
    (Butler County, Common Pleas.)
    BELLE S. McMAKEN v. THE C. & H. ELEC. ST. R. R. CO. ALFRED COMPTON v. THE C. & H. ELEC. ST. R. R. CO.
    In an action for an injunction by an abutting property owner against a street railway company, where it is intended by the railway company to construct its railroad upon the side of the traveled parts of the highway without conforming to the grade of the highway, and without filling in or graveling the railway track level with the tops of the rails, and so constructing the railroad in front of plaintiff’s property as to interfere with free access and egress to and from all. parts of it, and which was to be constructed in pursuance of a contract between the street railway company and the turnpike company owning the turnpike, held:
    That the plaintiff was entitled to a perpetual injunction against the construction of such railroad upon the highway; and, held:
    That a street railway means a vehicle that runs at grade with the street, with the top of the rail on a level with the street, that is, filled in between the rails so that the public can use that part of the highway as well as the street railway company. It does not mean two metal rails Bve inches high with nothing between them and the traveled portion of the road, which excludes the public from the use of that portion of the public highway, occupied by the railroad, and held;
    That a turnpike company has no power to enter into a contract with a railroad company to construct upon the turnpike a railroad not built in conformity with the above definition.
   NEILAN, J.

The above cases are before the •court upon motions to dissolve temporary injunctions which were allowed some time ago,restraining defendant,the Cincinnati & Hamilton Electric Street Railroad Company, from constructing its railroad along the west side of the Cincinnati and Hamilton turnpike, in front of the premises of plaintiffs.

The two cases were heard and argued together, and inasmuch as they are, governed by precisely the same principles and substantially the same facts, they will be decided together.

The petition in the case of Bell S. MeMaken against the defendant Street Railroad Company, which may be taken as the standard, embodying substantially the allegations of the petition in the other case, recites:

The organization of the defendant Street Railroad Company, and that it proposes to construct and maintain a railroad track and operate ears thereon in ’front of the real estate of the plaintiff, along the west line of the Cincinnati and Hamilton Turnpike Company’s right of way.

That the turnpike road in front o£ plaintiff’s said property is about fifty feet wide; (the evidence shows it is sixty feet wide; the defendant Street Railway Company claims it is sixty-six feet wide, that the traveled part of the road is about fifty feet wide.)

That if defendant is permitted to construct its said railroad on said part of said turnpike road that it has excavated and filled, that it will run in such close proximity to said property that the in-gross to and egress from plaintiff’s said property which has been platted into lots, streets and alleys, will be materially injured and destroyed.

That plaintiff has platted said property into lots, streets and alleys; that it is immediately adjoining the south corporation line of the city of Hamilton; and it is aileged that is a proper matter to be considered by the court. That the frontage of plaintiff’s said property along said turnpike is about one thous- and feet which has been so platted and laid out into lots, and is very valuable.

That if defendant company is permitted so construct and operate its railroad, the value of said real estate will be very materially depreciated, not only as regards said lots along the turnpike, but the residue of said lots lying westwardly from the same.

That large fills and excavations will be necessary to be made upon plaintiff’s said real estate in order to conform to the grade of said defendant’s tracks; and that the noises and other inconveniences occasioned by the close proximity of defendant’s tracks to said real estate will occasion great and irreparable injury to said property.' .

The question as to the right of this kind of a railway to be built upon a public highway in this state has been passed upon heretofore by this court. After a very careful construction of the question, as careful as the court could give, and very exhaustive argument on the part of able counsel, this court held that the rights of a railroad of this class to be built upon a public highway of the state was constitutional; that the grant of the power by the legislature made in 1894 was constitutional.

But there ara two questions that arise in this case which did not arise in the case referred to, that of August Dietz et al. v. The Cincinnati & Miami Valley Traction Company,! Nisi Prius Reports, 899, namely, the injury to the real estate by preventing the ingress and egress to and from the property of the plaintiff, and the fact that in this case the right to construct and operate the road was con ferred by the Cincinnati & Hamilton Turnpike Co., another corporation.

In the Dietz ease the law itself was attacked, upon the ground that it was un constitutional; that the legislature had no right-to grant the use of public highways for such purpose.

