Huron Common Pleas.

It appears from the evidence that in the year 1851, the Toledo, Norwalk & Cleveland Railroad Company entered upon the premises in dispute, being a strip of land one hundred feet wide, extending through lots 62 and 63 in Townsend township, Huron county, for the purpose of constructing thereon its railroad. In August of that year, an appraisal was duly made and returned to this court under the law then in force, providing for appropriating land for railway purposes. In 1852, the owners of the land executed to the Toledo, Norwalk & Cleveland Railroad Company an instrument whereby they ratified and confirmed the appropriation, and released to the company this strip of land one hundred feet wide, to be used and occupied as a site for its railroad bed and other legitimate railroad uses and for no other purposes. The instrument was placed on record in the recorder's office in this county, and the company took possession of the land and constructed its railroad along the middle of the strip. In the course of time the rights of that company passed to the Lake Shore & Michigan Southern Railway Company, which has continued to operate its railroad upon and over the land in question.

On October 4, 1905, the Lake Shore & Michigan Southern Railway Company executed to the defendant, The Buckeye Pipe Line Company, a license to construct along the railroad right of way through Townsend township, an oil pipe line. This license is, by its terms, to last for the period of five years subject to being terminated by the railroad company at any time that it is found to interfere with the use of the property for railroad purposes, and is in consideration of an annual payment of five dollars to be made by the pipe line company to the railroad company.

In pursuance of this license, the Buckeye Pipe Line Company was proceeding to construct its pipe line through Townsend township along the right of way of the railroad from the west, and employing for that purpose some two hundred men, and had, on October 9, reached a point within a mile or two of the strip of land involved in this suit.

The plaintiff before that date had been involved in some trouble with the Lake Shore & Michigan Southern Railway Company and the Standard Oil Company over some claims which he represented and which were not promptly adjusted. It appears that he harbored resentment against these companies, and that the men who were to look after these claims are the same men who are representing the Buckeye Pipe Line Company in getting this right of way. Plaintiff with knowledge that the pipe line company was constructing its pipe line along the railroad right of way, and that it had strung its pipe upon this land, purchased this strip of land subject to the right of way of the Lake Shore & Michigan Southern Railway Company. He paid one

Hawkins v. Pipe Line Co.

of the owners one dollar, and agreed to pay the others a sum equal to one-half of what he may be able to get for the land. He does not own, nor claim to own, any land abutting on this strip so bought. This purchase was made on October 9, and this injunction suit was brought the next day, to prevent the pipe line company from constructing its line upon this land. The pipe line is now completed through Huron county, except across this strip of land. The pipe is laid on the right of way about nine feet south of the north line thereof. A line of telegraph poles and wires extends along the north margin of the right of way. On this state of facts what are the rights of the parties?

It is manifest that the Lake Shore & Michigan Southern Railway Company became the owner many years ago as successor of the Toledo, Norwalk & Cleveland Railroad Company of this strip of land for railroad purposes. The plaintiff, by the deeds of conveyance made to him. immediately before this action was brought, became the owner of the fee, subject to whatever right the Lake Shore & Michigan Southern Railway has. It is insisted on the authority of Platt v. Pennsylvania Co. 43 Ohio St. 228 [1 N. E. Rep. 420], that the railroad by nonuser, and by the license to the defendant company has abandoned its right to the north part of the right of way, and that the plaintiff is therefore the absolute owner thereof.

It is no indication of abandonment, that the railroad company has owned this right of way for fifty years without constructing any track on it except the single track in the middle of the same. Neither does it establish abandonment to show that the railroad has granted a license to the defendant company to maintain a pipe line for five years on the land. The case of Platt v. Pennsylvania Co. supra, was not for an in junction but for compensation. There had been an absolute sale in perpetuity to another company. It had become apparent in that case that the original company had appropriated more land than was necessary for its use. In the case at bar, the license is only for five years, and the railroad company reserves the right to annul the same at any time it needs the property for railroad purposes. In addition it is clear that the land over the pipe line might be used for many railroad purposes while it was being used by the defendant to transport oil in the pipe. In the case at bar, the landowner was paid for the land what it was appraised at, less $50 benefits, while in Platt v. Pennsylvania Co. supra, the landowner received nothing.

That made a case which appealed strongly to the court and when it appeared that one-fourth of the land was sold for $7,500, the court held it was an abandonment. But that case stands on its own peculiar facts and its doctrine must not be extended. See Pitts. & W. Ry. v.

Huron Common Pleas.

Garlick, 11 Circ. Dec. 337 (20 R. 561, 569). Affirmed in Garlick v. Railway, 67 Ohio St. 223 [65 N. E. Rep. 896].

The title which the plaintiff bought, is, at the best, subject to an easement in the Lake Shore & Michigan Southern Railway Company for as long a time as the property shall be used for railway purposes. The license to the Buckeye Pipe Line Company for five years can be but a trivial charge upon this fee which is already burdened with the railroad right of way. It may be that the title of plaintiff, slight as it is, would, under ordinary circumstances, be protected against the defendant company by injunction, especially if he owned the abutting land. See Schaaf v. Railway, 66 Ohio St. 215 [64 N. E. Rep. 145]; Cin. H. & D. Ry. v. Wachter, 70 Ohio St. 113 [70 N. E. Rep. 974].

Such an injunction would result in injury to the defendant altogether out of proportion to the benefit it would confer on the plaintiff. See Erie Ry. v. Railway, 21 N. J. Eq. 283, 293; Detroit City Ry. v. Mills, 85 Mich. 634 [48 N. W. Rep. 1007].

