
    Little Miami and Columbus and Xenia Railroad Companies v. The City of Dayton.
    1. Land appropriated to a particular public use is not thereby withdrawn from the liability to be taken by legislative authority; in the exercise of the power of eminent domain, for another public use; but a subsequent grant can not he construed to authorize the destruction or subversion of the former use, unless such appears by express words, or by necessary implication, to be the legislative intent.
    2. Cities and incorporated villages, in the exercise of the power to lay off and establish streets, and to enter upon and take land for that purpose, conferred by the general act of May 3, 1852 (50 Ohio L. 223), are authorized to lay streets across land which is the subject of the franchise of a railroad corporation, provided the second use for which the land is so taken is, in the circumstances of the particular case, reasonably consistent with the former'use. The land may, in such case, he subjected to the additional use, hut the former use may not thereby be defeated.
    3. The exercise by a municipal corporation of the discretion intrusted to it by the act referred to, in respect to the laying off and location of streets, so long as such corporation acts in good faith, and within the limits of its authority, is not subject to judicial revision.
    Error to the Superior Court of Montgomery county.
    The plaintiffs in error were plaintiffs in the original action. The case was this : The city council of Dayton having adopted an ordinance to extend Bainbridge street in said city from its northern terminus to Third street, and to appropriate for that purpose the necessary land, the city afterward filed in the Superior Court of Montgomery county its application, describing a parcel of land belonging to the plaintiffs necessary to be appropriated for that purpose, and asking that the compensation to be paid plaintiff's therefor might be ascertained as provided by law.
    The object of the original petition was to enjoin these proceedings, and restrain the city from extending the street across the plaintiffs’ land. The plaintiffs alleged that they were lawful railroad corporations of this state, created long prior to the passage of the act under which defendant was ¡seeking to make said appropriation; that they owned and were operating a .railroad extending through said city, which was a leading route of transportation and travel, and had lawfully acquired, for the uses and purposes of said road, the tract of land across which it was proposed to extend said street, and had appropriated the same to those uses and purposes; that they had extended their main track across the same, had built thereon an expensive depot and car-house, and laid down numerous side tracks and switches; all of which land, as so used and occupied, was absolutely .essential and necessary to the use and enjoyment of said railroad and the transaction of its business. They further alleged that the extension of said street across said land, as proposed, would greatly endanger their property and the lives of passengers upon their trains, and would so retard their business and interfere with their use of said grounds, buildings, and tracks as to make it necessary to abandon, the same ; that no other convenient and proper grounds or location for said depot and improvements could be procured in said city, and the injury to them would be irreparable and could not be compensated in damages; that the extension of said street was not a public necessity, and would not be even a public convenience, but a public nuisance, and dangerous and injurious not only to said railroad and the public, who use the same, but to the public who should •use said street.
    The defendant’s answer denied that the extension of said .street across said railroad and tracks, as proposed, would prevent the free use of the same by the plaintiffs for the purposes to which the same had before been devoted, or that such extension would seriously, or to any great extent, hinder or impede the plaintiffs in the prosecution of the.r business,.or endanger their property or the lives of their passengers ; and, upon this subject, it averred that the proposed extension and opening of said street would not be more dangerous to the public, whether using said street or railroad, or to the trains and the property of the plaintiffs,, than is ordinarily and necessarily incident to the running' of railroad trains through cities. It further averred that the extension of said street, as proposed, was a public-necessity, and would constitute a great and lasting benefit to the public and to the plaintiffs.
    Upon trial of the case in the Superior Court, the petition was dismissed. The plaintiffs having moved for a new trial, on the ground, among others, that the finding was not supported by the evidence, and the motion having been overruled, they took a bill of exceptions, setting out all the testimony.
    On behalf of the plaintiffs, it is now alleged that the-judgment is not warranted by the evidence, and is contrary to law.
    
