
    City of Zanesville v. Fannan.
    
      Municipal corporations — Power and duty as to streets under their control — Sections 1878 and 2640, Rev. Stat. — Statute creating new right — Remedy exclusive or cumulative, when — Railway tracks in public street — Obstruction to drainage — Respective liabilities of municipality and railway company — Section 3283, Rev. Stat.
    
    1. Municipal corporations are invested with the power and charged with the duty of keeping the streets and highways under their control free from nuisance; (Revised Statutes, sections 1878, 2640), and a liability arises from the omission to perform that duty, for damages resulting from such nuisance after notice to the municipal authorities of its existence; and, though the person who caused the nuisance inay be also liable, and responsible over to the corporation for whatever damages it is compelled to pay in consequence of it, that does not affect the liability of the municipality to the party injured.
    2. Where a statute which creates a new right, prescribes the remedy for its violation, the remedy is exclusive; but when a new remedy is given by statute for a right of action existing independent of it, without excluding other remedies already known to the law, the statutory remedy is cumulative merely, and the party may pursue either at his option.
    3. Railroad companies which had obtained permission from a municipal corporation to lay their tracks in a public street, so constructed them as to obstruct the drainage provided for the street, in consequence of which water from rainfalls was accumulated and forced on to and over the plaintiff’s lot abutting on the street, flooding the cellar of his dwelling house thereon situate, and otherwise injuring his premises. The municipal authorities being notified of the situation and requested to remove the obstruction, declined to act. Held, in an action against the municipal corporation: '
    1. The obstruction constituted a nuisance, and the municipality is liable for the damages occurring from it after the notice and refusal to act.
    2. That its liability is not affected, nor the remedy against it taken away, by section 3283, of the Revised Statutes, which gives the party injured a remedy against the railroad companies.
    
      3. But in the action against the municipal corporation, the plaintiff is not entitled to recover damages which are in the nature of compensation for the additional burden in the street arising from the location and construction of the railroad tracks therein; for damages of that character the municipal corporation is not liable. Steubenville v. McGill, 41 Ohio St., 235, approved. Dillenback v. Xenia, 41 Ohio St., 207, distinguished.
    (Decided December 17, 1895.)
    Error to the Circuit Court of Muskingum county.
    The original action was brought by Fannan against the city of Zanesville, in the court of common pleas of Muskingum county. The petition alleges, that the defendant is a municipal corporation of this state, and since the year 1880, has been a city of the third, grade of the second class ; that Zane street, and some other streets connecting with it, are, and since the year named have been, public streets of the defendant, and Rishtine alley is and has been a public alley within the city; which streets and alley the defendant had improved by gutters, drains, and by widening, and otherwise, prior to the occurrences complained of; that the plaintiff, since the year mentioned, has been and still is the owner of a lot fronting on Zane street, and bounded by Rishtine alley in the rear, and that relying on his right to the free and unobstructed use of the street and alley for all lawful purposes, he improved his lot by erecting thereon a dwelling’ house, which he occupies as a home, and made other convenient improvements thereon, to the enjoyment of which, the use of the street and alley, and their connecting streets, is necessary.
    The petition then alleges that:
    “On the 30th of November, A. D. 1887, the defendant, by its city council by ordinance, which went into effect, consented and authorized certain railroad companies, to-wit: Two corporations, one entitled ‘The Zanesville, Newcomerstown and Cleveland Railway Company, ’ and the other ‘ The Zanesville, Mount Vernon and Marion Railway Company,’ to take possession of and use the westerly end of Zane street, from the north line of said street near the southwest corner of lot 18 in said addition, to and across said Rishtine alley, and thence to said Fifth and Howard streets, and also that much of said alley, for the purpose of constructing, maintaining and operating railroads thereon. The said The Zanesville, Newcomers-town and Cleveland Railway Company — having no line of its own — afterwards transferred the rights granted it as above stated to the Baltimore and Ohio Railroad Company; and thereupon said last named company — a corporation — which then possessed all necessary main tracks required by it along its line — and the said The Zanesville, Mount Vernon and Marion Railway Company, took possession of the whole of said part of said Zane street and of said part of Rishtine alley, and of said way leading to Fifth and Howard streets, and laid tracks thereon, raising embankments, where said tracks crossed the city gutters and drains in said street and alley, and putting down cross ties and laying and fastening iron rails thereon and using and operating the same for railway purposes, transporting to and fro cars and engines, and entirely blocked and obstructed said part of said street and said part of said Rishtine alley, completely destroying the western entrance and approach to said alley, and wholly obstructed and prevented passage through said street and alley and the use thereof; and . ever since on or about the twenty-eighth (28) day of November, A. f). 1889, the said parts of said street and alley, by reason of the premises, have been and are now, wholly' obstructed and rendered useless for the purposes for which they were laid out and appropriated, and the plaintiff and his family have been, and are, deprived of access by wagons and teams to the rear of said lot by said alley, and have no other access thereto; and said railroad companies, by the laying of such track, have encroached and advanced upon the real estate of the plaintiff above described — with the consent and permission of the defendant and its officials. Moreover, the said embankments and track of said railways have during said time so obstructed, and do now so obstruct the passage of water along the aforesaid public gutters and drains in said street and alley from the higher, ground east of plaintiff’s said lot, that said water in each heavy rain because of said embankment and track has overflowed said gutters and drains and came upon plaintiff’s lot and into his cellar; by reason of all said acts, ■ said overflow of said waters, and difficulty of ingress and egress, the occupancy of plaintiff’s said dwelling and lot has become uncomfortable and undesirable, and the value of his said dwelling, lot and appurtenances has been greatly diminished; all without compensation or damages paid, tendered or offered to the plaintiff therefor by any person or corporation whatever. On and after the 9th day of December, A. D. 1889, the defendant, by its city council, was duly and fully notified of the aforesaid obstructions of said street and alley, and of the matters hereinbefore alleged, and prayed for the restoration of said street and alley and the removal of said obstructions from each of them and from said drains, but the defendant and its officials wilfully failed, refused and neglected to remove or cause to be removed said obstructions from said street and alley, and said obstructions now continue contrary to law, and without any fault, permission or negligence of the plaintiff, whereby he has been damaged in the sum of one thousand dollars in the particulars and in the manner aforesaid.”
    A general demurrer to the petition was overruled, and upon trial of the issues joined, the plaintiff recovered a judgment, which was affirmed, on error, by the circuit court; from that judgment of affirmance this proceeding in error is prosecuted.
    
