
    The Iron Railroad Company v. The City of Ironton.
    1. Under the statute authorizing the appropriation of private property for a public wharf by a municipal corporation, the discretion of determining the quantity of ground required for such purpose is vested in the corporation ; and where, in making the appropriation, this discretion has been exercised by the municipal authorities in good faith, their action is final.
    2. A railroad company organized under and made subject to the provisions of the “act regulating railroad companies,” of J?eb. 11, 1848, is not authorized to condemn private property to its exclusive use solely for the purposes of a wharf.
    B. The power given to municipal corporations to condemn private property for a public wharf is an express power; and the right of a railroad company to hold property exempt from the exercise of this power cannot be extended, by construction, to lands held by the company for uses and purposes for which it is not, by law, authorized to condemn private property.
    Error to the- court of common pleas of Lawrence county. Eeserved in the district court.
    On the 15th of August, 1866, the Iron Eailroad Company filed its petition against the city of Ironton, in the court of common pleas of Lawrence county, stating in substance:
    That the plaintiff is an incorporated company under the act of March 7,1849, of the general assembly of Ohio, and by that act was authorized” to construct a railroad from the Ohio river, in Upper township, Lawrence county, Ohio, to the Bouth line of Jackson county, etc.; that, in obedience to the powers and authority thus conferred the plaintiff constructed a road from the Ohio river, in Upper township, thirteen miles towards the Jackson county line; and that the terminus of the road is at the Ohio river, between Railroad and Centre streets, in the city of Ironton, in Upper township. That the road is daily operated with locomotives, freight and passenger cars; that for the purpose of enabling the plaintiff properly and successfully to do its business of transporting freight and passengers, the plaintiff purchased of the Ohio Iron and .Coal Company, the owner in fee of the same, a tract of land known as lots numbered 1920, and 21, and part lots number 22, 23, and 24, in the city of Ironton, and the space of ground lying between Centre and Railroad streets, and front of Front street in said city, and extending to and into the Ohio river, on which lots the plaintiff has erected a suitable depot for the reception and shipment of freight and passengers, and machine shops for the making and repair of the machinery etc., of said railroad ; and has, furthermore, graded the space aforesaid, front of Front street, extending to the Ohio river, as and for a wharf upon which to receive and discharge freight, passengers, machinery, rails, crossties, etc., and such other things as are necessarily used in and appurtenant to a railroad. That the use of said wharf is necessary to and for the uses and purposes of said railroad, and was purchased for the plaintiff as aforesaid, and for no other purpose. That the plaintiff expended in grading said wharf about thirty-two hundred dollars, and that the wharf is worth, as at present graded, five thousand dollars. That the defendant, the city of Ironton, instituted proceedings in the court of common pleas of Lawrence county to condemn said property for wharf purposes, under the law in such case made and provided, and such proceedings were had, that, at the May term, 1866, of that court, a jury, being impanelléd for that purpose, found the value of said property to be eight hundred and-■ dollars, which, plaintiff avers, was far below the real value of the same; that under said award the city of Ironton are preparing and threatening totake.possession of the property, and to entirely deprive the plaintiff of the use and occupancy of the same for the uses and purposes aforesaid. That, in said action of the city to condemn the property, the plaintiff had no opportunity to set up the rights of the plaintiff in and to the property, and that the plaintiff’s rights and privileges in and to the property are, by law, made prior and paramount to the rights of .the defendant to condemn the same. That the plaintiff is entitled to and ought to hold the same, notwithstanding the general powers given to cities to condemn prop erty for wharf purposes. That the use and occupancy of said property is not necessary to the defendant for wharf purposes, because the defendant has condemned wharf property belonging to the Ohio Iron and Goal Company, more than the finances of the city will reasonably permit to be improved, for years to come, and amply sufficient to accommodate the wants of the city, being nearly as much as is held by the city of Cincinnati, as plaintiff is informed and believes. That if the defendant is permitted to proceed to take possession of said property and dispossess the plaintiff, and thereby deprive the plaintiff of the use, occupancy, and enjoyment of the same, the defendant will do the plaintiff irreparable injury, will take away from the plaintiff rights and franchises guaranteed to the plaintiff by law, and prevent the plaintiff from the full exercise of the privileges conferred upon the plaintiff by the act of the general assembly aforesaid, and will wholly deprive plaintiff of the landing and wharf upon the Ohio river at the terminus of plaintiff’s railroad, which landing and wharf are necessary and essential to the plaintiff in the legitimate and proper use of plaintiff’s railroad. The plaintiff therefore prays that an injunction may issue restraining the defendant from dispossessing the plaintiff of said real estate, from taking possession of the same, from exercising any acts of ownership over the same, or in any wise interfering with the rights, privileges, and franchises of the plaintiff in the same, or in the rise, occupancy, and enjoyment thereof; and that, upon final hearing, the court may declare the rights of the plaintiff paramount to those of the defendant, that the injunction may be made perpetual, and that such other and further relief may be granted as is just and equitable.
    
