
    INTERURBAN SWITCH AN ADDITIONAL BURDEN.
    [Circuit Court of Lorain County.]
    Minnie C. Chambers v. The Cleveland & South Western Traction Company.
    Decided, October 8, 1904.
    
      Railways — Laying of an Interurban in the Highway — Switch an Additional Burden — Silence of Land Owner as to the Laying of the Main Trade — Not Consent to Lay a Switch — Constitutional Protection of the Land Owner — Limitation of Time for Completion of the Road — Injunction.
    1. Mere silence on the part of the landowner as to the laying of an interurban railway track in tbe highway passing through his land is not consent to the subsequent laying of a switch in said highway.
    2. An additional burden is imposed upon the land owner by the laying of such a switch, and where this is done without compensation being made therefor, or consent first obtained, a constitutional right of the land owner is violated and an injunction will lie upon his petition.
    3. The fact that by the terms of its franchise it is required that an interurban railway shall be completed within a given time, does not deprive the company of the right to thereafter lay additional switches, etc., but if thereby an additional burden will be laid upon property, the right so to do must first be acquired.
    Marvin, J.; Hale, J., and Winch, J., concur.
    The case of Minnie C. Chambers against the Cleveland & South Western Traction Company and others comes into this court by appeal from the judgment of the court of common pleas.
   The facts are that the plaintiff owns a farm in the township of Ridgeville, in Lorain county, lying on both sides of a public road, and having a frontage along said road, or rather extending from east to west a distance of more than 500 feet, through which the road runs. The plaintiff owns the fee of said road, subject to the rights of the public to use the same for a highway.

In 1895 a predecessor of the defendant company, being incorporated for that purpose, and having obtained from the commissioners of the county a franchise therefor, constructed an electric railroad, passing along this road through the plaintiff’s farm, and extending at that time from the city of Cleveland to the city of Elyria.

The certificate of incorporation of the company which constructed the road, authorized .the construction of an electric railroad, or a railroad using electricity for motive power, with single or double tracks, with such side-tracks, turnouts, offices, depots, shops, telegraph lines, telephone lines, switches, poles, wires, devices, and all other necessary appliances for the operation of an electric railroad. And also authorized the railroad, or provided that it was organized and formed for “the purpose of transporting passengers, packages, express matter, United States mail, baggage and freight over and upon said railroad.”

It was also formed “for the purpose of generating electricity by steam or water power, and the selling of the same for light, Peat and power purposes, and the owning of all necessary real estate to carry out said objects.”

The franchise granted by the commissioners also provided *1 that the railroad must be constructed to the satisfaction of the •county commissioners, with a single track, with all suitable and convenient side-tracks, switches, turnouts, turn-tables and stations. And have the right to construct and maintain all necessary wires to connect its feed wires with adjacent property along the route herein petitioned for, necessary to supply light, heat or power to such adjacent property and all other things necessary to operate a first class street railway with inanimate power other than steam; poles for said railway to be located on the opposite side of the track from the traveled roadway, except when it may be necessary to locate a double line of poles at opposite sides of the street, such location to be decided by the commissioners. ’ ’

It also provided that said railway might be used “for the transportation of passengers, baggage, freight, express matter and United States mail.”

Along this highway upon the plaintiff’s premises a main track was built in 1895, on the south side of the traveled roadway. Plaintiff gave no express consent to the construction of the road, nor did she make any objection or protest to the construction of said main track, and the same has been operated from 1895 or 6 up to the present time.

In October, 1903, the defendant, in the night time, commenced putting in a switch on the south side of this main track, along the highway running through the premises of the plaintiff. Immediately upon the commencement of the work, or immediately upon notice being received by the plaintiff, which was almost immediately after the work began that night, she protested and denied the right of the defendant to construct this switch, and did all in her power to prevent the construction of the switch. She sought for an injunction from the court very shortly — immediately, as soon as she could — to have the work stopped.

The switch has been completed, and is something more than 300 feet in length across her premises in the road, and the company is now operating that switch. The plaintiff prays that the defendant be enjoined from operating the switch, and by a mandatory order be required to remove the switch which has been put down.

As has been said, no consent of any kind has been given by the plaintiff to the construction and operation of this railroad, except her silence in letting the main track be constructed and operated.

'Does this carry with it consent to the construction of this switch? On the part of the defendant it is said that it carries with it the right of the construction of this switch, because the articles of incorporation and the franchise from the county commissioners, under which the defendant is acting, authorized the construction of side-tracks, turnouts, switches, etc., as they should be necessary for the operation of the road. It is said that this switch is necessary for the proper operation of the road, and that therefore when she consented by her silence that the main track be laid along her premises, she impliedly consented that such switch, turnout or other device as should be necessary for the opreation of the road should be constructed. If that is so, it would seem to carry with it consent on her part, if it became necessary to put up a power-house, which by their charter and by their franchise they were authorized to put up at all necessary places, should be put up here.

