Dyer v. Cincinnati, Portsmouth & Virginia Ry.

4 Ohio Cir. Dec. 584

• Court: Hamilton Circuit Court
• Decided: January 15, 1893
• Status: Published

Opinion

SWING, J.

We think the demurrer should be sustained.

If the said agreement entered into, or to be entered into, is an illegal contract, it can in no way prejudice the plaintiffs. If it is contrary to law, it can not stand in the way of the County Commissioners performing the duties enjoined upon them by the law.

If they are not acting in accordance with the law, and it is desired that they should, the action should be against them in mandamus to require them to perform the act as required by law.

The property owners abutting on this road would have no right of action against the railroad company for maintaining its tracks in the road. It is a county road, and its improper occupancy, if any exists, is a matter for the County Commissioners. -

And the commissioners should not be enjoined from proceeding with the improvement upon any other grade than the one set forth, as there is no allegation that they are going to do so when- -as there is an allegation — they have contracted to improve the road in accordance with the grade alleged to have been established by said act.

The demurrer, we think, should be sustained, and the petition of plaintiffs dismissed.