
    Schaaf et al. v. The Cleveland, Medina & Southern Railway Company et al.
    
      Interurban railroad on sidle of public highway — An interference with easement and, right of way of abutting farms, when— Conditions similar to those of steam railways — Effect of construction of electric plant in connection with such railway —Plaintiff entitled to injunction, when.
    
    1. 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 run-an unlimited number of cars 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 plaintiffs’ easements and rights therein, not substantially different from those that are imposed by the construction and operation of steam railroads, under like conditions.
    2. The construction and operation of an electric plant in connection with such railway, and on the same side of the traveled public roadway, for supplying heat, power, and light to consumers for profit, constitutes another additional burden which is an invasion of the plaintiffs’ property rights.
    3. The plaintiffs are entitled to injunction, in such case, to prevent the construction and operation of such railroad, and of such electric plant, or either, until compensation and damages shall be assessed them in a proper appropriation proceeding, and paid, or secured to be paid.
    (Decided April 22, 1902.)
    
      Error to the Circuit Court of Cuyahoga county.
    The plaintiffs in error brought their action in the Cuyahoga common pleas against the Cleveland, Medina & Southern Railway Company and John Davis to enjoin the construction and operation of a railroad along and over a public highway, known as the Wooster pike. The plaintiffs are the owners of improved farms which abut on this public road and their titles in fee extend to the center of the road. They reside on these farms and in connection therewith make all the uses of the road that abutting proprietors are accustomed to do. The road has been improved and constitutes their means of access to their lands, and they have never consented to the construction of the railroad thereon.
    The petition alleges that “they are the owners of and are seized as of estates in fee simple of certain, tracts of land located in Middleburg township, Cuyahoga county, state of Ohio, and which tracts of land abut on the western side of what is known as the Wooster pike, which is a road or highway dedicated to public use for the purpose of a road or highway;, that these plaintiffs are the owners of the fee to the center of said road on the portion of said road upon which the lands of these plaintiffs abut subject only to the right of the public use as such road or highway; that the board of commissioners of Cuyahoga county have heretofore granted to another corporation, to-wit: The Wooster, Medina & Cleveland Street Railway Company, the right of way in said Wooster pike-so far as the said board of commissioners have power to grant the same to construct and build a railway over and along said Wooster pike and especially on the portion of said Wooster pike upon which the lands, of the plaintiffs above described directly abut and the title to which is in these plaintiffs subject only to said public uses as above set forth; that the defendant, The. Cleveland, Medina & Southern Electric Railway Company, claims to be entitled to all the rights of the said, The Wooster, Medina & Cleveland Street Railway Company, so acquired from said board of commissioners; that the said defendant railway company without having acquired the right from these plaintiffs or under the statute in such cases made and provided, is about to and unless prevented by order of this Honorable Court, will, through its agents, contractors and servants wrongfully and unlawfully erect large wooden poles on the land of these plaintiffs along said highway for the purpose of supporting electric trolley wires to be used in connection with, the proposed electric railway, and the said defendant railway company also threatens, through its agents, contractors and servants, to proceed to lay and construct a railroad suitable for the use of operating electric cars on the side of said highway, the title to which is vested in these plaintiffs as above set forth; and when the said railroad is completed the defendant railway company through its agents and servants will operate and run over said railroad electric cars at a very high rate of speed, said cars it is proposed to have carry passengers and freight from various points through the counties south of Cuyahoga county.
    “Plaintiffs further say that the defendant railway company has entered into a contract with the defendant, Joseph Davis, for the furnishing and erecting of said wooden poles, and the said defendant, Joseph Davis, has already distributed the poles along the lands of these plaintiffs and is about to erect and set. them along the lands of these plaintiffs in the manner above set forth.
    “Plaintiffs further say that the erecting of said poles and the construction of said railroad and the laying of the track’s along said highway as contemplated in the manner above set forth and as provided for in the grant of the right of way by the said county commissioners, and the running of the electric cars thereon, will have the effect of seriously interfering with plaintiff’s enjoyment of their property above described and will result in great diminution of the value thereof and of the value of the private rights and easements which they now respectively have in said highway, and especially will seriously interfere with their means of access to and from their respective tracts of land and will render it absolutely impossible to hitch their teams along that side of the highway or to allow them to stand in said highway.
    “Plaintiffs further say that such contemplated use of the said highway by the said defendants in the manner hereinbefore set forth is an essential and great diversion of the said property to uses and ■ purposes other than those for which it was acquired by the 'public use-as to accumulate materially additional burdens upon the lands and as to destroy and impair the incidental rights of the plaintiffs appurtenant to their lands on said highway and that the damages resulting therefrom will be irreparable, and that said defendant railway company is insolvent and unable to pay its obligations or any judgment for damages which these plaintiffs might recover against them by virtue of the premises.
    “Plaintiffs further say thát these defendants have been notified by all the plaintiffs herein or by their agents that these plaintiffs objected to the proposed acts of the defendant, Joseph Davis, has only accelerated the work and has been laying telegraph poles by day and night and without any right whatsoever to do it, is unlawfully distributing them along the front of the land of these plaintiffs, and if the court should require any notice to be given of an application for a restraining order in this case such notice will only give the said defendant, Joseph Davis,, and the said defendant railway company opportunity to erect all of said poles before the said restraining order can be granted on notice to these defendants.
    “Wherefore, plaintiff prays that an order may issue from this Honorable Court forthwith restraining these defendants, their officers, agents, contractors and servants from further carrying -on any portion of their work in the manner above set forth and that such order be issued without notice to these defendants for the reason that the object for which this injunction is prayed may in great measure be defeated by the giving of any notice to said defendants and that on the final hearing of this case a perpetual injunction may be granted forever restraining these defendants or either of them or their officers, agents, contractors or servants from carrying on any portion of said proposed work and plaintiffs ask for such other and further relief as in good conscience they may be entitled to.»
    The only material part of the answer is a denial that the building of the railway will interfere with plaintiffs’ enjoyment of their property, or depreciate its value, or become an additional servitude upon the highway.
    
