646 OHIO DECISIONS. Vol. XXVIII. 172 dedicated, or appropriated, to subserve the purposes of public travel and transportation. Street cars, whether moved by horses, cable or electricity, are considered "improved means of travel, in furtherance of the ordinary use of the highway," and not a new and different use. use is not changed; it is only a different mode for the use. The City & Bergen R. R. Co. v. Jersey City & Hoboken Horse R. R. Co., In Jersey 20 N. J., Eq., 91, language was used which is applicable to all street railways: The cars will stop in front of every door, and carry persons from one point on the line to any other to which they may desire to go, and the great use or advantage of them is to those whose property is taken for the street and whose lands adjoin it. using the public streets to a greater advantage for the very purpose for They are but means of which they were laid out, free and quick transit from one point to another; they are the best and cheapest mode yet devised; and they do not hinder the use of the street for public travel, and hardly, and in a very small degree obstruct travel on the part of the street occupied by the tracks, except the few inches used for the iron rails." The abutter, at the time the land was dedicated or appropriated, may not have actually anticipated that it was to be used for street cars, especially if the street was old, as the one in question is, but that is no reason for the claim that the ground should be rededicated or reappropriated. And it is also true that he may not have actually anticipated that the street would be paved with asphalt or blocks of granite. But that would not vindicate a demand that he should be again compensated for the appropriation of the land. There is just as much reasonableness, however, in one claim as in the other tht I have hypothesized. In law, both of these events are presumed to have been in the contemplation of the parties. It has been said that there is no substantial difference between the use of the street by omnibuses and coaches and by horse cars, and it seeems true. It is equally true that there is but a slight substantial difference between the use of the streets by horse cars and electric cars. The object and end of their use is identical, namely to facilitate public travel on the street. The electric car does not occupy as much space longitudinally. It can be started sooner, can be moved more rapidly, and be stopped quicker. Booth's Law of Street Railways, sec. 83. That loud, churning and pulsating noise" and its accompaniment, a "peculiar humming sound" have been reduced to a minimum, so that it is not any worse than a horse car. Its greater danger from the use of electricity has been probably exaggerated. new It was insisted that the wires and poles would impose a new servitude on the street. But they would not. They are no more a burden than hitching posts, shade trees and lamp posts would be. 3 C. C. Rep., 428. In Halsey v. The Rapid Transit Railway Company, 20 Atl. Rep., 859, the prevailing notion was thus expressed: "They" (the wires and poles) "form part of the means by which a new power to be used in the place of animal power, is to be supplied for the propulsion of street cars, and they have been placed in the street to facilitate its use as a public way, and thus add to its utility and convenience. whole matter may be summed up in a single sentence: wires have been placed in the street to aid the public in right of free passage over the street. This being so * * * The exercising their The poles and *** they do 172 Sells v. Street Railway Co. not impose a new burden on the soil, but must, on the contrary, be regarded, both in law and reason, as legitimate accessories to the use of the land for the very purpose for which it was acquired." But none of these considerations can be predicated of steam railroads when laid out in a public highway. That is not where such roads are usually constructed. They do not facilitate the kind of public travel and transportation that go to the public streets. The length of their trains, their great noise, the time and space it requires to stop them, tend to drive off of the street public travel by other vehicles and by pedestrians. The two uses of the street cannot be harmonized. It is, therefore, an additional servitude on the location of the street, and before it can be built the public street, or enough of it, must be appropriated by the power of eminent domain, and the constitutional compensation paid, or secured to be paid, to the abutting lot owner when he objects to the use; and he may invoke the aid of equity to stop the construction till that is done. I may not have marshalled all of the reasons, or stated them as they should be, why street railways, including electric street railways, have been, with one accord, adjudged by the courts not to be per se a new servitude on the street. This disposes of one of the complaints of the plaintiff. If a street railway of any class is so constructed as to "materially impair the incidental rights of an abutter in the street, some of which have been mentioned, it is an additional burden, and he is entitled to compensation. For illustration, this rule applies when the street has to be altered for the sole and exclusive accommodation of the street railway company, whereby the abutting lot owner's right of access is intercepted or impaired. It was just such cases as these to which the Supreme Court, in the 48th Ohio St., case alluded, when it stated that it would not determine how far a street railway corporation might be required to respond for "damages incidentally caused to another." The proposition is also sustained by the decision in the 14th Ohio. St., case. The