author: Spear, J.

text:
    The State ex rel. v. The Judges of the Court of Common Pleas of Hamilton County.

      Common pleas court reverses judgment of probate court-.—And thereby has original jurisdiction in said case—Ground of reversal found by Supreme Court to be erroneous—Mandamus will not lie to Compel common pleas judges to rehear petition in error— Court procedure—Jurisdiction—Section 6438,- Revised Statutes.

    1. Where on a petition in error the court of common pleas ‘reverses the judgment of the probate court in appropriation proceedings brought under chapter 8, title 2, Revised Statutes, it is the duty of that court, by force of section 6438, Revised Statutes,-tó pro- '■ ceed.to hearing and trial as though it had original jurisdiction .- thereof.'

      2. Such judgment of reversal finally disposes of the judgment of the probate court, but is not, within the meaning of the statute, a final judgmént which may be reviewed on error. And although the ground of reversal is found by this court to be erroneous,, mandamus will not lie to compel the judges of the court of common pleas to again hear and pass upon the petition in error.
    (No. 8720
    Decided January 5, 1904.)
    Mandamus.
    By its petition the relator, The Covington & Cincinnati Bridge Company, makes known to the court that' on March 5, 1896, the relator commenced a proceeding in eminent domain in the probate court of Hamilton county against one George A. Magruder and others, and such further proceedings were had therein that a preliminary hearing was had and an order entered for the plaintiff, followed by a jury trial resulting in a verdict for damages and a judgment thereon which was paid into court. Error by the defendants to the common pleas of Hamilton resulted in a final judgment in that court dismissing the proceedings in eminent domain upon the ground that the plaintiff did not have the legal right to condemn as against the defendants. Said judgment being affirmed by the circuit court error was prosecuted to this court, where the judgment of the circuit court was reversed, the judgment of the court of common pleas vacated, and the cause remanded to that court for further proceedings in accordance with the opinion. The judgment of this court left the judgments of the probate court in full force and effect, and required the court of common pleas to consider and pass upon the petition in error as originally filed therein. But that court, over the objection of the relator herein, summoned a jury to assess damages and denied and still denies the application of the relator for a hearing upon the petition in error in that court. Relator is without adequate remedy at law, and prays that a writ of mandamus shall issue directed to the judges of said court of common pleas requiring them to set aside the summons for a jury, and to consider and determine, the issues presented by the petition in error originally filed in that court.
    Copy of the record of all the proceedings, the opinion of this court, and of its journal entry and mandate, accompany the petition as exhibits.
    The answer by the respondents takes issue with some of the statements of the petition as to the exact text and legal effect of the journal entry in the court of common pleas and the opinion and judgment of this court, but otherwise generally admits the allegations of the petition. It also avers that the court of common pleas, acting on the mandate from this court, held that the force and effect of the proceedings hereinbefore taken were to vacate the judgment of the probate court fixing the compensation and to remand the case to the common pleas for trial and final judgment as to compensation, and therefore overruled the application of the company for a hear- ( ing upon the petition in error, and ordered the drawing of a jury, excusing the jury, however, until further order. It is and at all times has been the purpose and desire of respondents to proceed according to the command of the mandate and opinion of this court, and they pray the judgment and direction of the court in the premises.
    Pertinent parts of the record necessary to a full understanding of the controversy, show that the court of common pleas in the appropriation case pending in that court on error, found and adjudged “that there was error in the judgment and rulings of the probate court in finding that the taking of the premises and interests of the plaintiffs in error in the premises set forth in the * * * petition was necessary, and thereupon ordering a jury to be impaneled to assess compensation, and in overruling the motion of plaintiffs in error to set aside the finding and order aforesaid; that it further erred in overruling the motion of plaintiffs in error, after hearing the testimony, to withdraw the case from the jury and to dismiss the * * * petition as to the said plaintiffs in error, and in overruling the motion of plaintiffs in error to set aside the verdict of. the jury, and for new trial. Whereupon it is ordered and adjudged that the proceedings and judgment of the probate court * * * be and the same are hereby reversed and set aside, and that the * * * Company is adjudged to pay the costs of plaintiff in error. And the court having further heard and considered the premises finds that there is on the part of said corporation no right nor necessity for the appropriation; * * * it is therefore ordered and adjudged that the * * * petitions herein be dismissed and that plaintiffs in error go hence without day.”
    Also that the journal entry of this court reversing the judgments of the circuit court and of the court of common pleas, ordered and adjudged “that .thejudgment of the court of common pleas be and the same is hereby reversed; and it is further ordered and adjudged that this cause be remanded to the court of common pleas .for further proceedings in accordance with opinion herein.”
    Also that the opinion shows that this court did neither affirm nor reverse the judgment of the probate court, and shows further that the case would be remanded to the court of common pleas for trial as provided by law. It (the opinion) does also state-that “the judgment of the common pleas court, in reversing the judgment of the probate court and dismissing the * * * petitions herein, and that of the.circuit court affirming the judgment of the common pleas court should be reversed.” The. syllabus; is to*the effect that “Where on a petition in error the ' court of common pleas reverses the judgment of the probate court in appropriation proceedings, it is made its duty by Revised Statutes, section 6438, to-retain the cause for trial and final judgment; and when, without a trial by jury as in the probate court,, the court proceeds at once to render final judgment,, the judgment .of the court of common pleas - will be-reversed.”

      Messrs. Maxwell & Ramsey, for the relator, cited, and commented upon the following authorities:

      Levin v. Hanley, W., 588; Ex parte Railroad Co., 5 Wall., 825; In re Sanford Fork, 160 U. S., 247; In re Potts, 166 U. S., 263; Johnson v. Glascock, 2 Ala., 519; Duffitt v. Crosier, 30 Kan., 150; Wells v. Littlefield, 62 Tex., 28; State ex rel. v. Smith, 69 Ohio St., 196; Kramer v. Railroad Co., 53 Ohio St., 436 McLean v. Nixon, 18 B. Mon., 768; Armstrong v. Grandin, 39 Ohio St., 368; Noonan v. Orton, 31 Wis., 265; Railway Co. v. Kernochan, 55 Ohio St., 306; Neil v. Neil, 38 Ohio St., 558; Railroad Co. v. Sullivant, 5 Ohio St., 276; Railway Co. v. Railway Co., 3 Circ. Dec., 566; 6 O. C. C., 521; Railroad Co. v. Cable Co., 68 Ohio St., 306; secs. 5127, 6420, 6421, 6438, 6707, 6708, 6710, 6726, 6742 Rev. Stat; 3 Curwen, p. 1820, sec.. 9; id., p. 1821, sec. 10.

      Mr. Judson Harmon; Mr. J. O. Harper ; Mr. Ghanning W, Richards; Messrs. Wilson & Wilson' and. -
      Messrs. Outealt & Foraker, for respondents, cited', and commented upon the following authorities:

      Neil v. Neil, 38 Ohio St., 558; Railway Co. v. Kernoehan, 55 Ohio St., 306; Bridge Co. v. Magruder, 63 Ohio St., 455; Railway Co. v. Bailey, 39 Ohio St.,. 170; Faucett v. Meeker, 31 Ohio St., 634; Wagner v. Railway Co., 38 Ohio St., 32; secs. 549, 6437, 6438, 6710, Rev. Stat.
   Spear, J.

