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Tuscarawas County Appeals.

can a court relying wholly and entirely upon the language used infer that the bridge is or will be constructed not far from the point where the old bridge stood! Has not the court the same right to rely upon the word at and say that the bridge will be built at the point where the old bridge stood ?

The court in passing upon the demurrer has no right to go outside of the petition for information, but must rely wholly and entirely upon the language used in the petition.

The demurrer challenges the language of the petition as not being sufficient in law, but must and does admit all the allegations to be true.

Can it be properly claimed from the language used that the contract does not provide that the new bridge can be built at a point where the old bridge stood? We think not. And if this be true then the petition is good as against a general de murrer.

If the defendants did not know, or could not ascertain from the language used in the petition, whether the new bridge was to be built at a point where the old bridge stood, or not far from the point where the old bridge stood then it was their privilege to file a motion, asking that the petition be made definite and certain in this particular.

The most that can be claimed for the language used, is that it is indefinite; if so, then the objection should have been raised by motion and not demurrer.

The sufficiency of pleadings under the code as to certainty, precision, definiteness and consistency of allegation, and indeed in respect of every other variety of defect of allegations which does not amount to such an absolute omission of fact as to constitute no ground of action or defense must be taken advantage of or objected to by motion under the provision of the code, and can afford nu ground for demurrer.

The demurrer admits all that is expressly alleged and properly set forth in the petition, and also whatever can, by a fair and reasonable intendment be implied from the allegations of fact contained therein.

Taking this view of it, and upon the whole case, a majority

Swanson v. Commissioners.

of the court is of the opinion that the common pleas court erred in sustaining the demurrer, and the judgment below is reversed, and the cause remanded to the court of common pleas with direction to overrule the demurrer to the petition, and for further proceedings according to law.

Powell, J., concurs.
Shields, J., dissents.

INJUNCTION-RAILROADS.

[Stark (5th) Court of Appeals, April 22, 1916.)

Shields, Powell and Houck, JJ.

JOHN SOMMER v. PENNSYLVANIA Co.

Injunction Against Placing Railway Track in Street until Abutting
Owner Compensated.
It is the duty of a court to protect the rights of an abutting

owner in the street, and where it is proposed to place a rail.
way track across the street with crossing gates, and the
obstruction will be near enough to the property of an abut-
ting owner to materially affect it or depreciate its value, in-
Junction will lie until the property owner has been properly

compensated.
[Syllabus by the court.)

APPEAL.

Pontius & McDowell, for plaintiff.
Cary & Armstrong, for defendant.

HOUCK, J.

The plaintiff commenced suit against the defendant to enjoin it from constructing its railroad track along the corner of, and within a distance of about nine feet of the lot owned by plaintiff, on which is located a business property; also to enjoin it from construing crossing gates across the street, directly in front of the business property of said plaintiff.

The plaintiff in his petition, in part, says:

"That he is the owner of the following described real estate in the city of Canton, county of Stark and state of Ohio, being described as follows: Parts of lots known as lots No.

Stark County Appeals.

796 and 495 in said city of Canton, Ohio, and beginning at the north-east corner of said lot No. 796; thence westwardly along the north line of lot No. 796 and No. 495 a distance of 85 feet; thence southwardly and parallel with the east line of lot. No. 796 a distance of 72 feet; thence eastwardly parallel with the north line of said lot No. 796 a distance of 85 feet; thence northwardly along the eastwardly line of said lot No. 796, 72 feet to the place of beginning.

That said lot has a frontage of 72 feet on what is known as Market Avenue South in said city of Canton, Ohio, on the west side of said avenue. That said street has been duly dedicated to the use of the public as a street, the fee thereof being vested in said city in trust for said public use; that said street along said premises is 60 feet wide; and has been open for travel and public use for more than fifty years; that his said premises and the building thereon are of great value, and which improvements thereon were made with reference to the present location of the tracks of the defendant.

