
    The Village of Rockport v. The Cleveland, Cincinnati, Chicago & St. Louis Railway Company.
    
      Right to occitpy road, street or alley — By railroad companies — Section 3283, Revised Statutes — Railroad company has not absolute right — To appropriate public streets, when — Power to appropriate does not cover — Appropriations for railroad yard — Evidence as to necessity for such appropriations.
    
    1. Under the provision of Section 3283, Revised Statutes, a railroad company, in the location of its railroad, has not the absolute right to appropriate public streets of a municipality for an unlimited number of tracks over and across the same, but the court in which such proceedings to appropriate are commenced is required to determine the reasonableness of the appropriation sought to be made.
    2. The power conferred upon a railroad company by Section 3283, Revised Statutes, does not authorize the appropriation of public streets of a municipality for the purposes of a railroad yard.
    3. Evidence that the tracts proposed to be located over and across the streets sought to be appropriated are necessary in the use and operation of the switching yards of the railroad, company, does not authorize a trial court to find that such tracks are necessary within the meaning of Section 3283, Revised Statutes.
    (No. 12745 —
    Decided November 21, 1911.)
    Error to the Circuit Court of Cuyahoga county.
    On the second day of July, 1909, the defendant in error The Cleveland, Cincinnati, Chicago & St. Louis Railway Company filed its amended petition in the Court of Insolvency of Cuyahoga county against the village of Rockport averring that plaintiff is a railway corporation organized under the laws of Ohio, and that the defendant is a municipal corporation duly organized and existing under and by virtue of the laws of said state. It further avers that by the terms of its charter and articles of incorporation it is authorized and empowered to locate, construct, maintain and operate a steam railroad with such main tracks, sidetracks, turnouts, switches, branch connection and other appurtenances thereto through the state of Ohio, and especially through the county of Cuyahoga in said state; that its railroad then was constructed and in operation through the village of Rockport in said county and state; that it was necessary for the purposes of its railroad to appropriate the right or easement to locate, construct, maintain and operate in addition to the two main tracks now constructed and maintained thereover, five additional sidetracks or turnouts along and upon and across the highways within the corporate limits of said village of Rockport known as Settlement Road and Linndale Road at the place where said roads intersect and where Settlement Road crosses the right of way of plaintiff company; said tracks to be laid within the limits of the right of way of said company and approximately parallel with and at the grade of said two existing main tracks. It averred that the village of Rockport claims some right or easement in said highways and that said village further claims that the construction and maintenance of the additional tracks would destroy or impair such easement. It further averred its inability to agree with the village of Rockport as to the sum of money to be paid it as compensation for the right or easement to locate, construct, maintain and operate said tracks on and across said highway, and prayed that said court should hear and determine the questions as to the existence of the plaintiff corporation, its right to make the appropriation sought, its inability to agree with the defendant and the necessity for such an appropriation, and that when said court should so adjudicate these questions in its favor that a jury be impaneled for the purpose of determining and assessing the amount of compensation to be paid.
    To this amended petition the plaintiff in error filed a demurrer, which demurrer was overruled by the court. The village thereupon filed its answer admitting the corporate capacity of plaintiff, but denying the necessity of the appropriation, and averring that the railroad company was not in good faith in attempting to appropriate the right to construct the five additional tracks across said streets and highways, and denied that such tracks were necessary for its use, and averred it was the company’s intention to use these tracks, not as sidetracks or turnouts, but as a railroad yard for the storage of cars, for the switching of cars from one track to another, and for making up and separating trains of cars. It also averred that the railroad company had, without any authority whatever, constructed the tracks and had been enjoined by the judgment of the court of common pleas from operating and maintaining the same, but that execution of this judgment had been suspended for a period of three months; that both streets are important and much traveled streets in the village and are necessary for the use of the inhabitants of the village and the public generally, but that by reason of the construction of the additional tracks and the use made, and intended to be made of them by the company, that the use by the public of these streets, where crossed by these tracks, would be materially interfered with and impaired, and that the necessary consequences of such construction and use of said tracks by the railway company would substantially exclude persons traveling on foot or in ordinary vehicles from the use of these portions of said streets.
    On October 4, 1909, the cause came on to be heard on the preliminary questions to be determined by the court before the impaneling of a jury, and that court held that the appropriation sought to be made by the plaintiff would be an unreasonable interference with the rights of the public in the use of the highways described in the petition, and would be destructive of the public use of said highways, and that such appropriation is not necessary for the purpose of the plaintiff’s railroad, and thereupon dismissed the plaintiff’s petition. The common pleas court affirmed the judgment of the court of insolvency and the defendant in error then filed a petition in error in the circuit court, which court reversed the judgment of the court of insolvency and the judgment of the court of common pleas affirming the same, and remanded the cause to the court of common pleas for trial and final judgment, and this proceeding in error is prosecuted in this court to reverse that judgment of the circuit court.
    Upon the trial of the preliminary questions the following plat was submitted, which shows the locations of the street, the two main tracks and the five additional tracks proposed to be constructed.
    