      The circuit court dismissed the petition and rendered judgment against the plaintiffs for costs, from which error is prosecuted here. That court made a finding of the facts, the substance of which will appear in the opinion.
    
      Messrs. Herrick & Hopkins, for plaintiff in error.
    Whatever the law may be in the other states the rule is well settled in Ohio that the rights of the public and the abutting owner in the highway are entirely separate and distinct from each other. Crawford v. Delaware, 7 Ohio St., 459.
    The law is also well settled that the rights and interest of the abutting owner are greater in the country highway than in the city street. Elliott on Roads and Streets, pp. 299, 308; Thompson on Highways, p. 6; 2 Dillon Munic. Corp. (3 ed.), 686.
    The public has a right of passage and the right to improve and use the public highway in the manner and for the purposes contemplated at the time it was established. Daily v. State, 51 Ohio St., 348.
    The abutting owner has the right to all uses of the land not inconsistent with this right of passage and improvement, 3 Kent, Sec. 432.
    He has the right to cultivate and raise crops on so much of his side of the highway as is not actually used for travel.
    He has the right to plant, raise arid enjoy trees on that portion not used for travel.
    He has a right to the herbage and may graze his cattle thereon; and may maintain trespass against, others who put their cattle there to graze. Angelí on Highways, Sec. 303.
    
