of action against the defendant was "the false report, and nothing else;" that it was "the cause of his liability;" and (2) that it "arose in Monroe county"-the one in which the report was filed. The court below was accordingly held not to have had jurisdiction, and its action was reversed. See also, Dunham v. Spence, 8 L. R., 6 Ex., 46, in which it was held that "where a promise of marriage was made outside of England, and the breach took place in England the cause of action arose in England." Hover v. Pa. Co., 25 Ohio St. 667.

These cases, it is agreed are not to the exact point under consideration. But do they not strongly tend to the proposition that the locus of the person whose act or failure to act is the wrong complained of, is also the place of the wrong itself, and consequently, of the cause of action, if that be the wrong? This seems to me quite clear, and is therefore held to be the principal which is controlling, in a case of this kind. Moreover, it brings the law into accord with the reality. The breach of a contract by which a party is obligated to do a certain thing that he fails to perform, is certainly a personal act, though of negative kind. Hence, if that act is a wrong, and the wrong be a cause of action, the latter arose where the person was when the breach occurred. Further, the contrary view involves what appears to be an absurd consequence For if, in this case, the cause of action were held to have arisen in Illinois, where neither of the parties has been, as the record shows, and where therefore no action could be brought, we would have the curious condition of a cause of action in a place where there was no right of action. For, says Lord Holt, in Ashley v. White, "want of right and want of remedy, are reciprocal." Hover v. Pa. Co., supra.

V. From the nature of the action, then, the character of the wrong complained of, and the residence of the parties, the cause of action set out in the petition must be held to have arisen in this state, and not in Illinois. The finding therefore is that the demurrer is well taken, and it is accordingly sustained.

STREET RAILWAYS.

[Cuyahoga Common Pleas.]

F. W. PELTON ET AL. v. East Cleveland Railroad Co.

1. The consent of abutting lot-owners upon a street occupied by a street railroad is not required, and is not a condition precedent to the right of the council to grant a renewal of the franchise of such street railroad company, under sections 2501 and 2502 of the Revised Statutes.

2. In the operating of a street railroad, the change in the motive power from horses to that of electricity applied by means of the overhead wire system, does not constitute a new and additional burden upon the street, entitling abutting lot-owners to compensation before such change is made; or to an injunction to prevent such change.

STONE, J.

The plaintiffs (about one hundered and twenty-five in number) seek in this proceeding to enjoin the East Cleveland Street Railroad Company from applying and operating the electric system of motive power in the running of its street cars, now in use on its road east of Wilson avenue 4 LB 35

to the easterly limits of the city of Cleveland, on its line and tracks west of Wilson avenue, extending along Euclid avenue to Case avenue, thence along Case avenue to Prospect street, thence along Prospect street and to the Public Square.

This railroad company was incorporated in 1859, and constructed its road under the provisions of a general ordinance of the city of Cleveland, regulating the construction and operation of street passenger cars drawn by horses or mules, passed September 20, 1859. It had the consent of the city council, and the requisite number of property-owners owning property abutting on the streets named, to construct a single track road, with all the necessary turn-outs and switches, and it was so constructed and operated until 1873, when the city council authorized the company to lay a second or double track along the streets named, and the majority of abutting property-owners gave written assent thereto.

In 1879, its charter being about to expire, the railway company applied to, and obtained from the city council by ordinance, a renewal of its charter or grant, to maintain and operate its railroad in all the streets named, for the further period of twenty-five years. The assent of the abutting property-owners to this renewal of the grant, was not asked for or given. On the thirteenth of July, 1888, the city council passed an ordinance granting to the East Cleveland Railroad Company, then operating its cars by horse power, the right to erect and maintain poles and wires and all necessary appliances for producing and conducting currents of electricity as the motive power in operating its cars on that part of its line on Euclid avenue east of Wilson avenue to the city limits, and on its Cedar avenue branch east of the Cleveland & Pittsburgh R. R. crossing.

Section 8 of this last named ordinance, provides that "whenever the council shall so require, the said company shall use the same system as herein provided, on the entire length of its main and Cedar avenue lines.” This ordinance was accepted by the railroad company, and in pursuance thereof, it erected its electrical plant, and ever since has operated its cars by electricity over the parts of its road so authorized.

On the thirteenth of May, 1889, the city council by resolution, authorized the railroad company to extend the use of its electrical system westerly, over that portion of its road now in controversy. This resolution was accepted by the company, and it proceeded with the placing of wires along its track, until interrupted by the restraining order in this case.

