author: Qkey, J. McIlvaine, J.,

text:
    Platt v. Pennsylvania Company.

      Constitutional law — Eminent domain — Benefits set off against value of land taken — More land taken than necessary — Occupancy and burden upon surplus by other corporation — Power of appropriating corporation to sell surplus — Estoppel to sell surplus.

    Oliver was owner in fee of a lot of land, which extended to the middle of the Maumee river, on the east side of that stream. In February, 1851,-the Lake Shore Kailway Company appropriated for its road running noflth and south, parallel with the river, a strip of ground through such lot one hundred feet in width and twelve hundred feet in length, which left a portion of such lot between the land appropriated and the river, and also a portion on the other side of the strip appropriated. No compensation in money was assessed or paid, the supposed benefits having been set off against the actual damages, as authorized by the constitution. of 1802. The appropriation was made under the act of 1848, “regulating railroad companies” (2 Curwen, 1394, (5 9), by which such a company had the right to enter upon land and “ appropriate so much thereof as may be necessary for its railroad,” and “hold the interest in such lands . . . and the privilege of using any materials on said roadway within fifty feet on each side of the center of such roadway, for the uses aforesaid.” Immediately after such appropriation, the company constructed its railroad on the western half of the strip, and it has continued to operate its road on that half to the present time, but it has never used the other half of such strip. In 1872, the Pennsylvania Company, a corporation under the laws of Pennsylvania, hut not authorized to appropriate lands in Ohio, under our statutes, desiring to have twenty-five feet of the strip so appropriated, being the twenty-five feet lying immediately east of the fifty feet so used by the Lake Shore Company, for the purpose of constructing and operating thereon a railroad, and the Lake Shore Company, after the lapse of more than twenty-one years, having become satisfied that it did not and would not need such strip of twenty-five feet for any purpose, it was agreed by the two companies, that the Pennsylvania Company, for the consideration of $7,500, paid by it to the Lake Shore Company, should have the right to construct and operate, on such twenty-five feet, a railroad, and hold such twenty-five feet for such purpose in perpetuity; and accordingly the Pennsylvania Company constructed and is still operating such road; but there was no appropriation of such twenty-five feet by the Pennsylvania Company, nor was any compensation paid therefor to Oliver. * The track of the Pennsylvania Company is constructed on a different grade from that of the Lake Shore Company, and by reason of this fact that portion of Oliver’s lot lying between the strip appropriated and the river, theretofore.aceessible to Oliver, has become inaccessible to him and comparatively worthless. In an action by Oliver against the Pennsylvania Company, commenced in 1876, to recover damages by reason of the premises, Held:

    1. Under the constitution of 1802, which was unlike the present constitution in that respect, where lands were appropriated by a railroad company for its track, supposed benefits might be set off against the value of the land taken, and hence the land might be appropriated without the payment of any money whatever.
    2. The power to take, in invitum, private property for the purposes of constructing and operating a railroad thereon, can only be delegated to a corporation by statute; and as such statute must be strictly construed and followed, the land-owner, by one appropriation pursuant to the act of 1848, above mentioned — where more land was appropriated by such corporation than was necessary for its use — could not (as but an easement and not a fee passed) be subjected to the occupancy and burden, upon such surplus, of another common carrier holding under an attempted grant in perpetuity from the first corporation. In so holding, we recognize fully the right of sale or lease of a road and right of way to another railroad corporation, which shall pass all the rights of the original company to the purchaser or lessee, to the extent contemplated in our legislation or recognized in the decisions of this court, none of which are questioned in this case.
    3. The fact that it became evident, subsequently to an appropriation, that the company has appropriated more land than was necessary for its use, and would not need a particular specified part of the strip appropriated for any purpose for tvhich the appropriation was made, will not authorize the company to sell in perpetuity such surplus part to another railroad company; and where the latter company, pursuant to such purchase, constructed on such surplus a railroad, and operated the same for several years, the land-owner is not authorized to recover by civil action such surplus, or enjoin the operation of such railroad thereon, but he may by action treat the transaction as an abandonment of such surplus by the first company and its appropriation by the last company, and recover damages as upon an appropriation.

