
    (Butler Co., O., Common Pleas.)
    AUGUST DIETZ v. THE C. & M. V. TRACTION CO.
    
      Electric street railroad on county roads— Law for, constitutional — Grade of Li. R. in accordance with grade of road—
    The act of May 17, 1894, 91 O. L., 285, to authorize and regulate Electric Street Railroads, authorizing the construction of electric street railroads on the highways outside of municipal corporations, for the transportation of passengers, packages, express matter, U. S. mail, baggage and freight, is constitutional.
    The County Commissioners have authority to grant the right to construct such railroads on county roads.
    Such a railroad, where the top of the rails is on a level with the grade of the road except in a few trifling instances, there being a substantial accord between the grades of the railroad and of the road, and not operated by steam, is a street railroad.
    An owner of land abutting on such road has the right to institute a suit individually, fur injunction against such Railroad Co. on the ground that his property will be injured thereby, but an allegation chat the property of other land owners will be similarly injured, is improper.
    Such owner can not bring such a suit on the ground that the railroad will be a public nuisance. A suit on such a ground can only be maintained by public officers in the name or by authority of the state.
   NEILAN, J.

This is an action for injunction to.-prevent the Miami Valley Traction Co. from building its railroad on and along certain public roads' of the county, as authorized by a grant for that purpose made by the board of commissioners, on November 14, 1896.

This grant was made by authority of an act of the general assembly of this stgte, passed May 17, 1894, Ohio Laws, vol. 91, p. 285, entitled ‘An Act to authorize and regulate Electric Railroads.’

By the first section of that act it is provided: — ‘That companies incorporated under sec. 3236, of the Rev. Stats, of Ohio, for such purpose may construct, maintain and operate electric street railroads, or street railroads using other than animal power as ' a motive power, for the transportation of passengers, packages, express matter, United States mail, baggage and freight upon the highways in this state outside of municipalities.’

Sec. 3236, referred to in this act, is the general incorporation law of this state.

By authority of this section, and of the law of 1894, defendant, The Miami Valley Traction Co., is incorporated and is building a railroad from . the city of Hamilton, northwardly, through Butler county to the Warren county line, on and along certain highways of this county, among others on what is known as the Trenton road, from a point where that road crosses the C. H. & D. railroad track to the south corporation line of the village of Trenton.

Plaintiff owns an undivided half interest in a tract of one and a half acres of unimproved land abutting on said described portion of the,Trenton road, near where the same crosses the C. H. & D. railroad.

By the provisions of sec. 2 of the law of 1894, the written consent of a majority, measured by the front foot, of, the property holders abutting upon the highway proposed to be occupied, must be first obtained, before the railroad can be built or a right granted therefor. Plaintiff did not consent.

On April 22, the plaintiff brought his action for injunction; a temporary restraining order was allowed by this court to continue until the further order of the court, on plaintiff’s giving bond to defendants in the sum of $2500.

Plaintiff alleges in his petition, in substance, that the legislature had not power to pass the law of 1894, and, hence, it is unconstitutional and void; that the proposed railroad is not a street railroad, but is, in fact, a commercial railroad to be operated by steam; that the commissioners have no power or authority to grant the right to occupy the highways for any such purpose, even if the full and proper consents of abutting property owners were given, and he alleges that such consents had not been obtained by the railroad company, and were not produced to the commissioners at or before they made the grant, even if they had the power to make the same. He alleges that the building and operation of said railroad will be destructive of said highways for purposes of travel thereon by vehicles drawn by animals, particularly if operated by steam, and will be entirely foreign to the original use and purpose for which said Trenton ' road was established ; that its construction and operation will cause great damages to the citizens and tax-payers of Butler county who desire to use the same, especially those owning property abutting on said Trenton road, and that said railroad will be a public nuisance.

Plaintiff prays for an injunction; that the railroad company be forever enjoined from doing any act authorized by' said resolution and grant by the commissioners, of November 14, 1896; that it be required to remove its rails, ties, polls and all other property from said highway, and restore the same to the condition it was in before said railroad was constructed therein.

On June 9, defendant, the Miami Valley Traction Co., filed its answer and a motion to vacate the-temporary restraining order previously granted. ■ •

■ It admits its incorporation for the purpose stated in plaintiff’s petition; its-application to, and grant by, the county commissioners, substantially as alleged in the petition; alleges that it has expended in the construction of its road and appliances about five hundred thousand dollars, with the full knowledge of plaintiff, and without objection from him; says that the plaintiff was induced to bring this suit by a rival corporation, and that the suit is not brought in good, faith, nor by the real party in interest.

Many other similar allegations are contained in its answer which the court does not deem material, and will not be further noticed.

It avers that on May 1, 1897, it procured from the board of commissioners of Butler county, another additional grant for the right of way for its railroad on and among certain higwhays of Butler county, including that portion of said Trenton road, upon which plaintiff’s real estate abuts, whereby defendant is permitted to use electricity or other motive power to operate its cars, except steam, and by which the former grant it revoked for so much of said Trenton road as extends from the village of Overpeck’s to Busenbark’s station on said road.