There is one question arises in this case that arose in the Dietz case, and that is, whether the legislature has the right to grant a specific portion of a public highway exclusively for the building and operation of a street railway.

The plaintiff in the Dietz case claimed that the construction of that railway was exclusive of the remainder of the traveling public; that when the ties and rails laid and cars operated thereon, that lt was exclusive of the rights of the pub lie, the public'could not travel over the track.

The court decided from the evidence offered at that time and from some conditions that were attached to the grant of the county commissioners, that that ground was not well taken.

‘The court was assured at that time, and the court believed it, in answer to the claim of the plaintiffs, that the plans of the Railway Compaiy contemplated filling up the space between the rails with gravel, so that the grade of the road would be upon a level with the top of the rail. The court was also assured that it was a part of the plan contemplated and intended to be faithfully carried out, that the portion of the public road between the ceiter of the graveled portion of the road and the railroad should also be filled in so that the whole top of the traveled portion of the road and all the new part on which the street railway was constructed should be on a level, and instead of'being a hinderance to public travel, it would be a great advantage, because it would widen the road.

All the parties understood then,and this court understands now, that that is one of the necessary requisites of a street railway.

Acting upon the faith of that testimony, believing it, the court on that point, in answer to the claim of plaintiff’s counsel, used the following language:

“Since the temporary injunction was allowed no work has been done on that portion of the road from the south corporation line of the village of Trenton to the point where the public highway crosses the C. H. & D. railroad track. In its present unfinished condition, while its cars could possibly bep’un over it, the public could not drive over it; but whan completed as contemplated, and as shown by the finished portions, the entire roadbed can be used as fully as it ever was.”

The court went over that road before it rendered this decision, examined it carefully from Hamilton to the village of Trenton;“and the court went over the same road last week, to examine it again, and there has not been a shovel full of gravel put on that road from the city of Hamilton to the village of Trenton that was not there the day the court went over It before it rendered this decision except that portion which was positively enjoined; there enough gravel has been put to fill up between the ties; the ties are uncovered from the city of Hamilton to the village of Trenton; you can count almost every one of them; and there is a five inch T-rail laid on top of them. The public are as absolutely excluded from the right to travel over that road as if there was a stone wall there.

The reason for making these remarks will be apparent when we come to consider the evidence in the case at bar, because it must be perfectly evident to any person that if there are five inches of solid metal on top of the road, and the ties partially exposed, no vehicle can travel over it, and the exclusion of the general public from that portion of the highway is complete.

In that case, in speaking of whether or not this was a 'street railway, after citing the decisions, or undertaking as far as the court could to decide without the aid of any decision on the subject, because so far as the court knows that was the first decision ever rendered on .the law of 1894, tbe court said:

“Applying these principles to the case at bar, the court is of the opinion that the construction and operation of this street railroad for the transportation of persons and property, do not impose any additional burden on the owner of the fee, and he is not entitled to compensation, except where some special private right is destroyed or impaired.”

The question in this ease, therefore,is: is there any property right destroyed or impaired?

The evidence offered in this case on behalf of defendant, is sufficient for the court to consider.

The court may stop here long enough to say, that in the grant from the county commissioners to the Cincinnati & Miami Valley Traction Company they did embody some conditions which tended to protect the public; but in the contract made between the Cincinnati & Hamilton Turnpike Company and the defendant in this case, the public are not mentioned ; there is not a single instance any place in the contract where the public rights, or the rights of individual abutting property owners are protected, or even mentioned. The only condition in the contract, a copy of which was submitted to and carefully read by the court, is one looking to the protection of the Cincinnati & Hamilton Turnpike Company.

Another remarkable fact in this case is, there is no profile of this road, there are' no written specifications showing how it is to be built — none whatever; and on the trial of the case it developed that one man ■ has the absolute right to say how it shall be built. There is no provision in the contract with the Cincinnati & Hamilton Turnpike Company showing how it shall be built, at least so far as abutting property owners are concerned; they are left exclusively at the mercy of this one man — James Christy.

Without taking the testimony of any other witness, let us see what James Christy says. He testified that he is engaged in the building of electric railways ; that there is no profile for the construction of this road in controversy. Then he was asked how the road is to be constructed, inasmuch as it bad already been stated by counsel, and afterwards stated by the president of the street railroad company, who isa brother of James Christy, that James Christy has exclusive control-as to how this -oad shall be built, and he testified that there will be about four inches of gravel under the ties; that the ties will be about six inches, and the rails about five inches, which makes fifteen inches, all the way through.

