
    (Butler County Court of Common Pleas.)
    The Hamilton & Lindenwald Electric Transit Co. v. The City of Hamilton.
    1. The primary purpose o£ public streets is to facilitate travel and transportation. They belong to the public from side to side and end to end, and may be used for any and every kind of public travel and transportation which the n’ecessities or convenience-of the public may require.
    2. Among the new and improved agencies which modern invention has created for this purpose, is the street railroad. Subject to certain restrictions imposed by law; it is-left to city councils to determine to what extent and in what manner public streets shall be used for street railway purposes.
    3. But an ordinance of a city granting to a street railway company the right to construct and operate a street railroad, is to be strictly construed against the company, and in favor of the city. The company can claim only such rights and privileges as are conferred by express words, or by necessary implication. Doubt is fatal to the claim of the company.
    4. Where words of general description in a statute or ordinance follow words of particular description, such general words are to be restricted in meaning to objects of like kind and use with those specified,
    5. The words, “other appliances,” in an ordinance granting the right to construct a street railroad and “all necessary sidetracks, curves and switches and other appliances for the proper and successful operation of the road,” must be restricted in meaning to appliances of the kind and use as “sidetracks, curves' and switches.”
    6. Such words would include any existing or improved devices or appliances which might be imbedded in the street, and used for the purpose of running, moving, changing or turning cars; but would not include such a structure as a transfer house, erected in the middle of the street, rising above its surface, and used for the purpose of sheltering and facilitating the transfer of passengers.
    7. Nor would the fact that the city, by ordinances passed at different times, had authorized the company to construct its road in such manner that the different branches all centered at the intersection of the streets where such transfer house was placed, by necessary implication confer upon the company the right to erect the same in the middle of the street, thereby permanently appropriating to its exclusive use a definite portion of the street.
    8. The passing of a motion or resolution by council, authorizing the company “to build a temporary transfer house,” did not by implication confer the right to supply its place with'á'permanent structure, although in the application for the temporary privilege the company expressed a purpose thereafter to erect such a permanent structure according to plans to be submitted to council.
    9. Where general conclusions of fact are averred in a pleading, together with a statement of particular facts, if it appears that such general conclusions are unwarranted, or contradicted by the particular facts stated, the pleading will be held bad on demurrer.
   Van Pelt, J.

The questions for determination in this case arise upon demurrer to the plaintiff’s petition. The essential facts set forth in said petition are as follows: That by and in pursuance of certain ordinances of said defendant city, plaintiff acquired the franchise to construct and operate a street railroad upon the streets of said city, said street railroad consisting of main line and some six or seven side or connecting lines, now constructed and in operation; that it also acquired the franchise of using electro-motive power in the operation of said road and extensions, and to make and use all necessary sidetracks, curves, switches and other appliances for the proper and successful operation of said road ; the plaintiff was to have the right to charge fare for carrying passengers, but said fare was not to exceed five cents for any person between any two points on said street railroad, including the mainline and extensions, from one terminus to the other ; that said company, at great expense, built its power house, and furnished the engine and suitable electrical machinery, and about twenty-three street cars and other equipments, and has been operating its original line and its connecting lines, as completed, since December, 1890; that said company constructed a double track on High street in said city, said street extending east and west, and said tracks being about fourteen feet apart; that all branches of its road center at the intersection of High and Second streets in said city; that owing to the plan on which its road and ■extensions have been constructed under the ordinances of said city, it becomes necessary to transfer all passengers desiring to pass in one continuous trip over more than one branch of its road, at the intersection of said High and Second streets; that this is the only place where such transfers can be made; that passengers, while awaiting cars, unless in some' way sheltered, would be exposed to all conditions of the weather, and would have to stand in an unprotected position in the street; that there exists an absolute necessity that a transfer house be built between the two tracks on High street at its intersection with Second street, for the accommodation of passengers, and in order that plaintiff may successfully operate its road as required by the ordinances; that said High street is not less than one hundred feet in width, and that a transfer house at said point would not interfere with, or interrupt public travel on said street; that on November 14, 1891, it applied, in writing, to the city council for the privilege of erecting such a transfer house, stating the necessity of such a building, and that it was having plans and specifications drawn up which would be presented to council for approval; that said transfer station would be of iron and plate glass, and entirely ornamental; and that as it would take some time to erect such a building, the company asked to be permitted “to erect a temporary frame structure on said location, to remain there for a period of three or four months, say to April 1st, the dimensions of said building to be nine feet wide, twenty feet long, and ten or twelve feet high ;” that said council thereupon, by a proper majority, entered on their minutes the following: “A petition was received from the Hamilton & Lindenwald Electric Transit Company, asking permission to build a temporary transfer station on Second and High Streets, which was received, and prayer granted by a viva voce vote;” that in pursuance of said authority, said company erected a temporary transfer house at said point and between said tracks, about nine feet wide, eighteen feet long, and nine feet high and that the same is an absolute necessity for the comfort of a great number of passengers, and to the successful operation of its roád ; that in February, 1892, it caused to be prepared plans and specifications for a more elegant and convenient structure to take the place of said temporary house, and endeavored to consult with council in regard to the Fame, notifying council that it was ready to erect said new transfer station as soon as council signified its approval of said plans; that said council refused to consider or advise with said company in regard to said plans, or any plan of such transfer house, and on May 3, 1892, served written notice on said company to remove said temporary building within ten days from said date, and plaintiff's aver that said defendant threatens to remove, and will remove said transfer house and prevent the erection of another at that point, unless restrained therefrom. And plaintiff avers that defendant is acting in violation of said ordinances and of the rights of said company, and that the removal of said transfer house would greatly annoy and injure the public travel on said street railway, and would do great apd irreparable injury to the plaintiff in the operation of its road ; and plaintiff prays that the defendants, officers and agents, may be enjoined from removing, or in any way interfering with said transfer building, and for all other proper equitable relief in the premises. Such is a fair summary of the more detailed allegations of the petición, and the question is: Are they sufficient to authorize the relief prayed for ?