If this plaintiff had consented in writing that the main track might be built along the highway through her premises, and acting upon that the defendant had constructed this main line through her premises along this road, it can hardly be claimed that that consent would have given them the right, whenever it became necessary for the proper operation of the road, to lay a switch or any additional track or put in any additional thing other than was necessary for .the operation of that - main line along this road. Is it possible that by standing by and consenting by silence that this main line be constructed and operated, she gave a broader consent than if she had given in writing a consent that exactly that thing might be done ? It seems to answer itself. It seems difficult to understand how it can be said that one by tacit consent, in seeing the work done upon her premises, gives a greater consent, gives to the corporation laying the track a greater right than would have been given if consent to do exactly the same thing had been given in writing.

It is urged on the part of the plaintiff that since by the franchise it is provided that the road shall be completed and in operation by a given date, which time has long since past, that under the franchise no switch could be laid anywhere that was not laid at the time the original main track and switches were laid.

We think the ease of Railway Company v. Daniels, 16 O. S., 390, answers that, and answers it against the plaintiff. There it was held that the railroad company, a steam railroad company, which had a franchise to put in a railroad with necessary turnouts, switches, etc., in the city of Toledo, might condemn property and extend its turnout up to a certain mill property. But we -think also that that same case clearly shows that in order to make such extension the company must acquire right to the property, if it is property that it is taking.

We are cited to the ease of Cincinnati & Indiana Railroad Company v. Zinn et al, 18 O. S., 417, -as affirming the proposition in the case laid down in the case of Railway Company v. Daniels. It simply says “that the other questions involved in this case are determined by the case of The Railway Company v. Daniels.” Nothing more is said about it.

Numerous authorities are cited aud fully sustain the proposition, that where one stands by and makes no objection to the use of his property by a railroad company .or other public corporation, whereby large sums of money are expended, can not be heard later to complain of such use. But cases cited in the brief of defendant, and so far as we know everywhere, the authorities go no further, than that if one has given consent that the things be done which they have stood by and permitted to be done, they can not- later be heard to complain of its use.

Considerable was said in argument that the putting down of this switch was not putting an additional burden upon the prop-' erty, and authorities are cited in support of that proposition. Those authorities, some of them at least, were cited and read over to two members of this court sitting as judges in chambers, and convinced us that this was not an additional burden, and we so held. But that case went to the Supreme Court (the case of Schaaf v. The Cleveland, Medina & Southern Railway Company), and the Supreme Court said we were wrong; and now without regard to what the authorities are outside of Ohio, the latest authority of the Supreme Court of Ohio on that subject is the case before mentioned, which is found in the 66 O. S., at page 215.

It was urged here in argument that the two cases are not alike, and some stress was laid upon the proposition that in the case of the Medina railroad it was a paper railroad only, never had been built; but it was to prevent the building of it along the premises of the plaintiff in that case, because it would be a burden upon his property, that the suit was brought. And the court said in the first paragraph of the syllabus (of course the case is familiar to counsel upon both sides, .but I do read it) :

“The construction and operation of an interurban railroad laid with T rails, entirely on the side of a public highway next to the abutting improved farms owned and occupied by the plaintiffs, and entirely between their lands and the traveled part of the highway, the company having authority to fun an unlimited number of ears and trains for the carrying of passengers, and the transportation of freight, express matter and government mail, is an additional burden on the public highway and obstruction to and interference with the plaintiff’s easement and rights therein, not substantially different from those that are imposed by the construction and operation of steam railroads, under like conditions.” (Then follows the construction and operation of an electric plant etc.).

D. J. Nye and C. G. Washburn, for plaintiff.

E. G. and H. C. Johnson and G. W. Gollister, for defendant.

But that language laid down as the law in the syllabus, it seems to us settles this case, and settles it in favor of the plaintiff. An additional burden has been imposed upon the plaintiff by the laying of this switch.

It is said she has a complete remedy at law. It is no more true that she has a complete remedy at law than she would have a complete remedy at law if they went through one of her fields, and the Constitution has disposed of that question, by providing as it does in Section 5 of Article XIII, as to the taking of a right of way. And in Section 19 of Article I, providing that private property shall not be taken for public use until compensation has first been made in money; or a deposit of money made.

We think it follows that as the defendant has taken the property, that is, has by putting an additional burden upon the highway taken the property of the plaintiff or established a right of way across her premises, without having first had the value of that property right in her determined by a jury or having paid it or deposited it, the injunction should and must be allowed.

Now this track is laid down, and the order will be that it be removed, unless within ninety days from this date the defendant shall have by some proper means obtained the right from the plaintiff to construct and operate this switch.  