      4. In such an action the land-owner is not estopped by the condemnation proceedings to show that the first company appropriated more land than was necessary for its use.
    Error, to the District Court of Lucas county.
    The Toledo, Norwalk and Cleveland Railroad Company was incorporated in 1850 (48 Ohio Local L. 316; 49 Ohio Local L. 460), and had so much of the power of eminent domain as was delegated by the act of 1848 (2 Curwen’s Rev. Stat. 1394). The authority delegated by that act (section 9) was, inter alia, to enter upon lands and “ appropriate so much thereof as may be deemed necessary for its railroad, including necessary . . . materials for construction, except timberand the act provided that “it shall he lawful for such corporation to hold the interest in such lands, or materials, thus appropriated, and the privilege of using any materials on said roadway, within fifty feet on each side of the center of such roadway, for the uses aforesaid.”
    William Oliver, to whose rights Harvey P. Platt and Charles H. Scribner, plaintiffs below and in error, have succeeded, was the owner in. fee of a tract of land in Lucas county, in the immediate vicinity of the city of Toledo, known as lot 13, lying on the Maumee river, on the east side thereof, and extending to the middle of the stream. Iu February, 1851, the railroad company, above mentioned, entered upon the tract, and in pursuance of the above section 9, as it is claimed, appropriated, by proceedings under the act, a strip of ground one hundred feet wide and twelve hundred feet long, passing through Oliver’s tract, running parallel with the river, and leaving unappropriated part of his lot on each side of the strip appropriated. This was done without awarding or paying any compensation whatever iu money for the land so appropriated, the anticipated benefits having been, set oft’ against the value of the land and probable damages. And upon the western half of the strip so appropriated, the railroad company constructed its track and commenced to operate its railroad, but shortly thereafter that company was, in due form of law, it is said, merged in and consolidated with the Lake Shore and Michigan Southern Railway Company, which latter company succeeded to the rights, and occupied the position, in ' all respects, of the former company m relation to the lauds so appropriated, and. it continues to occupy its road as such successor. But neither company -occupied, at any time, the eastern half of the strip so appropriated, or any part thereof; and, notwithstanding such appropriation, and the use of such half of the strip appropriated, Oliver and those holding under him were not at any time obstructed in the use of the lot, or any part thereof, and the lot of the plaintiffs was very valuable.
    After the Toledo, Norwalk and Cleveland Railroad Company, and its successor, the Lake Shore and Michigan Southern Railway Company, had occupied the western half of the strip of one hundred feet, as aforesaid, for more than twenty-one years, and after it had become evident to the latter company, that twenty-five feet of the appropriated strip, lying immediately east of a line through the middle of the one hundred feet, would not be needed by the latter company for any purpose, and the Pennsylvania Company, a corporation under the laws of Pennsylvania, doing business in Ohio, but having no power under the statutes of this state to appropriate lands to its uses, desiring such strip of twenty-five feet for the purpose of constructing and operating a railroad thereon, it was agreed between those companies, in September, 1872, evidenced by an instrument of writing dated January 24, 1874,'that in consideration of $7,500 paid to it by the Pennsylvania Company, and other valuable considerations, the Lake Shore Company should transfer to the Pennsylvania Company the strip of twenty-five feet aforesaid, and the latter company should hold the same in perpetuity for such purposes, and should also have other rights and privileges in the agreement specified; and, pursuant to the agreement of 1872, the Pennsylvania Company entered upon such twenty-five feet, excavated for its track in and upon the same, and constructed thereon its track on a different grade from that of the Lake Shore Company, and used and occupied, and continues to have the exclusive use and control of the same for. railroad purposes, against the will of the plaintiffs, and without having acquired such right from the plaintiffs, or those under whom they claim, by purchase, condemnation, or otherwise than as above stated.
    On June 21, 1876, Platt aud Scribner, above named, brought suit, in the court of common pleas of Lucas county, against the Pennsylvania Company, to recover damages by reason of the premises. In their petition they say, among other things: “That portion of said lot so abandoned to and occupied by the defendant, as aforesaid, is of the value of ten thousand dollars. . . . But for the wrongful and unlawful acts of the defendant herein above complained of, said property rights and privileges of the plaintiffs would be of great value. . . . The excavations made by the defendant, as aforesaid, are of great depth, and extend entirely across said lot thirteen, at the westerly side of the River road, so called, and are within a short distance of said river front of the plaintiffs for said distance of about twelve hundred feet; that said railroad track of the defendant is constructed upon and operated along that portion of said lot so excavated, as aforesaid, at a different grade from that of the tracks of said Lake Shore and Michigan Southern Railway; and by reason of the premises aforesaid, all communication between said river front and the remainder of plaintiffs’ said premises, is cut off and destroyed; that, in consequence of such wrongful and unlawful acts of the defendant, and the proposed maintenance thereon of defendant’s liue of railway as aforesaid, the usefulness and value of the plaintiff's’ river front, and of the remainder of their premises, have been and are greatly injured, impaired, and depreciated; and the plaintiffs aver that they have sustained damages by reason of the premises aforesaid in the sum of fifty thousand dollars; wherefore plaintiffs pray judgment against the defendant for the sum of sixty thousand dollars, and for all proper relief.”
    The defendant demurred to the petition,.and the court having sustained such demurrer and dismissed the action, the district court affirmed the judgment. These decisions were made, however, without argument, and simply with a view to a determination of the questions of law in the supreme court. A petition in error having been filed, the question here is the same presented in the courts below, namely, whether the petition filed in the court of common pleas contains facts sufficient to constitute a cause of -action. That question having been considered, the answer to it, and the steps by which the conclusion was reached, will be stated in the opinion.
    The contract referred to in the petition is as follows: “Whereas, the Pennsylvania Company has located and constructed the Toledo and Woodville Railroad, along the east bank of the Maumee river, for some distance on the right of way of the Lake Shore and Michigan Southern Railway Company, and also across the main line of the said Lake Shore and Michigan Southern Railway Company, above grade at a point five hundred and fifty-three (553) feet east of the Lake Shore and Michigan Southern Railway Company’s bridge across the Maumee river, and across to dock at grade at station number four (4) of dock track numbering, as shown on map accompanying this agreement, all of which thus far has been done in pursuance of an understanding between the parties. And, whereas, it has been ■finally settled between the parties, that the said Pennsylvania Company will pay, and the Lake Shore and Michigan Southern Railway Company will recéive, the sum of seven thousand five hundred ($7,500) dollars in full satisfaction for the privileges hereby by it (the reserve claim for damages being hereinafter mentioned): therefore it is agreed by and between the parties :
    “ That for the consideration aforesaid the Lake Shore and Michigan Southern Railway Company permit and license the said Pennsylvania Company to occupy for the use of its (the Toledo and Woodville) railroad, the following described portion of its right of wajr, to wit: That part of the east fifty (50) feet of the Lake Shore and Michigan Southern Railway Company’s right of way to ‘old depot ground’ on the east side of the Maumee river known as its dock track, and shown on'a map accompanying the agreement, described as follows: Beginning at station three plus fifty (3 -|- 50) of dock track numbering, said station being three hundred and fifty (350) feet westerly from a stone monument being at station ‘O,’ as shown on map of survey, made by J. B. Marston, for re-establishing said right of way; thence easterly at right angles from said station three plus fifty (3 + 50), twenty-five (25) feet; thence northerly, taking a strip of land twenty-five (25) feet in width, adjoining and parallel with the center line of right of way of said dock track, a distance of eighteen hundred and fifty (1,850) feet from station three plus fifty (3 + 50), to station twenty-two of dock track numbering; thence northerly on a two-degree, fifteen-minute (2° 15') curve to the right, taking a strip of land twenty-five (25) feet wide, and for a distance of nine hundred and fifty (950) feet from station twenty-two (22) to station thirty-one plus fifty (31 + 50) of dock track numbering — where the east line of said twenty-five (25) feet strip of land intersects the east line of right of way of said dock track; the west line of said twenty-five (25) feet strip of land being twenty-five (25) feet easterly of and at right angles to said station thirty-one plus fifty (31 -f 56); thence northerly from said point on west line of said twenty-five (25) feet strip of land on two degree fifteen minute (2° 15') curve, continued two hundred (200) feet to a point thirty-seven (37) feet easterly of and at right angles to station thirty-three plus fifty (33 -j- 50) of dock track numbering; thence in a straight line northerly two hundred and forty-five (245) feet to a stake standing in the south-east corner of ‘ old depot ground/ said stake being fifty (50) feet easterly of and at right angles to station thirty-six (36) of dock track numbering, being in the east line of said dock track right of way, as shown on accompanying map; thence south-westerly on said east line of said dock track right of way to the place opposite station thirty-one plus fifty (31 -f- 50) where the east line of the twenty-five (25) feet strip of land above mentioned intersects the east line of dock track right of way; thence westerly twenty-five (25) feet to the point heretofore mentioned as being twenty-five (25) feet easterly of and at right angles to said station thirty-one plus fifty (31 + 50) of dock track numbering. Also one other piece or parcel of land, described as follows: Beginning at a stake standing in the south-east corner of ‘ old depot grounds/ which stake is fifty (50) feet easterly of and at right angles to station thirty-six (36) of dock track numbering; theuce north-easterly to the east line of ‘ old depot grounds’ eleven hundred and seventeen (1,117) feet to a stone monument on the line between lots three (3) add four (4), as shown on accompanying map; thence north on said line between lots three (3) and four (4), one hundred and fifty (150) feet to a stake standing on the bank of the Maumee river at ordinary low-water mark; thence southwesterly twelve hundred and thirty-eight (1,238) feet to the place of beginning, being a triangular piece of land taken from the east side of ‘ old depot ground/ as shown on map accompanying this agreement. The amount of land con-tamed in all the above described is three (3) acres, more o* less.
    “The property intended to be conveyed is further described and exhibited on the map accompanying this agreement. The center line of right of way of the Lake Shore and Michigan Southern Railway Company main line, and also of dock track, is indicated by a heavy red line, and the right of way ceded by the Lake Shore and Michigan Southern Railway Company to the Pennsylvania Company is indicated by being colored blue.
    “ It is further stipulated that the said,Pennsylvania Company shall at all times, at its own expense, maintain and keep in repair said crossings at said dock track; also, in the event that another railroad company shall build its road on the other adjoining twenty-five (25) feet of said right of way belonging to said Lake Shore and Michigan Southern Railway Company, the said Pennsylvania Company agrees that it will permit it on equitable terms to use one or both of the crossings by it constructed over said dock track, so that said Lake Shore and Michigan Southern Railway Company may not be compelled to submit to more than two crossings at that place by one or both of said roads.
    “And it is further stipulated that inasmuch as consequential damages may result to the Lake Shore and Michigan Southern Railway Company by reason of the crossing of its said dock track at grade, for which no compensation is herein provided, excepting only for the land taken, the said Lake Shore and Michigan Southern Railway Company has not ana does not waive its right at any time hereafter to demand and enforce such claims, provided it shall finally be decreed by the supreme court of Ohio that the company whose track is crossed at grade by another railroad shall be entitled to damages for the expense thus entailed upon it.
    “It is further agreed that it it shall become necessary to employ watchmen to guard said crossing, they shall be employed and paid by the said Lake Shore and Michigan Southern Railway Company, and the one-half of the expense thereof shall be reimbursed by the said Pennsylvania Company. And the question of the liability of the said Pennsylvania Company to the Lake Shore and Michigan Southern Railway Company for its share of said expense shall abide the clecisiou of the supreme court as aforesaid.
    “ In witness whereof, the said Lake Shore and Michigan Southern Railway Company, by its-, and the Pennsylvania Company, by its vice-president, have hereunto set their names and affixed the seals of their respective companies, this twenty-fourth day of January, a. d. 1874. Attested by the respective secretaries.
    “ The Pennsylvania Company,
    [seal of pa. co.] “ By William Thaw, Vice-President.”

      “ Attest:
    “ W. H. Baines, Secretary.”

    The insertion of the map or plat referred to in the petition and contract would not aid in determining the 'case, and therefore it is omitted.

      Scribner, Hurd. § Scribner, and Pratt $ Wilson, for plaintiffs in error,
    cited and commented on the following authorities : Grand, Junc. etc. Co. v. Middlesex, 14 Gray, 553; S. P. R. R. Co. v. Reed, 41 Cal. 256; Heard v. Brooklyn, 60 N. Y. 242; s. c., sub nom. Strong v. Brooklyn, 68 N. Y. 1; Brice’s Ultra Vires (Eng. ed. of 1874), 83, 252; Carty v. Shields, 5 Week. Notes, 241; Onthank v. Lake Shore, etc. Ry., 16 Alb. L. J. 428 ; 17 Alb. L. J. 319; Hatch v. Railroad, 18 Ohio St. 92; Lance’s Appeal, 55 Pa. St. 16; Proprietors, etc. v. Railroad, 104 Mass. 1; Pierce on Railroads (1881), 230; Malone v. Toledo, 28 Ohio St. 643; s. c., 34 Ohio St. 550; Junct. Rail. v. Ruggles, 7 Ohio St. 1; Cooley’s Const. L. (4th ed.), 697; Toledo, etc. R. Co. v. Daniels, 16 Ohio St. 390, 396 ; Bowersox v. Commisiioners of Seneca Co., 20 Ohio St. 496; Railroad Co. v. Bruce, 10 Am. & Eng. R. Cas. 1, 13; Kansas Cen. R. Co. v. Allen, 22 Kan. 285 ; 9 Vroom, 28; 3 Sm. & Gif. 283.
    J. T. Brooks, for defendant in error,
    commented on the cases above, and also cited and commented on the following authorities and statutes: Chagrin Falls case, 2 Ohio St. 419; Cumminsville case, 14 Ohio St. 547; Symonds v. Cincinnati, 14 Ohio, 147; Kramer v. Railroad, 5 Ohio St. 140; Pierce on Railroads, 159; 49 Ohio L. 94; S. & C. 325; 66 Ohio L. 32, 83.

