Hamilton St. Ry. Electric Co. v. H. & L. Electric Transit Co.

3 Ohio Cir. Dec. 158

• Court: Butler Circuit Court
• Decided: September 15, 1890
• Status: Published

Opinion

SMITH, J.

We have heard the evidence offered in this case by the parties, and now state our views and conclusions thereon very briefly.

First. — We are of the opinion that under the law and facts in this case, the court has no right to do more than to protect the parties, plaintiff and defendant, from any invasion by the other of the privileges granted to them by the ordinances under which they severally claim.. And that we cannot legally assume or undertake to prescribe the mode or manner in which either shall construct or •operate its road. This is to be done by other authority.

Nor do we think that we should in this case, at the instance of the defendants, determiredradjudicate,whetherforany reason the plaintiff company has forfeited the right given to it by the ordinance, to construct and operate its road. This also, in the first instance, is a matter 1'or the consideration and decision of the city council, which (if the forfeiture has occurred) may insist upon, or waive iff Nor can we refuse proper relief to the plaintiff on the alleged ground, that but little, if any work has been done by it up to this time, in the construction of its road. It must be conceded that the time between this and December 30, 1890, (at which time the line of plaintiff’s road, was by the provisions of the ordinance to be completed) is not so short as to render its completion impossible by that time.

Morey, Andrews & Morey, for plaintiff. Thos. Millikin and A. F. Hume, for defendant.

We hold, secondly, that the defendant company has no right to interfere with the franchises or vested rights of the Hamilton Street Railroad Co. by placing its track, as it is proposing and intending to do, over that of the horse-car line., which now legally occupies the center of High street from Second to Third.

Third. — That under the ordinances of the city, the plaintiff has a right tc* construct a double track road on High street, between these two streets, and the defendant company the right to place at least one track thereon; and sáid tracks are to be as near the center of said street as practicable.

Fourth. — That if the plaintiff is now ready, as it claims to be, and is desirous of building its single or double track on said square, the court holds that it may do so, and if within ten days from the entering of this judgment, it will construct a track on said square, it may be doñe by placing it immediately in the center of the street, in which event the defendant company, having in effect, elected to run its track on the south side of the center of said street if two tracks are to be laid thereon, is at liberty to place its said track say--feet south of the track in the center of the street, and plaintiff can place its second track-feet north of its other track, if it hereafter desires to do so. And if one or two tracks are so constructed by plaintiff company, proper crossings are to be made by the two companies, according to the law on this subject.

But if the said plaintiff, should not within the said ten days put down said center track, then the defendant company shall have the right to proceed at once and put down its track on the south line of the center of High street, between Second and'Third streets, at such distance south of the horse-car track now there, as will not interfere with the proper operation of either.

Sixth. — While we disclaim any right to require the defendant company to unite with the plaintiff in the construction or operation of the two tracks upon this square, as proposed by the plaintiff, we may say that it seems to us clear that it ought to be done. In the first place, it is manifest that it will be greatly to the interest of the public, that there should be two and not three tracks upon this square. And in the second place, it seems equally clear that it would be for the advantage of both companies to have the right to use one of these two tracks for their cars passing in one direction, and the other for those passing in the opposite direction. And we see no reason whatever to believe that if the two companies so agree, that the right of the defendant company (0 use both these tracks in this way can be questioned by anyone. If from any cause, the plaintiff1 company on principles of justice and equity, ought to pay more than one-half of the cost of the construction of these two tracks, and the crossings,, etc., it should do so, and it has proposed in open court that the tracks should be so constructed, and that the court should determine as to what porportion of such cost should be paid by each of said companies. This we esteem to be perfectly fair, and in our judgment it should be accepted by the defendant company. But this is a question to be settled by it or by the council, and not by us.

Seventh. — The case may remain upon the docket of the court for'such further or final order, as to costs, or the other rights of the parties, as to the court may seem just and equitable.