Page images
PDF
EPUB

Cincinnati v. Traction Co.

that any part should be so chargeable to either of said companies insists that the amount sought to be recovered in this case is excessive and above the amount properly chargeable against them.

The case was tried to a jury in the court of common pleas, and resulted in a judgment against the Cincinnati Trac. Co. in the sum of $61,220.09, with interest at six per cent. from April 5, 1915; which judgment was declared to be a lien on all the property, real and personal, of the defendant the Cincinnati St. Ry.

The Cincinnati St. Ry. took an appeal from said judg ment; and error proceedings were also prosecuted by both companies, to secure a reversal of said judgment. The cause was heard in this court on the appeal of the Cincinnati St. Ry.

Numerous questions were raised in the oral arguments and briefs of both parties. The main questions were all considered and disposed of in the case of Northern Ohio Trac. & L. Co. v. Akron, 36 O. C. C. 644 (23 N. S. 497), where Secs. 8892, $893 and 8894 G. C. were held to be constitutional. This decision was affirmed by the Supreme Court in a journal entry found in Northern O. Trac. & L. Co. v. Akron, 91 Ohio St. 382. In that case it was held that the amount fixed by an ordinance of a city, as the proper amount to be paid by a street railway existing in a street where a grade has been eliminated, was a proper basis upon which to institute an action in court, but that the recovery to be had by the city against said street railway for such share of expense should be for such amount as the jury should determine to be a reasonable portion of the cost of the improvement. And in that case the amount fixed by the jury in its verdict, for which judgment was rendered and upheld by the Supreme Court, was less than the amount claimed by the city and fixed by its ordinance.

The proceedings in this case have been had along the same lines as those in the Akron case, the only difference being that in the instant case two companies are interested in the street railway, one as lessor and the other as lessee, the lessee being bound by the terms of its lease to pay all obligations arising similar to the claim here under consideration; and the lessor company being interested only to the extent of the lien upon

Hamilton County Appeals.

its property in the event of the failure of the lessee company to pay any judgment obtained for such expense.

The power authorized to be exercised by a municipality in the elimination of a street grade crossing over a steam railroad, under the sections above referred to, is an exercise of the police power, which is a power continuing in its nature and not in any way limited by the extent of the grant or franchise. Columbus Gas Light & Coke Co. v. Columbus. 50 Ohio St. 65 [36 N. E. 292; 19 L. R. A. 510; 40 Am. St. 648]; Wabash Ry. v. Defiance, 52 Ohio St. 262 [40 N. E. 89].

In Missouri Pacific Ry. v. Omaha, 235 U. S. 121, it was held by the Supreme Court:

"1. A railway company may be required by the state, or by a municipality acting under the authority of the state, to construct overhead crossings or viaducts over its tracks at its own expense; the consequent expense is damnum absque injuria or compensated by the public benefit in which the company shares and is not a taking of property without due process of law.

"2. In the exercise of the police power the means to be employed to promote the public safety are primarily in the judgment of the Legislature, and the courts will not interfere with duly enacted legislation which has a substantial relation to the purpose to be accomplished, and does not arbitrarily interfere with private rights."

And in this case the court in its opinion at page 129 said, in regard to the matter of charging part of the expense to the street railway occupying such street:

"It may be that it would be more fair and equitable to require the street railway to share in the expense of the viaduct, and if the municipality had been authorized so to do by competent authority, it would have been a constitutional exercise of the police power to have such division of expenses.'

[ocr errors]

And in the case of Chicago & A. Ry. v. Transbarger, 238 U. S. 67, the court upheld a statute requiring the owners of a railroad to provide means for passing water under their railway embankment long after it had been constructed, as a matter of police regulation.

Nor was it necessary in arranging for this improvement

Cincinnati v. Traction Co.

that the street railway company or the traction company should be notified of the proceedings or that either should become a party to the contract between the city and the steam railroad company.

In Chicago, B. & Q. Ry. v. Nebraska, 170 U. S. 57, the court says, page 76:

"In State v. Railway, 33 Kan. 176, the power of the city of Atchison to compel the respondent to construct viaducts was sustained under legislation similar to that herein involved and, referring to the subject of notice, the court, per Judge Valentine, said: 'We do not think it is necessary that the city should have given the railroad companies notice before passing the ordinance requiring them to construct the viaduct. Notice afterward, with the opportunity on the part of the railroad companies to contest the validity of the ordinance and the right of the city to compel them to construct the viaduct is sufficient."

