
    The Hamilton, Glendale & Cincinnati Traction Co. v. Parish.
    
      Consents of lot owners — To construction of street railways — Not property rights subject to law of eminent domain — '-But personal right at disposal of property owner — Municipal laio— Eminent domain — Personal rights.
    
    1. The consents of owners of lots abutting on a street, to the construction and operation of a street railroad on such • street, are not property rights that can be appropriated, under the power of eminent domain.
    2. Such consents are not property rights, but rights in their. nature personal to each owner of an abutting lot.
    3. Such personal rights were bestowed by the general assembly on owners of abutting lots, as a check upon the power of municipal authorities to authorize street railroads to be constructed and operated against the wishes of the owners of lots; on such street.
    4. The owners of abutting lots are free to give or withhold such; consent, upon such terms as to them severally may seem proper, and there is no public policy in this state against giving such consent for a valuable consideration moving from, the street railroad company to such lot owner.
    (Decided November 18, 1902.)
    Error to the Circuit Court of Butler county.
    Said defendant in error, as plaintiff below, filed his= petition in the court of common pleas, against said. plaintiff in error, and after the proper preliminary averments as to the incorporation of said company, his ownership of a lot on Third street, along which said company was about to build its street railroad, under an ordinance passed by the board of control of the city of Hamilton, averred as follows:
    “Plaintiff says that said ordinance is void and never went into operation for the reason that the written consents of the owners of more than one-half of the feet front of the lots and lands abutting on said Third street from High street to Maple avenue, for the construction of said railroad, were never obtained or filed with said board of control, and that therefore said board of control had no jurisdiction to pass said ordinance, and the franchise granted thereby is void.
    “Plaintiff further says that the written consents of the abutting property owners that were procured and filed by said defendant to the construction of said street railroad on said Third street, were procured by purchase for money or other valuable consideration, which inured to the exclusive benefit of the said abutting property owner, and that said written consents so purchased by money or other valuable consideration, were the consents of owners of lots and lands .abutting on said Third street, along Avhich it is proposed to construct said railroad, under said pretended ordinance, and that said OAvners immediately before ¡and at the time they so signed said written consents, were opposed to the construction of said street ■railroad along and over said route and in said street, and that they did not believe that the same so constructed over said route and on said street would be in the interest of themselves as property owners and of the public. That said abutters so signing for a consideration would not have signed said consent but for ¡said consideration so paid, or things furnished them for so consenting; that said considerations were substantial and in most instances large sums of money paid to obtain said consents. That said payments and promises were made by and on behalf of said defendant's company to said property owners, and plaintiff says that without the consents of said property owners, so obtained by purchase and other substantial considerations and promises, the consents of the owners of one-half of the feet front of the lots and lands ■abutting on said Third street along which it is proposed to construct said railroad, could not have been •obtained and presented to said board of control; that the opposition of said abutting property owners so receiving said consideration to the construction of ¡•said street railroad, was conscientious and in good faith.
    “Plaintiff further says, that before said ordinance was passed by said board of control granting said franchise, that members of said board of control who voted in favor of said ordinance, to-wit, Joseph J. Pater, C. E. Mason, Conrad Semler and Joseph. .Strategier, had knowledge of the fact that in order to secure the written consents of a majority of the feet front abutting on said Third street, said defendant had procured the same by purchase or other valuable consideration. Plaintiff therefore says that by reason of the premises that said ordinance is illegal, null and void.”
    Plaintiff below prayed that the construction and operation of said street railroad be perpetually enjoined.
    The traction company answered denying the material allegations of the petition, and after pleading the expenditure of over $85,000.00, justified as follows :
    “Defendant further admits and alleges the fact to-be that the said board of control of the city of Hamilton duly passed an ordinance granting and giving to this defendant the right to build said road along-said route on said streets; and in pursuance of said grant made by the said city of Hamilton, it is now-engaged in constructing its said route, and was so engaged when enjoined herein.
    “Defendant further says that the action of plaintiff is not brought in good faith as an abutting property holder and for the benefit and protection of his said property, but is brought solely in the interest of' rival street railroad companies, known as the Hamilton & Lindenwald Electric Transit Co. and the-Southern Ohio Traction Co., of which said plaintiff is a stockholder and director, and for the -purpose of preventing defendant from constructing its said track, and thereby preventing it from entering into-competition with the said Hamilton & Lindenwald Electric Transit Co. and the Southern Ohio Traction Co., and solely in the interest and at the expense of said ri-val street railroad plaintiff is maintaining this, action, and for no other purpose whatsoever.
    “Defendant further says that the citizens of Hamilton and the public in general are desirous for said road to be constructed; that the same will be of great, public advantage and benefit to the citizens and business men of the city of Hamilton, and that if said plaintiff should prevail in this action the same will be detrimental to the public interest, prevent defendant from constructing said road, and thereby deprive the citizens and people of Hamilton of the advantages and benefits of said street railroad line, and in addition thereto will cause a loss to this defendant of not less than $-by reason of the purchases as aforesaid made, the work done, obligations incurred, and defendant would be required to restore streets to their original condition.
    “Defendant further says it has constructed a line and has the same completed from the village-of Glendale, in Hamilton county, to the north corporation line of the city of Hamilton on East avenue, and that with the construction of the present line now proposed it wall be able to carry passengers direct from Third and High streets, in said city of Hamilton, to Fifth and Walnut, in the city of Cincinnati, without change of cars, and at a greatly reduced rate in fare and in a much shorter time than is now charged or consumed by the other company; and the same will be the only' route by which passengers can travel directly from Third and High streets, in Hamilton, to Fifth and Walnut, in the city of Cincinnati, without transfer or change of cars.”
    The substance of the reply is as follows: “He denies that this action is not brought in good faith. He denies that it is brought solely in the interest of rival street railroad companies known as the Hamilton & Lindenwald Electric Transit Co. and the Southern Ohio Traction Co., and for the purpose of preventing defendant from constructing its track and thereby preventing it from entering into competition with said street railroad companies; but avers that the action is brought in good faith by him as an abutting property holder and for the benefit and protection of his property.
    “He admits that he is one of the stockholders and directors of the Hamilton & Lindenwald Electric Transit Co., and the Southern Ohio Traction Co.”
    