      He has the right to store lumber, wood and building materials on such portion. Clark v. Fry, 8 Ohio St., 358. Also to hitch horses.
    He has a right to the quiet enjoyment of his premises and not to be interfered with by unusual disturbance, such as shooting, organ grinders, etc. Regina v. Pratt, 4 El. & Bl., 860; Adams v. Rivers, 11 Barb., 393.
    Also to lay drains and water conduits across the highway, restoring highways to safe condition of travel. Angelí on Highways, Sec. 303.
    The most important right of the adjacent owner is that of a free and convenient “easement of access” to and from the highway at all points along his frontage. Street Railway v. Cumminsville, 14 Ohio St., 523; Branahan v. Hotel Co., 39 Ohio St., 333.
    The following acts have been held to be infringement of the rights of an abutting owner in a country highway:
    Laying gas pipes in such highway. Bloomfield Gas Co. v. Calkins, 62 N. Y., 386.
    Running a shafting across the road under a bridge. Estey v. Baker, 48 Me., 495.
    Shooting at a bird from the highway by one passing along it. Regina v. Pratt, 4 El. & Bl., 860.
    Standing in the highway and using vulgar language to the owner. Adams v. Rivers, 11 Barb., 390.
    Laying water pipes in the country highway. 7 Del. Co. Rep. (Pa.), 373.
    Erecting electric lighting wires and poles. Palmer v. Larchmont Elec. Co., 6 N. Y. App. Dec., 12.
    Using highway as a landing place for a ferry. Chambers v. Furry, 1 Yeates, 167.
    Constructing trolley railroad. Osborne v. Railway Co., 9 Pa. Sup. Ct., 632.
    
      Erecting telephone poles and lines. Chesapeake & P. Phone Co. v. Mackenzie, 28 Am. St. Rep., 219.
    Cutting timber along the highway. Roberts v. Failis, 1 Cow., 238.
    Cutting down a hedge. Phifer v. Cox, 21 Ohio St., 248.
    Erecting and maintaining a telegraph line. Daily v. State, 51 Ohio St., 348; Cooley on Const. Limit. (4ed.), 680.
    The foregoing enumeration of violations of the rights of the abutting owner in a country highway abundantly proves the jealous care of these rights which our courts have heretofore exercised. It is submitted that they also materially assist in the decision of this case. Railroad v. Williams, 35 Ohio St., 168; Daily v. State, 51 Ohio St., 348.
    The road will be a thoroughfare and not a mere local convenience. Its very name indicates that it is a thoroughfare. Cooley on Const. Limit. (4 ed.1), Sec. 556; Railway Co. v. Heisel, 38 Mich., 62.
    A street railway is also intended to carry passengers only and not .freight. Williams v. City Electric Ry. Co., 41 Fed. Rep., 556; Booth on Street Railways, Secs. 1 and 90; Elliott, Roads and Streets, p. 557; Carli v. Street Ry. Co., 28 Minn., 373.
    The only point of material difference is in the motive power, but the rule seems to be well established that the question as to whether or not the burden upon the highway is increased depends not upon the motive power used but upon the character of the use as well as the purpose and manner of construction. Nichols v. Railway Co., 87 Mich., 361; McQuaid v. Railway Co., 18 Ore., 237.
    
      In no sense of the word, therefore, can the. defendant’s railway be treated as a street railway, but it should rather be classed as a steam railway. It is therefore submitted that the rule laid down in Railway Company v. Williams, supra, is applicable to this case.
    It would also seem that the ruling of the Cumminsville case is applicable here; that a track laid with T rails above the grade of the street, and next to the curb line would be a much greater obstruction to the convenient access to the land than the track described in the Cumminsville case.
    
      Mr. Cr. B. McKay and Messrs. Newman & Tillman, for defendants in error.
    The facts stated by plaintiffs in error in their brief are correct with this exception, that the defendant railway company did not propose to construct its roadway right next to the curb line, but were to construct it in accordance with the terms of -their franchise and as directed by the county commissioners. There was no evidence to show that a T rail was to be used, the president of the company, Mr. Joseph W. Roof, having testified that the kind of rail to be, used had not been decided upon.
    It is admitted by all parties that this is a public highway and has been used as such for many years; that this railway company had obtained the consent of owners of more than a majority of all the feet front along said highway; that permission had been given them by the county commissioners to occupy said highway and every necessary step had been taken by the said railway company to comply with the statutes, of Ohio.
    
