(Eighth Circuit — Cuyahoga Co., O., Circuit Court

Jan. Term, 1898.)

Before Hale and Marvin, JJ. (Caldwell, J., absent.)

#### MICHAEL SCHAAFF ET AL. v. THE CLEVELAND, MEDINA & SOUTHERN ELECTRIC RAILWAY CO. ET AL.

*Street Railroad on country roads*— Property *owner's right to in*junction—

.A street railroad located in a public highway, furnishes a legitimate mode of travel or transportation, and imposes No additional burden upon the lot-owner, and he is entitled~~tb no compensation whether he owns the fee to the center of*the street, or whether the title of the hig way or the street is in the public. But when the location o£ a street railroad upon the highway appropriates any substantial property right of the lot-owner| he is entitled to an injunction to prevent the appropriation of that propert right until it has been appropriated in the man er pointed out by the constitution and the statutes.

Hale, J.

■ We have been examining this case up to within a very few sminutes and have formulated no opinion and shall deliver none, but simply announce the conclusion which we have reached.

The rights of a street railroad to occupy a portion of a highway — whether a street, or a public highway in the country, is quite definitely settled by the case of Railway v. Cumminsville, 14 Ohio St., 523, and it seems to be thoroughly settled everywhere, that a street railroad located in a public highway, furnishes a legitimate mode of travel or transportation, and if that is all that appears, it imposes no additional burden upon the lot-owner, and he is entitled to no compensation whether he owns the fee to the center ■of the street, or whether the title of the highway or the street is in the public. If the occupancy of the street is a *253lawful one, then the lot-owner must bear any incidental burden incident to that lawful occupancy of the street. ‘The running of a line of omnibuses upon the street or highway might be some inconvenience to the lot-owner, but he would not thereby be entitled to an injunction to prevent its use in that way. But when the location of a street railroad upon the highway appropriates any substantial property rights of the lot-owner, he is entitled to an injunction to prevent the appropriation of that property right until it has been appropriated in the manner pointed out by the ■constitution and the statutes.

It becomes a question of fact,whether the case before us, ■under the testimony upon which the case has been submitted, establishes with that certainty the fact that such prop- ■ erty rights have been invaded as will entitle the plaintiff to an injunction. We have examined, with a view of solving this proposition, a number of cases, among which are the following:

35 Minnesota, 112; 27 Wisconsin, 194. In this latter case, ¡the complaint was that the track of a street railroad was so ■laid as to interfere with the occupancy of a store by not leaving sufficient space for drays to be backed up to the door, ¡and the court held, in substance, that such occupancy of a ■street is not one the lot-owner is entitled to.

50 New York, 206: If we disregard the distinction made in New York between the rights of the lot-owner who owns to the center of the street, and those who own to the mar:.gin of the street,that case is quite pointed in sustaining the rights of the company. It was alleged that the railroad track ran so near the lot as to prevent the driving of a car-riage up to the side-walk; but the court held, that as the ■ title of the street was in the public, the petition made no ■cause of action for an injunction. So far as we have been ¡able to find, the state of New York is the only state that *254makes a distinction between the easement which the lot-owner has in the street, whether he owns to the center or to the margin.

*Herrick & Hopkins, L. M. Schaff,*for Plaintiffs.

*Geo. McKay, Johnson & Hackney, Newman & UUman,.*for Defendants.

35 California, 325; 3 Philadelphia, 259; 125 Massachusetts, 515; 79 Maine, 336, 91 New York, 145;. all have more or less bearing upon this question; and in none of them, under the facts, was it held that the complainant was entitled to an injunction.

We have reached the conclusion that the facts established by the affidavits upon which the case has been submitted, do not so clearly establish the fact that property rights have been invaded as to entitle the parties to an injunction.

We would not hold, if it clearly appeared that property rights were being invaded and appropriated,that an injunction would not lie for the reason that the party has a complete remedy at la'w. We refrain from commenting upon the facts, because the ultimate rights of the parties must' be settled in a claim for damages, The road, of course, going through, an injunction would be only a temporary expedient to stop it until settlement were made. If the parties are entitled to compensation, they-must get it in the-way of damages.

In view of the doubt we have under the proof,we simply say that we think the injunction should be dissolved, and leave the parties to any other remedy that they may have;, and that will be the order.