Butler Common Pleas.

Gilmore, J., at page 316 of the opinion of the court, says: "Notwithstanding this statute is retrospective in its nature, it is not in conflict with Sec. 28, Art. 2 of the constitution. * * *

"The legislature in which is vested all legislative power not pro hibited by the constitution, had the power, therefore, to pass a curative statute retrospective in its nature, which, like this, does not impair contracts or disturb absolute vested rights already existing. * * * From the nature of the three acts of 1868, which followed each other in rapid succession, it is plain that the legislature not only saw and felt the necessity of amending the defects of the prior laws on the subject, but also the necessity of curing the defects that had occurred in proceedings everywhere, under those defective statutes. In the exercise of its plenary powers, the legislature, in cases of this nature, could cure and render valid, by remedial retrospective statutes, that which it could have authorized in the first instance by proper enactments. There is no doubt that the legislature could, in advance, have provided by law for the improvement of roads, by means of the very steps and proceedings that were had and taken by the parties and officers in the case under consideration, and if such had been the case, the plaintiffs would have been bound to pay the assessments made against them."

Our inquiry, therefore, in this case must be addressed to the question as to whether or not this law impairs vested rights or attaches a new disability in respect to a transaction already past.

What is the nature of the right conferred by the original Secs. 2502 and 3439 of our revised statutes? Is it a right in the nature of a property right, or is it a right conferred solely by statute?

In order to answer this question correctly we must look at the subject matter of this litigation. The controversy here is as to the right to occupy certain public streets of this municipality for street railway purposes.

Under whose control are the streets of a municipality in Ohio? What is the effect of a grant to a street railway company?

"The grant includes nothing more than the right to maintain in the highway, still occupied, controlled and used by the public as before, a structure adapted to the running of cars for the carriage of passengers." Cincinnati & S. G. Ave. St. Ry. Co. v. Cumminsville, 14 Ohio St. 523, 545.

"Among the most obvious of the incidents attending the acquisition of land for a common highway, is that of improving, repairing and maintaining it in the best possible manner, to facilitate travel and transportation. By what means or agencies this end shall be accomplished, is a matter of pure legislative discretion, with which the owner of the land has no concern, except as one of the public at large, and as such conclusively bound by the action of their common representative-the legislative body."

Hume v. Traction Co.

The lawful right" of a street railroad company "to occupy and use," by agreement with the public authority, "a public road or street, when no special and particular injury is done to any individual, cannot be reasonably doubted." Cincinnati & S. G. Ave. St. Ry. Co. v. Cumminsville, 14 Ohio St. 523, 544, 545.

"The state holds the highways in trust for the public, and may allow a railway in a street, bec: use it promotes the purposes of the highway, enhances the public convenience, and is in discharge of the trust. A street railway is, in theory and in fact, an improvement of the street, and it becomes a part of the highway." Hoefgen v. Railway Co., 12 Dec. 621.

If it be conceded then that the state, through the municipal corporation as its agency, can grant rights in the street, was this right modified or restricted by the privilege conferred by Secs. 2502 and 3439, Rev. Stat.?

"In seeking a construction of legislation in respect to the consents required of property owners to construct and operate a street railroad it must be borne in mind that such legislation is not passed in obedience to any constitutional requirements calling for it, and because the legislature has not such an interest in the streets as enables it (within certain limitations) without the consent of the property owners abutting on them to grant to a street railroad the right to occupy them; but that is enacted in pursuance of a legislative policy which deems it wise to concede to the property owners on the streets a voice in the question as to whether the grant shall be made. The construction of the statutes as respects consents, therefore, is merely to determine the legislative policy declared by them." Neare v. Railway Co., 4 Dec. 475, 476 (29 Bull. 171), Cincinnati superior court, opinion of Judge Smith.

Some railroads were constructed before the consents of a majority of the property holders were made a prerequisite to such construction. It was not until 1860 that the consents of abutting property holders were required, under what was known as the Ferguson law, 57 O. L. 19. See Neare v. Railway Co., supra.

This shows that the legislature at one time exercised the power of granting franchises without the consents of the property holders being first obtained. But it is claimed by counsel for plaintiff that this right given to the property holders to consent or object is an interest in property; is an incorporeal hereditament, and as such it cannot be taken away by a law subsequently passed; that the property holder has an interest in the street upon which his property abuts, is well settled in this state.

"The owner of a lot adjoining a road has a specific interest in the privilege of the road itself. Ordinarily his land extends to its center, as it is presumed to be taken from his land. *** Its existence generally contributes to the enjoyment of his lot, and confers additional

Butler Common Pleas,

value upon it, and any act of another, which impairs that value or interferes with that enjoyment, may be the subject of a suit.

"Where all highways run over land of another, the creation of the easement does not extinguish all the interest of the owner; he still claims all not incompatible with the right of passing." Bingham v. Doane, 9 Ohio, 165, 168.

"Distinct from the right of the public to use a street, is the right and interest of the owners of lots adjacent. The latter have a peculiar interest in the street, which neither the local nor the general public can pretend to claim; a private right of the nature of an incorporeal hereditament, legally attached to their contiguous grounds, and the erections thereon; an incidental title to certain facilities and franchises, assured to them by contracts and by law, and without which their property would be comparatively of little value. This easement, appendant to the lots, * ** is as much property as the lot itself." Crawford v. Delaware (Vil.), 7 Ohio St. 459, 469.

In the case just quoted the following statement is made:

"The general assembly of Ohio is limited and restricted in its powers. Its statutes are void if unauthorized by the constitution. If, by statute, it confers powers upon municipal corporations, those powers must be exercised, and are presumed to be conferred, in subordination to the constitution, and to the rights of property, whether corporeal or incorporeal. If the land of a citizen or his rights in property are commanded to be taken from him, it is beyond the power of the general assembly to authorize either to be touched, until compensation is made.” Crawford v. Delaware (Vil.), supra, page 467.