      Isaac Humphrey, for plaintiff in error.
    It was under the authority of section 3283, Revised Statutes, that the city of Zanesville, by its council, granted the railroads the privilege of occupying the streets and alleys, complained of in Fan-nan’s petition. That the city council had a perfect right to pass the ordinance, granting the railroads the occupancy of the streets, under this statute there can be no question. In fact the city had no alternative, as under the above quoted statutes, the railroad could take by condemnation what they sought, if the authorities of the city failed to come to an agreement, and the law makes it incumbent on the authorities of the city and railroads, to agree if possible. No hardship is worked upon the abutting property holders in this case as the statute makes every provision for them. In case of damage, they can bring an action against the railroad companies at any time within two years; and even though the railroad companies were not financially responsible; an injunction would stop their operations until a settlement was made. We do not understand that the city can be held responsible for damages, when they grant privileges to railroads under this statute, in any event, and it has been so held in at least one decision of the supreme court of Ohio, that of Dillenbach v. City of Xenia, 41 Ohio St., 207. See also, 45 Ohio St., 309; 40 Ohio St., 496 ; 38 Ohio St., 41; 35 Ohio St., 284.
    We think that Fannan’s remedy was clearly against the railroad companies and not against the city.
    
      Granger <& Granger, for defendant in error.
    First — -Did the city after having accepted said streets and alleys have the power to improve the same, make drains and gutters, etc., on them?
    Second- — Having the power to make said drains and gutters, and having exercised such power, what is the duty and liability of the city as to said drains, gutters, etc.?
    The words of sections 1692, 2403, 2404 and 2640, Revised Statutes, plainly and clearly confer upon the city council the power to improve streets, etc., and make drains, sewers and ditches for the purpose of draining them and to repair them when made.
    The second question to be considered is, what is the duty and liability of the city as to its drains, gutters, etc.? Section 2640, already quoted, concludes with this imperative clause: “And shall cause the same to be kept open and in repair, and free from nuisance. ’ ’ This section confers no discretionary power ; it is mandatory.
    
