.

The cause is now in this court for a decision on its merits by reason of the allowance of a motion to require the Court of Appeals to certify its record.

Frank C. Leyshon, Cambridge, for appellant.

John S. Moorehead, Cambridge, for appellees.

ZIMMERMAN, Judge.

In 1952, the council of the village of Quaker City enacted ordinance No. 302 to regulate truck traffic and truck weights in the village. Among other things, such ordinance provides that all truck traffic, regardless of weight, is to follow state routes only; that trucks of a net weight of over 10,000 pounds may use streets and alleys other than state routes for local delivery, only by obtaining the permission of the mayor or the marshal; and that there shall be a net weight load limit of 10,000 pounds per vehicle using the streets and alleys of the village. Penalties by way of fines are provided for violations of the ordinance.

Plaintiff is engaged in the business of trucking, as a licensed contract carrier, and has a contract to haul coal for a mining company from its pits to the tipple where the coal is unloaded.

In his petition, plaintiff alleges that in his trucking operations it is necessary to follow certain state and county routes through the defendant village, namely, state routes Nos. 265 and 513 and county route No. 7; that the loads he carries are within the limits permitted by Section 5577.04, Revised Code, but in excess of the limits prescribed by ordinance No. 302; that he has been warned by the defendants that he will be arrested if he hauls loads of coal over the streets of the village, weighing in excess of the limits provided by the ordinance; that there is no way of hauling coal between the pits and the tipple other than by traversing the streets of the village unless he proceeds over certain county and state routes, which would necessitate many miles of extra operation and would add greatly to the costs of transportation.

Plaintiff alleges further that the described acts of the defendants are causing him great and irreparable harm and are violative of the rights accorded him by statute. He therefore prays that ordinance No. 302 be declared null and void as being in conflict with statutory enactments, and that defendants be enjoined from interfering with plaintiff's free use of the village streets.

At the hearing before the trial court, it was developed that county route No. 7 runs from a northeasterly direction into and through a part of the village; that state route No. 513 traverses the village in a northerly and southerly direction; that state route No. 265 traverses the village in an easterly and westerly direction; and that plaintiff has at all times had the full and unrestricted use of the state routes which pass into and through the village.

It appears that plaintiff operates 16 motor trucks, 8 of which are 3-axle 10-wheel tandem-driven dump trucks, 8 feet wide and weighing 13,000 pounds unloaded and carrying loads of 24,000 pounds; and that 8 of them are single-axle dump trucks, 7 1/2 to 8 feet wide and weighing 9,000 pounds unloaded and carrying average loads of 17,000 pounds.

The evidence shows further that plaintiff's prospective use of county route No. 7 in the village would be a convenience to him by way of shortening the distance of his hauls, but that its use is not a necessity; and that if plaintiff were to traverse such route, which passes through a residential district, there would be approximately 160 trips daily by loaded trucks and the same number of trips per day by unloaded trucks.

It appears further that county route No. 7, designated Main Street where it passes through the village, is 18 feet wide and is paved with concrete. At one place underneath it lies an eight-inch cast iron pipe which carries the principal water supply of the village from a 100,000-gallon reservoir located north of the village. Basil Foraker, mayor of the village of Quaker City, gave the following uncontradicted testimony:

'Q. Are you familiar with state routes 265 and 513 as they proceed through the village of Quaker City? A. I am.

'Q. Do you have knowledge as to how long trucks connected with the Virginia Mining Company have been making use of those routes. A. Ever since they started their mining operations up there. I believe that is a matter of record.

'Q. Approximately how long? A. Four or five years.

'Q. Are you familiar with the maintenance and repair that has been required on those state routes within the village during the time you have been officially connected with the village of Quaker City? A. I am.

'Q. What means of repair and maintenance have been necessary during that time? A. Well, if it please the court, in my own way I will attempt to relate some of the things that we have had to do. It seems as though these big trucks shove this street right down and part of the curb came up on the western end of Main Street, and it has disrupted our storm sewer--has shoved it clear out on the north side of the road, just about opposite the H. H. Floyd property. Then those heavy trucks have caused the retaining wall opposite the Friends Cemetery to collapse and fall in, and great sections of the road have been caused to be broken off and to settle and pushed out. We have had to fill those up and attempt to keep them in shape, and last fall at the expense of the village we tarred and sanded all those cracks we could, but it don't seem to have been to much advantage, they just push open and water gets down into the place. With the partial aid of the state we had portions of it black topped, which these trucks have been breaking up, it is self-evident up there, and started holes in that.

'Q. Calling your attention to what would be known as West Main Street, state route 265 going out toward Salesville, do you know the width of the paved portion of that strip? * * * A. As near as I could ascertain, it is approximately seventeen (17) feet.

'Q. Do you have any knowledge of the trucks of the plaintiff using that particular road--have you ever seen his trucks on that road? A. I have.

'Q. Have you ever noticed two of his trucks...