      
      
    
    
      
      Mr. Albert Lawrence and Mr. James Lawrence, for plaintiff in error.
    The right of crossing given by Section 3284, Revised Statutes, exists without the consent of the local authorities, but it can only be exercised at the time of the original construction of the road and is not a continuing power. Railway Co. v. South, 78 Ohio St., 10.
    Under Section 3283 it is provided that such company may appropriate so much of a road, street, alley, way or ground-as may be necessary for the purposes of its road. That structures of the kind mentioned in Section 3281 can not be constructed in public grounds, either by agreement or appropriation, was expressly held under a similar statute, in the case of St. Paul v. Railway Co., 63 Minn., 330, which was referred to with approval by this court.in Railroad Co. v. Cincinnati, 76 Ohio St., 481, and the same thing is substantially held in Railroad Co. v. Defiance, 52 Ohio St., 262, and Railway Co. v. Elyria, 69 Ohio St., 414.
    The statutes of Illinois give to a railroad company the right to construct its railway across, along or upon any street, but with the consent of the corporation of such city, town or village. Hurd's Rev. Stats, of Illinois (1908), Sec. 20, page 1664; Railway Co. v. People, 120 Ill. App., 306; Railway Co. v. People, 222 Ill., 427; Pepper v. Railroad Co., 113 Tenn., 53; Stephenson v. Railway Co., 68 Mo. App., 642; Railroad Co. v. Sutton, 13 S. W. Rep., 1086; Newark v. Railroad Co., 71 Atl. Rep., 620; Railway Co. v. Montezuma, 122 Ga., 1; Glick v. Railroad Co., 19 D. C., 412, 21 D. C., 363; Railway Co. v. Portland, 9 Ore., 231; Branahan v. Hotel Co., 39 Ohio St., 333.
    The general rule is that property already appropriated to one public use cannot be appropriated for another public use which will defeat or supersede the former use, unless the power to make such second appropriation is given expressly or by necessary implication. Railroad Co. v. Belle Centre, 48 Ohio St., 273; Railroad Co. v. Dayton, 23 Ohio St., 510; Railway Co. v. Fostoria, 7 C. C., 293; 26 Am. & Eng. Ency. Law (2 ed.), 679; Railroad Co. v. Defiance, 52 Ohio St., 262; Railway Co. v. Detroit, etc., Ry. Co., 171 U. S., 48.
    While a corporation has primary discretion in determining what land is necessary for the purposes for which it is authorized to make appropriations, the probate judge may, under the jurisdiction vested in him by Section 6420, Revised Statutes, hear and determine the question of the right of the corporation to make the appropriation and the necessity for the appropriation. Railroad Co. v. Railroad Co., 72 Ohio St., 368; Railway Co. v. Greenville, 69 Ohio St., 487; Railroad Co. v. Traction Co., 1 N. P., N. S., 296.
    The well settled doctrine is that the supervision and control of the public highways is a public trust, and while additional uses may be imposed, not subversive of or impairing the original use, yet the rights of the public to use a street for ordinary travel cannot be . materially impaired. Railroad Co. v. Defiance, 52 Ohio St., 262; Zanes
      