      Upon trial in the circuit court on appeal, that court after finding that said O. Y. Parish is the owner of an improved lot on Third street, and that he commenced and prosecuted the action in good faith as an abutting property owner, found the further facts as follows :
    “The total frontage on Third street from High to Canal street, now called Maple avenue, is 760.50 feet; a majority of the feet front is 381 feet. Of this number property owners representing 232.90 feet voluntarily signed their consent to the construction of the road in Third street; that the consent of 39 feet was signed ‘Alexander Gordon, by J. L. Blair, his agent,’ subject to Alexander Gordon’s approval; and that said Alexander Gordon never, although duly notified, disapproved of said written consent, and is therefore deemed to have approved the same.
    “That the following written consents were procured by purchase for money consideration, to-wit:
    George Herold,...... 30.00 ft. |400 00
    Clement Snider,..... 20.00 ft.
    Caroline Snider,..... 25.00 ft.
    Pauline Schwartz,... 18.50 ft. 50 00
    Margaret Schwartz,. . 75.00 ft. 250 00
    Fred Fries, ......... 52.00 ft. 100 00
    220.50 ft.
    “And that when said written consents were filed with the board of control, to-wit, August 10, 1901, said board of control knew that the same had been procured by purchase.
    “The court also find that at the time of the commencement of this improvement up until August 9 and 10, 1901, when said consents were procured by purchase the said George Herold, Clement Snider, ■Caroline Snider, Pauline- Schwartz, Margaret Schwartz and Fred. Fries had been opposed to the ■construction and operation of said street railroad in and along and upon said Third street.
    “The court finds that at the time said ordinance was passed there was not on file with the city clerk, nor was there presented to the board of control the valid written consents of the owners of a majority of the feet front of the property abutting upon said Third street from High to said Maple avenue, because of said consents so purchased.”
    As its conclusions of law upon the above facts the court found:
    “First — That the plaintiff was entitled as an abutting property owner to maintain this action.
    “Second — The court finds as a conclusion of law that the said written consents procured by purchase ■of the abutting property owners are invalid, null and void and against public policy, and that the same can not be counted to determine the majority of the feet front on said street, and that therefore at the time .said ordinance was passed there was not produced and filed with said board of control the written consents of the owners of the majority of the front feet on said part of said Third street, and that said board of control never acquired jurisdiction, to pass said ■ordinance making said grant.”
    Proper exceptions were preserved throughout.
    The circuit court rendered judgment in favor of the plaintiff below against the traction company perpetually enjoining the construction of said street railroad on said part of Third street, and for costs. Thereupon the traction company came here seeking to reverse the judgment of the circuit court.
    