The prayer of the petition is that a writ of mandamus shall issue directed to the judges of the-court of common pleas of Hamilton county, requiring them to set aside the summons for a jury, and to consider and determine the issues presented by the: petition in error originally filed in that court.

We are of opinion that the writ should be denied. It is to be awarded only where the act is specially enjoined as a duty resulting from an office, trust or-station, and is not to be issued to control discretion. Especially is it not to be awarded in the absence of a. showing of a clear right.

The power as well as duty lodged in the court of' common pleas, in passing on an error proceeding from the probate court in an appropriation case, is defined by section 6438, Revised Statutes, which provides that, “if the court of common pleas, upon the-hearing of the cause * * * reverse such judgment,, it shall retain the cause for trial and final judgment as in other cases.” The natural and we think necessary implication from this language is that the judgment of reversal is not a final judgment to which, error will lie. This for the reason that the party complaining has not exhausted his remedy in the-court which has .jurisdiction to try the cause to final judgment, the general policy of our statute, applying, to error proceedings to the court of common pleas being that a party may not prosecute error to orders or rulings which do not conclude the issue, but must, where that court has jurisdiction to try the cause to final issue and give full relief, exhaust his remedy there before prosecuting error to the higher court. A like provision is prescribed by section 6733, Revised Statutes, where error is successfully prosecuted to the judgment of a justice of the peace. Railway Co. v. Bailey, 39 Ohio St., 170, declares the principle and we think settles the question. The judgment of reversal by the common pleas of the judgment of the probate court not being a final judgment at follows necessarily that the effort to have it reviewed must be futile.

It is contended, however, that the action of this court in reversing the judgment of the court of common pleas, as expressed in the journal entry and mandate, completely extinguished the judgment of the court of common pleas and left the case in that court to be proceeded with as an error case. This ■does not follow. -It is true that this court orders and .adjudges “that the judgment of the court of common pleas be and the same is hereby reversed.” The judgment referred to, however, naturally and necessarily means the judgment which the party complaining had the right to ask to have reviewed, and that was the final judgment rendered by the court of common pleas, viz.: the judgment dismissing the petition. That this was the understanding of this court at the time is shown by the language which follows, viz.: “It is further ordered and adjudged that this cause be remanded to the court of common pleas for further - proceedings in accordance, with opinion herein.” Recurring to the opinion, it is shown that the cause is “remanded to the court of common pleas for trial as provided by law;” and the provision of law is found in the statute. Had this court intended to direct a re-hearing of the error case it would have said so. This understanding is further shown by the fact, evidenced by the opinion, that this court did not undertake to deal in any wise with the judgment of the probate court. It neither sought to affirm it or to reverse it. We need not now inquire the reason why. It is enough to state the fact. It was treated as a judgment reversed, and was-there left, the language of the syllabus being that where the court of. common pleas reverses the judgment of the probate court, the duty to “retain the cause for trial and final judgment” follows, and the error pointed out in this syllabus, and the only error, is the action of the court of common pleas in proceeding to render final judgment without trial. Other facts indicating the true intent of the entry in this court will be referred to further on. Some phases of the error case in this court may not be entirely clear, but taking the final entry here in connection with the opinion, including the syllabus, and construing the whole in the light of the statute, there can be no warrant for the claim that the case is now in the court of common pleas as an error proceeding.

It is true that the reasons given for and the grounds upon which the court- put its reversal of the judgment of the probate court were in part the same reasons and grounds upon which the final .judgment of dismissal was based. And this, probably, is the cause of the apparent confusion which has arisen. That is, the common pleas found that the probate court erred in finding that the taking of the premises was necessary, and it also found, on its own further hearing, that there is no right or necessity on the part of the-corporation for the appropriation, and hence dismissed the petition.. It is inferred by counsel from this that the judgment of reversal of this court was aimed at the findings. But it . ought to be plain that,, as a general proposition, the grounds on which a judgment of reversal is placed are not the subject of review. It is the judgment, when it is reviewable at all,, that may be the subject of reversal. In legal effect the common pleas judgment of reversal would have been just as conclusive had no ground been stated.. The judgment may be entirely sound and the grounds, upon which it is sought to be placed wholly erroneous.. But this view of the case becomes of less importance' when it is noted that the finding as to the preliminary , inquiry was not the sole ground of reversal by the common pleas. It was founded as well upon alleged error “in overruling the motion of plaintiffs in error to set aside the verdict of the jury, and for new trial.”' Among the grounds for new trial alleged in the motion are error in the admission and exclusion of testimony; in the charge to the jury, and that the verdict is against the weight of the evidence. The last ground afforded abundant reason, had there been none other, for the refusal of this court to review the judgment of the common pleas court in its reversal of the judgment of the probate court, and throws light also upon the understanding this court entertained of the purpose and effect of its entry reversing the judgment of the common pleas.

By a supplemental brief by the relator it is further insisted that the court of common pleas in its reversal of the probate court passed only upon jurisdictional questions, and that, after finding' against the corporation on these questions, the court could not assume: . jurisdiction for the purpose of adjudicating questions which arose upon the trial to the jury in the probate ■ court. The answer to . this is implied in what has preceded, but we may add that, while at first blush ■ this is a plausible proposition, with due respect we are clearly of opinion that it is not sound. Apparently it rests upon the assumption that the. proceeding in the probate court was' divided into- integral and distinct parts. It was not.- It was one •casa. The use of the term “jurisdictional,” in this connection, is at least misleading. All the parties having been brought into court by proper process, . and the subject-matter of the controversy being within the cognizance of the court by authority of the • statute, that court was clothed with complete juris- • diction of the whole controversy, and it was not deprived of jurisdiction at any stage of the procedure, nor could it be.- ■ Its judgment rendered therein upon ’ hearing, or hearing and trial, would be conclusive, • and, would finally settle the entire controversy unless carried higher. The question of the right to appropriate on the part of the corporation was a mixed • question of law and fact, and the right to a prelimi- ■ nary order would depend on the evidence. A finding ' by a higher court that the probate court had erred as to the admission or legal effect of evidence did not in any degree affect the jurisdiction of that court ■ or of the court of common pleas, and there would not be the slightest irregularity in the latter court, after reaching that result, going forward and considering the other assignments brought before it by the petition- in error. Indeed, its duty (conformably with the spirit of section 6709, Revised Statutes), would not be fully performed until it had done just that. ■The' question of jurisdiction was not involved; the question all the time was, had the corporation made-a case? So it results that the legal effect of the judgment entry of the common pleas is to establish that that court passed upon all the errors assigned.

The foregoing disposes also of the second proposition of the supplemental brief, viz.: that “when the common pleas found against the corporation on the jurisdictional questions, the procedure was controlled by the general provisions of the code, and not by section 6438.”- As already stated, there was no jurisdictional question involved in any sense that makes the matter of jurisdiction pertinent here. We have not overlooked the case of A. & O. R. R. Co. v. Sullirant, 5 Ohio St., 276, relied upon by counsel. It is there held that where, in an appropriation case, the-probate court has held that there had not been sufficient proof of organization in compliance with the-requirements of the law and dismissed the proceeding, the review of such a judgment might be had in the-Supreme Court. Certainly. The corporation might have taken its case to the common pleas by certiorari. It chose to bring it directly to this court And the court, having undoubted power to do so, entertained it, affirming the judgment. We fail to see how a ruling in a case brought directly to this court, challenging a final judgment of the probate court, in any wise-affects a question relating to a judgment of the common pleas, reversing the probate court, which judgment was in legal effect, as we have already found,, interlocutory only. The judgment in the Sullivant case was a final judgment of the probate court which was unaffected by section 6438; we are concerned with a judgment of the common pleas which was not. final, and which is controlled by the above section. We think the argument is in no manner advanced by the ruling in the Sullivant case. The same may be* said respecting the late case of Railway Co. v. Cable Co., 68 Ohio St., 306, also cited by counsel. The doctrine of these cases had pertinency as applied to the error case when in this court, but we fail to see its; application to the present proceeding in mandamus..

