
    Dillenbach v. City of Xenia.
    Where a city, under the authority given by section 3283, Revised Statutes, granted to a railroad company the right to construct and use its track in a street:
    
      Held: That the city is not liable to the owner of a lot adjacent to the street for damages to his property resulting from the use of the street by the railroad in the manner thus authorized.
    Error. Reserved in the District Court of Greene County.
    The plaintiff in error alleged in her petition in .the common pleas that she was the owner of a certain lot in the city of Xenia, described in her petition; that the city counoil granted to the Dayton and South Eastern Railroad Company the right to locate, construct and operate its railroad through and along one of its streets; that the railroad company did locate, construct and operate its road in the street, and that the property of the plaintiff abutted on the street so occupied by the railroad, and was damaged by the grading of the track and by the obstruction of the street by the track. And for this damage she asked a judgment against the city. • The petition was demurred to and the demurrer sustained in the common pleas. Upon this record the district, court reserved the case.
    
      F. P. Cunningham, for plaintiff in error.
    The sections of the statutes prescribing the powers and duties of city councils over streets, pertinent to this case, are §§ 2304, 2315, 2640, 3283, Revised Statutes.
    Section 2640 provides that the city council shall have the care, supervision and control of all streets, &c., within the city, and shall keep the same ópén and in repair and free from nuisance.
    Section 3283 provides that the authorities (city council in this case) having care of the, streets and a railroad company may agree upon the terms and conditions under which the said road shall use a part of the street.,
    Council has no right to grant the right of way through a public street, so as to entirely destroy it for the use of a street; or if they do, then the city must be liable under section 2640.
    The city council is not relieved from its responsibility to keep the street in question open and in repair, since it granted the right of way through said street to said railroad. It is as much liable to keep the street open and in repair to-day as it ever was before said railroad company got the right of way through said street. Just the same. And if the city council fails now to keep the street open and in repair the city is liable for damages. The petition alleges that said street is now entirely unfit for the use of a street; that plaintiff has no way of getting to her lot; that she cannot use said street for the purposes of a street. Cooley on Constitutional Limitations, 206.
    The city council could not have the cut made in the street without being liable for damages done the adjoining property, without giving notice to property owners to file claims for damages. Sections 2304 and 2315.
    Plaintiff never had notice that such cuts were to be made until after the railroad got the right of way through the street.
    If the city could not have made the out through the street without the city being liable for damages to adjoining property owners, then the city could not grant the right to do the same to the railroad and thereby relieve the city of liability for damages done.
    If the city makes an unreasonable cut, or a cut and grade, in improving a street, such a cut and grade as would not have been contemplated for the purposes of a street, then in that case the city would be liable. 7 Ohio St., 460.
    A person, in improving his lot, has only to improve with reference to a reasonable grade of the street for the purposes of a street, and not with reference to the grade of a railroad through the street. 7 Ohio St., 460.
    Now the petition states that the cut and grade made for said railroad is such a cut and grade as never would have been contemplated for the purposes of'a street.
    A city has no right to divert a street from the purposes of a street, or destroy the street, or do anything that excludes the original use of the street, or lay additional burdens upon the land, or destroy or impair the incidental easements of the adjoining lot owners in the street. This interest is protected by the Constitution, article I, sec. 19 and notes. 18 Ohio St., 92.
    Some of the authorities bearing upon’the question are: 10 Ohio, 160 ; 15 Id., 475 ; 30 Ohio St., 142 ; 67 Ill., 477; 64 Mo., 149; 85 Ill., 377; 45 Iowa, 406; 66 Me., 485; 2 Dillon on Mu. Corp., §§ 998, 1018, 1027, 1037.
    
      
      James Winans, for defendant in error.
    A municipal corporation has a double character, and acts in either of two capacities ; one its public, the other its private or corporate capacity. 1 Dillon on Mun. Corp., (2d ed.), sec. 39 and notes; 2 Id., sec. 764.
    For injuries resulting from the exercise of its corporate powers, from acts done in its private capacity, it may be liable to an action ; but for injuries resulting from the exercise of its public powers, from acts done in its public capacity, it is not liable unless an action be given by statute. 2 Dillon on Mun. Corp., sec. 764.
    We think that, in granting the right to the railroad company to construct and operate its railroad, as complained of by plaintiff, the defendant acted in its public character or capacity, and that, therefore, no action being given by statute in Ohio, it is not liable for the injuries resulting from that act. We think this because the legislature alone has power to authorize the taking of private property for public purposes; and, if the legislature may, and does delegate this power to a municipal corporation, the latter, in exercising the power, acts as the agent of the state, on behalf of the state and not for itself. The right to use the street for the purpose of a railroad is a franchise, and must emanate, either directly or indirectly, from the legislature. 18 Ohio St., 262; 2 Dillon on Mun. Corp., sec. 658.
    Section 3283 of the Revised Statutes of 1880 does delegate to the city the power to authorize the taking of private property for public purposes, because it authorizes it and the railroad company to agree, if they can, upon the terms upon which the streets, &c., maj' be occupied by the railroad company/authorizes it to authozlze the taking of the interests of abutting property owners whose interests in the streets upon which their property abuts is property. Crawford v. Delaware, 7 Ohio St., 459.
    Section 3283 confers upon muzzicipal or other corporations, &c., the right to grant only the public interest in the streets, &c., which they control, leaving the railroad company to procure the interests of individual owners of abutting property as they may. If this was all the defendant did or was authorized to do, no damage resulted to plaintiff from its act. The railroad could not be constructed upon the grant of the municipal authorities alone, any more than it could on the authority or grant of the abutting property holders alone. And if the company did construct its road on the street in front of plaintiff’s property without first obtaining her leave or condemning her interest, the tort was the railroad company’s, not the city’s.
   McCauley, J.

Section 2640, Revised Statutes, provides that the city council shall have the care, supervision and control of all public highways, streets, avenues, alleys, sidewalks, public grounds and bridges within the corporation, and shall cause the same to be kept open and in repair and free from nuisance. Section 3283 provides that if it be necessary, in the location of any part of a railroad, to occupy any public road, street, alley-way or ground of any kind, or any part thereof, the municipal or other corporation * * * and the company may agree upon the manner,' terms and conditions upon which the same may be used or occupied; and if the parties be unable to agree thereon, and it be necessary * * * to use or occupy such road, street, way or ground, such company may appropriate so much of the same as may be necessary for the purposes of its road, in the manner and upon the same terms as is provided for the appropriation of the property of individuals ; but every company which lays a track upon any such street, alley, or public ground, shall be responsible for injuries done thereby to private or public property lying upon or near to such ground * * *

The claim of the plaintiff in error is that the city was under obligation to keep the street open and in repair, and free from nuisance, and that it failed to perform this obligation when it permitted the railroad track to be laid in the street. Section 2640 imposes this duty on the city, and section 3283 authorizes the city to permit its streets to be occupied by railroad tracks subject to liability for injury done thereby to the owners of adjacent property.

When the city authorized railroad tracks to be laid in one of its streets, it granted nothing only its rights in the street, leaving the rights of adjacent lot owners therein unimpaired. The building of the railroad track could have been enjoined by the adjacent lot owner until the right to use the street for this purpose had been appropriated. Railway Co. v. Lawrence, 38 Ohio St., 41.

The duties imposed by section 2640 are modified by the provisions of section 3283, so that permission given to do what is authorized by section 3283 would not be a' violation of section 2640.. These two provisions of the statute relating to the same subject matter are to be construed together, and giving permission to do what is authorized by one section should not be held to be a violation of the other.

Judgment affirmed.  