Miller v. Railway Co.

uses and purposes of a street, but leaves the easement of the street in the abutting owner. The appendant easement forms a large part of the consideration paid for lots.

5. Purpose of Streets—Uses Presumed.

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 the ways were established, and authority to construct and operate a street railway thereon may be granted, providing no constitutional right of adjoining lot owners is impaired or taken away except upon compensation.

Lee & Snider, for plaintiff.

H. J. Booth and David T. Keating, for defendant, cited:

What facts a court or jury may make use of. Barney v. Railway Co., 11 Re. 880 (30 Bull. 286); Harris v. Railway Co., 9 Re. 805 (17 Bull. 265).

As to when the construction of a street railway is an unlawful infringement of street easements appurtenant to abutting property. Oviatt v. Railway Co., 3 Dec. 252 (2 N. P. 84); Schaaf v. Railway Co., 8 Circ. Dec. 688 (16 R. 252); Hobart v. Railway Co., 27 Wis. 194 [9 Am. Rep. 461]; Sells v. Railway Co., 11 Re. 643 (28 Bull. 172); Rafferty v. Central Traction Co., 23 Atl. Rep. 884, 885 [147 Pa. St. 579; 30 Am. St. Rep. 763]; Railway Co. v. Telegraph Assn., 48 Ohio St. 390, 426 [27 N. E. Rep. 890]; Mt. Adams & Eden Park Inc. Ry. Co. v. Winslow, 2 Circ. Dec. 240 (3 R. 425); Simmons v. Toledo, 4 Circ. Dec. 69 (8 R. 535); Pelton v. Railway Co., 10 Re. 545 (22 Bull. 67); Barney v. Railway Co., 11 Re. 880 (30 Bull. 286); Sells v. Street Ry. Co., 11 Re. 643 (28 Bull. 172).

Courts will not enjoin a street railway company from the exercise of its use of the streets, when. Cincinnati & S. G. Ave. St. Ry. Co. v. Cumminsville, 14 Ohio St. 523, 544; Oviatt v. Street Ry. Co., 3 Dec. 252 (2 N. P. 84); Schaaf v. Railway Co., 8 Circ. Dec. 688 (16 R. 252); Budd v. Railway Co., 48 Atl. Rep. 1028, 1029 [N. J. Eq.]; People v. Railway Co., 52 N. W. Rep. 1010 [92 Mich. 522; 16 L. R. A. 752]; Elliott Roads & Streets (2 ed.), Sec. 700, p. 758; Limburger v. Railway Co., 30 S. W. Rep. 533 (88 Tex. 79); Kellinger v. Railway Co., 50 N. Y. 206; Louisville & N. Ry. Co. v. Orr, 15 S. W. Rep. 8 [12 Ky. Law 756]; Ashland & C. St. Ry. Co. v. Faulkner, 45 S. W. Rep. 235 [21 Ky. Law 151]: Hobart v. Railway Co., 27 Wis. 194 [9 Am. Rep. 461]; Louisville Bagging Mfg. Co. v. Railway Co., 23 S. W. Rep. 592 [95 Ky. 50; 44 Am. St. Rep. 203]; Railway Co. v. Telegraph Assn., 48 Ohio St. 390 [27 N. E. Rep. 890].

The main purpose of streets and highways. Railway Co. v. Telegraph Assn., 48 Ohio St. 390, 426 [27 N. E. Rep. 890].

In determining whether the abutter is damaged, it is proper to take into account local benefits. Lotze v. Cincinnati, 61 O. S. 272 [55 N. E. Rep. 828].

Street railway cases in which courts have refused to grant relief.

Franklin Common Pleas.

Barney v. Railway Co., 11 Re. 880 (30 Bull. 286); Oviatt v. Railway Co., 3 Dec. 252 (2 N. P. 84); Sells v. Railway Co., 11 Re. 643 (28 Bull 172); Railway Co. v. Telegraph Assn., 48 Ohio St. 390, 429 [27 N. E Rep. 890]; Budd v. Railway Co., 48 Atl. Rep. 1029 [N. J. Eq.]; People v Railway Co., 52 N. W. Rep. 1010 [92 Mich. 522; 16 L. R. A. 752] Limburger v. Railway Co., 30 S. W. Rep. 533 [88 Tex. 79]; Kellinger v. Railway Co., 50 N. Y., 206; Louisville Bagging Mfg. Co. v. Railway Co., 23 S. W. Rep. 592 [95 Ky. 50; 44 Am. St. Rep. 203]; Ashland & C. St. Ry. Co. v. Faulkner, 45 S. W. Rep. 235 [21 Ky. Law 151]; Hobart v. Railway Co., 27 Wis. 194 [9 Am. Rep. 461]; Rafferty v. Traction Co., 23 Atl. Rep. 885 [147 Pa. St. 579; 30 Am. St. Rep. 763].

