#### The Cleveland, Akron & Columbus Railway Company *v.*South et al.

*Power of railroad company to appropriate private property*— May *be exercised only at time of railroad construction, when.*

The power of a railroad company to appropriate private property for the purpose of diverting a stream from its natural location or bed, and acquiring land for the new channel made necessary by reason of such diversion, may be exercised at the time of the construction of the road, and for that purpose, but not after-wards in the making of improvements to the road-bed.

(No. 10251

Decided March 3, 1908.)

Error to the Circuit Court of Knox county.

The controversy out of which this error proceeding arises originated by a proceeding commenced in the probate court of Knox, by The Cleveland, Akron & Columbus Railway Company, to appropriate lands owned by the defendants in error. Upon the preliminary hearing the court found all jurisdictional questions in favor of the plaintiff save as to the right to appropriate, and on that issue found as a fact that the land so sought to be appropriated “is intended to be used for the purpose of diverting a stream of water from its natural channel or bed, and for the purpose of making a new channel to convey the waters of the stream when so diverted or changed,” and, as matter of law, held that the statute does not authorize a railway company whose road has been constructed across a stream and operated for a number of years, as is the case of plaintiff’s road, to then divert the stream from its natural location or bed, and to appropriate land for the new chan*11nel made necessary by reason of such diversion of the stream. The petition was thereupon dismissed. Error being prosecuted to the common pleas by the plaintiff, the judgment of the probate court upon the controlling question was affirmed. This judgment of affirmance was affirmed by the circuit court, and the Company brings error.

*Messrs. Waight & Moore,*for plaintiff in error.

*Mr. W. A. Hosack,*for defendants in error.

Spear, J.

The power to appropriate private property for general railroad purposes is given by section 3281 of the Revised Statutes, but whatever right a railroad company has to appropriate the property of others for the purpose of diverting a stream from its natural channel or bed is controlled by section 3284. Pertinent provisions of this' section are: *“A*company may, whenever it is necessary in the construction- of its road to cross a road or a 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.” The language of this statute is so plain as to hardly call for construction. By its terms the power to appropriate is limited to the necessity arising at the time of the construction of the road. And the rule which applies to the meaning of such a statute would seem to be as plain as any rule of law can be. It is that, the grant being a part of the sovereignty of the state, is presumed to embrace in its terms all that it was intended to grant at all; so that, as held in *12*Minturn*v. *Larue,*23 How. (U. S.), 435, “only such powers and rights can be exercised under them as are clearly comprehended within the words of the act or derived therefrom by necessary implication,” doubtful claims as to power being always resolved against the corporation. This rule has been so repeatedly held and enforced by our courts that it seems needless to enlarge upon it, and a brief -reference to some of the cases will suffice. Thus we find in *Moorhead*v. *The L. M. Rd. Co.,*17 Ohio, 340, that it is held that, “private acts of incorporation, which confer power to subject private property to public use, should be strictly construed,” and that the act of incorporation which gave power to the company to appropriate land for the construction of its road did “not confer upon the company a right to relocate their road after completing it upon the first location, and to condemn to the uses of the road private property.” Birchard, C. J., in the opinion, observes, this: “The corporators had the power to locate and construct a railroad.^ They could exercise this right but once without a further grant. To accomplish this object a most important attribute of sovereignty was bestowed upon them by the legislature — the extraordinary reserved power of subjecting the property of private individuals to a public use. If it was intended that this should be a continuing power, one that might be exercised, and re-exercised again and again, as often as might ■ suit the convenience of this company, the legislature should have so declared in express terms. They have not done so.” The same principle was recognized and applied in *Currier*v. *The M. & C. Rd. Co.,*11 Ohio St., 228, *13the syllabus holding that “grants of corporate power, being in derogation of common right, are to be strictly construed — particularly where the power claimed is a delegation of the sovereign power of eminent domain.” A like holding was had in *Atkinson*v. *The M. & C. Rd. Co.,*15 Ohio St., 21. The same rule of construction is reaffirmed in *Miami Coal Co.*v. *Wigton,*19 Ohio St., 560; also in *Platt*v. *Pa. Co.,*43 Ohio St., 228. And, as applied to municipal corporations, the rule of strict construction is recognized and enforced in *Ravenna*v. *Pa. Co.,*45 Ohio St., 118.

Perceiving no reason to change this rule established by our predecessors, and being of opinion that it has proper application to the facts of this case, we hold that, neither by the express terms of the statute nor by necessary implication, is any authority given the Company to make appropriation of private property for the purpose intended, the power given by the statute for that purpose having been exhausted by the exercise thereof in the construction of the road.

Attention is called to the case of *Lorain County*v. *The L. S. & M. S. Ry. Co.,*12 O. C. D., 805, as an authority in support of the contention of plaintiff in error. Without stopping to analyze that case we are not disposed to acquiesce in the reasoning and conclusion of the learned circuit court as applied to the facts of the case at bai. It is to be borne in mind that the provision respecting the diverting of streams from their location and bed is a special provision separate and distinct from the provisions for the building of side-tracks, depots, etc. The provision respecting the diverting of streams stands exactly as it stood *14when enacted in the general incorporation act of May 1, 1852. The case of *Moorhead*v. *The L. M. Rd. Co., supra,*had been the declared law of Ohio for a number of years when the act above referred to was enacted. The section has, in other respects, been a number of times amended by subsequent acts of the general assembly; so that, the attention of that body having been thus called to the terms of the section, and presumably to the construction given language of similar import in previous enactments giving authority of a similar character, it is reasonable to presume that had it been intended to confer the power to appropriate private property for the purpose indicated in section 3284, as a continuing power, one which might be exercised again and again, as often as a railroad company might desire, the general assembly would have so declared in express terms.

*Judgment affirmed.*

Shauck, C. J., Price, Crew and Davis, JJ., concur.