#### The Toledo Railway and Terminal Co. *v.*The Lima and Toledo Traction Co. The Toledo, Fostoria & Findlay Railway Co. *v.*The Pennsylvania Co.

*Tracks of steam and electric cars may cross, hozo*— Act *of April 23, 1904 (97 O. L., 548), Sections 3333-1 and 2, Revised Statutes —Junior company carniot choose place of crossing*— Costs *shall be equitably apportioned*— Weight *of evidence not*considered— *Enforcement of interpretation of statute.*

1. The act of April 23, 1904 (97 O. L, 548, Sections 3333-1 and 2, Revised Statutes), in the cases to which it applies defines the policy of the state to be that the tracks of steam and electric cars may' cross at grade only in cases of necessity.

2. The junior company may not defeat the operation of the act by voluntarily choosing a place of crossing at which the grades cannot he separated when there is a practicable place of crossing at which the grades may be separated.

3. The act requires that the cost of constructing and the expense of maintaining the crossing defined by the court shall, by its order, be equitably apportioned among the parties interested.

4. Although this court will not consider the weight of evidence in such case, it will in a proceeding in error to the circuit *137court examine the record to see that the order of the circuit court is in accordance with a proper interpretation of the statute.

(Nos. 10958-11211

Decided December 1, 1908.)

Error to the Circuit Court of Lucas county.

Error to the Circuit Court of Wood county.

These cases began in the court of common pleas by applications to that court to define the mode in which the junior company should construct its road in crossing that of the senior company, the applications being made under favor of the act of April 23, 1904 (97 O. L., 548). The applications having been heard and determined in the court of common pleas, an appeal was, in each case, taken to the circuit court as authorized by the concluding provision of the first section of the act. In that court it was found, in each case, that it is reasonable and practicable to avoid a grade crossing, and an order was made for the separation of the crossings, The Lima and Toledo Traction Company being required to construct its track beneath that of the senior company, and The Toledo, Fostoria & Findlay Company to cross- the tracks of the Pennsylvania Company by an overhead structure, and in each case the character of the structure was indicated by specifications which are admitted to be sufficiently clear and complete. In both cases the court ordered that the initial costs of construction and the expenses of maintenance be borne equally by' the two companies. In the latter case the findings of the circuit court, four *138to ten inclusive, raise a question which is peculiar to that case.

“Fourth. That the section line road between sections eight and nine in Lake Township, Wood County, Ohio, is a public highway, and that The Toledo, Fostoria & Findlay Railway Company has procured from the Commissioners of Wood County, Ohio, by an order duly entered upon the journal of said commissioners, the right to use the said section line road called ‘The Loop Road/ for the construction and operation of its said -line of electric interurban railway from the village of Pernberville to the north line of Wood County, Ohio, and one’ of the requirements of the grant is that the electric road shall conform to the present level of the public highway, wherever the tracks are laid in the highway, which, at this point, crosses The Pennsylvania Company’s road at grade. The electric line is constructed upon private right of way the greater part of the distance from Pemberville to Walbridge and turns into the highway about thirty rods from the proposed intersection of The Pennsylvania Company’s tracks.

“Fifth. At the time of the filing of the application herein, and at the date of the hearing, The Toledo, Fostoria & Findlay Railway Company and The Pennsylvania Company had not agreed upon the manner and mode of crossing the tracks of The Pennsylvania Company by the tracks of The Toledo, Fostoria & Findlay Railway Company, the electric line, and The Pennsylvania Company has declined and now resists the installation of a grade crossing.

“Sixth. At the proposed point of intersection *139of the two roads, The Pennsylvania Company’s lines run in a northwesterly and southeasterly direction, so that the section line road called ‘The Loop Road’ does not cross the railroad tracks at a right angle, but at an angle of about thirty-five degrees, and a grade crossing at this point would be highly dangerous.

“Seventh. It is entirely reasonable and practicable to present and avoid a grade crossing at the point of the proposed intersection, and it is entirely practicable and reasonable that the grades be separated by the construction for the electric line of an overhead crossing. It is not practicable or reasonable to construct an undergrade crossing of the tracks of The Pennsylvania Company. Such crossing would bring the tracks of the electric road below high water mark, and the water would interfere with the operation of the road at that point.