It must be apparent, if we are correct in the conclusions already stated, that no case is made for a. peremptory writ of mandamus. The record not only-fails to show a clear right to the writ on the part of the relator, but it clearly shows that no right whatever exists. And here we might, with propriety,, stop. But the record shows that, while the court of common pleas has given proper construction to the judgment of this court as the same bears upon the-right of the relator to demand another hearing on th.e petition in error to the judgment of the probate-court, it also shows that no hearing had been had in the common pleas after the cause was remanded with, respect to the right and necessity of the appropriation. We are of opinion that, by force of the statute, it was incumbent on that court to take up the casede novo, and proceed as though it possessed original jurisdiction. This would require a hearing on the-preliminary questions, and a jury trial to ascertain the amount of compensation and damages in case the-preliminary questions were determined in favor of the Company. But of course such hearing must precede-the trial.

Writ refused.

Bubket, C. J., Davis, Shauck, Price and Crew,, JJ., concur.


source: Caselaw Access Project

author: Btjrket, C. J.

license: Public Domain

text:
    The Lake Shore and Michigan Southern Railway Co. v. Liidtke, an Infant.

      .Pence required by section 3324, Revised Statutes—Does not require of. railroad companies to fence against persons—Proximate cause question of law and fact—Boy crawls through fence upon tracks —And is injured—Fence opening not proximate cause of injury.

    .1. The fence required by section 3324, Revised Statutes, is one sufficient to turn stock; and said section does not require railroad companies to fence against persons.
    .2. What was the proximate cause of an injury, is usually a mixed question of law and fact; but where the controlling facts are conceded or found, it is a question of law for the court.
    ■'3. A boy of six years of age having passed, with several of his ' companions, through an opening in a wire fence inclosing a railroad, sat down away from the tracks, in a place of safety, then suddenly arose and ran across one track to another, upon which a freight train was passing, and in attempting to grab or ■touch .a passing car, slipped and fell, and got his leg under a wheel, and it was crushed. Held: That the opening in the fence was not the proximate cause of the injury.
    (No. 8112
    Decided January 5, 1904.)
    Error to the Circuit Court of Erie county.
    The petition of the said Eddie Liidtke, plaintiff in the court of common pleas, is as follows, omitting the caption, signature and verification:
    “The plaintiff says that he is an infant under the •age of twenty-one years and brings this action by , his father, Edward Liidtke, his next friend.
    “The defendant is a railroad corporation organized •and operating a railroad running through the city of Sandusky, Erie county, Ohio, and having control and,, management of the same.
    “That the defendant’s railroad and right of way runs nearly east and west through the city of San-dusky, Erie county, Ohio; that the line of the defendant’s, lands, right of way and main railroad tracks runs by and is located in front of and near the south end of Clinton street in said city; that the defendant was by law required to construct and maintain a good and sufficient fence along the lines of its lands of its said right of way and said railroad track; that along the north line of the lands of said defendant and along the north side of said defendant’s road and right of way, in front of and near the south end of Clinton street in said city the defendant many years ago constructed or caused to be constructed a fence; that for one year and more prior to the sixteenth day of August, 1900, the defendant negligently permitted said fence to become and remain badly out of repair, and insufficient to such an extent that a section of said fence, the distance between two posts in front of and near the south end of Clinton street in said city was broken down, open and unobstructed, and persons had been accustomed for one year and more prior to the date above named to pass onto and from said defendant’s right of way and railroad tracks through said fence where the same was broken down, unobstructed, and out of repair as aforesaid.
    “That for one year and more prior to the date above named the defendant had knowledge that said fence was out of repair, in the manner aforesaid, and had knowledge that for more than one year prior to the date last named persons were accustomed to pass •onto and from said right of way and said railroad track through said fence where the same was insufficient and out of repair as aforesaid.
    “That on said sixteenth day of August, 1900, a train of the defendant consisting of engine and cars was negligently run over said right of way and said railroad track, at the place hereinbefore mentioned,, to-wit: in front of, and near the south end of Clinton street at a very dangerous and high rate of speed, to-wit: more than six miles per hour in violation of the ordinances of the city of Sandusky; that the bell was not rung nor the whistle blown on said engine at or near the south end of said Clinton street when said train was approaching the same, although the defendant, its servants and agents employed in the running of its said trains, knew and had known for more than one year prior to the sixteenth day of August; 1900, that said fence was badly out of repair as aforesaid, and that persons were accustomed to enter upon said railroad track and right of way through the' same, where the same was insufficient and out of repair as aforesaid, and that by reason thereof it was very dangerous to run said train on said track at,' said point at such a high rate of speed without blowing the whistle and ringing the bell. That the defendant negligently failed to have any watchman or other person at said point to look out for or give warning to persons, especially children, about to go upon said railroad, and negligently failed to have any contrivance at or near the point named to give the alarm or warning to persons in the vicinity of said track and about to go upon the same, of the approach of trains, although the south part of said Clinton street and vicinity was and is thickly settled and inhabited, and a great number of small children of tender years and immature judgment and experience reside there, all of which the defendant well knew and had known for more than one year prior to the date hereinbefore mentioned.
    “That on the sixteenth day of August, 1900, the plaintiff, a child of six years of age, wandered, strayed and went upon said railroad track when said train was passing over the same, through said defective and insufficient fence as aforesaid, and -was run over by said train, and one of his legs a short distance below the knee was cut off, and he was otherwise severely bruised and injured. That the injuries sustained by the plaintiff as aforesaid is due entirely to the negligence of the defendant as hereinbefore stated, and would not have happened were it not for the negligence of said defendant.
    “That the injury so caused, and sustained by the plaintiff, caused him to be confined to his bed for a long period of time, to suffer intense pain and to incur great expense for medical aid and attendance, and to undergo painful surgical operations; and that by reason of said injuries he will be forever crippled and disabled.
    “Wherefore plaintiff says he has sustained damages by reason of said injuries so caused by the defendant in the sum of twenty-five thousand dollars ($25,000), for which sum he asks judgment.”
    The answer of the railway company is as follows, omitting caption, signature and verification:
    “Defendant admits that it is a corporation duly organized and existing under the laws of the state of Ohio as in the petition alleged, and that its railroad passes through the city of Sandusky, Ohio; and that the south end of Clinton street is near the north line of its right of way.
    “It admits that a train consisting of an engine and cars passed over its railway upon the sixteenth of August, 1900, and that said Eddie Liidtke was injured upon said date.
    “And further answering denies each and every. allegation, statement and averment in said petition contained not herein expressly admitted to be true.

