
    Gas Light & Coke Co. v. Columbus.
    
      Municipal corporations—Power and authority over streets—Gas companies, laying pipes therein, under grant from city, do so subject to power of city to change grades—No action for damages will lie, unless wantonness or negligence intervenes.
    
    1. The power to grade and improve streets is conferred upon municipal authorities for the public benefit. It is a continuing power, and is not exhausted bj’ the first exercise of it; nor 'can it, in the absence of statutory authority, be ceded nor bargained away; nor can one council, by its exercise, abridge the capacity of its successors to perform their duties in that behalf as the public interest may demand.’
    2. A gas company laying its pipes in the streets of a city, under a grant from the city, in conformity with an established grade, does so Subject to the right of the city to change the grade of the street whenever the necessities of the public require it, and, in the absence of wantonness or negligence on the part of the city, the company cannot maintain an action for damage occasioned by the necessity of taking up and relaying its pipes in order to accommodate them to the new grade.
    (Decided Jan. 24, 1893.)
    Error, to the Circuit Court of Franklin county.
    The plaintiff in error commenced the original action by the filing in the court of common pleas of its petition, as follows:
    ■ “ Thé plaintiff, The Columbus Gas Eight & Coke Company, is a corporation duly organized under the laws of this state, for the purpose of supplying gas for lighting the streets and public and private buildings of the city of Columbus. The defendant, the said city of Columbus, is a municipal corporation of this state, located in Franklin county and organized as a citj^ of the first grade of the second class.
    • “The plaintiff is, and, for more than thirt3' years last past has been, the owner of a certain easement or right in the public streets and alleys of the defendant, duly and for sundry valuable considerations granted b3r the defendant to the plaintiff, to-wit: The right to la3' and maintain its pipes
    in the said public streets and alle3rs for the purpose of conveying gas to the said cit3r and the citizens thereof.
    “In the exercise and enjoyment of said right, and in accordance with the terms and conditions of the same, the plaintiff, several years prior to the year A. D. 1887, for the purpose of conveying gas to the said city and the citizens thereof, laid in that part of Broad street (one of the public streets of said city), between Winner avenue and Reed avenue, and in conformity with the grade of said part of said street, which was then already established, a main-pipe and a service pipe, and continued to maintain and use said pipes for the purposes aforesaid, until, in the summer of 1887, the defendant changed the grade of said part of said street, excavated the ground and lowered the level thereof, and thereby interfered with plaintiff’s said pipes, necessitating the removal or abandonment of the same and the relaying by plaintiff, of pipes to conform to the new grade, to plaintiff’s damages in the sum. of $406.60, with accuring interest.
    “ Plaintiff filed its said claim for damages with the clerk of said city of Columbus, on the 24th day of January, A. D. 1888, but the same is still wholly unpaid.
    Wherefore plaintiff asks judgment against the defendant for the said sum of $406.60, with accruing interest.”
    To this pleading the city, by its solicitor, interposed a general demurrer, which, being overruled, the cause was tried, resulting in a judgment for plaintiff. The circuit court reversed the judgment, and ordered the cause remanded.
    
      R. H. Platt, for plaintiff in error.
    
      Paul Jones and Florizel Smith, for defendant in error.
   Spear, C. J.

The single question is as to the sufficiency of the petition. If that states a cause of action, the judgment of the circuit court should be reversed; if not, the opposite result follows.

It will be noted that there is no direct allegation that the grant from the city gave the company the right to maintain its pipes at any particular place in the street, nor at any prescribed depth beneath the surface. Nor is it averred that the action of the city was, in anjr way, wanton, nor that the change of the grade of the street was unnecessary; and the presumption is that the city acted, in that behalf, lawfully, and without negligence. Nor is it pretended that the city has denied the company’s right to maintain its pipes in Broad street. The dispute involves only the right to maintain them where first laid.

The company’s claim is that, while the consent of the city must first be obtained, the city having the right to make reasonable regulations as to the terms and conditions on which the company may occupy, yet, when the city has given its consent, lias made the grant, the right in the streets is in the nature of an easement which then belongs to the company by force of the statute, and the city cannot interfere with that right, save upon condition of awarding compensation for resulting damage.

It is freely, conceded that the company is a public agency. It is further conceded that the use of streets and alleys for gas pipes, through which gas is to be conducted for the use of the city and its people, is a recognized public use and purpose, and that the general right to so lay and maintain such conductors is created bj' statute. This is, however, upon condition of consent by the municipal authorities, and under such reasonable regulations as they may prescribe. And cities are specially authorized to provide for the laying down of gas pipes.

