Cincinnati ex rel. Bettman v. Cincinnati Trac. Co.

Citations

• 26 Ohio C.C. Dec. 597
• 25 Ohio C.C. (n.s.) 513

Syllabus

<p>MUNICIPAL CORPORATIONS — RAILWAYS.</p> <p>1. Power for Elimination of Grade Crossings Continuing Without Limitation of Traction Company Franchise.</p> <p>The authority vested in municipalities for the elimination of grade crossings is a police power which is continuing in its nature and is in no way limited by the franchise of a traction company whose tracks occupy the street.</p> <p>2. Municipality Contracting With Steam Railway for Elimination of Grade Crossing need not Consider Street Railway.</p> <p>A municipality in contracting with a steam railway company for the elimination of a grade crossing is not bound to make the traction company occupying the street a party thereto, but may proceed with the improvement without notice to such company.</p> <p>3. Street Railway Franchise no Limitation on Power to Change Grade.</p> <p>A street railway franchise in the street in no way limits the right of the municipality to change either the grade or' the location of the street as the public necessity or convenience may require, particularly where the reasonableness of the change is not questioned, and the traction company must adapt its tracks to the changes so made.</p> <p>4. Reasonableness of Assessing Street Railway One-Half Municipal Expense of Grade Crossing Elimination.</p> <p>The grade crossing in the instant case was eliminated by the building of a viaduct. Sixty-five per cent, of the cost was paid by the steam road and thirty-five per cent, by the city. The city then obtained a judgment, based upon a verdict, against the traction company occupying the street for its share of the cost of the improvement, which was fixed at $61,220.09, which was something less than one-half of the share paid by the city. Held:</p> <p>That in view of the evidence and all the circumstances surrounding the improvement and the benefit to and the saving which it will effect for the traction company, the proportion of the cost which it is asked to pay is reasonable, and a judgment is a