§ 3279. Certain companies may extend road into other

states

Any company organized for the purpose of constructing a railroad to the boundary line of this state, may extend its road into and through any adjoining state, under the regulations which may be prescribed by such adjoining state; and the rights, powers and privileges of such company over such extension, in the construction and use of such road, and in controlling the property and applying the money and assets thereon, shall be the same as if the road were built wholly within this state. 53 V. 143, 9; S. & C. 328.

§ 3280.

A company may construct branches from the main line to towns or places within the limits of any county through or into which its road passes, or to a connection with any railroad which is or may be built within this state, or to any coal or other mine, stonequarry, plastic clay, pottery-clay and fire-clay pits or banks, ore or shale banks, if, at a meeting of the stockholders called for that purpose, the holders of a majority of the capital stock of the company, by a vote, in person or by proxy, so determine; and upon such determination the president and directors shall make and acknowledge a certificate setting forth the facts, and file the same with the secretary of state. gr (. L. 87.

A grant of power to a railroad company to locate and construct branches to its main line, does not include authority to purchase the railroad of another company, constructed under a different charter. Campbell v. Railroad Company, 23 Ohio St. 168.

§ 3281. Appropriation of land by railroad or municipal corporation

A company or a municipal corporation which may own or operate a railroad may enter upon any land for the purpose of examining and surveying its railroad line, and appropriate so much thereof as may be deemed necessary for its railroad including necessary side-tracks, depots, workshops, round-houses, and water-stations, material for construction, except timber, a right of way over adjacent lands sufficient to enable it to construct and repair its road and the right to conduct water by aqueducts and to make proper drains; but no appropriation of private property to the use of a company or municipal corporation which owns or

operates a railroad shall be made until full compensation therefor is made in money or secured by deposit of money to the owner irrespective of any benefit from any improvement proposed by the company or such municipal corporation as prescribed by law. O. L. 294.

91

Where a single track is laid and operated in a street, such condition is notice to a purchaser of abutting property of a right to maintain a track; but such purchaser will not be affected by an unrecorded deed from his grantor, executed more than six months prior, giving to the company permission to lay additional tracks, if he purchased in good faith without knowledge of the existence of such conveyance. The right to lay an additional track must be acquired by appropriation, or other suitable means. Varwig v. Clev., Cin., Chic. & St. L. R. R. Co., 54 Ohio St. 455.

Where railroad company occupies land for right of way with verbal consent of owner and verbal promise to pay, which is not performed, owner may compel appropriation at any time within twenty-one years, or tender conveyance and recover compensation. Fries v. Ry. Co., 56 Ohio St. 135.

Board of public works cannot authorize railroad on bank of canal. State v. Railway, 37 Ohio St. 157.

For power to appropriate land under facts given, see Platt v. Penna. Co., 43 Ohio St. 228; Ohio Southern R. R. v. Hinkle, 1 N. P. 63 (Prob. Ct.).

An owner, who, without objection, sees a railroad constructed on his land, or large expenditures made, upon the faith of his apparent acquiescence, will be estopped from reclaiming the land or enjoining its use, but not from claiming compensation for its value. Penna. Co. v. Platt, 47 Ohio St. 366; the measure of compensation is the value of the land at the time it is assessed in the proceeding. R. R. Co. v. Perkins, 49 Ohio St. 326.

Streets may be laid across lands of railroad company if such use is reasonably consistent with use by railroad company and does not defeat same. R. Co's v. City of Dayton, 23 Ohio St. 510.

R.

For authority to appropriate right of way for streets across railroad lands, proceedings and measure of damages, see Toledo and Ohio Central Ry. Co. v. City of Fostoria, 7 C. C. 293.

Although land appropriated under power of eminent domain can not be taken for another public use which will defeat or supersede the former use, unless power to make such second appropriation be granted expressly or by necessary implication, land held by a corporation, which is not employed in nor needed for the proper exercise of its corporate franchises, is not within the reason or operation of the rule. P. R. Co. v. Village of Belle Center, 48 Ohio St. 273.

§ 3282. What lands a company may acquire—

Such company may acquire, by purchase or gift, any lands in the vicinity of the line of its road, or through which the same passes, so far as may be deemed convenient or necessary by the company to secure the right of way, or such as may be granted

to aid in the construction of the road, and hold or convey the same in such manner as the directors may prescribe; but all such conveyances acquired by gift, to said companies, shall be null and void, unless said company complete said road on the right of way so conveyed within five years from the time of said conveyance; and all deeds and conveyances made by the company shall be signed by the president, under the seal of the company. V. 274, § 15. S. & C. 279.

50

A party owning lands entered into an agreement with the company by which it was allowed to enter on the lands and construct the track of its road; it was to pay for the use of the land, upon an estimate to be made by persons selected, within sixty days after such estimate; the agreement provided that, if the payment was not made, the interest which it gave, and the fixtures and works constructed, should become the property of the party, as if the agreement had not been made, and "said company had, without authority, and in its own wrong, entered upon said land, and made said road through the same;" and the estimate having been made, and the payment not made within the time, an injunction was asked to restrain the company from using the land for its railroad track: Held, that an injunction was properly refused, and that the party should be left to pursue the ordinary legal remedies. Coe v. Railroad Co., 10 Ohio St. 372.

The owner of a piece of land agreed in writing to convey it to a railroad company for depot purposes, on condition that the land should be occupied for the western part of the company's depot grounds, and a part of the usual depot buildings erected thereon; the company caused to be erected and maintained on said piece of ground a warehouse for the accommodation of the public in doing business on the road, and constructed thereon facilities for loading and unloading live stock, coal and lumber, but erected the principal depot buildings forty rods east of said piece of land: Held, that the company had complied with the condition of the agreement, and was entitled to hold the land. Railway Co. v. Rose, 24 Ohio St. 219.