“Eighth. To carry the crossing overhead within the limits of the highway at this point would be destructive in part of the uses of the road; the structure would necessarily occupy about twenty-two feet of the width of the road for a distance of about one thousand feet, and would necessarily be immediately in front of a large number of dwellings and store buildings and would impair the access of the proprietors thereof to the public highway.

“It would be practicable from an engineering standpoint to construct and operate an overhead crossing at this point within the limits of the highway, but the damage to private property therefrom would be so great, and the prevention of *140such crossing by the public authorities or others by legal process would be so probable, that, if there were no other point near by at which an overhead crossing could be constructed and operated conveniently, it would not be reasonable and practicable to prevent and avoid a grade crossing.

“Ninth. That at points within a distance of six hundred feet easterly from said highway and railway crossing, it is reasonable and practicable to obtain a right of way for, and to construct and operate an overhead crossing with proper approaches, for said electric railroad over said Pennsylvania Company’s tracks, and such crossing need not have any greater curvature or heavier grades than the grades and curves of said electric line of The Toledo, Fostoria & Findlay Railway Company at other points upon its line.

“Such overhead crossing is the mode that will do the least practicable injury to the rights of The Pennsylvania Company.

“Tenth. That the form of construction herein ordered is practicable and reasonable, and that it is fair and just to divide the expense as herein adjudged.”

The following order followed the findings of fact in that case:

“Upon the foregoing facts, the court orders, adjudges and decrees that a grade crossing of the tracks of The Pennsylvania Company by the track of The Toledo, Fostoria & Findlay Railway Company shall be, and the same hereby is, prevented, except as to the temporary crossing as hereinafter provided; that the track of the said The Toledo, *141Fostoria & Findlay Railway Company shall cross the -tracks of The Pennsylvania Company by an overhead structure composed of a steel span skew bridge and the necessary approaches thereto; that said approaches shall be constructed by an earthen fall of sufficient width for a single track, and the steel bridge or span shall be supported by concrete abutments at either end, of the necessary size and style, and said bridge shall be built of steel of sufficient, width for a single track and have sufficient strength to sustain the weight of the traffic to be carried with a proper allowance as a factor of safety; said steel structure to weigh approximately' one hundred and fifty thousand pounds; and the lowest parts of said bridge to clear The Pennsylvania Company’s tracks at least twenty-one feet.

“It is further ordered, adjudged and decreed that the cost of the necessary right of way for said overhead structure and fill from the point where such right of way leaves the highway to the point where it returns to the highway, and the cost of constructing said entire fill and structure shall be borne equally by both coiaapaaiies.

“That the cost of future maintenance of said entire overhead crossing, including approaches, ties and rails, shall be borne alone by said The Toledo, Fostoria & Findlay Railway Company, its successors and assigns, except the maintenance of the bridge span and abutments, which shall be forever maintained at the equal joint expense of both companies, their successors or assigns.

“It is further ordered, adjudged and decreed *142that the temporary grade crossing heretofore installed and now in operation under the previous order of this court be permitted and allowed to remain in place and to be operated by said electric line, without any prejudice whatever to any of the rights of said The Pennsylvania Company, for a period of six months from the date of this decree, and the operation thereof shall cease and said crossing shall be removed not later than the first day of July, A. D. 1908, and upon the failure of said The Toledo, Fostoria & Findlay Railway Company to entirely remove said temporary crossing, on or before the said first day of July, A. D. 1908, said The Pennsylvania Company is hereby authorized to, and it shall, remove said crossing, restoring its tracks to the same condition which they were in prior to the installation of said crossing', unless an extension of time for such removal be granted by this court or by the supreme court.

“It is further ordered, adjudged and decreed that the original cost of the installation of said temporary grade crossing, including the cost of laying and removing so much of the track in the highway as must be abandoned if overhead crossing shall be constructed (but not including the cost of any materials thereof except the cost of the bridge over the creek in the highway) be borne and paid equally by both of said companies.