         This case was decided while Hon. W. W. Johnson was Chief Justice.

   Qkey, J.

The contention of the Pennsylvania Company is that the Lake Shore Company had the right to take and hold the whole of the strip of one hundred feet through the Oliver lot, although it had no occasion to use the east half of it, or any part thereof, at any time; that, after holding such east half for more than twenty-one years, and after finding that it would never need the same for any purpose, the Lake Shore Company might lawfully, not merely lease temporarily, but sell, in perpetuity, one-half of such unused strip, that is, a strip twenty-five feet, wide, to' the Pennsylvania Company, and apply the purchase-money ($7,500) to its own use; that the Pennsylvania Company might thereupon construct and operate, on a different grade, a railroad on such strip of twenty-five feet, cutting off' thereby the lot-owner’s access to the different parts of his lot, which, until then, had been free and unobstructed; and that all this might be done without making to the owner of the lot any compensation whatever, except such as he received in assumed benefits, at the time of the appropriation of the strip of one hundred feet, in February, 1851.

It would be very surprising to find a decision sustaining a claim so palpably and flagrantly unjust, and we will venture to say that no such case can be found. Not only can no such case be found, but the plainest principles and the clearest authorities absolutely forbid the allowance of any such claim. In the leading case of Giesy v. Railroad, 4 Ohio St. 308, 328, Ranney, J., said: “The quantity of land that may be appropriated for this purpose is left, it is true, very indefinite. It is clear, however, that only so much can be taken as is necessary to be used in that manner. And with the power of the courts to prevent abuses, and the certainty that it can be held only so long as it is thus used, and can not be diverted, to any other purpose, there may be little danger ot attempts to get too much.” “It may, however, be safely asserted,” said Andrews, J., “ that the acquisition of lands for the purpose of speculation or sale, or to prevent interference by competing lines or methods of transportation, or in aid of collateral enterprises remotely connected with the running or operating of the road, although they may increase its revenue and business, are not such purposes as authorize the condemnation of private property.” Rennssalaer, etc. Ry. Co. v. Davis, 43 N. Y. 137, 146. “ The surplus,” says Mr. Mills, “ beyond the amount required by the public, is .not properly taken, not being needed for the public use, and the owners are entitled to such surplus.” Em. Dom., § 23. In Swinney v. Ft. Wayne, etc. R. Co., 59 Ind. 205, it appeared that an appropriation had been made under an Indiana statute, which is the same as our act of 1848, permitting the company to enter upon lands, and, by proceedings in court, appropriate “ so much thereof as may be deemed necessary for its railroad.” The court held: “A railroad company has no authority to appropriate land for the use of another company,” and “ there is no authority of law for several railroad companies to agree that one of their number shall proceed to appropriate land for the purpose of afterward dividing it for the-benefit of all; each company must proceed for itself.” In Mahoney v. Spring Val. etc. Co., 52 Cal. 159, it was held : “A water company having commenced such proceedings, can not sell and transfer its right to prosecute them, or to take private property, to another water company, nor can the latter purchase such right. Such attempted sale and purchase, on the part of either corporation, is ultra vires in the extreme sense, and is a fraud on the court or judicial officer before whom the proceedings are pending, and whose judgment is employed in determining the necessity of the appropriation to the public use represented by the corporation petitioner, not its necessity to a use represented by another corporation.” And see Taylor on Corp., § 166; Spring Valley Water Works v. San Mateo Water Works, 64 Cal. 123.

The Lake Shore Company is not a party, and hence there can be no adjudication in this suit which will operate as an estoppel as to that company; but the Pennsylvania Company is a party; it has accepted a conveyance from the Lake Shore Company; hence it may be estopped as effectually as if the Lake Shore Company had been made a party. The legal title to the strip of one hundred feet remained in Oliver, and is now in the plaintiffs. The Lake Shore Company - acquired an easement only, though an easement in perpetuity, and where there is an abandonment of such easement, the interest acquired reverts to the owner of the fee. Here the Pennsylvania Company is es-topped to deny that there was, not a forfeiture, but an abandonment of the easement, first, by non-user of the strip of twenty-five feet in question for more than twenty-one years; and, secondly, by the conveyance accepted by the Pennsylvania Company; and in such case, where the interest, as here, was an easement, it is not merely for the state to complain, but the owner has his remedy directly. Sometimes this remedy may be to compel condemnation under the statute; but the Pennsylvania Company is a foreign corporation, without power of condemnation. Sometimes the remedy may be by action to recover possession, or to restrain the running of trains until compensation is made; but where the plaintiff has stood by, as may have been the case here, until the improvement was made, either of such remedies would be harsh. Under the circumstances disclosed in this petition, an action to recover as upon appropriation seems to be the proper remedy, and consideration of the following cases will show, as well that such action is warranted, as that here was a clear case of abandonment. Heard v. Brooklyn, 60 N. Y. 242; s. c., sub nom. Strong v. Brooklyn, 68 N. Y. 1; Washington Cem. v. Railroad, 68 N. Y. 591; Haldeman v. Railroad, 50 Pa. St. 425; Lance’s Appeal, 55 Pa. St. 16, 25; Pittsburgh, etc. R. Co. v. Bruce, 102 Pa. St. 28; s. c., 10 Am. & Eng. R. Cases, 1, and note; Hatch v. Railroad Co., 18 Ohio St. 92; Wagner v. Railroad, 22 Ohio St. 563, 579; Goodin v. Cincinnati, etc. R. Co., 18 Ohio St. 169 ; Atlantic & G. W. R. Co. v. Robbins, 35 Ohio St. 531, 538; Corwin v. Cowan, 12 Ohio St. 629; Longstreet v. Harkrader, 17 Ohio St. 23; Taylor v. Railroad, 38 N. J. Law, 28 ; Oregon C. R. Co. v. Baily, 3 Oregon, 164, 176; Prather v. Jeffersonville, etc. R. Co., 52 Ind. 16; Terre Haute, etc. Co. v. Rodel, 89 Ind. 128; People v. Met. Tel. Co., 11 Abb. N. C. 304; Grand Rapids, etc. Co. v. Heisel, 47 Mich. 393; Proprietor of Locks, etc. v. Railroad, 10 Cush. 385; Buckingham v. Smith, 10 Ohio, 288; Cooper v. Williams, 5 Ohio, 391; McArthur v. Kelly, 5 Ohio, 139; Jordan v. Overseers of Dayton, 4 Ohio, 294; Moorhead v. Little Miami R. Co., 17 Ohio, 340; Kansas Ry. Co. v. Allen, 22 Kan. 285; U. S. v. Great Falls Man. Co., 112 U. S. 645 ; Hopkins v. Railroad, 79 Mo. 98; Bostock v. North Staffordshire R. Co., 3 Smale & Gif. 283, 292; 26 Moak Eng. Rep. 404.

Counsel for the Pennsylvania Company, in answer to this view and such other reasons as the plaintiffs have assigned for recovery, place much reliance on Junction Railroad Co. v. Ruggles, 7 Ohio St. 1, and Hatch v. Cincinnati and Indiana R. Co., 18 Ohio St. 92. But in fact these cases support the claim of the plaintiffs. In the first ease, it appeared that Ruggles executed to the Ohio Railroad Company an instrument in ■writing, under seal, agreeing that, if the company would locate its road through any lands possessed by him, he would quitclaim to it so much .land as the company was authorized to take, to wit, a strip one hundred feet in width through such lands for the purpose of location and construction of the road, with the right to immediate possession, and of taking and converting to their own use stone, gravel, etc. The company located its road though the lands of Ruggles, but before the road was completed, the state, which had loaned its credit to the company, took possession of and subsequently sold the road, under the act of 1837 and a joint resolution passed in 1845. Ebenezer Lane became purchaser, who conveyed his title to the Junction Railroad Company, and that company proceeded to build the road through the lands of Ruggles, on the strip so located by the Ohio Railroad Company. Ruggles objecting and threatening to bring suit, the Junction Railroad Company commenced an action and obtained an injunction restraining him from interfering with the construction of the road, aud this court made the injunction perpetual. Stress is placed by the court, and properly placed, on the fact that the rights, as against Ruggles, were acquired, not by invoking the power of eminent domain, but by contract, aud the case really turned on the assignability of the contract, in view of the terms of the agreement, the legislation, and the existing facts.

