
    The Detroit & Ironton Rd. Co. v. Wahl et al., Board of County Commrs.
    (Decided June 27, 1927.)
    
      Mr. George 8. May, and Mr. Wallace Visscher, for plaintiff in error.
    
      Mr. George A. Meekison, prosecuting attorney, for defendants in error.
   Lloyd, J.

In the court of common pleas plaintiff in error and defendants in error were plaintiff and defendants, respectively, and will be so called here.

Plaintiff has procured a right of way extending from Durban, Mich., to Malinta, Ohio, and is constructing a line of railroad thereon, which, as planned, will cross twelve public highways in Henry county. By its petition filed in the court of common pleas plaintiff seeks the right to cross these highways at grade. The railroad so in process of construction is subsidiary to the Detroit, Toledo & Ironton Railroad Company, with which, when completed, it will connect. It is stated in the briefs of counsel that the defendants consented to the crossing by plaintiff of eleven of these highways at grade, and the record shows an order to have been made by the court permitting them to be so constructed. The court refused to permit plaintiff to cross at grade a highway known as the Liberty Center road, and the plaintiff seeks to have this court reverse the order so made.

The state of Ohio is traversed by many lines of railroad, steam and interurban, and many public highways, and there are many grade crossings where these railroads and highways intersect. Each year the state is expending large sums of money to improve these highways, and the travel thereon is increasing yearly, being used, not only for ordinary purposes of travel, but also by many motorbus and truck transportation companies, and it is generally recognized that these crossings are exceedingly dangerous. The white crosses erected at many of them silently testify to the necessity and expediency of eliminating instead of adding to those we now have. The attitude of the state in relation thereto is most aptly expressed in Section 8895 of the General Code, which provides:

“Except as hereinafter provided, all crossings, hereafter constructed, whether of highways by railroads, or of railroads by highways, shall be above or below the grade thereof.”

It is plain, therefore, that the policy of the state is to not permit grade crossings unless some exceptional reason exists therefor, and the power to determine when such reason exists is vested by legislative enactment in the court of common pleas.

The proceedings in the instant case are based on the provisions of Section 8896 et seq., General Code. Section 8896 provides:

“Every railroad company building a new line of road, under its charter powers, across a highway, shall construct it above or below the grade of the highway, unless in the manner hereinafter provided, allowed to build it at grade. Such company may exercise the power contained in its charter and the general laws, for altering the grade and location of highways in order to avoid grade crossings.”

Section 8898, General Code, provides for the filing of a petition in the common pleas court, and Section 8899 provides what the petition shall contain. This latter section, in so far as applicable to the question we are considering, reads as follows:

“If satisfied that such construction is reasonably required to accommodate the public, or to avoid excessive expense, in view of the small amount of traffic on the highway or railroad, and considering the future uses to which the highway may be adapted, or in view of the difficulties of other methods of construction, or for other good and sufficient reasons, the court shall make an order or orders permitting such crossing at a grade or diversion to be established.”

So it is evident that the responsibility for the determination of the question is vested in the court of common pleas, and that such an order cannot and should not in any case be made by consent of the public authorities and the railroad seeking the privilege, but by the court, upon such evidence as may have been submitted in relation thereto.

In the instant case the court of common pleas was not satisfied that the establishment of a grade crossing at the point in question would be conducive to the public welfare, but evidently was satisfied that it would be dangerous, and therefore should not be permitted. “To satisfy” means to free the mind from doubt and uncertainty, and signifies something more than a belief founded on a preponderance of the evidence. The language thus used in this statute emphasizes the attitude of the state toward the establishment of grade crossings, and an examination of the record in the instant case fails to convince this court that the court of common pleas erred in making the order of which plaintiff complains.

If this court were invested with jurisdiction to do so, the order of the court of common pleas would. be affirmed. But, upon examination of the record, we find that the journal entry evidencing the order so made by the trial court was filed in the office of the clerk of courts on January 31, 1927. The petition in error was filed in this court on Tuesday, April 12, 1927, more than 70 days after the entry of the order. Since a petition in error must be filed ■within 70 days after the date of the filing of the entry of the final order or judgment complained of, it becomes at once evident that this court has not acquired jurisdiction to review the questions here involved.

The petition in error will therefore be dismissed.

Petition in error dismissed.

Richards, P. J., and Williams, J., concur..

Judges Richards, Williams and Lloyd, of the Sixth Appellate District, sitting in place of Judges Crow, Hughes and Justice, of the Third Appellate District.  