“It is further ordered, adjudged and decreed that each company shall pay one-half of the costs of this proceeding, taxed at $......, and in default thereof within sixty days from this date that execution issue for the collection thereof.”

*143In case number 10958 it made- the following order upon that subject:

“It is further ordered that said structures may be built and the necessary work incident thereto may be done by plaintiff and the total cost thereof including the expense of removing said piling; of temporary supports for track of defendants; and earth filling as above provided and relaying of defendant's track and all other material and labor necessary to complete said structures and crossing shall be borne and paid one-half by plaintiff and one-half by the defendants; and shall be a first lien and charge against the property of the respective parties and the assets of said receivership. It is further ordered that the plaintiff and defendants shall share equally the cost of maintaining said crossing and structures. Ordered further that the costs of this proceeding be paid one-half by plaintiff and one-half by defendants.”

*Mr. F. W. Stevens*and *Messrs. Seiders & Cunningham,*for The Toledo Railway & Terminal Company, plaintiff in error.

In a proceeding by a junior company to appropriate property of a senior company to be used in common as a railroad crossing at grade, the senior company cannot recover the cost of complying with those police regulations, although it can recover compensation for the property and such consequential damages, not provided for by the act of 1860, as are the direct and proximate consequences of such appropriation. *Railway Co. v. Railway Co.,*30 Ohio St., 604.

*144The same distinction is well and clearly pointed out in the case of *Railway Co.*v. *Commissioner,*127 Mich., 219, which was decided largely on the reasoning in *Railway Co.*v. *Railway Co.,*30 Ohio St., 604.

The principle that, where a new way or road is opened or made across a way or road already existing and in use, the owner of the new way must bear all the expenses of putting the old way in condition to be used, in the absence of a statute imposing the burden, or a part of it, on the owner of the old road or way, is well stated in the case of *Dyer County*v. *Railroad Co.,*87 Tenn., 712.

It is a well settled rule of the common law resting upon the most obvious considerations of fairness and justice, that, where a new highway is made across another one already in use, the crossing must not only be made with as little injury as possible to the old way, but whatever structures may be necessary to the convenience and safety of the crossing must be erected and maintained by the person or corporation constructing or using the new way. *Railway Co.*v. *Baltimore,*46 Md., 425 ; *Canal & Banking Co.*v. *State, 4*Zabriskie, 62; *Rex*v. *Kerrison,*3 Maule & Selwyn, 532; *Rex*v. *Inhabitants of Lindsay,*14 East, 316; *People*v. *Railroad Co.,*67 Ill., 118.

But the expense of making a structural change in the property of the defendants in order to adapt it to the new conditions created by the crossing relates to construction, not to operation, and must be paid for by the plaintiff, unless some statute imposes a part of the expense on the defendants. This is well supported by the authorities. *Railway**145*Co.*v. *Troy,*68 Ohio St., 510; *Kansas City*v. *Railway Co.,*102 Mo., 633; *Railway Co.*v. *McGrew,*104 Mo., 282; *Butchers Assn.*v. *Commonwealth,*163 Mass., 386; *Railway Co.*v. *Wolf,*137 Ill., 360; *Rumsey*v. *Railroad Co.,*133 N. Y., 79; *Kersey*v. *Railroad Co.,*133 Pa. St., 234; *Plymouth*v. *Railroad Co., 102 N.*W. Rep., 947.

*Messrs. Smith & Beckzvith*and *Messrs. Cable & Paymenter,*for The Lima & Toledo Traction Company, defendant in error, filed a brief.

■ *Messrs. Ross & 'Kinder,*for The Toledo, Fostoria & Findlay Railway Co., plaintiff in error.

Interurban railroads are by the statutes of Ohio classed as street'railroads. Bates’ Revised Statutes, Section 3443-8-13.

From a careful examination of the course of legislation on the subject of railroads and street railroads, it appears that the legislation as to each has been carefully kept separate, and the statutes as to railroads do not apply to street railroads unless made to do so by clear reference. *Bridge Co.*v. *Iron Co.,*59 Ohio St., 179; *Greene v. Railway Co., 62*Ohio St., 67; *Railroad Co.*v. *Lohe, Admr.,*68 Ohio St., 101; *Commissioners*v. *Traction Co.,*75 Ohio St., 548.

