
    John Moorhead and others vs. The Little Miami Rail Road Company.
    Private acts of incorporation, which confer power to subject private property to public use, should be strictly construed.
    The 11th and 12th sections of the act incorporating the Little Miami Rail Road Company, do not confer upon the Company a right to re-locate theirroad, after completing it upon the first location, and to condemn to the uses of the road, private property.
    Chancery has power to restrain such acts.
    This is a Bill in Chancery, reserved in Hamilton County.
    The bill sets forth that the complainants are the owners of certain premises, situate near and about the division line between Cincinnati and Fulton, fronting two hundred feet on the turnpike road on East Front street, and extending in depth to the Ohio river, the same width throughout; that they have been long in possession, and contemplated the erection thereon of a large saw-mill, and the establishment of a lumber-yard; and that they have dug the foundations, and made all their contracts to build the mill. That the Little Miami Railroad Company, claiming a right to appropriate a portion of said premises for the purposes of said Company, have notified the President Judge of the Court of Common Pleas of Hamilton county, that it is necessary, and proper that said Company should take possession of and úse for the construction of their road, forty feet in width of the petitioners’ premises. That the said Judge has issued to the Sheriff of the county his order, as contained in Exhibit A, pursuant to which the Sheriff caused an inquest to be held, who, upon oath, returned an estimate of the complainants’ damages at $6,500. That the said Company have designated the line of their road, which will divide the complaintants’ premises in the centre thereof. That, by the act. of incorporation of said Company, the Company were authorized to select the most advantageous line for their road. That the Directors did cause an examination thereof to be made, from near Deer Creek the township line of Columbia, which line or route was finally laid out or located upon the south side of the high ground near to the line of High street; that said line was surveyed by O. M. Mitchell, Esq., the engineer of said Company, who returned his survey thereof to the Board of Public Works at Columbus, as will appear by Exhibit C. That the Company did not proceed to erect their road upon said line as located, but after-wards appropriated, with the consent of the City Council of the city of Cincinnati, and by the sufferance of the Town Council of the town of Fulton, the public street, known in Cincinnati as East Front street, and in Fulton as the Columbus and Wooster Turnpike Road, for the use of which they have a contract with the directors of the Turnpike Road. That upon this line, they proceeded to construct their railway; and from the first opening of the road until the present time, for five years and upwards, have occupied the same with their cars and locomotives, and are now in the daily use thereof. That the Company now seek to change the route of the road a second time, whereby a line south of that now used is asked to be appropriated, when there is no physical impediment in the present line, to prevent the enjoyment thereof by the defendants. Whereupon the petitioners charge, that, having once established said road upon the line, as it is now used, and appropriated the highway for the purposes of the Company for the period aforesaid, the said Company cannot change the said route or course of said road, by the appropriation of any other land or estate, upon which said road can be re-located; nor have the said defendants any right to enter upon the premises of the petitioners, and take the same for the purposes of the said road. The petitioners claim that the power of the Company has been exhausted, and that if the route can be changed, such necessity should be imperative, and that the route originally located by O. M. Mitchell, the engineer of said Company, is more safe for the public, cheaper for the construction of the road, and will interfere much less with the improvements of individuals, than the proposed route between the road, as it is now constructed, and river aforesaid. The complainants pray that the Company may be restrained, by injunction, from taking possession of, or constructing their road upon the complainant’s premises, and from any interference therewith, in any manner whatever, for the purposes of said Company. The bill is sworn to by one of the complainants.
    Exhibit A. referred to in the Bill.
    To the Sheriff of - Hamilton county, greeting : Whereas the Little Miami Rail Road Company, have notified the undersigned, one of the Judges of the Court of Common Pleas, of Plamilton county, that it is necessary and proper that said Company should take possession of and use for the construction of the Little Miami Railroad, the following real estate, being a piece of ground forty feet wide, running nearly parallel with Front street in the city of Cincinnati, through the whole length of a lot owned by John Moorhead, Nathaniel Foster and Thomas Moorhead, and which lot is bounded on the south-west by property of Jacob Strader, and south-eastwardly by property of Jacob Strader and is situated in Hamilton county, State of Ohio ; the length of this lot is about two hundred feet, and the centre of the road, as located, being the centre of the forty feet, and have made application for me to issue a warrant for the appraisement of said land, according to law, which premises re owned by the following persons: John Moorhead, Nathaniel Foster, and Thomas Moorhead, who are not willing or able to agree with the said Little Miami Railroad Company as to the price and value of said land so required for said road ; and it appearing to me that the warrant heretofore issued by me has been returned by the Sheriff, and that the inquest by him called thereupon was unable to agree upon a valuation of the property. You are therefore hereby required to summon an inquest of three freeholders, having served a copy of this warrant on the parties, or their agents, of said county, who shall not be stockholders in said Little Miami Railroad Company, or inter-r J ested therein, together with said owners, or agents, to appear the premises above described, on the 19th day of August, 1847, then and there, in writing, to value and appraise the land above described, and ascertain and value the damages which the several owners above named will sustain by, the use or occupation of said lands so required by said Company as aforesaid, having due regard to the benefit such owners may derive from the locality and structure of said road, according to the provisions of the statute in such cases made and provided. Given under my hand and seal this 15th day of August, 1847.
    WILLIAM B. CALDWELL,
    