plaintiff attempts to make a case of damage to his incidental rights in Fourth street. A public market, he says, has been carried on there for over forty years; it is now being carried on. The sellers, gardeners and farmers occupy a portion of the street on market mornings. A large business has been built up there. The construction of the street railway will drive that business away. That would diminish the value of his property at least thirty per cent. This complaint suggests the mention of an historical incident. It is said that when Stephenson, who was first in making a successful adaptation of steam engines to railways, was trying to obtain the consent of the British Parliament to establish a railroad, he encountered a great deal of conservatism and prejudice. The Tory Squires were seized with a panic. They fought his measure, and pictured to Parliament how the game would be frightened to death, the coaching inus superseded, and their breed of horses become extinct-all results of the new mode of travel. Then to clinch the argument, they drew a picture of the catastrophe that would follow if a bull should attempt to butt a locomotive off the track. The complaint of the plaintiff about the market disappearing to the depreciation of property on Fourth street is all prophecy and speculation; it is not proved by the affidavits that it will happen. Besides, if it did, it would not be a damage to any incidental right in the public street which he possesses. His interest in the continuance of the market at that place, is not one of his incidental rights in the street, which can be, in law, impaired by the construction of the street railway. The complaint that the portion of the street outside of the street railway tracks would be too narrow to permit marketers to use it, and people to pass and repass on it, was met and answered by the affidavits of the defendant. It is also charged, in a general way, too general to be good pleading, that this narrowing of the street will deprive him of the easement of access to his property. It was claimed that vehicles could not stand at right angles with the street between the outside rails and the curbing. The evidence does not sustain this claim, or that it would even interfere with the exercise of that right; but, if it did, the law, as announced by the Pennsylvania Supreme Court, is pertinent. is claimed," said the court, "for the plaintiffs, that their right of free passage to their property along High street, is interfered with, because vehicles cannot stand between the railway tracks and the curbing without interfering with the cars. But the right of the property owner in this respect is not at all changed. He has the same right, after the tracks are laid, and the cars running, that he had before. It is a right which must be exercised in reason, whether there are car tracks on the street or not. In no circumstances does it confer the privilege of obstruction by unreasonable exercise. But the reasonable exercise of the right, gives no right to the street car companies to arrest it. If, at any time, the owner has occasion for the presence of vehicles in front of his property on the street, to take away or deliver persons or goods, he may exercise that right for such reasonable time as is necessary for his purposes; and if, in such exercise of the right, the passage of street cars is impeded, the street cars must wait. Such stoppage of cars is a matter of hourly occurrence in all large towns and cities where street car tracks are laid upon narrow srteets. Rafferty v. Central Traction Co., 23 Atl. Rep., 885 (Pa. 1892). The respective rights of the abutter and street railway company can be harmoniously exercised. They must be so exercised. I think it is a subject matter of pride and congratulation for the local bench and bar, that a member of the latter, Mr. Booth, has written a book which will redound to his honor, the subject being "The Law of Street Railways." He has drawn out of the wilderness of reported cases an outline of the principles of the law on that subject. The book was written with conscientious care and commendable research. The arrangement of the topics is logical: the style is very clear and precise, and is neither too concise or too diffuse. A legal treatise being "an orderly statement of the principles in which the law consists, whether drawn from the reports of law cases, from natural reason, or from any other source, accompanied by such illustrations and references to authorities as to render them plain in their application, and accurate in outlines, and settle to the inquiring mind the fact that they are truly the law," this book belongs to that category. It will undoubtedly promote the science and practice of law. For the reasons given in this opinion, the temporary restraining order heretofore granted is vacated, and the plaintiff's motion for an injunction overruled. Geo. L. Converse and G. J. Marriott, attorneys for plaintiff. Booth and James Caren, attorneys for defendant. 209 Gorman, Adm'r, v. Railroad Co. DOMICILE. [Defiance Common Pleas, 1892.] *MARTIN B. GORMAN, ADMR., v. B. &. O. & C. R. R. Co. 209 Where a person is killed while removing from the state, bis domicile for the purposes of the appointment of an administrator is the county from which he removed, and not the one in which his death occurred, if a different one. SHOCK, J. Joyce was a resident of New Straitsville, Perry county, Ohio, and started to emigrate to Lake Crystal, Minnesota, and was in charge of a car containing live stock and household goods, and was killed while in transit, in Defiance county, Ohio. The probate court of that county appointed the administrator, who brought suit against the company for negligence in causing the death of Joyce, who was killed on the twentysixth of September, 1890. Upon the trial the point was made that the domicile of the deceased was Perry county, Ohio, and although he had left that county with the intention of never returning, yet that that domicile continued until a new one was obtained. Therefore, at the time of his death he was an inhabitant of Perry county, Ohio, and under sec. 5994 of the Rev. Stat., that county alone had jurisdiction to appoint the administrator, and that the appointment in Defiance county was without jurisdiction and void. After elaborate and extended arguments, the court sustained the point and directed a verdict for the defendant.