
    OCCUPATION OF STREET WITH RAILWAY TRACKS.
    Circuit Court of Hamilton County.
    Cincinnati Gas Coke, Coal & Mining Co. v. Baltimore & Ohio Southwestern Railway Company.
    Decided, July, 1911.
    
      Streets — Two Railway Tracks in a Street Not an Exclusive Occupation Thereof — Removal of Track from Center Toward Curb of Street.
    
    1. The placing of two railway tracks on a street from thirty-six to. forty feet in width between the curbs does not amount to a destruction of or an exclusive occupancy of the street, and injunction against' such use of the street will not lie upon the petition óf abutting property owners, where an action by the railway company to condemn their rights, in the street in pending^
    2. In the case at bar-the trustees of.the Cincinnati-Southern -Railway . - have -ample power, to move -the -B. & O. S. W. Railway track from the center.jto one side of the street in order that its own track may he laid on the other side.
    ' Tbé Trastees of the Cincinnati Southern Railway acting under Section 3 of ‘the supplemental Southern Railway Act’ of May 4, 1869 (70 Ohio Laws, 139), resolved, in 1903, to'lay a track on Front street in. this city for the purpose of connecting its line with, its freight depot at' Nine street, and received the assent of the board of public service, successor of the board of public works of said city, thereto. In 1910 it passed a resolution condemning the rights of the abutting property owners on said street, for the purpose of laying said track, and to that end to move a track of the Baltimore & Ohio Southwestern Railroad, which was already in the street, "six feet to the southward, so that when the construction should be finished there would be two tracks in the street. The street is sixty feet wide in some places and sixty-six feet wide in others, and the roadway, from curb to curb, is thirty-six feet wide in places and forty feet wide in other places. The Baltimore & Ohio Southwestern Railroad entered into an agreement with the Trustees of the Southern Railway, consenting to the making of this alteration in the location of its track. The trustees then began a suit in the court of insolvency to condemn the rights of the abutting property owners along the street for the purposes aforesaid. The design of the trustees to change the location of the Baltimore & Ohio track appeared upon the face of the application to assess compensation. The abutting property owners then began this suit in the court of common pleas to enjoin the trustees from laying the track in Front street and from removing or altering the location of the Baltimore & Ohio Southwestern Railroad track.
    It was claimed by the abutters that the placing of two tracks in the street would amount to a destruction of the street and that this was beyond the power of the trustees, and that it was also beyond the power of the trustees to change the location of the Baltimore & Ohio Southwestern track, whatever might be the rights of the trustees with regard to the Southern Railway track. The court of common pleas found that although the trustees, under the act in question, would have a right to take the whole street, its proposed use did not constitute such a taking, but that the trustees did not have a right to alter the location of the existing-Baltimore & Ohio Southwestern Railroad track in the street, and granted an injunction against doing so, from which the trustees of. the Cincinnati ■ Southern Railway, took an appeal to the circuit, court,
    
      
      Pogue & Pogue, Strieker & Johnson, Albert Bettinger, Kramer & Bettman, Healy, Perris & McAvoy, Wm. C. McLean and Miller Outcalt, for plaintiff.
    
      Edward Colston, for the Baltimore & Ohio Southwestern Railroad Company.
    
      John W. Peck, for the Trustees of the Cincinnati Southern Railway.
    Smith, P. J.; Swing, J., and Jones, J., concur.
   The court feels that there is no need of further consideration of this cause. We are unanimous that no injunction should be granted and that the petition should be dismissed. We are of the opinion, in the first place, that the question presented here could and should be presented in the insolvency court.. If that is not so, we think there is no exclusive occupancy of Front street proposed, and that the trustees have full power to proceed as they are proceeding. As to carrying out the' contract between the trustees and the Baltimore & Ohio Southwestern Railroad Company, we. believe that the power of the trustees is ample; that in occupying Front street by the track of the Southern Railway, the trustees have ample power to move- the -Baltimore & Ohio track; and further, upon the evidence, the usage proposed is not an interference with the public use of the street as would destroy such use. • ■ .  