      President Judge.
    
    Exhibit C. referred to in the Bill.
    
      Proceedings of Board of Public Works.
    
    September 8th, 1847.
    Board met. Present — Messrs. McConnell, Wall, Ransom, Bates, Harris and Dickinson.
    Mr. Bates offered the following preamble and resolution :
    Whereas a survey, an exhibit of the grade, a plan of the superstructure, and an estimate of the costs of the road and fixtures of the Little Miami Railroad have been submitted to the Board of Public Works ; and whereas, a survey, an exhibit of the grades, and a plan of the superstructure, and an estimate of the cost of the road and fixtures of the Lake Erie and Mad River Rail Road, have been submitted to the Board of Public Works; and whereas, a survey, an exhibit of- the grades, a plan of the superstructure, and an estimate of the cost of the road and fixtures, of the Ohio Railroad, have been submitted to the Board of Public Works, therefore,
    
      Resolved, That the Board of Public Works do approve the plan and estimates of the cost of the construction of the aforesaid roads, and are of opinion that either of them will, within two years from the completion thereof, yield a net profit of Per cerlt• Per annum on ^ie money invested in the construction, and that they consider all of the works above named will be, when completed, of public utility.
    On the question of adopting the above preamble and resolution, the yeas and nays were demanded :
    Yeas — Messrs. Bates, Dickinson, McConnell' — 3.
    Nays — Messrs. Harris, Ransom, Wall — 3.
    So the question was determined in the negative.
    The following in relation to the same Railroad was then unanimously adopted:
    Whereas, a survey, an exhibit of the grades, and the plan of the superstructure and estimate of the cost of the road and fixtures of the Little Miami Railroad have been submitted to the Board of Public Works, therefore,
    
      Resolved, That the Board of Public Works do approve the plan and estimates of the cost of construction of the aforesaid road, and that they consider the same will be, when completed, of public utility.
    Columbus, January 14, 1838.
    Board met. ■ Present — Messrs. McConnell, Bates, Dickinson, Ransom, and Wall. The following preamble and resolution were adopted:
    Whereas, a survey, an exhibit of the grades, a plan of the superstructure, and an estimate of the cost of the road and fixtures of the Little Miami Railroad, have been submitted to the Board of Public Works, therefore,
    
      Resolved, That the Board of Public Works do approve the plan and estimates of the cost of the construction of the aforesaid road, and are of opinion that the said road will, within two years from the .time of the completion of the same, yield a net profit of two per cent, per annum on the money invested in its construction, and in the fixtures, engines, apd carriages, necessarily employed thereon.
    Further notices may be found in the Annual Report of Board Public Works for 1837-8, No. 19, Vol. Legislative Doc. of that session, and Annual Rep. for 1838-9, No. 50, 2d Yol. of Leg. Documents.
    The following exhibits the action of the City Council of Cincinnati as to the location on Front street:
    May 27th, 1841.
    
      Resolved, That the Little Miami Railroad Company have the privilege to lay down their rails on East Front street on the south side to Deer Creek, on condition that they McAdamize the street, except the gutters, from the corporation line to Spring-hill Avenue; and that they shall grade the same and put down the rails under the direction of the city surveyor; and provided the city shall reserve the right of withdrawing this privilege at any time they shall think that the public shall require it, provided that if the city withdraw said privilege, she shall give to the said Company six months notice of such withdrawal; and provided further, that said Company pay all damages that may arise to individuals in any change of grade, and on the express condition that no locomotive engine is admitted on said street.
    July 14th, 1841.
    