      
      Messrs. Burch & Johnson; Mr. M. O. Burns and Mr. J. W. Warrington, for plaintiff in error, cited and commented upon the following authorities:
    
      Neare v. Railway Co., 4 Dec., 475; 29 W. L. B., 171; Roberts v. Easton, 19 Ohio St., 86; White v. Railroad Co., 139 N. Y., 28; Military Academy v. Railway Co., 47 Atl. Rep., 892; Street R. R. Co. v. Cumminsville, 14 Ohio St., 523; Railroad Co. v. Smith, 1 O. S. C. D., 816; 41 W. L. B., 212; Railroad Co. v. Williams, 35 Ohio St., 168; Daily v. State, 51 Ohio St., 348; Bingham v. Doane, 9 Ohio, 165; Crawford v. Delaware, 7 Ohio St., 460; Railway Co. v. Lawrence, 38 Ohio St., 41; Schaible v. Railway Co., 6 Circ. Dec., 505; 10 C. C. R., 334; Makemson v. Kauffman, 35 Ohio St., 444; Richardson v. Mellish, 2 Bing., 252; Steamship Co. v. McGregor, A. C., 45; In re Mirams, 1 A. B., 594; Railway Co. v. Cox, 55 Ohio St., 515; Jacobs v. Tobiason, 65 Ia., 245; Maguire v. Smock, 42 Ind., 1; Howard v. First Church, 18 Md., 451; Smith v. Applegate, 3 Zab., 352; State v. City of Elizabeth, 25 N. J. L., 351; Low v. Railroad Co., 46 N. H., 293; Howden v. Simpson, 10 Adolph. & E., 793; Simpson v. Howden, 9 Clark & Fin., 61; Vauxhall Bridge Co. v. Spencer, 2 Mad., 356; Edwards v. Railroad Co., 1 M. & C., 650; Railway Co. v. Hawkes, 5 H. L. Cas., 331.
    
      Messrs. Shepherd & Shaffer; Mr. C. R. Hartkopf; Messrs. Shotts & Millikin and Mr. H. R. Probascoy for defendant in error, cited and commented upon the following authorities:
    
      Roberts v. Easton, 19 Ohio St., 78; State v. Bell, 34 Ohio St., 197; Makemson v. Kauffman, 35 Ohio St., 444; White v. Railway Co., 139 N. Y., 19; Railroad Co. v. Williams, 35 Ohio St., 171; Daily v. State, 51 Ohio St., 348; Bingham v. Doane, 9 Ohio, 165; 
      Crawford v. Delaware, 7 Ohio St., 460; Railroad Co. v. Cumminsville, 14 Ohio St., 523; Railway Co. v. Lawrence, 38 Ohio St., 41; Schaible v. Railway Co., 6 Circ. Dec., 505; 10 C. C. R., 348; Simmons v. Toledo, 4 Circ. Dec., 69; 8 C. C. R., 535; Neare v. Railroad Co., 4 Dec., 475; 29 N. P., 171; Glidden v. Cincinnati, 4 Dec., 423; 30 N. P., 213; Doane v. Railroad Co., 160 Ill., 22; Marshall v. Railroad Co., 57 U. S., 314; Liness v. Hesing, 44 Ill., 113; Burk v. Child, 88 U. S., 21; Oscanyan v. Arms Co., 103 U. S., 261; McGuire v. Smock, 42 Ind., 1; Railroad Co. v. Shea, 67 Ia., 728; State Keene v. Elizabeth, 35 N. J. L., 351; Smith v. Applegate, 23 N. J. L., 352; Military Academy v. Railroad Co., 47 Atl. Rep., 890; State v. Atlantic City, 48 Atl. Rep., 615; Railroad Co. v. Detroit, 12 C. C. A., 365.
   Bubket, C. J.

The contention in the pleadings and finding of facts as to whether Mr. Parish brought -and prosecuted the action in good faith, is of no importance, because if he had a legal right which he sought to protect by an action in a court of justice, the motive which induced him to bring the action cannot be inquired into. To sustain his action, if brought in good faith, and defeat it if brought in bad faith, would be to control his morals by means of a law suit. That cannot be done. Unless restrained by statute, a man may direct his moral conduct as he pleases. In State ex rel. v. Board of Education, 35 Ohio St., 368, the following appears on page 382: “If it is apparent that the relator is legally capable of prosecuting this proceeding, and that he has a clear legal right to the remedy he is seeking, we cannot stop to inquire whether he is moving of his own volition, or at the request of some third party.” To the same effect is Lewis v. White, 16 Ohio St., 444; Frazier v. Brown, 12 Ohio St., 294; and Letts v. Kessler, 54 Ohio St., 73. And it can make no difference whether his right is clear or not, only so that it exists.

The fee of the land occupied by highways outside of municipalities is in the owner of the adjoining lands. Railroad Co. v. Williams, 35 Ohio St., 168; Daily v. State, 51 Ohio St., 348; Phifer v. Cox, 21 Ohio St., 248; and Callen v. Electric Light Co., 66 Ohio St., 166.