No specific route or location being fixed for the road, it could by its proper officers select the particular location or route for its railway. 23 Am. & Eng. Ency. Law (2 ed.), 685; *Railroad Co.*v. *Ralston,*41 Ohio St., 573.

It is generallv held that where a railroad company to which has been given the power to choose *146its particular route between designated termini has exercised its discretion in this regard its power of choice is exhausted and it cannot subsequently change its location or route without express legislative authority. 23- Am. & Eng. Ency. Law (2 ed.), 690.

When the charter of a railroad company merely fixes a few points through which the road is to pass from its commencement to its terminus, leaving- the location of the road between the points specified to the discretion of the corporation, the railroad company having once located the road, their power to re-locate and for that purpose to appropriate the property of an individual has ceased. *Railroad Co.*v. Naylor, 2 Ohio St., 236.

Since that decision the power has been given by statutes to steam railroads by the provisions contained in Sections 3272 and 3273, but there is no such provision applicable to street railroads. The act under which this proceeding is brought (97 Ohio Laws, 548) provides. that where it becomes necessary outside the limits of a city or village for the track of one railroad to cross the track of another railroad and such roads do not agree it shall be the duty of the court of common pleas of the county wherein such crossing is located, or a judge thereof in vacation, on application of either party to ascertain and define by its decree the mode of such crossing. The circuit court is controlled by the same provisions. The court will notice that it is the mode of crossing and not the point of crossing which the court or a judge thereof is authorized to fix and determine.

*147*Messrs. Marshall & Fraser,*for The Pennsylvania Company, defendant in error.

The opposition of the Pennsylvania Company to the installation of the grade crossing, as evidenced by its position in this case, arises from no feeling of hostility to the constructing line, nor from any desire to oppose their progress or development, but it is the result of sad and expensive experience gained by the operation and maintenance of these death traps in every part of the country. This company did more than any other person or institution to write upon the statute books of Ohio a measure that' would place it within the power of some responsible department of our state government to stay the further construction of these crossings, and the company feels that its efforts in this regard were warranted and sustained by the awakening- public sense of the real danger of such methods of construction, and the fact that such crossings are unnecessary.

This company stands ready to assume the burden of paying its fair proportion of the expense necessary to the separation of this and other crossings and has for some time pást, and will in the future, consistently oppose the construction of any grade crossing where it can be prevented.

If grade crossings are to be permitted to be constructed, in the face of the statute, from any consideration of economy, in dollars and cents, this company declines to be a party thereto and declines to assume any responsibility therefor.

The only possible way in which grade crossing accidents can be avoided is to separate the grades and forever eliminate the possibility of human neg*148ligence at such points. It is from this knowledge that the policy of the company to oppose grade crossings has arisen.

Briefs were also submitted by *Mr. George H. Warrington; Mr. W. C. Shepherd; Messrs. Shotts & Millikin,*and *Mr. Charles Darlington,*representing other parties interested in similar cases.

Shauck, J.

The act under whose favor these proceedings were had is as follows:

“Section 1. That where it becomes necessary, outside the corporate limits of a city or village, for the track of a steam, street, electric or interurban railroad company to cross the track of another steam, stree.t, electric or interurban railroad company, unless the manner of such crossing shall be agreed to between such companies, it shall be the duty of the court of common pleas of the county wherein such crossing is located, or a judge thereof in vacation, on application of either party, to ascertain and define by its decree the mode of such crossing which will inflict the least practical injury upon the rights of the company owning or operating the road which is intended to be crossed; andf if in the judgment of such court or such judge thereof, it is reasonable and practicable to avoid a grade crossing, it shall'by its process prevent a crossing at grade; but in determining the mode of such crossing, no grade shall be required to exceed the established maximum or ruling grade governing the operation by motive power of that division or part of the company on which the improvement is to be made, without the consent *149of the company; nor shall either company’s tracks he required to be placed below high water mark.

“The court shall, in its order, equitably apportion the initial expense of such construction or crossing and the expense of maintenance thereof among the parties interested. Any party feeling itself aggrieved by the decision of said court shall have the right of appeal as in other civil cases.

