
    (Hamilton County Court of Common IPeas. )
    
    C. P. & V. R. R. CO. v. VILLAGE OF HYDE PARK.
    A railroad company has an adequate-remedy at law where appropriation proceedings are brought to condemn land belonging: to the company abutting on its right of way.
    In such proceedings, jurisdictional questions must be determined before going to a-jury.
    In such proceedings it is probably the-better practice for the company to file an» answer.
    An action for an injunction against appropriating for street purposes a strip of ground* passing through the land of the company for 700 feet and abutting on its right of way.
    W. J. Davidson for plaintiff.
    Walter Burch, contra.
   JELKE, J.

I am of opinion that plaintiff has an adequate remedy at law for the matters complained of in the petition, in the appropriation proceedings in cause No. 110,330 of this court.

In Toledo & Ohio Oen. Ry. Co. v, The City of Fostoria, 7 O. C. C., 296, it was held that before a municipality can have a judgment of condemnation against a railroad company, certain jurisdictional facts must be determined by the court.

First — A passage of a resolution or ordinance by a city council by a two-thirds vote authorizing the appropriation.

Second — That the appropiration will not necessairly interfere with the reasonable use of such road or land by the railroad company.

Third — Notice of time, place and service.

I incline to the opinion that the question of the validity of the incorporation of the village of Hyde Park, the regularity of all the municipal legislation leading up to the institution of such appropriation proceedings are such jurisdictional questions, which the railroad company is entitled to have determined in said case before going to a jury. The second is the same defense raised by the railroad company in the case at bar. The procedure by which these issues are to be raised is not satisfactorily outlined in the statutes.

There is no express provision in the statutes for the filing of an answer; as to this the secs. 2232-2261, are silent. However, inasmuch as the court must determine these questions, if they can be most clearly presented by answer, I hold that the court can grant leave for the filing of such answer.

An answer was filed in the case of Southern Railway v. Haas et al., 42 Ohio St., p. 239, being proceedings under these same sections of the statutes,and while the propriety of filing such answer was not considered, the defense therein set up was considered ind passed upon by all the courts from'the common pleas to the supreme.

The injunction herein prayed for will therefore be denied.  