
    Railway Co. v. Lawrence.
    1. Where the construction of a railroad in a street of a city will work material injury to the abutting property, such construction may be enjoined, at the suit of the owners, until the right to construct such road in the street shall first be acquired, under proceedings instituted against such owners as required by law for the appropriation of private property.
    2: In such case it is immaterial whether the fee is vested in the city or in the abutting owners, so long as it is held upon the same defined uses. Railway Co. v. Cumminsville (14 Ohio St. 524), approved and followed.
    Error to the District Court of Scioto County.
    July 3,'“1877, the defendants in error, David Lawrence and others, filed their petition in the court of common pleas of Scioto county to enjoin the Scioto Yalley Railway Company, the plaintiff in error, from constructing its railway along and on Guy street, in the city of Portsmouth, in said county.
    The plaintiffs aver that they are the owners of valuable lots abutting on said street; that said street is dedicated to public use as a street, the fee thereof being vested in said city in trust for said use. They also aver that said railway company has obtained from said city of Portsmouth the right of way, so far as .said city has power to grant the same, to construct and build said railroad over and along said Guy street; that the construction of said railroad and the laying of the track thereof along the said street as contemplated in said grant of the right of way by the said city, and the running of locomotives and trains thereon, will have the effect of rendering the property of the plaintiffs in Guy street to a great extent worthless, and to deprive them of their property in Guy street, and the private rights and easements which they respectively now have in the same. It is also averred that such contemplated use of said street is not only an essential diversion of it to other purposes than those for which it was acquired, but is such an enlargement of its uses as to accumulate materially additional burdens upon the land, and destroy or impair the incidental rights of the plaintiffs appurtenant to their lands abutting on said street, and that the damages resulting therefrom will be irreparable.
    The answer of the defendant put in issue the averments of the petition as to the injurious effects upon the property of the plaintiffs resulting from the construction and operation of the railroad, and relied upon the grant from the city as a bar to- the relief sought.
    On the trial the court found the issues in favor of the plaintiffs, and granted the injunction as prayed for, unless the railroad company, as against the plaintiffs, should first acquire the right to construct said road, under proceedings instituted as required by law for the appropriation of private property.
    On error this judgment was affirmed by the district court, and the present proceeding is instituted in this court to reverse both judgments.
    
      W. A. IIutoMns, Barmon & Anderson, and G. O. Hunter, •for plaintiff in error :
    The first and principal question presented is this: Under our constitution and laws, where the city council of a city has granted to a steam railroad company the right of way for its track through a public street of such city regularly dedicated to public use by the original proprietor, has the abutting lot-owner such property right in the street as to entitle him, necessarily and as matter of law, to condemnation proceedings, or is his remedy one for damages for any consequential injury he may sustain ?
    
      ~We maintain that the abutting lot-owner has no right to condemnation proceedings under such circumstances.
    Eor the statutes relating to this subject, see 2 S. & C. 1483, § 6; Id. 1514, § 63; 1 S. & O. 278, § 29. The great weight of authority is, that as to streets, as distinguished from country roads, and when the legal title has vested in the municipal authority, and further, when such municipal authority has been authorized by law to grant the right of way, then the abutting lot-owner cannot require condemnation, but he has simply a claim for damages (Protzman v. Ind. & Cin. R. R. Co., 9 Ind. 467; New Albany & S. R. R. Co. v. O' Daily, 13 Ind., 353; New Albany & S. R. R. Co. v. O' Daily, 12 Ind., 551; Wood v. Mears, 12 Ind. 515. See, also, 10 Ind. 96; 9 Ind. 433; 7 Ind. 479, 522, 711; Milburn v. Cedar Rapids R. R. Co., 12 Iowa, 246; Clinton v. Cedar Rapids R. R. Co., 24 Iowa, 455; Moses v. Railway Co., 21 Ill. 522; Railway Co. v. Heiscl, 37 Mich. 62; 2 Pillon on Municipal Corp. §§ 555-577; Cooley’s Const. Lim. 545-556; 1 Redfield on Railways, 276, 321-325; 2 Id. 406-409).
    Judge Ranney held, in the Cumminsville Street Railway case (14 Ohio St. 523), that the laying down of a track for a street railway in a turnpike road, the grade of which was changed, and when the facts found by the court below showed an injury to the business of an abutting lot-ownei1, connected with his improvements made with reference to the grade of the street, that this constituted the “taking of property” within the meaning of the constitution.
    But even this case recognized the fact that such result did not, necessarily, arise from the laying down of the track of the road, but, on the contrary, that ordinarily no such result would follow.
    It was simply a “ grade ” case, and compensation was the question. "Whether by way of condemnation proceedings or for damages was not mooted.
    That a different means of use of a street is still the same use, and that an abandonment or reverter is not caused even by a radical change in such use, is sustained by the following cases: Malone v. City of Toledo, 28 Ohio St. 643; Hatch case, 18 Ohio St. 92; Jackson v. Jackson, 16 Ohio St. 163.
    The defendants in error were not entitled to an injunction. 1 Redfield on Railways, 318; Sargent v. Railway Co., 1 Handy, 52; Moses v. Railway Co., 21 Ill. 522; Stone v. Railroad Co., 68 Ill. 394; Railroad Co. v. McGinnis, 79 Ill. 269; 29 Ill. 279.
    