      There is no dispute between counsel in this case as to the law, as all the cases cited in the brief of plaintiffs in error were thoroughly gone into before the circuit court, and in the opinion of the counsel for defendants in error the law is well established as stated in Street Railway v. Cumminsville, 14 Ohio St., 523; Railway Company v. Williams, 35 Ohio St., 168; Railway Company v. Lawrence, 38 Ohio St., 41. It is simply a question of fact for the court to determine as to whether or not any of these plaintiffs in error have been deprived of any right or been materially injured.
    There being no dispute as to the law, and it being well established in this case, defendants in error claim that this case must be decided upon the facts brought out in the hearing. After a careful hearing the common pleas court dismissed the case begun by plaintiffs in error and refused to grant an injunction, deciding that their right of ingress and egress would not be interfered with; that no incidental right would be impaired and that plaintiffs in error would not suffer any material injury. The circuit court affirmed that decision after a long and careful hearing of the facts, and specifically found that no right of the plaintiffs in error was being materially injured and refused to grant an injunction against defendants in error, and the same facts are presented to this court as were presented to the common pleas and circuit courts.
    In no manner are their rights of ingress or egress interfered with, as they could not enter upon any of the farms along that highway before first constructing a bridge across this ditch, running the entire frontage of the farms along this highway; no shade trees will be interfered with or injured in-any ntan:; ner. The photographs attached to the affidavits as-exhibits, will show the position and location of the poles. Especially in front of the blacksmith shop of Hutchinson, the court will notice the manner,,,in which bridges had to be constructed across this deep ditch so that access could be had to the farms. ,
    We would refer the court specifically to the finding of facts of the circuit court, section 3, to show, the width of the highway and the location of this pro-, posed railway, and by reference to the photography, attached, the court will see that no right of the.plain:, tiffs in error has been interfered with , in any maim ner, will not prevent them raising crops, the line will, not interfere in the least with any of their trees, .their cattle can graze at large over acres of ground, they could not now hitch their horses in this ditch, there, would be no occasion for the loading or unloading, pf. wagpns in the ditch, fer they could not drive a wagon, in there now without upsetting.
   Williams, C. J.

The circuit court found, as the. plaintiffs allege-in- their petition, that they are the owners of improved farms, on which they reside, that front and abut for considerable distances on the public road in question, and that they own the fee of their lands to the center of the road. This road has long been used by them as their means of ingress and egress to and from their farms, and for all the purposes of a public highway. That: “The said highway upon the westerly, side of which these plaintiffs’ lands are located, is sixty feet wide from fence to fence, the width, of the sidewalk, between ditch, and.fence on each side is eight feet; and the.-width of;the roadway as established is thirty-two feet; upon each side of said roadway and immediately adjacent thereto is a ditch six feet wide, from two to three feet deep, the entire frontage of plaintiffs’ land except seventy-five feet in front of the house on the land of said John Hurst, and about forty feet in front of the blacksmith shop on said land, and except also about 125 feet in front of the house on Daniel Hutchinson’s property, in all of which said places said ditch has been tiled and filled in, and upon the easterly side of said traveled roadbed immediately next to the ditch is a brick pavement eight feet wide. And upon the extreme westerly side and edge of said roadway, defendant railway company, purposes to construct a railway by laying ties, and placing thereon T rails, such as are ordinarily used by suburban railways, the nearest part of which shall not be nearer to the center of said roadway than eleven feet in accordance with the terms of said franchise, and nineteen feet from the nearest edge of the brick pavement upon the extreme opposite side of the said traveled roadbed, and to maintain upon the westerly side of said highway poles for the carrying of trolley wires, feed wires and .vires for the carrying of electric power to be sold to parties desiring electric light, heating or power, and to operate on said railway, cars propelled by electricity and further to carry upon same passengers and freight.”

