
    Arbaugh et al., County Commissioners, v. The Baltimore & Ohio Southwestern Rd. Co. et al.
    
      County commissioners — Elimination of railroad grade crossings —Procedure—Adoption of resolution insufficient — Negotiations with railroad necessary, when — Section 6956-3, General Code — Alteration of state highway — Subsequent board bound, when — Defective or irregular proceedings — Abandoned highway vacated, when — Power to re-establish or reopen — Court of equity or board of commissioners.
    
    1. Where a board of county commissioners adopts a resolution setting forth an alleged dangerous highway crossing under a.railroad, and the alleged necessity of establishing another undercrossing, at some other point, the mere adoption of such a resolution does not create an obligation on the part of the railroad company to proceed to construct such new undercrossing, but there must first be an effort to reach an agreement between the railroad company and the county commissioners upon the location of such new undercrossing and the plans and specifications for same; and a petition which merely alleges the adoption of such a resolution and the existence of a dangerous situation, without alleging any effort to reach an agreement, and without alleging a demand on the part of the commissioners or a refusal on the part of the railroad, does not state a cause of action under Section 6956-3, General Code.
    2. Where a board of county commissioners has made an order for the alteration of a state highway pursuant to statutory proceedings and such alteration has in fact been made and such altered highway opened and used for approximately twenty-two years, a subsequent board of county commissioners may not declare the former order void, notwithstanding defects or irregularities in the proceedings wherein such former order was made.
    3. Where such order has been made for the alteration of a state highway in the year 1897 and such altered highway opened for traffic, that portion of the original highway which was rendered unnecessary by the alteration automatically became vacated by the provisions of Section 4635, Revised Statutes, in force in 1897.
    