      Resolved, That the Little Miami Railroad Company have the privilege to lay down the rails on East Front street, on the south side near the south curb stone, to Deer Creek, on condition that they repair with stone so much of the said East Front street as is necessary to take up in laying down the rails for the railroad, and place the same in as good condition as it now is, and pay all damages that may arise to individuals in any change of grade, and on the express condition that no locomotive engine is admitted on said street — the street to be graded and the rails to be put down in such manner as to leave the surface of the street as level as the nature of the case will allow ; and the work to be done under the direction of the City Surveyor and Trustees' of the 3d Ward, who are to act under the directions of the City Council. Provided, that the City Council may withdraw from the said Railroad Company the privilege of using the said part of East Front street, hereby granted, by giving ^ie sa*d company six months notice of their intention to resume said street.
    April 10th, 1845.
    
      Resolved, That so much of the resolution passed by the City Council, July 14th, 1841, as prohibits the admission of any locomotive engine on the Little Miami Railroad on East Front street, between the corporation line and Deer Creek ; and also so much of said resolution as provides that the City Council may withdraw from the said Railroad Company the privilege of using , the said part of East Front street, for laying down their rails thereon, by giving the said Company six months notice of then-intention to resume the street, be and the same is hereby re- ( scinded.
    
      To E. Woodruff, Esq., President of the City Council of the City of Cincinnati:
    
    Sib. : — The Little Miami Railroad Company have established the location of their road up to the Corporation Line of the City of Cincinnati, and are now prepared, with the concurrence of the City Council, as provided in the Charter of the Railroad Company, to establish the location within the city. The Railroad approaches the city by a single track per horse power through'Front street of the town of Fulton, and the Company is desirous to continue said location within the city along the same street to a junction with the Miami Canal.
    Respectfully,
    A. H. EWING,
    
      Commissioner.
    
    Cincinnati, April 21, 1841.
    The President read to the Board a communication from A. H. Ewing, Commissioner, “that the Little Miami Railroad Company have established the location of their road up to the corporation line of the city, and are now prepared, with the ■concurrence of the City Council, as provided in the Charter of the Railroad Company, to establish the location, of the road . _ within the city.” Referred to the Committee on Roads and Canals.
    Council Chamber,
    Cincinnati, Sept. 23, 1847.
    I certify that the foregoing resolutions, communication, and proceedings of the City Council, are correct copies from the Records in the City Clerk’s Office.
    CHAS. SATTERLY,
    
      City Clerk.
    
    The Answer admits that complainants own the property in question.
    Claims that defendants by their Charter and its amendments have been authorized to construct a Railway with a double or single track, from, at, or near Springfield, through Xenia, down the valleys of the Little Miami and Ohio, to Cincinnati, and such points in that city as may be agreed on by the City Council of Cincinnati and the directors of the Railroad Company.
    That defendants are also authorized to take possession of, and use such land as may be indispensable for the construction and maintenance of their road, to be paid for as provided in the Charter.
    That they have, likewise, after having selected a route, a right to change it when a cheaper and a better can be obtained, or when the difficulty of construction or of procuring right of way, presents obstacles to its construction on the first location.
    That complainant’s land lies almost wholly in Fulton, front*ing on the Wooster Turnpike, and that defendants, by their Charter, have a right to contract with the .Turnpike Company for the use of a part of their road : in pursuance of which they made a conditional agreement with the Turnpike Company, (of which the answer attaches copy,) permitting defendants to lay their rails on the southern side of the Turnpike, which in the year-they did accordingly, from the toll-gate pass the greater part of complainants’ property to Cincinnati, but this location was not permanent, nor had any permanent location been made until a few months before filing the answer.
    That within a year previous it had become apparent that the Railroad could not remain on the Turnpike, on account of the increasing travel and business on both roads, and the narrowness of the Turnpike: that during the preceding fall great disturbances had arisen, and threats of violence made, on account of the use of the Turnpike by defendants, and great complaints by the people of Fulton of the inconvenience and injury suffered by them on account of the use of the Turnpike for defendants’ road.
    That, desirous of accommodating the public, defendants did in the preceding autumn or winter, publish their determination to remove their Railroad south of the present line, and had since endeavored to procure the right of way over all the land south of present line, and west of the Turnpike gate to the city limits, and had purchased large parcels of said land, and had used all fair means to purchase complainant’s property, or the right of way over it, especially before Thomas Moorhead and Foster purchased an interest in it of John Moorhead, their co-complainant. But complainants refused all reasonable offers, and to prevent, (as the defendants charge,) their obtaining right of way at reasonable cost, determined to build a saw-mill, on the line where the road must run, and proceeded to dig for a foundation, but had not as yet laid any part of it, and might with little trouble remove the mill nearer the river, and out of the way of the proposed track.
    That if complainants contracted for materials, &c., it was with full knowledge of defendants’ intentions, and as defendants had been informed, with injunctions of secrecy, by Thomas Moorhead, to the contractors, in order to keep the preparations from defendants’ knowledge.
    That defendants did obtain a condemnation of said property at the valuation, &.C., as stated in the bill, from which complainants took no appeal, and expect to build their road over said land. . _
    Denies that defendants ever located their road on the line High street, but that examinations and surveys only were made, by which it was ascertained that from the slipping of the earth and the unevenness of the route, it could not be used.
    That defendants are authorized to construct a double track, which the increasing business now requires. Cannot do so on the present line, nor any where except on the route proposed to the south of it.
    That defendants do not believe the location proposed for their road will injure complainants’ property, and that they are willing to purchase the whole of it at a fair price, and are willing the Court should have the value of it ascertained, and to pay such value.
    That it is a very unsuitable place for a saw-mill.
    Sealed and signed by Jeremiah Morrow, President.
    Upon this answer and affidavits the respondent asks a dissolution of the injunction.
    