It denies substantially, each and every other allegation in the petition, and prays that the restraining order be vacated, the petition dismissed, that it have costs, and for all other relief.

Plaintiff filed, on June 23, an “amendment and supplement to petition,” in which he alleges that the Act of 1894, is in violation of sec. 26, art. 2, of the constitution of the state of Ohio; that all the matters stated in the grant of May 1, are subject to the same objections stated in the petition to the original grant, and all acts under it are void, and praying as in his original petition.

By consent of parties the case was tried on the merits.

Defendant admitted that on November 14, 1896, when it got its first franchise from the county commissioners, it did not have the requisite consents of property owners.

Plaintiff admitted that on May 1, 1897, when'the company got the second and amended franchise, it had, and produced to the commissioners, the requisite written consents.

Evidence was produced by both parties at the trial, but there is little, if any, substantial dispute as to the facts, the questions involved turning mainly on the constitution and construction of statutes. . . ■ •

. ■ Six hours were devoted by counsel to arguments. Every possible phase of the questions involved was ably and learnedly presented; numerous authorities from other states were cited, most of which the court finds, after laborious and careful examination, do not apply, or rest upon statutes of the respective local jurisdictions.

No authority of our own state directly, in point, has been presented by counsel and, after diligent search, none could be-found by the court.

It appears to be the first, time the law of 1894 has ever been questioned. It is, therefore, a case of first impressions, and must be decided upon principle, without the aid of previous adjudications.

■ Many questions were argued at great length, which the court deems of little or no importance, and which will now be disposed of in few words.

Eirst-^Tlie plaintiff being the undisputed owner of this real estate, had a legal right to bring this suit, regardless of motive.

Second — He has no right to bring this suit for any person but himself, to protect his own individual rights. Hence, all that portion of his petition in which he avers that the lands of others, abutting upon the highway along which this railroad is being built, will be injured thereby, can not be considered. A majority of those land owners has consented, and still consents, to the building of this railroad.

Neither has he a right to maintain this suit upon the ground that the railroad is a public nuisance.

Such a suit can only be maintained by public officers in the name, or by authority, of the state.

Third — The discretion of the board of commissioners, assuming for the present that they have the power to make this grant, in the absence of fraud or bad faith, can not be judicially inquired into or revised.

It is possible, nay more, it is probable, that if this court were making this grant, it would have been much more exacting in the requirements, and conditions of the grant, and in the security required of the company for the protection of the public. But a mere difference of opinion on these matters between the court and the commissioners, in whom are vested by law the power to make this grant (if-tliey are so vested which will be considered later,) does not.justify the court’s interference on that ground.

Fourth — The court is clearly of the opinion that the law of 1894, is not in violation of see. 26. art. 2, of the constitution of Ohio.

The only reason.assigned by plaintiff’s counsel is, that “it allows commercial railroads operated by electricity or other motive power to occupy longitudinally the public highways of the state; whereas other commercial railroads using similar power are only allowed to occupy a part of the public highway.” ,

The court is unable to recognize this distinction.

The statute is very broad and general in its provisions.. It applies to .every county and to every public highway in the state, and grants the use of these highways to all without distinction.

The fact that the act calls them elec-' trie street railways is not material, for it authorizes the use of any motive power other than animal power. The term “street railroad” is doubtless used for want of a better, and because it is one commonly understood.

This brings u's to the consideration of the two principal questions in this case, namely, lias the legislature the power o pass this law. And, if so, is the board of commissioners of this county, the public authority in charge of or controlling this'highway, vested with the power to consent to its use.

The term “The King’s Highway, ” used in England, tersely expresses this principle.

A public higwhay is a public way for the passage of persons and property.

“Boads and highways are established to subserve the future needs of the public as well as the present. ’ ’ — Railroad v. Commissioners, 31 Ohio St., 338-347.

The Trenton road is one of the oldest roads in Butler county. It is nearly as old as the state. Street or steam railroads, telegraph or telephone lines, and the almost innumerable uses of modern life to which steam and electricity are now applied, were unknown when this road was established.

To say, as is claimed by plaintiff’s counsel, that it can only be used now for the methods of travel and transportation then in use, is to exclude and ignore all the discoveries, improvements and inventions of the last hundred years.

The laws of this state permit the use of all its public highways for telegraph and telephone lines and poles, which do not come within “the primary and dominant purpose” for which they were established. — Railway Co. v. Telegraph Association, 48 Ohio St., 390-426.

Street railroads operated by horses have uniformly been held not to impose an additional servitude upon the fee; and the adoption of new motive power, —electricity, cable or compressed air, is considered the same.

The three principal reasons assigned by plaintiff’s counsel for their claim that the proposed road is a commercial road, so called, and not a street railroad, are that it does not run at grade with the highway — that its occupation of so much of the road built upon is exclusive of the general public and that it proposes to carry freight, express matter and-^ United States mail, as well as passengers.

