191 N.E. 903 | Ohio Ct. App. | 1934
Lead Opinion
The Colonial Furniture Company, the plaintiff in the court of first instance, prosecutes error to this court, complaining of an adverse judgment entered against it by the trial court without the intervention of a jury, by which it was denied damages. It is here forcefully urged that the judgment is against the manifest weight of the evidence and is contrary to law.
The plaintiff pleads that it is the owner of a perpetual leasehold estate located on Ontario street, in the city of Cleveland, in which it conducts a retail furniture business, and that on March 1, 1928, the defendant took possession of the street, tore it up, and excavated it to a depth of eighty feet, and that from that date until May 1, 1930, the plaintiff's business was subjected to a terrific din and a constant shower of dust and dirt; and that this work, together with the maintenance of a high board fence at the curb, deprived the plaintiff of its right to ingress and egress, and to light and air, and that thereby the rental value of the plaintiff's estate was damaged in a considerable amount, for which it has not been compensated. The plaintiff further pleads that the conduct of the defendant was "unnecessary, unreasonable, negligent and unlawful, an invasion to and infringement of plaintiff's constitutional rights, and a taking of its property without due process of law."
The defendant company answers, saying that it is a union depot company incorporated under the laws of Ohio, and that as such it contracted with the city of Cleveland for the construction of its terminal and the *401 building of a tunnel under Ontario street as necessary incidents of the total plan. It is also averred that by initiated ordinance and several ordinances amendatory and supplemental thereto the people and the council of the city of Cleveland had authorized the work to be done, and had thereafter issued its permits to the defendant to so do. The defendant further says that it employed an experienced and responsible contractor, who, in accordance with a plan reasonably designed, performed the work at the minimum expense, expenditure of time, and danger to the traveling public and the abutting owners, and with minimum interference with the ordinary uses of the street; and that all that was done from the standpoint of plan, method, and time was reasonably necessary to the accomplishment of the ultimate purpose. It is also alleged that the damages suffered by the plaintiff were different only in degree and not in kind from those suffered by the public generally, and that the obstruction and incroachment on the street were neither unreasonably imposed nor unnecessarily prolonged.
The reply admits the organization of the defendant, the passage of the ordinances, and the issuance of the permits, but avers that any such authorization is in derogation of Article
From the voluminous and controverted evidence in this action the trial court found that the open plan of construction carried on in Ontario street was performed without negligence, and without unreasonable or unnecessary delay, and that the method of construction adopted was reasonable and proper under all the circumstances. This conclusion reached by the trial court, which is supported by much creditable evidence, has cast around it the same sanctity that assures repose to a jury's verdict on the facts, for which a *402 reviewing court may not substitute its judgment. It therefore remains for this court to determine whether the judgment entered on the conceded facts — that is, that plaintiff did suffer a temporary damage to its leasehold estate by reason of the improvement's interference with its right of ingress and egress to and from its premises and was deprived of light and air — is contrary to law and deprives plaintiff of its property rights without compensation therefor.
The legal question presented may be thus stated:
May a public service corporation, to wit, a union depot company organized for private profit, and expressly authorized by statute to undertake the accomplishment of its purpose of creation, which has been found conducive to public necessity and convenience, enter into a contract, sanctioned by statute, with a municipality which is to pay no part of the cost of the improvement, and is thereby permitted by the municipality to occupy its streets during construction, which causes incidental and temporary damage to an abutting owner by limiting his property's accessibility and impairing his right to light and air, and subjecting it to noise and dirt, all necessarily incident to the construction process, be held liable for such damage, in the absence of a negligent prosecution of the work or any undue protraction thereof, when the plan pursued is reasonable and designed to accomplish the project at a minimum of expense to the utility and a minimum of time and danger to the public, where there is no direct encroachment upon or actual taking physical possession of the private property of the abutting owner?
The question is further made in this action as to whether or not a terminal subway creates an additional servitude upon the street, and we deem it expedient to first consider that subject in view of what may be hereinafter concluded. It is in evidence that this subway is not only to carry into and from the *403 terminal station trains operating between Cleveland and other cities, but is also to accommodate rapid transit trains operated within the city for the benefit of its citizens; in which latter respect its use is analogous to street railway service. All these trains are to be operated by power other than steam.
