COUNTY COMMISSIONERS.’

[Putnam Circuit Court,

November Term, 1897.]

Day, Price and Norris, JJ.

#### Megrue et al. v. Commissioners of Putnam Co.

Commissioners have Power to Surrender Portion oe a Public Highway and to Contract eor Completion oe Road as Diverted, Requiring Bond.

The board of county commissioners has power, under secs. 3283 and 3284, Rev. Stat., to enter into a contract with the representatives of a railway company for the surrender of a portion of a public highway and to fix the manner, and terms of occupancy, requiring the railway company, by the purchase of necessary land adjoining, to put the public road, as diverted, in such condition as not to impair its former usefulness, and to exact a bond for the faithful performance of those conditions.

Error to the Court of Common Pleas of Putnam county.

The board of county commissioners of Putnam county, filed a petition against Joseph R. Megrue, James B. Townsend and Nelson E. Mathews, alleging in substance: That on November 25, 1895, the defendants named, executed and delivered to the plaintiff their certain writing obligatory, whereby they became bound to the said board for the use of Putnam county, in the sum of one thousand dollars. The condition of the writing obligatory was to the effect that The Lima Northern Railway Co. had located and graded, and was about to construct, its railroad on and across the Columbus Grove and Ottawa public road, in section three, Pleasant township; and the construction of said railroad on the said public road will destroy its usefulness as a public way, and compel its abandonment at that point, and its rebuilding in a different location ; that the said defendants, acting for and representing the railway company, proposed and agreed with the said board of commissioners, in consideration of the surrender of a portion of said public road for the uses and purposes of said railway company, to purchase the necessary ground and construct a public road on and along the east side of the said *263railroad right of way, so as to make the said public road connected and continuous; and to place good gravel on it, and to finish and complete it,, suitable for public travel, within thirty days from the time rails are laid on the said railroad to the north line of said section three; and upon default of the said railway company in complying with the terms of said-agreement, the said defendants were to become liable for the reasonable cost and expense of rebuilding or finishing and completing the said public road; the board surrendered to the railway company the designated portion of the public way, and the company entered upon and took possession of it, and constructed its railroad on and across it, and laid rails thereon to the north line of said section three, before January 1, 1896. The railway company purchased a strip of ground sixty feet wide and fifteen hundred and eighty feet long, in the location agreed upon, and partially rebuilt the public way as per its agreement, but has failed and refused to fully complete the same within thirty days, or at all, although requested. After waiting a reasonable time, much longer than thirty days, the board of commissioners completed the grading and ditching, and put gravel thereon, and in September and October, 1896, fully completed the said public way according to the terms of the agreement at the reasonable cost and expense of $464.00. By reason of the facts stated, the- claim is asserted that the conditions of the writing obligatory have been broken, and the liability of the signers, the defendants, has become absolute; and judgment is prayed against them for the amount of the cost and expense incurred in completing the public way. A second cause of action, with similar facts, is stated, and judgment demanded. A general demurrer that the petition does not state sufficient facts to constitute a cause of action against the defendants, was overruled, and defendants not desiring to answer or further plead, judgment was entered against them for the full amount claimed. Defendants prosecute error, and base their right to a reversal of the judgment on the insufficiency of the petition.

Day, J.

The only question raised on this record is as to the insufficiency of the petition : Are sufficient facts stated to entitle the board of county commissioners to recover against the defendants below? The whole contention of plaintiff in error rests on the assumption that the board of commissioners was without power to make the contract which forms the basis of the action. It is urged, that the board of commissioners is without authority and cannot take action, legally, to vacate or dispose of any part of a public highway, in the absence of the initial steps provided by the statute; that no such steps were taken in this case, and hence, that the ágreement to surrender a part of the public road to the railway company for its uses was unlawful, the board without right or power to act in the matter, and its contract absolutely void. This claim, we think, would have to be allowed, if the transaction in question was, alone, a proposition to locate and establish a road, or, to vacate some part of a public road; but such was not the proposition. The proposition was not in any sense, to vacate a public road and to locate and establish *a*new one. The public road is not, and was not to be vacated and a new one opened, under the contract between the railway company and the board of commissioners. The words used in designating what the board was to do was, “surrender a portion of the public road for the use of the *264railway company in constructing its road and road crossing.” ^Surrender’ ’ does not mean, in any sense, to vacate, or locate. In this, and in every connection, the word surrender only means to yield to, “to cease to resist the efforts of another; ” and the word including the entire contract in this instance, must be interpreted in the light of the legal right of the railway company to occupy and cross a public highway; and the fact that the company was making an effort to occupy, as a crossing, this identical part of the public road. * Interpreted in this light then, the transaction and agreement in its, entirety, was simply and only a proposition to divert — to turn aside slightly, from its former location at one point, a continuous highway for the mutual welfare and benefit of the public and the railway company. And for this, it is believed, there is found special warrant in the statutes. In sec. 8283, Rev. Stat., it is provided:

*W. H. Leete, W. B.*Richie, *Watts &*Moore, for plaintiff in error.

*Jas. P.*Leasure, prosecuting attorney, for the commissioners.

> “ If it be necessary, in the location of any part of a railroad, to occupy any public road, street, alley, etc., or any part thereof, the officers having charge thereof, and the company, may agree upon the manner, terms and conditions upon which the same may be used or occupied.”

Further, provision of the section is: “If no agreement can be had, ■ the railway company has a right of eminent domain, and may appropriate the same, as provided by law.” The following sec. 3284, provides : “A railway company may, when it is necessary in the building of its road, to cross a road or a stream, divert the same from its location; ” the only requirement being, that it “must, without unnecessary delay, place the road or stream in such condition as not to impair its former usefulness.’'’

We think the provisions of secs. 3283 and 3284, Rev. Stat., contain ample authority for the board of commissioners of a county, to not only surrender — that is, yield to the efforts of a railway company to occupy some portion of a public highway; but also to make a contract stipulating and fixing the manner and terms of occupancy, and requiring the company to put the public road, as diverted, “in such condition as not to impair its former usefulness.” And so we reach the conclusion in this case, that the board of commissioners of Putnam county, in making the contract it did make, and in exacting the security for the faithful performance of the contract it did, was clothed with ample power, and was in no sense acting without lawful authority. The contract it secured was fairly made, and was valid, and there was no error in its enforcement by the common pleas court.

The judgment is affirmed.