In Hatch v. Cincinnati, etc. R. Co., 18 Ohio St. 92, it appeared that in 1840 the Whitewater and Cincinnati Caual Company constructed a canal in Hamilton county, from Cincinnati to Harrison, passing through Hatch’s farm, and appropriating and using for such purpose a strip of land of an average width of about fifty feet. The canal was used and operated until 1863, when the Cincinnati and Indiana Railroad Company undertook to appropriate for its railroad track the land so used by the canal company, paying, by agreement between the canal company and railroad company, to the former, $50,000 therefor, and the railroad company took additional land belonging to the plaintiff, so that the strip of ground it occupied was about sixty feet wide, •and it constructed and operated a railroad thereon, but it made to Hatch no compensation additional to that which he received from the canal company. Hatch brought suit -against the railroad company, seeking to recover damages as upon an appropriation. This court doubted the right of the railroad company to appropriate the canal in invitara, but regarded the proceeding, so far as it affected the two companies, as, in effect, a sale, and as the canal company made no complaint, the court was unwilling to say the appropriation proceeding was a nullity, and it was upheld as against Hatch. As the canal was a servitude upon the lands of Hatch, unrestricted in duration, and furnished means of conveying freight of every sort, and passengers, from one point to another, the court held that the change of the mode of conveyance from canal to railroad was, under the circumstances, not such change of use — not such abandonment — as entitled Hatch to compensation a second time for the land actually taken and used by one common carrier. It was the case of one common carrier occupying the identical strip of ground, and all of it, which had been occupied by another common carrier, and the burden was the same before and after the change; there was only one common carrier at any time. If the company which condemned the land and made compensation to Hatch had been a railroad company, and had built its road, no doubt another railroad company succeeding to its rights by purchase would not have been required to make compensation to Hatch, for he would thus be receiving compensation twice for the same thing; and the court held, the circumstance that the first company was a canal company and its successor a railroad company, would make no difference. But this court further held, not only that Hatch was entitled to compensation for the additional laud taken, but that he was entitled to compensation for the additional servitude to which he was subjected, the latter point decided being expressed as follows: “Where an entire tract of •land is cut asunder by an appropriation of an easement upon it by a canal company, for the purpose of a canal, and this easement is afterward transferred by the canal company to a railroad company for the purpose of a railroad; and the latter, in the construction of its railroad, throws up embankments or excavates cuts across a common public highway, skirting the tract, and constituting the only convenient medium of access between the parcels into which the tract has been, thus severed, the increased inconvenience and danger of access thus occasio'ned between the two parts of the tract are peculiar to the owner,of the tract in the use of his property, not common to the public at large, and for this increase of inconvenience and danger, he is entitled to' compensation.”

As there is nothing in any ease, certainly nothing in either Junction Railroad Co. v. Ruggles, or Hatch v. Railroad, which militates against a recovery by the plaintiffs, this opinion might well end here. But other well-settled principles lead to the same conclusion.

1. The power granted by statute to the condemning company was to take and hold an easement for “ its railroad;" and such statutes must be strictly construed. And this is not a rule to be asserted and then disregarded, but to be rigidly enforced. Lane, C. J., in Kemper v. Turnpike Co., 11 Ohio, 392; Birchard, J., in Moorhead v. Railroad, 17 Ohio, 340, 350; Bartley, J., in Kramer v. Railroad, 5 Ohio St. 140, 147; Welch, J., in Toledo, etc. R. Co. v. Daniels, 16 Ohio St. 390, 396; McIlvaine, J., in Bowersox v. Watson, 20 Ohio St. 496, 588; Johnson, J., in Railroad Co. v. Furnace Co., 37 Ohio St. 321, 329. And see Straus v. Eagle Ins. Co., 5 Ohio St. 59; Spring Valley Water Works v. San Mateo Water Works, 64 Cal. 123; Pittsburgh, etc. R. Co. v. Bruce, 102 Pa. St. 23; Green’s Brice’s Ultra Vires (2d ed.), 380; Taylor on Corp., § 163.

2. Whei’e, as here, the interest acquired is only an easement, the owner of the fee retains every right in the laud appropriated, not inconsistent with the paramount authority of the company freely and unobstruetedly to build, repair, and operate its railroad, and use therefor materials fairly within the condemnation. In Goodtitle v. Alker, 1 Burr. 133, it was said of a way, that “ the owner of the soil has right to all above and under ground, except only the right of passage for the king and his people.” In Julien v. Woodsmall, 82 Ind. 568 (approved 91 Ind. 137), it was held that ice formed on the right of way of a railroad belongs to the owner of the soil, who may maintain trespass against a person who removes it without his consent. And the owner of the fee is not only owner of the minerals under the land appropriated, but also owner of the soil, gravel, trees, and herbage, except as needed by the company in constructing, repairing, and operating its road. Kan. Cen. R. Co. v. Allen, 22 Kan. 285; Taylor v. N. Y. etc. R. Co., 38 N. J. L. 28; Preston v. Dubuque R. Co., 11 Iowa, 15; Aldrich v. Drury, 8 R. I. 554; Hasson v. Oil Creek Co., 8 Phila. 556; 10 Am. & Eng. Rail. Cas. 1-14. And where, as in this ease, the right of way passes through, a tract of land, leaving part of the tract on each side of the portion appropriated, the question how far access to the different parts of the lot will be affected, is always considered. Hatch v. Railroad,, 18 Ohio St. 92. And the owner of the fee is ordinarily not deprived of access to the different parts of his lot through which a railroad passes.

a. If the lot is of sufficient size, there may be a crossing thereon constructed pursuant to the statute.

b. There may be a crossing by means of a bridge, a tunnel, or a road, under conventional arrangement.

c. There may be such use of the land, acquiesced in by the company, as will amount to license to cross. Taylor’s Corp., § 371.

Hero the authority under which Oliver had access to the different parts of his lot does not appear, but it is shown by the petitiou that such access existed, and that it was unobstructed, notwithstanding the Lake Shore Company was operating its railroad; that such access was a valuable right; and that it was destroyed by the Pennsylvania Company by constructing and operating its road. We may well say that the access which the plaintiffs had, from one part of their lot to the other, existed lawfully, and that it was wrongfully destroyed by the defendant.

3. Under the constitution of 1802, which was in force when this appropriation was made, benefits could be estimated and set off' against the value of lands and damages, so as to permit the land to be taken without the payment of a dollar in money. That was done in this case. True, Judges Scott, Ranney, Bartley, and Brinkerhoff, and perhaps others, were of opinion that this was an erroneous construction of the constitution, but it was acquiesced in until it had become a rule of property, and hence this court has been and is unwilling to disturb it. See Kramer v. Railroad, 5 Ohio St. 140, 147; Corwin v. Cowan, 12 Ohio St. 629, 633. Here we must assume the court took into consideration the burden as well as the benefit which one common carrier, namely, the Toledo, Norwalk and Cleveland Railroad Company, operating, without limit in time, its trains through Oliver’s lands, would be to him, and that the benefits were set off against the value of the land taken and damages sustained. Oliver agreed to assume the burden of one common carrier, and no more. In point of fact, as appears from the petition, the construction and operation of that road did not interfere with Oliver, in the use of the different parts of his lot, and this, we must assume, was apparent to the court when the condemnation was made. As the railroad company was only authorized to condemn for its railroad, the court could only take into consideration the burden which would be imposed by the construction of that road ; and as the Pennsylvania Company imposes a new burden, it is evident that Oliver and those holding under him have never been compensated for that burden, or, in other words, ■when such additional burden is considered, they have not been compensated for the land taken. If the construction of the Pennsylvania Company’s railroad on plaintiff’s land benefited them in any way, it is not shown, and it is quite apparent, that, by reason of such additional road, plaintiffs are greatly injured.

4. To be sure, it is urged that this was an appropriation of the one hundred feet for railroad purposes generally. Rut that is to reverse the rule of construction above stated; it is to assert that the Toledo, Norwalk and Cleveland Railroad Company took, not a mere easement for its road, but a fee for railroad purposes generally, with power not only to use, but to sell parcels of the land condemned to a number of railroad companies. In view of our statute and the decisions already cited, there is not the slightest authority for any such claim. An easement for one road, as we have seen, was acquired, and nothing more; and the statute contemplates only that. True, there may be a sale, where the statute authorized it; there may, as we have seen, be a change of use; one railroad company may lease its road to another; there may be certain running arrangements between roads, enforced either by statute, or carried out conventionally. It is not our purpose to define the limit of the power of railroads in any of these particulars, but is sufficient to say that this does not militate in any way against any thing that I have said.

5. Defendant in error suggested that objection should have been made, at the time the appropriation proceeding was determined, to the quantity of land taken, and that the objection was waived by failure to insist on it at that time. The point has not been pressed for the obvious reason that it is plainly untenable. Doubtless the company was, in its inception, like every similar railroad enterprise, one of “ great expectations,” and Oliver, as well as the promoters of the company, may have been honestly misled as to the quantity of land which the company, in view of its business, might require in the. future. Neither Oliver, nor those holding under him, have done any thing to mislead the companies, or either of them. Even if he had suggested to the court, in 1851, that the company was taking too much land, how could he have shown that his statement was true ? He was bound to do nothing of the kind. On the contrary, as Judge Ranney shows in Giesy v. Railroad, he might well assume that when it was shown that too much was taken — that when time had demonstrated the company only needed one-half of the quantity taken — the court could interfere in behalf of the owner and set the matter right.

Without pursuing the subject further, we hold the petition presents a clear case for relief in the way stated, and hence the judgments in the courts below must be

Reversed.