Wm. Chyisty, the president of the street railroad company,said the rails would be about four inches, four or five inches.

The court seeing the rails nearly everyday that are being delivered upon the road, the rail being a T-rail, judges they are fully five inches high.

The width of the right of way of the street railroad company is twenty and a half feet, and the sub-grade is nine feet; that is, the ground upon which the four inches of gravel is to be placed before the ties are placed there; the ties are eight feet long; the guage of the road is four feet eight and a half inches, — that is the standard giiage; poles set from the center of the track six and a half feet; the pole line is twenty-four feet from the center of the pike, that is, the outside rail is twenty feet from the center of the pike;'the space between the pike and the outside rail will be filled with gravel to the top of the rail. •

The poles upon which the wire will be strung average about twelve inches in diameter — what the witness, James Christy, calls the face measurement— the face of the pole next the track, will be twenty-four feet from the center of the track; that is, the poles being twelve inches in diameter, and being ninety feet apart, will form a line in front of these premises of the plantifls within less than two feet, according to the present line of the fence, of the fence line of these plaintiffs’ properties.

At the request of counsel upon both sides, tne court viewed the premises.

Sighting by the poles as already, erected by the defendant at the south end of the McMaken tract, the poles when set,if mtinued in that line, will be almost Where the present line of the fence is.

This proposed railway, it is said, will be run upon a grade substantially with the pike. The court is at a loss to know what that “substantially” means. Assuming it is to be constructed as it now has the appearance, it will have no more connection with the turnpike than the C. H. & D. railroad track has — not a particle.

The question is, under such circumstances, will that kind of a road, built in that way,abutting against these plaintiffs’ properties, affect the value of them?

Now comes in the experience of the court with regard to that other road, and it will be seen why the court referred to it.

The only- assurance that any-body has here as to how the road will be built, is the word of James Christy.

There is about thirty feet in width of the traveled portion, what is called the macadamized portion of the turnpike. James Christy says between that and the outer rail, that is the rail next to the graveled portion, will be filled in with gravel.

That is what they told the court last year — that it would be filled with gravel, and. there has never been a shovel full’ of gravel pnt on it.

Suppose this road oe built in the same way — and the court has no assurance that it will not be. The company has given no assurance, nó guaranty of any kind, that it will be built otherwise. The experience of the court is with regard to human nature, that human nature is very selfish, and after they once get the track there, they do not care whether the public can travel over it or not.

There would be five inches of rail for any person living on the McMaken ground to travel over if they wanted to get in or out of the property. Will anybody pretend to say that would not be an injury to the property?

The same may be said with regard to the Coinpton property. Mr. Compton testified that if the road is constructed as contemplated, that in order to get coal to his premises it would have to be dumped in the pike and then wheeled into his premises. If the road is net constructed there, he can drive right up to his house.

It will be impossible for a person even to walk between the line of this proposed railway and the property of Mrs. Mc-Maken if the road is built, much less to drive there.

If Mrs. McMaken desired to put this property of hers on the market, if she offered any inducement to persons to buy her lots as at present laid out there, it would be necessary to have a road between this road and her property; she could not sell it otherwise.

There is at present but one entrance to her property, but a party owning real estate has a right to enter it wherever he pleases; he is not to be confined to one entrance, and particularly where he has laid it out into lots, of thirty or forty feet, or whatever the size may be, he has a right to unobstructed ingress and egress to and from any of his lots.

There is even no provision that this defendant street railroad company should put boards, or flagging, or do 'anything to make crossings.

The county commissioners last year, when they granted the right of way to the Cincinnati & Miami Valley Traction Company, required that wherever there was an entrance to premises the railroad company should make a good crossing and keep it up.

Here is absolutely no condition so far as the private .property owner is concerned; he is left to take care of himself.

It is a little bit peculiar that the turnpike company should take $15,000 — (for that is what it gets), for allowing this defendant street railroad company to build its track in such a way as to injure the property rights of individuals.

If this railroad company, and all these railroad companies, claim the exemptions awarded to street railways, they must accept the conditions.