      The defendant demurred to this petition on two grounds:
    1. The plaintiff seeks to vacate a proceeding under the statute having the force and effect of a judgment of the court.
    2. The facts stated in the petition do not entitle the plaintiff to the kind of relief sought.
    This demurrer was sustained, and judgment entered against the plaintiff for costs.
    To reverse the judgment, a petition in error was filed by the plaintiff in the district court, and therein reserved to this court for decision.
    
      Henry S. Heal for plaintiff in error:
    The court of common pleas erred in sustaining the demur rer to the petition.
    As the plaintiff, under the act of incorporation (47 O. L. L. 160), could take real estate without the consent of the owner, for the purposes for which it was incorporated, it could, a priori, purchase any and all such real estate.
    The petition avers that the lots in question were necessary for the proper execution and enjoyment of the powers and privileges of the company.
    The act authorizes the construction of the railroad from the Ohio rwer — not from the top of the bank, a distance from the river, but from the river itself — its waters. Consequently the rights of the company extended to the waters; and very properly, too, when it is considered that one terminus of the road is at a point where passengers and freight destined to a place beyond the terminus will necessarily have to seek river transportation.
    The proceedings of the city to condemn the lots under the statute (S. & C. 1501, see. 26), were taken and carried through in total disregard of the rights of the plaintiff, and in violation of sec. 19, art. 1 of the constitution of the State, which provides only for the appropriation of private property to public uses in cases where there is a present necessity for it, and not an imaginary possibility that it may be necessary at some indefinite time in the future.
    
      The city had already condemned other property for wharf purposes more than it could improve, or needed.
    There is no justice or equity in permitting the city to take the property so unnecessary for its use, and so necessary for the use of the company.
    A railroad company may condemn public grounds in a city to the use of the company (2 Curwen, 1398, sec. 11; 54 O. L. 133). The right of the company to hold property already acquired from others, when attempted to be taken by city authorities is much stronger.
    See Redfield on Railways, 320; The State v. Newark, 4 Dutcher (N. J.), 529; 36 Penn. St. 99; Mitchell v. Rockland, 45 Maine, 495; 12 Ill. 1; id. 138.
    
      Ralph Leete for defendant in error:
    The petition for injunction was clearly in the face of the statute. S. & S. 834.
    The statute is clear in defining the right, and unless it be repealed or decided unconstitutional, no injunction can lie.
    Sec. 5, art. 13, of the constitution of Ohio, authorizes the enactment of such laws, and defines clearly when the right of way may be had by the payment of a reasonable compensation awarded by a competent jury.
    The question is, which has the paramount right to the property, the city or this private corporation ? The city has but exercised the right guaranteed by the constitution and the law. 1 Ohio St. 77, 95; 2 Ohio St. 419, 427; 15 Ohio St. 21, 37.
   White, J.