> “Section 2. Nothing in this act shall prevent any railroad company from laying additional tracks at existing crossings.”

The validity of the act is not questioned. Indeed, it is not left in doubt since the decision of this court in *Lake Shore and Michigan Southern Ry. Co.*v. *The Cincinnati,*S. *& C. Ry. Co.,*30 Ohio St., 604. It is an exercise of the police power of the state for the protection of the lives and limbs of those who operate trains and electric cars, and of those who travel upon them. A consideration of the interests of carrying companies may not have contributed to the passage of the act, but those interests are sufficiently guarded. The brief filed on behalf of the Pennsylvania Company is attractive because of its insistence that it and all other carriers shall be required to perform fully the enjoined duty to employes and to the public. In view of the longevity of corporations and the durability of bridges of modern construction, and the damages which result from the many collisions occurring at grade crossings, the attitude of that company may also be entirely consistent with the most comprehensive view of its own interests.

While the act is not, in all respects, so complete, or so clear, as to entitle it to be regarded as a *150model for future legislation, the provisions involved in these cases are quite clear. The act plainly declares the policy of the state to be against crossings at grade. That conclusion necessarily results from the provision that the court shall prevent grade crossings whenever it is reasonable and practicable to do so. The court is expressly required to apportion ratably among the parties interested, both the costs of constructing the crossing and the expenses of maintaining it. In this respect it applies the principle of former legislation which was interpreted and approved in the case above referred to. We cannot say that the equitable apportionment of these costs and expenses must necessarily be their equal apportionment as was ordered in the present cases. But here was no evidence tending to show that their equal apportionment would be inequitable, and the court followed the natural presumption that the separation of the grades would result to the equal benefit of the parties interested, and that they should contribute equally to the accomplishment of the purposes for which the statute was enacted. In all respects which are material to any question here presented, the act is substantially the same as that enacted in the state of Pennsylvania in the year 1871. The act has been repeatedly construed and applied bj' the supreme court of that state consistently with its obvious purpose to put an end to grade crossings in the cases to which it applies. Indeed, the frequency with which that court has reiterated the same views can be explained only by the persistency of the courts of first instance in that state in finding that it was not practicable *151to. avoid grade crossings, thus calling upon the supreme court to intervene to the end that the obvious purpose of the statute might be permanently realized, and that its provisions might not be evaded by artifice or by improper interpretation.

It is true that the legislature has not seen fit to authorize the intervention of the courts to determine the matter of crossings, except in cases where the companies are unable to agree with respect thereto, and counsel for The Toledo Terminal Company insist that the courts were with-, out jurisdiction in the case to which it is a party, because the inability of the companies to agree does not appear. The statute does not require a disagreement leading to violence. A sufficient disagreement appears in the briefs before us and in the divergent views respecting their rights which were presented in the courts below.

Counsel for The Toledo, Fostoria & Findlay Railway Company urge that the order of the circuit court in the case to which it is a party, is erroneous, because the company had a right to locate its road in the highway with the consent of the commissioners of the county, that the court could not order an overhead crossing in the highway where, according to its own finding, it would be a source of interruption to public travel, and that the court was without power to change the place of crossing. ' Paraphrased, the proposition seems to be, that the junior company may defeat the operation of the statute by voluntarily choosing a place of crossing at which it will not be practicable to separate the grades. The circuit court» *152very properly concluded that the conditions which would forbid an overhead crossing must not be voluntarily chosen by the company, and it enjoiried' the crossing at grade, because practical opportunities for an overhead crossing were at hand. The point was so disposed of in the *Perry Co. Railroad Extension Company*v. *The N. & S. Valley Railroad*Company, 150 Pa. St., 194.

Though we are not charged with the duty of weighing conflicting evidence for the purpose of determining its weight, we have examined the records in these cases to see that the proceedings of the circuit courts are in accordance with the provisions and purpose of the statute, that their findings of fact are sustained by substantial evidence, and that they support the orders which the courts made.

*Judgments affirmed.*

Price, C. J., Crew, Summers, Spear and Davis, JJ., concur.