      Among the special powers, the exercise of which is for the private benefit and advantage of the municipality, is that which authorizes them to construct, control, and repair common sewers, and accordingly the grant of this power is regarded as raising an implied promise on the part of the corporation to perform with fidelity and care all duties growing out of its exercise, and this promise inures to the benefit of every individual interested in their performance. Am. & Eng. Ency. of Law, vol. 6, page 23; Cooley’s Const. Lim., 304; Win v. Rutland, 52 Vt., 481; People ex rel. v. Common Council of Detroit, 28 Mich., 228; 15 Am. Rep., 202; Note to Conrad v. Trustees of Ithaca, 16 N. Y., 158.
    While the g’rant of these discretionary powers raises an implied promise or obligation on the part of the city generally, our case is even stronger. Our legislature was not content to rely upon- this implied promise or obligation; so they made the implied obligation an express obligation of the city by enacting said section 2640.
    In respect to such duties a city or village is not a mere municipal corporation, but is a private one; and liable on the same principles, and to the same extent, as private corporations. Lloyd v. City of New York, 5 N. Y., 369; Hill v. City of Boston, 122 Mass., 344; 23 Am. Rep., 332.
    Ministerial duties as distinguished from those which are discretionary or quasi judicial, are said to be such as are absolute, certain and imperative. Mills v. Brooklyn, 32 N, Y., 489.
    The right conferred upon municipal corporations to construct sewers imposes no imperative duty to construct them. The duty created is in its nature judicial, requiring the exercise of deliberation, judgment and discretion. It follows that the corporation is not liable to a civil action for failing to exercise the power, nor for any error of judgment in its exercise. But having once elected to act under this power, and by ordaining the Construction of a sewer determined that the necessity for one exists, the judicial duty and discretion ceases, and the prosecution of the work becomes at once ministerial in its character, and where a judicial duty ends and a ministerial duty begins, there immunity ceases, and .liability attaches. Rhodes v. Cleveland, 10 Ohio, 159; same case approved in Barnes v. District of Columbia,, 91 U. S., 551; 6 Am. and En. Ency. of Law, 28; Nims v. Troy, 59 N. Y., 500; section 1045 of Dillon’s Mun. Corp.; Barton v. Syracuse, 36 N. Y., 54; section 1051 (Dillon); Mr. Gould on Waters, 272.
    The eitjr is liable if the embankment of a street railroad, properly authorized, causes the surface water of a large district to flow upon adjoining premises. Damour v. Lyons City, 44 Iowa, 276; Swenson v. Lexington, 69 Mo., 157; Inman v. Tripp, 11 R. I., 520; Murphy v. Indianapolis, 83 Ind., 76; 32 W. L. B., 378; Steubenville v. McGill, 41 Ohio St., 235.
    Plaintiff in error relies upon section 3283, Revised Statutes, as relieving it from responsibility and liability.
    But while exercising discretionary powers under section 3283, Revised Statutes, the plaintiff in error is not relieved from liability imposed by section 2640, Revised Statutes. But was not the city also liable to him because it permitted said railway companies to completely destroy Zane street as a thoroughfare? Railroad Co. v. Defiance, 52 Ohio St., 262.
   Williams, J.

The question argued by counsel, and the only one presented by the record, is whether the facts stated in the petition entitle the plaintiff to any .part of the relief demanded. It is contended they do not, because by section 3283, of the Revised Statutes, a remedy is given against the railway companies that placed the obstruction in the streets of the defendant which caused the damages suffered by the plaintiff.

That section reads as follows: “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 corporations, or public officers or authorities, owning or having charge thereof, 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, in the judgment of the directors of such company, to use or occupy such road, street, alley, 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 that lays a track upon any such street, alley, road or ground, shall be responsible for injuries done thereby to private or public property lying upon or near to such ground, which may be recovered by civil action brought by the owner, before the proper court, at any time within two years from the completion of such track. ”

If the defendant had put its streets in the condition complained of, its liability could not be doubted. Rhodes v. Cleveland, 10 Ohio, 159; DilIon on Mun. Corp., 4th Ed., sections 1017, 1018; Beach on Pub. Corp., section 1494. Any permanent obstruction or incumbrance in any street of a municipal corporation is made a nuisance by statute (Revised Statutes, section 6921), which the municipal authorities are invested with the power and charged with the duty of removing. (Revised Statutes, sections 1690, 1878, 1934 and 2640.) And those powers and duties continue when a railroad company has placed its tracks in a public street, whether they were so placed under permission granted by the municipality, or under an appropriation for that purpose. In neither event are the municipal authorities divested of their powers, nor absolved from the per for manee of their duties. Nor, does section 3283, contemplate that a railroad company in the useof a street for the purposes of its road, under a right acquired in either of the .modes provided, may destroy the same, or create nuisances therein. On the contrary, it contemplates that the company shall exercise its rights with proper regard to those of the public in the street, and that the street and its uses by the public shall be preserved and protected, with such additional use as may be necessary in the proper operation of the railroad, which is itself a means of public use. If the permission to occupy the street be granted by the municipal authorities, they may, and should prescribe such reasonable regulations and conditions as will prevent the creation of nuisances, and preserve, and best protect the free and full use of the street by the public. And in the proceeding to acquire the right by appropriation, it cannot be assumed as a proper basis for the estimation of compensation or damage, that the company will destroy the street, or create nuisances therein.