The statute requires conditions. Tho statute requires, in substance, that city councils and county commissioners which have allowed the ‘construction of a street railroad shall impose conditions. It is true it does not say what the conditions are, it would be impossible for the legislature to prescribe them.

Conditions for the benefit of whom? — Hot for the benefit of the county commissioners, not for the benefit of the city council — out for the benefit of the public; that is who tho conditions are imposed for. It is true there is nothing said about the rights of a private turnpike company, but it is fair to say that the same law, in principle. at least, should prevail, and that there should be some conditions to protect the public.

In this contract there is absolutely none whatever. As the court has stated, the public is not referred to.

This turnpiue company gets $15,000 for permitting this street railroad company to lay its tracks along one of the summer roads.

The evidence shows the public used it as a road in the summer time. Every person who has ever traveled this turnpike between Hamilton and Symmes Corner knows that the public travel on both sides of the center of the road in the summer time in good weather, as it is easier for the horses and vehicles.

It may be extremely questionable whether the Cincinnati & Hamilton Turnpike Company has the right to allow that privilege or not, but the court declines to decide that question at this time.

It may be extremely questionable whether the legislature even has the right to ‘grant thó exclusive right to a street railroad company to occupy any portion of a public highway.

The supreme court of Ohio, in 18 Ohio St., — State, ex rel. v. The Cincinnati Gas-Light & Coke Company, decided that it was not within the power of council to grant the exclusive right to any company or to anybody.

If the effect of the grant is to exclude the public from the use of the highway, it is extremely questionable whether even the legislature can make the grant. It is sufficient to say, up to the present time it has not attempted to do so.

These street railroads built through the country are new; it is only within the last year or two that they have been constructed, — within the last four years that the law in regard to them was passed.

Street railroads in cities’are built in the middle of the street. They are allowed to be built there on the hypothesis that the vehicles of street railroads have just as good right to the public streets as any other vehicle, but no better. The only distinctive advantage that the vehicle of a street railroad haskiver other vehicles is, that owing to the manner in which it must be operated, namely, on metal rails, that it is confined to á certain fixed place upon which it runs its cars, and that while the ear is passing it has the right of way, because the other vehicles can go to the right or left. That is the only advantage it has. After the car has passed the other vehicles have the right to go in that place, and no exclusive right is or can be granted to the street railroad.

Tt is different here. As the court has ■ observed, if they claim the exemptions of a. street railway, they must be subject to •the same conditions.

A street railway means a vehicle that auras at grade with the street; that is, with the top of the rails on a level with the top of the street that it is filled in between the rails so the public can use it as well as the street railway company. "That is the meaning of a street railway, and not two metal rails, five inches high, with nothing between them, and nothing •between them and the traveled portion ©f the road, which practically excludes —in fact absolutely excludes, the public from 'the use of that portion of the public highway.

The true way to build this road upon that highway is to build it in the middle of the road; if it is a street railway, that is where it should be built, as was decided "by the supreme court, in 14 Ohio St., to which decision the court will presently "refer. It has no right to build on one side of the street so as to impair the rights of the owners of property to get to and from their property. The easement to and from a party’s premises isas much property as the property itself.

That has been decided by our supreme court in 7 Ohio St., and in 38 Ohio St.

It is just as much property, and if it is taken away or impaired", the party has a right of action. And he is not required to sue in damages, where it is continuous; he has a right of injunction to stop +he work until he has been paid.

Another injustice that could be perpetrated by this contract upon the people on the west; side of the road, and that might be perpetrated upon the property owners upon any road where a railroad is sought to be built as this is, is that some arrangement could be -made with the property owners on one side of the road for the right of way for the road to be constructed upon the other side, for the law requires that the consent of the owners of so much of the feet front must be obtained to the building of any of these roads before they can be built; how easy it would be to arrauge with the property owners on one side of the road to put the railroad on the other side of the road, without the consent of the owner of a foot of property on the side of “the road on which the railroad was to be constructed. All the burden could be imposed on the property owners on one side of the highway, while those on the other side of the highway with all the benefits being equal with those on the' one side, would not have any of the disadvantages. It does noi look right, it does not look reasonable, it does not look just, to impose upon one side all the bur-dens, and give to the other side equal advantages.