The said defendant is operating its railroad through said city and that four of its tracks cross said Market Avenue South, and that said tracks are laid şide by side and have been in their present location for many years past. That said defendant company is now building a depot or station on the east side of Market Avenue South and northwardly from its present tracks about 125 feet, and that it is about to and will unless restrained by this court, build one or more tracks for its use, as a main line across said Market Avenue South, and northwardly from where its said tracks are now located, and if permitted to do so that the north line of said tracks will intersect the east line of said Market Avenue South directly opposite on said Market Avenue South, and so that the said tracks will intersect the west line of Market Avenue South at a point about five feet southwardly from the southeastwardly corner of said premises of the plaintiff ; and it proposes to build said tracks across said street at grade, and will place crossing gates in said Market Avenue South, northwardly of said tracks, and plaintiff says that such construction of said tracks and crossing

Sommer v. Pennsylvania Co.

gates will be an obstruction of the said street along and in front of his entire premises; and that the defendant has no right or anthority at law to do same, and has no right to use said street by crossing it with tracks in any other manner or place than it now uses the same; that said proposed construction will constitute a change or alteration of the location of its railroad across said street at grade; that said contemplated change will render the plaintiff's property worthless and will deprive him of his property right in said street and the private rights and easements which he now has by reason of being the owner of the premises herein before described; and that the contemplated use of said street will be a diversion of it to other purposes from which it was dedicated. Plaintiff says that he will be irreparably damaged, for which he has no adequate remedy at law, and prays for an injunction against the defendant and other equitable relief.”

The defendant, by its answer, denies all of the material allegations in the petition of the plaintiff and further says that at the time the plaintiff purchased the real estate described in his petition, and made the improvements thereon, that he had full knowledge of the nature and extent of all of the contemplated improvements that were about to be made by the defendants; that said improvements, gates and changes of tracks contemplated hy defendant will in no way interfere with or damage the plaintiff ; and that he will not suffer irreparable damage, and that he has an adequate remedy at law, and prays that plaintiif's petition be dismissed.

The plaintiff filed a reply to the answer of the defendant, which is, in substance, a general denial of all of the material allegations in the answer of the defendant.

Upon the issue joined, the cause was tried in the common pleas court, and a decree was entered in favor of plaintiff, granting him all of the relief prayed for in his petition, and making the temporary restraining order and injunction heretofore allowed perpetual.

The cause was appealed to this court. The defendant filed

7 0. C. C. Vol. 36

Stark County Appeals.

a motion, in this court, to suspend or dissolve said injunction for the following reasons, to-wit:

“First, for the reason set forth in the answer herein filed in this case.

“Second, the ultimate relief, if plaintiff is entitled to any, is compensation and damages, and plaintiff's rights in the premises can be fully secured and enforced without the delay and inconvenience incident to injunction.

The motion was submitted in this court, on the testimony as appears in the record below.

The material facts are not in dispute, and the court is called upon to determine the question of law, which is conceded by counsel upon both sides to be but one, and that is, has the plaintiff pursued the proper remedy?

The plaintiff contends that his remedy is injunction, and the defendant maintains that the plaintiff has an adequate remedy at law, and if he has been damaged he should resort to a court of law and seek a recovery in damages, and not to a court of equity for injunction.

The question herein submitted is one of importance and vital interest to the parties to this suit.

Upon the one hand we have a private individual who is the owner of a business property, who maintains if the defendant is permitted to lay said tracks and erect said gates in and on said street as set forti in plaintiff's petition, it will result in great damage to him and his property.

Upon the other hand, we have a railway company with large money and property investments seeking to extend its interests by the laying of tracks, which must be conceded will not only be of value to the defendant company, but of great value to the general public.

The defendant company by its counsel, argues with much force and contends that under Sec. 8765 G. C., of Ohio, that the plaintiff's remedy is one at law.

Counsel insist if a strong judicial interpretation is given this section in question, that the remedy that plaintiff should pursue is an action for damages and not for injunction.

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