      “Second Defense. And further answering and by way of a second defense to petition of plaintiff filed herein, defendant says that said accident by which Eddie Liidtke was injured was brought about and caused by carelessness, negligence, default and want of care of said Eddie Liidtke, his parents, guardians and those having him in charge, and not by any fault, negligence, default or want of care upon the part of defendant, its servants, agents or employes.
    “Wherefore defendant prays that having fully answered it may go hence without day .and recover its costs herein.”
    The reply is, in legal effect, a general denial of the answer, except in so far as it admits some of the averments of the petition.
    The cause was tried upon the pleadings and evidence, and at the close of the plaintiff’s evidence, the jury having viewed the premises, the court, on motion of defendant below, arrested the cause from the jury, and rendered judgment in favor of the railway company.
    A motion for a new trial was made by the plaintiff, and overruled by the court, and proper exceptions saved. The circuit court reversed the judgment, and remanded the cause for a new trial.
    Thereupon the railway company filed its petition in •error in this court, seeking to reverse the judgment of the circuit court, and for an affirmance of the court of common pleas.

      Mr. Geo. E. Reiter; Mr. George 0. Greene and Mr. Frank J. Jerome, for plaintiff in error, cited and commented upon the following authorities:

      Steele v. Railway Co., 4 Ohio Dec., 350; Bishop v. Railway Co., 14 R. I., 314; Hughes v. Railway Co., 66 Mo., 325; Overholt v. Veiths, 93 Mo., 422; Wabash Railroad Co. v. Norway, 4 Circ. Dec., 674; Morrissey v. Railroad Co., 126 Mass., 380; Patterson’s Railway Accident Law; 4 Am. & Eng. R. R. Cas., 572; Nolan v. Railroad Co., 53 Conn., 461; Penn. Co. v. Meyers, 136 Ind., 265; Wabash Railroad Co. v. Jones, 163 Ill., 174; Cincinnati, H. & I. Railroad Co. v. Butler, 103 Ind., 31; Railway Co. v. Brannagan, 75 Ind., 490; McAllister v. Railway Co., 19 Eng. & Am. R. R. Cas., 108; Thompson on Neg., 448; Cooley on Torts, 660; Rodgers v. Lees, 140 Pa. St., 475; Gillespie v. McGowan, 100 Pa. St., 149; Hydraulic Works Co. v. Orr, 83 Pa. St., 332; Rabidon v. Railroad, 115 Mich., 394; Marcott v. Railroad Co., 49 Mich., 99; Maynard v. Railroad, 115 Mass., 459; Railway Co. v. Methven, 21 Ohio St., 586; Railway Co. v. Wood, 47 Ohio St., 436; Pierce on Railroads, 441; 16 A.m. & Eng. Ency. Law, 464; Railway Co. v. Staley, 41 Ohio St., 118; Billman v. Railway Co., 76 Ind., 166; Addison on Torts, sec. 12; Beauchamp v. Saginaw Miming Co., 50 Mich., 163; Adams v. Young, 44 Ohio St., 80; Hoag v. Railway Co., 85 Pa. St., 293; West Mahanoy Tp. v. Watson, 116 Pa. St., 344; West Mahanoy Tp. v. Watson, 112 Pa. St., 574; Clark v. Chambers, 7 C. L. J., 11; Thomas v. Winchester, 6 N. Y., 397; Griggs v. Fleckenstein, 14 Minn., 81; Weick v. Lander, 75 Ill., 96; Powell v. Devney, 3 Cush., 300; McDonald v. Snelling, 14 Allen, 290; Lane v. Atlantic Works, 111 Mass., 136; Metallic Comp. Cast. Co. v. Railway Co., 109 Mass., 277; Fent v. Railway Co., 59 Ill., 349; 118 Mass., 251; 2 Thompson on Neg., 1083; Pollett v. Long, 56 N. Y., 200; Wasmer v. Railway Co., 80 N. Y., 212.

      Mr. E. B. King and Mr. John F. MoCrystal, for defendant in error, cited and commented upon the following authorities i

      Railroad Co. v. Stephenson, 24 Ohio St., 48; Railroad Co. v. McConnell, 26 Ohio St., 57; Railroad Co. v. Mackey, 53 Ohio St., 370; Rolling Mill Co. v. Corrigan, 46 Ohio St., 283; Thompson on Neg., 1042, 1181; Railroad Co. v. Gladmon, 15 Wall., 408; Dublin Oil Co. v. Jarrard, 40 S. W. Rep., 531; 91 Tex., 289; Hayes v. Railroad, 111 U. S. 228; Eaton v. Railroad, 129 Mass., 364; Barnes v. Ward, 9 C. B., 392; Railroad Co. v. Kellogg, 94 U. S., 469; Daniels v. Railroad Co., L. R. 3 C. P., 216 (approved by Exchequer Chamber, L. R. 3 C. P., 591, and by House of Lords, L. R. 5 H. L., 45); Williams v. Railway Co., L. R. 9 Ex., 157; Railroad Co. v. Stout, 17 Wall., 657; Randall v. Railroad Co., 109 U. S., 478; Railroad Co. v. McDonald, 152 U. S., 262; Linch v. Nurdin, 1 Q. B., 29; Keffe v. Railway, 21 Minn., 207; Cooley on Torts, ch. 10, p. 303; Powers v. Harlow, 53 Mich., 507; Keyser v. Railroad, 56 Mich., 559; Marcott v. Railroad, 47 Mich., 9; s. c., 49 Mich., 99; Singleton v. Railroad, 7 C. B. N. S., 287; Nickolson v. Railroad, 80 Minn., 508; 18 Am. & Eng. Railroad Cases, 682; Kurt v. Railway, 39 Minn., 485; Greeley v. Railway, 33 Minn., 136; Rosse v. Railroad Co., 68 Minn., 216; Fitzgerald v. Railroad, 29 Minn., 336; Schmidt v. Railroad, 23 Wis., 186; Stuettgen v. Railroad, 80 Wis., 498; Isabel v. Railroad, 60 Mo., 475; secs. 3324, 3326, Rev. Stat.
   Btjrket, C. J.

Counsel for defendant in error makes the following statement of facts in his brief:

