Verera v. A. B. & C. R. R.

11 Ohio Cir. Dec. 664

• Court: Ohio Circuit Courts
• Decided: February 15, 1896
• Status: Published

Opinion

Marvin, J.

No. 1656, is the case of the Board of Commissioners of Cuyahoga county against the Akron, Bedford and Cleveland Railroad Company, to enjoin the construction of the track of the railroad company along the northeasterly side of the state road passing through the hamlet of New-burgh.

The commissioners make the claim that this road shall not be laid along the northeasterly side, because they, the commissioners, recently, before the railroad company undertook to construct this' road had expended considerable money under the statute found in 92 O. L., 190, which statute authorized the levying by the commissioners of a tax on the entire property of this county to construct and improve public roads outside of cities and incorporated villages. The commissioners say that a franchise was granted "by them to the railroad company to construct and lay this track on the southwesterly side of that road.

Now, without going into discussion of all that is before us, we find that Sec. 1651, Rev. Stat. of Ohio gives the trustees of hamlets the exclusive jurisdiction of public roads and streets, alleys, sewers, and drains within the limits of the incorporations; trustees of the hamlet have exclusive jurisdiction.

Now, that being true — and let me, say that language is a little stronger than Sec. 2640, Rév. Stat., which gives the control of streets to the council of other incorporations than hamlets — that being true it seems to us the commissioners cannot maintain this action. Whether the trustees have given a franchise to this company or not, it seems to us that the commissioners cannot maintain an action to enjoin the use of a street, the exclusive control of which0is given to the trustees of the hamlets, and the petition for the injunctions is dismissed.