      Storer & Gwynne, for Complainants.
    
      Fox &f French, for Defendant.
   Birchard, C. J.

This motion presents the question whether the Little Miami Rail Road Company having once located and constructed their road, have the power to re-locate and re-construct it on other and distinct ground ? An answer to the inquiry must be given from the charter of the Company and the amendments which it has received. Unless the power is therein expressly granted or necessarily and fairly to be implied from the express grants it cannot be exercised. The first section of the respondent’s act of incorporation authorized the construction of a rail road terminating at Cincinnati, and at such a point in the city as might be agreed on by the City Council of Cincinnati and the directors of the Company. The tenth section required the Company ,to select the route on which the road was to be constructecl> as soon as practicable, after making the examina- and surveys necessary to enable them to select the most advantageous line.

The twelfth section gives “ authority to vary the route and change the location after the first selection had been made.

1st. Whenever a better and cheaper route could be had.

2d. Whenever “ any obstacle to continue said location was found, either by difficulty of construction or procuring right of way at a reasonable cost.” 34 Local L. p. 4Ó4.

It is in virtue of the provisions of this last section that the right to re-locate the road and condemn the complainants property, is claimed.

Now, a moment may be well spent in considering the nature of the rights conferred, and the trust devolved upon the Company by their act of incorporation. Section 11 confers, in express terms, the right to enter upon, and take possession of, and use all such lands and real estate as may be indispensable for the construction and maintenance of said rail road, and the accommodations requisite to, and appertaining to them. In case of disagreement of the owner as to the price of any lands or materials required for the road, provision was made for the condemnation of the lands or materials, by an inquest of freeholders, &,c., against the owner’s consent. True, the valuation of the inquest was required to be tendered or paid to the owners, or deposited in some bank to their credit, before the title to the lands and materials could vest in the Company. These grants of power are in derogation of private right, and would be totally void but for the provisions of the constitution, which make private rights subservient to the public welfare. Admitting that the interest of the public were such as to warrant this extensive delegation of the right of sovereignty, or right of eminent domain, and it is quite certain that the power should be clearly expressed, or necessarily and clearly implied from what is clearly expressed in the grant. In such case the rule of construction should be strict. No State can ever be presumed to have parted with a portion of its sovereignty even to her own citizens, without a grant affirmatively made. And no derogatory of private right should gain anything by forced struction. The general rule requiring grants of this nature to be strictly construed is, in our opinion, the only safe one, and it should be adhered to with unyielding tenacity.