      Young & Gottshall and Houk & McMahon, for plaintiffs in error, presenting mainly the same argument submitted by the late Abram Cahill, Esq., in the court below:
    1. The power to appropriate property to a public use, or-public property from one public use to another, can not be exercised by any corporation or individual without the express authority of the state, expressed by legislative enactment. McArthur v. Kelly, 5 Ohio, 143; Foote v. Cincinnati, 11 Ohio, 410; Lamb & McKee v. Lane, 4 Ohio St. 167.
    The legislature has authorized the appropriation of private property only to the public use. 1 S. & C. 311, sec. 1, etc.; 2 Ib. 1501, 1503, secs. 26, 27.
    Shares in railroad companies are private property, but the road itself and the property necessary to its proper and convenient use and operation are devoted to a public use. Giesey v. R. R. Co., 4 Ohio St. 308; Coe v. R. R. Co., 10 Ohio St. 372; Coe v. Peacock, 14 Ohio St. 187; R. R. Co. v. Lewton, 20 Ohio St. 401.
    Throughout, we may safely say, all the legislation of the-state, upon the subject of appropriating property, the legislature has always recognized a distinction between “ private property ” and property already devoted and appropriated to public use. 1 S. & C. 344, sec. 192; Ib. 279, secs. 16, 20, 29; Ib. 316, secs. 1, 2, 3; Ib. 299, sec. 47; 62 Ohio L. 72, sec. 1.
    The court can not, by a liberal construction of the towns- and cities act, find in that statute any grant of the power claimed. Miami Coal Co. v. Wigton, 19 Ohio St. 560.
    2. The property in question in this case had, long prior 'to the passage of the act under which the defendant is now; seeking to condemn the same, been taken and appropriated by the plaintiffs to the uses named in their petition, and, in so appropriating the same, their decision was final, both as-to the necessity of the appropriation and the quantity of ground required for such purposes. Railroad Co. v. Ironton, 19 Ohio St. 290. It requires a new act of the sovereign to divest the property from its present public use and devote it to another. The whole course of legislation in Ohio-seems to have proceeded on the principle that special authority was necessary for the reappropriation of property once appropriated to the public use. See Corporation Act of 1848, 1 S. & C. 272, sec. 11, in note, and statutes cited, supra,
    
    3. If this view is correct, the city of Dayton is proceeding to appropriate the property .of the plaintiffs without authority of law, and the remedy by injunction is a proper one. Giesy v. Railroad Co., 4 Ohio St. 326; Arthur v. Kelly et al., 5 Ohio, 139; Gardner v. Newburgh, 2 Johns. Ch. 162; Morehead v. Railroad Co., 17 Ohio, 340; Coats v. Railway Co., 5 Eng. Ch. 182; 1 Russ. & Mylne; Attorney-General v. Forbes, 2 Mylne & Craig, 123; 14 Eng. Ch. 123; Hayward v. New York, 3 Seld. 325 (N. Y. Rep.); King v. Ward, 4 Ad. & El. 384 (31 E. C. L. 92); Corning v. Lowre, 6 Johns. Ch. 439; Mayor, etc. v. The Alexandria Canal Co., 12 Peters, 91.
    
      Alfred A. Thomas, city solicitor, for defendant in error:
    1. Upon the necessity and expediency of the exercise of the right of eminent domain, the judgment of the city council is conclusive. Dillon on Municipal Corp., sec. 465 
      Giesy v. Railroad Co., 4 Ohio St. 326; Varick v. Smith, 5 Paige, 137; People v. Smith, 21 N. Y. 597.
    The case cited on the other side, the Iron Railroad Co. v. Ironton, 19 Ohio St. 299, settles this.
    2. Whether the railroad will be seriously impeded as a public highway, and whether the injury will be such as can not be compensated in damages, by the laying out of this street in the manner proposed, are questions of fact on which the court below found the issues in favor of the defendant.
    3. It is the act of May 3, 1852 (2 S. & C. 1501), under which the city has proceeded.
    In the grant to the city, then, there is not a word limiting, or tending to limit, the subject-matter of the appropriation to private property alone. It is authorized, for the purpose in question, to appropriate, enter upon, or take land or material.
    
    We claim that not one of the special acts,-cited for plaintiffs, extends the bounds of an already delegated and limited power of eminent domain, but is rather declaratory of the Jaw, and intended to arrange the details of a complicated appropriation. That these statutes are special and repetitious, is indicative of the confused condition of statutory corporate law in Ohio, and not of the intention of the legislature.
    It is claimed that a railroad is public and not private property. The ausweris, it partakes of the nature of both. As a highway it must be maintained, and the right of the public to maintain the highway is paramount to any other right which will seriously cripple or destroy it. Railroad Co. v. Lewton, 20 Ohio St. 412.
    But, on the other hand, a railroad is an hereditament and passes to the heir subject to the laws of descent and distribution; it is used for private profit and emolument; it may be pledged or sold; it may be taken on execution to pay debts. It is subject to taxation, and, we claim, with the qualifications above stated, to the power of eminent domain.
    
