
    The State of Ohio, by John Little, Attorney-General, ex rel. v. The Dayton & South-eastern Railroad Company.
    1. The provision in section 16 of the corporation act of May 1, 1852, which requires a railway company to place a highway crossed or diverted, “in such condilion as not to impair its former usefulness,” is a condition inseparable from the right or franchise granted to such company to cross the highway with its railroad, or to divert it from its location.
    
      2. While the company continues in the exercise of the franchise, the state has the right to compel it to perform the condition upon which the franchise was granted, by petition invoking the equity powers of the court, prosecuted by the attorney-general in the name of the state.
    3/ In enjoining the railway company from using the highway, where it has been diverted by the company from its location, but left in such close proximity to the railway as to make it dangerous for public travel, it is proper for the court to prescribe what change in the location shall operate to supersede the injunction.
    4. On allowing an injunction against the company from any further work on or obstruction of the highway, the court may, on final hearing, require the removal of the obstructions already placed thereon, in case the company refuse to restore such highway to its former usefulness.
    5. The remedy given to the county commissioners by the act of March 7, 1873 (70 Ohio L. 53), for the obstruction of a state or county road, is . cumulative, and does not affect the right of the state to maintain the present action.
    Error to tbe District Court of Montgomery County.
    Tbe original action was prosecuted in tbe name of tbe state by John Little, attorney-general, on the relation of James Crosby, Patrick McGee, and Francis M. Kemp, citizens and trustees of Mad River township, Montgomery county.
    Tbe object of tbe petition was to enjoin tbe defendant from obstructing a public county road, by tbe construction and operation of its railroad.
    It is averred, among other things, in tbe petition, that “ tbe defendant, not regarding tbe rights and interests of tbe public, is now engaged in constructing its road in such a manner, and at such an acute angle, that its track, if thus completed, will run some distance upon and for' tbe entire distance thence to tbe turnpike, parallel with, and but a few feet from, the traveled road-bed of said public road, as laid out and used by tbe public for tbe last fifty years. At no point from said proposed first point of contact to the turnpike, a distance, of over six hundred feet, is said proposed railroad track more than, say fifteen feet from tbe old road-bed of said public road, and generally along said distance the two are much nearer together than this. The crossing' of tbe sixty feet in width belonging to said road, is not completed from tbe southerly point of entrance thereon, until said railroad enters said Springfield pike, a distance of over six hundred feet, and travelers on said road to or from Dayton are compelled to cross said railroad track twice, the crossing at the pike being unusually dangerous.
    “ The proposed crossing at the south is at an angle of only five degrees with the traveled road-bed, and parties approaching it from the south-east will be unable to see or hear approaching trains, and even when on the railroad track, at said proposed crossing, will not be able to see a locomotive approaching from the west around the base of said hill, until it will be so near as to make it impossible for such parties to protect themselves from danger.
    “ The plaintiff alleges that the public road aforesaid is an exceedingly convenient and valuable highway, much used by the people of the neighborhood adjacent, and the citizens of the city of Dayton, for business and pleasure. If the defendant completes and operates its road as it now proposes at said point, said road will be very greatly damaged as a public highway ; its usefulness will be very greatly diminished and impaired ; and the said crossing will be exceedingly dangerous and unsafe to the traveling public, both upon the road and upon said railroad.
    “ The damage to the public will be irreparable, and not to be estimated in damages, and the present structure of the defendant, as already completed and contemplated, will be a continuing public nuisance.
    “ Plaintiff also alleges that this damage, injury, and nuisance is not the result of a necessity laid upon defendant in the prosecution of its enterprise, and that in this it is guilty of an oppressive and unwarranted use of its authority and discretion.
    “Plaintiff avers also that defendant has never taken any legal steps to appropriate or condemn a right of way over and upon said roadway; neither does it claim the right to thus interfere with, occupy, and use said roadway by virtue of any purchase or agreement.
    “ Wherefore plaintiff prays that defendant, by order of this court, be perpetually enjoined from any farther work within the boundaries of said public road; from completing the cou-« struetion thereof as now proposed; from running or operating its road with locomotives, while said public road is in its present condition, and from any use of said common road that will impair its usefulness to the public. That, upon the final hearing of this case, defendant may be ordered to remove the obstructions it has already placed in said public road, or may hereafter place therein prior to the final disposition of this case, and that it may be required, by order of this court, to place said public road at this point in a condition which will leave it as valuable and useful to the public as it was before it was interfered with as aforesaid by said defendant.
    “ And plaintiff prays for such further relief as may be necessary to guard and protect the public.”
    To the petition there was a general demurrer, which, being overruled, the case was heard upon testimony, and a decree rendered in favor of the plaintiff.
    The decree, in effect, enjoined the defendant from using or occujsying said public road by its railroad, and required the removal of the obstructions already placed thereon by the defendant, unless the latter, within a time prescribed, should so change the location of said county road as to make it reasonably safe for public travel. The change to be made which should operate to supersede the injunction and give the company the right to cross and occupy the road as previously located was prescribed in the decree.
    On error, prosecuted by the company, the judgment or decree of the court of common pleas was reversed by the district court and the demurrer to the petition sustained.
    The present petition in error is prosecuted for the reversal of the judgment of the district court, and the affirmance of that of the court of common pleas.
    . Thomas 0. Lowe, with whom was John Little, attorney-general, and John 1£. Spriggs, prosecuting attorney, for plaintiff in error:
    I. The injury complained of is admitted to be a public nuisance. It is declared to be such by statute. Swan & Critchfield, 881; Id. 279, § 33; see also Moshier v. Railroad, 
      8 Barb. 427; Wood on Nuisances, §§, 250-257, inclusive. Public nuisances are to be dealt with by the state in one of two ways ; either by indictment or by information in equity. The general doctrine concerning informations in equity, applicable to cases of purpresture and public nuisances, is found in the following text-books and authorities: Story’s Equity Jurisprudence, §§ 920-924 ; 2 Johns. Cli. 381; Wood on Nuisances, § 811, et seq.; Attorney-General v. Hudson River R. R. Co., 1 Stockt. (N. J.) 526; Newark v. Elmer, 1 Stockt. (N. J.) 754; People v. Vanderbilt, 26 N. Y. 287; Attorney-General v. Cohoes, 6 Paige, 133 ; State v. Railroad, 1 Dutch. 436 ; People ex rel. Teschemacher v. Davidson, 30 Cal. 379 ; Hodges on Railways, 439-445; Attorney-General v. London & S. W. R. R., 3 De G. & Smalley, 439; Attorney-General v. Gt. Northern R. R., 4 Id. 75 ; American Law Register, April, 1877.
    II. When corporations are exceeding the legitimate scope of their authority, a proper preventive remedy is a suit by the attorney-general. High on Injunctions, § 770; Putnam v. Valentine, 5 Ohio, 187; Walker v. Railroad Co., 8 Ohio, 38.
    III. In all cases where the state is the proper party plaintiff, it is the law officer of the state who brings the action. This officer, at common law, is the attorney-general. Story Eq. PI. § 49. Section 19 of the attorney-general’s act of the state of Ohio (Swan & Oritchñeld, 90). A duty in this direction is also laid upon the prosecuting attorney. Swan & Critchfield, 1225, § 2.
    IV. By the act of March 7, 1873 (70 O. L. 53), county commissioners appear to have the right to sue for damages, and obtain an order for the abatement of a nuisance in a county road. This is simply an enlargement of their legal powers, and the remedy is only concurrent with, and not exclusive of, the right of the state to restrain the creation of the nuisance. Darling v. Peck, 15 Ohio, 65, 71. See also 20 Ohio St. 389, citing 1 Story’s Eq. § 80. Cram v. Green, 6 Ohio, 430. It would be a strange proposition to say that the state cannot restrain the creation of a nuisance simply because the county commissioners have boon authorized to proceed to have it abated. It is no objection to an injunction like this that its form is mandatory. It amounts to the same thing as restraining from maintaining. Ilodges on Railways, 620.
    