“facts.
“The testimony shows that the Lake Shore and Michigan Southern Railway Co. runs through the city of Sandusky in a substantially east and west direction ; that about 400 feet east of Camp street, is the Lake Shore and Michigan Southern, passenger sta-' tion, and its freight depot is some distance farther east; that Camp street, running north and south; crosses the Lake Shore and Michigan Southern Railway tracks; that no other street does cross the tracks, west of Camp street, until Mills street is reached, which is 1,985 feet west of Camp street.
“Between Camp street and Mills street are the streets of, in the order named from east to west, Pearl, Clinton, Harrison and Putnam. None of these cross the railway, company’s right of - way. Clinton street,, running north and south, is sixty-six feet wide and runs to. the north line of the railway company’s right of way. In the vicinity of Clinton street, and in this section there are a good many houses and a great many people live there. . It is quite thickly settled.
“The plaintiff, at the time of his injury, lived with his parents and brothers and sisters, at number 903 Clinton street, which was one square and the second house in the second square from the railroad. The plaintiff’s father and older brother were common, laborers. Ida, his sister, was thirteen years of age at the time of the accident. Otto, his brother, was eight and Eddie, the plaintiff, was six on the eleventh day of April, 1900. A neighbor had been injured while working and Mrs. Liidtke, after eating breakfast and leaving the children at the table, went over to find out what was the matter. This was about 8:00 o’clock, sun time. The mother left these children at the breakfast table when she went away. She told them to stay in the house. While she was gone, Ida and her brother Otto, went out into Clinton street and. up towards the railroad to play with some children there, and Eddie came out afterwards and joined them.
“While they were up there, some of the other children proposed to go over across the track, where there was a coal chute, then known as the Lake Erie and Western coal chute. The children had a basket, and the older ones, including this brother and sister, went across the tracks leaving Eddie playing with some small children and a little express wagon, north of the right of way. There had been and was a fence along that line of the right .of way across Clinton street, and extending all the way from Camp street to Mills street, but near the center of Clinton street this fence had been broken down or cut away. It was made of wires running horizontally and perpendicularly and these had been cut near one of the fence posts and swung or bent back, leaving an opening from the ground up to the top wire, which was not connected with the others and was left on the posts. This opening was about six feet in width and about the same height above the bottom of a path worn in the street This opening had been used by all who had occasion to cross the track and especially by railroad employes, for a long time.
“The children picked up coal on the ground and filled a small basket and carried it across the track and put it in the express wagon. Eddie remained' with the other little children, playing in the street Eddie did not cross the railroad track with his older brother and sister, but after they had come back and were playing about, Eddie ran through the opening in the fence and up near the track, and the sister ran after him.
, “They stopped when they came to the embankment, which is several feet high at this point, and sat down, so the witness Ida testifies on pages 40 and 41, when Eddie jumped up and ran up to the track, crossing one track to the other track. A freight train was going west, which attracted his attention and he evidently ran up and tried to grab a car or touch it as it passssd, when in some way, he slipped or fell and got his leg under the wheel.
.“Here, let me say there is no evidence to sustain the statement in brief for the plaintiff in error, that Eddie, the defendant in error, went there to pick up coal; on the contrary, the evidence is that his older brother and sister went together and left him in the house, but that he followed them out, but he remained on the north side of the track, that is, the side towards; his home, while Ida and Otto went across the track and picked up, not several baskets, but one, and brought it across and set it in the express wagon. It was a basket perhaps twelve inches long and six or eight inches wide, and the coal they got was loose coal lying on the ground, a common and usual thing, and which does not . warrant the heated statements that Eddie was out there stealing coal. It was coal that any one who saw might pick up and carry away and nobody objected to it. If the children of these poor people did not get it, the railroad employes did, or their children, and no one objected to their picking up this coal. ~
“Again, in plaintiff’s brief is the statement that the fence was admitted to be a suitable one and the only defect was a hole which the railway company had not repaired. It is claimed by us that the fence where maintained and kept up, was suitable, but it was not suitable at the place where this opening was, which was not a small hole in the fence, but an opening that permitted men of ordinary height to travel through backwards and forwards, without any difficulty; an ■opening. through which, if it had been necessary, a team of horses and wagon could have been driven without any difficulty whatever. No negligence is claimed for the manner in which the train was run.”

Much of. this statement of facts is immaterial, but the whole is here given, so that defendant in error may have the full benefit of. all he claims. The record does not disclose that .any fact was proved favor.able to the defendant in error, which is not included in this statement of facts by his able counsel, and therefore this statement, as to. him, must be taken as. the -conceded facts of his case.

Upon the petition, and this statement of conceded facts, the question as to the proper construction of ¡section 3324,- Revised Statutes, arises, and the further question as to- whether the defect in the fence, was the -direct or proximate cause of the injury to the boy.

So much of said sction 3324 as is applicable here, neads as follows: “A company or person having control or management of a railroad shall construct, or ■cause to be constructed, and maintain in good repair -on each side of such road, along the line of the lands ■of the company owning or operating the same, a fence ¡sufficient.to turn stock; and Avhen such fence is constructed out of barbed wire, or separate lateral ¡strands not connected by interwoven wire, or cross ■perpendicular Avire not more than fifteen inches ¡apart, there shall be securely fastened to the posts, .at the top of the same, at right angles thereto, at least -one board, not less than one and one-eighth inches ■thick and-five inches wide, and extending the entire length thereof; and before operating such road shall ■cause to be maintained at every point where any public road, street, lane or highway used by the. public, -crosses such railroad, safe and sufficient crossings, and on each side of such crossings cattle guards sufficient to prevent domestic animals from going upon such railroad; and such company or person shall be liable tor all damages sustained in person or property in any manner by reason of the want or insufficiency of any such fence, crossing or cattle guard, or any neglect or carelessness in the construction, thereof, or in keeping the same in repair.”

The burden, duty, or obligation imposed by this statute upon railroad companies is, to construct and maintain in good repair, on each side of the railroad along the lines thereof, “a. fence sufficient to turn stock,” and to cause to be maintained at public road, street, lane, or highway crossings, “safe and sufficient crossings,” and on each side of such crossings, “cattle-guards sufficient to prevent domestic animals from .going upon such railroad.”

It will be noticed that the fence must be sufficient to turn stock, and the cattle-guards sufficient to prevent ■domestic animals from going upon the railroad, but that the crossings at highways must be simply “safe and sufficient,” that is, safe and sufficient without limitation, that is for all purposes, persons, as well as property. The fences and cattle-guards are therefore only for the purpose of keeping stock and domestic animals off the railroad, and the “safe and sufficient crossing” at highways, etc., is for the purpose of affording safe passage for persons and property across the railroad. It is therefore clear that the fences and cattle-guards are not for the purpose of keeping persons off the railroad, but only stock and domestic animals. This is made clear by both the words and purpose of the statute. Stock and domestic animals only are mentioned, and these words do not include persons. If the general assembly had intended to cause-railroads to fence against persons, it would have used, words clearly showing that intent. Another reason, why this construction should prevail is, that it is impracticable, if not substantially impossible, for a railroad company to fence against persons. While a fence, pig-tight, horse-high, and bull-strong, as put by a western judge, might impede the progress of some' persons, others, as for instance young men, boys, and even some girls, would scale such a fence with the nimbleness of a squirrel. The general assembly has-not required the impossible from railroad companies,, nor that they should fence against the aged and children, and not against the youthful and athletic. In Railroad Co. v. Schultz, 43 Ohio St., 278, this court-held that this section should receive a reasonable construction ; and it would be a strained and unreasonable' construction to hold that the words stock and domestic animals, include persons. Again, railroad companies, as to passengers and property in their care for' transportation, are required to exercise the greatest care, but as to other persons only ordinary care. To-construct and maintain fences so as to keep persons-off the railroad, would not be ordinary, but extraordinary care, in effect insurance against injury; and as-the general assembly has not required such extraordinary care in other matters, it cannot be presumed that it intended to require it in this section, without plain and explicit words showing such intent.

We therefore conclude that the railroad company was under no obligation to fence against persons, and that it was guilty of no negligence, of which this little boy could complain, in failing to keep its fence in repair at the head of Clinton street. Such failure did not in any manner violate any of his legal rights, and. where no legal rights are infringed there can be no remedy in damages. Railroad Co. v. Bingham, 29 Ohio St., 364, 369; Letts v. Kessler, 54 Ohio St., 73, 85.

But our attention is called, by counsel for defendant in error, to the following part of the section, as creating a liability on part of the company: “And such company or person shall be liable for all damages sustained in person or property in any manner by reason •of the want or insufficiency of any such fence, crossing or cattle-guard, or any neglect or carelessness in fhe' construction thereof, or in keeping the same in repair.”