      ville v. Fannan, 53 Ohio St., 605; Railway Co. v. Elyria, 69 Ohio St., 414; Sherlock v. Railway Co., 142 Mo., 172; Corby v. Railway Co., 150 Mo., 457; Newark v. Railroad Co., 42 N. J. Eq., 196; Ligare v. Chicago, 139 Ill., 46; Stack v. East St. Louis, 85 Ill., 377; Dubach v. Railroad Co., 89 Mo., 483; Railroad Co. v. Buffalo, 158 N. Y., 266; Jones v. Railroad Co., 169 Pa. St., 333; Osborne v. Railway Co., 27 Hun, 589; Grant v. Hyde Park, 67 Ohio St., 166.
    
      Messrs. Cook, McGowan & Foote, for defendant in error.
    We concur with counsel that under the recent decision of this court a railway company, under former Section 3283, Revised Statutes, cannot acquire the exclusive right to use a highway for the purposes of its railroad, and that it cannot make any use thereof which would destroy the primary public uses. But this court clearly recognizes in the case of Zanesville v. Fannan, 53 Ohio St., 605, the right of a railroad company to cross highways with its tracks so long as the use of the highway is preserved and protected; that the railway company is itself a means of public use, and that it cannot be assumed in a proceeding to acquire the .right to construct tracks by appropriation, that the company will destroy the highway or create nuisances in it.
   Donahue, J.

There is no conflict of evidence in this record. Linndale Road intersects Settlement Road at right angles, and both of these roads are now streets within the village of Rockport much used for public travel. The railroad company originally constructed two main tracks across these streets at the point of intersection, and it is now proposed to locate five additional tracks, making in all seven tracks diagonally across these streets at this point. Mr. Costin, the superintendent of the plaintiff company, testified as follows: “Q. I wish you would state what necessity exists for the construction of these tracks over the crossing? A. Well, we could not operate the Linndale yard without those tracks; that is the necessity for it.” And upon cross-examination as follows: “Q. It is a question of the size of the yards then? A. Yes.” It, therefore, clearly appears from the evidence offered on behalf of the plaintiff in the court of insolvency that these tracks are to be used in connection with the Linndale yard, and not in the operation of the main line. This yard appears to have grown from a small beginning to large proportions extending now practically two miles to the east of Settlement Road, and containing a great many separate tracks and switches. In determining the right of the company to make this appropriation it is proper for a court to consider the purposes of railroad yards; the nature, character and use to which they are put, and whether such use is consistent with the present rights and easements of the public in the streets. The right of the railroad company to make this appropriation does not depend alone upon its authority to appropriate public streets to the uses .of its road, but it also depends upon the nature of the property sought to be appropriated and the uses to which the railroad company seeks to subject that property. It must also be borne in mind that the state has already appropriated this land to public purposes, and it could not without first vacating these streets appropriate the same land to any use inconsistent with or destructive of the present rights of the public therein, and if the state itself could not, without first vacating and abandoning these streets, appropriate this property to a use that would be destructive of or a substantial interference with the public easement therein, then neither could it delegate to a railroad company any such right. The property having been devoted to a public purpose, the principle obtains that the public use is the dominant interest in the street, and the village authorities could not grant any right to the railroad company under the provision of Section 3283, Revised Statutes, that would be destructive of these rights or amount to a material or substantial interference with the same or have the effect of excluding the public therefrom. This proposition seems to be well settled in this state. The Lake Shore & Michigan Southern Railway Co. v. City of Elyria, 69 Ohio St., 414; Ravenna v. Pennsylvania Co., 45 Ohio St., 118; The Little Miami Railroad Co. v. Commissioners of Greene County, 31 Ohio St., 338; City of Zanesville v. Fannan, 53 Ohio St., 605; Railroad Co. v. Defiance, 52 Ohio St., 262. It necessarily follows that the railway company can acquire no further rights by appropriation than the village council could grant it by ordinance or contract.