The case in 14 Ohio St., to which the court referred, is the celebrated case of the Cincinnati & Spring Grove Avenue Street Railway Co. v. The Incorporated Village of Cumminsville, et al., which is a standard case in Ohio. It is a case which will bear studying, because it states every principle involved here.

There were four plaintiffs in that case. The trustees of the village of Cumminsville, and three private individuals, were parties plaintifE, and asked an injunction, which was allowed by the court of common pleas, against the building of a street railway in the village of Cumminsville, along in the early ’60’s.

The claim of the trustees of the village was they had never consented to the building of that road; the claim of the private lot owners was this road was built within three feet of the curb line, tha* it prevented them from getting to their property or away from it.

The court of common pleas allowed an injunction for all the parties. One of them had had an injunction before, and the railroad company had lost its right so far as he was concerned, but so far as two of the private parties were concerned the case was taken to the supreme court.

A finding of facts, separate from the finding of law, was found by the court, and upon the finding of facts the supreme court acted.

The twelfth finding- of fact was as follows:

“12. That when the restraining order allowed in this case was served, the track, as far as laid, beyond Kirby street in front of Dormann’s premises, and the grading, for track, as far as the same was done, which laying and grading extended about one-third of the distance between Kirby street and Knowlton’s corner, was laid so that the top of the rail was even with the grade of the street, and as located, and as intended to be so located that the westerly rail of the track at and near Kirby street was about three feet from the line of the sidewalk and gradually approached the line of the sidewalk so as to be a little more than two feet from the same; that the original plan of the company was to lay the track upon the margin of the sidewalk upon an even grade therewith with gutters or waterways on the outside and between the track and the roadway for vehicles, except between Kirby street and Knowlton’s corner, between which points the same relative distance from the northwesterly line of the street, wi-thout considerably lessening the radius of the curves, could not be carried out, and that except between these points the general plan was to be carried out beyond Knowlton’s corner. 3 ’

That was the grievance complained of by the two private lot owners, that this railroad track was to belaid within three feet of the curb line; that it prevented them from having any other vehicle come there; that they could not hitch a horse there.

•Judge Ranney, in- the decision of the case, uses the following language:

“But while our decisions have been thus liberal,in allowing to the general assembly the largest discretion in the management and control of easements acquired for public highways, we have been very careful to say, in' the case to which reference has been made, as well as upon other occasions, that they could not be diverted to other purposes than those for which they were acquired; nor enlarged so as to accumulate additional burdens upon the land, or destroy or impair the incidental rights of the owner, appurtenant to his lands located upon the street or highway. The distinction lies between those things which fairly belong to the grant, and those which are reserved to the owner, or by law attach as incidents to his property. For this purpose, there is no occasion to distinguish between lands acquired for ordinary highways, leaving the fee in the owner, and lands dedicated for streets in towns, where the fee vests in the municipal corporation, in trust to answer the purposes of the use. In either case, the interest acquired aud used by the public at large, is an easement of a definite character,and held for the attainment of known objects; and in either case, distinct from the right of the public to use the street, is the right and interest of the owners of lots adjacent.”

The court in this case quotes from the decision in the case of Crawford v. The Village of Delaware, 7 Ohio St., p. 459, in which the court say:

. “The latter (lot owners), have a peculiar interest in the street, which neither the local nor the general public can pretend to claim ; a private fight of the nature of an incorporeal hereditament, legally attached to their contiguous grounds and the erections thereon; an incidental title to certain facilities and franchises, assured to them by contracts and by law, and without which their property would be comparatively of little value. -This easement, appendant to the lots, unlike any right of one lot owner in the lot of a.nother, is as much property as the lot itself. ’

In discussing further what is necessary to be done, Judge Ranney uses this language : *

“If, in the progress of improvement, the interests of tho public require theirs to be enlarged, and his diminished, it can only be done upon making him compensation to the extent of his injury.”

The thirteenth finding of fact in that case is _a,s follows:

“13. That the railway track laid upon the side of the street, as proposed, will be an obstruction to the convenient access to the houses and other improvements on the northwestern side of the highway, and would be more of an obstruction thereto than it would be if laid in the center of the highway ;■ but that, taking into consideration all interests, namely, the adjoining owners of lots, the railway company and the general traveling public, tne location of the track as constructed and proposed to be constructed, is as little injurious as it vtould be in any other part of the highway.”