When a railroad company has received from private parties donations of land, subscriptions of stock, and payments of money, in consideration that it should locate its road at a particular place, and allow private side tracks and warehouse privileges in connection therewith, the company will not be permitted to effectuate a change in fact (though not in name) of the line of its road away from such place, by getting up a new corporation, and constructing a new road parallel with its old one, under a different charter, and permitting its old line to go to decay, without compensating the parties with whom it contracted. Chapman v. Railroad Co., Ohio St. 119.

The measure of damages in such case will be: 1. The par value of plaintiff's stock and unpaid dividends, provided they transfer the stock to the company. 2. The value of the lots donated by plaintiff to the company, estimated at the date of the location of the road thereon, with interest from the commencement of the action. 3. The diminution in value of plaintiff's

warehouse and side tracks resulting from the change in line. 4. Compensation for the right of way through plaintiff's land, from the time the line was changed until the railroad quitclaims the same to him, and if this deed is not given, then the compensation is to be computed as if the right of way is to be perpetual in the company; and in default of the payment of such damages by the day named, the company should be enjoined from using the other line till payment. Ib.

The power to purchase land conferred by section 14 of the act of February 11, 1848 (46 v. 40), is not limited to the acquisition of such lands as may be necessary for operating and maintaining its road. Walsh v. Barton, 24 Ohio St. 28.

If, in making a purchase of real estate, the company abuse the power conferred upon it by said section, still, after resale and conveyance, the title becomes indefeasible in its vendee. Ib.

A deed purporting to have been executed by the president of a railroad company, under the seal of the corporation, as authorized by section 15 of the act of May 1, 1852 (50 v. 274), if objected to, cannot be given in evidence without proof of its execution. Ib.

If a railroad company has obtained a quitclaim deed from a tenant for life of premises for a right of way, it cannot enter on the land without first making compensation to owner of fee. Gorrill v. Ry. Co., 4 C. C. 398.

For right of owner of leased land to grant right of way to railway company, see Ohio Oil Co. v. Railroad Co., 4 C. C. 210.

§ 3283. How right to occupy road, etc., acquired

If it be necessary, in the location of any part of a railroad, to occupy any public road, street, alley, way or ground of any kind, or any part thereof, the municipal or other corporation, or public officers or authorities, owning or having charge thereof, and the company, may agree upon the manner, terms and conditions upon which the same may be used and occupied; and if the parties be unable to agree thereon, and it be necessary, in the judgment of the directors of such company, to use or occupy such road, street, alley, way or ground, such company may appropriate so much of the same as may be necessary for the purposes of its road, in the manner and upon the same terms as is provided for the appropriation of the property of individuals; but every company which lays a track upon any such street, alley, road or ground, shall be responsible for injuries done thereby to private or public property lying upon or near to such ground, which may be recovered by civil action brought by the owner, before the proper court, at any time within two years from the completion of such track. 54 V. 133, § 12. S. & C. 278.

This section does not authorize surrender and abandonment of street by

city. The use can only be in common, and exclusive use cannot ripen into title by limitation. L. S. & M. S. Ry. Co. v. Elyria, 14 C. C. 48.

For contract with city and damages for breach, see Railway Co. v. Carthage, 36 Ohio St. 631. See also Lawrence R. R. Co. v. Cobb, 35 Ohio St. 94; Same v. Williams, 35 Ohio St. 171; R. R. Co. v. Mowatt, 35 Ohio St. 284; State v. Ry. Co., 37 Ohio St. 157; Megrue v. Com'rs, 15 C. C. 242.

Where a railroad company builds its road across streets in a city under an ordinance granting permission under condition that if such streets shall be widened or opened they shall cross the tracks free of expense for right of way, etc., such company or its grantee with notice is bound by said condition. R. R. Co. v. City of Hamilton, 3 C. C. 455.

In an action to recover for injury to property under this section, it is conpetent to consider substantial injury and loss to the property (not common to the community at large) caused by smoke, noises and sparks of fire caused by running of locomotives and cars along the track in front of the property. Ry. Co. v. Gardner, 45 Ohio St. 309. See also Ry. Co. v. Reeder, 6 C. C. 354.

The mere fact that a city granted a railroad company the right to construct the road through a street does not make it liable for damages to abutting property by such use of the street. Dillenbach v. City of Xenia, 41 Ohio St. 207. "Near to" construed. R. R. Co. v. McLaughlin, 15 C. C. 1. An ordinance which authorizes a railroad company to erect new bridges over streets, etc., does not entitle the company perpetually to maintain them, nor divest the municipal authorities of control over streets. R. R. Co. v. Defiance, 52 Ohio St. 262.

A bridge required to be kept in a street under which the railroad passes may be closed when out of repair and dangerous, although it is part of the public street. Toledo St. Ry. Co. v. Mammet, 13 C. C. 591.

§ 3284. May divert road or stream when necessary

A company may, whenever it is necessary in the construction of its road to cross a road or stream of water, divert the same from its location or bed; but the company shall, without unnecessary delay, place such road or stream in such condition as not to impair its former usefulness; and any or all railroads hereafter constructed which shall cross any avenue or public highway leading from a city of the first or second class to a public cemetery of such city, situated within or without the limits of any such city, shall be constructed so as either to pass under or over such avenue or public highway, at such elevation or depression, as the case may be, as will allow the unobstructed passage of all wagons, carriages, or other vehicles which it may be necessary for any person to use upon such avenue or public highway. 50 v. 274, 16; S. & C. 279.