
    The Valley Railway Company v. Bohm et al.
    1. Section 16 of the general Incorporation Act (1 S. & C. 279), authorizes a railroad corporation, when necessary in the construction of its road to cross any stream of water, to divert the same permanently from its “ present location or bed.”
    ;2. Where the diversion of a stream of water from its existing bod or course becomes necessary in tho location and construction of a railroad, the power to appropriate land on or through which to construct a new channel for such stream, is conferred by section 10 of said act.
    ■8. Where lands lying outside of the railway are sought to be appropriated for the purpose of obtaining therefrom materials for the construction of such railway, as authorized by section 10 of said act, the petition should disclose the use for which such lands are sought to be appropriated.
    Error to the Court of Common Pleas of Cuyahoga •county.
    The plaintiff, a corporation created under the laws of the ■state and authorized to construct and operate a-railroad, instituted proceedings in the probate court of said county for the appropriation of certain real estate to the use of its road. The petition alleges that said railroad “ has been •permanently located .across the following parcel of land, ■situate in the township of Newburg, in said county of ■Cuyahoga, and being part of lot No. 272 (two hundred and •.seventy-two), which land is owned in fee simple by Bern-hard Bohm, a resident of said county of Cuyahoga; that the said parcel of laud herein appropriated and hereinafter ■.specifically described is bounded on the westerly, southwesterly and southerly sides thereof by the Cuyahoga river bed, low-water mark; that as said railway is located, and where it is necessary to construct it, it crosses said stream -twice within the space of-rods, and that such crossings can only be made by means of expensive bridges, which would if permanently built cost necessarily not less -than thirty-eightthousand dollars; that there is no possible method of avoiding the building of such bridges except by running around the curve of said stream on the westerly bank thereof, thus increasing the length of said railway not less than-rods, and thus making a sharp curvé in said railway greatly to its detriment, or by diverting the channel of said stream as hereinafter proposed.
    “ The said railway company attaches hereto as a part of its petition of appropriation a diagram and survey of the land herein sought to be appropriated, and marks the same, ‘ Exhibit D.’
    “ The said railway of petitioner so located as aforesaid across the said parcel of land is indicated by red lines, and the right of way therefor of the width of eighty feet has been granted to the said railway company by the said Bohm.
    “ Petitioner represents that in order to construct said railway on the route on which it is located it is necessary and indispensable to divei’t the stream from its present channel, and to cut a new channel for the same directly across the said parcel of land owned by the said Bernhard Bohm, and to use for such new channel a strip of land of the width of one hundred feet, in the form and at the place indicated and marked ‘New Channel’ on said ‘Exhibit D,’ and that the laud owned by said Bohm, southwesterly of said railway, extending to the bed of the stream in the present channel will thus be cut off from the main tract with which it is connected (which is a tract in all of 40J acres) and will be so impaired in value that petitioner proposes to appropriate the same, together with the land to be occupied for the new channel, and that the whole of the same is in fact necessary to said railway company in making and maintaining the proposed channel and in protecting its said railway.”
    The petition described the land sought to be appropriated, which included all in the bend of the river as well as that desired for a new channel, and concluded as follows:
    “ Petitioner represents that it has attempted to agree with the said owner of said land upon the compensation to be paid therefor, and for the diversion of said stream as aforesaid, but is unable to agree upon the same, or to agree upon any land to be used for diverting said stream.
    „ “ The said railroad company prays that the said property and the right to divert the said stream as aforesaid may be appropriated for the said purposes of its said railway, and that process be issued against the said Rohm, and such proceedings to condemn the same maybe had as are authorized by law; and it hereby proposes, when said channel shall be changed, to, without unnecessary delay, place the said stream in such condition as not to impair its former usefulness.”
    The following diagram “Exhibit D” shows the relative position of the railroad, the river bed, and the proposed new channel:
    
      
    
    The proceedings in the probate court resulted in an order for the condemnation of the property and the assessment of compensation to the owner. On error the court of common pleas reversed the judgment of the probate court, and dismissed the petition.
    
      
      James Mason and W. J. Boardman for plaintiff in error:
    As to the authority to appropriate laud for the purpose ■of constructing thereon a channel into which to divert a ■stream of water crossed by a railroad in its construction.
    The powers conferred upon a corporation are such as are expressed and such as are necessary to carry into effect the ■express powers. Straus v. Insurance Co., 5 Ohio St. 59; Pierce on R. R. L. 13 ; Babcock v. Railroad Corp., 9 Met. 553.
    We claim that by the legislation of our own state, authority is, both expressly and by implication, conferred upon railroad corporations to appropriate land for the purpose •stated. § 10 of the statute, 1 S. & C. 277; § 16, S. & C. 279.
    The question of power to divert a stream and appropriate land for that purpose is determined by the fact whether such diversion is necessary or not in the construction of the railroad. Rodgers v. Bradshaw, 20 Johns. 735 ; Babcock v. Railroad, 9 Met. 553; Brainard v. Clapp, 10 Cush, 6; State v. Commissioners, 3 Zabr. 510; 11 Humphreys, 348; 1 Redf. on Railways (5th ed.), 252, 253, 341; Wright v. Scott, 34 Eng. L. & E. 1; Railroad v. Kip, 46 N. Y. 546; Giesy v. Railroad, 4 Ohio St. 308 ; Railroad v. Daniels, 16 Ohio St. 390 ; Waterbury v. Railroad, 27 Conn. 146; Cott v. Railroad, 36 N. Y. 214 ; Railroad v. Magruder, 34 Md. 80 ; Green v. Railroad, 58 N. Y. 152.
    