The plaintiff relies mainly for the reversal of the judgment on two grounds:

1. That the defendant, the city of Ironton, already has sufficient property for wharf purposes..

2. .That the property in question being owned by the plaintiff, a railroad company, is not subject to appropriation by the defendant.

We will consider these objections in their order.

1. By sec. 26 of the municipal corporation act (S. & C. Stat. 1501), express power is conferred on the defendant “ to lay off, open, widen, straighten, extend, and establish, to improve, and keep in order and repair . . public grounds, wharves, landing-places, and market-spaces; . . to appropriate, enter upon, or take for such of the above purposes as may require it, land or material,” etc. Section 27 prescribes the course .to be pursued to effect the appropriation, “when it shall be deemed neeessa/ry by any municipal corporation to enter upon or take private property, as above provided.”

Under the statute, the authority and discretion of determining the quantity of ground required by the public for wharf purposes are vested in the corporation; and there is nothing in the petition showing that, in making the appropriation, the municipal authorities acted in bad faith, or that the property is intended to be used for any other purpose than that for which it was appropriated. Under these circumstances the action of the city is, on this question, final.

2. The plaintiff was incorporated to construct a railroad from the Ohio river, in Upper township, in Lawrence county, to the south line of Jackson county. ... O. L. L., vol. 47, p. 100.

By its charter it was declared to be invested with all the powers, and to be subject to all the restrictions and provisions of the act regulating railway companies, passed Feb. 11, 1848. 2 Curwen, 1394; 1 S. & C. Stat. 271.

By this act the plaintiff was authorized to construct and maintain a railroad with a single or double track, with such side tracks, turn-outs, offices and depots as it deemed necessary, between the points named in its charter; and for this purpose it was authorized to enter upon any lands for the purpose of examining and surveying its railroad line, and to appropriate so much thereof as might be deemed necessary for its railroad, including necessary side-tracks, depots,workshops, and water-stations.

So far as the power of the corporation to appropriate private property to public use aids in the solution of the question before us, the foregoing embraces all the authority with which the plaintiff is endowed ; and the authority thus given is intended to furnish the necessary territory upon which to operate its road.

We find no power given the company to condemn or to hold private property to its exclusive use, solely for wharf pin-poses, nor for streets or ordinary highways. • These may be necessary for the convenient transaction of its business; but they are alike necessary facilities for the transaction of the business of the public at large.

A wharf is a necessary incident to water transportation, and it would doubtless be for the interest of a private merchant or an unincorporated carrier, as well as of the plaintiff, to hold such property exempt from appropriation to public use; but the owner, nevertheless, when the property is required for a public wharf, is compelled to give up his right to its exclusive use, and to submit to the inconvenience of using the property as one of the public.

We discover no more authority in the statute for the plaintiff, as against the public, to ^ claim exclusive wharf privileges, than it has to exclusive privileges in the river as a highway. As respects such property, we think the company stands upon the same footing as other proprietors.

The power given to the municipal authorities to condemn property for the purposes of a wharf is an express power. The right of the company to hold property exempt from the exercise of this power, cannot, it seems to us, be extended, by construction, to lands held by the company for uses and purposes for which it is not by law authorized to condemn private property.

There is a general statement in the petition that the terminus of the plaintiff’s road is at the river, between Railroad and Centre streets, in the city of Ironton. But it is evident from the subsequent allegations, that this statement is made upon the idea that the property in question forms part of the road. The subsequent averments show that the depot and machine-shops are on certain lots of the city described in the petition, which form no part of the premises in controversy. The latter consists of the ground lying, between Eailroad and Centre streets, and extends from Front street into the river, and which, it is stated, has been graded for a wharf, and was purchased for that purpose.

We will merely add, that, being of opinion, upon the facts stated in the petition, that no legal right of the plaintiff has been violated, we have not deemed it necessary to inquire whether, in case the property had been exempt from appropriation, the remedy resorted to by the plaintiff would have been the proper one.

Judgment affirmed.

Beinkebhoff, O.J., and Scott, Welch, and Hat, JJ., concurred.  