
    No. 13645.
    The Cincinnati, Hamilton & Dayton Ry. Co. v. The City of Lima.
    Decided December 19, 1913.
    Error to Circuit Court of Allen county.
    
      Mr. Morison R. Waite and Mr. I. R. Longworth, for plaintiff in error.
    
      Mr. W. S. Jackson and Mr. D. C. Henderson, for defendant in error.
   Judgment of the circuit court modified. See journal entry.

It is ordered and adjudged by this court, that the judgment of the said circuit court be, and the same hereby is, modified, and this court coming now to render such modified judgment as the circuit court should have rendered from the facts found, it is hereby ordered and adjudged that the defendant in error, the city of Lima, Ohio, be and it hereby is perpetually enjoined from constructing or opening a public highway and from altering any existing public highway at grade across the railroad tracks of the plaintiff in error at the point described in the petition, contrary to the provisions of Section 8895 of the General Code of Ohio, until said city of Lima, Ohio, shall procure from the common pleas court of Allen county an order or judgment of such court, permitting it so to do, as provided by Section 8899 of the General Code of Ohio. And in case an appeal is perfected from such order of the common pleas court to the'court of appeals of Allen county under the provisions of Section 8901, of the General Code of Ohio, then this injunction shall be and remain in full force and effect, until such court of appeals in such case shall make and enter an order and judgment, authorizing and permitting said city of Lima to construct a public highway or to alter an existing public highway at grade across the railroad tracks of said plaintiff in error at the place described in the petition.

It is further ordered and adjudged that the petition as to all other matters and things therein averred and as to all other relief prayed for be, and the same hereby is, dismissed.

Nichols, C. J., Shaucic, Johnson, Donahue and Wilkin, JJ., concur. Newman, J., not participating.  