The issue in this case arises between the city of Hamilton on the one side, and the street railway on the other. The rights of private' parties or abutting lot owners are not in issue. A street is a public highway in a-town or city. Authority and control over streets and highwa.3S is vested primarily in the state, to be exercised by its legislature. By the provision of section 2640 of the Revised Statutes, “the care, supervision and control of all public highways and streets,” in towns and cities have been conferred by the legislature^pon the councils of such towns and cities, and they are required to keep such highways and streets open and in repair, and free from nuisances. The primary and dominant purpose of their establishment was to facilitate travel and transportation ; they belong from side to side and end to end to the public, that the public may enjoy the right of traveling and transporting their goods over them. Language of Dickman, J., in Railway Co. v. Telegraph Association, 48 Ohio St. 390, 426. In the absence of any limitation imposed by lawful authority, such highways and streets may be used “for any and every kind of public travel and transportation which the necessities or convenience of the public may require. This uee may be modified by leave of the sovereign power, as public convenience or necessity in the application of modern improvements, may from time to time demonstrate to be needful.” Taylor, J., in Bradshaw v. Citizens' Street Railway Co. Superior Court, Marion county, Ind. Among the new and improved agencies which modern invention has brought into existence for the purpose facilitating public travel, is the street railway. The use of highways for the purpose of street railroads, “involves the application of new appliances and modes of travel, rather than of any new principle.” Ranney, J., in Street Railway Co. v. Cumminsville, 14 Ohio St. 523, 545. Elsewhere he says : “ The use of such highway for the purpose of carrying passengers over the same in this particular manner, differs in nothing from the exercise of the common right to carry them by coaches or omnibuses; and everything needing a grant, or the further authority of law, is the right to place and maintain in the highway the necessary conveniences for this new description of carriages. When this grant is confined to a mere occupation of the easement previously acquired by the public, although its enjoyment may require a restriction upon former modes, we can see nothing in it, but the control, regulation and adjustment of a public right’ so as to make it best answer the purpose and meet the wants of all classes of the community. It does not exclude or seriously interfere with the original modes, in which the highway was used, but simply adds another in furtherance of the general object-.”