The latest declarations upon this subject by our Supreme Court are found in the case of Callen v. Electric Light Co., 66 Ohio St. 166; and the case of Schaaf v. Railway Co., 66 Ohio St. 215, wherein the previous decisions of that court, in Crawford v. Delaware (Vil.), Cincinnati & S. G. Ave. St. Ry. v. Cumminsville, supra, and Railway Co. v. Lawrence, 38 Ohio St. 41 [43 Am. Rep. 419], are expressly approved and followed. These cases hold:

"The title which a municipal corporation acquires, under Sec. 2601, Rev. Stat., to streets dedicated by a proprietor who subdivides lots for sale, is held for the use of the public for street purposes."

"An owner of a lot abutting on such street has a property interest in the street in front of his lot which cannot be taken against his will except upon the terms provided by the constitution, viz., that a compensation shall first be made in money or by a deposit of money." Schaaf v. Railway Co., supra.

The first of these cases, Callen v. Electric Light Co., supra, was an action against the Electric Light Company, and it was held that "The placing * of poles at the curb in a street, and the stringing thereon of electric light cable lines and wires for the purpose of furnish

* *

Hume v. Traction Co.

ing light *** is a diversion of the street from the purposes to which it was dedicated, and is a taking of the property of the abutting owner within the meaning of Sec. 19 of the bill of rights."

In the second of these cases, Schaaf v. Railway Co., supra, it was held that:

"The construction and operation of an interurban railroad, laid with Trails, entirely on the side of a public highway next to the abutting improved farms, owned and occupied by the plaintiffs, and entirely between their lands and the traveled part of the highway, X ** is an additional burden on the public highway and obstruction to, and interference with the plaintiffs' easements and rights therein."

The opinion of the court in Callen v. Electric Light Co., supra, as rendered by Spear, J., holds that the interest of the property holder "is a private right of the nature of an incorporeal hereditament legally attached to the contiguous grounds and the erections thereon." And "there is no substantial difference in the right of the owner of * * * a lot abutting on a city street in such street. * ** In both situations the right of the public is for road or street purposes, and is necessarily limited to such control as is necessary to accomplish those purposes.

"The opinion further declares that "if the right of user is an essential element of ownership, then whatever physical intérference annuls this right takes property."

These decisions leave no doubt in the mind of the court as to the nature of the property holder's private personal property right in the street in front of his premises. But the question still remains: Was his right under Secs. 2502 and 3439, Rev. Stat., to give his consent to the passage of an ordinance granting a franchise to the street railway company a property right, or was it simply a right accorded to him by the legislature as a matter of favor?

This case has been very ably argued; counsel have cited the court to a great number of decisions, and the court has been materially assisted in coming to a determination of the case by copies of the briefs of counsel for the several parties filed in the Supreme Court of Ohio in the case of the defendant company against O. V. Parrish, now pending.

In this last named case counsel representing defendant in this case have argued strenuously that the right of the abutting property owner is a property right, and consent for the plaintiff in this case has just as strenuously contended that it is not a property right, but a right granted by the legislature as a favor.

The attorneys have changed their positions with all the ease and grace of practiced mental gymnasts, and each one has almost persuaded the court that his former contention was erroneous.

I find no better statement of the relations sustained by the property owner to the street than that contained in the brief of counsel for

Butler Common Pleas.

defendant in error in the Parrish case, supra. I quote from pages 18 and 19 of this brief:

'It is well settled doctrine in this state that the lot owner sustains a three-fold relation to the street. (1.) As one of the general public. (2.) As owner of the reversionary interest to the center of the street. (3.) As owner of a lot with the incidental right of ingress and egress to and from the street.

"In the first relation he has the right in common with every member of the public to the use of the street. In the second relation as the owner of a qualified fee in the street, he may prevent the diversion of that portion of his land to purposes which exclude the original use, or subject it to additional burdens. In the third relation he may prevent any act which would destroy or materially impair his right of access. But he is not entitled to protection against mere consequential damages which he suffers in common with others.

"This right of an owner in a street may be illustrated as where the grade has been established and improvements made in reference thereto, and the railroad company interferes with the grade or destroys the right. of ingress and egress to his property, these are rights, if invaded by a railroad company, or any other person, that the abutting owner can complain of, but he cannot complain so long as the street is used for its original purposes.

"The use of streets by street railways is held to be within the original use for which the highway is dedicated. Citing Cincinnati & Spring Grove Ave. St. Ry. Co. v. Cumminsville, 14 Ohio St. 523.

"And, but for the provision of the law that no grant shall be made to a street railroad company of the streets without the consents of more than one-half of the feet front of the abutting owners, the sovereign power, or council could grant such use without his consent, and he could not complain unless the street railroad impaired some incidental or acquired right of such owner in the street.

"We contend that the purpose of the consents required in Secs. 2502 and 3439, Rev. Stat., is not to part with these incidental or acquired rights so as to forego compensation when the railroad company in constructing its road, invades, destroys or injures these rights."

The right to condemn and appropriate consents of abutting property holders is not given to a street railroad company.

Section 3440, Rev. Stat., provides :

"When the council or commissioners make such grant, the company or person to whom the grant is made, may appropriate any property necessary therefor, when the owner fails to expressly waive his claim to damages by reason of the construction and operation of the railway ✶ ✶ * provided nothing herein contained shall affect the rights of property owners to give or withhold their consent concerning the right of way for street railroads upon any street or road."