Section 3283, Revised Statutes, contemplates that a railroad track may be laid over or across a public highway, or a street in a municipal corporation without destroying or materially interfering with the easement of the public therein, but it certainly does not contemplate the multiplication of these tracks at the will and pleasure of the railroad company without reference to the condition of the road or street proposed to be crossed and the uses the railroad company intends to make of these tracks. An examination of the plat or diagram copied into the statement of facts herein shows a somewhat peculiar and extraordinary condition of affairs. This is not a question of crossing a single street at right angles, or even two streets at right angles, but the proposed appropriation contemplates the crossing of two streets diagonally at the point of their intersection.

Past experience with grade crossings in this state has shown the wisdom of the legislation declaring against grade crossings of any kind or character. True in this case the main tracks are already at grade and the statute that now prohibits grade crossings does not' apply to this case further than to permit under these circumstances additional tracks at grade. Section 6 of that act does not grant to railroad companies any new rights or authority whatever, but merely exempts from the operation of this act the right and authority a railroad company then had to lay additional tracks at grade.

If under the provision of Section 3283, Revised Statutes, the railroad company has the absolute right to appropriate the public easement in these streets for these additional tracks, it would follow that it would have the right to appropriate for an unlimited number of tracks, if it desired to place the same there, without regard to the effect such appropriation would have upon the streets, or the rights of the public therein. This consideration alone demonstrates the unreasonableness of such construction, and leads us to the conclusion that the rights of the railroad company under this section are not absolute and at the will of the company but must be exercised with reasonableness and with due regard to the rights of the public therein, and it therefore follows that it is not only the province, but the duty, of a court in which such appropriation proceedings have been commenced to determine from all the evidence whether the number of tracks proposed to be constructed would be destructive of the public easement in the streets, or an unreasonable interference therewith. This was one of the questions submitted to the trial court. The evidence offered was not conflicting. That court found against the reasonableness of the appropriation and against the authority of the company to appropriate the right to lay these further tracks across these streets, and the finding and judgment of the trial court in these particulars is fully sustained by the evidence and is not contrary to law.