The assent of the property-owners along the road west of Wilson avenue, to the proposed change from animal power in moving cars to that of electricity applied by the overhead wire system, was never asked or given. It is now contended by the plaintiffs, who are owners of property abutting on Prospect street, Case and Euclid avenues between Wilson avenue and Erie street, that this company is proceeding illegally and without lawful authority, and,

I. It is said there is no lawful renewal in 1879, of the grant to operate this railroad for the further period of twenty-five years; that the renewal of the grant is essentially a new contract to be fixed by ordinance, which the city council could no more enter into or grant without the consent of the abutting lot-owners, than it could grant the right to construct the railroad in the first instance without their consent.

Section 2501 of the Revised Statutes, provides in substance, that "no corporation, individual or individuals shall perform any work in the construction of a street railroad, until application for leave is made to the council in writing, and council by ordinance shall have granted per

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mission and prescribed the terms and conditions upon, and the manner in which, the road shall be constructed and operated. * * * And cities of the first and second grade of the first class, may renew any such grant at its expiration, upon such conditions as may be considered conducive to public interests."

The next section (2502), provides in part, that "no ordinance for such purpose shall be passed, ** * and no such grant shall be made, except to the corporation, individual or individuals that will agree to carry passengers upon such proposed railroad at the lowest rates of fare, and shall have previously obtained the written consent of a majority of the property-holders on the line of the proposed street railroad, represented by the foot front of lots abutting on the street along which such road is proposed to be constructed," etc.

It seems clear that the ordinance provided for in the section first quoted (2501), has reference only to the original construction of the railroad; that it means simply this: Before any street railroad shall be constructed, city council shall, by ordinance, grant permission and prescribe the terms and conditions of such construction and operation, but that the council may renew such grant at its expiration, upon such terms as shall be conducive to public interest. Then the next section (2502), says that no ordinance or grant for such purpose shall be passed or made, without first obtaining the consent of a majority of the abutting propertyowners, represented by the feet front upon the street along which the road is proposed to be constructed.

This consent very clearly has only to do with, and is required only in cases of original occupancy of a street for a street railroad and original construction, and not to the renewal of a grant.

In the case of the State of Ohio on relation of the prosecuting attorney against The East Cleveland Railroad Company, 8 Circ. Dec., 471, recently decided by the circuit court of this county, that court in considering the rights of this railroad company in respect to its Garden street branch, gave construction to these sections of the statute in these words, Upson, J.: "It seems to us that the natural construction of the language restricts the operation of those provisions of section 2502 to which I have referred, to the ordinance, which is the only ordinance mentioned in section 2501, providing for the original construction of a street railway. It was not intended by the legislature that upon a renewal of such a grant either a publication of notice or the consent of the property holders upon the line of the road should be requisite, the law providing that the council in cities of the first and second grades of the first class, may renew such grant upon such conditions as may be considered conducive to the public interest, leaving the matter, as we understand it in that respect, entirely to the judgment of the city council as to what conditions will and what will not be conclusive to the public interest. We hold, then, that the ordinance to which I have referred, which renews this grant of the franchise to maintain a street railway on Garden street between Brownell street on the west and Wilson avenue on the east, is not invalid for the reason that notice was not given, and the assent of property holders was not obtained previous to its passage."

This decision seems clearly in point and decisive of this question. We hold therefore that the consent of abutting lot owners was not required, and not a condition precedent to the right of the council to grant a renewal of the franchise of this company in 1879.

II. Again it is urged by plaintiffs that the putting up of the poles and wires, and use of a current of electricity and the running of cars at an increased rate of speed, constitutes a new and additional burden upon the street-a new burden upon their property not contemplated by the original contract and grant, and cannot lawfully be done without compensation being first made. This involves the general question as to what is an additional burden upon the street not originally contemplated for which the abutting owner may have compensation.

It has been determined in numerous decisions, and without dissent except perhaps in New York, that the use of a street by a horse railroad constructed and operated in the ordinary manner, falls within the purposes for which streets are established and maintained; and consequently that for any damages resulting from such use to the abutting owner, he can recover no compensation whether the fee of the street is in him or in the public.

Lewis on Eminent Domain, sec. 124, and cases cited.