McIlvaine, J.,

dissenting: The following are the only propositions of law involved in the decision of this case, and, in my opinion, the judgment below should be affirmed.

1. A right of way appropriated by a railroad company, as necessary for the use 0/ its railroad, is transferable to another company for like uses.

2. The transferee company is entitled, as against the owner in fee, to all the rights, privileges, and immunities acquired by the appropriating company.

3. The right to impose burdens upon the land appropriated is subject to the same limitations in the posession of the transferee as of the appropriating company; on the other hand, the right to impose burdens on the land passes to the transferee to the full extent possessed by the appropriating company.

4. The right to transfer the entire right of way, with all tbe privileges acquired by the condemnation, includes the right to permit and license another railroad company to occupy for the use of its road a part of the right of way.

5. The use of such part by the licensee in the same manner it could have been used by the licensor is not an addiditional burden on the land for which the owner in fee is entitled to additional compensation.

6. The quantity of land embraced in the right of way is fixed and determined, as between the parties, by the judgment of condemnation.

7. The non-user of those portions of the right of way, at the sides of the track of the road, is not an abandonment thereof to the owner in fee.

Thefirst and main proposition is admitted tohe the law by the majority of the court in the decision of this case. It is so declared by the courts of most of the states of this Union, and by none more0 emphatically than by the supreme court of Ohio. In the Junction Railroad Co. v. Ruggles, 7 Ohio St. 1, it was decided, in a case where the appropriating company had sold its right of way to auother company before it had constructed a road thereon, that the sale was valid and the title passed. In Hatch v. Cincinnati and Indiana Railroad Co., 18 Ohio St. 92, a right of way appropriated by a canal company, for canal purposes, was sold to a railroad company for railroad purposes. The sale was maintained on the ground that the purposes of the condemnation by the canal company, and the uses to which it was transferred were similiar, to wit, a public highway. The contracting parties to the transfer, having power to contract, special legislation to transfer this species of property was not relied on. The transferability of the right of way was based on the inherent nature of property.

A right of way for public uses, whether held as an easement or in fee, is property, and as such, in the absence of restraining statutes, is transferable. In the cases cited, the right of way was a perpetual easement, but in Malone v. City of Toledo, 34 Ohio St. 541, where the fee of the land condemned for a canal passed under the statute, it was held that the transferee took it discharged from any limitation as to uses. Of course, where the right of way is for a public use, and the right is of the nature of a perpetual easement, the transferee takes it subject to like uses. There is no doubt entertained, so far as I know, as to the correctness of the first proposition.

As to the second proposition, that the transferee of a right of way for railroad purposes is entitled, as against the owner in fee, to all the rights, privileges, and immunities acquired by the appropriation proceedings, it is hardly necessary to say a word. It is of the very essence of the transferability of property that the purchaser should succeed to all the rights of the vendor, where the contract of sale imposes no limitations, and none are imposed by the positive law of the land. It seems to me incredible that the rule should be otherwise, and it is not contended that the positive or statutory law of this state imposes any barrier to the transfer attempted to be made in this case.

The third proposition rests on the principles underlying the second. Of course, a vendor of property, as a general rule, can not vest any right or title in the purchaser which he did not himself possess; but where no conditions or limitations are imposed by the contract of sale, and no rule of law forbids it, the property passes to the purchaser as fully subject to his control and dominion, as it formerly was to the control and dominion of the vendor. These views are elementary.

The fourth proposition, that the right to transfer the entire right of way, with all the privileges acquired by the condemnation, includes the right to permit and license another railroad company to occupy for the use of its road a part of the right of way, appears to me to be logically and mathematically correct, as the whole necessarily includes all its parts. As an abstract proposition this would probably not be gainsaid.

The point of difference which divides the court is, in my opinion, involved in this proposition, but as it is made more patent and circumscribed in the next, I will proceed to it.

Proposition 5. The use of such part by the licensee, in the same manner it could have been used by the licensor, is not an additional burden on the laud for which the owner in foe is entitled to additional compensation.

As I understand the decision, it is based chiefly on the ground that, by the proceedings of condemnation, the only burden imposed on the land condemned was the right to construct and maintain a single railroad, to wit, the road of the appropriating company, and it is claimed that the construction of a railroad track, and its use, by another company, to be operated at the same time as a separate road, is an ádditional burden on the land, and an invasion of the rights of the owner in fee, for which he is entitled to compensation or damages. It is admitted, as I understand, that a successor, by purchase, of the entire interest of the appropriating company, may operate the road constructed by its vendor, and enjoy the right of way to the full extent that it could have been enjoyed or used by such company. It is not denied, as I understand, that the appropriating company or the successor to all its rights may grant to another company a right of way across its own, at right angles or at any other angle, but it is claimed that a grant or license to another company to build a track parallel with its own, and on the same right of way, is in excess of the rights acquired by the judgment of condemnation. The position assumed in the decision is, I think, inconsistent with the foregoing propositions and former adjudications of this court.

■ I admit that any encroachment on lands not embraced in the right of way, by the appropriating company or its successor, would be a violation of the rights of the owner in fee; but by the condemnation the whole of the land embraced in the right of way was devoted to railroad purpose in perpetuity, and full compensation therefor was awarded to the owner in fee. It is true that, at the time these lands were condemned, the law allowed resulting benefits to other lands to be set off agaiust compensation for the land taken and injuries to other lands; but whether the compensation for land appropriated be made by resulting benefits, or in monej’, as is required by the present constitution, makes no difference in the character of the rights acquired by the approjjnating company. In either case, the owner is compensated to the full value of the property takeu. As a result, the use of the entire right of way is appropriated to public purposes. The entire right of way was subject to be occupied by tracks and side-tracks, at the will of the appropriating company, without injury to the rights of fhe owner in fee, whether he contemplated such usé or not. In law, such use was contemplated; such were the burdens for which compensation was made; and if the right of way be transferable, as we lmve shown it is, the transferee, as well as the appropriating company, may construct additional tracks to the full capacity of the right of way, without imposing any additional burden on the land for which the owner iu fee is entitled to additional compensation. This being so, upon what principle of right or of construction can it be said that the owner in fee may claim additional compensation from a licensee of a part of the right of way for an act that would be perfectly j ustifiable if done by the licensor? If it be answered that the statute which authorized the condemnation limited it to the use of the road of the appropriating company, it is sufficient reply to say that it is settled that the limitation referred to does not prevent the transferability of the property in whole or in part.

But it is said that independent of the transferability of the property, the defendant in error has placed burdens on the land in excess of those which the appropriating company acquired the right to do ; that is to say, the transportation of trains, passengers, and freight of the defendant, is in excess of the trains, passengers, [and freight to which the right of way was appropriated. This objection applies equally to transportation over the track of the old company, as over the track constructed by the defendant.

In Hatch’s case, supra, p. 120, it is said : “ The exercise of the right of eminent domain is primarily and mediately the act of the state; and corporations to which it has been delegated and by which it is immediately exercised, are but instrumentalities of the state, although they may have, and generally do have, corporate interests intermingled with, and growing out of, the exercise of this sovereign prerogative of the state.” The condemnation of private property for a public highway is the act of the state, subject to the private rights of the corporation to which the power was delegated. These private rights are granted by the state'in consideration that the corporation compensates the owner of the land for the right of way. The highway is dedicated by the state, and neither the corporation nor the owner in fee can divert the use., The owner of the fee can not, because he has been compensated in full for his interest in the land. The corporation can not, because it is the creature and agent of the state. The public use is equal to the capacity of the light of way. It is no concern of the owner of the fee what instrumentalities the state employs or permits to aid in utilizing the uses of the public highway. It may limit the use to a single corporation or may employ many corporations. This question concerns only the state and the appropriating company, and the latter only to the extent it has acquired private rights in connection with the public rights, by reason of having made compensation to the owner of the land for the right of way.

The defendant has obtained the consent of the appropriating company, and it has obtained the tacit, if not express consent of the state, and, as we have said, the owner of the fee, having received full compensation, has no right to complain. In other words, if the owner has received full compeusatson for the land, what further compensation is he entitled to for this supposed additional burden on the land, embraced in the right of way ?

These views are consistent with, and indeed underlie the policy of the state as expressed by its legislation from its earliest history in railroading. On the 3d of March, 1851, probably before the judgment of condemnation was entered in favor of Toledo, Norwalk and Cleveland Railroad Company, the predecessor of defendant in error, against Oliver, from whom plaintiffs derive their title, an act was passed which provided that “ any railroad company organized in pursuance of law may lease or purchase any part or all of any railroad constructed by any other company, if said companies’ lines of road are continuous or connected as aforesaid, upon such terms and conditions as may be agreed upon between said companies respectively. Or any two or more railroad companies, whose lines are so connected, may enter into any arrangement for their common benefit, consistent with and calculated to promote the objects for-which they were created.”

