Cincinnati & H. Electric St. Ry. Co. v. C. H. & I. R. R.

12 Ohio Cir. Dec. 113

Opinion

Swing, J.

This cause came into this court on appeal, and was heard upon the demurrer to the petition, which demurrer was overruled, and thereupon the cause was heard upon its merits.

The-plaintiff alleges that it is a corporation organized under the laws of Ohio for the purpose of constructing and operating a street la lroad within the city of Hamilton, Butler cour^, Ohio, and between said city oí Hamilton and the city of Cincinnati, Hamilton county, Ohio. That it has acquired a franchise and grant from the municipal authorities of said city of Hamilton to construct, operate and maintain an electric street railroad within the corporate limits of said city and along certain streets specified in said petition, one of which is Front street. That the said defendant has an easement over, and has constructed and is operating a steam railroad over and along, Sycamore street in said city, and that in order for plaintiff to construct its street railroad, it is necessary to cross the tracks of the defendant’s steam railroad at said Front and Sycamore streets; that said defendant is in certain unlawful ways preventing said plaintiff from putting in its said crossings, and an injunction is asked against said unlawful interference.

To this petition the defendant answered and averred :

First. That the plaintiff was not a steam railroad, but was an electric interurban railroad, organized for the purpose of constructing, operating and maintaining a railroad in and between the city of Hamilton, Butler county, Ohio, and the city of Cincinnati, Hamilton county, Ohio, a distance of twenty-five miles.

Second. That said plaintiff had not complied with the provisions of the law passed April 27, 1896, as amended April 25,. 1898, 92 O. L., 315, and 93 O. H, 334, Sec. i¡47f, Rev. Stat., and had not prepared or presented to the commissioner of railroads of the state any interlocking or safety device for such crossing to the satisfaction of said commissioner, and that the crossing proposed to be made did not comply with said law.

Third. That said plaintiff had not complied with the provisions of the law passed April 21, 1898, 92 O. T., 154, Sec. 3365-28, Rev. Stat., and had made no agreement with the defendant as to the construction of any overhead wires or trolley, or the heighth thereof, nor has it attempted to make any agreement with reference to such trolley wire, nor has it secured the approval of the commissioner of railroads and telegraphs of the state of Ohio as to the heighth of the trolley wire proposed to be placed over the tracks of the defendant, as required by said section.

Fourth. That plaintiff had never obtained any right by agreement with the defendant, or by appropriation proceedings, to cross the tracks of the defendant, and that the plaintiff was seeking to appropriate the . property of the defendant without compensation.

To this answer the plaintiff replied, in which it denied :

First. That its road was an electric railroad, but avers that it is a street railroad.

Second. That the law of April 25, 1898, had no application to the construction or operation of a street railroad, and that it was not required to have the approval of the commissioner of railroads and telegraphs to cross the tracks of a steam railroad at grade.

Third. That it had complied with the provisions ol the law of April 21, 1898, by placing all its wires that crossed defendant’s tracks, twenty-five feet above the top of the rails "of said steam railroad.

Fourth. It denied that the defendant had any property rights in said Front street which plaintiff was required to appropriate or compensate defendant therefor.

The statutes of the state of Ohio relating to railroads are separate and distinct from those relating to street railroads, and the legislation as to each has been carefully kept separate, and the statutes as to railroads do not apply to street railroads, unless made to do so by clear reference. We are of the opinion that the plaintiff is a street railroad, at least within the city of Hamilton. It is denominated a street railroad, and is given the use of the streets as a street railroad not differing in any respect from other street railroads; and as the legislature by an act passed March 19, 1896, 92 O. L., 79, Sec. 2780-17, Rev. Stat., classifies suburban and interurban railroads, whether operated by electricity, animal, or other motor, as a street railrpad, it would seem that the plaintiff’s road outside of the corporate limits of the city of Hamilton is to be controlled bj? the statutes governing street railroads.

The main reason assigned why the plaintiff should not be entitled to lay its crossing at the point in controversy, arises from the construction to be placed on the law as found in 92 O L,., 315, as amended in 93 O. I/., 334. We are of the opinion that said act does not apply to electric street railroads. Most all street railroads are now electric street railroads ; it is almost the universal kind of street railroad in the whole country. We have very many provisions in our statutes which apply to street railroads, and all of these statutes which are intended to apply to street railroads use the word “ street.” Here the word is “ electric railroad; ” besides, if intended to apply to street railroads, it would seem incredible that it should only apply to crossings hereafter to be constructed, and not as well to those already constructed. The only reason for its passage was probably the protection of human life, and if thought necessary to be applied to crossings hereafter to be constructed, it would be just as necessary to those already constructed, and the number constructed in the state must be very many indeed and largely in excess of those that will be constructed for years to come. The primary object of the law was to provide for railroads to cross without stopping when interlocking devices were used. Steam railroads were never required to stop at street railroad crossings, therefore it could have no application to steam railroads crossing a street railroad. It could not in the nature of things apply to street railroads crossing steam railroads, for there could be no desire or occasion for a street railroad to want to cross a steam railroad without stopping. It is no hardship on a street car to stop; time is not so pressing but what they can very well stop. It seems to us that the provisions of the statutes for 'the protection of street cars are abundant and a great deal more suitable than the interlocking contemplated by these provisions, 88 O. R., 581, Secs. 3443-5 and 8443-7, Rev. Stat. The wisdom of the law that requires that they should stop and send a man ahead must be manifest to every one, and before such a wise provision of the law should be dispensed with there should appear some good and sufficient reason therefor.