The evidence shows that in the construction of this railroad some cutting and some fills have been made. But a personal examination by the court shows that the top of the rail is on a level with the grade of the road, except in a few trifling instances, so that the court finds that there is a substantial accord between the grade of the railroad and the highway, and in this respect it is clearly a street railroad as that term is understood.

The railroad is built on the outside limit of the highway farthest from the gravel and traveled portion.

By the terms of the grant made by the commissioners it is provided that, it shall be built at least fifteen feet from the center of the highway wherever practicable, and the poles shall be set outside of the railroad farthest from the center of the higwhay.

Since the. temporary injunction was allowed no work lias been done on that portion of the road from the south corporation line, of the village of Trenton to the. point where the public highway crosses the C. H. & D. railroad track.

En its present unfinished condition, while its cars could possibly be run over it, the public, could not drive over it. But when completed as contemplated, and as shown by the finished portions, the entire road lied can be used as fully as ever it was.

The grant of franchises for street railroadsjhas heretofore been confined to the carrying of persons and possibly small packages in the passengers’ personal possession. This naturally followed from the fact that they were confined to cities and large towns and were operated by animal power.

Within the last ten years a revolution in rapid transit has taken place in the world. Animal power on street railroads has been forever abandoned. New appliances must be used, new principles prevail.

The right to travel over the highways in vehicles drawn by animals is not a vested right to the exclusion of other modes of travel by persons and transportation of property. — Bridge Proprietors v. Hoboken Co., 1st Wallace, U. H. 116-155, and Railway Co. v. Telegraph Association, 48 Ohio St., 390-426.

The right to the road by the bicycle and to transport property by the traction steam engine are as clearly recognized and protected as the right of the pedestrian or a yoke of oxen.

In the above cited ease, of Railway Co. v. Telegraph Association, the court say:

“The main purpose of streets or highways being to facilitate travel and transportation, new and improved agencies for effecting that purpose must • be presumed to have been in contemplation, in addition to those in existence when they were established.” Further: “Those improved agencies” were “devised for the convenience and advantage of the community in general. ’ ’

In Street Railway v. Cumminsville, 14 Ohio St., 523-545, the court say: “The use of a highway for purposes of a street railroad, involves the application of new appliances and modes of travel, rather than of any new principle.”

Applying these principles to the case at bar, the court is of the opinion that the construction and operation of this street railroad for the transportation of persons and property, do not impose any additional burden on the owner of the fee, and he is not entitled to compensation, except where some special private right is destroyed or impaired.

Here is a rapid mode of conveyance through the country, connecting cities, towns and villages. Its vehicles will stop at any point along its route to take on or let off passengers or property.

To say that it is constitutional for a farmer or his wife or daughter to ride to the nearest market town, but it is unconstitutional for him to take a quarter of beef, or his wife to take a basket of eggs or a roll of butter, to market, or if, instead of going themselves, they send those articles on this railroad, is, it seems to the court, an absurdity.

It does seem to the court that if a farmer, instead of hitching his team to a load of corn or wheat .hitch an electric motor car to it; or, if instead of that, he load his corn or wheat into an electric car, that such use of the public highway is not only not unconstitutional, or in violation of the public’s right to that highway, but is the very purpose for which the highway was established, namely, “to facilitate travel and transportation.” 48 Ohio St., 426.

rt follows therefore, from the foregoing that the legislature, having the power to regulate the use of the public highways, did not exceed its powers in enacting the law of 1894.

The only remaining question is, is the board of county commissioners the “public authority in charge of or controlling this highway,” as required by sec. 2, of the act of 1894.

Tiiis question the court answers in the affirmative.

The board of commissioners is the representative of the sovereignty of the state in the establishment and maintenance of all state, and county roads. No such road can be established, .altered or vacated without its consent. It, only, is authorized to sue for and collect damages to such roads in every case which the court has examined, in which the right, to use a public highway for street railway purposes is referred to, outside of municipalities, the right is always spoken of as having been granted by the board of commissioners. " In no case examined by the court is the point directly decided. All references" to the subject are purely incidental, and in a manner seeming to imply that it is undisputed.

Apart, however, from all this, the statute expressly provides, that “the right to construct or extend such railway within or beyond the limits of a municipal corporation can be granted only by the. council thereof, and the right to construct such railway within or beyond the limits of an unincorporated village can be granted only by the county commissioners. ’ ’

The authority conferred on township trustees by secs. 4889 and 4891, relied upon by plaintiff’s counsel, has reference solely to the repair of the roads specified, and those sections confer no power or authority for any other purpose. This construction gives full effect to sec. 3438, 4889 and 4891.

Any other interpretation would violate one of the canons of the construction of statutes, namely, that effect must be given, if possible, to every section, sentence, line and word of a statute.

The ' temporary injunction heretofore allowed is vacated and dissolved, and the petition is dismissed.

.Defendant not having the necessary written consents on November 14, 1896, plaintiff brought this suit rightfully.

' Defendant is ordered to pay costs.  