The next section requires that such companies, when a public highway is crossed or diverted by their roadway, shall with reasonable promptness restore the highway to its former condition of usefulness; and this requirement of the statute is but a declaration of the common law rule. “The common law rule is clear,” says Tiedeman on Municipal Corporations, section 306, “that when a railroad company or other corporation lays out a railway or canal across a public street or highway, it must restore and afterwards keep the highway in the same condition in which it was originally used by the public. This duty is imposed upon such a company by implication of law, where there is no express statutory requirement.” And see State v. Railway, 35 Minn., 131; Railroad v. Defiance, 52 Ohio St., 262, 314. This obligation of the company is inseparably connected with the right to use the highway, and is a condition to the exercise of that right, which it may be compelled to perform so long as it continues to use the highway, either by appropriate proceedings by the state, or by the local authorities. State v. Railroad, 36 Ohio St., 434; Railroad v. Commissioners, 31 Ohio St., 338. The duty rests upon the principle that the public use is the dominant interest in the street, and that it continues to be so notwithstanding the construction of the railway in or across it. Thereafter, the rights of the public and the railway company are co-ordinate and equal, and the latter is bound to so construct and use its roadway as not to interfere with the use and enjoyment of the street by the public further than is essential in the proper operation of the road; and the principle applies as well when the railway is laid lengthwise in the street, as when it is laid across it. And hence, as said by the supreme court of Michigan, in Detroit v. Ft. Wayne & E. Railway Co., 90 Michigan, 646. “A city is not under obligation to conform its treatment of its streets to the construction of the railroad company’s road bed, but, on the contrary, the company must conform the construction of its road bed to such reasonable regulations as are made by the municipality in the reasonable exercise of its powers respecting the use, control and regulation and improvement of its streets.” And that obligation, the authorities maintain, may be enforced by mandamus or other proceeding. Elliot on Roads, page 600; Cooke v. Railroad Corporation, 133 Mass., 185; Manleys. St. Helen, etc., Railroad Company, 2 Hurl. 6 N., 840; Railroad Company v. State, 37 Ind., 489; State v. Gorham, 37 Me., 451; Cambridge v. Railroad, 7 Met., 70; Rex v. Railroad, 9 Car & P., 494; State v. Railroad, 36 Ohio St., 434; Railroad v. Commissioners, 31 Ohio St., 338; Detroit v. Railway Co., supra.

The streets of a municipal corporation, then, remaining within its control and supervision, attended with the duty to keep them free from nuisance, notwithstanding the laying of a railway therein, can it be relieved from liability for its negligent omission of dutjq because the railway company is itself answerable for the damages occasioned by a nuisance caused by it? In section 1037, of Dillon on Mun. Corp., it is said: “Towns an cities in the New England States are obliged, as we have seen, by statute, to keep their highways and streets in repair, and railroad companies in the same states have frequently been authorized by law to construct th&vr roads over public highways and streets, the effect of which may be to cause the latter to be out of rep>air. Under these circumstances the question arises, if a person suffer damage by reason of a defective highway or street thus occasioned, who is responsible, the railroad company which caused the defect, or the town or city which is charged with the general duty of maintaining and keeping in repair the public way ? The course of decision is to hold the town or city primarily responsible to the person sustaining the injury, thus compelling it, when liable, to seek indemnity from the railroad company.” The author cites many cases in support of his statement, and in a note to the section it is said the rule holds good in other states; and among the other cases cited to the note is Steubenville v. McGill, 41 Ohio St., 235. It is further said in the note, that the person sustaining the injury “may, of course, elect to proceed at once against the railroad- company if he chooses. The primary duty is on the city, although, as between it and the railway company the latter is bound to repair. ’ ’

These views are fully supported by the cases. In Sides v. Portsmouth, 59 N. H., 24, it is held: “If a railroad, having the right to cross a highway, does not leave it reasonably safe, and a person is injured thereby, the town may be held liable.” Bingham J., in that case, says: “If a railroad company, acting under their charter, creates an obstruction in the highway by which a traveler sustains damage, the town is answerable as if the same acts had been done by an individual. ’ ’

