Cincinnati daily press. [volume] (Cincinnati [Ohio]) 1860-1862, 1860-04-05


an injunction between ROBERT HOSEA ASr
oTHERs, Of the one part, and the ONO AM
MISSISSIPPI RArIRoAD CoMPAxY AND OTHERS
of the other, the Superior Court of this city
decided 10 forbid the latter party to construct
track along Front-street, to connect the
depots of the Ohio and Mississippi and the
Little Miami Railroads. The plaintiffs, being
property holders on that street, applied for
the injunction on the ground that the pro-
posed track would interrupt travel on the
street, and thereby prove injurious TO Their
property and obstructive to their business
and upon this ground the injunction was
granted; "and thereby" says the Gazette,
with unusual discretion, "the important prin-
ciple was established that the City Council
has no right to authorize the use of the streets
to the interruption of business or the injury
ofproperty"
1t is q question of some moment, and Of
some intricacy also, what are the respective
rights and powers of all the parties in the
premises. The parties themselves, or those
which make themselves so, are pretty nu-
merous. They are, l. The public; 2. The City
Council 3. The Courts; 4. The property
holders; 5. In the case Of railways, the COM
pany or corporation by which they are to be
constructed. 1t is not to be wondered at
that men and Courts become bewildered
among so many conflicting interests and ju-
risdictions; and there is nothing that is more
wanting at this time, than a complete review
of all the principles which the matter may
involve--a 'leadiug case" to serve as pre-
cedent in future proceedings.
The suing parties in this case are the pro-
prietors Of the land upon each side of a street
already in use by the public, upon which
company proposes to lay the instrumental
ties for style of transit hitherto unknown
to that locality. There is no complaint on
the part of the public. The City Council,
proposing to speak in its behalf, has given its
assent to the proceeding upon which the
proprietors interfere, with claim that the
new use to which the street is to be put, will
greatly injure, not the public, nor any por-
tion of the same, but misunderstanding
their business and reducing the value of their
property. This is the ground of the com
plant; and is, also, substantially the ground
of the Injunction. " Ft.4
The general doctrine in respect to high
ways is this; "The owners of the land on each
side go to the center of the road, and have
the exclusive right to the soil, subject to the
right ofpGssage in the public" That is to say,
the first and paramount right in thorough
fare, to which all other rights and in
terests are subordinate, is the public right
1t is to be exercised, of course, without wan
ton or unnecessary injury to individual own
ers; but it is also to be exercised without ref
erence to their particular interests. The
travel along road or street may be of such
a character as totally to destroy the value of
their property; and yet, so long as it is legit-
mately conducted, they have no valid claim
of redress. In short, although q qualified
title, the right of the public is, within its
limits, imperative. ......
The proprietors Of the land gain right to
complain. l. When there is perversion of
the street from its legitimate purpose as
thoroughfare; and 2. When, continuing to be
thoroughfare, it is so used as to do wanton
or unnecessary injury to their property. 1t
does not appear to have been shown in the
proceeding to which reference has been made,
that there was danger of the occurrence of
either of these events. Wanton and un-
necessary injury is a thing that can not be
anticipated; and, therefore, ,furnishesno ground
for a prospective injunction; and the ques-
tion whether in general the use of street as
the location of railway is such perversion
of it from its legitimate purpose as to Justify
proceedings to restrain, appears to have been
evaded.
We do not see that the decision of the
Court in fact decides anything, except that
an injunction shall be allowed. 1t may be
the fault ofthe report, but. if not, it is pecu-
liariy loose and multifaced production. 1t
admits, as we understand it, the power of the
City Council to permit the use of the streets
to railway companies then sets up para
mount power in the proprietors Of the ad-
joining property "to compel the city, who is
the trustee, to prevent the use from being
perverted d'-without giving any rule by
which what constitutes perversion may be
ascsrtained and finally forbids, not the City,
nor the Council, but the Railway Company
from further proceeding. Who is to be the
Judge whether this or that act is perversion
does not appear; but the idea seems to be |
that, in this particular case, the wishes of the
property-holders ought to govern; and that
it was the duty of the Court to put those
wishes in as imposing a form as possible, and |
give them to the public as the grounds of its
action in the premises.