But, while all this is conceded, it must always be kept in mind that the primary use of the streets is not for the laying of gas pipes. That is but an incidental, a secondarjr, use. Above all other uses is the accommodation of the public travel. Our statute, sec. 2640, prescribes the city’s duty thus: “The council shall have the care, supervision and control of all public highways, streets, avenues, * * * within the corporation, and shall cause the same to be kept open and in repair, and free from nuisance.”

This necessarily implies the duty, as well as the right, to grade, in order that the streets may be accessible, convenient, and in good repair. It also implies that the duty as well as the right is a continuing one. The duty is not to open the streets and put them in repair, but to keep them open and in repair. This matter of grading is not, necessarily, a single operation. The duty of exercising the power anew, therefore, follows the changing conditions and needs of the public. The power is a legislative one. It is to be enforced by ordinance. The council is to perform the duty, and it is elementary, we suppose, that the council cannot, in the exercise of legislative powers, bind its successors, unless authority from the state to do so is clearly indicated. The corporation cannot abridge its own legislative power.

It would follow from this that in prescribing regulations, or annexing conditions, by the city, to the exercise by a gas company, of a right in a street to enjoy the same for this secondary use, the council has not the authority to cede away, nor bargain away, the right of the city to perform its public duties, especially as to a primary use of its streets, nor to abridge the capacity of its successors to discharge those duties, unless some-express provision of statute is found to that effect, and that is not claimed.

The power to re-grade, and the duty of exercising the po-wer under proper conditions, being established, does liability for damage follow its exercise in such a case as the one at bar?

If it can be maintained that the company has acquired an easement giving it the right to continue its pipes at the particular place, in the street where they were placed, there would be strong reason for concluding that liability for damage would follow their disturbance by the pfocess of grading; otherwise, not.

It is insisted that the easement of the company, acquired by the grant from the city, is a right as substantial as that of an abutting owner, and that its right to compensation for interference with pipes laid in conformity with an established grade, is as well founded as that of an owner of abutting property to compensation for an interference arising in the same way.

There are some points of similarity between the two situations, but we think there are more differences. The street is often dedicated by the owner, or his predecessor in title, to public use, and if required by appropriation, he is liable to compulsory contribution for payment of land taken. By reason of owning the abutting land, he has a property right in the street itself, as much property as his lot. Under some circumstances, trees growing in the street in front of his lot are his property, and he may maintain them there, subject only to the free use of the street by the public. In case of abandonment the title to the middle of the highway itself, ordinarily, reverts to him. Among other rights is that of access to and from his premises, and where he has improved in conformity with an established grade, the damage occasioned by a material change of grade is immediate and often serious. A marked difference between the two rights is found in their origin. In no single particular does the land owner get any property right in the street from the city. No consideration of the city’s power is brought in question in estimating the character of the lot-owner’s right in the street. It inheres in the very ownership of the lot, as air incident to it.

None of these characteristics attach to the company's easement. In no sense is it the owner of land adjoining the highway. A fair construction of the petition makes of it no more than a naked right to place and keep its pipes somewhere in the street. And this, we think, is the extent of the council’s power. An ordinance to grant an exclusive right, or a perpetual right to occupy a particular part of the street, would be an attempt to bind succeeding councils as to their exercise of legislative power, and would, for reasons stated, be ineffectual. The grant by the city must be interpreted in the light of the right and duty of the city to re-grade, whenever in its judgment, the public interest demands, and whatever easement the gas company can receive, it must accept and enjoy in common with equivalent rights, which have been or may be acquired by other public agencies, rights of a like secondary character, and all must give way to the paramount duty of the city to care for the streets and keep them open, in repair, and convenient for the general public. This duty would be seriously interfered with if the city could not change the grade of its streets, save upon the condition that it should make compensation to every gas company, and water company, and telephone company, and electric light company, and street railway company, for inconvenience and expense thereby occasioned. All such agencies must be held to take their grants from the city upon the condition, implied where not expressed, that the city reserves the full, and unconditional power to make any reasonable change of grade, or other improvement, in its streets.

Attention has been called to some authorities which seem to give sanction to the company’s claim in this case. But we are impressed that they do not in this respect express the spirit of our statutes and decisions.

On the other hand, counsel for the city have cited authorities which support the conclusions here reached. See Dillon on Municipal Corporations, hie et ibi; Lewis on Em. Dom., § 107, 109; Goszler v. Georgetown, 6 Wheat., 593; Brenham v. Water Co. 20 Am. & Eng. Corp. Cases, 247; Aqueduct v. Brookline, 121 Mass., 5; In the matter of Deering, 93 N. Y., 361; Water Works v. Kansas City, 28 Fed. Rep. 921; Rockland Water Co. v. Rockland, 83 Me., 267.

We think the petition does not state a cause of action.

Judgment affirmed.  