That the railway company having presented to the board of county commissioners the written consent of the owners of more than half of the feet front of the lands abutting upon the public highway, but without the consent of any of the plaintiffs, obtained from that board the grant of a franchise to construct, lay, maintain and operate for a period of twenty-five years, along and over this public highway, in all respects according to the plans and purposes of the railway company as hereinabove stated and set forth, “a single track street railway, with all suitable convenient side tracks, switches, turnouts, turntables, stations and appurtenances. Also for the right to construct and maintain all necessary wires to connect its feed wires with adjacent property along the route therein petitioned for, necessary to supply light, heat or power to such adjacent property and all other things necessary to operate a street railway with electricity or other approved motive power acceptable to the county commissioners. The right herein granted is, to operate a street railway for the transportation of passengers, baggage, packages, boxed and barreled freight, farm produce, express matter, and United States mail.”

The grant fixes a "time within which the railway shall be commenced, and completed, requires cars to be run over it “as often as three times each way daily,” and contains some regulation relating to the fare. The board of commissioners reserved the right to grant similar franchises to other companies.

The court announced as its conclusion of law, that, upon this state of facts the plaintiffs were not entitled to the relief they sought, and rendered judgment accordingly. In that conclusion we are unable to concur. In our opinion the construction and operation of the railroad as authorized and proposed, must necessarily constitute a serious obstruction to the plaintiffs’ use of the public highway as a means of access to their farms, and an additional burden on the highway not contemplated in its originally intended uses. The whole burden of the railway, with all of its authorized appurtenances, is thrown entirely upon the side of the public road next to the plaintiffs’ lands, and between them and the traveled part of the roadway. The nature of that burden is not different in any material respect from that imposed by the construction and operation of a steam railroad. The difference, if any, is merely in the degree of the burden and not in its character; and can scarcely be less, in any degree. It may become more onerous and injurious. As shown by the findings of the court, the railroad is to be built and maintained on the “extreme westerly side and edge” of .the traveled way of the public road, that is between the traveled roadway and the plaintiffs’ lands, and the tracks are to be laid with the ordinary “T” rails which project some distance above the ties —the same kind of rails usually' employed in the construction of steam railroads through the country. While public crossings and extensions of farm lanes, are required to be planked to a certain extent, it often becomes convenient and necessary to drive onto and off the traveled roadway, elsewhere, with loaded and empty vehicles, to which this railway will present the same obstructions, and cause the same hinderance, delay and annoyance that attend the crossing of steam railroads. Then, this railroad company is authorized to construct and use, on the same side of the public road between its traveled way and the plaintiffs’ lands, “all suitable and convenient side tracks, switches, turnouts, turntables, stations and appliances,” without limit to their extent, other than as the company may deem them convenient and suitable. And, in addition to this, the company is given authority to erect and maintain on the same side of the public roadway, and next to the plaintiffs’ lands, all poles, which are of large dimensions, and all wares and other appliances, necessary to enable it to operate an electric plant for supplying light, power and heat to consumers, for profit. Besides, this company is authorized, not only to carry passengers, but also to transport over the road, “baggage, packages, boxed and barreled freight, farm produce, express matter, and United States mail;” and, though it is required to run cars over its road at least three times each wray daily, it is not limited as to the number of cars, or trains, for freight or passengers, or both combined, or the size or make-up of the trains. All things considered, it is reasonably certain from the facts found that the practical operation of such a road, within its capacity, must necessarily produce annoyance and inconvenience to the plaintiffs, and interfere with their property rights as abutting owners, of the same general character that result from the operation of steam railroads, and become an additional burden on the public highway, and taking of the plaintiffs’ property, in the same sense. The law' governing the rights of parties in such cases, is w'ell settled in this state, and wre need only to refer to the case of Railroad Co. v. Williams, 35 Ohio St., 168, for a clear and satisfactory statement of the law. It is there held that:

“As between the public and the owmer of land upon w'hich a common higlrway is established, it is settled that the public has a right to improve and use the public highwmy in the manner and for the purposes contemplated at ' the time it was established. The right to improve includes the pow'er to grade, bridge, gravel or plank the road in such a manner as to make it most convenient and safe for use by the public, for the purposes of travel and transportation in the customary manner, which is w'ell understood to be by the locomotion of man or beast, and by vehicles drawn by animals, without fixed tracks or rails to which such vehicles are confined when in motion. These constitute the easement which the public acquires by appropriating land for the right of way for a highway, and these, in legal contemplation, are what the owner is to receive compensation for when his land is appropriated for this purpose. The fee of the land remains in the owner; he is taxed upon it; and when the use or easement in the public ceases, it reverts to him free from incumbrance.