This part of the section provides a remedy for the violation of the duty or obligation imposed in the forepart- of the section, and can be no broader than the •duty or obligation there imposed; and as the duty or •obligation to fence, was not to fence against persons, but against stock, the remedy in damages must be for a breach of duty or obligation arising from stock getting onto the railroad by reason of a defective fence. ’The crossing at a highway may be defective or inisufficient, and thereby damages to person or property, •or both, may be sustained, and for such the railroad company would be liable. A cattle-guard may be defective, and domestic animals may, by reason of such •defect, get upon the railroad and cause damage to person or property, or both, and for such the company would be liable. So a fence may be defective, and by reason thereof stock may get upon the railroad and cause damage to person or property, or both, and for such the railroad company would be liable; but if a person uninvited goes upon a railroad through or over •a defective fence or cattle-guard, and suffers injury to person or property while so on the railroad, the defect in the fence or cattle-guard is no ground for recovery of damages. If he can recover at all, his recovery must be based upon what occurs after he gets upon the railroad, and not upon the defect in the fence, or cattle-guard, through or over which he reached the railroad.

The case of Nickolson v. Railroad, 80 Minn., 508; s. c., 18 American and English Railroad Casés, 682; and other like Minnesota cases, are cited and relied upon by counsel for defendant in error, as showing-that the want of a fence, or a defective one, may be shown to prove negligence on part of the company in an action for damages for killing or injuring a trespassing child. But all those cases are founded upon a statute of that state which is much broader than ours, and therefore they throw no light upon the construction of our statute.

The case of Hayes v. Railroad Company, 111 U. S., 228, is also cited and relied upon; but the obligation, imposed upon the company in that case was to build a suitable wall, fence or other sufficient work as would prevent animals from straying upon the tracks, and secure persons and property from damage. Persons being included in the ordinance, so broadened the obligation as to warrant the ruling there made.

In the case Of Railroad Company v. McDonald, 152 U. S., 262, also cited and relied upon by counsel for defendant in error, the railroad company owned and operated a coal mine a short distance from its station, and deposited the slack between the mine and the station, and a path ran along the edge of the slack leading to and from the mine. The slack caught fire and burned underneath, emitting no smoke or other evidence of the fire, there being ashes and a crust over the fire.

A statute of the state required such slack piles to be fenced in such manner as to prevent loose cattle and horses from having access to such slack piles. A boy of twelve years, and his mother, arrived at the station, and with her permission he visited the coal mine in company with another boy, and becoming frightened, started to run along said path to where his mother was, and meeting another person in this narrow path, stepped upon the ashes and crust covering, the fire underneath, broke through, and was badly burned and injured. He brought an action against the railroad company for damages, .and proved the above facts, and was allowed to prove that the company failed to fence said pile of slack as required by statute. The plaintiff below recovered a judgment, and the railroad company took the case on error to the Supreme Court, where the judgment was affirmed. The judgment of affirmance is based upon the doctrine of dangerous and unprotected pits near a traveled way, and Railroad Company v. Stout, 17 Wall., 657, which was a turn-table case, is cited and approved as applicable to the case. True the court say in the opinion: “Primarily that statute was intended for the protection of cattle and horses. But it was not for that reason, wholly inapplicable to the present case upon the issue of negligence.” It is negligence to have an unprotected, unfenced, dangerous pit near a traveled path, without a statute requiring it to be fenced, and it is no less negligent where there is a statute requiring such fencing. The court therefore well said that the statute was not wholly inapplicable upon the issue as to negligence. But that is far from holding that the failure to fence the pile of slack, irrespective of its surroundings, was in and of itself actionable negligence. The failure to fence in that case was properly received as an element aiding the proof of negligence in retaining a dangerous pit in an unprotected condition near a traveled path, and not for the purpose of establishing negligence by the mere proof of a failure to fence. In the case at bar no negligence is claimed, other than the defect in the fence, and that defect could not aid the proof of other negligence when no such other negligence existed. The two cases are therefore not in conflict, but perfectly consistent, and the slack pile case is not an authority, sustaining the doctrine that railroad companies are required to fence against persons.

There is another reason why the common pleas was right, and the circuit court wrong. The defect in the fence was not the proximate cause of the injury. 'The little boy passed through the fence upon the railroad grounds to an embankment several feet high and north of all the railroad tracks and sat down, being then with his companions in a place of safety. A freight train was going west which attracted his attention, when he jumped up and ran across one track to the next one south, and ran up and tried to grab or touch a car as it passed, when he slipped or fell, and .got his leg under the wheel. The injury was caused directly and proximately by his slipping and falling, .and was the result of an inevitable accident. Thé injury was not even remotely caused by the defect in the fence, else why were not his companions also injured, they having passed through the same defective fence?.

But it is urged that the question as to what was the proximate cause was one for the jury, and not the •court The question as to proximate cause is usually a mixed question of law and fact, and is for the jury under proper instructions. But when the facts are •conceded, as in this case, it becomes a pure question of law for the court. In this regard the question of proximate cause is not different from the question of negligence, or contributory negligence, in all of which, when the facts are conceded or found, the question.is one of law. The province of the jury is to find the facts, but the facts being found or conceded, it is the duty of the court to declare the law applicable to such facts. It is under this rule that the sufficiency of the facts in a pleading are tested by a demurrer. Minnear v. Holloway, 56 Ohio St., 148; Penn. Co. v. Rathgeb, 32 Ohio St., 63; Kistner v. Indianapolis, 100 Ind., 210; Henry v. The St. L., K. C. & N. Ry. Co., 76 Mo., 293.

As the railroad company was under no obligation or duty to fence its road against persons, and as the ■defect in the fence was not the proximate cause of the injury to the little boy, he had no cause of action .against the company, and the errors, if any, in the admission or exclusion of evidence, were immaterial .and not prejudicial.

Applying the law as to fences and proximate cause, .as above laid down, to the petition, it fails to state a cause of action against the railroad company, and taking the defective petition in connection with the facts conceded to have been proved on the trial, and in the absence of a motion to amend, the court of common pleas was clearly right in directing a verdict for the defendant below. The judgment of the circuit court will be reversed, and that of the common pleas affirmed.

Judgment reversed.

Davis, Shauck, Price and Crew, JJ., concur.


author: Crew, J.

text:
    The Hamilton, Glendale & Cincinnati Traction Co. v. The Hamilton & Lindenwald Electric Transit Co.

      City council grants right of way through street to railway company— Acceptance by grantee—Subsequent grant by cduncil to second railway company—Over same right of way—Second grant of city does not confer right for grantee to enter upon right of wayy when—Conflict of rights of way between first and second grantees—Second grantee restrained by injunction, when.