Scranton v. Catterson, 94 Pa. St., 202, was a case where a party received an injury by reason of a water plug which was placed in a street of the citjr of Scranton, by a water company under authority from the state, before the city became incorporated. The city asked the court to charge the jury that if it (the plug) was so placed in the street under such authority, it was not liable; which the court refused to do. On error, the supreme court affirmed the judgment, holding: “That it mattered not who placed the obstruction in the street provided the city had notice of its existence and failed to remove it. ” So, in Eyler v. Commissioners, 49 Md., 257, where a person was injured by reason of a defective bridge which had been erected in a public highway by a canal company, which was charged with the duty of keeping the bridge in repair, the county commissioners, however, being required generally to keep all public bridges in repair, it was held the commissioners were liable. The court say: “The fact that the canal company is bound to repair the bridge does not absolve the county commissioners from their primary duty to the public, nor is their liability affected by the fact that the appellant could, if he had chosen, have brought his action against the canal company.” But, says the court, “while we thus maintain the liability of the commissioners to the appellant in this action, the canal company is by no means discharged from its obligation to maintain and repair the bridge, nor are the commissioners left without remedy against the company. Upon the principles decided in many of the cases referred to, as also by the supreme court of the United States, in The City of Chicago v. Robbins, 2 Black., 418, and4 Wal., 657, they may have their remedy over against the company for whatever damages may be recovered against them in this action.” Among the authorities in the same line which we have examined, are the following: Phillips v. Veazie, 40 Me., 96; Currier v. Lowell, 16 Pick., 170; Elliot v. Concord, 7 Foster, 204; State v. Gorham, 37 Me., 451; Watson v. Tripp, 11 R. I., 98; Krittredge v. Milwaukee, 26 Wis., 46; Swenson v. Lexington, 69 Mo., 157, 166, 167.

In the ease of Steubenville v. McGill, 41 Ohio St., 235, this court held a city liable for injuries caused by an excavation made by a railroad company between its tracks which were laid in a street of the city under an ordinance granting the company the authority to place them there. The city pleaded the ordinance as relieving it for responsibility for so much of the street as was occupied by the railway, averring that the place where the plaintiff was injured had not been used, maintained or kept up as a street or highway since the railroad was constructed, and was in the exclusive possession of the company. In affirming a judgment sustaining a demurrer to the answer, the court held: “The city’s supervision of and responsibility for the street subject only to the use by the company as granted, continued. ’ ’

And in Cardington v. Fredericks, 46 Ohio St., 442-447, it is declared, that section 2640, of the Revised Statutes, which gives to municipal corporations the care, supervision and control of their public streets and enjoins upon them the duty to keep the same open and in repair and free'from nuisance is, “in effect, a requirement that the corporation shall prevent nuisances therein;” and, “by allowing a street to become so out of repair as to be dangerous, the corporation itself maintains a nuisance;” and, although the statute does not in terms declare a liability for the failure to perform the duty, “a right of action for damages caused by such neglect arises by the common law. ”

The municipal corporation being, then, liable at common law for permitting a nuisance in a street under its control, and railroad companies, like an individual, being also liable for creating such a nuisance, section 3283, in so far as it provides for an action against the railroad company for damages thus caused, creates no new right, nor does it purport to take away any of the remedies existing- at the time of its enactment. The rule is well settled, that where a statute creates a new right, and prescribes the remedy for its violation, the remedy thus prescribed is exclusive ; but when a new remedy is given by statute for rights of action existing independent of it without excluding’ other remedies already known to the law, the statutory remedy is cumulative merely, and the party may pursue either at his option. Darling v. Peck, 15 Ohio, 65-71; Dunn v. Kanmacher, 26 Ohio St., 497; Portland v. Railroad Co., 66 Me., 485.

We conclude, therefore, that section 3283, of the Revised Statutes, does not take away, or affect the remedy against the municipal corporation in cases of this kind. But, that section has a purpose and scope somewhat beyond that of giving a remedy ag’ainst the railroad company for damages in this class of cases. It authorizes the recovery of damages which are in the nature of compensation for the additional burden in the street arising from the proper construction and operation of the railroad therein, such as the adjacent property owner would be entitled to, in an appropriation proceeding’ instituted by the company, or a proceeding to compel an appropriation. For damages of that character, we apprehend, the municipal corporation cannot be held; and, in that, we think, consists the distinc tion between the ease of Dellenbach v. Xenia, 41 Ohio St., 207,and that of Steubenville v. McGill, supra, and also this case. There being no showing in the record to the contrary, we must assume the plaintiff was properly limited in his recovery by the trial court.

Judgment affirmed.  