WILLIAMS, J.

The plaintiff is owner of lot No. 18 in Mitchell & Watson's addition, abutting on Mt. Vernon avenue, between St. Clair avenue and Twentieth street in the city of Columbus, Ohio.

The defendant is a corporation duly incorporated, and owns and operates a single track electric street railway on said Mt. Vernon avenue from Ninth street to Twentieth street.

Plaintiff says that the defendant is about to remove its said single track railway and lay a double track electric railway upon Mt. Vernon avenue from St. Clair avenue to Twentieth street. The defendant claims authority to lay and operate said double track by virtue of an ordinance of the city council of said city of Columbus, passed on June 2, 1902, authorizing the defendant to lay a double track railway upon Mt. Vernon avenue from Ninth street to Twentieth street.

Said Mt. Vernon avenue, from Ninth street to St. Clair avenue, is about sixty-three feet wide, but from St. Clair avenue to Twentieth street it is only fifty-eight and one-fourth feet wide. Said street between St. Clair avenue and Twentieth street is not of sufficient width for a double track railway which will not interfere with other travel. The construc tion of said double track between St. Clair avenue and Twentieth street will leave insufficient space for a convenient roadway, for carriages and vehicles, and will render travel upon said roadway inconvenient and dangerous, and will diminish and impair travel and traffic on said street, which is, to a considerable extent, a business street and is adapted for business. The laying and operating of said double track will greatly injure said street as a business street, and will cause great depreciation, in the value of said property of plaintiff and of the other owners of lots above mentioned, and will impair access from said street to said property of plaintiff and of said parties in whose behalf this action is brought.

The consent of the owners of more than one-half of the feet front of the lots and lands abutting on said Mt. Vernon avenue, from St. Clair

Miller v. Railway Co.

avenue to Twentieth street, was not obtained or produced to the council of said city before the passage of said ordinance; and neither the plaintiff nor either of said persons above mentioned consented to the granting of the privilege to construct said double track, and the majority of the owners of abutting lots on said line between St. Clair avenue and Twentieth street are opposed to a double track being placed on said street.

By reason of the diminished width of said Mt. Vernon avenue from St. Clair avenue east, the consent of owners from said point alone should be taken and considered, and it is unjust and inequitable that the said grant should be produced through consent of owners of lots west of St. Clair avenue where the street is eight feet wider than it is from St. Clair avenue east.

Said double track will impose an additional burden and expense upon plaintiff and other owners of said abutting lots, for which no compensation whatever is provided by said ordinance or proposed to be paid by the defendant, and will cause great and irreparable injury to plaintiff and said other owners of lots abutting on said street from St. Clair avenue to Twentieth street.

Plaintiff says that the construction of said double track would deprive him and the other said owners of property without compensation in violation of Art. 1, Sec. 19 of the constitution of this state.

The defendant admits that the plaintiff is the owner of said lot No. 18 in Mitchell & Watson's addition abutting on Mt. Vernon avenue between St. Clair avenue and Twentieth street in said city; that the defendant is a corporation, and owns and operates an electric street railway on said Mt. Vernon avenue from Ninth street to Twentieth street; that the defendant claims authority to construct and operate a double track street railroad on Mt. Vernon avenue from a point one hundred and fifty-two feet (152) east of the center of Eleventh street on Mt. Vernon avenue to Twentieth street, under and by virtue of an ordinance of said city, No. 20,029, passed June 2, 1902, and that the plaintiff did not sign a written consent to the construction of said double track. Defendant denies each of the other averments of the plaintiff.

Defendant further says that prior to the passage of said ordinance it was operating under and by virtue of ordinances of said city theretofore duly and lawfully passed and accepted, a line of double track street railroad from High street on various streets, including Mt. Vernon avenue, to a point 152 feet east of the center of said Eleventh street, a distance of five thousand, five hundred and four feet (5,504), and a single track street railroad with three turnouts and switches from said point in an easterly direction to Twentieth street, a distance of three thousand, five hundred and fifty-five feet (3,555), and from said Twentieth street a line of double track street railroad in an easterly direction to Taylor avenue, a distance of three thousand, five hundred and forty-five feet (3,545), an aggregate distance of more than twelve thousand, six hun

Franklin Common Pleas.