      D. B. Corwine, for defendant in error :
    This is not a case for injunction. The damage is not irreparable. Stewart v. Railroad Co. 14 Ohio, 358. Compensation is all the plaintiff is entitled to. 18 Ohio St. 169.
    The plaintiffs are not proper parties.
    1. The trustees are not authorized by law to make any such relation in reference to a county, road. 5 Ohio, 186; 2 Wall. 501; 10 Ohio, 369; and see State ex rel. &c. v. Commissioners, &c., 5 Ohio St. 497; Railroad Co. v. Commissioners, &c., 1 Ohio St. 105 ; State ex rel. &c. v. Turnpike Co., 16 Ohio St. 308.
    2..In all cases like the one presented in the petition, the county commissioners are alone authorized to bring suit, and the suit must be brought by and in the name of such commissioners. 70 Ohio L. 53, § 17.
   White, J.

The original petition in this case is in the nature of an information or bill in equity to • restrain the defendant from the permanent obstruction of a public highway, to the injury of'the public; and the first question arising in the case is,whether the attorney-general, in the name of the state, can maintain the action.

That courts of equity exercise jurisdiction in cases of purpresture and nuisance, of encroachments upon the public rights, as upon highways, rivers, and streets of towns, is well settled. The jurisdiction is predicated upon the broad ground of preventing irreparable injury, interminable litigation, a multiplicity of suits, and the protection of rights. Putnam v. Valentine, 5 Ohio, 187; Law of Nuisance by Wood, §769, and notes.

