Wabash Railroad Co. v. Defiance
167 U.S. 88 (1897)

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U.S. Supreme Court

Wabash Railroad Co. v. Defiance, 167 U.S. 88 (1897)

Wabash Railroad Co. v. Defiance

No. 239

Argued March 25-26, 1897

Decided May 10, 1897

167 U.S. 88

Syllabus

In 1887, the municipal authorities of Defiance authorized the erection of bridges over the Wabash Railroad, and about eighteen feet above its track, by the railroad company, to take the place of two existing bridges. In 1893, the Common Council of Defiance changed the grade of the streets crossing on said bridges to the level of the railroad, and changed the approaches to it by causing them to descend to the level of the railroad. Held that the common council acted within its powers in changing the grade of the streets in question, and that the railroad company had no legal right to complain of its action.

The legislative power of a city may control and improve its streets, and a power to that effect, when duly exercised by ordinances, will override any license previously given by which the control of a certain street has been surrendered.

In this case, it was purely within the discretion of the common council to determine whether the public exigencies required that the grade of the street be so changed as to cross the railroad at a level.

This was a petition, in the nature of a bill in equity, originally filed in the Court of Common Pleas for Defiance County, Ohio, to enjoin the City of Defiance from proceeding with a contemplated improvement of North Clinton Street and Ralston Avenue, by which those streets would be so graded as to necessitate the removal of certain bridges erected by the plaintiff over its roadway where it crosses those streets, and also the approaches constructed by the plaintiff to those bridges.

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

On December 20, 1887, the City Council of Defiance passed

Page 167 U. S. 89

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

Page 167 U. S. 90

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

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

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

Plaintiff averred in this connection that the sole purpose of these ordinances was to cause the overhead bridges and the approaches thereto to be destroyed and removed, and the crossing of said highways reduced to a crossing of the same grade as the railway tracks; that if the city is allowed to carry out its purpose, such crossings will be extremely dangerous

Page 167 U. S. 91

to all persons having occasion to use the same, by the fact that the roads will approach the tracks at a steep downward decline on both sides; that the railway track at these points is on a heavy grade, which renders it very difficult to control the speed of trains, and that the danger of a grade crossing will be vastly increased. Plaintiff further averred that since the year 1856, its railway track had been crossed by said highways by overhead crossings, consisting of bridges about eighteen feet in the clear above the level of the tracks.

"That said highways then, as now, crossed the railway track at points near together, to-wit, about 196 feet, and converge so as to meet at a distance of 70 feet from the railway right of way. That the railway track at said crossings lies in a deep cut, about eleven or twelve feet below the natural surface of the ground, and is on a heavy downgrade and curve; and, on one of said highways, buildings are so located as to almost, if not entirely, cut off the view of approaching trains from persons approaching said track from the southerly side of the same. That if said crossings are reduced to grade, as proposed by said ordinances, the approaches to said track will be down a steep inclined plane on both sides of said track, on both said highways, so that at said crossings the said highways will be cut to a depth of about eleven and one-half feet below the adjacent lands. That it will be almost, if not quite, impossible for heavily loaded teams to stop for trains when approaching said track, and that, by reason of the deep cuts, both of said railway and highways in which said crossings will be located, and of the curve and grade of said railway at said points, the sound of any signal and the sound and sight of approaching trains will be cut off, and said crossings will be excessively difficult, and dangerous to the lives of persons crossing plaintiff's track along said highways, and to the lives, limbs, and property of its passengers and patrons being carried on the trains of the plaintiff, on account of unavoidable accidents and collisions there happening, and that thereby there will be cast upon the plaintiff an additional burden and liability to its said passengers and the public. That the natural conformity of the lands at said

Page 167 U. S. 92

crossing is such as to make overhead bridge crossings of said public highways over plaintiff's said track absolutely essential to the public safety."

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

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

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