      
      Moore <& Newman and Thompson & Turley, for defendants in error, filed no brief. .
   White, J.

This casé is governed by the principles laid down in Street Railway v. Cumminsville (14 Ohio St. 524), and we are not disposed to depart from the ruling in that case.

1. As to the claim of the plaintiff in error that the abutting lot-owners will sustain no appreciable damage by the construction of the railroad on the street.

This question was put in issue by the pleadings, and was found by the court below in favor, of the defendants in error. All the evidence is embodied in the bill of exceptions and is brought before us for review. The result of our examination is, that we see no reason to warrant us in disturbing the findings of the court upon the issues of fact.

2. It is also claimed that as.the fee to the street is vested in the city, the abutting lot-owners are not entitled to an injunction, whatever damage or injury may result to their lots, that their only remedy is by civil action against the company to recover for such injury.

The.statute under which the fee of streets is vested in the city provides as follows: “ That all proprietors of lots or grounds in any city or town corporate in this state, who have subdivided or laid out, or who shall hereafter subdivide or lay out the same in lots for sale, shall cause accurate and true maps or plats thereof to be recorded in the office of the recorder of the county in which such town or city may be situated; which maps or plats so to be recorded, shall set forth and describe, with certainty, all grounds laid out or granted for streets, alleys, ways, commons, or other public uses: . . . and such map or plat so recorded, shall be deemed a sufficient conveyance to vest the fee of the parcel or parcels of lands therein set forth and described, or intended to be, for streets, alleys, ways, commons or other public uses, in such city or town corporate, to be held in the corporate name thereof, in trust to and for the uses and purposes so set forth and expressed or intended ” (S. & C. 1483; Chase, 1846).

It seems to us it can make no material difference where the fee is vested, so long as it is held to the same defined uses.

The established doctrine in this state, is, that the abutting lot-owners “ have a peculiar interest; in the street, which neither the local nor the general public can pretend to claim ; a private right of the nature of an incorporeal hereditament, legally attached to their contiguous grounds, and the erections thereon; an incidental title to certain «facilities and franchises, assured to them by contracts and by law, and without which their property would be of little value. This easeme-nt, appendant to the lots, unlike any right of one lot-owner in the lot of another, is as much property as the lot itselfP

In speaking of the rights of the public in the street, in the case already referred to, the court (on p. 549) say : “ It ” (the public) “may regulate and modify the manner of using the street by the public at large, and may, undoubtedly, devote its own interest to the maintenance of new structures, placed in the hands of other agencies, and calculated to enlarge the general purposes for which the highway was originally constructed. But where these new structures, and new modes of travel, devolve additional burdens upon the land, and materially impair the incidental rights of the owner in the highway, they require more than the public has, or can grant, and the deficiency can only be supplied by appropriating the private right upon the terms of the constitution” (See also Pierce on Railroads, 1881, p. 241).

The doctrine laid down in Street Railway v. Cumminsville was subsequently adopted by the general assembly in the act of May 27, 1866, to amend the act of April 10, 1861, providing for street railroad companies (S. & S. 131, 2 Sayler, 958). And there is no reason why abutting lot-owners should not have the same rights against the construction of steam railroads as they have against street railroads.

Judgment affirmed.  