Under the system of equity pleading, prior to the adoption of the code, the proper remedy, in cases of nuisances purely public, was by information or bill in the name of the attorney-general, or of the government, instituted by him. Law of Nuisance, supra, § 811; Story Eq. Jur. § 923 : Story Eq. Pl.§ 8.

That 'the attorney-general was authorized to institute such suits in behalf of the public is abundantly shown by the authorities. Attorney-General v. Johnson, Mayor, Commonalty & Citizens of London, Wilson Ch. 87; People v. Vanderbilt, 26 N. Y. 287; People v. Davidson, 30 Cal. 379; Attorney-General v. Stewart, 21 N. J. 340; Attorney-General v. Forbes, 2 Mylne & C. 123.

When the suit did not immediately concern the rights of the crown or govennent, its officers depended on the relation of some person, whose name was inserted in the information as the relator. A relator, however, in such cases was by no means indispensable; and the attorney-general might, if he chose, proceed in the suit without one. Story Eq. Pl. § 8.

Section 19 of the act prescribing the duties of the attorney-general, authorizes him to “ prosecute any suit, information, or other suit, either at law-or in equity, in behalf of the state, or in which the state may be interested.” S. & C. 90. Under this provision of the statute, the attorney-general was fully authorized to maintain the action.

The petition describes the relators as citizens and trustees of Mad. River Township, in the county of Montgomery; and it is claimed by counsel for the defendant, that as such trustees they have no authority to act as relators. This may be conceded ; but they were also citizens, and as such were competent relators. Moreover, as already remarked, it was competent for the attorney-general to institute the suit without a relator.

The defendant was incorporated under the act of May 1, 1852, to provide for the creation and regulation of incorporated companies.. S. & C. 271.

Section 16 of the act is as follows : “ It shall be lawful for such corporation, whenever it may be necessary in the construction of such road, to cross any road or stream of water, to divert the same from its present location or.bed; but said corporation shall, without unnecessary delay, place such road or stream in such condition as not to impair its former usefulness.”

This provision of the statute forms part of the charter of the railroad company; and though subject to alteration or repeal, yet until so altered or repealed, it has the effect of a contract between the state and the company, in fixing the rights and liabilities of the latter.

The obligation of the company to place the highway in such condition as not to impair its former usefulness tr. the public, is a condition inseparable from the right or franchise granted to the company to cross the highway with its railroad, or to divert it from its location for the accommodation of the railroad. Railroad Co. v. Commissioners of Greene Co., 31. Ohio St. 338.

While the company continues in the exercise of the franchise, we entertain no doubt of the right of the state to compel it to perform the condition upon which the franchise was granted. This may be done, as was sought in this case, by petition invoking the equity powers of the court, prosecuted by the attorney-general in the name of the state. Such was the form of remedy in Attorney-General v. London & South Western Railway Co., 3 De G. & S. 439; and in The Same v. Great Northern Railway Co., 4 Id. 75.

In People v. C. & A. R. R. Co. (67 Ill. 118), and in People v. D. & C. R. R. Co. (58 N. Y. 152), the remedy was by mandamus. But no injunction was sought in these cases; and, without saying that mandamus might not have been resorted to in the present case, yet, the mode adopted was appropriate, and afforded a more flexible remedy.

The plaintiff having been found entitled to an injunction against the use of the highway by the railroad company, and the latter having diverted it from its location, but leaving it in such close proximity to the railroad as to make it dangerpus for public travel, it was proper for the court to prescribe what change in the location should operate to supersede the injunction. The condition was imposed after the final hearing of the cause, on testimony, and there is nothing in the record showing that the condition prescribed was unreasonable.

There was no error in the court after enjoining the defendant from any further work on the highway, requiring it, on failure to comply with the condition prescribed, to remove the obstructions already placed thereon by the company. The People v. Vanderbilt, supra, 295, 298 ; Corning v. Troy Iron Nail Factory, 40 N. Y. 191. The plaintiff, being entitled to a perpetual injunction, it was competent for the court to administer full relief.

Counsel for the defendant relies on the act of March 7, 1873 (70 Ohio L. 53), amending the act establishing boards of county commissioners, as furnishing the only remedy in cases of the obstruction of a state or county road.- That act authorizes an action to be brought to recover damages by the county commissioners.

We regard the act as merely cumulative, and not as in any way affecting the right of the State to maintain the present action. Darling v. Peck, 15 Ohio, 71; People v. Vanderbilt, 26 N. Y., 294, 295.

Judgment of the district court reversed, and that of the common pleas affirmed, with an allowance of further time to the defendant, within which- to comply with the order.  