In harmony, however, with the general policy a’sd express provisions of the statutes conferring upon municipal corporations the care and controhof their streets and public highways, the matter of granting franchises for the construction of street railways and the terms, conditions, and limitations of such grants are by law referred to the councils of such corporations. Section 2501, Rev. Stat., provides that “ no corporaticn * * shall perform any work in the construction of a street railroad, until application for leave is made to the council in writing, and the council by ordinance shall have granted permission and prescribed the terms and conditions upon and the manner in which the road shall be constructed and operated,” etc. Section 3438, Rev. S* at., provides that “the right so to construct or extend any such railway within * * the limits of a municipal corporation can be granted only by the council thereof, by ordinance,” etc., and section 3443, Rev. Stat., provides that council “shall have the power to fix the terms and conditions upon which such railways may be conducted, operated, extended and consolidated.” These statutory provisions make it entirely clear that, subject to certain restrictions imposed by law, it is left to council of municipal corporations to determine to what extent their public streets shall be used for street railway purposes. And franchises for the construction and operation of such roads, and the rights and privileges which may be acquired to use or occupy any portion of the public streets for such purposes, are required to be embodied in and defined by ordinances of the corporation. Controversies, therefore, arising between the municipal corporation on the one side and a company operating a street railway within the corporate limits on the other, and growing out of the use of the public streets for that purpose, are to be determined by a careful construction of the ordinance or ordinances granting the franchises to use the streets for that purpose. And here the first-question which arises is — What rule is to be adopted by the courts in construing such grant ? “A charter granted by a city council to a street railway company to construct and operate a street railway within the corporate limits of a city, constitutes a contract between such railway company and the city.” Western P. & S. Co. v. Citizens Str. Ry. Co., 128 Ind. 525, (25 Am. St. Rep. 462; City Chicago v. Selden, 9 Well. 50; Coast Line R. R. Co. v. Mayor, 30 Fed. Rep. 646; State v. Corugan Cons. St. Ry. Co., 85 Mo. 263, (55 Am. Rep. 261); New Jersey v. Zard, 95 U. S. 104; Greenwood v. Freight Co., 105 U. S. 13; New Orleans Gas Co. v. Lousiana Light Co., 115 U. S. 650. “And it is also settled that such charter is to be strictly construed against the railway company, and that it has no doubtful rights under such charter; for where there are doubts they are construed against the grantee and in favor of the city.” Western P. & S. Co. v. Citizens St. Ry. Co., supra, citing Mayor, etc. v. Ohio, etc. R. R. Co., 26 Pa. St. 355 ; Birmingham, etc., Ry. Co. v. Birmingham Ry. Co., 79 Ala. 465, (58 Am. Rep. 615) ; and Citizens Ry. Co. v. Jones, 84 Fed. Rep. 579. In Newton v. Com’rs, 26 Ohio St. 626, the court say: “Nothing is better settled than the principle that in order to make a legislative grant, the words of the act must be certain and direct, and must clearly show the legislative intent. The contract or grant can not be inferred, or made to rest in implication.” In Elliott on Roads and Streets, page 578, the author says, “ a street railway company takes under its charter or license only such rights as are expressly conferred or are clearly implied, and it therefore acquires only a right to use the road or street for the purpose of moving its cars and' transporting passengers.” In the case of The Citizens’ Railroad Company v. Jones, supra, the court say: “ It is also a canon of construction that grants of franchises by public corporations to individuals or private corporations are to be strictly construed, and no exclusive privilege passes unless it is plainly conferred by express words, or necessary implication.” In granting by ordinance the franchise to construct and operate a street railway a city council exercises a legislative power conferred by the state, and the same rule of construction applies to such an ordinance that would apply if such franchise were granted by direct act of the legislature. Such gsants are to be construed favorably for the city and strictly against the street railway company. The privileges claimed must be given in unmistakable terms, or by implication equally clear. Djubt is fatal to the claim of the company.

Now, the company in this case claims the right to keep and maintain at its pleasure and against the objection of the city, a transfer house or station between its tracks in the center of High street, at the east intersection with Second street.

This right is claimed, first, on the ground that the ordinance expressly provides that the company may construct in connection with its tracks “all the necessary sidetracks, curves, switches, and other appliances for the proper and successful operation of said road and extensions,” and that such transfer house is a “ necessary appliance” to the successful operation of the different branches of road centering at that point. That is, it is claimed that the right to maintain this transfer house is within the express terms of the grant. It is a well known rule of statutory interpretation that where words of general description follow particular words, such general words are restricted in meaning to objects of a like kind with those specified. And this rule would apply especially in the interpretation of statutes or ordinances where the court is required, as between the parties, to adopt the principle of strict construction against the party claiming the benefit of the act or ordinance, as in this case. It seems clear to the mind of the court that the general words “ other appliances,” used as they are in connection with and immediately following the particular words “ sidetracks, curves and switches,” must be limited in meaning to things of like kind and description, and can not be held to include such a structure as a house rising above the surface of the street, and devoted to an entirely different purpose. Such general words would no doubt include any existing or improved devices or appliances, which might be imbedded in the street and used for the purpose of running, moving, changing or turning cars, but it, would certainly be extending their meaning too far and beyond what may fairly be inferred to have been intended by their use to hold that they embrace the erection of a building like this in the middle of the street, and devoted to the sheltering of passengers, and facilitating their transfer from one branch of the road to another. The court is of the opinion that the right is not exoressly conferred by the clause of the ordinance referred to.