And on page 77:

"So, in the present case, while no notice may have been given to the railroad company of the pendency of the ordinance, and while they may not have been invited to participate in the proposed legislation, yet they had an opportunity to, and did in fact, put in issue, by the answer, both the validity of the ordinance and the reasonableness of the amount apportioned to them respectively for the repair of the viaduct in question."

The rights of the street railway company are to the use of the street, and the fact that they enjoy such a franchise in no way limits the rights of a municipality to either change the grade of that street or to alter its course or location as public necessity may require, and it becomes the duty of the street railway company to adapt its tracks and location to such requirement of the city. And so far as the amount to be paid by it is considered, that is to be fixed not as a matter of determination by the city by ordinance, but as a matter of adjudication by the court subject to the legislative restrictions that have been provided.

There is no question as to the right of the city to change the location of Ludlow avenue in making this improvement. Such power is expressly conferred by the terms of Sec. 8875

Hamilton County Appeals.

G. C. The only portion of Ludlow avenue which has been entirely vacated is the part lying between the north and the south lines of the right-of-way of the Baltimore & O. S. W. Ry.-that is, the crossing itself, within the lines of the railroad right-ofway. The other two parts of Ludlow avenue as it previously existed still remain public streets being each a cul-de-sac running from either terminus of the new viaduct to the line of the railroad. But because of the vacated portion at the crossing it becomes an impossibility to cross the railroad on Ludlow avenue at grade. The street railway, therefore, being unable to continue the use of its franchise over that crossing, was compelled by reason of the change in the lines of Ludlow avenue by the construction of the viaduct, to transfer its track and operation from the old to the new line of Ludlow avenue between the termini of the viaduct. In other words, the effect is the same as though the entire old portion of the avenue between those termini had been vacated, so far as continuous passage is concerned.

There is no question but that if a street is straightened, as was done by the construction of this viaduct, or if its location is changed by a detour or shifting of its lines to either side of its old lines, that the street railway could claim a right under its franchise to occupy and use the new lines of the street; and such would be the case in this instance regardless of the stipulation made between the parties that the use and occupation of the viaduct should in no way prejudice their rights in this case And while upon this subject, it might be said that the admission of evidence as to the amount of travel over the viaduct is not regarded as an infraction of this stipulation.

Defendants however have undertaken to argue that this case does not come within the strict literal terms of Sec. 8892 G. C., for the reason that Sec. 12 of the ordinance recites "that the company operating the street railroad over the present intersection shall pay a portion of the city's expense to be hereinafter fixed by ordinance," and that the ordinance which fixes that portion, in the third paragraph of its preamble, states that "Whereas the tracks of the Cincinnati Trac. Co., a corporation under the laws of Ohio, cross the right-of-way of said railroad company at a point where under the plans and specifications it

Cincinnati v. Traction Co.

has been determined to construct such improvement." They argue that because the old crossing at grade is some two hundred and fifty feet further east than the location of the viaduct where the new crossing passes above grade, the "point" of crossing can not be identical in the new and in the old, and therefore that Sec. 8892 does not apply. Such argument is clearly without merit. The same argument might be made as to any sub-grade or overhead crossing because the place of crossing, even though the lines of the street or the lines of the viaduct or subway were identical now with those of the old, the actual tracks would be either many feet above or below the point of the old crossing.

No question is raised in this case as to the reasonableness of the change in location. In fact it is shown by the record that the change is a great benefit both to the traveling public and to the defendants, and that the expense is greatly reduced by the straightening in the line of Ludlow avenue by means of the new viaduct, which forms practically the hypotenuse of a triangle of which the old lines of Ludlow avenue form the other two sides.

The power to so change a highway in separating grades in the crossing of a railway and a highway is well illustrated in the case of Davis v. Hampshire, 153 Mass. 218; and an interesting nisi prius decision upon this proposition is found in the case of Stoner v. Railway. 20 Dec. 448 (9 N. S. 337), in which a railroad subway crossing was substituted for two railway crossings, being 990 feet away from one and 772 feet from the other.

Defendants, however, insist that the charge as fixed by the judgment below is excessive and far beyond any reasonable charge that should be asserted against them, for the reason that the life of the franchise under which they operate is a matter of only thirty-one years' duration, while the viaduct is supposed to be practically indestructible. The proportionate amount of the respective contributions that should be made by the steam railroad company, by the public, represented by the city or county, and by the street railway company operating over the crossing so changed. is primarily a matter for legislative action. The general assembly has laid down the rule fixing the propor

« PreviousContinue »