Wabash Company v. City of Defiance
This was a petition, in the nature of a bill in equity, originally filed in the court of common pleas for Defiance county, Ohio, to enjoin the city of Defiance from proceeding with a contemplated improvement of North Clinton street and Ralston avenue, by which those streets would be so graded as to necessitate the removal of certain bridges erected by the plaintiff over its roadway, where it crosses those streets, and also the approaches constructed by the plaintiff to those bridges.

The material facts were that in the year 1887 the Wabash, St. Louis & Pacific Railway Company, then operated by one McNulta as receiver, crossed two public streets or highways in that city, known as the 'Holgate Pike' and the 'Brunersburg Road,' respectively, at a grade about 18 feet below the grade of said streets where the same crossed the railway, and that there were two overhead wooden bridges at about that distance above the track of the railway.

On December 20, 1887, the city council of Defiance passed an ordinance permitting this rallway to erect new bridges over and across its tracks, where the same crossed these two highways, provided said bridges should be of good and substantial construction, placed in the center of the street, with 18 feet wide roadway, good and substantial sidewalks, 8 feet on each side of said bridges, and with proper railings on each side of said walks, which bridges and walks were to be kept in good repair by the company. The railway was further required to allow a distance of 21 feet in the clear between the tops of its rails and the bottom of the floor beams of the bridges, and also to construct approaches at not exceeding 1 1/4 inches to the foot grade, and to make the same solid by either stone or gravel, etc.; all to be done to the approval of the city, and to be kept in repair by the company. This ordinance is printed at length in the margin. 

Thereupon McNulta, acting as receiver, caused these overhead bridges to be constructed, with their approaches, at a cost of more than $2,300.

The terms and conditions imposed by the ordinance seem to have been faithfully kept and performed by him and by the plaintiff, since it was placed in possession of said railway property, which was sold, under a decree of the United States circuit court, to the plaintiff, as purchaser, whereby it became vested with the railway, and all its rights arising under this ordinance.

On February 7, 1893, the common council of the city passed two ordinances applicable to North Clinton street, formerly known as the 'Holgate Pike,' and Ralston avenue, formerly known as the 'Brunersburg Road,' changing the grade of that part of each of said streets where they crossed the railway track to the level of the railway, and so changing the approaches as to cause them to descend to the level of the road; and further providing that the cost and expense of such improvements should be paid out of the general fund, and levied and assessed upon the general tax list upon all real and personal property in the corporation.

Plaintiff averred, in this connection, that the sole purpose of these ordinances was to cause the overhead bridges and the approaches thereto to be destroyed and removed, and the crossing of said highways reduced to a crossing of the same grade as the railway tracks; that, if the city is allowed to carry out its purpose, such crossings will be extremely dangerous to all persons having occasion to use the same, by the fact that the roads will approach the tracks at a steep, downward decline on both sides; that the railway track at these points is on a heavy grade, which renders it very difficult to control the speed of trains; and that the danger of a grade crossing will be vastly increased. Plaintiff further averred: That since the year 1856 its railway track had been crossed by said highways by overhead crossings, consisting of bridges about 18 feet in the clear above the level of the tracks. 'That said highways then, as now, crossed the railway track at points near together, to wit, about 196 feet, and converge so as to meet at a distance of 70 feet from the railway right of way. That the railway track at said crossings lies in a deep cut, about 11 or 12 feet below the natural surface of the ground, and is on a heavy down grade and curve; and, on one of said highways, buildings are so located as to almost, if not entirely, cut off the view of approaching trains from persons approaching said track from the southerly side of the same. That if said crossings are reduced to grade, as proposed by said ordinances, the approaches to said track will be down a steep inclined plane on both sides of said track, on both said highways, so that at said crossings the said highways will be cut to a depth of about 11 1/2 feet below the adjacent lands. That it will be almost, if not quite, impossible for heavily loaded teams to stop for trains when approaching said track; and that by reason of the deep cuts both of said railway and highways in which said crossings will be located, and of the curve and grade of said railway at said points, the sound of any signal and the sound and sight of approaching trains will be cut off, and said crossings will be excessively difficult, and dangerous to the lives of persons crossing plaintiff's track along said highways, and to the lives, limbs, and property of its passengers and patrons being carried on the trains of the plaintiff, on account of unavoidable accidents and collisions there happening, and that thereby there will be cast upon the plaintiff an additional burden and liability to its said passengers and the public. That the natural conformity of the lands at said crossing is such as to make overhead bridge crossings of said public highways over plaintiff's said track absolutely essential to the public safety.'

The answer admitted most of the allegations of the petition, and averred that notice was duly published of the proposed improvements in a newspaper of general circulation in the city of Defiance, and written notice was duly served upon the plaintiff, but that the plaintiff did not at any time file any claim for damages by reason of such improvements, whereby it has waived the same, and is barred from claiming such damages.

Upon a hearing upon pleadings and proofs in the court of common pleas, the petition was dismissed. Plaintiff appealed to the circuit court, and applied for an interlocutory injunction, which was granted, but was subsequently dissolved upon final hearing, and the petition again dismissed. 10 Ohio Cir. Ct. 27. The case was carried by writ of error to the supreme court of the state, and the judgment of the circuit court affirmed. 52 Ohio St. 262, 40 N. E. 89. Whereupon plaintiff sued out a writ of error from this court.

Alexander L. Smith and Henry Newbegin, for plaintiff in error.

W. H. Hubbard, for defendant in error.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court. 

Notes

Be it ordained, by the council of the city of Defiance, Ohio:

Section 1. That the Wabash, St. Luis and Pacific Railway Company is hereby authorized to erect new bridges over and across the track of the railway of said company where the same crosses the public streets in the Third ward of said city, known as the Brunersburg road and Holgate pike, provided said bridges shall be of good and substantial construction, placed in the center of said street, be eighteen feet wide roadway, with good and substantial sidewalk eight feet wide on each side of said bridges, with proper railings on each side of said walks, said bridges and sidewalks to be at all times kept in good order and repair by said company. And said railway company is hereby further authorized to construct each of said bridges of sufficient height to give a distance of twenty-one feet in the clear between the tops of the rail of said railway at its present grade and the bottom of the floor beams of said bridges, provided always that said company shall provide and construct good and sufficient approaches and grade to each of said bridges, and extend the same to sufficient distance to give a grade of not to exceed one and one-fourth inches to the foot, and to conform to the width of the present street, said grade to be made firm and solid, by either stone or gravel, at the option of said company, provided that if gravel be used, said city will permit it to be taken from their gravel bed without charge, and to construct and keep in constant repair good and proper approaches to said sidewalks, and brought to the proper level of the present walk by broad, safe steps where the grade would be too great for a safe incline; and all to be done to the approval of the city, and all to be kept in repair to the extent of said company's right of way at all times by said company.

Sec. 2. The entering upon the work of constructing said bridges by said company shall be taken as an acceptance of the terms thereof by said company, and shall be regarded as superseding any contract or agreement heretofore existing between said company and said city as to either of said bridges.

Sec. 3. This ordinance shall take effect and be in force from and after its passage and due publication.

Done at the council chamber in regular session this 20th day of December, 1887.

Attest: Jas. A. Kitchel, City Clerk.
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