— [Editorial. MUNICIPAL CORPORATIONS. [Superior Court of Cincinnati, General Term, June, 1892.] 223 ROSS H. FENTON ET AL. V. S. PHELPS Cheseldine et al. Jacob Burnet and Rebecca Burnet, his wife, on August 4, 1818, by deed duly executed and recorded, dedicated to the city of Cincinnati, a lot or strip of ground fifty-four (54) feet in width, on Sixth street, extending from Elm street to Western Row, the condition or consideration of such grant being that the city of Cincinnati should establish a market on Sixth street between the two named points. Held: 1. That a grant for this establishment of a public market is to be construed as implying everything necessary to its reasonable use and enjoyment, and as against such grant, neither grantor nor his successor in title, an abutting property owner, can acquire any right except by means of an ouster or adverse use, and such adverse use must be a denial of right in the city to use the square so granted for market purposes. 2. That general authority was conferred upon the city of Cincinnati by its special charter to establish and regulate market houses and market places, and the same authority exists under the general municipal corporation act now in force. HUNT, J. This action comes into this court on error to the special term, and seeks to reverse the judgment of the court below in refusing to restrain the defendants from erecting a permanent iron and glass building for *A contrary decision will be found in Astram v. Ten Eck, post 665. Superior Court of Cincinnati. 223 the purpose of a flower market on Sixth street, between Elm and Plum streets, in the city of Cincinnati, and in dismissing the petition. The petition alleges that certain of the plaintiffs are the owners of sundry freehold and leasehold estates in land with buildings thereon erected for business purposes, abutting upon both the north and south sides of Sixth street, between Elm and Plum streets, in the city of Cincinnati; that said Sixth street is a public highway, and that defendants are about to erect, and unless restrained by this court, will erect upon said street in front of the properties of the plaintiffs a permanent iron and glass building some two hundred feet in length, thirty-six and onehalf feet in width, and two stories in height; that the occupation of the public street by a building of such dimensions would greatly interfere with the public travel thereon, interfere with and obstruct the egress and ingress to and from the plaintiffs' properties, and render many of plaintiffs' buildings valueless for the business for which they are now occupied and for which they were built, and would greatly depreciate the value of the land upon which they stand, and that such an obstruction of the public street would work great and irreparable damage to said property. It appears from the answer of the defendants that Mary E. Holroyd died in this county on or about April 8, 1890, leaving a last will and testament which was afterwards duly probated and admitted to record in the probate court of this county, and is still in full force and effect. The provision which relates to the controversy is as follows: "Section 30. I love Cincinnati, and, if practicable, I would be glad to leave in it, from me, some memorial to my deceased husband, Jabez Elliott; and as I have always had a tender fondness for flowers and believe that floriculture tends to refine and elevate human nature, and as my attention has frequently been drawn to the unsheltered condition of the flowers and those who have them for sale, exposed to all weathers in an open market place, I would like to erect on Sixth street, or some other place in Cincinnati, which shall seem suitable to my executors, a building to be the Jabez Elliott Flower Market, which shall be ornamental to the city and a protection to the flowers and shrubs which may be brought to the market, and to those who have them for sale. "I therefore give and bequeath to my executors, S. Phelps Cheseldine and Clifford B. Wright, and to the survivor of them, ten thousand dollars in trust nevertheless for the following purposes, viz.: "That as soon as may be after my decease they request the proper authorities of the city to furnish a suitable location on Sixth street market space, or elsewhere in said city, for the erection of said flower market. It such location shall be furnished by the city within one year after my decease, then said trustees shall cause plans to be made for a suitable building, to cost when completed not less than ten thousand dollars, which plans shall be submitted to the proper authorities representing the city. And if plans satisfactory to said trustees shall be approved by said city authorities, said trustees shall proceed at once to erect such buildings according to such plans on the location so furnished. "If ten thousand dollars should be found insufficient to complete said building as desired, then I give and bequeath to said trustees a sufficient sum in addition not exceeding five thousand dollars to coplete the same. |