The court, after having discussed the-matter at great length, say:

“An application of these principles to the case under consideration, leaves n<J doubt as to how it must be decided. Allowing the turnpike company to have succeeded to all the rights and interests-of the public in the country road — ”

(And this court thinks that is the case in the ease at bar, the county commissioners have no control over this at all.)

“And the railroad company to have obtained a plenary grant from the turnpike company, yet, it is plain, that the former could make no encroachment upon these lot owners, which the latter could not.”

(In other words, the railroad company could not do any more than the turnpike company did, or had the right to do.)

“And it does not admit of a doubt, that after the turnpike company had established its grad’e, and improved its road, nad the lot owners had conformed their improvements to its actual condition, that it could legally make no change, which destroyed or impaired access to-their buildings, without making full compensation for the injury. We' see nothing in the street railroad act which induces the belief that the legislature intended to authorize, either companies or public authorities, to grant to railway companies anything more than an interest in the publi.c easement; nor do we see any reason to doubt that such a location may ordinarily be made, as to bring the necessary structures for the use of these companies within that interest, and without any invasion of private rights. But ii it were otherwise, and it were manifest that the legislature Intended to allow these companies to-occupy and impair the easements attached to improved lots, and that the necessary structures could not otherwise he constructed or used, we should still be of rhe opinion that it could not be-done without compensation. It is found as a fact, that the proposed construction of this railway track, will be an obstruction to the convenient access to the-houses and other improvements of the-lot owner: ‘and more of an obstruction thereto than it would be if laid in the-center of the highway.’ ”

That the court thinks to be tr.ue in this case also. There would be no. objection to the building of this railroad if it was built in the center of the road, where it ought to be built.

It is true, it would cost a great deal, more to build it. That is all that can be-said in favor of putting in on'one side. There it would be no impediment to anybody; that is where it ought to go.

The court continues.

“It is true, it is added, that taking into consideration the interests of the company, and the general traveling public, as well as those of the lot owners, the location ‘is as little injurious as it would be i-n any other part of the highway.’ ”

(That is a quotation from the thirteenth finding of facts.)

“This is the common case, when private property is taken for public uses. Reduced into plain English, it simply amounts to this, that the company and the’ public will gain as much as the lot owners lose. The difficulty of giving this any effect, in the present case, arises from the fact, that the justice of the constitution has provided that what the one thus gains, and the other loses, shall be paid for, before the property is taken or invaded.”

It follows, therefore, from what has been said, that this turnpike company could not grant any more than it had, and it had no power to put any impediment in that highway that would injure abutting property owners, and the railroad company can do no more than the turnpike company could.

The court has been cited to a large number of authorities, and it has conscientiously and carefully examined every one of them, has read every one of them from beginning to end. There are reasons which may not be apparent to every one why the court should have been careful in its decision in this case.

The court has been cited to 2 Ohio St., p. 419. where it is held that a supervisor of highways has no jurisdiction or power over turnpikes, constructed by incorporated companies, where authorized by the legislature, and the work has been accepted by the proper authorities.

The evidence shows this was once a public highway, a-county road, and afterwards, by operation of law, was converted into this turnpike.

It is sufficient to say, it being converted into a turnpike, with authority to take toll, the county commissioners lost all control over it.

The court has heretofore referred to the 7 Ohio St. case.

The 38 Ohio St.,p 419, was referred to by counsel; that confirms the doctrine laid down in 7 Ohio St., 1, that the easement is as much property as the property itself, and where it is sought to b« taken, it can only be taken by paying for it.

The ease cited in 48 Ohio St., p. 429, is a case between the telephone company in Cincinnati and a street railroad company. That case decides no principle that applies to this case at all except it decides that no party has the exclusive right to any street.

That confirms the doctrine decided in the 18 Ohio St., the celebrated gas case.

The case of Railroad Company v. Wilson, 3 C. C. Rep., p. 425, decides that the change of motive power from horses to that of electricity, with poles and wires, was legal.