On March 19, 1869, it was provided (66 Ohio L. 3'2) that, “any railroad company organized in pursuance of law, either within this or any other state, may lease or purchase any part or all of any railroad, the whole or a part of which is in this state, and constructed, owned, or leased by any other company, if said companies’ lines of said road are continuous or connected at a point either within or without this state, upon such terms and conditions as may be agreed on between said companies respectively; or any two or more railroad companies whose lines are so connected, may enter into any arrangement for their common benefit, consistent with and calculated to promote the objects for which they were created.” Such was the policy of the state, as expressed by its legislation in force at the time the defendant in error acquired its right to use a part of the right of way appropriated by the Toledo, Nor-walk and Cleveland Company. It is true that in this legislation many restrictions are imposed for the benefit of stockholders, of the state, and of the general public. These parties, however, have made no complaint against defendant in error. The only complaint is by plaintiffs in error, for whose benefit no provision is found in these statutes. Indeed, the general assembly has at all times assumed that the owner in fee, who had received full compensation for. the perpetual use of the right of way, had no such interest left in the land as required protection against what plaintiffs in error are pleased to call “additional burdens.”

By additional burdens are meant those which were not contemplated or compensated for at the time of the appropriation. We have shown full compensation was made for the use of the entire land embraced in the right of way for all time to come, subject, to be sure, to a reversion in case of abandonment or forfeiture. There has been no abandonment — no intention to abandon. Hatch’s case, 18 Ohio St. 120. Forfeiture comes by judgment — there has been no judgment. The transfer and use by the transferee for railroad purposes was contemplated. The defendant in error has subjected the right of way to no use or mode of use to which it was not subject by its predecessors within the contemplation of the parties at the time of condemnation. No trespass on land outside of the right of way is claimed. No right of transit from one side of the right of way to the other has been impaired. Indeed, no right of such transit was reserved by the owner in fee. No such right exists in the plaintiffs. The lands on the opposite sides of the right of way were severed by the'original condemnation. All communication was cut off. This burden or inconvenience was contemplated and paid for at the time the right of way was appropriated. There has been no burden outside of the land appropriated, or on adjacent land, which was not contemplated by the parties at the time of condemnation, and which, in contemplation of law, was not paid for to the full extent of damages resulting thereto.

It appears to me the summing up of defendant’s counsel is unanswerable. He reasons thus: “If the additional burden exists, it must be in respect to the land taken, or in respect to the adjoining land. It does not exist in respect to the land taken, for such land was fully paid for when originally condemned. On no other theory than full compensation to the owner ’ could land have been taken under the constitution of 1802; moreover, the easement acquired by the Lake Shore Company’s predecessor was perpetual. The easement thus acquired is transferable, and it is reasonable that when land has been taken by the state for the purposes of a highway, and has been fully paid for, and the easement so acquired is perpetual and exclusive against the owner, the state should be permitted to use as many instrumentalities to carry out the original purpose as public convenience or necessity may suggest. It is reasonable, because the purpose for which the land was taken is not changed; because all that can be done through all the instrumentalities selected by the state is no more than could have been done by the single company originally concerned; and because the owner is not injured by change of the medium through which the state accomplishes its purpose, except in imagination, for which imaginary injury the law gives no redress. The additional burden does not exist in respect to the adjoining laud, for the reason that not an inch of it is taken — not an inch of it is touched or excavated, and no right-was reserved to the adjoining land of access to, joint use of, or crossing over the strip that was condemned.”

The sixth proposition, that the quantity of land embraced in the right of way was fixed and determined between the parties, by the judgment of condemnation, is too plain for discussion. For the. whole of the land so embraced, compensation in full has been made, and it is unreasonable that the owner in fee should retain both the price paid and the land, or any part of it. If the land condemned exceeded the quantity necessary for the use of the road, but no objection on that accouut was made at the time, the judgment of condemnation concludes the owner in fee. If the power to condemn be abused in this inspect, the right to complain after condemnation, in fact, is in the state, not in the party who acquiesced in the act, and received compensation in full.

The seventh and last proposition is, that the non-user of portions of the right of way at the sides of the track of a railroad, is not an abandonment thereof to the owner in fee.

It was truly said in Hatch’s case, supra, that on a question of abandonment, the intention of the party is an element for consideration. No intention to abandon can be inferred against the defendant’s grantor from such a nonuser as that above named. Indeed, such non-user is merely technical and temporary. It is no evidence of an abandonment. Whenever circumstances require, the actual use of the whole right of way will become a necessity. It is a mistake to say that no part of the right of way is in use, except that covered by the track of the road. The exigencies of railroading may, at any time, require the occupation of ground at the sides of the track which has been unused for years.

It may be needed for repairs, for additional tracks, for fencing the road, etc. The law requires all railroads to be fenced. Where are the fences to be constructed and maintained? How much ground at the sides of the track is needed, for that purpose ? ■

Again, in condemning land for the purposes of a railroad, in a growing country like this, an increase in travel and traffic should be contemplated and provided for; the necessities of the present do not circumscribe the power of eminent domain. But if the grant of this power should be abused, as we have said before, after a judgment of appropriation, the power of the state should intervene to correct the evil. The present non-user of the whole of the land condemned is not equivalent to an abandonment of the whole or any part thereof. But whatever the remedy may be, it is clear to my mind, that the claim of abandonment can not be sustained by the owner in fee.

Johnson, C. J., also dissents.


source: Caselaw Access Project

author: Eollett, J.

license: Public Domain

text:
    Cincinnati Gas Light and Coke Company v. Avondale.

      Revised Statutes, sections 2478, 2485, 3552 — Statutory construction — “ Person" includes corporation — Term of franchise of gas company — Regulation of price.

    1. The words “person or persons,” as used in Revised Statutes, section 2485, include a gas company or other private corporation.
    2. Where a gas company, under the provisions of Revised Statutes, section 3552 (56 Ohio L. 92, §1), extends into a village its pipes used for conveying gas, and is vested with the right of way where such pipes are laid, and uses such pipes to convey to the village lamps, gas manufactured by such company outside the village, and uses such manufactory and pipes as one plant, such company may he regarded as established in such village, within the meaning of Revised Statutes, section 2478; and such extension of pipes may he regarded as the extension of gas-works for supplying the village with gas, within the meaning of section 2485. In such case the inhibitions of section 2478 and of section 2485 apply to the council of such village.
    3. In making a contract with a gas company for supplying gas to a municipal corporation and its inhabitants, section 2478 and section 2485 do not authorize a contract that for an indefinite period leaves to other parties the regulation of the price that shall be paid, or the quantity or quality of gas that shall be furnished.
    Error to the District Court of Hamilton county.
    The Cincinnati Gas Light and Coke Company is a corporation of Cincinnati, and was incorporated by a special" act of April 3, 1837; and the village of Avondale is in the vicinity of Cincinnati.
    The second section of the special act defines the powers of the company as follows :
    “ The corporation hereby created shall have the full power and authority to manufacture and sell gas, to be made from any or all of the substances, or a combination thereof, from which inflammable gas is usualy obtained, and to be used for the purpose of lighting the city of Cincinnati, or the streets thereof, and any buildings, manufactories, public places, or houses, therein contained, and to erect necessary works and apparatus, and to lay, pipes for the purpose of conducting gas in any of the streets or avenues of the said city.”
    The sixth section is as follows :

      “ See. 6. Any future legislature may alter, modify, or repeal this act.”
    The act of March 20, 1859, extended the privileges of the company by enacting:
    “ That it shall be lawful for any gas company, in any city or incorporated village in this state, organized in pursuance of any of the laws of the same, to extend their pipes used for conveying gas to the various localities and inhabitants of such city or incorporated village to any point, place or places, in the vicinity of such city or incorporated village, outside the corporate limits thereof; provided, the right' of way be obtained from the corporate or other authorities, or of any person or persons, place or places, to be affected by such extension.” 56 Ohio L. 92, § 1.
    The municipal code, which took effect July 1, 1869, enacted as follows:

      “ Sec. 199. All cities and incorporated villages shall have the general powers hereinafter mentioned, and may provide by ordinance for the exercise of the same. . . .
    “ 18. To provide for the laying down of gas pipes, to lay off, establish, open, widen, straighten, extend, improve, keep in order and repair, and to light streets, alleys, public grounds and buildiugs, wharves, landing • places, bridges, and market spaces, within the corporation, including any portion,of any turnpike or plank-road therein, surrendered to or condemned by the corporation.” 66 OhioL. 180,182.
    On April 27, 1871, the council of the village of Avon-dale passed an ordinance to provide for lighting the village with gas; and on May 24, 1871, a contract embodying the provisions of the ordinance was entered into between the plaintiff and the village; a part of which is as follows:
    “ Section 1. Be it ordained by the council of the incorporated village of Avondale, more than two-thirds of all the membrs concurring and deeming it necessary, that, for the considerations named in this ordinance, the Cincinnati Gas Light and Coke Company and its successors shall be, and they are, hereby vested with the full and exclusive privilege of extending its gas pipes and mains through the avenues, roads, streets, lanes, alleys, and public grounds of said village, for the purpose of conveying gas to said village and the citizens thereof, and shall have the full and exclusive power and authority to open and use the said avenues, roads, streets, lanes, alleys, and public grounds for the introduction of pipes and other apparatus for gas,” etc.
    “ Sec. 2. That the said village, at its own expense, shall procure the right to lay gas pipes or mains in the turnpike road and avenues, under the control of incorporated companies leading thereto from Cincinnati or within said village, and shall vest the full and exclusive enjoyment of said right in said roads and avenues in said company.
    “ Sec. 4. That in further consideration, of the privileges hereby granted, the said company and its successors shall furnish at said lamp posts to said village such quantity of gas as maybe required for the lighting of the public lamps, and shall clean, light and keep lighted, and in ordinary repair said lamps for the same time and price payable at the same times as said company now does for the city of Cincinnati; the .burners and other conditions being also the same as those now in use and force in said city, and the quality of gas furnished to be the same as for said city.”
    “ Sec. 5. The price at which said company shall furnish gas to the public buildings of said village and to the citizens and private consumers shall be the same for each thousand cubic feet so furnished as the prices respectively for gas furnished to the public buildings and private consumers in the city of Cincinnati, and under the same regulations and conditions.”
    (The price for gas furnished to the public buildings in the city ot Cincinnati was “ two-thirds of the lowest average px’ice at which gas shall or may be furnished to private individvala in the cities of New Orleans, Baltimore, New York, Louisville, and Pittsburgh.”)
    “ Sec. 9. The contract made under this ordinance shall terminate: 1st. Upon the annexation of said village to said city before January 1, 1880. 2d. On the first day of January, 1880, at the option of the gas company; but it is understood and agreed that in case annexation shall not have taken place as afox’esaid, and the said gas company shall continue after said January 1, 1880, to fnx’nish said city and its citizens with gas, the said gas company shall have the right to, and will continue to furnish gas to said village and its citizens at the same price, and upon the same terms and conditions as to the said city and its citizens after said date, excepting wherein this contract differs from that of the city, and said company to pay interest on said cost of mains as afox’esaid to said village. And should the gas company, at the termination of its contract with the city of Cincinnati, fail to furnish gas to Avondale, then it will abandon to said village its right to supply gas under this contract. Gas to be continued to be supplied at same prices to public and private consumers as the city and citizens of Cincinnati pay for the same.”
    After the execution of the contract the company furnished gas-mains, pipes, and lamp posts; and up to Mai’ch 1, 1879, it furnished gas for the public lamps to burn from sunset to sunrise, and was paid therefor by the village, as agreed. On February 13, 1879, the council of Avondale passed “ an ordinance to fix the quantity of gas required to be furnished for the public lamps in the village,” and provided that the “ quantities of gas for the lighting of the public lamps, in pursuance of the contract between the village and said company,” should be, to burn from about sunset of each day until one o’clock the next mox’ning. Of the passage of this ordinance the village notified the company on February 14, 1879 ; but the company continued thereafter, down to the commencement of this suit, to light the public gas lamps in said village, and burn them from sunset to sunrise, and monthly the plaintiff rendered accounts thereof to the defendant, which the defendant refused to pay, but the defendant offered to pay for the quantity of gas furnished in accordance with the requirements of the ordinance of February 13,1879, as above set forth, and demanded accounts thereof, which the plaintiff refused to render.
    The defendant having refused to pay for the gas furnished according to the all night time table, the plaintiff brought the present action to recover the amount due it on the account for supplying with gas, lighting, extinguishing and keeping in order the public lamps of the defendant, as per time table and contract, from March 1,1879, to May 1,1880.
    The village denied the validity of the contract, and set up the ordinance of February 13, 1879, and offered to pay for the gas furnished during the hours specified in that ordinance whenever bills for the same should be presented.
    On trial in the common pleas court plaintiff recovered for the full amount claimed in the petition; and on error-the district court reversed that judgment because it included the excess above that required by the ordinance of February 13, 1879, and remanded the case for a new trial. At the November term, 1883, the case was again tried, and judgment was rendered for the company as if the amount of gas furnished had been only that required by the last ordinance of the village (the value of which the parties agreed to), but without interest or costs. On error, the district court affirmed the judgment of the court of common pleas, and the company now seeks to reverse the judgments of the district court, and for judgment for all the gas furnished and for interest thereon and costs of suit.

      F. A. Ferguson; Lincoln, Stephens &; Lincoln; Paxton Warrington and R. A. Harrison, for plaintiff in error.
    The power of the village to contract-for gas as a means of lighting the public lamps is not disputed. Roth parties were competent to contract about the subject-matter.
    Whether the contract of a municipal corporation is ultra vires depends upon whether the statutes relating to its powers forbid it entering into the agreement. Payne v. Mayor of Brecon, 8 Hurl. & Nor. 572.
    The ordinance was not passed in the exercise of the legislative powers conferred for purposes of police regulation or municipal government, but in the exercise of the power to contract. It was a contract ordinance. Western College v. Cleveland, 12 Ohio St. 375, 377 ; Dayton v. Pease, 4 Ohio St. 80, 100. With reference to purely political or governmental powers of municipalities the legislature is omnipotent. But this is not so as to its proprietary interests. Board of Park Comm’rs v. Common Council of Detroit 28 Mich. 228.
    A municipal corporation may contract in the capacity of a private corporation independently of its powers of'local sovereignty. West. Sav. Fund Soc. v. Philadelphia, 31 Pa. St. 175, 183; Gas Co. v. San Francisco, 9 Cal. 453, 468, 469; City of Quincy v. Bull, 106 Ill. 337.
    The defendant can not be permitted to repudiate the obligations which the contract imposes and at the same time take the benefits which it confers. Bristow v. Whitmore, 9 Ho. Lords Cases, 404; Broom’s Leg. Max. 635.
    By the construction of the contract claimed by the defendant, the plaintiff is left bound by all its stipulations; bound to six per cent, on the cost of mains, etc., to light, keep lighted, clean, extinguish, and keep in order the public lamps, and to repair the mains and connections, while the defendant is required to take only so much gas as it may choose, at such price as it may fix. Such, we submit, is not the law of the case; but, on the contrary, so long as the defendant claims the benefits of the contract, it is bound to perform its obligations.

      All obnoxious features that may be held to be embraced in the contract are severable from the other portions of the. contract, or are so far executed that they can not be used to defeat a just demand based upon past services rendered in good faith. State v. Cin. Gas L. & C. Co., 18 Ohio St. 262; Hitchcock v. Galveston, 96 U. S. 341; United States v. Fort Scott, 99 U. S. 152-9; City of Quincy v. Bull, supra; City of East St. Louis v. East St. Louis Gas L. & C. Co., 98 Ill. 415; Argenti v. San Francisco, 16 Cal. 256; West v. Errol, 58 N. H. 234.
    “While courts are inclined to maintain with vigor the limitations of corporate actions, whenever it is a question of restraining the corporation in advance from passing beyond the boundaries of their charters, they are equally inclined, on the other hand, to enforce against them contracts, although ultra vires, of which they have received the benefit.” Greene’s Brice’s Ultra Vires, 372, and note. And see also Larwell v. Hanover Savings Fund Soc., 40 Ohio St, 274; Bissell v. M. S. & N. I. R. Co., 22 N. Y. 259; Parish v. Wheeler, 22 N. Y. 494, 506, 507; Whitney Arms Co. v. Barlow, 63 N. Y. 62-68; Rider Life Raft Co. v. Roach, 97 N. Y. 378; Bradley v. Ballard, 55 Ill. 413 ; Darst v. Gale, 83 Ill. 136, 137; National Bank v. Stewart, 107 U. S. 676 ; National Bank v. Whitney, 103 U. S. 99; National Bank v. Matthews, 98 U. S. 621; Mining Co. v. Bank, 96 U. S. 640.
    The case presented is outside of estoppel. It lies in contract. The recovery asked is upon the contract. The question .is one of construction and not of estoppel. The instrument to be construed, when stripped of its unessential and its executed parts, does not require us to ask the court to sustain an exclusive grant, or to urge that the term of the grant is perpetual, or to argue that the council had the right to barter away legislative power. Those features are totally irrelevant, because: (1) So far as they exist they are severable from the other parts of the contract, and may, with propriety, be eliminated and restricted; (2) the grant to construct the gas plant, although exclusive in form, was merged in the performance of tlie covenant of the village to purchase the plant; (3) after the merger, if the expression be allowed, a contractual relation remained between the parties, which iuvolved only the power of the village to receive and use, and of the company to convey, gas through this plant in specified quantities for an agreed price, during a period involving at least ten years from the date of the contract; and, (4) every principle of justice requires that this contract shall be treated as having continued inviolable, at least to the end of the time that the gas sued for was furnished; and, indeed, that it shall be so treated until the whole contract is renounced.
    Stallo, Kittreclge § Wilby, for defendant in error.
    The first section of the contract attempts to vest the plaintiff and its successors “ with the full and exclusive privilege of extending its gas pipes and mains through the avenues, roads, lanes, alleys, and public grounds of said village.” But this court held, in State v. Cincinnati Gas L. & C. Co., 18 Ohio St. 262, that the council of a municipal corporation could not grant such an exclusive right. And see also The Cincinnati Street R. Co. v. Smith, 29 Ohio St. 291.
    The ordinance embodying and, it is claimed, validating the contract is, in terms, irrepealable; it can not be changed or modified without plaintiff’s consent; and it is not to terminate, except at plaintiff’s option, unless Avondale is annexed to the city of Cincinnati; but even such annexation can only take place upon conditions specified in the contract.
    No principle is better settled than that neither a state legislature nor a municipal body can enact irrepealable laws or ordinances, or embarrass or restrict its continuous legislative powers and duties by contract. Cooley Const. Lim. 251; Richmond Gas L. & C. Co. v. Middletown, 59 N. Y. 228; Dillon Mun. Corp., § 97.
    The contract is not impugned or questioned by reason of some irregularity or defect in its execution, but on the ground that the making of such a contract was wholly beyond the power of the village council, and, moreover, was expressly forbidden by law. Nothing is better settled than the doctrine that there is no estoppel against the defense of ultra vires. To say that municipal bodies can estop themselves by acts in pais from denying the validity of contracts, which it was beyond their power to make, is to say that thejr can do indirectly what they have no power to. do, or are forbidden to do, directly; that the powers of a municipal corporation can be enlarged by the corporation itself. The simple statement of such a claim is its own refutation.
    See Bigelow on Estoppel, 466 ; Schaeffer v. Bonham, 95 Ill. 368 ; McPherson v. Foster, 43 Iowa, 48; South Ottawa v. Perkins, 94 U. S. 260, 267.
    As to the construction of the contract, it is readily seen that the question of construction is closely connected with that of the validity of the contract. When a contract is susceptible of two different constructions, one of which would render it valid and the other void, the latter must be adopted. James v. Pruden, 14 Ohio St. 251; 5 West. Law Monthly, 187.
   Eollett, J.

