T. B. Townsend Brick & Contracting Co. v. Central Trust Co.

Citations

• 187 F. 63
• 109 C.C.A. 381
• 1911 U.S. App. LEXIS 4483

Syllabus

<p>1. Railroads (§ 75*) — Powers—Use of Streets bt Railroads — Ohio Statute — “Manner, Te^ms, and Conditions.”</p> <p>Under Rev. 'St. Ohio 1880, §§ 3270, 3281, 3283, which invest railroad companies directly with the right to appropriate and use the streets of a city for railroad purposes by condemnation proceedings, unless the company and the municipal authorities agree “upon the manner, terms, and conditions upon which the same may be used or occupied,” construed in the light of the settled rule in Ohio that municipal corporations possess such powers only as are expressly granted by statute or are Implied as essential to the exercise of granted powers, and of section 3375, authorizing railroad companies for hauls of less than 30 miles to receive such rates as may be from time to time fixed by the company or by law, the power given to a municipal corporation by section 3288 to agree upon the manner, terms, and conditions upon which streets may be used is limited to such agreement as relates directly to such use and occupation, and a provision in an ordinance prescribing rates to be charged by a belt line road for hauls over its entire line, less than 30 miles long, .as a condition to granting right of way over the streets for a part of its line, is ultra vires and void.</p> <p>[Ed. Note. — For othe.r eases, see Railroads, Dec. Dig. | 75.*</p> <p>For other definitions, see Words and Phrases, vol. 5, pp. 4333-4337.]</p> <p>2. Railroads (§ 75*) — Use of Streets.</p> <p>Where, under the state statute, a railroad company is authorized to occupy and use the streets of a city independently of municipal consent, and where the city in granting its consent has sought to affix a condition in the interest of its own inhabitants and all other patrons of tie railroad company, which is beyond the scope of its authority, in an action brought by an individual claiming the benefit of this provision, the railroad company is not estopped from relying on the ultra vires character of the