    When a city council has, by ordinance, legally granted to one street railway company the right to construct its railway and lay its track on and over a particular part of a designated street within said city, and such company has duly accepted said grant and entered upon and taken possession of the right of way so specifically granted, a subsequent grant by said city council, or its successor in office, the board of control, of the same right of way, or a substantial part thereof, to another street railway company for like purpose will not of itself confer upon the second grantee the right to enter upon and take possession of the route or right of way so granted, where such entry and possession by 'it will materially and injuriously interfere with, interrupt and abridge the first grantee’s use and enjoyment of the said right of way. And where said second grantee, threatens, and is about to take possession of said route and right of way under and by virtue of its said grant, without the consent and against the will of said first grantee, and without having appropriated the right so to do, it will be restrained from so doing by injunction.
    (No. 8053
    Decided January 19, 1904.)
    ' Error to the Circuit Court of Butler county.
    On the fourth day of August, 1891, the city council of Hamilton, Ohio, by ordinance duly passed, granted to The Hamilton & Lindenwald Electric Transit Co., defendant in error, the right to construct, operate and maintain an electric street railroad in, upon and along East avenue, from Grand boulevard to John street, and beyond, within said city, and in pursuance to said grant the city authorities located said street railroad in the central portion of said East avenue.
    In accordance with said grant and location the defendant in error immediately thereafter constructed in said central portion of said East avenue an electric street railroad with a gauge of four feet eight and one-half inches, and in accordance with the terms and conditions of said ordinance it has ever since been, and is now engaged in operating and maintaining its said street railroad in, upon and along the central portion of said avenue.
    The franchise so granted to said street railroad was for a term of twenty-five years and the same is still in full force, effect and operation.
    On the twenty-second day of September, 1901, the board of control of the city of Hamilton, Ohio, which board was and is the successor of said city council, passed an ordinance granting to the plaintiff in error, The Hamilton, Glendale & Cincinnati Traction Co., the right to construct, maintain and operate a street railroad in, upon and along said East avenue, from Grand boulevard to John street, and by the terms and conditions of said last named ordinance said Hamilton, Glendale & Cincinnati Traction Co. was to construct its tracks with a gauge of five feet two and one-half inches, said tracks to be laid as near the center of said East avenue as practicable, the rails of its said track being placed in juxtaposition to the rails of the track of defendant in error, theretofore laid and constructed in said avenue; that is, the plaintiff in error was to place the east rail of its track along the right of way and roadbed and across and over the ties of defendant in error’s road eight inches west of the east rail of said plaintiff in error’s track and to place the west rail of said plaintiff in error’s track fourteen inches w.est of the west rail of said defendant in error’s track; and to make excavation under the rails, and between the ties on said defendant in error’s roadbed for the purpose of constructing its said road by putting its ties therein and its rails thereon. The-defendant in error, The Hamilton & Lindenwald Electric Transit Co., brought suit in the court of common pleas of Butler county, Ohio, against the plaintiff in error, The Hamilton, Glendale & Cincinnati Traction Co., to enjoin it from constructing its said road in the manner above described, alleging and claiming in its petition that such construction would be in violation of its (plaintiff’s) franchises and vested rights in and to said portion of East avenue then and theretofore used and occupied by it for the purposes of its street railway, under grant from the city council of said city of Hamilton. And that such construction would interfere with the operation and maintenance of its said street railroad in, upon and along said portion of said East avenue, and would destroy its property rights and franchises and deprive it of its right to use the same and its rights under its grant from the city of Hamilton. The case was heard in the common pleas court and was afterward appealed to the circuit court of Butler county, Ohio.
    On the trial in the circuit court the following judgment and decree was rendered by that court: “It is therefore considered, adjudged and decreed by the court that the defendant be and it is hereby perpetually 'enjoined from occupying, constructing, laying or maintaining a street railroad in said East avenue from Grand boulevard to John street under the grant of the tenth day of August, 1901, made by the board of control of the said city of Hamilton, unless the defendant acquires the right by appropriation; and this order is made without prejudice, if the defendant has the right so to do; and it is further ordered that the plaintiff recover his costs herein, taxed at $--; to all of which the defendant excepts.”
    The plaintiff in error seeks, by the present proceeding, to obtain a reversal of this judgment and decree of the circuit court.

      Messrs. Burch & Johnson and Mr. John W. Warrington, for plaintiff in error. -

      Messrs. Shepherd & Shaffer, for defendant in error.
   Crew, J.

On the trial of this case in the circuit court, the court on the application of the defendant, The Hamilton, Glendale and Cincinnati Traction Company, made and stated its finding of facts separately from its conclusions of law. It found and stated as its conclusions of fact: , “That the plaintiff owns and is operating a street railroad in the city of Hamilton under grant duly made to it, over and along East avenue in said city of Hamilton from Grand boulevard to John street and northwardly beyond, and that said street railroad is constructed in, on and along, the center of said East avenue, and that the same has been in operation for more than ten years last past; that the construction of defendant’s road by straddling the west rail of the tracks of the plaintiff’s road and by placing their ties between and in and upon the roadbed of the said plaintiff’s road as now. constructed, would be an interference with the franchises and vested rights of said plaintiff company. This finding is without prejudice to the defendant appropriating the rights, if authorized by law so to do.”

And as its conclusions of law: “The court finds as a conclusion of law that the defendant has no right to interfere with the franchises or vested, rights of the Hamilton & Lindenwald Electric Transit Co. by placing its tracks as it is proposed and intended to be done, or straddle the tracks of the plaintiff company which now occupies the center of said East avenue from Grand boulevard to John street.”

The following diagram and map will show the proposed plan of construction of the track and road of plaintiff in error, in and along said East avenue, and will serve to illustrate the relative position and location of the same, if constructed, to the road and tracks of the defendant in error.

It is conceded in this case by counsel for plaintiff in error, that the finding of facts as made by the circuit court was not only warranted by the evidence, but that “the facts so found are absolutely true”; but it is claimed and argued by them that the court’s deduction therefrom and its application of the law to the facts so found is “logically and legally untrue”; for the reason as they insist that the Hamilton & Lindenwald Electric Transit Go. had no private property in its roadbed or right of way and that it had not, nor could it have any franchise, or vested interest or right in any other than its physical, tangible property, such as its tracks, ties and other structures placed upon and over its roadbed for the purpose of enabling it to maintain and operate its street railway thereon, and that inasmuch as no part of said property would be taken or used in the construction of plaintiff in error’s railway, in the manner proposed, that plaintiff in error under its grant from the board of control of the city of Hamilton, of August 10, 1901, has the right to enter upon, occupy and use the roadbed of defendant in error, in the construction and operation of its proposed road, without legally appropriating such right, and without making or paying any compensation therefor to said, The Hamilton & Lindenwáld Electric Transit Co. Whether it may rightfully do this is the question here presented for determination. The power to regulate and control the public streets and avenues in the municipalities of this state, is by statute lodged in the municipal authorities, and under the general statutory powers conferred upon such authorities in each municipality, to control the use of the streets within its corporate limits and to prescribe the terms and conditions upon which they may be used and occupied by street railways, it can not be doubted that the local authorities of each municipality may, in the exercise of such power, grant to a street railway company the use of its streets for railway purposes, and may designate and prescribe the particular streets and avenues that shall be subject to such use, and the particular part of each, upon which the tracks of such company shall be constructed and laid. By the ordinance of August 4,1891,, the city of Hamilton granted to the Hamilton & Lindenwald Transit Co. a certain franchise, whereby said company was authorized to construct its street railway in, over and upon certain of the streets and avenues of said city of Hamilton, among which was East avenue in said city; and by the terms and conditions of said grant said railway was to be located and constructed as near the center of said East avenue-as practicable. This grant was accepted by the Hamilton & Lindenwald Transit Co., and its street railway was constructed in conformity with the terms and conditions of said grant, and as found by the circuit court for more than ten years said street railway has been, and it still is operated and maintained by said company over and along said East avenue. Whether then,. any .vested or exclusive property rights were acquired! by the Hamilton & Lindenwald Transit Co., by virtue of said grant and its subsequent possession taken under it, in or to that part of East avenue actually occupied and used by it in the construction and operation of its said street railway, is the primary-question in this case. That a city council may not by express grant give to a street railway company the absolute and exclusive right to occupy and use the-streets of the city for street railway purposes, thus, creating a monopoly, would seem now in this state-to be well settled, and that the city council of the city of Hamilton did not by the making of said grant to* the Hamilton & Lindenwald Transit Co. exhaust its; powers, or deprive itself or its successors of the right,, to make additional grants to other street railway companies for like purposes in and to the unoccupied portions of the same street or avenue, would seem to be abundantly sustained by the authorities. But it is,, we think, equally well settled that where the right is; given by ordinance to a street railway company to occupy and use particular parts of certain streets, and the grant so made is accepted and acted upon by the grantee, that the city authorities are thereafter, so-long as said grant remains in full force, unforfeited and unrevoked, without right or authority to grant to another street railway company for like use, the right to have and occupy without appropriation or the making of compensation therefor to the first grantee, precisely the same ground, or right of way, first granted. To permit this would be to sanction and allow the impairment of the obligation of an existing contract by subsequent municipal legislation or grant. This may not rightfully be done. Cooley’s Const. Lim., 383; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S., 650, 672; City Railway Co. v. Citizens Railroad Co., 166 U. S., 557; Detroit v. Detroit Citizens St. Ry. Co., 181 U. S., 368; Canal Co. v. Railroad Co., 1 Gill and Johns., 1; The State ex rel., etc., v. Gas Light & Coke Co., 18 Ohio St., 262, 292; The Brooklyn Central Railroad Co. v. The Brooklyn City Railroad Co., 32 Barb., 358.