“In the exercise of the right of eminent domain, the state, through the general assembly, may delegate to a railroad corporation the power to appropriate a right of way for its road along and upon a public highway. But the appropriation for this purpose cannot be constitutionally made without making compensation to the public for the injury thereby occasioned to its easement in the highway; and also making compensation to the owner of private property taken for the use indicated. In such case, the rights of the public, and the rights of the owner, are entirely distinct; and the consent, express or implied, of one to the appropriation, would not bind or affect the rights of the other. But we are not dealing with the public right. It has already been said that the plaintiff, in the probate court, was the owner in fee of the land covered by the highway. This was her private property within the meaning of the constitution, subject only to the easement of the public therein. The nature and extent of this easement was above shown. The railroad company, by occupying the highway, constructing its track, and operating its trains thereon by steam motive power, completely diverted the highway from the uses and purposes for which it was established. This new use to which the highway has been diverted, imposes burdens on the land that áre entirely different from, and in addition to, those that were imposed by the highway. The right to so divert the use, and impose additional burdens on the land, could only be acquired by the corporation by agreement with the owner, or by appropriating and making compensation therefor, in the mode prescribed by law.”

We are aware that decisions in other states may be found which do not entirely agree with ours; but the Ohio rule above announced has been established for many years, going back to Crawford v. Delaware, 7 Ohio St., 459, and has never been departed from. We are entirely satisfied with it.

And it is obvious also that within this rule the construction and operation of an electric plant, with its appliances, in connection with such railway, and on the same side of the traveled public roadway, for supplying heat, power and light to consumers for profit, constitutes another and additional burden which is an invasion of the plaintiff’s property rights. The relative rights of an owner of land and of a private electric company which seeks to erect and maintain electric poles and wires in a public way, on which such land abuts, without the owner’s consent, or without the compensation guaranteed to him by the constitution, were thoroughly considered in the case of Callen v. Columbus Edison Electric Light Company, 66 Ohio St., 166, ante.

The right of the owner to injunction against the threatened invasion and subjection of his property ngnts for the benefit of the corporation in such case is so logically and satisfactorily maintained in the opinion of Spear, J., that the citation of other authorities is not deemed necessary. The case on that subject is equally decisive of this one. '

It being ascertained that such an additional burden as • has been stated, will be imposed on this public highway and the plaintiffs’ abutting right and property, the extent of the burden and its effect on the value of the property, including the damages which the owners will sustain, are not questions for the determination of the court, but belong, under the constitution, to a jury, unless that mode of assessment is waived. Nor, is it any objection to the relief sought in this case that the plaintiffs might'have brought ah action for damages. They are entitled to injunction against the threatened invasion of the property rights. That is the primary remedy, long established, and best adapted to the preservation of their rights. They are not required to wait until the threatened injury is done, and then undergo the vexations and expense of a protracted litigation that in the end may afford but incomplete and inadequate relief. It was the primary duty of the railway company, before attempting to take from the plaintiffs, property rights which the constitution guarantees to them, to institute in a proper tribunal the necessary appropriation proceedings to obtain an assessment of compensation and damages to them. The company cannot interpose its violation of that duty, as a defense to the plaintiffs’ injunction.

Judgment reversed and judgment for plaintiffs in error for an injunction against the construction and operation of either the said railroad or electric light plant; and, in case the defendants in error have commenced- work on either, it is ordered and decreed that within thirty days from the entry of this decree they remove all material and obstructions placed in the public highway by them, and restore the said public highway to the condition it toas in at the time and before the commencement of said work.

Burket, Spear, Davis and Price, JJ., concur.  