
    Shaffer et al. v. Toledo & Indiana Rd. Co. et al.
    
      (Decided May 19, 1930.)
    
      Messrs. Geer & Lane, for plaintiffs.
    
      Messrs. Tracy, Chapman <& Welles, for defendants.
   Richards, J.

The plaintiffs are owners of village lots upon which residences are erected abutting on an alley in the village of Swanton, Fulton county, and bring this action for the purpose of enjoining the village and the interurban railroad company from granting rights and privileges and constructing and maintaining a spur or branch of the railroad through the alley. After the case was tried in the court of common pleas, resulting favorably to the defendants, the railroad proceeded with the construction of the track, and has substantially completed the same.

The alley is 16 feet wide and about 760 feet long, and the track is constructed to provide an outlet for the products of a manufacturing company abutting on the alley. The spur track extends along the center of the alley for something more than 500 feet, from which place it swerves to the east onto the property of the Pilliod Cabinet Company, for whose convenience it appears to have been planned.

The owners of a majority of the feet front on the alley consented to the passage of the ordinance and the construction of the track. The plaintiffs contend that the construction of the spur track constitutes an additional burden upon their property, for which they are entitled to be compensated, and for that reason seek this injunction, they not having consented to the building of the track.

This court has given a very careful examination to the interesting questions of law involved in this action, and we think it may be fairly said to be established in Ohio that the construction of the track of a steam railroad upon a street or alley of a city or village is per se an additional burden upon the property of the abutting owners. We think, further, that it may safely be stated as a general rule that the construction of the track of a street railroad in a street or alley of a municipality is not per se an additional burden. While this principle is of general application, this court is of the opinion that a case may well exist where a spur track or side-track constructed by an interurban railroad company in a street or alley of a municipality may be so located and built as to constitute an additional burden upon the property of an abutting owner and cause substantial damage. In other words, it may become a question of fact under the circumstances whether such track does or does not constitute an added burden. The matter is discussed in Ghaster v. City of Fostoria, 115 Ohio St., 210, 217, 152 N. E., 651, 653, 46 A. L. R., 1439. As was said in that case, in the course of the opinion, we are not concerned with the extent of the damage by the interference or obstruction, but we are concerned with the question whether there is some substantial interference or obstruction which would render the property of the plaintiffs less valuable, and the Supreme Court in the case cited used this language: “In this respect there is no essential difference between a steam railroad and a street railroad.”

In tbe instant case, evidence was introduced tending to show very substantial damages to the property of the plaintiffs, resulting from the construction of the track, but it may be that the witnesses so testifying failed to base their opinions solely on the proper elements of damage in such cases. An interesting and instructive case is that of Cincinnati & Spring Grove Ave. St. Ry. Co. v. Village of Cumminsville, 14 Ohio St., 523. See, also, Schaaf v. Cleveland, Medina & Southern Ry. Co., 66 Ohio St., 215, 64 N. E., 145. It may be noted in the instant case that the spur track is not at all intended for the transportation of anything except freight. The evidence discloses that, considering the width of the track and the width of the cars to be operated thereon, sufficient space is not left for a vehicle to stand in the alley when a car travels along the track. If one of the plaintiffs has, or should have in the future, a garage in the rear of his lot, and should run his car out of the garage into the alley, it would be impossible to safely park it along the side of the alley. This, of course, applies only to the portion of the alley where the railroad track is constructed along the center thereof.

We have examined a good many authorities which shed more or less light upon the questions at issue, among which are the following: 22 A. L. R., 145, where an extensive note may be found; 2 A. L. R., 1404, in which the annotation is confined to cases involving electric railways, where the decision turns upon the carrying of freight; Chicago, Lake Shore & South Bend Ry. Co. v. Guilfoyle, 198 Ind., 9, 152 N. E., 167, 46 A. L. R., 1465.

I cite also Chambers v. Cleveland & South Western Traction Co., 5 C. C. (N. S.), 298, 17 C. D., 193, affirmed without report in 73 Ohio St., at page 348, 78 N. E., 1122. This case, however, did not involve a track in the municipality.

The fact that the railroad company has the consent of the municipality by ordinance to occupy the alley for the spur track does not deprive the plaintiffs of their remedy.

For the reasons given, the railroad company will be enjoined from using the spur track until the right shall have been acquired from abutting property owners, as was done in Trustees of Cincinnati Southern Ry. Co. v. McWilliams, 18 Ohio App., 225.

Decree for plaintiffs.

Williams and Lloyd, JJ., concur.  