Secondly. — It is claimed by the company that the grants contained in the ordinances for the construction of the road with all its branches centering at the intersection of High and Second streets, create the necessity of a transfer station at that point, and hence that the right to maintain this transfer house exists by necessary implication. The argument is that the road, under the ordinances, has been so constructed that its branches all center at this point; that passengers are required to be transferred without additional fare; that such transfers can be made only at this place; that passengers, while awaiting transfer, must have some protection and shelter; that the safest and most convenient place for a transfer house is between the two tracks at the intersection of the two streets, and hence that the city has by clear implication growing out of the necessities of the case, granted to the company the right to erect such a transfer house at that patticular point. That there exists a necessity for a transfer station at or near the intersection of these streets is plain, and the right of the company to maintain such a station is, in the opinion of the court, clearly implied from the nature of the grant and from the duties imposed upon the company. But while the company has the right by implication to locate such a station so that the same will be reasonably convenient for the transfer of passengers, it by no means follows that it has the implied right, against the objection of the city council, to locate such a station in the middle of High street, and thereby appropriate to its exclusive use a definite portion of said street. The right to maintain a transfer house so situated as to be reasonably convenient for its purposes is one thing, and the right to maintain this particular transfer house at this particular point is quite another. The first right does exist by necessary implication, but the second does not. Nor does the fact that it may be the safest and most convenient place for such transfers confer this right. Others have rights in the street, and to use the same for purposes of travel and transportation, as well as those who travel in the cars of this company. All must be accommodated, and the rights of all must be protected as far as possible; and all that this company or its passengers have a right to demand is that reasonably suitable means shall be provided for making transfers from one branch of defendant’s road to another. The court is of opinion that the right to maintain á transfer house at this particular point, between the two tracks in the middle of High street, does not arise by implication. And the very fact that this company, in November, 1891, applied to the city council for a special permit to erect this transfer house, is inconsistent with the claim now made by it that it had acquired that right either in express terms or by necessary.implication from the grants heretofore made.

This brings us to the third claim of the company, which is: That the special permission granted November 4, 1891, to erect the temporary station now in controversy, carried with it the right to a permanent station and the right to maintain the present house until a more elegant structure could be built. The argument is that the application made to council clearly stated the desire of the company to permanently locate a transfer house at this point, and set forth the necessity therefor, and plainly informed the council that the company expected and intended to replace it about April .1, 1892, with an elegant and ornamental structure of iron and plate glass on a stone foundation, and hence, that the council, in granting this permission to erect the present station, and knowing the desire of the company, and that it would adjust its business to the convenience of such a station, must be held to have intended that a transfer house should be permanently fixed at that point. There is force in this argument, but it doe3 not impress the mind of the court as conclusive. Without stopping to inquire whether the council could by such an informal vote or otherwise than by ordinance, grant such a right to permanently and exclusively appropriate a portion of a public street for such a purpose, it sufficiently appears from the language of the minute made upon their records, that the council considered the application only in the light of a request for permission to erect a temporary house. They ignore ail other features of the application, and in the briefest manner possible grant the request “to build a temporary transfer house.” This grant, like the original ordinances for the construction of the road, is to be strictly construed in favor of the city, and can not be extended beyond its express terms to include any doubtful claim resting upon a mere inference growing out of the broader terms of the application and the situation of the road. And it might be urged with equal strength and plausibility that the council carefully restricted the grant, for the express purpose of determining from the use of a temporary station at this point, whether it would be advisable thereafter to permit the erection of a permanent one. Such an inference stands well with the terms of the grant, and if the company saw fit to erect a temporary station and adjust its business to its use, without having secured the clear right to replace it with a permanent structure, it is in no position to complain if this privilege is refused. The court, therefore, holds that the permission given did not carry with it the right to fix a station at this point, nor the right to maintain the present structure beyond April 1, 1892.