      R. P. Ranney and J. E. lngersoll, for defendants in error:
    The plaintiff does not allege that it needs any of the land in question for its track; nor for depot grounds; nor for any of those purposes for which the statute has especially provided that it may appropriate lands. It plainly proposes to take part of the track for the purpose of laying out upon it a river bed for a navigable river, a highway, .and then says that “the land so cut off from the main track of defendant’s land will be so impaired in value that it proposes to appropriate the same.” In other words, to .appropriate it because it is of so little value to the owner !
    
    The main question in this case is upon the right of the plaintiff to appropriate this land.
    
      It is fairly the question whether power has been conferred upon railroads to use the right of eminent domain in such a case as this presents. And the case is such as they have set out in their petition ; it can not be made any more favorable to the railroad than the petition presents it.
    The act of May 1, 1852, conferring power on corporations (found in Swan & Or., 277, § 10), specifies the purposes for which a railroad may appropriate.lands, and this land is not asked for, for any of the purposes there specified. In fact, the plaintiff’s counsel do not claim, as we understand them, that their case comes within the tenth section or any of its provisions, but they are driven to the position that the sixteenth section (p. 279) confers the right.
    The attempt to make the sixteenth section provide for and confer authority to exercise a particular power additional to what is conferred in section ten, calls for an interpretation which is not favored, if, in fact, it be ever allowed. By section ten the legislature undertook to define-the case in which the power iu question may be exercised ; and when the sixteenth section is reached, something else is provided for, to-wit, the emergency of crossing a road or stream of water; and power is given for what ?
    ■ The plaintiffs say, to do an act of the character which, the tenth section defines, although it is not embraced in that tenth section. W e allege that the power given is not designed for an appropriation of land, but only for a temporary diversion of the road or stream.
    This section says you may divert the stream or road, but you shall, without unnecessary delay, “ place it in such condition as not to impair its former usefulness.”
    A railroad company has no power to appropriate lands for the location of a highway. 19 Ohio St. 808 ; 11 "Wend. 140.
    The stream in question is a navigable stream and a public highway.
   Boynton, J.

Section 16 of the general incorporation act (1 S. & C. 279), provides, that “ 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 confers power to divert the road or stream* coupled with the duty imposed to place the same, after diversion, in such condition as not to impair its previous usefulness. The requirement is not to restore to its former place or condition, but to such condition as not to affect, materially, its utility. It is to be left in such condition, how much soever it may be diverted from its former course, that the right .to its public or private enjoyment, where such right exists, shall not be materially disturbed or interfered with. Little Miami R. R. Co. v. The Commissioners of Greene Co., 31 Ohio St. 338. Subject to the performance of this condition, the power or right to divert the same is coextensive with the public necessity which calls for its exercise. The meaning assigned to the language of this section, by counsel for the defendant, confines the right to divert the stream or highway, to a use merely temporary in its character. This we think far too restricted; so much so, that, if adopted, it, to a greater or less extent, would result in defeating the obvious design of the statute. The diversion may be temporary or permanent, as the public needs or necessities require. If intended to be permanent, and a necessity exists therefor, power to appropriate land for a new channel or bed required to enable the company to comply with the duty to place the stream in such condition as not to impair its usefulness, is found in section 10 of the same act. The language of that section is as follows : “ Such corporation is authorized to enter upon any land for the purpose of examining and surveying its railroad line, and may appropriate so much, thereof as may be deemed necessary for its railroad, including necessary side-: tracks, depots and workshops and water-stations, materials for construction, except timber, a right of way over adjacent lands, sufficient to enable such company to construct and repair its road, and a right to conduct water, by aqueducts, and the right of making proper drains.”

Here is clear and express authority to enter upon the land’ of another, and appropriate so much thereof as may be deemed necessary for the railroad; and, if deemed necessary, in the construction of the road, to occupy an existing river bed, or to divert the course of the stream, and this can only be done by supplying a new channel for the river or stream, the appropriation of land upon which to construct the new channel through which to carry the water, is, to all intents and purposes, and within the meaning of this provision' of the statute, an appropriation of the land for the railroad.