But there is a principle of equity which I think.requires the court to refuse an injunction in this case. It is that rule of wide application which has been embodied in the maxim, "He who comes into equity, must come with clean hands." The plaintiff bought his interest in this land for the express purpose of taking advantage of the supposed necessities of the Buckeye Pipe Line Company. He did it because he was actuated by an improper motive. He bought just before the pipe line company reached this location in laying its pipe. He did not buy to make an investment, nor to resell at a fair price, but to force recognition by an injunction suit which should bring the company to his terms. He owns no abutting land. This conduct does not appeal to a court of equity. He asks a court of equity to aid him in taking advantage of the situation. Without touching upon his legal rights to recover compensation in a court of law, it seems clear that a court of equity cannot aid him by injunction.

As said in Power's Appeal, 125 Pa. St. 175 [17 Atl. Rep. 254; 11 Am. St. Rep. 882]:

"If an injunction is prayed for where, upon a consideration of the whole case, it ought not in good conscience to issue, a mere legal right in the plaintiff will not move the chancellor."

This is in harmony with the line of cases which hold that the location of a railroad through a public street, in a line not warranted by law, I will not be enjoined at the instance of an owner of an unimproved building lot suffering no present detriment.

In Piedmont & C. Ry. v. Speelman, 67 Md. 260 [10 Atl. Rep. 77], it was held:

Hawkins v. Pipe Line Co.

"A court of equity will not lend its aid to an assignee of a lease of land through which a railroad company seeks to condemn a right of way, and enjoin it from so doing, when it is shown that the assignee is the president of a rival road, and denies the power of the first company to condemn the land under its charter, but will leave him to his remedy at law. Under ordinary circumstances Mayer (the president) would have been entitled to an injunction to restrain the entry of the road upon the leased premises until, either by agreement or condemnation he was paid for his interest. But the several records now before the court disclose beyond a reasonable doubt that the purchase of Mayer of this lease was for the sole purpose of throwing obstacles in the way of the completion of the road," etc.

The court held that whatever his legal rights might be, a court of equity would not aid him. Citing Wood v. Railway, 33 Beav. 291.

The maxim referred to above, means that equity refuses to lend its aid in any way to one seeking its active interposition, who has been guilty of inequitable conduct in the matter with relation to which he seeks relief. 16 Cyc. 144; Kinner v. Railway, 69 Ohio St. 339 [69 N. E. Rep. 614]; 1 Pomeroy, Eq. Jurisp. Sec. 397; see Michigan Pipe Co. v. Ditch, P. L. & R. Co. 111 Fed. Rep. 284 [49 C. C. A. 324].

An adverse claimant of land who purchases a lease or procures a tenant to attorn to him, gains no rights in equity by the possession so obtained. Stetson v. Cook, 39 Mich. 750.

An action for damages or compensation is a matter of right, but an injunction is of grace. Hilliard, Injunctions 15.

Counsel for defendant insists that the plaintiff has not shown himself to be the real party in interest, citing Brown v. Ginn, 66 Ohio St. 316 [64 N. E. Rep. 123], but I prefer to rest the decision on the grounds above set forth.

For the reasons given, a decree will be entered for the defendants, and the injunction dissolved.

22 Dec. Vol. 16

Franklin Common Pleas.

ASSESSMENTS-INJUNCTIONS.

[Franklin Common Pleas Court, October 11, 1905.]

DANIEL O'BRIEN ET AL. V. COLUMBUS (CITY) ET AL.

1. SECOND ASSESSMENT FOR STREET IMPROVEMENT NOT INVALID AS REASSESSMENT, WHEN.

While property once assessed for the cost of a particular improvement cannot be reassessed for the same improvement, yet an assessment for the same general purpose as the prior one is valid, where it appears that the proceeds of one of the assessments was used to pay for work done by contract, and of the other for work done by the municipality itself.

2. MERE IRREGULARITIES IN LEVY OF ASSESSMENT WILL NOT OPERATE TO DEFEAT IT. Where there is no equity on the part of one seeking to enjoin an assessment which appeals to the conscience of the chancellor, mere irregularities in the levy will be covered by the curative provisions of Lan. R. L. 3659 (B. 1536-267).

C. M. Addison, for plaintiffs.

D. T. Keating, for defendants.

BIGGER, J.

This case has been submitted upon the evidence and the law has been argued by counsel in carefully prepared briefs. I have had much difficulty in reaching a conclusion satisfactory to myself in this case. If it be conceded, as claimed by counsel for plaintiff, that this is a case of reassessment, then there is no escape from the conclusion which he insists upon, to wit: that no such assessment can be levied or enforced after a levy and payment of the first assessment. But I am rather of opinion that this assessment under the Pugh law, is to be considered as a further assessment for the same general purpose rather than as a reassessment. It is certainly true that if the said council once assessed property for the cost of a particular improvement already made, it cannot, after it is paid, reassess for the making of that particular improvement. It would rather seem from the evidence here that the city was undertaking to do some of this work by contract and some of it by virtue of the statute which authorizes it to purchase its own machinery and make repairs.

I think the contention of plaintiffs' counsel is clearly correct, if the court would resort to oral testimony to vary the meaning of what seems to be clear and explicit in the ordinance itself, that these assessments were for repairs as well as cleaning. Why may not one of these assessments have been for work done under the one plan and the other for work done under the other plan? The terms of the ordinance are, it is to be observed, general, applying to repair work for the entire period of a year leaving it indefinite as to what particu