There was apparently a good reason why a steam railroad should want interlocking devices so that trains might proceed without stopping. The time and expense required by an express train to stop, for instance, is a very considerable item. Nothing but necessity should, stop them, and when perfect safety could be had by putting in interlocking devices, it is very desirable that such should be done, but all these elements are lacking so far as street railroads are concerned. It requires neither time nor expense to stop a street car; there is no necessity to run over a steam car track at full speed, in fact it cannot we 11 be done. As far as a street car is concerned, there is about as much necessity for having interlocking devices when crossing street car tracks, as when crossing steam car tracks. All that is required of a street car when crossing a steam railroad track, is to stop and look and listen, and this can be done withqut interlocking, under the present provisions of the statute. It seems to be too plain to admit of any question but what section one of this act was only intended to apply to steam railroads or electric roads operated as steam railroads, and nor to street railroads, although operated by electricity. If the first section does not apply, it would hardly be expected that the third section, which certainly is intended to be a part of the same subject matter, should be applicable to an entirely different matter. To introduce an entirely different subject in the third section would be a very clumsy piece of legislation. The various provisions of our statute have always treated steam railroads and street railroads separately, and the necessities of the case seem to require this as they have litt.le in common. To have an act to apply to both without designating both steam and street, would hardly be expected, and the fact that the word “electric” is used would not do away with this necessity, although street cars use electricity; for if street cars use cable, or horses, or any other power, there would be the same reason for these devices as for street cars using electricity. We think street car crossings were not in the purview of the legislature when these acts were passed.

The law of April 21, 1898, 93 O. L., 154, Sec. 3365-28, Rev. Stat., expressly provides that “all telegraph, telephone, electric light'or other wires of any kind constructed over the line of any steam railroad within the state of Ohio, * * * to clear the top of the rails at least twenty-five feet, except in cases of trolley wire crossings^ when such height, as may be agreed upon is approved by the commissioner of railroads and telegraphs, shall govern. It is very evident that the only wire that can be strung at a less height above the tracks of a steam railroad than twenty-five feet is the trolley wire, and this wire can only be placed at a less height by agreement of the parties, when approved by the commissioner of railroads and telegraphs. If the trolley wire is placed twenty-five feet above the track, the same as the other wires, there is no necessity for the approval of the commissioner of railroads' and telegraphs.

So long as it is a settled law of this state that a street railway is not an additional burden to that of the easement which the general public has in the street, and that the street railroad company’s right to use a street is founded on that easement, that long it must be held that the right of such a street railroad to cross over the tracks 'of a steam railroad laid on such street, is subject to no conditions other than those to which the general public is subject in traveling over such street. When the C. H. & I. Railroad Company obtained its right of way over and along Sycamore street, it did so subject to the right of the general public to use that street and the street crossings over the railroad track, including the crossing at Front street. Pedestrians and carriages and omnibuses and all other vehicles have a right to pass along Front street and cross the tracks of the C. H. & I. Railroad Company. A street car running upon rails laid upon the surface of the street and used in the ordinary way under the regulations of city authorities, is merely another sort of carriage. The C. H. & I. Railroad Company having obtained its right of way subject to the burden of the easement of the public in general in Front street, the plaintiff’s company bj' virtue of the grant made to it by the city council of the city of Hamilton, being entitled to the use of that easement, all the rights the C. H. & I. Railroad Company obtained in Front street for its steam railroad were subject to the right of the street railroad to use the street. In short, the C. H. & I. Railroad Company’s rights obtained in the use of Front street for its steam railway, were subject to the burden of the street railway’s use thereof in the ordinary and proper manner for its street railway; and the street railway purposing to use Front street at the crossing on Sycamore street in the ordinary and proper manner for the construction of a street railroad crossing it would therefore not be a taking of private 'property without just compensation, because it dees not purpose to take from the C. H. & I. Railroad Company anything it ever owned. It never owned its right of way over and across Front street free from the burden of the public easement, a part of which easement belonged to the street railroad company. Cincinnati & S. G. St. Ry. v. Cumminsville, 14 Ohio St., 523; Pelton v. Railroad Co., 10 Dec. (Re.) 545, (22 B., 67); Simmons v. Toledo, 4 Circ. Dec., 69 (8 R., 535) ; Chicago & Calumet Terminal Railroad v. Whiting, 38 N. E. Rep., 604 [139 Ind., 297; 26 L. R. A., 337; 47 A. S. Rep., 264]; Chicago, Burlington & Quincy Railroad v. Street Railroad, 40 N. E. Rep., 1008 [156 Ill., 255; 29 L. R. A., 485],

The injunction will be made perpetual.

Cox and Smith, JJ., concur.