Judge Dillon says: "The appropriation of a street for a horse railway constructed and used in the ordinary mode is such a use as falls within the purpose for which the streets are dedicated or acquired under the power of eminent domain. When authorized or regulated by the public authorities this is a public use within the fair scope of the intention of the proprietor when he dedicates the street or is paid for property to be used as a street. Such proprietor must be taken to contemplate all improved and more convenient modes of use." 2d Dillon's Mu. Corp., sec. 722

Judge Ranney, in the case of the Cincinnati and Spring Grove avenue Street Railway Company against the village of Cummingsville, [14 O. S., 523] says, "The use of such highway for the purpose of carrying passengers over the same, in this particular manner differs in nothing from the exercise of the common right of carrying them by coaches or omnibuses; and everything needing a grant, or the further authority of law, is the right to place and maintain in the highway the necessary conveniences for this new description of carriages. When this grant is confined to a mere occupation of the easement previously acquired by the public, although its enjoyment may require a restriction upon former modes, we can see nothing in it but the control, regulation and adjustment of a public right, so as to make it best answer the purpose and meet the wants of all classes of the community. It does not exclude or seriously interfere with the original modes in which the highway was used, but simply adds another in furtherance of the general object."

Elsewhere in the same opinion he says: "In either of the modes known to our laws by which lands are acquired for a public highway, an interest commensurate with the attainment of the objects of the acquisition vests in the public at large, and is necessarily placed under the exclusive control of the law making power. Whatever is fairly within the contemplation of a grant, whether voluntary or forced and necessary to its beneficial enjoyment, is within the legal operation of the instrument or proceeding by which it is effected."

Again he adds: "We see nothing in the street railroad act which induces the belief that the legislature intended to authorize either companies or public authorities, to grant to railway companies anything more than an interest in the public easement; nor do we see any reason to doubt that such a location may ordinarily be made as to bring the nec essary structures for the use of these companies within that interest, and

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without any invasion of private right; * * * but where these new structures and new modes of travel devolve additional burdens upon the land, and materially impair the incidental rights of the owner in the highway, they require more than the public has or can grant, and the deficiency can only be supplied by appropropiating the private right upon the terms of the constitution." It is to be borne in mind that in the Cumminsville case just quoted from, the learned judge was dealing with a case where the street railway track was located on one side of the street, close to the sidewalk or curbstone, and it was found as a fact by the court "that the railway track, laid upon the side of the street as proposed, will be an obstruction to the convenient access to the houses and other improvements on the northwestern side of said highway," etc., and hence the court said that the "justice of the constitution" required compensation to be made in such a case before the private right could be thus invaded. We have given the general rule and whatever modification prevails in Ohio. The rule for our guidance, then, would seem to be this: When the street car tracks are so located and the structure in the highway is of such a character as not to substantially invade private rights; that is, the right of convenient ingress and egress, and such other incidental uses of the street as may be necessary to the convenient use and enjoyment of abutting private property, then the owner must be taken to have contemplated such modes of use and has no claim for compensation. If, on the other hand, the construction is of such a character and is so located as to substantially invade private rights, then the individual is entitled to compensation.

We think we may safely assert that this structure of the defendant in the streets named, as now used and as it has been used for the past sixteen years, since the laying of the double track, has not been and does not now constitute an invasion of the rights of these plaintiffs; indeed, we hazard nothing in asserting that this railroad has been of substantial advantage to these plaintiffs and the public generally as a convenient mode of travel.

Now it is proposed to dispense with horse power in the moving of the cars and apply instead the electric motor, operated by a current of electricity from overhead wires, suspended from poles located on either side of the street. The great weight of opinion thus far expressed by the courts is that steam railroads impose a new servitude upon a street which will entitle abutting lot-owners to compensation. Horse railroads as a general thing do not. Now we have to deal with a new energy, a new agency as a motive power in propelling street passenger cars. Does it constitute a new servitude-a new burden - -an additional burden upon the street? Is it a radical and substantial departure in the manner of occupancy of the highway when this new power is applied in the manner here proposed? Is it a move away from the horse railroad toward the steam railroad in its physical relations to the street and its effect upon abutting property and public travel, so that it may be said to be a use of the highway not contemplated in the original grant of the highway? The superier court of Cincinnati in the case of Clement against the City of Cincinnati, 9 Dec. Re., 688, held that a "street railroad does not cease to be such because a grip cable is substituted for horses as the motive power." In that case a horse railroad was in operation on Gilbert avenue in Cincinnati, and council by ordinance granted the owners the privilege of laying a cable road to be operated by steam power. The court among other things, sav: "The progress of invention among a