      4.'Where such alteration has been made and such road opened and used for a period of twenty-two years, a court of equity is without power upon the- petition of a board of county commissioners to reopen and restore to use such abandoned portion of a state highway, but such vacated portion can only be re-established through appropriate proceedings and orders of the county commissioners.
    (No. 17021
    Decided January 10, 1922.)
    Error to the Court of Appeals of Viliton county.
    This is an error proceeding from the court of appeals of Vinton county. In the court of common pleas of Vinton county it was a suit in equity to compel the railroad company to construct an undergrade crossing under its railroad at some point east of the place where said railroad crosses Raccoon creek, for the greater safety of highway traffic between Chillicothe and Parkersburg. The original petition alleges that on May 17,1919', the county .commissioners of Vinton county adopted a resolution stating that at the point where said highway now crosses said railroad on the east bank of a creek the road makes a sharp turn and by reason of the -steep bank of the creek and inability to see persons approaching in an opposite direction on the opposite side of the railroad, and by reason of the narrowness of the road at that point, the situation is dangerous, and, further, that the highway at the point where it crosses under the railroad is low and subject to inundation.
    The resolution contains the further recital that it is suggested that an undergrade crossing be established at some other point along the line of said railroad near the present undergrade crossing, but such point is not clearly indicated in the resolution or otherwise in the petition. After making the foregoing recitals at some length, the resolution calls upon the railroad company to join with the county surveyor of Vinton county to prepare plans and specifications and estimate the costs of an under-grade railroad crossing at such indefinite point if found practical by said railroad and said county surveyor, but if found impractical then that the railroad company and county surveyor prepare plans, specifications and estimated costs of an undergrade crossing at such point as deemed advisable by them to shorten the route of said highway and remove the dangers of travel, and that such plans, specifications and costs be submitted to the board of county commissioners within three months from that date.
    The resolution further asked that such plans and specifications specify the character and location of all piers and supports in said improvement, as required by Sections 6956-3, 8874, 8875 and 8876, General Code.
    It should be pointed out as a pertinent fact that throughout the resolution of the board of county commissioners the highway under the trestle at the bank of the creek is recognized as a legal highway. After copying the resolution verbatim the petition further recites that that portion of the road which goes under the trestle was established in the year 1896; and makes the claim that the proceedings whereby said alteration was made from the highway as it formerly existed were not in compliance with the statute and therefore null and void. The petition further recites that that portion of the highway which, was in use before the alteration is highly dangerous and unfit for public travel except for pedestrians and persons on horseback, because at the point where the railroad crosses the same the railroad is twenty feet above the level of the highway and approaches on both sides are too steep for any kind of vehicular traffic.
    A demurrer to the first amended petition was sustained and a second amended petition filed, to which several motions were addressed, hut the character of these motions does not appear in the record and we assume that they were motions to strike out certain matter. After these motions were disposed of and a demurrer to the second amended petition sustained, a third amended petition was filed in the court of appeals, and the case was finally disposed of in the court of appeals by sustaining a demurrer to the third amended petition. Error is now prosecuted to this court, it being urged in the petition in error filed in this court that the court of appeals erred in sustaining said demurrer. This is the only ground of error set forth in the petition in error, and the journal entry shows that that was the only matter ruled upon in the final entry in the court of appeals. We therefore look to the allegations of the third amended petition to ascertain whether a cause of action was therein stated.
    The third amended petition, with considerable repetition, alleges the dangerous condition of the highway passing under the trestle and also the impassable obstruction created by the railroad where it crosses the abandoned highway, and as an exhibit sets out all of the proceedings in the office of the county commissioners whereby the road was altered in 189'6 and 1897, and points out the alleged defects in those proceedings whereby it is claimed that they had no validity. No reference is made in the third amended petition to the resolution of May 17, .1919, neither is anything alleged as to efforts made to reach an agreement between the county commissioners and the railroad company as to the location of a new undercrossing, or of the plans and specifications and estimated costs of such an under-crossing, or of a failure of the county commissioners and railroad company to agree upon those matters as a basis for appealing to the court for relief. It will therefore have to be assumed that the county commissioners purposely omitted those allegations and that they have abandoned all claims to any relief based thereon.
    The prayer of the third amended petition is as follows: “That the said defendant company may be required by an order of this Court to restore the said highway crossing over the said railroad destroyed by the continued acts of the Marietta & Cincinnati railroad and those of the defendant company, by requiring the said defendant company to construct a proper undergrade crossing 60 feet wide and 20 feet high, either at the said place of crossing in the year 1855, or at the said place fifty yards southwest of said latter place.”
    Particular attention must be directed to an allegation found in the third amended petition to the effect that the said highway was established by legislative enactment of the state of Ohio in the year 1841 and by the further action of the county commissioners of Athens county, Ohio, in the year 1842. It therefore clearly appears that this highway is a state road and therefore all the provisions of the Ohio statutes relating to state roads are applicable.
    
      Mr. John E. Blake, prosecuting attorney, for plaintiffs in error.
    
      Mr. John P. Phillips, Mr. N. P. Clyburn; Mr. O. E. Vollenweider and Mr. John P. Phillips, Jr., for defendants in error.
   Marshall, C. J.

It seems quite clear that the board of county commissioners by its resolution of May 17, 1919, intended to institute steps for an undergrade crossing under the railroad of defendant in accordance with Sections 6956-3, 8874, 8875 and S876 of the General Code. The third amended petition, however, does not contain any reference to that resolution or disclose that the board of county commissioners ever took any other action than the adoption of that resolution. The pleading does not allege any demand having been made upon the railroad company, or a failure of the county commissioners to agree with the railroad company as to the expediency or necessity of such an undererossing, or as to the location of same, or as to the plans, specifications and estimated costs of its construction. The pleading, while quite lengthy and while containing with considerable repetition many allegations about the conditions of the highway as it formerly was located, and concerning that portion of the highway as altered, and while setting out facts which strongly indicate the expediency of making the improvement, does not allege any demand upon the railroad company to co-operate in planning and executing an improvement, neither does it allege any refusal on the part of the railroad company of such co-operation.

The statutes upon this subject, above referred to, do not give the county commissioners the power by the mere adoption of a resolution to make it obligatory upon a railroad company to construct a crossing. The statutes clearly contemplate a full measure of co-operation in bringing about a proper solution of the problem, which must be conceded to be difficult at best, and an appeal to the court is provided in Section 6956-3, General Code, only in the event that the county and the railway company can not agree.