    So far as the burden of eminent domain is concerned, property held by a corporate company and appropriated by it to public uses and conveniences, stands upon the same footing with that held by an individual, and a franchise can not be distinguished from other property. West River Bridge Co. v. Brattleboro, 6 How. (U. S.) 507; Richmond R. R. Co. v. Louisa R. R. Co., 18 How. 71; Centred Bridge Corp. v. Lowell, 4 Gray, 474; Armington v. Town of Barnett, 15 Vt. 745; Piscataqua Bridge v. N. H. Bridge, 7 N. H. 35; Barber v. Andover, 8 N. H. 398; Pierce v. Somersworth, 10 N. H. 370; Boston and Lowell R. R. Co. v. Salem and Lowell R. R. Co., 2 Gray, 2; White River Turnpike Co. v. Vt. Cen. R. R. Co., 21 Vt. 590; Phila. W. & Balto. R. R. v. Williams, 54 Penn. St. 103; Boston Water Power Co. v. Boston & W. R. R. Co., 23 Pick. 360.
    4. The city is but the agency through which the state here acts; and the claim that a right of way over this-property can not be condemned, because it had previously been appropriated to a different public use, is simply a denial of the right of the legislature to grant the authority.
    A legislature has the power to authorize one company to condemn property of another, which is used for public travel or appropriated to public use. Cincinnati v. Commissioners, 1 Disney, 4; Enfield Fulls Bridge Co. v. R. R. Co., 17 Conn. 40; Indiana Cen. R. R. Co. v. Trustees, 3 Ind. 422; Inhabitants of Springfield v. Conn. River R. R. Co., 4 Cush. 70-73.
    A decision herein will not answer the query in Hatch v. C. & I. R. R. Co., 18 Ohio St. 92. We do not seek to appropriate “ the material body of another corporation.”
    
      Corwin & Corwin, on same side:
    1. All property of every description is held subject to the right of eminent domain. Giesey v. R. R. Co., 4 Ohio St. 324; Redfield on Railways, 132; 2 Washburn Real Prop. 21, sec. 11.
    2. Section 26 (S. &. C. 1501) conferred upon cities the right to appropriate lands occupied by railroad tracks. Salmon v. Randall, 14 Eng. Ch. (pt. 2), 440; McMicken v. Cincin
      
      nati, 4 Ohio St. 394, 398; 2 S. & C. 1501, secs. 26, 27; Chagrin Falls and Cleveland R. R. Co. v. Cane, 2 Ohio St. 419; Northern Indiana R. R. Co. v. Connelly, 10 Ohio St. 159, 167.
    3. A court of equity will not restrain the city council from exercising a discretionary power where no fraud or malice is shown. Iron R. R. Co. v. Ironton, 19 Ohio St. 299; Varick v. Smith, 5 Paige, 137; Giesey v. R. R. Co., 4 Ohio St. 308, 325, 326; T. & W. Railway v. Daniels, 16 Ohio St. 390, 400; Cooper v. Williams, 4 Ohio St. 253; Commonwealth v. P. & C. R. R. Co., 24 Penn. St. 139 Walker v. R. R. Co., 8 Ohio, 38.
    The plaintiffs having a complete remedy in the proceedings they seek to enjoin, can not maintain this suit. Geisey v. R. R. Co., 4 Ohio St. 308; A. & O. R. R. Co. v. Sullivant, 5 Ib. 276; Atkinson v. R. R. Co., 15 Ib. 21; T. & W. R. R. Co. v. Daniels, 16 Ib. 390; Swan Pl. & Pr. 257; Foot v. Sprague, 12 How. 355; Hunt v. Farmers’ Loan, etc., 8 How. 418; Story’s Equity, sec. 875.
   Stone, J.

The power intrusted to the municipal corporations of this state, in respect to the laying off and establishment of streets and public grounds, was, by section 26 of the act of May 3, 1852, to provide for the-organization of cities and incorporated villages, conferred in these words: “ They shall have power to lay off, open, widen, straighten, extend, and establish . . streets, alleys, public grounds, wharves, landing-places, and market-spaces,” and “to. enter upon or take for such of the above purposes as may require it, land or material.’’ By a subsequent section of the statute, due compensation was required to be made for such private property as it. should be “ deemed necessary by any municipal corporation to enter upon or take” for any of the purposes named, and suitable provision was made for fixing the amount, and for' the payment of such compensation, in accordance with the requirements of the constitution.

These provisions have, in substance, been retained in the»•subsequent amending and repealing acts, and in all have been applicable to all the cities and incorporated villages of the state.