The respondents suppose a different rule of construction should prevail, and cite the decision in Bates v. Cooper, 5 Ohio Rep. 119. In that case it was contended that the act to provide for the internal improvement of the State by navigable canals, simply authorized the taking of materials to prepare the canal for public use, but conferred no authority to take materials for repairs subsequent to the completion of the canals. This Court, as then constituted, did not so construe that statute. And the learned Judge, who reported the opinion, says, that such a construction would be altogether too narrow for the liberal policy of that act. Yet it is strongly intimated, on page 120, that if the officers and agents in that case had not been exclusively public, engaged in the constructionof a great public improvement, for the sole benefit of the State, a different rule of construction would have prevailed. That had they been private corporators they would “ have been restricted to a rigid exercise of the literal power granted in their act of incorporation, to appropriate to their public structure private property.”

Whether in point of fact any distinction should exist in the,rules of construing the statutes providing for our system of public improvements and those providing for public roads by private corporators, is a question not now before us, nor does it seem that the case of Bates v. Cooper turned upon the question that the learned Judge discussed.

That statutes of this nature should be strictly construed, is a position abundantly sustained by the cases cited by complainants’ counsel.

This case stands thus: The corporators had the power to locate and construct a rail road. They could exercise this right but once without a further grant. To accomplish this object a most important attribute of sovereignty was bestowed upon them by the Legislature — the extraordinary reserved power of subjecting the property of private individuals to a public use. If it was intended that this should be a continuing power, one that might be exercised, and re-exercised again and again, as often as might suit the convenience of this Company, the Legislature should have so declared in express terms. They have not done so. The 12th section of the charter, when speaking of the right to vary the route and change the location, treats the road as still being in an unfinished state, as the location of a route for a road to be constructed, not a location of a road already completed. Even this right to change the location is restricted by the 12th section to the cases therein specified. It was to be exercised first, when the difficulty of construction interposed an obstacle ; a difficulty which could not happen after the completion of the structure. Or secondly, when the procuring of a right of way at a reasonable cost presented an obstacle. This could only happen before the completion of the road upon the route first located, for when the right of way had been secured and the structure finished thereon, the obstacle arising from the cost of that right of way, must have been met and.overcome, and could no longer exist. Or thirdly, when a cheaper and better route could, be had. This cause of changing the route also looks to a time prior to the completion of the structure. The new route must be both better and cheaper. The change here intended, must be a change of location merely, not a change of a finished road, because the cheapness has reference solely to the cost of construction, while the word better refers to the ultimate utility and convenience as a source of profit and public accommodation. If not so, why employ the word cheaper in reference to a finished and complete thing ? The term evidently has reference to the cost of the structure, and would be inappropriate to express the idea intended, if the object was to confer the power to make both a different location and a road altogether new.

The completion of this road upon the route first located, exhausted all the power of the Company. The force of the grant was then spent; and no matter how necessary the change of location may be at present, the Company must seek authority to make that change in some Legislative enactment, aside from their act of incorporation.

Counsel for respondent claim authority for the act complained of, under the 11th section of their act of incorporation. If we gather correctly their meaning, the validity of their argument depends upon the construction of the word maintenance, as used in this section. “ It shall be lawful for the said Company to enter upon, and take possession of, and use all such lands, and real estate, as may be indispensable for the construction and maintenance of said Rail Road,” &c.

They well say that the object of the Legislature was to have this road built, and maintained, as a road, and to confer the necessary power to build and maintain it, as a road suitable for the business of the community. But it by no means follows that this section authorizes the change of road set forth in the bill.

Two things are indicated too plainly by the language here employed, to admit of confusion. To build or construct a Rail Road, is one thing; to maintain the structure, after it is erected or built, is another. The word maintenance has reference to ■ the powers to be'exercised after the completion. This is the natural force of the expression.* Any other meaning is unnatural, and could not be inferred from the language of the act, without departing from the common acceptation of the words of the section, and without the least excuse for the departure.

It would be a matter of regret, if the utility of this improve- ■ ment were to be seriously impaired, by reason of an error in its original location. Yet even that would be no reason for permitting the corporation, under assumed powers, to violate private rights. It is the duty of the Court in such a case, -to keep them strictly within their granted powers; and if the necessity of the case requires an enlarged power, to force them to seek it at the hands of the Legislature.

Inasmuch as the facts presented in the answer and proofs, show that the contemplated change of road will be beneficial to the public, we have come to this conclusion the more cheerfully, from the consideration that an act of the General Assembly, of a date subsequent to the commencement of the proceedings complained of, (Yol. 46, Gen. Laws, p. 44, <§> 10,) has made suitable provision for the contingency.

Notice to dissolve refused, and injunction continued.  