We have now considered the claims of the plaintiff upon the three main grounds urged in argument. But there is yet a further question arising upon this demurrer. It is claimed that, as a matter of pleading, there are two allegations broadly made in the petition, which can be determined only upon a hearing, and are sufficient to render the petition good as against a general demurrer. These are the averments that a transfer house at this very point is an absolute necessity for the convenience of passengers and the successful operation of the road, and that it would not interfere with or interrupt public travel on the street. It is argued on the other band, that these are mere conclusions of law, improperly inserted in the pleading, and not admitted by the demurrer. We cannot regard them as conclusions of law. They are rather conclusions of fact which the pleader draws from the situation of the road, the manner of its construction, the amount of travel over its different branches, the requirement as to fare, the necessity for transferring passengers, the width of High street at this point, and the further facts averred in the petition. The broad allegation that a transfer house at this very spot is an “absolute necessity” to the business of the road is to be taken in connection with the facts upon which it appears to be predicated. The case of Robinson v. Stewart, 10 N. Y. 189, was an action to set aside conveyances on the ground of fraud. The answer in terms denied all fraudulent intent, and proceeded further to state the circumstances under which the conveyance was made. The court held that taking the defendant’s own statement as true the transfers could not be sustained as against the claims of creditors. The court say: “ It is a familiar rule that a positive denial of fraud in an answer will not prevail against admissions, in the same pleading, of facts which show that the transaction was fraudulent.” In the case of the H. & R. Hydraulic Company v. C. H. & D. Railroad Company, 29 Ohio St. 341, the defendant in its second defense averred that the alleged promise sued on “was a contract for an interest in lands and tenements,” and void under the statute of frauds. The court held that this allegation was not well pleaded; that it was “ a mere conclusion which the facts stated in the petition did not warrant,” and that “while a demurrer admits the truth of facts well plead, it does not admit the correctness of mere conclusions drawn from facts.” The Home Insurance Company v. Lindsey, 26 Ohio St. 348, was an action on an insurance policy. Plaintiffs averred, among other things, that they and their assignor “duly performed all the conditions of said policy of insurance on their part.” One of the conditions of the policy, as shown by the petition, was that proofs of loss should be made to the company within thirty days after such loss. The petition also showed that the loss occurred on September 13th, and that the proofs of loss were not forwarded to the company till October 19th. The Supreme Court held that notwithstanding the general' averment that all the conditions of the policy, had been performed, the court below erred in overruling a demurrer to the petition. The particular fact stated contradicted the general averment of performance. See also Lange v. Benedict, 73 N. Y. 12. These authorities make it clear that where general conclusions of facts are stated in a pleading, together with a statement of particular facts, if it appears that such general conclusions are unwarranted or contradicted by the particular facts stated, the pleading will be held bad on demurrer. And the court is of the opinion that the broad allegation in this petition that a transfer station at this particular point, in the middle of High street, is “an abso-' lute necessity,” is not borne out by the facts stated, and is disproved thereby. So with the allegation that such a transfer house “would not interfere with, or interrupt public travel.” This building is nine feet wide and eighteen feet long.' Allowing reasonable room for vehicles to turn out in order to pass by, it is safe to say, that the public traveling by other modes, is entirely excluded from the use of a space of twice that width and length, in the very center of one of the most important streets of the city. Certainly this must, to some extent, interfere with and obstruct the use of the street for public travel. On the whole case as stated in the petition, the court finds that the plaintiff has not shown a right acquired either by express grant or license, or by necessary implication to maintain a transfer house at the point in question, and thereby appropriate to its exclusive use a definite portion of this public street against the objection of the city council, and that the demurrer to the petition should be sustained.

The attention of the court has been called to the case .of Bradshaw v. Citizens' Street Railway Co , in the Superior Courtof Marion county, Indiana. In that- case, the transfer car in question had been placed in the street with the consent and by the express authority of the city. The suit was brought by an individual owning a lot near the place where the car stood, claiming that the city authorities had exceeded their powers, and that the car standing in the street was a nuisance per se. Judge Taylor held that' the car was movable, that as it had been placed in the street with the sanction for the time being “of the power that had' exclusive jurisdiction ■ over the street,” and that as the plaintiff as an individual was not shown to have suffered any appreciable damage because of such car, he could not complain and was not entitled to a relief. '

Here the facts áre very different. The house'is not movable; “the-power having the exclusive jurisdiction over the street,” has not, as the" court has found, conferred upon the plaintiff the right to continue to maim ■ tain it, but has ordered its removal, and the controversy is between the city council and the company. The main facts upon which the court based the opinion in that case, do not exi-t in this, and that case is not an authority supporting the claim made by the plaintiff here. Let an order be entered sustaining the demurrer.

Alex. Hume, Thos. Millikin and John F. Neilan, for the company.

M. O. Burns, City Solicitor, Morey, Adams & Morey and E. H. Hull, for the city.

[Note. — Affirmed by the circuit court.]  