In New York; an act of the legislature relating to canals authorized the canal commissioners to enter upon and occupy any lands which might be necessary for the canal improvements. It became necessary, in making such improvements, to occupy a part of a turnpike road; and it was held, that the canal commissioners might appropriate land for a new road, to take the place of that part of the turnpike so taken for canal'purposes. Rogers v. Bradshaw, 20 John, 735.

In delivering the opinion in that case, the Chancellor said: “ If the turnpike road was unavoidably encroached on by the canal, and another road was indispensable at that place, before the canal was commenced, and the land was necessary for the road, it would seem to follow as a clear logical deduction, that the land taken was necessary for the prosecution of the improvements intended by the act.” In People ex rel. v. Railroad Co., 58 N. Y. 152, the New York Court of Appeals, in commenting on a statute requiring the company, laying its road across or upon- a public highway, to restore the same to such condition as not unnecessarily to impair its usefulness, said : “ The duty of restoring imposed, carries with it the power to restore, and in the exercise of that power, all other needful auxiliary powers given by the statute may also be exercised; and of these is the power to-take lands compulsorily, when necessary for the purpose of the incorporation of the company. So that the whole scope of the statute shows the legislative intent, in a case of necessity, land may be compulsorily acquired for the purpose of extending the original limits of a highway, or of entirely removing it to a neighboring place.” This case goes much further than is necessary in the present case, to sustain the power to condemn land for the new channel.

In view of the two sections above quoted, we think the company is fully authorized, where its road is located across a stream of' water, to appropriate land for a new channel into which to turn the stream, when necessary in the construction of its road. To the extent that riparian rights are appropriated, compensation therefor should be made. This conclusion, however, does not result in the reversal of the judgment of the court below. The company had the right to appropriate only what the public necessity required; the necessity to be determined according to the principles settled in Giesy v. The C. W. & Z. R. R. Co., 4 Ohio St. 308. The petition alleges that the right of way for the railroad, of the width of eighty feet, has been granted to the eompanj7, by Bohm, the owner. Counsel for the plaintiff stated in argument, that at the time the petition was drawn, it was supposed that such right of way had been granted, but that, subsequently, and prior to the trial in the probate court, it was ascertained that such was not the fact, and that, consequently, damages were awarded to the defendant for all the land. If this is so, the petition should have been amended. We must look to the record for the facts, and treat the uneontroverted averments of the petition as true, so far at least as to estop the plaintiff from denying them. Hence, the roadway having been, as we must assume, acquired by purchase, the petition only shows a necessity for the appropriation of land for a new channel for the river, and this it particularly describes. But the company also seék to condemn the land lying in the bend of the river, entirely'outside of the roadway, and remote from the place of the proposed new channel, and state the necessity therefor, as follows :

“That the land owned by said Bohm, southwesterly of said railway, extending to the bed of the stream in the present channel, will thus be cut off from the main tract with which it is connected (which is a tract in all of 40J acres), and will be so impaired in value that petitioner proposes to appropriate the same, together with the land to be occupied for the new channel, and that the whole of the same is, in fact, necessary to said railway company in making and maintaining the proposed channel, and in protecting its said railway.”

The 10th section of the act authorizing the creation of railroad corporations above recited defines the uses for which the land of another may be condemned. So much thereof may be taken as may be deemed necessary for the railroad, including necessary side-tracks, depots, work-shops and water-stations, and materials for construction, except timber, a right of way over adjoining land to enable the company to construct and repair its road, and the right to-conduct water by aqueducts and drains. The land appropriated must be capable of being made subservient to some of the uses here named, and be so intended, or it can not be taken at all. It is not pretended that the land lying in the river bend is necessary or desired for any of the purposes here mentioned, except to furnish material for construction. And if appropriated for such purpose a compliance with the provisions of section 2 of the act of April 28, 1872 (69 Ohio L. 88), prescribing the mode of procedure to effect the appropriation, would seem to require such purpose to be definitely stated. That section requires the petition to contain, among other things, a specific description of each parcel of property, and rights, sought to be appropriated, and the use-to which the same are to be'applied, together with the necessity for such appropriation. Both the necessity for, and the use to which the land lying in the river bend was to be applied, were left, by the petition, in the present case, too-much in doubt. It did not apprise the owner with sufficient certainty whether the fee of the land outside of the roadway was sought, or a lesser interest or estate. Ordinarily,, where land lying without the roadway is appropriated for the sole purpose of supplying materials for construction,, the title to the same, with the right to its possession and enjoyment, subject to the paramount right of the company to enter and remove the material, remains in the original owner.

Hence, to enable the court to determine the necessity of the appropriation, and to secure to the land-owner the just and fair value of the interest taken, when lands are condemned for construction purposes merely, the petition should be so specific in its description of the use intended as to leave no doubt as to the extent of the interest sought to be acquired.

Judgment affirmed.  