But in municipalities the fee of the streets is in the city or village, in trust however for street purposes. Section 2601, Revised Statutes; S. & C., 1083; Street Railway v. Cumminsville, 14 Ohio St., 523; City of Columbus v. Agler, 44 Ohio St., 485; and Callen v. Electric Light Co., 66 Ohio St., 166.

The fee being in the municipality in trust for street purposes, the abutting lot owner, in addition to his easement in the street for passage and repassage in common with the general public, has a special easement in the street appendant and appurtenant to his lot for ingress and egress; and when the street becomes vacated the public thereby surrenders, or more properly speaking, legally abandons the public use thereof for travel, but the private or special use or easement, adheres to the abutting lots, and becomes part and parcel of them as by accretion, so as to preserve the right of ingress and egress to the lots over the land that formerly formed the street or part thereof. The reason that a street when vacated, becomes a part of the abutting lots, is not because the owner of the lot owned the fee of the street, but because it must go there by necessity, to preserve his easement of ingress and egress, which in many cases is a valuable property right, and without- which the lots might he of little value. The street being vacated and abandoned, the public no longer owns it, and it must either revert to the original owner, or adhere to the abutting lots as by accretion. As the original owner is presumed to have received full value for the street when he sold the lots, there is no just reason why he should have the street, when vacated, restored tó him. And as the lot owners and those in the line of title have paid an increased price for lots by reason of the easement in the street, it is only just that when the street becomes vacated,, the easement should be preserved to them by adding the vacated street to the lots, and therefore this doctrine of accretion in such cases has been adopted in this state, and generally elsewhere.

While the abutting lot owner has this right of public travel on the street, and the right of ingress and egress from the street to his lots, the public authorities retain the right to improve the street, and place such means of travel thereon as in their judgment shall best conserve the public welfare. And so long as his easement of ingress and egress is not materially injured, he is without remedy, because he is not wronged, said easement — all the property right he has in the street — not being interfered Avith. If, however, his easement of ingress and egress should be materially injured by the building and operation of the street railroad, then he must be first fully compensated for such injury. This in substance is the holding of this court in Street Railroad v. Cumminsville, 14 Ohio St., 523, and subsequent cases on this subject. His easement of ingress and egress being the only property right he has in the street, the city authorities had the power, under the constitution, to construct and operate a street railroad on and along the street without his consent and ¿gainst his will, unless restrained by statute, provided they caused no material interference with his easement of ingress and egress.

The general assembly at an early day foresaw that the public authorities, in the exercise of the power to grant franchises for street railroads with a liability to make compensation only in cases of interference with the property right of ingress and egress, might act oppressively, or against the wishes of the abutting lot owners, and therefore imposed a further check upon that power, and required that the consent in writing of the owners of a majority of the feet front-on the street should be obtained and produced to the proper officer. This was done, as held by this court in Roberts v. Easton, 19 Ohio St., 86: “To protect owners of property on the streets of cities * * * from the exercise of arbitrary power on the part of the city authorities in permitting the streets to be used for street railroads.”

But this additional check did not have the effect to vest the fee of the street in the abutting lot owner, nor to give him a right to compensation unless his easement of ingress and egress should be injured. It therefore gave him no more property rights than he had before the statute as to such consents was enacted.

Such consent is therefore not a property right adhering to the lot, but is a personal right in the owner of the lot, a power or sword in his hands with which to protect his lot against the arbitrary powers of the city authorities. A majority of consents by the feet, front is a condition precedent to jurisdiction to pass a street railway ordinance, and each abutting lot owner is free to aid in conferring such jurisdiction, and free to withhold such aid. His actions cannot be controlled in that regard by others on the street, nor by courts of justice in their behalf. Such a condition, such consent, in the nature of things cannot be appropriated under the power of eminent domain. The consent must be given or withheld at the option of the lot owner. He cannot be forced to give it, nor forced to withhold it. Section 3439, Revised Statutes, provides for this written consent, and it imposes no conditions or restrictions, but leaves the lot owner free to give or withhold his consent. And section 3440 goes further and provides that: “Nothing herein contained shall affect the rights of property owners to give or withhold their consent.” So that our statutes, while granting this power of consent, and providing for the giving or withholding of the same, impose no conditions or limitations on such power, but expressly provide that the statutes shall not affect the rights of property owners to give or withhold such consent. We cannot approve the Illinois cases on this question, but regard the New York and New Jersey cases on the question as stating the correct rule.