While it is undoubtedly true that a street railway •company under a grant authorizing it to occupy and use certain streets for the purpose of constructing, operating and maintaining thereon its street railway, acquires no fee in the soil upon which its roadbed is ■constructed and its ties and tracks are laid, it nevertheless does acquire therein a franchise and easement, which becomes and is its private property, and it has the right, during the life of the grant, to the possession and enjoyment of that franchise and easement without interruption or obstruction from any other company, until such time at least, as it may voluntarily surrender the same, or be legally divested thereof by an authorized appropriation and the payment of full compensation therefor, as required by the constitution and laws of the state of Ohio. The right which the grantee acquires by such grant is more than a mere license; it is a vested property right, in the nature of a franchise or easement in and to the particular portion of the street designated in the grant itself; and such grant carries with it the right of exclusive occupancy and user of that portion of the street, for the purposes for which it is granted, in so far as such exclusive occupancy and user are consistent with the welfare and convenience of the general public; and where, as in this case, there are conflicting claims asserted by rival companies, each claiming the same location under grant from the city authorities, and for the same character of use, such claims, ■even were both grants authorized, should be settled and determined by applying the rule that the first of ¡said grantees to rightfully occupy the street, has the ¡superior and better claim of right thereto. Judge Elliott, in discussing this question in his valuable work on Roads and Streets, at section 750, says: “If the company which secures the first grant actually occupies the streets it is authorized to use, then there is much reason for affirming that its right to the part of the street actually occupied and used is permanent and exclusive. By actually taking possession of the street and using it for the accommodation of the public, the company first in point of time does such acts as vests its rights.” The rule as thus laid down by Judge Elliott is not in conflict with the spirit and policy of the law which forbids municipal corporations from creating monopolies by favoring one corporation to the exclusion of another. As said by the court in the case of The Indianapolis Cable St. Ry. Co. v. The Citizens St. Ry. Co., 127 Ind., 388: “Many things which are lawful are from their nature and of necessity monopolies. * * * As a street railway company has no legal right to lay its track upon the streets of a city without the permission of the common council, if the city should grant such right to one company and refuse to grant it to another, the company to which the right was granted would have a monopoly, until such time as the common council should grant a similar right to some other person or company. So if the common council should grant to a street railroad company the right to lay its track on certain streets which were too narrow to admit of being occupied by other street railroad tracks, such company would have a monopoly of such streets. It is plain, therefore, that while monopolies, as a general rule, are unlawful, there are many exceptions to the rule. The rule applies only to such things as are of common right and is never to be applied to such things as are in their nature a monopoly.” Again, it is said in Elliott on Roads and Streets, section 746: “To deny the power of the legislature to make such a grant would lead to the unwarranted conclusion that in no case can the legislature grant the right to lay or operate a street railroád in a road or street, for if the power to make such a grant be conceded, it necessarily and unavoidably results that the occupancy of the part of the road or street is exclusive, as two railroads can not occupy the same space. But it does not follow from this that a monopoly is created, for other parts of the road or Street may be granted to competing lines. * * * The effect of a grant to use a designated part of a highway is to license the company first in point of time to occupy and use the designated space, but it does not follow from this that the statute creates a monopoly since others may occupy other parts of the same highway.”

The grant from the city authorities of the city of Hamilton to the Hamilton & Lindenwald Electric Transit Co., being then a valid grant, whatever the nature and extent of the right and interest acquired thereunder by said company, to that particular part of East avenue included in said grant and subsequently possessed and occupied by said company, it follows, that whatever interest it did acquire is its private property, although acquired and held for a public use, and is, therefore, within the protection of the constitutional prohibition “that private property shall not be taken for public uses without just compensation.”

It remains then only to consider whether the construction of plaintiff in error’s railway in the manner proposed, viz.: by placing one of the rails of plaintiff in error’s track on the roadbed and between the two rails of defendant in error’s track, would constitute and be, a taking of defendant in error’s property, within the constitutional meaning of that term. To -constitute a taking of property it is not necessary that there should be an exclusive appropriation, a total assumption of possession or an absolute and total conversion of the entire property. One of the valuable incidents of absolute property is the right -of user, and this right of user necessarily includes the right and power to exclude others from its use. Hence, any serious abridgment or interruption of the common and necessary use of property may -amount in law to a taking and entitle the owner to -compensation. “A partial, but substantial, restriction of the right of user may not annihilate all the -owner’s rights of property in the land, but it is none the less true that a part of his- property is taken. 'Taking a part is as much forbidden by the constitution as taking the whole. The difference is only one ■ of degree; the quantum of interest may vary, but the principle is the same.” Wood’s Railway Law, section 231. In this case the interruption and injury that would necessarily result to the use of defendant in error’s property, is at once manifest from the nature ■ of the right claimed by plaintiff in error, for it is not susceptible of doubt that the imposition of a portion •of plaintiff in error’s track upon the roadbed and track of defendant in error, would be productive of deJay and obstruction to the cars of the latter in the reasonable and necessary operation of its road. Indeed, the obstruction and delay would be precisely the same as if the two companies were running and operating their cars over the same track. Yet plaintiff in error would admittedly be without right to run its cars over the tracks of defendant in error, without its consent, or unless it should first have obtained the right so to do by an authorized appropriation.

Upon the facts of this case as found by the circuit, court, we are of opinion that the defendant in error was entitled to the injunction prayed for, and the-judgment of the circuit court is therefore

Affirmed.

Davis, Shauck and Price, JJ., concur.