It is settled in this state that steam railroads and elevated roads are an additional burden on a street's use, and that street and interurban railways are ordinarily not such an additional burden. We are unable to find that Ohio courts have ever given expression to a view as to which category terminal companies and subways belong. In 10 Ruling Case Law, 106, Section 92, it is stated as a general rule that subways are not an additional servitude. This view is found ably discussed in the case of Sears
v. Crocker,
The defendant first directs our attention to the early and oft-cited case of Clark v. Fry,
In the interest of collecting authorities we could with ease unduly prolong this opinion, but this is not our purpose. We shall, however, adopt the language of several courts, among which is that to be found in Atwater v. Trustees of Village ofCanandaigua,
This, to our notion, well states the general rule, with the reservation, of course, that the utility constructed or permitted be not purely a proprietary function. The case of NorthernTransportation Co. v. City of Chicago,
The plaintiff makes the claim that the immunity of a public body extends no further than to one who contracts with it for the performance of the work to be done for it, and not to one like the defendant herein, who constructs and operates a public utility under a permit for its own personal profit. It is well recognized that operations of public utilities are of two kinds: that is, those that are publicly and those that are privately owned. We are unable to appreciate any such distinction. The privately owned utility serves the people of the political subdivision wherein it operates with its permission and under its direction. It affords a service which perhaps the public body could not furnish by reason of financial inability. An instance of such character is to be found in those companies which explore for natural gas and transport it for great distances. To say that such a public servant might not repair its lines in the streets of a city which it serves without constant fear of restraining orders *406 and damage actions for causing inconvenience to abutting property owners would be to make such service and convenience impossible. Such public servant only operates by legal sanction, and, so long as it employs a reasonable and practical method of construction or repair, without unnecessary protraction or negligent prosecution, it should be immune from damages for temporary inconvenience to abutting owners.
Article
The
But one further inquiry remains. Do the statutes of this state provide that an abutting owner be compensated for temporary interference with his street easement? Plaintiff directs our attention to Section *407 3714, General Code, which provides that municipalities shall keep their streets open, in repair, and free from nuisance. This section also empowers a municipality to regulate the use of its streets in the manner provided by law. The law provides that it may contract with terminal companies and provide for temporary interference with traffic when necessary in the construction of tunnels. Section 9163, General Code. Such construction is not a nuisance as herein previously indicated.
Section 8765, General Code, pertains to steam railroad tracks laid upon or over a street, and provides that in such case such a company shall be responsible for injury done to private property. This statute makes no mention of any such compensation when tracks are placed below the surface grade.
Section 9146, General Code, has to do with interurban railroads and provides for payment of damages to nearby property owners when such company elevates or depresses its tracks. The defendant, however, is not an interurban railroad company.
The defendant points out that Section 9163, General Code, which provides for construction of terminals by union depot companies, makes no mention of damages for any interference with adjoining properties. But the plaintiff counters with the claim that Section 9167, General Code, gives such a right of compensation to those who suffer inconvenience. That section reads: "The company controlling and operating such union depot and terminal property shall be liable to the public and persons who contract with such company, for all contracts made and damages caused by it, and for all damages, costs, and expenses which arise from the fault or neglect of its officers and employees."
The terms of this act clearly indicate that this section does not apply to the construction period of a terminal project. It makes no reference, as do other *408 related sections commented upon, to damages to nearby property interfered with at construction; but rather fixes liability upon the operating company for contracts made and damages caused by it as an operating company.
That portion of Section 9162, General Code, pertaining to the power and privileges of union depot companies, refutes the plaintiff's claim made for Section 9167, General Code. Section 9162 says that such companies "Shall have all the powers given to railroads by the laws of this state, for the purpose of acquiring, constructing and operating its depot, tracks and terminals." Section 8765, General Code, previously considered, is to be found in Chapter 1, Subdivision I, Division II, Title IX, Part II, Railroads, and is styled "Special Powers." It therefore follows that in construction union depot companies have the same rights and immunities possessed by railroads in the matter of responsibility to nearby grounds.
We find no statute which gives the plaintiff a right to recover damages for the inconvenience suffered and for loss in rental values.
We would in conclusion direct attention to two Ohio courts which have applied the principal rule herein adopted, the case ofGlidden v. City of Cincinnati, 4 O.D. (N.P.), 423, 30 W.L.B., 213, 11 Dec. Rep., 853, and Dowling v. Dayton Union Ry. Co., 30 N.P. (N.S.), 129. The Court of Appeals report of the last-noted case is to be found in 13 Ohio Law Abs., 606.
Judgment affirmed.
Concurrence Opinion
BLOSSER and MIDDLETON, JJ., of the Fourth Appellate District, and SHERICK, J., of the Fifth Appellate District, sitting by designation in the Eighth Appellate District. *409