As the general assembly while having the subject before it, imposed no conditions or limitations upon the exercise of this power, can this court amend the statute by construction, and add conditions or limitations not imposed by the legislature? We think not. In some other like statutes the general assembly has imposed conditions and limitations, and if it had regarded them necessary in this statute, it Avould have inserted them into the act, as was done in the Two-Mile Pike act, now Section 4.836, Revised Statutes. It is therefore clear that the general assembly did not regard it Avise or necessary to impose conditions or limitations upon the exercise of the-power of consent in such cases.

But it is urged that outside of the statute and independent of it, the purchase of such consents for value is against public policy, and this seems to be the ground upon which the circuit court based its. judgment; because that court found as a conclusion of law that the “consents procured by purchase are invalid, null and void and against public policy.” As they are not shown to be defective in form or substance, and are not prohibited by statute, there can be no reason for holding them “invalid, null and void,” unless they are against public policy. We will therefore address ourselves to the matter of public policy, as the case was argued here upon that ground.

In Probasco v. Raine, 50 Ohio St.. 378, this Court held: “If a statute is constitutional, it is valid, and cannot be set aside by a court, as being against public policy or natural right. There can be no public policy or right in conflict with a constitutional statute.”

In the case at bar the effort is not to invoke public policy to override a valid statute, as was attempted in the Probasco case, but rather to bring forward a public policy to supply a rule of decision as to a statutory matter as to which the general assembly has. been purposely silent.

In Vidal v. Girard, 2 How., 127, a case from Pennsylvania, the Supreme Court of the United States, laid down the rule as to public policy in such cases as follows: “Nor are we at liberty to look at general considerations of the supposed public interests and policy of Pennsylvania upon this subject, beyond what its constitution and laws and judicial decisions make known to us. The question, what is the public policy of a state, and what is contrary to it, if inquired into beyond these limits, will he found to be one of great vagueness and uncertainty, and to invoke discussions which scarcely come within the range of judicial duty and functions, and upon which men may and will complexionally differ. * * * We disclaim any right to enter upon such examinations, beyond what the state constitutions, laws, and decisions necessarily bring before us.”

No decision of this Court is cited, and we know of' none, recognizing or establishing the public policy contended for in this case, and we think it safe to hold that there is none. Under a system like ours, where the fundamental rights of the people are defined and guarded by a written constitution, where all crimes; are statutory, and our civil rights and procedure also? regulated by statutes, there is but little room for public policy, outside of our statutes and constitution. In this regard our system is very different from that of England where the doctrine of public policy in earlier days had a wide scope, and from which it was; brought to this country, and has often been indis- ■ criminately applied by courts here without observing; the distinction between the systems of the two countries.

The Supreme Court of the United States in the.Girard Will Case, supra, states the rule as to public policy correctly, and tested by that rule we find nothing in our constitution, statutes, or decisions, sustain!ing the public policy contended for.

It is urged that to purchase consents for value is a species of bribery, and an expression to that effect in Makemson v. Kauffman, 35 Ohio St., 444, is cited and. relied upon. But upon turning to our bribery statute, we do not find it to cover the case, and as we have . no common law crimes, but all defined by statute, we must conclude that such purchase of consents is not a species of bribery, because under our system what is not prohibited is tolerated. Again title one, chapter 8 of our penal code, from section 6929 to 7017 is devoted to “Offenses Against Public Policy,” and it is only fair to presume that if the general assembly had intended to prohibit the purchase of such consents, it would have done so in this chapter 8, or in the street railroad sections.

It is also urged that the abutting lot owners as to these consents, act in a public capacity, or perform a public function, and that they must therefore act from pure motives for the benefit of the public, or at least for the good of all on the street, and that their action for or against the street railroad cannot be influenced by considerations of gain, and some cases are cited supporting this view. But here again we are asked to amend the statutes by construction, and to create a public policy which is not deducible from our constitution and statutes. This Court cannot control the morals of litigants unless so provided by statute. And when the evil results flowing from a given course of conduct, have not been of a grave . enough character to attract the attention of the gen ■.eral assembly, this Court cannot, by construction, •¿provide a new remedy under the plea of public policy.

The cases cited by counsel on both sides have been fully considered, but their review has not been found necessary in this opinion. The reporter will cite them in his report of the case.

With this view as to such written consents, the questions growing out of section 3439a, 95 Ohio Laws, 475, are immaterial, and are not here decided.

The judgment of the circuit court will he reversed, and judgment entered upon the finding of facts in favor of the plaintiff in error.

Judgment reversed and judgment for plaintiff in error.

Spear, Davis, Shauck, PRiCE*and Crew, JJ., concur.  