Another difficulty presented by this record is found in the repeated allegations that the highway does branch from the main road as it existed in 1896, and does turn to the right where it goes under the railroad at the bank of the creek, and then turns sharply to the left back to the main highway. A fair construction of the language of the resolution of the county commissioners, if we may look to that resolution, clearly indicates that this departure is now a portion of the legal highway. We have examined the proceedings of the county commissioners, complete copies of which are attached as Exhibit C to the third amended petition, and without entering into a discussion of those provisions we are of the opinion that the statutes were substantially followed in those proceedings and that the change was in every way legal and unimpeachable. It may be that the description of the proposed change was not as definite as it might have been; but without any complaint being made the petition was acted upon, the surveyor made his survey and reported it, and the survey does make it definite. The complaint that no notice was given of the filing of the petition must be overruled, because the journal of the county commissioners recites that notice was given according to law, and this record cannot be impeached at this time by a board composed of successors to the board as it then existed. In any event the road attempted to be established at that time was in fact accepted by the county commissioners and opened by their order, and has ever since been used by the public, covering a period of a quarter of a century, and would therefore be held to constitute a legal public highway even if there should be some technical defect in the proceedings for its establishment. This was so held in the case of City of Steubenville v. King, 23 Ohio St., 610. The same proposition was decided in the case of Silverthorne v. Parsons, 60 Ohio St., 331, and in that case it was held that the provisions of Section 4669, Revised Statutes, in effect at that time, automatically vacated that portion of the road which was rendered unnecessary by the alteration.

The provisions of Section 4669, Revised Statutes, were in full force at the time of the proceedings in 1896 and 1897, but we are of the opinion that that section does not apply because of this highway being a state road. The section applying to alterations in state roads was Section 4635, Revised Statutes, which at the time of these proceedings provided as follows :

“Sec. 4635. That all alteration of state roads heretofore or hereafter made and established, shall form a part of said road, and so much of the original road as lies between points at wbiob tbe alterations intersect shall be and remain vacated. ’ ’

The final order of the county commissioners, on January 17, 1897, was as follows: “First, that the change will put the said road under the railroad whereby it will make a much safer crossing. Second, the traveling public demands the change and a better road can be made at a reasonable expense. We have also determined that the public convenience requires that such alteration of said road shall be established and opened fifty feet in width.” It seems very clear from the foregoing order that it was intended to establish a new road and to thereafter discontinue the maintenance of the old road.

We do not deem it the proper province of this court to point out the further steps which should be taken by the county commissioners to bring about the improvement which it was desired by them to bring about, as indicated by their resolution of May 17, 1919. Neither is it the proper province of this court to point out the method whereby the road which was vacated in 1897 can be restored to usefulness as a public highway, but it is sufficient to say that the allegations of the petition, the resolution of the board of county commissioners, and the proceedings of the county commissioners in 1896 and 1897, whereby the alteration was made, show that the plaintiff is not entitled to the particular relief prayed for.

The prayer of the third amended petition is for the restoration of the vacated portion of the highway, but we have no hesitation in holding that the courts do not have jurisdiction to restore a vacated road. All establishments, changes and alterations of county highways must be initiated in the office of the board of county commissioners.

The prayer of the third amended petition cannot be granted upon the allegations of that pleading, for the following reasons:

1. The courts for the reasons already stated have no power to restore an abandoned highway to its former usefulness.

2. The courts cannot order the establishment of an undergrade crossing at that point in the old abandoned highway, for the reason that that location is not in an existing legal highway, and for the further reason that the pleading does not allege the necessary preliminary steps to justify the court in making any order under and by virtue of the provisions of Section '6956-3, General Code.

3. The courts cannot make an order for the establishment of such undercrossing at a place fifty yards southwest of the above mentioned location, for the reason that it does not appear that a highway, or any kind of right of way or easement, approaches such location, and manifestly the railroad company would have no right to enter upon the premises at that point, if it desired to do so.

For all the foregoing reasons, the court of appeals did not err in sustaining the demurrer to the third amended petition, and its judgment is therefore affirmed.

Judgment affirmed.

Johnson, Hough, Wanamaker, Jones and Matthias, JJ., concur.

Robinson, J.,

concurs in propositions one and two of the syllabus and in the judgment.  