dred and six feet (12,606); that said line of single track street railroad, excluding said turnouts and switches, is two thousand, eight hundred and forty-six feet (2,846); that from St. Clair avenue to Twentieth street on Mt. Vernon avenue is a distance of twenty-two hundred and seventeen feet,(2,217); that the legal width of said Mt. Vernon avenue from St. Clair avenue to Twentieth street, is sixty-six feet (66), but the owners of lots and lands abutting on said Mt. Vernon avenue, between St. Clair avenue and Twentieth street, have unlawfully encroached upon said Mt. Vernon avenue to such an extent that said avenue, as now open and used for travel and traffic between said points, varies from fifty-eight and a quarter feet (58) to sixty-two feet (62); that the construction and operation of said line of double track street railroad, described in said ordinance No. 20,029, will have sufficient space for a convenient roadway for carriages and other vehicles, and will not render travel upon 'said roadway inconvenient and dangerous, and will not diminish and impair travel and traffic on said avenue, nor injure said street as a business street, and will not cause any depreciation in the value of the plaintiff's property or of other property abutting on said avenue, nor will it impair access from said street to said property, nor will it cause any injury to the plaintiff or to other owners of property abutting on said avenue, but on the contrary, by the construction and operation of said line of double track street railroad and the improvement in the pavement on said street, incidental thereto, will be of great benefit to said plaintiff and the owners of all other property abutting on said avenue, along which, by said ordinance, the defendant is authorized to construct said double track, and will greatly enhance the value of their said property: that the maintenance and use of a single track street railroad, with turnouts and switches, along said parts of said avenue, instead of a continuous line of double track street railroad, is, and, if continued, would be, a great loss and detriment to said city and the traveling public patroniz ing said line of street railroad, to the owners' property abutting on said avenue and the defendant.

Plaintiff, replying, denies that the legal width of Mt. Vernon avenue, from St. Clair avenue to Twentieth street, is sixty-six feet (66); denies that lot owners abutting on said part of Mt. Vernon avenue have unlawfully or otherwise encroached upon said Mt. Vernon avenue to any extent whatever. He denies that the construction and operation of said line and the improvement in the pavement on said street incidental thereto will be of great benefit to said plaintiff or that it will enhance the value of said property; denies that the maintenance and use of the single track street railroad, with turnouts and switches, instead of a continuous line of double track street railroad, is, and, if continued, would be, a great loss and detriment to the city, the traveling public or the owners of property abutting on said avenue.

No question is raised as to the legality of the ordinance by which

Miller v. Railway Co.

defendant claims authority to lay and operate said double track. That the consent of more than one-half of the feet front of the lots and lands abutting on said Mt. Vernon avenue, from St. Clair avenue to Twentieth street, was not obtained or produced to the city council before the passage of the ordinance, is not important, since it is not denied that the consent of a majority of the feet front along the entire line of the proposed improvement on said Mt. Vernon avenue had been obtained. Counsel for plaintiff in their argument have not urged this as an objection to said improvement.

The testimony shows that Mt. Vernon avenue, between St. Clair avenue and Twentieth street, now has a single track railroad. The width of Mt. Vernon avenue, between said streets, from lot line to lot line, is fifty-eight and one-fourth feet (58), although at some points it is somewhat wider. Its width from curb to curb averages about thirtyfour feet (34), although at some places it is a little wider and at other places narrower. Testimony shows that on this part of Mt. Vernon avenue there are now two switches and turnouts extending, in the aggregate, a distance of about five hundred or six hundred feet. The distance from the outside rail of these switches to the nearest curb stone is about nine feet and nine inches, and this substantially the same width that would be left between the outer rails of the double track and the curb stones on each side of said street, if a double track should be laid.

A street is a public way or road, whether paved or unpaved, in a village, town or city, ordinarily including a sidewalk or sidewalks, and a roadway, and having houses or town lots on both sides. Century Dictionary.

"The rights of the public are much greater in streets than in roads of the rural districts, and the methods of regulating their use, improvement and repair are materially different." Elliott Roads and Streets (2 ed.). Sec. 16, p. 16.

The title to a street is in fee in the municipal corporation in trust for the uses and purposes of a street. Section 2601, Rev. Stat.

Lane, C. J., in the case of Bingham v. Doane, 9 Ohio 165, 168, in speaking of a highway, says:

"Its existence generally contributes to the enjoyment of his lot, and confers additional value upon it, and any act of another, which impairs that value, or interferes with that enjoyment, may be the subject of a suit. * ** The easement-the privilege of the road-the advantage it confers on his land, is his, but not the road itself. The right lies not in livery, but in grant."

This appendant easement forms a large part of the consideration paid for lots." Crawford v. Delaware (Vil.), 7 Ohio St. 459, 469.

"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