In the exercise of the power thus conferred, the laying off and establishment, and the extension of streets across railroads, is frequently necessary, and is, we think, clearly authorized. In the actual circumstances of a large number of the cities and villages of the state, the power could otherwise be exercised to only a limited and partial extent, and could not be made available to meet the public necessities, and accomplish the object for which it was evidently conferred.

The power intrusted to the commissioners of counties, to lay off' and establish roads and highways, is granted in equally general terms, no special provision being made for crossing railroads. But it can not be doubted that the commissioners have that power. The extension of streets and of roads and highways across railroads is so evidently .a matter of public convenience and necessity, that it must be presumed to have been in the contemplation of the legislature when the statutes referred to were enacted. The terms of the grant are, in each case, sufficiently broad, prima facie, to confer the requisite authority, and there is in such case nothing in the nature of the use to which the land has been appropriated by the railroad company, or in that to which it is proposed to subject it by the second appropriation, which requires us, upon any presumed intention of the legislature, to ingraft upon the general terms of the grant an exception which will prohibit such crossing. The two uses are not necessarily inconsistent, and in all ordinary cases, at least, may well stand together.

As already indicated, it does not follow from these considerations that the authority in question must be held to extend to the taking of property however circumstanced, without regard to its effect upon the former use to which it may have been appropriated.

We do not doubt the power of the legislature to grant such authority. Property appropriated to a particular public use is not thereby withdrawn from the liability to betaken for a different and inconsistent use, whenever, in the judgment of the legislature, the public exigency may require. The power of eminent domain is a prerogative of sovereignty. It is not exhausted by use, and can only be-limited by the public exigency upon which it is founded. Giesey v. Railroad Co., 4 Ohio St. 324. But where land is appropriated, pursuant to legislative authority, to an important public use, a subsequent grant can not be held to authorize the same land to be taken for a use wholly inconsistent with, and which, in the actual circumstances, must necessarily supersede the former use, unless such appear, by express words, or by necessary implication, to be the legislative intent. Boston Water Power Co. v. B. & W. R. R. Co., 23 Pick. 360.

The power conferred upon municipal corporations, in the-general language above quoted, to lay off and establish, streets, and to take therefor the necessary land, is necessarily subject to 'the limitation indicated. It can not, for instance, in my judgment, without doing violence to the-legislative intent, be held to authorize the taking of works-of public improvement constructed by the state, or pursuant to its authority, or to authorize land to be taken which is lawfully appropriated to public use, as the franchise of a railroad corporation, where such taking would defeat the-former use, and, in effect, annul the corporate franchise.

The present case, however, we are all of the opinion, is not one of this character. The issues upon which the case-was submitted to the court below, involved an examination of all the circumstances pertaining to the situation of the land-in question, the purposes to which it had been appropriated and was used by the plaintiffs, and the extent to which that use would be interfered with or impaired by the extension of the street as proposed by the city council. Upon such an examination the finding and judgment of that court were for' the defendant. The finding was, we think, warranted by the testimony. The witnesses examined upon the trial. differed widely, in the opinions they expressed, as to the effect of the proposed improvement upon the business of the plaintiffs, and the extent to which it would interrupt or interfere with the present and prospective use by them of the property in question; but there was no substantial disagreement in relation to the facts upon which those opinions were based. The appropriation to be made by the city must necessarily be made subject to the public use to which the land may now be lawfully appropriated; and, upon'the whole case, it does not appear that the two uses are, in the actual circumstances, necessarily inconsistent, or that the-latter will defeat or unreasonably interfere with the former. By the extension of the street, the land is subjected to an additional use, but the former use is not superseded ; and, in so far as it is interfered with, the question becomes one simply of compensation.

This question is not now before us. The defendant, conceding that due compensation must be made, is here claiming the right to have such compensation assessed ; and the object of the plaintiffs’ suit in the court below was to enjoin proceedings which the defendant had instituted and was prosecuting for that purpose. The statute under which that proceeding was instituted makes provision for assessing compensanon in all cases where private property is taken for the uses named ; and it is evident that whatever claim to compensation the plaintiffs may be entitled to- assert, stands necessarily upon that ground.

The mere fact that the extension of the street, as proposed, will inconvenience the plaintiffs, or subject them to-additional expense in transacting their business and operating their road, constitutes no ground for the interference of a court of equity. The same results, to a greater or less extent, are produced wherever a railroad is crossed by a public street or highway. These are matters which it is clearly the duty of the city council to take into consideration in determining the necessity and expediency of the proposed improvement; but so long as their proceedings are regular, and they act from proper motives and within the limits of their authority, the discretion confided to them in respect to the location and establishment of streets is not subject to judicial revision.

Judgment affirmed.  