The court also found that the appropriation sought to be made is not necessary for the purpose of the plaintiff’s railroad. Section 3283, Revised Statutes, under favor of which these proceedings were brought does not authorize the appropriation of streets for any and all purposes incident to the operation of a railroad, but only for the location of any part of the railroad itself. In this respect it differs materially from Section 3281 authorizing the appropriation of private property for depots, workshops, roundhouses and water stations. In the construction and location of the main line of road a railroad company cannot but meet with conditions that are beyond its control, as for instance the crossing of streets and highways and therefore, notwithstanding that the crossing of these streets and highways may interfere somewhat with the public travel by foot passengers and ordinary road vehicles, yet the legislature has recognized the fact that of necessity the railroad company must be given the right to cross the same, not merely because it also furnishes a mode of public travel, but because it would be impossible to construct railroads if such rights were not granted. But in the location and establishment of its yards, depots, workshops, roundhouses and water stations, the railroad company can largely guard against these contingencies and it is very evident that Section 3283, Revised Statutes, intends to require that it should do so, otherwise the language of that section would not be different from the language found in Section 3281, Revised Statutes. Section 3283 does not in terms authorize a railroad company to condemn or appropriate public streets or roads for these purposes, and all statutes granting to corporations the right of eminent domain, which is an attribute of sovereignty, must be strictly construed. Currier v. M. & C. Railroad Company, 11 Ohio St., 228; Atkinson v. M. & C. Railroad Company, 15 Ohio St., 21; Platt v. Pennsylvania Company, 43 Ohio St., 228; Ravenna v. Pennslyvania Company, 45 Ohio St., 118. Without recourse to this rule of construction it clearly appears that Section 3283 applies only to the railroad itself if it should be found necessary in the location of the same or any part thereof. All these other things that are incident to and undoubtedly absolutely necessary to be maintained by a railroad company for the purposes of operating its road are not included in the term railroad as used in this section, for if depots, workshops, roundhouses and water stations could be constructed upon public streets, it would amount to an absolute abandonment and destruction of the public rights therein. It is equally clear that railroad yards are not within the contemplation of this statute, and that it is not intended thereby to authorize a railroad company to construct its yards over and across or along streets and highways, either with the consent of the municipal authorities or by appropriation of the same. Such a use by the railroad company would be not only inconsistent with the right of the public therein, but absolutely destructive of its rights. It ought to require no argument to sustain the proposition that a railroad yard is no place for public travel, either by pedestrians or ordinary road vehicles. If an attempt were made by the village authorities to establish a street over and across Linndale yards the absurdity would become at once apparent. It would be not only a serious interference with the railroad's right in this property but practically destructive thereof, and the danger to the traveler would be so imminent and obstructions so frequent as to make it useless to the public. The evidence in this record does not admit of any other conclusion but that these tracks now proposed to be located across these streets are for yard purposes. The trial court found that the proposed tracks were not necessary to the operation of the road. The burden of proof upon this proposition was upon the railroad company. The proof offered was that these tracks were necessary to the operation of its yards. Of course it must be conceded that yards are a necessary incident to the operation of the road itself, but no more necessary than are depots, workshops, roundhouses and water stations. It is clear that the railroad company cannot appropriate streets for these purposes and it is equally clear that it cannot appropriate streets and public highways for yard purposes. Therefore, the proof offered that these tracks were necessary for yard purposes does not sustain the claim that the tracks are necessary, in the location of the road or any part thereof. It is of course unfortunate that this condition should arise. The company, perhaps, could not foresee the development of its yards to such an extent as would require the use of these streets for yard purposes, and all this valuable property ought not to be sacrificed for any mere technical right of the public, but the right of the public in these streets is not technical, but substantial. It is conceded in the record that these streets are “much used for public travel.” Therefore, the only way the public can be divested of these rights is by vacation of the streets, and until that is done the courts must protect the easement of the public therein.

There is another question presented by this record, that in view of our construction of Section 3283, it is not now material, yet it is one of the preliminary questions to be determined before submitting the question of damages to a jury, and that is whether the railroad company has been unable to agree with the authorities of the village with reference to the occupation of these streets. The trial court made no finding upon this question and there was no competent evidence offered to the court upon which it might find this fact to be true. There is some evidence that Judge Lawrence, who is now an attorney of record in this cause, represented to counsel for the railroad company that the village of Rockport would not agree to any grade crossings. The conclusion of the witness that Mr. Lawrence was the authorized representative of the council of the village is not evidence tending to prove that fact. The council of the village of Rockport was the proper authority to declare its position. The proposition should be made to the council of the village and rejected by it, or there should be some showing in this record that the council by proper action on its part directed Mr. Lawrence to communicate to the railroad company its final rejection of any .proposition made by the company to lay these tracks over and upon these streets. In this respect the evidence of the railroad company failed to establish the fact that it had been unable to agree with the village authorities. There is considerable controversy in the record as to this proposition, but none is now made in this court and we-would probably not reverse for this reason. ' But the fact remains that there was no finding by the court upon this preliminary question and no evidence offered upon which the court would be authorized to find the averment of the plaintiff’s petition in that behalf to be true.

For the reasons, however, first above stated the judgment of the circuit court is reversed and the judgment of the common pleas court affirming the judgment of the Court of Insolvency of Cuyahoga county is affirmed.

Judgment reversed.

Spear, C. J., Price, and Johnson, JJ., concur.  