The court in the case in 5 C. C., p. 124, —Simmons v. City of Toledo, et al., hold, that council has á right to grant a franchise for an electric si.reet railway, and that a citizen and tax payer, not the owner of land or lots abutting upon any street along- the proposed route, has no right to maintain an action for injunction under the provisions of sec. 1777. That is all that case decided.

The case of Sells v. Columbus Street Railway Co., 28 Bull., p. 172, referred to by counsel, holds:

“1. A street railway, whether operated by electricity or animal power, if duly authorized by the legal authorities, is not per se an additional servitude on the soil of a public street; and the proposed erection and use of poles and wires, which are accessories of the trolley system, does rot entitle an abutting- lot' owner to an injunction.
“2. The construction of a double track street railway m the middle of a street, so located that the space between the exterior rails and the sidewalk is not sufficient to permit wagons with teams attached to stand transversely between the curb lines and passing cars, is not per se a perversion of the street to private uses, or an unlawful infringement of street easements appurtenant to abutting' property.5 ’

It was contended in that case that the owupr of abutting property had the right to have- sufficient ground between the street railway and the curb line for a vehicle with horses to stand at right angles to both.

The court held that was not per sesuch perversion of a street for private-uses that a party could enjoin them. That is all that was decided in that case.

There was another point raised there-which does not apply to this case, — the third sub-division of the syllabus, which is as follows:

“3. An aoutter has no such proprietary interest in the maintenance of a public market in a street in front of his property as will entitle him to enjoin the con-struction and operation óf a duly authorized street railway through the market space, on the ground that by interfering with the market, it will diminish the Volume of business transacted on the street, and thereby depreciate the value of his property.”

In the case of Clement v. City of Cincinnati et al., 16 Bull., p. 355. it is held: “That the change of power from horses to grip or cable, was authorized, and that the modification of the original grant whereby a more rapid transportation was obtained, involving greater expense, was not void, and it authorized a higher rate of fare; and that the change so made without advertising as provided by sec. 5502, Revised Statutes was not in violation of that provision.

The court in the case of Pelten et al. v. Cleveland Ry. Co., 22 Bull., p. 67, held:

“The consent of abutting lot owners upon a streot occupied by a street rail-Toad is not required, and is not a condition precedent to the right of the council -to grant a renewal of the franchise of such street railroad company, under sec. 2501 and 2502 of the Revised Statutes.
“The change in the motive power from horses to that of electricity, ’does not -constitute a new and additional burden upon the street, entitling abutting lot-owners to compensation before such change is made; orto an injunction to prevent such change.”

The court has been cited to other decisions, but it thicks the case in the 11 Ohio St:, referred to, is decisive of this -case; the court’s decision was upon the particular ground which is involved in this case. The court say:

“Upon the whole case, our opinion is, that ths court below erred in holding the road district entitled to maintain an action, and in making the further extension of the railway dependent upon the con sent of the trustees thereof.'”

The trustees, it appears, were willing to consent to the construction if the street railway company would build its traéis in the center of the street, but the street railway company would not do that, and the trustees would not otherwise consent.

The supreme court held, under the peculiar phraseology of the law under which the board of trustees was created, that their consent was unnecessary; and it reversed the court of common pleas upon that point.

The court further say:

“And proceeding to render such judgment, upon the facts as found, as, in our opinion, the law requires, we shall order the petition as to the road district to stand dismissed with costs; and in behalf of the remaining plaintiffs, Eppel and Russell, we shall order the railway company to stand enjoined from the further extension of their track, upon the line proposed, until they have legally acquired the right to do so, by obtaining the consent of these lot owners or otherwise acquiring their interests in the highway.”

The judgment of the court in the cases •at bar is, that the injunction in each case 'be made perpetual.

(Note. — This case came afterwards before the circuit court, where the following ■entry was made) :

“Said track shall be so constructed by •filling the space between the rails and each side thereof, so far as necessary with gravel, :so that said track shall not substantially interfere with the use of said turnpike road for travel thereon, but shall permit travel by foot passengers, horses and vehicles and like purposes in front of plaintiff’s property, ■and without substantial impairment of such travel. Said railroad shall also be so constructed as not to injuriously interfere with the present system of drainage in front of plaintiff’s property.”

. The court continued the cause until the railroad shall be constructed, and reserved the full right and authority to itself to modify the order or judgment.  