There is no question here as to the powers of the company, which were ample; or as to the power of the village to make a contract with the company to light its streets and public places; and the plaintiff does not complain of any thing prior to March 1,1879. The plaintiff claims that by the terms of the contract of April 27, 1871, the defendant must permit its street lamps to burn plaintiff’s gas from sunset to sunrise, and must pay plaintiff for the same. The defendant claims that, under the statutes of Ohio, it may require the burning of these lamps to cease at one o’clock in the morning, and that it need not pay for the gas consumed against its wish and in violation of its ordinance.

Whatever contract the council of Avondale legally made is binding on the defendant and must be performed ; but if the council that entered into the written agreement exceeded its authority and had no power to make the contract set out, the defendant is not bound by the illegal ' terms of the same.

Whatever may have been true of municipal corporate charters in mediaeval times as to their being treaties between feudal lords and commercial communities, in this country a municipal corporation isa public corporation created by the state for political purposes, and it has subordinate and local powers, and such powers only as are expressly granted or necessarily implied.

Its legislative powers can not be delegated or bargained away. “Such corporations may make authorized contracts, but they have no power, as a party, to make contracts or' pass by-laws (ordinances) which shall cede away, control, or embarrass their legislative or governmental powers, or which shall disable them from performing their public duties.” Dill. Mun. Cor., § 97.

Of course the council of a municipal corporation has no power to bind the corporation in matters expressly prohibited by the state.

At the time this agreement was entered into, the following statutes were in force. (Rev. Stats., § 2478): “ The council of any city or incorporatéd village, in which gas companies, or gas-light and coke companies, maybe established, are hereby empowered to regulate, from time to time, the price which such gas or gas-light and coke companies may charge for gas furnished by such companies to the citizens, public grounds and buildings, streets, lanes, alleys, avenues, wharves, and landing places,” etc.

Section 2479 provides that the council and the company may fix and agree upon a price for a period not exceeding ten years and in such case the council can not require gas at a less price during that period.

Section 2485. “ It shall not be lawful for any council to agree by ordinance, contract, or otherwise, with any person or persons, for the construction or extension of gas-vmrks, for manufacturing or supplying the corporation or its inhabitants with gas, which shall give or continue to any person or persons making such agreements with the council the exclusive privilege of using the streets, lanes, commons, or alleys, for the purpose of conveying gas to the corporation, or the citizens thereof, or which shall deprive the council of the right to designate the kind of meter to be used for the correct measurement of the gas furnished under such agreement, and to provide for inspecting or regulating the same, or which shall not specify the exact quality of the gas to be furnished, and reserve to the council the right to enforce an exact compliance with such specification, under such rules as the council may pz’escribe,” etc.

The contract in this ease assumes to grant to the company the exclusive privilege of extending its gas pipes and mains through the avenues, roads, streets, lanes, alleys, and public grounds of the village for the puz’pose of conveying gas to the village lamps and to its citizens; and to grant the exclusive power and authority to introduce its pipes and other apparatus for supplying gas ; and to provide that the quality of the gas fuzmished should be the same as for the city of Cincinnati (over which Avondale had no control), and that the pi’ice should be the same as in Cincinnati and under the same regulations and conditions, and those wez’e govezmed by the lowest average prices of gas paid in New Orleans, Baltimore, New York, Louisville, and Pittsburgh.

Section 2479 does not benefit the plaintiff as to price, for the eonti’act was not limited to or within ten years, or any number of years, but was to continue indefinitely, at the option of the company; and it seems clear that, if sections 2478 and 2485 apply to this case, the contract is ultra vires.

In construing statutes so as to give them the legislative intent, intez*pi’etation may expand their meanizzg beyond the literal significance of the words. In each case regard must be had to the subject and the circumstances, as well as to the words used. Reg. v. Collingwood, 12 Ad. & E. 681, 686; Miller v. Salomons, 7 Exch. 475; Bish. Stat. Cr., §§ 190, 120; Tracy v. Card, 2 Ohio St. 481, 441.

The act of March 20, 1859, which authozúzed gas companies to extend pipes for conveying gas into cities and villages in the vicinity, was in force when, on May 7, 1869, sections 2478 and 2485 were enacted; and there is no statute prohibiting their application to companies or individuals making such extensions. Section 2485 provides that: “ It shall not be lawful for any council to agree, by ordinance, contract, or otherwise, with auy person or persons, for the . . . extension of gas-works for . . . supplying the corporation or its inhabitants with gas,” etc.

Here the word “person” includes this gas company; and, in terms, the section relates to contracts and ordinances for the extension of gas-works for supplying the village and its inhabitants with gas.

Extend means to draw forth or stretch, to prolong, especially in a single direction, as a line. Extension is the act of extending or stretching out. Gas-works are extended when the mains and pipes are prolonged into a village so as to supply the village and its inhabitants with the gas of such works.

If gas-works used only for manufacturing gas do not include the mains and pipes that convey the gas to the lamp posts and to the consumer (as perhaps they may not), gas works for supplying gas “ at the lamp posts in the village ” do include the mains and pipes through which the gas is furnished by a company that owns the whole plant, including the rights of way where the same are laid, as in this case. It is admitted that the council of the city or village, where the gas company has its whole plant established, is within the provisions of section 2478; and no principle or reason has been shown why the same provisions should not apply, and do not apply, to the council of a city or village in which the company has one-half of its plant, or any smaller part thereof, when contracting with such company to supply gas to such city or village. In each case the same principles apply, and the same rights are sought to be secured, and similar wrongs are provided against. Sections 2478 and 2485 and their pi*ovisions do apply to these parties and to this agreement. Hence we see that the council exceeded its powers in agreeing to grant to the company an exclusive privilege (The State v. The C. G. L. & G. Co., 18 Ohio St. 262), and in agreeing to place beyond the control of the village the price and the quality of gas, as well as the quantity the village would require in future; and the agreement is ultra vires and void.

The company was bound to know the law and the powers of the council, and there is shown no principle or act of estoppel that prevents the village from now setting up such want of power in that former council, or that es-topped the village from disregarding, in future, and after due notice, any part or all of that contract. The council had power to pass the ordinance of Eebruary 13, 1879, specifying the quantity of gas required by the village for the street lamps.

It is admitted that the village paid for all the gas it received up to March 1, 1879, under the contract, and now the village must pay a reasonable price for the gas received and used by it under that ordinance of February 13, 1879, not because of the contract, but because the village has used the gas.

The amount of gas so used under this ordinance has been agreed upon by the parties, and its value has been fixed by them at $6,331.29. This sum we regard as correct, but it is subject to a credit of $2,000, paid December 2, 1879.

The answer avers that at all times the defendant has been ready and willing to pay for the gas furnished the village up to one o’clock in the morning, as specified in the ordinance of February 13, 1879. But that was not a tender of what was due, and did not stop or prevent interest;“ and interest should be allowed on any sum due from the time the same became due.

The plaintiff is also entitled to costs in the case (Rev. Stats., § 1319).

There was error in the judgment as to the interest and costs, and for such error the

Judgment is reversed, and the cause is remanded, with instructions.